Terms and Conditions

1. DEFINITIONS

1.      Terms and Conditions: the legal contract between a service provider and a person or client who wants to use an offered service. The person must agree to abide with the terms of service in order to use the offered service.

1.1.    Client is: the person named as the Client in agreements.

1.2.    The Client’s Project is: as stated in agreed/signed service offering agreement(s).

1.3.    In-Confidence Information Unless otherwise noted:

  • all professional advice or other information of a sensitive nature; and

  • all information about the client and business(es), gained during the currency of the service offering that is not already in the public domain, shall be considered as In-Confidence information. However, information that is public knowledge (otherwise than through a breach of confidentiality obligations by either Party) shall not be considered as Confidential Information.

1.4.    Consultant is: the Party named as the Consultant in service offering agreements.

1.5.    Intellectual Property means: all intellectual property rights, including (but not limited to) copyright, in all concepts, designs, drawings, specifications, plans, studies, reports, models, software and documentation collated, prepared or created in any medium by the Consultant (or persons on behalf of the Consultant) in carrying out the service(s) and provided to the Client as deliverables but not including Pre-existing Intellectual Property.

1.6.    Pre-existing Intellectual Property means: all intellectual property rights owned by the Consultant or any third party and provided or used by the Consultant in carrying out the Services.

1.7.    Client’s Intellectual Property means: all intellectual property rights owned by the Client and provided to the Consultant for the purposes of carrying out the offered services.

1.8.    Party means: the Client or Consultant; “Parties” means the Client and the Consultant and “Third Party” means any other person or entity as the context requires, including contractor(s) and other consultants.

1.9.    Services are: the security related services including (but not limited to),  Threat, Protective, Physical, Personal, Information, Training and Awareness advisory assessments and Reports.

1.10. Variation means: a change in the provisions of the services, including scope, time of supply or scale.

1.11. Working Day is: a calendar day other than a Saturday, Sunday, statutory or public holiday or any day falling within the period from 24 December to 5 January both inclusive irrespective of the days on which work is actually carried out.

1.12. Works means: the physical and other works (if any) relating to the service(s), to be carried out by a Contractor, including any associated support or liaison assistance by the Client.

 

2.      INTERPRETATION

2.1.    In these general conditions for offered services, the singular shall include the plural, the masculine shall include the feminine, and vice versa where the context requires. A reference to a Party includes their respective successors, executors and administrators. A reference to any Act or Regulation shall include all subsequent Acts or Regulations in amendment of, or substitution for, the same.

2.2.    Obligations of the Consultant. The consultant must:

  • provide the Services set out in agreed/signed agreements

  • perform the Services in accordance with the agreed/signed timetable; and

  • advise the Client promptly if additional briefing or information is required from the Client to avoid any delay to the provision of services.

2.3.    Duty of Care. In providing the services, the consultant must use the degree of skill, care and diligence reasonably expected of a professional consultant providing services similar to the Services.

2.4.    Duty of Independent Judgement - where the services require the consultant to certify, decide or use discretion under a contract between the Client and a Third Party, the consultant must act independently, and with professional skill and judgement, according to the terms of the contract between the Client and the Third Party.

2.5.    Other Consultants - the primary consultant must direct and/or co-ordinate the work of other consultants where required to deliver the offered service(s).

2.6.    Client Concerns -the consultant must remedy any concerns notified by the Client under clause 3.5 to the satisfaction of the Client, or agree with the Client a plan for remedying any such concerns, before proceeding to the next stage of the services.

2.7.    Conflicts of Interest - the consultant must try to ensure that conflicts of interest do not arise, and notify the Client immediately in writing if it is thought that a conflict of interest may arise or has arisen. Where a conflict of interest is identified and the Client has given informed consent, the consultant must establish structures and practices which:

  • ensure that the conflict is avoided in practice; or

  • if avoidance is not practicable, ensure that the effects of conflict are minimised. In either situation, the consultant must inform the Client of the structures and practices that have been established.

2.8.    Health and Safety - the consultant must have in place a health and safety management plan that is appropriate for the services and comply with any health and safety plan operated by the Party or Third Party who manages or controls the workplace(s), where services are being provided. The consultant is responsible for health and safety issues relating to the provision of the offered services.

2.9.    Public Statements – the consultant must not make any public or media statements to anyone about the services, agreements, or the work delivered without the Client’s written approval.

2.10. Delays - if at any time the consultant’s performance falls behind the programme set out in agreements, then the consultant shall notify the Client and, where due to matters within the control of the consultant, shall take all practicable steps to remedy such delay.

2.11. Client Early Warnings – the consultant provide early warning by notifying the Client in writing as soon as the consultant becomes aware, or should reasonably have become aware, of any direction or other circumstance which could impact the provision of services, whether or not the consultant considers the direction or other circumstance to be a Variation. The consultant shall provide the Client with details of the estimated impact of the direction or other circumstance on the cost of the services, likely or estimated impact on the work programme and completion date for the services and make recommendations on how to proceed.

 

3.      OBLIGATIONS OF THE CLIENT

3.1.    Payment - the Client must pay the consultant for the services according to the agreed/signed agreements.

3.2.    Provision of Information - the Client must:

  • declare any ownership or proprietary rights any other person may have to related service offering information, and pay for any royalties or fees required to be paid for the consultant to use such information to provide the offered services; and

  • in response to the consultant’s request, provide additional relevant information, within a timeframe that does not materially delay the offered services or work; and

  • accept responsibility for the accuracy of information provided. The consultant is expected to review all the information provided to ensure that it contains no manifest errors or omissions. No Variation will exist if the information contains manifest errors or omissions that the consultant should reasonably have been expected to find.

3.3.    Client Decisions - the Client must respond to any written request from the consultant for a decision within a reasonable time, to avoid or minimise any delay to the provision of the services or work. If the services are to be provided in stages, then the Client must approve the current stage before the consultant may proceed with the next stage. If the Client has any concerns with the current stage, the Client shall notify the consultant of these in writing prior to giving approval for the consultant to proceed to the next stage.

3.4.    Assistance to the Consultant - the Client must co-operate with the consultant and not obstruct the proper performance of the provided services. The Client must, as soon as practicable:

  • provide relevant facilities, personnel, and general business information to support services being reviewed and assessed; and

  • allow the consultant to visit the site(s) and other locations associated with the offered services; and

  • obtain and pay for all consents, certificates, approvals, authorities, licences and permits that are needed to lawfully carry out the agreed/signed service(s) and work, except where they are to be obtained by the Consultant separately.

3.5.    Third Party Direction – if the consultant has to direct and/or co-ordinate work carried out by a Third Parties directly contracted to the Client, to support offered services, the Client shall give all instructions to such Third Parties through the Consultant.

3.6.    Consultant Early Warning - as soon as the Client becomes aware of anything that will materially affect the scope or timing of the service(s), the Client must inform the consultant in writing.

3.7.    Health and Safety - the Client shall provide to the consultant a list (or briefing) of known identified risks to health and safety relevant to the offered service(s), and any safety risk register or health and safety management plan operated by the Client that is relevant to the offered services being safely executed.

3.8.    Approvals - where approval of the Client is sought under this Agreement, it shall not be unreasonably withheld or delayed. Where the Client gives its consent, review or approval in respect of any matter arising in relation to the service(s), such consent, review or approval shall not reduce the liability of the consultant in respect of the matter approved except:

  • where the matter being approved reasonably carries some risk; and

  • the risk has been identified to the Client in writing.

  

4.      PERSONNEL

4.1.    Client’s Representative - the Client’s Representative has authority to give the consultant instructions on the Client’s behalf; and may monitor, review, approve, accept, reject or confirm any part, or all, of the service(s). If the Client changes the Client’s Representative, the Client shall first inform the consultant in writing.

4.2.    Consultant’s Representative - the Consultant’s Representative has authority to receive instructions on behalf of the consultant and for co-ordinating and providing the service(s) as agreed on a day-to-day basis, and must communicate with the Client’s representative when required.

 

5.      PAYMENT

5.1.    Payment – all amounts payable by the Client shall be due on the 20th of the month following the month of issue of each GST Invoice or at such other timing as stated elsewhere in agreed/signed agreement(s).  If the Client fails to make the payment that is due and payable and default continues for 14 days, the Consultant may provide written notice to the Client specifying the default and requiring repayment within 7 days for the date of the notice.  Unless payment has been made by the Client in full, the Consultant may suspend performance of the services(s) any time after expiration of the notice period.  The Consultant must promptly lift the suspension after the Client has made the payment.  Regardless of whether or not the Consultant suspends the performance of the services(s) in accordance with the clause, the Consultant may charge interest on overdue amounts from date payment falls due to the date of payment at the rate of the Consultants overdraft rate plus 2% and in addition the costs of any actions taken by the Consultant to recover the debt.

5.2.    Time for Payment - the Client must pay the consultant all undisputed amounts claimed and due under the agreed/signed agreement(s) for offered service(s). Where an invoice, or part of an invoice, is not paid as required by clause 5.1, or any disputed amount that is not paid is subsequently found to be payable, the Client must pay interest on the unpaid amount from due date to the date of actual payment at the consultant’s non-penalty overdraft interest rate.

5.3.    Disputed Invoices - if the Client, acting reasonably, disputes an invoice, or part of an invoice, the Client must promptly give the reasons for withholding the disputed amount and pay any undisputed amount in accordance with clause 5.1.

 

6.      LIABILITY and INSURANCE

6.1.    Liability - where the Consultant breaches this Agreement, the consultant is liable to the Client for reasonably foreseeable claims, damages, liabilities (including any liability of the Client to a third party), losses or expenses caused directly by the breach. A Party shall not be liable to the other Party under this Agreement for the other Party’s indirect, consequential or special loss, or loss of profit, however arising, whether under contract, in tort or otherwise.

6.2.    Limitation of Liability - the maximum aggregate amount payable, whether in contract, tort or otherwise, in relation to claims, damages, liabilities, losses or expenses, shall be five times the fee (exclusive of GST and disbursements) with a minimum of $NZ100,000 and a maximum limit of $NZ500,000.

6.3.    Liability Duration – without limiting any defences a Party may have under the Limitation Act 2012, neither Party shall be considered liable for any loss or damage resulting from any occurrences unless a claim is formally made on a Party within 6 years from the completion of Service(s).

6.4.    Proof of Insurance - if the Client asks, the consultant must produce certificates evidencing the currency of such cover and proving that professional indemnity and public liability insurance policies are in place.

 

7.      VARIATIONS

7.1.    Service Variations - the Client may request a Variation to the service(s), in writing, or may ask the consultant to propose a Variation to the service(s), the impact of which on the cost, programme and completion date for the service(s) shall be agreed/signed in associated service(s) agreements.  Where a consultant notifies the Client that specific direction or circumstance should be treated as a Variation, the Client shall as soon as practicable after receiving such notice, but within 15 Working Days, respond to the consultant in writing whether or not it considers the direction or other circumstances to be a Variation and give the reasons for its decision. If the Client does not consider the direction or other circumstance to be a Variation then the Client and Consultant shall attempt to resolve the matter as soon as practicable, and if a Variation is agreed, proceed forthwith subject to clause 7.2.

7.2.    Agreement of Variations – when agreed the Client and the consultant shall agree, in writing, the value of the Variation or the mechanism under which the value will be derived. In either case, the Client and Consultant shall agree, in writing, the impact of the variation on the programme and completion date for the Services. Where practicable the value of the Variation and impact on the programme and completion date for the Services shall be agreed between the parties prior to the Variation works progressing. Where the value of the Variation cannot practicably be agreed between the Parties prior to the Variation works commencing, the parties shall agree to a budget for the Variation works that shall not be exceeded without further agreement between the Parties.

7.3.    Failure to Agree - in the event that the Parties are unable to reach agreement on whether a direction or circumstance should be treated as a Variation, or on the value and impact on the programme and completion date for the Services, the matter shall be treated as a dispute and resolved in accordance with clause 10.3.

 

8.      CONFIDENTIALITY

8.1.    Client Obligations - the Client must:

  • keep all Confidential Information relating to the Consultant confidential and only use it for the purposes it was made available; and

  • not disclose Confidential Information relating to the Consultant without the Consultant’s written approval, unless it is necessary for the purposes of the Services or the Works to disclose it to any appropriate third party, or as required by law.

8.2.    Consultant Obligations - the Consultant must:

  • keep all Confidential Information relating to the Client or the Client’s Project confidential and only use it for the purposes it was made available; and

  • not disclose any Confidential Information relating to the Client or the Client’s Project or the Works without the Client’s written approval, unless it is necessary for the purposes of the service(s) or work(s) to disclose it to any appropriate third party, or as required by law.

8.3.    Exclusions - if the Client is subject to the Official Information Act 1982, the Local Government Official Information and Meetings Act 1987 or the Privacy Act 1993 then the Consultant acknowledges that, pursuant to those Acts, the Client may be required to release information about the service(s), the Client’s project or related agreed/signed agreements. If either Party is legally bound to disclose In-Confidence Information, that Party must first advise the other Party what information will be provided and limit the information to that required by the law. The Consultant may be required to disclose In-Confidence Information if required by their code of professional ethics. In such cases the Consultant shall advise the Client of this requirement and limit the information disclosed to that necessary to comply with the applicable code of ethics.

8.4.    Return of In Confidence Information - upon request the Consultant must promptly return to the Client or destroy all In-Confidence Information which is in the Consultant’s possession or control.

 

9.      INTELLECTUAL PROPERTY

9.1.    All New Intellectual Property held in any medium, whether electronic or otherwise, shall be jointly owned by the Client and the Consultant. The Client and the Consultant hereby grant to the other an unrestricted royalty-free license in perpetuity to copy or use such New Intellectual Property and each Party is free to make whatever use they wish of the New Intellectual Property without any obligation to obtain the other’s consent or to account for any future benefits.

9.2.    All Pre-existing Intellectual Property shall remain the property of the original owner. The Client's Intellectual Property shall remain the property of the Client. The Consultant hereby grants to the Client, or agrees to procure the grant to the Client of, an unrestricted royalty-free licence to use and copy Pre-existing Intellectual Property to the extent reasonably required to enable the Client to make use of the service(s). The Client hereby grants to the Consultant, an unrestricted royalty-free licence to use and copy the Client's Intellectual Property provided to the Consultant to the extent reasonably required to enable the Consultant to provide the service(s).

9.3.    The Consultant accepts no liability for use of New Intellectual Property or Pre-existing Intellectual Property other than to the extent reasonably required for the intended purposes relating to:

  • The service(s), and the Client's Project(s); and

  • The Client owns, or has the right to use In-Confidence Information disclosed or provided to the Consultant under this Agreement.

  • The ownership of data and factual information collected by the Consultant paid for by the Client shall, after payment by the Client, lie with the Client.

 

10.   DISPUTES

10.1. If there is a dispute between the Parties in relation to agreed/signed agreement(s), or any matter arising from, the Parties will in good faith in the first instance use their best endeavours to resolve the dispute themselves.

10.2. If the dispute cannot be resolved by the Parties themselves within a reasonable time, then they must explore whether the dispute can be resolved by use of mediation or other alternative resolution technique.

10.3. If the dispute is not settled within a reasonable time, then either Party may refer the dispute to arbitration by a sole arbitrator under the provisions of the Arbitration Act 1996 and the substantive law of New Zealand. The arbitrator will be appointed by agreement between the Parties within 15 Working Days of written notice of referral by the referring party to the other or, failing agreement, by the President of the Arbitrators’ and Mediators’ Institute of New Zealand (AMINZ) or its successor body, or any nominee of the President. In either case, the arbitrator must not be a person who has participated in any informal dispute resolution procedure in respect of the dispute.

10.4. No dispute arising gives either Party the right to suspend their obligations under the terms of this Agreement.

 

11.   TERMINATION

11.1. Termination - the Client may terminate agreed/signed agreement(s) at any time, by written notice to the Consultant. As soon as this notice is received, the Consultant shall stop the service(s). The Consultant may terminate agreement(s) by written notice only if the Client has materially breached the terms of the agreement(s). At the completion of the service(s) and return of all data and information pertaining to the service(s), the agreement(s) is hereby terminated. Termination of agreement(s) shall not prejudice or affect the accrued rights or claims and liabilities of the Parties.

11.2. Payment on Early Termination - if the Client terminates this Agreement, or the Consultant terminates this Agreement because the Client has breached it, then the Client must immediately pay the Consultant for Services provided to the date of termination. If the Client terminates the Agreement for reasons other than a default by the Consultant, or if the Consultant terminates the Agreement because of a default by the Client, the Client must immediately pay the Consultant for Services provided to the date of termination and also pay any reasonable costs that the Consultant incurs solely because of the early termination of the Agreement. If the Client terminates this Agreement because of a material breach of the Agreement by the Consultant the Client shall not be obliged to pay for the services that have caused the material breach.

11.3. Return of Property or Equipment - at the end of the service(s), the Consultant must return to the Client any property, including the Client’s Intellectual Property, or equipment of the Client which is in the Consultant’s possession or control. Notwithstanding any other provision in agreed/signed agreement(s) the Consultant shall be entitled to retain a copy of all documentation including In-Confidence Information, drawings, specifications, reports, correspondence, computer files and records of every description for its record keeping purposes only. Such documentation shall include all relevant New, Pre-existing and Client’s Intellectual Property. The Consultant shall treat all such documentation as In-Confidence Information and shall mark it In-Confidence.

11.4. Transfer of New Intellectual Property - in the event of termination by the Client, the Consultant shall provide reasonable assistance to the Client in the transfer of the Services (including delivering copies of any New Intellectual Property in the Consultant’s control) to the new consultant provided that the Client has made all payments due and owing under the Agreement.

11.5. Right of Suspension for Non-payment - if the Client fails to make the payment that is due and, that default continues for 10 Working Days, the Consultant may provide written notice to the Client specifying the default and requiring payment within 5 Working Days from the date of the notice. Unless payment has been made by the Client in full, the Consultant may suspend performance of the service(s) any time after expiration of the notice period.

 

12.   FORCE MAJEURE

12.1. Neither party shall be liable for any delay or failure to fulfil its obligations under the agreed/signed agreements for service(s) arising directly or indirectly from any circumstance beyond the reasonable control of the affected party (including, without limitation, acts of God, flood, earthquake, storm, fire, epidemic, war, embargoes, riot or civil disturbance), provided that the affected party shall:

  • Notify the other party as soon as practicable of the events; and

  • Use all reasonable endeavours to continue to perform its obligations and mitigate the effects of the event.

 

13.   GENERAL PROVISIONS

13.1. Consumer Guarantees Act 1993 - the Client and the Consultant agree that where all or any of, the service(s) are acquired for the purposes of a business the provisions of the Consumer Guarantees Act 1993 are excluded in relations those Services.  However, nothing in these Terms and Conditions shall restrict, negate, modify or limit any of the Client’s rights under the Consumer Guarantees Act 1993 where the Services acquired are of a kind ordinarily acquired for personal, domestic or household use or consumption and the Client is not acquiring the Services for the purpose of a business.

13.2. Law and Currency – these Terms and Conditions are subject to New Zealand law. References to dollars are references to New Zealand dollars unless otherwise stated. Any arbitration or court proceedings about agreed/signed agreement(s), or the service(s), must be brought and heard in New Zealand.

13.3. Changes in Legislation - if, after the date of an agreed/signed agreement(s), the cost or duration of the service(s) alter because of changes or additions to any statute, regulation or by-law, or requirements of any authority that has jurisdiction over any part of the service(s), the agreed changes to cost and duration of the service(s) will be treated as a Variation.

13.4. Reporting - the Client and the Consultant shall review and discuss the progress of the service(s), as agreed from time to time, or as reasonably requested.

13.5. Subcontracting - neither Party shall assign, transfer or subcontract all or part of its rights or obligations under agreed/signed agreement(s) for service(s) without the other Party’s prior written approval. This approval may be refused without the need to give reasons, except that, in the case where the Consultant requests approval to subcontract (as defined in the Companies Act 1993), such approval shall not be unreasonably withheld. If either Party assigns or transfers its rights, the Party will remain liable for the performance of its obligations under agreed/signed agreement(s), unless specifically stated to the contrary.

13.6. Waivers – any waiver given by either Party in connection with agreed/signed agreement(s) for service(s) is binding only if it is in writing, and then strictly in accordance with the terms on which it is given. Subject to this clause, no waiver given by either Party for the purposes of these Terms and Conditions affects or limits that Party’s rights against the other Party.

13.7. Partnerships - nothing in the agreed/signed agreement(s) are to be construed as evidence of a partnership between the Parties.

13.8. GST - where there is a reference to any payment under the agreed/signed agreement(s), GST (or any similar tax) is additional and to be added to the amount of that payment.

13.9. Amendments - these Terms and Conditions shall be effective upon amendment editing. Amendments shall be effective during instances of ongoing Client service(s) provision upon being signed by both parties.

13.10. Travel disbursements – unless specified, all rates and costs stated exclude specific travel costs, accommodation and associated disbursements.  These costs will be charged as an extra with a 5% administration fee.  Where specified, T&S is a budget estimate only.