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Terms & Conditions
General Terms
(a) This contract does not form a partnership or joint venture between the parties.
(b) The New Zealand Consumer Guarantees Act 1993 does not apply to any services provided for the Client’s business purposes.
(c) Any waiver given by either party must be in writing. Unless otherwise expressly stated, a waiver does not limit the parties’ liability.
(d) Neither party can assign their rights or obligations under this contract to another person unless the parties agreed to it in writing.
(e) New Zealand law applies to this contract.
Interpretation
(a) No inconsistency, omission or error in the contract documents invalidates this contract.
(b) Words used in the singular also include the plural, and words used in the plural also include the singular, as the context requires.
Client's and Quantity Surveyor's General Obligations
a) Both parties must:
i. act in the spirit of mutual cooperation;
ii. comply with all health, safety, and other legal obligations owed in law and under this contract;
iii. comply with all health and safety practices on site;
iv. keep each other adequately informed of matters affecting the services;
v. take up all insurance cover as required by this contract; and
vi. undertake all their obligations in a timely manner.
Quantity Surveyor's General Obligations
(a) The Quantity Surveyor must:
i. carry out the services in line with this contract and other services that may be agreed to be provided under a construction contract between the Client and third party;
ii. request any information needed to carry out the services;
iii. request the Client to make decisions when required;
iv. act independently and impartially when deciding on contract administration matters between the Client and a third party; and
v. get the Client’s approval before ordering any goods or services on the Client’s behalf that are additional to the services.
(b) If it forms part of the services, the Quantity Surveyor may give instructions to a third party engaged by the Client or others. The Quantity Surveyor must not give instruction to vary any work without the Client’s consent.
(c) The Quantity Surveyor must carry out the services with the reasonable skill and care expected of a professional consultant quantity surveyor providing similar services.
(d) The Quantity Surveyor is not responsible for the work of a third party that has been engaged by the Client or others.
(e) If an actual or potential conflict of interest arises, the Quantity Surveyor must inform the Client and any other interested party of the conflict, and encourage the Client to get independent professional advice. The Quantity Surveyor must not act or continue to act for the Client unless the Client provides written instructions and consent that acknowledges the actual or potential conflict.
(f) The Quantity Surveyor must notify the Client if the completion of the services will be delayed. The Quantity Surveyor must take reasonable measures within their control to reduce any delay to the services.
(g) The Quantity Surveyor must report on the progress of the services when reasonably requested by the Client.
(h) The Quantity Surveyor must get the Client’s approval before installing a sign on the project site.
Client's General Obligations
The Client must:
i. pay the Quantity Surveyor in line with this contract;
ii. promptly provide information to the Quantity Surveyor when requested;
iii. make decisions within a reasonable time when requested by the Quantity Surveyor; and
iv. allow the Quantity Surveyor access to the site and other locations as required.
(b) If the Quantity Surveyor’s scope of services includes issuing instructions to a third party engaged by the Client, all instructions must be given through the Quantity Surveyor.
(c) The Quantity Surveyor may request the Client to make decisions about some of the services to be provided by the Quantity Surveyor. The Client must respond to a request within a reasonable time.
(d) The Client must ensure it obtains advice from suitably
qualified design consultants or other professionals regarding its design requirements or other professional services that do not form part of the Quantity Surveyor’s services.
Communications
(a) All notifications must be in writing, dated, and securely sent to the relevant parties by e-mail or registered post.
(b) The Client must identify a contact person who is authorised to make decisions about the services. The Quantity Surveyor must be notified in writing if the Client’s contact person changes.
(c) The Quantity Surveyor’s contact person is responsible for coordinating the services and all communication with the Client. The Client must be notified in writing if the Quantity Surveyor’s contact person changes.
Subcontracting
(a) The Quantity Surveyor must not subcontract any of its
services under this contract without the Client’s
written consent, which must not be unreasonably
withheld. The Quantity Surveyor remains fully
responsible for any subcontracted services.
Time Obligations
(a) The Quantity Surveyor must complete the services in line
with 1.3, Part 1.
(b) The Quantity Surveyor must take reasonable measures
within its control to reduce any delay to the services.
(c) Each party must notify the other promptly if the
completion of their obligations will be delayed. If the
Quantity Surveyor did not cause the delay, the date for
completing the services must be extended by agreement
between the parties.
(d) The Client may suspend the Quantity Surveyor’s services
for up to six months. The Quantity Surveyor must make
arrangements to suspend the services and minimise
further expenditure. The Quantity Surveyor may provide
written notice to terminate the contract if the
suspension exceeds six months.
Payment
(a) The Quantity Surveyor may invoice the Client once a
month for progress payments for services performed to
date including the cost of disbursements listed at 4.3, Part 4.
(b) Each invoice must be submitted not later than the 5th of
the month after the services are performed. Unless
agreed differently, the invoice must be paid on or before
the 20th of the month after the services are performed.
(c) If the Quantity Surveyor’s invoice is intended to be
a payment claim under the New Zealand Construction
Contracts Act, it must state that the invoice is made
under the Act and include any information required by
the Act.
(d) The Client may assess the Quantity Surveyor’s payment
claim and respond with a payment schedule no later
than the 15th of the month after the services are
performed.
(e) The Client’s payment schedule must:
i. be in writing;
ii. identify the payment claim to which it relates;
iii. state a scheduled amount and how it was calculated; and
iv. provide reasons for any difference between the scheduled amount and the claimed amount; and
v. explain why, if the difference in 2.9 (e) (iv.) is because the Client is withholding payment.
(f) Late payment of the claimed or scheduled amount
entitles the Quantity Surveyor to interest on unpaid
undisputed amounts at 2% above the Quantity
Surveyor’s overdraft rate and costs incurred by the
Quantity Surveyor to recover the debt.
Variations to Services
(a) The Client may vary the Quantity Surveyor’s scope of
services by giving written notice.
(b) The Quantity Surveyor may notify the Client within 10
working days if it thinks any circumstance gives rise to a
variation. The notice must set out:
i. details of the estimated cost of the variation;
ii. the likely or estimated impact on the programme;
iii. the likely or estimated completion date for the services; and
iv. recommendations on how to proceed.
(c) After receiving a notice under 2.10(b), the Client must notify the Quantity Surveyor within 10 days whether or not it considers the circumstance to be a variation.
(d) If a variation by the Client to the Services will result in the Quantity Surveyor incurring additional cost, the Client and Quantity Surveyor must seek to agree on the adjustment to the Quantity Surveyor’s fee and time for completing the services.
(e) The Quantity Surveyor must seek to obtain approval
from the Client for any adjustment to the fees before
undertaking any variation to the services.
Liability and Insurance
(a) The Quantity Surveyor is liable to the Client for any reasonably foreseeable claims, damages, losses, or expenses caused directly by any breach by the Quantity Surveyor under this contract.
(b) The Quantity Surveyor is not liable for:
i. any indirect, consequential, or special damages of any kind;
ii. the work of a third party that has been engaged by the Client or others;
iii. errors in information provided by others; and iv. the act or failure to act by the Client or others engaged by the Client.
(c) For any damage that has been caused by more than one party, the responsible parties will only be liable in proportion to how much they contributed to the damages.
(d) Unless stated differently in this contract (1.4 (d) Part 1), the Quantity Surveyor’s maximum cumulative liability is five times the value of the Quantity Surveyor’s fee orNZD 250,000 whichever is lower.
(e) The Quantity Surveyor must hold professional indemnity and public liability insurance cover for at least the minimum levels stated in Part 1 of this contract. The Quantity Surveyor must use reasonable endeavours to ensure the professional indemnity insurance required by this contract remains valid for six years after completion of the services.
(f) Where requested, the Quantity Surveyor must give the Client evidence of the required professional indemnity and public liability insurance cover.
(g) The Client must ensure that any third party it engages is required to hold insurance as stated in Part 1 of this contract.
(h) The Quantity Surveyor is not a design consultant and has no liability for design or quality-related issues or defective work.
Confidentiality
(a) The detailed terms of this contract are confidential to the
parties.
(b) Neither party may make public statements about details
of this contract or confidential details of any project
without the other party’s consent.
(c) If the Quantity Surveyor obtains confidential information
about the Client’s affairs, the Quantity Surveyor must not
use the information for any purpose except the purpose
for which it was obtained.
(d) Neither party may disclose confidential information to
others unless it is:
i. required to allow that party to undertake the services;
ii. authorised by the other party;
iii. permitted or compelled by law; or
iv. necessary to make or respond to a complaint to NZIQS.
(e) If either party must disclose confidential information by
law, they must first notify the other party
Intellectual Property
(a) All intellectual property that existed before this contract
started remains the property of the original owner.
(b) The parties jointly own all intellectual property produced
by the Quantity Surveyor while providing the services.
The Client and Quantity Surveyor grant to the other an
unrestricted royalty-free licence in perpetuity to copy or
use such intellectual property.
(c) The Client may only use documents produced by the
Quantity Surveyor for the purposes intended under this
contract.
Termination
(a) Either party may terminate this contract by giving 20
days’ written notice if the other party has materially
breached the contract terms.
(b) If the Client was the party that materially breached
the contract, then after termination the Client must pay
the Quantity Surveyor all amounts due up to the date of
termination and damages suffered by the Quantity
Surveyor.
(c) If the termination was due to a breach of contract by the
Quantity Surveyor, the Client must pay for the amounts
due up to the date of termination less damages suffered
by the Client.
(d) After termination, the Quantity Surveyor must
provide reasonable assistance to the Client when
transferring the services to a new Quantity Surveyor.
(e) The provisions of this contract regarding insurance,
confidentiality, and intellectual property remain in effect
after the contract is terminated.
Disagreements
(a) The Client must notify the Quantity Surveyor of any
breach of this contract, and the Quantity Surveyor must
promptly remedy those breaches.
(b) The parties must attempt to settle disagreements by
negotiation or mediation in good faith.
(c) The parties may, at any time, refer disagreements to
arbitration in line with the Arbitration Act 1996. If the
parties cannot agree on an arbitrator, either party
may write to the authorised person of the Arbitrators’
and Mediators’ Institute of New Zealand Inc. for a sole
arbitrator to be nominated. The arbitrator will decide the
procedures and rules of the arbitration.
Terms and Conditions
© 2024 Kaupapa Projects Limited
Based in Whakatū, Aotearoa.
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