Terms of Trade

1. Definitions

1.1 “Consultant” shall mean DesignHQ, its successors and assigns or any person acting on behalf of and with the authority of DesignHQ.
1.2 “Client” shall mean the Client or any person acting on behalf of and with the authority of the Client.
1.3 “Guarantor” means that person (or persons), or entity, who agrees to be liable for the debts of the Client on a principal debtor basis.
1.4 “Services” shall mean all Services supplied by the Consultant to the Client and are as described on the invoices, quotation, work authorisation or any other attached forms as provided by the Consultant to the Client.
1.5 “Fee” shall mean the cost of the Services as agreed between the Consultant and the Client subject to clause 3. of this contract.

2. Acceptance

2.1 Any instructions received by the Consultant from the Client for the supply of Services and/or the Client’s acceptance of Services supplied by the Consultant shall constitute acceptance of the terms and conditions contained herein.
2.2 Unless otherwise stated the party giving instructions to the Consultant shall be deemed to be the Client and shall be liable for the cost of the Services.
2.3 Where more than one Client has entered into this agreement, the Clients shall be jointly and severally liable for all payments of the Fee.
2.4 Upon acceptance of these terms and conditions by the Client the terms and conditions are irrevocable and can only be amended with the written consent of the Consultant.
2.5 The Client undertakes to give the Consultant at least fourteen (14) days notice of any change in the Client’s name, address and/or any other change in the Client’s details.

3. Fee And Payment

3.1 At the Consultant’s sole discretion the Fee shall be either;

(a) as indicated on invoices provided by the Consultant to the Client in respect of Services supplied; or
(b) the Consultant’s quoted Fee (subject to clause 3.2) which shall be binding upon the Consultant provided that the Client shall accept the Consultant’s quotation in writing within thirty (30) days.

3.2 Any variation to the Services shall be charged on a time plus costs basis, calculated on the Consultant’s current hourly charge rates.
3.3 At the Consultant’s sole discretion a deposit may be required.
3.4 Time for payment for the Services shall be of the essence and will be stated on the invoice or any other forms. If no time is stated then payment shall be due seven (7) working days following the date of the invoice.
3.5 Invoices shall be prepared at the conclusion of the following stages as applicable:

• Concept Plans
• Full Working Drawings
• Building Consent Procedure
• Project Management

3.6 At the Consultant’s sole discretion:

(a) payment shall be due on delivery of the Services at each stage, or
(b) payment shall be due before delivery of the Services.

3.7 Where a stage takes longer than one month the Consultant may submit a detailed payment claim for work performed up to the end of each month. The value of work so performed shall include the reasonable value of authorised variations, whether or not the value of such variations has been finally agreed between the parties, and the value of materials delivered to the site but not installed. Progress payment shall be made within seven (7) days of each monthly payment claim.
3.8 Where the Services are carried out on a time charge basis, the Consultant may purchase such incidental goods and or services as are reasonably required for the Consultant to perform the Services. The cost of obtaining such incidental goods and/or services shall be payable by the Client and identified as disbursements on all invoices.
3.9 The Consultant may from time to time sub-contract some of the Services. The Consultant will secure a quote or estimate for such services and gain Client approval before engaging the sub-contractor for the work. The Client is liable to pay the sub-contractor’s costs directly to the sub-contractor. The Consultant may charge as an extra for this co-ordination work based on current hourly charge rates.
3.10 Payment will be made by cash, or by cheque, or by bank cheque, or by direct credit, or by any other method as agreed to between the Client and the Consultant.
3.11 GST and other taxes and duties that may be applicable shall be added to the Fee except when they are expressly included in the Fee.

4. Delivery Of Services

4.1 The Consultant may deliver the Services by separate stages. Each stage shall be invoiced and paid for in accordance with the provisions in these terms and conditions.
4.2 The failure of the Consultant to deliver shall not entitle either party to treat this contract as repudiated.
4.3 The Consultant shall not be liable for any loss or damage whatever due to failure by the Consultant to deliver the Services (or any of them) promptly or at all.

5. Risk

5.1 If the Consultant retains ownership of the Services nonetheless, all risk for the Services passes to the Client on delivery.

6. Partial Service

6.1 If the Client requests a partial service (i.e. design & documentation only) the Consultant will not undertake any site involvement and is not available to sign off on any practical completion certificates or validate construction works. The Client, by requesting a partial service understands and accepts full duty and responsibility to ensure that all and any of the critical structural and weather tightness detailing outlined in the supplied building consent documentation is constructed in accordance with the Consultant’s plans. Consequently, the Consultant will not be liable (in contract, tort or otherwise) for any claim, damage, liability, loss or expense incurred by the Client arising in any way in relation to the Consultant not carrying out the works as described in the construction contract which the documentation prepared by the Consultant forms the whole or part of.

7. Client’s Disclaimer

7.1 The Client hereby disclaims any right to rescind, or cancel the contract or to sue for damages or to claim restitution arising out of any misrepresentation made to the Client by the Consultant and the Client acknowledges that the Services are bought relying solely upon the Client’s skill and judgement.

8. Defects

8.1 The Client shall inspect the Services on delivery and shall within fourteen (14) days notify the Consultant of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Client shall afford the Consultant an opportunity to inspect the Services within a reasonable time following notification if the Client believes the Services are defective in any way. If the Client shall fail to comply with these provisions the Services shall be presumed to be free from any defect, and the Consultant shall not be considered liable for any loss or damage. For defective Services, which the Consultant has agreed in writing that the Client is entitled to reject, the Consultant’s liability is limited to either (at the Consultant’s discretion) replacing the Services or amending the Services.

9. Consumer Guarantees Act 1993

9.1 This agreement is subject to the provisions of the Consumer Guarantees Act 1993 in all cases except where the Client is contracting within the terms of a trade/business (which cases are specifically excluded).

10. Intellectual Property

10.1 The Consultant shall retain copyright of all intellectual property prepared by the Consultant. The ownership of factual data and information collected by the Consultant and paid for by the Client shall, after full payment, lie with the Client. The Client may reproduce drawings, specifications and other documents in which the Consultant has copyright as reasonably required in connection with the project for which the Services are retained but not otherwise. The Client shall have no such rights where any fees and/or expenses due to the Consultant have not been paid in accordance with this agreement.
10.2 Receipt by the Consultant of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised and until then the Consultant’s ownership or rights in respect of the Services shall continue.
10.3 The Client warrants that all designs or instructions to the Consultant will not cause the Consultant to infringe the Copyright Act 1994 and the Client shall identify any proprietary rights that any other person may have in any information provided.
10.4 The Consultant shall not, without the Client’s prior consent, use information provided by the Client for purposes unrelated to the Services.

11. Default & Consequences Of Default

11.1 Interest on overdue invoices shall accrue from the date when payment becomes due daily until the date of payment at a rate of 2.5% per calendar month and such interest shall compound monthly at such a rate after as well as before any judgement.
11.2 If the Client defaults in payment of any invoice when due, the Client shall indemnify the Consultant from and against all costs and disbursements incurred by the Consultant in pursuing the debt including legal costs on a solicitor and own client basis and the Consultant’s collection agency costs.
11.3 Without prejudice to any other remedies the Consultant may have, if at any time the Client is in breach of any obligation (including those relating to payment), the Consultant may suspend or terminate the supply of Services to the Client and any of its other obligations under the terms and conditions. The Consultant will not be liable to the Client for any loss or damage the Client suffers because the Consultant exercised its rights under this clause.
11.4 If any account remains overdue after thirty (30) days then an amount of the greater of $20.00 or 10.00% of the amount overdue (up to a maximum of $200) shall be levied for administration fees which sum shall become immediately due and payable.
11.5 Without prejudice to the Consultant’s other remedies at law the Consultant shall be entitled to cancel all or any part of any order of the Client which remains unperformed in addition to and without prejudice to any other remedies and all amounts owing to the Consultant shall, whether or not due for payment, become immediately payable in the event that:

(a) any money payable to the Consultant becomes overdue, or in the Consultant’s opinion the Client will be unable to meet its payments as they fall due; or
(b) the Client becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.

12. Security And Charge

12.1 Despite anything to the contrary contained herein or any other rights which the Consultant may have howsoever:

(a) where the Client and/or the Guarantor (if any) is the owner of land, realty or any other asset capable of being charged, both the Client and/or the Guarantor agree to mortgage and/or charge all of their joint and/or several interest in the said land, realty or any other asset to the Consultant or the Consultant’s nominee to secure all amounts and other monetary obligations payable under the terms and conditions. The Client and/or the Guarantor acknowledge and agree that the Consultant (or the Consultant’s nominee) shall be entitled to lodge where appropriate a caveat, which caveat shall be released once all payments and other monetary obligations payable hereunder have been met.
(b) should the Consultant elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Client and/or Guarantor shall indemnify the Consultant from and against all the Consultant’s costs and disbursements including legal costs on a solicitor and own Client basis.
(c) the Client and/or the Guarantor (if any) agree to irrevocably nominate constitute and appoint the Consultant or the Consultant’s nominee as the Client’s and/or Guarantor’s true and lawful attorney to perform all necessary acts to give effect to the provisions of this clause 14.1.

13. Cancellation

13.1 The Consultant may cancel these terms and conditions or cancel delivery of Services at any time before the Services are delivered by giving written notice. On giving such notice the Consultant shall repay to the Client any sums paid in respect of the Fee. The Consultant shall not be liable for any loss or damage whatever arising from such cancellation.
13.2 In the event that the Client cancels delivery of Services the Client shall be liable for all Services delivered up to the time of cancellation and any loss incurred by the Consultant (including, but not limited to, any loss of profits) up to the time of cancellation.

14. Privacy Act 1993

14.1 The Client and the Guarantor/s (if separate to the Client) authorises the Consultant to:

(a) collect, retain and use any information about the Client, for the purpose of assessing the Client’s creditworthiness or marketing products and services to the Client; and
(b) to disclose information about the Client, whether collected by the Consultant from the Client directly or obtained by the Consultant from any other source, to any other credit provider or any credit reporting agency for the purposes of providing or obtaining a credit reference, debt collection or notifying a default by the Client.

14.2 Where the Client is an individual the authorities under (clause 16.1) are authorities or consents for the purposes of the Privacy Act 1993.
14.3 The Client shall have the right to request the Consultant for a copy of the information about the Client retained by the Consultant and the right to request the Consultant to correct any incorrect information about the Client held by the Consultant.

15. Health & Safety in Employment Act 1992

15.1 The Consultant has not and will not at any time 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 & Safety in Employment Act 1992 (the “HSEA Act”) arising out of the engagement. The parties agree that for the purposes of the HSEA Act, the Consultant shall not be the person who controls the place of work in terms of the HSEA Act.

16. Disputes

16.1 All disputes and differences between the Client and the Consultant touching and concerning this agreement shall be referred to arbitration under a single arbitrator agreed upon by both parties, or failing agreement, by two arbitrators (one to be appointed by each party) and their umpire (appointed by them prior to arbitration), such arbitration to be carried out in accordance with provisions of the Arbitration Act 1996.

17. Client’ Responsibilities

17.1 The Client must provide at its own expense all relevant information regarding the site, the briefing material, budget and all its other requirements for the project. The Client is responsible for the accuracy and completeness of any information provided and the Consultant may rely upon such information. To avoid delays the Client must promptly provide all information required by the Consultant and must promptly respond to all enquiries from the Consultant seeking clarification of the information it has provided.
17.2 The Client must provide written approval of the documents upon satisfactory completion of each of the nominated stages of the services. If the Client fails to provide written approval the Consultant may suspend work on the project.
17.3 The Client must bear the cost of and pay for all statutory taxes, levies, fees, charges and any other imposts that are or become applicable to the project or any part of the project.

18. General

18.1 If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
18.2 These terms and conditions and any contract to which they apply shall be governed by the laws of New Zealand and are subject to the jurisdiction of the courts of New Zealand.
18.3 Although the Consultant will be liable to the Client for any loss or damage suffered by the Client arising out of a direct breach by the Consultant of the Consultant’s obligations under these terms and conditions, the Consultant shall be under no liability whatever to the Client for any indirect loss and/or expense (including loss of profit).
18.4 In the event of any breach of this contract by the Consultant the remedies of the Client shall be limited to damages. Under no circumstances shall the liability of the Consultant exceed the Fee of the Services.
18.5 The Client shall not be entitled to set off against or deduct from the Fee any sums owed or claimed to be owed to the Client by the Consultant.
18.6 The Consultant reserves the right to review these terms and conditions at any time. If, following any such review, there is to be any change to these terms and conditions, then that change will take effect from the date on which the Consultant notifies the Client of such change.
18.7 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock out, industrial action, fire, flood, drought, storm or other event beyond the reasonable control of either party.