R&D tax incentive services – R&D Cloud

Disclosures, terms & conditions and Privacy Collection Statement

DISCLOSURES

1. About R&D Cloud

What R&D tax incentive documents will PwC assist you to complete through R&D Cloud?

  • an R&D Application for registration of R&D activities with AusIndustry (Application)
  • an R&D Schedule for inclusion with your tax returns (Schedule)

You may provide these documents to AusIndustry, the Australian Taxation Office (ATO), a related body corporate or your tax agent or professional adviser. If you wish to disclose them to any other person please contact PwC.

Who is eligible to use R&D Cloud?

To be eligible to use R&D Cloud, you must be a corporation that is an Australian resident for income tax purposes, or a foreign corporation carrying on R&D activities through a Permanent Establishment in Australia (Company), which:

  • is able to make a minimum R&D claim of at least $20,000 in the relevant year
  • is not controlled by a tax exempt entity or entities

To use R&D Cloud, you also need to be eligible based on PwC’s client acceptance rules. We will use the answers you have provided to our questions to assist in determining your eligibility. We will advise you by email if you are not eligible. If you are eligible, we will proceed to provide you with tips and feedback about the Application and Schedule, as outlined below.

PwC at its discretion may refuse to process your R&D Cloud claim.

What assistance does PwC offer you to complete your R&D incentive documents?

Although PwC may advise you that your documents are ready for submission, the receipt of a R&D Tax Offset is not guaranteed. PwC makes no representation about whether or not you will receive an R&D Tax Offset. PwC may assess your eligibility for an R&D Tax Offset under a separatearrangement. Any such assessment may be subject to review by AusIndustry or the ATO as the relevant tax authorities.

You are responsible for the accuracy and completeness of the information that you input in to R&D Cloud, and for deciding which costs to claim when you are using R&D Cloud.

If at the end of the process of preparation of the Application and Schedule, these documents are not in PwC’s view prepared consistently with AusIndustry and ATO guidance, the R&D Cloud application will be discontinued. In that case you may, of course, obtain further assistance under a separate arrangement with PwC.

What is the cost?

See the “Fees” section of R&D Cloud Terms and Conditions of Use for more details.

What obligations apply to users of R&D? Cloud

Any individual (User) who uses R&D Cloud on your behalf must:

  • ensure that when using R&D Cloud or PwC’s Services, including answering questions or completing and signing the Application, they are authorised to do so on your behalf as your officer, tax agent, professional adviser or representative. By clicking to “Accept” the terms and conditions below, or by continuing to use R&D Cloud, the User confirms that they are authorised to act on your behalf
  • ensure that they respond accurately to all questions in R&D Cloud. The accuracy of the Application and Schedule prepared through R&D Cloud will depend on the accuracy and completeness of the responses that Users provide when using R&D Cloud. You are responsible for the completeness and accuracy of information supplied to us, whether through R&D Cloud or otherwise. We may rely on this information to provide Services to you and will not verify it in any way
  • familiarise themselves with, and comply with, the terms and conditions applicable to use of R&D Cloud as set out in clause 6 of the terms & conditions
  • ensure that they protect your login credentials and contact PwC immediately if they believe that those details have been compromised
  • provide accurate financial reports in relation to projects or activities identified for inclusion in the Application
  • confirm that the activities included in the Application were undertaken by or for you, and not to a significant extent for another entity
  • respond to any queries raised by PwC’s team in a timely manner
  • review the Schedule for accuracy and completeness and arrange for lodgement with your tax agent lodge the Application within 10 months of year end

2. Other important information

Basis of providing our Services

Our relating to tax or revenue laws are based on our understanding of current law and the current policy and practice of the ATO, AusIndustry or other relevant tax authority as at the time we provide the relevant deliverables. Tax and revenue laws, policies and systems are in a continuing state of reform which inevitably creates a degree of uncertainty. We will endeavour to bring areas of reform and uncertainty relevant to our Services to your attention but it is not possible for us to guarantee that we will identify or communicate all potential reforms or uncertainties of possible relevance to you.

R&D Cloud and Services under these Terms & Conditions are provided by the Australian firm of PricewaterhouseCoopers, which is a registered tax agent and a member of a global network of firms which operate in accordance with a Global Tax Code of Conduct. For example, this Code requires member firms to: 1) act in accordance with local laws and regulatory requirements at all times; 2) strive to apply the highest possible technical standards; and 3) comply with professional standards. The Services will be carried out in accordance with these principles.

Powers of tax authorities

It is important to keep in mind that our advice and positions taken in tax returns or other documents(including the Schedule and the Application) lodged with tax and revenue authorities are not beyond challenge by the relevant authority and that tax and revenue authorities may have wide-ranging powers of investigation and discovery.

Record Keeping

All tax and revenue laws in Australia require taxpayers to keep full and accurate records relating to their tax affairs. Penalties may be imposed if a taxpayer fails to comply with these requirements. Maintaining comprehensive records can also be beneficial in supporting a taxpayer’s position in a tax dispute as the onus of proof is with the taxpayer.

Records must generally be kept for five years after those records were prepared, obtained or the transaction to which they relate occurred, whichever is the later.

Self assessment

Tax authorities in Australia generally accept the information provided in a statement or return, and lodgement itself will in many cases create a deemed assessment of the amount disclosed in the return or statement. However, the tax authorities are empowered to:

  • ask for the information used to complete a statement or return.
  • amend an assessment where they believe there has been an underpayment, and impose penalties and interest in respect of the underpayment.
  • make any such amendment within a prescribed time limit (generally four years), except in the case of fraud or evasion where there is no time limit.

A taxpayer may request an amendment to an assessment or lodge an objection disputing an assessment (or amended assessment), but this must be done within certain time limits. The time limits depend on individual circumstances and may be up to four years from the date of the original assessment.

If there is an adverse decision on an objection, it may be appealed through the Administrative Appeals Tribunal and the court system.

Private Ruling or Finding

A “Private Ruling” or “Finding” is a written opinion from a tax authority on the application of relevant tax legislation to a specific situation. You may apply for a Private Ruling or Finding to obtain some certainty about how a tax or revenue law applies to you. A Private Ruling or Finding is generally binding on the authority. Tax authorities may decline to issue a Private Ruling or Finding in some circumstances.

For taxes administered by the ATO (such as income tax), if you disagree with a Private Ruling you may object against it. If you disagree with the objection decision you can appeal through the Administrative Appeals Tribunal or the court system. There are prescribed time limits for lodging objections and appeals, and these must be strictly complied with.

PwC seminars and publications

We will, from time to time, distribute tax related material to you in connection with current tax issues which we believe may be of interest to you and invite you to attend our seminars. Information and comments we provide in these materials and seminars will be of a general nature only, may not be appropriate to your circumstances and should not be used as a substitute for specific advice. We accept no responsibility or liability for the consequences of your use of information or materials provided in our publications or seminars.

Legal services or non-legal services

PwC is a regulated Multi-Disciplinary Partnership in certain States of Australia. Services will not be provided as legal services unless specifically disclosed as such to you. Services which are not provided as legal services may still be provided by partners or professional staff of PwC who are Australian Legal Practitioners (as defined in legislation regulating the provision of legal services in a State or Territory of Australia) who are acting in a capacity other than as an Australian Legal Practitioner (eg. as a registered tax agent). In these circumstances your, and PwC's, rights and obligations will be different to those arising had the services been provided to you as legal services. In particular, the relevant State legal profession legislation will not apply to the provision of those services.

TERMS & CONDITIONS

Set out below are the terms and conditions that, subject to PwC confirming that you are eligible, will apply to your use of R&D Cloud and PwC’s other Services (the “Services") provided in connection with R&D Cloud. PwC will check your eligibility based on the information you have provided so far using R&D Cloud. We will advise you by email if you are not eligible. If you are eligible, we will proceed to provide you with feedback about the Application and Schedule, as outlined below.

A contract with PwC in relation to PwC’s provision of the Services is not formed unless and until PwC confirms your eligibility; however, clauses 4, 5, 6 and 16 of the terms and conditions, relating to confidentiality, liability, use of electronic tools and data hosting, will have effect from when you click “Accept” on the terms and conditions.

If you are not eligible, PwC will advise you of this. You will not be able to use R&D Cloud to complete your Application and Schedule, and no contract with PwC relating to the Services will come into effect.

The terms & conditions below replace any earlier agreements, representations or discussions in connection with R&D Cloud. If there is a conflict between the terms & conditions below and our separate engagement letter for the provision of R&D Tax Incentive services (Engagement Letter), the terms & conditions set out in our Engagement Letter shall prevail.

Terms & Conditions of Use

1 Our Services

1.1 Scope – We will perform the Services provided to you with reasonable skill and care.

1.2 Changes – We may modify these terms & conditions to make changes from the current version of the terms & conditions (which is the version referred to above). We may make these changes at any time by incorporating a revised version into R&D Cloud or by otherwise notifying you. The modified terms & conditions will become effective upon incorporation into R&D Cloud or, if we notify you by email, as stated in the email message. By continuing to use the Services after the effective date of any modifications, you agree to be bound by the modified terms & conditions. It is your responsibility to check the terms & conditions for modifications. Any other changes to the Services or these terms & conditions must be agreed between us in writing.

1.3 Services for your benefit – Our Services are provided solely for your use for the purpose of preparation of an Application and Schedule (Deliverables). Except as required by law, or with our prior written consent, you may not:

a) show or provide a Deliverable to any third party or include or refer to a Deliverable or our name or logo in a public document; or

b) make any public statement about us or the Services.

We consent to you providing copies of Deliverables to the Australian Tax Office and to AusIndustry, and to your tax agent or professional adviser for the purposes of lodgement of the Schedule.

1.4 No liability to third parties - We accept no liability or responsibility to any third party in connection with our Services. You agree to reimburse us for any liability (including reasonable legal costs) we incur in connection with any claim by a third party arising from your breach of this agreement.

2 Your responsibilities

2.1 Generally – You agree to ensure we are permitted to use any third party information or intellectual property rights you require us to use to perform the Services.

2.2 Information – You are responsible for the completeness and accuracy of information supplied to us. We may rely on this information to perform the Services and will not verify it in any way.

2.3 Interdependence – Our performance depends on you also performing your obligations under this agreement. You agree we are not liable for any default to the extent it arises because you do not fulfil your obligations, or the responsibilities set out in these terms.

2.4 Records – You are responsible for retaining adequate documentation to substantiate the R&D claim, including R&D activities and expenditure.

2.5 Authorised Users – You are responsible to us for the performance of your obligations under this Agreement and will be fully responsible for all acts and omissions of your Authorised Users as fully as if they were your acts or omissions.

3 Fees

3.1 You agree to pay our fees on the basis set out in our separate engagement letter for the provision of R&D Tax Incentive services (Engagement Letter).

3.2 The fee for using R&D Cloud is an annual licence fee (Licence Fee), which becomes payable on the date you first use R&D Cloud and thereafter on each anniversary of that date.

The Licence Fee is payable in addition to any fee for R&D Tax Incentive services agreed with you under the terms of our Engagement Letter.

4 Confidentiality and privacy

4.1 Confidential information – We each agree not to disclose each other’s confidential information, except for disclosures required by law or confidential disclosures under our respective policies.

4.2 Privacy – Our approach to privacy is set out in our Privacy Policy, available at www.pwc.com.au/privacy. You agree to comply with the Privacy Act 1988 (Cth) when providing us with information. We agree to co-operate with each other in addressing our respective privacy obligations in connection with the Services.

5 Liability

5.1 Accountants scheme – Our partners are members or affiliate members of the Institute of Chartered Accountants in Australia (ICAA). Where ICAA schemes have been approved under professional standards legislation in force in Australian states or territories, our liability in connection with the Services (other than legal Services) is limited in accordance with those ICAA schemes. Legislation providing for apportionment of liability also applies. Please let us know if you would like a copy of a relevant scheme.

5.2 Liability cap where no scheme – Where our liability is not limited by a scheme, you agree our liability for all claims connected directly or indirectly with the Services (including claims of negligence) is limited to an amount equal to 10 times the fees payable for the Services, up to an overall maximum of $20 million.

5.3 Consequential loss – To the extent permitted by law, we exclude all liability for:

a) loss or corruption of data

b) loss of profit, goodwill, business opportunity or anticipated savings or benefits

c) indirect or consequential loss or damage.

5.4 No claims against employees – You agree not to bring any claim against any of our employees personally in connection with the Services. This includes claims in negligence but excludes claims of fraud or dishonesty. This clause is for the benefit of our employees. You agree that each of them may rely on it as if they were a party to this agreement. Each of our employees involved in providing the Services relies on the protections in this clause 5.4 and we accept the benefit of it on their behalf.

6 Electronic communications and other matters

6.1 Electronic communications – We each agree to take reasonable precautions to protect our own information technology systems, including implementing reasonable procedures to guard against viruses and unauthorised interception, access, use, corruption, loss or delay of electronic communications.

6.2 Electronic methods, processes or assets –We or other PwC firms (including PwC Advisory Australia Pty Ltd) may develop or use electronic methods, processes or assets (e.g. spreadsheets, databases, software) that we use in providing the Services. In relation to any of them that we permit you to use in connection with the Services, including use of R&D Cloud, you agree that:

a) they remain our or other PwC firms’ property, and no intellectual property in them is transferred to you under the terms of this agreement or otherwise.

b) we or other PwC firms developed them solely for our or their use, and to the extent permitted by us, for the use of our clients solely for the purposes described in them. You may not make any use of them other than for those purposes and on the terms and conditions set out in this agreement.

c) you use them at your own risk. We and other PwC firms give no express or implied warranties (and to the fullest extent permitted by law exclude all statutory warranties) in relation to any of them, including as to its performance or fitness for a particular purpose. We will not be liable in any way for any loss or damage arising from or in connection with them or their use or performance.

d) nothing in these terms of use excludes, restricts or modifies any right or remedy, or any cannot lawfully be excluded or limited. If any guarantee, warranty, term or condition is implied or imposed in relation to these terms of use under any applicable legislation and cannot be excluded (a “Non-Excludable Provision”), and we are able to limit your remedy for a breach of the Non-Excludable Provision, then our liability for breach of the Non-Excludable Provision is limited to one or more of the following at our option:

    i. in the case of goods, the replacement of the goods or the supply of equivalent goods, the repair of the goods, the payment of the cost of replacing the goods or of acquiring equivalent goods, or the payment of the cost of having the goods repaired; or
    ii. in the case of services, the supplying of the services again, or the payment of the cost of having the services supplied again.

e) you may not provide them or access to them to any third party without our consent or as set out in them. You must not copy, reproduce, translate, modify or alter them or do any act which infringes the copyright relating to them except as expressly authorised in writing by PwC from time to time.

f) you may not send, store or distribute any viruses, worms, Trojan Horses or other disabling code harmful to a network or system.

g) you must ensure that you and anyone who you permit to use them on your behalf uses reasonable efforts to prevent any unauthorised use of them, and will immediately notify us in writing of any unauthorised use that comes to your attention.

7 Subcontractors (including other PwC firms)

7.1 Subcontractors – We may use subcontractors, including other PwC firms (in Australia or overseas) to perform or assist us to perform the Services. Despite this, we remain solely responsible for the Services.

7.2 No claims against other PwC firms - No other PwC firm has any liability to you in connection with the Services or this agreement and you agree not to bring and to ensure none of your affiliates brings any claim (including in negligence) against any other PwC firm or its partners or employees in connection with the Services (including in connection with R&D Cloud) or this agreement. Any partner or employee of another PwC firm who deals with you in connection with the Services does so solely on our behalf.

7.3 Benefit of clause 7.2 - Clause 7.2 is for the benefit of other PwC firms and their partners and employees (each a beneficiary). You agree each beneficiary may rely on clause 7.2 as if they were a party to this agreement. Each beneficiary that provides or assists in providing the Services relies on the protections in clause 7.2 and we accept the benefit of clause 7.2 on their behalf.

7.4 Transfer of information - We use contractors or suppliers located in Australia and overseas to provide us with Services we use in performing Services and in our internal functions. Other PwC firms may be involved in our client relationship management and other admin systems and in quality reviews. You consent to information provided to us by you or on your behalf (including personal information and your confidential information) being transferred to those contractors and suppliers and to other PwC firms and our subcontractors, so long as they are bound by confidentiality obligations.

8 Filing and destruction of documents

If you leave documents or material with us, we may destroy them after seven years (except to the extent we are required to retain them by law).

9 Performing Services for others

Provided we do not disclose your confidential information, you agree that we may perform Services for your competitors or other parties whose interests may conflict with yours.

10 Termination

10.1 By notice – Either of us may terminate this agreement by giving the other at least 14 days’ notice in writing (unless it would be unlawful to do so). This agreement terminates on expiry of that notice.

10.2 Changes affecting independence – Changes to the law or other circumstances beyond our reasonable control may mean that providing the Services to you results in us ceasing to be independent of an audit client. If that happens, we may terminate this agreement immediately by giving you notice in writing.

10.3 Fees payable on termination – You agree to pay us for all Services we perform before termination on the basis set out in the Fees section of R&D Cloud.

10.4 Clauses applying after termination – The following clauses continue to apply after termination of this agreement: 1.3, 1.4, 2.3, 3, 4, 5, 6.2, 7, 8, 9, 10.3, 10.4, 11, 12, 13, 14, 15, 16 and 17.

11 Relationship

We are your independent contractor. You agree that we are not in a partnership, joint venture, fiduciary, employment, agency or other relationship with you. Neither of us has power to bind the other.

12 Corporations Act and SEC prohibitions

Nothing in this agreement applies to the extent that it is prohibited by the Corporations Act 2001 (Cth) or the rules of the US Securities and Exchange Commission.

13 Force majeure

Neither of us is liable to the other for delay or failure to fulfil obligations (other than an obligation to pay) to the extent that the delay or failure arises due to an unforeseen event beyond their reasonable control which is not otherwise dealt with in this agreement. Each of us agrees to use reasonable endeavours to remove or overcome the effects of the relevant event without delay.

14 Assignment

Neither of us may assign or deal with our rights under this agreement without the other’s prior written consent.

15 Applicable law

Unless our engagement letter states otherwise, the law applying to this agreement is the law of New South Wales. Both of us submit to the exclusive jurisdiction of the courts of that state and waive any right either of us may have to claim that those courts do not have jurisdiction or are an inconvenient forum.

16 Data Hosting

We use Amazon Web Servers, a third party provider of cloud-based data hosting, to host R&D Cloud. We will store the information in the cloud environment in an encrypted format. You acknowledge that any information inputted into R&D Cloud (including any personal information) will therefore be transferred to the hosting provider (who may in turn provide the information to other parties) (together, the Data Host), who may be located outside of Australia. The Data Host may not be subject to privacy obligations that are similar to the Australian Privacy Principles, and may be subject to a foreign law that could compel the disclosure of information (including personal information) to a third party, such as an overseas authority.

You agree that in no event shall PwC or its beneficiaries be liable for any loss of any kind (including loss of your data) arising from an act or omission (including a negligent or dishonest act or omission) of a Data Host, which may include the following:

a) R&D Cloud being subject to scheduled or unscheduled downtime;

b) the failure (or absence) of measures to secure the information against accidental or unlawful loss, access or disclosure;

c) suspension of access to R&D Cloud; or

d) erasure or modification of the uploaded information.

As an “End User” of the Data Host product, you agree not to do anything or omit to do anything that would give rise to liability of PwC (if it were our act or omission) under the AWS Customer Agreement available from http://aws.amazon.com/legal/ as modified from time to time (Customer Agreement), including without limitation by breaching the Acceptable Use Policy or other Policies (each as defined in that agreement).

17 Use of Compliance Vault

17.1 Compliance Vault - under this agreement, you may upload and store documents related to your R&D Cloud application through the use of the Compliance Vault, located at https://www.thevault.io (Vault Storage Feature). This clause 17 applies to your use of the Vault Storage Feature and takes precedence over the balance of the terms in this agreement, to the extent of any inconsistency.

17.2 Your Obligations - You may use the Vault Storage Feature provided that you:

a) only upload and store documents ((Materials) which relate to your R&D Cloud Application and are not offensive or defamatory and do not contravene any third party’s intellectual property rights, or any applicable law in force in Australia (including the Privacy Act 1988);

b) ensure that you have all the rights and permissions needed to upload the Materials; and

c) warrant that you are separately maintaining your own business and taxation records, as required by law and your policies.

17.3 Our Use - In relation to the Vault Storage Feature, we:

a) may modify, prevent access to, or delete content that we believe may be unlawful or contrary to this Agreement at any time at our discretion; and

b) may view the Materials at our discretion.

17.4 Liability- we agree to provide access to Vault Storage Feature free of charge. Despite clause 5, to the extent permitted by law, we are not liable for any claims connected directly or indirectly with the provision of the Vault Storage Feature to you.

17.5 Termination – despite clauses 8 and 10, we may terminate your use of the Vault Storage Feature on 30 days prior written notice for any reason. After termination of your use of the Vault Storage Feature, you acknowledge that the Materials may be permanently deleted by us.

18 Definitions

In this agreement the following words and expressions have the meanings given to them below

18.1 affiliate – an entity which, directly or indirectly, controls or is controlled by or under common control with you

18.2 PwC firm – an entity or partnership which carries on business under a name which includes all or part of the name ‘PricewaterhouseCoopers’, or is otherwise within or a correspondent firm of the global network of PricewaterhouseCoopers firms, each of which is a separate and independent legal entity

18.3 this agreement – these terms & conditions

18.4 you – the Company

18.5 we, us, or PwC – the Australian firm of PricewaterhouseCoopers, a partnership formed in Australia.

User Confirmation

I have read these terms & conditions and accept them on behalf of the Company. I acknowledge and agree that the terms & conditions (other than clauses 4, 5, 6 and 16) will not have effect unless and until PwC confirms the Company’s eligibility to use R&D Cloud.

PRIVACY COLLECTION STATEMENT – USERS

In this statement a reference to “you” is a reference to a User of R&D Cloud who is an individual.

By using R&D Cloud, you agree to us using your personal information including sensitive information (as defined in the Privacy Act 1988), in accordance with our privacy policy, which is available at www.pwc.com.au/privacy, and this statement which you acknowledge you have read and understood.

Where you provide us with personal information about others, you agree to inform the individual that the information is being collected and why, how it will be used and the matters outlined in this statement.

Who do we collect the personal information from?

As a User of R&D Cloud your personal information (being information or an opinion about you) will be collected, held and used by us. You agree to provide accurate, complete and up to date information to us, and to keep that information up to date as it changes.

For what purposes do we collect personal information?

We may collect personal information about you for the purpose of performing our Services to you, and the purposes set out in our privacy policy. If you do not provide this information to us, we may not be able to do such things or may be restricted in the way we can do them.

Who may we disclose personal information to?

We may disclose your personal information to our practice and our service companies, regulators and other government bodies or as required by law, other firms within the PwC network, service providers, contractors and other organisations and persons set out in our privacy policy.

Disclosure overseas

In addition to disclosures permitted under our privacy policy, you consent to us disclosing your personal information to other firms within the PwC network, to service providers that provide services to us, and to any data host in relation to R&D Cloud. Any of these recipients of your personal information may be located outside Australia and may not be required to comply with the Australian Privacy Principles governing overseas disclosure. In that case, they will not be accountable under the Privacy Act 1988 (“Privacy Act”), and you will not be able to seek redress under the Privacy Act. Those recipients may not be subject to any privacy obligations similar to the Australian Privacy Principles or any privacy obligations. Where a recipient is located overseas, you may not be able to seek redress in the overseas jurisdiction or may experience significant difficulties in doing so. The overseas recipient may be subject to foreign laws that require it to disclose your personal information to a third party such as a government authority or regulator.

Our privacy policy explains how to contact our privacy officer, and our approach to requests, enquiries or complaints regarding personal information that we hold about you.