Terms and Conditions of Engagement
The following conditions are incorporated in all engagements of Property Reserve Planning & Administration Limited (“PRP&AL”).
1. Briefing Requirements
The client or his/her principal shall ensure that his/her instructions and requirements are clearly and unambiguously conveyed to PRP&AL and that all supporting data is complete and accurate. PRP&AL reserves the right to negotiate an adjustment to any quoted or estimated fee if any information provided by the client is found to be inaccurate.
2. Services Provided
PRP&AL is located in New Zealand shall perform its services in accordance with the reasonable standard of skill, care and diligence generally exercised by the relevant profession in New Zealand subject to any financial, physical, time or other constraints imposed by the client or necessarily resulting from the nature of the engagement. PRP&AL may be required to visit the site. Unless otherwise agreed in writing, this/her service shall be limited to periodic site visits to assist in preparing the Reserve Study. Any such observation shall not transfer to PRP&AL any responsibility other than the preparation of the Reserve Study. Reserve Studies will be delivered to the client via email within 7 working days of receipt by PRP&AL of payment of the relevant invoice.
3. Fee Payments and Invoicing
All Fees are (unless specifically otherwise noted) are quoted and invoiced in New Zealand dollars. 50% of the Fees associated with the preparation of the .Reserve Study must be paid prior to the commencement of work on the study by PRP&AL.
.Accounts not paid within 20 days of the date of issue of the account shall be subject to interest at 1.5% per month. Accounts unpaid within 90 days of the date of issue will be regarded as delinquent and the costs of any legal or other debt collecting fee incurred in collecting any delinquent amount will be added to the account.
All disbursements or payments made on behalf of the client at the client’s request and not included in the Fee shall be subject to a service charge of 10%.
5. Personal Property Securities Act
PRP&AL may, at the cost of the client, register a financing statement in respect of any security interest or prior to security interest as defined in the Personal Property Securities Act in respect of the terms on which the goods are supplied and may do all such other things as may be required to ensure that at all times PRP&AL holds a perfected security interest under the Act with the required priorities (or the same priority as previously acquired). For the avoidance of any doubt it is agreed that PRP&AL’s intellectual property in any plans or documents created is a security interest for the purposes of the Personal Property Securities Act.
6. Relationship with Client
The terms of these Conditions of Engagement shall be binding on the party for whose ultimate benefit the services are to be performed, (referred to hereon as the ‘Principal’) whether or not the Principal is the party by whom PRP&AL is engaged. Where PRP&AL is appointed by an adviser to the Principal or by some other representative acting on behalf of the Principal, then:
(a) Where the adviser or other representative is acting or purports to act as agent for the Principal, then the Principal shall be the client and the advisor or other representative acknowledges that he is the duly authorised agent of the client and accepts these conditions on behalf of the client.
(b) where the adviser or other representative does not act as agent for the Principal, then the adviser or other representative undertakes that he will contract with the Principal, for the benefit of the parties referred to in Section 3 of the effect that the terms of Section 3 of these conditions shall apply to any claim by the Principal as if the Principal were the client and the adviser or other representative shall be liable to the parties referred to in Section 3 for any failure to obtain the benefit of such a contract.
Whether or not the adviser or other representative by whom PRP&AL is appointed is acting as agent for the Principal, the party by whom PRP&AL is appointed shall be responsible for payment of all fees and job costs and undertakes to indemnify PRP&AL for any unpaid fees or job costs.
7. Client Acting as Agent
If the client is acting as agent then the client shall be absolutely responsible for passing on to its Principal all advice given and copies of documents provided by PRP&AL to the client.
8. Companies, Trusts & Bodies Corporate
If the client is instructing PRP&AL in the client’s capacity as a director or shareholder of a company or as a settler or trustee of a trust or executor or administrator of an estate or the secretary or officer of a Body Corporate then the instructions are accepted on the basis that the person instructing remains at all times personally liable (along with the company, trust, estate or body corporate) to pay PRP&AL fees and disbursements.
9. Copyright and Use of Documents
Copyright in all Plans and documents will remain the property of PRP&AL. The client shall be licensed on payment of all fees and other job costs due to PRP&AL to use the documents only for the specific purpose for which they were prepared. The client shall not enter into any contract with nor make any representations to a third party or third parties which describe PRP&AL duties and responsibilities in a manner inconsistent with the terms of this/her agreement.
10. Limitation of Liability
PRP&AL shall not be liable for the commercial performance of the project in respect of which the Reserve Study is supplied, or for any loss or damage arising by reason of any delay in completion of the project or for any loss of profits, or for any indirect or consequential loss of whatever the nature.
Subject to the limitations imposed by the Consumers Guarantees Act 1993, our liability shall be limited to direct loss or damage arising from proven negligence in performance of the services for which we are engaged and, if PRP&AL or any subconsultant shall be found liable to the Client (whether under the express or implied terms of his/her agreement and whether in negligence or otherwise in common law) for any costs, loss or damage suffered by the client however caused and of whatever nature, arising out of or connected with the performance or failure of performance of services by PRP&AL or any subconsultants, then the maximum amount of that liability in total for the aggregate of such claims shall be limited to the fee for the services (excluding disbursements). The limitation shall apply to every claim whether it arises from contract or tort including negligence or otherwise. The liability of PRP&AL or a subconsultant to the client against loss or damage as aforesaid shall be reduced proportionately to the extent that any acts or omissions of the client contributed towards any such loss or damage.
For the purpose of these conditions:
(a) The expression ‘PRP&AL’ shall include all employees of PRP&AL.
(b) The expression ‘Subconsultant’ shall include all parties engaged by PRP&AL or by any other subconsultant to perform any part of the services provided by this/her engagement and all employees of the subconsultant.
These terms shall be construed as conferring a benefit on, and being enforceable at the suit of, every such party, whether part of this/her contract or not. PRP&AL disclaims responsibility for the services provided where variations are made to our study or recommendations without our authorisation, or for loss resulting from misinformation or misdirection by the client or his/her or other consultants or from statutory or other authorities
11. Postponement of Services and Termination of Engagement
Any agreement between PRP&AL and the client may be postponed or terminated by either party, on the expiration of reasonable notice given in writing. Upon receipt of such notice from the client, PRP&AL shall take immediate steps to bring the services to a close and to reduce expenditure to a minimum. Upon postponement of the services or termination of the engagement, PRP&AL shall be entitled to payment of fees and other job costs up to the effective date of postponement or termination and such further fees and costs incidental to the orderly termination of the services.
12. Settlement of Disputes
In the event of any dispute arising between PRP&AL and the client, including the interpretation of this/her contract, the matter in dispute may be referred to the final decision of a sole arbitrator to be appointed by the parties. If the parties fail to agree, within one month of one party giving notice in writing to the other party of a dispute to be referred to arbitration, then either party may request the President of the Auckland District Law Society to appoint an arbitrator and the arbitrator shall be so appointed.
13. Cancelation Return & Refund Policy
The client may cancel the services of PRP&AL pursuant to clause 11 of these Terms of Engagement but in the absence of manifest breach of these Terms of Engagement by PRP&AL the client shall not be entitled to any return and refund in respect of any Reserve Report as the fee paid is based on the provision of a service which has been expended and not the provision of returnable goods.