JC Consultants Asbestos Sampling Terms and Conditions
1. Parties and Definitions to this Agreement
1.1. "JC Consultants” means JC Consultants Limited, its successors and assignors, or any person acting on behalf of, and with the authority of JC Consultants Limited.
1.2. “Contract” means the contract formed between JC Consultants Limited and the client as detailed in clause 2.
1.3. “Client” 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. “Services” means all services as supplied by JC Consultants to the Client at the Client’s request from time to time.
1.5. “Price” means the price payable for the Services, as agreed between JC Consultants and the Client in accordance with clause 10 below.
1.6. “Sampling” means the Asbestos Sampling.
1.7. “ACM” means asbestos containing material
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 agreement can be amended by JC Consultants 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 sale 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 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.
4. Asbestos Sampling
4.1. The purpose of the sampling is to allow the client to identify and manage possible asbestos item/s in the client’s building/premises.
4.2. The Sampling will indicate the presence and location of asbestos and asbestos containing material (ACM). The sampling will:
4.2.1. Record the location, product of any assumed or known asbestos and ACM only in the agreed sample location/s.
4.2.2 Determine the asbestos type, by collecting representative sample of suspect materials for laboratory identification.
4.3. The service is limited to conducting Asbestos Sampling as agreed with the client. The works to be undertaken DO NOT constitute an Asbestos Management Survey or an Asbestos Demolition and Refurbishment Survey or an Asbestos Survey of any kind.
4.4. After completing the Sampling, we will present our findings in the form of a letter.
5. Scope of Sampling
5.1. The Sampling is completed by taking small part/s of the suspected material/s.
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 aspects of the building which cannot be accessed.
6. Before Sampling
6.1. JC Consultants will need to plan the sampling based on the extent and complexity of the building. Before the Sampling, the client must provide all relevant information relating the building including:
Details of the buildings, or parts of buildings to be sampled.
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.
6.2. The items to be sampled will be agreed beforehand and identified in writing by the client to JC Consultants and/or detailed in the letter of engagement.
7. Inspection
7.1. Sampling is completed using minor intrusive work, such as accessing behind fascia, panels and other surfaces or superficial materials.
7.2. Taking the sample/s may involve the use of simple tools like screwdrivers and chisels.
8. Reasonable Access
8.1. The client will ensure that JC Consultants will have Reasonable and Safe Access to all areas of the building to conduct the Sampling.
9. Service & Conduct
9.1. Where JC Consultants performs Services for the Client, it will ensure that all Services are provided in timely and professional manner and in accordance with any agreed timeframes.
10. Price and Payment Terms
10.1 Payment shall be at JC Consultants sole discretion based on one or more of the following:
10.1.1. JC Consultants will invoice the client in advance of work to be completed. In the event further work is required , the client will be notified and any additional work will be charged.
10.1.2. Payment is due prior to the sampling being undertaken and results released. Accounts not paid by the due date shall incur a late payment interest charge of 15% of the total amount owing for each calendar month the account is overdue, together with all debt collection costs.
10.1.3. Payments will be by direct credit to JC Consultants nominated account.
10.2. Payment shall not be deemed to be received unless the payment is cleared funds deposited into JC Consultants’ nominated account. Any other form of payment will not be receipted as paid unless the transaction is deemed to be honoured by JC Consultants.
11. Default and Consequences of Non-Payment
11.1. 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.
11.2. Interest on overdue or unpaid invoices shall accrue daily from the date when payment becomes due until the date payment is received at a rate of 15% per calendar month and all interest shall compound monthly before and after any judgement until payment is received in full.
11.3. 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 tp payment). JC Consultants will not be liable for any loss or damaged the Client has deemed to have suffered because JC Consultants has exercised their right under this clause.
11.4 Without prejudice to JC Consultants other remedies at law, JC Consultants shall be entitled to cancel all or any part of any supply agreement 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:
11.4.1. 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
11.4.2. The Client become insolvent, convenes a meeting with its creditors or proposes or enters into an arragement with creditors, or makes an assignment for the benefit of its creditors; or
11.4.3 A receiver, liquidator, manager (provisional or otherwise) or similar person is appointed in respect of the Client or any assets of the Client.
12. Right of Cancellation
12.1 If the Client cancels this agreement, in consideration for JC Consultants arranging a time for the Sampling, the Client will pay JC Consultants a cancellation fee equal to the final cost of the asbestos sample/s, provided however that JC Consultants have received 24 hours (one full working day) written notice of cancellation, no fee will be payable.
13. Consumer Guarantees Act
13.1 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 supply of Services by JC Consultants to the Client.
14. Intellectual Property
14.1 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.
15. Dispute Resolution
15.1 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 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).
15.2 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 the Arbitrators and Mediators Institute of New Zealand (AMINZ). Such arbitration will be carried out in accordance with provisions of the Arbitration Act 1996.
15.3 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 to establish their claim.
16. General
16.1 If any provision of these Terms and Conditions shall be invalid, void, illegal or unenforceable the existence, validity legality and enforceability of the remaining provisions shall not be prejudiced, affected, or impaired.
16.2 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 courts of New Zealand or as otherwise directed by the Court.
16.3 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 these Terms and Conditions.
16.4 In the event of any breach of this contract by JC Consultants the remedies of the Client shall be limited to damages to the amount of monies paid to JC Consultants by the Client in part or full, or the extent to which JC Consultants is indemnified by its insurer, whichever is the lesser amount.
16.5 The Client shall not be entitled to set off against or deduct from the price any sums owed or claimed to be owed to the Client by JC Consultants.
16.6 JC Consultants may license or sub-contract all or any part of their rights and obligations without the Client’s consent.
16.7 Neither party shall be liable for any default due to any act of God, war, terrorism, fire, flood, drought, storm, pandemic, or other event beyond the reasonable control of either party.
16.8 The failure by JC Consultants to enforce any provision of these Terms and Conditions shall not be treated as a waiver of that provision, nor shall it affect JC Consultants’ right to subsequently enforce that provision.
16.9 Events outside our control: If any cause beyond our reasonable control including but not limited to order of a government or other authority, strike, lockdown, labour dispute, delays in transit, difficulty in procuring components or equipment, embargo, accident, emergency, act of God interfere with our performance of any of our obligations under these Terms and Conditions then we may at our sole discretion suspend our performance of any such obligation or cancel any contract for the purchase of Services and we will not be liable to you in any respect.
17. Personal Guarantee of Company Directors or Trustees
17.1 If the Client is a company or a trust, the director(s) or trustee(s) party to this contract of Terms and Conditions of Trade, in consideration for JC Consultants agreeing to supply Services and grant credit to the Client at their request, also enter this contract in their personal capacity and jointly and severally personally undertake as principal debtors to JC Consultants the payment of any and all monies now or hereafter owed by the Client to JC Consultants and indemnify JC Consultants against non-payment by the Client. Any personal liability of a person entering this agreement will not exclude the Client in any way whatsoever from the liabilities and obligations contained in this contract. The Client and its director(s) or trustee (s) will be jointly liable under this contract of Terms and Conditions of Trade and for payment of sums due under the contract.
I/we have read the above Terms and Conditions and agree to be bound by them.