Terms and conditions
1. This agreement
These pages contain the terms and conditions (Terms) that apply in respect of the professional services we are engaged to provide to you (Services), and which are to be read in conjunction with the engagement letter we issued to you (Engagement Letter). Where there is any inconsistency between the Engagement Letter and these Standard Terms and Conditions, the engagement letter will prevail to the extent of the inconsistency.
For the purposes of these Terms, unless the context otherwise requires:
- any reference to “we, us, our” is a reference to Baumgartner Super, and
- any reference to “you, your” is a reference to the party or parties that have engaged us to provide Services.
These Terms together with the Engagement Letter constitute the terms of our engagement to provide the Services to you (Agreement). References to the “Agreement” in these Terms is a reference to either or both the Terms and the Engagement Letter, as the context requires.
This Agreement constitutes the entire agreement between the parties with respect to our work under this Agreement and supersedes all prior agreements, proposals, oral and written representations, and negotiations.
2. Term
You will be taken to have accepted the Agreement, including these Terms, on the earlier of the date:
- that you sign and return the Engagement Letter
- you otherwise advise us in writing, or
- you provide us with instructions after the date of the Engagement Letter.
The Agreement will terminate when either:
- we have completed providing Services to you,
- if we do not receive the information for audit for a subsequent financial year within 12 months of the end of that financial year, or
- the provision of Services is terminated either by you or by us,
and you have paid us fees rendered in respect of Services provided in respect of the Agreement and any other outstanding amounts.
3. Termination of Agreement
You may choose to terminate our engagement by giving us written notice at any time. If you do so, you shall be obliged to pay our fees for work done and for other charges incurred up to the time of the termination. Subject to fulfilling our professional responsibilities, we may terminate our engagement at any time, including where you expect us to do something unlawful, by giving you reasonable notice or if our fees are not paid when due.
4. Our obligations
We will provide the Services set out in the engagement letter with competence, due care, and diligence.
We will comply with the professional and ethical standards of the Accounting Professional and Ethical Standards Board. This includes APES 110 Code of Ethics for Professional Accountants (including Independence Standards), which among other things contains provisions that apply if we become aware of any actual or potential ‘non-compliance with governing laws or regulations’ (NOCLAR). Where any such non-compliance poses substantial harm (such as serious adverse consequences to investors, creditors, employees, auditor, group auditor or the public), we may be required to disclose the matter to an appropriate authority.
5. Who may instruct us
You confirm that you, and your representative (e.g. accountant or financial planner) are authorised to give us instructions and information on behalf of the individual trustees/corporate trustee we are acting for and to receive our advice and documents on their behalf.
6. Ownership of documents
Any information provided to us to perform the Services shall be your property. Any other documents brought into existence by us, including general working papers (in any form whatsoever, including physical and electronic), will remain our property.
If our Services are terminated (by either party), we shall be entitled to retain all documents owned by you until payment in full of all outstanding fees. Where copies of any documents released to you are required for our records, you will be charged for the cost of photocopying at our normal rates.
7. Fee accounts and terms
Our fees will be charged on the basis set out in the engagement letter and have been set based on the level of skill, responsibility, importance, and value of the advice, as well as the level of risk.
Disbursements represent out-of-pocket payments made by us on your behalf and may include such items as title searches and company searches. Where we incur disbursements on your behalf, we will charge you the GST inclusive amount of those expenses where appropriate.
Our fee for professional services may be tendered by us prior to, during, or on the completion of the Services. We require payment within 14 days of issue of our invoice. We reserve the right to suspend our services or to cease to act for you on giving written notice if payment of any fees is unduly delayed.
Fees can be paid by cheque, direct to our bank account or by credit card. Our bank account details for payment are:
Account Name: Baumgartner Super
BSB: 033039
Account Number: 603491
(Please include client name and invoice number in narrations).
You have the ability to pay our fees via our website www.baumgartnersuper.com.au. A processing fee applies to credit card payments and is currently 1.5% (Visa and Mastercard).
8. Our agents
In some instances, our fees for the Services will be paid by you, or your representative, to agents facilitating the Services on our behalf. Should the fee either not be paid by you or your representative to the agent, or by the agent to us, we accept no responsibility to the non-performance of the Services outlined in the Engagement Letter.
9. Your representatives
Where our fees for the Services provided to you are invoiced by us to your representative (e.g. accountant or financial planner) to pay on your behalf, you agree to indemnify us should the fee not be paid by your representative.
10. Investment and financial advisory advice
We will not provide you with investment or financial advice regulated under the Corporations Act 2001 (Cth).
11. Confidentiality
We will take all reasonable steps to keep your information confidential, except where:
- we need to disclose your information to our service providers or regulatory bodies in performing the services, our professional advisers or insurers or as part of an external peer review from time to time. Our files may also be subject to review as part of the quality review program of Chartered Accountants Australia and New Zealand and CPA Australia. By accepting this engagement, you acknowledge that, if requested, our files relating to this engagement will be made available under this program. We will take reasonable steps to ensure any such recipient (other than a regulatory body) keeps such information confidential on the same basis.
- we are required by law, regulation, a court of competent authority, or those professional obligations referred to in section 8 above, to disclose the information; or
- you give us permission to disclose the information.
We may retain your information during and after our engagement to comply with our legal requirements or as part of our regular IT back-up and archiving practices. We will continue to hold such information confidentially. We may mention that you are a client for promotional purposes.
12. Privacy
During our work, you may disclose personal information about yourself or others to us. This information will be used for the purpose of our engagement and will be gathered, maintained, and secured in accordance with the requirements of the Privacy Act 1988 (Cth) as amended. We may also disclose personal information to third parties as part of performing the Services. A copy of our privacy policy is available on our website at www.baumgartnersuper.com.au/privacy-policy
13. Conflict of interest
We will inform you if we become aware of any conflict of interest in our relationship with or in our relationship with you and another client. Where conflicts are identified which cannot be managed in a way that protects your interests then we will be unable to provide further services to some or all of the persons to whom this engagement applies. If this arises, we will inform you promptly.
We may act for other clients whose interests are not the same as or are adverse to yours, subject to the obligations of conflicts of interest and confidentiality referred to above.
14. Third party involvement
In providing our services to you, we utilise the following programmes and Cloud Computing which contains your personal and financial information. Also listed below is the location of where those companies store their data:
- Secure Returns Melbourne, Australia
- MYOB Sydney, Australia
- Microsoft Office 365 Sydney, Australia
15. Electronic communication
You agree that we may communicate with you, your accountant, your financial planner, or any other agent of the aforementioned using electronic media. You acknowledge that electronic media is inherently insecure, may be intercepted, may not be delivered and may contain viruses and it may be unsafe or use or cause damage to the effectiveness or your software or computer network systems. Neither of us is responsible for loss suffered in connection with the use of such electronic means.
16. Delays
We will not be liable for any failure or delay in performing the Services if that failure or delay arises from anything beyond our control, including the untimely performance by you of your obligations, in which case we are entitled to review our fees and, if the delay is substantial, terminate this agreement.
17. Complaints and dispute resolution
If a dispute in connection with the Agreement arises between you and us, both parties agree to use reasonable endeavours to resolve any dispute by mediation before bringing a legal claim or starting legal proceedings against the other. 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 Disputes Centre. The mediation will be conducted in accordance with the Australian Disputes Centre’s Guidelines for Commercial Mediation, to the extent that they do not conflict with the provisions of this clause.
18. Indemnity for liability to third parties
You agree to indemnify us against all liabilities, claims, costs and expenses collectively referred to as “LOSS” (including any GST payable by us on amounts paid by you under this indemnity), incurred by us in respect of any claim by a third party which is related to, arises out of, or is any way associated with the Services. However, the indemnity does not apply to any Loss in respect of any matters which are finally determined to have resulted from our negligent, wrongful, or wilful acts or omissions.
19. Limitation of liability
Our liability is limited by a scheme approved under Professional Standards Legislation. You agree not to bring any claim against any of our directors, principals, or employees in their personal capacity.
You may wish to obtain further information in relation to the PS Act and the Scheme, including details with respect to specific exclusions in relation thereto. Please refer to the following websites for further information:
The Professional Standards Council
Chartered Accountants Australia and New Zealand
https://www.charteredaccountantsanz.com.au
You agree that you have fully considered the limitation of our liability created by this clause, you acknowledge that we have advised you herein and we accept that you may wish to obtain legal advice on all questions arising from the terms of our engagement letter and, in particular, the limited liability of provisions, because they may impact on your legal rights.
20. Severability
Both you and we agree that each of the promises and undertakings given in this Agreement are independent from one another and severable.
21. Governing and law jurisdiction
All aspects of the Services and the Agreement are governed and construed in accordance with the laws of Victoria.
Both you and we irrevocably submit to the exclusive jurisdiction of the Courts of Victoria, notwithstanding that your activities, or any part of the work we do, or your acceptance of the Agreement may take place outside the State of Victoria.