Security Services Agreement

Terms of Business

Unless otherwise agreed to in writing between Holland Thomas and Associates Pty Ltd (Holland Thomas) and the Client (meaning a person, company or other legal entity receiving services from Holland Thomas), the following Terms of Business apply to security consulting services provided by Holland Thomas.


This is version 2.3, effective 1 January 2013.



1.1          Definitions

The following definitions apply in this document.

Affiliate means, for a body corporate, each related body corporate of that body corporate.

Business Day means a day that is not a Saturday, Sunday or public holiday in Melbourne, Australia.

Claim means a claim, action, proceeding or demand made against the person concerned, however it arises and whether it is present or future, fixed or unascertained, actual or contingent.

Commencement Date means the date of this document.

Confidential Information means any information disclosed by the Client or by any Affiliate of the Client to Holland Thomas before or after the date of this document or any information developed by Holland Thomas in the course of performing the Services, but excludes information that:

(a)          was in the public domain at the date of this document;

(b)          became part of the public domain after the date of this document otherwise than as a result of disclosure by Holland Thomas in breach of this agreement;

(c )          is received in good faith by Holland Thomas from a third party who, on reasonable enquiry by Holland Thomas claims to have no obligations of confidence to the Client in respect of it and who imposes no obligations of confidence upon Holland Thomas; or

(d)          was in Holland Thomas’s possession at the time of disclosure by the Client to Holland Thomas.

Corporations Act means the Corporations Act 2001 (Cth).

Force Majeure Event means any occurrence or omission as a direct or indirect result of which the party relying on it is prevented from or delayed in performing any of its obligations (other than a payment obligation) under this document and that is beyond the reasonable control of that party, including the failure of any third party in connection with the provision of the Services, acts of God, war or military operations of any character, forces of nature, industrial action and action or inaction by a Government Agency.

Government Agency means:

(a)          a government or government department or other body;

(b)          a governmental, semi‑governmental or judicial person; or

(c )          a person (whether autonomous or not) who is charged with the administration of a law.

GST means:

(a)          the same as in the GST Law;

(b)          any other goods and services tax, or any Tax applying to this transaction in a similar way; and

(c )          any additional tax, penalty tax, fine, interest or other charge under a law for such a Tax.

GST Law means the same as “GST law” means in A New Tax System (Goods and Services Tax) Act 1999 (Cth).

Insolvency Event means, for a person, being in liquidation or provisional liquidation or under administration, having a controller (as defined in the Corporations Act) or analogous person appointed to it or any of its property, being taken under section 459F(1) of the Corporations Act to have failed to comply with a statutory demand, being unable to pay its debts or otherwise insolvent, dying, ceasing to be of full legal capacity or otherwise becoming incapable of managing its own affairs for any reason, taking any step that could result in the person becoming an insolvent under administration (as defined in section 9 of the Corporations Act), entering into a compromise or arrangement with, or assignment for the benefit of, any of its members or creditors, or any analogous event.

Liability means a duty, liability or obligation affecting the person concerned, however it arises and whether it is present or future, fixed or unascertained, actual or contingent.

Loss means a damage, loss, cost, expense or liability incurred by the person concerned, however it arises and whether it is present or future, fixed or unascertained, actual or contingent.

Personnel means the officers, employees, agents and sub‑contractors of Holland Thomas.

Services means the services described in Schedule 1.

Tax means a tax, levy, duty, charge, deduction or withholding, however it is described, that is imposed by law or by a Government Agency, together with any related interest, penalty, fine or other charge, other than one that is imposed on net income in any jurisdiction.

Tax Act means the Income Tax Assessment Act 1936 (Cth) and the Income Tax Assessment Act 1997 (Cth), jointly, as applicable.

Term means the period specified in clause 2.2.

1.2         Rules for interpreting this document

Headings are for convenience only, and do not affect interpretation.  The following rules also apply in interpreting this document, except where the context makes it clear that a rule is not intended to apply.

(a)          A reference to:

(i)            legislation (including subordinate legislation) is to that legislation as amended, re‑enacted or replaced, and includes any subordinate legislation issued under it;

(ii)           a document or agreement, or a provision of a document or agreement, is to that document, agreement or provision as amended, supplemented, replaced or novated;

(iii)          a party to this document or to any other document or agreement includes a permitted substitute or a permitted assign of that party;

(iv)         a person includes any type of entity or body of persons, whether or not it is incorporated or has a separate legal identity, and any executor, administrator or successor in law of the person; and

(v)          anything (including a right, obligation or concept) includes each part of it.

(b)          A singular word includes the plural, and vice versa.

(c )          A word which suggests one gender includes the other genders.

(d)          If a word is defined, another part of speech has a corresponding meaning.

(e)          If an example is given of anything (including a right, obligation or concept), such as by saying it includes something else, the example does not limit the scope of that thing.

(f)           The word agreement includes an undertaking or other binding arrangement or understanding, whether or not in writing.

(g)          The words subsidiary, holding company, related body corporate and substantial holding have the same meanings as in the Corporations Act.

(h)          Words defined in the GST Law have the same meaning in clauses 1.2(i), 7 and 16.7.

(i)            References to GST extend to any notional liability of any person for GST and to any amount which is treated as GST under the GST Law, and references to an input tax credit extend to any notional input tax credit to which any person is entitled.


2.1         Holland Thomas to provide the services

Holland Thomas must provide or procure the provision of the Services continuously during the Term. The Services will be provided by Holland Thomas on an ad hoc basis as requested by the Client from time to time subject to mutually agreeable dates and times.

2.2         Term

The rights and obligations under this document commence on the Commencement Date, and continue until the date of termination of this agreement in any way, including in accordance with clause 10.

2.3         Performance by Client group

The Client must ensure that any of its employees, agents and contractors, and any of its related bodies corporate and their employees, agents and contractors, which perform obligations imposed on the Client by this document, do so strictly in accordance with this document.


3.1         Place, time, manner and availability

Consistently with its obligations under this document, Holland Thomas:

(a)          may decide the manner, place and timing of provision of the Services; and

(b)          does not warrant that Holland Thomas can attend the Client’s premises or provide the Services at specific times requested by the Client.

3.2          Personnel

Holland Thomas may use such of its Personnel (who may include an Affiliate of Holland Thomas) as it thinks fit to provide the Services, either full‑time or in addition to providing services for Holland Thomas or other persons.

3.3          Access

The Client must, where Holland Thomas thinks it appropriate in order to provide the Services, ensure that Holland Thomas has full and safe access to the Client’s premises and to all equipment, materials, information and facilities reasonably required to enable provision of the Services, including but not limited to, internet access, secure communications equipment, secretarial services, and vehicles.

3.4          Documents

The Client must ensure the accuracy of any documents or other materials or information provided to Holland Thomas. Where Holland Thomas is required to store any such documents or materials supplied to it by the Client, the Client will be liable for all related costs and expenses (including without limitation storage and insurance). Holland Thomas shall have no liability for any accidental loss or damage howsoever caused to any documents or materials provided by the Client.

3.5          Standard of performance

Holland Thomas must endeavour to provide the Services:

(a)          in compliance with every applicable law;

(b)          utilising the utmost due diligence in the handling of the matter including providing detailed reports and itemised invoices for all work performed; and

(c )          to the same standard to which equivalent services are normally performed for Holland Thomas.

3.6         Additional services

The Client may request Holland Thomas to provide additional services.  Any additional services provided by Holland Thomas in response to such a request are taken to be part of the Services, and the Client must pay for those additional services in accordance with Schedule 2, unless otherwise agreed in writing.

3.7         Non Guarantee

Holland Thomas does not guarantee that the results delivered through the Services, including surveillance and background investigations, will fulfill the exact requirements of the Client.


4.1          Independent contractor

Holland Thomas is engaged as an independent contractor.  Nothing in this agreement constitutes Holland Thomas an employee, agent, partner or joint‑venturer of the Client.

4.2          Authority to incur obligations

Neither party has the authority to incur any obligation on behalf of the other party and neither party may incur any such obligation except on the express written instruction of the other party.


5.1          Charges

The Client must pay for the Services in accordance with Schedule 2.

5.2          Invoicing

Holland Thomas may issue invoices to the Client for the Services in accordance with Schedule 2.

5.3          Gross Up For Tax (Except GST)

Amounts payable by Holland Thomas will be grossed up as appropriate, or additional amounts paid by the Client, to ensure that Holland Thomas is fully indemnified in respect of any Tax (other than an amount of GST for which Holland Thomas is indemnified under clause 7 of this document) payable in relation to the Services, materials supplied or amounts payable by the Client.

5.4          Payment

Subject to clause 5.4 concerning reasonable disputes, the Client must pay Holland Thomas within ten (10) Business Days after receipt of an invoice issued in accordance with Schedule 2.

5.5          Disputed Invoices

If the Client reasonably disputes the whole or any part of the amount claimed in an invoice submitted by Holland Thomas on the ground that it is for work not performed in accordance with this document, the Client:

(a)          must pay the undisputed part of the amount claimed in the invoice;

(b)          must within five (5) Business Days of receipt of the invoice notify Holland Thomas of why the rest of the invoice is disputed; and

(c )          if it is resolved that some or all of the disputed amount should have been paid when it was invoiced, must pay the amount resolved plus interest on that amount in accordance with clause 6.


6.1         The Client must pay interest

The Client must pay interest from (and including) the day on which it falls due to (but excluding) the day on which it is paid in full, at the rate of 12% per annum, on each amount that is twenty (20) business days or more past due.

6.2         Accrual and calculation of interest

Interest under this clause:

(a)          accrues daily; and

(b)          is calculated on the basis of the actual number of days on which interest has accrued and of a 365 day year.

7.  GST

7.1         GST payable

In addition to paying the amounts invoiced, the Client must:

(a)          pay to Holland Thomas an amount equal to any GST for which Holland Thomas is liable on any supply by Holland Thomas under or in connection with this document, without deduction or set‑off of any other amount;

(b)          make that payment:

(i)           if Holland Thomas becomes liable for GST on or after receiving the amounts invoiced or other consideration or any part of it ‑ as and when the Client must pay or provide the amounts invoiced or other consideration or that part of it;

(ii)          if Holland Thomas becomes liable for GST on issuing an invoice under this document ‑ on the earlier of the due date for payment of that invoice, or ten (10) Business Days from the end of the month in which Holland Thomas issued that invoice; and

(iii)         if Holland Thomas becomes liable for GST upon the occurrence of some other event ‑ within ten (10) Business Days of a written request by Holland Thomas for payment for the GST, which may be in the form of a tax invoice (or an adjustment note).

(c )          indemnify Holland Thomas against, and pay Holland Thomas on demand the amount of:

(i)           all GST for which Holland Thomas is liable in connection with the transaction contemplated by this document; and

(ii)          any loss, liability or expense directly or indirectly incurred in connection with or arising from or caused by any failure by the Client to pay any amount as and when required by this clause.

7.2         Invoice

Holland Thomas must issue a tax invoice (or an adjustment note) to the Client for any supply for which Holland Thomas may recover GST from the Client under this document, and must include in the tax invoice (or adjustment note) the particulars required by the GST Law.

7.3         Adjustments

Holland Thomas must promptly create an adjustment note for, or apply to the Commissioner for, a refund of, and refund to the Client any overpayment by the Buyer for GST, but Holland Thomas need not refund to the Client any amount for GST paid to the Commissioner of Taxation unless Holland Thomas is entitled to a refund or credit of that amount.


8.1          Background Investigations

The data provided in the final investigative report may be derived from third-party commercial databases and information aggregation services and will be specifically identified as provided by a third-party.  As a result, Holland Thomas cannot warrant the comprehensiveness, completeness, accuracy, or adequacy for any particular use or purpose of the information provided and expressly disclaims all warranties, express or implied, as to any matter whatsoever.  Holland Thomas will not be responsible for any loss or damage caused by the use of this data.

8.2          Disclaimer of implied warranties

Except for the express warranties set out in this agreement and except to the extent that applicable law provides otherwise, Holland Thomas disclaims all warranties.  To the maximum extent permitted by applicable law, all conditions and warranties that would be implied (by statute, general law, custom or otherwise) are expressly excluded.

Advice given and recommendations made do not constitute a warranty of future results by Holland Thomas nor an assurance against risk.  Recommendations are made based on information provided by the Client and other information available at the time of providing the recommendation.  No express or implied warranty is given in respect of any judgment made or to changes or any unforeseen escalation of any factors affecting any such judgment.

8.3          Implied warranties and conditions

If any condition or warranty is implied into this agreement under the Trade Practices Act  1974 (Cth) or under any equivalent legislation, and cannot be excluded, the liability of Holland Thomas for breach of the condition or warranty is limited to one or more of the following, at the option of Holland Thomas:

(a)          in the case of goods:

(i)            the replacement of the goods or the supply of equivalent goods;

(ii)           the repair of the goods;

(iii)          the payment of the cost of replacing the goods or of acquiring equivalent goods;  or

(iv)         the payment of the cost of having the goods repaired;  or

(b)          in the case of services:

(i)            the supplying of the services again;  or

(ii)           the payment of the cost of having the services supplied again.

8.4          No liability for consequential loss

Under no circumstances is Holland Thomas liable for any special, indirect, incidental, consequential or economic Loss (including loss of profits, revenue, savings, opportunity or goodwill), even if the possibility of such a Loss being suffered has been brought to the attention of Holland Thomas.

8.5          Release from and indemnity against Claims

To the extent permitted by law, the Client releases Holland Thomas from, and must indemnify Holland Thomas against, any Loss, Claim or Liability brought against, incurred or suffered by Holland Thomas arising directly or indirectly in connection with the provision of the Services by Holland Thomas except to the extent that the relevant Loss, Claim or Liability is caused by or contributed to by the negligence of Holland Thomas in providing the Services and in any event the entire liability of Holland Thomas under or in connection with this document shall not exceed 100% of the amount of Holland Thomas’s charges for the provision of the Services.


If any litigation arises from this case at no fault of Holland Thomas, the Client shall pay all fees (including the regularly hourly rate of the Personnel) and costs for any time involved in the litigation process.


10.1       Termination by agreement

This agreement may be terminated by the agreement in writing of the parties.

10.2       Termination by Holland Thomas

Holland Thomas may terminate this agreement immediately by written notice to the Client if:

(a)          The Client fails to cooperate with Holland Thomas in any reasonable request;

(b)          Holland Thomas continuing to act would be unethical or impractical; or

(c )          The Client breaches an obligation to pay money when due under this document and does not rectify that breach by paying the amount due, with interest accrued up to the date of payment if applicable, within ten (10) Business Days of receiving notice from Holland Thomas requiring payment.

10.3       Termination by the Client

The Client may terminate this agreement immediately by written notice to Holland Thomas if Holland Thomas breaches an obligation under this agreement in a significant respect and does not rectify that breach within ten (10) Business Days of receiving notice from the Client requiring rectification.

10.4       Termination by either Party

Either party may terminate this agreement:

(a)          immediately by written notice to the other party, if an Insolvency Event occurs in respect of that other party; or

(b)          if permitted by clause 14 ; or

(c )          by giving written notice of at least ten (10) Business Days to the other party, specifying the date of termination.

10.5       Claims, rights and obligations

Ending of the Term or termination of this document does not affect any Claim either party may have against the other in respect of anything done or required to be done before the end of the Term, or before termination.


11.1       Confidential Information

Subject to clause 11.4, Holland Thomas must not, and must take reasonable steps to ensure that the Personnel do not, without the Client’s permission or where necessary to perform the Services:

(a)          use any Confidential Information;

(b)          disclose any Confidential Information to anyone else; or

(c )          make copies of materials incorporating any Confidential Information.

11.2       Reports

Reports and their subject matter are for the benefit of the Client only and may not be disclosed to any third parties without the prior written consent of Holland Thomas (such consent not to be unreasonably withheld) and at all times disclosure to third parties shall be subject to the instructions of Holland Thomas.

11.3       Terms of this document

Subject to clause 11.4 and 17.2, neither party may, without the consent of the other party, disclose the terms of this document to any other person.

11.4       Exceptions

A party may disclose or use information, which it would otherwise be prevented from disclosing or using under clauses 11.1, 11.2, or 11.3, where required to do so by law or by the rules of a stock exchange but, as far as practicable, must notify the other party in advance of its intention to do so and take such steps as the other party reasonably requires to protect the confidentiality of the information.


The copyright and any other intellectual property rights whether registered or unregistered (including but not limited to design rights, trade marks, patents, database rights, confidential information and know how) in:

(a)          any documents or other materials and any data or other information provided by the Client relating to the Services shall belong to the Client;

(b)          any documents or other materials and any data or other information provided by Holland Thomas relating to the Services shall, unless otherwise agreed in writing between the Client and Holland Thomas, belong to Holland Thomas, but the Client shall be entitled to use such documents or information for the purposes of utilising the Services by way of a non-exclusive licence, subject to payment in full of all sums payable under this document.


During the Term and for 6 months after the end of the Term, the Client must not, without Holland Thomas’s consent, solicit for employment, either directly or indirectly, any person who is employed or contracted by Holland Thomas.


14.1       Notice and suspension of obligations

If a party to this document is affected, or likely to be affected, by a Force Majeure Event:

(a)          that party must immediately give the other party prompt notice of that fact including:

(i)            full particulars of the Force Majeure Event;

(ii)           an estimate of its likely duration;

(iii)          the obligations affected by it and the extent of its effect on those obligations; and

(iv)         the steps taken to rectify it; and

(b)          the obligations under this document of the party giving the notice are suspended to the extent to which they are affected by the relevant Force Majeure Event as long as the Force Majeure Event continues.

14.2       Effort to overcome

A party claiming a Force Majeure Event must use its best endeavours to remove, overcome or minimise the effects of that Force Majeure Event as quickly as possible.  However, this does not require a party to settle any industrial dispute in any way it does not want to.

14.3       Alternative supply

During any period in which a party to this document is not performing obligations because of a claimed Force Majeure Event, the other party may (but need not) make alternative arrangements for the performance, whether by another person or otherwise, of any obligation which the party claiming the Force Majeure Event is not performing without incurring any liability to that party.

14.4       Termination

If a Force Majeure Event continues for more than sixty (60) Business Days either party may terminate this document by giving notice of at least twenty (20) Business Days to the other party.


Although Holland Thomas has an email address and although matters may be discussed on mobile telephones, neither medium should be considered private or confidential. Both parties should be discreet in discussing private matters in emails or by mobile telephone.


A notice, consent or other communication under this document is only effective if it is in writing, signed and either left at the addressee’s address or sent to the addressee by mail or fax.  If it is sent by mail, it is taken to have been received five (5) Business Days after it is posted.  If it is sent by fax, it is taken to have been received when the addressee actually receives it in full and in legible form.


17.1       Amendment

This document can only be amended, supplemented, replaced or novated by another document signed by the parties.

17.2       Assignment

(a)          The Client may only dispose of, declare a trust over or otherwise create an interest in its rights under this document with the prior written consent of Holland Thomas.

(b)          Holland Thomas may dispose of, declare a trust over or otherwise create an interest in its rights under this document without the consent of the Client, and may disclose to any potential holder of the right or interest any information relating to this document or any party to it.


18.1       Governing law

(a)          This document is governed by the law in force in Victoria, Australia.

(b)          Each party submits to the non‑exclusive jurisdiction of the courts exercising jurisdiction in Victoria, Australia, and any court that may hear appeals from any of those courts, for any proceedings in connection with this document, and waives any right it might have to claim that those courts are an inconvenient forum.

18.2       Liability for expenses

Each party must pay its own expenses incurred in negotiating, executing, stamping and registering this document.

18.3       Giving effect to this document

Each party must do anything (including execute any document), and must ensure that its employees and agents do anything (including execute any document), that the other party may reasonably require to give full effect to this document.

18.4       Waiver of rights

A right may only be waived in writing, signed by the party giving the waiver, and:

(a)          no other conduct of a party (including a failure to exercise, or delay in exercising, the right) operates as a waiver of the right or otherwise prevents the exercise of the right;

(b)          a waiver of a right on one or more occasions does not operate as a waiver of that right if it arises again; and

(c )          the exercise of a right does not prevent any further exercise of that right or of any other right.

18.5       Operation of this document

(a)          This document contains the entire agreement between the parties about its subject matter.  Any previous understanding, agreement, representation or warranty relating to that subject matter is replaced by this document and has no further effect.

(b)          Any provision of this document which is unenforceable or partly unenforceable is, where possible, to be severed to the extent necessary to make this document enforceable, unless this would materially change the intended effect of this document.

18.6       Operation of indemnities

(a)          Each indemnity in this document survives the expiry or termination of this document.

(b)          A party may recover a payment under an indemnity in this document before it makes the payment in respect of which the indemnity is given.

18.7       GST on claims

(a)          If the Client is liable to pay GST on any supply by the Client to Holland Thomas under this document, Holland Thomas must pay to the Client an amount equal to that GST, and indemnify the Client against that GST, in exactly the same way as the Client must so do for any GST Holland Thomas is liable for, and clause 7 then applies to that GST as if Holland Thomas was the Client, and the Client was Holland Thomas.

(b)          If a party provides a payment for or any satisfaction of a claim or a right to claim under or in connection with this document (for example, for a breach of any warranty or for indemnity or for reimbursement of any expense) that gives rise to a liability to pay GST, the provider must pay, and indemnify the claimant on demand against the amount of that GST.

(c )          If a party has a claim under or in connection with this document for a cost on which that party must pay an amount for GST, the claim is for the cost plus the amount for GST (except any amount for GST for which that party is entitled to an input tax credit).

(d)          If a party has a claim under or in connection with this document whose amount depends on actual or estimated revenue or which is for a loss of revenue, revenue must be calculated without including any amount received or receivable as reimbursement for GST (whether that amount is separate or included as part of a larger amount).

18.8       Consents

Where this document contemplates that the party may agree or consent to something (however it is described), the party may:

(a)          agree or consent, or not agree or consent, in its absolute discretion; and

(b)          agree or consent subject to conditions,

unless this document expressly contemplates otherwise.

18.9       Attorneys

Each person who executes this document on behalf of a party under a power of attorney declares that he or she is not aware of any fact or circumstance that might affect his or her authority to do so under that power of attorney.

18.10    Counterparts

This document may be executed in counterparts.

18.11   Acknowledgement and Acceptance of these Terms of Business

By signing a Holland Thomas Security Services Agreement, or by making payment to Holland Thomas for services described therein, the Client acknowledges they have read and agree to be bound by the terms contained in Holland Thomas’ standard Security Services Agreement Terms of Business for security consulting services in conjunction with the terms contained in the Security Services Agreement.

Where terms in Holland Thomas’ standard Security Services Agreement Terms of Business differ to those in the Security Services Agreement, the terms in the Security Services Agreement will take precedence.