Terms for the Provision of Governance Services
1. Provision of Services
1.1 Thoughtpost Governance will provide the Services:
(a) in a professional manner with due skill, care and diligence; and
(b) in accordance with these terms and conditions.
1.2 Thoughtpost Governance will:
keep confidential, Confidential Information and not directly or indirectly disclose to any person at any time the Confidential Information, unless:
i. the Confidential Information is required to be disclosed by law; or
ii. the Confidential Information is, or has become, part of the public domain otherwise than through a breach of these terms and conditions; and
iii. provide the Services as an independent contractor and not as an employee, partner or agent of the Client.
1.3 Thoughtpost Governance may disclose Confidential Information to its officers, employees, advisers and sub-contractors to the extent necessary for the conduct of the Services, subject always to Thoughtpost Governance ensuring that any such persons are under the same obligation of confidentiality as Thoughtpost Governance is in relation to the Confidential Information.
1.4 Unless set out in the Proposal, the Services do not include:
advice of a legal nature – the Services are not to be taken as a substitute for qualified legal advice; or
provision of any venues, audio visual or catering services associated with the Services.
2. Client obligations
2.1 The Client will:
provide Thoughtpost governance with reasonable assistance, to enable Thoughtpost Governance to provide the Services; and
pay Thoughtpost Governance’s reasonable travel and accommodation expenses (outside of metropolitan Melbourne) related to the performance of the Services.
3. Intellectual property
3.1 Thoughtpost Governance grants to the Client a royalty free, non-exclusive right to use any Intellectual Property owned by Thoughtpost Governance which Thoughtpost Governance may from time to time disclose to the Client for the purpose of the provision of the Services provided that the Client receives the prior written consent of Thoughtpost Governance to:
(a) any modifications it wishes to make to any material containing Thoughtpost Governance Intellectual Property
(b) the inclusion or incorporation of any Thoughtpost Governance Intellectual Property in any separate material or documentation of any medium, including without limitation, electronic, digital or audio visual.
3.2 The Client acknowledges and agrees that all Intellectual Property owned by Thoughtpost Governance shall remain vested solely in Thoughtpost Governance and that the Client shall not be entitled to use such Intellectual Property except as permitted by these terms and conditions or as set out in the Proposal.
3.3 The Client shall take all reasonable steps to protect the Intellectual Property owned by Thoughtpost Governance and shall provide Thoughtpost Governance immediate notice of any infringement of such Intellectual Property to which it becomes aware.
3.4 Thoughtpost Governance warrants that:
(a) its Intellectual Property used in the provision of the Services is free of any encumbrances and the use by the Client of that Intellectual Property will not infringe the intellectual property rights of any person; and
(b) no fees, royalties or other payments are payable in respect of any third-party rights as a result of the use of its Intellectual Property by the Client.
4.1 The Client will pay the Fees within 14 days of the receipt of a tax invoice for the same.
4.2 If, under the provisions of any GST legislation, the Services, or any part of the Services are taxable, subject to receipt of a tax invoice, the Client will pay the amount of such taxation liability.
4.3 Unless expressly stated otherwise, all Fees are payable in Australian dollars.
5.1 Thoughtpost Governance will maintain professional indemnity insurance and public liability insurance each with a limitation of cover not less than the amount specified in the Proposal.
5.2 Thoughtpost Governance will, if requested by the Client, produce evidence of its insurance cover.
6.1 Either party may terminate the provision of the Services by notice in writing to the other party if the other party has entered into any form of insolvency, liquidation, winding-up or external administration, whether voluntary or involuntary, formal or otherwise.
6.2 The Client may terminate the provision of the Services at its convenience, by giving Thoughtpost Governance thirty (30) days’ notice in writing of its intention to so terminate and paying Thoughtpost Governance a pro rata portion of the Fees up to the date of termination.
6.3 The termination of the Services for any reason shall not extinguish the obligations of the parties pertaining to:
(a) the rights of the parties with respect to Intellectual Property; and
(b) obligations of the parties in relation to Confidential Information.
7. General matters
The Client acknowledges that Thoughtpost Governance may sub-contract part of the Services and consents to the appointment of sub-contractors provided that:
such sub-contractors have been properly identified; and
Thoughtpost Governance shall remain fully responsible for the performance of the Services by the sub-contractors.
Thoughtpost Governance agrees not to assign any of its rights or obligations under these terms and conditions without first obtaining the written consent of the Client, which shall not be unreasonably withheld.
The Client consents to Thoughtpost Governance including the Client in Thoughtpost Governance’s list of clients in advertising and promotional material.
Any notice, demand or other communication to be given or required to be made under these terms and conditions is to be in writing and is to be given by post, facsimile or email at the party’s address as set out in the Proposal or at such other address as is notified in writing by one party to the other party.
7.5 Provisions severable
If any provision of these terms and conditions is invalid, illegal or unenforceable in any respect the validity, legality and enforceability of the remaining provisions will not be affected and such invalid, illegal or unenforceable provision is to be severed from these terms and conditions
7.6 Governing law
These terms and conditions and the Proposal are governed by and construed in accordance with the laws of the State of Victoria, Australia and the parties irrevocably submit to the jurisdiction of the courts of that State.
No part of these terms and conditions and the Proposal may be amended or modified unless reduced to writing and signed by the parties or their authorised representatives.
7.8 Entire agreement
These terms and conditions and the Proposal set out the entire agreement and understanding between the parties with respect to the provision of the Services and supersedes all prior agreements, understandings and representations.
7.9 Proposal prevails
If any inconsistency arises between these terms and conditions and the Proposal, the provisions of the Proposal shall prevail to the extent of that inconsistency.
For the purposes of these terms and conditions:
“Client” means the entity named in the Proposal to whom the Services are to be provided.
“Confidential Information” means all commercial information, technical information and Intellectual Property, which is disclosed by a party and which is stated by the disclosing party as being confidential or which might reasonably be regarded by the receiving party as confidential
“Fees” means the fees set out in the Proposal.
“GST” means Goods and Services Tax payable in Australia under the A New Tax System (Goods and Services Tax) Act 1999 (Cth)
“Intellectual Property” means any registered or unregistered intellectual property rights, including, without limitation, patents, trademarks; copyright; registered or registrable designs and all other rights resulting from intellectual activity or proprietary information.
“Proposal” means the proposal attached to these terms and conditions.
“Services” means the governance services set out in the Proposal and any other services as agreed in writing between the parties from time to time.
“Thoughtpost Governance” means Thoughtpost Governance Pty Ltd ABN 55 11 031 086.