Terms and Conditions for Supply of Consulting Services by Ganesha Consultancy Limited
1.1 “GCL” means Ganesha Consultancy Limited and any person or entity authorised to act for and on behalf of Ganesha Consultancy Limited.
1.2 “Client” means a person/entity including any person authorised to act on behalf of that person/entity, who engages the services of GCL.
1.3 “Confidential Information” means any information that is marked or otherwise identified as confidential or proprietary at the time of disclosure and includes, but is not limited to, trade secrets, know-how, inventions, techniques, data, customer lists, personal data, financial information, sales and marketing plans of the other party, its affiliates, or its customers.
1.4 “Engagement Letter” means the written agreement entered into between GCL and the Client whereby GCL specifies the Services to be provided to the Client.
1.5 “Guarantor” means, where the Client is a limited liability company, the person or persons who agree to be held liable for the debts incurred by the Client on a principal debtor basis.
1.6 “Services” means the services provided by GCL to the Client and includes all such matters specified in the Engagement Letter between the parties.
1.7 “Terms” means these terms and conditions for the provision of the Services by GCL to the Client.
1.8 “Price” means the price payable for the Services as agreed between the parties in accordance with clause 4 of these Terms.
2.1 GCL agrees to provide the Services outlined in the Engagement Letter to be signed by the parties.
2.2 Where the Client is a limited liability company, GCL may require a Guarantor to enter into the Engagement Letter to secure the obligations of the Client.
3. Acceptance of Terms
3.1 Engaging GCL to provide the Services constitutes acceptance of these Terms. The Client agrees to be bound by these Terms unless the Client is purchasing such Services pursuant to a separate written agreement signed by both parties, in which case the terms of that separate agreement prevails.
3.2 Should more than one person/ entity enter into the Engagement Letter with GCL as the Client, each person/entity shall be jointly and severally liable for payment in full of the Price.
4. Price and Payment
4.1 Services will be invoiced in accordance with the provisions of the Engagement Letter.
4.2 Invoices are payable within 14 days of the date of invoice, unless alternative payment arrangements have been agreed between the parties.
4.3 Interest will be payable on all amounts which are more than 7 days overdue. Interest will be calculated at the rate of [2.5%] per calendar month and all interest shall compound monthly before and after any judgement until payment is received in full.
4.4 GST and other taxes and duties that apply by law will be added to the Price unless they are expressly included in the Price agreed in the Engagement Letter.
5. Consequences of Non Payment
5.1 The Client shall be responsible for GCL’s costs of collection for any payment default, including, but not limited to, legal costs on a solicitor and own client basis and GCL’s collection agency costs.
5.2 If payment is not received pursuant to and in accordance with clause 4 above, GCL reserves the right to suspend performance of the Services until payment of the Price is received (in full). GCL will not be liable for any loss or damage the Client has deemed to have suffered due to GCL exercising its rights under this clause.
6.1 GCL may cancel any Engagement Letter, to which these Terms apply, at any time prior to delivery of the Services upon written notice to the Client. Upon giving such notice, GCL shall return any prepayments made by the Client in respect of the Price but shall not be liable for any damages or losses (whether direct or indirect including consequential loss) arising from such cancellation under this clause.
6.2 The Client may only cancel any Engagement Letter, to which these Terms apply, no less than one month prior to delivery of the Services upon written notice. Upon giving such notice, the Client shall be liable for all losses incurred by GCL, including but not limited to, direct loss and damages for loss of opportunity and all other indirect/ consequential losses to a maximum amount equal to the Price payable for the Services under the cancelled Engagement Letter.
7. Intellectual Property
7.1 GCL retains all right, title and interest in any pre-existing intellectual property that is owned by GCL (“GCL IP”), and which may be used in carrying out the Services, including any modifications or improvements made to GCL IP during or as a result of the Services to be performed under these Terms and/or Engagement Letter.
7.2 Except for GCL IP and upon payment in full of the Price, all intellectual property designed, drafted or otherwise developed by GCL for the Client as part of the provision of Services shall be owned by the Client.
8. Confidential Information
8.1 Each of GCL and the Client will maintain in confidence and safeguard all Confidential Information of the other party.
8.2 Both GCL and the Client acknowledge the confidential and proprietary nature of the Confidential Information and acknowledge the irreparable harm that could result if such Confidential Information is disclosed to a third party or used for unauthorised purposes.
8.3 Each party agrees to use any Confidential Information of the other party strictly for the purposes of conducting business with each other in the manner contemplated in the Engagement Letter.
8.4 The obligations under this clause do not apply to information that:
(a) becomes generally known or is in the public domain through no act or omission of the other party;
(b) was lawfully in GCL’s or the Client’s position without restriction as to use or disclosure before its receipt from the other party;
(c) is received from, was made available to, a third party without any obligation or confidentiality restrictions; and
(d) is required to be disclosed by law.
9. Privacy Act
9.1 The Client and the Guarantor/s (if separate to the Client) authorise GCL to:
(a) collect, use and retain any information about the Client, for the purpose of assessing the Client’s credit worthiness or marketing products and services to the Client; and
(b) disclose information about the Client, whether collected by GCL from the Client directly or obtained by GCL from any other party, to any other credit provider any credit reporting agency for the purposes of providing or obtaining a credit reference, debt collection or notifying a default by the Client.
9.2 Where the Client and\or Guarantor/(s) are individuals, the authorities under clause
9.1 are authorities and consents for the purposes of the Privacy Act 1993.
9.3 The Client and\or Guarantor/(s) shall have the right to request a copy of the information held by GCL about that Client and\or Guarantor/(s) and have the right to request GCL to amend any incorrect information about the Client and\or Guarantor/(s) accordingly.
10. Dispute Resolution
10.1 If a dispute arises between the parties in connection with these Terms and/or Engagement Letter, the parties undertake in good faith to use all reasonable endeavours to settle the dispute.
10.2 In the absence of any agreement within 14 days of any notification of a dispute, the matter shall be referred to mediation by one mediator (agreed upon by the parties or if they are unable to agree within 7 days, one appointed by the President of the Auckland District law Society Incorporated). The parties shall bear an equal share of the costs of such mediation.
10.3 If the parties fail to reach agreement through mediation within one month following appointment of the mediator, they may refer the matter to arbitration or the Courts.
10.4 Nothing in this clause 10 will preclude or prevent any party from taking immediate steps to seek urgent interlocutory relief from an appropriate Court. All disputes shall be heard in New Zealand.
11. Limitation of Liability
11.1 No action, whether for indemnification or otherwise, arising out of a transaction under these Terms and/or Engagement Letter, may be brought against GCL more than twelve (12) months after the alleged damage, loss or expense occurred.
11.2 To the maximum extent permitted by law, GCL shall be under no liability whatsoever to the Client, any affiliate or any third party, whether as to a breach of contract, warranty, tort (including negligence), strict liability, statute or otherwise, for any indirect, special, incidental or consequential loss and/or damage (including, without limitation, loss of profits whether direct or indirect, data, operational efficiency, or use of information) arising out of or in connection with a breach of these Terms and/or Engagement Letter.
11.3 In the event of any breach of these Terms and/or Engagement Letter by GCL, the total amount of direct damages recoverable by the Client from GCL under these Terms and/or Engagement Letter shall under no circumstances exceed the Price paid or to be paid by the Client for the Services provided under the relevant Engagement Letter.
11.4 The Client shall not be entitled to set off against or deduct from the Price any sums owed or claimed to be owed to the Client by GCL.
12.1 If any provision of these Terms shall be invalid, void, illegal or unenforceable, the existence, validity, legality and enforceability of the remaining provisions shall not be prejudiced, affected or impaired.
12.2 These Terms and any Engagement Letter to which they apply shall be governed by the laws of New Zealand and are subject to the exclusive jurisdiction of the New Zealand Courts.
12.3 GCL reserves the right to review these Terms at any time. If, following any such review, there is to be any change to these Terms, then the change will take effect from the date on which GCL notifies the Client of such change.
12.4 The failure by GCL to enforce any provision of these Terms shall not be treated as a waiver of that provision, nor shall it affect GCL’s right to subsequently enforce that provision.