Terms and Conditions

Terms and conditions of trade for Sustainable Construction Limited.

1. Definitions

1.1 “SCL” means Sustainable Construction Limited, its successors and assigns or any person acting on behalf of and with the authority of Sustainable Construction Limited.

1.2 “Client” means the person/s ordering the Works as specified in any invoice, document or order, and if there is more than one Client is a reference to each Client jointly and severally.

1.3 “Works” means all Works or Materials supplied by SCL to the Client at the Client’s request from time to time (where the context so permits the terms ‘Works’ or ‘Materials’ shall be interchangeable for the other).

1.4 “Price” means the Price payable for the Works as agreed between SCL and the Client in accordance with clause 4 below.

2. Acceptance

2.1 The Client is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Client places an order for or accepts delivery of any Works.

2.2 These terms and conditions may only be amended with SCL’s consent in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the Client and SCL.

3. Change in Control

3.1 The Client shall give SCL not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client and/or any other change in the Client’s details (including but not limited to, changes in the Client’s name, address, contact phone or fax number/s, or business practice). The Client shall be liable for any loss incurred by SCL as a result of the Client’s failure to comply with this clause.

4. Price and Payment

4.1 At SCL’s sole discretion the Price shall be either:

(a) as indicated on invoices provided by SCL to the Client in respect of Works performed or Materials supplied; or

(b) SCL’s quoted Price (subject to clause 4.2) which shall be binding upon SCL provided that the Client shall accept SCL’s quotation in writing within thirty (30) days.

4.2 SCL reserves the right to change the Price:

(a) if a variation to the Materials which are to be supplied is requested; or

(b) if a variation to the Works originally scheduled (including any applicable plans or specifications) is requested; or

(i) the discovery of hidden or unidentifiable difficulties (including, but not limited to, volcanic rock, iron reinforcing rods in concrete, unauthorised dumping and hazardous chemical contamination); or

(ii) the condition of the site at the commencement of the Works (including, but not limited to, limitations to accessing the site, obscured site defects, safety conditions or prerequisite work by any third party not being completed sufficiently); or

(iii) weather conditions throughout the completion of the Works affecting moisture content and compaction requirements.

(d) in the event of increases to SCL in the cost of labour or materials which are beyond SCL’s control; and

(e) all variations will be detailed in writing and charged for on the basis of SCL’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.

4.3 At SCL’s sole discretion, a non-refundable deposit may be required.

4.4 Time for payment for the Works being of the essence, the Price will be payable by the Client on the date/s determined by SCL, which may be:

(a) by way of progress payments in accordance with SCL’s specified progress payment schedule. Such progress payment claims may include the reasonable value of authorised variations and the value of any Materials delivered to the site but not yet installed;

(b) for certain approved Client’s, due twenty (20) days following the end of the month in which a statement is posted to the Client’s address or address for notices;

(d) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Client by SCL.

4.5 Payment may be made by cash, cheque, bank cheque, electronic/on-line banking, or by any other method as agreed to between the Client and SCL.

4.6 Unless otherwise stated the Price does not include GST. In addition to the Price the Client must pay to SCL an amount equal to any GST SCL must pay for any provision of Works by SCL under this or any other agreement. The Client must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Client pays the Price. In addition the Client 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.

4.7 No allowance has been made in the Price for the deduction of retentions. In the event that retentions are made, SCL reserves the right to treat all retentions as placing the Client’s account into default.

5. Delivery of the Works

5.1 Subject to clause 5.2 it is SCL’s responsibility to ensure that the Works start as soon as it is reasonably possible.

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

(a) make a selection; or

(b) have the site ready for the Works; or

5.3 SCL may deliver the Works by separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.

5.4 Any time or date given by SCL to the Client is an estimate only. SCL shall not be liable for any loss or damage whatsoever due to failure by SCL to deliver the Works (or any part of them) promptly or at all, where due to circumstances beyond the reasonable control of SCL.

6. Risk

6.1 If SCL retains ownership of the Materials under clause 11 then;

(a) where SCL is supplying Materials only, all risk for the Materials shall immediately pass to the Client on delivery and the Client must insure the Materials on or before delivery. Delivery of the Materials shall be deemed to have taken place immediately at the time that the Materials are delivered by SCL or SCL’s nominated carrier to the Client’s nominated delivery address (even if the Client is not present at the address).

(b) where SCL is to both supply and install Materials then SCL shall maintain a contract works insurance policy until the Works are completed. Upon completion of the Works all risk for the Works shall immediately pass to the Client.

6.2 Notwithstanding the provisions of clause 6.1 if the Client specifically requests SCL to leave Materials outside SCL’s premises for collection or to deliver the Materials to an unattended location then such materials shall always be left at sole risk of the Client and it shall be the Client’s responsibility to ensure the Materials are insured adequately or at all. In the event that such Materials are lost, damaged or destroyed then replacement of the Materials shall be at the Client’s expense.

7. Access

7.1 The Client shall ensure that SCL has clear and free access to the site at all times to enable them to undertake the Works. SCL 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 SCL.

8. Underground Locations

8.1 Prior to SCL commencing the Works the Client must advise SCL of the precise location of all underground services on the site and clearly mark the same. The underground mains and services the Client 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.

8.2 Whilst SCL will take all care to avoid damage to any underground services the Client agrees to indemnify SCL 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 8.1.

9. Compliance with Laws

9.1 The Client and SCL shall comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities that may be applicable to the Works, including any occupational health and safety laws relating to building/construction sites and any other relevant safety standards or legislation.

9.2 The Client shall obtain (at the expense of the Client) all licenses and approvals that may be required for the Works.

10. Insurance

10.1 SCL shall have public liability insurance of at least $2m. It is the Clients responsibility to ensure that they are similarly insured.

11. Title

11.1 SCL and the Client agree that ownership of the Materials shall not pass until:

(a) the Client has paid SCL all amounts owing to SCL; and

(b) the Client has met all of its other obligations to SCL.

11.2 Receipt by SCL 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:

(a) until ownership of the Materials passes to the Client in accordance with clause 11.1 that the Client is only a bailee of the Materials and unless the Materials have become fixtures must return the Materials to SCL on request.

(b) the Client holds the benefit of the Client’s insurance of the Materials on trust for SCL and must pay to SCL the proceeds of any insurance in the event of the Materials being lost, damaged or destroyed.

(c) the production of these terms and conditions by SCL shall be sufficient evidence of SCL’s rights to receive the insurance proceeds direct from the insurer without the need for any person dealing with SCL to make further enquiries.

(d) the Client must not sell, dispose, or otherwise part with possession of the Materials other than in the ordinary course of business and for market value. If the Client sells, disposes or parts with possession of the Materials then the Client must hold the proceeds of any such act on trust for SCL and must pay or deliver the proceeds to SCL on demand.

(e) the Client should not convert or process the Materials or intermix them with other goods but if the Client does so then the Client holds the resulting product on trust for the benefit of SCL and must sell, dispose of or return the resulting product to SCL as it so directs.

(f) unless the Materials have become fixtures the Client irrevocably authorises SCL to enter any premises where SCL believes the Materials are kept and recover possession of the Materials.

(g) SCL may recover possession of any Materials in transit whether or not delivery has occurred.

(h) the Client shall not charge or grant an encumbrance over the Materials nor grant nor otherwise give away any interest in the Materials while they remain the property of SCL.

(i) SCL may commence proceedings to recover the Price of the Materials sold notwithstanding that ownership of the Materials has not passed to the Client.

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

12.1 Upon assenting to these terms and conditions in writing the Client acknowledges and agrees that:

(a) these terms and conditions constitute a security agreement for the purposes of the PPSA; and

(b) a security interest is taken in all Materials previously supplied by SCL to the Client (if any) and all Materials that will be supplied in the future by SCL to the Client.

12.2 The Client 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 SCL may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register;

(b) indemnify, and upon demand reimburse, SCL for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register or releasing any Materials charged thereby;

(d) immediately advise SCL of any material change in its business practices of selling Materials which would result in a change in the nature of proceeds derived from such sales.

12.3 SCL and the Client agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms and conditions.

12.4 The Client waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA.

12.5 Unless otherwise agreed to in writing by SCL, the Client waives its right to receive a verification statement in accordance with section 148 of the PPSA.

12.6 The Client shall unconditionally ratify any actions taken by SCL under clauses 12.1 to 12.5.

13. Security and Charge

13.1 In consideration of SCL agreeing to provide the Works, the Client 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 Client either now or in the future, to secure the performance by the Client of its obligations under these terms and conditions (including, but not limited to, the payment of any money).

13.2 The Client indemnifies SCL from and against all SCL’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising SCL’s rights under this clause.

13.3 The Client irrevocably appoints SCL and each director of SCL as the Client’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 Client’s behalf.

14. Client’s Disclaimer

14.1 The Client hereby disclaims any right to rescind, or cancel any contract with SCL or to sue for damages or to claim restitution arising out of any inadvertent misrepresentation made to the Client by SCL and the Client acknowledges that the Works are bought relying solely upon the Client’s skill and judgment.

15. Defects, Errors and Omissions

15.1 The Client shall inspect the Works upon completion and shall within seven (7) days of delivery (time being of the essence) notify SCL of any alleged defect, error or omission, shortage in quantity, damage or failure to comply with the description or quote.

15.2 For the provision of Works on an hourly basis, the Client must inspect the Works completed daily and the notification period for defects (as per clause 15.1) shall be upon such inspection.

15.3 The Client shall afford SCL an opportunity to review the Works within a reasonable time following such notification if the Client believes the Works are defective in any way. If the Client shall fail to comply with these provisions the Works shall be presumed to be free from any defect or damage. For defective Works, which SCL has agreed in writing that the Client is entitled to reject, SCL’s liability is limited to either (at SCL’s discretion) replacing the Materials or repairing/rectifying the Works.

15.4 Materials will not be accepted for return other than in accordance with 15.3 and 15.1 above.

16. Consumer Guarantees Act 1993

16.1 If the Client is acquiring Materials for the purposes of a trade or business, the Client acknowledges that the provisions of the Consumer Guarantees Act 1993 do not apply to the provision of Works by SCL to the Client.

17. Intellectual Property

17.1 Where SCL has designed, drawn, written plans or a schedule of Works, or created any products for the Client, then the copyright in all such designs, drawings, documents, plans, schedules and products shall remain vested in SCL, and shall only be used by the Client at SCL’s discretion.

17.2 The Client warrants that all designs, specifications or instructions given to SCL will not cause SCL to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify SCL against any action taken by a third party against SCL in respect of any such infringement.

17.3 The Client agrees that SCL may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings, plans or products which SCL has created for the Client.

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

18.2 If the Client owes SCL any money the Client shall indemnify SCL from and against all costs and disbursements incurred by SCL in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, SCL’s collection agency costs, and bank dishonour fees).

18.3 Without prejudice to any other remedies SCL may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions SCL may suspend or terminate the provision of Works to the Client. SCL will not be liable to the Client for any loss or damage the Client suffers because SCL has exercised its rights under this clause.

18.4 Without prejudice to SCL’s other remedies at law SCL shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to SCL shall, whether or not due for payment, become immediately payable if:

(a) any money payable to SCL becomes overdue, or in SCL’s opinion the Client will be unable to make a payment when it falls due;

(b) the Client becomes insolvent or bankrupt, 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

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

19. Cancellation

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

19.2 In the event that the Client cancels the delivery of Works the Client shall be liable for any and all loss incurred (whether direct or indirect) by SCL as a direct result of the cancellation (including, but not limited to, any loss of profits).

19.3 Cancellation of orders for Materials made to the Client’s specifications, or for non-stocklist items, will definitely not be accepted once production has commenced, or an order has been placed.

20. Privacy Act 1993

20.1 The Client authorises SCL or SCL’s agent to:

(a) access, collect, retain and use any information about the Client;

(i) (including any overdue fines balance information held by the Ministry of Justice) for the purpose of assessing the Client’s creditworthiness; or

(ii) for the purpose of marketing products and services to the Client.

(b) disclose information about the Client, whether collected by SCL from the Client directly or obtained by SCL 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.

20.2 Where the Client is an individual the authorities under clause 20.1 are authorities or consents for the purposes of the Privacy Act 1993.

20.3 The Client shall have the right to request SCL for a copy of the information about the Client retained by SCL and the right to request SCL to correct any incorrect information about the Client held by SCL.

21. Dispute Resolution

21.1 All disputes and differences between the Client and SCL touching and concerning this agreement shall be referred to arbitration under a single arbitrator agreed upon by both parties, or failing agreement, by two arbitrators (one to be appointed by each party) and their umpire (appointed by them prior to arbitration), such arbitration to be carried out in accordance with provisions of the Arbitration Act 1996.

22. General

22.1 The failure by SCL to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect SCL’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.

22.2 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 of New Zealand.

22.3 SCL shall be under no liability whatsoever to the Client for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by SCL of these terms and conditions (alternatively SCL’s liability shall be limited to damages which under no circumstances shall exceed the Price).

22.4 The Client shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Client by SCL nor to withhold payment of any invoice because part of that invoice is in dispute.

22.5 SCL may license or sub-contract all or any part of its rights and obligations without the Client’s consent.

22.6 The Client agrees that SCL may amend these terms and conditions at any time. If SCL makes a change to these terms and conditions, then that change will take effect from the date on which SCL notifies the Client of such change. The Client will be taken to have accepted such changes if the Client makes a further request for SCL to provide any Works to the Client.

22.7 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.

22.8 The Client warrants that it has the power to enter into this agreement and has obtained all necessary authorisations to allow it to do so, it is not insolvent and that this agreement creates binding and valid legal obligations on it.