1. The Agreement
These general Terms of Engagement from the agreement between the Client (“you”) and Clever Cow Pty Limited (“Clever Cow”). Other terms and conditions or other relevant documents are referenced in the schedule 1, attached to this agreement and/or included as part of the quotation, if relevant.
The Client hereby engages Clever Cow to provide services to their company in accordance with this agreement and Clever Cow accepts this engagement. The service provided are outlined in Schedule 3 of the proposal or your quotation.
3. The Parties’ Representatives
Each party commits that its Staff is authorized to exercise the duties, discretions and powers vested in them under this agreement.
4. Performance Standard
4.1. Clever Cow
4.1.1. Acknowledge that the Client has entered into this agreement relying on the skill, care, expertise, experience and judgement of Clever Cow;
4.1.2. All services must be performed in a professional, competent and timely manner and with due care, skill and diligence at the level of an experienced and competent professional providing service of a similar nature to those which Clever Cow is required to provide under this agreement;
4.1.3. Warrant that no act or omission by it does or will infringe the intellectual property rights of any third party or is or will be illegal, offensive or defamatory or prejudicial to the good name and reputation of the Client;
4.1.4. May, if required, outsource to third party contractors if deemed reasonable and in the best interest of the Client;
4.2.1. Acknowledge that as the Client must disclose all relevant information which could be required by Clever Cow to fulfil the terms of this agreement;
4.2.2. Make all payments in full by due dates;
4.2.3. Respond to requests from Clever Cow in a timeframe which is deemed reasonable;
5. Fees payable to Clever Cow
5.1. By signing this agreement you agree to make payment by the terms set out in Schedule 2 or in your estimate/quotation.
5.2. Fees are outlined in Schedule 2 or in your quotation.
5.3. A non-refundable deposit of 40% is required to prior to commencement of project work. The remainder owing is agreed to be paid as set out in Schedule 2 or in your estimate/quotation.
5.4. Fee for service and other none project work will require payment in advance, based on an estimate of work to be completed.
5.5. “GST” means goods and services tax as imposed by the GST Act 1999.
5.6. Pricing is exclusive of GST unless otherwise stated.
5.7. Miscellaneous items are not included in the estimate/quotation and will be included on the final invoice.
6. Payment terms
6.1. The client must pay the agreed fees to Clever Cow by the required payment date as stated on the invoice or written request for payment. If no time is stated then payment shall be due seven (7) days following the invoice date. Invoices less than $1,000 are payable immediately, unless otherwise agreed.
6.2. If the Client fails to pay the invoiced amount by the due date, or part thereof, then an interest rate of 10% p.a. on all monies due but not paid by the client shall be charged. The interest will be calculated on a daily basis from the due date to the date of payment.
6.3. Invoices unpaid at 30 days are automatically outsourced to a collection agency.
6.4. The additional fees and charges incurred in pursuing the debt are payable by the Client, including administration fees and legal costs.
6.5. In the event that a client’s payment is dishonoured, the Client shall be liable for the payment of any dishonour and reprocessing fees.
7.1. For the purpose of this agreement Confidential Information means all information relating directly or indirectly to the Client and Clever Cow, and includes information that is by nature confidential, information that is designated by the Client or Clever Cow as confidential, and information that the Client or Clever Cow knows or ought to know is confidential. It does not include information that is or becomes public by the Client or Clever Cow, or that is required by law to be disclosed.
7.2. Information provided to Clever Cow as part of this agreement is treated as confidential. Any information acquired by us in the course of this agreement is subject to strict confidentiality requirements. Information will not be disclosed by us to other parties except as required or allowed for by law or professional standards, or with your express consent.
7.3. Information provided by Clever Cow to the Client as part of this agreement is confidential and is in no way to be passed onto or copied to any third party without the written consent of Clever Cow;
7.4. Clever Cow’s fees and charges are confidential information and are not to be passed to a third party.
8. Intellectual Property and Documents
8.1. Each party acknowledges that the ownership of and all rights in relation to intellectual property of either party or any third party that pre-exist this agreement are and remain the property of that party and there is no change to any right, title or interest in such intellectual property by virtue of this agreement;
8.2. The ownership of any intellectual property produced as a result of this agreement remains the property of Clever Cow immediately of its creation.
8.3. Intellectual property means all rights comprised in any patent, copyright, design, and trademark eligible layout or similar, including the right to apply for registration in respect of those rights, and the rights, and the right to protect trade secrets, knowhow and goodwill.
9.1. The Client liability to Clever Cow shall not be limited or otherwise affected by the terms or limits of any policy. If Clever Cow suffers loss or damage attributable either party or wholly due to the Client’s negligence or wrongful act or omission, or breach of agreement, the rights of Clever Cow to recover damages shall not be limited by any terms or limits of any policy held by the Client.
9.2. Clever Cow has professional Indemnity Insurance.
Under no circumstances are you to employ, contract to or hire in any form a contractor or employee who has performed work under Clever Cow Pty Limited for a minimum of 24 months after termination of this agreement or termination of contractor or employment arrangements.
The recommendations provided are based on the information provided, research and work experience. The decision to implement these recommendations remains with the business owner, and no guarantee of their success is provided.
12.1. On completion of the Services or on termination of the agreement, the Client shall promptly return all Clever Cow’s documents and materials and other information provided to the Client by Clever Cow.
12.2. Without prejudice to any other rights, remedies or liabilities, the agreement may be terminated by either party upon written notice if:
12.2.1. The other party becomes incapable of continuing by reason of death, bankruptcy, or insolvency (as defined by the Corporations Act); or
12.2.2. The other party is in breach of this agreement and fails to remedy the breach within 7 days of written notice requiring it to do so.
13. Dispute Resolution
Without prejudice to any right of a party to institute proceedings in a court of competent jurisdiction, any dispute between the parties shall, in good faith, first be sought to be resolved by negotiation between each party. If the dispute is not resolved within 20 days, the parties will explore alternative dispute resolution methods.
14. Conflict of Interest
The Client shall immediately upon becoming aware notify Clever Cow of any matter which may give rise to an actual or potential conflict of interest.
15. Transfer or Assignment
The Client may not transfer, assign, mortgage, charge or encumber all or any part of this agreement without the prior written approval of Clever Cow, and then only on such terms and conditions as Clever Cow in its absolute discretion agrees to. For the purpose of this clause an assignment shall be deemed to take place in any circumstances where there is a change in the effective control of the Client.
In addition to any other method of service permitted by law notices shall be deemed to be property served if sent to the recipient by prepaid mail, personal delivery, email or facsimile.
This agreement and any of its obligations may be varied only in writing and agreed by each party.
18.1. The rights and obligations under this agreement cannot be waived except by express notice specifying the waiver;
18.2. The failure, delay, relaxation, or indulgence on the part of either party in exercising any power or right conferred upon that party by this agreement does not operate as a waiver of that power or right, nor does any single exercise of any power or right preclude any other or further exercise of it or the exercise of any other right or power under this agreement;
18.3. If any provision of this agreement is invalid and not enforceable in accordance with its terms, all other provisions which are self-sustaining and capable of enforcement without regard to the invalid provisions shall be and continue to be valid and enforceable in accordance with their terms;
18.4. This agreement is governed by the laws of the State of New South Wales. The parties submit to the jurisdiction of the Courts of New South Wales.
Published 19 April 2012
If you have any questions regarding our Terms and Conditions please email us