The Master Terms of Business (“the Terms”), sent to the client together with any engagement letter and any fee estimate, form the initial Contract between Stevenson Campbell and the client.
Unless otherwise agreed in writing, any subsequent services performed by Stevenson Campbell will be provided by Stevenson Campbell on the basis of the Terms. In such cases, references to the Contract and the Services below will be to the Terms and any orally specified services.
1 Services. Stevenson Campbell will provide the services specified in any initial engagement letter or, as subsequently agreed and set out, in any replacement or supplementary engagement letter (“the Services”). The Services may include advice and recommendations, but it is understood and agreed that all decisions in connection with the implementation of such advice and recommendations shall be the responsibility of, and made by the client. Unless implementation is specified in the engagement letter, Stevenson Campbell shall not be liable in any way in this regard. Either Stevenson Campbell or the client may request changes to the Services. Each agrees to work together to enable each party to assess the impact of any requested changes on the cost, timing or any other aspect of the Services.
2 Information. The client will provide in a candid, full and timely fashion all information and documents reasonably required to enable Stevenson Campbell to provide the Services. Unless otherwise required pursuant to the engagement, Stevenson Campbell will have no responsibility to independently verify the accuracy of such information and documents. Stevenson Campbell will not be liable for any loss or damage arising from any inaccuracy, incompleteness or other defect in any information or documents supplied by the client.
3 Workpapers. The workpapers produced by Stevenson Campbell in the course of its work in providing the Services are the property of Stevenson Campbell. Stevenson Campbell shall be entitled to retain its work papers and copies of any documents provided to it in the course of performing its Services. Work papers will also include documents or deeds relevant to your affairs although not necessarily relevant to the Services.
On providing the Services Stevenson Campbell will open a file. The file retained by Stevenson Campbell will be stored and kept for at least ten years. After that period of time the file may at Stevenson Campbell’s sole discretion be destroyed. If the client sends to Stevenson Campbell any papers which ultimately form part of that file which are to be returned to the client, please be sure to advise Stevenson Campbell accordingly at the time these are supplied.
In respect of Deeds or documents Stevenson Campbell reserves the right to retain those Deeds and documents until all monies due for costs, office services or disbursements are paid. Stevenson Campbell requires this right to retain any such Deeds and documents even if the monies are due for services unrelated to those documents. Stevenson Campbell’s position in this regard is contrary to the usual common law position which would otherwise exist.
At the end of the matter following payment of all outstanding costs, any original documents or other property which belongs to you will be returned if you so wish. Otherwise, we would anticipate that the file will be stored and kept for up to 10 years. The storage costs will be absorbed by the firm as part of its overhead expenses.
During storage, the file will be readily obtainable if required, but because storage of files is necessarily “off premises”, where retrieval is required, whether at the direct request of the client or, for example, to enable us to provide information at the request of some other party on behalf of the client, then a small retrieval charge will be levied against the client, payable in advance, each time retrieval from/return to storage takes place.
4 Health and Safety. The Health and Safety in Employment Act 1992 obliges Stevenson Campbell to take all practical steps to ensure the health and safety of its staff engaged on any assignment. Stevenson Campbell and the client will be mutually responsible to ensure the safety of Stevenson Campbell staff and to see no harm is caused to them in the client workplace. The client shall ensure that the Act is fully complied with when Stevenson Campbell personnel visit client sites. Contact with the client’s health and safety representative could involve a safety briefing at the beginning of the assignment, regarding work
hazards which Stevenson Campbell staff may be exposed to on the client site, management of the hazards, provision of any appropriate equipment, awareness of accident reporting procedures and emergency procedures.
5 Reporting. Stevenson Campbell will report to the client in accordance with the terms set out in the engagement letter.
6 Fees and Payment.
a) Either before or after the commencement of the Services, or on any change in the Services Stevenson Campbell may, at its discretion, or will, if so required by the client, provide an estimate and/or agree with the client the total fees for the Services.
b) All fees charged will be based on the New Zealand Law Society requirement that all professional fees shall be fair and reasonable having regard to the interests of both the client and Stevenson Campbell.
c) The client acknowledges that in determining what constitutes fair and reasonable fees having regard to the interests of both the client and Stevenson Campbell, a number of factors will be taken into account including not only the amount of time devoted by partners and staff to the Services, but any urgency involved, the amount or value of the money or property involved, the degree of complexity and resulting skill required, the results achieved and any other criteria that are relevant.
d) The client will pay all out of pocket expenses reasonably incurred by Stevenson Campbell in performing the Services.
e) In the case of most property, loan, commercial or other transactions where there is a specific settlement date, all fees and expenses shall be paid not later than the settlement date. The client irrevocably authorises the deduction of all fees and expenses from the proceeds of any loan advance or sale proceeds or other monies which may be received or held to the client’s credit within Stevenson Campbell’s Trust Account.
f) Regardless of the nature or type of Services being provided to the client, Stevenson Campbell reserves the right to render interim accounts in respect of which, the provisions of paragraph 6(g) shall apply.
g) In all other cases, fees and expenses will be billed monthly unless otherwise agreed, and will be payable within seven days of receipt of the invoice.
h) In default of payment when required, the client undertakes to pay late payment fees of 2% per month on any amount outstanding and to indemnify Stevenson Campbell and pay all costs and expenses if legal action is necessary to recover from you any overdue amount. Stevenson Campbell may at its discretion require funds to be paid on account before it incurs out of pocket expenses.
i) Failure to pay fees on time may, at Stevenson Campbell’s discretion, lead to suspension of the Services (including Stevenson Campbell’s right to refuse to settle a property, loan, commercial or other transaction), or termination of the engagement. All reasonable fees up to suspension or termination shall be and remain payable, notwithstanding the suspension or termination.
j) The client hereby irrevocably grants to Stevenson Campbell a lien, over any moneys which may at any time be held on the client’s behalf in Stevenson Campbell’s Trust Account, in respect of any moneys which may at any time be owed howsoever past, present or future by the client to Stevenson Campbell.
7 Terms and Termination. The Contract will continue until all the Services have been provided unless sooner terminated by agreement as set out below. Either party may terminate the Contract by written notice or if the other party fails to remedy a material breach of the Contract. Termination will not affect the client’s obligations to pay Stevenson Campbell’s fees for all Services performed up to termination. Any of the terms and conditions of the engagement letter or the Terms that are intended to apply after completion of the Services will continue to apply following termination.
8 Confidentiality. Stevenson Campbell will not disclose to third parties any confidential information relating to the Services unless either authorised by the client or compelled by law, or as is necessary to provide the Services.
9 Indemnity. In the event Stevenson Campbell becomes involved in any claim (including actual or threatened litigation of whatever form) in relation to the Services, Stevenson Campbell will immediately notify the client. The client agrees, to the extent permitted by law, to indemnify Stevenson Campbell, its Partners and employees in all respects including its reasonable costs and expenses involved in defending any such actual or threatened litigation. Where legal counsel is retained for these purposes, those costs, will be met by the client. Stevenson Campbell will use its best endeavours to agree the quantum of any such costs recognising the need to respond to such litigation on a prompt and reasonable basis. The client agrees to meet the costs of Stevenson Campbell for reasonable time incurred by its Partners and staff and any other reasonable costs and expenses in relation to any inquiry or proceeding initiated by any person.
10 Restrictions. Unless Stevenson Campbell has agreed in writing, no advice or information provided to the client is to be made available, directly or indirectly to any third party, or shall be used or relied upon by any third party. Stevenson Campbell will have no liability to any such third party. The client indemnifies Stevenson Campbell against any third party claim arising from its release of any such Stevenson Campbell advice or information.
11 E-mail. While we use standard virus checking software, we accept no responsibility for viruses or anything similar in any emails or any attachments which come from Stevenson Campbell. We also do not accept any responsibility for any changes to, or interception of, any email or any attachment after it leaves our information systems.
12 No Assignment or Benefit. The client may not assign the benefit of the Services to any third party without the written consent of Stevenson Campbell. For the avoidance of doubt the sole beneficiary of the Services under this Contract is the client. No other party is intended to take a benefit under the Contracts (Privity) Act 1982.
13 Guarantee. Instructions from time to time may be taken from companies or other corporate bodies and/or family trusts and/or third party individuals at the client’s request. In such instances these Terms will apply to the receipt of such instructions and the client unconditionally guarantees to Stevenson Campbell the performance of all obligations expressed or implied in these terms.
14 Investment. From time to time Stevenson Campbell may receive, on behalf of the client various funds, and unless otherwise instructed, or if in the sole discretion of Stevenson Campbell the likely investment return would not warrant it, funds will be deposited to the client’s credit in an interest bearing deposit account within Stevenson Campbell’s Trust Account. All interest accrued less usual Resident Withholding Tax and Accounts Department handling commission, at a rate of 7% of gross interest accrued on $75, which ever is the greater, will be for the credit of the client. Stevenson Campbell will at such time as all funds are released to the client provide a statement identifying the sum of all interest received and any deductions made.
15 Entire Agreement. The Contract described in these Terms, subject to any qualification, conditions, assumptions and reservations set out in any report, forms the entire agreement between Stevenson Campbell and the client. No previous discussions, proposals, correspondence, understandings or other communications, whether written or oral, shall have contractual effect subsequent to the engagement letter. Only written variations signed on behalf of Stevenson Campbell shall have effect to vary the Contract.
16 Governing Law. Stevenson Campbell and the client agree that the Contract and their relationship will be governed by the applicable laws of New Zealand and submit to the exclusive jurisdiction of the New Zealand Courts.