TERMS OF TRADE
How these Terms Apply You are taken to have exclusively accepted and are immediately bound, jointly and severally (where there is more than one purchaser), by these terms and conditions of trade when you:
a.place an Order for any Goods and Materials or Services from us; and/or
b.accept delivery of any Goods and Materials or Services from us; and/or
c.permit entry by us to your Site to perform Services or install any Goods and Materials; and/or
d.issue a purchase order to us to confirm an Order.
Parties This Contract is between you, the named customer in the Order and us, EYE FOR DETAIL LIMITED (COMPANY NUMBER: 424869) (“us”, “we” or “our”).
DEFINITIONS
Definitions The following definitions apply in this Contract:
a.“Business Days” Any reference to ‘Business Days’ in these terms means a day on which banks are ordinarily open in New Zealand and excludes a Saturday, a Sunday or a public holiday. Any other reference to a ‘day’ shall mean a calendar day.
b.“Contract” means these terms and conditions together with:
(i)any Order documentation; and
(ii)all and any plans, drawings and specifications (including any variations to such); and
(iii)any other document or amendments expressed to be supplemental to an Order.
c.“Goods and Materials” means any goods, materials, products, (including components) or equipment supplied in connection with any Order.
d.“Order” means any quotation, cost estimate, work order, statement of work, online booking, phone booking, invoice, email confirmation and any other documentation setting out our pricing, scope of Services or order for Goods and Materials.
e.“Plant and Machinery” means machinery , including non-mechanical machinery, appliances, containers, cranes, hoists, scaffolding, rigging, temporary structures and related components already situated or required to be brought onto your site for the performance of mobile or onsite Services.
f.“Site” means the place or places where the Services are to be performed by us or Goods and Materials are to be
delivered. This includes any Site under the direction of a head contractor.
g.
“You” means the purchaser buying the Goods and Materials and Services as specified in Order. If the purchaser comprises more than one person, each of those persons’ liability and agreement is joint and several.
h.“Us” any reference to “us”, “we” or “our” includes any contractor, employee, assignee, transferees or approved subcontractor that we use.
OUR OBLIGATIONS
Our Services All and any general building, renovation, project management or other related Services or works as described in our Order shall be performed in accordance with industry best practice, with due skill and care and in a competent manner.
Goods and Materials These will be fit for purpose for the proposed use and unless agreed with you, will be new.
Equipment We will supply all equipment, including on-hire of additional Plant and Equipment, necessary to perform the Services. To avoid doubt this may include the costs and expenses of additional Plant and Machinery, which shall be an additional cost to an Order price.
Subcontractors Either we or our approved subcontractors will perform the Services for you.
Updates on Timing We will advise you of any anticipated delay to provide a Service or procure Goods and Materials.
Record of Work If required by law, we will give you any certificate or similar document as needed to confirm the works are completed.
Work May be Performed in Instalments We may perform the Services and related works in instalments on different dates.
TRADE CUSTOMERS
Trade Credit Where we agree to grant trade credit terms, the following applies:
a.the supply of Goods and Materials or Services on credit may be subject to the requirement to complete a trade credit application form; and
b.we may request a personal guarantee from one or more directors; and
c.if the supply of Goods and Materials or Services requested exceeds your credit limit and/or the account exceeds the payment terms or is in arrears, we reserve the right to refuse to accept further Orders, until the arrears have been cleared.
GENERAL CUSTOMER OBLIGATIONS
Authority for Approval Decisions You must nominate a single individual with authority to give instructions or approval to us.
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Where you are working with a professional consultant that you wish to delegate approval and authority to, you must provide us with a contact name, status and basis on which approval or instructions can be accepted by us.
Accuracy of Plans, Drawings and Specifications You are responsible for the accuracy of any plans, drawings or specifications that you provide to us. Where any changes are made to such documents after you confirm an Order, you must inform us immediately.
Consents You must make your own enquiries relating to the requirement of any consents required to enable us to perform the Services. You must arrange for all such consents to be obtained at your sole cost unless we have expressly agreed to perform this as your agent.
Code Compliance Certifications You are responsible for arranging all and any applicable code compliance certification for the works and Services at your sole cost unless we have expressly agreed to perform this as your agent.
Separate Contractors You are responsible for arranging all and any other separate contractors that are not within our scope of Services. You acknowledge that we shall only manage our nominated subcontractors and shall not be liable for any delays caused by failure to schedule your own Separate Contractors.
BUILDING WORKS CUSTOMER OBLIGATIONS
Site Preparation for General Building You must complete the following activities and/or works at your cost in advance of us commencing the Services unless expressly agreed to be within our scope of services. These include, but are not limited to:
a.Boundary Markings where our Services require boundaries to be followed, all survey pegs and boundary markings must be clearly visible and present; and/or
b.Removal of obstructions you must clear the Site access and work areas; and/or
c.Interior clearance where our Services require access through the interior of a dwelling or structure, the area is made clear and safe for performance of the Services; and/or
d.Electrical supply you must provide us with an electrical supply and other amenities reasonably required to perform our Services; and/or
e.Health and safety you must ensure the premises comply with all applicable laws, particularly those laws relevant to the health and safety of those persons performing the Services; and/or
f.Site Readiness you must ensure your site is in a state ready for the Services to be performed; and/or
g.
Excavation works all excavation, site scraping, downpipes, dewatering, ground levelling and other
necessary groundworks have been completed and performed; and/or
h.Ground levels all ground levels must be at the required levels indicated in our plans or to our specific instructions to enable the Services to be performed; and/or
i.Services trenching all service trenches must have been closed with appropriate compacted backfill where necessary for the performance of the Services; and/or
j.Roading surfaces all roading surfaces under your ownership (excluding those vested in local authorities) meet adequate strength ratings to support loads including vibration, weight and depth checks related to methods we may use in the performance of the Services; and/or
k.Other preparatory works any other preparatory work that we reasonably notify you to perform in advance of the Services.
Underground Services Detection Where we will perform Services that may be in and around underground services, you must arrange the following at your own cost and expense unless expressly agreed to be within our scope of services:
a.copies of up-to-date plans showing underground services locations; and
b.cable locations and mark-out to be performed at Site by qualified services location personnel; and
c.arrange and meet costs (if applicable) of a stand-over service where we identify the Site as high-risk of underground services strikes.
Industrial or Commercial Site Induction Where you are a commercial or industrial customer (including a head contractor or principal builder), you must provide us with all required site induction requirements and do all things to assist us to attend, complete and perform your site inductions. This includes, but is not limited to the following:
a.any applicable permit to work process and any related documentation to be signed by us; and
b.time sheeting and Site sign-in process applicable to your site; and
c.prohibited items list applicable to the site or area in which we are to perform Services; and
d.drug and alcohol testing requirements applicable to the Site including frequency; and
e.any other information or requirement specific to your Site.
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PAINTING SERVICES CUSTOMER OBLIGATIONS
Site Preparation for Painting You must complete the following activities and/or works at your cost in advance of us commencing the Services unless expressly agreed to be within our scope of services. These include, but are not limited to
a.Preparation of new surfaces completed where the painting surfaces will be new, re-installed or refurbished, these must be completely prepared, stripped and cleaned to be ready to be worked on by us unless expressly agreed to form part of our scope of services; and
b.Fitting and framing completed the surfaces to be worked on must have all installation of electrical sockets installed in final positions, architraves affixed, and window framing installed; and
c.Exterior Painting where we are painting the exterior of your premises, you must ensure you remove or prune trees or overhanging branches that contact the exterior surfaces.
PRICE AND PAYMENT
Prices The price for our Goods and Materials and Services shall be comprised of one or more of the following:
a.a quoted fixed price; or
b.a cost estimate only; or
c.a charge-up rate based on time and materials; or
d.a schedule of rates; or
e.a call-out fee.
Charge Up Services Where the cost to perform the Services are estimated on a time and materials basis, you shall be invoiced for the actual hours incurred to perform the Services up to the date of the applicable invoice together with the actual volume or quantity of Goods and Materials and materials required to meet the scope of Services.
Deposits Our Order will state if a deposit is required to be paid.
Prices for Goods or Materials The following applies to the price and payment for Goods and Materials:
a.Prices are Indicative all prices for Goods and Materials are issued as an indicative price and are not final until your Order is confirmed. Prices may vary up until you accept an Order due to cost fluctuations from suppliers, wholesalers or manufacturers; and
b.Delivery or storage fees may apply any applicable delivery or anticipated storage costs (where Goods and Materials are ordered in advance) may apply.
Call Out Fees Any call-out services are subject to the following:
a.Minimum Fees Apply a minimum hourly rate or call-out rate current as at the date of the Order shall be charged; and
b.
Out of Hours and Weekends out-of-hours, weekend or public holiday rates may apply and may incur a higher rate than our standard hourly rate or call-out rate; and
c.Travel we may add travel costs in addition to our call-out fees; and
d.No Show Fees where we attend your call-out and cannot access the Site, the full call-out fee plus applicable travel costs shall apply.
Commercial and Industrial Services The following applies to the price and payment for Services where you are a commercial or industrial customer:
a.Schedule of Rates all pricing and rates for Services are issued against any schedule of rates supplied to you (as adjusted from time to time); and
b.Different Rates May Apply you acknowledge that personnel, service types and machinery or equipment are subject to different rates; and
c.Site Induction Fee you acknowledge there may be an initial establishment fee payable to induct our personnel to your nominated Site(s). Additional establishment fees are chargeable per project or scope of work where there is more than one Site. Refresher fees may be payable if we regularly attend your Site(s); and
d.Stand Down Fees Where we arrive to Site as scheduled and we cannot access the Site after a reasonable waiting time, we reserve the right to leave the Site and you shall be charged a stand down fee equivalent to the full daily rate for all personnel deployed to your Site.
INVOICING
Amounts Owing Payable on Due Date All amounts specified in an invoice will require payment on the due date specified in the invoice (“Amounts Owing”).
Invoice Frequency We may invoice at any one or more of the following frequencies:
a.on completion of your Services; and/or
b.on ordering of Goods and Materials; and/or
c.at a specific frequency (weekly, fortnightly or monthly) for actual hours and materials costs incurred (“Charge-Up”); or
d.on completion of specified milestones or stages of the works or Services; or
e.as otherwise stated in our Order.
Retentions No retentions shall apply unless expressly agreed in advance. Where retentions are agreed to, the applicable
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regime in force under the Construction Contracts Act 2002 (CCA), in respect of retentions shall apply.
Payment Terms We may invoice you at any one or more of the following frequencies:
f.on completion of your Services; and/or
g.at the time you place an Order (including a Deposit); and/or
h.as agreed in your trade credit terms and conditions (trade customers only); and/or
i.as otherwise stated in our Order.
Date for Payment Our invoice will state our due date for payment, where not stated it is 7 (seven) calendar days from the date of invoice.
Credit Card Fees We reserve the right to add reasonable merchant fees, costs and expenses for processing credit or debit card transactions if you choose to pay by this method.
No Deferment of Final Balance You confirm and acknowledge that you cannot defer the payment of the final balance to be later than the due date stated in an invoice unless we agree to this as a Variation.
No Set Off or Deduction Amounts Owing which are due and payable must be made without set-off or deduction of any payment of any kind.
Overdue Amounts Owing Where the Amount Owing is not paid by the due date stated in an invoice and/or a Trade Credit Account statement has been issued and payment is not received by the applicable due date, this amount immediately becomes an “Overdue Amount Owing”. After a period of 5 (five) Business Days, if payment for an Overdue Amount Owing has not been received, we shall have the right to apply default interest at a rate of 5% per month on the Overdue Amount Owing (or such rate published on our invoices if different). This interest amount may accrue daily at that rate until payment is received and compound monthly at that rate if we elect to do this. This applies before and after any judgment (if applicable).
Invoices are Issued as Payment Claims Where this is a “construction contract’ as defined in the CCA, all invoices are issued as a payment claim in accordance with Part 2 of the CCA.
If You Dispute the Amount Owing If you receive an invoice and you consider you owe us a lesser amount than the sum stated as the Amount Owing, you must issue a valid payment schedule (a term used in s21 of the CCA) to us within five (5) Business Days of receiving our invoice (Payment Schedule). To meet the requirements of the CCA, you must ensure that your Payment Schedule details:
a.the amount you have calculated you think should be paid; and
b.how you have calculated this amount; and
c.why this amount is less than the Amounts Owing as stated in our Payment Claim invoice; and
d.your reasons for not paying the Amounts Owing.
Full Amounts Owing where no Payment Schedule Issued If you have not responded with a valid payment schedule in writing within the timeframe specified above, we are entitled to treat any amount stated in our invoice as an Amount Owing and it remains due and payable. If you do respond with a valid payment schedule stating a lesser amount or no amount, and we do not agree with you, we reserve our rights to use the dispute resolution procedures set out in these terms.
Duty to Pay Undisputed Amounts Owing Even when you issued a Payment Schedule, you acknowledge and agree that you will not be entitled to withhold payment in respect of any undisputed Amount Owing.
Late Payment Fees We reserve the right to apply a late payment fee at the amount specified on our Invoice in addition to or in place of any default interest stated in any clauses above where an invoice becomes an Overdue Amount Owing.
Rights to Commence Debt Collection or Recovery If an Overdue Amount Owing remains unpaid for 14 (fourteen) Business Days or more, and we have not agreed to any part-repayment or repayment plan, we reserve our rights to engage the services of a debt collection agency or solicitor to take proceedings to recover the Overdue Amount Owing. You will be liable for the costs incurred by us in the collection of any unpaid amounts including but not limited to legal costs (on a client-solicitor basis), debt collection fees (including commission) and related administration fees.
VARIATIONS
Variations to Price or Time We reserve the right to issue a Variation Order to change the price or extend the time to supply Goods and Materials or to complete the Services in any one or more of the following circumstances:
a.Inaccurate Plans where any additional measurements are required to be obtained by us to verify the accuracy and suitability of any plans or drawings supplied to us by you (or any representative) after you have supplied us with consented or approved plans; and/or
b.Revisions to plans, drawings or specifications where a change to any plans, drawings or specifications is made by you or any representative authorised by you after the date you place an Order; and/or
c.Site extension or change where an extension to the Site area or change to the Site location is requested; and/or
d.Goods and Materials selections changes where a change to selection of Goods and Materials is required or requested after you have confirmed your Order; and/or
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e.Change to commencement date where a change to the date for commencement agreed upon in our Order is requested; and/or
f.Site Preparation works incomplete where we are delayed or where we have to perform additional works to manage, assist with or co-ordinate any site preparation works which form your Customer Obligations; and/or
g.Undetected or unforeseen issues where the Services are required to be suspended or extended due to the discovery of hidden or unidentifiable difficulties (noting that we reserve our right to exercise our reasonable judgment as to what constitutes “hidden or unidentifiable difficulties” based on our industry expertise). These include, but are not limited to:
(i)poor weather conditions; and/or
(ii)limitations to accessing the Site to perform the Services; and/or
(iii)prerequisite work by a third party not being completed to prepare or erect the surfaces to be worked on; and/or
(iv)unsuitable or unsound primary surfaces (including prior paint layers that are unable to be removed with usual stripping techniques); and/or
(v)obscured building defects, latent defects that affect the suitability or the structural integrity of the surface to be worked on; and/or
(vi)hidden pipes, cables, or wiring that affect the suitability of the surface to be worked on; and/or
(vii)underground services encountered that were not detected by mark-out plans, cable location, pot holing or hand-digging and which affect the performance of the works; and/or
(viii)encountering hazardous waste or contaminated ground, soil, material or waste where we are performing underground works.
h.Costs fluctuations where the cost of materials, hired Plant and Machinery, labour units or other costs or expenses relating to supply of the Goods and Materials or Services increases beyond our control from the date of placing an Order; and/or
i.Materials substitutions where there is a requirement for us to substitute one or more Goods and Materials selections and the substitute agreed upon is a higher cost to the price indicated or estimated in our Order; and/or
j.Any other impacts where there is a requirement for us to extend the time or cost it takes to supply the Goods and Materials or complete the Services due to the impact of any other changes which are not listed above but which we deem in our reasonable opinion are a Variation.
Non-Conforming Products We reserve all rights to refuse to use products or materials that are supplied by you if they do not conform with applicable New Zealand regulations. We shall not be liable to you for any resulting delay to perform the Services, and any additional costs to source conforming products shall be a Variation.
All Rights Reserved to Decline a Variation We reserve our right to decline to treat this as a Variation. In some circumstances, we may elect to treat the Variation request as a new Order.
Written Variations We shall supply you with a written Variation Order stating the changes to the Order, how the price change has been or will be calculated, any extension of time required and state any additional customer obligations to accommodate the Variation. This will be supplemental and in addition to the Order and forms part of this Contract.
Verbal Variations Where necessary due to time constraints, you agree we may contact you to inform you of a Variation event by phone or in person if you are on Site. You further acknowledge and agree that in these circumstances, you confirm that we are entitled to invoice any additional sums as if it were a written Variation Order.
WARRANTIES
Consumer Guarantees Act The provisions of the Consumer Guarantees Act 1993 (CGA) apply unless you are a customer in trade or business, in which case the CGA does not apply.
Health & Safety at Work Act 2015 We shall comply with meeting our obligations for health and safety laws in the workplace including where we are acting as a sub-contractor for third party head contractor.
DEFECTS
Residential Building Work Implied Warranties Nothing in this Contract shall affect any implied warranties relating to defects under ss 362l to 362k of the Building Act 2004 and this Contract is subject to the exceptions in that Act.
Defective Goods and Materials You must inform us in writing of delivery or installation of any alleged defect, shortage in quantity, damage or failure to comply with the description or quoted specifications of Goods and Materials. The following shall apply:
a.Inspection we are entitled to inspect the Goods and Materials within a reasonable time to determine if a defect is present; and
b.Remedies We can choose (at our sole discretion) to either replace or repair the Goods and Materials; and
c.Original Manufacturer Warranty We shall liaise with any original equipment manufacturer to procure replacement Goods and Materials under warranty or arrange a repair at their expense; and
d.
No refund We are not obliged to provide a refund for defective Goods and Materials unless required by law.
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Services You must inform us in writing of any defect in our workmanship for Services. The following shall apply:
a.Inspection we are entitled to inspect the workmanship (with an independent third-party where we choose this) within a reasonable time to determine if a defect is present; and
b.Remedial Works If a defect is present, we shall either remedy the defective workmanship by a re-performance of the Services or agree an alternative remedy with you.
EXCLUSIONS OF WARRANTIES
No Delay Fees or Liquidated Damages You are not entitled to claim any delay fees, liquidated damages or other costs or expenses related to any delay in the supply of Goods and Materials or the performance of Services.
Exclusion of Warranties Any warranty or guarantee owed by us to you under relevant laws or under this Contract will not apply where:a.
No Defect Reported you have not informed us of the defect within the time frame stated in this Contract; and/or
b.Customer Supplied Materials or Products where you supply any fittings or materials for your Services, these are not guaranteed by us and we shall not be liable for any delays or additional costs and expenses incurred by you due to incorrect dimensions, colour variations, finishes, inherent defects, or any other reason that results in your customer supplied materials not being suitable or fit for purpose. To avoid doubt, customer supplied materials are not ‘Goods and Materials’ under this Contract; and/or
c.Accepted Tolerances where accepted industry tolerances listed in these terms are present or detected; and/or
d.Election to Reduce Recommended Coats where the quality of any painting only Services is compromised where you have elected not to follow our recommendations as to the number of coats of paint or product required to obtain the desired final finish (including, where you have chosen to accept a reduced Price based on fewer coats of paint or product); and/or
e.Other Tradespersons Damage where any loss or damage whatsoever to the works performed by us that is caused by any other tradesmen during and after the completion of the Services; and/or
f.Other the fault or defect is a result of:
(i)something done by you or someone else, and not by us or our approved contractors; and/or
(ii)you or your representatives not maintaining any resulting structure, system or dwelling (where applicable) in a sound and reasonable condition in such a way that it caused the defect; and/or
(iii)something beyond human control that occurred after completion of our Services or works, for example an extreme weather event or natural disaster or natural event such as an earthquake, lahar or tsunami that causes the defect; and/or
(iv)any part of the Goods and Materials installed as part of the Services being misused, abused, neglected, or damaged after installation; and/or
(v)the Goods and Materials not being maintained or in the case of painting service only, not left to cure or dry in accordance with any care or guarantee documents supplied by us to you; and/or
(vi)the Goods and Materials being repaired, modified, reinstalled, or repositioned by anyone other than us or our approved contractors.
Accepted Tolerances Painting Services You agree that there are accepted variances and tolerances to completed Services and Goods and Materials related to painting services and the presence of such will not constitute a breach of any quality guarantee we offer to you at law or under this Contract. These include, but are not limited to, the following:
a.Colour perception variation which is not a result of incorrect selection of a paint or a product by us (to avoid doubt, this includes where changes to interior lighting or sunlight angles create a shadow or reveal uneven underlying surfaces); and/or
b.Colour variations in paint finish due to manufacturer mis-tinting that could not be visually identified during a spot test; and/or
c.Timber grain variances in timber-based product varnishes, staining or other timber-based finishes; and/or
d.Variations in shade tone, colour, texture, markings, veining, surface and finish, and contain natural fissures, occlusions, and indentations; and/or
e.Fade or colour change over time; and/or
f.expansion, contraction or distortion as a result of exposure to heat, cold, weather; and/or
g.marking or staining if exposed to certain substances; and/or
h.damage or disfigurement by impact or scratching,
i.inferior existing paintwork is present resulting in paint or other product applied by us failing to adhere, cure, bond and/or has bonded to the existing paintwork resulting in flaking, cracking or blemishes to the final surfaces; and/or
and where this occurs, we are not liable under any warranty or guarantee offered under this Contract or imposed at law.
Manufacturer Warranty Claims If Warranty Notice Period has ended and there is a manufacturer product warranty still
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available for any component part of the Goods and Materials included as part of the Services, you must liaise with the manufacturer for the duration of any guarantee period offered by them.
COMPLIANCE WITH LAWS
Statutes and Regulations All parties shall comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities that may be applicable to the Services, including any WorkSafe guidelines regarding health and safety laws relating to building/construction sites and any other relevant safety standards or legislation.
Licenses and Approvals You are responsible for obtaining all licenses, approvals, applications and permits that may be required for the Services at your sole cost and expense.
RISK
Risk in Goods and Materials Passes to You on Completion All risk of damage or loss to any Goods and Materials shall pass to you on delivery of the Goods and Materials or completion of the Services (where Goods and Materials have been installed at your Site as part of the Services). The responsibility to insure those Goods and Materials shall pass to you.
Risk of Plant, Equipment or Goods and Materials left at Site Where you are providing the Site and offer storage facilities for our plant, equipment or any Goods and Materials, you must ensure this is adequately secure.
Our Insurance Obligations We warrant that we hold insurance for the performance of our Services.
Risk of Damage or Wear/Tear to Gardens, Roof Edging and Trees Where we are performing exterior painting services or general building services in the exterior of your Site, the following risks rest with you and we shall not be liable for any reinstatement works or costs or expenses:
a.damage or tread marks caused to gardens, shrubs, planting or other exterior ground surfaces; and/or
b.paint splashes to planting, trees or other ground surfaces where you did not reasonably cover or protect them; and/or
c.scuffs, marks or imprints remaining from scaffolding rigging erected for the performance of the Services.
TITLE TO GOODS AND MATERIALS, PLANT AND EQUIPMENT
Retention of Title to Goods and Materials We own the Goods and Materials (if any) supplied to you until you have paid for them in full. No beneficial or equitable ownership in the Goods and Materials will pass to you until full and final payment of the total price for the Goods and Materials has been received by us, pending which you hold the Goods and Materials as trustee and agent for us.
Right to Enter Site to Seize Goods and Materials if there are Amounts Owing If you fail to comply with this Contract in relation to payment of Amounts Owing then we may enter the
Site to seize possession of the Goods and Materials and retain, sell or otherwise dispose of such Goods and Materials. By entering into this Contract, you acknowledge and agree that you grant us or our agents or approved contractors an unrestricted right and licence to enter the Site without notice to identify and remove the Goods and Materials that we still own.
Title to Plant, Machinery and Equipment All title to any plant, machinery and equipment used to perform the Services and which may be left at the Site during the performance of the Services remain our exclusive personal property and no rights, title or interest shall pass to you.
SECURITY AND CHARGE
Security Charge In consideration of us agreeing to supply the Goods and Materials and Services, you charge all of your rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by you either now or in the future, and you grant a security interest in all of your present and after-acquired property, to secure the performance by you of your obligations under this Contract (including, but not limited to, the payment of any money or Amounts Owing).
Indemnity You indemnify us from and against all of our costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising our rights under this clause.
Appointment as Attorney You irrevocably appoint us and each director (if more than one and where we are incorporated) as your true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause including, but not limited to, signing any document on your behalf.
PERSONAL PROPERTIES SECURITIES ACT 1999 (PPSA)
This Contract is a Security Agreement You accept that this Contract constitutes a security agreement for the purposes of the PPSA.
Retention of Title creates a Purchase Money Security Interest You agree that clause (Retention of Title to Goods and Materials) grants us a Purchase Money Security Interest (as defined in the PPSA) in all present and after acquired Goods and Materials as security for payment of the purchase price for the Goods and Materials until such amount is paid in full.
Our Right to Register a Financing Statement You consent to us effecting a registration of a financing statement in respect of the security interest created by this Contract on the Personal Property Security Register (PPSR) under the provisions of the PPSA (see https://ppsr.companiesoffice.govt.nz/ for more information). Where we have rights in addition to those in Parts 9 of the PPSA, you agree that those rights shall continue to apply.
Waiver of Your Rights under the PPSA You waive the following rights under the PPSA:
a.To receive a verification statement you waive the right to receive notice of a verification statement under s148 of the PPSA in relation to any registration we make on
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the PPSR to secure our interest over the Goods and Materials; and
b.Notice rights you further agree that you waive the rights under ss114(1)(a), 116, 120(2), 121, 125, 129 and 131 of the PPSA as they relate to notices to you regarding our rights to remove our Goods and Materials and re-sell these. To the extent permitted by law this Contract excludes any other provisions of the PPSA which may be excluded in our discretion, and which would otherwise confer rights on you.
What you Must Do to Assist with a PPSR Registration You undertake to:
a.promptly do all things, execute all documents and/or provide any information which we may reasonably require to enable us to register a financing statement or charge on the PPSR; and
b.not consent to or enter into any agreement which permits any supplier or other person to register a security interest in respect of the Goods and Materials without our prior written consent.
Right to Enter Site You irrevocably grant us the right to enter your Site without notice, and without being in any way liable to the you or to any third party, if we have the rights to exercise any of our rights under section 109 of the PPSA in respect of our Goods and Materials. You shall indemnify us from any claims made by any third party as a result of such exercise. Any costs and expenses in the performance of using our rights under s109 of the PPSA shall be added to any Amounts Owing.
SUSPENSION AND TERMINATION FOR DEFAULT
Suspension of Services for Overdue Amounts Owing If there is an Overdue Amount Owing and such default continues for five (5) Business Days then we shall be entitled to immediately suspend the Services without notice. Where this is a commercial “Construction Contract” as defined under the CCA, s24A of the CCA shall apply.
Termination of Services for Default Without prejudice to our other remedies at law, we reserve our rights to terminate this Contract (which includes any part of the Services that remain unfulfilled), if any one or more of the default events listed below occurs:
a.Deposit Not Paid you fail to pay a Deposit to confirm acceptance of your Order; and/or
b.Amounts Owing Not Paid you fail to pay any sums that have become an Overdue Amount Owing; and/or
c.Trade Account in Arrears you are a trade customer, and you are in breach of any terms of your credit application; and/or
d.
Insolvency you become insolvent or bankrupt, convene a meeting with your creditors or make an assignment for the benefit of your creditors or a receiver, manager, or liquidator (provisional or otherwise) or similar person is
appointed in respect of you or your business or its assets; and/or
e.No Access to Site we or our approved contractors are denied access to or are unable to access the Site to carry out the Services for more than ten (10) Business Days; and/or
f.Unsafe Site where we or our approved contractors assess that the Site is unsafe and to continue to work at the Site would breach applicable health and safety legislation and you cannot or will not make the Site safe.
CANCELLATION
Your Rights to Cancel this Contract You may choose to cancel an Order provided you inform us in writing with no less than ten (10) Business Days’ notice prior to the scheduled date for commencement of the Services or us placing an order for Goods and Materials. Where you elect to terminate the Services after the date of commencement, this is at our sole discretion. In either event, the clauses below in relation to sums for Amounts Owing shall apply.
Our Rights to Cancel this Contract We may cancel an Order at our discretion. We shall provide you with at least ten (10) Business Days’ notice of such cancellation. We shall not be liable for any loss or damage whatsoever arising from such cancellation.
AMOUNTS PAYABLE ON TERMINATION OR CANCELLATION
Amounts Owing up to Termination Date All Amounts Owing for Goods and Materials or Services (as applicable) shall become immediately due and payable if either party exercises their rights to terminate or cancel this Contract, including (but not limited to):
a.Partly Performed Services any part-performance of Services completed up to the date of termination; and/or
b.Goods and Materials the price for Goods and Materials already ordered as at the date of termination which cannot be returned to a supplier or are non-stocklist items or are custom orders; and
c.Restocking Fees any reasonable restocking fees to return Goods and Materials, cancel orders for Goods and Materials or liaise with suppliers regarding Goods and Materials.
LIMITATION OF OUR LIABILITY
Exclusion of Our Liability To the fullest extent permitted by law, we exclude all liability to you for:
a.Loss or Expenses any direct or indirect claims, expenses, losses, damages and costs (including any incidental, special and/or consequential damages or loss of profits, loss of anticipated savings or loss of expenses suffered or incurred by you resulting (either directly or indirectly) in connection with the Services; and
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b.Delays to Performance of Services any claims, losses, damages, and costs (direct, indirect, or anticipated) incurred by you for the Services not taking place as planned. If the Services are not completed by the anticipated or proposed date advised by us, you acknowledge and agree that you shall not be entitled to any damages (liquidated damages, or any other type of damages or costs) in respect of the delay; and
c.Damage to Underground Services Losses or fees or fines incurred due to damage caused by us to underground services where you were responsible for the appropriate mark-out or location of such underground services.
When Limitations of Liability Cannot Apply These clauses do not limit our liability to the extent that it cannot be limited at law or arises out of or in connection with any wilful default, fraud or criminal conduct by us.
Limit of Liability Where we are found to be liable to you, our total aggregate liability to you arising out of or in connection with this Contract whether under any indemnity, in contract or tort (including negligence) by statute or otherwise at law or in equity is limited to the total price of the Goods and Materials or Services or the actual direct costs incurred by you (whichever is the lower amount).
DISPUTES
Details of the Dispute must be Supplied If you or we consider that a dispute has arisen in relation to any matter governed by this Contract, that party must give the other party written notice outlining the basis of the dispute (Dispute Notice).
Dispute Resolution If the dispute is not resolved by discussion, meeting and/or other informal means within ten (10) Business Days of the date of the Dispute Notice, either party may seek dispute resolution via the adjudication process where this is a “construction contract” as defined under the CCA or via mediation for all other contract types.
Obligations Continue If there is a Dispute, each party will continue to perform its obligations (including paying Amounts Owing) under this Contract as far as practical given the nature of the dispute.
Taking court action Each Party agrees not to start any court action in relation to a dispute until it has complied with the process described in this clause, unless that party requires urgent relief from a court.
Interlocutory Relief Nothing in this Contract shall affect either party’s right to seek urgent interlocutory relief.
Costs and Expenses Each party will pay its own costs of dispute resolution under this Contract.
PRIVACY
Use of Personal Information You authorise us and our agents to collect, use, retain and disclose “personal information” (as defined in the Privacy Act 2020) about you and your personnel that you or they provide to us for the following purposes:
a.Credit checks assessing creditworthiness and exercising our rights and/or performing our obligations under this Contract; and
b.Marketing direct marketing purposes (including by email and other electronic means), unless you notify us that you do not wish to receive direct marketing from us; and
c.Credit reporting using the services of credit reporting and debt collection agencies and you consent to us disclosing personal information (including any information about default and repayment history) to a credit reporter, who may hold that information and use it to provide its credit reporting services; and
d.PPSA registration registering any Security Interest under this Contract; and
Related Companies the use or transfer of personal information to a Related Company (as such term is defined by Companies Act 1993) in connection with the performance of our obligations or exercise of our rights under this Contract.
Authority and Consent The clause above is authority and consent from you in accordance with sections in Part 3, Part 7, subpart 1 and all other relevant sections in the Privacy Act 2020.
Right to Access Personal Information You (if you are an individual) have the right under sections in Part 4, subpart 1 and Part 4, subpart 2 of the Privacy Act 2020 to access, and request correction of, any of your personal information held by us and if you provide any personal information about a third party (including your personnel) to us, you confirm that you are authorised to do so by the relevant individual and you have informed the relevant individual that they have the right to contact us to access and, if applicable, request correction of any personal information that we hold about them.
NOTICES
Serving Notices Any written notice given under this Contract shall be deemed to have been given and received as follows:
a.by handing the notice to the other party, in person; or
b.by leaving it at the registered address of the other party; or
c.by sending it by registered post to the address of the other party; or
d.if sent by email to the other party’s last known email address.
GENERAL
No Waiver The failure by either party to enforce any provision of this Contract shall not be treated as a waiver of that provision, nor shall it affect that party’s right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the
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validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
Severability If and to the extent any provision or part of a provision of this Contract is illegal or unenforceable, such provision or part of a provision will be severed from this Contract and will not affect the continued operation of the remaining provisions of this Contract.
Entire Agreement This Contract sets out the entire agreement between the parties.
Construction Contracts Act Where the context requires, this Contract is a “construction contract” as defined under the CCA.
Electronic Acceptance The parties agree that any legal requirement may be met by using electronic means in accordance with the Contract and Commercial Law Act 2017. In this clause the term “legal requirement” has the meaning given to it by section 219(2) of the Contract and Commercial Law Act 2017.
Changes to Terms We may amend these general terms and conditions for subsequent future Contracts with you by disclosing the new terms to you in writing. These changes shall be deemed to take effect from the date on which you accept such changes, or otherwise at such time as you make a further request for us to provide Goods and Materials or Services to you.
Precedence If there is any conflict or difference between the documents forming the Contract then the order of precedence is:
a.a Variation Order; and
b.any specific departures to these terms as documented in a separate written contract; and
c.the Order.
Remedies The rights, powers and remedies provided in these terms are cumulative and are in addition to any right, powers or remedies provided by law.
Governing Law This Contract shall be governed by the laws of New Zealand and the parties irrevocably submit to the exclusive jurisdiction of the courts of New Zealand.
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