Terms and Conditions of Engagement
The terms and conditions set out below govern the supply of services from Emmitt Consultants Limited (“we”, “us”, “our”) to the Client (“you”, “your”). In the absence of your signed acceptance, your instructions to us to commence work indicates your acceptance of these terms and conditions.
1.1. In this Agreement, unless the context requires otherwise: “Agreement” means these Terms and Conditions of Engagement together with the Services Agreement entered into between you and us for the relevant Services; “Completion Date” has the meaning given on the front page to this Agreement; “Force Majeure Event” means an event or occurrence which is beyond our reasonable control (including, without limitation, any natural disaster); “GST” means goods and services tax; “Insolvency Event” means, in relation to an individual, the customer is adjudicated bankrupt, and, in relation to an entity, where the customer is unable to pay its debts as they fall, a receiver is appointed to the customer, the customer goes into liquidation, administration or some other form of insolvency administration whether formal or informal, the customer ceases to carry on business or the customer enters into a scheme or compromise with its creditors; “Intellectual Property” means all trademarks, patents, copyrights, designs (including rights of drawings, calculations, models, samples, descriptions, figures and dimension specifications) and any other intellectual property owned or used by us, whether registered or unregistered; “Price” means the amount specified on the front page to this Agreement; ”Service Interruption Event” means any interruption to the performance of the Services caused by a Force Majeure Event, your failure to perform any of your obligations under this Agreement and any other event which will, in our reasonable opinion, cause a delay to our performance of the Services; “Services” has the meaning given on the front page of the Services Agreement; “Site” has the meaning given on the front page of the Services Agreement.
2. Provision of the Services
2.1. We will use our reasonable endeavours to perform the Services by the Completion Date but will not be liable for any consequences of any delay in performance of the Services.
2.2. In performing the Services, we will exercise the reasonable skill, care and diligence of a competent member of our industry or profession.
2.3. The Services and any information or documentation provided to you in relation to the Services are provided solely to you for your own use for the purpose stated at the time of engaging us to perform the services, and may not be used for any other purpose or relied on by any other party without our prior written consent.
3.1. You may request in writing that we vary the scope of the Services. If we accept a proposed variation, we reserve the right to vary the Price and/or the Completion Date.
3.2. We may, by providing notice in writing to you, vary the scope of the Services, the Price of the Services and/or the Completion Date, including when:
a) you request that we vary the scope of the Services in accordance with clause 2.1 of this Agreement;
b) any plans, specifications or information provided by you which we relied on to prepare the scope of the Services and the Price for the services is inaccurate or unreliable; and
c) conditions outside of our control cause delays to the commencement and/or completion of the Services or increases to the cost of goods or services included in the scope of Services.
3.3. Any variation agreed to by us forms part of this Agreement.
4. Price and payment
4.1. The Price to be paid by you for the Services will be set out on the front page to this Agreement (subject to any variation). All prices are exclusive of GST unless stated otherwise.
4.2. We may, with your written consent, purchase any incidental goods and or services that are reasonably necessary to perform the Services. The cost of such goods and services is not included in the Price and is payable by you.
4.3. You will pay the Price, any additional costs owing to us under this Agreement and all applicable amounts of GST, to us immediately upon receipt of an invoice from us for such amounts (or, if a different date is specified on that invoice for payment, on that date).
4.4. You agree to pay the full invoice sum without deduction and you will not withhold any payment or reduce or defer any payment on account of any claim, counter-claim, set off or otherwise.
4.5. If you have not paid in full by the due date, we may at our discretion charge you interest compounding monthly on the unpaid overdue balance at the rate of 2% per annum above our bank’s then-current overdraft rate.
4.6. You will pay all costs incurred by us in the recovery or attempted recovery of any debt you owe us, including but not limited to collection costs, legal costs (on a solicitorclient basis) and/or court costs. These costs will be added to the amount you owe us.
5. Provision of information and access
5.1. You agree to provide us with:
a) as soon as practicable following a request from us, all information (including, without limitation, plans and specifications) necessary for us to perform the Services; and
b) access to the Site from the commencement date to the Completion Date in order to perform the Services.
5.2. Unless we otherwise agree in writing, you agree to be responsible for obtaining, paying for and maintaining all permits, approvals, authorisations, licences and consents of all regulatory authorities which are or may be necessary or advisable in connection with our performance of the Services.
5.3. You warrant that all information provided to us is true, correct and complete in all material respects and that you will promptly notify us of any [material] changes to that information.
5.4. We may rely on any information provided by you without independently verifying that information (unless you expressly instruct us to undertake such verification).
5.5 We will comply with the provisions of the Privacy Act 1993 in collecting and/or using personal information from or about you. On that basis, you authorise us to use such personal information for the purposes of credit and debtor management, administration, providing the Services and our own marketing purposes.
5.5. We have in place a Health & Safety Management Plan (the “Plan”) and we will comply with the Plan on the Site.
5.6. You acknowledge that we are not the “person who controls a place of work” as that term is defined in the Health and Safety in Employment Act 1992 in relation to the Site and the Services.
6. Interruption of Services
6.1. Without prejudice to any rights or remedies that we may have, you acknowledge that from time to time a Service Interruption Event may occur and, in that case, such occurrence may delay the Services and we will have a right to cease performing the Services until the Service Interruption Event ends or is remedied (as the case may be).
6.2. Where we incur any additional costs as a result of a Service Interruption Event, such costs are payable by you in accordance with clause 4.3.
7. Intellectual Property and Confidentiality
7.1. You acknowledge that all of our Intellectual Property, including all materials produced by us in performing the Services, at all times remains our sole and exclusive property.
7.2. You cannot use, copy, reproduce, modify, publish or transmit any of our Intellectual Property unless you have our prior written consent.
7.3. You agree that you will not disclose to any third party, reproduce or permit the reproduction of any materials or any part thereof (including this Agreement) produced by us in providing the Services to you unless you have our prior written consent or disclosure is required by law or the materials (or any part thereof) are already in the public domain.
7.4. This clause survives termination of this Agreement.
8. Construction Contracts Act 2002 (“CCA”)
8.1. Should the Construction Contracts Act 2002 apply to us in performing the Services, we are entitled to exercise any powers available to us under the CCA.
9. Consumer Guarantees Act 1993 (“Act”)
9.1. Where we supply goods or the Services to you as a “consumer” as that term is defined in the Act, then the Act will apply and will prevail over any contrary provision in this Agreement.
9.2. Where we supply goods or the Services to you for the purposes of a business, then you agree that the Act does not apply.
9.3. Where we supply goods or services to you that you then supply on to a “consumer” that is acquiring goods or services for the purposes of a business, then you agree that you will supply the goods or services on terms or conditions that exclude liability for any claims under the Act to the extent permitted by law. You indemnify us against any liability of cost, loss, damage or claim arising in any way as a result of your failure to comply with this provision.
10. Limitation of liability and indemnity
10.1. We are not liable to you under any circumstances for any indirect, special, incidental or consequential loss or damage or loss of profit, however arising, and whether in contract, tort or otherwise.
10.2. Without prejudice to clause 10.1, if for any reason we become liable to you, our maximum aggregate liability to you in respect of all losses arising under or in connection with this Agreement (whether arising in contract, tort (including negligence), statute or otherwise) will in no circumstances exceed NZD$[100,000] or an amount equal to five times the value of fees charged by us under this Agreement (exclusive of GST and disbursements), whichever is the lower amount.
10.3. You agree to indemnify us from and against any damages, claims, losses, demands, liabilities (including vicarious liability), injuries, suits, actions, judgements, costs and expenses (including legal fees) arising out of or in any way connected with your breach of this Agreement.
10.4. This clause survives termination of this Agreement.
11.1. We may terminate this Agreement by written notice to you if:
a) you fail to pay us in accordance with this Agreement;
b) you default in performing any of your obligations under this Agreement and the default is not capable of being remedied or, if the default is capable of being remedied, is not remedied within seven days of notice from us that specifies the default and requires remedy; or an Insolvency Event occurs.
11.2. We are not liable to you or responsible for any loss or damage of any kind that may result directly or indirectly from our termination of this Agreement.
11.3. You may terminate this Agreement or request that we suspend the Services by providing written notice to us. We will take reasonable steps to terminate or suspend the Services on receipt of a notice requesting termination of this Agreement or suspension of the Services.
11.4. On any termination or suspension under clause 8.3, you are liable to pay us:
a) for all costs, fees, expenses and other liabilities incurred by us up to and including the date of receipt of notice from you terminating or suspending the Services; and
b) any reasonable costs that we incur as a result of early termination or suspension.
12.1. Any party that claims that a dispute exists under or about this Agreement must give written notice to the other party specifying the nature of the dispute and, on receipt of such a notice by the other party, the parties must (subject to clause 12.3):
a) co-operate and use their reasonable endeavours to resolve the dispute; and
b) if not resolved within seven days of the receipt of a notice, refer the dispute to mediation.
12.2. Any mediation will be conducted in terms of the LEADR New Zealand Incorporated. Standard Mediation Agreement and will be conducted by a mediator and at a fee selected by the parties. If the parties fail to agree on a mediator and/or a fee, the mediator and the mediator’s fee will be decided by the Chair at the time of LEADR New Zealand Incorporated.
12.3. Notwithstanding clause 12.1, should the CCA apply to this Agreement, the parties may also utilise any dispute resolution procedures or processes available under the CCA.
13.1. These terms and conditions are paramount and, to the extent that there is any conflict between any provision of these terms and conditions and any other document or arrangement, these terms and conditions and this Agreement will prevail.
13.2. This Agreement contains all terms of the arrangement between the parties and supersedes and extinguishes all prior agreements, discussions, representations between the parties.
13.3. If we fail to enforce any terms or to exercise any right under the Agreement at any time, we have not waived that right.
13.4. We may assign our rights under this Agreement. You will not assign any of your rights or obligations under this Agreement unless you have our prior written consent.
13.5. If any provision of the Agreement is held to be invalid or unenforceable for any reason, the remaining provisions shall remain in full force and effect and the parties shall adjust their respective rights and obligations in accordance with the spirit and intent of the parties as shown by the Agreement.
13.6. We reserve the right to vary these terms and conditions by written notice to you from time to time.