Terms of trade

1. Definitions

  1. “Contract” means the terms and conditions contained herein, together with any Price, order, invoice or other document or amendments expressed to be supplemental to this Contract.
    1. “A1” means A1 Diggers Limited (or otherwise referred to as the “Vendor”), its successors and assigns or any person acting on behalf of and with the authority of A1 Diggers Limited .
    1. “Client” means the person/s, entities or any person acting on behalf of and with the authority of the Client requesting A1 to provide the Works as specified in any proposal, price, order, invoice or other documentation, and:
      1. if there is more than one Client, is a reference to each Client jointly and severally; and
      1. if the Client is a partnership, it shall bind each partner jointly and severally; and
      1. if the Client is a part of a Trust, shall be bound in their capacity as a trustee; and
      1. includes the Client’s executors, administrators, successors and permitted assigns.
    1. “Goods” means all Goods, Services, Materials or Works supplied by A1 to the Client (including consultation, materials, construction and/or installation services) supplied by A1 to the Client at the Client’s request from time to time (where the context so permits the terms “Goods” or “Services” or “Materials” or “Works” shall be interchangeable for the other).
    1. “Cookies” means small files which are stored on a user’s electronic device. They are designed to hold a modest amount of data (including PII) specific to a particular client and website and can be accessed either by the web server or the Client’s electronic device. If the Client does not wish to allow Cookies to operate in the background when ordering from the website, then the Client shall have the right to enable/disable the Cookies first by selecting the option to enable/disable provided on the website, prior to ordering Works via the website.
    1. “Price” means the Price payable (plus any Goods and Services Tax (“GST”) where applicable) for the Works as agreed between A1 and the Client in accordance with clause 6 below.

2. Acceptance

  • 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.
    • 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.
    • Any amendment to the terms and conditions contained in this Contract may only be amended in writing by the consent of both parties.
    • The Client acknowledges that the supply of Works on credit shall not take effect until the Client has completed a client information form with A1 and it has been approved with a credit limit established for the account, if required.
    • In the event that the supply of Works request exceeds the Clients credit limit and/or the account exceeds the payment terms, A1 reserves the right to refuse acceptance for new orders or refuse delivery of the Services.
    • The Client shall be responsible for all costs associated with the removal and dumping of all contaminated soil/hazardous materials.
    • Where A1 gives any advice, recommendation, information, assistance or service provided by A1 in relation to Materials or Works supplied is given in good faith and is based on A1’s own knowledge and experience and shall be accepted without liability on the part of A1.
    • Where such advice or recommendation is not acted upon then A1 shall require the Client or their agent to authorise commencement of the Works in writing. A1 shall not be liable in any way whatsoever for any damages or losses that occur after any subsequent commencement of the Works.
    • If A1 has been requested by the Client to prepare a Price that involves multiple site visits or third party involvement (including but not limited to engineers, surveyor or local councils), all costs involved will be charged to the Client irrespective of whether or not the Works go ahead.
    • 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.
    • In the event that A1 is required to provide the Works urgently, that may result in A1 to work outside normal business hours (including, but, not limited to working through lunch breaks, weekends and/or Public Holidays) or incur travel or accommodation costs, then A1 reserves the right to charge the Client the additional costs unless otherwise agreed between A1 and the Client.

3. Errors and Omissions

  • The Client acknowledges and accepts that A1 shall, without prejudice, accept no liability in respect of any alleged or actual error(s) and/or omission(s):
    • resulting from an inadvertent mistake made by A1 in the formation and/or administration of this Contract; and/or
    • contained in/omitted from any literature (hard copy and/or electronic) supplied by A1 in respect of the Works.
    • 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 wilful misconduct of A1; the Client shall not be entitled to treat this Contract as repudiated nor render it invalid.
    • Clerical errors or omissions, whether in computation or otherwise in the quotation, acknowledgement or invoice shall be subject to correction.

4. Authorised Representatives

  • The Client acknowledges that A1 shall (for the duration of the Works) liaise directly with one (1) authorised representative and that once introduced as such to A1, that person shall have the full authority of the Client to order any Works, and/or to request any variation thereto on the Client’s behalf. The Client accepts that they will be solely liable to A1 for all additional costs incurred by A1 (including A1’s profit margin) in providing any Works, or variation/s requested thereto by the Client’s duly authorised representative.
    • If the Client’s duly authorised representative as per clause 4.1 is to have only limited authority to act on the Client’s behalf, then the Client must specifically and clearly advise A1 in writing of the parameters of the limited authority granted to their representative.
    • The Client specifically acknowledges and accepts that they will be solely liable to A1 for all additional costs incurred by A1 (including A1’s profit margin) in providing any Works, Materials or variations requested by the Client’s duly authorised representative (subject always to the limitations imposed under clause 4.2 (if any).

5. Change in Control

  • The Client shall give A1 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 details, change of directors, change of trustees, or business practice). The Client shall be liable for any loss incurred by A1 as a result of the Client’s failure to comply with this clause.

6.  Price and Payment

  • At A1’s sole discretion the Price shall be either:
    • as indicated on invoices provided by A1 to the Client in respect of Works performed or Materials supplied; or
    • A1’s quoted Price (subject to clause 6.2) which shall be binding upon A1 provided that the Client shall accept A1’s Price in writing within thirty (30) days.
    • A1 reserves the right to change the Price:
      • if a variation to the Materials which are to be supplied is requested; or
      • if a variation to the Works originally scheduled (including any applicable plans or specifications) is requested; or
      • where additional Works are required due to the discovery of hidden or unidentifiable difficulties (including, but not limited to, poor weather conditions, limitations to site access, availability of excavation machinery, equipment damage, safety considerations, prerequisite work by a third party not being completed, inaccurate measurements, presence of tree stumps, removal thereof and chasing of the roots, remedial work, ground work required, hard rock or other barriers below the surface, latent soil conditions, iron reinforcing rods in concrete, or hidden pipes and wiring, etc.) which are only discovered on commencement of the Works; or
      • if unforeseen problems with the Worksite, including, but, not limited to, adverse ground conditions, made-up ground (such as where landfill has been effected over old rubbish tips and/or reclaimed land) or contamination of the Worksite, or loss or damage to below-ground equipment which are only revealed when undertaking the Services, and which may require further Services.
      • in the event of increases to A1 in the cost of labour or materials which are beyond A1’s control.
    • Variations will be charged for on the basis of A1’s Price, and will be detailed in writing, and shown as variations on A1’s invoice. The Client shall be required to respond to any variation submitted by A1 within ten (10) working days. Failure to do so will entitle A1 to add the cost of the variation to the Price. Payment for all variations must be made in full at the time of their completion.
    • A1 reserves the right to change the Price if a variation to the Goods supplied is requested by the Client or in the event of increases to A1 in the cost of labour or Goods, different from the accepted quoted Price, (if delivery of Goods is delayed by the Client beyond 90 days from the acceptance of the quoted Price) which are beyond A1’s control
    • Unless otherwise stated A1’s quoted rice does not include, dewatering shoring, retaining walls or any temporary support to neighbouring buildings fences or footpaths, filling of soft spots, compaction testing, sediment fence/storm water control, covering soil stockpiles, cutting kerb and channel or footpaths, rock breaking, dust/silt control, public barricades or signage.
    • At A1’s sole discretion a non-refundable deposit may be required.
    • Time for payment for the Works being of the essence, the Price will be payable by the Client on the date/s determined by A1, which may be:
      • on completion of the Works; or
      • by way of progress payments in accordance with A1’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 worksite but not yet installed; or
      • the date specified on any invoice or other form as being the date for payment; or
      • for certain approved Clients, due twenty (20) days following the end of the month in which an invoice is sent to the Client’s address or address for notices; or
      • failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Client by A1; or
      • immediately payable at the time the Client places an order for any non-stock list item or bespoke Goods that A1 have to pay to any third-party supplier.
    • Payment may be made by electronic/on-line banking, EFTPOS, credit card (a surcharge per transaction may apply) or by any other method as agreed to between the Client and A1.
    • A1 may in its discretion allocate any payment received from the Client towards any invoice that A1 determines and may do so at the time of receipt or at any time afterwards. On any default by the Client A1 may re-allocate any payments previously received and allocated. In the absence of any payment allocation by A1, payment will be deemed to be allocated in such manner as preserves the maximum value of A1’s Purchase Money Security Interest (as defined in the PPSA) in the Materials.
    • 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 A1 nor to withhold payment of any invoice because part of that invoice is in dispute, unless the request for payment by A1 is a claim made under the Construction Contracts Act 2002.
    • Unless otherwise stated the Price does not include GST. In addition to the Price, the Client must pay to A1 an amount equal to any GST A1 must pay for any supply by A1 under this or any other agreement for the sale of the Materials. 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.

7. Provision of the Services

  • Subject to clause 7.2 it is A1’s responsibility to ensure that the Services start as soon as it is reasonably possible.
    • The Services’ commencement date will be put back and the completion date extended by whatever time is reasonable in the event that A1 claims an extension of time (by giving the Client written notice) where completion is delayed by an event beyond A1’s control, including but not limited to 
      • extreme weather or temperature; or
      • delays caused by third party contractors engaged by the Client; or
      • any failure by the Client to:
        • make a selection; or
        • have the site ready for the Services; or
        • notify A1 that the site is ready.
    • The Client acknowledges and accepts that where the Client wishes to postpone the Services, that A1 must be notified in writing within twenty-four (24) hours of the proposed commencement date as agreed to between both parties. Where such notice is received outside of this timeframe, A1 reserves the right to charge a reasonable fee for the delay in the commencement of the Services.
    • The Client acknowledges that when A1 arrives on the worksite, changes in methodology may occur, this may affect the original quotation and A1 shall reserve the right to provide a requote based on any new information that becomes apparent.
    • A1 may deliver the Services by separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.
    • Any time specified by A1 for delivery of the Services is an estimate only and A1 will not be liable for any loss or damage incurred by the Client as a result of delivery being delayed for any reason. However, both parties agree that they shall make every endeavour to enable the Works to be supplied at the time and place as was arranged between both parties. In the event that A1 is unable to supply the Services as agreed solely due to any action or inaction of the Client, then A1 shall be entitled to charge a reasonable fee for re-supplying the Services at a later time and date, and/or for storage of the Materials.

8. Insurance

  • A1 shall have public liability insurance of at least five million dollars ($5m). It is the Client’s responsibility to ensure that they are similarly insured.
    • In the event of any breach of this contract by A1, the remedies of the Client shall be limited to damages. Under no circumstances shall the liability of A1 exceed the cost of the Services supplied.
    • While A1 provides the Services in good faith and to the best of its ability, A1 is not liable for any costs, damages or loss suffered by the Client as a result of omissions or inaccuracies in the information provided. The Client accepts A1’s Services on the basis that to the maximum extent permitted by law, any liability of A1 for the Services provided under the contract is hereby excluded. This is regardless of whether such liability arises in contract, tort (including negligence), equity, breach of statutory duty or otherwise.

9. Access

  • The Client shall ensure that A1 has clear and free access to the worksite at all times to enable them to undertake the Services.(including inspections, gaining signatures for required documents etc). A1 shall not be liable for any loss or damage to the worksite (including, without limitation, damage to pathways, trees, plants, trees, shrubs, driveways and concreted or paved or grassed areas) unless due to the negligence of A1.
    • It is the responsibility of the Client to ensure that access is suitable to accept the weight of laden trucks, front end loaders or other earth moving equipment as may be deemed necessary by A1. The Client agrees to indemnify A1 against all costs incurred by A1 in recovering such vehicles in the event they become bogged or otherwise immovable.
    • The Client acknowledges and agrees that in the event A1 requires access, in order to undertake the Works, to an adjoining or adjacent property or land to the nominated job site, that is not owned by the Client, then it is the Client’s responsibility to gain permission from the landowner to use the above mentioned property throughout the process or delivering the Works. In the event the landowner denies access or use of the land or property, the Client shall be liable for all costs incurred by A1 in gaining permission to access and/or use the property through any legal process that may be deemed necessary.
    • The Client shall ensure that the correct traffic and pedestrian measures are in place. Failure to do so will result in the Client becoming liable for any costs incurred by A1.
    • The Client agrees to be present at the Worksite when and as reasonably requested by A1 and it’s employees, contractors and/or agents.
    • Worksite Inductions
      • in the event the Client requires an employee or sub-contractor of A1 to undertake a Worksite induction during working hours, the Client will be liable to pay the hourly charges for that period. If any induction needs to be undertaken prior to the commencement date then the Client shall be liable to pay A1’s standard (and/or overtime, if applicable) hourly labour rate; or
      • where A1 is in control of the Worksite, the Client and/or the Client’s third-party contractors must initially carry out A1’s Health & Safety induction course before access to the Worksite will be granted. Inspection of the Worksite during the Services will be by appointment only and unless otherwise agreed, in such an event the Client and/or third party acting on behalf of the Client must at all times be accompanied by A1.

10. Risk

  1. Irrespective of whether A1 retains ownership of the Services under clause 15 then, all risk for such items shall immediately pass to the Client on delivery and the Client must insure the Services on or before delivery. Delivery of the Services shall be deemed to have taken place immediately at the time that the Services are delivered by A1 or A1’s nominated carrier to the Client’s nominated delivery address (even if the Client is not present at the address).
    1. A1 reserves the right to seek compensation or damages for any damage, destruction or loss suffered in relation to the Services as a result of the Client’s failure to insure in accordance with clause 10.1.
    1. The Client acknowledges that, whilst A1 shall make endeavours to remove from the Worksite all rubbish, excavated material, vegetation, demolished or dismantled structures, A1 shall not be held liable for any small amounts of rubbish and the like, remaining at the Worksite.
    1. A1 shall be entitled to rely on the accuracy of any plans, specifications and other information provided by the Client. The Client acknowledges and agrees that in the event that any of this information provided by the Client is inaccurate, A1 accepts no responsibility for any loss, damages, or costs however resulting from these inaccurate plans, specifications or other information.
    1. The final location of the exact drilling or excavation site must be determined on the Worksite and is the Client’s sole responsibility.
    1. If during the drilling operation, and as a result of extraordinary down hole issues, A1 decides (based on industry experience) that the risk is too great to continue the hole, A1 shall advise the Client, or the Client’s agent, regarding the risk of continuing. Where such advice is not acted on and A1 is requested to continue, then A1 shall require the Client or their agent to authorise the continuance of the Services in writing. A1 shall not be liable in any way whatsoever for any damages or losses that occur after any subsequent continuance of the Services, and the Client shall reimburse A1 for any equipment lost at the landed, new cost price of the replacement equipment.
    1. The Client accepts that where required, any specific site conditions or work practices requested by local iwi shall be observed where possible.
    1. The Client agrees to remove any items from the vicinity of the Services and agrees that A1 shall not be liable for any damage caused to those items through the Client’s failure to comply with this clause.
    1. It shall be the Client’s responsibility (where applicable) to ensure that, prior to commencement of the Services by A1:
      1. all services including gas and electricity are cancelled and disconnected (from the main supply at the street); and
      1. a safety fence is erected around the perimeter of the Worksite to ensure public safety; and
      1. investigate local laws in relation to the pruning and/or removal of trees, and (where necessary) obtain (at the expense of the Client) all permits, licenses and approvals that may be required for the Services. Temporary fences may need to be erected around the circumference of the tree, and if so, the Client shall arrange the erection in conjunction with A1; and
      1. the Client will supply lighting, telecommunications, tap water supply, compressed air, power, toilet, waste disposal amenities, eating and first aid facilities if required.
    1. Where A1 requires that Materials, tools etc. required for the Works be stored at the site, the Client shall supply A1 a safe area for storage and shall take all reasonable efforts to protect all items from destruction, theft or damage. In the event that any of the stored items are destroyed, stolen or damaged, then the cost of repair or replacement shall be the Client’s responsibility.
    1. If a third party damages work already undertaken by A1, there is no liability to A1 and A1 will be allowed to charge a reasonable fee to fix the damage caused.
    1. Notwithstanding clause 10.9(c) the Client acknowledges and agrees to advise A1 prior to commencement of any Services where the removal of any trees may be subject to a protection order and/or on a heritage list and warrants to ensure that A1’s Services will comply with the relevant restrictions, legislation and/or by-laws. A1 shall not be liable for any loss, expense or damage suffered by the Client in relation to the Services where resulting from the Client’s non-compliance with this clause.
    1. Where the Client required is to provide heavy equipment, scaffolding and traffic management, these must be fit for purpose. Where A1 believes these are not fit for purpose, A1 shall reserve the right to charge a variation for the resupply of the same.
    1. In the event that during the course of the Services A1 discovers any fossils, artefacts or any other remains of geological or archaeological interest are discovered A1 reserves the right to halt all Services, remove any of their equipment from the worksite and immediately notify the Client. Unless subject to clause 29.9, the Client accepts and agrees that all additional costs that may be incurred by A1 as a result of any such delays (including but not limited to in the event A1 is unable to remove their equipment from the worksite, etc.) shall be borne by the Client and shall be treated as a variation in accordance with clause 6.2.
    1. Where A1 has affected delivery, all risk passes to the Client as per clause 10.1 and the Client claims the Materials have been stolen, it shall be The Client’s responsibility to contact the police, and shall not excuse the Client from fulfilling their financial obligations under this Contract.
    1. A1 shall be entitled to rely on the accuracy of any surveyed boundary lines, plans, specifications and other information supplied by the Client. The Client acknowledges and agrees that in the event that any of this information is inaccurate, A1 accepts no responsibility for any loss, damages, or costs resulting from this inaccurate information.
    1. Where A1 is to both supply and install Materials, then as agreed between the parties, A1 or the Client shall maintain a contract works insurance policy (evidence of which will be required) until the Services are completed. Upon completion of the Services all risk for the Services shall immediately pass to the Client.

11. Asbestos/Hazardous Materials

  1. Prior to A1 commencing any Works the Client must advise A1 of the precise location of all known Asbestos/Hazardous Materials on the site and clearly mark the same. Removal from the site and the disposal of Asbestos/Hazardous Materials shall at all times be the Client’s responsibility unless otherwise agreed in writing.
    1. In the event that A1 discovers Asbestos/Hazardous Materials whilst undertaking any Works A1 shall immediately advise the Client of the same and shall be entitled to suspend the Works pending a risk assessment in relation to those materials. The Client shall be liable for all additional costs (howsoever arising) incurred by A1 as a result of the discovery of Asbestos/Hazardous Materials and/or any suspension of Works in relation thereto.
    1. Where A1 agrees to remove any Asbestos/Hazardous Materials on the Client’s behalf this shall be treated as a variation as per clause 6.2.

12. Fire Control

  1. The Client acknowledges and agrees that where the Client requests A1 to start a fire to burn off grass or any form of debris then:
    1. A1 shall only do so at the Client’s sole risk; and
    1. it shall be the Client’s responsibility to maintain and control the fire until it is completely out/extinguished; and
    1. the Client agrees to indemnify A1 against all costs incurred by A1 (howsoever arising) should the Client fail to comply with clause 12.1(b).
    1. A1 (at its sole discretion) reserves always the right to refuse to burn off any grass or debris where it believes the risk in so doing to be too great.
    1. In the event that it is agreed in writing by both parties that it shall be A1’s responsibility to maintain and control the fire then A1 shall charge for such Services at its standard hourly rate commencing from the time the fire is lit and continuing until the fire is completely out/extinguished.
    1. The cost of the attendance of Fire Prevention Services (if deemed necessary by either party to this Contract) shall always be the Client’s Responsibility.

13. Compliance With Laws

  1. The Client and A1 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 relating Worksafe health and safety laws or any other relevant safety standards or legislation pertaining to the Works.
    1. The Client shall obtain (at the expense of the Client) any building consent and resource consent and any other licenses and approvals that may be required for the Works. A1 will require confirmation that all consents and approvals have been obtained by the Client prior to the commencement of the Works. In the event that any required consents are only obtained following commencement of the Works, any additional cost incurred due to any changes to the original plans and specifications provided by the Client shall be charged as a variation, in accordance with clause 6.2.
    1. Notwithstanding clause 13.1 and pursuant to the Health & Safety at Work Act 2015 (the “HSW Act”) A1 agrees at all times to comply with sections 28 and 34 of the “HSW Act” with meeting their obligations for health and safety laws in the workplace regardless of whether they may be the party in control of the worksite or where they may be acting as a sub-contractor for the Client who has engaged a third party namely A1.

14. Underground Locations

  1. Prior to A1 commencing any Work the Client must advise A1 of the precise location of all underground services on the site and clearly mark the same. The underground mains & 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.
    1. Whilst A1 will take all care to avoid damage to any underground services the Client agrees to indemnify A1 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 14.1.

15. Title

  1. A1 and the Client agree that ownership of the Materials shall not pass until:
    1. the Client has paid A1 all amounts owing to A1; and
    1. the Client has met all of its other obligations to A1.
    1. Receipt by A1 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.
    1. It is further agreed that:
      1. until ownership of the Materials passes to the Client in accordance with clause 15.1 that the Client is only a bailee of the Materials and unless the Materials have become fixtures must return the Materials to A1 on request; and
      1. the Client holds the benefit of the Client’s insurance of the Materials on trust for A1 and must pay to A1 the proceeds of any insurance in the event of the Materials being lost, damaged or destroyed; and
      1. the production of these terms and conditions by A1 shall be sufficient evidence of A1’s rights to receive the insurance proceeds direct from the insurer without the need for any person dealing with A1 to make further enquiries; and
      1. 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 A1 and must pay or deliver the proceeds to A1 on demand; and
      1. 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 A1 and must sell, dispose of or return the resulting product to A1 as it so directs; and
      1. unless the Materials have become fixtures the Client irrevocably authorises A1 to enter any premises where A1 believes the Materials are kept and recover possession of the Materials; and
      1. A1 may recover possession of any Materials in transit whether or not delivery has occurred; and
      1. 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 A1; and
      1. A1 may commence proceedings to recover the Price of the Materials sold notwithstanding that ownership of the Materials has not passed to the Client.

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

  1. 16.1   Upon assenting to these terms and conditions in writing the Client acknowledges and agrees that:
    1. these terms and conditions constitute a security agreement for the purposes of the PPSA; and
    1. a security interest is taken in all present or after acquired Goods and/or collateral (account) – being a monetary obligation of the Client to A1 for Goods that have previously been supplied and that will be supplied in the future by A1 to the Client.
    1. The Client hereby acknowledges that these Terms and Conditions of Trade constitute a security agreement which creates a security interest in favour of the Vendor:
      1. for all Goods previously supplied by the Vendor to the Client (if any); and
      1. for all of its present and after acquired Goods; and
      1. for intellectual property arising out of or in connection with the Services.
    1. The Client agrees to grant a “Purchase Money Security Interest” to the Vendor in respect to all amounts owed by the Client to the Vendor, as that term is defined in the PPSA.
    1. Where Goods in respect of which title has not passed to the Client are sold by the Client in the ordinary course of business, the book debt created on the sale and the proceeds of sale when received shall be held by the Client for the Vendor in terms of section 45 of the PPSA:
      1. Where any proceeds of sale are placed in the Client’s bank account the funds in the Client’s bank account shall be deemed to be held on trust for the Vendor to the extent of proceeds of sale; and
      1. Where any payments are made from the Client’s bank account otherwise than to A1 payment shall be deemed to have been made from all other funds in the Client’s bank account and not from funds held on trust for the Vendor; and
      1. The trust obligation imposed by this clause and the Vendor’s entitlements under the PPSA shall continue for so long as the Vendor is unpaid for all Goods supplied to the Client.
    1. The Client undertakes to:
      1. sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which A1 may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register; and
      1. indemnify, and upon demand reimburse, A1 for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register or releasing any Goods charged thereby; and
      1. not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods and/or collateral (account) in favour of a third party without the prior written consent of A1; and
      1. immediately advise A1 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.
    1. A1 and the Client agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms and conditions.
    1. If any of the Goods are incorporated in or used as material for other goods before payment is made ownership in the whole of the other goods shall be and remain with the Vendor until payment is made. The Vendor’s Security Interest in the Goods shall continue in the terms of section 82 of the PPSA.
    1. The Client waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, and 131of the PPSA.
    1. 16.9   Unless otherwise agreed to in writing by A1, the Client waives its right to receive a verification statement in accordance with section 148 of the PPSA.
    1. The Client shall unconditionally ratify any actions taken by A1 under clauses 16.1 to 16.9.

17. Security and Charge

  1. In consideration of A1 agreeing to supply 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).
    1. The Client indemnifies A1 from and against all A1’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising A1’s rights under this clause.
    1. The Client irrevocably appoints A1 and each director of A1 as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 17 including, but not limited to, signing any document on the Client’s behalf.

18. Defects

  1. The Client shall inspect the Materials on delivery and shall within twenty-four (24) hours of delivery (time being of the essence) notify A1 of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Client shall afford A1 an opportunity to inspect the Materials within a reasonable time following delivery if the Client believes the Materials are defective in any way. If the Client shall fail to comply with these provisions the Materials shall be presumed to be free from any defect or damage. For defective Materials, which A1 has agreed in writing that the Client is entitled to reject, A1’s liability is limited to either (at A1’s discretion) replacing the Materials or repairing the Materials.
    1. Materials will not be accepted for return other than in accordance with 18.1 above, and provided that:
      1. A1 have agreed in writing to accept the return of the Materials; and
      1. the Materials are returned at the Client’s cost within 14 days of the delivery date; and
      1. A1 will not be liable for Materials which have not been stored or used in a proper manner.

19. Returns

  1. A1 has no obligation to accept the return of Materials for credit.

20. Warranties

  • Subject to the conditions of warranty set out in clause 20.2 A1 warrants that if any defect in any workmanship of A1 becomes apparent and is reported to A1 within twenty-four (24) months of the date of delivery or completion (??), then A1 will either (at A1’s sole discretion) replace or remedy the workmanship.
    • The conditions applicable to the warranty given by clause 20.1 are:
      • the warranty shall not cover any defect or damage which may be caused or partly caused by or arise through:
        • failure on the part of the Client to properly maintain any Materials; or
        • failure on the part of the Client to follow any instructions or guidelines provided by A1 or the Manufacturer; or
        • any use of any Materials otherwise than for any application specified on a quote or order form; or
        • the continued use of any Materials after any defect becomes apparent or would have become apparent to a reasonably prudent operator or user; or
        • fair wear and tear, any accident or act of God (see clause 29.9); or
        • failure of the cable at a point other than the location of the repairs undertaken by A1.
      • the warranty shall cease and A1 shall thereafter in no circumstances be liable under the terms of the warranty if the workmanship is repaired, altered or overhauled without A1’s consent; and
      • in respect of all claims A1 shall not be liable to compensate the Client for any delay in either replacing or remedying the workmanship or in properly assessing the Client’s claim.
    • A1 will provide to the Client a Client Responsibility Sheet that will advise due care and maintenance required as soon as possession of the Works is taken by the Client. Failure to adhere to the condition of the Client Responsibility Sheet may invalidate the conditions of this warranty.
    • For Materials not manufactured by A1, the warranty shall be the current warranty provided by the manufacturer of the Materials. A1 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 Materials.

21. Consumer Guarantees Act 1993

  • The Client agrees that if they are acquiring Materials for the purposes of a business (as that term is defined in the CGA), to the extent permitted by law the provisions of the CGA will not apply to the supply of Goods by A1 to the Client.

22. Intellectual Property

  • Where A1 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 A1, and shall only be used by the Client at A1’s discretion. Under no circumstances may such designs, drawings and documents be used without the express written approval of A1.
    • The Client warrants that all designs, specifications or instructions given to A1 will not cause A1 to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify A1 against any action taken by a third party against A1 in respect of any such infringement.
    • The Client agrees that A1 may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings, plans or products which A1 has created for the Client.

23. Overdue Payments

  • 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 A1’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
    • If the Client owes A1 any money the Client shall indemnify A1 from and against all costs and disbursements incurred by A1 in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, A1’s collection agency costs, and bank dishonour fees).
    • Further to any other rights or remedies A1 may have under this Contract, if a Client has made payment to A1, and the transaction is subsequently reversed, the Client shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by A1 under this clause 23, where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Client’s obligations under this Contract.
    • Without prejudice to A1’s other remedies at law A1 shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to A1 shall, whether or not due for payment, become immediately payable if:
      • any money payable to A1 becomes overdue, or in A1’s opinion the Client will be unable to make a payment when it falls due; or
      • the Client has exceeded any applicable credit limit provided by A1; or
      • 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
      • a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.

24. Cancellation

  • Without prejudice to any other rights or remedies A1 may have, if at any time the Client is in breach of any obligation (including those relating to payment and/or failure to remedy any breach in respect of this Contract within ten (10) working days of receipt by the Client of such notice/s) then A1 may suspend the Works immediately. A1 will not be liable to the Client for any loss or damage the Client suffers because A1 has exercised its rights under this clause.
    • A1 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 A1 shall repay to the Client any sums paid in respect of the Price, less any amounts owing by the Client to A1 for Works already performed. A1 shall not be liable for any loss or damage whatsoever arising from such cancellation.
    • 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 A1 as a direct result of the cancellation (including, but not limited to, any loss of profits).
    • Cancellation of orders for products 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.

25. Privacy Policy

  • All emails, documents, images or other recorded information including Personally Identifiable Information (PII) as defined and referred to in clause 25.4 held or used by A1 is considered confidential. A1 acknowledges its obligation in relation to the handling, use, disclosure and processing of PII 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” then the EU Data Privacy Laws (including the General Data Protection Regulation “GDPR”) (collectively, “EU Data Privacy Laws”). A1 acknowledges that in the event it becomes aware of any data breaches and/or disclosure of the Clients PII, held by A1 that may result in serious harm to the Client, A1 will notify the Client in accordance with the Act and/or the GDPR. Any release of such PII must be in accordance with the Act and the GDPR (where relevant) and must be approved by the Client by written consent, unless subject to an operation of law.
    • Notwithstanding clause 25.1, privacy limitations will extend to A1 in respect of Cookies where transactions for purchases/orders transpire directly from A1’s website. A1 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 the Clients Personal Information such as:
      • IP address, browser, email Client type and other similar details;
      • tracking website usage and traffic;
      • reports which are available to A1 when A1 sends an email to the Client; so A1 may collect and review that information (collectively “PII”)
    • If the Client consents to the Contractor’s use of Cookies on the Contractor’s website and later wish to withdraw that consent, the Client may manage and control the Contractor’s privacy controls via the Client’s web browser, including removing Cookies by deleting them from the browser history when exiting the site.
    • The Client authorises A1 or A1’s agent to:
      • access, collect, retain and use any information about the Client;
        • (including, name, address, D.O.B, occupation, driver’s license details, electronic contact (e.g. email, Facebook or Twitter 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 Client’s creditworthiness; or
        • for the purpose of marketing products and services to the Client.
      • disclose information about the Client, whether collected by A1 from the Client directly or obtained by A1 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.
    • Where the Client is an individual the authorities under clause 25.4 are authorities or consents for the purposes of the Privacy Act 2020.
    • The Client shall have the right to request A1 for a copy of the PII about the Client retained by A1 and the right to request A1 to correct any incorrect PII about the Client held by A1.

26. Suspension of Works

  • Where the Contract is subject to the Construction Contracts Act 2002, the Client hereby expressly acknowledges that:
    • A1 has the right to suspend work within five (5) working days of written notice of its intent to do so if a payment claim is served on the Client, and:
      • the payment is not paid in full by the due date for payment in accordance with clause 6.5 and/or any subsequent amendments; or new legislation and no payment schedule has been given by the Client; or
      • a scheduled amount stated in a payment schedule issued by the Client in relation to the payment claim is not paid in full by the due date for its payment; or
      • the Client has not complied with an adjudicator’s notice that the Client must pay an amount to A1 by a particular date; and
      • A1 has given written notice to the Client of its intention to suspend the carrying out of construction work under the Construction Contract.
    • if A1 suspends work, it:
      • is not in breach of Contract; and
      • is not liable for any loss or damage whatsoever suffered, or alleged to be suffered, by the Client or by any person claiming through the Client; and
      • is entitled to an extension of time to complete the Contract; and
      • keeps its rights under the Contract including the right to terminate the Contract; and may at any time lift the suspension, even if the amount has not been paid or an adjudicator’s determination has not been complied with.
    • if A1 exercises the right to suspend work, the exercise of that right does not:
      • affect any rights that would otherwise have been available to A1 under the Contract and Commercial Law Act 2017; or
      • enable the Client to exercise any rights that may otherwise have been available to the Client under that Act as a direct consequence of A1 suspending work under this provision;
    • due to any act or omission by the Client, the Client effectively precludes A1 from continuing the Works or performing or complying with A1’s obligations under this Contract, then without prejudice to A1’s other rights and remedies, A1 may suspend the Works immediately after serving on the Client a written notice specifying the payment default or the act, omission or default upon which the suspension of the Works is based. All costs and expenses incurred by A1 as a result of such suspension and recommencement shall be payable by the Client as if they were a variation.
    • If pursuant to any right conferred by this Contract, A1 suspends the Works and the default that led to that suspension continues un- remedied subject to clause 24.1 for at least ten (10) working days, A1 shall be entitled to terminate the Contract, in accordance with clause 24.

27. Service of Notices

  • Any written notice given under this Contract shall be deemed to have been given and received:
    • by handing the notice to the other party, in person; or
    • by leaving it at the address of the other party as stated in this Contract; or
    • by sending it by registered post to the address of the other party as stated in this Contract; or
    • if sent by email to the other party’s last known email address.
    • 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.

28. Trusts

  • If the Client at any time upon or subsequent to entering into the Contract is acting in the capacity of trustee of any trust (“Trust”) then whether or not A1 may have notice of the Trust, the Client covenants with A1 as follows:
    • the Contract extends to all rights of indemnity which the Client now or subsequently may have against the Trust and the trust fund; and
    • the Client has full and complete power and authority under the Trust to enter into the Contract and the provisions of the Trust do not purport to exclude or take away the right of indemnity of the Client against the Trust or the trust fund. The Client 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; and
    • the Client will not without consent in writing of A1 (A1 will not unreasonably withhold consent), cause, permit, or suffer to happen any of the following events:
      • the removal, replacement or retirement of the Client as trustee of the Trust; or
      • any alteration to or variation of the terms of the Trust; or
      • any advancement or distribution of capital of the Trust; or
      • any resettlement of the trust property.

29. General

  • Any dispute or difference arising as to the interpretation of these terms and conditions or as to any matter arising hereunder, shall be submitted to, and settled by, either adjudication in accordance with the Construction Contracts Act 2002 and/or by arbitration in accordance with the Arbitration Act 1996 or its replacement(s).
    • 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.
    • 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 Christchurch courts of New Zealand.
    • A1 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 A1 of these terms and conditions (alternatively A1’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Works).
    • A1 may licence and/or assign all or any part of its rights and/or obligations under this Contract without the Client’s consent.
    • The Client cannot licence or assign without the written approval of A1.
    • A1 may elect to subcontract out any part of the Works but shall not be relieved from any liability or obligation under this Contract by so doing. Furthermore, the Client agrees and understands that they have no authority to give any instruction to any of A1’s sub-contractors without the authority of A1.
    • The Client agrees that A1 may amend their general terms and conditions for subsequent future contracts with the Client by disclosing such to the Client in writing. These changes shall be deemed to take effect from the date on which the Client accepts such changes, or otherwise at such time as the Client makes a further request for A1 to provide Works to the Client.
    • Neither party shall be liable for any default due to any act of God, war, terrorism, pandemic, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.(referenced as Force-Majeure).
    • Both parties warrant that they have the power to enter into this Contract and have obtained all necessary authorisations to allow them to do so, they are not insolvent and that this Contract creates binding and valid legal obligations on them.