STANDARD TERMS OF ENGAGEMENT OF JMP ACCOUNTANTS
The following sets out the standard terms of engagement (Standard Terms) of NRD Pty Ltd ATF NRD Discretionary Trust T/A JMP Accountants ABN 62 539 058 711 (JMP Accountants, us, we, our) and the persons named as a client in the Engagement Letter (client, you, your). These Standard Terms form part of the Agreement between you and us.
1. The basis on which our professional costs will be calculated
We may charge our professional costs to you in accordance with one or more of the following methods of charging:
a) on an hourly basis for work performed;
b) on an hourly basis for work performed, but with an agreed cap on our fees for some or all of the work performed;
c) on a fixed fee basis for some or all of the work performed;
d) annually, on a fixed fee basis for some or all of the work performed; or
e) a combination of the above.
Unless we specify to the contrary in our Letter or in other correspondence with you, the default method of charging our professional costs is on an hourly basis. If our Engagement Letter includes a fee cap or fixed fee, we reserve the right to charge for Additional Services pursuant to clause 3.
2. Hourly rate or hourly basis charging
Our hourly rate includes professional services/advice, secretarial, computer and word processing work. Our accountants and support staff record their time and each accountant and support staff has an hourly charge rate which reflects their skill and experience.
Without limiting the work we may perform for you, time spent on your tax and accounting affairs includes (without limitation), the time we spend drafting and lodging documents, forms and correspondence, meetings, travel to and from meetings, telephone calls, emails, SMS’s or other instant communications, preparing advices, communicating with third parties, considering issues, research and related administrative tasks.
Where we charge you on an hourly or time basis, we will charge our time on the basis of a six (6) minute unit, with one (1) unit applying to any time of six (6) minutes or part thereof. Each unit is charged at one tenth (1/10) of the applicable hourly rate.
Schedule 2 of our Engagement Letter sets out our professional fees at the date of our engagement. However, our hourly rates may change during your engagement with us. The change may occur due to new staff or consultants working on your tax affairs, staff promotion, annual updates of our charge out rates or for other reasons. We will notify you in advance of any increase in our professional rates. Our increased fees will apply to all services we provide you, commencing 30 days after the date we notify you of the fee increase.
Our firm may directly engage other accountants or other professional advisors to assist us with the delivery of our professional services to you (which includes without limitation preparation of super compliance documents). We engage these practitioners to assist us generally or during periods where we have capacity constraints, to ensure the efficient delivery of services to you, or to provide you with specific professional support. You will be charged by us for the work which these other practitioners undertake at the hourly rates indicated above, or otherwise notified to you. We will be responsible for paying any agreed rates between us and any other practitioner for the work they perform on our behalf.
Note that the forgoing does not apply to third party consultants engaged under clause 5. We will let you know if we consider it advisable to engage specialist consultants and practitioners and in which case the provisions of clause 5 will apply together with any additional third party terms and conditions.
3. Standard conditions which apply to all fee estimates, fee caps and fixed fee quotes which we provide
We will where practicable, and/or where required by law, provide you with a fee estimate for any work we undertake. Our fee estimate will specify if you are being charged an ad hoc or annual fee. Where provided, our fee estimate will initially be set out in our Engagement Letter, but we may send you an updated fee estimate from time to time if required during the term of our engagement. If you have engaged us on an annual basis, we will provide you with updated fee estimate with a reasonable time before the conclusion of each 12 month period (but only if there will be a change to our annual fee estimate). Our invoices are payable as set out in clause 12 below.
Any fee estimate we provide you is a good faith estimate of the total professional costs which you will incur in your engagement with us, as of the date it is given. When we provide a fee estimate, we do so based on your instructions, the agreed scope of works, our experience in acting in similar matters for you or other clients, and on the basis that no Additional Services (as defined below) will be required. A fee estimate is an estimate only and is not a fixed quote.
All fee estimates, fixed quotes, and fee caps which we provide you or agree to, are subject to the amount of work on which we based the estimate, quote or cap not changing. We will advise you as soon as practicable after there is a significant change to any previous fee estimate, fee cap or fixed quote provided to or agreed with you.
We may increase our fee estimates, fixed quotes or fee caps, if we are required to undertake Additional Services beyond the work which we originally contemplated (Additional Services). Additional Services may, without limitation, arise because:
a) you do not give us clear and timely information or your instructions or information changes;
b) we are required to prepare multiple drafts of documents or forms beyond those initially contemplated;
c) you request face to face meetings or other attendances (other than those meetings or attendances priced into any fee estimate);
d) new facts become evident we progress with your affairs which result in Additional Services being required;
e) any other event or act of a third party beyond our reasonable control arises, which results in Additional Services being required; and/or
f) you ask us to undertake Additional Services which are not covered in our agreed scope of work.
You acknowledge and agree any Additional Services we provide are subject to these Standard Terms. You further agree that unless we agree otherwise in writing, you agree that we may charge you on an hourly basis for all Additional Services which we are required to undertake, and our fee estimate, fee cap or fixed quote will be deemed to have increased to take into account Additional Services.
Where we provide you Additional Services, or you otherwise request us to undertake services which are outside of the agreed scope of works, we may request you to enter into a separate Engagement Letter, or otherwise issue you with an updated Engagement Letter (in whole or in part) (Updated Engagement Letter). You acknowledge you will be bound by the Updated Engagement Letter by signing and returning a copy of it to us, if we provide you services, or if you give instructions to us after the date of the Updated Engagement Letter.
You will be required to pay such amounts as are required for expenses we expect to incur on your behalf plus any goods and services tax (GST) that may be payable. Without limitation, these expenses may include Third Party Consultant fees and XERO subscription charges.
You authorise us to incur all necessary and proper disbursements on your behalf. We will ask for your further approval before incurring any unusual or extraordinary expenses on your behalf.
5. Third Party Consultants
We may need to engage on your behalf third party consultants or professionals to provide specialist advice or services (Third Party Consultants).
Any fee estimate, fee cap or fixed fee quote, unless expressly specified to the contrary in Schedule 2 Engagement Letter, does not include fees for engaging Third Party Consultants on your behalf.
Subject to your instruction, we may agree (in our sole discretion) to directly engage a Third Party Consultant on your behalf (but we are not obliged to do so). If we do, we will provide you with a statement setting out the details of this person's fee before incurring the expense. We may also decline to directly engage any Third Party Consultant and request that you sign up directly with the Third Party Consultant as their client.
The forgoing shall not apply to third party whom we engage to assist us, as described in paragraph 2 above.
6. Third party payors and guarantors
a) If we separately agree with you that a third party may pay your professional costs, then:
i. you agree that we may provide a copy of our Agreement to the third party payor, together with any update we provide you in relation to your professional costs, or increased fee estimate, fee cap or fixed quote.
ii. Until the third party payor pays your professional costs to us in full, you remain principally liable and responsible for payment of your professional costs.
b) If you are a Company or other corporate entity, we may in our sole discretion require a director or other person to enter a deed of guarantee and indemnity in our favour (Deed) and you agree that we may provide a copy of our Agreement to the guarantor. Where entered, the Deed will continue until such time we provide a letter of release to the relevant guarantor.
7. Our role
Our services will be conducted in accordance with the relevant professional and ethical standards which may include those issued by the Accounting Professional & Ethical Standards Board Limited (APESB) (including APES 110 Code of Ethics for Professional Accountants (including Independence Standards). Whilst we will endeavour to provide you with commercially sound solutions, we only provide accounting and taxation advice. It may be necessary for you to engage other specialist consultants or professionals such as lawyers or auditors to address certain aspects of your affairs. If you require such services, you acknowledge will be required to engage with a Third Party Consultant.
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.
8. Services we do not provide
The extent of our procedures and services will be limited exclusively for this purpose only and no audit or review will be performed. We will not accept any instruction or engagement to conduct a statutory audit of the financial records of any of your entities and we will not express an auditor’s opinion as to the truth and fairness of the financial statements. Therefore, our engagement will not disclose fraud, defalcations or other irregularities which may have arisen. However, any material weaknesses in your accounting or internal control systems which come to our notice will be drawn to your attention. If you require auditing or review services, you acknowledge you will be required to engage with a Third Party Consultant.
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.
9. Conflicts of Interest
We will inform you if we become aware of any conflict of interest in our relationship with you (including between the various persons set out in our Engagement Letter) or in our relationship with you and another client. If we identify a potential or actual conflict, we may write to you advising you of the conflict. If we do so, you acknowledge and agree you may seek independent legal advice on the actual or potential conflict before we commence (or continue to provide) services.
Where conflicts are identified which cannot be managed in a way that protects your interests then we will be unable to provide further services to some or all of the persons to whom this engagement applies. If this arises, we may terminate our engagement with you.
We may act for other clients whose interests are not the same as or are averse to yours, subject to our obligations of conflicts of interest and confidentiality.
10. Your general obligations and responsibilities
Each client named in Schedule 1 of our Engagement Letter acknowledges and agrees:
a) it is responsible for the accuracy, reliability and completeness of the particulars and information provided to us in relation to our services. Your failure to do this may result in incorrect advice or incomplete or incorrect forms being completed (and potentially lodged);
b) it or its staff are responsible for maintaining and regularly balancing all books of accounts, and the maintenance of an adequate accounting and internal control systems;
c) any advice given to you by us is only an opinion based on our knowledge of your circumstances and is based on the information you provide us;
d) it is responsible for ensuring that its business and employment activities (as applicable) are conducted in accordance with applicable laws and regulations;
e) it is responsible for identifying and addressing any non-compliance with relevant laws and regulations caused by a director, employee, or consultant of the client entity;
f) it is, as a taxpayer responsible under self-assessment laws to keep full and proper records to facilitate the preparation of a correct tax returns. Those responsibilities include that the taxpayer is responsible for keep such records for five (5) years.
We require you to, and each client agrees to:
g) provide full, reliable, and complete information and accounting records to us which are relevant to its engagement; and
h) co-operate in with us and do all that we reasonably request in a timely manner (which includes providing us any information require to verify you identify for the purpose of anti-money laundering laws).
If you fail to comply with any of these conditions (or fail to meet any other obligation in our Agreement), we may terminate this Agreement and our provision of services to you, by advising you of the termination in writing. Alternatively, we may increase any fee estimate, fixed fee quote or fee cap to take into account any Additional Services we are required to undertake as a result of your default. You also acknowledge and agree that if you fail to provide us information, we reasonably request from you, it may impact on our ability to meet any agreed timeframe, and that we will not be liable for any loss suffered by you due to your failure to provide us such information.
11. Your general tax obligations
Each client further acknowledges:
a) that whilst the Commissioner of Taxation will accept claims made by a taxpayer in an income tax return and issue a notice of assessment, usually without adjustment, the return may be subject to later review. Under the taxation law such a review may take place within a period of up to four (4) years after tax becomes due and payable under the assessment. Furthermore, where there is fraud or evasion there is no time limit on amending the assessment. Accordingly, each client acknowledges and agrees that they must check the return before it is signed to ensure that the information in the return is accurate;
b) where the application of a taxation law to your circumstances is uncertain you acknowledge you also have the right to request a private ruling which will set out the Commissioner’s opinion about the way a taxation law applies, or would apply, to you in those circumstances. In such instances, you must provide a description of all the facts (with supporting documentation) that are relevant to your scheme or circumstances in your private ruling application. If there is any material difference between the facts set out in the ruling and what you actually do the private ruling is ineffective; and
c) if you rely on a private ruling you have received, the Commissioner must administer the law in the way set out in the ruling, unless it is found to be incorrect and applying the law correctly would lead to a better outcome for you. Where you disagree with the decision in the private ruling you can lodge an objection against the ruling if it relates to income tax, fuel tax credit or fringe benefits tax. Your time limits in lodging an objection will depend on whether you are issued an assessment for the matter (or period) covered by the private ruling.
12. Our accounts
Our accounts will be sent to you by post or by email (to your usual email address) and are payable as follows:
a) For annual engagements – the total annual professional cost estimate is payable in arrears in 12 equal monthly instalments and within 7 days of invoice, by way of direct debit from your nominated account (unless another payment method is agreed in writing by us);
b) For ad hoc services – the total professional fee estimate is payable within seven (7) days of receipt of invoice. Where set out in our Engagement Letter, we may require you to pay a deposit or that you pay your account in full before we commence work.
c) For corporate secretarial services – associated fees are payable immediately on receipt of invoice. We require such accounts to be paid in full before we commence work and lodge the relevant forms.
In the case of ad hoc or secretarial services, you acknowledge we may send you an account at multiple times during a calendar month, to reflect various stages of work completed.
Unless we agree otherwise, where more than one client entity is included in our Letter of Engagement, you acknowledge and agree we will issue one invoice only to your nominated billing entity, and that entity will be responsible for paying us via direct debit (to the extent applicable). The nominated billing entity may be changed by notice to us signed by all clients.
Where you elect to pay us by direct debit, you agree to complete our direct debit form, which will be sent to you as part of our onboarding process. Additional terms and conditions as set out in our direct debit request will apply.
13. What can happen if you don’t pay our account
Without limiting our rights at law or in these Standard Terms, if you do not pay our account by the due date, or if we reasonably suspect that you will not pay our professional costs, we may stop work (or not commence work) until we are paid. If the account continues to remain unpaid, we may cease to provide you services and terminate our engagement.
If you do not pay our account, we may also (without limiting our rights) be entitled to exercise a legal right known as a " lien". Where permitted by law or regulation, the lien allows us to retain your documents until our outstanding professional costs are paid in full.
If our invoice is left unpaid for a significant amount of time (as determined by us in our sole discretion), and we have had no satisfactory correspondence from you, we may refer your invoice to a debt collection agency and/or solicitor (and we reserve the right to charge you for any costs incurred by us).
14. If you have a concern about our professional costs
If you have any concerns about our professional costs, or have trouble paying your account, please do not hesitate to contact us. In many instances, we may be happy to assist by developing a payment plan or helping in another way (but we are not obliged to).
15. Interest on unpaid accounts
If an account remains unpaid thirty (30) days after you receive it, we may charge you interest at a rate not exceeding the Cash Rate Target, as fixed by the Reserve Bank of Australia, plus 5 percent, at the date the invoice is issued.
You may end our engagement with two  weeks written notice to us at any time during the Term for any reason.
We may terminate our engagement with you for several reasons, including, without limitation:
a) for convenience;
b) you fail to pay our professional costs by the date they are due;
c) if you breach these Standard Terms;
d) in the event of conflict of interest; or
e) if you fail to provide us with any information we request, or if you provide us with information which is materially false or incomplete.
We may terminate our agreement with you in relation to a task, or terminate all engagements we are undertaking for you, at any time. We will provide you with written notice if we intend to cease providing services to you and our engagement(s) will end on the date of the notice, or other date specified in the notice.
17. What happens on termination
Where this agreement terminates for any reason:
a) you will receive a final account which will include all outstanding professional costs;
b) you must pay our professional costs up until the date when we cease to act (as described further below); and
c) subject to applicable laws, we will not incur any liability as a result, and we retain the right to keep your documents until we are paid.
18. What you must pay us on termination
Where our Agreement is terminated by either party for any reason:
a) you must pay our professional costs up until that time (including any work in progress which we are yet to invoice (WIP));
b) where we have provided you with a fixed quote or you pay us annually by way of monthly instalments, then to the extent permitted by law:
i. if our professional costs billed as at the date of termination are less than our WIP, you agree to pay us our estimate of the portion of the fixed costs or monthly instalments representing the work we have undertaken for you until the date our engagement ceases; and
ii. if on the date of termination, you have paid us an amount greater than our WIP, you agree we may keep the difference as a genuine estimate of loss arising from your early termination, except where you terminate for cause.
You agree that the method of calculating the amounts payable in (a) and (b) above will be solely determined by us in our sole discretion, and we may determine this with reference to our normally hourly fees as evidenced by any time sheets or other written evidence we keep of the work performed.
19. Trust Accounts
From time to time we and at our discretion 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 (Letter of Authority). If our engagement involves the use of trust monies, we will manage those funds in accordance with applicable industry standards and as authorised by you (including as set out in any Letter of Authority).
You agree to indemnify, defend, and hold harmless JMP Accountants, its officers, directors, employees, agents, and consultants (Indemnified Parties) from and against all claims actions, losses, expenses, damages, and costs, (including reasonable lawyer’s fees), suffered by an Indemnified party resulting from you, your directors, employees, or agents breach of:
a. applicable laws (including without limitation laws relating to tax and privacy); and
b. this Agreement.
except to the extent such loss or damage was directly caused by an Indemnified Party.
21. Limitations of Liability
We participate in the CPA Australia Professional Standards Scheme which may limit our liability to you in a cause of action. For the purposes of the scheme, we make the following statement: “Liability limited by a scheme approved under Professional Standards Legislation”.
Further information on the scheme is available at: psc.gov.au or https://www.cpaaustralia.com.au/.
Subject to non-exclusion provisions in clause 26 the maximum liability of JMP Accountants for any and all breaches of our Agreement to you, including in relation to any negligence, will not exceed the amount of the professional fees paid to us by you in the prior 12 months before the date of claim.
22. Privacy and Personal Information
23. Confidential Information
Any information (including Personal Information) acquired by us during our engagement, including any information relating to your affairs whether it belongs to you or not or is provided by you or not, is subject to strict duties of confidentiality. Your confidential information will not be disclosed by us to other parties except:
a) as reasonably required for us to perform our services;
b) with your express consent (including under these Standard Terms);
d) as required or allowed by law, regulation or under codes of conduct (including APES), including if we determine that disclosure of any non-compliance or suspected non-compliance with relevant laws and regulations (NOCLAR) to an appropriate authority or auditor is an appropriate course of action in the circumstances.
You expressly acknowledge we may disclose your information, documents, and files (including Personal Information):
a) where our files are subject to review as part of the quality control review program of CPA Australia and/or Chartered Accountants Australia New Zealand which monitors compliance with professional standards by its members;
b) to any contractor or consultant, we engage as part of the services we provide you as set out in clause 2 (which may include bookkeepers or other support service providers situated overseas);
c) if you direct us to use a Third Party Consultant (regardless of whether such person is engaged directly by us or you) as set out in clause 5; or
and in such circumstances, you consent to us disclosing your information (including Personal Information) to the relevant review body, third party and their representatives (as applicable).
You further agree that where Schedule 1 Engagement Letter names more than one client, that we may disclose and discuss the personal and confidential information belonging to one client with another named client. If you do not agree to this term, then you must advise us, and we will require each client to enter into a separate engagement letter.
24. File storage, archiving and destruction
Your files will be archived electronically at the completion of our engagement and held for a period of 7 years. At the expiration of the 7 years, your files will be destroyed. You may however before the expiration of the 7 year period, write to us and request that we deliver any documents to you or a person you nominate in writing to us. You consent to us charging a reasonable fee (as determined by us) for each occasion on which you require us to store, retrieve or re-archive your documents outside our normal file processes. Delivery of documents to you under this clause is subject to you first paying all outstanding accounts.
25. Intellectual Property
All original documents obtained from you arising from the engagement shall remain your property. Our engagement will also result in the production of electronic documents or files, which will be supplied to you, such as income tax returns or financial statements. Ownership of these documents will vest in you. However, subject to applicable laws, we reserve the right to make a reasonable number of copies of the original documents and other materials, or files produced during our engagement for our records.
You agree that JMP Accountants retains all copyright in all other materials or documents produced by us for your use and benefit. These documents and materials must not be reproduced or used for any purpose other than that for which they have been provided to you without the written consent of a director of JMP Accountants.
(Non-exclusion) Any of the terms and conditions set out in our Agreement with you which limit or exclude any term, condition or warranty, express or implied, or the liability of JMP Accountants will apply to the extent permitted by law and will not be construed as excluding, qualifying or limiting your statutory rights or remedies (including under the Australian Consumer Law or under Professional Standards Legislation) arising by virtue of the breach of any implied term where such exclusion, qualification or limitation would be prohibited by legislation.
(Waiver) No party may rely on the words or conduct of any other party as being a waiver of any right, power or remedy arising under or in connection with this Agreement unless the other party or parties expressly grant a waiver of the right, power, or remedy. Any waiver must be in writing, signed by the party granting the waiver and is only effective to the extent set out in that waiver.
(Entire Agreement) This Agreement (including any document incorporated by reference) constitutes the whole agreement between the parties and supersede all prior discussions and agreements between them.
(Relationship) Nothing in our Agreement with you shall be taken to constitute an agency, partnership, joint venture or employer relationship.
(Amendment) We may amend our Standard Terms or any other term of our Engagement Letter from time to time by notifying you in writing where we consider it necessary or appropriate to do so. If you do not accept an amendment, you must notify us promptly in which case you may terminate our engagement in accordance with clause 16.
(Assignment) We may assign, novate, or otherwise transfer this Agreement provided you are notified of the transfer within a reasonable time after the event. You may only transfer, novate or assign this Agreement with our prior consent (which shall not be unreasonably withheld).
(Jurisdiction) The laws of Victoria shall apply to our Agreement we and you both agree to submit to the non-exclusive jurisdiction of the courts of that State.
(Definitions) In these standard terms the following words have their corresponding meaning:
Agreement means jointly our Engagement Letter and our Standard Terms.
Engagement Letter or Letter means our letter of engagement (including the schedules, as updated from time to time).
Guarantor means the person who enters a deed of guarantee as contemplated by these Standard Terms.
Standard Terms mean these standard terms.
Term has the meaning given in Schedule 2 of our Engagement Letter.
Personal Information has the meaning specified in the Privacy Act.