TERMS OF ENGAGEMENT
The following items should be carefully read and understood by Clients of HGNZ as they form part of the offer made in the Engagement Agreement. These terms, together with the Engagement Agreement, supersede any prior written or oral understandings between HGNZ and you with regard to HGNZ’s terms of engagement. These terms will apply to the matters described in the Engagement Agreement and, unless agreed otherwise, any subsequent matters on which you engage HGNZ.
Any information and all matters connected with and relating to the Client’s business and its performance are confidential and HGNZ shall not disclose them to any other person except where specifically instructed in writing by the Client, or directed to do so by a Court of Law or equivalent authority. HGNZ reserves the right to have the Client’s accountant / tax agent and its members of staff, insurers, auditors or other advisers (if required) view such information as part of HGNZ’s Quality Control Procedures and operating or management processes.
Lodgement of Documents
It is specifically understood that any official document (GST, PAYE, Information for Tax Agent etc.) prepared by HGNZ on behalf of the Client belongs to the Client. It is the Client’s responsibility to ensure that documents are lodged on time with relevant authorities. HGNZ will endeavour to ensure that documentation is lodged with statutory departments (IRD) by due dates, but only where all required information and documentation is received sufficiently ahead of the due lodgement date to enable proper preparation of documents to be lodged. Generally a minimum of 10 business days will be required, although in some cases this may need to be extended.
Documents can only be lodged on the Client’s behalf where the Client has approved, in writing, such documentation for lodgement. Therefore, it is necessary to ensure that sufficient time is allowed for all steps in the process to be properly completed.
Where all required documentation has not been provided to HGNZ or where written approval to lodge documents has not been obtained to enable HGNZ to lodge documents on time, HGNZ will not be liable for any penalties or charges incurred by the Client as a result of the late lodgement.
Responsibility for Bookkeeping Records
The Client has sole responsibility for the maintenance and availability of business records. Information contained in any statutory return is that of the Client. HGNZ staff are not qualified to provide tax, financial planning or legal advice and cannot be held responsible to ensure that transactions comply with legislative requirements. As GST agents / bookkeepers HGNZ staff will use their best endeavours to properly record transactions in the accounting records. To this end, supporting documentation is required and must be made available when requested. From time to time HGNZ may rely on the Client’s direction for such allocation.
In certain cases it may be appropriate to refer transactions to the Client’s tax accountants or other professional advisors for direction on appropriate accounting / tax treatment.
Protection of records and prevention of fraud is specifically the sole responsibility of the Client.
Responsibility for Backup of Accounting Files and Other Supporting Documents
Responsibility for backup maintenance of accounting files and supporting documents rests solely with the Client. Where work is carried out at HGNZ’s offices and files are maintained on the HGNZ Server, we will ensure a system is in place for backup maintenance. Where computer files are maintained at the Client’s premises we will attempt to ensure that appropriate backups are taken from time to time – especially at critical times of the financial year and may maintain copies. However, we cannot be held responsible to ensure backups exist.
Ownership of Documents
Any document used to prepare financial reports, GST or any other documents remain the Client’s property and are to be retained by the Client. HGNZ may keep copies of documentation as required to enable HGNZ to complete any task.
Ownership of Accounting Software File
Ownership of software files remain with the Client. However, software licences remain the property of the owner of the licence. Therefore where HGNZ owns the licence, the software will be removed from the Client’s computer on termination of HGNZ’s services and if appropriate, a licence removal fee may be charged. A copy of the file will be provided to the Client following payment of all outstanding fees and charges.
Where the licence is owned by the Client, all file copies will be returned to the Client on termination following payment of all outstanding fees and charges.
HGNZ aims to provide the highest standard of professional services and is focussed on the needs and concerns of our clients. If the Client is dissatisfied with the level of service provided, the Client should immediately contact Steven Pick, on 09 216 5901 or by email to firstname.lastname@example.org to raise matters of concern.
If matters of concern are not raised within 14 days of the occurrence HGNZ cannot be held responsible for fees incurred for services beyond the 14 day time frame.
It is anticipated that a reasonable working environment will be provided for our consultants, including suitable work space. In the event that such an environment cannot be provided, work may be undertaken in HGNZ’s office at HGNZ’s sole election.
Liaison with Accountant / Tax Agent
To promote a sound working relationship and delivery of appropriate services, HGNZ will need to discuss matters and exchange information with the Client’s accountant / tax agent. If for any reason this is not believed to be appropriate, notification in writing should be provided to HGNZ as soon as possible.
You agree that you will not solicit or entice or engage an employee of HGNZ to perform any work for you in any manner unless HGNZ’s prior written approval has been obtained and a recruitment fee of 50% of the market rate annual salary is paid.
You agree that a recruitment fee of 50% of the market rate annual salary will be paid to HGNZ should you directly or indirectly employ or engage the services of a HGNZ employee within 12 months following their resignation from HGNZ. For a period of 12 months following the cancellation of our services you agree you will not hire, use or engage any person previously referred to you by HGNZ without paying the one off referral fee of 50% of their market salary.
Cancellation Fee and Minimum Hours
The minimum engagement time for any Bookkeeping visit is 4 hours. If for any reason an appointment is cancelled with less than 24 hours notice, a cancellation fee equal to the minimum charge of 4 hours work will be payable.
HGNZ must comply with the National Privacy Principles contained in the Privacy Act 1988. HGNZ collects personal information for the purpose of providing its services.
The Client irrevocably indemnifies HGNZ and each of its officers, employees, agents and advisers (each an Indemnified Party), and must keep HGNZ and each Indemnified Party indemnified against any and all liability, damages, claims and loss directly or indirectly arising from, and all costs, charges and expenses arising in connection with:
- the Engagement Agreement, the work to be performed under the Engagement Agreement (Work) or any matter or activity referred to or contemplated by the Engagement Letter;
- any breach or failure by the Client to observe any of the terms and conditions of the Engagement Letter;
- any claim that HGNZ has liability for under any law in relation to the Work; or
- any review or investigation undertaken by any regulatory authority as a result of an alleged or actual failure to comply with the conditions and requirements of any law or regulation.
This indemnity will not apply to the extent that such liability and loss are determined by a court of competent jurisdiction (where all appeals have been exhausted) to have been the direct result of HGNZ’s or an Indemnified Party’s gross negligence or wilful misconduct. The reference to costs and expenses includes, but is not limited to, a reference to legal costs and expenses on a solicitor and own client basis.
Any approval or consent given by HGNZ does not waive or prejudice the right of an Indemnified Party to the indemnity in these Terms of Engagement and such rights survive the expiry or termination of the Engagement Agreement. The Client agrees that HGNZ holds the benefit of this indemnity on trust for itself and all other Indemnified Parties.
HGNZ disclaims all responsibility, whether to the Client, any related body corporate of the Client or third parties, for all claims arising out of advice given by HGNZ based upon information provided to HGNZ by the Client or third parties which is or becomes misleading, inaccurate or incomplete. Neither HGNZ nor any Indemnified Party shall have any liability to the Client, any related body corporate of the Client or to third parties in connection with this Engagement Agreement except for liability that is finally judicially determined (after all appeals have been exhausted) to have directly resulted from HGNZ’s or an Indemnified Party’s gross negligence or wilful misconduct.
If for any reason the above indemnities are unavailable at law or are otherwise unavailable or insufficient to hold HGNZ or any Indemnified Party harmless against any losses which that party is stated to be indemnified for, the respective proportional contribution of the Client and HGNZ / the Indemnified Party in relation to the relevant loss will be as agreed, or failing agreement, as determined by a court of competent jurisdiction having regard to the participation or involvement of the Client and HGNZ / the Indemnified Party in the act complained of. In no event will HGNZ / the Indemnified Party be required to contribute to losses which in aggregate exceed the fees paid to HGNZ in the 3 month period preceding the claim under the Engagement Agreement.
Conduct of proceedings
Where any legal or other proceedings arise and the Client confirms in writing that HGNZ / the Indemnified Party is indemnified pursuant to these Terms of Engagement, then the Client is entitled to defend or institute legal or other proceedings at the Client’s cost, in the name of HGNZ / the Indemnified Party and conduct those proceedings under the management and control of the Client (with reasonable consultation with HGNZ / the Indemnified Party), provided that neither the Client nor HGNZ has the power to settle, compromise, consent to early judgment in or otherwise seek to terminate any action, suit, proceeding, investigation or claim in respect of which indemnification has or may be sought under these Terms of Engagement without the prior written consent of the other, which must not be unreasonably withheld, and such settlement, compromise, consent or termination shall include a release of HGNZ / the Indemnified Party from any liabilities arising out of such action, suit, proceeding, investigation or claim.
Limitation of Liability
This provision does not exclude, restrict or modify the application of any provision of the New Zealand Consumer Law. Subject to this, where our total fees do not exceed $5,000 (exclusive of GST and disbursements) in relation to a particular service, our liability:
- for any failure to comply with any consumer guarantee in respect of the supply of our services that are not of a kind ordinarily acquired for personal, domestic or household use or consumption is limited, at our sole discretion, to:
- the resupply of the services again; or
- the payment of the cost of having the services supplied again; and
- for any loss or damage suffered as a result of our engagement which otherwise arises, whether in tort (including negligence), contract or otherwise, must not exceed a total of 3 times the total fees received by us in relation to the matter to which the liability arises (exclusive of GST and disbursements).
In consideration for HGNZ entering into this Engagement Agreement, you agree to the maximum extent permitted by law:
- to release HGNZ and each other HGNZ entity from all claims arising in connection with your matter to the extent our liability in respect of those claims exceeds the above limits; and
- to the extent that any loss or damage suffered by you is attributable to fault, negligence or lack of care on your part or on the part of any person for whom you are responsible, HGNZ and each HGNZ entity is not liable (in tort, including negligence, contract or otherwise) for the loss or damage,
(each a Release).
HGNZ enters into this Engagement Agreement as agent for each HGNZ entity (as well as in its own capacity) and, despite the fact that each other HGNZ entity is not a party to the Engagement Agreement, HGNZ may enforce each Release as agent for, and for the benefit of, each other HGNZ entity.
Our fees and disbursements and all money payable by you under the Engagement Agreement are exclusive of any applicable GST (except where fees are expressed to be inclusive of GST). In addition to our fees and disbursements, you must pay GST on those amounts (if applicable). Our invoice will contain details of any GST charged.
If your invoices are overdue
If any invoice remains unpaid 30 days after the date you receive it, we may charge interest on the unpaid amount at the rate equal to the percentage (or maximum percentage) specified by the Reserve Bank of Australia at the time the invoice was issued as the Cash Rate Target, increased by 3 percentage points, calculated from the end of that 30 day period until the amount is paid in full.
If you do not pay our invoices within the stated period, we may stop work until we are paid or the money is provided. We may cease to work for you if these circumstances continue.
If we cease to act for you under these circumstances, the section under ‘Ending our engagement’ below will apply and you agree to consent to the termination of our engagement and to do all things reasonably necessary to effect that termination.
Ending our engagement
You may terminate our engagement at any time by giving 1 months’ written notice to us. Your termination will not affect your responsibility to pay our fees for work done and expenses incurred up to the time of termination.
We may cease to work for you if you continuously fail to pay our invoices within the stated period, if you do not give us adequate instructions or if we have other reasonable cause. Circumstances may also arise, such as a conflict of interest, which make it impossible for us to continue to work for you. If this happens, we will contact you immediately.
Governing laws and jurisdiction
The Engagement Agreement and these Terms of Engagement and any disputes arising from them will be covered by the laws which apply in the New Zealand. HGNZ and the Client agree to the exclusive jurisdiction of the courts of New Zealand.
HGNZ is an independent contractor to the Client. There is no fiduciary or agency relationship between HGNZ and the Client, nor does the Engagement Agreement create a relationship of employment, trust, agency or partnership between the parties.
Any provision of the Engagement Letter or the Terms of Engagement which are void or unenforceable are only ineffective to the extent of that voidness or unenforceability without invalidating the remaining provisions and the Engagement Letter and Terms of Engagement Agreement will remain in full force and effect and the offending provision(s) will be deleted and substituted by a valid one(s) which in its economic effect comes so close to the invalid provision that it can reasonably be assumed that HGNZ and the Client would have contracted with the new substituted provision.