The following conditions are incorporated in all engagements of U6 Photomontages Limited ("U6").
1. BRIEFING REQUIREMENTS
The client or his/her/its principal shall ensure that his/her/its instructions and requirements are clearly and unambiguously conveyed to U6 and that all supporting data is complete and accurate.
2. SERVICES PROVIDED
U6 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. U6 may be required to inspect works being constructed. Unless otherwise agreed in writhing, this service shall be limited to periodic site visits to assist in interpreting the design and to observe whether the works for which U6 is the professional adviser are being carried out in general accordance with the contract documents. Any such observation shall not transfer to U6 any of the responsibilities of a contractor and shall not in any way limit the responsibilities of a contractor to carry out the works in accordance with this/her contract.
3. FEE PAYMENTS AND INVOICING
Fees associated with the goods and services supplied by U6 may be required to be paid to U6 prior to supply of the final stages of the services. U6 shall be entitled to charge on a monthly basis to the full value of the work completed. Accounts not paid within 20 days of the date of issue of the account shall be subject to interest at 2.0% 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 shall be subject to a service charge of 10%.
5. HOURLY RATES
U6 may agree to a quoted fixed fee for the provision of agreed services or may agree to charge for it services on a time and attendance basis or a combination. Time based professional charges will be made in accordance with currently hourly rates except for any increase occurring during the commission as a result of any general wage order or salary review and for special charges should overtime be necessary in order to meet the client's requirements.
The estimated fee and the estimated completion date where given have been assessed in the light of information currently known to U6. An estimated fee is not a quotation, and the estimated completion date is not an undertaking by U6 to complete by that date. If revised estimates and completion dates become necessary these will be provided if possible.
7. PERSONAL PROPERTY SECURITES ACT
U6 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 U6 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 U6's intellectual property in any photomontages or documents created is a security interest for the purposes of the Personal Property Securities Act.
8. 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 U6 is engaged. Where U6 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 U6 is appointed is acting as agent for the Principal, the party by whom U6 is appointed shall be responsible for payment of all fees and job costs and undertakes to indemnify U6 for any unpaid fees or job costs.
9. CLIENT ACTING AS AGENT
If the client is acting as agent (whether in the capacity of engineer, architect, contractor or the like) then the client shall be absolutely responsible for passing on to its Principal all advice given and copies of documents provided by U6 to the client.
10. COMPANY'S AND TRUSTS
If the client is instructing U6 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 then the client's instructions are accepted on the basis that the client remains at all times personally liable (along with the company, trust or estate) to pay U6 fees and disbursements.
11. COPYRIGHT AND USE OF DOCUMENTS
Copyright in all photomontages and documents and in the works executed from them, will remain the property of U6. The client shall be licensed on payment of all fees and other job costs due to U6 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 U6 duties and responsibilities in a manner inconsistent with the terms of this/her agreement. We do not relinquish layered files in either .psd, .dwg or .max format. These remain the propery of U6 Photomontages Limited.
12. LIMITATION OF LIABILITY
U6 shall not be liable for the commercial performance of the project, 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, U6's 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 U6 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 U6 or any subconsultants, then the maximum amount of that liability in total for the aggregate of such claims shall be limited to five times the fee for the services (excluding disbursements) up to a maximum sum of $10,000. The limitation shall apply to every claim whether it arises from contract or tort including negligence or otherwise. The liability of U6 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 'U6' shall include all employees of U6.
(b) The expression 'Subconsultant' shall include all parties engaged by U6 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. U6 disclaims responsibility for the services provided where variations are made to our design 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
13. POSTPONEMENT OF SERVICES AND TERMINATION OF ENGAGEMENT
Any agreement between U6 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, U6 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, U6 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.
14. SETTLEMENT OF DISPUTES
In the event of any dispute arising between U6 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 Institute of Surveyors New Zealand to appoint an arbitrator and the arbitrator shall be so appointed.
U6 retains the ownership of and does not relinquish layered files in either .psd, .tiff, .eps, .dwg, .3ds, .dgn, .dxf, .obj formats. These remain the property of U6 Photomontages Limited unless otherwise agreed.