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Terms of Trade

1         Acceptance

1.1     Engaging the Contractor to carry out Work or acceptance of a Quote provided by the Contractor constitutes acceptance by the Client of these terms. These terms will apply to all services provided by the Contractor to the Client from time to time (unless otherwise agreed in writing).

1.2     The quote is valid for one month from date issued .

2         Contractor responsibilities

2.1     The Contractor will:

(a)     carry out the Work with reasonable skill and care, in accordance with the plans and specifications (if any), the Building Act 2004, the Building Code and any building consents issued in respect of the Work; and

(b)     comply with all health and safety legislation in carrying out the Work, including having all appropriate site documentation carried out and checked on a regular basis.

3         Client responsibilities

3.1     Unless otherwise agreed in writing, the Client is responsible for:

(a)     ensuring that all plans and specifications supplied to the Contractor in respect of the Works are accurate;

(b)     providing any materials, plant, and equipment required for the Work expressed to be ‘client supplied’ or ‘owner supplied’, and ensuring that such materials comply with the Building Code and are fit for purpose, and all plant and equipment complies with all health and safety legislation, codes and requirements;

(c)      surveying the Site and advising the Contractor of boundaries and the specific location of underground utilities;

(d)     ensuring that the Client has sufficient title or other legal entitlement to the Site to allow the Work to be carried out, and that the Contractor has sufficient access to the Site to carry out the Work;

(e)     advising the Contractor of any particular hazards relating to the Site, taking all practicable steps to ensure the Client’s own safety throughout the Work, and cooperating fully in implementing the Contractor’s health and safety policies, environmental policies and procedures, and obligations under the relevant health and safety legislation;

(f)      ensuring that the Client has sufficient funds or financing to meet its financial obligations when they fall due (and the Contractor may at any time—whether before or after the Start Date—require that proof of such funds or financing is provided); and

(g)     obtaining all necessary consents for the Work (including for any Variations) and for obtaining a code compliance certificate (if required) when the Work is complete. (To enable the Contractor to comply with its obligations above, the Contractor may require that the Client provides it with a copy of all necessary consents before commencing the Work or any Variation.)

4         Start Date and Completion Date

4.1     Subject to receiving sufficient access as set out above, the Contractor will commence the Work on the Start Date, and complete the Work by the Completion Date, in each case subject to any extensions of time to which it is entitled under clause 8.

5         Payment

5.1     Invoices will be submitted on certain milestones as set out in the Quote. If milestones or other payment schedules are not provided for in the Quote, the Contractor will issue invoices on a weekly/fortnightly/monthly basis. If the Work is delayed or suspended for any reason outside the Contractor’s control, it may render an invoice at the time a relevant milestone would otherwise have been achieved. Invoices are payable in full within 14 days of the invoice at issue.

5.2     Any amount which is not paid when due will incur interest at the rate of 2% per month compounding daily on the outstanding balance (both before or after any judgement, and in addition to any other rights and remedies). The Contractor also reserves the right to claim the costs of collecting any debt.

5.3     Any deposit paid by the Client shall be held by the Contractor and applied towards payment of the final invoice. If the final invoice is less than the deposit, the Contractor will refund the balance to the Client on issuing the final invoice. If the Quote provides for a deposit, and thedeposit is not paid ifull days before the Work is due to start, the Contractor may at its option and without further notice suspend and/or cancel the contract for the Work, and such suspension or cancellation is without prejudice to any other rights and remedies.

6         Variations

6.1     The Client may request variations to the Work. With the exception of the Variations set out in clause 6.3, all variations must be in writing, signed by both parties and contain the following:

(a)     a description of the work required under the Variation;

(b)     any required amendments to the consents as issued or any additional approvals, consents or licences that will be required;

(c)      any agreed adjustment to the Contract Price and/or the Completion Date for the Work.

6.2     Unless otherwise agreed, the Client may not request a Variation omitting or reducing the Work to be performed.

6.3     The Contractor is entitled to claim a Variation for:

(a)     any emergency works required for health and safety or environmental reasons;

(b)     additional work and/or changes to the Work caused by any consent requirements;

(c)      unforeseen physical conditions, substitutions of any materials, wages and price changes; or

(d)     any increase in costs arising from a failure or delay on the Client’s part in complying with these terms.

No allowances have been made in the Contract Price for the handling of hazardous substances (including asbestos), and the Contractor is also entitled to claim a Variation for any such costs.

6.4     All Variations claimed under clause 6.3 shall be calculated at the hourly rate set out in the Quote (and if no rate is stated, then Contractor shall charge no more than $75 per hour), the cost of all materials, plus a margin of 15%.

7       Subcontractors

7.1   The Contractor may sublet the whole or any portion of the Work. The Contractor will be responsible for all work of its subcontractors and for ensuring that subcontractors have appropriate insurance in place.

8         Delay and extensions of time

8.1     The Contractor shall not be liable for any delay in carrying out the Work due directly or indirectlto circumstances reasonably outside its control, includindisputes witsubcontractors, bad weather, force majeure, accidents, fire, shortage of labour and/ormaterials, labour disputes, variations, failure of suppliers to deliver, or acts of any government, territorial authority, or similar body.

8.2     If any of the reasons stated in clause 8.1 necessitate an extension of the Completion Date, or any other reason beyond the Contractor’s reasonable control necessitates an extension, the Contractor shall provide written notice to the Client of any such extension reasonably promptly after the delay becomes apparent, together with details of the new Completion Date.

9       Insurance

9.1   The Client is responsible for insuring the Work (and the Contractor may at any time require that proof of such insurance is provided). The Contractor will arrange public liability insurance up to $10 Million against liability for loss or damage to any property, or injury or death or illness which arises from carrying out the Work.

10      Defects Warranty

10.1  Any defect in the Work which Client notifies the Contractor of within 45 days after Practical Completion, or within 12 months of completion of the Work if section 362Q of the Building Act 2004 applies to the contract, shall be rectified by the Contactor at the Contractor’s expense within a reasonable time. Client’s notice must be sufficiently detailed to clearly identify what Work the Client claims is defective. The Client must give the Contractor a reasonable opportunity to rectify any defects the Client identifies and shall not engage anyone else to rectify the defects until a reasonable time has elapsed and the Client has given the Contractor at least 20 Working Days notice of the Client’s intention to engage someone else. If the Client engages someone else to rectify the defects when the Client is not entitled to do so, then without prejudice to the Contractor’s other rights and remedies:

(a)     the Contractor shall be entitled to cancel the contract;

(b)     the Contractor shall not be obligated to provide any information or documentation or take any other action necessary to enable a Code Compliance Certificate to be issued in respect of the Works; and

(c)      the Contractor stall be immediately discharged from any further obligation or liability in respect to the Work.

10.2  The Contractor is not liable for any defect within reasonable tolerances, failure to achieve standards of finish or detail beyond what is required by the contract (subject to consents and Variations) and for any defect caused by or arising out of the actions of any person outside the Contractor’s control, fair wear and tear, or failure by the Client to maintain the Work.

10.3  Where the Contractor installs pre-used or second hand material, whether supplied by the Client or by the Contractor, the Client acknowledges that it had full opportunity to inspect the same and accepts the material with all faults. The Client acknowledges that the Contractor makes no warranty as to the material’s quality or suitability for any purpose unless specifically stated in writing, and the Contractor expressly disclaims any implied warranty, statutory or otherwise.

10.4  These terms do not limit the implied warranties as set out in s362I to s362K of the Building Act 2004.

11      Suspension and termination

11.1  The Contractor may suspend the Work by notice if the Client defaults in any of its obligations under these terms, including failing or refusing to pay any invoiced amount in full by the due date for its payment. Such suspension is without prejudice to any other right to which the Contractor might be entitled.

11.2  The Contractor may terminate its obligations under these terms if at any time the Client becomes bankrupt, goes into liquidation, or has a receiver or statutory manager appointed, or defaults in its obligations under these terms and does not remedy that default within 5 Working Days of receiving a notice requiring remedy.

12      Business Transactions

12.1     If the Work is to be carried out for the purposes of a business, then to the maximum extent permitted by the law, all guarantees, warranties, rights, or remedies implies by the Consumer Guarantees Act 1993, the Fair Trading Act 1986 and other guarantees, warranties, or provisions that would otherwise be implied by statute or rule of law are expressly excluded.

13      Contractor’s Property on Site

13.1  The Client acknowledges that:

(a)     the legal, equitable and beneficial ownership and title to any plant, equipment, or materials brought onto the Site by the Contractor remains vested in the Contractor at all times; and

(b)     title in all materials supplied as part of the Work remains vested in the Contractor until all amounts owing to the Contractor have been paid in full.

13.2  To secure such obligations, for the purposes of the Personal Property Securities Act 1999 (PPSA), the Client agrees that a security interest is granted in the property described in clause 13.1 (and all proceeds of that property). The Contractor may apply all of the Owner’s payments in a manner most desirable to preserve any purchase money security interest in that property. The Client agrees that nothing in ss116, 120(2), 121, 125 to 127, 129, 131, 133 and 134 of the PPSA applies, and waives the right to receive a verification statement of any security interest.

14      Signage

14.1  The Client agrees that the Contractor has the right to erect signage on the Site advertising itself during the period of the Work.

15    Notices

15.1  All notices are to be in writing and hand delivered or sent by post or email to the addresses set out in the Quote. The address for service and postal address for the Contractor is the physical address set out in the Quote.

15.2  notice is deemed to be received:

(a)     if personally delivered, when delivered; or

(b)     if posted, 5 Working Days after posting; or

(c)      if sent by fax, on production of a transmission report (by the machine from which the fax was sent) that indicates that the fax was sent in its entirety; or

(d)     if sent by email, when the email leaves the sender’s communications system, provided that the sender:

(i)       does not receive any error message relating to the sending of the email; or

(ii)    receives confirmation that the email was delivered (which may include an automated delivery receipt from the recipient’s communications system).

15.3  Despite clause 15.2, any notice received after 5pm, or received on a day that is not a Working Day, is deemed not to have been received until 9am on the next Working Day.

16      Dispute Resolution

16.1  If there is any dispute relating to these terms or the Work, the partraising the dispute must give the other party written noticespecifying particulars of the dispute.

16.2  If negotiations between the parties do not resolve the dispute, either party may refer a dispute to adjudication under the Construction Contracts Act 2002 for settlement through the association’s disputes procedure or bring a claim before the Disputes Tribunal or the High Court, as appropriate.

17      Definitions

In these terms:

Client means the person(s) stated as the Client(s) in the Quote.

Completion Date means the expected date on which the Contractor reasonably believes the Work will be completed, subject to extensions of time, as stated in the Quote.

Contractor means HyPower Electrical Limited.

Contract Price means the price for the Work stated in accordance with the Quote, subject to adjustments under these terms.

Including does not imply limitation.

Practical Completion means both the point in time, and the stage in the progression of the Work, when the Work is so far advanced that the Site can effectively be used by the Client for its intended purpose, notwithstanding that certain non-critical or aesthetic features are yet to be completed or minor omissions or defects are yet to be rectified.

Quote means the letter provided by the Contractor to the Client describing the scope of the Work and which both parties signed.

Site means the site address at which the Work is to be carried out, as stated in the Quote.

Start Date means the expected start date at which the Contractor reasonably believes physical work will commence on Site, as stated in the Quote.

Variation means a variation to the Works under section 6.

Work means the construction work stated in the Quote (subject to consents and Variations) at the Site.

Working Day has the meaning given in the Construction Contracts Act 2002.