“CCA” means the Construction Contracts Act 2002 and includes (without limitation) all the terms defined under that Act and in particular:
- “commercial construction contract”
- “construction site”
- “construction work”
- “customized components”
- “claimed amount”
- “payment claim”
- “payment schedule”
- “progress payment”
- “scheduled amount”
- “notice of adjudication”
“Contract “means our acceptance of your order or request for goods and/or services to be supplied by us. If your order is of a continuing nature or is a progress type order, these conditions of sale will apply to the whole of any such period of supply or delivery of services.
“We” “us” and “our” refers to Southern Cross Engineering Limited or Wilson Engineering Systems Limited.
“Working day” means any day of the week other than:
- Saturday, Sunday, Waitangi Day, Good Friday, Easter Monday, ANZAC Day, the Sovereign’s Birthday and Labour Day; and
- A day in the period commencing on the 24th day of December in any year and ending on the 5th day of January in the following year, both days inclusive; and
- A day observed as the anniversary of any province in which the construction work is carried out. A working day shall be deemed to commence at 8am and terminate at 4.30pm.
“You” and “your” refers to the buyer of our goods and services.
2. STRUCTURE OF THESE CONDITIONS
These conditions of sale are divided into twelve (12) parts, each of which deals with a separate aspect of the obligations that we may have to you and you may have to us. You will be deemed to have read, understood and agreed to all these conditions of sale. Unless these conditions of sale contain agreed and recorded variations the terms and conditions are only those contained herein. Any terms and conditions attached to your order that are inconsistent with or do not appear in these conditions of sale shall have no effect whatsoever. These conditions of sale are paramount and will apply and supersede all previous representations, negotiations, commitments and communications either written or oral between the parties.
PART ONE – QUOTATION & PRELIMINARY
Our quotation includes only such goods accessories and work as are specified therein and refers only to that enquiry to which it specifically relates.
4. ACCEPTANCE OF QUOTATION
Unless previously withdrawn by us, our quotation is open for acceptance for the period stated therein or where no period is stated for 25 working days only from the date hereof.
5. INITIAL CANCELLATION RIGHTS
We shall be entitled to cancel without any penalty whatsoever any contract resulting from your acceptance of our quotation, provided such cancellation is communicated to you within 7 working days of your acceptance of our original quotation. In the event of you cancelling any order after acceptance you shall pay to us as a genuine pre-estimate of the damages which we will suffer as a result of such cancellation, an amount equal to 20% of the gross value of the contract as detailed in our quotation.
6. SUITABILITY FOR BUYER’S PURPOSE
You must satisfy yourself that the goods as ordered are fit and suitable for the purposes for which they are required by you and we give no warranty nor will accept any liability in respect of their fitness or suitability for your purposes. If there is any matter or thing that has not been the subject of any payment schedule issued by you, and by reason whereof you allege that the goods are not in accordance with the contract, notice thereof shall be given in writing to us immediately; if you fail to give such notice within 20 working days after the arrival of the goods at the place of delivery, the goods shall be deemed to be in all respects in accordance with the contract. If such notice is given, you shall facilitate a proper investigation by us of any defect or complaint. In any event and as provided in PART ELEVEN hereof there shall not be any liability on us for any indirect or consequential loss, injury or damage caused or alleged to have arisen by reason of any failure or defect whatsoever in respect of any goods supplied.
7. CONSTRUCTION WORK
You agree that for all purposes the contract is a Commercial Construction Contract as defined in CCA and that save as expressly modified herein the provisions of CCA apply.
PART TWO – PRICES
- All quotations and prices are in New Zealand currency at the exchange rate ruling at the day of quoting or pricing. The cost of any adjustment to, or variation of the contract, or of any addition to or modifications of the goods shall be in New Zealand currency at the exchange rate ruling at the date of such adjustment, variation, addition, or modification as is agreed to by us.
- All quotations and prices are based on costs of materials, labour rates, wages, freight (whether overseas, coastal or inland), foreign exchange, customs duty and primage ruling at the date of quotation and we reserve the right to adjust the same on account of any increases in such costs occurring before acceptance and confirmation and whether such are known to us at date of acceptance and confirmation or not. We also reserve the right to increase contract prices on account of any such increases occurring between the dates of acceptance and confirmation and completion of performance and notwithstanding anything herein before contained or implied in this clause we reserve the right to notify you of any overall increase in the contract price of goods manufactured and/or supplied by us occasioned by increases occurring in respect of any or all of the foregoing costs.
- Estimates, except where these involve preparation of special layout drawings and visits to sites for the purpose of obtaining information, shall be given free of charge.
Liability for any Government or Local Body tax or charge assessable against the product, goods or services supplied by us including any GST shall be to the buyer's account unless specifically included otherwise in our quotation.
Unless otherwise specified in the tender or quotation, packing shall be charged as an extra.
PART THREE – VARIATIONS / EXTRAS
Any variation to the equipment or goods and services provided in terms of these conditions (and which shall include any addition or modification to the equipment as requested by you) will result in our quotation and costings being adjusted to such extent as may be necessary having regard to the nature and extent of such additions or modifications. We shall notify you in writing of any required additions or modifications that arise as a result of anything requested by you and which are notified to us in writing after confirmation of order.
If, after confirmation of order, you request additional work this shall be charged by us as an extra but we will not be liable for any extra or additional work unless:
- You have first requested such work in writing and we have accepted the same; and
- You have agreed to pay the additional sum resulting from revision of our original quotation and order.
Notwithstanding any such variation or extra nothing shall change the other conditions of the quotations which shall continue to apply.
PART FOUR – CONTINGENCIES & DELIVERY
- We shall not be under any liability to you for failure to supply or install or for delays in supplying or installing if such failure or delay shall be occasioned by or be due to war or anticipated war loss, distraint or delays of shipping, strikes, lock outs, or trade disputes destruction or damage by fire, flood, tempest or earthquake, failure of power, machinery, plan, premises or transport; subcontractors non-availability, delay in delivery of raw materials non-availability of Government import or export licences, or permits; the necessity of conforming with any statutes, rules, orders or regulations issued by any Government, Council or other competent authority or the happening of any other matter or event whether of a like nature to those above mentioned or otherwise whatsoever. In the event of part performance only on account of any such clause you shall pay us for any work done, materials provided or expenditure incurred under this contract. All items quoted as "ex-stock" are subject to prior sale.
- This quotation is based on designs made or concepts contemplated for the purpose(s) of this quotation. Whenever full manufacturing design(s) and/or drawing(s) are not available to us at the time of our quotation, or in the event that the design(s), drawing(s) and/or concepts on which this quotation is (are) based is (are) found to require modification, we reserve the right to vary the price(s) of this quotation to allow us to recover our normal charge out rates for labour and materials for the extra costs related to any change in any contemplated design, concept or modification of drawings.
- Any times quoted for delivery are to date from receipt by us of a written order to proceed and of all necessary information and drawings to enable us to put the work in hand and the dispatch of confirmation by us pursuant to clause 4 hereof. All such times are to be treated as estimates only not involving us in any liability for failure to dispatch within such time. If in terms of any quotation we agree to supply or deliver by a specified date and that date has been recorded we will not be liable to you unless you have suffered actual loss and the amount payable in respect thereof shall have been earlier agreed by us in writing as liquidated damages. In such case our liability shall be limited to the amount so agreed to be paid. In all cases whether a time for delivery be quoted or not, the time for delivery shall be extended by a reasonable period if delay in delivery is caused by instructions or lack or instructions from you or by industrial dispute or by any other cause whatsoever beyond our reasonable control.
- Unless otherwise specified the quoted prices are ex-factory. Loading by our staff shall be charged as an extra.
16. BILLS OF LADING ETC
Bills of Lading, shipping receipts, consignment notes and carriers’ receipts shall be evidence of time of shipment or dispatch; the fact that the goods are in good order and condition; and they may contain special conditions required by the carrier.
PART FIVE – DRAWINGS & PLANS
17. DRAWINGS, ETC
All drawings dies, patterns and jigs shall remain our property with the copyright and design remaining with us. Unless otherwise specifically agreed by us, all drawings, descriptive matter, weights and dimensions submitted with this quotation or otherwise made available to you, are approximate only and are intended merely to present a general idea of the goods and manufacture described therein and none of these shall form part of the contract nor represent any warranty as to performance, output or loading.
18. BUYER'S PLANS, ETC
- If this contract involves supply by a third party of equipment which we are required to incorporate or manufacture as part of the work we are to perform for you under this contract, then and in such case:
- The terms and conditions herein shall prevail and be paramount; and
- Except as is otherwise expressly agreed by us, the warranties provided in clause 28 shall not apply and nor shall the limitation of liability in clause 29 apply. Rather our liability and any warranty will be limited to such warranties as the manufacturer or supplier of that particular equipment shall by the terms of its contract give and we shall have no further liability to you beyond those terms.
- In every case in which we undertake to manufacture goods according to plans, designs or samples submitted by you and in any other case where the design has not been submitted by us, it shall be implied in the Conditions of Sale (whether the same are those used by us or not) that you will indemnify us against any claim for damages or otherwise based on infringement of letters patent, trademark, registered design copyright or any like claim and all costs and expenses occasioned by any such claim. It is also acknowledged by you that design faults or unsuitability of the plant for your purposes arising from our manufacture of the goods and plant to such plans, designs or samples submitted by you shall be your sole responsibility and at your cost. The provisions of PART ELEVEN hereof shall not apply in such circumstance.
PART SIX – SITE WORK
19. SITE WORK
- Unless otherwise specified, construction site work shall be charged to you as an extra. Where work is carried out outside of normal working hours an additional charge will be made to cover the increased cost of labour and insurance. The cost of accommodation and travelling to and from the construction site shall be charged at cost plus 10%. Once each and every week, time records detailing hours worked shall be submitted by us and be signed by you as acceptance of the time worked and work performed and such records shall form the basis of our payment claim under this clause. Failure to sign time records shall in no way affect your liability to pay for the work performed but refusal to sign time records shall, notwithstanding any requirement in terms of any payment schedule, be communicated to the registered office of the Company within 1 working day for the purpose of settling forthwith any dispute arising therefrom. Visits by our authorized agent to the construction site shall be charged to you.
- You will hold us indemnified for any damage to our works that is occasioned by you, your employees, contractors and invitees at any construction site.
PART SEVEN – RISKS & LOSS
20. LOSS OF CARRIER
In the event or any vessel or aircraft carrying goods under this contract being lost or destroyed, we shall not be liable to replace the goods lost as a consequence thereof nor for any indirect or consequential loss or damage in respect thereof. Our liability in such case shall be limited to insurance paid by the carrier.
21. MARINE, WAR RISK AND OTHER INSURANCE
Except where expressly provided for in the specification on which the tender is based or expressly stated in the quotation and accepted by us in writing and then only to the extent specified, we reserve the right to insure the goods to their full insurable value by us at your expense from the date of leaving our premises and until payment in full is made by you although the goods are in your possession. The proceeds of any claim under the insurance policies shall be applied firstly in payment of all costs and expenses incurred by us in formulating and obtaining payment in respect of the claim and secondly in satisfaction or reduction of any amount owing to us for the goods under any payment claims.
PART EIGHT – PAYMENT TERMS
- Payment in full will be due to us on the issue of a payment claim which shall provide (in the absence of any special terms under sub-clause (vi) hereof or clause 19(i) hereof) for payment to be made on the 20th of the month following that month in which goods or any separate unit thereof or construction site work or installation work reaches the state of practical completion, or has reached a state of being capable of use for its intended purpose and delivered or ready for dispatch from our works or the construction site where work is performed unless otherwise stated in the quotation. In the absence of your providing a payment schedule within 20 working days from the date of issue of a payment claim and serving that payment schedule on us, you will become liable to pay the claimed amount.
- Where, through circumstances beyond our control, delivery of equipment cannot be made after it is completed, or delays occur that affect our ability to progress the work in a timely manner, we reserve to make claims for all work executed to date on this contract, including de-establishment and re- establishment costs and payment will be due to us on the 20th of the month following issue of a payment claim.
- No settlement discount is allowed.
- Where the value of the goods and/or work is in excess of the sum of TWO THOUSAND DOLLARS ($2,000.00) the buyer shall, where so required by us, make progress payments on account of such goods and/or work to the extent of 90 per centum of the value of the work done in respect thereof by the last day of each and every month following the date of commencement of such work. Such payments shall be made in every case not later that the 20th day of the months respectively following issue of a payment claim and final payment shall be made on the 20th day of the month following the date of delivery or dispatch from our works and issue of a payment claim.
- Where for reasons beyond our control components have not been able to be delivered to you, the maximum amount that may be withheld from payment shall be the value of those components. If, however, progress is delayed due to reasons caused by you, your representatives or your subcontractors, then we reserve the right to claim for all work done to date. This includes contract dis-establishment and re- establishment costs.
- Notwithstanding anything stated above we reserve the right to nominate special terms of payment.
- Payment claims that have become liable for payment under Section 22 CCA shall bear interest at the rate of 20% per annum calculated monthly from the date on which such payment or payments become due until the date of actual payment thereof (including any period post-adjudication or judgment in any Court of competent jurisdiction) and will be recoverable as a liquidated debt due by you to us.
- In the event any payment claim due is not paid on its due date or a scheduled amount is not paid on its due date we reserve the right under section 24(2)(b) to serve notice on you of our intention to suspend the carrying out of construction work under the construction contract.
- If we are required to take any legal proceedings to recover any sums due and owing by you under the contract, then and in such case we shall be entitled to recover from you the actual costs incurred by us with our lawyers. These costs may be greater than costs which might be awarded to us by any Court and will be payable by you as a debt due and owing to us.
23. TITLE TO GOODS
The property in and title to the goods the subject of this contract shall not pass to you as buyer until payment in full for the said goods has been made. Until the date of payment you are required to identify and store the goods in such a way as to show that they remain our property. If the goods are or shall be (contrary to the requirement for separate identification or otherwise) incorporated in or added as an ingredient of some other plant or machinery you agree that the property in and title to the resultant plant or machinery is by virtue hereof transferred to us and that such ownership shall be retained by us until payment in full for the goods the subject of this contract or for any other goods or services supplied by us at any time has been made. Possession may be retained by you as our fiduciary agent. If in the normal course of your business or otherwise you shall sell the goods the subject or this contract or the plant or machinery incorporating the goods the subject of this contract the right of action for payment therefore or the payment received therefor shall be exercised and held by you on our behalf, and to our order, for the full payment and discharge there from of all amounts then or earlier owing by you to us. In the event the goods are supplied to you for the purposes of your completing a contract and you have not made payment to us by due date, you do hereby irrevocably constitute and appoint us as your lawful Attorney to require in your name your Principal and/or Head Contractor to make payment for the sum due by you to us, direct to us, and payment by the Principal and/or Head Contractor shall be deemed satisfaction to the extent of that payment of your liability to us hereunder. Notwithstanding any ownership of any goods supplied hereunder may have passed to you, in the event any goods are returned to us for whatever reason and you remain indebted to us in respect of any other sum or sums of money we shall have a right of lien over such goods and shall be entitled to retake possession and sell those goods to satisfy any sum or sums of money due and owing to us.
24. PERSONAL PROPERTY SECURITIES ACT 1999 (“The Act”)
- You agree the terms of clause 23 above constitute a security interest in the goods and their proceeds for the purposes of the Act.
- You shall promptly execute any document and provide any information required from time to time to enable us to take a perfected security interest in the goods and their proceeds in priority to all other secured parties.
- You shall reimburse us for all costs we incur in filing a financing statement or financing change statement under the Act in relation to goods supplied under these Conditions of Sale.
- The parties agree that that nothing in sections 114(1) (a), 133 and 134 of the Act shall apply to these Conditions of Sale.
- You agree you waive your rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, 131, and 132 of the Act.
- You agree you waive your right to receive a verification statement confirming registration of a financing statement or a financing change statement relating to a security interest created by this document.
- Where we have rights in addition to, or existing separately from those in Part 9 of the Act, those rights will continue to apply and in particular will not be limited by section 109 of the Act.
PART NINE – CANCELLATION
25. RIGHT TO CANCEL
If prior to payment of all monies payable hereunder you:
- Commit any breach or the terms, conditions, or provisions herein contained; or
- Shall die, become insolvent, or have any Bankruptcy Application presented or being a Company shall go into liquidation or Receivership or have a resolution to wind up passed or proposed or enter into any Voluntary Administration or have an Application for Winding Up presented or be unable to pay your debts within the meaning of the Companies Act 1993 (or any Act passed in amendment or substitution therefor); or
- Commit or cause any act or omission to occur which in our opinion in any way may prejudice the goods, then we may:
- Demand payment of the arrears as well as require payment in advance for any undelivered goods before delivery of those goods;
- Cancel this contract and any other contract between us, suspend or cancel your account, and/or cancel any outstanding orders by you and in each case seek damages;
- Appoint a receiver in respect of the goods (including the proceeds of the same). Any receiver so appointed may take possession of the goods and re-sell them and otherwise exercise the rights conferred by law on the Receiver; but
- Without affecting our right to recover any loss directly or indirectly sustained.
- In computing the losses sustained by us as a result of your default, damages shall include, as a genuine pre- estimate of our damages for the loss of use of our funds, interest on those funds at the rate of 20% per annum from the date in each case that such funds should have been paid to us, until the date, in each case, as such amounts are actually paid.
26. RIGHT TO REPOSSESS
If we have reasonable cause to believe a default has occurred under clause 25 (a)-(c) then, and despite Section 109 of the Personal Property Securities Act 1999 and our rights thereunder, we may take possession of the goods and any goods held by or returned to us for any reason. Possession of goods for this purpose may include the activation of any mechanical, electrical or electronic control arrangement by us to disable the operation of the equipment whilst leaving it in place, such activation being reversible only by us. For that purpose you give us leave and licence by our officers, servants and agents to enter into and if necessary to break into any building occupied by you or any building or land where the goods may be supposed to be, and as your agent to enter upon any other land or premises to search for and take possession of the goods without being liable to you or any one claiming under you for so doing. If the goods are so repossessed then all moneys payable under the contract and all other contracts shall become due together with all costs, expenses, interest and other charges payable hereunder.
PART TEN – PERFORMANCE & WARRANTIES
27. PERFORMANCE TESTS
All goods of our manufacture are carefully inspected and where practicable are subjected to our standard tests at our works prior to dispatch. Any performance figures supplied by us are based on our experience and are such as we would expect to obtain on test. We exclude liability on us if similar figures are not obtained by the purchaser unless the performance is specifically guaranteed by us in writing and a sum fixed in writing as liquidated damages for any breach. Any special tests required by the buyer prior to delivery must be specified with the order for the goods and all such tests shall be charged to the buyer as an extra unless otherwise agreed. No performance tests shall be valid or binding on us unless and until such time as a schedule of tests has been prepared and agreed by us and the test has been run and conducted strictly in accordance with such schedule.
The following warranty is given in lieu of and to the exclusion of any other guarantee condition or warranty either expressed or implied by statute or otherwise.
- We undertake to remedy with reasonable dispatch any original defects in any goods manufactured by us arising from faulty workmanship or materials which under proper and normal conditions of use may develop with in a period of sixty working days from the date on which they are put into operation limited to 90 working days from the date upon which the goods are delivered and subject to satisfactory storage during that time. If the period of time between delivery and commencement of operation is longer than three calendar months no liability under the terms of this warranty will be accepted unless the goods have been inspected and approved by our agent specifically authorised at the time they are ready to commence operation, and in which case the warranty period will be 20 working days from the date of his inspection. The cost of such inspection is to be borne by you.
- Any goods supplied or work done in remedying such defects shall not extend our liability under this clause beyond the time stipulated above. At the expiration of such time all further liability on our part shall cease. In no case shall we be liable for the fitting of such goods and goods replaced shall become our property.
- Any consequential damage arising howsoever including from defects, faulty materials, designs or workmanship in any goods supplied by us shall not extend our liability in any way whatsoever.
- This warranty is limited to the replacement or the repair of the faulty part at the factory where it was made and does not cover the cost of shipment to or from the factory. It does not cover any damage to other property or any indirect or consequential loss which may have occurred due to the failure of the faulty part nor the cost of removing the faulty part from any machine or building in which it is installed and/or replacing it therein. If defective parts are replaced or repaired by any person other than our employees or person previously authorised by us in writing we accept no responsibility for the efficiency of such repairs or the cost thereof.
- In the case of goods supplied pursuant to this contract that are not of our manufacture, including auxiliary components and materials included in the equipment such as prime movers, power transmission equipment, electrical and electronic equipment and software, bearings and protective coatings, we shall be liable only to the extent of the benefit of any warranty given to us in respect thereof by the original manufacturer and or supplier.
- Notwithstanding your obligation in relation to providing us with any payment schedule, notice in writing of any defect must be given to us with full particulars thereof within 20 working days of the defect becoming apparent.
- Any warranty is only available in the event that all our terms of payment are duly complied with by you.
We recognise and accept that despite the limitation clauses referred to above, we may have liabilities and obligations to you in both contract and in tort. These liabilities and obligations extend not only to the terms of our contract but also to the tasks and duties which we are required in terms of the contract to perform, and to the way in which we actually carry out those tasks and duties. You recognise and agree that under no circumstances whatsoever shall we be liable to you beyond the direct losses flowing from our contractual breach or tortious wrong doing. Accordingly we are not liable for any indirect or consequential loss or damages nor for any indirect or consequential costs or expenses that our breach or wrong may have caused you to incur. In respect of any liability that we may have to you for breach of any term of contract or negligence in respect of the way in which we enter into and perform our obligations to you, or otherwise in terms of any other claim and, to the extent permissible and whether at law, under Statute, in equity or in respect of any other task or duty imposed on us, it is specifically agreed by you that such liability shall be limited to:
Whichever is the lesser.
This contract shall in all respects be construed and governed by the Laws of New Zealand.
Either we or you may (and notwithstanding the issue or currency of any proceedings between us in a Court or Tribunal) refer a dispute to
adjudication by the issue of a notice of adjudication under section 28 CCA. Such notice of adjudication may incorporate our seeking an
adjudicator’s approval to the issue of a charging order in respect to a construction site owned by you.