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Terms of Business
This document and attached engagement letter (the “Engagement Letter”), form the contract (this “Contract”) between the client(s) named in the Engagement Letter (“you”) and All Business Administrations Pty Ltd named in the Engagement Letter (“ABA”, “we” or “us”).
1.0 Performance of the Services
1.1 The Engagement Letter fully sets out the services we will provide to you under this Contract, which you agree are sufficient to meet your needs (the “Services”).
1.2 Unless otherwise stated in the Engagement Letter, the Services will not include an audit opinion, attestation or other form of assurance, as defined or used in the professional standards issued by the Institute of Chartered Accountants in Australia.
1.3 You acknowledge that:
1.3.1 you will ensure that on a timely basis we will be informed of all decisions, and will be provided with all necessary access to personnel, information and documents reasonably required to enable us to provide the Services. Unless otherwise stated in the Engagement Letter, we will not independently verify the accuracy of information and documents and we will not be liable for any loss or damage arising from any inaccuracy or other defect in information or documents provided to us, or any failure to provide on a timely basis such access, information or documents;
1.3.2 we rely on you bringing to our attention as soon as possible any changes in information as originally provided to us which may impact our Services; and
1.3.3 our Directors, employees and stakeholders who are engaged in the provision of the Services will not be deemed to be aware of information known by any of our other Directors, employees or stakeholders who are not engaged in the performance of the Services.
1.4 Unless otherwise stated in the Engagement Letter we accept no responsibility to inform you of changes in the law, regulations or interpretations after we have provided the Services.
1.5 We will use our best efforts to meet any specified timetable. However, unless expressly agreed in writing, dates contained in the Engagement Letter or otherwise communicated are indicative dates, intended for planning and estimating purposes only.
1.6 Notwithstanding clause 1.1, unless otherwise agreed in writing, any further work we may carry out in connection with the Services will be carried out as part of this Contract and subject to its terms.
2.1 We will report to you as set out in the Engagement Letter (the “Deliverables”). Unless otherwise stated in the Engagement Letter, you may only use the Deliverables for your own internal use and benefit and for the purpose for which the Services were provided.
2.2 You acknowledge that you will not rely on draft Deliverables or oral advice issued by us as they may be subject to further work and revisions.
2.3 You will not provide any part of the Deliverables or copies of them to any third party without first obtaining our written consent. Where we give consent, it will be on terms we deem appropriate, including appropriate releases from the third parties. Other than to you, we assume no responsibility of any kind in any circumstances to any party who may seek to rely on our Deliverables or Services.
3.0 Intellectual Property Rights
3.1 Unless otherwise stated in the Engagement Letter, intellectual property rights in all documentation, systems, materials, methodologies and processes (in paper or electronic form and including working papers) brought to the Services by us, or created by us in the course of the Services, shall remain and be vested in us. It is not our practice to release or grant access to such documentation. This clause does not affect your use of the Deliverables in accordance with the terms of this Contract.
3.2 You will not use the ABA name or logo on any website or in any public statement without first obtaining our written consent.
4.0 Fees and Payment
4.1 Fees for the Services will be charged on the basis as set out in the Engagement Letter. Where the Engagement Letter does not do so, our fees will reflect time spent and other factors such as complexity, specialist input required and the urgency and inherent risks of the matter.
4.2 If a fee estimate is given, it is given in good faith but is not contractually binding. We will notify you if it reasonably becomes apparent that the estimate is likely to be materially exceeded.
4.3 All fees are exclusive of expenses, taxes and duties. Unless otherwise stated in the Engagement Letter, we will charge you expenses such as reasonable travel, subsistence, communication and document handling costs (photocopying, printing, fax and courier, etc) and relevant taxes and duties.
4.4 All invoices will be due for payment upon receipt by you. Unless otherwise agreed in writing, the amount billed will be payable regardless of whether or not your project or transaction is completed, or whether our advice is acted upon. We retain the right to suspend the provision of the Services and to charge a commercial rate of interest on accounts that are overdue by more than one month.
5.0 Term and Termination
5.1 If there is no commencement date stated in the Engagement Letter, this Contract will apply from the earlier of the date of your written acceptance of this Contract or the date we begin to perform the Services.
5.2 This Contract may be terminated or suspended by either party by written notice. Where this Contract is terminated or suspended for reasons other than material breach by us, you will pay us for all services provided up to the date of termination or suspension and additional costs that we reasonably incur in connection with the early termination or suspension.
5.3 The provisions of this Contract which expressly or by implication are intended to survive its termination or expiry will survive and continue to bind the parties.
5.4 Termination or suspension of this Contract shall be without prejudice to any accrued rights of the parties.
6.0 Confidentiality and Permitted Disclosures
6.1 Neither you nor we may disclose Confidential Information about or belonging to the other without written consent. For the purposes of this Contract, “Confidential Information” means information or documents, including personal data, which either party receives or produces in connection with the Services which is marked confidential or is manifestly confidential, and includes our working papers, information and methodologies, and any proposal or tender document. However, it does not include any information which:
6.1.1 is or becomes generally available to the public other than as a result of a breach of this clause; or
6.1.2 is received from a third party who owes no obligation of confidence in respect of the information; or
6.1.3 is known by the non-disclosing party prior to the commencement of the Contract or independently developed by the non-disclosing party.
6.2 Notwithstanding the above:
6.2.1 You and ABA will be entitled to disclose the Confidential Information of the other:
(a) where there is a requirement to do so under applicable law, rule or regulation provided that, where permitted and practicable, reasonable notice is first given to the other party; or
(b) to their respective insurers or legal advisors where required in any dispute relating to the Services, provided that the Confidential Information is kept confidential by them.
6.2.2 You agree that ABA may disclose, transfer and process Confidential Information, including to Affiliates or subcontractors which may be located in other territories:
(a) as required for the proper performance of the Services; or
(b) in the conduct of our independence, risk management or quality reviews; or
(c) as reasonably required for legitimate business purposes including client relationship management, account management, internal financial reporting and information technology support.
6.3 If we receive any legally enforceable notice or demand issued by a third party, including any regulatory authority, tax authority, government body or instrumentality, or any court or tribunal, in connection with the Services, you agree to pay our reasonable professional costs and expenses (including legal counsel 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.
6.4 If in the course of providing the Services we know or suspect money laundering, bribery or other serious crime, we may be required to report to a relevant authority. The obligation to report arises regardless of whether the knowledge or suspicion relates to the acts of our clients or a third party. Where we do make such a report we may not be able to notify you or discuss it with you because of restriction imposed by relevant legislation or regulations.
6.5 Subject to this clause 6, in the event that the relevant project or transaction is no longer confidential, we may cite the performance of our services to our clients and prospective clients, or include a reference in our electronic or printed marketing materials or publications, or otherwise as an indication of our experience.
6.6 With respect to personal data:
6.6.1 that you provide to us, you confirm that your provision of such data in accordance with the terms of this Contract will not place us in breach of any applicable data privacy legislation;
6.6.2 that we provide to you, you agree to keep such data confidential, secure and in accordance with any applicable data privacy legislation.
7.1 We will use reasonable skill and care in the provision of the Services.
7.2 We will accept liability for:
7.2.1 death or personal injury caused by our negligence or the negligence of our employees acting in the course of the Services; and
7.2.2 any other liability which by law we cannot exclude, provided that nothing in this clause 7.2 confers on you or any other person greater rights than you or any other person would otherwise have at law.
7.3 Our liability for loss or damages arising in relation to the Services, as a result of breach of contract, tort (including negligence) or otherwise, is limited to an amount equal to three times the fees payable by you for the portion of our Services or work giving rise to the liability.
7.4 In any event, to the extent permitted by law we will not be liable for any indirect, incidental or consequential loss, damages or expenses (including loss of profits or revenue, business interruption, loss of data, or failure to realise anticipated savings or benefits) arising in any way in relation to the Services.
7.5 You agree that if you make any claim against us for loss as a result of a breach of this Contract, and that loss is contributed to by your own actions, then liability for any such loss will be apportioned as is appropriate having regard to the respective responsibility for the loss, and the amount you may recover from us will be reduced by the extent of your contribution to that loss.
7.6 Subject to the aggregate limit of liability specified in this clause 7, any liability we may have in connection with the Services will be limited to that proportion of your actual loss which was directly and solely caused by us or, where the loss was caused by a number of persons, is proportionate to our degree of responsibility taking into account the responsibility of all who contributed to your loss (whether or not they are able to meet any liability they may have to you).
7.7 You acknowledge and agree that in relation to the Services and this Contract, our relationship is solely with you. Therefore, to the extent permitted by law, you agree to reimburse and hold harmless ABA, our Affiliates, partners, employees and
subcontractors against all claims and actions by all third parties, including your related entities, and all associated damages, costs, and expenses, including reasonable professional costs, arising from or relating to the Services. Your obligation to reimburse us will not apply to the extent such claim or action is finally determined to have resulted from fraud or wilful misconduct of ABAt, our Affiliates, partners, employees or subcontractors.
7.8 You agree that you will not bring any claim (whether in contract, tort (including negligence) or otherwise) arising out of or in connection with the Services against any of our partners and employees personally, but this will not limit or exclude any liability we may have for their acts or omissions.
7.9 Where there is more than one Addressee under this Contract, the limit of liability specified in clause 7.3 will have to be allocated between such Addressees. Such allocation will be entirely a matter for such Addressees, who will be under no obligation to inform us of it (except where there is a dispute in relation to the Services). If (for whatever reason) no such allocation is agreed, none of such Addressees will dispute the validity, enforceability or operation of the limit of liability on the grounds that no such allocation was agreed. An “Addressee” means, the original addressee(s) of the Engagement Letter, together with any other persons (a) whom you and we have agreed in writing may have the benefit of the Services and (b) to whom we have assumed a duty of care in respect of the Services under written arrangements with them.
7.10 You agree that any legal proceedings arising from or in connection with the Services must be commenced within two years from the date you became aware or ought reasonably to have become aware of the facts which give rise to our alleged liability and in any event no later than four years after any such cause of action accrued.
8.0 Other Affiliate Firms
8.1 In the course of providing the Services we may, at our discretion, draw on the resources of affiliate firms.
8.2 You agree that you will not bring any claim (whether in contract, tort (including negligence) or otherwise) against any Affiliate in respect of the Services. Any Affiliate who deals with you in connection with the Services does so solely on our behalf, and we will be responsible to you for their dealings with you.
9.0 Subcontractors and other Third Parties
9.1 We reserve the right to use subcontractors, and any reference to our employees includes subcontractor employees. Subject to this Contract, we will be liable to you for any of the Services that are provided by our subcontractors.
9.2 Where you are using any third parties, you will be responsible for their fees, the management of those third parties and the quality of their input and work.
10.1 We retain our files and documents relating to the Services (whether or not created by us, in paper or electronic form, including working papers) as our professional record. It is our practice to destroy such documents seven years after the end of the engagement.
11.1 It is acknowledged by us and you that the electronic transmission of information cannot be guaranteed to be secure or virus or error free and consequentially such information could be intercepted, corrupted, lost, destroyed, arrive late or incomplete or otherwise be adversely affected.
11.2 You and ABA agree to use commercially reasonable procedures to check for the most commonly known viruses before sending information electronically, and each is responsible for protecting their own systems and interests in relation to electronic communications. Neither you nor ABA will have any liability to the other on any basis, whether in contract, tort (including negligence) or otherwise, in respect of any such risks.
12.1 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 anything in this Contract from providing services for other clients, but we will not use Confidential Information for the advantage of such clients. Similarly, we will not use to your advantage Confidential Information received in connection with other engagements.
13.1 Neither party shall directly solicit the services of any employee, agent or representative of the other who is involved in the engagement without the prior written consent of the other during the term of the Contract or for the period of six months after the termination of the Contract. If during the term of the Contract or for the period of six months after the termination of the Contract any employee of either party accepts an offer of employment made by the other party as a result of an introduction in the course of the engagement, that party shall pay to the other a sum equivalent to six months gross salary of the employee concerned including any monetary bonuses payable to that employee during the term of the Contract or for the period of six months after termination of the Contract.
14.1 Entire Agreement. This Contract forms the entire agreement relating to the Services. It replaces and supersedes any previous proposals, correspondence, understanding, agreements or other communications whether written or oral.
14.2 Severability. If any clause of this Contract, or part of any clause, is found by a court of competent jurisdiction or other competent authority to be invalid, unlawful or unenforceable, then the clause or part will be severed from the remainder of this Contract, which will continue to be valid and enforceable to the fullest extent permitted by law.
14.3 Benefit. The provisions of clauses 7.8, 8.1 and 8.2 are expressly for the benefit of our Affiliates, Directors and employees as stated. You agree that each of the Affiliates, Directors and employees has the right to rely on these clauses as if they were parties to this Contract. Each Affiliate, Director or employee which agrees to assist in the provision of the Services does so in reliance on the protections afforded to it by these clauses, the benefit of which we formally accept on their behalf.
14.4 Conflicting Terms. In the event of any conflict with the Engagement Letter, these Terms of Business will take precedence, except to the extent amended in the Engagement Letter by specific reference to the relevant clause of these Terms of Business.
14.5 Assignment. Neither you nor ABA may assign or otherwise deal with their rights or obligations under this Contract without the prior written consent of the other party, except that ABA may without consent assign or novate this Contract to an Affiliate successor of that part of our business to which this Contract relates.
14.6 Warranties. You accept and acknowledge that we have not made any warranties or guarantees of any nature in respect of 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 Services, unless otherwise stated in this Contract.
14.7 Force Majeure. Neither you nor ABA will be liable to the other for any delay or failure to fulfil their obligations under the Contract to the extent that any such delay or failure arises from force majeure or causes beyond their reasonable control.
14.8 Notices. Any written notice to be given under this Contract may be delivered in person, by letter, by electronic mail, or by facsimile transmission to our address appearing in the Engagement Letter clearly marked for the attention of the engagement Director (for you), and the address last notified by you (for us). All such notices shall be deemed to have been received at the times when they would ordinarily have been received.
14.9 Actions Required by Law. Nothing in this Contract shall prevent us from taking any such action as may be permitted or required by law or statute or to comply with the rules or regulations of any relevant professional body.
14.10 Third Party Rights. Notwithstanding Clause 14.3, any person who is not a party to this Contract shall have no right to enforce the Contract or any of its terms. Any rights conferred on third parties by this Contract are subject to the right of you and us, by agreement, to rescind or vary any terms of this Contract without the consent of any third party.
15.0 Governing Law and Resolving Disputes
15.1 This Contract will be governed by and interpreted in accordance with the laws of Australia.
16.2 In the unlikely event that differences concerning the Services or fees should arise that are not resolved by mutual agreement, the parties agree that the Australian Courts of Queensland will have exclusive jurisdiction in connection with the resolution of any dispute or difference arising out of or in connection with this contract.
ABA are diverse and innovative. We rediscovered our vision and implemented a business model capable of taking us to that next level. Our only wish is that we had met them earlier.
Shane Martin – MD, StreetStrider Oz
ABA have taken care of our paperwork for several years now. They know our business, understand the complexities, and work with us regularly to develop efficient processes for managing the day to day operations. Thanks ABA.
Jodie Hurley – Seafood Sensations
Outsourcing our company BAS and Payroll obligations to ABA has freed up time to work on improving and growing our family business. ABA is always accessible and delivers reliably and professionally. ABA is solid in their approach and has since helped us with budgeting and cash flow solutions allowing us to further improve as a company.
Kevin Brant, M&K Venture
ABA have worked with me from the beginning to develop strategy, prepare business plans and implement administrative systems to manage all aspects of my operation. Outsourcing invoicing, payroll, accounts and BAS has given me the flexibility and confidence to expand. ABA facilitated our expansion into the online world which has freed up cashflow and allowed real growth.
DC Fridge Australia – Owner, Laurence Stoppa