Accounting Terms & Conditions
As at 1 July 2015
We aim to do business in the spirit of our key principles:
- Taking ownership
- Delivering Value
- Sharing Growth
For further details click here.
Terms of Business
M G Arthur & Associates (MGAA) has set out in this document our basic terms and conditions (the "Terms and Conditions"), which together with our Engagement letter (together called "this Agreement"), will apply to all work performed by MGAA for you (the "Client") with respect to this Engagement.
1.1 Each of MGAA and the Client confirms that it has obtained all necessary authorisations to enter into and perform this Agreement ("Agreement").
2. Performance of the Services
2.1 MGAA will provide the Services set out in our Engagement Letter and will use all reasonable commercial efforts to provide the Services in an efficient and timely manner, using the necessary skill and expertise to an appropriate professional standard.
2.2 MGAA may provide additional or unlisted services on request by you which would be performed and charged on time cost basis.
2.3 Where no engagement letter is in place, MGAA aims to provide services under CPA Australia guidelines and charge based on our time costs.
3.1 For the purpose of this Agreement, "Confidential Information" means all non-public information or documents which either party receives or produces in connection with the services and includes MGAA's working papers, information and methodologies, but does not include any information which is:
(a) or becomes generally available to the public other than as a result of a breach of this clause;
(b) known to either party prior to MGAA commencing the Services;
(c) received from a third party who owes no obligation of confidence in respect of the information; or
(d) developed by either party independently of the Services to which this Agreement relates.
3.2 Neither MGAA nor the Client may disclose Confidential Information about or belonging to the other without the other's consent.
3.3 Notwithstanding the above, MGAA may disclose Confidential Information to Contractors in relation to the provision of the Services, to assist in quality assurance reviews or for its business purposes and either party may disclose Confidential Information to:
(a) its insurers or legal advisors, provided that the Confidential Information remains confidential;
(b) if required to do so by law or by a regulatory authority including under subpoena; or
(c) if required for the proper performance of the Services.
3.3 Subject to Clause 3.1 and 3.2 we may cite the performance of the Services to clients as an indication of our experience.
4. Privacy of Personal Information
4.1 In performing the Services, we agree to comply with the legal requirements of the Australian Privacy Principles as set out in the Privacy Act 1988 (Cth) ("Privacy Act") and any other applicable legislation or privacy guidelines.
4.2 If the performance of the Services requires a third party to this Agreement to supply personal information to us on your request, it is your obligation to ensure that the third party has satisfied the requirements of the Privacy Act and is permitted by the Privacy Act to disclose such personal information to us.
4.3 If the Services require MGAA to collect personal information from a third party, you will ensure that such collection of personal information complies with the Privacy Act, and do and be responsible for, all things necessary (including obtaining appropriate consents) for MGAA to collect such personal information.
5. Intellectual Property
5.1 Unless otherwise specified in the Engagement Letter, intellectual property rights in the Services, the Website, documentation, systems, materials, methodologies and processes brought to the engagement by MGAA or created in the course of the engagement by MGAA shall remain the property of MGAA.
5.2 Title to, and all Intellectual Property Rights in relation to your data remain your property. You grant MGAA a licence to use, copy, transmit, store and backup your information and other data for the purposes of enabling you to access and use the Services and for any other purposes related to provision of services to you. Your access to data is contingent on full payment of your MGAA fees.
5.3 You must retain original copies of all data provided to and by MGAA. MGAA adheres to industry best practice guidelines to prevent data loss, including secure back- ups of all client data but does not make any guarantees that there will be no loss of Data. MGAA expressly excludes liability for any loss of client Data.
5.4 Subject to clause 4, MGAA will not be restricted by the Agreement from developing and using in the future any techniques, methodologies, ideas, concepts, information and general knowhow.
5.5 You must not use the MGAA logo on any websites or in any public statement, (including filing all or part of a report with a regulator or including all or part of a report in any public document) without obtaining our prior written consent.
5.6 The working papers for this engagement, including electronic documents and files, are our property and constitute Confidential Information.
6. Access conditions
6.1 You must ensure that all usernames and passwords required to access the Service are kept secure and confidential. You are responsible for all use of your usernames and passwords, and liable for any loss or damage that we suffer, caused by misuse of your usernames and passwords. We are not liable for any loss or damage that you suffer, caused by misuse of your usernames and passwords. You must immediately notify MGAA of any unauthorized use of your passwords or any other breach of security. MGAA will then notify the software provider in question who will reset your password and you must take all other actions that MGAA and the software provider reasonably deems necessary to maintain or enhance the security of MGAA's/the Software Provider's computing systems and networks and your access to the Services.
6.2 As a condition of these Terms and Conditions, when accessing and using the Services, you must:
(a) not attempt to undermine the security or integrity of MGAA's or the software provider's computing systems or networks or, where the Services are hosted by a third party, that third party's computing systems and networks;
(b) Not use, or misuse, the Services in any way which may impair the functionality of the Services or Website, or other systems used to deliver the Services or impair the ability of any other user to use the Services or Website, including not attempt to or tamper with, hinder or modify the Website, attempt to or knowingly transmit viruses or other disabling features, or damage or interfere with the Website in any way including but not limited to the use of trojan horses, viruses, or piracy or programming routines that may damage or interfere with the Website;
(c) Not attempt to gain unauthorized access to any materials other than those to which you have been given express permission to access or to the computer system on which the Services are hosted;
(d) Not transmit, or input into the Website, any: files that may damage any other person's computing devices or software, content that may be offensive, or material or data in violation of any law (including data or other material protected by copyright or trade secrets which you do not have the right to use); and
(e) Not attempt to modify, copy, adapt, reproduce, disassemble, decompile or reverse engineer any computer programs used to deliver the Services or to operate the Website except as is strictly necessary to use either of them for normal operation.
(f) Not facilitate or assist another person to do any of the above acts.
7.1 At the end of this engagement we will keep your file and documents for the minimum period stipulated by any relevant legislation. MGAA may destroy the original of any document as long as it retains an electronic copy, as stipulated by the relevant legislation. At the end of the minimum period we may destroy your file and documents. All files and documents will be destroyed in a confidential manner. You agree that the above data retention arrangements are acceptable for your purposes. At any time prior to the destruction of the files or documents, you may, by written direction, instruct us to deliver the original or, where provided by relevant legislation, an electronic copy of any documents which belong to you, either to you or to a nominee (in which case we may retain copies of those documents).
7.2 If you become aware that any document relating to this engagement is, or is reasonably likely to be, required as evidence in a legal proceeding, please immediately advise us so that the file can be delivered to you for safe keeping.
7.3 If we are provided with custody of any documents by you or on your behalf, including share registers or constitution documents, those documents will be retained during the course of our appointment (unless their earlier return is requested), at the end of which they will be returned to you unless separate arrangements have been made. We may retain copies.
7.4 We reserve the right to exercise a lien over any documents and files belonging to you which may be in our possession.
7.5 All original documents obtained from you arising from our engagement will remain your property. However, we reserve the right to make a reasonable number of copies of the original documents for our records.
7.6 Our engagement will result in the production of income tax returns, financial accounts and associated reports. It may also result in the provision of taxation advice. Ownership of these documents will vest in you. All other documents produced by us in respect of our engagement will remain our property.
8. Newsletters and General Information
8.1 From time to time we may provide general information either through website or emails (e.g. in form of blogs or newsletters) or in direct communication with you. This information is generic in nature and should not be construed as advise or relied upon in making any decisions. You should seek appropriate written advise on your circumstances before making any decisions.
9. Use of software
9.1 You agree to the Terms & Conditions of "MYOB Live Accounts", "Xero" or other software providers. You understand that MGAA may sign-up and agree to the "Terms & Conditions" of "MYOB Live Accounts", "Xero" or other software providers on your behalf, unless clearly requested by you before engaging the services of MGAA.
9.2 You agree to the Terms & Conditions of other software used by MGAA that you are required to access in the provision of Services to you. This includes cloud based software accessed by you the Client, as instructed or made available by MGAA.
9.3 MGAA may also 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 our Agreement with you) they are not your property, were developed for our purposes and without consideration of any purposes 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. To the full extent permitted by law, 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.
9.4 You agree that MGAA does not accept any liability for the content or performance of any third party website accessed through this website, not endorse or approve the contents of any such site. MGAA does not give any warranty that this website is free from viruses or anything else which may have a harmful effect on any technology.
10. Electronic Communications
10.1 We will communicate with you electronically, including sending you Commercial Electronic Messages (as that term is defined in the SPAM Act 2003). You consent to us sending Electronic Communications to you.
10.2 Electronically transmitted information cannot be guaranteed to be secure or virus or error free and consequently such information could be intercepted, corrupted, lost, destroyed, arrive late or incomplete or otherwise be adversely affected or unsafe to use. We will not be liable to you in respect of any error, omission or loss of confidentiality arising from or in connection with the electronic communication of information to you.
11. Limitation of Liability
11.1 The liability of MGAA for loss or damage arising from or in relation to the Services, whether arising from breach of contract, tort (including negligence) or otherwise, is limited by a scheme approved under Professional Standards Legislation.
12. Fees and Payments
12.1 Our Fees are set out in our engagement letter, or where not specified, will be charged on our time cost basis.
12.2 Invoices will be raised promptly on completion of work or part, as applicable. All payments are due within14 days of date of invoice.
12.3. We do not have a refund policy. Any requests for refunds (where services are not performed or charged by error) may be refunded solely on discretion of the management of MGAA.
12.4 Where you request us to charge your credit card, we will treat the information given as per Clause 3. Confidentiality and Clause 4. Privacy of Personal Information of this Terms and Condition.
12.5 Where you use our online services for credit card payments, we do not hold any responsibility for misuse or inappropriate use of the card. The online merchant that we use for receiving payments is located in Australia.
12.6 Additional service fee may be charged on credit card payments.
13. Contractors and Third Parties
14. We reserve the right to employ Contractors, and any reference to our staff includes Contractor staff. Subject to any contrary provision in our Engagement Letter we will remain liable to you for any of the Services that are provided by our Contractors.
14.Terms of Termination
14.1 This Agreement will apply from the commencement date stated in the Engagement Letter, or where no commencement date is specified, from the date of acceptance of the Agreement as specified in our Engagement Letter or the date on which the Services commenced, whichever is earlier.
14.2 Subject to any statutory provisions that apply to the Services, either party may terminate this Agreement at any time by giving appropriate written notice. Any fee payable till date of termination for work done, whether complete or in progress would need to be paid within 7 days of termination.
A failure or delay by a party in exercising a power or right given to it under this Agreement does not operate as waiver of that power or right, nor does a single or partial exercise of a power or right prevent any other or further exercise of it. A waiver by a party of a power or right given to it under this Agreement does not affect any other provision of this Agreement.
15.2 Conflict of interest
You are also required to advise us if you become aware of any conflict of interest or potential conflict of interest. Generally, a conflict of interest is any event which may result in us becoming unable to remain objective in the performance of our services to you. Some examples of events which could give rise to a conflict of interest or potential conflict of interest during this engagement are changes to your business circumstances, events affecting your family (eg. death and/or marriage breakdown) or a legal action commencing against you.
15.3 Governing Law
This Agreement shall be governed by and interpreted in accordance with the laws of the State of New South Wales and the Courts of that State shall have exclusive jurisdiction in relation to any claim, dispute or difference concerning the Agreement and any matter arising from it. The parties irrevocably waive any right they may have to object to any action being brought in an inconvenient forum or to claim that those courts do not have jurisdiction.
15.4 Force majeure
Neither of us will be liable to the other for any delay or failure to fulfill their obligations (excluding payment obligations) under this Agreement to the extent that any such delay or failure arises from causes beyond their control, including but not limited to fire, flood, acts of God, acts or regulations of any governmental authority, war, riot, terrorist activities, strikes, lockouts, industrial disputes, including without limitation, incorrect email addresses, internet failures, computer equipment failures, other equipment failures, or non-performance of third parties.
15.5 No assignment
Neither of us may transfer, charge or otherwise seek to deal with our rights or obligations under this Agreement without prior written consent of the other party, except that we may each transfer our respective rights and obligations to any partnership or legal entity authorised to take over all or part of our business.
15.6 Validity of Agreement terms and severance
If any provision of this Agreement is held to be invalid, in whole or in part, such provision shall be deemed not to form part of and will be severed from, the Agreement. The enforceability of the remainder of the Agreement will not be affected.
15.7 Entire agreement
This Agreement forms the entire agreement between us relating to the Services. It replaces and supersedes any previous correspondence, understandings or other communications (written or oral).
16. Our obligation to comply with the law
16.1 We have a duty to act in your best interests. However, the duty to act in your best interests is subject to an overriding obligation to comply with the law even if that may require us to act in a manner that may be contrary to your interests. For example, we could not lodge an income tax return for you that we knew to be false in a
16.2 We also have an obligation to ensure that we manage conflicts of interest as they arise. In this regard, we have arrangements in place to ensure that we manage potential or actual conflicts of interest. The effective operation of these arrangements depend, in part, on you complying with your obligation to disclose any potential conflicts of interest to us
16.3 Unless otherwise stated, any opinion provided is based on the Australian tax law in force and the practice of the Australian Taxation Office (the ATO) applicable as at the date of the Engagement Letter.
16.4 Our advice and/or services will be based on Australian taxation law in force at the date of the provision of the advice and/or services. It is your responsibility to seek updated advice if you intend to rely on our advice at a later stage. We note that Australian taxation laws are often subject to frequent change and our advice will not be updated unless specifically requested by you at the time of the change in law or announced change in law.
For the purpose of this Agreement: Agreement means the agreement between us as set out in these Terms of Business and our Engagement Letter together with any changes to the Agreement that are agreed in writing between us.
Engagement Letter means the Engagement Letter or confirmation letter to which these Terms of Business are attached.