Terms and Conditions-MSV

Terms and Conditions of Business - Moore Stephens (Vic) 

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These terms and conditions of business (Terms) apply in respect of the services (Services) to be performed by Moore Stephens (Vic) Pty Ltd trading as Moore Stephens (Moore Stephens or we or us) for the client named on the engagement letter or proposal (Client or you), both collectively referred to as the ‘parties’, and any subsequent engagement letter or proposal to which these Terms apply (Engagement Letter and Engagement) (and any update schedule which advises any changes to material terms contained in the Engagement Letter for a subsequent income year in which we provide services to you (Update Schedule). These Terms and the Engagement Letter and any Update Schedule constitute a contract (Contract) between the parties in relation to the Services.

Engaging or continuing to engage Moore Stephens to provide the Services, will confirm your acceptance of this Contract. However, for administration and legal purposes, we prefer that the Client Acknowledgement shown at the end of the Engagement Letter be signed, dated and returned to our office either electronically or by post. You should note however, that if you do not return the Client Acknowledgment, but you continue to provide instructions to us then you will be deemed to have accepted the Contract in relation to the provision of the Services.

1        Services

Moore Stephens will provide the Services described in the Engagement Letter.

1.1     Timescale

Moore Stephens will endeavour to carry out our obligations in accordance with the timescales set out in the Engagement Letter; where stated. However, unless both parties specifically agree otherwise in writing, the dates contained in the Engagement Letter are indicative dates intended for planning and estimating purposes only and are not contractually binding. Any estimates of time for completion of the Services are given on the assumption that Moore Stephens receives co-operation, diligence and commitment from you or your designated representatives (including employees, contractors and consultants) who are required to provide us with accurate and complete information in a timely manner as may be requested by us from time to time in relation to the provision of the Services. For the avoidance of doubt, Moore Stephens will not be liable for any failure or delay in performing the Services if that failure or delay arises from anything beyond Moore Stephens’ reasonable control – including the untimely provision of information or the provision of incomplete or incorrect information by you or your designated representatives.

1.2     Changes to Services

Either of the parties may request changes in writing to the scope of Services as set out in the Engagement Letter. Both parties agree to work together to enable both parties to assess the impact of any requested changes on the cost, timing and any other aspect of the Services.  

1.3     Moore Stephens Engagement Team

Where specific Moore Stephens partners, employees or consultants (Moore Stephens Personnel) are named in the Engagement Letter, Moore Stephens will use reasonable efforts to ensure that these people are available to provide the Services. Where any changes in Moore Stephens Personnel allocated to the Engagement are necessary, Moore Stephens will give you reasonable notice of the changes. Moore Stephens Personnel have been allocated to the Engagement based upon Moore Stephens’ assessment of the levels of experience, skills and responsibility required to perform the Engagement.

2        Information

You agree to provide in a timely fashion all information and documents reasonably required to enable Moore Stephens to provide the Services. Unless otherwise stated in the Engagement Letter or directly requested by you in a written communication at a later time, Moore Stephens will not independently verify the accuracy of such information and documents and will not be liable for any loss or damage (including direct or indirect and consequential loss) arising from any inaccuracy or other defect in any information or documents supplied by you.

3        Fees and Payment

3.1     How fees will be calculated

Moore Stephens’ fees are calculated on the basis of time spent on the assignment by our Moore Stephens Personnel in accordance with hourly rates current at the time the Services are performed. A schedule of rates for Moore Stephens Personnel allocated to your Engagement and/or rates for all Moore Stephens employees can be provided upon written request. Unless otherwise stated, any total quantum of fees indicated in the Engagement Letter are indicative estimates only based upon the preliminary information provided by you and our experience with similar and/or your previous Engagements. Any fees quoted are not fixed, unless otherwise specifically stated and Moore Stephens reserves the right to render fee invoices for an amount based upon actual time spent as recorded by us, greater than any quantum indicated in the Engagement Letter.

3.2     Performance

Moore Stephens’ performance is dependent on you carrying out your responsibilities as set out in the Contract and you providing all information reasonably requested by Moore Stephens in a complete and timely manner. Should this not occur, it may lead to an increase in fees depending upon the extent to which Moore Stephens has to perform more work or reschedule commitments to deliver the Services. Alterations to the scope of Services or delays beyond the control of Moore Stephens may require a reallocation of Moore Stephens Personnel for the Engagement and a renegotiation of fees.

3.3     Expenses

All professional fees are exclusive of expenses and disbursements unless the Engagement Letter states otherwise. You agree to pay Moore Stephens’ reasonable travel, accommodation and document handling costs (photocopying, scanning and imaging, printing, fax and courier, etc.) incurred in connection with the Services. Any special expense arrangements will be as agreed and set out in the Engagement Letter.

3.4     Payment of invoices

Moore Stephens’ tax invoices will be issued on a monthly basis or as set out in the Engagement Letter. Moore Stephens reserves the right to issue tax invoices at more or less frequent intervals. All tax invoices will be due for payment as stipulated on the tax invoice but in no event greater than fourteen (14) days from the date of the tax invoice. All tax invoices will be rendered with relevant client details and a summary of Services performed and the time period over which the Services have been performed.

Detailed time records however, will not be provided on the tax invoice. If you wish to receive a break-down of time entries this may be requested in writing within seven (7) days of the issue of the tax invoice.

Except where you are a consumer, as defined in the Competition and Consumer Act 2010 (Cth) (CCA) (Consumer) any dispute in relation to time entries or records will not be recognised and acted upon unless notified to us within seven (7) days of you receiving details of the time incurred and invoiced.

Moore Stephens retains the right to charge interest on tax invoices which are not paid by the due date. Interest will be calculated daily at a rate of 2% above the rate prescribed from time to time by the Penalty Interest Rates Act 1983 (Victoria).

Moore Stephens reserves the right to recover all default costs and enforcement expenses in the event tax invoices are not paid by the due date and recovery action is necessary.

You agree that Moore Stephens will hold a general lien over all files, papers and documents belonging to you (Documents) which are in Moore Stephens’ possession or control as security for all outstanding amounts owed by you to Moore Stephens including without limitation unpaid tax invoices, interest, default costs and enforcement expenses (Outstanding Amounts) until all Outstanding Amounts are paid in full to Moore Stephens.

3.5     GST

Moore Stephens’ fees and charges referred to in the Contract are exclusive of GST, unless stated to be GST-free where you are a non-resident and our Services are provided to you overseas or are otherwise not a taxable supply under the relevant GST legislation. Any applicable GST will be added to our professional time and shown in your tax invoice and must be paid at the same time that you pay for the GST-exclusive professional time charged in your tax invoice.

4        Term and Termination

4.1     Duration of Contract

This Contract will apply from the date that you sign and return the Client Acknowledgment contained at the end of the Engagement Letter or otherwise provide instructions for us to proceed with the Engagement (Commencement Date).

The Contract will continue until it is terminated in writing by either party or in accordance with the terms set out below.

4.2     Termination

The Contract may be terminated immediately by either party by providing written notice to the other party if the other party fails to remedy a material breach of the Contract within ten (10) days of receiving written notice of that breach from the other party.  Such written notice must particularise any breach of the Contract.

If the Contract is otherwise terminated without cause prior to the scheduled completion of the Services, then Moore Stephens shall be entitled to be paid for all fees, disbursements and expenses which have been carried out or incurred up to the date of termination.

5        Confidentiality

5.1     Subject to clause 5.2, both parties agree to take reasonable steps to maintain (within their respective organisations or otherwise) the confidentiality of any proprietary or confidential information of the other party. The Moore Stephens privacy policy is contained on the Moore Stephens website (www.moorestephens.com.au/privacy-policy) or can be provided to you upon request (Privacy Policy).

If you wish to provide third parties with copies of Moore Stephens reports, letters, information or advice, you must first obtain the written permission of Moore Stephens to disclose the document(s) or information (please note our copyright as referred to in clause 13.1 herein).

Moore Stephens also reserves the right to:-

a.       set the terms upon which those copies are given or used by you or by a third party; or

b.       require the third party and any employees or contractors of the third party to enter into a standard form deed poll of confidentiality.

5.2     Subject to section 275(7) of the Personal Property Securities Act 2009 (Cth) (PPSA ), it is hereby agreed that neither party will disclose information of the kind mentioned in section 275(1) of the PPSA to a third party

6        Exclusions and limitation of liability

6.1     Moore Stephens will use the objective standard of reasonable skill and care required by law in the provision of the Services as referable to the types of Services provided.

6.2     Except only for those rights and remedies that you have as a Consumer in respect of the Services under the CCA and similar state and territory laws applicable to Consumers which cannot lawfully be excluded, restricted or modified:

a.       all conditions, warranties and consumer guarantees, whether statutory or otherwise, are excluded in relation to the Services; and

b.       subject to clause 6.3 and otherwise to the greatest extent allowed by law, the liability of Moore Stephens in respect of all claims, actions, demands, proceedings, liabilities, damages, amounts, costs, losses and expenses (including legal costs and disbursements on a solicitor and own client basis) arising, paid, suffered or incurred by you (directly or indirectly) as a result of or in connection with a negligent act or omission by Moore Stephens, or any breach or non-performance of any express or implied obligations by Moore Stephens under these Terms shall be limited, at Moore Stephens’ option, to either re-supplying the Services or paying the cost of having the Services re-supplied (Liability Cap).

6.3     If you are a Consumer, the liability of Moore Stephens will not be limited to the Liability Cap contained in clause 6.2 if it is not ‘fair and reasonable’ for Moore Stephens to rely on such limitations in accordance with sections 64A(3) and (4) of Schedule 2 of the CCA but only if the Services supplied are services ‘of a kind ordinarily acquired for personal, domestic or household use or consumption’ as that expression is used in Schedule 2 of the CCA or in relation to any guarantee pursuant to any of sections 51, 52 and 53 of Schedule 2 of the CCA.

6.4     This clause 6.4 applies only to the extent that clauses 6.2 and 6.3 do not apply. The parties acknowledge that the Australian Professional Standards Legislation (Professional Standards Legislation) including the Treasury Legislation Amendment (Professional Standards) Act 2004 (Cth), may apply in accordance with its terms in relation to our maximum liability for loss or damage arising from or in relation to the provision of the Services.

To the extent permitted by law, if, under any applicable Professional Standards Legislation, our maximum liability for loss or damage arising from or in relation to the Services would be:

a.       A higher amount than the Liability Cap, then the Liability Cap will not apply and our maximum liability will be calculated in accordance with the Professional Standards Legislation.

b.       A lower amount than the Liability Cap, then the Liability Cap will not apply and our maximum liability will be calculated in accordance with Professional Standards Legislation.

6.5     Should you require further information on the application of the Professional Standards Legislation scheme in relation to this Contract, please ask us to provide you with information before you sign and return the Client Acknowledgment contained with the Engagement Letter.

7        Indemnity for Liability to third parties

7.1     You agree to indemnify Moore Stephens against all actions, demands, liabilities, proceedings, claims, costs, losses, suits or expenses (including legal fees on a solicitor and own client basis and disbursements) incurred by Moore Stephens in respect of any third party claim and whether grounded in tort, contract or statute law (Claim) which is related to, arises out of, or is in any way associated with, the Contract. However, the indemnity does not apply to any Claim in respect of any matters which are finally determined to have resulted solely and directly from Moore Stephens’ negligent or wilful acts or omissions.  

7.2     You agree to indemnify Moore Stephens, its partners the Moore Stephens Personnel, associates, contractors and any other person who may be sought to be made liable in excess of the Liability Cap (or the maximum liability as determined where clause 6.4 applies) on a full indemnity basis in respect of any Claim arising from or connected with the Engagement where you or persons for whom you are allegedly or actually vicariously liable cause any of the loss, costs or damages arising under the Claim.

7.3     Moore Stephens holds the benefit of the indemnities in clauses 7.1 and 7.2 on trust for itself and its partners, employees and contractors.

8        Personal Property Securities Act 2009 (PPS Law)

8.1     For the purposes of this clause 8, PPS Law means:

a.       the PPSA;

b.       any regulations made at any time under the PPSA;

c.       any provision of the PPSA or regulations referred to in (b) above;

d.       any amendment to any of the above, made at any time; or

e.       any amendment made at any time to any other legislation as a consequence of a PPS Law referred to in (a) to (d) above.

8.2     If at any time we determine that this Contract (or any of the transactions contemplated by or under it) creates a ‘security interest’ (as defined under the PPS Law) over any of your personal property granted or deemed to be granted in our favour, then you must promptly, upon our request, do all things necessary (including, without limitation, completing, signing and providing documents, obtaining consents and supplying information) to:

a.       protect any right, title and/or interest of ours in the relevant personal property under the security interest;

b.       ensure that any such security interest in favour of us;

(i)         is enforceable, perfected (including, where applicable, by control as well as by registration), maintained and otherwise fully effective; and

(ii)      ranks as a first priority security interest wherever that is possible;

c.       enable us to prepare and register a financing statement or a financing change statement; and

d.       enable us to exercise any of our rights or perform any of our obligations in connection with any such security interest or under the PPS Law.

9        Access to working papers

9.1     The working papers for the Engagement, including electronic documents and files, are the property of Moore Stephens and constitute confidential information.

9.2     We will notify you as soon as practicable (unless restricted by law) where we receive a legally mandatory notice or request for access to our working papers from a third party (for example, the ATO or ASIC). If legal advice is required as to whether any information or documents may be subject to either legal or accountants’ professional privilege and may be retained and not provided to the third party, then all costs for such advice will be the Client’s responsibility.

9.3     As a major accounting firm, we are subject to the Quality Control Review Program conducted by The Institute of Chartered Accountants in Australia and other regulatory bodies. We are also subject to external audit review in connection with our registration in accordance with the relevant quality standard accreditation. The work we perform for you may be selected by the examiners for review. If you object to being included in the review process, please let us know at the time we notify you that the work performed under the Engagement has been selected for review.

10      Privacy

10.1   We understand the importance of protecting the privacy of your personal information. In handling personal information, we comply with the Privacy Act 1988 (Cth) (Privacy Act), as amended from time to time, and with the Australian Privacy Principles.

10.2   We collect, use, disclose, store and otherwise handle your personal information in accordance with our Privacy Policy, a copy of which can be found on our website or otherwise made available to you upon request.

10.3   Generally, we collect and use your personal information for the purposes of providing you with the Services and any associated accounting, taxation and financial professional services or other lawful and reasonable business uses as set out in our Privacy Policy. A failure to provide your personal information may affect our ability to assist you. Generally, the kinds of personal information we collect include your name, address, telephone number, email address, financial information, and details of superannuation arrangements, where relevant and necessary for the provision of the Services to you.

10.4   We may also use your personal information for the purpose of providing marketing or training information to you. This may include newsletters and invitations to seminars or other events. Please let us know if you do not want this information to be sent to you.

10.5   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.

10.6   If you would like to access, or seek correction of, the personal information we collect and hold about you, or otherwise enquire or complain about our approach to privacy, please contact our privacy compliance officer at privacyofficer@Moore Stephens.com.au. Our Privacy Policy contains further information about these processes.

10.7   You acknowledge that you have read and understood our Privacy Policy and you agree to us collecting, storing, using, correcting, disclosing and otherwise handling your personal information for the purposes of providing the Services to you and/or for any other purpose set out in the Privacy Policy or otherwise in accordance with law.

11      Relationship with other clients

We provide Services to other clients, some of whom may be in competition with you or have interests which conflict with your own. We will not disclose any of your personal information, or any confidential personal or business related information that may come into our possession as a result of the Contract, to those other clients. However, our relationship with you, and our provision of the Services to you under the Contract does not and will not prima facie prevent or restrict us from providing Services to other clients.

12      Use of software

We may use or develop software, including spreadsheets, databases and other electronic tools (Tools) in providing the Services. If we provide these Tools to you, you acknowledge that (except where these Tools are a specific deliverable under the Contract and where ownership passes to you on payment of any fees) they are not your property, were developed for our purposes and without consideration of any purpose for which you might use them, are made available on an “as is” basis for your use only and must not be distributed to or shared with any third party.

We make no representations or warranties as to the sufficiency or appropriateness of the Tools for any purpose for which you or a third party may use them. Any Tools developed specifically for you will be covered under a separate Engagement Letter.

13      General

13.1   Intellectual Property Rights

All copyright and other intellectual property rights in all materials and tools (including software Tools and working papers), data, designs, models, methodologies, analysis frameworks, practices, ideas, concepts and techniques brought to the Engagement or created in the course of the Engagement of Moore Stephens shall remain and be irrevocably vested in Moore Stephens’ ownership and control absolutely.

13.2   Severance

a. If a provision in these Terms is held by a court to be wholly or partially void, illegal or unenforceable, then that provision or part thereof must, to that extent, be treated as deleted and severed from these Terms. This severance will not affect the validity or enforceability of the remainder of the provisions contained in the Contract.

b. Clause 13.2(a) above does not apply and has no effect to the extent that such severance of the provision of these Terms materially affects or alters the nature or effect of the parties’ obligations under these Terms such that performance of those obligations is frustrated or impossible to perform.

13.3   Variation

These terms may only be varied by written agreement of the parties.

13.4   Non-Solicitation of Personnel

During the Contract, and for six (6) months after it ends, you agree not to solicit for employment or contractual consultancy purposes, whether on a part time, full time or casual basis, or to independently contract the services of, any Moore Stephens partner, employee or contractor of Moore Stephens who is involved with performing the Services, without Moore Stephens’ prior written consent. This prohibition applies to both contracts of service (employees) and contracts for services (contractors).

If:

a.       we provide you with our prior written consent;

b.       you offer an employment or consultancy contract to one of our partners, employees or contractors; and

c.       the partner, employee or contractor accepts your offer,

then you agree to pay a recruitment fee to us, calculated at 30% of the relevant partner, employee or contractor’s gross annual salary package.

13.5   Miscellaneous

Moore Stephens will provide the Services as an independent contractor. Nothing in the Contract shall be construed as creating a relationship at law of partnership, joint venture, trust or other relationship between the parties except as independent contracting parties operating under the Contract. No party has the right, power or authority to oblige or contractually bind the other in any manner unless expressly agreed in writing.

13.6   Governing Law & Jurisdiction

All aspects of the Services and the Contract are governed by, and construed in accordance with, the laws of the State in which this Engagement Letter is issued and the parties irrevocably submit to the exclusive jurisdiction of the Courts of that State including Federal Courts entitled to consider appeals from those State courts where relevant within that State.

13.7   Dispute Resolution

If there is a dispute relating to the Services or the Contract, the parties will firstly attempt to resolve such dispute in good faith and failing that submit to mediation before having recourse to any other dispute resolution process. Written notice of the dispute must be given to the other party for it to be submitted to mediation before a mediator chosen by the parties or, where the parties cannot agree on the identity or terms of engagement of a mediator, then as selected by the Australian Commercial Disputes Centre (ACDC). The parties will use their best endeavours to settle the dispute promptly. The mediation will be conducted in accordance with the ACDC Mediation Guidelines to the extent that they do not conflict with the provision of this clause.

If the dispute is not resolved within 90 days after notice of the dispute is first made or such further period agreed between Moore Stephens and the Client, then the mediation will terminate.

13.8   Electronic Communication

We may communicate with you electronically from time to time, including 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. You can make this request by contacting our Privacy Officer whose contact details can be found in our Privacy Policy or through selecting and submitting an ‘unsubscribe’ notice to us.

Moore Stephens may communicate with you electronically. Electronically transmitted information cannot be guaranteed to be secure or error or virus free and it may be unsafe to use or cause damage to the effectiveness of your software or computer network or systems. Moore Stephens will use commercially reasonable procedures to check for the most commonly known viruses before sending information electronically, but will not be liable to you or any of your associates in respect of any error, virus or omission or loss of confidential information arising from or in connection with the electronic communication of information to you. You may elect, in writing, not to permit Moore Stephens to communicate electronically with you.

14      Other Firms and entities part of Moore Stephens Australia and New Zealand network

14.1   You will not bring any claim (whether in contract, tort (including negligence) or otherwise) against any other Moore Stephens network Firm or its personnel in respect of the Services. The Moore Stephens network includes firms which are associated under the Moore Stephens banner but are not economically associated or under any common control with Moore Stephens.  Any Partner or employee of another Moore Stephens network Firm who deals with you in connection with the Services does so solely on our behalf. This clause does not apply if prohibited by the Corporations Act 2001 (Cth).

14.2   The benefit of clause 14.1 is expressly held by Moore Stephens for the benefit of other Moore Stephens network Firms and their personnel (together “the beneficiaries”). You agree that each of the beneficiaries has the right to rely on this clause as if they were parties to this Contract. Each Moore Stephens network Firm which agrees to assist in the provision of the Services does so in reliance on the protections afforded to it by this clause 14.

15      Health and safety

We are required to comply with the provisions of relevant occupational health and safety legislation (OHS Laws) by taking all practical steps to ensure the health and safety of our employees and the Moore Stephens Personnel. However, the OHS Laws place the responsibility for their safety on you when our employees visit your business site.

16      Contract

16.1 Clauses 16.1(a) and 16.1(b) shall not apply to a Consumer under the CCA.

a.       These Terms:

(i)       supersede and exclude all prior and other discussions, representations (contractual or otherwise) and arrangements relating to the supply of the Services including, but not limited to, those relating to the performance of the Services or the results that ought to be expected from using the Services; and

(ii)      override any quotes, invoices or other documentation exchanged between the parties whether or not such documents expressly provide that they override these Terms.

b.       Unless Moore Stephens otherwise agrees in writing, these Terms are the only terms which shall apply to the Services supplied by Moore Stephens. The specific terms of any Engagement Letter and/or Update Schedule issued to advise of material variations from a previous Engagement Letter for subsequent income years that Moore Stephens is engaged to provide Services for, will be deemed to be incorporated into and subject to these Terms. In the event of any inconsistency, the specific terms contained in the Engagement Letter or Update Schedule will override these Terms but only to the extent of that inconsistency. In all other cases these Terms and the terms of an Engagement Letter or Update Schedule are to be read and construed as forming one contract at law.

17.     Successors and Assigns

17.1   This Contract binds and enures for the benefit of the parties and their respective legal representatives, successors and assigns.