TERMS & CONDITIONS
These terms of business (“Terms”) apply in respect of the services (“Services”) to be performed by Us (“Wine & Dandy” or “We”,) for You (“Client”), both named in the engagement letter and collectively referred to as the “parties”, and any subsequent engagement letter to which these Terms apply (“Engagement Letter”) (which may include an updated schedule which advises any changes to material terms contained in the Engagement Letter for a subsequent income year in which we provide services to You - “Update Schedule”). These Terms and the Engagement Letter form the Contract (“Contract”) between the parties for the Services.
Engaging or continuing to engage Wine & Dandy to provide the Services, will confirm your acceptance of this Contract. However, for evidentiary purposes, our strong preference is for the Client Acknowledgement contained at the end of the Engagement Letter to be signed, dated and returned to our office either electronically or by post.
Wine & Dandy will provide the Services described in the Engagement Letter to You.
Wine & Dandy will endeavour to carry out our obligations in accordance with the timescales set out in the Engagement Letter, where stated. However, unless both parties specifically agree otherwise in writing, the dates contained in the Engagement Letter are indicative dates intended for planning and estimating purposes only and are not contractually binding. Any estimates of time for completion of the Services are given on the assumption that Wine & Dandy receives co-operation, diligence and commitment from You. For the avoidance of doubt, Wine & Dandy will not be liable for any failure or delay in performing the Services if that failure or delay arises from anything beyond Wine & Dandy’s reasonable control – including the untimely provision of information by You or the provision of incomplete or incorrect information.
1.2 Changes to Services
Either of the parties may request changes to the Services as set out in the Engagement Letter. Both parties agree to work together to enable both parties to assess the impact of any requested changes on the cost, timing and any other aspect of the Services.
1.3 Wine & Dandy Engagement Team
Where specific Wine & Dandy personnel are named in the Engagement Letter, Wine & Dandy will use reasonable efforts to ensure that those individuals are available to provide the Services. Where any changes are necessary, Wine & Dandy will give you reasonable notice of the changes. Staff have been allocated to the engagement based upon Wine & Dandy’s assessment of the levels of experience, skills and responsibility involved.
You agree to provide in a timely fashion all information and documents reasonably required to enable Wine & Dandy to provide the Services. Unless otherwise stated in the Engagement Letter, Wine & Dandy will not independently verify the accuracy of such information and documents and will not be liable for any loss or damage arising from any inaccuracy or other defect in any information or documents supplied by You.
3. Fees and Payment
3.1 How fees will be calculated
Wine & Dandy’s fees are calculated on the basis of time spent on the assignment by our personnel in accordance with hourly rates current at the time the Services are performed. Unless otherwise stated, any total quantum of fees indicated in the Engagement Letter are indicative estimates only based upon the preliminary information provided by You and our experience with similar and/or your previous engagements. Any fees quoted are not fixed, unless otherwise stated, and Wine & Dandy reserves the right to render fee invoices for an amount based upon time spent, greater than any quantum indicated in the Engagement Letter.
Wine & Dandy’s performance is dependent on You carrying out your responsibilities as set out in the Contract and You providing all information reasonably requested by Wine & Dandy in a complete and timely manner. Should this not occur, it may lead to an increase in fees depending upon the extent to which Wine & Dandy has to perform more work or reschedule commitments to deliver the Services. Alterations to the scope of Services or delays beyond the control of Wine & Dandy may require a reallocation of engagement staff and a renegotiation of fees.
All charges are exclusive of expenses unless the Engagement Letter states otherwise. You agree to pay Wine & Dandy’s reasonable travel, subsistence and document handling costs (photocopying, scanning and imaging, printing, fax and courier, etc) incurred in connection with the Services. Any special expense arrangements will be set out in the Engagement Letter.
3.4 Payment of invoices
Wine & Dandy’s tax invoices will be issued on a monthly basis or as set out in the Engagement Letter. Wine & Dandy reserves the right to issue tax invoices at more or less frequent intervals. All tax invoices will be due for payment as stipulated on the tax invoice. All tax invoices will be rendered with relevant client details and a summary of work performed.
Wine & Dandy reserves the right to recover all reasonable default costs and enforcement expenses in the event tax invoices are not paid by the due date and recovery action is necessary.
You agree that Wine & Dandy will hold a general lien over all files, papers and documents belonging to You (“Documents”) which are in Wine & Dandy’s possession as security for all outstanding amounts owed by You to Wine & Dandy including without limitation unpaid tax invoices, interest, default costs and enforcement expenses (“Outstanding Amounts”) until all Outstanding Amounts are paid in full to Wine & Dandy.
Any applicable GST added to our professional costs is shown in your tax invoice and must be paid at the same time that You pay our professional costs charged in your tax invoice.
4. Term and Termination
4.1 Duration of Contract
This Contract will apply from the date that You sign and return the Client Acknowledgment contained at the end of the Engagement Letter (“Commencement Date”). In the event that we decide, at our discretion, to perform Services prior to our office receiving the Client Acknowledgment back from You, then the Contract will be deemed to have commenced from the date of the Engagement Letter.
The Contract may be terminated by either party by providing written notice to the other. If the Contract is terminated prior to completion of the Services, Wine & Dandy shall be entitled to be paid for work that has been carried out, or for where expenses have been incurred, up to the date of termination.
Both parties agree to take reasonable steps to maintain (within the respective organisations) the confidentiality of any proprietary or confidential information of the other.
Other than as required by law, or reasonably necessary in order for You to comply with your legal obligations, if You wish to provide third parties with copies of Wine & Dandy designs, images, content, reports, letters, information, advice, audio and/or visual media, or any other content created by Wine & Dandy, You must first obtain the written permission of Wine & Dandy to disclose the content or information (please note our intellectual property rights referred to in clause 12.1 herein). Wine & Dandy also reserves the right to:
set the terms on which those copies are given or used; or
require the third party to enter into a direct relationship with Wine & Dandy or to enter a standard form deed poll of confidentiality.
6. Indemnity for Liability to third parties
You agree to indemnify Wine & Dandy against all liabilities, claims, costs, losses, suits or expenses (including legal fees and disbursements) incurred by Wine & Dandy in respect of any third party claim which is related to, arises out of, or is in any way associated with, this engagement. However, the indemnity does not apply to any costs, charges and expenses in respect of any matters which are finally determined to have resulted solely and directly from Wine & Dandy’s negligent or wilful acts or omissions.
Wine & Dandy holds the benefit of this indemnity on trust for itself and its partners, directors, employees and contractors.
7. Personal Property Securities Act 2009 (“PPS Law”)
For the purposes of this clause, “PPS Law” means:
the PPS Act;
any regulations made at any time under the PPS Act;
any provision of the PPS Act or regulations referred to in (b) above;
any amendment to any of the above, made at any time; or
any amendment made at any time to any other legislation as a consequence of a PPS Law referred to in (a) to (d) above.
If at any time we determine that this Contract (or any of the transactions contemplated by or under it) creates a security interest over any of your personal property in our favour, then You must promptly, upon our request, do all things necessary (including, without limitation, completing, signing and providing documents, obtaining consents and supplying information) to:
protect any right, title and/or interest of ours in the relevant personal property;
ensure that any such security interest in favour of us;
is enforceable, perfected (including, where applicable, by control as well as by registration), maintained and otherwise fully effective; and
ranks as a first priority security interest wherever that is possible;
enable us to prepare and register a financing statement or a financing change statement; and
enable us to exercise any of our rights or perform any of our obligations in connection with any such security interest or under the PPS Law.
8. Access to working papers
The working papers for this engagement, including electronic documents and files, are the property of Wine & Dandy and constitute confidential information.
We will notify You as soon as practicable (unless restricted by law) where we receive a legally mandatory notice or request for access to our working papers from a third party or regulator (for example, the ATO). If legal advice is required as to whether any information or documents which may be subject to either legal or accountants’ professional privilege, may be retained and not provided to the third party, then all costs for such advice will be the Client’s responsibility.
We understand the importance of protecting the privacy of your personal information. In handling personal information, we comply with the Privacy Act 1988 (Cth) (“Privacy Act”), as amended from time to time, and with the 13 Australian Privacy Principles.
Generally, we collect and use your personal information for the purposes of providing You with the Services and any associated accounting and financial professional services. A failure to provide your personal information may affect our ability to assist You. Generally, the kinds of personal information we collect include your name, address, telephone number, email address, financial information, and details of superannuation arrangements, where relevant to the provision of the Services to You.
10. Relationship with other clients
We provide Services to other clients, some of whom may be in competition with You or have interests which conflict with your own. We will not disclose any of your personal information, or any confidential information that may come into our possession as a result of the Contract, to those other clients. However, our relationship with You, and our provision of the Services to You under the Contract does not and will not prevent or restrict us from providing Services to other clients.
11. Use of software
We may use or develop software, including spreadsheets, databases and other electronic tools (“Tools”) in providing the Services. If we provide these Tools to You, You acknowledge that (except where these Tools are a specific deliverable under the Contract) they are not your property, were developed for our purposes and without consideration of any purpose for which You might use them, are made available on an “as is” basis for your use only and must not be distributed to or shared with any third party.
We make no representations or warranties as to the sufficiency or appropriateness of the Tools for any purpose for which You or a third party may use them. Any Tools developed specifically for You will be identified in our Engagement Letter.
12.1 Intellectual Property Rights
All copyright and other intellectual property rights in all materials and tools (including software and working papers), data, designs, models, methodologies, analysis frameworks, practices, ideas, concepts and techniques brought to the engagement or created in the course of the engagement of Wine & Dandy shall remain and be irrevocably vested in Wine & Dandy absolutely, and cannot be resold by You.
If a provision in these Terms is held by a court to be wholly or partially void, illegal or unenforceable, then that provision or part thereof must, to that extent, be treated as deleted and severed from these Terms. This severance will not affect the validity or enforceability of the remainder of the provisions contained in the Contract.
Clause 12.2 has no effect if severance of the provision of these Terms materially affects or alters the nature or effect of the parties’ obligations under these Terms such that performance of those obligations is frustrated or impossible to perform.
Where an inconsistency exists between these Terms and a matter contained in our Engagement Letter with You, the Engagement Letter shall prevail.
Wine & Dandy will provide the Services as an independent contractor. Nothing in the Contract shall be construed to create a partnership, joint venture or other relationship between the parties. No party has the right, power or authority to oblige or contractually bind the other in any manner.
12.5 Governing Law & Jurisdiction
All aspects of the Services and the Contract are governed by, and construed in accordance with, the laws of the State in which this Engagement Letter is issued and the parties irrevocably submit to the exclusive jurisdiction of the Courts of that State including Federal Courts where relevant within that State.
12.6 Dispute Resolution
If there is a dispute relating to the Services or the Contract, the parties will submit to mediation before having recourse to any other dispute resolution process. Written notice of the dispute must be given to the other party for it to be submitted to mediation before a mediator chosen by the parties or, where the parties cannot agree on the identity or terms of engagement of a mediator, then as selected by the Australian Commercial Disputes Centre (“ACDC”). The parties will use their best endeavours to settle the dispute promptly. The mediation will be conducted in accordance with the ACDC Mediation Guidelines to the extent that they do not conflict with the provision of this clause.
If the dispute is not resolved within 60 days after notice of the dispute or such further period agreed between Wine & Dandy and the Client, then the mediation will terminate.
12.7 Electronic Communication
Electronically transmitted information cannot be guaranteed to be secure or error or virus free and it may be unsafe to use or cause damage to the effectiveness of your software or computer network or systems. Wine & Dandy will use commercially reasonable procedures to check for the most commonly known viruses before sending information electronically, but will not be liable to You or any of your associates in respect of any error, virus or omission or loss of confidential information arising from or in connection with the electronic communication of information to You. You may elect, in writing, not to permit Wine & Dandy to communicate electronically with You.
12.8 Usual Work
Usual Work refers to creating websites or designs that already have established branding and assets such as illustrations, colour palettes, logos, fonts, and other branding-related assets. Any extra branding assets must be proposed and agreed as an extra cost.
For copywriting and social media, Usual Work refers to creating copy using already supplied information by You in the branding questionnaire or through extra channels as reasonably requested by Wine & Dandy to be able to perform the Usual Work. Research about the brand or products will incur an extra cost.