Standard Terms of Engagement

1. Introduction

These terms and conditions (Terms) apply to work performed for you by Greenhawk Chartered Accountants (including its various divisions, personnel and related entities) (Greenhawk /we /us /our). These Terms will apply except where we have otherwise agreed with you in writing.

“You” means our client as identified in an engagement letter or otherwise agreed. Where you are a company or other corporate or unincorporated entity, we act only for you. We do not act for your shareholders, directors or members unless we expressly agree otherwise.

These Terms and the Engagement Letter (together called this Agreement) will apply to all work we undertake for you with respect to this engagement. You accept and agree to this Agreement by continuing to instruct us.

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).

In providing the services, we may engage other people and resources but the obligation to provide the services remains with us.

 

2. Our Services

We will provide the services as agreed with you. We will use all reasonable commercial efforts to provide the Services in an efficient and timely manner and maintain the appropriate professional standard, using reasonable care, skill and expertise.

The conduct of any engagement will be in accordance with the standards, rules and ethical requirements of the Chartered Accountants Australia and New Zealand (CAANZ).

You are responsible for ensuring that our scope of services is sufficient for your needs. We rely on the information you provide and do not accept responsibility for maintaining accounting records, internal controls, or accounting policy selection. You must supply all required information on a timely basis and notify us if circumstances change.

We can report to you regularly and a completion date can be provided if necessary. Unless otherwise agreed in writing, any timetables set will be for planning and management purposes only and will not be binding upon us.

 

3. Compilation of Financial Statements (SES-2)

We will compile financial statements in accordance with Service Engagement Standard No. 2 – Compilation of Financial Information (SES-2). The financial information will be prepared in accordance with New Zealand GAAP or the applicable reporting framework and disclosed in the financial statements and in our compilation report. The financial statements will be compiled from information provided by you. We will not audit, review, or otherwise verify such information. Our standard disclaimer will accompany your future financial statements. We may decline to issue a report if information is incomplete or misleading.

You will provide accurate and complete information necessary to compile the financial statements and tax returns. You accept responsibility for all records and information supplied, the payment of taxes, and ensuring that footer references and disclaimers are not removed from compiled statements. You acknowledge that uninformed readers could be misled without understanding the limitations of compiled information.

 

4. Advice

Any advice given will be based on our understanding of the statute, case law and practice as at the date of the advice. Therefore, any subsequent changes in the law and practice may affect its conclusions. It is also possible that others, including the Inland Revenue Department and the Courts, could reach conclusions that differ from those expressed in our advice. This is particularly relevant for tax advice due to the nature of tax law.

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. You should ask us to confirm advice previously given if you want to repeat a transaction or if an action that we have advised on is delayed. We accept no responsibility for different outcomes arising from such changes.

It is our policy to set out in writing (which may be by e-mail) any advice on which you may wish to rely. In many cases, our advice will include a summary of our understanding of the facts or background on which our advice is based. It is important that you tell us if you think this summary does not accurately reflect the facts since our analysis of the transaction and resulting advice may then change.

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

 

5. Non-disclosure Rights

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.

 

6. Fees

You will pay our fees for Services. It is important to us 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.

We normally agree the price with you before we start work. If no upfront price agreement has been made, the fee is based on the time we take to do the work and the value of the service provided. We take into account of 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
• thereasonable costs of running a practice.

If payment of any invoice is not received by the due date, we may:

• Discontinue further work until the account is paid
• Charge interest of 1.5% per calendar month on any outstanding balance after the due date. This interest will be compounded from the due date to actual
• Give the debt to our solicitor or debt collection agency for In such circumstances you consent to us providing our solicitor or debt collection agency with information necessary to collect the debt. Recovery fees and costs will be charged to you as well as the debt owing.
• Hold all records and related material which have been used for this engagement until all outstanding fees are

We are always prepared to discuss the amount of any invoice with you. If you have any questions or concerns, please contact the person responsible for the management of your matter.

 

7. Expenses and Disbursements

We will charge you for disbursements incurred by us on your behalf. Our fees are exclusive of disbursements.

These disbursements are charged directly in relation to costs incurred by us with an appropriate mark-up.

Our fees and disbursements are exclusive of GST and we will be entitled to recover any applicable GST from you.

 

8. General Authority

You agree that we will have a general authority to deposit funds belonging to you (including income tax and GST refunds) to our trust account.

Funds in our trust account will be handled according to the rules of CAANZ including the professional standards issued by the CAANZ Council. To the extent permitted by those rules and the professional standards, we may apply funds held in trust in satisfaction of amounts owing to us by you.

 

9. Accident Compensation Corporation

Where authorised (and where relevant to you), you confirm that we may act as your agent, and for all associated entities, for ACC levy purposes, including delegated access and authority to query and update ACC information.

 

10. Anti-Money Laundering, FATCA, CRS and Other Laws

We must comply with our obligations under all laws binding on us, including:

• anti-money laundering and countering financing of terrorism laws; and
• laws relating to tax reporting and withholdings.

In order to do so, we may be required to conduct customer due diligence on you, persons acting on your behalf, and other relevant persons such as your beneficial owners or persons who have effective control. In the case of a trust, this may include both trustees, appointors and the beneficiaries of the trust. In the case of a company, this may include directors, direct and ultimate shareholders and key executives. We may not be able to act or continue acting for you until this is completed.

We may also be required to verify the source of wealth and source of funds where enhanced due diligence is required. You authorise us to collect this information from your lawyers, investment advisers and banks.

We may be required to provide information about you, persons acting on your behalf, and other relevant persons as described above to government agencies. We may not be permitted to tell you or such persons if we do provide such information.

Please ensure that any of the persons described above in respect of whom we collect information are aware of and consent to this. Please also ensure that all information provided to us is accurate. We are not responsible to you or anyone else for anything done or not done by us (including any provision of information by us to any third party or any withholdings made) in order to comply with our legal obligations.

We may appoint a third party to conduct the required customer due diligence on our behalf and your authorisation also extends to the collection and provision of information by any such third party. You will be liable for any direct costs we incur in contracting with a third party to conduct customer due diligence on our behalf.

 

11. Information

You will provide us promptly with accurate and complete information 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 be entitled to rely upon the accuracy of all information provided by you, or by others on your behalf, without independently verifying it.

You must notify us promptly if any information provided by you is rendered untrue, unfair or misleading. If required, you must take all necessary steps to correct any communication or document issued which contains, refers to or is based upon such information.

Information made available by you, or by others on your behalf, to or which is otherwise known by, any of our Personnel who are not engaged in the provision of the Services will not be deemed to have been made available to those of our Personnel who are engaged in the provision of the Services to you. We have no duty to disclose information to you which is not actually known by those working on your matter, even though that information may be relevant to you.

 

12. External Information

In advising you we may rely on, or provide you with, external information or public records (eg, government agencies or registers). This information may not always be accurate or complete. We do not accept responsibility and will not be liable for any direct or indirect damage or loss caused by errors or omissions in external information or public records.

 

13. Resources utilised

We advise that we utilise a range of staff and independent contractors to undertake your work, all are required to comply with our confidentiality, security, and privacy obligations.

We also use trusted service providers to support the delivery of accounting, tax, and advisory services. These may include (depending on your engagement) Xero, Microsoft, Adobe, Spotlight Reporting, Fathom, SyncHub, ApprovalMax, Missive App, Annature, MailChimp, FYI Docs, Google, Dropbox, Technical Solutions Ltd., Audit Shield, PandaDoc, Content Snare, Tax Traders, TMNZ, Sharesight and CCH New Zealand.

These providers supply IT and software, data storage, data entry, accountancy insurance, AML identify verification, and tax pooling services. They are located in New Zealand, Australia, the United States, and the Philippines (noting that we are unable to control the location of some of these service providers). Regardless of location they must meet the security and privacy requirements we are bound to in New Zealand.

By signing our Terms of Engagement, you consent to us providing information required for us to perform our agreed services to the service providers above.

 

14. Conflict of Interest

We are not aware of any conflict of interest which would affect our ability to provide the Services to you.

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.

 

15. Confidentiality

We conduct this engagement in accordance with professional standards, rules and ethical requirements of CAANZ. Information we obtain in the course of this engagement is subject to confidentiality requirements, as well as our obligations under the Privacy Act 1993. We will not disclose that information to other parties, without your express consent, except as required by law or professional obligations, staff or subcontracted labour.

As a practice entity with members of CAANZ, we are subject to and bound by its disciplinary procedures and rules. Our work and files are subject to the practice review rules of CAANZ under which compliance with professional standards by members is monitored. These procedures and rules require us to disclose to CAANZ, its reviewers and its disciplinary bodies our files and work papers including client information. By allowing us to undertake any engagement (whether or not an engagement letter is signed by you), you acknowledge that, if requested, our files relating to any engagement will be made available to CAANZ, its reviewers and its disciplinary bodies. CAANZ and its reviewers are obliged to keep all information confidential.

You agree not to disclose confidential information about us or our concepts or techniques unless required to do so by law.

We will not disclose identifiable confidential information acquired in the course of conducting professional work unless required by law or where there is a professional right or duty to disclose the information.

 

16. Workpapers and client documents

All papers (including workpapers), documents, concepts and techniques we produce in the course of our work for you, regardless of whether they form part of the finished product, are and will remain our property. We also retain the copyright and all intellectual property rights in all original material provided to you.

Where reasonably possible we will:

• inform you if any other person requires access to your workpapers; and
• ask your permission before granting access to any person unless we are compelled to do otherwise by law.

In certain circumstances the Practice Review Board of the CAANZ and the Inland Revenue Department may request access to information and workpapers and we may be legally obliged to allow such access.

At the end of this engagement we will keep your file and documents for the minimum period stipulated by any relevant legislation. We reserve the right to destroy correspondence and other papers once we (reasonably) believe they need no longer be retained, unless you write to us telling us not to do so.

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 and will be returned to you at the end unless separate arrangements have been made. Those documents remain owned by you. We will be entitled to retain copies.

We reserve the right to exercise a lien over any documents and files belonging to you, which may be in our possession.

 

17. Ownership

We retain ownership of the copyright and all other intellectual property rights in the product of the Services. You will acquire ownership of any end product of the Services on payment of our fees. Subject to our obligations of confidentiality, for the purposes of delivering Services to you or other clients, we will be entitled to use, develop or share with others any knowledge, experience, skills, methodologies, systems, spreadsheets, databases or know how gained through performing the Services without an obligation to account to you.

We may provide you with software, spreadsheets and other intellectual property for use with, or to assist with the provision of, the product of our Services. Any software, spreadsheets and other intellectual property provided by us is 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 these items and will not be liable for any damage or loss incurred by you in connection with your use of them.

 

18. Personal Tax Implications

Some of the matters on which we advise on (e.g. employee share schemes, superannuation funds) may have personal tax implications for directors and employees. Unless advising on such personal tax implications is expressly included in the Services, we will not bear any liability to you or any relevant directors or employees in respect of those personal tax implications. You indemnify us against any claim by any such directors or employees in this respect.

 

19. Staff 

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 4 weeks of such employment.

 

20. Benefit of advice

Unless otherwise specifically stated in the Engagement Letter, any advice or opinion relating to the Services is provided solely for your benefit and may not be disclosed in any way.

Any deliverables issued in the course of our work (including but not limited to services, reports, advice or other information and any parts of those documents) cannot be passed on to third parties unless prior approval has been given in writing by us. If we consider it necessary, we will withhold approval. We accept no liability to any third party who does obtain and rely on any advice or opinion relating to the Services.

The name or logo used by Greenhawk at any time, as part of a deliverable, should not be distributed to a third party (including by way of electronic distribution) without our prior written consent, other than where used solely for referral of our professional services to other potential clients.

 

21. Communication

During our performance of the Services we may wish to send messages and documents electronically. You acknowledge that electronic communication carries with it the possibility of inadvertent 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.

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 or interference with that document, for any delay or non-delivery of any document and for any damage caused by your system or any files by that message or document.

 

22. Problem resolution

If at any time you would like to discuss how the Services can be improved or you would like to make a complaint, you can telephone the Greenhawk Personnel identified in the Engagement Letter. We will investigate any complaint promptly to resolve the difficulties. If you are still not happy, you can also lay a complaint with CAANZ.

In the event of a dispute, or where fees remain unpaid beyond the due date, we reserve the right to suspend provision of the Services until such time as the dispute is resolved or the fees are paid. The suspension of the Services will not affect your obligation to pay us for Services rendered to the date of suspension.

 

23. Limitation of liability

We will be liable to you for net losses, damages, costs or expenses (losses) caused by our gross negligence or willful 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 Greenhawk;

• 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 Greenhawk 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 (together 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 Greenhawk, 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 1 (one) times the annual accounting

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.

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. 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.

We will not be liable for any amounts owed to IRD.

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.

You agree that all claims against us, whether in contract, tort, negligence, equity or otherwise, 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 and in any event no later than three years after any alleged breach of contract, tort, negligence, equity or other cause of action arises.

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.

You agree to look only to Greenhawk or the insurance maintained by us to satisfy our obligations or liabilities to you under this Agreement or otherwise.

None of our Affiliates, nor ours or our Affiliates’ officers, partners or Personnel will be liable for our obligations to you. You will not commence any action or proceeding against any such persons for the purposes of enforcing your rights under this Agreement. 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. This clause may be amended without the need to obtain the consent of any of those persons.

 

24. Equitable sharing of liability

Subject to the maximum aggregate liability specified in clause 23, our aggregate liability shall be limited to that proportion of the total damage for which we are responsible. Each party shall bear only that part of any loss or damage that is proportionate to the loss or damage it has directly caused. In determining responsibility for loss or damage caused, account shall be taken of any loss or damage that is reasonably attributable to any third party. Nothing in these terms and conditions affects the rights, obligations or remedies of the parties under the Contributory Negligence Act 1947 or the Law Reform Act 1936.

 

25. Indemnities

You agree to indemnify us:

• against any and all losses, claims, costs, expenses, actions, demands, damages, liabilities or any other proceedings, incurred or suffered by us, including 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 this Agreement or by reason of any action we take in good faith;
• against any and all losses, claims, costs, expenses, actions, demands, damages, liabilities or any other proceedings, incurred or suffered by us in respect of any claim by a third party (whether in contract, tort, or otherwise) from your use of our work product; and
• from any 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, incorrect or incomplete or as an result of the failure to provide information which was material information held in your possession or

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 Greenhawk Personnel and the costs of any expert engaged by us to assist in dealing with the claim or liability in any way.

 

26. Health and Safety

We are required to comply with the provisions of the Health and Safety at Work Act 2015 (Act) by taking all reasonably practical steps to ensure the health and safety of our people. The Act places responsibility for their safety on you when they are visitors to your site. It may be appropriate for your Health and Safety representative to hold a safety briefing at the beginning of the assignment for those involved, regarding the hazards, provision of any appropriate equipment, awareness of accident reporting procedures and emergency procedures.

 

27. Privacy

Over the course of our engagement with you, we may collect and hold personal information concerning you.

We will comply with the Privacy Act 1993 when collecting, holding or disclosing personal information concerning you, your shareholders, members, customers, employees and other individuals with whom you have dealings (Stakeholders). You have the right of access to and correction of, your personal information held by us.

We may also use contact details and other information (e.g., subjects you are interested in) to keep you informed about developments in areas relevant to the Services, other accounting or financial services or seminars we offer. If you do not want your personal information used for this purpose, please let us know.

If your Stakeholders have not been made aware of the possible collection, holding, use or disclosure of their personal information by us as part of this engagement, please inform us. If necessary, we may take action to raise the awareness of your Stakeholders.

 

28. Force Majeure

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.

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 immediately suspending or terminating this Agreement.

 

29. Governing law and jurisdiction

This Agreement is governed by New Zealand law. Both parties agree to irrevocably submit any disputes arising under this Agreement first to mediation and then to the exclusive jurisdiction of the Courts of New Zealand.

 

30. Disputes

The parties undertake to use all reasonable efforts in good faith to resolve any dispute which arises between them.

If the parties fail to resolve the dispute, then the parties will try to settle their dispute by mediation before resorting to litigation. Either party may initiate mediation by giving written notice to the other party. The mediator should be agreed by the parties, but if the parties cannot agree on one within five business days after the mediation has been initiated, then the mediator shall be selected by LEADR (Lawyers Engaged in Alternative Dispute Resolutions) or its successor. Before the mediation commences, the parties and the mediator must sign a mediation agreement in an agreed form.

 

31. Variation

No variation of this Agreement will be valid unless confirmed in writing by authorised signatories of the parties on or after the date of signature of the Engagement Letter, provided that these Terms may be amended by us and the amended Terms shall apply to any engagement entered into after we notify you of the amended Terms.

 

32. Term

This 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 accept the engagement.

 

33. Termination and Assignment

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 this Agreement on written notice, without prejudice to any other right it may have in the circumstances.

In any case this Agreement may be terminated by either party on written notice to the other party. You must pay our fees for work done and for other charges incurred up to the time of termination. If you are on a monthly fee arrangement, these reflect the on-going nature of accounting and tax service provision and are not refundable if the engagement is terminated part-way through a financial year. You may not assign or transfer any of your rights or obligations under this Agreement.

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.

 

34. Entire agreement

The agreement records our entire understanding and agreement relating to the matters dealt within them. This Agreement supersedes all previous understandings or agreements (whether written, oral or both) between us relating to such matters.

 

35. Partial invalidity

If any provision of this Agreement is or becomes invalid or unenforceable, that provision will be deemed deleted from this Agreement. The invalidity or unenforceability of that provision will not affect the other provisions of this Agreement. All the other provisions will remain in full force and effect to the extent permitted by law, subject to any modifications made necessary by the deletion of the invalid or unenforceable provision.

 

36. Updates to Terms

These Terms may be updated from time to time and will apply once provided to you directly or published on our website. Any necessary modifications required by CAANZ Rules will apply automatically.

 

Definitions

Words not defined elsewhere in these Terms have the meaning set out below.

Appendices mean the appendices or attachments to the Engagement Letter.

Client means you and all other entities and group companies you instruct us to act for under this Agreement.

Engagement Letter means the engagement letter in any form including email and any Appendices.

Personnel means principals, other employees, consultants and contractors.

Services means the services set out in our Engagement Letter.