Terms Of Trade
1.1 “Service Provider” shall mean Wellington Drainage, its successors, agents, contractors, and employees hereof.
1.2 “Client” shall mean any limited liability company, trustee, partnership, individual or any person acting on behalf of and with authority of the client, as described on any quotation, work authorisation or other form as provided by the Service Provider to the Client
1.3 “Good and Services” shall mean Goods and Services supplied by the Service Provider to the Client (and where the context so permits shall include any supply of Services as hereinafter defined) and includes Goods and Services described on any invoices, quotation, work authorisation, or any other forms as provided by the Service Provider to the Client.
1.4 “Services” shall mean all services supplied by the Service Provider to the Client and includes any advice or recommendations (and where the context so permits shall include any supply of Goods and Services as defined in sub-clause 1.3 of this Agreement.
1.5 “Price” shall mean the price payable for the Goods and Services as agreed between the Service Provider and Client in accordance clause 3 of this agreement.
1.6 “Service Call” shall mean a visit to the Client’s site or work carried out on the client’s equipment, and is chargeable at the current hourly rate, with a minimum charge being two hours plus mileage.
1.7 “Outside Hours Service Call” shall mean the same meaning as a Service Call, with a minimum charge being four hours plus mileage for such calls that fall outside the hours of 0600 to 1700 Monday to Friday.
2.1 Any instructions received by the Service Provider from the Client, for the supply of Goods and Services, and/or the Clients acceptance of Goods and Services supplied by the Service Provider; shall constitute acceptance of the terms and conditions contain herein, including any Goods and Services.
2.2 In the event of this agreement being entered by more than one Client, then the Clients will be held jointly and severally liable for all payments of the Price.
2.3 Upon acceptance of these terms and conditions by the Client the terms and conditions are binding and can only be amended with written consent of the Service Provider.
2.4 Any product or service not written on the invoice is not included in the invoiced price, whether implied or referred to in oral statement or not.
2.5 In the event of a change of ownership occurring with the Client, the Client shall give the Service Provider not less than fourteen (14) days prior written notice of any proposed ownership of the Client, or any change in the Clients name and/or any other change in the Clients details (including but not limited to; changes in physical address, address for notices, email addresses, facsimile number, or business practice. The Client shall be liable for any loss incurred by the Service Provider as a result of the Clients failure to comply with this clause.
3.0 Price and Payment
3.1 At the Service Provider’s sole discretion the Price shall be either:
a) as indicated on invoices provided by the Service Provider to the Client in respect of Goods and Services supplied; or the Service provider’s quoted price (subject to clause 3.2 in these terms and conditions) which shall be binding upon the Service Provider, provided that the Client shall accept the Service;
b)a quotation in writing by the quoted validity date, or within five (5) if the validity date is not specified in the quote document.
3.2 Upon acceptance of quotes, a 50% deposit is required to be paid prior to commencement of works.
3.3 All quoted works are subject to variations as required and are at the discretion of Wellington Drainage in order to carry out and complete works to New Zealand Standards. All variations will incur further fees and charges in addition to the quoted amount.
3.4 The client agrees to make progress payments as requested. Failure to do so may result in the Service Provider cancelling all further works until such time, progress payments are paid.
3.5 Time for payment for the Goods and Services supplied by the Service Provider to the Client shall be of the essence and will be stated on the invoice or any other forms. If no time is stated then payment shall be due in completion or the date of the invoice (whichever is earliest).
3.6 All invoices and any other communications (whether physical or electronic) will be deemed to have been delivered if they have been sent to the Clients current address for notices (whether physical, postal, or electronic) as per clause 2.5 in this agreement.
3.7 Payment will be made by cash, bank cheque, or by credit card only. Any other method must be expressed in written form made agreed between the Client and Service Provider. Client provides permission to carry out transactions over the phone using credit card details provided for the value of the invoice amount or as per payment arrangement i.e. deposit or progress payments. Payments made by credit card are at the sole discretion of the Service Provider and will incur an additional fee of two percent (2%) of the total invoice price.
3.8 All invoices that are provided from the Service Provider to the Client, shall be provided in categories of labour, materials, and GST only. Itemized accounts will only be issued at the sole discretion of the Service Provider.
4.0 Title of Goods
4.1 The Service Provider and Client agree that ownership of the Goods and Services shall not pass until:
- a) all outstanding invoices for the particular Goods and Services have been paid by the client; and
- b) all other obligations on the behalf of the Client to the Service Provider have been met.
4.2 Receipt by the Service Provider 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, and until then the Service Provider’s ownership or rights in respect of the Goods and Services shall continue.
5.1 Warranty shall be valid for twelve (12) months (unless otherwise stated) from invoice date. Warranty shall only be valid on exact location and works as carried out by the Service Provider. The Client must provide an original invoice for proof of works.
5.2 All valve and valve type parts as well as any specified items installed by the Service Provider must be serviced annually by the Service Provider. Failure to do so shall void warranty. While the Service Provider will attempt to arrange this with the Client, the Client has sole responsibility to arrange an appointment with the Service Provider.
5.3 The Client shall inspect the goods and services on completion and must report any defects to parts or installation of works within forty-eight (48) hours in writing to the Service Provider of any alleged defects, shortage in quantity, or damage. The Client shall afford the Service Provider an opportunity to inspect the alleged damage / defect within seven (7) days from the date of written notification and give the Service Provider the opportunity to make good to New Zealand and other reasonable standards within fourteen (14) working days.
5.4 No warranty shall be provided on blocked sewer(s), drainage, or storm water as set out at clause 9.1 in this agreement
5.5 For Goods not manufactured by the Service Provider, the warranty shall be the current warranty provided by the manufacturer of the Goods. The Service Provider shall not be bound nor responsible for any term, condition, representation, or warranty other than that which is given by the manufacturer of the Goods. Standard warranties are “Parts Only” with labour chargeable as a Service Call, unless the warranty specifies “On-Site Parts & Labour Warranty”. If the Client claim is not accepted by the manufacturer, the Service Provider has no liability and can invoice for labour & disbursements.
5.6 Warranty is limited to the Goods supplied by the Service Provider, and does not cover any system the Goods may be installed on or associated with.
6.0 Intellectual Property
6.1 Where the Service Provider have designed or drawn Goods for the Client, then the copyright in those designs & drawings shall remain vested with the Service Provider, and only used by the Client at the Service Provider’s sole discretion and written consent to do so.
7.0 Underground Services
7.1 The Client will indemnify the Service Provider and keep the Service Provider indemnified against liability, loss, claim, or proceedings of any kind (whether arising in statue or common law) arising from services which are buried or unseen being disturbed or damaged. The Service Provider will not be liable for any repair work and any repair work required will be paid at the Clients expense. Such liability, loss, claims, or proceedings includes but is not limited to:
- a) Damage to the property, real or personal; or
- b) Death or personal injury; and/ or
- c) Consequential or economic loss of any kind.
8.0 Rock and Filled Ground
8.1 Unless specifically included in written quotes and/or estimates, rock excavation, dewatering or supportive work such as pier and beams for filled or made up ground will be charged out as a variation to the original price. Quotation is based on excavation of clean soils only, unless otherwise specifically stated in writing.
8.2 Existing soils shall be returned to excavate areas where possible and ground shall left filled. Landscaping and concrete works are not included in quotes unless specified in writing. All concrete, paving, and landscape works including/ shrub/ plant and lawn replacement will be treated as a variation as set out in clause 3.3 of this agreement.
9.0 Drains and Sewer
9.1 The Client understands that the presence of plant/ tree growth and/ or blockages generally indicates damaged pipes. Additionally the Client agrees that blocked drains, sewer pipes, and storm water lines cannot be permanently fixed by simply removing “plant/ tree root growth” or cleaning the drain. Therefore, no warranty is provided in relation to future blockages regardless of time frame reoccurring whether in the same location or other drainage/ sewer lines within the same property.
9.2 The Client acknowledges that Close Circuit Television (“CCTV”) is a specialist piece of equipment which may or may not be used at the Service Providers sole discretion, in an attempt to identify the source of the blocked drain. Should CCTV equipment be used, the Client acknowledges that additional charges will be imposed.
9.3 Should any Plumber’s equipment become lodged or damaged in the customers drain it will be removed and/ or replaced at the Clients expense (includes materials, parts, and labour) or monetary compensation to the total replacement of same or higher quality value will become payable to the Service Provider immediately.
10.1 The Service Provider may cancel these terms & conditions or cancel delivery of goods and services at any time, by giving twenty four (24) hours written advice. The Service Provider will not be liable for any loss or damage what-so-ever arising from such cancellation
10.2 The Client must provide the Service Provider with at least three (3) working days’ notice in writing of any cancellation of works. Failure to do so will incur a thirty (30) percent payment on the original quoted/ invoice amount payable by the Client.
10.3 Placing a deposit with the Service Provider secures and confirms works to be completed for the Client. Where a deposit has been paid to the Service Provider, these are non-refundable.
11.0 Client’s Disclaimer
11.1 The Client hereby disclaims any right to rescind, or cancel this agreement or any other agreement they have with the Service Provider or to sue for damages or to claim restitution arising out of any misrepresentation made to the Client by the Service Provider, and the Client acknowledges that the Goods and Services are bought relying solely upon the Client’s own skill and judgement.
11.2 The Service Provider shall not be liable for any consequences, indirect or special loss or damage in any materials or labour in any Goods and Services supplied. Unless Insurance is specifically quoted as a separate service and invoiced as such, then the Service Provider carries no responsibility or loss, theft, burglary, or damage in any circumstance. Insurance is the Client’s responsibility; the Service Provider offers no cover on the Client’s goods.
12.0 Personal Property Securities Act 1999 (“PPSA”)
12.1 Upon assenting to this agreement the Client agrees and acknowledges that:
- a) this agreement further constitutes a security agreement for the purposes of the PPSA; and
- b) security interest is taken in all Goods and Services previously supplied by the Service Provider to the Client (if any) and all Goods and Services that will be supplied in the future by the Service Provider to the Client.
12.2 The Client undertakes to:
- a) sign any further documents and/or provide further information (such information to be complete, accurate, and up-to-date in all respects) which the Service Provider may reasonably require to register a financing statement or financing change statement on the Personal Property Register;
- b) indemnify, and upon demand reimburse, the Service Provider for all expenses incurred inregistering a financing statement or financing change statement on the Personal Properties Securities Register or releasing any Goods and Services charged thereby; and
- c) not register a financing change statement or change demand without prior written consent of the Service Provider;
12.3 The Service Provider and the Client agree that nothing in sections 114(1)(a), 133, and 134 of the PPSR shall apply in this agreement.
12.4 The Client waives its rights as a debtor under sections 116, 120(1), 125, 126, 127, 129, 131, and of the PPSA.
12.5 Unless otherwise agreed to in writing by the Service Provider, the Client waives its right to receive a verification statement in accordance with section 148 of the PPSA.
12.6 The Client shall unconditionally ratify any actions taken by the Service Provider under clauses12.1 to 12.5 in this agreement.
13.0 Default & Consequences of Default
13.1 Interest on overdue invoices shall compound weekly from the date of the invoice at a rate of 2.5%.
13.2 If the Client defaults in payment of any invoice when due, the Client shall indemnify the Service Provider from and against all costs, including legal and collection, incurred by the Service Provider in pursuing the debt. In addition, any discounts offered at the time of invoice will be null and void.
13.3 Without prejudice to any other remedies the Service Provider may have, if at any time the Client is at breach of any obligation (including those related to payment), the Service Provider may suspend or terminate supply of Goods and Services to the Client and any of its obligations in this agreement. The Service Provider will not be liable to the Client for any loss or damage the Client suffers because the Service Provider has exercised its rights under this clause.
13.4 Without prejudice to the Service Provider’s other remedies in law, the Service Provider shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts to owing to the Service Provider, whether or not due for payment may become immediately payable in the event that:
- a) any money payable to the Service Provider becomes overdue, or in the Service Provider’s opinion will be unable to meet its payments as they fall due; or
- b) the Client becomes insolvent, 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
- c) a receiver, manager, liquidator (provisional or otherwise) or similar position is appointed in respect of the Client or any asset of the Client.
14.0 Dispute Resolution
14.1 If a dispute arises between the parties to this contract, then either party shall send to the other party a notice of dispute in writing adequately identifying and providing details of the dispute. Within seven (7) days after service of notice of dispute, the parties shall confer at least once, to attempt to resolve the dispute.
14.2 At any such conference each party shall be represented by a person having authority to agree to a resolution of the dispute. In the event that the dispute cannot be so resolved either party may by further notice in writing delivered or sent by certified mail to the other party, refer such dispute to arbitration.
14.3 Any arbitration shall be referred to consumer affairs.
15.0 Compliance with Laws
15.1 The Client and the Service Provider shall comply with the provisions of all statues, regulations, and by-laws of government, local, and other public authorisation that may be applicable to the works.
15.2 The Client shall obtain (at the expense of the Client) all licenses and approvals that may be required for the works (councils or other government agents).
15.3 The Client agrees that the site will comply with any occupational health and safety laws relating to building / construction sites and any other standards or legislation.
16.1 The Client agrees to the Service Provider using their personal information for marketing purposes and gives the Service Provider permission to send out future advertising.
16.2 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lockout, industrial action, fire, flood, drought, storm, or other event beyond the reasonable control of either party.
16.3 The Service provider does not accept any responsibility for damage to property during works being carried out.
16.4 The Service Provider shall not be held liable for any such delays for work not being completed due to weather conditions, shortage of labour hire, machinery, or materials outside the direct control of the Service Provider.
16.5 In the event of any breach of this contract by the Service Provider, the remedies of the Client shall be limited to damages. Under no circumstances shall the liability of the Service Provider exceed the Price of Goods.
16.6 The Service Provider reserves the right to review and make changes to these terms and conditions at any time without notice.
17.0 Other General
17.1 Interpretation in this agreement, unless the context indicates otherwise:
- a) Defined expressions: expressions defined in the main body of this Agreement have the defined meaning in the whole of this Agreement including the background;
- b) Headings: section, clause and other headings are for ease of reference only and will not affect this Agreement’s interpretation;
- c) Monetary amounts: are stated exclusive of GST and in New Zealand currency, and all amounts payable by a party under this Agreement are to be paid in that currency;
- d) Plural and Singular: words importing the singular number include the plural and vice versa;
- e) Sections, Clauses and Schedules: references to sections, clauses and schedules are references to this Agreement’s sections, clauses and schedules; and
- f) Statues and Regulations: references to any statutory provision include any statutory provision which amends or replaces it, and any subordinate legislation made under it.