1.  TERMS OF TRADE

1.1 The following terms (Terms) will apply in respect of the provision of any services by Electrical Estimating Services Limited (we, us, our) to any client who uses our services (you, your) to provide a bill of materials (BoM) for a specific project (Project).

1.2 If there is any inconsistency between a provision of these Terms and any provision in any other written agreement between us and you, the provisions will apply in the following descending order of priority:

(a)  the provisions in any written agreement between the us and you; and

(b)  these Terms, provided that these Terms will prevail over any other terms and conditions stipulated by you or included as part of any of your documentation unless such other terms are expressly acknowledged and agreed to in writing by us.

1.3 We may amend these Terms at any time. The amended Terms will apply in respect of any Services that are carried out by us following the date the amended Terms are notified to you.

2.  PROPOSALS AND CONTRACTING

2.1 You may request us to provide a pricing proposal for a specific Project by submitting the Project documents to us.

2.2 You must provide accurate and complete information regarding the Project, including plans, specifications, and any other relevant details.

2.3 We will respond to your request with a pricing proposal to deliver a BoM for the Project (Proposal) to you. We may advise you that you have the option of exclusivity. Exclusivity is only available if we have not provided a Proposal to provide a BoM for the same Project to another client before you accept our Proposal.

2.4 If the Proposal is not exclusive, and we provide a BoM for the same Project to another client, we will pay you a rebate of 33% of the Price.

2.5 If you accept our Proposal and pay the deposit in accordance with clause 3.2(a), a binding contract will be formed for us to deliver a BoM to you for the Project in consideration for you paying the Price.

2.6 When we have completed the BoM and you have paid the Price in accordance with clause 3.2, we will provide you with an online link to download the BoM (or deliver the BoM by such other method as specified by us).

3.  PRICE AND PAYMENT

3.1 The price payable for the Services supplied by us to you (Price) will be the price quoted by us in the Proposal.

3.2 Unless otherwise agreed by the parties, you must pay:

(a)  a deposit of 50% of the Price before we start work; and

(b)  the balance of the Price before we deliver the BoM and no later than 5 working days after we notify you that the BoM is ready and available to be downloaded by you (Due Date).

3.3 All amounts quoted by us will be deemed to exclude GST. GST will be payable by you at the same time as the Price and in addition to the Price.

3.4 If you fail to pay any amount due to us on or before the Due Date, we may charge interest on overdue amounts from the date payment falls due to the date of payment at the interest rate of our overdraft plus 10% and recover the costs incurred by us to recover the debt.

3.5 We may amend the Price in a Proposal at any time prior to acceptance by you.

4.  NO WARRANTIES

4.1 We are not responsible for errors or omissions arising from incomplete or inaccurate information supplied by you.

4.2 The BoM is based solely on the information provided and does not account for unforeseen project specific variables, site conditions, regulatory changes, or other factors outside our knowledge or control including your business practices.

4.3 Except as expressly set out in writing by us in respect of any Services, we exclude all representations and warranties (whether express or implied) in relation to any Services to the extent permitted by law. The Services are being provided for the purposes of a business so the provisions of the Consumer Guarantees Act 1993 do not apply.

4.4 You acknowledge that you are not relying on our skill or judgment as to the suitability or otherwise of the Services for any purpose other than pricing the Project.

5.  INDEMNITY AND LIMITATION OF LIABILITY

5.1 You will indemnify us at all times against any loss, damage or costs suffered or incurred by us as a direct or indirect result of a breach by you of any of your obligations under these Terms (including without limitation all dishonour fees, debt collection, collection agency costs and legal costs on a solicitor/client basis).

5.2 Notwithstanding any contrary provision contained in these Terms or elsewhere, our maximum liability to you under or in connection with these Terms or in relation to any Services will be limited at our sole option to:

(a)  re-performing the relevant Services; or

(b)  the refund of the Price actually paid by you for the Services in respect of which any claim is made.

5.3 Nothing expressed or implied in these Terms will confer any liability on us for any consequential, indirect or special loss, damage, cost or expense suffered or incurred by you as a direct or indirect result of our breach of any of our obligations under these Terms.

6.  CONFIDENTIALITY AND DATA SECURITY

6.1 We undertake to:

(a)  keep Project information and information that we hold about you (Client Data) confidential;

(b)  store your Client Data separately from our own data and other client’s data;

(c)  use your Client Data only to deliver the Services to you;

(d)  not disclose Client Data to any third party except our employees and contractors who have entered into binding agreements with us that contain on-disclosure obligations equivalent to those set forth in these Terms;

(e)  take commercially reasonable steps to ensure that our data systems are secure.

7.  INTELLECTUAL PROPERTY

7.1 You acknowledge that all intellectual property (including any pre-existing intellectual property) prepared or created by us in carrying out the Services and provided to you as a deliverable (including any BoM) (Intellectual Property) will be owned by us. We grant you a non-exclusive royalty-free license to use the Intellectual Property in the BoM solely for the project for which the BoM was prepared.

7.2 You agree that you will not disclose to any person, use for yourself, or use to our detriment a copy of the BoM or any Intellectual Property which you obtain during or incidental to the performance of Services, except to the extent permitted by us. Without limiting the effect of this clause, you may only disclose the BoM and any Intellectual Property to your officers, employees or professional advisers, on a “need to know” basis. Your rights in relation to the BoM and any Intellectual Property are conditional upon you having paid all amounts due and owing to us in accordance with clause 3.

7.3 You will defend and indemnify us (and our directors, employees and agents) against any cost (including legal fees) or expense arising from any claim, suit, action or proceeding that the use of any materials supplied by you under these Terms infringes a third party’s intellectual property rights.

8.  CANCELLATION OR SUSPENSION

8.1 Notwithstanding any other provision set out in these Terms, we reserve the right to refuse to provide a Proposal to you and to cancel or suspend the provision of any Services to you in our sole discretion at any time and without liability to you.

8.2 You acknowledge that upon your acceptance of any Proposal, you will be bound by that Proposal and will not be entitled to terminate, rescind or cancel the resulting contract without our prior written consent.

9.  GENERAL

9.1 These Terms are governed by the laws of New Zealand and the parties submit to the exclusive jurisdiction of the New Zealand courts in respect of all matters relating to these Terms.

9.2 We and you acknowledge that these Terms, and any other agreement agreed in writing between the parties, contain the entire understanding and agreement between them and that there have been no representations made by either party to the other except as expressed in these Terms.

9.3 If any provision of these Terms is found to be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions will not be affected.

9.4 You may not assign, subcontract or hold on trust for any third party any of your rights under these Terms without our prior written consent. If you are subject to a change of control, that change will be deemed to be an assignment for the purposes of this clause.

9.5 If you, as the client, is comprised of two or more persons, all of those persons will be jointly and severally liable for the payment of all amounts owing by you to us.