1.1. Our letter of engagement to you (“the Client”) for each matter in which you request our services (“Statement of Work”, “Proposal” or “Quote”) and these standard terms and conditions of engagement (“Standard Terms”) of LBH Partners Pty Ltd (“LBH” or “LBH Partners”), including any written variation (together called “this Agreement”) will apply to the work to be performed for you as described in the Statement of Work (the “Services”).
1.2. This Agreement constitutes the entire agreement between LBH and the Client. Where there is any inconsistency between the Statement of Work and these terms, the Statement of Work will prevail.
1.3. The Client acknowledges that LBH is engaged under this Agreement as an independent contractor. No person is authorised to give any representations on behalf of LBH except as set out in the Agreement and any such representations, which have been or may be given cannot be relied upon and are void.
1.4. In the event that any of the terms of this Agreement are or become invalid, illegal or unenforceable, the remainder survive unaffected.
1.5. The offer contained in the Statement of Work must be accepted by the Client in writing. Notwithstanding, we will treat the terms of this Agreement as accepted by you if you continue to request or use our services.
1.6. LBH confirms that any Statement of Works, Proposals or Quotes are valid for a period of 30 days from the date of issue.
2. CLIENT OBLIGATIONS
2.1. The Client agrees to pay for the Services described in the Statement of Work within timeframes specified, adhering to any payment milestones.
2.2. The Client will provide promptly to LBH all reasonable and necessary assistance, including access to all information which LBH considers to be relevant to the provision of the Services, so as to enable LBH to provide the Services. The Client must update information provided by it to LBH where there has been a material change to that information (including but not limited to that information becoming untrue or misleading) which affects the scope or performance by LBH of the Services.
2.3. The Client will make available all required personnel and manage all contractors or third parties required to have input and contribute to the outcomes in the Statement of Work.
3. UNAVOIDABLE DELAYS
3.1. LBH is not liable for any failure or delay in providing the Services if caused, or contributed to, by an act or event (including the non-performance of the Client’s obligations) that is beyond the control of LBH or was not foreseen at the time of entering into this Agreement. LBH will advise the Client of the delay and cause. LBH is entitled to review its fees where such delays occur and will charge fees at the prevailing hourly rate according to grade and experience of the LBH team member.
4. SPECIFIED ENGAGEMENT PERSONNEL
4.1. The Client will not:
4.1.1. (a) offer employment to any LBH partner, employee, or contractor providing the Services (“Personnel”);
4.1.2. (b) induce or solicit Personnel to take up employment with the Client; or
4.1.3. (c) use the services of Personnel, either independently or via a third party, during and for a period of twelve (12) months following the end of the provision of the Services to the Client, without LBH’s prior consent.
4.2. From time to time it may be necessary to supplement or replace staff initially assigned to the engagement, e.g. due to training commitments, leave, illness etc.
5. USE OF REPORTS AND ADVICE
5.1. All communication by LBH with the Client, its employees or agents, whether written or oral are provided solely for the use of the Client in connection with this Agreement, and must not, without LBH’s prior written consent be used for any other purpose or referred to in any document or made available to any other person (except the Client’s legal advisors or other professional advisors assisting in matters related to this Agreement). No other party is entitled to rely on LBH’s reports or advice for any purpose whatsoever. LBH disclaims any responsibility to any such third party who has relied upon advice or services provided by LBH to the Client under this Agreement.
5.2. By entering into this Agreement you consent to us communicating with you electronically. If any report or correspondence containing opinions or advice is sent electronically, LBH will not be responsible for any unauthorised copying, interception, interference, alteration or delivery failure of the transmission. Although LBH uses its best endeavours, LBH does not warrant that the electronic transmission is virus free or will not harm the Client’s computer systems.
5.3. Written advice and final reports take precedence over any oral advice and interim reports and no reliance should be placed by the Client on any such oral advice or interim reports. LBH is not responsible for updating any opinions, advice or reports subsequent to the issue of a final version.
6. PROFESSIONAL FEES AND PAYMENT TERMS
6.1. Unless otherwise specifically agreed, LBH’s fees will be based on hourly rates which take account of the level of personnel assigned to the engagement. If an estimate of fees has been provided by LBH to the Client, LBH will advise the Client if it considers the estimate is likely to be exceeded.
6.2. The Client agrees to pay any tax or other charge imposed on LBH (now or in the future) in relation to any transactions arising in connection with, or as an outcome of, this Agreement. This includes (but is not limited to) any goods and service tax (“GST”) imposed under the (Goods and Service Tax) Act 1999 (Commonwealth) as amended. Any fees charged by LBH under this Agreement will be initially calculated exclusive of GST. Where GST is payable on any supply provided under this Agreement, the Client agrees that the fee payable for this supply will be increased by an amount equivalent to the GST payable by LBH in respect of that supply.
6.3. If either LBH or the Client terminate this Agreement, for the reasons set out in the Statement of Work or for any other reason that justifies termination, LBH is entitled to its fees and expenses incurred up to the termination date whether or not a taxation invoice has been provided at time of termination.
6.4. Disbursements paid or incurred by LBH on behalf of the Client are separate to LBH’s professional fees. Disbursements include photocopying, hosting, software license fees, printing, telephone calls, postage, couriers, travel fares, accommodation, parking, data connectivity, meals, room and facility costs, costs of materials and third party supplied items and support and desktop publishing services. For travel disbursements, LBH’s standard policies apply which are to use business class within Australia for flights of duration greater than two hours (otherwise economy class shall be used) and business class or equivalent for overseas air travel greater than 4 hours (otherwise economy class shall be used). All disbursements will be charged at cost and added to our tax invoices. If required LBH can summarise disbursements by classification e.g. travel, accommodation.
6.5. LBH will issue invoices monthly or as indicated in the Statement of Work. Except where the Statement of Work states otherwise invoices are payable within 14 days of invoice date. LBH reserves the right to charge interest on overdue amounts at the rate being two (2) percentage points above the overdraft rate charged on overdraft accounts over $100,000 by the Commonwealth Bank of Australia from time to time.
7. CONFIDENTIALITY AND PRIVACY
7.1. LBH may wish to obtain publicity for work undertaken on behalf of its clients. Permission to attribute work for the Client publicly will always be obtained in advance. Notwithstanding this condition, LBH assumes the right to use references in proposals or other similar submissions made to other prospective clients, unless the Client expressly prohibits such disclosure at the commencement of the Engagement.
7.2. Unless otherwise agreed, LBH is authorised by the Client to communicate or meet with any other person whom it may need to contact to perform the Services or who the Client requests LBH to contact.
7.3. Save as set out above or as required by law, Court or arbitration proceedings, regulations including those made under the Corporations Act, professional duty, or as is requested by regulatory authorities, or as is necessary to protect its own legitimate interests, either party will not disclose any confidential information relating to the disclosing party which it obtains during the course of the this Agreement to any other person (except its own advisers). Confidential information shall be deemed financial information or information not deemed available in the public domain or information which is marked ‘confidential’.
7.4. Under the Privacy Act 1988 (Commonwealth) (“Privacy Act”), LBH is required to advise the Client that we collect information about the Client to assist LBH in performing and promoting the Services. Generally, this information is collected through the communications LBH has with the Client, but may also be obtained through other sources in the course of providing the Services. LBH takes reasonable measures to ensure such information is accurate and held securely. LBH will not disclose information about the Client to any person except in the course of providing the Services or for the ordinary administration of LBH’s business, unless permitted or authorised to do so under the Privacy Act or other applicable law.
7.6. LBH agrees to follow all reasonable requests by the Client to implement security practices, tools or software necessary to secure Personally Identifiable Information (PII), confidential information and the intellectual property of the Client or its clients.
8. CONFLICT OF INTEREST
8.1. Before entering this Agreement LBH will attempt to ensure that it does not create a conflict of interest or that if it does, proper steps (following LBH guidelines and permitted by law) are taken to manage the conflict.
8.2. LBH cannot always identify conflicts because clients frequently trade through subsidiaries or branches whose names are not known to LBH. The Client agrees to provide LBH with any names used by it or names of associated companies, to be included in LBH’s conflict checking procedures. If you become aware during the course of a matter that your interests are or may become opposed to those of another person or entity, you should advise us immediately.
8.3. If a conflict of interest does arise during the term of this Agreement, the engagement partner will discuss it with the Client and with the other party to the conflict to attempt to achieve a prompt and satisfactory resolution. The Client’s details will be kept confidential during those discussions unless otherwise agreed.
9. COPYRIGHT AND INTELLECTUAL PROPERTY
9.1. For the purposes of this clause, the term “Intellectual Property Rights” means any rights in relation to copyright (including future copyright), trademark, patent, design, (whether registered, unregistered, unregistrable or applied for), trade, business, company or domain name, know-how, methodology, inventions, processes, confidential information (whether in writing or recorded in any form); and any other proprietary, licence or personal rights arising from intellectual activity in the business fields whether first made or created before or after the date of the Client’s acceptance of this Statement of Work, and whether existing in Australia or elsewhere.
9.2. Each party shall retain ownership of all right, title and interest in Intellectual Property created by the respective party prior to the Agreement (“Pre-existing IP”), subject to any license grants under a separate IP License Agreement.
9.3. All right, title and interest in new Intellectual Property created by LBH for the Client as part of this Agreement shall be assigned to the Client, excluding any Pre-existing IP of LBH or third party software products, components or modules used as part of the services delivered under this Agreement.
10.1. To the extent permitted by law, the Client agrees to indemnify LBH and its partners and employees against all losses, liabilities, claims, costs or expenses incurred by LBH in respect of any claim or action by a third party arising from or in connection with the provision of the Services. This indemnity does not apply to any liabilities, costs or expenses incurred in defending a claim by a third party which results from any wilful misconduct by LBH or its partners and employees.
10.2. LBH is not liable for any losses, damages, costs or expenses arising out of errors due to the provision to it of false, misleading or incomplete information or documentation or due to any acts or omissions of any other person. The Client indemnifies LBH from any liability it may have to the Client or any third party as a result of any information supplied to LBH by the Client or any of its agents, where such information and documentation is false, misleading or incomplete in a material respect.
11. LIMITATION OF LIABILITY
11.1. The liability of LBH to the Client arising out of the performance or non-performance of the services, whether under the law of contract, tort or otherwise, shall be limited to the cost of rectifying the works.
11.2. The maximum liability of LBH arising out of the performance or non-performance of the services, whether under the law of contract, tort or otherwise, shall not exceed the contract value of the Statement of Work.
11.3. LBH shall be deemed to have been discharged from all liability in respect of the services, whether under the law of contract, tort or otherwise, 45 days following acceptance of the services by the Client and persons claiming through or under the Client shall not be entitled to commence any action or claim whatsoever against LBH (or any employee of the LBH) in respect of the services after that date.
12.1. To the extent permitted by law, the Client may end this Agreement by providing written notice to LBH Partners on the terms set out in the Statement of Work.
12.2. All unpaid fees and disbursements incurred prior to the date of termination are immediately due and payable together with any related GST.
12.3. LBH has a right to end this Agreement and cease acting for the Client or suspend its Services if the Client does not pay its invoices as agreed, if in LBH’s view the necessary relationship of confidence no longer exists between the parties, or if LBH thinks it appropriate, in consideration of the professional conduct rules and ethical standards under which it practices.
13. GOVERNING LAW AND JURISDICTION
13.1. The Agreement is governed and construed in accordance with the law of the state of New South Wales, Australia. Each party irrevocably and unconditionally submits to the exclusive jurisdiction of the Courts of New South Wales, Australia for determining any disputes or proceedings arising out of or in connection with this Agreement.