Good terms for a working partnership. Our Terms of Service

Overview

For starters

If you’re reading this document it’s because you will be hiring us to complete a specific project (we’ll call it the Project) for you that is described in a separate document we call a Proposal (or a Quote if that’s what you’ve asked for). It’s always best to have a few things written down so that we both know and agree what’s what, who’s expected to do what and what happens should anything go wrong along the way. Therefore it’s important that before we get started with the Project you have read of these standard terms and conditions (Terms of Service) and the Proposal or Quote, which together contain all the terms of the agreement between us about the Project.

If we do other projects or work for you in the future these Terms of Service will apply subject to any other document we sign, such as another Proposal or Quote.

To keep things simple, in all instances we, us and our refers to us, The Third Floor Consulting (a business name registered to Family Travel Pty Ltd), and you or your refers to you, (or the company identified in the Proposal or Quote that you represent), our client.

We know it’s not the most riveting thing you will read this year, but we have tried to make this document easy to digest, removing as much legal-ese as our lawyers would allow. We have no desire to trick (or bore) you into signing something that you might later regret. There are a few things to get through, so grab yourself a drink and please read on.

Our commitment to you

We will always do our best to fulfil your needs and meet your Project goals;
We confirm that we have the experience and ability to perform the services outlined in each Proposal or Quote (let’s refer to that as our Services);
We will carry out the Services in a professional and timely manner;
We will absolutely maintain the confidentiality of any information that you give us; we will not disclosure your confidential information to any third party without your written consent;
We will use our best endeavours to meet each date things have to be done by (Deadline), but whether we succeed will depend on you keeping your commitment to us and we can’t be held responsible for a missed launch date or Deadline due to issues that are out of our control; and
We are responsible for the work of any sub-contractor we engage to help us provide our Services. If they’re working for us, they’re top-notch and they’re ‘part of the family’. We will cover any legal obligations to sub-contractors working on the Project.

Your commitment to us

You confirm that there is nothing preventing you from entering into this agreement;
You agree to provide us with everything that we’ll need from you to complete the Project. This includes data, access to systems and people, text, images and any other information that you have as and when we’ll need it, and in the format that we’ll need it;
You agree to review our work, provide feedback and sign-off approval in a timely manner;
You agree to pay our invoices according to our payment terms, including any agreed up-front payments required for the commencement of the Project; and
You agree that you cannot transfer this contract to anyone without our permission.

About our Proposals

Each Proposal will contain the following information: A full description of us and you;

The authorised representatives of you and us;
The scope of the work that we will be doing for you in the Project (Activity Breakdown);
The items that we must deliver to you (the Pricing & Deliverables);
The planned Project schedule containing defined phases of the Project (Phases) and any known Deadlines;
Whether the cost of the Project (Project Cost) will be fixed fee (Fixed Fee) or an estimate based on our anticipated time (Estimated Cost);
Where a Fixed Fee applies, how many months of Project support it includes;
The payment schedule by which we’ll invoice for the Services (Payment Schedule), and
Any conditions specific to the Project, which will override these Terms of Service.

These are generally four types of Proposals:

Where you give us a detailed brief or the Project is relatively simple, we can give you a final Proposal straight up.
Sometimes, particularly for complex projects, we need to spend considerable time and effort to scope the Project. In those cases, where you want us to do so, we will estimate the time we need to spend on this scope and definition work and include this in a preliminary Proposal covering this scoping work which we will send to you for approval.
Alternatively we can agree that instead of doing a separate scoping exercise we can give you our best ‘guesstimate’ of a project plan including our best ‘guesstimate’ of the costs and adjust it as things become clearer. Obviously we can’t give a Fixed Fee in those circumstances.
Or you can give us your budget for the Project (Budget) and the Proposal will prioritise the Services and tasks to best deliver the goals of the Project within that Budget. If you decide to proceed with a Budget, we will work with you along the way to make decisions about how we can add maximum value to the Project and we’ll let you know prior to starting the Project if we think the Budget won’t allow us to meet your Project goals.

About our Quotes

In instances where you’re asking us for specific requirements and you don’t need a proposal, we’ll provide you with a quote. Our quotes will detail as much information as we have at the time, the number of days (or hours) that you’d like us to commit to, and the rate for delivering that work. This is our simplest way of engaging with you, and it’s like a time and materials approach to delivering the results that you need.

Project process

Day-to-day

At the beginning of each Phase (and for many activities) we’ll most likely need information from you, and at the end of each Phase we will present you with materials for you to approve and sign-off. We’ll set milestones in advance that indicate when we’ll need your input throughout the Project, which we will need you to meet to ensure that we can meet ours.

We’re happy to complete regular status reports and meeting notes to document decisions made and activities undertaken during the Project. We will also work within any Project governance framework you have in place for the duration of the Project.

All approvals of work need to be provided to us in writing – preferably by email.

We schedule our work in advance to make sure all projects can be accommodated and given the right focus from our team. If you have a revision to the Project scope for us or there’s a hold on a Project, usually a week’s notice is okay, and we will do our very best to get your project booked in the following week, pending any prior commitments on our side.

Dollars and sense

Determining the costs

We generally charge for our work in one of two ways:

We track our time as we go and invoice you as per the rates agreed in either the Propsal or Quote. We track our time weekly via timesheets and can produce a report on time spent on request; or
Having properly scoped the Project we give you a Fixed Fee (excluding third party expenses – Disbursements) and then assuming there are no changes to the Project Scope once this has been agreed to by you, we’ll stick to this.

Changes and extra costs

Our Proposals and Quotes are created according to our understanding of the requirements for the Project based on the discussions and communications we’ve had with you. Should the Project Scope change or if additional Services are required for any reason, we will let you know in writing, where it is practical to do so,

what these changes are, and/or
what the additional costs will be (either as an Estimated Cost or fixed Fee) before they are invoiced to you. Unless we agree otherwise these additional costs will be calculated using our Standard Rates, and/or
what impact the changes will have on the Deliverables, Phases and Deadlines

Something we’d really like you to keep in mind is that changes to Project Scope do usually have an impact on Deadlines. This means that if we are managing additional stakeholders, developing extra content or creative, carrying out project accountabilities or doing extra work of any kind for you for the Project, we most likely won’t be able to keep the original planned Project milestones – Deadlines will shift, and there is a knock-on effect throughout the Project timeline.

All our costs are exclusive of GST (unless stated otherwise). GST at the applicable rate will be added to our tax invoices and is payable by you.

If there are excessive amount of meetings required above and beyond what we deem to be reasonable for the Project Scope and/or the nature of the Project as outlined in the Proposal, we have the right to charge additional time for those meetings.

Where the Project Cost is a Fixed Fee, the Proposal specifies the Project deliverables, based on our experience, that will ensure your objectives are met. We have allocated sufficient time for meetings, workshops, consultation and “doing the work” to give you the opportunity to provide your input and request reasonable changes (but not too much to ‘pad’ or over- inflate the Project Cost). If for some reason you’re not happy with the work, you can ask us to keep working until we get it right however the additional time required to do so will be charged at our Standard Rates. Or you can choose to terminate the contract (which would make us very sad) – for more on that you should read the part about “Calling it quits”.

Unless specifically included in the Proposal or Quote, the items listed below will be invoiced as Disbursements and are additional to our fees. These items will be charged to you at our cost plus a 10% handling fee and certain items may include a higher profit margin where we have developed special relationships with our suppliers. We reserve the right to invoice you as they occur, with 30 day payment terms.

Printing & production costs (including printer’s proofs and prototypes)
Photography, illustration, iconography or stock images
Specifically selected software licenses
Registration and/or trademarking of any new company name or tag-line, and/or any official legal checks and searches
Workshop materials (such as Flip Charts, Post-It Notes, etc.)
Signage production and installation costs
Website Hosting
Website domain name registration
Courier and delivery fees
Other disbursements such as USB flash drives, DVDs, CDs, packaging, associated production costs, etc.
Interstate and/or international travel. We also reserve the right to charge (according to our Standard Fees) for time and travel to premises more than 50km from our offices in Frenchs Forest, NSW

Payment conditions

Following any up-front payments, the fees will be invoiced during the project periodically according to the Payment Schedule or fortnightly (unless agreed otherwise). Our invoice terms for these invoices are 14 days unless agreed otherwise.

If the project is cancelled before the Project Scope has been completed, we will cease work on the Project and all work done to the date of cancellation will be invoiced as follows:

If the Project Cost is a Fixed Fee –
1. That proportion of the Fixed Fee existing on the date of cancellation that we reasonably estimate is attributable to the work completed as at the date of cancellation (Completed Work Fee) plus
2. 25% of the balance of that Fixed Fee after deducting the Completed Work Fee (to reflect the profit we would have made on the project if it had continued to completion), and
3. All Disbursements incurred or paid by us as at the date of cancellation that we are not able to legally avoid paying or obtain refund.

If the Project Cost is an Estimated Cost or if the Project is on a time and materials basis –
1. The charges at our Standard Rates for the work completed at the date of cancellation plus
2. 25% of the balance of the Estimated Cost existing on the date of cancellation or if there is no Estimated Cost, 25% of the amount we can reasonably demonstrate would have been charged to complete the Project Scope as it existed on the date of cancellation (to reflect the profit we would have made on the project if it had continued to completion),and
3. All Disbursements incurred or paid by us at the date of cancellation that we are not able to legally avoid paying or obtain refund.

After receiving a Deliverable from us, you have 14 days from the date of delivery or invoice (whichever is the later) to raise an issue with us concerning that Deliverable – whether about the Deliverable itself or the cost. If we don’t hear from you within this time, it means you have approved and accepted those costs and work.

Any concern raised over a specific payment amount will be dealt with in isolation, and you will still be required to pay for the balance of the amount invoiced to you. You cannot withhold any payment because of an offsetting claim you say you have against us. Your claim must be dealt with on its own.

If you have paid us in advance for any work we are doing for you, which for any reason you decide not to proceed with, we will give you a credit for the unused amount. You can use this credit with us for future projects within a 12 month period from the date of cancellation, after which it will expire. The credit amount cannot be converted to cash and although it can be used to party, it cannot be transferred to any other party.

If the duration of a project exceeds the original agreed end date due to delay on your part, we reserve the right to charge additional fees for project management. This is because longer projects require more project management time and our initial project management time estimates are based on a mutually agreed project time frame. We will notify you when the pre-agreed project management time has been used up, and if necessary re-scope based on redefined project requirements.

We like to keep projects moving and on-track. If there’s been a period of unexpected ‘radio silence’ or delay from you for over 14 days, we can invoice you for the unbilled services to date.

It’s also important to us to be paid on time. It keeps us happy and able to continue to provide our wonderful services. Any payments not received by the due date specified on our invoices to you (the Due Date) being 14 days (or another period as specifically agreed in the Proposal) will be subject to our debt collection process. Here’s how it works:

If we don’t receive payment from you by the Due Date, we will send two friendly reminders, separated by seven days, to the email we have for you on file. We will also try to make contact by phone.
If we still don’t receive the funds seven days after the second reminder, we will issue you with a third and final reminder, (excuse us if we’re a little sterner this time around but we’re most likely feeling more concerned at this point).
If we still haven’t received any payment seven days after the third reminder, the debt will be handed over to a debt collection company (not a nice process, and one we’d love to avoid). If this does need to happen:
1. you will be responsible for paying all associated recovery and legal costs, including any and all collection costs, vouchers, commissions and legal fees; and
2. if the debt is still outstanding 60 days after the Due Date, you consent to the debt collection agency reporting the debt to credit reporting agencies.

(We’re sure you have every intention of paying us on time for the services we provide you, but we need to have this in here for those few naughty clients who unfortunately don’t pay their bills on time).

Late payments also attract an interest charge equal to 2% p.a. above the Reserve Bank cash target rate on the date of invoice on the amount you owe, calculated from the Due date until paid in full.

If payment is outstanding more than 7 days after the Due Date, we can suspend our services and all dates will be pushed back by the period of suspension.

(Nearly there… that was the longest one.)

The right content

Providing us with content

Depending on your project requirements, we will either need you to supply us with content, or we will be creating the content for you.

For digital projects utilising a Content Management Systems (CMS) we will provide you with basic training during the production of the platform, so that you know how to populate the site with dynamic content and imagery. This usually works out to be a more cost-effective way of doing things for you, however we can provide this service for you at an additional cost at our Standard Rates (we use the Administration rate for this work).

If you would like our help with content creation, we can complete the copywriting and other content creation for you. This will be an additional service charged at our Standard Rates unless we’ve specifically included it in the Proposal (we can provide a Fixed Fee or Estimated Cost if requested).

All copy needs to be supplied to us as final copy, unless otherwise agreed and specifically noted as draft copy by you. If any copy or artwork supplied by you is altered or edited post being supplied to us, we reserve the right to charge for the additional time (at our Standard Rates) spent altering files on our side to include the updated copy.

Proofing and liability

It is our responsibility to provide you with final proofing documents (hard copy or digital) for any work that is to be published either in print or digitally. We will need you to verify work as final and acceptable in all creative concepts, any copy, spelling, grammar, and free from any typographical errors. As standard procedure and a courtesy service (we can’t help ourselves) we will read through supplied copy and alert you to any errors we find, however, this is not a proof-reading service. If you require this, we can organise it for you through a third-party proof-reading service. The additional proof-reading fees will be charged as a Disbursement.

It is ultimately your responsibility to proof-read everything and anything that gets produced or published (online and/or offline). We do not accept liability for any error found after production or publishing has occurred if the proofing document has been approved by you, whether on the physical proof or in writing to us via email or fax.

Other bits

Our employees are ours to keep

We train and rely on our employees and contractors. We know they’re awesome. So, without prior written consent, during the term of the Project and for 12 months after the expiry or termination of the last remaining project we do for you, you must not (either directly or indirectly, including via a related body corporate) engage, employ or seek to engage or employ anyone who is employed or engaged by us.

Keeping lips sealed

We will not share or discuss any information of a confidential nature disclosed by you to us with any third party unless we have your approval in writing, or are required to do so by law. Equally, this document, as well as any other project plans, estimates, proposals, pitches, etc, that we supply you with must be treated as confidential.

Events outside a party’s control

Sometimes things just happen. If something happens that is outside either our or your control that stops that party performing its obligations (a Force Majeure, pronounced something like Fors Mah-zhoor, by the way) then those obligations are suspended for the duration of the Force Majeure and that party is not liable for the delay or non-performance. However payment for work completed before the suspension still has to be made.

What if we part ways?

Calling it quits

We love happy clients, and work hard to keep them that way. We hope you’ll become a happy, long-standing client of ours.

However, if you are not satisfied or no longer wish to continue with the Project, you have the right to terminate the Project at any time by telling us in writing. The project will be discontinued from the time you tell us in writing. Please keep in mind that if you do this, the paragraph in the “Payment Conditions” section on page 7 to do with Project cancellation will apply.

If a Force Majeure continues for 90 days or more or some other period specified in the Proposal, either party may terminate the Project and the paragraph in the “Payment Conditions” section on page 7 to do with Project cancellation will apply.

We have the right to cancel the Project immediately by letting you know in writing if

an invoice is not paid for 21 days or more after the Due Date;
you are in breach and do not rectify the breach 14 days of notice from us to do so;
you are placed under any form of insolvency administration, or have a receiver and/or manager appointed to your assets, or resolve to wind up, or have a creditor’s petition for winding up or bankruptcy presented, or enter into any arrangement with creditors or become insolvent or cease business (each an Insolvency Event).

In this event, you will be liable for payment of any services that we have provided to date.

Guarantee and Indemnity

Okay this one’s wordy and a little bit technical. Take a deep breath and read on.

In consideration of us agreeing to provide the Services to you, the person/s named as, and signing the signature page as, the guarantor (Guarantor) hereby unconditionally and irrevocably guarantees the due and punctual payment of all moneys owing or payable by you to us under this agreement. As a separate obligation the Guarantor unconditionally and irrevocably indemnifies us against any liability, loss, damage cost and expense incurred or suffered by us in connection with your breach of this agreement. The liability of the Guarantor is not affected by

any arrangement made with you or any other guarantor,
if you suffer any Insolvency Event or are wound up or go bankrupt,
the absence of notice to the Guarantor of the granting of further accommodation to you, or
any acts, omissions, delays or defaults by us that would otherwise discharge or affect the liability of the Guarantor

This guarantee and indemnity is a continuing guarantee and indemnity and is not discharged by any one payment or by statute.

The final touches

All notices must be in writing and may be sent by mail, by email at the address and/or email address noted for that party in the Proposal or such other address or number notified from time to time.

In this agreement:

If a party is more than one entity they are bound on their own and jointly with the other/s;
if a party gives the other party some slack or leniency it does not mean the right disappears;
Headings do not affect meaning;
Just because one party prepared this agreement doesn’t change the meaning or effect of the agreement;
If one part of this agreement is invalid it is to be ignored and does not affect the remainder of the agreement;
Expressions such as ‘including’ are not limiting;
NSW law governs this agreement and NSW courts have non-exclusive jurisdiction.

Okay, you made it! Thanks and we’re looking forward to working with you.