BOP Digger Services Limited – 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 “BOP Diggers” means BOP Digger Services Limited, its successors and assigns or any person acting on behalf of and with the authority of BOP Digger Services Limited.
- 1.3 “Customer” means the person/s, entities or any person acting on behalf of and with the authority of the Customer requesting BOP Diggers to provide the Works 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 “Works” means all Works (including consultation, manufacturing and/or installation services) or Materials supplied by BOP Diggers to the Customer at the Customer’s request from time to time (where the context so permits the terms ‘Works’ or ‘Materials’ shall be interchangeable for the other).
- 1.5 "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.
- 1.6 “Cookies” means small files which are stored on a user’s computer. They are designed to hold a modest amount of data (including Personal Information) specific to a particular client and website, and can be accessed either by the web server or the client’s computer. If the Customer does not wish to allow Cookies to operate in the background when ordering from the website, then the Customer shall have the right to enable / disable the Cookies first by selecting the option to enable / disable provided on the website, prior to ordering Works via the website.
- 1.7 “Price” means the Price payable (plus any Goods and Services Tax (“GST”) where applicable) for the Works as agreed between BOP Diggers and the Customer in accordance with clause 6 below.
- 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 any Works.
- 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 that the supply of Works on credit shall not take effect until the Customer has completed a credit application with BOP Diggers and it has been approved with a credit limit established for the account.
- 2.5 In the event that the supply of Works request exceeds the Customers credit limit and/or the account exceeds the payment terms, BOP Diggers reserves the right to refuse delivery.
- 2.6 If Pseudomonas syringae pv. actinidiae (Psa) or Mycoplasma bovis is present onsite, it is the Customer’s responsibility to inform BOP Diggers of the same. The Customer must provide BOP Diggers with the appropriate facilities to comply with local Psa or Mycoplasma decontamination regulations.
- 2.7 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. Errors and Omissions
- 3.1 The Customer acknowledges and accepts that BOP Diggers 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 BOP Diggers 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 BOP Diggers in respect of the Works.
- 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 BOP Diggers; the Customer shall not be entitled to treat this Contract as repudiated nor render it invalid.
- 4.1 Unless otherwise limited as per clause 4.2 the Customer agrees that should the Customer introduce any third party to BOP Diggers as the Customer’s duly authorised representative, that once introduced that person shall have the full authority of the Customer to order any Materials or Works on the Customer’s behalf and/or to request any variation to the Works on the Customer’s behalf (such authority to continue until all requested Works have been completed or the Customer otherwise notifies BOP Diggers in writing that said person is no longer the Customer’s duly authorised representative).
- 4.2 In the event that the Customer’s duly authorised representative as per clause 4.1 is to have only limited authority to act on the Customer’s behalf, then the Customer must specifically and clearly advise BOP Diggers in writing of the parameters of the limited authority granted to their representative.
- 4.3 The Customer specifically acknowledges and accepts that they will be solely liable to BOP Diggers for all additional costs incurred by BOP Diggers (including BOP Diggers’ profit margin) in providing any Works, Materials or variation/s requested by the Customer’s duly authorised representative (subject always to the limitations imposed under clause 4.2 (if any)).
5. Change in Control
- 5.1 The Customer shall give BOP Diggers 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 fax number/s, change of trustees, or business practice). The Customer shall be liable for any loss incurred by BOP Diggers as a result of the Customer’s failure to comply with this clause.
6. Price and Payment
- 6.1 At BOP Diggers’ sole discretion the Price shall be either:
- (a) as indicated on invoices provided by BOP Diggers to the Customer in respect of Works performed or Materials supplied; or
- (b) BOP Diggers’ quoted Price (subject to clause 6.2) which shall be binding upon BOP Diggers provided that the Customer shall accept BOP Diggers’ quotation in writing within thirty (30) days.
- 6.2 BOP Diggers reserves the right to change the Price:
- (a) if a variation to the Materials which are to be supplied is requested; or
- (b) if a variation to the Works originally scheduled (including any applicable plans or specifications) is requested; or
- (c) where additional Works are required due to the discovery of hidden or unidentifiable difficulties (including, but not limited to, poor weather, limitations to accessing the site, obscured building defects, incorrect measurements provided by the Customer, safety considerations (discovery of asbestos, etc.), removal of excessive fill, the requirement for additional fill, tipping fees, prerequisite work by any third party not being completed, lack of required utilities, remedial work required due to existing workmanship being of a poor quality or non-compliant to the building code, hard rock barriers or tree roots below the surface or iron reinforcing rods in concrete or hidden pipes and wiring in walls, etc.) which are only discovered on commencement of the Works; or
- (d) in the event of increases to BOP Diggers in the cost of labour or materials which are beyond BOP Diggers’ control.
- 6.3 Variations will be charged for on the basis of BOP Diggers’ quotation, and will be detailed in writing, and shown as variations on BOP Diggers’ invoice. The Customer shall be required to respond to any variation submitted by BOP Diggers within ten (10) working days. Failure to do so will entitle BOP Diggers 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 BOP Diggers’ sole discretion a non-refundable deposit may be required.
- 6.5 Time for payment for the Works being of the essence, the Price will be payable by the Customer on the date/s determined by BOP Diggers, which may be:
- (a) on completion of the Works; or
- (b) by way of progress payments in accordance with BOP Diggers’ specified progress payment schedule. Such progress payment claims may include the reasonable value of authorised variations and the value of any Materials delivered to the worksite but not yet installed;
- (c) for certain approved Customer’s, due twenty (20) days following the end of the month in which a statement is posted to the Customer’s address or address for notices;
- (d) the date specified on any invoice or other form as being the date for payment; or
- (e) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Customer by BOP Diggers.
- 6.6 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 Works during which time all Works 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 section 18(a) to 18(i) of the Construction Contracts Act 2002.
- 6.7 Payment may be made by cheque, electronic/on-line banking, or by any other method as agreed to between the Customer and BOP Diggers.
- 6.8 BOP Diggers may in its discretion allocate any payment received from the Customer towards any invoice that BOP Diggers determines and may do so at the time of receipt or at any time afterwards. On any default by the Customer BOP Diggers may re-allocate any payments previously received and allocated. In the absence of any payment allocation by BOP Diggers, payment will be deemed to be allocated in such manner as preserves the maximum value of BOP Diggers’ Purchase Money Security Interest (as defined in the PPSA) in the Materials.
- 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 BOP Diggers nor to withhold payment of any invoice because part of that invoice is in dispute, unless the request for payment by BOP Diggers is a claim made under the Construction Contracts Act 2002.
- 6.10 Unless otherwise stated the Price does not include GST. In addition to the Price, the Customer must pay to BOP Diggers an amount equal to any GST BOP Diggers must pay for any supply by BOP Diggers under this or any other agreement for the sale of the Materials. 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.
7. Provision of the Works
- 7.1 Subject to clause 7.2 it is BOP Diggers’ responsibility to ensure that the Works start as soon as it is reasonably possible.
- 7.2 The Works’ commencement date will be put back and the completion date extended by whatever time is reasonable in the event that BOP Diggers claims an extension of time (by giving the Customer written notice) where completion is delayed by an event beyond BOP Diggers’ control, including but not limited to any failure by the Customer to:
- (a) make a selection; or
- (b) have the site ready for the Works; or
- (c) notify BOP Diggers that the site is ready.
- 7.3 The cost of delivery of the Materials/Works and/or removal of debris is in addition to the Price.
- 7.4 BOP Diggers may deliver the Works by separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.
- 7.5 Any time specified by BOP Diggers for delivery of the Works is an estimate only and BOP Diggers 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 Works to be supplied at the time and place as was arranged between both parties. In the event that BOP Diggers is unable to supply the Works as agreed solely due to any action or inaction of the Customer, then BOP Diggers shall be entitled to charge a reasonable fee for re-supplying the Works at a later time and date, and/or for storage of the Materials.
8. Dimensions, Plans and Specifications
- 8.1 BOP Diggers shall be entitled to rely on the accuracy of any plans, specifications and other information provided by the Customer. The Customer acknowledges and agrees that in the event that any of this information provided by the Customer is inaccurate, BOP Diggers accepts no responsibility for any loss, damages, or costs however resulting from these inaccurate plans, specifications or other information.
- 8.2 All customary building industry tolerances shall apply to the dimensions and measurements of the Works unless BOP Diggers and the Customer agree otherwise in writing.
- 8.3 Where the Customer is to supply BOP Diggers with any design specifications (including, but not limited to CAD drawings) the Customer shall be responsible for providing accurate data. BOP Diggers shall not be liable whatsoever for any errors in the Works that are caused by incorrect or inaccurate data being supplied by the Customer.
- 8.4 In the event the Customer gives information relating to measurements and quantities of Materials required in completing the Works, it is the Customer’s responsibility to verify the accuracy of the measurements and quantities, before the Customer or BOP Diggers places an order based on these measurements and quantities. BOP Diggers accepts no responsibility for any loss, damages, or costs however resulting from the Customer’s failure to comply with this clause.
- 9.1 If BOP Diggers retains ownership of the Materials under clause 14 then:
- (a) where BOP Diggers is supplying Materials only, all risk for the Materials shall immediately pass to the Customer on delivery and the Customer must insure the Materials on or before delivery. Delivery of the Materials shall be deemed to have taken place immediately at the time that either;
- (i) the Customer or the Customer’s nominated carrier takes possession of the Materials at BOP Diggers’ address; or
- (ii) the Materials are delivered by BOP Diggers or BOP Diggers’ nominated carrier to the Customer’s nominated delivery address (even if the Customer is not present at the address).
- (b) where BOP Diggers is to both supply and install Materials then BOP Diggers shall maintain a contract works insurance policy until the Works are completed. Upon completion of the Works all risk for the Works shall immediately pass to the Customer.
- 9.2 Notwithstanding the provisions of clause 9.1 if the Customer specifically requests BOP Diggers to leave Materials outside BOP Diggers’ premises for collection or to deliver the Materials to an unattended location then such materials shall always be left at sole risk of the Customer and it shall be the Customer’s responsibility to ensure the Materials are insured adequately or at all. In the event that such Materials are lost, damaged or destroyed then replacement of the Materials shall be at the Customer’s expense.
- 9.3 Where the Customer has supplied materials for BOP Diggers to complete the Works, the Customer acknowledges and accepts responsibility for the suitability of purpose, quality and any faults inherent in the materials. BOP Diggers shall not be responsible for any defects in the Works, any loss or damage to the materials (or any part thereof), howsoever arising from the use of materials supplied by the Customer.
- 9.4 Any advice, recommendation, information, assistance or service provided by BOP Diggers in relation to Works provided is given in good faith, is based on BOP Diggers own knowledge and experience and shall be accepted without liability on the part of BOP Diggers 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 Works.
- 9.5 In the event that:
- (a) during the course of the Works BOP Diggers discovers any fossils, artefacts or any other remains of geological or archaeological interest are discovered BOP Diggers reserves the right to halt all Works, remove any of their equipment from the Worksite and immediately notify the Customer. Unless subject to clause 27.8, the Customer accepts and agrees that all additional costs that may be incurred by BOP Diggers as a result of any such delays (including but not limited to in the event BOP Diggers is unable to remove their equipment from the Worksite, etc.) shall be borne by the Customer and shall be treated as a variation in accordance with clause 6.2; and/or
- (b) BOP Diggers discovers any undisclosed waste and/or hazardous materials then BOP Diggers reserves the right to halt all Works and immediately notify the Customer. It shall be the responsibility of the Customer to arrange the removal of all such materials. In the event that BOP Diggers agrees to remove such materials for the Customer then this shall be treated as a variation in accordance with clause 6.2 and shall be in addition to the Price.
- 9.6 It is acknowledged between the parties that BOP Diggers will carry out in a reasonable way the clean up after the Works have been completed with the removal of any debris, but it is acknowledged between both parties that it is unreasonable for such clean up and/or removal of such debris to restore the property to its pre-existing condition. Some debris will remain, which will be the Customer’s responsibility.
- 9.7 The final location of the exact drilling or excavation site must be determined on site by the Customer and is the Customer’s sole responsibility.
- 9.8 If during the drilling operation, and as a result of extraordinary down hole issues, BOP Diggers decides (based on industry experience) that the risk is too great to continue the hole, BOP Diggers shall advise the Customer, or the Customer’s agent, regarding the risk of continuing. Where such advice is not acted on, and BOP Diggers is requested to continue, then BOP Diggers shall require the Customer or their agent to authorise the continuance of the Works in writing. BOP Diggers shall not be liable in any way whatsoever for any damages or losses that occur after any subsequent continuance of the Works, and the Customer shall reimburse BOP Diggers for any equipment lost at the landed, new cost price of the replacement equipment.
- 9.9 The Customer agrees to indemnify BOP Diggers from any damage caused by any other tradesman during and after the completion of the Works. If the Customer instructs BOP Diggers to rectify any damage caused by any other tradesman, this will become a variation to the original quotation and will be charged at BOP Diggers normal hourly rate as per clause 6.2.
- 9.10 BOP Diggers will take all reasonable precautions against fire during site gas cutting, welding, and other installation procedures. Insurance of buildings and contents etc., and any items installed during installation shall be the responsibility of the Customer.
10. Customer’s Responsibilities
- 10.1 The Customer agrees to remove any items from the vicinity of the Works and agrees that BOP Diggers shall not be liable for any damage caused to those items through the Customer’s failure to comply with this clause.
- 10.2 It shall be the Customer’s responsibility (where applicable) to ensure that, prior to commencement of the Works by BOP Diggers:
- (a) all gas and electricity are cancelled and disconnected (from the main supply at the street); and
- (b) a safety fence is erected around the perimeter of the site to ensure public safety; and
- (c) investigate local laws in relation to the pruning and/or removal of trees, and (where necessary) obtain (at the expense of the Customer) all permits, licenses and approvals that may be required for the Works. Temporary fences may need to be erected around the circumference of the tree, and if so, the Customer shall arrange the erection in conjunction with BOP Diggers; and
- (d) the Customer will supply temporary lighting, telecommunications, compressed air, lighting, toilet, waste disposal amenities, eating and first aid facilities if required; and
- 10.3 Notwithstanding clause 10.2(c) the Customer acknowledges and agrees to advise BOP Diggers prior to commencement of any Works where the removal of any trees may be subject to a protection order and/or on a heritage list and warrants to ensure that BOP Diggers Works will comply with the relevant restrictions, legislation and/or by-laws. BOP Diggers shall not be liable for any loss, expense or damage suffered by the Customer in relation to the Works where resulting from the Customer’s non-compliance with this clause.
- 10.4 Where the Customer has instructed BOP Diggers to excavate areas for the use of water features such as swimming pools and ponds, the Customer acknowledges and accepts that the Customer is solely responsible for any fencing requirements around such constructions as per the Building (Pools) Amendment Act 2016.
- 11.1 The Customer shall ensure that BOP Diggers has clear and free access to the site at all times to enable them to undertake the Works, and that such access is suitable to accept the weight of laden trucks, front end loaders or other earth moving equipment as may be deemed necessary by BOP Diggers. BOP Diggers shall 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 BOP Diggers.
12. Underground Locations and Hidden Services
- 12.1 Prior to BOP Diggers commencing any work the Customer must advise BOP Diggers of the precise location of all underground services on the site and clearly mark the same. The underground 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, oil pumping mains, and any other services that may be on site.
- 12.2 Whilst BOP Diggers will take all care to avoid damage to any underground services the Customer agrees to indemnify BOP Diggers 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 12.1.
13. Compliance with Laws
- 13.1 The Customer and BOP Diggers shall comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities that may be applicable to the Works including any WorkSafe health and safety laws relating or any other relevant safety standards or legislation pertaining to the Works.
- 13.2 The Customer shall obtain (at the expense of the Customer) all licenses and approvals that may be required for the Works.
- 13.3 Notwithstanding clause 13.1 and pursuant to the Health & Safety at Work Act 2015 (the “HSW Act”) BOP Diggers 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 site or where they may be acting as a subcontractor for the Customer who has engaged a thirty party head contractor.
- 13.4 The Customer shall advise BOP Diggers of the precise location of all known risks present at the site, and where applicable, induct BOP Diggers’ workers (including any sub-contractors as required), on:
- (a) any WorkSafe management system;
- (b) site safety expectations;
- (c) emergency provisions;
- (d) risks and their control measures; and
- (e) incident reporting expectations.
- 14.1 BOP Diggers and the Customer agree that ownership of the Materials shall not pass until:
- (a) the Customer has paid BOP Diggers all amounts owing to BOP Diggers; and
- (b) the Customer has met all of its other obligations to BOP Diggers.
- 14.2 Receipt by BOP Diggers 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.
- 14.3 It is further agreed that:
- (a) until ownership of the Materials passes to the Customer in accordance with clause 14.1 that the Customer is only a bailee of the Materials and unless the Materials have become fixtures must return the Materials to BOP Diggers on request;
- (b) the Customer holds the benefit of the Customer’s insurance of the Materials on trust for BOP Diggers and must pay to BOP Diggers 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 BOP Diggers shall be sufficient evidence of BOP Diggers’ rights to receive the insurance proceeds direct from the insurer without the need for any person dealing with BOP Diggers to make further enquiries;
- (d) the Customer 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 Customer sells, disposes or parts with possession of the Materials then the Customer must hold the proceeds of any such act on trust for BOP Diggers and must pay or deliver the proceeds to BOP Diggers on demand;
- (e) the Customer should not convert or process the Materials 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 BOP Diggers and must sell, dispose of or return the resulting product to BOP Diggers as it so directs;
- (f) unless the Materials have become fixtures the Customer irrevocably authorises BOP Diggers to enter any premises where BOP Diggers believes the Materials are kept and recover possession of the Materials;
- (g) BOP Diggers may recover possession of any Materials in transit whether or not delivery has occurred;
- (h) the Customer 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 BOP Diggers;
- (i) BOP Diggers may commence proceedings to recover the Price of the Materials sold notwithstanding that ownership of the Materials has not passed to the Customer.
15. Personal Property Securities Act 1999 (“PPSA”)
- 15.1 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 Materials and/or collateral (account) – being a monetary obligation of the Customer to BOP Diggers for Works – that have previously been supplied and that will be supplied in the future by BOP Diggers to the Customer.
- 15.2 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 BOP Diggers may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register;
- (b) indemnify, and upon demand reimburse, BOP Diggers 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 BOP Diggers; and
- (d) immediately advise BOP Diggers 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.
- 15.3 BOP Diggers and the Customer agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms and conditions.
- 15.4 The Customer waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, and 131 of the PPSA.
- 15.5 Unless otherwise agreed to in writing by BOP Diggers, the Customer waives its right to receive a verification statement in accordance with section 148 of the PPSA.
- 15.6 The Customer shall unconditionally ratify any actions taken by BOP Diggers under clauses 15.1 to 15.5.
- 15.7 Subject to any express provisions to the contrary (including those contained in this clause 15), nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.
16. Security and Charge
- 16.1 In consideration of BOP Diggers agreeing to supply the Works, 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).
- 16.2 The Customer indemnifies BOP Diggers from and against all BOP Diggers’ costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising BOP Diggers’ rights under this clause.
- 16.3 The Customer irrevocably appoints BOP Diggers and each director of BOP Diggers as the Customer’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 16 including, but not limited to, signing any document on the Customer’s behalf.
17. Defects and Returns
- 17.1 The Customer shall inspect the Materials on delivery and shall within seven (7) days of delivery (time being of the essence) notify BOP Diggers of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Customer shall afford BOP Diggers an opportunity to inspect the Materials within a reasonable time following delivery if the Customer believes the Materials are defective in any way. If the Customer shall fail to comply with these provisions the Materials shall be presumed to be free from any defect or damage. For defective Materials, which BOP Diggers has agreed in writing that the Customer is entitled to reject, BOP Diggers’s liability is limited to either (at BOP Diggers’ discretion) replacing the Materials or repairing the Materials.
- 17.2 Materials will not be accepted for return other than in accordance with 17.1 above.
- 17.3 Returns will only be accepted provided that:
- (a) the Customer has complied with the provisions of clause 17.1; and
- (b) BOP Diggers has agreed in writing to accept the return of the Materials; and
- (c) the Materials are returned at the Customer’s cost within seven (7) days of the delivery date; and
- (d) BOP Diggers will not be liable for Materials which have not been stored or used in a proper manner; and
- (e) the Materials 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.
- 17.4 Non-stocklist items or Materials made to the Customer’s specifications are under no circumstances acceptable for credit or return.
- 18.1 For Materials not manufactured by BOP Diggers, the warranty shall be the current warranty provided by the manufacturer of the Materials. BOP Diggers 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.
- 18.2 In the case of second hand Materials, the Customer acknowledges that full opportunity to inspect the same has been provided and accepts the same with all faults and that no warranty is given by BOP Diggers as to the quality or suitability for any purpose and any implied warranty, statutory or otherwise, is expressly excluded. BOP Diggers shall not be responsible for any loss or damage to the Materials, or caused by the Materials, or any part thereof however arising.
19. Consumer Guarantees Act 1993
- 19.1 If the Customer is acquiring Materials for the purposes of a trade or business, the Customer acknowledges that the provisions of the Consumer Guarantees Act 1993 do not apply to the supply of Materials by BOP Diggers to the Customer.
20. Intellectual Property
- 20.1 Where BOP Diggers has designed, drawn, written plans or a schedule of Works, or created any products for the Customer, then the copyright in all such designs, drawings, documents, plans, schedules and products shall remain vested in BOP Diggers, and shall only be used by the Customer at BOP Diggers’ discretion. Under no circumstances may such designs, drawings and documents be used without the express written approval of BOP Diggers.
- 20.2 The Customer warrants that all designs, specifications or instructions given to BOP Diggers will not cause BOP Diggers to infringe any patent, registered design or trademark in the execution of the Customer’s order and the Customer agrees to indemnify BOP Diggers against any action taken by a third party against BOP Diggers in respect of any such infringement.
- 20.3 The Customer agrees that BOP Diggers may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings, plans or products which BOP Diggers has created for the Customer.
21. Default and Consequences of Default
- 21.1 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 BOP Diggers’ sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
- 21.2 If the Customer owes BOP Diggers any money the Customer shall indemnify BOP Diggers from and against all costs and disbursements incurred by BOP Diggers in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, BOP Diggers’ collection agency costs, and bank dishonour fees).
- 21.3 Further to any other rights or remedies BOP Diggers may have under this Contract, if a Customer has made payment to BOP Diggers, 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 BOP Diggers under this clause 21, 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.
- 21.4 Without prejudice to BOP Diggers’ other remedies at law BOP Diggers shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to BOP Diggers shall, whether or not due for payment, become immediately payable if:
- (a) any money payable to BOP Diggers becomes overdue, or in BOP Diggers’ 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 BOP Diggers;
- (c) the Customer 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 Customer or any asset of the Customer.
- 22.1 Without prejudice to any other rights or remedies BOP Diggers 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 BOP Diggers may suspend the Works immediately. BOP Diggers will not be liable to the Customer for any loss or damage the Customer suffers because BOP Diggers has exercised its rights under this clause.
- 22.2 BOP Diggers 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 Customer. On giving such notice BOP Diggers shall repay to the Customer any sums paid in respect of the Price, less any amounts owing by the Customer to BOP Diggers for Works already performed. BOP Diggers shall not be liable for any loss or damage whatsoever arising from such cancellation.
- 22.3 In the event that the Customer cancels the delivery of Works the Customer shall be liable for any and all loss incurred (whether direct or indirect) by BOP Diggers as a direct result of the cancellation (including, but not limited to, any loss of profits).
- 22.4 Cancellation of orders for products 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.
- 23.1 All emails, documents, images or other recorded information held or used by BOP Diggers is Personal Information as defined and referred to in clause 23.3 and therefore considered confidential. BOP Diggers acknowledges its obligation in relation to the handling, use, disclosure and processing of Personal Information pursuant to the Privacy Act 1993 (“the Act”) including Part II of the OECD Guidelines and as set out in Schedule 5A of the Act and any statutory requirements where relevant in a European Economic Area “EEA” then the EU Data Privacy Laws (including the General Data Protection Regulation “GDPR”) (collectively, “EU Data Privacy Laws”). BOP Diggers acknowledges that in the event it becomes aware of any data breaches and/or disclosure of the Customers Personal Information, held by BOP Diggers that may result in serious harm to the Customer, BOP Diggers 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.
- 23.2 Notwithstanding clause 23.1, privacy limitations will extend to BOP Diggers in respect of Cookies where transactions for purchases/orders transpire directly from BOP Diggers’ website. BOP Diggers 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 BOP Diggers when BOP Diggers sends an email to the Customer, so BOP Diggers may collect and review that information (“collectively Personal Information”)
- In order to enable / disable the collection of Personal Information by way of Cookies, the Customer shall have the right to enable / disable the Cookies first by selecting the option to enable / disable, provided on the website prior to proceeding with a purchase/order via BOP Diggers’ website.
- 23.3 The Customer authorises BOP Diggers or BOP Diggers’ 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 BOP Diggers from the Customer directly or obtained by BOP Diggers 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.
- 23.4 Where the Customer is an individual the authorities under clause 23.3 are authorities or consents for the purposes of the Privacy Act 1993.
- 23.5 The Customer shall have the right to request BOP Diggers for a copy of the Personal Information about the Customer retained by BOP Diggers and the right to request BOP Diggers to correct any incorrect Personal Information about the Customer held by BOP Diggers.
24. Suspension of Works
- 24.1 Where the Contract is subject to the Construction Contracts Act 2002, the Customer hereby expressly acknowledges that:
- (a) BOP Diggers 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 BOP Diggers by a particular date; and
- (iv) BOP Diggers has given written notice to the Customer of its intention to suspend the carrying out of construction work under the construction Contract.
- (b) if BOP Diggers 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 BOP Diggers exercises the right to suspend work, the exercise of that right does not:
- (i) affect any rights that would otherwise have been available to BOP Diggers 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 BOP Diggers suspending work under this provision;
- (d) due to any act or omission by the Customer, the Customer effectively precludes BOP Diggers from continuing the Works or performing or complying with BOP Diggers’ obligations under this Contract, then without prejudice to BOP Diggers’ other rights and remedies, BOP Diggers may suspend the Works 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 Works is based. All costs and expenses incurred by BOP Diggers as a result of such suspension and recommencement shall be payable by the Customer as if they were a variation.
- 24.2 If pursuant to any right conferred by this Contract, BOP Diggers suspends the Works and the default that led to that suspension continues un-remedied subject to clause 22.1 for at least ten (10) working days, BOP Diggers shall be entitled to terminate the Contract, in accordance with clause 22.
25. Service of Notices
- 25.1 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.
- 25.2 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.
- 26.1 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 BOP Diggers may have notice of the Trust, the Customer covenants with BOP Diggers 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 BOP Diggers (BOP Diggers 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.
- 27.1 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).
- 27.2 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.
- 27.3 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 Tauranga in New Zealand.
- 27.4 BOP Diggers 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 BOP Diggers of these terms and conditions (alternatively BOP Diggers’ liability shall be limited to damages which under no circumstances shall exceed the Price of the Works).
- 27.5 BOP Diggers may licence and/or assign all or any part of its rights and/or obligations under this Contract without the Customer’s consent.
- 27.6 The Customer cannot licence or assign without the written approval of BOP Diggers.
- 27.7 BOP Diggers 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 Customer agrees and understands that they have no authority to give any instruction to any of BOP Diggers’ sub-contractors without the authority of BOP Diggers.
- 27.8 The Customer agrees that BOP Diggers 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 BOP Diggers to provide Works to the Customer.
- 27.9 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.
- 27.10 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.