“Supplier” means Taranaki Steelformers Limited, its successors and assigns or any person acting on behalf of and with the authority of Taranaki Steelformers Limted.
“Customer” means the person/s or any person acting on behalf of and with the authority of the Customer requesting the Supplier to provide the Works as specified in any proposal, quotation, order, invoice or other documentation, and:
- if there is more than one Customer, is a reference to each Customer jointly and severally; and
- if the Customer is a part of a Trust, shall be bound in their capacity as a trustee; and
includes the Customer’s executors, administrators, successors and permitted assigns.
“Materials” means all Materials or Works supplied by the Supplier to the Customer at the Customer’s request from time to time (where the context so permits the terms ‘Materials’ or ‘Works’ shall be interchangeable for the other).
“Price” means the Price payable (plus any Goods and Services Tax (“GST”) where applicable) for the Materials as agreed between the Supplier and the Customer in accordance with clause 5
The Customer is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Customer places an order for or accepts delivery of the Materials.
These terms and conditions may only be amended with the consent of both parties in writing and shall prevail to the extent of any inconsistency with any other document or contract between the Customer and the Supplier.
Any advice, recommendation, information, assistance or service provided by the Supplier in relation to Materials or Works supplied is given in good faith, is based on the Supplier’s own knowledge and experience and shall be accepted without liability on the part of the Supplier and it shall be the responsibility of the Customer to confirm the accuracy and reliability of the same in light of the use to which the Customer makes or intends to make of the Materials or Works.
The Customer accepts and agrees that in the event that the Supplier is required to provide Works outside normal business hours then the Supplier reserves the right to charge the Customer additional labour costs (penalty rates), unless otherwise agreed between the Supplier and the Customer.
The Customer acknowledges that the supply of Materials on credit shall not take effect until the Customer has completed a credit application with the Supplier and it has been approved with a credit limit established for the account.
In the event that the supply of Materials request exceeds the Customer’s credit limit and/or the account exceeds the payment terms, the Supplier reserves the right to refuse delivery.
The Customer acknowledges and accepts that the supply of Materials for accepted orders may be subject to availability and if, for any reason, Materials are not or cease to be available, the Supplier reserves the right to vary the Price with alternative Materials as per clause 2.
Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 22 of the Electronic Transactions Act 2002 or any other applicable provisions of that Act or any Regulations referred to in that Act.
3. Errors and Omission
The Customer acknowledges and accepts that the Supplier shall, without prejudice, accept no liability in respect of any alleged or actual error(s) and/or omission(s):
- resulting from an inadvertent mistake made by the Supplier in the formation and/or administration of this contract; and/or
- contained in/omitted from any literature (hard copy and/or electronic) supplied by the Supplier in respect of the Works.
In the event such an error and/or omission occurs in accordance with clause 1, and is not attributable to the negligence and/or wilful misconduct of the Supplier; the Customer shall not be entitled to treat this contract as repudiated nor render it invalid.
4. Change in Control
The Customer shall give the Supplier not less than fourteen (14) days prior written notice of any proposed change of ownership of the Customer and/or any other change in the Customer’s details (including but not limited to, changes in the Customer’s name, address, contact phone or fax number/s, change of trustees or business practice). The Customer shall be liable for any loss incurred by the Supplier as a result of the Customer’s failure to comply with this clause.
5. Price and Payment
At the Supplier’s sole discretion the Price shall be either:
- as indicated on any invoice provided by the Supplier to the Customer; or
- the Supplier’s quoted price (subject to clause 2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.
The Supplier reserves the right to change the Price:
- if a variation to the Materials which are to be supplied is requested; or
- if a variation to the Works originally scheduled (including any applicable plans or specifications) is requested; or
- where additional Works are required due to the discovery of hidden or unidentifiable difficulties (including, but not limited to, poor weather conditions, limitations to accessing the site, availability of machinery, safety considerations, discovery of asbestos, prerequisite work by any third party not being completed etc.) which are only discovered on commencement of the Works; or
- in the event of increases to the Supplier in the cost of labour or Materials which are beyond the Supplier’s control.
Variations will be charged for on the basis of the Supplier’s quotation, and will be detailed in writing, and shown as variations on the Supplier’s invoice. The Customer shall be required to respond to any variation submitted by the Supplier within ten (10) working days. Failure to do so will entitle the Supplier 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.
At the Supplier’s sole discretion a non-refundable deposit may be required.
At the agreement of both parties, payment of the Price may be subject to retention by the Customer of an amount (hereafter called the “Retention Money”), being a set amount or equal to a percentage of the Price. The Customer 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.
Time for payment for the Materials being of the essence, the Price will be payable by the Customer on the date/s determined by the Supplier, which may be:
- on delivery of the Materials;
- before delivery of the Materials for cash sales Customers;
- for certain approved Customers, due twenty (20) days following the end of the month in which a statement is posted to the Customer’s address or address for notices;
- the date specified on any invoice or other form as being the date for payment; or
- failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Customer by the Supplier.
Payment may be made by cash, cheque, bank cheque, electronic/on-line banking, credit card (a surcharge per transaction may apply), or by any other method as agreed to between the Customer and the Supplier.
The Customer shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Customer by the Supplier nor to withhold payment of any invoice because part of that invoice is in dispute.
Unless otherwise stated the Price does not include GST. In addition to the Price, the Customer must pay to the Supplier an amount equal to any GST the Supplier must pay for any supply by the Supplier under this or any other contract for the sale of the Materials. The Customer must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Customer pays the Price. In addition, the Customer 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.
6. Delivery of Materials
Delivery (“Delivery”) of the Materials is taken to occur at the time that:
- the Customer or the Customer’s nominated carrier takes possession of the Materials at the Supplier’s address; or
- the Supplier (or the Supplier’s nominated carrier) delivers the Materials to the Customer’s nominated address even if the Customer is not present at the address.
At the Supplier’s sole discretion the cost of delivery is in addition to the Price.
The Supplier may deliver the Materials in separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.
Any time specified by the Supplier for delivery of the Materials is an estimate only and the Supplier will not be liable for any loss or damage incurred by the Customer as a result of delivery being late. However both parties agree that they shall make every endeavour to enable the Materials to be delivered at the time and place as was arranged between both parties.
In the event that the Supplier is unable to supply the Materials as agreed solely due to any action or inaction of the Customer, then the Supplier shall be entitled to charge a reasonable fee for redelivery and/or storage.
Risk of damage to or loss of the Materials passes to the Customer on Delivery and the Customer must insure the Materials on or before Delivery.
If any of the Materials are damaged or destroyed following delivery but prior to ownership passing to the Customer, the Supplier is entitled to receive all insurance proceeds payable for the Materials. The production of these terms and conditions by the Supplier is sufficient evidence of the Supplier’s rights to receive the insurance proceeds without the need for any person dealing with the Supplier to make further enquiries.
If the Customer requests the Supplier to leave Materials outside the Supplier’s premises for collection or to deliver the Materials to an unattended location then such Materials shall be left at the Customer’s sole risk.
Where the Supplier is required to install the Materials the Customer warrants that the structure of the premises or equipment in or upon which these Materials are to be installed or erected is sound and will sustain the installation and Works incidental thereto and the Supplier shall not be liable for any claims, demands, losses, damages, costs and expenses howsoever caused or arising should the premises or equipment be unable to accommodate the installation.
The Customer acknowledges that in the event asbestos or any other toxic substances are discovered at the worksite that it is their responsibility to ensure the safe removal of the same. The Customer further agrees to indemnify the Supplier against any costs incurred by the Supplier as a consequence of such discovery. Under no circumstances will the Supplier handle removal of asbestos product, unless otherwise agreed between the Supplier and the Customer.
The Supplier shall be entitled to rely on the accuracy of any plans, specifications and other information provided by the Customer. The Customer acknowledges and agrees that in the event that any such information provided by the Customer or the Customer’s agent is inaccurate then the Supplier shall not be responsible for any losses, damages, or costs (howsoever arising) that the Customer suffers out of the use of the inaccurate plans, specifications or other information.
The Customer accepts and acknowledges that:
- the Supplier’s quotation for repairs to existing roofs shall be based only on the replacement of damaged tiles and/or any other roofing materials and shall not include the replacement of tiles and/or any other roofing materials with slight imperfections unless authorised by the Customer prior to the commencement of the Works. If the Customer requests the replacement of tiles that have slight imperfections but the Supplier does not deem to be defective or affect the integrity of the roof then this shall be a variation to the original quotation and clause 2will apply; and
- where the Customer has supplied materials to complete the Works, or existing materials are in place, the Customer acknowledges and accepts responsibility for the suitability of purpose, quality and any faults inherent in the materials. The Supplier shall not be responsible for any defects in the Works, any loss or damage to the Materials (or any part thereof), howsoever arising from the use of materials supplied by the Customer; and
the Supplier is only responsible for parts that are replaced by the Supplier and that in the event that other parts/Materials, subsequently fail, the Customer agrees to indemnify the Supplier against any loss or damage to the Materials, or caused by the Materials, or any part thereof howsoever arising; and
- Materials supplied may exhibit variations in shade, colour, texture, surface and finish, and may fade or change colour over time. The Supplier will make every effort to match batches of product supplied in order to minimise such variations but shall not be liable in any way whatsoever where such variations occur.
The Customer acknowledges that all descriptive specifications, illustrations, dimensions and weights stated in the Supplier’s or the manufacturer’s fact sheets, price lists or advertising material, are approximate only and are given by way of identification only. The Customer shall not be entitled to rely on such information, and any use of such does not constitute a sale by description, and does not form part of the contract, unless expressly stated as such in writing by the Supplier.
9. Site Access and Condition
It is the intention of the Supplier and agreed by the Customer that:
- the Customer shall ensure that the Supplier has clear and free access to the work site at all times to enable them to undertake the Works. The Supplier shall not be liable for any loss or damage to the work site (including, without limitation, damage to pathways, driveways and concreted or paved or grassed areas) unless due to the negligence of the Supplier; and
it is the Customer’s responsibility to provide the Supplier, while at the site, with adequate access to available water, electricity, toilet and washing facilities; and
- that it is the responsibility of the Customer to provide and have erected scaffolding to enable the Works to be undertaken (where in the Supplier’s opinion it is deemed necessary). It is also agreed that all scaffolding erected will comply with 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/or be fully licensed; and
- the Customer is entitled to have reasonable access to inspect the Works at all reasonable hours in the presence of the Supplier provided that the Supplier shall not be responsible for any damage done to the Works by the Customer, and the Customer does not interfere with the process of the Works, and the Customer complies with all requirements of Health and Safety in Employment Act 1992; and
- the Supplier is not responsible for the removal of rubbish from, or clean-up of, the worksite/s when it has been stated on the quotation/estimate that no allowance has been given for rubbish removal/dump fees. This is the responsibility of the Customer or the Customer’s agent; and.
- the Supplier shall not be responsible for the removal of rubbish left by any other contractor or sub-contractor.
10. Hidden Locations
Prior to the Supplier commencing any work the Customer must advise the Supplier of the precise location of all hidden services on the site and clearly mark the same. The hidden mains & 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.
Whilst the Supplier will take all care to avoid damage to any hidden services the Customer agrees to indemnify the Supplier 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 1.
11. Surplus Materials
Unless otherwise stated elsewhere in this contract:
- only suitable new Materials will be used; and
- demolished Materials remain the Customer’s property; and
- Materials that the Supplier brings to the site which are surplus remain the property of the Supplier.
The Supplier and the Customer agree that ownership of the Materials shall not pass until:
- the Customer has paid the Supplier all amounts owing to the Supplier; and
- the Customer has met all of its other obligations to the Supplier.
Receipt by the Supplier 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.
It is further agreed that until ownership of the Materials passes to the Customer in accordance with clause 1:
- the Customer is only a bailee of the Materials and must return the Materials to the Supplier on request.
- the Customer holds the benefit of the Customer’s insurance of the Materials on trust for the Supplier and must pay to the Supplier the proceeds of any insurance in the event of the Materials being lost, damaged or destroyed.
- the Customer 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 Customer sells, disposes or parts with possession of the Materials then the Customer must hold the proceeds of any such act on trust for the Supplier and must pay or deliver the proceeds to the Supplier on demand.
- the Customer should not convert or process the Materials or intermix them with other Materials but if the Customer does so then the Customer holds the resulting product on trust for the benefit of the Supplier and must sell, dispose of or return the resulting product to the Supplier as it so directs.
- the Customer irrevocably authorises the Supplier to enter any premises where the Supplier believes the Materials are kept and recover possession of the Materials.
the Supplier may recover possession of any Materials in transit whether or not delivery has occurred.
- the Customer 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 Supplier.
- the Supplier may commence proceedings to recover the Price of the Materials sold notwithstanding that ownership of the Materials has not passed to the Customer.
13. Personal Property Securities Act 1999 ("PPSA")
Upon assenting to these terms and conditions in writing the Customer acknowledges and agrees that:
- these terms and conditions constitute a security agreement for the purposes of the PPSA; and
- a security interest is taken in all Materials and/or collateral (account) – being a monetary obligation of the Customer to the Supplier for Works – that have previously been supplied and that will be supplied in the future by the Supplier to the Customer.
The Customer undertakes to:
- 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 Supplier may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register;
- indemnify, and upon demand reimburse, the Supplier 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;
- 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 Supplier; and
- immediately advise the Supplier of any material change in its business practices of selling the Materials which would result in a change in the nature of proceeds derived from such sales.
The Supplier and the Customer agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms and conditions.
The Customer waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA.
Unless otherwise agreed to in writing by the Supplier, the Customer waives its right to receive a verification statement in accordance with section 148 of the PPSA.
The Customer shall unconditionally ratify any actions taken by the Supplier under clauses 1 to 13.5.
14. Security and Charge
In consideration of the Supplier agreeing to supply the Materials, the Customer 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 Customer either now or in the future, to secure the performance by the Customer of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
The Customer indemnifies the Supplier from and against all the Supplier’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising the Supplier’s rights under this clause.
The Customer irrevocably appoints the Supplier and each director of the Supplier as the Customer’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 14 including, but not limited to, signing any document on the Customer’s behalf.
The Customer shall inspect the Materials on delivery and shall within seven (7) days of delivery (time being of the essence) notify the Supplier of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Customer shall afford the Supplier an opportunity to inspect the Materials within a reasonable time following delivery if the Customer believes the Materials are defective in any way. If the Customer 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 Supplier has agreed in writing that the Customer is entitled to reject, the Supplier’s liability is limited to either (at the Supplier’s discretion) replacing the Materials or repairing the Materials.
Materials will not be accepted for return other than in accordance with 1 above, and provided that:
- the Supplier has agreed in writing to accept the return of the Materials; and
- the Materials are returned at the Customer’s cost within fourteen (14) days of the delivery date; and
- the Supplier will not be liable for Materials which have not been stored or used in a proper manner; and
- the Materials are returned in the condition in which they were delivered and with all packaging material, brochures and instruction material in as new condition as is reasonably possible in the circumstances.
The Supplier may (in its discretion) accept the return of Materials for credit but this may incur a handling fee of fifteen percent (15%) of the value of the returned Materials plus any freight.
Subject to clause 1, non-stocklist items or Materials made to the Customer’s specifications are not acceptable for credit or return.
Subject to the conditions of warranty set out in clause 2 the Supplier warrants that if any defect in any workmanship of the Supplier becomes apparent and is reported to the Supplier within twelve (12) months of the date of delivery (time being of the essence) then the Supplier will either (at the Supplier’s sole discretion) replace or remedy the workmanship.
The conditions applicable to the warranty given by clause 1 are:
the warranty shall not cover any defect or damage which may be caused or partly caused by or arise through:
- failure on the part of the Customer to properly maintain any Materials; or
- failure on the part of the Customer to follow any instructions or guidelines provided by the Supplier; or
- any use of any Materials otherwise than for any application specified on a quote or order form; or
- the continued use of any Materials after any defect becomes apparent or would have become apparent to a reasonably prudent operator or user; or
- fair wear and tear, any accident or act of God.
- the warranty shall cease and the Supplier shall thereafter in no circumstances be liable under the terms of the warranty if the workmanship is repaired, altered or overhauled without the Supplier’s consent.
- in respect of all claims the Supplier shall not be liable to compensate the Customer for any delay in either replacing or remedying the workmanship or in properly assessing the Customer’s claim.
For Materials not manufactured by the Supplier, the warranty shall only be the current warranty for Materials manufactured by Colorsteel. The Supplier 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. Consumer Guarantees Act 1993
If the Customer is acquiring Materials for the purposes of a trade or business, the Customer acknowledges that the provisions of the Consumer Guarantees Act 1993 do not apply to the supply of Materials by the Supplier to the Customer.
18. Intellectual Property
Where the Supplier has designed, drawn or developed Materials for the Customer, then the copyright in any designs and drawings and documents shall remain the property of the Supplier. Under no circumstances may such designs, drawings and documents be used without the express written approval of the Supplier.
The Customer warrants that all designs, specifications or instructions given to the Supplier will not cause the Supplier to infringe any patent, registered design or trademark in the execution of the Customer’s order and the Customer agrees to indemnify the Supplier against any action taken by a third party against the Supplier in respect of any such infringement.
The Customer agrees that the Supplier may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings or Materials which the Supplier has created for the Customer.
19. Default and Consequences of Default
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 Supplier’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
If the Customer owes the Supplier any money the Customer shall indemnify the Supplier from and against all costs and disbursements incurred by the Supplier in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, the Supplier’s collection agency costs, and bank dishonour fees).
Further to any other rights or remedies the Supplier may have under this contract, if a Customer has made payment to the Supplier, and the transaction is subsequently reversed, the Customer shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by the Supplier under this clause 19 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Customer’s obligations under this contract.
Without prejudice to the Supplier’s other remedies at law the Supplier shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to the Supplier shall, whether or not due for payment, become immediately payable if:
- any money payable to the Supplier becomes overdue, or in the Supplier’s opinion the Customer will be unable to make a payment when it falls due;
- the Customer has exceeded any applicable credit limit provided by the Supplier;
- the Customer becomes insolvent, 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
- a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer.
Without prejudice to any other remedies the Supplier may have, if at any time the Customer is in breach of any obligation (including those relating to payment) under these terms and conditions the Supplier may suspend or terminate the supply of Materials to the Customer. The Supplier will not be liable to the Customer for any loss or damage the Customer suffers because the Supplier has exercised its rights under this clause.
The Supplier may cancel any contract to which these terms and conditions apply or cancel delivery of Materials at any time before the Materials are delivered by giving written notice to the Customer. On giving such notice the Supplier shall repay to the Customer any money paid by the Customer for the Materials. The Supplier shall not be liable for any loss or damage whatsoever arising from such cancellation.
In the event that the Customer cancels delivery of Materials the Customer shall be liable for any and all loss incurred (whether direct or indirect) by the Supplier as a direct result of the cancellation (including, but not limited to, any loss of profits).
Cancellation of orders for Materials made to the Customer’s specifications, or for non-stocklist items, will definitely not be accepted once production has commenced, or an order has been placed.
21. Privacy Act 1993
The Customer authorises the Supplier or the Supplier’s agent to:
- access, collect, retain and use any information about the Customer;
(including any overdue fines balance information held by the Ministry of Justice) for the purpose of assessing the Customer’s creditworthiness; or
- for the purpose of marketing products and services to the Customer.
- disclose information about the Customer, whether collected by the Supplier from the Customer directly or obtained by the Supplier 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 Customer.
Where the Customer is an individual the authorities under clause 1 are authorities or consents for the purposes of the Privacy Act 1993.
The Customer shall have the right to request the Supplier for a copy of the information about the Customer retained by the Supplier and the right to request the Supplier to correct any incorrect information about the Customer held by the Supplier.
22. Compliance with Laws
The Customer and the Supplier 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 guidelines regarding health and safety laws relating to building/construction sites and any other relevant safety standards or legislation.
The Supplier has not and will not at any time assume any obligation as the Customer’s agent or otherwise which may be imposed upon the Customer from time to time pursuant to the Health & Safety at Work Act 2015, including any subsequent regulations (the “HSW Act”) arising from the engagement of Works under this contract. Unless other agreed, the parties agree that for the purposes of the HSW Act, the Supplier shall not be the person who controls the place of work in terms of the HSW Act.
The Customer shall obtain (at the expense of the Customer) all licenses, approvals, applications and permits that may be required for the Works.
23. Construction Contract Act 2002
The Customer hereby expressly acknowledges that:
- the Supplier 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 Customer, and:
- the payment is not paid in full by the due date for payment and no payment schedule has been given by the Customer; or
- a scheduled amount stated in a payment schedule issued by the Customer in relation to the payment claim is not paid in full by the due date for its payment; or
- the Customer has not complied with an adjudicator’s notice that the Customer must pay an amount to the Supplier by a particular date; and
- the Supplier has given written notice to the Customer of its intention to suspend the carrying out of construction work under the construction contract.
- if the Supplier suspends work, it:
- is not in breach of contract; and
- is not liable for any loss or damage whatsoever suffered, or alleged to be suffered, by the Customer or by any person claiming through the Customer; and
- is entitled to an extension of time to complete the contract; and
- 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.
- if the Supplier exercises the right to suspend work, the exercise of that right does not:
affect any rights that would otherwise have been available to the Supplier under the Contractual Remedies Act 1979; or
- enable the Customer to exercise any rights that may otherwise have been available to the Customer under that Act as a direct consequence of the Supplier suspending work under this provision.
24. Services of Notices
Any written notice given under this contract shall be deemed to have been given and received:
- by handing the notice to the other party, in person;
- by leaving it at the address of the other party as stated in this contract;
- by sending it by registered post to the address of the other party as stated in this contract;
- if sent by facsimile transmission to the fax number of the other party as stated in this contract (if any), on receipt of confirmation of the transmission;
- if sent by email to the other party’s last known email address.
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.
If the Customer 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 Supplier may have notice of the Trust, the Customer covenants with the Supplier as follows:
- the contract extends to all rights of indemnity which the Customer now or subsequently may have against the Trust and the trust fund;
- the Customer 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 Customer against the Trust or the trust fund. The Customer 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.
- the Customer will not without consent in writing of the Supplier (the Supplier will not unreasonably withhold consent), cause, permit, or suffer to happen any of the following events;
- the removal, replacement or retirement of the Customer as trustee of the Trust;
- any alteration to or variation of the terms of the Trust;
- any advancement or distribution of capital of the Trust; or
- any resettlement of the trust property.
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.
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 of New Zealand.
The Supplier shall be under no liability whatsoever to the Customer for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by the Supplier of these terms and conditions (alternatively the Supplier’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Materials).
The Supplier may licence and/or assign all or any part of its rights and/or obligations under this contract without the Customer’s consent.
The Customer cannot licence or assign without the written approval of the Supplier.
The Supplier 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 Customer agrees and understands that they have no authority to give any instruction to any of the Supplier’s sub-contractors without the authority of the Supplier.
The Customer agrees that the Supplier may amend these terms and conditions by notifying the Customer in writing. These changes shall be deemed to take effect from the date on which the Customer accepts such changes, or otherwise at such time as the Customer makes a further request for the Supplier to provide Materials to the Customer.
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).
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.
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.