Access & Engagement Agreement
BETWEEN
RHC Solicitors
(identified herein as us, we, our)
AND
[Name of Person/Entity who has used and/or signed our sign-in feature (provided by and through Formsite®) at the time of attending one of our offices]
(identified herein as you, your)
1. Agreement
(a) This is a binding and irrevocable agreement between you and us and may only be amended by the written consent of our director(s).
2. Supersedes Previous Communications
(a) You hereby acknowledge, understand and agree:
(i) this agreement (together with any applicable documents that may be referred to herein) constitute the entire agreement between the parties and shall supersede and extinguish all previous discussions, correspondence, negotiations, drafts, agreements, promises, assurances, warranties, representations and understandings, whether written or oral (altogether referred to as “prior communications”);
(ii) that where prior communications exist, you are consenting to an amendment and/or full extinguishment in writing by virtue of this provision;
(iii) that despite anything to the contrary in this agreement, nothing in this clause two (2) is intended to affect, alter, or otherwise amend in any way whatsoever any applicable Disclosure Notice, Client Service Agreement, Employment Agreement, Employment Policy and/or Procedure between you and us, which by virtue of this provision will remain in full force and effect despite anything to the contrary contained in this agreement;
3. Proprietary Information
(a) In connection with your visit to our office, your employment or our business relationship with you, we may grant you access, or may allow you access, to business, technical or other information, materials and/or ideas (“Proprietary Information”) which term shall include, without limitation, anything you learn or discover as a result of your visit, employment or our business relationship with you or exposure to, or analysis of, any Proprietary Information.
(b) You hereby agree:
(i) that you will hold in confidence and will not possess or use (except as required to evaluate the proposed business relationship within us) or disclose any Proprietary Information except information you can document including information that is in the public domain through no fault of yours, was properly known to you, without restriction and prior to disclosure by us or was properly disclosed to you by another person without restriction;
(ii) that you will not reverse engineer or attempt to derive the composition or underlying information, structure or ideas of any Proprietary Information. The foregoing does not grant you a license in or to any of the Proprietary Information;
(iii) that if you decide not to proceed with the proposed business relationship with us, or your employment otherwise comes to an end, or if asked by us, you will promptly return all Proprietary Information and all copies, extracts and other objects or items in which Proprietary Information may be contained or embodied;
(iv) that you will promptly notify us of any unauthorised release, disclosure or use of our Proprietary Information;
(v) that you understand that this Agreement does not obligate us to disclose any information or negotiate or enter into any agreement or relationship with you should we not wish to do so;
(vi) that you will strictly abide by any and all instructions and restrictions provided by us from time to time with respect to Proprietary Information or our systems, procedures, processes or policies. You will also ensure the security of any facilities, machines, accounts, passwords and methods you use to store any Proprietary Information or to access our systems and ensure that no other person has or obtains access thereto;
(vii) that the terms of this Agreement will remain in effect with respect to any particular Proprietary Information until you can document that such Proprietary Information falls into one of the exceptions contained in this agreement;
(viii) that you acknowledge accept that due to the unique nature of the Proprietary Information, any breach of this agreement would cause irreparable harm to us for which damages are not an adequate remedy, and that we shall therefore be entitled to equitable relief in addition to all other remedies available at law.
4. Collection of Personal Information and Marketing
(a) You hereby agree and consent that:
(i) from time to time, we will collect your personal information that you enter either through using our sign in feature, registration process or sign in software or otherwise by leaving us a review of any sort on any of our social media platforms;
(ii) we may use any of your personal information that we have collected for marketing purposes and to maintain a professional relationship with you and to provide legal updates and other information that we think may be of interest to you. Contact may be by telephone, email, facsimile, direct mail or otherwise as we deem fit and proper in our absolute discretion;
(iii) any personal information that we collect from time to time may be shared with related or affiliated entities to us. We will endeavour to keep your personal information strictly confidential unless it is already in the public domain without fault of our own and will do everything that we reasonably can to ensure no personal information is released unless otherwise in accordance with this agreement;
(iv) some of the reasons that your personal information will be released by us may include for internal auditing purposes, administrative purposes, to share reviews left by you to the public (including by way of editing them for the purposes of shortening and integration on our website, which you consent to), your name to a contact list (including guest lists, invitations lists or advertising lists) or helping us to identify market trends, production and business activities or investments opportunities, which may be of benefit or interest to you;
(v) we will do everything we reasonably can to ensure that we do not use or disclose your personal information for any other purpose other than listed in this agreement, which you hereby consent to us doing;
(vi) in some situations, we may be required to disclose your information without obtaining your express or implied consent. Your consent is not required if it is:
required or authorised by the law;
required by investigative bodies or enforcement agencies;
required for us to comply with an Order of the Courts;
necessary for us to prevent or reduce the risk of a serious or imminent threat to the health or safety of a person, individual, the public or otherwise;
(i) we will generally retain personal information within Australia only. On some occasions, we may be required to transmit your personal information overseas to perform our functions or activities, which may include any number of reasons disclosed in this agreement. In such circumstances, we will do everything that we reasonably can to ensure that we protect your information in a way that it is protected as if it were within Australia;
(ii) from time to time, we will rely on third party organisations to provide us with business services, security services or any other service. In this agreement, we are able to disclose your personal information to such entities, however, we will abide by National Privacy Principles and the rules surrounding confidentiality. Where we decide to disclose your personal information, we will ask third parties to provide us with an undertaking / confidentiality agreement, the terms of which will generally include not using your personal information other than as we may direct.
5. Lawful directions
(a) You hereby agree to follow all lawful directions of our staff members and/or, if applicable, your manager.
6. Certification of Documents
(a) If the purpose of your visit is exclusively for the certification or witnessing of documentation by a solicitor, justice of the peace or commissioner for declarations, you hereby accept and agree:
(i) that you have not (and will not under any circumstance) receive legal or other advice of whatsoever kind in respect of your documentation.
(ii) to indemnify and hold us harmless, including your host or the person that certifies or witnesses your documentation now and into the future from any claim, action, proceeding, demand, suit, loss, damage or otherwise incurred by you as a result of, or incidental to, the certification or witnessing of your documentation. To that end, this agreement may be pleaded as a full bar to same.
7. Sale of Goods and Services
(a) If you are, or have, sold goods and/or services to us and/or we enter into an agreement in respect of the sale of goods and/or services to us, you hereby agree that:
(i) volume three (3), schedule two (2) of the Competition and Consumer Act 2010, is deemed incorporated into this agreement and applies to us by way of our statutory right and/or in the alternative if we have no statutory rights thereunder for any reason then it shall apply to us as if we were a consumer ourselves by way of incorporation of such provisions into this agreement so as to give the parties a standard of business conduct.
(b) If we intend, have, or are otherwise deemed to have, given you legal services then you agree as follows:
(i) you have accessed, read, understood and hereby agree to be bound by all the provisions contained in our Client Services Agreement accessible at www.rhcsolicitors.com.au/client-services-agreement; and
(ii) that the Client Services Agreement shall be incorporated into this agreement by reference and your signature to this agreement shall also be deemed an acceptance to that agreement.
(iii) that in respect of mortgage or loan documentation (including but not limited to reverse mortgage documentation and guaranteeing and indemnifying a lender for a third-party person/entity) that:
you have been/will be honest and open in your dealings with the lender, borrower and/or us or any other associated party to the transaction; and
you have read and understood all the documents presented to us prior to your attendance at our office; and
you have/will receive advice in respect of the documents presented to us including, but not limited to the following:
the general nature and effect of the documents;
whether the document is a guarantee, indemnity or a hybrid of both;
that a guarantee is generally where one party promises to another party that s/he will perform the contract and/or compensate the loss, in case of default of another person who generally is obtaining the loan;
that an indemnity is generally where one party promises to another, usually a lender, that s/he will compensate for any loss suffered by a third party, usually the borrower;
that you could potentially be liable
whether the documents presented are an ‘all accounts’ guarantee or is it limited to a specific transaction, for example, a housing loan;
that an ‘all accounts’ guarantee is an all-encompassing guarantee that can and usually covers past, future, actual and contingent indebtedness of the borrower. It basically assures the lender that any money that is at any time owed by the debtor to the lender will be paid by the guarantor. It covers things like loans given to the borrower, credit card debts, bank account overdrafts, chattel leases and another other money owed by the borrower;
whether the guarantee is limited in duration and the procedure to revoke a continuing guarantee and the effects of revocations;
whether the guarantee is limited to a certain amount of money and whether this jeopardises your right of contribution;
that in the event there is two or more guarantors, whether there is a preservation of liability for you if some do not, or refuse to, sign;
the capacity in which you are signing the documents, for example, if you are a director whether you are providing a personal guarantee/indemnity or if you are trustee whether the guarantee is limited to the trust assets;
for appropriate cases, clauses excluding technical defences such as the right of subrogation which is generally defined as the substitution of one claim for another, especially the transfer of the right to receive to payment of a debt to someone other than the original creditor. In such regard, generally this is when a guarantor pays out all of the debt of the lender and that guarantor then being entitled to stand in the shoes of that lender. After payment in full not only is the guarantor able to claim against the borrower but he or she is also entitled to whatever security the lender held. All of this happens by operation of law and needs no separate agreement to be effective. In some situation, which could be the case in your documents, the position could be that you are not automatically entitled to this right of subrogation. This can also occur in situation where there is a lack of specification of same;
that the documents presented may have a provision dealing with suspense accounts. These commonly feature in guarantees and security documents. They allow a creditor to credit partial payments from a surety, or from realising assets subject to security from a surety, to a suspense or “securities realisation” account. The account represents a fund to which the creditor can resort, but without any obligation to do so until it has recovered all debts in full. This enables a creditor to prove for the full amount owed in a liquidation of the principal debtor where a shortfall is anticipated, thereby improving the prospects of a full recovery;
your rights in proof of bankruptcy and/or liquidation of the borrower or a co-guarantor and that a common practice is to include a provision making the guarantor’s proof of debt as not being in competition with the creditor/s (lenders) proof of debt and/or that the guarantor’s proof of debt may be rejected;
whether there is a conclusive evidence/prima facie evidence clause, which is usually common practice and is generally intended to provide that, without limitation, a notice of default that is given stating the amount due is conclusive evidence that the guarantor’s liability to pay the amount stated has accrued and is binding;
you understand the nature and effect of any indemnity and the potentiality of being personally liable and the potential of that liability and what it could include, including the risks and consequences of a default by the borrower; and
that the documents represent your intention; and
you have made proper and adequate enquiries into the financial viability of the transaction between the lender and borrower by consulting with a financial adviser and if you have not done so, then you are electing not to at your sole risk despite our advice you should consult a financial adviser; and
you understand we cannot advise on the financial viability of the transaction, the borrowers ability to make required payments to you and/or the Lender or your ability to meet the demand of any default;
you have obtained sufficient information about the level of indebtedness of the borrower prior to attending our office; and
you have asked the lender about the transactions you are guaranteeing and that the lender has given you that information; and
you are not subject to duress, undue influence or any commercial pressure and if you are, you have raised or will raise this at your appointment; and
you are under no obligation to sign the documents presented to us and may pull-out at any time before execution; and
you understand generally as a guarantor, if the borrower defaults, you are not entitled to notice and that the lender can pursue you and/or any joint guarantor (usually jointly or severally meaning you personally or all the parties guaranteeing the transaction) without first pursuing the borrow (and that you do not generally have a right to insist they pursue the borrower first); and
you have taken or will take the liberty to ask any questions regarding the documents presented to us and that you have not left or will not leave our office without fully understanding your legal rights, obligations, the risks and consequences of same; and
you understand that where the borrower defaults in payment or in their obligations, you would be liable to make good the default which could involve all amounts owed by the borrower to and substantial arrears, interest and costs (usually on an indemnity basis meaning on a solicitor and own client basis);
that there is considerable risk, including the risk of losing any security, property and other assets and require very careful thought and consideration;
that in some situations, you are as a guarantor can be liable to make payment to a lender even if the borrower is found not to be liable;
as a condition before we accept the work you have given us, you have devised an ‘exit plan’ if you and/or the borrower are in default and that ‘exit plan’ is sufficient to meet the full extent of the lender’s loss and damage (inclusive of any costs on an indemnity basis) that may arise under the documents presented to us; and
you are hereby irrevocably agreeing to hold us, and the solicitor who has given you such advice, harmless by way of indemnity now and into the future in respect of, or incidental to, loss, damage, claim, expense, cause of action (whether threatened or instituted), cost (including a solicitor and own client basis) as a result of the provision of advice in relation to the documents presented to us and/or your retainer with us and/or for any act, omission, failure to clarify and/or raise any concern or questions at the appointment and/or not complying in all respects with the documentation and your obligations thereunder and/or obtaining independent legal advice if you feel you have not obtained proper or adequate advice and/or raising any issues with the advice within a reasonable time.
(c) If we, our director/s and/or employee/s intend, have, or are otherwise deemed to have, sold you our secondhand goods or business assets from our premises then you agree as follows:
(i) the Competition and Consumer Act 2010 shall not apply to the sale, as it is a one-off private sale outside our regular selling activities which is to provide legal services;
(ii) you shall not have any statutory rights or recourse other than as may be ordered as against us by a court of competent jurisdiction;
(iii) you shall not be covered by our public liability insurance or that of our body corporate;
(iv) that you hold and have maintained as current public liability, personal injury and death insurances prior to attending our office and removing any such goods of whatsoever kind;
(v) that we do not hold public liability insurance, personal injury and/or death insurances and that by entering our premises, you hereby do so at your sole risk. We further do not warrant or guarantee under any circumstance that our premises are free from risk;
(vi) that if you and/or anybody instructed by you remove the goods, that you/they have relevant trade experience, knowledge, the requisite qualifications and license to remove the goods from our premises, and in the event that you do not, you will engage a professional who does so as to avoid any risk of loss or damage, injury or death;
(vii) the removal of the goods shall be at your own risk and we specifically exclude liability of whatsoever kind for your refusal, failure or neglect to ensure that you engage a qualified and insured removalist who has the proper equipment and industry experience;
(viii) that you have personally sighted the condition of the goods, and that they are fit for their intended purpose and their condition is satisfactory;
(ix) that the goods may be irregular in shape, of significant size or weight, may have slippery or usual surfaces or have pretruding components which, if not handled by an expert/qualified removalist who is insured, could result in significant loss or damage, injury or death;
(x) that in the event that the removal of the goods causes loss or damage to any part of the premises, or anything in the premises, or otherwise causes loss, damage and/or injury or death to a person or persons, then you shall be responsible for it and herby agree to indemnify us for same in accordance with clause 7(c)(xi).
(xi) that you will hereby indemnify and hold us, our director/s and/or employee/s harmless, jointly and severally, from any claim, action, proceeding, demand, suit, loss, expense (including legal costs on a solicitor own client basis), damage (including but not limited to injury or death) or otherwise incurred as a result of your negligence, or failure to comply with your obligations under this clause;
(xii) that this agreement and any consequential breach of a provision shall act as a full bar to any action or proceeding by you as against us, our director/s and/or employee/s and/or body corporate for the premises.
8. Contractors (other than Settlement Agents and Employees)
(a) As a contractor or someone undertaking work on our premises (other than in respect of settlement agents or employees), you hereby agree and acknowledge:
(i) that you hold and have maintained, as current, public liability, personal injury and death insurances prior to attending our office and undertaking any works of whatsoever nature;
(ii) that you will hold such public liability, personal injury and death insurances for a period of at least 10 years following completion of any works at our premises;
(iii) that you have relevant trade experience, knowledge, the requisite qualifications and license for the works that you are undertaking at our premises;
(iv) that clause 7(a) shall apply to any good and/or services you have provided us;
(v) that the work you have, or will, complete will be to industry standard and fit for intended use;
(vi) that have the authority to sign and accept this document on behalf of your employer or the third party in which you may be engaged;
(vii) that you will indemnify and hold us harmless, both personally and for any third party, from any claim, action, proceeding, demand, suit, loss, expense (including legal costs on a solicitor own client basis), damage or otherwise incurred as a result of your negligence, or failure to comply with your obligations under this agreement;
(viii) that we do not hold public liability insurance, personal injury and/or death insurances and that by entering our premises, you hereby do so at your sole risk. We further do not warrant or guarantee under any circumstance that our premises are free from risk.
(ix) that this agreement and any consequential breach of a provision shall act as a full bar to any action or proceeding by you as against us, our director/s and/or employee/s and/or body corporate for the premises.
9. Settlement Agents
(a) As a settlement agent undertaking works for us, you hereby agree to:
(i) protect our Proprietary Information and any cheques, moneys, documents or things given to you including keeping it/them in a safe place until it/they is/are delivered to its/their intended recipient; and
(ii) you must not at any time, or for any reason, lose or allow anyone access to our Proprietary Information and any cheques, moneys, documents or things given to you, unless access is strictly in accordance with our instruction; and
(iii) you agree now and into the future to indemnify and hold us harmless from any claim, action, proceeding, demand, suit, loss, expense (including legal costs on a solicitor own client basis), damage or otherwise incurred as a result of your negligence, or failure to comply with your obligations under this clause; and
(iv) if you are an employee or contractor of a third-party that you have the consent of that third-party to enter into this agreement on its/their behalf.
10. Employees and/or Interns
(a) If you are one of our employees or interns, you hereby agree as follows:
(i) that despite anything to the contrary herein contained, this agreement does not, and is not intended to, supersede your employment/intern agreement with us and is to be read in conjunction with any such agreement; and
(ii) that you must sign in each time you visit and leave our office, including at the commencement of any applicable shift, at the commencement of any entitled break, conclusion of any entitled break and when you leave work;
(iii) that in the event that you fail to sign in or out as required, you agree to email us as soon as you are reasonably aware of the hours of your attendance at our offices;
(iv) that if you fail to sign out and your hours of attendance appear longer than usual, this will be deemed human error and there shall be no entitlements or rights accrued by such human error, refusal, failure or neglect;
(v) that as a lawful direction hereby given in writing, you are not to attend our premises for longer than required in accordance with any agreement between you and us;
(vi) that any over-time reflected using our sign in feature, registration process or sign in software does not equate to a right to additional pay and where you have, or believe you have, undertaken excessive hours then on the Thursday of each week by no later than 12:00 PM you will email us setting out your actual hours;
(vii) that where you have not attended enough hours in accordance with any agreement between us and we pay you in excess of your actual entitlement(s), we reserve all rights to recover over-payment in the event of later dispute for any reason whatsoever or to correspondingly reduce any accrued entitlement by the overpayment upon us becoming aware.
11. Destruction of Records and Digital Records and Collection of Documents
(a) In the event you have or otherwise become a client, you hereby agree and consent to us (in our absolute discretion):
(i) destroying any hard-copy file and all records (whether original or not) and choosing to keep a digital copy of same as required by law; and/or
(ii) destroying your file and all records (whether original or not) after seven (7) years; and/or
(iii) retaining your file and all records (whether original or not) in any manner or format in which we may decide is appropriate and proper having regard to the law and our duty.
(b) In the event that you specify that you are collecting documents in this sign in feature, registration process or sign in software you hereby agree that you have received those documents so specified by you and your signature herein will be deemed confirmation and a full discharge of any obligation that we may have had to you or anyone else in respect of those documents.
12. Surveillance
(a) You hereby agree that we may use surveillance technology to record you, including your voice or image. The use of such technology in our offices may collect personal information on you, may record you or otherwise store sensitive information for the protection of our legitimate interest. You consent to the use and storage of same.
13. Email Consent
You hereby consent to us forwarding to you notices, invoices/itemised bills or accounts and other important information or copies of documents by email transmission, which will be deemed to have been received by you at the time of us transmitting the communication by such means.
14. Warranties and Guarantees
(a) At no material time do we warrant that the sign in feature and/or registration process and/or sign in software is free from any virus or anything that may damage your computer or property. In using it, you hereby agree to hold us harmless and/or release us from any loss, damage, claim expense, or otherwise that may arise.
15. Severance
(a) If any part or provision contained in this agreement is found void or unenforceable for any reason, then that part or provision insofar as the illegality or unenforceable part will be deemed severed without affecting the enforceability of any other part or provision.
16. Jurisdiction
(a) You hereby irrevocably agree to be bound by the laws of Queensland, Australia and submit to that exclusive jurisdiction.
17. Indemnity
(a) By using our sign in feature, registration process or sign in software you hereby indemnify us from and against any claim or proceedings, whether threatened or instituted and any liability, loss, damage or otherwise (including legal costs on an indemnity basis) that we incur or may suffer as a result of:
(i) you breaching this agreement;
(ii) you breaching a law, legislation, regulation, by-law or otherwise in Australia that affects us or our relationship;
(iii) you or a third party brining an action as a result of an act or, omission by you;
18. Assignment
(a) This agreement is personal to you, is non-assignable by you, is governed by the internal laws of the State of Queensland and may be modified or waived only in writing signed by both parties.