Terms
and
Conditions
1) The Parties
The Person, Persons or Entity filling in the digital online form, or paying money for the service shall be referred to as the "Client" herein.
The Person, Persons or Entity providing the service shall be referred to as the "Consultant" herein.
2) The Works
The works shall be limited to:
1) Undertake a Desktop Study of the site and wider geography in accordance with NZS1547.
2) Undertake a Site Study and Exploration in accordance with NZS1547. This work will include, but not be limited too the digging of holes in lawns and gardens, vehicles driving onsite and across lawns and over road crossings, and boring holes, etc. This damage will not be re-instated.
3) Design and Specify an Onsite Septic System.
4) Design and Specify a Land Disposal Area.
5) Prepare documentation for Local Council.
6) Complete the Hydraulic Conductivity Falling Head Test at the Discretion of the Consultant.
These are herein referred to as the "Works".
3) The Exclusions:
The works shall specifically exclude:
1) Any item not listed as in “the works” section above.
2) Resource Consent Preparation or Application
3) Reinstatement of damage to the site.
4) Geotechnical Pair Review
5) Commissioning and Operational Reports or Producer Statements
6) Site Plans, Section Drawings and Building Consent application, as these are expected to be completed by your Architect or Designer.
4) The Site
The site for which the "Works" are to be conducted shall be nominated by the Client. The Client hereby indemnified the consultant wholly and irrevocably that the Client has the right to the land and the right to permit access and the "Works" to be completed. The location nominated by the Client shall herein be referred to as the "Site".
5) Right of Access
The Client herein permits access to the “Site” to the Consultant for the purposes of completing the “Works”. The Client understands site and access damage will occur in order to undertake the works. Reinstatement of the site is not included within the scope of this fee or agreement.
6) Health & Safety
The Client is wholly and completely responsible for the Health and Safety of the site and persons on the site as described in the Health and Safety at Work Act 2015. The Client shall instruct the Consultant on their Health and Safety management plan before entering the site and ensure its adherence. The Client is wholly responsible for health and safety at all times and shall be considered a PCBU as outlined in under the Health and Safety at Work Act 2015.
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The Consultant has not and will not assume any duty imposed on the Client pursuant to the Health and Safety at Work Act 2015 (“the Act”) in connection with the Agreement.
7) Standards
The Consultant shall perform the Services in accordance with AS/NZS1547:2012, TP58 and/or BOPRC Form 5 only.
8) Consumer Guarantees Act
The Client and the Consultant agree that where all or any of, the Services are acquired for the purposes of a business the provisions of the Consumer Guarantees Act 1993 are excluded in relation to those Services. However, nothing in this Agreement shall restrict, negate, modify or limit any of the Client’s rights under the Consumer Guarantees Act 1993 where the Services acquired are of a kind ordinarily acquired for personal, domestic or household use or consumption and the Client is not acquiring the Services for the purpose of a business.
9) Materials
The Client shall provide to the Consultant, free of cost, as soon as practicable following any request for information, all information in the Client’s power to obtain which may relate to the Services. The Consultant shall not, without the Client’s prior consent, use information provided by the Client for purposes unrelated to the Services. In providing the information to the Consultant, the Client shall ensure compliance with the Copyright Act 1994 and shall identify any proprietary rights that any other person may have in any information provided.
10) Variation to Works
The Client may request variations to the "Works" in writing or may request the Consultant to submit proposals for variations to the "Works". All variations shall incur a minimum charge of $241.66 + GST to cover administration and paperwork.
11) Fees and Expenses
The Client shall pay the Consultant for the Services the fees and expenses at the times and in the manner set out by the Consultant. Where this Agreement has been entered by an agent (or a person purporting to act as agent) on behalf of the Client, the agent and Client shall be jointly and severally liable for payment of all fees and expenses due to the Consultant under this Agreement.
12) Payment Terms
All amounts payable by the Client shall be due within 5 calender days of issue of each GST Invoice or Payment Claim, or at such other timing as stated by the Consultant, and shall be furnished by email or post. If the Client fails to make the payment that is due and payable and that default continues for 14 days, the Consultant may provide written notice to the Client specifying the default and requiring payment within 7 days from the date of the notice. Unless payment has been made by the Client in full, the Consultant may suspend performance of the Services any time after expiration of the notice period. The Consultant may lift the suspension after the Client has made the payment at their sole discretion. Regardless of whether or not the Consultant suspends the performance of the Services in accordance with this clause, the Consultant may charge interest on overdue amounts from the date payment falls due to the date of payment at the rate of the Consultant’s overdraft rate plus 2% and in addition the costs of any actions taken by the Consultant to recover the debt.
13) Construction Contracts Act 2002
Where the nature of the "Works" is such that it is covered by the Construction Contracts Act 2002 (CCA) and the Consultant has issued a payment claim in accordance with the CCA, the provisions of the CCA shall apply. In all other cases, if the Client, acting reasonably, disputes an invoice, or part of an invoice, the Client must promptly give the reasons for withholding the disputed amount and pay any undisputed amount in accordance with clause 8.
14) Time Charge Basis
Where the "Works" are carried out on a time charge basis, the Consultant may purchase such incidental goods and/or Services as are reasonably required for the Consultant to perform the Services. The cost of obtaining such incidental goods and/or Services shall be payable by the Client. The Consultant shall maintain records which clearly identify time and expenses incurred.
15) Consultant Liabilities
Where the Consultant breaches this Agreement, the Consultant is liable to the Client for reasonably foreseeable claims, damages, liabilities, losses or expenses caused directly by the breach. The Consultant shall not be liable to the Client under this Agreement for the Client’s indirect, consequential or special loss, or loss of profit, however arising, whether under contract, in tort or otherwise.
16) Maximum Liabilities
The maximum aggregate amount payable, whether in contract, tort or otherwise, in relation to claims, damages, liabilities, losses or expenses, shall be two times the fee (exclusive of GST and disbursements) with a minimum of $500 and a maximum limit of NZ$20,000.
17) Timeframe on Liabilities
Without limiting any defences a Party may have under the Limitation Act 2010, neither Party shall be considered liable for any loss or damage resulting from any occurrence unless a claim is formally made on a Party within 1 year from completion of the "Works".
18) Consultant Insurance
The Consultant shall take out and maintain for the duration of the Services a policy of Professional Indemnity insurance for the amount of liability. The Consultant undertakes to use all reasonable endeavours to maintain a similar policy of insurance for six years after the completion of the Services.
19) Party Liability Extent
If either Party is found liable to the other (whether in contract, tort or otherwise), and the claiming Party and/or a Third Party has contributed to the loss or damage, the liable Party shall only be liable to the proportional extent of its own contribution.
20) Intellectual Property
Intellectual property prepared or created by the Consultant in carrying out the "Works" or otherwise and provided to the Client as a deliverable, (“New Intellectual Property”) shall be owned wholly by the Consultant. Intellectual property owned by a Party prior to the commencement of this Agreement (Pre-existing Intellectual Property) and intellectual property created by a Party independently of this Agreement remains the property of that Party. The Consultant accepts no liability for the use of New Intellectual Property or Pre-existing Intellectual Property other than to the extent reasonably required for the intended purposes.
21) Pause or Cease of Services
The Client may suspend all or part of the "Works" by notice to the Consultant who shall immediately make arrangements to stop the "Works" and minimise further expenditure. The Client and the Consultant may (in the event the other Party is in material default that has not been remedied within 14 days of receiving the other Party’s notice of breach) either suspend or terminate the Agreement by notice to the other Party. If the suspension has not been lifted after 1 calendar month, the Consultant has the right to terminate the Agreement and claim reasonable costs as a result of the suspension. Suspension or termination shall not prejudice or affect the accrued rights or claims and liabilities of the Parties.
22) Disputes Settlement
The Parties shall attempt in good faith to settle any dispute themselves, but failing that, by mediation.
23) Jurisdiction
This Agreement is governed by the New Zealand law, the New Zealand courts have jurisdiction in respect of this Agreement, and all amounts are payable in New Zealand dollars.
24) Money Back Guarantee Part A
"Prior to works being completed"
The Consultant provides a 100% money back guarantee at the Consultants' absolute discretion.
The guarantee shall only be valid where the "Works" have not begun. Where works have begun but not been completed, the Consultant, at its discretion, deduct all reasonable amounts to convert expenses and time. Where the works have been completed, the Client shall receive no money back.
25) Money Back Guarantee Part B
"Failing to gain consent"
The Consultant provides a 100% money back guarantee at the Consultants' absolute discretion.
Where the Client uses the deliverables provided within the "Works" provided by the Consultant to support a Building Consent or Resource Consent application within 12 months of Ordering the "Works" from the Consultant and the local Territorial Authority Expressly denies issuing a consent on the grounds that the requirements of NZS1547:2012 have not been met within the report or any subsequent requests for further information, the Consultant shall refund the Client of the full value of their fees. The Client must, in the Consultants opinion, have tried every method and pathway possible to meet compliance. For clarity, should a Building Consent or Resource Consent be denied based on any other matter, then no refund is to be given, it shall be given only where the "Works" are the sole and express reason the consent is denied.
26) Required Variation to Design
The Consultant shall be entitled to vary any deliverables or "Works" where the consultant deems necessary at their sole discretion at any time. This may be due to, but is not limited to, the following reasons:
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Request by the local or regional territorial authority
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Request by the drainlayer or plumber
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Request by other professional or consultant (eg Geotechnical engineer)
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Material matters being presented or uncovered
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New information presented by the client
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Changes to standards or legislation
Where appropriate, at the sole discretion of the Consultant, the Consultant shall be able to recover the cost of these variations by invoice to the Client. The Client indemnifies the Consultant against any losses the Consultant may incur.
Where extra costs are incurred by the Client due to the changed deliverables or "Works", these shall be covered wholly and completely by the Client with no reparations, payments, fees or otherwise provided by the Consultant to the Client.
27) Changes to Terms and Conditions
The Consultant reserves the right to update or amend these terms and conditions at any time, without prior notice to the Client. Any updates or amendments will be posted on the Consultant's website and will take effect immediately upon posting.
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The Client's continued use of the Consultant's services after the posting of any updates or amendments will constitute the Client's acceptance of such updates or amendments.
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If the Client does not agree to any updates or amendments to the terms and conditions, the Client must immediately cease using the Consultant's services.