Terms and Conditions as at 31 January 2019.
This document outlines the standard terms and conditions of business ("Terms") that apply to any current engagement and also to any future engagements.
The Terms and the letter of engagement to which they are appended ("the Letter of Engagement") form the entire contract between you and CloudTax ("CloudTax", "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carry out for you will be carried out under the terms of the Contract (i.e. the Contract will remain in effect until superseded by another contract or revoked).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.
We will use all reasonable commercial efforts to provide the Services in an efficient and timely manner. We will allocate 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.
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 and capital transactions.
- That you will forward to us on receipt, copies of letters and other communications received from any Inland Revenue authority (where relevant to the Services) to enable us to deal with them as may be necessary within the statutory time limits.
- That 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.
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 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; and
- the experience, reputation and ability of personnel carrying out the work.
Any estimate of fees provided in the Letter of Engagement is indicative only and will not be binding upon us, unless it is specifically described as a fixed fee with the Letter of Engagement. 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.
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 (14) 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, subject to jurisdictional limitations on the retention of documents.
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.
Any costs incurred in debt collection services will be payable by you, and we will seek full reimbursement of any collection costs.
Limitation of Liability
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 party, this limitation of liability must be allocated among these parties. Such allocation is a matter to be resolved by those parties.
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.
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. None of or our officers, or employees 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.
Anti-Money Laundering and Countering Financing of Terrorism Act 2009
For the avoidance of doubt, we will not undertake any activities that will cause CloudTax to be a designated nonfinancial business or profession within section 5 of the Anti-Money Laundering and Countering Financing of Terrorism Act 2009. The following are examples of services CloudTax will not provide to clients in the ordinary course of our business:
- acting as a formation agent of legal persons or legal arrangements;
- providing a registered office or a business address, a correspondence address, or an administrative address for a company, or a partnership, or for any other legal person or arrangement; or
- managing client funds
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 dispatch. 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.
You acknowledge that oral advice provided in meetings / via the telephone may not be our final considered view and if you wish to place reliance on any advice, you will seek written confirmation from us.
Conflict of Interest
Except as disclosed in the Letter of Engagement, CloudTax 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.
Health and Safety
We are required to comply with the provisions of the Health and Safety in Employment Act 1992. Where our employees are on your premises, the Health and Safety in Employment Act 1992 places responsibility for their safety on you.
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.
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.
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 CloudTax 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.
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.
If you become aware that any services provided does not conform to the scope of the work as understood, you will inform CloudTax immediately and give CloudTax the opportunity to rectify those services.
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.
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).