Terms of engagement.
1 General
1.1 These Standard Terms of Engagement (Terms) apply to any current engagement and also to any future engagement, whether or not we send you another copy of them. You do not need to sign any formal documentation to indicate your acceptance. It will be assumed by your continuing engagement with us.
1.2 We are entitled to change these Terms from time to time. The amended Terms will be made available on our website. Unless expressly agreed with you in writing, our updated Terms will apply from the date we publish the updated Terms on our website (with respect to any work performed after the date of publication). These Terms will also be deemed to be modified to the extent necessary to comply with applicable legislation and the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 (Rules) in force from time to time.
1.3 Our relationship with you is governed by New Zealand law and New Zealand courts have exclusive jurisdiction.
1.4 Any provision of these Terms which is illegal, void or unenforceable is only ineffective to the extent of that illegality, voidness or unenforceability. The remaining provisions remain valid.
2 Services
2.1 The services we are to provide for you (the Services) will normally be outlined in our letter of engagement (in email or PDF format) 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.
2.3 We are only qualified to advise on New Zealand law. If we assist you in respect of matters governed by foreign law, we do so on the basis that we do not accept any responsibility in relation to your legal position under that foreign law.
3 Communications
3.1 We will obtain from you contact details, including email addresses, postal addresses and telephone numbers. 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.
3.2 Unless otherwise agreed, we may communicate with you and with others by electronic means. These communications may be subject to interference, interception or contain viruses or other defects (Corruption). We cannot guarantee that these communications will be free of Corruption, not be lost or affected for some reason beyond our reasonable control, and we will not be liable for any damage or loss in connection with, or as a consequence caused thereby.
3.3 We shall not be liable to you for any delay or being prevented from performing the Services which are caused beyond our reasonable control. We will inform you of any material and unexpected delays, significant changes or complications in the work being undertaken. We will report to you periodically on the progress of any engagement and you may request a progress report at any time.
3.4 You agree that we may provide you from time to time with other information that may be relevant to you, such as newsletters and information bulletins. At any time you may request that this not be sent to you.
4 Financial
4.1 Fees: The basis upon which we will charge our fees will normally be set out in our engagement letter/email, and in the absence of any specific engagement letter/email (because, for example, you have requested us to undertake any urgent one-off instructions), we will charge for our Services on a standard hourly attendance basis on our then current hourly rates. More particularly:
a If the engagement letter/email specifies a fixed fee, we will charge this fee for the agreed scope of the Services. Work which falls outside that scope may be charged on an hourly rate basis. We will, if requested, give you an estimate of the likely amount of the further costs or a fixed fee for those additional services outside of the agreed scope of work. If you disengage us during a fixed-fee engagement, we reserve our right to charge you a fee that is pro rated to the amount of work completed in relation to that engagement or calculated based on an hourly rate basis up to that point of disengagement (at our discretion).
b Where our fees are calculated on an hourly basis, the hourly rates of the people we expect to undertake the work will be set out in our engagement letter/email or be set with reference to our standard hourly rates then in use. Any differences in those rates reflect the different levels of experience and specialisation of our professional staff. Time spent may be recorded in six-minute units.
c Hourly fees may be adjusted (upwards or downwards) from time to time 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 Rules.
4.2 Disbursements and Third Party Expenses: 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 such items such as anti-money laundering verification charges, search fees, court filing fees, registration fees and 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 (or in advance when we know we will be incurring them on your behalf).
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 will send interim invoices to you, usually monthly, and 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: Unless otherwise agreed, invoices are payable within fourteen (14) days of the date of the invoice, unless alternative arrangements have been made with us.
a If you have difficulty in paying any of our accounts, please contact us promptly so that we may discuss payment arrangements.
b If your account is overdue we may:
i require interest to be paid on any amount which is more than 14 days overdue, calculated at the rate of 12% for the period that the invoice is outstanding;
ii stop work on any matters in respect of which we are providing Services to you; and/or
iii 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.
c If there is more than one person comprising the client, each person is jointly and severally liable for payment in due time of all our accounts and other charges, such as those under clause 4 of these Terms.
4.6 Estimates: You may request an estimate of our fees 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 do not operate a trust account.
5 Confidentiality and Personal Information
5.1 Confidence: 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:
a to the extent necessary or desirable to enable us to carry out your instructions; or
b as expressly or impliedly agreed by you; or
c as necessary to protect our interests in respect of any complaint or dispute; or
d 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 the Services.
5.3 Personal information and Privacy: 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 in accordance with our Privacy Policy. 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.
5.6 The information we collect and hold about you will be kept at our offices 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 Joshua Woo (josh.woo@jwlegal.co.nz).
5.7 Verification of identity: The Anti-Money Laundering and Countering Financing of Terrorism Act 2009 may require us to collect from you and retain the 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 and proofs of address). We may retain copies of these documents and other information required under the relevant law. 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.
5.8 Compliance: Please refer to section 7 ‘Compliance’ regarding information that may be required to be provided to third parties.
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:
a 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).
b At any time, we may dispose of documents which are duplicates, or which are trivial (such as emails which do not contain substantive information), or documents which belong to us.
c 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 2020 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 seven (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 may, at our option, return documents (either in hard or electronic form) to you rather than retain them. If we choose to do this, we will do so at our expense.
6.6 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 Compliance
7.1 We are obliged to comply with all laws applicable to us in all jurisdictions, including (but not limited to):
a Anti-money laundering (AML) and countering financing of terrorism (CFT) laws; and
b Laws relating to tax and client reporting and withholdings.
We are not liable for anything done, or not done, in order to comply with the laws stated in this clause 7.1.
7.2 We may be required to undertake customer due diligence on you, persons acting on your behalf and other relevant persons such as beneficial owners and controlling persons. We may not be able to begin acting or to continue acting, for you until that is completed.
7.3 To ensure our compliance and yours, we may be required to provide information about you, persons acting on your behalf or other relevant persons to third parties (such as government agencies). There may be circumstances where we are not able to tell you or such persons if we do provide information.
7.4 Please ensure that you and/or any of the persons described previously are aware of and consent to this. It is important to ensure that all information provided to us is accurate. If the information required is not provided, or considered by us to be potentially inaccurate, misleading, or in contravention of any law, we may terminate or refuse to enter into an engagement or refuse to provide any further Services.
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 Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 (Rules). This may result in a situation arising where we have a conflict of interest.
8.2 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.
8.3 In particular, if we are acting for more than one person or entity on your matters, you agree that we can accept instructions from any of you unless otherwise agreed in writing. We may terminate our Services where, in our sole opinion, there is or may be a conflict of interest between any of you, or if we would otherwise be obliged to act in a manner contrary to the interests of one of you. Under these Terms, you each agree to immediately notify us if there is any dispute or a conflict of interest which arises between you while we act for you. Your liability to us under these Terms is joint and several. You may request us to apportion any bill between you, but this will not affect your joint and several liability to us.
8.4 If we cease to act for you or have not been instructed by you on a matter, we may act for other clients whose interests are adverse to your own, provided either we do not hold confidential information belonging to you that is relevant to the matter, or we have taken steps to maintain the confidentiality of information which is relevant to you.
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. When our instructions on a matter are completed, our representation of you will end. We are not obliged to notify you of any subsequent change of law or to provide any further services related to that matter.
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. While we will exercise reasonable care and skill in all matters undertaken by us, we do not guarantee any particular outcome for any particular engagement. Our professional fees, and your obligation to pay for them in full, are not dependent or contingent upon the business or commercial outcome of your matter. We will not be providing, obtaining or reviewing, on your behalf, any non-legal advice or advice that falls outside of our expressly communicated areas of expertise (including, but not limited to, business, commercial, financial, investment, technical, insurance, accounting, taxation, broking, actuarial, environmental, or information technology) or technical matters (such as engineering specifications or financial calculations), except where we expressly agree to do so in writing. Where documents that we draft, or on which we comment, include provisions covering such matters, you should review those provisions, or arrange for other suitably qualified advisers to do so, to satisfy yourself that you meet commercial objectives. 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.
10 Limitations on our Obligations and 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:
a if an amount is available to be paid out under our relevant insurance policies in respect of our liability to you, that amount, up to a maximum of NZ$1,000,000 including interest and costs; or
b in any other case, an amount equal to three times our related fees (excluding administrative charges, disbursements, and taxes), up to a maximum of $500,000 including interest and costs.
10.2 The firm holds Professional Indemnity Insurance with NZI to the value of $1,000,000 in aggregate. The excess payable in respect of the claims is $5,000 per claim.
10.3 In no circumstances will JW Legal be liable for any indirect or consequential loss or any loss of revenue, profits, goodwill, business, savings, or opportunity.
10.4 Any claim you have against us must be filed within two (2) years after the date of the act or omission on which the claim is based. Otherwise, the claim cannot be filed and we will have no liability for that act or omission or its consequences (to the extent permitted by law). In these Terms, “claim” and “the date of the act or omission on which the claim is based” have the same meanings as in the Limitation Act 2010. This time limit overrides the time periods under that Act and applies regardless of when any fact relevant to the claim was first discovered or able to be discovered.
10.5 If and to the extent you acquire our services in trade, for the purposes of section 5D of the Fair Trading Act 1986 and section 43 of the Consumer Guarantees Act 1993, you and we agree to the extent permitted by law that you and we are all in trade, that sections 9, 12A, 13 and 14(1) of the Fair Trading Act 1986 and the provisions of the Consumer Guarantees Act 1993 do not apply in relation to these Terms or as between you and us, and that it is fair and reasonable to exclude their application. Nothing in these Terms modifies or negates your rights or remedies in the Fair Trading Act 1986 or Consumer Guarantees Act 1993 if you have not acquired our services in trade.
11 Termination
11.1 You may terminate our retainer at any time.
11.2 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.
11.3 If our retainer is terminated you must pay us all fees, disbursements and expenses incurred up to the date of termination.
12 Feedback and 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 the Director responsible for your business.
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 with the Director responsible for your business. 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. You can call the 0800 number for guidance, lodge a concern or make a formal complaint. Matters may be directed to:
Lawyers Complaints Service
PO Box 5041
Wellington 6140
New Zealand
Phone: 0800 261 801
To lodge a concern:
www.lawsociety.org.nz/for-the-community/lawyers-complaints-service/concerns-form
To make a formal complaint:
www.lawsociety.org.nz/for-the-community/lawyers-complaints-service/how-to-make-a-complaint
Email: complaints@lawsociety.org.nz