Valid from October 2021

1. Specifications

This Agreement provides a scope of works and costs (including estimates where applicable) of all the requirements for the services to be provided. Development and functional specifications for the services are set out in the Scope of Works and/or form part of the services to be provided under this Agreement.


2. Project Description

The project description is set out in the Scope of Works.


3. Scope of Works

Engage Squared will provide the deliverables as set out in the Scope of Works in the manner prescribed in this Agreement.


4. Charges and Costs

Engage Squared shall charge you, and you will pay, the charges and costs set out in this Agreement.

Unless otherwise specified in the SOW:

  • For charges described as Time & Materials, Engage Squared will issue invoices monthly in arrears, on the first day of each month.
  • For charges described as Fixed Price, Engage Squared will issue an invoice for 50% of the project charges at commencement of this Agreement and the balance 50% at the start of the warranty period, or upon completion of the project, whichever is earlier.


5. Timeframe

Engage Squared shall use reasonable efforts to adhere to the project timeline for completion comprised in the Scope of Works.

Engage Squared will not be liable for any delay or failure to perform its obligations if this is as a result of circumstances or events that occur or arise that are out of Engage Squared’s control. If such a delay or failure occurs, you are only entitled to terminate the Agreement in writing if such delay or failure exceeds 60 days from the due date for delivery or performance of the obligations specified in the Scope of Works and you must make payment to Engage Squared for the services that have been provided to the effective date of termination.


6. Process

The Project Approach set out in the Scope of Works is intended as a guideline to the provision of services and Engage Squared may, with your prior agreement, vary the Approach.


7. Duration

This Agreement will commence on the date of signing of this Agreement and will continue in effect until completion of the Services, or until otherwise terminated under the Agreement whichever is the earlier.


8. Additional Services

Engage Squared reserves the right to charge you in addition to the charges and costs set out in the Scope of Works if the scope changes and/or you require and/or request the provision of additional services.


9. Payment

The charges and costs set out in this Agreement are payable as prescribed in the Scope of Works. Payment may be made by direct debit or cheque or by credit card (a credit card processing fee of 2.6% is payable).

All payments are charged exclusive of GST, which must be paid in addition to and the same time as the charges and costs.

You agree to make such payment within 30 days after the issue of a tax invoice to you. All invoices are payable within 30 days of the date of invoice. Where invoices remain unpaid and overdue, Engage Squared may suspend all work and services until payment is made.

If you fail to pay an invoice by the date it is due and payable, we reserve the right to:

  1. charge interest on such sum on a day to day basis from the date or last date for payment thereof to the date of actual payment (both date inclusive) at the rate of 2% above the base variable home loan lending rate of the National Australia Bank from time to time in force and compounded quarterly; and
  2. charge you our debt recovery fees, including but not limited to, solicitors fees (on a full indemnity basis), court costs and collection agency fees.

All source code and files and templates created by Engage Squared remain the property of Engage Squared and may not be used by you until full payment is made.


10. Intellectual property rights

Each party will retain all interest in and ownership of its intellectual property rights existing prior to, or developed outside the scope of, this Agreement, including any modifications, developments or improvements to such intellectual property rights. Nothing in this Agreement transfers or grants to a party any right, title or interest in or to any intellectual property rights in any services, deliverables, or both, procured and supplied under this Agreement, unless the parties expressly agree in writing to the contrary.

Engage Squared grants you a worldwide, royalty-free, perpetual, non-exclusive, non-sublicensable, and non-transferable right and licence to use our intellectual property rights that we make available, develop, adapt, modify, or create (for the purpose of providing the services and deliverables under this Agreement), if and to the extent necessary to enable you to receive the services, use the deliverables, for your direct internal business purposes, but for no other purpose. You grant us a worldwide, royalty-free, non-exclusive, non-sublicensable, and non-transferable right and licence, for the duration of this Agreement, to use your intellectual property rights to the limited extent required for the performance of our obligations under this Agreement.


11. Confidential Information and Privacy

Engage Squared will not use or disclose any personal and sensitive data and information (“Confidential Information”) for a purpose other than discharging our obligations in the provision of services to you and this may include at our discretion divulging Confidential Information to contractors who may be engaged by Engage Squared, and as required by law.

Engage Squared will take all reasonable steps to protect Confidential Information in our possession against misuse or loss and will return all such information to you (or destroy or re-identify if requested by you) at the completion or termination of our services. You permit and authorise Engage Squared to publish, display and feature designs and other services provided to you for marketing purposes for Engage Squared.


12. Varying the services

If either party wishes to vary a Statement of Work they must provide the other party with a notice in writing of the proposed variation/s to the Statement of Work (Change Request);

  • within 5 Business Days after receiving the Change Request (or within another period agreed by the parties) the other party must respond by notice in writing (Response) specifying what impact the variations will have on:
    • the charges and costs;
    • the specifications; and
    • any milestones or performance criteria.
  • within 5 Business Days after receiving the Response (or within another period agreed by the parties) the other party must give notice in writing accepting or rejecting the Response.


13. Termination

Subject to this clause you may postpone or terminate this Agreement by providing 30 days’ written notice.

In the event of the postponement or termination of this Agreement by you at any time prior to completion, Engage Squared is entitled to charge you for work and services undertaken and performed (irrespective of delivery of any services to you) up to the effective date of the postponement or termination and Engage Squared is entitled to apply monies paid by you at commencement (if any) to set off amounts owing by you.

Either party may at its sole discretion terminate this Agreement effective immediately if at any time the other party:

  • breaches any of the terms of this Agreement;
  • fails to comply with a material provision of this Agreement which cannot be remedied, or which can be remedied but fails to remedy that breach within 7 days of a written request from the other party to do so; or
  • engages in conduct which may reasonably bring the reputation of the other party into disrepute; or
  • becomes bankrupt or goes into administration or liquidation or makes a composition or arrangement with its creditors generally, or
  • abandons or repudiate this Agreement, or otherwise refuse to co-operate and respond to contact.

Termination of the Agreement by Engage Squared will not prejudice any rights or remedies already accrued under, or in respect of any breach of, this Agreement prior to Termination.


14. Return of Documents

Engage Squared will return any documents and property and other materials provided and/or obtained from you (excluding any copies of such documents and materials produced by Engage Squared at its own expense) upon demand by you as soon as such documents and other materials or any of them are no longer required by Engage Squared for the performance of the Services.


15. Non Solicitation

For a period of 6 months after termination of this Agreement, you must not without the written permission of Engage Squared either directly or indirectly at any time canvass or solicit or engage in discussions with or contact any person who is at the date of termination, or who was in the 6 months prior to termination, a client, customer,  employee,  contractor, supplier or partner or otherwise engaged by Engage Squared for the same or similar services to those services supplied to you by Engage Squared in the 6 months prior to termination.


16. Limitation of Remedies and Liability

Nothing in this these terms or the Statement of Work shall operate to exclude either party’s liability for death or personal injury caused by its negligence, fraud or any other liability which cannot be excluded or limited under the applicable law.

Our liability to you in connection to this Agreement is limited to direct loss, and capped at an amount equal to the fees paid by you under this Agreement in the 12 months prior to a claim arising.

Notwithstanding anything else in this Agreement and to the maximum extent permitted by law, under no circumstances whatsoever shall a party be liable to the other party for any economic, special, indirect or consequential loss or damage, including loss of revenue or loss of profit or anticipated profit, loss of product or production, or loss of use, arising out of or in connection with the Assignment, even if due in whole or in part to a negligent act or omission of that party.

Without limiting any other term of this Agreement you indemnify us against all loss or damage which we may incur as a result of any breach by you of your obligations under this Agreement. This includes but is not limited to our legal costs on an indemnity basis. These indemnities shall remain in force after the termination of our engagement.

The indemnity in this clause will remain in force after the termination of our engagement, regardless of the reason for which it came to an end.


17. Entire Agreement

This agreement is the entire understanding of the parties and there are no promises, terms, conditions or obligations, oral or written, express or implied other than those contained in this Agreement.


18. Law

This agreement is governed by the laws of the Victoria.


19. Amendment

This Agreement and the Scope of Works may not be varied except by agreement in writing signed by both parties.


20. Warranty

Our work is covered by a warranty, which covers defects or malfunctions in the delivered solution. During the warranty period, we ensure that the solution meets the specified requirements that are agreed in the project proposal and project artefacts.

Within the scope of your project, we have included the following activities:

  • Warranty period for a duration of one calendar month (Our standard warranty can be extended for an additional charge)
  • Commences on the day that the solution is launched to end users, or 6-weeks after UAT completion, whichever comes first

Engage Squared will fix any defect which is reported to us within the warranty period. A defect means:

  • A system component which is not working as per the agreed solution design document (SD) or SOW or,
  • A document deliverable which does not match the acceptance criteria described in the SD (or SOW, if no SD)

Warranty is included in the budget for Fixed Price projects. For Time and Materials projects, effort expended during the warranty period will be charged to you if there is budget remaining in the approved project budget.

Defects that are reported within the warranty period will be fixed within a period of time agreed with you; due to the time needed to resolve issues, defects may not be fixed within the warranty period itself.