Business terms

Thees are our business terms (Business Terms) and may include other documents provided by Stone Leaf Capital Pty Ltd ABN 40 135 542 979 (Stone Leaf Capital) confirming your instructions and appointment to act for you. Those documents, together with any additional correspondence relating to a particular matter that we provide to you at the time of receiving instructions, set out the basis upon which services are provided to you for the work described in any Scope of Works and/or Cost Estimate and for any other work which you (or any company or organisation you control) may instruct us to perform until a new Client Agreement is entered into.

1.    Professional relationship

Our Key Obligation: We will perform the work with professional skill and diligence acting as your independent advisers. We will act solely in your interests in any matter on which you retain us unless you ask us also to act for other parties in that matter. We will not perform work for you if factors such as a conflict of interest prevent us from accepting your instructions.

Our reporting obligations: We will keep you informed of the progress of the work. You may also request, at any time, a report of the progress of the matter and statements of fees and costs since your last tax invoice.  We reserve the right to charge for the provision of progress reports but no charge will be imposed for provision of costs statements.

Multi Party or joint work: Where you instruct us jointly with one or more other parties, you and each other party will be jointly and severally liable to pay our tax invoices.

Your obligations: You agree:

  • to provide us with timely, accurate and proper instructions, and all documents and other records relevant to the service we are providing you; and

  • that you are solely responsible for satisfying yourself as to the commercial viability of any transaction, the bona fides of the other parties to any transaction, the financial matters relevant to and the commercial soundness of the transactions, and have the sole responsibility for all these matters and will act reasonably and take reasonable care to do so and otherwise to protect your own interests.

Facts and Assumptions: In providing our services we may need to base our advice or conclusions on facts or assumptions. If that occurs, we will tell you what facts and assumptions we are relying on. You agree to check that all those facts and assumptions are correct.

Formula(e) and equation(s): In undertaking the work, you acknowledge that we will not perform any validation, checking or verification as to the suitability, accuracy or correctness of, any formula or equation that has been provided to us for incorporation into documents or other use in undertaking the work. Formula or equation includes any formula, equation, ratio, technical computation, algorithm, binary coding, computer programme, or financial schedule, whether expressed in words, symbols or other form.

Performance of obligations and time periods: Any obligation imposed on you by statute, regulation, contract, as law, in equity or otherwise to perform an act or deliver a notice, to:

  • affirm the exercise of a right, renewal, extension, variation or termination; or

  • make a claim or commence an action,

arising howsoever including but not limited to the occurrence of any date, event or circumstance, whether past, present or future, remains your obligation, save and except where our scope of works agreed in writing with you expressly requires us to perform that obligation. Unless otherwise agreed in writing with you, we will not be responsible for notifying you of the imminent expiry of the ability to perform that obligation or any limitation or time period.

2.    Fees and other charges

Fees: We calculate our fees by reference to the time spent by our staff on your matter, multiplied by the relevant hourly rate set out in the Schedule of Hourly Rates. We cost time in 6 minute units. The minimum amount of time spent on a task will be one unit.

Included in fees: We will charge fees for all professional time for analysts, clerks including but not limited to drafting, reviewing and completing documents, correspondence, advices, conferences, reading materials, travelling (where related to the work), telephone calls, appearances, research and providing representation letters where requested by you.

We reserve the right to charge for support staff outside normal trading hours at the rate specified in the Schedule of Hourly Rates.

Other Charges: We calculate other charges in accordance with the Schedule of Hourly Rates or at the rate charged by the provider or otherwise at cost. Where we pay taxes, fees or charges on your behalf, you will reimburse us for those payments. We will account in our tax invoices for all disbursements and outlays we incur on your behalf. We will provide you, on request, with tax invoices or other proof of disbursements and outlays we make on your behalf.

Goods and Services Tax (GST): Unless otherwise stated, our fees, other charges and disbursements are stated on a GST exclusive basis. We will treat you as the recipient of the supplies that we make. We will determine the GST payable (if any) on our supply of service to you based on your legal status and the nature of the work performed. Where our supply of service to you gives rise to a GST liability for us, the total invoice amount for those services will exclude an amount on account of that GST unless otherwise stated.

Mergers and acquisitions and other significant matters: For significant mergers and acquisitions matters and other significant transactions, we reserve the right to renegotiate our rates in respect of personnel at and above partner level.

3.    Fee indemnities and third parties

Indemnities for fees: Although you may expect to be reimbursed by some other person for our tax invoices, if we do not have any recourse against that other person, you will be responsible for payment, even if payment to you is delayed or not received.

4.    Non-Stone Leaf Capital service providers

External service providers: You authorise us as your agent to engage external service providers needed to perform the work (for example accountants, data management specialist, forensic experts, surveys or town planners). You will be responsible for payment of fees and charges of such service providers and must repay us any amount that we pay them.

Service provider liability: External service providers may contract with you on their own terms and conditions of business. Many service providers, including advocates, undertake work only on the basis that their liability for damages is limited.

Our liability in relation to service providers: To the extent permitted by law:

  • we accept liability for any error on our part in our instructions to those service providers, but take no responsibility for their work or how they carry out their instructions; and

  • in suggesting or selecting any service provider, we shall rely on information we are given as to the qualifications of the person but take no responsibility for that selection and give no warranty as to the ability of the service provider to appropriately carry out the task or as to the quality of that service provider’s work.

Service provider GST: For the purposes of the Australian GST law, you (and not Stone Leaf Capital) will make an acquisition of the service provider’s services. You will therefore be entitled to an input tax credit for GST included in amounts charged by the service provider, to the extent that you satisfy the requirements of the GST law. We will supply you with details of the amounts invoiced by the service provider and will retain the original tax invoices on your behalf. Whether or not the service provider should add GST on the amounts they charge for supplies they make to you is a matter between you and the service provider. Where a service provider includes an amount on account of GST that we pay on your behalf, you must repay us the whole amount paid by us, including any GST.

Additional services: Separately to external service providers whom we engage on your behalf, we may directly engage third party suppliers to perform various outsourced or subcontracted functions for us, including to deliver ongoing innovations, improvements and efficiencies in the way we perform the work. These may include functions in connection with the management, production, handling, storage, hosting and retrieval of any information, documents or records which we receive, prepare or generation in connection with our engagement, including our work product.

Our use of such external service providers will in no way diminish our obligations to you under these Business Terms in relation to how we treat confidential information received from you in the course of us performing the work.

5.    Tax invoice arrangements

Tax invoice arrangements: You are entitled to receive a tax invoice from us which is signed or nominates a responsible principal for the tax invoice. Each tax invoice rendered to you will be a final tax invoice. We may issue a tax invoice each week and tax invoices are payable upon receipt. Tax invoices are payable within 7 days. You are taken to have received our tax invoice:

  • if it is given personally – on the day it is given to you or to your agent;

  • if it is sent by post, within 2 days of posting;

  • if it is sent electronically – upon transmission.

Electronic tax invoice: We may deliver our tax invoices to you electronically. Your rights to receive an original tax invoice of costs will be satisfied by our preparing the tax invoice, having that tax invoice imaged to create digital file and sending that file to you by email or other electronic communication. If you ask us to do so, we will also post you a hard copy original.

Tax invoice Payments: You must pay tax invoices in the currency of issue in full following receipt. You must make payment without deduction or set-off including but not limited to withholding tax or any other deduction for processing payment. If we receive a refund in respect of any withholding tax or any other tax for which you have effectively reimbursed us, we will pay to you the amount of that refund less any costs we incur in obtaining it. We may charge interest on any amount outstanding for the period from 3 days after receipt of the tax invoice until payment in full, calculated in accordance with an interest rate equal to the Reserve Bank Cash Rate Target as at the tax invoice date plus 2 percentage points.

External service provider’s payments: Where we receive funds to meet an obligation incurred on your behalf to an external service provider we will pay the third party as soon as practicable after receipt.

6.    Liens and suspension of work

Liens:

  • we have a lien on all documents, funds and records in any form whatsoever in our possession until payment in full of all our tax invoices for all matters in respect of which you have retained us; and

  • we are entitled to retain for our records, copies of all documents which we give you, whether owned by us or not and to deal with them in accordance with clause 15 below of these Business Terms.

Suspension of work: If payment of part or all of a tax invoice is outstanding for 45 days, we will cease acting on your matters until payment is received in full on all our tax invoices for all matters in respect of which you have retained us. We will notify you prior to ceasing work on any of your matters. You agree to indemnify our office for any losses you or third parties may suffer as a result of us ceasing to act for you.

7.    Work Product

Use of work product: Advice that we give you and documents which we prepare in any matter or transaction in which we are acting for you are specifically given or prepared for you in relation to that matter or transaction only, and must not, without our prior written consent, be relied on by:

  • you in relation to any other matter or transaction; or

  • any other person or entity.

Ownership and copyright: We have and retain ownership of, and copyright in, all advices and other documents prepare in the course of our engagement other than documents prepared by external service providers or specialist advocates.

You may use such advices and documents prepared in relation to the work for which they were prepared but must not without our prior written consent:

  • reproduce or use them in relation to any other transaction or matter; or

  • provide them to any other person or entity.

Changes to our work product: We are not responsible to you or any other party for any loss incurred in connection with changes made to a document that we provide to you unless we have specifically approved those changes.

8.    Apportionment of liability

If you claim compensation, damages or contribution from us for loss or damage arising from acts or defaults (including negligence) on our part and some or all of that loss or damage was due to or contributed to by:

  • your own acts or defaults or by the acts or defaults of other persons for whose actions or defaults you are responsible; or

  • the acts or defaults of one or more other persons, not being partners, employees or agents for whose conduct we are responsible,

then we will be liable only for that proportion of the loss or damage which our acts or defaults bear relative to the totality of the conduct of all persons causing or contributing to the loss or damage.

Where any law relating to proportionate liability applies to a claim against us, this clause does not seek to exclude the operation of that law but will continue to operate to the extent that its operation is consistent with that law.

9.    Ending our appointment

Termination by you: You may terminate our engagement by giving us written notice at any time. If you do so, you must pay our fees for work done and for other charges incurred up to the time of termination.

Termination by us: We may terminate our engagement:

  • by giving you reasonable notice, except where our engagement is for a set duration;

  • if any payment (including payment of a tax invoice or money in advance) due by you to us under this Costs Agreement is not paid on the due date;

  • if you do not provide timely, accurate and proper instructions;

  • if, by continuing to act for you, we would be required to act contrary to any legal, regulatory or professional conduct obligation or similar just cause; or

  • if there is any change in the financial or legal status of any associated third party.

Termination by us on any of those grounds does not prejudice or otherwise affect any lien created under clause 6 of these Business Terms.

10.  Email and other electronic communication

Emails and electronic communication: We will use email and other forms of digital or electronic communication with you and third parties for provision of information, advice, opinions and copies of documents unless you instruct us to the contrary and we can discuss and agree an alternative method of communication with you.

Risks with communications: Email and other digital or electronic communication may be interfered with, contain computer viruses or other defects, or may not be successfully replicated on other systems. To the extent permitted by law, we will not be liable for any copying, recording, reading or interference by others during, or after, a transmission, for any delay or non-delivery, or for any damage caused in connection with the transmission. You will contact us immediately if you have any doubts about the authenticity of any communications or material which appears to have been received from us.

11.  Confidentiality

Our obligations: We will keep confidential all confidential information received from you in the course of us performing the work, and we:

  • will treat confidential information you give as being given only to us, our partners, staff, employees, agents and contractors;

  • may disclose confidential information within the firm or to our agents and/or contractors in order to perform the work or functions in relation to the work (including as contemplated under clause 4); and

  • will not disclose to you any confidential information of third parties which may be known to them or any other Stone Leaf Capital personnel and may otherwise be information to which you are entitled.

If required, we will reinforce the confidentiality of information by adopting special procedures among the partner and staff.

Restricted information from us: You understand and accept that our obligation to you with respect to giving you information is restricted by these provisions. Only the partner and staff working for you will have an obligation to give advice only to you. We will treat other clients ‘instructions to the firm and their confidential information on the same basis.

Industry Information: You understand that we act for clients in similar industries and sectors to your own. Except for information confidential only to you, knowledge of industry or sector conditions, practices, participants or pricing form part of our knowledge and experience and is not confidential information for the purposes of this agreement.

Information use: We may transfer material to databases we control for learning and knowledge purposes. Before doing so, we will make reasonable efforts to ensure that confidential information is neither disclosed outside the firm nor otherwise used inconsistently with the obligations referred to above.

12.  Competitive bidding

If you instruct us in any matter where you are or may become one of a number of competitive bidders (or their financier) for an asset, a right or a contract, for example, a tender process, we reserve, and you consent to our having the right, to act or to continue to act, for any other competitive bidder (or their financier), provided our standard information barriers have been put in place. In such a situation, in addition to the matters mentioned in clause 15 of these Business Terms, each of the separated teams within our firm will pay attention solely to the interests of its client, without regard to the interests of any competitive client

13.  Compliance with Laws – Anti-Money Laundering and Counter-Terrorism Laws

The Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth), Regulations and Rules (AML laws) place obligations on ‘reporting entities’ to, amongst other things, identify their customers and report certain transactions and suspicious matters to AUSTRAC. Reporting entities are defined in the AML laws to include those entities who provide ‘designated services’ which may extend to our services we provide to you or financial services we access on your behalf, for example, receiving your money into our trust account and/or dealing with that money on your behalf with financial services institutions such as banks.

Notwithstanding your instructions, we will nevertheless seek to comply with all laws applicable to our retainer and the performance of our services for you, including, without limitation, any applicable AML laws.

As a condition of our ongoing retainer, you must therefore provide, or cause others to provide to us, any information we require for those purposes in a timely manner and you authorize us to provide information as required by law to any relevant third party (such as regulators or financial institutions for the purposes of identifying the source of funds (whether for you or for others) and the purpose of any transaction).

14.  Privacy

Personal information: The Privacy Act 1988 (Cth) and other privacy legislation applies when we collect, hold, use and disclose information or an opinion about an identified individual, or an individual who is reasonably identifiable, whether the information or opinion is true or not and whether the information or opinion is recorded in a material form or not (personal information).

Collection of personal information: In the course of your instructions and while acting for you we may collect your personal information or if you are an organization, such as a corporation or Government Department or agency, we may collect personal information about individuals who are employees, directors or principals of you or your associates. We may collect this personal information from the individual directly or if the individual is an employee, director or principal of an organization, from the organization or from other third parties including government agencies, law enforcement bodies, publicly available records, public registries, court or tribunal records, ratings agencies, search agencies, regulatory and licensing bodies, your service providers and other third parties to whom you refer us for these purposes. We ask you to assist us to make these individuals aware that our acting for you may involve collection of personal information about them and refer them to this statement or otherwise make them aware of the matters set out in this statement.

In the course of some matters we may collect personal information that is sensitive information under the Privacy Act, such as health information about an individual. You agree that where you provide us with your sensitive information, you consent to us collecting that information. If you are an organization and you provide us with, or authorize us to collect, sensitive information about an employee, director or principal of you or your associates, you warrant that you have obtained the consent of the relevant individual to our collection of that information. You otherwise consent, or if you are an organization, warrant that the employees, directors and principals of you and your associates consent, to us collecting sensitive information that is reasonably necessary for your functions or activities.

Purposes of collection: We collect personal information to use for all purposes in relation to the services that you have requested, provide you with information about services we offer through direct marketing, comply with our professional and regulatory obligations, and otherwise carry out our functions as professional service providers and related activities.

If we do not collect personal information as set out above, we may not be able to provide you with the services that you have requested or otherwise carry out your instructions.

Disclosure of personal information: For the purposes set out above, we may disclose personal information to third parties including:

  • our service providers, contractors and suppliers (such as barristers, title and court searchers, surveyors, forensic witnesses, accountants, mediators and consultants, valuers, IT consultants, mailing, carriers, printing, photocopying, advertising and market research);

  • our agents;

  • individuals, organisations and agencies with whom we are required to deal in the course of acting for you and carrying out your instructions (including parties to your matter and their legal representatives);

  • court officers and staff; and

  • government agencies (such as agencies responsible for processing transactions).

We are generally not likely to disclose personal information to overseas recipients. If in the course of acting for you it becomes necessary or desirable to disclose personal information to overseas recipients, we will generally canvass this with you before we do so.

Direct marketing: Contact details and other personal information (such as information about areas of interest) we hold about individuals may also be used by us (and disclosed to our service providers and contractors) to keep those individuals informed about developments in relevant areas or other services or seminars we offer (including by email and other electronic communications). However, if at any time an individual tells us that they do not wish their personal information to be used for this purpose, we will act in accordance with their request. Details of how an individual can do this are set out in our Privacy Policy. If you are an organization, we ask that you assist us to make individuals who are employees, directors or principals of you or your associates aware of these matters.

Our Privacy Policy: Our Privacy Policy is available on request and here and contains information about how an individual may access personal information that we hold about them, seek its correction, complain about a breach of the Australian Privacy Principles and how we will deal with such a complaint.

Privacy Officer: Please contact our Privacy Officer at the details below if you would like to obtain a copy of our Privacy Policy or have a question regarding the management of personal information.

Email:      info@stoneleafcapital.com.au

Post:       Attention ‘Privacy Officer’; or

Tel:          (07) 3367 8681

15.  Official inquiries

Obligation to produce documents: It is possible that because we have acted for you in a matter or because we have received documents or information in the course of, or in connection with, our work, we may be required in the future to participate in an inquiry, commission or proceeding arising out of, or in connection with, that work. This may lead to our producing documents, seeking to claim or defend your privilege to resist inspection or disclosure of certain documents or information, or giving evidence at an inquiry.

Steps to be taken: We will seek your instructions if these circumstances arise, but you agree to reimburse us for out of pocket expenses we reasonably incur and for the time we spend in that regard at our then current hourly rates.

16.  Document storage

Storage standard: Where we agree, or are required, to retain documents on your behalf, you agree that we may entrust them to the possession of a professional document management service which is a member of the Records Management Association of Australia, complies with Australian standard for records management, or is accredited under ISO 9000/9002.

Storage method: You agree that documents or records we retain in connection with our engagement or the services we provide to you or on your behalf (regardless of the date on which that retention arose):

  • may be stored in digital or electronic formats, and where the information, documents or records are so stores, the original hardcopy of the information, documents or records may be destroyed by us unless you expressly request otherwise in writing or the destruction is otherwise prohibited by law;

  • may be destroyed 7 years after the date on which the matter is complete; and

  • may be copied before delivery to you.

Stored documents that we retrieve for your benefit will incur retrieval costs and you agree to indemnify us for those costs.

17.  Jurisdiction and governing law

Jurisdiction: Our Costs Agreement and all aspects of our retainer and the performance of our services for you are governed by and you agree to be bound by the laws for the state or territory from which we issue this Costs Agreement. You irrevocably submit to the exclusive jurisdiction of the courts of that jurisdiction.

18.  Replacement of agreement

Each financial year we will review these Business Terms and the Scope of Works and Cost Estimate and Schedule of Hourly Rates. If we propose to change either the Business Terms or the Scope of Works and Cost Estimate and Schedule of Hourly Rates, we will notify you in writing and ask you to enter into a new costs agreement. You agree that we may send a new costs agreement to you electronically to an electronic address notified by you or used by you in communicating with us.

19.  Severability

Any provision of this Costs Agreement which is illegal or unenforceable is only ineffective to the extent of that illegality or unenforceability, without invalidating the remaining provisions.

20.  Inconsistency

To the extent of any inconsistency or conflict between:

  • any matter related letters;

  • the Scope of Works and Cost Estimate;

  • the Schedule of Hourly Rates; and

  • these Business Terms,

then that inconsistency or conflict must be resolved by giving priority to the earlier named document over any later document, failing which, in the order described above.