Terms of Engagement For Our Consultancy Services
CINCH HR LIMITED
1. General Terms
1.1 These Terms of Engagement (“Terms”) govern the relationship between CinchHR Limited (“we”, “us”) and you, the client, in respect of our engagement/s for the provision of Human Resources and Employment Relations Consultancy Services to you.
1.2 These Terms replace any terms and arrangements that have previously applied, and they apply to all Consultancy Services that we undertake for you in respect of this engagement, and for any future engagements (whether or not we send you another copy of these Terms), unless we agree on new terms of engagement, or notify you of amended terms from time to time.
1.3 We will treat you as having accepted these Terms if you continue to instruct us after your receipt of these Terms, even if you do not expressly notify us of your acceptance of these Terms.
1.4 Our relationship with you is regulated by New Zealand law and New Zealand courts have exclusive jurisdiction.
2. Our Consultancy Services
2.1 We will provide the Consultancy Services set out in our engagement letter (the “Services”).
2.2 In providing the Services, we will make all reasonable efforts to:
a. Discuss with you your objectives and how these are best achieved;
b. Provide you with information about the work to be done and the way the Services will be provided;
c. Act competently and to an appropriate professional and ethical standard, with efficiency, diligence, and in accordance with your instructions;
d. Protect and promote your interests and act for you free from compromising influences or loyalties;
e. Protect your privacy and ensure appropriate confidentiality;
f. Give you clear information and advice; and
g. Treat you fairly, respectfully and without discrimination.
2.3 We are committed to providing the Services in a timely manner and to meet agreed timeframes and dates; however, any such timeframes and dates will generally be estimates only.
2.4 In order to provide you with the most efficient performance of the Services, we may, in our sole discretion, delegate the performance of the Services (in part or in total) to another suitable Consultant within CinchHR Limited from time to time, provided this is appropriate.
2.5 Our Consultancy Services do not constitute regulated legal services, or other regulated professional services (for example, accounting, tax, or other professional business advice). However, CinchHR Limited is an employer organisation in accordance with the Lawyers and Conveyancers Act 2006, and as such, we are also able to provide you with legal services in relation to employment law matters related to you as an employer, provided that you have a current membership subscription with CinchHR Limited. If you do not have a membership subscription with CinchHR Limited or require specialist legal services outside the area of employment law, we will be able to refer you to third-party legal service providers.
3. Your Obligations and Responsibilities
3.1 You agree to promptly provide us with such documentation, information, and access to staff or other third parties reasonably required for our proper performance of the Services. We will be entitled to rely on the accuracy and completeness of all information provided by you or others on your behalf, without having to verify the information, unless the diligent performance of our Services requires so. Should you subsequently ascertain that information or documentation you have provided us with is incomplete or inaccurate, you will immediately notify us and take all reasonable steps to complete or correct such information or documentation.
3.2 You agree to act in good faith towards us and to fully cooperate with us in relation to all aspects of our engagement and Services.
3.3 You agree to pay the agreed fees and associated costs in accordance with these Terms and associated arrangements.
3.4 You will not assign or transfer your rights or obligations under these Terms to any third party unless we agree in writing.
3.5 You will be solely responsible and liable for the appropriate use of, or reliance on, advice or recommendations provided by us in the performance of the Services.
4.1 We will obtain from you 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.
4.2 We will report to you periodically on the progress of our engagement and we 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.
5. Financial Arrangements
5.1 Consultancy Fees: The basis upon which we will charge our fees is set out in our engagement letter.
a. Where our fees are calculated on an hourly basis, the Consultant’s hourly rate will be detailed in the engagement letter (should there be multiple Consultants with different consultancy rates, these will be detailed in the engagement letter, or subsequently, as the case may be). Consultants’ time is recorded in 15-minute units (i.e., 0.25 of an hour). We may change our Consultants’ hourly rates or units from time to time and we will advise you accordingly.
b. If the engagement letter specifies a fixed fee, we will charge this for the agreed scope of the Services. Any work/service that falls outside the agreed scope will be charged on the basis of an hourly rate in accordance with clause 5.1 a. We will advise you as soon as practicable if it becomes necessary for us to perform work/services outside of the agreed scope and provide you with an estimate of the likely amount of the further costs.
c. If our engagement is covered by a pre-paid retainer (i.e., by way of a membership subscription to Consultancy Services through CinchHR Limited’s software platform), there will be no additional fee for our Services within the purchased allocation of Consultancy Service hours. Any time spent outside the allocation, will either be separately charged and invoiced in accordance with clauses 5.1 a-b, and 5.3-5.9 of these Terms, or, by agreement, be transferred to the next allocation of hours in accordance with your current and ongoing subscription.
5.2 Fee Estimates: As far as practicably possible, we will provide you with an estimate regarding the fees for our Services (which may be a range between a minimum and a maximum amount, or for a particular engagement or task). Equally, you may request an estimate at any time. An estimate is not a quote. Any significant assumptions included in the estimate will be stated and you must immediately inform us if such assumptions are incorrect. We will inform you if we are likely to exceed the fee estimate by any substantial amount.
5.3 Disbursements/Expenses: In providing the agreed Services, we may incur disbursements and/or make payments to third parties on your behalf. You authorise us to incur disbursements and expenses which are reasonably necessary to provide the Services (for example, Post/Courier charges, mileage (at the applicable IRD rates), tolls, parking, taxi/share-ride charges, air travel, accommodation, filing fees, significant photocopying/printing, etc.). You also authorise us to make payments to third parties on your behalf which are reasonably required to undertake the Services (for example, experts’ costs or legal fees). Disbursements and expenses will be charged on to you at the rate charged to us, and they will be included in our invoice to you, shown as ‘disbursements’.
5.4 Goods and Services Tax (‘GST’): Our services will generally attract GST, which will be payable by you on our fees and charges. Unless stated otherwise, our fees and estimates will be exclusive of GST.
5.5 Invoices: We will generally send (interim) invoices to you monthly on the 20th of the month, and on completion of our engagement (for whatever reason). In our sole discretion, we may send invoices more frequently.
5.6 Payment: Unless agreed otherwise in writing, our invoices must be paid in full into our nominated bank account within fourteen (14) calendar days from the date of receipt and in accordance with the payment instructions detailed on the invoice. Unless agreed in writing, you may not set-off any alleged or actual credit or counterclaim against the invoiced amount.
5.7 Overdue Payments: If your payment is overdue, we may:
a. Charge interest on unpaid amounts at the rate of two (2) per cent per month (i.e., 24 per cent per annum); and
b. Stop work on any engagement in respect of which we are providing Services to you; and
c. Require an additional payment of fees or other security before recommencing work.
5.8 Fees and Disbursements in Advance: We may, in our sole discretion, ask you to pre-pay amounts to us, or provide security for expenses. You authorise us to debit against pre-paid amounts and/or to deduct any invoiced fees, expenses, or disbursements from any pre-paid amounts.
5.9 Payments From Third Parties: Should you be reimbursed by a third party (for example, an insurance or the respondent to a claim of yours) for our fees and expenses, and even though our invoice/s may at your request or with your approval be directed to such third party, you remain responsible for payment to us in accordance with these Terms if the third party fails to pay us.
6. Confidentiality and Personal Information
6.1 Confidentiality: We will hold all information concerning you or your affairs that we acquire during our engagement in confidence. We will not use or disclose any such information to any other person, except:
a. To the extent necessary or desirable to enable us to perform the agreed Services; 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.
6.2 Confidential information concerning you that is not already within public knowledge will, as far as reasonably practicable, be made available only to those within CinchHR Limited who are involved in the provision of the Services to you.
6.3 Personal Information and Privacy: During our engagement/s, we may collect, hold, use, and disclose personal information about you. We will do so in accordance with the Privacy Act 2020. Unless authorised otherwise, we will only use your personal information to perform the Services and to contact you about issues we believe may be of interest to you. Whilst the provision of personal information by you is voluntary, if you do not provide information, this may impact on our ability to provide the Services.
6.4 Subject to clause 6.1, 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.
6.5 Should we become aware of a breach of your privacy, we will notify you and take reasonable steps to retrieve and secure the information, and to minimise any loss or harm to you.
6.6 The information we collect about you will be kept at our offices and/or at secure file storage sites (including electronic file storage facilities) elsewhere and be held for as long as the information is needed. If you are an individual, you have the right to access and correct personal information. If you require access, please contact CinchHR Limited’s CEO and Privacy Officer, Kim Rippin, on Kim@cinchhr.co.nz.
6.7 Receipt of Information and Product Offers: You consent that CinchHR Limited and/or its associated entities or authorised agents may provide you from time to time with other information that may be relevant to you, such as newsletters and product information/offers. You may revoke your consent at any time.
6.8 Verification of Identity: Subject to the application of the Anti-Money Laundering and Countering Financing of Terrorism Act 2009, we may have to collect from you and retain information required to verify your identity (for example, your passport or driver’s licence). We may perform such other customer verification checks as to your identity and checks as to the source of any funds associated with any transaction to which the Services may relate as we consider to be required by law.
7. Documents, Records, and Information
7.1 We will retain records of all important documents which we receive or create on your behalf on the following basis:
a. We may keep records electronically and destroy originals, except where the existence of an original is legally required.
b. At any time, we may dispose of documents that are duplicates or trivial (e.g., emails that do not contain substantive information), or documents that belong to us.
c. We are not obliged to retain documents 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.
7.2 We will provide to you on request copies or originals (at our option) of all documents to which you are entitled in accordance with the Privacy Act 2020 (or any other applicable law). We may, in our sole discretion, charge you reasonable costs for doing this.
7.3 Where we hold documents that belong to a third party, you must provide us with that party’s written authority to uplift or obtain such documents (or copies therefor).
7.4 Unless you instruct us in writing otherwise, you hereby authorise us to destroy (or delete in the case of electronic records) all files and documents in respect of the Services seven (7) years after the ending of our engagement, or earlier if we have converted those files and documents to electronic format. We may, in our sole discretion, retain documents for longer than seven (7) years.
7.5 We may, at our cost, return documents (either in hard or electronic form) to you rather than retain them.
8. Intellectual Property
8.1 We own and retain the copyright and all other intellectual property rights in all documents and work we create while performing the Services (in each case whether registered or unregistered in any part of the world). However, by engaging us in accordance with these Terms, we grant you a non-exclusive, non-transferable, revocable, and limited licence to access and use the materials and information provided by us to such extent as is necessary to enable you to make reasonable use of our Services. However, you may not permit any third party to copy, adapt or use the documents without our written permission.
9. Conflicts of Interest
9.1 We take reasonable steps to protect your interests and to provide the agreed Services free from compromising influences or loyalties. This may result in a situation where we may have a conflict of interest.
9.2 We have procedures in place to identify and respond to conflicts of interest. Should a conflict of interest arise or become reasonably foreseeable, we will advise you of this as soon as possible and discuss with you how the conflict may be resolved. This may result in us not being able to provide the Services for you, and we may have to terminate our engagement in such case.
10. Indemnity, Liability and Limitations
10.1 Indemnity: To the maximum extent permitted by law, you agree to indemnify and hold harmless CinchHR Limited against all losses, claims, costs, expenses, actions, demands, damages, liabilities or any other in proceedings, whatsoever incurred by us in respect of any claim by a third party arising from or connected to any breach by you of your obligations under these Terms, and/or your use of our HR Consultancy Services.
10.2 Professional Indemnity Insurance: CinchHR Limited holds professional indemnity insurance for its Consultants via NZI (A Division of IAG NZ Ltd), with the limit of indemnity being $1.5 million for any one claim and in aggregate for all claims during the policy period (the aggregate automatically reinstates once eroded).
10.3 Limitations on our Obligations and Liability:
a. If our ability to provide the agreed Services is prevented, delayed, or otherwise adversely affected by any act/omission by you (including but not limited to the provision of untimely, inaccurate, or incomplete information), then we will not be liable for any costs, charges, damages, or losses sustained or incurred by you that arise directly or indirectly from such prevention, delay, or act/omission.
b. We are not liable for errors in, or omissions from, any information provided by third parties. We will not be liable for any damage or loss caused by errors or omissions in information obtained from third parties.
c. We will not be liable to any person or agency (for example, any directors, shareholders, associated companies, employees, or family members) other than you, the client, unless we expressly agree to this in writing. We do not accept any responsibility or liability 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.
d. As far as we provide advice as part of our engagement, our advice is opinion only, based on the facts known to us and on our professional judgement, and it is subject to any changes in the law, etc. after the date on which the advice is given.
e. We cannot guarantee that electronic communications from/to us will not be lost or affected for some reason beyond our control, and we will not be liable for any damage or loss caused thereby.
f. To the extent allowed by law, our aggregate liability to you (whether in contract, tort, equity or otherwise) in connection with our Services is limited to the amount available to be payable under the Professional Indemnity Insurance held by us.
g. Neither of us will be in breach of our contractual obligations nor will either of us incur any liability to the other if we or you are unable to comply with the Agreement because of any cause beyond our or your reasonable control. In the event of any such occurrence affecting one of us, that one will be obliged as soon as reasonably practicable to notify the other, who will have the option of suspending or terminating our engagement.
11.1 You may terminate our engagement at any time and with immediate effect by giving written notice.
11.2 We may terminate our engagement with immediate effect, in the event of:
a. A conflict of interest;
b. Non-payment of our fees;
c. Repeated failure to provide requested information/documentation, or instructions;
d. Breach of other obligations under these Terms (which, in the case of a breach capable of being remedied, has not been remedied within fourteen (14) calendar days of receipt of notification by us); or
e. Any other circumstances that we consider warrant the immediate termination of our engagement.
11.3 If our engagement is terminated (for whatever reason), you must pay us all fees, disbursements and expenses incurred up to the date of termination. Should we incur additional time or expenses following the termination of our engagement, we will advise you accordingly and charge you for such time and expenses in accordance with clause 5 of these Terms (on the basis of the applicable hourly rate).
12. Feedback and Complaints
12.1 Client satisfaction is paramount to us, and we appreciate and respect feedback from our clients. Please do not hesitate to comment on any aspect of the service provided by us - ‘good or bad’. You are invited to directly contact the Consultant who has or had day-to-day responsibility for the engagement, or alternatively you may contact CinchHR Limited’s CEO (see below for contact details).
12.2 Should you wish to make a complaint regarding any aspect of our Services, we maintain a procedure for handling complaints to ensure a prompt and fair resolution.
a. In the first instance, you may refer your complaint to the Consultant who has or had day-to-day responsibility for your engagement.
b. If you do not wish to refer your complaint to that Consultant, or you are not satisfied with the Consultant’s response to your complaint, you may refer your complaint to CinchHR Limited’s CEO, Kim Rippin, at Kim@cinchhr.co.nz or on +64 21 303 012, or by letter to CinchHR Limited, Attention: Kim Rippin, Level 1, 14 Jervois Street, Ponsonby, Auckland 1011.