Terms and Conditions of Trade for the provision of Asbestos Management Surveys by JC Consultants Limited
1. Parties and Definitions to this Contract
1.1. “ACM” means asbestos containing material.
1.2. "JC Consultants” or “us” means JC Consultants Limited, its successors and assignors, or any person acting on behalf of, and with the authority of JC Consultants Limited.
1.3. “Client” or “you” means the person/persons purchasing the Services, as specified in any quotation, order, invoice or other document, and if there is more than one Client is a reference to each Client jointly and severally.
1.4. “Contract” means the contract formed between JC Consultants Limited and the client as detailed in clause 2.
1.5. “Expenses” means any third party payments, to which JC Consultants will be entitled to add a margin of 15%.
1.6. “Price” means the price payable for the Services, as agreed between JC Consultants and the Client pursuant to booking communications or quotation.
1.7. “Services” means all services as supplied by JC Consultants to the Client at the Client’s request from time to time.
1.8. “Survey” means the Asbestos Management Survey and asbestos sampling as applicable.
2. Acceptance of Terms and Conditions of Trade
2.1. Any engagement of JC Consultants’ Services shall constitute acceptance of the Terms and Conditions of Trade of JC Consultants by the Client.
2.2. The Terms and Conditions of this contract can be amended by JC Consultants with agreement with the client and providing the amending terms to the Client and such amended terms shall be binding on the Client.
2.3. In the event that the Client proposes any change to the structure of the Client’s business, a change in shareholding, company name, directors, premises, postal address, registered office or sale of the business, the Client shall give no less than fourteen (14) days’ written notice of the proposed change or changes. If any loss is incurred by JC Consultants, the Client shall be liable for any loss suffered by JC Consultants due to the Client not complying with this provision.
3. Services
3.1. These Terms and Conditions govern the supply of all Services provided by JC Consultants and will form the basis of the Contract between the Client and JC Consultants.
3.2. The Services provided shall be as described in these terms of trade, as well as JC Consultants’ invoices, quotation, or any other such form as provided by JC Consultants to the Client.
3.3. Services will be provided in a timely and professional manner and in accordance with any agreed timeframes.
4. Asbestos Management Survey
4.1. The purpose of the Survey is to help systematically identify all asbestos and ACM in the Client’s building/premises.
4.2. Surveying is completed using visual methods and may involve sampling of suspected asbestos or ACM. It can also involve some minor intrusive work, such as accessing behind fascia, panels and other surfaces or superficial materials.
4.3. The Survey may involve the use of simple tools like screwdrivers and chisels. Any areas not accessible and which are likely to contain asbestos or ACM will be assumed to contain asbestos.
4.4. The Survey will indicate the presence, location and condition of asbestos and ACM, carry out a suitable risk assessment, and where agreed develop an Asbestos Management Plan in conjunction with the Client. The Survey will aim to:
4.4.1. Find and record the location of any assumed or known asbestos and ACM.
4.4.2 To inspect and record information on the accessibility, condition, and surface treatment of any assumed or known asbestos and ACM.
4.4.3. To determine and record the asbestos type, either by collecting representative samples of suspect materials for laboratory identification, or by making an assumption based on the product type and its appearance, etc.
4.5 Survey findings will be presented in the form of a report.
5. Scope of Survey
5.1. The Survey is completed using visual methods and sampling. Using such methods, it can be determined whether it is appropriate to assume material containing asbestos is present.
5.2. JC Consultants will only assume materials in a building are asbestos free where there are reasonable grounds to believe they do not contain asbestos. There are obvious materials which do not contain asbestos (e.g. wood, glass, metal and stone). However, there may be asbestos present inside parts of the building which cannot be accessed.
5.3. Reasons to conclude that a material does not contain asbestos are:
· Non-asbestos substitute materials were specified in the original architect’s or quantity surveyor’s plans, or in subsequent refurbishments; or
· The product is very unlikely to contain asbestos or have had asbestos added.
5.4. The inspection will include an assessment of the asbestos and ACM’s condition and its ability to release fibres.
5.5. Where it is suspected asbestos is present, JC Consultants will recommend samples are taken to positively identify the location and extent of asbestos or ACM. The only way to confirm if a material does contain asbestos is to conduct a test on a sample of the material at an accredited laboratory.
6. Client Obligations
6.1. JC Consultants will need to plan the Survey based on the extent and complexity of the building. Before the Survey, the Client must provide all relevant information relating to the building including:
· Details of the buildings, or parts of buildings to be surveyed.
· Any plans, reports and surveys on the building’s design, structure, and construction.
· Safety and security information, such as fire alarm testing, special clothing areas, security alarm information.
· Access arrangements and permits.
· Contacts for operational or health and safety issues.
· Other items as requested by JC Consultants, depending on the specific type and use of building.
6.2. The Client will ensure that JC Consultants has reasonable access to all areas of the building to conduct the Survey. This includes roof cavity and foundation spaces which, if they exist, must be cleared for a survey to be carried out. Areas could include:
· Under floor coverings
· Above false ceilings (ceiling voids)
· Lofts
· Inside risers
· Service ducts and lift shafts
· Basements
· Cellars
· Underground rooms.
“Reasonable access” in this clause means access that is safe, unobstructed and which has the minimum clearance specified below (or if the minimum clearance is not available, the area is within the surveyor’s unobstructed line of vision).
Roof space
450 x 400mm manhole access
600 x 600 crawl space
Accessible by a 3.6m ladder**
Subfloor
500 x 4mm manhole access
Timber floor - 400mm vertical clearance crawl space*
Concrete floor – 500mm vertical clearance crawl space
Roof exterior
Viewed from either a 2.0m A frame ladder or a 3.6 m ladder**
* Underside of the bearer
** or such other means of access that meet HSW Act requirements.
6.3. Health and Safety: It is the Client’s responsibility to ensure that all safety measures have been taken at the site where the Services are to be performed so as to comply with all applicable health and safety laws. JC Consultants have not and will not at any time assume any obligations as the Client’s agent or otherwise which may be imposed on the Client from time to time pursuant to the Health & Safety at Work Act 2015, including any subsequent regulations (the “HSW Act”) arising from the engagement of Services under this Agreement. Unless otherwise agreed, the parties agree that for the purposes of the HSW Act, JC Consultants will not be the person who controls the place of work. Prior to JC Consultants’ personnel attending the relevant site to perform the Services the Client will:
· Inform us of all applicable health and safety rules and regulations that may apply at the site;
· Notify us promptly of any risk, safety issues or incidents that may arise or may have arisen at the site that are relevant to our provision of the Services.
Right to delay or cancel: If we are concerned about the presence of any hazards or risks at the site we may, in our absolute discretion, delay the performance of some or all of the Services or cancel any order by notice in writing to the Client.
7. Payment Terms
7.1. Payment is to be made as follows:
7.1.1. JC Consultants will invoice the Client in advance for work to be completed. In the event further work is required the Client will be notified and an additional Price will be charged.
7.1.2. Payment is due prior to the survey being undertaken and report released.
7.2. Payments will be by direct credit to JC Consultants’ nominated account.
8. Default and Consequences of Non-Payment
8.1. If the Client defaults in payment of any invoice when due, the Client shall pay all costs and disbursements incurred by JC Consultants in pursuing the debt including legal costs and collection agency costs.
8.2. Interest on overdue or unpaid invoices shall accrue from the date when payment becomes due daily until the date payment is received at a rate of 15% per calendar month and all interest shall compound monthly before and after any judgment until payment is received in full.
8.3. JC Consultants at its discretion may suspend or terminate the supply of Services should the Client, at any time be in breach of any obligation to JC Consultants (including those relating to payment). JC Consultants will not be liable for any loss or damages the Client has deemed to have suffered because JC Consultants has exercised their rights under this clause.
8.4. Without prejudice to JC Consultants’ other remedies at law, JC Consultants shall be entitled to cancel all or any part of any Contract with the Client which remains unfulfilled and all amounts owing to JC Consultants shall, whether or not due for payment, become immediately payable in the event that:
8.1.1. Any money payable to JC Consultants becomes overdue for payment, or in JC Consultants’ opinion the Client will be unable to meet its payments as they become due; or
8.1.2. 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
8.1.3. A receiver, liquidator, manager (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.
9. Right of Cancellation
9.1. If the Client cancels this contract, in consideration for JC Consultants arranging a time for the Survey, the Client will pay JC Consultants a cancellation fee equal to the Price, provided however that JC Consultants have received 24 hours (one full working day) written notice of cancellation, no fee will be payable.
10. Liability
10.1. Consumer Guarantees Act: 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 supply of Services by JC Consultants to the Client.
10.2. JC Consultants will have no responsibility or liability for any losses, costs or damages arising from:
10.2.1. Any errors or omissions from information, data or documents not prepared by JC Consultants, its employees, or other persons under its direct control;
10.2.2. any act or omission, lack of performance, negligent or fraudulent act by the Client;
10.2.3. any act or omission, lack of performance, negligence or fraud by any consultant, contractor or supplier to the client, or any of the Client’s employees or agents.
10.3. JC Consultants shall be under no liability whatsoever to the Client for any indirect loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by JC Consultants of this Contract.
10.4. In the event of any breach of this Contract by JC Consultants the remedies of the Client shall be limited to damages of five times the Price (excluding Expenses), or $500,000, whichever is the lesser amount.
11. Intellectual Property
11.1. Where JC Consultants has supplied Services for the Client using JC Consultants’ intellectual property, then the intellectual property in those Services shall remain vested in JC Consultants, and neither these Terms and Conditions of Trade nor the Client’s use of JC Consultants’ intellectual property, transfers any title or ownership in any of the same to the Client.
12. Privacy Act 2020
12.1. The Client authorises JC Consultants to:
12.1.1. Collect, use and retain any information about the Client, for the purpose of assessing the Client’s creditworthiness or marketing products and services to the Client; and
Disclose information about the Client, whether 1.1.1. collected by JC Consultants from the Client directly or obtained by JC Consultants from any other party, 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.
12.2. Where the Client is an individual the authorities under clause 12.1 are authorities or consents for the purposes of the Privacy Act 2020.
12.3. The Client shall have the right to request JC Consultants for a copy of the information about the Client retained by JC Consultants and the right to request JC Consultants to correct any incorrect information about the Client held by JC Consultants.
13. Dispute Resolution
13.1. In the event of any dispute or difference arising between the Client and JC Consultants, the parties agree to give written notice to the other detailing the dispute and attempt to resolve such dispute or differences amicably and in good faith between themselves. If, after 10 working days of giving written notice and the dispute or difference has not been resolved, then the matter, provided that is falls outside the jurisdiction of the Disputes Tribunal shall be referred to mediation under a single mediator to be agreed upon by both parties. If the parties cannot agree to a mediator then a mediator will be appointed by the Arbitrators and Mediators Institute of New Zealand (AMINZ). Disputes that fall within the jurisdiction of the Disputes Tribunal shall be referred to it immediately after the 10 working day period has elapsed.
13.2. If the parties cannot reach agreement at mediation, then within 10 working days of the mediation, the dispute shall be referred to arbitration under a single arbitrator agreed upon by both parties, or failing agreement, an arbitrator will be appointed by AMINZ. Such arbitration will be carried out in accordance with provisions of the Arbitration Act 1996.
13.3. If either party refuses to take part in any dispute resolution process requested by the other party within 10 working days of notice of a dispute being issued, the claimant may proceed directly to arbitration (or the Disputes Tribunal if applicable) to establish their claim.
I/we have read the above Terms and Conditions and by filling out the details in the boxes below I/we agree to be bound by them.