Rimon Standard Terms and Conditions of Business v2
Last updated 25/01/2023
General Terms of Business
1 Our Services
- 1.1 These general terms of business apply in respect of services (Services) to be performed by us for the client identified in our engagement letter or fee quote (LoE) issued by Rimon Advisory Pty Ltd (ACN 159 610 787) (we, us, our or Rimon) (collectively, the Engagement).
- 1.2 If an LoE is attached, or if these terms are attached or referred to in an LoE, then that LoE shall form part of the Engagement.
- 1.3 These terms and conditions and (as applicable) LoE forms the entire agreement between Rimon and you relating to the Services and replaces and supersedes any previous proposals, correspondence, understandings or other communications (written or oral).
- 1.4 Either Rimon or you may request for a change to the Services, or anything else in the Engagement and/or these terms and conditions. A change will not be effective unless we have both agreed to it in writing.
- 1.5 To the extent applicable, the provision of our services will be conducted in accordance with the professional and ethical standards required by the Tax Practitioner’s Board, including the Tax Agent Services Act 2009 (TASA) and Code of Professional Conduct.
2 Additional Services
- 2.1 If out of scope work is required/requested, we will identify that those Services are out of scope and provide you with an estimate of costs before commencing any work.
- 2.2 Where, as part of the Engagement, the services of an external consultant, expert and/or external service provider are required, an estimated cost, timeframe and involvement will be provided to you for your approval. Acceptance of our Services in conjunction with our Engagement indicates your acceptance of the use of outsourced services as described and that additional fees for those outsourced service may apply.
3 Reports, Oral Advice and Draft Deliverables
- 3.1 Where a report or advice is to be prepared as part of the Services, such report or advice will be provided solely for the individual/entity listed in the Engagement or the relevant deliverable (Recipient) and for the purposes outlined in the Engagement or the relevant deliverable (Purpose). We assume no responsibility for any reliance on such report or advice by any other person other than the named Recipient and for the Purpose and the report or advice shall not be used by any other individual/entity and/or for any other purpose.
- 3.2 Except as stated in our Engagement or the relevant deliverable, as required by law, or without our prior written consent, you may not:
- (a) show or provide a deliverable to any third party or include or refer to a deliverable or our name or logo in a public document; and
- (b) make any public statement about us or the Services.
- 3.3 You may only rely on our final written deliverables. If you wish to rely on something, we have communicated to you prior to our final written deliverable, please let us know so that we can prepare a written deliverable on which you may rely.
4 Acceptance of Engagement
- 4.1 You may accept the Engagement and these terms by:
- (a) signing and returning the LoE to us; or
- (b) continuing to instruct us.
- 4.2 Upon acceptance you agree to pay for our Services on these terms.
5 Engagement Team
- 5.1 Where specific Rimon employees or consultants are named in the Engagement, we will use reasonable efforts to ensure that these people are available to provide the Services. The personnel named in the Engagement have been allocated to your Engagement upon Rimon’s assessment of the levels of experience, skills and responsibility required to perform the Engagement.
6 Commencement and Delivery
- 6.1 Our engagement will commence on the date of your acceptance of the Engagement pursuant to clause 4 or, if applicable, the commencement date outlined in LoE.
- 6.2 We will endeavour to carry out our obligations in accordance with any delivery timeframes set out in the Engagement. However, unless both parties specifically agree otherwise in writing, any dates contained in the Engagement are indicative and are not contractually binding. Any estimates of time for completion of the Services are given on the assumption that we receive co-operation, diligence and commitment from you. For the avoidance of doubt, we will not be liable for any failure or delay in performing the Services if that failure or delay arises from anything beyond our reasonable control including, but not limited to, untimely provision of information, instructions and/or documents or the provision of incomplete or incorrect information, instructions and/or documents by you.
7 Your Obligations
- 7.1 You agree to:
- (a) provide us promptly with all information, instructions and access to staff, senior executives and third parties we reasonably require to perform the Services;
- (b) ensure we are permitted to use any third-party information or intellectual property rights you require us to use to perform the Services;
- (c) ensure that the appropriate back-up, security and virus checking procedures are in place for any computer facilities you provide;
- (d) ensure that information provided to us is accurate, complete and not misleading (we will rely on this information to perform the Service and we will not verify it in any way, except to the extent we have expressly agreed to do so as part of the Services);
- (e) provide reasonable working facilities for us as reasonably required by us;
- (f) alert us to changes to information provided to us; and
- (g) let us know if you expect us to use information from other engagements in connection with this one (otherwise, we are not required to use that information and will not be deemed to know it for the purposes of these terms).
- 7.2 Our performance and delivery of the Services depends on you performing your obligations under these terms. You agree that we are not liable for any default that arises because you do not fulfil your obligations including, but not limited to your delay in providing the information we require to conduct the Services.
8 Audit Assistance
- 8.1 Unless otherwise agreed in our Engagement, we will assist you with any Government audits or investigations that may arise in connection with our Services in accordance with this clause 8.
- 8.2 Unless otherwise specified in our Engagement, our assistance with audits or investigations that relate to the Research and Development Tax Incentive (R&DTI) will be limited to 10 hours per annum and thereafter we may (in our sole discretion) charge a fee for our assistance with further work conducted in addition and in connection with these audits or investigations. This additional fee scope will be agreed in writing between the parties prior to work commencing and will be in addition to any other fees charged by us for the Services.
- 8.3 For the Export Market Development Grant Scheme (EMDG), our fees do not include any fees associated or incurred with appealing any Australian Trade and Investment Commission (AusTrade) determination(s) in connection with an EMDG decision. Should you wish to appeal an AusTrade determination, this will require separate Engagement with you for our assistance with this process.
- 8.4 You acknowledge and agree that you will notify us immediately of an audit or investigation by a Government agency as well as include us in such process as that occurs from time to time and relates to the period of our Engagement.
- 8.5 Our assistance with audits and investigations will only apply in circumstances where we have prepared and submitted the application for an R&DTI and/or EMDG grant for the relevant year being audited or investigated. Where we have not prepared or submitted the relevant grant application, we can assist with this process however, we will charge a separate fee in connection with such assistance.
- 8.6 If an external consultant, expert and/or service provider is required to assist with an audit or investigations, clause 2.2 of these terms shall apply.
9 No Professional Advice
You acknowledge and agree that although some of our staff may be professional service providers (including, but not limited to, lawyers or accountants), our Services provided to you under the Engagement excludes the provision of any legal, accounting, taxation, or other professional advice. If you wish to obtain legal or accounting advice, a separate engagement with one of our affiliated legal or accounting firms can be entered into if such professional advice is sought by you. Liability for any advice given by third parties is expressly excluded by us.
10 Fees and billing arrangements
- 10.1 You agree to pay us fees for our Services on the basis set out in the Engagement, plus any GST.
- 10.2 With respect to an EMDG grant, unless otherwise agreed by us or expressly set out in our LoE, the following fee arrangements will apply:
- (a) you will not be charged unless you enter into a grant funding agreement with AusTrade (Funding Agreement);
- (b) payments will be due by you to us upon confirmation of assessment of each milestone as per your Funding Agreement (Milestone Report) by AusTrade and not upon actual payment by AusTrade;
- (c) you must pay to us the greater of:
- (i) the minimum fee (if applicable) specified in our LoE; and
- (ii) the fee calculated as a percentage of the milestone payment referred to in the relevant Milestone Report as specified in our LoE;
- (d) you will not be required to pay a fee to us if you lodge a “null” Milestone Report or if a Milestone Report is rejected by AusTrade; and
- (e) payments will be due for each Milestone Report for the duration of the Funding Agreement (usually 2 or 3 years).
- 10.3 With respect to an R&DTI, unless otherwise agreed by us or expressly set out in our LoE, the following fee arrangements will apply:
- (a) you agree to pay the minimum fee as specified in our LoE but you will not otherwise be charged unless you become entitled to an R&DTI tax offset;
- (b) payments will be due by you to us upon (as applicable):
- (i) confirmation that you are entitled to a refund and such refund is paid to you or applied to offset an existing tax liability; or
- (ii) submission of the research and development tax incentive schedule;
- (c) you must pay to us the fee calculated as a percentage of the total R&DTI tax offset as specified in our LoE.
- 10.4 You authorise us to deduct any amounts you owe us against any amounts we receive on your behalf from the ATO or any other applicable Government agency. We may receive payments from an applicable Government agency into our nominated bank account on your behalf. Upon receipt of same, we will deduct our fees, as provided for in the Engagement, and remit the balance to your nominated bank account. We will endeavour to remit those monies within seven (7) days of receiving such funds and receiving your nominated bank account details.
- 10.5 Without limiting the above, we may also issue an invoice in relation to a particular deliverable or completion of a stage of the Services from time to time. All tax invoices are due and payable on the date specified in the tax invoice. You consent to us sending our tax invoices to you electronically at your usual email address or mobile phone number as specified by you. Late payment of any fees may result in immediate suspension of Services and shall (in our sole discretion) release us of any future obligation in relation to the Service including future assistance with government audits or investigations.
- 10.6 Our rates may be reviewed from time to time and may change during the course of the Engagement. If a change of rates occurs during the Engagement, you will be given 30 days’ notice in writing of any changes to our rates. In relation to lengthy matters this may impact upon our fee quotes (which may be revised accordingly). Our costs estimates will remain in force until the earlier of twelve (12) months from the date of the fee quote or the adjustment to our rates takes place pursuant to this clause 10.
- 10.7 We undertake that, as much as possible, we will communicate with you as soon as we become aware of any circumstances that might lead to an increase in our fees and charges. The estimate of our fees excludes the cost of disbursements and any additional work undertaken by us at your request. In addition, if the information you provide is incomplete, or there are delays in you providing the necessary information, the fee charged to you may be increased to reflect the additional time and costs incurred by us in completing your Services.
- 10.8 If you require us to produce records, documents or information regarding our engagement with you, or if you require our involvement in connection with a sale event, loan or by Court order, we may charge you our reasonable costs for our involvement in compiling and producing the required records, documents or information.
11 Expense and Compliance Costs
- 11.1 All fees are exclusive of expenses and disbursements. You agree to pay any reasonable expenses and disbursements we incur in connection with the Services, plus GST.
- 11.2 If we are required to provide information regarding you or the Services in order to comply with a statutory obligation, Court order or other compulsory process (including the Australian Securities & Investments Commission, the Australian Taxation Office, AusTrade and the Australian Stock Exchange), you agree to pay the reasonable costs and expenses we incur in doing so. This includes time spent by Rimon personnel or staff and our reasonable costs (including solicitor client expenses) in complying with or challenging any such notice or demand to the extent that our costs and expense are not fully recovered or recoverable from the party issuing the notice or demand.
Where applicable, GST is payable on our fees and expenses and will be clearly shown on our tax invoices. By accepting these terms, you agree to pay us an amount equivalent to the GST imposed on these charges.
13 Interest Charges
Interest at the Cash Rate Target set by the Reserve Bank of Australia plus 2% will be charged on any amounts unpaid after the expiry of one (1) month after a tax invoice is given to you. Our tax invoices will specify the interest rate to be charged.
14 Recovery of Costs
We reserve the right to recover all default costs and enforcement expenses in the event tax invoices are not paid by the due date and recovery action is necessary.
15 Retention of Your Documents
On completion of your work or following termination (by either party) of our Services, we may elect to (but will not be obliged to) retain your documents.
16 Termination by Us
- 16.1 We may cease to act for you or refuse to perform further work, including:
- (a) while any of our tax invoices remain unpaid;
- (b) if you do not comply with any request to pay an amount in respect of disbursements or future costs;
- (c) if you fail to provide us with clear and timely instructions to enable us to advance the Engagement;
- (d) if you refuse to accept our Services;
- (e) if you indicate to us or we form the view that you have lost confidence in us;
- (f) if there are any ethical grounds which we consider require us to cease performing the Services, for example a conflict of interest;
- (g) for any other reason outside our control which has the effect of compromising our ability to perform the Services required within the required timeframe; or
- (h) if in our sole discretion we consider it is no longer appropriate to perform the Services; or
- (i) for just cause.
- 16.2 We will give you fourteen (14) days written notice of termination of our Services. You will be required to pay our costs incurred up to the date of termination. Where we agree to a fixed fee for the Services, and the Services are not completed before termination, you agree to pay us for the Services we have performed on the basis of the time spent at our then current hourly rates, up to the amount of the fixed fee.
- 16.3 Changes to the law or other circumstances beyond our reasonable control may mean that providing the Services to you because of applicable auditor independence rules, Accounting Standards or other legislation. If that happens, we may terminate the Engagement immediately by providing notice in writing.
17 Termination by You
- 17.1 Unless otherwise stated in the Engagement, you may terminate our Services by providing four (4) weeks’ prior written notice. However, if you do so you will be required to pay our costs and expenses incurred up to the date of termination including costs and expenses incurred in connection with the termination of the Engagement.
- 17.2 In the case where the Services and fees are on a success-based or contingency engagement, you may terminate the Engagement prior to the commencement of the performance of the Services by us for the relevant or applicable year or after all relevant fees have been paid to us.
- 17.3 For the avoidance of any doubt, the date of termination shall be the date upon which any period of notice expires and all outstanding fees and expenses have been paid by you.
Without affecting any lien to which we are otherwise entitled at law over funds, papers and other property of yours:
- (a) we shall be entitled to retain by way of lien any funds, property or papers of yours, which are from time to time in our possession or control, until all costs, disbursements, interest and other moneys due to us have been paid; and
- (b) our lien will continue notwithstanding the cessation of the Engagement.
19 Limitation of Liability
- 19.1 Rimon’s liability for loss or damage arising from or in relation to the Services, whether arising from a breach of contract, tort or otherwise (Liability), is limited to the liability cap set in our Engagement under the heading “Liability”. Where no amount is stated, Rimon’s Liability is capped to an amount equal to the fees paid by you to us in respect of the relevant Services.
- 19.2 You acknowledge and agree that we have not made any warranties or guarantees of any nature in respect of the Services or satisfactory conclusion of the Services, including with respect to the economic, financial or other results which you may experience as a result of the provision of the Services.
- 19.3 Our Services come with guarantees that cannot be excluded under the Australian Consumer Law. For major failures with the Service, you are entitled:
- (a) to cancel your Engagement with us; and
- (b) to a refund for the unused portion, or to compensation for its reduced value.
You are also entitled to be compensated for any other reasonably foreseeable loss or damage. If the failure does not amount to a major failure, you are entitled to have problems with the Service rectified in a reasonable time and, if this is not done, to cancel your Engagement and obtain a refund for the unused portion of the Engagement.
- 19.4 Where more than one client is named in the Engagement, the limits on our liability under this clause 19 must be allocated between them.
- 19.5 To the extent permitted by law, we exclude all liability for:
- loss or corruption of data;
- loss of profit, goodwill, business opportunity or anticipated savings or benefits; and/or
- indirect or consequential loss or damage.
- 19.6 You agree not to bring a claim (including negligence) against any of our employees personally in connection with the Services. You agree that each of our employees may rely on this clause 19 as if they were a party to these terms. Each of our employees involved in providing the Services relies on the protections in this clause 19 and we accept the benefit of it on their behalf.
- 19.7 We are not liable for any third-party provider we engage on your behalf.
- 19.8 Should we be found liable to you for a breach of our Engagement, any duty of care we owe to you, our liability is reduced to the extent that your own conduct contributed to any loss or damage suffered.
In consideration of our agreement to supply you with the Services described in the Engagement, you agree to indemnify us, our partners, associates, employees, contractors and any other person who may be sought to be made liable in excess of the limit of liability described above in respect of any activity arising from or connected with the Engagement in respect of any claim of whatever kind, including negligence, that may be made by any person and any costs and expenses that may be incurred by us.
We are acting solely for the persons/entities described in the Engagement and no party may otherwise seek to rely upon our deliverables unless expressly stated in writing. You must not provide any documentation or deliverables in respect of the Services to any third party without our written consent. We accept no responsibility to any third party in respect of the Services.
- 22.1 You acknowledge that we have or will have a security interest in respect of all of your present and after acquired property whilst money remains outstanding for our Services.
- 22.2 We may do anything reasonably necessary, including but not limited to registering our security interest on the personal property securities register established under the Personal Properties Securities Act 2009 (Cth) (PPSA).
- 22.3 You agree that, pursuant to section 115 of the PPSA, the following provisions in the PPSA do not apply in relation to this security interest to the extent, if any, mentioned (words in this provision have the same meaning as in the PPSA):
- (a) section 117 (obligations secured by interests in personal property and land);
- (b) section 118 (enforcing Security Interest in accordance with land law decisions), to the extent that it allows a secured party to give a notice to the grantor;
- (c) section 125 (obligation to dispose of or retain collateral);
- (d) section 129 (disposal by purchase);
- (e) section 130 (notice of disposal), to the extent that it requires the secured party to give a notice to the grantor and other secured parties before disposal;
- (f) paragraph 132(3)(d) (contents of statement of account after disposal);
- (g) subsection 132(4) (statement of account if no disposal);
- (h) section 142 (redemption of collateral); and
- (i) section 143 (reinstatement of security agreement).
- 23.1 We agree not to disclose each other’s confidential information, except for disclosures required by law or confidential disclosures under our respective policies.
- 23.2 We may wish to refer to you and the nature of our Services we have performed for you when marketing our Services. You agree that we may do so, provided we do not disclose your confidential information.
We may collect Personal Information about you, your representatives, your clients and others when we provide Services to you. If we do, you agree to work with us to ensure that we both meet the obligations that we each may have under the Privacy Act 1988 (Cth) (as amended) (Privacy Act). The obligations may include notifying the relevant person to whom the personal information relates who we are and how we propose to use their personal information. Where you have collected personal information, you confirm that you have collected the personal information in accordance with the Privacy Act, that you are entitled to provide this personal information to us and that we may use and disclose the personal information for the purpose/s we provide our Services to you. We will handle personal information in accordance with the Privacy Act. By proceeding with this Engagement, you acknowledge and agree that your personal information may be stored overseas.
25 Sending Material Electronically
We are able to send and receive documents electronically. However, as such transmission is not secure it may be copied, recorded, read or interfered with by third parties while in transit. You release us from any claim you may have as a result of any unauthorised copying, recording, reading or interference with that document, for any delay or non-delivery of any document and for any damage caused to your system or any files.
26 Use of Software and Electronic Tools
- 26.1 We may develop or use electronic tools (e.g. spreadsheets, databases, software) in providing the Services. We are not obliged to share these tools with you, unless they are specified as a deliverable in the Engagement and where ownership has passed to you on payment of any fees due to us. If they are not a specified deliverable, and we do share them with you, you agree that:
- (a) they remain our property;
- (b) we developed them solely for our use;
- (c) you use them at your own risk; and
- (d) you may not provide them to any other third party.
- 26.2 Whilst we implement protective measures, we cannot guarantee the security of your data or that our software will never suffer from any failure or outage. Data breach or loss is an unavoidable risk and you are responsible for maintaining copies of all data and acknowledge and agree that we will not be liable for any disruption or loss you may suffer as a result of such occurrence.
27 Intellectual Property
All copyright 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 shall remain and be irrevocably vested in Rimon’s ownership and control absolutely.
28 Resolving Disputes
If a dispute arises in connection with the Engagement, you agree to meet with us first to attempt to resolve it. if the dispute is not resolved through those negotiations, you agree that we will both attempt to resolve the dispute through mediation before commencing legal proceedings.
Any written notice to be given to a party may be delivered in person, by letter or email to:
- (a) in the case of notices to us, to our address, appearing in our LoE; and
- (b) in the case of notices to you, to the address last notified by you.
Nothing in these terms applies to the extent that it is prohibited under applicable law. If any provision of these terms is illegal or unenforceable in any relevant jurisdiction, it must be enforced to the maximum extent possible, and if unenforceable may be severed for the purposes of that jurisdiction, without affecting its enforceability in any other jurisdiction or the enforceability of any other part of these terms and conditions.
The terms and conditions which expressly or by implication are intended to survive the termination or expiry of the Engagement will survive and continue to bind the parties.
32 Relationship with other clients
During the term of our Engagement with you, we may provide services to other clients, some of whom may be in competition with you or have interests which conflict with your own. You acknowledge and agree that we will not be prevented or restricted by virtue of our relationship with you under this Engagement from providing services to other clients. However, we will ensure that your confidential information remains confidential at all times during the terms of our Engagement.
33 Subcontractors and third parties
- 33.1 We reserve the right to employ subcontractors, and any reference to our staff includes subcontractor staff.
- 33.2 Where you are using third parties, you will be responsible for the management of those third parties and the quality of their input and work.
We may vary these terms and conditions from time to time by giving you at least seven (7) days' notice. You can access a copy of these terms and conditions at any time from our website.
All waivers must be in writing. A single or partial exercise or waiver by a party of a right relating to these terms and conditions does not prevent any other exercise of that right or the exercise of any other right.
Except where the Engagement and these terms expressly states otherwise, it does not create a relationship of employment, trust, agency or partnership between the parties.
37 Force Majeure
No party will be liable for any delay or failure to perform its obligations or any condition pursuant to the Engagement and these terms (other than an obligation to pay monies) if such delay arises due to an unforeseen event beyond the reasonable control of that party which is not otherwise dealt with in these terms. If a delay or failure of a party to perform its obligations or any condition is caused or anticipated due to the relevant unforeseen event beyond the reasonable control of that party, the performance of that party's obligations will be suspended until such time as the party can reasonably comply with its obligations.
Neither party may assign or deal with our rights under the Engagement and the terms without the other’s prior written consent.
39 Governing Law
The laws of New South Wales govern these terms and costs in relation to any matter upon which we are instructed to act.