Zenith Facilities Services Limited
TERMS OF TRADE
Unless otherwise agreed in writing, any acceptance of a quotation tendered by Zenith Facility Services Limited (Zenith) will form the following Agreement. The acceptor of such quotation as Client of Zenith (Client):
|“Assignment”||means any piece of work or project to be undertaken by the Zenith under the terms of this agreement.|
|“Confidential Information”||means all information about the parties, including: any information which may give a commercially competitive advantage to any other person. It includes among other things: information about staff, their performance and their personal contact information, data or information relating to suppliers, product plans, marketing strategies, finance, performance, operations, customer relationships, customer profiles, sales estimates, business plans; information about the Intellectual Property and all aspects of the technology of a party; information created or arising from this agreement; information owned by a third party and in respect of which aparty has an obligation of non-disclosure. information, comment or implication published on any Internet social medium. It does not include information that is reasonably necessary to disclose to a customer or other person in the usual course of business so far as that information is disclosed in those circumstances.|
|detailed Specification”||means a specification of work to be done under the Assignment.|
|“Fee”||means all money payable by the Client to the Zenith, however described, for work on the Assignment.|
|“Estimate”||Estimate shall be an approximate calculation and judgement of the work/Assignment. Shall describe the scope of the work/Assignment to be provided to the client and in acceptance of the Estimation the client agrees that it is only an approximation of services and fees. Estimates may be accompanied by a method statement and a specification of products these act only as a general description of how the Assignment.|
|“Intellectual Property” or “IP”||means intellectual property of every sort, whether or not registered or registrable in any country, including intellectual property of kinds coming into existence after today; and including, among others, patents, trademarks, unregistered marks, designs, copyrights, software, domain names, discoveries, creations and inventions, moral rights, together with all rights which are derived from those rights.|
|“Quote or Quotation”||Quotations shall describe the scope of the work/Assignment to be provided to the client and in acceptance of the quotation the client agrees to that scope of services. Quotations may be accompanied by a method statement and a specification of products these act only as a general description of how the Assignment.|
In this agreement unless the context otherwise requires:
- a reference to one gender shall include any or all genders and a reference to the singular may be interpreted where appropriate as a reference to the plural and vice versa.
- a reference to a person includes reference to that person’s successors, legal representatives, permitted assigns and any person to whom rights, and obligations are transferred or pass as a result of a merger, division, reconstruction or other re-organisation involving that person.
- the headings to the paragraphs to this agreement are inserted for convenience only and do not affect the interpretation.
- any agreement by any party not to do or omit to do something includes an obligation not to allow some other person to do or omit to do that same thing.
- all money sums mentioned in this agreement are calculated net of GST, which will be charged when payment is due.
- this agreement is made only in the English language. If there is any conflict in meaning between the English language version of this agreement and any version or translation of this agreement in any other language, the English language version shall prevail.
3. 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 Assignment. However, the parties intend, and now agree that all the terms shall apply so far as reasonably possible to any second or further assignment or series of assignments which the parties agree shall be performed under these terms.
- In order to apply these terms to a second or further assignment or a series of assignments, a reference to this agreement shall be made in the document setting out the requirements of the assignment.
4. 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.
5. 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.
6. Payment of Zenith fees and/or invoices
- Upon receiving deposit payment from Client, Zenith shall confirm an approximate commencement date of the Assignment.
- Zenith will send an invoice to the Client for work done during that month, or if required by way of progress payments.
- For work beyond the scope of any accepted quotation or estimate Zenith charges trade and/or consulting fee at the rate of $135 per hour. Where such fees are concerned each invoice submitted to the Client for time charged by the hour shall contain 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 Assignment provided such expenses, even in instances where the expense is beyond the scope of the accepted quotation 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 or is required by Law.
- 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. Any statutory liability will rest with the Client.
- Zenith shall be entitled at any time to 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.
- Due to the nature of Assignments where Zenith would need to supply to the Client high value plant, material, building application/s or building structures Client grants Zenith an equitable interest (to the value of any outstanding value remaining unpaid) allowing Zenith to execute a Caveat on the Title of the property or where suitable lodge security with the Personal Properties Security Register (PPSR), or both.
- During any form of dispute raised by the Client in relation to the Assignment, invoices issued for payment remain payable and due. Failure to make payment will result in interest charged under clause 6.9. Dispute resolution to be undertaken in the manner outlined in clauses 17.1 and 17.2.
- Charges relating to payment in a currency other than New Zealand dollars will be borne by the Client.
7. Representative liaison
- Zenith and the Client will each nominate a representative who will be authorised to make decisions relating to the Assignment and who will be responsible towards decisions made for the Assignment:
- organising meetings at which they will review the progress of the Assignment;
- providing all information and documentation reasonably required by the other of them to enable completion of the Assignment.
- Each month the Zenith will prepare a progress report on the progress of the work on the Assignment 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.
8. Clients’ obligations
- The Client agrees to ratify all acts, matters or things done or to be done by Zenith in connection with and arising out of Zenith’s appointment of the assignment hereunder including, without limiting the generality of the foregoing, any act, matter or thing done or to be done by Zenith in going about the Assignment provided that Zenith has acted in accordance with this Agreement.
- Except in the case of negligence or dishonesty on the part of 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 Zenith on account of going about any trade work, trade project and/or consulting Assignment.
- Zenith shall be entitled to request the Client to deliver up to Zenith, within a reasonable time of any such request, any information which Zenith in its reasonable opinion considers necessary to enable the performance of any trade work, trade project and/or consulting Assignment.
- Zenith shall be entitled to request instructions from the Client on any matter related to, outside or beyond the initial scope of Zenith.
- The Client shall do all acts, matters and things reasonably necessary to enable the Manager to fully and effectively go about with any trade work, trade project and/or consulting Assignment.
- Zenith shall not be liable to the Client for any default in payment of rent or otherwise on the part of any Tenant or for any damage done by, or any unsatisfactory conduct on the part of any Tenant.
- In order for Zenith to fully comply with Health & Safety regulations concerning Commercial Property, Zenith requires that the Client provides a current Hazard Identification Report and an Asbestos Report. If the Property does not have a current Hazard Identification Report, then; under this Agreement, Zenith is authorised to obtain any required report from a professional Health & Safety Practice provider. All Health & Safety Reporting related costs related will be claimed from the Client as over and beyond any accepted quotation or Estimate.
9. Zenith’s obligations
- The Zenith agrees to provide a staff of an appropriate level of skill and experience to work on the Assignment.
- The Zenith agrees that whilst engaged in any Assignment 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.
- The Zenith agrees that whilst engaged in any Assignment on the premises of the Client, it will comply with:
10. Warranties of workmanship
- It is the sole discretion of Zenith to provide warranties for any specific Assignment.
- 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.
- While Zenith will make all possible endeavours to provide the best suggestions and solutions, it is solely the Clients responsibility to seek further advice (in relation to suggestions and solutions provided by Zenith) from its Architect, Engineer and/or Certified Building Practitioner.
- ZENITHS DISCLAIMER FOR LIABILITY CONCERNING ALL ASSIGNEMNTS (NOT LIMITED TO WATER LEAK OR WATER INGRESS WORKS) INCLUDES BUT IS NOT LIMITED TO PARTIES AGREEING THAT UNLESS OTHERWISE PROVIDED IN WRITING, FORMAL SPECIFICATIONS HAVE NOT BEEN PROVIDED TO ZENITH TOWARDS EXECUTION OF ASSIGNMENT BY CLIENTS ARCHITECTURAL, ENGINEERING OR BUILINGD CONSULTANTS. IT IS NOTED THAT ZENITH DOES NOT CONSIDER ITSELF AN EXPERT OR CONSULTANCY COMPANY WHO PROVIDES BUILDING ADVICE WITH REGARDS TO BUILDING ENGINEERING AND/OR WATERPROOFING. ZENITH CAN IN NO WAY BE HELD LIABLE FOR ANY FUTURE CLAIMS AS A RESULT OF WORK UNDERTAKEN.
- Tenant / Occupant Notification of works to take place is not the responsibility of Zenith.
- Client agrees when accepting quotations to remediate any Water Leak & Waterproofing: ZENITH CANNOT GUARANTEE PROPOSED SCOPE OF WORKS WILL ENSURE THAT WATER LEAKS OR WATER LEAK RELATED ISSUES WILL BE REMEDIED. WATER LEAK REMIDIATION SCOPE OF WORKS ARE ONLY PROVIDED AS A SUGGESTION TO FURTHER INVESTIGATE. WATER LEAKS ARE DIFFICULT AND COMPLEX LOCATE. OFTEN FINAL REMEDY CAN ONLY BE ACHIVED BY WAY OF AN ELIMINATION PROCESS. THIS CAN SOMETIMES INVOLVE MULTIPLE SITE VISITS AND COURSES OF ACTION.
- Repairs or works that Zenith may undertake are not a guaranteed solution to water ingress. By way of carrying out any water leak related assignment Zenith is only providing suggestions and possible solutions to water ingress, by addressing concerns which seem to be the most obvious at the time.
11. Product warranties and guarantees
- It is the Clients responsibility to check all product warranties and/or guarantees are acceptable to their needs.
- It is the Clients responsibility to pursue all product warranty and/or guarantee claims, directly with the product supplier.
- Zenith has not liability in any way to uphold or pursue any product related claim.
12. Use of sub-contractors
Zenith has the right to to perform any or all of its obligations under this agreement through agents or sub-contractors.
- The parties are aware that in the course of the performance of the Assignment 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 Assignment, 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.
14. Intellectual property
- This agreement shall have no effect on the Clientship 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 Assignment 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 Assignment.
- During and after completion of the Assignment and unless otherwise specified in this agreement, Clientship of Intellectual Property arising out of the Assignment, 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 Assignment, 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.
15. 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 Assignment.
- 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.
16. Duration and termination
- Work on the Assignment shall commence on the date agreed under 6.1 above and termination will be:
- by completion of the Assignment and payment to the Zenith; or
- by one party giving 28 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.
- 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.
- In the event of any dispute arising between the parties to this Agreement and/or in respect of or in connection with this Agreement the parties shall, without prejudice to any other right or entitlement they may have pursuant to this Agreement or otherwise, immediately explore in good faith whether the dispute can be resolved by agreement between them using informal dispute resolution techniques such as negotiation, mediation, independent expert appraisal or any other alternative dispute resolution technique. The rules governing any such technique adopted shall be as agreed between the parties. Both parties agree to use their best endeavors to achieve resolution in this way and further agree that neither party will initiate arbitration without first pursuing such informal dispute resolution techniques.
- In the event this dispute is not resolved by such agreement with 21 days of written notice by one party to the other of the dispute (or such further period agreed in writing between the parties), either party may refer the dispute to arbitration. The arbitrator shall be agreed between the parties within 10 days of written notice of the referral by the referring party to the other or failing agreement appointed by the President of the New Zealand Law Society. In either case the arbitrator shall not be a person who has participated in an informal dispute resolution procedure in respect of the dispute. The arbitrator so appointed shall be obliged to proceed with the maximum expedition to deliver an award within two months of appointment, the parties agreeing to co-operate fully in this respect. The parties hereby agree that the arbitral award shall be final and binding and hereby waive any right to appeal against the award or seek judicial review of it in any Court.
19. 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.
20. 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.
|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.