Terms & Conditions
PLEASE NOTE THAT WE HAVE A MINIMUM CHARGE OF 2 HOURS FOR ALL JOBS DURING NORMAL HOURS. A 3 HOUR MINIMUM CHARGE WILL OCCUR FOR AFTER HOURS CALLOUTS.
TUBMAN HEATING LIMITED – TERMS AND CONDITIONS OF TRADE
1. Definitions and Interpretation
1.1 Agreement means the terms and conditions contained in this document, together with any quotation, order, invoice or other document or amendments expressed to be supplemental to this Agreement.
1.2 Confidential Information means information of a confidential nature whether oral, written or in electronic form including, but not limited to, this Agreement, either party’s intellectual property, operational information, know-how, trade secrets, financial and commercial affairs, contracts, client information (including but not limited to, “Personal Information” such as: name, address, D.O.B, occupation, driver’s license details, electronic contact (email, social media account details), or other contact information (where applicable), previous credit applications, credit history) and pricing details.
1.3 Customer means the person/s, entities or any person acting on behalf of and with the authority of the Customer requesting THL provide the Goods (or the Services as the case may be) as specified in any proposal, quotation, order, invoice or other documentation, and:
(a) if there is more than one Customer, is a reference to each Customer jointly and severally; and
(b) if the Customer is a partnership, it will bind each partner jointly and severally; and
(c) if the Customer is a part of a Trust, will be bound in their capacity as a trustee; and
(d) includes the Customer’s executors, administrators, successors and permitted assigns.
1.4 Goods means all goods, machinery, product, plant, equipment or chattels supplied by THL to the Customer at the Customer’s request from time to time (where the context is appropriate includes the supply of any Services).
1.5 Price means the price payable (plus any Goods and Services Tax (GST) where applicable) for the Goods and/or Services as agreed between THL and the Customer in accordance with clause 5 of this Agreement.
1.6 Services means all services supplied by THL to the Customer and includes any advice or recommendations (where the context is appropriate includes any supply of Goods).
1.7 THL means Tubman Heating Limited , its successors and assigns or any person acting on behalf of and with the authority of Tubman Heating Limited.
2. Acceptance
2.1 The Customer is deemed to have accepted and will be immediately bound by these terms and conditions if the Customer places an order for or accepts delivery of the Goods and/or Services.
2.2 If there is inconsistency between the terms of this Agreement and any other document or arrangement between the parties, the terms of this Agreement will prevail unless expressly provided otherwise.
2.3 Any amendment to the terms of this Agreement requires the written consent of both parties.
2.4 Electronic signatures are deemed to be accepted by either party providing that the parties have complied with Section 226 of the Contract and Commercial Law Act 2017 or any other applicable provisions of that Act or any Regulations referred to in that Act.
2.5 Any advice, recommendation, information, assistance or service provided to the Customer by THL in relation to Goods and/or Services supplied is given in good faith, based on THL’s own knowledge and experience and will be accepted without liability on the part of THL and it will be the responsibility of the Customer to confirm the accuracy and reliability of the same in light of the use to which the Customer makes or intends to make of the Goods and/or Services.
3. Errors and Omissions
3.1 The Customer acknowledges and accepts that THL will, without prejudice, accept no liability in respect of any alleged or actual error(s) and/or omission(s):
(a) resulting from an inadvertent mistake made by THL in the formation and/or administration of this Agreement; and/or
(b) contained in/omitted from any literature (hard copy and/or electronic) supplied by THL in respect of the Services.
3.2 In the event such an error and/or omission occurs in accordance with clause 3.1, and is not attributable to the negligence and/or wilful misconduct of THL, the Customer will not be entitled to treat this Agreement as repudiated nor render it invalid.
4. Assignment and Change in Control
4.1 The Customer must not assign or transfer any of their rights or obligations under this Agreement to any other person without the prior written consent of THL (which consent shall not be unreasonably withheld). Any assignment, transfer or novation, or purported assignment, transfer or novation which does not comply with this clause 4.1 is (and shall be treated as) void.
4.2 The Customer will give THL not less than fourteen (14) days prior written notice of any proposed change of ownership of the Customer and/or any other change in the Customer’s details (including but not limited to, changes in the Customer’s name, address, contact phone or email address or business practice). The Customer will be liable for any loss incurred by THL as a result of the Customer’s failure to comply with this clause. If there is a change in the control of the Customer, the Customer will ask THL fourteen (14) days prior to of any change in control becoming effective, for an assignment of the rights and obligations of the Customer contained in this Agreement. Consent by THL to such assignment shall not be unreasonably withheld.
5. Price and Payment
5.1 At THL’s sole discretion the Price will be either:
(a) as invoiced by THL to the Customer; or
(b) THL’s quoted price (subject to clause 5.2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.
5.2 THL reserves the right to change the Price:
(a) if a variation to the Goods which are to be supplied is requested; or
(b) if a variation to the Services originally scheduled (including any applicable plans or specifications) is requested; or
(c) where additional Services are required due to the discovery of hidden or unidentifiable difficulties (including, but not limited to, availability of machinery, limitations to accessing the site, poor weather conditions, obscured site defects which require remedial work, health hazards and safety considerations (such as the discovery of asbestos), change of design, inaccurate Customer supplied measurements, prerequisite work by any third party not being completed or hidden pipes and wiring in walls or where THL’s ability to provide services is restricted due to access issues) which are discovered on commencement of or during the supply of the Services; or
(d) in the event of increases to THL in the cost of labour or materials which are beyond THL’s control.
5.3 Variations will be charged for based on THL’s quotation, and will be detailed in writing, and shown as variations within THL’s invoice. The Customer will be required to respond to any variation submitted by THL within ten (10) working days. Failure to do so will entitle THL to add the cost of the variation to the Price. Payment for all variations must be made in full at the time of their completion.
5.4 THL will apply different minimum call-out charges and fees during normal business hours, after-hours, and public holidays, with
a ‘stand-down’ charge being applied when services are provided between midnight and 08.00.
5.5 At THL’s sole discretion a deposit may be required. The amount of deposit required from the Customer will be stipulated at the time of the order for the Goods/Services and will become immediately due and payable.
5.6 Payment may be made by electronic/on-line banking or by any other method as agreed to between the Customer and THL.
5.7 THL may in its discretion allocate any payment received from the Customer towards any invoice that THL determines and may do so at the time of receipt or at any time afterwards. On any default by the Customer, THL may re-allocate any payments previously received and allocated. In the absence of any payment allocation by THL, payment will be deemed to be allocated in such manner as preserves the maximum value of THL’s Purchase Money Security Interest (as defined in the PPSA) in the Goods.
5.8 Unless otherwise stated the Price does not include GST. In addition to the Price, the Customer must pay to THL an amount equal to any GST THL must pay for any supply by THL under this or any other agreement for the sale of the Goods. The Customer must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Customer pays the Price. In addition, the Customer must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.
6. Delivery of Goods
6.1 Notwithstanding any obligation on the part of THL to carry out any installation work, delivery of the Goods is taken to occur at the time that THL (or THL’s nominated carrier) delivers the Goods to the Customer’s nominated address (whether that address is the Customer’s or a third party’s) even if the Customer is not present at the address.
6.2 Unless otherwise agreed, the cost of delivery is in addition to the Price.
6.3 THL may deliver the Goods in separate instalments. Each separate instalment will be invoiced and paid in accordance with the provisions in these terms and conditions.
6.4 Subject to clause 6.5, it is THL’s responsibility to ensure that the Services start as soon as it is reasonably possible.
6.5 The Services’ commencement date will be put back and/or the completion date extended by whatever time is reasonable in the event that THL claims an extension of time (by giving the Customer written notice) where completion is delayed by an event beyond THL’s control, including but not limited to any failure by the Customer to:
(a) make a selection; or
(b) have the site ready for the Services; or
(c) notify THL that the site is ready.
6.6 Any time specified by THL for delivery of the Goods is an estimate only and THL will not be liable for any loss or damage incurred by the Customer as a result of delivery being late. However, both parties agree that they will make every endeavour to enable the Goods to be delivered at the time and place as was arranged between both parties. In the event that THL is unable to supply the Goods as agreed solely due to any action or inaction of the Customer, then THL will be entitled to charge a reasonable fee for redelivery and/or storage.
7. Access
7.1 The Customer must ensure the site for installation of Goods or the performance of Services is made available to THL, and that THL has clear and free access to the site at all times to enable them to effect delivery of the Goods and/or to undertake the Services. THL will not be liable for any loss or damage to the site (including, without limitation, damage to pathways, driveways and concreted or paved or grassed areas) unless due to the negligence of THL.
7.2 If the Services are interrupted or delayed due to or in connection with a failure by the Customer to adhere to the installation schedule agreed to between THL and the Customer, any additional costs will be invoiced to the Customer as a variation in accordance with clause 5.2.
8. Risk
8.1 Risk of damage to or loss of the Goods passes to the Customer on Delivery and the Customer must insure the Goods for their full value on or before Delivery.
8.2 If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Customer, THL is entitled to receive all insurance proceeds payable for the Goods. The production of this Agreement by THL is sufficient evidence of THL’s rights to receive the insurance proceeds without the need for any person dealing with THL to make further enquiries.
8.3 If the Customer requests THL leave Goods outside THL’s premises for collection or to deliver the Goods to an unattended location then such Goods will be left at the Customer’s sole risk.
8.4 The Customer warrants that any structures to which the Goods are to be affixed and/or placed on, can withstand the installation of any Goods THL supplies and are of suitable capacity to handle the Goods once installed. If for any reason (including the discovery of asbestos) that THL, or THL’s employees, reasonably form the opinion that the Customer’s premises are unsafe for the Services to proceed, then THL may delay the provision of the Services (in accordance with clause 6.5) until THL is satisfied that it is safe for installation to proceed.
8.5 The Customer acknowledges and agrees that while THL will take all reasonable care during the performance of the Services, THL will not be liable for any loss, damages, or costs howsoever resulting from drilling or fixing the Goods into any masonry or rendered surfaces during the installation process.
8.6 Where the Customer has supplied materials for THL to complete the Services, the Customer acknowledges that it accepts responsibility for the suitability of purpose, quality and any faults inherent in the materials. THL will not be responsible for any defects in the Services, any loss or damage to the Goods (or any part thereof), howsoever arising from the use of materials supplied by the Customer.
8.7 Where the Agreement does not include installation of Goods by THL, THL will not be liable for any defect or damage resulting from incorrect or faulty installation by either the Customer or any other third party.
9. Dimensions, Plans and Specifications
9.1 THL will rely on the accuracy of any plans, specifications and other information provided by the Customer. The Customer acknowledges and agrees that if any of this information is inaccurate, THL is not liable for any loss, damages, or costs however resulting from these inaccurate plans, specifications or other information.
9.2 All customary building industry tolerances will apply to the dimensions and measurements of the Goods unless the Customer and THL agree otherwise in writing.
9.3 If the giving of an estimate or quotation for the supply of Goods involves THL estimating measurements and quantities, it will be the responsibility of the Customer to verify the accuracy of THL’s estimated measurements and quantities, before the Customer places an order based on such estimate or accepts such quotation.
9.4 Should the Customer require any changes to THL’s estimated measurements and quantities, the Customer will request such changes in writing, in the case of an estimate before placing an order based on that estimate and in the case of a quotation before acceptance of that quotation.
10. Hidden Services
10.1 Prior to THL commencing any work the Customer must advise THL of the precise location of all hidden services on the site and clearly mark the same (including but not limited to any mains/services in wall cavities). The mains & services the Customer must identify include, but are not limited to, electrical services, gas services, sewer services, pumping services, sewer connections, sewer sludge mains, water mains, irrigation pipes, telephone cables, fibre optic cables, and any other services that may be on site.
10.2 Whilst THL will take all care to avoid damage to any services the Customer agrees to indemnify THL in respect of all and any liability claims, loss, damage, costs and fines as a result of damage to services not precisely located and notified as per clause 10.1.
11. Compliance with Laws
11.1 The Customer and THL agree to comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities applicable to the Services, including any work health and safety laws relating to building/construction sites and any other relevant safety standards or legislation.
11.2 The Customer will obtain (at the expense of the Customer) all licenses and approvals that may be required for the Services.
12. Title
12.1 THL and the Customer agree that legal and equitable ownership of the Goods will not pass until:
(a) the Customer has paid THL all amounts owing to THL; and
(b) the Customer has met all its other obligations to THL.
12.2 Receipt by THL of any form of payment other than cash will not be deemed to be payment until that form of payment has been honoured, cleared or recognised.
12.3 It is further agreed that until ownership of the Goods passes to the Customer in accordance with clause 12.1:
(a) the Customer is only a bailee of the Goods and must return the Goods to THL on request;
(b) the Customer holds the benefit of the Customer’s insurance of the Goods on trust for THL and must pay to THL the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed;
(c) all risk of any loss, damage or deterioration in relation to the Goods passes to the Customer on delivery;
(d) the Customer must not sell, dispose, or otherwise part with possession of the Goods other than in the ordinary course of business and for market value. If the Customer sells, disposes or parts with possession of the Goods then the Customer must hold the proceeds of any such act on trust for THL and must pay or deliver the proceeds to THL on demand;
(e) the Customer should not convert or process the Goods or intermix them with other goods but if the Customer does so then the Customer holds the resulting product on trust for the benefit of THL and must sell, dispose of or return the resulting product to THL as it so directs;
(f) the Customer irrevocably authorises THL to enter any premises where THL believes the Goods are kept and recover possession of the Goods;
(g) THL may recover possession of any Goods in transit whether delivery has occurred or not;
(h) the Customer will not charge or grant an encumbrance over the Goods nor grant nor otherwise give away any interest in the Goods while they remain the property of THL;
(i) THL may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Customer.
13. Personal Property Securities Act 1999 (“PPSA”)
13.1 The Customer acknowledges and agrees that:
(a) this Agreement constitute a security agreement for the purposes of the PPSA; and
(b) a security interest is given and taken in all Goods and/or collateral (account) – being a monetary obligation of the Customer to THL for Services – that have been supplied and that will be supplied in the future by THL to the Customer.
13.2 The Customer undertakes to:
(a) sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which THL may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register;
(b) indemnify, and upon demand reimburse, THL for all reasonable expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register or releasing any Goods charged thereby;
(c) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods and/or collateral (account) in favour of a third party without the prior written consent of THL; and
(d) immediately advise THL of any material change in its business practices of selling the Goods which would result in a change in the nature of proceeds derived from such sales.
13.3 THL and the Customer agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA will apply to these terms and conditions.
13.4 The Customer waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA.
13.5 Unless otherwise agreed to in writing by THL, the Customer waives its right to receive a verification statement in accordance with section 148 of the PPSA.
13.6 The Customer will unconditionally ratify any actions taken by THL under clauses 13.1 to 13.5.
13.7 Subject to any express provisions to the contrary (including those contained in this clause 13), nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.
14. Security and Charge
14.1 In consideration of THL agreeing to supply the Goods, the Customer charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Customer either now or in the future, to secure the performance by the Customer of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
14.2 The Customer indemnifies THL from and against all THL’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising THL’s rights under this clause.
14.3 The Customer irrevocably appoints THL and each director of THL as the Customer’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 14 including, but not limited to, signing any document on the Customer’s behalf.
15. Defects and Returns
15.1 The Customer will inspect the Goods on delivery, or installation and will within seven (7) days of that date (time being of the essence) notify THL of any alleged defect, damage or failure to comply with the description or quote. The Customer will afford THL an opportunity to inspect the Goods within a reasonable time following delivery or installation if the Customer believes the Goods are defective in any way. If the Customer fails to comply with these provisions the Goods will be presumed to be free from any defect or damage. For defective Goods, which THL has agreed in writing that the Customer is entitled to reject, THL’s liability is limited to either (at THL’s discretion) replacing the Goods or repairing the Goods.
15.2 Goods will only be accepted for return provided that:
(a) the Customer has complied with the provisions in accordance with 15.1; and
(b) THL has agreed in writing to accept the return of the Goods; and
(c) the Goods are returned at the Customer’s cost within seven (7) days of the delivery date; and
(d) THL will not be liable for Goods which have not been stored or used in a proper manner; and
(e) the Goods are returned in the condition in which they were delivered and with all packaging material, brochures and instruction material in as new condition as is reasonably possible in the circumstances.
16. Warranty
16.1 Subject to the conditions of warranty set out in clause 16.2 THL warrants that if any defect in any workmanship of THL becomes apparent and is reported to THL within one (1) month of the date of delivery (time being of the essence) then THL will either (at THL’s sole discretion) replace or remedy the workmanship.
16.2 The conditions applicable to the warranty given by clause 16.1 are:
(a) the warranty will not cover any defect or damage which may be caused or partly caused by or arise through:
(i) failure on the part of the Customer to properly maintain any Goods; or
(ii) failure on the part of the Customer to follow any instructions or guidelines provided by THL; or
(iii) any use of any Goods otherwise than for any application specified on a quote or order form; or
(iv) the continued use of any Goods after any defect becomes apparent or would have become apparent to a reasonably prudent operator or user; or
(v) fair wear and tear, any accident or act of God.
(b) the warranty will cease and THL will thereafter in no circumstances be liable under the terms of the warranty if the workmanship is repaired, altered or overhauled without THL’s consent.
(c) in respect of all claims THL will not be liable to compensate the Customer for any delay in either replacing or remedying the workmanship or in properly assessing the Customer’s claim.
16.3 For Goods not manufactured by THL, the warranty will be the current warranty provided by the manufacturer of the Goods. THL will not be bound by nor be responsible for any term, condition, representation or warranty other than that which is given by the manufacturer of the Goods.
17. Intellectual Property
17.1 Where THL has designed, drawn or developed Goods for the Customer, then the copyright in any designs and drawings and documents will remain the property of THL. Under no circumstances may such designs, drawings and documents be used without the express written approval of THL.
17.2 The Customer warrants that all designs, specifications or instructions given to THL will not cause THL to infringe any patent, registered design or trademark in the execution of the Customer’s order and the Customer agrees to indemnify THL against any action taken by a third party against THL in respect of any such infringement.
17.3 The Customer agrees that THL may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings or Goods which THL has created for the Customer.
18. Default and Consequences of Default
18.1 Interest on overdue invoices will accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at THL’s sole discretion such interest will compound monthly at such a rate) after as well as before any judgment.
18.2 If the Customer owes THL any money the Customer will indemnify THL from and against all costs and disbursements incurred by THL in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, THL’s collection agency costs, and bank dishonour fees).
18.3 Further to any other rights or remedies THL may have under this Agreement, if a Customer has made payment to THL, and the transaction is subsequently reversed, the Customer will be liable for the amount of the reversed transaction, in addition to any further costs incurred by THL under this clause 18 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Customer’s obligations under this Agreement.
18.4 If any account remains unpaid at the end of the second month after supply of the Goods or Services, an amount equal to 20% of the overdue amount shall be levied for administration fees and shall become immediately due and payable.
18.5 Without prejudice to THL’s other remedies at law THL will be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to THL will, whether or not due for payment, become immediately payable if:
(a) any money payable to THL becomes overdue, or in THL’s opinion the Customer will be unable to make a payment when it falls due;
(b) the Customer 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 person is appointed in respect of the Customer or any asset of the Customer.
19. Cancellation
19.1 Without prejudice to any other rights or remedies THL may have, if at any time the Customer is in breach of any obligation (including those relating to payment and/or failure to remedy any breach in respect of this Agreement within ten (10) working days of receipt by the Customer of such notice/s) then THL may suspend the Services immediately. THL will not be liable to the Customer for any loss or damage the Customer suffers because THL has exercised its rights under this clause.
19.2 THL may cancel any contract to which these terms and conditions apply or cancel delivery of Goods at any time before the Goods are delivered by giving written notice to the Customer. On giving such notice THL will repay to the Customer any money paid by the Customer for the Goods. THL will not be liable for any loss or damage whatsoever arising from such cancellation.
19.3 In the event that the Customer cancels delivery of Goods the Customer will be liable for any and all loss incurred (whether direct or indirect) by THL as a direct result of the cancellation including, but not limited to:
(a) the cost of re-stocking the Goods (assessed as liquidated damages) being 20% of the value (excluding GST) of the cancelled order; and
(b) any loss of profits.
19.4 The Customer has no right to cancel an order for Goods that includes indent items and will remain fully liable for the cost of the Goods whether delivery of the Goods has occurred or not.
20. Privacy Policy
20.1 All emails, documents, plans, diagrams, images or other recorded information held or used by THL is Personal Information as defined in the Privacy Act 1993 (“the Act”) and therefore considered confidential. THL acknowledges that in the event it becomes aware of any data breaches and/or disclosure of the Customers Personal Information, held by THL that may result in serious harm to the Customer, THL will notify the Customer in accordance with the Act.
20.2 The Customer authorises THL or THL’s agent to:
(a) access, collect, retain and use any information about the Customer;
(i) (including, name, address, D.O.B, occupation, driver’s license details, electronic contact, previous credit applications, credit history or any overdue fines balance information held by the Ministry of Justice) for the purpose of assessing the Customer’s creditworthiness; or
(ii) for the purpose of marketing products and services to the Customer.
(b) disclose information about the Customer, whether collected by THL from the Customer directly or obtained by THL from any other source to any other credit provider or any credit reporting agency for the purposes of providing or obtaining a credit reference, debt collection or notifying a default by the Customer.
20.3 Where the Customer is an individual the authorities under clause 20.2 are authorities or consents for the purposes of the Act.
20.4 The Customer will have the right to request THL for a copy of the Personal Information about the Customer retained by THL and the right to request THL to correct any incorrect Personal Information about the Customer held by THL.
21. Suspension of Services
21.1 Where the Agreement is subject to the Construction Agreements Act 2002, the Customer hereby expressly acknowledges that:
21.2 THL has the right to suspend work within five (5) working days of written notice of its intent to do so if a payment claim is served on the Customer, and:
21.3 the payment is not paid in full by the due date for payment in accordance with this Agreement and/or any subsequent amendments or new legislation and no payment schedule has been given by the Customer; or
21.4 a scheduled amount stated in a payment schedule issued by the Customer in relation to the payment claim is not paid in full by the due date for its payment; or
21.5 the Customer has not complied with an adjudicator’s notice that the Customer must pay an amount to THL by a particular date; and
21.6 THL has given written notice to the Customer of its intention to suspend the carrying out of construction work under the construction Agreement:
(a) if THL suspends work, it:
(i) is not in breach of Agreement; and
(ii) is not liable for any loss or damage whatsoever suffered, or alleged to be suffered, by the Customer or by any person claiming through the Customer; and
(iii) is entitled to an extension of time to complete the Agreement; and
(iv) keeps its rights under the Agreement including the right to terminate the Agreement; and may at any time lift the suspension, even if the amount has not been paid or an adjudicator’s determination has not been complied with;
(b) if THL exercises the right to suspend work, the exercise of that right does not:
(i) affect any rights that would otherwise have been available to THL under the Contract and Commercial Law Act 2017; or
(ii) enable the Customer to exercise any rights that may otherwise have been available to the Customer under that Act as a direct consequence of THL suspending work under this provision;
(c) due to any act or omission by the Customer, the Customer effectively precludes THL from continuing the Services or performing or complying with THL’s obligations under this Agreement, then without prejudice to THL’s other rights and remedies, THL may suspend the Services immediately after serving on the Customer a written notice specifying the payment default or the act, omission or default upon which the suspension of the Services is based. All costs and expenses incurred by THL as a result of such suspension and recommencement will be payable by the Customer as if they were a variation.
21.7 If pursuant to any right conferred by this Agreement, THL suspends the Services and the default that led to that suspension continues un-remedied subject to clause 19.1 for at least ten (10) working days, THL will be entitled to terminate the Agreement, in accordance with clause 19.
22. General
22.1 If this Agreement is a “construction contract” or relates to “construction work” (in each case as defined in the Construction Contracts Act 2002), the provisions of that Act will take priority over the terms of this Agreement (as applicable) if there is any conflict or inconsistency between this Agreement and that Act.
22.2 The parties will use best efforts to resolve any dispute or difference arising as to the interpretation of these terms and conditions or as to any matter arising under this Agreement or any contract to which they apply, however failing that, the matter will be submitted to, and settled by, either adjudication in accordance with the Construction Contracts Act 2002 and/or by arbitration in accordance with the Arbitration Act 1996 or its replacement(s).
22.3 The failure by either party to enforce any provision of these terms and conditions will not be treated as a waiver of that provision, nor will it affect that party’s right to subsequently enforce that provision. If any provision of these terms and conditions will be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions will not be affected, prejudiced or impaired.
22.4 These terms and conditions and any contract to which they apply will be governed by the laws of New Zealand and are subject to the jurisdiction of the courts of New Zealand.
22.5 Any notice given under this Agreement will be deemed to have been given if sent by email to the other party’s last known email address.
22.6 THL will be under no liability whatsoever to the Customer for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Customer or any other person, arising out of a breach by THL of these terms and conditions. Alternatively, THL’s liability will be limited to damages which under no circumstances will exceed the Price of the Goods.
22.7 THL may licence and/or assign all or any part of its rights and/or obligations under this Agreement without the Customer’s consent.
22.8 THL may elect to subcontract out any part of the Services but will not be relieved from any liability or obligation under this Agreement by so doing. Furthermore, the Customer agrees and understands that they have no authority to give any instruction to any of THL’s sub-contractors without the authority of THL.
22.9 The Customer agrees that THL may amend their general terms and conditions for subsequent future contracts with the Customer by disclosing such to the Customer in writing. These changes will be deemed to take effect from the date on which the Customer accepts such changes, or otherwise at such time as the Customer makes a further request for THL to provide Goods to the Customer.
22.10 Neither party will be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm, pandemic or other event beyond the reasonable control of either party.
22.11 Both parties warrant that they have the power to enter into this Agreement and have obtained all necessary authorisations to allow them to do so, they are not insolvent and that this Agreement creates binding and valid legal obligations on them.
