Our Terms and Conditions

Introduction

1.1 These terms and conditions (Terms) apply to work performed for you by Beker Findlay Allan Limited (BFA), including its Personnel and related entities (Beker Findlay Allan/BFA/we/us). These Terms will apply except where we have otherwise agreed with you in writing.

1.2 “You" means our client as identified in an engagement letter or otherwise agreed.

1.3 These Terms, the Engagement Letter (including all Appendices) and any Price Agreement (together called this Agreement) will apply to all work we undertake for you. You accept and agree to this Agreement by continuing to instruct us.

1.4 If there is any conflict between these Terms and the Engagement Letter, then these Terms will prevail (except in circumstances where the Engagement Letter refers to and modifies a specific provision of these Terms). If there is any inconsistency between these Terms and any Price Agreement, the Price Agreement will prevail.

1.5 The terms of trade set out below govern all of the Services received by You from BFA. They replace all earlier BFA terms of trade and any conditions contained in any document used by you that may, or may not, have contractual effect.

Services

2.1 BFA will provide services as set out within the Engagement Letter and will use all reasonable commercial efforts to provide the Services in an efficient and timely manner, allocating the necessary expertise and using the appropriate professional standard.

Advice

3.1 Any advice given will be based on our understanding of the statute, case law, circumstances and practice as at the date of the advice. Therefore, any subsequent changes in the law, circumstances and practice may affect its conclusions.

3.2 We are under no legal obligation to update the advice for events occurring after the advice has been given, including subsequent changes in law, judicial decisions or Inland Revenue policy changes and do not undertake to do so.

3.3 During the supply of our Services, we may supply oral, draft, interim or ad hoc advice, reports or presentations (oral ad hoc advice) but in such circumstances our written advice or final written report will take precedence. No reliance should be placed by you on any oral ad hoc advice. We accept no liability for any such oral ad hoc advice. Where you wish to rely on oral ad hoc advice, you must inform us at the time the oral ad hoc advice is given and we will provide written confirmation of the advice.

Non-Disclosure Rights

4.1 Tax advice is subject to non-disclosure rights under the Tax Administration Act 1994 and may also be subject to legal privilege. If so, the Inland Revenue cannot require you to provide all of the advice given to them. You should not disclose tax advice to any other party, including the Commissioner of Inland Revenue and any of his/her officers without first obtaining professional advice. If the Inland Revenue request documentation, please seek advice as to what you are required to disclose. Disclosure to any other person may void the non-disclosure right.

Fees, expenses and payment terms

5.1 You will pay our fees for Services. It is important that you understand the basis upon which our fees are calculated, the times when fees and disbursements will be invoiced and our expectations for payment.

5.2 Unless otherwise agreed in writing, our fees are calculated based on a number of factors, including:

• Time and labour expended;
• The levels of skill, specialised knowledge and responsibility involved;
• The importance of the matter to you and the results achieved;
• The urgency and circumstances in which your matter is carried out;
• The complexity of the matter and the difficulty or novelty of the issues involved;
• The number and importance of the documents prepared and considered; and
• The reasonable costs of running a practice.

5.3 We can provide a fixed price or estimate for particular tasks or projects which can be adequately defined. Fixed prices or estimates will depend on the accuracy, timeliness, completeness, relevance, and reliability of records and information provided by you.

5.4 We will charge you for disbursements incurred by us on your behalf. Our fees are exclusive of general disbursements. Disbursements may include reasonable travel, accommodation and document handling costs (photocopying, printing and courier etc.).

5.5 Invoices will be issued monthly. Where the Services have not been completed by month end, a progress or interim invoice may be issued.

5.6 Invoices are payable in accordance with the terms specified on the invoice unless otherwise agreed in writing. Generally invoices are payable in full on receipt.

5.7 If your account remains unpaid and there is no satisfactory explanation for non-payment, we may do any or all of the following:

- Charge interest on overdue amounts at the rate of 1.5% on overdue amounts per month, or such other rate as may be stipulated in the Engagement Letter;

- Start proceedings to recover the amount owed, and charge default interest and any collection costs incurred; and/or

- Cease to do any further work for you, and will not release your files until all accounts are paid.

5.8 If we agree to address an invoice to another person, you will be required to pay that invoice, if, the other person does not.

5.9 You personally guarantee payment of all fees and charges on your personal accounts and any other entities where agreed; such as a Trust, Partnership or Company.

5.10 You agree that we have a general authority to deposit funds belonging to you (including income tax and GST refunds) to our account. Those funds will be applied in satisfaction of any amounts owing to us by you.

Your Responsibility to Us

6.1 Our team of accountants will be unable to start any work until all necessary information has been received.

6.2 As we offer an expert, timely, courteous service by our staff, we require you to do the same, by giving us any relevant requested information in a timely manner and by addressing our staff in a courteous and professional manner at all times.

6.3 To notify us of any issues, discrepancies or grievances you may have as soon as they arise so that we have the opportunity to rectify them immediately.

6.4 To pay our fees within our payment terms.

6.5 To provide us with the source records and documents needed to enable us to meet IRD and other governing bodies’ deadlines in an efficient, stress free and timely manner. We reserve the right to apply additional fees for work considered urgent.

6.6 You undertake that any additional information with relevance to the engagement that relates to the services provided by BFA must be communicated promptly to BFA; this includes any information that may result in being untrue, unfair or misleading.

6.7 You must give BFA (addressed to the Administration Department) not less than 7 days' prior written notice of any proposed change of name and/or any other change in your details (including, but not limited to, changes in the address, facsimile number, trading name or business practice).

Conflict of Interest

7.1 We will advise you if we become aware of any potential conflict of interest, and work with you to find a suitable solution. We have procedures in place to deal with issues that arise if the interests of two or more clients conflict.

7.2 Employees acting on behalf of BFA must also be free from conflicts of interest that could affect their ability to conduct the engagement and provide the services in your best interests. All activities that our employees are involved in outside BFA must be disclosed to BFA management promptly to allow any potential conflicts to be properly managed and disclosed on your behalf.

Communication

8.1 During our performance of the Services we may send messages and documents electronically. You recognise that electronic communication carries the risk of unintended misdirection, interception or non-delivery of confidential material. If you do not consent to the use of electronic communication in the course of providing the Services, you should notify us in writing.

8.2 We do not accept responsibility and will not be liable for any damage or loss caused in connection with the interception or corruption of an electronic communication or if it contains a virus. We will not be liable for any damage or loss arising as a result of any unauthorised copying, recording, reading, interference, delay or non-delivery of any document.

8.3 We do not accept any responsibility for any damage caused by your system, files, messages or documents.

8.4 We produce electronic newsletters and conduct seminars for clients. We will add you to our database so that you will receive newsletters and are aware of seminars that will be useful to you. However, please let us know if you do not wish to receive any such correspondence.

Problem Resolution

9.1 If you would like to discuss how our services may be improved or you have an issue with them, please write to, or phone, the Personnel identified in your Engagement Letter or any Director of BFA.

9.2 If a dispute arises out of the engagement, and is not settled through negotiation, the parties agree first to try in good faith to settle by mediation before resorting to arbitration litigation, or some other dispute resolution procedure.

9.3 In the event of a dispute, or where fees remain unpaid beyond the due date, BFA reserve the right to suspend provision of the services until the dispute is resolved. Suspension of the services does not affect your obligation to pay us for the services performed and invoiced to the date of the suspension.

Limitation of Liability

10.1 We will be liable to you for net losses, damages, costs or expenses (losses) caused by our gross negligence or wilful default, except:

We will not be liable if such losses are due to the provision of false, misleading, incorrect or incomplete information or documentation by you, our reliance on instructions provided by you, or due to any acts or omissions of any person other than BFA:

We will not be liable to you for accidental, incidental, indirect, special, punitive or consequential damages or for loss of profits or savings, even if BFA has been advised of, knew or should have known of the possibility of such damage or loss;

We will have no liability for any statements, representations, guarantees, conditions or warranties (representations) arising from communications (oral or written) which are not expressly contained in this Agreement. All representations to exercise reasonable care or render our Services with due care and skill which may otherwise be implied by statute, common law or custom are expressly excluded; and

The aggregate liability of BFA, whether to you or any third party, of whatever nature, whether in contract, tort or otherwise, for any losses (including interest) whatsoever and howsoever caused arising from or in any way connected with this engagement shall not exceed the fees invoiced or as stated in our engagement letter.

10.2 We will have no other liability of any nature, whether in contract, tort or otherwise, for any losses, caused, arising from or in any way connected with our engagement.

10.3 You agree that our liability for any and all loss or damage suffered by you (in aggregate) (whether direct, indirect or special) in connection with our engagement will be limited to the amount of professional fees paid to us for the Services or such other maximum amount as stated in our Engagement Letter. You agree to release us from all claims arising in connection with the Services to the extent that our liability in respect of such claims would exceed this amount.

10.4 If the Services were provided in respect of more than one financial year the fee on which the liability amount is based will be the fee paid in respect of the financial year in respect of which the act or omission occurred.

10.5 You agree that all claims against us, must be formally commenced within two years after the party bringing the claim becomes aware (or ought reasonably to have become aware) of the fact which gave rise to the action, but in any event no later than three years after any alleged breach of contract, tort, negligence, equity or other cause of action arises.

10.6 Where this Agreement applies to more than one Client, the limitation of liability contained in this clause must be allocated among these Clients. Such allocation is a matter to be resolved by those Clients.

Indemnities

11.1 To the maximum allowed by law you agree to indemnify and hold harmless BFA against any and all losses, claims, costs, expenses, actions, demands and damages, liabilities as outlined above or any other proceedings, whatsoever incurred by BFA in respect of any claim by a third party arising from or connected to any breach by you of your obligations under this agreement.

11.2 This indemnity for BFA will also include reliance on any information provided by you or any of your representatives which is false, misleading or incomplete.

11.3 The indemnities in this clause will include all costs incurred by us in regard to such liability or claim, including legal costs, the time of BFA Personnel and the costs of any expert engaged by us to assist in dealing with the claim or liability in any way.

Personal Information and Privacy

12.1 We will handle Personal Information in accordance with the Privacy Act 1993.

12.2 You agree to work with us to ensure that we both meet any obligations we may each have under the Privacy Act 1993 including, where relevant, notifying the individual to whom the Personal Information relates, who we are, and how we propose to use their information.

12.3 Where you provide us with any Personal Information, you confirm that you have collected the Personal Information in accordance with the Privacy Act 1993, that you are entitled to provide the Personal Information to us and that we may use and disclose the Personal Information for the purpose of providing the services to you or as otherwise permitted by this agreement.

Staff

13.1 During the provision of the Services, and for the period of six months thereafter, you will not make any offer of employment to any of our Personnel involved in the provision of the Services without our prior written consent.

You agree that, should you employ any of our Personnel involved in the provision of the Services anytime during the provision of the Services, and the period of six months thereafter, you will pay us a fee equal to 18% of the remuneration package offered to the person concerned within four weeks of such employment.

Force Majeure

14.1 Neither party to these terms and conditions shall be liable in any way for failure to perform, or delay in performing, its obligations under these terms and conditions if the failure or delay is due to a cause outside the reasonable control of the party that has failed to perform.

14.2 In the event of any such occurrence, that party must notify the other as soon as reasonably practicable and that other party will have the option of suspending or terminating this Agreement.

Variation

15.1 Any requested variation made by you to the engagement or work being undertaken must be notified in writing and agreed to by BFA. This may change the price of the engagement and will be communicated to you and agreed.

Term

16.1 Any Agreement will apply from the commencement date stated in the Engagement Letter or, where no commencement date is stated, from the date on which you agree to the Services.

Termination and Assignment

17.1 If either party commits a breach of this Agreement and fails to remedy the breach within 14 days of receiving written notice, the party giving the notice may cancel the Agreement on written notice, without prejudice to any other right it may have in the circumstances.

17.2 In any case this Agreement may be terminated by either party on written notice to the other party.

17.3 You must pay our fees for work done and for other charges incurred up to the time of termination.

17.4 You may not assign or transfer any of your rights or obligations under this Agreement.

17.5 If we have custody of any documents owned by you that are otherwise required by law to be held at our premises, you will ensure that the place at which they must be held is changed to your or some other address prior to the end of our appointment unless otherwise agreed.

Entire agreement

18.1 These Terms, the Engagement Letter and any Price Agreement record our entire understanding and agreement relating to the matters dealt within them. The Agreement supersedes all previous understandings or agreements (whether written, oral or both) between us relating to such matters