Terms of Trade
David Hooper CA Limited
This document together with the Engagement Letter, form the Contract between the client, the entities listed and David Hooper CA Ltd. The terms defined in the Engagement Letter have the same meaning in these Terms of Business.
1. SERVICES
We will provide the services described in our Engagement Letter.
Our work will be based solely on the information provided, the circumstances made known to us and the assumptions set out in our correspondence. We rely on you bringing to our attention as soon as possible any changes in the information as originally presented as it may impact on our advice.
We will rely on the information supplied by you in performing our services under this agreement and will not independently verify the accuracy of such information. As appropriate, however, we may seek clarification of information or ask you for additional information.
You are responsible for supplying all information required to prepare your accounts and various tax returns. David Hooper CA Ltd can not be held accountable for incomplete or erroneous data supplied.
Changes in the law and in interpretations may take place before our advice is acted upon or may be retrospective in effect and we assume no responsibility for changes occurring after the date of completion of the relevant services.
Time Scale: We will use our best endeavours to carry out our obligations in the Engagement Letters or otherwise agreed. However, unless both of us specifically agree otherwise in writing, the dates contained in the Engagement Letters or otherwise advised are indicative dates intended for planning and estimating purposes only and are not contractually binding.
Changes to services: Either of us may request changes to the services to be provided or changes to any other aspect of the Terms of Business. Both of us agree to work together to enable both parties to assess the impact of any requested changes on the cost, timing or any other aspect of the services.
2. IRD REVIEW
We would point out that from time to time the IRD will undertake a review of returns that have been filed, and it should be appreciated that our annual fee does not allow for that eventuality. In the event of a review that requires an input from us, we would be available to assist as required, and the fee for those services would be as per Clause 7 of this agreement, or as agreed at the time.
3. TRUSTEESHIPS
Confirmation: You confirm that you are aware of your core obligations and duties as trustees of the above mentioned trust and that you will fulfil those duties and obligations. You confirm that you have read and are familiar with the trust deed and that you will obey the terms of the trust.
You acknowledge your duties as:
i. The duty of efficient management;
ii. The duty to keep and render full and proper accounts to the beneficiaries;
iii. The duty to act personally; and
iv. The duty of loyalty.
You confirm that you will:
i. Act impartially between beneficiaries and act at all times in their best interests
ii. Provide full information to the beneficiaries where properly demanded.
iii. Not profit from your trusteeship
iv. Avoid conflict of interest with your trustees’ fiduciary position.
v. Agree that you are responsible for the fees incurred in relation to the trustee company listed above. David Hooper CA Ltd is permitted to charge fees for administration of the Trustee Company and any services provided on behalf of the trustee company for other professional services in respect to the trust.
vi. Agree to hold at least one formal trustee meeting during each year.
As a trustee you accept a role with important responsibilities. You must be aware of your obligations and duties. The signing of this document confirms that you have read and understood your obligations and duties and that you agree to carry them out prudently.
This Engagement Letter when accepted by you will be a contract to be governed by and in accordance with appropriate New Zealand legislation.
4. DIRECTORSHIPS
As a Director of the company(s) you are charged with certain obligations and responsibilities.
You confirm that you are aware of your core obligations and duties as a director(s) of the company(s) and that you will fulfil those duties and obligations. You confirm that you have read and are familiar with the company(s) constitution(s) and that you will abide by the terms contained therein.
You confirm that you will:
i. Acknowledge your responsibility for the day to day running of the company’s business.
ii. In doing so you acknowledge the duties that you owe the Company, the shareholders, and to those that deal with the company.
iii. You will act honestly in what you believe are the best interests of the company and its stake holders, and with as much care as may be reasonably expected of you in all circumstances.
iv. You will maintain companies registers as required by the companies act.
v. You will not become involved in any behaviour or action that would be deemed likely to create substantial risk of serious loss to the company’s creditors. (“Reckless trading”).
vi. You must be able to abide by the solvency two step test at all times as prescribed by the Companies Act 1993.
vii. Advise us immediately if any of the following situations apply to you in person:
a. You are under the age of 18 years.
b. You are an undischarged bankrupt
c. You are prohibited from directing, promoting, and or participating in the management of a company under statutory provisions
d. You are subject to a property order made under sections 30 or 31 of the Protection of Personal and Property Rights Act 1988
e. You are not qualified pursuant to the constitution of a particular company.
This Engagement Letter when accepted by you will be a contract to be governed by and in accordance with appropriate New Zealand legislation.
5. REPORTING
We will report to you in accordance with the terms set out in the Engagement Letter. You may make copies of any reports for your own internal use but you must not provide the report or copies of it to any third party without first obtaining our written consent. Such consent will only be granted on the terms we deem appropriate which will include that we accept not duty or responsibility to any other party who may seek to rely on our report. In some cases appropriate releases from third parties may be required.
Intellectual property: Intellectual property rights in all documentation, system, materials, methodologies and processes brought to the assignment or created in the course of the assignment shall remain and be vested in David Hooper CA Ltd.
6. INFORMATION
You agree to provide in a timely fashion all information and documents reasonably required to enable us to provide the services. Unless otherwise stated in the Engagement Letter, we will not independently verify the accuracy of such information and documents and we will not be liable to any loss or damage arising from any inaccuracy or other defect in any information or documents supplied by you.
Any work papers prepared by us in relation to your engagement remain our property.
7. FEES AND PAYMENT
How fees will be calculated: Unless otherwise agreed, our fees are calculated on the basis of the time spent on the assignment by our directors and staff and on the levels of skill and responsibility involved.
Our hourly rates are as per our website (www.davidhooperca.co.nz). These rates are subject to change without notice, but are accurate at the time of writing.
Time is charged in ten minute units, with the minimum charge being one unit.
Expenses: These are charged separately and include our reasonable travel, subsistence and document handling costs (photocopying, printing, fax and courier, etc) incurred in connection with the services. Any special expense arrangements will be agreed and set out in the Engagement Letter.
Taxes: Our fees and, where applicable, out-of-pocket expenses and other expenses (our “Billings”) are exclusive of any Goods and Services Tax that may apply to the services, goods or other things we supply. Out billings will be increased to reflect the amount of any such tax.
Payment of invoices: Our invoices will be issued on completion of work or as set out in the Engagement Letter. All invoices will be due within 7 days of issue.
David Hooper CA Ltd retains the right to charge interest of 2% per month on accounts which are overdue by more than one month.
David Hooper CA Ltd retains the right to add any costs incurred should a collection agency be used to recover an unpaid account, including time we spend on debt recovery.
8. TERMS OF TERMINATION
Duration of contract: This Contract will apply from the commencement date stated in the Engagement Letter, if any, or where no commencement date is specified from the date of acceptance of the Contract as specified in the Engagement Letter.
Termination: The Contract may be terminated by either party by written notice if either party fails to remedy a material breach of these Terms of Business.
Otherwise the contract may be terminated by either party provided 30 days written notice of such termination is given.
Ownership of Documents: It is agreed that ownership of all documents supplied by you to assist in the performance of professional services shall remain your property. It is also agreed that all documents produced by David Hooper CA Ltd in the performance of these professional services shall remain the property of David Hooper CA Ltd. For the avoidance of doubt it is agreed that David Hooper CA Ltd shall retain ownership of all work papers and drafts created and used by us in the course of performing professional services.
It is agreed that nothing in the above affects the right of David Hooper CA Ltd to claim a general lien over your books, records and other documents.
9. CONFIDENTIALITY
To afford the maximum protection to your confidential interests, all employees of David Hooper CA Ltd are employed under a service contract which contains a clause strictly forbidding the unauthorised disclosure of information.
The institute of Chartered Accountants Australia & New Zealand Institute may require access to your entity’s records and information in our possession which support the working papers relating to your entity’s affairs for the purpose of the Institute’s quality assurance function.
10. LIABILITY
a. David Hooper CA Ltd will use reasonable skill and care in the provisions of the services to our clients as set out in the Engagement Letter.
b. The total aggregate liability of David Hooper CA Ltd to our clients for loss or damage (including indirect and consequential loss or damage), cause by, or resulting from, or in relation to, the services, including whether arising from breach of contract, negligence, or any other tort, in equity or otherwise, and whether or not David Hooper CA Ltd was advised of the possibility of such loss or damage, is limited to an amount equal to five times our fees for those services.
c. You agree that if you make any claim against us for loss as a result of a breach of our contract, and that loss is contributed to by your own actions, then liability for your loss will be apportioned as is appropriate having regard to the respective responsibility for the loss, and the amount you may recover from us will be reduced by the extent of your contribution to that loss.
d. For GST return engagements we can not be held liable for incomplete or erroneous information supplied by you, particularly transactions occurring outside the ordinary accounting records such as property or barter transactions. You warrant that you will hold relevant tax invoices for items where GST is claimed. You certify that valid tax invoices are held by you fir any GST claims over $50.00 in value.
e. David Hooper CA Ltd can not be held accountable for incomplete or erroneous data supplied.
11. COMMUNICATION
a. During our performance of the services we may wish to send messages and/or documents to each other by email. As email carries with it the possibility of inadvertent misdirection, or non-delivery of confidential material, unless you notify us otherwise you consent to the use of email.
b. Where message are sent by email, we will adopt the following procedures and require you to do likewise:
If sending a confidential email message, the sender will indicate a response is not wanted in an electronic form. All risks connected with sending by email commercially sensitive information relating to your business 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.
c. Both parties will carry out procedures to protect integrity of data, in particular, it is the recipient’s responsibility to carry out a virus check on any attachments before launching any documents, whether received on disk or otherwise.
12. EXCLUSIVITY
David Hooper CA Ltd will not be prevented or restricted by anything in this Contract from providing services for other clients.
13. JURISDICTION
Applicable law: This Contract shall be governed by and in accordance with the laws of New Zealand.
Resolving disputes: Should any dispute arise between us we will attempt to resolve the dispute in good faith by senior level negotiations. Where both of us agree that it may be beneficial we will seek to resolve the dispute through mediation. If the dispute is not resolved through negotiation or mediation each of us agrees that the New Zealand Courts will have exclusive jurisdiction in connection with the resolution of the dispute.
14. GENERAL
Entire Agreement: This Contract comprising the Engagement Letter and Terms of Business forms the entire agreement between us in relation to the services. It replaces and supersedes any previous proposals, correspondence, understandings or other communications whether written or oral.
This document together with the Engagement Letter, form the Contract between the client, the entities listed and David Hooper CA Ltd. The terms defined in the Engagement Letter have the same meaning in these Terms of Business.