1. Introduction
These terms and conditions of business (“Terms”) apply in respect of the services (“Services”) to be performed by us (“MVA” or “we” or “the firm”) for you. The Services will in general be provided in accordance with the Tax Agent Services Act 2009 (Cth) (“TASA”), the Accounting Professional & Ethical Standards Board Standards (“APES”) and the Tax Practitioners Board’s Code of Professional Conduct (as set out in section 30-10 of the TASA) (“TASA Code of Conduct”).These Terms, together with our Engagement Letter, including any subsequent engagement letter or proposal to which these Terms apply (“Engagement Letter”) (which may include an update schedule advising any changes to material terms contained in the Engagement Letter for a subsequent income year in which we provide services to you - “Update Schedule”), form the Contract between the parties for the Services (“Contract”). The Engagement Letter will clearly outline the scope of the Services, our obligations, your responsibilities, and the basis for our fees in accordance with APES 305 Terms of Engagement. We will ensure it is provided in writing and agreed upon before commencing services as required by APES 305 Terms of Engagement and the TASA Code of Conduct.The individual, company or trust named in the engagement letter as the “Client/Debtor for accounting purposes” together with its associated entities listed in the Engagement Letter or any other entity the Client subsequently instruct us to provide services to following execution of the Contract regardless of whether they are listed in the engagement letter or not (“entities covered by the engagement”), (collectively referred to as “Client parties” or “you” in these Terms), and any guarantors listed in the Engagement Letter and MVA form the “parties' to the Contract.Engaging, or continuing to engage, MVA to provide the Services either orally, in writing or by any other form of conduct which conveys or confirms your request for MVA to provide the Services to you, including but not limited to seeking advice from, providing instructions to, and making payments to MVA in relation to the Services, will confirm your acceptance of this Contract. However, for evidentiary purposes, our strong preference is for the Client Acknowledgement shown at the end of the Engagement Letter to be signed, dated and returned to our office either electronically or by post.
2. Services
MVA will provide the Services described in the Engagement Letter and any ancillary services required by you from time to time including anything requested to be done to give effect to the Services. We will perform the Services with honesty, integrity, professional competence, and due care, in accordance with the TASA Code of Conduct and APES 110 Code of Ethics for Professional Accountants (including Independence Standards).
2.1 Timescale
MVA will endeavour to carry out our obligations in accordance with the timescales set out in the Engagement Letter, where stated. However, unless both parties specifically agree otherwise in writing, the dates contained in the Engagement Letter are indicative dates intended for planning and estimating purposes only and are not contractually binding. Any estimates of time for completion of the Services are given on the assumption MVA receives co-operation, diligence and commitment from you. For the avoidance of doubt, MVA will not be liable for any failure or delay in performing the Services if that failure or delay arises from anything beyond MVA’s reasonable control, including the untimely provision of information by you or the provision of incomplete or patently incorrect information. We will communicate any delays promptly and work with you to mitigate impacts, ensuring compliance with the TASA Code of Conduct.
2.2 Changes to Services
Either of the parties may request changes to the Services as set out in the Engagement Letter. Both parties agree to work together to enable both parties to assess the impact of any requested changes on the cost, timing and any other aspect of the Services. Any amendment to the scope of services must be agreed to in writing by the parties whereby the party receiving the request for amendment should not be required to do anything until the parties have agreed in writing. Any changes to the scope of services or fees will be documented in a revised Engagement Letter or Update Schedule, as required by APES 305 Terms of Engagement.
2.3 MVA Engagement Team
Where specific MVA partners, directors and staff are named in the Engagement Letter, MVA will use reasonable efforts to ensure that these people are available to provide the Services. Where any changes are necessary, MVA will give you reasonable notice of the changes. Staff have been allocated to the engagement based upon MVA’s assessment of the levels of experience, skills and responsibility involved, based on the information provided by you and made known to MVA at the time of Engagement. MVA reserves the right to change the staff working in the event in MVA’s reasonable opinion, it is required. All staff assigned will have the necessary competence and qualifications to perform the Services, inline with the TASA Code of Conduct and APES 110 Code of Ethics for Professional Accountants (including Independence Standards)
2.4 Outsourcing
MVA may use outsourced providers, where such providers will assist in the effective delivery of services in accordance with the Engagement Letter. If you require the work to be carried out at MVA’s premises only, you must notify MVA of these requirements. The fees may be impacted if outsourced providers are not used. Any outsourced providers will be subject to the same confidentiality and professional standards as MVA, in accordance with the TASA Code of Conduct and APES 110 Code of Ethics for Professional Accountants (including Independence Standards). We will obtain your prior consent before engaging outsourced providers for Services involving your confidential information, as required by APES 110 Code of Ethics for Professional.
3. Information
You agree to provide in a timely fashion all information and documents reasonably required to enable MVA to provide the Services. Unless otherwise stated in the Engagement Letter, MVA will not independently verify the accuracy of such information and documents and will not be liable for any loss or damage arising from any inaccuracy or other defect in any information or documents supplied by you. We will exercise professional judgment to identify any information that appears incomplete or incorrect and will seek clarification from you, in line with the TASA Code of Conduct and APES 110 Code of Ethics for Professional Accountants (including Independence Standards).
4. Fees and Payment
4.1 How fees will be calculated
MVA’s fees are calculated on the basis of time spent on the assignment by our partners, directors and staff in accordance with hourly rates current at the time the Services are performed. A schedule of rates for staff allocated to your engagement and/or rates for all MVA employees can be provided upon written request. Unless otherwise stated, any total quantum of fees indicated in the Engagement Letter are indicative estimates only based upon the preliminary information provided by you and our experience with similar and/or your previous engagements. Any fees quoted are not fixed, unless otherwise stated and MVA reserves the right to render fee invoices for an amount based upon time spent, greater than any quantum indicated in the Engagement Letter. The basis for calculating fees, including any assumptions, will be clearly outlined in the Engagement Letter, and any changes to fee estimates will be communicated promptly, as required by APES 305 Terms of Engagement and the TASA Code of Conduct. You hereby agree that any invoice rendered by MVA shall be conclusive evidence of any monies owing to MVA by you, absent any manifest error.
4.2 Performance
MVA’s performance is dependent on you carrying out your responsibilities as set out in the Contract and you providing all information reasonably requested by MVA in a complete and timely manner. Should this not occur, it may lead to an increase in fees depending upon the extent to which MVA has to perform more work or reschedule commitments to deliver the Services. Alterations to the scope of Services or delays beyond the control of MVA may require a reallocation of engagement staff and a renegotiation of fees. Any fee increases due to delays or additional work will be discussed and agreed with you in writing, ensuring transparency and compliance with APES 305 Terms of Engagement.
4.3 Expenses
All charges are exclusive of expenses unless the Engagement Letter states otherwise. You agree to pay MVA’s reasonable travel, subsistence and document handling costs (photocopying, scanning and imaging, printing, fax and courier, etc) incurred in connection with the Services. Any special expense arrangements will be agreed and set out in the Engagement Letter.
4.4 Payment of Invoices
MVA’s tax invoices will be issued on a monthly basis or as set out in the Engagement Letter. If not set out in the Engagement letter, tax invoices shall be rendered in accordance with these Terms. MVA reserves the right to issue tax invoices at more or less frequent intervals. All tax invoices will be due for payment as stipulated on the tax invoice but in no event greater than fourteen (14) days of the date of the tax invoice. All tax invoices will be rendered with relevant client details and a summary of work performed.
MVA is entitled to invoice the “Client / Debtor for accounting purpose” as defined in the Engagement letter as the entity liable for MVA’s fees notwithstanding that Services have been rendered to other Entities and that the person “Client / Debtor for accounting purpose” hereby accepts liability for and on behalf of the other entities regardless of whether they are stated in the Engagement letter or not.
Detailed time records, however, will not be provided on the tax invoice. If you wish to receive a break-down of time entries, this may be requested in writing within fourteen (14) days of the issue of the tax invoice.
Any invoice rendered is conclusive evidence of monies due to MVA and the value of Services rendered to the Client subject to your right to dispute the invoice in good faith, as outlined below.
Except where you are a consumer, as defined in the Competition and Consumer Act 2010 (Cth) (“Consumer”) any dispute in relation to time will not be recognised and acted upon unless notified to us within seven (7) days of receiving details of the time incurred and invoiced. For Consumers, disputes regarding invoices may be raised within a reasonable period, and we will engage in good faith to resolve such disputes, in accordance with the
TASA Code of Conduct and Australian Consumer Law.
MVA retains the right to charge interest on tax invoices which are not paid by the due date. Interest will be calculated daily at a rate of 5% above the penalty interest rate prescribed by the Attorney-General under section 2 of the Penalty Interest Rate Act 1983 from time to time. We will notify you in advance of any intention to charge interest on overdue invoices, ensuring fairness and compliance with the TASA Code of Conduct.
MVA reserves the right to recover all default costs and enforcement expenses on an indemnity basis in the event tax invoices are not paid by the due date and recovery action is necessary, subject to compliance with applicable laws, including Australian Consumer Law for Consumers.
You agree that MVA will hold a general lien over all flies, papers and documents belonging to you (“Documents”) which are in MVA’s possession as security for all outstanding amounts owed by you to MVA including without limitation unpaid tax invoices, interest, default costs and enforcement expenses (“Outstanding Amounts”) until all Outstanding Amounts are paid in full to MVA. Any exercise of a lien will be conducted in accordance with APES 110 Code of Ethics for Professional Accountants (including Independence Standards) and the TASA Code of Conduct, ensuring it is lawful. We will notify you in writing before exercising a lien and provide reasonable opportunity to settle outstanding amounts.
In the event MVA exercises the right to a lien for unpaid invoices, you shall hold MVA harmless for any cost, liability, penalty, or levy that Client may incur as a result of MVA exercising the lien, unless such costs arise due to MVA’s negligence or wilful misconduct, in line with APES 110 Code of Ethics for Professional Accountants (including Independence Standards).
4.5 GST
MVA’s fees and charges referred to in the Contract are exclusive of GST, unless stated otherwise. Any applicable GST will be added to our professional time and shown in your tax invoice and must be paid at the same time that you pay for the GST-exclusive professional time charged in your tax invoice.
5. Term and Termination
5.1 Commencement Date
This Contract will apply from the date that you sign and return the Client Acknowledgment contained at the end of the Engagement Letter.
In the event that we decide, at our discretion, to perform Services prior to our office receiving the Client Acknowledgement back from you, then the Contract will be deemed to have commenced from the date of the Engagement Letter.
In the event that that we do not receive a signed Client Acknowledge, the Contract is taken to have commenced on the earlier date of the date of the Engagement Letter or the date when you provide MVA with any written instructions to commence Services.
5.2 Duration of Contract
The Contract will continue until it is terminated in writing by either party or in accordance with the terms set out below.
5.3 Termination
The Contract may be terminated by either party by providing written notice to the other party if the other party fails to remedy a material breach of these Terms within ten (10) days of receiving written notice of that breach from the other party.
If the Contract is terminated prior to completion of the Service, MVA shall be entitled to be paid for work that has been carried out or for where expenses have been incurred up to the date of termination on a quantum meruit basis. Termination will be conducted in a manner that ensures compliance with the TASA Code of Conduct, and we will provide reasonable assistance to facilitate the transition of Services to another provider, as required by APES 110 Code of Ethics for Professional Accountants (including Independence Standards).
6. Confidentiality
6.1 Subject to clause 6.2, both parties agree to take reasonable steps to maintain (within the respective organisations) the confidentiality of any proprietary or confidential information of the other. The MVA privacy policy is contained on the MVA website (www.mvabennett.com.au) or can be provided to you upon request (“Privacy Policy”). We will maintain confidentiality in accordance with the TASA Code of Conduct and APES 110 Code of Ethics for Professional Accountants (including Independence Standards), ensuring that your confidential information is only disclosed with your consent or as required by law.
If you wish to provide third parties with copies of MVA reports, letters, information or advice, you must first obtain the written permission from MVA to disclose the document(s) or information (please note our copyrights as referred to in clause 17.1 herein). MVA also reserves the right to: -
a. set the terms on which those copies are given or used; or
b. require the third party to enter a direct relationship with MVA or to enter a standard form deed poll of confidentiality.
6.2 Subject to section 275(7) of the Personal Property Securities Act 2009 (Cth) (“PPS Act”), it is hereby agreed that neither party will disclose information of the kind mentioned in section 275(1) of the PPS Act.
7. Exclusions and limitations of liability
7.1 MVA will use the objective standard of reasonable skill and care in the provision of the Services which would
apply to similar professional firms providing accountancy, taxation and financial services in accordance with the TASA Code of Conduct and APES 110 Code of Ethics for Professional Accountants (including Independence Standards).
7.2 Except only for those rights and remedies that you have in respect of the Services under the Competition and Consumer Act 2010 (Cth) (“CCA”) and similar state and territory laws applicable to Consumers which cannot lawfully be excluded, restricted or modified:
a. all conditions, warranties and consumer guarantees, whether statutory or otherwise, are excluded in relation to the Services; and
b. subject to clause 7.3 and otherwise to the greatest extent allowed by law, the liability of MVA in respect of all claims, actions, demands, proceedings, liabilities, damages, amounts, costs and expenses (including legal costs and disbursements on a solicitor and own client basis) arising, paid, suffered or incurred by you (directly or indirectly) as a result of or in connection with a negligent act or omission by MVA, or any breach or non-performance of any express or implied obligations by MVA under these Terms shall be limited, at MVA’s option, to either re-supplying the Services or paying the cost of having the Services re-supplied.
7.3 If you are a Consumer, the liability of MVA will not be limited in the way set out in clause 7.2 if it is not 'fair and reasonable' for MVA to rely on such limitations in accordance with sections 64A (3) and (4) of Schedule 2 of the CCA.
7.4 The parties acknowledge that Australian Professional Standards Legislation (the “PSL”) applies in relation to our occupational liability for loss or damage arising from or in relation to the Services.
7.5 To the extent permitted by law, our maximum liability for loss or damage arising from or in relation to the Services is limited to the amount determined in accordance with the applicable State Professional Standards, being the PSL and the Institute of Chartered Accountants in Australia Professional Standards Scheme. Further information on the operation of the Scheme is available from the Professional Standards Council’s website: https://www.psc.gov.au
7.6 Where a PSL Scheme does not apply, and subject to clause 7.5, you agree that MVA’s liability for any loss or damage suffered by you (whether direct, indirect or consequential) in connection with the Services, including (without limitation) liability for any negligent act or omission or misrepresentation of MVA, shall be limited to an amount equal to five (5) times the reasonable charge for the Services. You agree to release MVA from all claims arising in connection with the Services to the extent that MVA’s liability in respect of such claims would exceed that sum unless such limitation is deemed unfair or unreasonable for Consumers under the CCA, in which case statutory consumer guarantees will apply.
8. Indemnity for Liability to third parties
8.1 You agree to, irrevocably, indemnify MVA against all liabilities, claims, costs, losses, suits or expenses (including legal fees and disbursements) incurred by MVA in respect of any third party claim which is related to, arises out of, or is in any way associated with, this engagement. However, the indemnity does not apply to any costs, charges and expenses in respect of any matters which are finally determined to have resulted solely and directly from MVA’s negligent or wilful acts or omissions, in compliance with the TASA Code of Conduct and APES 110 Code of Ethics for Professional Accountants (including Independence Standards).
8.2 MVA holds the benefit of the indemnity in clause 8.1 on trust for itself and its partners, directors, employees and contractors.
9. Personal Property Securities Act 2009 (Cth) (“PPS Law”)
9.1 For the purposes of this clause 9, “PPS Law” means:
a. the PPS Act;
b. any regulations made at any time under the PPS Act;
c. any provisions of the PPS Act or regulations referred to in (b) above;
d. any amendment to any of the above, made at any time; or
e. any amendment made at any time to any other legislations as a consequence of a PPS Law referred to in (a) to (d) above.
9.2 If at any time we determine that this Contract (or any of the transactions contemplated by or under it) creates a security interest over any of your personal property in our favour, then you must promptly, upon our request, do all things necessary (including, without limitation, completing, signing and providing documents, obtaining consents and supplying information) to:
a. protect any right, title and/or interest of ours in the relevant personal property;
b. ensure that any such security interest in favour of us;
i. is enforceable, perfected (including, where applicable, by control as well as by registration), maintained and otherwise fully effective; and
ii. ranks as a first priority security interest wherever that is possible;
c. enable us to prepare and register a financing statement or a financing change statement; and
d. enable us to exercise any of our rights or perform any of our obligations in connection with any such security interest or under the PPS Law.
10. Security for payments
10.1 If any account(s) become due and payable to MVA under the Contract, you unconditionally and irrevocably agree to charge the payment of all outstanding amounts against all your right, title and interest in all of your personal property, wherever situated, and whether that property or interest exists presently or at any time in the future. You acknowledge that we are entitled to and consent to us registering our security interest on Personal Property Securities Register (PPSR). We have a right to maintain the security interests until such time as all outstanding amounts are paid, subject to compliance with the PPS Act and the TASA Code of Conduct.
10.2 If any account(s) become due and payable to MVA under the Contract, you unconditionally and irrevocably agree to charge the payment of the outstanding amounts against all your right, title and interest in all of your real property, wherever situated, and whether that property exists presently or exists at any time in the future and MVA is entitled to lodge a caveat over any of your real property, to which you hereby consent, against the title of those properties recording its interest and has a right to maintain the caveats until such time as all monies owing are paid, provided such actions are lawful and reasonable under applicable laws, including the TASA Code of Conduct.
11. Access to working papers
11.1 The working paper for this engagement, including electronic documents and files, are the property of MVA and constitute confidential information.
11.2 We will notify you as soon as practicable (unless restricted by law) where we receive a legally mandatory notice or request for access to our working papers from a third party (for example, the ATO). If legal advice is required as to whether any information or documents which may be subject to either legal or accountants’ professional privilege, may be retained and not provided to the third party, then all costs for such advice will be your responsibility, unless the request arises due to MVA’s error or omission, in which case we will bear reasonable costs, in line with APES 110 Code of Ethics for Professional Accountants (including Independence Standards).
11.3 As a major accounting firm, we are subject to the Quality Control Review Program conducted by The Institute of Chartered Accountants in Australia and other regulatory bodies. We are also subject to external audit review in connection with our registration in accordance with the relevant quality standard accreditation. The work we perform for you may be selected by the examiners for review. If you object to being included in the review process, please let us know.
12. Privacy
12.1 We understand the importance of protecting the privacy of your personal information. In handling personal information, we comply with the Privacy Act 1988 (Cth) (Privacy Act), as amended from time to time and with the 13 Australian Privacy Principles.
12.2 We collect, use disclose, store and otherwise handle your personal information in accordance with our Privacy Policy, a copy of which can be found on our website or otherwise made available to you upon request.
12.3 Generally, we collect and use your personal information for the purpose of providing you with the Services and any associated accounting, taxation and financial professional services. A failure to provide your personal information may affect our ability to assist you. Generally, the kinds of personal information we collect include your name, address, telephone number, email address, financial information, and details of superannuation arrangements, where relevant to the provision of the Services to you.
12.4 We may also use your personal information for the purpose of providing marketing or training information to you. This may include newsletters and invitations to seminars or other events. Please let us know if you do not want this information to be sent to you.
12.5 To provide the Services, we may disclose your personal information to our business partners and associates and to third parties engaged to perform administrative or other services. Any disclosure is always on confidential basis. We may also disclose your personal information if required or authorised by law.
12.6 If you would like to access, or seek correction of, the personal information we collect and hold about you, or otherwise enquire or complain about our approach to privacy, please contact our privacy officer at privacy@mvabennett.com.au. Our Privacy Policy contains further information about these processes.
12.7 You acknowledge that you have read and understood our Privacy Policy and you agree to us collecting, storing, using, disclosing and otherwise handling your personal information for the purpose of providing the Services to you and/or for any other purposes set out in the Privacy Policy or otherwise in accordance with law.
12.8 Reporting to Credit Agency
In the event of a default, MVA is entitled to report the default to a credit reporting authority subject to compliance with the Privacy Act 1988 (Cth) and the TASA Code of Conduct.
You consent to your information to be released for the purpose of disclosure to a credit reporting agency in the event of a default provided you are notified in advance and given reasonable opportunity to remedy the default, in line with the TASA Code of Conduct.
You agree to hold MVA harmless for an cost, liability, penalty or levy that you may incur in the event that your default is reported to credit reporting agencies, unless such costs arise due to MVA’s negligence or unlawful conduct, in accordance with APES 110 Code of Ethics for Professional Accountants (including Independence Standards).
13. 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 manage conflicts of interest in accordance with the TASA Code of Conduct and APES 110 Code of Ethics for Professional Accountants (including Independence Standards). Where a potential conflict arises, we will notify you promptly and obtain your consent to continue acting, or implement safeguards to manage the conflict, as required by APES 110 Code of Ethics for Professional Accountants (including Independence Standards).
We will not disclose any of your personal information, or any confidential information that may come into our possession as a result of the Contract, to those other clients. However, our relationship with you, and our provision of the Services to you under the Contract does not and will not prevent or restrict us from providing Services to other clients.
14. Use of software
We may use or develop software, including spreadsheets, databases and other electronic tools (“Tools”) in providing the Services. Ifwe provide these Tools to you, you acknowledge that (except where these Tools are a specific deliverable under the Contract) they are not your property, were developed for our purposes and without consideration of any purpose 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.
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. Any Tools developed specifically for you will be covered under a separate Engagement Letter and we will ensure such Tools comply with the TASA Code of Conduct and APES 110 Code of Ethics for Professional Accountants (including Independence Standards).
15. Jurisdiction and Disputes
15.1 Governing Law & Jurisdiction
All aspects of the Services and the Contract are governed by, and construed in accordance with, the laws of Victoria, Australia in which this Engagement Letter is issued and the parties irrevocably submit to the exclusive jurisdiction of the Courts of Victoria, including Federal Courts.
15.2 Dispute Resolution
If there is a dispute relating to the Services or the Contract, the parties will submit to mediation before having recourse to any other dispute resolution process. Written notice of the dispute must be given to the other party for it to be submitted to mediation before a mediator chosen by the parties or, where the parties cannot agree on the identity or terms of engagement of a mediator, then as selected by the Australian Commercial Disputes Centre (“ACDC”). The parties will use their best endeavours to settle the dispute promptly. The mediation will be conducted in accordance with the ACDC Mediation Guidelines to the extent that they do not conflict with the provision of this clause. We will engage in dispute resolution in good faith, ensuring compliance with the TASA Code of Conduct and APES 110 Code of Ethics for Professional Accountants (including Independence Standards).If the dispute is not resolved within 60 days after notice of the dispute or such further period agreed between the parties, then the mediation will terminate.
15.3 Conclusive Evidence
You hereby agree and acknowledge that in the event any monies under this Contract remain outstanding by you to MVA, any invoice issued or previously issued and sent to you by MVA shall be conclusive evidence of monies owing by you to MVA, subject to your right to dispute the invoice in good faith within a reasonable period, as outlined in clause 4.4.
You further agree and acknowledge that, in the event that MVA initiates any legal proceeding against the you, the following provisions apply, subject to compliance with Australian Consumer Law for Consumers and the TASA Code of Conduct:
a. any certificate by MVA’s employed solicitor as to the amounts of monies for the time being due or owing by you under this Contract including for unpaid tax invoices, interests, default costs and enforcement expenses, shall be final and conclusive of the matters so certified and shall be binding on you for all purposes, save for manifest error;
b. production of this Contract, or any pleading by MVA as to the terms of this Contract, shall not automatically bar you from filing a notice of defence to any claim or proceeding initiated by MVA, but any defence must be filed with a proper basis and in accordance with applicable laws;
c. by entering into this Contract, you do not waive your legal rights to defend any claim, but you acknowledge that MVA may seek default judgment for undisputed monies outstanding, provided such actions are lawful and reasonable under the TASA Code of Conduct;
d. in the event that you file a notice of defence, MVA may firstly engage in good faith to
endeavour to resolve the dispute (although MVA is not bound to), and any application to strike out a defence will be made in accordance with applicable laws and court procedures;
e. MVA will not seek to strike out a notice of defence unless it is frivolous or vexatious, and any such application will be supported by evidence and conducted in accordance with the TASA Code of Conduct and APES 110 Code of Ethics for Professional Accountants (including Independence Standards).
16. Notices
16.1 Notice to be in writing
A notice or other communication connected with this Contract has no legal effect unless it is in writing.
16.2 Service
In addition to any other method of service provided by law, the Notice may be:
a. sent by prepaid post to the address of the addressee set out in the Engagement Letter or subsequently notified;
b. sent by email to the email address of the addressee in the Engagement Letter or subsequently notified; or
c. delivery at the address of the addressee set out in the Engagement Letter or subsequently notified.
16.3 Address for Service
The address for service and email address for service for the parties to the Contract are specified in “Parties to the Engagement” Section in the Engagement Letter, or any other address or email address in the same country subsequently notified by one party to the other party under the Contract.
16.4 Delivery
If the Notice is sent or delivered in a manner provided by clause 16.3 it must be treated as given to and received by the party to which it is addressed:
a. If sent by post, on the 2nd business day (at the address to which it is posted) after posting;
b. if otherwise delivered before 5pm on a business day, upon delivery, and otherwise on the next business day, at the place of delivery;
c. an email is not treated as given or received if it is not received in full and in legible form and the addressee notifies the sender of that fact within 3 hours of the transmission ends or by 12 noon on the business day on which it would otherwise be treated as given and received, whichever is later.
16.5 Valid Notice
A notice sent or delivered in a manner provided by clause 16.3 must be treated as validly given to and received by the party to which it is addressed even if the addressee has become insolvent or is deregistered or is absent from the place at which the Notice is delivered or to which it is sent, or if the Notice is returned unclaimed.
16.6 Notice
Any notice by a party may be given and may be signed by its solicitor.
17. Miscellaneous
17.1 Intellectual Property Rights
All copyrights and other intellectual property rights in all materials and tools (including software and working papers), data, designs, models, methodologies, analysis frameworks, practices, ideas, concepts and techniques brought to the engagement or created in the course of the engagement of MVA shall remain and be irrevocably vested in MVA absolutely.
17.2 Severance
a. If a provision in these Terms is held by a court to be wholly or partially void, illegal or unenforceable, then that provision or part thereof must, to that extent, be treated as deleted and severed from these Terms. This severance will not affect the validity or enforceability of the remainder of the provisions contained in the Contract.
b. Clause 17.2(a) above does not apply and has no effect if severance of the provision of these Terms in accordance with clause 17.2(a) materially affects or alters the nature or effect of the parties' obligations under these Terms such that performance of those obligations is frustrated or impossible to perform.
17.3 Variation
These terms may only be varied by written agreement of the parties and any variation will be communicated clearly and agreed upon in writing, as required by APES 305 Terms of Engagement.
17.4 Non-Solicitation of Personnel
During the Contract, and for six (6) months after it ends, you agree not to solicit for employment or contractual consultancy purposes, whether on a part time, full time or casual basis, or to independently contract the services of, any MVA partner, directors, employee or contractor of MVA who is involved with performing the Services without MVA’s prior written consent. This prohibition applies to both contracts of service and contracts for services.
If:
a. We provide you with our prior written consent;
b. You offer an employment or consultancy contract to one of our partners, directors, employees or contractors; and
c. The partner, director, employee or contractor accepts your offer,
Then you will pay a recruitment fee to us, calculated at 30% of the relevant partner, director, employee or contractor’s gross salary package, unless such a fee is deemed unreasonable or unenforceable under applicable laws, in which case a fair and reasonable fee will be negotiated, in line with the TASA Code of Conduct.
17.5 Contracting relationship
MVA will provide the Services as an independent contractor. Nothing in the Contract shall be construed to create a partnership, joint venture or other relationship between the parties. No party has the right, power or authority to oblige or contractually bind the other in any manner.
17.6 Electronic Communication
We may communicate with you electronically from time to time, including sending you Commercial Electronic Messages (as that term is defined in the SPAM Act 2003 (Cth)). You consent to us sending Commercial Electronic Messages to you and acknowledge that you may opt out at any time if you no longer wish to receive these commercial messages from us. You can make this request by contacting our Privacy Officer whose contact details can be found in our Privacy Policy.
MVA may communicate with you electronically. Electronically transmitted information cannot be guaranteed to be secure or error or virus free and it may be unsafe to use or cause damage to the effectiveness of your software or computer network or systems. MVA will use commercially reasonable procedures to check for the most commonly known viruses before sending Information electronically, but will not be liable to you or any of your associates in respect of any error, virus or omission or loss of confidential information arising from or in connection with the electronic communication of information to you, unless such loss arises due to MVA’s negligence or wilful misconduct, in line with APES 110 Code of Ethics for Professional Accountants (including Independence Standards). You may elect, in writing, not to permit MVA to communicate electronically with you.
18. Health and safety
We are required to comply with the provisions of relevant occupational health and safety legislation (OHS Laws) by taking all practical steps to ensure the health and safety of our employees. However, the OHS Laws place the responsibility for their safety on you when our employees visit your site, including COVID-19 requirements.
19 Contract
19.1 Clauses 19.1(a) and 19.1(b) shall not apply to a Consumer.
a. These terms
i. supersede and exclude all prior and other discussions, representations (contractual or otherwise) and arrangements relating to the supply of the Services including, but not limited to, those relating to the performance of the Services or the results that ought to be expected from using the Services; and
ii. override any quotes, invoices or other documentation
exchanged between the parties whether or not such documents expressly provide that they override these Terms, subject to compliance with Australian Consumer Law for Consumers.
b. Unless MVA otherwise agrees in writing, these Terms are the only terms which shall apply to the Services supplied by MVA. The specific terms of any Engagement Letter and/or Update Schedule Issued to advise of material variations from a previous Engagement Letter for subsequent income years that MVA is engaged to provide Services for, will be deemed to be incorporated into these general Terms. In the event of any inconsistency, the specific terms contained in the Engagement Letter or Update Schedule will override these general Terms but only to the extent of that inconsistency. In all other cases these general Terms and the terms of an Engagement Letter or Update Schedule are to be read and construed as forming one contract at law.
19.2 MVA reserves the right to update these Terms at its discretion and will provide you with notice in relation to updates to these Terms. Unless you object to or opt out of the updates, or terminate the engagement by written notice to MVA within 3 business days of when the relevant updates are notified to you, the updated Terms supersede the prior versions and form part of the Contract from the date it is notified to you, in compliance with APES 305 Terms of Engagement and the TASA Code of Conduct