Terms of Engagement

These terms apply to the consulting services we provide to you under any Statement of Work that refers to them.

In these terms:

• we, us and our means The Digital Compass Pty. Ltd. ACN (to be confirmed) ABN (to be confirmed) of (to be confirmed), trading as The Digital Compass;
• you and your means the client named in the Statement of Work;
• Agreement means a Statement of Work together with these terms;
• Business Day means a day other than a Saturday, Sunday or public holiday in Melbourne, Victoria;
• Confidential Information has the meaning in clause 10.1;
• Deliverables means the reports, documents and other materials we create specifically for you and identify as deliverables in a Statement of Work;
• Fees means the fees set out in a Statement of Work, whether a fixed price or fees for time worked;
• Our Materials means the methods, frameworks, templates, tools, know-how and other materials that we or Our People owned or developed before, or independently of, an engagement, including any improvements to them;
• Our People means our employees and the consultants who work with us to deliver the Services;
• Services means the services described in a Statement of Work; and
• Statement of Work or SOW means a statement of work signed or accepted by both of us that refers to these terms.

Each Statement of Work, together with these terms, forms a separate Agreement.

The Statement of Work sets out the scope, team, dates and price of an engagement. These terms apply to everything else. If a Statement of Work and these terms conflict, these terms prevail unless the Statement of Work expressly says that it overrides a particular clause.

These terms apply instead of any terms in your purchase order, supplier portal, invoice process or other standard terms, even if those terms are presented or accepted as part of an ordering or payment process.

We may update these terms from time to time and publish the current version at thedigitalcompass.com.au/terms. The version that applies to a Statement of Work is the version it refers to or, if it refers to none, the version published on the date it is signed. A later version applies to an existing Statement of Work only if we both agree in writing.

An Agreement starts when we have both signed or accepted the Statement of Work, or when you ask us to start work and we do, whichever happens first.

We will provide the Services in line with the Statement of Work and with the care, skill and diligence expected of a competent professional consultancy.

We will comply with the laws that apply to how we provide the Services, and hold the licences and registrations we need to provide them.

We will work to the dates in the Statement of Work. If a delay is caused by you, by a third party you are responsible for, or by an event under clause 16, the affected dates move by a reasonable period, and any effect on the Fees is dealt with under clause 5.

We deliver the Services through Our People and remain responsible for the Services whichever of Our People performs them.

Where a person is named in a Statement of Work, we will use reasonable efforts to keep that person on the engagement. If they become unavailable because of illness, leave, leaving us or another reason outside our reasonable control, we will talk to you first and then replace them with someone of similar skills and experience at no extra cost to you.

Our advice and recommendations are given in good faith on the information available to us. Decisions about whether and how to act on them are yours. Unless a Statement of Work says otherwise, we do not guarantee any particular business outcome.

We do not resell technology products or services. If we recommend a supplier or product in which we have a commercial interest, we will tell you before you rely on that recommendation.

We may provide services to other organisations, including in your sector. If we become aware of a conflict of interest affecting your engagement, we will tell you promptly and agree with you how it will be managed.

You will:

• (a)give us timely access to the people, information, systems and premises we reasonably need, including as described in the Statement of Work;
• (b)respond to our requests for information within 5 Business Days, unless the Statement of Work says otherwise;
• (c)make the decisions needed for the Services in time for us to meet the dates in the Statement of Work;
• (d)make sure that, as far as you are aware, the information you give us is accurate and complete, and that you have the right to give it to us;
• (e)tell us in writing about any of your policies, site rules and security requirements that we need to follow, and provide a safe working environment when we are at your premises; and
• (f)nominate a contact for the engagement and a person authorised to approve milestones and change requests, and keep us informed of any change to them.

If you do not meet a responsibility under clause 3.1 or the Statement of Work, or an assumption in the Statement of Work proves to be incorrect, and this affects our time, cost or the dates, we will tell you and raise a change request under clause 5. We are not responsible for any delay or failure to the extent it is caused by that event.

Where a Statement of Work includes Deliverables or milestones, we will give each one to your nominated approver for review.

You have 5 Business Days, or any other period stated in the Statement of Work, to accept a Deliverable or milestone, or to tell us in writing, with reasons, how it does not meet the Statement of Work. If you tell us it does not, we will fix it and give it to you again for review.

Each Deliverable includes up to two rounds of changes. Further rounds, and changes that go beyond the scope of the Statement of Work, are handled by change request under clause 5.

A Deliverable or milestone is treated as accepted if you do not respond within the review period, or if you start using the Deliverable in your business.

Fees for time worked are payable as invoiced under clause 6 and do not depend on the acceptance of any Deliverable.

Either of us may ask for a change to the Services, scope, team, dates or Fees.

We will set out each change, and its effect on the Fees, dates and any other part of the Statement of Work, in a written change request.

A change request takes effect only when your authorised approver accepts it in writing, which may be through the approval link we send. A change request is never accepted by silence.

Until a change request is accepted, we will continue to work to the existing Statement of Work, and we will not charge for additional work that you have not approved.

We may change how we deliver the Services without a change request where this is needed to comply with the law or safety requirements, or where it does not reduce the nature, scope or quality of the Services. We will tell you about any such change.

If you use purchase orders and an accepted change request increases the Fees, you will give us a revised or additional purchase order covering the increase within 5 Business Days of accepting the change. Until we receive it, we may hold off starting the additional work, and any dates affected by the change move by the time we wait. Work that the change does not affect continues as planned. If you ask us in writing to start the additional work before the purchase order arrives, we will. In every case the accepted change stands, and the lack of a revised purchase order does not delay payment of a valid invoice under clause 6.4.

You will pay the Fees and approved expenses set out in each Statement of Work. All amounts are in Australian dollars and exclude GST unless stated otherwise.

For time and materials Services, Fees are charged for time actually worked at the daily fees in the Statement of Work, based on an 8 hour working day, with part days charged by the hour. Where the Statement of Work sets an engagement price, we will not charge more than that amount without an accepted change request.

For fixed price Services, Fees are invoiced at the milestones in the Statement of Work. Unless the Statement of Work says otherwise, the first milestone is invoiced when the Statement of Work is signed.

We invoice by email, monthly in arrears for time and materials Services and at each milestone for fixed price Services. If you use purchase orders, you will give us a purchase order number before work starts. The lack of a purchase order number does not delay payment of a valid invoice.

You will pay each invoice within 14 days of the invoice date, or any other period stated in the Statement of Work, without set-off, deduction or counterclaim.

If you dispute an invoice in good faith, you will tell us in writing, with reasons, within 7 Business Days of receiving it, and pay the undisputed part by the due date. We will work with you to resolve the dispute promptly.

If an amount is not paid by its due date:

• (a)we may charge interest on the overdue amount, calculated daily from the due date until it is paid, at the Reserve Bank of Australia cash rate target plus 4% a year;
• (b)we may give you a written reminder and, if the amount is still unpaid 10 Business Days later, pause the Services until it is paid, with the dates in the Statement of Work moving accordingly; and
• (c)you will reimburse our reasonable costs of recovering it, including reasonable legal and debt collection costs.

We will charge only for expenses that you have approved in writing before we incur them. Approved expenses are charged at cost with receipts and no mark-up. We do not charge for travel time unless the Statement of Work says so.

Where GST applies to a supply under an Agreement, you will pay the GST in addition to the amount otherwise payable, on receipt of a valid tax invoice.

You may cancel or postpone the start of the Services, or any scheduled day of work, by written notice to us.

There is no charge if you give us at least 10 Business Days’ notice before the affected day.

If you give us less notice than that and we cannot reasonably reassign Our People to other paid work for the affected days, you will pay a cancellation fee, calculated as a percentage of the Fees for the days cancelled or postponed, together with any committed expenses that cannot be recovered:

The cancellation fee applies to no more than the first 10 Business Days of planned work affected by a cancellation or postponement. For fixed price Services, the Fees for a day of planned work are the daily fees in the Statement of Work or, if there are none, the fixed price divided by the total days of effort planned in the Statement of Work.

We will always try to reassign Our People first, and we will talk to you before charging a cancellation fee.

For fixed price Services, any amount you have already paid for the first milestone counts towards the cancellation fee and the work done, and we will refund any balance.

Ending an Agreement after the Services have started is dealt with under clause 8.

Either of us may end an Agreement for any reason by giving the other at least 10 Business Days’ written notice.

Either of us may end an Agreement immediately by written notice if the other:

• (a)commits a material breach that cannot be remedied, or fails to remedy a breach within 30 days of receiving written notice of it; or
• (b)becomes insolvent, has a receiver, administrator or liquidator appointed, enters into an arrangement with its creditors, or stops carrying on business.

When an Agreement ends for any reason:

• (a)you will pay us for the Services performed and approved expenses incurred up to the date it ends;
• (b)for fixed price Services, this includes the milestones already reached and a fair proportion of the Fees for any milestone in progress, reflecting the work completed on it;
• (c)all unpaid amounts become due immediately;
• (d)we will give you the Deliverables and work in progress that you have paid for; and
• (e)each of us will return or delete the other’s Confidential Information under clause 10.4.

Ending an Agreement does not affect any rights that have already accrued, or clauses 6, 8.3, 9, 10, 11, 12, 14 and 17, which continue to apply.

Ending one Agreement does not end any other Agreement unless the notice says so.

Ownership of the intellectual property rights in each Deliverable, other than Our Materials and third party materials, passes to you when you have paid the Fees for it in full.

We and Our People keep ownership of Our Materials. Where Our Materials form part of a Deliverable, we grant you a perpetual, non-exclusive, royalty-free licence to use, copy and adapt them as part of that Deliverable for your internal business purposes. This licence does not allow you to sell or commercialise Our Materials on their own.

You keep ownership of the materials you give us, and grant us a licence to use them only for the purpose of providing the Services.

Third party materials included in a Deliverable are subject to their own licence terms, which we will identify to you.

Nothing in an Agreement prevents us from using the general skills, knowledge, experience, ideas and techniques we gain during an engagement, provided that we do not disclose your Confidential Information or infringe your intellectual property rights.

We may keep a copy of the Deliverables for our professional records, subject to clause 10.

We will indemnify you against losses arising from a claim by a third party that a Deliverable, used as permitted by these terms, infringes that third party’s intellectual property rights. This does not apply to the extent the claim arises from materials you gave us, changes made to the Deliverable other than by us, its use in combination with anything we did not supply, or our following your instructions. You will indemnify us on the same basis against claims arising from materials you give us.

A party seeking to rely on an indemnity in clause 9.7 must promptly notify the other of the claim, allow the other to control its defence and settlement, and give reasonable help at the other’s cost. If a claim is made about a Deliverable, we may obtain the right for you to keep using it, modify or replace it so that it no longer infringes, or refund the Fees paid for it. The indemnities in clause 9.7 are subject to clause 12.

Confidential Information means information disclosed by one of us to the other in connection with an Agreement that is marked as confidential or that a reasonable person would regard as confidential, including the terms and pricing of each Statement of Work. It does not include information that is or becomes public other than through a breach of an Agreement, that the recipient already knew or developed independently, or that the recipient receives from a third party who is free to disclose it.

Each of us will keep the other’s Confidential Information confidential, use it only for the purposes of the Agreement, and protect it with at least reasonable care.

Each of us may disclose the other’s Confidential Information only to those of its people, Our People, professional advisers and insurers who need to know it and are bound to keep it confidential, or where required by law or the rules of a stock exchange, in which case the disclosing party will, where lawful and practical, tell the other first.

On request, or when an Agreement ends, each of us will return or delete the other’s Confidential Information, except for copies held in routine backups or that must be kept by law or for professional records, which remain subject to this clause 10.

This clause 10 continues after an Agreement ends.

Each of us will comply with the Privacy Act 1988 (Cth) and the Australian Privacy Principles in handling personal information under an Agreement.

Where we handle personal information on your behalf, we will:

• (a)use it only to provide the Services or as you instruct in writing;
• (b)take reasonable steps to protect it from misuse, interference and loss, and from unauthorised access, modification and disclosure;
• (c)keep it in your systems or in Australia, unless you agree otherwise in writing;
• (d)not enter it into any artificial intelligence tool unless you have agreed in writing, including in the Statement of Work;
• (e)tell you without undue delay, and in any case within 3 Business Days, after becoming aware of an actual or suspected data breach involving it, and help you assess and respond to the breach, including under the notifiable data breaches scheme;
• (f)pass on to you any request or complaint about it from an individual, and give you reasonable help to respond; and
• (g)return or delete it when the Services end, subject to clause 10.4.

You confirm that you have the authority, and have given any notices and obtained any consents needed, for us to handle personal information for the purposes of the Services.

We will follow the reasonable information security policies and site rules you give us in writing. If doing so requires more time or cost than the Statement of Work allows for, we will raise a change request under clause 5.

Our privacy policy at thedigitalcompass.com.au/privacy explains how we handle personal information more generally.

Nothing in these terms excludes, restricts or modifies any right, remedy or guarantee that cannot lawfully be excluded, restricted or modified, including under the Australian Consumer Law.

Where the Australian Consumer Law allows us to limit our liability for a failure to comply with a consumer guarantee, our liability is limited, at our option, to supplying the Services again or paying the cost of having them supplied again.

Unless a Statement of Work sets a different amount, our total liability to you under or in connection with an Agreement, whether in contract, tort (including negligence), under statute or otherwise, is limited to the lower of the total Fees paid or payable under that Statement of Work and $1,000,000.

Neither of us is liable to the other for any indirect or consequential loss, or for any loss of profit, revenue, savings, data or goodwill, however it arises.

Clauses 12.3 and 12.4 do not limit liability for death or personal injury caused by negligence, for fraud or wilful misconduct, or your obligation to pay the Fees and other amounts due under an Agreement.

Each of our liability is reduced to the extent that the other contributed to the loss.

Neither of us may bring a claim under or in connection with an Agreement more than two years after it became aware, or ought reasonably to have become aware, of the circumstances giving rise to the claim.

We maintain professional indemnity insurance of at least $(to be confirmed) for any one claim, public liability insurance of at least $(to be confirmed) for any one occurrence, and workers compensation insurance as required by law. We will give you certificates of currency on request.

If a Statement of Work requires higher levels of cover or other types of insurance, we will hold that cover for the engagement.

During an engagement, and for 12 months after the last day on which a person from Our People worked on it, you will not employ or engage that person, directly or indirectly (including through another agency, a related body corporate or a company the person controls), without first agreeing it with us.

If you employ or engage such a person, you will pay us a conversion fee of 20% of the Conversion Value.

The Conversion Value is:

• (a)where the person is employed, the total remuneration package for their first 12 months of employment, being their base salary, superannuation, allowances and any sign-on or guaranteed bonus; or
• (b)where the person is engaged in any other way, their daily fee in the most recent Statement of Work under which they worked on your engagement, multiplied by 220. If that Statement of Work has no daily fee for them, their daily fee is the fixed price divided by the total days of effort planned in that Statement of Work.

You will tell us in writing within 10 Business Days of the person accepting your offer, including the remuneration package where clause 14.3(a) applies. We will invoice the conversion fee when the person starts, payable under clause 6.

Clause 14.1 does not apply to a person who responds to a general job advertisement that was not directed at Our People.

The conversion fee reflects the cost to us of recruiting, developing and replacing the person and the value of the engagement relationship we lose, and is not a penalty.

We will only name you as a client, use your logo or describe the work we have done for you in our marketing, including on our website and in proposals, if you have agreed in the Statement of Work or otherwise in writing, and within the limits of that agreement.

You may withdraw your agreement at any time by written notice. We will then stop using the material in anything new and remove it from our website within 10 Business Days, but we do not have to recall material already published or distributed.

You will not use our name or logo in public material without our written agreement.

We may describe the work we have done for you, in proposals and in our marketing, in a form that does not name you, use your logo or include anything that would identify you, unless the Statement of Work says otherwise. We will not disclose your Confidential Information in doing so.

Your agreement under clause 15.1, and any agreement to act as a reference for us, may be given through the online approval links we send, and is then treated as given in writing. We will record what you agreed and when, and clause 15.2 continues to apply to it.

Neither of us is liable for a failure or delay in performing an obligation, other than an obligation to pay money, to the extent it is caused by an event beyond its reasonable control, including natural disaster, fire, flood, pandemic or epidemic, government action, war, terrorism, industrial action other than by its own workforce, or failure of utilities or telecommunications.

The affected party will tell the other promptly, take reasonable steps to reduce the effect of the event, and resume performance as soon as it reasonably can.

If the event continues for more than 4 consecutive weeks, either of us may end the affected Agreement by written notice, and clause 8.3 applies.

A party with a dispute about an Agreement will give the other written notice of it. Neither of us will start court proceedings until this clause 17 has been followed, except to seek urgent interim relief.

The engagement leads for each of us will meet within 5 Business Days of the notice to try to resolve the dispute. If it is not resolved within a further 10 Business Days, it will be referred to a senior executive of each of us, who will have a further 10 Business Days to resolve it.

If the dispute is still not resolved, either of us may refer it to mediation in Melbourne administered by the Resolution Institute, with the mediator’s costs shared equally. If it is not resolved within 30 days of that referral, either of us may start proceedings.

Each of us will keep performing its obligations while a dispute is being resolved, including paying any amounts not in dispute.

Notices under an Agreement must be in writing and sent by email to the address in the Statement of Work, or to any other address a party gives by notice. Our address for notices is enquiries@thedigitalcompass.com.au.

An email notice is received when it is sent, unless the sender receives a message that it was not delivered. A notice received after 5.00 pm, or on a day that is not a Business Day, is treated as received at 9.00 am on the next Business Day.

Change requests, milestone certificates and approvals may also be given and accepted through the online approval links we send, and are then treated as in writing.

Each Agreement is the entire agreement between us about its subject matter and replaces any earlier proposals, discussions and understandings about it, unless the Statement of Work expressly includes them.

An Agreement may be varied only in writing signed or accepted by both of us, including by an accepted change request.

Neither of us may assign or novate an Agreement without the other’s written consent, which will not be unreasonably withheld.

Nothing in an Agreement creates a partnership, joint venture, agency or employment relationship between us, and neither of us may bind the other.

A failure or delay in exercising a right is not a waiver of it. If any part of an Agreement is invalid or unenforceable, it is severed and the rest continues to apply.

A Statement of Work may be signed electronically and in counterparts, in line with the Electronic Transactions Act 1999 (Cth) and its State and Territory equivalents.

In these terms, including and similar words do not limit what comes before them, headings are for convenience only, and the singular includes the plural.

Each Agreement is governed by the laws of Victoria, and each of us submits to the non-exclusive jurisdiction of the courts of Victoria.