Terms of service

SOUTH CANTERBURY HYDRAULICS LIMITED 

TERMS OF TRADE FOR SUPPLY OF GOODS & SERVICES 

In these Terms of Trade we have used "we", "us", and "our" to refer to South Canterbury Hydraulics Limited. By ordering Work and/or  Goods from us, you agree to these Terms of Trade to the exclusion of your terms (if any). 

1. PRICE 

1.1 At our sole discretion the Price shall be either:  

(a)As indicated on invoices provided by us to you in respect of  Work supplied; or 

(b)A quoted price (subject to clause 2). 

1.2 The quoted price is open for acceptance for 30 days from the  date of the quotation unless withdrawn by us prior to  acceptance. 

1.3 Your acceptance should be confirmed in writing prior to supply,  but in the absence of written acceptance, our commencement  of the Work will be taken as your acceptance by conduct. 1.4 All prices given are on a plus GST basis. 

1.5 In the event our contract with you is terminated in accordance  with clause 6.1 prior to completion of the Work, you must  immediately pay us the Actual Cost at the termination date. 

1.6 The “Actual Cost” will be calculated by totalling the following:  (a) the number of hours of service multiplied by the normal  hourly charge out rates for the workers involved on the date  which the Work is undertaken or if the supply occurs over  more than one day, the relevant hourly charge out rates on  the last day on which services are rendered; and 

(b) any disbursements (including without limitation delivery  costs) incurred by us on your behalf. 

1.7 All Work that we do for you is subject to these Terms of Trade. 2. VARIATIONS 

2.1 Any changes required to the Work quoted, or to the Work  reasonably foreseeable by us at the date of the quotation, shall  be a variation. Variations include, without limitation, any  change to the scope, quality or timing of the work, any  circumstance that changes the cost of performing the Work  from that reasonably foreseeable at the time of the quotation, a  request for an alternative material, limitations to accessing the  site, obscured building defects, safety considerations,  prerequisite work by any third party not being completed or of  the required quality, or any other circumstance which is stated  in these terms and conditions to be a variation, whether arising  out of any oral or written instruction from you, your  

representative or otherwise. 

2.2 We will advise you as soon as practicable of any change to our  contract price arising out of any variation. Variations will  generally be valued on the same basis or rates as  

corresponding original Work. Where Work does not directly  correspond to the quotation, or cannot be performed in the  most economic manner, variations may at our sole discretion  be priced on the basis of time and materials (charge-up) at our  normal charge out rates current at the time of performing the  Work. 

2.3 Your acceptance of any variation should be confirmed in  writing prior to commencement of Work, but in the absence of  written acceptance our commencement of the work pertaining  to the variation will be taken as your acceptance by conduct. 

2.4 We shall be entitled to be paid progressively as specified by us  for the reasonable value of any variation whether or not the  value of it has been agreed. 

3. TERMS OF PAYMENT 

3.1 We may require you to pay a deposit, being an advanced  payment for the Work, before we commence the Work.  3.2 Payment for the Work (and any associated expenses and  disbursements) is due on the 20th day of the month following  the date of our invoice except where we have agreed in writing  that other terms shall apply ("the Due Date"). 

3.3 If you do not make payment on the Due Date, you are in  default and must pay default interest at the rate of 2% per month, which shall accrue on a daily basis on the total amount  outstanding from the Due Date to the date of payment in full. 

3.4 Notwithstanding clause 3.3, if payment is outstanding for 7  days from the Due Date, we may suspend performing the Work  until payment of all outstanding moneys is received in full  (subject always to clause 3.5). You must pay in cleared funds  for any Work done by us until payment is made in full (together  with any accrued interest). 

3.5 We may notify you at any time that we have ceased to carry  out the Work in advance. This cessation does not relieve you  for amounts owing up to the date on which the contract is  terminated. 

3.6 Payment of all money shall be without set-off or deduction of  any kind. 

3.7 We will apportion payments to outstanding accounts as we  think fit. 

4. PERFORMANCE OF WORK 

4.1 We will: 

(a) perform the Work with reasonable skill, care and diligence  in a professional manner; 

(b) endeavour to ensure that the Work is performed in  accordance with any time frames agreed in writing with you  (also note clause 4.2); 

(c) liaise with you during the course of performing the Work in  accordance with your reasonable requirements. 

4.2 Any time specified by us for provision of the Work is an  estimate only and we will not be liable for any loss or damage  incurred by you as a result of any delay. However both parties  agree that they shall make every endeavour to enable the  Work to be provided at the time and place as was arranged  between both parties. In the event that we are unable to  provide the Work as agreed solely due to any action or inaction  by you then we shall be entitled to charge a reasonable fee for  postponing the Work and providing the Work at a later time  and date. 

4.3 You will give reasonable assistance to enable us to perform  the Work by: 

(a) giving clear instructions; 

(b) promptly providing any information or content required from  you for us to complete the Work; 

(c) ensuring that the Work and products derived from the Work  are fit for the purpose you intend to use them for and meet  any appropriate statutory, regulatory, governmental and  industry and environmental controls, standards or practices. 5. LIMITATION OF LIABILITY 

5.1 The Consumer Guarantees Act 1993, the Fair Trading Act  1986, and other statutes may impose warranties, conditions or  obligations upon us which cannot by law (or which can only to  a limited extent by law) be excluded. We exclude all such  imposed warranties, conditions or obligations to the extent  permitted by law and exclude any warranty, condition or  obligation imposed or implied under common law, equity or  otherwise. 

5.2 For the purposes of the Fair trading Act 1986 the parties agree  to contract out of sections 9 (misleading and deceptive conduct  generally), 12A (unsubstantiated representations), and 13  (false or misleading representations). You agree that all  warranties, conditions, and other terms implied by sections 9,  12A and 13 of the Fair Trading Act 1986 are excluded to the  fullest extent permitted by law and the parties further  acknowledge and agree that it is fair and reasonable that the  parties are bound by this clause. 

5.3 The guarantees contained in the Consumer Guarantees Act  1993 are excluded where you acquire Work from us for the  purposes of a business in terms of sections 2 and 43 of that  Act and you confirm that you are obtaining the Work for such  business purpose.  

5.4 Except to the extent that the law prevents us from excluding  liability and as expressly provided for in clause 5.6, we shall  not be liable for any loss or damage or liability of any kind  whatsoever (including consequential loss or lost profit or 

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business) whether suffered or incurred by you or another  person and whether in contract, or tort (including in  negligence), or otherwise and whether such loss or damage  arises directly or indirectly from Work provided by us to you.  

5.5 You shall indemnify us and our directors and employees  against all claims and loss of any kind whatsoever however  caused or arising which is brought by any person in connection  with any matter, act, omission, or error by us, our agents or  employees in connection with the Work.  

5.6 To the extent that we are liable for any reason for any loss  suffered or liability incurred by you arising from any breach of  these Terms of Trade or for any other reason, such liability is  limited to the amount of the Actual Cost of the Work paid to us  by you for the Work. 

5.7 This clause shall continue in force notwithstanding the  termination of these Terms of Trade or the completion of the  Work. 

6. DEFAULT 

6.1 Any security interests created by these Terms of Trade  become enforceable if any of the following events occur: (a)you fail to pay any money owing on the Due Date; (b)you sell, part with possession or dispose of any Goods or do  

anything inconsistent with our ownership of the Goods prior  to making payment in full to us; 

(c)we believe you have committed or will commit an act of  bankruptcy, have had or are about to have a receiver or  liquidator appointed, or are declared insolvent; 

(d)the Goods are at risk, as that term is defined in the PPSA; (e)you neglect or fail to carry on your business to our  reasonable satisfaction, or if there is a significant  

deterioration in your trading or asset position; 

(f) you are otherwise in breach of your obligations under these  Terms of Trade. 

6.2 If any of the events described in clause 6.1 occur, in addition to  any remedies we may have at law, we may do one or more of  the following: 

(a)suspend the Work in accordance with clause 3.4; (b)charge default interest in accordance with clause 3.3;  (c)enter on to your premises and repossess any Goods which  have not been paid for in full;  

(d)immediately terminate our contract with you by notice in  writing to you. 

7. COSTS 

7.1 You must pay our costs (including legal costs, as between  solicitor and client) of and incidental to the enforcement or  attempted enforcement of our rights, remedies and powers  under these Terms of Trade. 

8. PRIVACY OF INFORMATION 

8.1 You authorise us: 

(a)to collect, retain and use information about you from any  person for the purpose of assessing your creditworthiness; (b)to disclose information about you: 

(i) to any person who guarantees, or who provides  

insurance, or who provides any other credit support, in  relation to your obligations to us; 

(ii) to such persons as may be necessary or desirable to  enable us to exercise any power or enforce or attempt to  enforce any of our rights, remedies and powers under  these Terms of Trade. 

9. ASSIGNMENT 

9.1 You must not subcontract or assign any of your rights, powers  or obligations under these Terms of Trade. 

10. NOTICES 

10.1Any notice may be given by phone, in person, posted, or sent  by fax or email to you (or where you are a company, to any of  your directors). 

11. DISPUTES 

11.1If either party has any dispute with the other under these  Terms of Trade: 

(a)that party will promptly give full written particulars of the  dispute to the other; and 

(b)the parties will promptly meet together and in good faith try  to resolve the dispute. 

11.2If the dispute is not resolved within 7 days of the written  particulars being given (or any longer period as agreed  

between the parties) the dispute will be referred to mediation  (unless the parties otherwise agree to adjudication in  accordance with their rights under the Construction Contracts  Act 2002) by either party giving written notice of such referral  to mediation to the other. 

11.3Until mediation ceases neither party may commence legal  proceedings. 

11.4The mediation procedure is: 

(a)The party who wishes to resolve a dispute must give a  notice of the dispute to the other party. 

(b)The notice must state that the dispute has arisen, and state  the matters in dispute. 

(c)When the notice has been given the parties will appoint a  mediator. If they fail to appoint a mediator within 14 days,  on request by either party, the mediator will be appointed by  the President of the New Zealand Law Society or the  president’s nominee. 

(d)The parties must co-operate with the mediator in an effort to  resolve the dispute. 

(e)If the dispute is settled, the parties must sign a copy of the  terms of the settlement. 

(f) If the dispute is not settled within 14 days after the mediator  has been appointed, or within any extended period as  agreed to in writing between the parties, the mediation must  cease. 

(g)the parties will promptly meet together and in good faith try  to resolve the dispute. 

(h)The mediator may engage an appropriately qualified expert  to give an opinion on technical matters. The cost will be a  mediators cost. 

12. FORCE MAJEURE 

12.1If we have given you a time frame for completion of the Work,  unless agreed in writing to the contrary such time frame is  approximate only and is not deemed to be of the essence of  the contract. 

12.2We shall not be liable for delay or failure to perform the Work if  the cause of delay or failure is beyond our control. 

13. RISK OF GOODS 

13.1The risk in Goods supplied passes to you on delivery. 14. DELIVERY 

14.1Delivery occurs at the time possession of the Goods passes to  you (or a person nominated by you) from us. 

14.2Any date or time expressed for delivery is given as an estimate  only and we shall not be liable whatsoever for delays in  delivery for any reason. 

15. TIME COMPLETION 

15.1We will endeavour to complete the Work within a reasonable  time and will endeavour to meet any target date you make  known to us. Should it be necessary to work outside ordinary  working hours to meet your completion target or due to any  other circumstances outside our control, you shall be liable for  any extra cost incurred. 

16. ACCESS 

16.1You shall ensure that we have clear and free access to the  worksite at all times to enable us to undertake the Work. We  shall not be liable for any loss or damage to the site (including,  without limitation, damage to pathways, driveways and  concreted, paved or grassed areas) unless it is directly caused  by our negligence. 

17. VARIATIONS IN MATERIALS 

17.1You acknowledge that materials provided may exhibit  variations in shade, colour, texture, surface and finish, and  may fade or change colour over time. We 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. 

18. OWNERSHIP / RECOVERY OF JOB 

18.1Goods which form part of the Work, and any accounts  receivable arising from the partial or completed Work, remain  our sole and absolute property as legal and equitable owner  until we have received payment in full of all monies (whether  for the Work or otherwise) owed by you to us. Any form of  payment made by you to us other than cash shall not be  deemed to be payment until that form of payment has been  cleared.

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18.2If you are in default, we may (without prejudice to any other  rights or remedies) enter any premises occupied by you or  Work site to recover Goods that form part of the Work. If the  premises are those of a third party, we may enter and recover  goods for the Work as your agent, and you irrevocably appoint  us for this purpose. 

18.3We may sell any recoverable portion of the Work and apply the  proceeds towards the amount you owe us. 

19. PERSONAL PROPERTY SECURITIES ACT 1999 ("PPSA") 19.1All terms in this clause 19 have the meaning given in the PPSA  and section references shall be to sections of the PPSA. 19.2Clause 18 creates a security interest in Goods we supply to  you as part of the Work. 

19.3You shall not grant any other security interest or any lien over  Goods that we have a security interest in.  

19.4At our request you shall promptly sign any documents and do  anything else required by us to ensure that our security interest  constitutes a first ranking perfected security interest in the  Goods.  

19.5If Goods that we have a security interest in are processed,  included or dealt with in any way causing them to become  accessions, processed or commingled goods, our security  interest will continue in the whole in which they are included.  

You shall not grant any other security interest or any lien in  either the Goods or in the whole.  

19.6You waive any rights you may have under sections 114(1)(a),  116, 120(2), 121, 125, 126, 127, 129, 131, 133, and 134 of the  PPSA.  

19.7You waive your right to receive a copy of any verification  statement (as that term is defined in the PPSA). 

19.8You will give us prior written notice of a proposed change of  your name or address. 

20. DEFECTS, ERRORS AND OMISSIONS 

20.1You shall inspect the Work on completion and shall within  twenty-one (21) days of such time (being of the essence) notify  us of any alleged defect, error or omission, shortage in  quantity, damage or failure to comply with the description or  quote. You shall afford us an opportunity to inspect the Work  within a reasonable time following such notification if you  believe the Work is defective in any way. If you shall fail to  comply with these provisions the Work shall be presumed to be  free from any defect or damage. For defective Work, which we  have agreed in writing that you are entitled to reject, our liability  is limited to either (at our absolute discretion) rectifying the  Work, replacing the Goods or reimbursing you the Actual Cost  paid by you. 

21. INTELLECTUAL PROPERTY 

21.1In respect of Intellectual Property used in or arising from the  production of the Goods or the performance of the Work: (a)all pre-existing Intellectual Property the subject of an  

Intellectual Property right resides with the owner as at the  date of these Terms of Trade (whether you or us); 

(b)any new Intellectual Property will be dealt with in  accordance with clause 22. 

21.2If any Work is to be undertaken based on your designs, you  warrant that the undertaking of the Work by us will not infringe  any third party's Intellectual Property rights and you indemnify  us against any loss, liability, costs and expenses in the event  of any claim being made that the Work infringes any patent,  copyright or other rights of any other person. 

22. INTELLECTUAL PROPERTY OWNERSHIP 

22.1Subject to clauses 21.1(a) and 22.4 we are and will remain the  exclusive owner everywhere in the world of all Intellectual  Property rights and interests (including copyright and all other  statutory and common law rights and interests) in the Work,  and any other work performed by us for you, as first owner of  those Intellectual Property rights and interests. 

22.2We shall retain exclusive worldwide ownership at all times of  our artistic styles, methods of working, techniques, ideas, skills  and know-how. 

22.3You must not attribute the Work to anyone other than us or  remove any of our trade marks, signatures, logos or similar  from our Work.  

22.4Upon payment of all amounts owing to us in accordance with  these Terms of Trade, we assign to you the copyright in the  final form of any Work which we have specifically created for  you for the countries and for the purposes as specified in the  description of the Work, or if not specified, for the countries  and for the purposes which would be reasonably expected in  light of the nature of your request for the Work. 

22.5This clause 22 shall continue in force as between the parties  notwithstanding the termination of these Terms of Trade or the  completion of the Work. 

23. VARIATION 

23.1We shall be entitled at any time by notice in writing to you to  vary any provision of these Terms of Trade and you shall be  bound by such variation as from the time such notice is given. 24. CONFIDENTIALITY 

24.1You shall at all times treat as confidential all non-public  information and material received from us and shall not  publish, release, or disclose the same without our prior written  consent. For clarity, confidential information includes any new  Intellectual Property and prices.  

25. JURISDICTION 

25.1These Terms of Trade are governed by and construed in  accordance with the current laws of New Zealand and the  parties agree to submit to the non-exclusive jurisdiction of the  Courts of New Zealand for any disputes or proceedings arising  out of or in connection with these Terms of Trade. 

26. NON WAIVER 

26.1If we fail to enforce any provision of these Terms of Trade it  shall not be treated as a waiver of that provision, nor shall it  affect our right to subsequently enforce that provision. If any  provision of these Terms of Trade shall be invalid, void, illegal  or unenforceable the validity, existence, legality and  enforceability of the remaining provisions shall not be affected,  prejudiced or impaired. 

27. DEFINITIONS, INTERPRETATION & MISCELLANEOUS 27.1In these Terms of Trade: 

"Goods" shall have the meaning given to it in the Personal  Property Securities Act 1999. 

"Intellectual Property" includes all intellectual property rights  (including without limitation copyright, patent and design rights,  drawings, documents, data, ideas, procedures and  calculations). 

"Work" means any product, goods or service supplied by us to  you and upon request from time to time. 

27.2The rule of construction known as the contra proferentem rule  does not apply to these Terms of Trade. 

27.3Each clause of these Terms of Trade is separately valid and  binding. If for any reason a party cannot rely on any term, all  other terms will remain valid and binding. 

27.4Words importing the singular include the plural and vice versa. 27.5Headings are for convenience only and do not form part of, or  affect the interpretation of, these Terms of Trade. 

27.6References to a party include that party's successors, personal  representatives, executors, administrators and permitted  assigns. 

27.7References to a statute include references to: 

(a)regulations, orders, rules or notices made pursuant to that  statute;  

(b)all amendments to that statute and those regulations,  orders, rules or notices, whether by subsequent statute or  otherwise; and  

(c)any statute passed in substitution of that statute.  27.8References to "us", “we” and “our” include our employees,  contractors and agent.

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PERSONAL GUARANTEE 

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