Conditions of Engagement
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1. |
GENERAL |
| 1.1 | These Standard Terms of Engagement apply to services provided by Alan Bickers of JAYAL ENTERPRISES LTD (hereinafter referred to as “Jayal”) to the Client. |
2. |
BASIS OF PROFESSIONAL FEES |
| 2.1 | Unless otherwise agreed Jayal will provide services to the Client on the basis of a time-based fees plus disbursements as hereinafter specified. |
| 2.2 | The schedule of fees applicable to individual persons or personnel class will be provided by Jayal. |
1. |
Any estimate of fees provided by Jayal is provided in good faith on the basis of the Client’s brief and the best available information. Unless stated as a quotation or guaranteed maximum price, any estimate will be subject to variation based on the actual amount of time applied by Jayal to the project to meet the Client’s brief and actual disbursements incurred by Jayal. |
2. |
Chargeable time will include time of travelling by Jayal personnel on behalf of Client. |
3. |
Where a daily fee is specified this shall apply after 6 chargeable hours in any one day. |
3. |
DISBURSEMENTS |
| 3.1 | Unless otherwise agreed, disbursements will be charged on the following basis: |
| 3.2 | Accommodation and meal costs incurred while travelling away from Tauranga will be charged at actual cost. |
| 3.3 | Advertising arranged on the Client’s behalf and paid for by Jayal will be charged at cost plus 10%. |
| 3.4 | Consultants’ Fees - Where the Client nominates or directs Jayal to engage and supervise secondary consultants, payments made directly by Jayal to such consultants will be charged at cost plus 10%. |
| 3.5 | Contractors’ Payments - Where Jayal is required by the Client to engage and supervise contractors carrying out work for the Client, any payments made directly by Jayal to such contractors on the Clients’ behalf will be charged at cost plus 10%. |
| 3.6 | Printing, binding and photocopying will be charged at cost plus 10%. Jayal will normally provide two bound copies of any reports to the Client unless otherwise specified, together with a “master” set in hard copy and/or if requested, electronic format. |
| 3.7 | Toll calls, faxes and cellular phone charges will be charged at actual cost. |
| 3.8 | Travel and associated costs, including airfares, taxis and rental vehicles, will be charged at actual cost. Travel by motor vehicle will be charged at a rate no greater than that recommended by the Automobile Association in its most recent survey of car operating costs. |
| 3.9 | Special graphics or illustrations prepared on the Client’s behalf will be charged at cost plus 10%. |
| 3.10 | Other costs directly associated with the project and agreed by the Client will be charged at no greater than cost plus 10%. |
4. |
GOODS AND SERVICES TAX |
| 4.1 | Unless otherwise stated, all quoted fees, rates and charges shall be deemed to exclude Government Goods and Services Tax (GST) which shall apply at the relevant rate. |
5. |
TERMS OF PAYMENT |
| 5.1 | Unless other terms of payment are agreed, Jayal shall be entitled to monthly progress payments. |
| 5.2 | Payment shall be due on the 20th of the month following invoicing. |
| 5.3 | Penalty for late payment shall be applied at the discretion of Jayal at the current bank overdraft interest rate. |
6. |
CANCELLATION OR SUSPENSION |
| 6.1 | The Client may suspend or cancel the project by notice to Jayal who shall immediately make arrangements to stop work and minimise further expenditure. |
| 6.2 | Jayal shall be entitled to payments for all fees due to receipt of notice for suspension or cancellation and for all disbursements for costs committed. |
7. |
CONFIDENTIALITY |
| 7.1 | The terms of agreement between Jayal and the Client, and basis of fees including estimated and final costs, shall be confidential and neither party shall release information about the engagement without agreement of the other, unless this is knowledge in the public domain. |
| 7.2 | All information supplied to Jayal by the Client shall be confidential and used only in association with work for the Client. |
| 7.3 | Where so required by Jayal, information, reports and correspondence provided by Jayal to the Client shall be privileged and confidential. |
| 7.4 | Jayal shall not release public or media statements concerning the Project within two years of completion of the Project without the approval of the Client which shall not be unreasonably withheld. |
| 7.5 | The Client shall not make public or media statements relating to the services provided by Jayal without prior agreement of Jayal. |
8. |
COPYRIGHT |
| 8.1 | Unless otherwise agreed, Jayal shall retain the copyright of all original documents prepared by them. |
| 8.2 | The Client shall be entitled to copy, without additional payment, any reports or other documents written or prepared by Jayal for the Client, provided that they are used only for the purposes for which they were intended. |
| 8.3 | The ownership of data and factual information collected by Jayal for the Client, shall, after payment, lie with the Client. |
9. |
DISPUTES |
| 9.1 | Disputes shall in the first instance, be referred to conciliation for settlement. |
| 9.2 | Unresolved disputes shall be referred to arbitration in accordance with the Arbitration Act 1996. |
10. |
DUTY OF CARE, LIABILITY AND INDEMNITY |
| 10.1 | Jayal shall exercise reasonable skill, care and diligence in the performance of its obligations to the Client. |
| 10.2 | Jayal shall only be liable to pay damages to the Client arising out of or in connection with the project if a breach of Clause 10.1 is established. Jayal shall not be considered liable for any loss or damage unless a claim is made by the client within a period of 2 years from the completion of the service provided by Jayal. |
| 10.3 | If Jayal is found to be liable to the Client, the maximum amount of damages payable shall be limited to the lesser of five times the professional fees or $500,000. The maximum amount may be increased by agreement subject to Clause 10.4. |
| 10.4 | Jayal will keep in force professional indemnity insurance cover to the minimum value of $500,000. Where the Client requires an increased level of indemnity, Jayal shall endeavour to obtain the increased level of professional indemnity cover and the cost of such additional insurance shall be at the Client’s expense but if the required cover is not available, the liability of Jayal shall be limited as set out in Clause 10.3 if the Client elects to continue to engage Jayal. |
| 10.5 | Unless specifically identified in the contract of engagement Jayal shall not have a duty of care to any third party. As a separate and independent obligation given in consideration of Jayal undertaking the project the Client shall indemnify Jayal against the adverse effects of all claims by third parties arising out of the project. |
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