1. PERFORMANCE OF THE SERVICES
1.1 The scope of the Services is limited to the work specified in the Client Services Agreement (or Proposal). Either you or Crowe Australasia may request changes to the Services.
1.2 We will use reasonable commercial efforts to provide the Services in an efficient and timely manner using all reasonable skill and expertise.
1.3 The Services are not legal Services and do not constitute legal advice.
1.4 Dates in any timetable set out in the Client Services Agreement (or Proposal) or otherwise advised are intended for planning and estimating purposes only and are not contractually binding.
1.5 The Services will be provided solely for your benefit and use. We accept no liability or responsibility to any third party in respect of the Services, except for any external audit engagement.
1.6 In the course of providing the Services, we may provide oral comments or draft reports, presentations, letters, schedules and other documents. You may not rely on such oral comments or draft documents, conclusions or advice as they may be subject to further work, revision and other factors. The final results of our work will be set out in its final report or advice.
1.7 We will not audit or independently verify the accounting records or information that you have provided in connection with the Services unless specifically engaged to do so.
1.8 Our work will be based on documents and information provided to us or obtained by us in connection with the Services. We will not verify the accuracy and completeness of such documentation or information unless specifically engaged to do so, or to the extent necessary to perform an assurance engagement.
1.9 Changes in the law may take place before our advice is acted upon or may be retrospective in effect. We accept no responsibility to inform you of changes in the law or interpretations affecting advice previously given by us.
1.10 We often have to rely on external information or public records to carry out your instructions. We do not verify the information or public records for accuracy or completeness. We do not accept responsibility and will not be liable for any direct or indirect damage or loss caused by errors or omissions in external information.
1.11 Some of the matters on which we may be asked to advise you may have tax implications for other entities, directors, employees or any other parties. We will not bear any liability to you or any other relevant entities, directors, employees or any other parties in respect of those tax implications, and you indemnify us from and against any loss or damage suffered or incurred by us arising out of or in connection with any action or claim by any such entities, directors, employees or other parties in this respect.
1.12 In the context of Taxation Services requested:
(a) we will advise you of your rights, obligations and options available under the Taxation Law. We also advise you of your rights or options available under Taxation Law with respect to the seeking of a private ruling and the lodging of objections and appeals against adverse positions adopted by the Revenue Authorities; and
(b) we will advise you on the application of the Taxation Law, including any possible penalties and other legal tax consequence, so as to allow you to make an informed decision of the course of action to be taken.
2. YOUR OBLIGATIONS
2.1 The timely completion of the Services requires your cooperation in the provision of information, documents and resources relevant to the Services. Estimates of time for completion of the Services are given on the assumption that we receive this cooperation. We may charge additional fees and expenses which result from delays in providing this cooperation.
2.2 You agree to:
(a) provide all information, documents and resources (“Materials”) that we reasonably require to enable us to provide the Services including arranging access to third parties, your premises and systems, and providing reasonable working facilities for us (where applicable);
(b) ensure that appropriate back up, security and virus checking procedures are in place for any computer facilities you provide;
(c) make senior staff available for consultation on request;
(d) make decisions promptly to facilitate the performance of the Services;
(e) bring to our attention any changes in the Materials provided to it as originally presented and ensure that Materials 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.
2.3 You acknowledge that information relating to you, or that you make available and known by our Principals/Partners or staff who are not engaged in performing the Services, shall not be deemed to have been made available to the individuals within Crowe Australasia who are engaged in the provision of the Services.
2.4 Except as required by law, you must not provide any documentation or deliverables in respect of the Services to any third party (including without limitation, the filing of information containing or referring to any of our reports with regulators or the inclusion of our reports in any public document) without our written consent. For any external audit engagement, our audit report, and where applicable, independence declaration may be included within the financial statements to which they apply, but any other documentation or deliverables are included within this clause.
2.5 We advise, and you acknowledge that:
(a) you are responsible for the accuracy and completeness of the particulars and information (including the Materials) provided by you;
(b) any advice given to you is only an opinion based on the actual knowledge of your particular circumstances of individuals within Crowe Australasia who are engaged in the provision of the Services; and
(c) a taxpayer (you) has obligations under self-assessment to keep full and proper records in order to facilitate the preparation of accurate returns
3. INCOME TAX RETURNS
3.1 All income tax returns are subject to examination by the Australian Taxation Office ("ATO"). You may be requested to produce documents, records or other evidence to substantiate items shown on the income tax return.
3.2 The preparation of your income tax return does not constitute a prudential 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 to ensure that items shown are accurately stated so that amendments can be made for any incorrect matters.
4.1 In this Contract, “Confidential Information” means all non-public information or documents which either party receives or produces in connection with the Services (including our working papers, the Client Services Agreement (or Proposal) and our business processes and methodologies) but does not include any information which is:
(a) or becomes generally available to the public other than as a result of a breach of this clause;
(b) known to the other party prior to us commencing the Services;
(c) received from a third party who owes no obligation of confidence in respect of the information; or
(d) developed by either party independently of the Services to which this Contract relates.
4.2 Subject to clause 4.4, neither you nor Crowe Australasia may disclose Confidential Information about or belonging to the other without the other’s consent.
4.4 Either party may disclose Confidential Information:
(a) to its insurers or legal advisors, provided that such persons agree or are otherwise required to ensure that the Confidential Information remains confidential;
(b) to the extent required to do so by law; or
(c) to the extent required for the proper performance of the Services.
4.5 Provided we do not disclose any Confidential Information, we may cite the performance of the Services to clients as an indication of our experience.
4.6 You must not use our name or logo on any websites or in any public statement, (including filing all or part of a report with a regulator or including all or part of a report in any public document) without obtaining our prior written consent. You must not make any public statement about us or the Services without our prior consent.
5.2 If the performance of the Services requires a third party to this Contract to supply personal information to us on your request, you must ensure that the third party has satisfied the requirements of the Privacy Act and is permitted by the Privacy Act to disclose such personal information to us.
5.3 If the Services require us to collect personal information from a third party, you must do and be responsible for all things necessary (including obtaining appropriate consents from, and providing privacy notices to, any third parties) for us to collect such personal information.
5.4 You agree to comply with the Privacy Act when providing us with information.
6. INTELLECTUAL PROPERTY
6.1 Intellectual property rights in all documentation, systems, materials, methodologies and processes owned by us or created in the course of us performing the Services shall remain and be vested with us. We may, in future engagements with other clients, use techniques, methodologies, ideas, concepts, information and general knowhow gained in the course of performing the Services provided such use does not involve the unauthorised disclosure of your Confidential Information.
6.2 We may use or develop software, including spreadsheets, databases and other electronic tools (“Tools”) in providing the Services. If we provide these Tools to you, you acknowledge that they are not your property, were developed for our purposes and without consideration of any purposes for which you might use them, are made available on an “as is” basis for your use only and must not be distributed to or shared with any third party. To the full extent permitted by law, we make no representations or warranties as to the sufficiency or appropriateness of the Tools for any purpose for which you or a third party may use them.
6.3 You grant us a non-exclusive, royalty free, worldwide licence (including a right to sublicence) to use, copy, distribute, make derivative works and communicate the Materials to the extent necessary to enable us to provide the Services to you and for the purpose of performing our obligations under this Contract.
6.4 You warrant that any use of the Materials by us will not infringe the intellectual property rights of any third party and you shall indemnify us from and against any loss or damage suffered or incurred by us arising out of or in connection with any actions or claims alleging that our use of the Materials infringes the intellectual property rights of a third party.
7.2 You must immediately advise us if you become aware that any document is, or is reasonably likely to be, required as evidence in a legal proceeding, so that the document can be delivered to you for safe keeping.
7.3 If we are provided with custody of any documents by you or on your behalf, including share registers or constitution documents, those documents will be retained during the course of the Contract (unless their earlier return is requested), at the end of which the file and documents will be returned to you unless separate arrangements have been made.
7.5 We reserve the right to exercise a lien over any documents and files belonging to you which may be in our possession.
9. LIMITATION OF LIABILITY
9.1 Subject to clauses 9.2 and 9.4, our liability for loss or damage arising out of or in connection with the Services, whether arising from breach of contract, tort (including, without limitation, negligence), breach of statutory duty or otherwise, is limited to an amount equal to ten times the fees payable by you for the Services (“Liability Cap”).
9.2 However, the Liability Cap does not apply to the extent prohibited by the Corporations Act 2001 (Cth) ("Corporations Act") or any other law.
9.3 The parties acknowledge that the Australian professional standards legislation, including the Treasury Legislation Amendment (Professional Standards) Act 2004 (Cth), (“The Australian Professional Standards Legislation”) may apply in accordance with its terms in relation to our liability for loss or damage arising out of or in connection with the Services.
9.4 To the extent permitted by law, if, under any applicable Australian Professional Standards Legislation, our maximum liability for loss or damage arising out of or in connection with the Services would be:
(a) We may change our fee scale from time to time. Rates quoted to you remain in force until the next 31 December or 30 June (whichever is sooner). We may increase our fees for any work performed after these dates.
(b) Notwithstanding 10.5(a),we reserve the right to change our rates and fees outside these dates if there is a change in the circumstances under which fees were originally quoted to you.
(c) If we change our fees in accordance with clause 10.5(a) or 10.5(b), we will provide you with written notice. If you do not agree to the change in fees, you may terminate this agreement in accordance with clause 14.1(b). If you agree to the change in fees, or send in work following our notice to you, or if we do not hear from you within 30 days of providing you with such notice, the change in fees will be deemed as accepted by you.
(d) Your obligation to pay us the fees and expenses arises at the commencement of the Contract after which you will be issued an invoice(s). Fees and expenses will be invoiced monthly and are payable within 14 days of the invoice date. Where an amount for GST is stated to be a component of the fees and expenses, our invoice will be a compliant “tax invoice” for GST purposes.
10.6 We may charge interest on amounts which are overdue by more than a month at a rate capped at 10%, except for any Audit, Review or Other Assurance engagement. If your account remains unpaid and there is no satisfactory explanation for non-payment we may:
(a) start proceedings to recover the amount owed, plus default interest (if applicable) and any collection costs incurred; and/or
(b) do no further work for you, and will not release your papers and files until all overdue amounts and any interest are paid (if applicable).
10.7 If we have assessed that no GST should be payable in respect of the Services, and for whatever reason, we change its assessment, or if the ATO assesses that GST is payable, then it will be added to and form part of our fees and expenses at the prevailing GST rate. We reserve the right to recover from you at any time, any GST payable by us on the provision of the Services, goods or any other items supplied to you under this Contract. Where the Contract relates to the conduct of a statutory audit or review, we will be entitled to extra fees for any time it spends investigating circumstances that may fall within section 311, 601HG(4) or 990K of the Corporations Act, including reporting to the Australian Securities and Investments Commission ("ASIC") in accordance with any of those sections.
10.8 If you dispute all or part of an invoice, you (and Crowe Australasia) agree to seek to resolve the dispute under clause 14.5. If you dispute part of an invoice, you agree to pay the undisputed part of the invoice as and when it is or becomes due and payable.
10.9 If we receive any legally enforceable notice or demand issued by any third party (including but not limited to ASIC, the ATO, the Australian Securities Exchange, 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. We will notify you as soon as practicable (unless restricted by law) where we receive any such legally enforceable notice or demand.
12. CONTRACTORS AND THIRD PARTIES
12.1 We reserve the right to employ contractors to provide some or all of the Services, and any reference to our staff includes such contractors. We will remain liable to you for any of the Services that are provided by our contractors.
12.2 From time to time we, and our third party contractors may engage external IT service providers (including in relation to ‘cloud computing’ services) in the performance of services under this engagement. You hereby authorise us and our third party contractors to disclose information relating to your affairs to all such external IT service providers as we or our third party contractors may choose to engage.
12.3 We have outsourcing arrangements with certain Outsourced Service Providers whom we engage from time to time to assist us. Details of the Outsourced Service Providers we engage are available here and may be updated from time to time. Acceptance of our services indicates your acceptance to the use of outsourced services, unless our agreement with you expressly prohibits the use of Outsourced Service Providers.
(a) while we may communicate with one or more members of the consortium, it is the responsibility of each member of the consortium to communicate such information between themselves, and we will have no responsibility or liability for any communication to any member of the consortium that is not communicated to the other members;
(b) instructions received from one member of the consortium will bind each other member; and
(c) where a member terminates its participation in the consortium:
i)such terminating member will not receive access to any deliverables prepared by us as part of the Services under the Contract;
ii) such terminating member will have no obligation to pay our fees or reimburse our expenses for any Services performed by us after the date such member notifies us that it is no longer participating
in the consortium. However, nothing in the foregoing shall affect such terminating member's other rights and obligations under this Contract;
iii) we may continue to provide Services under this Contract to each continuing consortium member; and
iv) we may provide Services in connection with the transaction to which the Services relate to the terminating member of the consortium under a separate Client Services Agreement, and may use any knowledge obtained or deliverable generated by us during the performance of the Services under this Contract up to the date the terminating member notified us it is no longer participating in the consortium in providing such Services to the terminating member. We will keep any information of continuing consortium members generated following this date confidential from the terminating member and vice versa.
Except as disclosed in the Client Services Agreement (or Proposal), we are not aware of any conflict of interest which would affect our ability to provide the Services to you. We will advise you if we become aware of any actual or potential conflicts of interest, and we will work with you to find a suitable solution.
For the purpose of this Contract:
Contract means the agreement between you and Crowe Australasia as set out in these Terms of Business and the Client Services Agreement (or Proposal) together with any changes to the Contract that are agreed in writing between you and Crowe Australasia.
Client Services Agreement means the Client Services Agreement or confirmation letter to which these Terms of Business are referred.
Proposal means any written or verbal proposal for the provision of the Services, other than the Client Services Agreement.
Findex means Findex Group Limited and its affiliated entities, including its related bodies corporate.
Crowe Australasia means Findex (Aust) Pty Ltd, trading as Crowe Australasia, and its affiliated entities, including Crowe audit partnerships.
Crowe Global Firms means any entity (whether or not incorporated) which carries on business under a name which includes all or part of the Crowe name or is otherwise within (or associated or connected with an entity within) or is a correspondent firm of the worldwide network of Crowe Global firms.
The title “Partner” conveys that the person is a senior member within their respective division and is among the group of persons who hold an equity interest (shareholder) in its parent entity, Findex Group Limited. The only professional service offering which is conducted by a partnership is external audit, conducted via the Crowe Australasia external audit division and Unison SMSF Audit. All other professional services offered by Findex Group Limited are conducted by a privately owned organisation and/or its subsidiaries.
Version 9 - 1 August 2022