Non Refundable Retainer Agreement Template for New Zealand
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What is a Non Refundable Retainer Agreement?
This Non-Refundable Retainer Agreement is designed for use in professional service arrangements within New Zealand where a service provider requires an upfront, non-refundable payment to secure their services or availability. The document is particularly relevant when establishing ongoing professional relationships that require dedicated time commitments or resource allocation. It includes comprehensive provisions for service scope, payment terms, and party obligations, while ensuring compliance with New Zealand legislation including the Contract and Commercial Law Act 2017, Fair Trading Act 1986, and relevant professional services regulations. This agreement type is commonly used by consultants, legal professionals, and other service providers who need to secure client commitments while protecting their business interests.
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About the Non Refundable Retainer Agreement
A non-refundable retainer agreement is a specialized contract that secures professional services through an upfront payment that cannot be returned to the client under any circumstances. This legal arrangement provides certainty for both service providers and clients by establishing clear financial commitments and service expectations from the outset of the professional relationship.
When do you need this document?
You'll need a non-refundable retainer agreement when engaging professional services that require significant time allocation or resource commitment upfront. This includes situations where consultants must decline other opportunities to prioritize your project, when legal professionals need to conduct extensive preliminary research, or when specialized expertise requires immediate availability. The agreement is particularly valuable for ongoing advisory relationships, project-based consulting, or any professional service where the provider must reserve capacity or invest substantial effort before delivering primary deliverables.
Key legal considerations
The most critical aspect is ensuring the non-refundable clause is clearly communicated and legally enforceable under New Zealand contract law. You must explicitly state what services the retainer covers, distinguish between retainer fees and additional charges, and define circumstances that might affect the professional relationship. Consider including provisions for service delivery timelines, communication protocols, and intellectual property ownership. The agreement should address what happens if either party breaches the contract, how disputes will be resolved, and whether the retainer applies toward final billing or represents separate consideration for service availability.
Legal requirements in New Zealand
Under the Contract and Commercial Law Act 2017, your retainer agreement must meet basic contractual requirements including offer, acceptance, consideration, and intention to create legal relations. The Fair Trading Act 1986 requires that the non-refundable nature be clearly disclosed without misleading or deceptive conduct, meaning you cannot hide this crucial term in fine print. For consumer clients, the Consumer Guarantees Act 1993 may apply, requiring services to meet reasonable quality standards regardless of the retainer's non-refundable status. GST obligations under the Goods and Services Tax Act 1985 must be clearly addressed, including proper tax invoicing for retainer payments. Privacy Act compliance is essential when handling client information, and professional service providers must ensure their retainer terms don't conflict with industry-specific regulations or professional conduct rules.
GOVERNING LAW
Applicable law
This Non Refundable Retainer Agreement is drafted to comply with New Zealand law. Key legislation includes:
Fair Trading Act 1986: Ensures fair trading practices and prohibits misleading or deceptive conduct in trade. Relevant for clearly communicating the non-refundable nature of the retainer and service terms.
Consumer Guarantees Act 1993: Although this might have limited application in B2B contexts, it's important for retainer agreements with individual consumers as it provides statutory guarantees for services.
Goods and Services Tax Act 1985: Relevant for tax implications and proper invoicing requirements for the retainer payments.
Privacy Act 2020: Important for handling any personal information collected during the course of the retainer relationship.
Financial Transactions Reporting Act 1996: May be relevant if the retainer involves significant financial transactions or professional services that fall under anti-money laundering regulations.
Contractual Remedies Act 1979: While largely superseded by the Contract and Commercial Law Act 2017, some principles may still be relevant for understanding remedies in case of breach.
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