1. Application of this Agreement
1.1. These terms (“the Agreement”) are the terms and conditions on which North Canterbury
Drainage Limited (“the Company”) provides goods and services to its customers, and more
particularly, the party named in the Quote (“the Client”).
1.2. This Agreement applies to all goods and services (“the Work”) supplied to the Client by the
Company except as agreed otherwise in writing. Any order for the Work, or acceptance of the
Quote by the Client after the delivery of this Agreement (whether by mail, email or facsimile) to
the Client is deemed to be an acceptance of the terms of this Agreement.
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1.3. The applicable Price, quantity, scope of works, products, site(s) of the Work (“the Site”) and
specifications of the Work (as the case may be) shall be as described in the Quote and shall be
otherwise in accordance with the terms contained in this Agreement.
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1.4. The Client agrees to use best endeavours to facilitate a suitable platform for the Company to
provide the Work AND the Client shall advise the Company in writing of the particulars and
position of any services within the Site, including underground services PROVIDED that should
this not be achieved by the Client and should that impact on the Company in providing the
Work, the Company shall be entitled to increase the Price to compensate the Company for any
additional time, works, costs, claims and expenses incurred by the Company including the
Company’s usual margin above its actual costs and the Client hereby fully indemnifies the
Company in this regard.
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2. Performance
2.1. Performance of this Agreement by the Company is subject to the Company securing all
necessary supplies, licenses, permits and consents to enable the Company to complete the
Works required.
3. Provision of the Works
3.1. Provision of the Works, unless otherwise specified in writing, is to be made at the Site specified
in the Schedule. The Company shall not be liable for any loss, expense, injury, damage or claim
whatsoever or howsoever arising resulting from any delay in provision of the Work if such delay
is caused by factors beyond the reasonable control of the Company.
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4. Price and Quotations
4.1. Quotations are valid for 30 days from the date of quotation unless otherwise stated and
thereafter do not apply unless accepted in writing by the Client within that time.
4.2. Where a deposit is specified, this must be paid prior to the commencement of the Work and the
Company shall not be obliged to start any Works until the requisite deposit is paid.
4.3. All prices exclude Goods and Services Tax, unless otherwise stated.
5. Payment Terms
5.1. The Client agrees to pay the Price for the Works in accordance with the Quote and subject to
these terms.
5.2. For Work extending over more than one month, progress payments will be invoiced at the end
of the month and will be payable by the due date as per this Agreement and as shown on the
invoice unless agreed otherwise in writing.
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5.3. All sums payable by the Client under this Agreement shall be made in full without set-off,
counterclaim or deduction, other than prior approved retentions as per the Construction
Contracts Act 2002.
5.4. If the Company’s invoice is a payment claim under the Construction Contracts Act 2002 then
the dates which the Client must serve a payment schedule on the Company is 7 days after the
payment claim is served.
5.5. If this Agreement is terminated by either party prior to completion of the Works, the Company
will be entitled to issue and be paid for an invoice for the full Price stipulated in the Schedule, or
as otherwise agreed in writing between the parties.
5.6. The Client shall pay interest on any unpaid monies due to the Company at a rate of 15 percent
per annum, accruing monthly from the date that payment is due, until the date of payment.
5.7. During any period of time while the Client is in default on any account with the Company, the
Company may in its sole discretion suspend or withhold provision of the Work.
5.8. If the Client is overdue in paying any invoice in terms of this Agreement for more than 7 days
past the due date, the Company may terminate this Agreement by giving notice to the Client.
5.9. The Client shall be liable to pay all the Company’s expenses and costs (including debt collection
and legal costs on a solicitor/ client basis) in relation to the Company obtaining or attempting to
obtain a remedy for the Client’s failure to pay any sum of money owed to the Company.
5.10. Should there be more than one Client then each are jointly and severally liable under this
Agreement.
5.11. All payments required by the Client shall be made directly in cleared funds to the nominated
bank account of the Company.
6. Retentions and Variations
6.1. Any retentions must be agreed in writing by the parties.
6.2. Any variation to the Work to be provided and the price for same must be agreed in writing with
the Company with the costs of the variation payable by the Client. Variations will be invoiced at
the end of the month and shall be in addition to the price detailed in the Quote.
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7. Autonomy
7.1. Except as otherwise provided in this Agreement the Company will have full control over working
time, methods and decision making in relation to the provision of the Work in accordance with
this Agreement.
8. Health and Safety
8.1. The Client will provide a safe working environment for the Company to undertake the provision
of the Works and for the Company’s officers, sub-contractors and agents.
8.2. The Company will follow the reasonable directions of the Client in relation to its health and
safety process as published to the Company from time to time by the Client PROVIDED that
should these processes impact on the Company providing the Works, the Company shall be
entitled to adjust its Price to compensate the Company for any additional time, works and
expenses incurred by the Company including the Company’s usual margin above its actual
cost.
9. Indemnity
9.1. The Client hereby agrees to indemnify and hold the Company (including its directors, agents
and representatives) harmless from and against any and all third-party claims, actions or
proceedings of any kind and from all related damages, liabilities, costs and expenses
whatsoever (including all the Company’s legal costs) which the Company shall incur arising out
of or in any way connected to the provision of the Work by the Company.
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10. Limitation of Liability
10.1. The Company’s liability for any loss, damage or expense arising out of the Work provided is
limited at the Company’s option, to either:
(a) replacing or repairing any part of the Work which the Client is entitled to reject; or
(b) refunding the price of the Work which the Client is entitled to reject.
10.2. The Company will not be liable in any event if:
(a) The Work has been altered or repaired by any person other than the Company; or
(b) The Work has been subject to excessive wear or tear, or improper or abnormal use or
storage.
10.3. In any event, the Company will not be liable in respect of any claim unless the claim is notified
to the Company within:
(a) 30 days of completion of the Work; or
(b) 7 days of the alleged defect becoming apparent;
whichever is sooner in time.
10.4. For any goods supplied by, but not manufactured or constructed by the Company or part
thereof, the warranties of any manufacturer shall apply and to the full extent permitted in law the
obligations of the Company shall be limited to the warranty of the supplier of such goods. For
the avoidance of doubt, the cost of any labour required to remedy a defect in the type of goods
described in this clause shall be the sole responsibility of the Client.
10.5. Where the Client is not in business or trade, nothing in this clause limits the Client’s rights under
the Consumer Guarantees Act 1992 or the implied warranties for building work in relation to
household units contained in Section 362I of the Building Act 2004 and the application of
sections 362J and 362K apply accordingly in respect of proceedings in relation to such
warranties.
10.6. To the extent that the Client is acquiring or holding itself out as acquiring goods or services
under this Agreement for business purposes, the Consumer Guarantees Act 1993 will not apply.
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11. Return of Property
11.1. Upon the expiry or termination of this Agreement the Client will return to the Company any
property, documentation and records which are the property of the Company.
11.2. If this Agreement is terminated by the Client prior to completion of the Work the Company is
entitled to recover from the site or premises where the Work were carried out any materials or
equipment which is the property of the Company or, by agreement between the parties,
compensation in lieu of recovery AND the Client hereby authorises the Company’s offices to
enter the Site to recover the Company’s property.
12. Risk, Title and Personal Property Securities Act
12.1. Risk in any goods delivered to the client shall pass to the Client upon the delivery of the goods
to the Client (which shall include the leaving or unloading of any goods at the site).
12.2. Ownership in any goods supplied (“the Goods”) shall not pass upon delivery and is expressly
retained by the Company until such time as the Client has discharged all outstanding
indebtedness whatsoever to the Company whether in respect of the Goods supplied or in
respect of any other Work provided by the Company to the Client.
12.3. The Client:
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(a) agrees that the retention of title in this Agreement creates a purchase money security
interest (having the meaning given to that term in the Personal Property Securities Act
1999 “the PPSA”) in all present and after acquired goods and their proceeds, including
any goods into which the Goods supplied are comingled or incorporated, as security for
payment of the purchase price for the Goods until such amount is paid in full; and
(b) grants to the Company (unless otherwise agreed in writing by the parties) a security
interest in all of the Client’s present and after acquired personal property (as defined in
the PPSA) as security for the due payment for the purchase price for the Work and for all
other indebtedness.
12.4. Until ownership of the Goods supplied passes to the Client, the Client must:
(a) hold the Goods and their proceeds on trust for the Company as a bailee;
(b) safely and securely store the Goods in a manner that clearly identifies the Goods as the
Client’s sole property;
(c) not relinquish possession or remove the Goods from the Client’s premises, or use or sell
the Goods other than in the ordinary course of its business, this authority shall be
revoked immediately if the Client defaults on any of its obligations under this Agreement;
(d) insure the Goods against all normal risks (including theft, fire, and natural disasters) for
full replacement value. The Client hereby assigns the proceeds of any insurance claim
for the damage or loss of the Goods to the Company;
(e) disclose to the Client on request all reasonable information about the location and
storage of the Goods, the on-sale of the Works to any customer, and the proceeds of sale
of the Goods;
(f) not allow anything to be done that might adversely affect the Company’s security interest
in the Goods, including anything that might contribute to a deterioration in value of the
Goods; and
(g) advise the Company of any circumstances that may jeopardise or endanger the
Company’s security interest, including advising the Company of any third-party creditor
attempt to exercise remedies against the goods.
12.5. To the extent that Part 9 of the PPSA applies, the Client agrees that the provisions of sections
114(1)(a),133 and 134 of the PPSA will not apply; and where the Company has rights in
addition to those in Part 9 of the PPSA, those rights will continue to apply.
12.6. To the extent that Part 9 of the PPSA applies, without limiting anything in the previous
paragraph, the Client hereby waives its rights under sections 116, 120(2), 121, 125, 126, 127,
129 and 131 of the PPSA.
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13. Termination
13.1. The Company may terminate this Agreement immediately by notice in writing:
(a) In accordance with clause 5.9;
(b) If the Client commits any breach of this Agreement that is incapable of remedy; or
(c) If the Client fails to remedy any other breach of this Agreement that is capable of remedy
within 14 days of notice of that breach.
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14. Governing law
14.1. This Agreement shall be governed by New Zealand law, and the parties submit to the exclusive
jurisdiction of the courts of New Zealand.
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15. Severability
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15.1. If any part of this Agreement is declared by any judicial or other competent authority to be
unenforceable, invalid, or illegal, the remaining terms and conditions shall remain in full force
and effect.
16. Notices
16.1. Notices under this Agreement shall be given in writing which must be delivered by hand, or by
registered mail to the recipient party’s address as provided by addressee or by facsimile to or by
electronic mail at an address provided by the addressee. By providing such an address, the
indicating party agrees that notices can be transmitted to them, (including) electronically as long
as the method of electronic communication creates a record that could be retained, retrieved,
and reviewed by the recipient and could be reproduced in paper form evidencing service of
such notices to the party in question.
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17. Privacy Act
17.1. The Client authorises the Company or the Company’s agent to:
(a) Access, collect, retain and use any information about the Client;
i. For the purpose of assessing the Client’s creditworthiness; or
ii. For the purpose of marketing products and Works to the Client.
(b) Disclose information about the Client, whether collected by the Company from the Client
directly or obtained by the Company 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 Client.
17.2. Where the Client is an individual the authorities under this clause are authorities or consents for
the purposes of the Privacy Act 1993.
17.3. The Client shall have the right to request the Company for a copy of the information about the
Client retained by the Company and the right to request the Company to correct any incorrect
information about the Client held by the Company.
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18. Confidentiality
18.1. The parties acknowledge and agree that all material terms of this Agreement are strictly
confidential to the Company and may only be disclosed by the Client if and as required by law.
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19. Force Majeure
19.1. If any party to this Agreement is prevented from complying with its obligations under this
Agreement by such cases of Force Majeure such as poor or extreme weather, war, serious fire,
flood, cyclone, earthquake, outbreak of disease, riot, strike, natural or man-made disaster or
other circumstance of a similar nature the time for meeting the party’s obligations under this
Agreement shall be suspended by a period equal to the effect of those causes PROVIDED that
the party looking to rely on this provision must use all reasonable endeavours to mitigate or
overcome the effects of such event expeditiously PROVIDED that this provision shall not apply
to any obligation of the Client to pay a sum of money to the Company and does not impact upon
the rights reserved by the Company in terms of this Agreement.
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20. Dispute Resolution
20.1. Where any dispute arises between the parties concerning this Agreement (but not including a
dispute regarding monies owed to the Company by the Client, nor the enforcement of the rights
reserved under this Agreement) or the circumstances, representations, and conduct giving rise
to this Agreement, no party may commence any court proceedings relating to the dispute unless
that party has complied with the procedures set out in this clause.
20.2. The party initiating the dispute (“the first party”) must provide written notice of the dispute to the
other party (“the other party”) and nominate in that notice the first party’s representative for the
negotiations. The other party must, within seven days’ receipt of the notice, give written notice
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to the first party naming its representative for the negotiations. Each representative nominated
shall have authority to settle or resolve the dispute.
20.3. If the parties are unable to resolve the dispute by discussion and negotiation within 14 days of
receipt of the written notice from the first party, then other parties shall be entitled to pursue its
remedies as it sees fit and in terms of the laws of New Zealand.
20.4. Nothing in this Agreement shall prevent any party from applying to the courts for urgent relief in
the nature of an injunction.
20.5. Should any dispute arise of any nature whatsoever, and until such dispute is resolved in its
entirety, all Work and use of the Goods provided by the Company shall cease PROVIDED that
this shall not in any way relieve the Client from continuing to make payments required under this
Agreement and by the due dates stipulated herein.
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21. Acknowledgement
21.1. The Client acknowledges that the Company has supplied (if necessary), and the Client has
received, the prescribed disclosure information and checklist as required by Section 362D of the
Building Act 2004.
22. Entire Agreement
22.1. This Agreement contains the entire agreement and understanding of the parties with respect to
the subject matter hereof. All prior discussions, agreements, proposals, negotiations, and
representations relating to this subject matter are superseded by this Agreement.
22.2. Any amendment, alteration, modification of or addition to this Agreement will not be valid or
binding unless expressed in writing and signed by both parties.