Terms of Engagement

1 General

1.1 These Standard Terms of Engagement (the Terms) apply to any current engagement and also to any future engagement, whether or not we send you another copy of them. We are entitled to change these Terms from time to time, in which case we will send you amended Terms. Our relationship with you is governed by New Zealand law and New Zealand courts have exclusive jurisdiction.

2 Services

2.1 The services we are to provide for you (the Services) are outlined in our letter of engagement along with any further instructions that you provide to us in writing (or that we record in writing).

2.2 In order to provide you with efficient advice and services and to provide the most cost-effective service, it may be that part, or all of your instructions will be delegated to other professionals in our firm.

3 Client Care and Service

3.1 The Law Society client care and service information is set out below. Whatever legal services your lawyer is providing, they must:

1. Protect and promote your interests and act for you free from compromising influences or loyalties.

2. Discuss with you your objectives and how they should best be achieved.

3. Act competently, in a timely way, and in accordance with instructions received and arrangements made.

4. Provide you with information about the work to be done, who will do it and the way the services will be provided.

5. Protect your privacy and ensure appropriate confidentiality.

6. Treat you fairly, respectfully and without discrimination.

7. Give you clear information and advice.

8. Keep you informed about the work being done and advise you when it is completed.

9. Charge you a fee that is fair and reasonable and let you know how and when you will be billed.

10. Let you know how to make a complaint and deal with any complaint promptly and fairly.

4 Financial

4.1 Fees

The basis upon which we will charge our fees is set out in our engagement letter.

If the engagement letter specifies a fixed fee, we will charge this for the agreed scope of the Services. Work which falls outside that scope will be charged on an hourly rate basis. We will advise you as soon as reasonably practicable if it becomes necessary for us to provide services outside of the agreed scope and, if requested, give you an estimate of the likely amount of the further costs.

Where our fees are calculated on an hourly basis, the hourly rates of the people we expect to undertake the work can be provided to you. Any differences in those rates reflect the various levels of experience and specialisation of our professional staff. Time spent is recorded in six-minute units.

Hourly fees may be adjusted (upwards or downwards) to ensure the fee is fair and reasonable to take into account matters such as the complexity, urgency, value and importance of the Services. Full details of the relevant fee factors are set out in Rule 9 of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 (the Rules).

4.2 Disbursements, Expenses and Administration Costs

In providing the Services we may incur disbursements and payments to third parties on your behalf. You authorise us to incur these disbursements (which may include items such as search fees, court filing fees, registration fees, travel and courier charges) which are reasonably necessary to provide the Services. You also authorise us to make payments to third parties on your behalf which are reasonably required to undertake the Services (which may include items such as experts’ costs or counsel’s fees). These will be included in our invoice to you, shown as “disbursements” when the expenses are incurred. In addition to disbursements, we may charge office expenses to cover out of pocket costs and which are not recorded as disbursements. These include items such as photocopying and printing, postage and phone calls. We will advise you if this fee is likely to exceed $100. Disbursements and office expenses will be itemised separately, and we will notify you if any fees, disbursements or administration charges need to be paid for in advance.

4.3 GST

Our services will usually attract Goods and Services Tax (GST). If this is the case, GST is payable by you on our fees and charges.

4.4 Invoices

We may send interim invoices to you, usually monthly, and will send a final invoice on completion of the matter, or termination of our engagement. We may send you invoices more frequently when we incur a significant expense or undertake a significant amount of work over a shorter period of time.

4.5 Payment

Invoices are payable within seven days from the date of the invoice, unless alternative arrangements have been made with us. You authorise us to deduct our fees and other expenses from funds held in our trust account on your behalf on provision of an invoice to you, unless those funds are held for a particular purpose. If you have difficulty in paying any of our accounts, please contact us promptly so that we may discuss payment arrangements. Payment may be made by internet, cash or cheque. If paying by internet, our trust account deposit number is 03 1577 0029937 01.

If your account is overdue we may:

1. require interest to be paid on any amount which is more than 31 days overdue, calculated at the rate of 2% above the overdraft rate that our firm's main trading bank charges us for the period that the invoice is outstanding;

2. stop work on any matters in respect of which we are providing services to you;

3. require an additional payment of fees in advance or other security before recommencing work;

4. recover from you in full any costs we incur (including on a solicitor/client basis) in seeking to recover the amounts from you, including our own fees and the fees of any collection agency.

4.6 Estimates

You may request an estimate of our fee for undertaking the Services at any time. If possible, we will provide you with an estimate (which may be a range between a minimum and a maximum amount or for a particular task or step). An estimate is not a quote. Any significant assumptions included in the estimate will be stated and you must tell us if those assumptions are wrong or change. We will inform you if we are likely to exceed the estimate by any substantial amount. Unless specified, an estimate excludes GST, disbursements and expenses.

4.7 Third Parties

Although you may expect to be reimbursed by a third party for our fees and expenses, and although our invoices may at your request or with your approval be directed to a third party, you remain responsible for payment to us in accordance with these Terms if the third party fails to pay us.

4.8 Trust Accounting

We operate a trust account. All money received from you or on your behalf will be held to your credit in our trust account. Payments out of the trust account will be made either to you or to others with your authority. Written authorisation from you (and if we are acting for more than one of you, from all of you) will be required when payment is to be made to a third party. Before making a payment to another account we may require verification of the account details by either of a copy of a deposit slip or bank statement showing the account number, a signed authority from you including the bank account details, or a signed letter from the relevant financial institution providing bank account details.

A full record of our trust account is kept at all times. A statement of trust account transactions detailing funds received and payments made on your behalf will be provided to you periodically and at any time upon your request.

Unless it is not reasonable or practicable to do so, when we hold significant funds for you for more than a short period of time we will place them on call deposit with a bank registered under section 69 of the Reserve Bank of New Zealand Act 1989, subject to you having completed to the bank’s satisfaction any request for information relating to the deposit or certification required by the bank. Interest earned from call deposits, less withholding tax [and an administration fee of 5% of the interest payable to us at our discretion], will be credited to you.

4.9 Professional Indemnity Insurance

We hold professional indemnity insurance that meets or exceeds the minimum standards specified by the Law Society. We will provide you with particulars of the minimum standards upon request.

4.10 Lawyers’ Fidelity Fund

The Law Society maintains the Lawyers’ Fidelity Fund for the purpose of providing clients of lawyers with protection against pecuniary loss arising from theft by lawyers. The maximum amount payable by the Fidelity Fund by way of compensation to an individual client is $100,000. Except in certain circumstances specified in the Lawyers and Conveyancers Act 2006, the Fidelity Fund does not cover a client for any loss relating to money that a lawyer is instructed to invest on behalf of the client.

5 Confidentiality

5.1 We will hold in confidence all information concerning you or your affairs that we acquire during the course of acting for you. We will not disclose any of this information to any other person except:

1. to the extent necessary or desirable to enable us to carry out your instructions; or

2. as expressly or impliedly agreed by you; or

3. as necessary to protect our interests in respect of any complaint or dispute; or

4. to the extent required or permitted by law.

5.2 Confidential information concerning you will as far as practicable be made available only to those within our firm who are providing legal services for you.

5.3 In our dealings with you we will collect and hold personal information about you. We will use that information to carry out the Services and to make contact with you about issues we believe may be of interest to you. Provision of personal information is voluntary but if you do not provide full information this may impact on our ability to provide the Services.

5.4 Subject to clause 5.1, you authorise us to disclose, in the normal course of performing the Services, such personal information to third parties for the purpose of providing the Services and any other purposes set out in these Terms.

5.5 We may disclose your name and address to third parties such as credit agencies to perform a credit reference or to undertake credit management or collection processes if it is reasonable to do so.

5.6The information we collect and hold about you will be kept at our office and/or at secure file storage sites (including electronic file storage sites) elsewhere. If you are an individual, you have the right to access and correct this information. If you require access, please contact our office.

5.7 The Financial Transactions Reporting Act 1996 requires us to collect from you and to retain information required to verify your identity. We may therefore ask you to show us documents verifying your identity (such as a passport or driver’s licence). We may retain copies of these documents. We may perform such other customer verification checks as to your identity and checks as to the source of any funds associated with any transaction to which the Services relate as we consider to be required by law.

6 Documents, Records and Information

6.1 We will keep a record of all-important documents which we receive or create on your behalf on the following basis:

1. We may keep a record electronically and destroy originals (except where the existence of an original is legally important such as in the case of wills and deeds).

2. At any time, we may dispose of documents which are drafts, duplicates, or which are trivial (such as emails which do not contain substantive information), or documents which belong to us.

3. We are not obliged to retain documents or copies where you have requested that we provide them to you or to another person and we have done so, although we are entitled to retain copies for our own records if we wish to do so.

6.2 We will provide to you on request copies or originals (at our option) of all documents to which you are entitled under the Privacy Act 1993 or any other law. We may charge you our reasonable costs for doing this.

6.3 Where we hold documents that belong to a third party you will need to provide us with that party’s written authority to uplift or obtain a copy of that document.

6.4 Unless you instruct us in writing otherwise, you authorise us and consent to us (without further reference to you) to destroy (or delete in the case of electronic records) all files and documents in respect of the Services, 7 years after our engagement ends (other than any documents that we hold in safe custody for you or are otherwise obliged by law to retain for longer). We may retain documents for longer at our option.

6.5 We own copyright in all documents or work we create in the course of performing the Services but grant you a non- exclusive licence to use and copy the documents as you see fit for your own personal or commercial use. However, you may not permit any third party to copy, adapt or use the documents without our written permission.

7 Termination

7.1 You may terminate our retainer at any time.

7.2 We may terminate our retainer in any of the circumstances set out in the Rules, including the existence of a conflict of interest, non-payment of fees, and failure to provide instructions.

7.3 If our retainer is terminated you must pay us all fees, disbursements and expenses incurred up to the date of termination.

8 Conflicts of Interest

8.1 We are obliged to protect and promote your interests to the exclusion of the interests of third parties and ourselves as set out in the Rules. This may result in a situation arising where we have a conflict of interest.

8.2 We have procedures in place to identify and respond to conflicts of interest or potential conflicts of interest. If a conflict of interest arises, we will advise you of this and follow the requirements and procedures set out in the Rules. This may mean we cannot act for you further in a particular matter and we may terminate our engagement.

9 Duty of Care

9.1 Our duty of care is to you and not to any other person. We owe no liability to any other person, including for example any directors, shareholders, associated companies, employees or family members unless we expressly agree in writing. We do not accept any responsibility or liability whatsoever to any third parties who may be affected by our performance of the Services or who may rely on any advice we give, except as expressly agreed by us in writing.

9.2 Our advice is not to be referred to in connection with any prospectus, financial statement, or public document without our written consent.

9.3 Our advice is opinion only, based on the facts known to us and on our professional judgement, and is subject to any changes in the law after the date on which the advice is given. We are not liable for errors in, or omissions from, any information provided by third parties.

9.4 Our advice relates only to each particular matter in respect of which you engage us. Once that matter is at an end, we will not owe you any duty or liability in respect of any related or other matters unless you specifically engage us in respect of those related or other matters.

9.5 Unless otherwise agreed, we may communicate with you and with others by electronic means. We cannot guarantee that these communications will not be lost or affected for some reason beyond our reasonable control, and we will not be liable for any damage or loss caused thereby.

10 Limitations on our Obligations or Liability

10.1 To the extent allowed by law, our aggregate liability to you (whether in contract, tort, equity or otherwise) in connection with our Services is limited to the amount available to be payable under the Professional Indemnity Insurance held by the firm.

11 Anti-Money Laundering

11.1 Anti Money Laundering and Counter Financing of Terrorism Act 2009 (“AML”), Foreign Account Tax Compliance Act (“FATCA”), Common Reporting Standard (“CRS”).

11.2 We are required to comply with the Anti Money Laundering and Counter Financing of Terrorism Act 2009 (“AML”) by obtaining and verifying information from prospective and existing clients. This is called Customer Due Diligence (“CDD”). To facilitate this, you authorise us to disclose such personal information as necessary, to third parties, for the purpose of providing the Services and any other purposes set out in these Terms.

11.3 The United States Foreign Account Tax Compliance Act (“FATCA”), has been incorporated into New Zealand law which we are also required to comply with.

11.4 In addition, we are required to provide information pursuant to the OECD’s Standard for Automatic Exchange of Financial Account Information in Tax Matters, which incorporates the Common Reporting Standard (“CRS”).

11.5 In order to meet our report obligations under FATCA/CRS we may be required to disclose to any bank with whom our trust account is held (currently Westpac Bank) and/or the New Zealand Inland Revenue Department, information about whether any of our clients for whom money is held in our trust account and who are:

1. United States citizens;

2. United States tax residents; or

3. tax residents of any country with which New Zealand has entered a bilateral agreement to implement CRS.

11.6 We may be required to provide information about the identity of any such clients (or their “controlling persons”) and funds held on their behalf to our bank and/or the Inland Revenue Department.

11.7 By instructing us, you expressly authorise us to disclose to our bank and/or Inland Revenue Department such information as we may be required to disclose in order to comply with our FATCA/CRS obligations.

11.8 Furthermore, if you are, or subsequently become a United States citizen, United States tax resident, or tax resident of any country with which New Zealand has entered a bilateral agreement to implement CRS, you agree that you will advise us of the position in this regard.

12 Complaints

12.1 Client satisfaction is one of our primary objectives and feedback from clients is helpful to us. If you would like to comment on any aspect of the service provided by us, including how we can improve our service, please contact our office.

12.2 If you have any concerns or complaints about our services, please raise them as soon as possible with the person to whom they relate. They will respond to your concerns as soon as possible. If you are not satisfied with the way that that person has dealt with your complaint, please raise the matter directly with Tim Hart or Geneva Lowe. We will inquire into your complaint and endeavour in good faith to resolve the matter with you in a way that is fair to all concerned.

12.3 If you are not satisfied with the way we have dealt with your complaint, the New Zealand Law Society has a complaints service to which you may refer the issue.
Matters may be directed to:

Lawyers Complaints Service
PO Box 5041
Wellington 6140
New Zealand

Phone: 0800 261 801
Email: complaints@lawsociety.org.nz
Website: www.lawsociety.org.nz