Consulting Terms

2. General

2.1 In these Consulting Terms, any reference to the Consulting Proposal means the Consulting Proposal at Schedule 1.

2.2 If these Consulting Terms are provided in addition to the Client, as set out in the Consulting Proposal (the Client, you) entering into a Software Proposal and Software Terms of Use (Terms) with Style Arcade Pty Ltd (ACN 601 545 644) of 111 Flinders Street, Surry Hills, NSW 2010, Australia (Style Arcade, we or us), then:

(a) these Consulting Terms are considered a Statement of Work under the Terms and is incorporated into the Terms by reference;

(b) the Consulting Services are considered Related Services under the Terms; and

(c) in the event of any inconsistency between these Consulting Terms and the Terms, the Terms prevail to the extent of the inconsistency.

3. Term

3.1 These Consulting Terms commences on the Commencement Date and ends on the Expiry Date, unless terminated earlier in accordance with these Consulting Terms (Term).

3.2 If the Payment Terms in the Consulting Proposal specifies 'Subscription', then these Consulting Terms will automatically renew for the Subscription Term at the end of the Term and at the end of each Subscription Term. Either party may give written notice to the other party at least 14 days before the end of then-current Term, to terminate these Terms.

4. Consulting Services

4.1 We will use reasonable endeavours to provide the Consulting Services to you, as set out in the Consulting Proposal, in consideration of you paying the Service Fees.

4.2 Any delivery dates for the Consulting Services are estimates/guidelines only and we will not be liable for any delays in delivery, including but not limited to, where delays occur due to your act, omission, negligence or breach of these Consulting Terms.

5. Your Obligations

5.1 You agree to appoint a representative from your business, with relevant knowledge, experience, financial acumen, skill (including in Excel where relevant) and authority to:

(a) act as the sole point of contact between you and us;
(b) provide the Client Data, including information, documentation and responses from you;
(c) coordinate meetings and liaise with any relevant parties;
(d) if applicable, manage and maintain any Financial Plan model accuracy and integrity; and
(e) if applicable, review Reports and confirm that the assumptions used by us in the Reports and Consulting Services are accurate and valid as at the date of the Reports (Acceptance Criteria), or advise us of any errors or variances in the assumptions used for the Reports and Consulting Services and provide suggested alternative assumptions

5.2 You agree that upon our request, you will provide the following Client Data, at your cost, in a fulsome, accurate and in a timely manner:

(a) information and data relating to your business and in particular purchases, sales and marketing (whether directly or via an automated data feed); 
(b) responses to questions from us; 
(c) provision of documents, sales records and logins to appropriate computer systems as requested by us from time to time; and
(d) any information that either party considers relevant for us to provide the Consulting Services.

5.3 We are not responsible for conducting any independent verification of such Client Data.

5.4 You acknowledge and agree that in order for us to provide the Consulting Services, we must have access to certain personnel and Client Data in a timely manner and that we are not liable for any delay or failure to provide the Consulting Services due to your untimely or failure to provide such information or comply with Your Obligations.

6. Fees and Payment

6.1 You agree to pay the Service Fees in consideration of Style Arcade providing the Consulting Services.

6.2 You agree that you will pay to Style Arcade the Service Fees, plus any applicable taxes on the dates specified in the Consulting Proposal or as set out in an invoice (Due Date). If no date is specified, you must pay us within fourteen (14) days of the date of the invoice.

6.3 You must pay the Service Fees by the Due Date, in cleared funds without any set off or deduction.

6.4 Unless otherwise specified in writing, the Service Fees are exclusive of GST.

6.5 If any GST is imposed on any supply made under these Consulting Terms, then the party making the supply will collect the GST from the recipient in addition to the Fees. The GST is calculated by multiplying the amount or value of the consideration for the supply by the GST tax rate prevailing as at the date the supply is made.

6.6 If we are required to travel (interstate or internationally) to perform the Consulting Services, such travel must be agreed prior in writing by us and additional Service Fees may apply (as agreed between the parties).  You must pay all travel costs incurred by us, including but not limited to, travel expenses and accommodation.

6.7 We may vary the Service Fees, including any hourly rates, at any time, by at least two (2) days' written notice to you.  Such varied Service Fees will apply to any Consulting Services performed after the date of such notice.  If you do not dispute such varied Service Fees within the notice period, it will be deemed to accept the varied Service Fees.  You may terminate these Consulting Terms by written notice to us if you do not agree to such varied Service Fees within the notice period.

7. Warranties

7.1 You acknowledge and agree that:
(a) the scope of the Consulting Services is limited to providing consulting only, and any decisions you make, including relating to your actual merchandise purchases and business direction, must be considered by you independently;
(b) many factors may affect business outcomes, and that we provide no warranty or guarantee that any result or objective can, or will be, achieved in connection with the Consulting Services;
(c) the Consulting Services are based on our interpretation of Client Data, and we will use and rely on and assume the accuracy and completeness of the Client Data in performing the Consulting Services;
(d) you are solely responsible for ensuring that we are provided with all data that may be relevant to the provision of Consulting Services;
(e) you are solely responsible for any outcomes of the consulting, analysis or recommendations provided by us in connection with the Consulting Services, including based on the data you provide to us; and
(f) past performance does not determine future performance, and that any forecasts or plans are an estimate only; and

7.2 You warrant and represent to us that you:
(a) have legal capacity, power and authority to enter into and be bound by these Consulting Terms;
(b) will comply with any reasonable directions given to you by us from time to time;
(c) any Representative you appoint will have relevant knowledge, experience, financial acumen, skill (including in Excel where relevant), in order to be able to best analyse and implement any recommendations identified as a result of the Consulting Services;
(d) will act lawfully and in performing its obligations under these Consulting Terms;
(e) will comply with all relevant work, health, safety and welfare standards and regulations and other policies determined by us or as prescribed by legislation; and
(f) will comply with any applicable licenses, laws, regulations, industry standards or codes of conduct, health and safety requirements.

8. Intellectual Property

8.1 The parties acknowledge and agree that the Client Data is owned by you and is not transferred to us under these Terms at any time. You grant us, a perpetual, non-exclusive, royalty-free licence to use, alter your Intellectual Property, for the purposes of us providing the Consulting Services under these Consulting Terms.

8.2 You acknowledge that we may use and provide our own Intellectual Property, including in our tools, materials and processes, in the course of providing the Consulting Services. Subject to clause 7.1, you agree that any deliverable developed by us as part of the Consulting Services is owned by us, unless agreed otherwise in writing.  You agree that you have no interest, claim or influence therein and will not challenge our ownership of such Intellectual Property.

8.3 You agree that our Intellectual Property may not be duplicated, shared or developed (for profit or otherwise, directly or indirectly), other than for the specific purpose for which it was originally provided as specified by us.

9. Termination

9.1 Termination for convenience

Without affecting any other right or remedy available to it, either party may terminate these Consulting Terms by giving not less than 30 days written notice to the other party.

9.2 Termination for breach
Either party may, by written notice to the other party, immediately terminate the Terms or the provision of some or all of the Services, if the other party:
(a) breaches any material provision of the Terms and the breach is not remedied within 14 days of the receipt of the written notice from the first party requiring it to remedy the breach; or capable of being remedied;
(b) becomes insolvent, liquidated or bankrupt, has an administrator, receiver, liquidator, statutory manager, mortgagee’s or charge’s agent appointed, becomes subject to any form of insolvency action or external administration, or ceases to continue business for any reason; or
(c) is unable to perform a material obligation under the Terms for 30 days or more due to Force Majeure.

9.3 We may terminate these Consulting Terms or the provision of some or all of the Consulting Services, immediately, in our sole discretion:
(a) if there is any breach of the warranties set out in clause 6 or if any such warranties are or become false;
(b) if we consider that the working relationship between the parties has broken down including a loss of confidence and trust; and
(c) for any other reason outside our control which has the effect of compromising our ability to provide you with the required Consulting Services within a reasonable timeframe.

10. Effect of termination

10.1 Termination or expiry of the Terms does not affect either party’s rights and obligations that accrued before that termination or expiry. On termination or expiry of the Terms, you agree that you will immediately pay all Fees for Services provided prior to that termination or expiry and for the period after the termination date until the end of the Term.
10.2 Except to the extent that a party has ongoing rights to use Confidential Information, at the other party’s request following termination or expiry of the Terms, a party must promptly return to the other party or destroy all Confidential Information of the other party that is in the first party’s possession or control.

11. Confidentiality

11.1 In this clause:
(a) Disclosing party (and Discloser) means the party that discloses or makes available Confidential Information to the Recipient; and
(b) Recipient means a party that receives or has access to the Confidential Information of the Discloser.

11.2 The parties agree that the Recipient will:
(a) keep the Confidential Information of the Discloser confidential at all times and not disclose or permit it to be disclosed, to any third party, during the term of these Consulting Terms;
(b) take such steps as are reasonable to protect the Confidential Information from the misuse, interference and loss and unauthorised use or disclosure;
(c) only use the Confidential Information for the purposes of these Terms or for a purpose connected with these Terms; and
(d) as soon as practicable notify the other party of any breach of confidentiality.

11.3 A party may only disclose the Confidential Information:
(a) in accordance with these Consulting Terms;
(b) to its officers, employees, agents or advisers who have a specific need to access the Confidential Information and who are bound by confidentiality obligations to the Recipient; and
(c) where disclosure is required by law.

11.4 Each party will be responsible for any breach of this clause by its officers, employees, agents or advisors if they breach the confidentiality of the Confidential Information.

11.5 The obligations in clause 10.2 do not apply to Confidential Information which the Recipient created independently of the Disclosing party or that is public knowledge (other than as a result of a breach of confidentiality by the Recipient).

11.6 Unless it is commercially unreasonable or impractical, in the reasonable opinion of Style Arcade, to do so, the Recipient agrees that upon termination or expiry of this Agreement or upon request by the Disclosing party, whichever is sooner, it will at the Disclosing party's cost:
(a) deliver to the Disclosing party or destroy, as requested by the Disclosing, all Confidential Information which it holds in physical form; and
(b) delete all electronic versions of the Confidential Information, except for copies that have been stored automatically as part of the Recipient’s routine backup procedures, and which would be impractical to delete. If the Confidential Information is restored via such backup, the Recipient must use reasonable endeavours to delete such restored Confidential Information. Any Confidential Information retained by the Recipient would remain subject to the Confidentiality provisions of this Agreement.

11.7 This clause will continue to apply for two (2) years after the termination or expiry of this Agreement.

12. Limitation of liability and indemnity

12.1 To the maximum extent permitted by law, we exclude any and all liability to the Client, whether in contract, tort (including negligence) or otherwise, for any special, indirect or consequential loss arising under or in connection with these Consulting Terms, including any profits, sales or business, production, agreements or contracts, business opportunity, anticipated savings, or damage to goodwill or reputation.

12.2 To the maximum extent permitted by law, except as expressly set out in these Consulting Terms, we exclude any conditions, warranties, guarantees, rights, remedies, liabilities or other terms that may be implied by custom, under the general law or by statute in favour of you under these Consulting Terms.

12.3 To the maximum extent permitted by law, our total aggregate liability to you under or in any way connected with these Consulting Terms or the performance or non-performance of these Consulting Terms is limited to an amount equal to the amounts paid under these Consulting Terms in the 12 month period immediately preceding the date on which the relevant claim arose.

12.4 You agree that, to the maximum extent permitted by law, we will not be liable for, and you indemnify us and our Personnel, and will keep all of them indemnified against, all actions, claims, charges, costs (including legal costs on a full indemnity basis), expenses, losses, damages and other liability that they may sustain or incur, directly or indirectly, arising out of or in connection with:
(a) an actual breach, or a suspected breach (in the opinion of Style Arcade), of these Consulting Terms by you;
(b) any negligent, unlawful, wilful or fraudulent act or omission of you or your Personnel, in connection with these Consulting Terms;
(c) any Consulting Services provided by us based on any errors, inaccuracies or omissions in the Client Data or other data you provide or omit to provide to us;
(d) any defects in the performance of the Consulting Services that are caused by or contributed to by your error, fault or breach of these Consulting Terms;
(e) your provision of incorrect, incomplete, erroneous or inaccurate data and Client Data;
(f) your reliance on such Consulting Services;
(g) any third party claim against us in relation to these Consulting Terms; and
(h) any loss of or damage to any property or injury to or death of any person caused by your negligent or fraudulent act or omission or wilful misconduct or any of your Personnel.

12.5 You release us from any delay, liability, claim, loss, damage, cost or expense, whether direct, indirect or consequential (including but not limited to, loss of profits and loss of opportunity) that it may suffer or incur as a result of your error, fault or breach of these Consulting Terms or Terms, or the Client Data being erroneous, incomplete or inaccurate.

13. Personnel and non-solicitation

13.1 You agree that any Style Arcade Personnel selected to provide the Consulting Services to you is determined in our sole discretion and may change at any time.

13.2 You agree that you will not canvass, solicit or entice, employ, induce or attempt to employ, induce, solicit or entice away from us, any employee, contractor or customer of us, whether directly or indirectly, formally or otherwise, for any party (including, for you yourself, your employees, related bodies corporate or any third parties) during the Term and for a period of 12 months after the date of expiry or termination of these Consulting Terms or the Terms, whichever is later.

14. Dispute Resolution

14.1 If there is a dispute between the parties, the parties agree to adhere to the following dispute resolution procedure:
(a) The complainant must advise the respondent in writing, the nature of the dispute, what outcome the complainant wants and what action the complainant thinks will settle the dispute.  The parties agree to meet in good faith to seek to resolve the dispute by agreement between them (Initial Meeting) within 14 days of the second party receiving the complainant's notice.
(b) If the parties cannot agree how to resolve the dispute at the Initial Meeting, either party may refer the matter to a mediator. If the parties cannot agree on who the mediator should be, the complainant will ask the Law Society of New South Wales to appoint a mediator.  The mediator will decide the time and place for mediation. The parties must attend the mediation in good faith, to seek to resolve the dispute.

14.2 Any attempts made by the parties to resolve a dispute pursuant to this clause are without prejudice to other rights or entitlements of the parties under these Terms, by law or in equity.

14.3 Except in relation to urgent, injunctive or interlocutory proceedings, the parties agree that neither party may issue proceedings until they have acted in accordance with this clause.

15. Interest and recovery

15.1 If any sum due for payment under these Consulting Terms is not paid on the due date, the party in default must pay interest on the amount unpaid at the Penalty Interest Rate accruing on a day-to-day basis from the due date up to and including the date of actual payment, plus any amounts incurred or suffered by Style Arcade in the enforcement or recovery of such payments, including collection agency and legal costs and for all costs which would be incurred as if the debt is collected in full, including commission on collection of the additional costs and also including legal demand costs.

15.2 If you do not pay the Service Fees on time, then Style Arcade may elect, without notice, to suspend the Services.  You acknowledge that you remain liable to pay the Service Fees during any period of suspension under this clause.

15.3 You are liable for any fees or charges payable to any bank or third party processor due to any failure to process any payments (including insufficient funds or incorrect or out-of-date details).

16. General

16.1 Assignment: You must not assign, transfer, novate or deal with the whole or any part of its rights or obligations under these Consulting Terms without the prior written consent of Style Arcade.  Any purported dealing in breach of this clause is of no effect.  A change in control (as defined in the Corporations Act) of you constitutes a deemed assignment.

16.2 Counterparts: These Consulting Terms may be executed in any number of counterparts, each of which when executed and delivered shall constitute an original of these Consulting Terms, but all the counterparts shall together constitute the same agreement. No counterpart shall be effective until each party has executed at least one counterpart. The parties agree that an executed electronic copy of a digital scan (including in portable document format), of these Consulting Terms (where such email address has been notified by a party to another party for these purposes) will serve as a legal and binding agreement with the same force and effect as the original.

16.3 Entire agreement: These Consulting Terms is the entire agreement between the parties and supersedes all and any communications, negotiations, arrangements and agreements, whether oral or written, between the parties in respect of the matters that are the subject of these Consulting Terms.

16.4 Force majeure: Neither party will be liable for any delay or failure in performance of its obligations under these Terms if the delay or failure is due to any cause outside its reasonable control. This clause does not apply to any obligation to pay money.

16.5 Further assurance: Each party must from time to time and in a timely manner do all things reasonably required of it by the other party to give effect to these Consulting Terms.

16.6 Notices: Unless expressly stated otherwise in these Consulting Terms, all Notices:
(a) must be:
(i) in writing;
(ii) delivered by electronic mail at the email address that you supplied to Style Arcade or to the relevant Style Arcade email address; and
(iii) (optional) left at the address, sent by prepaid ordinary post, or given in any other way permitted by law.
(b) take effect from the time they are received unless a later time is specified.

16.7 Relationship: Except as expressly stated in these Consulting Terms, nothing in these Consulting Terms is intended to create a relationship of partnership, joint venture, agency or employer-employee between the parties. Neither party has authority to create, assume or otherwise enter into any agreement that imposes rights or obligations on the part of the other party.

16.8 Powers, rights and remedies:  Unless otherwise stated in these Consulting Terms, the powers, rights and/or remedies of a party under these Consulting Terms are cumulative and are in addition to any other powers, rights and remedies of that party. Nothing in these Consulting Terms merges, extinguishes, postpones, lessens or otherwise prejudicially affects any power, right, or remedy that a party may have at any time against the other party to these Consulting Terms or any other person.

16.9 Set off: We are authorised to deduct any amount due and payable by you from amounts otherwise due and payable to you under or in connection with these Consulting Terms.  Any exercise by a party of its rights under this clause does not limit or affect any other rights or remedies available to it under these Consulting Terms or otherwise.

16.10 Severance: If any provision of these Consulting Terms is prohibited by law or judged by a court to be unlawful, void or unenforceable, the provision shall, to the extent required, be severed from these Consulting Terms and rendered ineffective as far as possible without modifying the remaining provisions of these Consulting Terms and shall not in any way affect any other circumstances of or the validity or enforcement of these Consulting Terms.

16.11 Survival: The following clauses are continuing obligations and will continue after termination or expiry of these Consulting Terms: 10 (Effect of termination), 11 (Confidentiality), 12 (Limitation of liability and indemnity), 13 (Non-solicitation), 14 (Dispute Resolution), 15 (Interest and recovery) and 16 (General) and 17 (Definitions and interpretation).

16.12 Third parties: These Consulting Terms do not, and are not intended to, confer any rights or remedies upon any person other than the parties.

16.13 Time of the essence: The parties agree that time is of the essence with respect to your obligations under these Consulting Terms.

16.14 Waiver: A failure by either party to take action to enforce its rights does not constitute a waiver of any right or remedy under these Consulting Terms unless it is in writing signed by the party granting the waiver.  If either party waives any breach of these Consulting Terms, this will not constitute a waiver of any other breach.

16.15 Jurisdiction: The parties irrevocably submit to the exclusive jurisdiction of the courts of the state of New South Wales, Australia.

16.16 Governing law: These Consulting Terms will be governed by and construed and interpreted in accordance with the laws of New South Wales, Australia.

16.17 Electronic Records and Signature: It is agreed by the parties that, notwithstanding the use herein of the words “writing,” “execution,” “signed,” “signature,” or other similar words, the parties intend that the use of an Electronic Signatures and the keeping of records in electronic form be granted the same legal effect, validity or enforceability as a signature affixed by hand or the use of a paper-based record keeping system (as the case might be) to the extent and as provided for in any applicable law including Electronic Transactions Act 2000 (NSW), or any other similar laws.

16.18 Amendments: These Consulting Terms may be varied or updated by us at any time by written notice to you, and you will be deemed to accept any such changes by continuing to obtain Consulting Services after the changes have been made. It is your obligation to ensure that you have read, understood and agreed to the most recent Consulting Terms available on the Style Arcade website.

17. Definitions and interpretation

17.1 Definitions
In these Consulting Terms, capitalised terms are defined in the Consulting Proposal and as set out below, unless the context requires otherwise:

Business Day means a day which is not a Saturday, Sunday or bank or public holiday in New South Wales, Australia.

Confidential Information means a Disclosing party’s non-public information, in any form, and all copies, summaries and extracts, regardless of whether they are identified as confidential at the time of disclosure, excluding any information that:
(a) is or becomes generally publicly available at the time of disclosure or subsequently through no fault of the recipient;
(b) was known to Recipient, free of any confidentiality obligations, before its disclosure by Discloser;
(c) becomes known to Recipient, free of any confidentiality obligations, from a source other than Discloser; or
(d) is independently developed by Recipient without use of the Confidential Information;

Consulting Terms means these Consulting Terms and its schedules and annexures and any subsequent variation.

Corporations Act means the Corporations Act 2001 (Cth).

GST means Goods and Services Tax as set out in the GST Law.

GST Law means the definition given to that term in the A New Tax System (Goods & Services Tax) Act 1999 (Cth).

Intellectual Property means patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs and unregistered designs, rights to use, and protect the confidentiality of, confidential information (including know-how, trade secrets, and datasets), technology and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist now or in the future, anywhere in the world.

Notices include any approvals, consents, instructions, orders, directions, statements, requests and certificates or other communications that may be given, or are required to be given, under these Consulting Terms.
Penalty Interest Rate means the rate of interest for the Post Judgement amount set by the Local Court of New South Wales;

means an employee, director, officer, agent, representative, contractor or sub-contractor of a party.

has the meaning set out in clause 2.

17.2 Interpretation
In these Consulting Terms, unless the context requires otherwise:
(a) words in the singular include the plural and vice versa;
(b) headings (including those in brackets at the beginning of paragraphs) are for convenience only and do not affect the interpretation of these Consulting Terms;
(c) any reference to gender includes the other gender;
(d) a reference to a clause, paragraph, schedule or annexure is a reference to a clause, paragraph, schedule or annexure, as the case may be, of these Consulting Terms;
(e) if any act which must be done under these Consulting Terms is to be done on a day that is not a Business Day then the act must be done on or by the next Business Day;
(f) a reference to any legislation includes subordinate legislation and all amendments, consolidations or replacements from time to time;
(g) a reference to a natural person includes a body corporate, partnership, joint venture, association, government or statutory body or authority or other legal entity;
(h) the words "includes" and "including" or words of similar effect are not words of limitation;
(i) no clause of these Consulting Terms shall be interpreted to the disadvantage of a party merely because that party drafted the clause or would otherwise benefit from it;
(j) a reference to a party includes the party’s successors, assigns and persons substituted by novation;
(k) a reference to a covenant, obligation or agreement of two or more persons binds or benefits them jointly and severally;
(l) a reference to time and date is to local time and dates in New South Wales, Australia; and
(m) unless specified otherwise, a reference to “$” or “dollars” refers to Australian dollars.