This document outlines our standard terms and conditions which set out the basis upon which we will act for you.
1 Who may instruct us?
1.1 You confirm that you, and any other person you nominate in writing from time to time (provided we have acknowledged such nomination), are authorised to give us instructions and information on behalf of all persons we are acting for and to receive our advice and documents on their behalf.
1.2 If we are acting for a business, and we receive conflicting advice, information or instructions from different persons, we may refer the matter to the board of directors, partners or proprietors (as applicable) and act only as requested by them.
1.3 If we are acting for you and your partner, we will advise you on the basis that you are a family unit with shared interests. We may deal with either of you and may discuss with either of you the affairs of the other. If you wish to change these arrangements, please notify us in writing.
2 Know your customer
2.1 We may be required to verify your identity for the purposes of the anti-money laundering laws. We may request from you such information as we require for these purposes and make searches of appropriate databases.
3 Scope and objectives of the Engagement
3.1 The scope of our engagement is set out in the Engagement Letter that accompanied these terms and conditions.
3.2 We consider that we have the necessary expertise to perform the services covered by our engagement. However, any changes to the scope of our engagement may require us to reconsider the terms of our engagement and/or make new arrangements with you.
3.3 The extent of our procedures and services will be limited exclusively for this purpose only. As a result, no audit or review will be performed and, accordingly, no assurance will be expressed.
3.4 The special purpose financial report will be prepared exclusively for your benefit and for the purpose specified to us by you. We will not accept responsibility to any other person for the contents of the financial report.
3.5 If the scope does not meet your requirements or you would like to discuss the scope with us further, please contact our office on 02 4365 6789.
4 Nature and Limitations
4.1 We will rely on you for both the completeness and accuracy of the information supplied to us and you are solely responsible to users of special purpose financial reports compiled by us. This includes responsibility for the maintenance of adequate accounting records and adequate internal control structure.
4.2 Nothing in this letter excludes the operation of the Australian Consumer Law or analogous provisions of State and Territory Fair Trading Acts to the extent that they may be applicable.
5 Reliance on advice
5.1 You must not act on advice given by us on an earlier occasion without first confirming with us that the advice is still valid.
5.2 We will endeavour to record all advice on important matters in writing. Advice given verbally is not intended to be relied upon unless confirmed in writing. If we provide verbal advice (for example during a meeting or telephone conversation) that you wish to rely on, you must ask us to confirm the advice in writing.
6 Investment and financial advisory advice
6.1 We will not provide you with investment or financial advice regulated under the Corporations Act 2001 (Cth) unless we have expressly agreed to do so in writing, specifying an applicable Australian Financial Services Licence number.
7 Your disclosure and record keeping obligations
7.1 You are required by law to keep full and accurate records relating to your tax affairs
7.2 It is your obligation to provide us with all information that you reasonably expect will be necessary to allow us to perform work contemplated under this engagement within a timely manner or as requested. This includes providing accurate and complete responses to questions asked of you by us within a reasonable timeframe. Inaccurate, incomplete or late information could have a material effect on our services and/or our conclusions and may result in additional fees, late lodgement penalties and general interest charges. We will not verify the underlying accuracy or completeness of information you provide to us.
7.3 You are also required to advise us on a timely basis if there are any changes to your circumstances that may be relevant to the performance of our services. Specifically, if any subsequent event results in the information you provided to us being inaccurate, incomplete or misleading, then you are obliged to advise us as soon as possible. We take no responsibility to the extent that our advice is inaccurate, incomplete or misleading because it is based on inaccurate, incomplete or misleading information being provided to us.
7.4 By accepting the terms of this letter, you will be taken to have agreed that the performance of our services is dependent on the performance of your obligations relating to disclosure and record keeping.
7.5 You are responsible for ensuring that the business activities of your company, trust, partnership or sole trader are conducted in accordance with laws and regulations. You are also responsible for identifying and addressing any non-compliance by your company, trust, partnership or sole trader, by an individual charged with governance of the entity, by a member of management, or by other individuals working for or under the direction of the entity.
7.6 The Taxation Administration Act 1953 contains specific provisions that may provide you with “safe harbours” from administrative penalties for incorrect or late lodgement of returns if, amongst other things, you give us “all relevant taxation information” in a timely manner (the safe harbor provisions apply from 1 March 2010). Accordingly, it is to your advantage that all relevant information is disclosed to us as any failure by you to provide this information may affect your ability to rely on the “safe harbour” provisions and will be taken into account in determining the extent to which we have discharged our obligations to you.
7.7 You are also required to advise us if you become aware of any conflict of interest or potential conflict of interest. Generally, a conflict of interest is any event which may result in us becoming unable to remain objective in the performance of our services to you.
8 Your rights and obligations under the taxation laws
8.1 You have certain rights under the taxation laws, including the right to seek a private ruling from the Australian Taxation Office (ATO) or to appeal or object against a decision made by the Commissioner. As relevant, we will provide further information to you concerning your rights under the Australian taxation laws during the conduct of the engagement contemplated by this letter.
8.2 You also have certain obligations under the Australian taxation laws, such as the obligation to keep proper records and the obligation to lodge returns by the due date.
8.3 A taxpayer is responsible under self assessment to keep full and proper records in order to facilitate the preparation of a correct return. Whilst the Commissioner of Taxation will accept claims made by a taxpayer in an income tax return and issue a notice of assessment, usually without adjustment, the return may be subject to later review. Under the taxation law such a review may take place within a period of up to four (4) years after tax becomes due and payable under the assessment. Furthermore, where there is fraud or evasion there is no time limit on amending the assessment. Accordingly, you should check the return before it is signed to ensure that the information in the return is accurate.
9 Our obligation to comply with the law
9.1 We will comply with the professional and ethical standards of the Accounting Professional and Ethical Standards Board, available at apesb.org.au. This includes APES 110 Code of Ethics for Professional Accountants (including Independence Standards).
9.2 We have a duty to act in your best interests. However, the duty to act in your best interests is subject to an overriding obligation to comply with the law even if that may require us to act in a manner that may be contrary to your interests.
9.3 We also have an obligation to ensure that we manage conflicts of interest as they arise. In this regard, we have arrangements in place to ensure that we manage potential or actual conflicts of interest. The effective operations of these arrangements depend, in part, on you complying with your obligation to disclose any potential conflicts of interest to us.
9.4 Unless otherwise stated, this opinion is based on the Australian tax law in force and the practice of the Australian Taxation Office (the ATO) applicable as at the date of this letter.
9.5 Our advice and/or services will be based on Australian taxation law in force at the date of the provision of the advice and/or services. It is your responsibility to seek updated advice if you intend to rely on our advice at a later stage. We note that Australian taxation laws are often subject to frequent change and our advice will not be updated unless specifically requested by you at the time of the change in law or announced change in law.
10 Confidentiality & Responsibilities
10.1 We will not disclose any information relating to your affairs to any third party without your consent, unless required or allowed for by law or regulations, or we determine that disclosure of the non- compliance or suspected non-compliance to an appropriate authority is an appropriate course of action in the circumstances. You may provide us with permission to disclose your confidential information in certain circumstances, or place conditions on the disclosure of certain confidential information. If you do so, we will have permission to disclose the relevant information accordingly, in the performance of our services, unless you instruct us otherwise in writing.
10.2 We wish to draw your attention to our firm’s system of quality control which has been established and maintained in accordance with the relevant APESB standard. As a result, our files may be subject to review as part of the quality control review program of Chartered Accountants Australia and New Zealand which monitors compliance with professional standards by its members. We advise you that by accepting our engagement you acknowledge that, if requested, our files relating to this engagement will be made available under this program. Should this occur, we will advise you.
10.3 We may retain your information during and after our engagement to comply with our legal requirements or as part of our regular IT back-up and archiving practices. We will continue to hold such information confidentially.
10.4 Clients are required to arrange for reasonable access by us to relevant individuals and documents, and shall be responsible for both the completeness and accuracy of the information supplied to us.
10.6 Where you have collected personal information, you confirm that you have collected the personal information in accordance with the Privacy Act, that you are entitled to provide this personal information to us and that we may use and disclose the personal information for the purpose/s we provide our services to you.
11 Storage of Information
11.1 By signing the Engagement Letter and accepting these services you acknowledge and agree that your personal information may be stored overseas.
11.2 You acknowledge that we utilise cloud computing services provided by Microsoft, DropBox, Xero, Intuit, Reckon Hosted, MYOB and BGL Corp. These providers use data centres located in Australia, United States, Netherlands, Ireland, Singapore and Hong Kong. The location of data centres used by these providers may change from time to time.
12.1 You must advise of any change to your contact details. We may send any communication to the last contact details you have provided.
12.2 Unless you instruct us otherwise we may, where appropriate, communicate with you and with third parties via email or by other electronic means. The recipient is responsible for virus checking emails and any attachments. There is a risk of non-receipt, delayed receipt, inadvertent misdirection or interception by third parties in any form of communication, whether electronic, postal or otherwise. We are not responsible for any such matters beyond our control.
13 Ownership of Documents
13.1 All original documents obtained from you arising from the engagement shall remain your property. However, we reserve the right to make a reasonable number of copies of the original documents for our records.
13.2 We own the copyright and all other intellectual property rights in everything we create in connection with this engagement. Unless we agree otherwise, anything we create in connection with this agreement may be used by you only for the purpose for which you have engaged us.
13.3 All working papers prepared by us (in any form whatsoever, including physical and electronic) remain our property. We will retain these papers in accordance with our normal record keeping practices in accordance with our professional and legal obligations.
13.4 You agree we can use your logos and trademarks for the sole purpose of providing advice to you in connection with the engagement, unless you tell us otherwise.
14.1 Our fees, which may be billed as work progresses are based on the time required by the individuals assigned to the engagement plus direct out of pocket expenses.
14.2 Our hourly rates are between $100.00 and $440.00 (plus GST) depending upon the level of staff assigned to complete the work. These rates may change from time to time.
14.3 If we have provided you with an estimate of our fees for any specific work, this is an estimate only and out actual fees may vary.
14.4 Our fees set out in our engagement letter are exclusive of GST which will be added to our invoice where it is chargeable.
14.5 Any disbursement and expenses we incur in the course of performing our services will added to our invoices where appropriate.
14.6 Our standard terms of trade are payment prior to lodgement of your documents. However, we may offer clients 14 day payment terms for particular services. Please refer to our Engagement Letter / invoice for further information.
14.7 In some cases, you may be entitled to assistance with your professional fees, particularly in relation to any investigation into your tax affairs by the ATO. Assistance may be provided through insurance policies you hold or via membership of a professional or trade body. Other than where such insurance was arranged through us, you will need to advise us of any such insurance cover that you have. You will remain liable for our fees regardless of whether all or part are to be paid by someone else.
14.8 Unless otherwise agreed to the contrary, our fees do not include the costs of any counsel, or other professionals or third parties engaged with your approval.
14.9 If any fee account rendered by us remains unpaid, you agree that we have the right to a lien over any of your books and records that we may be holding and further agree that we retain the right to such lien, until the fee account has been paid or settled to our satisfaction.
14.10 We may charge interest on late paid invoices at the rate of 1% per month. We may also suspend our services or cease to act for you on giving written notice if payment of any fees is unduly delayed.
14.11 Any invoices and statements that are addressed in the entity’s name are the responsibility of the office bearers to which each director gives their personal guarantee to pay these accounts. The office bearers provide a personal guarantee to Kennedy Barnden Chartered Accountants or associated entities in which the business trades, to pay any outstanding account that is derived in either their personal name or the name of any company, partnership, trust, self-managed super fund, or non-profit organisation that they are a director, member, shareholder, trustee or partner. Any office bearer will be equally and severally liable to pay the accounts of the company, trust, self-managed super fund, partnership, or non-profit organisation to which they are involved partial or in full.
14.12 Furthermore, the director, member, shareholder, trustee or partner will be equally and severally liable to pay the accounts of the company, trust, self-managed super fund, partnership, or non-profit organisation including any and all legal cost in pursuing the matter through either a debt recovery agency or solicitor and any interest charged under clause 14.10.
15 Consequential Loss
15.1 In this clause 15: Consequential Loss means any loss or damage which is indirect, consequential, special, punitive, exemplary or incidental, including but not limited to any loss of profit, revenue, anticipated savings or business opportunity, or damage to goodwill however caused or arising as a result of the performance of the services or in connection with this Agreement.
15.2 To the extent permitted by law, we disclaim all warranties, either express implied in relation to the services other than any written warranty made in this agreement.
15.3 Our liability is limited by a scheme approved under the Professional Standards Legislation (other than for the acts or omissions of Australian financial services licensees). Further information on the scheme is available from the Professional Standards Councils website: www.psc.gov.au
15.4 In any case, we will be liable to you only for that proportion of the total loss that we have caused or to which we have contributed.
15.5 We will not be liable for any loss, or failure to provide the services, which is caused by an unexpected delay or which arises as a result of us relying on any false, misleading or incomplete information.
15.6 Neither party will be liable to the other for any Consequential Loss.
15.7 Our professional staff, employees, partners and directors will not be liable to you in respect of any loss or damage suffered by you as a result of services provided by us, nor for any consequential loss or damage suffered by any third party.
15.8 It is agreed that you will not bring any claim arising out of the Agreement against any of our professional staff, directors, partners and employees personally.
16 Limitation of third-party rights
16.1 Our advice and information are for your sole use, and we accept no responsibility to any third party, unless we have expressly agreed in the engagement letter that a specified third party may rely on our work.
17.1 We may terminate the Agreement and cease providing services to you, unless we are providing you with a statutory audit service:
17.1.1 while any of our tax invoices remain unpaid by the due date;
17.1.2 if you do not comply with a request to pay an amount in respect of disbursements or future costs, charges and expenses within 7 days;
17.1.3 if you do not provide us with clear and timely instructions to enable us to advance your matter;
17.1.4 if you refuse to accept our advice;
17.1.5 if you indicate to us or we form the view that you have lost confidence in us;
17.1.6 if there are any ethical grounds which we consider require us to cease acting for you, for example a conflict of interest;
17.1.7 for any other reason outside our control which has the effect of compromising our ability to perform the services required within the required timeframe;
17.1.8 if we determine that there are no reasonable grounds for believing on the basis of provable facts and a reasonably arguable view of the law that any claim or the defence of any claim for damages (as appropriate) has reasonable prospects of success;
17.1.9 if in our sole discretion we consider it is no longer appropriate to act for you; or
17.1.10 for just cause.
17.2 We will give you reasonable written notice of termination of our services. You will be liable for, and required to pay our fees, charges, expenses and disbursements incurred up to the date of termination, even if we issue you with an invoice for such fees, charges, expenses and disbursements after the date of termination.
17.3 Either party may terminate the Agreement in the event of bankruptcy or the appointment of a liquidator, receiver or an administrator of the other party.
17.4 You may terminate the Agreement by 7 days’ prior written notice at any time.
17.5 Termination under this clause shall be without prejudice to any rights that may have accrued before termination.
18 Applicable Law
18.1 Our engagement is governed by New South Wales law. The courts sitting in that State will have non- exclusive jurisdiction in relation to any dispute between us.
19.1 If any provision of the engagement letter or these terms is void, that provision will be severed and the remainder will continue to apply. If there is any conflict between the engagement letter and these terms, these terms prevail.
20 Disputes and complaints
20.1 If you have any concerns about our costs or services, please speak to the person responsible for this engagement, who is identified in our engagement letter. To resolve your concerns, we have policies and procedures in place to deal appropriately with complaints and will use best endeavours to resolve a complaint or dispute to the mutual satisfaction of the parties involved. We may require you to detail your complaint in writing to allow us to fully investigate any concerns that you raise.