James McNamara Terms of Service
These terms of service are designed to facilitate clear and productive working relationships. These Terms of Service are also available at www.jamesmcnamara.com.au
These terms and conditions form the basis of an agreement (“the/this Agreement”) between The Consultant ABN 32 448 710 528 (“The Consultant/We/Us”) and the client organisation (“the Client/you”). These terms and conditions are deemed to be accepted by the client by virtue of them engaging The Consultant’s services (“the Services/Services”).
Roles and Responsibilities
The Consultant shall:
- perform the Services in accordance with the Agreement;
- exercise due care and skill in the performance of the Services in accordance with the standards of those normally providing such services in their professional pursuits;
- perform the Services in a timely manner to the extent that it is possible and reasonable to do so;
- advise the Client of any circumstances materially affecting the Agreement; and
- advise the Client on the provision and adequacy of information, resources and material necessary to perform the Services.
The Client shall:
- make available, as soon as practicable, the information, resources, material and necessary arrangements required by the Consultant in the performance of its Services to the extent that it is reasonable to do so;
- advise the Consultant, as soon as practicable, of any matter which affects the performance of the Services;
- give its decisions, approvals and support in time for the Services to be performed without delay; and
- independently satisfy itself of the need for the Services.
- Payment Terms.
Payment terms will be clearly laid out in advance in our proposal. In the main these terms will be either ‘up-front payment’ or ‘7 day payment’. Information products purchased from our website(s) are paid COD.
At our discretion interest on overdue payments shall be charged to the Client at the rate of 2% per month accruing monthly.
The Consultant accepts the following methods of payment;
- EFT, Cheque or Cash
- Credit Card (0.9% surcharge applies)
- Assignment Related Expenses
The Consultant will charge at cost or at industry standard for outlays incurred in providing the services including payments to third parties on your behalf. These may include but are not limited to;
- Printing and design
- Travel, mileage and accommodation
- Postage, couriers
- Assignment Related Travel
If travel is required as part of the assignment it is preferred that the client make the arrangements for flights and accommodation.
- Refunds and Cancellations
In-house workshops and conferences. Once booked these cannot be cancelled though they may be transferred to a later day by mutual agreement.
Public workshops and webinars. Cancellation 14 days prior will result in a full refund. Cancellation 7 days prior will result in a 50% refund. Cancellations within 3 days will not receive any refund.
Consulting services can be cancelled with one month’s notice in writing. Unless otherwise stated, refunds do not apply to consulting services.
Information products and educational materials our backed by our guarantee and usually are refundable. The marketing materials for each product (or package) will clearly explain individual refund arrangements.
- Independent Contractor Status
The parties agree that this Agreement creates an independent contractor relationship, not an employment relationship. The Consultant acknowledges and agrees that the client will not provide him with any employee benefits and that income tax withholding is Consultant’s responsibility. In addition, the parties acknowledge that neither party has, or shall be deemed to have, the authority to bind the other party.
- Confidential Information.
The Consultant and the Client agree that during the course of their relationship and at all times thereafter, The Consultant and the Client shall hold in the strictest confidence, and shall not use for either parties’ personal benefit, or disclose, duplicate or communicate to or use for the direct and indirect benefit of any other person, firm, corporation or entity, any Confidential Information without the prior written consent of the other party.
- Intellectual Property and Copyright.
The methodologies, systems and information used by used in the project remain the intellectual property and copyright of each respective business. Each party shall recognise and respect the intellectual property and copyright of each other’s’ businesses.
Training and consulting Clients will provide all reasonable access to resources such as staff, information, telecommunications, internet and other resources as required by The Consultant to perform the Services.
In the unlikely event that a dispute arises that can’t be solved by the parties themselves a qualified independent and mutually agreed third party mediator shall be engaged to help with resolution. The costs associated shall be shared equally between the parties.
The Consultant will make every effort to deliver the highest quality service. The Consultant makes no other warranties, whether written, oral, or implied. In no event shall The Consultant be liable for special or consequential damages, including but not limited to, loss of profits, revenue, data, personnel or clients.
The Consultant will not accept liability for any actions or behaviour of The Client resulting in any loss, damage or expense however incurred. Nor does The Consultant accept any liability resulting from any negligence, dishonesty, misconduct, lack or skill or lack of information on the part of the client, their staff or contractors.
- Force Majeure
Force Majeure includes, without limitation: Acts of God, Industrial Action, war or civil disturbance, Government action or in-action, late or inadequate supply of goods or services by third persons, or other event beyond reasonable control of the parties to the Agreement.
If either party to this Agreement is unable to comply with its obligations as a result of Force Majeure then those obligations are suspended while the Force Majeure is in effect.
Each party shall use its best endeavours to overcome such Force Majeure without being bound to settle any event on unfavourable terms.
This Agreement may be terminated by either party at any time with 30 days notice in writing. It is acknowledged that work undertaken at time of termination will be paid for by the client. It is agreed that the following conditions are grounds for termination:
- the party concludes for any reason that this Agreement should be terminated;
- the party fails to pay money owing under this Agreement, for more than 30 days;
- the party fails to carry out any other provision of this Agreement and does not remedy that failure within 30 days after notice requiring it to be remedied;
- the party convenes a meeting of its creditors or proposes or enters into a scheme of arrangement (except for the purpose of reconstruction or amalgamation) or a composition with any of its creditors;
- an application or order is made to or by a court or a resolution is passed for the winding up of the party or notice of intention to propose such a resolution is given;
- a receiver, or receiver and manager, or other controller (as defined in section 9 of the Corporations Law) is appointed in respect of the party or the whole or any part of its undertaking, property or assets or any steps are taken for the appointment of such a person;
- a person holding a security interest in assets of the party enters into possession of or takes control of any of those assets or takes any steps to enter into possession of or take control of any of those assets;
- the party is taken to have failed to comply with a statutory demand within the meaning of section 459F of the Corporations Law or suspends payment of its debts;
- the party commits an act of bankruptcy or takes advantage of the provisions of the Bankruptcy Act 1966;
- an administrator of the party is appointed under Part 5.3A of the Corporations Law;
- a warranty given by the party in this Agreement is materially incorrect; or
- it becomes unlawful for the party to perform its obligations under this Agreement.
- Ambiguities in Documents
The following order of priority shall be used in resolving ambiguities in the contract documents:
- Letter of acceptance or order from the client;
- Correspondence between the parties by which the terms and conditions contained in other documents included in the Agreement are agreed to be varied;
- The Client Adviser’s offer of services;
- The Client Services Agreement; and
- The Client’s invitation for offer.
Failure or neglect by The Consultant to enforce at any time the provisions hereof shall not be construed nor shall be deemed to be a waiver of The Consultant’s rights hereunder nor in any way affect the validity of the whole or any part of this Agreement nor prejudices The Consultant’s rights to take subsequent action.
- Applicable Law
The Agreement shall be governed by the laws of the State of Queensland and the parties shall submit to the jurisdiction of the Courts of the State of Queensland.