Terms and Conditions
1.1 “Agreement” means the terms and conditions contained herein, together with any fee proposal, schedule, quotation, order, invoice or other document or amendments expressed to be supplemental to this Agreement.
1.2 “Business Day” means a day on which the major trading banks are open for normal business to be conducted, excluding a Saturday, Sunday, or public holiday.
1.3 “Client” means the person/s, entities, store holder, speakers, exhibitors, or any person acting on behalf of and with the authority of the Client requesting the Consultant 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 partnership, it shall bind each partner jointly and severally; and
(c) if the Client is a part of a Trust, shall be bound in their capacity as a trustee; and
(d) includes the Client’s executors, administrators, successors and permitted assigns.
1.4 “Commencement” means the commencement of this Agreement, being the date the Client accepts the terms and conditions of this Agreement in accordance with clause 3.1.
1.5 “Consultant” means 4E's Limited T/A 4E's Consulting, its successors and assigns.
1.6 “Cookies” means small files which are stored on a user’s computer. They are designed to hold a modest amount of data (including Personal Information) specific to a particular client and website and can be accessed either by the web server or the client’s computer. If the Client does not wish to allow Cookies to operate in the background when using the Consultant’s website, then the Client shall have the right to enable / disable the Cookies first by selecting the option to enable / disable provided on the website, prior to making enquiries via the website.
1.7 “Documentation” means any goods, documents, designs, drawings, or materials supplied, consumed, created or deposited incidentally by the Consultant in the course of it conducting, or supplying to the Client, any Services.
1.8 “Fee” means the Fee payable (plus any Goods and Services Tax (“GST”) where applicable) for the Services as agreed between the Consultant and the Client in accordance with clause 7 of this Contract.
1.10 “Project” means the Project as specified in the scope of services and/or fee proposal that will read in conjunction with this Agreement for which the Services are provided by the Consultant to the Client.
1.11 “Services” means all Services (including any items or books for purchase) supplied by the Consultant to the Client at the Client’s request from time to time.
1.12 “Sub-Contractors” means any person or persons engaged by the Consultant to provide specialised services on behalf of the Client.
1.13 “Venue” shall mean the location of conferences, events, exhibitions, or booth space available for hire provided by the Consultant to the Client.
2. Interpretation
2.1 In this Agreement, unless it is stated to the contrary or the context requires otherwise:
(a) words in the singular shall include the plural (and vice versa), words importing one gender shall include every gender, a reference to a person shall include any other legal entity of whatsoever kind (and vice versa) and where a word or a phrase is given a defined meaning in this Agreement, any other part of speech or other grammatical form of that word or phrase has a corresponding meaning;
(b) a reference to a statue, ordinance, code, or other law includes regulations and other statutory instruments under it and consolidations, amendments, re-enactments or replacements of any of them (whether of the same or any other legislative authority having jurisdiction);
(c) the words ‘include’ and ‘including’, and any variants of those words, will be treated as if followed by the words ‘without limitation’;
(d) a reference to dollars ($), is a reference to New Zealand currency;
(e) this Agreement is not to be interpreted against the Consultant merely because it prepared this Agreement;
(f) the following order of precedence (in descending order) will be applied to resolve any conflict, ambiguity, or discrepancy in this Agreement:
(i) terms and conditions; and
(ii) any schedules.
(g) any reference (other than in the calculation of consideration, or of any indemnity, reimbursement, or similar amount) to cost, expense or other similar amount is a reference to that cost exclusive of GST.
3. Acceptance
3.1 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 the Consultant.
3.2 In the event of any inconsistency between the terms and conditions of this Agreement and any other prior document or schedule that the parties have entered into, the terms of this Agreement shall prevail.
3.3 Any amendment to the terms and conditions contained in this Agreement may only be amended in writing by the consent of both parties.
3.4 The Client acknowledges that the supply of Services on credit shall not take effect until the Client has completed a credit application with the Consultant and it has been approved with a credit limit established for the account.
3.5 In the event that the supply of Services requested exceeds the Client’s credit limit and/or the account exceeds the payment terms, the Consultant reserves the right to refuse delivery.
3.6 The Client acknowledges and accepts that the Agreement is based on monthly hourly allocation of the Consultant, under or overuse, will pass into the following month. Additional hours in excess of the designated monthly allocation will be confirmed by email and charged accordingly in accordance with clause 7.2.
3.7 If the Client:
(a) is acquiring Services for the purposes of a trade or business, the Client acknowledges that the provisions of the Consumer Guarantees Act 1993 (“CGA”) do not apply to the supply of Services by the Consultant to the Client; and
(b) has provided the Consultant with an email address for communication purposes the Consultant will fully comply with all requirements under the Unsolicited Electronic Messages Act 2007.
3.8 Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 226 of the Agreement and Commercial Law Act 2017 or any other applicable provisions of that Act or any Regulations referred to in that Act.
4. Change in Control
4.1 The Client shall give the Consultant 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 the Consultant as a result of the Client’s failure to comply with this clause.
5. On-Line Ordering
5.1 The Client acknowledges and agrees that:
(a) the Consultant does not guarantee the website’s performance;
(b) display on the website does not guarantee the availability of any particular item; therefore, all orders placed through the website shall be subject to confirmation of acceptance by the Consultant
(c) on-line ordering may be unavailable from time to time for regularly scheduled maintenance and/or upgrades;
(d) there are inherent hazards in electronic distribution, and as such the Consultant cannot warrant against delays or errors in transmitting data between the Client and the Consultant including orders, and you agree that to the maximum extent permitted by law, the Consultant will not be liable for any losses which the Client suffers as a result of online ordering not being available or for delays or errors in transmitting orders;
(e) when making a transaction through the website, the Client’s information will pass through a secure server using SSL (secure sockets layer) encryption technology. The encryption process ensures that the Client’s information cannot be read by or altered by outside influences;
(f) if the Client is not the cardholder for any credit card being used to pay for the item, the Consultant shall be entitled to reasonably assume that the Client has received permission from the cardholder for use of the credit card for the transaction.
5.2 The Consultant reserves the right to terminate the Client’s order if it learns that the Client has provided false or misleading information, interfered with other users or the administration of the Consultant’s business, or violated these terms and conditions.
6. Subscriptions
6.1
The
commencement date of any subscriptions shall be the date of the first delivery
of the Services under a subscription plan, or from the date of signing,
6.2 The Client acknowledges and accepts that all fixed contracts are subject to periodic price reviews to allow for increases to the Consultant in the cost of labour and materials, which are beyond the control of the Consultant.
7.1 At the Consultant’s sole discretion, the Fee shall be either:
(a) as indicated on any invoice provided by the Consultant to the Client; or
(b) the Consultant’s proposed Fee (subject to clause 7.2) which will be valid for the period stated in the fee proposal or otherwise for a period of twenty (20) days.
7.2 The Consultant reserves the right to change the Fee:
(a) in the event of a variation to the fee proposal where the Client requests changes after commencement of the Services then the Consultant (at its sole discretion) shall be entitled not only to vary the Fee; or
(b) to include any reimbursable expenses as per clause 8; or
(c) for additional hours necessary over and above the agreed monthly allocation; or
(d) where additional costs are incurred by the Consultant due to unexpected delays, or receipt of approvals or certificates, etc.
7.3 Variations will be detailed 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. If the value for such variation has not been agreed between the parties, the Consultant shall be entitled to be paid a reasonable amount for such variation (charged for on the basis of the Consultant’s quotation), provided the work associated therewith has been completed by the Consultant. Payment for all variations must be made in full at their time of completion. The Client shall not, without the prior written consent of the Consultant, have any variation work carried out by any other party during the performance of the Services by the Consultant.
7.4 At the Consultant’s sole discretion, a non-refundable deposit may be required.
7.5 Time for payment for the Services being of the essence, the Fee will be payable by the Client on the date/s determined by the Consultant, which may be:
(a) on completion of the Services;
(b) by way of progress payments in accordance with the Consultant’s payment schedule;
(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 the Consultant.
7.6 Payment may be made by electronic/on-line banking, or by any other method as agreed to between the Client and the Consultant.
7.7 The Consultant may in its discretion allocate any payment received from the Client towards any invoice that the Consultant determines and may do so at the time of receipt or at any time afterwards.
7.8 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 nor to withhold payment of any invoice because part of that invoice is in dispute. Once in receipt of an invoice for payment, if any part of the invoice is in dispute, then the Client must notify the Consultant in writing within three (3) business days, the invoice shall remain due and payable for the full amount, until such time as the Consultant investigates the dispute claim, no credit shall be passed for refund until the review is completed. Failure to make payment may result in the Consultant placing the Client’s account into default and subject to default interest in accordance with clause 21.1.
7.9 Unless otherwise stated the Fee does not include GST. In addition to the Fee, the Client must pay to the Consultant an amount equal to any GST the Consultant must pay for any supply by the Consultant under this or any other agreement for providing the Consultant’s Services. 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.
8.1 The Consultant shall be reimbursed for all expenses reasonably and properly incurred in connection with the provision of the Services, except where such expenses are specifically stated in writing by the Consultant as being non-reimbursable. All reimbursable expenses (e.g., travel, accommodation, communications, marketing, couriers, etc.) will be charged at the cost involved (excluding GST) to the Consultant, plus an administration fee of ten percent (10%) thereof.
9. Extension of Agreement Period
9.1 The Consultant shall as per clause 7.2(a) 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 the Consultant. These matters shall include, but are not limited to delays caused by:
(a) response(s) to information request(s) made by the Consultant to the Client not being available when required;
(b) approval authorities’ response times for requests for preliminary decisions/information;
(c) information from Sub-Contractors, councils or referral agencies not being available when required;
(d) changes to the design brief being requested by the Client;
(e) time taken by the relevant authority for the granting of required approvals/certificates; or
(f) any other variation to this Agreement.
9.2 In the event that there is a break in the continuity of Services being provided by the Consultant due to the Client’s instructions or lack of instruction and such instructions are not received within thirty (30) calendar days of being requested by the Consultant, or from the last Client instruction, or all Services are suspended by the Consultant 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 thirty (30) days, 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 recommences, in addition to the amounts payable previously, the Client shall pay a recommencement Fee to the Consultant. The 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 of Services, unless other agreed.
10. Provision of the Services
10.1 Any time specified by the Consultant for delivery of the Services is an estimate only and the Consultant 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 supplied at the time and place as was arranged between both parties. In the event that the Consultant is unable to supply the Services as agreed solely due to any action or inaction of the Client then the Consultant 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.
11. Compliance with Laws
11.1 The Client and the Consultant 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 the Consultant, including any work health and safety laws, New Zealand Fire Safety regulations, Venue regulations and policies and any other relevant safety standards or legislation.
11.2 The Client shall obtain (at the expense of the Client) all licences, approvals and/or certificates that may be required to enable the Consultant to provide the Services.
11.3 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 at Work Act 2015 (the “HSW Act”) arising out of the engagement. The parties agree that for the purposes of the HSW Act, the Consultant shall not be the person who controls the place of work in terms of the HSW Act.
12. Nominated Sub-Contractors
12.1 The Consultant shall engage Sub-Contractors, as required, acting solely as agent on behalf of the Client and the following shall apply:
(a) the Consultant shall be entitled to enter into contracts with such Sub-Contractors in the name of the Client;
(b) the Client shall be responsible for all payments to such Sub-Contractors;
(c) where the Consultant pays the Sub-Contractors account on behalf of the Client, the Client shall reimburse the Consultant for the payment of the Sub-Contractors account together with an account-handling fee within seven (7) days from the date of submission of the account by the Consultant to the Client;
(d) if the Client does not reimburse the Consultant within seven (7) days from the date of submission of the account in accordance with sub-clause (c) above, the Consultant shall be entitled to:
(i) charge interest as per clause 21.1 from the date of payment of the Sub-Contractors account by the Consultant to the date of reimbursement to the Consultant by the Client; and/or
(ii) charge an administration fee as allowed by this Agreement.
12.2 The Consultant does not warrant the accuracy or quality of the Sub-Contractors work or warrant that the recommendations of the Sub-Contractors 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 the Consultant or commence any legal proceedings against the Consultant. The Consultant shall have no liability, whether in negligence or otherwise, to the Client in relation to any work performed by the Sub-Contractor.
12.3 At the option of the Client, and notified to the Consultant in writing, the Client shall engage relevant Sub-Contractors required for the Project (after consultation with the Consultant) and shall be liable for all payments to such Sub-Contractors.
13. Consultant’s Obligations
13.1 The Consultant 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.
13.2 The Consultant 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.
13.3 The Consultant represents that the Consultant will maintain current professional indemnity insurance.
13.4 If the Client shall instruct the Consultant to change the scope of the Services, the Consultant shall promptly notify the Client in writing of any variation in Fees pursuant to clause 7.3 of this Agreement. The Client agrees that additional fees may be payable.
13.5 The Consultant shall keep full records of the Services provided in the manner determined by the Consultant and shall provide to the Client with updates with respect of the Services at the time and in the manner determined by the Consultant in the Consultant’s absolute discretion.
14. Client’s Obligations
14.1 The Client appoints the Consultant as its agent for the purposes of the Project for the term of this Agreement.
14.2 The Client shall provide to the Consultant all documentation and other information as and when requested. The Client acknowledges that the ability of the Consultant to provide the Services is dependent upon the Client complying with this clause.
14.3 The Client acknowledges that if their requirements change during the term of the Agreement, the Fee may be subject to change as per clause 7.2.
15. Title
15.1 The Consultant and the Client agree that the Client’s obligations to the Consultant for the provision the Services shall not cease (and where it is intended that title to the Documentation is transferred to the Client, such ownership shall not pass) until:
(a) the Client has paid the Consultant all amounts owing to the Consultant; and
(b) the Client has met all other obligations due by the Client to the Consultant in respect of all contracts between the Consultant and the Client.
15.2 It is further agreed that, until ownership of the Documentation passes to the Client in accordance with clause 15.1:
(a) the Client is only a bailee of the Documentation and must return the Documentation to the Consultant on request;
(b) the Client irrevocably authorises the Consultant to enter any premises where the Consultant believes the Documentation is kept and recover possession of thereof; and
(c) the Consultant may commence proceedings to recover the Fee, notwithstanding that ownership of the Documentation has not passed to the Client.
15.3 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 in the Documentation or rights in respect of the Services shall continue.
16. Personal Property Securities Act 1999 (“PPSA”)
16.1 In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.
16.2 Upon assenting to these terms and conditions in writing the Client acknowledges and agrees that these terms and conditions constitute a security agreement for the purposes of the PPSA and creates a security interest in:
(a) all Documentation previously supplied by the Consultant to the Client;
(b) all Documentation will be supplied in the future by the Consultant to the Client and the proceeds from such Documentation as listed by the Consultant to the Client in invoices rendered from time to time; and
(c) all the Client’s present and after acquired property being a charge, including anything in respect of which the Client has at any time a sufficient right, interest or power to grant a security interest in for the purposes of securing repayment of all monetary obligations of the Client to the Consultant for Services – that have previously been provided and that will be provided in the future by the Consultant to the Client.
16.3 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 the Consultant may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register;
(b) indemnify, and upon demand reimburse, the Consultant for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register or releasing any Documentation charged thereby;
(c) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Documentation or the proceeds of such Documentation in favour of a third party without the prior written consent of the Consultant.
16.4 The Consultant and the Client agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms and conditions.
16.5 The Client waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, and 131 of the PPSA.
16.6 Unless otherwise agreed to in writing by the Consultant, the Client waives its right to receive a verification statement in accordance with section 148 of the PPSA.
16.7 The Client shall unconditionally ratify any actions taken by the Consultant under clauses 16.1 to 16.6.
16.8 Subject to any express provisions to the contrary (including those contained in this clause 16), nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.
17.1 In consideration of the Consultant agreeing to supply 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, and the Client grants a security interest in all of its present and after-acquired property, 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). The terms of the charge and security interest are the terms of Memorandum 2018/4344 registered pursuant to s.209 of the Land Transfer Act 2017.
17.2 The Client indemnifies the Consultant from and against all the Consultant’s costs and disbursements including legal costs of a solicitor and own client basis incurred in exercising the Consultant’s rights under this clause.
17.3 The Client irrevocably appoints the Consultant and each director of the Consultant as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 17 including, but not limited to, signing any document on the Client’s behalf.
18. Errors, Omissions and Warranties
18.1 The Client shall inspect the Consultant’s Services on completion and must within seven (7) days of such time notify the Consultant in writing of any evident defect in the Services provided (including the Consultant’s workmanship), any error or omission, or of any other failure by the Consultant to comply with the description of, or proposal for, the Services which the Consultant was to provide. The Client must notify any other alleged defect in the Consultant’s Services as soon as is reasonably possible after any such defect becomes evident. Upon such notification the Client must allow the Consultant, within a reasonable time following such notification, to review the Services that were provided. If the Client shall fail to comply with these provisions, the Services shall be conclusively presumed to be in accordance with the terms and conditions and free from any defect or damage.
18.2 For defective Services, which the Consultant has agreed in writing that the Client is entitled to reject, the Consultant’s liability is:
(a) limited to either (at the Consultant’s discretion) rectifying the Services or re-providing the Services, provided that the Client has complied with the provisions of clause 18; or
(b) otherwise negated absolutely.
19. Intellectual Property
19.1 The Client and the Consultant agree that any and all IP owned by either party prior to the Commencement of this Agreement (Existing IP), shall remain the sole and exclusive property of that party. Under no circumstances shall a party use the Existing IP of the other party, except as otherwise set out in this Agreement or, with the express written approval of that party.
19.2 The Client acknowledges that any IP developed by the Consultant as part of conducting or supplying Services to the Client, shall remain the sole and exclusive property of the Consultant, and under no circumstances shall the Client use this IP, except as otherwise set out in this Agreement or, with the express written approval of the Consultant.
19.3 Where the Consultant has supplied, designed, drawn or developed Documentation for the Client in the course of it supplying Services to the Client, then the IP in such Documentation shall remain the sole and exclusive property of the Consultant, and such Documentation may only be used by the Client in accordance with this Agreement, or with the Consultant’s express written approval The Consultant grants the Client a non-exclusive licence to use such Documentation to complete the Client’s Project, for which they were intended, conditional upon all of the following:
(a) the licence applies only to the individual Project (or part thereof) to which the Documentation relates.
(b) the Fee properly due to the Consultant has been paid.
19.4 The Client acknowledges that if they wish to reproduce the Project, then a further Fee will be due and payable to the Consultant. Upon payment of that Fee, the Consultant shall grant a further licence to use the required Documentation to complete the reproduced Project, but this licence shall only be applicable to that reproduction.
19.5 Any licence granted by the Consultant in accordance with this clause 19, shall immediately be withdrawn by the Consultant if payment of the Fee is not made on due date. In the event that the Consultant withdraws the licence in accordance with this clause, the Client shall promptly return the Documentation (including any copies) within five (5) Business Days following the Consultant’s withdrawal. For the avoidance of any doubt, the Client shall not retain any copies of the Documentation or any part thereof, unless otherwise agreed in writing by the Consultant.
19.6
19.7 The Consultant shall retain the original Documentation, including, but not limited to, any CAD drawings and/or designs.
19.8 The Consultant may, at its discretion, photograph, video or record by any and all means the Project for the duration thereof, and upon completion, for the Consultant’s own use and for use in exhibitions, events, conferences or award competitions, or publication in journals.
19.9 If the Client publicises or publishes any information about the Project, the Consultant must be given full credit for its role in the Project. The Consultant’s details (namely, the Consultant’s name and role in the Project) shall be included on any or all Project signboards. If there is no such signboard, then the Client agrees that the Consultant may erect a signboard in an agreed location for the duration of the Project and up to thirty (30) days after completion thereof.
20. Confidentiality
20.1
Each
party agrees to treat all
20.2 The Fee Proposal, and the information contained therein, provided by the Consultant 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 the Consultant.
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 the Consultant’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 the Consultant any money the Client shall indemnify the Consultant from and against all costs and disbursements incurred by the Consultant in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, the Consultant’s collection agency costs, and bank dishonour fees).
21.3 Further to any other rights or remedies the Consultant may have under this Agreement, if a Client has made payment to the Consultant, and the transaction is subsequently reversed, the Client shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by the Consultant under this clause 21, where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Client’s obligations under this Agreement.
21.4 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 unfulfilled and all amounts owing to the Consultant shall, whether or not due for payment, become immediately payable if:
(a) any money payable to the Consultant becomes overdue, or in the Consultant’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 the Consultant;
(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. Cancellation and Termination
22.1 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) under these terms and conditions the Consultant may suspend or terminate the supply of Services to the Client. The Consultant will not be liable to the Client for any loss or damage the Client suffers because the Consultant has exercised its rights under this clause.
22.2 The Consultant may cancel any Agreement to which these terms and conditions apply or cancel provision of Services at any time before the Services are completed, by giving 20 day’s written notice to the Client. On giving such notice the Consultant shall repay to the Client any sums paid in respect of the Fee for Services which have not yet been performed by the Consultant, and the Consultant shall not be liable for any losses or damages (howsoever arising) from such cancellation.
22.3 In the event that the Client cancels the Agreement, or provision of the Services, the Client shall be liable for the following (being the costs of any loss (direct and indirect) incurred by the Consultant for such cancellation):
(a) for presentation Services: the deposit, or an amount equivalent to the percentage of Services provided (whichever is the greater); or
(b) for training and development:
(i) within the first three (3) months from the date for provision of the Services: fifty percent (50%) of the remaining Fee/s will apply; or
(ii) after three (3) months from the date for provision of the Services: the full Fee/s will be due.
22.4 Either party may terminate the Agreement by notice in writing to the other if the party notified fails to observe any term of these terms and conditions and fails to rectify this breach, to the satisfaction of the notifying party, following the expiration of twenty (20) days’ notice of the breach being given in writing by the notifying party to the other party.
(a) the Consultant shall repay to the Client any money paid by the Client for the Services, less any amounts owing to the Consultant for Services provided up to the date of termination; or
(b) the Client shall pay the Consultant for all Services provided up until the termination date (including any amount to discharge any liability of the Consultant to third parties incurred in relation to any Services originally envisaged pursuant to the Client's initial instructions).
23. Privacy Policy
23.1 All emails, documents, images, or other recorded information held or used by the Consultant is “Personal Information” as defined and referred to in clause 23.3 and therefore considered confidential. The Consultant acknowledges its obligation in relation to the handling, use, disclosure and processing of Personal Information pursuant to the Privacy Act 2020 (“the Act”) including Part II of the OECD Guidelines and as set out in the Act and any statutory requirements where relevant in a European Economic Area “EEA” under the EU Data Privacy Laws (including the General Data Protection Regulation “GDPR”) (collectively, “EU Data Privacy Laws”). The Consultant acknowledges that in the event it becomes aware of any data breaches and/or disclosure of the Client’s Personal Information, held by the Consultant that may result in serious harm to the Client, the Consultant will notify the Client in accordance with the Act and/or the GDPR. Any release of such Personal Information must be in accordance with the Act and the GDPR (where relevant) and must be approved by the Client by written consent, unless subject to an operation of law.
23.2 Notwithstanding clause 23.1, privacy limitations will extend to the Consultant in respect of Cookies where the Client utilises the Consultant’s website to make enquiries. The Consultant agrees to display reference to such Cookies and/or similar tracking technologies, such as pixels and web beacons (if applicable), such technology allows the collection of Personal Information such as the Client’s:
(a) IP address, browser, email client type and other similar details;
(b) tracking website usage and traffic; and
(c) reports are available to the Consultant when the Consultant sends an email to the Client, so the Consultant may collect and review that information (“collectively Personal Information”)
If the Client consents to the Consultant’s use of Cookies on the Consultant’s website and later wishes to withdraw that consent, the Client may manage and control the Consultant’s privacy controls via the Client’s web browser, including removing Cookies by deleting them from the browser history when exiting the website.
23.3 The Client authorises the Consultant or the Consultant’s agent to:
(a) access, collect, retain and use any information about the Client;
(i) including, name, address, D.O.B, occupation, driver’s license details, electronic contact (email, Facebook or Twitter details), medical insurance details or next of kin and other contact information (where applicable), previous credit applications, credit history or any overdue fines balance information held by the Ministry of Justice for the purpose of assessing the Client’s creditworthiness; or
(ii) for the purpose of marketing products and services to the Client.
(b) 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.
23.4 Where the Client is an individual the authorities under clause 23.3 are authorities or consents for the purposes of the Privacy Act 2020.
23.5 The Client shall have the right to request (by e-mail) from the Consultant, a copy of the Personal Information about the Client retained by the Consultant and the right to request that the Consultant correct any incorrect Personal Information.
23.6 The Consultant will destroy Personal Information upon the Client’s request (by e-mail) or if it is no longer required unless it is required in order to fulfil the obligations of this Agreement or is required to be maintained and/or stored in accordance with the law.
23.7 The Client can make a privacy complaint by contacting the Consultant via e-mail. The Consultant will respond to that complaint within seven (7) days of receipt and will take all reasonable steps to make a decision as to the complaint within twenty (20) days of receipt of the complaint. In the event that the Client is not satisfied with the resolution provided, the Client can make a complaint to the Privacy Commissioner at http://www.privacy.org.nz.
24. Liability Limitations
24.1 The Consultant’s liability to the Client in anyway arising out of, or in connection with, this Agreement and the Services (including in contract, tort, under statute or in equity) shall be limited to damages which under no circumstances shall exceed the amount of Professional Indemnity Insurance cover carried by the Consultant.
24.2 The Client hereby irrevocably releases the Consultant from all claims (including any cost, expense, loss, damage, claim, liability, action or proceeding, whether or not presently ascertained, immediate, future or contingent, and includes legal costs on a full indemnity basis) suffered or incurred by the Client (or any person claiming through or on behalf of the Client) other than to the extent caused or contributed to by:
(a) a negligent act or omission of the Consultant; or
(b) a breach of, or default under, this Agreement by the Consultant.
24.3 The Client’s release under clause 24.2 is reduced proportionately to the extent that an act, default, or omission of the Consultant has caused or contributed to the claim.
24.4 Notwithstanding clauses 24.2 to 24.3, the Consultant shall not be liable for any loss or damage sustained or sustainable by a Client in relation to:
(a) errors occurring in plans, designs or specifications not created or prepared by the Consultant; or
(b) errors occurring during the course of any services which are not provided by, nor the responsibility of, the Consultant; or
(c) the use of any Documentation or other information of advice without the approval of the Consultant.
24.5 The Consultant shall accept no liability in regards to any dealings, promotions or activities between the Client and advertisers or third party contractors.
25. Service of Notices
25.1 Any written notice given under this Agreement 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 Agreement;
(c) by sending it by registered post to the address of the other party as stated in this Agreement;
(d) if sent by facsimile transmission to the fax number of the other party as stated in this Agreement (if any), on receipt of confirmation of the transmission;
(e) if sent by email to the other party’s last known email address.
25.2 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.
26. Trusts
26.1 If the Client at any time upon or subsequent to entering in to the Agreement is acting in the capacity of trustee of any trust (“Trust”) then whether or not the Consultant may have notice of the Trust, the Client covenants with the Consultant as follows:
(a) the Agreement extends to all rights of indemnity which the Client now or subsequently may have against the Trust and the trust fund;
(b) the Client has full and complete power and authority under the Trust to enter into the Agreement and the provisions of the Trust do not purport to exclude or take away the right of indemnity of the Client against the Trust or the trust fund. The Client will not release the right of indemnity or commit any breach of trust or be a party to any other action which might prejudice that right of indemnity;
(c) the Client will not without consent in writing of the Consultant (the Consultant will not unreasonably withhold consent), cause, permit, or suffer to happen any of the following events:
(i) the removal, replacement or retirement of the Client as trustee of the Trust;
(ii) any alteration to or variation of the terms of the Trust;
(iii) any advancement or distribution of capital of the Trust; or
(iv) any resettlement of the trust property.
27. General
27.1 Any dispute or difference arising as to the interpretation of these terms and conditions or as to any matter arising herein, shall be submitted to, and settled by, mediation before resorting to any external dispute resolution mechanisms (including arbitration or court proceedings) by notifying the other party in writing setting out the reason for the dispute. The parties shall share equally the mediator’s fees. Should mediation fail to resolve the dispute, the parties shall be free to pursue other dispute resolution avenues.
27.2 The failure by either party to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect that party’s right to subsequently enforce that provision. 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.
27.3 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 Canterbury, New Zealand.
27.4 Subject to the CGA, the Consultant shall be under no liability whatsoever to the Client for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by the Consultant of these terms and conditions (alternatively the Consultant’s liability shall be limited to damages which under no circumstances shall exceed the Fee of the Services).
27.5 The Consultant may licence and/or assign all or any part of its rights and/or obligations under this Agreement without the Client’s consent.
27.6 The Client cannot licence or assign without the written approval of the Consultant.
27.7 The Consultant may elect to subcontract out any part of the Services but shall not be relieved from any liability or obligation under this Agreement by so doing. Furthermore, the Client agrees and understands that they have no authority to give any instruction to any of the Consultant’s sub-contractors without the authority of the Consultant.
27.8 The Client agrees that the Consultant may amend their general terms and conditions for subsequent future Agreements with the Client by disclosing such to 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 the Consultant to provide Services to the Client.
27.9 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm, national or global pandemics and/or the implementation of regulation, directions, rules or measures being enforced by Governments or embargo, including, but not limited to, any Government imposed border lockdowns, etc, (“Force Majeure”) or other event beyond the reasonable control of either party. This clause does not apply to a failure by the Client to make a payment to the Consultant.
27.10 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.
27.11 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.
Additional Terms and Conditions for Events, Conferences and Exhibition Bookings
28. Events, Conferences and Exhibition Bookings and Payment
28.1 The Client can make bookings on-line or by e-mail to the Consultant. Where the Client has made a booking by e-mail less than 48 hours from the intended commencement of the Services, they must confirm such booking with the Consultant by phone to ensure that adequate time is allowed to reserve the Venue, and that all the details of the Services to be provided by the Consultant are correct.
28.2 In accordance with clause 7, the Client shall pay the Consultant the following:
(a) a fifty percent (50%) deposit of the total Fee within five (5) business days of confirmation of acceptance from the Consultant to reserve the booking; or
(b) by way of progress payments in accordance with the Consultant’s payment schedule.
28.3 Booths will be allocated on a ‘first come, first served’ basis after priority for maximum exposure is given to sponsors.
28.4 The Consultant;
(a) reserves the right to amend the floorplan or alter the exact location of the booths within the floorplan to accommodate sales; and
(b) will endeavour to consult with the Client who are directly affected whenever possible, and the Client undertakes to agree to such alteration(s).
28.5 If the Client cancels the booking or fails to make payment within the specified time frame then the Client shall be liable to the Consultant for any losses or costs incurred by the Consultant (including, but not limited to, any loss of profits) up to the time of, or as a result of the cancellation, notwithstanding that at the Consultant’s sole discretion:
(a) a minimum cancellation fee may be applicable; or
(b) the deposit shall be forfeited, and the space made available for resale.
28.6 Any cancellation requests must be submitted in writing before any form of refund will be considered.
28.7 The Fees does not include insurance, cleaning, loading, and handling of equipment, staff, telephones, exhibit, conference, or events dressing, advertising, or promotional material other than what is paid for directly to the Consultant via agreement.
29. Specifications of Space
29.1 The standard booth space sizes at all Venues are 3m x 3m. Market stalls are 2m in length with only a back wall panel. Booths include black velcro receptive wall panels, 4-way 10amp power to the site.
29.2 The Client must advise the Consultant of any special requirements at least three (3) weeks prior to the event date. All special requirements are subject to approval from the Consultant.
30. Client Obligations
30.1 It is the Client’s responsibility to educate attendees about the industry/product/service they represent in the most positive, competent, articulate, and professional manner possible. Business casual attire is appropriate (the Consultant recommends wearing comfortable shoes).
30.2 Alcohol, illegal drugs, smoking, disruptive and/or disrespectful behaviour are prohibited.
30.3 The Client must ensure that:
(a) the booth is fully staffed and continually kept open throughout the course of the event;
(b) walkways are kept clear at all times;
(c) the space is kept clean and tidy and free from rubbish at all times;
(d) business is conducted in an appropriate manner from the booth considering the Venue, the Consultant, other exhibitors, and visitors.
30.4 The Client is required to arrange their displays to not obstruct the general view or conceal other exhibits. No signs or banners are to be placed outside of the booth assigned to the Client. Event personnel may not stand in the aisles or hand out materials, flyers, or bags in the aisles of the event and must do so only within the allocated booth area.
30.5 Loudspeakers, radios, televisions or the operation of any machinery or equipment which is of sufficient volume to be distracting to neighbouring exhibitors or event or conference attendees are not permitted. Public address systems used to attract the attention of visitors passing near the Client’s booth are also not permitted.
30.6 Fund raising for non-profit groups or charities will be permitted only with written permission from the Consultant.
30.7 If the Client is displaying products or any material which is determined, in the Consultant’s discretion, to be inappropriate, including, for example, materials that are offensive, disparaging, or discriminatory will be asked to remove its products or exhibit.
30.8 All materials used in the event must be non-flammable and non-conforming materials must be removed immediately from the Venue. All packing containers are to be removed from the Venue floor and must not be stored under tables or behind displays. The Consultant will endeavour to provide space for storage of boxes, but this is not a guarantee.
30.9 The Client may not substitute or sublease any booth space.
30.10 The property of the Client is deemed to always be under the Client’s control and oversight, including in transit to and from the Venue and within the confines of the Client’s booth. The booth, materials, displays and equipment should not be left unattended at any time. The Client is wholly responsible for the security of the Client’s materials during set up, event hours and pack out/dismantling.
30.11 The Consultant accepts no responsibility whatsoever for any loss of or damage to or theft of property (including materials, displays and equipment) belonging to the Client.
30.12 All marketing material/signage in each booth is for the company exhibiting in that booth. There is to be no cross marketing with other exhibitors.
31. Insurance
31.1 By the Client completing and submitting the booking application form of the Consultant, the Client agrees to indemnify and hold harmless the Consultant and the Venue from all claims, demands, damages, and liability of any kind, including loss, damage or destruction of property, breach of contract, injury, negligence, abuse, or wilful misconduct on the part of any party.
31.2 Neither the Consultant nor the Venue owners provide insurance for the benefit of the Client. It shall be the Client’s responsibility:
(a) to carry insurance on the Client’s property or for any other purpose; and
(b) take out all necessary insurance, including Public Liability insurance for a minimum indemnity of $1,000,000.00 at the Client’s own expense. The Consultant may ask for a copy of the insurance policy at any time.
32. Marketing
32.1 The Consultant:
(a) may produce an official programme listing exhibitors and speakers;
(b) accepts no responsibility for any mis-description or any other error; and
(c) gives no warranty as to the type or extent of the promotion or as to attendance numbers at any Venue.
32.2 By making a booking for a space the Client gives consent to the Consultant to take and use photographs, images and any video footage of the Client, or the space for any of the Consultant’s promotional purposes in perpetuity in any media without any payment to the Client.
32.3 The Client is permitted to take photographs for the Client’s own promotional and marketing use provided that the Client does not infringe on the Consultants or parties at the Venue’s intellectual property rights they hold.
33. Set Up/ Pack In and Pack Out/ Dismantling
33.1 Set-up times will be as follows:
33.2 Saturday 6th March, 8am – 11am.
33.3 These times must be adhered to unless a specific time outside of the allocated times has been requested in writing by the Client and granted by the Consultant.
33.4 If the Client does not arrive (or call the Consultant) by 8am on the first day of the event, the Client’s booth space(s) will be given to a wait-listed party and the Client will not receive a refund, unless prior arrangements have been made with the Consultant.
33.5 Booth dismantles do not occur until after the event closes. The Client must not disrupt the event by dismantling early. The Client must take care when installing/dismantling equipment and stand and not cause damage to the Venue carpet, walls, floor and booths, including all panels, fascia and lighting
33.6 All exhibits must be packed out by 6.00pm on a Sunday.
33.7 The Client:
(a) is responsible for arranging couriers and transportation of equipment and exhibits to the Venue;
(b) must make their own arrangements for storage of exhibits and equipment prior, during and after the event; and
(c) will be solely responsible for the cost of remedying any damage and repairs howsoever caused to the Venue carpet, walls, floor and. All property damaged or destroyed by the Client must be replaced to its original condition at the expense of the Client.