Terms and Conditions
1. ACCEPTANCE
1.1 This Agreement is between Finesse Advisers Pty Ltd ABN 30 628 007 054 its successors and assignees, (referred to as “we”, “us”, “our” or “Company”), and the Client described in the Proposal (referred to as “you” or “your”), and collectively the Parties.
1.2 You have requested the services set out in the attached Proposal (Services).
You agree and accept that these Terms and Conditions (Terms) form the agreement under which we will supply Services to you for the Term. Please read the Terms carefully. Please contact us if you have any questions.
1.3 You accept our Proposal and Terms by:
(a) signing and returning the Proposal;
(b) confirming in writing including by email that you accept the Proposal;
(c) allowing us to proceed with the Services;
(d) paying any Deposit set out in the Proposal; or
(e) making part or full payment for the Services.
2. YOUR COMMITMENT TO US
2.1 You warrant that throughout the term of this Agreement that:
(a) there are no legal restrictions preventing you from agreeing the Terms;
(b) you will cooperate with us and provide us with information and comply with requirements in a timely manner, as requested by us from time to time, that are reasonably necessary to enable us to perform the Services;
(c) the information you provide to us is true, correct and complete;
(d) you will not infringe any third-party rights in working with us and receiving the Services;
(e) before attempting to resolve any issues yourself or using a third party, you will inform us if you have reasonable concerns relating to our provision of Services under the Terms, with the aim that we and you will use all reasonable efforts to resolve the concerns;
(f) you agree and acknowledge that our Services do not intend to be for claim to be financial, legal or taxation advice, and nothing in the Services is intended to be professional advice and should not be relied on as such. You should obtain specific financial, legal or other professional advice before relying on the services; and you are responsible for obtaining any consents, licences and permissions from other parties necessary for the Services to be provided, at your cost, and for providing us with the necessary consents, licences and permissions.
2.2 You warrant that you will not canvass, employ, induce or attempt to employ, induce, solicit or entice away from us, any employee or contractor that was employed by or contracted to us during the term that we provide Services to you or the prior twelve (12) month period.
2.3 You acknowledge that electronic services are subject to interruption and breakdown and all non-electronic services are subject to disruption, and therefore:
(a) the Services will not be error-free or uninterrupted; and your access to the Service and the operation of the Service will not be error-free or uninterrupted; and
(b) we reserve the right to continue to provide the Services and/or invoice you for the Services in the event of any disruption, other than a disruption caused by our negligence or wilful acts or omissions.
3. OUR SERVICES
3.1 We agree to perform the Services set out in the Proposal with due care and skill for the Term.
3.2 We may provide the Services to you using our employees, contractors and third-party providers and they are included in these Terms.
3.3 Third parties who are not our employee or our direct contractor (Third Parties) will be your responsibility. We are not responsible for the products or services provided by Third Parties.
3.4 All live online sessions will be conducted on AEST.
3.5 Online sessions may be recorded and sent to you upon request in our discretion. We will endeavour to store or archive all electronic files used in the production of your Services. However, we provide no guarantee that any stored or archived files can be retrieved in the future, and it is your responsibility to have copies saved.
3.6 Cancellation/Rescheduling:
(a) In the event that you cancel the Services in its entirety prior to the Start Date, we will be entitled to retain [20%] of the total Fees, and we will refund the remainder of any money received. If no payment has yet been made, you must pay to us [20%] of the quoted Fees, payable by you within 7 days of receipt of an invoice for that amount.
(b) You must provide us with at least 24 hours’ notice in writing of any cancellation or rescheduling of a session. Failure to do so may result in forfeiture of that session in our sole discretion.
3.7 Refunds: To the extent permitted by law, you will not be entitled to refunds of any kind.
4. PRICE, INVOICING AND PAYMENT
4.1 If set out in the Proposal, we will not commence performing our Services until you have paid of our Fees in full, unless otherwise agreed between Parties.
4.2 You agree to pay us the amounts set out in our Quote, including any Deposit required. All amounts are stated in Australian dollars. All amounts exclude Australian GST (where applicable). Payment may be made by way of credit card or other payment methods as set out in our Quote when purchasing our Services.
4.3 You agree to pay our Invoices by the payment date set out on the Invoice. If you do not pay by the payment date (including any other services we have provided to you), we may cease to provide the Services to you until we receive payment.
4.4 We may charge interest at a rate equal to the Reserve Bank of Australia’s cash rate from time to time plus 8% per annum, calculated daily and compounding monthly, on any amounts unpaid after the payment date.
4.5 If invoices are unpaid after the payment date, we reserve the right to take steps to recover any outstanding professional fees and outlays owing to us. In the event of non-payment, we have the right to engage debt collection services for the collection of unpaid debts, the right to commence legal proceedings for any outstanding amounts owed to us and the right to take any other adverse action against you as we consider appropriate. If any action is required to recover amounts owing to us (including without limitation issuing and receiving any correspondence, commencing court proceedings, taking enforcement action and so on), you acknowledge and agree that you are liable for and must pay all costs including without limitation debt collection, commission, charges, costs and any out-of-pocket expenses (including all legal costs and legal fees on an indemnity basis and all fees charged by counsel).You agree to indemnify us against any costs we may incur in recovering payment of any unpaid invoices.
4.6 We reserve the right to report bad debts to independent credit data agencies.
5. VARIATIONS
5.1 The Fee and Services can only be varied by written agreement between us, including by email.
5.2 We may at any time, in writing, inform you of the need for us to perform a Variation.
5.3 If you request a Variation to the Services, we have discretion as to whether we make the Variation.
5.4 Variations will not invalidate these Terms or be regarded as a repudiation of these Terms by us.
5.5 If in our reasonable opinion a Variation requires additional time to perform the Services, then we will amend the term of this Agreement after consultation with you.
5.6 If we need to charge an additional fee for a Variation (Additional Fee), then we will provide a written quote for the Additional Fee to you prior to commencing performance of the Variation. If:
(a) you accept the quote for the Additional Fee then these Terms are amended to incorporate the Variation but otherwise remain the same; or
(b) you do not accept the quote for the Additional Fee where we informed you of the need for us to perform a Variation then we may in our discretion terminate these Terms immediately.
5.7 If we are unable to accommodate a Variation requested by you, we may consult with you to find a feasible adjustment. Should a mutually agreeable solution not be reached, we reserve the right to invoice for Services performed to date and terminate these Terms.
6. OUR INTELLECTUAL PROPERTY
6.1 We own the intellectual property rights in:
(a) our pre-existing Intellectual Property, including but not limited to copyright which subsists in all creative and literary works incorporated into our pre-existing Intellectual Property; and
(b) Intellectual Property that we create during the course of the Services, including but not limited to copyright which subsists in all creative and literary works in all Intellectual Property that we create during the course of the Services; unless we assign or transfer this to you. This Intellectual Property is protected by Australian and international laws.
6.2 Nothing in these Terms constitutes an assignment or transfer of our Intellectual Property rights, or a right to use our Intellectual Property, whether registered or unregistered, except as stated in these Terms or with our written permission.
6.3 You must not breach our intellectual property rights by, including but not limited to:
(a) altering or modifying our Intellectual Property;
(b) creating derivative works from the Intellectual Property; or
(c) using our Intellectual Property for commercial purposes such as on-sale to third parties.
6.4 This clause will survive the termination of these Terms.
7. YOUR INTELLECTUAL PROPERTY AND MORAL RIGHTS
7.1 You agree to provide information including any Intellectual Property to us to enable us to provide the Services. You:
(a) warrant that you have all necessary rights to provide the Intellectual Property to us;
(b) grant us a perpetual, non-exclusive, royalty-free, irrevocable, worldwide and transferable licence to use the Intellectual Property in any way we require to provide the Services to you; and
(c) consent to any act or omission which would otherwise constitute an infringement of your Moral Rights.
7.2 If you (or any employee or agent) have Moral Rights in any Intellectual Property that you provide to us, you:
(a) irrevocably consent to any amendment of the Intellectual Property for the purposes of us providing Services to you and to our using or applying the Intellectual Property for the purposes of providing Services to you without any attribution of authorship;
(b) agree that your consent extends to acts and omissions of any of our licensees and successors in title; and
(c) agree that your consent is a genuine consent under the Copyright Act 1968 (Cth) and has not been induced by duress or any false or misleading statements by us.
7.3 This clause will survive the termination of these Terms.
8. CONFIDENTIAL INFORMATION
8.1 We, including our employees and contractors, agree not to disclose your Confidential Information to any third party; to use all reasonable endeavours to protect Confidential Information from any unauthorised disclosure; only to use the Confidential Information for the purpose for which it was disclosed by you and not for any other purpose.
8.2 You agree not to disclose our Confidential Information to any third-party; to use all reasonable endeavours to protect Confidential Information from any unauthorised disclosure; and only to use the Confidential Information for the purpose for which it was disclosed or provided by us to you, and not for any other purpose.
8.3 These obligations do not apply to Confidential Information that:
(a) is authorised to be disclosed;
(b) is in the public domain and/or is no longer confidential, except as a result of breach of these Terms;
(c) is received from a third party, except where there has been a breach of confidence; or
(d) must be disclosed by law or by a regulatory authority including under subpoena.
8.4 The obligations under this clause will survive termination of these Terms.
9. FEEDBACK AND DISPUTE RESOLUTION
9.1 Your feedback is important to us. We seek to resolve your concerns quickly and effectively. If you have any feedback or questions about the Services, please contact us.
9.2 If there is a dispute between the Parties in relation to these Terms, in the first instance the Parties agree to the following dispute resolution procedure:
(a) The complaining Party must tell the other Party in writing, the nature of the dispute, what outcome the complaining Party wants and what action the complaining Party thinks will settle the dispute. The Parties agree to meet in good faith to seek to resolve the dispute by agreement between them at an initial meeting.
(b) If the Parties cannot agree how to resolve the dispute at that initial meeting, any Party may refer the matter to a mediator. If the Parties cannot agree on who the mediator should be, the complaining Party will ask the Law Society of New South Wales to appoint a mediator. The mediator will decide the time and place for mediation. The Parties must attend the mediation in good faith, to seek to resolve the dispute and will be equally responsible for the costs of the mediator.
9.3 Any attempts made by the Parties to resolve a dispute pursuant to this clause are without prejudice to other rights or entitlements of the Parties under these Terms, by law or in equity.
10. TERMINATION
10.1 If either Party commits a remediable breach of these Terms and does not remedy the breach at its cost within a reasonable time after receiving written notice of the breach from the other Party, then the Parties agree to engage in the dispute resolution process set out in clause 9.2 in the first instance. If the dispute is not resolved after following that process, then either Party may terminate these Terms at any time upon written notice to the other Party.
10.2 We may terminate these Terms immediately upon written notice to you, if:
(a) you commit a non-remediable breach of these Terms;
(b) you fail to provide us with clear or timely instructions to enable us to provide the Services;
(c) we, acting reasonably, consider that our working relationship has broken down including a loss of confidence and trust;
(d) for any other reason outside our control which has the effect of compromising our ability to perform the Services within the required timeframe; or
(e) you fail to pay an invoice by the due date.
10.3 You may terminate these Terms immediately upon written notice to us if:
(a) we commit a non-remediable breach of these Terms; or
(b) you, acting reasonably, consider that our working relationship has broken down including a loss of confidence or trust.
10.4 On termination of these Terms in accordance with clause 10.2 or clause 10.3 you agree that any Deposit or payments made are not refundable to you to the extent of all Services provided prior to termination, including Services which have been performed and have not yet been invoiced to you.
10.5 On termination of these Terms, you agree to promptly return (where possible), or delete or destroy (where not possible to return), our Confidential Information and Intellectual Property, and/or documents containing or relating to our Confidential Information and/or Intellectual Property.
10.6 On termination of these Terms, we agree to promptly return (where possible), or delete or destroy (where not possible to return), your Confidential Information and Intellectual Property, and/or documents containing or relating to your Confidential Information and/or Intellectual Property.
10.7 On completion of the Services, we will retain your documents related to the provision of the Services to you (including copies) as required by law or regulatory requirements. Your express or implied agreement to these Terms constitutes your authority for us to retain or destroy documents in accordance with the statutory periods, or on termination of these Terms.
10.8 The accrued rights, obligations and remedies of the Parties are not affected by the termination of these Terms.
11. CONSUMER LAW, LIMITATION OF LIABILITY AND DISCLAIMERS
11.1 ACL:
If you are a consumer within the meaning of that term for Schedule 2 of the Competition and Consumer Act 2010 (Cth) (CCA), certain legislation including the Australian Consumer Law (ACL) in the CCA, and similar consumer protection Laws and regulations may confer you with rights, warranties, guarantees and remedies relating to the provision of Services by us to you which cannot be excluded, restricted or modified (Statutory Rights). Our liability is governed solely by the ACL and these Terms. Nothing in these Terms excludes your Statutory Rights as a consumer under the ACL. You agree that our liability for Services provided to an entity defined as a consumer under the ACL is governed solely by the ACL and these Terms. We exclude all conditions and warranties implied by custom, law or statute except for your Statutory Rights.
11.2 Delay:
Where the provision of Services depends on your information or response, we have no liability for a failure to perform the Services in this estimated period, which is affected by your delay in response, incomplete or incorrect information.
11.3 Referral:
On request by you, we may provide you with contact details of third-party specialists. This is not a recommendation by us for you to seek their advice or to use their services. We make no representation or warranty about the third-party advice or provision of services, and we disclaim all responsibility and liability for the third-party advice or provision of services, or failure to advise or provide services.
11.4 Warranties:
To the extent permitted by law, we exclude all express and implied warranties, and all material and work is provided to you without warranties of any kind, either express or implied. We expressly disclaim all warranties including but not limited to implied warranties of merchantability and fitness for a particular purpose. For products not manufactured by us, the warranty shall be the warranty provided by the manufacturer. To the extent permitted by law, we shall be under no liability whatsoever in respect of products not manufactured by us.
11.5 Liability:
Our liability for any Liability or Claim in relation to any Services, Proposal or these Terms (whether under statute, contract, negligence or other tort, indemnity, or otherwise) will be limited to the amount of the Fees paid by you to us in respect of the relevant Services.
11.6 We will not be liable to you for any Liability or Claim arising (whether under statute, contract, negligence or other tort, indemnity, or otherwise) in relation to any Consequential Loss.
11.7 To the extent permitted by law, we will not be liable to you for any Liability or Claim caused or contributed by:
(a) Additional Fees incurred where we must reschedule Services, staff or facilitate continuance due to unplanned delays out of our reasonable control;
(b) the Services being different to what you may have expected;
(c) any success/improvement as a direct or indirect result of implementing the tools learnt during the Services;
(d) products or services you purchase from a third party;
(e) any inaccurate or misleading information provided during the Services and any reliance by you on any such information;
(f) any loss of profit, revenue or goodwill as a direct or indirect result of implementing the tools learnt during the Services;
(g) any indirect, special or Consequential Loss arising from any breach of these Terms;
(h) implied or express guarantees, representations or conditions of any kind, which are not stated in the Terms. Each person grieves differently, and results are not guaranteed;
(i) our Services being unavailable;
(j) any delays out of our reasonable control;
(k) the corruption, deletion or changes in part or whole of the Electronic Data;
(l) difficulties in receiving, sending, accessing or utilising Electronic Data at any time; and
(m) any loss, damage, costs including legal costs, or expense whether direct, indirect, incidental, special, consequential and/or incidental, including loss of profits, revenue, production, opportunity, access to markets, goodwill, reputation, use or any indirect, remote, abnormal or unforeseeable loss, or any loss or damage relating to business interruption, or otherwise, suffered by you or claims made against you, arising out of or in connection with the inability to access or use the Services, and the late supply of Services, even if we were expressly advised of the likelihood of such loss or damage. 11.8 This clause will survive termination of these Terms.
12. INDEMNITY
12.1 You are liable for and agree to indemnify, defend and hold us harmless for and against any and all Claims, liabilities, suits, actions and expenses, including costs of litigation and reasonable legal costs, resulting directly or indirectly from:
(a) any information provided by you to us that was not accurate, up to date or complete or was misleading or a misrepresentation;
(b) your breach of these Terms;
(c) any misuse of the Services by you, your employees, contractors or agents; and
(d) your breach of any law or third-party rights.
12.2 We are liable for and agree to indemnify, defend and hold harmless for and against any and all Claims, liabilities, suits, actions and expenses, including costs of litigation and reasonable legal costs, resulting directly or indirectly from:
(a) any information provided to you by us that was not accurate, up to date or complete or was misleading or a representation;
(b) our breach of these Terms;
(c) any defect or omission in the Services from or by us, our employees, contractors or agents;
(d) our breach of any law or third-party rights in connection with our provision of the Services to you.
12.3 The Parties agree to co-operate with each other (at their own expense) in the handling of disputes, complaints, investigations or litigation that arises as a result of these Terms.
12.4 This clause will survive the termination of these Terms.
13. GENERAL
13.1 Privacy:
We agree to comply with the legal requirements of the Australian Privacy Principles as set out in the Privacy Act 1988 (Cth) and any other applicable legislation or privacy guidelines.
13.2 GST:
If and when applicable, GST or other foreign equivalent payable on our Services will be set out on our Invoices. By accepting these Terms you agree to pay us an amount equivalent to the GST or other foreign equivalent imposed on these charges.
13.3 Relationship of parties:
The Terms are not intended to create a relationship between the parties of partnership, joint venture, or employer-employee or carer.
13.4 Assignment:
The Terms are personal to the Parties. A Party must not assign or deal with the whole or any part of its rights or obligations under these Terms without the prior written consent of the other Party (such consent not to be unreasonably withheld).
13.5 Severance:
To the extent permitted by law, if any provision (or part of it) of the Terms is held to be unenforceable or invalid in any jurisdiction, then it will be interpreted as narrowly as necessary to allow it to be enforceable or valid. If a provision (or part of it) of these Terms cannot be interpreted as narrowly as necessary to allow it to be enforceable or valid, then the provision (or part of it) must be severed from these Terms and the remaining provisions (and remaining part of the provision) of the Terms are valid and enforceable.
13.6 Force Majeure:
Neither Party will be liable for any delay or failure to perform its obligations under the Terms if such delay is due to any circumstance beyond their reasonable control.
13.7 Jurisdiction & Applicable Law:
These terms are governed by the Laws of New South Wales and the Commonwealth of Australia. Each party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in New South Wales.
13.8 Entire Agreement:
These Terms and any document expressly referred to in them represent the entire agreement between you and us and supersede any prior agreement, understanding or arrangement between you and us, whether oral or in writing.
14. DEFINITIONS
14.1 Claim means any actual, contingent, present or future claim, demand, action, suit or proceeding for any Liability, restitution, equitable compensation, account, injunctive relief, specific performance or any other remedy of whatever nature and however arising, whether direct or indirect, and whether in contract, tort (including but not limited to negligence) or otherwise;
14.2 Confidential Information includes confidential information about the business, structure, programs, processes, methods, operating procedures, activities, products and services, trade secrets, know how, financial, accounting, marketing and technical information, customer and supplier lists (including prospective customer and supplier information), ideas, concepts, know-how, Intellectual Property, technology, and other information whether or not such information is reduced to a tangible form or marked in writing as "confidential".
14.3 Consequential Loss means any loss of actual or anticipated profits, revenue, savings, production, business, opportunity, goodwill, reputation, publicity, date or use;
14.4 Electronic Data means ideas, notes and information used for communications, displays, distribution, interpretation or processing by electronic and electromechanical data processing systems or electronic equipment and includes programmes, software and other coded instructions for such equipment.
14.5 GST means GST as defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) as amended from time to time or any replacement or other relevant legislation and regulations, or other foreign equivalent.
14.6 Hourly Rate means as set out in the Proposal
14.7 Intellectual Property includes any and all intellectual and industrial property rights throughout the world, whether subsisting now or in the future and includes all copyright and analogous rights, all rights in relation to inventions (including patent rights), registered and unregistered trademarks, designs (whether or not registered or registrable), circuit layouts, trade names, trade secrets, business names, company names or internet domain names.
14.8 Laws means acts, ordinances, regulations, rules, code and by-laws of the Commonwealth or any state or territory;
14.9 Liability means any loss, liability, cost, payment, damages, debt or expense (including but not limited to reasonable legal fees); 14.10 Moral Rights means the right of attribution of authorship, the right not to have authorship falsely attributed and the right of integrity of authorship, as defined in the Copyright Act 1968 (Cth).
14.11 Term means the term set out in the Proposal.
For any questions or notice, Please contact us at:
Finesse Advisers Pty Ltd
(trading as Finesse Business Advisers)
ABN 30 628 007 054
6/438 High Street, Penrith NSW 2750
Contact Person: Genene Wilson
Title: Director
Contact Number: 1300 026 800
Email:genene@finesseadvisers.com
Last update: July 2024
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