This agreement (Agreement) sets out the terms on which you will be provided services (Services) by Automic Pty Ltd trading as the Automic Group (Automic).
This Agreement will apply to all engagements between you and any member of the Automic Group. From time to time, a member of the Automic Group may enter into a separate and distinct contract with you in which case this Agreement will be in addition to that contract. In the event of any inconsistency between terms of this Agreement and any other contract, the terms of that additional contract prevail.
In this Agreement:
(a) Automic Group means Automic and any of its related bodies corporate from time to time including but not limited to Automic Legal Pty Ltd (Automic Legal) and Automic Finance Pty Ltd (Automic Finance);
(b) CFO Services means the provision of financial services including but not limited to any accounting, bookkeeping, financial reporting and ancillary services by Automic Finance;
(c) Company Secretarial Services means the provision by either Automic Legal and/or Automic Finance of a named company secretary and/or associated company secretarial functions and ancillary services;
(d) Holders means any shareholders, unit holders and security holders of any company’s issued capital;
(e) Legal Services means any legal services provided by Automic Legal;
(f) Registry Services means those services listed as Registry Services in the Services Schedule and includes access to RegistryPRO; and
(g) Services means the Registry Services and any additional services agreed to be provided by Automic from time to time in accordance with this Agreement.
If you want more information about the various service offerings of the Automic Group, which include company secretarial, finance and legal services, please do not hesitate to ask us, or click here.
1. YOUR RELATIONSHIP WITH US
1.1 Automic will provide you with any of the Services listed in the Services Schedule as agreed from time to time.
1.2 For avoidance of doubt, Legal Services shall only ever be provided by Automic Legal. Automic Legal may request that you enter into a separate costs agreement and disclosure with it on terms pursuant to the Legal Profession Uniform Law (NSW). Unless you have entered into such separate agreement it is assumed that Automic Legal is not acting for you in the capacity of a solicitor.
1.3 You agree that where you are a partnership, group or trade and/or operate as a collective of persons, each partner, group member or person as the case may be, agree to the terms set out herein and are jointly and severally liable for your obligations arising from this Agreement.
1.4 Automic is the agent and trustee for the Automic Group and holds the rights of each member of the Group on trust. You acknowledge and agree that each member of the Automic Group may independently rely on and enforce this agreement.
2. OUR FEES
2.1 Our invoices are payable within 14 days of issue to you.
2.2 Our rates and fees for any of the Services, as listed in the Fee Schedule are expressed exclusive of GST. Any applicable GST on Services will be added to your invoice.
2.3 For any Registry Services, you will be charged the applicable Monthly Service Fee specified in the Fee Schedule. The applicable Monthly Service Fees is calculated based on the applicable band of the total number of your Holders at any time. Where in any calendar month, the total number of your Holders exceeds the maximum number of any Holders for an applicable band identified in the Fee Schedule, the Monthly Service Fee will increase accordingly on and from that relevant month inclusive.
2.4 For any additional services as specified in the Service Schedule and/or services which are out of scope and performed on your request, we will charge a minimum consulting rate listed in the Fee Schedule equivalent to 1 hour for such services and where any such service requires more than 1 hour, additional time will be charged on the basis of 6 minute units and rounded up or down to the nearest unit. For example, the time charged for services requiring 1 hour and 10 minutes will be equivalent to 12 units.
2.5 We may incur disbursements (being money which we pay or are liable to pay to others) on your behalf. Disbursements may include, without limitation, ASIC fees, ASX fees, banking fees, identity verification database search fees, printing, mail and couriers, search fees, telephone and conference call costs, file storage and archive costs, on line data and deal room costs, travel expenses, or (to facilitate issue of a single invoice from the Automic Group) fees payable to another member of the Automic Group for provision of any Services. Disbursements will be added to your bill and, in some cases, may include a margin to be determined at our discretion.
2.6 If an invoice remains unpaid after 14 days of its issue:
(a) you agree that we may be entitled to charge interest. Unless otherwise agreed, such interest will be at the BBSW rate plus 2%;
(b) on giving you written notice, we may immediately cease work on all or any of your matter(s) or provision to you of any of our Services. We may cease providing Services by any or all of the members of the Automic Group, irrespective of which member your unpaid invoice is owed to.
2.7 Notwithstanding any other provision in this clause, you agree that if an invoice remains unpaid for:
(a) 31 days from the date of its issue, we may suspend providing all Services to both you and your Holders, including but not limited to suspending access to any of our technology products (excluding CHESS connectivity);
(b) 45 days from the date of its issue, we may suspend CHESS Connectivity services if the invoice remains unpaid for 45 days.
2.8 You agree that we are not responsible for and you hold us harmless against any damage or loss resulting from or incurred by you as a result of such cessation and/or inactivity by reason of clauses 2.6 or 2.7 above.
2.9 Subject to any laws and professional regulations, you agree that we may exercise a lien over your files and documents until all of our invoices have been paid in full.
2.10 On or about 1 July each year, we are entitled to increase any of the charges, fees and rates specified in the Fee Schedule or any other quoted fees. At a minimum, such increase will correspond any increase in the Consumer Price Index (CPI) over the previous 12 months in the Average Weekly Ordinary Time Earnings, as published by the Australian Bureau of Statistics. If our fee increase corresponds with CPI only, you agree that we may increase all applicable charges, fees and rates once per annum, without further notice.
3. MONEY HELD ON ACCOUNT FOR YOU
3.1 We will deposit any money we hold on your behalf with a regulated financial institution and manage it in accordance with the laws and professional regulations applicable to us. You agree that we are not responsible for any loss of funds so deposited and managed.
3.2 If we hold funds in trust for you, including if you deposit money with us on account of our fees or disbursements (including but not limited to any bank fees), unless you and we have agreed otherwise, we may apply any part of the money held in trust in payment of any invoices we submit to you, without further authorisation.
3.3 You agree and acknowledge that Automic is entitled to retain any interest earned on funds we hold on trust for you.
4. COMMUNICATING WITH US
4.1 You agree that we may communicate with you using electronic means, knowing that certain risks (including, for example, interception, unauthorised access and risk of viruses) are associated with such means of communication.
4.2 You agree that we may request you to nominate authorised representative(s) who are the only people entitled to give instructions to us on your behalf. Your authorised representative(s) are the only people entitled to instruct us and we are not liable in any way whatsoever for relying on their instructions. You agree that we will ignore and disregard instructions or requests from anyone not duly authorised by you. You may at any time, give us written notice to change your authorised representative(s).
5. CONFIDENTIALITY, CONFLICT OF INTERESTS, AND OUR RELATIONSHIPS WITH OTHER CLIENTS AND SUPPLIERS
5.2 You agree that we may disclose any relevant information in order to protect and/or defend ourselves in any actual or threatened legal proceeding and may also disclose any relevant information in confidence to our insurers, insurance brokers, auditors, bankers and other advisers if and to the extent such disclosure may occur without waiving or losing any applicable legal privilege.
5.3 You agree that, unless you instruct us otherwise, we may disclose any relevant information to your other professional advisers, including to other Automic Group companies (even if those other Automic Group companies do not have a direct professional or other relationship with you). You acknowledge that professional advisers employed by us may have a personal financial interest in recommending the services of other Automic Group companies and provide your consent to them nonetheless doing so.
5.4 Except as may be provided in applicable additional standard provisions or an agreement between us and you, we will not act where a conflict of interest – or a significant risk of such a conflict – exists, unless we are permitted to do so under the laws and professional regulations applicable to us and, where required, with your consent. However, we service a large number of clients and may not always be able to anticipate all such occasions; please inform us promptly if you become aware of any such circumstances.
5.5 You agree that, where any conflict arises in respect of any of our Services, such conflict shall not affect our ability to continue to provide Registry Services to any party, nor shall it prevent us providing a software based Service to any party.
5.6 You agree that we may act for other clients in transactions or disputes in which you or any affiliated entity of yours has an interest provided that we do not thereby breach our duty of confidentiality to you.
5.7 You agree that we are under no duty to disclose to you or use on your behalf any information in respect of which we owe a duty of confidentiality to another client or any other person.
5.8 We have no duty to provide you advice concerning changes in laws, rules or regulations that might affect your rights unless expressly retained to do so. Further, if we and/or Automic Legal are not under instructions from you at a given point in time to provide Legal Services, you agree that, unless prohibited by applicable laws or regulations, we are entitled to accept other instructions to act in respect of the subject matter of your previous instructions although we will not disclose to, or use for the benefit of, another client any information or documents in respect of which we owe you a duty of confidentiality.
5.9 We may refuse to perform an instruction if we consider it to be unlawful, unethical or unprofessional.
5.10 You agree that we may disclose our role in any matter on which we are instructed following its completion, for the purposes of publicity, unless you instruct us otherwise. You also agree that, unless you instruct us otherwise, we may publicise the fact that we have a relationship with you, including by publishing your name, brand and logo in any marketing materials, without any further act of consent required from you.
5.11 We are entitled to use subcontractors in the performance of the Services. We may outsource certain functions associated with our Services to a service centre located outside of Australia or to other third-party providers.
5.12 Some of your data may be stored using cloud technology managed by a third party, including outside Australia.
5.13 We do not undertake to store or retain your files (whether paper or electronic) for any particular period of time but will do so for at least the minimum number of years required by applicable laws and professional regulations. Files may be destroyed at any time after the expiry of such period, without notice, except those files you ask be delivered to you. We are entitled to charge you costs for storing your files.
5.14 Automic Group uses the data that we collect through our interactions with you to provide, improve and develop our products and services, including new products and services that we do not yet offer. We use the data that we collect to advertise and market our products and services. We may also use the data to perform data analytics and develop insights, both for our own use (including for profitable use) and for the use of parties that we have commercial relationships with. We may, with what we consider to be appropriate confidentiality restrictions share your data with third parties that we have commercial relationships with. You agree that nothing in this Agreement restricts or limits the right and ability of Automic Group (or any of the individual entities within Automic Group) to use the data we collect in any manner, including, without limitation:
(a) to advertise or market services or products to you or to your Holders;
(b) to deal directly with you or your Holders as required by any products or services either you or your holders have acquired or requested from or entered into with us;
(c) to enhance our market share or our profitability, without seeking further consent from you;
(d) outside Australia, provided that the use of any data outside Australia is de-identified.
5.15 You acknowledge that third parties may use the products or services developed by Automic Group, and in doing so may access or benefit from the data collected and/or enhanced by us, including from outside Australia.
5.16 You hereby grant to Automic (and all and any of its group entities) a non-exclusive, royalty free right to use any data as outlined in this clause 5, including outside Australia.
5.17 All intellectual property rights developed in any products or services or through the use of data analytics or insights generated by enhanced data belong fully to Automic (or its relevant group entities).
6. COPYRIGHT AND INTELLECTUAL PROPERTY
6.1 We retain all copyright and other intellectual property rights in all material developed, designed and created by us. You may only use and copy material created by us for you, or which we have developed independently of our work for you, in accordance with our advice or specific licence terms and in all cases only while we are engaged on an ongoing basis. All material must be kept confidential by you unless we agree otherwise.
6.2 Under no circumstances shall the use of any software or platform provided by us confer any intellectual property rights in you. You must not transfer or allow any third party to use or copy software provided by us to you. You undertake not to reverse engineer, decompile or disassemble any software to which we provide you access.
6.3 Any software that is made available to download or access via the internet as part of or in connection with the provision of our Services is the copyrighted work of Automic and/or its subsidiaries or suppliers. It is made available pursuant to licence and solely for use by end users who have an agreement for provision of Services from Automic Group. Any reproduction or redistribution of the software, by any means, is prohibited.
6.4 To the maximum extent permitted by law, Automic Group disclaims all warranties and conditions with regard to the merchantability or fitness for purpose of any software provided in connection with the Services.
6.5 We will enter into a specific technology licence with you in relation to any software, platform or other intellectual property that we make available for your use from time to time. The terms of such technology licence will prevail over this Agreement to the extent of any inconsistency.
7. OUR COMPLIANCE WITH CERTAIN LAWS AND REGULATIONS
7.1 We may require you to provide identifying documents and information concerning yourself and individuals and/or entities associated with you in order to comply with anti-money laundering laws and regulations, and to keep those documents and information up to date. We may be unable to carry out your instructions if we are unable to verify your identity or, in some instances, the identities of your directors, shareholders and beneficial owners.
7.2 We may be required by law or regulation to report to a governmental or regulatory authority our knowledge and/or suspicion that certain criminal offences have been committed, regardless of whether such an offence has been committed by a client of ours or by a third party. We may not be able to discuss such reports with you because of restrictions imposed by those laws and regulations, and we may have to cease acting for you in those circumstances. You agree that we are not responsible for any adverse consequences you may suffer as a result of our compliance with such laws and regulations.
8. LIMITATION OF LIABILITY
To the maximum extent permitted by law, the parties agree that neither party will be liable to the other party for any indirect, special or consequential loss or damage with respect to the subject matter of this Agreement, regardless of whether such damages or losses could have been foreseen or prevented by either party.
9. FORCE MAJEURE
Neither you, nor we, will be responsible for failure to perform our respective obligations pursuant to this Agreement (save for your responsibility to pay our invoices in full and on time) if the failures are due to causes outside, respectively, your or our control.
If the validity or enforceability of any of the terms of this Agreement is in any way limited by the laws and professional regulations applicable to us, those laws and professional regulations will prevail over such terms, but they will be valid and enforceable to the fullest extent permitted by such laws and professional regulations, and such limitation shall not affect the validity or enforceability of any other term.
11. TERM AND TERMINATION
11.1 This Agreement commences on the day we commence providing any Services to you and will continue thereafter for a minimum period of 36 months (Minimum Term). The Minimum Term shall thereafter automatically renew for a further 12 month period (the Extended Term) unless terminated by either party giving written notice of termination at least three months before the expiry of the current Minimum Term or Extended Term, as the case may be.
11.2 Automic may, terminate this Agreement on written notice of at least thirty (30) days, where it, at its sole discretion determines that the scope of Services (including any applicable Service Level Agreement) required by you differs or exceeds those agreed to be provided and/or represented to be required by you and/or you are in a material breach of a term of this Agreement.
11.3 If this Agreement is terminated for any reason, you agree to pay in full our invoices representing fees, costs, disbursements and other charges up to the date of termination. If this Agreement is terminated other than in accordance with clause 11.1 or 11.2 then you must pay us an amount equal to the fees payable for the remaining part of the Minimum Term or Extended Term (as applicable), as though the Agreement has not been terminated.
11.4 You agree that we may charge you reasonable fees for assisting with the termination of any Registry Services and transitioning any relevant data to another service provider. You agree that, to the extent required by applicable law, or if we are otherwise providing Services or products to any one or more of your holders, that we may (but are not obliged to) keep and retain a copy of any data that we require to continue providing such services or products on an uninterrupted basis.
11.5 Termination of this Agreement will not affect any provision of this Agreement which is expressly or by implication intended to come into force or continue on or after its termination.
12.1 You agree that you must not, without our prior written consent, for the term of this Agreement and for 12 months following its termination:
(a) directly or indirectly offer to employ or engage; or
(b) solicit, canvass or entice away, or attempt to solicit, canvas or entice away, any of our officers, employees or contractors to terminate their agreements or contracts with us.
12.2 If you do employ or engage such person without our express written consent, you agree to pay us the equivalent of six (6) months remuneration or fees of the relevant person as at the time of employment or engagement as an agreed placement or recruitment fee.
12.3 You acknowledge that any breach of clause 12.1 would cause us irreparable harm and significant damage and that we have the right to seek and obtain immediate injunctive relief in relation to any such breach.
12.4 You acknowledge that the obligations in this clause 12 are fair and reasonable and that we are relying upon this acknowledge in entering into this Agreement with you.
You agree that we may, from time to time, amend, vary or change these terms and this Agreement, including any charges, rates or fees we charge. You agree that we will provide you with 14 days written notice of any such amendment, change or variation. Following such notice, your continued use of any one or more of our Services or products will be deemed your consent to such amendment, change or variation.
14.1 Any notice, consent or other communication under this Agreement must be in writing from the person giving it, addressed to the person to whom it is to be given in accordance with the following:
(a) if to Automic, to the following contact and email address:
Level 5, 126 Phillip Street
Sydney NSW 2000
(b) if to you, to the person you authorise us in writing to issue such notices from time to time.
14.2 Any notice given pursuant to this Agreement:
(a) must be in legible writing and in English;
(b) must be delivered to the recipient in person, by courier, by prepaid ordinary post or by email.
14.3 A notice is regarded as being given by the sender and received by the recipient:
(a) if by delivery in person, when delivered to the recipient;
(b) if by post, three Business Days from and including the date of postage;
(c) if by email, on sending (unless the sender’s computer reports that the message has not been delivered).
14.4 If a notice is received on a day which is not a Business Day or after 5.00 pm on a Business Day, that notice is regarded as received at 9.00 am on the following Business Day.
15.1 Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction will be ineffective in that jurisdiction to the extent of the prohibition or unenforceability. This will not invalidate the remaining provisions of this Agreement nor affect the validity or enforceability of the provision in any other jurisdiction.
15.2 Waiver of a breach or of any right of election arising from a breach of this document must be in writing and signed by the party granting the waiver.
15.3 A breach or any right of election arising from a breach of this document is not waived by any failure to or delay in the exercise, or partial exercise, of that right of election or any other right.
15.4 This Agreement is governed by the laws of New South Wales. The parties submit to the non-exclusive jurisdiction of the Courts in New South Wales
17. ONLINE ACCEPTANCE
By using the Registry Services, you warrant that the person accepting the proposal is duly authorised to do so.