TERMS OF TRADE
Unless otherwise agreed, any acceptance of a quotation and/or estimation tendered by Zenith Facility Services Limited (Zenith) will form the following Agreement. The acceptor of such quotation and/or estimation will become the Client of Zenith (Client):
Entire agreement
This agreement contains the entire agreement between the parties and supersedes all previous agreements and understandings between the parties.
Each party acknowledges that, in entering into this agreement, it does not rely on any representation, warranty, information, document or other terms not forming part of this agreement.
Conditions, warranties or other terms implied by statute or common law in any country are excluded from this agreement to the fullest extent permitted by law.
This agreement has been drawn with reference to a single Project. However, the parties intend, and now agree that all the terms shall apply so far as reasonably possible to any second or further project or series of projects which the parties agree shall be performed under these terms.
In order to apply these terms to a second or further project or a series of projects, a reference to this agreement shall be made in the document setting out the requirements of the project.
Warranties for authority
Each party warrants that it has power to enter into this agreement and has obtained all necessary approvals to do so.
The Zenith warrants and undertakes that it is not aware of anything within its reasonable control, which might or will adversely affect its ability to fulfil its obligations under this agreement.
The Client warrants that it is not insolvent and knows of no circumstance which would entitle any creditor to appoint a receiver or to petition for winding up or to exercise any other rights over or against its assets.
Zenith’s status
The Zenith is not a partner, agent or employee of the Client and does not have authority to enter into any commitment on behalf of the Client.
Payment of Zenith’s Fees and/or Invoices
Upon receiving deposit payment from Client, Zenith shall confirm date of commencement of the Project.
Zenith will send an invoice to the Client for work done during that month, or if required by way of progress payments.
For any works that are beyond the scope of any accepted quotation or estimate, fees are charged as per the schedule of fees.
Those projects that are of several phases and non-going in nature and where the client choices no longer to progress with the project during mid-project, fees are charged as per the schedule of fees.
Where a project is charged based on fees, Zenith will provide the Client a breakdown in respect of the time spent by each person.
Zenith invoices shall include whatever reasonable expenses the Zenith has incurred in working on any Project, even in instances where the expense is beyond the scope of the accepted quotation and/or estimate. However, Zenith will pursue all reasonable endeavours have such extra expenses to be approved in advance by the Client, subject to any situation of emergency.
The Zenith may charge for any reasonable costs incurred as a result of any delay caused by the Client or any circumstance controlled by the Client.
Payment of the sum specified in the invoice will be made by the Client immediate of date of sending the invoice. Failure to make timely payment shall entitle the Zenith to stop all work for the Client, including work regulated by any other agreement or statute. In such event any statutory liability will rest with the Client.
Zenith shall be entitled at any time review or increase the rates for work charged by the hour.
Zenith reserves the right to charge the Client interest in respect of the late payment of any money due under this agreement (both before and after judgment) at the rate of five percent above the commercial overdraft rate of interest stipulated by the Bank of which Zenith is a Client, from the due date until receipt of full payment.
Banking charges by the receiving bank on payments to the Zenith will be borne by the Zenith. All other charges relating to payment in a currency other than New Zealand dollars will be borne by the Client.
Representative liaison
Zenith and the Client will each nominate a representative who will be authorised to make decisions relating to the Project and who will be responsible towards decisions made for the Project:
organising meetings at which they will review the progress of the Project;
providing all information and documentation reasonably required by the other of them to enable completion of the Project.
Each month the Zenith will prepare a progress report on the progress of the work on the Project and will deliver it to the Client’s representative at least [three] days before each meeting.
If needed Zenith will provide a document setting out detailed practical requirements as required from time to time. The Client agrees to do its utmost to comply with the requirements of that document.
Zenith’s obligations
The Zenith agrees to provide a staff of an appropriate level of skill and experience to work on the Project.
The Zenith agrees that whilst engaged in any Project on the premises of the Client, it will comply with:
all laws and regulations relating to the employment of staff and health and safety at work;
the specific regulations of the Client as applicable to its employees.
Health and safety
Client must provide the following documents, Council Property File, Asbestos Survey (no older than 3 months), Hazard Identification List (no older than 3 months). It is the Clients responsibility as person conducting business under the Health and Safety at Work 2015 Act to make Zenith and its contractors aware of any Hazards. In the event documentation required is not available prior to commencing the work, Zenith will organise required documentation at the cost of the client as extra to the works estimated or quote.
Variations
The Client may instruct Zenith to estimate the price and cost of any variation to the initial scope of the project.
Clients’ instruction will state the time within which Zenith is to give the Client such estimate.
Zenith is entitled to make any claim in relation to costs in compiling estimates it is required to estimate under the Clients instruction.
Warranties of Workmanship
It is the sole discretion of Zenith to provide warranties for any specific Project.
If Zenith provides a specific warranty, it will do so in writing at the completion of the project.
Zenith reserves the right to include any condition and or conditions to any warranty and will do so in writing at the time of the warranty is initiated.
Zenith reserves the right to invalidate and/or decline any warranty if it believes that the actions of the Client or the Clients agents have affected the quality of the service provided.
Use of sub-contractors
Zenith has the right to perform any or all of its obligations under this agreement through agents or sub-contractors.
Engagement of Consultants
If and when required Zenith shall engage specialist consultants to complete any documentation necessary to enable the Contractor to complete the Contract
Works.
Zenith engaged specialist consultants and Zenith Facilities Services Limited (documenting entities) reserves all copyright of advice and documentation provided to the Client. Prior Written consent must be obtained before the use of the information contained in such documentation.
The scope of this documentation may be limited to the estimates commissioned by client.
Documenting entities shall not be liable for any inaccuracies or omissions in the report resulting from incomplete or inaccurate information provided by the client.
Limited access to certain areas of the building or testing and inspection restrictions imposed by occupants or client may hinder ability to conduct a thorough documentation.
Budget constraints or client preferences may limit the scope of the inspection, or the extent of repairs and maintenance recommended.
Documentation based on visual and moderately invasive inspections and may not uncover hidden defects or issues within the building.
External factors such as weather conditions, seasonal variations, or environmental hazards may impact the accuracy of the documentation.
Building condition documentation may not cover all legal or regulatory requirements, and additional assessments may be necessary to ensure compliance with local building codes, zoning regulations, or environmental laws.
While a building condition documentation may identify existing issues and provide recommendations for remedial maintenance or repairs, it does not guarantee the future performance or condition of the building.
Any remedial action specified and recommended is only recommended in the view that Zenith engaged specialist consultants would be project manager for those remedial actions specified and recommended to be carried out by Zenith Facilities Services, under its workmanship guarantee. Zenith or Zenith engaged specialist consultants will not assume responsibility for any defect in workmanship tendered by any third-party remedial service provider.
Confidentiality
The parties are aware that in the course of the performance of the Project they will each have access to and be entrusted with Confidential Information of the other. Accordingly, they undertake in respect of Confidential Information of the other of them, that both during and after completion of the Project, they will:
except as provided in this agreement, not divulge to any person whatever, or otherwise make use of (and will use its best endeavours to prevent the publication or disclosure of) any trade secret or Confidential Information;
not use the Confidential Information in any way for itself or any other person, except in a way that is authorised by this agreement or by the proper authority of the other of them;
not store, copy, or use the Confidential Information in any place or in any electronic form which may be accessible to any other person except where it is a legal obligation.
keep all records of the Confidential Information in all media separate from other records;
keep all records only at the address as specified above (and in particular not to take records in electronic form to any other place);
make all relevant employees, agents and sub-contractors aware of the confidentiality of Confidential Information and the provisions of this paragraph and take all such steps as from time to time may be necessary to ensure compliance by those people with these provisions.
Zenith agrees that before it permits any employee or contractor or other person to have access to any Confidential Information, it will enter into an agreement / contract of employment, binding any such person to the matters of confidentiality provided for in this paragraph.
Intellectual Property
This agreement shall have no effect on the ownership of Intellectual Property existing at the date of this agreement.
Zenith may use whatever Intellectual Property of the Client that the Client sees fit to provide.
Zenith shall use and contribute to the Project such Intellectual Property as is appropriate and reasonable in the context that the selection and appointment of the Zenith by the Client was influenced by representations and reputation of the Zenith in fields of knowledge associated with the Project.
During and after completion of the Project and unless otherwise specified in this agreement, ownership of Intellectual Property arising out of the Project, shall be as follows:
IP concepts created by the Zenith incorporated in/on any property, service or system, belong to the Zenith. This applies even when the Client has paid Zenith for production of such IP.
IP work incorporated in/on any property, service or system of the Client, belong to the Client.
IP elements previously developed by the Zenith belong to it even if incorporated in/on any property, service or system of the Client.
In the event that the Zenith creates, acquires or develops any new Intellectual Property (including moral rights) relating to the Project, it does not grant to the Client any form of exclusive licence to that Intellectual Property.
If either party believes that any third party is infringing any Intellectual Property rights it shall notify the other party of such belief. If either party wishes to take action against any third party for infringement of any of that party’s Intellectual Property rights it shall give notice of such proposed action to the other party.
Limitation of liability
All implied conditions, warranties and terms are excluded from this agreement. If in any jurisdiction an implied condition, warrant or term cannot be excluded, then this sub paragraph will be deemed to be reduced in effect, only to the extent necessary to release that specific condition, warranty or term under the laws of New Zealand.
Zenith shall not be liable to the Client for loss arising from or in connection with any representations, agreements, statements or undertakings made during the course of Project.
Zenith gives no warranty that any particular result or outcome is achievable or attainable by a given date or at all.
Zenith shall not be liable to the Client for any loss or expense which is:
indirect or consequential loss; or
economic loss or other loss of turnover, profits, business or goodwill; or
loss or damage suffered by the Client as a result of an action brought by a third party.
The above provisions apply even if such loss was reasonably foreseeable or Zenith had been advised of the possibility of the Client incurring it.
Total liability of Zenith under this agreement, however it arises, shall not exceed the sum covered under its Public and Statutory liability insurance. This applies whether case is based on contract, tort or any other basis in law.
This paragraph and any other paragraph which excludes or restricts the liability of the Zenith applies to the Zenith’s directors, officers, employees, subcontractors, agents and affiliated companies who may enforce this clause under the Contract and Commercial Law Act 2017 as well as to Zenith itself.
Insurance
Zenith holds public liability, statutory and professional indemnity insurance. It is the responsibility of the Client to hold any other insurances required including construction, and product liability insurances.
Duration and termination
Work on the Project shall commence on the date agreed and termination will be:
by completion of the Project and full payment for services being received to the Zenith; or
by one party giving no less than 10 working days’ notice of termination to the other; or
immediately by Zenith if the Client fails to pay any sum due of the date of submission of an invoice having been notified of non-payment by the Zenith; or
immediately by either party if the other commits any material breach of any term of this agreement and which in the case of a breach capable of being remedied is not remedied within 30 days of a written request to remedy it; or
immediately if either party is declared bankrupt or insolvent; or has taken or suffered any action for its organisation, liquidation, winding up or dissolution; or had a receiver or liquidator appointed for all or any part of its assets or business.
Notwithstanding termination of this agreement for whatever reason, all the provisions that are intended to operate or have effect after termination or expiration shall continue in full force and effect.
Without regard to the reason why this agreement ends, the Client will pay the Zenith for all work done to the time the notice of termination is received by the Zenith, calculated to the nearest hour in accordance with THE SCHEDULE OF FEES.
Indemnity
Except in the case of negligence or dishonesty on the part of the Zenith, its servants or Managers, the Client agrees to indemnify and save harmless Zenith from any and all liability and for all claims and demands arising out of damage or injuries to persons or property, and Zenith will defend at the expense of the Client all suits which may be rendered against the Zenith on account thereof.
Uncontrollable events
Neither party shall be liable for any failure or delay in performance of this agreement which is caused by circumstances beyond its reasonable control, including any labour dispute between a party and its employees.
A termination notice is irrevocable unless both parties agree to re-instate this agreement.
If the agreement is terminated, all money due from one party to the other becomes due immediately.
Costs arising from the delay or stoppage will be borne by the party incurring those costs.
The party claiming the uncontrollable event will take all necessary steps to perform this agreement despite the uncontrollable event.
Miscellaneous matters
Zenith undertakes to provide to the Client its current land address, e-mail address and telephone numbers as often as they are changed.
No amendment or variation to this agreement is valid unless in writing, signed by each of the parties or its authorised representative.
The parties acknowledge and agree that this agreement has been jointly drawn by them and accordingly it should not be construed strictly against either party.
So far as any time, date or period is mentioned in this agreement, time shall be of the essence.
If any term or provision of this agreement is at any time held by any jurisdiction to be void, invalid or unenforceable, then it shall be treated as changed or reduced, only to the extent minimally necessary to bring it within the laws of that jurisdiction and to prevent it from being void and it shall be binding in that changed or reduced form. Subject to that, each provision shall be interpreted as severable and shall not in any way affect any other of these terms.
The rights and obligations of the parties set out in this agreement shall pass to any permitted successor in title.
Any obligation in this agreement intended to continue to have effect after termination or completion shall so continue.
No failure or delay by any party to exercise any right, power or remedy will operate as a waiver of it nor indicate any intention to reduce that or any other right in the future.
The parties agree that electronic communications satisfy any legal requirement that such communications be in writing.
Any communication to be served on either of the parties by the other shall be delivered by hand or sent by express post or recorded delivery.
Zenith shall during the course of any given project erect signage for safety and advertising purposes.
| It shall be deemed to have been delivered: |
| if delivered by hand: on the day of delivery; |
| if sent by post to the correct address: within 72 hours of posting; |
In the event of a dispute between the parties to this agreement, then they undertake to attempt to settle the dispute by engaging in good faith with the other in a process of mediation before commencing arbitration or litigation.
This agreement does not give any right to any third party under the Contract and Commercial Law Act 2017 or otherwise, except that any provision in this agreement which excludes or restricts the liability of the directors, officers, employees, subcontractors, agents and affiliated companies of a party, may be enforced under that Act.
In the event of any conflict between any term of this agreement and the provisions of the constitution of a limited company or any comparable document intended to regulate any other corporate or collective body, then the terms of this agreement shall prevail.
Each party shall bear its own legal and other costs and expenses arising in connection with entering into this agreement.
This agreement may be executed in multiple counterparts each of which shall be considered an original and all or anyone of which constitute one and the same instrument.
The validity, construction and performance of this agreement shall be governed by the laws of New Zealand, and the parties agree that any dispute arising from it shall be litigated only in that country.
Client agrees that Zenith will from time to time when relevant reserve the right to without notice to the client update or revise any part of this Agreement.
Client agrees that this is a legal document and should seek independent legal advice.
SCHEDULE OF FEES
General Consulting
Various commercial requirements including building, regulatory, and general commercial matters.
$250 – $450
Management accounting & budgetary.
$120 – $450
Concept Design (Licenced Building Practitioner – Design stage 3)
Concept Design – Provide concept design services, which includes developing ideas and creating designs that meet the requirements of the project.
$155
Architectural Drafting (Licenced Building Practitioner – Design 3)
Create detailed drawings and diagrams of architectural projects and buildings, using CAD software.
$150 – $175
Construction Documentation (Licenced Building Practitioner – Design 3)
Prepare construction documents that are needed for the building process, including blueprints, architectural drawings, and other documents.
$180
Engineering
Act as a liaison between clients, contractors, and other parties involved in the construction process to ensure that all aspects of the project are coordinated and completed on time and within budget.
$250 – $450
Quantity Surveying
Establishing building material requirements, and estimation of repair / build costs.
$145
Supplier Contract Management (Example: Materials, Access Systems, Asbestos Management)
Act as a liaison between clients, contractors, and other parties involved in the construction process to ensure that all aspects of the project are coordinated and completed on time and within budget.
$210
Consenting & Planning Requirements (Direct liaison with Auckland City Council)
Act as a liaison between client and Auckland City Council ensuring that all aspects of the project are efficient and effectively coordinated in order to obtain regulatory approval where required.
$250
Site Work:
LBP
$105
Hammer-hand
$65
Water proofer
$120
Plumber