TERMS AND CONDITIONS
1.1 Book Builders Pty Ltd trading as The Accounting Department (“TAD”) has set out in this document our basic terms and conditions of business (the “Terms”), which, together with our Proposal (together called “this Agreement”), will apply to all work TAD undertakes for you with respect to this engagement. If there is any conflict between these Terms and our Proposal, then the Proposal shall prevail.
1.2 For the purposes of the Terms, “TAD” includes its partners, employees and all its related entities.
2 Scope of appointment
2.1 The scope of our appointment is set out in our Proposal. Please let us know if our understanding of this scope is incorrect - we will not undertake tasks which are not specified in the Proposal or in later written correspondence. We do not offer audit, legal or taxation services.
2.2 Our duty of care is to our client named in the Proposal and to no other person. Any other person, who wishes to rely upon our advice, can only do so with our written agreement.
3.1 The quality of our services will depend on full and timely instructions from you. We will rely on the accuracy and completeness of information you provide to us. We will not independently verify information, unless requested to do so as a term of our engagement.
3.2 TAD shall be entitled to rely upon the accuracy of all information provided by you, or by others on your behalf, without independently verifying it.
3.3 You shall retain responsibility for the use of, or reliance on, advice or recommendations supplied by us in the delivery of the services.
3.4 You undertake that, if anything occurs after information is provided by you to TAD, to render such information untrue, unfair or misleading, you will promptly notify TAD and, if required by TAD, take all necessary steps to correct any announcement, communication or document issued which contains, refers to or is based upon, such information.
3.5 You acknowledge that information made available by you, or by others on your behalf, to, or which is otherwise known by, partners or staff of TAD who are not engaged in the provision of the Services shall not be deemed to have been made available to the individuals within TAD who are engaged in the provision of the Services.
4.1 You agree that during the provision of the Services, and for a period of 12 months thereafter, you will not approach, procure, entice or make any offer of employment to any TAD partner or employee involved in the provision of the Services, without the prior consent of a director of TAD.
4.2 You agree that during the provision of the Services, and for a period of 12 months thereafter, you will not approach, procure, or entice any TAD partner or employee to work for a related party or client of yours, without the prior consent of a director of TAD.
4.3 You agree that a breach of this clause constitutes a material breach of this agreement and the full amount payable for the whole term of this agreement will be become immediately due and payable. In the event that the breach happens during the last 12 months of this agreement or within the 12 months after the termination of this agreement, you agree that the amount payable for the breach is the greater of the fee estimate for 12 months of services as set out in this agreement or the total fees paid during the 12 months prior to the breach under this clause.
5.1 To do the best job we can, we may require access to your files, records, information technology systems, premises and people. Other resources may be required to ensure timely approval, development and sign-off of all project plans, specifications, accounts and deliverables. We understand you will provide us with reasonable access to these resources without charge.
6.1 You will not hold us responsible for any failure or delay in connection with our engagement caused by something outside our control. This could include another person's actions or omissions. Our fees may reflect any additional cost we incur from such a delay. If the delay is substantial, we may terminate our appointment.
7.1 Unless otherwise agreed we charge our fees on an hourly rate and issue bills on a fortnightly basis. Hourly rates will generally be set out in our Proposal, but are subject to regular review. Accordingly, they may change during the course of our engagement. If so, the revised rate will generally apply from the date of the change. We will issue bills setting out our fees and disbursements.
7.2 For engagements where we process your payroll, you agree that TAD will automatically pay our fees with each payroll process in respect of the payroll period. For all other engagements, you agree to pay our invoices within 9 days of the billing date. If an account remains unpaid, we may cease work on your appointment upon giving you reasonable notice.
7.3 Daily consulting rates are based on a working day consisting of 7.5 hours, however, we do not charge additional amounts for up to 30 minutes of extra time. Work completed on the same day after eight (8) hours will be charged at an hourly rate calculated on the basis of the quoted daily consulting rate divided by 8. For example, if a daily rate of $2,000 has been quoted, the hourly rate is $250.
7.4 We may charge daily interest on any outstanding balances at a rate of 2% over the 180 day bank bill rate and that interest will be payable on demand.
8.1 In addition to our fees, you agree to pay our reasonable out of pocket expenses. These may include copying/printing, call costs and travel (but will exclude any input tax credit that we are entitled to claim). Details of all applicable disbursements will be itemised on our fortnightly bills. We will charge you at our standard billing rate if we are required to produce documents or attend court as a result of our appointment at proceedings to which we are not a party. This may include reasonable legal fees incurred in responding to such requests.
9.1 We may provide you with an estimate of likely fees and costs. The final fees and costs may differ from the estimate. For example, the scope or nature of the appointment may change, or unforeseen circumstances may arise. Any estimate will be based on information you have provided, and may be given subject to assumptions. We will make our best effort to inform you of any increased cost.
10 Review of fees
10.1 We may review our quoted fees if you do not proceed with our engagement within 30 days of the Proposal, or if we are still performing the services more than 6 months from the date of the Proposal. The time based fees, if any, quoted in the Proposal or as separately quoted in a fee letter will remain in force until 31 December or 30 June (whichever occurs first) and we may increase fees for work continuing past that date. We review our time based fees six monthly.
11 Taxes including Australian Goods and Services Tax (GST)
11.1 In addition to our fees, you agree to pay to us any tax or other charge payable by us (now or in the future) in relation to our appointment.
11.2 Except where specified, all fees and costs referred to in our Proposal are exclusive of GST. You agree to pay the amount of any GST payable in relation to any supply made in connection with our appointment.
12.1 Both we and you agree to keep confidential any confidential information of the other, except to the extent required by law.
13 Reliance on advice by others
13.1 Unless we give written approval to the contrary, all reports, letters, information and advice are provided solely for your benefit and may not be disclosed to or relied upon by any other person. TAD shall not be under any obligation in any circumstance to update any advice or report, oral or written, for events occurring after the advice or report has been issued in final form.
14 Draft advice
14.1 We may provide draft or interim advice, reports or presentations to you. Please treat them as for information or discussion purposes, and subject to our written advice or final written reports. Do not rely on interim advice, reports or presentations.
15 Electronic mail
15.1 Any communications or documents transmitted by email may be interfered with, may contain computer viruses or other defects, and may not be successfully replicated on other systems. We will not be liable for any unauthorised copying, recording, reading or interference with that email, for any delay or non-delivery or for any damage caused to your system or any files in connection with the transmission. You agree that, unless requested otherwise, all correspondence will be communicated via email as the risks associated with using email are outweighed by the benefits of using email.
16 Your intellectual property
16.1 We will not acquire any ownership rights over any information you provide to us. 16.2 Except as provided below, on payment of all amounts you owe us, we will assign to you all copyright to reports, written advice and other deliverables (except software) we have provided. However, you irrevocably grant to us a free worldwide licence to use, copy, modify, adapt and exploit those deliverables, so long as doing so would not disclose any of your confidential information.
17 Our intellectual property
17.1 The processes, know-how, ideas, concepts and techniques we use and develop in the course of providing services to you are confidential to us. We retain sole and exclusive rights to them.
17.2 We will also retain all copyright and other intellectual property rights in: i) data, designs, models, methodologies, analysis frameworks, leading practices, specifications and other elements of the deliverables which we owned or developed before, or independently from, our appointment; and ii) all tools (and any enhancement, improvement or other derivative of those tools) including but not limited to software and working paper.
17.3 We will retain all interests in and rights to our working papers and other internal documents and information.
18 Feedback and Issue Resolution
18.1 Should you at any time wish to discuss any concerns or make a complaint about the Services we are providing, please contact a director of TAD. We will investigate any complaint promptly and do what we can to resolve the issue. The preferred channel for resolving disputes is via email (email@example.com) so that there is a written record of the issues discussed.
18.2 If the issue remains unresolved, all parties agree to enter into mediation, or another method of dispute resolution, before commencing legal proceedings.
18.3 In the event of a dispute, or where fees remain unpaid beyond the due date, we reserve the right to suspend all Services provided, until such time as the dispute is resolved or the fees are paid. Suspension of the Services will have no impact on your obligation to pay us for Services rendered to the date of suspension.
19.1 It is possible that a person may make a claim against us in connection with our appointment, including the services we provide to you. If this happens, we may suffer or incur liabilities, claims, costs, losses, fees and expenses, including legal costs (Losses). You agree to indemnify us against any such Losses, except to the extent a Loss is solely the result of our own negligence. One example of where the indemnity will apply is where the Losses are a consequence of any specific instruction or request you make, inaccurate information you provide to us, or any breach by you of the terms of our appointment.
20 Project Management
20.1 If you engage TAD to provide project management services, or TAD supplies you with personnel to undertake project management service you acknowledge that the TAD personnel must be included in all meetings, discussions regarding the project to ensure that the TAD personnel are able to properly assist you in their assignment.
20.2 You acknowledge that whilst TAD personnel may be involved in the decision-making process, they will never be the final decision maker. TAD accepts no responsibility for the decisions made during a decision making process that involves one of your employees.
20.3 TAD will charge for all project management services, including providing estimates for the time involved in each stage of a project.
21 Limitation of liability under the Professional Standards Act
21.1 In this section, we set out, and you accept, the limitations which apply to our liability to you should you have reason to make a claim against us. The limitations and exclusions are accepted by both of us to be fair and reasonable, given the duties we are undertaking, the sums to which we are entitled and the availability (and cost) of insurance.
22 Contractual limitations of liability
22.1 In this section, we limit our liability to you in connection with our appointment and the services we provide to you. However these limitations will only apply to the extent permitted by law: i) maximum quantum - whether or not the PSA or Scheme applies, our liability for all claims directly or indirectly connected with our appointment (whether in negligence or otherwise and whether to you or any other person) is limited to $1,000 (excluding GST); ii) minimum quantum - whether or not the PSA or Scheme applies, our liability for all claims directly or indirectly connected with our appointment must exceed $500 before you proceed with any claim against TAD. iii) exclusion of implied terms - all warranties, conditions or other terms implied by statute, common law or trade custom or usage in relation to our appointment are excluded and do not apply (however this does not limit any powers, rights or entitlements conferred on us by law, for example the powers conferred by the Corporations Act where we are required to act as a receiver, receiver and manager, other controller or administrator); iv) terms implied by TPA - if we are liable for 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 supplying of the services again or the payment of the cost of having the services supplied again, whichever we elect; v) indirect losses - we will not be liable for any indirect or consequential loss you suffer, such as by way of loss of revenue or loss of profits; and vi) loss caused by others - we will not be liable to you or any other person to the extent that you or such other person are responsible for or materially contribute to an act or omission that contributes to your loss. The above operate as separate and independent limitations.
22.2 If you are using the personnel of TAD to produce work that will be on-charged to a third party for gain, you agree that TAD is providing the personnel on a labour hire basis and TAD takes no responsibility for the work produced by its personnel. You will take all responsibility for the work produced by TAD ensuring that the work produced is at a level that meets yours and your client’s requirements. The Proposal will state if the supply of the personnel is on a labour hire basis.
22.3 If it is stated in the Proposal that the provision of services by TAD is for personnel supply, then you agree that TAD and the personnel supplied by TAD will not be held responsible for any of the actions or inactions of TAD or the personnel supplied by TAD. You will be responsible for directing the TAD personnel and for the outcomes of that action. TAD will at all times pay the direct and indirect costs (payroll tax, workers compensation/income protection, and superannuation) of the supplied personnel.
23.1 Unless otherwise specified in the proposal/engagement letter, the Initial Term of this Agreement is for a period of 12 months from the date that this Agreement is accepted by you.
23.2 After the Initial Term of this Agreement, either of us may terminate our engagement by giving three calendar months written notice, or immediately in the case of material breach by the other. If this happens, you agree to pay our fees and disbursements incurred up to termination and for any work that we are required to undertake after termination.
23.3 If at any time during the Initial or subsequent Term of this Agreement you cease to use our services or wish to terminate this agreement without notice, for any reason other than material breach, you agree to pay us the remaining fees due under this Agreement to the end of the Term, as a Termination Payment. The Termination Payment is to be calculated on the basis of the Fee Estimation as set out in the Proposal, or the previous three months actual charges, whichever is the greater. That is, if the calculation base is $500/monthly and $200/quarterly and you terminate this agreement after the end of the Initial Term without notice, you agree to pay us $1,700. Of course, if you provide notice and continue to allow us to provide services for three calendar months, there will be no Termination Payment payable.
24 Information of other clients
24.1 We may hold or have access to information as a result of acting for other clients. We are not obliged to disclose this information to you or to use that information in advising or acting for you.
25 General provisions
25.1 The following general provisions will apply to our appointment and the agreement between us which governs it (Agreement): i) Governing law - All aspects of our appointment are governed by the laws of the state or territory of the TAD office specified in the Proposal (or, in the absence of an Proposal, on the letterhead of the TAD office performing the services). Both of us irrevocably submit to the exclusive jurisdiction of the Courts of that state or territory. ii) Severance - If at any time any provision of this Agreement is or becomes illegal, invalid or unenforceable in any respect that will not affect or impair the legality, validity or enforceability of any other provision. iii) Variation - This Agreement may only be varied by written agreement of the parties. iv) Survival - Provisions of this Agreement that are capable of having effect after termination will survive its termination. v) Independent contractor - We will provide the Services as an independent contractor. Nothing in this Agreement is to be construed to create a partnership, joint venture or other relationship. No party has the right, power or authority to oblige or bind the other in any manner. vi) Dispute Resolution - If there is a dispute relating to this Agreement, the parties will submit to mediation before having recourse to any other dispute resolution process. Written notice of the dispute will be given for it to be submitted to mediation before a mediator chosen by the parties or, where the parties cannot agree, by the Australian Commercial Disputes Centre (ACDC). The parties will use their best endeavours to settle the dispute promptly. The mediation will be conducted in accordance with the ACDC Mediation Guidelines to the extent that they do not conflict with the provisions of this clause. If the dispute is not resolved within 60 days after notice of the dispute, the mediation will terminate unless the parties otherwise agree. vii) Limitation - Financial Services - We and our representatives do not provide financial services when providing services under this Agreement. Nothing in any Proposal should be construed as the provision of a financial service. In particular, we may provide an eligible service under reg 7.1.29 of the Corporations Regulations as an integral part of an exempt service that we conduct, but such services are taken not to be financial services. We are not the holder of an Australian financial services licence and rely upon all other available exemptions from the requirement to hold such a licence as in force by ASIC or under the Corporations Regulations from time to time. viii) Acceptance - Your continued instructions confirm your acceptance of these terms and the Agreement. ix) Force majeure - If the performance of this Agreement by a party, is prevented or restricted by reason of fire, storm, flood, earthquake, war, labour dispute, transportation embargo, law, order, or directive of any government in matters relating to this Agreement, or any other act or condition beyond the reasonable control of that party, then the party is excused from such performance to the extent of the same, but will use their best efforts to avoid or remove the causes of non-performance and to cure and complete performance with the utmost dispatch.
26 Services Provider License Agreement (SPLA)
26.1 Set out below are the Microsoft SPLA Customer Terms that are incorporated into these terms and conditions in relation to your remote use of the “TAD” server.
END USER LICENSE TERMS - TERMS AND CONDITIONS REGARDING USE OF MICROSOFT SOFTWARE This document governs the use of Microsoft software, which may include associated media, printed materials, and “online” or electronic documentation (individually and collectively, “Products”) provided by Book Builders Pty Ltd (hereinafter referred to as “Customer”). Customer does not own the Products and the use thereof is subject to certain rights and limitations of which Customer must inform you. Your right to use the Products is subject to the terms of your agreement with Customer, and to your understanding of, compliance with, and consent to the following terms and conditions, which Customer does not have authority to vary, alter, or amend.
1 DEFINITIONS. “Client Software” means software that is installed on a Device that allows the Device to access or utilize the Products. “Device” means each of a computer, workstation, terminal, handheld PC, pager, telephone, personal digital assistant, “smart phone,” server or other electronic device. “End User” means an individual or legal entity that obtains Software Services directly from Customer, or indirectly through a Software Services Reseller. “Software Documentation” means any end user document included with server software. “Redistribution Software” means the software described in Paragraph 4 (“Use of Redistribution Software”) below. “Software Services” means services that Customer provides to you that make available, display, run, access, or otherwise interact, directly or indirectly, with the Products. Customer must provide these services from data center(s) through the Internet, a telephone network or a private network, on a rental, subscription or services basis, whether or not Customer receives a fee. Software Services exclude any services involving installation of a Product directly on any End User device to permit an End User to interact with the Product.
2 OWNERSHIP OF LICENSED PRODUCTS. The Products are licensed to Customer from an affiliate of the Microsoft Corporation (collectively “Microsoft”). Microsoft Products are protected by copyright and other intellectual property rights. Products and other Product elements including but not limited to any images, photographs, animations, video, audio, text and “applets” incorporated into the Products are owned by Microsoft or its suppliers. You may not remove, modify or obscure any copyright trademark or other proprietary rights notices that are contained in or on the Products. The Products are protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. Your possession, access, or use of the Products does not transfer any ownership of the Products or any intellectual property rights to you.
3 USE OF CLIENT SOFTWARE. You may use the Client Software installed on your Devices only in accordance with your agreement with Customer and the terms under the document, and only in connection with the Software Services, provided to you by Customer. The terms of this document permanently and irrevocably supersede the terms of any Microsoft End User License Agreement that may be presented in electronic form during the installation and/or use of the Client Software.
4 USE OF REDISTRIBUTION SOFTWARE. In connection with the Software Services provided to you by Customer, you may have access to certain “sample,” “redistributable” and/or software development (“SDK”) software code and tools (individually and collectively “Redistribution Software”). YOU MAY NOT USE, MODIFY, COPY, INSTALL AND/OR DISTRIBUTE ANY CLIENT SOFTWARE AND/OR REDISTRIBUTION SOFTWARE. Microsoft does not permit you to use any Redistribution Software unless you expressly agree to and comply with such additional terms, as provided to you by Customer.
5 COPIES. You may not make any copies of the Products; provided, however, that you may (a) make one copy of Client Software on your Device as expressly authorized by Customer; and (b) you may make copies of certain Redistribution Software in accordance with Paragraph 4 (Use of Redistribution Software). You must erase or destroy all such Client Software and/or Redistribution Software upon termination or cancellation of your agreement with Customer, upon notice from Customer or upon transfer of your Device to another person or entity, whichever occurs first. You may not copy any printed materials accompanying the Products.
6 LIMITATIONS ON REVERSE ENGINEERING, DECOMPILATION AND DISASSEMBLY. You may not reverse engineer, decompile, or disassemble the Products, except and only to the extent that applicable law, notwithstanding this limitation, expressly permits such activity.
7 NO RENTAL. You may not rent, lease, lend, pledge, or directly or indirectly transfer or distribute the Products to any third party, and may not permit any third party to have access to and/or use the functionality of the Products except for the sole purpose of accessing the functionality of the Products in the form of Software Services in accordance with the terms of this agreement and any agreement between you and Customer.
8 TERMINATION. Without prejudice to any other rights, Customer may terminate your rights to use the Products if you fail to comply with these terms and conditions. In the event of termination or cancellation of your agreement with Customer or Customer’s agreement with Microsoft under which the Products are licensed, you must stop using and/or accessing the Products, and destroy all copies of the Products and all of their component parts within thirty (30) days of the termination of your agreement with Customer.
9 NO WARRANTIES, LIABILITIES OR REMEDIES BY MICROSOFT. Microsoft disclaims, to the extent permitted by applicable law, all warranties and liability for damages by Microsoft or its suppliers for any damages and remedies whether direct, indirect or consequential, arising from the Software Services. Any warranties and liabilities are provided solely by Customer and not by Microsoft, its affiliates or subsidiaries.
10 PRODUCT SUPPORT. Any support for the Software Services is provided to you by Customer or a third party on Customer’s behalf and is not provided by Microsoft, its suppliers, affiliates or subsidiaries.
11 NOT FAULT TOLERANT. The Products are not fault-tolerant and are not guaranteed to be error-free or to operate uninterrupted. You must not use the Products in any application or situation where the Product(s) failure could lead to death or serious bodily injury of any person, or to severe physical or environmental damage (“High Risk Use”).
12 EXPORT RESTRICTIONS. The Products are subject to U.S. export jurisdiction. Customer must comply with all applicable laws including the U.S. Export Administration Regulations, the International Traffic in Arms Regulations, as well as end-user, end-use and destination restrictions issued by U.S. and other governments. For additional information, see http://www.microsoft.com/exporting/.
13 LIABILITY FOR BREACH. In addition to any liability you may have to Customer, you agree that you will also be legally responsible directly to Microsoft for any breach of these terms and conditions.
14 INFORMATION DISCLOSURE. You must permit Customer to disclose any information requested by Microsoft under the Customer’s Agreement. Microsoft will be an intended third party beneficiary of your agreement with Customer, with the right to enforce provisions of your agreement with Customer and to verify your compliance.