This Agreement sets out the terms and conditions on which you will be provided services by the Automic Group (Services), which may include services from Automic Pty Ltd (Automic), Automic Legal Pty Ltd (Automic Legal) and Automic Finance Pty Ltd (Automic Finance).
This Agreement will apply to all engagements between you and any company in the Automic Group. From time to time an Automic Group company may enter into an additional contract, including standard terms, with you in which case this Agreement will be in addition to that additional contract. In the event of any inconsistent terms, the terms of that additional contract prevail.
In this Agreement Registry Services means those services normally provided by a registry, including, without limitation, access to RegistryPRO. Cosec Services means those services described in the Services Schedule of our proposal, including without limitation, access to CoSecPRO. CFO Services means the provision of accounting services by Automic Finance. Legal Services means provision of legal services by Automic Legal. Depending on the services you obtain from us, one or more of our services may be bundled into your retainer. If you want more information about our various service offerings, please do not hesitate to ask us, or click here.
1.1 Automic Group will provide you with such Services as you request from us. These Services include, amongst others, Registry Services, Cosec Services, Legal Services and CFO Services. Automic Legal and Automic Finance are wholly owned subsidiaries of Automic. Within the Automic Group, Registry Services and Cosec Services are provided by Automic, Legal Services are provided by Automic Legal and CFO Services are provided by Automic Finance. By entering into this Agreement you are forming a contract with each of Automic and Automic Finance.
1.2 For avoidance of doubt, Legal Services shall only ever be provided by Automic Legal. Where there is an engagement involving provision of Legal Services beyond the services provided free as part of a bundled offer, Automic Legal may, if required enter into a separate costs agreement and disclosure with you, pursuant to the Legal Profession Uniform Law (NSW). Unless we 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 This Agreement is governed by the laws of New South Wales.
2.1 Our invoices are payable within 14 days of receipt.
2.2 All rates and fees are expressed exclusively of GST, which will be added to your invoice.
2.3 Where the fee for our Services is expressed to be an hourly rate then our charges may be structured in six-minute units. For example, the time charged for attendance of up to six minutes will be one unit and the time charged for an attendance between six and 12 minutes will be two units.
2.4 On your request, we may from time to time perform additional services that are not within the scope of our initial engagement. If this occurs, you agree to us charging our applicable consulting rates or professional services fees for carrying out these services.
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 Automic Group company for provision of Services. Disbursements will be added to your bill from us and, in some cases, may include a margin.
2.6 We also apply a monthly fee of 2% of gross billings to recover indirect out-of-pocket expenses.
2.7 If an invoice remains unpaid after 14 days:
(a) you agree that we may be entitled to charge interest, if allowable under the laws and professional regulations applicable to us. Unless otherwise agreed, such interest will be at the BBSW rate plus 2%; and
(b) on giving you written notice, we may cease work on all or any of your matter(s). You agree that we are not responsible for any loss resulting from or incurred by you as a result of such inactivity. If the matter is litigious, we may also remove ourselves from the court or tribunal record.
2.8 You agree that we may exercise a lien over your files and documents until all invoices due to us from you have been paid in full, subject to the laws and professional regulations applicable to us.
2.9 On or about 1 July each year we are entitled to increase our charge out rates and quoted fees. At a minimum, such increase will match any increase in the Consumer Price Index over the previous 12 months in the Average Weekly Ordinary Time Earnings, as published by the Australian Bureau of Statistics. If our fee increase matches CPI only, you agree that we may increase once per annum without further notice to 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, unless you and we have agreed otherwise, we may apply any part of the money held in trust in settlement 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.
4.1 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.
4.2 You agree that we may request you to nominate authorised representatives who are the only people entitled to give instructions to us on your behalf. Your authorised representatives 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).
5.2 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 A solicitor/client relationship exists between you and us only if, at the relevant point in time, we are working under instructions from you for the provision of Legal Services. 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 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 brand and logo 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.
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 We collect data from you and about you, through our interactions with you and via our products. We may also enrich data that we have about you by acquiring further data from third party providers.
5.15 We use the data that we collect 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 these Terms 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 (including shareholders or unitholders);
(b) to deal directly with you or your holders (including shareholders or unitholders) 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.
5.16 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.
5.17 You consent to us using your name and logo to advertise and market our products and services, including on our website and in any marketing materials, without seeking your further consent.
5.18 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.
5.19 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).
6.1 Where, in the provision of Cosec Services, we provide one of our team to serve as your statutory Company Secretary it is a requirement that you indemnify us from all loss or expenses, including defence costs, in relation to any claim made against us or our team member in connection with the Company Secretary role.
6.2 You agree to enter into a formal deed of indemnity and access with any relevant Automic team member who is serving as your Company Secretary.
6.3 You agree to obtain and maintain directors and officers insurance coverage approved by us with any Automic team member who is serving as your Company Secretary to be named as a beneficiary under the insurance, and to maintain run off cover for at least six years following cessation of office.
7.1 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.
7.2 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.
7.3 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.
7.4 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.
7.5 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 these Terms to the extent of any inconsistency.
8.1 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.
8.2 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.
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 these terms of engagement is in any way limited by the laws and professional regulations applicable to us, those laws and professional regulations will prevail over these terms of engagement, 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.
11.1 Entry into an Agreement with us which includes provision of any of Registry Services, CFO Services or Company Secretarial Services shall, on all occasions, constitute an agreement for provision of those Services for a minimum period of 12 months (Minimum Term). The Minimum Term shall thereafter automatically renew unless terminated by either party giving written notice of termination at least three months before the expiry of the current Minimum Term. The Minimum Term recognises that where we provide certain Services there will be seasonal ebb and flow, so that we provide the Services on expectation of a full 12-month term. Where applicable, the Minimum Term will commence on the earlier of the date that you first accept an offer to take our Services or on which we first invoice you for Services.
11.2 Other than as specified at clause 11.1, this Agreement may be terminated at any time by giving reasonable prior notice in writing, subject, in our case, to any applicable laws or regulations.
11.3 If our engagement is terminated for any reason, you agree to pay in full our invoices representing fees, costs, disbursements and other charges up to the time of the engagement’s termination. Where the agreement that is subject to a Minimum Term is terminated other than in accordance with clause 11.1 then you must pay us an amount equal to the fees payable during the remaining part of the Minimum Term.
11.4 If you are a client of, or use the Registry Services, you agree that we may charge you reasonable fees for assisting with the termination of 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 keep and retain a copy of any data that we require to continue providing such services or products on an uninterrupted basis.
You agree that we may, from time to time, amend, vary or change these Terms, including any fees we charge. You agree that we will provide you with 30 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.