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Terms and Conditions of Business (Terms)

DEFINITIONS

In these terms:
‍
Agreement means any agreement or supply of services between Alinea Group (Alinea) and the client as defined by these Terms;
‍
Claim means each claim, action, proceeding, damage, loss, cost, expense or liability incurred or suffered by or made or recovered however it arises and whether present, future, contingent, ascertained or unascertained;
‍
Client means any person or entity to whom Alinea provides services to including the client’s officers, employees, agents and contractors;
‍
Confidential Information means any information which either party has become possessed of by virtue of the agreement and includes information relating to business affairs and employees or contractors excluding any information that is in the public domain;
‍
Fees means the fees payable by client to Alinea for the provision of services under the agreement;
‍
Intellectual Property means all know-how, copyright and all rights in relation to inventions, registered and unregistered trade marks (including service marks), registered designs, confidential information and trade secrets.
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Notice means written notice by post or email;
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Proposal means any written proposal, proposal clarification letter, email or written offer from Alinea to client;
‍
Services means any or all of the services as are listed in the agreement and/or proposal;
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Site means any land, property or place of business that services are to be performed;
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We or Us or Ours means Alinea Advisory Pty Ltd (ABN 67 624 832 079), its employees, agents, suppliers or sub-contractors;
‍
Work means provision of the services as detailed in the agreement and/or proposal;
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You, Your or Yours means the company/client as listed on the proposal and/or agreement, it’s employees, agents, suppliers or sub-contractors.

Purpose

  1. The purpose of these terms is to set forth the responsibilities for both parties associated with the provision of the services as detailed in the agreement and/or proposal.
  2. In collaboration with the client, we will provide a range of services as detailed in the agreement and/or proposal.

Interpretation

3. In these terms:

  1. singular includes plural and vice versa;
  2. reference to a person includes a corporation and partnership and vice versa;
  3. headings do not affect interpretation;
  4. if any provision of the agreement is void or voidable or unenforceable in accordance with its terms but would not be void, voidable, unenforceable or illegal if it were read down and,
    it is capable of being read down, that provision must be read down accordingly.

Application

4. These terms

  1. apply to the agreement;
  2. prevail over any terms put out by the client, unless Alinea agree in writing;
  3. are formed when the client accepts the proposal;
  4. apply to each agreement.

Agreements

5.
The period of the agreement begins once the proposal is accepted and signed and continues until terminated or the services are completed.

Alinea Obligations

6. Alinea shall undertake the services as detailed in the proposal:

  1. The services will be provided by our employees, contractors or sub-contractors who are appropriately qualified and the services will be performed with due care and skill.
  2. The provision of the services will comply with all applicable laws, regulations and standards and all regulatory approvals and checks will be undertaken, where necessary.
  3. The manner and timing of performance of the services shall give due consideration to any reasonable direction given by the client.

Client Obligations

7. The client shall undertake the following activities under the agreement:

  1. Make available and issue to Alinea any relevant instructions or other material, as reasonably required for the delivery of the services under the agreement.
  2. Provide reasonable assistance as requested by Alinea from time to time, to allow Alinea to competently carry out the responsibilities under the agreement.
  3. The client warrants that all efforts have been taken to ascertain any risks that may exist at the relevant sites and that they have communicated to Alinea all necessary information.

Fees and Working Arrangements

8.
Fees payable under the agreement are contained in the proposal. Any additional agreements for separate services will be subject to a separate proposal and agreement.
9.
Any variations to the scope of the agreement may be mutually agreed in writing.
10.
In addition to the Fee, the client will reimburse Alinea for all expenses reasonably and properly incurred in providing the services.
11.
Invoices are due to be paid 14 days from the date of the invoice unless alternative arrangements have been agreed in writing.
12.
All payments will be made in full and the client may not deduct from the payment any set off, counterclaim or other sum unless Alinea agree in writing.
13.
If payment of any invoice is overdue, Alinea may charge interest at 2% from the date of the default until payment is received.

Termination of Agreement

14.
Either party may terminate the agreement by giving to the other one (1) months written notice.
15.
In the event that the client terminates the agreement before services are completed, Alinea may retain any deposit or other sums paid on account of the services and if the payment for the services is not already made in full, Alinea may issue an invoice or invoices for the work already done and for costs incurred and the client must pay such invoices in accordance with these terms.
16.
Termination does not affect any the rights or remedies existing before termination or arising from termination.

Early Termination of Agreement

17.
Alinea may without prejudice to any of their rights by written notice immediately terminate the agreement if:
  1. The client fails to remedy a breach of their obligations under the agreement within the time specified in a default notice served to the client by Alinea.
18.
If Alinea do not carry out (in whole or in part) their performance obligations under the agreement the client must notify Alinea in writing of the non-performance. If Alinea do not remedy that non-performance within the agreed time period, the client may terminate the agreement by providing 30 days written notice to Alinea.
19.
Either party may terminate the agreement by written notice to the other party if:
  1. the other party becomes insolvent; or
  2. has a material adverse change in their financial position that gives reasonable grounds for believing that the obligations under the agreement may be unable to be fully and promptly performed; or

Instructions and Communications

20.
Unless the client gives Alinea notice to the contrary, Alinea will assume that:
  1. all of the client’s employees, agents, suppliers and sub-contractors who give Alinea instructions are authorised to do so and that Alinea may act on oral instructions;
21.
Alinea may communicate with the client by email and cannot guarantee such electronic communications will be secure or free from infection. Alinea does not accept liability for any loss or damage caused by electronic communications.
22.
Alinea are not liable to the client for any damage or loss suffered by the client which results from Alinea following the client’s directions or specifications in performing the services.

Liability

23.
Alinea will not be liable to the client for any consequential, contingent, special or indirect or consequential loss or damage whatsoever resulting from the loss of business, revenue or profit or anticipated profit with respect to claims arising in connection to the agreement including any act or omission by Alinea in performing the services or for a breach of agreement or for negligence.
24.
The total liability in relation to the agreement is limited to the value of the services provided in the agreement.

Force Majeure

25.
Alinea will not be liable for delay or failure to perform any obligations under the agreement to the extent that such delays or failures are caused by a force majeure event.
26.
A force majeure event means any circumstance not within Alinea’s direct or reasonable control including labour disputes, obtaining labour, materials or goods, destruction or damage to premises or a relevant work site, malfunction, breakdown or damage to plant or equipment, breach of contract, default or insolvency of any third party, an act of government or governmental authority, terrorism, disruption to the supply of power, gas, water, electronic or telecommunication services, civil disorder, the weather or other natural events.
27.
Alinea may terminate the agreement 30 business days after the occurrence of a force majeure event, if in our opinion, Alinea is unable to perform its obligations or can only perform the services within the agreement at a loss due to the effect of the force majeure event.

Assignments and Amendments

28.
The client must not assign their rights under the agreement with Alinea without our prior written consent.
29.
The agreement can only be amended by mutual agreement of both parties in writing.
30.
Alinea can only waive their rights under the agreement by providing notice to the client.

Dispute Resolution

31.
Until the relevant provisions of this clause have been complied with, no party shall commence any action, bring any proceedings or seek any relief or remedy in a court or by arbitration, except that nothing in this clause prevents either party from seeking interlocutory or equitable relief from a court.
  1. The parties must endeavour in good faith to resolve any dispute in relation to the agreement expeditiously by negotiation.
  2. If the dispute has not been resolved within 14 working days (or a longer period if the parties agree) of one party sending the other party written notification that they are in dispute, the dispute must be submitted by either party to mediation. The mediation will be conducted in accordance with the Australian Commercial dispute Centre’s Mediation Guidelines in force at the time that the dispute is referred.
  3. If the dispute is not resolved within 60 days after the date of the written notification given, either party who has complied with this clause may terminate the dispute resolution process undertaken and commence court proceedings in relation to the dispute.

General

32.
The client or any of their affiliated companies will not recruit or employ any of the personnel Alinea have used for the provision of the services in this contract directly or indirectly through any other agency or company for a period of 6 months from the completion of the agreement. If the client does so, a minimum of a $20,000 placement fee payable to Alinea will apply to provide for loss of revenue and the costs of replacing the relevant personnel.
33.
Nothing in the agreement is intended or deemed to imply any employment relationship between the client and Alinea.
34.
Each party takes legal and financial responsibility for the actions of its respective employees, officers, agents, representatives and volunteers.

Indemnity

35.
The client indemnifies Alinea against any claim, action, damage, loss, liability or cost which Alinea may incur arising out of any breach by the client of the agreement or any negligence or wrongful act or omission by the client.

Intellectual Property

36.
We own all intellectual property rights, including but not limited to copyright, in all the materials provided to the client for the purposes of the agreement. Such materials may not be used without Alinea’s written consent for any purpose other than that for which they are
expressly provided. The client may not use, reproduce or communicate the contents of such material to any third party without Alinea’s prior written consent.
37.
At the end or termination of the agreement the client must return to Alinea all materials and intellectual property belonging to Alinea within 14 days.

Confidential Information

38.
Each Party undertakes that it will not disclose to any person any confidential information of or relating to the other party of which it has become possessed as a result of the agreement.
39.
The client warrants that it has obtained all necessary consents and approvals to share confidential information with Alinea.
40.
At the end or termination of the agreement the parties must return all confidential information belonging to the other party within 14 days.
41.
The obligations under this clause survive termination of the agreement.

Publicity

42.
Alinea may publicise that Alinea is providing services to the client (including on the Alinea Website).

Law and Jurisdiction

43.
The agreement is governed by South Australian law and any dispute arising in connection with the agreement is subject to the exclusive jurisdiction of the courts of South Australia.