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Terms of Trade
1. DEFINITIONS
1.1. If applicable, capitalised terms have the meaning given to them in this
Agreement. In addition, the following definitions apply in this Agreement:
1.2. ‘Contractor,’ ‘we’, or ‘us’ means The Boyz Services Limited trading as
Centrescapes (our successors and assigns), or any person acting with
the authority of The Boyz Services Limited.
1.3. ‘Client,’ ‘you’, or ‘your’ means the Client purchasing Materials or Services
from us or any person acting on your behalf (including authorised agents).
1.4. ‘Services’ means all Services provided to you (including landscaping,
construction, excavation, planting, paving, concrete, or any provision of
Materials) as specified in any documentation or otherwise provided to you
by us under this Agreement.
1.5. ‘Worksite’ means the address or location you nominate for us to provide
the Materials or Services.
1.6. ‘Materials’ means all Materials required to complete the Services.
1.7. ‘Price’ means the Price of the Services (in accordance with clause 6).
1.8. ‘Equipment’ means all Equipment (including any accessories) supplied on
hire to you (and where the context permits, shall include any incidental
supply of Services).
1.9. ‘Agreement’ means these terms & conditions of trade, as may be
amended from time to time (including our privacy policy and any orders,
purchases or schedules as applicable).
1.10.‘Amounts Owing’ means any amount you owe to us, from time to time,
including the Price, any interest payable, any of your liability under this
Agreement and any enforcement expenses incurred by us in seeking
payment of any Amounts Owing by you.
1.11.‘Business Day’ means Monday to Friday, excluding public holidays in
New Zealand.
1.12.‘Confidential Information’ means all information that could be reasonably
regarded in the circumstances as confidential, including information that
relates to the business, interests or affairs of a party, this Agreement, the
Materials or Services (as applicable), and intellectual property rights, but
excludes information which is:
(a)in the public domain, other than as a result of a breach of this
Agreement;
(b)in the possession of a party prior to the commencement of this
Agreement without any obligation of confidentiality; and
(c)is independently developed or acquired by a party prior to the
commencement of this Agreement without relying on information that
would itself be Confidential Information.
1.13.‘Event of Default’ means your failure to comply with this Agreement
(including your obligations in clause 6).
1.14.‘Insolvency Event’ means an event of insolvency, including bankruptcy;
the appointment of an insolvency administrator, manager, receiver or
liquidator; any action related to winding up or making a material
arrangement in relation to creditors; applying for any type of protection
against creditors; being unable to pay your debts as they fall due; or
taking or suffering any similar or analogous action in any jurisdiction as a
consequence of debt.
1.15.‘Personnel’ means directors, officers, employees, agents and
contractors.
1.16.‘CCLA’ means the Contract and Commercial Law Act 2017.
1.17.‘PPSA’ means the Personal Property Securities Act 1999.
1.18.‘CCA’ means the Construction Contracts Act 2002.
1.19.‘Security Agreement’ and ‘Security Interest’ have the meanings given to
them in Part 2, sections 16 and 17 of the PPSA.
1.20.‘Regulator’ means any authority, commission, government department,
court, tribunal, or similar having regulatory or supervisory authority over
the parties or Services.
1.21.‘Related Company’ has the meaning given to it in Part 1, section 2(3) of
the Companies Act 1993.
2. INTERPRETATION
2.1. In this Agreement, unless the context otherwise requires:
(a)headings are for convenience only and do not affect interpretation;
(b)a reference to legislation includes all regulations, orders, instruments,
codes, guidelines or determinations issued under that legislation or any
modification, consolidation, amendment, re-enactment, replacement or
codification of it;
(c)a reference to ‘in writing’ includes by email;
(d)the words ‘include’ or ‘including’ or similar expressions are to be
construed without limitation;
(e)a reference to a party shall include that party’s successors, permitted
assigns and substitutes; and
(f) a word importing the singular includes the plural and vice versa.
3. ACCEPTANCE
3.1. All orders are subject to our acceptance. We may (at our sole discretion)
accept any order in whole or part by issuing an invoice in respect of the
applicable Services, delivering the Materials or Services or otherwise
confirming the order in writing.
3.2. You acknowledge and accept that:
(a)the supply of Materials on credit shall not take effect until you have
completed a credit application with us and it has been approved with a
credit limit established for the account;
(b)if the supply of Materials requested exceeds your credit limit or the
account exceeds the payment terms, we reserve the right to refuse
further delivery;
(c)where necessary, this Agreement will be modified or amended to the
extent required to comply with any applicable legislation; and
(d)this Agreement shall supersede any other document or agreement
between both parties.
3.3. If you place an order for or accept any Services from us, you are taken to
accept this Agreement and are bound jointly and severally (including if
you are part of a trust, in which case you shall be bound in your capacity
as a trustee). You do not need to sign any formal documentation to
indicate your acceptance. It will be assumed from you continuing to order
any Materials or Services.
3.4. Your acceptance to this Agreement shall continue to all future orders,
purchases or schedules (as applicable), and this Agreement will be, or is
deemed to be incorporated into, and form part of, each order, purchase or
schedule as if this Agreement was set out or implied therein in full.
3.5. Both parties shall accept electronic signatures (including acceptance by a
receiving mail server) provided both parties have complied with sections
in Part 4, subpart 3 and all other relevant sections in Part 4 of the CCLA.
4. AUTHORISED AGENTS
4.1. We are under no obligation to enquire as to the authority of any person
placing an order on your behalf.
4.2. If you introduce any third party to us as your authorised agent, you agree
that agent shall have your full authority to order any Services on your
behalf, and such authority shall continue until the Services have been
completed or you notify us in writing that the third party is no longer your
authorised agent.
4.3. Where your authorised agent is to have only limited authority to act on
your behalf, you must explain the parameters of the limited authority to us
in writing.
5. CHANGES TO DETAILS
5.1. You agree that you will give us (addressed to the financial controller or
equivalent) not less than fourteen (14) days prior written notice of any
proposed change to your name or any other changes to your details
(including changes to the ownership of the company, address, email,
contact phone or business structure).
5.2. You acknowledge and accept that if you fail to comply with clause 5.1,
you will breach this Agreement and shall be liable for any expense or loss
of profit suffered by us (including any Related Company).
6. PRICE AND PAYMENT
6.1. You will pay us the Price set out in any quotation or documentation that
we provide to you under this Agreement, plus any ‘Goods and Services
Tax’ (as defined and imposed in Part 2, section 8(1) of the Goods and
Services Tax Act 1985 (GST)).
6.2. Unless otherwise agreed by us in writing, the Price shall be:
(a)indicated on invoices provided to you in respect of the Services;
(b)our estimated Price (subject to clause 7), with the final Price being
ascertained upon completion of the Services (and any variance in the
estimated Price of more than ten percent (10%) will be subject to your
approval before proceeding with any further Services); or
(c)our quoted Price, which will be binding, subject to your acceptance of
our quotation in writing within thirty (30) days.
6.3. If the Price is not set out in quotations or other documentation, the Price
for the relevant Materials or Services will be at our standard rate
according to our current Price list or at a rate notified to you.
6.4. The Price will be payable by you on the dates determined by us (at our
sole discretion), which may be:
(a)on delivery of the Materials or completion of the Services;
(b)by way of progress payments in accordance with our agreed progress
payment schedule, and such progress payment claims may include the
value of any authorised variations and the value of any Materials that
have been delivered to the Worksite (whether installed or not);
(c)seven (7) days following the date of any invoice given to you by us if
there is no notice to the contrary.
6.5. No allowance has been made in the Price for the deduction of retentions.
In the event that retentions are made, we reserve the right to treat all
retentions as placing your account into default.
6.6. Where we pay any subcontractor’s account on your behalf, you agree to
reimburse us for the payment of the subcontractor's account within seven
(7) days (unless otherwise agreed in writing).
6.7. We reserve the right at any time to alter any Price lists. Any alterations to
any Price list will be effective from the date specified by us and apply to
all orders or purchases we accept on or after that date.
6.8. Payment may be made by cash, electronic/online banking, or any other
method we agree to in writing.
6.9. Payment in any form other than cash shall not be taken to be payment for
the Amounts Owing, and all ownership rights of the Materials or Services
remain with us until that form of payment has been cleared and received
(in accordance with clause 17.1).
6.10.We may require that you pay a deposit of thirty percent (30%) (or any
amount we specify) or provide a guarantee as security for paying any
Amounts Owing.
6.11.At our sole discretion, we may allocate any payment from you towards
any invoice that we determine and may do so at the time of receipt or any
time afterwards. On any default by you, we may reallocate any payments
previously received and allocated. In the absence of any payment
allocation by us, payment will be deemed to be allocated in such a
manner that preserves the maximum value of our Security Interests.
6.12.You shall not withhold payment of any Amounts Owing because part of
the Services are disputed, and in the event that any of the Services are
disputed, you agree that you will:
(a)perform all of your obligations to us under this Agreement and pay in
full any Amounts Owing except for the amount that is in dispute; and
(b)provide a specific and detailed explanation of the dispute in writing to
us within seven (7) days from delivery.
6.13.If an Insolvency Event occurs, all Amounts Owing will (whether or not
due for payment) immediately become due and payable.
7. VARIATIONS
7.1. We reserve the right to change the quoted Price if:
(a)any information supplied by you is inaccurate;
(b)you request any change to plans, specifications or the Services that
were initially quoted;
(c)additional Services are required due to the discovery of hidden or
unidentifiable difficulties (including poor weather conditions, limitations
in access to the Worksite, inaccurate measurements or specifications
supplied by you, safety considerations, availability of Equipment,
additional excavation required, additional labour where concrete is
required to be manually wheelbarrowed from the delivery vehicle,
ground conditions are unsuitable or reactive, hard rock or other barriers
below the surface) which are only discovered on commencement of the
Services; or
(d)the cost of labour or Materials increase due to changes beyond our
control (including any taxes imposed by any Regulator, overseas
transactions that may increase due to variations in foreign currency
rates of exchange or international freight and insurance charges).
7.2. The Price will be adjusted to reflect any extra cost or expense we incur
due to any instruction received from you (or your authorised agent) or any
action or inaction on your part.
7.3. You agree that where earthmoving or excavation work has been provided
by a third party (you have engaged) and such work is found to be
defective or not up to standard, we reserve the right to charge a variation
to remedy such work.
7.4. Where you request us to estimate the quantity of the Materials to be
supplied from sketches, plans, schedules, specifications or otherwise, you
agree to pay for any variation between the estimate and the actual
quantities provided, and this Agreement shall be deemed to be adjusted
accordingly to reflect the increased Price.
8. PROVISION OF SERVICES
8.1. We will deliver the Materials or Services to the delivery location that we
each agree to in writing, and if the delivery location is at your premises
(subject to clause 25), you will provide us and our Personnel with suitable
access to the premises, together with any amenities reasonably required
by us or our Personnel to perform delivery of the Materials or Services.
8.2. Where we deliver the Materials or Services, you will:
(a)ensure we have all-weather access to the Worksite to enable us to
deliver the Materials safely;
(b)locate, mark and advise us of all pipes, cabling and other utilities that
are on, near, or adjacent to the delivery point, and of any actual or
possible hazards on the land where the Materials are to be delivered;
and
(c)indemnify us against any costs, claims and damages incurred in the
delivery of the Materials (including any cleaning, repair, damage to the
site or delivery Equipment and returning the delivery vehicle to the
road, provided we have acted with reasonable care and skill).
8.3. It is further agreed that:
(a)the final location of the exact excavation site must be determined by
you and marked at the Worksite (and is your sole responsibility);
(b)when delivering Materials, if the discharge of such Materials is not
completed within thirty (30) minutes after arrival on the Worksite, we
shall charge any additional time at our regular hourly rate; and
(c)you shall be responsible for: (i) maintenance, cleaning and the repair of
entry and exit points from the Worksite over any third-party property or
public road. We will accept no liability for any maintenance, cleaning or
repair of entry and exit points from the Worksite, including any local or
government charges or fines relating to mud or debris on the road; and
(ii) any fees, penalties or infringements (whether imposed by any
Regulator or court) incurred by us as a result of your failure to receive
delivery of the Materials.
8.4. You shall take delivery of the Materials tendered notwithstanding that the
quantity so delivered shall be either greater or lesser than the quantity
purchased, and you agree that:
(a)such discrepancy in amount shall not exceed five percent (5%); and
(b)the Price shall be adjusted to reflect the value that has been delivered.
8.5. The final decision on entry onto any site will be at our sole discretion, and
failure to deliver any Materials will not be deemed a breach by us of this
Agreement.
8.6. If you refuse all or part of any order upon delivery at the site, you shall be
bound to make full payment for the Materials, together with all disposal
costs in respect of the returned Materials.
8.7. Our responsibility is to ensure that the Services start as soon as possible.
However, the Services commencement date will be postponed, and the
completion date will be extended by whatever time is reasonable if the
provision of the Services is delayed by any event beyond our control,
including:
(a)poor weather conditions affecting the commencement date; or
(b)your failure to obtain required consents, have the Worksite ready or
make a selection of Materials required to complete the Services.
8.8. If we are unable to supply the Services as agreed solely due to any action
or inaction of you, then we shall be entitled to charge a reasonable fee for
the re-supplying of Services at a later time and date (including storage of
the Materials if applicable).
8.9. Any time specified by us for delivery of the Materials is an estimate only,
and we will not be liable for any expenses or losses incurred due to your
reliance on our estimated time for delivery, nor can you cancel any order
for any delay in delivery that is less than fourteen (14) days after our
estimated time for delivery (or any delay in delivery due to any event
beyond our control).
8.10.We may deliver the Materials in separate instalments, which will be
invoiced and paid as individual transactions under this Agreement.
9. ERRORS AND OMISSIONS
9.1. You agree that we have no liability regarding any errors or omissions:
(a)resulting from any inadvertent mistake made in the formation or
administration of this Agreement; or
(b)contained in any documentation supplied to you regarding the
Services.
9.2. If such an error or omission occurs that is not attributable to our
negligence or wilful misconduct, all obligations or rights under or in
connection with this Agreement shall continue in full force and effect.
10. DEFECTS
10.1.You shall inspect all Materials or Services immediately on delivery and
shall notify us of any alleged defect, shortage in quantity, damage or any
other issue within seven (7) days from the date of delivery.
10.2.If you do not notify us within the seven (7) day timeframe (in accordance
with clause 10.1), the Materials or Services shall be presumed to be free
of defects, and we will consider all Materials or Services to be supplied
free from any defect or other issue (subject to clause 14.1).
10.3.You shall allow us to inspect the Materials or Services within fourteen
(14) days (from the date of delivery) if you believe the Materials or
Services are defective.
11. RETURNS AND WARRANTIES
11.1.We will not accept the return of Materials for credit (unless agreed in
writing).
11.2.Subject to the conditions of the warranty set out in clause 11.3, we
warrant that if any defect in any of our workmanship becomes apparent
and is reported to us within six (6) months from the date of delivery (time
being of the essence), we will either (at our sole discretion) replace or
remedy the defect.
11.3.The conditions applicable to the warranty given under clause 11.2 are:
(a)the warranty shall not cover any defect or damage which may be
caused by or arise through: (i) failure on your part to properly maintain
any Materials or Services; (ii) failure on your part to follow any
instructions or guidelines we provide; (iii) any use of the Materials or
Services for any purpose other than the appropriate applications
specified on the quote, invoice or any other documentation supplied to
you; (iv) the continued use of any Materials or Services after any defect
becomes apparent (or would have become apparent to a reasonably
competent operator); (v) fair wear and tear; or (vi) any accident or act
of God;
(b)we shall not be liable to compensate you for any delay in remedying
the defect or in properly assessing your claim regarding the defective
Services; and
(c)the warranty shall cease, and we shall in no circumstances be liable
(including the warranty set out in clause 11.2) if the defect is repaired,
altered or overhauled by any third party without our consent.
11.4.For Materials not manufactured by us, the warranty shall be the current
warranty provided by the manufacturer of the Materials, and we shall not
be bound by any condition, representation or warranty other than that
which the manufacturer of the Materials gives.
11.5.For any Materials not manufactured by us, the warranty shall be the
current warranty provided by the manufacturer, and we shall not be bound
by any condition, representation, or warranty other than what the
manufacturer offers.
12. PRIVACY ACT 2020
12.1.You authorise us and our agents to collect, use, retain and disclose
‘personal information’ (as defined in Part 1, section 7 of the Privacy Act
2020) about you and your Personnel that you or they provide to us for the
following purposes:
(a)exercising our rights or performing our obligations under this
Agreement;
(b)using the services of credit reporting and debt collection agencies, and
you consent to us disclosing personal information (including any
information about an Event of Default or repayment history) to a credit
reporter, who may hold that information and use it to provide its credit
reporting services;
(c)registering any Security Interest under this Agreement;
(d)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
(e)the use or transfer of personal information to a Related Company in
connection with the performance of our obligations or exercise of our
rights under this Agreement.
12.2.Clause 12.1 is authority and consent from you in accordance with
sections in Part 3 and all other relevant sections in the Privacy Act 2020.
12.3.You (if you are an individual) have the right under information privacy
principles 6 and 7, and 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.
12.4.If the Services are expected to involve the sharing of any data sets, or
other personal information, to you by us or us to you, we will enter into a
separate data protection agreement with you.
12.5.If you do not provide the personal information requested by us, we may
not be able to perform our obligations under this Agreement.
13. CONFIDENTIAL INFORMATION AND INTELLECTUAL PROPERTY
13.1.Each party must keep confidential all Confidential Information, however,
nothing in clause 13 prevents a party from disclosing Confidential
Information:
(a)in the circumstances expressly provided for in this Agreement;
(b)if the disclosure is required by law or Regulator (but only to the extent
necessary); or
(c)if the disclosure is reasonably required to enable a party to perform its
obligations or enforce its rights under this Agreement.
13.2.We may disclose Confidential Information to a Related Company and
their Personnel on a ‘need to know’ basis, provided that person is under a
duty to keep the Confidential Information confidential in accordance with
this Agreement.
13.3.We own all right, title and interest (including all intellectual property
rights) in the Materials or Services at all times.
13.4.Any new intellectual property created as a result of, or in connection with,
the provision of our Materials or Services will be owned by us (unless
otherwise agreed in writing).
13.5.If, notwithstanding clauses 13.3 and 13.4, any intellectual property rights
in any of our Materials or Services vests in you, you assign those
intellectual property rights to us with effect from creation and agree to do
all things reasonably required by us to give effect to such assignment.
13.6.You warrant that the use by us of any designs, instructions, plans,
specifications or other technical information provided by you will not
infringe the intellectual property rights of any other person and indemnify
us against any expenses or losses (including full legal costs on a solicitor
client-basis) that we may incur or suffer in the event of any such
infringement.
14. CONSUMER GUARANTEES ACT 1993 & FAIR TRADING ACT 1986
14.1.Subject to clause 14.2, nothing in this Agreement will affect any rights
you may have as a ‘consumer’ (as defined under the Consumer
Guarantees Act 1993 (CGA)) under the CGA.
14.2.For the purposes of section 2 and Part 5, section 43(2) of the CGA, the
parties acknowledge and agree that, if you are acquiring, or hold yourself
out as acquiring, the Materials or Services in trade:
(a)to the extent permitted by law, you are contracting out of the CGA (to
the extent that the CGA would otherwise apply to any matters covered
by this Agreement); and
(b)it is fair and reasonable for the parties to be bound by clause 14.2.
14.3.If you are acquiring the Materials or Services for the purpose of
resupplying the Materials or Services in trade, you undertake that you will:
(a)contract out of the CGA to the maximum extent permitted by law in
your contracts with your customers; and
(b)procure that your customers, and each person in the distribution chain
thereafter, contract out of the CGA to the maximum extent permitted by
law in their contracts with customers.
14.4.For the purposes of section 5D of the Fair Trading Act 1986 (FTA), the
parties acknowledge and agree that, if you are acquiring, or hold yourself
out as acquiring, the Materials or Services in trade:
(a)to the extent permitted by law, you are contracting out of sections 9,
12A and 13 of the FTA; and
(b)it is fair and reasonable for the parties to be bound by clause 14.4.
14.5.You will indemnify us against any expenses or losses incurred by us as a
result of your breach of clause 14.
15. CANCELLATION
15.1.We may cancel any Services provided under this Agreement before the
Services are delivered by giving you written notice. On giving you notice,
we shall refund any amounts you have paid, and we shall not be liable for
any loss or damage arising from such cancellation. If you cancel the
delivery of the Services, you shall be responsible for any loss incurred by
us (including, without limitation, any loss of profits) up to the time of
cancellation.
15.2.We shall be entitled to cancel all or part of any order of yours which
remains unperformed, and all Amounts Owing to us shall (whether or not
due) become immediately payable if:
(a)any Amounts Owing to us becomes overdue, or in our opinion, you will
be unable to meet your payments as they fall due; or
(b)an Insolvency Event occurs, and you become insolvent or bankrupt,
convene a meeting with your creditors or a liquidator or similar person
is appointed in respect of you or any of your assets.
15.3.Orders made to your specifications or non-stock-list items cannot be
cancelled once production has commenced.
16. EVENT OF DEFAULT
16.1.Unless waived by us in writing, we may charge interest at a rate of two
and a half percent (2.5%) per calendar month on any outstanding
Amounts Owing from the due date of payment until the date the
outstanding amount is paid (and interest shall compound monthly at such
a rate).
16.2.You agree to reimburse us for any fees or expenses we incur in
recovering any Amounts Owing (including, without limitation,
administration fees, debt collection agency fees, disbursements and full
legal costs on a solicitor-client basis).
16.3.Should you fail to pay any account, we may withhold the release of any
producer statement, certification, or documentation relating to the
Services provided until all Amounts Owing are paid in full.
17. RETENTION OF TITLE
17.1.Ownership (including all right, title and interest) of the Materials and
Services remains with us until:
(a)we have received all Amounts Owing; and
(b)you have performed all of your obligations under this Agreement.
17.2.If any Amounts Owing is overdue, or an Insolvency Event occurs, you
give irrevocable authority to us to use reasonable force to enter anywhere
Materials may be stored, to remove any Materials. We shall not be liable
in contract, tort or otherwise for any damages, expenses, or losses
incurred by you or any third party, and you indemnify us against any
liability we may have to any third party (including full legal costs on a
solicitor-client basis), as a result of us exercising our rights under clause
17.2 (except where damages, costs or losses are due to our negligence
or fraud).
17.3.If you resell or use any Materials before ownership of the Materials has
passed to you (including combining or processing the Materials), the
proceeds of such sale or use will be received and held by you (in
whatever form) in trust for us to the extent of the Amounts Owing (where
our interest as beneficiary under that trust will be that portion of the
proceeds which is equivalent to the Amounts Owing to us and the balance
of the proceeds (if any) will be your beneficial interest under that trust).
17.4.It is further agreed that:
(a)where possible, the Materials shall be kept separate and identifiable
until we have received full payment and you have fulfilled all of your
obligations under this Agreement; and
(b)until ownership of the Materials passes to you, we may give notice in
writing to return the Materials (or any accessories or components), and
your rights to obtain ownership or any other interest in the Materials
shall cease.
17.5.If any Materials are damaged where full payment has not been received,
you agree that we are entitled to:
(a)receive all insurance proceeds paid for the Materials; and
(b)deal directly with the insurance company to receive all insurance
proceeds paid for the Materials we own (in accordance with clause
17.1).
17.6.We may commence proceedings to recover the Price of the Services
provided, notwithstanding that ownership of the Materials or Services has
not passed to you.
18. SECURITY AND LIEN
18.1.Subject to us providing any Materials or Services, you charge all of your
right, title and interest (whether joint or several) in any land, real estate or
other assets capable of being legally charged with a lien, owned by you
either now or in the future, to secure the performance of all obligations
(including full payment of all Amounts Owing) under this Agreement.
18.2.You irrevocably appoint all directors of our companies (including any
Related Company) as your true and lawful attorney(s) and agree that the
appointed attorney(s) may perform all necessary acts to enforce our
rights provided in clause 18.1 of this Agreement (including signing any
document on your behalf).
18.3.You are liable for all our disbursements and expenses (including full legal
expenses on a solicitor-client basis) incurred in exercising our rights
under clause 18 to secure the performance of your obligations under this
Agreement.
18.4.In accordance with Part 5, subpart 5 of the CCLA, we hold a lien for work
done and may sell at public auction any property that has been left by you
for Services if any Amounts Owing are outstanding.
18.5.It is fair and reasonable for the parties to be bound by clause 18.
19. PERSONAL PROPERTY SECURITIES ACT 1999
19.1.You acknowledge and agree that:
(a)this Agreement constitutes, in favour of us, a Security Agreement
creating a Security Interest in the Materials or Services or the proceeds
of such Materials or Services; and
(b)the Security Interest granted to us secures the payment of all Amounts
Owing (all present and after-acquired personal property) you may owe
us from time to time and at any time.
19.2.You agree that you will sign any further documentation and provide any
information which we may reasonably require to ensure we are paid all
Amounts Owing due to us and otherwise to protect our interests under
this Agreement, including by registration of a financing statement and
ensuring that we have a first ranking perfected Security Interest in the
Materials or Services, or a Security Interest in the proceeds of any
Materials or Services (a Security Interest taken in all collateral and any
proceeds of any collateral).
19.3.To the extent permitted by law, we each contract out of:
(a)sections 114(1)(a), 133 and 134 of the PPSA; and
(b)your rights referred to in sections 107(2)(a), (c), (d), (e), (f), (g), (h) and
(i) of the PPSA.
19.4.You waive your right to receive a verification statement under section 148
of the PPSA in respect of any financing statement relating to a Security
Interest.
19.5.Nothing in this Agreement is to be construed as an agreement that: (i) a
Security Interest in Materials (collateral) attaches at a later time than the
time specified in Part 3, section 40(1) of the PPSA; (ii) a Security Interest
is perfected in accordance with Part 3, section 41(1) of the PPSA; (iii) a
Security Interest in all after-acquired property attaches at the time
specified in Part 4, section 44(1) of the PPSA; and (iv) a Security Interest
in collateral shall extend to the proceeds as specified in Part 4, section
45(1) of the PPSA.
19.6.Each Security Interest is a continuing Security, notwithstanding any
intermediate payments, settlement of accounts or anything else.
19.7.You must provide us with information and any associated documentation
reasonably requested by us from time to time relating to your financial
status.
19.8.If at any time we consider that your financial status is unsatisfactory, we
may require you to grant additional Security Interests as security for the
Amounts Owing, and we may suspend or cancel further supply of
Materials or Services until you have provided such Security Interests.
19.9.You shall unconditionally ratify any actions taken by us under clause 19.
20. WORKSITE ACCESS
20.1.It is your responsibility to ensure that:
(a)we have clear and free access to the Worksite to deliver the Materials
or undertake the Services. We shall not be liable for any loss or
damage to the Worksite (including damage to pathways, driveways,
concrete, paved tiles or grassed areas) unless due to our negligence;
and
(b)access is suitable to accept the weight of laden trucks, front-end
loaders, or other earth moving equipment as we may deem necessary.
20.2.It is your responsibility to organise temporary fencing to ensure the
Worksite is protected from damage or theft if any fencing or other
boundary is removed from the Worksite.
21. CLIENT’S RESPONSIBILITIES
21.1.It is your responsibility to:
(a)provide and have erected scaffolding to enable the Services to be
undertaken (where it is not explicitly included in our quotation). It is
further agreed that all scaffolding erected will comply with all WorkSafe
industry safety standards and that any person erecting the scaffolding
shall be suitably qualified to ensure its safe and proper erection and,
where necessary, shall hold a current certificate of competency and be
fully licenced (issued by the Scaffolding, Access and Rigging
Association of New Zealand (SARNZ);
(b)remove any furniture, furnishings or personal goods from the Worksite
or vicinity of the Services and agree that we shall not be liable for any
damage caused to those items through your failure to remove personal
goods from the Worksite;
(c)extinguish all naked flames near the Worksite prior to any Services
(including fireplaces or heaters); and
(d)provide us with adequate access to amenities (including available
water, electricity, toilet and washing facilities in accordance with clause
8.1).
21.2.You agree that you shall be:
(a)solely responsible for any animals and children near the Worksite; and
(b)responsible for the removal of rubbish from or clean-up of the
Worksite.
21.3.You warrant that you have sufficient funds available to honour your
obligations of payment and will, on request, provide us with evidence
verifying such funds through a letter of credit from your banking
institution.
22. INSURANCE AND RISK
22.1.We shall maintain general liability, statutory liability and public liability
insurance policies while performing the Services.
22.2.Where we retain ownership of the Materials or Services (in accordance
with clause 17.1), you acknowledge and accept that:
(a)if we supply Materials only, all risk for the Materials shall immediately
pass to you on the delivery (by us or our nominated carrier), and you
must insure the Materials on or before delivery; or
(b)if we are to supply and install Materials, we shall maintain an insurance
policy for the Services until completion, at which point all risk shall
immediately pass to you.
22.3.Both parties agree that timber is a hygroscopic material, subject to
expansion and contraction (due to factors including water content from
wet or dry weather conditions or geographical location). We will accept no
responsibility for gaps that may appear during prolonged dry periods or
grains in the paint finish due to timber expanding from moisture content.
22.4.You agree that if:
(a)we decide (based on industry experience) that the risk is too significant
to continue during any excavation, we shall advise you (or your agent)
regarding the risk of continuing. Where such advice is not acted on,
and we are requested to continue, we shall require you (or your agent)
to authorise the continuance of the Services in writing. We shall not be
liable for any damage or losses that occur after any subsequent
continuation of the Services, and you agree to reimburse us for any
damage to our Equipment (except where our negligence causes the
damage);
(b)we give advice or recommendations to you regarding the suitability of
the Worksite for the laying of concrete slabs, foundations or similar
Services and such advice or recommendations are not relied upon,
then we shall require you to authorise the commencement of the
Services in writing, and we shall not be liable for any damages or
losses that occur after any subsequent commencement of the
Services;
(c)we discover any fossils, artefacts, or other remains of geological or
archaeological interest while performing the Services, we reserve the
right to halt all Services, remove any of our Equipment from the
Worksite, and immediately notify you. You agree that all additional
costs that may be incurred by us as a result of any such delays
(including if we are unable to remove our Equipment from the Worksite)
will be your responsibility and shall be treated as a variation (in
accordance with clause 7); and
(d)any undisclosed waste or hazardous materials are discovered, we
reserve the right to halt all Services and immediately notify you. It shall
be your responsibility to arrange the removal of all such materials. In
the event that we agree to remove such materials for you, this shall be
treated as a variation (in accordance with clause 7) and will be an
addition to the Price.
22.5.Where we are requested to provide the Services on any land or premises
that has had any communicable disease or pest (including Mites,
Pseudomonas Syringae pv. Actinidiae (PSA), Bacterial Vector-Borne
(BVB), Leaf Roller or Myrtle Rust), you expressly agree to provide written
notice to us prior to the provision of any Services. We reserve the right to
charge additional cleaning costs, which will be charged as a variation (in
accordance with clause 7).
22.6.Where you have supplied Materials for us to complete the Services, you
accept responsibility for the suitability of purpose, quality and any faults
inherent in those Materials and if (in our opinion) it is believed that the
Materials supplied will not conform to New Zealand regulations (set out by
any Regulator), then we shall be entitled to halt all Services until the
appropriate conforming Materials are sourced (and you will be solely
liable for all additional expenses incurred, which will be invoiced as a
variation to the Services under clause 7).
22.7.We may, at our discretion, notify you that we require you to store
Materials or tools required for the completion of the Services at the
Worksite, in which case you agree to provide us with a safe area for
storage and shall take all reasonable efforts to protect any Materials or
tools from theft or damage (and the cost of repair or replacement of any
Materials or tools that are stolen or damaged while stored at the Worksite
shall be your responsibility).
22.8.You accept that we are only responsible for Materials or Services that are
provided or replaced by us, and we do not accept any responsibility for
previous Services carried out by any third party or for any loss or damage
to the Materials or Services that are caused by any other third party after
the completion of the Services.
22.9.Where we are required to install Materials, you warrant the structure of
the premises in or upon which the Materials are to be installed is sound
and will sustain the installation. We shall not be liable for any damages or
expenses caused by the premises being unable to accommodate the
installation of the Materials.
22.10.You agree that variations of colour, grain or shade are inherent in
natural Materials, and while we will make every effort to match colour,
grain or shade when selecting Materials, we shall not be liable for any
variation in colour, grain or shade between batches of Materials or
between new Materials and existing materials (and if there is a variation
between batches or new and existing materials, the Materials and
Services will not be considered to contain any defect or faulty
workmanship).
22.11.We shall not be liable for:
(a)inferior existing paintwork where our paint has bonded to the existing
paintwork and weakened the previous paint causing any kind of flake,
crack or blemish;
(b)the quality of the Services if you do not follow our recommendations as
to the number of coats of paint required to obtain the desired final finish
(if you choose to accept a reduced-Price on the Services based on
fewer coats of paint or not to remove existing paintwork);
(c)any loss or damage to the Services (including painted surfaces) that is
caused by any other third party during or after the completion of the
Services;
(d)delays caused by any other third-party suppliers that impact the
provision of our Services; or
(e)any defect or damage resulting from incorrect or faulty installation
carried out by any other third party; and
22.12.You acknowledge and accept that:
(a)all descriptive specifications, illustrations, drawings, data dimensions,
and weights stated in our fact sheets, Price lists, or advertising material
are indicative only and are not to be relied upon;
(b)where we have performed temporary repairs: (i) we offer no guarantee
against the reoccurrence of the initial fault or any further damage
caused; and (ii) we will immediately advise you of the fault and shall
provide you with an estimate for the repair; and
(c)the Materials supplied may: (i) exhibit variations in shade, tone, colour,
texture, markings, veining, surface and finish (and contain natural
fissures, occlusions, and indentations); (ii) fade or change colour over
time; (iii) expand, contract or distort as a result of exposure to heat,
cold, or weather conditions; (iv) mark or stain if exposed to certain
substances (including those stated by the manufacturer); and (v) be
damaged or scratched by impact.
22.13.Should you request us to leave Materials outside our premises for
collection or deliver the Materials to an unattended location, you agree
that those Materials shall be left unattended at your sole risk.
23. NOTIFICATION OF SERVICES
23.1.You must precisely locate all unseen or underground services on the
Worksite and mark the same prior to us commencing any of the Services
(including electrical services, gas services, sewer services, water mains,
telephone cables, fibre optic cables, or any other services that may be
present on the Worksite).
23.2.You agree that we are in no way liable for any damages, expenses or
fines incurred due to any unseen or underground services that are not
precisely located and marked by you in accordance with clause 23.1.
24. PROVISION OF CONCRETE
24.1.We give no guarantee (expressed or implied) as to the length of time the
curing process will take to avoid cracking of the concrete (that may occur
naturally, such as hairline cracking) due to weather conditions that
prolong or accelerate the curing process of the concrete.
24.2.You agree that concrete is a natural material and is inherently variable.
The concrete may contain blow holes, air voids and minor colour
variations due to factors beyond our control (including but not limited to
an oxide containing concrete curing at differing rates, variations in ground
moisture under the concrete, partial shading of the Worksite and weather
variations during the pour/curing of the concrete).
24.3.We shall not be liable for any damage that is caused to the concrete by
not following our recommendations, including:
(a)to water the concrete periodically to limit the risk of potential cracking
due to weather conditions;
(b)that no foot traffic or furniture is to be on the concrete for a minimum of
forty-eight (48) hours from the completion of the Services; and
(c)that no vehicles are to be on the concrete for seven (7) days from the
completion of the Services.
24.4.You agree that it is your responsibility to organise and protect the
concrete once the Services have been completed, and we will not be
responsible for any damage caused by any third party.
24.5.Coarse aggregate segregation can lead to a variable dispersion of
aggregates, which can be an aesthetic issue in exposed aggregate
concrete and concrete made with alluvial aggregates containing driftwood
or other materials that may be visible on the surface. We shall not be
responsible for any exposed aggregates inherent with the Materials that
cause an aesthetic issue in the concrete finish.
24.6.While we will take all reasonable care and use all information available to
us, we shall not be liable for any damage or additional expenses caused
by unforeseeable weather conditions which are not predicted by any
weather-predicting services and cannot be reasonably anticipated or
managed. Should there be any damage due to unforeseeable weather
conditions (including but not limited to rain, hail or heavy winds), the
additional cost to repair such damage will be treated as a variation (in
accordance with clause 7).
24.7.Detailed drawings of any services that will be embedded in the concrete
are to be provided to us prior to the commencement of any Services, and
whilst we will take all due care, we accept no liability for any damage to
the embedded services.
24.8.All finished work shall be assessed in accordance with the New Zealand
Standard 3114:1987 (specification for concrete surface finishes), which
states that finishes need to be assessed from a distance of 3 metres.
24.9.You shall supply an area suitable for washing out our Equipment and
depositing any unused concrete or slurry.
25. HEALTH AND SAFETY AT WORK ACT 2015
25.1.Each party will comply with the Health and Safety at Work Act 2015
(HSW Act), including all health and safety duties specified in Part 2 of the
HSW Act, as well as all other applicable standards and codes of practice
relating to health and safety. In addition, each party will comply with the
other party’s pre-notified and reasonable health and safety policies when
on the party’s premises.
25.2.You must notify us of any known hazards arising from your premises to
which any person may be exposed, as well as notify us of any notifiable
injury, illness, incident or event (as defined in Part 1, subpart 3 of the
HSW Act) to ensure that your workplace is without risks to the health and
safety of any person.
25.3.Each party must consult, cooperate and coordinate activities with all
other persons who have a health and safety duty in relation to the same
matter in providing the Materials or Services (including in connection with
the delivery of the Materials or Services).
26. PLANS AND SPECIFICATIONS
26.1.Where you supply us with any plans, specifications or other technical
information (such as CAD drawings or any other electronic software that
provides detailed plans and specifications), you will be responsible for
providing accurate information, and we shall be entitled to rely on the
accuracy of the information you provide.
26.2.We are not responsible for any errors in the Materials or Services or for
additional expenses caused by you supplying inaccurate information.
27. COMPLIANCE AND CONSENTS
27.1.You agree to obtain (at your expense) all approvals, consents and
licences that may be required (including geotechnical data or any other
reports required for the completion of the Services) and, where
applicable:
(a)you shall be responsible for applying for and obtaining the Code
Compliance Certificates for the Services; and
(b)we shall provide you with all necessary information so that you may
apply for any Code Compliance Certificates.
27.2.Both parties acknowledge and agree to comply with the Building Act
2004 in respect of all ‘building work’ (as defined in Part 1, section 7 of the
Building Act 2004) supplied under this Agreement.
28. CONSTRUCTION CONTRACTS ACT 2002
28.1.If you are a ‘residential occupier’ (as defined in Part 1, section 5 of the
CCA), then you agree that we shall have the right to suspend any
Services by providing five (5) days written notice, should a payment claim
be served on you and an Event of Default occurs, in accordance with
section 24A in Part 2, subpart 4 of the CCA.
28.2.Should we suspend the Services, it shall not be considered a breach of
this Agreement, and we are not liable for any losses or expenses that you
incur due to the suspension of Services under clause 28.1.
28.3.In the event the Services are suspended, we shall be entitled to an
extension of time to complete any Services that remain incomplete under
this Agreement, and you agree that:
(a)we retain the right to cancel this Agreement whilst the Services are
suspended and all other rights available to us in this Agreement shall
remain in full force and effect; and
(b)we may exercise any rights for payments or adjudication of disputes
under Part 2 and Part 3 of the CCA.
29. MEASUREMENT OF SERVICES
29.1.At the completion of the Services, you (or your agent) shall attend the
Worksite, and the Services shall be measured (and where you are absent
and do not attend the Worksite, we shall carry out the necessary
measurements and forward you the calculations). If you do not object to
the measurements or calculations within seven (7) days of receiving such
information, then it shall be deemed acceptance of the measurements
and any subsequent calculations. In the event you dispute the
measurements or calculations taken in your absence, we reserve the right
to charge any additional time spent in providing new measurements or
calculations as a variation (in accordance with clause 7).
30. THIRD PARTY SUPPLIERS
30.1.We shall be entitled to engage third party suppliers (including
subcontractors), and you agree that we have your authority to enter into
contracts with such third party suppliers in your name.
30.2.If you request and authorise us to arrange the provision of Materials or
Services directly to you by a third party supplier (whether or not such
arrangement involves us contracting as your agent), to the extent
applicable, this Agreement shall apply to our Services in arranging such
supply, provided that we exclude all liability in connection with the supply
of Materials or Services to you directly by a third party supplier. You agree
to pay all Amounts Owing in accordance with this Agreement in the event
we arrange any supply of Materials or Services that are provided directly
to you by a third party supplier.
30.3.No warranty is offered by us regarding the quality of the third party
supplier's workmanship, including whether their recommendations are
appropriate or accurate.
31. LIABILITY
31.1.To the extent permitted by law, we shall have no liability whatsoever to
you for any direct or indirect expense or loss of profit suffered by you
arising out of a breach by us of this Agreement (including any
unintentional misrepresentation made to you by us regarding any of the
Materials or Services).
31.2.To the extent permitted by law, our liability shall not exceed the Price of
the Services provided by us under this Agreement.
31.3.To the extent permitted by law, our total liability under or in connection
with this Agreement and the Materials or Services is limited to, at our
option:
(a)in the case of Materials, any one or more of the following: (i) the
replacement of the Material(s) or the supply of equivalent Material(s);
(ii) the repair of the Material(s); (iii) the payment of the expense of
replacing the Material(s) or of acquiring equivalent Material(s); or (iv)
the payment of the expense of having the Material(s) repaired; or
(b)in the case of Services: (i) supplying the Services again; or (ii) the
payment of the expense of having the Services supplied again.
31.4.If, notwithstanding clause 31, we have any liability under or in connection
with this Agreement, to the maximum extent permitted by law:
(a)our total aggregate liability to you for any loss, damage or liability
arising out of or in connection with this Agreement will be limited to the
lesser of: (i) the Price paid by you to us for the applicable Materials or
Services; or (ii) the actual loss or damage suffered by you; and
(b)we will not be liable for any: (i) indirect, special or consequential loss or
damage whatsoever; or (ii) loss of profits, revenue, data, goodwill,
customers, opportunities or loss of or damage to reputation.
31.5.The limitations and exclusions on liability in this clause 32 will apply
irrespective of the legal basis for the applicable claim, including contract,
equity, tort or statute, except negligence and fraud.
31.6.In no circumstances will we have any liability whatsoever under or in
connection with this Agreement:
(a)for the acts or omissions of any third party;
(b)any act or omissions performance in accordance with your instructions
(or instructions from your authorised agents); or
(c)to any third party.
32. GENERAL
32.1.Governing law: This Agreement is governed by and to be construed in
accordance with the laws of New Zealand, and each party submits to the
exclusive jurisdiction of the courts of New Zealand.
32.2.Entire Agreement: This Agreement constitutes the entire agreement of
the parties about its subject matter and supersedes all previous
agreements, representations and understandings.
32.3.Priority: To the extent of an inconsistency between:
(a)this Agreement;
(b)all other schedules to this Agreement;
(c)any privacy or data agreement (if applicable); and
(d)the order of priority set out above will apply (with (a) having the highest
priority).
32.4.Subcontracting: We may subcontract the performance of our obligations
(including to a Related Company) on the basis that we remain solely
liable to you for the performance of our obligations.
32.5.Assignment: You must not assign, novate or transfer your rights or
obligations under this Agreement without our prior written consent (which
may be withheld at our sole discretion). We may assign this Agreement to
any other person. Without limiting the foregoing, we may assign to any
other person all or part of the Amounts Owing by you.
32.6.Amendments: Except where stated otherwise in this Agreement, any
amendment to this Agreement must be in writing, signed by both parties,
except where we are required to make changes to ensure compliance
with applicable laws, in which case we can give you notice of any such
amendments required, and you will be bound by the same.
32.7.Notices: Any notice, demand or other communication to be served on a
party must be in writing and sent by personal delivery, pre-paid post or
email to the address of the relevant party (or otherwise notified to the
other party from time to time). Any notice or other communication is
deemed to be received (i) if personally delivered, on receipt, (ii) if posted
by pre-paid official postal service, on the fifth Business Day after posting
(or seven Business Days after posting if sent from one country to
another), and (iii) if sent by email on the date and time that the email was
sent (as evidenced in the sender's email sent history). Notices received
after 5pm on a Business Day will be deemed received on the next
Business Day.
32.8.Force majeure: We will not be liable to you for any failure or delay in
performing our obligations under this Agreement where such failure or
delay is caused by events or circumstances beyond our reasonable
control (including any strike, lockout, labour dispute, delay in transit,
embargo, epidemic, pandemic, accident, emergency, order of government
or other authority or act of god).
32.9.Severability: If any part of this Agreement is illegal or unenforceable, you
agree that part shall be amended to the extent permitted by law to allow
the enforceability of any rights, and if it is not able to be amended, then it
will be severed, and all remaining rights in this Agreement will continue in
full force and effect.
32.10.Waiver: A single or partial exercise or waiver of a right relating to this
Agreement does not prevent any other exercise of that right or the
exercise of any other right.
32.11.Termination: Either party may terminate this Agreement immediately by
written notice if the other party breaches a term of this Agreement which
is not capable of remedy or, where the breach is capable of remedy, fails
to remedy the breach within 20 Business Days of written notice of the
breach.
32.12.Survival: Any rights or obligations under or in connection with this
Agreement, which is by nature a continuing obligation, will survive
termination of this Agreement by either party.
32.13.Rights of third parties: This Agreement is not intended to confer a
benefit on any person other than the parties to this Agreement.
32.14.Relationship: We will provide Materials or Services to you as an
independent contractor. Nothing in this Agreement creates any
partnership, joint venture or employment relationship between the parties.
32.15.Non-exclusive: This Agreement is not exclusive, and you agree that
there are no restrictions on us to provide any Materials or Services to any
other person.
32.16.Counterparts: This Agreement may be executed in any number of
counterparts (including by electronic signature or by email exchange of
pdf copies) which together will constitute the one instrument.