Terms of Business
1. Definitions In these Terms of Business:
- “Agreement” means these Terms of Business together with any Service Proposal or Quote and any other written document relating to Services.
- “Fee” means the fee for the Services payable in accordance with the Service Proposal or Agreement.
- “Products” means any goods supplied by us to you from time to time and includes all written material and images supplied to you (including questionnaires and marketing plans) whether in proof or final versions.
- “Service Proposal” means the written proposal or quote containing the Services we agree to supply to you.
- “Services” means the services or Products we agree to supply to you as set out in the Service Proposal or Agreement.
- “us”, “our” and “we” means Emendas Limited trading as Emendas.
- “you”, “your” or “the Client” means the organisation or individual who engages us to supply the Services and who will pay our fees.
These Terms of Business (“Terms”) apply to all work carried out by us for you, except to the extent that we otherwise agree with you in writing.
2. Basis of Service Provision
We will supply the Services to you in accordance with the Services Proposal or Agreement. Any request for additional services must be made in writing. We will let you know of any additional costs for these new services.
The hours undertaken by Emendas as part of any Agreement are both in-person with the client and also hours that Emendas spends working on the clients business, away from the clients premise.
While we will endeavour to ensure we complete the Services within the timeframes outlined in the Service Proposal or Agreement, the dates indicated are estimates only. We will not be liable to you or any other person for the late completion of any Services.
2.3. Your Responsibilities
You are responsible for providing adequate instructions and information to enable us to perform the Services. When we request further instructions and information to enable us to perform the Services you will supply these promptly.
2.4. Third-Party Products and Services
You are responsible for discontinuing any subscriptions you purchase directly from third party suppliers of products or services in advance of any automatic renewal date, notwithstanding that we may have introduced you to such products or services or may be a reseller of such products or services.
Any contracts for the supply of third-party products or services will be entered into by you and the supplier directly, and we will not be a party to any such contracts.
Except for any service level guarantee provided by a third party in relation to a specific product or service, third party products and services are delivered on an "as-is" and "as-available" basis, and you agree and accept that your use of third-party products and services is at your sole risk.
We make no warranties as to the operation or availability of any third-party products or services, whether on-line or not.
We are not a specialist provider of any products or services other than as set out in the Services Proposal or Agreement, and your use of third-party products or services does not constitute the receipt of specialist advice from us.
It is your sole responsibility to determine that the third-party products and services meet your needs and are suitable for the purposes for which they are used.
Where it is necessary for you to provide your data (or data relating to any of your employees or contractors) to a third party product or service provider it is your responsibility to check that disclosure, storage of and access to your data via third party software will comply with laws applicable to you (including any laws requiring you to retain records) and we will have no responsibility in this regard.
You acknowledge that we may gain access to your data in the course of the provision of third-party products and services. To the extent that any such data comprises personal information for the purposes of the Privacy Act 2020 and is disclosed to us in the course of the provision of the Services, we will comply with all obligations we have under the Privacy Act 2020 and any other data protection laws applicable to us, for the terms of the Agreement.
The Agreement may only be varied by agreement of both parties in writing.
3. Health and Safety
We are aware of, and comply with, any relevant obligations imposed on us under the Health and Safety at Work Act 2015.
You will comply with all health and safety legislation, including the Health and Safety at Work Act 2015, and provide a safe workplace. You will provide personnel with a list of any identified hazards and take all reasonable steps to eliminate hazards and control risks to health and safety.
4. Fees and Payment
You will pay the Fees as stated in the Service Proposal or Agreement.
The Service Proposal or Agreement, or other document may specify a fixed Fee for certain projects. Work that falls outside that scope will be charged on an hourly rate. We will advise you as soon as reasonably practicable if it becomes necessary for us to provide Services outside the scope and if requested, give you an estimate of the likely additional Fee.
Where our Fees is calculated on an hourly basis, the hourly rates are set out in the Services Proposal or Agreement.
Unless otherwise agreed in writing, the prices of any Products or supporting systems will be the current price on the day of order and will not include any setup fees, which will be charged separately.
You may ask us to provide Fee estimates for certain Services. While we will use all reasonable endeavours to ensure that our Fee does not exceed the estimate, this may not always be possible. In these situations, we will provide you with a revised Fee estimate for the completion of the Services.
4.3. General Costs
The parties will meet their own costs relating to the negotiation, preparation and implementation of the Agreement.
4.4. Travel Costs
If an Emendas contractor needs to travel out of Auckland to deliver services for you, or on your behalf, all travel costs and disbursements will be passed onto you via invoice. Travel out of Auckland is charged at the IRD mileage rates. Auckland is considered to be as per the Auckland City Council regional boundary.
4.5. Retainer / Plan Agreements
Where the Services are performed under a retainer or plan agreement you agree to pay a fixed Fee per month. This monthly Fee is payable by automatic payments set up by you in advance with payments due on the 20th of the month. Retainer or plan agreements are for a minimum term of twelve months unless otherwise agreed in writing.
Agreed rate project services will be charged with 50% deposit payable upon confirmation or booking, with the remaining 50% payable upon completion. For charge up Services charged at hourly rates we will send you an invoice either when the Services have been completed or at certain milestones of a project as outlined in the Service Proposal or Agreement. Payment is due within 7 days of invoice date. Cash Sale accounts are to be settled upon invoice.
If we make an error or omission on an invoice, we will notify you as soon as possible and you agree to pay the amount contained in the new amended invoice by the due date for payment.
Any fees or prices quoted to you are excluding G.S.T unless otherwise stated and are quoted in New Zealand dollars unless otherwise specified. G.S.T is payable by you on our Fees and any other charges.
Payment can be made direct to:
- Bank account name: Emendas Limited
- Account number: 38-9019-0206771-00
Please provide your company name and invoice number as references to your payment.
4.9. Late Payment
If you do not pay us on time, then we reserve the right to stop performing Services until your account is settled in full.
Penalty interest may be charged on any amount which is more than 7 days overdue. This penalty interest will be calculated at the rate of 24% per annum and charged to your account on a weekly basis.
If an account is not paid within thirty days after the due date, the account may be referred to our debt collection agency. Collection, legal costs and interest will be added to overdue accounts.
5. Copyright and Other Intellectual Property
All work produced by us under the Agreement or otherwise, and the right to the copyright and all other intellectual property in all such work, is the sole property of Emendas Limited.
5.1. Confidentiality of Emendas Intellectual Property (IP)
We encourage you to actively use the knowledge gained and apply the tailored actions that result from your work with Emendas. We ask this is done in a manner that protects our business IP and commercially sensitive information and outputs (documents, reports, resources, and processes).
The assessments and plans that will be created as part of the service agreement is a critical part of Emendas intellectual property and cannot be shared unless without prior agreement. You agree to not share the approach, format and contents of any potential business or ScoreCard assessment or strategic management or compliance plan (including the questions asked that you work through as part of assessment and planning) that may be created as part of your work with Emendas with any other party beyond your employees and agreed advisors. This includes with any other business advisors nor clients without express written permission from Emendas.
Emendas licences products and services to other advisors and industry professionals. In these instances a licence fee applies to the IP supporting this, and therefore the Emendas approach and output is commercially sensitive.
5.2. Intellectual Property
We retain ownership and copyright in all our intellectual property, which includes our brand name, domain name, marketing materials, template documents and systems, and other proprietary information developed by us or by our sub-contractors and used in the provision of Products or Services to you.
We grant you a non-exclusive, non-transferable, royalty free licence to use our intellectual property for the term of the Agreement solely for the purposes of your business. You may not copy or reproduce any of our intellectual property or share it outside your organisation.
5.3. Confidential Information
“Confidential information” refers to information which is not in the public domain. We will hold in confidence all Confidential Information concerning you and your business that we acquire. We will not during the term of the Agreement or after its termination (for whatever reason) disclose any Confidential Information to any other person except:
a) to the extent necessary or desirable to enable us to carry out your instructions
b) as required by law.
c) This clause continues after expiry or earlier termination of the Agreement.
6. Cancellation, Termination, Expiry and Renewal
6.1. Cancellation Fee
If for any reason, you are unable to complete the services or attend the events agreed, there will be cancellation fees as follows:
a) More than 28 days of the service completion or event date there is no charge.
b) 14 to 28 days of service completion or event date, cancellation fee will be 20% of the remaining service, or event fee
c) Within 14 days, 100% cancellation fee will be charged. Note that if the service or event is rescheduled, or a booking is made for a pre-scheduled public event, 80% of this cancellation fee will be transferred to this service/event.
6.2. Early Termination
Once we have commenced providing Services, you may request to terminate our Services at any time in accordance with to the following:
a) If the Services relate to a specific project you must give us not less than 90 days’ notice of termination in writing.
b) If the Services are performed on a casual, charge-up basis you must give us not less than 30 days’ notice of termination in writing.
6.3. Termination for Breach
We may terminate the Agreement for any material breach by you, including failure to pay any undisputed fees, upon fifteen (15) days’ written notice to you.
6.4. Renewal of Retainer or Plan Agreement
In the eleventh month of any twelve (12) month term, either of us may choose not to renew the Agreement by providing 30 days’ written notice to the other party. If written notice is not given by either party at the end of each 12-month term, then the Agreement will automatically renew for a further 12-month term.
6.5. Termination of Retainer or Plan Agreement
In the event that the retainer or plan agreement is terminated by you during a 12-month term, you will be liable for any unpaid retainer or plan fees for the balance of that 12-month term.
6.6. Other Termination
In the event that the retainer or plan agreement is terminated by you during a 12-month term, you will be liable for any unpaid retainer or plan fees for the balance of that 12-month term.
7. Liability And Indemnity
To the maximum extent allowable by law, we have no liability to you for any indirect or consequential loss, nor any loss of or damage to profit, revenue, savings, data, use, contract, goodwill or business or expense suffered by you, following a breach of the Agreement by us.
We will hold any of your property supplied to us on your behalf (including photographs, images and copy) at your sole risk. The ownership of any digital artwork or similar items supplied by you to us will remain with you.
All warranties implied by law or by customary practice are excluded to the extent legally permitted.
We make no representation as to the originality of any ideas, suggestions, concepts, proposals, plans nor as to the ownership of any ideas or their suitability for specific market requirements.
If we do breach the Agreement and are found to be liable, your remedies will be limited to damages, and under no circumstances will our liability exceed the fees paid by you to us for the relevant Services during the three months before the relevant breach.
You will indemnify us and keep us indemnified for all costs, claims, liabilities, loss or damage arising directly or indirectly by reason of your negligence, or the negligence of your employees or contractors, or any breach by you of the terms of the Agreement.
8.1. Written notice
Any written notice required to be given pursuant to the agreement will (without limitation) be deemed validly given if delivered by hand or sent by email to the intended recipient’s nominated address (or to such other address as the intended recipient will notify to the other party by written notice from time to time).
8.2. No communication is to be effective until received
A communication will, however, be deemed to be received by the addressee:
a) in the case of personal delivery, when delivered; or
b) in the case of an email, on the Business Day on which confirmation of receipt or reading is given (in any form other than automated confirmation of receipt) or, if given after 5.00pm (in the place of receipt) on a Business Day or, if given on a non-business Day, on the next Business Day after such confirmation is given.
8.3. Addresses of the parties
The initial addresses of the parties for the purposes of this clause are set out in the Agreement.
9. Dispute Resolution
9.1. Dispute resolution process
Subject to clause 9.6, a Party may not commence any proceedings relating to a dispute between the Parties unless the Party has complied with clauses 9.1 to 9.4.
9.2. Dispute notice
If there is a dispute between the parties in relation to the Agreement, either party may give the other party notice of the nature and details of the dispute.
Within 15 days of receipt of the notice of dispute, the parties will meet to endeavour to resolve the dispute.
If the dispute is not resolved within 30 days of receipt of the notice of dispute, either party may by notice to the other party refer the dispute to mediation. The mediation will be in Auckland and conducted under the LEADR New Zealand Incorporated (“LEADR”) standard mediation agreement. If the parties do not agree on a mediator or the mediator’s fees within seven days of receipt of the notice of mediation, the mediator will be appointed, or the fees set by the chair of LEADR (or their nominee) at the request of either party. The parties will bear the mediator’s fees equally.
9.5. Continued performance
Regardless of any dispute, each party will continue to perform the Agreement to the extent practicable, but without prejudice to their respective rights and remedies.
9.6. Urgent relief
Nothing in this clause 9 will preclude a party from seeking urgent interlocutory relief before a court.
You agree not to employ or contract any person who is our contractor or employee or has been during a period three months prior to employment. If any such person accepts employment or a contract with you, then you will be liable to pay us a placement fee of 15% of the annual salary received by that person during their last year of employment or engagement with us.
10.2. Events Outside Our Control
If any cause beyond our reasonable control including but not limited to order of a government or other authority, strike, lockout, labour dispute, delays in transit, difficulty in procuring components or equipment, embargo, accident, emergency, act of God interfere with our performance of any of our obligations under the Agreement then we may at our sole discretion suspend our performance of any such obligation or terminate the Agreement and we will not be liable to you in any respect.
The provisions of the Agreement relating to indemnity (clause 7), confidentiality (clause 5.3) and intellectual property (clause 5.2) will continue after the termination of the Agreement.
The parties will not (except as may be required by law or regulation) make any announcement or disclosure regarding the Agreement or its subject matter except in a form and manner and at such time as the parties will agree.
10.5. Further Assurances
Each of the parties agrees to execute and deliver any documents and to do all things as may reasonably be required by the other party to obtain the full benefit of the Agreement according to its true intent.
10.6. Entire Agreement
The Agreement constitutes the entire agreement between the parties about the subject matter of the Agreement. It supersedes and extinguishes all earlier negotiations, understandings and agreements, whether oral or written, between the parties relating to the subject matter of the agreement.
If any term of the Agreement becomes unenforceable, illegal or invalid for any reason, the relevant term is to be deemed modified to the extent necessary to remedy the unenforceability, illegality or invalidity. If this is not possible, the relevant term is to be severed from the agreement without affecting the enforceability, legality or validity of any other term of the Agreement.
The Agreement may be executed in two or more counterparts, each of which will be deemed an original, but all of which together will constitute the same instrument.