HSCA Terms of Trade
Health & Safety Consultants Auckland Limited (“HSCA”)
These Terms of Trade constitute an agreement between the client (“Client”) and Health & Safety Consultants Auckland Limited (“HSCA”).
PLEASE TAKE SOME TIME TO REVIEW THIS DOCUMENT AS USE OF HSCA’S SERVICES CONSTITUTES AN AGREEMENT TO BE BOUND BY THESE TERMS OF TRADE.
1. Work to be Performed
1.1 HSCA will provide the services detailed in the attached proposal, scope of works, engagement letter, or project plan (“Services”).
1.2 HSCA will perform the Services in an efficient, proper, and professional manner, in accordance with all applicable New Zealand law.
1.3 HSCA provides advisory, documentation, audit, training, and consultancy services only. HSCA does not assume the role of a PCBU, officer, supervisor, site manager, or duty holder under the Health and Safety at Work Act 2015. The Client remains solely responsible for all operational decisions and for implementing, maintaining, and enforcing any recommendations arising from the Services.
1.4 Where the Services are acquired for the purpose of a business, the provisions of the Consumer Guarantees Act 1993 will not apply and are excluded from these Terms of Trade to the maximum extent permitted by law. The Client acknowledges and agrees that sections 9, 12A and 13 of the Fair Trading Act 1986 are also expressly excluded.
1.5 Where legislation implies any condition or warranty, and that legislation prohibits the exclusion or modification of the application of, exercise of, or liability under such condition or warranty, such condition or warranty shall be deemed to be included in these Terms of Trade.
1.6 Except as provided in the Consumer Guarantees Act 1993 or other applicable legislation or as expressly provided for under these Terms of Trade, all other warranties, guarantees or conditions (express or implied, including any description, representation, or condition as to fitness or suitability of the Services for any purpose) are expressly excluded to the maximum extent permitted by law.
1.7 The Client will provide to HSCA, free of cost and as soon as practicable following any request for information, all information in its power to obtain which may relate to the Services. HSCA shall not, without the Client’s prior consent, use information provided by the Client for purposes unrelated to the Services. In providing the information to HSCA, the Client will ensure compliance with the Copyright Act 1994 and shall identify any proprietary rights that any other person may have in any information provided.
1.8 HSCA is entitled to rely on the accuracy and completeness of information supplied by the Client without independent verification unless expressly agreed in writing. HSCA shall not be liable for any loss, deficiency, delay, or outcome arising from inaccurate, incomplete, misleading, or late information provided by the Client.
1.9 HSCA may, at its discretion, use subcontractors or consultants to carry out any of the Services on HSCA’s behalf. HSCA will use reasonable endeavours to ensure any subcontractor carrying out the Services is suitably qualified and competent. HSCA remains responsible for the performance of subcontracted Services.
1.10 The Client will at all times ensure that any site which HSCA is required to enter in connection with the performance of the Services, and the facilities at such site, are safe and properly maintained.
1.11 The Client will grant HSCA unencumbered and unobstructed access to all areas of any site which HSCA is required to enter in connection with the performance of the Services.
1.12 To the extent required by law, the Client will comply with its obligations under the Health and Safety at Work Act 2015. The Client will advise HSCA of any hazards and risks which may be encountered by HSCA or its workers when undertaking the Services. If HSCA or its workers are likely to enter onto the Client’s premises or site in performance of the Services, the Client agrees to notify HSCA of all health and safety policies, procedures, and relevant site rules of the Client or other parties working on the site.
1.13 HSCA’s Services are provided using reasonable care and skill consistent with accepted professional practice in New Zealand at the time the Services are performed. HSCA does not warrant or guarantee that the Services will prevent incidents, injuries, enforcement action, prosecution, or regulatory penalties.
1.14 The Client acknowledges that any documentation, systems, or recommendations provided by HSCA are based on the information available at the time of engagement and may require updating if legislation, standards, guidance, or the Client’s operations change.
1.15 As soon as either party becomes aware of anything that will materially affect the scope, assumptions, deliverables, or timing of the Services, that party must inform the other party in writing.
1.16 Any material variation to the agreed scope, deliverables, or timeframe must be agreed in writing. HSCA reserves the right to charge additional fees for variations, additional site visits, urgent work, or work requested outside the agreed scope.
2. Payment Terms
2.1 The Client understands that payment is to be made to Health & Safety Consultants Auckland Limited (“HSCA”) within seven (7) days of HSCA issuing an invoice for Services rendered, unless otherwise agreed in writing.
2.2 The Client agrees that if HSCA has not received payment in full within thirty (30) days of issuing an invoice for Services rendered, interest will accrue at a rate of ten percent (10%) per annum, calculated daily, on each day that an invoice remains unpaid. HSCA reserves the right to refer the debt to a collection agency if an account is not paid within three (3) months of the invoice date.
2.3 Should payment not be made when due, the Client will indemnify HSCA for all costs and expenses (including legal costs and expenses incurred on a solicitor/client basis) incurred by HSCA in enforcing its rights and remedies under these Terms and under any law of New Zealand including, but not limited to, recovery of unpaid monies and debt collection fees.
2.4 HSCA may purchase such incidental goods and services as are reasonably required for HSCA to perform the Services. The cost of obtaining such incidental goods and services shall be payable by the Client. HSCA shall maintain records which clearly identify time and expenses incurred.
2.5 HSCA may suspend the provision of Services, in whole or in part, where payment is overdue until such time as all outstanding amounts (including accrued interest) are paid in full. HSCA shall not be liable for any delay, loss, or consequences arising from such suspension.
2.6 All invoices are payable in full without deduction, set-off, counterclaim, or withholding of any kind.
3. Client’s Liability and Indemnity
3.1 The Client warrants that it has full authority to engage HSCA to provide the Services and that the person accepting these Terms has authority to bind the Client.
3.2 The Client indemnifies and holds harmless HSCA, its directors, employees, agents and subcontractors from and against any and all damages, claims, losses, demands, liabilities (including vicarious liability), injuries, suits, actions, judgments, costs and expenses of any kind whatsoever (including, without limitation, legal costs on a solicitor/client basis and recovery costs) arising out of or in any way connected with:
- a) The Client’s breach of these Terms;
b) The Client’s failure to comply with applicable laws or regulatory obligations;
c) The Client’s failure to implement, maintain, or enforce recommendations arising from the Services;
d) Inaccurate, incomplete, or misleading information supplied by the Client;
e) The Client’s use, misuse, modification, or reliance upon HSCA documentation outside the agreed scope.
3.3 The Client acknowledges that HSCA does not control or supervise the Client’s workplace, workers, contractors, or operational systems, and the Client remains solely responsible for health and safety compliance and operational risk management.
3.4 The Client agrees that HSCA shall not be liable for any claim made by a third party arising from the Client’s implementation, non-implementation, or misuse of the Services.
3.5 The obligations under this clause survive termination of the Services.
4. Independent Contractor Relationship
4.1 HSCA’s relationship with the Client will be that of an independent contractor, and nothing in these Terms of Trade is intended to, or shall be construed to, create a partnership, agency, joint venture, fiduciary relationship, employment relationship, or any other relationship of trust or control between the parties.
4.2 HSCA has no authority to bind the Client, and the Client has no authority to bind HSCA, unless expressly agreed in writing.
4.3 No part of HSCA’s compensation will be subject to withholding by the Client for the payment of income tax, PAYE, ACC levies, or any other statutory deductions.
4.4 The Client acknowledges that HSCA does not assume management or supervisory responsibility for the Client’s workplace, workers, contractors, or operations.
5. Intellectual Property
5.1 Subject to full payment of all fees owing to HSCA, ownership of the final deliverables specifically created for the Client under the agreed scope of Services (“Client Deliverables”) shall transfer to the Client.
5.2 For the avoidance of doubt, “Client Deliverables” refers only to the final customised documents, reports, and materials produced specifically for the Client as part of the Services.
5.3 Notwithstanding clause 5.1, HSCA retains ownership of all pre-existing intellectual property, templates, frameworks, methodologies, systems, structures, training materials, formatting, layout design, and know-how used in creating the Client Deliverables (“HSCA Materials”).
5.4 To the extent that any HSCA Materials are incorporated into the Client Deliverables, HSCA grants the Client a non-exclusive, perpetual licence to use those materials solely as part of the Client Deliverables for the Client’s internal business purposes.
5.5 The Client must not:
- a) Reproduce HSCA Materials for commercial resale;
b) Provide HSCA Materials to third parties for the purpose of developing competing consultancy services;
c) Extract underlying templates or frameworks for standalone commercial use;
d) Represent HSCA’s methodologies as independently developed intellectual property.
5.6 The Client retains ownership of its own pre-existing data and information supplied to HSCA.
5.7 The Client grants HSCA permission to take photographs and video recordings for audit and record-keeping purposes.
5.8 HSCA may use anonymised images or generalised examples of work for marketing, educational, or promotional purposes. Written consent will be obtained before publishing any material that identifies the Client’s workers or confidential operational details.
5.9 The Client grants HSCA permission to display the Client’s name and logo as a client reference. HSCA will remove such reference upon written request within a reasonable time.
5.10 No third party may rely on any report, advice, documentation, or deliverable produced by HSCA without HSCA’s prior written consent.
6. Privacy
6.1 If the Client is a natural person, the Client irrevocably authorises HSCA to collect, retain, use, and disclose personal information about the Client to the extent reasonably necessary for the following purposes:
- a) Providing the Services to the Client;
b) Managing the Client relationship, including responding to enquiries, complaints, or feedback;
c) Administration, invoicing, and debt recovery;
d) Enforcing HSCA’s rights under these Terms;
e) Complying with legal, governmental, or regulatory obligations;
f) Conducting internal business analysis, quality assurance, and service improvement;
g) Marketing HSCA’s services, unless the Client opts out; and
h) Any other purpose authorised by the Client in writing.
(Collectively referred to as the “Permitted Purposes”.)
6.2 The Client authorises any person or entity to provide HSCA with information about the Client where reasonably required for the Permitted Purposes.
6.3 HSCA may disclose personal information where reasonably required for the Permitted Purposes, including to:
- a) Professional advisers, insurers, and auditors;
b) Subcontractors and service providers assisting HSCA;
c) Regulatory authorities where required by law;
d) Debt collection agencies for recovery of outstanding amounts;
e) Any other party authorised by the Client.
6.4 HSCA will comply with its obligations under the Privacy Act 2020 and will take reasonable steps to ensure personal information is protected against loss, unauthorised access, use, modification, or disclosure.
6.5 Personal information will be retained only for so long as reasonably necessary to fulfil the Permitted Purposes or as required by law.
6.6 The Client has the right to request access to and correction of any personal information held by HSCA.
6.7 If the Client fails to provide information reasonably requested by HSCA, HSCA may be unable to provide the Services.
6.8 Any personal information collected by HSCA will be held by Health & Safety Consultants Auckland Limited at its principal place of business in New Zealand.
7. Confidentiality
7.1 For the purposes of these Terms, “Confidential Information” means any technical, operational, financial, commercial, strategic, or proprietary information disclosed by one party to the other, whether in written, oral, electronic, visual, or other form, including without limitation information relating to business operations, employees, customers, systems, pricing, reports, and future plans.
7.2 The Client agrees to identify Confidential Information to the greatest possible extent when providing HSCA access to that information.
7.3 Each party agrees to:
- a) Keep Confidential Information strictly confidential;
b) Use Confidential Information solely for the purpose of performing or receiving the Services;
c) Not disclose Confidential Information to any third party except as permitted under these Terms.
7.4 HSCA may disclose Confidential Information where reasonably necessary:
- a) To its employees, contractors, insurers, professional advisers, or service providers for the purpose of delivering the Services;
b) Where required by law, regulation, court order, or governmental authority;
c) To enforce its rights under these Terms;
d) With the Client’s prior written consent.
7.5 The obligations of confidentiality do not apply to information that:
- a) Is or becomes publicly available other than through breach of these Terms;
b) Was lawfully in the receiving party’s possession prior to disclosure;
c) Is independently developed without reference to the Confidential Information;
d) Is lawfully received from a third party without restriction.
7.6 Where disclosure is required by law or regulatory authority, the disclosing party shall (where lawful and practicable) give prompt written notice to the other party before disclosure.
7.7 The obligations under this clause survive termination of the Services.
8. Limitation of Liability
8.1 HSCA shall, for the duration of the Services and for a reasonable period after completion, maintain insurance policies that HSCA reasonably determines are appropriate to cover insurable risks arising in connection with the provision of the Services.
8.2 HSCA will not be responsible for any delay or failure in providing the Services which is beyond HSCA’s reasonable control.
8.3 To the maximum extent permitted by law, and except as expressly provided in these Terms, all warranties, guarantees, or conditions (express or implied, including any implied warranties under the Contract and Commercial Law Act 2017) that may be excluded by law are excluded.
8.4 HSCA’s total aggregate liability to the Client arising out of or in connection with the Services (whether in contract, tort including negligence, equity, statute or otherwise) shall be limited to the lesser of:
- a) The total fees paid by the Client to HSCA for the specific engagement giving rise to the claim; or
b) NZD $1,000,000.
8.5 HSCA shall not be liable for:
- a) Loss of profits, revenue, anticipated savings, or business opportunity;
b) Consequential, indirect, or special loss or damage;
c) Regulatory penalties, fines, or enforcement action imposed on the Client;
d) Loss arising from the Client’s failure to implement HSCA recommendations;
e) Loss arising from inaccurate, incomplete, or misleading information supplied by the Client;
f) Loss arising from unauthorised modification or use of HSCA documentation.
8.6 HSCA shall not be liable for any claim by a third party unless HSCA has expressly agreed in writing that the third party may rely upon the Services.
8.7 Any claim must be formally notified to HSCA in writing within three (3) months of completion of the relevant Services.
8.8 If HSCA is found liable (whether in contract, tort, or otherwise), and the Client or a third party has contributed to the loss or damage, HSCA shall only be liable to the proportional extent of its contribution.
8.9 Nothing in these Terms limits or excludes liability for fraud or wilful misconduct.
9. Termination of Services
9.1 In the event of late payment of any fees, expenses, or amounts payable by the Client, HSCA may suspend all or part of the Services by written notice to the Client until such time as all overdue amounts (including accrued interest) are paid in full.
9.2 The Client may terminate the Services by giving ten (10) Working Days’ prior written notice to HSCA. For the purposes of these Terms, a “Working Day” means a day other than a Saturday, Sunday, or public holiday on which major banks are open for business in Auckland.
9.3 HSCA may terminate the Services by giving ten (10) Working Days’ prior written notice to the Client.
9.4 Upon termination of the Services for any reason:
- a) The Client must immediately pay all amounts owing to HSCA for Services provided up to the date of termination;
b) HSCA may invoice for work completed but not yet invoiced;
c) Where termination is initiated by the Client, HSCA may charge the Client for any reasonable costs, commitments, or expenditure incurred in connection with suspending or terminating the Services.
9.5 Termination does not prejudice or affect any accrued rights, remedies, or obligations of either party existing at the date of termination.
9.6 Clauses relating to payment, intellectual property, confidentiality, limitation of liability, dispute resolution, and any other clause which by its nature is intended to survive termination shall survive termination of the Services.
10. Force Majeure
10.1 HSCA shall not be liable for any failure, delay, or breach of these Terms where such failure or delay is caused by events beyond HSCA’s reasonable control, including but not limited to strike, industrial dispute, natural disaster, shortage or unavailability of goods or services, failure of suppliers, delay in transit, import restrictions, legislative or governmental prohibition or restriction, fire, flood, pandemic, epidemic, war, civil commotion, or any other cause beyond HSCA’s reasonable control (“Force Majeure Event”).
10.2 If HSCA considers that a Force Majeure Event has occurred and that HSCA will be unable to perform the Services as a result, HSCA will promptly notify the Client and may suspend the Services for the duration of the Force Majeure Event.
10.3 Any suspension of the Services under this clause shall not constitute breach of these Terms and HSCA shall not be liable for any loss, delay, or damage arising from such suspension.
10.4 Where the provision of the Services has been suspended for a continuous period of thirty (30) days or more due to a Force Majeure Event, HSCA may terminate the Services by written notice to the Client.
11. Notices
11.1 Any notice or other communication required or permitted under these Terms must be in writing and delivered:
- a) By personal delivery;
b) By pre-paid post; or
c) By email to the recipient’s last known email address.
11.2 A notice will be deemed to be received:
- a) In the case of personal delivery, at the time of delivery;
b) In the case of post, on the seventh (7th) Working Day after posting;
c) In the case of email, at the time the email enters the recipient’s information system, provided no automated notification of delivery failure has been received by the sender.
11.3 If a notice is received after 5:00pm on a Working Day, or on a day which is not a Working Day, it shall be deemed to be received at 9:00am on the next Working Day.
11.4 For the purposes of these Terms, “Working Day” means a day other than a Saturday, Sunday, or public holiday on which major banks are open for business in Auckland.
12. General Provisions
12.1 Entire Agreement
These Terms of Trade constitute the entire agreement between the parties in relation to the Services and supersede all prior discussions, negotiations, representations, or agreements (whether written or oral). No party shall be bound by any condition, warranty, or representation except as expressly set out in these Terms or agreed in writing and signed by both parties.
12.2 No Waiver
Any waiver, delay, or failure by HSCA to exercise any right or remedy shall not operate as a waiver of that right or remedy. No waiver shall be effective unless it is in writing and signed by HSCA.
12.3 Assignment
The Client may not assign, transfer, or subcontract its rights or obligations under these Terms without HSCA’s prior written consent. HSCA may assign its rights and obligations to a related entity or successor business.
12.4 Variation of Terms
HSCA reserves the right to update or amend these Terms of Trade from time to time. HSCA will notify the Client in writing of any amendment. By continuing to engage HSCA’s Services after such notice, the Client is deemed to have accepted the amended Terms.
12.5 Governing Law and Jurisdiction
These Terms shall be governed by and construed in accordance with the laws of New Zealand. The parties submit to the non-exclusive jurisdiction of the courts of New Zealand.
12.6 Severability
If any provision of these Terms is held to be invalid, illegal, or unenforceable, that provision shall be severed and the remainder of these Terms shall remain in full force and effect.
12.7 Dispute Resolution
If either party believes that a dispute has arisen in respect of these Terms, that party shall give written notice to the other party outlining the particulars of the dispute. The parties shall meet in good faith to attempt to resolve the dispute.
If the dispute is not resolved within ten (10) Working Days of written notice being given, the parties shall refer the dispute to mediation in New Zealand, to be conducted by a mediator agreed between the parties or nominated by the President of the New Zealand Law Society.
If the dispute remains unresolved following mediation, the dispute shall be referred to arbitration in New Zealand in accordance with the Arbitration Act 1996.
Nothing in this clause prevents either party from seeking urgent injunctive or interlocutory relief from a court of competent jurisdiction.
13. Personal Guarantee
13.1 If the Client is a company, trust, or other entity, and the person signing these Terms does so as a director, trustee, shareholder, or agent of that entity (“Guarantor”), the Guarantor agrees that:
- a) The Guarantor is personally bound by these Terms;
b) The Guarantor unconditionally and irrevocably guarantees the due and punctual payment of all monies owing by the Client to HSCA;
c) The Guarantor indemnifies HSCA against any non-payment or breach of these Terms by the Client.
13.2 The liability of the Guarantor under this clause is a continuing obligation and is not affected by:
- a) Any variation of the Services or these Terms;
b) Any extension of time granted to the Client;
c) Any failure by HSCA to enforce any rights against the Client;
d) The insolvency, liquidation, receivership, or restructuring of the Client.
13.3 HSCA may enforce this guarantee without first taking action against the Client.
13.4 Any personal liability of a Guarantor under these Terms is in addition to, and does not limit, the liabilities and obligations of the Client.
13.5 This guarantee survives termination of the Services.