1. CONTRACT 

1.1 This Terms of Services Agreement (Agreement) consists of the Front Page, these Terms and Conditions and any Annexures. 

1.2 This Agreement records the entire agreement between the parties as to its subject matter and supersedes all prior contracts, obligations, representations, conduct and understandings. 

1.3 By signing the Front Page or by instructing CCL to supply Services, the Client is bound by this Agreement. 

1.4 Any Special Conditions apply in addition to these Terms and Conditions and prevail if there is any inconsistency. 

1.5 If there is any inconsistency between this Agreement and any other written material relating to the subject matter of this Agreement (except for an existing signed contract between the parties specifically relating to the Services), this Agreement prevails. 

2. DEFINITIONS 

2.1 Definitions 

In this Agreement, unless the context otherwise requires: 

Annexure means an annexure that is expressly referred to within the Front Page; 

Agreement Details means the agreement details specified on the Front Page; 

Agreement Expiry Date means the date specified on the Front Page of this Agreement to be the expiry date; 

Business Day means a day on which businesses and banks in New Plymouth generally are open for business, but does not include Saturdays, Sundays, or any public holiday; 

CCL means Clutch Consulting Limited, a duly incorporated company registered in the New Zealand Companies Register under number 9224740, and includes its respective successors and permitted assigns, and unless the context otherwise requires includes the employees, contractors, subcontractors, consultants, agents and invitees of Clutch Consulting Limited; 

Confidential Information includes all information, specifications, know-how, software, confidential material and/or other information from time to time disclosed by a party to the other in relation to this Agreement, either orally or in writing; 

Client has the meaning ascribed to it in the Contract Details and includes its respective successors and assigns, and unless the context otherwise requires includes the employees, contractors, subcontractors, consultants, agents and invitees of Client;

Default Interest means 14% per month. 

Fees means all fees, costs, expenses, charges howsoever arising payable for the Services as set out in the Agreement Details; 

Front Page means the front page Agreement Details section of this document; 

GST means goods and services tax imposed under the GST Act at the rate prevailing from time to time; 

GST Act means the Goods and Services Tax Act 1985; 

Intellectual Property means a patent, registered design, copyright, trademark, trade name, trade secret, moral rights and other rights, know-how, presentation and associated presentation materials, and any other intellectual property right whether registered or unregistered; 

Liability means any claim, liability, costs, expenses, losses, demand, action or proceeding incurred by or brought against an indemnified party under this Agreement; 

Services means, in respect of this Agreement, the services provided by CCL under this Agreement; 

Service Period means the period commencing on the Commencement Date and ending on the Expiry Date; 

Site means Client’s place of business or any other place necessary for CCL to facilitate the Services; 

Special Conditions means any conditions specified to be Special Conditions in respect of this Agreement; 

Tax Invoice means an invoice that complies with the GST Act; 

Term has the meaning ascribed to it in clause 2.3. 

Third Party means a person who is not a party to this Agreement; 

Variation means a Variation to the Services pursuant to clause 15 and any other matter which is stated to be a Variation or to be treated as a Variation by the Agreement. 

2.2 Interpretation 

In the interpretation of this Agreement, unless the context requires otherwise: 

2.2.1 Headings: headings appear as a matter of convenience and do not affect the construction of this Agreement; 

2.2.2 Includes: a reference to “includes” is a reference to “including without limitation”, and “include” and “including” are construed accordingly; 

2.2.3 Person: body corporate, an association of persons (whether corporate or not), a trust, a state and an agency of state, in each case, whether or not having a separate legal personality and a reference to a person includes a reference to the person’s executors, administrators, successors and permitted assigns (including but not limited to, persons taking by novation); 

2.3 Term 

All the provisions in this Agreement come into effect on the Commencement Date, and remains in effect until: 

2.3.1 This Agreement, other than those clauses expressed to survive termination or expiry, ends on the earlier of: 

(a) the Expiry Date; or 
(b) termination. 

3. NO LEGAL OR FINANCIAL ADVICE 

3.1 The Client acknowledges and agrees that the Services provided by CCL are not intended to and do not constitute legal or financial advice of any kind. 

3.2 CCL shall not be liable to the Client if the Client relies on any advice provided by CCL as legal or financial advice. 

3.3 Should the Client require such advice, the Client is to consult with their own legal or financial advisors. 

4. FEES 

4.1 The Fees for Services will be set out in the Agreement Details, and may be varied from time to time in accordance with clauses 5 and/or 15. All Fees and other amounts arising under this Agreement are stated before the calculation of GST. 

5. VARIATION OF FEES 

In the event that there is a change to the scope of the Services, and such changes increases CCL’s costs in providing the Services, then CCL shall be entitled to review the Fees until further work is undertaken by CCL. 

6. INVOICE AND PAYMENT 

6.1 CCL will issue a Tax Invoice to the Client for the Services as and when is appropriate including monthly or on completion of the Services and any amounts under clauses 4 or 5 for the period to which the invoice relates. The Client will make payment to CCL of the full amount of the Tax Invoice, including GST and any other taxes, without set-off by the 20th day of the month following the date of the invoice (Due Date). 

6.2 Unless otherwise specified, all Fees and prices specified in this Agreement do not include GST. 

6.3 Failure to make payment 

Without prejudice to CCL’s other rights or remedies (including the right to terminate this Agreement), CCL may: 

6.3.1 charge interest on Tax Invoices that remain unpaid and undisputed at the Due Date at Default Interest Rate, which shall accrue and compound on a daily basis on the total amount outstanding from the Due Date to the date payment is made in full. 

6.3.2 The Client will pay all costs incurred by CCL in relation to the recovery or attempted recovery of any monies owing to CCL under any undisputed Tax Invoice (including debt collection fees and solicitor’s costs); and/or 

6.3.3 in its sole discretion and by written notice to the Client, suspend performance of any ongoing Services (in respect of which a Tax Invoice has been issued for Services already delivered and that invoice remains unpaid and undisputed, at the Due Date), whether indefinitely or until all unpaid and undisputed amounts are paid to CCL in full, and the Client shall have no claim whatsoever against CCL for any suspension. 

6.4 Client in default 

CCL will have no obligation to provide Services to the Client if and for so long as the Client is in material default of any obligation under this Agreement, including payment of any amount plus interest owing under any Tax Invoice. 

6.5 Dispute of invoice 

If the Client disputes any amount set out in a Tax Invoice, the Client will advise CCL by written notice of the amount in dispute and the reason for the dispute on or before the Due Date. If the Dispute is not resolved within 5 Business Days of delivery of such written notice, the matter shall be dealt with in accordance with the Disputes process set out in clause 12 of this Agreement (in which case the written notice of dispute shall be issued in accordance with clause 13). Any undisputed portions of the Tax Invoice shall be paid by the Client in accordance with this Agreement. 

7. WARRANTIES 

7.1 CCL and the Client warrant that they each have the full power and authority to enter into, and perform their obligations, under these Terms. 

7.2 To the maximum extent permitted by law, CCL’s warranties are limited to those set out in these Terms. All other guarantees or warranties whether expressed or implied by statute or otherwise (including any warranty under the Contract and Commercial Law Act 2017) are expressly excluded, except any which may not lawfully be excluded (including any rights under the Consumer 

Guarantees Act 1993 if the Services are not provided for the purposes of trade or a business). 

7.3 To the fullest extent permitted by law, where the Services are provided to the Client for the purposes of trade or a business, the Client agrees: 

7.4 not to make, and waives any right to make, any claim against CCL under section 9, 12A and 13 of the Fair Trading Act 1986 and the Client agrees that this is fair and reasonable; and 

7.5 that the provisions of the Consumer Guarantees Act 1993 do not apply to the provision of the Services. 

8. ACCESS 

8.1 Access to Site 

The Client will provide CCL with access to the Site(s) (whether owned by the Client or a Third Party) and provide all facilities, information, approvals and assistance reasonably required to enable CCL to provide the Services. 

9. LIMITATION OF LIABILITY 

9.1 To the maximum extent permitted by law, in no event shall CCL be liable to the Client or any third party under, or in connection with these Terms or the Services (whether in contract, tort or otherwise) for any consequential loss or damage, indirect loss or damage, or any economic loss, including any loss of data or profits. 

9.2 The Client acknowledges that CCL is not liable for any error, non-performance or breach of any of CCL’s obligations to the Client or any third party under these Terms due to a direct or indirect cause outside of CCL’s control, or to the extent that the failure is caused by the Client or those for whom the Client is responsible failing to comply with the Client’s obligations under these Terms, or by the negligence or misconduct of the Client or those for whom the Client is responsible. 

9.3 To the extent that CCL’s Liability is not otherwise limited or excluded, and to the fullest extent permitted by law, CCL’s aggregate Liability to the Client whether in tort, contract or otherwise for any loss, damage or injury under or in connection with these Terms or the Services shall be limited to the Price paid by the Client for the Services. 

10. INTELLECTUAL PROPERTY 

10.1 All Intellectual Property rights subsisting in the Services remain the property of CCL. 

10.2 The Client warrants that all information, or instructions provided to CCL will not infringe any Intellectual Property Rights of Third Parties. 

10.3 The Client indemnifies CCL against any action, suit, claim, or proceeding which is based on a claim, whether rightful or otherwise, that any information, or instructions provided to CCL by the Client in relation to the Services, constitute an infringement of Intellectual Property Rights of any third party. 

11. TERMINATION 

11.1 Either party may terminate this Agreement by giving written notice to the other party as set out in the Agreement Details. If no details are entered in the Agreement Details then neither party may terminate under this clause 11.1. 

11.2 Either party may by written notice immediately terminate this Agreement if the other party: 

11.2.1 breaches these Terms and the breach is not: 

(a) remedied within ten (10) Business Days of the receipt of a notice from the other party requiring the breach be remedied; or 
(b) capable of being remedied. 

11.2.2 becomes bankrupt, goes or is put into liquidation, has a receiver or statutory manager appointed over its assets or any of them, becomes insolvent, ceases to carry on its business, makes any composition or arrangement with its creditors, 

11.3 On termination of this Agreement, the Client must immediately pay to CCL: 

(a) all Fees and other amounts owing by the Client for Services rendered up to the date of termination; and 
(b) any reasonable costs incurred by CCL in the event of a breach of these terms by the Client or early termination by the Client. 

11.4 The termination of this Agreement does not affect those rights of each party which: 

(a) accrued prior to the time of termination; or 
(b) relate to any breach or failure to perform an obligation under these Terms that arose prior to the time of termination. 

12. DISPUTE RESOLUTION 

12.1 If a party considers that there is a dispute in respect of any matters arising out of, or in connection with this Agreement, then that party shall immediately give written notice to the other party setting out the details of the dispute. 

12.2 The parties shall, in good faith, attempt to resolve the dispute between themselves within five (5) Business Days of receipt of written notice of the dispute. 

12.3 If unresolved within five (5) Business days of receipt of notice, the parties shall appoint a mediator to resolve the dispute. The costs associated with the mediator shall be equally borne by the parties. 

12.4 If the dispute is unresolved for at least three (3) months since receipt of notice of the dispute, either party may commence legal proceedings against the other party provided that the parties have adhered to the procedure in this clause 12. 

12.5 This clause does not limit to either party’s ability to seek urgent injunctive relief. 

13. NOTICES 

13.1 Each notice or other communication under this Agreement is to be made in writing and sent by personal delivery or by post or electronically to the addressee at the physical address or electronic mail address, and marked for the attention of the person or office holder (if any), from time to time designated for the purpose by the addressee to the other party. The initial physical address, electronic mail address of each party will be as set out on the Front Page or as otherwise notified by the parties. 

13.2 No notice or communication will be effective until received. A notice or communication is, however, deemed to be received: 

13.2.1 in the case of a letter, on the second Business Day after posting; and 

13.2.2 in the case of an electronic communication, at the time the electronic communication enters the information system of the recipient party. 

14. FORCE MAJEURE 

14.1 Force majeure event 

Non-performance by either party of any of its obligations under this Agreement will be excused, without Liability for non-performance, where that non-performance is a direct or indirect result of any force majeure event. For the purposes of this clause, a force majeure event is any event beyond the reasonable control of the relevant party, including any act of God, government, war, terrorism, civil disturbance, labour disruption, fire, earthquake or flood, but excludes lack of funds for any reason. 

14.2 Costs 

Each party shall be liable for and bear all of its own cost, expenses, losses and damages suffered and/or incurred as a result of non-performance of any of its obligations under this agreement as a result of a force majeure event (as defined in clause 14.1). 

15. VARIATIONS TO SERVICES 

15.1 Any Variation to the scope of Services as set out in the Agreement Details must be agreed to by CCL in writing. Any agreed Variation will form part of this Agreement and the Client will be charged for the Variation in accordance with clauses 3 and 4. 

15.2 If any Services are provided outside the scope of the Agreement Details for any reason, the Client will still be liable to pay for these in accordance with clauses 3 and 4. 

15.3 The Client acknowledges that: 

15.3.1 provision of the Services may be delayed by events beyond CCL’s control including but not limited to the Client’s delay in providing any required confirmations and / or information; and 

15.3.2 any date given by CCL to the Client is an estimate only and CCL will not be liable for any loss suffered by Client or a third party if the Services are not provided on that date. 

15.4 CCL will notify the Client of any delay or need to reschedule to the provision of the Services and in such circumstances the provision of the shall be reasonably adjusted taking into account the reasons for such delay. 

15.5 If a delay or rescheduling is attributable to any act or omission of the Client then the Client shall indemnify CCL for any costs, losses or expenses incurred by CCL as a result of the delay or rescheduling. 

15.6 CCL will not be liable for any loss or damage incurred by the Client as a result a delay or rescheduling, except where the delay or rescheduling is solely attributable to CCL’s own gross negligence. 

16. GENERAL 

16.1 Insurance 

CCL holds Professional Indemnity Insurance to the value of $1million. 

16.2 No waiver 

No failure to exercise, and no delay in exercising, a right of a party under this Agreement will operate as a waiver of that right, nor will a single or partial exercise of a right preclude another or further exercise of that right or the exercise of another right. No waiver by a party of its rights under this Agreement is effective unless it is in writing signed by that party. 

16.3 No amendment 

This Agreement may not be amended unless agreed in writing by both parties. 

16.4 Severability 

The illegality, invalidity or unenforceability of a provision of this Agreement under any law will not affect the legality, validity or enforceability of that provision under another law or the legality, validity or enforceability of another provision. 

16.5 Digital Signatures 

This Agreement may be signed by digital signatures where the process used for the digital signatures complies with the Contract & Commercial Law Act 2017. 

16.6 Counterparts 

This Agreement may be executed in any number of counterparts (including facsimile copies) all of which, when taken together, will constitute one and the same instrument. A party may enter into this Agreement by executing any counterpart. 

16.7 Relationship of the Parties 

Neither party will by virtue of this Agreement be, or for any purpose be deemed to be, an employee or agent of the other and no partnership will be deemed to arise between the parties as a consequence of this Agreement. 

16.8 Governing Law 

This Agreement is governed by, and is to be construed in accordance with, New Zealand law. The parties submit to the exclusive jurisdiction of the New Zealand courts.