Terms and Conditions
ESV Accounting and Business Advisors ABN 54 688 507 374 (ESVABA)
STANDARD TERMS AND CONDITIONS RELATING TO PROFESSIONAL ENGAGEMENTS
Effective from June 2019
1. THESE TERMS AND CONDITIONS
This page contains the terms and conditions (Terms) that apply in respect of the professional services we are engaged to provide to you (Services), and which are to be read in conjunction with the engagement letter we issued to you (Engagement Letter). Where there is any inconsistency between the Engagement Letter and these Terms, the Engagement Letter will prevail to the extent of the inconsistency.
For the purposes of these Terms, unless the context otherwise requires—
- any reference to “we, us, our” is a reference to ESVABA
- any reference to “you, your” is a reference to the party or parties that have engaged us to provide Services, and
- certain capitalised terms used in these Terms have the meaning given to them in clause 31.
These Terms together with the Engagement Letter constitute the terms of our engagement to provide the Services to you (Agreement). References to the “Agreement” in these Terms is a reference to either or both the Terms and the Engagement Letter, as the context requires.
2. LEGAL ADVICE
We suggest you obtain independent legal advice on all questions you may have in relation to the Agreement, and in particular, the limitation of liability provisions contained in the Agreement.
You will be taken to have accepted the Agreement, including these Terms, on the earlier of the date—
- that you sign and return the ‘Acknowledgement Advice’ to us, which is attached to the Engagement Letter
- you otherwise advise us in writing, or
- you provide us with instructions after the date of the Engagement Letter.
The Agreement will terminate when either—
- we have completed providing Services to you, or
- the provision of Services is terminated either by you or by us,
and you have paid us fees rendered in respect of Services provided in respect of the Agreement and any other outstanding amounts.
4. TERMINATION OF SERVICES
You may choose to terminate the Agreement 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 the Agreement at any time by giving you reasonable notice or if our fees are not paid when due.
5. CONFLICTS OF INTEREST
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 us under the applicable circumstances.
6. OUR SERVICES
We will provide the Services to you in accordance with the Agreement and with the degree of skill, care and diligence expected of a professional firm delivering similar kinds of services.
From time to time you may request additional services from us. Where we agree to provide these services to you, they will be governed by our existing Agreement as amended to incorporate the scope of work for the additional services, unless a separate Agreement if formed between us following a separate engagement letter being issued by us in respect of those additional services.
In providing the Services, we may provide oral, draft or interim advice, reports or presentations to you for your information and comments. In these circumstances, you acknowledge that our final written advice or final written report signed by an ESVABA partner shall take precedence. No reliance should be placed by you on any draft or interim advice, reports or presentations.
Where you wish to rely on any oral advice, draft report or oral presentation, you must obtain our prior written consent for such reliance which we may provide in our sole and absolute discretion.
We are not obliged, regardless of the circumstance, to update any advice or report, oral or written, for events occurring after the advice or report has been issued in final form.
Any advice or opinion that we provide will be based on the law effective as at the date of the advice or opinion or report. We do not accept any responsibility for any changes in the law, and or in its interpretation, which occur after such date. This includes any changes in the law or its interpretation which take effect retrospectively.
No actions taken by us and/or statements made in the course of our engagement may be taken as a promise or guarantee to you about the outcome of any matter.
No advice we provide to you can, is intended to, nor will it, constitute legal advice and it should not be relied upon by you as such.
Unless otherwise agreed with you, the advice we give cannot be relied upon to disclose irregularities, including fraud and other illegal acts and errors that may exist.
7. TAXATION SERVICES
Where the Agreement involves the provision of 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. It is your responsibility to keep those records for five years.
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.
You may disclose our advice or opinion to third parties solely to the extent that it relates to tax matters, including tax advice, tax opinions, tax treatment or tax structure of any transaction to which the engagement relates.
Any such advice or opinion disclosed to third parties will be for information purposes only and cannot be relied upon by recipients of that information without our prior written consent. We disclaim all liability to any third party for all costs, loss, damage and liability that the third party may suffer or incur arising from or relating to reliance on any such advice or opinion that is disclosed without our prior written consent. Where Taxation Services are provided, disclosure of our advice to a third party may result in a waiver of legal professional privilege.
8. FINANCIAL SERVICES
Neither ESVABA nor any ESV Persons 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 ESV Persons to provide the financial services it is authorised to provide on its behalf to both retail and wholesale clients:
- Maree Elizabeth Macphail (authorised representative number 1243742).
- Kurt Baker (authorised representative number 1271775).
- Emmanuel Camilleri (authorised representative number 1269532).
- Nathan Rossini (authorised representative 1269530).
Any financial services provided under or in connection with our engagement will be provided by one or more of the above named persons in their capacity as an authorised representative of ESVFS and be covered by a separate engagement letter.
9. 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 the Agreement, 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 Agreement remain our property.
We grant to you a non-exclusive, non-transferable, royalty-free licence to use and reproduce our intellectual property for any use or purpose set out in the Agreement or as otherwise agreed by us in writing.
You agree that we can use your company name, logos and marks on our reports and advice to you for the purposes described in clause 14, unless you tell us otherwise.
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 indicative estimates only provided on the basis of the preliminary information provided by you and our experience with similar engagements. 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.
We may charge additional professional fees if events beyond our control (including your acts or omissions) affect our ability to perform the Services as originally contemplated or if you ask us to perform additional tasks.
If we are required by applicable law, legal process or government action to produce information or personnel as witness with respect to the Services or the Agreement, you shall reimburse us for any professional time and expenses (including reasonable external and internal legal costs) incurred to respond to the request, unless we are a party to the proceeding or the subject of the investigation.
11. FEES PAID IN ADVANCE
Before we proceed with your matter, we may require that you deposit funds in advance into our working bank account on account of anticipated costs. In these circumstances, we will issue an invoice as work is performed and offset the amount against the fees paid in advance as incurred. If insufficient funds are paid in advance you will still be required to pay the remaining amount owing on the invoice. We may also request further deposits as our matter proceeds.
All professional fees are exclusive of expenses and disbursements which will be charged to you. Disbursements represent out-of-pocket expenses incurred by us on your behalf in connection with the Services and, unless you are requested to pay such costs directly, may include expenses relating to travel, accommodation, photocopying, courier, postage, filing fees, printing and other applicable costs.
Occasionally, we may contract with outside parties for the Services 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).
13. FEE ACCOUNTS AND TERMS
Our invoices for 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 however reserve the right to issue invoices at more or less frequent intervals. All invoices will be due for payment within 14 days of the date of our invoice.
Invoices can be paid directly to our bank account or by major credit cards. Our bank account details for payment are:
Account Name – ESV Chartered Accountants
Bank – Australia and New Zealand Banking Group Limited
BSB – 012172
Account Number – 837844889
Please include the client name and invoice number in narrations.
A credit card processing fee of 1.2% (inclusive of GST) may apply to credit card payments.
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.
Where payment is not received within 14 days of the date of the invoice, we reserve the right to impose interest at a rate of ten percent (10%) per annum for any outstanding accounts and the right to perform no further work for you until all outstanding accounts are paid in full.
We reserve the right to exercise a lien on all funds, records, documents and files held by us in relation to any outstanding payments due from you for any Services rendered by us or otherwise related.
Except as set out in these Terms, we agree to take reasonable steps to protect and maintain the confidentiality of any Confidential Information that is provided by you to us.
We will only use your Confidential Information to provide the Services to you. Where required, we may disclose your Confidential Information to professional advisers, insurers, entities to whom we are legally compelled to make disclosures to and any other parties properly authorised by you. You may make similar disclosures of Confidential Information received from us in the course of the Agreement. You agree that Confidential Information relating to any financial services provided under or in connection with this Agreement (including any advice) may be disclosed to ESVFS.
Unless required by law, we will not disclose to Revenue Authorities any opinions or written advices relating to you without your express consent and will notify you of such disclosure, if possible and provided the law does not prohibit us from doing so.
You consent to us referencing your company name and logo in proposals, submissions, tenders and marketing materials as an indication of our experience. Any such disclosure will not however disclose any information which is confidential or commercial in confidence and not in the public domain as at the date of the proposal, submission, tender or marketing collateral being prepared and issued.
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 process of the Chartered Accountants Australia and New Zealand which monitors compliance with professional standards by its members. Other regulatory bodies, including the Australian Securities and Investments Commission, may also conduct surveillance or review to monitor quality control. Additionally, as a member in Public Practice, the ESV Trust account is subject to annual audit as set out in APES 310 Dealing with Client Monies. By engaging us, you acknowledge that, if requested, our files relating to this Agreement and transactions recorded in the ESV Trust Account will be made available under these processes.
15. PRIVACY ACT
To provide the Services, we may disclose your personal information to our business partners and associates and to third parties engaged to perform administrative or other services. Any disclosure is always on a confidential basis. We may also disclose your personal information if required or authorised by law. You consent to us disclosing your personal information to our business partners and associates and to third parties when required by us to complete the Services.
16. DISCLOSURE OF ACTUAL OR SUSPECTED NON-COMPLIANCE
We may, as part of our responsibilities as a Member in Public Practice, take steps and actions as set out in section 360 of APES 110 Code of Ethics for Professional Accountants, issued by the Accounting Professional and Ethical Standards Board. During the course of our engagement, if we identify or suspect that non-compliance with laws or regulations has occurred or may occur, which may have a direct effect on material amounts or disclosures in the financial statements or compliance with which may be fundamental to the operating aspects of your business, to your ability to continue business or to avoid material penalty, we may take the following steps:
- Obtain an understanding of the matter.
- Advise the appropriate ESVABA partner.
- Address the matters with you.
- Determine with the relevant ESVABA partner whether further action is required.
- Determine with the relevant ESVABA partner whether to disclose the matter to appropriate authority.
- Ensure we have documented the actions taken in the above process.
You agree that where we consider disclosure of the above to a relevant authority is an appropriate course of action, then such a disclosure will not be considered a breach of confidentiality. Furthermore, we will only disclose information about you where we reasonably consider that we are required to do so under law. This means that your information may be disclosed to government agencies (including Australian Taxation Office under our obligations as Tax Agents under the Tax Agent Services Act (2009) or other Tax legislation or regulations) or law enforcement agencies.
17. ELECTRONIC COMMUNICATION
You agree that we may communicate with you using electronic media, including by sending you Commercial Electronic Messages (as that term is defined in the SPAM Act 2003 (Cth)). You consent to us sending Commercial Electronic Messages to you and you may opt out at any time if you no longer wish to receive these Commercial Electronic Messages from us. To opt out of any marketing communications please select the unsubscribe link contained within our marketing communications.
Further, you acknowledge that electronically transmitted information is inherently insecure, may be intercepted, may not be delivered and may contain viruses and it may be unsafe to use or cause damage to the effectiveness of your software or computer network or systems. You will take all steps to ensure that you have suitable systems in place to prevent corruption of data, or transmission of viruses in connection with the electronic communication of information to you. You agree that we will not be responsible for any loss suffered in connection with the use of such electronic communications.
18. MUTUAL RESPONSIBILITIES
You agree that either yourself or your authorised representatives will be reasonably available to confer with us upon request, will provide us with such documents and information that may be required for the performance of the engagement, will disclose all facts and circumstances of which you/they are aware that may bear upon the engagement, will promptly pay our professional fees in accordance with the Agreement 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 rely on its accuracy and completeness, subject to reasonable care.
You agree that we are not liable for any costs, loss, liability or damage either you or any other person sustains, directly or indirectly, in connection with our reliance on that information.
You agree that, during the term of the Agreement and for a period of 12 months after it ends, you will not directly or indirectly employ or engage any employee of ours who has taken part in the provision of Services to you. If you do, you agree to pay a fee equivalent to the recruitment, training and additional expenses required to replace our employee (plus GST).
The safety and wellbeing of our employees is of paramount importance to us and we are required to comply with the provisions of relevant occupational health and safety legislation by taking all practical steps to ensure the health and safety of our employees. We reserve the right to inspect your premises or any other premises where our employees will visit as part of the provision of the Services (if required). Irrespective of any inspection by us, you acknowledge that you have legal responsibility to provide a safe place of work when our employees visit your business site or another site in connection with the provision of the Services.
19. FILE RETENTION AND STORAGE
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 recipientswithout your consent.
It is our general policy to retain clients’ files for a period of seven (7) years (whether in electronic or physical form and whether internally and externally stored). After this time, we will destroy those files unless you otherwise advise us in writing.
We accept no liability for any losses you suffer if any files, including any documents or other material you leave with us, are damaged or destroyed for any reason.
20. COMPLAINTS AND DISPUTE RESOLUTION
If a dispute in connection with the Agreement arises between you and us, both parties agree to use reasonable endeavours to resolve any dispute by mediation before bringing a legal claim or starting legal proceedings against the other. Written notice of the dispute will be given for it to be submitted to mediation before a mediator chosen by the parties or, where the parties cannot agree, by the Australian Disputes Centre. The mediation will be conducted in accordance with the Australian Disputes Centre’s Guidelines for Commercial Mediation, to the extent that they do not conflict with the provisions of this clause.
21. LIMITATION OF LIABILITY
Under the Professional Standards Act 1994 (NSW) (PS Act) and the scheme approved under the PS Act (Scheme), our liability, including that of the firm, its partners, associates and employees or contractors, is limited to a maximum sum of
- $1,000,000, where the professional fee for the engagement is up to $100,000, or
- 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 PS 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 Agreement and, in particular, the limitation of liability provisions, because they may impact on your legal rights.
22. THIRD PARTIES
Subject to clause 5 of these Terms, unless we consent in writing:
- Nothing produced by us is to be used or disclosed for any purpose other than its intended purpose. It should not be referred to in any document other than as agreed, not provided to any person other than your professional advisors and representatives.
- Nothing produced by us may be relied on by anyone other than you.
- You may not name us or refer to us or our work in any written work (other than to your professional advisors) except as may be required by law.
- 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 a third party with our prior written consent. We may require such third parties to sign an agreement as to their use of our work.
- We are not liable to anyone (other than you in accordance with the Agreement) who obtains access to our anything produced by us without our prior written permission.
Both you and we agree that each of the promises and undertakings given in the Agreement are independent from one another and severable. Part or all of a provision of the Agreement that is illegal or unenforceable may be severed from the Agreement and the remaining parts of the provision or provisions of the Agreement continue in force.
In no event shall any 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 the Agreement.
We will advise you of any delays and cause. However, you agree that we shall be entitled to review our fees where such delays occur.
25. TERMS OF BUSINESS
In no event shall any 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 Services, you agree to indemnify and hold harmless all 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 the Services or the Agreement, 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 gross negligence or wilful misconduct of the ESV Persons.
You agree that you have fully considered the provisions of this section and all the other provisions of the Agreement and agree that they are reasonable in light of all factors relating to the transaction and our proposed engagement.
26. GOVERNING LAW & JURISDICTION
All aspects of the Services and the Agreement are governed and construed in accordance with 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 the Agreement may take place outside the State of New South Wales.
27. RELATIONSHIP TO CLIENT
We provide the Services under the Agreement as an independent contractor and accordingly nothing shall be construed to create a fiduciary relationship, employment, 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 without our prior written consent. We may assign this Agreement to any successor to our business without your prior written consent.
29. FORCE MAJEURE
Neither you nor we shall be liable for any breach of the Agreement (other than payment obligations) caused by circumstances beyond your or our reasonable control including but not limited to fire, floods, acts of God, terrorist acts, strikes or lock outs, war, riot or any governmental act or regulation.
30. UPDATING OF THESE TERMS
We may update and amend these Terms from time to time without notice to you. The current Terms, as updated or amended from time to time, are available on our website at https://www.esvgroup.com.au/terms-and-conditions. Our continued engagement following the updating or amendment of these Terms will constitute acceptance of the updated or amended terms.
The following terms have the following meanings when used in these Terms:
- Confidential Information—Any document, information or other material that is not in public domain, has been marked as confidential and obtained 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.
- Revenue Authorities—Includes various levels of government authorities or governmental agency or regulatory body or similar institutions which have legislative powers to impose and, or, collect taxes.
- Taxation Service—Any service relating to ascertaining your tax liabilities or entitlements or satisfying your obligations under any tax law in Australia. This includes:
- preparation of a return, notice, statement, application or other document for lodgement with a Revenue Authority and responding to requests for further information from a Revenue Authority;
- preparation of tax calculations to be used as the basis for the accounting entries in the financial statements, provision of tax planning and other tax advisory services; and
- assisting you in the resolution of tax disputes.
- ESVFS—ESV Financial Services Pty Ltd ACN 609 492 051, the holder of Australian financial services licence number 484772.
- GST—Goods and services tax.
- ESV Persons— Any or all of ESVABA, its partners, directors, staff, agents and associates, as the context requires.