Terms of Engagement | Foundation Digital V-2021/8

1. Introduction

1.1 These terms apply to all services we provide. You agree with them by instructing us or by accepting our services. They continue to apply to all future services. We can change them at any time without notice. Those changes then apply the next time you instruct us or accept our services.

1.2 These terms are between you – the party named in our letter of engagement, and Foundation Digital Limited (8053098). These terms may also be relied on by our directors and employees.

1.3 These terms should be read together with any letter of engagement we provide.

1.4 These terms are superseded by our Retained Services Agreement for clients under monthly retainer contract.

2. Communications

2.1 Contact Details: We may require your contact details, including your email, address, and phone number. We may provide documents and other communications to you by email (or other electronic means). You will advise us if any of your contact details change.

2.2 Reporting: We will report periodically on the progress of any engagement and will inform you of any material and unexpected delays, significant changes, or complications in the work being undertaken. You may request a progress report at any time.

2.3 Marketing: We may provide you with newsletters and similar marketing information from time to time. We will stop providing this if requested.

3. Financial Matters

3.1 What We Charge: Our invoice will include four parts: our fee, plus any disbursements, office expenses, and GST. These are each discussed below.

3.2 Fees: Our fees are predominantly based on time spent, recorded in 15-minute units. Our hourly rate is a flat rate across all our staff. We may adjust our hourly rates up or down to reflect the complexity, urgency, and other fee factors which directly affect the services requested by the client.

3.3 Disbursements and Third-Party Expenses: Our services may require us to incur disbursements and payments to third parties on your behalf. Examples include search fees, registration fees, content supply, travel and courier charges, expert costs and additional costs associated with delivery of services. You authorise us to incur these disbursements and make these payments if reasonably necessary to provide our services.

3.4 Office Expenses: We charge 6% of our invoice on top of our fees and disbursements. This is to cover our out-of-pocket costs not included in our fee or disbursements. Examples include printing, postage, and phone calls.

3.5 GST: We charge GST on our fees.

3.6 Invoices: We will invoice you when we complete a matter, or our services are terminated. We may also elect to send kick-off and interim invoices for larger projects that are of value greater than $500.

3.7 Payment: Invoices are due within 20 days. We reserve the right to require a shorter payment period.

3.8 Our Account: We accept payment by credit/debit card or bank transfer. Our bank account details are Foundation Digital Limited: 12-3019-0038969-00

3.9 Deductions: You authorise us to deduct our invoices from funds we hold on your behalf.

3.10 Alternate Arrangements: Let us know if you expect any difficulty in paying our invoices. We can discuss alternate payment arrangements.

3.11 Third Parties: You may sometimes expect a third party to pay our invoice. Our contract, however, is with you. You will always remain responsible for payment under these terms.

3.12 Overdue Invoices: If you fail to make any payment when due, we may:

  • Charge you interest on the overdue amount at 2% per month from the due date until payment is received.
  • Stop providing any of our services.
  • 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.
  • List you with a consumer credit or collection institution of our choice.

3.13 Advance Payment: We may ask you to pre-pay amounts to us, or to provide security for our fees and expenses. We may do this at any time with reasonable notice.

3.14 Estimates: We will provide an estimate of our fees upon request. We will inform you promptly if an estimate is likely to be exceeded. Our estimates are not quotes.

4. Confidentiality and Compliance

4.1 Collection of Information: We may collect and hold information about you and your business, persons acting on your behalf, and other relevant persons, such as beneficial owners and controlling persons (your Information). Providing Information is voluntary but not doing so may limit our ability to provide our services. We may sometimes be unable to act, or to continue acting, until Information is received.

4.2 Accuracy of Information: You represent to us that all Information we hold is accurate and not misleading. You make this representation on an ongoing basis. It is therefore your responsibility to ensure that Information we hold remains up to date.

4.3 Use of Information: We may use your Information to provide our services, to contact you about issues we believe may be of interest, and to comply with all laws that apply to us. These laws include:

  • Anti-money laundering (AML) and countering financing of terrorism (CFT) laws; and
  • Laws relating to tax and client reporting and withholdings.

4.4 Confidentiality: All Information obtained from you in the course of providing our services will be kept confidential. We will not disclose it to other persons, except:

  • to the extent necessary or desirable to enable us to carry out your instructions;
  • as expressly or impliedly agreed by you;
  • as necessary to protect our interests in respect of any complaint or dispute;
  • to credit agencies to perform a credit reference or to undertake credit management or collection processes;
  • to verify your identity and other Information via AML & CFT compliance services; and to the extent required or permitted by law.

5. Documents and Records

5.1 Documents: We keep all important documents which we receive or create on your behalf as follows:

5.2 We may elect to keep documents electronically, physically, or both.

  • We may destroy any original document unless retaining it is important or a legal requirement.
  • We may dispose of trivial documents (for instance, emails not containing substantive information) and documents belonging to us at any time.
  • We may elect to destroy all documents held for a matter 7 years after it ends. This does not apply where retaining it is a legal requirement.

5.3 Privacy Act: You may request all documents you are entitled to under the Privacy Act 1993 or any other law. We will then supply copies or originals at our option. You will pay our reasonable costs for doing this.

5.4 Privacy Policy: Please also see our privacy policy at foundationdigital.co.nz/privacy-policy

5.5 Copyright: We own copyright in all documents or work we create while providing our services. However, we 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. Foundation Digital Limited maintains full ownership of all outputs until such time that the project is paid for in full and all invoices pertaining to that work has been settled.

6. Conflicts of Interest

6.1 We are obliged to protect and promote your interests to the exclusion of the interests of third parties and ourselves where there is a reasonable conflict of commercial interest.

6.2 We maintain procedures to identify and respond to conflicts of interest. We will advise you of any conflict and follow the requirements and procedures to minimise and stop such conflict. This may mean that we cannot act or must stop acting for you.

7. Duty of care

7.1 Reliance: Our duty of care is only to you. We have no responsibility or liability to any other person (for example, directors, shareholders, associated companies or family members), even if those persons are affected by our services. Those persons cannot rely on any advice or other services we provide.

7.2 Disclosure: You may disclose reports, documents, or other information we provide. This is on the basis that you first make the recipient aware that they cannot rely on the information to be provided. You undertake to comply with this on an ongoing basis.

7.3 Qualifications: Our advice is opinion only, based on the facts known to us and on our professional judgment. It is subject to change. We are not liable for errors in, or omissions from, any information provided by you or third parties. Our advice relates only to each particular matter we are engaged in. We owe you no duty or liability in respect of any related or other matters unless specifically engaged in those related or other matters. We provide no assurance of a particular outcome in relation to any service provided, contentious business, or business that becomes litigious or contentious. In such cases, the only result we undertake to achieve is the supply of competent, effective professional services, carried out with reasonable skill and care.

8. Liability

8.1 Joint & Several: Your liability is both joint and several if you comprise more than one person.

9. Termination

9.1 You may terminate the contract at any time.

9.2We may terminate our contract in any circumstance, including the existence of a conflict of interest, non-payment of fees, and failure to provide instructions.

9.3 If our contract is terminated you must pay us all fees, disbursements, and expenses incurred up to the date of termination. This will be invoiced promptly after termination and due within 7 days.

10. Feedback and Complaints

10.1 If you have any concerns or complaints about our services, please raise them with the person to whom they relate. They will respond to your concerns as soon as possible. If you are unsatisfied with the way that that person has dealt with your complaint, please raise the matter with the Director responsible for your business or with our Managing Director, Gideon Retief, at gideon@foundationdigital.co.nz.