STANDARD TERMS AND CONDITIONS
ESV Accounting and Business Advisors (ESVABA, we, us, our)
Effective from 1 July 2016
1. THESE TERMS AND CONDITIONS
This page contains the terms and conditions (Terms and Conditions) on which, in conjunction with our engagement letter, we will provide services to you. Where there is any inconsistency between an engagement letter issued to you and these Terms and Conditions, the engagement letter will prevail to the extent of the inconsistency.
For the purposes of these Terms and Conditions, any reference to “we, us, our” is a reference to ESVABA, and any reference to “you, your” is a reference to the party or parties that have engaged us to provide services.
2. LEGAL ADVICE
We suggest you obtain independent legal advice on all questions you may have in relation to these Terms and Conditions or our engagement.
You will be taken to have accepted the terms of our engagement letter, and these Terms and Conditions, on the earlier of the date—
These Terms and Conditions terminate when either—
and you have paid us fees rendered in respect of services provided in respect of the engagement and any other outstanding amounts.
4. OUR SERVICES
We will provide services to you in accordance with these Terms and Conditions and with the degree of skill, care and diligence expected of a professional firm delivering similar kinds of services.
5. TAXATION SERVICES
ESVABA is registered as a partnership tax agent (registration number 64635008) under the Tax Agents Services Act 2009 (Cth) and is authorised to provide taxation services.
Where our engagement involves us providing taxation services, the responsibility for the accuracy and the completeness of the particulars and information provided by you in respect of taxation services rests with you.
It is your obligation, under Australia’s self assessment regime, to keep full and proper records in order to facilitate the preparation of accurate returns to the Australian Taxation Office.
Where we provide taxation advice, that advice represents our opinion which has been formed based on our knowledge of your particular circumstances.
We will not provide taxation services to you if we discover, or form an opinion that, the information on which the taxation service is to be based contains false or misleading information or omits material information that you are not prepared to appropriately amend.
6. FINANCIAL SERVICES
Neither ESVABA nor any of the individual partners or employees ESVABA hold an Australian financial services licence.
ESV Financial Services Pty Ltd ACN 609 492 051 (ESVFS) holds an Australian financial services licence (number 484772), which authorises it to provide limited financial services to retail and wholesale clients. ESVFS is a member of the ESV Group of entities, and ESVFS has appointed the following partners of ESVABA to provide the financial services it is authorised to provide on its behalf to both retail and wholesale clients:
(a) Maree Elizabeth Macphail (authorised representative number # 1243742).
(b) David Michael Prichard (authorised representative number # 1243740).
Any financial services provided under or in connection this engagement will be provided by one or both of the above named persons in their capacity as an authorised representative of ESVFS.
7. FEE ACCOUNTS AND TERMS
Our fee accounts for professional services are rendered as and when substantial work is performed and often on an interim basis as opposed to at the completion of particular tasks. We require payment within 14 days of issue of our invoice.
Fees can be paid directly to our bank or by the major credit cards. Our bank details for payment are:
Account Name - ESV Chartered Accountants
Bank - Australia and New Zealand Banking Group Limited
BSB - 012172
Account Number - 837844889
(Please include client name and invoice number in narrations)
Where payment is not received within 14 days of the date of the invoice, a credit card processing fee applies to credit card payments. The processing fee is currently 1.35% (Visa, American Express & Mastercard), inclusive of GST.
Unless we expressly agree otherwise in writing, we expect payment from you notwithstanding the fact that our fees may be recoverable from insurance, settlement or other sources. We reserve the right to impose interest at a rate of ten percent (10%) per annum for any past due amounts.
Disbursements represent out-of-pocket payments made by us on your behalf and, unless you are requested to pay such items directly, may include such items as photocopying, courier, postage, filing fees and other applicable costs.
Occasionally, we may contract with outside parties for services in connection with our professional engagement on your behalf (subject to prior written approval by you). If we do, we may forward the invoice to you and request payment be made directly to the supplier.
Where we incur disbursements on your behalf, we will charge you the GST inclusive amount of those expenses, less any input tax credits which we are entitled to.
Where we incur any disbursements as your agent, we will charge you the GST inclusive cost of those disbursements, and provide you with sufficient information to enable you to claim an input tax credit in respect of them (if you are entitled to claim such input tax credit).
We may require payment of a retainer equal to the initial cost estimate of the particular engagement prior to commencing any work under this engagement. The retainer is made payable to ESVABA and will be applied by us towards the payment of our professional fees, costs and disbursements as they are incurred and made.
You may be requested to periodically pay additional advance retainers in such amounts at our discretion provided those amounts are reasonably related to the work to be undertaken during a period or on a mutually agreed basis.
When we finish work on your engagement, we will return to you any remaining portion of the retainer after all professional fees, costs and disbursements have been paid.
10. ESTIMATES OF PROFESSIONAL FEES
You may request an estimate of the professional fees and costs of particular engagements. We are pleased to provide such estimates, however such estimates are provided on the basis they are not a guarantee of the approximate final fees that may be payable in respect of the specific engagement.
Accordingly, unless we specifically agree in writing, no written or oral statement regarding fees and costs in connection with a particular engagement, whether expressly stated as an estimate or not, shall be deemed to limit or “cap” our professional fees and costs.
Except as set out in these Terms and Conditions, we agree to protect and keep confidential any confidential information that is given by you to us.
We will only use your confidential information to provide our services to you. Where required, we may disclose your confidential information to legal advisers, insurers, entities to whom we are legally compelled to make disclosures and any other parties properly authorised by you. You may make similar disclosures of confidential information received from us in the course of the engagement. Confidential information relating to any financial services provided under or in connection this engagement (including any advice) may be disclosed to ESVFS.
Unless required by law, we will not disclose to Revenue Authorities any opinions or written advices of third parties without the express consent of that third party and will notify you of such disclosure provided the law does not prohibit us from doing so.
Occasionally, we use personal information to send you marketing and other communications. On request, we will not send you marketing information.
The conduct of this engagement, in accordance with the relevant standards and ethical requirements of the Chartered Accountants Australia and New Zealand, means that information acquired by us in the course of the engagement is subject to strict confidentiality requirements.
Our files may, however, be subject to review as part of the quality control review program of the Chartered Accountants Australia and New Zealand which monitors compliance with professional standards by its members. By engaging us, 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.
12. INTELLECTUAL PROPERTY RIGHTS
We retain all copyright (and other intellectual property rights) in everything we develop (or are involved in developing) either before or during the course of an engagement including systems, methodologies, software, know-how, all reports, written advice or other deliverables we provide to you.
All working papers prepared by us in connection with this engagement remain our property.
You have the right to use or reproduce any report prepared for you by us provided this concurs with the purpose for which the report was written.
We reserve the right to exercise a lien on all funds, records, documents and files held by the firm in relation to any outstanding payments due from you for any services rendered by the firm or otherwise related.
13. PRIVACY ACT
During the course of our engagement, we may have access to and collect personal and sensitive information concerning you and your related entities. Our collection, use, retention, storage and disclosure or other dealings with such information is subject to the provisions of the Privacy Act 1988.
We have established policies and procedures that accord with the 13 Australian Privacy Principles (APPs) contained in Schedule 1 of the Privacy Act.
You agree that we may communicate with you using electronic media. You acknowledge that electronic media is inherently insecure, may be intercepted, may not be delivered and may contain viruses. You agree that we are not responsible for any loss suffered in connection with the use of such electronic means.
15. MUTUAL RESPONSIBILITIES
We will provide our services that, in our professional judgement, are appropriate for this engagement and in accordance with applicable legal and ethical standards. You agree that either yourself or appropriate representatives will be reasonably available to confer with us upon request, will provide us with such documents and information as you may process or compile relating to the performance of the engagement, will disclose all facts and circumstances of which you are aware that may bear upon the engagement, will promptly pay our professional fees in accordance with the terms of this correspondence, and will otherwise assist in our efforts as we reasonably request.
Where we are provided with information either by you, or compiled by others, unless you have specifically engaged us to verify that information, we will assume and reply on its accuracy and completeness subject to reasonable care.
You agree that we are not liable for any loss or damage you or any other person sustains, directly or indirectly, in connection with our reliance on that information.
16. CONFLICTS OF INTEREST
As a professional firm we seek to identify potential conflicts of interest among our present and potential clients. We will not provide our professional services to any party with an interest that may be adverse to that of an existing client unless the conflict can be adequately managed or mitigated, or both parties have consented to the proposed engagement of our firm under the applicable circumstances.
17. FILE RETENTION AND STORAGE
It is our general policy to retain clients’ files for a period of seven (7) years (internal and external storage). After this time, we may destroy those files unless you otherwise advise us in writing.
We take reasonable steps to hold information securely in electronic or physical form. From time to time, we may utilise third party data storage providers to store information on our behalf, including your personal information. We will only engage a third party data storage provider if they meet or exceed industry data storage standards and have security standards no less protective than the security standards at our premises. We will not disclose your personal information to overseas recipients.
18. TERMINATION OF PROFESSIONAL SERVICES
You may choose to terminate our engagement by giving us written notice at any time. If you do so, you shall be obliged to pay our fees for work done and for other charges incurred up to the time of the termination. Subject to fulfilling our professional responsibilities, we may terminate our engagement at any time by giving you reasonable notice or if our fees are not paid when due.
19. LIMITATION OF LIABILITY
Under the Professional Standards Act 1994 (NSW) and the Scheme approved under that Act, our liability, including that of the firm, its partners, associates and employees or contractors, is limited to a maximum sum of—
(a) $1,000,000, where the professional fee for the engagement is up to $100,000, or
(b) ten times the fee (subject to a $20 million ceiling) for professional fees in excess of $100,000.
You may wish to obtain further information in relation to the Act and the Scheme, including details with respect to specific exclusions in relation thereto. Please refer to the following websites for further information:
The Professional Standards Council
Chartered Accountants Australia and New Zealand
You agree that you have fully considered the limitation of our liability created by this clause. You acknowledge that we have advised you herein that you may wish to obtain legal advice on all questions arising from the terms of our engagement letter and, in particular, the limitation of liability provisions, because they may impact on your legal rights.
20. THIRD PARTIES
Unless we consent in writing:
You may provide a copy of work produced to your professional advisors provided that each advisor is aware of the limits placed on our work and that they treat our work as confidential and do not use or disclose any of the work produced in a way that it is not consistent with its purpose.
You may provide copies of our work to anyone else with our written permission. We may require such third parties to sign an agreement as to their use of our work.
We are not responsible to anyone (other than you) who obtains access to our anything produced by us without our prior written permission.
We agree that each of the promises and undertakings given in this letter of engagement are independent from one another and severable.
In no event shall ESVABA, its partners, directors, staff, agents and associates (together "the ESV Persons”) be liable for any failure or delay in providing the services if caused or contributed to, by an act or event (including the non-performance of your obligations) that is beyond the control of the ESV Persons or was not foreseen at the time of entering into our engagement.
We will advise you of any delays and cause however, you agree that we shall be entitled to review our fees where some delays occur.
23. TERMS OF BUSINESS
In no event shall ESVABA, its partners, directors, staff, agents and associates (together "the ESV Persons”) be liable for any losses, damages, costs or expenses arising out of error due to the provision to us of false, misleading or incomplete information or documentation or due to any acts or omissions of any other persons.
As further consideration for our agreement to provide these services, you agree to indemnify and hold harmless the ESV Persons against and from all actions, claims, proceedings, losses, damages, costs and expenses, of any nature and howsoever arising, (“Loss”) which the ESV Persons may suffer or incur, directly or indirectly, in connection with the provision of services, except where, and only to the extent thereof, the Loss is found, after all processes have been exhausted, terminated or abandoned, to have resulted from the negligence or wilful misconduct of personnel.
You agree that you have fully considered the provisions of this section and all the other provisions of this letter and that they are reasonable in light of all factors relating to the transaction and our proposed engagement.
24. GOVERNING LAW & JURISDICTION
This engagement letter, together with the contract arising from it and all aspects of this engagement including the performance of work for you, are governed by the law of New South Wales and you agree to be bound by the laws of New South Wales.
Both you and we irrevocably submit to the exclusive jurisdiction of the Courts of New South Wales, notwithstanding that your activities, or any part of the work we do, or your acceptance of these terms of engagement may take place outside the State of New South Wales.
25. RELATIONSHIP TO CLIENT
We provide our services under the engagement as an independent contractor and accordingly nothing shall be construed to create a partnership, joint venture or other relationship unless specifically acknowledged by us in writing. No party has the right, power or authority to oblige or bind the other in any manner.
You may not transfer, assign or novate your rights or obligations under these Terms and Conditions without our prior written consent. We may assign this Agreement to any successor to our business without your prior written consent.
27. UPDATING OF THESE TERMS
We may update and amend these Terms and Conditions from time to time without notice to you. The current Terms and Conditions are available on our website at http://www.esvgroup.com.au/terms-and-conditions. Due to the logistical problems involved, we do not advise clients when changes occur in the Terms and Conditions occur and ask that you regularly refer to our website. Our continued engagement following the updating of these Terms and Conditions will constitute acceptance of the updated Terms and Conditions.
Confidential information - Includes any document, information or other material which has been gathered as part of our engagement.
Chartered Accountants Australia and New Zealand - Chartered Accountants Australia and New Zealand, 33 Erskine Street Sydney www.charteredaccountants.com.au
Professional service - Means services requiring accountancy or related skills performed by us and includes accounting, auditing, taxation, management consulting and financial management services.
Revenue Authorities - Includes various levels of government authorities or similar institutions which have legislative powers to impose and, or, collect taxes.
Taxation service - Means any service relating to ascertaining a Client’s or Employer’s tax liabilities or entitlements or satisfying their obligations under a Taxation Law, provided under circumstances where they can reasonably expect to rely on those services. This includes:
Terms and Conditions – Means the terms and conditions on which we will provide services to you, as contained on this page and as amended by us from time to time.