Terms of Business
Terms of Business
These terms of business apply to the services you have engaged us to provide under the engagement letter. Our engagement letter and these terms of business form the entire agreement between VBD Business, Tax & Wealth Advisers (“us”, “we”, “our”) and the persons, parties or entities named in or to whom the engagement letter is addressed jointly and severally (“you”, “your”) in relation to the services (“Agreement”). Accordingly, the Agreement will be both with your entity (whether that be a company, trust or otherwise) and you personally (in your own individual capacity). This means should your entity at any stage come within the control of another person then the Agreement continues.
The Agreement replaces any earlier agreements, representations or discussions. If anything in these terms of business is inconsistent with our engagement letter, our engagement letter takes precedence.
You may accept this Agreement by doing one or more of the following:
- signing these terms of business or the engagement letter in which these terms were referred or attached; or
- continuing to instruct us after receiving this Agreement; or
- orally.
On acceptance of this Agreement you agree to pay for our services on these terms.
By continuing to provide us with instructions, you and your entity are also agreeing to be jointly and severally bound by this Agreement and liable for our fees. This means that if your entity does not have the funds to pay our fees, you will need to pay them yourselves personally. By entering into this agreement, you are agreeing to pay our fees in accordance with our terms.
We will issue tax invoices for our fees and any disbursements we incur in completing the work for you at times, or in the frequencies, set out in the Engagement letter, and if no time or frequency is determined on a monthly basis. All tax invoices for deposits are due and payable 7 days from the date of issue of the deposit tax invoice. All other tax invoices are due and payable 14 days from the date of issue of the tax invoice. You consent to us sending tax invoices electronically via your nominated email address. Payment options are set out in the tax invoices and include credit card, direct deposit, cheque or money order.
Confidentiality
We will treat as confidential (and maintain the confidentiality of) all information that you provide to us. This information will only be disclosed to a third party where you provide specific authority for us to provide this information to them, or where we are subject to a legal duty to disclose the information.
You authorise us to store your information on offsite data storage facilities (also known as cloud storage).
We may engage others who we consider appropriate to assist in the provision of the services. You hereby authorise us disclose your information to those people, but only for the purposes of providing the services.
Privacy
We will collect personal information from you in the course of providing our services. We may obtain personal information from you and also from third party searches and other investigations. Your personal information will only be used for the purposes for which it is collected or in accordance with the Privacy Act 1988 (Cth). You are not obliged to provide any information to us, but if you do not provide us with the personal information that we request we may not be able to deliver our services, or any advice we provide may be wrong for you or misleading. Generally, we will not disclose your information overseas unless your instructions involve dealing with parties located overseas. If your matter involves parties overseas we may disclose select personal information to overseas recipients associated with that matter in order to provide our services. The way we collect, use and store your personal information is governed by our privacy policy. Our privacy policy contains information about how you can access and correct the personal information we hold about you and how you can raise any concerns about our personal information handling practices. For more information, visit http://www.vbd.com.au/privacy-policy.
Retention of Documents
Any original source documentation or information you provide to us will be returned to you upon completion of the services.
You authorise us to retain copies of any documentation or information that was provided to us for the purpose of providing the services. However, we will not be responsible for retaining copies of any documentation or information you provide to us on your behalf or otherwise in compliance with any obligations to which you are bound.
Reliance on Information
In providing our services we are entitled assume, and you warrant that, the information, all financial and taxation information and other records that you (or others on your behalf) provide to us are complete and accurate. You will make all relevant information available to us to assist us in the provision of our services to you.
In the provision of our services to you we may detail the information and any underlying assumptions that we are relying upon. You will be responsible to ensure that those assumptions are correct and that the information provided is complete and accurate.
In the event that there are any inaccuracies in our assumptions or where there is any missing or incorrect information, you undertake to identify this for us and further, not rely or act upon our services until we have been made aware of any inaccuracies or incorrect information and have notified you in writing that our services have been updated taking account for those matters.
You acknowledge and agree that we are not responsible for, and you release us from any claims you may have or costs, damages or expense that you may incur as a result of any services that are delayed or prevented from being provided at all, or any information or advice that we provide that is incorrect due to delayed, incomplete or inaccurate information provided by you or on your behalf.
Further, you agree to ensure that we are permitted to use any third party information you (or others on your behalf) provide to us to use in providing our services.
Your advisers or other representatives may communicate with us in relation to the preparation and delivery of our services.
Where this occurs, you agree that your advisers or other representatives are acting as your agent. As such, any communications to or from your advisers or other representatives will be taken to be communications to or from you (as the case maybe).
You will be responsible for ensuring the detail of any such communications are provided to you by your advisers or other representatives.
You authorise us to discuss with your advisers, representatives or agents any aspect of our services we are providing you where it is necessary to complete the delivery of our services, including without limitation any personal or confidential information.
You may request services in many forms. This may include verbal responses to queries, short emails or letters of advice.
You will appreciate that letters of advice typically contain detailed background facts as well as a detailed analysis and application of the law to those background facts. Other forms of advice typically do not contain this level of detail.
As such, should you wish to rely on any services provided to you verbally or in a short email (or in any form other than a letter of advice) you should obtain the services in advice letter form. You may only rely on finalised (not draft) advice in letter form.
Australian taxation law is continually being updated and reinterpreted. This can create uncertainty in relation to how Governments or the Courts may interpret taxation law. Whilst we will endeavour to bring any areas of uncertainty to your attention, it is not possible for us to guarantee that all areas of uncertainty will be identified and communicated to you and you acknowledge that our services expressly exclude any guarantee that you are and continue to comply with taxation obligations without engaging us to complete a full audit of your accounts and records.
In addition to our fees set out in the engagement letter, we may incur disbursements (being money which we pay or are liable to pay to others on your behalf). These may include search fees, expert advice or reports, travel expenses. We will inform you of these expenses and disbursements, as well as any other payments required to be made, as soon as is reasonably practicable and will include these disbursement amounts in our tax invoice. You are liable to reimburse us for such disbursements.
You agree to pay us fees for our services on the basis set out in this Agreement, plus any GST we are required to pay in connection with the services.
If our fees are not paid by the due date, we may charge you interest at the rate of 10% (compounded daily). If we engage a third party such as a debt collection agent or lawyer to recover any outstanding amounts owed by you, the costs incurred in engaging the third party, including any associated legal costs on a full indemnity basis, will be added to any amount owing by you to us and will become immediately due and payable by you. We reserve the right to withhold delivery of our services until all outstanding amounts owed by you are paid.
If we are required to provide information regarding you or the services provided to comply with a statutory obligation, court order or other compulsory process, you agree to pay the reasonable costs and expenses we incur in doing so. This includes time spent by professional staff and our reasonable legal costs.
Neither party is liable to the other for delay or failure to fulfil obligations under this Agreement (other than an obligation to pay) to the extent that the delay or failure arises due to an unforeseen event beyond their reasonable control which is not otherwise dealt with in this Agreement. Each party agrees to use reasonable endeavours to remove or overcome the effects of the relevant event without delay.
If a dispute arises in connection with this Agreement, you agree to meet with us to attempt to resolve it. If the dispute is not resolved through those negotiations, you agree we will both attempt to resolve the dispute through mediation before commencing legal proceedings.
You may elect or consent for us to communicate with you via electronic mail. As such mail is not secure it may be copied, recorded, read or interfered with by third parties while in transit. If you ask us to transmit any document electronically, you release us from any claim you may have as a result of any unauthorised copying, recording, reading or interference with that document after transmission, for any delay or non-delivery of any document and for any damage caused to your system or any files by or as a result of that transmission.
You acknowledge and accept the risk of cyber fraud, including but not limited to incidents where your IT, email, or other systems are compromised or hacked by a third party, resulting in fraudulent instructions being provided to us. To the fullest extent permitted by law, you release us, our officers, employees, and agents from any and all claims, demands, actions, liabilities, losses, damages, or expenses (including legal costs) arising directly or indirectly from any cyber fraud incident, including but not limited to circumstances where, as a result of a compromise of the your IT, email, or other systems, we act on fraudulent instructions and transfers money or assets to a third party.
To the extent permitted by law and except as expressly provided to the contrary in this Agreement, all warranties whether implied, statutory or otherwise, relating in any way to the subject matter of this Agreement or to this Agreement generally, are excluded. Where legislation implies in this Agreement any condition or warranty that is prohibited from exclusion, our liability for any breach of that condition or warranty will be limited, at our option, to: a) The supplying of the services again; or b) The payment of the cost of having the services supplied again. To the extent permitted by law, our aggregate liability for any claims made under or in connection with this Agreement will be limited to three (3) times the total value of the fees we have received from you in connection with the specific underlying service that gave rise to the liability (based on invoiced amounts, or if not separately identified in invoices, based on work in progress amounts included in invoiced amounts). Liability is also limited by a scheme approved under Professional Standards Legislation.
Despite any other provision of this Agreement to the contrary, and to the fullest extent permitted by law, us, our officers, employees, and agents will not be liable to you or any third party for any amount, claims, demands, actions, liabilities, losses, damages, or expenses (including legal costs) arising directly or indirectly in connection with this Agreement or the services provided pursuant to this Agreement to the extent that the amount, liability or claim is for Economic Loss or any special, indirect or consequential loss. ‘Economic Loss’ means loss of revenue, loss of profit, loss of custom, loss of goodwill, loss of overhead recovery, loss of business opportunity, loss of the use of money, loss of use of property, loss of contract, loss of production, loss or payment of financing charges or cost recovery, opportunity cost, payment of liquidated sums, payment of damages (whether under any other agreement or otherwise).
We accept no liability or responsibility to any third party in connection with our services. You agree to indemnify us our officers, employees, and agents from any and all claims, demands, actions, liabilities, losses, damages, or expenses (including legal costs) arising directly or indirectly that we incur in connection with any claim by a third party arising from our services or this Agreement.
Where our instructions are received from directors or controllers of an entity to carry out services on behalf of the entity, then the parties to this Agreement include both:
- The entity; and
- The directors or controllers personally.
Where there are multiple parties to this Agreement, the parties agree to be joint and severally liability under this Agreement.
You grant to us: (a) a PPSA Security Interest over all your PPSA Personal Property; and (b) a fixed charge over all of your Other Property; to secure the payment of money owed to us under this Agreement and the punctual performance of all of your other obligations under this Agreement.
In this clause the following terms have the following meaning:
“Other Property” means all present and after-acquired property of yours that is not PPSA Personal Property;
“PPSA” means the Personal Property Securities Act 2009 (Cth).
“PPSA Personal Property” means: (i) all of your present and after-acquired property in which the you can be a grantor of a PPSA Security Interest including property in which you have, or may have in the future, rights or the power to transfer rights; (ii) proceeds; and (iii) PPSA retention of title property (as that term is defined in the Corporations Act).
“PPSA Security Interest” has the meaning given to the term ‘security interest’ in the PPSA.
This Agreement is made in New South Wales. The parties submit to the exclusive jurisdiction of the Courts of New South Wales.
You may terminate this Agreement at any time by giving us five (5) days written notice. We may elect to terminate this Agreement: a) if you fail to pay our tax invoices; b) if you fail to provide us with adequate instructions or required documents within a reasonable time; c) if you give instructions or provide us with documents that are deliberately false or intentionally or recklessly misleading; d) if we, on reasonable grounds, believe that we may have a conflict of interest; or e) without cause, upon giving you reasonable notice. Where we elect to terminate the Agreement, we will give you five (5) days’ notice of our intention to terminate, and of the grounds on which the notice is based.
If the Agreement is terminated by either party, you will be required to pay our professional fees and charges for services undertaken, and for expenses and disbursements incurred, up to the date of termination. For agreed fee matters, you must pay the part of the agreed fee that we reasonably estimate has been incurred in respect of the services up to the date of termination, plus any other reasonable charges, expenses and disbursements. Our Terms of Business continue to apply after termination of the Agreement.