TERMS & CONDITIONS

TERMS AND CONDITIONS - SERVICES (“SERVICES CONDITIONS”)

 

1. DEFINITIONS AND INTERPRETATION

 

1.1 Definitions

In this Contract the following definitions apply:

Business Day means a day other than Saturday or Sunday, public holiday under the Holidays Act 2003 or Otago anniversary day;

Charges means the charges payable by the Client in accordance with clause 4 and as set out in the Schedule or the Quotation as applicable;

Completion Date means the date the Services are completed;

Contract means this contract including the Schedule and the Quotation (where applicable);

Estimated Completion Date means the estimated completion date as set out in the Schedule or Quotation as applicable;

Force Majeure Event means any event beyond the reasonable control of the Contractor which results in non-performance of the Services or part thereof including, but not limited to, acts of God, war, strikes, lock-outs, accidents, fire, flood, earthquake, blockage, terrorist activity;

Good Industry Practice means the exercise of that degree of skill, diligence and prudence that would reasonably be expected from a provider of services in New Zealand that are substantially similar to the Services;

GST means goods and services tax as defined in the Goods and Services Tax Act 1985;

Law means any statute, regulation, bylaw, ordinance or subordinate legislation in force from time to time to which a party is subject, the common law and the law of equity as applicable to the parties from time to time, or any binding court order, judgment or decree;

Property means the Client’s property at which the Services are to be provided;

Quotation means any quotation for the Services provided by the Contractor to the Customer;

Schedule means the schedule of this Contract;

Services means the services (and materials where applicable) to be provided by the Contractor to the Client at the Client’s request from time to time as described in the Schedule or Quotation and the terms “materials” and “Services” will be interchangeable with the other where the context permits;

Start Date means the start date as set out in the Schedule or Quotation as applicable.

1.2 Interpretation

In this Contract, unless the context otherwise requires:

(a) headings are inserted for convenience, not to affect the construction of the Contract;

(b) the singular includes the plural and vice versa;

(c) words with initial capitals have the meaning ascribed to them in context;

(d) persons include incorporated and unincorporated entities;

(e) words implying one gender include the other;

(f) a reference to a clause or sub clause is a reference to a clause or sub clause hereof;

(g) a reference to Contractor includes its agents, successors, and assigns;

(h) the word “including” does not imply limitation.

2  APPOINTMENT AND TERM

2.1 The Client appoints the Contractor, and the Contractor agrees, to provide the Services in accordance with this Contract. The Client is taken to have accepted and is immediately bound by these Services Conditions if the Client places an order for or accepts performance of any Services. 

2.2 This Contract commences on the Start Date and will, subject to clause 10, continue until the Completion Date.

2.3 The Client agrees with the Contractor that the Estimated Completion Date is an estimate only and the Contractor will use reasonable endeavours to complete the Services by the Estimated Completion Date but the actual Completion Date may vary due to unforeseen factors or factors beyond the Contractor’s control, such as adverse weather conditions or failure by the Client to make a selection or have the Property ready for the Services to commence.

3 PROVISION OF SERVICES

3.1 The Contractor will provide the Services:

(a) in accordance with Good Industry Practice;

(b) in an efficient, professional and cost-effective manner; and

(c) in accordance with any reasonable instructions or directions given by the Client agreed to by the Contractor.

3.2 In performing the Services, the Contractor will:

(a) use reasonable endeavours to avoid damaging or adversely affecting the Client’s property; 

(b) comply with all Laws and relevant Client policies and procedures (where applicable) that have been provided to the Contractor; and

(c) not knowingly cause the Client to be in breach of any Law.

3.3 The Contractor may deliver the Services in separate instalments. Each separate instalment will be invoiced and shall be paid in accordance with this Contract.

3.4 The Client gives the Contractor an irrevocable right and authority to enter, and for the Contractor to bring vehicles at any time onto, the Property to perform the Services and the Contractor will not be liable for any loss or damage to the Property in doing so. It is the Client’s responsibility to ensure that access is suitable for the weight of trucks and equipment being brought onto the Property by the Contractor. 

 

 

4 CHARGES AND PAYMENT

4.1 In consideration of the Contractor performing the Services under this Contract, the Client will pay to the Contractor the Charges for the Services (plus GST) in accordance with this clause and the Schedule. 

4.2 The Contractor reserves the right to amend the Charges if a variation to the Services originally scheduled is requested or additional Services are required due to the discovery of hidden or unidentifiable difficulties which are only discovered after the commencement of the Services (including, without limitation, problems accessing the Property, unavailability of required machinery, safety considerations, hard rock barriers below the ground, iron reinforcing rods in concrete or hidden pipes), or due to increases in the cost of materials or labour which are beyond the Contractor’s reasonable control.

4.3 The Contractor is entitled to require payment of a deposit prior to the Start Date.

4.4 A Quotation provided by the Contractor will be binding on the Contractor only where it is accepted by the Client in writing within 20 Business Days of receipt.

4.5 The Contractor will provide the Client with a valid tax invoice for all Charges. Where payment is not required upfront by the Contractor, the Client will pay the tax invoice by the 20th calendar day of the same month the invoice is issued. 

4.6 If the Client disputes any part of a tax invoice, the Client must notify the Contractor within one month of the date of receipt of the tax invoice. The Client may not withhold payment of the disputed portion but may seek to claim this through dispute resolution channels. 

4.7 The Client may not deduct from any payments to be made to the Contractor, including any withholding taxes or other deductions unless it is required by Law to do so. 

4.8 Without prejudice to any other right or remedy that may be available to the Contractor, if the Client is in material breach of any provision of this Contract, the Contractor may suspend of all or any part of the Services until that breach is remedied. 

4.9 Late payment of any invoice by the Client will constitute a default and the Contractor will be entitled to charge default interest at the Contractor’s bank’s overdraft rate plus 2% on overdue amounts from the due date to the date of payment. The Contractor may also reverse any previously agreed discount if payment is not made in full by the due date. Credit will not be extended on overdue accounts.

 

4.10 The Contractor may recover any additional fees incurred, including but not limited to debt collection fees, for the recovery of any invoices not received by the due date. 

5 WARRANTIES

5.1 Both parties represent warrant and undertake that:

(a) they have full power, capacity and authority to execute, deliver, and perform their obligations under this Contract; and

(b) they have, and will continue to have, all necessary regulatory approvals, releases, waivers and consents required to enable the Contractor to lawfully complete the Services.

5.2 The Client warrants that it has provided a list of all known hazards at the Property (if any) to the Contractor, that there is no infrastructure (including without limitation electrical and gas services, water and wastewater pipes, telephone and internet cables) under in or on the Property where the Services are to be performed and that the structure of the premises of equipment in or upon which the installation of materials is to be performed is sound and will sustain the installation.  The Client will indemnify the Contractor against all liability claims, loss, damage, costs and fines howsoever caused or arising in connection with the performance of the Services.

 

5.3 The Client shall obtain at their cost all licences and approvals that may be required for carrying out the Services. The Client warrants that the Property will comply with any occupational health and safety Laws relating to the building or construction sites and any other relevant safety standards or Laws.

6 MATERIALS

6.1 Where the Contractor is supplying materials as part of the Services, the Client shall inspect the materials to be used in the performance of the Services on delivery and shall within 5 Business 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 Client shall allow the Contractor to inspect the materials within a reasonable time of receiving such notice. If the Client does not provide a notice in accordance with the above, the Client will be deemed to have accepted the materials. For defective materials which the Contractor has agreed in writing that the Client is entitled to reject, the Contractor’s liability is limited to either replacing the materials or repairing the materials (at the Contractor’s discretion).

 

6.2 Where the Contractor supplies materials as part of the Services, ownership of the materials will not pass to the Client until the Client has paid all amounts owing and met all other obligations to the Contractor. Until ownership in the materials passes under this clause, the Client is only a bailee of the materials and, unless the materials become fixtures, must return the materials to the Contractor on request.

 

6.3 Where the Client has supplied materials for use in the Services, the Client accepts responsibility for the suitability of purpose, quality and any faults inherent in the materials. The Contractor will not be responsible for any defects in the Services, any loss or damage to the materials (or any part thereof) arising from the use of materials supplied by the Client.

7 LIABILITY AND INSURANCE

7.1 Subject to clause 7.3, the Contractor will indemnify the Client against any direct liability including claims, losses, damages, costs and expenses awarded against, incurred or suffered by the Client arising directly out of or resulting from any unlawful, negligent or wilful act or omission by the Contractor, except to the extent attributable to the Client.

7.2 In no event will the Contractor be liable (whether in contract, tort, or otherwise) to the Client for any indirect, consequential or special loss or damage, loss of profit, business, revenue, goodwill or anticipated savings, arising out of or resulting from this Contract.

 

7.3 Without limiting clause 7.2 or a claim made under the CGA, the maximum aggregate liability of the Contractor to the Client whether in tort, contract or otherwise in relation to claims, liabilities, losses, damages, costs or expenses arising out of the provision of the Services under this Contract is limited to the Charges (excluding GST and disbursements).

7.4 While performing the Services, the Contractor will maintain insurance coverage in amounts reflecting Good Industry Practice and against risks that are normal for businesses similar to that of the Contractor including public liability coverage.

8 FORCE MAJEURE

8.1 The Contractor will not be liable to compensate the Client for any loss suffered, consequential or otherwise, as a result of any delay or failure to perform the Services during the time and to the extent that such performance is prevented, wholly or substantially, by reason of any Force Majeure Event. 

8.2 The Contractor will notify the Client as soon as practicable after the Force Majeure Event occurs including providing an estimate of the time likely to be required to overcome it. The Contractor will use reasonable commercial endeavours to remedy or mitigate the effect of the Force Majeure Event and minimise the impact on its obligations to the Client.

9 DISPUTE RESOLUTION

9.1 If any dispute or difference arises between the parties in relation to this Contract, both parties will endeavour in good faith to settle the dispute by agreement.  The Contractor will continue providing the Services in accordance with this Contract, and the Client will continue to make payments accordingly to the Contractor, notwithstanding the dispute.

9.2     If the dispute or difference is not settled by agreement within 10 Business Days under clause 9.1 then, unless agreed otherwise, it shall be referred to a qualified mediator to be agreed by the parties, or failing agreement within 10 Business Days, to be appointed by the President of the New Zealand Law Society.  In the event of a referral to mediation:

(a) the mediator shall be deemed not to be acting as an expert or as an arbitrator;

(b) the mediator shall determine the procedure and timetable for the mediation; and

(c) the cost of the mediation shall be shared equally between the parties (unless the mediator suggests otherwise).

 

9.3     Neither party may issue legal proceedings (other than for urgent interlocutory relief) in respect of such dispute or difference unless that party has first taken all reasonable steps to comply with clauses 9.1 and 9.2.

10 TERMINATION

10.1   Either party may terminate this Contract at any time by giving the other party notice in writing where:

(a) the other party commits a material breach of this Contract which is incapable of being remedied;

(b) the other party commits a material breach of this Contract that is capable of being remedied but which is not remedied within 10 Business Days of that party receiving written notice of the breach from the non-breaching party;

(c)  any step is taken to appoint a receiver, manager, trustee in administration, liquidator, provisional liquidator, statutory manager, administrator, or other like person over the whole or any part of the other party’s assets or business.

10.2 Except as is otherwise provided, termination or expiry of this Contract will not affect:

(a) any rights and remedies available to a party under this Contract which have accrued up to and including the date of termination or expiry; and

(b) the provisions of this Contract which expressly, or by their nature, survive termination or expiry.

11 CONSTRUCTION CONTRACTS ACT 2002

11. The Construction Contracts Act 2002 applies to the provision of Services. The Contractor is entitled to suspend performance of the Services within 5 Business Days of written notice to the Client of its intention to do so if a payment claim is served on the Client and:

(a) the payment is not paid in full by the due date for payment and no payment schedule has been given by the Client; or

(b) a scheduled amount stated in a payment schedule issued by the Client in relation to the payment claim is not paid in full by the due date for payment; or

(c) the Client has not complied with an adjudicator’s notice that the Client must pay an amount to the Contractor by a particular date.

 

11.2   If the Contractor suspends work under clause 11.1, the Contractor will not be in breach of contract nor liable for any loss or damage whatsoever caused to the Client. The Contractor will be entitled to an extension of time to complete the Services and will retain its rights under the Contract including the right to terminate and may at any time lift the suspension even if the amount remains unpaid or an adjudicator’s determination has not been complied with.

11.3   If the Contractor suspends work under clause 11.1, the exercise of that right does not affect any rights that would otherwise have been available to the Contractor under the Contract and Commercial Law Act 2017 or enable the Client to exercise any rights that may otherwise have been available to the Client under that Act as a result of the Contractor suspending work under this clause.

12 ASSIGNMENT AND SUBCONTRACTING

12.1 The Client shall not assign any of the Client’s rights or interests under the Contract to any person or entity. 

12.2 The Contractor may at any time assign its rights or interests, or any part thereof, or transfer its obligations or any part thereof under the Contract, to any person or entity. 

12.3 The Contractor is entitled to subcontract its obligations under this Contract and in the event of doing so, the Contractor remains fully responsible as primary obliger for all work carried out by any subcontractor.

13 PERSONAL PROPERTY SECURITIES ACT 1999 (“PPSA”)

13.1 The parties agree that equipment used to perform the Services may in certain circumstances, where agreed between the parties, be left on the Property but that title to such equipment remains with the Contractor always. 

13.2 The Client agrees that the materials used in the provision of the Services may create a security interest to secure the full payment of all moneys payable to the Contractor and the performance by the Client of all its other obligations to the Contractor and this document constitutes a security agreement for the purposes of the PPSA and the provisions of clauses 13.3 to 13.5 apply. Unless otherwise defined in the Contract, all terms in this clause 13 have the meaning given to them in the PPSA and section references are sections to sections of the PPSA.

13.3 On the request of the Contractor, the Client shall promptly execute any documents, provide all necessary information, and do anything else required by the Contractor to ensure that the security interest created under the Contract constitutes a perfected security interest in the materials used to perform the Services and their proceeds which will have priority over all other security interests in the materials. 

 

13.4 The Client will pay to the Contractor all fees and expenses incurred by the Contractor in relation to the filing and maintenance of a financing statement in connection with the Contract. 

13.5 The Client waives its rights under sections 114(1)(a),116, 120(2), 121, 125, 126, 127, 129, 131, 133 and 148 of the PPSA. 

 

 

14 PRIVACY

14.1 Where the Client is an individual (as defined in the Privacy Act 1993), the Contractor will comply with its obligations under the Privacy Act 1993 and General Data Protection Regulation (to the extent applicable) as set out in the Miller & Co. group privacy policy (found at www.millerandcohire.co.nz) as amended from time to time (“Privacy Policy”). By proceeding with the Contract, the Client acknowledges that they have read and agree to the Privacy Policy.

14.2 The Client and each person who signs the Contractor’s application for credit, where applicable, authorises the Contractor: 

(a) to collect, retain and use information about the Client or such other signatory from any person for assessing the Client’s or such other signatory’s creditworthiness;

(b) to disclose information about the Client or such other signatory: 

(i)  to any person who guarantees, or who provides insurance, or who provides any other credit support, in relation to the Client’s obligations to the Contractor; and/or 

(ii) to such persons as may be necessary or desirable to enable the Contractor to exercise any rights under the Contract.

 

 

15 MISCELLANEOUS

15.1 This Contract is not intended to be either a consumer credit contract or a consumer lease for the purposes of the Credit Contracts and Consumer Finance Act 2003.

15.2   Where the Consumer Guarantees Act 1993 (“CGA”) applies to the supply of the Services under this Contract, the Client may have additional rights under the CGA. For the avoidance of doubt, where the Client is a consumer as that term is defined in the CGA, nothing in this Contract affects, or attempts to exclude in any way, the Client’s rights under the CGA. Where the Client is acquiring the Services in trade as defined in the CGA, the Customer acknowledges that the provisions of the CGA do not apply to the provision of Services.

 

15.3   The Contractor is entitled to amend these Services Conditions at any time and they will take effect from the date the amended services conditions are provided to the Client. The Client will be taken to have accepted the amended services conditions if the Client makes a request for the Contractor to provide further Services to the Client after that date.

 

15.4   If at any time any provision of the Contract is or becomes illegal, invalid, or unenforceable in any respect under New Zealand Law, that will not affect or impair the legality, validity, or enforceability of any other provision of this Contract. 

 

15.5   This Contract records the entire arrangement between the parties relating to the matters dealt with in this Contract and supersedes all previous arrangements, understandings, or representations whether, written, oral or both, relating to these matters. 

 

15.6   Nothing expressed or implied in this Contract will constitute either party as the partner, agent, employee or officer of, or joint venturer with, the other party. No party will have the power to incur any obligation on behalf of or incur any liability on the party of the other party.

 

15.7   Neither party will be deemed to have waived any right under this Contract unless the waiver is in writing and signed by the parties. Any failure or delay by a party to exercise any right or power under this Contract will not operate as a waiver of that right or power. Any waiver by a party of any breach, or failure to exercise and right, will not constitute a waiver of any subsequent breach or continuing right.

 

15.8   This Contract is governed by the laws of New Zealand. The parties submit to the jurisdiction of the courts of New Zealand. 

 

15.9   This Contract is properly executed if each party executes either this document or an identical document. In the latter case, this document takes effect when the separately executed documents are exchanged between the parties.

 

15.10 Notices shall be properly served on a person if delivered by hand or left at or posted in a letter to the address of the party as recorded in the Schedule. Service by post shall be considered effected on the third Business Day after the day the notice was posted.