1. Definitions
| “Assignment” | means a piece of work to be undertaken by the Consultant under the terms of this agreement. |
| “Confidential Information” | means all information about the parties, including: any information which may give a commercially competitive advantage to any other person. It includes among other things: information about staff, their performance and their personal contact information, data or information relating to suppliers, product plans, marketing strategies, finance, performance, operations, customer relationships, customer profiles, sales estimates, business plans; information about the Intellectual Property and all aspects of the technology of a party; information created or arising from this agreement; information owned by a third party and in respect of which aparty has an obligation of non-disclosure. information, comment or implication published on any Internet social medium. It does not include information that is reasonably necessary to disclose to a customer or other person in the usual course of business so far as that information is disclosed in those circumstances. |
| etailed Specification” | means a specification of work to be done under the Assignment. |
| “Fee” | means all money payable by the Client to the Consultant, however described, for work on the Assignment. |
| “Intellectual Property” or “IP” | means intellectual property of every sort, whether or not registered or registrable in any country, including intellectual property of kinds coming into existence after today; and including, among others, patents, trademarks, unregistered marks, designs, copyrights, software, domain names, discoveries, creations and inventions, moral rights, together with all rights which are derived from those rights. |
2. Interpretation
In this agreement unless the context otherwise requires:
- a reference to one gender shall include any or all genders and a reference to the singular may be interpreted where appropriate as a reference to the plural and vice versa.
- a reference to a person includes reference to that person’s successors, legal representatives, permitted assigns and any person to whom rights and obligations are transferred or pass as a result of a merger, division, reconstruction or other re-organisation involving that person.
- the headings to the paragraphs to this agreement are inserted for convenience only and do not affect the interpretation.
- any agreement by any party not to do or omit to do something includes an obligation not to allow some other person to do or omit to do that same thing.
- all money sums mentioned in this agreement are calculated net of GST, which will be charged when payment is due.
- this agreement is made only in the English language. If there is any conflict in meaning between the English language version of this agreement and any version or translation of this agreement in any other language, the English language version shall prevail.
3. Entire agreement
- This agreement contains the entire agreement between the parties and supersedes all previous agreements and understandings between the parties.
- Each party acknowledges that, in entering into this agreement, it does not rely on any representation, warranty, information, document or other terms not forming part of this agreement.Conditions, warranties or other terms implied by statute or common law in any country are excluded from this agreement to the fullest extent permitted by law.This agreement has been drawn with reference to a single Assignment. However, the parties intend, and now agree that all the terms shall apply so far as reasonably possible to any second or further assignment or series of assignments which the parties agree shall be performed under these terms.
- Any further terms that may be relevant and applicable will be provided during the tendering process, by way of any Construction Contract or in the consultation or solution report or document.
- In order to apply these terms to a second or further assignment or a series of assignments, a reference to this agreement shall be made in the document setting out the requirements of the assignment.
4. Warranties for authority
- Each party warrants that it has power to enter into this agreement and has obtained all necessary approvals to do so.
- The Consultant warrants and undertakes that it is not aware of anything within its reasonable control, which might or will adversely affect its ability to fulfil its obligations under this agreement.
- The Client warrants that it is not insolvent and knows of no circumstance which would entitle any creditor to appoint a receiver or to petition for winding up or to exercise any other rights over or against its assets.
5. Consultant’s status
- The Consultant is not a partner, agent or employee of the Client and does not have authority to enter into any commitment on behalf of the Client.
- The Consultant agrees that it will be responsible for its own income and other tax liability and ACC levy in respect of its Fees and it hereby agrees to indemnify the Client in respect of any claim that may be made by any tax authority against the Client in respect of income or other tax or ACC levy relating to the Consultant’s services under this agreement.
- The Consultant shall alone be responsible for payment of all taxes due on its own compensation except sales taxes, and payment of all taxes applicable to payments made to its partners, agents or employees under this agreement.
6. Contract summary and payment
- The Consultant shall commence work on the Assignment on date provided by way of communication or agreement.
- The Client will pay for work by each person designated as a senior consultant at the rate of $189.00 – $400.00 per hour, and consultants assistant at the rate of $65.00 per hour. A retainer on the basis of an estimate provided to the client will be payable prior to commencing any form of consulting.
- After the end of each month, the Consultant will send an invoice to the Client for work done during that month.
- Each invoice submitted to the Client for time charged by the hour shall contain a breakdown in respect of the time spent by each person.
- The invoice shall include whatever reasonable expenses the Consultant has incurred in working on any Assignment provided such expenses have been approved in advance by the Client.
- The Consultant may charge for any reasonable costs incurred as a result of any delay caused by the Client or any circumstance controlled by the Client.
- Payment of the sum specified in the invoice will be made by the Client within 7 days of date of sending the invoice. Failure to make timely payment shall entitle the Consultant to stop all work for the Client, including work regulated by any other agreement.
- The Consultant shall be entitled after 28 days notice to the Client and not more than once in every 12 months to increase the rates for work charged by the hour.
- The Consultant reserves the right to charge the Client interest in respect of the late payment of any money due under this agreement (both before and after judgment) at the rate of five percent above the cash rate from time to time of the Reserve Bank of New Zealand from the due date until receipt of payment.
- Banking charges by the receiving bank on payments to the Consultant will be borne by the Consultant. All other charges relating to payment in a currency other than New Zealand dollars will be borne by the Client.
7. Representative liaison
- With effect from today, the Consultant and the Client will each nominate a representative who will be authorised to make decisions relating to the Assignment and who will be responsible for:
- organising monthly meetings at which they will review the progress of the Assignment;
- providing all information and documentation reasonably required by the other of them to enable completion of the Assignment.
- Each month the Consultant will prepare a progress report on the progress of the work on the Assignment and will deliver it to the Client’s representative at least [three] days before each meeting.
- The Consultant will provide a document setting out detailed practical requirements as required from time to time. The Client agrees to do its utmost to comply with the requirements of that document.
8. Consultant’s obligations
- The Consultant agrees to provide a staff of an appropriate level of skill and experience to work on the Assignment.
- The Consultant agrees that whilst engaged in any Assignment on the premises of the Client, it will comply with:
- all laws and regulations relating to the employment of staff and health and safety at work;
- the specific regulations of the Client as applicable to its employees.
- The Consultant agrees that whilst engaged in any Assignment on the premises of the Client, it will comply with:
9. Use of sub-contractors
If the Consultant wishes to perform any or all of its obligations under this agreement through agents or sub-contractors, the following provisions apply:
- the Consultant must first obtain the written consent of the Client to the name and identity of any sub-contractor. The Client is under no obligation to give consent nor to give any reason for the refusal.
- this contract / the Assignment shall be performed entirely by Anita Menzies and Charles Seneviratne as employee of the Consultant.
- so far as work under this contract is sub-contracted to others, it shall be supervised personally by Anita Menzies as employee of the Consultant.
- the Consultant shall not sub-contract any part of its obligations under this contract to a third party.
10. Confidentiality
- The parties are aware that in the course of the performance of the Assignment they will each have access to and be entrusted with Confidential Information of the other. Accordingly, they undertake in respect of Confidential Information of the other of them, that both during and after completion of the Assignment, they will:
- except as provided in this agreement, not divulge to any person whatever, or otherwise make use of (and will use its best endeavors to prevent the publication or disclosure of) any trade secret or Confidential Information;
- not use the Confidential Information in any way for itself or any other person, except in a way that is authorised by this agreement or by the proper authority of the other of them;
- not store, copy, or use the Confidential Information in any place or in any electronic form which may be accessible to any other person except where it is a legal obligation.
- keep all records of the Confidential Information in all media separate from other records;
- keep all records only at the address as specified above (and in particular not to take records in electronic form to any other place);
- make all relevant employees, agents and sub-contractors aware of the confidentiality of Confidential Information and the provisions of this paragraph and take all such steps as from time to time may be necessary to ensure compliance by those people with these provisions.
- The Consultant agrees that before it permits any employee or contractor or other person to have access to any Confidential Information, it will enter into an agreement / contract of employment, binding any such person to the matters of confidentiality provided for in this paragraph.
11. Intellectual Property
- This agreement shall have no effect on the ownership of Intellectual Property existing at the date of this agreement.
- The Consultant may use whatever Intellectual Property of the Client that the Consultant sees fit to provide the client with fit for purpose consulting and solutions.
- The Consultant shall use and contribute to the Assignment such Intellectual Property as is appropriate and reasonable in the context that the selection and appointment of the Consultant by the Client was influenced by representations and reputation of the Consultant in fields of knowledge associated with the Assignment.
- During and after completion of the Assignment and unless otherwise specified in this agreement, ownership of Intellectual Property arising out of the Assignment, shall be as follows:
- IP concepts created by the Consultant but not incorporated in any goods, service or system of the Client, belong to the Consultant. This applies even when the Client has paid the Consultant for production of such IP.
- IP work incorporated in any goods, service or system of the Client, belong to the Client.
- IP elements previously developed by the Consultant belong to it even if incorporated into any goods, service or system of the Client.
- In the event that the Consultant creates, acquires or develops any new Intellectual Property (including moral rights) relating to the Assignment, it now grants to the Client a worldwide, royalty-free, exclusive licence to that Intellectual Property. A licence granted under this provision shall include the right to grant sub-licenses worldwide, under any payment term or royalty-free.
- On termination of this agreement each party shall:
- deliver up to the other party all media containing Intellectual Property provided by the other party.
- within seven days destroy any Intellectual Property created for the purposes of this agreement which embody any of the Intellectual Property of the other party to this agreement.
- If either party believes that any third party is infringing any Intellectual Property rights it shall notify the other party of such belief. If either party wishes to take action against any third party for infringement of any of that party’s Intellectual Property rights it shall give notice of such proposed action to the other party.
12. Limitation of liability
- The law differs from one country to another. This paragraph applies so far as the applicable law allows.
- All implied conditions, warranties and terms are excluded from this agreement. If in any jurisdiction an implied condition, warrant or term cannot be excluded, then this sub paragraph will be deemed to be reduced in effect, only to the extent necessary to release that specific condition, warranty or term.
- The Consultant shall not be liable to the Client for loss arising from or in connection with any representations, agreements, statements or undertakings made prior to the date of this agreement.
- The Consultant gives no warranty that any particular result or outcome is achievable or attainable by a given date or at all.
- The Consultant shall not be liable to the Client for any loss or expense which is:
- indirect or consequential loss; or
- economic loss or other loss of turnover, profits, business or goodwill; or
- loss or damage suffered by the Client as a result of an action brought by a third party.
The above provisions apply even if such loss was reasonably foreseeable or the Consultant had been advised of the possibility of the Client incurring it.
- Except in the case of death or personal injury, the total liability of the Consultant under this agreement, however it arises, shall not exceed the sum of $ 10,000. This applies whether your case is based on contract, tort or any other basis in law.
- This paragraph (and any other paragraph which excludes or restricts the liability of the Consultant) applies to the Consultant’s directors, officers, employees, subcontractors, agents and affiliated companies (who may enforce this clause under the Contract and Commercial Law Act 2017) as well as to Consultant itself.
13. Duration and termination
- Work on the Assignment shall commence on (date indicated by way of communication) shall continue until terminated:
- by completion of the Assignment and payment to the Consultant; or
- by one party giving 28 days’ notice of termination to the other; or
- immediately by the Consultant if the Client fails to pay any sum due within 7 days of the date of submission of an invoice having been notified of non-payment by the Consultant; or
- immediately by either party if the other commits any material breach of any term of this agreement and which in the case of a breach capable of being remedied is not remedied within 30 days of a written request to remedy it; or
- immediately if either party is declared bankrupt or insolvent; or has taken or suffered any action for its organisation, liquidation, winding up or dissolution; or had a receiver or liquidator appointed for all or any part of its assets or business;
- immediately if the Consultant is or becomes incompetent or negligent in respect of any of its obligations under this agreement or in respect of any Assignment; or
- the Consultant refuses to carry out the work reasonably and properly required of it under this agreement.
- Notwithstanding termination of this agreement for whatever reason, all the provisions that are intended to operate or have effect after termination or expiration shall continue in full force and effect.
- Without regard to the reason why this agreement ends, the Client will pay the Consultant for all work done to the time the notice of termination is received by the Consultant, calculated to the nearest one hour.
14. Assignment of this agreement
Neither party may assign, delegate, sub-contract, mortgage, charge or otherwise transfer any or all of its rights and obligations under this agreement without the prior written consent of the other party, except thata party may assign and transfer all its rights and obligations under this agreement to any person to which it transfers all of its business, provided that the assignee undertakes in writing to the other party to be bound by the obligations of the assignor under this agreement.
15. Indemnity
- Except in the case of negligence or dishonesty on the part of the Consultant, its servants or Managers, the Client agrees to indemnify and save harmless the Consultant from any and all liability and for all claims and demands arising out of damage or injuries to persons or property, and the Consultant will defend at the expense of the Client all suits which may be rendered against the Consultant on account thereof; provided that nothing in this sub-paragraph shall release the Consultant from any liability to the Client in respect of any breach of the Consultant.
16. Uncontrollable events
- Neither party shall be liable for any failure or delay in performance of this agreement which is caused by circumstances beyond its reasonable control, including any labour dispute between a party and its employees.
- A termination notice is irrevocable unless both parties agree to re-instate this agreement.
- If the agreement is terminated, all money due from one party to the other becomes due immediately
- Costs arising from the delay or stoppage will be borne by the party incurring those costs;
- The party claiming the uncontrollable event will take all necessary steps to perform this agreement despite the uncontrollable event.
17. Miscellaneous matters
- The Consultant undertakes to provide to the Client its current land address, e-mail address and telephone numbers as often as they are changed
- No amendment or variation to this agreement is valid unless in writing, signed by each of the parties or its authorised representative.
- The parties acknowledge and agree that this agreement has been jointly drawn by them and accordingly it should not be construed strictly against either party.
- So far as any time, date or period is mentioned in this agreement, time shall be of the essence.
- If any term or provision of this agreement is at any time held by any jurisdiction to be void, invalid or unenforceable, then it shall be treated as changed or reduced, only to the extent minimally necessary to bring it within the laws of that jurisdiction and to prevent it from being void and it shall be binding in that changed or reduced form. Subject to that, each provision shall be interpreted as severable and shall not in any way affect any other of these terms.
- The rights and obligations of the parties set out in this agreement shall pass to any permitted successor in title.
- Any obligation in this agreement intended to continue to have effect after termination or completion shall so continue.
- No failure or delay by any party to exercise any right, power or remedy will operate as a waiver of it nor indicate any intention to reduce that or any other right in the future.
- The parties agree that electronic communications satisfy any legal requirement that such communications be in writing.
- Any communication to be served on either of the parties by the other shall be delivered by hand or sent by express post or recorded delivery.
| It shall be deemed to have been delivered: |
| if delivered by hand: on the day of delivery; |
| if sent by post to the correct address: within 72 hours of posting; |
- In the event of a dispute between the parties to this agreement, then they undertake to attempt to settle the dispute by engaging in good faith with the other in a process of mediation before commencing arbitration or litigation.
- This agreement does not give any right to any third party under the Contract and Commercial Law Act 2017 or otherwise, except that any provision in this agreement which excludes or restricts the liability of the directors, officers, employees, subcontractors, agents and affiliated companies of a party, may be enforced under that Act.
- In the event of any conflict between any term of this agreement and the provisions of the constitution of a limited company or any comparable document intended to regulate any other corporate or collective body, then the terms of this agreement shall prevail.
- Each party shall bear its own legal and other costs and expenses arising in connection with the negotiation and drafting of this agreement.
- This agreement may be executed in multiple counterparts each of which shall be considered an original and all or anyone of which constitute one and the same instrument.
- The validity, construction and performance of this agreement shall be governed by the laws of New Zealand, and the parties agree that any dispute arising from it shall be litigated only in that country.