Hydropro Limited – Terms & Conditions of Trade (b) the Client holds the benefit of the Client’s insurance of the Materials on trust for the Contractor and must pay to the Contractor the proceeds of any insurance in the event of the Materials being lost, damaged or destroyed;(c) the production of these terms and conditions by the Contractor shall be sufficient evidence of the Contractor’s rights to receive the insurance proceeds direct from the insurer without the need for any person dealing with the Contractor to make further enquiries;(d) the Client must not sell, dispose, or otherwise part with possession of the Materials other than in the ordinary course of business and for market value. If the Client sells, disposes or parts with possession of the Materials then the Client must hold the proceeds of any such act on trust for the Contractor and must pay or deliver the proceeds to the Contractor on demand;(e) the Client should not convert or process the Materials or intermix them with other goods but if the Client does so then the Client holds the resulting product on trust for the benefit of the Contractor and must sell, dispose of or return the resulting product to the Contractor as it so directs;(f) unless the Materials have become fixtures the Client irrevocably authorises the Contractor to enter any premises where the Contractor believes the Materials are kept and recover possession of the Materials;(g) the Contractor may recover possession of any Materials in transit whether or not delivery has occurred;(h) the Client shall not charge or grant an encumbrance over the Materials nor grant nor otherwise give away any interest in the Materials while they remain the property of the Contractor;(i) the Contractor may commence proceedings to recover the Price of the Materials sold notwithstanding that ownership of the Materials has not passed to the Client.13. Personal Property Securities Act 1999 (“PPSA”)13.1 Upon assenting to these terms and conditions in writing the Client acknowledges and agrees that:(a) these terms and conditions constitute a security agreement for thepurposes of the PPSA; and(b) a security interest is taken in all Materials and/or collateral (account) –being a monetary obligation of the Client to the Contractor for Works – that have previously been supplied and that will be supplied in the future by the Contractor to the Client.13.2 The Client undertakes to:(a) sign any further documents and/or provide any further information (suchinformation to be complete, accurate and up-to-date in all respects) which the Contractor may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register;(b) indemnify, and upon demand reimburse, the Contractor for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register or releasing any Materials charged thereby;(c) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Materials and/or collateral (account) in favour of a third party without the prior written consent of the Contractor; and(d) immediately advise the Contractor of any material change in its business practices of selling Materials which would result in a change in the nature of proceeds derived from such sales.13.3 The Contractor and the Client agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms and conditions.13.4 The Client 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 the Contractor, the Client waives its right to receive a verification statement in accordance with section 148 of the PPSA.13.6 The Client shall unconditionally ratify any actions taken by the Contractor under clauses 13.1 to 13.5.14. Security and Charge14.1 In consideration of the Contractor agreeing to supply the Works, the Client 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 Client either now or in the future, to secure the performance by the Client of its obligations under these terms and conditions (including, but not limited to, the payment of any money).14.2 The Client indemnifies the Contractor from and against all the Contractor’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising the Contractor’s rights under this clause.14.3 The Client irrevocably appoints the Contractor and each director of the Contractor as the Client’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 Client’s behalf.15. Defects and Returns15.1 The Client shall inspect the Materials and/or workmanship on delivery and shall within thirty (30) days of delivery (time being of the essence) notify the Contractor of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Client shall afford the Contractor an opportunity to inspect the Materials and/or workmanship within a reasonable time following delivery if the Client believes the Materials and/or workmanship are defective in any way. If the Client shall fail to comply with these provisions the Materials shall be presumed to be free from any defect or damage. For defective Materials, which the Contractor has agreed in writing that the Client is entitled to reject, the Contractor’s liability is limited to either (at the Contractor’s discretion) replacing the Materials or repairing the Materials.15.2 Materials will not be accepted for return other than in accordance with 15.1 above.15.3 Non-stocklist items or Materials made to the Client’s specifications are under no circumstances acceptable for credit or return.16. Warranties16.1 Subject to the conditions of warranty set out in clause 16.2 the Contractor warrants that if any defect in any workmanship of the Contractor becomes apparent and is reported to the Contractor within two (2) months of the date of delivery (time being of the essence) then the Contractor will either (at the Contractor’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 shall not cover any defect or damage which may be causedor partly caused by or arise through:(i) failure on the part of the Client to properly maintain any Materials; or (ii) failure on the part of the Client to follow any instructions or guidelinesprovided by the Contractor; or(iii) any use of any Materials otherwise than for any application specifiedon a quote or order form; or(iv) the continued use of any Materials after any defect becomesapparent or would have become apparent to a reasonably prudentoperator or user; or(v) fair wear and tear, any accident or act of God.(b) the warranty shall cease and the Contractor shall thereafter in no circumstances be liable under the terms of the warranty if the workmanship is repaired, altered or overhauled without the Contractor’s consent.(c) in respect of all claims the Contractor shall not be liable to compensate the Client for any delay in either replacing or remedying the workmanship or in properly assessing the Client’s claim.16.3 For Materials not manufactured by the Contractor, the warranty shall be the current warranty provided by the manufacturer of the Materials. The Contractor shall 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 Materials.16.4 The conditions applicable to the warranty given on Materials supplied by the Contractor are contained on the “Warranty document” that will be supplied with the Materials.17. Consumer Guarantees Act 199317.1 If the Client is acquiring Materials for the purposes of a trade or business, the Client acknowledges that the provisions of the Consumer Guarantees Act 1993 do not apply to the supply of Materials by the Contractor to the Client.18. Intellectual Property18.1 Where the Contractor has designed, drawn, written plans or a schedule of Works, or created any products for the Client, then the copyright in all such designs, drawings, documents, plans, schedules and products shall remain vested in the Contractor, and shall only be used by the Client at the Contractor’s discretion. Under no circumstances may such designs, drawings and documents be used without the express written approval of the Contractor.18.2 The Client warrants that all designs, specifications or instructions given to the Contractor will not cause the Contractor to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify the Contractor against any action taken by a third party against the Contractor in respect of any such infringement.18.3 The Client agrees that the Contractor may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings, plans or products which the Contractor has created for the Client.19. Default and Consequences of Default19.1 Interest on overdue invoices shall 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 the Contractor’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.19.2 If the Client owes the Contractor any money the Client shall indemnify the Contractor from and against all costs and disbursements incurred by the Contractor in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, the Contractor’s collection agency costs, and bank dishonour fees).19.3 Further to any other rights or remedies the Contractor may have under this contract, if a Client has made payment to the Contractor, and the transaction is subsequently reversed, the Client shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by the Contractor under this clause 19, where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Client’s obligations under this contract.19.4 Without prejudice to the Contractor’s other remedies at law the Contractor shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to the Contractor shall, whether or not due for payment, become immediately payable if:(a) any money payable to the Contractor becomes overdue, or in the Contractor’s opinion the Client will be unable to make a payment when it falls due;(b) the Client has exceeded any applicable credit limit provided by the Contractor;(c) the Client becomes insolvent or bankrupt, 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(d) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.20. Cancellation20.1 Without prejudice to any other remedies the Contractor may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions the Contractor may suspend or terminate the supply of Works to the Client. The Contractor will not be liable to the Client for any loss or damage the Client suffers because the Contractor has exercised its rights under this clause.20.2 The Contractor may cancel any contract to which these terms and conditions apply or cancel delivery of Works at any time before the Works are commenced by giving written notice to the Client. On giving such notice the Contractor shall repay to the Client any sums paid in respect of the Price, less any amounts owing by the Client to the Contractor for Works already performed. The Contractor shall not be liable for any loss or damage whatsoever arising from such cancellation.20.3 In the event that the Client cancels the delivery of Works the Client shall be liable for any and all loss incurred (whether direct or indirect) by the Contractor as a direct result of the cancellation (including, but not limited to, any loss of profits).20.4 Cancellation of orders for products made to the Client’s specifications, or for non-stocklist items, will definitely not be accepted once production has commenced, or an order has been placed.21. Privacy Act 199321.1 The Client authorises the Contractor or the Contractor’s agent to: (a) access, collect, retain and use any information about the Client;(i) (including any overdue fines balance information held by the Ministry of Justice) for the purpose of assessing the Client’s creditworthiness; or(ii) for the purpose of marketing products and services to the Client. (b) disclose information about the Client, whether collected by the Contractor from the Client directly or obtained by the Contractor from any other source, to any other credit provider or any credit reporting agency for the purposes of providing or obtaining a credit reference, debtcollection or notifying a default by the Client.21.2 Where the Client is an individual the authorities under clause 21.1 areauthorities or consents for the purposes of the Privacy Act 1993.21.3 The Client shall have the right to request the Contractor for a copy of the information about the Client retained by the Contractor and the right to request the Contractor to correct any incorrect information about the Clientheld by the Contractor.22. Construction Contracts Act 200222.1 The Client hereby expressly acknowledges that:(a) the Contractor has the right to suspend work within five (5) working daysof written notice of its intent to do so if a payment claim is served on the Client, and:(i) the payment is not paid in full by the due date for payment and no payment schedule has been given by the Client; or(ii) a scheduled amount stated in a payment schedule issued by the Client in relation to the payment claim is not paid in full by the due date for its payment; or(iii) the Client has not complied with an adjudicator’s notice that the Client must pay an amount to the Contractor by a particular date; and(iv) the Contractor has given written notice to the Client of its intention to suspend the carrying out of construction work under the construction contract.(b) if the Contractor suspends work, it:(i) is not in breach of contract; and(ii) is not liable for any loss or damage whatsoever suffered, or allegedto be suffered, by the Client or by any person claiming through theClient; and(iii) is entitled to an extension of time to complete the contract; and(iv) keeps its rights under the contract including the right to terminate thecontract; 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.(c) if the Contractor exercises the right to suspend work, the exercise of that right does not:(i) affect any rights that would otherwise have been available to the Contractor under the Contract and Commercial Law Act 2017; or (ii) enable the Client to exercise any rights that may otherwise havebeen available to the Client under that Act as a direct consequence of the Contractor suspending work under this provision.23. Service of Notices23.1 Any written notice given under this contract shall be deemed to have been given and received:(a) by handing the notice to the other party, in person;(b) by leaving it at the address of the other party as stated in this contract; (c) by sending it by registered post to the address of the other party asstated in this contract;(d) if sent by facsimile transmission to the fax number of the other party asstated in this contract (if any), on receipt of confirmation of thetransmission;(e) if sent by email to the other party’s last known email address.23.2 Any notice that is posted shall be deemed to have been served, unless the contrary is shown, at the time when by the ordinary course of post, the notice would have been delivered.24. Trusts24.1 If the Client at any time upon or subsequent to entering in to the contract is acting in the capacity of trustee of any trust (“Trust”) then whether or not the Contractor may have notice of the Trust, the Client covenants with the Contractor as follows:(a) the contract extends to all rights of indemnity which the Client now or subsequently may have against the Trust and the trust fund;(b) the Client has full and complete power and authority under the Trust to enter into the contract and the provisions of the Trust do not purport to exclude or take away the right of indemnity of the Client against the Trust or the trust fund. The Client will not release the right of indemnity or commit any breach of trust or be a party to any other action which might prejudice that right of indemnity.(c) the Client will not without consent in writing of the Contractor (the Contractor will not unreasonably withhold consent), cause, permit, or suffer to happen any of the following events;(i) the removal, replacement or retirement of the Client as trustee of theTrust;(ii) any alteration to or variation of the terms of the Trust;(iii) any advancement or distribution of capital of the Trust; or (iv) any resettlement of the trust property.25. General25.1 Any dispute or difference arising as to the interpretation of these terms and conditions or as to any matter arising hereunder, shall 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).25.2 The failure by either party to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect that party’s right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.25.3 These terms and conditions and any contract to which they apply shall be governed by the laws of New Zealand and are subject to the jurisdiction of the courts of New Zealand.25.4 The Contractor shall be under no liability whatsoever to the Client for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by the Contractor of these terms and conditions (alternatively the Contractor’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Works).25.5 The Contractor may licence and/or assign all or any part of its rights and/or obligations under this contract without the Client’s consent.25.6 The Client cannot licence or assign without the written approval of the Contractor.25.7 The Contractor may elect to subcontract out any part of the Works but shall not be relieved from any liability or obligation under this contract by so doing. Furthermore, the Client agrees and understands that they have no authority to give any instruction to any of the Contractor’s sub-contractors without the authority of the Contractor.25.8 The Client agrees that the Contractor may amend these terms and conditions by notifying the Client in writing. These changes shall be deemed to take effect from the date on which the Client accepts such changes, or otherwise at such time as the Client makes a further request for the Contractor to provide Works to the Client.25.9 The Contractor shall not be liable for any damage due to any act of God, war, terrorism, land subsidence, vibration, strike, lock-out, industrial action, fire, flood, weather events, storm or any other event beyond the reasonable control of the Contractor.25.10 The Client and/or property owner of the works will obtain and maintain Contract Works Insurance for projects on which the Contractor is to be providing services and materials upon.25.11 The Contractor shall provide necessary council compliance documentation within 5 working days of receipt of final payment from the Client for all works undertaken.25.12 Both parties warrant that they have the power to enter into this contract and have obtained all necessary authorisations to allow them to do so, they are not insolvent and that this contract creates binding and valid legal obligations on them.Please note that a larger print version of these terms and conditions is available from the Contractor on request.