Terms of Business
These Terms of Business contain information and the terms and conditions under which we will provide our Professional Services to you. These Terms form part of our letter of engagement and any Fee Estimate/s we give you.
These Terms will apply to all matters in which you engage us to provide Services to you, subject to any specific changes or arrangements in relation to any particular matter(s).
In these Terms of Business, words have the following meaning:
- Business Day means a day that is not a Saturday, Sunday or public holiday in Australia;
- Client or You means the party named in this proposal;
- Deliverables means all documents, equipment, information and data, produced as part of the Services and supplied by CBIT to the Client as part of the Services;
- Engagement Letter means this letter including all associated attachments;
- Fee means the amounts payable for the Services set out in this proposal, subject to any changes by CBIT for which notice is provided to the Client in accordance with these Terms of Business;
- Government Agency means any government or any government, semi-governmental, administrative, fiscal or judicial body, department, commission, authority, tribunal, agency or entity including any self-regulatory organisation established under statute or any stock exchange;
- GST means any goods and services tax, value added tax or similar tax levied or imposed by the Commonwealth of Australia;
- GST Law has the meaning given by the A New Tax System (Goods and Services Tax) Act 1999 (Cth);
- Intellectual Property Rights includes property and rights in respect of or in connection with copyright (including future copyright and rights in the nature of or analogous to copyright), know- how, trade mark, service mark, design, inventions (including patents), semi-conductor or circuit layout rights, trade, business or company names, or other proprietary rights, or any rights to registration of such rights (including all renewals and extensions) whether created before or on or after the acceptance by You of these Terms of Business;
- CBIT or CDFS or We or Us means CBIT Pty Limited ACN 107115846;
- Services mean the services detailed in this proposal;
- Term means the period commencing from the date of execution by the Client of the Acceptance of this proposal and continuing until such time as the provision of the Services under these Terms of Business is terminated by either party;
- Terms of Business means the terms and conditions set out in this engagement letter.
In these Terms of Business, unless the contrary appears:
- A reference to a party includes its employees, agents, officers and contractors.
- A reference to a clause, subclause, Attachment or Schedule is a reference to a clause, subclause, Attachment or Schedule of the Engagement Letter.
- Where a word or phrase is given a particular meaning, other parts of speech and grammatical forms of that word or phrase have corresponding meanings.
- Monetary references are references to Australian currency.
- The meaning of general words is not limited by specific examples introduced by including, for example or similar expressions.
- If any provision of these Terms of Business is invalid or unenforceable in accordance with its terms, all other provisions which are self-sustaining and capable of separate enforcement without regard to the invalid or unenforceable provisions are and will continue to be valid and enforceable in accordance with their terms.
- Any rights conferred by these Terms of Business are additional and without prejudice to all other rights and remedies available to the parties. No exercise or lack of exercise of a right constitutes a waiver by a party of any other right or remedy nor do any of the parties respective rights merge upon the termination of the Services.
Changes to the scope of the services outlined in this Engagement Letter may only be made in writing and agreed both parties.
We will inform you as soon as practicable if we become aware of any potential or actual conflict of interest between CBIT, our employees, contractors or directors and any of the parties named in the proceedings. To the extent that we are required to reach conclusions or form opinions during the Engagement, we are obliged to do so without regard to the impact that the conclusions may have on the proceedings. This Engagement does not restrict CBIT’s ability to enter into agreements with other persons and businesses during the Term provided that in doing so CBIT’s performance of the Services is not detrimentally affected.
Nothing in these Terms and Conditions affects the pre-existing Intellectual Property Rights of CBIT.
As a Client you recognise that in order to perform the Services and deliver the Deliverables, we use and value the confidentiality of, our pre-existing Intellectual Property Rights. Upon the payment of our Fee for the Services, we assign to you all Intellectual Property Rights in the Deliverables that we provide to you as a result of the Services.
The Deliverables must not be copied, distributed, shared or duplicated in any way unless with our prior consent, which shall not be unreasonably delayed or withheld. CBIT makes no warranties or representations that the Deliverables are fit for purpose where You share them with third parties.
Upon termination or completion of the Services under these Terms of Business, You may retain originals and copies of reports and letters prepared by CBIT during the provision of the Services. At all times Your data remains Your property, and you accept responsibility to ensure that Your data is accurate and up-to-date.
CBIT recognises the importance of protecting Personal Information and agrees to comply with the Australian Privacy Principles under the Privacy Act 1988 (Cth) and to the extent required, the General Data Protection Regulations (EU).
CBIT recognises and acknowledges that acceptance by You of these Terms of Business creates a confidential relationship between CBIT and the Client and that information concerning the Client’s business affairs, customers, vendors, finances, properties, methods of operation, computer programs, and documentation, and other such information, whether written, oral, or otherwise, is confidential in nature.
We will treat as confidential all proprietary information obtained from you in the course of the Engagement except as described in this section. We will only use such information in the connection with the performance of the Services.
The above restrictions shall not apply to any confidential information that: (i) is required by law or professional standards applicable to us to be disclosed; (ii) that is in or hereafter enters the public domain; (iii) that is or hereafter becomes known to us without breach of any confidentiality obligation; or (iv) that is independently developed by us.
We may include a description of the Services rendered in the Engagement in marketing and research materials and disclose such information to third parties, provided that all such information will be rendered anonymous and not subject to any association with you or other parties involved in the proceedings.
CBIT agrees that, except as directed by the Client, it will not at any time during or after the Term disclose any Confidential Information to any person whatsoever and that upon the termination of the Services under these Terms of Business it will turn over to the Client all documents, papers, and other matter in its possession or control that relate to the Client, once payment of all outstanding invoices has been received.
CBIT further agrees to bind its employees and subcontractors to the terms and conditions of these Terms of Business.
Limitations and Restrictions
It is not anticipated that you would require any formal report as part of this Engagement. Any report (including drafts provided to you) or deliverable which we may prepare in relation to this Engagement, may be relied on solely for the purposes specified in these Terms.
Our report is not to be reproduced or used for any purpose other than that outlined in this Engagement without our written permission in each specific instance. Subsequent to the completion of the Engagement, we are not under any obligation to update its advice, recommendations or work product for changes or modifications to the law and regulations, or to the judicial and administrative interpretations thereof, or for subsequent events or transactions, unless you separately engage us to do so in writing after such changes or modifications, interpretations events or transactions.
We warrant that we will perform the Services in good faith with qualified personnel in a competent and workmanlike manner in accordance with applicable industry standards. To the extent permissible by law, all other warranties, representations or conditions, either express or implied, are excluded.
The Deliverables prepared by Us will be based on information provided by You initially and through the queries We raise with You. CBIT’s staff will advise You on matters using correct principles and guidelines, however We rely on You to provide true, accurate, correct and sufficient information and to advise Us of any errors, omissions or misstatements or changes in the information or Your circumstances.
While every effort will be made by Us to ensure the reliability and accuracy of Deliverables produced, CBIT does not accept responsibility or liability in respect of the accuracy of any Deliverables prepared on the basis of information which is false or misleading, incorrect, insufficient or incomplete that has been provided to Us by You or Your representative.
Where We have provided You with a checklist/template detailing the information that We require to complete the
Services, We will not commence work on the Services unless or until this checklist/template has been properly completed and We have all the necessary information required to complete the Services.
CBIT will use reasonable skill and care in providing the Services.
The liability of CBIT for loss or damages arising from or in relation to the service is limited to an amount equal to the fees payable by You for the Services, except where the liability arises as a result of gross negligence or wilful misconduct.
To the extent permitted by law, CBIT excludes all liability for any expenses, loss, damages or cost (including loss of profits or revenue, business interruption, loss of data, or failure to realise anticipated savings or benefits) incurred by or awarded against the Client arising in any way out of or in relation to the Services.
You agree to indemnify CBIT and keep CBIT indemnified, from and against any liabilities, losses, claims, costs, damages or expenses, (including 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 these Terms of Business. You further agree to reimburse CBIT for all costs and expenses, including legal fees, incurred by CBIT in connection with any such action or claim.
The indemnity provided for in this clause will be reduced proportionally to the extent that the liability, loss, claim, cost,
damage or expense was caused by a negligent act or omission on the part of CBIT or any of its officers, employees, contractors or agents.
Survival of Indemnities
Each release or indemnity provided by a party under these Terms of Business will continue to be an obligation on that
party despite the settlement of any account or the any other event. Each release or indemnity is an additional, separate
and independent obligation on that party which does not limit any other indemnity.
Estimate of Fees
Any estimate of anticipated fees for Services provided prior to or during the course of the Engagement is our best estimate of the effort that will be required to complete the Services based on the information available at the time. Under no circumstances shall this estimate be deemed a maximum fee or fixed price. It is not a quotation, and it is subject to change. If your instructions and/or requirements do alter, or if more information comes to light that changes the scope of work, we will charge you accordingly.
Our professional staff record the time they spend on a particular matter and each professional has an hourly charge-out rate that reflects their experience or skill level, as set out in the attached Schedule of Rates and Fees. This method of time costing applies to all work, such as telephone calls, consulting, conferences, attendance at Court, travelling, and waiting time. The time spent will be calculated by reference to 15 minute units of time. Any unit less than 15 minutes will be rounded up to 15 minutes.
Should you, your client or Counsel request us to undertake any additional work beyond of the stated Scope of Engagement, we will undertake that work without providing you with a further cost estimate for that work, unless you specifically request us to do so. However, this additional work is not included in the original estimate of costs. You will be responsible for payment of our fees in accordance with these Terms.
We may also agree with you to charge on a fixed fee, capped-fee, value-based charging, time-based costing up to cap, a mix of these with time-based charging or another basis for a particular work matter(s).
Unless otherwise agreed, we will provide you with an estimate of the total fees likely to be incurred for the work you have instructed us to do, if it is reasonably practicable to do so or, if it is not reasonably practicable, provide a range of estimates of the total fees and an explanation of the major variables which will affect the working out of fees (Fee Estimate).
We may change these Terms and our Schedule of Rates from time to time by written notice to you. You are entitled to terminate our engagement if you do not agree to the changes. You will be deemed to have accepted any revised Terms and Fee Rates if you continue to provide us with instructions following receipt.
We reserve the right to deny or withdraw any individual or group, from the use of our services without explanation or cause, and to refund any associated fees paid for the relevant service.
You will also be charged for any expenses and disbursements (being money we pay or are liable to pay to others) that we incur on your behalf. These expenses and disbursements will appear separately on your invoice.
In the course of performing a recovery or examination of hard drives, it may be necessary for some physical components to be dismounted and/or replaced. These actions may result in permanent destruction of the hard drive itself.
Payment of our Fees will be required from you 7 days from invoice date. We reserve the right to suspend our services if payment is not made within 7 days.
Reasonable and necessary business and travel expenses, including the cost of couriers, incurred by CBIT shall be reimbursed by the Client. Travel time will be charged for site visits less than 3 hours in duration and/or further than 5 kms from the CBD.
If CBIT brings a legal action to collect any sums due under these Terms of Business it shall be entitled to collect, in addition to any damages, its costs of collection, including reasonable solicitor’s fees and interest on overdue amounts. A rate of interest equal to the Australian Taxation Office’s General interest charge (GIC) rates may be charged on amounts which are overdue by more than 30 days.
Any fee estimate is given in good faith but is not contractually binding.
Our fees will be reviewed at the end of the engagement period, unless there is a significant change to your business operations and/or requirements before then.
All amounts payable under these Terms of Business are calculated or expressed exclusive of GST, unless otherwise stated.
If GST is payable by a party (Supplier) for a supply under these Terms of Business to the other party (Recipient) the Recipient must pay to the Supplier an amount equal to the GST payable on that supply in addition to the GST exclusive amount payable for that supply.
If any payment to be made to a party under or in connection with these Terms of Business is a reimbursement or indemnification of an expense or other liability incurred or to be incurred by that party, then the amount of the payment must be reduced by the amount of any input tax credit to which that party is entitled for that expense or other liability, such reduction to be effected before any increase in accordance with these Terms of Engagement.
Advisory Staff and Subcontractors
CBIT will engage sufficient staff and/or subcontractors as required to perform the Services. These staff are at all times employed by, and under the direction of CBIT. Should You have any feedback or concerns regarding one of our staff or subcontractors this should be directed to the Supervisor or Manager.
CBIT is responsible for the performance and ongoing training and development of our staff and subcontractors. For various reasons, at times the staff members assigned to Your account may be changed. When this occurs, CBIT will incur all necessary costs of training the new staff member on Your accounts and We will do our best to ensure minimal disruption is caused.
For the duration of the Term, and for a period of 12 months after our engagement terminates or completes, You will not
employ, or procure a third party to employ, any employee or subcontractor of CBIT‘s who has been involved in the performance of the services unless:
- agreed to by us in writing;
- the member of staff or the subcontractor accepts the offer; and
- You agree to pay us a recruitment fee of 15% of the gross salary offered inclusive of superannuation.
CBIT shall comply with all office rules and regulations, including security requirements, when on the Client’s Premises
During the performance of the Services, we may supply oral, draft or interim advice, reports or presentations but in such circumstances our final written report will take precedence.
Retention of records
At the end of the Engagement, you will have several options relating to the documents or copies of documents that we do not need to retain. You can have us return all such documents to you, authorise us to destroy them (where that is appropriate) or direct us to store them at your cost. Please provide us with your instructions in relation to this at the end of the Engagement. We reserve the right to destroy the documents where that is appropriate if we do not receive your instructions within one month of completion of the Engagement.
You agree to notify us promptly of any request from any Court or applicable regulatory authority with respect to the Services.
If we are required by law, pursuant to government regulation, subpoena or other legal process or requested by you to produce documents or personnel as witnesses arising out of the Engagement and we are not a party to such proceedings, then our Schedule of Rates will apply for professional time and expenses, including, without limitation, reimbursement of any reasonable legal fees, incurred by us in responding to any such requests.
If requested or required by law, subpoena or other legal process, to provide information and documents relating to this matter to a third party (including any Registrar or Court), we will inform you as soon as practicable so that you have the opportunity to take steps to minimise any such disclosure. We will only disclose the information and documents that are required by the applicable process and we will comply with any disclosure regime that may be established in the matter.
Where you provide any document to us in respect of which you wish to assert legal privilege, you must clearly mark such documents “privileged” and advise us in writing that you wish to maintain that legal privilege.
You recognise and accept the risks associated with communicating by Internet e-mail, including (but without limitation) the lack of security, unreliability of delivery and possible loss of confidentiality and privilege. Unless you request in writing that we do not communicate by e-mail, you assume all responsibility or liability in respect of risk associated with its use.
Neither of us will be liable to the other for any delay or failure to fulfill their obligations under these Terms of Business to the extent that any such delays or failures arises from causes beyond their control, including fire, floods, acts of God, acts of regulations or any governmental or supernational authority, war, riot, terrorist activities, strikes, lockouts and industrial disputes.
Termination of Engagement
If you wish to terminate this Engagement, you must provide at least 2 days notice in writing to us of the termination. We will endeavour to cease work as soon as practicable upon receipt of the notice. However, you acknowledge and agree that we may not be able to cease work immediately if we are giving evidence in Court or have travelled away from Canberra to provide the Services.
We will invoice you for all Services and disbursements as soon as possible after termination.
Withdrawing your instructions or ceasing to act
You may withdraw your instructions for us to act for you at any time by giving us reasonable prior written notice. We may cease acting for you (completely or for such time as we believe appropriate) by giving you reasonable notice at your last recorded address (including email address) with us, if:
- our fees, disbursements or any other amount requested by us (such as money on account) are not
paid by the due date,
- proper instructions and information to enable us to provide our services are not made available when requested,
- we believe that there may be a conflict of interest in our continuing to act for you, or
- other circumstances arise where, in our reasonable opinion, it is reasonable for us to cease acting for you.
Our Letter of Engagement, including these Terms of Business and all aspects of the performance of our Services for you are governed by, and we each agree to be bound by, the law of the Australian Capital Territory. Both you and we irrevocably submit to the exclusive jurisdiction of the courts of the Australian Capital Territory.
This Letter of Engagement will prevail over the General Terms and Conditions to the extent of any inconsistency between them. It replaces and supersedes any previous proposals, correspondence, understandings or other communications (written or oral).
Your Action Required
Once you have read this engagement letter and agree to our terms of business, please sign the letter to indicate that it is in accordance with your understanding of the agreement. We look forward to supporting you in your business endeavours.