These Terms of Business apply to all Services provided to You by become a brand of Medcapital NZ LTD.
1.1 We will provide the Services subject to these Terms of Business.
1.2 We will use reasonable skill and care in the provision of the Services to you.
1.3 All Services that we provide to you are subject to the Financial Markets Conduct Act 2013, the Financial Service Providers (Registration and Dispute Resolution) Act 2008, the Financial Advisers Act 2008 and the Code of Professional Conduct for Authorised Financial Advisers (to the extent that they apply to the Services).
1.4 Changes in the law may take place before our advice is acted upon or may be retrospective in effect. Unless specifically stated in the Confirmation of Engagement we accept no responsibility to inform you of changes in the law affecting advice previously given by us or liability for any loss you may suffer from any such change.
1.5 We will use all reasonable endeavours to carry out our obligations in accordance with any timeframes set out in the Confirmation of Engagement or as otherwise agreed. However, unless both of us agree otherwise in writing, any timeframes or dates contained in the Confirmation of Engagement or otherwise advised to you in writing are indicative timeframes and dates intended for planning and estimating purposes only and we will not be responsible for any failure to meet them.
1.6 Either you or us may request changes to the Services to be provided or changes to any other aspect of the Terms of Business but no such changes take effect unless we both agree those changes in writing. You and us agree to work together to enable both you and us to assess the impact of any requested changes on the cost, timing or any other aspect of the Services.
1.7 Where specific MedCapital staff are named in the Confirmation of Engagement, we will use reasonable efforts to ensure that those people are available to provide the Services . Where any staffing changes occur, we will endeavour to give you reasonable notice of the impending changes.
2.1 We may provide you with reports from time to time. You may make copies of any reports for your own internal use, but you must not provide the report or copies of it to any third party without first obtaining our written consent. Such consent will only be granted on the terms we deem appropriate which will include that we accept no duty or responsibility to any other party who may seek to rely on our report. In some cases, appropriate releases or hold harmless letters from third parties may be required.
2.2 MedCapital will own the intellectual property rights in all documentation, reports, systems, materials, methodologies and processes produced or developed by MedCapital in the course of providing the Services or otherwise created in the course of our engagement. You agree to do all such things and sign such documents as we request to ensure that such intellectual property rights vest MedCapital.
3.1 You agree to provide in a timely fashion all information and documents reasonably required to enable us to provide the Services. We will not independently verify the accuracy of any information and documents provided by you, your professional advisors or any other person acting on your behalf.
3.2 Our advice will be based on the information provided by you, your professional advisors or any other person acting on your behalf, the circumstances made known to us by you and the assumptions set out in our correspondence and documentation. We rely on you to inform us as soon as possible of any changes to the information provided, as this may impact our advice.
3.3 For the avoidance of any doubt, we will not be liable for any loss, damage, cost or expense that you suffer or incur in connection with any inaccuracy or other defect in any information or documents supplied by you, your professional advisors or any other person acting on your behalf.
4. Fees and Payment
4.1 Where an annual membership fee is specified in the Confirmation of Engagement, the annual membership fee is payable immediately upon receipt of invoice or unless as otherwise agreed.
4.2 Where no annual membership fee is specified in the Confirmation of Engagement, or services are requested and provided which are not covered by the annual membership fee, the fees charged will be based on our hourly rates and reflect time spent and such other factors as complexity, monetary values involved, specialist input required and the urgency of the matter.
4.3 All fees are exclusive of Goods and Services Tax (“GST”). GST will be charged and is payable in respect of our fees at the prevailing rate.
4.4 In providing the Services we may incur costs or have to make payments to third parties on your behalf. These will be included in our invoice to you when the expense is incurred. We may require an advance payment for the costs or expenses which we will be incurring on your behalf.
4.5 We will invoice you annually for our fees and/or any disbursements and expenses referred to in clause 4.4. Unless otherwise agreed by us in writing, payment of our fees, disbursements and expenses is required within 7 days of the date of the invoice, time being of the essence. MedCapital retains the right to charge interest on accounts which are overdue by more than one month at the rate of 3% above the overdraft rate charged by our bankers, calculated on a daily basis from the due date for payment until payment is received.
5.1 You hereby agree that MedCapital may receive referral fees, commissions or other payments from its Related Companies or other third parties in relation to:
a) referrals or introductions made by MedCapital to such Related Companies or third parties; or
b) services performed or facilitated by such Related Companies or third parties.
6.1 This Contract will apply from the commencement date stated in the Confirmation of Engagement, or where no commencement date is specified in the Confirmation of Engagement, then from the date of acceptance of this Agreement.
6.2 The Agreement will continue until the earlier of the date stated in the Confirmation of Engagement (including any renewed term) or the date it is otherwise terminated in accordance with clause 7.
7.1 Either party may terminate this Agreement for any reason by giving 20 Business Days’ written notice to the other party.
7.2 Either party may terminate the Agreement immediately by written notice to the other party if the other party: –
a) being a company, goes into liquidation, has a receiver or statutory manager appointed, or is wound up otherwise than for the purpose of a solvent reconstruction or amalgamation;
b) being a natural person, commits any act of bankruptcy or has a receiver or manager appointed over all or any of his or her property; or
c) commits a material breach of this Agreement and such breach, if capable of remedy, is not remedied to the satisfaction of the party serving notice within 20 Business Days of receipt of written notice of such breach from that party.
7.3 Termination of this Agreement shall be without prejudice to any rights and/or obligations of the parties existing at the time of termination.
8. Dispute Resolution
8.1 You may at any time direct any complaints to Financial Services Complaints Ltd, the provider of our approved dispute resolution scheme.
8.2 To the extent that any dispute is not within the scope of the dispute resolution scheme set out in clause 8.1 the following provisions will apply:
a) Subject to clauses 8.1 and 8.2f), neither party may begin legal proceedings in connection with this Agreement unless the steps in clauses 8.2b) , 8.2c) and 0 have been followed;
b) Either party may give notice of the dispute to the other party and the parties shall then meet to endeavour to resolve the dispute;
c) If the dispute is not resolved by the parties in accordance with clause 8.2b) within 10 Business Days of the notice referred to in that clause, then the parties will seek a resolution through the use of mediation (with the mediator to be appointed by agreement between the parties, or failing agreement, by the President for the time being of the New Zealand Law Society);
d) If the dispute remains unresolved 20 Business Days after the expiry of the period referred to in clause 8.2c) the dispute may be submitted by either party to a court or other dispute resolution mechanism agreed by the parties;
e) Despite the existence of a dispute, each party must continue to perform its obligations under this Agreement that are unaffected by the dispute;
f) A party may commence court proceedings in relation to any dispute arising out of this Agreement at any time where the party seeks urgent interlocutory relief.
9.1 To the extent permitted by law, all warranties, conditions or terms, other than those expressly set out in these terms and conditions, including, but not limited to, all warranties, conditions or terms implied by law are excluded.
9.2 Nothing in this clause 9 has the effect of excluding, restricting or modifying any non-excludable statutory condition, warranty, guarantee right, remedy or other benefit arising under the Fair Trading Act 1986 or Consumer Guarantees Act 1993.
9.3 The total aggregate liability of MedCapital to you for any loss or damage, caused by, or resulting from, or in relation to, the Services, whether arising from breach of contract, negligence, or any other tort, in equity or otherwise at law, and whether or not MedCapital was advised of the possibility of such loss or damage, is limited to the fee paid by you to MedCapital in the year preceding the relevant claim.
9.4 To the extent permitted by law, MedCapital shall not be liable for any loss of profit or revenue, indirect, incidental or consequential expenses, losses, damages or costs (including, without limitation, business interruption, loss of data, or failure to realise anticipated savings or benefits) whatsoever incurred by or awarded against you arising in any way out of or in relation to this agreement (including as a result of the negligence of MedCapital or any third party).
9.5 You agree that if you make any claim against us for loss or damage as a result of a breach of this Agreement, and that loss or damage is contributed to by your own actions, then liability for your loss or damage will be apportioned as is appropriate having regard to the respective responsibility for the loss or damage, and the amount you may recover from us will be reduced by the extent of your contribution to that loss or damage.
9.6 You shall indemnify us and hold us harmless from an against any loss, damage, cost (including legal costs on a solicitor and own client basis), expense, proceeding or judgement that we suffer or incur in connection with your breach of this Agreement.
10.1 We will respect and ensure the confidentiality of the information that you provide to us and ensure its use is limited to the purposes for which it was provided.
10.2 MedCapital will not disclose the information you provide to us to any person, except that:
a) MedCapital may disclose any information which is or becomes publicly available other than by reason of wrongful disclosure by MedCapital;
b) MedCapital may disclose any information which its legal advisers or professional advisers determine after consultation, to the extent practicable, with you, is or may be necessary or desirable to be disclosed by law or rule or regulation or pursuant to any court or administrative order or ruling or in any pending legal or administrative proceeding or investigation or the requirement of any regulatory authority; and
c) MedCapital may disclose any information to its Related Companies, employees, agents, legal and other professional advisers and, with your consent, to any other person that MedCapital considers necessary or desirable in order to perform any of the Services or carry out any of our recommendations.
11.1 MedCapital will not be prevented or restricted by anything in this Agreement from providing services for other clients.
12. Documents and Record Keeping
12.1 You acknowledge and agree that MedCapital and/or its Related Companies may have obligations to the Financial Markets Authority as financial service provider(s) to retain information (including personal information) relating to you or the Services and, despite anything contained in clause 10, make available such records or information for examination by the Financial Markets Authority on request.
12.2 It is our practice to destroy documents belonging to us after they are more than seven years old. Your acceptance of these terms includes your consent for us to destroy any documents that strictly belong to you, which have been filed amongst our own papers.
12.3 MedCapital also uses an electronic document management system in which all documents received from clients are scanned and stored electronically. Your acceptance of these terms includes your consent for MedCapital to destroy any hard copy documents received from you except where you have specifically requested us not to do so.
13 Privacy of Personal Information
13.1 Disclosure by you of personal information to us is subject to the Privacy Act 1993.
14. Entire Agreement
14.1 This Agreement forms the entire agreement between us relating to the Services. It replaces and supersedes any previous proposals, correspondence, understandings or other communications whether written or oral.
15 Order of Precedence
15.1 In the event of any conflict between these Terms of Business and the Confirmation of Engagement, the Confirmation of Engagement will take precedence and prevail.
16.1 You agree that this Agreement binds you personally and you will not assign any of your rights or obligations.
16.2 MedCapital may assign all or any of its rights and may transfer all or any of its obligations under this Agreement to any person.
17.1 MedCapital may amend these Terms of Business from time to time by posting the amended Terms of Business of MedCapital’s website or by sending you by post or email the amended Terms of Business. The amendments to the Terms of Business will take effect no earlier than 10 Business Days after the date on which the amended Terms of Business are posted on MedCapital’s website or sent to you.
17.2 Use of our Services will constitute an acceptance of any amendments to the Terms of Business made in accordance with this Agreement.
17.3 No other amendment to this Agreement will be effective unless in writing and signed by each party.
18.1 Any written notice required under this Agreement must be signed by the party giving that notice and (without limiting the means by which notice may be given under this Agreement) will be deemed validly given if: –
a) delivered personally to the intended recipient’s physical address most recently provided to the other for communications.
b) sent by email to the intended recipient’s email address most recently provided to the other one hour after the email is sent unless a return email is received by the sender within that one-hour period stating that the email address is wrong or that the message cannot be delivered;
c) provided that a party may at any time, by written notice to the other party, change or update its physical address or email address for the purposes of receiving notices under this Agreement
18.2 Any notice transmitted by email or delivered after 5.00 pm on a Business Day, or at any time on a non Business Day, will be deemed received at 9.00 am on the next Business Day (being, in each case, the time of day at the intended place of receipt of that notice).
19. Notices to produce documents:
19.1 If we receive any legally enforceable notice or demand issued by a third party, including the Financial Markets Authority, Inland Revenue Department, New Zealand Stock Exchange, any government statutory body or instrumentality, or any court or tribunal in relation to or in connection with the services you agree to pay our reasonable professional costs and expenses (including legal expenses on a solicitor and own client basis) in complying with or challenging any such notice or demand to the extent that our costs and expenses are not recovered or recoverable from the party issuing the notice or demand.
20. Governing Law
20.1 These Terms of Business shall be governed by, and construed in accordance with, the laws of New Zealand. Any suits, claims, causes of action or disputes arising shall be brought or made in the courts of New Zealand.h
Agreement means the Confirmation of Engagement and these Terms of Business, as amended from time to time.
Business Day means a day of the week other than a Saturday or Sunday, or a bank holiday or public holiday in Auckland, New Zealand and not any day in the period commencing on 24 December in any year and ending on 5 January in the following year.
MedCapital, “we” “us” and “our” refer to Atlas Wealth Limited, its agents, successors and assignees.
Membership Fee means the annual membership fee payable by you for the Services as set out in the Confirmation of Engagement.
Related Companies has the meaning in section 2 (3) of the Companies Act 1993
Services means all services provided to You by MedCapital as set out the Confirmation of Engagement.
Terms of Business means these Terms of Business as amended from time to time in accordance with clause 17.
You and “your” refers to you, our client, and, in the case of joint clients, includes each of you jointly and severally.
22.1 Unless the context otherwise requires or as specifically otherwise stated:
a) The terms defined in the Confirmation of Engagement have the same meaning in these Terms of Business;
b) headings to clauses are included for ease of reference only and are not to have any effect on construction or interpretation;
c) “including” and similar words do not imply any limitation;
d) references to any form of law are to New Zealand law, including as amended or re enacted at any time or from time to time;
e) a reference to a party or a person includes any form of entity and their respective successors, representatives, permitted assigns and substitutes;
f) a reference to a person includes an individual, firm, company, corporation or unincorporated body of persons, or any authority, in each case whether or not having separate legal personality, and a reference to a company includes a person;
g) every right, power and remedy of a party remains unrestricted and may be exercised without prejudice to each other at any time;
h) the singular includes the plural and vice versa;
i) monetary amounts are in New Zealand dollars unless otherwise specified;
j) New Zealand times and dates apply; and references to a month or a year are references to a calendar month or year, as the case may be;
k) references to sections, clauses, schedules, annexes and other identifiers are to those in this Agreement, and form part of this Agreement;
l) references to any agreement or deed will include any agreement or deed which amends or replaces it;
m) this Agreement is not to be construed to the disadvantage of a party because that party was responsible for its preparation; and
n) “written” and “in writing” include any means of reproducing words, figures or symbols in a tangible and visible form.