These Terms and Conditions, together with the Engagement Letter, apply to all work performed by
MGI Parkinson for the Client with respect to the Engagement.
1. Definitions
Capitalised terms used in these Terms and Conditions are defined in clause 22. 2.
2. Authorisations
Each of MGI Parkinson and the Client confirms that it has obtained all necessary authorisations to
enter into and perform the Agreement.
3. Performance of the Services
3.1. The scope of the Services is limited to the work specified in the Engagement Letter.
3.2. MGI Parkinson may have to rely on external information or public records to carry out the
Services. MGI Parkinson has no liability for any loss or damage caused by errors or omissions in
external information or public records.
3.3. Changes in the law may take place before advice provided by MGI Parkinson is acted upon or
may be retrospective in effect. Unless specifically stated in the Engagement Letter, MGI Parkinson
has no responsibility for informing the Client of changes in the law or interpretations affecting advice
previously given by MGI Parkinson.
3.4. Some of the matters on which MGI Parkinson may be asked to advise the Client may have
implications (including in relation to tax) for persons or entities other than the Client. Unless advising
on such implications is expressly included in the Services, MGI Parkinson has no liability to the Client
or any person or entity in respect of those implications, and the Client indemnifies MGI Parkinson
against any claim by any such persons or entities in this regard.
3.5. The Services are not legal Services and do not constitute legal advice. We recommend you seek
legal advice.
3.6. The Services are not financial advice or financial produce advice. MGI Parkinson does not
provide financial advice and recommend that you contact a suitably qualified and licenced financial
planner if you require financial advice.
3.7. MGI Parkinson will not audit or independently verify the accounting records or information that
you have provided in connection with the Services. MGI Parkinson’s work will be based on
documents and information provided to it, or obtained by it in connection with the Services. MGI
Parkinson will not verify the accuracy and completeness of such documentation or information.
4. Client’s disclosure and record keeping obligations
4.1. The Client is required by law to keep full and accurate records relating to the Client’s tax affairs.
The preparation of your income tax return does not constitute a prudential tax audit and cannot be
relied upon as such. The onus is on you, the taxpayer, to self-assess and there are substantial
penalties for incorrect returns. You should carefully review the income tax return to ensure that
items shown are accurately stated so that amendments can be made for any incorrect matters.
4.2. It is the Client’s obligation to provide MGI Parkinson with all information that the Client
reasonably expects will be necessary to allow MGI Parkinson to perform the Services within a timely
manner or as requested. This includes providing accurate and complete responses to questions
asked of the Client by MGI Parkinson within a reasonable timeframe. Inaccurate, incomplete or late
information could have a material effect on the Services and/or MGI Parkinson’s conclusions and
may result in additional fees. MGI Parkinson will not verify the underlying accuracy or completeness
of information provide to MGI Parkinson by or on behalf of the Client.
4.3. The Client is also required to advise MGI Parkinson on a timely basis if there are any changes to
the Client’s circumstances that may be relevant to the performance of the Services. Specifically, if
any subsequent event results in the information the Client provided to MGI Parkinson being
inaccurate, incomplete or misleading, then the Client is obliged to advise MGI Parkinson as soon as
possible. MGI Parkinson has no liability for MGI Parkinson’s advice being inaccurate, incomplete or
misleading as a result of it being based on inaccurate, incomplete or misleading information being
provided to MGI Parkinson or information not being provided to MGI Parkinson on a timely basis.
4.4. The Client agrees that the performance of the Services is dependent on the performance of the
Client’s obligations relating to disclosure and record keeping.
4.5. Australian taxation legislation contains specific provisions that may provide the Client with “safe
harbours” from administrative penalties for incorrect or late lodgement of returns if, amongst other
things, the Client gives MGI Parkinson all relevant taxation information in a timely manner.
Accordingly, it is to the Client’s advantage that all relevant information is disclosed to MGI Parkinson
as any failure by the Client to provide this information may affect the Client’s ability to rely on the
“safe harbour” provisions and will be taken into account in determining the extent to which MGI
Parkinson has discharged its obligations to the Client
4.6. The Client is also required to advise MGI Parkinson if the Client become aware of any conflict of
interest or potential conflict of interest. Generally, a conflict of interest is any event which may
result in MGI Parkinson becoming unable to remain objective in the performance of its services to
the Client. Some examples of events which could give rise to a conflict of interest or potential
conflict of interest during this engagement are changes to the Client’s business circumstances,
events affecting the Client’s family (for example, death and/or marriage breakdown) or a legal action
commencing against the Client.
5. Client’s rights and obligations under the taxation laws
5.1. The Client has certain rights under taxation laws, including the right to seek a private ruling from
the ATO or to appeal or object against a decision made by the Commissioner. As relevant, MGI
Parkinson will provide further information to the Client concerning the Client’s rights under
Australian taxation laws during the conduct of the Engagement.
5.2. The Client also has certain obligations under Australian taxation laws, such as the obligation to
keep proper records and the obligation to lodge returns by the due date.
6. MGI Parkinson’s obligation to comply with the law
6.1. MGI Parkinson has a duty to act in the Client’s best interests. However, the duty to act in the
Client’s best interests is subject to an overriding obligation to comply with the law even if that may
require MGI Parkinson to act in a manner that may be contrary to the Client’s interests. For example,
MGI Parkinson could not lodge an income tax return for the Client that MGI Parkinson knew to be
false in a material respect.
6.2. MGI Parkinson also has an obligation to ensure that MGI Parkinson manages conflicts of interest
as they arise. In this regard, MGI Parkinson has arrangements in place to ensure that MGI Parkinson
manages potential or actual conflicts of interest. The effective operation of these arrangements
depends, in part, on the Client complying with its obligation to disclose any potential conflicts of
interest to MGI Parkinson (see clause 4.6 above).
6.3. The Services will be based on the law, including Australian taxation law, in force, and the
applicable practices of the ATO, at the date of the provision of the Services. It is the Client’s
responsibility to seek updated advice if it intends to rely on MGI Parkinson’s advice at a later stage.
MGI Parkinson notes that Australian taxation laws are often subject to frequent change and MGI
Parkinson’s advice will not be updated unless specifically requested by the Client at the time of the
change in law or announced change in law.
7. Services Solely for Client Benefit
Unless expressly provided otherwise in the Engagement Letter, the Services are provided solely for
the Client’s benefit and use. Except as required by law, the Client must not provide any
documentation or deliverables in respect of the Services to any third party (including, without
limitation, the filing of information containing or referring to any of MGI Parkinson’s reports with
regulators or the inclusion of MGI Parkinson’s reports in any public document) without MGI
Parkinson’s prior written consent. MGI Parkinson accepts no liability or responsibility to any third
party in respect of the Services.
8. Confidentiality
8.1. Subject to clauses 8.2 and 8.3, neither MGI Parkinson nor the Client may disclose Confidential
Information about or belonging to the other without the other’s consent.
8.2. MGI Parkinson may disclose Confidential Information to its officers, employees and
subcontractors in relation to the provision of the Services, to assist in quality assurance reviews or
for business purposes and either party may disclose Confidential Information to:
(a) its insurers or professional advisors, provided that the Confidential Information remains
confidential;
(b) if required to do so by law or by a regulatory authority, including under subpoena; or
(c) if required for the proper performance of the Services.
8.3. MGI Parkinson may cite the performance of the Services to third parties to promote the
business carried on by MGI Parkinson.
9. Privacy of Personal Information
9.1. In performing the Services, MGI Parkinson agrees to comply with all applicable requirements of
the Privacy Act and any other applicable legislation or privacy guidelines.
9.2. If the performance of the Services requires a third party to the Agreement to supply personal
information to MGI Parkinson on the Client’s request, the Client must ensure that the third party has
satisfied the requirements of the Privacy Act and the disclosure of such personal information to MGI
Parkinson is lawful.
As part of the engagement MGI Parkinson authorise any principal, partner, employee, subcontractor
or associate of MGI Parkinson to be in possession of the business, taxation or other records. The
engagement authorises MGI Parkinson to deal with matters, provide information to and receive
information from the Australian Taxation Office, Centrelink, Family Assistance Office, Child Support
Agency, or any Court or Government department, agency or body, or any bank or financial
institution, or any finance broker or financial planner. This authority extends to MGI Parkinson being
authorised to make any requests for information or reports under any Freedom of Information Act
or Privacy Act (in any jurisdiction). There is no restriction to the type, source, purpose, cause or
matters of information sought and this authority shall include any privacy legislation, secrecy
provisions or other laws that may be in place presently or in future. MGI Parkinson are authorised to
provide a tax file number to any predecessor accountant on the sale transfer or restructure of MGI
Parkinson’s business. MGI Parkinson may also request a tax file number to be provided to any party
whom MGI Parkinson provides our personal information.
9.3. If the Services require MGI Parkinson to collect personal information from a third party, the
Client must ensure that such collection of personal information complies with the Privacy Act, and
do and be responsible for all things necessary (including obtaining appropriate consents) for MGI
Parkinson to collect such personal information.
10. Quality Control
MGI Parkinson may be subject to quality control review programs conducted by industry and
professional bodies in Australia. The work MGI Parkinson performs for the Client may be selected by
the examiners for review. The Client acknowledges that, if requested, MGI Parkinson’s files relating
to the Engagement will be made available to such examiners. If the Client objects to being included
in any of these review processes, the Client must advise MGI Parkinson in writing at the
commencement of the Engagement and MGI Parkinson will use its best endeavours to exclude the
Engagement from such review.
11. Intellectual Property
11.1. Unless otherwise specified in the Engagement Letter, Intellectual Property Rights in the
Services shall remain the property of MGI Parkinson.
11.2. Title to all Intellectual Property Rights in relation to the Client’s data remains the Client’s
property. The Client grants MGI Parkinson a licence to use, copy, transmit, store and backup the
Client’s information and other data for the purposes of enabling the Client to access and use the
Services and for any other purposes related to provision of services to the Client. The Client’s access
to data is contingent on full payment of the Fees.
11.3. The Client must retain original copies of all data provided to and by MGI Parkinson. MGI
Parkinson does not give a warranty or undertaking that there will be no loss of data. MGI Parkinson
has no liability for any loss of client data.
11.4. Subject to clause 8, MGI Parkinson will not be restricted by the Agreement from developing
and using in the future any techniques, methodologies, ideas, concepts, information and general
knowhow developed in the course of providing the Services.
11.5. The Client must not use MGI Parkinson’s logo on any websites or in any public statement or
document, (including any filing with a regulator) without obtaining MGI Parkinson’s prior written
consent.
11.6. The working papers for the Engagement, including electronic documents and files, are MGI
Parkinson’s property and constitute Confidential Information of MGI Parkinson.
12. Documents
12.1. At the end of the Engagement MGI Parkinson will keep the Client’s file and documents for the
minimum period stipulated by any relevant legislation.
12.2. If the Client becomes aware that any document relating to the Engagement is, or is reasonably
likely to be, required as evidence in a legal proceeding, the Client must immediately advise MGI
Parkinson.
12.3. If MGI Parkinson is provided with custody of any documents by the Client or on the Client’s
behalf, including share registers or constitution documents, those documents will be retained during
the course of the Engagement (unless their earlier return is requested), at the end of which they will
be returned to the Client unless separate arrangements have been made. MGI Parkinson may retain
copies of all such documents.
12.4. MGI Parkinson reserves the right to exercise a lien over any documents and files belonging to
the Client which may be in MGI Parkinson’s possession.
12.5. All original documents obtained from the Client arising from the Engagement will remain the
Client’s property. However, MGI Parkinson reserves the right to make a reasonable number of copies
of the original documents for MGI Parkinson’s records.
12.6. MGI Parkinson may store your electronic documentation in a cloud-based storage platform,
managed by a third-party provider. You consent to data being stored in these on-line storage
platforms. MGI Parkinson will not be held responsible or liable for any loss or damage arising from
your information being stored in cloud-based storage platforms.
13. Electronic Communications
13.1. MGI Parkinson may communicate with the Client electronically. The Client consents to MGI
Parkinson sending electronic communications to the Client, including email.
13.2. Electronically transmitted information cannot be guaranteed to be secure or virus or error free
and consequently such information could be intercepted, corrupted, lost, destroyed, arrive late or
incomplete or otherwise be adversely affected or unsafe to use. MGI Parkinson will not be liable to
the Client in respect of any error, omission or loss of confidentiality arising from or in connection
with the electronic communication of information to the Client.
14. Limitation of Liability
14.1. Liability limited by a scheme approved under Professional Standards Legislation. Further
information on schemes is available from the Professional Standards Councils’ website:
http://www.psc.gov.au.
14.2. To the extent permitted by law, MGI Parkinson has no liability for any indirect, incidental or
consequential expense, loss, damages or costs, loss of profits or revenue, business interruption, loss
of data, or failure to realise anticipated savings or benefits whatsoever incurred by or awarded
against the Client (whether or not MGI Parkinson has been advised of the possibility of such
expense, loss, damage or costs) arising in any way out of or in relation to the Services.
14.3. If the Client makes any claim against MGI Parkinson for loss arising out of or in connection with
the Services or the Agreement, liability for the Client’s loss and any amount the Client may recover
will be apportioned having regard to the respective responsibility for the loss.
14.4. To the extent permitted by law the Client is liable for and must indemnify and hold harmless
MGI Parkinson and its directors, employees and subcontractors from and against, any liabilities,
losses, claims, costs, damages or expenses, or actions that may be asserted by any third party,
arising from the Client’s breach of the Agreement or in connection with any third party claims arising
out of or in relation to the provision of the Services or any use by the Client of any deliverable under
the Agreement, or the Client’s breach of the Agreement, and must pay MGI Parkinson on demand
for all costs and expenses (including legal fees on a solicitor/client basis) incurred by MGI Parkinson
in connection with any such action or claim.
14.5. MGI Parkinson has not made any, and to the extent permitted by law MGI Parkinson excludes,
all warranties, conditions or guarantees of any nature in respect of the Services or the satisfactory
conclusion of the Services or with respect to the economic, financial or other results which the Client
may experience as a result of the provision of the Services.
14.6. Where warranties, conditions or guarantees or any other rights are implied in the Agreement
or otherwise conferred by the Australian Consumer Law set out in Schedule 2 of the Competition
and Consumer Act 2010 (Cth) or other laws, and it is not lawful or possible to exclude them, then
those warranties, conditions or guarantees or other rights will (but only to the extent required by
law) apply to the Agreement. To the extent permitted by law, MGI Parkinson limits its liability in
respect of such warranties, conditions and guarantees to the supply of the Services again or the
payment of the cost of having the Services supplied again.
14.7. The Client agrees not to bring any claim (whether in contract, tort (including negligence) or
otherwise) arising out of or in connection with the Services against any of MGI Parkinson’s officers,
employees or subcontractors personally. This will not limit or exclude any liability MGI Parkinson
may have for their acts or omissions. This clause is expressly for the benefit of MGI Parkinson’s
officers, employees and subcontractors, and the Client agrees that each officer, employee and
contractor is entitled to rely on this clause as if they were parties to the Agreement.
15. Expenses
If MGI Parkinson receives any notice or demand issued by any third party, including the Australian
Securities and Investments Commission, the ATO, the Australian Securities Exchange operated by
ASX Limited and known as ASX, any government statutory body or instrumentality or any court or
tribunal in relation to or in connection with the Services, the Client must pay MGI Parkinson’s
reasonable professional costs and expenses (including solicitor/client expenses) in complying with or
challenging any such notice or demand to the extent that MGI Parkinson’s costs and expenses are
not recovered or recoverable from the party issuing the notice or demand. MGI Parkinson will notify
the Client as soon as practicable (unless restricted by law) where MGI Parkinson receive any such
notice or demand.
16.Fees and costs
It is agreed that fees will be billed at the completion of work or on a more regular basis. Accounts
will be payable as stated on invoices.
Each client in the Group is jointly and severally liable to pay our fees in respect of all work performed
for all members of the Group. Any legal recovery action may be commenced and determined in any
Court of competent jurisdiction chosen by MGI Parkinson and not in the Court nearest our residence
or business premises. I personally accept liability to pay any account issued by MGI Parkinson to any
entity in my group. This includes myself, any company which I am a director or shareholder, or trust
of which I am a trustee, or a director of the trustee, or a partner in a partnership at the time the
liability was incurred.
17. GST
17.1. Words or expressions used in this clause that are defined in the GST Law have the same
meaning given to them in that Act.
17.2. Unless otherwise stated, any amount specified in the Agreement as the consideration payable
for any taxable supply does not include any GST payable in respect of that supply.
17.3. If a party makes a taxable supply under the Agreement (Supplier), then the recipient of the
taxable supply (Recipient) must also pay, in addition to the consideration for that supply, the
amount of GST payable in respect of the taxable supply at the time the consideration for the taxable
supply is payable.
17.4. Notwithstanding clause 17.3 the Recipient is not obliged under the Agreement to pay the
amount of any GST payable until the Supplier provides it with a valid tax invoice for the taxable
supply.
17.5. If an adjustment event arises in relation to a taxable supply made by a Supplier under the
Agreement, the amount paid or payable by the Recipient pursuant to clause 17.3 will be amended to
reflect this and a payment will be made by the Recipient to the Supplier or vice versa as the case
may be.
17.6. If a third party makes a taxable supply and the Agreement requires a party to the Agreement
(the payer) to pay for, reimburse or contribute to any expense or liability incurred by the other party
to that third party for that taxable supply, the amount the payer must pay will be the amount of the
expense or liability plus the amount of any GST payable in respect thereof but reduced by the
amount of any input tax credit to which the other party is entitled in respect of the expense or
liability.
18. Subcontractors
MGI Parkinson reserves the right to engage subcontractors in the performance of the Services.
Subject to any contrary provision in the Engagement Letter MGI Parkinson will remain liable to the
Client for any of the Services that are provided by MGI Parkinson’s subcontractors.
19. Term and Termination
19.1. The engagement permits MGI Parkinson to act on particular matters and the giving of this
authority shall not compel MGI Parkinson to undertake any action without express instruction unless
the client chooses. The engagement shall remain in force until terminated by either party or altered
by mutual consent. Any termination of the authority shall be in writing
19.2. MGI Parkinson may terminate the Agreement by notice in writing with immediate effect if:
(a) the Client fails to provide MGI Parkinson with clear or timely instructions to enable MGI
Parkinson to provide the Services; or
(b) the Client fails to pay any monies payable to MGI Parkinson under the Agreement within 30 days
of the due date.
19.3. Either party may terminate the Agreement by not less than 14 days notice in writing to the
other party.
19.4. On termination or expiration the Agreement, the Client must pay on demand all Fees and
expenses payable in respect of the Services provided up to the date of termination or expiration. If
the Agreement has been terminated for cause, the Client must pay MGI Parkinson’s reasonable costs
and expenses incurred in connection with the termination of the Agreement.
19.5. Termination or expiration of the Agreement will be without prejudice to any accrued rights of
each party.
20. Fees
20.1. MGI Parkinson may revise its fee scale from time to time. Rates quoted to you remain in force
until the next 31 December or 30 June (whichever is sooner). MGI Parkinson may increase its fees for
any work performed after these dates. MGI Parkinson reserves the right to change its rates outside
these dates and will communicate any such change directly to you.
20.2. You agree to pay fees for the Services, which will be charged on an hourly basis or as a fixed
price (as outlined in the Engagement Letter or Proposal). Goods and Services Tax (“GST”) at the
prevailing rate will be added to and forms part of MGI Parkinson’s fees (where applicable). It is a
fundamental term of this Contract that we look to you as the responsible party for the payment of
our fees and expenses. This is despite the fact that part of our fees and expenses may relate to
Services provided to other entities and/or individuals.
20.3. Your obligation to pay MGI Parkinson the fees and expenses arises at the commencement of
the Contract after which you will be issued an invoice(s). Fees and expenses will be invoiced as
stipulated in the Engagement Letter (or Proposal) and are payable within 30 days of the invoice date.
Where an amount for GST is stated to be a component of the fees and expenses, MGI Parkinson’s
invoice will be a compliant “tax invoice” for GST purposes.
20.4. If You are paying fees by monthly instalment and terminate the Services prior to completion of
the time period covered by the instalments, You agree to pay MGI Parkinson an amount equal to the
actual time spent in providing the Services (charged at our normal hourly rates) less any instalments
paid during the time period. In the event that you have paid instalments which are greater than the
value of actual time spent, no refunds are payable from MGI Parkinson to You.
21. General
21.1. (Relationship with other clients) MGI Parkinson provides Services to other clients, some of
whom may be in competition with the Client or have interests which conflict with the Client’s own.
MGI Parkinson will not be prevented or restricted by virtue of MGI Parkinson’s relationship with the
Client under the Agreement from providing Services to other clients.
21.2. (MGI Parkinson’s relationship with the Client) The Client acknowledges and agrees that MGI
Parkinson’s relationship with the Client is that of an independent contractor. Neither of MGI
Parkinson nor the Client may claim or make any representation whatsoever to any third party that it
is an agent of, or in partnership with, the other party and each party acknowledges that is has no
power or authority to bind the other in respect of any matter whatsoever and it will not represent to
any person that it has such power or authority.
21.3. (Waiver) A failure or delay by a party in exercising a power or right given to it under the
Agreement does not operate as waiver of that power or right, nor does a single or partial exercise of
a power or right prevent any other or further exercise of it. A waiver by a party of a power or right
given to it under the Agreement does not affect any other provision of the Agreement.
21.4. (Governing Law) The Agreement will be governed by and construed in accordance with the
laws from time to time in force in Western Australia and the parties hereto irrevocably submit to the
exclusive jurisdiction of the Courts of that State and any Courts competent to hear appeals
therefrom. The parties irrevocably waive any right they may have to object to any action being
brought in an inconvenient forum or to claim that those Courts do not have jurisdiction.
21.5. (Force majeure) Neither MGI Parkinson or the Client will be liable to the other for any delay or
failure to fulfil their obligations (excluding payment obligations) under the Agreement to the extent
that any such delay or failure arises from causes beyond their control, including but not limited to
fire, flood, acts of God, acts or regulations of any governmental authority, war, riot, terrorist
activities, strikes, lockouts, industrial disputes, including without limitation, incorrect email
addresses, internet failures, computer equipment failures, other equipment failures, or nonperformance
of third parties.
21.6. (Assignment) The Client may not transfer, charge or otherwise seek to deal with its rights or
obligations under the Agreement without the prior written consent of MGI Parkinson.
21.7. (Severance) If any provision of the Agreement is held to be invalid, in whole or in part, such
provision shall be deemed not to form part of and will be severed from, the Agreement. The
enforceability of the remainder of the Agreement will not be affected.
21.8. (Entire Agreement) The Agreement forms the entire agreement between MGI Parkinson and
the Client relating to the Services. It replaces and supersedes any previous correspondence,
understandings or other communications (written or oral).
22. Definitions
In this document:
Agreement
means the agreement between MGI Parkinson and the Client as set out in these Terms and
Conditions and the Engagement Letter, together with any changes to the Agreement that are agreed
in writing between the parties.
ATO
means the Australian Taxation Office.
Client
is defined in the Engagement Letter.
Commencement Date
means the date of execution of the Engagement Letter by or on behalf of the Client or the date on
which the Services commenced, whichever is earlier.
Confidential Information
means all non-public information or documents which either party receives or produces in
connection with the Services and includes MGI Parkinson’s working papers, information and
methodologies, but does not include any information which is:
(a) or becomes generally available to the public other than as a result of a breach of this clause;
(b) known to either party prior to MGI Parkinson commencing the Services;
(c) received from a third party who owes no obligation of confidence in respect of the information;
or
(d) developed by either party independently of the services to which the Agreement relates.
MGI Parkinson
Means Parkinson & Co Pty Ltd ACN 008 980 014
Engagement
means the engagement by the Client of MGI Parkinson to perform the Services, as contemplated in
the Engagement Letter.
Engagement Letter
means the engagement letter to which these Terms and Conditions are referenced.
Fees
means the fees described in the Engagement Letter, as amended by any changes that are agreed in
writing between the parties.
GST Law
has the meaning given to that term in the A New Tax System (Goods and Services Tax) Act 1999 (Cth)
and includes any other Act or regulation relating to the imposition or administration of GST.
Intellectual Property Rights
includes all rights throughout the world in relation to patents, copyright (including moral rights),
designs, registered and unregistered trade marks, trade secrets, know-how, confidential information
and all other intellectual property and any right to register those rights, whether created before or
after the date of the Agreement and in all cases for the duration of those rights and any renewal.
Privacy Act
Privacy Act 1988 (Cth).
Services
is defined in the Engagement Letter.
Term
is defined in the Engagement Letter.
Terms and Conditions
means the terms and conditions set out in this document.