Terms of Trade
Elevation Chartered Accountants Limited – Terms & Conditions of Trade
1.1 “Elevation” shall mean Elevation Chartered Accountants Limited, its successors and assigns or any person acting on behalf of and with the authority of Elevation Chartered Accountants Limited.
1.2 “Client” means the person/s or any person acting on behalf of and with the authority of the Client requesting Elevation to provide the Services as specified in any proposal, quotation, order, invoice or other documentation, and:
(a) if there is more than one Client, is a reference to each Client jointly and severally; and
(b) if the Client is a part of a Trust, shall be bound in their capacity as a trustee; and
(c) includes the Client’s executors, administrators, successors and permitted assigns.
1.3 “Consultant’ shall mean any person or persons engaged by Elevation to provide specialised work on behalf of the Client.
1.4 “Documentation” means any goods, documents, reports, drawings or materials supplied, consumed, created or deposited incidentally by Elevation in the course of it conducting, or providing to the Client, any Services.
1.5 “Services” mean all Services provided by Elevation to the Client at the Client’s request from time to time.
1.6 “Confidential Information” means information of a confidential nature whether oral, written or in electronic form including, but not limited to, this contract, either party’s intellectual property, operational information, know-how, trade secrets, financial and commercial affairs, contracts, client information (including but not limited to, “Personal Information” such as: name, address, D.O.B, occupation, driver’s license details, electronic contact (email, Facebook or Twitter details), medical insurance details or next of kin and other contact information (where applicable), previous credit applications, credit history) and pricing details.
1.7 “Cookies” means small files which are stored on a user’s computer. They are designed to hold a modest amount of data (including personal information) specific to a particular client and website, and can be accessed either by the web server or the client’s computer. If the Client does not wish to allow Cookies to operate in the background when using Elevation’s website, then the Client shall have the right to enable / disable the Cookies first by selecting the option to enable / disable provided on the website, prior to making enquiries via the website.
1.8 “Fee” means the Fee payable (plus any Goods and Services Tax (“GST”) where applicable) for the Services as agreed between Elevation and the Client in accordance with clause 6 of this contract.
2.1 The Client is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Client places an order for, or accepts Services provided by Elevation.
2.2 On completion of the Services Elevation will retain any documents for a period of seven (7) years after which the documents will be destroyed unless otherwise requested by the Client.
2.3 The Client acknowledges and accepts that Elevation reserves the right to charge accordingly for time involved in accordance with Elevation’s terms and conditions for all requests of verbal, email and/or written advice.
2.4 The Client acknowledges and accepts that Elevation will communicate electronically (email), unless otherwise instructed. The Client accepts this form of communication maybe subject to inherent hazards in electronic distribution and as such Elevation cannot warrant against delays or errors in transmitting data between the Client and Elevation, and you agree that to the maximum extent permitted by law, Elevation will not be liable for any losses which the Client suffers as a result of internet interruptions beyond Elevation’s control that may cause delays or errors in transmitting instructions and/or confirmations.
2.5 Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 226 of the Contract and Commercial Law Act 2017 or any other applicable provisions of that Act or any Regulations referred to in that Act.
2.6 Elevation may, acting solely as agent on behalf of the Client, obtain quotes and prices from third-party Consultants, and may subsequently engage such Consultants. Where Elevation engages third-party Consultants on behalf of the Client, the following shall apply:
(a) Elevation shall be entitled to enter into contracts with such Consultants in the name of the Client;
(b) the Client shall be responsible for all payments to such contractors;
(c) where Elevation makes payment of Elevation’s account on behalf of the Client, the Client shall reimburse Elevation for the payment of such account, together with an account-handling fee, as per Elevation’s specified payment terms.
2.7 Elevation does not warrant the accuracy or quality of the Consultant’s’ work, or warrant that the recommendations of the Consultants are appropriate or adequate, or are fit for their purpose, or that they are not given negligently. The Client agrees that they shall not make any demand on Elevation, or commence any legal proceedings against Elevation, and Elevation shall have no liability, whether in negligence or otherwise, to the Client in relation to any services performed by the Consultants.
3. Change in Control
3.1 The Client shall give Elevation not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client and/or any other change in the Client’s details (including but not limited to, changes in the Client’s name, address, contact phone or fax number/s, change of trustees or business practice). The Client shall be liable for any loss incurred by Elevation as a result of the Client’s failure to comply with this clause.
4. Authorised Representatives
4.1 Unless otherwise limited as per clause 4.2 the Client agrees that should the Client introduce any third party to Elevation as the Client’s duly authorised representative, that once introduced that person shall have the full authority of the Client to order any Services on the Client’s behalf and/or to request any variation to the Services on the Client’s behalf (such authority to continue until all requested Services have been completed or the Client otherwise notifies Elevation in writing that said person is no longer the Client’s duly authorised representative).
4.2 In the event that the Client’s duly authorised representative as per clause 4.1 is to have only limited authority to act on the Client’s behalf then the Client must specifically and clearly advise Elevation in writing of the parameters of the limited authority granted to their representative.
4.3 The Client specifically acknowledges and accepts that they will be solely liable to Elevation for all additional costs incurred by Elevation (including Elevation’s profit margin) in providing any Services or variation/s requested by the Client’s duly authorised representative (subject always to the limitations imposed under clause 4.2 (if any)).
5.1 The Services shall be as described in the Letter of Engagement provided by Elevation to the Client.
5.2 These terms and conditions are to be read in conjunction with Elevation’s Letter of Engagement. If there are any inconsistencies between the two documents then the terms and conditions contained therein shall prevail.
6. Client’s Obligations
6.1 The Client acknowledges:
(a) it is the Client’s responsibility to supply all necessary information in order for Elevation to provide the Services;
(b) that Elevation relies upon the information referred to in clause 6.1(a), and therefore, the Client will be responsible for the accuracy and completeness thereof;
(c) that the Services are not intended to, and accordingly will not result in, the expression by Elevation of an opinion on the Documentation insofar as third parties as concerned, or in the fulfilling of any statutory audit requirements;
(d) during the provision of the Services, Elevation will not be specifically investigating non-compliance with laws and regulations – however, should anything come to light of this nature during this process, Elevation will bring it to the Client’s attention;
(e) the Services are provided by Elevation for the Client’s own use, and to determine the Client’s taxation liabilities – if this should change in any material respect, the Client must inform Elevation immediately.
(f) Elevation will accept no responsibility to any person other than the Client for the contents of the Documentation;
(g) and agrees that Elevation is authorised to:
(i) communicate with the Client’s bankers, solicitors, finance companies and all government agencies to obtain such information as they require in order to provide the Services;
(ii) obtain information from the Inland Revenue concerning the Client’s tax affairs, and not limited to any one tax type, including Child Support. Information may be obtained by IRD website, phone, email or other mediums of communication.
7. Fee and Payment
7.1 At Elevation’s sole discretion, the Fee shall be either:
(a) as indicated on invoices provided by Elevation to the Client in respect of Services provided; or
(b) the Fee as at the date of delivery of the Services according to Elevation’s current rates; or
(c) Elevation’s quoted Fee (subject to clause 7.2) which shall be binding upon Elevation provided that the Client shall accept Elevation’s quotation in writing within thirty (30) days.
7.2 Elevation reserves the right to change the Fee in the event of a variation to Elevation’s quotation. Any variation from the plan of scheduled Services (including, but not limited to, any variation as a result of additional Services required at the expressed request of the Client via telephone and or email, or which require a higher than quoted level of preparation to complete the Services) will be charged for on the basis of Elevation’s quotation and will be shown as variations on the invoice. Payment for all variations must be made in full at their time of completion.
7.3 Elevation shall be reimbursed for all expenses reasonably and properly incurred in connection with the provision of the Services, except where such expenses are specifically stated in the Letter of Engagement, or in writing by Elevation, as being non-reimbursable. All reimbursable expenses (e.g. travel-call-outs, communications, couriers, etc.) will be charged at the cost involved (excluding GST) to Elevation, plus an administration fee of ten percent (10%) thereof.
7.4 At Elevation’s sole discretion, a deposit may be required on acceptance of Elevation’s quotation.
7.5 Time for payment for the Services being of the essence, the Fee will be payable by the Client on the date/s determined by Elevation, which may be:
(a) on completion of the Services;
(b) by way of instalments/progress payments in accordance with Elevation’s payment schedule;
(c) payment for approved Clients shall be due twenty (20) days following the end of the month in which a invoice is sent to the Client’s address or address for notices;
(d) the date specified on any invoice or other form as being the date for payment; or
(e) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Client by Elevation.
7.6 Payment will be made by cash, cheque, bank cheque, electronic/on-line banking, FeeSmart, credit card (a surcharge may apply per transaction) or by any other method as agreed to between the Client and Elevation.
7.7 The Client shall not be entitled to set off against or deduct from the Fee any sums owed or claimed to be owed to the Client by Elevation, nor to withhold payment of any invoice because part of that invoice is in dispute.
7.8 Unless otherwise stated the Fee is in New Zealand Dollars does not include GST. In addition to the Fee, the Client must pay to Elevation an amount equal to any GST Elevation must pay for any provision of Services by Elevation to the Client under this or any other agreement. The Client must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Client pays the Fee. In addition, the Client must pay any other taxes and duties that may be applicable in addition to the Fee, except where they are expressly included in the Fee.
7.9 Receipt by Elevation of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised and until then Elevation’s ownership or rights in respect of the Services, and this agreement, shall continue.
8. Provision of Services
8.1 Elevation shall exercise reasonable skill, care and diligence in the performance of the Services in accordance with the ethics of the Accounting/Bookkeeping profession.
8.2 Delivery of the Services to a third party nominated by the Client is deemed to be delivery to the Client for the purposes of this agreement.
8.3 Elevation may deliver the Services by separate instalments. Each separate instalment shall be invoiced and paid for in accordance with the provisions in these terms and conditions.
8.4 Any time specified by Elevation for provision of the Services is an estimate only and Elevation will not be liable for any loss or damage incurred by the Client as a result of any delay. However, both parties agree that they shall make every endeavour to enable the Services to be provided at the time and place as was arranged between both parties. In the event that Elevation is unable to provide the Services as agreed solely due to any action or inaction of the Client then Elevation shall be entitled to charge a reasonable fee for re-providing the Services at a later time and date.
9.1 Irrespective of whether Elevation retains ownership of any Documentation all risk for such items shall pass to the Client as soon as such items are delivered to the Client and shall remain with the Client until such time as Elevation may repossess the Documentation. The Client must insure all Documentation on or before delivery.
9.2 Elevation reserves its right to seek compensation or damages for any damage, destruction or loss suffered in relation to the Documentation as a result of the Client’s failure to insure in accordance with clause 9.1.
9.3 Elevation shall not be held liable for any loss, corruption, or deletion of files or data (including, but not limited to the unintended introduction of viruses) resulting from the Services provided by Elevation. It is the sole responsibility of the Client to back-up any data which they believe to be important, valuable, or irreplaceable prior to Elevation providing the Services.
10.1 Elevation and the Client agree that, where it is intended that the ownership of Documentation is to pass to the Client, that such ownership shall not pass until:
(a) the Client has paid Elevation all amounts owing for the Services; and
(b) the Client has met all other obligations due by the Client to Elevation in respect of all contracts between Elevation and the Client.
10.2 It is further agreed that:
(a) until such time as payment for the Services has been received in full Elevation may give notice in writing to the Client to return to Elevation any documentation provided to the Client as part of Elevation’s Services. Upon such notice being given the rights of the Client to obtain ownership or any other interest in the Services shall cease; and
(b) if the Client fails to return Documentation to Elevation (either by way of hardcopy or electronically) when requested, then such an action shall be deemed a breach of contract and no use of the Documentation is to be made by the Client to any third party in accordance with clause 14.
11. Errors and Omissions
11.1 The Client shall within thirty (30) days of provision of the Services notify Elevation of any alleged defect, shortage in quantity, errors, omissions or failure to comply with the description or quote. The Client shall afford Elevation an opportunity to review the Services within a reasonable time following such notification if the Client believes the Services are defective in any way. If the Client shall fail to comply with these provisions, the Services shall be conclusively presumed to be in accordance with the terms and conditions and free from any errors or omissions.
11.2 For defective Services, which Elevation has agreed in writing that the Client is entitled to reject, Elevation’s liability is limited to either (at Elevation’s discretion) replacing the Services or rectifying the Services provided that the Client has complied with the provisions of clause 11.1.
12. Consumer Guarantees Act 1993
12.1 If the Client is acquiring Services for the purposes of a trade or business, the Client acknowledges that the provisions of the Consumer Guarantees Act 1993 do not apply to the provision of Services by Elevation to the Client.
13. Use of Reports and Advice
13.1 Any advice that Elevation gives to the Client, its employees or agents is for the Client’s exclusive use and must be used only for the purpose described in the engagement.
13.2 Unless Elevation gives the Client prior written consent, the advice:
(a) must not be used or disclosed for any other purpose, referred to in any document or made available to any other person, except the Client’s lawyers or other professional advisor assisting in the Services; and
(b) may not be relied upon by any other party other than the Client.
13.3 Elevation is not responsible to any other party other than the Client, who is provided with or obtains a copy of Elevation’s advice.
13.4 Elevation’s advice may, on occasion, be given to the Client in draft form or orally only on the basis that the Client may not rely on advice in that form. Accordingly, Elevation shall not be responsible if the Client or any other party relies on the advice or chooses to act, or refrains from acting, on the basis of any draft advice or oral comments or advice.
13.5 The Client acknowledges that the signed copy of Elevation’s final advice is the definitive version.
13.6 Sometimes circumstances may change after Elevation has provided their final advice to the Client. If this happens Elevation will not update any final advice it has provided to the Client under these terms and conditions. If the Client would like Elevation to update their final advice, they must contact Elevation and both parties can discuss a suitable term of engagement with the Client.
13.7 The Client acknowledges and agrees that any expected or estimated outcomes concerning increased gains, growth and positive change by the Client derived from Elevation’s advice are speculative and based on Elevation’s experience, available data and information supplied by the Client and in no way constitute a guarantee.
14. Confidentiality / Intellectual Property
14.1 Both the Client and Elevation agree to treat all information and ideas communicated to it by the other confidentially and agree not to divulge them to any third party (including, but not limited to the information being copied, disseminated or otherwise distributed) without the other party’s written consent. The parties will not copy any such information supplied, and will either return it or destroy it (together with any copies thereof) on request of the other party.
14.2 Exceptions to clause 14.1 will be disclosures to legal advisers, disclosures required by law, and disclosures necessary for the proper performance of the Services.
14.3 Where Elevation has developed software, spreadsheets, training materials, databases, proposals and other electronic tools in providing the Services to the Client, then the copyright in those software, spreadsheets, training materials, databases, proposals, tender documents and other electronic tools shall remain vested in Elevation, and shall only be used by the Client at Elevation’s discretion.
14.4 The Client warrants that any software, spreadsheets, training manuals, databases, other electronic tools or instructions provided by the Client to Elevation will not cause Elevation to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify Elevation against any action taken by a third party against Elevation in respect of any such infringement.
14.5 The Client acknowledges that any software / online services provided by Elevation belong to the publishers and the Client is granted a licence to use the software / online services. The Client gives Elevation the right to access the software / online services using the Client’s and/or administration login for the purposes of completing the Services, complying with IRD instructions or in the case of non-payment to restrict or block the Client’s access to the software / online services.
14.6 Whether Elevation or the Client retains the copyright in relation to original work which is specifically developed for the Client shall be as is agreed, recorded in writing, and signed by both parties to this agreement.
15. Default and Consequences Of Default
15.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and one half percent (2.5%) per calendar month (and at Elevation’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
15.2 If the Client owes Elevation any money the Client shall indemnify Elevation from and against all costs and disbursements incurred by Elevation in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, Elevation’s collection agency costs, and bank dishonour fees).
15.3 Further to any other rights or remedies Elevation may have under this contract, if a Client has made payment to Elevation by and the transaction is subsequently reversed, the Client shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by Elevation under this clause 15, where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Client’s obligations under this agreement.
15.4 Without prejudice to Elevation’s other remedies at law Elevation shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to Elevation shall, whether or not due for payment, become immediately payable in the event that:
(a) any money payable to Elevation becomes overdue, or in Elevation’s opinion the Client will be unable to meet its payments as they fall due; or
(b) the Client becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.
16.1 Without prejudice to any other remedies Elevation may have, if at any time the Client is in breach of any obligation (including those relating to payment), Elevation may suspend or terminate the provision of Services to the Client and any of its other obligations under the terms and conditions. Elevation will not be liable to the Client for any loss or damage the Client suffers because Elevation has exercised its rights under this clause.
16.2 The Client may terminate the contract at any time by providing thirty (30) days written notice to Elevation. As soon as this notice is received, Elevation shall stop providing the Services. Termination of the contract shall not prejudice, or affect, the accrued rights, claims and/or liabilities of either party to the contract.
16.3 If the Client terminates the contract, or Elevation terminates the contract because the Client is in material breach thereof (and fails to remedy such breach within seven (7) days of Elevation giving notice to the Client of such breach), then the Client shall be liable to pay Elevation for all Services provided up until the date of termination, plus any disbursements and all loss incurred (whether direct or indirect) by Elevation as a direct result of termination by the Client (including, but not limited to, any loss of profits).
17.1 All emails, documents, images or other recorded information held or used by Elevation is Personal Information as defined and referred to in clause 17.3 and therefore considered confidential. Elevation acknowledges its obligation in relation to the handling, use, disclosure and processing of Personal Information pursuant to the Privacy Act 2020 (“the Act”) including Part II of the OECD Guidelines and as set out in Schedule 8 of the Act and any statutory requirements where relevant in a European Economic Area “EEA” under the EU Data Privacy Laws (including the General Data Protection Regulation “GDPR”) (collectively, “EU Data Privacy Laws”). Elevation acknowledges that in the event it becomes aware of any data breaches and/or disclosure of the Client’s Personal Information, held by Elevation that may result in serious harm to the Client, Elevation will notify the Client in accordance with the Act and/or the GDPR. Any release of such personal information must be in accordance with the Act and the GDPR (where relevant) and must be approved by the Client by written consent, unless subject to an operation of law.
17.2 Notwithstanding clause 17.1, privacy limitations will extend to Elevation in respect of Cookies where the Client utilises Elevation’s website to make enquiries. Elevation agrees to display reference to such Cookies and/or similar tracking technologies, such as pixels and web beacons (if applicable), such technology allows the collection of Personal Information such as the Client’s:
(a) IP address, browser, email client type and other similar details;
(b) tracking website usage and traffic; and
(c) reports are available to Elevation when Elevation sends an email to the Client, so Elevation may collect and review that information (“collectively Personal Information”)
17.3 The Client authorises Elevation or Elevation’s agent to:
(a) access, collect, retain and use any information about the Client;
(i) (including, name, address, D.O.B, occupation, driver’s license details, electronic contact (email, Facebook or Twitter details), medical insurance details or next of kin and other contact information (where applicable), previous credit applications, credit history or any overdue fines balance information held by the Ministry of Justice) for the purpose of assessing the Client’s creditworthiness; or
(ii) for the purpose of marketing products and services to the Client.
(b) disclose information about the Client, whether collected by Elevation from the Client directly or obtained by Elevation from any other source, to any other credit provider or any credit reporting agency for the purposes of providing or obtaining a credit reference, debt collection or notifying a default by the Client.
17.4 Where the Client is an individual the authorities under clause 17.3 are authorities or consents for the purposes of the Privacy Act 2020.
17.5 The Client shall have the right to request (by e-mail) from Elevation, a copy of the Personal Information about the Client retained by Elevation and the right to request that Elevation correct any incorrect Personal Information.
17.6 Elevation will destroy Personal Information upon the Client’s request (by e-mail) or if it is no longer required unless it is required in order to fulfil the obligations of this contract or is required to be maintained and/or stored in accordance with the law.
17.7 The Client can make a privacy complaint by contacting Elevation via e-mail. Elevation will respond to that complaint within seven (7) days of receipt and will take all reasonable steps to make a decision as to the complaint within twenty (20) days of receipt of the complaint. In the event that the Client is not satisfied with the resolution provided, the Client can make a complaint to the Information Commissioner at http://www.privacy.org.nz/comply/comptop.html.
18. Personal Property Securities Act 1999 (“PPSA”)
18.1 In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.
18.2 Upon assenting to these terms and conditions in writing the Client acknowledges and agrees that these terms and conditions constitute a security agreement for the purposes of the PPSA and creates a security interest in:
(a) all Incidental Items previously supplied by Elevation to the Client;
(b) all Incidental Items will be supplied in the future by Elevation to the Client; and
(c) all the Client’s present and after acquired property being a charge, including anything in respect of which the Client has at any time a sufficient right, interest or power to grant a security interest in for the purposes of securing repayment of all monetary obligations of the Client to Elevation for Services – that have previously been provided and that will be provided in the future by Elevation to the Client.
18.3 The Client undertakes to:
(a) sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which Elevation may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register;
(b) indemnify, and upon demand reimburse, Elevation for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register or releasing any registration made thereby;
(c) not register a financing change statement or a change demand without the prior written consent of Elevation.
18.4 Elevation and the Client agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms and conditions.
18.5 The Client waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA.
18.6 Unless otherwise agreed to in writing by Elevation, the Client waives its right to receive a verification statement in accordance with section 148 of the PPSA.
18.7 The Client shall unconditionally ratify any actions taken by Elevation under clauses 18.1 to 18.6.
19.1 Where the Client has left any of the Client’s documentation with Elevation for Elevation to provide any Services in relation to that documentation and Elevation has not received or been tendered the whole of the Fee, or the payment has been dishonoured, Elevation shall have:
(a) a lien on the documentation; and
(b) the right to retain the documentation whilst Elevation is in possession of the documentation until such time as payment has been made in full; and
(c) the lien of Elevation shall continue despite the commencement of proceedings, or judgment for the Fee having been obtained; and
(d) Elevation shall be under no obligation to release the documentation to the Client if the Client is in default of payment except as may be required by any law or statute.
20. Service of Notices
20.1 Any written notice given under this contract shall be deemed to have been given and received:
(a) by handing the notice to the other party, in person;
(b) by leaving it at the address of the other party as stated in this contract;
(c) by sending it by registered post to the address of the other party as stated in this contract;
(d) if sent by facsimile transmission to the fax number of the other party as stated in this contract (if any), on receipt of confirmation of the transmission;
(e) if sent by email to the other party’s last known email address.
20.2 Any notice that is posted shall be deemed to have been served, unless the contrary is shown, at the time when by the ordinary course of post, the notice would have been delivered.
21. Liability Limitations
21.1 In the event of any breach of this contract by us the remedies available to you shall be limited to damages. Under no circumstances shall the liability for Elevation exceed the lesser of five (5) times the value of the fees or the sum of one hundred thousand dollars ($100,000) or (alternatively Elevation’s liability shall be limited to damages which under no circumstances shall exceed our Professional Indemnity Insurance in place).
21.2 The Client agrees to indemnify Elevation, its partners, associates, employees, contractors and any other person who may be sought to be made liable in excess of the limit of liability described in clause Error! Reference source not found. in respect off any activity arising from or connected with these terms in respect of any claim of whatever kind, including negligence, that may be made by any person and any costs and expenses that may be incurred by Elevation.
22.1 If the Client at any time upon or subsequent to entering in to the contract is acting in the capacity of trustee of any trust (“Trust”) then whether or not Elevation may have notice of the Trust, the Client covenants with Elevation as follows:
(a) the contract extends to all rights of indemnity which the Client now or subsequently may have against the Trust and the trust fund;
(b) the Client has full and complete power and authority under the Trust to enter into the contract and the provisions of the Trust do not purport to exclude or take away the right of indemnity of the Client against the Trust or the trust fund. The Client will not release the right of indemnity or commit any breach of trust or be a party to any other action which might prejudice that right of indemnity.
(c) The Client will not without consent in writing of Elevation (Elevation will not unreasonably withhold consent), cause, permit, or suffer to happen any of the following events;
(i) the removal, replacement or retirement of the Client as trustee of the Trust;
(ii) any alteration to or variation of the terms of the Trust;
(iii) any advancement or distribution of capital of the Trust; or
(iv) any resettlement of the trust property.
23.1 The failure by either party to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect that party’s right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
23.2 These terms and conditions and any contract to which they apply shall be governed by the laws of New Zealand and are subject to the jurisdiction of the Tauranga Court of New Zealand.
23.3 Elevation may licence and/or assign all or any part of its rights and/or obligations under this contract without the Client’s consent.
23.4 The Client cannot licence or assign without the written approval of Elevation.
23.5 Elevation may elect to subcontract out any part of the Services but shall not be relieved from any liability or obligation under this contract by so doing. Furthermore, the Client agrees and understands that they have no authority to give any instruction to any of Elevation’s sub-contractors without the authority of Elevation.
23.6 The Client agrees that Elevation may amend these terms and conditions by notifying the Client in writing. These changes shall be deemed to take effect from the date on which the Client accepts such changes, or otherwise at such time as the Client makes a further request for Elevation to provide Services to the Client.
23.7 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, drought, storm or other event beyond the reasonable control of either party.
23.8 Both parties warrant that they have the power to enter into this agreement and have obtained all necessary authorisations to allow them to do so, they are not insolvent and that this agreement creates binding and valid legal obligations on them.