1.1 “CIL” means Creative Intentions Limited, its successors and assigns, or any person acting on behalf of, and with the authority of, Creative Intentions Limited.
1.2 “Client” means the person/s or any person acting on behalf of and with the authority of the Client requesting CIL to provide the Services as specified in any proposal, quotation, order, invoice or other documentation, and:
(a) if there is more than one Client, is a reference to each Client jointly and severally; and(b) if the Client is a part of a Trust, shall be bound in their capacity as a trustee; and(c) includes the Client’s executors, administrators, successors and permitted assigns.1.3 “Consultant’ means any person or persons engaged by the Client to provide specialised works on behalf of the Client.
1.4 “Services” means all Services provided by CIL to the Client, at the Client’s request, from time to time, and includes any documents, designs, plans, drawings or materials (“Documentation”) provided, consumed, created or deposited incidentally by CIL in the course of it conducting, or providing to the Client, any Services. Where the context so permits the terms ‘Services’ or ‘Documentation’ shall be interchangeable for the other.
1.5 “Project” means the Project as specified in the Scope of Works and/or Letter of Engagement that will read in conjunction with this Agreement for which the Services are provided by CIL to the Client.
1.6 “Fee” means the Fee payable for the Services, as agreed between CIL and the Client in accordance with clause 5 of this Agreement and shall be in New Zealand dollars ($NZ), unless otherwise specified.
1.7 “Agreement” means this contract, including any schedule and any other agreement expressed to be supplemental to this Agreement, and all other amendments to such a document.
2.1 The Client is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Client places an order for, or accepts Services provided by CIL.
2.2 These terms and conditions may only be amended with both party’s consent in writing and shall prevail to the extent of any inconsistency with any other document or Agreement between the Client and CIL.
2.3 The Client accepts and acknowledges that;
(a) CIL reserves the right to appoint at CIL’s discretion a project manager or managers to oversee the Services up to and including completion, the Client accepts that this party may be subject to change without notice, during the course of the contract; and(b) the Documentation is prepared for the Client’s specific Project, CIL accept no liability for the design where the Client chooses to deviate from CIL’s recommended and approved plans(c) where CIL provides training services in respect of CAD services but the Client’s equipment is found not be fit for purpose then CIL will provide replacement industry standard equipment, this will be charged for, in accordance with clause 18.104.22.168 Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 22 of the Electronic Transactions Act 2002 or any other applicable provisions of that Act or any Regulations referred to in that Act.
3. Change in Control
3.1 The Client shall give CIL not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client and/or any other change in the Client’s details (including but not limited to, changes in the Client’s name, address, contact phone or fax number/s, change of trustees or business practice). The Client shall be liable for any loss incurred by CIL as a result of the Client’s failure to comply with this clause.
4. Authorised Representatives
4.1 Unless otherwise limited as per clause 4.2, the Client agrees that should the Client introduce any third party (including but not limited to, another company or consultant) to CIL as the Client’s duly authorised representative, that once introduced that person shall have the full authority of the Client to order any Services, and/or to request any variation thereto, on the Client’s behalf (such authority to continue until all requested Services have been completed, or the Client otherwise notifies CIL in writing that said person is no longer the Client’s duly authorised representative).
4.2 In the event that the Client’s duly authorised representative as per clause 4.1 is to have only limited authority to act on the Client’s behalf then the Client must specifically and clearly advise CIL in writing of the parameters of the limited authority granted to their representative.
4.3 The Client specifically acknowledges and accepts that they will be solely liable to CIL for all additional costs incurred by CIL (including CIL’s profit margin) in providing any Services, or variation/s requested by the Client’s duly authorised representative (subject always to the limitations imposed under clause 4.2 (if any)).
5. Fee and Payment
5.1 At CIL’s sole discretion the Fee shall be either;
(a) as indicated on invoices provided by CIL to the Client in respect of Services provided; or(b) the Fee as at the date of completion of the Services, according to (and calculated by) CIL’s current schedule of rates; or(c) CIL’s quoted Fee (subject to clause 5.2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days. No allowances shall be made for site preparation, unless specified in the quotation. The Services are based on the Project site being “Clean Soil”, if contaminated soil is present, the Fee will be subject to additional costs in accordance with 22.214.171.124 CIL reserves the right to change the Fee:
(a) if a variation to the Services which are to be provided (including any applicable plans or specifications) is requested. In the event the Client requests changes after commencement of the Services then CIL (at its sole discretion) shall be entitled not only to vary the Fee but the term of the Agreement; or(b) where additional Services are required due to the discovery of hidden or unidentifiable difficulties (including, but not limited to, adverse site conditions, safety considerations, prerequisite work by any third party not being completed, inaccurate measurements provided by the Client, change of design, limitations to site accessibility, health hazards and safety considerations (such as the discovery of asbestos), prerequisite work by any third party not being completed, obscured building defects, change of design, hard rock barriers below the surface or iron reinforcing rods in concrete, previous services that are non-compliant or any interruption to the Services by the Client or any third party, etc.) which are only discovered on commencement of the Services; or(c) if during the course of the Services, materials cease to be available from CIL’s third party suppliers, then CIL reserves the right to provide alternative materials, subject to prior confirmation and agreement of both parties; or(d) in the event of increases to CIL in the costs of provision of the Services and/or production of any Documentation (including fluctuations in currency exchange rates), due to circumstances beyond the reasonable control of CIL; or(e) to include all costs and expenses (including, but not limited to, disbursements, postage, search fees, couriers and the like expenses), incurred by CIL in connection with the provision of the Services. CIL shall fully document all such expenses for submission to the Client.5.3 All variations shall be in writing, detailing the reason for the variation, the impact on the Fee, term and/or the scope of the Agreement and shall be signed by both parties.
5.4 At CIL’s sole discretion, a non-refundable deposit may be required.
5.5 Time for payment for the Services being of the essence, the Fee will be payable by the Client on the date/s determined by CIL, which may be:
(a) on completion of the Services; or(b) by way of instalments/progress payments in accordance with CIL’s payment schedule. Such progress payment claims may include the reasonable value of authorised variations; or(c) the date specified on any invoice or other form as being the date for payment; or(d) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Client by CIL.5.6 Payment may be made by bank cheque, electronic/on-line banking, or by any other method as agreed to between the Client and CIL.
5.7 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 CIL nor to withhold payment of any invoice because part of that invoice is in dispute.
5.8 Unless otherwise stated the Fee does not include GST. In addition to the Fee the Client must pay to CIL an amount equal to any GST CIL must pay for any provision of Services by CIL under this Agreement (or any other agreement). The Client must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Client pays the Fee. In addition, the Client must pay any other taxes and duties that may be applicable in addition to the Fee, except where they are expressly included in the Fee.
5.9 Receipt by CIL 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 CIL’s ownership or rights in respect of the Services, and this Agreement, shall continue.
6. Extension of Agreement Term
6.1 CIL shall as per clause 5.2 above be entitled to claim an extension to the term of the Project in the event of delays resulting from any matter whatsoever which is not entirely under the control of CIL. These matters shall include, but are not limited to delays caused by:
(a) response(s) to information request(s) made by CIL to the Client not being available when required; or(b) approval authorities’ response times for requests for preliminary decisions/information; or(c) information from Consultants, councils or referral agencies not being available when required; or(d) changes to the design brief being requested by the Client; or(e) time taken by the approval authority for the granting of required approvals; or(f) any other variation to this Agreement.6.2 In the event that there is a break in the continuity of Services being provided by CIL due to the Client’s instructions, or lack of instruction, and such instructions are not received within thirty (30) calendars days of being requested by CIL, or from the last Client instruction, or all Services are suspended by CIL pursuant to overdue payments, then Fees for Services completed at the time of such a break or suspension shall be:
(a) the percentage due for completed Services of the current stage, plus the cost of all Project staff working at the time of such a break or suspension of the Services for one (1) month, all Fees due up to date of such a break or suspension plus all Fees, wages and expenses reasonably incurred as a result of such a break or suspension, unless otherwise agreed; and(b) if the Project recommence, in addition to the amounts payable previously, the Client shall pay a recommencement fee to CIL. This Fee shall be equivalent to the time charge cost for five (5) days of all Project staff required to be working on the Project at the time of such a break or suspension thereof, unless other agreed.6.3 Nothing in this contract shall have the effect of limiting or preventing CIL from claiming more than one extension of time for a delay specified in clause 6.1.
6.4 If the Client disputes any extension of time the Client must provide CIL with written notification specifying why they are disputing the time extension requested, such notification to be provided to CIL within five (5) working days of the Client receiving CIL’s time extension request. Lack of advice from the Client to the contrary shall mean that the Client has accepted CIL’s time extension request.
6.5 CIL shall within five (5) working days of commencement of the Services confirm to the Client in writing the actual date that the Services commenced and the expected date for completion.
7. Compliance with laws
7.1 The Client and CIL agree that both parties shall comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities that may be applicable to the provision of Services by CIL, including any occupational health and safety laws relating to building/construction sites and any other relevant safety standards or legislation.
7.2 CIL 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 at Work Act 2015, including any subsequent regulations (the “HSW Act”) arising out of the engagement. The parties agree that for the purposes of the HSW Act, CIL shall not be the person who controls the place of work in terms of the HSW Act.
7.3 Unless otherwise agreed to in writing, the Client is responsible for, and shall promptly obtain (taking all reasonable and necessary steps and at their own cost), all building approval and consents (whether statutory or otherwise) that are necessary to enable the building work on the site to commence. If CIL agrees to undertake such responsibility on behalf of the Client, then the Client agrees to give CIL all possible assistance, and sign all necessary document/s, to enable CIL to obtain the necessary consents and approvals in a timely manner.
8. Provision of Services
8.1 Any time specified by CIL for provision of the Services is an estimate only and CIL will not be liable for any loss or damage incurred by the Client as a result of any delay. However, both parties agree that they shall make every endeavour to enable the Services to be provided at the time and place as was arranged between both parties. In the event that CIL is unable to provide the Services as agreed solely due to any action or inaction of the Client then CIL shall be entitled to charge a reasonable fee for re-providing the Services at a later time and date and the Client shall be liable for those costs.
9. Nominated Consultants
9.1 CIL shall engage Consultants as specified in the quotation acting solely as agent on behalf of the Client and the following shall apply:
(a) CIL shall be entitled to enter into contracts with such Consultants in the name of the Client; and(b) the Client shall be responsible for all payments to such Consultants; and(c) where CIL pays the Consultant’s account on behalf of the Client, the Client shall reimburse CIL for the payment of the Consultant’s account together with an account-handling fee within fourteen (14) days from the date of submission of the account by CIL to the Client; and(d) if the Client does not reimburse CIL within fourteen (14) days from the date of submission of the account in accordance with subparagraph (c) above, CIL shall be entitled to:
- charge interest at the Interest Rate from the date of payment of the Consultant’s account by CIL to the date of reimbursement to CIL by the Client; and/or
- charge an administration fee as allowed by this Agreement.
9.2 CIL does not warrant the accuracy or quality of the Consultant’s work or warrant that the recommendations of the Consultant are appropriate or adequate or are fit for their purpose or that they are not given negligently. The Client agrees that they shall not make any demand on CIL or commence any legal proceedings against CIL and CIL shall have no liability, whether in negligence or otherwise, to the Client in relation to any work performed by the Consultant.
9.3 At the option of the Client and notified to CIL in Writing, the Client shall engage relevant Consultants required for the Project (after consultation with CIL) and shall be liable for all payments to such Consultants.
10. CIL’s Obligations
10.1 CIL warrants that it has the necessary skills, competence, and experience to undertake and complete the Services and shall at all times apply such skills, competence and experience in performance of the Services.
10.2 CIL accepts that it shall be appointed and shall be entitled to act as the Client’s agent for the purposes of the Project for the term of this Agreement.
10.3 If the Client shall instruct CIL to change the scope of the Services, CIL shall promptly notify the Client in writing of any variation in Fees pursuant to clause 5.2 of this Agreement. The Client agrees that additional fees may be payable.
10.4 CIL shall keep full records of the Services provided in the manner determined by CIL, and shall provide to the Client with updates with respect of the Services at the time and in the manner determined by CIL in CIL’s absolute discretion.
10.5 The Client shall;
(a) ensure CIL has clear and free access to the site address at all times to enable CIL and/or CIL’s agent to carry out the Services. CIL shall not be liable for any loss or damage to the address (including, without limitation, damage to pathways, driveways and concreted or paved or grassed areas) unless due to the negligence of CIL and/or CIL’s agent;(b) advise CIL in the event of any changed circumstances, or planned changes, to the site which might affect CIL’s ability to supply the Services in a safe manner;(c) prior to CIL commencing any work the Client must advise CIL of the precise location of all underground Services on the site and clearly mark the same. The underground mains & Services the Client must identify include, but are not limited to, electrical Services, gas Services, sewer Services, pumping Services, sewer connections, sewer sludge mains, water mains, irrigation pipes, telephone cables, fibre optic cables, oil pumping mains, and any other Services that may be on site.10.6 Whilst CIL will take all care to avoid damage to any underground Services the Client agrees to indemnify CIL in respect of all and any liability claims, loss, damage, costs and fines as a result of damage to Services not precisely located and notified as per clause 10.5(c).
10.7 Where the Client is responsibility to provide and erected any heavy plant equipment to enable the Services of the Project to proceed, it is agreed that all equipment erected will comply with industry safety standards and that any person erecting the equipment shall be suitably qualified to ensure its safe and proper erection and where necessary shall hold a current certificate of competency and/or be fully licenced.
11. Client’s Obligations
11.1 The Client appoints CIL as its agent for the purposes of the Project for the term of this Agreement.
11.2 The Client shall provide to CIL all documentation and other information as and when requested. The Client acknowledges that the ability of CIL to provide the Services is dependent upon the Client complying with this clause.
11.3 The Client acknowledges that if their requirements change during the term of the Agreement, the Fee may be subject to change.
11.4 The Client warrants that the nominated site of the Project complies with all relevant laws and regulations and undertakes to appoint consultants to identify, handle and/or remove any hazardous or toxic materials or substances which may be located on the site of the Project, prior to the commencement of this Agreement.
12.1 CIL and the Client agree that the Client’s obligations to CIL for the provision the Services shall not cease (and ownership of any Documentation shall not pass) until:
(a) the Client has paid CIL all amounts owing to CIL; and(b) the Client has met all other obligations due by the Client to CIL in respect of all contracts between CIL and the Client.12.2 It is further agreed that, until ownership of the Documentation passes to the Client in accordance with clause 12.1:
(a) the Client is only a bailee of the Documentation and must return the same to CIL on request; and(b) the Client irrevocably authorises CIL to enter any premises where CIL believes the Documentation is kept and recover possession thereof; and(c) CIL may commence proceedings to recover the Fee, notwithstanding that ownership of the Documentation has not passed to the Client.
13. Personal Property Securities Act 1999 (“PPSA”)
13.1 Upon assenting to these terms and conditions in writing the Client acknowledges and agrees that:
(a) these terms and conditions constitute a security agreement for the purposes of the PPSA; and(b) a security interest is taken in all Documentation, and/or any monetary obligation of the Client to CIL for Services, that have previously been provided (if any), and that will be provided in the future, by CIL to the Client.13.2 The Client undertakes to:
(a) sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which CIL may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register; and(b) indemnify, and upon demand reimburse, CIL for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register or releasing any registration made thereby; and(c) not register, or permit to be registered, a financing statement or a financing change statement in relation to Services in favour of a third party without the prior written consent of CIL.13.3 CIL and the Client agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms and conditions.
13.4 The Client waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA.
13.5 Unless otherwise agreed to in writing by CIL, the Client waives its right to receive a verification statement in accordance with section 148 of the PPSA.
13.6 The Client shall unconditionally ratify any actions taken by CIL under clauses 13.1 to 13.5.
14. Security and Charge
14.1 In consideration of CIL agreeing to provide Services, the Client charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Client either now or in the future, to secure the performance by the Client of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
14.2 The Client indemnifies CIL from and against all CIL’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising CIL’s rights under this clause.
14.3 The Client irrevocably appoints CIL and each director of CIL as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 14 including, but not limited to, signing any document on the Client’s behalf.
15.1 CIL agrees to hold and maintain Professional Indemnity insurance of five hundred thousand dollars ($500,000) for the duration of the agreed Services, and for a period of six (6) years beyond completion of the Services.
15.2 In the event that the Client requests CIL to obtain Professional Indemnity insurance for an amount in excess of five hundred thousand dollars ($500,000), CIL shall endeavour to obtain the required additional insurance, which shall be at the Client’s cost. Any such increase in indemnity insurance shall increase CIL’s maximum liability to the Client to the new indemnity amount. If CIL is unable to obtain increased Professional Indemnity Insurance, or if any material changes occur to the terms and conditions of cover, CIL shall advise the Client in writing accordingly.
16. Client’s Disclaimer
16.1 The Client hereby disclaims any right to rescind, or cancel any contract with CIL or to sue for damages or to claim restitution arising out of any inadvertent misrepresentation made to the Client by CIL and the Client acknowledges that the Services are purchased relying solely upon the Client’s skill and judgment.
17. Defects, Returns and Warranties
17.1 The Client shall inspect the Services on completion and shall within five (5) days of such time (being of the essence) notify CIL of any alleged defect, error or omission, shortage in quantity, damage or failure to comply with the description or quote. The Client shall afford CIL an opportunity to inspect/review the Services within a reasonable time following such 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 or damage. For defective Services, which CIL has agreed in writing that the Client is entitled to reject, CIL’s liability is limited to either (at CIL’s discretion) re-providing or rectifying the Services.
17.2 If, during the period of this Agreement or after the completion of this Agreement, the Client becomes aware of any problem with the design, or of any fault or defect in the Services, or of non-conformance with the Documentation, the Client must promptly (but not later than thirty (30) days after becoming aware of such defect) notify CIL of any other such alleged defect in the Documentation and/or Services. If the Client shall fail to comply with these provisions the Services shall be presumed to be free from any defect or damage.
17.3 Materials will not be accepted for return other than in accordance with 17.1 above.
17.4 For materials not manufactured by CIL, the warranty shall be the current warranty provided by the manufacturer of the materials. CIL shall not be bound by nor be responsible for any term, condition, representation or warranty other than that which is given by the manufacturer of the materials.
18. Consumer Guarantees Act 1993
18.1 If the Client is acquiring Services for the purposes of a trade or business, the Client acknowledges that the provisions of the Consumer Guarantees Act 1993 do not apply to the provision of Services by CIL to the Client.
19. Intellectual Property
19.1 The copyright in the Documentation (either in whole or in part) shall remain vested in CIL, and shall only be used by the Client at CIL’s discretion. However, CIL grants the Client a licence to use the Documentation for the completion of the Project for which the Documentation was intended, conditional upon the Fee properly due to CIL being paid.
19.2 The Client acknowledges that if they wish to reproduce the Project at another site, then a further fee will be due and payable to CIL. Upon payment of that fee CIL shall grant a further licence to use the Documentation to produce the Client’s Project, but this shall only be applicable to that particular site.
19.3 Any licence granted shall immediately be withdrawn if payment of the Fee (and the reproduction fee as outlined in clause 19.2) is not made on due date and any Documentation (including copies) must be immediately returned to CIL by the Client.
19.4 Where the Client provides CIL any materials including sketches, photographs, drawings, plans or concepts upon which CIL is to base the Services, the Client shall indemnify and keep indemnified CIL at all times against all actions, proceedings, claims, demands, liabilities, either express or implied, and all costs, losses, losses of profit, damages and expenses whatsoever which may be taken against CIL or incurred or become payable by CIL resulting or arising from any claim or infringement of any patent, registered design, trademark, copyright or any other property interest of a third party which may result out of the use by CIL of the materials.
19.5 CIL shall retain the original designs, including but not limited to, any CAD drawings and/or designs. The Client is entitled to one (1) set of designs as a record of the Services provided and shall be issued with one (1) master set of PDF files, additional sets or individual prints for any stage of the Project shall be charged at market rates unless otherwise agreed.
19.6 Any Intellectual Property materials prepared by CIL for any partially completed stage cannot be copied or used by the Client unless otherwise approved in writing by CIL.
19.7 The Client acknowledges that they may only supply the Documentation (including softcopy) to any third party, and/or publish the Documentation, with the express approval of CIL in writing.
19.8 CIL may photograph, video or record by any and all means the Project during construction, and upon completion for CIL’s own use and for use in exhibitions, or award competitions, or publication in journals.
19.9 If the Client publicises or permits the publication of the Project, CIL must be given full credit for its role tin the Project. CIL details shall be included on any or all Project signboards. If there is no such signboard, then the Client agrees that CIL may erect a signboard in an agreed location for the duration of the Project, and up to thirty (30) days after practical completion of the Project.
20.1 Each party agrees to treat all information and ideas communicated by the other party as confidential and each agrees not to divulge it to any third party, without the other party’s written consent.
20.2 The quotation and the information contained in the quotation provided by CIL to the Client is done so on a “commercial in confidence” basis thereby, the Client agrees not to reproduce or provide said information in any manner to any third party without the prior written approval of CIL.
21. Default and Consequences of Default
21.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at CIL’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
21.2 If the Client owes CIL any money, the Client shall indemnify CIL from and against all costs and disbursements incurred by CIL in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, CIL’s collection agency costs, and bank dishonour fees).
21.3 Without prejudice to CIL’s other remedies at law, CIL shall be entitled to cancel all, or any part, of any order of the Client which remains unfulfilled, and all amounts owing to CIL shall, whether or not due for payment, become immediately payable if:
(a) any money payable to CIL becomes overdue, or in CIL’s opinion the Client will be unable to make a payment when it falls due;(b) the Client has exceeded any applicable credit limit provided by CIL;(c) 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(d) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.
22.1 Without prejudice to any other remedies CIL may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions CIL may suspend or terminate the provision of Services to the Client. CIL will not be liable to the Client for any loss or damage the Client suffers because CIL has exercised its rights under this clause.
22.2 CIL may cancel any contract to which these terms and conditions apply, or cancel provision of Services at any time before the Services are delivered by giving twenty (20) day’s written notice to the Client. On giving such notice CIL shall repay to the Client any sums paid in respect of the Fee for Services which have not yet been performed by CIL, and CIL shall not be liable for any losses or damages (howsoever arising) from such cancellation.
22.3 In the event that the Client cancels this contract, or provision of the Services, the Client shall be liable for any and all loss incurred (whether direct or indirect) by CIL as a direct result of the cancellation (including, but not limited to, any loss of profits).
23. Construction Contracts Act 2002
23.1 The Client hereby expressly acknowledges that:
(a) CIL has the right to suspend the Services within five (5) working days of written notice of its intent to do so if a payment claim is served on the Client, and:
- the payment is not paid in full by the due date for payment and no payment schedule has been given by the Client; or
- a scheduled amount stated in a payment schedule issued by the Client in relation to the payment claim is not paid in full by the due date for its payment; or
- the Client has not complied with an adjudicator’s notice that the Client must pay an amount to CIL by a particular date; and
- CIL has given written notice to the Client of its intention to suspend the carrying out of construction work under the construction contract.
(b) if CIL suspends the Services, it:
- is not in breach of contract; and
- is not liable for any loss or damage whatsoever suffered, or alleged to be suffered, by the Client or by any person claiming through the Client; and
- is entitled to an extension of time to complete the contract; and
- keeps its rights under the contract including the right to terminate the contract; and may at any time lift the suspension, even if the amount has not been paid or an adjudicator’s determination has not been complied with.
(c) if CIL exercises the right to suspend the Services, the exercise of that right does not:
- affect any rights that would otherwise have been available to CIL under the Contractual Remedies Act 1979; or
- enable the Client to exercise any rights that may otherwise have been available to the Client under that Act as a direct consequence of CIL suspending the Services under this provision.
24. Privacy Act 1993
24.1 The Client authorises CIL (or CIL’s agent) to:
(a) access, collect, retain and use any information about the Client;
- (including any overdue fines balance information held by the Ministry of Justice) for the purpose of assessing the Client’s creditworthiness; or
- for the purpose of marketing products and services to the Client.
(b) disclose information about the Client, whether collected by CIL from the Client directly or obtained by CIL 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.24.2 Where the Client is an individual the authorities under clause 24.1 are authorities or consents for the purposes of the Privacy Act 1993.
24.3 The Client shall have the right to request CIL for a copy of the information about the Client retained by CIL and the right to request CIL to correct any incorrect information about the Client held by CIL.
25. Liability Limitations
25.1 The liability limitations of CIL, it partners, associates, and employees shall at no time exceed the amount of Professional Indemnity insurance cover carried by CIL.
25.2 The Client agrees, to the extent permitted by law, to indemnify CIL, its partners, associates, employees and any other person who may be sought to be made liable in excess of the limit of liability described in clause 15.1 in respect of any activity arising from or connected with these terms in respect of any claim of whatever kind, including negligence, that may be made by any person and any costs and expenses that may be incurred by CIL.
25.3 Although CIL will be liable to the Client for any loss or damage suffered by the Client arising out of a direct breach by CIL of CIL’s obligations under these terms and conditions, CIL shall be under no liability whatsoever to the Client for any indirect loss and/or expense (including loss of profit).
26. Dispute Resolution
26.1 All disputes and differences between the Client and CIL 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.
27.1 CIL may licence and/or assign all or any part of its rights and/or obligations under this contract without the Client’s consent.
27.2 The Client cannot licence or assign without the written approval of CIL.
28. Service of Notices
28.1 Any written notice given under this contract shall be deemed to have been given and received:
(a) by handing the notice to the other party, in person;(b) by leaving it at the address of the other party as stated in this contract;(c) by sending it by registered post to the address of the other party as stated in this contract;(d) if sent by facsimile transmission to the fax number of the other party as stated in this contract (if any), on receipt of confirmation of the transmission;(e) if sent by email to the other party’s last known email address.28.2 Any notice that is posted shall be deemed to have been served, unless the contrary is shown, at the time when by the ordinary course of post, the notice would have been delivered.
29.1 Each party will perform such further acts and execute and deliver all such further documents or instruments as are or become necessary to give effect to the terms of this Agreement.
29.2 Both parties warrant that they have the power to enter into this Agreement and have obtained all necessary authorisations to allow them to do so, they are not insolvent and that this Agreement creates binding and valid legal obligations on them.
29.3 The rights, powers or remedies provided in this Agreement are cumulative and not exclusive of the rights, powers, remedies provided by law independently of this Agreement.
29.4 If any provision of this Agreement is invalid, illegal, unlawful or otherwise incapable of being enforced, all other provisions of this Agreement shall nevertheless remain in full force and effect and be valid and fully enforceable and no other provision of this Agreement shall be construed to be dependent upon any provision unless so expressed in this Agreement.
29.5 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 Canterbury Courts of New Zealand.
29.6 CIL may elect to subcontract out any part of the Services but shall not be relieved from any liability or obligation under this contract by so doing. Furthermore, the Client agrees and understands that they have no authority to give any instruction to any of CIL’s sub-contractors without the authority of CIL.
29.7 The Client agrees that CIL may amend these terms and conditions by notifying the Client in writing. These changes shall be deemed to take effect from the date on which the Client accepts such changes, or otherwise at such time as the Client makes a further request for CIL to provide Services to the Client.
29.8 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.
29.9 This Agreement constitutes the entire Agreement between the parties with respect of the subject matter and contains all of the representations, undertakings, warranties, covenants and Agreements of the parties. This Agreement supersedes all prior negotiations, contracts, arrangements, understandings and Agreements with respect to such subject matter. There are no representations, undertakings, warranties, covenants or Agreements between the parties express or implied except as contained in this Agreement.
GENERAL WORK STAGES
Stage A/B –Information gathering & Surveying/ Feasibility & Scoping
For smaller projects our designer’s involvement at Stage A & B may well be largely dealt with at the initial meeting. Larger projects may well require more in depth investigations and possibly the involvement of co-consultants like surveyors or planners to help gather relevant information and properly scope the project.
Stage C – Concept Proposal
Working with other members of the team our landscape architect’s services at Stage C of the design process typically include the preparation of an outline landscape design indicating general spatial arrangement; an outline planting and material palettes and SID risk assessment; If required. We may also prepare landscape related information for an Outline Planning Application at this stage.
Stage D – Preliminary Design Proposal
Our landscape architect’s services at Stage D include the refinement and development the agreed outline design. With input from other members of the team we prepare a package of relative landscape related information for submitting to the Local Authority as part of a detailed planning submission. Our outputs at this stage include a landscape general arrangement drawing (indication types of material, boundary treatments and areas/ types of planting); a landscape design report; and a SID risk assessment.
Stage E – Developed Design Proposal
Our landscape architect’s services at Stage E include the design development of the planning consented scheme. Our outputs at this stage may include a landscape general arrangement drawing (which specifies material, boundary treatments and areas of planting), a planting plan (indicating species, size and density), general landscape construction detailing and CDM risk assessments. The level of landscape information produce at this stage is sufficient to submit to the Local Authority to clear landscape related planning conditions/RMA matters or Health & Safety legislative requirements.
Stages F/G – Tender & Production Information
Our Landscape architect’s services at Stage F/G include the preparation of a full landscape architect’s package of technical information. This enables the tender of the external works and soft landscape packages. Our outputs at this stage include landscape general arrangement drawings (defining areas of paving, kerbs, boundary treatments, street furniture, lighting); planting plans (indicating species, size and density, numbers and locations); soil depths plan; vegetation to be removed plan; demolition plan; setting out drawings; landscape levels drawings; typical landscape detail drawings; SID risk assessments and full external works and soft landscape specifications. We are also able to provide below ground service co-ordination plans.
Stages H/J – Tender Action & Contract Preparation
Our Landscape architect’s services at Stage H/J include helping our clients to appoint a suitable, competent landscape and external works contractor. Our input at this stage include advising on suitable contractors; attending contractor interviews; reviewing tender returns; issuing a tender report; and advising our clients on our recommended contractor.
Stage K – Operations on Site
Our Landscape architect’s services at Stage K help to ensure a quality landscape and external works scheme is delivered at completion. Our services offered at this stage include monitoring/inspecting the on-site landscape works; the production of landscape architect’s site inspection reports; the attendance at progress meetings; respond to Request For Information’s (RFI’s); respond to contractor’s landscape queries; amend landscape architect’s drawings/ specifications; inspect contractor proposed plant material at the nursery; provide landscape architect’s information for the Operations and Maintenance Manual.
Stage L – Completion & As Builts
Our Landscape architect’s services at Stage L take place at the end of the defects liability period. Our services offered at this stage are to carry out the final inspection of the landscape architectural works and to issue a final snagging list. If we are carrying out contract administrator’s duties, we will issue final certificate.
Our Landscape architect’s services included within additional services are the preparation of landscape management plans and/or landscape maintenance schedules; inspect contractor proposed plant material at the nursery; protracted/ detailed negotiations with Planning Authority; protracted/ detailed negotiations with Statutory Bodies; prepare reports on the condition/ quality of existing vegetation; prepare Open Space Assessment; prepare Landscape Assessment; prepare Landscape and Visual Assessment (LVIA); prepare rendered visualisation; prepare rendered plans; prepare rendered sections or prepare material for public consultation & key stakeholder Engagements.
Any additional tasks or services requested beyond the scope, contract of works or specification will be charged at an hourly rate. Additional tasks or services will need to be requested in writing by a pre-designated client contact in order to be validated and costed prior to being undertaken.
Professional evidential work in response to legislative and legal requirements (Environment Court, RMA, etc..) can be negotiated as required