Conditions of Engagement
STANDARD TERMS AND CONDITIONS OF ENGAGEMENT
1. ENGAGEMENT 1.1 Our letter of engagement to you with respect to each matter in which you request our services (Engagement Letter) and these standard terms and conditions of engagement of Cooper Reeves Pty Ltd and any of its practice entities (including Count Financial Limited ACN 001 974 625) directors and employees (collectively referred to as “Cooper Reeves Pty Ltd”or “us) including any written variation (together called “this Agreement”) will apply to the work to be performed for you (the Client or you) as described in the Engagement Letter (the “Services”).
1.2 This Agreement constitutes the entire agreement between Cooper Reeves Pty Ltd and you. Where there is any inconsistency between the Engagement Letter and these terms, the Engagement Letter will prevail.
1.3 You acknowledge that we are engaged under this Agreement as an independent contractor. No person has been authorised to give any representations on our behalf except as set out in the Agreement.
1.4 In the event that any of the terms of this Agreement are or become invalid, illegal or unenforceable, the remainder survive unaffected.
1.5 The offer contained in the Engagement Letter must be accepted by written confirmation.
2. CLIENT OBLIGATIONS 2.1 You agree to pay for the Services described in the Engagement Letter.
2.2 We need your prompt assistance to provide access to all information which we consider to be relevant to the provision of the Services, so as to enable us to provide the Services. You must update information provided to us where there has been a material change to that information which affects the scope or performance by Cooper Reeves Pty Ltd of the Services.
3. UNAVOIDABLE DELAYS 3.1 We will advise you of any delay and cause. We are not liable for any failure or delay in providing the Services if caused, or contributed to, by an act or event (including the non-performance of your obligations) that is beyond our control or was not foreseen at the time of entering into this Agreement. We may be entitled to review our fees where such delays occur.
4. SPECIFIED ENGAGEMENT PERSONNEL 4.1 We wish to ensure a continued working relationship and you agree you will not offer employment to any of our directors or employees working on the engagement or induce or solicit any such person to take up employment with you; nor will you use the services of any such person, either independently or via a third party, for a period of six months following the end of any involvement by that person with any engagement for you. If such an offer is made you will pay us an amount equal to 25% of that person’s proposed total annual remuneration with you.
4.2 We reserve the right to assign such personnel to perform the services as it sees fit and appropriate.
5 USE OF REPORTS AND ADVICE 5.1 All communication by us with you, your employees or agents, whether written or oral are provided solely for your use in connection with this Agreement, and must not, without our prior written consent be used for any other purpose or referred to in any document or made available to any other person (except your legal advisors or other professional advisors assisting in matters related to this Agreement). No other party is entitled to rely on our reports or advice for any purpose whatsoever. We disclaim any responsibility to any such third party who has had communicated to them the report or advice provided by us to you as part of this Agreement.
5.2 If any report or correspondence containing opinions or advice is sent electronically, we will not be responsible for any unauthorised copying, interception, interference or delivery failure of the transmission. We also do not warrant that the electronic transmission is virus free or will not harm your computer systems.
5.3 You should not rely upon any opinions or advice transmitted electronically unless confirmed by a letter signed by a partner or other authorised signatory of Cooper Reeves Pty Ltd.
5.4 Written advice and final reports take precedence over any oral advice and interim reports. We are not responsible for updating any opinions, advice or reports subsequent to the issue of a final version.
5.5 Changes in legislation can occur rapidly and can have a retro-active effect. Where there has been a delay in implementing advice or a change in your circumstances, you are responsible for advising us of the delay or change and to seek confirmatory advice from us before implementing the advice.
6 PROFESSIONAL FEES & PAYMENT TERMS 6.1 Unless otherwise specifically agreed, our fees will be based on hourly rates which take account of the level of personnel assigned to the engagement. If an estimate of fees has been provided by us to you, we will advise you if it considers the estimate is likely to be materially exceeded.
6.2 You agree to pay any tax or other charge imposed on us (now or in the future) in relation to any transactions arising in connection with, or as an outcome of, this Agreement. This includes (but is not limited to) any goods and services tax (“GST”) imposed under the A New Tax System (Goods and Services Tax) Act 1999 (Commonwealth) as amended. Any fees charged by us under this Agreement will be initially calculated exclusive of GST. Where GST is payable on any supply provided under this Agreement, you agree that the fee payable for this supply will be increased by an amount equivalent to the GST payable by us in respect of that supply.
6.3 If either we or you terminate this Agreement, for the reasons set out in the Engagement Letter or for any other reason that justifies termination, we are entitled to the fees incurred up to the termination date.
6.4 Disbursements paid or incurred by us on behalf of you are separate to our professional fees. Disbursements include photocopying, telephone calls, couriers, facsimiles, travel fares and desktop publishing services. For travel disbursement, our standard policies apply which are to use business class within Australia for flights of duration greater than two hours (otherwise economy) and business class or equivalent for overseas air travel. All disbursements will be charged at cost and itemised in our invoices.
6.5 We will issue invoices monthly or once significant amounts of time have been incurred. Except where the Engagement Letter states otherwise invoices are payable within 14 days of receipt. We reserve the right to charge an administration fee on overdue amounts at the rate of 1 (one) per cent per month of the outstanding balance.
7 INFORMATION FROM CLIENT 7.1 If areas of deficiency are detected in the information supplied, additional costs will be charged to rectify the information. Basic information is expected to be provided in a reconciled manner.
8 CONFIDENTIALITY & PRIVACY
8.1 We may wish to obtain publicity for work undertaken on behalf of our clients. Permission to attribute work for you publicly will always be obtained in advance. Notwithstanding this condition, we assume the right to use reference in proposals or other similar submissions made to other prospective clients, unless you expressly prohibit such disclosure.
8.2 Unless otherwise agreed, we are authorised by you to communicate or meet with any other person whom we may need to contact to perform the Services or whom you request us to contact.
8.3 Save as set out above or as required by law, Court or arbitration proceedings, regulations including those made under the Corporations Act, professional duty, or as is requested by regulatory authorities, or as is necessary to protect its own legitimate interests, we will not disclose any confidential information relating to you which we obtain during the course of this Agreement to any other person (except our own advisers).
8.4 In carrying out the Services it may be necessary for us to obtain from you records personal and sensitive information about employees of yours or of other persons connected with your business. You acknowledge the necessity and declare that you authorise for yourself, employees and other persons for us to collect and retrieve that information. You state that it has, or will make those persons aware that we have this information and the reasons for its collection and possible disclosure to Government or other body in providing the Services. This authority is given on the understanding that we will only deal with that information in accordance with its Privacy Policy and the National Privacy Principals under the Privacy Act (Cwth).
8.5 Under the Privacy Act, we are required to advise you that we collect information about you to assist in performing and promoting the Services. We will not disclose information about you to any person except in the course of providing the Services or for the ordinary administration of our business. You can request access to information held by us about you by making a written request to a Cooper Reeves Pty Ltd Director.
9. CONFLICT OF INTEREST
9.1 Before entering this Agreement we will attempt to ensure that it does not create a conflict of interest or that if it does, proper steps (acceptable to you and permitted by law) are taken to manage the conflict.
9.2 We cannot always identify conflicts because clients frequently trade through subsidiaries or branches whose names are not known to us. You agree to provide us with any names used by you or names of associated companies, to be included in our conflict checking procedures. You must immediately inform us if you become aware, during the term of this Agreement that your interests are or may become opposed to those of another person or entity.
9.3 If a conflict of interest does arise during the term of this Agreement, the engagement director or any Cooper Reeves Pty Ltd director will discuss it with you and with the other party to the conflict to attempt to achieve a prompt and satisfactory resolution. Your details will be kept confidential during those discussions unless otherwise agreed.
10. COPYRIGHT & INTELLECTUAL PROPERTY 10.1 Unless otherwise agreed, we retain copyright in all material provided to you or otherwise generated in connection with this Agreement.
10.2 You must keep confidential any methodologies and technology used by us in connection with this Agreement.
11. RETENTION OF FILES
11.1 We reserve the right to keep your files and documents if there is money owing by you to us for professional fees or disbursements, even if this Agreement is terminated by us.
11.2 You authorise us to destroy your files in connection with this Agreement after a period of 7 years from the date we provide you with a final invoice under this Agreement. We accept no liability in the event of earlier loss of stored files or documents although reasonable care will be taken to avoid loss.
12. LIMITATION OF LIABILITY
12.1 Nothing in these Terms and Conditions excludes, restricts or modifies the application of any statute, including the Trade Practices Act, where to do so would contravene that statute or cause the term to be void.
12.2 If any representations, conditions or warranties are considered to be of importance to you, you should ask that they be incorporated in the Engagement Letter before it is accepted by you. These Terms and Conditions, and the Engagement Letter, constitute the whole of the agreement covering our relationship and we will not be liable for any statement, representations, or warranties (written or oral) which are not expressly contained in these documents. All warranties which may otherwise be implied by statute, common law, or custom are (subject to clause 6.2) expressly excluded.
12.3 You agree that in respect of any liability sustained by you in relation to this agreement or the services, any loss or damage suffered by you (whether direct indirect or consequential), including (without limitation) liability for any negligent act, omission or misrepresentation by us, shall be limited to:
a) Four times the amount of professional fees (excluding GST) paid to us in respect of the services to which the claim relates. You agree to release us from all claims to the extent that our liability exceeds this amount.
b) To the extent that any loss or damage suffered by you is due to an act, omission, negligence, fault or lack of care on your part or on the part of any person for whom you are responsible, we are not liable for the loss or damage.
c) If we are liable for a breach of any warranty implied by section 74 of the Trade Practices Act 1974 in respect of services not of a kind ordinarily acquired for personal, domestic or household use or consumption, our liability under that section is limited to the supply of the Services again or the payment of the cost of having the Services supplied again, whichever we, in our absolute discretion elect.
d) We will not be liable for any losses, claims, expenses, actions, demands, damages, liabilities or any other proceedings arising out of reliance on any information which is false, misleading or incomplete.
13. INDEMNITIES
13.1 You agree to indemnify us and our directors and employees against all liabilities, claims, costs or expenses incurred by us in respect of any claim or action by a third party in connection with the provision of the Services. This indemnity does not apply to any liabilities, costs or expenses incurred in defending a claim by a third party which results from any wilful misconduct by us or our directors and employees, except when you are in breach of clause 5.1.
13.2 We are not liable for any losses, damages, costs or expenses arising out of errors due to the provision to us of false, misleading or incomplete information or documentation or due to any acts or omissions of any other person. You indemnify us from any liability we may have to you or any third party as a result of any information supplied to us by you or any of your agents, where such information and documentation is false, misleading or incomplete in a material respect.
14. WHERE COOPER REEVES PTY LTD PREPARES INCOME TAX RETURNS AND/OR PREPARES OR
ASSISTS IN THE PREPARATION OF ACTIVITY STATEMENTS
14.1 We will be responsible for preparation of annual income tax returns of individuals and entities required to lodge returns, including reviewing all assessments, instalment notices and correspondence with the Australian Taxation Office (ATO) in respect of the returns.
14.2 Where requested, we will provide assistance at an appropriate level (having regard to your instructions and status of records) relating to preparation and/or lodgement of Instalment or Business Activity Statements (IAS/BAS). We will also process and assist with notices and correspondence with the ATO relating to these statements and reporting and payment obligations.
14.3 We will highlight any potential exposure to Fringe Benefits Tax which comes to our notice and provide further assistance upon request.
14.4 When requested, we will advise you or associated entities in relation to income or goods and services tax matters. If a specific matter comes to our attention which we determine has the potential to materially impact on your taxation affairs, we will inform you so that further discussions may be initiated.
14.5 Whilst every care will be taken to provide the highest standard of professional advice you should be aware of the following:
a) Under the taxation law, responsibility for the accuracy and completeness of income tax returns and other returns and statements made to the ATO vests with the taxpayer or officers of the taxpayer entity.
b) Our taxation advice is necessarily an opinion only based on our knowledge of the particular circumstances. There are limitations attaching to such tax advice and our expression of opinion should not be taken as an assertion of fact. Consequently such advice and income tax returns are not beyond challenge.
c) Our advice will rely on our understanding of specific facts which will be provided by you or associated entities. The accuracy and completeness of our advice is reliant on the accuracy and completeness of the underlying facts as provided.
15. WHERE COOPER REEVES PTY LTD COMPILES FINANCIAL REPORTS & MANAGEMENT FINANCIAL REPORTS WHICH ARE NOT SUBJECT TO AUDIT OR REVIEW
15.1 On the basis of the information you provide, we will compile, in accordance with Professional Standard (AASB315 “Statement on Compilation of Financial Reports” or any future replacement standard) a financial report for specified entities.
15.2 Our procedures use accounting expertise to collect, classify and summarise the financial information, which you provide, into a financial report. Our procedures will not include verification or validation procedures. No audit or review will be performed and accordingly no assurance will be expressed.
15.3 We will rely on you for both the completeness and accuracy of the information supplied to us and this includes responsibilities for the maintenance of adequate accounting records, an adequate internal control structure and the selection and application of appropriate accounting policies. You are solely responsible to users of the special purpose financial report compiled by us.
15.4 Our engagement cannot be relied upon to disclose irregularities including fraud, other illegal acts and errors that may exist. However, we will inform you of any such matters which may come to our attention.
15.5 The financial report compiled will not be prepared in accordance with any particular financial reporting framework unless this is specifically required by you or by a particular law or regulation. Any known departures from specified or mandatory statutory financial reporting framework will be disclosed within the financial report, and when considered necessary, will be mentioned in our compilation report.
15.6 If for any reason we are unable to complete the compilation of any of your special purpose financial reports, or we consider the information to be misleading, we may refer to such matters within our compilation report or may determine not to issue a report.
15.7 The special purpose financial report will be prepared exclusively for the principals and governing body of each entity or, if requested in writing by you, for other purposes specified by you to us. We will not accept responsibility to any other person for the contents of the financial report. No person should rely on the financial report without having an audit or review conducted.
15.8 You undertake that if anything occurs after information is provided by you to us to render such information untrue, unfair or misleading, you will promptly notify us and if required by us, take all necessary steps to correct any announcement, communication or document issued which contains, refers to or is based upon such information.
15.9 You acknowledge that information made available by you or by others on your behalf to directors or staff of Cooper Reeves Pty Ltd who are not engaged in the provision of the Services, or which is otherwise known by them, shall not be taken to have been made available to us or to the individuals within Cooper Reeves Pty Ltd who are engaged in the provision of the Services.
16. WHERE COOPER REEVES PTY LTD ASSISTS YOU TO PREPARE MANAGEMENT FINANCIAL REPORTS WHICH ARE NOT SUBJECT TO AUDIT OR REVIEW
16.1 On the basis of information provided by you, we will assist in the preparation of financial reports using your accounting software. Our procedures will use accounting expertise to collect, classify and process the financial information which you provide. Our procedures will not include verification or validation procedures. No audit or review will be performed and no assurance or other opinion will be expressed. Further, we will have no responsibility for the reporting framework upon which the financial report is prepared.
16.2 We will rely on you for completeness and accuracy of information supplied to us, and you will be responsible to any users of a financial report which we assist you to prepare or complete.
16.3 Our engagement cannot be relied upon to disclose irregularities including fraud, other illegal acts and errors that may exist. However, we will inform you of any matters which come to our attention.
16.4 Our engagement is solely to assist you to prepare special purpose reports to be used for the exclusive benefit of the principals and governing body of the particular business entity for which the report is being prepared. We will not accept responsibility to any other person for the contents of the financial report. No person should rely on the financial report without having an audit or review conducted.
17. WHERE COOPER REEVES PTY LTD PREPARES OR ASSISTS IN THE PREPARATION OF BUSINESS ACTIVITY STATEMENTS (BAS) INCORPORATING GST
17.1 Responsibility for accounting and internal GST control systems will be as follows:
a) The responsibility for the maintenance of your accounting and internal GST control systems rest with you. We have not reviewed, nor been asked to review, your GST accounting records or software.
b) You confirm that your GST accounting records and software will produce the necessary BAS summary information in an appropriate format for us to complete each of the labels in the GST calculation sheet on the BAS. Our engagement is limited to accepting your GST summary figures for BAS lodgement purposes. We will not verify the accuracy of the figures and information provided by you and you must bear full responsibility for them.
c) To the extent we may be required to assist in summarising records to assist in the preparation of BAS summary information, we will rely on and not verify the accuracy of records you have maintained from which summarised data is extracted.
17.2 We will rely on and process the financial information you provided to us without any review of the primary source documents. In doing that, we will make the following specific assumptions;
a) You have the necessary supporting documentation to satisfy the ATO for GST purposes (eg. GST reconciliation worksheets).
b) At the time of lodgement of your BAS, you hold valid tax invoices and adjustment notes for all expenditure incurred by you in respect of which an input tax credit or decreasing adjustment is being claimed.
c) The information provided by you in respect of input tax credits where the acquisition has been made partly for a private or domestic purpose or partly for input tax supplies, is correctly apportioned.
d) If you account for GST on a cash basis you have identified in the information provided to us, and will only claim input tax credits in respect of expenditure you have actually paid during the relevant period.
18. COMPLAINT PROCEDURES
18.1 It is our aim to obtain, either formally or informally, a regular assessment of our performance and your engagement director will always be pleased to hear any suggestions as to how our service can be improved. If you wish to make a complaint, please call or write to the Cooper Reeves Pty Ltd Managing Director. If you are dissatisfied with the way your complaint is handled, you can report the matter to CPA Australia.
19. GOVERNING LAW & JURISDICTION
The Agreement is governed and interpreted in accordance with the law of Queensland. Each party irrevocably and unconditionally submits to the exclusive jurisdiction of the Courts of Queensland for determining any disputes or proceedings arising out of or in connection with this Agreement.