Terms and Conditions
LKN ACCOUNTING GROUP PTY LTD TERMS AND CONDITIONS
“Agreement” refers to any contract or agreement, whether formal or informal, written, oral or partly written and partly oral, formed between the Customer and the Company.
‘Attachment’ has the same meaning as it is given in section 19 of the Personal Property Securities Act 2009 (Cth).
‘Australian Consumer Law’ means the Australian Consumer Law set out in the Competition and Consumer Act 2010 (Cth), and all other relevant legislation and regulations.
“Company” refers to LKN Accounting Group Pty Ltd.
“Customer” refers to the individual, business, partnership or company entering into an Agreement with the Company and includes that individual’s, business’s, partnership’s or company’s successors and assigns.
‘Notice’ refers to a notice in accordance with clause 23.
‘Price’ has the meaning stated in clause 5.
‘Service’ refers to the provision of any service by the Company to Customer pursuant to the Agreement.
‘Works’ refers to the provision of Services.
2.1. These Terms and Conditions apply to the Agreement between LKN Accounting Group Pty Ltd (“Company”) and the Customer and are to be read in conjunction with any Agreement between the parties.
3.1. Any Agreement between the Customer and the Company shall be upon these Terms and Conditions and these shall operate to the exclusion of any terms and conditions to the contrary effect expressed in any other documentation and shall supersede all prior agreements.
3.2. The continued operation of these Terms and Conditions shall not be affected by any repudiation of any Agreement or transaction relating to the supply of Services between the Company and the Customer.
3.3. The Agreement is accepted by the Company on the basis that the Agreement constitutes the entire agreement between the Customer and the Company in connection with the supply of Services.
3.4. Acts and omissions (including, without limitation, in relation to the placement or alteration of the Agreement) of the Customer’s directors, employees, former directors and/or employees, contractors (except the Company), agents and any other person who purports to act on behalf of the Customer, shall be treated as the Customer’s acts and omissions of its directors, employees, former directors and/or employees, contractors (except the Company), agents and any other person who purports to act on behalf of the Customer, even if they act outside their authority.
3.5. Clause 3 does not prevent the Agreement being varied in accordance with clause 12.
3.6. To the fullest extent permitted by law any prior representations, agreements and arrangements, including representations as to the suitability of the Services, and any descriptions, illustrations and material contained in any advertisement, website, catalogue, price list or brochure are
excluded from, and do not form part of, the Agreement, unless specifically stated in the Agreement to the contrary.
3.7. All specifications and particulars of the Services are approximate only. Unless the accuracy of such specifications and particulars of the Services has been confirmed in writing in respect of a particular Agreement, the Customer cannot claim against the Company for any deviation in such specifications or particulars of the Services.
4.1. Any quotations given do not involve any obligations by the Company.
5. PRICE AND PAYMENT
5.1. The Customer agrees to accept and pay the Price for the Services in accordance with these Terms and Conditions. The Customer shall pay to the Company the Price specified by the Company in respect of the Services supplied. Time of payment is of the essence of the Agreement. All payments shall be made on or before the due date as stated in the Agreement. 5.3. Where the Customer is a company the Customer’s directors personally guarantee the payment of all costs and expenses owing to the Company by the Customer.
5.4. The Customer agrees to accept and pay to the Company a cancellation fee of $89 or more if the Company has started preparing the Customer’s income tax return and the Customer decides to cancel the lodgement with the Australian Taxation Office.
5.5. The Customer agrees that, if the Australian Taxation Office takes longer than 2 weeks to process the Customer’s income tax return or if the Customer’s tax return is offset to any government debt, the Company may automatically direct debit the Price from the Customer’s bank account without notice to the Customer.
5.6. The Customer agrees to pay the Price for the Services to the Company even if the Customer fails to receive a tax return from the Australian Taxation Office. The Customer agrees that the Company may automatically direct debit the Price from the Customer’s bank account without notice to the Customer even if the Customer does not receive a tax return from the Australian Taxation Office.
6.1. The Company may grant the Customer an advance option where the Company will pay out a portion of the Customer’s tax return on the same day or after the Customer’s tax return is lodged. The advance may be received by the Customer into its nominated account within one hour of the Customer signing off on its tax return.
6.2. Where the Company has granted the Customer the advance option in accordance with clause 6.1., the Customer agrees that the advance amount paid by the Company will be adjusted against the Customer’s actual tax return released by the Australian Taxation Office. The Customer acknowledges that, once the actual tax return is released by the Australian Taxation Office, the Customer will receive the balance of the actual tax return less the advance amount, the Price specified by the Company in respect of the Services supplied and the fee specified in clause 6.3.
6.3. Where the Company has granted the Customer the advance option in accordance with clause 6.1., the Customer agrees to accept and pay the Company’s fee for granting the advance option, which will be equal to or greater than 20% of the Price specified by the Company in respect of the Services supplied (“the Advance Fee”), in addition to paying Price specified by the Company in respect of the Services supplied. The Advance Fee will be deducted from the advance prior to it being released to the Customer.
6.4. Where the Company has granted the Customer the advance option in accordance with clause 6.1., the Customer agrees to sign a form authorising the Company to direct debit the Customer’s bank account prior to the Company releasing the advance specified in clause 6.1. above.
6.5. Where the Customer changes its account details with the Australian Taxation Office, the Customer agrees that the Company may automatically direct debit the amount advanced in accordance with clause 6.1., the Price and the Advance Fee from the Customer’s bank account without notice to the Customer.
7. COSTS RECOVERABLE
7.1. Any request by the Customer to cancel his or her request to the Company to:
7.1.1. lodge a tax return prior to the tax return being lodged; or
7.1.2. provide any other Service supplied
must be made in writing.
7.2. The Company may, at its discretion, accept or reject the Customer’s request under clause 7.1 and specify the terms and conditions and reasonable charges upon which such request may be agreed to, which may include charging the Customer a “booking fee” equivalent to 75% or more of the Company’s fee for lodging the tax return.
7.3. The Customer agrees that the Company may, at its discretion, set up an automatic direct debit against any of the Customer’s bank accounts to recover all monies due to the Company under the Agreement if the Customer’s tax return is offset to any government debt or if the Customer’s tax return is taking more than 2 weeks to be processed by the Australian Taxation Office.
7.4. Should the Customer default in the payment of any monies due under the Agreement, then all monies due to the Company shall immediately become due and payable and shall be paid by the Customer within 7 days of the date of demand.
7.5. The Company reserves the right to charge interest calculated at 10% per annum on the balance of all overdue accounts from the date of due payment until the date of actual payment.
7.6. Any expenses, costs or disbursements, including debt collection agency fees, commission and any fees paid to the Company’s solicitors (on an indemnity basis), incurred by the Company in recovering any outstanding monies shall be paid by the Customer on an indemnity basis.
7.7. The Customer hereby charges and mortgages in favour of the Company to secure the repayment of the debt and all monies which may become owing by the Customer to the Company hereunder all the Customer’s estate and interest in all property both real and personal, present and future.
8. LIABILITY FOR ADVICE
8.1. The Company is only liable for expert advice which is:
8.1.1. Within the scope of the Agreement;
8.1.2. In writing; and
8.1.3. Accompanied by a written confirmation stating that the Company is qualified to give the advice.
8.2. The Customer acknowledges that the Company is not able to provide expert advice outside the scope of the Agreement.
8.3. The Company is not liable for any expert advice or assistance given in good faith, but which it is not contractually bound to provide, and which does not fit the criteria set out in clause 10.1.
9. NO LIABILITY FOR SERVICES PROVIDED BY THIRD PARTIES
9.1. The Customer acknowledges that the Company is not liable for any damage or defects attributable to the provision of Services by a third party.
9.2. The Company accepts no responsibility for any third party’s warranty or claim.
9.3. This clause 9 survives the termination or natural expiration of the Agreement.
10.1. If the Customer is a consumer for the purposes of applicable State or Federal law in Australia, with the consequence that certain guarantees, rights and remedies are conferred on the Customer which cannot be excluded, restricted or modified except in limited circumstances, then to the maximum extent permitted by law, our liability to you is limited at our option to:
10.1.1. in the case of services:
10.1.1.1. resupply of the services; or
10.1.1.2. payment of the cost of resupplying the services.
10.2. Unless otherwise agreed in writing by the parties, this warranty is restricted to the resupply or payment of the cost of resupplying the Services showing defects at the Company’s option, free of charge, provided the Customer reports the defect immediately in writing.
10.3. Where a third party service has been provided to the Customer, in the case of defects, the Company will be obliged to no more than the rights it can assert with this third party.
10.4. Except as provided in these Terms and Conditions, all express and implied warranties, guaranties and conditions under statute or general law as to merchantability, description, quality, suitability or fitness of the Services for any purpose or otherwise are expressly excluded. The Company is not liable for injury, loss or damage or for consequential loss or damage of any kind arising out of the provision of the Services or arising out of the Company’s negligence or in any way whatsoever.
11. NO WARRANTY
11.1. The Company shall not be liable to the other party in contract, tort, warranty, strict liability, or any other legal theory for any indirect, consequential, incidental, punitive or exemplary damages, or for any claim for loss of profits.
11.2. All warranties implied by the Competition and Consumer Act 2010 (Cth) are hereby expressly excluded.
11.3. The Company makes no express warranties to the Customer, except those expressly set out in these Terms and Conditions.
11.4. The Company will not be liable in any circumstances for any loss or damage whatsoever allegedly incurred and arising out of any:
11.4.1. Conditions, warranties, and terms implied by statute or general law or custom except any implied condition or warranty the exclusion of which would contravene any statute or cause this clause to be void (“Non-Excludable Condition”);
11.4.2. Alleged liability to the Customer in contract for consequential or indirect damages arising out of or in connection with these Terms and Conditions even if the Company knew they were possible or they were otherwise unforeseeable, including, without limitation, lost profits and damages suffered as a result of claims by a third party; and
11.4.3. Claims by the Customer in negligence for acts or omissions of the Company or its employees, agents, or contractors arising out of or in connection with these Terms and Conditions.
11.5. The Company’s liability for breach of any express provision of these Terms and Conditions or any Non-Excludable Condition (except a Non-Excludable Condition referred to above or one implied by section 64 of the Australian Consumer Law) is limited at the Company’s option to one of resupplying the Services in respect of which the breach occurred.
11.6. On request by the Customer, the Company will refund any amount paid for the Services in respect of which the breach occurred, rather than the remedy referred to above.
11.7. If the Company provides to a Customer an estimated amount the Customer can expect to receive on their tax return, that amount is an estimate only. If the actual amount the Customer receives from their tax return is different to the estimated amount, no liability for the difference shall rest with the Company.
12.1. Any variation to the Agreement must be in agreed to in writing by both parties, confirming the precise scope of the variation or method of calculating the price. The Company reserves the right to revise and amend the price of the Works if there are any such variations.
12.2. Any variation made after the signing of the Agreement will incur an administration fee to be charged by the Company in addition to the costs of the variation separately charged.
12.3. Where variation to the Agreement is necessary:
12.3.1. To comply with any written direction lawfully given by a person acting under a written law; or
12.3.2. By virtue of circumstances that could not reasonably have been foreseen by the Company at the time when the Agreement was entered into,
the Company shall be entitled to payment for such variation provided that before carrying out the Works in relation to the variation, the Company gives to the Customer a statement setting out the reason for, and the cost to be incurred on account of the variation, together with a copy of any written direction referred to in clause 12.3.1.
12.4. From time to time, the Company may review and amend the Terms and Conditions of the Agreement and the Customer shall be bound by any variation which shall apply to the supply of any Services following the effective date of the variation.
13. DATE OF WORKS
13.1. The Company will complete the Works by the date or dates specified by the Customer, but will not, unless agreed in writing, be held responsible for any loss or damage of any kind if Works are not completed by the agreed date or dates.
13.2. Any variation to the Works or any delay in payment may affect the anticipated completion date.
14. DELAYS AND EXTENSION OF TIME
14.1. Should the progress of the Works be delayed by any of the following causes or conditions resulting therefrom:
14.1.1. On account of any variation agreed upon in accordance with clause 12;
14.1.2. By a suspension of the Works under clause 15;
14.1.3. In consequence of proceedings taken or threatened by, or disputes with, third parties;
14.1.4. By reason of any civil commotion or third party delay affecting the Company’s provision of the Works;
14.1.5. Any act, default or omission on the part of the Customer;
14.1.6. By any other matter, cause or thing whatsoever beyond the control of the Company including unavailability of labour;
then in any such case, the Company shall be entitled to a fair and reasonable extension of time in which to complete the Works.
14.2. When the Customer becomes aware of any matters that are likely to result in a delay to the Works, the Customer is to notify the Company in writing of the nature and estimated extent of the delay.
14.3. Upon receipt of the Customer’s notice above, or when the Company becomes aware of any matters that are likely to result in a delay to the Works, the Company will notify the Customer of the estimated impact of the delay on:
14.3.1. The time for completing the Works; and
14.3.2. The estimated extra costs associated with the delay.
14.4. Except in the case of clause 14.1.3, the Company shall be entitled to be paid reasonable costs arising from any extension of time by the Customer.
15. SUSPENSION OF WORKS
15.1. Should the Customer fail to pay or cause to be paid the Price or any money due and owing under the Agreement or commit any other breach of the Agreement, the Company may, without, prejudice to the Company’s right terminate the Agreement, suspend the Works. If the Company suspends the Works it shall promptly give Notice of such suspension in writing to the Customer. The Company shall lift the suspension within 14 days of payment being made or the breach being remedied and the time in which to complete the Works shall be extended by the period equivalent to the number of days which the Works were suspended and any consequential delays.
15.2. The Company shall be entitled to be paid reasonable costs arising from any suspension of the Works plus an administration fee.
16.1. The parties agree not to commence proceedings in relation to any dispute arising in regard to the Agreement without first having regard to the procedure set out in this clause 16.
16.2. Should any dispute or difference arise between the Customer and the Company in connection with the Agreement, then:
16.2.1. The party that alleges they have suffered some loss or damage, or is otherwise aggrieved, shall serve the other party, by hand, pre-paid post or by e-mail, with a Notice of Dispute in writing adequately identifying and providing details of the dispute.
16.2.2. Within 7 days of receipt of the Notice of Dispute, the parties must meet and take reasonable steps to resolve the dispute.
16.2.3. If the dispute cannot be resolved within 7 days of the meeting between the parties, then the parties agree to submit the dispute to mediation, or some other form of alternative dispute resolution, before commencing legal proceedings.
16.3. In the event of a dispute, or where fees remain unpaid by the due date, the Company reserves the right to suspend provision of the Works until such time as the dispute is resolved or the fees are paid. Suspension of the Services will not affect your obligation to pay us for Works rendered to the date of suspension.
16.4. If the dispute is not resolved within 90 days of service of the Notice of Dispute (or any longer period as agreed to by the parties), either party who has complied with this clause may end the dispute resolution process by written notice to the other party and immediately thereafter commence court proceedings in relation to this dispute.
17. LIMITATION OF LIABILITY
17.1. The Company shall not be liable for any indirect or consequential loss, or for the loss to a Customer arising from third-party claims caused by errors in the Services provided by the Company.
17.2. Subject to all rights which are provided pursuant to legislation and which cannot be excluded by agreement, these Terms and Conditions constitute the entire agreement between the parties and all other terms, conditions and representations are hereby excluded.
18. FORCE MAJEURE
18.1. The Company will not be liable for any breach of the Agreement due to any matter or thing beyond the Company’s control. Furthermore, the Company is excused from performing any term, covenant or condition required by the Agreement during the time and to the extent that performance is prevented when such performance is prevented wholly or in part by circumstances beyond the Company’s control.
19. ASSIGNMENT AND SUBCONTRACTING
19.1. The Company may assign, sub-contract or sub-let this Agreement or any part of the Works without seeking the consent of the Customer.
20.1. Any waiver by the Company must be in writing signed by the Company.
20.2. Failure by the Company to enforce any right or remedy is not a waiver of any right or remedy, nor a waiver in respect of a continuing breach.
21.1. If any provision contained in these Terms and Conditions is held by a court to be unlawful, invalid or unenforceable, the validity and enforceability of the remaining provisions in these Terms and Conditions are not affected.
22. GOVERNING LAW AND JURISDICTION
22.1. The Agreement is governed and is to be construed in accordance with the laws in force in the State of Western Australia.
22.2. The Agreement is subject to the exclusive jurisdiction of the courts of Western Australia.
23.1. Any Notice must be in writing and delivered by hand, sent by post, e-mail or facsimile as follows:
23.1.1. If the Company: to the registered office of the Company as per the Corporations Act 2001 (Cth).
23.1.2. If the Customer: as per the details provided in writing by the Customer to the Company or any registered office of the Customer, if the Customer is a registered business or operating under a registered business name or is a company.
23.2. A Notice is regarded as given by the sender and received by the addressee:
23.2.1. If the Notice is delivered by hand, when delivered to the Addressee;
23.2.2. If the Notice is sent by post, on the 5th business day following the date of postage or when delivered to the addressee, whichever occurs first;
23.2.3. If sent by facsimile, when the transmission is successfully completed (as reported by the sender’s machine), unless the addressee informs the sender that the transmission is illegible or incomplete by telephone or Notice within 2 hours of the transmission being received; and
23.2.4. If sent by electronic mail, when the addressee opens the message (as reported by the sender’s machine), unless the addressee informs the sender that the transmission is illegible or incomplete or corrupted by telephone or Notice within 2 hours of the transmission being received.
24.1. The Customer hereby agrees not to request the information referred to below or authorise the disclosure of such information without the prior written consent of the Company:
24.1.1. Copies of security agreements;
24.1.2. Statements setting out details of amounts secured, obligations secured, terms of payment or performance of obligation;
24.1.3. Approvals or corrections of amounts secured, obligations secured, terms of payment or performance of an obligation.
25. SECURITY TO THE COMPANY
25.1. The Customer agrees that the Company may place a lien over all of the Customer’s documents in its possession until the Price and all amounts owed by the Customer to the Company are paid to the Company.
25.2. As a separate and additional obligation under these Terms and Conditions, the Customer and directors of the Customer agree to charge in favour of the Company all of their property, real and personal, with the payment of the Price and all amounts owed by the Customer to the Company.
25.3. The Customer and directors of the Customer agree that the Company may lodge an absolute caveat or a subject to claim caveat as equitable chargee against any property owned by the Customer or directors of the Customer.
25.4. The Customer and directors of the Customer consent to the Company lodging a caveat against property owned by the Customer or directors of the Customer (as described in clause 25.3. above) and agree that if they contest the lodgement of the caveat the Company may demand from the Customer, who agrees to pay, all money due and payable by the Customer under the Agreement.
25.5. The costs of and incidental to the preparation, registration and withdrawal of the caveat will be borne by the Customer.
25.6. The Customer and directors of the Customer charge all of their assets, both fixed and moveable with the due and punctual observance and performance of the Customer’s covenants under the Agreement and with the due and punctual payment to the Company of the Price and all amounts owed by the Customer to the Company.
25.7. If requested by the Company, the Customer agrees to immediately, at its own cost and expense, stamp and register a debenture charge and to ensure the charge will not be rendered void under the Corporations Law or as against a liquidator or judgment creditor.
26. ACKNOWLEDGEMENT OF THESE TERMS AND CONDITIONS
The Customer hereby acknowledges receipt of these Terms and Conditions and agrees to be bound by them. The Customer accepts these Terms and Conditions in acknowledgement that they are legally binding and presently enforceable. The Customer further acknowledges that it has had the opportunity of obtaining independent legal advice and that it understands the Terms and Conditions outlined above.