Conditions of Business – First Mutual Pty Ltd
These Terms and Conditions apply from January 1, 2014.
- These terms and conditions apply to the scope of Services provided by First Mutual Pty Ltd ("First Mutual") or it’s associated, parent and/or affiliated Companies ("Other Companies") which expression shall include all its holding company or subsidiaries or companies which are deemed related to First Mutual.
These terms and conditions shall prevail over any other either express or implied by statute or otherwise.
First Mutual reserves the right, at its discretion, not to accept any assignment or any project whatsoever from any Client or prospective Client where this may lead to a conflict of interest or otherwise jeopardise the good name and reputation of First Mutual.
- The specific services to be supplied are set out in First Mutual’s Proposals, Quotations or Estimates.
- First Mutual reserves the right to determine which of its staff or associates work on an assignment, and for what period of time, unless specified otherwise.
Fees and Expenses
- The fees applicable to an assignment are as specified in the appropriate Proposal, Quotation or Estimate which shall be read together with these terms and conditions and shall be deemed to form part of any agreement for the provision of such services.
- Your acceptance of the Proposal shall be deemed to include your acceptance of these terms and conditions.
- Other extraordinary expenses (defined as any single item exceeding A$50 or its equivalent in an agreed currency) specifically incurred in carrying out the project will also be reimbursed by the Client.
Where First Mutual associates are required to stay overnight at a location the Accommodation is required to be at least 4 stars, and meals will need to be provided.
- Where First Mutual associates are required to undertake Air Travel it shall at least be Business class where such travel exceeds 2 hours duration.
Payment of Invoices
- An initial invoice will be submitted on agreeing the project deliverables. Subsequent invoices will be submitted and become due at the end of each month during the currency of the project.
- It is preferred that invoices are paid by a valid credit card.
- A late payment charge of 2% per month compounded will be applied to amounts outstanding 7 days after the date of the invoice.
Termination and Cancellation
- In the event of the Client or First Mutual being dissatisfied with any part of the assignment during the period of the assignment, both parties undertake to use all reasonable efforts to rectify the situation to ensure a satisfactory outcome for both parties.
- The Client has the right to terminate the assignment or project upon giving reasonable written prior notice, which shall not be less than 30 days.
- In such a case the Client will be liable for charges incurred on its behalf through to the date of termination, or through to some other date as shall be mutually agreed in writing.
- In certain circumstances where the Client terminates the assignment or project, liquidated damages or compensation may be payable.
- First Mutual reserves the right to withdraw from any assignment, project or training where it becomes apparent to First Mutual that to serve the Client, First Mutual is likely to be subject to circumstances or conditions which may in First Mutual's opinion impair or adversely affect the integrity, objectivity or independence or otherwise of First Mutual or any of its Other Companies or put First Mutual or any of its Other Companies in a position of conflict or prejudice. Under such circumstances any amounts paid in advance by the Client for work which has not been carried out by First Mutual will be refunded to the Client. Such withdrawal will be effected by written notice to the Client.
Data & Confidentiality
- The Client undertakes to provide First Mutual with all data it reasonably requires in an acceptable format to First Mutual.
- First Mutual will treat as confidential all information concerning the Client's activities and affairs that is gathered during any assignment, project or delivery of any training. First Mutual agrees to hold such information in strict confidence, and not disclose it to others without the Client's express permission or until the information is otherwise released by the Client or already in the public domain.
- First Mutual serves various persons (both corporate and incorporate) in the Financial Services sector and therefore no guarantee can be given that competing Clients will not be served and First Mutual specifically reserves the right to do so. However, First Mutual will use its best endeavours to identify particular areas of vital interests of its Clients which are in conflict and will inform affected Clients before First Mutual accepts a particular assignment or project.
Rights to Intellectual Property
- Commissioning First Mutual to carry out any assignment or project shall not confer upon the Client any rights to intellectual property including copyrights, design copyrights, patents, trade marks, designs, any alterations, additions or improvements to same or any applications for registration, any moral rights or business names unless specifically agreed.
- Unless otherwise specifically agreed the rights to all intellectual property developed by First Mutual shall be retained by First Mutual. The payment of the agreed fixed fee by the Client pursuant to the Proposal merely allows the Client a licence to use material developed by First Mutual for that Client.
- First Mutual may at its sole discretion agree to a formal assignment of intellectual property rights in certain circumstances, subject to such terms as may be agreed by the parties.
Recruitment of Staff
- First Mutual undertakes not to recruit any employees of the Client during the currency of the project, or for a period of 12 months after the completion of the project without the consent in writing of the Client.
- The Client agrees and undertakes not to recruit or employ or otherwise use the services of any employees, associates or contractors of First Mutual during the currency of the project, or for a period of 12 months after the completion of the project, without the consent in writing of First Mutual.
- First Mutual reserves the right to vary these terms and conditions subject to 30 days prior written notice being given to the Client.
- The Australian courts shall have non-exclusive jurisdiction to determine any dispute and these terms and conditions shall be construed in accordance with Australian law.
- First Mutual and the Client hereby irrevocably submit to the jurisdiction of Victoria’s courts.
- The agreement constituted by the Proposal, these terms and conditions and your acceptances thereof and all other documents expressly stated and signed by both parties as constituting a part of the agreement in connection with the Proposal (the "Agreement") shall not be assigned or transferred by the Client without the prior written consent of First Mutual.
- First Mutual shall be entitled to assign, transfer or sub-contract its obligations hereunder to any of its Other Companies by written notice to the Client.
Supervening Illegality and Severance
- Any provision of these terms and conditions or the Agreement which is held invalid or unenforceable in any jurisdiction shall be ineffective to the extent of such invalidity or unenforceability without invalidating or rendering unenforceable the remaining provisions hereof, and any such invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provisions in any other jurisdiction.
- Each undertaking in these terms and conditions or the Agreement shall be construed as a separate undertaking and if one or more of the undertakings contained in these terms and conditions or the Agreement is found to be unenforceable or in any way an unreasonable restraint of trade the remaining undertakings shall continue to bind the parties.
All notices and other communications in these terms and conditions or the Agreement shall be in writing and shall be deemed to have been duly given: when delivered, if delivered by messenger during normal business hours of the recipient; when sent, if transmitted by telex or facsimile transmission (receipt confirmed) during normal business hours of recipient, or on the third business day following mailing, if mailed by certified or registered mail, postage prepaid, in each case addressed as follows:
- To First Mutual at its registered office for the attention of the Executive Director; or
- To the Client at its registered office or last known place of business; and/or
- Such other address for the service of notices and communications which either party may have notified to the other in writing.
Withholding Taxes and Goods and Services Taxes
- All Goods and Services Taxes and any other similar valued added taxes or levies payable on any of our fees or expenses shall be borne by the Client.
- All sums payable by the Client under the Agreement shall be paid free of any restriction or condition, free and clear of and (except to the extent required by law) without any deduction or withholding for or on account of any tax and without deduction of withholding on account of any other amount, whether by way of set-off, counterclaim or otherwise.
- It is specifically noted that First Mutual’s professional fees are quoted net of any and all withholding taxes, value added taxes, levies, service taxes or other adjustments, deductions or withholdings.
- These Terms and Conditions are Confidential. As such they may only (and must) be disclosed to those who need to know them for the direct performance of their duties.