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Terms of Business

Background

A) These Terms govern the services provided by the Progressional, as specified in the Proposal.

B) You acknowledge that you have read and agreed to these Terms.

‍

Terms

1. Term

Unless otherwise specified in a Proposal, each Proposal: 

  • commences on the date the Proposal is accepted by you in writing; and 
  • expires on the estimated completion date specified in that Proposal or the date both parties have completed their obligations under that Proposal (whichever is later)

unless terminated earlier in accordance with the Agreement. 

2. Structure of Agreement

Unless otherwise specified in a Proposal, each Proposal: 

  • These Terms are to be read in conjunction with the terms of each Proposal.
  • Each Proposal forms a separate agreement governed by these Terms.
  • The following order of precedence applies in the event of an inconsistency:
    • a Proposal; and
    • these Terms.

3. Your obligations

3.1 General obligations

You must:

  • provide Progressional with clear, accurate, complete and up-to-date information and immediately notify Progressional if the information changes;
  • carry out your obligations under the Agreement in a timely and efficient manner;
  • do all things necessary to enable Progressional to perform its obligations under the Agreement, including providing Progressional or a third party identified by Progressional with the necessary access to your systems, data and Personnel (client/s); and
  • not make or publish any false, disparaging, malicious or defamatory statement (whether written or oral) about Progressional, its Related Bodies Corporate, the Personnel of any of those entities, or the Services.

3.2 Specific obligations

  • You must comply with:
    • the Agreement;
    • the reasonable directions, policies and procedures of Progressional or a third party identified by Progressional; and
    • all Laws and industry standards in your use of the Services and performance of your obligations under the Agreement.
  • You must provide Progressional with all information reasonably requested by Progressional, including, but not limited to, the following:
    • Personnel (client/s) information; and
    • information and documentation required for Progressional to conduct the Services.

4. Progressional obligations

4.1 Obligations

Progressional must:

  • use reasonable endeavours to provide the Services in accordance with this Agreement; and
  • provide the Services with reasonable care and skill.

4.2 Qualifications

The obligations under clause 4.1 will not apply in the event of:

  • any non-conformance which is caused, or contributed to, by your use of the Services contrary to Progressional's instructions or the terms of this Agreement; or
  • the unsuitability or malfunction of your network, systems, computer hardware or software.

4.3 Staffing

  • Progressional assigns its Personnel to the provision of the Services having regard to the fit with the Services you request and availability of such Personnel.
  • If, in any Proposal, Progressional lists the core Personnel that it expects to be assigned to the Services, Progressional may, at any time, replace or add other Personnel not listed in such Proposal (whether special expertise or additional assistance is required or otherwise).

5. Forecasts

  • Any analyses, forecasts or recommendations provided to you by Progressional are made in good faith based on the information provided to Progressional at the time of engagement.
  • The preparation and implementation of such analyses, forecasts and recommendations depend largely on the effective cooperation and ability of you.
  • The estimated completion date is given on the assumption that Progressional will receive your full cooperation.

6. Exclusivity

You must not engage, or use services from, a third party that are the same as, or substantially similar to, the Services, during the Term, without the prior consent of Progressional. The parties acknowledge that this requirement is reasonable and necessary for the protection of Progressional’s legitimate business interests.

7. Fees

7.1 Payments

‍You must comply with:

  • you must pay the Fees as specified in the relevant Proposal.
  • The Fees are payable in Australian dollars within 14 days of the invoice date, unless otherwise agreed between the parties.
  • If you fail to pay the Fees by the due date, or any other amounts owing to Progressional, Progressional may: 
    • charge interest on the outstanding amount at the Interest Rate;
    • suspend further performance of the Services under the relevant Proposal;
    • set off the outstanding amounts against any amounts owed to you by Progressional under the relevant Proposal or any other Proposal; and
    • terminate the relevant Proposal.
  • Personnel (client/s) information; and
  • Any out of pocket expenses are invoiced to you separately when reasonably incurred by Progressional.

7.2 GST

  • A reference in this clause to a term defined or used in A New Tax System (Goods and Services Tax) Act 1999 (Cth) is a reference to that term as defined or used.
  • All amounts in the Agreement are exclusive of GST, unless otherwise specified.
  • If GST is imposed on a supply made under, or in connection with, the Agreement, the recipient of the supply must pay Progressional an amount equal to the GST payable on the supply in addition to, and at the same time as, any consideration for the supply.

8. Intellectual Property

8.1 Progressional IP

  • Progressional owns the Progressional IP. 
  • Subject to Progressional’s receipt of the Fees, Progressional grants you a non-exclusive, revocable, non-transferrable and non-sub-licensable licence to use the Progressional IP for the purpose of performing your obligations under this Agreement.

8.2 Customer IP

  • You own the Customer IP.
  • You grant to Progressional a royalty-free, worldwide, non-exclusive, non-revocable, perpetual, transferrable and sub-licensable licence to use the Customer IP for the purpose of performing its obligations under this Agreement.

8.3 Developed IP

  • Progressional owns the Developed IP. 
  • Subject to Progressional’s receipt of the Fees, Progressional grants you a non-exclusive, revocable, non-transferrable and non-sub-licensable licence to use the Developed IP for the purpose of performing its obligations under this Agreement.

8.4 Third Party IP

  • You acknowledge that the Services may include Third Party IP and your rights to use the Services is subject to the Third Party IP. 
  • Any rights you may have to access Third Party IP is limited to: 
    • the extent of Progressional’s ability to license such rights to you; 
    • its ability to pass on such rights to you; and
    • the relevant Third Party IP usage terms or licence.
  • Except as expressly stated in this Agreement, you obtain no right, title or interest in the Third Party IP.
  • It is your responsibility to determine that specific services, introduced or used by you: 
    1. meet the needs of your business or requirements; and 
    2. are suitable for the purposes for which they are used.

8.5 Right to Publish

You grant Progressional permission to use and publish your name, logos and trade marks, together with reference to the fact that you are a customer of Progressional, in any medium.

9.0 Licence for Customer Data

9.1 Licence and ownership

  • You retain ownership of the Customer Data and will have sole responsibility for its legality, reliability, integrity, accuracy and quality. 
  • You grant Progressional a worldwide, non-exclusive, royalty-free, perpetual, transferable, sub-licensable licence to use, disclose, reproduce, store, distribute, publish, export, adapt, edit, translate, produce derivative works from or copy the Customer Data for the following purposes:
    • enabling Progressional to perform its obligations and exercise its rights under this Agreement; and
    • sharing Customer Data with a third party for the purposes of performing or improving the Services.
  • Progressional will not pre-screen, monitor, vet or edit any Customer Data, unless required to do so under any Law.

10. Personal Information and other sensitive data

  • Data comprising Personal Information or that is otherwise sensitive information:
    • it has been collected in accordance with your own privacy policy and applicable Privacy Laws; and
    • you have obtained all necessary approvals and consents to grant Progressional the licence in clause 9.1(b), or to make such information available to Progressional for its internal business use purposes.
  • Progressional warrants that, in relation to any Customer Data comprising Personal Information or that is otherwise sensitive information:
    • Progressional will keep all discussions had during the provision of the Services confidential, except as required by Law or with your express consent; and
    • if you disclose an intent to harm yourself or others, Progressional’s ability to maintain confidentiality will be limited, as yours, and others health, is always the first priority of Progressional.

11. Warranties

  • You warrant on a continuing basis that:
    • the use of the Customer IP by Progressional will not infringe any Third Party IP; 
    • you have received all consents required to allow Progressional to freely use the Customer IP without infringing any third party's rights, including Moral Rights; and
    • you will use the Services in accordance with any usage restrictions specified in the Agreement or by Progressional or a third party identified by Progressional. 
  • You warrant that you will be responsible for: 
    • all acts or omissions of each of your Personnel (client/s), and will ensure they are aware of the applicable provisions of this Agreement; and
    • all Claims made by, and Losses arising from, each of your Personnel (client/s) in relation to these Terms (directly or indirectly).

12. Liability and indemnity

12.1 Liability

  • The Services do not comprise medical advice or a medical diagnosis, nor should they be considered therapy, counselling or a substitute for professional mental health or medical services. 
  • Progressional are not licensed therapists, psychologists or psychiatrists, counsellors, lawyers or financial advisors. Instead, when Progressional provides the Services, it will focus primarily on career-related issues. Progressional will at times, as part of its process, suggest you contact a professional in these fields to receive expert and specific advice. However, Progressional recognise that you are ultimately responsible for, and will make your own independent decisions, around engaging with these practitioners or professionals. 
  • You acknowledge that the Services are a guide only and do not constitute and should not be considered as a substitute for a medical diagnosis, provision of medical or health advice, (or any similar function). 
  • While Progressional provide guidance, you must take active steps to achieve your objectives. 
  • You should also not disregard, or delay seeking, professional medical or health advice due to the services we provide.
  • To the fullest extent permitted by Law, Progressional: 
    • excludes all express or implied representations, conditions, statutory guarantees, warranties and provisions (whether based on statute, common law or otherwise), in connection with the Agreement; and
    • is not liable for any Loss to property or damage suffered as a result of, or associated with, the Agreement (including personal injury, illness or death), to the extent permitted at Law.

12.2 Consequential Loss

Neither party is liable for Consequential Loss suffered by the other party or a third party which arises out of, or in connection with, the Agreement or any Proposal.

12.3 Release

You release, and hold Progressional harmless, from Claims and Losses arising out of, or in connection with, your participation in the Services (including personal harm, injury, infliction, abuse, illness, mental illness, suicide or death), and arising out of, or in connection with, the Agreement, to the extent permitted at Law or any Proposal.

12.4 Survival

This clause 12 survives termination of this Agreement

13. Termination

13.1 Termination of a Proposal

  • Either party may terminate a Proposal or this Agreement by giving 30 days' notice to the other party.
  • Either party may terminate a Proposal or this Agreement with immediate effect if the other party:
    • commits a material breach of the Proposal or this Agreement (including a failure to pay any Fees) that is incapable of remedy; 
    • commits a material breach of the Proposal or the Agreement (including a failure to pay any Fees) that is capable of remedy and fails to remedy that breach within 10 Business Days of receiving notice of the breach; or
  • suffers an Insolvency Event (and the Corporations Act (Cth) 2001 does not prevent termination).

13.2 Termination of these Terms

On termination or expiry of all Proposals, this Agreement will come to an end.

13.3 Effect of termination

  • Termination of a Proposal will not affect any other Proposal in effect at the time of termination, including for any prior breach.
  • On termination: 
    • all licences and rights granted under, or in connection with, the applicable Proposals will immediately terminate; and 
    • you must pay any outstanding amounts owing under that Proposal to Progressional within 7 days after termination and you will not be entitled to a refund of any portion of Fees which have been paid to us to date. 
  • On termination, you must: 
    • immediately stop using the Progressional IP and Developed IP; and
    • permanently destroy or return all copies of the Confidential Information of Progressional on request, and certify to Progressional that you have done so. 

13.4 Acknowledgement

You acknowledge that clause ‎13.3 of this Agreement:

  • is reasonable and necessary to protect Progressional’s proprietary and legitimate, commercial interests; and
  • contains usual covenants within the field of activities of Progressional.‍‍Conidential Information

14 Confidential Information

14.1 Confidentiality obligations

A Receiving Party must:

  • maintain the confidentiality of the Confidential Information and not disclose it, or allow it to be disclosed to a third party, except:
    • where expressly permitted to do so under the Agreement or a Proposal;
    • with the prior express consent of the other party; 
    • to its officers, employees or legal advisers who have a need to know for the purposes of the Agreement and are aware the Confidential Information must be kept confidential; or
    • as required by applicable Laws; and
  • take reasonable precautions to maintain the secrecy and confidentiality of the Confidential Information.

14.2 Exceptions

The confidentiality obligations do not extend to information: 

  • disclosed to a party which, at the time of disclosure, is rightfully known to or in the possession of that party and not subject to an obligation of confidentiality on that party;
  • that is public knowledge (except because of a breach of this Agreement or any other obligation of confidence); or
  • required to be disclosed by any applicable Laws or any Government Agency, or for the enforcement of this Agreement, 

whether before, on, or after the Agreement Date.

14.3 Damages inadequate

Each party acknowledges that: 

  • damages may be an insufficient remedy for a breach or suspected breach of this clause 14 by the Receiving Party; and 
  • the Disclosing Party may seek equitable relief (including interim or injunctive relief) as necessary to remedy or prevent the breach, without having to prove any special damage arising from the breach or suspected breach.

14.4 Survival

This clause 14 survives termination.

15. Privacy

  • Each party must comply with Progressional’s privacy policy and all applicable Privacy Laws in relation to Personal Information provided or made available to it under the Agreement. 
  • You warrant that: 
    • you have obtained the necessary consents to disclose the relevant Personal Information to Progressional and permit Progressional to use the Personal Information under the Agreement; and 
    • the owners of the Personal Information are aware that Progressional may use and disclose their Personal Information in accordance with the Agreement. 
  • You must immediately notify Progressional and provide sufficient details if any consent referred to in clause 15(b) is withdrawn. 
  • You must keep adequate records of your compliance with this clause 15. 
  • You must immediately notify Progressional if you become aware of a privacy complaint or an allegation of a breach of any applicable Privacy Laws by any person, or a privacy related investigation or enforcement action by a Government Agency, in connection with the Agreement. 

16. Independent legal advice

Each party warrants that it has, and in the case of the Customer, ensured that its Personnel (client/s) has:

  • been given an adequate opportunity to read this Agreement; 
  • understood the extent and nature of its obligations under this Agreement before executing it; and
  • received independent legal advice about this Agreement or otherwise waived its rights to do so.

17. Notices and electronic communications

17.1 Notices

A notice, consent, agreement, approval, waiver, direction or similar given or required under this Agreement:

  • must be in writing, in English and signed by, or sent by email from, a person authorised by the sender;
  • must be delivered to the recipient in person or by email or registered post to the email or address in the party details section of the relevant Proposal, or as otherwise notified by the receiving party; and
  • is deemed to be given by the sender, and received by the recipient:
    • if delivered in person, on delivery;
    • if sent by email, at the date and time the email was sent, as recorded by the sender’s email server, unless the sender receives an automated delivery failure notice, in which case notice is deemed not to be given or received; or
    • if sent by registered post, 5 Business Days (or 10 Business Days, if posted outside Australia) after the date it was posted.

17.2 Electronic communication

The parties consent to giving and receiving notices electronically.

18. General

18.1 Authority

Each party warrants it has the authority to enter into, and perform its obligations under, the Agreement including giving all consents, rights or powers.

18.2 Entire agreement

The Agreement constitutes the entire agreement between the parties in relation to, and supersedes any prior conduct, arrangement, agreement or understanding of, its subject matter.

18.3 Relationship of parties

  • Unless otherwise provided in this Agreement, no party is authorised to bind another party. 
  • Nothing in this Agreement or any Proposal creates an employment, agency, trust, partnership, fiduciary or joint venture relationship between: 
    • Progressional and the Customer; or
    • Progressional and any of the Customer’s Personnel (client/s) (or their heirs or executors).

18.4 Set off 

If any part of the Agreement is or becomes invalid or unenforceable under any law, it is severed in the relevant jurisdiction but only to the extent it is invalid or unenforceable.

18.5 Severability 

  • Progressional may set off amounts owed or payable under the Agreement or any Proposal against amounts payable to you.
  • Without limiting clause 18.4(a), Progressional may, acting reasonably, offer you credit note to be set off against Services to be provided by Progressional to you, provided it does so within 12 months of the date of the credit note. If the Agreement is terminated prior to the end of that 12 month period, the balance of the credit note will be immediately foregone.

18.6 Approvals and consent 

Except as set out in the Agreement, a party may: 

  • give or withhold approval or consent at that party’s discretion; and 
  • give approval or consent subject to conditions.

18.7 Variations 

The Agreement may only be amended or replaced by a written agreement, signed by all parties.

18.8 Waivers

A waiver of a right, power or remedy must be signed by the party giving it and cannot be implied by conduct, delay or failure to act.

18.9 Counterparts and execution

  • Any subsequent variation to the Agreement or a Proposal, may be signed in counterparts.
  • All documents, or counterparts, may be signed electronically via DocuSign or QWILR or similar platform.  
  • All signed counterparts, together with any electronic transaction record, together constitute 1 document. 

18.10 Survival

Each obligation and warranty capable of future operation will continue in force after the Agreement or each Proposal is fully performed or has otherwise ended.

18.11 Governing law and jurisdiction 

  • The Agreement is governed by the laws in force in Victoria, Australia.
  • Each party irrevocably submits to the exclusive jurisdiction of courts exercising jurisdiction in Victoria, Australia and waives any right to claim that those courts are an inconvenient forum.

19. Definitions and interpretation

19.1 Defined terms

Agreement means these Terms, the applicable Proposal and any other document referenced in those documents.

Agreement Date means the date the Proposal is signed by you.

Applicable Law means any law, regulation, mandatory guideline or standard, ordinance, court ruling or requirement or direction of a Government Agency, or similar, in any jurisdiction in which the Agreement is performed, or governing the Services or a party to the Agreement anywhere in the world.

Business Day means a day that is not a Saturday, Sunday or gazetted public holiday in Melbourne, Victoria, Australia.

Claim means any claim, demand, remedy, suit, action, proceeding, right of action, claim for compensation or claim for abatement of any monetary obligation, whether arising under contract (including the Agreement), in tort (including negligence), at common law, in equity, under statute, under an indemnity or otherwise.

Confidential Information means, in relation to a Disclosing Party:

the following information, regardless of its form and whether the Receiving Party becomes aware of it before, on or after the Agreement Date: 

  • information that is, by its nature, confidential; 
  • information that the Disclosing Party designates as confidential; or 
  • information the Receiving Party knows, or ought to know, is confidential; 
  • all notes and other records prepared by the Receiving Party based on or incorporating information in clause (a) above; and
  • all copies of the information, notes and other records in clauses (a) and (b) above, 

and in the case of Progressional, includes Progressional IP, Developed IP and Third Party IP. 

Consequential Loss means any of the following, however arising and even if it is reasonably contemplated by the parties at the Agreement Date:

  • incidental, special, remote or unforeseeable loss;
  • loss of revenue, profit, income, bargain, opportunity, use, customers or clients, uptime, business, contract, goodwill, or anticipated savings, loss or corruption of data, loss of use of data, loss caused by business interruption, or the cost of obtaining new financing or maintaining existing financing, but excluding loss of any amounts that, other than for the act or omission of a party, would have been payable under the Agreement;
  • costs or expenses incurred to prevent or reduce loss or damage which otherwise may be incurred or suffered by a third party; or
  • loss or damage set out above in paragraphs (a) to (c) that is incurred or suffered by or to a third party.

Customer means the party named as the customer in the Proposal (such party may also be referred to as ‘you’ in the Agreement).

Customer Data means all information and data (including Personal Information): 

  • uploaded, submitted or otherwise made available by you; or
  • supplied by you to Progressional. 

Customer IP means all Intellectual Property owned or licensed by you, and includes any enhancements, modifications or derivatives of the Customer IP made after the Agreement Date, and excludes the Developed IP.

Developed IP means all Intellectual Property created or developed by Progressional under the Agreement, and excludes the Progressional IP.

Disclosing Party means a party to this Agreement who discloses or makes available Confidential Information to the Receiving Party.

Fees means any fees payable by you for the Services under the Agreement.

Government Agency means any governmental, judicial or statutory body with authority or jurisdiction over the Agreement or a party.

Insolvency Event means any of the following:

  • a receiver, receiver and manager, liquidator, provisional liquidator, controller or any form of external administrator has been appointed over either party or any property belonging to either party;
  • an event occurs which gives any person the right to seek an appointment referred to in paragraph (a);
  • a party proposes or takes any steps to enter into a scheme, arrangement, agreement or compromise with its creditors or call a meeting of creditors;
  • a party suspends payment of its debts generally;
  • a party becomes bankrupt or insolvent within the meaning of the Corporations Act 2001 (Cth) or a party has a bankruptcy petition presented against it; or
  • an application is made to a court or a resolution is passed or an order is made for the winding up or dissolution of a party or an event occurs that would give any person the right to make an application of this type.

Intellectual Property means all designs, copyright, trade marks, patents, operations, software or systems, trade names and domain names, rights in goodwill, rights in Confidential Information or other intellectual property rights, whether under statute, common law, equity, and whether registered or unregistered and including all applications for, and renewals or extensions of, such rights and all similar rights which subsist or will subsist now or in future in any part of the world.

Interest Rate means interest at the rate of 2% above the rate fixed under section 2 of the Penalty Interest Rates Act 1983 (Vic).

Laws means any applicable rules of common law, principles of equity, international, federal, state and local laws, statutes, rules, regulations, proclamations, ordinances and by-laws and other subordinate legislation, rulings or legal requirements anywhere in the world, including Privacy Laws. 

Loss includes any loss, cost, expense or damage, regardless of whether it is:

  • direct or indirect;
  • present or future;
  • fixed or ascertained; or
  • arising by Law,

including Consequential Loss.

Moral Rights has the meaning given in the Copyright Act 1968 (Cth) (or equivalent legislation).

Personal Information means information by which a person may be personally identified, including a person's name, postal address, email address, phone number and any other information a person collects, including sensitive health information, personal or personally identifiable information under applicable Privacy Laws.

Personnel means a party's directors, officers, employees, agents, consultants, contractors, sub-contractors or anyone else nominated by you. 

Privacy Laws means applicable privacy data protection and anti-spam laws, rules, regulations, best practices and regulatory guidance, including the Privacy Act 1988 (Cth) and any other equivalent Law.

Progressional IP means all Intellectual Property owned or licensed by Progressional and all modifications, enhancements, derivations and updates to it, including the Progressional Marks.

Progressional Marks means the trade marks, trading names, logos, slogans, corporate or business names and other similar indicia of origin of Progressional (whether registered or unregistered), including the word ‘Progressional’ and the logos of Progressional depicted in the header of this Agreement and on its website from time to time.

Proposal means a proposal issued by Progressional to you under these Terms and executed by you, which document is headed ‘Progressional Proposal’.

Receiving Party means a party to the Agreement who obtains Confidential Information of the other party to the Agreement.

Related Bodies Corporate has the meaning in the Corporations Act 2001 (Cth).

Services means the services to be provided by Progressional to you or your Personnel in a Proposal.

Terms means these Terms of Business.

Third Party IP means any Intellectual Property owned or licensed by a third party.

19.2 Interpretation

In the interpretation of the Agreement, unless stated otherwise:

  • a reference to AUD, $A, dollar or $ is to Australian currency; 
  • a reference to a party is to a party to the Agreement and includes the party’s Personnel, successors and permitted transferees and assigns and if a party is an individual, includes executors and personal legal representatives;
  • a reference to a person includes a natural person or legal entity;
  • a reference to time is a reference to time in Victoria, Australia;
  • if an obligation must be performed or an event must occur on a day that is not a Business Day, the obligation must be performed or the event must occur on or by the next Business Day;
  • an obligation or liability assumed by, or a right conferred on, 2 or more parties binds or benefits them all jointly and severally;
  • words such as 'including' or 'for example' do not limit the preceding words;
  • all grammatical forms of defined terms have a corresponding meaning; 
  • singular includes the plural and vice versa;
  • a provision of the Agreement must not be construed against a party on the basis that party was responsible for preparing it; and
  • the main body of the Agreement will prevail to the extent of any inconsistency with any other part of the Agreement.