Business Terms and Limiting Conditions
Work performed by AHS Advisory is subject to formal engagement by the client’s signing of the confirmation of appointment in a proposal letter.
AHS Advisory reports are subject to Limiting Conditions for distribution and use. Please refer to the following business terms and conditions, which shall form part of our proposal and must be agreed to under our Engagement terms.
Business Terms and Limiting Conditions
All work undertaken by AHS Advisory will be made subject to certain assumptions and limiting conditions as described in these paragraphs, a copy of which will be appended to our report.
If, in the sole opinion of AHS Advisory, it becomes necessary to add additional assumptions and limiting conditions in order to properly characterise and represent our conclusions, these additional assumptions and limiting conditions will also become a part of our final report.
Scope of Work
- If problems are encountered that were unforeseeable at the commencement of any engagement or if the work is less than or expands materially beyond that indicated in this letter, we would discuss a revised fee arrangement that reflects any such change.
- If, at any stage of the assignment, we formed the opinion that there was an inadequate volume of market demand to support the proposed project, or that it would not be financially viable, we would suspend work and consult with you. In the event of an assignment being terminated under these circumstances, or if a decision is made by you to discontinue the engagement, our charges would be limited to the expenses incurred, plus the time spent to date, billed at our normal daily rates.
- In the event that after completing the fieldwork phase of this assignment it becomes necessary to alter the parameters of the study, such as the property description, financial, management or ownership structure, or any other factor which could change our projections, AHS Advisory will be entitled to charge an additional fee based on our current per diem rates and the time required to incorporate the necessary changes into our analysis and report. In addition, the estimate of timing will be extended by an amount equal to the added work.
- Notwithstanding the fee payment schedule set forth, if, at any time while performing this assignment, it becomes necessary to suspend work for a period of 30 days or more, then AHS Advisory will be entitled to invoice you for the portion of the assignment completed up to the suspension (less any deposit paid) at its current per diem rates.
- If payment for professional fees is not received within fourteen (14) days of the invoicing date, AHS Advisory reserves the right to suspend all work until payment is made and apply a service charge of 1.5 percent per month or fraction thereof to the unpaid sum.
Reports and Advice
- You acknowledge that you will not rely on or use any draft reports, conclusions or advice, whether oral or written. You may only rely on our final written report, subject to any qualifications contained in that report.
- Any advice given or report issued by us is provided solely for your use and benefit and only in connection with the purpose in respect of which the services are provided.
- Unless required by law, or detailed in our Engagement, you must not provide our report to any third party or refer to us or the services without our prior written consent, which we may at our discretion grant, withhold or grant subject to conditions.
- In no event, regardless of whether consent has been provided, will AHS Advisory assume any responsibility to any third party to which any advice or report is disclosed or otherwise made available.
- No copy, extract or quote from our report may be made available to any other party without our prior written consent as to the form and content of the disclosure.
- Intellectual property rights in all pre existing materials and methodologies utilised in the Engagement or incorporated into a report or any other material provided to you remains vested in AHS Advisory.
Legal and Regulatory Requirements
- You confirm, undertake and warrant that you have all necessary powers and have obtained all necessary authorisations, consents and approvals to validly and lawfully enter into the Engagement.
Information and Assistance
- You acknowledge that the success of the services AHS Advisory will provide is dependent on your timely co-operation. You undertake, without limitation, to:
- provide the materials and information we reasonably require from time to time to undertake the services;
- make senior executives available for consultation with us on request; and
- make decisions promptly, to facilitate the performance of the services.
- Estimates of time for completion of the services are given on the assumption that we receive this co-operation from you and commitment from the employees in your organisation. If you do not provide, or delay in providing that co-operation, you agree to pay us any additional consulting fees and expenses that may result.
- You must use reasonable skill, care and attention to ensure that all information we may reasonably require is provided to us on a timely basis and is accurate and complete.
- You must also notify us if you subsequently learn that the information provided is incorrect or inaccurate or otherwise should not be relied upon.
- You acknowledge that any reports issued or conclusions reached by us will be based upon information provided by and on your behalf and we will not be verifying its accuracy.
- Accordingly, we assume no responsibility and make no representation with respect to the accuracy or completeness of any information or material provided by you or on your behalf.
- To the extent that any such information is inaccurate or incomplete, you acknowledge you are aware that this could have a material effect upon the conclusions in our report.
Fees and Additional Services
- Our fees (which unless otherwise specified are in Australian dollars) will be charged on the basis set out in our proposal or confirmation of engagement.
- Either party may request changes to the Engagement. We will work with you to consider and, if appropriate, to vary any aspect of the Engagement, subject to payment of our reasonable additional fees and a reasonable additional period of time to provide any additional services.
- Any variation to the Engagement, including any variation to fees, services or time for performance of the Engagement, must be detailed in a separate letter and will form part of the Engagement and be subject to these terms and conditions.
- Time for payment of our fees and expenses is of the essence. If you disagree with, or question, any amount due to us under an invoice submitted by us, you must communicate such disagreement or objection to us, in writing, within 14 days of the invoice date. You will be deemed to have waived any claim not made within that period.
- You will be solely responsible for the work and fees of any other party engaged by you to participate in the Engagement regardless of whether such party was introduced to you by us, except as otherwise agreed in writing.
- AHS Advisory will not be responsible for providing or reviewing specialist advice or services including legal, regulatory, accounting or taxation matters, due diligence or any other investigative services.
- You must not, and we must not, disclose confidential information about the other without the other’s written consent. Confidential information includes, but is not limited to, any proposal or tender document, information, trade secrets, methodologies or documents that are not in the public domain, stored in any medium.
- Exceptions to this confidentiality clause are disclosures to legal advisers, disclosures required by law and disclosures necessary for the proper performance of the Engagement.
- Either party may terminate the Engagement prior to completion if the other party fails to remedy a material breach of the terms and conditions after receiving notice from the other specifying the breach and requiring it to be remedied within a reasonable time.
- If the engagement is terminated before the completion of the Engagement, you must pay AHS Advisory for work we have completed or expenses incurred by us in accordance with the fees detailed in the proposal or Engagement letter.
- AHS Advisory will use reasonable skill and care in the provision of services to you.
- To the extent permitted by law, AHS Advisory excludes all warranties, conditions or terms, other than those expressly set out in these terms and conditions including, but not limited to, all warranties, conditions or terms implied in fact or by law.
- Nothing in this Clause has the effect of excluding, restricting or modifying any non-excludable statutory condition, warranty, guarantee, right, remedy or other benefit that is preserved for you by the Trade Practices Act 1974 (Cth) or any other legislative provision.
- AHS Advisory will never be responsible for indirect or consequential loss.
- Where AHS Advisory is not entitled to exclude a warranty, condition or term implied in fact or by law, and to the extent permitted by law, our liability for breach of any such warranty, condition or term is limited to:
- in the case of the Engagement, either the re-supply of the services or payment of the reasonable cost of having the services resupplied; or
- in the case of documentary deliverables or materials, either the resupply of the deliverables or materials or reasonable payment of the cost of having the deliverables or materials resupplied.
- In all instances, other than as set out in previous Clauses, our total aggregate liability to you for any loss or damage, caused by, resulting from, or in relation to the provision of our services, including whether arising from breach of contract, negligence, or any other cause, and whether or not you have advised us of the possibility of such loss or damage, is limited (to the extent permitted by law) to an amount equal to the fees paid by you to us for the Engagement.
Indemnity against Third Party Liability
- You agree to indemnify, and keep indemnified, the officers and employees of AHS Advisory from and against any loss, expense, damage or liabilities (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 our services or any use by you of any deliverable item under this Engagement and you must reimburse us for all costs and expenses (including legal fees on a full indemnify basis) incurred by us in connection with any such action or claim.
- You agree that if you make any claim against us for loss as a result of a breach of our Engagement, and that loss is contributed to by your own actions, then liability for your loss will be apportioned as is appropriate having regard to the respective responsibility for the loss, and the amount you may recover from us will be reduced by the extent of your contribution to that loss.
- You accept and acknowledge that, subject to any statement made in these terms and conditions, we have not made any warranties or guarantees of any nature in respect of the Engagement or satisfactory conclusion of the Engagement or with respect to the economic, financial or other results, which you may experience as a result of the provision of our services.
Governing law and Disputes
- This Engagement shall be governed by and interpreted in accordance with the laws of New South Wales and the Courts of that state will have exclusive jurisdiction in relation to any claim, dispute or difference concerning the Engagement and any matter arising from it.
- If any dispute arises between us, we will first 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.
- If the dispute is not resolved through negotiation or mediation, both of us agree that the courts of New South Wales will have exclusive jurisdiction in connection with the resolution of the dispute.
- Neither of us will be liable to the other for any delay or failure to fulfil obligations caused by circumstances outside our reasonable control.
- If such reasons continue to prevent performance of either party’s duties or obligations for a period of more than 30 days, we will consult each other for the purpose of agreeing what action should be taken.
- Unless expressly declared in the proposal or Engagement letter, AHS Advisory will not be prevented or restricted by anything in the Engagement from providing any services for other clients.
- We will take steps to ensure that confidential information communicated to us during the course of this engagement will be maintained confidentially and separate from directors and staff assigned to engagements in which there is a manifest competing interest of another client.
- We do not accept any liability in respect of any error or omission arising from or in connection with the electronic communication of information to you. Please let us know if you do not want us to communicate electronically with you.
GST Clause for Consultancy
- Notwithstanding anything else contained in this agreement:
- unless otherwise stated, all Consideration for any Supply under this Agreement excludes any allowance for GST payable for that Supply;
- if GST applies to any Supply, the Consideration for that Supply may be increased by the applicable GST; and
- if the Agreement requires the reimbursement of, or indemnification for, any outgoing or liability, the Consideration to be increased under sub-clause (b) is the amount of the outgoing or liability net of any Input Tax Credit received or receivable by the supplier.
- If Consideration is calculated by reference to revenue, or comprises a reimbursement or indemnity calculated by reference to revenue, the Consideration to be increased is the amount calculated by reference to revenue net of any GST.
- When the supplier first provides the recipient with an invoice or receives any payment of Consideration, or, when an Adjustment Event occurs, the supplier or the Recipient as the case requires, must contemporaneously provide a Tax Invoice and any other documentation required under the GST Law.
- Adjustment Event, Consideration, GST, GST Law, Input Tax Credit, Recipient, Supply and Tax Invoice have the meanings attributed to those terms in A New Tax System (Goods and Services Tax) Act 1999 (Cth) as amended from time to time.
Last updated: June 2012