Rimon Standard Terms and Conditions of Business v1.7
Last updated 18/05/2020
(a) These Terms of Business are to be read together with our engagement letter to you. They apply to all services that we perform for you that are described in that letter (called “the Services”). Together, the letter and these Terms of Business are called “this Agreement” or “Contract”. If the two documents are inconsistent, the terms in the engagement letter will take precedence over these standard Terms of Business.
(b) Under this Contract the terms “Rimon”, “We” or “Us”, shall mean Rimon Advisory Pty Ltd.
(c) The terms “Client” or “You”, shall mean the party referred to in the engagement letter as the Client.
(a) For the purposes 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 Rimon 's working papers, any proposal or tender document, information and methodologies, but does not include any information which:
(i) is or becomes generally available to the public other than as a result of a breach of this clause:
(ii) is known to either party prior to Rimon starting to provide the Services; or
(iii) is received from a third party who owes no obligation of confidence in respect of the information.
(b) Neither Rimon nor the Client may disclose Confidential Information about or belonging to the other without the other’s consent.
(c) Notwithstanding the above either party may disclose Confidential Information:
(i) to its insurers or legal advisors, provided that the Confidential Information remains confidential;
(ii) if required to do so by law; or
(iii) if required for the proper performance of the Services.
(d) Subject to clause 2(b), we may cite the performance of the Services to clients as an indication of our experience.
- Intellectual Property
Unless otherwise specified in the engagement letter, intellectual property rights in all documentation, systems, materials, methodologies and processes brought to the engagement by Rimon shall remain in Rimon.
- Performance of the Services
(a) To perform the services successfully, we require your timely cooperation, including:
(i) providing in a timely fashion all information and documents that we reasonably require to enable us to provide the Services and your staff to work with us;
(ii) arranging access to third parties where applicable;
(iii) ensuring that the appropriate back-up, security and virus checking procedures are in place for any computer facilities you provide;
(iv) making senior executives available for consultation on request;
(v) providing reasonable working facilities for us; and
(vi) making decisions promptly to facilitate the performance of the Services.
(b) The scope of the Services is limited to the work specified in the engagement letter. Either of us may request changes to the Services but no changes take effect unless agreed in writing.
(c) 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 Service. 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 the engagement letter, we will not verify the accuracy and completeness of such documentation or information.
5.1 Rimon will use reasonable skill and care in providing the services.
5.2 The liability of Rimon for loss or damage arising from or in relation to the Services, whether arising from a breach of contract, tort or otherwise, is limited to the liability cap set in our engagement letter or proposal under the heading “Liability” (“Liability”). Where no amount is stated, the Liability Cap is an amount equal to the fees paid by you, or in the case of a monthly retainer, the monthly fees payable by you for the Services.
5.3 To the extent permitted by law, Rimon excludes all liability for any indirect, incidental or consequential expense, loss, damages or cost (including, without limitation, 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 arising in any way out of or in relation to the Services.
5.4 You agree to indemnify and hold harmless Rimon , and our respective partners 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 Rimon for all costs and expenses (including legal fees on a solicitor/client basis) incurred by Rimon in connection with any such action or claim.
- Fees and Expenses
6.1 Our fees for the Services will be charged on the basis set out in our engagement letter. Where applicable, Goods and Services tax (“GST”) at the prevailing rate will be added to and form part of our fees.
6.2 Unless otherwise specified in our engagement letter, fees and expenses will be invoiced monthly and are payable within 7 days. We may charge you a commercial rate of interest on accounts which are overdue more than a month. Any fee estimate is given in good faith but is not contractually binding.
6.3 Where we agree in our engagement letter that all or part of our Services shall be performed on a success fee basis, then unless otherwise specified, you shall pay our fees which relate to the success criteria, on the latter of 7 days from date of invoice or where applicable, upon receipt by You of relevant grant money upon which the success fee is based. Late payment of any fees which relate to performance of Services on a success basis, may result in immediate suspension of Services and shall release Us of any future obligation in relation to the Service including future assistance with government audits in relation to grants received.
6.4 We revise our fee scale annually.
6.5 With regards to the Export Market Development Grant (EMDG), unless otherwise agreed, we shall receive any payment from AusTrade into our bank account on behalf of the Client. Once payment is received from AusTrade we will deduct our fees owing, as per the engagement letter, and pay the balance to the Client's nominated bank account. We will endeavour to make payment within 7 business days of receiving the funds from AusTrade and receiving the Client's nominated bank account details.
6.6 If we receive any legally enforceable notice or demand issued by any third party, including the Australian Securities & Investments Commission, the Australian Taxation Office, and the Australian Stock Exchange, any government statutory body or instrumentality, or in 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 expense are not recovered or recoverable from the party issuing the notice or demand.
- Services solely for Client benefit
The Services will be provided solely for your benefit and use, unless provided otherwise in the engagement letter, confirmation letter or proposal. Accordingly, you must not provide any documentation or deliverables in respect of the Services to any third party without our written consent. We accept no responsibility for any third party in respect of the Services.
- Use of Software
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 purpose 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. We make no representations or warranties as to the sufficiency or appropriateness of the tools for any purpose of which you or a third party may use them.
- Electronic communications
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 most commonly known viruses before sending information electronically, but we will not be liable to you in respect of an error, omission or loss of confidentiality arising from our system 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.
- Subcontractors and third parties
10.1 We reserve the right to employ subcontractors, and any reference to our staff includes subcontractor staff.
10.2 Where you are using third parties, you will be responsible for the management of those third parties and the quality of their input and work.
- Term and termination
11.1 This Contract will apply from the commencement date stated on our proposal, engagement or confirmation, or where no commencement date is specified, from the earlier of commencement of work by us or the date of the acceptance of the Contract as specified in our proposal, engagement or confirmation.
11.2 Subject to clauses 13.2, 13.3 and any statutory provisions that apply to the Services, either party may terminate this Contract at any time by giving at least 4 weeks 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 together with our reasonable costs and expenses incurred in connection with the termination of the Contract.
11.3 In the case where the Services and fees are on a success based engagement, You may terminate this Contract prior to commencement of any work by Us relating to that Service for any given year or after all fees have been paid to Us in relation to successful outcome of the engagement.
11.4 For the avoidance of doubt, the date of termination shall be the date upon which any period of notice expires and all fees outstanding have been paid by you.
11.5 On termination or completion of this Contract, we may retain our working papers and documentation or software prepared by us or any other documentation upon which our Services are based to enable us to maintain a processional record of our involvement. You may retain your originals and any copies of our reports and letters made in accordance with the provisions in this Contract.
11.6 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.
- Not Legal or Professional Advice
You understand and agree, that although some of our staff may be professional lawyers, our service to you specifically excludes the giving of any legal advice, accounting, tax, or professional advice. A separate agreement with one of our affiliated law firms or accounting firms can be entered into if such professional advice is sought. Liability for any advice given is explicitly excluded under this Agreement.
13.1 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.
A failure or delay by a party in exercising a power or right given to it under this Contract does not operate as a waiver of that power or right; nor does a single or partial exercise of a power or right prevent any other 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.
You accept and acknowledge that we have not made any warranties or guarantees of any nature in respect of the services or 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 Services.
13.4 Address for service
Any written notice to be given to a party may be delivered in person, by letter, by electronic mail, or by facsimile transmission, to:
(a) in the case of notices to us, to our address, appearing in our engagement letter, confirmation letter or proposal; and:
(b) in the case of notices to you, to the address last notified by you.
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.
This agreement will be governed under the laws of NSW.
13.7 Force majeure
Neither of us will be liable to the other for any delay or failure to fulfill their 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, floods, acts of God, acts or regulations of any governmental or supernatural authority, war, riot, terrorist activities, strikes, lockouts and industrial disputes.
13.8 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).
13.9 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.
This Agreement can only be varied in writing by mutual agreement of the parties.
14 Assistance with audits
14.1 Unless otherwise specified in our engagement letter, we will assist with any government audits that may arise as a result of our Services.
14.2 Unless otherwise specified in our engagement letter, our assistance with audits that relate to the R&D Tax Incentive will be limited to 10 hours per year. Thereafter we will be entitled to charge a fee for our assistance with the audit. This fee will be agreed in writing prior to work commencing on the audit response.
14.3 For the Export Market Development Grant (EMDG), our fees do not include assistance with an appeal of an AusTrade determination. Should the Client wish to appeal an AusTrade determination, Rimon will be entitled to charge a fee for assistance with this process.
14.3 You are obligated to notify Us of an audit as well as include Us in the audit process.
14.4 Our assistance with audits is only included where we have prepared and submitted the application for the particular grant and year being audited. Where Rimon has not prepared or submitted the grant application, Rimon will assist with the audit process at the Client's request but a fee will be charged for this.
14.5 If an external service provider is required to assist with an audit, this cost will passed onto the Client and will be agreed in writing before being incurred.