OnDemand Subscription Agreement

This Agreement governs the delivery of subscription-based legal help-desk services by Artificer via the OnDemand Platform

Interpretation

Definitions

In this OnDemand Subscription Agreement, capitalised terms and phrases have their defined meaning as set out below, unless the context provides otherwise:

Agreement means the contractual agreement formed by executing an Order Form, including any documents incorporated by reference.
Business Day means a day which is not a Saturday, Sunday or public holiday in Sydney, New South Wales, Australia.
Commencement Date means the date specified as such on the Order Form, or if no date is specified then the date the last party to execute the Order Form does so.
Online Ticketing System means the digital help-desk/ticketing system nominated by Artificer from time to time for the purposes of logging service requests under the Agreement, currently available at ondemand.artificer.legal.
Order Form means the document by the same name incorporating this OnDemand Subscription Agreement by reference.
Ordinary Rates means the hourly rates specified on an Order Form as those applying for services which are not covered by the Allocated Hours.
Subscription Price means the monthly price specified on the Order Form (exclusive of any GST) to be paid under the Agreement by the Client, which may be comprised of a combination of fees and charges and/or calculated according to a methodology specified on the Order Form.
Uniform Law means the Legal Profession Uniform Law (NSW).

Other defined terms in the Order Form or in the remainder of this OnDemand Subscription Agreement have their meaning derived from context wherever provided.

Rules of Interpretation

In the Agreement, unless the context explicitly provides otherwise:

references to an agreement means the Agreement and includes any schedules, annexures or attachments, references to a party means a party to the Agreement, references to a party includes that party’s successors, permitted substitutes or permitted assigns, and references to a clause, is to a clause in the Agreement;
words denoting individuals or persons include bodies corporate and vice versa, references to documents or agreements also mean those documents or agreements as changed, novated or replaced, words denoting one gender include all genders, the singular includes its plural and vice versa, varying grammatical forms of defined words or phrases have their corresponding meanings, and words such as ‘including’ or ‘for example’ do not limit the meaning of the words preceding or following them;
references to legislation or provisions of legislation include changes or re-enactments of the legislation and statutory instruments and regulations issued under the legislation and references to any agreement or document is to the agreement or document as amended, supplemented, novated or replaced from time to time;
if the day on (or by which) anything is to be done or the day on which something occurs, is not a Business Day, then it must only be done, or it is deemed to have occurred, on the next Business Day, and a reference to time is to the time in Sydney, New South Wales;
references to ‘dollars’ or ‘$’ is to Australian currency;
obligations under the Agreement affecting more than one party bind them jointly and each of them severally; and
nothing in the Agreement is to be interpreted against a party solely on the ground that the party or its advisers drafted it, and headings, or a reference to a section by its heading, are used for convenience only and the wording of the heading does not affect interpretation.

Survival of Clauses

The provisions of the Agreement under the headings Payment Terms, Liability, Client Documents along with any provisions required for their proper operation, survive termination or expiry of the Agreement for any reason.

Allocated Professional Services Hours

Allocated Hours

The Order Form will set out hours that Artificer will allocate for use by the Client during each month within the term of the Agreement (Allocated Hours). The allocation of the hours to the Client is made by Artificer in consideration for the Subscription Price, subject to the terms of the Agreement.

The Client is responsible for determining how the allocated hours are used within each month, and will do so following the procedures in the Agreement. If the Client does not provide instructions for some or all of the Allocated Hours during any given month, it amounts to an instruction to Artificer to use those hours remaining on standby.

Requests for Roll-over

Normally, the Allocated Hours are only able to be used within the month they are allocated. However, the Client may request for Artificer, through the Online Ticketing System, to re-allocate (or 'roll-over') unused hours from the current month into the next month within the same term.

A request to roll-over unused hours can be made two months in a row, but must not be made three months in a row. In other words, the Client can request to push the allocation of hours to the last month of each quarter within the term, but must use the hours by the end of the last month in the quarter.

If Artificer determines that it does not have the capacity to accommodate the Client's request to roll-over the hours to the next month, then it may allocate the unused hours to the subsequent month. If this occurs, those rolled-over hours are not able to be further rolled-over.

Artificer may, at its sole discretion, refund the pro-rata portion of the Subscription Payment corresponding to the unused Allocated Hours instead of performing a roll-over.

Accessing Services

Authorised Users

Client must nominate at least one user who is duly authorised within the Client's organisation to use the Allocated Hours and to provide Artificer instructions as legal counsel for the Client (each an Authorised User). Authorised Users can be removed or added using the facilities provided by the Online Ticketing System. Each Authorised User must supply an accurate name, email address and telephone contact number.

The Online Ticketing System

Subject always to the Agreement, Artificer will administer the Online Ticketing System and provide the Client's Authorised Users access to it. In order to use the Allocated Hours, the Authorised User must access the Online Ticketing System and raise a ticket. Access can be by any method supported by the Online Ticketing System (for instance, the system may support email via a designated email address).

If the Online Ticketing System is not available (for example due to hosting service or ISP outage or third-party maintenance by the software vendor), Artificer will make available a telephone or email contact for the period of unavailability and correspond through that medium. Artificer does not guarantee uptime for the Online Ticketing System, but will use reasonable efforts to ensure it is available throughout the term.

Using the Allocated Hours

Once the Authorised User has raised a ticket to request Allocated Hours be used, Artificer will respond to the request to the extent that it is made within scope and in accordance with the Agreement. It may be necessary for Artificer and the Authorised User to narrow down the scope of work required to complete the request.

The Allocated Hours are used by Artificer to complete the request by assigning professional resources to complete the work as though it was any other legal matter (in other words, to the same professional standard).

This means Artificer has discretion to use each Allocated Hour to assign resources with the appropriate seniority to complete the work. In a typical scenario, a Lawyer will complete most of the work, and a Senior Lawyer will supervise and perform quality assurance activities over drafts before they are provided to the Client for use.

The Client is entitled to receive an estimate of the anticipated use of the Allocated Hours prior to Artificer proceeding with the service request, and regular updates on the erosion of Allocated Hours. The Client must request this information if it requires it, because unless notified Artificer will assume that promptly addressing the service request is more important than outlining the estimated costs.

Services exceeding the Allocated Hours

If the Authorised User requests services that exceed the available Allocated Hours, those services will be performed and charged according to the Ordinary Rates, depending on the resources required, and will be invoiced at the conclusion of the month.

Reporting on Hours

At the request of the Authorised User via the Online Ticketing System, Artificer will provide the Client with any requested information about its use of hours (whether Allocated Hours or not). The Client also has the right to receive an itemised bill at the conclusion of each month in accordance with the Uniform Law.

Instructions Authority

By registering to use the platform, each Authorised User confirms they havethe requisite authority to provide instructions to Artificer as legal counsel on behalf of the Client without needing to have those instructions confirmed by any other person(s). Artificer shall be promptly informed in writing of any change in authority.

Scope of Services

Inclusion Examples

The purpose of the services under the Agreement is broadly to support the Client's internal business operations by supplementing them with targeted legal advice and assistance through a digital platform.

Without limiting the remainder of the Agreement, most tasks normally done by a commercial lawyer are within scope. The following is a non-exhaustive list of services examples which are acceptable uses within scope:

reviewing, advising on and drafting contracts like Subscription Agreements, Non-Disclosure Agreements, Supply Agreements and others;
pre-litigation solicitor activities, defined as any activities to defend a Client's interests in a dispute prior to commencement of proceedings by any party, excluding any advice that Artificer considers is best provided by a Barrister;
representing the Client at contract negotiations occurring via videoconference, or providing advice in preparation for negotiations;
corporations law transactions, such the issue of new shares, sale of existing shares or assisting in the legal aspects of administration of the company;
franchising advice and compliance, including review of franchising agreements, compliance with the Franchising Code of Conduct and negotiation support with franchisors;
assistance for business startups including drafting or advising on capital raising instruments, negotiations with venture capital firms, shareholders agreements, trusts and business structuring;
review and advice on corporate leases, premises licensing
finance and securities law, including drafting, reviewing and advising on debt financing instruments (loan agreements), advice on the Personal Property Securities Act 2009 (Cth) (PPSA) and its register (PPSR);
advice and drafting for internal employment matters like awards, drafting of employment agreements, bonus structures, employee share option plans and similar incentive schemes;
advice on privacy matters, data governance and compliance including the drafting, updating and practical advice on the implementation of Privacy Policies; and
an initial triage of a Cyber Incident and performance of an eligible data breach assessment under the Privacy Act 1988 (Cth) (but only up to this point in the incident response process, further steps not being included).

Meetings and attendances

Artificer does not a guarantee that practitioners will be available at any particular time for a meeting. Therefore, if the service request by the Client involves a video-conference or digital meeting with its personnel or with third parties, the Online Ticketing System will be used to coordinate a mutually acceptable time for the responding practitioner to meet with the required parties.

Artificer is not responsible if a practitioner is unable to attend any particular meeting because of interruptions or factors outside of Artificer's control (for instance ISP or power outages, medical emergencies etc.) and the Client acknowledges it may have to occasionally reschedule meetings because of unplanned absences, just as is the case in the ordinary course of business.

Qualifications and Exclusions to Scope

The request will not be answerable by Artificer to the extent it is made for the following out-of-scope services:

any legal areas outside of Artificer's areas of expertise (tax advice, financial planning advice, accounting advice, criminal law, financial services law or medical/health care law) or legal advice in other jurisdictions;
legal advice or work performable for an entity other than the Client company Artificer is contracted with (this rules many areas like criminal law, family law, succession law out of scope, as they relate to the legal matters of a person not a corporate entity);
conveyancing and acting or advising on significant real estate transactions (defined as anything beyond the review of corporate leases, fitout/incentive deeds and any other incidental property matters as approved by Artificer from time-to-time);
insurance advice ordinarily provided by a licensed Insurance Broker (however advice pursuant to the Client's rights under the Insurance Contracts Act 1984 (Cth) and other insurance advice regularly provided by a solicitor to a policyholder is not excluded);
services requiring on-site or in-person visits or meetings;
services requiring safe custody document storage (which must be dealt with in a separate arrangement);
any legal matter in which Artificer is conflicted from acting, subject to making a reasonable assessment as to the viability of instituting a Chinese Wall to allow Artificer to act;
conducting litigation (defined as any services required to commence proceedings or to progress litigation beyond commencement, including obtaining expert opinions from a Barrister as to the viability of commencement, court appearances or preparing/filing of process);
international Trade Mark applications or responses (note that Australian Trade Mark applications are not excluded);
patent drafting, applications, renewals or response assistance;
immigration law assistance;
non-legal secretarial or administrative support, word processing support, formatting, design or document presentation work;
providing commercial advice, or preparing commercial schedules in documentation;
compliance work incidental to Information Security Standards such as ISO 27001, SOC 2 and similar standards (because the service is not intended to be a replacement for an outsourced Information Security Manager, Artificer may be able to offer this as a separate service, depending on the Client's requirements); and
cyber incident response services beyond an initial triage and eligible data breach assessment.

Process where out-of-scope request occurs

If a request comes through the Online Ticketing System which contains an out-of-scope element, Artificer will either:

provide a separate estimate to assist as a distinct legal matter;
offer referral options to another practitioner it considers has the expertise to assist the Client; and
decline to assist with the out-of-scope element of the request, and close the ticket when the in-scope elements of the request have been addressed.

Other Scope Exclusions on Order Form

The Order Form may provide that other exclusions apply, or it may vary the above exclusions in some way. If it varies them, then the variations supersede the exclusions set out above.

Acknowledgements of certain uses of advice

Caveats about ongoing relevance of advice

Once a service request has been answered by Artificer, it is not not responsible for informing the Client of changes in the law, regulations or continuously updating/adapting works or documents provided as part of the service request. The Client must make an additional service request in order to seek Artificer's views on whether documents, policies or previous works should be updated in light of changes in the law or whether they are still fit for purpose.

Common Interest Privilege Advice

In rare cases, Artificer may be capable of giving advice to the Client that assists a third party whose interests or objectives are aligned with the Client's in respect of a given matter or transaction. Such advice may be protected by law under a concept called 'Common Interest Privilege'.

The Client acknowledges it should always notify Artificer prior to sharing any advice or materials received through the service with third parties. The advice may need to be limited to the extent that the parties' interests remain aligned. If the interests of the parties diverge, it may be necessary for Artificer to cease providing materials that may be shared with the third party, and instead recommend that the parties retain separate legal counsel in respect of the transaction.

Term and Termination

Initial Term

This Order Form commences on the Commencement Date and continues for the number of months specified on the Order Form (the Initial Term) unless terminated earlier in accordance with its terms.

Continuation of Subscription or Ordinary Termination

Subject to any Updated Terms or Updated Pricing, after the Initial Term, the Agreement will automatically renew for a further twelve (12) month term (each a Renewal Term), unless:

either party provides the other party with written notice of termination at least thirty (30) days prior to the expiration of the Initial Term or if applicable, the Renewal Term, in which case the Agreement will terminate upon expiry of either the Initial Term or the Renewal Term (as the case may be); or
the Client is in breach of any of its payment obligations under the Agreement, in which case Artificer may terminate the Agreement effective at the expiry of the Initial Term (or if applicable, the Renewal Term) without limiting its other legal rights.

Suspension of Service for Client's failure to make payment

Without limiting Artificer's other rights or remedies at law or under the Agreement, Artificer may suspend use of the Online Ticketing System or suspend provision of services if the Client is in breach of any of its payment obligations.

Payment Terms

Subscription Payments by Client

The Client agrees to pay Artificer the Subscription Price monthly in arrears for the duration of the Initial Term (which is set out in the Order Form) and to pay for any Renewal Term in accordance with the remaining paragraphs of this Payment Terms clause.

Where the Client makes requests for services over and above the Allocated Hours, the Client agrees to pay for these alongside the Subscription Price. Artificer will specify them on the invoice.

Expenses and Disbursements

The Client is also responsible to pay for expenses and disbursements which Artificer incurs in carrying out the Client instructions. Artificer will ordinarily set out the estimate for expenses and disbursements by reply on the Online Ticketing System, and seek the Client's prior written approval to incur them.

However, the Client agrees that in exceptional circumstances (such as where deadlines apply) Artificer may not have time to seek prior approval for incurring the expense or disbursement. The Client is still responsible under those circumstances for all expenses and disbursements reasonably incurred by Artificer in carrying out the instructions of the Client.

Timing of Invoices

Artificer will issue an invoice for the Subscription Price, and for any additional services used, on the monthly billing date, being the same day of the Commencement Date in the next month (or 1 March in the case of an Order Form with a Commencement Date of 29 February in a non-leap year).

Updates to Terms or Pricing after the Initial Term

Artificer will notify the Client thirty (60) days prior to a Renewal Term if:

the terms of the Agreement have been updated (Updated Terms), in which case Artificer will provide access to a copy of the Updated Terms along with the notice; and/or
the Subscription Price for the upcoming Renewal Term is changing (Updated Pricing).

By continuing into the Renewal Term the Client agrees to pay the Updated Pricing for the Renewal Term and that it will be governed by any Updated Terms. If Artificer does not provide the notice of Updated Terms or Updated Pricing, the Renewal Term will continue at the same price as the previous term's subscription and the Renewal Term will be governed by the existing terms in force at that time (whether original or Updated Terms).

GST

Where applicable, GST is payable on the Subscription Price, professional fees for additional services, expenses and disbursements and will be clearly shown on Artificer's tax invoices. By accepting these terms the Client agrees to pay Artificer an amount equivalent to the GST imposed on all fees, expenses and disbursements.

Liability

Limitation

Artificer and each of its officers and employees may, from time to time, participate in a limitation of liability scheme approved under Professional Standards Legislation. To any extent that the scheme does not apply (including where Artificer's officers/employees are not participating), the Client acknowledges and agrees that the total aggregate liability of Artificer and its officers and employees, whether under statute, in contract (including under an indemnity), in tort (including for negligence), or otherwise for loss or liability (of any nature) suffered or incurred by the Client or a third party under or in connection with the Agreement or Artificer's legal services, is limited to $1,500,000 (inclusive of all interest and costs), subject to the balance of this clause.

Exceptions to Limitation

The above limitation does not apply to the following types of loss or liability:

the death of, or personal injury to, a person;
an intentional tort;
a breach of trust;
fraud or dishonesty; and/or
any other liability which cannot be excluded or limited by law.

Mitigation

Any liability of Artificer or its officers and employees will be reduced to the extent the relevant liability was:

caused or contributed to by the acts or omissions of the Client or its personnel (including any failure(s) to take reasonable steps to mitigate loss); and
any event or circumstance beyond Artificer's reasonable control.

Consequential loss

To the extent permitted by law, under no circumstances whether in tort, contract (including under an indemnity) or otherwise, will Artificer be liable to the Client for the following types of loss, damage or liability:

any indirect, special, incidental, or consequential loss or damage of any character; or
any claims, losses or damages (whether actual or anticipated) for loss of goodwill, profits, revenue, future contracts, opportunity or anticipated savings.

The above applies regardless of whether such loss, damage or liability was foreseeable, known or may have reasonably been within the contemplation of the parties before, during or after the Agreement was made.

Notification of Client Rights

Rights as a Client of a Law Practice

It is the Client's right to:

negotiate a costs agreement with Artificer;
negotiate the method of billing (e.g. task based or time based);
request and receive an itemised bill within 30 days after a lump sum bill or partially itemised bill is payable;
seek the assistance of the designated local regulatory authority (the NSW Commissioner) in the event of a dispute about legal costs;
be notified as soon as is reasonably practicable of any significant change to any matter affecting costs;
accept or reject any offer Artificer makes for an interstate costs law to apply to the matter; and
notify Artificer that it requires an interstate costs law to apply to the matter.

If the Client requests an itemised bill and the total amount of the legal costs specified in it exceeds the amount previously specified in the lump sum bill for the same matter, the additional costs may be recovered by Artificer only if:

when the lump sum bill is given, Artificer informs the Client in writing that the total amount of the legal costs specified in any itemised bill may be higher than the amount specified in the lump sum bill, and
the costs are determined to be payable after a costs assessment or after a binding determination under section 292 of the Uniform Law.

Nothing in these terms affects the Client's rights under the Australian Consumer Law.

Rights in relation to a dispute concerning legal costs

If the Client has a dispute in relation to any aspect of Artificer's legal costs, the following avenues of redress are available:

in the first instance, to discuss the concerns with Artificer so that any issue can be identified and Artificer can have the opportunity of resolving the matter promptly and without it adversely impacting on the business relationship between the parties;
the Client may apply to the Manager, Costs Assessment located at the Supreme Court of NSW for an assessment of legal costs. This application must be made within 12 months after the bill was provided or request for payment made or after the costs were paid.

Client Documents

Retention

On completion of the Client's legal work, or following termination (by either party) of the Agreement, Artificer will retain the Client's documents for 7 years. The Client's agreement to these terms constitutes authority for Artificer to destroy the file after those 7 years.

Lien

Without affecting any lien to which Artificer is otherwise entitled at law over funds, papers and other property of the Client's:

Artificer shall be entitled to retain, by way of lien, any funds, property or papers of the Client's, which are from time to time in its possession or control, until all costs, disbursements, interest and other moneys due to it have been paid; and
Artificer's lien will continue notwithstanding that it ceases to act for the Client or termination or expiry of the Agreement.

General

Notices

A notice or other communication to or by a party under the Agreement must be in writing and signed by the sender or a person authorised by the sender and may be served by delivery in person or by email to the ordinary email address used by the party receiving the notice. The notice will be treated as being given when it successfully enters the recipient’s email system.

Waivers and Variation

A waiver of a right, power or remedy must be in writing and signed by the party giving the waiver. Any failure or delay by any party to exercise any power or right or rely on a remedy under the Agreement does not operate as a waiver of that power, right or remedy.

The Agreement cannot be modified in any way subsequent to its execution unless by agreement in writing signed by Artificer and the Client.

Governing Law

The law of New South Wales governs the Agreement. It also governs the legal costs in relation to any matter upon which Artificer is instructed to act, unless the Order Form provides or is varied such that an interstate costs law applies to the legal matter, or the parties agree to an interstate costs law applying via the Online Ticketing System.

Whole Agreement

The Agreement constitutes the entire agreement of the parties in respect of its subject matters and supersedes all prior negotiations and agreements, whether written or oral, relating to the engagement of Artificer.

Assignment

Unless otherwise expressly provided in the Agreement, a party is not capable of assigning, novating or encumbering any right or liability under the Agreement without the prior written consent of the other party.

Severability

All or part of any provision of the Agreement that is illegal, invalid or unenforceable will be severed from the Agreement and the remaining provisions (and parts of provisions) will continue in force.