Terms and Conditions
Terms and conditions - Website
These Terms and Conditions govern the use of all our web pages accessible from www.repositionmindset.com (the ”website”). In these Terms and Conditions, ”website” includes the layout of this website, individual elements of the website design, underlying code elements of this website; or text, sounds, graphics, animated elements or any other content of this website. By using this website, you will be taken to agree to them. If you do not agree to these Terms and Conditions, you should immediately exit this website. This website is designed to provide introductory information regarding Reposition Pty Ltd. (”Reposition”, ”we” or ”us”) and should not be relied upon for any purpose. Reposition may change these Terms and Conditions at any time and from time to time without notice. Any amendment will be effective immediately. Your use of this website after any amendment constitutes an agreement by you to comply with and be bound by the amended Terms and Conditions. Accordingly, you should read these Terms and Conditions from time to time for changes.
Terms and conditions - Services
These terms and conditions apply to the provision of services by either Reposition Pty Ltd ACN 138 179 147. These terms and conditions apply to your agreement with whichever of these entities you engage to provide Services. By placing an order for Services to be provided by Reposition, the Client agrees to be bound by the terms and conditions described below.
- DEFINITIONS
”ACL” means the Australian Consumer Law which is contained in the Competition and Consumer Act 2010 (Commonwealth)
”Agreement” means these terms and conditions
”Agreement Date” means the date that Reposition accepts the Client's request for the provision of Services by Reposition
”Claims” means any claims, losses, proceedings, damages, punitive damages, penalties, demands, fines and liabilities whether criminal, civil, in tort, in contract or otherwise
”Client” means the entity requesting Reposition to provide Services
”Commencement Date” means the Agreement Date, or such other date as is agreed between the parties
”Confidential Information” has the meaning described in clause 16 of this Agreement
”Fees” means fees paid by the Client to Reposition in accordance with this Agreement
”GST” means Goods and Services Tax imposed on a supply of goods or services in Australia, pursuant to the GST Law
”GST Law” means the same as in the A New Tax System (Goods and Services Tax) Act 1999 (Commonwealth)
”Intellectual Property” includes but is not limited to processes, business systems, business know-how, trade secrets, moral rights, goodwill, registered designs, copyrights, patents, trademarks, trade dress, industrial design, trade names or other similar rights, whether registrable or otherwise as well as rights to apply for any of these rights
”Losses” means any losses including but not limited to financial losses, expenses, damages, costs including legal fees, legal costs and other expenses of any nature whatsoever
”Party” means either the Client or Reposition
”Parties” means the Client and Reposition collectively
”Receiving Party” in relation to a piece of Confidential Information means the Party which receives the Confidential Information from the other Party (whether directly or indirectly)
”Services” means the services to be provided by Reposition to the client, the specific description of which is as described in this Agreement, or any relevant section of this Website
”Supplying Party” in relation to a piece of Confidential Information means the Party which supplies the Confidential Information to the other Party (whether directly or indirectly)
”Termination Date” means the earlier of the date that this Agreement is terminated by the Client or Reposition, or the date of expiry of this Agreement - INTERPRETATION
In this Agreement, unless the context otherwise requires, the following rules of interpretation shall apply:
(a) Words referring to one gender include every other gender.
(b) Words referring to a singular number include the plural, and words referring to a plural include the singular.
(c) Words referring to a person or persons include firms, corporations, associations, partnerships, joint ventures, authorities, government bodies, organisations and other legal entities, and vice versa.
(d) Headings and titles are included in this Agreement for convenience only and shall not affect the interpretation of this Agreement.
(e) Unless otherwise specifically provided, all monetary amounts contained in this Agreement are in Australian Dollars (AUD).
(f) Each Party must, at its own expense, take all reasonable steps and do all that is reasonably necessary to give full effect to this Agreement and the events contemplated by it.
(g) Any obligation on a Party not to do something includes an obligation not to allow that thing to be done. - SERVICES
(a) In consideration for the Client paying the Fees, and subject to the provisions of this Agreement, Reposition hereby agrees to provide the Client with services in the nature of business, management and leadership advisory and mentoring services, the particulars of which are to be agreed between the Parties prior to entry into this Agreement.
(b) The Services may also include any other tasks which the Parties may agree on.
(c) The provision of the Services will further be subject to the description of such (including any additional terms and conditions) contained in the relevant sections of this Website. To the extent of any conflict between these terms and conditions and any others contained in the description of any Services on this Website, these terms and conditions will apply. - LOCATION OF SERVICES
Unless otherwise agreed by the Parties, Reposition will perform and provide the Services at such locations as Reposition determines in its sole discretion.
- TIMING OF SERVICES
(a) Reposition will commence providing the Services on the date agreed by the Parties prior to entry into this Agreement (”the Commencement Date”).
(b) The Services will be completed on a date to be agreed between the Parties. - TERM
(a) The term of this Agreement (”the Term”) will commence on the Agreement Date and will continue until the Services have been completed, or such other time as provided in this Agreement.
(b) The Term may be extended by written agreement of the Parties. - PERFORMANCE OF SERVICES
(a) The Services may be performed by Reposition personally, or by any employees, agents or subcontractors as chosen by Reposition in Reposition's sole discretion.
(b) Reposition is responsible for any work undertaken by Reposition's subcontractors, employees or agents.
(c) Reposition is solely responsible for any payments to Reposition's employees, agents, subcontractors or affiliates in relation to the provision of the Services under this Agreement, including any payments due for salary, wages, annual leave, sick leave, long service leave, superannuation and any other amounts to which Reposition's employees, agents, subcontractors or affiliates may be entitled in relation to the provision of the Services under this Agreement.
(d) Reposition is solely responsible for ensuring compliance with any legislation which applies to Reposition's employees, agents, subcontractors or affiliates. - NATURE OF RELATIONSHIP
(a) Nothing in this Agreement constitutes an employment relationship between the Client and Reposition or between the Client and Reposition's workers (such as the employees, agents or subcontractors of Reposition). No relationship of employer and employee is created by this Agreement.
(b) Nothing in this Agreement creates a partnership, joint venture, fiduciary relationship, agency or other relationship between the Client and Reposition except for the contractual relationship which is provided in this Agreement.
(c) The Parties hereby acknowledge and confirm that it is the express intention of all Parties that Reposition is acting in relation to the Client as a contractor and not as an employee, partner, joint venture partner, agent or otherwise. - FEES
(a) In consideration for Reposition providing the Services in accordance with this Agreement, the Client agrees to pay fees to Reposition (”Fees”) by reference to the fee relevant to the particular Service as agreed between the Parties prior to entry into this Agreement.
(b) The Parties acknowledge that the Fees are exclusive of any Goods and Services Tax (”GST”) that may be charged by Reposition and therefore that Reposition will be entitled to add GST to the Fees. - MATERIALS, COSTS AND DISBURSEMENTS
Unless otherwise agreed, Reposition is entitled to charge, and the Client will be liable for, any additional costs incurred by Reposition in performing the Services, such as costs for materials or disbursements, on top of the Fees which have been set out in this Agreement, save that Reposition must first obtain the Client's consent prior to incurring any such costs for materials or disbursements.
- INVOICING
(a) Reposition must provide the Client with a tax invoice in accordance with the GST Law in relation to the Fees.
(b) Unless otherwise agreed, any invoices and Fees will be payable prior to Reposition commencing performance of the Services.
(c) If Reposition agrees that the Client may pay on account then the Client must make payment in relation to any invoice within 14 days. (d) Unless otherwise specifically stated, all Fees and other amounts payable have been calculated without regard to GST. If GST is imposed on any supply made under or in accordance with this deed, the recipient of the supply must pay to the supplier an additional amount equal to the GST payable on the supply. - LATE PAYMENT OF INVOICE
(a) If the Client does not make payment by the due date for payment as specified in the invoice, Reposition may:
a. charge interest on any amounts outstanding, at the rate of 9% per annum
b. refrain from providing any further Services, or any other work for the Client or any other services to the Client (even if that work or those services are dealt with under a separate service agreement) until the Invoice has been paid in full.
c. require the Client to pay in advance for any future Services or any part of the Services which have not been performed.
d. terminate this Agreement, or the provision of any Services, by providing written notice to the Client.
e. The rights set out in this clause are in addition to any other rights available to Reposition, whether pursuant to this Agreement or any relevant law. - CLIENT OBLIGATIONS
The Client must take, and must ensure that the Client's employees, agents and other contractors take, all reasonable steps to cooperate in good faith with Reposition during the period while Reposition is providing the Services to the Client, including by making available any information, documentation, facilities, resources or personnel as reasonably required by Reposition, in accordance with this clause.
- RETURN OF PROPERTY
Upon the termination, expiration or completion of this Agreement, each Party will promptly return to the other Party (”the Second Party”) respectively any property, documentation, records or confidential information which is the property of the Second Party, save to the extent any such information is contained in electronic format in which case the parties must send a copy of such data to the other party, but may retain a copy solely for their own back-up and data security purposes.
- CONFIDENTIAL INFORMATION
(a) Each Party (”the Receiving Party”) shall keep the confidential information of the other Party (”the Supplying Party”) confidential and secret, whether disclosed to or received by the Receiving Party. The Receiving Party shall only use the confidential information of the Supplying Party for the purpose of performing the Receiving Party's obligations under this Agreement. The Receiving Party shall inform its employees, officers, agents or subcontractors of the Receiving Party's obligations under the provisions of this clause, and must ensure that the Receiving Party's officers, employees and agents meet those obligations.
(b) For the purpose of this Agreement, ”Confidential Information” means all information relating to the Supplying Party which might fairly be considered to be of a confidential nature and includes, but is not limited to:
a. information of whatever nature, without limitation, which is obtained in any form by the Receiving Party from the Supplying Party or its advisers, or by observations during visits, or by demonstrations;
b. information of whatever nature relating to the business activities, practices and finances of the Supplying Party;
c. any evaluation material, design work, technologies, technological ideas or strategies, strategic plans and ideas, innovations, creative plans, concepts and any other plans or ideas developed by the Supplying Party or on its behalf or used by the Supplying Party, whether relating specifically to the Services or otherwise;
d. any information derived from any other information which falls within this definition of Confidential Information;
e. any copy of any Confidential Information; and
f. the fact that discussions are taking place between the Parties; but does not include information which:
g. was known or in the possession of the Receiving Party before it was provided to the Receiving Party by the Supplying Party;
h. is, or becomes, publicly available, through no fault of the Receiving Party;
i. is provided to the Receiving Party without restriction or disclosure by a third party, who did not breach any confidentiality obligations by making such a disclosure;
j. is provided to the Receiving Party by the Supplying Party and is marked ”Non Confidential”; or
k. is required by law or regulation to be disclosed, but in the event that this exception applies, it applies only to the absolute minimum necessary and provided that the Supplying Party is first consulted to establish whether and if so how far it is possible to prevent or restrict such enforced disclosure.
(c) If there is any doubt as to whether any particular information constitutes Confidential Information, written confirmation is to be obtained from the Supplying Party.
(d) This clause will survive the termination, expiration or completion of this Agreement. - INTELLECTUAL PROPERTY
(a) In connection with the provision of the Services, Reposition may generate, create, write or produce intellectual property (”Created IP”), including but not limited to plans, reports, drawings, specifications, advice, analyses, designs, methodologies, code, artwork, or any other intellectual property as required in order to provide the Services to the Client.
(b) Unless otherwise agreed between the Parties, any intellectual property rights in any Created IP generated by Reposition in connection with the provision of the Services to the Client shall belong to Reposition.
(c) Unless otherwise agreed between the Parties, Reposition shall provide to the Client a non-transferable, Australia-wide, royalty-free, irrevocable, non-exclusive licence (without a right of sub-licence) to use any Created IP generated by Reposition in connection with the provision of the Services to the Client, solely for the purposes of the Client enjoying the benefit of the Services.
(d) Unless otherwise agreed between the Parties, any intellectual property rights in any intellectual property provided by the Client to Reposition in order to assist in the provision of the Services, shall belong to the Client, however the Client will provide to Reposition a transferable, sublicensable, Australia-wide, royalty-free, irrevocable, non-exclusive licence to use such Intellectual Property, solely for the purpose of enabling Reposition, or any of its contractors, consultants or appointees, to provide the Services.
(e) This clause will survive the termination, expiration or completion of this Agreement. - LIMITATION OF LIABILITY
(a) The Client may have certain rights under the Australian Consumer Law (”ACL”), or under other similar or related consumer protection laws.
(b) The ACL (or any other similar or related consumer protection laws) may give the Client certain rights, warranties, guarantees and remedies regarding the provision of services by Reposition, which cannot be excluded, modified or restricted by Reposition (”Statutory Rights”).
(c) Reposition's liability to the Client is governed solely by the ACL (and any other similar or related consumer protection laws) and by this Agreement.
(d) To the maximum extent permitted by law, Reposition excludes all conditions and warranties implied by custom, law or statute, except for the Client's Statutory Rights, and Reposition expressly disclaims all warranties of any kind.
(e) The Client hereby agrees that the Client is solely responsible for determining whether the Services are fit for the Client's purpose.
(f) Except in cases of death or personal injury caused by a Party's negligence, that Party's liability in contract, tort or otherwise arising through or in connection with this Agreement or through or in connection with the completion of obligations under this Agreement, liability shall be limited to Fees paid by the Client to Reposition.
(g) To the extent it is lawful, neither Party shall be liable to the other Party in contract, tort, negligence, breach of statutory duty or otherwise for any loss, damage, costs or expenses of any nature whatsoever incurred or suffered by that other Party of an indirect or consequential nature including without limitation any economic loss, data loss, loss of goodwill, or other loss of turnover, profits or business.
(h) When the Client's Statutory Rights apply, to the maximum extent possible, Reposition's liability in respect of any claim is limited to, at Reposition's option:
a. the supply of the Services again; or
b. the payment of the cost of having the Services supplied again.
(i) Reposition's failure to exercise or enforce any right or provision of this Agreement will not constitute a waiver of such right or provision.
(j) This clause will survive termination, expiration or completion of this Agreement.
(k) Without limiting the above, Reposition will not be liable to the Client for any loss or damage, where Reposition has relied on information of materials provided by the Client in relation to the Services to the extent the loss or damage is caused or contributed to by such reliance. - INDEMNITY
(a) Subject to clause 18, each Party, (which for the purposes of this clause shall be referred to as the ”Indemnifying Party” as the context requires) hereby respectively indemnifies, keeps indemnified, and holds harmless the other Party, as well as any of the other Party's employees, agents, officers, representatives, affiliates, and permitted successors and assigns, against any and all demands, claims, losses, damages, liabilities, penalties, punitive damages, expenses, reasonable legal costs, and any other costs whatsoever which may arise out of:
a. any act or omission of the Indemnifying Party in connection with this Agreement; or
b. any act or omission of any of the Indemnifying Party's employees, agents, officers, representatives, affiliates, or permitted successors and assigns in connection with this Agreement; or
c. the Services or anything provided under this Agreement; or
d. the relationship between Reposition and the Client.
(b) The Indemnifying Party shall not be liable under the indemnity given under this clause where a court of competent jurisdiction, giving a final judgment, holds that any loss, damage or liability is the result of the gross negligence, wilful misconduct or bad faith of the other Party or of any of the other Party's employees, agents, officers, representatives, affiliates, or permitted successors or assigns.
(c) This clause will survive termination, expiration or completion of this Agreement. - COMPLIANCE WITH LAWS
(a) Reposition must, at Reposition's own cost, comply with all laws which relate to or affect the Services, the Agreement or Reposition, including but not limited to regulations, legislation, delegated legislation, ordinances, rules, codes and any other requirements of any Federal, State or Local authorities, bodies or government departments (”the Laws”).
(b) Reposition hereby indemnifies, keeps indemnified and holds harmless the Client against any actions, costs, charges, claims or demands in relation to a breach of the Laws.
(c) This clause will survive the termination, expiration or completion of this Agreement. - ENTIRE AGREEMENT
(a) The Parties agree that in relation to the subject matter of this Agreement, this Agreement represents the entire agreement between the Parties. The Parties confirm that no warranties, representations, conditions or collateral agreements affect this Agreement or the subject matter of this Agreement except as expressly provided in this Agreement.
(b) The Parties each respectively agree that in entering into this Agreement, they did not do so in reliance on any representations, warranties or other provisions except for those which are expressly provided in this Agreement.
(c) The Parties agree that any warranties, conditions or other terms implied by law are expressly excluded from this Agreement to the maximum extent permitted by law.
(d) No amendment to or modification of this Agreement, and no additional obligation or obligations in relation to this Agreement or the subject matter of this Agreement, will bind any Party unless evidenced in writing and signed by both Parties. - WRITTEN COMMUNICATION
(a) In relation to any correspondence or notification which is required under this Agreement to be provided in writing from one Party to the other Party:
a. such notice is properly given if given to the other Party:
i. by email to an email address that the other Party has nominated, acknowledged or used in connection with the Services or this Agreement.
ii. by facsimile to a facsimile address which the other party has nominated, acknowledged or used in connection with the Services or this Agreement.
iii. by post to a postal address the other party has nominated, acknowledged or used in connection with the Services or this Agreement.
b. such notice is taken to be received:
i. if sent by email, when the email becomes capable of being retrieved by the recipient at the relevant email address.
ii. if sent by facsimile, at the time shown of correct and complete transmission to the recipient's facsimile number by the sending machine.
iii. if sent by prepaid post within Australia, five (5) days after the date of posting.
iv. if sent by prepaid post to or from an address outside Australia, twenty one (21) days after the date of posting. - TERMINATION
(a) This Agreement may be terminated by Reposition if the Client fails to pay any requisite Fees within thirty (30) days after the date they are due. Reposition may terminate the Agreement immediately, with no notice period, in writing.
(b) Aside from termination by Reposition in response to the Client's failure to pay any Fees, as set out in the preceding sub-clause hereof, this Agreement may be terminated by either Party, upon notice in writing:
a. if the other Party commits a material breach of any term of this Agreement that is not capable of being remedied within thirty (30) days or that should have been remedied within thirty (30) days after a written request and was not;
b. if the other Party becomes unable to perform its duties under this Agreement, including a duty to pay or a duty to perform;
c. if the other Party or its employees or agents engages in any conduct prejudicial to the business of the other, or in the event that either Party considers that a conflict or potential conflict of interest has arisen between the Parties.
(c) If this Agreement, or any Services, are to be provided for a minimum Term, the Client may not terminate this Agreement or those Services without the consent of Reposition, which may be granted or withheld at Reposition's sole discretion.
(d) If this Agreement, or any Services, are to be provided on a recurring or subscription basis, without any agreed minimum Term, then the Client may terminate such Agreement or Services such by providing not less than 30 days written notice to Reposition.
(e) If this Agreement is terminated before the expiration of its natural term, the Client hereby agrees to pay for all Services rendered up to the date of the termination, and, where the Agreement is terminated other than due to a breach by Reposition, for any and all expenditure due for payment after the date of termination for commitments reasonably made and incurred by Reposition related to the rendering of Services prior to the date of termination.
(f) Any termination of the Agreement under this clause shall not affect the accrued rights and liabilities of either Party under this Agreement or at law and shall be without prejudice to any rights or remedies that either Party may be entitled to.
(g) Any part of this Agreement which is meant to continue after termination or which is meant to come into force at or after termination shall not be affected by this clause. - ASSIGNMENT
Neither Party will, whether voluntarily or by operation of law, assign, subcontract, delegate, mortgage, charge or otherwise transfer any of its rights or obligations under this Agreement without the prior written consent of the other Party. Despite the above, Reposition may, after providing notice to the Client, subcontract all or part of the Performance of the Services to a related body corporate (as that term is defined in the Corporations Act 2000 Cth) of Reposition, save that Reposition will at all times remain liable to the Client as if the actions of any subcontractor had been performed by Reposition.
- WAIVER
(a) The waiver by either Party of any right or remedy in relation to a breach, default, delay or omission by the other Party of any provision or provisions of this Agreement will not be construed as a waiver of any subsequent breach of the same or other provisions of this Agreement.
(b) The failure or delay by either Party in exercising any right or remedy under this Agreement will not constitute a waiver of that right or remedy, nor will it prevent or impair that Party from subsequently exercising that right or remedy.
(c) Any rights or remedies provided in this Agreement are cumulative and are in addition to any rights or remedies provided by law. - FORCE MAJEURE
(a) In the event that circumstances arise which:
a. are outside of the reasonable control of a Party; and
b. materially affect that Party's performance of its obligations under this Agreement; and
c. could not have been reasonably foreseen or avoided; (hereinafter ”the Circumstances”), then that Party will not be deemed to be in breach of this Agreement and will not have any liability under this Agreement for any delays or failures in performance of that Party's respective obligations under this Agreement.
(b) In the event that such a delay or failure occurs, the Party affected by the Circumstances must immediately notify the other Party in writing of when the Circumstances cause a delay or failure in performance, and when the Circumstances no longer cause a delay or failure in performance.
(c) Either Party may terminate this Agreement, if the Circumstances continue for a continuous period of three months or more, by providing written notice to the other Party. - APPLICABLE LAW
This Agreement is subject to the laws of New South Wales and each Party submits to the jurisdiction of the courts of New South Wales.
- SEVERABILITY
If any clause or sub-clause of this Agreement is held to be invalid or unenforceable, it is to be read down or severed such that the remaining clauses and sub-clauses will be enforced to the maximum extent possible. In such circumstances the remaining provisions of this Agreement shall continue in full force and effect.
- SURVIVAL OF OBLIGATIONS
At the termination, expiration or completion of this Agreement, any provisions of this Agreement which would by their nature be expected to survive termination or expiration shall remain in full force and effect, including but not limited to any provisions which explicitly state that they will survive termination or expiration.