Terms of Trade

1.0 ACCEPTANCE

1.1 This quotation is open for acceptance for one month from the date given. Thereafter acceptance is subject to confirmation by Stuart Tarbotton Contractors Limited trading as Tarbotton Land and Civil (“the Company”).

1.2 The client acknowledges that its dealings with the Company are for business purposes.

1.3 The client warrants that all information provided to the Company is correct.

1.4 The client warrants that the signatories to this agreement are authorised to do so on behalf of the client.

2.0 CLIENT’S OBLIGATIONS

2.1 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 works from territorial or other authorities.
• Locating and definition of boundary lines and legal survey marks necessary for proper completion of the works.
• Locating all underground services including power, telephone and communication cables and water, gas, storm water and sewer pipelines in the area of the works.
• On Hourly Rate contracts directing and supervising the works.

2.2 The client agrees to pay in full all accounts when due.

2.3 Whilst all care will be taken the Company accepts no responsibility for damage to footpath crossings.

3.0 COMPANY’S OBLIGATIONS

3.1 The Company undertakes to complete the works detailed in the quotation in a competent workmanlike manner to construction industry normal standards.

3.2 The Company will take reasonable care to avoid damage to underground services and other property but shall not be liable for any damage to underground services which have not been located in advance of the work or have been incorrectly located.

3.3 In the event of unforeseen conditions or obstructions being encountered which may significantly increase the cost of the work the client shall be advised promptly. Pending instructions on the matter from the client and agreement on payment of any additional costs, the Company may at its discretion cease work on the site or, if practicable, continue to work around the area in question.

4.0 VARIATIONS

4.1 Any variation to a Fixed Price contract or to a lump sum item in an Hourly Rate or Unit Rate contract shall as soon as practicable be confirmed in writing and signed by a representative of the Company and by the client or their authorised agent. Failure by the client to sign the confirmation shall not invalidate the variation.

5.0 INCREASED COSTS

5.1 All quotes (other than the Fixed Price or Hourly/Unit Rate contracts) are based on current material, labour and freight costs, and when applicable, overseas exchange rates. Any subsequent increase or decrease in costs/rates shall be to the client’s account

6.0 WARRANTY

6.1 The Company shall make good any defects in the work of which it is notified in writing within three months of completion. Fair wear and tear work done on hourly rate or unit rates without the Company’s supervision and damage due to abnormal use are excluded. This Warranty is limited to the value of the work and excludes any consequential losses. This Warranty shall be void and have no effect if the client shall have failed without obtaining the prior consent in writing of the Company to make all progress and final payments on the due dates as agreed to and detailed in this quotation. This Warranty does not apply to any defective goods or materials not manufactured by the Company nor will any claim be available under the Warranty if the defective work has been modified or incorrectly maintained, installed or operated other than by the Company and that is the cause of the defect.

7.0 PAYMENT

7.1 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 ground for withholding payment.

7.2 Except where otherwise agreed in writing interest at the rate of 18% per annum 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.

7.3 In consideration of the Company agreeing to supply the services the Client charges in favour of the Company all its rights, title and interest in any Land owned by the Client either now or in the future, to secure performance by the Client of its obligations under these terms and conditions. The Company may register a caveat over the land pursuant to this clause.

7.4 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.

7.5 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 this Agreement by the Client.

8.0 RISK AND TITLE

8.1 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.

8.2 Until payment in full has been made:-

1. 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.
2. 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.
3. If the goods have been resold the client shall account as trustee to the Company for the proceeds of such resale.

9.0 EXCLUSION OF LIABILITY

9.1 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 service or goods at the discretion of the Company.

9.2 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.

9.3 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:

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

10.0 DISPUTES

10.1 Any dispute arising out of or in connection with this contract 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.

10.2 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.

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: Terms Conditions October 2020
Last updated: 30 October 2020