Terms and Conditions of Trade
- 1.1 “Rucker Financial” means Rucker DWC Pty Ltd ATF Rucker DWC Unit Trust T/A Rucker Financial, its successors and assigns, or any person acting on behalf of, and with the authority of, Rucker DWC Pty Ltd ATF Rucker DWC Unit Trust T/A Rucker Financial
- 1.2 “Client” means the person/s or any person acting on behalf of and with the authority of the Client requesting Rucker Financial 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 part of a Trust, shall be bound in their capacity as a trustee; and(c) includes the Client’s executors, administrators, successors and permitted assigns.
- 1.3 “Services” mean all Services provided by Rucker Financial to the Client at the Client’s request from time to time.
- 1.4 “Documentation” means any goods, documents, designs, drawings or materials supplied, consumed, created or deposited incidentally by Rucker Financial in the course of it conducting, or providing to the Client, any Services.
- 1.5 “Fees” means the price payable (plus any GST where applicable) for the Services as agreed between Rucker Financial and the Client in accordance with clause 9 of this contract.1.6 “GST” means Goods and Services Tax (GST) as defined within the “A New Tax System (Goods and Services Tax) Act 1999” (Cth).
- 2.1 The Client is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions upon written acceptance of the Services as outlined in the Proposal to be provided by Rucker Financial. By signing acceptance of the Terms and Conditions contained herein the Client acknowledges and accepts that personal information may be stored by Rucker Financial’s external service providers in accordance with clause 23.
- 2.2 These terms and conditions may only be amended with both parties in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the Client and Rucker Financial
- 2.3 None of Rucker Financial’s agents or representatives are authorised to make any representations, statements, conditions or agreements not expressed by the manager of Rucker Financial in writing nor is Rucker Financial bound by any such unauthorised statements.
- 2.4 On completion of any Services Rucker Financial will retain Documentation as follows for:
(a) Meeting of Members and Directors – five (5) years from the date of the last entry;
(b) Financial Records and Audit Files – seven (7) years from the date of the Director’ report or, where an audit has been conducted, the auditor’s report;
(c) Taxation Records – five (5) years after the date on which they were prepared or obtained;
(d) Superannuation Funds Records – ten (10 years after the auditor concludes the audit or review of the financial statements.
Thereafter, unless separate arrangements have been made, Rucker Financial may destroy or erase the documents and records created and/or produced by Rucker Financial during the course of the engagement (except where provided by law) and documents addressed to Rucker Financial remain the property of Rucker Financial in accordance with clause 13.
- 2.5 Rucker Financial 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 9 of the Electronic Transactions (Victoria) Act 2000 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 any may contain viruses. Rucker Financial 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.
- 3.1 The Client shall give Rucker Financial 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 and contact phone or fax number/s, change of trustees or business practice). The Client shall be liable for any loss incurred by Rucker Financial as a result of the Client’s failure to comply with this clause.
- 4.1 The Services shall be as described in the Proposal provided by Rucker Financial to the Client.
- 4.2 These terms and conditions are to be read in conjunction with Rucker Financial’s Proposal and/or with the Terms and Conditions posted on Rucker Financial’s website. If there are any inconsistencies between these documents then the terms and conditions contained in this document shall prevail.
- 4.3 The purpose of these Services is to assist in the management of the Client business and to fulfil the business’ statutory obligations. Rucker Financial’s procedures use accounting expertise to, collect, classify and summarise the financial information which the Client provides into a financial report but Rucker Financial procedure will not include verification or validation.
- 4.4 Rucker Financial understands that an audit of the financial statement is not required and therefore no assurance will be expressed.
- 4.5 This engagement will be conducted in accordance with the relevant standards and ethical requirements in accordance with the Institute of Chartered Accountants in Australia and New Zealand and the CPA of Australia.
- 4.6 Rucker Financial’s team members will be assigned to undertake the agreed Services, according to the level of qualification appropriate for the assignment. All work is reviewed by fully qualified leaders who are subject to ongoing professional education requirements.
- 4.7 Rucker Financial will work with the Client to ensure the agreed deadlines are achieved. If Rucker Financial anticipates that there will be a delay in the completion of their Services, Rucker Financial will contact the Client.
- 4.8 As the special purpose financial report will be prepared exclusively for the Client’s benefit Rucker Financial will rely on the Client for both the completeness and accuracy of the information supplied to them and the Client is solely responsible to users of the special purpose financial report compiled by Rucker Financial. This includes responsibility for the maintenance of adequate accounting records, an adequate internal control structure and the selection and application of appropriate accounting policies.
- 4.9 The Australian taxation system is based upon self-assessment. Therefore, it will be necessary for the Client to maintain the appropriate receipts, dockets, cash register tapes and other original items to substantiate any claims for deductions that you might make. Be aware that the Client’s accounts and tax returns may be subject to tax audit and that penalties apply for incorrect returns. Should the Client be unsure of their responsibilities in this area Rucker Financial would be available to offer some advice.
- 4.10 The extent of Rucker Financial Services will be limited exclusively to those agreed with the Client. As a result:
(a) the Client is responsible for the completeness and accuracy of information provided to Rucker Financial, and the Client is solely responsible to users of the special purpose financial report compiled by Rucker Financial (this includes responsibility for the maintenance of adequate accounting records, an adequate internal control structure and the selection and application of appropriate accounting policies);
(b) the information will be prepared in accordance with information provided by the Client. Any known departures from this financial reporting framework will be disclosed within the financial report, and when considered necessary, will be mention in Rucker Financials compilation report. If (for any reason) Rucker Financial is unable to complete the compilation of the Client’s special purpose financial report, or Rucker Financial considers the information to be misleading, Rucker Financial may refer to such matters without Rucker Financial’s compilation report or may determine not to issue a report; and
(c) no audit or review or internal controls or the Client’s accounting system will be performed, and accordingly, no assurance will be expressed; and
(d) Rucker Financial’s engagement cannot be relied upon to disclose irregularities, including fraud, illegal acts and errors in the Client’s systems, which may occur. However, Rucker Financial will inform the Client of any such matters that come to Rucker Financial’s attention.
- 5.1 The Client agrees to be linked to Rucker Financials practice in relation to all income tax types to enable Rucker Financial to obtain information regarding outstanding taxes. This will enable Rucker Financial to best serve the Client in dealings with the ATO. Rucker Financial address will be used by the ATO for service of notices and Rucker Financial is responsible for checking tax assessments. Rucker Financial shall also endeavour to advise the amounts and due dates of tax instalments. However, the responsibility for paying the correct tax and paying on time rests with the Client. Any penalties arising from lateness, errors, wrong estimates or for any other reason are payable by the Client’s organisation as the taxpayer.
- 6.1 Any engagement to prepare and lodge the Client’s GST return will be the subject of a separate agreement. Rucker Financial shall however endeavour to reconcile the Client’s GST returns to the Client’s financial statements and advise the Client of any discrepancy.
- 7.1 The Client acknowledges Rucker Financial’s end of year procedures and confirms that the Client will supply all the information required to complete the appropriate returns including Fringe Benefits Tax, Goods and Services Tax, and state taxes such as Land Taxes and other State and Federal Taxes.
- 7.2 Rucker Financial are authorised to prepare and file the organisation’s Income Tax Return (and also any Returns required for associated parties as you require) from the information and records supplied to Rucker Financial. However, the Client is responsible for meeting the Client’s tax obligations and for any penalties imposed by the ATO for non-compliance with those obligations.
- 7.3 The Client understands that Rucker Financial is responsible for the preparation and filing of the organisation’s Company Statement, when applicable, with the Australian Securities and Investment Commission from information supplied by the Client, as well as the preparation of any shareholders and directors resolutions you may request and to assist with the maintenance of the statutory records. Where appropriate, the Client may request Rucker Financial to act as the Client’s registered office.
- 8.1 The Client agrees to pay for the Services described in the Proposal.
- 8.2 The Client shall provide promptly to Rucker Financial all reasonable and necessary assistance, including access to all information which Rucker Financial considers to be relevant to the engagement, so as to enable Rucker Financial to provide the Services. Furthermore, the Client shall update information provided by it to Rucker Financial where there has been a material change to that information which affects the scope of performance by Rucker Financial of the Services.
- 9.1 At Rucker Financial’s sole discretion:
(a) the Fees shall be as indicated on invoices provided by Rucker Financial to the Client in respect of Services provided; or
(b) (where the Client is on a “Fixed Price Agreement”), the Client is required to pay monthly Fees in advance for the on-going provision of the Services to Rucker Financial by Client as stipulated in this agreement; or
(c) the Fees as calculated at the date of provision of the Services in accordance with Rucker Financial’s current rate schedule; or
(d) Rucker Financial’s estimated Fees, which shall be indicated on Rucker Financial’s Proposal and is based on the information available to Rucker Financial at that date. The Fees are an estimate only, and not a quotation, and are subject to change; or
(e) Rucker Financial’s quoted price (subject to clause 9.2) which will be valid for the period stated in the quotation or otherwise for a period of twenty-eight (28) days.
- 9.2 Rucker Financial’s schedule of rates will be proportionately charged for work involving shorter periods less than an hour. Rucker Financial Fees are structured in 6 minute unit (e.g. the time charged for an attendance will be either round up or down to the nearest 6 minute increment to establish the number of units to be charged).
- 9.3 It is not possible at this time to provide an accurate estimate of the total costs. This estimate is based on the information available to Rucker Financial at this time. It may, and probably will, change when more information is available to Rucker Financial.
- 9.4 The major factors which will affect the estimate are:
(a) accuracy of MYOB or Xero files and documentation provided; and
(b) complexity of the inter-relations, transactions and corporate structure between the parties, etc.
- 9.5 Rucker Financial reserves the right to change the Fees in the event of a variation to Rucker Financial’s Proposal.
- 9.6 Time for payment for the Services being of the essence, the Fees will be payable by the Client on the date/s determined by Rucker Financial, which may be:
(a) on completion of the Services; or
(b) by way of instalments/progress payments in accordance with Rucker Financial’s payment schedule;
(c) the date specified on any invoice or other form as being the date for payment; or
(d) failing any notice to the contrary, the date which is fourteen (14) days following the date of any invoice given to the Client by Rucker Financial.
- 9.7 Payment may be made by cash, cheque, bank cheque, ezidebit, electronic/on-line banking, credit card (plus a surcharge may apply per transaction), or by any other method as agreed to between the Client and Rucker Financial
- 9.8 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 Rucker Financial nor to withhold payment of any invoice because part of that invoice is in dispute.
- 9.9 Unless otherwise stated the Fees do not include GST. In addition to the Fees the Client must pay to Rucker Financial an amount equal to any GST Rucker Financial must pay for any provision of Services by Rucker Financial under this contract or any other agreement. 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.
10.1 The Fixed Price Agreement shall continue for an annual term and, upon expiration of this term, will continue on an annual basis thereafter, unless cancelled by way of the Client providing Rucker Financial with fourteen (14) days’ written notification of its intention to do so. Following receipt of notice from the Client, the provision of the Services to the Client by Rucker Financial shall cease at the end of the notification period and the Client must reimburse Rucker Financial (on a pro rata calculation basis) for any use of the Services above its Fixed Price Agreement allowance.
- 11.1 Any time specified by Rucker Financial for provision of the Services is an estimate only and Rucker Financial will not be liable for any loss or damage incurred by the Client as a result of any delay. However, both parties agree that they shall make every endeavour to enable the Services to be provided at the time and place as was arranged between both parties. In the event that Rucker Financial is unable to provide the Services as agreed solely due to any action or inaction of the Client then Rucker Financial shall be entitled to charge a reasonable fee for re-providing the Services at a later time and date.
- 11.2 Rucker Financial may provide the Services by separate instalments. Each separate instalment shall be invoiced and paid for in accordance with the provisions in these terms and conditions.
- 11.3 Where the Services are provided on a subscription basis, the provision of the Services shall continue for the term stipulated on Rucker Financial’s quotation and, upon expiration of this term, will continue on a monthly basis, unless the terminated in accordance with clause 21.3.
- 12.1 Irrespective of whether Rucker Financial 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 Rucker Financial may repossess the Documentation.
- 13.1 The Client acknowledges and agrees that the Client’s obligations to Rucker Financial for the provision of the Services shall not cease, and ownership of any Documentation shall not pass, until:
(a) the Client has paid Rucker Financial all amounts owing for the particular Services; and
(b) the Client has met all other obligations due by the Client to Rucker Financial in respect of all contracts between Rucker Financial and the Client.
- 13.2 Receipt by Rucker Financial 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 Rucker Financial’s ownership or rights in respect of the Services, and this contract, shall continue.
- 13.3 It is further agreed that, until ownership passes in accordance with clause 13.1:
(a) the Client is only a bailee of the Documentation and must return the Documentation to Rucker Financial immediately upon request by Rucker Financial;
(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 Rucker Financial;
(c) the Client irrevocably authorises Rucker Financial to enter any premises where Rucker Financial believes the Documentation are kept and recover possession of the Documentation.
- 14.1 In this clause financing statement, financing change statement, security agreement, and security interest have the meaning given to them by the PPSA.
- 14.2 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 Rucker Financial to the Client; and
(b) all Documentation will be supplied in the future by Rucker Financial 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 Rucker Financial for Services – that have previously been provided and that will be provided in the future by Rucker Financial to the Client.
- 14.3 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 Rucker Financial 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 14.2(a)(i) or 14.2(a)(ii);
(b) indemnify, and upon demand reimburse, Rucker Financial 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 registration made thereby;
(c) not register a financing change statement in respect of a security interest without the prior written consent of Rucker Financial;
(d) not register, or permit to be registered, a financing statement or a financing change statement in relation to the registration in favour of a third party without the prior written consent of Rucker Financial.
- 14.4 Rucker Financial 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.
- 14.5 The Client waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
- 14.6 The Client waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
- 14.7 Unless otherwise agreed to in writing by Rucker Financial, the Client waives their right to receive a verification statement in accordance with section 157 of the PPSA.
- 14.8 The Client must unconditionally ratify any actions taken by Rucker Financial under clauses 14.2 to 14.5.
- 14.9 Subject to any express provisions to the contrary nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.
- 15.1 In consideration of Rucker Financial agreeing to provide the 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).
- 15.2 The Client indemnifies Rucker Financial from and against all Rucker Financial’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising Rucker Financial’s rights under this clause.
- 15.3 The Client irrevocably appoints Rucker Financial and each director of Rucker Financial as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 15 including, but not limited to, signing any document on the Client’s behalf.
- 16.1 The Client must inspect Rucker Financial’s Services on completion and must within seven (7) days notify Rucker Financial in writing of any evident defect in the Services provided or of any other failure by Rucker Financial to comply with the scope of the Services which Rucker Financial was to provide (as specified in Rucker Financial’s Letter of Engagement). The Client must notify any other alleged defect in Rucker Financial’s Services as soon as is reasonably possible after any such defect becomes evident. Upon such notification the Client must allow Rucker Financial to inspect/review the Services that were provided.
- 16.2 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”).
- 16.3 Rucker Financial acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.
- 16.4 Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, Rucker Financial makes no warranties or other representations under these terms and conditions including, but not limited to, the quality or suitability of the Services. Rucker Financial’s liability in respect of these warranties is limited to the fullest extent permitted by law.
- 16.5 If the Client is a consumer within the meaning of the CCA, Rucker Financial’s liability is limited to the extent permitted by section 64A of Schedule 2.
- 16.6 If Rucker Financial is required to rectify, re-provide, or pay the cost of re-providing the Services under this clause or the CCA, but is unable to do so, then Rucker Financial 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 which have been provided to the Client which were not defective.
- 17.1 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 Rucker Financial’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
- 17.2 If the Client owes Rucker Financial any money the Client shall indemnify Rucker Financial from and against all costs and disbursements incurred by Rucker Financial in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, Rucker Financial’s contract default fee, and bank dishonour fees).
- 17.3 Further to any other rights or remedies Rucker Financial may have under this contract, if the Client has made payment to Rucker Financial is subsequently reversed, the Client shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by Rucker Financial under this clause 17 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.
- 17.4 Without prejudice to Rucker Financial’s other remedies at law Rucker Financial shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to Rucker Financial shall, whether or not due for payment, become immediately payable if:
(a) any money payable to Rucker Financial becomes overdue, or in Rucker Financial’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 Rucker Financial;
(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.
- 18.1 Any advice that Rucker Financial 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.
- 18.2 Unless Rucker Financial 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.
- 18.3 Rucker Financial is not responsible to any other party other than the Client, who is provided with or obtains a copy of Rucker Financial’s advice.
- 18.4 Rucker Financial’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, Rucker Financial 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.
- 18.5 The Client acknowledges that the signed copy of Rucker Financial’s final advice is the definitive version.
- 18.6 Sometimes circumstances may change after Rucker Financial has provided their final advice to the Client. If this happens Rucker Financial will not update any final advice it has provided to the Client under these terms and conditions. If the Client would like Rucker Financial to update their final advice, they must contact Rucker Financial and both parties can discuss a suitable term of engagement with the Client.
- 18.7 Rucker Financial compilation reports are prepared exclusively for the Client’s internal use and benefit only, unless stated otherwise in writing, and therefore Rucker Financial disclaims any assumption of responsibility for any reliance on Rucker Financials report by any party other than the Client’s organisation, and:
(a) Rucker Financial’s report will contain a disclaimer to this effect; and
(b) no person should reply on the report without having an audit or review conducted.
- 19.1 Both the Client and Rucker Financial agree 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.
- 19.2 Exceptions to clause 19.1 will be disclosures to legal advisers, disclosures required by law, and disclosures necessary for the proper performance of the Services.
- 19.3 Where Rucker Financial 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 Rucker Financial, and shall only be used by the Client at Rucker Financial’s discretion.
- 19.4 The Client warrants that any software, spreadsheets, databases, electronic tools or instructions provided by the Client to Rucker Financial will not cause Rucker Financial to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify Rucker Financial against any action taken by a third party against Rucker Financial in respect of any such infringement.
- 19.5 Whether Rucker Financial 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.
- 20.1 The conduct of this engagement shall be in accordance with the standards and ethical requirements covered by the Institute of Chartered Accountants in Australia and New Zealand, and CPA Australia which monitor compliance with Professional Standards by their members which means that information acquired by Rucker Financial in the course of the engagement is subject to strict confidentiality requirements. That information will not be disclosed by Rucker Financial to other parties except as required or allowed for by law or professional standards, or with your express consent.
- 20.2 Rucker Financial files may, however, be subject to review as part of the quality control review program by the CPA Australia which may on occasion monitor Rucker Financial’s Clients records. The Client acknowledges that, if requested, Rucker Financial files relating to this engagement of Services will be made available upon request. Should this occur, Rucker Financial will advise the Client.
- 20.3 It is understood and agreed that:
(a) the Client will provide Rucker Financial with accurate and complete information necessary to compile the Client’s financial statements and income tax return;
(b) the responsibility for the accuracy and completeness of the assertions in the financial statements and/or taxation return remains with the Client;
(c) each page of the financial statements will be conspicuously marked as being unaudited;
(d) the Client will attach Rucker Financial’s disclaimer when distributing the financial statements to the Australian Taxation Office (ATO) financial institutions or other parties and acknowledge that the financial statements prepared by Rucker Financial is for the Client’s purpose only;
(e) the Client accept responsibility for;
(i) all records and information supplied to Rucker Financial; and
(ii) any failure to supply Rucker Financial with relevant records and information;
(f) the Client grant Rucker Financial full authority to contact any organisation (including the Client’s Bank and the ATO) for the purposes of obtaining information necessary to complete the Client’s tax return and the financial statements. The Client acknowledges that this information would not otherwise be available due to the Privacy Act restrictions, but the Client gives Rucker Financial full authority for this statement to be used as written confirmation of the Client’s agreement to Rucker Financial obtaining information for any organisation from the above mentioned purposes.
- 21.1 Without prejudice to any other remedies Rucker Financial may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions Rucker Financial may suspend or terminate the provision of Services to the Client. Rucker Financial will not be liable to the Client for any loss or damage the Client suffers because Rucker Financial has exercised its rights under this clause.
- 21.2 Rucker Financial may cancel any contract to which these terms and conditions apply, or cancel the provision of Services at any time before the Services have commenced, by giving written notice to the Client. On giving such notice Rucker Financial shall repay to the Client any money paid by the Client for the Services. Rucker Financial shall not be liable for any loss or damage whatsoever arising from such cancellation.
- 21.3 In the event that the Client cancels this contract, or the provision of the Services by Rucker Financial, the Client shall be liable for any and all loss incurred (whether direct or indirect) by Rucker Financial as a direct result of the cancellation (including, but not limited to, any loss of profits).
- 22.1 The Client agrees for Rucker Financial to obtain from a credit reporting body (CRB) a credit report containing personal credit information (e.g. name, address, D.O.B, occupation, previous credit applications, credit history) about the Client in relation to credit provided by Rucker Financial.
- 22.2 The Client agrees that Rucker Financial 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.
- 22.3 The Client consents to Rucker Financial being given a consumer credit report to collect overdue payment on commercial credit.
- 22.4 The Client agrees that personal credit information provided may be used and retained by Rucker Financial 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.
- 22.5 Rucker Financial 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.
- 22.6 The information given to the CRB may include:
(a) personal information as outlined in 22.1 above;
(b) name of the credit provider and that Rucker Financial 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 Rucker Financial has been paid or otherwise discharged and all details surrounding that discharge (e.g. dates of payments);
(g) information that, in the opinion of Rucker Financial, 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).
- 22.7 The Client shall have the right to request (by e-mail) from Rucker Financial:
(a) a copy of the information about the Client retained by Rucker Financial and the right to request that Rucker Financial correct any incorrect information; and
(b) that Rucker Financial does not disclose any personal information about the Client for the purpose of direct marketing.
- 22.8 Rucker Financial 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.
- 22.9 The Client can make a privacy complaint by contacting Rucker Financial via e-mail. Rucker Financial 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.
- 22.10 Rucker Financial undertakes to maintain strict confidentiality over the Financial Statements and records in Rucker Financial’s possession (including diary notes, working papers, etc.), which must not be delivered to any other person without the prior consent of the Client excepting by process of law.
- 23.1 Rucker Financial uses a managed service via hardware and software known as “Software as a Service” (SaaS) accounting model, a Client Management Software, therefore, the Client’s data and person information is stored on servers domiciled in Australia. Rucker Financial software provider’s servers, including data protection and back-up servers, are hosted by a specialist hosting service provider, Macquarie Telecolm located in Sydney.
- 23.2 In addition to clause 23.1 data is replicated to Rucker Financial’s service provider’s two (2) separate data centres (Rackspace and Amazon (AWS)) a cloud infrastructure domiciled in Australia, DR site with backups of 10 minute intervals with Rucker Financial’s database undergoing a full back-up daily..
- 23.3 Rucker Financial’s servers and firewalls are monitored 24/7 365 days of the year in a guarded location, and provide multiple power and internet redundancies.
- 23.4 Passwords are encrypted and all inbound and outbound communications through Rucker Financial’s service providers are encrypted through 256 bit TLS and the https certificate between Client and Server prevents anyone from hacking the Client’s connection. No one can access the Client’s data unless Rucker Financial provides access to them via the software system. With regards to security, files can only be uploaded and deleted via the software Interface and all access to the Client’s files is over HTTPS.
- 23.5 Any further information in respect of the Client’s storage of personal information through Rucker Financial’s external managed services is a available at any time upon request.
- 24.1 Where the Client has left any of the Client’s documentation with Rucker Financial for Rucker Financial to provide any Services in relation to that documentation and Rucker Financial has not received or been tendered the whole of the Fees, or the payment has been dishonoured, Rucker Financial shall have:
(a) a lien on the documentation; and
(b) the right to retain the documentation whilst Rucker Financial is in possession of the documentation until such time as payment has been made in full; and
(c) the lien of Rucker Financial shall continue despite the commencement of proceedings, or judgment for the Fees having been obtained; and
(d) Rucker Financial 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.
- 25.1 Except as is specified in clause 16, the liability limitations of Rucker Financial, it partners, associates, and employees shall be as detailed in the CPA Australia and/or the Institute of Chartered Accountants in Australian and New Zealand.
- 25.2 The Client agrees, to the extent permitted by law, that the liability to the Client of Rucker Financial, its partners, associates and employees or contractors in any way arising from or connected with this engagement including, without limitation, liability for negligence, shall be limited to damages which under no circumstances shall exceed the amount of Professional Indemnity insurance cover carried by Rucker Financial
- 25.3 The Client agrees to indemnify Rucker Financial, 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 clauses 25.1 and 25.2 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 Rucker Financial
- 25.4 The Client acknowledges and accepts that Rucker Financial shall, without prejudice, accept no liability in respect of any alleged or actual error(s) and/or omission(s):(a) resulting from an inadvertent mistake made by Rucker Financial in the formation and/or administration of this contract; and/or(b) contained/omitted in/from any literature (hard copy and/or electronic) supplied by Rucker Financial in respect of the Services.
- 25.5 In the event such an error and/or omission occurs in accordance with clause 25.4, and is not attributable to the negligence and/or wilful misconduct of Rucker Financial; the Client shall not be entitled to treat this contract as repudiated nor render it invalid. CLIENT’S ACKNOWLEDGMENT OF THE LIMITED LIABILITY OBLIGATIONThe Client acknowledges and accepts that Rucker Financial have discussed the limitation of liability created by clause 25. The Client acknowledges that Rucker Financial has advised the Client that they may wish to obtain legal advice on all questions arising from the terms and conditions herein and, in particular, the limitation of liability provisions, because they may impact on the Client’s legal rights.
Client’s Initials ___________
- 26.1 It is Rucker Financial’s aim to obtain, either formally or informally, a regular assessment of Rucker Financial’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 Rucker Financial’s Office Manager at PO Box 401, Mitcham VIC 3132. If the Client is dissatisfied with the way any complaint is handled, they may report the matter to Australian Competition and Consumer Commission (ACCC) or any applicable regulatory body.
- 27.1 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 Rucker Financial may have notice of the Trust, the Client covenants with Rucker Financial 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 Rucker Financial (Rucker Financial 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.
- 28.1 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.
- 28.2 These terms and conditions, and any contract to which they apply, shall be governed by the laws of Victoria, the State in which Rucker Financial has its principal place of business, and are subject to the jurisdiction of the Melbourne Courts in that State.
- 28.3 Rucker Financial may licence and/or assign all or any part of its rights and/or obligations under this contract without the Client’s consent.
- 28.4 The Client cannot licence or assign without the written approval of Rucker Financial
- 28.5 Rucker Financial 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 Rucker Financial’s sub-contractors without the authority of Rucker Financial
- 28.6 The Client agrees that Rucker Financial may amend these terms and conditions by notifying 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 Rucker Financial to provide Services to the Client.
- 28.7 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.
- 28.8 Both parties warrant that they have the power to enter into this agreement and have obtained all necessary authorisations to allow them to do so, they are not insolvent and that this agreement creates binding and valid legal obligations on them.