TERMS OF ENGAGEMENT – PROFESSIONAL ACCOUNTING SERVICES
Thank you for selecting us to conduct your professional accounting needs. We look forward to working with you.
We realise how important it is to understand your needs and we have prepared the attached Terms of Engagement (TE) to clarify the scope of work and other important terms. It is important that you read the TE before you indicate that you agree, which you can do by letting us know that you are happy to proceed.
The scope of work may fall within the CPA Australia Ltd Professional Standards (Accountants) Scheme (Scheme), which facilitates improvements to industry professional standards and protects consumers. Accordingly, we need to notify you of the following:
“Liability limited by a scheme approved under Professional Standards Legislation.“
If you want more information on the Scheme you can go to:
- CPA Australia’s Professional Standards Scheme or visit
- Professional Standards Councils’ website for additional consumer information.
Alternatively, if you want to clarify anything in the TE please call us on 1300 528 145 or email at info@metrixadvisory.com.au.
Yours sincerely,
Metrix Business Advisory Pty Ltd
TERMS OF ENGAGEMENT FOR PUBLIC ACCOUNTING, TAXATION AND ADVISORY SERVICES
Between Practice name (us or we or our) and Client name (you or your) for the Term specified.
1. Purpose
1.1 Metrix Business Advisory Pty Ltd ACN 651 785 858 (we, us and/or our) realises the importance of understanding your accounting, taxation, business and advisory needs. These terms of engagement (Contract) set out the scope of the taxation, accounting, advisory and/or other services (Services) that we may provide to you.
1.2 It is important that you read and understand this Contract alongside our Engagement Letter (the letter preceding this Contract which confirms our engagement agreement with you).
1.3 You are required to accept this Contract by signing electronically (and any other platform we may use from time to time) (Acceptance). By providing your Acceptance, you agree to:
1.3.1 input your payment details; and
1.3.2 accept and be bound by the terms and conditions relating to payment as set out.
1.4 Upon Acceptance you wholly and unconditionally agree to accept the terms set out in this Contract, which means you will be bound by the terms and conditions, including being billed in accordance with it. If you do not agree to this Contract, then do not accept it and do not use our Services.
1.5 If you continue to use our Services and/or engage us even if you have not provided your Acceptance, you will be bound by these terms and conditions.
2. Term
2.1 This Contract will come into effect on the earlier of the date of acceptance or the date that you proceed to engage us Proposal commencement date and will continue for the duration of the Term set out in our Engagement Letter Proposal end date.
2.2 If either party wishes to terminate this Contract, that party can do so by giving at least 30 days’ prior written notice to the other party.
2.3 This Contract will continue to operate beyond the Term on a monthly basis unless terminated by either party with 30 days’ prior written notice to the other party.
2.4 Notwithstanding termination in accordance with this clause 2, this Contract survives termination, and you must pay us immediately for all work done and all expenses incurred up to the date of termination.
3. Objectives and Scope of work
3.1 Any professional accounting services provided by us will comply with APES 110 Code of Ethics for Professional Accountants (including Independence Standards) (the Code).
3.2 We agree to undertake the scope of work set out in our Engagement Letter.
3.3 If you would like to engage us for further work that is not included in the Output (Out of Scope Work), we will bill you separately for such further work, subject to your prior written confirmation. Out of Scope Work includes work set out in our Engagement Letter.
3.4 We will endeavour to provide the Output within the timeframes specified in our Engagement Letter or in the case of Out-of-Scope Work, within a reasonable timeframe considering the nature of the Services required.
4. Our Commitment
4.1 We will perform our Services in accordance with the Code, where applicable, and provide the Output in a manner consistent with our principles of integrity, objectivity, professional competence and due care, confidentiality, professional behaviour, and identifying, avoiding and dealing with conflicts of interests (Fundamental Principles).
4.2 We will document sufficient and appropriate records in respect of the Services we provide you which may be subject to the CPA Best Practice Program under APES 320 Quality Control for Firms.
4.3 Notwithstanding the above, we do not make any warranties and/or representations in respect of:
(a) our Output being free of inadvertent errors; and
(b) any use of the Output by a third party who may have obtained the Output from you (whether directly or indirectly).
4.4 If it is our view (or the view of a Court of a competent jurisdiction) that the Output contains material errors and/or non-compliance with the Code (if applicable), we will take the appropriate steps to rectify any errors in the Output as soon as practicable.
5. Our obligations
5.1 Pursuant to the Code, we are obliged to consider whether any clients, including you, pose any risk to our compliance with the Fundamental Principles. If such risk exists and we cannot reduce those risks to a level that we consider acceptable, we may be obliged to terminate this Contract and/or decline your engagement in accordance with section 320 under the Code.
5.2 You acknowledge and agree that we have a duty to act in your best interests, unless this duty is inconsistent with our duty to act in the public interest.
5.3 We are responsible for maintaining records for a period of at least 5 years unless otherwise required by legislation.
5.4 During the course of the Term, if we identify or suspect that non-compliance with Laws or Regulations (NOCLAR) has occurred or may occur which may have a direct effect on material amounts or disclosures in any financial statements or compliance and may be fundamental to your ability to continue your business or to avoid incurring any material penalties, we reserve the right to:
(a) discuss the matter with the appropriate level of management, those charged with governance or the internal auditor, as appropriate;
(b) communicate the non-compliance or suspected non-compliance with your external auditor, unless prohibited by law or regulation;
(c) disclose the matter to an appropriate authority even when there is no legal or regulatory requirement to do so; and/or
(d) withdraw from the engagement and the professional relationship including by terminating this Contract, where permitted by law or regulation.
5.5 Where we are required to disclose information by a Court order or under relevant law or regulation, we will use our best endeavours to inform you of our intention to disclose any such information to an appropriate authority before disclosing the matter. However, if we have reason to believe that the actual or intended conduct would constitute an imminent breach of any law or regulation that would cause substantial harm to the general public, we may (acting reasonably) immediately disclose the matter to an appropriate authority in order to prevent or mitigate the consequences of such imminent breach of law or regulation.
6. Your Warranties and representations
6.1 By signing our Engagement Letter and this Contract, you warrant and represent to us that as at the date of this Contract:
(a) If in the case of a company, it is a corporation having limited liability, incorporated (or taken to be incorporated) or registered and validly existing under the laws of its jurisdiction of incorporation;
(b) it has full power and capacity to enter into and perform its obligations under this Contract;
(c) all necessary action has been taken to authorise its execution, delivery and performance of this Contract in accordance with its terms;
(d) this Contract constitutes its legal, valid and binding obligations and this Contract is enforceable in accordance with its terms; and
(e) the execution, delivery and performance of this Contract by the does not and will not violate, breach, or result in the contravention of any law, resolution, authorisation or its constitution.
7. Your obligations
7.1 You are responsible for full disclosure of all relevant information we require in order to provide you with our Services.
7.2 You are responsible for the reliability, accuracy and completeness of the particulars and information provided to us.
7.3 You are responsible for your own record keeping relating to your affairs.
7.4 You are responsible for retaining paperwork for a period of at least 5 years unless otherwise required by legislation.
8.Third Party Involvement
8.1 We may in our discretion, from time to time, engage third party professionals, agents and other public practitioners, to obtain the advice and/or Output you need or to assist us with providing our Services to you. These may include remote agents, cloud service providers and outsourced service providers.
8.2 We will seek your consent if third party involvement is likely to exceed the fee estimate we provided you with (if applicable).
8.3 Acceptance of our Services in conjunction with this Contract indicates your acceptance of the use of outsourced services as described in this clause 8.
9. Fees & Billing
9.1 Our professional fees will be calculated on a time spent and cost basis, unless otherwise stated. We will endeavor to provide you a fee estimate for our Services if required. This can be a difficult task, due to the fact that in the provision of our Services, not all variables can be predicted. Any estimated fee is only an estimate, not a quotation and will be subject to change.
9.2 Our hourly rates and fee estimate are set out in our Engagement Letter.
9.3 You agree to adhere to the terms of payment set out.
9.4 We reserve the right to vary our professional fees from time to time in our absolute discretion and will inform you as soon as practicable if this occurs.
9.5 Our invoices may also include disbursements or expenses paid by us. These may include photocopying charges, telephone charges, postage costs, travel fares and expenses, stamp duty and fees paid to third parties such as couriers, registration fees or fees for other professionals. We may charge for you these disbursements (in addition to our professional fees) which may also vary from time to time.
10. Outstanding Costs
If any costs are not paid to us within 30 days of issue of our invoice, without prejudice to any other rights we have, we may:
10.1 charge you interest on any unpaid amounts at the rate of 2% above the Reserve Bank’s Cash Rate (currently 4.35%) per annum;
10.2 choose not to perform any further work for you until all outstanding amounts are paid to us in full; and/or
10.3 retain custody of your papers, documents or files until all accounts are paid to us in full.
11. Ownership of materials
In this clause 11, Intellectual Property Rights mean all patents, trademarks, copyright, designs, service marks, trade names, business names, domain names, symbols, logos, inventions, improvements, any right to have confidential information kept confidential, common law rights, know-how, technical data, formulae, data bases, trade secrets, computer programs, any other form of intellectual property and any applications relating to any of the foregoing, whether presently existing or otherwise, whether registered or not, and whether registrable or not.
11.1 You own all original materials given to us (Your Intellectual Property).
11.2 You retain all rights, title and interest in Your Intellectual Property and have rights to all material produced by us that directly results from our Services, skill and attention to the extent such materials produced by us incorporates Your Intellectual Property.
11.3 You acknowledge and agree that nothing in this Contract constitutes a transfer or assignment of our Intellectual Property Rights.
11.4 We may exercise a lien over your documents in our possession in the event of a dispute, which will be handled in accordance with our dispute resolution process.
11.5 Subject to the payment of all outstanding professional fees and disbursements owing to us, we will provide you with materials produced by us for you in the event you engage the services of another advisor, and the materials are required by your new advisor.
12. Indemnity and limitation of ability
12.1 To the fullest extent permitted by law, you indemnify us against all suits, actions, claims, demands, expenses, losses, damages, costs, proceedings or any other liability brought against us by a third party in respect of any breach of this Contract. For the avoidance of doubt, this indemnity applies to any claims that may arise relating to any use of the Output by a third party.
12.2 The indemnity in clause 12.1 is limited to an amount that is three times the value of our professional fees the subject of this Contract.
12.3 To the fullest extent permitted by law, our liability to you for any reason related to our performance under this Contract shall be limited to the amount paid or payable by you to us for our Services per our invoiced professional fees.
12.4 To the extent permitted by law, you agree that notwithstanding our liability (and that of our directors and employees) including, but not limited to, liability for negligence, we will retain possession of your file and all or any part of your documents and of any moneys held in our account (sufficient to pay our professional fees and/or disbursements) whilst any moneys are owing to us for our professional fees and/or disbursements.
12.5 You acknowledge and agree that:
(a) any property owned by you (either alone or jointly with any other person or entity) is hereby charged with the payment of all professional fees, costs, disbursements, interest and other moneys owing by you to us; and
(b) we will be entitled to lodge a caveat over any real property owned by you (either alone or jointly with any other person or entity) to protect the equitable charge referred to in this clause 12 and you hereby consent to us registering such caveat.
(c) our lien and equitable charge will continue notwithstanding that we cease to provide our Services to you.
12.6 You must pay our invoices whether or not:
(a) you have a right of indemnity or recovery from a third party;
(b) any third party seeks an assessment of any of our accounts; or
(c) you receive any amount from a third party.
12.7 To the fullest extent permitted by law, you agree that to the extent any loss or damage suffered by you is attributable to fault, negligence, or lack of care on your part or on the part of any person for whom you are responsible, we (and our directors and employees) are not liable (in tort, contract or otherwise) for any such loss or damage.
13. Confidentiality and Non-Disclosure
13.1 In this clause 13, Confidential Information means all documentation and information passing from one party (the “disclosing party”) to the other party (the “recipient”) in connection with this Contract including:
(a) documentation prepared by the disclosing party for the recipient;
(b) business, financial and marketing plans and material of the disclosing party;
(c) manuals of any kind;
(d) business projections, market or sales forecasts, pricing and product information, gross profit and cost information, customer information, customer lists and their history data;
(e) business connections including their identity and requirements;
(f) the nature and content of contracts and documents;
(g) trade secrets, ideas, drawings, processes, systems, concepts, protocols, techniques, know-how, source and object codes, Intellectual Property Rights (as defined above), methods of operation, concepts not reduced to material form, designs, plans, models, formulae and methods of operation, whether in writing or otherwise and whether registered or not and whether capable of being registered or not;
(h) the business strategies and financial information, business and scientific plans, records, depictions, computer programs and software, reports and any other written or electronically stored materials of the disclosing party; and
(i) any documentation or information which is marked “confidential”.
13.2 The parties must:
(a) use the Confidential Information solely for the purposes of performing their obligations under this Contract;
(b) at all times maintain the secrecy and confidentiality of the Confidential Information;
(c) prevent any unauthorised disclosure to or use by any other person of the Confidential Information;
(d) not appropriate, copy, memorise, translate, extract, summarise or in any manner reproduce or reverse engineer any of the Confidential Information; and
(e) not directly or indirectly disclose the Confidential Information to any third party at any time without the prior consent in writing of the disclosing party, which may be given or withheld by the disclosing party in its absolute discretion.
13.3 Each party is permitted to disclose the Confidential Information of the other party to its:
(a) employees;
(b) professional advisors; and
(c) in our case, third parties appointed under clause 8 of this Contract,
provided that the disclosure is on a strictly “need to know” basis, and such third parties agree to abide by every obligation placed on the recipient under this Contract with respect to the Confidential Information.
13.4 “Confidential Information” for the purposes of this Contract does not include any information or documents which:
(a) is generally available in the public domain except where such availability is as a result of a disclosure by:
(1) the recipient (or any of its employees or professional advisors); or
(2) any third party who owes the disclosing party an obligation of confidentiality;
(b) was known by the recipient prior to disclosure by the disclosing party (with the onus of proof resting with the recipient); or
(c) is required to be disclosed by the recipient pursuant to any relevant law or Court order or the rules of any relevant public stock exchange provided that:
(d) such disclosure is limited to the extent required by that relevant law, Court order or public stock exchange rules; and
(e) the recipient must inform the disclosing party in writing at least 2 Business Days before it occurs.
13.5 If a party is uncertain as to whether any information or documentation is Confidential Information, they must treat the information or documentation as if it were Confidential Information and as not being in the public domain unless and until the other party agrees in writing that the information or documentation is in the public domain.
13.6 A party must:
(a) immediately notify the other party of any unauthorised disclosure or use of the Confidential Information of which they become aware; and
(b) take all steps which the other party may reasonably require in relation to such unauthorised disclosure or use.
14. Miscellaneous
14.1 GST
To the extent our Services are supplied, or are deemed to be supplied, our professional fees and the cost of most disbursements and/or expenses will be subject to GST. You will be required to pay the additional amount which will be 10% (the rate of the GST) of the fees and expenses otherwise payable.
14.2 Internet Communications
(a) We may communicate with you electronically. Electronically transmitted information cannot be guaranteed to be secure or error free and it can be adversely affected or unsafe to use.
(b) We are not liable to you in respect of any loss, damage, error or omission arising from or in connection with the electronic communication of information to you.
(c) Please let us know if you do not want us to communicate electronically with you.
14.3 Liability scheme
(a) We are governed by the CPA Australia Ltd Professional Standards (Accountants) Scheme (Scheme) which facilitates improvements to industry professional standards and protects consumers, such as yourself.
(b) The liability of our organisation and employees is limited under a Scheme approved under Professional Standards Legislation.
(c) If you require further information on the Scheme, you can go to CPA Australia’s Professional Standards Scheme or visit Professional Standards Councils’ website for additional consumer information.
(d) Alternatively, if you want to clarify anything in this Contract, please call us on 1300 528 145 or email us at info@metrixadvisory.com.au.
14.4 Privacy and Information
(a) We may collect, use and disclose your personal information but only in the necessary conduct of your matter to competently act on your behalf and to forward to you from time to time marketing material and invitations from us.
(b) You have a right to access any of your personal information that we hold about you and should you wish to do so, a written request for access should be made to info@metrixadvisory.com.au.
(c) We will take reasonable steps to notify you if we become aware of an “eligible data breach” (as defined by the applicable legislation) in relation to your personal information.
14.5 Retention of File
(a) On completion of the Output, we and/or our external service provider will retain your file for a period of 5 years after which time your file will be destroyed.
(b) We may charge you a retrieval fee if your file is required during this period.
(c) We are also entitled to retain possession of your file and relevant documents while there is money owing to us for our professional fees, charges and expenses.
14.6 Independent Legal Advice
Prior to agreeing to enter this Contract, you acknowledge that you have been given the opportunity to seek independent legal advice relating to your obligations under this Contract.
14.7 Variation
We may vary our terms of engagement from time to time in our absolute discretion which will apply to this Contract, if we give you reasonable notice of such variation.
14.8 Assignment
(a) We may assign, licence or sub-contract all or any of our rights and obligations under this Contract without your consent.
(b) You shall not assign or transfer any of your rights or obligations under this Contract without our prior written consent. For the purpose of this Contract, a change in ownership or change in control will be deemed to constitute an assignment of your rights and obligations under this Contract.
14.9 Governing Law
This Contract shall be governed by and construed in accordance with the laws of New South Wales.
14.10 Jurisdiction
You hereby irrevocably and unconditionally submit to the exclusive jurisdiction of the Courts of New South Wales and Courts of appeal from there.
14.11 No Waiver
Failure by either party to enforce, at any time or for any period, any one or more of the terms or conditions within this Contract shall not be a waiver of them or of the right at any time subsequently to enforce all terms and conditions within this Contract.
14.12 Inconsistency
In the event of any inconsistency between the terms and conditions contained in this Contract and the Engagement Letter and/or any other terms or conditions included on the terms of this Contract will prevail to the extent of any inconsistency.
14.13 Severability
Any term that is unenforceable will be severed unless the term is unenforceable because it is declared to be an unfair contract term, in which case it shall, at our election, be deemed to be amended to the minimum extent required to prevent it from being an unfair contract term.
14.14 Entire Agreement
This Contract constitutes the entire agreement between you and us in connection with its subject matter and neither party has relied on any representation or promise except as expressly set out in this Contract.