Terms & Conditions

1 Introduction

1.1 These terms and conditions, together with the contents of this proposal form the entire agreement between us and you in relation to the Services (the “Agreement”). It contains our understanding of your requirements and records the terms and conditions of our appointment to provide the Services to you. To the extent there is any conflict between the engagement letter and these terms and conditions, the engagement letter will prevail.

1.2 In this Agreement, “we”, “our”, and “us” refer to Trade Business Accountants and “you” and “your” refer to all those entities listed within this proposal.

2 Services

2.1 We will provide the services outlined in this Agreement to you (the “Services”).

2.2 If there is material change to the Services to be provided (e.g. additional services), we must agree in writing to provide those services in a supplementary or replacement proposal (which will specify the scope of the further appointment).

2.3 Unless otherwise agreed in writing, our advice and the Services are provided solely for your benefit and no advice or other information provided by us is to be passed on, made available or relied upon by any third party.

3 Conflict of Interest

3.1 Unless otherwise notified, we are not presently aware of any conflict of interest which would affect our ability to provide the Services to you. We will advise you if we become aware of any potential conflict of interest during the course of our engagement and we will work with you to find a suitable solution. However, if a conflict or potential conflict arises we may be required to terminate this Agreement.

4 Information and Documents

4.1 You agree:

a) to provide us on a timely basis with all the information and documents we reasonably request or require to provide the Services (including access to records, staff, premises, information technology and other systems); 

b) that the information and documents provided by you (or on your behalf) will be accurate, complete, and not misleading and, if you become aware that any information or document provided to us has become inaccurate, incomplete or misleading, you will promptly notify us;

c) that we may, and you acknowledge that we will (unless otherwise agreed), rely on the information and documents provided to us as accurate, complete and not misleading without seeking further independent verification or clarification; and

d) we will not be responsible or liable if the information (including documents) which is provided to us or we are instructed to obtain under or in relation to this Agreement is or becomes inaccurate, incomplete or misleading.

4.2 You warrant that all information provided to us complies with the Privacy Act 1988 (Cth) (Privacy Act) and does not (and will not for the term of our engagement) breach the intellectual property rights of any third parties.

4.3 If you provide us with custody of any document in relation to this Agreement, we will retain that document for the term of this Agreement and endeavour to return it to you at the end of the term (unless its earlier return is requested).

4.4 Each document that you supply to us and all final end product documents we produce and supply to you (except for audit reports, review engagements or similar such opinions) under or in relation to this Agreement, will be or remain your property. However, the working papers and drafts we produce under or relation to this Agreement (that do not form part of our final product documents) are our property.

4.5 Where we consider it reasonably practicable, we will inform you and seek your consent before granting access to the working papers to any third party. In certain circumstances, statutory authorities (such as but not limited to the Australian Tax Office) may request access to information and work papers and we may not be legally able to prevent such access.

4.6 We may retain copies of any correspondence and any documents for our records or to meet our legal obligations. We may also destroy any correspondence or documents if we believe they are no longer needed for legal reasons.

5 Electronic Communication

5.1 We strongly recommend that all clients use an up to date virus checker on their computers to avoid the transfer of viruses to other systems. If you provide us with a disk (including a USB) or e-mail attachments for use on our system and it contains a virus, we may require you to use our disks to transfer your information to us in future.

5.2 We each accept the risks inherent in electronic communications and cyber security and will each be responsible for protecting our own systems and interests in relation to electronic communications and cyber-events. As such, neither you nor us (in each case including our respective partners, directors, employees, sub-contractors or agents) will have any liability to each other on any basis, whether in contract, tort (including negligence) or otherwise, in respect of any damage, loss or omission arising from or in connection with the cyber-events or electronic information transfers between us.

5.3 By signing the confirmation attached to this engagement letter you consent to the receipt of our newsletter and any other business, accounting and tax related information we may send by way of email from time to time. In addition, you are expressly waiving the requirement for us to include a functional unsubscribe facility in the principal message by which such information is transmitted.

6 Confidentiality and Privacy

6.1 We will not disclose any confidential information or personal information that we obtain from you under or in relation to this Agreement to any other person without your permission except:

a) as required in the ordinary course of business to provide the Services to you in an efficient and effective manner or for our quality assurance process (including to any of our partners, employees and agents and any Trade Business Accountants Party involved in providing the Services to you);

b) if made reasonably necessary by law, regulation, Court or arbitration proceedings, regulatory authorities, professional duty or to otherwise protect our own interests (including to our professional advisors).

6.2 You agree that we (and any third party instructed on our behalf) may collect personal information
from you and use it for the purposes of providing the Services to you, advancing our relationship with you, keeping you up-to-date in relation to our services.

6.3 We may use the credentials obtained in doing work for you in internal and external publicity material. We will ask your permission before publicly claiming credit for our work for you.

6.4 Unless agreed in writing, we may:

a) refer to our work for you in proposals (or other similar submissions to prospective clients); and

b)provide your information (on an anonymised basis) for statistical, research or benchmarking purposes, so long as your information is not used or published in a way that could reasonably be expected to identify you.

6.5 Unless otherwise agreed in writing, you will not name us or refer to us in connection with written materials or publicly filed documents, other than to your professional advisers. Where you are permitted to disclose material we provide to you, you must not edit or modify the material.

6.6 You acknowledge that our processes, concepts and techniques are our property and confidential information. You will not disclose to third parties any confidential information relating to us or our processes, ideas, concepts or techniques, unless you are required to do so by law, in which case, to the extent permitted by law, you will inform us of the person(s) to whom you are required to disclose the information, the information that requires disclosure, and any other information we reasonably request.

7 Security

7.1 We take our security obligations seriously and your personal information is regarded as confidential and may be held in both hard copy and/or electronic versions. We will take all reasonable steps to safeguard your information so that it is not misused, lost, modified, accessed by unauthorised persons or disclosed without authorisation.

As responsible data custodians we are familiar with the requirements of the Notifiable Data Breaches scheme and are committed to responding to data breaches in accordance with our obligations under the Privacy Act. We will notify the Office of the Australian Information Commissioner and you if there is unauthorised access to, unauthorised disclosure of, or loss of, personal information held by us and the access, disclosure or loss is likely to result in serious harm to any of the individuals to whom the information relates in accordance with the Privacy Act.

Our website may contain links to external websites operated by third parties. The privacy polices of these other websites may not accord with this Privacy Policy and we cannot be held responsible and do not have control of the use of your personal information by these third parties.

As responsible data custodians, any breach of this Privacy Policy by our employees, contractors, consultants, partners and any other entity that at our direction have access to your personal information will invoke disciplinary and possible legal action against the offending party.

8 Limitation of Liability

8.1 We will only be liable to you for direct losses, damages, costs or expenses actually suffered by you and caused by our negligence or wilful default (“Losses”). You agree that:

a) we shall have no other liability of any nature, whether in contract, tort or otherwise, for any other losses, whatsoever and howsoever caused, arising from or in any way connected with this engagement (including all indirect loss, consequential loss, loss of profits and any loss resulting from liability to any third party);

b) we will not be liable if such Losses are due to any acts or omissions of any person other than us (Trade Business Accountants) and we will only bear the part of any Losses that is proportionate to the Losses we have directly caused or contributed to. In determining responsibility for the Losses caused or contributed to, account shall be taken of any Losses to be reasonably attributable to any third party; and

c) our aggregate liability arising from or in any way connected with this engagement, whether to you and/or any other party, of whatever nature and whatsoever and howsoever caused, will be limited to the Losses suffered by you and the maximum amount of such liability will not exceed four times the fee actually paid for the particular part of the Services giving rise to the claim.

8.2 You must make all claims in relation to this Agreement to us, in writing, and no later than two years after the date we completed the specific work to which the claim relates.

8.3 Unless agreed otherwise in a separate engagement letter, we accept no responsibility or liability in relation to any advice we provide regarding company or partnership distributions and/or the solvency test under company or partnership law.

8.4 We each agree that nothing in this Agreement shall exclude, restrict (or prevent suit in respect of) any liability arising from fraud, dishonesty or any other liabilities which cannot lawfully be limited or excluded.

8.5 We each agree that the limitation of liability in this clause 8 extends to any variation and any addition to the Agreement and to all claims, including any claims arising from breach of contract, negligence or in any other way.

9 Indemnities

9.1 You indemnify us and all partners, employees and/or agents of Trade Business Accountants, or such parties successors and/or assignees (together, the “Trade Business Accountants Parties”) against all actions, claims, proceedings, losses, damages, costs and expenses resulting from or in relation to:

a) any breach of, or default under, this Agreement by you;

b) any infringement or alleged infringement of any intellectual property in any information or documents provided to us or which we are instructed to obtain;

c) our reliance on information provided to us or which we are instructed to obtain that is or becomes inaccurate, incomplete or misleading;

d) a third party using or relying on our advice or information; and/or

e) any reasonable costs or expenses (including legal costs on a solicitor and own client basis) that we or the Trade Business Accountants Parties may incur in respect of such loss or liability.

9.2 You agree that you will not bring any action against the Trade Business Accountants Parties and that you will indemnify on demand and hold the Trade Business Accountants Parties harmless against all actions, claims, proceedings, losses, damages, costs and expenses whatsoever and howsoever caused arising from or in any way connected with this engagement, unless, and to the extent that, they have been finally and judicially determined (including by the conclusion of any appeal) to have been caused by the fraud, dishonesty, wilful default or negligence of a Trade Business Accountants Party.

9.3 The indemnities referred to above will be enforceable by us and the Trade Business Accountants Parties (individually or collectively) whether or not legal proceedings are instituted and, if legal proceedings are instituted, irrespective of the means of any settlement, compromise or determination.

10 Our Employees

10.1 From time to time, our partners, employees and/or agents may work from your premises. If and when they do, you will comply with all relevant statutes, by laws, codes of practice and legal requirements in relation to them being on, and working from, your premises.

10.2 You will not offer employment to any of our employees or induce any of our employees to end their employment with us without the prior written permission of a Trade Business Accountants partner. You also agree not to procure or assist anyone else to do this. In addition to breaching this Agreement, you acknowledge that if you offer or induce any of our employees to end their employment with us you may be assisting or procuring a breach of a restraint of trade between Trade Business Accountants and the employee.

10.3 If you directly employ any of our employees within a period of twelve months after completing an assignment, you agree to pay an introduction fee of 100% of the staff member’s annual gross salary as paid by us (plus any benefits and GST) immediately upon their beginning of employment with you. You acknowledge that this is a genuine pre-estimate of our loss.

11 Health and Safety

11.1 We will each:

a) Comply with our obligations under the Health and Safety at Work Act 2011 and any applicable health and safety regulations or codes of practices (“H&S Law”); and

b) co-operate, consult and co-ordinate activities with each other and any other PCBU who has a duty under H&S Law in relation to this Agreement to ensure each party can comply with its H&S Law Duties. “PCBU” has the meaning set out in the Act.

11.2 You will:

a) where reasonably practicable, provide our staff with a health and safety briefing prior to commencing work or visiting your workplace; and

b) comply with all reasonable instructions from us in relation to health and safety matters affecting our people.

11.3 Each party agrees that works carried out at its workplace will be governed by its health and safety policy. However, if the work being carried out is in the other party’s area of expertise and is under the other party’s immediate control, then that other party’s health and safety policy will apply for those specific works.

12 Commencement and Termination

12.1 This engagement will commence when we receive, at the Trade Business Accountants address detailed on our letterhead, a copy of this Agreement signed on your behalf, and it shall continue in force until the engagement ends, or is terminated by either party.

12.2 We each may terminate this Agreement by giving 30 days written notice to the other party. Additionally, we reserve the right to terminate the agreement immediately where you fail to meet your obligations, become insolvent or if we believe, in our sole discretion, that immediate termination is warranted. Termination will not affect any accrued rights of a party. For the avoidance of doubt, we will be entitled to our fees incurred until the date of termination.

12.3 Any provision of this Agreement which is intended to apply after termination (including, but not limited to, provisions relating to confidentiality, indemnity, claims, limitation of liability, fees and termination) will continue to apply after termination.

13 Variation

13.1 We may vary these terms and conditions at any time. In that event, we endeavour to communicate the changes to you and may make the updated terms available through our website. If you instruct us to commence a new instruction after such communication, you will be deemed to have accepted those changes (in the absence of any other communications to the contrary) and accordingly that instruction and any subsequent instruction will be based on those updated terms.

14 Applicable Law and Governing Jurisdiction

14.1 We both agree that this Agreement shall be governed and construed in accordance with t he laws of Australia and each party submits to the exclusive jurisdiction of the Courts of Australia.

15 Assignment

15.1 You may not assign this Agreement or the performance of the Services to any third party without our prior written consent.

16 Severability

16.1 If any terms or provisions of this Agreement (or parts thereof) are or become invalid, illegal or unenforceable, the remainder shall survive unaffected to the fullest extent permitted by law.

16.2 If a court holds that any provision of this Agreement or its duration is unenforceable, illegal, or invalid but any such provision would be enforceable if it was modified or limited, then that provision shall be so modified or limited to the extent necessary.

17 Events Beyond our Control

17.1 We are not liable to you for any failure, or delay in performing the services if the failure or delay arose from a cause beyond our reasonable control.

18 Our advice

18.1 Any advice or material we provide to you orally, in draft or otherwise must be finalised and in written form before you can rely upon it.

18.2 Any advice we provide will be current at the time of its issue. We are not obliged to update the advice once it has been issued and do not undertake to do so. If an action that we have advised on is delayed or you want to repeat a transaction, you must ask us to confirm our previous advice in order to rely on it. We may charge you for confirming (or updating) our previous advice.

18.3 If our advice includes a summary of our understanding of the facts or background on which our advice is based, you must immediately advise us if the summary does not accurately reflect your understanding of the facts or background.

19 Fees

19.1 Unless otherwise agreed, we take your first credit card payments through a secure Stripe payment gateway from the date of sign up, then Stripe will automatically process your monthly payment and send you a receipt of payment until as long as you remain a client.

19.2 In the event of a default in payment to us by any entity for which this engagement letter incorporates (“you”), you or any entity in the same corporate group as you (with the exception of any Trade Business Accountant related corporate trustee), severally shall pay the amount in default and all costs incurred by us, including any debt collector’s costs incurred in the recovery or attempted recovery of outstanding moneys and enforcement of any of the terms contained in this Agreement.

20 GST

20.1 If goods and services tax (GST) is payable by us in relation to any supply made by us to you, you agree to pay to us that GST amount in addition to our fees and disbursements. We will provide you with a valid tax invoice where GST is payable by you to us.

21 Right to Claim a General Lien over Documents and Files

21.1 It is agreed that we will be entitled to exercise a general lien over all the files and related documents that may come into our possession for the purpose of performing professional services for you until all our costs and charges for professional services of any nature to you have been fully paid.

22 Ethical and practice guidelines

22.1 We will observe the ethical guidelines of Chartered Accountants Australia and New Zealand and accept instructions to act for you on the basis that we will act in accordance with those guidelines.

23 Quality of service

23.1 If you, at any time, believe our service to you could be improved, or if you are dissatisfied with any aspect of the Service (including any potential dispute arising out of or in connection with this Agreement), you must raise the matter with the partner responsible for providing the Services to you before looking to other mechanisms for resolving the matter. If, for any reason, you would prefer to discuss the matters with someone other than that partner, please contact our managing director. You will give us a reasonable period of time to deal with the matter.

23.2 If after having had discussions in accordance with clause 22.1 you reasonably believe the matter requires further resolution, we shall both make reasonable efforts to resolve the matter by some form of alternative dispute resolution method (such as mediation or expert appraisal) before commencing any court proceedings.

23.3 We will investigate all complaints. You have the right to take any complaint up with Chartered Accountants Australia and New Zealand.

23.4 If you are not satisfied with our response to your complaint or inquiry you can contact the Office of the Australian Information Commissioner (OAIC) at www.oaic.gov.au.

Policy Effective: 14/02/2023