Terms and Conditions

1. Introduction

Smart & Wise (we or our) values its relationship with our clients (you) and believes that it is important that you are aware of and understand the terms on which we will provide our services to you.
These terms and conditions will apply every time you engage us to provide services to you unless we have agreed an alternative arrangement with you, which is recorded in writing.
We will take your continued instructions as your acceptance of these terms and conditions.
These terms and conditions are an important document. Please keep a copy of this document for your
records.
If you have any questions about these terms and conditions, please contact the Smart & Wise consultant
responsible for your business.

2. Services

In carrying out any work with you, we will:
i. take all reasonable care and skill;
ii. comply with our legal and ethical obligations to you;
iii. use our best efforts to deliver the desired outcomes within agreed or anticipated time frames and costings; and
iv. subject to legal and/or ethical constraints, carry out your instructions and put your interests before all others.
Our duties under these terms and conditions are owed solely to you, the person who has engaged us.
We do not accept any responsibility to any third parties who may be affected by our performance of the
service or who may rely on any advice we give, except as expressly agreed in writing between us.
In order to provide efficient, specialist advice and services, it may be required that we delegate some
services to a person other than the person you originally instructed.

3. Communication

We will report to you periodically on the progress of any services and will always try to keep you informed of any unexpected delays or changes in the character of the work being undertaken.
We require that you provide us with your full name, and a postal address and telephone number at which we can contact you when required.
If you provide us with an e-mail address, then information may be relayed to you by email.
We will from time to time send you information, such as client newsletters, updates and other material
that may be relevant to you. These may be sent in electronic form to the e-mail address provided by you. Unless you tell us, otherwise, we will assume you agree to receive this information.

4. Confirmation

On receipt of the service agreement and deposit, we will confirm your order and the date for the service for the number of people agreed.

5. Our Fees

Unless we have provided you with a fixed fee quote in writing, our fees will take into account several factors including:
i. the time and labour expended;
ii. the skill, specialised knowledge, and responsibility required to perform the services properly; iii. the importance of the matter to you and the results achieved;
iv. the urgency and circumstances in which the matter is undertaken and any time limitations imposed, including those imposed by you;
v. the complexity of the matter and the difficulty or novelty of the questions involved; vi. the experience, reputation, and ability of the person who acts for you;
vii. any quote or estimates of fees given by us to you
viii. the reasonable costs of running a firm; and
ix. the cost and labour for any materials created for you
You may request an estimate of our fee for undertaking the required services at the time you instruct us.
Any significant assumptions included in the estimate will be stated.
Unless otherwise stated, any estimate or charge out rate will not include office charges, disbursements or GST.
Any estimate or charge out rate provided by us is a guide only. The amount of the final fee may be more or less depending on all the circumstances.
If we are going to significantly exceed any estimate provided by us we will contact you to discuss a revised estimate.
Any estimate given by us is not a quote or fixed fee, nor is it a cap on what may be charged by us.

6. Expenses and Disbursements

In addition to our fees, we will also charge you for any expenses and disbursements incurred by us to third parties on your behalf. These costs may include (without limitation) such things as photocopying, binding, courier, telephone, accommodation, venue, travel, transport, and food. We reserve the right to request payment of these disbursements from you in advance.
We may also charge you a separate fee to cover other costs relating to general administrative expenses incurred as a consequence of and during the course of our service.

7. Changes in Scope and Service

The delivery of the service is the smallest component the majority of our work is pre-planning and follow-up, due to this:
i. Any changes made to the original agreement will affect the originally agreed rate. We will discuss with you what the difference is in pricing for any changes made to the scope and service when you ask for them.
ii. All work is organised, created and timed specifically to the original agreed scope and service. Any changes to the scope and service will affect and change the originally agreed pricing, this will be reflected on the invoice.
iii. Any work booked in for a certain number of participants (people) will be charged at the originally agreed number of participants. No refunds or lower prices will be given for reduced numbers actually attending any service.
iv. As all service is created, organised, and timed to meet all outcomes with the original number of participants, any additional people outside of the originally agreed number will be charged on top of the originally agreed rate to allow for replanning and accommodating of the new people.

8. Our Invoices

A booking deposit of 50% of the total unit fee will be required prior to the commencement of any work undertaken. This deposit guarantees your chosen dates and is non-refundable.
You will receive a minimum of 2 invoices for the service. The first invoice is for the booking deposit and the second invoice is the final payment of the remaining total amount.
If the work is ongoing and is spread over more than a month, you will receive a monthly invoice following the first invoice as mentioned in clause 8.a
No booking is guaranteed until the deposit is received.

9. Payment

Our invoices are payable within 7 days following the date of the invoice unless alternative arrangements have been agreed with you in writing.
We accept payment by cheque, online payment through PayPal and Stripe or by direct credit to our bank account. All our invoices are accompanied by a remittance advice to assist with payment.
We reserve the right to require payment in advance.
If you dispute any item or items referred to in the monthly invoice, you will, within 10 working days of
receipt of such invoice, notify us of the reasons for disputing the item(s). Payment of any undisputed portion of an invoice shall not be delayed on account of such dispute.

10. Unpaid Accounts

If you have difficulty in meeting any of our accounts, please contact us promptly so that we may discuss payment arrangements.
If our invoiced amount or any part of it remains unpaid beyond 14 days from the date of the invoice, we reserve the right to:
i. charge a default fee at the rate of 2% per month (including GST) on the outstanding balance; and
ii. stop all work until the overdue amount is paid, to require payment for future fees in advance or to terminate our services in a manner which is consistent with our obligations.
In the event we need to take recovery action from you, you will be liable to reimburse us for our actual

costs of taking that action (including lawyers and debt collector’s fees).

11. Cancellation made by you

Cancellation terms apply once an order has been accepted in writing or email by us and the deposit is paid.
Cancellation fees are based on the agreed price for the service as stated in the service agreement. The agreed price will be the final price agreed if changes have been made to the scope and service.
You agree and acknowledge that a change in the scope or service may cause a significant burden for us and agree to forfeit the amount in accordance with clause 6, 11.e and 11.f.
Where a booking has been accepted by us and is subsequently cancelled, you will be liable for the following charges. All cancellations must be received in writing, either by post or email.
For all bookings of pre-made workshops with no custom changes made, the following cancellation fees apply:
i. more than 31 working days before the service date will incur no percentage charge outside of payment for clauses 6, 7, and 8.b.
ii. between 21-31 working days before the service date, a 50% cancellation fee will be charged along with clauses 6, 7, and 8.b.
iii. 20 working days or less before the service date will incur a 100% cancellation fee along with clauses 6, 7, and 8.b.
For all bookings with custom changes or bookings that are custom built specifically to your needs, the following cancellation fees apply:
i. Some of our services are progressive and success can only be determined at the completion of the project or service, it is best that projects or services be completed in full. Cancelling a project before completion affects us both financially and affects the value of our reputation. Due to this, we will charge you for:
a. Any work undertaken so far in full in accordance with clause 5.a, 6, 7 and 8.b.; and
b. 50% of any remaining total fee to compensate us for any significant burden caused.

12. Cancellations made by us

We reserve the right to amend or cancel a service due to unforeseen circumstances.
Any service, times, dates or prices. Changes to prices, times and dates will be advised before the service start date and any service already paid in full will not be subject to the increased price. As a service may be cancelled at any time up to 4 weeks prior to its start, we recommend that people do not make travel or accommodation arrangements before this time.
No refund of your deposit will be given.
Any travel, accommodation or subsistence costs incurred (including incidental costs such as car parking) are entirely your responsibility.
We do not accept any liability for reimbursement of any costs incurred whatsoever in relation to services, courses or events.
Where service has been cancelled, you will be offered an alternative date by us for the same service.

13. Force Majeure

An event of force majeure is an event or circumstance which is beyond the control and without the fault or negligence of the party affected and which by the exercise of reasonable diligence the party affected was unable to prevent provided that event or circumstance is limited to the following:
i. riot, war, invasion, act of foreign enemies, hostilities (whether be declared or not) acts of terrorism,
civil war, rebellion, revolution, insurrection of military or usurped power, requisition or compulsory
acquisition by any governmental or competent authority;
i. ionising radiation or contamination, radioactivity from any nuclear fuel or from any nuclear waste
from the combustion of nuclear fuel, radioactive toxic explosive or other hazardous properties of any
explosive assembly or nuclear component;
iii. pressure waves, caused by aircraft or other aerial devices travelling at sonic or supersonic speeds;
iv. earthquakes, flood, fire or other physical natural disasters, but excluding weather conditions regardless of severity; and
v. strikes at national level or industrial disputes at a national level, or strike or industrial disputes by labour not employed by the affected party, its subcontractors or its suppliers and which affect an essential portion of the works but excluding any industrial dispute which is specific to the performance of the works or our agreement.
Neither party is responsible for any failure to perform its obligations under this agreement if it is prevented or delayed in performing those obligations by an event of force majeure.
Where there is an event of force majeure, the party prevented from or delayed in performing its obligations under this agreement must immediately notify the other party giving full particulars of the event of force majeure preventing the party from, or delaying that party in performing its obligations under this agreement and that party must use its reasonable efforts to mitigate the effect of the event of force majeure upon its or their performance of the agreement and to fulfil its or their obligations.
Upon completion of the event of force majeure, the party affected must as soon as reasonably practicable recommence the performance of its obligations under this agreement. Where the party affected is the contractor, the contractor must provide a revised programme rescheduling the works to minimise the effects of the prevention or delay caused by the event of force majeure.
An event of force majeure does not relieve a party from liability for an obligation which arose before the occurrence of that event, nor does that event affect the obligation to pay money in a timely manner which matured prior to the occurrence of that event.
The contractor has no entitlement and the project company has no liability for:
i. any costs, losses, expenses, damages or the payment of any part of the contract price during an event of force majeure; and
ii. any delay costs in any way incurred by the contractor due to an event of force majeure.

14. Warranty ‍

We warrant that:
i. we will perform the service with reasonable care and skill

15. Responsibility and Liability

We do not accept responsibility or liability for any person contravening any law or regulation and/or any person who refuses to follow and abide by the advice or decision of the trainer or consultant while participating in our services.
We do not accept responsibility or cost incurred for damages made by any person to a property or any negative impact caused to the service.

16. Confidentiality

Any confidential information we receive will only be used by us to provide our services to you and will not be made available to a third party.
Information disclosed to us by you will be afforded confidentiality to the fullest extent allowed by law.

17. Privacy

In your dealings with us, we will collect and hold personal information about you. We will use that information to carry out the service and to make contact with you in the future about issues we believe will be of interest to you, such as those described in clause 3.d. Failure to provide information we request may prevent or hinder us from providing our services to our customary standards, or at all.
We may disclose your name and address to a credit agency to perform a credit reference or to undertake credit management processes if we deem it necessary to do so.
Subject to our legal and ethical obligations to maintain client/consultant confidentiality at all times you authorise us to disclose, in the normal course of performing the service, such personal information to third parties for the purposes mentioned in clause a and b above.
The information we collect and hold about you will be kept at our offices.

18. Service Participation

It is your responsibility to choose a service that is within the capabilities of your group/team. Generally, the activities are not physically demanding, but they may require some physical movement such as walking, kneeling, board breaking, throwing, and catching. If you have any doubts about the suitability of any participant in a particular activity, you should ensure that they consult their doctor before participating.
If in the opinion of the trainer, facilitator, coach, or consultant, the health or conduct of a client at any time before or during appears likely to endanger the safe, comfortable, or happy progress of a service, that person may be excluded from all or part of the service.
In the case of a person with ill health requiring medical attention, we may make such arrangements as we see fit and recover the costs from you.
The person signing the service agreement warrants that they have full authority to do so on behalf of all persons whose names appear on the service agreement or separately in relation to the group, and confirms that all persons are fully aware of and accept these conditions.

19. Intellectual Property Rights

Our consulting processes, methodology, training material, and training methodology forms a significant element of our intellectual property and goodwill. We retain copyright and intellectual property rights of all aforementioned, together with all documents and materials prepared by us. You are entitled to use or copy them, only for the specific work and purpose for which they are intended.
All documentation including workbooks and materials are owned by us and may not be copied by you without written consent.

20. Sub-contracting

We may, without prior written consent, engage a sub-contractor to carry out any part of the services but in such event, will take full responsibility for all aspects of the subcontractor’s performance, remuneration and compliance with the terms of the agreement and of any relevant legislation or regulations.

21. Publicity and Marketing

You authorise us to use your logo and associated trademarks as well as any testimonials, feedback, media, photos, or footage from any service solely for the purpose of marketing our services.

22. Complaints and Dispute

If you have any concerns or complaints about our services please raise them as soon as possible with the person whom they relate.
If we fail to resolve the relevant dispute within a period of 14 days, either party may (by written notice to the other party) require that the dispute be submitted for mediation by a single mediator nominated by the President for the time being of the Arbitrators and Mediators Institute of New Zealand Inc. (or his or her nominee). In the event of any such submission to mediation:
i. the mediator shall be deemed to be not acting as an expert or as an arbitrator.
ii. the mediator shall determine the procedure and timetable for the mediation.
iii. the cost of the mediation shall be shared equally between parties.
iv. neither party may require any arbitration, or issue any legal proceedings (other than for urgent
interlocutory relief), in respect of any such dispute, unless that party has taken all reasonable steps to comply with clauses 22.a and 22.b

23. Feedback

Client satisfaction is very important to us and feedback from clients is very helpful. If you would like to comment on any aspect of the service provided by us, please contact us on Email: accounts@michaelphilpott.co.nz, or Smart & Wise Limited, Unit 12, St James Court, 77 Gloucester Street, Christchurch Central, Christchurch, 8013, New Zealand.