Legal Terms & Conditions

These terms govern the way in which Careers in Mind Pty Ltd ACN 611 103 194 trading as Flourishing Minds Consulting (“we”, “us” or “our”) provides services to our clients (“you” or “your”). These terms must be read alongside the Key Terms and Proposal or Statement of Work we provide to you.

1.         COMMENCEMENT AND TERM

1.1.      In these Terms and Conditions and any agreement with us the following expressions have the following meanings, unless otherwise stated:

“Agreement” means the agreement set out in the Key Terms and these legal terms and conditions and any Proposal or Statement of Work, which shall be read in conjunction and together form the Agreement.

“Business Day” means a day other than a weekend or public or bank holiday in Victoria, Australia;

“Commencement Date” means the commencement date specified in the Key Terms and if there is no date specified, the date that the last of the parties signs the Agreement;

"Confidential Information” means:

(a)      technology and all information clearly marked confidential, software architecture, programs, source code, software, designs, systems, methods and procedures, trade secrets, ideas, know-how, plans, concepts and information whether in writing or otherwise, details of customers, business, sales, marketing or promotional information and financial information;

(b)      information or communication that is designated by an employee, officer, or agent of the Parties to be confidential;

(c)      information or communication the recipient knows or reasonably ought to know is confidential or is held in confidence on behalf of a third party;

(d)      Intellectual Property of either Party or that Party’s clients or partners;

(e)      that part of all notes and other records prepared based on or incorporating information referred to in sub-paragraph (a); and all copies of information and those parts of the notes and other records referred to.

“Consultants” means the employees, subcontractors, and/or consultants which we may use to perform the Services;

“Deliverables” are the deliverables set out in the Proposal or Statement of Work;

“Fees” means the amounts set out in the Proposal or Statement of Work including any rates for the Services and amounts payable for Deliverables;

“Intellectual Property Rights” means all present and future intellectual and industrial property rights throughout the world of whatever nature (whether or not registered or registrable) including, but not limited to, all technical information, know-how, copyright, trade marks, designs, patents, domain names, business names, logos, drawings, trade secrets, the right to have confidential information kept confidential or other proprietary rights, or any rights to registration of such rights, whether created, written developed or brought to existence by us or you in the provision of the Services;

“Key Terms” means those terms setting out the key terms of our engagement, and which form part of the Agreement;

“Location(s)” means the location(s) where the Services and/or Deliverables are to be provided as set out in the Key Terms;

“Proposal(s)” means the proposal or proposals we provide to you setting the particular Services and Deliverables and the associated Fees and Location(s);

“Scheduled Date” means the date scheduled for delivery of the Services or Deliverables e.g. a scheduled workshop date or date for delivery of materials;

“Services” are the Deliverables set out in the related Proposal or Statement of Work;

"Statement of Work" means the information we send to you setting the particular Services and Deliverables and the associated Fees and Location(s); this may be provided in a document or any other form of writing, including email.

“Term” is defined in the Key Terms.

1.2.      If you are contracting with us for the supply of Services directly to a third party then you will:

(a)     procure that such third party will comply with the terms of the Agreement; and

(b)     indemnify us for any claim, loss, damage or expense incurred by us as a result of any breach of the terms of the Agreement by such third party.

1.3.       You acknowledge and agree that no Services or Deliverables will be provided to you until we have received a signed copy of the Agreement.

2.         SERVICES AND DELIVERABLES

2.1       We will perform the Services and produce any Deliverables in return for payment of the Fees.

2.2       All Deliverables will be produced based on the information and explanations supplied by you. It is not within the scope of our obligations to enquire as to, or to verify, the accuracy or completeness of information that we receive from you or any third parties.

2.3       All information that we provide is supplied in good faith, but we do not warrant or guarantee the accuracy or completeness of any information provided by us or any third party.

2.4       We will not be obliged to provide any Services or produce any Deliverables that are not described in the Key Terms, Proposal, or Statement of Work.

2.5       We will only be obliged to provide the Services at the Location(s), unless otherwise agreed in writing.

2.6       We will use reasonable endeavours to provide the Services and Deliverables in accordance with the Key Terms and in accordance with any related legal requirements..

2.7       The provision of Consultants, or our agents, to perform our obligations will be at our sole discretion.

2.8       We warrant that as at the date of this Agreement and during the Term the Services will be performed:

(a)        with due care and skill in as competent and professional manner as reasonably possible;

(b)        in accordance with generally applicable industry standards; and

(c)        in accordance with all applicable laws and regulations.

2.9     Whilst so providing the Services, we shall remain an independent contractor at all times, and, as such:

(a)         assume full responsibility for our acts and omissions; and

(b)      be solely responsible for any payments in respect of any employment benefits payable, including any sick leave, long service leave, superannuation, workers' compensation, accident, sickness and life insurance in respect to the provision of Services; and

(c)         provide all necessary tools to carry out the Services.

2.10   Nothing in this Agreement makes us liable for any comment made by a participant in the course of our provision of the Services. For the purposes of this clause 2.10, comment includes a statement published orally, in writing, or by an image in any manner about an identifiable person.

3.         FEES AND PAYMENT

3.1       You will pay us the Fees for the Services and Deliverables supplied in accordance with the Key Terms and/or the Proposal or Statement of Work..

3.2       If payment of the Fees is not received by any applicable due date either described in the Key Terms or on the relevant invoice provided to you, we will be entitled (without prejudice to any other right or remedy) to:

(a)     withhold provision of the Services or delivery of any Deliverables until payment is received in full and in cleared funds;

(b)     charge interest on the outstanding amount at the rate of 5.5% per annum;

(c)     require that you make advance payments of the Fees or other amounts due in full or in part prior to the supply or delivery of the Services or Deliverables; and/or

(d)     terminate the Agreement pursuant to clause 8.

3.3       You will make all payments without tax deduction unless a tax deduction is required by law. If you are required to make a tax deduction by law, the payment due from you to us will be increased to an amount which (after making the tax deduction) leaves an amount equal to the payment which would have been due if no tax deduction had been required.

3.4       3.4 You will indemnify us for any loss, liability, or cost that we directly or indirectly suffer in relation to any tax other than tax levied under the law of Australia unless that loss, liability or cost is compensated by an increased payment.

3.5 In the event that the Agreement is terminated pursuant to clause 8 herein, then You agree to immediately pay any unpaid Fees and/or the balance of any unpaid instalment plan in respect to the Fees.

3.6 Should it become necessary for Us to enforce any term of this Agreement either through legal representation, collection agency, or directly through a small claims Court, then You agree that you shall pay all reasonable legal fees, agency fees, court costs, and other reasonable collection costs.

Out of Scope Fees

3.7       You agree and acknowledge that any Services not provided for in the Description of Services contained in the Proposal and/or Statement of Works shall be considered Out-of-Scope Services. Our engagement under this Agreement will not include any Out-of-Scope Services, unless specifically agreed in writing between the Parties. If You require the provision of any Out-of-Scope Services, these will be charged additionally at a rate agreed in writing between the Parties.

4.         YOUR OBLIGATIONS

4.1       You will comply with your obligations under the Agreement.

4.2      You acknowledge and agree that for us to be able to provide the Deliverables or the Services without interruption at your cost, you will ensure that your staff, consultants, and/or contractors:

(a)     co-operate with and assist us in the performance of the Services;

(b)     promptly provide us with full and accurate information, data, and explanations as and when required;

(c)     provide our Consultants with full and safe access to the Location;

(d)     where applicable, provide without charge suitable office accommodation, materials, equipment and facilities (including use of telephone and support services) as we and/or our Consultants reasonably require to carry out the Services.

4.3    You agree that you shall provide provide sufficient details, material, and information (“Client Materials”) to Us as reasonably requested by Us to allow Us to carry out the Services.

4.4  You, including your authorised representatives, agree to supply the Client Materials to Us within a reasonable time frame after execution of this Agreement, or after request from Us.

4.5     You agree and acknowledge that any delay caused by You or your authorised representatives failing to provide the Client Materials to Us may cause significant delay to the provision of Services. Further, You agree that We shall not be liable for any delay to the provision of the Services caused by the failure of You to provide the Client Materials in a timely manner.

4.6     You, including its authorised representatives, shall not submit any Client Materials which are knowingly based on other works and for which You have not obtained the necessary rights. You indemnify and keeps indemnified Us from any claim made by a third party for a breach of copyright or Intellectual Property Rights as a result of publication or use of the Client Materials.  

4.7 You will procure all necessary rights from third parties, which are from time to time required in order for us to be able to provide the Services.

4.8     If we are delayed or impeded or obliged to spend additional time or incur additional expenses in the performance of any of our obligations under the Agreement, by reason of your acts or omissions or failure to provide information or instructions or perform your obligations under the Agreement, then you will pay us any additional reasonable costs and expenses incurred by or on our behalf and any timetable in the Key Terms or other agreed target time specified for the performance by us of any of our obligations will be extended accordingly.

5.         WARRANTIES

5.1       We will use reasonable care and skill in performing the Services.

5.2      We will investigate any problem or error in any Deliverables, provided that you notify us in writing within seven (7) days following delivery of the Deliverables, giving us all necessary information to be able to investigate the problem, breach or error and limit our liability to the right to re-submit the Deliverables or re-perform the Service.

5.3       You agree to use your reasonable endeavours to ensure that the information and explanations you supply are full and accurate and notify us in writing if there is any change to the information or explanations supplied.

5.4       Except as provided in the Agreement and to the maximum extent permitted by law, no further warranty, condition, undertaking or term, express or implied, statutory or otherwise as to the condition, quality, performance or fitness for purpose of the Services provided hereunder is given or assumed by us and all implied warranties are hereby excluded.

6.         LIABILITY AND EXCLUSIONS

6.1       Except as provided for in this Agreement, We make no representation of any kind, express or implied, with respect to the delivery of the Services.

6.2 Nothing in the Agreement will in any way exclude or limit either party's liability to the other for death or personal injury caused by negligence, or liability for fraudulent misrepresentation or for any other liability which by law it is not possible to exclude or limit.

6.3      Our total liability to you (whether based on warranty, contract, tort, statute, misrepresentation or otherwise) arising out of, or in connection with, the Agreement, for any one event or a series of related events, will be limited to the total Fees paid (excluding GST and expenses) by you to us for the Services or Deliverables (as applicable) in the three (3) months immediately prior to the event(s) complained of. 

6.4      Neither party will be liable for any indirect, consequential, special or incidental loss or damages of any kind including loss of revenue, loss of profits, failure to realise expected profits or savings, overhead costs or other economic losses, in contract, tort (including negligence) under any statute otherwise arising out of or in any way connected to the Agreement.

6.5     The parties acknowledge that the limitations of liability contained in this clause are a fair and reasonable allocation of the commercial risk between the parties.

6.6     You agree to indemnify, defend and hold harmless Us, our related entities, shareholders, agents, affiliates, employees, directors and officers, from any and all liability, claim, loss damage, demand or expense (including reasonable legal costs) asserted by any third party due to, arising from, or in connection with any breach by either party of the terms of this Agreement. This includes, without limitation, any representation or warranty contained herein, any fraudulent conduct committed or negligence by either party, all liabilities related to the Services, any investigation or government claim, and/or any intellectual property claims associated with any and all copy and images supplied by either Party and its associated use thereof.

6.7   No action arising under or relating to this Agreement, regardless of its form, may be brought by either Party more than six (6) months after the cause of action has occurred and in any event, no later than six (6) months after the termination of this Agreement, except for an action for non-payment brought by Us.

6.8   If Australian Consumer Law or any other legislation implies a condition or warranty into this Agreement in respect of the Services supplied, and our liability for breach of that condition or warranty may not be excluded but may be limited, Clause 6.1 does not apply to that liability and instead our liability for such breach is limited to Us supplying the Services again or paying the cost of having the services supplied again by a third party.

6.9       This clause survives the termination or expiry of the Agreement.

7.         CONFIDENTIALITY

7.1       Both parties agree not to use or disclose confidential information relating to, owned by, received from or disclosed by the other party, save for use or disclosure required in order to perform their respective obligations under the Agreement, or as otherwise required by law. Disclosure will be limited to such of the receiving party's employees, officers, agents or contractors directly involved in performing the receiving party's obligations.

7.2      Both parties must:

(a)         keep all Confidential Information secret and confidential;

(b)         not use all or any of the Confidential Information otherwise than for the provision of Services under this Agreement;

(c)         take all reasonable and necessary precautions to maintain the secrecy and prevent the disclosure of any Confidential Information.

7.3       The parties agree that information is not to be regarded as confidential and that the receiving party will have no obligation regarding confidentiality where that information is already in the public domain or enters the public domain through no fault of the receiving party, is received from a third party without any obligations of confidentiality, is used or disclosed with the prior written consent of the owner of that information, is disclosed in compliance with a legal requirement or is independently developed by the receiving party.

7.4       Any Confidential Information will be returned or destroyed by the receiving party at the prior written request of the owner.

7.5       If the parties execute a separate confidentiality agreement, the terms of that agreement will prevail.

7.6       We have ensured that all current Consultants, and will ensure that all future Consultants, enter into appropriate confidentiality agreements. Consultants will only have access to your confidential information on an as needs basis. 

7.7       The Parties covenant and warrant that they shall at all times act in good faith in accessing the Confidential Information and shall not act in any way contrary to the commercial interests of the other Party and shall not knowingly circumvent the other Party in its dealings with any other third party as at the date of this Agreement or whilst this Agreement is in force.

7.8       The Parties acknowledge and agree that the Confidential Information is confidential and of significant commercial value and that damages may not be a sufficient remedy for a breach by the receiving party of this Agreement.

7.9       This clause survives the termination or expiry of the Agreement.

8.         TERMINATION

8.1       We may terminate the Agreement (or at our discretion, the supply to you of the Services or the Deliverables) immediately if you fail to pay our invoices and such sum remains unpaid for fourteen (14) days after notice has been given to you that such sum has not been paid.

8.2      Either party may terminate the Agreement immediately on notice if:

(a)     the other is in breach of the Agreement to a material extent and fails to remedy the breach within fourteen (14) days of being notified of the breach (if it is capable of being remedied); or

(b)      the other party commits any act of dishonesty, fraud, wilful disobedience, or wilful misconduct in the course of carrying out this Agreement; or

(c)      any of the following occurs in respect of either party:

(i)     The commission of any act of bankruptcy;

(ii)    The entering into or resolution to enter into an arrangement, composition or compromise with or assignment for the benefit of their creditors generally or a class of creditors or proceedings are called to sanction such arrangement, compromise or composition;

(iii)   The appointment of a receiver, receiver and manager, official manager, trustee, administrator or similar official is appointed, or steps are taken for such appointment, over any assets or undertaking;

(iv)   The suspension of payment of debts generally; and/or

(v)    The Party becomes unable to pay its debts when they are due or is or is presumed to be insolvent.

8.3      On your termination of the Agreement for whatever reason, we will be entitled to payment of cancellation Fees as set out in the Key Terms.

9.         INTELLECTUAL PROPERTY

9.1       You recognise and acknowledge that all:

(a)     Intellectual Property Rights existing in the materials and Deliverables we provide to you are either owned by us or our affiliates, , and you acknowledge that you acquire no beneficial interest in the Intellectual Property Rights which at all times shall remain the property of us;

(b)     Intellectual Property Rights created out of the performance of this Agreement immediately and automatically vest with us, and you will take all such steps as practicable to ensure that these Intellectual Property Rights will vest in and remain vested in us.

9.2       We grant you a non-exclusive, non-transferable, revocable license to use the Intellectual Property Rights owned by us that have been provided to you for the sole purpose of carrying out your business during the Term. You hereby covenant that you will not distribute the Intellectual Property contained in the Services and/or Deliverables to any third party who is not a direct employee, staff member, contractor, or agent of You.

9.3       You must not sub-license your rights under clause 9.2 without our prior written consent, which may be given or withheld in our sole discretion.

9.4      You retain ownership rights to data and content that you provide to us (“Customer Data”). You grant us a worldwide, perpetual, irrevocable, non-exclusive and royalty free license to access and use the Customer Data for the purpose of performing our obligations under the Agreement.

9.5      You agree and warrant that you shall not share or distribute any content contained in the Services and/or Deliverables (whether in whole or in part).

9.6     You agree and acknowledge that we shall be permitted to share and distribute content created in the provision of the Services with other clients and customers of ours, provided only that such distribution does not breach privacy laws and any other relevant legislative provisions.

9.7     The parties agree that upon expiration of the Term, the grant of licence for the Intellectual Property Rights shall also expire, unless otherwise agreed in writing between the Parties.

9.8      You agree that we may refer to you, your business name, publish your logo and/or trade mark and make reference to you as a customer of ours in any communications or publications for the purposes of marketing or promoting our business.

9.9 You hereby grant Us a perpetual, worldwide, irrevocable, licence to use, reproduce and display any case studies (“Case Studies”) created using results received in relation to the Services carried out, and that such Case Studies may be used for both marketing and promotional purposes and/or further studies, including but not limited to Our research, publications, website, proposals, marketing materials, the press, and on any other websites owned and/or operated by Us, provided always that the Case Studies shall remain anonymous.

10.      SITUATIONS OR EVENTS OUTSIDE OUR REASONABLE CONTROL

10.1 The Parties shall not be liable to the other Parties under the terms of this Agreement for any failure to perform or delay in performance of this Agreement due to any cause beyond the reasonable control of the Party whose performance is so affected, including, without limitation, strikes, explosions, floods, riots, lockouts, pandemic, injunction, interruption or transport accidents, government action, mechanical breakdown, interruption to internet service, any interruption, suspension, failure or termination by any third party media or social network provider, or an act of God (collectively, “Force Majeure”).  If the Force Majeure event continues for thirty (30) consecutive days, or is reasonably expected to continue for thirty (30) consecutive days, then the Party other than the non-performing Party may terminate this Agreement upon thirty (30) days prior written notice, upon which any Deposit shall be forfeited and no further monies shall be payable pursuant to this Agreement.

11.      GENERAL

11.1    The relationship between You and Us is that of a principal and an independent contractor. Nothing in this Agreement will constitute or deem Us to be an employee of You nor will anything in this Agreement be construed as creating an employment relationship between the You and Us.

11.2 Variations to the Agreement will only be effective if in writing and signed by authorised representatives of both parties.

11.3    We may assign, sub-contract, or otherwise transfer any or all of our rights and/or obligations under the Agreement. You may only assign, subcontract, or otherwise transfer any or all of your rights and/or obligations under the Agreement with our prior written consent, which can be refused at our absolute discretion.

11.4    If either party chooses to waive or ignore a breach of the Agreement, this will not prevent that party from taking action in respect of the same type of breach at a future date.

11.5    The Agreement will not constitute or imply any partnership, joint venture, agency, fiduciary relationship or other relationship between the parties other than the contractual relationship expressly provided for in the Agreement. Neither we nor you will have, nor represent that it has, any authority to make any commitments of this kind on the other party's behalf.

11.6    If any provision of the Agreement is held invalid or unenforceable, such provision will be deemed deleted from the Agreement and replaced by a valid and enforceable provision which so far as possible achieves the parties' intent in agreeing to the original provision. The remaining provisions of the Agreement will continue in full force and effect.

11.7    The Agreement is governed by the laws of Victoria, Australia and the parties submit to the non-exclusive jurisdiction of the courts exercising jurisdiction there.

11.8    The Agreement may be executed in counterparts and all counterparts taken together will constitute one instrument.

11.9 The Agreement and the Proposal or Statement of Work constitutes the entire agreement between the parties in respect of the subject matter of the Agreement and supersedes and replaces any prior written or oral agreements, representations or understandings. The parties confirm that they have not relied on any representation that is not expressly incorporated into the Agreement or Proposal or Statement of Work.