TERMS AND CONDITIONS

 

 

These Terms of Trade apply to all goods, services and works supplied by JWI Earthmoving Limited (“JWI”, “we”, “us”, “our”) to the person or entity engaging JWI (“Customer”, “you”, “your”).

 

1.1 These Terms apply to every quotation, estimate, work order, purchase order, contract, supply of goods and performance of services by JWI unless JWI expressly agrees otherwise in writing.

1.2 The Customer accepts these Terms by:

(a) accepting a quotation or estimate;

(b) issuing a purchase order;

(c) instructing JWI to commence or continue work;

(d) permitting JWI, its employees, contractors or equipment to enter the site and undertake work;

(e) receiving goods or services from JWI; or

(f) otherwise agreeing in writing or electronically to engage JWI.

1.3 Any terms contained in a Customer’s purchase order, procurement system or other document do not override these Terms unless expressly accepted in writing by an authorised representative of JWI.

1.4 If there is any inconsistency between documents, the following order of precedence applies unless agreed otherwise:

(a) a specifically negotiated written contract signed by JWI;

(b) JWI’s quotation or scope of works;

(c) these Terms of Trade;

(d) any other project documents.

 

 

2.1 Unless otherwise stated, quotations are valid for 30 days.

2.2 All prices are exclusive of GST unless expressly stated otherwise.

2.3 A quotation based on estimated quantities, dimensions, volumes, tonnages, hours or measurements will be adjusted to reflect actual quantities or work performed unless the quotation expressly states that it is a fixed lump sum.

2.4 Estimates are estimates only and are not fixed-price quotations.

2.5 JWI may adjust pricing where:

(a) the scope or quantity changes;

(b) information supplied by the Customer is incorrect or incomplete;

(c) site conditions differ materially from those reasonably anticipated;

(d) the Customer delays commencement or completion;

(e) supplier prices, fuel, freight, levies or statutory charges materially increase after the quotation validity period; or

(f) additional work is reasonably required to complete the instructed works.

 

 

3.1 JWI is required to undertake only the work expressly included in its quotation or agreed scope.

3.2 Any work not specifically included is excluded.

3.3 Unless expressly included, JWI is not responsible for:

(a) professional engineering or design;

(b) surveying or legal boundary confirmation;

(c) resource or building consents;

(d) utility connection fees;

(e) testing by independent laboratories;

(f) contaminated material;

(g) archaeological or heritage matters;

(h) unknown underground services;

(i) rock excavation;

(j) groundwater or dewatering;

(k) unsuitable subgrade or ground improvement;

(l) imported fill or disposal outside quantities allowed for; or

(m) reinstatement outside the agreed work area.

 

 

4.1 A variation includes any change to the scope, quantity, method, sequence, timing or conditions of the work.

4.2 JWI may charge for a variation where it is:

(a) requested or instructed by the Customer;

(b) reasonably necessary due to conditions encountered;

(c) required because information supplied by the Customer was incorrect or incomplete;

(d) caused by delay or interference outside JWI’s control; or

(e) required to comply with law, health and safety requirements or directions from an authority.

4.3 Variations may be instructed verbally, electronically or in writing by the Customer or by any person whom JWI reasonably believes has authority to give instructions on the Customer’s behalf.

4.4 Where practicable, JWI will advise the Customer of the likely cost of a variation before undertaking it. Failure to agree a price in advance does not prevent JWI from recovering the reasonable value of the additional work.

4.5 Variations will be charged at agreed rates or, where no rates have been agreed, at JWI’s applicable labour, plant, material, subcontractor and margin rates.

 

 

5.1 Pricing is based on the site conditions reasonably apparent or disclosed to JWI at the time of quotation.

5.2 The following will constitute latent or unforeseen conditions where they could not reasonably have been identified before commencement:

(a) rock;

(b) buried concrete or structures;

(c) unsuitable or unstable soils;

(d) soft ground;

(e) buried rubbish;

(f) contaminated soil;

(g) asbestos;

(h) groundwater;

(i) unknown drains, cables or services;

(j) archaeological material;

(k) unexpected fill;

(l) ground requiring additional stabilisation or undercutting; and

(m) any other materially different physical condition.

5.3 Additional work, delay, plant, material, disposal, testing, dewatering or remediation resulting from such conditions will be treated as a variation.

 

 

6.1 The Customer must disclose all known underground and overhead services and provide all available plans and information.

6.2 The Customer must advise JWI of any private services that are not shown on public utility records, including farm waterlines, electrical cables, drainage, irrigation systems, septic systems and communications cables.

6.3 JWI will take reasonable care when working around known services but does not warrant the accuracy or completeness of plans or service-location information supplied by others.

6.4 JWI will not be liable for damage to an incorrectly located, unidentified or undisclosed service except to the extent the damage was caused by JWI failing to exercise reasonable care.

6.5 Any additional work or delay caused by unidentified or incorrectly located services is a variation.

 

 

The Customer must:

(a) provide JWI with safe and reasonable access to the site;

(b) obtain all permissions, approvals and consents for which the Customer is responsible;

(c) ensure the site is available when JWI is programmed to undertake work;

(d) provide accurate plans, specifications and information;

(e) identify known hazards;

(f) ensure other contractors do not unreasonably interfere with JWI’s works;

(g) provide any Customer-supplied materials, plant or information when required; and

(h) promptly make decisions and provide instructions required for progress.

 

 

8.1 Any commencement or completion date given by JWI is an estimate unless expressly agreed as a binding date.

8.2 JWI is entitled to a reasonable extension of time where work is delayed by circumstances outside its reasonable control, including:

(a) adverse weather;

(b) unsuitable ground;

(c) Customer delay;

(d) variation;

(e) other contractors;

(f) shortage or late delivery of materials;

(g) breakdown beyond reasonable preventative measures;

(h) utility companies;

(i) public authorities;

(j) industrial action;

(k) natural disaster;

(l) transport disruption; or

(m) other events beyond JWI’s reasonable control.

8.3 Where delay is caused by the Customer or another party for whom the Customer is responsible, JWI may charge reasonable costs arising from that delay, including:

(a) standby;

(b) idle plant;

(c) labour;

(d) remobilisation;

(e) demobilisation;

(f) storage;

(g) additional supervision; and

(h) increased supplier or subcontractor costs.

 

 

9.1 Unless otherwise agreed, quantities of aggregates, concrete, soil, spoil and other bulk materials will be charged on actual delivered, weighed, measured or calculated quantities.

9.2 Disposal pricing assumes material is suitable for the disposal destination contemplated when quoted.

9.3 Contaminated, hazardous, wet or otherwise unsuitable material requiring special handling or disposal will be charged as a variation.

9.4 Where material is supplied by the Customer, JWI is not responsible for defects caused by the suitability or quality of that material unless JWI expressly accepted responsibility for it.

 

 

10.1 JWI may engage subcontractors and suppliers to perform any part of the works.

10.2 JWI remains responsible to the Customer for work performed by its subcontractors to the extent required under the relevant contract and law.

 

 

11.1 JWI may issue:

(a) deposit invoices;

(b) progress claims;

(c) monthly invoices;

(d) milestone invoices; and

(e) a final invoice.

11.2 Payment is due on the date stated in the quotation, contract, payment claim or invoice.

11.3 Unless another payment term is expressly stated, payment is due on the 20th day of the month following the invoice date.

11.4 The Customer must pay all undisputed amounts when due notwithstanding that another amount is disputed.

11.5 The Customer may not deduct, set off or withhold amounts except where expressly permitted by the contract or by law.

11.6 JWI may apply any payment received against interest, collection costs and principal in such order as JWI reasonably determines.

 

 

12.1 Where the Construction Contracts Act 2002 applies, JWI may issue payment claims under that Act.

12.2 Unless otherwise expressly agreed, any payment schedule responding to a payment claim must be provided to JWI within 10 working days after service of the payment claim.

12.3 Nothing in these Terms limits any right JWI has under the Construction Contracts Act, including the right to recover unpaid claimed or scheduled amounts, refer disputes to adjudication or suspend work.

The Act permits the contract to set the mechanism for payment, and where no mechanism has been agreed the statutory default provisions apply. A payer that fails to provide a payment schedule within the contractual period, or otherwise within the statutory default period, can become liable for the claimed amount.

 

 

13.1 Any amount not paid by its due date will bear interest at 20% per annum, calculated daily from the due date until the date JWI receives payment in full.

13.2 The daily interest rate is:

13.3 Interest continues to accrue before and after judgment to the extent permitted by law.

13.4 Acceptance by JWI of part payment does not waive JWI’s right to recover the balance, interest or recovery costs.

 

 

14.1 The Customer must pay all reasonable costs and expenses incurred by JWI in recovering any overdue amount, in addition to the underlying debt and interest.

14.2 Those costs include, where applicable:

(a) debt collection agency fees;

(b) solicitor and legal fees;

(c) court filing fees;

(d) adjudication and enforcement costs;

(e) tracing and investigation costs;

(f) PPSR enforcement costs;

(g) repossession costs; and

(h) other reasonable expenses incurred in recovering payment.

 

 

15.1 JWI may suspend work where:

(a) an amount due to JWI remains unpaid;

(b) the Customer has materially breached the agreement;

(c) JWI reasonably considers that payment is at material risk;

(d) the site is unsafe;

(e) required instructions or access have not been provided; or

(f) JWI otherwise has a statutory right to suspend.

15.2 Where the Construction Contracts Act applies, JWI will comply with any statutory notice requirements before exercising a statutory suspension right.

Under the Act, where the statutory criteria are satisfied and the required notice has been served, a contractor can suspend after the unpaid amount remains outstanding for five working days following that notice.

15.3 The Customer is responsible for JWI’s reasonable standby, demobilisation and remobilisation costs arising from a suspension caused by the Customer’s breach or non-payment.

15.4 Suspension does not waive JWI’s right to payment.

 

 

16.1 The Customer may cancel work by giving written notice.

16.2 Where the Customer cancels after accepting JWI’s quotation, the Customer must pay:

(a) all work completed to the cancellation date;

(b) materials ordered or committed;

(c) subcontractor commitments;

(d) mobilisation and demobilisation costs;

(e) cancellation charges imposed by third parties; and

(f) other reasonable costs incurred by JWI as a result of the cancellation.

16.3 JWI may terminate the agreement for material breach if the Customer fails to remedy that breach within a reasonable period after receiving notice.

16.4 JWI may terminate immediately where the Customer becomes insolvent, enters liquidation, receivership or administration, or otherwise indicates that it is unable to pay its debts.

 

 

17.1 To the extent legally possible, title to goods and materials supplied by JWI remains with JWI until all amounts owing in respect of those goods have been paid in full.

17.2 Risk in goods passes to the Customer when the goods are delivered to the site or otherwise placed under the Customer’s control.

17.3 Where the Customer is acquiring goods in trade, the Customer grants JWI a security interest under the Personal Property Securities Act 1999 in:

(a) goods and materials supplied by JWI that remain capable of being subject to a security interest;

(b) replacement or substituted goods; and

(c) proceeds of that collateral,

to secure payment of amounts owing in connection with those goods.

17.4 The Customer authorises JWI to register, maintain and amend financing statements necessary to perfect that security interest.

17.5 The Customer must provide information reasonably required by JWI for PPSR registration.

 

 

18.1 Where the Customer applies for credit, the Customer authorises JWI, to the extent permitted by law, to obtain credit information from credit reporting agencies, trade referees and other relevant sources.

18.2 The Customer authorises JWI to provide relevant information to debt collection agencies, credit reporting agencies and professional advisers where reasonably required for credit assessment or debt recovery.

18.3 Personal information will be handled in accordance with applicable privacy law and JWI’s privacy policy.

 

 

19.1 If the Customer believes JWI’s work is defective, the Customer must notify JWI as soon as reasonably practicable after discovering the alleged defect.

19.2 The Customer must provide JWI a reasonable opportunity to inspect the alleged defect.

19.3 Where JWI is responsible for the defect, JWI must be given a reasonable opportunity to rectify it before the Customer engages another contractor, except where immediate work is reasonably required to prevent injury or material damage.

19.4 JWI is not responsible for defects caused by:

(a) Customer design;

(b) inaccurate information supplied by others;

(c) materials supplied by the Customer;

(d) work carried out or altered by others;

(e) normal wear and tear;

(f) lack of maintenance; or

(g) circumstances outside JWI’s reasonable control.

 

 

20.1 To the maximum extent permitted by law, JWI is not liable for indirect or consequential loss, including:

(a) loss of profit;

(b) loss of production;

(c) loss of opportunity;

(d) business interruption;

(e) financing costs; or

(f) consequential economic loss.

20.2 Subject to rights that cannot lawfully be excluded, JWI’s aggregate liability arising from a particular contract will not exceed the amount paid or payable to JWI under that contract.

20.3 The liability limitation does not apply to fraud, deliberate misconduct or any liability that cannot legally be excluded or limited.

20.4 The Customer must take reasonable steps to mitigate any loss.

 

 

21.1 The Customer acknowledges that earthmoving equipment and heavy vehicles may cause unavoidable disturbance to accessways, lawns, paddocks and unengineered surfaces.

21.2 JWI will exercise reasonable care but is not liable for damage to an existing surface that is not reasonably capable of supporting the plant or vehicle required for the works, unless JWI expressly accepted responsibility for protection or reinstatement of that surface.

21.3 The Customer must disclose any known weight restrictions, weak structures, septic tanks, buried tanks, culverts or other risks before JWI accesses the site.

 

 

22.1 Each party must comply with its obligations under applicable health and safety legislation.

22.2 The Customer must disclose known site hazards and provide JWI with relevant site safety information.

22.3 JWI may stop or refuse work where JWI reasonably considers the work cannot be undertaken safely.

22.4 Delay or additional cost caused by an undisclosed Customer-controlled hazard may be treated as a variation.

 

 

23.1 Where the Customer acquires JWI’s goods or services for business purposes and both parties are in trade, the parties agree, to the maximum extent permitted by law and where it is fair and reasonable, that the Consumer Guarantees Act 1993 does not apply.

23.2 Where the Customer is a consumer and the Consumer Guarantees Act applies, nothing in these Terms excludes or limits rights that cannot legally be excluded.

The business-to-business exclusion needs to satisfy the statutory requirements, rather than simply saying “CGA does not apply.”

 

 

24.1 Where both parties are in trade, the agreement is in writing and it is fair and reasonable to do so, the parties agree to contract out of sections 9, 12A, 13 and 14(1) of the Fair Trading Act 1986 to the extent permitted by section 5D of that Act.

24.2 Nothing in these Terms permits either party to engage in fraud or other conduct that cannot lawfully be excluded.

Those are the specific Fair Trading Act provisions for which section 5D permits business parties to contract out when its requirements are satisfied.

 

 

25.1 A party raising a dispute must provide reasonable details of the issue to the other party.

25.2 The parties will first attempt to resolve the dispute by good-faith discussion between authorised representatives.

25.3 If the dispute is not resolved, either party may propose mediation.

25.4 Nothing in this clause prevents:

(a) JWI recovering an undisputed or overdue debt;

(b) either party seeking urgent court relief; or

(c) either party exercising rights under the Construction Contracts Act, including adjudication.

 

 

JWI is not responsible for failure or delay caused by events outside its reasonable control, including natural disasters, flood, severe weather, fire, epidemic, government action, war, civil disturbance, supply-chain interruption, industrial action or utility failure.

JWI will take reasonable steps to minimise the effect of such an event.

 

 

The Customer may not assign or transfer its rights or obligations under an agreement with JWI without JWI’s prior written consent, which will not be unreasonably withheld.

JWI may assign debts owing to it or appoint a third party to collect them.

 

 

28.1 A failure or delay by JWI to exercise a right is not a waiver of that right.

28.2 If any provision of these Terms is held invalid or unenforceable, the remaining provisions continue in force.

 

 

JWI may amend these Terms from time to time.

Any amended Terms apply to future quotations, orders and engagements after publication and do not retrospectively alter an existing accepted contract unless the Customer agrees.

 

 

These Terms and every agreement between JWI and the Customer are governed by the laws of New Zealand, and the parties submit to the jurisdiction of the New Zealand courts.