SOUTHPAC GROUP LIMITED: TERMS AND CONDITIONS
Effective Date: 30 September 2023
The following Terms and Conditions apply between Southpac Group (as defined in paragraph A) and any person falling within the definition of ‘Customer’ in paragraph A, and shall govern the Services offered by Southpac in respect of any Entity.
A. Unless the context otherwise provides:
(i) “Customer” includes, but is not limited to:
a. the Settlor or Ultimate Beneficial Owner of a trust;
b. the Member, Shareholder or Ultimate Beneficial Owner of a company;
c. the Founder or Ultimate Beneficial Owner of a foundation in respect of which Southpac provides Services, and
d. any other person who, either directly or through an attorney, advisor or other referrer, requests Southpac to provide Services in relation to any Entity for their direct or indirect benefit.
(ii) “Entity” includes but is not limited to a trust, company, foundation, partnership or other legal arrangement in respect of which Southpac provides or has previously provided Services.
(iii) “Fees and Charges” includes but is not limited to all applicable fees and charges incurred by Southpac in the provision of Services in relation to an Entity, as set out in Southpac Group’s fee schedule as may be amended from time to time (which is available to Customers on request), or as specified in a Fixed Fee Agreement, and any expenses or disbursements incurred in providing those Services. Southpac Group reserves the right to apply an annual increase to any Fees and Charges based on prevailing rates of New Zealand inflation and will notify Customers of any increase applied. This is without prejudice to Southpac Group’s right to amend Fees and Charges for any other reason.
(iv) “Fixed Fee Agreement” means a written agreement between Southpac Group and the Customer that Southpac will provide such Services in relation to an Entity as may be specified in the agreement to the Customer in return for payment in advance of a single annual fee, which is specified in the agreement. For the avoidance of doubt, a Fixed Fee Agreement does not need to be signed and can be concluded via email correspondence.
(v) “Invoice” means an invoice issued by Southpac Group in respect of the provision of Services in accordance with paragraph O.
(vi) “Services” includes but is not limited to:
a. the establishment and/or renewal of an Entity;
b. the provision by Southpac of trustee, registered agent, corporate management, protector, compliance, account establishment, account maintenance or accounting services in respect of an Entity or as otherwise requested by a Customer;
c. any other services ancillary to the maintenance and operation of an Entity;
d. the termination, dissolution and/or deregistration of an Entity, and the retention and archiving of Entity records following same;
e. the review, execution and filing of tax return documentation in relation to an Entity; and
f. the provision of legal, administrative, financial, investment and Customer liaison services by Southpac Group to a Southpac Affiliate in relation to an Entity.
(vii) “Southpac” means, depending on context, Southpac Group and/or one or more Southpac Affiliates.
(viii) “Southpac Affiliates” refers to Southpac Trust Limited, Southpac Trust Nevis Limited, Southpac Trust NZ Limited, and any of their parent, subsidiary, affiliated or associated entities, trustee companies, protector companies, corporate management companies, nominee companies or affiliated service provider entities, registered or incorporated anywhere in the world.
(ix) “Southpac Group” refers to Southpac Group Limited, a New Zealand limited company whose registered address is Level 1, 399 Cameron Road, Tauranga, 3110, New Zealand.
(x) “Terminated Entity” means an Entity in respect of which Southpac no longer provides ongoing Services to the Customer for reasons including, but not limited to, the dissolution, termination, lapse, deregistration, redomicile, transfer or non-renewal of the Entity.
(xi) “Ultimate Beneficial Owner” means a natural person who owns more than 25% of an Entity; who has contributed more than 25% of the assets held by an Entity to that Entity; who has effective control of an Entity; or on whose behalf transactions are conducted by an Entity.
B. The Customer warrants that, to the best of their knowledge, any funds or assets transferred to, or held or generated by, an Entity do not and will not derive from activities related to money laundering, the financing of terrorism, or any other illegal means or activity.
C. The Customer warrants that the Customer’s sources of wealth do not derive from activities related to money laundering, the financing of terrorism, or any other illegal means or activity.
D. The Customer warrants that they shall not use or allow any person to use, the Entity for the purposes of engaging directly or indirectly in money laundering, the financing of terrorism, or any other illegal means or activity.
E. The Customer warrants that they will comply with all tax reporting requirements to which they are subject as a result of the establishment and maintenance of any Entity.
F. The Customer understands that Southpac is required by law to collect and retain certain personal information relating to the Customer and to other parties involved in the administration of any Entity (including up-to-date proof of identification and residential address), as well as information relating to Entity finances, transactions and activities. The Customer warrants that they will provide to Southpac, when requested, any information in their possession or control that Southpac may require to discharge its legal obligations to collect and maintain such information. The Customer also warrants that they will notify Southpac of any change in their residential address within 30 days of this taking place.
G. The Customer shall promptly inform Southpac if they are being investigated by any government or regulatory authority, are being investigated for or have been charged with any criminal offence, or become a respondent or defendant to any legal proceedings, including but not limited to bankruptcy or divorce proceedings, in which assets transferred by or on behalf of the Customer to the Entity may be at issue.
H. The Customer certifies that all information and supporting documentation provided by them to Southpac in connection with the provision of Services is true and correct in all material aspects. The Customer acknowledges that Southpac provides Services to the Customer on that basis and that Southpac may refuse or cease to provide Services if any information provided by the Customer is found to be false or materially incorrect.
I. The Customer understands that a breach of any of the Customer’s obligations or warranties under these Terms and Conditions may result in the termination of Services by Southpac without further notice to the Customer.
J. The Customer understands that Southpac shall not be liable for any loss or damage arising from the Customer’s lack of capacity to act on their own behalf, unless Southpac has received prior notice in writing of the Customer’s lack of capacity.
K. To the fullest extent permitted by law, the Customer shall upon demand pay, indemnify, defend and hold harmless Southpac (in its own capacity and on trust as agent for the benefit of any other Indemnified Person mentioned below), its successors and assigns and each of its respective officers, directors, employees, counsel, agents and attorneys-in-fact (collectively the “Indemnified Persons”) from and against all claims, liabilities, losses, demands, suits, actions, investigations, proceedings, damages, liabilities, losses, legal fees, settlements, judgments, disbursements and other costs and expenses incurred in connection therewith (as and when they are incurred and irrespective of whether action or suit is being brought), at any time asserted against, imposed upon, or incurred by any Indemnified Person in connection with, as a result of or related to:
(i) any misrepresentation or warranty made by the Customer at the time of procuring Services, whether or not involving a third party claim;
(ii) the misuse of an Entity by the Customer, including the use of an Entity for illegal or unlawful purposes;
(iii) the administration and management by a Southpac Affiliate of an Entity except as a result of actual fraud or wilful default of the relevant Indemnified Person, where “actual fraud” and “wilful default” means a finding to such effect by a competent court in relation to the conduct of the relevant Indemnified Person;
(iv) any electronic communication between the Indemnified Person and the Customer or between the Indemnified Person and any other person in relation to an Entity, except where there has been actual fraud or wilful default on the part of the relevant Indemnified Person, where “actual fraud” and “wilful default” means a finding to such effect by a competent court in relation to the conduct of the relevant Indemnified Person;
(v) losses arising from any transactions in regard to an investment made by a Southpac Affiliate on behalf of, at the request of or for the benefit of the Customer, except for losses arising from Southpac’s own intentional misconduct.
This indemnity shall expressly inure to the benefit of any such person existing or future.
To the fullest extent permitted by law, Southpac shall not be liable for any damages, losses, costs or expenses to the Customer at any time from any cause whatsoever unless caused by Southpac’s own actual fraud or wilful default. Without limitation to the foregoing, Southpac shall not be liable for any direct, indirect, special, incidental or consequential damages arising in connection with the Customer’s use of Services, the Customer accessing or downloading any material from any Southpac website or client portal, the Customer’s receipt of any physical or electronic communication or file transfer from Southpac, losses or expenses arising in connection with the foregoing, or any failure of performance, error, omission, termination, interruption, defect or delay in provision of Services occasioned by any mechanical or communications failure or defect.
The provisions of this paragraph K shall continue to apply notwithstanding the termination, dissolution, lapse or deregistration of any Entity and the termination of the relationship between the Customer and Southpac Group.
L. The Customer acknowledges that they have been advised by Southpac Group to obtain independent legal and/or tax and/or investment advice in connection with the provision of Services, and that the provision of Services by Southpac does not constitute legal, tax or investment advice to the Customer from Southpac.
M. The Customer acknowledges that Southpac Group provides legal, financial, administrative, investment and Customer liaison services to the Southpac Affiliates (but not to the Customer); that Southpac Group is not the agent of any Southpac Affiliate and acts independently of the Southpac Affiliates; that the Southpac Affiliates act independently of Southpac Group and are not under the direction, management or control of Southpac Group; and that Southpac Group is not liable for any proven or alleged default on the part of any Southpac Affiliate in respect of any Entity. The Customer also acknowledges that the acceptance of these Terms and Conditions (and the acceptance of Services pursuant to them) creates a customer relationship between the Customer and Southpac Group only, and not between the Customer and any Southpac Affiliate, notwithstanding any fiduciary relationship which may exist between the Customer and a Southpac Affiliate.
N. Notwithstanding paragraph M, the Customer understands that any rights which may be enforceable by or on behalf of the Customer or any other person pursuant to any written document which exists in relation to an Entity, including but not limited to a trust agreement, operating agreement, articles of association, bylaws, foundation rules, loan agreement, guarantee or promissory note, are enforceable not against Southpac Group but against the Southpac Affiliate which is a party to the written document in question.
O. The Customer acknowledges that:
(i) All Fees and Charges incurred by Southpac in respect of any Entity will be set out in an Invoice issued by Southpac Group which will be sent by email to the Customer, or to an alternative email address with the consent of the Customer, by Southpac Group on the last day of the month in which those Fees and Charges are incurred; except that any Invoice for the establishment, renewal or termination of an Entity, or which relates to Services requested by the Customer in respect of a Terminated Entity, shall be issued in advance of such Services being provided, and are required to be paid prior to such Services being provided. Where Services are requested in respect of a Terminated Entity, any Fees and Charges which have been invoiced previously by Southpac and which remain outstanding must be paid prior to any additional Services being carried out.
(ii) Where the Customer or any person acting on their behalf has previously provided Southpac Group with an Automatic Payment Authority which has not been revoked, Southpac Group will facilitate payment of the Invoice in accordance with the terms of any such Authority.
(iii) Invoices are payable as from the date of issue unless otherwise specified.
(iv) Payment for all Entity renewals must be made and cleared before the expiry of the renewal date of the Entity concerned in order to ensure successful renewal of the Entity.
(v) Southpac may refuse to secure the renewal of an Entity where it has requested any of the information and documentation described in paragraph F and this has not been provided.
(vi)Where more than one Invoice is outstanding in respect of any Entity connected with a Customer, any payments received by Southpac Group from or on behalf of that Customer shall be applied to the oldest outstanding Invoices first. Southpac Group will not prioritise payments for Entity renewals ahead of payments for other Services which have been invoiced prior to the date on which an Invoice for renewal was issued.
(vii) Any disputes regarding an Invoice must be raised in writing within 15 business days of date of the Invoice to: [email protected].
(viii) Without prejudice to any of Southpac Group’s rights and remedies, in the event of late payment or non-payment of any undisputed Invoice Southpac Group may:
a. Suspend or terminate the provision of Services to the Customer; and/or
b. Request any Southpac Affiliate with signatory authority over an account held by the Entity in respect of which the Invoice has been issued, or by any associated Entity, to make payment of the Invoice from that account, without notice to the Customer; and/or
c. Charge one additional unit of administrative staff time to the Entity in respect of which the Invoice has been issued for each attempt made, either by email or telephone, by Southpac Group to contact the Customer or their representative to secure payment of the Invoice; and/or
d. Recover from the Customer all costs incurred by Southpac Group in connection with non payment of the Invoice (including legal costs and costs of recovery of unpaid amounts); and/or
e. Charge penalties and interest at a rate equal to 5% per month on any monies outstanding from the due date until the date of payment, which shall be payable on demand.
P. Where a Fixed Fee Agreement is in place in relation to an Entity:
(i) Only Services specified in the Fixed Fee Agreement are included within the fee specified in the Fixed Fee Agreement and the provision by Southpac of additional Services will incur Fees and Charges;
(ii) Where a Fixed Fee Agreement is expressed as applying to all Services provided in respect of an Entity, and Southpac Group forms the reasonable opinion that as a result of additional Services requested by the Customer after the Fixed Fee Agreement takes effect, it will not be possible or economical to provide the Services requested, Southpac Group may notify the Customer before performing the requested additional Services that the Fixed Fee Agreement will not apply to those Services and that the provision of those Services will incur additional Fees and Charges;
(iii) The Fixed Fee Agreement does not cover expenses and/or disbursements incurred in relation to the Entity and these shall be payable separately;
(iv) Prior to issuing an Invoice for a year’s Services under a Fixed Fee Agreement, Southpac Group may review the fee payable under the agreement and may decide to increase or decrease it, on notice to the Customer; and
(v) A Customer may withdraw from a Fixed Fee Agreement at any time by written notification to Southpac Group. The effect of such a withdrawal is that Services provided in relation to the Entity concerned shall be charged at the rates set out in Southpac Group’s fee schedule.
Q. The Customer agrees that they will at all times treat Southpac staff with all due professional courtesy and respect and understands that abusive communications to Southpac staff will not be tolerated. Southpac Group reserves the right to terminate the provision of Services to any Customer where the Customer or their representative engages by any means in abusive or derogatory correspondence with any Southpac employee, contractor or partner.
R. Southpac Group reserves the right to amend these Terms and Conditions and its Fees and Charges, including by addition or removal. The Customer shall be informed of such amendments and the date on which they shall come into force by Southpac Group notifying the same by email, circular letter, notice on its website (southpacgroup.com), or other appropriate means. Use of Services after the date on which any changes to these Terms and Conditions or Fees and Charges have been notified to the Customer by Southpac Group as coming into effect in accordance with this paragraph R will constitute acceptance by the Customer of any such changes.
T. The governing law of these Terms and Conditions shall be that of New Zealand.
U. Where any term, provision, covenant, condition, warranty or requirement of these Terms and Conditions shall be held by a court of competent jurisdiction to be invalid, unenforceable or void the remainder of these Terms and Conditions shall remain in full force and effect.
V. These Terms and Conditions shall survive any termination of Services.