1 Definitions
1.1 In these terms and conditions:
Business Day means a day other than a Saturday, Sunday, or public holiday in Auckland, New Zealand.
Client means each person, firm, company or other entity that orders Work from Uno Loco.
Client Brief means the brief which details the Event, including the Event Date, start time, finish time, location/venue at which the event will be held, and the work to be carried out (including the responsibilities of the parties) as agreed between the parties, and as further developed and agreed by the parties during the course of the performance of the Work.
Client Responsibilities means the responsibilities of the Client as set out in the Client Brief or as subsequently agreed by the parties in the course of the performance of the Work.
Confidential Information of a party means all information of that party which is by its nature confidential, is designated by that party as confidential, or which the other party knows or reasonably ought to know is confidential, regardless of its form and whether the other party becomes aware of it before or after commencement of the Work but excludes any information that is in or enters the public domain through no fault of the party receiving the information.
Estimate means the estimate of costs for the Work provided by Uno Loco to the Client in respect of an Event as may be amended by Uno Loco during the course of refining the Client Brief and in the course of the performance of the Work.
Event means the event for which the Client has requested the Work.
Event Date means the date on which the Event is to be held, as set out in the Client Brief.
Fees means the fees for the Work set out in the Estimate (as varied from time to time), Third Party Costs, Storage and Freight Costs (if applicable), and any other costs that are incurred by Uno Loco in undertaking the Work.
Intellectual Property Rights means all rights to, and any interests in, any intellectual property, patent, design, trade mark, copyright, trade secrets, know-how and any other proprietary right or form of intellectual property (in each case whether registered or unregistered) of a party and any application or right to apply for registration of any such rights.
Storage and Freight Costs means any:
(a) storage fees incurred by Uno Loco for storing the results and proceeds of the Work performed by Uno Loco where such storage services are outside the scope of the Work Uno Loco has agreed to undertake; and
(b) freight fees on deliveries to and from the Client required for the Work.
Terms means these terms and conditions.
Third Party Costs means the costs paid or payable by Uno Loco to third parties, on behalf of the Client, in carrying out the Work.
Work means the work and services that are supplied by Uno Loco to the Client from time to time as acknowledged verbally between the parties or set out in the Client Brief.
Uno Loco means Uno Loco Limited.
2 Acceptance of Terms
2.1 These Terms apply to all Work provided by Uno Loco to the Client.
2.2 The Client acknowledges and agrees that:
(a) any budgets or costings provided by Uno Loco:
(i) are estimates and valid for six months only, unless accepted by the Client prior to the expiry of that period;
(ii) do not constitute warranties or representations to the effect that any Third Party Costs will be limited to any particular amount or amounts. Uno Loco reserves the right to provide a revised costings on the basis that Third Party Costs may increase.
(b) by accepting Uno Loco’s Estimate and agreeing to proceed with the Work the Client is deemed to be bound by these Terms.
2.3 Uno Loco reserves the right to amend these Terms from time to time by notice in writing to the Client, provided that Uno Loco may amend any clerical errors in these Terms at any time without notification. The subsequent placing of an order for Work by the Client will be deemed as acceptance of the replacement Terms.
3 Variations
3.1 If the Client requests a change to the scope of Work (including the supply of further goods and/or services or guest numbers), or if Uno Loco recommends a change to the scope of Work, Uno Loco will prepare and submit a change order and amended Estimate (if the proposed change results in a reduction or increase to the Fees for the Work) to be approved by the Client. If an Estimate is varied and the Client proceeds with the Work following Uno Loco providing the revised Estimate to the Client, the Client is deemed to accept the revised Estimate for the Work.
4 Uno Loco’s Obligations
4.1 In consideration of the Fees, Uno Loco will:
(a) carry out the Work;
(b) on the Client’s request, provide a copy of relevant third party supplier(s) terms and conditions;
(c) pay, on behalf of the Client, the Third Party Costs;
(d) ensure that all personnel involved in the delivery of the Work are suitably skilled, experienced and qualified for the relevant task or responsibility and will act in a professional and courteous manner towards the Client while carrying out the Work;
(e) comply with any health and safety or other policies of the Client set out in the Client Brief.
5 Client’s Obligations
5.1 The Client will:
(a) carry out any Client Responsibilities;
(b) comply with reasonable instructions given by Uno Loco (whether verbally or in writing) in respect of the Work;
(c) provide to Uno Loco all reasonably necessary information and documentation relating to the Event and the Work to assist Uno Loco in the performance by Uno Loco of its obligations; and
(d) pay the Fees to Uno Loco in accordance with clause 6.
5.2 The Client acknowledges and agrees that in carrying out the Work and its obligations, Uno Loco is relying on the information provided by, and representations made by, the Client verbally or in the Client Brief, and the Client represents and warrants that any such information and representations are accurate.
6 Fees and Payment
6.1 The Client will pay the Fees to Uno Loco’s nominated account, without set-off or deduction of any kind, within seven days of Uno Loco issuing an invoice.
6.2 Unless otherwise stated, or expressly included in an Estimate given by Uno Loco, all amounts are:
(a) in New Zealand currency and will be paid in New Zealand currency;
(b) exclusive of all taxes (including goods and services tax (“GST”)), levies and duties, which shall be the responsibility of the Client and the Client will pay Uno Loco an amount equal to the GST and any other taxes, levies and duties payable in respect of the Work.
6.3 If any Fees or any other amount payable by the Client under these Terms is not made by the Client within seven days of it falls due for payment Uno Loco may:
(a) suspend or withhold further Work to the Client until payment of any outstanding amounts is made in full; and/or
(b) charge interest at the rate equal to the current Westpac prime commercial overdraft rate, calculated on a daily basis and payable on any moneys outstanding under these Terms from the date payment is due until the date payment is received by Uno Loco, but without prejudice to Uno Loco’s other rights or remedies in respect of the Client’s default in failing to make payment on the due date.
6.4 Any legal or debt collection fees, costs and disbursements (including solicitor client costs) incurred by Uno Loco in recovering outstanding monies from the Client will be recoverable by Uno Loco from the Client.
7 Event Postponement and/or Cancellation
7.1 The Event will be held, subject to clause 7.2 and 7.3, on the Event Date.
7.2 If the Event is postponed for any reason:
(a) notice of the postponement must be communicated by the postponing party to the other party in writing;
(b) the Client and Uno Loco will agree a suitable postponement date for the Event; and
(c) the Client will, in relation to the postponed Event, be responsible for reimbursing Uno Loco for any Third Party Costs actually paid or payable by Uno Loco and any other non-cancellable and unmitigable costs incurred or payable by Uno Loco (including but not limited to food and preparation costs, staffing costs, any labour such as rigging, security and stage building costs etc) that cannot be carried forward to the postponement date for the Event, within seven days of Uno Loco issuing an invoice for the same .
7.3 If the Event is cancelled for any reason (including, for the avoidance of doubt, if a suitable postponement date for the Event cannot be agreed):
(a) notice of cancellation must be communicated by the cancelling party to the other party in writing;
(b) in addition to the costs contained in clause 7.2(c) and all Fees incurred up to (and including) the date of cancellation which are payable by the Client to Uno Loco in relation to the cancelled Event, the Client acknowledges and agrees that Uno Loco may, at its sole discretion, charge the Client a cancellation fee which is calculated on the basis of the total Fees for the greater of either the actual hours worked by Uno Loco in preparing for the Event up to (and including) the date of cancellation, or if the Event is cancelled:
(i) between 8 to 30 days (inclusive) of the Event Date, 25% of the Fees;
(ii) between 4 to 7 days (inclusive) of the Event Date, 50% of the Fees;
(iii) between 2 to 3 days (inclusive) of the Event Date, 75% of the Fees; or
(iv) less than 48 hours prior to the Event Date, 100% of the Fees,
within seven days of Uno Loco issuing an invoice for the same.
8 Subcontractors
8.1 The Client agrees that Uno Loco shall be entitled to subcontract any part of the Work, other than the event management services. In circumstances where Uno Loco subcontracts any part of the Work, Uno Loco shall remain responsible for any act or omission of its sub-contractors.
9 Disputes
9.1 If any dispute or difference arises between the parties (“Dispute”) a party may not commence any court or arbitration proceedings relating to the Dispute unless it has first complied with the following paragraphs of this clause, except where the party seeks urgent interlocutory relief.
9.2 A party claiming a Dispute has arisen must give written notice to the other party specifying the nature of the Dispute (“Dispute Notice”) and the parties will enter into negotiations in good faith to attempt to resolve the dispute within 14 Business Days (or such longer period as the parties may agree) of the date of the Dispute Notice.
9.3 In the event that the Dispute remains unresolved, the parties must immediately refer the matter to arbitration by a single arbitrator agreed on between the parties or failing agreement within 5 Business Days after reference to arbitration, the arbitrator will be nominated by the President for the time being of the New Zealand Law Society. The arbitration will be conducted in accordance with the Arbitration Act 1996 and the location of the arbitration will be New Zealand. The parties reserve the right to appeal to the High Court of New Zealand on any question of law arising out of an award.
10 Confidentiality
10.1 The parties will not disclose each other’s Confidential Information to a third party without the other party’s prior written consent, except:
(a) to the extent required to comply with any applicable law or any requirement of any regulatory body (including any relevant stock exchange);
(b) that either party may make a disclosure of Confidential Information to its employees or professional advisors (for whom the recipient will be responsible) to the extent they need to know the Confidential Information and are made aware of the confidential nature of that information and are subject to obligations of confidentiality;
(c) to enforce its rights or to defend any claim or action in relation to the Work or under these Terms.
11 Intellectual Property Rights
11.1 The Client acknowledges and agrees that all Intellectual Property Rights in Uno Loco’s materials, any literary and artistic works and other materials produced by Uno Loco in tendering for the Client’s business, as well as Uno Loco’s systems and processes used in the management and organisation of an event or any Work, shall remain the sole and exclusive property of Uno Loco.
11.2 All Intellectual Property Rights in material developed or produced exclusively for the Client by Uno Loco (or a third party acting on Uno Loco’s behalf or engaged by Uno Loco on the Client’s behalf) or otherwise in connection with the Event, shall vest in the Client upon payment of the Fees in full.
11.3 For the avoidance of doubt and unless otherwise stated, each party retains title to all its Intellectual Property Rights pre-existing the Work.
12 Risk
12.1 All property belonging to the Client, even while in transit and/or in possession of Uno Loco, shall at all times remain at the Client’s risk. Similarly, all property owned by Uno Loco shall at all times remain at Uno Loco’s risk.
13 Restraint
13.1 Both parties agree that for a period of two years following the completion or cancellation of the Event (as the case may be), they will not, either personally or through its employees or directors, seek to solicit, contract, engage or offer employment to any employee or contractor of the other party.
14 Liability
14.1 Uno Loco will not be liable to the Client, whether in contract, tort (including negligence) or otherwise for any loss of profits, loss of business or anticipated savings, or any indirect loss or damage (including any consequential loss) arising out of or in connection with the Work or these Terms.
14.2 Except as may be permitted by law, Uno Loco’s total liability to the Client arising out of all claims for loss or damage in relation to the Work and under these Terms, will not in any circumstances exceed the total Fees paid or payable by the Client to Uno Loco in relation to the Work.
14.3 The Client is deemed to have accepted the Work unless the Client notifies Uno Loco in writing of any claims or defaults within seven Business Days of the Work being provided.
15 Force Majeure
15.1 Neither party shall be responsible or liable for failure or delay in the performance of its obligations where such failure or delay is due to any cause beyond its reasonable control including, but not limited to, events which are unpredictable or unforeseeable, such as any severe weather, flood, landslide, earthquake, storm, lightning, fire, subsidence, acts of terrorism, outbreak of military hostilities (whether or not war is declared), riot, explosions, strikes or other labour unrest, civil disturbance, sabotage, expropriation by governmental authorities, pandemic or epidemic, or other act or any event that is outside the reasonable control of the concerned party (“Force Majeure Event”), but excluding access to funds, labour or the performance of a sub-contractor to the extent is not impacted by a Force Majeure Event.
15.2 If any such Force Majeure Event should occur the affected party shall inform the other party and the affected party shall be entitled to reasonable additional time to complete its obligations. To the extent that the obligations cannot be completed in a reasonable period, or the Force Majeure Event continues for a period of 30 days or more, then either party may terminate the Work on written notice to the other party. Such termination will be without prejudice to the accrued rights and remedies of either party and the Client will pay all sums due and owing in accordance with clause 7.3.
15.3 Nothing in this clause relieves the Client of its obligation to pay any money due and owing to Uno Loco .
16 General
16.1 Uno Loco and the Client agree that these Terms express the complete agreement between them and that they will prevail over any Client’s terms and conditions contained in any document between Uno Loco and the Client unless expressly stated otherwise, and supersede all prior representations, arrangements, understandings and agreements between the parties.
16.2 Neither party may assign or transfer all or any of their rights or obligations (in whole or in part) under these Terms without the prior written consent of the other party (not to be unreasonably withheld). Any change in the controlling interest of a party will be deemed to be an assignment of rights by that party.
16.3 Any notice to be given will be in writing addressed to the party to whom it is given and left at or sent by e-mail to the address of such party as it may from time to time notify to the other and shall be deemed to be served on the day so left or transmitted by e-mail.
16.4 If any provision of these Terms is judged invalid or unenforceable for any reason it is severed and the remaining provisions of these Terms will continueto operate.
16.5 Each party’s rights will remain in full force despite any delay in enforcement, and neither party will be deemed to have waived any provision and/or obligation unless that waiver is in writing and signed by the party waiving that provision and/or obligation. Any waiver will apply only to the particular matter in respect of which it is given.
16.6 These Terms are to be governed by and construed in accordance with the laws of New Zealand and the parties submit to non-exclusive jurisdiction of the New Zealand Courts.