Terms and Conditions of Business
Appendix 1 – June 2024
1. Introduction
1.1. These terms and conditions of business (Terms), together with our Engagement Letter, comprise our Agreement and apply to all work we carry out for you, unless we agree otherwise in writing.
1.2. The services we have agreed to provide to you are described in the Engagement Letter.
1.3. If there’s any inconsistency between these Terms and the Engagement Letter, the Engagement Letter shall prevail to the extent of that inconsistency.
1.4. The Agreement contains the entire understanding between you and us in relation to the delivery of our services and supersedes any previous agreements, understandings, or representations.
1.5. You can accept the Agreement by signing a copy of the Engagement Letter where indicated and returning it to us, or if there are delays in signing the Engagement Letter, by continuing to instruct us in relation to our services.
2. Our Advice and Services
2.1. You agree not to:
2.1.1. Use our services or advice other than for the purposes for which they were sought.
2.1.2. Disclose to any other person any advice or opinion we give to you.
2.2. Unless otherwise stated in the Engagement Letter, any timeframe for the provision of the services is indicative only.
2.3. Our duties are limited to you. They do not extend to any associated persons, such as shareholders, related companies, directors, or family members.
3. Your Responsibilities
3.1. You agree to provide us promptly with any information or assistance that we reasonably require to perform the agreed services.
3.2. We are entitled to assume the accuracy and completeness of any information you give us or that anyone else gives us on your behalf.
3.3. You must notify us promptly if any information given to us becomes incorrect or misleading. You must take all reasonable steps to correct any communication or document that refers to or is based on such information.
4. Conflicts of Interest
4.1. We have procedures in place to identify and respond to conflicts of interest. If a potential or actual conflict of interest arises, we will advise you in writing and discuss an appropriate solution.
5. Payment
5.1. Our fees are set out in the Engagement Letter or in a separate fees letter.
5.2. In addition to our service fees, we may incur additional costs or make payments to third parties on your behalf. These disbursement costs will be charged separately from our fees and office expenses and will be itemized in our invoice.
5.3. You agree to pay our fees and other charges within 21 days following receipt of our invoice. All fees and charges are exclusive of GST.
5.4. If any amount you owe us is more than 30 days overdue, we may:
5.4.1. Charge interest at the rate of 5% per annum above the 90-day bank bill rate (calculated daily) on any outstanding amount until payment is made; and/or
5.4.2. Suspend our services.
5.5. You agree to cover all costs (including our legal costs and expenses on a solicitor/own client basis) incurred by us in recovering any outstanding amount.
5.6. If we are required (by subpoena or otherwise) to produce documents or participate in any judicial or administrative proceedings related to our work for you, you will reimburse our costs at our standard hourly rate and cover reasonable legal costs incurred.
6. Confidentiality
6.1. We will protect and hold in strict confidence all confidential information that we create or acquire during the course of our engagement.
6.2. We will not disclose your confidential information to any other person unless:
6.2.1. You instruct us to do so;
6.2.2. We are making a complaint to the Immigration Advisers Authority relating to another advisor or reporting an alleged offence under the Immigration Advisors Licensing Act 2007;
6.2.3. We are required by law or a relevant regulatory authority to do so; or
6.2.4. Such disclosure is made for the purpose of complying with our quality assurance and conduct or risk management processes, including independence and conflict checks.
6.3. A copy of our Privacy Policy is available upon request. The Privacy Policy sets out how your personal information can be used by us and your rights in respect of that personal information.
6.4. You agree to hold in strict confidence any confidential or proprietary information belonging to us.
7. Intellectual Property
7.1. All ideas, forms, concepts, technical information, trade secrets, know-how, and any other information and intellectual property whatsoever owned or used by us in connection with the provision of our services (our Intellectual Property) remain our exclusive property. You will not, and will not permit anyone else to, use or copy our Intellectual Property unless we approve in writing. You will promptly notify us of any infringement of our Intellectual Property.
8. Non-Solicitation
8.1. You shall not, directly or indirectly, solicit the employment of any of our employees as the case may be involved in performing the services during the Term of our engagement or for a period of three months following termination of the Agreement without our prior written consent. This prohibition shall not prevent you, at any time, from running recruitment advertising campaigns or from offering employment to any of our employees as the case may be who may respond to any such campaign.
Appendix 1
9. Electronic Services and Communications
9.1. While we will take every reasonable precaution to ensure communications and electronic services provided by third parties remain secure and accurate, you acknowledge that electronic services and communications can be subject to interference, interception, or corruption. Therefore, we cannot represent or warrant that our electronic services or communications will always be accurate, complete, confidential, and secure.
9.2. We are not responsible for the content or privacy practices associated with our service providers or third-party collaboration tools (including, but not limited to, Microsoft Cloud or Dropbox).
10. Your Documents
10.1. We maintain a full electronic file for each client for a period of seven years from closing the file. Those records are available for inspection on request by the Immigration Advisors Authority.
10.2. We will return all passports and other personal documents to the client or visa applicant without delay and in a secure manner as soon as they are no longer needed.
11. Guarantees/Warranties
11.1. If you have entered into these Terms for business purposes and/or in trade, you acknowledge and agree that the provisions of the Consumer Guarantees Act 1993 are expressly excluded and that it is fair and reasonable to agree to such exclusion.
11.2. All warranties, guarantees, or conditions, express or implied (including any implied warranties under the Contract and Commercial Law Act 2017) that may be excluded by any law of New Zealand or any other country are excluded to the maximum extent permitted by that applicable law.
11.3. The parties acknowledge that under New Zealand consumer law (NZCL), consumers have certain rights which cannot be excluded, including guarantees as to reasonable care and skill, fit for their particular purpose, and completion within a reasonable timeframe. Nothing in the Agreement will be read or applied to exclude, restrict, or modify or have the effect of excluding, restricting, or modifying any condition, confirmation, warranty, guarantee, right, or remedy implied by law (including NZCL) and which by law cannot be excluded, restricted, or modified.
12. Limitation of Our Liability to You
12.1. To the maximum extent permitted by law, our total maximum liability to you, whether in contract, tort (including negligence) or otherwise, shall be limited to three times the amount of the professional fees you have paid to us for performing the services in relation to the relevant visa application or applications under the Agreement.
12.2. You agree to release us from all claims arising out of all claims in connection with our services to the extent that our liability to you would otherwise exceed this amount.
12.3. We will not be liable for any physical or financial injury, loss or damage, or consequential loss or damage, of any kind, including any loss of profits arising out of any defect in the services we provide, or arising out of our negligence, or in any way whatsoever, to the maximum extent permitted by law.
13. Your Indemnity to Us
13.1. The indemnity in this clause 13 applies to the maximum extent permitted by law and for the benefit of our business, its staff, and contractors.
13.2. You agree to irrevocably indemnify us and will hold us harmless from and against all loss, costs, damages, expenses (including all legal costs and expenses incurred on a solicitor/own client basis) that we incur and all claims, demands, and other proceedings brought by any person:
13.2.1. In relation to any claim against us arising from or connected with any breach of your obligation to us and/or;
13.2.2. By relying on any information provided to us by you or on your behalf and which is false, misleading, incomplete, or breaches any other party’s intellectual property, confidentiality, or privacy rights.
14. Circumstances Beyond Our Control
14.1. For the purposes of this clause 14, Force Majeure Event means any event or circumstance (whether arising from natural causes, human agency, or otherwise) that is beyond the reasonable control of the parties, including strikes, lockouts, or other labour disputes, riot, civil commotion, fire, flood, drought, pandemic, epidemic, loss or delay at sea, breakdown, or war (whether declared or not).
14.2. Notwithstanding any other provision of these Terms, non-performance by us of any of our obligations under these Terms will be excused, without liability for non-performance, during the time and to the extent that performance is prevented, wholly or substantially, by a Force Majeure Event either affecting us or affecting you to such an extent that we are unable to perform our relevant obligations. Performance of any obligation affected by a Force Majeure Event will be resumed as soon as reasonably possible after the termination or abatement of the Force Majeure Event.
14.3. We will promptly advise you in writing, specifying the cause and extent of our inability to perform any of our obligations and the likely duration of such non-performance.
15. Addressing Your Complaints
15.1. We always welcome your feedback on our services. If you have a complaint or would like to discuss how we can improve our services, please contact the person who has overall responsibility for the matter. This person will be identified in the Engagement Letter. We are committed to investigating and resolving any concerns or complaints you may have as soon as possible. In some cases, it may be necessary for us to suspend work until the dispute is resolved.
15.2. Any complaint must be in writing and specify the grounds for the complaint.
15.3. If you are not happy with our response to your complaint, and your complaint is eligible under the Immigration Advisors Licensing Act 2007, you may send your complaint to the Registrar of Immigration Advisors at the Immigration Advisers Authority.
16. Resolving Disputes
16.1. If any dispute, questions, or difference arises in connection with the services or these Terms (Dispute), then the following will apply:
16.1.1. Either party may, by written notice (Dispute Notice), require the other party to meet and attempt to resolve the Dispute;
16.1.2. The Dispute Notice will state the nature and subject matter of the Dispute and set a time and date (not to be later than five Business Days from the date of the Dispute Notice) for the parties to meet (whether by telephone, videoconference, or physical meeting) to attempt to resolve the Dispute; and
16.1.3. The parties will use all reasonable endeavours to resolve the Dispute.
16.2. If the Dispute remains unresolved after the expiry of ten (10) Business Days from the date of the original Dispute Notice (Negotiation Due Date), any party may refer the Dispute to the mediation of one mediator. Failing agreement as to an appropriate mediator within three Business Days of the Negotiation Due Date, the mediator will be appointed at the request of any party by the chairperson or any other similar office holder for the time being of the New Zealand chapter of the Resolution Institute, or the nominee of such chairperson or other office holder. The guidelines which will govern the mediation will be set by the parties. Failing agreement within three Business Days after the date of appointment of the mediator, any party may request the mediator to set the guidelines (whether or not in conjunction with that party) which will govern the mediation.
16.3. If the Dispute is not resolved within ten (10) Business Days of the date of commencement of the mediation, any party may:
16.3.1. Terminate the mediation by giving written notice to the other party; and
16.3.2. Commence court or other proceedings in respect of the Dispute.
16.4. Clauses 16.1 and 16.2 do not affect either party’s right to seek urgent interlocutory and/or injunctive relief.
17. Termination
17.1. This Agreement automatically terminates on the expiry of the Term as recorded in the Engagement Letter.
17.2. Either party may terminate the Agreement immediately in whole or in part before the expiry of the Term by written notice to the other if:
17.2.1. The other commits a material breach of a provision of the Agreement and does not remedy that material breach within 14 days of receiving the written notice requesting that it be remedied; or
17.2.2. The other becomes insolvent.
17.3. We may terminate the Agreement immediately by giving you written notice if:
17.3.1. We determine on reasonable grounds that we cannot continue to act for the client;
17.3.2. We become aware that false or misleading documentation has been provided to, or that relevant information has been concealed from, the decision maker in regard to any immigration matter that we are representing, and you do not consent to take action to remedy the situation;
17.3.3. In our reasonable opinion, the continued provision of our services would:
17.3.3.1. Breach any relevant law, rule, regulation, or professional standard;
17.3.3.2. Bring our reputation into disrepute;
17.3.3.3. Prejudice our ability to comply with any applicable independence requirement;
17.3.3.4. Expose individuals providing our services to unreasonable physical or personal risk; or
17.3.3.5. Our services have been suspended for more than 10 days due to non-payment of our fees or charges or a dispute.
17.4. If the Agreement is terminated, you must pay all fees due up to the date of termination as well as all charges incurred up to that date.
17.5. The provision of these Terms which expressly or by implication are intended to survive its termination or expiry, including clauses 6, 7, 12, 13, and 17, will survive and continue to bind both parties.
18. Health and Safety
18.1. Both parties agree to comply with the obligations under the Health and Safety at Work Act 2015 and any applicable regulations.
19. General
19.1. We may use and disclose personal information, including to persons located outside New Zealand, as set out in our privacy statement, which can be found here.
19.2. The Agreement is governed by the laws of New Zealand, and each party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts of New Zealand.
19.3. The Agreement does not affect any statutory right you may have, irrespective of any terms of your Agreement with us.
19.4. No statement or representation that we have made to you that is not recorded in the Agreement shall form part of the contract between us.
19.5. Our failure to insist upon strict performance of any of these Terms will not be deemed to be a waiver of our rights under these Terms or a waiver of any subsequent breach by you of any of these Terms.