Terms of Trade
18 March 2024
1. Definitions
1.1 Unless otherwise specified, the following definitions apply in these Terms:
- Company: Carter Briggs Hurle Limited (company number 9021175).
- Confidential Information: Information that is by its nature confidential or which a party knows or ought to know is confidential.
- Contract: The contract formed in accordance with clause 2.3, comprising these Terms and the content of the particular Request for Services.
- Client: The persons, firms, companies, or corporate entities with which a Contract is formed, in accordance with these Terms. Where there are multiple entities party to a matter (coinsurers) who collectively engage the Company through the actions of a Lead party, these Terms apply to all parties in relation to that contract.
- Fees: The fees payable by the Client to the Company for the performance of the Services, calculated at the hourly rate that applies at the time the Services are performed. The Client may request details of the applicable Fees payable at any time.
- Report: A report prepared by the Company as part of its performance of the Services.
- Request for Services: A request for Services placed by the Client from time to time.
- Services: The provision of loss adjusting, forensic accounting, or related services in relation to insurance matters, including claims, or other matters of loss management or economic loss.
- Terms: These terms and conditions as amended from time to time.
2. Contract
2.1 The Client may place a Request for Services with the Company over the phone or via email or text.
2.2 Upon receipt of a Request for Services, the Company may request further information from the Client in respect of the Request for Services (if necessary). The Client must provide reasonable information, support, and direction to the Company to clarify a Request for Services.
2.3 A Contract is formed when the Company accepts a Request for Services placed by the Client. The Company can accept a Request for Services verbally, in writing, or by commencing performance of the Services.
2.4 The Customer will be deemed to have accepted these Terms by placing a Request for Services or by accepting the performance of the Services.
3. Services
3.1 The Company will commence performance of the Services after a Contract is formed in accordance with clause 2.3.
3.2 The Company may engage third-party experts, consultants, or contractors to assist it in performing the Services or may be required to rely on the opinions of experts, consultants, or contractors engaged by the Client.
3.3 On completion of the Services, the Company will provide the Client with its Report/s. The Report/s will be owned by the Client. The Company will not be liable to any third party who uses or otherwise relies on any Report.
4. Fees and Expenses
4.1 In consideration for performing the Services, the Client will pay the Company: (a) the Fees (plus GST if applicable); (b) any disbursements and expenses reasonably incurred by the Company in relation to the performance of the Services to which a margin of up to 10% may be applied by the Company. Such disbursements and expenses can include any fee collection cost incurred or that will be incurred by the Company; and (c) the costs reasonably incurred by the Company in engaging and managing third-party experts, consultants, or contractors in relation to the performance of the Services, including the Company’s administration costs (which may be expressed as a margin of up to 10%) and the Company’s time relating to such engagement (if applicable).
5. Payment
5.1 Unless otherwise agreed in writing, the Company may invoice the Client monthly for the Fees and other costs payable by the Client in accordance with clause 4.1.
5.2 The Client must pay the Company’s invoice in full within 14 days after the date of the Company’s invoice.
5.3 If the Client does not pay any invoice by the due date, then (without prejudice to any of the Company’s other rights), the Company may: (a) charge interest on the outstanding amount at the rate of 12% per annum (calculated daily) until payment is made in full; (b) charge the Client any debt collection and legal costs on a solicitor-own client basis; or (c) suspend the supply of further Services to the Customer, in which case any costs incurred by the Company as a result of a suspension will be immediately due and owing by the Client.
6. Termination
6.1 The Client may terminate a Contract at any time by giving the Company no less than 24 hours’ written notice.
6.2 Either party may terminate a Contract immediately by giving written notice to the other party (Defaulting Party) as a result of: (a) the Defaulting Party’s default under that Contract, which is not capable of remedy or, where the breach is capable of remedy, the Defaulting Party fails to remedy the breach within 14 days after receiving written notice specifying the breach and requiring it to be remedied; or (b) the Defaulting Party becoming insolvent or being subject to the appointment of a receiver, manager, liquidator, or statutory manager, or committing an act of bankruptcy, or making a scheme of arrangement with its creditors.
6.3 Upon termination of a Contract (for whatever reason), the Client must, within 14 days after the date of termination, pay to the Company all sums due and owing to the Company under that Contract. Termination of the Contract will not affect any accrued rights or obligations of either party.
6.4 The parties agree that the provisions of clauses 4.1, 6, 7, 8, and 9 survive termination of the Contract.
7. Liability
7.1 The Company is relying on the Client to provide information that is true and correct and will not be liable for any loss under a Contract resulting from the Client’s failure to do so.
7.2 The Company is not liable for any act or omission of, or opinion provided by, any other party. Liability for any error or inaccuracy in the Company’s work directly or indirectly caused by or resulting from any act or omission of any other party, whether engaged by the Client, Company, or any other party, is hereby disclaimed by the Company.
7.3 The Company’s maximum aggregate liability to the Client, whether in contract, tort, or otherwise, in relation to claims, damages, liabilities, losses, or expenses, will be the lesser of five times the Fees payable (exclusive of GST) or $250,000.
7.4 Despite anything else in these Terms, neither party will be liable for any loss of profits or any indirect or consequential loss or damage.
8. Confidential Information
8.1 Each party confirms that it will not use or disclose the other party’s Confidential Information to any person or organization without that party’s prior written consent, other than: (a) To the extent necessary to deliver the Services (including in relation to the Company’s engagement of any third-party expert, consultant, or contractor in accordance with clause 3.2); (b) if the use or disclosure is required by law; or (c) where the information has already entered the public domain.
9. General
9.1 The Client is acquiring the Services for the purposes of a business pursuant to sections 2 and 43(2) of the Consumer Guarantees Act 1993 (CGA) and accordingly the CGA does not apply to these Terms.
9.2 The parties will: (a) each ensure they comply with their respective obligations under the Health and Safety at Work Act 2015 (HSWA); and (b) consult, cooperate, and coordinate as far as reasonably practicable with each other and any other person who has health and safety obligations in connection with their obligations under the HSWA.
9.3 Neither party will be liable to the other for any failure to perform its obligations under the Contract to the extent the failure is due to an event that is beyond the reasonable control of the party immediately affected by the event.
9.4 All notices and other communications to be given under these Terms must be in writing and addressed to the receiving party’s most recently communicated postal address or email address.
9.5 The parties must use reasonable endeavors to resolve any disputes arising under or relating to a Contract by negotiation but will not be prevented from seeking urgent interim relief from the courts.
9.6 Any amendment to these Terms will apply to any Contract formed after the Company notifies the Client of the amendment either by providing the amendment to the Client directly or uploading the updated Terms to the Company’s website (cbhadjusting.com/terms).