Rawlinsons Limited (Rawlinsons) shall perform the Services as described in the attached documents. The Client and Rawlinsons agree that the Services are acquired for the purposes of a business and that the provisions of the Consumer Guarantees Act 1993 are excluded in relation to the services.
In providing the Services Rawlinsons shall exercise the degree of skill, care and diligence normally expected of a competent professional.
The Client shall provide to Rawlinsons, free of charge, as soon as practicable following any request for information, all information in their power to obtain which may pertain to the Services. This shall include full tender documentation. Rawlinsons shall not, without the Client’s prior consent, use information provided by the Client for purposes unrelated to the Services. In providing the information to Rawlinsons, the Client shall ensure compliance with the Copyright Act 1994 and any amendments thereto and shall identify any proprietary rights that any other person may have in any information provided.
The Client shall pay Rawlinsons for the Services the amount of fees and expenses at the times and in the manner set out in the attached documents. Where this Agreement has been entered by an Agent (or a person purporting to act as Agent) or on behalf of the Client, the Agent and Client shall be jointly and severally liable for payment of all accounts due to Rawlinsons under his Agreement.
All amounts payable by the Client shall be paid by the twentieth day of the month following the date of invoice. Late payment shall constitute a default and the Client shall pay default interest on overdue amounts from the date payment falls due to the date of payment at Rawlinsons prevailing current account overdraft interest rate plus two percent. Any amount outstanding after six months may be referred for collection. All costs incurred by Rawlinsons in connection with any such collection action shall be borne by the Client.
Where services are carried out on a time charge basis, Rawlinsons may purchase such incidental goods and/or Services as are reasonably required for Rawlinsons to perform the Services. The cost of obtaining such incidental goods and/or Services shall be payable by the Client. Rawlinsons shall maintain records that clearly identify time and expenses incurred.
The liability of Rawlinsons to the Client in respect of his or her Services for the project shall be limited to the greater of five times the value of the fees (exclusive of GST and disbursements) or the sum of $100,000. Rawlinsons acknowledges that Rawlinsons currently holds a policy of Professional Indemnity Insurance for the greater amount of $NZ100,000 or five times the value of the fees (exclusive of GST and disbursements). Rawlinsons undertakes to take all reasonable endeavors to maintain a similar policy of insurance for six years after the completion of the services.
Neither the Client nor Rawlinsons shall be considered liable for any loss or damage resulting from any occurrence unless a claim is formally made on him or her within six years after the completion of the services.
Rawlinsons shall only be liable to the Client, either in contract or in tort, for direct loss or damage suffered by the Client as the result of a breach by Rawlinsons of his or her obligations under the Agreement.
The Client may order variations to the Services in writing or may request Rawlinsons to submit proposals for variations to the Services.
Rawlinsons shall retain copyright of all intellectual property prepared by Rawlinsons. The Client shall be entitled to use them or copy them only for the Works and the purpose for which they are intended. The ownership of data and factual information collected by Rawlinsons and paid for by the Client shall, after payment by the Client, lie with the Client. The Client may reproduce documents in which Rawlinsons has copyright, as reasonably required in connection with the project but not otherwise. The Client shall have no right to use any of these documents where any or all of the fees and expenses payable to Rawlinsons have not been paid in accordance with his Agreement. Where the Client elects to use any of these documents for another project, the written consent of Rawlinsons shall be obtained and an additional fee negotiated.
The Client shall not provide any of the documentation produced by Rawlinsons to any third party for use in any prospectus, sales or promotional material related to the work commissioned without the express written consent of Rawlinsons, which consent shall not unreasonably be withheld.
Rawlinsons has not and will not during the term of this Agreement or at any time after it, assume any obligation as the Client’s Agent or otherwise which may be imposed upon the Client from time to time pursuant to the Health and Safety in Employment Act 1992 (‘the Act”) arising out of the engagement. Rawlinsons and the Client agree that, for the purpose of the Act, Rawlinsons will not control the place of work in terms of the Act.
Neither the Client nor Rawlinsons may assign the agreement made under these conditions without the prior written consent of the other. Notwithstanding, the consent to such assignment shall not be unreasonably withheld.
The Client may suspend all or part of the Services or terminate the Agreement by notice to Rawlinsons who shall immediately make arrangements to stop the Services and minimise further expenditure. Suspension or termination shall not prejudice or affect the accrued rights or claims and liabilities of the parties.
Disputes shall first be referred to conciliation or mediation for settlement. Unresolved disputes shall be referred to arbitration in accordance with the Arbitration Act. 1996 with a sole arbitrator. Should the parties be unable to agree on a sole arbitrator within thirty days of notification of the arbitration then the arbitrator shall be appointed, upon the request of a party, by the President for the time being of the Arbitrators’ and Mediators’ Institute of New Zealand, or the nominee of the President.
This Agreement is governed by the New Zealand law, the New Zealand courts have jurisdiction in respect to this Agreement, and all amounts are payable in New Zealand dollars.