ENGAGEMENT TERMS AND CONDITIONS
(NON-AUDIT)
This document outlines the
standard terms and conditions of business ("Terms") for all firms
in the Staples Rodway network of independent firms ("Staples Rodway
firms"). These Terms apply to any current engagement and also to
any future engagements, whether or not we send you another copy of
them. We may change these Terms at any time, and will publish the
changed Terms on our website. The change will bind you in respect
of any matters on which we accept instructions after publication of
the change.
The Terms and the letter of
engagement to which they are appended ("the Letter of Engagement")
form the entire contract between you and the specific Staples
Rodway firm ("Staples Rodway", "we", or "us") named in the Letter
of Engagement for the services specified in the Letter of
Engagement ("the Contract"). In the event of conflict between
the Terms and the Letter of Engagement, the Terms will prevail,
unless the Letter of Engagement refers to and modifies a specific
provision of the Terms.
The Contract contains all terms
and conditions under which the services outlined in the Letter of
Engagement ("the Services") will be performed and replaces any
previous terms of engagement (whether written or implied) for the
provision of the Services. Unless otherwise agreed in
writing, any further work we may carry out for you will be carried
out under the terms of the Contract (i.e. the Contract will remain
in effect until superseded by another contract or
revoked).
Where the Letter of Engagement is
addressed to more than one addressee, each addressee is a party to,
and is bound by, the terms of the Contract. We will treat you
as having accepted this Contract if you continue to instruct us
after you receive it.
The Contract is between you and
the specific Staples Rodway firm named in the Letter of Engagement.
Staples Rodway in New Zealand is an association of independent
firms. Independent Staples Rodway firms will in no way be
accountable, or liable, for advice given by another independent
Staples Rodway firm.
Staples Rodway New Zealand Limited
is an independent member of Baker Tilly International. Baker Tilly
International Limited is an English Company. Baker Tilly
International provides no professional services to clients. No
Staples Rodway firm is Baker Tilly International's agent and no
Staples Rodway firm has authority to bind Baker Tilly International
or act on Baker Tilly International's behalf. None of Baker Tilly
International, each Staples Rodway firm, nor any of the other
independent member firms of Baker Tilly International has any
liability for each other's acts or omissions. In addition, neither
Baker Tilly International nor any other member firm has a right to
exercise management control over any other member firm.
The
Services
We will use all reasonable
commercial efforts to provide the Services in an efficient and
timely manner. We will allocate appropriate partners and staff to
perform the Services and may replace any personnel named in the
Letter of Engagement with personnel of similar skill.
You are responsible for
determining that the scope of the Services is sufficient to meet
your needs.
Unless otherwise specified in
writing, any timetables set for the provision of the Services will
be for planning purposes only and will not be binding upon
us.
Your
Responsibilities
To enable us to carry out our work
you agree:
- To provide us promptly with such accurate
and complete information as is reasonably required for the proper
performance of the Services, including access to appropriate
members of your staff, records, information technology systems and
premises. We will not perform a review or audit of the
information that you provide to us, or that others provide to us on
your behalf, and we will rely on the information and documents that
you/others on your behalf provide to us being true, correct and
complete.
- To provide us with information in
sufficient time for the engagement to be completed within any
statutory time limits.
- That you accept responsibility for any
failure to supply us with all relevant records and
information.
- That we can approach such third parties as
may be appropriate for information that we consider
necessary.
- To keep us informed of any major, unusual
or sensitive transactions, including proposed
transactions.
- If anything occurs after information is
provided to us by you/others on your behalf, that renders such
information untrue, unfair or misleading, you will promptly notify
us and, if required by us, take all necessary steps to correct any
communication or document issued which contains, refers to, or is
based upon such information.
- That, where we have relied on external
information or public records, we will not be liable for any direct
or indirect damage or loss caused by errors or omissions in such
external information or records.
- That, where the Services include the
compilation of financial statements, the responsibility for the
accuracy and completeness of the assertions in the financial
statements and the responsibility to users of the financial
information compiled by us remains with you. Your
responsibilities also include the maintenance of adequate
accounting records and internal controls and the selection and
application of appropriate accounting policies.
- That, where the Services include filing
returns of income, all returns of income are to be filed on the
basis of full disclosure of all sources of income, expenditure,
allowances and capital transactions.
- Where the Services include any taxation
services, to forward to us on receipt copies of letters and other
communications received from Inland Revenue (where relevant to the
Services) to enable us to deal with them as may be necessary within
the statutory time limits.
- That, where the Services include any
taxation services, you are legally responsible for filing correct
returns by the due date and for payment of tax on time.
Failure to meet the deadlines may result in automatic penalties
and/or the charging of use of money interest.
General
Authority
You agree that we will have a
general authority to deposit funds belonging to you (including
income tax and Goods and Services Tax ("GST") refunds) to our trust
account. Funds in our trust account will be handled according to
the rules of the New Zealand Institute of Chartered Accountants
("the Institute"). To the extent permitted by those rules, we may
apply funds held in trust in satisfaction of amounts owing to us by
you from any cause.
Fees
You agree to pay for the
Services. Unless otherwise specified in the Letter of
Engagement, fees for our services are based on the actual time
expended on the engagement at the standard hourly rates for the
work being performed by the individuals assigned to provide the
Services. The factors we will take into account in
determining the fees which we will charge are:
- the time and labour expended;
- the skill, specialised knowledge and
responsibility required to properly perform the
Services;
- the importance of the work to you, and the
results achieved;
- the urgency and circumstances in which the
work is undertaken and any imposed time limitations, including
those imposed by you;
- the complexity and/or novelty of the
work;
- the experience, reputation and ability of
personnel carrying out the work;
- the reasonable costs of running the
firm;
- the fee customarily charged in the market
and locality for similar accounting services.
Any estimate of fees provided in
the Letter of Engagement is indicative only and will not be binding
upon us. The accuracy of any estimate will depend on the
accuracy, completeness, relevance and reliability of records and
information provided by you.
In addition to our professional
fees, we may charge a fee for disbursements (to cover the cost of
items such as communications, printing and photocopying, access to
research material and local travel). We will also charge for
any out of pocket expenses incurred during the provision of the
Services. Where large expenses are to be incurred on your
behalf, we may require prior payment by you.
Our fees exclude GST. You
agree to pay GST imposed on us, now or in the future, in relation
to the fees charged under this Contract.
Unless otherwise specified in the
Letter of Engagement, our invoices are rendered either on
completion of the work or on a monthly basis, and must be paid
within twenty (20) calendar days.
Any queries in relation to an
invoice should be raised within ten (10) calendar days to
enable prompt resolution of any issues.
We may charge interest on overdue
amounts at the rate of 18% per annum. If your account remains
unpaid and there is no satisfactory explanation for non-payment we
may start proceedings to recover the amount owed, plus interest and
any collection and other associated costs incurred. We may
also do no further work for you, and not release your papers and
files, until all accounts are paid.
We are entitled to exercise a
general lien over all the books, records, related documents and
other such chattels that may come into our possession for the
purpose of performing professional services for you, until all
costs and charges whatsoever for our professional services of any
nature have been fully paid.
Without affecting our rights to
recover payment of outstanding amounts we reserve the right to
suspend or terminate this engagement and the Services we provide
under it in the event any invoices we render in accordance with the
Contract are not paid by the due date.
You authorise us to check your
credit status with any relevant third party (which may include, but
is not limited to, credit reference agencies) and to pass on credit
information about you to any credit reference/collection agency at
any time.
Limitation of
Liability
Unless the Service provided is an
audit, to the maximum extent permitted by law, you agree that our
liability for any and all loss or damage suffered by you in
connection with the Services will be limited to three times the
amount of professional fees paid to us for the Services and 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. 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 first
occurred.
You agree that all claims against
us, whether in contract, negligence or otherwise, must be formally
commenced in two years after the party bringing the claim becomes
aware (or ought reasonably to have become aware) of the facts which
gave rise to the action and in any event no later than three years
after any alleged breach of contract, negligence, or other cause of
action arises.
Where this Agreement applies to
more than one client, this limitation of liability must be
allocated among these clients. Such allocation is a matter to be
resolved by those clients.
To the maximum extent permitted by
law, we will have no liability for any statements, representations,
guarantees, conditions or warranties (collectively referred to as
"representations") arising from communications (oral or written)
which are not expressly contained in the Contract and 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.
Indemnities
To the maximum extent permitted by
law, except in the case of fraud or dishonesty on our part, you
agree to indemnify us and hold us harmless against any and all
losses, claims, costs, expenses, actions, demands, damages,
liabilities or any other proceedings, incurred by us in respect of
any claim by a third party (whether in contract, tort, or
otherwise) arising from any breach by you of your obligations under
the Contract.
To the maximum extent permitted by
law, we will not be liable for any losses, claims, expenses,
actions, demands, damages, liabilities or any other proceedings
arising out of reliance on any information provided by you or any
of your representatives which is false, misleading or incomplete.
You agree to indemnify us and hold us harmless from any such
liabilities we may have to you or any third party as a result of
reliance by us on any information provided by you, or any of your
representatives, which is false, misleading or
inappropriate.
The indemnities in this clause
will include all costs incurred by us in regard to such liability
or claim, including legal costs on a solicitor-client basis, and
the costs of any expert engaged by us to advise us or assist us in
dealing with the claim or liability in any way.
You agree to look only to the
specific legal entity named in the Letter of Engagement or the
insurance maintained by that entity to satisfy our obligations or
liabilities to you under the Contract or otherwise. No other
Staples Rodway firm, or our officers, partners or employees, or the
officers, partners or employees of any other Staples Rodway firm,
or the officers, partners or employees of any other baker Tilly
firm, or of Baker Tilly International, will be liable for our
obligations to you. You will not commence any action or proceeding
against any such persons or firms for the purposes of enforcing
your rights under the Contract. This clause is intended to be for
the benefit of, and enforceable by, those persons described in this
clause for the purposes of the Contracts (Privity) Act
1982.
Electronic
Communication
Email may be used to enable us to
communicate with you. As with other means of delivery this
carries with it the risk of inadvertent misdirection or non
delivery. It is the responsibility of the recipient to carry
out a virus check on any attachments received.
As internet communications are
capable of data corruption we do not accept responsibility for
changes made to such communications after their despatch. For
this reason it may be inappropriate to rely on advice contained in
an email without obtaining written confirmation of it.
All risks connected with sending
commercially sensitive information are borne by you and are not our
responsibility. If you do not accept this risk, you should
notify us in writing that email is not an acceptable means of
communication.
We may, from time to time,
communicate with you via electronic messages, including sending you
Commercial Electronic Messages (as defined in the Unsolicited
Electronic Messages Act 2007). Unless you advise us
otherwise, you consent to us sending such Electronic Messages to
you.
Conflict of
Interest
Except as disclosed in the Letter
of Engagement, Staples Rodway is not presently aware of any
conflict of interest which would affect our ability to provide
services to you. We will advise you if we became aware of any
potential conflict of interest, and we will work with you to find a
suitable solution.
Retention of
Records
During the course of our work we
will collect information from you and others acting on your behalf
and will return any original documents to you. You should
retain them for at least seven (7) years after the end of the
income year to which they relate. Inland Revenue may extend
this period for a further period not exceeding three (3)
years.
At the end of this engagement we
will keep your file and documents for the minimum period stipulated
by any relevant legislation. At the end of this period we may
destroy your file and documents. All files and documents will be
destroyed in a confidential manner.
Whilst certain documents may
legally belong to you, we intend to destroy correspondence and
other papers that we store which are more than seven (7) years old,
other than documents which we consider to be of continuing
significance. You must tell us if you require retention of a
particular document. You authorise us (without further
reference to you) to destroy all files and documents for this
engagement (other than any documents that we hold in safe custody
for you) seven (7) years after the engagement ends, or earlier if
we have converted those files and documents to electronic
format.
If we are provided with custody of
any documents by you or on your behalf, including share registers
or constitution documents, those documents will be retained during
the course of our appointment (unless their earlier return is
requested). At the end of our appointment they will be
returned to you, unless separate arrangements have been made. We
will be entitled to retain copies.
We reserve the right, in
appropriate circumstances, to exercise a lien over any documents
and files belonging to you which may be in our possession until all
work has been performed and all fees rendered have been
paid.
Our Work
Papers
You acknowledge that the work
papers we produce in the course of our work for you, which are not
an integral part of the end product of that work, are our property,
remain confidential to us and will not be provided to
you.
Where reasonably possible Staples
Rodway Limited will:
- inform you if any other person seeks access
to any work papers developed when providing the Services;
and
- seek your comment before granting access to
any person unless we are compelled to do otherwise at
law.
Ownership
We retain ownership of the
copyright and all other intellectual property rights relating to
the provision of the Services and of our working papers.
We may from time to time provide
you with software, spreadsheets and other intellectual property for
use with, or to assist with the provision of, our Services. Any
software, spreadsheets and other intellectual property provided by
us to you is provided for your own use and must not be copied,
distributed or used for any other purpose. We do not provide any
warranties in relation to your use of the software, spreadsheets
and other intellectual property provided and will not be liable for
any damage or loss incurred by you as a result of your use of any
software, spreadsheet and other intellectual property as
contemplated by this clause.
Reliance on Advice /
Limited Audience
During the supply of the Services,
we may supply oral, draft or interim advice. These do not
represent our final conclusions and no reliance may be placed by
you on them.
We will not be under any
obligation in any circumstances to update our advice, opinion or
report for any events occurring after the advice, opinion or report
was issued in final form.
The Services are provided to you,
as our client, for the purpose stated in the Letter of
Engagement. We accept no liability whatsoever to any third
party and you will indemnify us against any such third party
claim. Any documents issued by us (with the exception of
financial statements, tax returns and audit reports) should not be
provided to third parties without our prior written consent in each
specific instance.
Where the Services include the
compilation of financial statements, you must ensure that, when
providing copies of the financial statements to any other party,
each page has our reference stating: "These statements should be
read in conjunction with the Notes to the Financial Statements and
are subject to the Accountant's Compilation Report". You must
also ensure that our Compilation Report is attached to the
financial statements.
You must make any third party user
of the financial statements and tax return aware of the limited
scope of our engagement and that, if they wish to rely on the
financial statements, they should complete an audit or review
engagement.
Confidentiality of
Information
Both parties acknowledge that they
may, in the course of the engagement, acquire information that is
proprietary or confidential to the other party. Both parties agree
to hold such information in strict confidence, and not to divulge
such information, except:
- as required by law or
professional regulation;
- as is already, or becomes, public
knowledge, otherwise than as a result of a breach of any provision
of the Contract by the party disclosing or using that confidential
information;
- as authorised in writing by the
other party;
- to the extent reasonably required
by the Contract (and, without limiting the effect of this clause, a
party may disclose confidential information to those of its
officers, employees or professional advisers, on a need to know
basis, as is reasonably required for the implementation of the
Contract).
We are subject to review by
Staples Rodway New Zealand Limited, Baker Tilly International, the
Practice Review Board of the Institute and the Financial Markets
Authority (or a party appointed by them). The work we perform
for you may be selected by the examiners for their review and, if
it is, we are required to produce any document or other material in
our possession and co-operate in the review process. By
allowing us to undertake any engagement (whether or not a Letter of
Engagement is signed by you), you acknowledge that, if requested,
our files relating to any engagement will be made available by the
examiners for their review.
Our
Staff
You agree that during the
provision of the Services, and for the period of six months after,
you will not make any offer of employment to any of our partners or
employees involved in the provision of the Services, without our
prior written consent.
You agree that should you employ
any of our partners or employees involved in the provision of the
Services during the provision of the Services, and for a period of
six months after, you will pay us a fee equal to 20% of the
remuneration package offered to the person concerned.
Health and
Safety
We are required to comply with the
provisions of the Health and Safety in Employment Act 1992.
Where our partners and staff are on your premises, the Health and
Safety in Employment Act 1992 places responsibility for their
safety on you.
Disputes
We undertake to look into any
complaint carefully and promptly and to do all we can to explain
our position to you.
This engagement is governed by New
Zealand law, and any dispute arising out of any advice or material
is subject to the exclusive jurisdiction of New Zealand
courts.