Terms of engagement
These terms of engagement apply to all assignments between the Client and Deb Bailey at Deb Bailey Limited (DBL)
1 SERVICES
1.1 DBL agrees to provide to the Client with the programmes and services set out in the specific proposal (Assignment).
1.2 The methodology for the provision of the services required for the Assignment is set out in the specific proposal.
2 PERIOD OF ENGAGEMENT
2.1 Subject to clause 3.1, this engagement will commence on the date of the Client accepting the specific proposal for the assignment and will conclude when the Assignment has been completed (unless terminated earlier in accordance with these terms).
3 FEES AND EXPENSES
3.1 The Client shall pay DBL for the Assignment in accordance with the accepted proposal. The engagement is not confirmed until payment has been received in accordance with the payment schedule in the proposal.
3.2 If the Client wishes to add more participants to the services being provided by DBL, the Client must request the approval of DBL in writing and agrees to pay the amounts agreed with DBL for the additional participants.
3.3 In addition to the fees described in clause 3.1, the Client is responsible for all costs associated with room hire, equipment, accommodation and travel for both learners and facilitator(s), catering, any additional speakers, or activities.
3.4 Airfare travel will be reimbursed by the Client, DBL fly’s full economy on domestic flights within New Zealand and business class on international flights outside of New Zealand.
4 GOODS AND SERVICES TAXES
4.1 All Goods and Services Taxes and any other similar valued added taxes or levies payable on any of our fees or expenses shall be borne by the Client.
5 DATA AND CONFIDENTIALITY
5.1 The Client undertakes to provide DBL with all data in an acceptable format that DBL reasonably requires to carry out the Assignment.
5.2 Deb Bailey and DBL will treat as confidential all information concerning Client’s activities and affairs that is gathered during any assignment. Deb Bailey and DBL agree to hold such information in strict confidence, and not disclose it to others without the Client's express permission or until the information is otherwise released by the Client or already in the public domain.
6 RIGHTS TO INTELLECTUAL PROPERTY
6.1 Each Party:
(a) agrees that it will not have any claim, ownership or interest in the other party’s Intellectual Property or improvements in such Intellectual Property.
(b) grants the other Party a non-exclusive, royalty-free, non-transferable licence for the use of any Intellectual Property made available by the granting Party for the purpose of carrying out the Assignment.
6.2 The Client warrants to Deb Bailey and DBL that it is entitled to use and deal with any Intellectual Property rights which may be used by it in connection with the Assignment and will indemnify Deb Bailey and DBL against any loss, damage claim, action or expense arising out of or in connection with any breach or alleged breach by the contractor of the Intellectual Property rights of any third person, relating to the Assignment.
6.3 The ownership of any Intellectual Property developed during the Assignment shall vest, on its creation, in DBL.
6.4 DBL shall grant to the Client a non-exclusive, royalty-free, non-transferable licence to use DBL's Intellectual Property during the Assignment. The Client shall not use DBL's Intellectual Property for any other purpose without the written approval of DBL, which DBL may grant or withhold in its sole discretion.
6.5 The Client agrees to execute any documentation necessary or desirable to give full effect to its obligations under this clause.
6.6 For the purposes of this Agreement:
(a) “Intellectual Property” means all company and business names, trade names, trademarks, logos, symbols, emblems, designs or other indicia, inventions, patents, trade secrets, know how, processes, and any other intellectual property whatsoever (including copyright), registered or unregistered, currently owned and in existence or to be developed in the future by a party.
7 CONFLICT OF INTEREST
7.1 Deb Bailey and DBL warrant that they do not hold any office, possess any property, is not engaged in any business trade or calling and does not have any obligations by virtue of any contract whereby, directly or indirectly, duties or interests which are or might be created in conflict with its duties and interests under the Assignment.
8 LIMITATION OF LIABILITY
8.1 The liability of Deb Bailey and DBL in respect of errors, omissions or inadvertent negligence in respect of the Assignment is restricted to the lower of any damages (excluding economic loss) suffered by Client which is caused directly by Deb Bailey or DBL or the portion of the professional fees (i.e. excluding all expenses and non-professional fees charged for the project) paid by the Client to DBL under the Assignment with respect to the stage of the project in which the error, omission or inadvertent negligence occurred.
8.2 DBL undertakes to effect and keep in force during the currency of the Assignment a professional indemnity insurance policy in respect of all professional advice.
8.3 DBL shall not be liable to the Client for any:
(a) Delay in supplying the Assignment or non-performance of the obligations of DBL due directly or indirectly to circumstances beyond the control of DBL including strikes, accidents, civil commotion, epidemics, Pandemic lock down restrictions, floods, bad weather, delays in transportation, acts of God, acts, demands or requirements of any government, Council or similar body, the failure of the Customer and any other delays as a result of any failure of the Client insofar as the same are not reasonably attributable to DBL (Delays).
(b) Costs, loss or damage incurred or suffered by the Client as a result of the late, short or non-delivery of the Assignment. Any time for delivery indicated by DBL shall be approximate only and shall not be of the essence of the contract between the parties.
9 TERMINATION AND CANCELLATION
9.1 In the event of the Client or DBL being dissatisfied with any part of the assignment both parties undertake to use all reasonable efforts to rectify the situation to ensure a satisfactory outcome for both parties.
9.2 The Client has the right to terminate the Assignment by giving DBL not less than thirty days written notice.
9.3 If the Client terminates the Assignment under clause 9.2, cancellation fees as outlined in the specific proposal apply.
9.4 DBL will follow Ministry of Health guidelines in response to COVID-19 Alert Levels. If services are unable to proceed on a scheduled date due to group size limitations in the region the service is taking place, a postponement fee will not be charged. If services are postponed or cancelled by the Client for COVID-19 related reasons outside of the Ministry of Health guidelines, the cancellation fees as outlined in the specific proposal will apply.
9.5 DBL has the right to terminate this agreement where it becomes apparent to DBL that to serve the Client, DBL is likely to be subject to circumstances or conditions which may, in DBL’s opinion, impair or adversely affect the integrity, objectivity or independence or otherwise of DBL or put Deb Bailey in a position of conflict or prejudice. Under such circumstances, the non-refundable deposit (if any) is forfeited and retained by DBL. DBL may exercise her right to terminate this agreement under this clause by giving reasonable notice in writing to the Client.
10 CHANGE TO THE TERMS
10.1 Where either party wishes to vary the terms of an assignment, it shall inform the other party in writing of the proposed change.
10.2 Where change is desired by the Client, DBL shall inform the Client in writing of the amount by which it claims the fee should be increased or decreased as a result of the proposed change.
10.3 Within seven days of receiving a notice regarding a proposed change or consequent change in fee, the receiving party shall inform the other party in writing if it accepts or rejects the proposed change or consequent change in fee.
10.4 DBL reserves the right to vary its terms at any time. Any variations to the terms shall take effect from the time the varied terms are provided (including by email or in another electronic form) the Client.
11 JURISDICTION
11.1 The New Zealand courts shall have jurisdiction to determine any dispute and these terms and conditions shall be construed in accordance with New Zealand law.
12 NON-ASSIGNMENT
12.1 This Agreement shall not be assigned or transferred by either party without the prior written consent of the other party.
12.2 DBL shall not be entitled to sub-contract its obligations under this Agreement without the prior written consent of the Client.
13 ILLEGALITY AND SEVERANCE AND CONFLICT
13.1 Any provision of these terms which is held invalid or unenforceable in any jurisdiction shall be ineffective to the extent of such invalidity or unenforceability without invalidating or rendering unenforceable the remaining provisions hereof, and any such invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provisions in any other jurisdiction.
13.2 In the event of a conflict or inconsistency between these terms and any other contract, agreement or arrangement between the parties, these terms shall prevail.
14 CONSUMER GUARANTEES ACT AND FAIR TRADING ACT
14.1 For the purposes of section 43 of the CGA and section 5D of the FTA, if the services are being supplied by DBL and acquired by the Client in trade (as that term is defined in section 2 of the CGA), the parties agree that the provisions of the CGA and sections 9, 12A, 13 and 14(1) of the FTA have been contracted out of and do not apply to the Assignment.
15 NOTICES
Notices under this Agreement may be delivered by mail or email to the below addresses:
(a) Notices for Client may be delivered to the address contained in the proposal:
(b) Notices for Deb Bailey at DBL may be delivered to the following addresses:
PO Box 99-516, Newmarket, Auckland 1141
deb@deb-bailey.com
