Terms of Business
Master terms of business
The Master Terms of Business set out below (“the Terms”) together with any engagement letter and any fee estimate sent to the client, form the Contract between AlexanderDorrington Limited (“AlexanderDorrington”) and the client.
Unless otherwise agreed in writing, any services performed by AlexanderDorrington will be provided by AlexanderDorrington on the basis of the Terms.
AlexanderDorrington will provide the services specified in any initial engagement letter or, as otherwise agreed (“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, AlexanderDorrington shall not be liable in any way in this regard. Either AlexanderDorrington 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.
The client will provide in a candid, full and timely fashion all information and documents reasonably required to enable AlexanderDorrington to provide the Services. Unless otherwise expressly required by the client, AlexanderDorrington will have no responsibility to independently verify the accuracy of such information and documents. AlexanderDorrington 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.
To comply with the Anti-Money Laundering and Countering Financing of Terrorism 2009 Act (AML/CFT) and the United States Foreign Account Tax Compliance Act (FATCA), AlexanderDorrington will undertake due diligence on the client. AlexanderDorrington will advise the client what information and documents are required. Information will be required that relates to the client and any other relevant person in relation to the client entity (eg any beneficial owner). AlexanderDorrington may terminate or refuse to enter into a business relationship. AlexanderDorrington or the bank or other entity may delay, block or refuse to process a transaction. The comply with the AML/CFT AlexanderDorrington may report any suspicious or unusual transaction to the Financial Intelligence Unit. To comply with FATCA AlexanderDorrington may need to provide information to its bank relating to any client holding funds in our trust account that is a US citizen or US tax resident.
The workpapers produced by AlexanderDorrington in the course of its work in providing the Services are the property of AlexanderDorrington. AlexanderDorrington shall be entitled to retain its workpapers and copies of any documents provided to it in the course of performing its Services. Workpapers will also include documents or deeds relevant to your affairs although not necessarily relevant to the Services. AlexanderDorrington will open a file upon receiving instructions. AlexanderDorrington will only retain an electronic record of your file and other documentation pertaining to the transaction in accordance with the New Zealand Law Society guidelines for the retention of records. Original wills, powers of attorney, trust deeds and property relationship agreements will however be retained in our deeds system. All other deeds will be kept electronically with the originals being returned to the client. If the client sends to AlexanderDorrington any papers which ultimately form part of that file which are to be returned to the client, the client must advise AlexanderDorrington accordingly at the time these are supplied. You have the right to request copies of your workpapers in a commonly used format.
AlexanderDorrington has a lien under common law to retain all deeds, documents and files in respect of what it is owed fees, office services charges or disbursements until such monies are paid. Nothing in these terms is to be taken as waiving or substituting this lien.
5. Health and Safety.
In accordance with the Health and Safety in Employment Act 1992 AlexanderDorrington will take all practical steps to ensure the health and safety of its staff engaged on any assignment. The client shall ensure that the Act is fully complied with when AlexanderDorrington personnel visit client sites.
AlexanderDorrington will report to the client in accordance with the terms set out in the engagement letter.
7. Fees and Payment.
(a) Either before or after the commencement of the Services, or on any change in the Services AlexanderDorrington may, at its discretion, or will, if so required by the client, provide a fee 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 AlexanderDorrington.
(c) The client acknowledges that in determining what constitutes fair and reasonable fees having regard to the interests of both the client and AlexanderDorrington, 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 AlexanderDorrington 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 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 AlexanderDorrington’s Trust Account.
(f) Regardless of the nature or type of Services being provided to the client, AlexanderDorrington reserves the right to render interim accounts in respect of which, the provisions of paragraph 7(i) and (j) shall apply.
(g) In all other cases, unless otherwise agreed, fees and expenses will be billed monthly unless otherwise agreed, and will be payable 14 days following the billing date.
(h) We may ask you for funds in advance to be held in trust and applied by us in payment of fees and expenses. You authorise us to deduct from any funds held on your behalf for this purpose any fees, expenses or disbursements for which we have provided an invoice. Funds pre-paid by you for a pre-purchase report will be retained on this basis.
(i) 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 AlexanderDorrington and pay all costs and expenses if a debt collection agency is appointed or if legal action is necessary to recover from the client any overdue amount. AlexanderDorrington may at its discretion require funds to be paid on account before it incurs out of pocket expenses.
(j) Failure to pay fees on time may, at AlexanderDorrington’s discretion, lead to suspension of the Services (including AlexanderDorrington’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.
(k) The fixed fee for a residential pre-purchase report is based on what we would expect to be a typical investigation of the relevant documents. We anticipate some titles and accompanying documents will be more complicated than others and our fixed price fee has been assessed with this in mind. However AlexanderDorrington does reserve the right to reassess the fee if the title or accompanying documentation is significantly more complex than normal. In such event we will contact you before undertaking any work and agree a fee. If a fee cannot be agreed we will refund any payment made.
8. Terms and Termination.
The Contract will continue until all the Services have been provided unless sooner terminated by agreement. You may terminate the contract at any time. We may terminate on the basis set out in the Lawyers & Conveyancers Act (Lawyers Conduct and Client Care) 2008 Termination will not affect the client’s obligations to pay AlexanderDorrington’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.
AlexanderDorrington 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.
In the event AlexanderDorrington becomes involved in any claim (including actual or threatened litigation of whatever form) in relation to the Services, AlexanderDorrington will immediately notify the client. The client agrees, to the extent permitted by law, to indemnify AlexanderDorrington, 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. AlexanderDorrington 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 AlexanderDorrington 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.
AlexanderDorrington claims copyright in all precedent documentation provided to the Client in the course of the provision of the Services. The Client indemnifies AlexanderDorrington in relation to any loss suffered by AlexanderDorrington following any unauthorised use of precedent material.
Unless AlexanderDorrington 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. AlexanderDorrington will have no liability to any such third party. The client indemnifies AlexanderDorrington against any third party claim arising from its release of any such AlexanderDorrington advice or information.
While AlexanderDorrington uses standard virus checking software, AlexanderDorrington accepts no responsibility for viruses or anything similar in any emails or any attachments which come from AlexanderDorrington. AlexanderDorrington also do not accept any responsibility for any changes to, or interception of, any email or any attachment after it leaves AlexanderDorrington’s information systems.
14. No Assignment or Benefit.
The client may not assign the benefit of the Services to any third party without the written consent of AlexanderDorrington. 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.
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 AlexanderDorrington the performance of all obligations expressed or implied in these terms.
From time to time AlexanderDorrington may receive on behalf of the client various funds and unless otherwise instructed, or the quantum of the funds retained or likely interest earned is so minimal as to not warrant investment, all funds will be deposited to the client’s credit in an interest bearing deposit account within AlexanderDorrington’s Trust Account. In order for funds to be deposited we will need you to comply with any bank requirements, which may include completion of a ‘FATCA’ form. The bank will deduct withholding tax from any interest it pays. This is paid to the Inland Revenue Department. If you provide us with your IRD number we can instruct to have withholding tax deducted at the rate applicable to your level of income. We will charge commission at the rate of 5% on the gross interest collected on your behalf. All interest accrued less usual withholding tax and commission will be for the credit of the client. AlexanderDorrington 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.
17. 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 on request.
Limitation of Liability. To the extent permitted by law, our aggregate liability to you (whether in contract, equity, tort, statute, or otherwise) arising out of your engagement of us on a matter (or any series of related matters) is limited to the greater of:
- The amount available to be paid out under any relevant insurance held by us, up to a maximum of NZ$7,000,000; or
- Five times the amount of our applicable fee (excluding our office services charge, disbursements and GST).
We maintain a procedure for handling any complaints by clients, designed to ensure that a complaint is dealt with promptly and fairly. If you have a complaint about our services or charges, you may refer your complaint to the person in our firm who has overall responsibility for your work. If you do not wish to refer your complaint to that person, or you are not satisfied with the person’s response to your complaint, you may refer your complaint to any other director of AlexanderDorrington. The contact details for each of the directors are as follows: Jourdan Griffin, email@example.com Telephone: 09 375 2792, Denise Marsden, firstname.lastname@example.org, Telephone: 09 375 2789, P O Box 297, Shortland Street, Auckland. The Law Society also maintains a complaints service and you are able to make a complaint to that service. To do so you should contact the New Zealand Law Society, P O Box 5041, Lambton Quay, Wellington 6145.
19. 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 AlexanderDorrington 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. These 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.
20. Governing Law.
AlexanderDorrington 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.
21. Storage of Information.
When you instruct us to act on your behalf you consent to the personal information you provide to us (eg name, address, DOB, identification papers) being stored by us.
AlexanderDorrington will retain an electronic record of your file, not a physical file. We will retain the file in accordance with the New Zealand Law Society guidelines for the retention of records. If for some reason a physical file is maintained during the life of the file, it will be converted into electronic form when the matter is completed. You authorise us (without further reference to you) to destroy all physical files in this matter (other than any documents that we hold in safe custody for you) immediately after our engagement ends, or once the matter is completed.
AlexanderDorrington will store the electronic file for ten (10) years after our engagement ends or the matter is completed.
You have the right to request that personal information be erased in certain circumstances, where the information is no longer necessary in relation to the purpose for which it was collected or otherwise processed and there is no other legal ground for us to hold the information.
AlexanderDorrington will take all steps reasonable, in accordance with good industry practice, to ensure that your data is treated securely and in accordance with this clause. While we use reasonable commercial endeavours to ensure the security of your data, we do not warrant that all unauthorised access will be prevented.
AlexanderDorrington’s IT network is held in the cloud at a NZ datacentre, managed by Commarc (Commarc’s address is 12 O’Connell Street, Auckland and 118 Wrights Road, Christchurch). All data is held in a NZ datacentre with backups in another NZ datacentre. Where we use NomosOne (for the management of commercial properties) data is stored in Australia. Where we outsource AML CDD to First AML, they store their data in Australia.
22. Conflict of Interest.
We have procedures in place to identify and respond to 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 Law Society’s Rules of Conduct and Client Care for Lawyers.
23. Our Duty of Care.
Our duty of care is to you and not to any other person. Before any other person may rely on our advice we must expressly agree to this.
24. Trust Account.
We maintain a trust account for all funds that we receive from clients (except money received for payment of our invoices). If we are holding significant funds on your behalf we will ask if you would like us to lodge these funds on interest bearing deposit (IBD) with the bank. To do this the bank requires you to complete a form relating to FATCA which advises what countries you are a tax resident of. We charge an admin fee of 5% on the total interest earned on these funds held on IBD.
25. Anti-Money Laundering Obligations.
AlexanderDorrington is required by law to request information from clients relating to their identity. By supplying us with this personal information you consent to this information being passed to and checked with the document issuer, official record holder, a credit bureau, and authorised third parties for the purpose of verifying your identity and address. We may also need to check your information against various watchlists in relation to politically exposed persons.
Please note that we are obliged by law to file reports with the Financial Intelligence Unit of the NZ Police when we receive or send money internationally and when we are faced with suspicious or unusual activity, and to do so without advising you.