Terms of Trade

Terms & Conditions of Trade

1. Preamble

1.1 All Services of the Supplier, whether gratuitous or not, are supplied subject to these terms and conditions and:

The provisions of Part I shall apply to the provision of all services;
The provisions of Part II shall only apply to the provision of maintenance or pump services or drainage services; and
The provisions of Part III shall only apply to the provision of environmental services or drainage services.

PART I - GENERAL CLAUSES

2. Definitions

2.1 “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.

2.2 “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 Customer does not wish to allow Cookies to operate in the background when using the Supplier’s website, then the Customer shall have the right to enable / disable the Cookies first by selecting the option to enable / disable provided on the website, prior to making enquiries via the website.

2.3 “Customer” means the person/s, entities or any person acting on behalf of and with the authority of the Customer requesting the Supplier to provide the Services 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 partnership, it shall bind each partner 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.

2.4 “Goods” means all Goods or Services supplied by the Supplier to the Customer at the Customer’s request from time to time (where the context so permits the terms ‘Goods’ or ‘Services’ shall be interchangeable for the other).

2.5 “Price” means the Price payable (plus any Goods and Services Tax (“GST”) where applicable) for the Goods as agreed between the Supplier and the Customer in accordance with clause 8 below.

2.6 “Supplier” means means, as the context requires: Hanlon Plumbing Limited (337203), Hanlon Maintenance Limited (6258545), Hanlon Pump Services Limited (6259010), Hanlon Environmental Limited (6259013) or Hanlon Drainage Limited (7127402), its successors and assigns or any person acting on behalf of and with the authority of the Supplier.

3. Acceptance

3.1 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 Goods.

3.2 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.

3.3 Any amendment to the terms and conditions contained in this Contract may only be amended in writing by the consent of both parties.

3.4 The Customer acknowledges and accepts that:

in the event that the supply of Goods requested exceeds the Customer’s credit limit and/or the account exceeds the payment terms, the Supplier reserves the right to refuse delivery;
the supply of Goods:
(i) 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; and
(ii) for accepted orders may be subject to availability and if, for any reason, Goods are not or cease to be available, the Supplier reserves the right to substitute comparable Goods (or components of the Goods) and vary the Price as per clause 8.2. In all such cases the Supplier will notify the Customer in advance of any such substitution, and also reserves the right to place the Customer’s order on hold until such time as the Supplier and the Customer agree to such changes.

3.5 Any advice, recommendation, information, assistance, or service provided by the Supplier in relation to the Goods or Services supplied is given in good faith to the Customer, or the Customer’s agent and is based on the Supplier’s own knowledge and experience and shall be accepted without liability on the part of the Supplier. Where such advice or recommendations are not acted upon then the Supplier shall require the Customer or their agent to authorise commencement of the Services in writing. The Supplier shall not be liable in any way whatsoever for any damages or losses that occur after any subsequent commencement of the Services.

3.6 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.

4. Authorised Representatives

4.1 Unless otherwise limited as per clause 4.2 the Customer agrees that should the Customer introduce any third party to the Supplier as the Customer’s duly authorised representative, that once introduced that person shall have the full authority of the Customer to order any works, materials or Services on the Customer’s behalf and/or to request any variation to the works, materials or Services on the Customer’s behalf (such authority to continue until all requested works have been completed or the Customer otherwise notifies the Supplier in writing that said person is no longer the Customer’s duly authorised representative).

4.2 In the event that the Customer’s duly authorised representative as per clause 4.1 is to have only limited authority to act on the Customer’s behalf then the Customer must specifically and clearly advise the Supplier in writing of the parameters of the limited authority granted to their representative.

4.3 The Customer specifically acknowledges and accepts that they will be solely liable to the Supplier for all additional costs incurred by the Supplier (including the Supplier profit margin) in providing any works, materials, Services or variation/s requested by the Customer’s duly authorised representative (subject always to the limitations imposed under clause 4.2 (if any)).

5. Errors and Omissions

5.1 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 Services.

5.2 In the event such an error and/or omission occurs in accordance with clause 5.1, 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.

6. Change in Control

6.1 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 and 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.

7. Credit Card Information

7.1 The Supplier will:

keep the Customer’s personal details, including credit card details for only as long as is deemed necessary by the Supplier;
not disclose the Customer’s credit card details to any third party; and
not unnecessarily disclose any of the Customer’s personal information, except is accordance with the Privacy Act (clause 20) or where required by law.

7.2 The Customer expressly agrees that, if pursuant to this Contract, there are any unpaid charges, other amounts due and outstanding by the Customer, the Supplier is entitled to immediately charge the Customer’s nominated credit card for these amounts, and is irrevocably authorised to complete any documentation and take any action to recover from the credit card issuer any and all amounts which may be due by the Customer pursuant to the terms of this Contract.

8. Price and Payment

8.1 At the Supplier’s sole discretion the Price shall be either:

as indicated on invoices provided by the Supplier to the Customer in respect of Services performed or Goods supplied; or
the Supplier’s Price at the date of delivery of the Services according to the Supplier’s current Price list; or
the Supplier’s quoted Price (subject to clause 8.2) which shall be binding upon the Supplier provided that the Customer shall accept the Supplier’s quotation in writing within seven (7) days.

8.2 The Supplier reserves the right to change the Price

if a variation to the Goods which are to be supplied is requested; or
if a variation to the Services originally scheduled (including any applicable plans or specifications) is requested; or
where additional Services are required due to the discovery of hidden or unidentifiable difficulties (including, but not limited to, poor weather conditions, limitations to accessing the site, as a result of delays from third party suppliers, obscured site/building defects which require remedial work, health hazards and safety considerations (such as the discovery of asbestos), prerequisite work by any third party not being completed, hard rock barriers below the surface, iron reinforcing rods in concrete, or hidden pipes and wiring/cabling, etc.) which are only discovered on commencement of the Services; or
if during the course of the Services, the Goods cease to be available from the Supplier’s third party suppliers, then the Supplier reserves the right to provide alternative Goods, subject to prior confirmation and agreement of both parties; or
in the event of increases to the Supplier in the cost of labour or materials (including but not limited to overseas transactions that may increase as a consequence of variations in foreign currency rates of exchange and/or international freight and insurance charges) which are beyond the Supplier’s control.

8.3 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.

8.4 At the Supplier’s sole discretion a deposit may be required.

8.5 Time for payment for the Goods being of the essence, the Price will be payable by the Customer on the date/s determined by the Supplier, which may be:

on completion of the Services;
by way of progress payments in accordance with the Supplier’s specified progress payment schedule. Such progress payment claims may include the reasonable value of authorised variations and the value of any Goods delivered to the site but not yet installed;
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.

8.6 Payment may be made by 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.

8.7 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 Services during which time all Services 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 18A to 18I of the Construction Contracts Act 2002.

8.8 The Supplier may in its discretion allocate any payment received from the Customer towards any invoice that the Supplier determines and may do so at the time of receipt or at any time afterwards. On any default by the Customer the Supplier may re-allocate any payments previously received and allocated. In the absence of any payment allocation by the Supplier, payment will be deemed to be allocated in such manner as preserves the maximum value of the Supplier’s Purchase Money Security Interest (as defined in the PPSA) in the Goods.

8.9 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 the request for payment by the Supplier is a claim made under the Construction Contracts Act 2002. Nothing in this clause 8.9 prevents the Customer from the ability to dispute any invoice.

8.10 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 Goods. 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.

9. Provision of the Services

9.1 Subject to clause 9.2 it is the Supplier’s responsibility to ensure that the Services start as soon as it is reasonably possible.

9.2 The Services’ commencement date will be put back and the completion date extended by whatever time is reasonable in the event that the Supplier claims an extension of time (by giving the Customer written notice) where completion is delayed by an event beyond the Supplier’s control, including but not limited to any failure by the Customer to:

make a selection; or
have the site ready for the Services; or
notify the Supplier that the site is ready.

9.3 The Supplier may deliver the Services by separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions. The Customer acknowledges and accepts that the next stage of work will not be commenced until the payment of the previous stage has been paid in full.

9.4 In the event that the Supplier is required to provide the Services urgently, that may require the Supplier staff to work outside normal business hours (including but not limited to working through lunch breaks, weekends and/or public holidays) then the Supplier reserves the right to charge the Customer additional labour costs (penalty rates will apply), unless otherwise agreed between the Supplier and the Customer.

9.5 Any time specified by the Supplier for delivery of the Goods 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 Goods 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 Goods 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.

10. Risk

10.1 If the Supplier retains ownership of the Goods under clause 11 then:

where the Supplier is supplying Goods only, all risk for the Goods shall immediately pass to the Customer on delivery and the Customer must insure the Goods on or before delivery. Delivery of the Goods shall be deemed to have taken place immediately at the time that either;
(i) the Customer or the Customer’s nominated carrier takes possession of the Goods at the Supplier’s address; or
(ii) the Goods are delivered by the Supplier or the Supplier’s nominated carrier to the Customer’s nominated delivery address (even if the Customer is not present at the address).
unless otherwise agreed, where the Supplier is to both supply and install Goods then the Supplier shall maintain a contract works insurance policy until the Services are completed. Upon completion of the Services all risk for the Services shall immediately pass to the Customer.

10.2 At the Supplier’s sole discretion the cost of delivery is in addition to the Price.

10.3 Notwithstanding the provisions of clause 10.1 if the Customer specifically requests the Supplier to leave Goods outside the Supplier’s premises for collection or to deliver the Goods to an unattended location then such materials shall always be left at sole risk of the Customer and it shall be the Customer’s responsibility to ensure the Goods are insured adequately or at all. In the event that such Goods are lost, damaged or destroyed then replacement of the Goods shall be at the Customer’s expense.

11. Title

11.1 The Supplier and the Customer agree that ownership of the Goods 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.

11.2 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.

11.3 It is further agreed that until ownership of the Goods passes to the Customer in accordance with clause 11.1:

the Customer is only a bailee of the Goods and must return the Goods to the Supplier on request;
the Customer holds the benefit of the Customer’s insurance of the Goods on trust for the Supplier and must pay to the Supplier the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed;
the Customer must not sell, dispose, or otherwise part with possession of the Goods other than in the ordinary course of business and for market value. If the Customer sells, disposes or parts with possession of the Goods 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 Goods or intermix them with other goods 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 Goods are kept and recover possession of the Goods;
the Supplier may recover possession of any Goods in transit whether or not Delivery has occurred;
the Customer shall not charge or grant an encumbrance over the Goods nor grant nor otherwise give away any interest in the Goods while they remain the property of the Supplier; and
the Supplier may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Customer.

12. Personal Property Securities Act 1999 (“PPSA”)

12.1 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 Goods that have previously been supplied and that will be supplied in the future by the Supplier to the Customer, and the proceeds from such Goods as listed by the Supplier to the Customer in invoices rendered from time to time.

12.2 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 Goods charged thereby;
not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods or the proceeds of such Goods 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 Goods which would result in a change in the nature of proceeds derived from such sales.

12.3 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.

12.4 The Customer waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, and 131 of the PPSA.

12.5 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.

12.6 The Customer shall unconditionally ratify any actions taken by the Supplier under clauses 12.1 to 12.5.

12.7 Subject to any express provisions to the contrary (including those contained in this clause 12), nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.

13. Security and Charge

13.1 In consideration of the Supplier agreeing to supply the Goods, 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, and the Customer grants a security interest in all of its present and after-acquired property, 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 terms of the charge and security interest are the terms of Memorandum 2018/4344 registered pursuant to s.209 of the Land Transfer Act 2017.

13.2 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.

13.3 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 13 including, but not limited to, signing any document on the Customer’s behalf.

14. Defects and Returns

14.1 The Customer shall inspect the Goods 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 Goods within a reasonable time following delivery if the Customer believes the Goods are defective in any way. If the Customer shall fail to comply with these provisions the Goods shall be presumed to be free from any defect or damage. For defective Goods, 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 Goods or repairing the Goods.

14.2 The Supplier may (in its discretion) accept the return of Goods for credit but this may incur a handling fee of thirty percent (30%) of the value of the returned Goods plus any freight.

14.3 Subject to clause 14.1, non-stocklist items or Goods made to the Customer’s specifications are not acceptable for credit or return.

15. Warranty

15.1 For Goods not manufactured by the Supplier, the warranty shall be the current warranty provided by the manufacturer of the Goods. 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 Goods.

16. Consumer Guarantees Act 1993

16.1 If the Customer is acquiring Goods for the purposes of a trade or business, the Customer acknowledges that the provisions of the Consumer Guarantees Act 1993 (“CGA”) do not apply to the supply of Goods by the Supplier to the Customer.

17. Intellectual Property

17.1 Where the Supplier has designed, drawn or developed Goods 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.

17.2 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.

17.3 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 Goods which the Supplier has created for the Customer.

18. Default and Consequences of Default

18.1 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 Supplier’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.

18.2 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).

18.3 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 18 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.

18.4 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.

19. Cancellation

19.1 Without prejudice to any other rights or remedies the Supplier may have, if at any time the Customer 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 Customer of such notice/s) then the Supplier may suspend the Services immediately. 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.

19.2 The Supplier may cancel any Contract to which these terms and conditions apply or cancel delivery of the Services at any time before the Services are commenced by giving written notice to the Customer. On giving such notice the Supplier shall repay to the Customer any sums paid in respect of the Price, less any amounts owing by the Customer to the Supplier for Services already performed. The Supplier shall not be liable for any loss or damage whatsoever arising from such cancellation.

19.3 In the event that the Customer cancels the delivery of Services within thirty-six (36) hours of the Services commencing, then the Supplier reserves the right to charge a fifty percent (50%) cancellation fee. 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).

19.4 Cancellation of orders for Goods 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.

20. Privacy Policy

20.1 All emails, documents, images or other recorded information held or used by the Supplier is “Personal Information” as defined and referred to in clause 20.3 and therefore considered confidential. The Supplier acknowledges its obligation in relation to the handling, use, disclosure and processing of Personal Information pursuant to the Privacy Act 2020 (“the Act”) including Part II of the OECD Guidelines as set out in the Act. The Supplier acknowledges that in the event it becomes aware of any data breaches and/or disclosure of the Customer’s Personal Information, held by the Supplier that may result in serious harm to the Customer, the Supplier will notify the Customer in accordance with the Act. Any release of such Personal Information must be in accordance with the Act and must be approved by the Customer by written consent, unless subject to an operation of law.

20.2 Notwithstanding clause 20.1, privacy limitations will extend to the Supplier in respect of Cookies where the Customer utilises the Supplier’s website to make enquiries. The Supplier 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 Customer’s:

IP address, browser, email client type and other similar details;
tracking website usage and traffic; and
reports are available to the Supplier when the Supplier sends an email to the Customer, so the Supplier may collect and review that information (“collectively Personal Information”)

If the Customer consents to the Supplier’s use of Cookies on the Supplier’s website and later wishes to withdraw that consent, the Customer may manage and control the Supplier’s privacy controls via the Customer’s web browser, including removing Cookies by deleting them from the browser history when exiting the site.

20.3 The Customer authorises the Supplier or the Supplier’s agent to:

access, collect, retain and use any information about the Customer;
(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 Customer’s creditworthiness; or
(ii) 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.

20.4 Where the Customer is an individual the authorities under clause 20.3 are authorities or consents for the purposes of the Privacy Act 2020.

20.5 The Customer shall have the right to request (by e-mail) from the Supplier, a copy of the Personal Information about the Customer retained by the Supplier and the right to request that the Supplier correct any incorrect Personal Information.

20.6 The Supplier will destroy Personal Information upon the Customer’s request (by e-mail) or if it is no longer required unless it is required in order to fulfil the obligations of this Contract or is required to be maintained and/or stored in accordance with the law.

20.7 The Customer can make a privacy complaint by contacting the Supplier via e-mail. The Supplier will respond to that complaint within seven (7) days of receipt and will take all reasonable steps to make a decision as to the complaint within twenty (20) days of receipt of the complaint. In the event that the Customer is not satisfied with the resolution provided, the Customer can make a complaint to the Privacy Commissioner at http://www.privacy.org.nz.

21. Suspension of Services

21.1 Where the Contract is subject to section 24A of the Construction Contracts 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:
(i) the payment is not paid in full by the due date for payment in accordance with clause 8.5 and/or any subsequent amendments or new legislation and no payment schedule has been given by the Customer; or
(ii) 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
(iii) 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
(iv) 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:
(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 Customer or by any person claiming through the Customer; 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.
if the Supplier 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 Supplier under the Contract and Commercial Law Act 2017; or
(ii) 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;
due to any act or omission by the Customer, the Customer effectively precludes the Supplier from continuing the Services or performing or complying with the Supplier’s obligations under this Contract, then without prejudice to the Supplier’s other rights and remedies, the Supplier may suspend the Services immediately after serving on the Customer a written notice specifying the payment default or the act, omission or default upon which the suspension of the Services is based. All costs and expenses incurred by the Supplier as a result of such suspension and recommencement shall be payable by the Customer as if they were a variation.

21.2 If pursuant to any right conferred by this Contract, the Supplier suspends the Services and the default that led to that suspension continues un-remedied subject to clause 19.1 for at least ten (10) working days, the Supplier shall be entitled to terminate the Contract, in accordance with clause 19.

22. Service of Notices

22.1 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.

22.2 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.

23. Trusts

23.1 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:
(i) the removal, replacement or retirement of the Customer 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.

24. General

24.1 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).

24.2 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.

24.3 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 Auckland Courts of New Zealand.

24.4 Subject to the CGA, 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 Goods).

24.5 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.

24.6 The Customer cannot licence or assign without the written approval of the Supplier.

24.7 The Supplier may elect to subcontract out any part of the Services 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.

24.8 The Customer agrees that the Supplier may amend their general terms and conditions for subsequent future Contracts with the Customer by disclosing such to 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 Goods to the Customer.

24.9 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm, national or global pandemics and/or the implementation of regulation, directions, rules or measures being enforced by Governments or embargo, including but not limited to, any Government imposed border lockdowns (including, worldwide destination ports), etc, (“Force Majeure”) or other event beyond the reasonable control of either party. This clause does not apply to a failure by the Customer to make a payment to the Supplier.

24.10 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.

PART II – MAINTENANCE OR PUMP SERVICES

25. Acceptance

25.1 These terms and conditions may be meant to be read in conjunction with the Supplier’s Loan Form, and where the context so permits, the terms ‘Services’ or ‘Goods’ shall include any supply of equipment, as defined therein.

26. Risk

26.1 The Customer warrants that any structures to which the Goods are to be affixed are able to withstand the installation of the Goods and that any plumbing connections (including, but not limited to, meter boxes, pipes, couplings and valves) are of suitable capacity to handle the Goods once installed. If for any reason (including the discovery of asbestos, defective plumbing or dangerous access to crawl spaces) that the Supplier, or employees of the Supplier, reasonably form the opinion that the Customer’s premises is not safe for the installation of Goods to proceed then the Supplier shall be entitled to delay installation of the Goods (in accordance with the provisions of clause 9.2 above) until the Supplier is satisfied that it is safe for the installation to proceed. The Supplier may in agreement with the Customer bring the premises up to a standard suitable for installation to proceed but all such works undertaken and any additional Goods supplied shall be treated as a variation and be charged for in addition to the Price.

27. Customer’s Acknowledgments and Responsibilities

27.1 The Supplier is only responsible for Goods that are replaced by the Supplier, and in the event that other components, subsequently fail, the Customer agrees to indemnify the Supplier against any loss or damage to the Services, or caused by the components, or any part thereof howsoever arising.

27.2 The Customer accepts and acknowledges that:

where the Supplier is requested to use drain/pipe unblocking equipment due to the presence of plant or tree root growth and/or other blockages, and if the Supplier does not recommend the use of such equipment, due to the risk of the equipment becoming lodged or stuck, as the blockages may indicate damaged pipe work, the Supplier will immediately advise the Customer of the same and shall provide the Customer with an estimate for the full repair of the damaged pipe work;
the Supplier may require the Customer or their agent to authorise commencement of the Services in writing. If the drain/pipe unblocking equipment subsequently becomes lodged or stuck, the Customer shall be responsible for the cost of repair, replacement and/or retrieval of said equipment;
the Supplier can offer no guarantee that against reoccurrence or further damage as per clause 27.2(a) or that the high-pressure hose, sani snake, plunger or equipment used will unblock the pipes and/or drain;
where the Customer specifically instructs the Supplier to clear a branch drain or section of drain, warranty will apply to the section of the drain pipe replaced only;
under no circumstances will the Supplier handle removal of asbestos product;
where the Supplier has performed temporary repairs that:
(i) the Supplier offers no guarantee against the reoccurrence of the initial fault, or any further damage caused; and
(ii) the Supplier will immediately advise the Customer of the fault and shall provide the Customer with an estimate for the full repair required.
Goods supplied may:
(i) 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;
(ii) expand, contract or distort as a result of exposure to heat, cold, weather;
(iii) mark or stain if exposed to certain substances;
(iv) be damaged or disfigured by impact or scratching; and
(v) create undesirable smells caused by a system as a result of its normal operation.

27.3 Unless otherwise agreed in writing between the Customer and the Supplier it shall be the Customer’s responsibility to advise the precise location of all underground services on the site and clearly mark the same and if:

the Customer requests the Supplier to engage a service locator then this shall be in addition to the Price and “Dial Before You Dig” must be consulted and any potential underground services marked on the site; and
whilst the Supplier will take all care to avoid damage to any underground 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 and notified as per clause 27.1.

27.4 It is the intention of the Supplier, and agreed by the Customer, that it is the responsibility of the Customer to:

ensure that the Supplier has clear and free access to the site at the agreed date/s and time/s to enable the Supplier to undertake the Services. the Supplier 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 Supplier’s negligence;
provide the Supplier with facilities, as specified by the Supplier, (including, but not limited to, a suitable free power source) for the duration of the Services; and
provide traffic controllers to block off the area surrounding the Services if required and associated council road opening fees.

27.5 Where the Supplier requires that materials, tools etc. required for the Services be stored at the site, the Customer shall supply the Supplier a safe area for storage and shall take all reasonable efforts to protect all items from destruction, theft, or damage. In the event that any of the stored items are destroyed, stolen or damaged, then the cost of repair or replacement shall be the Customer’s responsibility.

28. Specifications

28.1 The Customer acknowledges and accepts that:

all descriptive specifications, illustrations, drawings, data, dimensions, ratings 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; and
while the Supplier may have provided information or figures to the Customer regarding the performance of the Goods, the Customer acknowledges that the Supplier has given these in good faith, and are estimates based on Clean Energy Council (CEC), Water Efficiency Labelling and Standards (WELS) scheme and/or industry prescribed estimates. The water efficiency may be less than estimates due to factors out of the Supplier’s control (including, but not limited to, water pressure, water source, the mineral content of water based on geographical location, etc.).

29. Surplus Goods

29.1 Unless otherwise stated elsewhere in this Contract, Goods which the Supplier brings to the site which are surplus remain the property of the Supplier.

30. Compliance with Laws

30.1 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 Services, including any WorkSafe health and safety laws relating or any other relevant safety standards or legislation pertaining to the Services.

30.2 Both parties acknowledge and agree:

to comply with the Building Act 2004 (including any subsequent Amendments) and Code of Ethics, in respect of all workmanship and building products to be supplied during the course of the Services; and
that Services will be provided in accordance with any current relevant Australian/New Zealand Standards applicable.

30.3 Where the Customer has supplied products for the Supplier to complete the Services, the Customer acknowledges that it accepts responsibility for the suitability of purpose and use for their products and the intended use and any faults inherent in those products. However, if in the Supplier’s opinion, it is believed that the materials supplied are non-conforming products and will not conform with New Zealand regulations, then the Supplier shall be entitled, without prejudice, to halt the Services until the appropriate conforming products are sourced and all costs associated with such a change to the plans and design will be invoiced in accordance with clause 8.2.

30.4 Notwithstanding clause 30.1 and pursuant to the Health & Safety at Work Act 2015 (the “HSW Act”), the Supplier agrees at all times to 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 sub-contractor for the Customer who has engaged a third party head contractor.

30.5 The Customer shall obtain (at the expense of the Customer) all engineering reports, certificates, and all licenses, permits and approvals that may be required for the supply of equipment/Services.

31. Insurance

31.1 The Supplier 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.

PART III – ENVIRONMENTAL SERVICES

32. Acceptance

32.1 If the Supplier has been requested by the Customer to diagnose a fault that requires investigation, disassembly and/or testing, all costs involved will be charged to the Customer irrespective of whether or not the repair goes ahead.

33. Risk

33.1 Where the plumbing or drainage Services specifically referred to in a quotation or on an invoice includes stormwater or sewer drainage cleaning by devices such as a sani snake, CCTV camera or high pressure hoses and/or jetter heads, the Customer acknowledges and accepts that:

they have been informed that the use of the device may damage or destroy the drainage pipes and no warranty will be offered;
where such damage or destruction of the pipes occurs then any repairs or rectification shall be at the Customer’s cost and as such shall indemnify the Supplier against all costs; and
if during the course of drain clearing work, that the Supplier’s equipment is caught, jammed, or broken off in the drain (including, but not limited to existing damaged pipework) that any costs incurred by the Supplier for the recovery of the equipment shall be the Customer’s responsibility.

33.2 The Customer acknowledges and agrees that it shall be the Customer’s responsibility to ensure that the site complies with water authority standards and does not have any issues (including but not limited to, any environmental impacts, mechanical, electrical, plumbing and/or civil issues, etc.) that may impede the methods used by the Supplier to complete the Services.

34. Compliance With Laws

34.1 The Customer acknowledges and accepts that the Supplier will provide the Services in accordance with the contingency/project plan as agreed between both parties and in the event that damages are caused by sewerage spills/contamination which is beyond the Supplier’s control, the Customer shall be liable for any claims, demands, losses, damages, costs and expenses howsoever caused or arising with the clean-up and/or any Environment Protection Authority (EPA) penalties that may be applicable, unless due to the negligence of the Supplier.