Standard Terms of Business
These Terms of Business apply in respect of the Services set out in the Engagement Letter or Proposal (“Services”) to be performed by Saltire Capital Partners Pty Ltd ACN 70 633 357 721 in the Engagement Letter (“Saltire Capital Partners” or “we” or “us”), for the client name in the Engagement Letter (“Client” or “you”).
Each of Saltire Capital Partners and the Client confirms that it has obtained all necessary authorisations to enter and perform this Contract (“Contract”).
2.1 For the purpose of this Contract, “Confidential Information” means all non-public information or documents which either party receives or produces in connection with the Services and includes Saltire Capital Partners working papers, and proposal or tender document, information and methodologies, but does not include any information which is:
- or becomes generally available to the public other than as a result of a breach of this clause;
- known to either party prior to Saltire Capital Partners starting to provide the Services;
- received from a third party who owes no obligation of confidence in respect of the information; or
- developed by either party independently of the Services to which this Contract relates.
2.2 Neither Saltire Capital Partners nor the Client may disclose Confidential Information about or belonging to the other without the other’s consent.
2.3 Notwithstanding the above either party may disclose confidential information to:
- its insurers or legal advisors, provided that the Confidential Information remains confidential;
- if required to do so by law or professional standards; or
- if required for the proper performance of the Services.
2.4 Subject to Clause 2.1 and 2.2 we may cite the performance of the Services to clients as an indication of our experience.
3. Intellectual property
3.1 Unless otherwise specified in the Engagement Letter or Proposal, intellectual property rights in all documentation, systems, materials, methodologies and processes brought to the engagement by Saltire Capital Partners or created in the course of the engagement by Saltire Capital Partners shall remain and be vested in Saltire Capital Partners.
3.2 Subject to clause 2, Saltire Capital Partners will not be restricted by the Contract from developing and using in the future any techniques, methodologies, ideas, concepts, information and general knowhow.
3.3 You must not use the Saltire Capital Partners name or logo on any websites or in any public statement, (including filing all or part of a report with a regulator or including all or part of a report in any public document) without obtaining our prior written consent.
3.4 The working papers for this engagement, including electronic documents and files, are our property and constitute Confidential Information.
4. Performance of the Services
4.1 To perform the Services successfully, we require your timely co-operation, including:
- providing in a timely fashion all information and documents that we reasonably require to enable us to provide the Services and (if stated in your brief, our proposal, or our Engagement Letter) your staff to work with us;
- arranging access to third parties where applicable;
- ensuring that appropriate back up, security and virus checking procedures are in place for any computer facilities you provide
- making senior executives available for consultation on request;
- providing reasonable working facilities for us: and
- making decisions promptly to facilitate the performance of the Services.
4.2 Unless both parties agree otherwise in writing, dates in any timetable set out in the Engagement Letter or Proposal or otherwise advised are intended for planning and estimating purposes only and are not Contractually binding. The timely completion of the Services requires your cooperation in the provision of information and explanations relevant to the Services. Estimates of time for completion of the Services are given on the assumption that we received this cooperation. We may charge additional fees and expenses which result from delays in providing this cooperation.
4.3 The scope of the Services is limited to the work specified in our Proposal or Engagement Letter. Unless expressly stated otherwise in the Engagement Letter, the Services are not legal Services and do not constitute legal advice. Either of us may request changes to the Services but no changes take effect unless agreed in writing.
4.4 Our work will be based on the documentation and information provided to, or obtained by us. We rely on you bringing to our attention any changes in the documentation and information as originally presented, as it may affect our advice. You will ensure that documentation and information supplied by you or on your behalf, to the best of your knowledge and belief, is not false or misleading and does not omit material particulars. Unless otherwise stated in our Engagement Letter or proposal, we will not verify the accuracy and completeness of such documentation or information.
4.5 In the course of providing the Services, we may provide oral comments or draft reports, presentations, letters, schedules and other documents. No reliance shall be placed on such oral comments or draft documents, conclusions or advice as they may be subject to further work, revision and other factors which may mean that such drafts are substantially different from any final report or advice issued. The final results of our work will be set out in our final report or advice.
4.6 Changes in the law may take place before our advice is acted upon or may be retrospective in effect. Unless specifically stated in the Engagement Letter, confirmation or Proposal we accept no responsibility to inform you of changes in the law or interpretations affecting advice previously given by us.
5.1 Saltire Capital Partners will use reasonable skill and care in providing the Services
5.2 The liability of Saltire Capital Partners for loss or damage arising from or in relation to the Services, whether arising from breach of contract, tort (including negligence) or otherwise, is limited to an amount equal to ten times the fees payable by you for the Services (“Liability Cap”)
5.3 The parties acknowledge Saltire Capital Partners liability may also be limited by a scheme approved under Professional Standards Legislation. Further information on the scheme is available from the Professional Standards Councils’ website: http://www.psc.gov.au.
5.4 To the extent permitted by law, if, under any applicable Professional Standards Legislation, the maximum liability of Saltire Capital Partners for loss or damage arising from or in relation to the Services would be:
- A higher amount than the Liability Cap, then the Liability Cap will not apply and the maximum liability of Saltire Capital Partners will be calculated in accordance with the Professional Standards Legislation; or
- A lower amount than the Liability Cap, then the liability cap will not apply and the maximum liability of Saltire Capital Partners will be calculated in accordance with Professional Standards Legislation.
5.5 To the extent permitted by law, Saltire Capital Partners excludes all liability for any indirect, incidental or consequential expense, loss damages or costs, loss of profits or revenue, business interruption, loss of data, or failure to realise anticipated savings or benefits whatsoever incurred by or awarded against the Client (whether or not Saltire Capital Partners has been advised of the possibility of such expense, loss, damage or costs) arising in any way out of or in relation to the Services.
5.6 You agree that if you make any claim against us for loss arising out of or in connection with the Services or this agreement, and you contribute to that loss by your own actions, liability for your loss will be apportioned having regard to the respective responsibility for the loss, and the amount you may recover from us if successful in your claim will be reduced to the extent of your contribution to that loss.
5.7 You agree to indemnify and hold harmless Saltire Capital Partners and our respective partners, directors and employees from and against any liabilities, losses, claims, costs, damages or expenses (or actions that may be asserted by any third party) that may result from any third party claims arising out of or in relation to the provision of the Services or any use by you of any deliverable under this Contract, and will reimburse Saltire Capital Partners for all costs and expenses (including legal fees on a solicitor/client basis) incurred by Saltire Capital Partners in connection with any such action or claim. This indemnity does not apply if prohibited by the Corporations Act 2001.
5.8 You accept and acknowledge that we have not made any, and to the extent permitted by law we exclude all warranties, conditions or guarantees of any nature in respect of the Services or the satisfactory conclusion of the Services or with respect to the economic, financial or other results which you may experience as a result of the provision of the Service.
5.9 Where warranties, conditions or guarantees or any other rights are implied in this contract or otherwise conferred by the Trade Practices Act 1974 (Cth) or other laws, and it is not lawful or possible to exclude them, then those warranties, conditions or guarantees or other rights will (but only to the extent required by law) apply to this Contract. To the extent permitted by law, we limit our liability in respect of such warranties, conditions or guarantees to the supply of the Services again or the payment of the cost of having the Services supplied again.
5.10You agree not to bring any claim (whether in contract, tort (including negligence) or otherwise) arising out of or in connection with the Services against any of our employees personally, but this will not limit or exclude any liability we may have for their acts or omissions. The provisions of this clause are expressly for the benefit of our employees, and you agree that each employee is entitled to rely on this clause as if they were parties to this contact.
6. Fees and Expenses
6.1 Our fees for the Services will be charged on the basis set out in our Engagement Letter or Proposal. Where applicable, Goods and Services Tax (“GST”) at the prevailing rate will be added to and forms part of our fees.
6.2 We will charge you for our reasonable out of pocket expenses such as travel, subsistence and document handling costs (photocopying, printing, fax and courier etc) incurred in connection with the Services. The charge will be calculated as the amounts we incur (net of any GST input tax credit to which we are entitled) plus GST as applicable.
6.3 Unless otherwise specified in our Engagement Letter, fees and expenses will be invoiced monthly and are payable within 14 days after date of issue the invoice. We may charge you a commercial rate of interest on accounts which are overdue by more than a month. Any fee estimate is given in good faith but is not Contractually binding.
6.4 We revise our fee scale annually. Rates quoted to you remain in force until next 30 June, as appropriate, and we may increase our fess for any work performed after those dates.
6.5 Unless agreed otherwise, your obligation to pay us fees and expenses will not arise until we have issued a fee account to you. Where an amount for GST is stated to be component of the fees and expenses, our fee account will be a compliant “tax invoice” for GST purposes.
6.6 If, based on the information presently available to us, including representation made by you, we have assessed that no GST should be payable in respect of the Services, goods or other items we agree to supply under this engagement, our fee or hourly rates and, where applicable, out of pocket expenses and other expenses (our “Billings”) will be calculated on this basis. If we change our assessment or if the Australian Taxation Office assesses that GST is payable, then it will be added to and form part of our Billings at the prevailing GST rate. We reserve the right to recover from you at any time, any GST payable by us on the provision of the Services, goods or any other items supplied to you under this engagement.
6.7 Where you dispute all or part of an invoice, each of us agrees to seek to resolve the dispute under clause 15.8. Where you dispute part of an invoice, you agree to pay the undisputed part of the invoice as and when it is or becomes due and payable.
6.8 If we receive any legally enforceable notice or demand issued by any third party, including the Australian Securities & Investment Commission, the Australian Taxation Office, The Australian Stock Exchange, any government statutory body or instrumentality or any court or tribunal in relation to or in connection with the Services, you agree to pay our reasonable professional costs and expenses (including solicitor client expenses) in complying with or challenging any such notice or demand to the extent that our costs and expenses are not recovered or recoverable from the party issuing the notice or demand. We will notify you as soon as practicable (unless restricted by law) where we receive any such legally enforceable notice or demand.
7. Quality Control
7.1 Saltire Capital Partners is subject to the Quality Control Review Program conducted by Chartered Accountants Australia and New Zealand. The work we perform for you may be selected by the examiners for review. You acknowledge that, if requested, our files relating to this engagement will be made available. If you object to being included in any of these review processes, you must advise us in writing and we will use our best endeavours to exclude this engagement from such review. We may participate in other external or internal review processes in relation to quality.
8. Services solely for client benefit
8.1 The Services will be provided solely for your benefit and use unless provided otherwise in the Engagement Letter or Proposal. Except as required by law, you must not provide any documentation or deliverables in respect of the Services to any third party (including without limitation, the filing of information containing or referring to any of our reports with regulators or the inclusion of our reports in any public document) without our written consent. We accept no liability or responsibility to any third party in respect of the Services.
9. Use of software
9.1 We may use or develop software, including spreadsheets, databases and other electronic tools (“Tools”) in providing the Services. If we provide these tools to you, you acknowledge that (except where these tools are a specific deliverable under our Contract with you) they are not your property, were developed for our purposes and without consideration of any purposes for which you might use them, are made available on an “as is” basis for your use only and must not be distributed to or shared with any third party. To the full extent permitted by law, we make no representations or warranties as to the sufficiency or appropriateness of the tools for any purpose for which you or a third party may use them.
10. Electronic communications
10.1 We may communicate with you electronically. Electronically transmitted information cannot be guaranteed to be secure or virus or error free and consequently such information could be intercepted, corrupted, lost, destroyed, arrive late or incomplete or otherwise be adversely affected or unsafe to use. We will use commercially reasonable procedures to check for the then most commonly known viruses before sending information electronically, but we will not be liable to you in respect of any error, omission or loss of confidentiality arising from or in connection with the electronic communication of information to you. You remain responsible for protecting your own systems and interests in relation to electronic communications. If you do not accept these risks, you should notify us in writing that you do not want us to communicate electronically with you.
11.1 Subject to any statutory provisions to the contrary, it is our practice to destroy documents belonging to us after they are more than seven years old. Your acceptance of these terms includes your consent for us to destroy any documents that belong to you which have been filed amongst our own papers. You agree that the above data retention arrangements are acceptable for your purposes.
12. Sub-Contractors and third parties
12.1 We reserve the right to employ sub-Contractors, and any reference to our staff includes sub-Contractor staff. Subject to any contrary provision in our Engagement Letter we will remain liable to you for any of the Services that are provided by our sub-Contractors.
13. Privacy of personal information
13.1 You agree that you will only disclose personal information (as that term is defined under the Privacy Act 1998 (Cth) (“Privacy Act”) to us if necessary for us to perform the Services, and only if such disclosure by you will not infringe protections afforded by the Privacy Act to individuals about whom the personal information relates.
13.2 If the performance of the Services requires a third party to this Contract to supply personal information to us on your request, it is your obligation to ensure that the third party has satisfied the requirements of the Privacy Act and is permitted by the Privacy Act, to disclose such personal information to us.
13.3 If the Services require Saltire Capital Partners to collect personal information from a third party you will ensure that such collection of personal information complies with the Privacy Act, and be responsible for, all things necessary (including obtaining appropriate consents) for Saltire Capital Partners to collect such personal information.
14. Term and Termination
14.1 This Contract will apply from the commencement date stated in our Proposal or Engagement Letter, or where no commencement date is specified, from the date of acceptance of the Contract as specified in our Proposal or Engagement Letter.
14.2 Subject to any statutory provisions that apply to the Services, either party may terminate this Contract at any time by giving at least 14 days written notice to the other. On termination, you shall immediately pay on request all fees and expenses due in respect of the Services provided up to the date of termination and, unless the Contract is terminated for cause, you will pay our reasonable costs and expenses incurred in connection with the termination of the Contract.
14.3 For the avoidance of doubt, the date of termination shall be the date on which any period of notice expires.
14.4 On termination or completion of this Contract, we may retain our working papers and documentation or software prepared by us and any other documentation on which our Services are based to enable us to maintain a professional record of our involvement. You may retain your originals and any copies of our reports and letters made in accordance with the provisions of this Contract.
14.5 Termination of the Contract shall be without prejudice to any accrued rights of both parties.
14.6 The terms of the Contract which expressly or by implication are intended to survive its termination or expiry will survive and continue to bind the parties.
15.1 Saltire Capital Partners engagement team
- We will use reasonable efforts to ensure that individuals named in our Proposal or Engagement Letter are available to perform the Services. If we are unable to do this we will provide you with details of replacement staff.
- For the duration of our engagement, and for a period of 12 months after its termination or completion, you will not employ or procure a third party to employ any employee of ours who has taken part in the performance of the Services.
- If you offer employment to such an employee, and if we give our consent and the employee accepts the offer, then you will pay a recruitment fee will be calculated at 30% of the relevant employee’s gross annual salary package.
15.2 Relationship with other clients. We provide Services to other clients, some of whom may be in competition with you or have interests which conflict with your own. We will not be prevented or restricted by virtue of our relationship with you under this Contract from providing Services to other clients.
15.3 Our relationship with you. You acknowledge and agree that our relationship with you is that of an independent contractor and is not a partnership, joint venture, fiduciary or employment relationship. Neither of us may claim or make any representation whatsoever to any third party that it is an agent of, or in partnership with, the other party and each party acknowledges that is has no power or authority to bind the other in respect of any matter whatsoever and it will not represent to any person that it has such power or authority.
15.4 Consortia. Where the Client is a consortium, you agree that, unless specified in the Engagement Letter:
- While Saltire Capital Partners may communicate with one or more members of the consortium, it is the responsibility of each member of the consortium to communicate such information between themselves, and Saltire Capital Partners will have no responsibility or liability for any communication to any member of the consortium that is not communicated to the other members;
- Instructions received from one member of the consortium will bind each other member;
- Where a member terminates its participation in the consortium:
- Such terminating member will not receive access to any deliverables prepared by Saltire Capital Partners as part of the Services under the Contract.
- Such terminating member will have no obligation to pay our fees or reimburse our expenses for any Services performed by Saltire Capital Partners after the date such member notifies Saltire Capital Partners that it is no longer participating in the consortium. However, nothing in the foregoing shall affect such terminating member’s others rights and obligations under this Contract;
- Saltire Capital Partners may continue to provide Services under this Contract to each continuing consortium member;
- Saltire Capital Partners may provide Services in connection with the transaction to which the Services relate to the terminating member of the consortium under a separate Engagement Letter, and may use any knowledge obtained or deliverable generated by Saltire Capital Partners during the performance of the Services under this Contract up to the date the terminating member notified Saltire Capital Partners it is no longer participating in the consortium in providing such Services to the terminating member. Saltire Capital Partners will keep any information of continuing consortium members generated following this date confidential from the terminating member and vice versa.
15.5 Waiver. A failure or delay by a party in exercising a power or right given to it under this Contract does not operate as waiver of that power or right, nor does a single or partial exercise of a power or right prevent any other or further exercise of it. A waiver by a party of a power or right given to it under this Contract does not affect any other provision of this Contract.
15.6 Address for Services. Any written notice to be given to a party may be delivered in person, by letter or by email transmission, to:
- In the case of notices to us, to our address, clearly marked for the attention of the engagement lead appearing in our Engagement Letter or proposal; and
- In the case of notices to you, to the address last notified by you.
15.7 Governing Law. This Contract shall be governed by and interpreted in accordance with the laws of the State referred to in the Engagement Letter or proposal and the Courts of that State shall have exclusive jurisdiction in relation to any claim, dispute or difference concerning the Contract and any matter arising from it. The parties irrevocably waive any right they may have to object to any action being brought in an inconvenient forum or to claim that those courts do not have jurisdiction. If no State is specified in the Engagement Letter or proposal, the laws of New South Wales, Australia shall apply.
15.8 Disputes. If any dispute arises between us we will attempt to resolve the dispute in good faith by senior level negotiations. Where both of us agree that it may be beneficial, we will seek to resolve the dispute through mediation.
15.9 Force majeure. Neither of us will be liable to the other for any delay or failure to fulfil their obligations (excluding payment obligations) under this Contract to the extent that any such delay or failure arises from causes beyond their control, including but not limited to fire, flood, acts of God, acts or regulations of any governmental or supernational authority, war, riot, terrorist activities, strikes, lockouts and industrial disputes.
15.10 No assignment. Neither of us may transfer, charge or otherwise seek to deal with our rights or obligations under this Contract without prior written consent of the other party, except that we may each transfer our respective rights and obligations to any partnership or legal entity authorised to take over all or part of our business.
15.11 Entire agreement. This Contract forms the entire agreement between us relating to the Services. It replaces and supersedes any previous proposals, correspondence, understandings or other communications (written or oral).
15.12 Validity of Contract terms and severance. If any provision of this Contract is held to be invalid, in whole or in part such provision shall be deemed not to form part of and will be severed from, the Contract. The enforceability of the remainder of the Contract will not be affected.
15.13 Conflicting terms. In the event of any conflict between our Engagement Letter and:
- These terms of business; or
- Our proposal
The Engagement Letter will take precedence.
For the purpose of this Contract:
“Contract” means the agreement between us as set out in these Terms of Business and our Engagement Letter or proposal together with any changes to the Contract that are agreed in writing between us.
“Engagement Letter” means the Engagement Letter or confirmation letter to which these terms of business are attached.