STANDARD TERMS OF ENGAGEMENT
These terms of engagement (“Terms”) are the standard terms which will apply in respect of all work carried out by us (White Label Systems Limited trading as My Advisor) for you, except to the extent that we otherwise agree with you in writing and excluding the authority to act when selling your business.
1. Scope of work and our role
1.1 The services we are to provide for you are outlined in our Letter of Engagement.
1.2 All matters will be carried out in accordance with applicable laws and our rules of professional conduct and by our terms of service.
1.3 We do not purport to be experts in all fields of business, and we will, where we consider it necessary or desirable to do so, secure advice on particular aspects of the engagement from other professionals. However, we will not advise on, and will not be responsible for, tax and legal issues in relation to the matter, but will, if you so request, assist you in obtaining such advice.
2. Fees and other charges
2.1 We will charge a fee which is reasonable for the services we provide to you. In determining our fee, we will take into account the hourly rates of our personnel who have worked on the engagement, as well as other relevant criteria, including:
(a) the skill, specialised knowledge and responsibility required;
(b) the time expended;
(c) the value of any property or money involved in a transaction;
(d) the importance of the matter to you;
(e) the complexity of the matter;
(f) the number and importance of the documents prepared or perused; and
(g) the urgency and circumstances in which the engagement is transacted.
2.2 If requested, we will give an estimate of the likely fees. However, this will be a guide only and not a fixed quotation, unless specifically agreed otherwise in our Letter of Engagement. Where we believe that an estimate is likely to be materially exceeded, we will endeavour to advise you and provide you with an updated estimate.
2.3 In providing services we may incur disbursements or have to make payments to third parties on your behalf. Disbursements include out-of-pocket expenses such as travel and accommodation costs, registration, courier costs, fees of agents, experts, and other professionals and similar. These will be included in our invoice to you when the expense is incurred. We may require an advance payment for the disbursements or expenses which we will be incurring on your behalf.
2.4 We will also invoice you for a standard service charge to cover general office services provided by us (for example, photocopying, faxes, telecoms charges, deliveries, and postage). Our charges for office services are generally established by reference to a scale of charges based on the fee value of the invoice.
2.5 GST (if any) is payable by you on our fees and charges. Unless otherwise stated, any fee estimate or fixed quotation will be exclusive of GST, disbursements, and service charges.
3. Billing and accounts
3.1 We will issue invoices as per your individual terms of engagement that have been signed by the relevant parties.
3.2 Invoices are payable as per the terms of the date of the invoice unless alternative arrangements have been made with us. If payment of our invoice by you is overdue, we may:
(a) not perform any further work for you until all unpaid invoices are paid in full;
(b) retain custody of any of your property (including documents or files) until all unpaid invoices are paid in full; and/or
(c) charge interest on any amount overdue at the rate of 15% per annum from the due date.
3.3 We usually ask you to pre-pay amounts to us, by way of an engagement retainer, to provide security for our fees and expenses.
3.4 You authorise us to:
(a) debit against amounts pre-paid by you; and
(b) deduct from any funds held on your behalf in our trust account, any fees, expenses, or disbursements for which we have provided an invoice.
3.5 Although you may expect to be reimbursed by a third party for our fees and expenses, and although our invoices may at your request or with your approval be directed to a third party, you remain responsible for payment to us if the third party fails to pay us.
4.1 We will hold in confidence all information concerning you or your affairs that we acquire during the course of the engagement for you. We will not disclose any of this information to any other person except to the extent necessary or desirable to enable us to carry out your instructions in regard to the engagement.
4.2 Confidential information concerning you will as far as practicable be made available only to those within our firm who are providing services for you.
4.3 We will of course not disclose to you, confidential information which we have in relation to any other client.
4.4 In most situations we will execute a specific confidentiality and non-disclosure agreement pertaining to the engagement.
5.1 Both parties may terminate the engagement at any time.
5.2 Notice of termination will be confirmed in writing.
5.3 If our engagement is terminated you must pay us all fees due up to the date of termination and all expenses incurred up to that date.
5.4 When our instructions on an engagement are completed, our engagement will end. We are not obliged to provide any further services related to that engagement.
6. Retention of files and documents
6.1 We retain the files we establish on an engagement, and any documents you leave with us (other than any documents we have advised you in writing we hold in safe custody for you), for at least seven years after completion or termination of the matter in a hard copy or electronic format. We may then destroy the files and documents without reference to you.
6.2 If you uplift your files or documents, we may make copies of them before giving them to you. We may charge for making copies.
7. Conflicts of interest
7.1 We have procedures in place to identify and respond to conflicts of interest. If a conflict of interest arises, we will advise you of this and our Rules of Conduct and Client Care.
7.2 If a legal conflict of interest arises, in relation to any matter on which you have engaged us, between your interests and those of any other client for whom we are also actively engaged, we will inform you as soon as possible. We reserve the right to terminate our engagement by you at any time if we consider that a conflict of interest has arisen or exists.
8. Duty of care
8.1 Our duty of care is to you and not to any other person. Before any other person may rely on our advice, we must expressly agree to this.
9. Trust account
9.1 We operate a third-party trust account for all funds which we receive from clients (except moneys received for payment of our invoices). If we are holding significant funds on your behalf request to lodge those funds [DA1] on interest-bearing deposit with a bank. In that case we will charge an administration fee of 5% of the interest derived. If we do deposit funds on your behalf, we may need you to provide further information to us to satisfy the bank’s requirements.
10. Electronic communications
10.1 Unless otherwise agreed with you, we may communicate with you and others by electronic means. As you will be aware, such communications are not secure and may be subject to unauthorised interception, interference, error, or virus. While we will take all reasonable steps to protect our communications from such issues, we will not accept any responsibility and will not be liable for any damage or loss if they occur.
10.2 Upon engagement with us we assume your email address is private and confidential and that you hold exclusive access to your email account, and it is deemed a confidential and secure means of communication, unless you expressly advise otherwise.
11. Client information
11.1 We must comply with our obligations under all laws binding on us, including anti-money laundering and countering financing of terrorism laws (“AML”). In order to do so, we may be required to conduct customer due diligence on you, persons acting on your behalf, and other relevant persons such as your beneficial owners or persons who have effective control of you and (in the case of a trust) the beneficiaries of the trust. We may not be able to act or continue acting for you, or to complete transactions for you, until this is completed. We may charge you a fee for our work in undertaking such customer due diligence together with any third-party due diligence.
11.2 You will ensure that any of the persons described in clause 11.1 in respect of whom we collect information are aware of and consent to this and to the provisions relating to personal information set out in clause 12. You will also ensure that all information provided to us is accurate. We are not responsible to you, or anyone else, for anything done or not done by us (including any provision of information by us to any third party or any withholdings made) in order to comply with our legal obligations.
11.3 We may perform monitoring, keep records and report any unusual or suspicious transactions where required in connection with AML or any other law.
11.4 We may be required to provide information about you, persons acting on your behalf, and other relevant persons to government agencies. We may not be permitted to tell you or such persons if we do provide such information. We may also be required to provide such information to banks with which we place your funds through our third-party trust account, and information provided to banks may be in turn be passed on by them to tax and other regulatory authorities in New Zealand and offshore.
11.5 We will periodically advise you what information and documents are required for the purposes described above. We may retain the information and documents, provide them to a bank or other entity to deal with in accordance with their terms, and disclose to them or to any enforcement or regulatory agency or Court as required by law.
11.6 We or the bank or other entity may suspend, terminate or refuse to enter into a business relationship and delay, block or refuse to process a transaction, and report it without notice if the required information or documents are not provided or it is suspected that the business relationship or transaction is unusual, may breach any applicable law, or may otherwise relate to conduct that is illegal or unlawful in any country.
11.7 We may request information from you in order to comply with any obligation under the US Foreign Account Tax Compliance Act.
12. Personal information
12.1 We will treat your personal information as confidential. We may need to disclose certain information to:
(a) our contractors or agents;
(b) other organisations including other parties to the matter, a Court and law enforcement and government agencies who process transactions or perform regulatory functions, but only to carry out your instructions or your engagement, to fulfil our professional duties, to exercise our rights under these Terms, or to comply with a legal requirement.
12.2 We may store personal information in any format we choose at our offices or at premises outside our offices, including data storage facilities or online storage located within or outside New Zealand, which may be operated by independent service contractors.
13. Limitation of liability
13.1 To the extent permitted by law, our aggregate liability to you or any other person (whether in contract, equity, tort or otherwise) arising out of your engagement of us on any engagement (or any series of related matters) will not exceed:
(a) if an amount is available to be paid out under our relevant insurance policies in respect of our liability to you, that amount, up to a maximum of NZ$3,000,000 (including interest and costs); or
(b) in any other case, an amount equal to three times our paid fees in respect of the matter (excluding our office service charges, disbursements and GST).
13.2 Any claim you may have against us must be submitted to us in writing within 12 months after the date of the act or omission on which the claim is based. Otherwise, the claim cannot be submitted, and we will have no liability for that act or omission or for its consequences (to the extent permitted by law). Reference here to “claim” and “the date of act or omission on which the claim is based” have the same meanings as in the Limitation Act 2010. This time limit overrides the time periods under the Limitation Act 2010 and applies regardless of when any fact relevant to the claim was first discovered or able to be discovered.
14.1 These Terms apply to any current engagement and also to any future engagement, whether or not we send you another copy of them. You do not need to sign any documentation to indicate your acceptance of any current engagement or future engagement to indicate your acceptance of these Terms, your acceptance will be assumed from you continuing to engage us.
14.2 We are entitled to change these Terms from time to time, in which case we will send you amended Terms. The change will bind you in respect of any matters on which we accept instructions after publication of the change.
14.3 In the event a conflict of terms arises between our standard terms of engagement, and the engagement letter, the engagement letter terms will prevail.