Standard Terms of Contract
- "MLA" or “we” or “us” means Mark Loeffen & Associates Limited having its principal place of business at Waikato Innovation Park, Ruakura Road, Hamilton 3216, New Zealand.
- Client means the Client signing this Contract with MLA.
- The "Contract" includes this contract and any other work requested by the Client on terms accepted by MLA including the provision of a Quotation or the acceptance of any order.
- Quotation means an offer, quote, estimate, tender or proposal by MLA and, unless expressly negated, includes these terms and conditions.
- The Client agrees to pay MLA the fees set out in the Quotation, plus reasonable travel and other expenses, plus GST, for the program of work.
- Unless otherwise agreed in writing, the client shall pay each MLA invoice in full within 20 days of the date of the invoice.
- Payment of MLA invoices by the due date is a condition precedent to MLA’s obligation to deliver further services.
- For late payment or any outstanding amounts, MLA reserves the right to charge interest at the rate of 1.5% per month or part thereof for the amounts outstanding and recover all costs and fees associated with the collection of the outstanding amounts.
- Unless otherwise agreed in writing, all quotation charges are expressed exclusive of Goods and Services Tax.
DELIVERY & RISK
- Unless otherwise stated in writing, all times quoted for delivery are estimates only and MLA shall not be liable for any loss or damage, direct or consequential, arising from failure to deliver on the estimated date.
- The Client shall not be relieved of any obligation to accept or pay for services or goods by reason of any delay in delivery or performance by MLA.
- MLA shall not be responsible to the Client for delay or failure in performance of any of the obligations imposed by this Contract, if such delay or failure has been caused by fire, flood, hail, explosion, lightning, windstorm, earthquake, subsidence of soil, failure of machinery or equipment or supply of material, discontinuity in the supply of power, court order, riot, war, strikes, labour disturbances or by any other cause of like or unlike nature in any such case beyond the reasonable control of MLA.
RESERVATION OF TITLE
- Ownership of any report, goods, information or services supplied by MLA shall not pass to the Client until payment in full has been made. Receipt by MLA of the purchase price or any part thereof shall not be deemed to be payment, or conditional payment, until the same has been honoured or cleared, and until such time shall not prejudice or affect the rights, powers or remedies of MLA against the Client.
- Each party undertakes to keep confidential and not disclose to any third party (except as reasonably required to meet their responsibilities or exercise their rights under the agreement, or as previously authorised by the other) any information of a proprietary or confidential nature received by one party from the other concerning the organisation, affairs or business of the other, including the terms of this agreement. This undertaking does not extend to information that is, or comes into, the public domain otherwise than through the default of the receiving party, or which is legally acquired by that party from a third party.
- All intellectual property (including without limitation, patentable inventions, processes, know-how, data, designs or copyright) belonging to either party at the commencement of this agreement shall belong solely to that party.
- The ownership of factual information collected by MLA and paid for by the Client shall, after payment has been cleared, belong to the Client. The Client shall have no right to use any information where any or all fees or expenses due to MLA until such time as these have been paid in full in accordance with this agreement; and acknowledges this.
- Copyright and other intellectual property rights in any processes developed by MLA in the course of the work shall remain the property of MLA.
- All new intellectual property created by MLA or its agents will be owned as stated in the accompanying agreement. If no provision for ownership is made, MLA will own it and the Client will be granted a licence for its use. In either case, MLA will be entitled to use the intellectual property for other applications on a royalty free basis.
- Where MLA reserves, in writing, copyright and/or any other entitlement to any illustrations, drawings and specifications, know how or show how supplied by or on behalf of MLA to the Client, then the Client may not use, reproduce or communicate the contents thereof to any third party unless authorised in writing to do so by MLA. This provision does not apply where the Client implements the Contract for the purpose of receiving illustrations, drawings or specifications.
- All figures or data supplied by MLA for performance are intended to be bona fide reasonable estimates of the performance that would be expected in service. Except where performance figures are specifically guaranteed in writing by MLA to be within specific tolerances, MLA accepts no responsibility for failure of any goods or services to meet stated performance figures and any statement as to performance figures, whether in writing or otherwise, shall not constitute a condition, warranty or representation.
- In the event that MLA has specifically guaranteed performance figures, the Client shall ensure that MLA is given all reasonable time and opportunity to make such modifications or adjustments, as it considers necessary, to ensure that the goods or services comply with the performance warranty. The parties hereto specifically acknowledge that MLA will not be in breach of any warranty as to performance until it shall have been given all reasonable time and opportunity to complete the requisite modifications.
- MLA is offering to act on the instructions of the Client. Where MLA provides advice on the basis of information supplied by the Client (directly or indirectly) should such information prove to be wrong the Client indemnifies MLA accordingly.
- The obligations of the parties shall be suspended during any period of a Force Majeure event, on the basis that the parties communicate details to each other and the Force Majeure event does not adversely affect the relevant party for more than 1 month (or such other period as mutually agreed at the time). If the Force Majeure event has more serious consequences either party may terminate this agreement. In the event of such termination there will be a pro rata payment for services completed to the date of termination.
- We exclude all warranties, undertakings, inducements and representations either made by us or implied by law relating to the services which we provide to you under this Contract (except those made in this Contract).
- You agree that you are acquiring our services for the purposes of a business as defined in the Consumer Guarantees Act 1993. The provisions of that Act do not apply to any services we agree to provide you under this Contract.
- If in the course of providing our services to you we cause you to suffer any damage (except consequential damage), we will pay you the reasonable costs of repairing that damage up to the maximum amount set out in clause 8.6. For us to accept your claim you must tell us within one month of the damage taking place.
Except as provided in clause 8.3, we exclude all liability that we may have to you arising out of us providing our services to you under this Contract. This exclusion applies to:
- whatever you are claiming for (including consequential losses or damages); and
- however liability arises or might arise if it were not for this clause.
- We exclude sections 6-10 of the Contractual Remedies Act 1979 and if we ever become liable to you your only remedy will be compensation from us of the maximum amount set out in clause 8.6.
- If you are ever entitled to compensation from us or we are ever liable to you and (for any reason whatever) we cannot rely on the exclusion of liability set out in clause 8.4, the maximum amount which we will have to pay to you (and anyone else) is the Contract price.
- If in the course of providing our services to you we suffer any damage directly or indirectly as a result of your negligence, intentional misconduct, breach of this Contract or any other contract or breach of any law, you must pay us reasonable costs, losses and expenses associated with that damage.
- Cancellation – Any Client order accepted by MLA or this Contract shall not be cancelled by the Client except by agreement in writing, upon terms agreed between MLA and the Client, including cancellation charges which may be deducted from any advance payments made.
- Additional Cost - In the event of MLA incurring additional cost by reason of the Client failing to give MLA instructions or sufficient instructions pertaining to the Contract, or delivery of the goods or services, the Contract price may be increased at the option of MLA accordingly.
- Fees - In consideration of accepting instructions to act, the Client warrants MLA’s invoices will be paid on these terms.
- Assignment - The benefit of the Contract shall not be assigned by the Client without the prior consent of MLA in writing.
Dispute Resolution - If any dispute arises between the parties out of, or in connection with, this agreement, neither of the parties is to commence any proceedings relating to that dispute until the following procedure has been complied with:
- The parties shall first seek to resolve any dispute concerning this agreement by promptly meeting together with the intention of reaching an acceptable solution to the dispute.
- If an acceptable solution to the dispute is not agreed to by the parties within 10 working days of the dispute having been first notified to a party by the other then either party may at any time invoke the mediation process pursuant to the following clause.
- The party claiming a dispute has arisen must give written notice to the other party specifying the nature of the dispute, or
- Either party may by written notice (called a mediation notice) to the other party require that the dispute between the parties be referred to mediation. A mediation notice shall set out the nature of the dispute but need not provide any further detail in relation to the dispute.
- The service of a mediation notice shall not prevent the dispute from being resolved by negotiation and consultation between the parties.
- The parties will endeavour, in good faith, to resolve the dispute referred to in the notice by using informal dispute resolution techniques.
- The parties shall endeavour to agree upon and appoint a single person as mediator no later than seven days from the date upon which the mediation notice was served.
- If the parties do not agree on a dispute resolution technique and mediator within 14 days after the date notice of a dispute was given, the dispute is to be mediated according to the standard mediation agreement of LEADR New Zealand Incorporated (Lawyers Engaged in Alternative Dispute Resolution), and the Chair of LEADR (or the Chair's nominee) will select the mediator and determine the mediator's remuneration.
- When a mediator is appointed he or she shall, in consultation with the parties, settle the timetable and the procedures to be adopted during the mediation. The decision of the mediator on any timetabling and procedural matters shall be binding on the parties and in particular the mediator shall be entitled to call any meeting between the parties at such time and place as the mediator considers appropriate after having discussed the same with the parties.
- The parties shall attend all meetings called by the mediator and at such meetings shall take part in the negotiations in good faith and use their best endeavours to reach an agreed solution. If any dispute is not resolved by written agreement within 20 working days of the date of service of the mediation notice the dispute shall then be resolved by arbitration and the terms of the Arbitration Act 1996 shall apply.
- A party seeking urgent interlocutory relief may, by notice to the other party, elect not to comply with the provisions of this clause, but only to the extent of the relief sought, and only for the period required to dispose of the application for interlocutory relief.
- Pending resolution of the dispute, this agreement will remain in full effect without prejudicing the parties' respective rights and remedies.
- Waiver - Any waiver by MLA of any rights arising from this Contract shall not be construed as a continuing waiver, or a waiver of other breaches of the same, or other terms of this Contract by Client. No delay or forbearance by MLA shall be construed as a waiver of any MLA right.
- Partnership or agency - Nothing in this Contract shall create a partnership or agency between the parties, except as expressly provided herein.
- Entire contract - The Contract sets forth the entire agreement and understanding between the parties relating to the subject matter contained herein and no modifications, or amendments hereto, shall be effective unless made in writing and signed by the parties hereto.
- Publication - Unless otherwise agreed in writing, MLA may 12 months after the completion of the Contract, publicise the results in a generalised version, but shall not refer to the name, trademarks or trade names of the Client.
- Services - Nothing in this Contract shall prevent MLA from providing the same or similar services to any other party.
- Law - The Contract shall be deemed to have been entered into in New Zealand and shall be governed exclusively by the Laws of New Zealand.
Exchange Risk - As MLA is in New Zealand, payment for its services will be in New Zealand dollars, unless otherwise expressly agreed in writing. For your convenience, if MLA has costed your work in your currency at the date of this Contract and you can remit payment for MLA services in your currency, it will be converted by MLA’s bank upon receipt. Where the contract term is three months or less, MLA will absorb any exchange rate variation. Where the contract term is more than three months, any variation in the exchange rate, by more than 2c/$ between your currency and the New Zealand Dollar that costs MLA, will be passed on to you.
- Version date: 21 March 2013