SKF Contracting – Terms & Conditions of Trade
1.1 “Contract” means the terms and conditions contained herein, together with any Quotation, order, invoice or other document or amendments expressed to be supplemental to this Contract.
1.2 “Contractor” means SKF Contracting Limited T/A SKF Contracting, its successors and assigns or any person acting on behalf of and with the authority of SKF Contracting Limited T/A SKF Contracting.
1.3 “Contractor” means the person/s, entities or any person acting on behalf of and with the authority of the Contractor requesting the Contractor to provide the Works as specified in any proposal, quotation, order, invoice or other documentation, and:
(a) if there is more than one Contractor, is a reference to each Contractor jointly and severally; and
(b) if the Contractor is a partnership, it shall bind each partner jointly and severally; and
(c) if the Contractor is a part of a Trust, shall be bound in their capacity as a trustee; and
(d) includes the Contractor’s executors, administrators, successors and permitted assigns.
1.4 “Works” means all Works or Materials supplied by the Contractor to the Contractor at the Contractor’s request from time to time (where the context so permits the terms ‘Works’ or ‘Materials’ shall be interchangeable for the other).
1.5 “Confidential Information” means information of a confidential nature whether oral, written or in electronic form including, but not limited to, this Contract, either party’s intellectual property, operational information, know-how, trade secrets, financial and commercial affairs, contracts, client information (including but not limited to, “Personal Information” such as: name, address, D.O.B, occupation, driver’s license details, electronic contact (email, Facebook or Twitter details), medical insurance details or next of kin and other contact information (where applicable), previous credit applications, credit history) and pricing details.
1.6 “Cookies” means small files which are stored on a user’s computer. They are designed to hold a modest amount of data (including Personal Information) specific to a particular client and website, and can be accessed either by the web server or the client’s computer. If the Contractor does not wish to allow Cookies to operate in the background when ordering from the website, then the Contractor shall have the right to enable / disable the Cookies first by selecting the option to enable / disable provided on the website, prior to ordering Works via the website.
1.7 “Price” means the Price payable (plus any Goods and Services Tax (“GST”) where applicable) for the Works as agreed between the Contractor and the Contractor in accordance with clause 5 below.
2.1 The Contractor is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Contractor places an order for or accepts delivery of any Works.
2.2 In the event of any inconsistency between the terms and conditions of this Contract and any other prior document or schedule that the parties have entered into, the terms of this Contract shall prevail.
2.3 Any amendment to the terms and conditions contained in this Contract may only be amended in writing by the consent of both parties.
2.4 The Contractor acknowledges that the supply of Works on credit shall not take effect until the Contractor has completed a credit application with the Contractor and it has been approved with a credit limit established for the account.
2.5 In the event that the supply of Works request exceeds the Contractors credit limit and/or the account exceeds the payment terms, the Contractor reserves the right to refuse delivery.
2.6 Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 226 of the Contract and Commercial Law Act 2017 or any other applicable provisions of that Act or any Regulations referred to in that Act.
2.7 These terms and conditions may be meant to be read in conjunction with the Contractor’s Hire Form, and:
(a) where the context so permits, the terms ‘Works’ or ‘Materials’ shall include any supply of Equipment, as defined therein; and
(b) if there are any inconsistencies between the two documents then the terms and conditions contained therein shall prevail.
2.8 Where the Customer requesting or organising the Contractor to provide the Works is acting on behalf of any third party (including but not limited to multiple property owners and/or contributors to any driveway, fence, retaining wall), and that third party is intended to be responsible for the either the full or partial payment of the Price, then in the event that third party does not pay for the Works when due, the Customer acknowledges that they shall be liable for the full payment of the Price as if they had contracted the Works on their own behalf.
- Errors and Omissions
3.1 The Contractor acknowledges and accepts that the Contractor shall, without prejudice, accept no liability in respect of any alleged or actual error(s) and/or omission(s):
(a) resulting from an inadvertent mistake made by the Contractor in the formation and/or administration of this Contract; and/or
(b) contained in/omitted from any literature (hard copy and/or electronic) supplied by the Contractor in respect of the Works.
3.2 In the event such an error and/or omission occurs in accordance with clause 3.1, and is not attributable to the negligence and/or wilful misconduct of the Contractor; the Contractor shall not be entitled to treat this Contract as repudiated nor render it invalid.
- Change in Control
4.1 The Contractor shall give the Contractor not less than fourteen (14) days prior written notice of any proposed change of ownership of the Contractor and/or any other change in the Contractor’s details (including but not limited to, changes in the Contractor’s name, address, contact phone number/s, change of trustees, or business practice). The Contractor shall be liable for any loss incurred by the Contractor as a result of the Contractor’s failure to comply with this clause.
- Price and Payment
5.1 At the Contractor’s sole discretion the Price shall be either:
(a) as indicated on invoices provided by the Contractor to the Contractor in respect of Works performed or Materials supplied; or
(b) the Contractor’s quoted Price (subject to clause 5.2) which shall be binding upon the Contractor provided that the Contractor shall accept the Contractor’s quotation in writing within thirty (30) days.
5.2 The Contractor reserves the right to change the Price:
(a) if a variation to the Materials which are to be supplied is requested; or
(b) if a variation to the Works originally scheduled (including any applicable plans or specifications) is requested; or
(c) where additional Works are required due to the discovery of hidden or unidentifiable difficulties (including, but not limited to, poor weather conditions, limitations to site access, ready availability of Materials, variations in quantity or volume of Materials to be supplied, prerequisite work by a third party not being completed, inaccurate measurements, plans or specifications supplied by the Customer, hard rock or other barriers below the surface, latent soil conditions, iron reinforcing rods in concrete, or hidden pipes and wiring, etc.) which are only discovered on commencement of the Works; or
(d) in the event of increases to the Contractor in the cost of labour or materials which are beyond the Contractor’s control.
5.3 Variations will be charged for on the basis of the Contractor’s quotation, and will be detailed in writing, and shown as variations on the Contractor’s invoice. The Contractor shall be required to respond to any variation submitted by the Contractor within ten (10) working days. Failure to do so will entitle the Contractor to add the cost of the variation to the Price. Payment for all variations must be made in full at the time of their completion.
5.4 At the Contractor’s sole discretion a non-refundable deposit may be required.
5.5 Time for payment for the Works being of the essence, the Price will be payable by the Contractor on the date/s determined by the Contractor, which may be:
(a) on completion of the Works; or
(b) by way of progress payments in accordance with the Contractor’s specified progress payment schedule. Such progress payment claims may include the reasonable value of authorised variations and the value of any Materials delivered to the worksite but not yet installed;
(c) for certain approved Contractors, due twenty (20) days following the end of the month in which a statement is posted to the Contractor’s address or address for notices;
(d) the date specified on any invoice or other form as being the date for payment; or
(e) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Contractor by the Contractor.
5.6 At the agreement of both parties, payment of the Price may be subject to retention by the Contractor of an amount (hereafter called the “Retention Money”), being a set amount or equal to a percentage of the Price. The Contractor shall hold the Retention Money for the agreed period following completion of the Works during which time all Works are to be completed and/or all defects are to be remedied. Any Retention Money applicable to this Contract is to be dealt with in accordance with section 18 of the Construction Contracts Act 2002.
5.7 Payment may be made by bank cheque, electronic/on-line banking, credit card (a surcharge may apply per transaction), or by any other method as agreed to between the Contractor and the Contractor.
5.8 The Contractor may in its discretion allocate any payment received from the Contractor towards any invoice that the Contractor determines and may do so at the time of receipt or at any time afterwards. On any default by the Contractor the Contractor may re-allocate any payments previously received and allocated. In the absence of any payment allocation by the Contractor, payment will be deemed to be allocated in such manner as preserves the maximum value of the Contractor’s Purchase Money Security Interest (as defined in the PPSA) in the Materials.
5.9 The Contractor shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Contractor by the Contractor nor to withhold payment of any invoice because part of that invoice is in dispute unless the request for payment by the Contractor is a claim made under the Construction Contracts Act 2002.
5.10 Unless otherwise stated the Price does not include GST. In addition to the Price, the Contractor must pay to the Contractor an amount equal to any GST the Contractor must pay for any supply by the Contractor under this or any other agreement for the sale of the Materials. The Contractor must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Contractor pays the Price. In addition, the Contractor must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.
- Provision of the Works
6.1 Subject to clause 6.2 it is the Contractor’s responsibility to ensure that the Works start as soon as it is reasonably possible.
6.2 The Works’ commencement date will be put back and the completion date extended by whatever time is reasonable in the event that the Contractor claims an extension of time (by giving the Contractor written notice) where completion is delayed by an event beyond the Contractor’s control, including but not limited to any failure by the Contractor to:
(a) make a selection; or
(b) have the site ready for the Works; or
(c) notify the Contractor that the site is ready.
6.3 The Contractor may deliver the Works by separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.
6.4 Any time specified by the Contractor for delivery of the Works is an estimate only and the Contractor will not be liable for any loss or damage incurred by the Contractor as a result of delivery being late. However both parties agree that they shall make every endeavour to enable the Works to be supplied at the time and place as was arranged between both parties. In the event that the Contractor is unable to supply the Works as agreed solely due to any action or inaction of the Contractor, then the Contractor shall be entitled to charge a reasonable fee for re-supplying the Works at a later time and date, and/or for storage of the Materials.
6.5 The Customer shall take delivery of the bulk Materials tendered notwithstanding that the quantity so delivered shall be either greater or lesser than the quantity purchased provided that:
(a) such discrepancy in quantity shall not exceed five percent (5%); and
(b) the Price shall be adjusted pro rata to the discrepancy.
7.1 If the Contractor retains ownership of the Materials under clause 13 then:
(a) where the Contractor is supplying Materials only, all risk for the Materials shall immediately pass to the Contractor on delivery and the Contractor must insure the Materials on or before delivery. Delivery of the Materials shall be deemed to have taken place immediately at the time that the Materials are delivered by the Contractor or the Contractor’s nominated carrier to the Contractor’s nominated delivery address (even if the Contractor is not present at the address);
(b) where the Contractor is to both supply and install Materials then the Contractor shall maintain a contract works insurance policy until the Works are completed. Upon completion of the Works all risk for the Works shall immediately pass to the Contractor.
7.2 Notwithstanding the provisions of clause 7.1 if the Contractor specifically requests the Contractor to leave Materials outside the Contractor’s premises for collection or to deliver the Materials to an unattended location then such materials shall always be left at sole risk of the Contractor and it shall be the Contractor’s responsibility to ensure the Materials are insured adequately or at all. In the event that such Materials are lost, damaged or destroyed then replacement of the Materials shall be at the Contractor’s expense.
7.3 The Customer warrants that the plans, specifications (including CAD plans) and other information provided by the Customer to the Contractor are accurate. The Customer acknowledges and agrees that in the event that any plans, specifications (including CAD plans) or information provided by the Customer is inaccurate:
(a) the Contractor accepts no responsibility or liability for any loss, damages, or costs however resulting from these inaccurate plans, specifications or other information;
(b) the Contractor is entitled to suspend or terminate the supply of Materials or Works to the Customer if there is a material change to the scope of Works as a result of inaccurate plans, specifications or other information;
(c) the Customer shall be liable for the Contractor’s costs of de-mobilisation or re-mobilisation of any plant, equipment or staff to or from the site, upon the re-commencement of the Works at the site, if applicable; and
(d) the Contractor will not be liable to the Customer for any loss or damage the Customer suffers because the Contractor has exercised its rights under this clause.
7.4 Where the Customer has provided instructions or specifications for the Contractor to complete the Works (including, but not limited to, any requested variation to the original design), then the Contractor shall accept no liability whatsoever for the finished Works being deemed as unsatisfactory to the Customer.
7.5 The Customer warrants that any structures or land (where applicable) to which the Materials are to be affixed are able to withstand the installation of the Materials once installed. If for any reason (including the discovery of asbestos, erosion, etc.) that the Contractor, or employees of Contractor, reasonably form the opinion that the Customer’s premises is not safe for the installation of Materials to proceed then the Contractor shall be entitled to delay installation of the Materials (in accordance with the provisions of clause 6.2 above) until the Contractor is satisfied that it is safe for the installation to proceed.
7.6 Detailed drawings of any services that will be embedded in the concrete/asphalt are to be provided to the Contractor prior to commencement of any work. Whilst all due care will be taken no liability will be accepted by the Contractor for damage to the services or any other element embedded in the concrete/asphalt.
7.7 The Contractor gives no guarantee (expressed or implied) as to the length of time the curing process will take and/or against cracking of concrete that may occur naturally in the Works such as:
(a) hairline cracking of paving and grout; or
(b) damage caused by contact with chemicals, solvents, oils or any other substances; or
(c) the affects by elements such as heat exposure or wet weather conditions that prolong the curing process.
7.8 The Customer acknowledges and agrees that it is their responsibility to organise and be liable for all costs associated with protecting the concrete and shall take all reasonable precautions to protect against destruction or damage by way of vandalism. In the event that the concrete is destroyed or damaged due to vandalism then the cost of repair or replacement shall be borne by the Customer.
7.9 The Contractor shall not be liable for any defect in the Works if the Customer does not follow the Contractor’s recommendations, including:
(a) to water the concrete periodically to limit the risk of possible cracking due to weather conditions;
(b) that no foot traffic and/or any vehicles on the concrete for a minimum of forty-eight (48) hours but preferably seven (7) days;
(c) that no heavy furniture is to be placed on the concrete area for a minimum of forty-eight (48) hours.
7.10 Where the Contractor gives advice or recommendations to the Customer, or the Customer’s agent, regarding the suitability of the site for the laying of concrete slabs, foundations or similar works and such advice or recommendations are not acted upon then the Contractor shall require the Customer or their agent to authorise commencement of the Works in writing. The Contractor shall not be liable in any way whatsoever for any damages or losses that occur after any subsequent commencement of the Works.
7.11 The Customer shall supply an area suitable for washing out the Contractor’s equipment and for disposing all unused concrete and slurry.
7.12 The Customer acknowledges that Materials supplied may:
(a) fade or change colour over time; and
(b) expand, contract or distort as a result of exposure to heat, cold, weather; and
(c) mark or stain if exposed to certain substances; and
(d) be damaged or disfigured by impact or scratching; and
(e) show variations of texture, shade, colour, surface, finish, markings, veining, and contain natural fissures, occlusions, and indentations. Whilst the Contractor will make every effort to match sales samples to the finished Materials the Contractor accepts no liability whatsoever:
(i) where such samples differ to the finished Materials supplied; or
(ii) for any loss, damages or costs howsoever arising resulting from any texture, shade, colour, surface, finish, markings, veining, and natural fissures, occlusions, and indentations between different batches of product.
7.13 Landscaping Risk
(a) The Customer accepts and acknowledges that shrubs, plants, natural turf and any other flora, foliage or
vegetation supplied by the Contractor are organic in nature and require care and maintenance. The Contractor reserves the right to not accept liability for the plants where such plants may have become affected or died due to the Customer’s failure to properly maintain the plants and/or to follow any instructions or guidelines provided by the Contractor in regard to the proper care of the plants (including but not limited to, adequate watering of the plants).
(b) Where the Customer has supplied goods for the Contractor to complete the Works, the Customer acknowledges and accepts responsibility for the suitability of purpose, quality and any faults inherent in the goods. The Contractor shall not be responsible for any defects in the goods, any loss or damage to the Works (or any part thereof), howsoever arising from the use of goods supplied by the Customer.
(c) The Customer must be on site to supervise the marking out of the fence line, placement of boundary pegs and during the installation of the fence. If the Customer fails to comply with this clause, then the Contractor accepts no responsibility for installation decisions that need to be made by the Contractor in the Customer’s absence.
(d) The Customer acknowledges that it is their responsibility to remove any existing fence (including existing footings), trees, vines and shrubs to allow the Contractor clear access along the proposed fence line prior to commencement of work by the Contractor unless otherwise agreed in writing between the Contractor and the Customer. Under no circumstances will the Contractor handle removal of asbestos product.
(e) Whilst the Contractor will take all due care during installation the Contractor will not accept any responsibility for tiles or pavers damaged during installation.
(f) Where fencing is installed on a retaining wall the Contractor shall not be liable for any movement in the fence due to consolidation, or the movement of soil or any other component of the retaining wall.
(g) The Contractor reserves the right to touch-up all products supplied and installed at the site to rectify minor blemishes or damage to paintwork.
(h) Timber is a hygroscopic material subject to expansion and contraction, therefore the Contractor will accept no responsibility for gaps that may appear in the timber during prolonged dry periods.
(i) Where applicable, the Contractor gives no guarantee (expressed or implied) against optical hazing, crazing, cracking, chipping or scratching that may occur that is beyond the Contractor’s control due to the nature of the product at the time of installation, therefore it is recommended that the Customer allows for extra product for such breakages.
(j) If the Customer orders an insufficient number of tiles, then the Contractor will take no responsibility for any variation of colour in further batches supplied to the Customer or the inability to supply Materials at all.
(k) The Contractor:
(i) will accept no responsibility for tiles that have already been affixed;
(ii) shall not be liable for inferior existing paintwork where the Contractor’s paint has bonded to the existing paintwork and weakened the previous paint causing any kind of flake, crack or blemish;
(iii) shall not be liable whatsoever for any loss or damage to the Works (including, but not limited to, painted surfaces) that is caused by any other tradesmen.
(l) The Customer acknowledges and agrees that it is their responsibility to organise and be liable for all costs associated with protecting the concrete and shall take all reasonable precautions to protect against destruction or damage by way of vandalism. In the event that the concrete is destroyed or damaged due to vandalism then the cost of repair or replacement shall be borne by the Customer.
- Customer’s Responsibilities
8.1 The Customer shall provide the Contractor with a suitable free power source and access to water and toilet facilities.
8.2 The Customer acknowledges and agrees that in the event the Contractor requires access, in order to undertake the Works, to an adjoining or adjacent property or land to the nominated job site, that is not owned by the Customer, then it is the Customer’s responsibility to gain permission from the land owner to use the above mentioned property throughout the process or delivering the Works. In the event the land owner denies access or use of the land or property, the Customer shall be liable for all costs incurred by the Contractor in gaining permission to access and/or use the property through any legal process that may be deemed necessary.
9.1 The Customer shall ensure that the Contractor has clear and free access to the site at all times to enable them to undertake the Works. The Contractor shall not be liable for any loss or damage to the site (including, without limitation, damage to pathways, driveways and concreted or paved or grassed areas) unless due to the negligence of the Contractor.
9.2 It is the responsibility of the Customer to ensure that access is suitable to accept the weight of laden trucks, earth moving equipment or other equipment/machinery as may be deemed necessary by the Contractor.
- Underground Locations
10.1 Prior to the Contractor commencing any work the Customer must advise the Contractor of the precise location of all underground services at the site and clearly mark the same. The underground mains and services the Customer must identify include, but are not limited to, electrical services, gas services, sewer services, pumping services, sewer connections, sewer sludge mains, water mains, irrigation pipes, telephone cables, fibre optic cables, oil pumping mains, and any other services that may be on site.
10.2 Whilst the Contractor will take all care to avoid damage to any underground services the Customer agrees to indemnify the Contractor in respect of all and any liability claims, loss, damage, costs and fines as a result of damage to services not precisely located and notified as per clause 10.1.
- Compliance with Laws
11.1 The Customer and the Contractor shall comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities that may be applicable to the Works including any WorkSafe health and safety laws relating or any other relevant safety standards or legislation pertaining to the Works.
11.2 The Customer shall obtain (at the expense of the Customer) all licenses and approvals that may be required for the Works.
SKF Contracting – Terms & Conditions of Trade
Please note that a larger print version of these terms and conditions is available from the Contractor on request. © Copyright – EC Credit Control 1999 – 2018 – #32570
11.3 Notwithstanding clause 11.1 and pursuant to the Health & Safety at Work Act 2015 (the “HSW Act”) the Contractor agrees at all times comply with sections 28 and 34 of the “HSW Act” with meeting their obligations for health and safety laws in the workplace regardless of whether they may be the party in control of the site or where they may be acting as a subcontractor for the Customer who has engaged a thirty party head contractor.
11.4 The Customer shall advise the Contractor of the precise location of all known risks present at the site, and where applicable, induct the Contractor’s workers (including any sub-contractors as required), on:
(a) any WorkSafe management system;
(b) site safety expectations;
(c) emergency provisions;
(d) risks and their control measures; and
(e) incident reporting expectations.
12.1 The Contractor shall have public liability insurance of at least five million dollars ($5m). It is the Customer’s responsibility to ensure that they are similarly insured.
13.1 The Contractor and the Contractor agree that ownership of the Materials shall not pass until:
(a) the Contractor has paid the Contractor all amounts owing to the Contractor; and
(b) the Contractor has met all of its other obligations to the Contractor.
13.2 Receipt by the Contractor of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised.
13.3 It is further agreed that:
(a) until ownership of the Materials passes to the Contractor in accordance with clause 13.1 that the Contractor is only a bailee of the Materials and unless the Materials have become fixtures must return the Materials to the Contractor on request;
(b) the Contractor holds the benefit of the Contractor’s insurance of the Materials on trust for the Contractor and must pay to the Contractor the proceeds of any insurance in the event of the Materials being lost, damaged or destroyed;
(c) the production of these terms and conditions by the Contractor shall be sufficient evidence of the Contractor’s rights to receive the insurance proceeds direct from the insurer without the need for any person dealing with the Contractor to make further enquiries;
(d) the Contractor must not sell, dispose, or otherwise part with possession of the Materials other than in the ordinary course of business and for market value. If the Contractor sells, disposes or parts with possession of the Materials then the Contractor must hold the proceeds of any such act on trust for the Contractor and must pay or deliver the proceeds to the Contractor on demand;
(e) the Contractor should not convert or process the Materials or intermix them with other goods but if the Contractor does so then the Contractor holds the resulting product on trust for the benefit of the Contractor and must sell, dispose of or return the resulting product to the Contractor as it so directs;
(f) unless the Materials have become fixtures the Contractor irrevocably authorises the Contractor to enter any premises where the Contractor believes the Materials are kept and recover possession of the Materials;
(g) the Contractor may recover possession of any Materials in transit whether or not delivery has occurred;
(h) the Contractor shall not charge or grant an encumbrance over the Materials nor grant nor otherwise give away any interest in the Materials while they remain the property of the Contractor;
(i) the Contractor may commence proceedings to recover the Price of the Materials sold notwithstanding that ownership of the Materials has not passed to the Contractor.
- Personal Property Securities Act 1999 (“PPSA”)
14.1 Upon assenting to these terms and conditions in writing the Contractor acknowledges and agrees that:
(a) these terms and conditions constitute a security agreement for the purposes of the PPSA; and
(b) a security interest is taken in all Materials and/or collateral (account) – being a monetary obligation of the Contractor to the Contractor for Works – that have previously been supplied and that will be supplied in the future by the Contractor to the Contractor.
14.2 The Contractor undertakes to:
(a) sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which the Contractor may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register;
(b) indemnify, and upon demand reimburse, the Contractor for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register or releasing any Materials charged thereby;
(c) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Materials and/or collateral (account) in favour of a third party without the prior written consent of the Contractor; and
(d) immediately advise the Contractor of any material change in its business practices of selling Materials which would result in a change in the nature of proceeds derived from such sales.
14.3 The Contractor and the Contractor agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms and conditions.
14.4 The Contractor waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA.
14.5 Unless otherwise agreed to in writing by the Contractor, the Contractor waives its right to receive a verification statement in accordance with section 148 of the PPSA.
14.6 The Contractor shall unconditionally ratify any actions taken by the Contractor under clauses 14.1 to 14.5.
14.7 Subject to any express provisions to the contrary (including those contained in this clause 14), nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.
- Security and Charge
15.1 In consideration of the Contractor agreeing to supply the Works, the Contractor charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Contractor
either now or in the future, to secure the performance by the Contractor of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
15.2 The Contractor indemnifies the Contractor from and against all the Contractor’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising the Contractor’s rights under this clause.
15.3 The Contractor irrevocably appoints the Contractor and each director of the Contractor as the Contractor’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 15 including, but not limited to, signing any document on the Contractor’s behalf.
- Defects In Materials
16.1 The Contractor shall inspect the Materials on delivery and shall within seven (7) days of delivery (time being of the essence) notify the Contractor of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Contractor shall afford the Contractor an opportunity to inspect the Materials within a reasonable time following delivery if the Contractor believes the Materials are defective in any way. If the Contractor shall fail to comply with these provisions the Materials shall be presumed to be free from any defect or damage. For defective Materials, which the Contractor has agreed in writing that the Contractor is entitled to reject, the Contractor’s liability is limited to either (at the Contractor’s discretion) replacing the Materials or repairing the Materials.
16.2 Materials will not be accepted for return other than in accordance with 16.1 above.
17.1 For Materials not manufactured/grown by the Contractor, the warranty shall be the current warranty provided by the manufacturer of the Materials. The Contractor shall not be bound by nor be responsible for any term, condition, representation or warranty other than that which is given by the manufacturer of the Materials.
17.2 To the extent permitted by statute, no warranty is given by the Contractor as to the quality or suitability of the Materials for any purpose and any implied warranty, is expressly excluded. The Contractor shall not be responsible for any loss or damage to the Materials, or caused by the Materials, or any part thereof however arising.
- Consumer Guarantees Act 1993
18.1 If the Contractor is acquiring Materials for the purposes of a trade or business, the Contractor acknowledges that the provisions of the Consumer Guarantees Act 1993 do not apply to the supply of Materials by the Contractor to the Contractor.
- Intellectual Property
19.1 Where the Contractor has designed, drawn, written plans or a schedule of Works, or created any products for the Contractor, then the copyright in all such designs, drawings, documents, plans, schedules and products shall remain vested in the Contractor, and shall only be used by the Contractor at the Contractor’s discretion. Under no circumstances may such designs, drawings and documents be used without the express written approval of the Contractor.
19.2 The Contractor warrants that all designs, specifications or instructions given to the Contractor will not cause the Contractor to infringe any patent, registered design or trademark in the execution of the Contractor’s order and the Contractor agrees to indemnify the Contractor against any action taken by a third party against the Contractor in respect of any such infringement.
19.3 The Contractor agrees that the Contractor may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings, plans or products which the Contractor has created for the Contractor.
- Default and Consequences of Default
20.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at the Contractor’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
20.2 If the Contractor owes the Contractor any money the Contractor shall indemnify the Contractor from and against all costs and disbursements incurred by the Contractor in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, the Contractor’s collection agency costs, and bank dishonour fees).
20.3 Further to any other rights or remedies the Contractor may have under this Contract, if a Contractor has made payment to the Contractor, and the transaction is subsequently reversed, the Contractor shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by the Contractor under this clause 20, where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Contractor’s obligations under this Contract.
20.4 Without prejudice to the Contractor’s other remedies at law the Contractor shall be entitled to cancel all or any part of any order of the Contractor which remains unfulfilled and all amounts owing to the Contractor shall, whether or not due for payment, become immediately payable if:
(a) any money payable to the Contractor becomes overdue, or in the Contractor’s opinion the Contractor will be unable to make a payment when it falls due;
(b) the Contractor has exceeded any applicable credit limit provided by the Contractor;
(c) the Contractor becomes insolvent or bankrupt, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
(d) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Contractor or any asset of the Contractor.
21.1 Without prejudice to any other rights or remedies the Contractor may have, if at any time the Contractor is in breach of any obligation (including those relating to payment and/or failure to remedy any breach in respect of this Contract within ten (10) working days of receipt by the Contractor of such notice/s) then the Contractor may suspend the Works immediately. The Contractor will not be liable to the Contractor for any loss or damage the Contractor suffers because the Contractor has exercised its rights under this clause.
21.2 The Contractor may cancel any contract to which these terms and conditions apply or cancel delivery of Works at any time before the Works are commenced by giving written notice to
the Contractor. On giving such notice the Contractor shall repay to the Contractor any sums paid in respect of the Price, less any amounts owing by the Contractor to the Contractor for Works already performed. The Contractor shall not be liable for any loss or damage whatsoever arising from such cancellation.
21.3 In the event that the Contractor cancels the delivery of Works the Contractor shall be liable for any and all loss incurred (whether direct or indirect) by the Contractor as a direct result of the cancellation (including, but not limited to, any loss of profits).
21.4 Cancellation of orders for products made to the Contractor’s specifications, or for non-stocklist items, will definitely not be accepted once production has commenced, or an order has been placed.
22.1 All emails, documents, images or other recorded information held or used by the Contractor is Personal Information as defined and referred to in clause 22.3 and therefore considered confidential. The Contractor acknowledges its obligation in relation to the handling, use, disclosure and processing of Personal Information pursuant to the Privacy Act 1993 (“the Act”) including Part II of the OECD Guidelines and as set out in Schedule 5A of the Act and any statutory requirements where relevant in a European Economic Area “EEA” then the EU Data Privacy Laws (including the General Data Protection Regulation “GDPR”) (collectively, “EU Data Privacy Laws”). The Contractor acknowledges that in the event it becomes aware of any data breaches and/or disclosure of the Contractors Personal Information, held by the Contractor that may result in serious harm to the Contractor, the Contractor will notify the Contractor in accordance with the Act and/or the GDPR. Any release of such Personal Information must be in accordance with the Act and the GDPR (where relevant) and must be approved by the Contractor by written consent, unless subject to an operation of law.
22.2 Notwithstanding clause 22.1, privacy limitations will extend to the Contractor in respect of Cookies where transactions for purchases/orders transpire directly from the Contractor’s website. The Contractor agrees to display reference to such Cookies and/or similar tracking technologies, such as pixels and web beacons (if applicable), such technology allows the collection of Personal Information such as the Contractor’s:
(a) IP address, browser, email client type and other similar details;
(b) tracking website usage and traffic; and
(c) reports are available to the Contractor when the Contractor sends an email to the Contractor, so the Contractor may collect and review that information (“collectively Personal Information”)
In order to enable / disable the collection of Personal Information by way of Cookies, the Contractor shall have the right to enable / disable the Cookies first by selecting the option to enable / disable, provided on the website prior to proceeding with a purchase/order via the Contractor’s website.
22.3 The Contractor authorises the Contractor or the Contractor’s agent to:
(a) access, collect, retain and use any information about the Contractor;
(i) (including, name, address, D.O.B, occupation, driver’s license details, electronic contact (email, Facebook or Twitter details), medical insurance details or next of kin and other contact information (where applicable), previous credit applications, credit history or any overdue fines balance information held by the Ministry of Justice) for the purpose of assessing the Contractor’s creditworthiness; or
(ii) for the purpose of marketing products and services to the Contractor.
(b) disclose information about the Contractor, whether collected by the Contractor from the Contractor directly or obtained by the Contractor from any other source, to any other credit provider or any credit reporting agency for the purposes of providing or obtaining a credit reference, debt collection or notifying a default by the Contractor.
22.4 Where the Contractor is an individual the authorities under clause 22.3 are authorities or consents for the purposes of the Privacy Act 1993.
22.5 The Contractor shall have the right to request the Contractor for a copy of the Personal Information about the Contractor retained by the Contractor and the right to request the Contractor to correct any incorrect Personal Information about the Contractor held by the Contractor.
- Suspension of Works
23.1 Where the Contract is subject to the Construction Contracts Act 2002, the Contractor hereby expressly acknowledges that:
(a) the Contractor has the right to suspend work within five (5) working days of written notice of its intent to do so if a payment claim is served on the Contractor, and:
(i) the payment is not paid in full by the due date for payment in accordance with clause 5.5 and/or any subsequent amendments or new legislation and no payment schedule has been given by the Contractor; or
(ii) a scheduled amount stated in a payment schedule issued by the Contractor in relation to the payment claim is not paid in full by the due date for its payment; or
(iii) the Contractor has not complied with an adjudicator’s notice that the Contractor must pay an amount to the Contractor by a particular date; and
(iv) the Contractor has given written notice to the Contractor of its intention to suspend the carrying out of construction work under the construction Contract.
(b) if the Contractor suspends work, it:
(i) is not in breach of Contract; and
(ii) is not liable for any loss or damage whatsoever suffered, or alleged to be suffered, by the Contractor or by any person claiming through the Contractor; and
(iii) is entitled to an extension of time to complete the Contract; and
(iv) keeps its rights under the Contract including the right to terminate the Contract; and may at any time lift the suspension, even if the amount has not been paid or an adjudicator’s determination has not been complied with.
(c) if the Contractor exercises the right to suspend work, the exercise of that right does not:
(i) affect any rights that would otherwise have been available to the Contractor under the Contract and Commercial Law Act 2017; or
(ii) enable the Contractor to exercise any rights that may otherwise have been available to the Contractor under that Act as a direct consequence of the Contractor suspending work under this provision;
(d) due to any act or omission by the Contractor, the Contractor effectively precludes the Contractor from continuing the Works or performing or complying with the Contractor’s obligations under this Contract, then without prejudice to the Contractor’s other rights and remedies, the Contractor may suspend the Works immediately after serving on the Contractor a written notice specifying the payment default or the act, omission or default upon which the suspension of the Works is based. All costs and expenses incurred by the Contractor as a result of such suspension and recommencement shall be payable by the Contractor as if they were a variation.
23.2 If pursuant to any right conferred by this Contract, the Contractor suspends the Works and the default that led to that suspension continues un-remedied subject to clause 21.1 for at least ten (10) working days, the Contractor shall be entitled to terminate the Contract, in accordance with clause 21.
- Service of Notices
24.1 Any written notice given under this Contract shall be deemed to have been given and received:
(a) by handing the notice to the other party, in person;
(b) by leaving it at the address of the other party as stated in this Contract;
(c) by sending it by registered post to the address of the other party as stated in this Contract;
(d) if sent by email to the other party’s last known email address.
24.2 Any notice that is posted shall be deemed to have been served, unless the contrary is shown, at the time when by the ordinary course of post, the notice would have been delivered.
25.1 If the Contractor at any time upon or subsequent to entering in to the Contract is acting in the capacity of trustee of any trust (“Trust”) then whether or not the Contractor may have notice of the Trust, the Contractor covenants with the Contractor as follows:
(a) the Contract extends to all rights of indemnity which the Contractor now or subsequently may have against the Trust and the trust fund;
(b) the Contractor has full and complete power and authority under the Trust to enter into the Contract and the provisions of the Trust do not purport to exclude or take away the right of indemnity of the Contractor against the Trust or the trust fund. The Contractor will not release the right of indemnity or commit any breach of trust or be a party to any other action which might prejudice that right of indemnity;
(c) the Contractor will not without consent in writing of the Contractor (the Contractor will not unreasonably withhold consent), cause, permit, or suffer to happen any of the following events:
(i) the removal, replacement or retirement of the Contractor as trustee of the Trust;
(ii) any alteration to or variation of the terms of the Trust;
(iii) any advancement or distribution of capital of the Trust; or
(iv) any resettlement of the trust property.
26.1 Any dispute or difference arising as to the interpretation of these terms and conditions or as to any matter arising hereunder, shall be submitted to, and settled by, either adjudication in accordance with the Construction Contracts Act 2002 and/or by arbitration in accordance with the Arbitration Act 1996 or its replacement(s).
26.2 The failure by either party to enforce any provision of these terms and conditions 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 validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
26.3 These terms and conditions and any contract to which they apply shall be governed by the laws of New Zealand and are subject to the jurisdiction of the New Plymouth Courts.
26.4 The Contractor shall be under no liability whatsoever to the Contractor for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Contractor arising out of a breach by the Contractor of these terms and conditions (alternatively the Contractor’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Works).
26.5 The Contractor may licence and/or assign all or any part of its rights and/or obligations under this Contract without the Contractor’s consent.
26.6 The Contractor cannot licence or assign without the written approval of the Contractor.
26.7 The Contractor may elect to subcontract out any part of the Works but shall not be relieved from any liability or obligation under this Contract by so doing. Furthermore, the Contractor agrees and understands that they have no authority to give any instruction to any of the Contractor’s sub-contractors without the authority of the Contractor.
26.8 The Contractor agrees that the Contractor may amend their general terms and conditions for subsequent future contracts with the Contractor by disclosing such to the Contractor in writing. These changes shall be deemed to take effect from the date on which the Contractor accepts such changes, or otherwise at such time as the Contractor makes a further request for the Contractor to provide Works to the Contractor.
26.9 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.
26.10 Both parties warrant that they have the power to enter into this Contract and have obtained all necessary authorisations to allow them to do so, they are not insolvent and that this Contract creates binding and valid legal obligations on them
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