WAIKATO CONCRETE LTD (‘the Contractor’)
TERMS OF TRADE
Unless the Contractor agrees otherwise in writing, the following terms and conditions apply exclusively to all contracts for the sale and supply of goods and/or services (together called ‘Works’) by the Contractor.
In the absence of written (or electronic communication of) acceptance of these Terms of Trade by the Employer, any request or instruction from the Employer to the Contractor to proceed with the Works shall constitute acceptance by the Employer of the Contractor’s quotation and these Terms of Trade.
All warranties, conditions, guarantees and indemnities which would otherwise be implied by statute or would otherwise be implied by law in relation to the goods and/or services supplied by the Contractor, are excluded to the extent permitted by law.
- Definitions & interpretation
‘Contractor’ means Waikato Concrete Ltd (and includes agents of and subcontractors to that company).
‘Employer’ means the person(s) or organisation to whom the Contractor’s quotation is addressed.
‘Works’ means the work described in the quotation (including, where applicable, materials to be supplied by the Contractor as specified in the quotation or as otherwise agreed in writing – ‘materials’).
‘Site’ means the location of the Works specified in the quotation.
‘Contract’ means the contract constituted in accordance with these Terms of Trade, including the terms of the Contractor’s quotation.
‘Contract price’ means the quoted price (or estimated price, if not described as a quote) payable for the goods and services contained in the Contractor’s quotation (or as elsewhere specified by the Contractor). Unless otherwise expressly agreed in writing by the Contractor, the Contract price is net of GST, delivery charges and any other costs not specifically included in the quotation (such as any agreed extras and variations), all of which are payable to the Contractor, in addition to the Contract price, on the same due date as the Contract price.
Time is of the essence in respect of all stipulations as to time for payment of the Contract price.
- Site availability & access
The Contractor will provide all labour, materials and equipment necessary for completion of the Works. The Employer will provide or procure reasonable availability of the necessary Site services, including electricity, water and toilet facilities, at no cost to the Contractor. The Employer shall allow or procure unimpeded access to the Site for the Contractor and its workmen and vehicles and equipment at agreed times and, in the absence of agreement, at such times as will allow the Contractor a reasonable period (without interference) to complete the Works by the anticipated completion date.
- Colour variance
(a) Samples, descriptions or photos of finished concrete provided to or selected by the Employer are acknowledged as showing general character and appearance only. Colours of the actual finished concrete supplied by the Contractor on Site cannot be guaranteed as corresponding precisely with the colour of any such samples, descriptions or photos.
(b) The Employer acknowledges that due to the nature of the materials used by the Contractor and the curing process colour variations may occur and, in such case, the Contractor shall not be liable to either remedy the colour variation or to replace the Works and will not be required to reduce the Contract price or compensate the Employer in any way.
- Price & payment
(a) The Employer shall pay the Contract price (including any agreed extras or variations) to the Contractor in full (without any deduction, set off or counterclaim whatsoever) at the time or times specified in the Contractor’s quotation or as otherwise required by these Terms of Trade. If advance payments or instalment payments are not specified in the Contractor’s quotation, the Contractor may nevertheless require advance payments and/or payments by instalments in such amounts and on such payment dates as the Contractor may notify in writing to the Employer. Subject to the foregoing the Contract price (including any agreed extras and variations) shall be paid in full to the Contractor by completion of the Works at the latest. For this purpose ‘completion of the Works’ means when the concrete has been fully laid and finished by the Contractor (notwithstanding that it has not yet fully cured).
(b) If full payment or any instalment payment of the Contract price is not made to the Contractor when due then the Employer shall pay to the Contractor default interest at the rate of 2% per month on the outstanding monies calculated on a daily basis from the date payment was due until full payment is received.
(c) The Contractor shall be entitled to stop or suspend the Works if any part of the Contract price due from the Employer is not paid in full when due.
(d) The Contract price may be increased by the Contractor (and/or the due date(s) for payment of all or part of the Contract price may be brought forward by the Contractor) by giving written notice accordingly to the Employer at any time up until completion of the Works:
- if the Employer requests or approves a change to the design, quantity or specifications of the goods/services concerned and/or any other Contract variation or extra is agreed; or
- if any circumstances give rise to an increase in the Contractor’s cost of supplying the goods/services concerned (including, without limitation, additional materials or labour or additional cost of materials or labour); or
- if the Employer defaults or delays in making any payment due to the Contractor or threatens to do so.
- Any resulting increase in the Contract price will be due and payable by the Employer to the Contractor on the same due date(s) as the original Contract price (or any earlier accelerated due date specified by the Contractor) and if the original Contract price has already been paid in full then the increase is due and payable to the Contractor upon demand.
- Adverse ground and weather conditions & interference with the Works
Unless otherwise expressly stated in the description of the Works contained in the Contractor’s quotation, the Contractor has made no allowance in the quotation for (and is not responsible for):
(a) any delay in commencement or completion of the Works due to unsuitable weather conditions or any delay or defect in curing of the concrete (whether by surface damage, shrinkage, cracking, discolouration or otherwise) which is beyond the reasonable control of the Contractor; or
(b) unsuitable ground conditions, whether relating to soil compaction, subsidence, drainage or other unforeseen difficulties or obstacles at the Site; or
- any defect or damage to the Works caused by any person, other than the Contractor, or animal interfering with the Works (including, without limitation, any person or animal walking on or touching the concrete while it is curing). It is the Employer’s responsibility to safeguard the Works.
The Contractor shall not be liable for any delays or defects caused or contributed by any of the above and may suspend the Works while such adverse conditions remain. In addition, any remedial work that the Contractor may in its absolute discretion agree to carry out to remedy any defect or damage arising in connection with any of the above, or extra works that the Contractor may agree to carry out to rectify adverse ground conditions, will be an extra, in respect of which the Contractor may charge and recover an increased Contract price.
If, due to adverse weather conditions or adverse ground conditions, the Contractor intends to delay the commencement or completion of the Works but the Employer insists on the Works proceeding against the Contractor’s advice then the Contractor may at its absolute discretion comply with such request but may require full payment of the Contract price (and any increased price based on any extra work required) before commencing or continuing the Works.
- Insurable risk & security
The Employer shall be responsible for the Contractor’s equipment on Site and the Employer shall indemnify the Contractor accordingly. Insurable risk in all such equipment will lie with the Employer (or the Site owner) while they are on Site.
- Costs
The Employer indemnifies the Contractor from and against (and shall upon demand pay to the Contractor) all debt collector fees, commission and charges and all legal costs and expenses (including full legal costs and expenses on a solicitor and own client basis) incurred or suffered by the Contractor in or in connection with the enforcement or attempted enforcement of the Contractor’s rights and remedies arising from any breach of the provisions of these Terms of Trade or any Contract incorporating these Terms of Trade and/or incurred or suffered by the Contractor in suing for or attempting to recover any sum due to the Contractor by the Employer.
- Limitation of liability
(a) The Contractor shall not be liable for any consequential loss or damage to the Site or any building or chattels on the Site or otherwise incurred or suffered by the Employer (including economic loss) however arising in connection with execution of the Works or any defect in the Works or delay in completion of the Works.
(b) The Contractor gives no warranty in respect of materials ordered or supplied by the Employer.
(c) The Employer agrees that where the Works are to be undertaken for the purposes of the Employer’s business the Consumer Guarantees Act 1993 shall not apply to the Contractor’s Works.
(d) Without limiting the foregoing, the liability of the Contractor arising in connection with any breach of contract for the supply of goods and/or services or arising in connection with any negligent act or omission on the part of Contractor (or its employees or subcontractors) will be limited to a maximum of the total Contract price for the goods and/or services concerned.
- Delays & extensions of time for extras & variations
The Contractor shall not be responsible for delays caused by any strike, lock-out, fire or flood or by inclement weather, or the delay or default of suppliers in delivery of materials to the Site or by any other circumstances beyond the Contractor’s control.
The Contractor may, at its absolute discretion, agree to extras and variations requested by the Employer subject to written agreement on: (i) any related increase in the Contract price, (ii) any related change to the due date(s) for payment of the Contract price, and (iii) any related extension of time for completion of the Works. In the absence of agreement on any time extension, the Contractor shall have an additional reasonable period to complete the Works including those extras and variations.
- Cancellation
Any request by the Employer to cancel all or part of any Contract may be accepted at the Contractor’s absolute discretion, provided that the Contractor may charge for, and recover from the Employer, all work carried out, materials ordered and expenses incurred in relation to the Contract before acceptance of the cancellation (including, without limitation, site visits, job measurement and costing and dealings with third parties). Any such agreed cancellation shall take effect upon full payment to the Contractor for such works, materials and expenses, pending which these Terms of Trade shall continue to apply.