Terms and Conditions

  1. Definitions
    • “Aquaflow” means Aquaflow Spa & Swimming Pools Limited, its successors and assigns or any person acting on behalf of and with the authority of Aquaflow Spa & Swimming Pools Limited.
    • “Client” means the person/s buying the Goods (and/or hiring Equipment) as specified in any invoice, document or order, and if there is more than one Client is a reference to each Client jointly and severally.
    • “Goods” means all Goods or Services supplied by Aquaflow to the Client at the Client’s request from time to time (where the context so permits the terms ‘Goods’ or ‘Services’ shall be interchangeable for the other).
    • “Equipment” means all Equipment including any accessories supplied on hire by Aquaflow to the Client (and where the context so permits shall include any supply of Services). The Equipment shall be as described on the invoices, quotation, authority to hire, or any other work authorisation form provided by Aquaflow to the Client.
    • “Price” means the Price payable for the Goods/Equipment hire as agreed between Aquaflow and the Client in accordance with clause 4

 

  1. Acceptance
    • The Client is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Client places an order for or accepts delivery of the Goods/Equipment.
    • These terms and conditions may only be amended with Aquaflow’s consent in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the Client and Aquaflow.
    • Aquaflow reserves the right to charge an initial consultation fee after the first hour of consultation. On acceptance of the quotation this initial consultation fee shall be waived from the overall Price for the Services (Goods).  In the event that the Client does not accept the quotation, the Client accepts and agrees to pay Aquaflow the initial consultation fee detailed in the quotation for Services provided to date.

 

  1. Change in Control
    • The Client shall give Aquaflow not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client and/or any other change in the Client’s details (including but not limited to, changes in the Client’s name, address, contact phone or fax number/s, or business practice). The Client shall be liable for any loss incurred by Aquaflow as a result of the Client’s failure to comply with this clause.

 

  1. Price and Payment
    • At Aquaflow’s sole discretion the Price shall be either:
      • as indicated on any invoice provided by Aquaflow to the Client; or
      • Aquaflow’s quoted price (subject to clause 2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.
    • Aquaflow reserves the right to change the Price:
      • if a variation to the Goods/Equipment which are to be supplied is requested; or
      • if a variation to the Services originally scheduled (including any applicable plans or specifications) is requested; or
      • where additional Services are required due to the discovery of hidden or unidentifiable difficulties (including, but not limited to, poor weather conditions, limitations to accessing the site, change of design, hard rock barriers below the surface, iron reinforcing rods in concrete, or hidden pipes and wiring in walls etc) which are only discovered on commencement of the Services; or
      • in the event of increases to Aquaflow in the cost of labour or Goods (including but not limited to overseas transactions that may increase as a consequence of variations in foreign currency rates of exchange and/or international freight and insurance charges) which are beyond Aquaflow’s
    • At Aquaflow’s sole discretion a non-refundable deposit may be required.
    • Time for payment for the Goods/Equipment being of the essence, the Price will be payable by the Client on the date/s determined by Aquaflow, which may be:
      • on delivery of the Goods/Equipment;
      • before delivery of the Goods/Equipment;
      • by way of progress payments in accordance with the Contractor’s specified progress payment schedule (as follows) which may include the reasonable value of authorised variations and the value of any Materials delivered to the worksite but not yet installed:
        • a payment of forty percent (40%) of the Price is required prior to the commencement of the Services;
        • a payment of thirty percent (30%) of the Price is required at the time of the installation of the Goods;
        • a final payment of the remaining thirty percent (30%) of the Price, including payment of any variations, within seven (7) days of completion;
      • for certain approved Client’s, due twenty (20) days following the end of the month in which a statement is posted to the Client’s address or address for notices;
      • the date specified on any invoice or other form as being the date for payment; or
      • failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Client by Aquaflow.
    • Payment may be made by cash, cheque, bank cheque, electronic/on-line banking, credit card (plus a surcharge of up to five percent (5%) of the Price), or by any other method as agreed to between the Client and Aquaflow.
    • Unless otherwise stated the Price does not include GST. In addition to the Price the Client must pay to Aquaflow an amount equal to any GST Aquaflow must pay for any supply by Aquaflow under this or any other agreement for the sale of the Goods/hire of the Equipment. The Client must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Client pays the Price. In addition the Client 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.

 

  1. Delivery of Goods/Equipment
    • Delivery (“Delivery”) of the Goods/Equipment is taken to occur at the time that:
      • the Client or the Client’s nominated carrier takes possession of the Goods/Equipment at Aquaflow’s address; or
      • Aquaflow (or Aquaflow’s nominated carrier) delivers the Goods/Equipment to the Client’s nominated address even if the Client is not present at the address.
    • At Aquaflow’s sole discretion the cost of delivery is included in the Price.
    • The Client must take delivery by receipt or collection of the Goods/Equipment whenever either is tendered for delivery. In the event that the Client is unable to take delivery of the Goods/Equipment as arranged then Aquaflow shall be entitled to charge a reasonable fee for redelivery of the Goods/Equipment and/or the storage of the Goods.
    • Aquaflow may deliver the Goods/Equipment in separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.
    • Any time or date given by Aquaflow to the Client is an estimate only. The Client must still accept delivery of the Goods/Equipment even if late and Aquaflow will not be liable for any loss or damage incurred by the Client as a result of the delivery being late.

 

  1. Risk
    • Risk of damage to or loss of the Goods passes to the Client on Delivery and the Client 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 Client, Aquaflow is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by Aquaflow is sufficient evidence of Aquaflow’s rights to receive the insurance proceeds without the need for any person dealing with Aquaflow to make further enquiries.
    • If the Client requests Aquaflow to leave Goods outside Aquaflow’s premises for collection or to deliver the Goods to an unattended location then such Goods shall be left at the Client’s sole risk.
    • The Client acknowledges that variations of colour, shade and grain are inherent in all kiln fired products and natural stone. While every effort will be taken by Aquaflow to match colour, shade or grain of product, Aquaflow shall not be liable for any loss, damages or costs howsoever arising resulting from any variation in colour, shading or grain between batches of product or sale samples and the final product supplied.
    • Aquaflow gives no guarantee (expressed or implied) against crazing, cracking, chipping or scratching that may occur that is beyond Aquaflow’s control due to the nature of the product at the time of installation.
    • The Client acknowledges that it is their responsibility to remove any existing fence (including existing footings), trees, vines and shrubs to allow Aquaflow clear access along the proposed work area prior to commencement of work by Aquaflow unless otherwise agreed in writing between Aquaflow and the Client. Under no circumstances will Aquaflow handle removal of asbestos product.
    • Whilst Aquaflow will take all due care during installation Aquaflow will not accept any responsibility for tiles or pavers damaged during installation.
    • The Client shall provide Aquaflow with a suitable free power source.
    • Where Aquaflow gives advice or recommendations to the Client, or the Client’s agent, with specific instructions regarding the use of the Goods and such advice or recommendations are not acted upon then Aquaflow shall not be liable in any way whatsoever for any damages or losses that occur after any subsequent commencement of the Services.

 

  1. Client’s Responsibilities
    • It is the Client’s responsibility to
      • arrange the following:

(i)    diversion of any storm water, sewer or water supply pipe, electricity cable, telephone cable or gas pipes; and

(ii)    the thyne ripping of the site or de-watering of the site, (shoring pumping etc) and/or peering and beaming, including extra steel and concrete; and

  • prepare any lawns, shrubs, plants and trees which are required for re-planting; and
  • supply water for the filling of the pool; and
  • arrange any installation of a new storm water, sewerage or water supply pipes, electricity cable, telephone cables, or gas pipes; and
  • any fencing, water meters, vacuum breaker valves etc or any other requirements as may be imposed by local, or Government body as a requirement or condition or building application approval; and
  • supply electricity to the filter-electrical installation for underwater light if applicable and earth wire connection; and
  • advise the location of boundaries and the location, elevation and dimensions for the proposed site of the pool
  • ensure that no pathways be built around pool, over filtration lines, whilst pool under construction. Keep pool isolated from outside structures.

 

  1. Concreting Risk
    • The Client acknowledges that variations of colour and texture are inherent in concrete. Aquaflow shall not be liable for any loss, damages or costs howsoever arising resulting from any variation of the colour or texture between different batches of product.
    • Detailed drawings of any services that will be embedded in the concrete are to be provided to Aquaflow prior to commencement of any Services. Whilst all due care will be taken no liability will be accepted by Aquaflow for damage to the services or any other element embedded in the concrete.
    • Aquaflow 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 in the Services such as:
      • hairline cracking of paving and grout; or
      • damage caused by contact with chemicals, solvents, oils or any other substances; or
      • the affects by elements such as heat exposure or wet weather conditions that prolong the curing process.
    • The Client acknowledges and agrees that it is their responsibility to organise and be liable for all costs associated with protecting the concrete and shall take all reasonable precautions to protect against destruction or damage by way of vandalism. In the event that the concrete is destroyed or damaged due to vandalism then the cost of re pair or replacement shall be borne by the Client.
    • Where Aquaflow gives advice or recommendations to the Client, or the Client’s agent, regarding the suitability of the worksite for the laying of concrete slabs, foundations or similar Services and such advice or recommendations are not acted upon then Aquaflow shall require the Client or their agent to authorise commencement of the Services in writing. Aquaflow shall not be liable in any way whatsoever for any damages or losses that occur after any subsequent commencement of the Services.
    • The Client shall supply an area suitable for washing out Aquaflow’s equipment and for depositing all unused concrete and slurry.

 

  1. Access
    • The Client shall ensure that Aquaflow has clear and free access to the work site at all times to enable them to undertake the Services. Aquaflow 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 Aquaflow.

 

  1. Underground Locations
    • Prior to Aquaflow commencing any work the Client must advise Aquaflow of the precise location of all underground services on the site and clearly mark the same. The underground mains & services the Client 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.
    • Whilst Aquaflow will take all care to avoid damage to any underground services the Client agrees to indemnify Aquaflow 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 1.

 

  1. Compliance with Laws
    • The Client and Aquaflow 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.
    • The Client shall obtain (at the expense of the Client) all licenses and approvals that may be required for the Services.
    • The Client agrees that the site will comply with any occupational health and safety laws relating to building/construction sites and any other relevant safety standards or legislation.

 

  1. Insurance
    • Aquaflow shall have public liability insurance of at least $5m. It is the Client’s responsibility to ensure that they are similarly insured.

 

  1. Title To Goods
    • Aquaflow and the Client agree that ownership of the Goods shall not pass until:
      • the Client has paid Aquaflow all amounts owing to Aquaflow; and
      • the Client has met all of its other obligations to Aquaflow.
    • Receipt by Aquaflow 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.
    • It is further agreed that:
      • until ownership of the Goods passes to the Client in accordance with clause 1 that the Client is only a bailee of the Goods and must return the Goods to Aquaflow on request.
      • the Client holds the benefit of the Client’s insurance of the Goods on trust for Aquaflow and must pay to Aquaflow the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed.
      • the Client must not sell, dispose, or otherwise part with possession of the Goods other than in the ordinary course of business and for market value. If the Client sells, disposes or parts with possession of the Goods then the Client must hold the proceeds of any such act on trust for Aquaflow and must pay or deliver the proceeds to Aquaflow on demand.
      • the Client should not convert or process the Goods or intermix them with other goods but if the Client does so then the Client holds the resulting product on trust for the benefit of Aquaflow and must sell, dispose of or return the resulting product to Aquaflow as it so directs.
      • the Client irrevocably authorises Aquaflow to enter any premises where Aquaflow believes the Goods are kept and recover possession of the Goods.
      • Aquaflow may recover possession of any Goods in transit whether or not delivery has occurred.
      • the Client 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 Aquaflow.
      • Aquaflow may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Client.

 

  1. Personal Property Securities Act 1999 (“PPSA”)
    • Upon assenting to these terms and conditions in writing the Client acknowledges and agrees that:
      • these terms and conditions constitute a security agreement for the purposes of the PPSA; and
      • a security interest is taken in all Goods/Equipment previously supplied by Aquaflow to the Client (if any) and all Goods/Equipment that will be supplied in the future by Aquaflow to the Client.
    • The Client undertakes to:
      • sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which Aquaflow may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register;
      • indemnify, and upon demand reimburse, Aquaflow for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register or releasing any Goods/Equipment charged thereby;
      • not register a financing change statement or a change demand without the prior written consent of Aquaflow; and
      • immediately advise Aquaflow of any material change in its business practices of selling Goods which would result in a change in the nature of proceeds derived from such sales.
    • Aquaflow and the Client agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms and conditions.
    • The Client waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA.
    • Unless otherwise agreed to in writing by Aquaflow, the Client waives its right to receive a verification statement in accordance with section 148 of the PPSA.
    • The Client shall unconditionally ratify any actions taken by Aquaflow under clauses 1 to 14.5.

 

  1. Security and Charge
    • In consideration of Aquaflow agreeing to supply the Goods/Equipment, the Client charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Client either now or in the future, to secure the performance by the Client of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
    • The Client indemnifies Aquaflow from and against all Aquaflow’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising Aquaflow’s rights under this clause.
    • The Client irrevocably appoints Aquaflow and each director of Aquaflow as the Client’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 Client’s behalf.

 

  1. Client’s Disclaimer
    • The Client hereby disclaims any right to rescind, or cancel any contract with Aquaflow or to sue for damages or to claim restitution arising out of any inadvertent misrepresentation made to the Client by Aquaflow and the Client acknowledges that the Goods are bought relying solely upon the Client’s skill and judgment.

 

  1. Defects
    • The Client shall inspect the Goods/Equipment on delivery and shall within seven (7) days of delivery (time being of the essence) notify Aquaflow of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Client shall afford Aquaflow an opportunity to inspect the Goods/Equipment within a reasonable time following delivery if the Client believes the Goods are defective in any way.  If the Client shall fail to comply with these provisions the Goods/Equipment shall be presumed to be free from any defect or damage. For defective Goods/Equipment, which Aquaflow has agreed in writing that the Client is entitled to reject, Aquaflow’s liability is limited to either (at Aquaflow’s discretion) replacing the Goods/Equipment or repairing the Goods/Equipment.
    • Goods/Equipment will not be accepted for return for any reason other than those specified in clause 1 above (or in the case of Equipment hire, normal termination of Equipment hire in accordance with the full terms and conditions herein).

 

  1. Returns Of Goods
    • Returns of Goods will only be accepted provided that:
      • the Client has complied with the provisions of clause 1; and
      • Aquaflow has agreed in writing to accept the return of the Goods; and
      • the Goods are returned at the Client’s cost within seven (7) days of the delivery date; and
      • Aquaflow will not be liable for Goods which have not been stored or used in a proper manner; and
      • 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.
    • Aquaflow may (in its discretion) accept the return of Goods for credit but this may incur a handling fee of fifteen percent (15%) of the value of the returned Goods plus any freight.
    • Non-stocklist items or Goods made to the Client’s specifications are under no circumstances acceptable for credit or return.

 

  1. Warranty
    • Subject to the conditions of warranty set out in Clause 2 Aquaflow warrants that if any defect in any workmanship of Aquaflow becomes apparent and is reported to Aquaflow within two (2) years of the date of delivery (time being of the essence) then Aquaflow will either (at Aquaflow’s sole discretion) replace or remedy the workmanship.
    • The conditions applicable to the warranty given by Clause 1 are:
      • the warranty shall not cover any defect or damage which may be caused or partly caused by or arise through:
        • failure on the part of the Client to properly maintain any Goods; or
        • failure on the part of the Client to follow any instructions or guidelines provided by Aquaflow; or
        • any use of any Goods otherwise than for any application specified on a quote or order form; or
        • the continued use of any Goods after any defect becomes apparent or would have become apparent to a reasonably prudent operator or user; or
        • fair wear and tear, any accident or act of God.
      • the warranty shall cease and Aquaflow shall thereafter in no circumstances be liable under the terms of the warranty if the workmanship is repaired, altered or overhauled without Aquaflow’s consent.
      • in respect of all claims Aquaflow shall not be liable to compensate the Client for any delay in either replacing or remedying the workmanship or in properly assessing the Client’s claim.
    • For Goods not manufactured by Aquaflow, the warranty shall be the current warranty provided by the manufacturer of the Goods. Aquaflow 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.

 

  1. Consumer Guarantees Act 1993
    • If the Client is acquiring Goods for the purposes of a trade or business, the Client acknowledges that the provisions of the Consumer Guarantees Act 1993 do not apply to the supply of Goods by Aquaflow to the Client.

 

  1. Intellectual Property
    • Where Aquaflow has designed, drawn or developed Goods/Equipment for the Client, then the copyright in any designs and drawings and documents shall remain the property of Aquaflow.
    • The Client warrants that all designs, specifications or instructions given to Aquaflow will not cause Aquaflow to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify Aquaflow against any action taken by a third party against Aquaflow in respect of any such infringement.
    • The Client agrees that Aquaflow may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings or Goods which Aquaflow has created for the Client.

 

  1. Default and Consequences of Default
    • 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 Aquaflow’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
    • If the Client owes Aquaflow any money the Client shall indemnify Aquaflow from and against all costs and disbursements incurred by Aquaflow in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, Aquaflow’s collection agency costs, and bank dishonour fees).
    • Without prejudice to any other remedies Aquaflow may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions Aquaflow may suspend or terminate the supply of Goods/Equipment to the Client. Aquaflow will not be liable to the Client for any loss or damage the Client suffers because Aquaflow has exercised its rights under this clause.
    • Without prejudice to Aquaflow’s other remedies at law Aquaflow shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to Aquaflow shall, whether or not due for payment, become immediately payable if:
      • any money payable to Aquaflow becomes overdue, or in Aquaflow’s opinion the Client will be unable to make a payment when it falls due;
      • the Client 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
      • a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.

 

  1. Cancellation
    • Aquaflow may cancel any contract to which these terms and conditions apply or cancel delivery of Goods/Equipment at any time before the Goods/Equipment are due to be delivered by giving written notice to the Client. On giving such notice Aquaflow shall repay to the Client any money paid by the Client for the Goods/Equipment. Aquaflow shall not be liable for any loss or damage whatsoever arising from such cancellation.
    • In the event that the Client cancels delivery of the Goods/Equipment the Client shall be liable for any and all loss incurred (whether direct or indirect) by Aquaflow as a direct result of the cancellation (including, but not limited to, any loss of profits).
    • Cancellation of orders for Goods made to the Client’s specifications, or for non-stocklist items, will definitely not be accepted once production has commenced, or an order has been placed.

 

  1. Privacy Act 1993
    • The Client authorises Aquaflow or Aquaflow’s agent to:
      • access, collect, retain and use any information about the Client;
        • (including any overdue fines balance information held by the Ministry of Justice) for the purpose of assessing the Client’s creditworthiness; or
        • for the purpose of marketing products and services to the Client.
      • disclose information about the Client, whether collected by Aquaflow from the Client directly or obtained by Aquaflow 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 Client.
    • Where the Client is an individual the authorities under clause 1 are authorities or consents for the purposes of the Privacy Act 1993.
    • The Client shall have the right to request Aquaflow for a copy of the information about the Client retained by Aquaflow and the right to request Aquaflow to correct any incorrect information about the Client held by Aquaflow.

 

  1. Unpaid Seller’s Rights
    • Where the Client has left any item with Aquaflow for repair, modification, exchange or for Aquaflow to perform any other service in relation to the item and Aquaflow has not received or been tendered the whole of any moneys owing to it by the Client, Aquaflow shall have, until all moneys owing to Aquaflow are paid:
      • a lien on the item; and
      • the right to retain or sell the item, such sale to be undertaken in accordance with any legislation applicable to the sale or disposal of uncollected goods.
    • The lien of Aquaflow shall continue despite the commencement of proceedings, or judgment for any moneys owing to Aquaflow having been obtained against the Client.

 

  1. Equipment Hire
    • Equipment shall at all times remain the property of Aquaflow and is returnable on demand by Aquaflow. In the event that Equipment is not returned to Aquaflow in the condition in which it was delivered Aquaflow retains the right to charge the Client the full cost of repairing the Equipment. In the event that Equipment is not returned at all Aquaflow shall have right to charge the Client the full cost of replacing the Equipment.
    • The Client shall;
      • keep the Equipment in their own possession and control and shall not assign the benefit of the Equipment nor be entitled to a lien over the Equipment.
      • not alter or make any additions to the Equipment including but without limitation altering, make any additions to, defacing or erasing any identifying mark, plate or number on or in the Equipment or in any other manner interfere with the Equipment.
      • keep the Equipment, complete with all parts and accessories, clean and in good order as delivered, and shall comply with any maintenance schedule as advised by Aquaflow to the Client.
    • The Client accepts full responsibility for the safekeeping of the Equipment and the Client agrees to insure, or self insure, Aquaflow’s interest in the Equipment and agrees to indemnify Aquaflow against physical loss or damage including, but not limited to, the perils of accident, fire, theft and burglary and all other usual risks and will effect adequate Public Liability Insurance covering any loss, damage or injury to property or persons arising out of the use of the Equipment. Further the Client will not use the Equipment nor permit it to be used in such a manner as would permit an insurer to decline any claim.

 

  1. Construction Contract Act 2002
    • The Client hereby expressly acknowledges that:
      • Aquaflow 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 Client, and:
        • the payment is not paid in full by the due date for payment and no payment schedule has been given by the Client; or
        • a scheduled amount stated in a payment schedule issued by the Client in relation to the payment claim is not paid in full by the due date for its payment; or
        • the Client has not complied with an adjudicator’s notice that the Client must pay an amount to Aquaflow by a particular date; and
        • Aquaflow has given written notice to the Client of its intention to suspend the carrying out of construction work under the construction contract.
      • if Aquaflow suspends work, it:
        • is not in breach of contract; and
        • is not liable for any loss or damage whatsoever suffered, or alleged to be suffered, by the Client or by any person claiming through the Client; and
        • is entitled to an extension of time to complete the contract; and
        • 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.
      • if Aquaflow exercises the right to suspend work, the exercise of that right does not:
        • affect any rights that would otherwise have been available to Aquaflow under the Contractual Remedies Act 1979; or
        • enable the Client to exercise any rights that may otherwise have been available to the Client under that Act as a direct consequence of Aquaflow suspending work under this provision.

 

  1. General
    • The failure by Aquaflow to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect Aquaflow’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.
    • 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 Nelson Courts of New Zealand.
    • Aquaflow shall be under no liability whatsoever to the Client for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by Aquaflow of these terms and conditions (alternatively Aquaflow’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Goods/Equipment hire).
    • The Client shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Client by Aquaflow nor to withhold payment of any invoice because part of that invoice is in dispute.
    • Aquaflow may license or sub-contract all or any part of its rights and obligations without the Client’s consent.
    • The Client agrees that Aquaflow may amend these terms and conditions at any time. If Aquaflow makes a change to these terms and conditions, then that change will take effect from the date on which Aquaflow notifies the Client of such change. The Client will be taken to have accepted such changes if the Client makes a further request for Aquaflow to provide Goods/Equipment to the Client.
    • 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.
    • The Client warrants that it has the power to enter into this agreement and has obtained all necessary authorisations to allow it to do so, it is not insolvent and that this agreement creates binding and valid legal obligations on it.