TERMS OF ENGAGEMENT
1.How these Terms Apply These Terms of Engagement (Terms) are to be read together with the description of the specific Services and any specific exclusions listed in our services proposal, any online client onboarding software, any invoice payment terms on your Invoice, and any special terms we may state in our Services Proposal.
2.Acceptance of these Terms You are taken to have exclusively accepted and are immediately bound, jointly and severally (where there is more than one client), by these terms of engagement when any one of the following occurs:
accept a Services Proposal issued by us via a third-party software used by the Advisor; and/or
accept our Services by email confirmation following issuance of a Services Proposal from us; and/or
accept our Services by paying us a commencement fee; and/or
accept our Services by e-invoicing; and/or
issue a purchase order to us following receipt of a Services Proposal,
and together these terms apply in conjunction with any specific exclusions or additional terms specified in any services proposal.
3.Our Contract Your acceptance of the Services Proposal and these general Terms together constitute our agreement with you (this Contract). This Contract governs the agreement between Count Me In Limited (Company Number 7373796) (us) and you, the named client/s in the Services Proposal, in respect of the Services.
4.The following words and expressions shall have the meanings set out below:
Advisor means the natural or incorporated person providing the Services and includes their permitted assigns, transferees, representatives, contractors.
Business Day means a day on which banks are ordinarily open and excludes a Saturday, Sunday or public holiday or any day falling within the period from 24 December to 5 January (both inclusive), irrespective of the days on which work is carried out. Any other reference to a ‘day’ shall mean a calendar day.
Confidential Information means all information which is written, verbal or electronic that is disclosed by either of the Parties to the other. It includes information that is stated as being ‘confidential’, ‘in confidence’, ‘restricted’ or ‘commercial in confidence’, and also information that is “Personal Information” (as such term is defined by the Privacy Act).
Consulting Materials means materials (including software, drawings, designs, reports, data, framework, template, methodology or process) supplied or developed by the Advisor (or its contractors or personnel) in connection with the Services.
Deliverables means an output resulting from the delivery of the Services. A Deliverable includes, but is not limited to, any Consulting Materials, performance of a service, supply of information or data stored by any means.
Disbursements means any disbursements incurred by the Advisor for software subscriptions, filing fees, registration fees, travel or any other disbursement or expense otherwise agreed to form part of the Services.
E-Invoice means an electronic invoice issued digitally between financial software systems.
Good Industry Practice means the standard of practice generally expected from an experienced, reasonable and prudent contractor or service provider operating in the Advisor’s industry in the same or similar circumstances.
Intellectual Property Rights means all intellectual property rights whether conferred by statute, at common law or in equity, including, but not limited to, copyright, trademarks, designs and/or patents.
New Intellectual Property Rights means Intellectual Property Rights developed under this Contract or as part of the performance of the Services.
Parties means the parties to this Contract and Party means either one of them.
Personnel means all individuals engaged by either Party in relation to this Contract or the delivery of Services and includes, but is not limited to, the owner of the Advisor, its directors, employees, subcontractors or agents.
Pre-existing Intellectual Property Rights means Intellectual Property Rights developed before the date of, or independently from this Contract.
Privacy Act means the Privacy Act 2020 and includes any codes or regulations issued under that Act.
Privacy Breach means any:
unauthorised or accidental access to or use of, or disclosure, alteration, loss, or destruction of any “Personal Information” (as such term is defined by the Privacy Act); and/or
any action that prevents the Client from accessing “Personal Information” (as such term is defined by the Privacy Act) on either a temporary or permanent basis,
whether or not caused by a person inside or outside of the Advisor or attributable in whole or in part to any action by the Advisor, or ongoing.
Tax Agent Where these Terms refer to a “tax agent” this term refers to the Advisor in its capacity to perform tax agent services.
SCOPE OF SERVICES
5.Services Proposals are Indicative Only The Scope of Services outlined in a services proposal is an indication of the Services required to complete your project or meet your requirements. This scope is subject to change as your requirements change.
6.Scope Variations We will confirm any changes to your Services in writing via email. These terms shall apply to any scope increases, alterations or changes.
7.Fixed Term Services This Contract is for the duration of the Services, any project or one-off engagement until the agreed completion date or until otherwise terminated by either Party in accordance with these Terms.
8.Ongoing Services This Contract is for the duration of any ongoing Services and shall continue for the period that the Client continues to accept the performance of the Services.
9.Standards The Advisor must supply the Services with due care, skill and diligence and in accordance with Good Industry Practice as would be expected from a leading supplier in the same industry.
10.Timeliness The Services must be performed on time except where a delay is caused by the Client.
11.Limitations and Exclusions The following shall apply to the Services:
Bookkeeping Services All Services relating to bookkeeping are limited to the collection, classification and summary of financial information you supply to the Advisor; and
Accounting Records The Advisor accepts no responsibility for the accuracy and completeness of the accounting records and other information you supply to us or for the reliability, accuracy and completeness of the financial information compiled on the basis of those records and information; and
Accounting Policies The Advisor accepts no responsibility for the maintenance of adequate accounting records, an adequate internal control structure and the selection and application of appropriate accounting policies within your organisation. The Client is solely responsible to users of the financial information the Advisor compiles; and
Irregularities The Services exclude the investigation or reporting of any discovery of internal control weaknesses, errors, illegal acts or other irregularities, including without limitation, fraud, or non-compliance with laws and regulations. However, we will inform you of any such matters which come to our attention during the course of our engagement.
12. Where you have selected to engage with us for ongoing services (Service Plan), the following terms shall also apply:
Plan Services Any Services delivered under a Service Plan will be limited to delivery of a specific number of activities as described in your services proposal; and
Service Plan frequency The Services under your Service Plan will be performed at the frequency agreed with you; and
Cancellation of a Service Plan You may cancel your Service Plan at any time by emailing us with at least thirty (30) calendar days’ notice; and
Service Plan Renewal Any renewal of a Service Plan will be an auto-renewal on the current, published price for your chosen service as at the date of renewal. Where you wish to cancel a Service Plan before renewal, you must provide us with at least thirty (30) calendar days’ notice; and
Default of Service Plan Payments Where your applicable Service Plan fee is not paid when it becomes due and payable, or a recurring payment method is rejected or fails, we reserve our rights to suspend delivery of Service Plan Services until such arrears have been paid; and
Annual Instalment Service Plan Cancellation Fees Where you cancel a Service Plan and the applicable fees are for annual services payable in instalments and you have received the benefit of such annual services, you remain liable to pay the full balance of the annual fees; and
Out of Scope Services and Service Plans Our Service Plans will list the inclusions and exclusions for the Service Plan you have selected. You agree that any work or Services requested by you which is not listed as an ‘inclusion’ in the description of the Service Plan scope but which we agree will be performed will be invoiced in addition to the agreed Service Plan fee at our standard rates or subject to a quote.
13.Timely and Accurate Information The Client must ensure that it provides information required by the Advisor in a timely and accurate manner.
14.Review and Approval of Tax Returns or Reports The Client shall be required to review and approve all and any final returns or reports for reasonableness and correctness, and will need to understand the importance and risks of signing tax returns or other statutory compliance engagements as being true and correct statutory records.
15.Software Subscriptions The Client shall pay all costs associated with ongoing subscriptions for the Client’s own invoicing, job management or other technology solutions required to be used by the Advisor for the performance of the Services.
16.Decisions The Client must make decisions and give approvals reasonably required by the Advisor to enable delivery of the Services, within reasonable timeframes.
17.Scope Changes The Client must notify the Advisor of any scope changes to the Services and/or change to the Client requirements as soon as practicably reasonable.
FEES, INVOICES AND PAYMENT
18.Fees In consideration for its provision of the Services, the Client will pay to the Advisor the fees set out in the relevant services proposal or invoice (as applicable).
19.Invoices The Advisor shall either:
supply a valid tax invoice for the Fees to the Client by email or via the applicable accounting software; or
issue an e-invoice for the Fees to the Client
in all cases at the agreed frequency and amount.
20.Disbursements The Client will reimburse the Advisor for all Disbursements reasonably incurred by the Advisor in performing the Services.
21.Invoice Frequency The Advisor shall invoice the Client at the agreed frequency, this being one of the following:
on a specific frequency at agreed hourly or daily rates; or
at an agreed frequency for service plan fees; or
at an agreed frequency or interval for specified milestones or stages of the Services; or
in specified percentages at specific dates.
22.Time and Method for Payment All amounts specified in an Invoice will require payment on or before the specified due date (Amounts Owing). We will issue Invoices to you by email. You may pay by any of the methods specified on the Invoice except where we specify a payment method for Service Plans.
23.No Set Off or Deduction of Payment of Amounts Owing Amounts Owing which are due and payable must be made without set-off or deduction of any kind. You also agree that you will not be entitled to withhold payment in respect of any undisputed amount.
24.If You Dispute the Amount Owing If you receive an Invoice and you consider you owe us a lesser amount, you must inform us within three (3) Business Days of receiving our Invoice. If you have not within this timeframe, we are entitled to treat any amount stated in our Invoice as an Amount Owing and it remains immediately due and payable. If you do respond and we do not agree, we reserve our rights to use the Dispute Resolution procedures set out in these Terms.
25.Non-Payment of Amounts Owing If you do not pay an Amount Owing by the due date and we have not commenced any invoice dispute resolution, this amount becomes an Overdue Amount Owing. After a period of seven (7) Business Days of issuance of our Invoice, we shall have the right to apply late payment interest at a rate of 8%. This shall be calculated daily and compound weekly at that rate if we elect to do this. This applies before and after any judgment (if applicable).
26.Debt Collection or Recovery Costs If an Overdue Amount Owing remains unpaid for fourteen (14) Business Days or more from the Due Date, we reserve our rights to engage the services of a debt collection agency or solicitor to take proceedings to recover the Overdue Amount Owing. You will be liable for the costs incurred by us in the collection of any unpaid amounts including but not limited to legal costs, debt collection fees and internal administration fees.
27.Administration Fees In the event we are obliged to perform any additional actions to recover any monies owed by you, we reserve the right to apply reasonable administrative fees for phone calls, texts, emails, and in-person visits to follow up and recover any Overdue Amount Owing in addition to any costs or expenses.
SUSPENSION AND TERMINATION OF SERVICES
28.Suspension of Services The Advisor reserves all rights to suspend Services for the following reasons:
There is an Overdue Amount Owing and such default continues for seven (7) Business Days from the Due Date; and/or
A recurring payment for a Service Plan is rejected or is in arrears by more than seven (7) Business Days from the Due Date; and/or
You fail to provide approval, supply information or sign required documentation that is essential to the performance of our Services; and/or
In the reasonable opinion of the Advisor, the Services require suspension until certain actions or Client Obligations have been fulfilled.
In each case, the Advisor shall be entitled to suspend the Services with immediate effect until the arrears have been cleared or the Client Obligations have been fulfilled.
To avoid doubt, where the Advisor suspends Services due to one or more of the above, we shall not be liable for any charges, fines, fees, costs or expenses of any kind incurred by the Client due to the suspension of Services.
29.Termination of Services for Convenience Without prejudice to a Party’s other remedies at law, each Party has the right to terminate the Services by giving the other ten (10) Business Days written notice. Where the Services are on a critical path (including but not limited to a tax return), this clause shall not take effect until after such critical path Services have been completed.
30.Amounts Owing on Termination The following shall apply where the Services are terminated prior to completion or part way through a Service Plan:
For all one-off or project Services The Client shall be liable to meet all Fees and Disbursements incurred up to and including the date of termination.
Pre-Paid Services Where the Client has pre-paid for any or all of the Services to be terminated, any balance remaining shall be credited to any other Service in progress with the Advisor or a pro-rated refund shall be applied (as applicable).
Service Plan Cancellations Where a Service Plan is terminated, the terms relating to cancellation fees and/or payment for amounts owing up to the termination date shall apply as per clause 12 (Annual Instalment Service Plan Cancellation Fees).
31.Termination for Breach or Insolvency Neither Party shall be liable to the other Party for any delay, loss or damage suffered by it due to the exercise of its rights under this clause, if one or more of the circumstances listed in the following two clauses applies.
32.Termination for Force Majeure Neither party will be liable for any non-performance of its obligations under this Contract due to a force majeure event. For the purposes of these terms, “force majeure” means an event or circumstance which leads to a default of either party under this Contract due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm, port closure or border closure plus any national or global pandemic effects, including, for the avoidance of doubt, any default due to any implementation of any regulation, directive, rule or measure by any government, state or other authority under the governing law of this Contract. This clause does not apply to a default by you to pay Amounts Owing.
33.Breach of these Terms The Services may be terminated by either Party where the other Party is in breach of this Contract and such breach is not remediable or is remediable, but continues and remains unremedied after the expiry of the notice period set out in a default notice, which must be given by the non-defaulting party to the defaulting party, and provide the defaulting party with a reasonable time period to remedy the breach.
34.Insolvency the other Party becomes insolvent or bankrupt, convenes a meeting with its creditors or make an assignment for the benefit of its creditors or a receiver, manager, or liquidator (provisional or otherwise) or similar person is appointed in respect of the Advisor, its business or its assets.
35.Accrued Rights The termination or expiry of this Contract does not affect any rights of a Party which arose prior to the applicable termination date.
36.Advisor Liability Cap To the extent permitted by law, the aggregate liability of the Advisor to the Client, whether in contract, tort (including negligence) or otherwise, will be limited to $500 or the fee, whichever is the lower only where the Advisor fails to perform the Services due to no fault or breach of the Client.
37.No Liability for Consequential Loss The Advisor shall not be liable for any indirect, consequential, special or economic loss, cost liability, damage or expenses howsoever arising.
38.Reduction of Liability The Advisor’s liability is reduced proportionately to the extent that any such loss or damage was caused or contributed to by any negligent act, omission or default of the Client or the employees or agents of the Client.
39.Ownership of Pre-existing Intellectual Property Rights Pre-existing Intellectual Property Rights remain the property of their owner. Nothing in or done in connection with this Contract will affect the ownership of any Intellectual Property Rights that arise, or have arisen, independently of the activities of either party in connection with this Contract.
40.New Intellectual Property Rights in Consulting Materials Where the Client has commissioned Consulting Materials to be solely created for the Client’s internal use, the clause below shall apply, providing always that the Advisor shall retain ownership of all New Intellectual Property Rights in any framework, template, methodology or process associated with such Consulting Materials.
41.New Intellectual Property Rights in Deliverables All and any New Intellectual Property Rights created in the Deliverables become the property of the Client when they are created, and the Advisor agrees to do all things necessary to give effect to this clause.
42.Licence The Client may use, copy and adapt any materials created as part of any Deliverables and/or the Consulting Materials for any purpose required by it and the Advisor grants to the Client a perpetual, exclusive and royalty-free licence to use, for its organisational purposes, all Intellectual Property Rights in any Deliverables and/or Consulting Materials that are not owned by the Client to receive the full benefit of the Services and Deliverables, and use, copy or modify the Consulting Materials.
43.Advisor Warranties The Advisor warrants that it is legally entitled to grant the licence in the clause above, and the Client’s use of anything provided by the Advisor and incorporated in the Services and Deliverables, for the purposes communicated to, or that are or ought to be known by, the Advisor, will not infringe the rights, including Intellectual Property Rights, of any third party.
44.Protection of Confidential Information Each Party agrees to not use or disclose the other Party's Confidential Information to any person or organisation other than:
to the extent that use or disclosure is necessary for the purposes of providing the Deliverables or Services or, in the case of the Client, using/receiving the Deliverables or Services; and/or
if the other Party gives prior written approval to the use or disclosure; and/or
if the information has already become public, other than through a breach of the obligation of confidentiality by one of the Parties.
45.Software System Access and Confidentiality Where the Advisor shall require access to an online software system to retrieve data for the performance of the Services, all such information accessed, viewed, downloaded or stored shall be treated as Confidential Information of the Client and is subject to these Terms.
46.Consulting Materials are Confidential Information of the Client Any Consulting Materials not intended for public consumption or display that are prepared for the purposes of this Contract will be deemed to be confidential information of the Client, and not the Advisor.
47.Security Each Party will put in place and maintain adequate security measures to safeguard the other Party's Confidential Information from unauthorised access or use by third parties. Each Party shall:
notify the other Party if it becomes aware of any suspected or actual unauthorised use, copying or disclosure of the other Party’s Confidential Information; and
comply with any reasonable direction of the other Party in relation to any suspected or actual breach of the obligations in this clause as the other Party reasonably requests.
48.Obligation to Inform Personnel Each Party will ensure that its Personnel:
are aware of the confidentiality obligations in this Contract; and
do not use or disclose any of the other Party's Confidential Information except as allowed by this Contract.
49.Protection of Personal Information Where the Advisor has access to Personal Information under or in connection with this Contract, the Advisor must:
only use, access, store, process or transmit that Personal Information to the extent necessary to provide the Deliverables or Services; and
ensure that the Personal Information is protected against loss, access, use, modification, or disclosure that is not authorised by the Client; and
provide all information and assistance reasonably required by the Client to comply with its obligations under the Privacy Act in relation to this Contract; and
comply with the Privacy Act and not do anything under this Contract that would cause the Client to breach the Privacy Act.
50.Privacy Breaches If the Advisor becomes aware of any Privacy Breach in relation to this Contract it will notify the Contract Representative as soon as possible and take all reasonable steps:
to identify the person or persons affected; and
required by the Client to undertake its own investigation; and
stop, and/or mitigate the impact of, any Privacy Breach and prevent its reoccurrence; and
the Advisor shall not notify any person of the Privacy Breach without prior written approval of the Client.
51.Details of the Dispute must be Supplied If either Party considers that a dispute has arisen in relation to any matter governed by this Contract, that party must give the other party written notice outlining the basis of the dispute (Dispute Notice).
52.Dispute must be Discussed The Contract Representative for each Party must then meet to resolve, in which case both Parties will promptly attempt to resolve the dispute by consultation at the lowest practicable level of escalation.
53.Escalation of Dispute If the dispute is not resolved by discussion, meeting and/or other informal means within ten (10) Business Days of the date of the Dispute Notice the Parties may agree to submit the dispute to mediation.
54.Mediation If a Dispute is referred to mediation, the mediation will be conducted by:
A single mediator agreed by the Parties or, failing agreement, on the terms of the Resolution Institute Mediation Rules; and
At a fee to be agreed by the Parties or if they cannot agree, at a fee determined by the Resolution Institute; and
55.Obligations Continue If there is a Dispute, each Party will continue to perform its obligations under this Contract as far as practical given the nature of the dispute.
56.Taking court action: Each Party agrees not to start any court action in relation to a dispute until it has complied with the process described in this clause, unless that Party requires urgent relief from a court.
57.Interlocutory Relief Nothing in these terms shall affect either party’s right to seek urgent interlocutory relief.
58.Costs and Expenses Each Party will pay its own costs of mediation or alternative dispute resolution under this clause.
59.Requirements All notices must be in writing and delivered by hand or sent by post, courier or email to the recipient Party's address for notices.
60.Receipt of Notices A notice will be considered to have been received when the following has occurred:
if delivered by hand or sent by courier, on the date it is delivered;
if sent by post within New Zealand, on the 5th Business Day after the date it was sent;
if sent by post internationally, on the 9th Business Day after the date it was sent; or
if sent by email, at the time the email enters the recipient's information system and it is not returned undelivered or as an error,
but a notice received after 5pm on a Business Day or on a day that is not a Business Day will be considered to have been received on the next Business Day
61.Variations A variation must be agreed by both Parties and recorded in writing and signed by both Parties, or through an exchange of emails, where the signatories or authors have delegated authority to approve the variation.
62.In this Contract, unless the context requires otherwise:
a reference to any monetary amount is to New Zealand currency;
a reference to time is to New Zealand time;
a reference to “includes” is to “includes without limitation” and references to “included” and “including” shall be construed accordingly;
a reference to a Party includes that Party’s personal representatives, successors and permitted assigns;
a reference to a person includes a corporation sole and a body of persons, whether corporate or unincorporated;
a reference to a document, statute or regulation includes a reference to that document, statute or regulation as amended or replaced from time to time; and
headings will not be used in the interpretation of this Contract.
63.No misleading statements The Advisor warrants that it has not made any misleading or deceptive statements or omissions influencing the Client’s entry into this Contract. A breach of this warranty will be deemed a material breach of this Contract.
64.Consumer Guarantees Act The Client is acquiring the services for the purposes of a business, and the provisions of the Consumer Guarantees Act 1993 are excluded accordingly.
65.Amendments Must be In Writing Amendments to this Contract will not be effective unless they are in writing and are signed by each Party.
66.Independent Contractor Nothing in this Contract constitutes a legal relationship between the Parties of partnership, joint venture, agency, or employment.
67.No representing Neither Party has authority to bind or represent the other Party in any way.
68.Transfer of rights or obligations The Advisor must not transfer any of its rights or obligations under this Contract without the Client’s prior written approval.
69.Severability If and to the extent any provision or part of a provision is illegal or unenforceable, such provision or part of a provision will be severed from this Contract and will not affect the continued operation of the remaining provisions of this Contract.
70.Clauses that remain in force The clauses that by their nature should remain in force on expiry or termination of this Contract are all clauses in the following sections (Dispute Resolution), (Suspension and Termination of Services), (Confidential Information), (Notices), (General) and all Definitions.
71.Entire Agreement This Contract sets out the entire agreement between the Parties. It replaces any previous communications, negotiations, arrangements or agreements that the Parties had with each other relating to the Services before this Contract was signed, whether they were oral or in writing.
72.Waiver If a Party does not immediately enforce its rights under this Contract that:
does not mean that the other Party is released or excused from any obligation to perform at the time or in the future; and
does not prevent that Party from exercising its rights later.
73.Electronic Acceptance The parties agree that any legal requirement may be met by using electronic means in accordance with the Contract and Commercial Law Act 2017. In this clause the term “legal requirement” has the meaning given to it by section 219(2) of the Contract and Commercial Law Act 2017.
74.Signing Not Required It is not necessary for this Contract to be signed unless we insist on it. The Client is bound by these Terms if it continues to act in a way that is consistent with the arrangement and discussions held with the Advisor in relation to the Services, and/or the Advisor has incurred time and expense to commence any part of the Services.
75.Governing Law This Contract shall be governed by the laws of New Zealand and the Parties irrevocably submit to the exclusive jurisdiction of the courts of New Zealand.
END OF TERMS