Standard terms of service
These are our standard terms of service (our Terms).
Unless otherwise agreed, our services are provided in accordance with these standard terms. We may update our standard terms from time to time.
Our engagement
These Terms form part of our client engagement agreement (including costs agreement) with you for your matter. They apply to our engagement with you and must be read with our engagement letter for your matter, together with any other document referred to in your engagement letter.
You can accept these Terms by:
signing our engagement letter;
by telling us that you accept these Terms; or
by instructing us in relation to your matter after you have received our engagement letter or these Terms.
If we will be acting for more than one client on your matter and any of you accept these Terms, the acceptance will be for and on behalf of all of you. If you engage us on behalf of or together with, or to provide services to, a third party (including any of your group members) this agreement binds both of you, separately and together.
Please refer to section 12 for the meaning of certain words and phrases used in these Terms.
Your matter
What services will we provide?
Our engagement letter sets out the scope of services that we will provide. You may request a change in that scope at any time, but we are only required to provide additional services if we have agreed to in writing.
We provide legal services. We do not provide financial, commercial, technical or insurance advice, even if we comment on such matters when providing our legal services. Our scope of services will only cover tax matters or foreign law if our engagement letter expressly states so.
We provide our services to the client(s) named in our engagement letter. To the extent permitted by law, we have no duty of care or liability to any other person, including any of your group members. You must not disclose our advice to any other person, and no other person may rely on our advice, unless we agree in writing.
We are not required to update any advice for subsequent changes in law, or advise on the expiry of any registrations. We do not monitor or assist with future dates of obligation or compliance arising out of any instrument or law, unless instructed to do so.
How will we provide our services?
Our engagement letter sets out our professional staff who will work on your matter. We may also involve other professional staff who are not named in the letter.
We will not engage another service provider for your matter unless you have instructed us to. If we suggest or engage another service provider, we do so without liability to you (including in relation to their ability, standing or services).
We are not responsible for any material, information or advice received from any other person which is incorporated into our work, including its accuracy.
We will nominate the staff who will work on your matter, based on your needs and the resources available to us.
What do you need to do?
You must give us clear, complete and timely instructions, with all necessary documents and information. Please tell us immediately if you believe we have misunderstood you, or made any incorrect assumptions.
In providing our services we rely on the information that you give us. We are not required to obtain or take into account any other information, even if it is in the public domain.
You must take reasonable care to protect your own interests, and to assess the commercial soundness of your matter and the integrity and financial condition of any other parties involved.
Our fees and expenses
How do we calculate our fees?
There are a variety of ways that we may calculate our fees. Unless our engagement letter states otherwise, we will determine our fees (including any fees payable pursuant to these Terms) based on the time spent on your matter and our hourly rates at the relevant time.
If our engagement letter specifies a fixed fee or a fee cap, it will apply only to the agreed scope of services and will be subject to any specified assumptions. We will charge for any work outside that scope or those assumptions based on our hourly rates at the relevant time.
Where appropriate, we may adjust or increase any fee that is based on hourly rates to ensure that our fees reflect the reasonable value of our services having regard to all relevant factors (which may include the complexity, urgency and/or importance of your matter).
We record time in six-minute units, rounded up to the nearest unit.
What hourly rates will apply to your matter?
Our Schedule of Rates and Expenses sets out the standard hourly rates of our professional staff applicable to your matter. The specific hourly rates of the staff who work on your matter will depend on their experience, specialisation and location, and the fee arrangements that apply to your matter. If our engagement letter does not specify the hourly rate for any staff who work on your matter, it will be the standard rate that applies when the work is done.
We review our hourly rates and expenses from time to time, including at the end of each financial year, and may change them.
Any revised hourly rates or expenses will apply to your matter from the date we change them.
What expenses will we charge or pass on to you?
We will charge our expenses as set out in the Schedule of Rates and Expenses. We will charge you at cost for any other third party expenses.
If we engage another service provider for your matter, it will be as agent on your behalf and we will charge you what they charge us. If we ask you to engage them directly, you must pay their costs directly.
If we use a legal technology platform, our charges may include data hosting and external user charges.
Estimates of legal costs
Our engagement letter or its attachments may include an estimate of our fees, expenses or total legal costs for your matter. Any such estimate will be an estimate only, not a fixed quote. The final amount will depend on the circumstances and may differ from the estimate. So please view the estimate as our best effort to anticipate what the relevant legal costs may be.
The estimate will be based on our present understanding of your matter and our scope of services, and any assumptions set out in our engagement letter or its attachments.
The major variables that will affect the final legal costs will depend on the nature of your matter but are usually:
any further instructions you give us, including any change in our scope of services;
how long we act for you or it takes for your matter to complete;
the number and complexity of arrangements or documents we are required to draft, review, negotiate or advise on, and extent of any research or investigation required;
the approach and co-operation of other parties, and amount of negotiation required;
any unexpected issues, delays or other factors beyond our control that arise;
any actual circumstances being different from our assumptions set out in the engagement letter or its attachments; and
if your matter involves litigation, whether or not we need to retain counsel or expert witnesses, and whether the matter can be settled at an early stage or it is necessary to proceed to trial or appeal.
You may ask us for an updated estimate of our legal costs or a progress report on our costs incurred at any time.
GST
All fees and expenses will be increased by any applicable goods and services tax (GST) or similar tax. If services treated as GST-free are later found to have been taxable, you must pay us the amount of the GST as well as any associated penalties or interest.
Billing and payment
Invoices
Our invoices will be issued to, and payable by, our client(s) as named in our engagement letter.
We may issue an invoice at any time. We usually invoice monthly. Each invoice is a
separate and final bill of costs for the legal services it refers to. You consent to us signing and sending you documents relating to this agreement or your matter (including bills) electronically.
Invoices must be paid in full within 14 days of the invoice date, even if you have not received payment or reimbursement that you expected from a third party.
Invoices must be paid in the currency specified, and to our nominated bank account in immediately available, freely transferable, cleared funds. If the invoice is paid in a different currency, you must pay any shortfall arising from converting the payment to the correct currency.
Our invoices are issued on the basis that we will receive the amount billed. If you are obliged to withhold tax for any reason in respect of any amount billed, or any bank or other charges are payable, you must gross up the payment so that we receive the amount stated in our invoice.
We may charge interest on an unpaid invoice after 30 days from the date we gave you the invoice. The interest rate is the ‘Cash Rate Target’ percentage (or maximum percentage) specified by the Reserve Bank of Australia as at the date the invoice was issued, plus two percentage points. Interest accrues daily until the invoice is paid.
If a third party (including any of your group members) agrees to pay any of our invoices, you must inform them that all documents and information they receive in relation to your matter are confidential, must be kept confidential and are provided on the basis that any privilege is not waived.
Payment in advance and money held on your behalf
We may ask you for advance payment to be held in trust for future fees and expenses. We may decide not to start or continue work until we receive the payment, and we may terminate our engagement if it is not paid by the due date.
We pay money held on your behalf into our trust account or an interest-bearing account at your request (excluding cheques we hold for delivery to a third party). You authorise us to withdraw money held in those accounts and use it to pay: (a) expenses; (b) invoiced amounts unpaid after 14 days from the date we gave you the invoice; and (c) any accrued interest.
We may also withdraw money held in those accounts and use it to pay our fees and expenses, and any accrued interest, if permitted by law.
Costs orders
If your matter involves litigation and a court orders a person to pay your costs, the costs payable under the order will not necessarily cover the costs you must pay us under this agreement (and may be substantially less). Even if a court makes such an order, you must still pay our costs under this agreement. If a court orders you to pay another person’s costs, you must pay them as well as our costs under this agreement.
Confidentiality
Your information
We will keep confidential all confidential information we receive during the course of your matter (subject to any disclosure permitted by these Terms), and the Angus & Carr personnel who work on your matter will:
treat all such confidential information as given only to them; and
not disclose your confidential information to anyone not working on your matter.
We may disclose information about you or your matter:
in confidence internally, and/or to our associated entities, advisers, insurers and any third parties we engage to provide services for your matter or our business (such as barristers and authentication or data storage services);
in our tender and marketing material (in a de-identified way, excluding confidential information); and
as required or permitted by law or a court.
Other clients’ information
To protect the confidential information of our other clients, we (including the Angus & Carr personnel who work on your matter) will not disclose to you:
any confidential information of other clients or third parties which is known to us; and
any information that we receive in the course of acting for other clients, or contained in conflict searches conducted for other clients even if it would be to your benefit or advantage.
Personal information
In the course of acting for you, we may collect personal information about you and your representatives and employees. We will only use or disclose this information for the purposes of carrying out and administering your matter or as permitted by, and in accordance with, our Privacy Policy.
You confirm that your representatives and employees consent to us using and disclosing their personal information on these terms.
Conflicts of interest
You acknowledge that we will not be able to conduct full and proper internal conflict checks if you do not provide us with all relevant information or if you ask us to limit or restrict the way we perform those checks.
If we become aware of an actual or potential conflict that is relevant to your matter we will advise you promptly and (subject to duties of confidentiality we owe other clients) will discuss the issue with you. If the law or our professional obligations require us to decline your instructions or cease acting for you, we must do so.
You consent to us acting for other clients even though we hold your confidential information. You will not seek to prevent us acting for any other clients only because we hold your confidential information or they may have commercial interests adverse to yours.
Documents, files and technology
Intellectual property
We retain copyright and own all intellectual property rights in all documents and other material we create during the course of or in connection with your matter. You may use these documents or material only in connection with that matter, unless we agree otherwise. You warrant that our use of any documents or other material you provide to us for your matter will not infringe any other person’s intellectual property rights.
Your files
We may store your files electronically in our ordinary IT systems. These may include cloud servers or the servers of third parties. You agree that we do not need to take any additional steps to secure your files beyond our ordinary security steps.
We will give you a copy of your documents on request. If you ask us or we choose to deliver your original documents, we may retain a
copy for our records. We may charge our fees and expenses for doing any of these things (including for determining the documents you are entitled to). You authorise us to destroy your files seven years after your matter has concluded.
Technology and other risks
Storing and transmitting information and documents electronically, and executing documents using DocuSign or similar software services, involves risk. It cannot be guaranteed to be secure or error-free.
To the extent permitted by law:
we are not liable if any of your data or any other data that we receive is or becomes lost, destroyed, corrupted, inaccessible or damaged; and
to the extent that we have (or any claim is made that we have) any liability to you or any of your group members for, or directly or indirectly arising from or connected with, any:
malicious, criminal or unauthorised act (including unauthorised access to or disclosure of data) or series of related acts, or the threat or hoax thereof, involving access to, processing of, use of or operation of any computer system;
partial or total unavailability or failure of any computer system;
receipt or transmission of malware, malicious code or similar;
failure or interruption of service provided by any:
internet service provider, telecommunications provider or cloud provider; or
utility provider, where such failure or interruption of service impacts a computer system; or
actual or alleged breach of any data protection or privacy legislation or regulations which govern the use, confidentiality, integrity, security and protection of personal data, or any guidance or codes of practice relating to personal data issued by any regulator or authority from time to time,
our aggregate liability for all such claims and liabilities (Cyber Claims) is limited to the lesser of either AUD1 million or the total fees paid to Angus & Carr on your matter in the 12 month period immediately before the liability was incurred.
For the avoidance of doubt, the limit on liability for Cyber Claims under section 7(b) is a sub-limit of the limit on liability for all claims under section 8(a), and any liability for a Cyber Claim will count towards both the limit on liability under section 7(b) and the limit on liability under section 8(a).
Limitation of liability
General limitations
To the extent permitted by law, and without limiting any other limitation or exclusion of liability under these Terms:
our aggregate liability for all claims under or directly or indirectly arising from or connected with this agreement, your matter or any services provided is limited to the lesser of either AUD50 million or ten times the total fees paid to Angus & Carr on the matter;
if we are liable to pay you damages and if you or any other person (including your other advisers) have contributed to the loss suffered, the damages payable by us will not exceed the amount that would have been payable by us had:
the damages payable by us been reduced by the amount that they would have been if proportionate liability legislation applied to your claim against us in relation to that loss and every person who was a concurrent wrongdoer in relation to some or all of that loss was joined to the proceedings in which you made the claim;
no exclusion, limitation or restriction of liability applied between you and any such concurrent wrongdoer; and
all persons who were liable for, but not concurrent wrongdoers in relation to, all or part of that loss, been joined to such proceedings and ordered to pay (and paid) the full amount of their contribution; and
we are not liable for any incidental, indirect or consequential loss, damage or liability, or any loss of profit, goodwill, business opportunity, anticipated savings or benefits.
You agree that recourse for any liability or claim referred to in section 7(b) or 8(a) is limited to, and may only be enforced against, the assets of Angus & Carr and not the personal assets of any Angus & Carr personnel. You irrevocably release us from, and agree and undertake not to (and to ensure that your group members do not) make, any claim to the extent that it would result in our aggregate liability exceeding the amount specified in section 7(b) or 8(a) (as applicable) or us otherwise being liable contrary to these Terms.
In sections 7(a), 7(b) and 8, we, us and our also includes Angus & Carr personnel (or any of them as applicable). Angus & Carr holds the benefit of those sections for itself and on trust for Angus & Carr personnel, who may also rely on and enforce those sections.
Force majeure
To the extent permitted by law, we are not liable for any loss or damage you suffer as a result of any event or reason beyond our reasonable control (including any act, omission, or delay by us caused by such event or reason).
Termination
Right to terminate
Either of us may terminate our engagement by giving reasonable written notice to the other.
We may also stop work on, or terminate our engagement for, your matter by giving you written notice if:
you do not give us adequate instructions or information;
we decide that our professional responsibilities require us to withdraw from your matter (for example to avoid an actual or potential conflict of interest or where you instruct us to act in breach of our professional responsibilities);
you do not pay one of our invoices in full within 14 days of the date we gave it to you;
you do not pay a requested advance payment on account of future legal costs; or
for any other just cause.
Effect of termination
If our engagement is terminated (by either of us), you must promptly pay all our fees and expenses incurred up to the date of termination, and for any work we must do in relation to your matter after termination. We can retain your money, property and documents, even after our engagement has been terminated, until all of our fees and expenses incurred have been paid, subject to any applicable professional conduct rules.
Sections 2, 6, 7, 8, 9, 10, 11 and 12 survive termination of our engagement or this agreement, together with any other section that by its nature is intended to do so.
Investigations or inquiries
If we are requested or obliged to provide documents or information to, attend, or otherwise assist or participate in any inquiry, commission, investigation or proceeding involving or connected with you, your matter or any of your group members, you must pay our fees and expenses in connection with doing so (including our being represented by counsel, determining what we must provide or resisting disclosure), even if it is after our engagement has ended.
Our relationship
Governing law
The law of Victoria applies to this agreement, our legal costs in relation to your matter, and any non-contractual obligations arising from or connected with this agreement, your matter or any services provided.
Your rights
If you are not a commercial or government client as defined in the Legal Profession Uniform Law (Victoria), you have the right to:
ask for an explanation of this agreement (or any part of it);
negotiate a costs agreement with us;
negotiate the billing method (for example by reference to timing or task);
receive a bill from us for work done;
request an itemised bill within 30 days after you receive a lump sum bill (or a bill that is only partially itemised) from us;
seek the assistance of the Victorian Legal Services Board if there is a dispute about legal costs;
within 12 months after the bill was given, apply for an assessment of the whole or any part of our legal costs; and
be notified of any significant change to the basis on which our legal costs will be calculated or any significant change to the estimate of total legal costs.
For more information about your rights, please refer to the website of the Law Institute of Victoria or the Victorian Legal Services Board and Commissioner.
Feedback or complaints
Please provide any feedback about the conduct of your matter or your legal costs to our Managing Principal.
Definitions and interpretation
In these Terms and our engagement letter (unless otherwise defined or required by context):
this agreement means our client engagement agreement (including costs agreement) with you for your matter, which includes these Terms;
computer system means any computer, hardware, software, communications system, electronic device (including smart phone, laptop, tablet or wearable device), server, cloud computing service or microcontroller including any similar system, any configuration of the aforementioned and any associated input, output, data storage device, networking equipment or back up facility;
Angus & Carr, we, us and our means Lachlan Angus Carr trading as Angus & Carr;
Angus & Carr personnel means the the Managing Principal and any employees and consultants of Angus & Carr or any of its associated entities;
data means information, facts, concepts, code or data of any kind (including any document, file, opinion, advice, database, idea or invention) that is, or is recorded or transmitted in a form to be, used, accessed, processed, transmitted or stored by a computer system;
engagement letter means the letter or email that we have sent you, describing the services we will provide and the terms on which we will provide them;
group members means your associated entities and your respective officers, employees and shareholders;
liable, liability, loss, damage(s) or claim:
(i) means a claim or any liability of any kind, whether: (A) actual, contingent or prospective; (B) at law, in equity, under statute or otherwise (and whether for or arising from negligence, breach of contract, statute or an equitable or fiduciary duty, or otherwise); or (C) made by or involving liability to you or any other person; and
(ii) includes any claim or liability for costs or expenses incurred or payable in connection with a claim (including legal costs).
other clients includes former, current, prospective and future clients;
professional staff means any legal practitioner, together with, paralegals and certain other specialist staff;
service provider means other adviser, firm or provider of services, and includes a barrister or expert;
you and your means each client named in our engagement letter; and
your files means any documents, correspondence, information or files relating to your matter that are created, held, received or sent by us (whether in hard copy or electronic form).