Standard Terms of Chakra Partners Limited (CPL)
Updated: 1 April 2016
The following terms and conditions apply to the supply by us of services (collectively “Services”, or individually a “Service”) to our customers. In addition to these Terms, terms and conditions specific to a particular Service (“specific product terms”) may also apply. Those specific product terms “sit beneath” these general Terms.
Introduction
These terms and conditions (“Terms”) apply to work undertaken for you by Chakra Partners Limited (including its executive management, staff, sub-contractors and related entities) (“CPL/we/us”). The terms will apply except where we have otherwise agreed with you in writing. “You” means our client as identified in any engagement letter, correspondence or otherwise agreed. Where you are a company or other corporate or unincorporated entity, we act only for you. We do not act for your shareholders, directors or members unless we expressly agree otherwise.
These Terms will apply to all work we undertake for you with respect to this engagement. You accept and agree to this Agreement by continuing to instruct us. If there is any conflict between these Terms and any Engagement Letter, then these Terms will prevail (except in circumstances where an Engagement Letter refers to and modifies a specific provision of these Terms). If there is any inconsistency between these Terms and any Price Agreement, the Price Agreement will prevail.
In providing the services, we may use people and other resources of other CPL firms or related parties (Affiliates, being any entity controlled by, controlling or under common control with CPL’s shareholders), but the obligation to provide the services remains with us.
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Services
You are responsible for determining that the scope of the services is sufficient to meet your needs. We will use all reasonable commercial efforts to provide the Services in an efficient and timely manner and maintain the appropriate professional standard, using reasonable care, skill and expertise.
We can report to you regularly and a completion date can be provided if necessary. Unless otherwise agreed in writing, any timetables set will be for planning and management purposes only and will not be contractually binding upon us.
Unless specifically stated to the contrary in an engagement letter:
• We may allocate appropriate executive staff, partners, staff and sub-contractors to perform the services and may replace any personnel named in the engagement letter with personnel of similar skills;
• Our services do not involve an audit or examination conducted in accordance with Australian, New Zealand or any other international auditing standards and we will not express an opinion on any financial statements or information taken as a whole, nor provide any opinion on the achievability of prospective financial information. We will rely on the information that your provide and will not verify that information;
• Our services do not include the provision of legal advice or legal due diligence services; if the services depend upon laws, regulations or interpretations by Government agencies, we are not responsible for any changes in those laws, regulations or interpretations (whether or not having retrospective effect) which occur after the date of our report and are not required to notify you of such changes;
• Our services are not designed to reveal fraud or misrepresentation. Accordingly, we do not accept responsibility for detecting fraud or misrepresentation whether by directors, management, staff or external parties;
• We are not responsible for the work of any other person who you engage to perform work in conjunction with our services.
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Term
This Agreement will apply from the commencement date stated in the Engagement Letter or, where no commencement date is stated, from the date on which you accept the Engagement Letter or the date we commence work.
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Reliance on our work
Any advice given will be based on our understanding of the statute, case law and practice as at the date of the advice. Therefore, any subsequent changes in the law and practice may affect its conclusions. It is also possible that others, including government Tax Offices and the Courts, could reach conclusions that differ from those expressed in our advice. This is particularly relevant for tax advice due to the nature of tax law.
We are under no legal obligation to update the advice for events occurring after the advice has been given, including subsequent changes in law, judicial decisions or Tax Authorities policy changes and do not undertake to do so. You should ask us to confirm advice previously given if you want to repeat a transaction or if an action that we have advised on is delayed. We accept no responsibility for different outcomes arising from such changes.
It is our policy to set out in writing (which may be by e-mail) any advice on which you may wish to rely. In many cases, our advice will include a summary of our understanding of the facts or background on which our advice is based. It is important that you tell us if you think this summary does not accurately reflect the facts since our analysis of the transaction and resulting advice may then change.
During the supply of our Services, we may supply oral, draft, interim or ad hoc advice, reports or presentations but in such circumstances our written advice or final written report will take precedence. No reliance should be placed by you on any oral, draft, interim or ad hoc advice, reports or presentations. We accept no liability for any such oral, draft, interim or ad hoc advice, reports or presentations. Where you wish to rely on oral advice or an oral presentation, you must inform us at the time the oral advice or oral presentation is given and we will provide written confirmation of the advice. You will be free to follow or to disregard, in whole or in part, any recommendations we may make. You will be responsible for any & all decisions regarding the implementation of any of our recommendations. However, if you should elect not to implement our recommendations, you will thereby waive any claim for a refund of any fees. The services are intended for the addressee of the engagement letter only and should not be relied upon by management of, or advisers to, the addressee in their personal capacities.
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Disclosure of our work
The services are provided for your use only and we accept no responsibility or liability to any other person. You must not disclose any report or other information provided as part of the services to any other person without our prior written consent. You must not use our name in connection with any prospectus, information memorandum or other offer or marketing document, whether public or private, without our prior written consent.
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Fees
You will pay our fees for Services. It is important to us that you understand the basis upon which our fees are calculated, the times when fees and disbursements will be invoiced and our expectations for payment. Unless otherwise agreed, our fees are calculated by us after taking account of a number of factors, including the:
• Time and labour expended;
• Levels of skill, specialised knowledge and responsibility involved;
• The importance of the matter to you and the results achieved;
• The urgency and circumstances in which your matter is carried out;
• The complexity of the matter and the difficulty or novelty of the issues involved;
• The number and importance of the documents prepared and considered; and
• The reasonable costs of running a practice.
We can provide a fixed price or estimate for particular tasks or projects which can be adequately defined. Any fixed price given will be binding on us in accordance with the terms of any Price Agreement. Estimates given will be a guide only and will not constitute a fixed price. Fixed prices or estimates will depend on the accuracy, timeliness, completeness, relevance, and reliability of records and information provided by you. You agree to pay reasonable professional fees and expenses, including legal fees and expenses, in complying with or challenging any legally enforceable notice or demand issued by a third party including any government department or any court or tribunal in relation to or in connection with the services.
We reserve the right to change our fees and these terms from time to time and will publish the changed fees and terms on our website.
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Disbursements
In addition to our fees, we may charge disbursements that are necessary to effectively carry out “the services”. Disbursements may include reasonable travel, subsistence and document handling costs (photocopying, printing, facsimile and courier etc). These disbursements are charged by way of either an administration disbursement based on a percentage of your previous or expected monthly fees or directly in relation to costs incurred by us with an appropriate mark-up.
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Invoices
Invoices will normally be rendered twice during a calendar month. In instances where the Services have not been completed by month end, a progress invoice may be rendered.
Invoices are payable in accordance with the terms specified on the invoice unless otherwise agreed in writing. Our invoices are due for payment within 14 days. If your account remains unpaid and there is no satisfactory explanation for non-payment, we may do any or all of the following:
• Charge interest on overdue amounts at the rate of 5% over the current 90 day bank bill rate in New Zealand or such other rate as may be stipulated in the Engagement Letter; and/or
• Add an administration fee of NZD 25.00 (or equivalent) plus GST (if any) for each statement or reminder we send you (not exceeding 1 fee per 14 days) and/or
• Start proceedings to recover the amount owed from you, plus default interest and any collection costs incurred. It is our policy to commence legal proceedings if our fees remain unpaid after 30 days unless an arrangement plan is approved by us. All costs (including without limitation debt collection fees and our solicitor’s legal expenses) incurred by us in recovering or attempting to recover payment of any debt owed by you to us will be payable by you upon demand; and/or
• Cease to do any further work for you, including (but not inclusive of) postponing filing your tax returns & withhold your papers & files until all accounts are paid.
If we agree to address an invoice to another person, you will be required to pay that invoice if the other person does not. We are always prepared to discuss the amount of any invoice with you. If you have any questions or concerns, please contact the person responsible for the management of your matter.
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Information
You will provide us promptly with accurate & complete information reasonably required for the proper performance of the Services, including access to appropriate members of your staff, records, information technology, systems and premises. We will be entitled to rely upon the accuracy of all information provided by you, or by others on your behalf, without independently verifying it. You must notify us promptly if any information provided by you is rendered untrue, unfair or misleading. If required, you must take all necessary steps to correct any communication or document issued which contains, refers to or is based upon such information.
Information made available by you, or by others on your behalf, to or which is otherwise known by, any of our personnel who are not engaged in the provision of the services will not be deemed to have been made available to those of our personnel who are engaged in the provision of the services to you. We have no duty to disclose information to you which is not actually known by those working on your matter, even though that information may be relevant to you.
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External Information
In advising you we may rely on, or provide you with, external information or public records (eg, government agencies or registers). This information may not always be accurate or complete. 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 or public records.
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Liability limitation
We will be liable to you for net losses, damages, costs or expenses (losses) caused by our gross negligence or wilful default, except:
• We will not be liable if such losses are due to the provision of false, misleading, incorrect or incomplete information or documentation by you, our reliance on instructions provided by you, or due to any acts or omissions of any person other than CPL;
• We will not be liable to you for accidental, incidental, indirect, special, punitive or consequential damages or for loss of profits or savings, even if CPL has been advised of, knew or should have known of the possibility of such damage or loss;
• We will have no liability for any statements, representations, guarantees, conditions or warranties (together representations) arising from communications (oral or written) which are not expressly contained in this Agreement. All representations to exercise reasonable care or render our Services with due care and skill which may otherwise be implied by statute, common law or custom are expressly excluded; and
• The aggregate liability of CPL, whether to you or any third party, of whatever nature, whether in contract, tort or otherwise, for any losses (including interest) whatsoever and howsoever caused arising from or in any way connected with this engagement shall not exceed 2 (two) times the fees invoiced under this engagement letter.
We will have no other liability of any nature, whether in contract, tort or otherwise, for any losses, caused, arising from or in any way connected with our engagement.
You agree that our liability for any and all loss or damage suffered by you (in aggregate) (whether direct, indirect or special) in connection with our engagement will be limited to the amount of professional fees paid to us for the Services or such other maximum amount as stated in our Engagement Letter. You agree to release us from all claims arising in connection with the Services to the extent that our liability in respect of such claims would exceed this amount. If the Services were provided in respect of more than one financial month, the fee on which the liability amount is based will be the fee paid in respect of the financial month in respect of which the act or omission occurred.
You agree that all claims against us, whether in contract, tort, negligence, equity or otherwise, must be formally commenced within 12 months after the party bringing the claim becomes aware (or ought reasonably to have become aware) of the fact which gave rise to the action and in any event no later than two years after any alleged breach of contract, tort, negligence, equity or other cause of action arises.
Where this Agreement applies to more than one Client, the limitation of liability contained in this clause must be allocated among these Clients. Such allocation is a matter to be resolved by those Clients.
You agree to look only to CPL or the insurance maintained by us to satisfy our obligations or liabilities to you under this Agreement or otherwise. None of our Affiliates, nor ours or our Affiliates’ officers, partners or Personnel will be liable for our obligations to you. You will not commence any action or proceeding against any such persons for the purposes of enforcing your rights under this Agreement. This clause is intended to be for the benefit of, and enforceable by, those persons described in this clause for the purposes of the Contracts (Privity) Act 1982.
This clause may be amended without the need to obtain the consent of any of those persons.
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Equitable sharing of liability
Subject to the maximum aggregate liability specified in the “Liability limitation” clause, our aggregate liability shall be limited to that proportion of the total damage for which we are responsible. Each party shall bear only that part of any loss or damage that is proportionate to the loss or damage it has directly caused. In determining responsibility for loss or damage caused, account shall be taken of any loss or damage that is reasonably attributable to any third party. Nothing in these terms and conditions affects the rights, obligations or remedies of the parties under the Contributory Negligence Act 1947 or the Law Reform Act 1936.
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Indemnity
You agree to indemnify us:
• Against any and all losses, claims, costs, expenses, actions, demands, damages, liabilities or any other proceedings, incurred or suffered by us, including in respect of any claim by a third party (whether in contract, tort, or otherwise), arising from any breach by you of your obligations under this Agreement or by reason of any action we take in good faith;
• Against any and all losses, claims, costs, expenses, actions, demands, damages, liabilities or any other proceedings, incurred or suffered by us in respect of any claim by a third party (whether in contract, tort, or otherwise) from your use of our work product; and
• From any liabilities we may have to you or any 3rd party as a result of reliance by us on any information provided by you or any of your representatives, which is false, misleading, incorrect or incomplete or as an result of the failure to provide information which was material information held in your possession or control.
The indemnities in this clause will include all costs incurred by us in regard to such liability or claim, including legal costs, the time of CPL Personnel and the costs of any expert engaged by us to assist in dealing with the claim or liability in any way.
Confidentiality
In the course of the engagement, you (and other parties where we are acting on your behalf) may provide us with proprietary and confidential information. We agree to hold such information in strict confidence, and not to disclose such information, except:
• As required by law or professional regulation;
• As is or becomes public knowledge, otherwise than as a result of a breach, by the party disclosing or using that confidential information;
• As authorised by you in writing;
• To the extent reasonably required by this Agreement (and, without limiting the effect of this clause, a party may disclose confidential information only to those of its officers, employees or professional advisers, on a “need to know” basis, as is reasonably required for the implementation of this Agreement).
You agree not to disclose confidential information about us or our concepts or techniques unless required to do so by law.
Where appropriate, we may use in internal and external publicity material the credentials obtained in doing work for you. We will only publicly claim credit for our work for you where we have your permission to do so, which may be given generally for the work we do for you. However, unless you expressly forbid us doing so, we may refer to our work for you in proposals (or other similar submissions to prospective clients).
CPL will use your personal information to continually enhance the range of value-added products and services that we can provide to you (such as, but not limited to, data analytics, data forensics, business intelligence, and benchmarking services). In using and sharing your personal information CPL will take all practical steps to ensure that it is de-identified and aggregated so that your personal information and privacy is protected.
The use of your personal information, and the products and services that arise from that use, is solely for the benefit of CPL clients. CPL will not sell or trade personal information to third parties, or allow such third parties to use that personal information. CPL will not disclose identifiable confidential information acquired in the course of conducting professional work unless required by law or where there is a professional right or duty to disclose the information.
Ownership and destruction of working papers
All papers (including work-papers), documents, concepts and techniques we produce in the course of our work for you, regardless of whether they form part of the finished product, are and will remain our property. We also retain the copyright and all intellectual property rights in all original material provided to you.
Where reasonably possible we will inform you if any other person requires access to your work-papers and ask your permission before granting access to any person unless we are compelled to do otherwise by law.
At the end of this engagement we will keep your file and documents for the minimum period stipulated by any relevant legislation. We reserve the right to destroy correspondence and other papers once we (reasonably) believe they need no longer be retained, unless you write to us telling us not to do so.
If we are provided with custody of any documents by you or on your behalf, including share registers or constitution documents, those documents will be retained during the course of our appointment and will be returned to you at the end unless separate arrangements have been made. Those documents remain owned by you. We will be entitled to retain copies. We reserve the right to exercise a lien over any documents and files belonging to you, which may be in our possession.
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Intellectual property rights
Intellectual property rights in all documentation, systems, materials, methodologies and processes (tools) brought to and utilised by CPL in relation to the services or created in the course of providing the services, and in all working papers and reports, remain vested in CPL.
Subject to the requirement to treat confidential information as confidential any spreadsheet, database, system, technique, methodology, idea, concept, information or know-how developed in the course of the contract may be used in any way we deem appropriate, including by or for our clients, without any obligation to account to you. In the case of documentation or software prepared by CPL for you we may, on termination or completion of the contract, retain one copy of such information as a professional record or our involvement.
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Communication
During our performance of the Services we may wish to send messages and documents electronically. You acknowledge that electronic communication carries with it the possibility of inadvertent misdirection, interception or non-delivery of confidential material. If you do not consent to the use of electronic communication in the course of providing the Services, you should notify us in writing.
We do not accept responsibility and will not be liable for any damage or loss caused in connection with the interception or corruption of an electronic communication or if it contains a virus. We will not be liable for any damage or loss arising as a result of any unauthorised copying, recording, reading or interference with that document, for any delay or non-delivery of any document and for any damage caused by your system or any files by that message or document.
We produce electronic newsletters and may conduct webinars for clients, which cover a range of topics. We may add you to our database so that you will receive newsletters and invitations to webinars that we consider will be useful to you. However, please let us know if you do not want to receive any such correspondence.
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Other engagements
Nothing in this contract prevents CPL from providing services to other clients provided that we take reasonable steps to ensure that each client’s confidential information is not disclosed to other clients.
This contract is separate from other engagements that we may perform for you or for other clients and we have no obligations to utilise knowledge gained from such other engagements when performing the services under this contract.
By entering into this Agreement and providing the services, we do not assume a responsibility to you in relation to any reports or opinions that we may have provided under separate engagements, including statutory audit reports, or in relation to any other work that we may have performed for any other client, whether or not that client is the subject of the services.
Circumstances outside the Parties’ control
Neither party will be liable to the other for any failure to fulfil obligations cause by circumstances outside its reasonable control.
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Assignment
Neither party may assign, transfer, charge or otherwise deal with its rights or Partial invalidity obligations under the contract without the prior written consent of the other party, except that each may transfer its respective rights and obligations to a partnership or legal entity authorised to take over all or part of its business.
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Resolving disputes
If at any time you would like to discuss how the Services can be improved or you would like to make a complaint, please contact us. We will investigate any complaint promptly to resolve the difficulties.
In the event of a dispute, or where fees remain unpaid beyond the due date, we reserve the right to suspend provision of the Services until such time as the dispute is resolved or the fees are paid. The suspension of the Services will not affect your obligation to pay us for Services rendered to the date of suspension.
This Agreement is governed by New Zealand law. Both parties agree to irrevocably submit any disputes arising under this Agreement first to mediation and then to the exclusive jurisdiction of the Courts of New Zealand. The parties undertake to use all reasonable efforts in good faith to resolve any dispute which arises between them. If the parties fail to resolve the dispute, then the parties will try to settle their dispute by mediation before resorting to litigation. Either party may initiate mediation by giving written notice to the other party. The mediator should be agreed by the parties, but if the parties cannot agree on one within five business days after the mediation has been initiated, then the mediator shall be selected by Lawyers Engaged in Alternative Dispute Resolutions (LEADR) or its successor. Before the mediation commences, the parties and the mediator must sign a mediation agreement in an agreed form.
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Variation
No variation of this Agreement will be valid unless confirmed in writing by authorised signatories of the parties on or after the date of signature of the Engagement Letter, provided that these Terms may be amended by us and the amended Terms shall apply to any engagement entered into after we notify you of the amended Terms.
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Termination and Assignment
If either party commits a breach of this Agreement and fails to remedy the breach within 14 days of receiving written notice, the party giving the notice may cancel this Agreement on written notice, without prejudice to any other right it may have in the circumstances.
In any case this Agreement may be terminated by either party on written notice to the other party. You must pay our fees for work done and for other charges incurred up to the time of termination. You may not assign or transfer any of your rights or obligations under this Agreement. If we have custody of any documents owned by you that are otherwise required by law to be held at our premises, you will ensure that the place at which they must be held is changed to your or some other address prior to the end of our appointment unless otherwise agreed.
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Entire agreement
These Terms, the Engagement Letter and any Price Agreement record our entire understanding and agreement relating to the matters dealt within them. This Agreement supersedes all previous understandings or agreements (whether written, oral or both) between us relating to such matters.
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Partial invalidity
If any provision of this Agreement is or becomes invalid or unenforceable, that provision will be deemed deleted from this Agreement. The invalidity or unenforceability of that provision will not affect the other provisions of this Agreement. All the other provisions will remain in full force and effect to the extent permitted by law, subject to any modifications made necessary by the deletion of the invalid or unenforceable provision.
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Definitions
Words not defined elsewhere in these Terms have the meaning set out below.
Appendices mean the appendices or attachments to the Engagement Letter.
Client means the person/s requesting Chakra Partners Limited to provide the Services 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.
Engagement Letter means the engagement letter in any form including email and any Appendices.
Price Agreement means an agreement to provide specific services to you at a fixed price and which is expressly stated to be a fixed price agreement.
Personnel means principals, other employees, related party entity employees, consultants and sub-contractors.
Services means the services set out in our Engagement Letter.
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