First Advisers Pty Ltd (ABN 46 137 743 787) trading as FIRST Advisers (“FIRST”) has submitted a proposal for the provision of services (“Proposal”) to the Client.

FIRST provides communications advice and the information and advice provided pursuant to these services does not constitute, and should not be relied upon for, legal or financial product advice. If you or the Client requires legal or financial product advice you should consult your legal advisers or a licensed or authorised financial product adviser.

The Client has accepted FIRST’s Proposal. FIRST and the Client agree that the terms of the Proposal shall be incorporated into and form part of the Terms and Conditions except to the extent that an additional term or conditions may be added to the Engagement Letter. If there are inconsistencies between these Terms and Conditions and the Proposal, the Terms and Conditions will prevail.

Services

FIRST will:

  • perform the services described in the Proposal with care and diligence and in a professional manner to the best of its knowledge and expertise;
  • comply with all relevant laws;
  • promptly and fully inform the Client about all matters affecting, or likely to affect, the Client, which comes to FIRST's attention.

Fees

The Client agrees to pay FIRST the fees and amounts set out in the Proposal plus any applicable GST within 14 days of the date of FIRST's invoice or as set out in the Proposal. FIRST will invoice monthly for fees incurred to that date.

If payment is not made in circumstances where neither the fee nor any part of it is in dispute the following will apply:

  • the Fee is immediately due and owing from the date of invoice;
  • FIRST may, at its option, charge interest of 15% per annum, calculated daily, on all amounts unpaid from the due date until payment is made;
  • all performance of any Services will be suspended until the full amount payable, including GST and interest (if applicable), is paid in full;
  • FIRST may terminate any other proposals or impose additional conditions of payment before performing any Services in relation to those other proposals;
  • legal proceedings may be instituted for the recovery of the unpaid amount and the costs of such recovery.

All payments to be made under this Agreement shall be made in cleared funds, without any deduction or set-off and free and clear of and without deduction for or on account of any taxes, levies, imports, duties, charges, fees and withholdings of any nature now or hereafter imposed by any governmental, fiscal or other authority save as required by law. If a Party to this Agreement is compelled to make any such deduction, it will pay to the receiving Party such additional amounts as are necessary to ensure receipt by the receiving Party of the full amount which that party would have received but for the deduction.

Should the Services be delayed or postponed by the Client, the Client will give FIRST 24 hours’ notice and a portion of fees equal to the work scheduled to be undertaken in the following 24 hours may be charged.

Restrictions

Both parties agree not to seek directly or indirectly to employ permanently or temporarily each other's staff or contractors, during the period of this letter, any extension thereof, or for 12 months after termination or expiry.

Any such approach will result in payment of fair and reasonable damages for loss of revenue and/or expertise which will not be less than 6 months of the salary to be earned by the staff member or contractor.

Expenses and Disbursements

The Client shall reimburse FIRST for all reasonable expenses incurred by it as set out in the Proposal and such expenses, which are reasonably and properly incurred by FIRST for the purposes of providing the Services.

Incidentals such as couriers, faxes, data recording discs and mail fulfilment are not included in this Proposal and shall be billed separately. The storage of the recording discs is the responsibility of the Client and shall (if required) also be charged separately. As the campaign develops, tactics may change and may require review of implementation and costs.

All changes shall be discussed with the Client before any implementation.

Return or Destruction of Confidential Information

The Parties agree that if requested by the other the recipient must, and must procure that its Related Parties and Representatives, immediately:

  • at the direction of the other, return to the other, or destroy all documents containing any Confidential Information, and any copies of those documents; and
  • remove and destroy from electronic storage all Confidential Information, including such information combined with any other information
  • confirm in writing that the return or destruction of Confidential Information has been undertaken.

Restrictions

Both parties agree not to seek directly or indirectly to employ permanently or temporarily each other's staff or contractors, during the period of this letter, any extension thereof, or for 12 months after termination or expiry.

Any such approach will result in payment of fair and reasonable damages for loss of revenue and/or expertise which will not be less than 6 months of the salary to be earned by the staff member or contractor.

The Client Responsibilities

The Client is wholly and solely responsible, and FIRST will have no responsibility, obligation or liability, for:

  • the compliance of the Client, its directors, officers, employees and representatives, with relevant rules, regulations and legislation and in particular all its securities exchange disclosure obligations, and all relevant state, federal and international laws, principles of good governance and best practice;
  • ensuring that all information, materials or instructions supplied to FIRST are complete, correct, accurate and not false or misleading; and
  • the content of all approved press releases, public disclosures, advertisements and communications.

Warranties and Liabilities

  • FIRST warrants to the Client that the services will be provided using reasonable care and skill. There are no other express or implied warranties. For any breach of the warranty, the Client’s exclusive remedy will be the re-performance of the deficient services or a recovery of the fees paid to FIRST for the deficient services, such remedy to be determined by FIRST in its absolute discretion.
  • FIRST will rely on the quality, fullness and accuracy of information provided to it by the Client and its advisers and the Client hereby warrants to FIRST that, to the best of its knowledge, such information is complete and accurate.
  • FIRST will rely on all approvals given by the directors, officers, employees, representatives and advisers of the Client and the Client hereby warrants to FIRST that those directors, officers, employees, representatives or advisers will be wholly authorised to give such approvals.
  • Where, in the provision of its services, FIRST supplies or provides and goods or services any goods supplied by a third party, FIRST does not give any warranty, guarantee or other term as to their quality, fitness for purpose or otherwise, but will, where possible, assign to the Client’s the benefit of any warranty, guarantee or indemnity given by that supplier.
  • FIRST will have no liability to the Client or to any other third party for any loss, damage, costs, expenses or other claims for compensation arising: 
    1. from any of information, materials or instructions supplied by the Client which are incomplete, incorrect, inaccurate, illegible, out of sequence or in the wrong form, or arising from their late arrival or non-arrival, or any other fault of the Client;
    2. by reason of any representation or any implied warranty, condition or other term, or any duty in tort or at common law, or under the express terms of this letter, for any loss of profit or any indirect, special or consequential loss, damage, costs, expenses or other claims (whether caused by the negligence of FIRST, its officers, employees or agents or otherwise) which arise out of or in connection with the provision of the services or their use by the Client
    3. by reason of any delay in performing, or any failure to perform, any of FIRST's obligations in relation to the services, if the delay or failure was due to any cause beyond FIRST's reasonable control.
  • The entire liability of FIRST under or in connection with this letter will not exceed the amount of FIRST's charges for the provision of the services.

Termination

Either Party may terminate the Services immediately, by giving written notice of termination to the other Party. Unless otherwise agreed in writing, should the Services be cancelled prematurely by the Client, the Client shall be obligated to pay the quoted fees.

Indemnity

The Client indemnifies FIRST against any and all liabilities, which FIRST or its directors or employees incur or may incur arising out of or in connection with the Client's act, default or omission or breach of the Proposal or these Terms and Conditions.

To the extent permitted by law and except as expressly provided to the contrary in this Proposal, FIRST shall not be under any liability to the Client in respect of any loss or damage (including, without limitation, consequential loss or damage) howsoever caused, which may be suffered or incurred or which may arise directly or indirectly in respect of the supply of Services pursuant to this Proposal or the act, failure or omission of FIRST.

Privacy

The Client warrants to FIRST that in performing the Services FIRST will be observing all applicable privacy laws in respect of all Personal Information; and the Client will procure that its employees and agents;

  • observe all applicable privacy laws in respect of all Personal Information; and
  • only use Personal Information for the purposes of complying with their respective obligations pursuant to these Terms and Conditions.

The Client warrants that if, for the purposes of providing the Services, FIRST is required to make telemarketing calls as defined in the Do Not Call Register Act 2006 (NSW) Act, the Services comply with this Act and the Client and FIRST acting on the Company's behalf, have the necessary implied (or express) consent to contact all those who are to be contacted for the purposes of the Services.

Additional Services

In addition to the Services, the Client may from time to time request that FIRST provide it with certain additional services. The Client agrees that FIRST's provision of such additional services shall be governed by a separate proposal relating to such additional services or as agreed in writing via email. Any additional services will be subject to these same Terms and Conditions.

Miscellaneous

  • The Client acknowledges and accepts that in accepting the Proposal it has not relied on upon any warranty, representation or statement, whether oral or written, made or published by FIRST or any person on behalf of FIRST and has relied entirely upon the Client's own enquiries
  • Any waiver of any clause of these terms and conditions is only valid if made in writing and signed by each Party.
  • The governing law of these terms and conditions is the law of New South Wales, Australia and the Parties agree to submit to the jurisdiction of the Courts of New South Wales in connection with any dispute relating to these Terms & Conditions and the Proposal.

Definitions

Confidential Information” shall include all data, commercial, financial and technical information, the following share register details – shareholder information & contact details including but not limited to HIN/SRN numbers, personal Information, products, computer programs, process, dealings, manuals, reports, scripts, Q&A booklets, and other information disclosed or submitted orally or in writing, or by any other media.

Fee” means the fee specified in the Proposal including any reasonable out of pocket expenses incurred by FIRST for the purpose of providing the Services, and GST. FIRST reserves the right to add a 10% handling fee to out of pocket expenses. FIRST has the right to pay or receive referral fees to third parties for the provision of services under this agreement

Personal Information” means any and all information about a person that is ‘personal information’ as defined by the Privacy Act 1988 (Commonwealth) and the National Privacy Principles contained in schedule 3 to the Act which is collected or held by a party in connection with the provision of Services including shareholder information & contact details including but not limited to HIN/SRN numbers.