Terms of Engagement

1. Terms of Engagement
1.1 Application

These terms apply to services provided by any subsidiary of HPX Group Pty Ltd ACN 621 014 515 (HPX Group) that operates using the Source brand. In these terms Group means HPX Group and its subsidiaries.

These Terms of Engagement are to be read in conjunction with your Engagement Scope, and together with these Terms of Engagement, are the Engagement Agreement. If there is any inconsistency between the Engagement Scope and these Terms of Engagement these Terms of Engagement prevail.

We may update these Terms of Engagement from time to time. Please refer to this page for our current Terms of Engagement.

Capitalised terms have the meaning given in the Engagement Scope.

1.2 Scope of the Services

We will provide the Services in an honest, ethical, professional and timely manner.

In providing the Services we are not responsible for, or required to:

  • advise on the commercial viability or commercial soundness of transactions or other business decisions;
  • investigate the bona fides of other parties to a transaction; or
  • do anything which we reasonably believe is unethical, or a breach any legal or regulatory law or requirement.

You are responsible for the accuracy and completeness of the details and information you provide to us. You must disclose all material, or relevant information (including any changes), in a timely manner, to enable us to provide the Services.

When you instruct us, we will exercise reasonable care to comply with your instructions, provided they are clear, adequate and reasonable. We may refuse to comply with them if they are unlawful, unethical, unreasonable or could result in reputational damage for us.

2. Fees and invoicing
2.1 Fees

Unless otherwise agreed, our fees are determined on a fixed fee basis agreed with you.

We may incur expenses to third parties on your behalf, like filing fees, postal or courier services, travel costs. We will let you know in advance if travel and accommodation costs or other substantial professional charges of more than $500 will be incurred.

If we engage external counsel on your behalf, we will inform you of the associated legal costs before they are incurred.

Unless otherwise stated, all rates, charges and disbursements in the Engagement Scope are GST exclusive.

Unless otherwise agreed in an Engagement Scope, we will review our pricing and fees from time to time, to determine whether they are still appropriate having regard to the value of the Services being provided. We may also increase our fees annually to take into account inflation.

2.2 Accounts and billing

We will send you a Tax Invoice in accordance with the timeframes specified in the Engagement Scope. You consent to receiving Tax Invoices electronically to your email address.

If you do not pay a Tax Invoice within 30 days of receipt of the Tax Invoice we may charge you interest on the unpaid amount at the rate not exceeding the Cash Rate Target, as fixed by the Reserve Bank of Australia, plus 2%, at the date the Tax Invoice is issued.

If you do not pay our Tax Invoices within the stated period, we may stop work until we are paid.

3. Intellectual Property
3.1 Logo and Trademarks

We may use your name, logo and trademarks in marketing material promoting the Group and its services (including in press releases, on our website and LinkedIn) unless you ask us not to. If we consider an engagement to be sensitive, we will consult with you prior to releasing any press release or other publication in respect of the engagement.

3.2 Intellectual Property

You retain any intellectual property rights in your documents and materials. We retain any intellectual property rights in our documents and materials.

We own all intellectual property rights in any documents or materials we create in the course of performing the Services (Created Work). We grant you a non-exclusive, royalty-free licence to use any intellectual property in any Created Work for the purposes of receiving the benefit of the Services. You may not permit any third party to copy, adapt or use the Created Work without our consent.

4. Termination

Either party may terminate the Engagement Agreement:

  • unless otherwise set out in an Engagement Scope, on one month’s written notice; or
  • immediately if the other party breaches the Engagement Agreement, and fails to rectify such breach within a reasonable time, after being requested to do so.

We may terminate the Engagement Agreement immediately if you ask us to act unethically or in a manner that would breach our professional duty, you provide instructions which are deliberately false or misleading, you do not accept our advice, suffer an insolvency event or you otherwise do anything which may damage our reputation.

If an Engagement Agreement is terminated, you will be required to pay our fees and charges for work done, and for expenses and disbursements incurred, up to the date of termination. If you have paid any fees in advance, we are not required to refund any amounts.

On termination, while there is money owing to us for our charges and expenses, we are entitled to retain possession of your papers and documents, unless and until security is provided for our costs. If we have agreed to a fixed term engagement, you agree to pay us for the entire period of the fixed fee, even where you terminate our engagement before the end of the fixed term.

5. Privacy, Confidentiality and Documents
5.1 Personal information

Personal information about you, your officers or representatives, or other people, provided by you and other sources, is collected and stored by us in accordance with our Privacy Policy. Disclosure of such information may be compelled by law. Where you provide us with the personal information of an individual, you must obtain that individual’s consent to our collection and disclosure of that personal information as set out here, and provide them with a link to our Privacy Policy. A copy of our privacy policy can be found on the HPX Group website.

From time to time, we and Group entities may email you about our products, services and activities which we believe will be of interest to you. If you do not wish to receive these emails, please use the unsubscribe button in the email, or if there isn’t one, reply to the e-mail requesting to opt out.

5.2 Sharing information

You authorise us to share your information (including information about you or your engagement) with other entities in the Group and entities affiliated with the Group (including Hamilton Locke (NZ) Limited), and their employees and contractors and store your information in Group databases. This stored and accessed information will not extend to your client files.

You also authorise us and these entities to disclose information about you and your engagement to others, if required (or desirable) for the provision of the Services. For example, to our service providers, relevant regulators, or to other parties involved in your engagement (for example, non-executive directors).

5.3 Sending Material Electronically

Documents sent and received electronically may be copied, recorded, read or interfered with by third parties while in transit and we cannot ensure their security. You release us from any claim you may have as a result of any unauthorised copying, recording, reading or interference with a document transmitted electronically.

5.4 Confidentiality

Subject to “Privacy Protection” above, we will keep your records, and other information or documents you give to us, confidential. We will not disclose your records or information to another person unless you give us prior written consent, we are required to perform the Services, or we are required to disclose them to comply with the law or the requirements of a regulatory body. We are permitted to disclose your records or information to our professional advisors, financiers or potential investors, provided they agree to keep them confidential.

5.5 Retention of Your Documents

On termination or completion of an engagement, we will store copies of your documents and records electronically. If requested, we will provide a copy of the documents and records that we have created for you in the course of providing the Services. Any original signed documents will be returned to you. You must make sure that you collect from us any original documents you need to keep for tax or other purposes.

We may destroy the file from seven years after the date of our final invoice. You are required to maintain your own records and documents for any applicable period required by law or required to comply with any regulatory or licence conditions or obligations.

5.6 Corporate Records

If the terms of our engagement require us to only access, edit or retain copies of documents within your IT infrastructure, and therefore we do not have copies of any documents or records that we have created or worked on in the course of providing the Services (Corporate Records):

  • you must use your best endeavours to maintain the Corporate Records in an appropriate and secure manner; and
  • if requested by us, you must provide access to, and we may access the Corporate Records in connection with:
    • the provision of the Services;
    • in connection with any actual or potential claim, demand, hearing, examination, dispute or legal process arising out of, or in any way connected to, the Services.
6. Limitation of liability

Our liability:

  • for any failure by us to comply with any consumer guarantee in respect of the supply of our services that are not of a kind ordinarily acquired for personal, domestic or household use or consumption is limited, at our sole discretion, to the resupply of the services again, or the payment of the cost of having the services supplied again; and
  • for any loss or damage suffered as a result of our engagement which otherwise arises, whether in tort (including negligence), contract or otherwise, must not exceed an amount equal to the total fees received by us from you in the previous 12 months (exclusive of GST and disbursements).

Notwithstanding anything else in the Engagement Agreement, neither party is liable (whether in tort, including negligence, contract or otherwise) to the other party for any loss of profit or any indirect or consequential loss.

This provision does not exclude, restrict or modify the application of any provision of the Australian Consumer Law (whether applied as a law of the Commonwealth or any State or Territory of Australia).

7. General
7.1 Privilege

You understand that our documents, reports and records are not protected by legal professional privilege unless we provide our Services as a legal service to you through Source Services Pty Ltd and the requirements for legal professional privilege are met.

7.2 Applicable Law

The Engagement Agreement will be governed by and construed in accordance with the laws of New South Wales.

7.3 Unenforceable provisions

If all or any part of the Engagement Agreement is or becomes illegal, invalid or unenforceable in any respect, then the remainder will remain valid and enforceable.

7.4 Acceptance

You will be deemed to have accepted the terms of the Engagement Agreement if you:

  • provide instructions to us or another Group entity after receipt of the Engagement Scope; or
  • communicate acceptance to any Group employee, verbally or by email.
8. Other things we have to tell you
8.1 Australian Legal advice

This section applies if the Services include legal advice provided by Source Services Pty Ltd ACN 150 668 554.

Source Services Pty Ltd is an incorporated legal practice under the Legal Profession Uniform Law (NSW). Its liability is limited to $10 million in New South Wales, Queensland and Victoria and $9.5 million in Western Australia by a scheme approved under Professional Standards Legislation.

This section sets out your rights as required by the Legal Profession Uniform Law 2014 (NSW) applied as a law of New South Wales by the Legal Profession Uniform Law Application Act 2014 (NSW) and the Legal Profession Uniform Law 2014 (Vic) in Schedule 1 of the Legal Profession Uniform Law Application Act 2014 (Vic), and the Legal Profession Uniform Law (WA) applied as law of Western Australia by the Legal Profession Uniform Law Application Act 2022 (WA) (together, the Uniform Law) and the Legal Profession Act 2007 (Qld) (Queensland Law) (as applicable).

If the law of Queensland applies to this matter, you have the right to notify us in writing that you require a corresponding law of another State or Territory to apply to this matter. You may also accept or reject a written offer from us that a corresponding law of another State or Territory will apply to this matter.

In accordance with section 174(2) of the Uniform Law and section 308 of the Queensland Law, you have the right to (provided you are not a commercial or government client within the meaning of the Uniform Law or a sophisticated client within the meaning of the Queensland Law):

  • request a written report about the progress of your matter and the costs incurred to date or since our last bill (if any);
  • negotiate a costs agreement with us. You may want to seek independent legal advice before agreeing to the legal costs we propose to charge in this matter;
  • negotiate the billing method with us (for example by reference to timing or task);
  • receive a bill of costs from us;
  • request an itemised bill of costs within 30 days after you receive a lump sum bill, or a bill that is only partially itemised, from us;
  • be notified of any significant change to the basis on which legal costs will be calculated or any significant change to the estimate of total legal costs;
  • apply for a costs assessment or apply to have our costs agreement set aside; and
  • seek the assistance of the designated local regulatory authority in the event of a dispute about legal costs.
8.2 Intellectual property matters

This section applies if the Services include work on intellectual property matters which is provided by Source IP Pty Ltd ACN 123 822 140.

A registered Trade Marks Attorney with appropriate competency, including by drawing on technical expertise will undertake the proposed work and is bound by Code of Conduct for Patent and Trade Marks Attorneys 2013.

8.3 Compliance matters

This section applies if the Services include compliance services provided by Source Compliance Pty Ltd ACN 655 750 842.

In this section Licence means an Australian Financial Services Licence, Credit Licence or other financial services licence held by you.

You must at your own expense, effect and maintain a professional indemnity policy with terms required by any Licence you hold. Your insurance must include coverage for us providing the Services, to the extent that the Services must be covered by insurance under your Licence.

You acknowledge that:

  • we act as an independent compliance consultant, and when we are acting as an independent compliance auditor with the approval of a regulator, we have a duty to remain professionally independent;
  • our engagement is not and is not to be taken or represented as, an endorsement by us of your business or activities, or of any of your products or services; and
  • our review, audit recommendations and other advice is based on the information and documentation that you provide to us, and does not constitute legal advice.

We do not guarantee that any legislative or compliance breach has not occurred in the past or will not occur in the future. We do not accept responsibility for the identification of any non-compliance or breach of financial services laws, breach of your Licence conditions, or for any deficiencies in your operational, compliance or risk management systems, policies and procedures, in any areas we have not reviewed, or where we have been provided with incomplete or inaccurate information.

Our review and audit services may involve a random review of your general operating and compliance standards. Our audit reports are not comprehensive and we do not guarantee that the review and audit services will discover or identify (and they are not designed to discover or identify) all or any issues that may result in a breach of a Licence or a claim by any regulator. We do not accept responsibility for the discovery of any matters, or any action to be taken in relation to such matters, which could give rise to claims or circumstances under any professional indemnity insurance policy or otherwise.

You indemnify us against all actions, claims, liability, damages and loss which we may suffer or incur as a result of, or arising in connection with, our appointment as an outsourced compliance service provider, including an act or omission committed by you, or your officers or employees.

8.4 Governance matters

This section applies if the Services include compliance services provided by Source Governance Pty Ltd ACN 627 818 277.

You indemnify us against all actions, claims, liability, damages and loss which we may suffer or incur as a result of, or arising in connection with, our appointment as an outsourced company secretary provider, including an act or omission committed by you, or your officers or employees.