Consulting Terms & Conditions

1       Consulting Commercial Models

Kinetic Wizard offers two Consulting Commercial Models supported by different methodologies, depending on the services required. Each Commercial Model has its own set of terms and conditions.  The Consulting Commercial Models are as follows:

      1.1       Time and Materials

Time and Materials is a flexible model with a flexible budget and a lightly defined Scope of Works, where Client (you) pays for all time spent on a progressive basis.

In a Time and Materials engagement, Change Management is light as the scope of work has not been documented in detail prior to project commencement. This model works well for clients who wish to have flexibility of scope for its engagement; typically for work that is of a consultative nature, for resource augmentation or for undertaking smaller ad-hoc pieces of maintenance. Integration and data migration are usually undertaken as Time and Materials as this often involves working with third-party vendors where Kinetic Wizard may not have full control of the code base or the dataset.

The principles of a time and materials engagement are:

  • Scope is agreed at a high level but can change throughout the project at Client’s request.

  • Budget is agreed but owned by Client.

  • Kinetic Wizard will provide regular updates on progress against the budget.

  • Kinetic Wizard will not include any contingency in its estimates.

  • Client should include a contingency in its budget; and

  • Modifications and additional complexity are agreed through regular meetings which may impact price and schedule.

      1.2      Fixed-Price

Fixed-Price projects have a set scope and budget; requirements and/or deliverables must be fully defined prior to project commencement. Client pays the Fixed-Price price for the pre-defined and documented scope.

In a Fixed-Price engagement, Change Management is heavily monitored, and all new or modified requirements will require approval of a Change Request, which may impact price and schedule.

The principles of a Fixed-Price engagement are:

  • Scope is agreed and it is Kinetic Wizard’s responsibility to manage the time and scope.

  • Budget is agreed and owned by Kinetic Wizard.

  • Kinetic Wizard will provide regular updates on progress against the Scope.

  • Kinetic Wizard will include a contingency in its estimates and within the budget.

  • Client should include a contingency in its budget, particularly for any unforeseen changes or delays.

  • Client delays impacting delivery are subject to a change request and may impact the budget and time.

  • Any work not defined in the Scope of Works and budget is deemed to be out of scope; and

  • Changes are agreed through a formal Change Management process, and the price and schedule may vary to reflect any change agreed under the Change Management process.

      2     Terms and Conditions

      2.1      Goods & Services Tax

2.1.1         All prices are exclusive of GST, which is to be added to the payments for remittance to the Federal Government by Kinetic Wizard.

2.1.2        If a party makes a taxable supply under or in connection with this Agreement, the other party must pay to the supplier at the same time, and in addition to the GST-exclusive consideration, an amount equal to the GST payable on that supply.

2.1.3        Kinetic Wizard must, as a precondition to the payment of GST under clause 2.1.2, give Client a tax invoice.

2.1.4        If an adjustment event arises in connection with a supply made under this Agreement, Kinetic Wizard must give Client an adjustment note in accordance with the GST law.

2.1.5        For the purposes of this clause:

  • GST has the meaning it has in the GST Act.

  • GST Act means the A New Tax System (Goods and Services Tax) Act 1999 (Cth); and

  • GST law has the meaning given to that term in the GST Act.

      2.2     Commencement

Unless otherwise agreed, Kinetic Wizard will commence work under each Commercial Model within 10 business days following receipt from Client of an executed Statement of Work and the agreed deposit or initial invoice p payment or, where applicable, a Purchase Order.  

      2.3     Invoicing

2.3.1       Time and Materials

All Payroll Invoices are due for payment on being received. There are strictly no payment terms for Payroll services. Failure to settle the payroll services invoices will result in services being halted until payment is received in full.

Following the payment of deposit or commencement invoice, remaining work will be invoiced as used on a weekly basis with timesheets available on request. Generally, invoices will only be submitted if more than one day of billable work is performed, except for the final invoice.

All work performed by Kinetic Wizard staff is chargeable in 30-minute increments, including but not limited to development work. Defects, natural rework and new scope will require additional budget and no User Acceptance Testing or Warranty period is included without charge. For Project based Time and Materials work a recommended UAT and Warranty period and budgetary provision will be supplied within the Statement of Work and any defects or natural rework found in these periods can be resolved against this provision on a time and materials basis

Estimates are provided by Kinetic Wizard as a guideline only, are non-binding, and in no way, constitute any offer to enter a fixed-cost arrangement. Upon utilising 70% of the allocated budget, Client will be notified if further budget is required in order to complete the advised scope of work in advance of the work being performed.

 2.3.2      Fixed-Price

For Fixed-Price engagements a payment schedule will be provided within the Statement of Work for each project. Invoices will be due at incremental points throughout the project as per the schedule. The minimum engagement for a Fixed-Price project is the whole phase of a project.

      2.4     Invoice Payment

All payment terms are seven (7) days from the date of the invoice except where noted. At the time of issuing an invoice to Client, Kinetic Wizard will request that Client formally accepts receipt of the invoice, in writing. Electronic documents including email are an acceptable medium through which Client may indicate acceptance. Client agrees that acceptance of invoices will not be unreasonably withheld. This acceptance does not hinder Client’s right to claim against defects during the period of the project lifecycle (in the case of Fixed-Price projects).

If Client has any queries relating to an invoice, Client will bring them to Kinetic Wizard’s attention immediately upon invoice receipt. If problems arise at any stage that could potentially prevent payment, Client will inform Kinetic Wizard as soon as possible so that both parties are aware of the circumstances and can work towards alternative arrangements. Kinetic Wizard will request a formal acceptance, in writing, of each invoice at every payment point as an indication of acceptance of the work provided. Further work will not continue until each invoice has been accepted.

If payment is not received within seven (7) days of the invoice date without prior arrangement with Kinetic Wizard, Kinetic Wizard will suspend work on the project until payment is received, and resources become available again.

Kinetic Wizard will invoice Client any reasonable and mutually agreed travel and incidental expenses, if such travel or incidental activity is requested by Client. Payment terms for these invoices are seven (7) days except where noted.

      2.5     Termination

Client can terminate a Statement of Work without cause at any time during the term of any Statement of Work on giving appropriate notice period as specified in the Commercial Model selected by Client for the Statement of Work for that project.

2.5.1       Time and Materials

For Time and Materials work, a two-week notice period is required for any deviation or termination to the agreed period of each Statement of Work.

2.5.2      Fixed-Price

For Fixed-Price engagements, a one-month notice period must be provided for any deviation or termination to the agreed period of each Statement of Work.

2.5.3      Termination Costs

Client agree to pay for any costs that Kinetic Wizard cannot reasonably defray at time of termination by Client.

      2.6     Continuity of Work

In this document ‘force majeure’ means Act of God, war, fire, flood, embargo, strike, lockout, litigation, act of government or any agency thereof or any other cause beyond the control of a party.

In the event of force majeure, the time for performance of an obligation will be extended by the same period for which performance is delayed. The party so affected will use its best endeavours to avoid or remove such causes of non-performance and will continue performance with the utmost despatch as soon as the causes are removed.

Continuous interaction between Kinetic Wizard and Client is needed to guarantee success of the project. Should any work be delayed or suspended for reasons outside of Kinetic Wizard’s control, excluding reasons due to a Force Majeure Event, Kinetic Wizard may claim a price variation as compensation for overhead recovery, re-establishment and other sources of inefficiency and loss in order to complete the work. Kinetic Wizard will provide Client due notice and time to remedy any such delay. This variation will need to be agreed upon by both parties before the project continues.

      2.7     Documentation

All significant decisions made between Client and Kinetic Wizard should first be agreed upon verbally (either via phone call and/or face-to-face meeting) then must be followed up in the form of written documentation, whether that is stored in a document or via email. Any verbal communication between Kinetic Wizard and Client is non-binding.

Solution documentation is not included in the deliverables unless specifically identified in the Statement of Work.

      2.8     Project Resources

Each Project run by Kinetic Wizard will be led by either a Business Consultant, Lead Consultant or Project Manager who will be responsible for the successful delivery of the project. They will be the regular and first point of contact for all delivery-related matters.

Kinetic Wizard will make all reasonable endeavours to ensure minimum changes of personnel in the role of the Business Consultant, Lead Consultant or Project Manager throughout the duration of the project covered by this Agreement.

      2.9     User Acceptance

A single review cycle for User Acceptance of the deliverable(s) is included as part of all Consulting engagements. Any further reviews require additional Consulting time, effort and fees.

      2.10   Warranty

There is no warranty period for Consulting engagements.

      2.11    Non-Solicitation

During this engagement and for six (6) months after expiry or termination of this Agreement, both parties agree not to offer any form of employment or engagement, either directly or indirectly, to any of the other’s employees and/or contractors, unless having first received written permission from the other party.  A minimum fee of $50,000 is payable by the Client for an employee employed by the Client in this manner.

      2.12   Intellectual Property

Intellectual Property means any proprietary knowledge including inventions, trademarks, practical applications of good ideas, designs and implementations resulting from intellectual activity in the industrial, scientific, literary or artistic fields.

Kinetic Wizard acknowledges and agrees that Client’s Intellectual Property existing as at the date of this Agreement is owned by Client and that Kinetic Wizard has no proprietary right, title or interest in Client’ s Intellectual Property. Client will own any enhancements, modifications or improvements made by Kinetic Wizard to Client’s Intellectual Property during each Statement of Work.

Client acknowledges and agrees Kinetic Wizard’s Intellectual Property as at the date of this Agreement is owned by Kinetic Wizard and that Client has no proprietary right, title or interest in Kinetic Wizard’s Intellectual Property. Kinetic Wizard will own any enhancements, modifications or improvements made to Kinetic Wizard’s Intellectual Property in a Client engagement, that is generic in nature, and that does not give Client competitive advantage.

Kinetic Wizard may use elements of its existing Intellectual Property in the development of systems produced for Client. This may include application of process and methodology as well as software components.

Kinetic Wizard grants Client a non-exclusive, perpetual, irrevocable, and non-transferable licence to use and modify any of Kinetic Wizard’s Intellectual Property Rights subsisting in any Client system. Kinetic Wizard may exploit such IP as it thinks fit except that it may not assign, license or otherwise make available to any current or potential competitor of Client within the sector in which Client primarily operates such Intellectual Property Rights subsisting in such systems that have been specifically developed for Client pursuant to this Agreement. As such Kinetic Wizard aims to protect any competitive advantage it creates for Client.

Nothing in this Agreement will restrict Kinetic Wizard’s right to use the general experience and knowledge gained in developing the solution. Kinetic Wizard will be entitled to use the routine procedures and modules developed in the development of this solution, provided that Kinetic Wizard does not make, reproduce or substantially reproduce any of Client’s Intellectual Property without Client’s prior written consent.

Kinetic Wizard acknowledges that any of Client’s proprietary knowledge that does not exist in the public domain or is contained within Kinetic Wizard’s Intellectual Property, encapsulated in the source code developed in this project, is the Intellectual Property of Client.

All copyright arising from the performance of work by Kinetic Wizard for Client under this Agreement will belong to Client.

Kinetic Wizard reserves the right to display a “built by Kinetic Wizard” link to its website in any system it develops. Client, at its discretion, may choose to remove that link upon taking possession of the system.

      2.13   Confidentiality

The parties will at all times take all reasonable action necessary to maintain the confidential information of the other party. The parties will not disclose any of the Confidential Information of the other party to any person other than its employees, officers or subcontractors who need to have access to the confidential information to provide the services in accordance with this Agreement. Either party may disclose confidential information of the other party if legally compelled to do so by any judicial or administrative body. The relevant party must promptly inform the other party and take all reasonably available legal measures to avoid such disclosure.

For purposes of this Agreement, Confidential Information in relation to a party means information of a confidential nature including information about its business, operations, strategy, administration, technology, affairs, clients, customers, employees, contractors or suppliers, but does not include any information which is in the public domain other than through a breach of confidence.

      2.14   Personal Information

Each party must comply with the any applicable Privacy Law and the reasonable directions of the other party in the collection, use, storage and handling of any Personal Information obtained from the other party in connection with this Agreement or a Statement of Work.

For purposes of this clause:

Personal Information means information or an opinion (including information or an opinion forming part of a database) whether true or not, and whether recorded in material form or not, about an individual whose identity is apparent, or can be reasonably ascertained, from the information or opinion (or such other meaning as given to this term under the Privacy Laws from time to time), regardless of whether such information or opinion is provided by Client or a third party, or generated by Kinetic Wizard.

Privacy Law means any relevant or applicable privacy or data protection Laws relating to the collection, use, processing, disclosure, storage or granting of access to the Personal Information which may be amended and in force from time to time and may include the Privacy Act 1988 (Cth), Do Not Call Register Act 2006 (Cth) and the Spam Act 2003 (Cth); as well as any other State or Territory acts and regulations which regulate the use of Personal Information in each respective State or Territory and any other binding requirement under Australian industry code or policy relating to the handling of Personal Information.

      2.15   Force Majeure

If a party is wholly or partially unable to perform its obligations because of a Force Majeure Event, then it must promptly notify the other party of the nature and extent of the circumstances.

Subject to compliance with the provisions of the point above, that party’s obligation to perform those obligations will be suspended for the duration of the delay arising directly out of the Force Majeure Event.

If a delay arising directly out of a Force Majeure Event continues or is likely to continue for more than 30 days, and a suitable workaround plan has not been agreed, both parties may at its election, by notice to the other party do any or all the following:

  • Negotiate a variation.

  • Terminate the Statement of Work to the extent that it relates to the Services affected by the delay; and

  • Terminate the relevant Statement of Work in its entirety.

If all or part of a Statement of Work is terminated, neither party will be liable for any loss of the other party caused by the termination.

      3     Indemnities

3.1  Work Product

For purposes of this clause Work Product includes any software delivered by Kinetic Wizard to Client during this Agreement as well as any documentation, flow charts, diagrams, presentations and status reports prepared by Kinetic Wizard for Client during each Statement of Work.  No Work-Product is delivered as part of a resource augmentation project, only resources are delivered.

3.2       Kinetic Wizard indemnity

To the extent permitted by law Kinetic Wizard indemnifies Client against all Damages suffered or incurred by any of those indemnified (including those suffered or incurred as a result of a claim by a third party against any of those indemnified) in connection with:

  • Any breach of the terms of this Agreement or a Statement of Work, including Intellectual Property Rights, by Kinetic Wizard.

  • Any Injury to or death of:

  • any of Kinetic Wizard’s Personnel (other than injury or death suffered as a result of any act or omission by Client; or

  • any other person, caused or contributed to by an act or omission (including negligent acts and omissions) of Kinetic Wizard or any of Kinetic Wizard’s Personnel.

  • Any damage to any property caused by, or contributed to by, an act or omission (including negligent acts and omissions) of Kinetic Wizard or any Kinetic Wizard’s Personnel.

  • Any wilful, unlawful or negligent act or intentional omission of Kinetic Wizard or any of Kinetic Wizard’s Personnel.

3.3       Client indemnity

Client indemnifies Kinetic Wizard against all Damages that Kinetic Wizard suffered or incurred (including those suffered or incurred as a result of a claim by a third party against Kinetic Wizard) in connection with the death of any Client Personnel.

3.4      Notification

Both parties must keep one another fully informed of all suspected or actual infringements by any person of any Intellectual Property Rights in the Work Product and software provided.

3.5       Unauthorised Use

Each party must take reasonable steps to prevent:

  • Unauthorised use (of which it is aware) of Work Product; and

  • Infringement of the Intellectual Property Rights in Work Product.

3.6       IPR Warranties and Indemnity

For purposes of this Agreement, Moral Rights means the moral rights granted under the Copyright Act 1968 (Cth), including the right of attribution of authorship, right not to have authorship falsely attributed and right of integrity of authorship, and any similar rights existing under foreign laws.

  • Kinetic Wizard warrants that the rights assigned to Client do not and will not infringe the Intellectual Property Rights and/or Moral Rights of any person and indemnifies Client for any Damages that may arise in connection with a breach of this clause.

  • Kinetic Wizard warrants that it is not aware that, or of any claim that, the Intellectual Property Rights and/or Moral Rights of any person will be or are infringed by Work Product (Claim).

 3.7       Infringement claims

Client must:

  • notify Kinetic Wizard immediately after it becomes aware of any Claim (unless Kinetic Wizard is already aware of the Claim); and

  • provide promptly, at Kinetic Wizard's cost, all assistance reasonably requested by Kinetic Wizard relating to any proceedings arising from any Claim (Proceedings).

3.8       Defence of claims

Kinetic Wizard must ensure that all Claims and any Proceedings are fully and promptly defended (at no cost to Client).

3.9       Conduct of proceedings

Kinetic Wizard will have sole control of the Claim and conduct of the Proceedings and any resulting settlement negotiations, unless otherwise agreed in writing with Client.

3.10     Infringing Work Product

If there is a Claim or Proceedings, Kinetic Wizard must within 60 days of becoming aware of the Claim or Proceedings (whether by Client notifying Kinetic Wizard of them or otherwise), at its option:

  • Procure promptly for Client the right to use the Work Product as contemplated under the Statement of Work free of any claim or liability for infringement.

  • Procure promptly for Client other Work Products that comply with any Specifications; or

  • Modify the Work Product so that they cease to infringe those rights (while still complying with the Specifications for the Work Product).

4. Dispute Resolution

The parties shall attempt to resolve any dispute arising out of or relating to this Agreement through negotiations between senior executives of the parties, who have authority to settle the same.

If the matter is not resolved by negotiation within thirty (30) days of receipt of a written 'invitation to negotiate', the parties will attempt to resolve the dispute in good faith through an agreed Alternative Dispute Resolution (ADR) procedure. In this regard, any dispute or difference whatsoever arising out of or in connection with this contract shall be submitted to mediation in accordance with, and subject to, The Institute of Arbitrators & Mediators Australia Mediation and Conciliation Rules.

If the matter has not been resolved by an ADR procedure within forty-five (45) days of the initiation of that procedure, or if any party will not participate in an ADR procedure, the dispute may be referred to arbitration by any party, in which case such arbitration is to be in accordance with, and subject to, The Institute of Arbitrators & Mediators Australia Rules for the Conduct of Commercial Arbitration.

5. Limitation of Liability

To the extent permitted by law, Kinetic Wizard limits its total liability for all Damages arising out of a supply arrangement relating to this Agreement or a Statement of Work, to one time the aggregate price paid or payable under the Statement of Work.