Version 1.0 November 2021
1.1. GILLESPIE ADVISORY PTY LIMITED (also referred to as “we”, “us” and “our”) has set out below the terms and conditions on which we will supply you (also referred to as “the Client”) with the Services and/or the Software (the “Terms”).
1.2. Where the scope of the Services includes Advisory Services then these Terms together with our Engagement Letter will apply to all work GILLESPIE ADVISORY PTY LIMITED undertakes for you.
1.3. If there is any conflict between these Terms and our Engagement Letter, then the Engagement Letter shall prevail to the extent of any inconsistency or conflict.
1.4. For the purposes of the Terms, “GILLESPIE ADVISORY PTY LIMITED” includes its partners, employees and all its related entities.
2. Our professional Services, including the benefit of and reliance upon Advisory Services
2.1. GILLESPIE ADVISORY PTY LIMITED will provide the Services set out in either our Engagement Letter or as nominated and purchased via our Website. We will use all reasonable commercial efforts to provide the Services in an efficient and timely manner, using the necessary skill and expertise to an appropriate professional standard.
2.2. Unless specifically stated otherwise in the Engagement Letter, any advice or opinion relating to the Services is provided solely for your sole use and benefit. You acknowledge and agree that our advice, recommendations, information and work product is based on the specific facts and circumstances and the scope of GILLESPIE ADVISORY PTY LIMITED’s engagement with you and is not intended to be, and must not be, relied upon by any other person.
2.3. You must not disclose any of our advice, opinions or work products to any third parties in any way, including any publication on any electronic media.
2.4. During the supply of our Services, we may supply oral, draft, or interim advice, reports, or presentations but in such circumstances our written advice or final written report shall take precedence. No reliance should be placed by you on any oral, draft, or interim advice, reports, or presentations. Where you wish to rely on oral advice or an oral presentation, you shall inform us, and we will provide documentary confirmation of the advice.
2.5. GILLESPIE ADVISORY PTY LIMITED is not under any obligation in any circumstance to update any advice or report, oral or written, for events occurring after the advice or report has been issued in final form.
2.6. In respect of the Advisory Services, the Client acknowledges that:
(a) GILLESPIE ADVISORY PTY LIMITED is a corporate authorised representative of Gillespie Finance Directions Pty Ltd (ABN 40 122 284 888) (AFSL & ACL 478547);
(b) GILLESPIE ADVISORY PTY LIMITED also employs/engages various authorised representatives to provide the Advisory Services;
(c) the Client has been given a copy of the Financial Services Guide also available here: https://f.hubspotusercontent00.net/hubfs/8794357/GA%20FSG%201.0%20August%202021.pdf
(d) the Client has been given a copy of the Credit Services Guide also available here: https://fs.hubspotusercontent00.net/hubfs/8794357/Credit%20guide.pdf
2.7. In the event of a claim by any third party relating to our Services that arises out of a breach by you or any of your personnel of this clause 2, you agree to indemnify and hold harmless GILLESPIE ADVISORY PTY LIMITED and our personnel from all such claims, liabilities, costs, and expenses (including legal fees and disbursements).
3. 3rd Party Software Subscriptions
3.1. GILLESPIE ADVISORY PTY LIMITED has formal reseller and partner agreements with many online software developers and providers (eg MYOB, Xero, etc) and under these agreements we can establish subscriptions to our partners software on behalf of our clients.
3.2. If you are purchasing a Software subscription from us then you acknowledge and agree that:
(a) the Software subscription is in our name and controlled by us, but access to the Software will be made available to you for your exclusive use;
(b) access to the Software may also be granted to anyone that you authorise as a “user”;
(c) the Fees we charge for the Software subscription are intended to be the standard retail price you would pay if you subscribed to the software provider directly and all our pricing is determined by the relevant software provider/s. We will pass on to you all changes in pricing issued by the software provider;
(d) we are only facilitating your purchase of the Software subscription and are not responsible or liable for the features, the maintenance or the security of the Software, any unavailability (“down time”) of the Software, the software provider or any third party accessing your Data, or any Data loss;
(e) the software providers periodically update their Software subscription types and packages, and such changes are outside of our control;
(f) where the software provider updates the Software subscription you are purchasing through us, the changes will have automatic effect to your Software subscription;
(g) (other than if we have been engaged by you to make such a recommendation) we make no warranty that the Software you are subscribing for is fit for its intended purpose;
(h) the Client is responsible and liable for all the acts and omissions of each user in connection with the access and use of the Software; and
(i) the relevant software provider’s terms and conditions also apply to your use of the Software.
3.3. As a result of these reseller/partner agreements, we may receive commission based on the retail price charged or we may be invoiced by the software providers at a reduced price. You agree that we are not obligated to remit any commission or margin received by us as a result of these arrangements.
4. Access conditions for our Website, Client Portal and 3rd Party Software Subscriptions
4.1. You must ensure that all usernames and passwords required to access the Software, our Website and any client portal we may have, are kept secure and confidential. You must immediately notify the software provider in question and GILLESPIE ADVISORY PTY LIMITED of any unauthorised use of your passwords, or any other breach of security and the software provider will reset your password and you must take all other actions that GILLESPIE ADVISORY PTY LIMITED and the software provider reasonably deem necessary to maintain or enhance the security of GILLESPIE ADVISORY PTY LIMITED’s/the software provider’s computing systems and networks and your access to the Software, our Website and any client portal.
4.2. As a condition of these Terms, when accessing and using the Software, our Website and any client portal you must:
(a) not attempt to undermine the security or integrity of GILLESPIE ADVISORY PTY LIMITED’s or the software provider’s computing systems or networks or, where the Software, Website or client portal is hosted by a third party, that third party’s computing systems and networks;
(b) not use, or misuse, the Software, our Website or the client portal, in any way which may impair the functionality of the Software, our Website, the client portal or other systems used to deliver the Software or the Services or impair the ability of any other user to use the Software, our Website or the client portal;
(c) not attempt to gain unauthorised access to any materials other than those to which you have been given express permission to access or to the computer system on which the Software, our Website or the client portal is hosted;
(d) not transmit, or input into the Software, our Website or any client portal we may have, any files that may damage any other person’s computing devices or software, content that may be offensive, or material or Data in violation of any law (including Data or other material protected by copyright or trade secrets which you do not have the right to use); and
(e) not attempt to modify, copy, adapt, reproduce, disassemble, decompile, or reverse engineer any computer programs used to deliver the Software, our Website or our client portal.
5. Your obligations
5.1. Without limiting any other obligation placed upon you under these Terms (or the Engagement Letter), you:
(a) must provide GILLESPIE ADVISORY PTY LIMITED promptly with such information as may reasonably be required for the proper performance of the Services, including access to appropriate members of your staff, records, information, technology, systems, and premises;
(b) must pay for the Services and/or the Software in accordance with clause 6;
(c) must conduct regular back-ups of your own Data (howsoever stored);
(d) must not during the provision of the Software and/or the Services, and for a period of twelve months thereafter, make any offer of employment to any GILLESPIE ADVISORY PTY LIMITED partner or employee involved in the provision of the Software and/or the Services, without our prior consent.
5.2. GILLESPIE ADVISORY PTY LIMITED shall be entitled to rely upon the accuracy of all information provided by you, or by others on your behalf, without independently verifying it.
5.3. You undertake that, if anything occurs after information is provided by you to GILLESPIE ADVISORY PTY LIMITED, to render such information untrue, unfair, or misleading, you will promptly notify GILLESPIE ADVISORY PTY LIMITED and, if required by GILLESPIE ADVISORY PTY LIMITED, take all necessary steps to correct any announcement, communication or document issued which contains, refers to or is based upon, such information.
6. Fees, expenses, and payment terms
6.1. The Client acknowledges and agrees that:
(a) the Fees for Software subscriptions are payable monthly in advance;
(b) the Fees for one-off Services (such as the establishment of an off-the-shelf company) are payable in advance;
(c) the Fees for Services (where we have agreed to an ongoing monthly retainer) are payable monthly in advance; and
(d) the Fees for all other Services are due for payment within seven (7) days of GILLESPIE ADVISORY PTY LIMITED issuing an invoice.
6.2. The time-based Fees, if any, quoted in the Engagement Letter or as separately quoted in a fee letter will remain in force until 31 December or 30 June of each calendar year (whichever occurs first) and we may increase our time-based fees for work continuing past that date. We reserve the right to review and update our time-based fees every six (6) months and will notifying you in writing of any changes to our time-based Fees.
6.3. The Client acknowledges and agrees that GILLESPIE ADVISORY PTY LIMITED may charge Fees higher than estimated (to a maximum of $1,000) without needing to reissue or vary the Engagement Letter.
6.4. Out-of-pocket expenses incurred in connection with the Services will be charged to you on a monthly basis, and are due for payment within seven (7) days of GILLESPIE ADVISORY PTY LIMITED issuing an invoice.
6.5. The consideration payable for any supply made or to be made under these Terms and the Engagement Letter is exclusive of any goods and services tax (“GST”). If GST is payable on any supply made or to be made under these Terms and the Engagement Letter, you agree that the consideration payable for any such supply shall be increased by an amount equal to the amount of GST payable by GILLESPIE ADVISORY PTY LIMITED in respect of that supply.
6.6. If Fees are not paid by the due date for payment, we may charge you interest on the amount outstanding at a rate equal to 5% per annum calculated daily from the due date for payment until we receive full payment.
6.7. If we are required (pursuant to any order, subpoena, directive or other legal or regulatory process) to produce documents and/or information, answer enquiries, attend court or meetings or deal with any similar requests in relation to the Services for, or by, any judicial, regulatory, administrative or similar body or entity (including without limitation, any foreign regulator or similar), you shall reimburse us at standard billing rates for our professional time and expenses, including reasonable legal fees, incurred in dealing with those matters.
6.8. If Fees are not received on the due date for payment, GILLESPIE ADVISORY PTY LIMITED reserves its right to:
(a) suspend the Client’s access to the Software.
(b) suspend performance of the Services, until such time as the outstanding invoice is paid in full.
6.9. The Fees for one-off Services are not refundable under any circumstance (including if you purchase the wrong product/Service or input the wrong Data).
7. Termination of Agreement
7.1. Either party may terminate these Terms (and the Engagement Letter) immediately by written notice if:
(a) the other commits any material or persistent breach of its obligations under these Terms (and/or the Engagement Letter) (which, in the case of a breach capable of remedy, shall not have been remedied within fourteen (14) days of receipt by the party in breach of a notice identifying the breach and requiring its remedy); or
(b) the other becomes insolvent; or
(c) in accordance with any additional rights of termination set out in the Engagement Letter.
7.2. GILLESPIE ADVISORY PTY LIMITED may terminate these Terms (and the Engagement Letter) immediately by written notice if:
(a) the Services or Software are suspended under clause 6.8 or 13.4 for more than ten (10) normal working days; or
(b) there has been a change of law, rule, regulation or professional standard or a change in circumstance that would cause the continued provision of the Services to violate such law, rule, regulation or professional standard or would otherwise, in the reasonable opinion of GILLESPIE ADVISORY PTY LIMITED, prejudice GILLESPIE ADVISORY PTY LIMITED’s ability to comply with any applicable auditor independence requirement.
7.3. The Client may terminate the Software subscription by giving GILLESPIE ADVISORY PTY LIMITED at least thirty (30) days written notice. The notice may include a request to transfer the Software subscription to the Client or another accredited provider. Where the monthly Fee for a Software subscription falls due within the thirty (30) day notice period, the Client remains liable to pay that monthly Fee.
7.4. Termination under this clause 7 shall be without prejudice to any rights that may have accrued for either of us before termination and all sums due to us shall become payable in full when termination takes effect.
8. Limitation of liability
8.1. In this section, we set out, and you accept, the limitations which apply to our liability to you should you have reason to make a claim against us. The limitations and exclusions are accepted by both of us to be fair and reasonable, given the duties we are undertaking, the sums to which we are entitled and the availability (and cost) of insurance.
8.2. Nothing in these Terms (or the Engagement Letter) excludes, restricts, or modifies the application of the provisions of any statute (including the Australian Consumer Law (2010)) where to do so would contravene that statute or cause any part of these Terms to be void.
8.3. These Terms, and the Engagement Letter, are the only communications governing our relationship. Subject to clause 8.2, GILLESPIE ADVISORY PTY LIMITED expressly excludes and will have no liability for any statements, representations, guarantees, conditions, or warranties, including any which may be implied by statute, common law or custom or which arise from oral or written communications with you, which are not expressly contained in these Terms or the Engagement Letter. If any representations are of importance to you, you should ensure that they are expressly set out in the Engagement Letter before signature.
8.4. Without limiting clauses 8.2, 9.1 and 9.2, GILLESPIE ADVISORY PTY LIMITED’s liability in relation to the Services is limited under an Institute of Chartered Accountants in Australia Scheme approved under the relevant Australian States and Territories professional standards legislation, including, where applicable, the Treasury Legislation Amendment (Professional Standards) Act 2004 (Cth) (“PSL Scheme”). A copy of the relevant PSL Scheme, is available from your GILLESPIE ADVISORY PTY LIMITED representative or at https://www.psc.gov.au/
8.5. If GILLESPIE ADVISORY PTY LIMITED is liable for a breach of any warranty implied by the Australian Consumer Law in respect of Services not of a kind ordinarily acquired for personal, domestic or household use or consumption, GILLESPIE ADVISORY PTY LIMITED’s liability under that section is limited to the supplying of the Services again or the payment of the cost of having the Services supplied again, whichever GILLESPIE ADVISORY PTY LIMITED, in its absolute discretion, elects.
8.6. As we are merely facilitating your purchase of the Software from a software provider, you acknowledge and agree GILLESPIE ADVISORY PTY LIMITED is not liable for any loss or damage suffered by you in respect of the Software (as that is outside of our control).
8.7. To the extent permitted by law, you agree that to the extent that any loss or damage suffered by you is attributable to negligence, fault or lack of care on your part or on the part of any person for whom you are responsible, GILLESPIE ADVISORY PTY LIMITED is not liable (in contract, tort or otherwise) for the loss or damage.
8.8. GILLESPIE ADVISORY PTY LIMITED uses FeeSynergy for the purposes of managing our debt collection processes. The parties acknowledge that FeeSynergy can provide certain clients with loans to finance the payment of invoices. The Client acknowledges and agrees that any arrangement the Client has or may have with FeeSynergy in respect of any finance is solely with FeeSynergy. GILLESPIE ADVISORY PTY LIMITED is not responsible or liable for any obligations that may arise out of a relationship between the Client and FeeSynergy.
9.1. You agree to indemnify and hold harmless GILLESPIE ADVISORY PTY LIMITED against any, and all losses, claims, costs, expenses, actions, demands, damages, liabilities, or any other proceedings, whatsoever incurred by GILLESPIE ADVISORY PTY LIMITED in respect of any claim by a third party arising from or connected to any breach by you of your obligations under these Terms and/or the Engagement Letter.
9.2. GILLESPIE ADVISORY PTY LIMITED shall not be liable for any losses, claims, expenses, actions, demands, damages, liabilities, or any other proceedings arising out of reliance on any information provided by you or any of your representatives, which is false, misleading, or incomplete. You agree to indemnify and hold harmless GILLESPIE ADVISORY PTY LIMITED from any such liabilities we may have to you or any third party as a result of reliance by GILLESPIE ADVISORY PTY LIMITED on any information provided by you or any of your representatives, which is false, misleading or incomplete.
9.3. In the event of any inconsistency between clauses 8 and 9, clause 9 shall prevail.
10. Confidentiality & Privacy
10.1. Both parties acknowledge that they may, during the course of providing the Services and/or the Software, be exposed to or acquire information that is proprietary or confidential to the other party. Both parties agree to hold such information in strict confidence, and must not divulge such information to any person except:
(a) where required by law or judicial process,
(b) where required by any persons or bodies responsible for regulating that party’s business (including any regulatory or accounting profession supervisory authorities in Australia or elsewhere),
(c) to its employees or contractors for the purposes of providing the Services and/or the Software;
(d) to its legal advisers, accountants, auditors and other consultants of the party or its related bodies corporate requiring the information for the purposes of these Terms; or
(e) with the prior written consent of the party who supplies the information.
10.3. The Client specifically consents to GILLESPIE ADVISORY PTY LIMITED providing the Client’s personal information to the following third party providers:
(a) the software providers, for the purposes of us providing the Software subscription to you;
(b) Chargify, for the purposes of us managing the purchase of products, services and subscriptions;
(c) Axcelerate, for the purposes of us managing the purchase of products and services and to manage the training bookings and system; and
(d) FeeSynergy, for the purposes of managing the purchase of services, and our debt collection processes.
11. Intellectual Property
11.1. General: Title to, and all Intellectual Property Rights in the Services, the Website and any documentation relating to the Services remain the property of GILLESPIE ADVISORY PTY LIMITED (or its licensors).
11.2. Ownership of Data: Title to, and all Intellectual Property Rights in, the Data (which is provided by a Client) remains the Client’s property. However, your access to the Data is contingent on full payment of the GILLESPIE ADVISORY PTY LIMITED Fees when due. You grant GILLESPIE ADVISORY PTY LIMITED a licence to use, copy, transmit, store, and back-up your information and Data for the purposes of enabling you to access and use the Services and/or the Software and for any other purpose related to provision of Services to you.
11.3. Backup of Data: You must maintain copies of all Data inputted into the Software, our Website, our client portal and/or provided to us for the purposes of the Services.
GILLESPIE ADVISORY PTY LIMITED adheres to its best practice policies and procedures to prevent data loss but does not make any guarantees that there will be no loss of Data. GILLESPIE ADVISORY PTY LIMITED expressly excludes liability for any loss of Data no matter how caused.
11.4. Third-party applications and your Data. If you enable third-party applications for use in conjunction with the Software, our Services, our Website or client portal, you acknowledge that GILLESPIE ADVISORY PTY LIMITED may allow the providers of those third-party applications to access your Data as required for the interpretation of such third-party applications with the Software, our Services, our Website or client portal. GILLESPIE ADVISORY PTY LIMITED is not responsible for any disclosure, modification or deletion of your Data resulting from any such access by third-party application providers.
12. Notices and transmission of documents Electronically
12.1. If you ask us to transmit any document to you electronically, you agree to release us from any claim you may have as a result of any unauthorised copying, recording, reading or interference with that document after transmission, for any delay or non-delivery of any document and for any damage caused to your system or any files by the transmission (including by any computer virus).
12.2. You must not rely on electronically transmitted advice or opinion unless it is subsequently confirmed by fax or letter signed by a partner or authorised signatory of GILLESPIE ADVISORY PTY LIMITED.
12.3. If either party is required to give the other party a written notice pursuant to these Terms, then the written notice may be given by:
(a) being personally served on the party;
(b) being sent by pre-paid express post to the address listed in the Engagement Letter or listed in the purchase order (for Software subscriptions or other one off purchases); or
(c) electronic mail to the email address listed in the Engagement Letter or listed in the purchase order (for Software subscriptions or other one off purchases).
12.4. A notice will be deemed to be given and received:
(a) if personally served, at the time of service;
(b) if sent by pre-paid express post, three (3) Business Days after it was posted;
(c) if sent by electronic mail on a Business Day between 9am and 5pm (Business Hours): on the day it was sent; and
(d) if sent by electronic mail outside Business Hours, on the first Business Day after the day it was sent.
13. Dispute resolution
13.1. If at any time you would like to discuss with us how the Services can be improved or if you have a complaint about the Services of the Software subscription, you are invited to:
(a) telephone the partner or director identified in the Engagement Letter; or
(b) (if an Engagement Letter is not relevant to your circumstances) to email us at email@example.com.
13.2. We will investigate any complaint promptly and do what we can to resolve the difficulties.
13.3. If the problem cannot be resolved, the parties agree to enter mediation, or some other form of alternative dispute resolution, before commencing legal proceedings.
13.4. In the event of a dispute, or where Fees remain unpaid beyond the due date, we reserve the right to suspend provision of the Services and/or access to the Software until such time as the dispute is resolved or the Fees are paid. Suspension of the Services and/or access to the Software will not affect your obligation to pay us for Services rendered and/or Software subscriptions provided to the date of suspension.
13.5. For more information on dispute resolution in respect of Advisory Services see: http://www.gillespieadvisory.com.au/dispute-resolution
14. Force majeure
14.1. Excluding any payment obligations which must always be adhered to, if the performance of these Terms and/or the Engagement Letter by a party, is prevented or restricted by reason of fire, storm, flood, earthquake, war, labour dispute, transportation embargo, law, order, medical/health pandemic, or directive of any government (including Federal, State or Territory health orders), or any other act or condition beyond the reasonable control of that party, then the party is excused from such performance to the extent of the same, but will use their best efforts to avoid or remove the causes of non- performance and to cure and complete performance with the utmost dispatch.
15. Governing law and jurisdiction
15.1. Unless otherwise specified in the Engagement Letter, these Terms and all aspects of our engagement and our performance of the Services and/or the provision of the Software are governed by, and construed in accordance with the Australian Capital Territory. The Client agrees to irrevocably submit any disputes arising under these Terms or the Engagement Letter to the exclusive jurisdiction of the Courts of the Australian Capital Territory.
16.1. No variation of the Engagement Letter (excluding variations to the Fees described in clause 6) will be valid unless confirmed in writing by authorised signatories of both parties (digital or otherwise).
16.2. These Terms may be varied by GILLESPIE ADVISORY PTY LIMITED in its absolute discretion from time to time, provided it has provided the Client at least thirty (30) days notice before the variations take effect.
17.1. In these Terms and the Engagement Letter, unless the context requires otherwise:
(a) “Advisory Services” mean:
(i) financial planning advice,
(ii) personal insurance advice (set out in a Statement of Advice or Record of Advice);
(iii) accounting and compliance services;
(iv) credit advice and services (set out in a Credit Proposal Disclosure);
which are provided by us pursuant to an Engagement Letter;
(b) “Business Day” means a day on which trading banks are open for ordinary business in the Australian Capital Territory;
(c) “Client” means the person or entity engaging GILLESPIE ADVISORY PTY LTD to provide them with Software and/or Services;
(d) “Data” means any data, information, materials, text, graphics, images or works of authorship of any kind, information (including personal information) and other materials;
(e) “Engagement Letter” means the letter or document issued by us to the Client (including for example a Statement of Advice, Record of Advice, Credit Proposal Disclosure or Authority to Proceed) outlining the scope of the Services, any special conditions attaching to the Services and which provides an estimate of the Fees;
(f) “Fee” means the fees payable for the Software and/or the Services which are set out on our Website and (for Advisory Services) which are set out in our Engagement Letter;
(g) “GST” means the goods and services tax as imposed by the GST Law together with any related interest, penalties, fines or other charge;
(h) “GST Law” means A New Tax System (Goods and Services Tax) Act 1999, or, if that Act does not exist for any reason, means any Act imposing or relating to the imposition or administration of a goods and services tax in Australia and any regulation made under that Act;
(i) “Intellectual Property Rights” means all intellectual property rights including current and future registered and unregistered rights in respect of copyright, designs, circuit layouts, trademarks, trade secrets, know-how, confidential information, patents, invention and discoveries and all other intellectual property as defined in article 2 of the convention establishing the World Intellectual Property Organisation 1967 and “Intellectual Property” has a corresponding meaning;
(j) “Services” mean the Advisory Services that we have proposed to provide to the Client as detailed in the Engagement Letter and/or any other service offered by us (and selected by the Client) for example, establishment of an off-the-shelf company, establishment of a discretionary trust;
(k) “Software” means the online software subscriptions offered by us from time to time under our partner/reseller relationships, (eg MYOB, Xero, Reckon, QuickBooks etc), and more specifically the software subscription/s chosen by the Client from time to time; and
(l) “Website” means http://www.gillespieadvisory.com.au/ and https://www.ausmanagement.com.au/ and https://gillespiefinancedirections.com.au/.
17.2. In the interpretation of these Terms, unless the contrary intention appears:
(a) a reference to:
(i) one gender includes the others;
(ii) the singular includes the plural and the plural includes the singular;
(iii) a “person” includes an individual, the estate of an individual, a body politic, a corporation, an association (incorporated or unincorporated) and a statutory or other authority;
(iv) a party includes the party’s executors, administrators, successors and assigns; and
(v) a statute, regulation, proclamation, ordinance or by-law includes all statutes, regulations, proclamations, ordinances or by-laws amending, consolidating or replacing it;
(b) no provision of these Terms or an Engagement Letter will be construed adversely against us solely on the ground that we were responsible for preparing them;
(c) where words or phrases are given a defined meaning, any other part of speech or other grammatical form of those words or phrases have a corresponding meaning;
(d) a reference to "currency", "A$", "$A", "dollar" or "$" is a reference to Australian currency;
(e) “including" and similar expressions are not and must not be treated as words of limitation; and
(f) headings and tables of contents are inserted for convenience only and have no effect on interpretation.
Version 1.0 November 2021