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TERMS AND CONDITIONS

TERMS AND CONDITIONS FOR PROFESSIONAL SERVICES

The Tree Consultancy Company (“TTCC”) and the Client (as described in the Fee Proposal) agree that any professional services, including subsequent services and charges (collectively the Services), to be provided by TTCC relating to the Proposal will be on the following Terms and Conditions. Collectively the Proposal and the following Terms and Conditions form the Agreement  between the Client and TTCC. The Client and TTCC agree that the Services are acquired for the purposes of business and that the provisions of the Consumer Guarantees Act 1993 shall not apply.

1. Standard of Care–TTCC shall provide the Services with such skill, care and diligence as is ordinarily exercised by consultants in similar circumstances at the time the Services are provided. TTCC shall provide the Client the opportunity to provide feedback regarding the provision of the Services at any time.

2. Right of Entry, Permits, Site Information and Utilities–The Client shall obtain all necessary permissions and licenses and provide right of entry for TTCC and its subcontractors to carry out the Services. The Client (at its own cost) shall provideto TTCC in advance all relevant and necessary information, documents and other particulars concerning the provision of the Services including but not limited to any on-site hazardous materials and underground utilities. TTCC may rely on such information.

3. Safety–TTCC shall be responsible only for its activities andthat of its employees and subcontractors and nothing shall imply that TTCC has any responsibility for job site safety which is the responsibility of the Client or its agents or contractors, under the Health and Safety at Work Act 2015 or otherwise. The client shall provide in advance any environmental, health, or safety policies or procedures it requires TTCC to abide by during provision of the Services. If no policies or procedures are provided, TTCC shall abide by its ownpolicies and procedures in the provision of the Services. If in TTCC’s reasonable opinion it is unsafe to continue, TTCC may suspend the Services without penalty until the unsafe condition is rectified. At no time shall TTCC be deemed to be in control of the project site unless by prior written agreement in connection with specific Services.

4. Payment–The Client shall pay to TTCC the Fees and Expenses as set out in the Proposal without set offor deduction. Where this Agreement has been entered into or authorised by an Agent (or a person purporting to act as an Agent) on behalf of the Client, the Agent and the Client shall be jointly and severally liable for payment of all accounts due to TTCC under this Agreement. All monies payable by the Client to TTCC shall be paid on or by the 20thof the month following the month of the date of the invoice. Monies not paid within that period shall attract interest from the date of the invoice until payment ata rate of 5% per month, plus debt collection fees where applicable. The Client shall notify TTCC within ten (10) days of receipt of anyinvoice of any dispute with the invoice andthe parties will promptly meet to resolve the dispute. Unless such notification is received by TTCC, the Client agrees the invoice will be deemed valid and payment is due under the terms ofthis Clause.

5. Rates–The hourly rates set out in the Proposal are applicable for 6months after acceptance of the Proposal or the duration of the Services, whichever is lesser. Thereafter the Rates shall be reviewed and adjusted with respect tomarket conditions.

6. Limitation of Liability–To the maximum extent permitted by law:

(a) Subject to paragraphs (b), (c) and (d) below, the liability of TTCC, its employees, officers and directors arising out of theperformance or non-performance of the Services, whether under law of contract, tort or otherwise, shall be limited in aggregate to the cost of rectifying the works the subject of the Services, or the amount of $NZ500,000, whichever is the lesser.

(b) TTCC shall not be liable for any damage or consequential costs caused by incomplete or inaccurate information provided by the Client. TTCC shall not under any condition be liable to the Client in respect to any indirect, consequential or special losses (including loss of profit, loss of business opportunity and payment of liquidated sums or damages under any other agreement).

(c) TTCC will be deemed discharged from all liability in respect of the services, whether under the law of contract, tort, or otherwise, on the expiration of one (1) year from the completion of the Services, the date of invoice in respect of the final amount claimed by TTCC pursuant to Clause 5, or the termination of this Agreement, whichever is earliest. The Client shall not be entitled to commence any action or claim whatsoever against TTCC or any employee, agent or sub-consultant of TTCC in respect of the Services after that date.

(d) Each party shall be found liable to the other (whether in contract, tort, or otherwise) for loss only to the extent directly attributable to the proportion of its contribution to that loss.

(e) The provisions of Clause 7 are subject to the provisions of any law which cannot be excluded, restricted or modified by agreement.

7. Ownership and Use of Work Product–Intellectual property and copyright in all drawings, reports, specifications, bills of quantity, calculations, software, and other documents (“{work product”) provided by TTCC in the provision of the Services shall remain the property of TTCC. Subject to the Client complying with its obligations under this Agreement, and to the following conditions. TTCC grants to the Client a nonexclusive, non-transferable license to use the work product for the purposes described in the Proposal. The Client shall not use, or make copies of, such work product in connection with any work not included in the Proposal without prior written consent from TTCC.If the Client is in breach of any obligation to make a payment to TTCC, TTCC may revoke the license to use the work product and the Client shall return to TTCC all originals and copies of work product provided under the Services.

8. Third Party Reliance–Unless expressly agreed by TTCC, no third party may rely upon any work product provided under this Agreement. The Client indemnifies, defends, and holds harmless TTCC from any unlicensed use of or reliance on said work product.

9. Confidentiality–Neither the Client nor TTCC shall disclose to third parties or use of any purpose (other than providing or benefiting from the Services) any information provided by the other unless required to do so by law, or the information is already available to the public, or the other consents to the disclosure.

10. Dispute –Any dispute between the Client and TTCC shall be notified in writing by the aggrieved party to the other with 7 days of the onset of the dispute. It shall be handled as follows:

(a) Within 7 days of notification, the parties and their principals shall meet in good faith, without legal representation, in an attempt to resolve the dispute.

(b) If the dispute is not resolved, it shall be the subject of mediation, administered in accordance with procedures as set out by the Institute of Arbitrators and Mediators New Zealand. The dispute shall be adjudicated and mediated in that city from which the Proposal that is the subject of this Agreement originated. The mediator shall be appointed by the President of that State Chapter of the Institute of Arbitrators and Mediators New Zealand.

(c) The costs of the mediation shall be borne equally by the parties to the dispute.

(d) Any dispute not able to be resolved by mediation may then be the subject of legal action, at which time this provision shall not prevent either party from pursuing all other remedies.

(e) Notwithstanding the subject of the dispute, the parties agree to continue to perform all other obligations under this agreement.

11. Termination–Either party may terminate its obligations under this Agreement. In the event of a substantial breach by the other party of its obligations and the breach has not been remedied within 30 days of a written notice requiring the breach to be remedied; OR upon giving the other party 30 days’ written notice of its intention to do so. TTCC may suspend or terminate its obligations under this Agreement in the event of monies payable to TTCC for the Services being outstanding for more than 30 days.

12. Assignment–Neither party and their respective successors may assign, transfer, or sublet any obligation under this “Agreement without the prior written consent of the other party. Unless stated in writing to the contrary, no assignment, transfer, novation or sublet shall release the assignor from any obligation under this Agreement.

13. Sub Consultants–If TTCC considers it appropriate to do so, it may, with the Client’s prior written approval, engage another consultant to assist TTCC in provision of the Services. Such written permission from the Client cannot be unreasonably withheld. TTCC will be fully responsible to the Client for the Services and work done by all of its subconsultants and subcontractors. TTCC may retain subconsultants who may be affiliated with TTCC to provide Services for the benefit of TTCC. The Client agrees that it will only assert claims against and seek to recover losses, damages or other liabilities from TTCC and not TTCC affiliated companies. The maximum extent allowed by law, the Client acknowledges and agrees it will not have any legal recourse, and waives any expense, loss, claim, demand, or cause of action, against Consultant’s affiliated companies, and their employees, officers and directors.

14. Miscellaneous –

(a) This Agreement shall be subject to the laws of New Zealand and the parties irrevocably agree to the jurisdiction of competent courts there.

(b) This Agreement is the entire Agreement between the parties for the provision of the Services in the Proposal and supersedes all previous agreements, representations, correspondence, and discussions in connection with the Services. If any Clause of this Agreement is found to be inoperable due to illegality, such clause is severed from the Agreement and the rest of the Agreement remains in force.

(c) Nothing in this Agreement, nor in the performance of the Services, shall be construed as creating a relationship of agency, partnership, or other relationship other than that of Client and Consultant between the parties.