Terms & Conditions
For the provision of Services by Watson & Watt Pty Ltd ACN 138 044 612 (we/us/our).
These Engagement Terms (Terms) and our proposal documentation (Proposal) form the basis of our agreement with you (collectively the Agreement) and are our offer of Services to you.
You accept our offer if you:
1.1 sign and return the Proposal; or
1.2 continue to request (either orally or in writing) that we perform work for you after receiving the Proposal.
2.1 Our Proposal may take different forms and may also be made up of separate parts, which are to be taken as joined and to form one single document.
2.2 Where our Proposal specifies a ‘scoping’ component, we reserve the right to unilaterally vary our Proposal (acting reasonably) as a consequence of findings made during the scoping process.
2.3 You must tell us immediately if you disagree with anything contained in our Proposal or if you think we have misunderstood your requirements.
2.4 If there is any inconsistency between these Terms and the Proposal, the Proposal will prevail to the extent of that inconsistency.
3.1 Either party may request variations to the Services or Deliverables at any time. If both parties agree to the variation in writing, then the Proposal will be deemed to be updated to reflect the change and will vary the Agreement.
3.2 We may also reasonably update the Proposal where any of our Assumptions are proven to be incorrect.
You must assign a contract administrator to manage your receipt of the Services and ongoing dealings with us. You agree that the contract administrator has suitable skill, knowledge and/or experience to receive the Services and has your authority to make decisions regarding the Services and this Agreement on your behalf.
You confirm that you, and any other person you nominate in writing from time to time (provided we have acknowledged such nomination), are authorised to give us instructions and information on behalf of all persons we are acting for and to receive our advice and documents on their behalf.
If we are acting for a business, and we receive conflicting advice, information or instructions from different persons, we may refer the matter to the board of directors, partners or proprietors (as applicable) and act only as requested by them.
5.1 Provision of Services
We will provide our Services in:
5.1.1 a professional manner with due care, skill, diligence and in compliance with professional and ethical standards applicable to the Services (including those contained in the Tax Agent Services Act 2009 (Cth) and those set by the Australian Accounting Standards Board and the Accounting Professional Ethical Standards Board (APES)) ), which among other things contains provisions that apply if we become aware of any actual or potential ‘non-compliance with governing laws or regulations’ (NOCLAR). Where any such non-compliance poses substantial harm (such as serious adverse consequences to investors, creditors, employees, auditor, group auditor or the public), we may be required to disclose the matter to an appropriate authority.; and
5.1.2 in accordance with these Terms and as set out in the Proposal.
5.1.3 Unless otherwise set out in the Proposal, we will not:
5.1.4 update any of our advice or recommendations provided as part of the Services as a consequence of any updates or changes of interpretation of the Law; or
5.1.5 conduct an audit or a review, accordingly, no assurance will be expressed. Unless otherwise agreed, our engagement cannot be relied upon to disclose irregularities including fraud, other illegal acts and errors that may occur. However we will notify you if we become aware of such matters.
5.1.6 To the extent our services involve the performance of services established by law, nothing in the engagement letter or these terms reduce our obligations under such law.
5.1.7 Where our engagement is recurring, we may amend our engagement letter and these terms where we consider it is necessary or appropriate to do so. If you do not accept such amendments, you must notify us promptly in which case you may terminate our engagement in accordance with section 18 below and those amendments will not apply prior to such termination.
5.2 Reliance on advice
We will endeavour to record all advice on important matters in writing. Advice given verbally is not intended to be relied upon unless confirmed in writing. If we provide verbal advice (for example during a meeting or telephone conversation) that you wish to rely on, you must ask us to confirm the advice in writing.
5.3 Investment and financial advisory advice
We will not provide you with investment or financial advice regulated under the Corporations Act 2001 (Cth) unless we have expressly agreed to do so in writing, specifying an applicable Australian Financial Services Licence number.
5.4 Your responsibilities and acknowledgements
5.4.1 To enable us to properly perform the Services in accordance with this Agreement, you must promptly provide us with all reasonable:
5.4.2 information, access, models, financials, valuations, assistance, reports, data, resources, records and materials; and
Personnel resources of yours, following our request.
5.4.3 You acknowledge that the Proposal assumes that:
22.214.171.124 the information you provide to us will be accurate, complete, in the form we reasonably require and not misleading; and
126.96.36.199 you will comply with your obligations under 5.2(a).
5.5 You acknowledge and agree that:
5.5.1 you have obligations under self-assessment to keep full and proper records in order to facilitate the preparation of accurate returns
5.5.2 all decisions made in connection with the implementation of advice and recommendations forming part of our Services are solely made by you and are your responsibility;
5.5.3 the judgements needed for the preparation and presentation of our Services and Deliverables are your sole responsibility;
5.5.4 our conclusions, forecasting and advice delivered as part of the Services are based on information and assumptions that you furnish to us which we will not independently investigate or verify (unless specified in the Proposal). Accordingly, inaccuracies and incomplete data, material or information furnished by you or on your behalf could have a material adverse effect on the veracity of our conclusions, forecasting and advice;
5.5 Any and all advice is given as our opinion based on our knowledge of your affairs.
5.6 the Services cannot be relied upon to identify or cause the disclosure of errors or illegal acts (such as fraud and defalcations) that have occurred in respect of your previous financials;
5.7 all modelling and forecasting we produce will be based on assumptions which will be brought to your attention;
5.8 subject to the provisions of this Agreement, we may act for other clients whose interests are not the same as or are adverse to yours;
5.9 unless otherwise set out in the Proposal, the Services are provided for your sole benefit and must not be relied upon by a third party or be used to benefit a third party;
5.10 you solely assume all management responsibilities and must perform all management functions relating to your business;
5.11 your contract administrator must:
5.11.1 oversee all Services along with evaluating the adequacy of the Services;
5.11.2 accept responsibility for the Services; and
5.11.3 establish and maintain internal controls and evaluations relating to your receipt of the Services and your Personnel’s access to the Project Materials, Client Materials and Services.
6.1 Our Delivery Plan is an estimate only and you agree that we are not liable for any delay in or change to it. We will take reasonable steps to mitigate and minimise delay on our part and the impact such delay may cause.
6.7 If we become aware of any delay (or likely delay) in delivery, we will endeavor to promptly notify you of the details of the delay and provide you with a revised Delivery Plan.
6.8 If you fail to adhere to any due dates or otherwise protract our delivery of the Services through your conduct, any additional costs incurred by us will be your responsibility.
We will inform you if we become aware of any conflict of interest in our relationship with you. Where conflicts are identified which cannot be managed in a way that protects your interests, we will be unable to continue to provide further services to the parties giving rise to the conflict.
We may act for other clients whose interests are not the same as or are adverse to yours, subject to the obligations of conflicts of interest and confidentiality referred to above.
8.1 You and your spouse/partner
8.1.1 We will advise you and your spouse/partner on the basis that you are a family unit with shared interests. We may deal with either of you and may discuss with either of you the affairs of the other. If you wish to change these arrangements, please let us know.
8.2 We may engage third parties
8.2.1 We may in our sole discretion subcontract any part of our Services to a third party without notice to you and without your consent.
8.2.2 You acknowledge that third parties that we engage may or may not be located in Australia.
8.2.3 We may utilise outsourced service providers and cloud computing service providers, including:
188.8.131.52 The Outsourced Accountant and Access Offshore both based in the Philippines to provide us with staff that may work on your affairs.
184.108.40.206 Xero.com/au based in various jurisdictions around the world to provide us with accounting and practice management software.
220.127.116.11 To perform the services, we may provide these third parties with access to your data to the extent this is required to perform the services.
8.3 Our engagement of third parties
We will use our best endeavours to ensure that third parties that we engage in the performance of the Services:
8.3.1 are competent and professional;
8.3.2 are bound by the intellectual property and confidentiality provisions of this Agreement or otherwise to provisions equivalent in effect;
8.3.3 have the qualifications and experience necessary to ensure full and proper performance of the duties allocated to them; and
8.3.4 do not breach or cause us to breach any of our obligations under this Agreement.
8.4.1 Upon request, or where we believe beneficial to you, we may introduce you to third parties.
8.4.2 Some third parties that we make introductions to provide us with direct and indirect benefits for making the introduction.
8.4.3 Upon receipt of notice from you, we will promptly provide you with full and complete details of any benefits that we may receive from third parties or that we have received in the last 12 months in relation to introductions between you and third parties that we have made.
9.1 As part of our Services we may recommend, install, implement, train and/or support third party software solutions (Software).
9.2 You acknowledge and agree that:
9.2.1 you have had an opportunity to obtain, read and understand the license terms and conditions relating to your use of any such Software (Software License);
9.2.2 you are solely responsible for:
18.104.22.168 your compliance with the Software License; and
22.214.171.124 all fees and costs relating to your access and use of the Software; and
9.3 we will not be responsible for any Loss that you suffer as a consequence of interruptions or malfunctions with the Software.
9.4 We use software within our business that stores information about you and that these software providers may store this data outside Australia.
10.1 Intellectual property rights
Unless otherwise specified in the Proposal:
10.1.1 each party retains all right, title and interest in and to its pre-existing IPR’s;
10.1.2 We own the copyright and all other intellectual property rights in everything we create in connection with this engagement.;
10.1.3 nothing in these Terms prohibits us from using or licensing our IPR’s in the Project Materials or Deliverables to third parties; and
10.1.4 we grant you a non-exclusive, transferrable, sublicensable, royalty free license to use and exploit the IPRs in the Deliverables and the Project Materials strictly for the purpose they were provided (as detailed or inferred from the Proposal).
10.2 Third party rights
You must ensure that we are permitted to use any third-party information or IPR’s that you provide to us for use in the provision of our Services.
11.1 Service Fees
As consideration for our delivery of the Services, you agree to pay us the Service Fees in the amount and manner specified in our Proposal.
11.2 Initial deposit
We may require you to make payment of an initial deposit, in accordance with our Proposal, before we commence the provision of our Services. The initial deposit will be applied by us to Services rendered, following the issue of our invoice/s to you.
11.3 Hourly rates
Services we provide on a time basis, or work required outside the scope of our Proposal, will be charged in accordance with our Personnel’s hourly charge out rates as specified in our Proposal or as otherwise notified to you. All work conducted on a time basis will be charged in a minimum of 15-minute blocks.
11.4 Fixed fees
Services we provide on a fixed fee basis are subject to amendments to the Proposal under sub clause 3(b) and otherwise will be provided strictly in accordance with the scope detailed in our Proposal, as reasonably determined by us in our sole discretion.
You must pay any costs and reasonable out-of-pocket expenses incurred by us which are necessary to provide our Services (Expenses) as set out in our Proposal or otherwise notified to you in writing and approved.
We will invoice you for the Service Fees and Expenses in accordance with our Proposal or where unspecified, each calendar month that we provide Services.
11.7.1 You must pay us all amounts outlined in our invoice within 7 days (unless otherwise specified by us) in the manner reasonably nominated by us, without set-off, counter-claim, holding or deduction.
11.7.2 Subject to clause 11.8, if you fail to pay any of our fees in accordance with sub-clause (11.7.1), we may charge you:
126.96.36.199 for all costs and expenses incurred by us in recovering our outstanding fees from you; and
188.8.131.52 compound interest at a rate of 10% per annum on the overdue amount which will begin accruing on the first day that payment is overdue.
184.108.40.206 If we receive a tax refund on your behalf, you agree that we may apply the refund to our outstanding fees before paying the balance to you.
11.8 Disputed fee
11.8.1 If you dispute the whole or any portion of the amount claimed in an invoice, you must pay the portion of the invoice which is not in dispute (in accordance with sub-clause 11.7) and provide notice to us within 7 days of receipt of the invoice your reasons for dispute (Invoice Notice).
11.8.2 Upon receipt of your Invoice Notice, we will within a reasonable time provide you with evidence substantiating the Service Fees and Expenses and addressing your reasons of dispute.
11.8.3 If the dispute cannot be resolved within 7 days of our substantiation under sub-clause (11.8.2), the dispute must be referred to the dispute resolution procedure in clause 13.
11.9 Lien and access obstruction
11.9.1 If you fail to make payment to us in accordance with clause 11.7, we may exercise a lien over all Client Materials, Project Materials and Deliverables that we have in our possession or control. This includes us obstructing access to any Software, businesses processes or systems or live financial modelling and information that you may use.
11.9.2 We will release our lien and reinstate all access we have obstructed upon receipt of payment or adequate security for the outstanding amount.
11.2 Security agreement
Immediately upon your default of a 7-day demand requiring fulfilment of your payment obligations under clause 11.7:
11.2.1 you agree that you charge all of your right, title and interest in all of your present and after acquired personal property (including any proceeds from the sale of such property) (Secured Property) to us as security for the payment of all outstanding amounts owed to us under this Agreement;
11.2.2 you agree that we may register a security interest over Secured Property on the PPSR without notice to you or any other person and pursuant to s 144 of the PPSA you waive your right to receive notices under ss 95, 118, 121, 130, 132 and 135 of the PPSA;
11.2.3 you waive your right to receive a verification statement under s 157 of the PPSA; and
11.2.4 you agree to pay our reasonable costs, sign any documents and provide any further information to us to enable us to perfect the registration of a security interest granted under this sub-clause 11.9 and to enforce our rights under it.
11.3.1 Unless otherwise expressly stated in our Proposal or these Terms, all amounts payable to us under this Agreement are exclusive of GST.
11.3.2 If GST is imposed on any supply made under or in accordance with this engagement and GST has not been accounted for in determining the consideration payable for the supply, then we may recover from you an amount on account of GST. That amount is equal to the value of the supply calculated in accordance with the A New Tax System (Goods and services Tax) Act 1999 (Cth) multiplied by the prevailing GST rate.
12.1 Recipient must keep Confidential Information confidential
Each party must:
12.1.1 keep confidential all Confidential Information;
12.1.2 only use Confidential Information for the purpose of providing or receiving (as the case may be) the Services; and
12.1.3 procure that its Personnel comply with sub-clauses (1) and (2).
12.2 Disclosure exceptions
The obligations in sub-clause 12.1 do not apply:
12.2.1 to the extent necessary to enable a party to make any disclosure required by Law (including disclosures we are compelled to make to the ATO pursuant to the tax Laws);
12.2.3 to the extent necessary to enable a party to perform its obligations under this Agreement;
12.2.4 where disclosure is required for any quality assurance (quality review program of Chartered Accountants Australia or APES) or insurance purposes;
12.2.5 to the extent necessary to receive professional (legal or financial) advice;
12.2.6 to any disclosure agreed in writing between the parties; or
12.2.7 in respect of any portion of the Confidential Information which has entered the public domain other than as a result of a breach of this Agreement.
12.2.8 we provide limited information (but only to the extent reasonably necessary) to potential purchasers (or their professional advisors) of our practice but we will take reasonable steps to ensure that any such recipient keeps the disclosed information confidential; or
12.2.9 you give us permission to disclose the information
12.2.10 We may retain your information during and after our engagement to comply with our legal requirements or as part of our regular IT back-up and archiving practices. We will continue to hold such information confidentially.
12.3 Use of client’s details
You agree that we may mention that you are a client for promotional purposes and publish your branding on our website or other advertising medium representing you as our client for the purposes of advancing our own publicity, provided we comply with the confidentiality obligations contained in sub clauses 12.1 and 12.2.
12.4.1 We will:
220.127.116.11 comply with applicable Australian privacy Laws; and
18.104.22.168 not do any act, engage in any practice, or omit to do any act or engage in any practice that would cause you to breach applicable Australian privacy Laws.
12.4.2 You must:
22.214.171.124 comply with all applicable Australian privacy laws; and
126.96.36.199 make all notifications and obtain all consents required for us to process all personal information you provide to us so that we are not caused to breach applicable Australian privacy Laws.
12.5 Use of Client Material
You grant us a licence to use the Client Material for the purpose of us providing the Services under this Agreement, including the right to use, reproduce, modify and create derivative works of the Client Material for that purpose.
12.6 Data security requirements:
If we or a subcontractor of ours deals with any of the Client Material, we must:
12.6.1 comply with those policies relating to data security you have provided to us along with any reasonable requirements you make from time to time;
12.6.2 comply with any reasonable direction from you with respect to remedying or addressing any loss or unauthorised use or access to your Client Material;
12.6.3 inform and co-operate with you in the event of any risk regarding the security of your Client Material; and
12.6.4 comply with any reasonable additional data security requirements set out in the Proposal.
13.1 If a dispute (Dispute) arises between the parties to this Agreement which they cannot resolve, then the party claiming that a Dispute has arisen must deliver to the other parties a notice containing particulars of the Dispute.
13.2 During the period of 10 business days after delivery of the Dispute Notice, or any longer period agreed in writing by the parties to the Dispute (Initial Period), the parties must meet in good faith in an attempt to resolve the Dispute.
13.3 If the parties cannot resolve the Dispute within the Initial Period then unless they all agree otherwise, they must appoint a mediator to mediate the Dispute in accordance with the rules of the Resolution Institute. The parties must participate in the mediation in good faith.
13.4 The mediator must be agreed on by the parties within 10 business days after the Dispute Notice is given to the parties and if they cannot agree within that time the mediator will be nominated by the president of the Resolution Institute.
13.5 The mediation concludes when:
13.5.1 all the parties agree in writing on a resolution of the Dispute; or
13.5.2 a party, not earlier than 20 business days after appointment of the mediator, has given 5 business days’ notice to the other parties and to the mediator, terminating the mediation, and that 5 business days has expired without all the parties agreeing in writing on a resolution of the issue.
14.1 Our liability is limited by a scheme approved under Professional Standards Legislation.
14.2 Unless otherwise required by Law, our liability for any Loss arising from any breach of this Agreement or any issue with the Services or Deliverables we have provided, in contract, tort or equity are limited to the amount that you have paid to us under this Agreement.
14.3 Unless otherwise specified in the Proposal, we are not responsible for rectifying any malfunctions or issues with any Project Materials or Deliverables or any part of the Project Materials or Deliverables following the expiration of this Agreement as part of the original scope of work.
14.4 To the maximum extent permitted by Law, we will not be liable for any Consequential Loss arising in connection with this Agreement even if we were appraised of the likelihood of such loss or damage occurring; or liability arising due to the acts or omissions of any other person or circumstances outside our reasonable control, or your breach of these terms.
14.5 Liability for breach of a guarantee conferred by the Australian Consumer Law (other than those conferred by ss 51 to 53 of the Australian Consumer Law) is limited (at our election) to us providing the Services again or the cost of having the Services supplied again.
14.6 We will not be liable for any part of our Services or Deliverables including that are conditional upon Assumptions or the current legal position where further information or events result in those Assumptions being incorrect or current legal position changing.
14.7 You agree not to bring any claim against any of our directors, shareholders or employees in their personal capacity.
15.1 Your indemnity
You agree to indemnify us and keep us indemnified against any Loss that may be incurred by us arising from or in connection with:
15.1.1 any breach or default by you of this Agreement;
15.1.2 a negligent act or omission by you or by a party you are responsible for;
15.1.3 your failure to comply with any Law;
15.1.4 any Claim made against us by any third party in connection with the information or documents that you have provided to us; or
15.1.5 the failure of a party you are responsible for in complying with any Law or the stipulations of this Agreement.
To the extent that any Claim or Loss occurs as a result of any negligent act or omission caused by us, or our failure to comply with material obligations of this Agreement, your liability under clause 15.1 will be proportionately reduced.
16.1 Duration of Agreement
This Agreement commences on the date of your acceptance of it (under clause 1) and continues until:
16.1.1 all Services and Deliverables are provided and all payments owed to us are received; or
16.1.2 termination under either sub-clause 16.2 or 16.3.
16.2 Termination by notice
Either party may terminate this Agreement at any time by providing the other with 30 days written notice, unless a Law or other professional standard precludes a party from continuing to perform or receive the Services, in which case the Agreement may be terminated by a party immediately by providing notice in writing to the other.
16.3 Termination for breach
16.3.1 If either party breaches any of these Terms and such a breach is capable of rectification, the other party must give the defaulting party written notice requesting that the breach be rectified within 5 business days.
16.3.2 If a breach has not been rectified within 5 business days of the giving of a Breach Notice, the party giving the Breach Notice may terminate this Agreement immediately by notice in writing to the other.
16.3.3 If any party breaches a material term and the breach is not capable of rectification, the other party may terminate this engagement immediately by notice in writing to the party in breach.
16.4 Consequences of termination
16.4.1 Following termination you must:
188.8.131.52 promptly pay all Expenses that have been incurred by us to date in accordance with clause 11.3 and all outstanding Service Fees in accordance with clause 11.7 that are not subject to dispute under clause 11.8; and
184.108.40.206 return or delete all of our Confidential Information that has been provided to you during the provision of our Services.
220.127.116.11 Following termination we must:
16.4.2 refund you the balance of any money that you have paid in advance, once we have set-off all of our outstanding Service Fees and Expenses; and
16.4.3 return or delete all of your Confidential Information that has been provided during the provision of our Services, except for one copy where required for quality assurance or insurance purposes.
Any notice given under or in connection with this engagement:
17.1 must be in legible writing and in English;
17.1.1 must be addressed to a party’s contact address as shown on the Proposal or as otherwise notified by a party to the other party from time to time;
17.1.2 must be:
18.104.22.168 delivered to that party’s address;
22.214.171.124 sent by pre-paid mail to that party’s address; or
126.96.36.199 sent by email to that party’s email address; and
17.2 will be deemed to be received by the addressee:
17.2.1 if delivered by hand, at the time of delivery;
17.2.2 if sent by post, on the third business day after the day on which it is posted, the first business day being the day of posting; or
17.2.3 if sent by email, at the time that would be the time of receipt under the Electronic Transactions Act 1999 (Cth).
In interpreting this document:
18.1.1 headings are for convenience only and will not affect interpretation of this Agreement;
18.1.2 words in the singular include the plural and words in the plural include singular, according to the requirements of the context;
18.1.3 a reference to a statute, regulation, code or provision of a statute, regulation or code (Statue) includes that Statute as amended or re-enacted, a statute, regulation, code or provision enacted in replacement of that Statute, another regulation or other statutory instrument made or issued under that Statute and any amendment made to that Statute as a consequence of another statute, regulation, code or provision;
18.1.4 a reference to any of the words “include”, “includes” and “including” is read as if followed by the words “without limitation”; and
18.1.5 terms used that are defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth), Personal Property and Security Act 2009 (Cth) or the Corporations Act 2001 (Cth) have the meaning given in that Act, unless the context otherwise requires.
During the Term of this Agreement and for a period of 12 months after its expiration, neither party will solicit, interfere with or endeavour to entice away any Personnel or customers/clients of the other party or counsel, procure or assist any person to do those things.
18.3 Survival and essential terms
18.3.1 Clauses 9, 10, 11, 12, 13, 14, 15, 16.4, 18.2, 18.8, 18.9, 18.13 and 18.14 and are taken to survive this Agreement.
18.3.2 Clauses 5, 9, 10, 11 and 12 are essential terms of this Agreement.
Any amendments to these Terms must be made in writing or if agreed verbally between us, must be confirmed in writing within a reasonable time after such verbal agreement.
18.5 Our guarantees
18.5.1 From time to time, we offer service guarantees to our clients, as published on our website.
18.5.2 We agree to honor the guarantees that are published at the time you enter into this Agreement, in accordance with the stipulations of those guarantees.
18.5.3 Subject to clause 18.5(b), you acknowledge and agree, that we may in our sole discretion, amend, remove or replace any of our service guarantees at any point in time.
18.6 Trust account
We maintain a trust account for dealing with client monies on their behalf. We can only accept money into our trust account on your behalf if you have provided us with a written trust account authority letter which details the authority given to us in relation to that trust money.
18.7 Active spreadsheets
18.7.1 We may use models, electronic files and spreadsheets with embedded macros created by us or on our behalf to assist us with providing the Services.
18.7.2 If you request a working copy of any such model, electronic file or spreadsheet, we may, in our sole discretion, make it available to you for your own internal use on the basis you otherwise comply with all your obligations under this Agreement (particularly clauses 9, 10 and 12.1).
18.8.1 Subject to clause 18.8(b), a party cannot assign, novate or otherwise transfer any of its rights or obligations under these Terms without the prior written consent of the other party.
18.8.2 You agree that if we merge or amalgamate with another entity or otherwise sell or dispose of our business, we may assign or novate this Agreement and all Client Materials, personal information, Confidential Information, to that other entity upon providing written notice to you, provided that entity agrees to be bound by the stipulations in this Agreement or to stipulations equivalent in effect.
18.9 Further assurances
Each party must promptly do all further acts and execute and deliver all further documentation reasonably requested by the other party to give effect to the contemplations of this Agreement.
Unless these Terms expressly state otherwise, a party may in its absolute discretion, give conditionally or unconditionally or withhold, any consent under these Terms. To be effective any consent under these Terms must be in writing.
18.21 Force majeure
A party will not be liable for any failure or delay in the performance of its obligations under the Agreement to the extent that such failure or delay:
18.21.1 is caused by a circumstance not within the reasonable control of the party; and
18.21.2 could not have been reasonably avoided, prevented or circumvented by the party.
The non-exercise of or delay in exercising a right of a party will not operate as a waiver of that right, nor does a single exercise of a right preclude another exercise of it or the exercise of other rights. A right may only be waived by written notice signed by the party to be bound by the waiver.
This engagement is governed by the law in force in the State of Queensland and each of us submit to the non-exclusive jurisdiction of the courts of Queensland.
Any provision of these Terms that is illegal, void or unenforceable will be severed without prejudice to the balance of the conditions which will remain in force.
In consideration of our provision of Services, each person who accepts this Agreement acknowledges and agrees:
19.1 that they are jointly and severally liable for the payment of our Service Fees along with all other Expenses relating to our performing of the Services as if they were the engaging party named in our Proposal and referred to in these Terms; and
19.2 to indemnify us for any Loss we suffer because the party engaging us does not pay our Service Fees and Expenses for any reason.
You acknowledge that:
20.1 you have read, understood and have agreed to be bound by the Agreement;
20.1.1 you have received and will retain your own copies of these Terms and our Proposal; and
20.1.2 you have been informed by us that you should seek independent advice in relation to these Terms prior to accepting our offer of Services.
In these Terms the following definitions apply:
1. any qualifications or suppositions detailed relating to the Services or Deliverables set out in the Proposal; and
2. the expectations we have relied upon as set out in clause 5.2.2.
Client Material means all data, information and material you own or receive under license which you provide or make available to us in connection with the provision of our Services.
Confidential Information means information that is by its nature confidential and:
1. is designated by a party as confidential;
1.1 is described in the Proposal as confidential; or
1.2 a party knows or ought to know is confidential,
but does not include information that:
1.3 is or becomes generally available in the public domain, other than through any breach of confidence;
1.4 is rightfully received from a third person other than as a result of a breach of confidence; or
2. has been independently developed by a party without using any Confidential Information of the other.
Consequential Loss means indirect economic loss, loss of income or profit, loss or damages resulting from wasted management time, damage to goodwill or business reputation, loss of contract, loss of data, liability under other agreements or to third parties, loss of opportunity or any other special, indirect, remote or punitive loss or damage.
Claim includes, in relation to a person, a demand, claim, action, dispute or proceeding made or brought by or against the person, however arising and whether present, unascertained, immediate, future or contingent.
Deliverable means Project Materials created or provided by us in the course of, or as a consequence of, providing the Services that are identified as a deliverable in the Proposal.
Delivery Plan means the timetable for the delivery of the Services outlined in the Proposal.
IPR’s means all intellectual property rights of whatever nature including all rights conferred under statute, common law or equity, including all copyrights, patent rights, trade mark rights (including any goodwill associated with those trade mark rights), design rights and trade secrets together with any documentation relating to those rights but does not include moral rights.
Law includes any requirement of any statute, rule, regulation, common law, proclamation, ordinance or by-law, present or future, and whether state, federal or otherwise.
Loss includes any damage, loss, cost, liability or expense of any kind and however arising (including as a result of any Claim) including penalties, fines and interest whether prospective or contingent and any amounts that for the time being are not ascertained or ascertainable.
Personnel means employees, agents and contractors.
PPSA means the Personal Property Security Act 2009 (Cth).
PPSR means the Personal Property Security Register established under the PPSA.
Project Materials means any methodologies, tools, ideas, processes, documents (including working proofs), diagrams, graphics, plans, models, electronic files and spreadsheets, process maps, instructions, drawings, reports, software code, know-how, training materials and instructions created or adapted by us during the course of providing the Services.
Proposal means the document we have provided to you specifying in detail the Services, Deliverables, Delivery Plan and Service Fees.
Services mean all advisory and tax related services we are providing as set out in our Proposal.
Service Fees means our fees for the provision of our Services.