Standard Terms and Conditions of Engagement
These Terms and Conditions govern the services (“Services”) including the deliverable (“Deliverable”) provided by William Buck (NZ) Ltd (includes William Buck (NZ) Ltd and related entities or “us” or “we”) described in the Engagement Letter. The Engagement Letter confirms the engagement by you (“Engagement”) of William Buck (NZ) Ltd. These Terms and Conditions form part of the Engagement between the Client (“you”) and William Buck (NZ) Ltd and supersede all prior terms and conditions of engagement. The Engagement Director referred to in the Engagement Letter will be the primary representative of William Buck (NZ) Ltd. The term Engagement Director also refers to the Engagement Partner, as relevant.
2. Identifying our Client
In addition to representing the party that the Engagement Letter identifies as our Client, that party (“you”) may ask us to advise other persons, subsidiaries, associated entities, companies or trusts (referred to as “associates”) in relation to the Engagement. By doing so you confirm to us that you have proper authority to engage William Buck (NZ) Ltd on their behalf and these Terms and Conditions will also apply to that Engagement. Notwithstanding the number of associates that William Buck (NZ) Ltd may represent or to whom we give advice, you will be our Client and you will be ultimately responsible for settlement of our costs and disbursements if the associate fails to discharge this obligation to William Buck (NZ) Ltd.
While the terms of the Engagement are specified in the Engagement Letter and these Terms and Conditions, additional services may be required of us from time to time which may not be specifically mentioned in the Engagement Letter. For example, variations to the scope of the Engagement may arise through discussion at meetings, telephone conversation, fax, email or letter, and it is agreed that any such additional service requests will be fully covered by these Terms and Conditions as if they were specified in the Engagement Letter.
For this reason, from time to time William Buck (NZ) Ltd will confirm any changes, amendments or extensions to our Engagement with you in writing. Refer to the Change Order Process outlined in the Engagement Letter, if applicable. Until such time however, the most recently authorized Engagement Letter will continue to be our reference for providing Services to you.
In fulfilling the obligations of the Engagement, William Buck (NZ) Ltd may be required to utilize the services of other entities in the William Buck Group. In the event that these services are utilized, the Engagement Letter and Standard Terms and Conditions will also govern those additional services provided. William Buck (NZ) Ltd does not warrant and will not be held responsible for any third party products or services. The Client’s sole and exclusive rights and remedies with respect to any third party products or services are against the third party vendor and not against William Buck (NZ) Ltd.
4. Client Responsibilities
William Buck (NZ) Ltd shall be entitled to rely on all Client decisions and approvals made independently of this Engagement. Nothing in this Engagement shall require William Buck (NZ) Ltd to evaluate, advise on, modify, confirm, or reject such decisions and approvals, except as expressly agreed to in the Engagement Letter.
As our Client, you acknowledge that in determining the scope of the Engagement, quoting the fees and providing the Services that William Buck (NZ) Ltd shall be entitled to rely upon all Client representations including, but not limited to, those representations that relate to Client responsibilities for business strategy, existing systems, structures, operating practices, financial reporting, human resources and marketing, except as expressly agreed in the Engagement letter or required by legislation. Nothing in this Engagement purports to relieve Client management of its primary responsibilities including the responsibility to determine the adequacy of the Deliverable prior to implementation or adoption, as relevant.
Notwithstanding the scope of William Buck (NZ) Ltd’s Services or deliverables hereunder, Client acknowledges that it remains Client’s responsibility to devise and maintain a system of internal accounting controls. Client will determine the adequacy of its internal accounting controls and financial reporting systems without relying on William Buck (NZ) Ltd’s Services or deliverables as the primary basis for making such determination. Finally, Client acknowledges to William Buck (NZ) Ltd that it is Client’s responsibility to make such disclosures with respect to this Engagement that are required by applicable laws and regulations.
Client shall accept the Deliverables (as specified in the Engagement Letter) which (i) conform to the requirements of the Engagement Letter or (ii) where applicable, successfully complete the Acceptance Test Plan described in the Engagement Letter. Client will promptly give William Buck (NZ) Ltd notification of any non-conformance of the Deliverables with such requirements (“Non-conformance”), and William Buck (NZ) Ltd shall have a reasonable period of time, based on the severity and complexity of the Non-conformance, to correct the Non-conformance. If the Client uses the Deliverable before acceptance, fails to promptly notify William Buck (NZ) Ltd of any Non-conformance, or unreasonably delays the beginning of acceptance testing, then the Deliverable shall be considered accepted by Client.
Any advice that we give you will be based on the law as it is on the date of the advice. We accept no responsibility for changes in the law, or in interpretations of the law, which occur subsequent to the date on which our advice is given to you.
Nothing in our Engagement with you or statements made to you shall be construed as a promise or guarantee about the outcome of any matter.
In order for us to perform the Services in a timely and efficient manner, we require your co-operation, including arranging access to third parties and making any relevant party available for consultation upon our request. You acknowledge and agree that the timely completion of the Service requires and depends on your co-operation and that our time estimates for completion of the Service may vary in case of your lack of co-operation.
The Services will be provided solely for your benefit and use, unless otherwise indicated in the Engagement Letter. Accordingly, any advice or opinion relating to the Services may not be disclosed in any way, including any publication or any electronic media, to any other party and is not to be relied upon by any other party.
In the course of providing the Services, we may provide you with oral comments, draft reports or advice, presentations, letters and other documents. You must not rely on such drafts or oral communications, or advice as they may be subject to further work, revisions and hence the drafts may substantially differ from the final advice. The final advice or report will take precedence.
We are under no obligation, and may do so only in our absolute discretion, to update any advice or report in respect of matters arising after the final advice or report has been issued to you.
William Buck (NZ) Ltd will attempt to comply with your request for specific individuals to work on the Engagement. William Buck (NZ) Ltd will however be ultimately responsible for assigning and re-assigning its personnel, as appropriate, to perform the Engagement.
During the term of this Engagement, and for a period of twelve (12) months following the expiration or termination thereof, neither party will actively solicit the employment of the personnel of the other party directly involved with providing Services hereunder.
8. Outsourced Service Providers
- The engagement, termination and replacement of the OSP will be by us on terms and conditions that we determine, negotiate and/or accept. We will be responsible for the fees, charges and expenses of that OSP which fees, charges and expenses will be absorbed into and become part of your fees and/or disbursements.
9. Third Party Services and Products
In the event that the Engagement Letter refers to a Third Party Provider(s) (TPP) this clause is applicable.
- To fulfil the Engagement, we may engage at our discretion, a TPP.
- We will be responsible for the fees, charges and expenses of that TPP which fees, charges and expenses may be absorbed into and will become part of your fees and/or disbursements, unless otherwise identified.
- The engagement, termination and replacement of the TPP will be by us on terms and conditions that we determine, negotiate and/or accept.
- You acknowledge that the terms and conditions upon which we have retained a TPP may vary from time to time and it is within our discretion whether to accept or decline to vary those terms and conditions.
- You acknowledge that it is sufficient advice of the TPP’s terms and conditions if we supply the website address for the TPP’s terms and conditions and privacy policies if requested by you.
- We do not warrant the performance of a TPP and will not be held responsible for any direct or indirect loss or liability that may arise by your utilisation of the Services of a TPP whether through us or otherwise.
10. Intellectual Property
Any intellectual property rights in any documentation, material, report, process, procedure, methodology, trademark, copyright, financial model, research or software brought to the Engagement by us or developed or created as a result of or in the course of the Engagement or provision of the Services remains or vests as the property of William Buck (NZ) Ltd.
11. Professional Fees
In the absence of a specifically agreed fee arrangement, our fees will be based on time spent on the Engagement. They are also based upon the professional work necessarily performed as a result of the representations or information supplied by you. Our professional fees are dependent upon: (i) the timely and effective completion of your responsibilities; (ii) the accuracy and completeness of representations and information; (iii) timely decisions and approvals by you or your management; and (iv) furnish William Buck (NZ) Ltd personnel with a suitable office environment and adequate resources and supplies needed to complete the Engagement. William Buck (NZ) Ltd will not be responsible for any delays, additional costs, or other liabilities caused by or associated with any deficiencies in your responsibilities, and information/ representations supplied by you. All fees are exclusive of GST.
Each of our consultants and support staff maintain time records in tenths of an hour. All time recorded is reviewed carefully before you are invoiced to be sure that you are not charged for time not appropriately incurred in discharging our professional service obligations to you.
We revise our fee scale every six months. Rates quoted to you remain in force until 31 December and 30 June. Any work performed after these dates may be charged at a revised fee scale.
12. Payment of Fees
The primary terms require payment to be made within 21 days of the date of invoice. William Buck (NZ) Ltd may at its sole discretion offer the Client an alternative payment arrangement. Where the Client fails to adhere strictly to the terms of such alternative payment arrangement the primary terms apply to the amount due on all outstanding invoices. Where an alternative payment arrangement is made available, you will be required to select the method of payment prior to the commencement of work. Alternative payment arrangements presently available are:
- SmartAR – for fees of $1,000 or more finance is available through smartAR, a third party financier, that enables you to spread payment of fees over six or twelve months. Where you select smartAR we will send you a form to complete and return to us. Acceptance is at the sole discretion of smartAR. Your work will commence once we have received confirmation of acceptance from smartAR. (For more information visit www.smartar.com or call our Firm Accountant on +64 9 366 5000.)
- Automatic payment over three months – You can choose from fortnightly or monthly payments over three months. Where you select automatic payment we will ask you to complete the bank authority when we receive your work, the amount will be based on our estimate of your fee. Work will commence on receipt of your first payment. Where the actual fee is greater than our estimate, payment of the resulting balance is required within 21 days of invoice.
If an invoice remains unpaid for longer than 21 days from issue, the Client agrees to complete the documentation required to enable us to immediately apply to smartAR or such other facility as we may have available to finance the amount due. We also reserve the right to charge interest on the outstanding amount from the invoice date until full payment at the rate of 2% over the 90 Day Bank Bill Rate identified by us. It is expected that you will pay William Buck (NZ) Ltd for all professional fees and related expenses in accordance with the Engagement work.
In the event where your overdue account is referred to a collection agency and/or law firm, you will be liable for all costs which would be incurred as if the debt is collected in full, including commission on collection of the additional costs and the legal demand costs.
If we are required to attend court or produce any documentation (pursuant to a subpoena), or if we receive any legally enforceable notice or demand issued by any third party, including the Ministry of Economic Development, Financial Markets Authority, Inland Revenue Department, or any other government authority in relation to the Services, you will reimburse us for any costs (including any legal costs on a full indemnity basis) incurred in that respect, including our professional time charged at our standard fee scale and other related expenses.
13. Disbursements and Incidental Expenses
William Buck (NZ) Ltd charges a standard disbursement of 3% of the fee for office disbursements such as photocopying, printing and facsimile charges. All other disbursements directly attributable to you will be charged to you. Eg: travel required to fulfil our obligations to you, title searches, Companies Office fees etc.
14. Questions, Objections and Feedback
If you have any questions about, or objection to, an invoice or the basis of our charges, you should raise it promptly for discussion. You should speak to the Engagement Director or if you would prefer to do so, to our General Manager. You are entitled to ask for and receive an itemized bill within 30 days of receiving our original invoice, unless the assignment is subject to a previously agreed fee. If you object to a portion of an invoice, you agree you will pay the remainder of that invoice and such part payment will not constitute a waiver of your objection. Your objection will be investigated by us and resolved in a timely manner. If you still have a complaint or the dispute has not been satisfactorily resolved, then you agree to resolve it through a mediation process.
William Buck (NZ) Ltd is always interested in obtaining feedback and you may be contacted from time to time to provide your views on potential improvements to our services. If you wish to make a complaint regarding the quality of our services, please contact the Engagement Director in the first instance or the Managing Director, as appropriate. If you are dissatisfied with the way your complaint is handled, you can report the matter to the Institute of Chartered Accountants of New Zealand.
15. Force Majeure
If the performance of the Services is delayed or prohibited by any circumstance or event which, despite using all reasonable endeavours, we are unable to control, including any act of God, flood, fire, damage caused by lightning, storm or tempest, rains falling during normal dry seasons, labour disputes, acts of war or terrorism, civil disturbance or enactments of any government agency relating to the Services, then you excuse us from performing the Services to the extent affected.
Confidential information means all:
- information concerning or relating to the Services or your business affairs;
- information, documents which either party to this Engagement receives or produces in respect of or arising out of the Services, including any of William Buck (NZ) Ltd’s working papers, documents, reports, information and methodology; and
- any information about the terms of the Engagement,
but excludes any information which:
- is or becomes generally available to the public other than as a result of a breach of this provision;
- is known to either party prior to William Buck (NZ) Ltd commencing the Services; or
- is received independently from a third party who owes no obligation of confidence in respect of this information.
A party may disclose the Confidential Information:
- to those of its employees, officers, professional or financial advisers and bankers as the party reasonably thinks necessary but only on a strict confidential basis; or
- if required by law, after the form and terms of that disclosure have been notified to the other party and the other party has had a reasonable opportunity to comment on the form and terms.
With respect to the Confidential Information each party agrees to:
- protect the Confidential Information in a reasonable and appropriate manner or in accordance with applicable professional standards;
- use the Confidential Information only to perform its obligations under the Engagement; and
- reproduce the Confidential Information only as required to perform its obligations under the Engagement.
Information acquired by us in the course of the Engagement is subject to strict confidentiality requirements as set out above and in accordance with our professional obligations.
Our files may, however, be subject to review as part of the practice review program of the New Zealand Institute of Chartered Accountants which monitors compliance with professional standards by its members or William Buck (NZ) Ltd’s own quality monitoring program. We advise you that in signing the Engagement Letter you acknowledge that, if requested, our files relating to the Engagement will be made available under these programs. The same strict confidentiality requirements apply under these programs as apply to us as your advisor, consultant, accountant or auditor.
Notwithstanding anything herein to the contrary, William Buck (NZ) Ltd may reference or list the Client and/or a general description of the Services.
We do not believe that there are any conflict problems in providing services to you. It is nevertheless possible that now or in the future such a conflict will become apparent in which event we shall notify you immediately.
If at any time we find that while fulfilling the Engagement or our engagement with another client an independence or conflict of interest issue may arise, we will work through that conflict of interest or independence issue so that any further services to you will be objective and free from such conflicts. If we cannot resolve the conflict or independence issue we may be required to cease providing services to you (and/or the other client) because of our professional obligations.
Subject to our professional obligations, we may take positions on other matters which could be considered adverse to you.
Any notices given pursuant to the Engagement shall be in writing, delivered to the address set forth in the Engagement Letter (unless you notify us otherwise), and shall be considered given when received.
You acknowledge that:
- William Buck (NZ) Ltd and you may correspond or convey documentation via Internet e-mail, fax and post unless you expressly request otherwise;
- Neither party has control over the performance, reliability, availability, or security of Internet e-mail, fax, or post;
- William Buck (NZ) Ltd shall not be liable and you agree to indemnify and keep William Buck (NZ) Ltd indemnified from any loss, claim, damage, expense, harm or inconvenience resulting from the loss, delay, interception, corruption, unauthorised copying, recording, interference, non-delivery or alteration of any Internet e-mail, fax or post due to any reason beyond William Buck (NZ) Ltd’s reasonable control; and
- William Buck (NZ) Ltd shall not be liable for and you agree to indemnify and keep William Buck (NZ) Ltd indemnified from any loss, claim or expense arising out of any damage caused to our system or files by your system or files or by any transmission (including any computer virus).
William Buck (NZ) Ltd reserves the right to exercise a lien over your files. No files or documents will be released until all outstanding William Buck (NZ) Ltd fees are paid in full. Your documents will be retained in safe custody or returned to you upon completion of the Services. The balance of the files will be then archived (off-site) for a period of 7 years or such other period required by law after which they will be destroyed unless you direct us in writing to the contrary.
Nothing in these Terms and Conditions purports to exclude, restrict or modify, or have the effect of excluding, restricting or modifying, any condition or warranty implied by legislation (“Implied Term”), where to do so would have the effect of rendering these Terms and Conditions void or otherwise unenforceable.
William Buck (NZ) Ltd’s liability for breach of any Implied Term is hereby limited to the extent expressly allowed for in the relevant legislation. Each party acknowledges that it is fair and reasonable for the other party to rely on any limitation of liability afforded to that party under the previous paragraph.
To the extent permitted by law, you agree that if you should claim compensation, damage or contribution from us for loss or damage, which you claim to have suffered arising from acts, omission or defaults (including negligence) on our part, and such a loss, claim or damage is in part or wholly:
- due to or contributed by your own acts, omission or defaults (including negligence) or by the acts, omissions or defaults (including negligence) of other persons for whom you are responsible; or
- due to or contributed by one or more other persons not being directors, employees or agents for whom we bear responsibility,
then we will be liable only for that proportion of the loss or damage suffered which our acts, omissions or defaults relate to.
To the extent permitted by law, you agree that our liability for any loss or damage suffered by you or any third party in respect of the Services shall be limited to:
- the fees paid or payable to us in respect of the Services;
- in the case of supply of goods or products either the replacement of those parts of products or the cost of their replacement with similar goods or products; and
- in the case of Services, to the re-supply of those Services or the cost of obtaining similar services.
To the extent permitted by law, we will not be liable to you for any direct, indirect or consequential loss.:
You indemnify and will keep indemnified William Buck (NZ) Ltd and its affiliates, officers, employees and agents against any loss, liability, damages, claims or expenses (including any legal costs on a full indemnity basis) incurred and arising out of:
- any breach of your obligations under these Terms and Conditions; or
- any reliance on any information, documents, products or services, provided to us by you or any third party which are false, misleading or incomplete.
In the course of providing the Services, William Buck (NZ) Ltd may collect personal information from you. You acknowledge and agree that we use this information primarily to provide the Services, maintain contact with you and keep you informed of any accounting or other developments that may be of interest to you or to notify you of seminars that we are holding. You acknowledge and agree that we may use this information for purposes related to internal management and meeting our professional obligations such as conducting conflict checks or for billing purposes.
Subject to our legal obligations, we will respect the confidentiality and privacy of the personal information you provide. You consent to your contact details being disclosed to other organisations for the provision of Services in connection with the operation of our business, such as mailing services, but only under strict confidentiality and privacy controls.
23. Termination of the Engagement
You may terminate our Engagement at any time. Subject to any statutory provisions that apply to the Services, William Buck (NZ) Ltd also reserves the right to cease acting for you if:
- you have not complied with the terms of the Engagement; or
- we perceive at our discretion that the necessary relationship of mutual trust, independence or confidence required for a mutual, workable business relationship no longer exists.
You shall pay William Buck (NZ) Ltd for all Services rendered and expenses incurred up to the date of termination, plus any other expenses associated with the transfer of information to a new advisor or other agents as appointed by you.
Upon termination and payment of outstanding fees and disbursements, papers, documents and property that you have provided to us, will, at your request, be returned to you promptly. Copies of papers and documents we have created for you, which you may need but no longer have, will be made available to you. Our drafts and work product belong to us. We reserve the right, subject to any applicable laws or rules of professional responsibility to the contrary, to destroy within a reasonable time any items described in this paragraph that are retained by us.
Upon the termination, we are released from the obligation to perform the Services. Termination shall be without prejudice to any accrued rights before the termination. The confidentiality, liability and indemnity provisions survive the termination.
24. Applicable Law
The Services and the Engagement shall be governed by the laws of New Zealand. Each party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts of New Zealand.
25. Anti-money Laundering and Countering of Financing of Terrorism Act 2009 (‘AML/CFT Act’)
- You acknowledge that we may have obligations under the AML/CFT Act legislation to keep records and make reports to regulatory authorities or law enforcement agencies about you or any agent acting on your behalf, the Services provided to you or transactions in which you are involved, and not to inform you or provide you with access to any information that could inform you of the disclosure of your information to any relevant regulatory authorities or law enforcement agencies.
- You acknowledge that, under the AML/CFT Act, William Buck and any of its directors, employees or agents will have no liability to you or any person for anything done or omitted to be done in good faith by any of them:
- in carrying out an applicable client identification procedure under the AML/CFT Act; or
- in fulfilment or purported fulfilment of a requirement of the AML/CFT Act not to provide a Designated Service or not to continue to provide a Designated Service; or
- in compliance or purported compliance with any other requirement under the AML/CFT legislation made under it.
No term of this agreement shall be deemed waived, and no breach of this agreement excused, unless the waiver or consent is in writing signed by the party granting such waiver or consent.
To the extent permitted by law, these Terms and Conditions in conjunction with the Engagement Letter form the entire agreement between us relating to the Services and supersede any representations, proposals, understandings, agreements or communications.
The Engagement does not create any rights in favour of or liabilities to any third party.
Last updated as of 8 November 2022.