Terms and Conditions

1. Definitions

1.1 “Contract” means the terms and conditions contained herein, together with any quotation, order, invoice or other document or amendments expressed to be supplemental to this Contract.
1.2 “Company” means Zenith Business Advisers Pty Ltd ATF Zenith Business Advisers Unit Trust T/A Hedland Accounting & Finance, its successors and assigns or any person acting on behalf of and with the authority of Zenith Business Advisers Pty Ltd ATF Zenith Business Advisers Unit Trust T/A Hedland Accounting & Finance.
1.3 “Client” means the person/s, entities or any person acting on behalf of and with the authority of the Client requesting the Company to provide the Services as specified in any proposal, quotation, order, invoice or other documentation, and:

(a) if there is more than one Client, is a reference to each Client jointly and severally; and
(b) if the Client is a partnership, it shall bind each partner jointly and severally; and
(c) if the Client is a part of a Trust, shall be bound in their capacity as a trustee; and
(d) includes the Client’s executors, administrators, successors and permitted assigns.

1.4 “Consultants” shall mean any person or persons engaged by the Company to provide specialised work on behalf of the Client.
1.5 “Documentation” means any goods, documents, designs, drawings or materials supplied, consumed, created or deposited incidentally by the Company in the course of it conducting, or supplying to the Client, any Services.
1.6 “Services” mean all Services supplied by the Company to the Client at the Client’s request from time to time.
1.7 "Confidential Information” means information of a confidential nature whether oral, written or in electronic form including, but not limited to, this Contract, either party’s intellectual property, operational information, know-how, trade secrets, financial and commercial affairs, contracts, client information (including but not limited to, “Personal Information” such as: name, address, D.O.B, occupation, driver’s license details, electronic contact (email, Facebook or Twitter details), medical insurance details or next of kin and other contact information (where applicable), previous credit applications, credit history) and pricing details.
1.8 “Cookies” means small files which are stored on a user’s computer. They are designed to hold a modest amount of data (including Personal Information) specific to a particular client and website, and can be accessed either by the web server or the client’s computer. If the Client does not wish to allow Cookies to operate in the background when ordering from the website, then the Client shall have the right to enable / disable the Cookies first by selecting the option to enable / disable provided on the website, prior to ordering Services via the website.
1.9 “Fees” means the price payable (plus any GST where applicable) for the Services as agreed between the Company and the Client in accordance with clause 6 of this Contract.
1.10 “GST” means Goods and Services Tax as defined within the “A New Tax System (Goods and Services Tax) Act 1999” (Cth).

2. Acceptance

2.1 The Client is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Client places an order for, or accepts Services provided by the Company.
2.2 In the event of any inconsistency between the terms and conditions of this Contract and any other prior document or schedule that the parties have entered into, the terms of this Contract shall prevail.
2.3 Any amendment to the terms and conditions contained in this Contract may only be amended in writing by the consent of both parties.
2.4 The Client acknowledges that the supply of Services on credit shall not take effect until the Client has completed a credit application with the Company and it has been approved with a credit limit established for the account.
2.5 In the event that the supply of Services request exceeds the Clients credit limit and/or the account exceeds the payment terms, the Company reserves the right to refuse delivery.
2.6 None of the Company’s agents or representatives are authorised to make any representations, statements, conditions or agreements not expressed by the manager of the Company in writing nor is the Company bound by any such unauthorised statements.
2.7 On completion of any Services the Company will retain any documents for a period of seven (7) years after which the documents will be destroyed unless otherwise requested by the Client.
2.8 The Company and the Client agree that both parties may communicate with each other electronically, and electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 10 of the Electronic Transactions Act 2011 or any other applicable provisions of that Act or any Regulations referred to in that Act. The Client acknowledges that electronic transmissions are inherently insecure, can be corrupted or intercepted, may not be delivered and may contain viruses. The Company is not responsible to the Client for any loss suffered in connection with the use of e-mail as a form of communication with the Client.

3. Change in Control

3.1 The Client shall give the Company not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client and/or any other change in the Client’s details (including but not limited to, changes in the Client’s name, address, contact phone or fax number/s, change of trustees, or business practice). The Client shall be liable for any loss incurred by the Company as a result of the Client’s failure to comply with this clause.

4. Services

4.1 The Services shall be as described in the Letter of Engagement provided by the Company to the Client.
4.2 These terms and conditions are to be read in conjunction with the Company’s Letter of Engagement. If there are any inconsistencies between the two documents then the terms and conditions contained in this document shall prevail.
4.3 The Company may from time to time sub-contract some of the Services. The Company will secure a quote or estimate for such services and gain the Client’s approval (where applicable) before engaging the Consultant for the Services. Unless, otherwise agreed, the Client is liable to pay the Consultant’s costs directly to the Consultant once the Consultant’s account has been checked and certified for payment by the Company. The Company may charge as an extra for this co-ordination work based on current hourly charge rates.

5. Client’s Obligations

5.1 The Client agrees to pay for the Services described in the Letter of Engagement.
5.2 The Client shall provide promptly to the Company all reasonable and necessary assistance, including access to all information which the Company considers to be relevant to the engagement, so as to enable the Company to provide the Services. In doing so, the Client shall update information provided by it to the Company where there has been a material change to that information which affects the scope of performance by the Company of the Services.

6. Fees and Payment

6.1 At the Company’s sole discretion the Fees shall be either:

(a) as indicated on any invoice provided by the Company to the Client; or
(b) the Company’s quoted Fees (subject to clause 6.2) which shall be indicated on the Company’s Letter of Engagement and will be valid for the period stated therein and subject to any conditions stated therein.

6.2 The Company reserves the right to change the Fees in the event of a variation to the Company’s Letter of Engagement.
6.3 Time for payment for the Services being of the essence, the Fees will be payable by the Client on the date/s determined by the Company, which may be:

(a) on completion of the Services;
(b) by way of instalments/progress payments in accordance with the Company’s payment schedule;
(c) for approved credit account holders fourteen (14) days following the date of any invoice; or
(d) the date specified on any invoice or other form as being the date for payment; or
(e) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Client by the Company.

6.4 Payment may be made by cash, cheque, bank cheque, electronic/on-line banking, credit card (a surcharge may apply per transaction), or by any other method as agreed to between the Client and the Company.
6.5 The Company may in its discretion allocate any payment received from the Client towards any invoice that the Company determines and may do so at the time of receipt or at any time afterwards. On any default by the Client the Company may re-allocate any payments previously received and allocated. In the absence of any payment allocation by the Company, payment will be deemed to be allocated in such manner as preserves the maximum value of the Company’s Purchase Money Security Interest (as defined in the PPSA) in the Services.
6.6 The Client shall not be entitled to set off against, or deduct from the Fees, any sums owed or claimed to be owed to the Client by the Company nor to withhold payment of any invoice because part of that invoice is in dispute.
6.7 Unless otherwise stated the Fees does not include GST. In addition to the Fees, the Client must pay to the Company an amount equal to any GST the Company must pay for any supply by the Company under this or any other agreement for providing the Company’s Services. The Client must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Client pays the Fees. In addition, the Client must pay any other taxes and duties that may be applicable in addition to the Fees except where they are expressly included in the Fees.

7. Provision of Services

7.1 Any time specified by the Company for delivery of the Services is an estimate only and the Company will not be liable for any loss or damage incurred by the Client as a result of delivery being late. However both parties agree that they shall make every endeavour to enable the Services to be supplied at the time and place as was arranged between both parties. In the event that the Company is unable to supply the Services as agreed solely due to any action or inaction of the Client then the Company shall be entitled to charge a reasonable fee for re-supplying the Services at a later time and date.

8. Risk

8.1 Irrespective of whether the Company retains ownership of any Documentation all risk for such items shall pass to the Client as soon as such items are delivered to the Client and shall remain with the Client until such time as the Company may repossess the Documentation in accordance with clause 10.3(c). The Client must insure all Documentation on or before delivery.

9. Compliance with Laws

9.1 The Client and the Company shall comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities that may be applicable to the Services (including but not limited to any Anti Money Laundering Laws etc.).

10. Title

10.1 The Company and the Client agree that where it is intended that the ownership of Documentation is to pass to the Client that such ownership shall not pass until:

(a) the Client has paid the Company all amounts owing for the Services; and
(b) the Client has met all other obligations due by the Client to the Company in respect of all contracts between the Company and the Client.

10.2 Receipt by the Company of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised and until then the Company’s ownership or rights in respect of the Documentation shall continue.
10.3 It is further agreed that, until ownership of the Documentation passes to the Client in accordance with clause 10.1:

(a) the Client is only a bailee of the Documentation and must return the Documentation to the Company immediately upon request by the Company;
(b) the Client shall not charge or grant an encumbrance over the Documentation nor grant nor otherwise give away any interest in the Documentation while they remain the property of the Company;
(c) the Client irrevocably authorises the Company to enter any premises where the Company believes the Documentation are kept and recover possession of the Documentation.

11. Personal Property Securities Act 2009 (“PPSA”)

11.1 In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.
11.2 Upon assenting to these terms and conditions in writing the Client acknowledges and agrees that these terms and conditions constitute a security agreement for the purposes of the PPSA and creates a security interest in:

(a) all Documentation previously supplied by the Company to the Client;
(b) all Documentation will be supplied in the future by the Company to the Client; and
(c) all the Client’s present and after acquired property being a charge, including anything in respect of which the Client has at any time a sufficient right, interest or power to grant a security interest in for the purposes of securing repayment of all monetary obligations of the Client to the Company for Services – that have previously been provided and that will be provided in the future by the Company to the Client.

11.3 The Client undertakes to:

(a) promptly sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which the Company may reasonably require to;

(i) register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;
(ii) register any other document required to be registered by the PPSA; or
(iii) correct a defect in a statement referred to in clause 11.3(a)(i) or 11.3(a)(ii);

(b) indemnify, and upon demand reimburse, the Company for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register established by the PPSA or releasing any Documentation charged thereby;
(c) not register a financing change statement in respect of a security interest without the prior written consent of the Company;
(d) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Documentation in favour of a third party without the prior written consent of the Company.

11.4 The Company and the Client agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.
11.5 The Client waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
11.6 The Client waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
11.7 Unless otherwise agreed to in writing by the Company, the Client waives their right to receive a verification statement in accordance with section 157 of the PPSA.
11.8 The Client must unconditionally ratify any actions taken by the Company under clauses 11.3 to 11.5.
11.9 Subject to any express provisions to the contrary (including those contained in this clause 11), nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.

12. Security and Charge

12.1 In consideration of the Company agreeing to supply Services, the Client charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Client either now or in the future, to secure the performance by the Client of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
12.2 The Client indemnifies the Company from and against all the Company’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising the Company’s rights under this clause.
12.3 The Client irrevocably appoints the Company and each director of the Company as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 12 including, but not limited to, signing any document on the Client’s behalf.

13. Defects, Warranties and the Competition and Consumer Act 2010 (CCA)

13.1 The Client must inspect the Company’s Services on completion of the Services and must within seven (7) days notify the Company in writing of any evident defect in the Services or Documentation provided (including the Company’s workmanship) or of any other failure by the Company to comply with the description of, or quote for, the Services which the Company was to supply. The Client must notify any other alleged defect in the Company’s Services or Documentation as soon as is reasonably possible after any such defect becomes evident. Upon such notification the Client must allow the Company to review the Services or Documentation that were provided.
13.2 Under applicable State, Territory and Commonwealth Law (including, without limitation the CCA), certain statutory implied guarantees and warranties (including, without limitation the statutory guarantees under the CCA) may be implied into these terms and conditions (Non-Excluded Guarantees).
13.3 The Company acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.
13.4 Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, the Company makes no warranties or other representations under these terms and conditions including, but not limited to, the quality or suitability of the Services. The Company’s liability in respect of these warranties is limited to the fullest extent permitted by law.
13.5 If the Client is a consumer within the meaning of the CCA, the Company’s liability is limited to the extent permitted by section 64A of Schedule 2.
13.6 If the Company is required to rectify, re-supply, or pay the cost of re-supplying the Services under this clause or the CCA, but is unable to do so, then the Company may refund any money the Client has paid for the Services but only to the extent that such refund shall take into account the value of Services and Documentation which have been provided to the Client which were not defective.

14. Use of Reports and Advice

14.1 Any advice that the Company gives to the Client, its employees or agents is for the Client’s exclusive use and must be used only for the purpose described in the Letter of Engagement.
14.2 Unless the Company gives the Client prior written consent, the advice:

(a) must not be used or disclosed for any other purpose, referred to in any document or made available to any other person, except the Client’s lawyers or other professional advisor assisting in the Services; and
(b) may not be relied upon by any other party other than the Client.

14.3 The Company is not responsible to any other party other than the Client, who is provided with or obtains a copy of the Company’s advice.
14.4 The Company’s advice may, on occasion, be given to the Client in draft form or orally only on the basis that the Client may not rely on advice in that form. Accordingly, the Company shall not be responsible if the Client or any other party relies on the advice or chooses to act, or refrains from acting, on the basis of any draft advice or oral comments or advice.
14.5 The Client acknowledges that the signed copy of the Company’s final advice is the definitive version.
14.6 Sometimes circumstances may change after the Company has provided their final advice to the Client. If this happens the Company will not update any final advice it has provided to the Client under these terms and conditions. If the Client would like the Company to update their final advice, they must contact the Company and both parties can discuss a suitable term of engagement with the Client.

15. Confidentiality / Intellectual Property

15.1 Both the Client and the Company agrees to treat all information and ideas communicated to it by the other confidentially and agree not to divulge it to any third party, without the other party's written consent. The parties will not copy any such information supplied, and will either return it or destroy it (together with any copies thereof) on request of the other party.
15.2 Exceptions to clause 15.1 will be disclosures to legal advisers, disclosures required by law, and disclosures necessary for the proper performance of the Services.
15.3 Where the Company has developed software, spreadsheets, training materials, databases, proposals, tender documents and other electronic tools (“Tools”) in providing the Services for the Client, then the copyright in the Tools shall remain vested in the Company, and shall only be used by the Client at the Company’s discretion.
15.4 The Client warrants that any software, spreadsheets, databases, electronic tools or instructions provided by the Client to the Company will not cause the Company to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify the Company against any action taken by a third party against the Company in respect of any such infringement.
15.5 Whether the Company or the Client retains the copyright in relation to Tools which are specifically developed for the Client shall be as is agreed, recorded in writing, and signed by both parties to this Contract.

16. Default and Consequences of Default

16.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at the Company’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
16.2 If the Client owes the Company any money the Client shall indemnify the Company from and against all costs and disbursements incurred by the Company in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, the Company’s contract default fee, and bank dishonour fees).
16.3 Further to any other rights or remedies the Company may have under this Contract, if a Client has made payment to the Company, and the transaction is subsequently reversed, the Client shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by the Company under this clause 16 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Client’s obligations under this Contract.
16.4 Without prejudice to the Company’s other remedies at law the Company shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to the Company shall, whether or not due for payment, become immediately payable if:

(a) any money payable to the Company becomes overdue, or in the Company’s opinion the Client will be unable to make a payment when it falls due;
(b) the Client has exceeded any applicable credit limit provided by the Company;
(c) the Client becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
(d) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.

17. Cancellation

17.1 Without prejudice to any other remedies the Company may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions the Company may suspend or terminate the supply of Services to the Client. The Company will not be liable to the Client for any loss or damage the Client suffers because the Compnay has exercised its rights under this clause.
17.2 The Company may cancel any contract to which these terms and conditions apply or cancel delivery of Services at any time before the Services are commenced by giving written notice to the Client. On giving such notice the Company shall repay to the Client any money paid by the Client for the Services. The Company shall not be liable for any loss or damage whatsoever arising from such cancellation.
17.3 In the event that the Client cancels delivery of the Services the Client shall be liable for any and all loss incurred (whether direct or indirect) by the Company as a direct result of the cancellation (including, but not limited to, any loss of profits).

18. Complaint Procedures

1.1 It is the Company’s aim to obtain, either formally or informally, a regular assessment of the Company’s performance, and the Client’s service partner will always be pleased to hear any suggestions as to how our service can be improved. If the Client wishes to make a complaint, they may call or write to the Company’s Director at 8/4 Edgar Street, Port Hedland WA 6721. If the Client is dissatisfied with the way any complaint is handled, they may report the matter to the Institute of Chartered Accountants Australia (WA) or any applicable regulatory body.

19. Privacy Policy

19.1 All emails, documents, images or other recorded information held or used by the Company is Personal Information, as defined and referred to in clause 19.3, and therefore considered Confidential Information. The Company acknowledges its obligation in relation to the handling, use, disclosure and processing of Personal Information pursuant to the Privacy Act 1988 (“the Act”) including the Part IIIC of the Act being Privacy Amendment (Notifiable Data Breaches) Act 2017 (NDB) and any statutory requirements, where relevant in a European Economic Area (“EEA”), under the EU Data Privacy Laws (including the General Data Protection Regulation “GDPR”) (collectively, “EU Data Privacy Laws”). The Company acknowledges that in the event it becomes aware of any data breaches and/or disclosure of the Clients Personal Information, held by the Company that may result in serious harm to the Client, the Company will notify the Client in accordance with the Act and/or the GDPR. Any release of such Personal Information must be in accordance with the Act and the GDPR (where relevant) and must be approved by the Client by written consent, unless subject to an operation of law.
19.2 Notwithstanding clause 19.1, privacy limitations will extend to the Company in respect of Cookies where transactions for purchases/orders transpire directly from the Company’s website. The Company agrees to display reference to such Cookies and/or similar tracking technologies, such as pixels and web beacons (if applicable), such technology allows the collection of Personal Information such as the Client’s:

(a) IP address, browser, email client type and other similar details;
(b) tracking website usage and traffic; and
(c) reports are available to the Company when the Company sends an email to the Client, so the Company may collect and review that information (“collectively Personal Information”) In order to enable / disable the collection of Personal Information by way of Cookies, the Client shall have the right to enable / disable the Cookies first by selecting the option to enable / disable, provided on the website prior to proceeding with a purchase/order via the Company’s website.

19.3 The Client agrees for the Company to obtain from a credit reporting body (CRB) a credit report containing personal credit information (e.g. name, address, D.O.B, occupation, driver’s license details, electronic contact (email, Facebook or Twitter details), medical insurance details or next of kin and other contact information (where applicable), previous credit applications, credit history) about the Client in relation to credit provided by the Company.
19.4 The Client agrees that the Company may exchange information about the Client with those credit providers and with related body corporates for the following purposes:

(a) to assess an application by the Client; and/or
(b) to notify other credit providers of a default by the Client; and/or
(c) to exchange information with other credit providers as to the status of this credit account, where the Client is in default with other credit providers; and/or
(d) to assess the creditworthiness of the Client including the Client’s repayment history in the preceding two (2) years.

19.5 The Client consents to the Company being given a consumer credit report to collect overdue payment on commercial credit.
19.6 The Client agrees that personal credit information provided may be used and retained by the Company for the following purposes (and for other agreed purposes or required by):

(a) the provision of Services; and/or
(b) analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to the provision of Services; and/or
(c) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client; and/or
(d) enabling the collection of amounts outstanding in relation to the Services.

19.7 The Company may give information about the Client to a CRB for the following purposes:

(a) to obtain a consumer credit report;
(b) allow the CRB to create or maintain a credit information file about the Client including credit history.

19.8 The information given to the CRB may include:

(a) Personal Information as outlined in 19.3 above;
(b) name of the credit provider and that the Company is a current credit provider to the Client;
(c) whether the credit provider is a licensee;
(d) type of consumer credit;
(e) details concerning the Client’s application for credit or commercial credit (e.g. date of commencement/termination of the credit account and the amount requested);
(f) advice of consumer credit defaults, overdue accounts, loan repayments or outstanding monies which are overdue by more than sixty (60) days and for which written notice for request of payment has been made and debt recovery action commenced or alternatively that the Client no longer has any overdue accounts and the Company has been paid or otherwise discharged and all details surrounding that discharge(e.g. dates of payments);
(g) information that, in the opinion of the Company, the Client has committed a serious credit infringement;
(h) advice that the amount of the Client’s overdue payment is equal to or more than one hundred and fifty dollars ($150).

19.9 The Client shall have the right to request (by e-mail) from the Company:

(a) a copy of the Personal Information about the Client retained by the Company and the right to request that the Company correct any incorrect Personal Information; and
(b) that the Company does not disclose any Personal Information about the Client for the purpose of direct marketing.

19.10 The Company will destroy Personal Information upon the Client’s request (by e-mail) or if it is no longer required unless it is required in order to fulfil the obligations of this Contract or is required to be maintained and/or stored in accordance with the law.
19.11 The Client can make a privacy complaint by contacting the Company via e-mail. The Company will respond to that complaint within seven (7) days of receipt and will take all reasonable steps to make a decision as to the complaint within thirty (30) days of receipt of the complaint. In the event that the Client is not satisfied with the resolution provided, the Client can make a complaint to the Information Commissioner at www.oaic.gov.au.
20. Lien

20.1 Where the Client has left any of the Client’s documentation with the Company for the Company to provide any Services in relation to that documentation and the Company has not received or been tendered the whole of the Fees, or the payment has been dishonoured, the Company shall have:
(a) a lien on the documentation; and
(b) the right to retain the documentation whilst the Company is in possession of the documentation until such time as payment has been made in full; and
(c) the lien of the Company shall continue despite the commencement of proceedings, or judgment for the Fees having been obtained; and
(d) the Company shall be under no obligation to release the documentation to the Client if the Client is in default of payment except as may be required by any law or statute.

21. Service of Notices

21.1 Any written notice given under this Contract shall be deemed to have been given and received:

(a) by handing the notice to the other party, in person;
(b) by leaving it at the address of the other party as stated in this Contract;
(c) by sending it by registered post to the address of the other party as stated in this Contract;
(d) if sent by facsimile transmission to the fax number of the other party as stated in this Contract (if any), on receipt of confirmation of the transmission;
(e) if sent by email to the other party’s last known email address.

21.2 Any notice that is posted shall be deemed to have been served, unless the contrary is shown, at the time when by the ordinary course of post, the notice would have been delivered.

22. Trusts

22.1 If the Client at any time upon or subsequent to entering in to the Contract is acting in the capacity of trustee of any trust (“Trust”) then whether or not the Company may have notice of the Trust, the Client covenants with the Company as follows:

(a) the Contract extends to all rights of indemnity which the Client now or subsequently may have against the Trust and the trust fund;
(b) the Client has full and complete power and authority under the Trust to enter into the Contract and the provisions of the Trust do not purport to exclude or take away the right of indemnity of the Client against the Trust or the trust fund. The Client will not release the right of indemnity or commit any breach of trust or be a party to any other action which might prejudice that right of indemnity;
(c) the Client will not without consent in writing of the Company (the Company will not unreasonably withhold consent), cause, permit, or suffer to happen any of the following events:

(i) the removal, replacement or retirement of the Client as trustee of the Trust;
(ii) any alteration to or variation of the terms of the Trust;
(iii) any advancement or distribution of capital of the Trust; or
(iv) any resettlement of the trust property.

23. Liability Limitations

23.1 Except as is specified in clause 13, the liability limitations of the Company, it partners, associates, and employees shall:

(a) be as detailed in the CPA Australia Ltd ( Western Australia) Scheme approved under the Professional Standards Act 1997 (WA); and
(b) shall exclude any indirect loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by the Company of these terms and conditions.

23.2 The Client agrees, to the extent permitted by law, that the liability to the Client of the Company, its partners, associates and employees or contractors in any way arising from or connected with this engagement including, without limitation, liability for negligence, will be limited to the maximum amount as specified under the Scheme as per clause 23.1.
23.3 The Client agrees to indemnify the Company, its partners, associates, employees and any other person who may be sought to be made liable in excess of the limit of liability described in clause 23.2 in respect of any activity arising from or connected with these terms in respect of any claim of whatever kind, including negligence, that may be made by any person and any costs and expenses that may be incurred by the Company.

24. General

24.1 The failure by either party to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect that party’s right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
24.2 These terms and conditions and any contract to which they apply shall be governed by the laws of Western Australia, the state in which the Company has its principal place of business, and are subject to the jurisdiction of the courts in Port Hedland, Western Australia.
24.3 Subject to clause 13, the Company shall be under no liability whatsoever to the Client for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by the Company of these terms and conditions (alternatively the Company’s liability shall be limited to damages which under no circumstances shall exceed the Fees of the Services).
24.4 The Company may licence and/or assign all or any part of its rights and/or obligations under this Contract without the Client’s consent.
24.5 The Client cannot licence or assign without the written approval of the Company.
24.6 The Company may elect to subcontract out any part of the Services but shall not be relieved from any liability or obligation under this Contract by so doing. Furthermore, the Client agrees and understands that they have no authority to give any instruction to any of the Company’s sub-contractors without the authority of the Company.
24.7 The Client agrees that the Company may amend their general terms and conditions for subsequent future contracts with the Client by disclosing such to the Client in writing. These changes shall be deemed to take effect from the date on which the Client accepts such changes, or otherwise at such time as the Client makes a further request for the Company to provide Services to the Client.
24.8 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.
24.9 Both parties warrant that they have the power to enter into this Contract and have obtained all necessary authorisations to allow them to do so, they are not insolvent and that this Contract creates binding and valid legal obligations on them.

Terms and Conditions

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+61 (08) 9173 2060

Shop 8, Port Plaza, 4 Edgar Street, Port Hedland WA 6721.

PO Box 320, Port Hedland WA 6721.