Letter of Engagement and Terms of Service
These standard terms and conditions (Terms and Conditions) apply to all services (Services) that we, Cirrius Pty Limited (ABN 47 666 363 962) (Cirrius) perform for you (the Client), except to the extent that the parties agree to other written terms.
1. Cirrius Responsibilities
- Cirrius will:
- use all reasonable commercial efforts to complete the Services within the agreed time;
- perform the Services with professional skill and care, acknowledging that the quality of Cirrius’ Services depends on timely and accurate input from the Client;
- provide the personnel or contractors required to perform the Services, unless otherwise agreed.
- Cirrius reserves the right to substitute personnel or contractors as necessary due to unavailability or additional requirements for completing the Services, and will consult with the Client regarding any new or additional personnel.
- Cirrius does not warrant any specific outcome from the Services performed, particularly where the outcome depends on input or cooperation from the Client.
- The Services may be modified as necessary to achieve the intended results, subject to prior Client approval.
2. Client Responsibilities
The Client agrees to provide timely and accurate instructions and fulfill each of the following requirements to enable Cirrius to perform the Services effectively:
- Information: The Client warrants that all information provided to Cirrius is accurate, current, and complete, and acknowledges that Cirrius may rely on this information without independent verification.
- Access: Provide access to relevant files, records, IT systems, premises, and personnel as needed for completing the Services.
- Resources: Allocate adequate resources to ensure timely approvals, feedback, and sign-off on all deliverables, including reports and program materials.
The Client acknowledges that delays or inaccuracies in fulfilling these responsibilities may lead to delays or additional charges.
3. Changes and Delays
- Requests for changes to the Services (Change) must be submitted in writing.
- Upon receiving a Change request, Cirrius will prepare a proposed variation (Variation) for Client review. The Client must respond to the proposed Variation within 10 days. Cirrius reserves the right not to implement any Change until a Variation is agreed upon in writing by both parties. If the Client does not respond within the specified timeframe, the Variation will be deemed accepted.
- If delays arise due to circumstances beyond Cirrius’s control, including Client delays or failures to meet responsibilities, Cirrius will not be liable for such delays, and additional fees may apply.
4. Fees and Expenses
- The Client must pay Cirrius’s fees (Fees) and disbursements within 14 days of the date on a rendered invoice (Due Date). Interest of the Reserve Bank of Australia base rate plus 2% may apply to overdue invoices.
- Cirrius reserves the right to adjust quoted fees or substitute personnel if:
- the Client does not proceed within 30 days of agreeing to the project scope and price; or
- the engagement extends beyond 12 months from the start date of these Terms and Conditions.
- If an invoice is disputed, the Client must notify Cirrius within 14 days of receipt, paying any undisputed amounts on time.
- Unless the invoice is disputed, Cirrius reserves the right to suspend Services until all outstanding invoices are paid.
5. Confidentiality and Data Security
5.1 Both parties agree to take all reasonable steps to protect the confidentiality of proprietary information exchanged in relation to the Services. This includes, where necessary, confidentiality undertakings from third parties.
5.2 Each party agrees to comply with relevant data protection laws, including the Privacy Act 1988 (Cth), when handling any personal data received from the other party.
6. Intellectual Property Rights
6.1 Nothing in these Terms and Conditions affects the pre-existing Intellectual Property Rights of either party.
6.2 All rights, title, and interest in any Intellectual Property Rights created by Cirrius during or related to these Services will immediately vest with Cirrius upon creation.
6.3 Cirrius grants the Client a non-exclusive, non-transferable, perpetual, royalty-free license to use any Intellectual Property Rights created under these Terms solely for the Client’s internal business purposes upon full payment of all fees.
6.4 Cirrius retains ownership of its knowledge, experience, and know-how developed during the Services, and reserves the right to use any ideas, concepts, or techniques developed or disclosed under these Terms for other purposes.
7. Indemnity for Third-Party Claims
7.1 The Client agrees to indemnify Cirrius against all losses arising from third-party claims related to the Client’s actions in connection with these Terms.
7.2 Cirrius will promptly notify the Client of any third-party claim for which it seeks indemnification.
8. Limitation of Liability
8.1 This clause overrides all other clauses in these Terms.
8.2 Neither party limits or excludes its liability for death or personal injury caused by its negligence.
8.3 Liability for loss or damage to tangible property caused by negligence will be capped at one million Australian dollars (AUD$1,000,000).
8.4 Except as provided in clauses 7.1, 8.2, and 8.3, the maximum cumulative liability of either party for any claims related to these Terms will not exceed the total fees paid by the Client to Cirrius (excluding GST, expenses, and pass-through costs).
8.5 Neither party will be liable for indirect, special, punitive, or consequential damages, including lost profits or revenue, data loss, or business opportunities, even if such damages were foreseeable.
8.6 Liability will be reduced proportionately to the extent of any breach or negligence of the other party.
8.7 All implied conditions, representations, and warranties are excluded to the fullest extent permitted by law. If a condition or warranty is implied, Cirrius’s liability will be limited to re-performance of the Service or refund of fees.
9. Termination
9.1 Either party may terminate the agreement by written notice if:
1. the other party commits a material breach and fails to remedy it within 45 days of notice, or
2. the other party becomes insolvent.
9.2 Cirrius may also terminate if the Client fails to make payment by the Due Date.
9.3 Upon termination, all accrued rights and obligations of each party shall survive.
10. Governing Law and Jurisdiction
These Terms are governed by the laws of New South Wales. Both parties submit to the non-exclusive jurisdiction of the courts of New South Wales.
11. Severability and Survival
11.1 If any provision is deemed invalid, the remainder of these Terms will remain in force. The invalid provision will be replaced with a valid one with a similar effect.
11.2 Provisions relating to confidentiality, intellectual property, indemnity, limitation of liability, and dispute resolution survive termination.
12. Non-Solicitation
The Client and Cirrius agree not to solicit or hire each other’s staff or contractors involved in providing the Services during and for six months following completion of the Services.
13. Relationship of the Parties
Cirrius provides Services as an independent contractor. Nothing in these Terms creates a partnership or joint venture.
14. Escalation and Dispute Resolution
14.1 In case of dispute, the matter shall first be referred to the Project Directors. If unresolved, it shall escalate to executive management within two weeks.
14.2 If still unresolved, the dispute shall proceed to mediation per the ACDC Mediation Guidelines. If unresolved within 60 days, mediation will terminate, and either party may pursue further legal recourse.
15. General Provisions
15.1 Cirrius may engage affiliates or subcontractors to perform the Services, remaining responsible for all responsibilities.
15.2 These Terms represent the entire agreement between the parties, superseding any prior agreements or representations.
16. Interpretation and Definitions
16.1 Interpretations apply as follows: singular includes plural, references to “includes” mean without limitation, monetary units are Australian dollars, and no rule of construction disadvantages any party as drafter.
16.2 Definitions:
– Insolvent: See Section 16 for specific insolvency events.
– Intellectual Property Rights: Encompasses all rights related to inventions, designs, trade secrets, etc.
– Loss: Includes liabilities, claims, costs, and expenses.
– Party: Refers to both Cirrius and the Client, collectively.
