Standard Terms and Conditions of Business
- These Standard Terms and Conditions are to be read with our Engagement Letter to you. They apply to all services that we perform for you that are described in that letter (headed “Scope of Services”) and any additional services MBA may provide from time to time. Together, the letter and these terms are called “this agreement”. If the two documents are inconsistent, the terms in the Engagement Letter will overrule these Standard Terms and Conditions.
- The MBA Partnership Pty Ltd, its affiliates and controlled companies (collectively referred to as “MBA”, “us” or “we”) will use all reasonable commercial efforts to complete the Services within any agreed specified timeframe. We will perform the Services with due care, competence and diligence. However the quality of the Services will depend on input from you.
- You will instruct us fully, and in a timely fashion, giving MBA each of the following (as they are ordinarily reasonably required to perform the Services):
- Information – MBA is entitled to rely on the accuracy of that information without independently verifying it. That is so whether the information is provided by you, your representatives, or your advisers;
- Access – to files, records and information technology systems, to premises and to people (whether management or staff) with relevant skills and experience; and
- Resources – you will provide (and designate to the assignment) all resources that are reasonably necessary to ensure timely approval and sign-off of all accounts and other deliverables.
Where MBA prepares Income Tax Returns and/or prepares or assists in the preparation of Activity Statements
- We will be responsible for preparation of annual Income Tax Returns of individuals and entities required to lodge returns, including reviewing all assessments, instalment notices and correspondence with the Australian Taxation Office in respect of the returns.
- Where requested, we will provide assistance at an appropriate level (having regard to your instructions and status of records) relating to preparation and/or lodgement of Instalment or Business Activity Statements (IAS/BAS). We will also process and assist with notices and correspondence with the Australian Taxation Office relating to these statements and reporting and payment obligations.
- We will highlight any potential exposure to Fringe Benefits Tax where appropriate and provide further assistance upon request.
- When requested, we will advise you or associated entities in relation to income or goods and services tax matters. If a specific matter comes to our attention which we determine has the potential to materially impact on your taxation affairs, we will inform you so that further discussions may be initiated.
- Whilst every care will be taken to provide the highest standard of professional advice you should be aware of the following:
- Under the taxation law, responsibility for the accuracy and completeness of Income Tax Returns and other returns and statements made to the Australian Taxation Office vests with the taxpayer or officers of the taxpayer entity.
- Our taxation advice is necessarily an opinion only based on our knowledge of the particular circumstances. There are limitations attaching to such tax advice and our expression of opinion should not be taken as an assertion of fact. Consequently, such advice and Income Tax Returns are not beyond challenge.
- Our advice will rely on our understanding of specific facts, which will be provided by you or associated entities. The accuracy and completeness of our advice is reliant on the accuracy and completeness of the underlying facts as provided.
Where MBA Compiles Financial Reports
- On the basis of the information you provide, we will compile, in accordance with Chartered Accountants Australia & New Zealand Professional Standards (APS 9 “Statement on Compilation of Financial Reports” or any future replacement standard) a financial report for specified entities.
- Our procedures use accounting expertise to collect, classify and summarise the financial information, which you provide, into a financial report. Our procedures will not include verification or validation procedures. No audit or review will be performed and accordingly no assurance will be expressed.
- We will rely on you for both the completeness and accuracy of the information supplied to us and this includes responsibilities for the maintenance of adequate accounting records, an adequate internal control structure and the selection and application of appropriate accounting policies. You are solely responsible to users of the special purpose financial report compiled by us.
- Our engagement cannot be relied upon to disclose irregularities including fraud, other illegal acts and errors that may exist. However, we will inform you of any such matters which may come to our attention.
- The financial report compiled will not be prepared in accordance with any particular financial reporting framework unless this is specifically required by you or by a particular law or regulation. Any known departures from a specified or mandatory statutory financial reporting framework will be disclosed within the financial report, and when considered necessary, will be mentioned in our compilation report.
- If for any reason, we are unable to complete the compilation of any of your special purpose financial reports, or we consider the information to be misleading, we may refer to such matters within our compilation report or may determine not to issue a report.
- The special purpose financial report will be prepared exclusively for the principals and governing body of each entity or, if requested in writing by you, for other purposes specified to you by us. We will not accept responsibility to any other person for the contents of the financial report. No person should rely on the financial report without having an audit or review conducted.
Where MBA assists you to Prepare Management Financial Reports
- On the basis of information provided by you, we will assist in the preparation of financial reports using your accounting software. Our procedures will use accounting expertise to collect, classify and process the financial information which you provide. Our procedures will not include verification or validation procedures. No audit or review will be performed and no assurance or other opinion will be expressed. Further, we will have no responsibility for the reporting framework upon which the financial report is prepared.
- We will rely on you for completeness and accuracy of information supplied to us and, you will be responsible to any users of a financial report which we assist you to prepare or complete.
- Our engagement cannot be relied upon to disclose irregularities including fraud, other illegal acts and errors that may exist. However, we will inform you of any matters which come to our attention.
- We will have no responsibility for the reporting framework upon which the financial report is prepared.
- Our engagement is solely to assist you prepare/complete special purpose reports to be used for the exclusive benefit of the principals and governing body of the particular business entity for which the report is being prepared. We will not accept responsibility to any other person for the contents of the financial report. No person should rely on the financial report without having an audit or review conducted.
Where MBA performs Audit Services
- We will conduct our audit in accordance with Australian Auditing Standards and the joint Chartered Accountants Australia & New Zealand / CPA Australia Auditor Independence Guidelines. An audit involves performing audit procedures to obtain audit evidence about the amounts and disclosures in the financial report as well as reviewing the internal controls and reporting requirements. The procedures selected depend on the auditor’s judgement, including the assessment of the risks of material misstatement of the financial report, whether due to fraud or error.
- Because of the test nature and other inherent limitations of an audit, together with the inherent limitations of any accounting and internal control system, there is an unavoidable risk that even some material misstatements may remain undiscovered.
- Self-Managed Superannuation Fund Audits
The objective of a Self-Managed Superannuation Fund audit is to form an opinion as to whether the financial report is presented fairly in accordance with the stated accounting policies and whether the Trustee of the Fund has complied with the requirements of the Superannuation Industry (Supervision) Act 1993 (SIS Act).
- Trust Account Audits
The objective of a Trust Account audit report is to form an opinion as to whether the Licensee/ Principal/ Proprietor has correctly accounted for the funds received and complied with the requirements of the relevant state regulatory legislation.
The MBA Partnership Employees
25. All employees of The MBA Partnership remain the employees of The MBA Partnership. If the Client should have any interest in employing a current team member of The MBA Partnership, it must be expressed in the first instance to The MBA Partnership’s Managing Director – Geoff Missen. Such employment will be subject to agreement by the employee, The MBA Partnership’s Managing Director of you, the Client, and will be subject to a one-off fee, payable by the Client to The MBA Partnership, to the equivalent of 35% of the employee’s annual salary. This fee will be applicable should an employee of The MBA Partnership commence employment with the Client at any time within six months of resigning from The MBA Partnership. Except that where an employee is hired at the request of the Client to act on their behalf and covered by a separate contract this clause may not automatically apply.
26. When a particular assignment, task or instruction is to be completed within a specified timeframe, MBA will not be liable for any failure or delay in performing the Services if that failure or delay arises from anything beyond its control – including the untimely performance by you of your obligations. In addition, MBA is entitled to review its fees and, if the delay is substantial, terminate this Agreement.
Fees and Expense
27. In addition to the fees, you agree to pay all reasonable outlays including (but not limited to) where required, travel, meals and accommodation.
28. Where fees are subject to a fixed quote, MBA is entitled to review any fees quoted, if you do not proceed with the specified engagement within 60 days of the provision of a quotation.
Payment and Responsibility
29. You agree to pay all invoices within 14 days of the billing date. Should payment not be made within 14 days, your account will be placed on hold until the outstanding accounts are paid in full. We reserve the right to perform no further work for you until the debt is satisfied in full or you have agreed to enter into an acceptable and timely payment arrangement with MBA.
30. MBA reserves the right to charge a late payment fee on all accounts outstanding or left unpaid in excess of the above 14 days. A late payment fee of either $20 per month (excluding GST), or 10% of the invoice amount will be added to your account and no tax invoice from The MBA Partnership Pty Ltd will be raised. Should your accounts remain outstanding for more than 45 days from billing date and no prior acceptable agreement with MBA has been made, we reserve the right to commence legal action.
31. In the event where MBA takes action to recover the debt, you will be liable for all legal costs and expenses incurred during this time. If judgement is entered, this debt will be placed on your credit rating with Veda Advantage.
32. It is recognised that MBA may provide services to entities over which you have, or represent to have, direct or indirect control, or in which you may have a direct or indirect beneficial interest (‘Associated Entities”). MBA will invoice particular individuals and/or entities for which services are provided as you direct.
33. You agree that you accept ultimate personal responsibility for payment of all invoices, which MBA renders to you and Associated Entities, so that you guarantee payment by those Associated Entities.
34. Should you decide you no longer require our services and we receive an Ethical Clearance Letter from your new accountant, and we have stored documents required by your new accountant off-site, we reserve the right to charge you a Document Retrieval Fee of $50.00 (excluding GST) per box retrieved. No documents will be released to your new accountant until this fee has been satisfied in full.
35. MBA reserves the right to withhold lodgement of all statutory returns with any government or regulated body for yourself and all related parties until your account with MBA is settled in full. MBA will not accept any responsibility for late lodgement penalties or other penalties applied should your statutory returns be lodged late due to your failure to pay your account with MBA.
Commercial Credit (where applicable
36. You agree that MBA may seek consumer credit information.
If MBA considers it relevant to assessing your application for commercial credit, you agree to MBA obtaining from a credit reporting agency a credit report containing personal credit information about you in relation to commercial credit provided by The MBA Partnership Pty Ltd.
Exchanging information with other credit providers.
You agree to MBA obtaining personal information about you from other credit providers, whose names you may have provided for MBA or that may be named in a credit report, for the purpose of assessing your application for commercial credit made to MBA.
Consumer Credit (where applicable
37. Important Notice To Applicant(s) For Credit
Notice of disclosure of your credit information to a credit-reporting agency.
MBA may give information about you to a credit reporting agency, for the following purposes:
- To obtain a consumer credit report about you, and/or
- To allow the credit reporting agency to create or maintain a credit
information file containing information about you.
The information is limited to:
- Identity particulars – your name, sex, address (and the previous two addresses), date of birth, name of employer, and drivers licence number.
- Your application for credit or commercial credit – the fact that you have applied for credit and the amount.
- The fact that MBA is a current credit provider to you.
- Loan repayments which are overdue by more than 60 days, and for which debt collection action has started.
- Advice that your loan repayments are no longer overdue in respect of any default that has been listed.
- Information that, in the opinion of MBA, you have committed a serious credit infringement (that is, fraudulently or shown an intention not to comply with your credit obligations).
- That credit provided to you by MBA has been paid or otherwise discharged.
This information may be given before, during or after the provision of credit to you.
MBA’s website at www.mbapartnership.com.au includes information in a Statement of Notifiable Matters about credit reporting, including details of the credit reporting bodies to which MBA is likely to disclose your credit information. The Statement of Notifiable Matters also contains information about how you may obtain MBA’s Credit Reporting Policy (which is also displayed on the website) and on your rights to seek access to and correction of your credit-related personal information and to complain about MBA’s handing of your credit-related personal information. You may request a copy of the Statement of Notifiable Matters.
STATEMENT BY APPLICANT(S) FOR CREDIT
Please read the following carefully before signing this Engagement Letter, since by signing you agree to the following:
Giving information to a Credit Reporting Agency
MBA has informed me that it may give certain personal information about me/us to a credit-reporting agency.
Access to Commercial Credit Information
I/we agree that MBA may obtain information about me/us from a business, which provides information about the commercial credit worthiness of persons for the purpose of assessing my/our application for consumer credit.
Access to Consumer Credit Information
I/we agree that MBA may obtain a consumer credit report containing information about me from a credit-reporting agency for the purpose of assessing my/our application for commercial credit.
Exchange of Credit Worthiness Information
I/we agree that MBA may exchange information with those credit providers named in this application or named in a consumer credit report issued by a credit reporting agency for the following purposes:
- To assess an application by me/us for credit
- To exchange information with other credit providers as to the status of this loan where I am in default with other credit providers
- To assess my/our credit worthiness.
I/we understand that the information exchanged can include anything about my/our credit worthiness, credit standing, credit history or credit capacity that credit providers are allowed to exchange under the Privacy Act.
Agreement to a credit provider being given a consumer credit report by a credit reporting agency to assess a guarantor.
I/we agree that MBA may obtain from a credit-report containing information about me/us for the purpose of assessing whether to accept me/us as a guarantor for credit applied for. I/we agree that this agreement commences from the date of this agreement and continues until the credit covered by the borrower(s) application ceases.
Agreement to a credit provider disclosing a report including a consumer credit report to potential or existing guarantor.
I/we agree that MBA may give to a person who is currently a guarantor, or whom I/we indicated is considering becoming a guarantor, information contained in a credit report about me/us for the purpose of the Prospective Guarantor deciding whether to act as a guarantor, or to keep the Existing Guarantor informed about the guarantee. I/we understand that the information disclosed can include anything about my/our credit worthiness, credit standing, credit history or credit capacity that credit providers are allowed to disclose under the Privacy Act.
38. MBA is bound by the Australian Privacy Principles (APPs). Accordingly, we take every reasonable step to ensure your personal information is managed and stored within the guidelines provided in the APPs. For more information on the Australian Privacy Principles, visit www.oaic.gov.au.
39. Both MBA and you agree to take reasonable steps to maintain (within our respective organisations) the confidentiality of any proprietary or confidential information of the other. If you wish to provide a third party with copies of MBA reports, (excluding finance reports) letters, information or advice, then MBA reserves the right to:
- Set the terms on which those copies are given or used; or
- Require the third party to enter into a direct relationship with us.
Intellectual property rights
40. MBA retains all copyright (and other intellectual property rights) in everything it develops (or is involved in developing) either before or during the course of an Engagement – including systems, methodologies, software and know-how. We also retain all copyright (and other intellectual property rights) in all reports, written advice or other deliverables we provide to you – although you will have the full right to use these materials within your own organisation. If you wish to use these materials outside your own organisation, you must first obtain our written permission.
Indemnity for liability to third parties
41. You agree to indemnify MBA against all liabilities, claims, costs and expenses collectively referred to as “LOSS” (including any GST payable by MBA on amounts paid by you under this indemnity), incurred by MBA in respect of any claim by a third party which is related to, arises out of, or is in any way associated with our Engagement. However, the indemnity does not apply to any Loss in respect of any matters which are finally determined to have resulted from MBA’s negligent, wrongful or wilful acts or omissions.
From time to time, we may utilise offshore staff to assist with various administration and basic level accounting work in order to reduce costs to you. Your data remains confidentially and securely stored on our Australian-based servers at all times, as our offshore team has no ability to download, print or store any information. At all times we take full responsibility for overseeing the quality of work completed by the offshore staff.
We may also share your data with other MBA related entities.
Contractual Limitation of Liability
42. Nothing in these Terms and Conditions excludes restricts or modifies the application of any statute, including the Trade Practices Act, where to do so would contravene that statute or cause the term to be void.
43. If any representations, conditions or warranties are considered to be of importance to you, you should ask that they be incorporated in the Engagement Letter before it is accepted by you. These Terms and Conditions, and the Engagement Letter, constitute the whole of the Agreement covering our relationship, and MBA will not be liable for any statements, representations, or warranties (written or oral) which are not expressly contained in these documents. All warranties which may otherwise be implied by statute, common law, or custom are (subject to clause 36) expressly excluded.
44. You agree that in respect of any liability sustained by you in relation to this Agreement:
- any loss or damage suffered by you (whether direct indirect or consequential), including (without limitation) liability for any negligent act, omission or misrepresentation by MBA, shall be limited to the amount of professional fees paid to us in respect of the Services to which the claim relates. You agree to release MBA from all claims to the extent that MBA’s liability exceeds this amount;
- to the extent that any loss or damage suffered by you is due to an act, omission, negligence, fault or lack of care on your part or on the part of any person for whom you are responsible, MBA is not liable for the loss or damage;
- If MBA is liable for a 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 supply of the Services again or the payment of the cost of having the Services supplied again, whichever we, in our absolute discretion, elect; and
- MBA will not be liable for any losses, claims, expenses, actions, demands, damages, liabilities or any other proceedings arising out of reliance on any information which is false, misleading or incomplete.
Governing law and jurisdiction
45. All aspects of the Services and the Engagement Letter are governed by, and construed in accordance with, the laws of the state of Queensland. Both you and MBA irrevocably submit to the exclusive jurisdiction of the Courts of the state of Queensland.
46. If any provision or part provision of this agreement is found to be illegal, unenforceable or otherwise invalid then, despite that invalidity:
- This agreement will remain in full force and effect; and
- That provision will be deemed to be deleted and substituted by a valid one which in its economic effect comes so close to the invalid provision that it can be reasonably assumed that the parties would have contracted also with this new provision.
Variation and survival
47. This agreement may be varied by written agreement of the parties. Provisions of this agreement that are capable of having effect will survive its termination.
48. We will provide the Services as an independent contractor. Nothing shall be construed to create a partnership, joint venture or other relationship, including the creation of a fiduciary relationship or duty. No party has the right, power or authority to oblige or bind the other in any manner.
Parties to Agreement
49. A reference to “you” in this agreement includes any entity or commercial activity in which you have or have represented to have direct or indirect control or a direct or indirect beneficial interest.
Schedule of Hourly Rates (where applicable)
- The above figures are inclusive of GST
- Staff may be engaged under a classification that we consider appropriate for their experience
- Time is recorded and charged in six-minute intervals
- Rates are subject to increase from time to time