Terms of service.

Terms of Engagement

1 General

1.1 These terms apply to all services provided or to be provided by us to you.  If there is any inconsistency between these terms and any other specific terms that we have agreed in writing, then that other agreement shall prevail.

1.2 We are entitled to change these terms from time to time, in which case we will send you amended

1.3 We are bound by, and will comply with the Lawyers Conduct and Client Care Rules of the New Zealand Law Society (Rules).

2 Services

2.1 You authorise us to provide legal services, as defined in the Lawyers and Conveyancers Act 2006, to you on each instruction from you that we accept and to incur reasonable expenses on your behalf. These may include engaging external barristers and experts, and law firms in other countries. You agree to meet the costs of these.

2.2 Our services will not include the provision of legal advice on tax matters, including the tax implications associated with any agreement, transaction, or settlement on which we are advising you, or foreign law matters unless we have agreed in writing to provide that advice.

3 Communications

3.1 contact details, including email address, postal address and telephone numbers. We may provide documents and other communications to you by email (or other electronic means). You will advise us if any of your contact details change.

3.2 We take a number of precautions to ensure that our electronic communications with you are secure, reliable, received in a timely manner, and free from viruses and other defects. As electronic communications are subject to risks of interference and depend on matters outside our control, however, we do not give any warranty as to those matters. If you are concerned that an electronic communication that appears to come from us has been interfered with or is fraudulent, please contact us immediately.

3.3 We will report to you periodically on the progress of any engagement and will inform you of any material and unexpected delays, significant changes or complications in the work being undertaken. You may request a progress report at any time.

3.4 You agree that we may provide you from time to time with other information that may be relevant to you, such as newsletters and information bulletins.  At any time you may request that this not be sent to you.

4 Fees

4.1 Our fees are calculated in accordance with our engagement letter.

(a) If our engagement letter specifies a fixed fee, we will charge this for the agreed scope of the services set out in that engagement letter. Our professional services which fall outside the agreed scope will be charged on an hourly rate basis.  We will advise you as soon as reasonably practicable if it becomes necessary for us to provide services outside of the agreed scope and, if requested, give you an estimate of the likely amount of the further costs

(b) Where our fees are calculated on an hourly basis, the hourly rates of the people we expect to undertake the work are set out in our engagement letter.  Any differences in those rates reflect the different levels of experience and specialisation of our professional staff.  Time spent is recorded in six-minute units.

(c) Hourly fees may be adjusted (upwards or downwards) to ensure the fee is fair and reasonable to take into account matters such as the complexity, urgency, value and importance of the Services.  Full details of the relevant fee factors are set out in Rule.

4.2 We may charge a fee to cover out of pocket costs which are not included in our fee and which are not recorded as disbursements. These include items such as photocopying and printing, postage and phone calls.

4.3 We will send interim invoices to you, usually monthly, and on completion of the matter, or termination of our engagement.  We may send you invoices more frequently when we incur a significant expense or undertake a significant amount of work over a shorter period of time.

5 Disbursements and Third-Party Expenses

5.1 In addition to fees for our professional services, we may incur disbursements and payments to third-parties on your behalf. You authorise us to incur these disbursements (which may include such items such as search fees, court filing fees, registration fees and travel and courier charges) which are reasonably necessary to provide our services. 

5.2 You also authorise us to make payments to third parties on your behalf which are reasonably required to undertake our services (which may include items such as experts’ costs or counsel’s fees).  These will be included in our invoice to you, shown as “disbursements” when the expenses are incurred (or in advance when we know we will be incurring them on your behalf). 

6 Estimates

6.1 We will provide a fee estimate if you request one.

6.2 Our fee estimate may be stated as a range. We will endeavour to ensure that any estimate of our fee is realistic, and where appropriate, we will state any significant assumptions in making the estimate and any areas of particular uncertainty. For more complex matters we will endeavour to break the work down and give an estimate prior to the start of each stage.

6.3 Any estimate is a guide only. The amount of the final fee may be more or less depending on all the circumstances, and we reserve the right to charge a fee that exceeds the estimate for any reason. If we are going to significantly exceed our estimate we will contact you to discuss a revised estimate, but any failure to do so does not prevent us from charging a fee in excess of our estimate.

6.4 Unless otherwise stated, any fee estimate or rate will not include office charges, disbursements or GST.

7 Billing

7.1 We will normally send you a monthly account on an interim basis for ongoing matters involving work spread over more than one month.

7.2 Final accounts will be rendered on completion of each matter.

7.3 We may ask you to pre-pay amounts to us, or to provide security for our fees and expenses. We may do this, on reasonable notice, at any time.

8 Payment

8.1 Our accounts are payable within 14 days of the date of an invoice unless alternative arrangements have been agreed with you in writing.

8.2 You authorise us to deduct our fees and other expenses from funds held in our trust account on your behalf on provision of an invoice to you, unless those funds are held for a particular purpose.

8.3 Where we have been instructed by two or more people, each person is jointly and severally liable for the payment of our fees.

8.4 Although you may expect to be reimbursed by a third-party for our fees and expenses, and although our invoices may at your request or with your approval be directed to a third-party, you remain responsible for payment to us in accordance with these terms if the third-party fails to pay us.

9 Unpaid Accounts

9.1 Should you have difficulty in meeting any of our accounts, please contact us without delay so that we may discuss whether a payment arrangement is appropriate.

9.2 If your account is overdue, we may:

(a) require interest to be paid on any amount which is more than 14 days overdue, calculated at the rate of 2%per month for the period that the invoice is outstanding;

(b) stop work or terminate our representation of you on any matters in respect of which we are providing services to you;

(c) require an additional payment of fees in advance or other security before recommencing work; and

(d) recover from you in full any costs we incur (including on a solicitor/client basis) in seeking to recover the amounts from you, including our own fees and the fees of any collection agency.

9.4 Information you have provided may be used to assist in the collection of your overdue account and we may obtain from and give to any third-party (including credit agencies) information which will assist us to obtain payment of the outstanding debt.

10 Trust Account

10.1 Haven Legal operates a trust account. All money received by you or on your behalf may be held to your credit in the trust account.

(a) Payments out of the trust account will be made either to you or to others with your authority. Written authorisation from you (and if we are acting for more than one of you, from all of you) will be required when payment is to be made to a third-party. Before making a payment to another account we may require verification of the account details by provision of (for example) a copy of a deposit slip, cheque or bank statement showing the account number, a signed authority from you including the bank account details, or a signed letter from the relevant financial institution providing bank account details.

(b) A full record of our trust account is kept at all times. A statement of trust account transactions detailing funds received and payments made on your behalf will be provided to you periodically and at any time upon your request.

(c) Unless it is not reasonable or practicable to do so, when we hold significant funds for you for more than a short period of time we will place them on call deposit with a bank registered under section 69 of the Reserve Bank of New Zealand Act 1989, subject to clauses 11 and 12 of these terms and you having completed to the bank’s satisfaction any request for information relating to the deposit or certification required by the bank.

10.2 Haven Legal takes a commission on:

(a) interest earned by you from call and term deposits in our trust account; and

(b) dividends and other distributions received by us where Haven Legal is managing or administering your investments (or a part of them).

10.3 In accordance with the Lawyers and Conveyancers Act 2006, monies held in our trust account but which are not placed on call or term deposit will not earn you interest.

11 Verification of Identity

11.1 We are required to collect from you and retain information required to verify your identity under the Anti-Money Laundering and Countering Financing of Terrorism Act 2009 (AML/CFT Act) and the Financial Transactions Reporting Act 1996 (FTR Act). This may be necessary even though we have acted for you before, or even if you are known to a member of staff. We will perform customer due diligence and account monitoring, keep records and report any unusual or suspicious transactions where required by the AML/CFT Act, the FTR Act, FATCA, CRS or any other law.

11.2 We will advise you what information and documents are required for these purposes. These may relate to you, any other relevant person (such as beneficial owners), the source of funds, the transaction and ownership structure and any other relevant matters. Please provide the information and documentation promptly. We may be required to suspend, terminate or refuse to enter into a business relationship or to delay, block or refuse to process a transaction if the required information or documents are not provided.

11.3 You accept that we may use customer due diligence services (including electronic based services from a third party) to verify your identity and conduct other monitoring required under the AML/CFT Act. You authorise us to collect information about you, to hold and use such information and to make any other enquiries we think appropriate to confirm information provided to us about you is true and comply with any other legal obligations we may have.

12 Compliance

12.1 In addition to clause 11 of these terms, we are obliged to comply with all laws, regulations and requirements applicable to us in all jurisdictions in providing our services to you, including, but not limited to, Foreign Account Tax Compliance Act (US) (FATCA) and OECD Common Reporting Standard (CRS).  The FATCA is a US law directed at reducing tax evasion by US taxpayers which has effect in New Zealand. New Zealand has also endorsed the OECD’s CRS which facilitates the exchange of information on financial accounts between countries.

12.2 We may be required by law to obtain information about you (for example, to verify your identity and/or the identity of the persons who own or control you). In addition, our bank is required by law to obtain certain information about you (Bank Information) if you conduct a trust account transaction with us (including in connection with the requirements of FATCA and the CRS). You must provide all such information on request.

12.3 You acknowledge that we may be required by law to disclose information about your details, affairs and particular transactions including where disclosure is required by anti-money laundering and countering of the financing of terrorism rules. If we are required to make such a disclosure, we will only do so to an appropriate person and only to the extent reasonably necessary or required. You consent to us making, and waive whatever right that you may have to be advised that we have made, a disclosure of this nature.

12.4 In addition, you consent to the disclosure of your Bank Information to our bank and to the New Zealand Inland Revenue Department (IRD), and waive whatever rights you might have to be advised that we have made such a disclosure.

12.5 The Land Transfer Act 1952 and related tax legislation require buyers and sellers of residential property to provide certain information (including Tax Statements relating to the property transaction and IRD numbers or their offshore equivalents) as part of the land transfer process. You must provide all such required information to us upon request, and as we cannot provide tax advice notwithstanding any assistance we may provide in good faith it is your responsibility to ensure that the information provided is correct. This information will be provided to Land Information New Zealand (LINZ) and the IRD. Failure to provide this information may mean that a property transaction will be delayed or even cancelled. We will have no liability to you if we cannot conduct or complete a property transaction for you because you have not provided us with the required information to our satisfaction when required.

12.6 Please ensure that you and/or any of the persons described previously are aware of and consent to this. It is important to ensure that all information provided to us is accurate. If the information required is not provided, or considered by us to be potentially inaccurate, misleading, or in contravention of any law, we may terminate or refuse to enter into an engagement.

13 Confidentiality

13.1 We will hold in confidence all information concerning you or your affairs that we acquire during the course of acting for you.  We will not disclose any of this information to any other person except:

(a) to the extent necessary or desirable to enable us to carry out your instructions; or

(b) as expressly or impliedly agreed by you; or

(c) as necessary to protect our interests in respect of any complaint or dispute; or

(d) to the extent required or permitted by law.

13.2 Confidential information concerning you will as far as practicable be made available only to those within our firm who are providing legal services for you.

14 Personal Information and Privacy

14.1 In our dealings with you we will collect and hold personal information about you. We will use that information to carry out our services and to make contact with you about issues we believe may be of interest to you. Provision of personal information is voluntary but if you do not provide full information this may impact on our ability to provide the services.

14.2 You authorise us to disclose, in the normal course of performing the services, such personal information to third-parties for the purpose of providing the services and any other purposes set out in these terms.

14.3 We may disclose your name and address to third-parties such as credit agencies to perform a credit reference or to undertake credit management or collection processes if it is reasonable to do so.

14.4 The information we collect and hold about you will be kept at our offices and/or at secure file storage sites (including electronic file storage sites) elsewhere.  

14.5 If you are an individual, you have the right to access and correct this information. If you require access, we will provide to you on request copies or originals (at our option) of all documents to which you are entitled under the Privacy Act 1993 or any other law. We may charge you our reasonable costs for doing this.

15 Conflicts of Interest

15.1 We comply with our obligations under the Rules and under other laws on conflicts of interest. We can act for another client in relation to a separate matter, even if that client’s interests are adverse to yours. We do not need to inform you or obtain your consent to act in that case.

15.2 We may also act for clients who operate in the same market or whose commercial interests differ. We are entitled to act for those clients, provided we do so in accordance with our obligations under the Rules and under other laws on conflicts of interest, and do not breach our obligations to keep your information confidential.

16 Documents, Records and Information

16.1 Subject to any legal requirement, we retain the files we establish on a matter for a period of 7 years after a matter is completed. We will hold these documents at your risk.

(a) We may keep a record electronically and destroy originals (except where the existence of an original is legally important such as in the case of wills and deeds).

(b) At any time, we may dispose of documents which are duplicates, or which are trivial (such as emails which do not contain substantive information), or documents which belong to us.

(c) We are not obliged to retain documents or copies where you have requested that we provide them to you or to another person and we have done so, although we are entitled to retain copies for our own records if we wish to do so.

16.2 We will provide to you on request copies or originals (at our option) of all documents to which you are entitled under law. We may charge you our reasonable costs for doing this.

16.3 Where we hold documents that belong to a third-party you will need to provide us with that party’s written authority to uplift or obtain a copy of that document.

16.3 We may store your files and documents with a document storage company in which case the documents will be held subject to our agent’s terms and conditions of service. Neither we nor our agent will have any liability to you in relation to the provision of this service. We reserve the right to cease providing this service and return these documents to you at any time.

16.4 Where we store your files electronically, we may use servers that are located outside New Zealand for that purpose. We may also use file sharing sites that are located outside New Zealand to efficiently transfer documents when required.

16.5 If you uplift your files or other documents at any time, we may make copies of them before they are uplifted. You agree to pay the costs of those copies.

17 Duty of Care

17.1 Our duty of care is to you and not to any other person.  We owe no liability to any other person, including for example any directors, shareholders, associated companies, employees or family members unless we expressly agree in writing. We do not accept any responsibility or liability whatsoever to any third parties who may be affected by our performance of the Services or who may rely on any advice we give, except as expressly agreed by us in writing.

17.2 Our advice is not to be referred to in connection with any prospectus, financial statement, or public document without our written consent.

17.3 Our advice is opinion only, based on the facts known to us and on our professional judgement, and is subject to any changes in the law after the date on which the advice is given.  We are not liable for errors in, or omissions from, any information provided by third parties.

17.4 Our advice relates only to each particular matter in respect of which you engage us. Once that matter is at an end, we will not owe you any duty or liability in respect of any related or other matters unless you specifically engage us in respect of those related or other matters.

17.5 Unless otherwise agreed, we may communicate with you and with others by electronic means. We cannot guarantee that these communications will not be lost or affected beyond our reasonable control, and we will not be liable for any damage or loss caused thereby.

18 Limitation of Liability

To the extent permitted by law, our aggregate liability to you (whether in contract, tort, equity or otherwise) in relation to the legal services is NZ$2,000,000 or the amount of three times our fee (excluding disbursements and GST), whichever is the lesser.

19 Lawyers’ Fidelity Fund

19.1 The New Zealand Law Society operates a Fidelity Fund. This may reimburse clients who suffer financial loss due to theft or misappropriation of funds by lawyers. The maximum compensation available from the Fidelity Fund is $100,000. With limited exceptions the Fidelity Fund does not cover losses relating to investments made on the client’s behalf.

20 Complaints

20.1 Client satisfaction is one of our primary objectives. If you have a complaint regarding our services, please raise them as soon as possible with the person to whom they relate. They will respond to your concerns as soon as possible. If you are not satisfied with the way that that person has dealt with your complaint, please raise the matter with Ethan Shin.

20.2 The New Zealand Law Society also maintains a complaints service and you are able to make a complaint to that service at any time. To make a complaint or for more information on this service you should contact the Law Society at 0800 261 801 or refer to its website at www.lawsociety.org.nz. The Law Society’s address is PO Box 5041,Lambton Quay, Wellington 6145.

21 Termination of Engagement

21.1 You may terminate this agreement at any time by providing notice to us.

21.2 We may end our engagement upon reasonable notice to you, and subject to our obligations in the Rules.

21.3 You must pay our fees and disbursements for work done, together with any other charges we have incurred on your behalf to the end of the engagement.

22 Intellectual Property

We own copyright in all documents or work we create in the course of performing the services but grant you a non-exclusive licence to use and copy the documents as you see fit for your own use. However, you may not permit any third-party to copy, adapt or use the documents without our written permission.

23 Governing Law

23.1 These terms of engagement will be governed by and construed in accordance with the laws of New Zealand.

23.2 Any legal action, suit or proceeding, or any other matter arising out of or in connection with these terms or legal serviced provided by us to you, will be submitted to the exclusive jurisdiction of the Courts of New Zealand.