Terms of Business.
These terms of business apply to all goods and services we provide. Our letter of engagement and these terms of business form our entire agreement between us and our clients and replace any earlier agreements, representations or discussions which they conflict with. If anything in these terms of business is inconsistent with the engagement letter, the engagement letter prevails.
1 Our services
1.1 Scope – We will perform the services described in the engagement letter with reasonable skill and care.
1.2 Changes – Either party may request a change to the services, or anything else in this agreement. A change will not be effective unless we have both agreed to it in writing.
1.3 Services for your benefit – Our services are for your use only, and for the specific purpose set out in the engagement letter. Except as stated in our engagement letter, or with our prior written consent, you may not:
1.3.1 show or provide a deliverable to any third party or include or refer to a deliverable or our name or logo in a public document
1.3.2 make any public statement about us or the services.
1.4 No liability to third parties - We accept no liability or responsibility to any third party in connection with our services. You agree to reimburse us for any liability (including reasonable legal costs) we incur in connection with any claim by a third party arising from any breach of this agreement.
2 Your responsibilities
2.1 Generally, you agree to:
2.1.1 provide us promptly with all information, instructions and access to third parties we require to perform our services, including letting us know if you want us to use information we hold from other engagements we have performed for you,
2.1.2 ensure we are permitted to use any third-party information or intellectual property rights you require us to use to perform the services,
2.1.3 provide adequate and safe facilities for us when we work at your premises.
2.2 Information - You are responsible for the completeness and accuracy of information supplied to us. We may rely on this information to perform the services and will not verify it in any way, except to the extent we have expressly agreed to do so as part of the services.
2.3 Interdependence - Our performance depends on you also performing your obligations under this agreement. You agree we are not liable for any default to the extent it arises because you do not fulfil your obligations or because information supplied is, or becomes, inaccurate or incomplete, except to the extent we have expressly agreed to verify its accuracy and completeness as part of the services.
3 Fees, expenses and costs
3.1 Payment for goods and services – You agree to pay us fees for our services on the basis set out in the engagement letter. You also agree to pay for the provision of goods (such as program licence fees) at the quoted value. All dollar amounts quoted are ex GST and in Australian Dollars. You agree to pay us in Australian Dollars, with no expense to Organisation Dynamics.
3.2 Responsibility for payment - Where more than one entity is identified in our engagement letter, you agree that each entity is jointly and severally responsible for all amounts payable to us regardless of any non-payment by another. You agree not to dispute the value of our services if there is any disagreement about how payments are allocated between you, and the like.
3.3 Overdue payments - Where your payments are overdue 14 days past the invoice due date we retain the right to suspend and/or cease services. In this event, we also reserve to right to charge daily compound interest on the total amount payable at a rate of 10%, with interest commencing from the due date. We are not responsible for any loss, damage or expenses caused due to our services being stopped.
3.4 Expenses – You agree to reimburse any reasonable expenses we incur in connection with the services at cost. This includes expenses including but not limited to travel, accommodation, parking, meals, printing, photocopying, diagnostics and equipment. In instances where we do bulk printing (e.g. handouts, manuals, etc) in house, you agree to pay a rate of 75c per A4 page, and $1.50 per A3 page. In the event where expenses to be incurred are likely to exceed $25,000 in a single month (such as high volume diagnostic or licence fees), we may require payment or part-payment upfront.
3.5 Travel expenses – Where services are to be delivered outside the Brisbane City Council region, you agree to pay all reasonable direct expenses incurred such as meals, taxis, accommodation and flights. All applicable travel time will also be paid at half the applicable hourly rate. Where our staff are required to drive outside the Brisbane Metropolitan region using a private vehicle mileage will be charged at a rate of 95c per km.
3.6 Workshop administration fee – You agree to pay a workshop administration fee of $95 to contribute to our costs such as workshop equipment, stationery, workshop materials, online platform management and administrative support. The workshop administration fee applies to all group engagements including online sessions, on any given day.
3.7 Support facilitator – You agree that all workshops that include any of the following scenarios require a support facilitator; a workshop with 15 or more participants, a workshop with any participants attending via video-conference or similar, or where behavioural analysis is provided alongside facilitation services. You agree to pay an equivalent of $225 per hour or $1,800 per day for each support facilitator. Support facilitators are trained professionals and cannot be replaced with another person from your organisation, except where agreed otherwise in advance.
3.8 Premises – You agree to pay for all venue, catering and equipment expenses related to the scope of works. You will arrange the booking and payment direct with the venue, catering and/or equipment suppliers. Where feasible, we will support with any equipment that we can offer to help lessen the cost. Should you wish to utilise our office / workshop facilities at the Limestore, 33 Longland Street, Newstead as part of your services, these are available for hire on a first in, first served - basis. A venue hire rate of $950 per half day will be applied to your invoice, and catering will be invoiced back direct as an expense.
3.9 GST and other tax – Our fees, expenses and charges exclude GST or any other tax we must pay (unless stated otherwise). If a supply to you under this agreement is a taxable supply under A New Tax System (Goods and Services Tax) Act 1999, or if we must pay any other tax relating to provision of the services in Australia or overseas, you agree to pay us an amount equal to the GST or any other tax that we are required to pay.
3.10 Subscription services - Where you sign up to a subscription-based service you agree to continue the service for a minimum term, as per the engagement letter. You may opt to pay the full subscription upfront, or on a pay-as-you-go basis, however the subscription cannot be cancelled or refunded for incomplete use of the subscription term. Should you request (verbally or written) any additional services and/or support beyond the subscription scope this would incur our standard hourly rate, as per your engagement letter. Subscription fees are all-inclusive (excluding GST), and cover all technology and software licencing required to access the services.
3.11 Invoices and payment – We invoice ongoing services on a monthly basis, unless we have agreed otherwise in our engagement letter. You agree to pay the full amount of all of our invoices within 14 days of the invoice date. In the instance of one off engagements and/or where the quoted value of the engagement is less than $10,000 (excluding GST) we require payment of services upfront, otherwise we may refuse delivery of services.
3.12 Cancellation fees – In the event that you cancel or reschedule our services a 50 percent cancellation fee applies in the following circumstances; for engagements of two hours or less, the cancellation fee will apply to changes requested with less than 3 business days’ notice, or, for engagements longer than two hours, the cancellation fee will apply for changes requested with less than 5 business days’ notice. Any engagements cancelled within 24 hours of the start time will be charged at the full rate.
3.13 Fee scales – You acknowledge that we review our fees annually, effective from the commencement of each financial year (1st July). We will provide you notice of any fee changes. Where the costs of goods changes unexpectedly, or outside of our control, (e.g. an increase by our suppliers and vendors) you agree to pay any increased costs from the time that the change occurs.
4 Ethics and Integrity
Organisation Dynamics recognises the great trust placed in our organisation by our clients through participation in coaching, workshops, surveys and assessments (and other like services). Our team commits to operating with the highest integrity and are guided in our behaviour by the Australian Psychological Society Code of Ethics, the International Association of Facilitators Statement of Values and Code of Ethics, the ICF Code of Ethics and the Institute of Management Consultants Code of Ethics.
Our team may provide guidance, direction and advice which align to the above standards, which our team are professionally bound to uphold. We will advise you should we need to step back or out of work you are requesting from us for these reasons. From time to time we may consult you where ethical dilemmas arise and need to be navigated carefully together to ensure we deliver on our duty of care.
5 Confidentiality and privacy
5.1 Organisation Dynamics is guided by the Australian Privacy Principles - meaning we will not use or disclose personal information for a purpose other than the primary purpose of collection. When it comes to the collection of information (such as conducting surveys and assessments), the following provisions apply:
5.1.1 Personal information collected by us through survey forms is primarily demographic data, but may include other identifiable information. Personal information is collected only with the consent of the individual, who gives consent by completing a survey and returning it to Organisation Dynamics
5.1.2 No information, which may allow the identification of an individual, is provided to the client organisation without the consent of the individual.
5.1.3 We will only report consolidated quantitative data together with the name of the reporting unit to which the data is allocated, where an appropriate number of responses have been received to ensure the de-identification of responses
5.1.4 Information gained from qualitative free-text questions is provided verbatim to the client organisation. By completing a qualitative free-text question, the individual gives consent for that piece of text data to be included in reports to the client organisation.
5.1.5 Personal information is not otherwise disclosed except, if an individual is at risk of significant harm, or, as required by law
5.1.6 We will not under any circumstances provide the client organisation with raw survey data.
5.1.7 Access to survey data is restricted to authorised Organisation Dynamics employees and representatives. All personnel are bound by the terms of a Confidentiality Agreement for the duration of their employment and after the time their employment ceases.
5.2 Confidential information – The parties agree not to disclose each other’s confidential information, except for disclosures required by law, or where otherwise approved in writing.
5.3 Referring to you and the services – We may wish to refer to you and the nature of the services we have performed for you when marketing our services. You agree that we may do so, provided we do not disclose your confidential information.
5.4 Privacy – When it comes to other responsibilities and obligations under the Privacy Act 1988 (Cth) we agree to co-operate with each other in addressing our respective privacy obligations in connection with the services.
5.5 Data Breach - In the event of any unauthorised access or theft of Organisation Dynamics data, you will promptly notify us and perform all actions as we consider reasonably necessary to remedy or mitigate the effects of the data breach.
6 Intellectual Property
You acknowledge and agree that:
6.1. we have invested in systems, processes and other intellectual property associated with the provision of services, and
6.2 we own all such intellectual property rights, including any information, systems or other intellectual property discovered, developed or otherwise coming into existence in connection with the performance of services.
Each party must not infringe on the intellectual property rights of the other in connection with our provision of services. Each party indemnifies the other against any loss or damage incurred or suffered as a direct or indirect breach of clause 5.
7 Liability
7.1 Liability cap – You agree our liability for all claims connected directly or indirectly with the services (including claims of negligence) is limited to an amount equal to 3 times the fees payable for the services, up to a maximum of $10 million. Legislation providing for apportionment of liability also applies where relevant
7.2 Aggregate cap – Where more than one client is identified in our engagement letter, the liability cap is not increased.
7.3 Consequential loss – To the extent permitted by law, we exclude all liability for:
6.3.1 loss or corruption of data
6.3.2 loss of profit, goodwill, business opportunity or anticipated savings or benefits
6.3.3 indirect or consequential loss or damage.
7.4 No claims against employees – You agree not to bring any claim against any of our employees personally in connection with the services. This includes claims in negligence but excludes claims of fraud or dishonesty. This clause is for the benefit of our employees. You agree that each of them may rely on it as if they were a party to this agreement. Each of our employees involved in providing the services relies on the protections in this clause 6.4 and we accept the benefit of it on their behalf
8 Electronic communications and tools
8.1 Electronic communications – The parties agree to take reasonable precautions to protect their own information technology systems, including implementing reasonable procedures to guard against viruses and unauthorised interception, access, use, corruption, loss or delay of electronic communications.
8.2 Electronic tools – We may develop or use electronic tools (eg spreadsheets, surveys and assessments, online learning systems) in providing the services. We are not obliged to share these tools with you, unless they are specified as a deliverable. If they are not a specified deliverable, and we do share them with you, you agree that:
8.2.1 they remain our property,
8.2.2 we developed them solely for our use,
8.2.3 you use them at your own risk, and
8.2.4 you may not provide them to any third party.
9 Subcontractors
9.1 Subcontractors – We may use subcontractors to perform or assist us to perform the services. Despite this, we remain solely responsible for the services.
9.2 Transfer of information - We may use contractors or suppliers located in Australia and overseas to help us provide the services, and any goods, and for our internal functions. You consent to information provided to us by you or on your behalf (including personal information and your confidential information) being transferred to those contractors and suppliers.
10 Special terms applying to Bid Teams
When the scope of work which is being delivered relates to Organisation Dynamics supporting teams for the preparation of bid procurement processes, these additional terms and conditions will apply for the full duration of the services provided:
10.1 A retainer must be paid in advance in order to secure the exclusive services of our team in respect to each project and/or package that is being bid by the team.
10.2 The retainer is designed to represent the commitment that each party has to the other, and is valued at $15,000. The retainer is non-refundable, and is not transferable to other or future bids, except for circumstances addressed in 9.4.
10.3 Where a retainer has been paid, we will hold these funds and deduct amounts owing from future invoices, commensurate with the value of the goods and services provided. Once the value of the retainer funds have expired, all future goods and services will be invoiced on a standard monthly basis as incurred.
10.4 In order to protect our brand in the marketplace, we retain the right to withdraw from the coaching and support of a bid team in any event where our guidance and/or advice is not given due regard by a team or it’s representatives. Where this occurs, we will reimburse any residual retainer that may still be held in relation to this project.
10.5 Due to the nature of this work, we will normally ensure that two (2) consultants (at a minimum) are assigned to each Bid Preparation process. We will do our best to maintain the consistency of this team to ensure a continuity of service, however other team members may support from time to time due to unforeseen circumstances or late notification of dates.
10.6 Intellectual property that is provided by Organisation Dynamics to any Bid Team for the purposes of interviews, proposals, presentations or other procurement deliverables must acknowledge Organisation Dynamics as the source of the information. We do not provide you permission to reproduce or copy this information for any other purpose but for that which it was produced.
10.7 We have express permission to promote our successes in supporting Bid Teams upon the successful award of a project, in which case we may disclose the team we supported. During the duration of a procurement process, we may be required disclose that we are already supporting a Bid team to your competitors. We will not however disclose the details of the teams and/or individuals we are providing services to, at any point prior to project award.
10.8 Any agreement beyond or outside these arrangements are only binding in the event that they are agreed in writing by our team, and do not set precedence for future engagements.
11 Filing and destruction of documents
If you leave documents or material with us, in any format, we may destroy them after seven years (except to the extent we are required to retain them by law).
12 Acknowledgment of expertise and conflicts of interest
You acknowledge that we have established a positive and professional reputation for providing our services, and that we will continue to do so. The restraints and obligations in this document do not prevent or restrain us from providing our services to others where there is no current and genuine conflict of interest.
Both parties agree to disclose to the other any circumstance which you believe there is a perceived or actual conflict of interest, disingenuous behaviour or misrepresentation of the truth which may or has impacted on the other. Both parties agree to work through these instances in good faith, with integrity, openness and honesty, seeking for a win-win outcome.
13 Termination
13.1 By notice – Either party may terminate this agreement by giving the other at least 30 days written notice.
13.2 Fees payable on termination – You agree to pay us all fees and charges arising under this agreement. Where a fixed fee for services applies, and the services are not completed before termination. You also agree to pay us for the portion of services completed that we have not already invoiced.
13.3 Termination under this clause 10 does not affect rights accrued to a party up to the termination taking effect.
13.4 Clauses applying after termination – The following clauses continue to apply after termination of this agreement: 1.3, 1.4, 2.3, 3, 4, 5, 6, 7, 8.2, 9, 10, 11, 12, 13.2, 13.3, 14, 15, 16, 17, 18 and 19.
14 Relationship
We are an independent contractor. You agree that we are not in a partnership, joint venture, fiduciary, employment, agency or other relationship with you. Neither party has power to bind the other.
15 Corporations Act and SEC prohibitions
Nothing in this agreement applies to the extent that it is prohibited by the Corporations Act 2001 (Cth).
16 Force Majeure
This clause covers all events beyond the control of the parties, such as an act of God, severe weather events, law, rule, regulation or order of government, act of war, terrorism, rebellion or sabotage, riot, strike or other labour disturbance, pandemic or coronavirus restriction.
If one party is unable to carry out its’ obligations under their agreements, the obligation will be suspended before the contract is terminated for up to 30 days.
If we incur costs under these circumstances, such as hotel quarantine or additional travel costs, to fulfil our obligations, you will reimburse these costs in full upon presentation of the tax invoice(s).
Each party agrees to use reasonable endeavours to remove or overcome the effects of the relevant event without delay.
17 Assignment
Neither party may assign or deal with the other party’s rights under this agreement without the other’s prior written consent.
18 Applicable law
The law of Queensland applies to this agreement. Both parties submit to the exclusive jurisdiction of the courts of Queensland and waive any right either party may have to claim that those courts do not have jurisdiction or are an inconvenient forum.
19 Definitions
In this agreement the following words and expressions have the meanings given to them below
19.1 Our, us or we – Organisation Dynamics Pty Ltd (ACN 625 368 283, ABN 61625368283).
19.2 This agreement – these terms of business and the engagement letter (or letter of proposal) which is attached, or which has been most recently given in support of the services provided.
19.3 You or your – the client identified in our engagement letter.
19.4 Bid teams - one or multiple organisations who are collaborating for the purposes of being selected as a provider to an owner organisation via an interactive procurement process.
19.5 Engagement letter - our service proposal, fee proposal, contract, services agreement or engagement letter, which is subject to the terms and conditions contained here (and any updates that may transpire in the future).
19.6 Subscription service - services which are a fixed deliverable for a fixed fee each month, for a minimum term (such as survey interactive dashboards).
19.7 Surveys and assessment - any paper or online proprietary tool (such as the Collaboration Index, Performance Index, Workforce Performance Index, or Psychological Safety Index, or other) or tool issued via a third party provider (such as Human Synergistics, Thomas International, TMS systems, Clifton Strengths, Hogan Assessments or other) which is used to conduct survey, evaluation or diagnostic activity on an individual, team, project or organisation.
Undefined terms have their ordinary and natural meaning, as the context requires.
