[Terms] Eurisko Services Agreement

PART A: Schedule

Proposal and Acceptance

This Schedule sets out the details of our Proposal to provide you with our Services. When you sign and date this Schedule, you will accept the Proposal and create a binding legal Services Agreement with us. The Services Agreement will have two components:

1. this Schedule; and
2. our standard Terms & Conditions.

PLEASE READ THIS SCHEDULE AND THE TERMS & CONDITIONS CAREFULLY BEFORE SIGNING.

Contract Details

1. Parties’ Details

2. Services

Insert description of Services here:

3. Fees and Expenses

Insert description of Fees and Expenses here:

4. Special Conditions

Insert any additional contact clauses here (supplementary to T&Cs), or “N/A”

Example: “The Special Conditions on the attached page that has been signed and dated by both Parties will form part of this Agreement.”

5. Signatures

EXECUTED for and on behalf of EURISKO:  MIKE BULLEN, Director

Date of Proposal: …………. / ……………… / …………………

SIGNED By the Client (if an individual): ………………………………………………………….

Print name: ……………………………………………………………………………………….

Date of Acceptance: …………. / ……………… / …………………

OR

EXECUTED for and on behalf of the Client (if Client is a company): ………………………………………………….

Name of signatory: …………………………………………………………………………………………….

Position: ………………………………………………………………………………………………………………

Full name of the Client (including ABN/ACN): …………………………………………………..

Date of Acceptance: …………. / ……………… / …………………

PART B: Eurisko Terms & Conditions

1. Introduction

1.1    These Terms & Conditions (“T&Cs”) form part of your legally binding Services Agreement with us, together with the Schedule. The two parts, taken together, make up the Agreement. If we and you agree to change any part of the Agreement, this must be done in the way set out in clause 12.7.

1.2    These T&Cs use defined terms, and certain rules apply to the interpretation of the T&Cs. These definitions and rules are set out in clause 13.1 below.

2. Formation and Term

2.1    This Agreement commences on the day you indicate that you accept the Proposal by signing the Proposal (which then becomes the Schedule), or on the day we first start providing Services to you, whichever is first.  The Agreement is conditional on you making your first Fee payment, meaning that we don’t have to proceed to provide any Services until we receive that payment.

2.2    The Agreement expires 12 months after the date shown in the Schedule as the end date for the Services, or 12 months after the date on which we stop providing the Services, whichever is later, unless the Agreement is terminated earlier (as allowed by these T&Cs), or we and you agree to extend the term of the Agreement. Any parts of these T&Cs that are identified as having continuing operation will survive the termination or expiry of the Agreement.

3. Basic Agreement

We agree to perform the Services for the Fees and Expenses indicated in the Schedule, according to the Scope of Works and Milestones shown there, and all other requirements of these T&Cs. You agree to pay the Fees and Expenses, and do all other things required by these T&Cs.

4. The Services

4.1    We guarantee that we have the experience and skills to provide the Services to a high standard of quality, having regard to current standards in the Australian web consulting industry, and in a professional and timely manner.  We also guarantee that any Work Product will be fit for its intended purpose.

4.2    We will use our best efforts to meet the Milestones set in the Schedule. You acknowledge that we may not always be able to meet those Milestones, and that the Milestones are only estimates. For example, we may be waiting on you to provide us with some information, and there may be in a delay in you being able to obtain the information and supply it to us.

4.3    If there are any defects in any Services or Work Product that we provide to you, we will re-do those services or redeliver that Work Product. We will do this up to three months’ after the Services or Work Product is delivered. It is your responsibility to check and/or inspect any Services and Work product to make sure that the Services or Work Product are satisfactory, and to report any problems to us as soon as possible.

4.4    Apart from the guarantees given in clause 4.1, we do not give you any other express warranties, and you agree that no other implied warranties will be read into this contract, except for any warranties that are imposed by the Australian Consumer Law or any other law and that cannot be excluded by contract.

4.5    We do not provide you with any guarantee that the Services or Work Product will achieve any particular results for you, or be of any particular value to your business. We make this disclaimer because there are many variables beyond our control that could affect the value of our Services, including: what your competitors are doing; how effectively your website is designed; and changes in the technological environment.

4.6    We will be available during the times and days shown in the Availability section of the Schedule. We will not be able to respond to your inquiries outside those times and days except by special arrangement.

4.7    If you ask us to change the Scope of Work, to add anything to or remove anything from the agreed Services, we will recalculate the Fees and Expenses and provide you with a revised proposal, which may include rescheduled Milestones. You acknowledge that if the changes you request are beyond our current work capacity, or are uneconomical for us to implement, we reserve the right to decline the change, in which case either you or we may terminate the Agreement.

4.8    If we indicate that we require your approval before proceeding with any part of the Services, then you must give that request your prompt attention. If you fail to give the approval within a reasonable deadline that we have set, then we may terminate the Agreement under clause 10.4.

5. Disclaimers

5.1    Although we use our best efforts to select reliable software to use in our Services delivery, we don’t guarantee that any software that we use will function error-free.

5.2    Any SEO components of our Services depend on your website working properly. We will not be liable to you or any third party for any inability on our part to deliver any part of our Services because your website is malfunctioning or is off-line.

5.3    If our work for you depends on any information, instructions, or material that you must provide to us, and if any of those things is incomplete, incorrect, misleading or outdated, then we accept no liability for any loss, damage or claims that you may have or experience as a result, except to the extent that we have been negligent ourselves.

6. Third Parties

6.1    While we use our best efforts to select reliable third parties to work with, we are not responsible for any problems or delays in the delivery of the Services or quality of the Work Product that result from the actions or omissions of any third party who is not within our control, including: website hosting providers; server and storage operators; domain registrars; Internet services providers; the NBN; and other third party service providers such as social media platform operators; software providers; cloud-based services; and website template developers.

6.2    If for any reason our principal consultants and employees are unable to perform any aspect of your Services and/or deliver your Work Product, you agree that we may use subcontractors to provide those Services or Work Product, provided that all work is done to the agreed quality standard, the subcontractor is suitably qualified and competent to do the work, and we give the person proper instructions and check their finished Work Product.

6.3    If, in the course performing the Services, we need to access any third party services or platforms via your account with that third party, on your behalf, if you provide us with your login details you promise that the third party allows you to do that. It is your responsibility to check the terms of use for your account before doing so.

7. Intellectual Property

7.1    We will retain the Intellectual Property rights in the format of any reports that we provide to you as part of the Work Product, and in any unique techniques that we have developed to perform the Services. We do not transfer any of these rights to you under this Agreement.

7.2    You will own the information in the reports we provide you, but you hereby grant us an irrevocable, worldwide, non-exclusive and royalty-free license to keep a copy of that information for our own records. You and we also agree that we will treat this information as Confidential Information to the extent that it identifies you and your business, but may de-identify or anonymise the information, and in that format we are free to use the information for research and development purposes, and may share the anonymised information with other parties for that specific purpose.

8. Ongoing Support

Unless the Scope of Work includes ongoing support, that support is not included in the Services that we have agreed to provide. On your request, we will provide you with a new proposal for such support, which will attract additional fees.

9. Payment of Fees and Expenses

9.1    You agree to pay our Fees and Expenses, in full, in the amounts shown in the Schedule, and according to any Timetable set out there.

9.2    You also agree to reimburse us for any Expenses that we incur while providing the Services. Ordinarily, all known expenses will be shown in the Schedule. If any other expenses are required, however, you will also be liable to pay for those, provided that we must seek your prior approval before paying any Expense, wherever possible.

9.3    If GST is payable in addition to any Fees or Expenses, we will provide you with a tax invoice showing the applicable GST, and you agree that you must pay the GST in addition to the relevant Fees or Expenses.

9.4    Payment by you of any Fees, by itself, does not signify that you accept that the relevant Services and/or Work Product are satisfactory, and acceptance by us of any amount of Fees or Expenses does not signify that we accept that the correct amount of Fees and/or Expenses has been paid.

9.5    If you fail to pay any Fees or Expenses when due, we will be entitled to charge you interest of 8% per annum, calculated daily, on any overdue amounts, and we will also be entitled to claim from you our costs and expenses of recovering any such overdue monies from you.

10. Termination 

10.1  If you fail to do anything that you are required to do under this Agreement, at the time you are required to do so, then we may terminate this agreement by giving you three days’ written notice. Termination under this clause does not entitle you to a refund of any paid Fees.

10.2  You may terminate the Agreement at any time, for convenience, provided that you will not be entitled to a refund of any paid Fees. If the Schedule indicates that you must pay a Cancellation Fee, then you must pay that fee. You acknowledge that we may need to make preparations to provide the Services, such as hiring additional staff or subcontractors, or we may turn down work from other sources in order to be available to perform the Services. You acknowledge that the purpose of the Cancellation Fee is to offset these kinds of expenses and losses.

10.3  You may terminate this Agreement if we materially fail to provide the Services in conformity with the Scope of Work set out in the Schedule or any applicable standards set out in clause 4 of these T&Cs. In that event, you will not be entitled to a refund of any Fees if we have not been given the opportunity to re-do the relevant Services or redeliver the relevant Work Product, under clause 4.3, unless we agree in writing.

10.4  If our delivery of the Services is paused because we are waiting for you to provide us with any information or instructions for at least 30 days, we may terminate this Agreement, and you will not be entitled to a refund of any Fees. Before terminating the Agreement under this clause, we must give you three days’ notice in writing. We may postpone the termination if you contact us and we agree to give you a further opportunity to provide the missing information or instructions.

10.5  You agree that your inability to supply us with the information or instructions that we require to perform the Services, or your failure or inability to do anything else that you are required to do under these T&Cs, does not mean we have failed to meet our obligations under this Agreement..

10.6  We can terminate this Agreement on three days’ notice to you if you engage in fraudulent conduct in your relationship with us. Termination under this clause does not entitle you to a refund of any paid Fees.

10.7  In addition to any other basis for termination provided in these T&Cs, we and you may agree to terminate the Agreement on such terms as we and you agree, including the refund of any part of the Fees already paid.

10.8  When this Agreement terminates or expires, we will return to you any Confidential Information of yours that we hold, unless these T&Cs otherwise provide that we may keep a copy or version of that information.

11. Your Guarantees and Promises

11.1  You guarantee to us that you have legal capacity to enter into this Agreement on your own behalf, if you are an individual, or, if you are company or other organisation, that the person who signs the Schedule on behalf of that company or organisation has legal authority to do so.

11.2  You promise that you will provide us with all information and instructions that we reasonably need to perform our Services properly, when we request it and in the format we request.

11.3  You promise to review our delivered Services and Work Product and provide prompt feedback and approvals, so that we may move on to any further Milestones, and/or re-do the relevant Services or redeliver the relevant Work Product if required to do so under these T&Cs.

12. Miscellaneous

12.1  Severability. If any part of this Agreement is found to be unlawful, void, or unenforceable, that part will be treated by you and us as removed from this Agreement without affecting the remainder of the Agreement, to the greatest extent possible.

12.2  Governing Law and Jurisdiction. You and we agree that this Agreement will be governed by the laws of the State of Western Australia, and that you and we will be subject to the non-exclusive jurisdiction of the courts of that State in all matters arising under this Agreement.

12.3  Disputes. If any dispute arises between you and us regarding any aspect of this Agreement, including our services or work product, we and you agree to follow the following procedure before litigating the dispute (except for urgent applications for injunctions):

(a) the Party raising the dispute will notify the other Party about the dispute;

(b) we and you will meet to negotiate the dispute, in good faith, with a view to resolving it, within 5 days of the notification;

(c) if the negotiation fails to resolve the dispute within a further 5 days, either person may refer the dispute to a mediator, and both you and we will participate in mediation with the assistance of the mediator, in good faith with a view to resolving the dispute;

(d) we and you will share the cost of the mediator’s fees equally, otherwise each person will bear its costs of participating in the mediation; and

(e) if we and you are unable to agree on who the mediator will be, either of us can ask the RESOLUTION INSTITUTE to appoint one (called “an adjudicator”): https://resolution.institute

12.4  Entire Agreement. The legally binding parts of this proposal are the entire Agreement between you and us. Other and separate negotiations, conversations and emails are not included.

12.5  Compliance with Laws. You and we must comply with all laws that apply to you or us. In particular, you promise that the website will not be used for any illegal purpose.

12.6  Notices. If you need to give us a notice, or we need to give you a notice, for the purposes of this Agreement, the sender can give the notice to the receiver by personal delivery, post, or email, delivered or sent to the physical, postal or email addresses shown in the Schedule. If a notice is delivered personally, it will be regarded as delivered on the day of delivery. If a notice is sent by post, it will be regarded as delivered on the fifth day after it is posted, unless the sender and receiver are in different countries, in which case on the 10^th day. And if a notice is sent by email, it will be regarded as delivered on the following day after it is sent, provided that the sender does not receive a notification that the email could not be delivered successfully.

12.7  Variation. You and we can vary this Agreement, in writing. We may vary the standard text of the proposal, including these T&Cs, at any time, but that variation will not apply to our current Agreement with you, unless the variation is required to comply with the change in the law and we notify you of the change. The variation, however, will apply to any further, new contracts that you make with us.

12.8  Insurance. If any of our staff visit you as part of our work for you, you promise that they will be adequately covered by public liability insurance. We may obtain and hold professional indemnity insurance that covers the performance of the Services, but are not obliged to do so.

12.9  Intervening Events. We will not be responsible for your losses flowing from interruptions or delays caused by third parties, or events beyond our control, including: fires, floods, strikes and other industrial unrest, wars, disease outbreaks, extreme weather, interruptions to services (such as electricity or the NBN), or the failures and errors of third party provided software or platforms. If our work is interrupted by such an event, we will resume at the earliest time that it is feasible for us to do so. You may cancel this Agreement because of such an interruption or delay, but will not be entitled to any refund of fees if you do so.

12.10  Confidentiality and Privacy. If you clearly indicate to us that any information you give us should be kept confidential by us, we will use our best efforts to keep that information confidential. You agree that any information that is already publicly available, or that we have obtained from a third party without breaching any confidentiality restrictions, is not included in our confidentiality obligation. We will use, store and disclose any personal information that we obtain in the course of performing our work only in accordance with the Privacy Act 1988. If the personal information belongs to a person located in the European Economic Area, we will comply with the GDPR, but it is your responsibility to alert us to the location of the person. Please refer to our < Privacy Policy > to learn more about this subject.

12.11  Continuing Obligations. The following provisions of this Agreement will survive the termination or expiry of the Agreement, namely: all disclosure obligations; all warranties, releases, indemnities and disclaimers; all provisions relating to Intellectual Property (IP); all payment obligations; all confidentiality and privacy obligations; any provisions identified as having continuing force; and any provisions that the common law gives continuing force.

12.12  Special Conditions. If the Schedule adds any Special Conditions to the Agreement, then those conditions will apply in addition to these T&Cs. If there is any inconsistency between the T&Cs and a Special Condition, then these T&Cs will prevail, unless the Special Condition expressly states that it is intended to override a specified part or parts of these T&Cs.

13. Definitions and Interpretation

13.1    Definitions. In these T&Cs, unless the context requires otherwise, the following terms will have the meanings shown below:

“Agreement” means this Services Agreement, including both the Schedule and these T&Cs.

“Cancellation Fee” means the cancellation fee (if one applies) specified in the Schedule.

“Client” or “you” means the person or entity identified in the Schedule as the client, and “your” and “yours” have corresponding meanings.

“Expenses” includes all expenses that we incur in the course of providing the Services, or that we are otherwise entitled to recover under these T&Cs.

“Fees” means the fees that the Client will pay us as set out in the Schedule.

“GST” means the goods and services tax of the Australian Government.

“Milestones” means the milestones for the delivery of the Services and any Work Product set out in the Schedule.

“Proposal” means our proposal for the delivery of the Services, set out in the enclosed document that will become the Schedule, as provided by clause 2.1, after it is countersigned by the Client.

“Schedule” means the schedule to this Agreement, originally presented to the Client as the Proposal.

“Scope of Work” means the scope of work set out in the Schedule.

“SEO” means search engine optimisation.

“Services” includes all services that we provide to the Client under this Agreement, and includes all Work Product.

“Special Conditions”, if any apply, means the special conditions specified in the Schedule.

“Terms and Conditions” or “T&Cs” means these terms and conditions.

“Timetable” (if one applies) means the timetable for the payment of Fees and/or Expenses set out in the Schedule.

“we” means EURISKO PTY LTD (ACN 109 388 267).

“Work Product” includes all tangible products that we provide as part of the Services, including any written recommendations or reports.

13.2    Interpretation. The following rules and principles will apply to the interpretation of this Agreement (including the Schedule):

(a) words in the singular include the plural and vice versa;

(b) any gender includes the other genders;

(c) if a word or phrase is defined then its other grammatical forms have corresponding meanings;

(d) “includes” means includes without limitation;

(e) no rule of construction will apply to a clause to the disadvantage of a Partner merely because that Partner put forward the clause or would otherwise benefit from it;

(f) a reference to:

• a person includes a partnership, joint venture, unincorporated association or corporation;
• a Party includes the Party’s legal personal representatives, legal successors, assigns, and substitutes by novation and, for the purposes of determining its liability and considering its obligations, includes its principals, employees, agents and contractors;
• any legislation includes subordinate legislation under it and includes that legislation and subordinate legislation as modified or replaced;
• an obligation includes a warranty or representation, and a reference to a failure to comply with an obligation includes a breach of warranty or representation;
• “$”, “dollars” or “AUD” is a reference to the lawful currency of the Commonwealth of Australia;

(g)  if the date on or by which any act must be done under this Agreement is not a Business Day, the act must be done on or by the next Business Day. For the purposes of this paragraph “Business Day” means any day except Saturday, Sunday or any public holiday that applies in the place where the relevant action is to be done, or the relevant notice is to be served;

(h)  headings are for convenience and do not affect the interpretation of this Agreement;

(i)   where there is any inconsistency between the clauses and another document referred to in the Agreement, the terms of the Agreement must be followed wherever possible;

(j)   if a Party to this Agreement comprises multiple persons or entities, for example a partnership, then each of those persons or entities is jointly and severally liable to perform the obligations of the relevant Party, and is jointly and severally liable for the liabilities of that Party arising from this Agreement, except to any extent explicitly provided by this Agreement;

(k)   if a Party to this Agreement is a trustee, it is presumed to enter into this Agreement in that capacity, and warrants that the assets of the relevant trust are available to meet any liabilities of the Party under this Agreement; and

(l)   the expression “in writing” includes communications via email, provided that the requirements of clause 12.6 are satisfied when sending the email.