Costs Agreement & Terms of Engagement

1. Interpretation

In this document:

“Australian Consumer Law” means the Australian Consumer Law set out in Schedule 2 to the Competition and Consumer Act 2010 (Cth).
“Claim” means any claim, liability or loss connected with these Terms.
“Confidential Information” means any information relating to a party or its business, affairs, clients, or services that is not publicly available, including information disclosed in connection with the legal services, whether disclosed orally, in writing, electronically, or in any other form. Confidential Information does not include information that is (a) is or becomes publicly available other than through a breach of these Terms; (b) is independently developed without use of the Confidential Information; or (c) is required to be disclosed by law or a regulatory authority.
“Legal Output” means the legal advice and documents we create for you.
“Legal Services Summary” means the legal services summary, quote, estimate or proposal we gave you for the relevant legal services.
“Membership” means the membership tier for legal services that you have selected, as set out in your Legal Services Summary or as otherwise agreed with you.
“Membership Fee” means the monthly membership fee set out in your Legal Services Summary.
“Membership Services” means the services included in your membership, as set out in your Legal Services Summary.
“Membership Start Date” is the date set out in your Legal Services Summary.
“Membership Term” is the term set out in your Legal Services Summary.
“Professional Standards Legislation" means the Professional Standards Act 1994 (NSW) and corresponding laws in other Australian jurisdictions that allow approved professional standards schemes to limit the civil liability of participating members.
“Related Entity” means a related company or entity, including a related body corporate under the Corporations Act 2001 (Cth).
“Scope of Work” means the scope of legal services we agree to provide, as set out in your Legal Services Summary.
“Terms” means this Costs Agreement & Terms of Engagement.

2. Our Agreement with You

You have engaged us, mySMB Legal Pty Ltd (ACN 687 496 886), to provide legal services to you, the individual or entity set out in our Legal Services Summary ("you" or "your"). In these Terms, "we", "us" and "our" means mySMB Legal Pty Ltd (ACN 687 496 886). These Terms and the Legal Services Summary, form our agreement with you.

If you engage us to incorporate new businesses for you:

you do so on behalf of those businesses;
those businesses will be our clients; and
you personally guarantee payment of all fees and costs.

References to “you” and “your” include both you personally and those businesses.

3. Acceptance

You accept these Terms when you:
make a payment or set up direct debit;
accept the Terms electronically or in writing;
ask us to start work, or continue to instruct us.

4. Memberships – How they Work

Membership Term and Renewal

Your Membership starts on the Membership Start Date and runs for the Membership Term.
At the end of the Membership Term, your Membership automatically renews for the same period (a “Renewal Term”) unless you cancel before it ends.

Cancelling your membership

Before the end of the initial Membership Term: you must give written notice to us before it ends.
During a Renewal Term: you can cancel at any time by giving us three months’ written notice.

Membership fees

Your Membership Fee:

• is charged monthly in arrears;

• is direct debited from your nominated account or card.

5. Membership Services – What’s included

Inclusions

Your Legal Services Summary sets out what is included and excluded from your Membership Services. Membership Services do not include:

document formatting to meet branding requirements;
work that is not “business as usual” (meaning work that is not commercial legal work, or involves complex, unusual or specialist work including litigation, disputes or novel legal issues).

You must use Membership Services fairly and only for the business named in your Legal Services Summary, unless we agree otherwise in writing.

Changes to services or fees

If we make significant changes to services or fees, we will give at least 30 days’ written notice. If you do not agree to a change:

you must tell us in writing before it takes effect;
we will try to resolve your concerns in good faith;
if we cannot agree within 30 days, you may terminate the Membership by giving us notice in writing.

If you terminate for this reason, you only pay fees and expenses incurred up to termination.

6. Eligibility for Membership Services

Your Membership and Membership Fees are based on the information you give us. If:

the information was incorrect; or
your business activities materially change,

we may increase your Membership Fees or change your Membership Services. If you do not agree, we may terminate your Membership. If we terminate under this clause 6, you only pay fees and expenses incurred up to termination.

7. Payment Methods

We may charge for legal services:

under a Membership, or
on a fixed fee basis.

Payment terms are set out in your Legal Services Summary or as otherwise agreed. If you do not pay an amount within 30 days of the due date, or if an automatic direct debit fails and is not rectified within 30 days of the payment processing date, we may:

suspend services;
record a default with a credit reporting agency;
take legal action to recover the amount, plus interest and costs.

8. Expenses and Disbursements

You agree to pay reasonable expenses and disbursements we incur, including:

identity verification and customer due diligence costs;
ASIC search fees for companies;
the costs of repeating checks due to your non-cooperation.

Where possible, we will tell you about significant disbursements in advance.

9. Additional Services

If you ask for work outside your Membership, we may:

offer an upgraded Membership; or
provide a separate fixed fee quote.

10. Billing Arrangements and Invoices

For non Membership work, we will invoice:

when work is completed; or
monthly for ongoing matters.

Invoices:

are sent electronically;
must be paid within the time stated (at least 7 days from invoice date).

We may charge interest on overdue amounts at 2% above the RBA cash rate and recover reasonable recovery costs.

Direct debits are processed in accordance with your direct debit agreement for automatic payment processing via Stripe or any other designated payment processor.

11. Your Rights about Legal Costs

Under the Legal Profession Uniform Law (NSW), you have the right to:

seek independent legal advice before agreeing to any proposed costs agreement;
negotiate this agreement;
request a lump sum or itemised bill;
receive progress reports on costs.

Nothing in these Terms limits your rights under Australian Consumer Law.

12. Disputes About Costs

If you dispute our costs:

raise it with us in writing first;
we will respond within 14 days.

If unresolved, you may pursue the options available under the Legal Profession Uniform Law (NSW), including costs assessment or complaint processes.

13. Confidentiality

We will keep your Confidential Information confidential, except where appropriate for the conduct of your matter, where disclosure is permitted or required by law, or where you consent.

You will keep our Confidential Information (including these Terms) confidential unless required by law or we agree otherwise.

14. Copyright, Retention and Copying of Your Documents

We own the copyright in all Legal Output. We licence you to use the Legal Output for your own business purposes. You must not:

sell or share the Legal Output;
use the Legal Output to provide legal services to others.

You grant us a non-exclusive, perpetual, sublicensable and royalty-free licence to use any documentation you provide to us:

for our internal business purposes;
for the purpose of providing legal services to you; and
for our internal record-keeping and professional compliance purposes.

We may keep your documents for 7 years after we have stopped providing legal services to you, after which they may be destroyed.

15. Our Responsibility

Unless otherwise stated in these Terms:

if you have engaged us solely to draft legal documents based on your specific instructions, we are not engaged to and will not provide strategic legal advice about whether those documents are appropriate for your circumstances, unless you have also specifically engaged us to provide such advice;
we will not independently verify the accuracy of information and documents you provide to us;
we are not responsible for informing you of changes in law after we have provided the agreed legal services;
our legal services are only meant for you in the context of your instructions to us. We are not responsible for any other use of our legal services. You must not give our work to anyone else, unless we agree first;
we are lawyers qualified to practice in New South Wales and you should only rely on us for legal advice in the context of our agreed Scope of Work and in relation to New South Wales law; and
we are not responsible for any changes that you make to our advice or documents, or your failure to follow our advice.

16. Your Obligations

You confirm that:

you are authorised to instruct us on behalf of any business, company, partnership, trust or other entity that you say that you represent;
the information you provide to us is true, accurate and complete; and
you are responsible for obtaining, at your cost, any consents, licences and permissions from other parties necessary for the relevant legal services to be provided, and for providing us with copies of all such necessary consents, licences and permissions in a timely manner.

17. Exclusions

Nothing in these Terms is intended or operates to limit or exclude your rights and remedies, or our obligations and liabilities, under the Australian Consumer Law. Our liability is limited by a scheme approved under Professional Standards Legislation.

We may refuse to provide legal services to you if we reasonably believe that:

we do not have the right expertise or jurisdictional qualifications;
the matter creates a real or potential legal or commercial conflict of interest;
we are not professionally, ethically or lawfully able to assist you.

Neither of us will be responsible to the other for indirect or consequential losses. This includes things like loss of profit, revenue, business, goodwill, opportunity, reputation, savings, data, or use of data. This does not affect your obligation to pay any fees owed to us under these Terms.

A party’s liability to the other party in connection with these Terms will be reduced to the extent the loss was caused or contributed to by the other party (or their personnel), including where they failed to take reasonable steps to mitigate the loss, or by events outside the liable party’s reasonable control.

Except where liability is limited by Professional Standards Legislation, the maximum total liability of either party under these Terms is limited to the fees you paid or are required to pay us in the 12 months before the event giving rise to the claim.

You acknowledge and agree that we are business lawyers in Australia. The scope of our legal services is set out in our Legal Services Summary. We do not provide legal advice on the law of other countries or in any legal areas outside of the areas set out in our Legal Services Summary. However, we may work with qualified third parties to provide you with access to foreign legal assistance where required. To the extent we offer guidance on legislation, contractual documentation or other matters that are subject to or governed by a legal jurisdiction outside of Australia, such guidance is of a high level and commercial nature only, is not legal advice, and you should obtain independent legal advice from lawyers qualified in the relevant jurisdiction before relying on such guidance.

Where you have engaged us to conduct a written contract review:

our review is not intended to address all legal and commercial risks associated with your contract;
our review is not a substitute for you reading and understanding the contract in full; and
the scope of our review is strictly limited to identifying those items that we, in our professional judgment, consider to be key legal risks associated with your contract, and we make no representation that all risks have been identified or that the risks identified are the only risks that may affect you.

This clause 17 will survive the expiry or termination of these Terms.

18. Related Entity Claims

Use of our legal services

Our legal services are provided only for your benefit. No other person or business may use or rely on them unless we agree in writing first. If you want someone else to access or rely on our legal services, you must tell us in writing and get our written consent. You must also make sure that person understands and agrees to the limits and exclusions in these Terms.

Related Entities

We may agree in writing to provide legal services to a Related Entity of yours. If we do, and that related entity is not a party to these Terms, you agree that:

we are only responsible to the Related Entity if we have agreed in writing to act for it;
any claim relating to our legal services must be brought by you, not the Related Entity;
any loss suffered by the Related Entity will be treated as your loss under these Terms;
we will not be liable more than once for the same issue, and our total liability to you and all Related Entities together is capped as set out in these Terms; and
you are responsible for any loss, cost, or expense we suffer if a Related Entity uses or relies on our legal services without permission, brings a duplicate claim, or seeks more than we would have been liable to pay if you had brought the claim yourself.

This clause 18 will survive the expiry or termination of these Terms.

19. Third Party Advice and Services

If we engage or refer third parties:

we are not responsible for their advice or fees;
you may refuse any referral.

We may provide or receive referral commissions.

20. Termination

Termination for Cause

We may cease to act for you, cancel your Membership or refuse to provide you with further legal services if:

you materially breach these Terms or the law; or
we consider (acting reasonably) that our relationship has broken down and this is either incapable of remedy or has not been remedied within 14 days of us providing notice to you.

You may terminate these Terms for cause, if we materially breach these Terms and the breach is either incapable of remedy or has not been remedied within 14 days of you notifying us of the breach.

If we terminate these Terms for cause, then you remain liable for the following amounts (which are debts immediately due and payable to us):

any disbursements and expenses we have incurred on your behalf;
the remainder of the Membership Fees for the remainder of that Membership Term (including unpaid Membership Fees already invoiced).

If you terminate these Terms for cause, you will only be required to pay our professional fees, disbursements and expenses in providing the legal services to you up to the date of termination.

Termination for Convenience

You may otherwise terminate these Terms by providing written notice to us. For Membership Services within the initial Membership Term, the termination will take effect on the last day of the initial Membership Term. For Membership Services during a Renewal Period, the termination will take effect on the date that is 3 months following the date you have provided notice.

If you terminate for convenience, then you remain liable for the following amounts (which are debts immediately due and payable to us):

any disbursements and expenses we have incurred on your behalf;
the remainder of the Membership Fees for the remainder of that Membership Term (including unpaid Membership Fees already invoiced).

Consequences of Termination

Subject to these Terms and your rights as a “consumer” under the Australian Consumer Law (if any), our professional fees are non-refundable.

You agree that the amounts payable under this clause 20 are a fair estimate of the loss we suffer if your Membership ends early. This is because we provide subscription legal services based on your commitment for the full Membership Term, including maintaining the staff and expertise needed to support you on an on demand basis.

21. AML Compliance

We have obligations under the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth) (“AML Act”). In order to comply with the AML Act, we may need to conduct customer due diligence (“CDD”) on you. We may use a third-party provider to assist in our compliance with the AML Act and completing CDD. If you do not cooperate, we may refuse to act for you.

22. Privacy

We are committed to protecting your personal information in accordance with our legal obligations and our Privacy Policy which is available here: www.mysmb.com/privacy.

23. Non-Solicitation

You must not encourage our staff or contractors to leave us:

during your engagement, and
for 12 months after it ends.

24. GST

Where applicable, GST is payable on our fees and expenses and will be clearly shown on our tax invoices issued in accordance with the A New Tax System (Goods and Services Tax) Act 1999 (Cth). You agree to pay us the GST.

25. Assignment

You can’t assign or transfer any of your rights or obligations under these Terms without our consent, which we won’t unreasonably withhold. We can assign or transfer our rights and obligations under these Terms, without your consent to:

one of our Related Entities; or
someone who buys all or most of our business.

If we do assign or transfer our rights and obligations under these Terms:

your rights (including under Australian Consumer Law) stay the same;
your obligations won’t increase;
the new provider will be legally allowed and properly qualified to provide the legal services.

We will notify you in writing of any transfer or assignment.

26. Severance

If any provision (or part of it) of these Terms is held to be unenforceable, invalid or unlawful in any jurisdiction, then the provision (or relevant part) must be:

to the extent possible, read down and construed so as to avoid the unenforceability, invalidity or illegality; or
severed from these Terms,

and the remaining provisions (and remaining part of the provision) of these Terms will remain valid and enforceable and will continue in full force and effect.

27. Jurisdiction & Governing Law

These Terms are governed by and construed in accordance with the laws of New South Wales, Australia. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts of New South Wales.