These Terms and Conditions, together with the Engagement Letter, apply to all work performed by The Startup Nerds Pty Ltd, trading as TSN Advisory (“TSN”), for the Client with respect to the Engagement. They apply to Engagement Letters commencing from 1 January 2023.
Where the Services include tax agent services, those services are provided by The Startup Nerds Tax Pty Ltd, trading as TSN Tax, Registered Tax Agent 26259986, L1, Suite 5, 50 New Street, Ringwood, VIC, 3134. For those services, references to TSN in these Terms and Conditions include TSN Tax.
1. Definitions
Capitalised terms used in these Terms and Conditions are defined in clause 22.
2. Authorisations
Each of TSN and the Client confirms that it has obtained all necessary authorisations to enter into and perform the Agreement.
3. Performance of the Services
3.1. The scope of the Services is limited to the work specified in the Engagement Letter.
3.2. TSN may have to rely on external information or public records to carry out the Services. TSN has no liability for any loss or damage caused by errors or omissions in external information or public records.
3.3. Changes in the law may take place before advice provided by TSN is acted upon or may be retrospective in effect. Unless specifically stated in the Engagement Letter, TSN has no responsibility for informing the Client of changes in the law or interpretations affecting advice previously given by TSN.
3.4. Some of the matters on which TSN may be asked to advise the Client may have implications (including in relation to tax) for persons or entities other than the Client. Unless advising on such implications is expressly included in the Services, TSN has no liability to the Client or any person or entity in respect of those implications, and the Client indemnifies TSN against any claim by any such persons or entities in this regard.
3.5. The Services are not legal services and do not constitute legal advice. We recommend you seek legal advice.
3.6. The Services are not financial advice or financial product advice. TSN does not provide financial advice and recommends that you contact a suitably qualified and licensed financial planner if you require financial advice.
3.7. TSN will not audit or independently verify the accounting records or information that you have provided in connection with the Services. TSN’s work will be based on documents and information provided to it, or obtained by it, in connection with the Services. TSN will not verify the accuracy and completeness of such documentation or information.
4. Client’s disclosure and record keeping obligations
4.1. The Client is required by law to keep full and accurate records relating to the Client’s tax affairs. The preparation of your income tax return does not constitute a prudential tax audit and cannot be relied upon as such. The onus is on you, the taxpayer, to self-assess and there are substantial penalties for incorrect returns. You should carefully review the income tax return to ensure that items shown are accurately stated so that amendments can be made for any incorrect matters.
4.2. It is the Client’s obligation to provide TSN with all information that the Client reasonably expects will be necessary to allow TSN to perform the Services in a timely manner or as requested. This includes providing accurate and complete responses to questions asked of the Client by TSN within a reasonable timeframe. Inaccurate, incomplete or late information could have a material effect on the Services and/or TSN’s conclusions and may result in additional fees. TSN will not verify the underlying accuracy or completeness of information provided to TSN by or on behalf of the Client.
4.3. The Client is also required to advise TSN on a timely basis if there are any changes to the Client’s circumstances that may be relevant to the performance of the Services. Specifically, if any subsequent event results in the information the Client provided to TSN being inaccurate, incomplete or misleading, the Client must advise TSN as soon as possible. TSN has no liability for its advice being inaccurate, incomplete or misleading as a result of it being based on inaccurate, incomplete or misleading information, or information not being provided to TSN on a timely basis.
4.4. The Client agrees that the performance of the Services is dependent on the performance of the Client’s obligations relating to disclosure and record keeping.
4.5. Australian taxation legislation contains specific provisions that may provide the Client with “safe harbours” from administrative penalties for incorrect or late lodgement of returns if, amongst other things, the Client gives TSN all relevant taxation information in a timely manner. Accordingly, it is to the Client’s advantage that all relevant information is disclosed to TSN, as any failure to provide this information may affect the Client’s ability to rely on the “safe harbour” provisions and will be taken into account in determining the extent to which TSN has discharged its obligations to the Client.
4.6. The Client is also required to advise TSN if the Client becomes aware of any conflict of interest or potential conflict of interest. Generally, a conflict of interest is any event which may result in TSN becoming unable to remain objective in the performance of its services to the Client. Examples include changes to the Client’s business circumstances, events affecting the Client’s family (for example, death or marriage breakdown) or a legal action commencing against the Client.
5. Client’s rights and obligations under the taxation laws
5.1. The Client has certain rights under taxation laws, including the right to seek a private ruling from the ATO or to appeal or object against a decision made by the Commissioner. As relevant, TSN will provide further information to the Client concerning the Client’s rights under Australian taxation laws during the Engagement.
5.2. The Client also has certain obligations under Australian taxation laws, such as the obligation to keep proper records and the obligation to lodge returns by the due date.
6. TSN’s obligation to comply with the law
6.1. TSN has a duty to act in the Client’s best interests. However, this duty is subject to an overriding obligation to comply with the law, even if that may require TSN to act in a manner that may be contrary to the Client’s interests. For example, TSN could not lodge an income tax return for the Client that TSN knew to be false in a material respect.
6.2. TSN also has an obligation to manage conflicts of interest as they arise, and has arrangements in place to do so. The effective operation of these arrangements depends, in part, on the Client complying with its obligation to disclose any potential conflicts of interest to TSN (see clause 4.6).
6.3. The Services will be based on the law, including Australian taxation law, in force, and the applicable practices of the ATO, at the date the Services are provided. It is the Client’s responsibility to seek updated advice if it intends to rely on TSN’s advice at a later stage. Australian taxation laws are often subject to frequent change and TSN’s advice will not be updated unless specifically requested by the Client at the time of the change in law or announced change in law.
7. Services solely for Client benefit
Unless expressly provided otherwise in the Engagement Letter, the Services are provided solely for the Client’s benefit and use. Except as required by law, the Client must not provide any documentation or deliverables in respect of the Services to any third party (including filing information containing or referring to any of TSN’s reports with regulators, or including TSN’s reports in any public document) without TSN’s prior written consent. TSN accepts no liability or responsibility to any third party in respect of the Services.
8. Confidentiality
8.1. Subject to clauses 8.2 and 8.3, neither TSN nor the Client may disclose Confidential Information about or belonging to the other without the other’s consent.
8.2. TSN may disclose Confidential Information to its officers, employees and subcontractors in relation to the provision of the Services, to assist in quality assurance reviews or for business purposes, and either party may disclose Confidential Information: (a) to its insurers or professional advisers, provided that the Confidential Information remains confidential; (b) if required to do so by law or by a regulatory authority, including under subpoena; or (c) if required for the proper performance of the Services.
8.3. TSN may cite the performance of the Services to third parties to promote the business carried on by TSN.
9. Privacy of personal information
9.1. In performing the Services, TSN agrees to comply with all applicable requirements of the Privacy Act and any other applicable legislation or privacy guidelines. See our Privacy Policy.
9.2. If the performance of the Services requires a third party to supply personal information to TSN at the Client’s request, the Client must ensure that the third party has satisfied the requirements of the Privacy Act and that the disclosure of that personal information to TSN is lawful.
9.3. If the Services require TSN to collect personal information from a third party, the Client must ensure that the collection complies with the Privacy Act, and do and be responsible for all things necessary (including obtaining appropriate consents) for TSN to collect that personal information.
10. Quality control
TSN may be subject to quality control review programs conducted by industry and professional bodies in Australia. The work TSN performs for the Client may be selected for review. The Client acknowledges that, if requested, TSN’s files relating to the Engagement will be made available to the examiners. If the Client objects to being included in any of these review processes, the Client must advise TSN in writing at the start of the Engagement and TSN will use its best endeavours to exclude the Engagement from such review.
11. Intellectual property
11.1. Unless otherwise specified in the Engagement Letter, Intellectual Property Rights in the Services remain the property of TSN.
11.2. Title to all Intellectual Property Rights in relation to the Client’s data remains the Client’s property. The Client grants TSN a licence to use, copy, transmit, store and back up the Client’s information and other data for the purposes of enabling the Client to access and use the Services and for any other purposes related to the provision of services to the Client. The Client’s access to data is contingent on full payment of the Fees.
11.3. The Client must retain original copies of all data provided to and by TSN. TSN does not give a warranty or undertaking that there will be no loss of data, and has no liability for any loss of client data.
11.4. Subject to clause 8, TSN will not be restricted by the Agreement from developing and using in the future any techniques, methodologies, ideas, concepts, information and general know-how developed in the course of providing the Services.
11.5. The Client must not use TSN’s logo on any website or in any public statement or document (including any filing with a regulator) without TSN’s prior written consent.
11.6. The working papers for the Engagement, including electronic documents and files, are TSN’s property and constitute Confidential Information of TSN.
12. Documents
12.1. At the end of the Engagement, TSN will keep the Client’s file and documents for the minimum period required by any relevant legislation.
12.2. If the Client becomes aware that any document relating to the Engagement is, or is reasonably likely to be, required as evidence in a legal proceeding, the Client must immediately advise TSN.
12.3. If TSN is given custody of any documents by or on behalf of the Client, including share registers or constitution documents, those documents will be retained during the Engagement (unless their earlier return is requested) and returned to the Client at the end of it unless separate arrangements have been made. TSN may retain copies of all such documents.
12.4. TSN reserves the right to exercise a lien over any documents and files belonging to the Client which may be in TSN’s possession.
12.5. All original documents obtained from the Client arising from the Engagement remain the Client’s property. However, TSN reserves the right to make a reasonable number of copies of the original documents for its records.
12.6. TSN may store your electronic documentation in a cloud-based storage platform managed by a third-party provider. You consent to data being stored on these online storage platforms. TSN will not be responsible or liable for any loss or damage arising from your information being stored on cloud-based storage platforms.
13. Electronic communications
13.1. TSN may communicate with the Client electronically. The Client consents to TSN sending electronic communications to the Client, including email.
13.2. Electronically transmitted information cannot be guaranteed to be secure or virus or error free and could be intercepted, corrupted, lost, destroyed, arrive late or incomplete, or otherwise be adversely affected or unsafe to use. TSN will not be liable to the Client for any error, omission or loss of confidentiality arising from or in connection with the electronic communication of information to the Client.
14. Limitation of liability
14.1. Liability limited by a scheme approved under Professional Standards Legislation. Further information on schemes is available from the Professional Standards Councils’ website: psc.gov.au.
14.2. To the extent permitted by law, TSN has no liability for any indirect, incidental or consequential expense, loss, damages or costs, loss of profits or revenue, business interruption, loss of data, or failure to realise anticipated savings or benefits whatsoever incurred by or awarded against the Client (whether or not TSN has been advised of the possibility of such expense, loss, damage or costs) arising in any way out of or in relation to the Services.
14.3. If the Client makes any claim against TSN for loss arising out of or in connection with the Services or the Agreement, liability for the Client’s loss and any amount the Client may recover will be apportioned having regard to the respective responsibility for the loss.
14.4. To the extent permitted by law, the Client is liable for and must indemnify and hold harmless TSN and its directors, employees and subcontractors from and against any liabilities, losses, claims, costs, damages or expenses, or actions that may be asserted by any third party, arising from the Client’s breach of the Agreement, any third-party claims arising out of or in relation to the provision of the Services, or any use by the Client of any deliverable under the Agreement, and must pay TSN on demand all costs and expenses (including legal fees on a solicitor/client basis) incurred by TSN in connection with any such action or claim.
14.5. TSN has not made any, and to the extent permitted by law TSN excludes all, warranties, conditions or guarantees of any nature in respect of the Services, the satisfactory conclusion of the Services, or the economic, financial or other results which the Client may experience as a result of the Services.
14.6. Where warranties, conditions, guarantees or other rights are implied in the Agreement or otherwise conferred by the Australian Consumer Law set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth) or other laws, and it is not lawful or possible to exclude them, they will apply to the Agreement only to the extent required by law. To the extent permitted by law, TSN limits its liability in respect of them to supplying the Services again or paying the cost of having the Services supplied again.
14.7. The Client agrees not to bring any claim (whether in contract, tort (including negligence) or otherwise) arising out of or in connection with the Services against any of TSN’s officers, employees or subcontractors personally. This does not limit or exclude any liability TSN may have for their acts or omissions. This clause is expressly for the benefit of TSN’s officers, employees and subcontractors, each of whom is entitled to rely on it as if they were a party to the Agreement.
15. Expenses
If TSN receives any notice or demand issued by any third party, including the Australian Securities and Investments Commission, the ATO, the ASX, any government statutory body or instrumentality, or any court or tribunal, in relation to or in connection with the Services, the Client must pay TSN’s reasonable professional costs and expenses (including solicitor/client expenses) in complying with or challenging that notice or demand, to the extent they are not recovered or recoverable from the party issuing it. TSN will notify the Client as soon as practicable (unless restricted by law) when it receives any such notice or demand.
16. Interest on unpaid costs
If the Client does not make any payment due to TSN under the Agreement by the due date, TSN may charge interest on the unpaid amount at the Australian Financial Markets Association bank bill swap (BBSW) rate quoted on Reuters page “BBSW” for bank bills of a tenor of 90 days plus 2% per annum. Interest accrues daily from the due date until actual payment of the overdue amount and compounds monthly. The Client must pay the interest together with the overdue amount.
17. GST
17.1. Words or expressions used in this clause that are defined in the GST Law have the same meaning given to them in that Act.
17.2. Unless otherwise stated, any amount specified in the Agreement as the consideration payable for any taxable supply does not include any GST payable in respect of that supply.
17.3. If a party makes a taxable supply under the Agreement (Supplier), the recipient of the taxable supply (Recipient) must also pay, in addition to the consideration for that supply, the amount of GST payable in respect of the taxable supply at the time the consideration is payable.
17.4. Despite clause 17.3, the Recipient is not obliged to pay any GST until the Supplier provides it with a valid tax invoice for the taxable supply.
17.5. If an adjustment event arises in relation to a taxable supply made under the Agreement, the amount paid or payable by the Recipient under clause 17.3 will be amended to reflect this, and a payment will be made by the Recipient to the Supplier or vice versa as the case may be.
17.6. If a third party makes a taxable supply and the Agreement requires a party (the payer) to pay for, reimburse or contribute to any expense or liability incurred by the other party to that third party for that taxable supply, the amount the payer must pay will be the amount of the expense or liability plus any GST payable on it, reduced by any input tax credit to which the other party is entitled.
18. Subcontractors
TSN reserves the right to engage subcontractors in the performance of the Services. Subject to any contrary provision in the Engagement Letter, TSN remains liable to the Client for any of the Services provided by its subcontractors.
19. Term and termination
19.1. The Agreement applies for the Term.
19.2. TSN may terminate the Agreement by notice in writing with immediate effect if: (a) the Client fails to provide TSN with clear or timely instructions to enable TSN to provide the Services; or (b) the Client fails to pay any money payable to TSN under the Agreement within 30 days of the due date.
19.3. Either party may terminate the Agreement by giving not less than 14 days’ notice in writing to the other party.
19.4. On termination or expiry of the Agreement, the Client must pay on demand all Fees and expenses payable for the Services provided up to the date of termination or expiry. If the Agreement has been terminated for cause, the Client must pay TSN’s reasonable costs and expenses incurred in connection with the termination.
19.5. Termination or expiry of the Agreement is without prejudice to any accrued rights of each party.
20. Fees
20.1. TSN may revise its fee scale from time to time. Rates quoted to you remain in force until the next 31 December or 30 June (whichever is sooner). TSN may increase its fees for any work performed after these dates, and reserves the right to change its rates outside these dates, which it will communicate directly to you.
20.2. You agree to pay fees for the Services, charged on an hourly basis or as a fixed price (as outlined in the Engagement Letter or Proposal). GST at the prevailing rate will be added to and forms part of TSN’s fees (where applicable). It is a fundamental term of this Agreement that we look to you as the responsible party for payment of our fees and expenses, even if part of them relates to Services provided to other entities or individuals.
20.3. Your obligation to pay TSN’s fees and expenses arises at the start of the Agreement, after which you will be issued with invoices. Fees and expenses will be invoiced as set out in the Engagement Letter (or Proposal) and are payable within 14 days of the invoice date. Where an amount for GST is stated as a component of the fees and expenses, TSN’s invoice will be a compliant tax invoice for GST purposes.
20.4. If you pay fees by monthly instalment and terminate the Services before the end of the period covered by the instalments, you agree to pay TSN an amount equal to the actual time spent providing the Services (charged at our normal hourly rates) less any instalments paid during that period. If you have paid instalments greater than the value of the actual time spent, no refunds are payable.
20.5. TSN may charge an additional fee of up to 1.75% on top of the fee for Services (plus GST) if you pay by credit card.
21. General
21.1. (Relationship with other clients) TSN provides Services to other clients, some of whom may be in competition with the Client or have interests which conflict with the Client’s own. TSN will not be prevented or restricted by its relationship with the Client under the Agreement from providing Services to other clients.
21.2. (TSN’s relationship with the Client) The Client acknowledges and agrees that TSN’s relationship with the Client is that of an independent contractor. Neither TSN nor the Client may claim or represent to any third party that it is an agent of, or in partnership with, the other party, and each party acknowledges that it has no power or authority to bind the other in respect of any matter.
21.3. (Waiver) A failure or delay by a party in exercising a power or right under the Agreement does not operate as a waiver of that power or right, nor does a single or partial exercise of a power or right prevent any further exercise of it. A waiver of a power or right does not affect any other provision of the Agreement.
21.4. (Governing law) The Agreement is governed by the laws in force in Western Australia, and the parties irrevocably submit to the exclusive jurisdiction of the courts of that State and any courts competent to hear appeals from them. The parties irrevocably waive any right to object to any action being brought in an inconvenient forum or to claim that those courts do not have jurisdiction.
21.5. (Force majeure) Neither TSN nor the Client will be liable to the other for any delay or failure to fulfil their obligations (excluding payment obligations) under the Agreement to the extent it arises from causes beyond their control, including fire, flood, acts of God, acts or regulations of any governmental authority, war, riot, terrorist activities, strikes, lockouts, industrial disputes, incorrect email addresses, internet failures, computer or other equipment failures, or non-performance of third parties.
21.6. (Assignment) The Client may not transfer, charge or otherwise deal with its rights or obligations under the Agreement without TSN’s prior written consent.
21.7. (Severance) If any provision of the Agreement is held to be invalid, in whole or in part, that provision is severed from the Agreement and the enforceability of the remainder is not affected.
21.8. (Entire agreement) The Agreement forms the entire agreement between TSN and the Client relating to the Services, and replaces any previous correspondence, understandings or other communications (written or oral).
22. Definitions
In this document:
Agreement means the agreement between TSN and the Client set out in these Terms and Conditions and the Engagement Letter, together with any changes agreed in writing between the parties.
ATO means the Australian Taxation Office.
Client is defined in the Engagement Letter.
Commencement Date means the date the Engagement Letter is signed by or on behalf of the Client, or the date on which the Services commenced, whichever is earlier.
Confidential Information means all non-public information or documents which either party receives or produces in connection with the Services, including TSN’s working papers, information and methodologies, but does not include information which: (a) is or becomes generally available to the public other than through a breach of clause 8; (b) was known to either party before TSN started the Services; (c) is received from a third party who owes no obligation of confidence in respect of it; or (d) is developed by either party independently of the Services.
Engagement means the engagement by the Client of TSN to perform the Services, as contemplated in the Engagement Letter.
Engagement Letter means the engagement letter to which these Terms and Conditions are referenced.
Fees means the fees described in the Engagement Letter, as amended by any changes agreed in writing between the parties.
GST Law has the meaning given in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) and includes any other Act or regulation relating to the imposition or administration of GST.
Intellectual Property Rights includes all rights throughout the world in relation to patents, copyright (including moral rights), designs, registered and unregistered trade marks, trade secrets, know-how, confidential information and all other intellectual property, and any right to register those rights, whether created before or after the date of the Agreement and for the duration of those rights and any renewal.
Privacy Act means the Privacy Act 1988 (Cth).
Services is defined in the Engagement Letter.
Term is defined in the Engagement Letter.
Terms and Conditions means the terms and conditions set out in this document.
TSN means The Startup Nerds Pty Ltd ACN 664 733 751, trading as TSN Advisory, and, for tax agent services, The Startup Nerds Tax Pty Ltd, trading as TSN Tax.
Questions about these terms? Email hello@tsnadvisory.com.