Terms and Conditions of Business
DEFINITIONS AND INTERPRETATION
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In these Terms and Conditions of business:
"Client" means the person who requested trustee.net.nz limited to provide services or any other person who has agreed to pay for services, or has previously remitted payment for those services.
"Trust" means any one or more Trusts for which the client has requested trustee.net.nz limited to provide services.
“Company” means any one or more Companies for which the client has requested trustee.net.nz limited to provide services.
"Person" shall include, as far as the context admits, any person, firm, Company or other body incorporated or unincorporated.
"Services" means any Trust or Company Establishment, Provision of Trustees or Directors, documentary or administration services provided to the client.
"Illegal activities" means all illegal activities which, without prejudice to the generality of the forgoing, include activities related to terrorism; drug trafficking; money laundering; receiving the proceeds of criminal activities or trading with such countries as might from time to time be subject to any embargo imposed by the Security Council of the United Nations, the European Union, New Zealand or the United Kingdom.
"Prohibited activities" means activities currently not approved by trustee.net.nz limited which are activities involving arms, weapons or munitions; mercenary or contract soldiering; security and riot control equipment; any device that could lead to the abuse of human rights or be utilised for torture; technical surveillance or bugging equipment; industrial espionage; dangerous or hazardous biological, chemical or nuclear materials including equipment or machinery to manufacture or handle such materials and their transportation, handling disposal or dumping of such materials; human or animal organs; the abuse of animals, genetic material; adoption agencies including surrogate motherhood; the abuse of refugees or human rights; pornography; drug paraphernalia; the provision of credit cards; pyramid sales, time share, religious cults and their charities.
Unless otherwise agreed in writing any activity relating to the provision of financial services which requires a licence in any jurisdiction.
Any activity whatsoever that may damage the good reputation of trustee.net.nz limited, its Introducer, group, New Zealand, or the country of establishment of the Trust or Company.
"Prohibited persons" means persons prohibited under the laws of any country by reason of being a minor or having no legal capacity (for whatever reason) or otherwise unqualified to be party to a contract who are undischarged bankrupts or are otherwise disqualified from acting as a Director or who have been imprisoned or found guilty of any criminal offence (other than a motoring offence carrying a non-custodial sentence) who have been proven to act in a fraudulent or dishonest manner in any civil proceedings who are resident in any country subject to any international restriction embargo including, but without prejudice to the generality of the foregoing those imposed by the Security Council of the United Nations, New Zealand, the European Union or the United Kingdom.
1. REQUESTS AND SERVICES
trustee.net.nz limited is a business separate from any firm, partnership or company of solicitors, accountants, bankers or corporate services provider with which it may be associated. The Client agrees that it will not seek to rely on the ethical rules of any professional association in its dealings with trustee.net.nz limited. If requested to do so, the Client will submit to personal counselling of the fact that the distinction between trustee.net.nz limited and any associated professional firm or company is clearly understood by the Client, the implications are understood and will sign a written confirmation to the effect that this is the case.
In the provision of any of the services requested by the Client, trustee.net.nz limited shall follow the requests at its own discretion, whether given by word of mouth, letter, email, telephone, fax or otherwise of the Client or any one of the Clients where there is more than one.
Provided that:
(a) Where there is more than one Client, if trustee.net.nz limited is requested by any one of the Clients to cease following requests as provided in this Clause, trustee.net.nz limited shall not accept any requests from anyone and shall not be obliged to take action until it receives further requests signed by all of the Clients.
(b) trustee.net.nz limited shall not be obliged to perform any services which might (in the opinion of trustee.net.nz limited) contravene the law of any jurisdiction or which might contravene or be beyond the powers of the Trust as set out in its Trust Deed, or powers of the company as set out in its Constitution, or be illegal/prohibited activities, or be contrary to the policies of trustee.net.nz limited.
(c) trustee.net.nz limited shall not be liable for any failure or delay to carry out the requests herein provided for, or any errors in carrying out such requests other than in the case of fraud or gross negligence on the part of trustee.net.nz limited.
(d) trustee.net.nz limited reserves the right not to follow requests which appear to be conflicting, ambiguous, unclear or of unclear authenticity. If for any reason trustee.net.nz limited is unable to obtain sufficient and satisfactory requests it may exercise any rights, satisfy any such liabilities, and retain or dispose of monies collected and generally act or not act as it may think fit. The Indemnity hereinafter granted by the Client to trustee.net.nz limited shall extend to and cover all acts and omissions incurred by trustee.net.nz limited.
(e) In its brochure and other materials trustee.net.nz limited provide information, inter alia, on Trust and Commercial matters. Such information does not purport to be legal or other professional advice and cannot be taken to constitute such advice.
(f) Upon request the Client agrees to provide trustee.net.nz limited with whatever information trustee.net.nz limited may reasonably require about the background of the Client and/or his or her dealings and business.
(g) So that trustee.net.nz limited may at all times be able to contact the Client/Settlor should the need arise, the Client hereby agrees to inform trustee.net.nz limited immediately upon changing their usual business, residential address, or telephone, facsimile numbers and e-mail address.
2. FEES
2.1 The Client agrees to pay the cost of the Trust or Company as detailed in the Fee Schedule published by trustee.net.nz limited at the date of this agreement and any amendments thereto.
2.2 trustee.net.nz limited may open a bank account on behalf of the Trust or Company and shall be designated a signing authority on such accounts in order that regular payments, which the Trust or Company is obliged to make, are made as required. trustee.net.nz limited will make such payments as professional fees, filing fees, out of pocket expenses, auditing fees, tax payments and its own fees without specific authorisation of the Client. The fees, expenses and other charges of trustee.net.nz limited relating to its performance under this agreement shall have priority on the Trust’s or Company's assets and at all times the Trust or Company is to maintain a minimum balance of US$1500. In the event of trustee.net.nz limited having insufficient Client funds to meet said fees, expenses and other charges, the Client undertakes (jointly and severally if more than one) to pay said fees, expenses and other charges within 14 days of a request from trustee.net.nz limited.
2.3 The parties hereto agree that if economic conditions become such in the opinion of trustee.net.nz limited as to warrant an increase in the fees charged under this Agreement and such increase is applicable to all such Trusts or Companies, only increases exceeding 10% of trustee.net.nz limited' s scale of fees require the prior approval of the Client before they may be applied to this agreement.
2.4 trustee.net.nz limited shall bill and be paid monthly for all Trust or Company expenses incurred over an amount of US$200 in the performance of its duties to the Trust or Company.
2.5 If there is no bank account opened the Client agrees to pay trustee.net.nz limited directly for any invoices in connection with work done for the Trust or Company on the basis of immediate settlement.
3. INDEMNITY
3.1 The Client(s) indemnifies trustee.net.nz limited for any services it shall provide and agrees to hold harmless and will keep indemnified, trustee.net.nz limited and its successors, and assigns from all actions, suits, proceedings, claims, demands, liabilities, costs and expenses whatsoever shall be taken or made against trustee.net.nz limited, or which may be incurred or become payable by trustee.net.nz limited in respect of, or arising out of the provision of any of the services said before this including (but without prejudice to the foregoing) in respect of, or arising out of, or in consequence of any decision or act made by trustee.net.nz limited.
3.2 The terms of the indemnity contained in Clause 3.1 above shall extend to all Directors, Officers, Associated Agents and staff from time to time of trustee.net.nz limited and its affiliated firms or companies wherever situated who may perform any of the functions herein contemplated and notwithstanding that there may be some defect in their appointment, qualifications or authority. This Indemnity is intended to endure for the benefit of trustee.net.nz limited and of every officer, employee and agent and/or personal representative thereof so as to be enforceable by each of them against the Client.
3.3 This indemnity and every agreement contained herein is without prejudice to any other indemnity in favour of trustee.net.nz limited and/or its successors, officers, employees and agents and of the personal representatives thereof. The termination of this Indemnity Agreement or the employment or appointment of any officer, employee, or agent as the case may be, shall not relieve the Client of his obligations to indemnify trustee.net.nz limited, its successors, officers, employees or agents and their personal representatives, if any, with respect to errors or omissions of any or all of them occurring prior to any such termination.
4. ACTIONS OR PROCEEDINGS
If the Client or trustee.net.nz limited receives notification of any claim, demand or the commencement of any action, suit, or proceeding, they shall notify the other party in writing immediately. trustee.net.nz limited shall have the right to participate in and defend any such claim or action with counsel selected by trustee.net.nz limited. Any such action, suit, proceeding, claim or demand may be settled by trustee.net.nz limited in consultation with the Client at the discretion of trustee.net.nz limited.
5. CLIENT MONIES
Where any monies are held in one of trustee.net.nz limited’s Clients account for an intermediary period, no interest will be paid unless otherwise agreed.
6. TAX ADVICE
Since trustee.net.nz limited is not qualified to advise on legal and tax implications affecting the Trust or Company, trustee.net.nz limited confirms to the Client that the Client should and is advised to seek such legal and tax advice with regard to the Trust and the Settlors and Beneficiaries, or the Company and the Directors and Shareholders, thereof in such other jurisdiction as may affect the Trust or Company and/or the Client and the Client hereby confirm that trustee.net.nz limited has given no advice and has made no representation or warranty as to its ability to give such advice on legal or taxation matters.
7. ASSETS
Where trustee.net.nz limited provides Trustee services, control of the bank accounts, any financial transactions and any assets belonging to the Trust or Company must remain with the Trustees or Directors.
8. LAW
These terms and conditions shall be governed by the laws of New Zealand. By execution and delivery of any deed of trust or constitution or appointment of trustee.net.nz limited as trustee or director unless otherwise agreed the Client agrees to accept and be bound by these terms and conditions and trustee.net.nz limited’s scale of fees from time to time in place. The Client hereby irrevocably submits to the exclusive jurisdiction of the Courts of the New Zealand and irrevocably consents to the service of process out of such Courts by mailing copies thereof by registered mail, postage prepaid to his/her address.
9. TERMINATION
9.1 This Agreement may be terminated by trustee.net.nz limited giving the Client 3 (three) months notice of termination.
9.2 In the event of termination, trustee.net.nz limited shall not be obliged to return all or any part of the fees and expenses paid to it hereunder (save for amounts paid on account for disbursements to be incurred).
10. TRANSFER OF ADMINISTRATION
In the event of transfer of the administration of the Trust or Company:-
trustee.net.nz limited reserves the right to require the require the client, director, beneficiary and any appropriate party to enter into a deed of indemnity, severance agreement and suitable covenants in the transfers of any assets transferred.
trustee.net.nz limited reserves the right to charge a fee for the transfer in accordance with its Fee Schedule or as advised from time to time.
11. The Client acknowledges that when it intends to establish a New Zealand Foreign Trust for NZ tax purposes, that this is impossible or may create complications and/or expenses should the settlor be or become a resident for tax purposes of New Zealand or Australia. The Client undertakes to inform trustee.net.nz limited forthwith in the event that the Client intends to become resident of New Zealand or Australia and admits that filings will have to be submitted to the NZ Inland Revenue Department, that the tax status of any trust or company held by trustee.net.nz limited may change and that certain costs and expenses may arise to comply with legal requirements of the change of residence of the Client.
12. The NZ Taxation (Depreciation, Payment Dates Alignment, FBT, and Miscellaneous Provisions Act 2006 includes obligations on trustees and their directors to keep and maintain records of the financial position of the foreign trust including concerning accounting periods applicable including the following;
(i) documents that evidence the creation and constitution of the [foreign ]trust; particulars of settlements made on, and distributions made by, the foreign trust, including the date of the settlement or distribution,
(ii) the name and address (if known) of the settlor of the settlement, the name and address (if known) of the recipient of the distribution; and
"(iii) a record of---
"(A) the assets and liabilities of the foreign trust; and (B) all entries from day to day of all sums of money received and expended by the trustee in relation to the foreign trust and the matters in respect of which the receipt and expenditure takes place; and
"(C) [if the trust carries on a business, ] the charts and codes of accounts, the accounting instruction manuals, and the system and programme
documentation which describes the accounting system used in each income year in the administration of the trust.
Disclosure obligations on New Zealand trustees of Foreign Trusts include as follows:-
(1) A New Zealand resident [foreign] trustee [for a foreign trust] must disclose to the Commissioner the following particulars for the foreign trust---
(a) the name or other identifying particulars (for example, the date of the settlement on the trust) that relate to each [the] foreign trust in respect of which the person is a trustee; and
(b) the name and contact particulars of the {New Zealand }resident [foreign] trustee[s]; and
(c) whether a settlor is resident in the Commonwealth of Australia; and
(4) If subsection (3) does not apply, the disclosure required by subsection (1) must be made by the date that is---
(a) 30 days after the date of the person's appointment as a trustee, if the person is appointed on or after 1 April 2006:
(b) 60 days of the commencement of this section, if the person is appointed before 1 April 2006:
182 Absolute liability offences S 143 (1B) No person who is a resident foreign trustee may be convicted of an offence against subsection (1)(a) for not keeping books and documents required to be kept under section 22 if the person proves that---
(a) the person did not know of the requirements of section 22:
(b) another resident foreign trustee has been appointed under section 22(2C) as agent of the resident foreign trustees for the purposes of section 22 and the Commissioner has been notified of the appointment.
(1C) No person who is a resident foreign trustee may be convicted of an offence against subsection (1)(b) for not disclosing information required to be disclosed under section 59B if the person proves that---
(a) the person did not know of the requirements of section 59B:
(b) another resident foreign trustee has been appointed under section 59B(7) as agent of the resident foreign trustees for the purposes of section 59B and the Commissioner has been notified of the appointment.
182B Employers and officers
After section 147 (2B) A natural person is not liable under this section in relation to an offence by a resident foreign trustee that is a body corporate if section 147B imposes liability for an offence relating to the offence of the resident foreign trustee.
147B Directors and officers of resident foreign trustee
(1) A natural person who is resident in New Zealand commits an offence
against this Act if---
(a) the natural person, in relation to a resident foreign trustee that is not a natural person, is---
(i) a director of the resident foreign trust:
(ii) in a position in the resident foreign trustee allowing significant influence over the management or administration of the resident foreign
trustee; and
(b) the resident foreign trustee commits an offence against section 143A (principal offence); and
(c) the cause of the principal offence was---
(i) an act done or carried out by the person:
(ii) an omission of the person:
(iii) through knowledge attributable to the person.
Client agrees to fully cooperate with trustee.net.nz ltd to enable trustee.net.nz ltd to fully comply with the NZ Taxation Depreciation, Payment Dates Alignment, FBT, and Miscellaneous Provisions Act 2006 and secure that the trust to be formed by the client shall be a fully compliant NZ Qualifying Resident Foreign Trust.