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James Burn & Associates Limited – Terms & Conditions of Trade
1. Definitions1.1 “Accountant” shall mean James Burn & Associates Limited, its successors and assigns or any person acting on behalf of and with the authority of James Burn & Associates Limited.
1.2 “Client” means the person/s requesting the Accountant to provide the Services (including but not limited to, instructions or queries via telephone calls and/or emails) as specified in any invoice, document or order, and if there is more than one person requesting the Services is a reference to each person jointly and severally.
1.3 “Services” means all Services provided by the Accountant to the Client at the Client’s request from time to time.
1.4 “Documentation” means any goods, documents, reports, drawings or materials supplied, consumed, created or deposited incidentally by the Accountant in the course of it conducting, or providing to the Client, any Services.
1.5 “Price” means the price payable for the Services as agreed between the Accountant and the Client in accordance with clause 4 of this contract.
2.1 The Client is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Client places an order for, or accepts Services provided by the Accountant.
2.2 These terms and conditions are to be read in conjunction with the Accountant’s Letter of Engagement and may only be amended with the Accountant’s consent in writing. If there are any inconsistencies between the two documents then the terms and conditions contained in this document shall prevail.
2.3 On completion of the Services the Accountant will retain any documents for a period of seven (7) years after which the documents will be destroyed unless otherwise requested by the Client.
2.4 The Client acknowledges and accepts that the Accountant reserves the right to charge accordingly for time involved in accordance with the Accountant’s terms and conditions for all requests of verbal, email and/or written advice.
2.5 Unless otherwise instructed, the Client accepts that the Accountant may alternatively communicate with the Client via electronically (email). The Client accepts this form of communication maybe subject to inherent hazards in electronic distribution and as such the Accountant cannot warrant against delays or errors in transmitting data between the Client and the Accountant, and you agree that to the maximum extent permitted by law, the Accountant will not be liable for any losses which the Client suffers as a result of internet interruptions beyond the Accountant’s control that may cause delays or errors in transmitting instructions and/or confirmations.
3. Change in Control
3.1 The Client shall give the Accountant not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client and/or any other change in the Client’s details (including but not limited to, changes in the Client’s name, address, contact phone or fax number/s, or business practice). The Client shall be liable for any loss incurred by the Accountant as a result of the Client’s failure to comply with this clause.
4. Price and Payment
4.1 The Price shall be as indicated on invoices provided by the Accountant to the Client in respect of the Services supplied.
4.2 Time for payment for the Services shall be of the essence and will be stated on the invoice, quotation, or any other order forms. If no time is stated then payment will be due seven (7) days following the date of the invoice.
4.3 Unless otherwise stated the Price does not include GST. In addition to the Price the Client must pay to the Accountant an amount equal to any GST the Accountant must pay for any supply by the Accountant under this or any other agreement for the provision of the Services. The Client must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Client pays the Price. In addition the Client must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.
5. Provision of Services
5.1 The Accountant shall exercise reasonable skill, care and diligence in the performance of the Services in accordance with the ethics of the Accounting profession.
5.2 Any time specified by the Accountant for provision of the Services is an estimate only and the Accountant will not be liable for any loss or damage incurred by the Client as a result of any delay. However both parties agree that they shall make every endeavour to enable the Services to be provided at the time and place as was arranged between both parties. In the event that the Accountant is unable to provide the Services as agreed solely due to any action or inaction of the Client then the Accountant shall be entitled to charge a reasonable fee for re-providing the Services at a later time and date.
6.1 Irrespective of whether the Accountant retains ownership of any Documentation all risk for such items shall pass to the Client as soon as such items are delivered to the Client and shall remain with the Client until such time as the Accountant may repossess the Documentation.
6.2 The Accountant shall not be held liable for any loss, corruption, or deletion of files or data (including, but not limited to the unintended introduction of viruses) resulting from the Services provided by the Accountant. It is the sole responsibility of the Client to back-up any data which they believe to be important, valuable, or irreplaceable prior to the Accountant providing the Services.
7.1 The Accountant and the Client agree that where it is intended that the ownership of Documentation is to pass to the Client that such ownership shall not pass until:
(a) the Client has paid the Accountant all amounts owing for the Services; and
(b) the Client has met all other obligations due by the Client to the Accountant in respect of all contracts between the Accountant and the Client.
7.2 Receipt by the Accountant of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised and until then the Accountant’s ownership or rights in respect of the Documentation shall continue.
7.3 It is further agreed that:
(a) until such time as payment for the Services has been received in full the Accountant may give notice in writing to the Client to return to the Accountant any documentation provided to the Client as part of the Accountant’s Services. Upon such notice being given the rights of the Client to obtain ownership or any other interest in the Services shall cease; and
(b) if the Client fails to return documentation to the Accountant when requested then the Accountant or the Accountant’s agent may enter upon and into land and premises owned, occupied or used by the Client, or any premises where the documentation is situated as the invitee of the Client and take possession of the documentation, and the Accountant will not be liable for any reasonable loss or damage suffered as a result of any action by the Accountant under this clause.
8. Default and Consequences Of Default
8.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and one half percent (2.5%) per calendar month (and at the Accountant’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
8.2 If the Client owes the Accountant any money the Client shall indemnify the Accountant from and against all costs and disbursements incurred by the Accountant in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, the Accountant’s collection agency costs, and bank dishonour fees).
9.1 The Accountant may cancel any contract to which these terms and conditions apply or cancel provision of the Services at any time before the Services are completed by giving written notice to the Client. On giving such notice the Accountant shall repay to the Client any sums paid in respect of the Price, less any amounts owed by the Client to the Account for Services already provided. The Accountant shall not be liable for any loss or damage whatever arising from such cancellation.
9.2 In the event that the Client cancels provision of the Services, the Client shall be liable for any loss incurred by the Accountant (including, but not limited to, any loss of profits) up to the time of cancellation.
10. Privacy Act 1993
10.1 The Client authorises the Accountant or the Accountant’s agent to:
(a) access, collect, retain and use any information about the Client;
i) (including any overdue fines balance information held by the Ministry of Justice) for the purpose of assessing the Client’s creditworthiness; or
ii) for the purpose of marketing products and services to the Client.
(b) disclose information about the Client, whether collected by the Accountant from the Client directly or obtained by the Accountant from any other source, to any other credit provider or any credit reporting agency for the purposes of providing or obtaining a credit reference, debt collection or notifying a default by the Client.
10.2 Where the Client is an individual the authorities under clause 10.1 are authorities or consents for the purposes of the Privacy Act 1993.
10.3 The Client shall have the right to request the Accountant for a copy of the information about the Client retained by the Accountant and the right to request the Accountant to correct any incorrect information about the Client held by the Accountant.
11. Personal Property Securities Act 1999 (“PPSA”)
11.1 Upon assenting to these terms and conditions in writing the Client acknowledges and agrees that:
(a) these terms and conditions constitute a security agreement for the purposes of the PPSA; and
(b) a security interest is taken in all Services previously supplied by the Accountant to the Client (if any) and all Services that will be supplied in the future by the Accountant to the Client.
11.2 The Client undertakes to:
(a) sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which the Accountant may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register;
(b) indemnify, and upon demand reimburse, the Accountant for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register or releasing any Services charged thereby;
(c) not register a financing change statement or a change demand without the prior written consent of the Accountant; and
(d) immediately advise the Accountant of any material change in its business practices of selling the Services which would result in a change in the nature of proceeds derived from such sales.
11.3 The Accountant and the Client agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms and conditions.
11.4 The Client waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA.
11.5 Unless otherwise agreed to in writing by the Accountant, the Client waives its right to receive a verification statement in accordance with section 148 of the PPSA.
11.6 The Client shall unconditionally ratify any actions taken by the Accountant under clauses 11.1 to 11.5.
12. Security and Charge
12.1 In consideration of the Accountant agreeing to provide Services, the Client charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Client either now or in the future, to secure the performance by the Client of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
12.2 The Client indemnifies the Accountant from and against all the Accountant’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising the Accountant’s rights under this clause.
12.3 The Client irrevocably appoints the Accountant and each director of the Accountant as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 12.1 including, but not limited to, signing any document on the Client’s behalf.
13.1 Where the Client has left any of the Client’s documentation with the Accountant for the Accountant to provide any Services in relation to that documentation and the Accountant has not received or been tendered the whole of the Price, or the payment has been dishonoured, the Accountant shall have:
(a) a lien on the documentation; and
(b) the right to retain the documentation whilst the Accountant is in possession of the documentation until such time as payment has been made in full; and
(c) the lien of the Accountant shall continue despite the commencement of proceedings, or judgment for the Price having been obtained; and
(d) the Accountant shall be under no obligation to release the documentation to the Client if the Client is in default of payment except as may be required by any law or statute.
14. Liability Limitations
14.1 The Accountant shall be under no liability whatsoever to the Client for any indirect loss, consequential loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by the Accountant of these terms and conditions; alternatively the Accountant’s liability shall be limited to damages which under no circumstances shall exceed the Accountant’s Professional Indemnity Insurance in place.
14.2 The Client agrees to indemnify the Accountant, its partners, associates, employees, contractors and any other person who may be sought to be made liable in excess of the limit of liability described in clause 14.1 in respect off any activity arising from or connected with these terms in respect of any claim of whatever kind, including negligence, that may be made by any person and any costs and expenses that may be incurred by the Accountant.
15.1 If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
15.2 These terms and conditions and any contract to which they apply shall be governed by the laws of New Zealand and are subject to the jurisdiction of the Gisborne Courts of New Zealand.
15.3 The Client shall not be entitled to set off against or deduct from the Price any sums owed or claimed to be owed to the Client by the Accountant, nor to withhold payment of any invoice because part of that invoice is in dispute.
15.4 The Accountant may license or sub-contract all or any part of its rights and obligations without the Client’s consent.
15.5 The Client agrees that the Accountant may amend these terms and conditions at any time. If the Accountant makes a change to these terms and conditions, then that change will take effect from the date on which the Accountant notifies the Client of such change. The Client will be taken to have accepted such changes if the Client makes a further request for the Accountant to provide Services to the Client.
15.6 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, drought, storm or other event beyond the reasonable control of either party.
15.7 The failure by the Accountant to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect the Accountant’s right to subsequently enforce that provision.
15.8 The Client warrants that it has the power to enter into this agreement and has obtained all necessary authorisations to allow it to do so, it is not insolvent and that this agreement creates binding and valid legal obligations on it.
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