Aquaflow Spa & Swimming Pools Limited — Terms & Conditions of Trade
Definitions
“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.
“Aquaflow” means Aquaflow Spa & Swimming Pools Limited, its successors and assigns.
“Client” means the person/s, entities or any person acting on behalf of and with the authority of the Client requesting Aquaflow to provide the Works as specified in any proposal, quotation, order, invoice or other documentation, and:
if there is more than one Client, is a reference to each Client jointly and severally; and
if the Client is a partnership, it shall bind each partner jointly and severally; and
if the Client is a part of a Trust, shall be bound in their capacity as a trustee; and
includes the Client’s executors, administrators, successors and permitted assigns.
“Works” means all Works (including consultation, manufacturing and/or installation services) or Materials supplied by Aquaflow to the Client at the Client’s request from time to time (where the context so permits the terms ‘Works’ or ‘Materials’ shall be interchangeable for the other).
“Worksite” means the address nominated by the Client to which the Materials are to be supplied by Aquaflow.
“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 Client does not wish to allow Cookies to operate in the background when using Aquaflow’s website, then the Client shall have the right to enable / disable the Cookies first by selecting the option to enable / disable provided on the website, prior to making enquiries via the website.
“Price” means the Price payable (plus any Goods and Services Tax (“GST”) where applicable) for the Works as agreed between Aquaflow and the Client in accordance with clause 7 below.
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 any Works.
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.
Any amendment to the terms and conditions contained in this Contract may only be amended in writing by the consent of both parties.
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 (Works). 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 Works or services provided to date.
The Client acknowledges and accepts that:
the supply of Works on credit shall not take effect until the Client has completed a credit application with Aquaflow and it has been approved with a credit limit established for the account;
in the event that the supply of Works requested exceeds the Client’s credit limit and/or the account exceeds the payment terms, Aquaflow reserves the right to refuse delivery;
the provision of Materials for accepted orders may be subject to availability and if, for any reason, Materials are not, or cease to be, available, Aquaflow reserves the right to vary the Price with alternative Materials as per clause 7.2. Aquaflow also reserves the right to halt the provision of the Works until such time as Aquaflow and the Client agree to such variation;
when the Client 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;
Aquaflow does not accept liability for any Works carried out by any other third party contracted by the Client; and
the Client agrees to indemnify Aquaflow from any damage caused by any other tradesman engaged by the Client during and after the completion of the Works (including, but not limited to, an unsuitable excavation surface for installation). Aquaflow reserves the right to halt the Works until such time as it is rectified and if Aquaflow is instructed to do this, it will become a variation to the original quotation and will be charged in accordance with clause 7.2.
These terms and conditions may be meant to be read in conjunction with Aquaflow’s Hire Form, and where the context so permits, the terms ‘Works’ or ‘Materials’ shall include any supply of Equipment, as defined therein.
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.
Errors and Omissions
The Client acknowledges and accepts that Aquaflow shall, without prejudice, accept no liability in respect of any alleged or actual error(s) and/or omission(s):
resulting from an inadvertent mistake made by Aquaflow in the formation and/or administration of this Contract; and/or
contained in/omitted from any literature (hard copy and/or electronic) supplied by Aquaflow in respect of the Works.
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 Aquaflow; the Client shall not be entitled to treat this Contract as repudiated nor render it invalid.
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, change of trustees, 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.
Authorised Representatives
Unless otherwise limited as per clause 5.2, the Client agrees that should the Client introduce any third party (including, but not limited to, another company or consultant) to Aquaflow as the Client’s duly authorised representative, that once introduced that person shall have the full authority of the Client to order any Works, and/or to request any variation thereto, on the Client’s behalf (such authority to continue until all requested Works have been completed or the Client otherwise notifies Aquaflow in writing that said person is no longer the Client’s duly authorised representative).
In the event that the Client’s duly authorised representative as per clause 5.1 is to have only limited authority to act on the Client’s behalf then the Client must specifically and clearly advise Aquaflow in writing of the parameters of the limited authority granted to their representative.
The Client specifically acknowledges and accepts that they will be solely liable to Aquaflow for all additional costs incurred by Aquaflow (including Aquaflow’s profit margin) in providing any Works, or variation/s thereto, requested by the Client’s duly authorised representative (subject always to the limitations imposed under clause 5.2 (if any)).
Exclusions from quote
Unless otherwise agreed, the following are excluded from the quote;
electrical or electrical contractors;
drainage or drainage contractors;
plumbing or plumbing contractors;
resource consent if required;
removal of excavated materials from the Worksite;
water to fill pool.
Price and Payment
At Aquaflow’s sole discretion the Price shall be either:
as indicated on invoices provided by Aquaflow to the Client in respect of Works performed or Materials supplied; or
Aquaflow’s Price at the date of delivery of the Works according to Aquaflow’s current pricelist; or
Aquaflow’s quoted Price (subject to clause 7.2) which shall be binding upon Aquaflow provided that the Client shall accept Aquaflow’s quotation in writing within thirty (30) days.
Aquaflow reserves the right to change the Price:
if a variation to the Materials which are to be supplied is requested; or
if a variation to the Works originally scheduled (including any applicable plans or specifications) is requested; or
if a variation to Aquaflow’s quotation and/or a purchase order is requested or required (including, as to the nature, size, weight or quantity) and location of the collection and/or delivery address, distance from the collection address to the delivery address, facilities available for loading or unloading, weather conditions or delays beyond the control of Aquaflow, delivery times or dates, or otherwise, etc.; or
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 Worksite, obscured building/Worksite defects, change of design, incorrect measurements, plans and/or specifications provided by the Client, safety considerations (discovery of asbestos, etc.), prerequisite work by any third party not being completed, hard rock barriers below the surface, iron reinforcing rods in concrete, items or ground conditions that delay the Works, 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 Works; or
as a result of an increase in Aquaflow’s costs due to changes in statutory, council or engineer requirements, government, or local body charges, taxes, custom duties, freight prices, levies, etc. with respect to the Works and/or fluctuations in currency exchange rates, which are outside the control of Aquaflow; or
in the event of increases to Aquaflow in the cost of labour or Materials which are beyond Aquaflow’s control.
Variations will be charged for on the basis of Aquaflow’s quotation, and will be detailed in writing, and shown as variations on Aquaflow’s invoice. The Client shall be required to respond to any variation submitted by Aquaflow within ten (10) working days. Failure to do so will entitle Aquaflow 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.
At Aquaflow’s sole discretion a non-refundable deposit may be required and the following conditions may apply:
a payment of forty percent (40%) of the Price is required prior to the commencement of the Works;
a payment of thirty percent (30%) of the Price is required at the time of the installation of the Materials;
a final payment of the remaining thirty percent (30%) of the Price, including payment of any variations, within seven (7) days of completion.
Time for payment for the Works being of the essence, the Price will be payable by the Client on the date/s determined by Aquaflow, which may be:
on completion of the Works; or
on or before delivery of the Materials;
by way of progress payments in accordance with Aquaflow’s 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;
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.
At the agreement of both parties, payment of the Price may be subject to retention by the Client of an amount (hereafter called the "Retention Money"), being a set amount or equal to a percentage of the Price. The Client 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 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.
Payment may be made by cash, cheque, bank cheque, electronic/on-line banking, credit card (a surcharge may apply per transaction), or by any other method as agreed to between the Client and Aquaflow.
Aquaflow may in its discretion allocate any payment received from the Client towards any invoice that Aquaflow determines and may do so at the time of receipt or at any time afterwards. On any default by the Client Aquaflow may re-allocate any payments previously received and allocated. In the absence of any payment allocation by Aquaflow, payment will be deemed to be allocated in such manner as preserves the maximum value of Aquaflow’s Purchase Money Security Interest (as defined in the PPSA) in the Materials.
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, unless the request for payment by Aquaflow is a claim made under the Construction Contracts Act 2002. Nothing in this clause 7.9 prevents the Client from the ability to dispute any invoice.
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 Materials. 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.
Provision of the Works
Subject to clause 8.2 it is Aquaflow’s responsibility to ensure that the Works start as soon as it is reasonably possible.
The Works’ commencement date will be put back and the completion date extended by whatever time is reasonable in the event that Aquaflow claims an extension of time (by giving the Client written notice) where completion is delayed by an event beyond Aquaflow’s control, including but not limited to any failure by the Client to:
make a selection; or
have the Worksite ready for the Works; or
notify Aquaflow that the Worksite is ready.
At Aquaflow’s sole discretion, the cost of delivery is either included in the Price or is in addition to the Price.
Aquaflow 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.
Any time specified by Aquaflow for delivery of the Works is an estimate only and Aquaflow will not be liable for any loss or damage incurred by the Client 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 Aquaflow is unable to supply the Works as agreed solely due to any action or inaction of the Client, then Aquaflow 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.
Risk
If Aquaflow retains ownership of the Materials under clause 13 then:
where Aquaflow is supplying Materials only, all risk for the Materials shall immediately pass to the Client on delivery and the Client 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:
the Client or the Client’s nominated carrier takes possession of the Materials at Aquaflow’s address; or
the Materials are delivered by Aquaflow or Aquaflow’s nominated carrier to the Client’s nominated delivery address (even if the Client is not present at the address).
where Aquaflow is to both supply and install Materials then Aquaflow 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 Client.
Notwithstanding the provisions of clause 9.1 if the Client specifically requests Aquaflow to leave Materials outside Aquaflow’s premises for collection or to deliver the Materials to an unattended location then such materials shall always be left at sole risk of the Client and it shall be the Client’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 Client’s expense.
Where Aquaflow gives advice or recommendations to the Client, or the Client’s agent, regarding the suitability of the Worksite for the Works, or the use of Materials for the Client’s intended purpose, and such advice or recommendations are not acted upon, then Aquaflow shall:
require the Client or their agent to authorise commencement of the Works in writing; and/or
not be liable in any way whatsoever for any damages or losses that occur after any subsequent provision of the Works.
The Client acknowledges that:
Materials 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 Aquaflow will make every effort to match batches of product supplied in order to minimise such variations, or sales sample to the finished Materials, Aquaflow accepts no liability whatsoever where such samples/batches differ to the finished Materials supplied;
Materials supplied may mark or stain if exposed to certain substances, and/or be damaged or disfigured by impact or scratching;
timber is a hydroscopic material and may expand, contract or distort a result of exposure to heat, cold, weather, therefore Aquaflow will accept no responsibility for gaps that may appear during prolonged dry periods;
Aquaflow shall not be liable for inferior existing paintwork where Aquaflow’s paint has bonded to the existing paintwork and weakened the previous paint causing any kind of flake, crack or blemish;
Aquaflow shall not be held liable for the quality of the Works (or any other work undertaken by the Client or third party) if the Client does not follow Aquaflow’s recommendations as to the number of coats of paint required to obtain the final finish and the Client chooses to accept fewer coats of paint;
Aquaflow shall not be liable whatsoever for any loss or damage to the Works (including, but not limited to, painted surfaces) that is caused by any other tradesmen;
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 Materials at the time of installation, therefore it is recommended that the Client allows for extra quantities for such breakages;
whilst Aquaflow will take all due care during installation, Aquaflow will not accept any responsibility for tiles or pavers damaged during installation;
where fencing is installed on a retaining wall, Aquaflow 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;
Aquaflow shall not be responsible for digging land out under fence lines nor removal of soil from the Worksite.
Aquaflow will use reasonable endeavours to match the Materials 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 Aquaflow.
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, 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 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 Client.
Aquaflow shall not be liable for any defect in the Works if the Client does not follow Aquaflow’s recommendation to:
water any concrete periodically to limit the risk of possible cracking due to weather conditions;
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;
ensure that no heavy furniture be placed on new surfaces for a minimum of twenty-four (24) hours.
Client’s Responsibilities
It shall be the Client’s responsibility to:
make the Worksite available on the agreed date/s and time/s. In the event Aquaflow is unable to provide the Works as agreed solely due to any action or inaction of the Client (including any request by the Client to delay the Works from the agreed commencement date, or if the Works are delayed or interrupted by the failure of the Client to adhere to the work schedule agreed to between Aquaflow and the Client), any additional costs will be invoiced to the Client as per clause 7.2;
ensure that Aquaflow has clear and free access to the Worksite at all times to enable them to undertake the Works. Aquaflow 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 Aquaflow’s negligence;
remove obstructions on the Worksite in order for the Works to be provided by Aquaflow (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 Aquaflow make reasonably have to break into, or disturb, in provision of the Works.
Unless otherwise agreed in writing between the Client and Aquaflow, it shall be the Client’s responsibility to, prior to Aquaflow commencing the Works, advise Aquaflow of the precise location of all underground services on the Worksite and clearly mark the same. The underground mains and 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 the Worksite. 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 this clause 10.2.
Where the Client supplies Aquaflow with any design specifications (including, but not limited to CAD drawings), the Client shall be responsible for providing accurate data. Aquaflow shall not be liable whatsoever for any errors or omissions in the Works that are caused by incorrect or inaccurate data being supplied by the Client.
Unless specified otherwise in this Contract, it is the Client’s responsibility to:
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 Client fails to comply with this clause then Aquaflow accepts no responsibility for installation decisions that need to be made by Aquaflow in the Client’s absence;
remove any existing fence (including existing footings), trees, vines and shrubs to allow Aquaflow clear access along the proposed fence line prior to commencement of the Works by Aquaflow, unless otherwise agreed in writing between Aquaflow and the Client. Under no circumstances will Aquaflow handle removal of asbestos product;
provide Aquaflow with a suitable free power source;
arrange the following:
diversion of any storm water, sewer or water supply pipe, electricity cable, telephone cable or gas pipes; and
thyne ripping or de-watering of the Worksite, (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 state Government body as a requirement or condition or building consent application; 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;
any surface requiring waterproofing is suitable for the purpose. In the event that the Client requests Aquaflow to prepare the surface for waterproofing, then at Aquaflow’s sole discretion a fee shall be charged for the Works, and shall become immediately due and payable;
no other tradesmen work on the membrane applied to the surface, until the membrane is fully dried and cured to manufacturer’s specifications. Aquaflow shall not be liable for any costs, damages or loss however arising from the Client’s failure to comply with this clause.
Following installation, the care, maintenance and cleanliness of a pool shall be the responsibility of the Client.
Aquaflow 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.
The Client 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.
The Client acknowledges that Materials supplied may:
fade or change colour over time; and
expand, contract or distort as a result of exposure to heat, cold, weather; and
mark or stain if exposed to certain substances; and
be damaged or disfigured by impact or scratching.
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 Works, including any WorkSafe health and safety laws relating or any other relevant safety standards or legislation pertaining to the Works.
Both parties acknowledge and agree:
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 Works; and
that Works will be provided in accordance with any current relevant Australian/New Zealand Standards applicable.
Where the Client has supplied products for Aquaflow to complete the Works, the Client 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 Aquaflow’s opinion, it is believed that the materials supplied are Non-Conforming products and will not conform with New Zealand regulations, then Aquaflow shall be entitled, without prejudice, to halt the Works 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 7.2.
The Client shall obtain (at the expense of the Client) all licenses and approvals that may be required for the Works.
Notwithstanding clause 11.1 and pursuant to the Health & Safety at Work Act 2015 (the “HSW Act”), Aquaflow 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 Client who has engaged a third party head contractor.
Insurance
Aquaflow shall have public liability insurance of at least $5m. It is the Client’s responsibility to ensure that they are similarly insured.
Title
Aquaflow and the Client agree that ownership of the Materials 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 Materials passes to the Client in accordance with clause 13.1 that the Client is only a bailee of the Materials and unless the Materials have become fixtures must return the Materials to Aquaflow on request;
the Client holds the benefit of the Client’s insurance of the Materials on trust for Aquaflow and must pay to Aquaflow the proceeds of any insurance in the event of the Materials being lost, damaged or destroyed;
the production of these terms and conditions by Aquaflow shall be sufficient evidence of Aquaflow’s rights to receive the insurance proceeds direct from the insurer without the need for any person dealing with Aquaflow to make further enquiries;
the Client must not sell, dispose, or otherwise part with possession of the Materials other than in the ordinary course of business and for market value. If the Client sells, disposes or parts with possession of the Materials then the Client must hold the proceeds of any such act on trust for Aquaflow and must pay or deliver the proceeds to Aquaflow on demand;
the Client should not convert or process the Materials or intermix them with other goods but if the Client does so then the Client holds the resulting product on trust for the benefit of Aquaflow and must sell, dispose of or return the resulting product to Aquaflow as it so directs;
unless the Materials have become fixtures the Client irrevocably authorises Aquaflow to enter any premises where Aquaflow believes the Materials are kept and recover possession of the Materials;
Aquaflow may recover possession of any Materials in transit whether or not delivery has occurred;
the Client shall not charge or grant an encumbrance over the Materials nor grant nor otherwise give away any interest in the Materials while they remain the property of Aquaflow; and
Aquaflow may commence proceedings to recover the Price of the Materials sold notwithstanding that ownership of the Materials has not passed to the Client.
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 Materials that have previously been supplied and that will be supplied in the future by Aquaflow to the Client and the proceeds from such Materials.
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 Materials charged thereby;
not register, or permit to be registered, a financing statement or a financing change statement in relation to the Materials or the proceeds of such Materials in favour of a third party without the prior written consent of Aquaflow; and
immediately advise Aquaflow 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.
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, and 131 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 14.1 to 14.5.
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.
Security and Charge
In consideration of Aquaflow agreeing to supply the Works, the Client charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Client either now or in the future, and the Client grants a security interest in all of its present and after-acquired property, 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 terms of the charge and security interest are the terms of Memorandum 2018/4344 registered pursuant to s.209 of the Land Transfer Act 2017.
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.
Defects and Returns
The Client shall inspect the Materials 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 Materials within a reasonable time following delivery if the Client believes the Materials are defective in any way. If the Client shall fail to comply with these provisions the Materials shall be presumed to be free from any defect or damage. For defective Materials, which 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 Materials or repairing the Materials.
Returns will only be accepted provided that:
the Client has complied with the provisions of clause 16.1; and
Aquaflow has agreed in writing to accept the return of the Materials; and
the Materials are returned at the Client’s cost within fourteen (14) days of the delivery date; and
Aquaflow will not be liable for Materials which have not been stored or used in a proper manner; and
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.
Aquaflow may (in its discretion) accept the return of Materials for credit but this may incur a handling fee of twenty percent (20%) of the value of the returned Materials plus any freight.
Subject to clause 16.1, non-stocklist items or Materials made to the Client’s specifications are under no circumstances acceptable for credit or return.
Warranties
Subject to the conditions of warranty set out in clause 17.2 Aquaflow warrants that if any defect in any Materials manufactured or Works provided by Aquaflow becomes apparent and is reported to Aquaflow within twelve (12) months of the date of delivery (time being of the essence) then Aquaflow will either (at Aquaflow’s sole discretion) replace or remedy the defect.
The conditions applicable to the warranty given by clause 17.1 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 Materials or serviced item; or
failure on the part of the Client to follow any instructions or guidelines provided by Aquaflow; or
any use of any Materials or serviced item otherwise than for any application specified on a quote or order form; or
the continued use of any Materials or serviced item 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 Materials not manufactured by Aquaflow, the warranty shall be the current warranty provided by the manufacturer of the Materials. 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 Materials.
Consumer Guarantees Act 1993
If the Client is acquiring Materials for the purposes of a trade or business, the Client acknowledges that the provisions of the Consumer Guarantees Act 1993 (“CGA”) do not apply to the supply of Materials by Aquaflow to the Client.
Intellectual Property
Where Aquaflow has designed, drawn, written plans or a schedule of Works, or created any products for the Client, then the copyright in all such designs, drawings, documents, plans, schedules and products shall remain vested in Aquaflow, and shall only be used by the Client at Aquaflow’s discretion. Under no circumstances may such designs, drawings and documents be used without the express written approval 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, plans or products which Aquaflow has created for the Client.
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).
Further to any other rights or remedies Aquaflow may have under this Contract, if a Client has made payment to Aquaflow, and the transaction is subsequently reversed, the Client shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by Aquaflow under this clause 20, where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Client’s obligations under this Contract.
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 has exceeded any applicable credit limit provided by Aquaflow;
the Client becomes insolvent or bankrupt, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.
Cancellation
Without prejudice to any other rights or remedies Aquaflow may have, if at any time the Client 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 Client of such notice/s) then Aquaflow may suspend or terminate the supply of the Works. 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.
Aquaflow may cancel any contract to which these terms and conditions apply or cancel delivery of Works at any time before the Works are commenced by giving written notice to the Client. On giving such notice Aquaflow shall repay to the Client any sums paid in respect of the Price, less any amounts owing by the Client to Aquaflow for Works already performed. Aquaflow shall not be liable for any loss or damage whatsoever arising from such cancellation.
In the event that the Client cancels the delivery of Works the Client shall be liable for any and all loss incurred (whether direct or indirect) by Aquaflow as a direct result of the cancellation (including, but not limited to, any loss of profits).
Cancellation of orders for products made to the Client’s specifications, or for non-stocklist items, will definitely not be accepted once production has commenced, or an order has been placed.
Privacy Policy
All emails, documents, images or other recorded information held or used by Aquaflow is “Personal Information” as defined and referred to in clause 22.3 and therefore considered confidential. Aquaflow acknowledges its obligation in relation to the handling, use, disclosure and processing of Personal Information pursuant to the Privacy Acts 1993 and 2020 (“the Act”) including Part II of the OECD Guidelines and as set out in the Act. Aquaflow acknowledges that in the event it becomes aware of any data breaches and/or disclosure of the Client’s Personal Information, held by Aquaflow that may result in serious harm to the Client, Aquaflow will notify the Client in accordance with the Act. Any release of such Personal Information must be in accordance with the Act and must be approved by the Client by written consent, unless subject to an operation of law.
Notwithstanding clause 22.1, privacy limitations will extend to Aquaflow in respect of Cookies where the Client utilises Aquaflow’s website to make enquiries. Aquaflow 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 Client’s:
IP address, browser, email client type and other similar details;
tracking website usage and traffic; and
reports are available to Aquaflow when Aquaflow sends an email to the Client, so Aquaflow may collect and review that information (“collectively Personal Information”)
If the Client consents to Aquaflow’s use of Cookies on Aquaflow’s website and later wishes to withdraw that consent, the Client may manage and control Aquaflow’s privacy controls via the Client’s web browser, including removing Cookies by deleting them from the browser history when exiting the site.
The Client authorises Aquaflow or Aquaflow’s agent to:
access, collect, retain and use any information about the Client;
(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 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 22.3 are authorities or consents for the purposes of the Privacy Act 1993 and 2020.
The Client shall have the right to request (by e-mail) from Aquaflow, a copy of the Personal Information about the Client retained by Aquaflow and the right to request that Aquaflow correct any incorrect Personal Information.
Aquaflow will destroy Personal Information upon the Client’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.
The Client can make a privacy complaint by contacting Aquaflow via e-mail. Aquaflow 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 Client is not satisfied with the resolution provided, the Client can make a complaint to the Privacy Commissioner at http://www.privacy.org.nz.
Suspension of Works
Where the Contract is subject to section 24A of the Construction Contracts 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 in accordance with clause 7.5 and/or any subsequent amendments or new legislation 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 Contract and Commercial Law Act 2017; 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;
due to any act or omission by the Client, the Client effectively precludes Aquaflow from continuing the Works or performing or complying with Aquaflow’s obligations under this Contract, then without prejudice to Aquaflow’s other rights and remedies, Aquaflow may suspend the Works immediately after serving on the Client 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 Aquaflow as a result of such suspension and recommencement shall be payable by the Client as if they were a variation.
If pursuant to any right conferred by this Contract, Aquaflow suspends the Works and the default that led to that suspension continues un-remedied subject to clause 21.1 for at least ten (10) working days, Aquaflow shall be entitled to terminate the Contract, in accordance with clause 21.
Service of Notices
Any written notice given under this Contract shall be deemed to have been given and received:
by handing the notice to the other party, in person;
by leaving it at the address of the other party as stated in this Contract;
by sending it by registered post to the address of the other party as stated in this Contract;
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;
if sent by email to the other party’s last known email address.
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.
Trusts
If the Client at any time upon or subsequent to entering in to the Contract is acting in the capacity of trustee of any trust (“Trust”) then whether or not Aquaflow may have notice of the Trust, the Client covenants with Aquaflow as follows:
the Contract extends to all rights of indemnity which the Client now or subsequently may have against the Trust and the trust fund;
the Client has full and complete power and authority under the Trust to enter into the Contract and the provisions of the Trust do not purport to exclude or take away the right of indemnity of the Client against the Trust or the trust fund. The Client will not release the right of indemnity or commit any breach of trust or be a party to any other action which might prejudice that right of indemnity;
the Client will not without consent in writing of Aquaflow (Aquaflow will not unreasonably withhold consent), cause, permit, or suffer to happen any of the following events:
the removal, replacement or retirement of the Client as trustee of the Trust;
any alteration to or variation of the terms of the Trust;
any advancement or distribution of capital of the Trust; or
any resettlement of the trust property.
General
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 section 26 of the Construction Contracts Act 2002 and/or by arbitration in accordance with the Arbitration Act 1996 or its replacement(s).
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.
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 Nelson, New Zealand.
Subject to the CGA, 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 Works).
Aquaflow may licence and/or assign all or any part of its rights and/or obligations under this Contract without the Client’s consent.
The Client cannot licence or assign without the written approval of Aquaflow.
Aquaflow may elect to subcontract out any part of the Works but shall not be relieved from any liability or obligation under this Contract by so doing. Furthermore, the Client agrees and understands that they have no authority to give any instruction to any of Aquaflow’s sub-contractors without the authority of Aquaflow.
The Client agrees that Aquaflow may amend their general terms and conditions for subsequent future contracts with the Client by disclosing such to the Client in writing. These changes shall be deemed to take effect from the date on which the Client accepts such changes, or otherwise at such time as the Client makes a further request for Aquaflow to provide Works 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, 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. This clause does not apply to a failure by the Client to make a payment to Aquaflow.
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.