Terms & Conditions Of Trade
1.1 “Contract” means the terms and conditions contained herein, together with any quotation, order, invoice or other document or amendments expressed to be supplemental to this Contract.
1.2 “SSPL” means Southern Spas & Pools Limited, its successors and assigns or any person acting on behalf of and with the authority of Southern Spas & Pools Limited. 1.3 “Customer” means the person/s, entities or any person acting on behalf of and with the authority of the Customer requesting SSPL to provide the Services 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 shall bind each partner jointly and severally; and
(c) if the Customer is a part of a Trust, shall 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 or Services supplied by SSPL to the Customer at the Customer’s request from time to time (where the context so permits the terms ‘Goods’ or ‘Services’ shall be interchangeable for the other).
1.5 “Intended Use” means a product and the use thereof, for which the product is intended to be, or is reasonably likely to be, associated with the Services.
1.6 “Non-Conforming Building Product” means building products that are regarded as Non-Conforming for an Intended Use if, when associated with construction works: (a) the product is not, or will not be, safe; or
(b) does not, or will not, comply with the relevant regulatory provisions; or
(c) the product does not perform, or is not capable of performing, for the use to the standard it is represented to conform by or for a person in the chain of responsibility for the product.
1.7 “Confidential Information” means information of a confidential nature whether oral, written or in electronic form including, but not limited to, this Contract, 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, Facebook or Twitter details), medical insurance details or next of kin and other contact information (where applicable), previous credit applications, credit history) and pricing details.
1.8 “Price” means the Price payable (plus any Goods and Services Tax (“GST”) where applicable) for the Goods as agreed between SSPL and the Customer in accordance with clause 6 below.
1.9 “Workite” means the address nominated by the Customer at which the Services are to be provided by SSPL.
2.1 The Customer is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Customer places an order for or accepts Delivery of the Goods.
2.2 In the event of any inconsistency between the terms and conditions of this Contract and any other prior document or schedule that the parties have entered into, the terms of this Contract shall prevail.
2.3 Any amendment to the terms and conditions contained in this Contract may only be amended in writing by the consent of both parties. 2.4 The Customer acknowledges and accepts that: (a) the provision of Goods for accepted orders may be subject to availability and if, for any reason, Goods are not, or cease to be, available, SSPL reserves the right to vary the Price with alternative Goods as per clause 6.2. SSPL also reserves the right to halt the provision of the Services until such time as SSPL and the Customer agree to such variation;
(b) when the Customer is purchasing the construction of the pool based on plans provided that in the event of any changes in regulations or decisions made by local authorities (councils etc) after acceptance of the quote may result in additional costs to satisfy the necessary specifications in order to satisfy these requirements;
(c) SSPL does not accept liability for any Services carried out by any other third party contracted by the Customer;
(d) the Customer agrees to indemnify SSPL from any damage caused by any other tradesman engaged by the Customer during and after the completion of the Services (including but not limited to, an unsuitable excavation surface for installation). SSPL reserves the right to halt the Services until such time as it is rectified and if SSPL is instructed to do this, it will become a variation to the original quotation and will be charged in accordance with clause 6.2.
2.5 Any advice, recommendation, information, assistance or service provided by SSPL in relation to Goods or Services supplied is given in good faith, is based on SSPL’s own knowledge and experience and shall be accepted without liability on the part of SSPL and it shall 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 or Services.
2.6 Electronic signatures shall be 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.
3. Authorised Representatives
3.1 Unless otherwise limited as per clause 3.2, the Customer agrees that should the Customer introduce any third party (including but not limited to, another company or consultant) to SSPL as the Customer’s duly authorised representative, that once introduced that person shall have the full authority of the Customer to order any Services, and/or to request any variation thereto, on the Customer’s behalf (such authority to continue until all requested Services have been completed or the Customer otherwise notifies SSPL in writing that said person is no longer the Customer’s duly authorised representative).
3.2 In the event that the Customer’s duly authorised representative as per clause 3.1 is to have only limited authority to act on the Customer’s behalf then the Customer must specifically and clearly advise SSPL in writing of the parameters of the limited authority granted to their representative.
3.3 The Customer specifically acknowledges and accepts that they will be solely liable to SSPL for all additional costs incurred by SSPL (including SSPL’s profit margin) in providing any Services, or variation/s thereto, requested by the Customer’s duly authorised representative (subject always to the limitations imposed under clause 3.2 (if any)). 4. Errors and Omissions 4.1 The Customer acknowledges and accepts that SSPL shall, 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 SSPL in the formation and/or administration of this Contract; and/or
(b) contained in/omitted from any literature (hard copy and/or electronic) supplied by SSPL in respect of the Services.
4.2 In the event such an error and/or omission occurs in accordance with clause 4.1, and is not attributable to the negligence and/or wilful misconduct of SSPL; the Customer shall not be entitled to treat this contract as repudiated nor render it invalid.
5. Change in Control
5.1 The Customer shall give SSPL 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 and contact phone or fax number/s, change of trustees or business practice). The Customer shall be liable for any loss incurred by SSPL as a result of the Customer’s failure to comply with this clause. 6. Price and Payment 6.1 At SSPL’s sole discretion the Price shall be either: (a) as indicated on any invoice provided by SSPL to the Customer; or
(b) the Price as at the date of Delivery of the Goods according to SSPL’s current price list; or
(c) SSPL’s quoted price (subject to clause 6.2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.
6.2 SSPL 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 (including labour, machine hire and Goods) are required due to the discovery of hidden or unidentifiable difficulties (including, but not limited to, obscured Worksite defects, items or ground conditions that delay the Services, where remedial or extra work is required due to unstable ground, rock, shale and high ground water levels, etc.) which are only discovered on commencement of the Services; or
(d) if during the course of the Services, the Goods cease to be available from SSPL’s third party suppliers, then SSPL reserves the right to provide alternative Goods, subject to prior confirmation and agreement of both parties; or
(e) as a result of an increase in SSPL’s costs due to changes in statutory, government, or local body charges, taxes, levies, etc. with respect to the Services and/or fluctuations in currency exchange rates, which are outside the control of SSPL;
(f) in the event the completion of the Services take longer than six (6) months from the commencement date, or from the pool shell arriving in stock (whichever is the later date). In which case the next progress payment/instalment will be required to be paid to SSPL to cover the value of the pool shell being held in stock.
6.3 Variations will be charged for on the basis of SSPL’s quotation, and will be detailed in writing, and shown as variations on SSPL’s invoice. The Customer shall be required to respond to any variation submitted by SSPL within ten (10) working days. Failure to do so will entitle SSPL 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.
6.4 At SSPL’s sole discretion a non-refundable deposit of thirty (30%) percent may be required.
6.5 Time for payment for the Goods being of the essence, the Price will be payable by the Customer on the date/s determined by SSPL, which may be: (a) on or before Delivery of the Goods;
(b) by way of instalments/progress payments in accordance with SSPL’s payment schedule. Such payment claims may include the value of the Services so performed and shall include the reasonable value of authorised variations, whether or not the value of such variations has finally been agreed between the parties, and the value of materials delivered to the site, or held in storage on the Customer’s behalf but not yet installed;
(c) the date specified on any invoice or other form as being the date for payment; or
(d) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Customer by SSPL.
6.6 Payment may be made by cheque, bank cheque, electronic/on-line banking, credit card (a surcharge per transaction may apply), or by any other method as agreed to between the Customer and SSPL.
6.7 At the agreement of both parties, payment of the Price may be subject to retention by the Customer of an amount (hereafter called the “Retention Money”), being a set amount or equal to a percentage of the Price. The Customer shall hold the Retention Money for the agreed period following completion of the Services during which time all Services are to be completed and/or all defects are to be remedied. Any Retention Money applicable to this Contract is to be dealt with in accordance with Subpart 2A – sections 18(a) to 18(i) of the Construction Contracts Amendment Act 2015 and as such no Retention Money shall be use other than to remedy defects in the performance of the Contractor’s obligations under the Contract.
6.8 SSPL may in its discretion allocate any payment received from the Customer towards any invoice that SSPL determines and may do so at the time of receipt or at any time afterwards. On any default by the Customer SSPL may re-allocate any payments previously received and allocated. In the absence of any payment allocation by SSPL, payment will be deemed to be allocated in such manner as preserves the maximum value of SSPL’s Purchase Money Security Interest (as defined in the PPSA) in the Goods.
6.9 The Customer shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Customer by SSPL nor to withhold payment of any invoice because part of that invoice is in dispute.
6.10 Unless otherwise stated, the Price includes GST, which is an amount equal to any GST SSPL must pay for any provision of Works by SSPL under this, or any other, agreement. The GST component must be paid by the Customer, 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.
7. Provision of the Services
7.1 At SSPL’s sole discretion the cost of delivery is in addition to the Price.
7.2 Subject to clause 7.3, it is SSPL’s responsibility to ensure that the Services start as soon as it is reasonably possible.
7.3 The Services commencement date will be put back and/or the completion date extended by whatever time is reasonable in the event that SSPL claims an extension of time (by giving the Customer written notice) where completion is delayed by an event beyond SSPL’s control, including but not limited to, any failure by the Customer to: (a) make a selection; or
(b) have the Worksite ready for the Services; or
(c) notify SSPL that the Worksite is ready.
7.4 Any time specified by SSPL for Delivery of the Goods is an estimate only and SSPL 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 shall 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 SSPL is unable to supply the Goods as agreed solely due to any action or inaction of the Customer, then SSPL shall be entitled to charge a reasonable fee for redelivery and/or storage.
8. Worksite Access and Condition
8.1 SSPL is not responsible for the removal of rubbish from or clean-up of the building/construction Worksite/s. All rubbish generated by SSPL will be placed in a designated area appointed by the Customer but the responsibility of removal of the same is the Customer or the Customer’s agent unless otherwise agreed.
8.2 It is the intention of SSPL and agreed by the Customer that:
(a) the Customer shall ensure that SSPL has clear and free access to the Worksite at all times to enable them to undertake the Services (including carrying out Worksite inspections, gain signatures for required documents, and for the delivery and installation of the Goods). SSPL shall not be liable for any loss or damage to the Worksite (including, without limitation, damage to pathways, driveways and concreted or paved or grassed areas) unless due to the negligence of SSPL;
(b) it is the Customer’s responsibility to provide SSPL, while at the Worksite, with adequate access to available water, electricity, toilet and washing facilities; and
(c) the Customer shall contact adjoining neighbours and gain their permission to remove any walls or fences on boundaries and unless otherwise agreed, it shall be the Customer’s responsibility to organise either temporary fencing and/or security guards to secure the worksite during the performance of the Services by SSPL and shall be liable for all costs associated in taking all reasonable precautions to protect against destruction or damage by way of vandalism or theft. Failure to comply with this clause
8.2(c) in the event that the Worksite is destroyed or damaged due to vandalism then the cost of repair or replacement shall be borne by the Customer.
8.3 The Customer agrees to be present at the Worksite when and as reasonably requested by SSPL and its employees, contractors and/or agents.
8.4 Worksite Inductions (a) in the event the Customer requires an employee or sub-contractor of SSPL to undertake a Worksite induction during working hours, the Customer will be liable to pay the hourly charges for that period. If any induction needs to be undertaken prior to the commencement date then the Customer shall be liable to pay SSPL’s standard (and/or overtime, if applicable) hourly labour rate; or
(b) where SSPL is in control of the Worksite, the Customer and/or the Customer’s third-party contractors must initially carry out SSPL’s Health & Safety induction course before access to the Worksite will be granted. Inspection of the Worksite during the course of the Services will be by appointment only and unless otherwise agreed, in such an event the Customer and/or third-party acting on behalf of the Customer must at all times be accompanied by SSPL.
9.1 If SSPL retains ownership of the Goods under clause 11 then: (a) where SSPL is supplying Goods only, all risk for the Goods shall immediately pass to the Customer on delivery and the Customer must insure the Goods on or before delivery. If any of the Goods are damaged or destroyed following delivery, but prior to ownership passing to the Customer, SSPL is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by SSPL is sufficient evidence of SSPL’s rights to receive the insurance proceeds without the need for any person dealing with SSPL to make further enquiries; and
(b) if the Customer requests SSPL to leave Goods outside SSPL’s premises for collection, or to deliver the Goods to an unattended location, then such Goods shall be left at the Customer’s sole risk. At SSPL’s sole discretion, any delivery costs shall be in addition to, the Price. Delivery of the Goods shall be deemed to have taken place immediately at the time that:
(i) the Customer or the Customer’s nominated carrier takes possession of the Goods at SSPL’s address; or
(ii) the Goods are delivered by SSPL or SSPL’s nominated carrier to the Worksite (even if the Customer is not present).
(c) where SSPL is to both supply and install Goods, then SSPL shall maintain a contract works insurance policy until the Services are completed. It is the Customer’s responsibility to ensure that they are similarly insured.
9.2 Notwithstanding the provisions of clause
9.1, where SSPL requires that Goods, fittings and appliances, or plant and tools required for the Services be stored at the Worksite, the Customer shall supply SSPL a safe area for storage and shall take all reasonable efforts to protect all items from possible destruction, theft or damage. In the event that any of the stored items are destroyed, stolen or damaged, then the cost of repair or replacement shall be the Customer’s responsibility.
9.3 Where SSPL gives advice or recommendations to the Customer, or the Customer’s agent, regarding the suitability of the Worksite for the Services, or the use of Goods for the Customer’s intended purpose, and such advice or recommendations are not acted upon, then SSPL shall: (a) require the Customer or their agent to authorise commencement of the Services in writing; and/or
(b) not be liable in any way whatsoever for any damages or losses that occur after any subsequent provision of the Services.
9.4 The Customer acknowledges that:
(a) Goods supplied may exhibit variations in shade, colour, texture, surface and finish, grain, markings, veining, and contain natural fissures, occlusions and indentations, and may fade or change colour over time. Whilst SSPL will make every effort to match batches of product supplied in order to minimise such variations, or sales sample to the finished Goods, SSPL accepts no liability whatsoever where such samples/batches differ to the finished Goods supplied; and
(b) Goods supplied may mark or stain if exposed to certain substances, and/or be damaged or disfigured by impact or scratching; and (c) timber is a hydroscopic material and may expand, contract or distort a result of exposure to heat, cold, weather, therefore SSPL will accept no responsibility for gaps that may appear during prolonged dry periods; and
(d) SSPL is only responsible for parts that are replaced by SSPL and does not at any stage accept any liability in respect of previous services and/or goods supplied by any other third party that subsequently fail and found to be the source of the failure, the Customer agrees to indemnify SSPL against any loss or damage to the Goods, or caused by the Goods, or any part thereof howsoever arising; and
(e) notwithstanding clause 9.1, Goods and/or Services the Customer, or the Customer’s sub-contractors, have supplied, including for SSPL to complete the Services, shall be at the sole risk of the Customer. Furthermore, the Customer accepts and agrees the responsibility for the suitability of purpose, quality and any faults inherent in those Goods and/or Services. SSPL shall not be responsible for any defects in those Goods and/or Services, or any loss or damage to the Services (or any part thereof), howsoever arising from the use of the Goods and/or Services; and
(f) SSPL does not accept liability for: (i) any inferior existing paintwork where SSPL’s paint has bonded to the existing paintwork and weakened the previous paint causing any kind of flake, crack or blemish; and
(ii) the quality of the Services (or any other work undertaken by the Customer or third party) if the Customer does not follow SSPL’s recommendations as to the number of coats of paint required to obtain the final finish and the Customer chooses to accept fewer coats of paint; and
(iii) any loss or damage to the Services (including, but not limited to, painted surfaces) that is caused by any other tradesmen; and
(iv) SSPL gives no guarantee (expressed or implied) against crazing, cracking, chipping or scratching that may occur that is beyond SSPL’s control due to the nature of the Goods at the time of installation, therefore it is recommended that the Customer allows for extra quantities for such breakages; and
(v) whilst SSPL will take all due care during installation, SSPL will not accept any responsibility for tiles or pavers damaged during installation; and
(vi) where fencing is installed on a retaining wall, SSPL shall not be liable for any movement in the fence due to consolidation, or the movement of soil or any other component of the retaining wall;
(g) SSPL shall not be responsible for digging land out under fence lines nor removal of soil from the Worksite.
9.5 SSPL will use reasonable endeavours to match the Goods to existing goods. However, the parties recognise that it may not be possible to provide an exact matching, and in such event there shall be no claim against SSPL.
9.6 SSPL gives no guarantee (expressed or implied) as to the length of time the curing process will take and/or against cracking of concrete that may occur naturally, such as: (a) hairline cracking of paving and grout; or
(b) damage caused by contact with chemicals, solvents, oils or any other substances; or
(c) the affects by elements such as heat exposure or wet weather conditions that prolong the curing process.
9.7 The Customer acknowledges and agrees that it is their responsibility to organise and be liable for all costs associated with protecting concrete and shall take all reasonable precautions to protect against destruction or damage by way of vandalism. In the event that concrete is destroyed or damaged due to vandalism, then the cost of repair or replacement shall be borne by the Customer.
9.8 SSPL shall not be liable for any defect in the Services if the Customer does not follow SSPL’s recommendation to: (a) water any concrete periodically to limit the risk of possible cracking due to weather conditions;
(b) ensure that no foot traffic and/or any vehicles be allowed on concrete for a minimum of forty-eight (48) hours but preferably seven (7) days;
(c) ensure that no heavy furniture be placed on new surfaces for a minimum of twenty-four (24) hours.
10. Customer’s Responsibilities
10.1 It shall be the Customer’s responsibility to:
(a) make the Worksite available on the agreed date/s and time/s. In the event SSPL is unable to provide the Services as agreed solely due to any action or inaction of the Customer (including any request by the Customer to delay the Services less than three (3) weeks from the agreed commencement date, or if the Services are delayed or interrupted by the failure of the Customer to adhere to the work schedule agreed to between SSPL and the Customer), any additional costs will be invoiced to the Customer as per clause 6.2;
(b) remove obstructions on the Worksite in order for the Services to be provided by SSPL (including clotheslines, etc.) and make good such items and all finished surfaces (including but not limited to, tiles and panels, brickwork and rendered masonry surfaces, etc.) which SSPL make reasonably have to break into, or disturb, in provision of the Services.
10.2 Unless otherwise agreed in writing between the Customer and SSPL, it shall be the Customer’s responsibility to, prior to SSPL commencing the Services, advise SSPL of the precise location of all underground services on the Worksite and clearly mark the same. The underground mains and 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, oil pumping mains, and any other services that may be on the Worksite. Whilst SSPL will take all care to avoid damage to any underground services the Customer agrees to indemnify SSPL 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 this clause 10.2.
10.3 Where the Customer supplies SSPL with any design specifications (including, but not limited to CAD drawings), the Customer shall be responsible for providing accurate data. SSPL shall not be liable whatsoever for any errors or omissions in the Services that are caused by incorrect or inaccurate data being supplied by the Customer.
10.4 Unless specified otherwise in this Contract, it is the Customer’s responsibility to:
(a) be on the Worksite to supervise the marking out of the fence line, placement of pegs and during the installation of the fence. If the Customer fails to comply with this clause then SSPL accepts no responsibility for installation decisions that need to be made by SSPL in the Customer’s absence;
(b) remove any existing fence (including existing footings), trees, vines and shrubs to allow SSPL clear access along the proposed fence line prior to commencement of the Services by SSPL, unless otherwise agreed in writing between SSPL and the Customer. Under no circumstances will SSPL handle removal of asbestos product; (c) provide SSPL with a suitable free power source;
(d) arrange the following: (i) diversion of any storm water, sewer or water supply pipe, electricity cable, telephone cable or gas pipes; and
(ii) thyne ripping or de-watering of the Worksite, (shoring pumping, etc.) and/or peering and beaming, including extra steel and concrete; and
(e) prepare any lawns, shrubs, plants and trees which are required for re-planting; and
(f) supply water for the filling of the pool; and
(g) arrange any installation of a new storm water, sewerage or water supply pipes, electricity cable, telephone cables, or gas pipes; and
(h) any fencing, water meters, vacuum breaker valves, etc. or any other requirements as may be imposed by local or state Government body as a requirement or condition or building consent application; and
(i) supply electricity to the filter-electrical installation for underwater light if applicable and earth wire connection; and
(j) advise the location of boundaries and the location, elevation and dimensions for the proposed site of the pool
(k) ensure that: (i) no pathways be built around pool, over filtration lines, whilst pool under construction. Keep pool isolated from outside structures;
(ii) any surface requiring waterproofing is suitable for the purpose. In the event that the Customer requests SSPL to prepare the surface for waterproofing, then at SSPL’s sole discretion a fee shall be charged for the Services, and shall become immediately due and payable;
(iii) no other tradesmen work on the membrane applied to the surface, until the membrane is fully dried and cured to manufacturer’s specifications. SSPL shall not be liable for any costs, damages or loss however arising from the Customer’s failure to comply with this clause.
10.5 Following installation, the care, maintenance and cleanliness of a pool shall be the responsibility of the Customer.
10.6 SSPL will not accept any liability for discolouration, staining or roughness which may occur to or upon the pool surfaced caused by algae infestation, calcium scales, weed or vegetation deposit or mineral build up.
10.7 The Customer accepts that some ground settling after installation of pools may occur and therefore also accepts that any settling that falls within industry and New Zealand Pool Standards shall not be considered a defect.
10.8 The Customer acknowledges that Goods supplied may: (a) fade or change colour over time; and
(b) expand, contract or distort as a result of exposure to heat, cold, weather; and
(c) mark or stain if exposed to certain substances; and
(d) be damaged or disfigured by impact or scratching.
11. Compliance with Laws
11.1 The Customer and SSPL shall comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities that may be applicable to the Services, including any WorkSafe health and safety laws relating or any other relevant safety standards or legislation pertaining to the Services. 11.2 Both parties acknowledge and agree: (a) to comply with the Building Act 2004 (including any subsequent Amendments) in respect of all workmanship and building products to be supplied during the course of the Services; and
(b) that Services will be provided in accordance with any current relevant Australian/New Zealand Standards applicable.
11.3 Where the Customer has supplied products for SSPL to complete the Services, the Customer acknowledges that it accepts responsibility for the suitability of purpose and use for their products and the Intended Use and any faults inherent in those products. However, if in SSPL’s opinion, it is believed that the materials supplied are Non-Conforming products and will not conform with New Zealand regulations, then SSPL shall be entitled, without prejudice, to halt the Services until the appropriate conforming products are sourced and all costs associated with such a change to the plans and design will be invoiced in accordance with clause 6.2.
11.4 The Customer shall obtain (at the expense of the Customer) all licenses and approvals that may be required for the Services.
11.5 Notwithstanding clause 11.1 and pursuant to the Health & Safety at Work Act 2015 (the “HSW Act”), SSPL agrees at all times to comply with sections 28 and 34 of the “HSW Act” with meeting their obligations for health and safety laws in the workplace regardless of whether they may be the party in control of the Worksite or where they may be acting as a sub-contractor for the Customer who has engaged a third party head contractor.
12.1 SSPL shall have public liability insurance of at least two million dollars ($2m). It is the Customer’s responsibility to ensure that they are similarly insured in respect of the swimming pool and/or its installation.
13.1 SSPL and the Customer agree that ownership of the Goods shall not pass until:
(a) the Customer has paid SSPL all amounts owing to SSPL; and
(b) the Customer has met all of its other obligations to SSPL.
13.2 Receipt by SSPL 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.
13.3 It is further agreed that until ownership of the Goods passes to the Customer in accordance with clause
(a) the Customer is only a bailee of the Goods and must return the Goods to SSPL on request;
(b) the Customer holds the benefit of the Customer’s insurance of the Goods on trust for SSPL and must pay to SSPL the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed;
(c) the production of these terms and conditions by SSPL shall be sufficient evidence of SSPL’s rights to receive the insurance proceeds direct from the insurer without the need for any person dealing with SSPL to make further enquiries;
(d) unless the Goods have become fixtures the Customer irrevocably authorises SSPL to enter any premises where SSPL believes the Materials are kept and recover possession of the Goods; (e) SSPL may recover possession of any Goods in transit whether or not Delivery has occurred;
(f) the Customer shall 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 SSPL; and
(g) SSPL may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Customer.
14. Personal Property Securities Act 1999 (“PPSA”)
14.1 Upon assenting to these terms and conditions in writing the Customer acknowledges and agrees that: (a) these terms and conditions constitute a security agreement for the purposes of the PPSA; and
(b) a security interest is taken in all Goods and/or collateral (account) – being a monetary obligation of the Customer to SSPL for Services – that have previously been supplied and that will be supplied in the future by SSPL to the Customer.
14.2 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 SSPL may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register;
(b) indemnify, and upon demand reimburse, SSPL for all 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 SSPL; and
(d) immediately advise SSPL 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.
14.3 SSPL and the Customer agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms and conditions.
14.4 The Customer waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, and 131 of the PPSA.
14.5 Unless otherwise agreed to in writing by SSPL, the Customer waives its right to receive a verification statement in accordance with section 148 of the PPSA.
14.6 The Customer shall unconditionally ratify any actions taken by SSPL under clauses 14.1 to 14.5.
14.7 Subject to any express provisions to the contrary (including those contained in this clause 14), nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.
15. Security and Charge
15.1 In consideration of SSPL 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).
15.2 The Customer indemnifies SSPL from and against all SSPL’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising SSPL’s rights under this clause.
15.3 The Customer irrevocably appoints SSPL and each director of SSPL as the Customer’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 15 including, but not limited to, signing any document on the Customer’s behalf.
16.1 The Customer shall inspect the Goods on Delivery and shall within seven (7) days of Delivery (time being of the essence) notify SSPL of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Customer shall afford SSPL an opportunity to inspect the Goods within a reasonable time following Delivery if the Customer believes the Goods are defective in any way. If the Customer shall fail to comply with these provisions the Goods shall be presumed to be free from any defect or damage. For defective Goods, which SSPL has agreed in writing that the Customer is entitled to reject, SSPL’s liability is limited to either (at SSPL’s discretion) replacing the Goods or repairing the Goods. 16.2 Goods will not be accepted for return other than in accordance with 16.1 above, and provided that: (a) SSPL has agreed in writing to accept the return of the Goods; and
(b) the Goods are returned at the Customer’s cost within seven (7) days of the Delivery date; and
(c) SSPL will not be liable for Goods which have not been stored or used in a proper manner; and
(d) 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.
16.3 SSPL will not accept the return of Goods for credit.
16.4 Subject to clause 16.1, non-stocklist items or Goods made to the Customer’s specifications are not acceptable for credit or return.
17.1 The Customer must inspect all Services on completion (or the Goods on delivery) and must within seven (7) days of such time notify SSPL in writing of any evident defect/damage, error or omission, shortage in quantity, or failure to comply with the description or quote. The Customer must afford SSPL an opportunity to inspect the Services within a reasonable time following such notification if the Customer believes the Services are defective in any way, and an exclusive right to offer remedy where the Services are found to be defective. If the Customer shall fail to comply with these provisions, the Services shall be presumed to be free from any defect or damage. For defective Services, which SSPL has agreed in writing that the Customer is entitled to reject, SSPL’s liability is limited to either (at SSPL’s discretion) rectify or re-provide the Services.
17.2 Subject to the conditions of warranty set out in clause 17.3, SSPL warrants that if any defect in any workmanship of SSPL becomes apparent and is reported to SSPL within three (3) months of the date of completion/delivery (time being of the essence) then SSPL will either (at SSPL’s sole discretion) replace or remedy the workmanship. 17.3 The conditions applicable to the warranty given by clause 17.2 are: (a) the warranty shall 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 in accordance with SSPL’s “Handover Manual” and the manufacturer’s documentation; or
(ii) failure on the part of the Customer to follow any instructions or guidelines provided by SSPL; 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 shall cease and SSPL shall thereafter in no circumstances be liable under the terms of the warranty if the workmanship is repaired, altered or overhauled without SSPL’s consent.
(c) in respect of all claims SSPL shall 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.
17.4 For Goods not manufactured by SSPL, the warranty shall be the current warranty provided by the manufacturer of the Goods. SSPL 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 Goods.
18. Consumer Guarantees Act 1993
18.1 If the Customer is acquiring Goods for the purposes of a trade or business, the Customer acknowledges that the provisions of the Consumer Guarantees Act 1993 (“CGA”) do not apply to the supply of Goods by SSPL to the Customer.
19. Intellectual Property
19.1 Where SSPL has designed, drawn or developed Goods for the Customer, then the copyright in any designs and drawings and documents shall remain the property of SSPL. Under no circumstances may such designs, drawings and documents be used without the express written approval of SSPL.
19.2 The Customer warrants that all designs, specifications or instructions given to SSPL will not cause SSPL to infringe any patent, registered design or trademark in the execution of the Customer’s order and the Customer agrees to indemnify SSPL against any action taken by a third party against SSPL in respect of any such infringement.
19.3 The Customer agrees that SSPL may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings or Goods which SSPL has created for the Customer.
20. Default and Consequences of Default
20.1 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 SSPL’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
20.2 If the Customer owes SSPL any money the Customer shall indemnify SSPL from and against all costs and disbursements incurred by SSPL in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, SSPL’s collection agency costs, and bank dishonour fees).
20.3 Further to any other rights or remedies SSPL may have under this Contract, if a Customer has made payment to SSPL, and the transaction is subsequently reversed, the Customer shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by SSPL under this clause 20 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Customer’s obligations under this Contract. 20.4 Without prejudice to SSPL’s other remedies at law SSPL shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to SSPL shall, whether or not due for payment, become immediately payable if: (a) any money payable to SSPL becomes overdue, or in SSPL’s opinion the Customer will be unable to make a payment when it falls due;
(b) the Customer has exceeded any applicable credit limit provided by SSPL;
(c) 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
(d) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer.
21.1 Without prejudice to any other remedies SSPL 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 Contract within ten (10) working days of receipt by the Customer of such notice/s) then under these terms and conditions, SSPL may suspend or terminate the supply of Goods to the Customer. SSPL will not be liable to the Customer for any loss or damage the Customer suffers because SSPL has exercised its rights under this clause.
21.2 SSPL may cancel any contract to which these terms and conditions apply, or cancel provision of Services, at any time before the Services have commenced (or Goods are delivered) by giving written notice to the Customer. On giving such notice SSPL shall repay to the Customer any sums paid in respect of the Price. SSPL shall not be liable for any loss or damage whatsoever arising from such cancellation. 21.3 In the event that the Customer cancels the provision of Services by SSPL, the Customer: (a) shall provide SSPL with written notice of such; and
(b) shall reimburse SSPL all expenses to date (including, but not limited to, labour, travel, Goods and equipment purchased), holding costs of any pool shell at above overdue payments interest rate (as per clause 20.1) until the pool shell is resold, and any work done on the Worksite. If the Worksite requires reinstatement to its original condition, all costs involved in carrying out that work are payable by the Customer.
21.4 Cancellation of orders for Goods made to the Customer’s specifications, or for non-stocklist items, will definitely not be accepted once production has commenced, or an order has been placed.
22.1 All emails, documents, images or other recorded information held or used by SSPL is Personal Information as defined and referred to in clause 22.3 and therefore considered confidential. SSPL acknowledges its obligation in relation to the handling, use, disclosure and processing of Personal Information pursuant to the Privacy Act 2020 (“the Act”) including Part II of the OECD Guidelines and as set out in Schedule 8 of the Act and any statutory requirements where relevant in a European Economic Area “EEA” under the EU Data Privacy Laws (including the General Data Protection Regulation “GDPR”) (collectively, “EU Data Privacy Laws”). SSPL acknowledges that in the event it becomes aware of any data breaches and/or disclosure of the Customer’s Personal Information, held by SSPL that may result in serious harm to the Customer, SSPL will notify the Customer in accordance with the Act and/or the GDPR. Any release of such personal information must be in accordance with the Act and the GDPR (where relevant) and must be approved by the Customer by written consent, unless subject to an operation of law. 22.2 Notwithstanding clause 22.1, privacy limitations will extend to SSPL in respect of cookies where the Customer utilises SSPL’s website to make enquiries. SSPL agrees to display reference to such cookies and/or similar tracking technologies, such as pixels and web beacons (if applicable), such technology allows the collection of Personal Information such as the Customer’s: (a) IP address, browser, email client type and other similar details;
(b) tracking website usage and traffic; and
(c) reports are available to SSPL when SSPL sends an email to the Customer, so SSPL may collect and review that information (“collectively Personal Information”)
22.3 The Customer authorises SSPL or SSPL’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 (email, Facebook or Twitter details), medical insurance details or next of kin and other contact information (where applicable), 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 SSPL from the Customer directly or obtained by SSPL 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.
22.4 Where the Customer is an individual the authorities under clause 22.3 are authorities or consents for the purposes of the Privacy Act 2020.
22.5 The Customer shall have the right to request (by e-mail) from SSPL, a copy of the Personal Information about the Customer retained by SSPL and the right to request that SSPL correct any incorrect Personal Information.
22.6 SSPL will destroy Personal Information upon the Customer’s request (by e-mail) or if it is no longer required unless it is required in order to fulfil the obligations of this Contract or is required to be maintained and/or stored in accordance with the law.
22.7 The Customer can make a privacy complaint by contacting SSPL via e-mail. SSPL will respond to that complaint within seven (7) days of receipt and will take all reasonable steps to make a decision as to the complaint within twenty (20) days of receipt of the complaint. In the event that the Customer is not satisfied with the resolution provided, the Customer can make a complaint to the Information Commissioner at http://www.privacy.org.nz.
23. Suspension of Services
23.1 Where the Contract is subject to section 24A of the Construction Contracts Act 2002, the Customer hereby expressly acknowledges that: (a) SSPL 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: (i) the payment is not paid in full by the due date for payment in accordance with clause 6.5 and/or any subsequent amendments or new legislation and no payment schedule has been given by the Customer; or
(ii) 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
(iii) the Customer has not complied with an adjudicator’s notice that the Customer must pay an amount to SSPL by a particular date; and
(iv) SSPL has given written notice to the Customer of its intention to suspend the carrying out of construction work under the construction Contract.
(b) if SSPL suspends work, it: (i) is not in breach of Contract; 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 Contract; and
(iv) keeps its rights under the Contract including the right to terminate the Contract; 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 SSPL exercises the right to suspend work, the exercise of that right does not: (i) affect any rights that would otherwise have been available to SSPL 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 SSPL suspending work under this provision;
(d) due to any act or omission by the Customer, the Customer effectively precludes SSPL from continuing the Services or performing or complying with SSPL’s obligations under this Contract, then without prejudice to SSPL’s other rights and remedies, SSPL 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 SSPL as a result of such suspension and recommencement shall be payable by the Customer as if they were a variation.
23.2 If pursuant to any right conferred by this Contract, SSPL suspends the Services and the default that led to that suspension continues un-remedied subject to clause 21.1 for at least ten (10) working days, SSPL shall be entitled to terminate the Contract, in accordance with clause 21.
24. Service of Notices
24.1 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 as stated in this Contract;
(d) if sent by facsimile transmission to the fax number of the other party as stated in this Contract (if any), on receipt of confirmation of the transmission;
(e) if sent by email to the other party’s last known email address.
24.2 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.
25.1 If the Customer 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 SSPL may have notice of the Trust, the Customer covenants with SSPL as follows:
(a) the Contract extends to all rights of indemnity which the Customer now or subsequently may have against the Trust and the trust fund;
(b) the Customer 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 Customer against the Trust or the trust fund. The Customer 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 Customer will not without consent in writing of SSPL (SSPL will not unreasonably withhold consent), cause, permit, or suffer to happen any of the following events: (i) the removal, replacement or retirement of the Customer as trustee of the Trust;
(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.
26.1 Any dispute or difference arising as to the interpretation of these terms and conditions or as to any matter arising herein, shall be submitted to, and settled by, mediation before resorting to any external dispute resolution mechanisms (including arbitration or court proceedings) by notifying the other party in writing setting out the reason for the dispute. The parties shall share equally the mediator’s fees. Should mediation fail to resolve the dispute, the parties shall be free to pursue other dispute resolution avenues.
26.2 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.
26.3 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 Queenstown Courts of New Zealand.
26.4 Except to the extent permitted by law “CGA”, SSPL shall 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 arising out of a breach by SSPL of these terms and conditions (alternatively SSPL’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Goods).
26.5 SSPL may licence and/or assign all or any part of its rights and/or obligations under this Contract without the Customer’s consent.
26.6 The Customer cannot licence or assign without the written approval of SSPL.
26.7 SSPL may elect to subcontract out any part of the Services but shall not be relieved from any liability or obligation under this Contract by so doing. Furthermore, the Customer agrees and understands that they have no authority to give any instruction to any of SSPL’s sub-contractors without the authority of SSPL.
26.8 The Customer agrees that SSPL may amend their general terms and conditions for subsequent future contracts with the Customer by disclosing such to the Customer in writing. These changes shall 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 SSPL to provide Goods to the Customer.
26.9 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm, national or global pandemics and/or the implementation of regulation, directions, rules or measures being enforced by Governments or embargo, including but not limited to, any Government imposed border lockdowns (including, worldwide destination ports), etc, (“Force Majeure”) or other event beyond the reasonable control of either party.
26.10 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.