Retainer & Costs Agreement

This Agreement contains terms applicable specifically to legal services provided by Artificer

Introduction

Statement of Work

By executing a Statement of Work with this Retainer and Costs Agreement incorporated by reference, the Client identified on the Statement of Work confirms it engages Artificer to act as a legal representative of it for the work identified on the Statement of Work, and by executing the Statement of Work Artificer confirms it is able to act for the Client in respect of that work.

Structure of Agreement

The Statement of Work together with this Retainer & Costs Agreement and the Artificer General Terms of Business (which is incorporated here by reference) sets out the terms of Artificer's offer to provide legal services to the Client and constitutes a Costs Agreement and disclosure pursuant to the Legal Profession Uniform Law (NSW) (Uniform Law).

Rules of Interpretation

The provisions in this document are interpreted according to the Rules of Interpretation.

Survival of Clauses

The provisions of the Agreement under the headings Professional Fees and Expenses, Liability, Client Documents, Authorisation to Transfer Money from Trust Account, along with any provisions required for their proper operation, survive termination or expiry of this Agreement for any reason.

Scope of Work

Scope

The Client is instructing Artificer to perform the scope of work set out in the Statement of Work.

Qualification and Exclusions to Scope

Artificer's work will be limited to the items identified as within scope in the Statement of Work, and specifically excludes items or services identified as exclusions under it, unless the parties otherwise agree in writing at a future time.

Artificer's regular regular process is to issue a Variation to a Statement of Work for the Client's signature, but if the parties agree to expressly skip this process for mutual convenience, then the parties agree to be bound by varied terms agreed upon expressly in writing.

Deliverables

If legal services provided are to result in any specified Deliverables, they will be identified on the Statement of Work along with any Client inputs or instructions required to produce those Deliverables.

If the Statement of Work specifies Acceptance Criteria or a specific acceptance procedure to be followed in respect of Deliverables resulting from legal services, then Artificer will follow that procedure or meet that Acceptance Criteria.

If no Acceptance Criteria or procedure is provided in respect of a Deliverable, then it is deemed accepted when a Client raises no further instructions in respect of the Deliverable or after a reasonable time period has elapsed giving regard to the complexity or purpose of the Deliverable.

Potential Conflicts of Interest

The Client is required to disclose information about any other parties to a legal matter in which Artificer is acting. This includes all friendly or adverse parties.

As at the date of execution of the Statement of Work, Artificer is aware of any conflict of interest, but it reserves the right to cease acting at any time and to recommend that the Client obtains separate advice should Artificer consider that there may be an actual, percieved or anticipated conflict of interest in acting for the Client.

Professional Fees and Expenses

Basis for Calculation

By default Artificer will charge for legal work on a time-costed basis. Wherever a more specific basis for costing is set out in a Statement of Work that basis will apply instead.

Wherever time costing is used the Client will be proportionately charged for work involving shorter periods less than an hour. Charges will be structured in 6 minute fractions of an hour. For example, the time charged for work of up to 6 minutes will be 0.1 of an hour and the time charged for an attendance between 6 and 12 minutes will be 0.2 hours.

Estimates of Professional Fees

Unless expressly provided otherwise (such as where a fixed fee is indicated), costs set out in a Statement of Work are estimates, based on any assumptions provided. The total costs the Client must pay may ultimately exceed the estimate, especially in circumstances where an assumption proves to be incorrect. Artificer employs digital systems to assist the Client in monitoring expediture, and enquiries can be made about current costs incurred at any time.

Assumptions in a Statement of Work

Artificer is relying on the Client to inform it as early as possible if an assumption in a Statement of Work is incorrect. In such a case, the Client agrees to work with Artificer to vary the Statement of Work to ensure that the estimate is accurate and error-free, for instance by increasing the work hours of the estimate.

It is a default assumption of every Statement of Work that includes legal services that there are variables which may impact upon the cost estimates provided for those legal services, which include:

  1. the number and duration of conference calls or other communications;

  2. prompt and efficient response to requests for information or instructions by the Client;

  3. whether instructions are varied by the Client during the course of work, and therefore whether work has to be revised in light of varied instructions;

  4. the lawyer or other persons with whom Artificer is required to deal and the level of co-operation of the lawyer’s clients and other persons involved;

  5. changes in the law or the complexity or uncertainty of legal issues affecting the legal matter.

Expenses and Disbursements for Legal Services

The Client is responsible to pay for expenses and disbursements which Artificer incurs in carrying out the Client instructions.

Artificer will set out the estimate for expenses and disbursements in the Statement of Work or in a Variation to the Statement of Work, and ordinarily 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.

Cessation pending trust funds

Artificer may determine not to perform chargeable work or incur expenses in excess of the amount that is held in Artificer's trust account on the Client's behalf.

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:

  1. the death of, or personal injury to, a person;

  2. an intentional tort;

  3. a breach of trust;

  4. fraud or dishonesty; and/or

  5. any other liability which cannot be excluded or limited by law.

Term and Termination

Termination by Artificer

Artificer may cease to act for the Client or refuse to perform further work, terminating the Agreement, under the following circumstances:

  1. while any of Artificer's tax invoices remain unpaid;

  2. if the Client does not, within 7 days, comply with any request to pay an amount in respect of disbursements or anticipated future costs;

  3. if the Client fails to provide Artificer with clear and timely instructions to enable the advancement of the legal matter matter, for example, compromising Artificer's ability to comply with Court directions, orders or practice notes;

  4. if the Client refuses to accept Artificer's advice;

  5. if the Client indicates to Artificer or Artificer forms the view that the Client has lost confidence in its delivery of legal services;

  6. if there are any ethical grounds which Artificer considers require it to cease acting for the Client, for example a conflict of interest;

  7. for any other reason outside Artificer's control which has the effect of compromising Artificer's ability to perform the work required within the required timeframe; or

  8. if, in Artificer's sole discretion, it considers it is no longer appropriate to act for the Client; or

  9. for just cause.

Artificer will give the Client reasonable written notice of termination of the Agreement. The Client will be required to pay costs, expenses and disbursements incurred up to the date of termination.

Termination by the Client

Subject to the remaining subclauses under this Termination by the Client heading, the Client may terminate the Agreement by written notice at any time.

If the Client terminates this way, it will be required to pay Artificer's costs incurred up to the date of termination (including if the matter is litigious, any cancellation fees or other fees such as hearing allocation fees for which Artificer remains responsible).

The termination of this Agreement does not affect any agreement for technology services goverened by a Technology Services Agreement.

If the Client's termination of this Retainer and Costs Agreement would cause Artificer to be unable to perform technology services under a Technology Services Agreement, then a variation of that agreement must be entered into to accommodate the impacts of the termination (for instance, to accommodate other legal counsel to advise appropriately instead of Artificer, or to reduce the scope of work Artificer is liable to perform under that agreement). If that agreement is not appropriately varied, it is treated as a Dependency Failure under that agreement.

Notification of Client Rights

Rights as a Client of a Law Practice

It is the Client's right to:

  1. negotiate a costs agreement with Artificer;

  2. negotiate the method of billing (e.g. task based or time based);

  3. request and receive an itemised bill within 30 days after a lump sum bill or partially itemised bill is payable;

  4. seek the assistance of the designated local regulatory authority (the NSW Commissioner) in the event of a dispute about legal costs;

  5. be notified as soon as is reasonably practicable of any significant change to any matter affecting costs;

  6. accept or reject any offer Artificer makes for an interstate costs law to apply to the matter; and

  7. notify Artificer that the Client 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:

  1. 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

  2. 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:

  1. 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;

  2. 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.

Authorisation to Transfer Money from Trust Account

The Client authorises Artificer to receive directly into its trust account any judgment or settlement amount, or money received from any source in furtherance of the Client's work, and to pay its professional fees, expenses and disbursements in accordance with the provisions of Rule 42 of the Legal Profession Uniform General Rules 2015 (NSW) (Uniform General Rules). A trust statement will be forwarded to the Client upon completion of the matter.

Client Documents

Retention

On completion of the Client's legal work, or following termination (by either party) of legal services, 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.

The authority does not relate to any documents which are deposited in safe custody which will, subject to agreement, be retained on the Client's behalf indefinitely. These documents have special arrangements and costs attached to their storage and retrieval, which will be documented in a Statement of Work.

Lien

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

  1. 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

  2. Artificer's lien will continue notwithstanding that it ceases to act for the Client or termination or expiry of the Agreement.

Privacy

Collection

Artificer will collect personal information from the Client in the course of providing its legal services. It may also obtain personal information from third party searches, other investigations and, sometimes, from adverse parties.

Artificer is required to collect the full name and address of its Clients by Rule 93 of the Uniform General Rules. Accurate name and address information must also be collected in order to comply with the trust account record keeping requirements of Rule 47 of the Uniform General Rules and to comply with its duty to the courts.

Use of Personal Information

Client personal information will only be used for the purposes for which it is collected or in accordance with the Privacy Act 1988 (Cth). For example, Artificer may use personal information to provide advice and recommendations that take into account the Client's personal circumstances.

If the Client does not provide us with the full name and address information required by law, Artificer cannot act as legal representative. If the Client does not provide Artificer with the other personal information that is requested, Artificer's legal advice may be wrong or misleading.

Privacy Policy

Artificer publishes a Privacy Policy which provides details about how Artificer generally collects, holds, uses and discloses personal information in the performance of its services,