M3 GROUP LIMITED - TERMS OF ENGAGEMENT
“Confidential Information” means any information relating to the business of either party, including customers, know-how or trade secrets, whether of a technical or business nature.
“Engagement Letter” means our letter of engagement agreed with you setting out the relevant engagement to be undertaken by us.
“GST” means Services and services tax as defined in the Goods and Services Tax Act 1985.
“Intellectual Property Rights” means all intellectual property rights including patents, copyright, registered and unregistered designs, trade marks (both registered and unregistered), logos, business and trade names, processes, inventions, and know-how.
“Services” means any services provided by us to you including as set out in the Engagement Letter (an as may be updated or varied from time to time).
“Terms” means these Terms and Conditions.
“we”, “us”, “our” means M3 Group Limited, its directors, shareholders, related companies (as defined in the Companies Act 1993), agents, employees, contractors, successors and assigns.
“you” and “your” means the person or entity acquiring Services from us.
2.1 You engage us exclusively to provide the Services, on the terms set out in the Engagement Letter and these Terms. You will comply with all your obligations set out in the Engagement Letter.
2.2 The person signing the Engagement Letter warrants to us that he or she has full power and authority to sign the Engagement letter and that it is binding on you in accordance with its terms.
3.1 These Terms are our standard terms and conditions which apply in respect of all Services and other work carried out by us, except to the extent that we otherwise agree with you in writing. Any Engagement Letter will be subject to these Terms. All other terms and conditions are expressly excluded unless otherwise agreed in writing by us. In the event of any conflict or inconsistency between the Engagement Letter and these Terms, the terms of the Engagement Letter will prevail.
3.2 A binding contract for the Services is deemed to be formed between us and you when you accept our Engagement Letter in writing or we otherwise provide any Services, whichever occurs first. You cannot cancel or suspend such contract once it has been formed unless we agree in writing.
4.1 Our fees, compensation and other entitlements for providing the Services will be as set out in our Engagement Letter or, in the absence of an Engagement Letter, our fees will be based on time and attendance based on hourly rates, as specified in our standard price list as at the time the Services are provided and available on request. Except as set out in our Engagement Letter, our prices are our best estimate of the likely fees based on our experience with similar matters. Estimates are given as a guide only and not as a fixed fee.
4.2 In providing the Services we may incur disbursements 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 disbursements or expenses which we will be incurring on your behalf.
4.3 All fees are exclusive of GST and any other taxes or duties which may be applicable.
4.4 We may ask you to pre-pay amounts to us under our Engagement Letter, or to provide security for our fees and expenses. You authorise us: (a) to debit against amounts pre-paid by you; and (b) to deduct from any funds held on your behalf in our accounts, any fees, expenses or disbursements for which we have provided an invoice. Any pre-payment required by us will be paid prior to the provision of any Services and, unless otherwise specified in the Engagement Letter, is non-refundable.
4.5 In cases involving the potential for bankruptcy of an individual or liquidation of a company, we may require that the fees, compensation and other entitlements for providing the Services be paid by a person or through an entity not subject to the threat of bankruptcy or liquidation.
4.6 You authorise us (without further reference to you) to obtain information about you from you or any other person (including any credit or debt collectors or law enforcement agencies), and you consent to any person providing us with that information. You agree that we may use any information we have about you relating to your credit-worthiness and give that information to any other person, including any credit or debt collective agency, for credit arrangements and debt collection purposes. If you are a natural person, you have rights under the Privacy Act 1993 to access and request correction of any personal information about you.
5.1 We normally issue invoices monthly. We may also send you an invoice on completion of the Services or termination of our engagement. We may also send you an invoice when we incur a significant expense.
5.2 Except as set out in our Engagement Letter, full payment of any fees and expenses incurred will be required and paid by you on the 20th of the month following the date of provision of our invoice. The method of payment will be as directed by us in our invoice. You must pay all amounts owing to us without set off or deduction.
5.3 Without prejudice to our other rights and remedies under these Terms or at law if you fail to make payment of any amount due to us:
(a) we may refuse to supply the Services to you;
(b) we may charge interest on the amount owing at a rate equivalent to our bank overdraft rate plus 3% per year from the due date for payment until payment is received in full (both prior to and following any judgment obtained).
5.4 Any expenses, disbursements and legal costs incurred by us in the enforcement of any rights contained in these Terms will be paid by you, including our reasonable solicitor’s fees or debt collection agency fees.
6. PROVISION OF SERVICES
6.1 Dates given by us for provision of the Services are given in good faith but are an estimate only and are not be treated as a condition of our contract with you. If delivery is delayed for any reason we will not be liable for any costs, losses, damages or claims in relation to that delay in supply.
7. YOUR OBLIGATIONS
7.1 You will:
(a) provide to us, in a timely manner (at your cost) access to your premises and to other facilities as reasonably required by us in the Engagement Letter to deliver the Services or to perform the Services and our obligations under these Terms;
(b) provide to us, in a timely manner (at your cost) any documents, information or other materials as we may reasonably require for the performance of our obligations, and ensure that the documents, information or materials are complete and accurate in all material respects;.
(c) co-operate with us in all matters relating to the Services and will appoint a manager in relation to the Services who shall have the authority to contractually bind you on matters relating to the Services;
(d) be responsible for, and will inform us of, all health and safety rules, regulations, plans and hazards and any other reasonable security requirements that apply to your business;
(e) obtain and maintain all necessary licences and consents and comply with all relevant legislation in relation to your business and the Services;
(f) comply with our reasonable directions in relation to the Services during the period in which we provide the Services.
8.1 Each party must not at any time (except in the proper course of performing its duties under these Terms) disclose to any person any Confidential Information of, or relating to, the other party, without the prior written approval of that other party. Each party shall ensure that its employees, contractors, officers and agents do not, without the written permission of the other party, use Confidential Information supplied to it for any purpose that is not related to these Terms.
8.2 Nothing in this clause prohibits disclosure or use of information which:
(a) is in the public domain otherwise than as a result of a breach of confidence; or
(b) is required to be disclosed by law or any government or governmental body, authority or agency having authority over a party to these Terms.
9. INTELLECTUAL PROPERTY RIGHTS
9.1 Each party will retain ownership of its own Intellectual Property Rights existing at the time these Terms are entered into. You acknowledge and agree that all Intellectual Property Rights created or devised by us in connection with the provision of the Services, shall be owned by and shall vest in us, as and when created. To the extent that you become the owner of any Intellectual Property Rights arising in connection with the Services, you hereby assign and transfer absolutely, and shall procure the assignment of, all rights, title and interest in and to the Intellectual Property to us.
9.2 You shall have no right to use, sell, reproduce, copy, distribute or otherwise dispose of our Intellectual Property Rights, and you must not allow any third party to reproduce our Intellectual Property Rights.
10. LIABILITY AND INDEMNITY
10.1 You agree that you are purchasing the Services for the purposes of a business and therefore, as between you and us, to the fullest extent permitted by law, the Consumer Guarantees Act 1993 will not apply to the supply of Services from us to you. The parties also agree that the Services are being supplied by us, and acquired by you, in trade and that sections 9, 12A and 13 of the Fair Trading Act 1986 will not apply between the parties. You agree that this clause is fair and reasonable in the context of these Terms.
10.2 To the fullest extent permitted by law, in no event shall we be liable to you under or in connection with these Terms and/or the supply of the Services (whether in contract, tort or otherwise) for consequential losses or damages, indirect loss or any economic loss or loss or profits.
10.3 To the extent that our liability is not otherwise limited or excluded, and to the fullest extent permitted by law, our aggregate liability to you whether in tort (including negligence), contract, at law or otherwise for any loss, damage, liability, claim or injury in relation to the Services is limited to the price actually paid by you for the Services in respect of which the claim or claims are made. You agree to indemnify and hold us against all cost, loss, claims or liability suffered or incurred by us arising from or in connection with the Services.
10.4 To the fullest extent permissible by law all warranties, conditions or other terms implied by law are excluded.
10.5 To the maximum extent permitted by law, you agree to indemnify us, and to hold us harmless against any liabilities, losses, expenses and other costs (including legal costs and the cost of our professional time) incurred by us in connection with any claims, inquiries, investigations, or other actions against us or you by any third party arising out of or in any way connected with the Services.
10.6 Information and material presented in any Report or Document ("Report") produced by M3 is provided to you for informational purposes only and are not to be used or considered as an offer or a solicitation to sell or an offer or solicitation to buy or subscribe for securities or other financial instruments or any advice or recommendation with respect to such securities or other financial instruments.
10.7 M3 makes any representation or warranty or guarantee as to the completeness, accuracy, timeliness or suitability of any information contained within any part of the Report nor that it is free from error. M3 does not accept any liability (whether in contract, tort or otherwise howsoever and whether or not they have been negligent) for any loss or damage (including, without limitation, loss of profit), which may arise directly or indirectly from use of or reliance on such information.
10.8 Whilst the information provided has been obtained from sources believed to be reliable, neither M3 nor any of their affiliates attests to its accuracy or completeness. M3 reserves the right to change any source without restriction or notice. The values quoted are indicative only and are subject to change. Past performance should not be taken as an indication or guarantee of future performance and no representation or warranty, express or implied, is made regarding future performance. Opinions and/or estimates reflect a judgment at the original date of publication by us and are subject to change without notice. The price of, value of and income from any instruments mentioned in the Report can fall as well as rise.It may be difficult to deal in any such investment or to obtain reliable information about its value from an independent source and therefore the valuation determined may not be the precise value at which the investment may be sold.The levels and bases of taxation may change and the Report should not be relied upon for tax purposes. You should take relevant tax advise from your chartered accountant or lawyer.
10.9 M3 do not accept any responsibility or liability for information provided by third parties. Official confirmation of portfolio holdings with these parties and issues arising from information they have provided must be addressed directly with them.
10.10 M3 is a registered Financial Service Provider for Wholesale clients only as defined by s49 of the Financial Service Providers (Registration and Dispute Resolution) Act 2008.
11.1 In consideration for us agreeing to provide the Services, the person(s) signing the Engagement Letter as guarantors (if any) (the “Guarantors”) undertake in their personal capacity to jointly and severally guarantee to us (as principal debtors); (a) the payment of any money owed to us by you; and (b) the performance of all your obligations under these Terms. Such Guarantors indemnify us against any non-payment or non-performance by you. The personal liability of any such Guarantors not limit or exclude your liability to us. Such Guarantors acknowledge and agree that no indulgence, granting of time, variation, waiver or forbearance to sue by us shall in any way relieve the Guarantors from liability under this guarantee.
12.1 We may immediately terminate or suspend the Services, the Engagement Letter and/or these Terms if you: (a) do not make payment of any amounts due to us on or before the due date for payment; (b) indicate to us that you will not pay any sums by the due date; (c) fail to comply with your obligations under the Engagement Letter or these Terms; or (d) suffer any bankruptcy, liquidation, receivership, insolvency, compromise with creditors or other similar event. On such suspension or termination, all amounts owing to us and all fees and other consideration become immediately due and payable in their entirety.
12.2 On termination, the accrued rights, remedies obligations and liabilities of the parties as at termination shall not be affected.
12.3 If the agreement is terminated without cause and a Transaction occurs within 12 months of this termination date, on which Success Fees would have been payable, then M3 will be entitled to the Success Fees as per the agreement.
13.1 Nothing in these Terms is intended to, or shall operate to, create a partnership between the parties, or to authorise either party to act as agent for the other, and neither party shall have authority to act in the name of or on behalf of the other or otherwise to bind the other in any way (including the making of any obligation or liability and the exercise of any right or power).
13.2 The Engagement Letter and these Terms contains all of the terms, representations and warranties made between the parties and supersede all prior discussions and agreements covering the subject matter of the Services.
13.3 You agree that the rights and benefits conferred upon us by these Terms shall extend to each of our directors, shareholders, related companies (as defined in the Companies Ac 1993), agents, employees, contractors, successors and assigns and are intended to be enforceable by such persons for the purposes of the Contract and Commercial Law Act 2017.
13.4 We may vary these Terms by putting the varied terms on our website or notifying you in writing of the new terms. Services provided after the date of the publication or notification of the varied terms will be subject to the variation and the acceptance of Services by you after such date shall be deemed to be an acceptance of such varied Terms.
13.5 You must not assign or transfer all or any part of your rights or obligations under these Terms without our prior written consent. We may assign any rights or obligations without your approval as well as subcontract any obligations to third parties.
13.6 We will not be in breach of any of our obligations to you under these Terms because of any failure on our part directly or indirectly due to a cause beyond our reasonable control.
13.7 The illegality, invalidity or unenforceability of any provision of these Terms will not affect the legality, validity or enforceability of another provision.
13.8 No waiver of any provision of these Terms will serve as a waiver of any other provision of these Terms and we will not have waived or be deemed to have waived any provision of these Terms unless such waiver is in writing and executed by us.
13.9 These Terms apply to any current engagement for Services and also to any future engagement for Services, whether or not we send you another copy of them. Our relationship with you is governed by New Zealand law and New Zealand courts have exclusive jurisdiction.
14. NORTH AMERICA SERVICES
14.1 Due to USA and Canadian regulatory requirements should the Services involve Capital Raising activity or Mergers and Acquisitions in the USA or Canada, we may need to engage services in the USA or Canada to fulfil those regulatory requirements. You agree to pay any extra reasonable costs so incurred in respect of the Services.