Standard Engagement Terms & Conditions
1. These standard terms and conditions of engagement are to be read in conjunction with any verbal agreements, our invoice, website, standard engagement letter or scope of engagement. They apply to all services that we perform for you that are verbally agreed and/or described in that invoice, website, standard engagement letter or scope of engagement. Together, the invoice, website, standard engagement letter or scope of engagement and the standard terms and conditions of engagement form this agreement of engagement. If the two are inconsistent, the terms of the invoice or website together with these standard terms and conditions of engagement will prevail over any engagement scope or letter. For clarity;
a. this engagement agreement together with our invoice or website constitutes the entire agreement between the parties with respect to our work under this agreement and supersedes all prior agreements, proposals, oral and written representations and/or negotiations.
b. the invoice will constitute the instrument that references the website, original standard engagement letter or scope of engagement and any variations or deviations from the original standard engagement letter or scope of engagement, material or otherwise, as appropriate.
2. OUR OBLIGATIONS
Moksh Pty Limited and its affiliates (collectively referred to as “Moksh”, “us”, “our” and “we”) must all use reasonable commercial efforts to complete the services within the set time. We will perform the services with due care, competence and diligence; however, the quality of the services will depend on input from you.
Moksh can and does not guarantee the appropriateness of the content, processes and outcomes you will experience or achieve as a result of using any of our products, services or programs.
3. YOUR OBLIGATIONS
a. You must instruct us fully and respond to our enquiries arising in the course of performance of the services; and, in a timely fashion, give Moksh each of the following (as they are ordinarily reasonably required to perform the services):
i. information – we are entitled to rely on the accuracy of that information without independently verifying it. That is so whether the information is provided by you, your representatives, or your advisers;
ii. access – to files, records and information technology systems, to premises and to people (whether management or staff) with relevant skills and experiences;
iii. resources – you must provide (and designate to the assignment) all resources that are reasonably necessary to ensure timely approval, development and sign-off of all specifications, accounts and deliverables.
b. You agree that any commercial decisions that you make, are not within the scope of our duty of care and in making such decisions you should consider the restrictions on the scope of our work and other factors, commercial and otherwise, of which you and your other advisers are, or should be aware from other sources other than our work.
You understand that all advise, recommendations and/or suggestions offered by Moksh are solely for the purpose of aiding you in achieving your defined goals. You have the ability to give informed consent, and do hereby give such consent to Moksh to assist in achieving such goals. Additionally, our products, services and products are offered on an “as is,” “where is,” and “where available” basis, with no warranty of any kind — whether express, implied, or statutory — including, but not limited to, warranties of title or the implied warranties of merchantability or fitness for a particular purpose. This does not affect those warranties which are incapable of exclusion, restriction, or modification under the laws applicable to this agreement.
You acknowledge that neither Moksh, its affiliates, nor any of its respective partner/s, employees, subcontractors, agents, third parties, or licensors warrant that the services will be uninterrupted or error free; nor does it make any warranty as to the results that may be obtained from use of the services, or as to the timeliness, sequence, accuracy, reliability, completeness, or content of any information or service provided. You understand that Moksh does not offer any representations, warranties, or guarantees, verbally or in writing, regarding any results of any kind. You agree that your outcomes and results are dependent on various factors and in no way are exclusively dependent on any information Moksh provides as part of its obligations under this engagement. Except as specifically provided in the scope of this engagement or where the law requires a different standard, you agree that Moksh is not responsible for any loss, including financial loss, property damage, or bodily injury caused by use of our products, services or programs. To the maximum extent permissible under applicable law, Moksh will not be responsible to you or any third-party claims through you for any direct, indirect, special or consequential, economic or other damages arising in any way-out use of the products, services and/or programs.
For the purposes of completeness, Indemnity and Liability are elaborated further in a later section of this document.
c. You understand all benefits and inclusions shall expire at the end of the specified engagement dates, and will not be carried-over. All benefits and inclusions must be used within these dates.
d. You agree to pay our fees and expenses within the terms specified on our invoice or website without exception.
Moksh will not be liable for any failure or delay in performing the services if that failure or delay arises from anything beyond our control, or was not foreseen at the commencement of our engagement, including the untimely performance by you of your obligations, in which case, Moksh is entitled to review its fees.
5. FEES & EXPENSES
a. We will issue our invoices for fees, GST and any expenses relating to the services to you or as you may direct. In the event that you direct us to issue an invoice to another party, you will remain responsible for payment until our invoice is paid in full.
b. In addition to the fees, you agree to pay:
i. all reasonable expenses incurred by Moksh including (but not limited to) disbursements to third parties, travel, meals and accommodation; and
ii. any tax or charge imposed on us (now or in the future) in relation to any transactions arising in connection with, or as an outcome of, this agreement including (but not limited to) the goods and services tax (“GST”).
Note that any fees chargeable under this agreement may be varied to reflect the net financial impact of any change in law affecting the cost to Moksh of providing the services including, without limitation, a change in the rate of GST in relation to the services provided by us under this agreement.
c. Moksh is entitled to review fees quoted, if you do not proceed with the engagement within 7 days of the engagement letter, and if we are still performing the services (including any related services) more than 14 days from commencement.
6. PAYMENT OF FEES
You agree to pay fees and expenses within the terms defined in the invoice, website, standard engagement letter or scope of engagement. In the case where it is not defined in the invoice, website, standard engagement letter or scope of engagement, no later than 7 days of the billing date. We reserve the right to perform no further work for you until all outstanding accounts are paid in full.
Our preferred means of payment is by electronic funds transfer to our nominated bank account as specified in our invoice, direct debit or credit card through our website payment gateway.
Any future changes to our payments method or terms of payment will be updated on our invoice or at the point of booking when and where appropriate. Otherwise, payment shall be by cash only.
7. REFUND POLICY
Due to the nature of our products, services, programs and the time commitments allocated to the engagement, you acknowledge and understand that no refunds are offered at any time including any refunds on deposits made towards the product, service or program unless prior arrangements have been made and agreed upon.
If there is an extreme emergency or natural disaster that would directly affect your ability to meet your obligations you may send Moksh a request to defer with relevant and necessary information on your situation. You acknowledge and understand any such decision will be at the sole discretion of Moksh and vary based on your circumstances.
Consider this a mutual non-disclosure agreement. Any Confidential Information shared by any representative of Moksh is confidential, proprietary, and belongs solely and exclusively to the Party who discloses it. Both Parties agree not to disclose, reveal or make use of any Confidential Information or any transactions, during discussions, calls or otherwise in any manner other than within the boundaries of this engagement under the standard engagement letter or scope of engagement. Confidential Information includes, but is not limited to, information disclosed in connection with this engagement, and shall not include information rightfully obtained from a third party. Both Parties will keep Confidential Information in strictest confidence and shall use best efforts to safeguard the Confidential Information and to protect it against disclosure, misuse, espionage, loss and theft. Further, it is agreed that violation or a display of any likelihood of violating this section either party will be entitled to injunctive relief to prohibit any such violations and to protect against the harm of such violations.
For clarity without diminishing the above:
a. Both parties agree to take reasonable steps to maintain (within our respective organisations) the confidentiality of any proprietary or confidential information of the other party. This clause does not preclude any disclosure required by law or by a Court or other tribunal, regulations (including those made under the Corporations Act), professional duty or as is requested by regulatory authorities, or any disclosure to lawyers, bankers and financial advisers of a party.
b. Moksh exchanges information between its network both locally and overseas. The network may also use overseas facilities or contractors to process or back up our information or to provide certain services to us. Any such transfer of information remains subject to existing confidentiality obligations.
c. Subject to our duty of confidentiality, you agree we may act for your competitors or for other clients, whose interests are or may be opposed to yours.
a. Moksh is committed to complying with the Privacy Act 1988 (Cth) and the Australian Privacy Principles when collecting, holding, using or disclosing personal information concerning your shareholders, members, customers, employees and other individuals with whom you have dealings (“stakeholders”). This extends to any updates to the Privacy Act 1988 (Cth) and the Australian Privacy Principles.
b. As personal information concerning your stakeholders will be collected from you rather than from the relevant individuals, we require you to ensure that those individuals are fully informed of the matters contained in this clause 8, including that Moksh collects, or has collected, the stakeholders’ information and the circumstances of that collection. You agree to provide the stakeholders with a copy of any privacy collection notice which we provide to you for that purpose.
c. If Moksh becomes aware that your stakeholders have not been made aware of the collection, holding, use or disclosure of their personal information by Moksh as part of this engagement, you agree that Moksh can, if necessary, act to inform them of those matters.
d. Moksh collects personal information concerning stakeholders to allow it to provide professional corporate, management and strategic advisory services to you. Moksh may disclose stakeholders’ personal and sensitive information to the third parties listed in clause 8(a), above, in the usual course of providing you with our services.
e. As part of its network, Moksh exchanges information between its network located locally or overseas from time to time and where appropriate.
f. The network may also use local or overseas facilities or contractors to process or back up our information or to provide certain services to us. As a result, the network may transfer personal information concerning your stakeholders to local or overseas facilities or contractors for these purposes. Any such transfer of information does not change any of our commitments to safeguard the privacy of that information.
10. INTELLECTUAL PROPERTY RIGHTS
Moksh will not acquire any ownership rights over any information provided to us by you or your representatives or advisers although you consent to us inserting your logos and other similar intellectual property on our deliverables and marketing material/s where appropriate unless you notify us to the contrary. When you have paid all amounts owing to Moksh in relation to the services (and related services), Moksh assigns to you all copyright (and other intellectual property rights) to all reports, written advice and other deliverables (except software) we have provided under the engagement scope. However, you grant to Moksh a non-exclusive, irrevocable, royalty free license to use, copy, modify and exploit those deliverables so long as doing so would not disclose any of your confidential information.
a. as confidential information the processes, ideas, concepts and techniques developed in the course of providing the services; and
b. all copyright and other intellectual property rights in:
i. data, designs, models, methodologies, analysis, frameworks, leading practices, specifications and other elements of the deliverables which were owned or developed by Moksh before, or independently from, the services; and
ii. all tools (and any enhancement, improvement or other derivative of those tools) including but not limited to software and working papers (whether or not these are supplied to you) used by Moksh in performing the services. All working papers prepared by Moksh in connection with the services will remain the property of Moksh;
These rights are non-negotiable and unconditional; Moksh does not grant permission nor license to share, copy, modify, use or sell, commercially or otherwise, any of its copyright and other intellectual property rights and assets under any circumstances without prior written consent and agreement.
For clarity, without diminishing the above:
All of Moksh’s intellectual property including the original copyrighted program materials that have been provided to you are for your individual use only and under a single-user license only. Arrangements can be made for a separate licensing agreement to cover other uses should you wish to. In this context, all intellectual property, shall remain the sole property of the Company. No license to sell or distribute Moksh’s materials is granted or implied.
11. INDEMNITY FOR LIABILITY TO THIRD PARTIES
Any products, services and/or programs rendered to or received from third parties for the purposes of this engagement will be at your direction only and hence, you agree to indemnify Moksh against all liabilities, claims, costs and expenses collectively referred to as “Loss” (including any GST payable by Moksh on amounts paid by you under this indemnity) incurred by Moksh in respect of any claim by a third party which is related to, arises out of, or is in any way associated with the services of this engagement including any breach of this agreement or any negligent, wrongful or wilful act or omission.
12. EXCLUSIONS AND LIMITATIONS OF LIABILITY
a. If the Competition and Consumer Act 2010, Corporations Act 2001 (Cth) or any other legislative provision prohibits or otherwise precludes the restriction, modification or exclusion of any statutory condition, warranty, guarantee, right, remedy or other benefit, then this clause 10 does not restrict, modify or exclude it. Unless prohibited by law, no term condition or warranty is implied except as expressly provided in this agreement. This extends to any updates to Competition and Consumer Act 2010, Corporations Act 2001 (Cth).
b. If a term is implied into this agreement by law, which cannot be excluded, you agree that Moksh may, in its absolute discretion and to the extent it is allowed by law, choose to re-supply, refund or terminate the services without any recourse.
c. Our liability to you arising in connection with this engagement (if any) is limited to that proportion of the loss or damage (excluding interest and costs) suffered by you, which is agreed between us or ascribed to us by a court or tribunal of competent jurisdiction allocating proportionate responsibility to us having regard to the extent of our responsibility for the loss or damage and the contribution to the loss or damage in question by you and any other person. Moksh is not liable:
i. to the extent that you, any other person or Moksh during the course of this engagement is / are responsible and / or liable for an act or omission that contributed to your loss including but not limited to:
1. losses due to the provision of false, misleading, incorrect or incomplete information or documentation by you, Moksh’s reliance on instructions provided by you, or due to any acts or omissions of any person;
2. accidental, incidental, indirect, special, punitive or consequential damages or for loss of profits or savings, even if Moksh has been advised of, knew or should have known of the possibility of such damage or loss;
3. liability for any statements, representations, guarantees, conditions or warranties (together representations) arising from communications (oral or written) which are not expressly contained in this Agreement. All representations to exercise reasonable care or render Moksh’s services with due care and skill which may otherwise be implied by statute, common law or custom are expressly excluded.
ii. for any indirect or consequential costs, loss or damage or loss of profits;
iii. for any defect or deficiency in any system or service that is not developed or provided by Moksh under this agreement. That includes (without limitation) your production and legacy systems and systems that receive data from systems produced by Moksh.
d. Any aggregate liability of Moksh, whether to you or any third party, of whatever nature, whether in contract, tort or otherwise, for any losses (including interest) whatsoever and howsoever caused arising from or in any way connected with this engagement shall not exceed 50% of the Fees invoiced and paid under this Engagement. You agree to release Moksh from all claims arising in connection with the services to the extent that Moksh’s liability in respect of such claims would exceed this amount.
e. This clause has no application to any liability arising directly as a result and to the extent of fraud committed by Moksh.
…THE FOLLOWING ADDITIONAL TERMS FORM PART OF CLAUSE 10, 11 AND 12 ABOVE
A. Moksh accepts no liability to anyone other than to you. The benefit of Moksh’s services may not be assigned, held on trust or otherwise transferred by you.
B. You agree that all claims against Moksh, whether in contract, tort, negligence, equity or otherwise, must be formally commenced within 60 days after the termination or expiry of the services or the agreement, whichever is earlier.
C. Where you the client comprise two or more parties, the limitation of liability contained above must be allocated among these parties. Such allocation is a matter to be resolved by those parties.
D. Subject to the limitations and exclusions of liability specified in this agreement Moksh’s liability shall be limited to only that part of any loss or damage that is proportionate to the loss or damage it has directly caused. In determining responsibility for loss or damage caused, account shall be taken of any loss or damage that is reasonably attributable to any third party. Nothing in these terms and conditions affects the rights, obligations or remedies of the parties under the any proportionate liability legislation applicable.
E. You agree to indemnify Moksh:
i. against any and all losses, claims, costs, expenses, actions, demands, damages, liabilities or any other proceedings, incurred or suffered by Moksh, including in respect of any claim by a third party (whether in contract, tort, or otherwise), arising from any breach by you of its obligations under this Agreement or by reason of any action Moksh takes in good faith;
ii. against any and all losses, claims, costs, expenses, actions, demands, damages, liabilities or any other proceedings, incurred or suffered by Moksh in respect of any claim by a third party (whether in contract, tort, or otherwise) from your use of the Moksh’s services; and
iii. from any liabilities Moksh may have to you or any third party as a result of reliance by Moksh on any information provided by you (or any of your representatives), which is false, misleading, incorrect or incomplete or as a result of the failure to provide information which was material information held in your possession or control.
F. The indemnities in this engagement will include all costs incurred by Moksh in regard to such liability or claim, including legal costs, the time Moksh’s personnel and the costs of any expert engaged by Moksh to assist in dealing with the claim or liability in any way.
13. USE OF OUR REPORTS
a. If you wish to provide a third party with copies of Moksh’s reports, letters, information, advice or other deliverables, then you must obtain our prior written consent and we reserve the right to:
i. set the terms on which those copies are given or used; or
ii. require the third party to enter into a direct relationship with us.
b. We disclaim all liability to any third party for all costs, loss, damage and liability that the third party may suffer or incur arising from or relating to or in any way connected with the provision of the deliverables to the third party.
c. If you request to receive electronically any report or correspondence containing opinions or advice, Moksh will not be responsible for any unauthorised copying, interception, interference or delivery failure of the transmission. Moksh also does not warrant that the electronic transmission is virus free or will not harm your computer systems.
d. Advice may be given in draft form, orally or in written form where final written reports shall take precedence over any oral advice, or advice conveyed by electronic transmission, and interim reports where appropriate. Moksh is not responsible for updating any opinions, advice or reports subsequent to the issue of a final version.
14. NON-SOLICITATION OF PERSONNEL
During the term of this agreement, and for twelve (12) months after it ends, you agree not to knowingly or otherwise solicit for employment, or to independently contract the services of, any partner/s, employees, subcontractors, agents, third parties, or licensors of Moksh who is involved with performing this engagement without prior consent without exception. Any breach will be subject to the agreed weekly rates of this engagement payable in full to Moksh for any partner, staff member or subcontractor independently hired or engaged.
Moksh is committed to providing you with a positive experience. You agree that Moksh may, at its sole discretion, terminate this agreement, and limit, suspend, or terminate your access without refund or forgiveness of monthly payments if you become disruptive, difficult to work with or upon violation of the terms including any outstanding payments under this engagement or as determined by Moksh. You will still be liable to pay the total contract amount.
16. GOVERNING LAW & JURISDICTION
All aspects of the services and this agreement are governed by, and construed in accordance with, the laws of the state or territory of Moksh’s office shown on the letterhead of the standard engagement letter or scope of engagement and / or invoice. Both you and Moksh irrevocably submit to the exclusive jurisdiction of the Courts of that state or territory.
17. DISPUTE RESOLUTION
Your engagement partner will always be pleased to hear any suggestions as to how our services can be improved. We will investigate any complaint promptly and do what we can to resolve the difficulties. If the problem cannot be resolved you agree to submit to mediation before having recourse to any other dispute resolution process.
If there is a dispute relating to the services or this agreement, the parties must submit to mediation before recourse to any other dispute resolution process. An independent mediator shall be nominated in the State or Territory of the Moksh’s office shown on the letterhead of the standard engagement letter or scope of engagement and / or invoice. Written notice of the dispute shall be given by the party giving notice of the dispute for their dispute to be submitted to mediation. The parties will use their best endeavours to settle the dispute promptly.
The mediation will be conducted in accordance with the terms of the mediation as prescribed by the mediator. In the event that the parties to the dispute do not agree to the terms of the mediation set out by the mediator, the mediation will be conducted in accordance with the guidelines of the Australian Commercial Disputes Centre to the extent that they do not conflict with the provisions of this clause. If the dispute is not resolved within 60 days after notice of the dispute, the reference to mediation will come to an end unless the parties agree to extend the time within which their mediation may be conducted.
a. VARIATION & SURVIVAL – This agreement may be varied by written agreement of the parties. Provisions of this agreement that are capable of having effect will survive its termination.
b. RELATIONSHIP – we will provide the services as an independent contractor. Nothing shall be construed to create a partnership, joint venture or other relationship. No party has the right, power or authority to oblige or bind the other in any manner.
c. ASSIGNMENT – this agreement may not be assigned without the prior written consent of each party; which consent may not be unreasonably withheld.
If any provision of this agreement is determined by a duly appointed person, Court or Tribunal to be illegal, unenforceable or otherwise invalid, then despite such illegality, unenforceability or invalidity:
a. this agreement shall remain in full force and effect to the extent permissible by law; and
b. the provision that is illegal, unenforceable or invalid shall be deemed to be deleted and replaced by a valid provision which in its effect is as close to the invalid provision that the replaced provision can be and will be taken to have been the provision by which the parties intended to be contractually bound from the date of commencement of our engagement.
20. FILING AND DESTRUCTION OF DOCUMENTS
It is our practice to scan all documents, retain in electronic form and then destroy original documents, unless the law requires us to retain them. Documents retained in electronic form are destroyed after seven years, unless the law requires us to retain them. If you leave documents or material with us, by signing these terms and conditions you consent to destruction of any and all original and electronic documents left in our possession. You waive any right to claim against Moksh for any loss or damage suffered by you or any related party, arising from destruction of documents. If you require any original documents to be returned to you, you should request return when providing those documents to us.