Terms and Conditions
As at: 1 January 2018
We aim to do business fairly and in a transparent manner and will do our best to make sure you are happy.
Terms of Business
Russcons Pty Ltd ACN 131 084 225 as trustee for the Russell Family Trust ABN 60 459 967 148 trading as Atho Group (“Atho”) has set out in this document our basic terms and conditions (the “Terms and Conditions”), which together with our Engagement letter (together called “this Agreement”), will apply to all work performed by Atho for you (the “Client”) with respect to this Engagement.
1.1 Each of Atho and the Client confirms that it has obtained all necessary authorisations to enter into and perform this Agreement (“Agreement”).
2. Performance of the Services
2.1 Atho will provide the Services set out in our Engagement Letter and will use all reasonable commercial efforts to provide the Services in an efficient and timely manner, using the necessary skill and expertise to an appropriate professional standard.
2.2 To perform the Services successfully, we require your timely cooperation, including:
(a) providing Atho promptly with all information and documents that we reasonably require to enable us to provide the Services. This also includes access to appropriate members of your staff, records, information, technology, systems and premises;
(b) ensuring that all information you provide to us is true, correct and complete;
(c) arranging access to third parties and third party premises where applicable;
(d) ensuring that appropriate back up, security and virus checking procedures are in place for any computer facilities you provide;
(e) making decisions promptly to facilitate the performance of the Services; and
(f) allowing and authorising access to downloads which are required for all subscription services.
2.3 Unless both parties agree otherwise in writing, dates in any timetable set out in the Engagement Letter or otherwise advised are intended for planning and estimating purposes only and are not contractually binding. The timely completion of the Services requires your cooperation in the provision of information relevant to the Services. Estimates of time for completion of the Services are given on the assumption that we receive this co-operation. We may charge additional fees and expenses which result from delays in providing this cooperation.
2.4 The scope of the Services is limited to the work specified in our Engagement Letter. The services that we provide are not legal services and do not constitute legal advice. Either party may request changes to the Services in writing.
2.5 Our work will be based on the information provided to, or obtained by, us. We rely on you bringing to our attention any changes in the information as originally presented, as it may affect our advice. 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. We will not verify the accuracy and completeness of such documentation or information.
2.6 We have not audited or independently verified any accounting or business records, any plans or boundaries of premises or any other information that you have provided to us.
2.7 We often have to rely on external information or public records to carry out your instructions. 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.
2.8 In the course of providing the Services, we may provide oral comments or draft reports, presentations, letters, schedules and other documents. No reliance shall be placed 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 our final report or advice.
2.9 Changes in the law 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.
2.10 You acknowledge that information made available by you or relating to you and known by Directors or staff at Atho who are not engaged in the performance of the Services shall not be deemed to have been made available to the individuals within Atho who are engaged in the provision of the Services.
2.11 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 against any claim by any such entities, directors, employees or other parties in this respect. You are to seek out and obtain taxation advise from an appropriately qualified and registered taxation Accountant
3 Services Solely for Client Benefit
3.1 The Services will be provided solely for your benefit and use unless provided otherwise in the Engagement Letter. 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. We accept no liability or responsibility to any third party in respect of the Services.
4.1 For the purpose of this Agreement, “Confidential Information” means all non-public information or documents which either party receives or produces in connection with the Services and includes Atho’s working papers, information 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 either party prior to Atho 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 Agreement relates.
4.2 Neither Atho nor the Client may disclose Confidential Information about or belonging to the other without the other’s consent.
4.3 Notwithstanding the above, Atho may disclose Confidential Information to Contractors in relation to the provision of the Services, to assist in quality assurance reviews or for its business purposes and either party may disclose Confidential Information to:
(a) its insurers or legal advisors, provided that the Confidential Information remains confidential;
(b) if required to do so by law or by a regulatory authority including under subpoena; or
(c) if required for the proper performance of the Services.
4.4 Subject to Clause 4.1 and 4.2 we may cite the performance of the Services to clients as an indication of our experience.
5 Privacy of Personal Information
5.2 If the performance of the Services requires a third party to this Agreement to supply personal information to us on your request, it is your obligation to 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 Atho to collect personal information from a third party, you will ensure that such collection of personal information complies with the Privacy Act, and do and be responsible for, all things necessary (including obtaining appropriate consents) for Atho to collect such personal information.
6 Quality Control
6.1 Atho is subject to quality control review programs conducted by industry and professional bodies in Australia. The work we perform for you may be selected by the examiners for review. You acknowledge that, if requested, our files relating to this engagement will be made available. If you object to being included in any of these review processes, you must advise us in writing at the commencement of the engagement and we will use our best endeavours to exclude this engagement from such review. We may participate in other external or internal review processes in relation to quality.
7 Intellectual Property
7.1 Unless otherwise specified in the Engagement Letter, intellectual property rights in the Services, the Website, documentation, systems, materials, methodologies and processes brought to the engagement by Atho or created in the course of the engagement by Atho shall remain the property of Atho.
7.2 Title to, and all Intellectual Property Rights in relation to your data remain your property. You grant Atho a licence to use, copy, transmit, store and backup your information and other data for the purposes of enabling you to access and use the Services and for any other purposes related to provision of services to you. Your access to data is contingent on full payment of your Atho fees.
7.3 You must retain original copies of all data provided to and by Atho. Atho adheres to industry best practice guidelines to prevent data loss, including secure back-ups of all client data but does not make any guarantees that there will be no loss of Data. Atho expressly excludes liability for any loss of client Data.
7.4 Subject to clause 4, Atho will not be restricted by the Agreement from developing and using in the future any techniques, methodologies, ideas, concepts, information and general knowhow.
7.3 You must not use the Atho 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.
7.4 The working papers for this engagement, including electronic documents and files, are our property and constitute Confidential Information.
8 Access conditions
8.1 You must ensure that any and all usernames and passwords required to access the Service are kept secure and confidential. You are responsible for all use of your usernames and passwords, and liable for any loss or damage that we suffer, caused by misuse of your usernames and passwords. We are not liable for any loss or damage that you suffer, caused by misuse of your usernames and passwords. You must immediately notify Atho of any unauthorized use of your passwords or any other breach of security. Atho will then notify the software provider in question who will reset your password and you must take all other actions that Atho and the software provider reasonably deems necessary to maintain or enhance the security of Atho’s/the Software Provider’s computing systems and networks and your access to the Services.
8.2 As a condition of these Terms and Conditions, when accessing and using the Services, you must:
(a) not attempt to undermine the security or integrity of Atho’s or the software provider’s computing systems or networks or, where the Services are hosted by a third party, that third party’s computing systems and networks;
(b) Not use, or misuse, the Services in any way which may impair the functionality of the Services or Website, or other systems used to deliver the Services or impair the ability of any other user to use the Services or Website, including not attempt to or tamper with, hinder or modify the Website, attempt to or knowingly transmit viruses or other disabling features, or damage or interfere with the Website in any way including but not limited to the use of trojan horses, viruses, or piracy or programming routines that may damage or interfere with the Website;
(c) Not attempt to gain unauthorized access to any materials other than those to which you have been given express permission to access or to the computer system on which the Services are hosted;
(d) Not transmit, or input into the Website, any: files that may damage any other person’s computing devices or software, content that may be offensive, or material or data in violation of any law (including data or other material protected by copyright or trade secrets which you do not have the right to use); and
(e) Not attempt to modify, copy, adapt, reproduce, disassemble, decompile or reverse engineer any computer programs used to deliver the Services or to operate the Website except as is strictly necessary to use either of them for normal operation.
(f) Not facilitate or assist another person to do any of the above acts.
9.1 At the end of this engagement we will keep your file and documents for the minimum period stipulated by any relevant legislation. Atho may destroy the original of any document as long as it retains an electronic copy, as stipulated by the relevant legislation. At the end of the minimum period we may destroy your file and documents. All files and documents will be destroyed in a confidential manner. You agree that the above data retention arrangements are acceptable for your purposes. At any time prior to the destruction of the files or documents, you may, by written direction, instruct us to deliver the original or, where provided by relevant legislation, an electronic copy of any documents which belong to you, either to you or to a nominee (in which case we may retain copies of those documents).
9.2 If you become aware that any document relating to this engagement is, or is reasonably likely to be, required as evidence in a legal proceeding, please immediately advise us so that the file can be delivered to you for safe keeping.
9.3 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 our appointment (unless their earlier return is requested), at the end of which they will be returned to you unless separate arrangements have been made. We may retain copies.
9.4 We reserve the right to exercise a lien over any documents and files belonging to you which may be in our possession.
9.5 All original documents obtained from you arising from our engagement will remain your property. However, we reserve the right to make a reasonable number of copies of the original documents for our records.
10 Use of software
10.1 You agree to the Terms & Conditions of software used by Atho that you are required to access in the provision of Services to you. This includes cloud based software accessed by you the Client, as instructed or made available by Atho.
10.2 Atho may also 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 (except where these Tools are a specific deliverable under our Agreement with you) 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.
10.3 You agree that Atho does not accept any liability for the content or performance of any third party website accessed through the Website, and Atho not endorse or approve the contents of any such site. Atho does not give any warranty that this website is free from viruses or anything else which may have a harmful effect on any technology.
11 Electronic Communications
11.1 We will communicate with you electronically, including sending you Commercial Electronic Messages (as that term is defined in the SPAM Act 2003). You consent to us sending Electronic Communications to you.
11.2 Electronically transmitted information cannot be guaranteed to be secure or virus or error free and consequently such information could be intercepted, corrupted, lost, destroyed, arrive late or incomplete or otherwise be adversely affected or unsafe to use. We will not be liable to you in respect of any error, omission or loss of confidentiality arising from or in connection with the electronic communication of information to you.
12 Limitation of Liability
12.1 The liability of Atho for loss or damage arising from or in relation to the Services, whether arising from breach of contract, tort (including negligence) or otherwise, is limited to an amount equal to three times the fees payable by you for the Services (“Liability Cap”).
12.2 However, the Liability Cap does not apply if prohibited by the Corporations Act 2001.
12.3 The parties acknowledge the Australian professional standards legislation (“The Australian Professional Standards Legislation”) may apply in accordance with its terms in relation to the liability of Atho for loss or damage arising from or in relation to the Services.
12.4 To the extent permitted by law, if, under any applicable Australian Professional Standards Legislation, the maximum liability of Atho for loss or damage arising from or in relation to the Services would be:
(a) A higher amount than the Liability Cap, then the Liability Cap will not apply and the maximum liability of Atho will be calculated in accordance with the Australian Professional Standards Legislation.
(b) A lower amount than the Liability Cap, then the Liability Cap will not apply and the maximum liability of Atho will be calculated in accordance with Australian Professional Standards Legislation.
12.5 To the extent permitted by law, Atho excludes all liability for any indirect, incidental or consequential expense, loss, damages or costs, loss of profits or revenue, business interruption, loss of data, or failure to realise anticipated savings or benefits whatsoever incurred by or awarded against the Client (whether or not Atho has been advised of the possibility of such expense, loss, damage or costs) arising in any way out of or in relation to the Services.
12.6 If you make any claim against us for loss arising out of or in connection with the Services or this agreement, liability for your loss and any amount you may recover will be apportioned having regard to the respective responsibility for the loss.
12.7 You are liable for and will indemnify and hold harmless Atho, our respective directors, employees and contractors from and against any liabilities, losses, claims, costs, damages or expenses (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 under this Agreement, including your breach of this Agreement, and will reimburse Atho for all costs and expenses (including legal fees on a solicitor/client basis) incurred by Atho in connection with any such action or claim.
12.8 We have not made any, and to the extent permitted by law we exclude, all warranties, conditions or guarantees of any nature in respect of the Services or the satisfactory conclusion of the Services or with respect to the economic, financial or other results which you may experience as a result of the provision of the Service.
12.9 Where warranties, conditions or guarantees or any other rights are implied in this Agreement or otherwise conferred by the Australian Consumer Law set out in Schedule 2 of the Competition and Consumer Act 2010 or other laws, and it is not lawful or possible to exclude them, then those warranties, conditions or guarantees or other rights will (but only to the extent required by law) apply to this Agreement. To the extent permitted by law, we limit our liability in respect of such warranties, conditions or guarantees to the supply of the Services again or the payment of the cost of having the Services supplied again. You agree not to bring any claim (whether in contract, tort (including negligence) or otherwise) arising out of or in connection with the Services against any of our employees personally. This will not limit or exclude any liability we may have for their acts or omissions. The provision of this clause is expressly for the benefit of our employees, and you agree that each employee is entitled to rely on this clause as if they were parties to this Agreement.
13 Fees and Expenses
13.1 Where you have signed up to the Services, we will not change the amount or frequency of the charging arrangements without your prior approval.
13.2 Accounts are to be paid prior to work being performed, as set out in the Engagement Letter except where otherwise mentioned. Work will not be performed until payment is received. This may result in delays in Atho performing services in a timely manner. Such delays may incur additional charges by Atho or imposed by external regulatory bodies which are to be payable by you. For any Services that includes a monthly recurring subscription charge, Atho will charge your nominated financial institution account on the first day of each subsequent month after the first months Service payment. If the due date is not a business day, Atho will charge your nominated account on the business day before or after that date.
13.3 It is your responsibility to ensure there are sufficient funds available in the nominated account to meet each charge. Further, you should advise us if the nominated account is transferred or closed, your credit card will expire or the account details change. Should you not advise us of any changes that have occurred to your account and we incur fees as a result, we reserve the right to on-charge those fees to your account. We may take action necessary to recover unpaid fees and charges. You are liable to pay costs including debt collection, commission, solicitor fees and any out of pocket expense. Accounts that are not rectified within 4 days may be suspended or terminated in accordance with Clause 15.
13.4 The consideration payable for any supply made or to be made under this Agreement is exclusive of any goods and services tax (“GST”). If GST is payable on any supply made or to be made under this Agreement, you agree that the consideration payable for any such supply shall be increased by an amount equal to the amount of GST payable by Atho in respect of that supply
13.5 All tax invoices for Services will be provided by email and in PDF format.
13.6 We may revise our fee scale from time to time. Rates quoted to you remain in force until the next 30 June. 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 we inform you in advance or as set out in the Engagement Letter, out-of-pocket expenses incurred in connection with the engagement will be charged to you.
13.7 If we receive any notice or demand issued by any third party, including ASIC, the ATO, the 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. We will notify you as soon as practicable (unless restricted by law) where we receive any such notice or demand.
13.8 If at any time you would like to discuss with us how the Services can be improved or if you have a complaint about them, you are invited to telephone any of our directors. This extends to where you consider that a charge has been initiated incorrectly or at an incorrect amount. We will investigate any complaint promptly and do what we can to resolve the difficulties. The preferred channel for any problem resolution is to email [email protected] so it can be properly documented and resolved. If the problem cannot be resolved, the parties agree to enter into mediation, or some other form of alternative dispute resolution, before commencing legal proceedings. In the event of a dispute, or where fees remain unpaid beyond the due date, we reserve the right to suspend provision of the Services until such time as the dispute is resolved or the fees are paid. Suspension of the Services will not affect your obligation to pay us for Services rendered to the date of suspension.
14 Contractors and Third Parties
14.1 We reserve the right to employ Contractors, and any reference to our staff includes Contractor staff. Subject to any contrary provision in our Engagement Letter we will remain liable to you for any of the Services that are provided by our Contractors.
15 Term and Termination
15.1 This Agreement will apply from the commencement date stated in the Engagement Letter, or where no commencement date is specified, from the date of acceptance of the Agreement as specified in our Engagement Letter or the date on which the Services commenced, whichever is earlier.
15.2 Subject to any statutory provisions that apply to the Services, either party may terminate this Agreement at any time by giving at least 30 days written notice. If any subscription fees are not paid, we reserve the right to suspend or terminate your account within 4 days. On termination, Atho is not obligated to perform any of the services listed out in the Agreement. On termination, you shall immediately pay, on request, all fees and expenses due in respect of the Services provided up to the date of termination and, unless the Agreement is terminated for cause, you will pay our reasonable costs and expenses incurred in connection with the termination of the Agreement.
15.3 We may terminate the Terms at any time, without notice, if:
(a) we consider that a request for a Service is inappropriate or for any improper, immoral or unlawful purpose;
(b) if you fail to provide us with clear or timely instructions to enable us to provide the Services;
(c) we consider that our working relationship has broken down including a loss of confidence and trust;
(d) for any other reason outside our control which has the effect of compromising our ability to perform the work required within the required timeframe; or
(e) you fail to pay any Invoice within 30 days of the due date.
This is in our sole and absolute discretion.
15.4 On termination or completion of this Agreement, you must pay all amounts outstanding for Services rendered. We may retain our working papers and documentation or software prepared by us and any other documentation on which our Services are based to enable us to maintain a professional record of our involvement. You may retain your originals and any copies of our reports and letters made in accordance with the provisions of this Agreement.
15.5 Termination of the Agreement shall be without prejudice to any accrued rights of both parties.
15.6 The terms of the Agreement which expressly or by implication are intended to survive its termination or expiry will survive and continue to bind the parties.
16.1 Relationship with other clients
We provide Services to other clients, some of whom may be in competition with you or have interests which conflict with your own. We will not be prevented or restricted by virtue of our relationship with you under this Agreement from providing Services to other clients.
16.2 Our relationship with you
You acknowledge and agree that our relationship with you is that of an independent contractor. Neither of us may claim or make any representation whatsoever to any third party that it is an agent of, or in partnership with, the other party and each party acknowledges that is has no power or authority to bind the other in respect of any matter whatsoever and it will not represent to any person that it has such power or authority.
A failure or delay by a party in exercising a power or right given to it under this Agreement does not operate as waiver of that power or right, nor does a single or partial exercise of a power or right prevent any other or further exercise of it. A waiver by a party of a power or right given to it under this Agreement does not affect any other provision of this Agreement.
16.4 Conflict of interest
You are also required to advise us if you become aware of any conflict of interest or potential conflict of interest. Generally, a conflict of interest is any event which may result in us becoming unable to remain objective in the performance of our services to you. Some examples of events which could give rise to a conflict of interest or potential conflict of interest during this engagement are changes to your business circumstances, events affecting your family (eg. death and/or marriage breakdown) or a legal action commencing against you.
16.5 Governing Law
This Agreement shall be governed by and interpreted in accordance with the laws of the State of Queensland and the Courts of that State shall have exclusive jurisdiction in relation to any claim, dispute or difference concerning the Agreement and any matter arising from it. The parties irrevocably waive any right they may have to object to any action being brought in an inconvenient forum or to claim that those courts do not have jurisdiction.
16.6 Force majeure
Neither of us will be liable to the other for any delay or failure to fulfil their obligations (excluding payment obligations) under this Agreement to the extent that any such delay or failure arises from causes beyond their control, including but not limited to fire, flood, acts of God, acts or regulations of any governmental authority, war, riot, terrorist activities, strikes, lockouts, industrial disputes, including without limitation, incorrect email addresses, internet failures, computer equipment failures, other equipment failures, or non-performance of third parties.
16.7 No assignment
Neither of us may transfer, charge or otherwise seek to deal with our rights or obligations under this Agreement without prior written consent of the other party, except that we may each transfer our respective rights and obligations to any partnership or legal entity authorised to take over all or part of our business.
16.8 Validity of Agreement terms and severance
If any provision of this Agreement is held to be invalid, in whole or in part, such provision shall be deemed not to form part of and will be severed from, the Agreement. The enforceability of the remainder of the Agreement will not be affected.
16.9 Entire agreement
This Agreement forms the entire agreement between us relating to the Services. It replaces and supersedes any previous correspondence, understandings or other communications (written or oral).
17 Our obligation to comply with the law
17.1 We have a duty to act in your best interests. However, the duty to act in your best interests is subject to an overriding obligation to comply with the law even if that may require us to act in a manner that may be contrary to your interests.
17.2 We also have an obligation to ensure that we manage conflicts of interest as they arise. In this regard, we have arrangements in place to ensure that we manage potential or actual conflicts of interest. The effective operation of these arrangements depend, in part, on you complying with your obligation to disclose any potential conflicts of interest to us
For the purpose of this Agreement:
Agreement means the agreement between us as set out in these Terms of Business and our Engagement Letter together with any changes to the Agreement that are agreed in writing between us.
Engagement Letter means the Engagement Letter or confirmation letter to which these Terms of Business are attached.
Services means the services as outlined in the Engagement Letter.