1.1 In these terms and conditions, unless the subject matter or context otherwise requires, the following words and expressions shall have the following meanings:
(a) Commencement Date means the date referred to in the Purchase Order (if applicable);
(b) Confidential Information means all information relating to a party’s business or financial interests and affairs, customers, suppliers, methodologies and practices, and its data, work and work product, which is confidential by its nature or designated by that party to be confidential to it. But Confidential Information does not include information which is:
(A) in the public domain (otherwise than as the result of a breach of an obligation of confidence by the party seeking to rely on this exclusion); or
(B) known to the party seeking to rely on this exclusion as the result of disclosure from another source which had the right to disclose the information on a non-confidential basis;
(c) Consultancy Term means the period of time specified in a Purchase Order;
(d) Consultant means the person named as the Consultant in a Purchase Order;
(e) Existing IP is defined in clause 8.1;
(f) Intellectual Property Rights/IP Rights means all existing and future registered and unregistered rights conferred by statute, common law or equity in in relation to any copyright, patents, trade marks, designs, circuit layouts, trade secrets, know-how, confidential information, invention and discoveries, whether created before or after these Terms, and whether in Australia or overseas;
(g) New IP is defined in clause 8.3;
(h) Purchase Order means a purchase order in a form to be determined by us from time to time for consulting services other than Services provided via the Site which you enter into with us that sets out the nature of the Services which includes, but is not limited to, the scope of our Services, deliverables, timeframes and our fees;
(i) Services means:
(i) the online, web-based applications, platforms and/or website provided by Urth from time to time via the Site including any consultancy services provided by Urth via the Site; and
(ii) any associated offline consulting services you engage us to perform for you under these Terms, as specified in the Purchase Order(s).
(j) Site means this website consulturth.com;
(k) Terms means these terms and conditions and includes the Purchase Order (if any);
(l) User Account means your registered user account on the Site that is accessed using your personal preferences and containing personal information provided by you;
(m) We/our/us/Urth means Consult Urth Pty Ltd (ACN 639 220 349); and
(n) You/your/the client means you, our customer, as detailed more particularly in the Purchase Order.
2 YOUR AGREEMENT WITH US
2.1 By accessing and using the Site, you are deemed to have accepted our Terms, which constitute a legally binding agreement which you accept and enter into with us.
2.2 If you choose to engage Urth to provide associated consulting services other than via the Site by way of submitting a Purchase Order, or procuring our services under a written document which is the same as or similar to the format of a Purchase Order, you acknowledge and agree that such Services are performed for you under these Terms.
2.3 We reserve the right to review and change any of these Terms in our reasonable discretion and will provide reasonable notice to you of any such change via email using the contact details you have supplied, an RSS feed and/or by posting a change notice on this Site for a reasonable period of time. Any changes to the Terms take immediate effect from the date of their publication. For the avoidance of doubt, any changes to the Terms apply to all Purchase Orders or other written document you have entered into with us for associated consulting services.
2.4 If you find any of the Terms or any changes to the Terms unacceptable, you must notify us in writing immediately. By continuing to use the Site and our Services, you agree to the current Terms or to the relevant changes to the Terms, as applicable.
3.1 We may subcontract the provision of some or all of our obligations under these Terms, provided that we remain responsible for the performance of those obligations and will be liable for the acts and omissions of the relevant subcontractor in connection with these Terms as if they were our own acts or omissions.
3.2 We agree to perform the Services whether via the Site or under a Purchase Order:
(a) materially in accordance with the requirements and specifications set out in the Purchase Order, including any specified time frames or dates;
(b) to the standard reasonably expected of an appropriately qualified consultant in the relevant field; and
(c) in accordance with all applicable laws and necessary licences, permits and authorisations required to perform the Services.
3.3 You acknowledge and agree that:
(a) we cannot and do not guarantee or warrant any particular outcome of the Services;
(b) we are dependent on timely, complete, accurate and up to date information and data from you to perform the Services;
(c) you must (and must ensure that your employees, agents and contractors) comply with all reasonable directions given by us for the purposes of providing the Services and the provision of relevant information to us;
(d) where we require access to your premises in order to perform the Services, you must provide such access and warrant that all applicable health and safety laws have and continue to be complied with, with respect to the premises and access to them.
3.4 We agree to make the Consultant reasonably available to perform the Services but do not guarantee that the Consultant will solely provide the Services. We will notify you as soon as is reasonably practicable if the Consultant is or becomes unavailable (for example, due to illness or temporary leave). We may supply the Services using suitably skilled employees and contractors other than the Consultant, in our discretion and as we see fit.
3.5 The parties acknowledge that Urth is an independent contractor and that these Terms are not intended to create any relationship of employment or partnership between them. Urth acknowledges that it is solely responsible for all costs, salaries, wages, bonuses, allowances, workers’ compensation premiums (if applicable), superannuation guarantee contributions, fringe benefits, leave entitlements and any taxes in relation to the Consultant, and its other employees and personnel.
4 USER ACCOUNT
4.1 In order to access certain features and information on the Site, you must have a User Account. To register for a User Account, you must complete your registration details at the time and in the manner required on the Site.
4.2 You acknowledge and agree that, in registering for a User Account, you:
(a) are 18 years of age or over (or over the minimum legal age in your country to enter into legally binding contracts); and
(b) are capable of entering into legally binding contracts under the laws of the Commonwealth of Australia and that you meet all other eligibility requirements contained in these Terms; and
(c) must not knowingly provide fraudulent or inaccurate information; and
(d) are responsible for all activities conducted under your User Account; and
(e) are responsible for safeguarding any passwords used to access your User Account and the Site, and you agree to take all necessary steps to ensure that no other party has access to your User Account and password.
4.3 If Urth, in its sole discretion, determines that you have acted inappropriately in your use of your User Account or of the Site, Urth may remove any information that you have input into or uploaded to the Site, terminate your User Account and prohibit you from using the Site.
5.1 Clauses 5.2 to 5.5 (inclusive) apply if a Purchase Order is agreed between you and Urth for any Services.
5.2 You must pay our fees for the Services calculated in accordance with the Purchase Order (Fees).
5.3 We will notify you of any reasonable costs and expenses, which may include travel, accommodation or meals, we need to incur in performing the Services. Any such costs and expenses (including any GST component paid by us) will be borne by you.
5.4 Unless otherwise provided in the Purchase Order:
(a) following the final day of each month, we will provide you with a valid tax invoice for the Fees payable in respect of the month just ended as well as any relevant costs and expenses incurred; and
(b) you must pay each invoice issued by us within fourteen (14) days of the date of such invoice.
5.5 Terms used in this clause 5.5 which are defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) (such as “GST” and “supply”), have the same meaning as in the Act. Where GST is or becomes payable on any supply made under or in connection with these Terms, the party required to provide the consideration for the supply must pay, in addition to and at the same time as the consideration is to be provided, an amount equal to the amount of GST on the supply.
6.1 Urth maintains insurance appropriate to the nature of the work it performs, and as required under applicable legislation.
6.2 You acknowledge and agree that we do not, and cannot, guarantee any particular outcome of the Services. We will use all reasonable endeavours to discuss variable factors that may impact upon the outcome of the Services with you prior to and during the performance of the Services.
6.3 To the extent permitted by law, our liability to you in connection with these Terms is limited in the aggregate to the total Fees paid to us under these Terms. For clarity, a “claim” includes any claim, action, suit, proceeding or demand, whether or not filed or lodged with any court or tribunal. This limitation applies to any claim, whether in law or equity, and whether it arises in contract, tort (including negligence) or in any other way.
6.4 Notwithstanding any other term of these Terms and to the maximum extent permitted by law, we will not in any event be liable for any consequential or indirect loss, or any loss of profits, revenue, business, opportunity, production, goodwill, savings or anticipated savings, use or reputation, or any other similar indirect loss you may suffer.
7 WARRANTIES AND INDEMNITIES
7.1 Each party warrants and represents to the other party that:
(a) it is not subject to an insolvency event;
(b) it has the right to grant a licence to the other party during the Consultancy Term to its Intellectual Property;
(c) to the best of its knowledge, information and belief, use of its Intellectual Property by the other party in the manner contemplated by this Agreement:
(i) will not infringe the Intellectual Property of any third parties; and
(ii) is not contrary to law;
(d) it has the ability, expertise, and other resources necessary to comply with its obligations under this Agreement;
(e) it has full power and authority to enter into and to perform this Agreement;
(f) entering into and performance of this Agreement does not and will not contravene any contractual, legal or other obligations of it whatsoever;
(g) this Agreement constitutes a legal valid and binding obligation on the party making the warranty, enforceable in accordance with the terms contained herein; and
(h) it will comply with all applicable laws in connection with the exercise of its rights or performance of its obligations under this Agreement, including by obtaining any licences or approvals that it may require from any government agency for that purpose.
7.2 We warrant that we have the requisite qualifications and any authorisations required by law to provide the Services. We further warrant that we will use all due care and skill in performing the Services in a professional and workmanlike manner. We make no other warranties in connection with the Services and exclude all implied and statutory warranties to the extent permitted by law.
7.3 Each party will use all reasonable endeavours to mitigate loss and damage it suffers under or in connection with these Terms.
8.1 A party may terminate provision of the Services, these Terms and a Purchase Order in writing if the other party commits any serious or persistent breach of these Terms:
(a) in the event of a breach that is capable of remedy, where that breach is not remedied within thirty (30) days of a written request from the first party requiring it to remedy the breach; and
(b) in the event of a breach not capable of remedy, immediately.
8.2 On termination of these Terms for any reason, you must pay us the Fees (if applicable) and any relevant expenses for all Services performed up to the date the termination takes effect. We will issue a final invoice setting out the applicable Fees and expenses (calculated in accordance with these Terms).
8.3 You may terminate your account and use of the Site at any time by emailing email@example.com.
8.4 We may terminate the Services, these Terms and a Purchase Order at any time by providing notice to you in writing including via the Site or email.
9 INTELLECTUAL PROPERTY RIGHTS
9.1 All IP Rights owned or controlled by a party which are disclosed, made available or used in connection with the performance of the Services (Existing IP), remain the property of that party.
9.2 By disclosing or making available your Existing IP to us in connection with the performance of the Services, you grant us a non-exclusive, perpetual, irrevocable, royalty-free, global licence to use and reproduce your Existing IP to the extent reasonably required by Urth to provide the Services to you.
9.3 We retain ownership of all IP Rights resulting from or created in the course of the performance of the Services and these Terms, including any document, report or other material (including verbal advice and information) provided to you by Urth (New IP).
9.4 Upon full payment of our Fees for our Services provided to you under the Purchase Order, we grant you a non-exclusive, perpetual, irrevocable, royalty-free, global licence to use the New IP in the deliverables defined in the Purchase Order for your business purposes, subject to you maintaining the confidentiality of such New IP as required by clause 10.
9.5 Upon termination of these Terms for any reason, the parties shall immediately cease use of the other party’s IP Rights, subject to clause 9.4.
9.6 The provision of this clause 9 survives the termination or expiry of these Terms.
10.1 Each party agrees to:
(a) treat the Confidential Information of the other party as secret and confidential and as the property solely of that other party;
(b) not disclose the Confidential Information of the other party to any other party, except where the disclosure is:
(i) with the prior written consent of the other party;
(ii) to a legal or financial adviser who is under an obligation to maintain the confidentiality of the information, in the course of obtaining legal or financial advice; or
(iii) to the extent the party is legally required to do so, for example pursuant to a court order or where the disclosure is necessary in order to comply with a law, provided that the party has first informed the other party of the fact and extent of the intended disclosure.
(c) when requested by the other party, immediately supply the other party with a list of the persons to whom Confidential Information has been disclosed;
(d) immediately notify the other party in writing if any person has disclosed or it suspects may disclose the other party’s Confidential Information otherwise than in accordance with this clause 8; and
(e) upon the termination or expiry of these Terms, as soon as reasonably practicable:
(i) deliver to the other party all Confidential Information of the other party in its possession or control; or
(ii) upon the other party’s prior written directions destroy all Confidential Information of the other party in its possession or control.
10.2 The provisions of this clause 10 survive the termination or expiry of these Terms.
11.3 You must comply with any privacy legislation that applies to you or the business your User Account is affiliated with, including the Privacy Act 1988.
11.4 You agree that are entitled to use any data which you provide to us in an anonymised and/or amalgamated manner for our internal business purposes including for our improvement of the Services and the delivery of our Services to you.
12.1 These Terms are the sole and entire agreement between the parties relating to its subject matter.
12.2 These Terms are governed by the law of the State of Victoria, Australia, and the parties submit to the exclusive jurisdiction of the courts and tribunals of that State.
12.3 If any provision of these Terms are held to be unlawful, invalid, unenforceable or in conflict with any rule of law, statute, ordinance or regulation it is to be severed so that the validity and enforceability of the remaining provisions are not affected.
12.4 No waiver of any breach of any provision of these Terms will constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provisions hereof, and no waiver will be effective unless made in writing and signed by an authorised representative of the waiving party.
12.5 In the event of any inconsistency between clauses 1 to 12 (inclusive) of these Terms and anything contained in the Purchase Order, the terms of clauses 1 to 10.3 will prevail to the extent of such inconsistency.
Updated: 01 January 2021