These Terms of Business (Terms) apply in respect to professional services (Services) to be performed for our client (“you” or “your”) identified in the letter of engagement (Engagement Letter) by the issuer of the Engagement Letter (“KELLY+PARTNERS”, “we”, “us” or “our”) herein collectively referred to as the “parties”. These Terms will also apply to any subsequent Engagement Letter or proposal (including any confirmation letter which advises any changes to material terms contained in an Engagement Letter (Confirmation Letter)). These Terms together with the Engagement Letter and any Confirmation Letter constitute a contract (Services Contract) between the parties in relation to the Services. Any capitalised terms not defined in the Engagement Letter have the meaning given to them in these Terms.
Basis of providing our Services
We will provide the Services described in the Engagement Letter or any subsequent Confirmation Letter. Engaging or continuing to engage Kelly+Partners to provide the Services, will evidence your acceptance of the Services Contract. It is not incumbent on Kelly+Partners to continually reissue Engagement Letters with a new scope of services nor advise you that such a new scope of services exists. If you instruct us to undertake any Services, these Terms will apply, regardless of whether or not you have signed the client acknowledgement in the Engagement Letter or Confirmation Letter.
We reserve the right to amend our Terms from time to time without notice. Where we have made material changes, we will seek to provide you with reasonable notice of the change (such as displaying a notice on our website or by sending you an email). Your continued use of our Services will constitute your acceptance of the changes. The Terms displayed on our website as amended from time to time will apply to all Services provided to you, even if you have not received notice of a change to them.
Our work will be based solely on the information provided, the circumstances made known to us and the assumptions set out in our correspondence. We rely on you bringing to our attention as soon as possible any changes in the information as originally presented as it may impact on our advice.
The scope of our services is limited to the work specified in our proposal or Engagement Letter. Unless expressly stated otherwise in the Engagement Letter, the Services provided do not constitute tax advice nor financial advice nor legal advice.
The preparation of your income tax return or BAS does not constitute a tax review nor tax audit and cannot be relied upon as such. The onus is on you, the taxpayer, to self-assess and there are substantial penalties for incorrect returns. You should carefully review the income tax return or BAS to ensure that items shown are accurately stated and inform us of any amendments that are required.
While we shall endeavour to identify potential issues to the best of our ability, we shall not accept responsibility for matters not reasonably identifiable from the information provided to us as part of our engagement with you.
Where we are engaged to compile financial information in respect of general purpose or special purpose financial statements, you are responsible for the reliability, accuracy and completeness of the accounting records and disclosure to us of all material and relevant information.
Changes in the law and in interpretations may take place before our advice is acted upon or may be retrospective in effect. Unless specifically stated in the engagement letter we accept no responsibility to inform you of changes in the law or interpretations affecting advice previously given by us.
Some of the matters on which we may be asked to advise (e.g. employee share schemes, superannuation funds) may have tax implications for directors, employees or other related entities for which we are not responsible, unless specifically instructed to address these issues. Any advice in respect of persons or entities not specifically engaged will be general in nature, unless specifically provided for in the engagement.
Any advice provided by us during this engagement is only our opinion based on our understanding of the current law, administrative practice and our knowledge of your particular circumstances. Thus, any advice and any income tax returns themselves will not necessarily be beyond challenge by the taxation authorities.
During the course of the engagement and subsequent to it, we may give oral advice in meetings and over the telephone. After a more detailed consideration of the matters discussed, we may amend the view we expressed, but are under no obligation to inform you of this. Accordingly, if we provide any oral advice, we suggest you should seek from us written confirmation of the same.
Unless specifically provided for in the engagement, the scope of our work does not include reviewing transactions in light of the application of Part IVA of the Income Tax Assessment Act 1936 and other tax anti-avoidance legislation. Generally, where Part IVA is found to apply, any tax benefits such as a tax deduction and/or deferment of income may be denied.
Limitations to the tax compliance services we provide
When completing tax returns, unless otherwise agreed in the Engagement Letter, our Services in respect of the following schedules and disclosures are limited as follows:
Tax asset register
The Capital Allowance Schedule contains information regarding depreciating assets. This schedule is completed based on the summarised information provided by you. Our engagement excludes any work in relation to a detailed analysis of any tax depreciation schedules.
Capital Gains Tax
This engagement excludes any detailed analysis of the disclosures made in the Capital Gains Tax schedules. Unless it is separately and specifically agreed that we will perform additional work in relation to these schedules, we will complete them (if required) based solely on information provided by you.
This engagement is limited to reviewing the responses in the International Dealings Schedule. We will rely on the details provided by you in relation to the disclosures made in the International Dealing Schedule. We will not be in a position to conclude upon the accuracy of any disclosure items on this schedule. However, if in the process of preparing the income tax return we identify any issues relevant to transfer pricing, we will discuss these with you.
In addition, our limited review does not constitute an opinion as to whether the ATO will agree that you have complied with the arm's length principle in dealings with international related parties or that you have documentation which is in accordance with the ATO’s rulings.
Where you request us to perform additional work on items contained in the above schedules, this would be considered a separate engagement.
We will endeavour to carry out our obligations in accordance with the time scales set out in the Engagement or Confirmation Letters or as otherwise agreed. However, unless both of us specifically agree otherwise in writing, the dates contained in the Engagement or Confirmation Letters or otherwise advised are indicative dates intended for planning and estimating purposes only and are not contractually binding.
Changes to Services
Either of us may request changes to the Services to be provided or changes to any other aspect of the Terms but no such changes take effect unless agreed in writing. Both of us agree to work together to enable both parties to assess the impact of any requested changes on the cost, timing or any other aspect of the Services.
Kelly+Partners Engagement Team
Where specific Kelly+Partners directors and staff are named in the Engagement or Confirmation Letters, we will use reasonable efforts to ensure that these people are available to provide the Services for you. Where any changes are necessary, we will give you reasonable notice of the changes.
Intellectual property rights in all documentation, systems, materials, methodologies and processes brought to the assignment or created in the course of the assignment shall remain and be vested in Kelly+Partners.
We will report to you in accordance with the terms set out in the Engagement or Confirmation Letters. You may make copies of any reports for your own internal use but you must not provide the report or copies of it to any third party without first obtaining our written consent. Such consent will only be granted on the terms we deem appropriate which will include that we accept no duty or responsibility to any other party who may seek to rely on our report. In some cases appropriate releases from third parties may be required.
Generally, the responsibility for the accuracy of any tax returns rests with the taxpayer. Consequently, you will be responsible for ensuring that the particulars and information you provide to us are accurate and complete. We will not prepare any tax returns based on estimates you provide, unless the use of estimates is generally accepted for a particular item or calculation, or where under the circumstances it is impracticable to obtain exact data.
You will ensure that information supplied by you or on your behalf, to the best of your knowledge and belief, is not false or misleading and does not omit material particulars.
In the course of providing the Services we, at our discretion, may use the resources, knowledge and information of other firms within the Kelly Partners Group or third-party service providers. Information, which may include personal information, may be required to be transferred to such parties. You consent to such transfer.
- FEES AND PAYMENT
How fees will be calculated
Fees for the Services will be charged on the basis set out in the Engagement or Confirmation Letter. Where these letters do not state the basis on which our fees will be charged, our fees will reflect time spent and such other factors as complexity, monetary values involved, specialist input required and the urgency of the matter. Goods and services tax (GST) at the prevailing rate will be added to and forms part of our fees.
Our total fees or hourly rates and, where applicable, out of pocket expenses (Billings) are based on the currently applicable GST rate (except where we have assessed that the Services to be provided are GST free). If this GST rate changes, our Billings will be adjusted to reflect the change.
You acknowledge that any fee estimate is given in good faith but is subject to change.
All charges are exclusive of expenses unless the Engagement or Confirmation Letter states otherwise. We will charge you out of pocket expenses such as reasonable travel, subsistence and document handling costs (photocopying, printing, fax and courier, etc) incurred by us (net of any applicable GST input tax credit to which we are entitled) plus GST as applicable. Any special expense arrangements will be agreed and set out in the Engagement or Confirmation Letter.
We may revise our fee scale from time to time. Rates quoted to you remain in force until next 31 December or 30 June, as appropriate. We may increase our fees for any work performed after those dates. We reserve the right to change our rates outside these dates and will communicate any such change directly to you.
Where the Engagement Letter and/or Confirmation Letter stipulate that any amount of our fees are payable by way of a ‘Success Fee’, the mechanism for the payment of the Success Fee will also be contained within the Engagement Letter and/or the Confirmation Letter.
Where the Engagement Letter and/or the Confirmation Letter do not set out the mechanism for payment, and for the avoidance of doubt, the Success Fee is payable upon the completion of the work set out in the Engagement letter, or otherwise contained in the Services Contract, and in accordance with the ‘Payment of Invoices’ section of this clause 4.
Payment of Invoices
Unless specifically agreed otherwise, your obligation to pay us fees and expenses to which we are entitled, will not arise until we have issued an Engagement Letter to you that you have signed and/or when a fee account is issued to you. Where you have not signed the Engagement Letter, but continue to instruct us, then you will be taken to have accepted the terms and conditions of the Engagement Letter issued to you and these Terms.
Where an amount for GST is stated to be a component of the fees and expenses, our fee account will comply with the law specifying what is a “tax invoice” for GST purposes.
Our invoices will be issued on a monthly basis or as set out in the Engagement or Confirmation Letter. Where not specifically set out in the Engagement or Confirmation Letter, all invoices will be due for payment on engagement (50%) and on completion of the assignment (50%). However, at our discretion, we may invoice you on an interim basis, prior to the completion of an assignment. Title to work will remain with Kelly+Partners until full payment for the assignment is received. Kelly+Partners does not provide credit and will not deliver work on assignments until full payment is settled.
Payment of invoices can be made by cheque, EFT, direct debit, or credit card. Payments by credit card will attract a service fee equivalent to the effective merchant fee levied by the card issuer.
Use of the Kelly+Partners trust account will incur a charge.
A debt collection cost of 20% of the outstanding amount will be payable by you where the account is not paid within the trading terms. Our terms are payment in advance or upon receipt of invoice. We may, at our discretion, also charge you a commercial rate of interest on accounts which are overdue by more than a month.
- TERM AND TERMINATION
Duration of Contract
This Services Contract will apply from the commencement date stated in the Engagement or Confirmation Letter, if any, or where no commencement date is specified from the date of acceptance of the Services Contract as specified in the Engagement or Confirmation Letter.
The Services Contract may be terminated by either party at any time by written notice.
Rights on Termination
Any termination of this Services Contract is without prejudice to the rights of one party against the other party in respect of any acts or omissions under this Services Contract prior to termination, or in respect of any sums that remain outstanding at the time of termination. For the avoidance of doubt, Kelly+Partners reserves the right to invoice you and you are obliged to pay for any Services performed prior to the termination of this Services Contract.
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. If you wish to provide third parties with copies of our reports, letters, information or advice, you must first obtain written permission from us to disclose the document(s) or information (please note our copyright as referred to in the Engagement Letter).
We also reserve the right to:
- set the terms upon which those copies are given or used by you or by a third party; or
- require the third party and any employees or contractors of the third party to enter into a standard form deed poll of confidentiality.
Kelly+Partners will use reasonable skill and care in the provision of the Services to you as set out in the Engagement or Confirmation Letter. The liability of Kelly+Partners, its directors, employees, associates and contractors is limited by a scheme approved under Professional Standards Legislation. The titles ‘Senior Partner’ or ‘Partner’ are used only to denote seniority and level of expertise of the person within the business. It does not and is not intended to signify that the person is in a partnership involving the Office, KPGH or any other KPGH Offices.
The Kelly Partners Group is comprised of offices in several locations. Each office of the Kelly Partners Group (Office) is a separate legal entity. Services are delivered independently by each Office. These Offices are not members of one national partnership or otherwise legal partners with each other, nor is any one Office responsible for the services or activities of any other. Kelly Partners Group Holdings Limited (KPGH) is not responsible or liable for any acts or omissions of an Office and specifically disclaims any and all responsibility or liability for acts or omissions of an Office, including without limitation any and all liability for negligence arising out of or in connection with this Services Contract.
An Office cannot act as agent of KPGH or any other Office, cannot obligate KPGH or any other Office, and is liable only for its own acts or omissions and not those of KPGH or any other Office. Similarly, KPGH cannot act as an agent of any Office, cannot obligate any Office, and is liable only for its own acts or omissions.
- INDEMNITY AGAINST THIRD PARTY LIABILITY
You hereby indemnify and hold harmless Kelly+Partners (including its directors, employees, associates and contractors) and each and every Office that forms part of the Kelly Partners Group (including any of the Kelly Partners Group directors, employees, associates and contractors) (the Indemnified Parties) from and against any loss, expense, damage or liabilities (or actions that may be asserted by any third party) that may result from any third party claims arising out of or in relation to the provision of the Services or any use by you of any deliverable item under this Services Contract and will reimburse the Indemnified Party for all costs and expenses (including legal fees on a solicitor client basis) incurred by the Indemnified Party in connection with any such action or claim.
- DOCUMENTS AND INFORMATION
Ownership of documents
In this clause 9:
- Information means any information, whether contained in documents or other materials, provided to us by you or by your agent, representative, officer, employee or anyone else at your request;
- Work means any advice or materials in any form, including documents, that we produce for the purpose of providing the Services, but excludes our Working Papers; and
- Working Papers means any files or working papers created by us as our record of providing the Services, in any form, and whether or not incorporating directly or indirectly the Information. Our Working Papers include, but are not limited to, the following items: internal memos; file notes; reconciliations; summaries, reviews and analyses of your Information prepared by us which do not form part of the deliverables under the engagement; records of our calculations, accounting, projections and other workings; records of progress checks; progress and status reports; records of any discussions, including minutes of meetings; and any other record or document which is ancillary to our Work.
All Information provided to Kelly+Partners will remain your property, however you consent to us making copies, including electronic copies, of the Information for our own purposes. We are entitled to retain any copies of the Information you provide to us or which forms part of Work or Working Papers.
Provision of the Services may result in the production of Work, including documents such as financial statements, income tax returns and audit reports, which will be supplied to you. Ownership of our Work, including documents, provided to you in respect of the provision of the Services will vest in you. To the extent permitted by law, all other documents produced by Kelly+Partners in respect of the provision of the Services, including Working Papers, will remain our property.
It is our practice to destroy documents belonging to us after they are more than seven years old. Your acceptance of these Terms includes your consent for us to destroy any documents that strictly belong to you which have been filed amongst our own papers.
Some Offices use an electronic document management system. In those offices, all documents received from clients are scanned and stored electronically. Your acceptance of these Terms includes your consent for Kelly+Partners to destroy any hard copy documents received from you.
Lien over documents
You agree that Kelly+Partners reserves the right to exercise a lien over all files, papers and documents including Information and Work relating to the Engagement Agreement or Confirmation Letter which are in Kelly+Partners’ possession or control as security for all outstanding amounts owed by you to Kelly+Partners including without limitation unpaid tax invoices, interest, default costs and enforcement expenses (Outstanding Amounts) until all Outstanding Amounts are paid in full to Kelly+Partners.
Where an Outstanding Amount remains unpaid beyond the due date, we also reserve the right to suspend provision of the Services until such time as the Outstanding Amount is paid. Suspension of the Services will not affect your obligation to pay us for Services outstanding at the date of the suspension.
- DISPUTE RESOLUTION
If there is a dispute relating to the Services or an Outstanding Amount, the parties agree to resolve the dispute in good faith. If the dispute is not resolved by the parties within 30 days, the parties agree to enter into mediation or another form of dispute resolution before commencing legal proceedings.
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 a mediator, then as selected by the Australian Disputes Centre (ADC). The mediation will be conducted in accordance with the ADC Guidelines to the extent they do not conflict with these Terms.
If the dispute is not resolved within 60 days after notice of the dispute is first made or such further period as agreed between the parties then the mediation will terminate.
- RECORD KEEPING
All records relevant to the preparation of an income tax return must be retained by a taxpayer for a period of five years from the relevant date and these must be available for examination by the Commissioner of Taxation upon request.
Taxpayers must satisfy minimum standards of reasonable care and demonstrate “reasonably arguable positions” in relation to contentious issues in order to minimise penalty exposures. The Australian Taxation Office does not require documents to be lodged with an income tax return, any work papers and research papers prepared to support amounts documented in the return must be sufficiently documented.
In the case of capital gains tax (CGT), you are required to retain records not only until the end of five years after a CGT event happens, but also five years after any further relevant CGT event can happen which would be relevant to determining whether you have made a capital gain or capital loss from the event. Additionally, you will also need to keep those records to substantiate any carry-forward capital loss which is intended to be applied to a future capital gain.
Where you are required to maintain records and fail to do so, penalties may be imposed under the taxation law.
From time to time, Kelly+Partners may communicate with you or provide you with certain documents, notices, disclosure or statements (Documents) by electronic means. Unless you notify us otherwise, you consent to receiving such communication or Documents by electronic means, including the delivery of documents by DocuSign or similar system.
During our performance of the Services we may wish to send messages and/or Documents to each other by e-mail. As e-mail carries with it the possibility of inadvertent misdirection, or non-delivery of confidential material, unless you notify us otherwise you consent to the use of e-mail in accordance with this clause.
Where messages are sent by e-mail, we will adopt the following procedures and require you to do likewise:
- If sending a confidential e-mail message, the sender will indicate if a response is not wanted in an electronic form. All risks connected with sending by e-mail commercially sensitive information relating to your business are borne by you and are not our responsibility. If you do not accept this risk, you should notify us in writing that e-mail is not an acceptable means of communication.
- Both parties will carry out procedures to protect integrity of data, in particular, it is the recipient’s responsibility to carry out a virus check on any attachments before launching any documents, whether received on disk or otherwise.
Kelly+Partners will not be prevented or restricted by anything in this Services Contract from providing services for other clients.
- PRIVACY OF 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.
Collection and use of personal information
- To review your ongoing needs;
- To enhance customer service and product options;
- To provide information and opportunities that we may believe are relevant to your financial needs;
- To respond to your requests or queries;
- To maintain contact with you;
- To notify you of seminars and other events;
- For administrative purposes;
- To conduct surveys and seek your feedback; and
- To meet any regulatory requirements.
The type of personal information we may collect includes your name, address, date of birth, place of birth, telephone number, email address, financial information, and details of superannuation arrangements, where relevant for the provision of the Services to you.
Disclosure of personal information
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. By accepting these Terms, you consent to us disclosing your personal information to our business partners and associates and to third parties when required by us to complete the Services.
Disclosure by you of personal information to us in the course of our engagement is subject to the Privacy Act. Accordingly, the Services are provided on the basis that you will only disclose personal information about an individual to us:
(a) for a purpose related to the performance of the Services;
(b) provided you have made all disclosures required under the Privacy Act;
(c) provided you have obtained any consents required under the Privacy Act; and
(d) provided to do so would not otherwise breach the Privacy Act.
As we rely on you to fulfil these obligations you will indemnify Kelly+Partners, the Group and its partners and staff, against any claim, loss or expense resulting from your failure to make any disclosure or obtain any consent required under the Privacy Act or otherwise to comply with the Privacy Act.
If the performance of the Services requires a third party to supply personal information to us on your request, it is your obligation to ensure that the third party complies with clauses (a) to (d) above and you will indemnify us against any claim, loss or expense resulting from that party’s failure to do so, or to otherwise comply with the Privacy Act.
- CLOUD COMPUTING
In providing the Services, Kelly+Partners may use Cloud Computing resources. Cloud Computing are computing resources that are usually provided by a third party over the internet, including on-demand access to networks, servers, data storage, databases, software and applications.
In agreeing to the terms of the Service Contract, you agree to our use of Cloud Computing resources for the provision of our Services. If you require any further information on our use of Cloud Computing resources for this engagement, please contact us.
- OUTSOURCING ARRANGEMENT
In certain circumstances, Kelly+Partners may engage a third party to assist with providing the Services.
In agreeing to the terms of the Service Contract, you agree to our use of outsourced service providers for the provision of our Services. If you require any further information on our use of outsourced service providers for this engagement, please contact us.
- FORCE MAJEURE
Neither of us will be liable to the other for any delay or failure to fulfil their obligations under this Services Contract to the extent that any such delay or failure arises from causes beyond their control, including but not limited to fire, floods, acts of God, acts of regulations of any governmental or supranational authority, war, riot, terrorist activities, strikes, lockouts and industrial disputes.
- ACQUIRED ENTITIES
The terms set out in this clause 18 of the Terms apply:
- where Kelly+Partners has acquired the business of another accounting firm (the Predecessor Business); and
- you were a client of the Predecessor Business.
This clause 18 of the Terms will apply until you sign an Engagement Letter which expressly states that this clause no longer has application.
Engaging or continuing to engage Kelly+Partners to provide the Service will evidence your continued acceptance of a binding Services Contract between us and these Terms will apply to all Services performed for you by Kelly+Partners under that Services Contract.
If no Engagement or Confirmation Letter has been issued in relation to an assignment, our fees will reflect time spent and such other factors as complexity, monetary values involved, specialist input required and the urgency of the matter. Goods and services tax (GST) at the prevailing rate will be added to and forms part of our fees.
Intellectual property rights in all documentation, systems, materials, methodologies and processes brought to any assignment or engagement or created in the course of the assignment or engagement shall remain and be vested in Kelly+Partners.
You agree that Kelly+Partners reserves the right to exercise a lien over all files, papers and documents including Information and Work relating to the services as security for all outstanding amounts owed by you to Kelly+Partners including without limitation unpaid tax invoices, interest, default costs and enforcement expenses (Outstanding Amounts) until all Outstanding Amounts are paid in full to Kelly+Partners .
We are entitled to vary the Terms at our discretion from time to time and by continuing to instruct us you accept the Terms as in place from time to time.
The Services Contract sets out the entire agreement and understanding between you and us relating to the Services. Without affecting Kelly+Partners responsibilities for other services it is engaged to perform on terms agreed separately in writing, the Services Contract replaces and supersedes any previous agreements, proposals, correspondence, understandings or other arrangements, statements or representations whether written or oral as to any facts or matters relating to you or to Kelly+Partners or the Services.
Engagement Letter to take Precedence
In the event of any inconsistency between the Engagement Letter and any other elements of the Services Contract, the Engagement Letter will prevail. If there is any inconsistency between any Engagement Letter or Confirmation Letter, the Confirmation Letter will prevail.
A term or part of a term of the Service Contract that is illegal or unenforceable may be severed from the Service Contract and the remaining terms or parts of the term of the Service Contract continue in force.
Neither party may, nor have the power to, assign or otherwise deal with its rights or obligations under this Services Contract without the prior written consent of the other party, except that Kelly+Partners may without consent assign or novate this Services Contract to a successor of the business of Kelly+Partners to which this Services Contract relates.
Should circumstances change and we are no longer permitted to provide a service to you because of auditor independence rules or legislation, we reserve the right to vary our Engagement Letter with your agreement so that we and you would not be in breach of such rules or legislation or to terminate the relevant Services. Where our engagement with you is terminated for these reasons, you will pay for all Services provided up to the date of termination.
Notices to produce documents
If we receive any legally enforceable notice or demand issued by a third party, including the Australian Securities & Investment Commission, Australian Taxation Office, Australian Stock Exchange, any government statutory body or instrumentality, or any court or tribunal in relation to or in connection with the Services you agree to pay our reasonable professional costs and expenses (including solicitor client expenses) in complying with or challenging any such notice or demand to the extent that our costs and expenses are not recovered or recoverable from the party issuing the notice or demand.
The Services Contract is governed by and must be construed in accordance with the laws of New South Wales and each party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts of New South Wales.
Terms of business v20
18 October 2022