1. How these Terms Apply. These Terms of Engagement (Terms) are to be read together with the description of the specific Services and any specific exclusions listed in our services proposal, any online client onboarding software, any invoice payment terms on your Invoice, and any special terms we may state in our Services Proposal.
2. Acceptance of these Terms. You are taken to have exclusively accepted and are immediately bound, jointly and severally (where there is more than one client), by these terms of engagement when any one of the following occurs:
3. Our Contract. Your acceptance of the Services Proposal and these general Terms together constitute our agreement with you (this Contract). This Contract governs the agreement between MONDO ADVISORY LIMITED (Company Number 8632932) (us) and you, the named client/s in the Services Proposal, in respect of the Services.
4. The following words and expressions shall have the meanings set out below:
5. Our Services. Your Services Proposal shall detail the specific services you have engaged us to perform. These include, but are not limited to, the following:
6. Services Proposals are Indicative Only. The Scope of Services outlined in a services proposal is an indication of the Services required to complete your project or meet your requirements. This scope is subject to change as your requirements change.
7. Scope Variations. We will confirm any changes to your Services in writing via email. These terms shall apply to any scope increases, alterations or changes.
8. Project Services. This Contract is for the duration of the Services, any project or one-off engagement until the agreed completion date or until otherwise terminated by either Party in accordance with these Terms.
9. Ongoing Services. This Contract is for the duration of any ongoing Services and shall continue for the period that the Client continues to accept the performance of the Services.
10. Where you have selected to engage with us for ongoing services (Fixed Fee Service Plan), the following terms shall apply:
11. Standards. The Advisor must supply the Services with due care, skill and diligence and in accordance with Good Industry Practice as would be expected from a leading supplier in the same industry.
12. Timeliness. The Services must be performed on time except where a delay is caused by the Client.
13. Limitations and Exclusions. The following shall apply to the Services (as applicable to the relevant service):
14. Timely and Accurate Information. The Client must ensure that it provides information required by the Advisor in a timely and accurate manner.
15. Review and Approval of Tax Returns or Reports. The Client shall be required to review and approve all and any final returns or reports for reasonableness and correctness, and will need to understand the importance and risks of signing tax returns or other statutory compliance engagements as being true and correct statutory records.
16. Decisions. The Client must make decisions and give approvals reasonably required by the Advisor to enable the delivery of the Services, within reasonable time.
17. Scope Changes. The Client must notify the Advisor of any scope changes to the Services and/or change to the Client requirements as soon as practicably reasonable.
18. Fee. In consideration for its provision of the Services, the Client will pay to the Advisor the fees set out in the applicable Services Proposal.
19. Advance Fees. The Advisor may request fees in advance on account prior to commencement of Services.
20. Regional Business Partner Contributions. The Advisor shall invoice the regional business partner network (RBP) for any portion of the fees eligible for capability or grant funding. The Client acknowledges that it shall be liable for the balance of all fees, costs and expenses that are not eligible for RBP funding.
21. Disbursements. The Client will reimburse the Advisor for all Disbursements reasonably incurred by the Advisor in performing the Services.
22. Invoice Frequency. The Advisor shall invoice the Client at the agreed frequency, this being one of the following:
23. Time and Method for Payment. All amounts specified in an Invoice will require payment on or before the specified due date (Amounts Owing). We will issue Invoices to you by email. You may pay by any of the methods specified on the Invoice except where we specify a recurring payment method for Fixed Fee Service Plans.
24. No Set Off or Deduction Payment of Amounts Owing. Amounts Owing which are due and payable must be made without set-off or deduction of any kind. You also agree that you will not be entitled to withhold payment in respect of any undisputed amount.
25. If You Dispute the Amount Owing. If you receive an Invoice and you consider you owe us a lesser amount, you must inform us within three (3) Business Days of receiving our Invoice. If you have not within this timeframe, we are entitled to treat any amount stated in our Invoice as an Amount Owing and it remains immediately due and payable. If you do respond and we do not agree, we reserve our rights to use the Dispute Resolution procedures set out in these Terms.
26. Non-Payment of Amounts Owing. If you do not pay an Amount Owing by the due date and we have not commenced any invoice dispute resolution, this amount becomes an Overdue Amount Owing. After a period of five (5) Business Days of issuance of our Invoice, we shall have the right to apply late payment interest at our published rate as at the date of default or 5% (whichever is higher). This shall be calculated daily and compound monthly at that rate if we elect to do this. This applies before and after any judgment (if applicable).
27. Debt Collection or Recovery Costs. If an Overdue Amount Owing remains unpaid for fourteen (14) Business Days or more from the Due Date, we reserve our rights to engage the services of a debt collection agency or solicitor to take proceedings to recover the Overdue Amount Owing. You will be liable for the costs incurred by us in the collection of any unpaid amounts including but not limited to legal costs, debt collection fees and internal administration fees.
28. Administration Fees. In the event we are obliged to perform any additional actions to recover any monies owed by you, we reserve the right to apply reasonable administrative fees for phone calls, texts, emails, and in-person visits to follow up and recover any Overdue Amount Owing in addition to any costs or expenses.
29. Suspension of Services for Overdue Amounts Owing. If there is an Overdue Amount Owing and such default continues for five (5) Business Days or such other timeframe advised in a Services Proposal from the Due Date, we shall be entitled to suspend the Services without notice until the arrears have been cleared.
30. Termination of Services. Without prejudice to a Party's other remedies at law, each Party has the right to terminate the Services by giving the other ten (10) Business Days written notice. This includes any part the Services that remain unfulfilled at the notification date. The terms relating to cancellation fees and/or payment for amounts owing up to the termination date shall apply.
31. Termination for Breach or Insolvency. Neither Party shall be liable to the other Party for any delay, loss or damage suffered by it due to the exercise of its rights under this clause, if one or more of the circumstances listed in the following two clauses applies.
32. Breach of these Terms. The Services may be terminated by either Party where the other Party is in breach of this Contract and such breach is not remediable or is remediable, but continues and remains unremedied after the expiry of the notice period set out in a default notice, which must be given by the non-defaulting party to the defaulting party, and provide the defaulting party with a reasonable time period to remedy the breach.
33. Insolvency. The other Party becomes insolvent or bankrupt, convenes a meeting with its creditors or makes an assignment for the benefit of its creditors or a receiver, manager, or liquidator (provisional or otherwise) or similar person is appointed in respect of the Advisor, its business or its assets.
34. Amounts Owing up to Termination. The Client must pay the fees up to the date of termination provided that the Client may recover from the Advisor or set off against sums due to the Advisor, any Charges paid in advance for Services or Deliverables that have not been provided.
35. Accrued Rights. The termination or expiry of this Contract does not affect any rights of a Party which arose prior to the applicable termination date.
36. Advisor Liability Cap. To the extent permitted by law, the aggregate liability of the Advisor to the Client, whether in contract, tort (including negligence) or otherwise, will be limited to $500.
37. No Liability for Consequential Loss. The Advisor shall not be liable for any indirect, consequential, special or economic loss, cost liability, damage or expenses howsoever arising.
38. Reduction of Liability. The Advisor's liability is reduced proportionately to the extent that any such loss or damage was caused or contributed to by any negligent act, omission or default of the Client or the employees or agents of the Client.
39. Ownership of Pre-existing Intellectual Property Rights. Pre-existing Intellectual Property Rights remain the property of their owner. Nothing in or done in connection with this Contract will affect the ownership of any Intellectual Property Rights that arise, or have arisen, independently of the activities of either party in connection with this Contract.
40. New Intellectual Property Rights in Consulting Materials. Where the Client has commissioned Consulting Materials to be solely created for the Client's internal use, the clause below shall apply, providing always that the Advisor shall retain ownership of all New Intellectual Property Rights in any framework, template, methodology or process associated with such Consulting Materials.
41. New Intellectual Property Rights in Deliverables. All and any New Intellectual Property Rights created in the Deliverables become the property of the Client when they are created, and the Advisor agrees to do all things necessary to give effect to this clause.
42. Licence. The Client may use, copy and adapt any materials created as part of any Deliverables and/or the Consulting Materials for any purpose required by it and the Advisor grants to the Client a perpetual, exclusive and royalty-free licence to use, for its organisational purposes, all Intellectual Property Rights in any Deliverables and/or Consulting Materials that are not owned by the Client to receive the full benefit of the Services and Deliverables, and use, copy or modify the Consulting Materials.
43. Training and Coaching Materials. You are expressly prohibited from sharing the Consulting Materials or our training and coaching information content, in any way that competes with our business.
44. Advisor Warranties. The Advisor warrants that it is legally entitled to grant the licence in the clause above, and the Client's use of anything provided by the Advisor and incorporated in the Services and Deliverables, for the purposes communicated to, or that are or ought to be known by, the Advisor, will not infringe the rights, including Intellectual Property Rights, of any third party.
45. Use of Confidential Information. Each party must keep confidential all Confidential Information, however nothing in these terms prevents a party from disclosing Confidential Information:
46. Disclosure of Confidential Information. We may disclose Confidential Information to a Related Company and their Personnel on a 'need to know' basis, provided that person is under a duty to keep the Confidential Information confidential in accordance with this Contract.
47. Software System Access and Confidentiality. Where the Advisor shall require access to an online software system to retrieve data for the performance of the Services, all such information accessed, viewed, downloaded or stored shall be treated as Confidential Information of the Client and is subject to these Terms.
48. Consulting Materials are Confidential Information of the Client. Any Consulting Materials not intended for public consumption or display that are prepared for the purposes of this Contract will be deemed to be confidential information of the Client, and not the Advisor.
49. Security. Each Party will put in place and maintain adequate security measures to safeguard the other Party's Confidential Information from unauthorised access or use by third parties. Each Party shall notify the other Party if it becomes aware of any suspected or actual unauthorised use, copying or disclosure of the other Party's Confidential Information, and comply with any reasonable direction of the other Party in relation to any suspected or actual breach of these obligations.
50. Obligation to Inform Personnel. Each Party will ensure that its Personnel are aware of the confidentiality obligations in this Contract, and do not use or disclose any of the other Party's Confidential Information except as allowed by this Contract.
51. Collection of Personal Information. You authorise us and our agents to collect, use, retain and disclose "personal information" (as defined in Part 1, section 7 of the Privacy Act 2020) about you and your personnel that you or they provide to us for the following purposes:
The clause above is authority and consent from you in accordance with sections in Part 3, Part 7, subpart 1 and all other relevant sections in the Privacy Act 2020.
52. Access to Personal Information. You (if you are an individual) have the right under sections in Part 4, subpart 1 and Part 4, subpart 2 of the Privacy Act 2020 to access, and request correction of, any of your personal information held by us, and if you provide any personal information about a third party (including your Personnel) to us, you confirm that you are authorised to do so by the relevant individual and you have informed the relevant individual that they have the right to contact us to access and, if applicable, request correction of any personal information that we hold about them.
53. Protection of Personal Information. Where the Advisor has access to Personal Information under or in connection with this Contract, the Advisor must:
54. Privacy Breaches. If the Advisor becomes aware of any Privacy Breach in relation to this Contract it will notify the Contract Representative as soon as possible and take all reasonable steps to identify the person or persons affected, undertake any investigation required by the Client, stop and/or mitigate the impact of any Privacy Breach and prevent its reoccurrence. The Advisor shall not notify any person of the Privacy Breach without prior written approval of the Client.
55. Details of the Dispute must be Supplied. If either Party considers that a dispute has arisen in relation to any matter governed by this Contract, that party must give the other party written notice outlining the basis of the dispute (Dispute Notice).
56. Dispute must be Discussed. The Parties must then meet to resolve, in which case both Parties will promptly attempt to resolve the dispute by consultation at the lowest practicable level of escalation.
57. Escalation of Dispute. If the dispute is not resolved by discussion, meeting and/or other informal means within ten (10) Business Days of the date of the Dispute Notice the Parties may agree to submit the dispute to mediation.
58. Mediation. If a Dispute is referred to mediation, the mediation will be conducted by a single mediator agreed by the Parties or, failing agreement, on the terms of the Resolution Institute Mediation Rules, at a fee to be agreed by the Parties or if they cannot agree, at a fee determined by the Resolution Institute.
59. Obligations Continue. If there is a Dispute, each Party will continue to perform its obligations under this Contract as far as practical given the nature of the dispute.
60. Taking court action. Each Party agrees not to start any court action in relation to a dispute until it has complied with the process described in this clause, unless that Party requires urgent relief from a court.
61. Interlocutory Relief. Nothing in these terms shall affect either party's right to seek urgent interlocutory relief.
62. Costs and Expenses. Each Party will pay its own costs of mediation or alternative dispute resolution under this clause.
63. Requirements. All notices must be in writing and delivered by hand or sent by post, courier or email to the recipient Party's address for notices.
64. Receipt of Notices. A notice will be considered to have been received when delivered by hand or courier, on the date it is delivered; if sent by post within New Zealand, on the 5th Business Day after it was sent; if sent by post internationally, on the 9th Business Day after it was sent; or if sent by email, at the time the email enters the recipient's information system and is not returned undelivered or as an error — but a notice received after 5pm on a Business Day, or on a day that is not a Business Day, will be considered received on the next Business Day.
65. Variations. A variation must be agreed by both Parties and recorded in writing and signed by both Parties, or through an exchange of emails, where the signatories or authors have delegated authority to approve the variation.
66. In this Contract, unless the context requires otherwise: a reference to any monetary amount is to New Zealand currency; a reference to time is to New Zealand time; a reference to "includes" is to "includes without limitation"; a reference to a Party includes that Party's personal representatives, successors and permitted assigns; a reference to a person includes a corporation sole and a body of persons, whether corporate or unincorporated; a reference to a document, statute or regulation includes a reference to that document, statute or regulation as amended or replaced from time to time; and headings will not be used in the interpretation of this Contract.
67. No misleading statements. The Advisor warrants that it has not made any misleading or deceptive statements or omissions influencing the Client's entry into this Contract. A breach of this warranty will be deemed a material breach of this Contract.
68. Consumer Guarantees Act. The Client is acquiring the services for the purposes of a business, and the provisions of the Consumer Guarantees Act 1993 are excluded accordingly.
69. Amendments Must be In Writing. Amendments to this Contract will not be effective unless they are in writing and are signed by each Party.
70. Independent Contractor. Nothing in this Contract constitutes a legal relationship between the Parties of partnership, joint venture, agency, or employment.
71. No representing. Neither Party has authority to bind or represent the other Party in any way except as authorised via any agency approvals (including but not limited to Inland Revenue Department).
72. Transfer of rights or obligations. The Advisor must not transfer any of its rights or obligations under this Contract without the Client's prior written approval.
73. Severability. If and to the extent any provision or part of a provision is illegal or unenforceable, such provision or part of a provision will be severed from this Contract and will not affect the continued operation of the remaining provisions of this Contract.
74. Clauses that remain in force. The clauses that by their nature should remain in force on expiry or termination of this Contract are all clauses in the following sections: Dispute Resolution, Suspension and Termination of Services, Confidential Information, Notices, General, and all Definitions.
75. Entire Agreement. This Contract sets out the entire agreement between the Parties. It replaces any previous communications, negotiations, arrangements or agreements that the Parties had with each other relating to the Services before this Contract was signed, whether they were oral or in writing.
76. Waiver. If a Party does not immediately enforce its rights under this Contract, that does not mean that the other Party is released or excused from any obligation to perform at the time or in the future, and does not prevent that Party from exercising its rights later.
77. Electronic Acceptance. The parties agree that any legal requirement may be met by using electronic means in accordance with the Contract and Commercial Law Act 2017. In this clause the term "legal requirement" has the meaning given to it by section 219(2) of the Contract and Commercial Law Act 2017.
78. Signing Not Required. It is not necessary for this Contract to be signed unless we insist on it. The Client is bound by these Terms if it continues to act in a way that is consistent with the arrangement and discussions held with the Advisor in relation to the Services, and/or the Advisor has incurred time and expense to commence any part of the Services.
79. Governing Law. This Contract shall be governed by the laws of New Zealand and the Parties irrevocably submit to the exclusive jurisdiction of the courts of New Zealand.
