Terms & Conditions
Unless otherwise agreed in separate contract between Grey Wolf Consulting Ltd (GWC) and the Client/You, the following terms will apply to any agreed services that GWC will carry out
GWC’s obligations
1. GWC will perform the Services and its obligations using the degree of skill, care and diligence reasonably expected of a professional consultant providing services similar to the Services.
Client obligations
2. Information: The Client must provide GWC with the information requested by GWC as soon as possible following request, and GWC has no responsibility for any delay while such information remains to be provided. Such information may include any third party reports (with the Client to engage such third parties directly) and the property file which unless agreed otherwise the Client is responsible for sourcing from the BCA.
3. The Client is responsible for the accuracy and reliability of all information provided under clause 2. GWC may also rely on information provided by third parties including the BCA, and will have no liability for the accuracy, completeness or reliability of the same.
4. Payment: The Client must pay GWC the Fee for the Services. GWC is entitled to payment prior to the issue of any report. Unless otherwise agreed, payment is due from the Client within 7 days of GWC sending its invoice.
5. If the Client fails to pay any amount due and payable by the due date, then on 2 days’ written notice if the default is not rectified within that time GWC may immediately or at any time thereafter suspend performance of all its obligations until payment is made in full. GWC will promptly lift the suspension once such payment is made. In addition to its right of suspension, GWC is also entitled to recover from the Client interest on any overdue amount from the due date to the date of payment at the rate of 2.5% per month (compounding monthly and continuing to accrue after any judgment), and the actual costs of any steps taken by GWC in an attempt to obtain payment, payable immediately on demand.
6. Where the Construction Contracts Act 2002 applies to the Services and GWC has issued its invoice in the form of a payment claim, if the Client disputes the amount claimed, it must issue a payment schedule within the time for payment (7 days). Otherwise if the Client reasonably and genuinely disputes part or all of an invoice, it must promptly give GWC the reasons for the dispute and pay any undisputed amount in accordance with clause 4.
7. Access: The Client must at all reasonable times allow GWC to visit the Site to carry out any inspections GWC reasonably deems necessary for the Services (which will be limited to visual inspections and subject to any other exclusions and assumptions set out in these terms and conditions).
Intellectual Property
8. Intellectual property prepared or created in the course of the Services and provided to the Client as a Deliverable (“New Intellectual Property”) will be jointly owned by the Parties, and both Parties grant to the other a perpetual unrestricted royalty-free licence to copy or use the New Intellectual Property. This clause is subject to clause 11.
9. Intellectual property owned by either Party prior to the commencement of this Agreement or created independently of this Agreement (“Retained Intellectual Property”) remains the property of that Party.
10. GWC has no liability for use of New Intellectual Property or Retained Property other than to the extent reasonably required for the purpose of the Services, and subject to clauses 12.
11. The Client’s rights under clause 8 are subject to: the Client having paid GWC all amounts due and owing for the Services to which the New Intellectual Property relates (and until such time the New Intellectual Property remains GWC’s property); and clause 12.
Deliverables
12. The Services (including all Deliverables) are for the sole benefit of the Client for the specific purpose in or necessarily implied by the scope of services and subject to all assumptions and exclusions in these terms and conditions. Deliverables may not be provided to any third party without GWC’s prior written consent (and notwithstanding any such consent, GWC has no duty, responsibility, or liability to any third party who purports to rely on or use any Deliverable).
13. The Client fully indemnifies GWC for any breach by the Client of clause 12, and any purported reliance by a third party which has received a Deliverable as a result of (directly or otherwise) the Client providing to a third party that Deliverable.
Consumer Guarantees Act 1993 and Fair Trading Act 1986
14. Where the Client is in trade, the Services are acquired in trade, and it is fair and reasonable under section 43 of the Consumer Guarantees Act 1993 (CGA) and section 5D of the Fair Trading Act 1986 (FTA), then the Parties agree that in connection with the Services and these terms and conditions that: (a) the Consumer Guarantees Act 1993 will not apply; and sections 9 (misleading conduct), 12A (unsubstantiated representations) and 13 (false or misleading representations) of the FTA will not apply to either Party’s conduct or representations if unintentional. The Parties acknowledge it is fair and reasonable under section 43 of the CGA and section 5D of the FTA that they be bound by this clause.
Liability and Exclusions
Subject to the Client’s rights under the Consumer Guarantees Act 1993 and Fair Trading Act 1986, but to the maximum extent permitted by law:
15. If GWC breaches these terms and conditions, it is liable to the Client for reasonably foreseeable claims, damages, liabilities, losses and expenses caused directly by the breach.
16. GWC is not liable for any indirect, consequential or special loss, or loss of profit, however arising, whether under statute, tort (including negligence) or otherwise.
17. GWC has no liability for damage to property as a result of any invasive inspections or testing carried out as part of the Services.
18. The maximum aggregate amount payable by GWC, whether in contract, tort (including negligence) or otherwise, in relation to any claims, damages, liabilities, losses and expenses is 2x the Fee.
19. Without limiting any defences GWC may have under legislation, GWC will not be liable for any damages, liabilities, losses and expenses unless a formal claim is made against it within 6 months the earlier of the completion of the Services and the termination of its engagement.
20. If GWC is found liable and the Client and/or a third party has contributed to the relevant damage, liability, loss or expense, then GWC will only be liable up to the proportional extent of its own contribution.
21. The Parties acknowledge Deliverables are GWC’s opinion in accordance with clause 1 and subject to all further assumptions, exclusions and limitations in the scope of services and these terms and conditions, and that nothing in these terms and conditions constitutes any warranty or guarantee.
Disputes
22. If there is a dispute relating to these terms and conditions or any matter arising from GWC's engagement by the Client, the Parties will in the first instance use reasonable endeavours to resolve the dispute between themselves. If the Parties fail to resolve a dispute within 20 working days of one notifying the other (or such further agreed time) then either Party may refer the dispute to arbitration before a sole arbitrator in accordance with the Arbitration Act. If the Parties cannot agree on the arbitrator, either Party can apply to the Arbitrators & Mediators Institute of New Zealand Inc to appoint an arbitrator.
23. Where the nature of the Services is such that the Construction Contracts Act 2002 applies, nothing in clause 22 affects either Party’s rights under that Act.
24. In the event a dispute is resolved formally (whether by way of court, arbitration or adjudication) to the extent GWC is successful in any claim or defence to a claim by the Client, it will be entitled to its solicitor-client costs on a full indemnification basis.
Termination
25. Either Party may immediately terminate the engagement if the other Party is in material default that has not been remedied within 7 days’ notice of breach. Termination will not affect the accrued rights and liabilities of either Party.
26. If GWC terminates for a default by the Client, the Client will immediately pay GWC for all Services provided to the date of termination (regardless of whether a Deliverable has been completed) plus any reasonable costs GWC incurs because of the early termination.
General
27. These terms and conditions are subject to New Zealand law, and all dollar figures are in NZ$. Any proceedings about these terms and conditions or the Services must be brought and heard in New Zealand.
28. Unless the Parties enter into a separate contract, these terms and conditions will constitute the entire agreement between the Parties concerning the Services, and supersede all previous negotiations, representations and warranties (unless in each case expressly incorporated into these terms and conditions).
29. Any variations must be in writing and signed by both Parties.
30. Any waiver by either Party must be in writing and is binding strictly in accordance with the terms on which it is given. No waiver by a Party binds that Party to future waivers.
31. Each provision of these terms and conditions is separately valid and binding. If for any reason either Party cannot rely on any provision, the balance of the terms and conditions remain valid and binding and the Parties will negotiate in good faith for an alternative provision with similar financial effect.
32. If an event occurs which is (i) beyond the control of either Party; and (ii) is not caused by either Party; and (iii) prevents otherwise required performance of the Services (in whole or in part), then those Services will be suspended until it is practicable to recommence them. If it is reasonably likely the Services will not be able to be recommenced, or the suspension lasts for more than 6 months, then either Party may terminate the engagement. Where Services have been suspended or delayed due to an event under this clause GWC will be allowed reasonable extra time to complete the Services. This clause does not apply where the event is Client lack of funds, but does apply to time taken by the BCA.
33. Any notices, payment claims or payment schedules must be in writing and may be delivered to the other Party by (a) email to the addresses used for communications about these terms and conditions / the Services between the Parties (in which case notice is considered sent when emailed, provided email sent after 5pm or on a day which is not a working day, is deemed not received until 9am the next working day); or (b) in the case of notices or payment claims to the Client, delivered by hand or by registered letter to the Site.
Privacy
34. For the purpose of the Privacy Act 2020, the Client authorises GWC to collect, hold, use and disclose personal information for the purpose of carrying out the Services and performing its contractual obligations, enforcing its rights in relation to these terms and conditions, and to facilitate communications with the Client. A copy of GWC’s privacy policy is available at its webpage (www.greywolf.co.nz).
Definitions
35. BCA means, unless otherwise specified, Auckland Council.
36. Deliverable means any report or other document, advice or opinion provided to the Client by GWC or to the BCA on the Client's behalf as part of the Services.
37. Fee means the price payable by the Client for the Services as advised by GWC.
38. Services means the services which the Client has asked and GWC has agreed to carry out subject to any assumptions and exclusions set out in any correspondence between the Client and GWC about the Services, and elsewhere in these terms and conditions.
39. Site means the location associated with the Services.
40. "days" means calendar days, and "months" means calendar months.
The Services are subject to the following assumptions, limitations and exclusions
41. Unless otherwise specified in the description of the Services, they will be limited to a visual inspection of non-concealed or non-closed-in elements only, and which will be subject to any physical access limitations on Site and any limits on GWC’s access granted by the Client (including areas being blocked by furniture or other household items, floor coverings and the like, which will not be moved by GWC).
42. Some issues may not be detectable from a visual inspection where an issue is only intermittent, or dependent on a type of weather (such as heavy rain) which did not occur during the inspection.
43. GWC’s report (where required as a Deliverable) will be prepared having regard to assumptions it may reasonably make in accordance with sound professional principles and in reliance on any information provided by the Client and the BCA.
44. GWC will carry out the Services in consultation with the BCA. The final decision regarding certificates of acceptance and the like and any related requirements rests solely with the BCA, and GWC will have no liability arising from or in connection with any decision, interpretation or action taken by the BCA in connection with the Services.
45. The Services do not include any advice relating to sale and/or purchase of any property at the Site.
46. In carrying out the Services, GWC will be relying on unverified information from the BCA.