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Terms of Trade

Contractor responsibilities1.1	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.

Client responsibilities2.1	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.)

Start Date and Completion Date3.1	Subject to receiving sufficient access and any necessary consents having been obtained by the Client 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 7.

Payment4.1	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. 4.2	Notwithstanding clause 4.1, agreed Variations in accordance with clause 5 may be invoiced at any time or added to a relevant milestone payment, at the sole discretion of the Contractor.4.3	Invoices are payable in full within 14 days of the date of the invoice. 4.4	If the Contractor’s invoice is accompanied by a payment claim made under the CCA, then any payment schedule as defined in Schedule 5 of that Act must be provided to the Contractor within 5 Working Days of the payment claim being served on the Client. 4.5	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. 4.6	Any deposit paid by the Client shall be held by the Contractor and applied towards payment of the final invoice or as provided by clause 10.3. 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 the deposit is not paid in full 7 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. The Contractor shall be entitled to claim any costs it incurs as a result of any suspension or termination pursuant to this clause 4.6. 

Variations5.1	The Client may request variations to the Work. With the exception of the Variations set out in clause 5.3(a), prior to the Variations being undertaken by the Contractor, 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)	the agreed adjustment to the Contract Price and the Completion Date for the Work.5.2	Unless otherwise agreed by the Contractor, the Client may not request a Variation omitting or reducing the Work to be performed.5.3	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. 5.4	Unless the parties agree a fixed cost of a Variation and record such agreement in accordance with clause 5.1, all Variations claimed under clause 5.3 shall be calculated at the hourly rate set out in the Quote (and if no rate is stated, then Contractor shall change no more than $75 per hour), the cost of all materials, plus a margin of 15%.5.5	The Contractor is not obliged to carry out any variation works until the cost and impact of that variation is agreed pursuant to this clause 5. 

Subcontractors 6.1	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.

Delay and extensions of time7.1	The Contractor shall not be liable for any delay in carrying out the Work due directly or indirectly to circumstances reasonably outside its control, including loss or damage to the Works other than loss or damage caused by the Contractor’s breach of its obligations under these terms, failure of the Client to given timely directions, unforeseen physical conditions, the Contractor validly exercising its right to suspend Works under clause 10, acts, omissions or default by the Client or a subcontractor,  disputes with subcontractors, bad weather, force majeure events, accidents, fire, shortage of labour and/or materials, labour disputes, variations, failure of suppliers to deliver, or acts of any government, territorial authority, or similar body.7.2	The Contractor shall provide written notice to the Client of any necessary extension as soon as reasonable practicable after the delay becomes apparent, together with details of the new Completion Date.

Insurance8.1	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.

Defects Warranty9.1	Any defect in the Work which the Client notifies to the Contractor 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. The Client’s notice of any defect must be sufficiently detailed to clearly identify what Work the Client claims is defective. 9.2	In this clause 9, a “defect” means any fault or flaw in the Works which is sufficient to constitute a breach of the Contractor’s obligations under clause 1.1 of this contract or if section 362Q of the Building Act 2004 applies, any implied warranties or guarantees, and “rectified” means remedied, re-done, fixed or completed so that the relevant item complies with those obligations. Defects do not include: (a)	Mere cosmetic blemishes, imperfections, or trivial faults or flaws that are within the tolerances normally regarded as acceptable according to common trade practice. (b)	Any failure to achieve standards of finish or detail that are beyond what is required by the Quote (subject to consents and  Variations). (c)	Any fault or flaw that is attributable to any event or occurrence beyond the Contractor’s reasonable control or the acts or omissions of anyone for whom the Contractor is not responsible. (d)	Any fault or flaw that is attributable to fair wear and tear, or any failure by the Client to adequately maintain, preserve, protect and care for the Works. 9.3	The Client must give the Contractor a reasonable opportunity to rectify any defects that are notified in accordance with clause 9.1 and must 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 and this Contract. 9.4	The Contractor does not warrant any works carried out by 3rd parties pursuant to clause 9.3. 9.5	Any period during which the Works are suspended as a consequence of the Client’s default will not be counted when calculating what is a reasonable time for rectification and any such suspension must not be construed as a permanent and unequivocal abandonment. 9.6	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.9.7	These terms do not limit the implied warranties as set out in s362I to s362K of the Building Act 2004, to the extent they apply to the works pursuant to section 362Q of the Building Act 2004

Suspension and termination10.1	The Contractor may suspend the Work (by notice to the Client) 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.10.2	The Contractor may terminate its obligations under these terms by notice to the Client 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. 10.3	If the Contractor terminates its obligations under these terms in accordance with clause 10.2 or if the Client has failed to comply with of the Client’s obligations under this Contract then without prejudice to the Contractor’s other rights and remedies the Contract may apply the deposit paid by the Client in payment of any damages, costs, interest or other sums to which the Contractor is entitled. 

Business Transactions11.1	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.

Contractor’s Property on Site12.1	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.12.2	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 12.1 (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.

Signage13.1	The Client agrees that the Contractor has the right to erect signage on the Site advertising itself during the period of the Work.

Notices14.1	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. 14.2	A 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 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).14.3	Despite clause 14.2, 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.

Dispute Resolution15.1	If there is any dispute relating to these terms or the Work, the party raising the dispute must give the other party written notice specifying particulars of the dispute.15.2	As soon as reasonably practicable after the dispute has arisen, the Parties shall meet or otherwise communicate with each other and attempt to resolve the dispute in good faith through negotiation. 15.3	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.

DefinitionsIn these terms:Building Code means the Code set out in Schedule 1 of the Building Regulations 1992 or any equivalent set of rules and requirements that are adopted in substitution for that Schedule. 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 at the time the Contractor signs the Quote, the Work will be completed, subject to extensions of time, as stated in the Quote.CCA means the Construction Contracts Act 2002.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 5.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.