Mandate Terms and Conditions for Consulting Engagement
GENERAL TERMS AND CONDITIONS OF ENGAGEMENT
Our engagement terms include our mandate letter (including any schedules and attachments) and these business terms and replace any earlier agreement between us in relation to the matter described in the mandate letter.
The scope of the services we will provide is described in the mandate letter to which these terms are attached.
TERM OF ENGAGEMENT
3.1 Both parties may give written notice to the other of not less than 30 days to terminate the Engagement
on expiry of the notice period.
3.2 If either party fails to perform any material obligation under the Mandate, and does not remedy the failure within 14 days of being required to do so, the other party may terminate the Engagement with immediate effect, without prejudice to any other available right or remedy.
3.3 Termination of the Engagement does not in any way affect your or our respective rights accrued up to the effective time of termination. Nor does it in any way affect this paragraph 3.3, or paragraphs 5.3, 10, 11 or 12 below, all of which will remain enforceable in accordance with their terms.
4.1 You agree to provide us as soon as reasonably possible from time to time with all information relating to you and the members of your Group (including your and their respective strategies, prospects, corporate affairs, personnel, businesses, customer and supplier relationships, assets, liabilities, profits and losses) that is or might reasonably be regarded as being relevant to us:
(a) for the purpose of advising you; and
(b) for the purpose of us agreeing to accept the Engagement.
You agree to provide us with particular information that is relevant to the Engagement including access to all appropriate directors, officers, employees, auditors and advisers of the Group where relevant to the Scope of Work, when we reasonably request it. As stated above, our advice will be based on our understanding of your company and its objectives as explained by you, as well as other information provided by you.
4.2 We are entitled to rely on all such information without independent verification, but to the extent that we become aware that information supplied to us is incompatible, untrue, inaccurate or misleading we will notify you as soon as practicable. You will notify us as soon as practicable if you subsequently discover that any information you have provided is incomplete, untrue, inaccurate or misleading.
5.1 Subject to paragraph 5.2 below:
(a) both parties agree to treat as strictly confidential and not to disclose any information received or obtained as a result of entering into or performing the Mandate. Specifically, you agree not to disclose or refer to our advice in any publication issued by you or any member of your Group without our prior written consent;
(b) our respective obligations under this paragraph 5 will cease after two years from the end of our engagement;
(c) both parties agree to ensure that, in your case, the members of your Group, and in our case, our Associates, and the respective directors, officers, employees, agents and advisers observe the provisions of this paragraph 5 as if they were bound by it (and any breach of its terms by any of them will be deemed to be a breach by whichever of us fails to ensure that they so behave).
5.2 Each of us can disclose information which would otherwise be confidential if and to the extent:
(a) required by the law of any relevant jurisdiction or for the purposes of any judicial proceedings, including any judicial proceedings to enforce this letter; or
(b) required by (or reasonably necessary for the purpose of this letter or any transaction contemplated in it to be disclosed to) any recognised investment exchange or regulatory or governmental body, to which either of us is subject or submits; or
(c) the information is disclosed to a director, officer, employee or agent of yours or ours (or of any member of your Group) whose function requires him or her to have the information; or
(d) the information has come into the public domain otherwise than through the fault of the disclosing party; or
(e) the information relates to you or your Group and is comprised in any document which is reasonably required to implement any transaction contemplated in this letter; or
(f) the other has agreed to the disclosure in writing,
but both parties can only disclose under paragraphs 5.2(a) and 5.2(b) above after consultation (where practical) with the other. If either of us makes any disclosure under paragraph 5.2(a) or 5.2(b) above, the other party must be informed of the disclosure by the disclosing party as soon as reasonably possible, unless the disclosing party is prohibited by law against informing the other party of any such disclosure.
5.3 You agree that we may nominate you for inclusion as one of our clients in any publication that we reasonably consider to be reputable, and you agree to consent to your inclusion accordingly if the relevant publisher asks for it. You may at any time notify us that you do not wish to be so included in a particular publication, or any such publications.
5.4 All correspondence and papers that we hold in connection with acting for you are our property (except for original contracts, share certificates and other documents of title expressly held to your order).
6.1 You agree that any advice or reports that we may provide to you during the course of the Engagement may only be relied upon and used by you for the purposes of the Engagement and may not be disclosed to or used by any other party. You agree that we will not provide you with any tax, legal, accounting or regulatory advice and that you will be responsible for obtaining your own specialist advice in these and other areas.
6.2 We will not be liable to you for any failure or delay in the performance of our obligations under the Mandate if such failure or delay arises from circumstances beyond our control, including the untimely performance by you of your obligations under the Mandate. In addition we are entitled to review our fees or terminate the Engagement should there be any delays that we reasonably believe are substantial.
6.3 We accept no liability or responsibility for implementation of any advice that we give you, any actions you take as a result of our advice and you acknowledge that advice of the nature we provide is subject to a range of factors which are beyond our control and subject to constant change and uncertainty.
6.4 We have agreed to provide services to you alone under the Mandate and we do not regard any person other than you (including any of your investors, lenders, shareholders, directors, officers, employees, agents or advisers) as our customer in relation to the services. Any such other person should seek his, her or its own advice. Only you may use and rely on our advice, and then only for the purpose for which it is initially given.
6.5 You agree to respect our professional independence and that our engagement and the provision of the services under the Mandate is not and is not to be taken or represented as an endorsement by us of the business of your Group or any of the products or services of your Group.
LIMITATIONS OF LIABILITY
7.1 You agree that for any loss or damage sustained by you in relation to this agreement (including interest and costs), we are only liable to the extent of our fees (excluding GST) rendered for services in relation to this Mandate.
7.2 We are not liable:
(a) To the extent that you are responsible for an act or omission that contributed to your loss.
(b) For any indirect or consequential costs, loss or damage or loss of profits.
(c) For any defect of deficiency in any system or service that is not developed or provided by us under this Mandate.
NO FIDUCIARY RELATIONSHIP
The parties agree that it is not the intention of the parties to create a fiduciary relationship between them. Without limiting the foregoing, you acknowledge and agree that:
(a) you are contracting with us on an arm’s-length basis and as an independent contractor and not in any other capacity to provide the services as set out in this letter;
(b) we have not acted, are not acting and will not act in a fiduciary capacity with respect to you and neither a previous nor existing relationship between us and you will be deemed to create a fiduciary relationship;
(c) we have not assumed and are not assuming any duties or obligations other than those expressly set out in this letter; and
(d) in the ordinary course of our business, we or our Associates may at any time hold long or short positions, and may trade or otherwise effect transactions, for our own account or the accounts of our customers, in debt or equity securities or senior loans of you, any of your related parties or any third party.
9.1 You agree that we retain all copyright and other intellectual property rights in everything we develop or propose or are involved in developing or proposing either before or during the course of the Engagement. We also retain all copyright and other intellectual property rights in all reports, written advice, presentations, memoranda or any other written materials we provide to you. You may not use or distribute these materials outside your Group without our prior written consent.
9.2 You agree that we may insert or use your logos and other similar intellectual property belonging to your Group on reports, written advice, presentations, memoranda or other written materials that we produce in the course of the Engagement. We acknowledge that such use does not amount to any transfer of ownership to us.
FEES, EXPENSES AND PAYMENT OF INVOICES
10.1 Fees will be payable in Australian Dollars, in cleared funds free of all costs and taxes, without any deduction or withholding of any kind, so that the net amount received by us is the same as the gross amount payable if no withholding or deduction were made. All fees will be converted into Australian Dollars, where necessary, using the official exchange rate published by the Reserve Bank of Australia on the date of the invoice.
10.2 In addition to fees, you will reimburse us on request for all out-of-pocket expenses we incur in connection with the Scope of Work (such as printing and distribution of any marketing materials, meals, travel and accommodation). We agree not to incur any single out-of-pocket expense exceeding $5,000 without your prior approval.
10.3 You must pay all invoices for our fees and expenses that we issue to you pursuant to the Mandate within seven days of the date of the invoice, or as otherwise agreed. You must pay us interest on overdue account balances at the 90 day bank bill swap rate plus a margin of 5%.
10.4 GST will be levied on all fees and out-of pocket expenses to the extent they are taxable supplies under A New Tax System (Goods and Services Tax) Act 1999.
11.1 You indemnify and hold harmless (and keep indemnified and held harmless) each Indemnified Person on demand against each loss, liability, and all costs and expenses actually payable (including to its legal representatives whether under a costs agreement or not) which the Indemnified Person suffers or incurs because of or in relation to:
(a) the performance of obligations, or the provision of services, by us or on our behalf under or in relation to the Mandate, the Engagement or otherwise;
(b) a breach by you of a provision of the Mandate;
(c) material non compliance by you or any Associate with any Applicable Law;
(d) any review or investigation taken by ASIC or the ASX (or any analogous authority in jurisdictions outside Australia) as a result of any actual, alleged or asserted failure to comply with the conditions and requirements of any regulation other than by the Indemnified Person; and
(e) investigating, defending or settling an actual or potential claim for which you may be liable under this paragraph 11.1.
11.2 You are not liable under paragraph 11.1 if and to the extent that an Indemnified Person is finally determined to have suffered or incurred a particular loss because of fraud, negligence or wilful default (which, for the avoidance of doubt, will include having disregard of matters of which we have actual knowledge) of an Indemnified Person or our having committed a breach of any of our obligations under the Mandate.
11.3 If you become aware of any third party claim or potential claim against you or of any matter that might give rise to such a claim (“third party claim”) and that might lead to a claim against an Indemnified Person, you:
(a) must give us written notice of the third party claim as soon as is reasonably practicable; and
(b) must not, and must procure that no member of your Group will, without our prior written consent, which will not be unreasonably withheld or delayed, settle or compromise or in any way admit liability for, that third party claim.
12.1 Nothing in the Mandate or any document executed under or in connection with it creates a partnership
or joint venture between us or makes you our agent for any purpose.
12.2 The Mandate is of no effect if we have not signed it. This letter may be executed in any number of counterparts, each of which when executed and delivered is an original, but all the counterparts together constitute the same document.
12.3 The terms of the Mandate may only be varied in writing signed by or on behalf of each of the parties.
12.4 You agree to do and execute, or arrange for the doing and executing of each necessary act, document and thing reasonably within your power to implement the Mandate. Your having engaged us pursuant to the Mandate confers on us all powers, discretions and authorities necessary or desirable in connection with the performance of our obligations under or in connection with the Mandate or the Engagement.
12.5 If you or we fail to exercise, or delay in exercising, a right or remedy provided by the Mandate or by law that does not constitute a waiver of the right or remedy or a waiver of other rights of remedies. No single or partial exercise of a right or remedy provided by the Mandate or by law prevents further exercise of the right or remedy or the exercise of another right or remedy. Our and your rights and remedies under this letter are in addition to, and do not operate to restrict, the rights and remedies available to you or us under Australian law and are not affected by completion of anything referred to in this letter. You and we agree that damages may not be an adequate remedy for a breach by you or us of the Mandate. Accordingly, subject to the discretion of the courts, you and we agree that the remedies of injunction and specific performance may be appropriate to deal with any actual or potential breach by you or us of the Mandate.
12.6 If any provision of the Mandate is illegal or unenforceable, this does not affect the enforceability of any other provision of the Mandate.
12.7 The Mandate constitutes the entire and only agreement and understanding between you and us. You and we each agree that in entering into this letter neither of us relies on, and neither of us shall have any remedy in respect of, any statement, expression of opinion, representation, warranty or understanding (whether negligently or innocently made) of any person other than as expressly set out in the Mandate.
12.8 Neither you nor us can assign or otherwise deal with the whole or any part of the Mandate except with the prior written consent of the other of us.
12.9 The Mandate is governed by the laws of Western Australia and the parties submit to the non-exclusive jurisdiction of the courts of Western Australia.
13.1 In this letter, where applicable, the following definitions are used:
Board Company Engagement Group
in relation to a person, all applicable laws and regulations in each relevant jurisdiction and the requirements of any regulatory or governmental body to which the person is subject or submits
Tambaroora Pty Ltd, A.C.N. 082 702 912, each of its related bodies corporate and any undertaking which any of them controls, including any investment fund of which any of them are the responsible entity or in which they hold a controlling interest and “Associates” means all of those undertakings
the board of directors of the Company from time to time
[COMPANY] (A.B.N. COMPANY ABN)
our engagement on the terms of this Mandate
the Company and each of its parent undertakings and its and their respective subsidiary undertakings, and any undertaking which any of them controls include, includes and including
Indemnified Person Loss
Scope of Work We or OLC
must be construed as if they were immediately followed by the words “without limitation”
us and each of our directors, officers, employees and agents
includes all claims, demands, actions, proceedings, losses, liabilities, damages, costs and expenses
these Conditions and the mandate letter to which these Conditions are attached
includes natural persons, firms, partnerships, companies, corporations, bodies corporate, associations, organisations, governments, states, governmental or state agencies, foundations and trusts (in each case whether or not having separate legal personality and irrespective of the jurisdiction in or under the law of which it was incorporated or exists)
the services contemplated in the Mandate.
Tambaroora Pty Ltd, (A.C.N. 082 702 912) as trustee for the Hunter Family Trust, Trading as Operational Leadership Consulting (OLC) and “our” and “us” must be construed accordingly
Means COMPANY and “your” must be construed accordingly
13.2 Headings do not affect the interpretation of the Mandate.
13.3 Where a word or expression is given a particular meaning, other parts of speech and grammatical forms
of that word or expression have a corresponding meaning.
13.4 A provision of the Mandate must not be construed to the disadvantage of a party merely because that party was responsible for the preparation of the Mandate or the inclusion of the provision in the Mandate.
13.5 In the Mandate, unless otherwise stated, a reference to:
(a) one gender includes the others;
(b) the singular includes the plural and the plural includes the singular;
(c) a person includes a body corporate;
(d) a party includes the party’s executors, administrators, successors and permitted assigns;
(e) a paragraph is to the relevant paragraph of this document;
(f) any appointment or agreement made or instruction or undertaking given by you is to be construed as if made or given irrevocably and unconditionally;
(g) any power, authority or discretion conferred on or to be exercised by us is to be construed as being absolute and unfettered;
(h) a document is a reference to the document as from time to time supplemented or varied; and
(i) a statutory provision includes a reference to the statutory provision as modified or re-enacted or both from time to time after the date of the Mandate, and any subordinate legislation made under the statutory provision after the date of the Mandate except to the extent that such change would otherwise create or increase any liability or burden for any party.