Terms & Conditions

TERMS AND CONDITIONS

These Terms and Conditions apply in respect of the services set out in the Proposal, Agreement, Program Document, Appraisal (“Services”) to be performed by IWCG ABN 45272091820 (“IWCG” or “we” or “us”), for the client named in the IWCG Proposal, Proposal, Agreement, Program Document, Appraisal (“Proposal”) (“Client” or “you”).

IT IS AGREED AS FOLLOWS:

1.        Authorisation

The Client confirms that it has obtained and or has all the necessary authorisation to enter and perform this contract (“Contract”).

2.      Interpretation

Any reference in this Agreement to the singular includes the plural, to any gender includes all genders, to persons includes all bodies and associations both incorporated and unincorporated, to any legislation or regulations includes all amending and succeeding legislation and regulation, to clauses and schedules to clauses and schedules of this Agreement and paragraph headings are for reference purposes only.

3.        Entire Agreement

1. This Agreement is the entire agreement between the parties relating to the Services and supersedes all previous written or oral representations agreements, negotiations, proposals, and understandings between the parties.
   1. No oral explanation or information provided by any party to another party will affect the meaning or interpretation of this Agreement or constitute any collateral agreement, warranty or understanding of the parties.
   1. This Agreement may only be varied by written amendment signed by both parties.
   1. No party to this Agreement may rely on the words or conduct of any other party as a waiver of any right unless the waiver is in writing and signed by the party granting the waiver.

4.        Appointment

1. The Client appoints the Company to provide the Services set out in the Services.
2. Unless they are varied by agreement in writing, the provisions of this Agreement, including the Services, will apply to any other matters/projects for which the Company may be appointed.

5.        Engaging Ian Wheeler Consultancy Group

Upon confirmation by the Client via email and or in execution of these Terms and Conditions of engaging IWCG,

1. The Company will provide to the Client the Company’s Terms and Conditions (“Standard Terms”) and a Proposal setting out the professional services to be provided including the agreed scope of work (the Services), any representative who may or will be involved and the relevant fees for completing the agreed work (the Agreement)).
2. The Proposal and these Terms and Conditions will constitute the Agreement between the Company and the Client to provide the Services.
3. The Terms and Conditions are accepted by the Client
4. The Client will in accepting the Terms and Conditions provide to the Company to confirm the engagement and provision of Services.

6.        Ian Wheeler Consultancy Group Obligations

1. The Company will provide to the Client the Services described in the Proposal, unless the Agreement is terminated as prescribed by these Terms and Conditions.
2. In providing the Services, The Company and its representatives will exercise the degree of skill, care and diligence normally exercised by professionals in similar circumstances.

7.        Intention

Both the Company and the Client agree that the contents and meaning of this Agreement are understood and that the Agreement has been accepted with good spirit and intention and without any duress and with adequate consideration by natural person(s) whom are of legal majority and capacity.

8.        Compliance with Laws

1. In the performance of its obligations hereunder, the Client agrees to comply with all applicable law’s rules and regulations, and shall conduct its business in accordance with sound and generally accepted business practices.
2. Without limiting the application of this clause, the Client agrees that it shall comply with, and will take no action causing the Company to be penalised under or in violation of, all applicable law, including but not limited to any law prohibiting corruption.

9.        Client Obligations

1. As soon as practicable following the engagement of the Company by the Client, the Client will provide to the Company a briefing and all information, documents, and other particulars as the Company may reasonably require to provide the Services.

• Whilst the Company is providing the Services, the Client must ensure:
• The Company has current contact details including mailing address, telephone number and email address.
• Prompt response to communications seeking further instructions or additional information.
• All rendered invoices are paid in full within seven (7) days unless otherwise agreed.
• The Client acknowledges that the Services are provided on a non-exclusive basis and the Company reserves the right without limitation to enter into other agreements.

10.      Provision of Services

1. No guarantee is made by the Company that changes will not occur in relation to the provision of the Services.
2. The Client accepts that each provision of services is different from any previous provision of Services including the service parameters, perspectives and outcomes, the provision of Service is adaptable, changes occur, may be halted or other in the provision of Service which includes but is not limited to:
3. Dependent on the information as provided by the Client to the Company in a timely and satisfactory manner, and,
4. Dependent on a 3^rd party agency and organisations that are not within the control or jurisdiction of the Company, and,
5. The Company will in its best endeavours provide Services in a manner which is timely and satisfactory, and,
6. The wellbeing or Injury or illness of the Companies employees or representatives, and,
7. Occupational Health and Safety risks or hazards, and,
8. Weather or conditions of risk or hazards, and,
9. Compliance with laws, acts and regulations, and,
10. Factors and Influences beyond the Company’s control and any other circumstances.
11. Unless both parties agree otherwise in writing, dates in any timetable set out in the Proposal or proposal or otherwise advised are intended for planning and estimating purposes only and are not contractually binding. The timely completion of the Services requires your co-operation in the provision of information and explanations relevant to the Services. Estimates of time for completion of the Services are given on the assumption that we receive this co-operation. We may charge additional fees and expenses which result from delays in providing this co-operation.
12. The scope of the Services is limited to the work specified in our proposal or Proposal.
13. Unless expressly stated otherwise in the Proposal or any Proposal the Services are not legal services and do not constitute legal advice. The Client is to seek their own independent legal advice. Either of us may request changes to the Services but no changes take effect unless agreed in writing.
14. Our work will be based on the documentation and information provided to, or obtained by, us. We rely on you bringing to our attention any changes in the documentation and information as originally presented, as it may affect our advice. You will ensure that documentation and information supplied by you or on your behalf, to the best of your knowledge and belief, is not false or misleading and does not omit material particulars. Unless otherwise stated in our Proposal or proposal, we will not verify the accuracy and completeness of such documentation or information.

• You acknowledge that information made available by you or by others on your behalf, to partners or staff of IWCG who are not engaged in the performance of the Services or information relating to you, which is otherwise known by them, shall not be deemed to have been made available to the individuals within IWCG who are engaged in the provision of the Services.
• The Services will be provided solely for your benefit and use unless provided otherwise in the Proposal or proposal. Except as required by law, you must not provide any documentation or deliverables in respect of the Services to any third party (including without limitation, the filing of information containing or referring to any of our reports with regulators or the inclusion of our reports in any public document) without our written consent. We accept no liability or responsibility to any third party in respect of the Services.
• Subcontractors and third parties; We reserve the right to employ subcontractors, and any reference to our staff includes subcontractor staff. Subject to any contrary provision in our Proposal we will remain liable to you for any of the Services that are provided by our subcontractors.

11.      Consultancy Fees

Depending on the nature of the Services to be provided, the Consultancy Fees will be calculated on fixed fee, time-cost, retainer, or a combination.

Our fees for the Services will be charged on the basis set out in our Proposal or proposal. Where applicable, Goods and Services tax (“GST”) at the prevailing rate will be added to and forms part of our fees.

The applicable method will be specified in the Schedule. If no method is specified in the Schedule, the consultancy fees will be calculated on a time-cost basis.

Fixed-Fee Consultancy Fees,

The fixed fee for the Services to be provided by IWCG will be specified in the Schedule.

The scope of work falling within the fixed fee will be specified in the Schedule.

Work falling outside the scope of the fixed-fee will be charged on a time-cost basis (pursuant to clause 11.2).

1. Time-Cost Consultancy Fees are calculated on a time-cost basis,

The hourly rates for work to be performed by the Company and any IWCG Consultants will be specified in the Schedule.

Time will be charged in units of ten (10) minutes, rounded up to the next full ten (10) minutes if the time spent is not a multiple of ten minutes.

Where required to travel either to and from a client’s premises or to and from any other location as directed by the client, time will be charged at 50% the applicable hourly rate.

Administrative or secretarial support is engaged to assist in the provision of the Services will be charged at a rate of $75.00 per hour exclusive of GST or pro rata for part thereof.

1. Retainer Consultancy Fees,

The retainer fee and allocated consulting time pursuant to the retainer will be specified in the Schedule.

The scope of a retainer generally includes phone advice and short form written advice including email correspondence.

IWCG manages retainers under the principle of fair play where it uses its best endeavours to ensure, where reasonable, work falls within the scope of a retainer.

Whether work falls within the scope of a retainer will be at the discretion of IWCG however IWCG will liaise with the Client where work does not or is unlikely to fall within the scope of a retainer.

Work requiring substantial time, lengthy research or projects will not fall within the scope of a retainer.

Work falling outside the scope of the retainer or in excess of allocated consulting time pursuant to a retainer arrangement will be charged on a discounted time-cost basis as specified in the Schedule.

Retainers are not for a fixed term and may be renegotiated or terminated by agreement between IWCG and the Client unless otherwise agreed.

We revise our fee scale per contractual engagement or at least  quarterly. Rates quoted to you remain in force for 30 days unless otherwise specified , as appropriate, and we may increase our fees for any work performed

12.      Reimbursable Expenses

1. Applicable to all Consultancy Fees Clauses

• In addition to the Consultancy Fees, rendered invoices will include Reimbursable Expenses where relevant.

13.      GST

1. The Consultancy Fees and Reimbursable Expenses payable by the Client in relation to the provision of the Services are exclusive of GST.
2. Where the Consultancy Fees and Reimbursable Expenses are taxable, the Client will be responsible for the payment of GST to IWCG as specified in the relevant IWCG Tax Invoice.
3. Currently Goods and Services Tax (“GST”) is not included within the fee structure, where applicable or where the GST structure relating to IWCG changes, GST will be charged to the Client at the prevailing rate, added to and forms part of our fees.

14.      Billing Procedure and Payment Terms

1. Fixed fee Invoicing

The Company will issue an invoice for fixed fees agreed at,

Payment Schedule 1

1. 50% of the agreed fee payment within one (1) week of executing this Agreement.
2. The remaining 50% due withing one (1) week on completion of the Services
3. Unless otherwise agreed within the Schedule

Payment Schedule 2

Where the fixed fees may include a defined time period

• A twice monthly basis (1st and 15th days of each month)
• Unless otherwise agreed within the Schedule
  
  Time-Cost and Retainer Basis Fees

The Company will issue invoices for the Services performed on an agreed time frame of either:

1. A weekly basis on the last day of each week, 
2. A twice monthly basis (1st and 15th days of each month)
3. Unless otherwise agreed within the Schedule
4. Payment on Invoice Receipt
5. In consideration of the Services provided by the Company, the Client must make payment of any rendered invoice within seven (7) days of receipt unless otherwise agreed.
6. Each invoice will contain details of the Services performed and any reimbursable expenses including GST.
7. In the event any rendered invoice is not paid in full by the due date, the Company reserves the right to charge interest at the rate of 2.5% accumulated daily on outstanding balances until payment is made in full.

15.      Intellectual Property

1. The Client acknowledges the Company’s title to and interest in the intellectual property rights in the material including but not limited to documents, policies, forecasts, and reports created for and provided to the Client through the course of the Agreement and the provision of Services.
2. Material provided to the Client through the course of the Agreement and the provision of Services is for the Client’s use only. Any reproduction and use of such material outside of its intended purpose is not permitted without written consent from the Company.
3. Unless otherwise specified in the Proposal or proposal, intellectual property rights in all documentation, systems, materials, methodologies, and processes brought to the engagement by IWCG or created in the course of the engagement by IWCG shall remain and be vested in IWCG.
4. IWCG will not be restricted by the Contract from developing and using in the future any techniques, methodologies, ideas, concepts, information, or general know-how.
5. You must not use the IWCG name or logo on any website or in any public statement, (including filing all or part of a report with a regulator or including all or part of a report in any public document) without obtaining our prior written consent.
6. The working papers for this engagement, including electronic documents and files, are our property and constitute Confidential Information.
7. Use of software, we may use or develop software, including spreadsheets, databases, and other electronic tools (“tools”) in providing the Services. If we provide these tools to you, you acknowledge that (except where these tools are a specific deliverable under our Contract with you) they are not your property, were developed for our purposes and without consideration of any purpose for which you might use them, are made available on an “as is” basis for your use only and must not be distributed to or shared with any third party. To the full extent permitted by law, we make no representations or warranties as to the sufficiency or appropriateness of the tools for any purpose for which you or a third party may use them.

16.      Confidentiality

1. The Company will keep in the strictest confidence all confidential information provided by the Client through the course of the engagement and will not disclose to any person any confidential information without the consent of the Client.
2. The Company will not use the Client’s name in promotional material or similar without the consent of the Client.

17.      Termination or Default of the Agreement

1. The Client may terminate the Agreement at any time on the provision of thirty (30) days’ notice in writing.
2. The Company may in its sole and absolute discretion and without prejudice to any other right or remedy it may have, immediately terminate this Agreement by notice in writing to the Client.
3. The Company may terminate this Agreement without cause by providing fourteen (14) days’ notice in writing to the Client.
4. The Company may terminate the Agreement if:
5. The Client
6. is in breach or default of any of the terms of this Agreement and fails to rectify that breach or default (if capable of remedy) within 10 (ten) Days after being requested to so in writing by The Company.
7. has a liquidator, provisional liquidator, receiver, receiver and manager or official manager appointed to it.
8. has an administrator appointed to it pursuant to the Corporations Act 2001.
9. resolves to wind up or is subject to an order to wind up; or enters into a scheme of arrangement with its creditors.
10. allows or fails to pay any rendered invoices by the due date or to remain unpaid.
11. fails to provide adequate instructions within a reasonable timeframe.
12. gives instructions that are deliberately false or intentionally misleading.
13. has, in the opinion of the company on reasonable grounds, a conflict of interest.
14. gives, submits or provides any other reasonable basis.
15. In the event either party terminates the Agreement, the Client will be required to pay for professional fees and reimbursable expenses up to the date the Agreement is terminated.
16. Notwithstanding this clause, The Company may terminate this Agreement immediately if the Client is in breach of any clause of this agreement without compensation to the Client.
17. This Agreement ends when the time for providing the Services expires in accordance with any Expiry Date or earlier if terminated in accordance with this clause.
18. In the event that the Client has breached the Agreement, the Company may:
19. terminate this Agreement if the Client has not remedied the breach within the time specified in a written notice from the Company; or
20. remedy the breach itself, in which case, the Client will be charged for all costs and expenses incurred by the Company.
21. Notwithstanding this clause, the Company may terminate this Agreement immediately if:
22. in the Company’s reasonable opinion, the Client or any of its employees, agents or sub-consultants are guilty of any fraud, dishonesty, or any other misconduct or if the Client acts without due diligence and skill.
23. the Client becomes bankrupt or enters into any form of administration or liquidation; or
24. the Client is or becomes continually or significantly absent or neglectful of its duties,

without compensation in any form being required to be paid to the Client.

1. At the expiry or earlier termination of this Agreement (whichever is applicable), the Client must immediately provide to the Company all materials which the Company has provided to the Client, its employees, agents, or sub-consultants and all the Intellectual Property, and all copies of these.
2. Termination of the Agreement will not prejudice any rights or remedies already accrued to any party under, or in respect of any breach of this Agreement.

18.      Insurance

The Client must at its own cost and expense from the date of this Agreement and at all times during the term in providing the Services, effect and keep current policies of insurance for:

1. Public and products liability with a limit not less than 20 million Australian dollars per claim.
   1. Any other insurance requested by the Company.

19.      Liability and Indemnity

1. The Client indemnifies the Company and all representatives of each of them against any direct or indirect losses including consequential loss, costs or expenses. damage (including legal fees on an indemnity basis) arising out of or in connection or relating to any claims, demands or actions which may be brought against the Client or incurred by The Client as a direct or indirect result of the provision of and or negligent provision of Services in respect of any breach or default in performance of this Agreement by the Company,  or arising out of or in connection with any of the following:
2. Injuries or death to any persons, or damage to any property, howsoever caused by the indemnifying party or its personnel; and,
3. Any claim, demand, suit, action or proceeding brought or threatened against the indemnified parties or any of their employees, subsidiaries, officers, volunteers, servants, and agents in respect of or in connection with This Agreement; and,
4. The indemnifying party or its personnel breaching this Agreement; and,
5. Any negligence, misconduct or wilful, reckless, malicious, or fraudulent acts or omissions by the indemnifying party
6. All forecasts, projections, recommendations, research, and advice are provided by IWCG in good faith and based on the information available through the course of providing the Services.
7. IWCG, its contractors or agents will not, except as may be required by law, be liable for any loss, damage or other consequences arising through the provision of the Services.
8. Without limitations, no responsibility is accepted by IWCG for any actions of any IWCG employee, consultant and or subcontractors and or action undertaken by IWCG employees.
9. IWCG does not accept any liability for any actions, comments or other that might arise from the use of IWCG.

20.      Dispute Resolution

1. A party must not start court proceedings (except proceedings seeking interlocutory relief) in respect of a dispute arising out of this Agreement (“Dispute”) unless it has complied with this clause.
2. A party claiming that a Dispute has arisen must notify the other party to the Dispute giving details of the Dispute; and
3. During the 14-day period after a notice is given under this clause(or longer period agreed in writing by the parties to the Dispute), each party must use its bona fide efforts to resolve the Dispute through the involvement of (where applicable) the respective managing directors or their nominee.
4. If any controversy or dispute relating to this Agreement (“Dispute”) arises, either party may give a notice to the other party specifying:
5. the Dispute.
6. particulars of the party’s reason for being dissatisfied; and
7. the position that the party believes is correct,

(“Dispute Notice”).

If a Dispute Notice is issued pursuant to clause 20, the parties undertake in good faith to use all reasonable endeavours to settle the Dispute expeditiously.

Any Dispute must be the subject of discussions between the chief executive officers of each of the parties or their nominees (“CEO’s”) before any party initiates any form of litigation relating to the Dispute (other than for urgent interlocutory relief).

The CEO’s must meet within 7 Days of receipt of the Dispute Notice and attempt in good faith to resolve the Dispute.

If a Dispute remains unresolved for 14 Days after the CEO’s have met (or should have met), the Dispute is to be referred to mediation under the current rules for mediation used by the Australian Commercial Disputes Centre.  Unless otherwise agreed by the parties the mediation is to take place in Melbourne, Victoria.

21.      Force Majeure

Either party shall not be liable for any delay in or failure of performance if the failure or delay arises from causes beyond its reasonable control including an act of God, strike, lock-out or other industrial disturbance or labour difficulty (other than any strike, lockout or industrial disturbance or labour difficulty pertaining solely or substantially to the Client), act of public enemy, war, blockade, revolution, riot, insurrection, civil commotion, lightning, storm, flood, fire, earthquake, explosion, any action, inaction, demand, order, restraint, restriction, requirement, prevention, frustration or hindrance by or of any government or government authority, embargoes, unavailability of essential equipment, chemicals or other material, unavoidable accident, lack of transportation and any other cause whether specifically referred to above or otherwise which is not within its reasonable control

22.     General

1. Relationship with other clients – We provide services to other clients, some of whom may be in competition with you or have interests which conflict with your own. We will not be prevented or restricted by virtue of our relationship with you under this Contract from providing services to other clients.
2. Conflicting terms – In the event of any conflict between our Proposal and these Terms and Conditions or our proposal, the Proposal will take precedence.
3. Guarantee: In the event of the Client being a corporate entity, then the authorised representative of that corporate entity hereby personally guarantees the performance by the Client of all its obligations in terms of this agreement.
4. Electronic presentation and filing of information, if the Services involve statutory audit or statutory review work, and you intend to electronically present a financial report and our audit/review report on your web site, you are responsible for the security and controls over the information on the web site to maintain the integrity of the data presented.
5. 1. Pandemic Requirements: IWCG will comply with all advice, regulations, restrictions, and guidelines issued by the Australian Government Department of Health in response to any pandemic including Covid-19, or any other similar advice, regulations, restrictions, and guidelines issued by government health bodies in any other territory or jurisdiction in which IWCG will operate. The Client must adhere and follow all advice, regulations, restrictions, and guidelines issued by the Australian Government Department of Health in response to a pandemic including Covid-19, or any other similar advice, regulations, restrictions, and guidelines issued by government health bodies

• Electronic communications, we may communicate with you electronically. Electronically transmitted information cannot be guaranteed to be secure or virus or error free and consequently such information could be intercepted, corrupted, lost, destroyed, arrive late or incomplete or otherwise be adversely affected or unsafe to use. We will use commercially reasonable procedures to check for the then most commonly known viruses before sending information electronically, but we will not be liable to you in respect of any error, omission or loss of confidentiality arising from or in connection with the electronic communication of information to you. You remain responsible for protecting your own systems and interests in relation to electronic communications. If you do not accept these risks, you should notify us in writing that you do not want us to communicate electronically with you.

23.      Waiver

The Company’s failure or delay to exercise a right, power or remedy does not operate as a waiver of that right, power or remedy. The exercise or partial exercise by the Company of a right, power or remedy does not prevent either party its exercise in the future or the exercise of any other right, power or remedy. Any waiver, power or remedy of this Agreement must be in writing signed by the party granting the waiver and is effective only to the extent specifically set out in that waiver. 

24.      Continuing Obligations

The completion, expiration or termination of this Agreement or transaction does not operate to terminate any of the continuing obligations under this Agreement and they will remain in full force and effect and binding on the party concerned.

25.      Company Contacts

A notice, approval, consent, or other communication (“Notice”) from one party to another party must be in writing and signed by a person duly authorised by the party giving the Notice.

26.      Laws to Apply.

This Agreement shall be governed by and executed in accordance with the laws of the State of Victoria and the parties hereby unconditionally submit to the jurisdiction of that State.

27.      Definitions

Agreement means this agreement and the Schedule.

Cancellation Fee means any amount payable by the Client in cancelling the Services and or this agreement, any outstanding invoices or other.

Client means the Client as defined within the Schedule:

Commencement Date meansthe date specified in the Schedule Acceptance Point 5 as executed by the client of this Agreement.

Company means Ian Wheeler Consultancy Group (IWCG):

Confidential Information means:

• All material, information and know-how concerning the Company.
• The business affairs, dealings and correspondence between the Company and the Client of a confidential nature or marked as ‘confidential’ by the Company.
• All process, methods, procedures, marketing strategies, trade secrets, market research, information concerning customers, product development, know-how, technology, computer programs, models, databases and modifications to such things and all other information which, by its nature, places or potentially places the Company and its related bodies corporate at an advantage over their present and future business competitors.
• Any information that would legally be considered secret or confidential information of the Company and/or its related bodies corporate, excluding:
  • information which is or becomes generally available to the public other than by disclosure in breach of the terms of this Agreement; or
  • information which is disclosed by order of law or by the requirements of any stock exchange or is required in order to obtain any necessary approval or consent of any government or governmental body, authority or agency having authority over Company the or its related bodies corporate or disclosed in judicial, arbitral or administrative proceedings,

provided the Client has used its best efforts and has afforded the Company the reasonable opportunity to obtain protective orders or other assurances satisfactory to the Company of confidential treatment required to be so disclosed.

Goods and Services Tax (GST) means any tax in the nature of a tax on, or on the supply of goods, real property, services or any other thing levied, imposed or assessed by the Commonwealth of Australia or any State or Territory of Australia or municipal authority which may operate at any time during the Term.

GST has the meaning it does in section 195-1 of the GST Act.

GST Act means the A New Tax System (Goods and Services Tax) Act 1999 as amended, superseded or replaced from time to time.

Intellectual Property means all images, pictures, colours, trademarks, drawings, maps, plans, ideas, recipes, concepts, and other exclusively learned knowledge or information or otherwise obtained during the course of this Agreement in the process of providing the Services.

IWCG means Ian Wheeler Consultancy Group:

Location means the areas, location, office or other designated / provided by the Client:

Nationally means the Commonwealth of Australia or any State or Territory of Australia and all locations contained within the boundaries of Australia.

Party means a person or entity who execute this Agreement.

Parties means all persons or entities who execute this Agreement.

Recipient has the meaning ascribed to this term in the GST Act.

Schedule means the schedule annexed to and forming part of this Document:

Services means the provision of the agreed service as per the Proposal: and

Tax Invoice has the meaning ascribed to this term in the GST Act.

Term means the period referred to in the Schedule regarding the Days, Weeks, Months and or Years of the Agreement including the Commencement and any Expiry Dates and Options for Extensio