Terms of ENGAGEMENT
1. Acceptance
1.1 These Terms of Engagement will apply whenever you engage us to act for you, subject to any different or additional terms agreed in writing by us. You accept and agree to these standard Terms of Engagement by continuing to engage us. We reserve the right to vary these Terms of Engagement from time to time. We will notify you of any variation to these Terms of Engagement and you will be bound by such varied terms from the date of such notification.
2. Interpretation
2.1 In these Terms of Engagement, "we" and "us" mean IOU Limited or Fusion Business Consultants. 'You" means our client, being the party identified as such in the relevant letter of engagement.
2.2 Our duties are owed only to you. Unless otherwise agreed in writing or required by law, those duties will not extend to others, including for example associated parties such as shareholders, or related companies, directors or employees, or family members. If any such parties wish to retain us they should do so by separate agreement. Our advice is given for your benefit only and in your interests.
2.3 Any other ‘defined’ terms will have their ordinary meaning.
3. Scope of Work and Our Role
3.1 All matters will be carried out in accordance with obligations of the Code of Ethics and professional standards and conduct of CAANZ and NZLS. Our duties are owed to our client and any advice given is for the benefit of our client alone. Unless otherwise expressly agreed or required by law, our duties will not extend to any other person.
3.2 We provide advice on general business accounting and legal matters, and on occasion act as your advocate in legal proceedings. We do not purport to be experts in all fields of business or law and we will, where we consider it necessary or desirable to do so, secure advice on particular aspects of the matter from professionals including lawyers. We do not provide specific legal or investment advice, because these are not areas in which we claim to have expertise. However we will, if you so request, assist you in obtaining such advice.
3.3 For the avoidance of doubt, any advice given in relation to commercial or any other law, is general in nature based on experience, knowledge and skills and should not be construed as independent specific legal advice as detailed in the rules of the Lawyers and Conveyancing Act 2006.
3.4 We are only qualified to advise on New Zealand accounting standards, taxation and on general commercial law as it applies to your business. If we assist you on matters governed by foreign law, we do so on the basis that we do not accept any responsibility in relation to your position under that foreign law, whether or not we have obtained foreign law advice on your behalf.
4. Calculating Fees
4.1 We will charge a fee which is reasonable for the services we provide to you. In some instances we are willing to cap to a maximum amount for the work we undertake.
4.2 Where fees are not determined in relation to an agreed fixed price, in determining our fee we will take into account the hourly rates of our personnel who have worked on the matter including the following:
a) the time and labour expended;
b) the skill, specialised knowledge and responsibility required to perform the services properly;
c) the importance of the matter to the client and the results achieved;
d) the urgency and circumstances in which the matter is handled;
e) the complexity of the matter and the difficulty or novelty of the questions involved;
f) any quote or estimate of fees given; or
g) the fee customarily charged in the market and locality for similar services.
4.3 Our standard hourly charge-out rates are quoted exclusive of GST and are subject to review and periodic adjustment. You are liable to pay GST on our fees and charges. For a variety of reasons some instructions are not completed. If this occurs, we will charge you for the work undertaken and costs incurred up to the time of termination. If you ask us to issue an invoice in the name of another entity you will remain liable for payment of that invoice.
4.4 Where the time taken, or is likely to be undertaken, in the event we have agreed to a fixed rate, is likely to exceed the anticipated resources required, we reserve the right, to amend or negotiate rates with you. Where you decide to not go ahead with any further work from us we reserve the right to invoice you for the work completed to date.
5. Other Costs
5.1 In addition to time, it may be necessary for us to recover disbursements from you such as accounting and other software.
6. Fee Estimates
6.1 If requested prior to commencement of work, we will discuss with you anticipated fees and disbursements and our payment terms. This will be an estimate only and must be used as a guide, not a quote or maximum fee. A fee estimate will however assist with your budgeting and planning.
6.2 Payment: It is our practice to bill on a periodic basis, usually monthly, and upon completion of the matter. Accounts are due for payment on receipt. For matters where we may hold monies on your behalf in our trust account, we may make payment of all or part of your bill (including any disbursements) by deduction from these monies. Under these terms and conditions you irrevocably consent to such deduction.
6.3 If your account remains unpaid we reserve the right to suspend work for you and retain possession of documents and files. You will be liable for all costs associated with the collection and recovery of your overdue and unpaid account. Information you have provided to us may be used to assist in collecting an overdue account. If the account is not paid within 30 days of the account date, we may charge interest at 15% per annum on the unpaid portion, from the due date until the date of payment in full. Further, you will be responsible for all costs incurred by us in recovering any such unpaid account.
7. Privacy
7.1 Under the Privacy Act 1993 and in keeping with our professional ethical obligations to you as accountants, you have the right to access any personal information that we hold about you. Additionally, you may require us to correct this information if it is incorrect. Your personal information and those of your clients which we hold will be used by us for the purpose of providing professional services to you and to assist with our risk and financial management.
8. Trust Funds
8.1 In the course of acting for you, we may receive funds to be held in our trust account for your benefit or for the benefit of third parties. If a significant sum is held in our Client trust account pending disbursement it is our policy to put such money on interest bearing deposit with a branch of the ASB Bank on such terms as we may deem acceptable. Funds will be invested in this manner unless you expressly direct us otherwise or unless the quantum of the funds or the period of time for which they will be held by us make it inconvenient or impractical for us to invest them. We will have no responsibility to you or anyone else for the performance of any investments so made.
8.2 All interest earned on funds invested belongs to you or the third party beneficiary and will form part of the trust funds. The beneficiary will be liable to pay all income tax on the interest. You must indemnify us in respect of any income tax payable in relation to the funds invested (whether for you or a third party) for which we may be assessed.
9. Related Party, Third Party or Joint Instructions
9.1 In matters where you provide us with instructions for and on behalf of a related party or entity, a third party or jointly with another party, or instructions are received directly from a related party or entity, both you or your company (as the case may be) and the related entity or other party (as the case may be) and any other person who instructs us (or on whose behalf we are instructed) will be bound by these Terms of Engagement and will be jointly and severally liable to pay for our services, including disbursements, in accordance with these terms.
10. Intellectual Property
10.1 As part of the marketing services provided by Fusion content and material may be created that comprises Intellectual Property.
10.2 The client acknowledges and agrees that all content, images, design or any other components that Fusion considers to be Intellectual Property will be owned by and vest in Fusion immediately upon creation and the client hereby assigns to Fusion all rights, title and interest to such Intellectual Property unless otherwise agreed in writing between the parties.
11. Conflicts of Interest
Professional conduct rules require us to avoid acting for clients if we have a conflict of interest. We will undertake an internal inquiry to confirm there is no conflict arising from your instructions each time we receive instructions. If a conflict should arise in relation to a particular matter, we will notify you immediately and make suitable arrangements including, if necessary, the termination of our engagement.
12. Electronic Communications
12.1 The contents of emails (and attachments) sent by us may contain copyright material of Fusion Business Consultants and/or IOU Limitedand/or third parties. You should only reproduce or distribute the materials if you are expressly authorised by us to do so. If material contained in emails is of a kind that might attract legal professional privilege, it is possible that privilege may be lost by the act of electronic dissemination.
12.2 Our emails are not encrypted and therefore may be open to access by "hackers". If this is of concern to you, please do not email particularly sensitive material to us and instruct us to avoid the use of emails for communications with you.
12.3 We do not represent or warrant that files attached to our emails are free from computer viruses or other defects. Any attached files are provided, and may only be used, on the basis that the user assumes all responsibility for any loss or damage resulting directly or indirectly from such use. Our liability is limited in any such event to either the re-supply of the attached files or the cost of having the attached files re-supplied.
12.4 By forwarding any emails (and attachments) to us, you agree that we may copy, distribute or disclose such emails (and attachments) to other third parties for the purpose of providing our services to you. For example, we may forward your emails (and attachments) to our agents, consultants or barristers who are assisting us in providing services to you.
13. Limitation of Liability and Indemnity
13.1 To the extent permitted by law, our aggregate liability to you (whether in contract, equity, tort or otherwise) arising out of your engagement of us on a matter (or any series of related matters) is limited to the greater of:
a) the amount available to be paid out under any relevant insurance held by us, up to a maximum of and/or
b) (if greater) the amount of twice our applicable fee (excluding our service charge, disbursements and GST).
13.2 Fusion will use it’s best endeavours to ensure that any designs, logos or brands created on the Client’s behalf does not impinge upon any other persons copyright or other Intellectual Property.
13.3 The Client will indemnify Fusion against any claim, liability or expense (including without limitation, legal fees, costs and disbursements) incurred by Fusion, arising either directly or indirectly out of the provision of the Services that is caused or contributed to by the Client or where Fusion is acting on the Client’s instructions.
14. Complaints
14.1 We pride ourselves on our relationships with our clients and aim to exceed our clients' expectations. However, we recognise that even with the best intentions on both sides issues or misunderstandings may arise from time to time and we therefore maintain a procedure for handling any complaints by clients, designed to ensure that a complaint is dealt with promptly and fairly.
14.2 If you have a complaint about our services or charges, you may refer your complaint to the Director in our firm who has overall responsibility for your work. If you do not wish to refer your complaint to that person, or you are not satisfied with that person's response to your complaint, you are entitled to make a complaint regarding a breach or alleged breach of the Chartered Accountants Code of Ethics.
14.3 The Director is not currently a practising lawyer pursuant to the Lawyers and Conveyancing Act 2006 but is a non-practising member of Auckland District Law Society (ADLS) and is as such, in a limited capacity, bound by the rules of ADLS.
14.4 Information in relation to the CAANZ complaints procedure is found at http://www.nzica.com/Technical/Professional-conduct-and-complaints/How-to-make-a-complaint.aspx
14.5 If you wish to make a complaint about the Director or any third party instructed on your behalf, the New Zealand Law Society operates the Lawyers Complaints Service and you are able to make a complaint to that service. To do so, phone 0800 261 801 and you will be connected to the nearest Complaints Service Office, which can provide information and advice about making a complaint.
15. Termination of Services
15.1 We may terminate the engagement at any time by written notice to you, in any of the circumstances set out in the CAANZ Code of Conduct.
15.2 If you wish to terminate our services or significantly the tasks we regularly undertake, please advise us in writing as soon as possible. Until we receive this written notification we may continue with our original instructions and you may incur further costs as we do so.
15.3 Where you give us any instruction and we rely on that instruction (for example, by giving an undertaking to a third party) you may not revoke that instruction.
15.4 Regardless of who terminates our engagement you will be liable to pay our fees and the disbursements we incur (even if not paid by us prior to the termination date), up to and including the termination date.
15.5 We may retain copies of any of your documents and information on our files following completion of a matter and/or termination of our engagement.
16. Document Destruction
16.1 Subject to any legal requirement, we will retain the file that we create for your work on any one job for a minimum of 7 years after we finish working for you on that matter. We may hold all or part of that file electronically rather than physically in addition to any physical documents received. After that time we may destroy that file and/or any supporting documents without contacting you.
17. Confidentiality:
17.1 We will hold in confidence all information concerning you or your affairs that we acquire during the course of acting for you. We will not disclose any of this information to any other person except:
a) to the extent necessary or desirable to enable us to carry out your instructions; or
b) to the extent required by law.
17.2 We will, of course, not disclose to you confidential information which we have in relation to any other client.
18. General
18.1 Any dispute concerning these Terms of Engagement, or our work for you, is to be resolved in New Zealand Courts under New Zealand law.