1. The Consultant will exercise reasonable skill, care and diligence normally exercised by consultants in similar circumstances subject to any financial, physical, time or other restraint imposed by the Client or necessarily resulting from the nature of the project.
2. The Client will provide as soon as practicable, free of cost, all information reasonably required to enable the Consultant to perform the Services. Unless verification is part of the Services, the Consultant will be entitled to assume and rely on the accuracy and completeness of all information provided directly or indirectly by the Client or obtained by the Consultant from public or other reasonable sources.
3. The content of any written report or other work prepared by the Consultant is confidential and has been prepared solely for the Client and shall not be relied upon by any third parties. The Consultant accepts no responsibility for anything done or not done by any third party in reliance, whether wholly or partially, on any of the contents of the Consultant’s advice.
4. Both parties shall keep all commercially-sensitive information obtained by them in the context of the Agreement confidential and shall not divulge it without the written approval of the other party.
5. The Consultant has no responsibility for or liability of costs, loss or damage arising from:
a. Any errors or omissions from data, documents etc, not prepared by the Consultant, or the Consultant’s employees or other persons under the direct control of the Consultant.
b. Any act or omission or lack of performance or any negligent or fraudulent act or omission by the Client or any other consultant, contractor or supplier to the Client, or any employee or agent of the Client, other consultant, contractor or supplier.
6. The Client will pay to the Consultant the amount of fees and disbursements at the times and in the manner set out in the Fees section of this Agreement. Invoices will be issued on a monthly basis for any costs incurred to that date. Payment is due 7 days after the date of invoice, however, in the case of Final Invoices payment is required in full before release of the report to the Client.
7. Any recoverable expenses such as incidental goods and/or services, additional to the above quotation will be on the basis of cost to the Consultant, plus 15% margin for handling.
8. Accounts not paid by the due date shall be subject to an interest charge of 1.5% of the total amount owing for each calendar month the account is overdue. The Client will pay all costs and expenses incurred by the Consultant in relation to recovering any money owed by the Client (including legal costs on a solicitor/client basis and the Consultant’s internal time and administration costs).
9. If the Client defaults on any payment due and the default continues for a period of 14 days, the Consultant may give written notice to the Client specifying the default and requesting payment within 7 days of the date of service of the notice. If the Client fails to remedy the default within that period, the Consultant may suspend all or part of the Services or terminate this Agreement without further notice, and the Consultant will not be liable for any damage or loss arising directly or indirectly in connection with those parts of the Services to which the payment default arises.
10. Where this Agreement has been entered into by an agent on behalf of the Client (or a person purporting to act as agent), the agent and the Client will be jointly and severally liable for payment of all amounts due to the Consultant under this Agreement.
11. Where the Client is a company, the person named overleaf as the authorised signatory of the Client hereby irrevocably guarantees the punctual payment of all amounts owed by the Client to the Consultant and acknowledges this guarantee may be enforced directly by the Consultant without first needing to pursue remedies against the Client.
12. The Client shall not make claim against any individual employee or employees of the Consultant for any costs, losses or damages sustained by the Client arising from this project.
13. This agreement will continue until all the Services have been performed unless terminated earlier by the parties’ agreement, by the Consultant under clause 9, or by a party following the other party’s failure to remedy a material breach of this Agreement.
14. No claim for damage, loss or expense arising directly or indirectly in connection with the Services will be brought more than 6 years after the date of this Agreement or brought against any individual employee, director, officer or agent of the Consultant. Any liability of the Consultant for damages, costs or other legally payable amounts arising directly or indirectly in connection with the Services (whether in contract, tort or otherwise) will be limited in aggregate to the lesser of five times the value of the fees paid for the Services or NZ$100,000.00. The Consultant will only be liable to the Client (whether in contract, tort or otherwise) for damage or loss directly caused by the Consultant’s breach or default and will not be liable for any loss of profits or any indirect or consequential losses of any nature. In addition, any liability of the Consultant will be limited to only that portion of the damage or loss directly caused or contributed to by the Consultant. The provisions of this clause will apply to the maximum extent permitted by law, and will confer to any extent relevant a benefit on any individual employee, director, officer or agent of the Consultant.
15. Where the project to which the Services relate is staged with separate services agreements with the Consultant and/or concerns a building or buildings with multiple owners, the aggregate liability limitation in clause 14 will apply in the aggregate to every stage and to all owners as if there was one Client owner and/or one services agreement with the Consultant for all stages.
16. The Client agrees to indemnify the Consultant against any liability or costs incurred by the Consultant as a result of any breach of the Agreement by the Client.
17. The Consultant reserves all copyright in any report or other written advice prepared by the Consultant for the Client. The Managing Director’s written consent must be obtained before:
a. Any extract or abridgement of the report is published;
b. The report is used in or referred to in connection with any company prospectus or publicly issued report;
c. Any statement is made that the item is the subject of a report by the Consultant.
18. The provision of any services or the issue of a report does not imply approval by the Consultant of any particular purpose and therefore no statement or advertising shall state or imply approval by the Consultant.
19. The Consultant shall not be liable for the commercial performance of the project or any of the consequences of the Client’s commercial decisions, nor shall the Consultant be held to have given or implied any warranty as to the commercial performance of the project.
20. The terms and conditions of the Agreement are to be read in conjunction with any conditions, assumptions or limitations contained in the report or other written advice prepared by the Consultant.
21. Nothing in the Agreement shall be construed as limiting the ability of the Consultant to offer the same or similar services to any other person or organisation.
22. If the Services are required for the purpose of a business, the provisions of the Consumer Guarantees Act 1993 will not apply to the Services.
23. The Consultant will not assume any obligations as the Client’s agent or otherwise which may be imposed on the Client under the Health & Safety in Employment Act 1992 arising out of this Agreement. The parties agree that for the purposes of that Act, the Consultant will not be the person who controls the place of work.
24. Disputes between the Consultant and the Client shall be referred in the first instance to mediation and thereafter any unresolved disputes shall be referred to arbitration in accordance with the Arbitration Act 1996. This clause will not apply to a recovery claim by the Consultant for any money owed by the Client.
25. The parties agree that the laws of New Zealand shall govern the rights and obligations of the Client and the Consultant in relation to this Agreement.