Terms of Business for the provision of all Services to NZ Tax Desk Ltd clients

These Terms of Business apply in respect of the services you have engaged NZ Tax Desk Ltd to provide under the attached Engagement Letter (or Proposal) (“Services”).

These Terms of Business and the Engagement Letter (or Proposal) form the basis of the contract between you and NZ Tax Desk Ltd (“Contract”). This Contract forms the entire agreement between you and NZ Tax Desk Ltd relating to the Services. It replaces and supersedes any previous proposals, correspondence, understandings or other communications (written or oral).

If there are no signed & written terms of engagement in place between the you and NZ Tax Desk Ltd, then these Terms of Business are the only terms of engagement on which NZ Tax Desk Ltd agrees to supply services to the you (and related entities to you), and these terms published herein supersede all prior and/or future oral agreements between NZ Tax Desk Ltd and the Client/you. For the avoidance of doubt, in the absence of specific signed and written terms of engagement, any instruction of NZ Tax Desk Ltd to perform services by you, is accepted by NZ Tax Desk Ltd solely on the basis that such instruction occurs on the terms set out herein for all contractual dealings with NZ Tax Desk Ltd.

1. PERFORMANCE OF SERVICES

1.1 We will use reasonable commercial efforts to provide the Services in an efficient and timely manner using all reasonable skill and expertise.

1.2 The Services are not legal Services and do not constitute legal advice.

1.3 Dates in any timetable set out in the Engagement Letter (or Proposal) or otherwise advised are intended for planning and estimating purposes only and are not contractually binding.

1.4 The Services will be provided solely for your benefit and use. We accept no liability or responsibility to any third party in respect of the Services.

1.5 In the course of providing the Services, we may provide oral comments or draft reports, presentations, letters, schedules and other documents. You may not rely on such oral comments or draft documents, conclusions or advice as they may be subject to further work, revision and other factors. The final results of our work will be set out in its final report or advice.

1.6 We will not audit or independently verify the accounting records or information that you have provided in connection with the Services.

1.7 Our work will be based on documents and information provided to us or obtained by us in connection with the Services. We will not verify the accuracy and completeness of such documentation or information.

1.8 Changes in the law may take place before our advice is acted upon or may be retrospective in effect. We accept no responsibility to inform you of changes in the law or interpretations affecting advice previously given by us.

1.9 We often must rely on external information or public records to carry out your instructions. We do not verify the information or public records for accuracy or completeness. We do not accept responsibility and will not be liable for any direct or indirect damage or loss caused by errors or omissions in external information.

1.10 Some of the matters on which we may be asked to advise you may have tax implications for other entities, directors, employees or any other parties. We will not bear any liability to you or any other relevant entities, directors, employees or any other parties in respect of those tax implications, and you indemnify us from and against any loss or damage suffered or incurred by us arising out of or in connection with any action or claim by any such entities, directors, employees or other parties in this respect.

1.11 In the context of Taxation Services requested:

(a) we will advise you of your rights, obligations and options available under the Taxation Law. We also advise you of your rights or options available under Taxation Law with respect to the seeking of a private ruling and the lodging of objections and appeals against adverse positions adopted by the Revenue Authorities; and

(b) we will advise you on the application of the Taxation Law, including any possible penalties and other legal tax consequence, to allow you to make an informed decision of the course of action to be taken.

2. YOUR OBLIGATIONS

2.1 It is agreed that you will work with NZ Tax Desk Ltd and provide us with all reasonable and necessary assistance so that we can provide our Services to you.

2.2 You agree to:

(a) provide all information, documents and resources (“Materials”) that we reasonably require enabling us to provide the Services.

(b) provide all Materials on a timely basis.

(c) make decisions promptly to facilitate the performance of the Services.

(d) update any Materials where there have been any changes, including telling us if your circumstances change during the course of the Services. 

(e) ensure that Materials supplied by you or on your behalf, to the best of your knowledge and belief, are not false or misleading and do not omit material particulars.

(f) where NZ Tax Desk Ltd prepares GST, PAYE, FBT, income tax or any IRD returns on your behalf, this does not absolve you of your responsibility to meet your IRD obligations.

2.3 You acknowledge that information relating to you, or that you make available and known by our Directors or staff who are not engaged in performing the Services, shall not be deemed to have been made available to the individuals within NZ Tax Desk Ltd who are engaged in the provision of the Services.

2.4 Except as required by law, you must not provide any documentation or deliverables in respect of the Services to any third party (including without limitation, the filing of information containing or referring to any of our reports with regulators or the inclusion of our reports in any public document) without our written consent.

2.5 We advise, and you acknowledge that:

(a) you are responsible for the accuracy and completeness of the particulars and information (including the Materials) provided by you,

(b) any advice given to you is only an opinion based on the actual knowledge of your particular circumstances of individuals within NZ Tax Desk Ltd who are engaged in the provision of the Services; and

(c) a taxpayer (you) has obligations under self-assessment to keep full and proper records in order to facilitate the preparation of accurate returns

3. INCOME TAX RETURNS

3.1 All income tax returns are subject to examination by the Inland Revenue Department (“IRD”). You may be requested to produce documents, records or other evidence to substantiate items shown on the income tax return.

3.2 The preparation of your income tax return does not constitute a tax audit and cannot be relied upon as such. The onus is on you, the taxpayer, to self-assess and there are substantial penalties for incorrect returns. You should carefully review the income tax return to ensure that items shown are accurately stated so that amendments can be made for any incorrect matters.

4. IRD REVIEWS

4.1 From time to time the IRD may undertake a review of returns that have been filed, and it should be appreciated that our annual fee does not allow for that eventuality. In the event of a review that requires an input from us, we would be available to assist, and the fee for those services would be as agreed at the time.

4.2 In the event the IRD selects your enterprise for review or audit, any work required from our firm will be a separate engagement and we will charge for our time based on the hours of work involved.

5. GST RETURNS

5.1 You acknowledge that you have complied with all GST requirements and hold a valid tax invoice for every input tax credit claimed.

6. SERVICES NOT PROVIDED

6.1 NZ Tax Desk Ltd does not provide legal or investment advice. Any opinion expressed by us concerning legal or investment requirements should be confirmed by the appropriate professional.

6.2 NZ Tax Desk Ltd Services do not include audit engagements and, accordingly, no assurance will be expressed.

6.3 You accept responsibility for your own insurance and ACC cover.

7. CONFIDENTIAL INFORMATION

7.1 ‘Confidential Information’ means all financial, business, trade secrets, and other information received or acquired directly or indirectly by a party to this engagement under or in connection with the Services.

7.2 Subject to clause 7.4, each of us agrees to protect and keep confidential any confidential Information that is given to us by the other.

7.3 Notwithstanding the above, we may disclose Confidential Information to contractors in relation to the provision of the Services, and to assist in quality assurance reviews or for any other purpose in our Privacy Policy. If you object to being included in any of these reviews, you must advise us in writing at the commencement of the Contract and we will use our best endeavours to exclude this Contract and the Services from such reviews.

7.4 Either party may disclose Confidential Information:

(a) to its insurers or legal advisors, provided that such persons agree or are otherwise required to ensure that the Confidential Information remains confidential;

(b) to the extent required to do so by law; or

(c) to the extent required for the proper performance of the Services.

7.5 Provided we do not disclose any Confidential Information, we may cite the performance of the Services to clients as an indication of our experience.

8. PRIVACY OF PERSONAL INFORMATION

8.1 As a result of providing services to you we will collect personal information. You authorise us to collect, retain and use this information to provide services and develop our relationship with you.

8.2 You authorise us to disclose personal information to third parties should our engagement require us to do so. 

• In providing our services to you, we access and utilise selected services and products from third parties that facilitate our ability to provide our services. Specific examples of this include cloud-based software like Xero, our email and collaboration platforms like Microsoft and batch mail services.
• All of these services are provided to us to enable us to better service you. In utilising these services your personal information is provided into these platforms or given to the service providers solely to enable us to undertake our services to you. Your personal information is not to be used by any of these providers for any other purpose than to facilitate our work/services we provide to you.
• If you have any concern about our use of third party and cloud-based services, please speak to us.
• In addition to the above, we may use your personal information, such as your contact details, to provide you with industry information or to introduce you to additional services that we offer. We may send you written or electronic communications, or newsletters, or invitations to events etc.
• If at any time you do not wish to receive this information you can contact us and advise us and we will not send you any additional information.

8.3 You also authorise us to obtain personal information from any person, including but not limited to Government Departments, solicitors or bankers for the purposes of completing any engagement.

8.4 Personal information will be held at our offices. Under the Privacy Act 1993 you have the right to access and correct your personal information. 

8.5 You authorise us to use your information when dealing with third parties NZ Tax Desk Ltd work with regarding any matter in connection to your affairs, including the Inland Revenue Department, banks, credit agencies etc.

9. INTELLECTUAL PROPERTY

9.1 Intellectual property rights in all documentation, system, materials, methodologies and processes brought to the assignment or created during the assignment shall remain and be vested in NZ Tax Desk Ltd.

9.2 Any work papers prepared by us in relation to your engagement remain our property.

10. ELECTRONIC COMMUNICATIONS

10.1 Each of us agrees that we may communicate with each other electronically. You acknowledge that electronic transmissions are inherently insecure, can be corrupted or intercepted, may not be delivered and may contain viruses. Neither of us is responsible to the other for any loss suffered in connection with the use of e-mail as a form of communication between us. You consent to receiving such messages until such time as you notify us in writing that you no longer wish to receive them.

10.2 In accordance with the Unsolicited Electronic Messages Act 2007, you consent to receiving emails, texts or other electronic transmissions such as newsletters, notification of seminars, items of interest or promotional material from us, unless you notify us to the contrary.

11. LIMITATION OF LIABILITY

11.1 In consideration for NZ Tax Desk Ltd agreeing to act as your professional services provider and perform any services covered by this Contract, no claim for direct or indirect damage against us in respect of any services provided shall in any case exceed an amount equal to three times the fees rendered for the Services in respect of which such damage arose.

11.2 In consideration for NZ Tax Desk Ltd agreeing to act as your professional services provider and perform any Services covered by this Contract, you agree to indemnify us against all claims of any kind brought by any person or entity in connection with any Services provided to you.

11.3 To the extent permitted by law, our directors and employees shall have no liability to you, whether for breach of contract, tort (including, without limitation, negligence), breach of statutory duty or otherwise, arising in any way out of or in connection with the Services. You agree not to bring any claim (whether in contract, tort (including, without limitation, negligence), breach of statutory duty or otherwise) arising in any way out of or in connection with the Services against any of our directors or employees personally. This will not limit or exclude any liability we may have for their acts or omissions. This clause is expressly for the benefit of our directors and employees, and you agree that each such person is entitled to rely on this clause as if they were parties to this Contract. We are also entitled to bring proceedings to enforce this clause on behalf of our directors and employees.

12. GUARANTEES

12.1 The Consumer Guarantees Act 1993, the Commerce Act 1986, the Fair Trading Act 1986 and other statutes may imply warranties or conditions or impose obligations upon us which cannot by law (or which can only to a limited extent by law) be excluded or modified. Our liability shall only apply to the minimum extent required by any statute. You acknowledge that if our Services are provided to you for the purposes of a business, the provisions of the Consumer Guarantees Act 1993 shall not apply to our supply of such Services.

13. FEES AND EXPENSES

13.1 You agree to pay fees for the Services, which may be charged on an hourly basis. Goods and Services Tax (“GST”) at the prevailing rate will be added to and forms part of our fees (where applicable). It is a fundamental term of this Contract that we look to you as the responsible party for the payment of our fees and expenses. This is even though part of our fees and expenses may relate to Services provided to other entities and/or individuals.

13.2 All fees are billed in NZD unless otherwise stated in our Engagement Letter.

13.3 You agree to pay our reasonable out of pocket expenses incurred in connection with the Services. The charge will be calculated as the amounts we incur (net of any GST input tax credit to which we are entitled) plus GST as applicable.

13.4 Where possible, we will give you an estimate of our fees in the Engagement Letter (or Proposal). Any fee estimate is based on our current understanding of the circumstances and scope of work required, and therefore is not binding on us.

13.5 A flat fee will be rendered for providing tax management services and tax payment reminders of $75 per entity plus GST. Further a flat fee of $140 shall be charged for filing corporate annual returns online, plus any disbursement paid to the Companies Office.

13.6 We may revise our fee scale from time to time. Rates quoted to you remain in force until the next 31 December or 30 June (whichever is sooner). We may increase our fees for any work performed after these dates.

13.7 If we have assessed that no GST should be payable in respect of the Services, and for whatever reason, we change its assessment, or if the IRD assesses that GST is payable, then it will be added to and form part of our fees and expenses at the prevailing GST rate. We reserve the right to recover from you at any time, any GST payable by us on the provision of the Services, goods or any other items supplied to you under this Contract.

13.8 If we receive any legally enforceable notice or demand issued by any third party in relation to or in connection with the services, you agree to pay our reasonable professional costs and expenses (including solicitor/client expenses) in complying with or challenging any such notice or demand to the extent that our costs and expenses are not recovered or recoverable from the party issuing the notice or demand. We will notify you as soon as practicable (unless restricted by law) where we receive any such legally enforceable notice or demand.

13.9 You acknowledge and agree that NZ Tax Desk Ltd reserves the right to retain possession of all your information relating to the Services until all outstanding fees have been paid.

14. LATE OR OVERDUE FEES

14.1 If payment of any fee is not received by the due date NZ Tax Desk Ltd may charge interest on the balance outstanding after the due date, at a rate of 3% per calendar month or part thereof compounded from due date to date of actual payment.

14.2 If a client’s debt is passed onto a third party, the client will be responsible for ALL associated recovery costs.

14.3 NZ Tax Desk Ltd may withdraw our services and decline to continue further work until the fee is paid in full or until you have agreed an acceptable repayment arrangement with us. Should services be withdrawn we will not be held liable for any penalties or interest charged or accrued as a result of late filing of tax returns or other documents during the period that services are withdrawn.

15. PERSONAL GUARANTEE BY THE CLIENT

15.1 Where you/the Client are trading via a company, Trust or Limited Partnership, in consideration for NZ Tax Desk Ltd agreeing to provide services to the Client/you, the natural persons instructing NZ Tax Desk Ltd who are the principal owners of the Client group of related entities jointly and severally guarantee all of NZ Tax Desk Ltd’s charges arising out of any engagement as if you/they personally (and jointly and severally) instructed the work to be done. The natural person/s instructing NZ Tax Desk Ltd to act for their related Client group of entities also acknowledge that you/they execute this contract both in a personal capacity and on behalf of the company, Trust, Limited Partnership or other entity (where applicable), such that all obligations under their contract for services to NZ Tax Desk Ltd are both the separate entities obligations and you/r personal obligations.

15.2 In consideration for NZ Tax Desk Ltd agreeing to act for the Client, each Client agrees to jointly and severally guarantee the debts due to NZ Tax Desk Ltd of other related party clients to the Client Group that have related party shareholders.

16. CONTRACTORS AND THIRD PARTIES

16.1 We reserve the right to employ contractors to provide some or all the Services, and any reference to our staff or employees includes such contractors. We will remain liable to you for any of the Services that are provided by our contractors.

16.2 From time to time we, and our third-party contractors may engage external IT service providers (including in relation to ‘cloud computing’ services) in the performance of services under this engagement. You hereby authorise us and our third-party contractors to disclose information relating to your affairs to all such external IT service providers as we or our third-party contractors may choose to engage.

17. ANTI-MONEY LAUNDERING AND COUNTERING FINANCING OF TERRORISM ACT 2009

17.1 NZ Tax Desk is a reporting entity under the Anti-Money Laundering and Countering Financing of Terrorism Act 2009 (AML). This means we are required to comply with AML legislation for specific services we provide to new and existing clients.

17.2 NZ Tax Desk Ltd may be required to sight valid documentation to prove certain details e.g. identity, address etc not only for the client and entities in their direct control but also for other parties involved in any related entities.

17.3 In the event that during the client’s relationship with NZ Tax Desk Ltd and subsequent to providing us with valid proof per the above the client changes their name or address or the identification used to prove their identity is replaced for any reason then the client must provide updated details and valid proof to NZ Tax Desk Ltd as soon as they possibly can.

17.4 In consideration for NZ Tax Desk Ltd agreeing to act for the Client, the Client agrees that if they change their business and or commence any new or different business to that previously disclosed to NZ Tax Desk Ltd, then the client irrevocably undertakes to immediately notify NZ Tax Desk Ltd of the new business to allow NZ Tax Desk Ltd to perform customer due diligence in order to satisfy NZ Tax Desk Ltd’s obligations under the Anti-Money Laundering and Countering Financing of Terrorism Act 2009 (AML). The parties agree by extension of this that failure on the Client’s part to notify NZ Tax Desk Ltd shall constitute a breach of this Contract with NZ Tax Desk Ltd, and the further the Client agrees to indemnify NZ Tax Desk Ltd for any subsequent losses including statutory fines resulting to NZ Tax Desk Ltd as a result of the Client failing to provide such notification.

17.5 NZ Tax Desk Ltd will invoice clients for the costs of AML compliance for their related entities. This will likely be in the form of a fixed fee to cover general AML compliance and additional fees charged at time and cost in situations where the compliance takes longer for reasons outside the control of NZ Tax Desk Ltd including delays caused by the client or any other third party that the client has instructed. These fees may change overtime as interpretation of the AML law is clarified for our industry.

18. GENERAL

18.1 Relationship with other clients

We provide services to other clients, some of whom may be in competition with you or have interests which conflict with your own. We are not prevented or restricted by virtue of our relationship with you under this Contract from providing services to other clients.

18.2 Waiver

Failure by us to enforce any of the terms and conditions contained in this contract shall not be deemed to be a waiver of any of the rights or obligations we have under this contract. Further, if any provision or item of this contract fails, all remaining provisions shall stand enforceable between the parties.

18.3 Conflict of Interest

Except as disclosed in the Engagement Letter (or Proposal), we are not aware of any conflict of interest which would affect our ability to provide the Services to you. We will advise you if we become aware of any actual or potential conflicts of interest, and we will work with you to find a suitable solution.

18.4 Termination

Either of us may terminate this Contract:

• At any time by giving the other 30 days written notice; or
• Immediately if the other becomes insolvent or otherwise ceases to carry on business or commits any material breach of this Contract that is either incapable of being remedied or is not remedied within 14 days of receipt of a notice requiring the breach to be remedied.

We may terminate this Contract if:

• You fail to meet your obligations under this Contract including to pay our Fees within the time specified or to provide us with adequate Information or instructions; or
• There is a change of circumstances beyond our reasonable control that prevents us from providing the Services to you.

If this Contract is terminated, you agree to pay us the Fees for any work we have done and any expenses we have incurred up to the date of termination.

Termination of the Contract shall be without prejudice to any of the parties’ accrued rights. The terms of the Contract which expressly or by implication are intended to survive its termination or expiry will survive and continue to bind the parties.

18.5 Address for Services

Any written notice to be given to a party must be delivered in person, by letter or by facsimile transmission, to:

(a) in the case of notices to us, to our address, clearly marked for the attention of the person appearing in the Engagement Letter (or Proposal); and

(b) in the case of notices to you, to the address last notified by you.

18.6 Governing Law

This Contract and all relationships and attendances resulting from it are to be governed and construed in all respects in accordance with the laws of New Zealand.

18.7 Fee Disputes

In the event that a disagreement arises over an invoiced fee for the Services, and both parties cannot mutually agree on an amicable resolution, then we both agree to resolve the matter through the fee resolution service provided by Chartered Accountants Australia New Zealand (CAANZ). Information on the fee resolution service process and costs can be found on the Chartered Accountants Australia New Zealand (CAANZ) website.

18.8 Complaints

Any complaints that arise in the course of NZ Tax Desk Ltd providing the Services should be directed to the person responsible for providing the Services.

Every complaint will be investigated and parties in the first instance will endeavour to agree to an amicable resolution.

Where a resolution cannot be agreed upon, the complaint will be referred to a mediator or the appropriate Chartered Accountants Australia New Zealand (CAANZ) complaints forum for resolution before you commence legal proceedings.

18.9 Force majeure

Neither party will be liable to the other for any delay or failure to fulfil their obligations (excluding payment obligations) under this Contract to the extent that any such delay or failure arises from causes beyond their control, including but not limited to fire, flood, acts of God, acts or regulations of any governmental authority, war, riot, terrorist activities, strikes, lockouts and industrial disputes.

18.10 No assignment

You shall not assign all or any of your rights or obligations under this contract without our written consent.

18.11 Validity of Contract terms and severance

If any provision of this Contract is held to be invalid, in whole or in part, such provision shall be deemed not to form part of and will be severed from, the Contract. The enforceability of the remainder of the Contract will not be affected.

18.12 Conflicting terms

(a) In the event of any conflict between the Engagement Letter and these Terms of Business, or the Proposal, the Engagement Letter will take precedence.

(b) Nothing in this Contract applies to the extent that it is invalid or prohibited by the operation of the Companies Act or any other law.

18.13 IRD Refunds

The IRD has advised that all future refunds they issue must be direct credited to a bank account as they are abolishing cheques. Mistakes by the IRD are relatively common and the new policy removes our ability to check the amount refunded is correct before you receive it. You must therefore let us know immediately if you receive a refund from the IRD that is unexpected or different to what we have indicated to you so that we can identify the reasons and any actions that might be required. Any failure or delay in communicating to us any such errors or variances could result in increased tax, interest and penalties owed to the IRD even if the IRD made the original error. If you are at all unsure, please advise and we will clarify for you.

19. ACCEPTANCE

Any instructions received by us from you for the supply of services shall constitute acceptance of the terms and conditions contained herein by you and all entities related to you / the Client.

20. DEFINITIONS

For the purpose of this Contract:

“Contract” means the agreement between you and NZ Tax Desk Ltd as set out in these Terms of Business and the Engagement Letter (or Proposal) together with any changes to the Contract that are agreed in writing between you and NZ Tax Desk Ltd.

“Engagement Letter” means the Engagement Letter or confirmation letter to which these Terms of Business are referred.

“Proposal” means any written proposal for the provision of the Services, other than the Engagement Letter.

“NZ Tax Desk”, “NZ Tax Desk Ltd”, “we”, “us” and “our” shall mean NZ Tax Desk Limited, any subsidiary or related entity, as the case may be or any agents, employees, contractors or any subsequent entity renamed from any of the above.

 “You” shall mean the Client, any person acting on behalf of and with the authority of the Client, or any person purchasing services from NZ Tax Desk Ltd with ostensible authority from you.

“Client” shall mean you, and any entity that you are a related party to, that instructs NZ Tax Desk Ltd to provide professional services for it.

 “Services” shall mean all professional services provided by us to you on your instructions, including the provision of all incidental goods, professional accounting services, company formations, professional advice, taxation consultancy, or software installation and support as the case may be or any fee, charge or disbursement cost associated with the supply of Services by us to you.

DATED: 11 January 2023