Definitions
Words in the Reference Schedule have the same meaning as if set out adjacent to this Definitions section.
In this Agreement:
Agreement means the contract coming into existence when the Client accepts the terms of this offer.
Bill means any tax invoice for Professional Costs, Disbursements and Sundries rendered by the Firm in the form.
Business Day means a day that is not a Saturday, Sunday or any other day which is a public holiday or a bank holiday in the place where an act is to be performed or a payment is to be made.
Client means each entity identified in the Client Service Plane to whom the Firm provides Services.
Client Service Plan means an outline of the Services to be provided to the Client by the Firm from time to time.
Disbursements are all expenses incurred on the Client’s behalf by the Firm (but excluding Sundries) which are incurred in the course of the matter. They include (but are not limited to):
fees and charges (including fines and penalties) and imposed by the Australian Securities and Investments Commission;
taxes and levies (including fines and penalties) imposed by the Australian Taxation Office;
company registration fees;
barrister’s fees;
report fees;
document production fees;
expert’s fees, including travel and accommodation expenses;
bank charges;
search fees;
agent’s fees;
government charges, and taxes or duties (excluding GST applicable on the supply of Services).
Firm means Crestani Partners
GST means:
the same as it does in the GST Law;
any other goods and services tax, applying to this transaction in a similar way; and any additional tax, penalty tax, fine, interest or other charge under a law for such a tax.
GST Law has the same meaning as in the A New Tax System (Goods & Services Tax) Act 1999 (Cth).
Hourly Rates means the rates set out in the Client Service Plan.
Parties means the entities comprising the Firm, and the Client, and Party means either one of them.
Professional Costs means the amounts to be paid to the Firm for the provision of Services but excludes Disbursements and Sundries.
Professional Time is the time spent by staff of the Firm during the provision of Services and may include work undertaken by accountants and administration or other staff.
Recipient means the recipient of any Supply under this Agreement.
Services means the accounting, tax, advisory and other business services provided by the Firm.
Supply means any supply (as defined in GST Law) made by a Party under this Agreement.
Supplier means any Party making supply under this Agreement.
Value has the meaning given in the GST Law.
Interpretation
In this Agreement, reference to:
one gender includes the others;
the singular includes the plural, and the plural includes the singular;
a person includes a body corporate;
a clause, annexure or schedule is a reference to a clause in, or an annexure or schedule to, this Agreement;
a document (including this Agreement) includes any amendment or replacement of it;
a particular person includes the person’s executors, administrators, successors, substitutes (including persons taking by novation) and assigns;
a Party includes the Party’s executors, administrators, successors and permitted assigns;
a statute, regulation or provision of a statute or regulation (“Statutory Provision”) includes:
that Statutory Provision as amended or re-enacted from time to time; and
a statute, regulation or provision enacted in replacement of that Statutory Provision; and
money is to Australian dollars, unless otherwise stated;
“Including” and similar expressions are not words of limitation.
Where a word or expression is given a particular meaning, other parts of speech and grammatical forms of that word or expression have a corresponding meaning.
Headings (including those in brackets at the beginning of paragraphs) are for convenience only and do not form part of this Agreement or affect its interpretation.
A provision of this Agreement must not be construed to the disadvantage of a Party merely because that Party was responsible for the preparation of the offer or the inclusion of the provision in the offer.
If an act must be done on a specified day which is not a Business Day, it must be done instead on the next Business Day.
A provision, representation or warranty in favour of two or more persons is for the benefit of them jointly and each of them individually;
A provision, representation or warranty by two or more persons binds them jointly and each of them individually;
ENGAGEMENT
Acceptance and Variation of Agreement
This Agreement:
applies to each and every request for Services the Client; and
may not be varied by the Client except with the Firm’s prior written agreement; and
applies to the exclusion of all other terms and conditions, whether implied by law or otherwise.
Any request for Services by the Client will be deemed acceptance of this Agreement.
The Firm may, by giving reasonable prior notice, vary this Agreement.
Any order placed by the Client after notice of a variation has been given will be deed deemed acceptance of the variation.
Multiple Clients
Where two or more Clients have jointly retained the Firm, each Client warrants that the Firm will be able to obtain and rely on instructions given by any one Client, unless the Firm has received contrary instructions in writing.
Corporate Clients & Business Partnerships
Where the Client is an incorporated entity or carries on business in partnership with others, the Client warrants that the Client’s Instructing Nominee has the actual authority of the corporate entity (or entities) or partnership to instruct the Firm on the Client’s behalf.
Client Acknowledgements
The Client warrants that:
it has read and understood this Agreement and the Client Service Plan;
it has been advised to seek legal advice and other on this Agreement;
it has had sufficient opportunity to seek legal and other advice on this Agreement;
all of the information it has supplied and will supply to the Firm is true, correct and complete;
it has entered into this Agreement freely and voluntarily; and
this Agreement constitutes a valid and binding agreement on the Client.
The Firm enters into this Agreement based on the accuracy of the Client’s warranties.
PROFESSIONAL COSTS
Professional Costs
Professional Costs will be calculated as a function of:
the Professional Time spent on a matter; and
the relevant Hourly Rates,
unless a fixed fee arrangement has been negotiated and agreed with the Client for a particular range of Services.
The Firm will record the Professional Time it spends providing Services on a matter in six-minute units. Where Services are provided on a given occasion and less than six minutes of Professional Time is spent, the minimum amount charged to the matter will be one unit.
The Firm notes that the Client’s Professional Costs may vary dramatically given that:
any estimate is based on information which may be incomplete; and
the time actually spent on the matter will often be contingent on the acts and attitudes of other parties, which cannot necessarily be predicted in advance.
Disbursements & Sundries
In the course of a matter, it is usual for the Firm to incur Disbursements on the Client’s behalf. The Client must pay for any such Disbursements when required by the Firm. The client must also pay for Sundries.
Ongoing Disclosure Regarding Costs
The Firm will notify the Client in writing of any substantial change in the matters outlined in this Agreement as soon as is reasonably practical after becoming aware of the relevant change.
The Firm’s fees are subject to review and will change from time to time. When engaging our services, the Client agree that all reasonable increases in the Firm’s fees, once advised to the Client, will be taken to be a variation of any contract coming into existence following the acceptance of this Agreement.
Retaining Experts
During the currency of the Agreement, it may be necessary to engage other experts in order to properly conduct the matter on a client’s behalf. Where the Firm views this to be necessary it will advise the Client of this fact and will seek their instructions prior to engaging any expert.
Prior to engaging the expert, the Firm will provide to the Client in writing:
the information relating to costs and billing arrangements of the expert; and
all other information of a general nature relating to the provision of Services and the Client’s rights and obligations.
However, where the circumstances that require the engagement of an expert are urgent, the information referred to in the previous clause may be communicated to the Client orally and will then be subsequently confirmed in writing as soon as practical afterwards.
Billing
The Client’s obligation to make payment is contingent on the Firm rendering a Bill detailing sums owed to date for the provision of Services.
The Firm will render Bills:
on a monthly, quarterly or yearly basis; or
on the termination of our retainer.
The Firm reserves the right to render a Bill for Disbursements at any time.
Once rendered, all Bills are payable by the Client on or before 7 days of the date of the Bill.
If the Client pays by cheque and that cheque is not honoured on its 1st presentation, the Client must pay any bank charges incurred by the Firm as a result.
Interest
The Firm will charge interest where any Bill remains unpaid for more than 30 days from the date of the Bill.
Interest will be calculated daily and compounded monthly at a rate of 1% per month on the unpaid balance of a Bill.
The interest rate referred to in this clause is a specific interest rate and is not a rate of interest for the time being which is equal to (or worked out by reference to) a rate of interest determined and publicised by a third Party.
Commencement of Proceedings
If payment is not made within 90 days of receiving a Bill, the Firm reserves all of its rights with respect to the commencement of legal proceedings to recover outstanding sums.
However, in the event that the Client is to leave the relevant jurisdiction within the period specified in the preceding clause, the Firm reserves its right to commence proceedings at any time following the failure to pay a Bill on the specified payment terms.
Retention of File
The Firm will retain possession of the Client’s file, any documents, and any moneys held in trust during the time in which any moneys remain owing to the Firm for Professional Costs, Sundries, and/or Disbursements.
Limited Liability
The Client agrees and acknowledges that the Firm has advised it that its Liability in connection with the Services is limited by a scheme approved under Professional Standards Legislation.
SECURITY
The Firm may require the provision of reasonable security for the payment of Professional Costs, Sundries and Disbursements (including security for the payment of interest on unpaid Professional Costs) and may refuse to act or may stop acting for the Client if they fail to provide the requested security.
For the purposes of the preceding clause, the form of security requested may include (but is not limited to) security by way of payment of a specified amount into a general account. It may also be taken by means of any combination of registered mortgage, fixed or floating charge, pledge, lien, and other security interests in property.
Where money is paid into a general account, by accepting this Agreement the Client authorises the Firm to withdraw from the relevant account:
sums which are required to be paid to third parties as Disbursements; and
amounts for the payment of Professional Costs, Sundries, and of Disbursements.
COSTS REVIEW
In the event that the Client wishes to dispute all or any of the Professional Costs, Sundries or Disbursements charged by the Firm, the Client agrees that they will raise any concerns with the Firm in a timely manner and that the Client will use their best endeavours to resolve the matter through negotiation. The person with whom the Client may discuss the issue of disputed costs is the partner identified as the responsible partner in the Client Services Plan.
PROGRESS REPORTS
Subject to clause 6.3, the Client may request that the Firm provide the Client with a written report outlining the progress of their matter to date. The time spent in preparing this report will be Professional Time.
Subject to clause 6.3, the Client may request a written report outlining their Professional Costs incurred to date, or incurred since their last Bill (if any). The Client will not be charged for the provision of this service.
A request under clauses 6.1 and 6.2 must be reasonable in the circumstances, having regard to matters such as the frequency of requests of the relevant type, the complexity and length of the matter, and other relevant matters.
TERMINATION
The Client is entitled to terminate the Agreement at any time by the provision of written notice to the Firm. In this case the Client will be billed in accordance with clause 3 for Professional Costs, Sundries and Disbursements incurred to the date of termination.
The Firm is entitled to terminate the Agreement (with immediate effect) by the provision of written or oral notice where:
the Client has failed to pay a Bill within the period prescribed for payment; or
the Client has failed to comply with a request for the provision of security under clause 4.1; or
the Client has failed to provide the Firm with instructions which are proper, accurate, reasonable, truthful, or timely; or
the Client has indicated that the Firm has lost its or their confidence; or
the Client has unreasonably refused to follow the Firm’s advice in relation to the matter; or the Firm wishes to renegotiate the terms of the Agreement, and the Client declines to accept the terms of the renegotiated retainer; or
the Firm discovers that a conflict of interest exists or has subsequently arisen.
The Firm will not be liable for any losses, damages, costs and expenses of whatsoever nature or description that may otherwise result from a termination under clause 7.
RETENTION OF DOCUMENTS
After a matter is complete, the Firm will retain any papers to which the Client is entitled (but which are left in our possession) for a period of no more than 7 years. By accepting this Agreement, the Client authorises the Firm to destroy the file 7 years after the date of our final account.
GST
Taxable Supply
If any Supply made in accordance with this Agreement is a taxable Supply, the Supplier may, in addition to the Value of the Supply, recover an additional amount on account of GST from the Recipient.
Additional amount
The additional amount on account of GST referred to in clause 10.1:
is equal to the Value of the Supply multiplied by the prevailing GST rate; and
is payable not later than 14 days from the day the Supplier gives notice to the Recipient.
GUARANTEE AND INDEMNITY
In consideration of the Client entering into this Agreement with the Firm, each Guarantor agrees to guarantee and indemnify the Firm as follows:
to pay to the Firm on its written demand all moneys payable pursuant to the Agreement which are not paid by the Client within 14 days of the date for each payment; and
perform all other obligations of the Client under the Agreement upon the Firm on its written demand if it refuses or fails to do so within 14 days of the due date for performance.
The Firm may without affecting this guarantee grant time or other indulgence or compound or compromise with or release the Client or any other person or corporation (including any person or corporation liable jointly with us or severally in respect of any other guarantee or security).
Each Guarantor indemnifies the Firm against any loss which the Firm may incur because the Client may have exceeded the Client’s powers or may be incompetent to enter into the Agreement and against any loss which the Firm may incur by reason of the Client going into liquidation or becoming bankrupt.
If any payment made by the Client to the Firm in reduction of the amount owing under the Agreement is subsequently avoided by reason of any statutory provision our liability to the Firm shall be deemed not to have been discharged and the Guarantor the Firm and the Client as between themselves will be deemed to have had restored to them the rights and obligations which they each would have had if such payment had not been made.
Any demand or notice under this Guarantee may be made in writing signed by the Firm or its solicitors on its behalf and (without prejudice to any other mode of service for the time being permitted by law) may be served on the Guarantor by prepaid letter addressed to the Guarantor at the Guarantor’s address set out above. If posted, such notice or demand is deemed to be properly given on the day next following the day of posting.
Indemnity
As a separate undertaking, the Guarantor unconditionally and irrevocably indemnifies the Firm against all liability or loss arising from, and any costs, charges or expenses incurred in
connection with, a breach by the Client of this Agreement. It is not necessary for the Firm to incur expense or make payment before enforcing that right of indemnity.
PRIVACY
In respect of Personal Information held by the Firm in connection with this Agreement, the Firm agrees:
to comply with the Privacy Act and the Australian Privacy Principles in force under the Privacy Act;
to use Personal Information only for the Permitted Purposes;
not to disclose Personal Information without the written authority of the Client except for the Permitted Purposes;
not to transfer Personal Information outside Australia, or allow parties outside Australia to have access to it, without the prior approval of the Client;
to maintain a privacy policy on access to and correction of Personal Information, and other matters, that complies with the National Privacy Principles;
to ensure that any employee and agent requiring access to any Personal Information is under a legal obligation not to access, use, disclose or retain the information except in performing their duties of employment or engagement (as applicable) and is informed that failure to comply with this undertaking may be a criminal offence;
to notify the Client immediately if the Firm becomes aware of a breach of this clause by itself or by any of its employees and agents; and
to include equivalent provisions (including this clause) in any subcontract.
Despite any other provision in this Agreement, the Client agrees and acknowledges that the Firm may disclose any information provided by or relevant to a Client to a credit reporting agency and may obtain and rely on any report it obtains from them in relation to the Client.
In this clause, the following words have the following meanings:
‘Australian Privacy Principles’ has the meaning given in the Privacy Act;
‘Personal Information’ has the meaning given in the Privacy Act;
‘Permitted Purposes’ means any purpose in connection with the Firm fulfilling its obligations or exercising a right under this Agreement; and
‘Privacy Act’ means the Privacy Act 1988 (Clth).
For a full copy of our Privacy Policy please contact the office on 02 9600 9444 or email privacy@crestanipartners.com.au
GENERAL PROVISIONS
Governing Law
This Agreement is governed by the law in force in New South Wales and each Party submits to the exclusive jurisdiction of the courts of New South Wales.
Notices
Subject to any other contrary legal provision, the address of each Party as referred to in this Agreement or as notified to one another from time to time will be the address of that Party for the service of notices or other communications associated with this offer.
Any notice may be affected by personal delivery, or by facsimile, or by post, and if by post the date of service will be deemed to be 2 business days after the day of posting.
Entire Agreement
The Agreement will constitute the entire agreement of the parties about its subject matter and supersedes all previous agreements, understandings and negotiations on that subject matter.
Severability
If any part of a provision of the Agreement is unenforceable or illegal in a jurisdiction it is severed for that jurisdiction. The remainder of the Agreement will have full force and effect, and the validity or enforceability of the Agreement in any other jurisdiction is not affected. This clause has no effect if the severance alters the basic nature of the Agreement or is contrary to public policy.