Terms and Conditions: These Terms and Conditions (Termsand Conditions) apply to the services that you have selected (Services) on the Davis Ogilvie & Partners Limited website (Website). By purchasing the Services on the Website, you accept and agree to be bound by these Terms and Conditions. Where it is indicated by Davis Ogilvie & Partners Limited (us, we) on the Website that additional terms apply, you must read these Terms and Conditions in conjunction with those additional terms. If there is any inconsistency between these Terms and Conditions and those additional terms, the additional terms will prevail (unless we expressly tell you otherwise).
Performance of Services: We will perform the Services at the location specified by you at the time of purchase and in accordance with the description of the Services (including, scope, nature and timeframe) on the Website. We will contact you to advise when the Services at the location will be performed.
Application of Consumer Guarantees Act 1993: Where all or any of, the Services are for the purposes of a business the provisions of the Consumer Guarantees Act 1993 are excluded in relation to those Services. However, nothing will restrict, negate, modify or limit any of your 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 you are not acquiring the Services for the purpose of a business.
Standard of Services: In providing the Services, we will use the degree of skill, care and diligence reasonably expected of a professional consultant providing services similar to the Services.
Requests for Information: You will provide to us, free of cost, as soon as practicable following any request for information, all information in your power to obtain which may relate to the Services. We will not, without your prior consent, use information provided by you for purposes unrelated to the Services. In providing the information to us, you will ensure compliance with the Copyright Act 1994 and shall identify any proprietary rights that any other person may have in any information provided.
Variations: You may request variations to the Services or request that we provide a proposal for variations to the Services. Any request you make must be made in writing and emailed to firstname.lastname@example.org. We will endeavour to accommodate variations; however, we reserve the right to accept or decline variations in our sole discretion. If we accept the variation, we will advise you of the impact on the Services including, but not limited to, any delays to the timeframe for completion of the Services, any increase in costs for the Services (including the timeframe for payment of those costs) and any additional terms that will apply (Variation Terms). You will be required to confirm to us in writing that you accept the Variation Terms before we undertake the variation. Following your acceptance, the Variation Terms will apply.
If we or you become aware that the Services selected and purchased on the Website are incorrect or not appropriate for your purposes, that party must notify the other party in writing. We will discuss this with you to confirm your requirements. We will then determine whether any variation to the Services is required and advise you. The provisions of clause 6 will apply in respect of any variation under this clause 7.
As soon as either you or we become aware of anything that will materially affect the Services (including, but not limited to, the scope, nature or timeframe of the Services), that party must notify the other party in writing. We will determine whether any variation to the Services is required and advise you. The provisions of clause 6 apply in respect of any variation under this clause 8.
Where we consider a direction from you or any other circumstance is a variation of the Services, we will notify you accordingly. The provisions of clause 6 apply in respect of any variation under this clause 9.
Where variations are carried out on a time charge basis, we may purchase such incidental goods and/or services as are reasonably required for us to perform the Services. The cost of obtaining such incidental goods and/or services shall be payable by you on demand. We will maintain records which clearly identify time and expenses incurred.
Additional Costs: Payment for the Services is made at the time the Service is ordered on the Website. However, if additional costs are payable, for example due to a variation of the Services or pursuant to these Terms and Conditions, (Additional Costs), you agree to pay the Additional Costs in accordance with the Variation Terms and these Terms and Conditions (as applicable). If we agree that the Additional Costs are payable in accordance with our standard payment terms then such amounts payable will be due on the 20th of the month following the month of issue of each GST invoice for the additional works.
If you fail to make payment of the Additional Costs at the time(s) required, and that default continues for 14 days, then we may provide written notice to you specifying the default and requiring payment within 7 days from the date of the notice. Unless payment has been made by you in full, we may suspend performance of the Services any time after expiration of the notice period. We will promptly lift the suspension after you have made the required payment(s). Regardless of whether or not we suspend the performance of the Services in accordance with this clause, we may charge interest on overdue amounts from the date payment falls due to the date of payment at the rate of the overdraft rate charged by our trading bank plus 2% per annum calculated on a daily basis and, in addition, the costs of any actions taken by us to recover the debt.
Where a variation has been accepted by an agent (or a person purporting to act as agent) on behalf of a person for whom the Services are being performed, the agent and the person for whom the Services are being performed shall be jointly and severally liable for payment of all Additional Costs and associated amounts due to us under these Terms and Conditions.
Where the nature of the Services is such that it is covered by the Construction Contracts Act 2002 (CCA) and we have issued a payment claim in accordance with the CCA, the provisions of the CCA shall apply. In all other cases, if you, acting reasonably, dispute an invoice, or part of an invoice, in respect of Additional Costs you must promptly give the reasons for withholding the disputed amount and pay any undisputed amount in accordance with clause 11.
Any disbursements and fees payable to Regulatory Authorities as part of the Services will be charged separately and will be payable on demand. We do not take responsibility for the work undertaken by the Regulatory Authority or other consultants involved.
Cancellation of Services: You may cancel the Services at any time by written notice to us however we will be entitled to retain from the purchase price paid any costs incurred by us up to and including the date of cancellation. You will remain liable (and we shall be entitled to retain from the purchase price paid) all costs of any incidental goods and/or services incurred by us to perform the Services, any disbursements and fees incurred by us and payable to Regulatory Authorities as part of the Services, any Additional Costs, and any other costs under these Terms and Conditions. If the purchase price paid is not sufficient to cover all such costs, then you will pay the difference on demand. Any refund due to you will be paid to the account nominated by you to us in writing. If we are unable to perform the Services for any reason attributable to us then we will provide you with a full refund of the purchase price paid to the account nominated by you to us in writing, following which neither party will have any further rights against the other in respect of the Services.
Force Majeure Event: We will not be liable for any breach of these Terms and Conditions to the extent that such breach is due to an extraordinary event or circumstance beyond our reasonable control (Force Majeure Event) provided that we keep you fully informed of the situation, use reasonable endeavours to mitigate the effect of the Force Majeure Event and resume full performance of the Services as soon as reasonably practicable.
Liability: If we breach these Terms and Conditions, we will be liable to you for reasonably foreseeable claims, damages, liabilities, losses or expenses caused directly by the breach as limited by clause 19. We will not be liable to you for your indirect, consequential or special loss, or loss of profit, however arising, whether under contract, in tort or otherwise.
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 NZ$100,000 and a maximum limit of NZ$500,000.
Without limiting any defences either we or you may have under the Limitation Act 2010, neither party shall be considered liable for any loss or damage resulting from any occurrence unless a claim is formally made on a party within 6 years from completion of the Services.
If we or you are found liable to the other (whether in contract, tort or otherwise), and the claiming party and/or a third party has contributed to the loss or damage, the liable party shall only be liable to the proportional extent of its own contribution.
Insurance: We will take out and maintain for the duration of the Services a policy of Professional Indemnity insurance for the amount of liability under clause 19. We undertake to use all reasonable endeavours to maintain a similar policy of insurance for six years after the completion of the Services.
Intellectual Property: Intellectual property prepared or created by us in carrying out the Services, and provided to you as a deliverable, (New Intellectual Property) shall be jointly owned by you and us. We each grant to the other an unrestricted royalty-free license in perpetuity to copy or use New Intellectual Property. Your rights in relation to this New Intellectual Property are conditional upon you having paid all amounts due and owing to us in respect of the Services. Intellectual property owned by a party prior to our engagement for the Services (Pre-existing Intellectual Property) and intellectual property created by a party independently of the Services remains the property of that party. We accept no liability for the use of New Intellectual Property or Pre-existing Intellectual Property other than to the extent reasonably required for the intended purposes.
Health and Safety: We have a proactive approach to health and safety and are committed to providing a safe work place and to complying with the Health and Safety at Work Act 2015 in all aspects of our operations. We have a comprehensive Health and Safety Manual, policies and procedures of which copies are available on request. We have not and will not assume any duty imposed on you pursuant to the Health and Safety at Work Act 2015 in connection with the Services.
Breach of Terms and Conditions: We or you may (in the event the other party has committed a material breach of these Terms and Conditions that has not been remedied within 14 days of receiving written notice of the breach) either suspend and/or terminate the Services by notice to the other party. If any suspension by you has not been lifted after 2 months or you have terminated the Services, we have the right to terminate the Services (in respect of a suspension) and a right to retain from payments made by you to date and claim (if payments made by you to date are not sufficient) all reasonable costs as a result of the suspension and/or termination. Suspension or termination shall not prejudice or affect the accrued rights or claims and liabilities of the parties.
Disputes: The Parties shall attempt in good faith to settle any dispute by mediation.
Jurisdiction: These Terms and Conditions are governed by the New Zealand law, the New Zealand courts have jurisdiction in respect of these Terms and Conditions, and all amounts are payable for the Services and otherwise under these Terms and Conditions are payable in New Zealand dollars.