Terms of Trade

The following conditions apply to all Services provided by the Company

Company means Stuart Tarbotton Contractors Limited trading as Tarbotton Land and Civil.

Client means the business or person who requests the Services (including the Directors/Trustees of any Client).

Due Date means the date specified on the invoice on which payment must be made in full.

Services means contracting services to be carried out by the Company as requested by the Client and set out in the quotation or estimate.

1.0 TERMS OF AGREEMENT

1.1 All Services provided by the Company are subject to these Conditions and shall be read in conjunction with any quotation, schedule of rates, correspondence or any other forms as provided by the Company in connection with the Services.

1.2 The Client warrants that it has the authority to instruct the Company to complete the Services and accept any quotations provided.

1.3 If the Client is a company, trust or partnership, the directors, trustees or parters of the Client agree jointly and severally to personally guarantee the Client’s obligations of these Terms of Trade.

1.4 The Client acknowledges that its dealings with the Company are for business or trade purposes.

1.5 All prices and rates are exclusive of Goods and Services Tax unless agreed in writing otherwise.

2.0 ACCEPTANCE

2.1 All quotations provided are open for acceptance for one calendar month from the date of the quotation. Thereafter, acceptance is subject to written confirmation by the Company.

2.2 The contract is formed on the acceptance of the quotation or where required, on receipt of written confirmation in accordance with clause 2.1, and the Client agrees to be bound by these Terms of Trade and any amendments to these Terms of Trade as made by the Company from time to time.

3.0 CLIENT OBLIGATIONS

3.1 Unless stated in the quotation or otherwise agreed in writing, the Client shall be responsible for:

• Obtaining all consents and permits required in connection with the services set out in the quotation from territorial or other authorities.
• Location and definition of boundary lines and legal survey marks necessary for proper completion of the Services.
• Locating all underground services including power, telephone, fibre and communication cables and water, gas, stormwater and sewer pipelines in the area of the Services.
• Where required, the lighting of any fires on the property and all liability for doing so.
  

3.2 The Client warrants that all underground infrastructure to the property will be disabled prior to the commencement of the Services.

3.3 The Client agrees to pay all accounts in full on the due date.

4.0 COMPANY'S OBLIGATIONS

4.1 The Company warrants to complete the Services in a competent workmanlike manner in accordance with the normal standards of the construction industry.

4.2 The Company will take reasonably care to avoid damage to the underground services and other property but shall not be liable for any damage to any underground services that have not been located in advance of the commencement of the Services or that have been incorrectly located.

4.3 In the event of unforeseen conditions or obstructions being encountered which may significantly increase the cost of the Services, the Client shall be advised as soon a practicable. Where possible, the Company shall provide and estimate of the additional costs to the Client and pending instructions on the matter from the Client and agreement on payment of any additional costs, the Company may at its sole discretion cease work on the property or, if practicable, continue to work around the area in question.

5.0 INFORMATION

5.1 The Client warrants that all information provided to the Company is correct and may be used by the Company to complete all work set out in the quotation and any related purpose including debt collection and marketing. The Client acknowledges that any additional costs caused by any inaccuracy or misinformation provided by the Client shall be borne by the Client in addition to the amount provided in the quotation.

6.0 VARIATIONS

6.1 The Company shall notify the Client of variaiton to a fixed price contract or to a lump sum item in an hourly rate or unit rate contract as soon as practicable.

6.2 Failure by the Client to acknowledge receipt of the variation or confirm acceptance of the variaiton shall not invalidate the variation.

7.0 INCREASED COSTS

7.1 All quotations (other than the Fixed Price or Hourly/Unit Rate contracts) are based on material, labour and freight costs, and when applicable, overseas exchange rates at the date of the quotation. Any subsequent increase in costs/rates prior to the completion of the Services shall be charged to the Client.

8.0 WARRANTY

8.1 The Company shall make good any defects in the work which it is notified of in writing within three months of completion of the Services, except where the defect is due to fair wear and tear or damage which is due to abnormal use. This warranty is limited to the value of the Services and excludes any consequential loss. The Company shall not be required to remedy any defects if the Client fails, without obtaining prior written consent of the Company, to make all progress and final payments on the due dates.

8.2 The Company shall not be liable to the Client for any defective goods or materials used which are not manufactured by the Company.

8.3 The Company shall not be liable to the Client if the defective work has been modified or incorrectly maintained, installed or operated by any person other than the Company.

9.0 PAYMENT

9.1 All progress payments shall be due monthly for plant hire and for work done. Unless otherwise agreed in writing all payments shall be due on the 20th of the month following the date of invoice, without deduction. Any dispute regarding the amount due or outstanding maintenance shall not be grounds for withholding payment or any part thereof.

9.2 Except where otherwise agreed in writing interest at the rate of 24% per annum calculated on a daily basis shall be payable by the Client on all overdue accounts from the due date for payment until payment is received by the Company. These charges shall be compounded to the principal debt at the end of each month of default and shall accrue in the same manner after judgment. Payments must be made notwithstanding that maintenance/remedial works may be required. All costs, including collection charges and legal fees (being full solicitor/client costs) incurred in connection with overdue accounts shall be payable by the client.

9.3 In consideration of the Company agreeing to complete the Services, the Client charges in favour of the Company all its rights, title and interest in any Land owned by the Client eithe rnow or in the future, to secure performance by the Client of its obligations under theses terms and conditions. The Client grants the Company the right to register a caveat over the Land pursuant to this clause.

9.4 The Client acknowledges and agrees to pay all the Company’s costs (including legal costs on a solicitor/client basis) incurred by the Company, in connection with any default by the Client or enforcement action taken by the Company.

9.5 The Client indemnifies the Company from and against all costs incurred by the Company in undertaking the work, including any costs which result from a breach of any term of these Terms of Trade by the Client.

10.0 RISK AND TITLE

10.1 The risk in any goods supplied shall pass to the Client on delivery but ownership in them shall not pass until the Client has paid for the goods in full.

10.2 Until payment in full has been made:-

• Any goods supplied will be held by the Client as the Company’s bailee, and if directed by the Company, will be stored and identified so that it is clear that they are the property of the Company.
• The Company, its employees and agents may without notice enter any property occupied by the Client to search for, disconnect, and remove any goods supplied.
• If the goods have been resold the Client shall account as trustee to the Company for the proceeds of such resale.

11.0 EXLUSION OF LIABILITY

11.1 To the fullest extent permitted by law, the liability of the Company for any loss, damage or injury arising directly or indirectly from any act or omission in providing a service, or any defect or non-compliance of goods supplied is limited to the replacement or repair of damage not exceeding the invoice value of the Works at the discretion of the Company.

11.2 In no case shall the Company be liable for loss of profits or opportunity or any other consequential damage or loss to the client howsoever arising whether in contract or in tort.

11.3 The Company is not liable, and the Client will have no right to cancel the contract for any failure in the Company’s obligation to a Client by reason of circumstances beyond the Company’s control including but without limitation:

• Strike, lock out, or labour disturbance.
• Failure or delays by suppliers or subcontractors.
• Fire, earthquakes, flood, pandemic, similar natural disaster or civil emergencies.
• Hostilities, commotions or similar civil strife.

12.0 DISPUTES

12.1 If a dispute arises between the parties concerning the contract neither party may start proceedings relating to the dispute (unless that party seeks urgent interlocutory relief) without first complying with this section.

12.2 A party claiming that a dispute has arised concerning the contract must give written notice to the other parties specifying the matter in dispute.

12.3 After a party has given notice under clause 12.2, each party must nominate one person who will have authority to settle the dispute. The nominated persons must try in good faith to resolve the dispute within ten (10) working days of their nomination.

12.4 If the dispute is not resolved under clause 12.3, the parties will have ten (10) working days to agree on the appointment of a mediator. If the parties cannot agree on the appointment of a mediator, a mediator will be appointed by the President of the New Zealand Law Society or his or her delegate. Mediation must be held within 20 working days of the appointment of the mediator.

12.5 If the parties are unable to resolve the dispute at mediation under clause 12.4, the matter shall be referred to arbitration under the Arbitration Act 1996. The reference shall be to a sole arbitrator who shall be appointed at the request of either party by the President of the Arbitrators & Mediators Institute of New Zealand.

12.6 Any objection to the enforceability of this arbitration provision on the grounds that the client is a consumer as defined in Section 11 of the Arbitration Act 1996 shall be made in writing to the Company within 14 days of receipt of notice requiring a dispute be referred to arbitration.

13.0 GENERAL

13.1 The failure by the Company to enforce any provision of these Terms of Trade shall not be treated as a waiver of that provision, nor shall it affect the Company’s right to subsequently enforce that provision.

13.2 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.

13.3 The Company may license or subcontract all or any part of its rights and obligations without the Client’s consent. The Client agrees and understands that they have no authroiuty to give any instruction to any of the Company’s subcontractors wihtout the authority of the Company.

13.4 Without prejudice to the Company’s other remedies at law, the Company shall be entitled to cancel all or any part of a quotation which remains unperformed. All amounts owing to the Company shall, whether or not due for payment, become immediately payable in any of the following events:

• Any money payable to the Company becomes overdue;
• The Client becomes insolvent; or
• A receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.

13.5 The Client and the Company acknowledge that each party has obligations under the Health and Safety at Work Act 2015. The Client agrees to inform the Company of all relevant hazards on site, prior to the commencement of work, and will provide ongoing disclosure of such hazards should furhter hazards become identifiable whilst the Company is performing the Services on site. The Client agrees to indemnify the Company against any Health and Safety claims which arise due to the negligence and/or non disclosure of information from the Client.

EXPLANATORY NOTES

Goods & Service Tax

All sums and rates stated in the quotation are exclusive of Goods & Services Tax. G.S.T. is payable on all invoices.

Fixed Price Quotations

A Fixed Price quotation is an offer to complete the work described for the price stated. If there is a variation to the work, the cost of additions shall be added to the Fixed Price and the value of any deletions shall be deducted from the Fixed Price.

Hourly Rate Quotations

An hourly rate quotation is an offer to provide plant manpower and materials at the rates stated. It is not a Fixed Price offer, and any total on the quotation is an estimate only calculated from the anticipated hours and quantities which may be required. Payment will be due at the respective rates for the actual hours worked and quantities supplied.

Unit Rate Quotations

A Unit Rate quotation is an offer to execute the work described at the rated stated. Payment will be due at the stated rates for the measured Quantity of work completed. Any total on the quotation is an estimate only and is not a Fixed Price offer.

Reference Document: LED-009710-52-17-1
Last updated: 3rd October 2022