Engagement Terms & Conditions
By engaging Right Brain Enterprises Pty Ltd (ABN 85 159 747 181) (“RBE”), trading as Right Brain Insights to provide Services (defined below) you: agree to pay Fees (defined below); confirm your acceptance of these terms and conditions and the applicable Statement(s) of Work as defined below (together, "Agreement”); and agree that the Agreement will prevail over any other documents or agreements. No change or update to the Agreement will be binding unless agreed by you and RBE in writing. In the event of a conflict between the applicable Statement of Work and these terms and conditions, the former shall prevail.
1. Services
RBE provides business consulting and business operations services, as described in each Statement of Work (“Services”). Statement of Work shall mean any work order, estimate, quote or any other document signed by you and RBE or otherwise mutually approved in writing. You acknowledge and agree that RBE is not a licensed financial planner, tax agent, lawyer or accountant and as such does not provide financial, tax, legal or accounting advice. If you require, RBE can refer you to such advisors, but RBE does not assume responsibility for any advice that they may provide to you. You are responsible for complying with your financial, tax, legal and accounting obligations.
2. Fees
2.1 You will pay the fees and any applicable third party expenses set out in each Statement of Work (“Fees”).
2.2 Payment of Fees is required within 7 days of RBE providing you with a tax invoice.
2.3 The Fees are GST exclusive and GST will be an additional inclusion in a tax invoice.
2.4 The Fees are inclusive of, and absorb, any superannuation payments required to be made by RBE in respect of the Services.
2.5 You agree that Part 2-5 of the Taxation Administration Act 1953(Cth) does not apply and you are therefore not required to deduct PAYG withholding payments from the Fees.
3. Intellectual Property
All intellectual property (“IP”) created by RBE for the purpose of, or arising out of, the Services will be owned by RBE. Subject to this clause and payment of Fees, RBE grants you a non-exclusive, non-transferrable (unless otherwise agreed by RBE), perpetual license to use IP created by RBE solely for your own internal business purposes. Your use must comply with RBE's moral rights in IP protected works created by RBE, including identifying RBE as the author/creator of the works, not falsely attributing authorship, and not subjecting the works to any derogatory treatment.
4. Confidentiality
Each party must keep the confidential information of the other party secret, protect and preserve its confidential nature and not use it or disclose it to any other person except with written consent of the other party or to the extent necessary to obtain professional advice, and/or to provide the Services.
RBE will comply with privacy laws and RBE's privacy policy (a copy of which is on RBE's website) in respect of any personal information that RBE may receive from you when providing the Services.
5. Liability
5.1 Regardless of any Services provided by RBE, RBE is not liable to you for any loss or liability (including consequential loss) that you may suffer or incur arising from RBE's non-performance or breach of the Agreement or under statute, tort (including negligence) or in equity or otherwise at law, unless RBE's exclusion of any such liability is prohibited by law.
5.2 However, if RBE's liability cannot be legally excluded, then to the maximum extent permitted by s64 of the Australian Consumer Law, you agree to RBE limiting its liability, at its discretion, to supplying the Services again or the payment of the cost of having the Services supplied again.
5.3 In no circumstances will RBE’s aggregate liability to you, whether arising in contract, tort (including negligence), statute or otherwise at law, shall exceed the fees (excluding any third party expenses) paid by you to RBE.
5.4 You will indemnify RBE and its directors, officers and employees for loss or liability suffered or incurred by any of them as a result of non-performance or breach by you of the Agreement. However, your liability to indemnify will be reduced proportionately to the extent that their loss or liability was caused or contributed to by RBE's negligence or breach of the Agreement.
6. Independent Contractor
RBE is an independent contractor. RBE representatives are not your directors, officers or employees and RBE is not your agent or partner.
7. Ending The Services
7.1 Either party may end the Agreement at any time on 14 days written notice.
7.2 If Services have been rendered by RBE, you must pay RBE for all Services and reasonable costs and expenses incurred up to the date of termination.
7.3 Without limitation to RBE's rights under sub-clauses 7.1 and 7.2, RBE can defer or cease providing the Services whilst there are Fees payable to RBE that are unpaid for more than 7 days beyond the due date for payment.
8. Interest
You agree to pay interest on unpaid tax invoices from the due date. Interest is calculated at 6% above the current cash rate specified by the Reserve Bank of Australia.
9. Payment Security Obligations
9.1 As security for your payment obligations and liability to RBE, each of your directors personally guarantee to RBE the performance of your obligations under these terms and conditions (including the payment of Fees when due), and you and your directors charge in favour of RBE, all of their respective interests (present and future) in any and all of their real property and any other assets, and consent to RBE lodging a caveat noting its interest in any caveatable property. You also agree that, on RBE's request, you will, and will procure that your directors will, execute any other documents and do any other things reasonably necessary or required by RBE to register a mortgage or other security interest over any such real property or other assets.
9.2 RBE may, in its absolute discretion, engage third parties to recover any and all Fees owed but not paid by you under these terms and conditions (“Debt”). In the event that RBE engages such third parties to recover the Debt, RBE will invoice you for all costs associated with the engagement of these third parties and the recovery of the Debt. You will pay such invoice or invoices within 7 days from the date of the invoice.
10. Access To Information Assistance
10.1 You must provide access to all relevant records, information and key personnel and provide RBE with such other assistance as reasonably required by RBE to perform the Services. Failure to do this may result in incorrect advice and/or diminish the value of the Services provided.
10.2 You warrant that, to the best of your knowledge, any information or data that you provide to RBE and on which RBE relies in providing the Services, is accurate and not misleading. RBE does not assume any liability from relying on that information or data.
11. Your Workplace & Insurance
You must maintain a safe workplace and observe all relevant occupational health and safety laws, and you must also maintain public liability and workers compensation insurance in relation to your workplace and business.
12. Governing Law & Jurisdiction
You agree to Victorian law and courts governing this Agreement.