These Terms of Engagement (“Terms”) constitute an agreement between you (“Client”) and The IT Psychiatrist Limited (company number 6830313) (“Consultant”) relating to the provision of IT consulting and digital strategy development services. By obtaining Services from the Consultant, the Client confirms that they have read, understood and accepted these Terms and agree to be bound by these Terms.
PROVISION OF SERVICES
1. The Consultant will perform the services as described in the accompanying documentation (“Services”).
2. In providing the Services the Consultant will exercise the degree of skill, care and diligence normally expected of a competent professional.
3. Where the Services are acquired for the purpose of a business, the provisions of the Consumer Guarantees Act 1993 will not apply and are excluded from these Terms.
4. The Client will provide to the Consultant, free of cost, and as soon as practicable following any request for information, all information in his or her 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 will ensure compliance with the Copyright Act 1994 and shall identify any proprietary rights that any other person may have in any information provided.
5. The Client may request variations to the Services. The Consultant will provide an updated estimate or quotation for such variation for acceptance or rejection by the Client. All requests and responses under this clause must be in writing.
6. As soon as either party becomes aware of anything that will materially affect the scope or timing of the Services, the party must inform the other party in writing.
TERMS OF PAYMENT
7. The Client will pay the Consultant’s fees for the Services and all expenses at the times and in the manner set out in these Terms and in the accompanying documents. All fees and expenses exclude GST and are quoted in $NZD unless otherwise stated.
8. All quotes and estimates are valid for 20 working days and are exclusive of disbursements, expenses and third-party consultancy fees. The Consultant reserves the right to withdraw any quote or vary any quote at any time before the Client accepts the quote.
9. All other fees and amounts payable by the Client shall be paid on the 20th day of the month following the date of the invoice. Late payment shall constitute a default. The Client will be liable for default interest on overdue amounts from the date payment falls due until the date of payment at the Consultant’s overdraft rate plus 5% and in addition any costs and expenses (including legal and debt collection costs) of any actions taken by the Consultant to recover the debt.
10. The Consultant may purchase such incidental goods and services as are reasonably required for the Consultant to perform the Services. Providing that the Client has approved the purchase in writing in advance 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.
11. The liability of the Consultant, whether in contract, in tort or otherwise, in respect of all claims for loss, damage, expenses or injury arising from breach of any of the Consultant’s obligations arising under or in connection with these Terms, from any cancellation of these Terms or from any negligence, misrepresentation or other act or omission on the part of the Consultant, its servants, agents or contractors shall not in aggregate exceed the fees payable for the Services
12. The Consultant will not be liable for any loss of profits or any consequential, indirect or special loss, damage or injury of any kind arising directly or indirectly from any breach of any of the Consultant’s obligations under or in connection with these Terms or from any cancellation of these Terms or from any negligence, misrepresentation or other act or omission on the part of the Consultant, its servants, agents or contractors.
13. The Consultant not be liable for any loss or damage resulting from any occurrence unless a claim is formally notified within one year of the completion of Services.
14. The liability of the Client, whether in contract, in tort or otherwise, in respect of all claims for loss, damage, expenses or injury arising from breach of any of the Client’s obligations arising under or in connection with these Terms, from any cancellation of these Terms or from any negligence, misrepresentation or other act or omission on the part of the Consultant, its servants, agents or contractors shall not in aggregate exceed the fees payable for the Services
15. The Client will not be liable for any loss of profits or any consequential, indirect or special loss, damage or injury of any kind arising directly or indirectly from any breach of any of the Client’s obligations under or in connection with these Terms or from any cancellation of these Terms or from any negligence, misrepresentation or other act or omission on the part of the Client its servants, agents or contractors.
16. The Client will not be liable for any loss or damage resulting from any occurrence unless a claim is formally notified within one year of the completion of Services.
17. 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.
18. Excluding the architecture Vision described in Phase 1 of the Services, the Consultant shall retain intellectual property including copyright in all documents prepared by the Consultant. The Client shall be entitled to use them or copy them only for the works and the purpose for which they are intended. The ownership of the Architecture Vision, data and factual information collected by the Consultant and paid for by the Client shall, after payment by the Client, lie with the Client. The Client may reproduce documents in which the Consultant has copyright, as reasonably required in connection with the Services but not otherwise. The Client shall have no right to use any of these documents where any fees or expenses remain payable to the Consultant.
HEALTH AND SAFETY
19. The Client will comply with its obligations under the Health and Safety at Work Act 2015. The Client will advise the Consultant of any hazards and risks which may be encountered by the Consultant or its employees when undertaking the Services. If the Consultant or its employees are likely to enter onto the Client’s property or premises in performance of the Services the Client agrees to notify all Health and Safety policies and procedures of the Client or other parties also working on the property or premises.
TERMINATION OR SUSPENSION OF SERVICES
20. The Client may suspend all or part of the Services by giving 10 working days written notice to the Consultant who on receipt of such notice shall immediately make arrangements to stop the Services and minimise further expenditure.
21. The Consultant may terminate the Services by giving 10 working days written notice to the Client. Termination shall not prejudice or affect the accrued rights or claims of the Consultant.
22. Upon termination of the Services by the Client, for any reason, the Client must pay the Consultant all fees, amounts payable and expenses incurred as at the date of cancellation in accordance with clause 9. The Consultant may also, at its sole discretion, request that the Client pay the Consultant for any reasonable expenditure as may be required to suspend all or part of the Services.
23. If any dispute arises in connection with the Service or these Terms, directors or other senior representatives of the parties with authority to settle the dispute will, within 5 working days of a written request from one party to the other, meet in a good faith effort to resolve the dispute. If the dispute is not resolved at that meeting, the parties will attempt to settle it by mediation. To initiate the mediation a party must give notice in writing (“ADR notice“) to the other party to the dispute requesting a mediation. The mediation will start not later than 20 working days after the date of the ADR notice. No party may commence any court proceedings in relation to any dispute arising out of these Terms until it has attempted to settle the dispute by mediation and either the mediation has terminated, or the other party has failed to participate in the mediation.
24 No failure or delay by the Consultant to exercise any right or remedy provided under these Terms or by law shall constitute a waiver of that or any other right or remedy.
25. If any provision of these Terms is, or becomes, unenforceable, illegal or invalid for any reason, then the remaining terms under these Terms will not be affected and will continue in full force and effect.
26. These Terms are governed by New Zealand law, the New Zealand courts have jurisdiction in respect of these Terms and the Services performed under them.
27. Any notice in writing must be addressed to the other party and delivered by hand or by email.
28. Neither party may assign its rights and obligations under these Terms without the other party’s written consent.
29. These terms may be amended only by the written agreement of both parties.