Terms of Engagement
Thank you for selecting Sinclair Black to represent you. We are a specialist entertainment and media law firm, and have endeavoured to tailor our services and costs to the unique needs of this industry. These Terms of Engagement (“Terms”) apply in respect of all work carried out by us for you, except to the extent that we otherwise agree with you in writing. These Terms apply to any current engagement and also to any future engagement, whether or not we send you another copy of them.
1.1 We provide a range of legal services including but not limited to contract, commercial and copyright advice; drafting and negotiation of legal agreements; and dispute resolution. More detail on our areas of expertise can be found on our website – www.sinclairblack.co.nz.
1.2 The services we are engaged to provide for you will be as we outline in writing to you, along with any further instructions that you provide to us in writing (or that we record in writing).
1.3 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 we undertake. You may request a progress report at any time.
2.1 At the outset of our communication we will establish your legal needs and see if our services are suitable for you. If you are a new client, we usually do not charge for that part of our initial meeting or communication. Once a mutual decision is made that we represent you, then the following usually applies:
If your initial instructions relate to one matter or transaction, we will endeavour to give an estimate of the cost (which may be a range between a minimum and a maximum amount or for a particular task or step). An estimate is not a quote. Any significant assumptions included in the estimate will be stated and you must tell us if those assumptions are wrong or change. We will inform you if we are likely to exceed the estimate by any substantial amount. Unless specified, an estimate excludes GST, disbursements and expenses.
If you require us to generate standard or industry type contracts, we can usually give you an idea of the standard fees for that type of document.
If we specify a fixed fee, we will charge this for the agreed scope of our services. We will advise you as soon as reasonably practicable if it becomes necessary for us to provide services outside the agreed scope and, if requested, give you an estimate of the likely amount of the further costs.
Where our fees are calculated on an hourly basis, our lawyers’ hourly rates are as follows:
Mick Sinclair, Partner - $400 (plus GST) per hour
Melanie Chuter, Associate - $350 (plus GST) per hour
Christy Whelan, Associate - $350 (plus GST) per hour
The differences in the rates set out above reflect the experience and specialisation of our professional staff. Time spent providing services to you is recorded in 6 minute units, with part units rounded up to the next unit of 6 minutes. 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 we provide. Full details of the relevant fee factors are set out in Rule 9 of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 (Rules).
If you wish us to represent you on a number of different matters over a period of time, then the foregoing will apply to each transaction or matter.
If you are a member of SPADA or WIFT, our lawyers may provide a discount, or the first 20 minutes of their time at no cost. Refer to the SPADA or WIFT Membership benefits for more details, and please advise us if you are a SPADA or WIFT member.
2.2 Disbursements and expenses: In providing services we may incur disbursements or have to make payments to third parties on your behalf (this may include such items as title search fees, registration fees and travel and courier charges). You authorise us to incur these disbursements which are reasonably necessary to provide our services to you. These will be included in our invoice to you when the expense is incurred.
2.3 GST: Our services will usually attract goods and services tax (GST). If so, GST is payable by you on our fees and charges.
2.4 Invoices: We may send monthly interim invoices to you, or upon completion of the matter, or on the termination of our engagement. We may also send you an invoice when we incur a significant expense. If you have difficulty in paying any of our invoices, please contact us promptly so that we may discuss payment arrangements.
2.5 Payment: Invoices are payable within 14 days of the date of the invoice, unless alternative arrangements have been made with us. Payment is to be made by bank transfer to the account stated on the invoice. If your account is overdue we may:
require interest to be paid on any amount which is more than 14 days overdue, calculated at the rate of 2% above the overdraft rate that this firm's main trading bank charges for the period that the invoice is outstanding;
stop work on any matters in respect of which we are providing services to you; and/or
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.
2.6 Payment by Third Parties: 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, nevertheless you remain responsible for payment to us if the third party fails to pay us when due.
3.1 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:
to the extent necessary or desirable to enable us to carry out your instructions;
as expressly or impliedly agreed by you;
as necessary to protect our interests in respect of any complaint or dispute;
to the extent required or permitted by law; or
to the extent required by the Law Society’s Rules of Conduct and Client Care for Lawyers.
3.2 Confidential information concerning you will as far as practicable be made available only to those within this firm who are providing legal services for you.
3.3 We will of course, not disclose to you confidential information which we have in relation to any other client.
4. Personal Information and Privacy
4.1 In our dealings with you we will collect and hold personal information about you, as well as your email address, postal address and telephone number(s). We will use this information carry out our services to you and to make contact with you about issues we believe may be of interest to you, which may include the provision of documents and other communications to you by email (or other electronic means). Provision of personal information is voluntary but if you do not provide full information this may impact on our ability to provide services to you.
4.2 Subject to paragraph 4.1 you authorise us to disclose, in the normal course of performing our services to you, such personal information to third parties for the purpose of providing those services, and any other purposes set out in these Terms.
4.3 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.
4.4 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. If you are an individual, you have the right to access and correct this information. If you require access, please contact us.
5. Verification of Identity & Due Diligence
5.1 The Anti-Money Laundering and Countering Financing of Terrorism Act 2009 requires in some circumstances that we collect from you and retain information required to verify your identity. We may therefore ask you to show us documents verifying your identity (such as a passport or driver’s licence). We will retain copies of these documents. 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 our services relate as we consider to be required by law.
5.2 We may be required to undertake additional due diligence on you, persons acting on your behalf and other relevant persons such as beneficial owners and controlling persons. We may not be able to begin providing services, or to continue to provide our services to you, until that is completed. To ensure our compliance and yours, we may be required to provide information about you, persons acting on your behalf or other relevant persons to third parties (such as government agencies). There may be circumstances where we are not able to tell you or such persons if we do provide information. 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 is considered by us to be potentially inaccurate, misleading, or in contravention of any law, we may terminate our services, or refuse to enter into an engagement with you.
6. Records & Documents
6.1 We will keep a record of all important documents which we receive or create on your behalf on the following basis:
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).
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.
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.
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 reasonable costs for doing this.
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.
You authorise us (without further reference to you) to destroy (or delete in the case of electronic records) all files and documents in respect of our services to you, 7 years after our engagement ends (other than any documents we are obliged by law to retain for longer). We may retain documents for longer at our option.
We may, at our option, return documents (either in hard or electronic form) to you rather than retain them. If we choose to do this, we will do so at our expense.
6.2 We own copyright in all documents or work we create in the course of performing our services to you, but grant you a non-exclusive licence to use and copy the documents as you see fit for your own personal or commercial use. However, you may not permit any third party to copy, adapt or use the documents without our written permission.
7. Conflicts of Interest
7.1 We are obliged to protect and promote your interests to the exclusion of the interests of third parties and ourselves as set out in the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 (Rules). This may result in a situation arising where we have a conflict of interest.
7.2 We have procedures in place to identify and respond to conflicts of interest or potential conflicts of interest. If a conflict of interest arises we will advise you of this and follow the requirements and procedures set out in the Rules. This may mean we cannot act for you further in a particular matter and we may terminate our engagement.
8. Duty of Care
8.1 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 the performance of our services for you, or who may rely on any advice we give, except as expressly agreed by us in writing.
8.2 Our advice is not to be referred to in connection with any prospectus, financial statement, or public document without our written consent.
8.3 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.
8.4 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.
8.5 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 for some reason beyond our reasonable control, and we will not be liable for any damage or loss caused thereby.
9. Limitations on our Liability
9.1 We hold professional indemnity insurance cover that exceeds the minimum standards specified by the New Zealand Law Society.
9.2 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 lesser of: (i) the amount available to be payable under the Professional Indemnity Insurance held by us; or (ii) five times the maximum aggregate total of our fees (excluding barrister’s fees and other disbursements) charged and paid over any 12 month period of our retainer on this matter.
10.1 You may terminate our services at any time.
10.2 We may terminate in any of the circumstances set out in the Rules including the existence of a conflict of interest, non-payment of fees, and failure to provide instructions.
10.3 If our services are terminated you must pay us all fees, disbursements and expenses incurred up to the date of termination.
11. Feedback and Complaints
11.1 Feedback from clients is helpful to us. If you would like to comment on any aspect of the service we provide, including how we might improve our service, please contact us.
11.2 If you have any concerns or complaints about our services or charges, please raise them as soon as possible with the person at our firm who has overall responsibility for your work and/or to Mick Sinclair. We will respond to your concerns as soon as possible. If you are not satisfied with the way we have dealt with your complaint, the New Zealand Law Society has a complaints service to which you may refer the issue. You can call the 0800 number for guidance, lodge a concern or make a formal complaint. Matters may be directed to:
Lawyers Complaints Service
PO Box 5041
Phone: 0800 261 801
To make a formal complaint:
12. Trust Account & Your Money
12.1 Due to our specific area of practice, we do not maintain a trust account for clients. We will not accept any payment from you to be held on trust for you or any other person. Do not pay any amounts into our account unless pursuant to an invoice from us.
13.1 We are entitled to change these Terms from time to time, in which case we will send you amended Terms.
13.2 Our relationship with you is governed by New Zealand law and New Zealand courts have exclusive jurisdiction.