Terms and Conditions
1. This Agreement
- These Terms and Conditions of Engagement (Terms) together with the Engagement Letter and any attachments shall be read together and constitute the entire agreement (the Agreement or Engagement) between the Client (or you or your as appropriate) and William Buck (or we, us or our as appropriate).
- William Buck is the entity identified in the Engagement Letter and all its related entities.
- The Client comprises the addressee together with the individuals and entities set out in the Engagement Letter and will also include any other related entities as agreed in writing with you from time to time.
2. Our Services
- The Services to be provided by William Buck are set out in the Engagement Letter.
- Variations to the Services or additional services may be required of us from time to time that may not be specifically mentioned in the Engagement Letter. For example, variations to the scope of the Engagement may arise through discussion at meetings, telephone conversation, email or letter. It is agreed that any such variations or additions will be fully covered by these Terms.
- If additional or new work is requested to be performed, the decision as to whether or not we will undertake that work and the terms by which it will be undertaken is at our discretion.
- We will provide the Services to you with the degree of skill, care and diligence expected of a professional providing services of the same kind and we will use all reasonable efforts to complete the Services within any agreed timeframe.
- We are entitled to rely on all your decisions and approvals made independently of this Engagement, and unless it is expressly agreed to in the Engagement Letter or is required by law, nothing in this Engagement requires us to evaluate, advise on, modify, confirm, or reject such decisions and approvals.
- Any advice that we give you will be based on the law as it is on the date of the advice. We accept no responsibility for changes in the law, or its interpretation by courts, boards and tribunals, which occur subsequent to the date on which the advice is given to you.
- Nothing in our Engagement with you or statements made to you shall be construed as a promise or guarantee about the outcome of any matter.
- In order for us to perform the Services in a timely and efficient manner, we require your co-operation, including arranging access to third parties and making any relevant party available for consultation upon our request.
- The Services will be provided solely for your benefit and use, unless otherwise indicated in the Engagement Letter. Any advice or opinion arising out of the Services may not be disclosed in any way, published by any means (including through electronic media), to any other third party, save for those persons who have a direct and material interest in the advice or opinion.
- In the course of providing the Services, we may provide you with oral comments, draft reports or advice, presentations, letters and other documents. You must not rely on such drafts or oral communications, or advice as they may be subject to further work or revisions, and hence the drafts may substantially differ from the final advice. The final advice or report will take precedence.
- We are under no obligation to update any advice or report in respect of matters arising after the final advice or report has been issued to you.
5. Our Team
- We will attempt to comply with any reasonable requests for specific individuals to work on the Engagement, however, we are ultimately responsible for assigning and re-assigning our personnel, as appropriate, to perform the Engagement.
- During this Engagement, and for a period of twelve months following the finalisation or termination thereof, neither party will actively solicit the employment of the personnel of the other party directly involved with the Services.
6. Outsourced Service Providers
- The engagement, termination and replacement of the OSP will be by us on terms and conditions that we determine, negotiate and/or accept. We will be responsible for the fees, charges and expenses of that OSP which fees, charges and expenses will be absorbed into and become part of your fees and/or disbursements.
7. Intellectual Property
Any intellectual property rights in any documentation, material, report, process, procedure, methodology, trademark, copyright, financial model, research or software brought to the Engagement by us, or developed or created as a result of, or in the course of the Engagement or provision of the Services, remains with or vests in us as our absolute property.
8. Our Fees
- Our fees (whether hourly, an agreed or capped fee or other basis of charging) are dependent upon:
- The timely and effective completion of your responsibilities;
- The accuracy, completeness and reliability of representations and information provided by you;
- Timely decisions and approvals by you or your management; and
- Where Services are required to be performed otherwise than at our premises, furnishing our personnel with a suitable and safe (from a work health & safety perspective) office environment and adequate resources and supplies needed to complete the Engagement.
- All fees are quoted exclusive of GST.
- Where a Scope of Services and Fee estimate is included in or attached to the Engagement Letter then, provided the scope does not change, our fee is as set out in or attached to the Engagement Letter.
- In all other instances, including if the scope changes or additional or new work is to be performed, then unless another fee arrangement is agreed in writing, our fees will be based on time spent on that work in accordance with our hourly rates applying at the time. When we revise our hourly rates, any work performed may be charged at the revised hourly rates.
- We will not be responsible for any delays, additional costs, or other liabilities caused by or associated with any deficiencies in your responsibilities, and information/representations supplied by you.
- Where we are acting for more than one client, all clients are jointly and severally responsible for our fees.
- If the Engagement is a statutory audit or review conducted for the purposes of the Corporations Act 2001, we will be entitled to extra fees for any time spent investigating circumstances that we are obliged to report upon to ASIC, ACNC or APRA.
- If we are required to attend court or produce any documentation (pursuant to a subpoena), or if we receive any legally enforceable notice or demand issued by any third party, including ASIC, ACNC, APRA, ATO, the Australian Stock Exchange, the National Stock Exchange of Australia, or any other government authority in relation to the Services, or otherwise arising out of the Engagement, you will reimburse us for any costs (including any legal costs) on a full indemnity basis incurred in that respect, including our time charged at the applicable hourly rates.
9. Payment of Fees
- It is expected that you will pay us for all fees and related expenses in accordance with the Engagement terms.
- Payment will be required within fourteen days of the invoice, unless an alternative arrangement has been negotiated and agreed.
- Our preferred means of payment is by electronic funds transfer or by internet banking. We will pass on any merchant fees to you to the extent permitted by law in respect of payment made by credit card.
- If a bill remains unpaid for longer than fourteen days or beyond the agreed alternative arrangements, from the invoice date:
- We may refuse to undertake further work until payment is received or an arrangement is made in relation to the outstanding invoices.
- Your account is outside of our trading terms and if the breach is not rectified within thirty days, we may refer your account for collection to our nominated Debt Collection Agency and/or commence legal proceedings to collect outstanding fees, and may require you to reimburse us for any costs (including debt collection, legal, court or other costs) incurred related to the recovery of your account.
- We may send you notices necessary to start the process for reporting the overdue amount to a credit reporting body in accordance with the law; and
- We reserve the right to charge interest from the invoice date on the outstanding amount until full payment at the 180 Day Bank Bill rate of interest plus 2% as quoted by the bankers to us.
10. Disbursements and Incidental Expenses
We may charge you for direct out-of-pocket expenses reasonably attributed to you such as: travel required to fulfil our obligations to you, property title, company, personal property securities and other searches of relevant external databases, ASIC fees and stamp duty.
11. Separate Accounts
We will separately account to you for all money and other property received from you or for you other than money received from you in payment of our fees for Services already rendered.
12. Questions, Objections and Feedback
- If you have any questions about, or objection to, an invoice or the basis of our fees and charges, you should raise it promptly with the Engagement Director or, if you would prefer to do so, the General Manager. You are entitled to ask for and receive an itemised bill within fourteen days of the original invoice date. If you object to a portion of an invoice, you agree to pay the remainder of that invoice and such part payment will not constitute a waiver of that objection. Your objection will be investigated by us and resolved in a timely manner. If you still have a complaint or the dispute has not been satisfactorily resolved, then you and William Buck may agree to try and resolve the complaint or dispute through a mediation process. If agreement is not reached within fourteen days of the dispute arising (and sub-clause (b) below does not apply) either William Buck or you, may exercise all legal rights in respect of the dispute as each shall be entitled.
- If both parties agree to try and resolve the complaint or dispute by mediation it will be conducted before a mediator nominated by the President for the time being of the Chartered Accountants in Australia and New Zealand (“CAANZ”); shall be commenced and concluded in no more than thirty days from when the parties agree to refer the dispute to Mediation; and pending expiry of that period neither party shall commence any court proceedings in relation to the dispute (save for urgent interlocutory orders if the circumstances require). All costs of the mediation (mediator and facilities) shall be shared equally (except that both parties will bear their own costs).
- If you wish to make a complaint regarding the quality of our Services, please contact the Engagement Director in the first instance or the Managing Director, as appropriate. If you remain dissatisfied with the way your complaint has been handled, you can report the matter to CAANZ.
13. Force Majeure
If the performance of the Services is delayed or prohibited by any circumstance or event which, despite using all reasonable endeavours, we are unable to control, including any act of God, flood, fire, damage caused by lightning, storm or tempest, rains falling during normal dry seasons, labour disputes, acts of war or terrorism, pandemics, civil disturbance or enactments of any government agency relating to the Services, then you excuse us from performing the Services to the extent so affected.
- Confidential information means all:
- Information and documents concerning or relating to the Services and/or your personal and business affairs;
- Information and documents which either party to this Engagement receives or produces in respect of or arising out of the Services, including any of our working papers, documents, reports, information and methodology; and
- Any information and documents about the terms of the Engagement, but excludes any information which:
- Is or becomes generally available to the public other than as a result of a breach of this provision;
- Is known to either party prior to our commencing the Services; or
- Is received independently from a third party who owes no obligation of confidence in respect of this information.
- A party may disclose the confidential information:
- To those of its employees, officers, professional or financial advisers and bankers as the party reasonably thinks necessary but only on a strictly confidential basis; or
- If required by law or professional obligations, after the form and terms of that disclosure have been notified to the other party and the other party has had a reasonable opportunity to comment on the form and terms.
- With respect to the confidential information each party agrees to:
- Protect the confidential information in a reasonable and appropriate manner or in accordance with applicable professional standards;
- Use the confidential information only to perform its obligations under the Engagement; and
- Reproduce the confidential information only as required to perform its obligations under the Engagement.
- Subject to sub-clause (e) below, information acquired by us in the course of the Engagement is subject to strict confidentiality requirements as set out above and in accordance with our professional obligations.
- Our client files (including your files and documents) may be subject to review as part of the quality review programs of ASIC, CAANZ or CPA Australia, each of which monitors compliance with professional standards by its members or our own quality monitoring program. By signing the Engagement Letter, you acknowledge that, our files relating to the Engagement will be made available under these programs. The same strict confidentiality requirements apply under these programs as apply to us as your advisor, consultant, accountant or auditor.
- As at the date of the Engagement we do not believe we are conflicted from providing the Services. It is nevertheless possible that such a conflict may arise or may become apparent at a later time.
- If at any time we find that, while fulfilling the Engagement or our engagement with another client, an independence or conflict of interest issue has or may arise, we will work through that conflict of interest or independence issue so that the continued delivery of the Services to you will be objective and free from such conflicts. If we cannot resolve the conflict or independence issue we may be required to cease providing Services to you (and/or the other client) because of our professional obligations.
- If during the Engagement you become aware of any conflict of interest or potential conflict of interest or there is a change of circumstances which has or may result in a conflict, you must immediately advise us. Events affecting you which may give rise to a conflict of interest include deaths, matrimonial disputes, litigation (threatened or actual), material changes in the nature or structure of your business, or changes in corporate officers and/or senior management or material changes in other business relationships.
Any notices given pursuant to the Engagement will be in writing, delivered to the address or email address on file, or via a web portal (unless you notify us otherwise), and shall be considered given and received as detailed below:
You acknowledge that:
- We may correspond or convey documentation with you via:
- E-mail, which will be deemed received when the message enters your mail server;
- A web portal will be deemed received at the time that an email advising you the document is available enters your mail server;
- Post, the earlier of when received or five days after postin;g or
- Courier, which will be deemed received when recorded as having been delivered.
- Neither party has control over the performance, reliability, availability, or security of e-mail, post or courier;
- We will not be liable, and you agree to indemnify and keep us indemnified from any loss, claim, damage, expense, harm or inconvenience resulting from the loss, delay, interception, corruption, unauthorised copying, recording, interference, non-delivery or alteration of any e-mail, post or courier due to any reason beyond our reasonable control; and
- We will not be liable for and you agree to indemnify and keep us indemnified from any loss, claim or expense arising out of any damage caused to our system or files by your system or files or by any transmission (including any computer virus).
We reserve the right to exercise a lien over your files and documents (whether in paper form or electronic format) in our possession or under our control. No files or documents will be released to you until all outstanding fees are paid in full. Your files and documents will, at our election, be retained in safe custody or returned to you upon completion of the Services. The files and documents retained will be archived for a period of 7 years (or such shorter period of time as you may direct, or the law and/or professional standards permits) after which they will be destroyed unless you direct us in writing to the contrary.
18. Third Party Services and Products
In the event that the Engagement Letter refers to a Third Party Provider(s) (TPP) this clause is applicable:
- To fulfil the Engagement, we may engage at our discretion, a TPP.
- We will be responsible for the fees, charges and expenses of that TPP which fees, charges and expenses may be absorbed into and will become part of your fees and/or disbursements, unless otherwise identified.
- The engagement, termination and replacement of the TPP will be by us on terms and conditions that we determine, negotiate and/or accept.
- You acknowledge that the terms and conditions upon which we have retained a TPP may vary from time to time and it is within our discretion whether to accept or decline to vary those terms and conditions.
- You acknowledge that it is sufficient advice of the TPP’s terms and conditions if we supply the website address for the TPP’s terms and conditions and privacy policies if requested by you.
- We do not warrant the performance of a TPP and will not be held responsible for any direct or indirect loss or liability that may arise by your utilisation of the Services of a TPP whether through us or otherwise.
19. Limitation of Liability
- Where the CAANZ or CPA Australia scheme (“Scheme”) has been approved under professional standards legislation in force in Australian states or territories, our liability in connection with the Services is limited in accordance with the Scheme. Legislation providing for apportionment of liability also applies.
- Where our liability is not limited by a Scheme or by law, you agree our liability for all claims connected directly or indirectly with the Services (including claims of negligence) by you or any third party through you in respect of the Services will be limited to the lesser of:
- Ten times the fees paid or payable to us in respect of the Services; and
- In the case of the supply of products either the replacement of the parts of those products or the cost of their replacement with similar products; and
- In the case of the Services, to the re-supply of the Services or the cost of obtaining similar services to the Services.
- To the extent permitted by law, we will not be liable to you for any indirect or consequential loss including loss as a result of corruption of data, loss of profit, goodwill, business/investment opportunity or anticipated savings or benefits.
- Where more than one client is identified in the Engagement Letter, or, as the circumstances provide, we have been asked to advise associates, the limits on our liability will be allocated between each of them without prejudice to the Scheme cap or other limit on liability set out above. Such allocation is a matter for you.
- We will not be liable for any statutory penalties, interest or similar charges imposed by any Government or Statutory Authority that arise because of actions by you that delay our performance of the Services, including not providing information in a timely manner, or that arise in relation to obligations that do not fall with the scope of the Services that we have been engaged to perform.
20. Claims Against Employees
You agree not to bring any claim directly against any officer or employee of William Buck in connection with the Services arising in negligence but excluding claims for fraud or dishonesty. Each such officer or employee (past, present or future) may rely on this provision as if they were each a party to the Engagement Letter.
21. Compliance with Australian Law
As your professional advisor we act in your best interests, however, we are bound to act in accordance with Australian law, including but not limited to statute, common law, all rules, regulations, and any other requirements affecting tax practices, even where doing so, is acting contrary to your interests. For example, we must comply with statutory notices from the ATO, ASIC or the ACNC, which may require payment of money we are holding on your behalf and/or the production of documents or the provision of information.
22. Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth) ("AML/CTF Act")
- You acknowledge that we may have obligations under the AML/CTF Legislation to keep records and to make reports to regulatory authorities or law enforcement agencies about you or any agent acting on your behalf; the Services provided to you; or transactions in which you are involved; and not to inform you or provide you with access to any information that could inform you of the disclosure of your information to any relevant regulatory authorities or law enforcement agencies.
- You acknowledge that, under the AML/CTF Act, William Buck and any of its directors, employees or agents will have no liability to you or any person for anything done or omitted to be done in good faith by any of them:
(i) in carrying out an applicable client identification procedure under the AML/CTF Act; or
(ii) in fulfilment or purported fulfilment of a requirement of the AML/CTF Act not to provide a Designated Service or not to continue to provide a Designated Service; or
(iii) in compliance or purported compliance with any other requirement under the AML/CTF Legislation made under it.
- We respect your privacy and are committed to treating the personal information we collect in accordance with the Australian Privacy Principles in the Privacy Act 1988 (Cth) as amended, the General Data Protection Regulation (GDPR) where applicable and APES 110 The Code of Ethics for Professional Accountants (including Independence Standards).
- You authorise us to collect, retain, record, use and disclose your personal information, in accordance with the Privacy Act 1988 (Cth), to persons and/or legal entities who are a solicitor, or any other professional consultant engaged by us, a debt collector, credit reference organisation and/or any other individual or organisation that maintains credit references and/or default listings.
- You authorise us to make enquiries with respect to your credit worthiness, to exchange information with other credit providers in respect to previous defaults.
24. Termination of the Engagement
- Either of us may terminate the Engagement:
- At any time by giving the other thirty days’ written notice; or
- Immediately if the other suffers an Insolvency Event, is unable to pay all of its debts as and when they become due and payable, suspends payment of such debts or otherwise ceases to carry on business; or
- Immediately if the other commits any material breach of this Agreement that is either incapable of being remedied or is not remedied within fourteen days of receipt of a notice required the breach to be remedied.
- Subject to any statutory provisions that apply to the Services, we also reserve the right to cease acting for you if we perceive at our discretion that the necessary relationship of mutual trust, independence or confidence required for a mutual, workable business relationship no longer exists.
- You must pay us for all Services rendered, and expenses incurred up to the date of termination, plus any other expenses associated with the transfer of information to a new advisor or other agents as appointed by you.
- Upon termination and payment of all outstanding fees and disbursements, all papers, documents and property that you have provided to us, will, at your request, be returned to you promptly. Copies of papers and documents we have created for you, which you may need but no longer have, will be made available to you at a cost to you. Our drafts, working papers and internal memoranda and communication (whether paper or electronic format) belong to us.
- Where the termination relates to an agreed fee or capped matter that is part performed by us it is within our discretion, acting reasonably, to apportion the Services and their value between that which has been performed and that which has not yet been performed. You agree to pay the value of that which has been determined as payable in relation to that part of the Services that have been performed up to the date of termination.
- Upon the termination, we are released from further performance of the Services.
- Termination will be without prejudice to any accrued rights before the termination.
- The confidentiality, liability and indemnity provisions in these Terms survive the termination.
25. Applicable Law
The Services and the Engagement are governed by the laws of the state in which the William Buck office performing the Services is located . Each party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts of that state .
26. Auditor's Independence
In the case where we are your external auditor, you:
- agree to inform all officers and audit-critical employees (as those terms are defined in the Corporations Act 2001) of you and your associated entities that they may not be employed by, or provide Services to, us while we are your external auditor;
- agree that you will seek our consent before appointing a former director or former professional employee of William Buck as your or your associated entity’s officer or audit-critical employee. You acknowledge that we will not consent to such appointment where the appointment would cause us to be in breach of applicable independence restrictions; and
- confirm you have obtained audit committee pre-approval, to the extent required, for any non-assurance Services.
- No Terms shall be deemed waived, and no breach of these Terms excused, unless the waiver or consent is in writing signed by the party granting such waiver or consent.
- Unless otherwise provided in the Engagement, the Engagement does not create any rights in favour of or liabilities to any third party.
- If there is any inconsistency between a provision in these Terms and a provision of the Engagement Letter, the provision of the Engagement Letter will prevail to the extent of the inconsistency.
- In the event that a signed Engagement Letter is not returned by you, by continuing to instruct us you shall be deemed to have agreed to these Terms.