Independent Engineer Contractor shall cooperate with Independent Engineer in the conduct of his or her duties in relation to the Project and the Work, including the duties listed in Attachment CC. No review, approval or disapproval by Independent Engineer shall serve to reduce or limit the liability of Contractor to Owner under this Agreement.
Independent Expert The Parties and the other signatories may, upon written agreement, resort to an independent expert in order to obtain a well-grounded opinion that may lead to the settlement of the dispute or controversy. In case such agreement is signed, arbitration may only be filed after issuance of the expert’s opinion.
Independent Auditor If:
(a) the Provider is the Distributor and, acting reasonably, gives notice that the Records contain information about other industry participants that cannot reasonably be severed from the information relating to the Trader or that the information is commercially sensitive; or
(b) the provider is the Trader and, acting reasonably, gives notice that the Records contain information about other industry participants that cannot reasonably be severed from information relating to the Distributor or that the information is commercially sensitive, then the Distributor or the Trader, as appropriate, will permit an independent auditor (the “Auditor”) appointed by the other party to review the Records and the other party will not itself directly review any of the Records. The Distributor or the Trader, as appropriate, will not unreasonably object to the Auditor appointed by the other party. In the event that the Distributor or the Trader, as appropriate, reasonably objects to the identity of the Auditor, the parties will request the President of the New Zealand Law Society (or a nominee) to appoint a person to act as the Auditor. The party that is permitted by this clause 31.5 to appoint an Auditor will pay the Auditor’s costs, unless the Auditor discovers a material inaccuracy in the Records in which case the other party will pay the Auditor’s costs. The terms of appointment of the Auditor will require the Auditor to keep the Records confidential.
Independent Accountant Xxxxxxxx LLP (the “Accountant”), which has expressed its opinions with respect to the audited financial statements (which term as used in this Agreement includes the related notes thereto) of the Company filed with the Commission as a part of the Registration Statement and included in the Disclosure Package and the Prospectus, is an independent registered public accounting firm as required by the Securities Act and the Exchange Act.
Independent Auditors The Company shall, until at least the Termination Date, maintain as its independent auditors an accounting firm authorized to practice before the SEC.
Expert Subject to Clause 16.1, where any matter may be referred to an expert pursuant to Clause 11.2 or is required by this Agreement to be referred to an expert then except as otherwise provided for in this Agreement, the matter must be referred for determination by a person:
(a) who is appointed by the Parties, or in default of such appointment within ten (10) Business Days after either Party giving notice in writing to the other Party requiring the appointment of an expert then that person is to be nominated at either Party’s request by:
(i) if the Parties agree that the Dispute is of a financial nature, the President for the time being of CPA Australia;
(ii) if the Parties agree that the Dispute is of a non-financial nature, the President for the time being of the Engineers Australia – Queensland Division; and
(iii) in any other case, by the President for the time being of the Queensland Law Society Incorporated;
(b) who has appropriate qualifications and practical experience having regard to the nature of the Dispute;
(c) who has no interest or duty which conflicts or may conflict with his function as expert, he being required to fully disclose any such interest or duty by written notice to the Parties before his appointment;
(d) who is not an employee of the End User, any Operator or Aurizon Network or of a Related Body Corporate of any of them;
(e) who shall not be permitted to act until he has given written notice to both Parties that he is willing and able to accept the appointment;
(f) who shall have regard to the provisions of this Agreement and consider all submissions (including oral submissions by either Party provided that such oral submissions are made in the presence of the other Party), supporting documentation, information and data with respect to the matter submitted by the Parties or submitted by the Parties as soon as reasonably practicable at his request and who must provide both Parties with a copy of his determination in the form of a report within a reasonable time after his appointment;
(g) who shall be required to undertake to keep confidential all matters coming to his knowledge by reason of his appointment and performance of his duties;
(h) who shall be deemed to be and shall act as an expert and not an arbitrator and the law relating to arbitration (including, without limitation, the Commercial Arbitration Act 1990 (Qld)) shall not apply to him or his determination or the procedures by which he may reach his determination;
(i) whose decision, in the absence of manifest error, shall be final and binding upon the Parties; and
(j) whose costs (and the costs of any advisers to the expert) shall be borne by the Parties in equal shares with each Party bearing its own costs of participating in the dispute resolution process (unless otherwise agreed by the Parties). Any determination made by an expert must be consistent with the provisions of this Agreement.
Independent Audit The Grantee shall submit, in a format specified by the department, the independent financial compliance audit prepared by an independent Certified Public Accountant for the previous fiscal year. The audit shall follow the General Grant Requirements of Sections VIII (F) and (G) and be submitted no later than March 1 of the current fiscal year.
Appointment of Independent Engineer The Authority shall appoint a consulting engineering firm from a panel of 10 (ten) firms or bodies corporate, constituted by the Authority substantially in accordance with the selection criteria set forth in Schedule-P, to be the independent consultant under this Agreement (the “Independent Engineer”). The appointment shall be made no later than 90 (ninety) days from the date of this Agreement and shall be for a period of 3 (three) years. On expiry or termination of the aforesaid period, the Authority may in its discretion renew the appointment, or appoint another firm from a fresh panel constituted pursuant to Schedule-P to be the Independent Engineer for a term of 3 (three) years, and such procedure shall be repeated after expiry of each appointment.
Auditor 28.2.1 The Department (in accordance with Post-16 audit code of practice - XXX.XX (xxx.xxx.xx)), the European Commission, the European Court of Auditors and/or a Crown Body may at any time conduct audits for the following purposes:-
(a) to establish that the Provider has used the Funding (and proposed or actual variations to the Funding in accordance with this Agreement) in the delivery of the Services and/or the costs of all suppliers (including Sub- Contractors) of the Services;
(b) to verify the Provider’s claims for Funding;
(c) to review the integrity, confidentiality and security of the Department Data as well as the Department’s access to the Department Data;
(d) to review the Provider's and/or a Provider Related Party's compliance with the DPA 2018, the FOIA in accordance with Clauses 19 (Department Data) and 23 (Freedom of Information and Confidentiality) and any other Law applicable to the Services;
(e) to carry out the audit and certification of the Department’s accounts;
(f) to verify the accuracy and completeness of any management information delivered or required by this Agreement;
(g) to ensure that the Provider and/or a Provider Related Party is complying with the Department Policies and any British or equivalent European standards and any other audit that may be required by any Relevant Authority, such audits may be based on current or preceding years or preceding Agreements.
28.2.2 The Department will use its reasonable endeavours to ensure that the conduct of each audit does not unreasonably disrupt the Provider or delay the provision of the Services.
28.2.3 Subject to the Department’s obligations of confidentiality, the Provider and/or a Provider Related Party must on demand provide the Department (and/or its agents or representatives) with all reasonable co-operation and assistance in relation to each audit, including:-
(a) all information requested by the Department within the permitted scope of the audit;
(b) reasonable access to any premises and any equipment used (whether exclusively or non-exclusively) in the performance of the Services;
(c) access to the Provider's and/or a Provider Related Party's systems; and
(d) access to Provider Personnel; and
(e) provision of any accounting records as referred to in Section 386 of the Companies Act 2006 and/or financial records as the Department may require which if the Provider is not a company may include similar accounting records as are referred to in Section 386 of the Companies Act 2006.
28.2.4 The Provider will implement all measurement and monitoring tools and procedures necessary to measure and report on the Provider's (including for the avoidance of doubt a Provider Related Party's) performance of the Services.
28.2.5 The Department will endeavour to (but is not obliged to) provide at least ten (10) Working Days' notice of its intention to conduct an audit. The Department may carry out audit visits with or without prior notice at its discretion.
28.2.6 The Parties agree that they will bear their own respective costs and expenses incurred in respect of compliance with their obligations under this clause, unless the audit identifies a material breach or malpractice by the Provider and/or a Provider Related Party in which case the Provider will reimburse the Department for all the Department’s reasonable costs incurred in the course of the audit.
28.2.7 If the findings of an audit conducted pursuant to this Clause 28 results in the requirement for ILR data to be corrected and re-submitted the Provider must re-submit the data to the Department, as set out in Clause 21 (Submission of Learner Data), within two months. Failure to do so will be a Minor Breach of this Agreement.
28.2.8 If the Department identifies that:-
(a) the Provider has failed to perform its obligations under this Agreement in any material manner, without prejudice to any other remedy that the Department has, the Parties will agree and implement a remedial plan. If the Provider's failure relates to a failure to provide any information to the Department about the Funding, proposed Funding or the Provider's costs, then the remedial plan will include a requirement for the provision of all such information;
(b) there has been any under or over payment it will be dealt with in accordance with Clause 26.1 (Funding and Payment).
28.2.9 The Provider must permit records referred to in this Clause 28 to be examined and copied from time to time by the Department’s auditor and inspectors and their representatives and other representatives of the Department.
Accountant A person engaged in the practice of accounting who (except when this Agreement provides that an Accountant must be Independent) may be employed by or affiliated with the Depositor or an Affiliate of the Depositor.
