Terms & Conditions of Trade

Waterworks Irrigation Limited – Terms & Conditions of Trade

1. Definitions

1. 1.1  “Contract” means the terms and conditions contained herein, together with any quotation, order, invoice or other document or amendmentsexpressed to be supplemental to this Contract.
2. 1.2  “Supplier” means Waterworks Irrigation Limited, its successors and assigns or any person acting on behalf of and with the authority ofWaterworks Irrigation Limited.
3. 1.3  “Customer” means the person/s, entities or any person acting on behalf of and with the authority of the Customer requesting the Supplier toprovide the Services as specified in any proposal, quotation, order, invoice or other documentation, and: (a) if there is more than one Customer, is a reference to each Customer jointly and severally; and
   (b) if the Customer is a partnership, it shall bind each partner jointly and severally; and
   (c) if the Customer is a part of a Trust, shall be bound in their capacity as a trustee; and

   (d) includes the Customer’s executors, administrators, successors and permitted assigns.

4. 1.4  “Goods” means all Goods or Services supplied by the Supplier to the Customer at the Customer’s request from time to time (where thecontext so permits the terms ‘Goods’ or ‘Services’ shall be interchangeable for the other).
5. 1.5  “Equipment” means all Equipment including any accessories supplied on hire by the Supplier to the Customer (and where the context sopermits shall include any supply of Services). The Equipment shall be as described on the invoices, quotation, authority to hire, or any other

   work authorisation form provided by the Supplier to the Customer.

6. 1.6  “Confidential Information” means information of a confidential nature whether oral, written or in electronic form including, but not limited to,this Contract, either party’s intellectual property, operational information, know-how, trade secrets, financial and commercial affairs, contracts, client information (including but not limited to, “Personal Information” such as: name, address, D.O.B, occupation, driver’s license details, electronic contact (email, Facebook or Twitter details), medical insurance details or next of kin and other contact information (where applicable), previous credit applications, credit history) and pricing details.
7. 1.7  “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.
8. 1.8  “Price” means the Price payable for the Goods/Equipment hire (plus any Goods and Services Tax (“GST”) where applicable) as agreed between the Supplier and the Customer in accordance with clause 5 below.

2. Acceptance

1. 2.1  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/Equipment.
2. 2.2  In the event of any inconsistency between the terms and conditions of this Contract and any other prior document or schedule that the parties have entered into, the terms of this Contract shall prevail.
3. 2.3  Any amendment to the terms and conditions contained in this Contract may only be amended in writing by the consent of both parties.
4. 2.4  The Customer acknowledges that:
   1. (a)  the supply of Goods 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
   2. (b)  in the event that the supply of Goods request exceeds the Customers credit limit and/or the account exceeds the payment terms, the Supplier reserves the right to refuse Delivery; and
   3. (c)  the supply of Goods 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 vary the Price with alternative Goods as per clause 5.2 subject to prior confirmation and agreement of both parties; and
   4. (d)  the Supplier also reserves the right to halt all Services until such time as the Supplier and the Customer agree to such changes. The Supplier shall not be liable to the Customer for any loss or damage the Customer suffers due to the Supplier exercising its rights under this clause.
5. 2.5  Any advice, recommendation, information, assistance or service provided by the Supplier in relation to 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.
6. 2.6  Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 226 of the Contract and Commercial Law Act 2017 or any other applicable provisions of that Act or any Regulations referred to in that Act.

3. Errors and Omissions

1. 3.1  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):(a) resulting from an inadvertent mistake made by the Supplier in the formation and/or administration of this Contract; and/or

   (b) contained in/omitted from any literature (hard copy and/or electronic) supplied by the Supplier in respect of the Services.

2. 3.2  In the event such an error and/or omission occurs in accordance with clause 3.1, and is not attributable to the negligence and/or wilfulmisconduct of the Supplier; the Customer shall not be entitled to treat this Contract as repudiated nor render it invalid.

4. Change in Control

4.1 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, contact

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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

1. 5.1  At the Supplier’s sole discretion the Price shall be either:
   (a) as indicated on any invoice provided by the Supplier to the Customer; or
   (b) the Price as at the date of Delivery of the Goods/Equipment according to the Supplier’s current price list; or
   (c) the Supplier’s quoted price (subject to clause 5.2) which will be valid for the period stated in the quotation or otherwise for a period ofthirty (30) days.
2. 5.2  The Supplier reserves the right to change the Price if a variation to the Supplier’s quotation is requested. Any variation from the plan ofscheduled Services or specifications (including, but not limited to, any variation as a result of additional works required due to unforeseen circumstances such as poor weather conditions, limitations to accessing the site, availability of machinery, safety considerations, or as a result of any increase to the Supplier’s in the cost of materials and labour) will be charged for on the basis of the Supplier’s quotation and will be shown as variations on the invoice. Payment for all variations must be made in full at their time of completion.
3. 5.3  At the Supplier’s sole discretion a non-refundable deposit may be required.
4. 5.4  Time for payment for the Goods/Equipment being of the essence, the Price will be payable by the Customer on the date/s determined by theSupplier, which may be:
   (a) on Delivery of the Goods/Equipment;
   2. (b)  before Delivery of the Goods/Equipment;
   3. (c)  by way of instalments/progress payments in accordance with the Supplier’s payment schedule;
   4. (d)  for certain approved Customer’s, due twenty (20) days following the end of the month in which a statement is posted to the Customer’saddress or address for notices;
   5. (e)  the date specified on any invoice or other form as being the date for payment; or
   6. (f)  failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Customer by theSupplier.
5. 5.5  The Supplier may in its discretion allocate any payment received from the Customer towards any invoice that the Supplier determines andmay 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/Equipment.
6. 5.6  Payment may be made by cash, 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.
7. 5.7  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 5.7 prevents the Customer from the ability to dispute any invoice.
8. 5.8  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 agreement 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.

6. Provision of the Services

1. 6.1  Subject to clause 6.2 it is the Supplier’s responsibility to ensure that the Services start as soon as it is reasonably possible.
2. 6.2  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’scontrol, including but not limited to any failure by the Customer to: (a) make a selection; or
   (b) have the site ready for the Services; or
   (c) notify the Supplier that the site is ready.
3. 6.3  Delivery (“Delivery”) of the Goods/Equipment is taken to occur at the time that:
   (a) the Customer or the Customer’s nominated carrier takes possession of the Goods/Equipment at the Supplier’s address; or
   (b) the Supplier (or the Supplier’s nominated carrier) delivers the Goods/Equipment to the Customer’s nominated address even if theCustomer is not present at the address.
4. 6.4  At the Supplier’s sole discretion the cost of Delivery is either included in the Price or is in addition to the Price.
5. 6.5  The Supplier may deliver the Goods/Equipment in separate instalments. Each separate instalment shall be invoiced and paid in accordancewith the provisions in these terms and conditions.
6. 6.6  Any time specified by the Supplier for Delivery of the Goods/Equipment is an estimate only and the Supplier will not be liable for any loss ordamage 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/Equipment 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/Equipment 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.

7. Product Specifications

7.1 The Customer acknowledges that:

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1. (a)  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;
2. (b)  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 industry prescribed estimates.

7.2 The Customer shall be responsible for ensuring that the Goods ordered are suitable for their intended use.

8. Risk

1. 8.1  Risk of damage to or loss of the Goods passes to the Customer on Delivery and the Customer must insure the Goods on or before Delivery.
2. 8.2  If any of the Goods 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 Goods. The production of these terms and conditions by the Supplier is sufficient evidence ofthe Supplier’s rights to receive the insurance proceeds without the need for any person dealing with the Supplier to make further enquiries.
3. 8.3  If the Customer requests the Supplier to leave Goods outside the Supplier’s premises for collection or to deliver the Goods to an unattendedlocation then such Goods shall be left at the Customer’s sole risk.
4. 8.4  The Customer warrants that any structures to which the Goods are to be affixed are able to withstand the installation thereof and are ofsuitable capacity to handle the Goods once installed. If for any reason (including the discovery of asbestos, defective or unsafe structures or risk), the Supplier, or the Supplier’s employees, reasonably form the opinion that the Customer’s premises is not safe for the Services to proceed then the Supplier shall be entitled to delay the provision of the Services (in accordance with clause 6.2) until the Supplier is satisfied that it is safe for the installation to proceed.
5. 8.5  The Customer acknowledges that the Supplier is only responsible for parts that are replaced by the Supplier and does not at any stage accept any liability in respect of previous services and/or goods supplied by any other third party that subsequently fail and found to be the source of the failure, the Customer agrees to indemnify the Supplier against any loss or damage to the Goods, or caused by the Goods, or any part thereof howsoever arising.
6. 8.6  The Customer acknowledges and accepts that the Supplier shall not be held liable for any losses or damages arising from delays in the availability of parts that are beyond the Supplier’s control.
7. 8.7  The Customer acknowledges that Goods supplied may:
   (a) exhibit variations in shade tone, colour, texture, markings, veining, occlusions, size, grade, surface and finish; (b) fade or change colour over time; and
   (c) expand, contract or distort as a result of exposure to heat, cold, weather; and
   (d) mark or stain if exposed to certain substances; and
   (e) be damaged or disfigured by impact or scratching.

9. Access

9.1 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 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 negligence of the Supplier.

10. Accuracy of Plans

1. 10.1  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 of this information provided by the Customer is inaccurate, the Supplier accepts no responsibility for any loss, damages, or costs however resulting from these inaccurate plans, specifications or other information.
2. 10.2  Where the Customer is to supply the Supplier with any design specifications (including, but not limited to CAD drawings) the Customer shall be responsible for providing accurate data. The Supplier shall not be liable whatsoever for any errors in the Services that are caused by incorrect or inaccurate data being supplied by the Customer.
3. 10.3  In the event the Customer gives information relating to measurements and quantities of Goods required in completing the Services, it is the Customer’s responsibility to verify the accuracy of the measurements and quantities, before the Customer or the Supplier places an order based on these measurements and quantities. The Supplier accepts no responsibility for any loss, damages, or costs however resulting from the Customer’s failure to comply with this clause.

11. Underground Locations

1. 11.1  Prior to the Supplier commencing any work the Customer must advise the Supplier of the precise location of all underground services on the site and clearly mark the same. The underground 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.
2. 11.2  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 as per clause 11.1.

12. Compliance With Laws

1. 12.1  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.
2. 12.2  The Customer shall obtain (at the expense of the Customer) all licenses and approvals that may be required for the Services.
3. 12.3  Notwithstanding clause 12.1 and pursuant to the Health & Safety at Work Act 2015 (the “HSW Act”) the Supplier agrees at all times tocomply with sections 28 and 34 of the “HSW Act” with meeting their obligations for health and safety. Page 3 of 8

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13. Title to Goods

1. 13.1  The Supplier and the Customer agree that ownership of the Goods shall not pass until: (a) the Customer has paid the Supplier all amounts owing to the Supplier; and
   (b) the Customer has met all of its other obligations to the Supplier.
2. 13.2  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.
3. 13.3  It is further agreed that:
   1. (a)  until ownership of the Goods passes to the Customer in accordance with clause 13.1 that the Customer is only a bailee of the Goodsand must return the Goods to the Supplier on request;
   2. (b)  the Customer holds the benefit of the Customer’s insurance of the Goods on trust for the Supplier and must pay to the Supplier theproceeds of any insurance in the event of the Goods being lost, damaged or destroyed;
   3. (c)  the Customer must not sell, dispose, or otherwise part with possession of the Goods other than in the ordinary course of business andfor 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;

   4. (d)  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 Supplieras it so directs;
   5. (e)  the Customer irrevocably authorises the Supplier to enter any premises where the Supplier believes the Goods are kept and recoverpossession of the Goods;
   6. (f)  the Supplier may recover possession of any Goods in transit whether or not Delivery has occurred;
   7. (g)  the Customer shall not charge or grant an encumbrance over the Goods nor grant nor otherwise give away any interest in the Goodswhile they remain the property of the Supplier; and
   8. (h)  the Supplier may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has notpassed to the Customer.

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

1. 14.1  Upon assenting to these terms and conditions in writing the Customer acknowledges and agrees that:
   1. (a)  these terms and conditions constitute a security agreement for the purposes of the PPSA; and
   2. (b)  a security interest is taken in all Goods/Equipment and/or collateral (account) – being a monetary obligation of the Customer to theSupplier for Services – that have previously been supplied and that will be supplied in the future by the Supplier to the Customer.
2. 14.2  The Customer undertakes to:(a) sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which the Supplier may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register;
   2. (b)  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/Equipment charged thereby;
   3. (c)  not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods/Equipment and/or collateral (account) in favour of a third party without the prior written consent of the Supplier; and
   4. (d)  immediately advise the Supplier of any material change in its business practices of selling Goods which would result in a change in the nature of proceeds derived from such sales.
3. 14.3  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.
4. 14.4  The Customer waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, and 131 of the PPSA.
5. 14.5  Unless otherwise agreed to in writing by the Supplier, the Customer waives its right to receive a verification statement in accordance withsection 148 of the PPSA.
6. 14.6  The Customer shall unconditionally ratify any actions taken by the Supplier under clauses 14.1 to 14.5.
7. 14.7  Subject to any express provisions to the contrary (including those contained in this clause 14), nothing in these terms and conditions isintended to have the effect of contracting out of any of the provisions of the PPSA.
8. 14.8  Only to the extent that the hire of the Equipment exceeds a six (6) month hire period with the right of renewal shall clause 14 apply as asecurity agreement in the form of a PPS Lease in respect of Section 36 of the PPSA, in all other matters this clause 14 will apply generally for the purposes of the PPSA.

15. Security and Charge

1. 15.1  In consideration of the Supplier agreeing to supply the Goods/Equipment, 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).
2. 15.2  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.
3. 15.3  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 15 including, but not limited to, signing any document on the Customer’s behalf.

16. Defects

16.1 The Customer shall inspect the Goods/Equipment 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/Equipment 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/Equipment shall be presumed to be free from

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any defect or damage. For defective Goods/Equipment, 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/Equipment or repairing the Goods/Equipment.
16.2 Goods/Equipment will not be accepted for return for any reason other than those specified in clause 16.1 above (or in the case of Equipment

hire, normal termination of Equipment hire in accordance with the full terms and conditions herein).

17. Return of Goods

1. 17.1  Returns of Goods will only be accepted provided that:
   (a) the Customer has complied with the provisions of clause 16.1; and
   2. (b)  the Supplier has agreed in writing to accept the return of the Goods; and
   3. (c)  the Goods are returned at the Customer’s cost within seven (7) days of the Delivery date; and
   4. (d)  the Supplier will not be liable for Goods which have not been stored or used in a proper manner; and
   5. (e)  the Goods are returned in the condition in which they were delivered and with all packaging material, brochures and instruction materialin as new condition as is reasonably possible in the circumstances.
2. 17.2  The Supplier will not accept the return of Goods for credit.

18. Warranty

1. 18.1  Subject to the conditions of warranty set out in Clause 18.2 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.
2. 18.2  The conditions applicable to the warranty given by Clause 18.1 are:
   1. (a)  the warranty shall not cover any defect or damage which may be caused or partly caused by or arise through:
      1. (i)  failure on the part of the Customer to properly maintain any Goods; or
      2. (ii)  failure on the part of the Customer to follow any instructions or guidelines provided by the Supplier; or
      3. (iii)  any use of any Goods otherwise than for any application specified on a quote or order form; or
      4. (iv)  the continued use of any Goods after any defect becomes apparent or would have become apparent to a reasonably prudentoperator or user; or
      5. (v)  fair wear and tear, any accident or act of God.
   2. (b)  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.
   3. (c)  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.
3. 18.3  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.

19. Consumer Guarantees Act 1993

19.1 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.

20. Intellectual Property

1. 20.1  Where the Supplier has designed, drawn or developed Goods/Equipment 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.
2. 20.2  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.
3. 20.3  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.

21. Default and Consequences of Default

1. 21.1  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.
2. 21.2  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).
3. 21.3  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 21, 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.
4. 21.4  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:
   (a) any money payable to the Supplier becomes overdue, or in the Supplier’s opinion the Customer will be unable to make a payment whenit falls due;
   (b) the Customer has exceeded any applicable credit limit provided by the Supplier;

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(c) 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

(d) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer.

22. Cancellation

1. 22.1  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 Goods/Equipment 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.
2. 22.2  The Supplier may cancel any contract to which these terms and conditions apply or cancel Delivery of Goods/Equipment at any time before the Goods/Equipment are due to be 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 Goods/Equipment. The Supplier shall not be liable for any loss or damage whatsoever arising from such cancellation.
3. 22.3  In the event that the Customer cancels Delivery of the Goods/Equipment 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).
4. 22.4  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.

23. Privacy Policy

1. 23.1  All emails, documents, images or other recorded information held or used by the Supplier is Personal Information as defined and referred to in clause 23.3 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 and as set out in Schedule 8 of the Act and any statutory requirements where relevant in a European Economic Area “EEA” under the EU Data Privacy Laws (including the General Data Protection Regulation “GDPR”) (collectively, “EU Data Privacy Laws”). 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 and/or the GDPR. Any release of such Personal Information must be in accordance with the Act and the GDPR (where relevant) and must be approved by the Customer by written consent, unless subject to an operation of law.
2. 23.2  Notwithstanding clause 23.1, 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:
   (a) IP address, browser, email client type and other similar details;(b) tracking website usage and traffic; and
   (c) 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.

3. 23.3  The Customer authorises the Supplier or the Supplier’s agent to:

(a) 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.
(b) 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.

4. 23.4  Where the Customer is an individual the authorities under clause 23.3 are authorities or consents for the purposes of the Privacy Act 2020.
5. 23.5  The Customer shall have the right to request (by e-mail) from the Supplier, a copy of the Personal Information about the Customer retainedby the Supplier and the right to request that the Supplier correct any incorrect Personal Information.
6. 23.6  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 inorder to fulfil the obligations of this Contract or is required to be maintained and/or stored in accordance with the law.
7. 23.7  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 InformationCommissioner at http://www.privacy.org.nz/comply/comptop.html.

24. Equipment Hire

1. 24.1  Equipment shall at all times remain the property of the Supplier and is returnable on demand by the Supplier. In the event that Equipment is not returned to the Supplier in the condition in which it was delivered the Supplier retains the right to charge the Customer the full cost of repairing the Equipment. In the event that Equipment is not returned at all the Supplier shall have right to charge the Customer the full cost of replacing the Equipment.
2. 24.2  The Customer shall:
   (a) keep the Equipment in their own possession and control and shall not assign the benefit of the Equipment nor be entitled to a lien over

the Equipment;

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2. (b)  not alter or make any additions to the Equipment including but without limitation altering, make any additions to, defacing or erasing any identifying mark, plate or number on or in the Equipment or in any other manner interfere with the Equipment;
3. (c)  keep the Equipment, complete with all parts and accessories, clean and in good order as delivered, and shall comply with any maintenance schedule as advised by the Supplier to the Customer.

3. 24.3  The Customer accepts full responsibility for the safekeeping of the Equipment and the Customer agrees to insure, or self insure, the Supplier’s interest in the Equipment and agrees to indemnify the Supplier against physical loss or damage including, but not limited to, the perils of accident, fire, theft and burglary and all other usual risks and will effect adequate Public Liability Insurance covering any loss, damage or injury to property or persons arising out of the use of the Equipment. Further the Customer will not use the Equipment nor permit it to be used in such a manner as would permit an insurer to decline any claim.
4. 24.4  Notwithstanding the above clause, immediately on request by the Supplier the Customer will pay:
   1. (a)  any lost hire charges the Supplier would have otherwise been entitled to for the Equipment, under this, or any other hire agreement;
   2. (b)  any insurance excess payable in relation to a claim made by either the Customer or the Supplier in relation to any damage caused by, orto, the hire Equipment whilst the same is hired by the Customer and irrespective of whether charged by the Customer’s insurers or the

      Supplier’s.

5. 24.5  Return of the Equipment (“Return”) will be completed when the:(a) Equipment is returned by the Customer to the Supplier’s place of business; or
   (b) Supplier takes back possession of the Equipment once collection by the Supplier is affected.

25. Service of Notices

1. 25.1  Any written notice given under this Contract shall be deemed to have been given and received:
   1. (a)  by handing the notice to the other party, in person;
   2. (b)  by leaving it at the address of the other party as stated in this Contract;
   3. (c)  by sending it by registered post to the address of the other party as stated in this Contract;
   4. (d)  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 thetransmission;
   5. (e)  if sent by email to the other party’s last known email address.
2. 25.2  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.

26. Trusts

26.1 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:

1. (a)  the Contract extends to all rights of indemnity which the Customer now or subsequently may have against the Trust and the trust fund;
2. (b)  the Customer has full and complete power and authority under the Trust to enter into the Contract and the provisions of the Trust do notpurport 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;

3. (c)  the Customer will not without consent in writing of the Supplier (the Supplier will not unreasonably withhold consent), cause, permit, orsuffer 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.

27. Suspension of Services

27.1 Where the Contract is subject to section 24A of the Construction Contracts Act 2002, the Customer hereby expressly acknowledges that:

1. (a)  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 servedon the Customer, and:
   1. (i)  the payment is not paid in full by the due date for payment in accordance with clause 5 and/or any subsequent amendments or newlegislation and no payment schedule has been given by the Customer; or
   2. (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 thedue date for its payment; or
   3. (iii)  the Customer has not complied with an adjudicator’s notice that the Customer must pay an amount to the Supplier by a particulardate; and
   4. (iv)  the Supplier has given written notice to the Customer of its intention to suspend the carrying out of construction work under theconstruction Contract.
2. (b)  if the Supplier suspends work, it:
   1. (i)  is not in breach of Contract; and
   2. (ii)  is not liable for any loss or damage whatsoever suffered, or alleged to be suffered, by the Customer or by any person claimingthrough the Customer; and
   3. (iii)  is entitled to an extension of time to complete the Contract; and
   4. (iv)  keeps its rights under the Contract including the right to terminate the Contract; and may at any time lift the suspension, even if theamount has not been paid or an adjudicator’s determination has not been complied with.
3. (c)  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

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(d) 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.

27.2 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 22.1 for at least ten (10) working days, the Supplier shall be entitled to terminate the Contract, in accordance with clause 22.

28. General

1. 28.1  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.
2. 28.2  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, New Zealand.
3. 28.3  Except to the extent permitted by law “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/Equipment hire).
4. 28.4  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.
5. 28.5  The Customer cannot licence or assign without the written approval of the Supplier.
6. 28.6  The Supplier may elect to subcontract out any part of the Services but shall not be relieved from any liability or obligation under this Contractby 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.

7. 28.7  The Customer agrees that the Supplier may amend their general terms and conditions for subsequent future contracts with the Customer bydisclosing 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/Equipment to the Customer.

8. 28.8  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”) orother event beyond the reasonable control of either party.
9. 28.9  Both parties warrant that they have the power to enter into this Contract and have obtained all necessary authorisations to allow them to doso, they are not insolvent and that this Contract creates binding and valid legal obligations on them.

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