Pure Water Services North Limited T/A Aqua Works & Warkworth Plumbing – Terms & Conditions of Trade

1. Definitions

1.1. “Contract” means the terms and conditions contained herein, together with any Quotation, order, invoice or other document or amendments expressed to be supplemental to this Contract.

1.2. “Aqua Works” means Pure Water Services North Limited T/A Aqua Works, its successors and assigns or any person acting on behalf of and with the authority of Pure Water Services North Limited T/A Aqua Works.

1.3. “Customer” means the person/s, entities or any person acting on behalf of and with the authority of the Customer requesting Aqua Works to provide the Works as specified in any proposal, quotation, order, invoice or other documentation, and:

(a) if the Customer is a partnership, it shall bind each partner jointly and severally; and

(b) if the Customer is a part of a Trust, shall be bound in their capacity as a trustee; and

(d) if there is more than one Customer, is a reference to each Customer jointly and severally; and

1.4. “Works” means all Works (including consultation, manufacturing and/or installation services) or Materials supplied by Aqua Works to the Customer at the Customer’s request from time to time (where the context so permits the terms ‘Works’ or ‘Materials’ shall be interchangeable for the other).

1.5. “Confidential Information” means information of a confidential nature whether oral, written or in electronic form including, but not limited to, this Contract, either party’s intellectual property, operational information, know-how, trade secrets, financial and commercial affairs, contracts, client information (including but not limited to, “Personal Information” such as: name, address, D.O.B, occupation, driver’s license details, electronic contact (email, Facebook or Twitter details), medical insurance details or next of kin and other contact information (where applicable), previous credit applications, credit history) and pricing details.

1.6. “Cookies” means small files which are stored on a user’s computer. They are designed to hold a modest amount of data (including Personal Information) specific to a particular client and website, and can be accessed either by the web server or the client’s computer. If the Customer does not wish to allow Cookies to operate in the background when ordering from the website, then the Customer shall have the right to enable / disable the Cookies first by selecting the option to enable / disable provided on the website, prior to ordering Works via the website.

1.7. “Price” means the Price payable (plus any Goods and Services Tax (“GST”) where applicable) for the Works as agreed between Aqua Works and the Customer in accordance with clause 5 below.

2. Acceptance

2.1. The Customer is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Customer places an order for or accepts delivery of any Works.

2.2. In the event of any inconsistency between the terms and conditions of this Contract and any other prior document or schedule that the parties have entered into, the terms of this Contract shall prevail.

2.3. Any amendment to the terms and conditions contained in this Contract may only be amended in writing by the consent of both parties.

2.4. In the event that Aqua Works is required to provide the Works urgently, that may require Aqua Works’ staff to work outside normal business hours (including but not limited to working through lunch breaks, weekends and/or Public Holidays) then Aqua Works reserves the right to charge the Client additional labour costs (penalty rates will apply), unless otherwise agreed between ua Works and the Client.

2.5. If ua Works has been requested by the Client to diagnose a fault that requires investigation, disassembly and/or testing, all costs involved will be charged to the Client irrespective of whether or not the repair goes ahead.

2.6. The Customer acknowledges that the supply of Works on credit shall not take effect until the Customer has completed a credit application with Aqua Works and it has been approved with a credit limit established for the account.

2.7. In the event that the supply of Works request exceeds the Customers credit limit and/or the account exceeds the payment terms, Aqua Works reserves the right to refuse delivery.

2.8. 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.

2.9. These terms and conditions may be meant to be read in conjunction with Aqua Works’ Hire Form, and:

(a) where the context so permits, the terms ‘Works or ‘Materials shall include any supply of Equipment, as defined therein; and

(b) if there are any inconsistencies between the two documents then the terms and conditions contained therein shall prevail.

3. Errors and Omissions

3.1. The Customer acknowledges and accepts that Aqua Works shall, without prejudice, accept no liability in respect of any alleged or actual error(s) and/or omission(s):

(a) resulting from an inadvertent mistake made by Aqua Works in the formation and/or administration of this Contract; and/or

(b) contained in/omitted from any literature (hard copy and/or electronic) supplied by Aqua Works in respect of the Works.

3.2. In the event such an error and/or omission occurs in accordance with clause 3.1, and is not attributable to the negligence and/or wilful misconduct of Aqua Works; the Customer shall not be entitled to treat this Contract as repudiated nor render it invalid.

4. Change in Control

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

5. Price and Payment

5.1. At Aqua Works’ sole discretion the Price shall be either:

(a) as indicated on invoices provided by Aqua Works to the Customer in respect of Works performed or Materials supplied; or

(b) Aqua Works’ Price at the date of delivery of the Works according to Aqua Works’ current price list; or

(c) Aqua Works’ quoted Price (subject to clause 5.2) which shall be binding upon Aqua Works provided that the Customer shall accept Aqua Works’ quotation in writing within thirty (30) days.

5.2. Aqua Works reserves the right to change the Price:

(a) if a variation to the Materials which are to be supplied is requested; or

(b) if a variation to the Works originally scheduled (including any applicable plans or specifications) is requested; or

(c) where additional Works are required due to the discovery of hidden or unidentifiable difficulties (including, but not limited to, poor weather conditions, prerequisite work by any third party not being completed, limitations in accessing the site, hard rock barriers below the surface, iron reinforcing rods in concrete, or hidden pipes and wiring in walls etc.) which are only discovered on commencement of the Works; or

(d) in the event of increases to Aqua Works in the cost of labour or materials (including, but not limited to, any variation as a result of fluctuations in currency exchange rates and/or international freight and insurance charges or increases to Aqua Works in the cost of taxes and levies, etc.) which are beyond Aqua Works’ control.

5.3. Variations will be charged on the basis of Aqua Works’ quotation, and will be detailed in writing, and shown as variations on Aqua Works’ invoice. The Customer shall be required to respond to any variation submitted by Aqua Works within ten (10) working days. Failure to do so will entitle Aqua Works 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.

5.4. At Aqua Works’ sole discretion a deposit may be required.

5.5. Time for payment for the Works being of the essence, the Price will be payable by the Customer on the date/s determined by Aqua Works, which may be:

(a) on completion of the Works; or

(b) by way of progress payments in accordance with Aqua Works’ specified progress payment schedule. Such progress payment claims may include the reasonable value of authorised variations and the value of any Materials delivered to the worksite but not yet installed;

(c) for certain approved Customer’s, due twenty (20) days following the end of the month in which a statement is posted to the Customer’s address or address for notices;

(d) the date specified on any invoice or other form as being the date for payment; or

(e) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Customer by Aqua Works.

5.6. At the agreement of both parties, payment of the Price may be subject to retention by the Customer of an amount (hereafter called the “Retention Money”), being a set amount or equal to a percentage of the Price. The Customer shall hold the Retention Money for the agreed period following completion of the Works during which time all Works are to be completed and/or all defects are to be remedied. Any Retention Money applicable to this Contract is to be dealt with in accordance with section 18 of the Construction Contracts Act 2002.

5.7. Payment may be made by cash, cheque, electronic/on-line banking, credit card (a surcharge may apply per transaction), or by any other method as agreed to between the Customer and Aqua Works.

5.8. Aqua Works may in its discretion allocate any payment received from the Customer towards any invoice that Aqua Works determines and may do so at the time of receipt or at any time afterwards. On any default by the Customer Aqua Works may re-allocate any payments previously received and allocated. In the absence of any payment allocation by Aqua Works, payment will be deemed to be allocated in such a manner as to preserve the maximum value of Aqua Works’ Purchase Money Security Interest (as defined in the PPSA) in the Materials.

5.9. The Customer shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Customer by Aqua Works nor to withhold payment of any invoice because part of that invoice is in dispute unless the request for payment by Aqua Works is a claim made under the Construction Contracts Act 2002.

5.10. Unless otherwise stated the Price does not include GST. In addition to the Price, the Customer must pay to Aqua Works an amount equal to any GST Aqua Works must pay for any supply by Aqua Works under this or any other agreement for the sale of the Materials. The Customer must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Customer pays the Price. In addition, the Customer must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.

6. Provision of the Works

6.1. Subject to clause 6.2 it is Aqua Works’ responsibility to ensure that the Works start as soon as it is reasonably possible.

6.2. The Works’ commencement date will be put back and the completion date extended by whatever time is reasonable in the event that Aqua Works claims an extension of time (by giving the Customer written notice) where completion is delayed by an event beyond Aqua Works’ control, including but not limited to any failure by the Customer to:

(a) make a selection; or

(b) have the site ready for the Works; or

(d) At Aqua Works’ sole discretion, the cost of Delivery is either included in the Price or is in addition to the Price.

6.3. Aqua Works may deliver the Works by separate instalments. Each separate installment shall be invoiced and paid in accordance with the provisions in these terms and conditions.

6.4. Any time specified by Aqua Works for delivery of the Works is an estimate only and Aqua Works will not be liable for any loss or damage incurred by the Customer as a result of delivery being late. However both parties agree that they shall make every endeavour to enable the Works to be supplied at the time and place as was arranged between both parties. In the event that Aqua Works is unable to supply the Works as agreed solely due to any action or inaction of the Customer, then Aqua Works 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.

7. Risk

7.1. If Aqua Works retains ownership of the Materials under clause 11 then:

(a) where Aqua Works is supplying Materials only, all risk for the Materials shall immediately pass to the Customer on delivery and the Customer must insure the Materials on or before delivery. Delivery of the Materials shall be deemed to have taken place immediately at the time that either;

(i) the Customer or the Customer’s nominated carrier takes possession of the Materials at Aqua Works’ address; or

(ii) the Materials are delivered by Aqua Works or Aqua Works’ nominated carrier to the Customer’s nominated delivery address (even if the Customer is not present at the address).

(b) where Aqua Works is to both supply and install Materials then Aqua Works shall maintain a contract works insurance policy until the Works are completed. Upon completion of the Works all risk for the Works shall immediately pass to the Customer.

7.2. Notwithstanding the provisions of clause 7.1 if the Customer specifically requests Aqua Works to leave Materials outside Aqua Works’ premises for collection or to deliver the Materials to an unattended location then such materials shall always be left at sole risk of the Customer and it shall be the Customer’s responsibility to ensure the Materials are insured adequately or at all. In the event that such Materials are lost, damaged or destroyed then replacement of the Materials shall be at the Customer’s expense.

7.3. The Client warrants that any structures to which the Materials are to be affixed are able to withstand the installation thereof and that any plumbing connections (including, but not limited to, pipes, couplings and valves) are of suitable capacity to handle the Materials once installed. If for any reason (including the discovery of asbestos, defective or unsafe plumbing or latent or unfavourable soil conditions such as liquefaction residue or risk) that Aqua Works, or Aqua Works’ employees, reasonably form the opinion that the Client’s premises is not safe for the Works to proceed then Aqua Works shall be entitled to delay the provision of the Works (in accordance with the provisions of clause 6.2 above) until Aqua Works is satisfied that it is safe for the installation to proceed.

7.4. Aqua Works shall be entitled to rely on the accuracy of any plans, specifications (including, but not limited to CAD drawings) and other information provided by the Client. The Client acknowledges and agrees that in the event that any of this information provided by the Client is inaccurate, Aqua Works accepts no responsibility for any loss, damages, or costs however resulting from these inaccurate plans, specifications or other information.

7.5. Aqua Works shall upon installation ensure that all Materials are to be installed in a manner that is fully compliant with industry standards. If, for any reason, the Client specifically requires the Materials to be installed in any way which goes against Aqua Works’ recommendations and/or falls below industry standards; a request detailing that requirement must be made in writing to Aqua Works. Accordingly, Aqua Works offers no warranty in regards to the aforementioned.

7.6. The installation of some Materials can cause water hammer or damage to existing pipe work. The Client agrees to indemnify Aqua Works against any such loss, damage or claim that may arise if the existing pipe work is unable to accommodate the installation of the Materials.

7.7. The Client acknowledges that Aqua Works is only responsible for parts that are replaced/supplied by Aqua Works and does not at any stage accept any liability in respect of components supplied by any other third party that subsequently fail and are found to be the source of the failure, the Client agrees to indemnify Aqua Works against any loss or damage to the Materials, or caused thereby, or any part thereof howsoever arising.

7.8. Aqua Works shall not be liable for any defect, deterioration and/or damage to the Materials:

(a) if the Client does not follow Aqua Works’ recommendations; and

(b) where Materials are stored off site for extended periods of time as a result of any action/inaction by the Client; and

8. Specifications

8.1. The Client acknowledges that all descriptive specifications, illustrations, dimensions and weights stated in Aqua Works’ or the manufacturer’s fact sheets, price lists or advertising material, are approximate only and are given by way of identification only. The Client shall not be entitled to rely on such information, and any use of such does not constitute a sale by description, and does not form part of the contract, unless expressly stated as such in writing by Aqua Works.

9. Access

9.1. The Client shall ensure that Aqua Works has clear and free access to the site at all times to enable them to undertake the Works. Aqua Works shall not be liable for any loss or damage to the site (including, without limitation, damage to pathways, driveways and concreted or paved or grassed areas) unless due to the negligence of Aqua Works. The Client accepts however, that some damage may result during the provision of the Works that is beyond Aqua Works’ control.

10. Underground Locations

10.1. Prior to Aqua Works commencing any work the Client must advise Aqua Works of the precise location of all underground services on the site and clearly mark the same. The underground mains & services the Client must identify include, but are not limited to, electrical services, gas services, sewer services, pumping services, sewer connections, sewer sludge mains, water mains, irrigation pipes, telephone cables, fibre optic cables, oil pumping mains, and any other services that may be on site.

10.2. Whilst Aqua Works will take all care to avoid damage to any underground services the Client agrees to indemnify Aqua Works in respect of all and any liability claims, loss, damage, costs and fines as a result of damage to services not precisely located and notified as per clause 10.1.

11. Title

11.1. Aqua Works and the Customer agree that ownership of the Materials shall not pass until:

(a) the Customer has paid Aqua Works all amounts owing to Aqua Works; and

(b) the Customer has met all of its other obligations to Aqua Works.

11.2. Receipt by Aqua Works 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.

11.3. It is further agreed that:

(a) until ownership of the Materials passes to the Customer in accordance with clause 11.1 that the Customer is only a bailee of the Materials and unless the Materials have become fixtures must return the Materials to Aqua Works on request;

(b) the Customer holds the benefit of the Customer’s insurance of the Materials on trust for Aqua Works and must pay to Aqua Works the proceeds of any insurance in the event of the Materials being lost, damaged or destroyed;

(c) the production of these terms and conditions by Aqua Works shall be sufficient evidence of Aqua Works’ rights to receive the insurance proceeds direct from the insurer without the need for any person dealing with Aqua Works to make further enquiries;

(d) the Customer must not sell, dispose, or otherwise part with possession of the Materials other than in the ordinary course of business and for market value. If the Customer sells, disposes or parts with possession of the Materials then the Customer must hold the proceeds of any such act on trust for Aqua Works and must pay or deliver the proceeds to Aqua Works on demand;

(e) the Customer should not convert or process the Materials or intermix them with other goods but if the Customer does so then the Customer holds the resulting product on trust for the benefit of Aqua Works and must sell, dispose of or return the resulting product to Aqua Works as it so directs;

(f) unless the Materials have become fixtures the Customer irrevocably authorises Aqua Works to enter any premises where Aqua Works believes the Materials are kept and recover possession of the Materials;

(g) Aqua Works may recover possession of any Materials in transit whether or not delivery has occurred;

(h) the Customer shall not charge or grant an encumbrance over the Materials nor grant nor otherwise give away any interest in the Materials while they remain the property of Aqua Works;

(i) Aqua Works may commence proceedings to recover the Price of the Materials sold notwithstanding that ownership of the Materials has not passed to the Customer.

12. Personal Property Securities Act 1999 (“PPSA”)

12.1. Upon assenting to these terms and conditions in writing the Customer acknowledges and agrees that:

(a) these terms and conditions constitute a security agreement for the purposes of the PPSA; and

(b) a security interest is taken in all Materials and/or collateral (account) – being a monetary obligation of the Customer to Aqua Works for Works – that have previously been supplied and that will be supplied in the future by Aqua Works to the Customer.

12.2. The Customer undertakes to:

(a) sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which Aqua Works may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register;

(b) indemnify, and upon demand reimburse, Aqua Works for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register or releasing any Materials charged thereby;

(c) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Materials and/or collateral (account) in favour of a third party without the prior written consent of Aqua Works; and

(d) immediately advise Aqua Works 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.

12.3. Aqua Works and the Customer agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms and conditions.

12.4. The Customer waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA.

12.5. Unless otherwise agreed to in writing by Aqua Works, the Customer waives its right to receive a verification statement in accordance with section 148 of the PPSA.

12.6. The Customer shall unconditionally ratify any actions taken by Aqua Works under clauses 12.1 to 12.5.

12.7. Subject to any express provisions to the contrary (including those contained in this clause 12), nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.

13. Security and Charge

13.1. In consideration of Aqua Works agreeing to supply the Works, the Customer charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Customer either now or in the future, to secure the performance by the Customer of its obligations under these terms and conditions (including, but not limited to, the payment of any money).

13.2. The Customer indemnifies Aqua Works from and against all Aqua Works’ costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising Aqua Works’ rights under this clause.

13.3. The Customer irrevocably appoints Aqua Works and each director of Aqua Works as the Customer’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 13 including, but not limited to, signing any document on the Customer’s behalf.

14 Defects In Materials

14.1. The Customer shall inspect the Materials on delivery and shall within thirty (30) days of delivery (time being of the essence) notify Aqua Works of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Customer shall afford Aqua Works an opportunity to inspect the Materials within a reasonable time following delivery if the Customer believes the Materials are defective in any way. If the Customer shall fail to comply with these provisions the Materials shall be presumed to be free from any defect or damage. For defective Materials, which Aqua Works has agreed in writing that the Customer is entitled to reject, Aqua Works’ liability is limited to either (at Aqua Works’ discretion) replacing the Materials or repairing the Materials.

14.2. Materials will not be accepted for return other than in accordance with 14.1 above.

15 Returns

15.1. Returns will only be accepted provided that:

(a) the Customer has complied with the provisions of clause 14.1; and

(b) Aqua Works has agreed in writing to accept the return of the Materials; and

(d) Aqua Works will not be liable for Materials which have not been stored or used in a proper manner; and

(e) the Materials are returned in the condition in which they were delivered and with all packaging material, brochures and instruction material in as new condition as is reasonably possible in the circumstances.

15.2. Aqua Works will not accept the return of non-defective Materials for credit.

15.3. Non-stocklist items or Materials made to the Customer’s specifications are under no circumstances acceptable for credit or return.

16 Warranties

16.1. Subject to the conditions of warranty set out in clause 16.2 Aqua Works warrants that if any defect in any workmanship of Aqua Works becomes apparent and is reported to Aqua Works within twelve (12) months of the date of delivery (time being of the essence) then Aqua Works will either (at Aqua Works’ sole discretion) replace or remedy the workmanship.

16.2. The conditions applicable to the warranty given by clause 16.1 are:

(a) the warranty shall not cover any defect or damage which may be caused or partly caused by or arise through:

(i) failure on the part of the Customer to properly maintain any Materials; or

(ii) failure on the part of the Customer to follow any instructions or guidelines provided by Aqua Works; or

(iii) failure on the part of the Customer to service the Materials every twelve (12) month; or

(iv) any use of any Materials otherwise than for any application specified on a quote or order form; or

(v) the continued use of any Materials after any defect becomes apparent or would have become apparent to a reasonably prudent operator or user; or

(vi) fair wear and tear, any accident or act of God.

(b) the warranty shall cease and Aqua Works shall thereafter in no circumstances be liable under the terms of the warranty if the workmanship is repaired, altered or overhauled without Aqua Works’ consent.

(c) in respect of all claims Aqua Works shall not be liable to compensate the Customer for any delay in either replacing or remedying the workmanship or in properly assessing the Customer’s claim.

16.3. For Materials not manufactured by Aqua Works, the warranty shall be the current warranty provided by the manufacturer of the Materials. Aqua Works 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.

16.4. The conditions applicable to the warranty given on Materials supplied by Aqua Works are contained on the “Warranty Card” that will be supplied with the Materials.

17 Consumer Guarantees Act 1993

17.1. If the Customer is acquiring Materials for the purposes of a trade or business, the Customer acknowledges that the provisions of the Consumer Guarantees Act 1993 do not apply to the supply of Materials by Aqua Works to the Customer.

18 Intellectual Property

18.1. Where Aqua Works has designed, drawn, written plans or a schedule of Works, or created any products for the Customer, then the copyright in all such designs, drawings, documents, plans, schedules and products shall remain vested in Aqua Works, and shall only be used by the Customer at Aqua Works’ discretion. Under no circumstances may such designs, drawings and documents be used without the express written approval of Aqua Works.

18.2. The Customer warrants that all designs, specifications or instructions given to Aqua Works will not cause Aqua Works to infringe any patent, registered design or trademark in the execution of the Customer’s order and the Customer agrees to indemnify Aqua Works against any action taken by a third party against Aqua Works in respect of any such infringement.

18.3. The Customer agrees that Aqua Works may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings, plans or products which Aqua Works has created for the Customer.

19 Default and Consequences of Default

19.1. Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at Aqua Works’ sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.

19.2. If the Customer owes Aqua Works any money the Customer shall indemnify Aqua Works from and against all costs and disbursements incurred by Aqua Works in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, Aqua Works’ collection agency costs, and bank dishonour fees).

19.3. Further to any other rights or remedies Aqua Works may have under this Contract, if a Customer has made payment to Aqua Works, and the transaction is subsequently reversed, the Customer shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by Aqua Works under this clause 19, where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Customer’s obligations under this Contract.

19.4. Without prejudice to Aqua Works’ other remedies at law Aqua Works shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to Aqua Works shall, whether or not due for payment, become immediately payable if:

(a) any money payable to Aqua Works becomes overdue, or in Aqua Works’ opinion the Customer will be unable to make a payment when it falls due;

(b) the Customer has exceeded any applicable credit limit provided by Aqua Works;

(c) the Customer becomes insolvent or bankrupt, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or

(d) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer.

20 Cancellation

20.1. Without prejudice to any other rights or remedies Aqua Works may have, if at any time the Customer is in breach of any obligation (including those relating to payment and/or failure to remedy any breach in respect of this Contract within ten (10) working days of receipt by the Customer of such notice/s) then Aqua Works may suspend the Works immediately. Aqua Works will not be liable to the Customer for any loss or damage the Customer suffers because Aqua Works has exercised its rights under this clause.

20.2. Aqua Works may cancel any contract to which these terms and conditions apply or cancel delivery of Works at any time before the Works are commenced by giving written notice to the Customer. On giving such notice Aqua Works shall repay to the Customer any sums paid in respect of the Price, less any amounts owing by the Customer to Aqua Works for Works already performed. Aqua Works shall not be liable for any loss or damage whatsoever arising from such cancellation.

20.3. In the event that the Customer cancels the delivery of Works the Customer shall be liable for any and all loss incurred (whether direct or indirect) by Aqua Works as a direct result of the cancellation (including, but not limited to, any loss of profits).

20.4. Cancellation of orders for products made to the Customer’s specifications, or for non-stocklist items, will definitely not be accepted once production has commenced, or an order has been placed.

21 Privacy Policy

21.1. All emails, documents, images or other recorded information held or used by Aqua Works is Personal Information as defined and referred to in clause 21.3 and therefore considered confidential. Aqua Works acknowledges its obligation in relation to the handling, use, disclosure and processing of Personal Information pursuant to the Privacy Act 1993 (“the Act”) including Part II of the OECD Guidelines and as set out in Schedule 5A of the Act and any statutory requirements where relevant in a European Economic Area “EEA” then the EU Data Privacy Laws (including the General Data Protection Regulation “GDPR”) (collectively, “EU Data Privacy Laws”). Aqua Works acknowledges that in the event it becomes aware of any data breaches and/or disclosure of the Customers Personal Information, held by Aqua Works that may result in serious harm to the Customer, Aqua Works will notify the Customer in accordance with the Act and/or the GDPR. Any release of such Personal Information must be in accordance with the Act and the GDPR (where relevant) and must be approved by the Customer by written consent, unless subject to an operation of law.

21.2. Notwithstanding clause 21.1, privacy limitations will extend to Aqua Works in respect of Cookies where transactions for purchases/orders transpire directly from Aqua Works’ website. Aqua Works agrees to display reference to such Cookies and/or similar tracking technologies, such as pixels and web beacons (if applicable), such technology allows the collection of Personal Information such as the Customer’s:

(a) IP address, browser, email client type and other similar details;

(b) tracking website usage and traffic; and

(c) reports are available to Aqua Works when Aqua Works sends an email to the Customer, so Aqua Works may collect and review that information (“collectively Personal Information”)

In order to enable / disable the collection of Personal Information by way of Cookies, the Customer shall have the right to enable / disable the Cookies first by selecting the option to enable / disable, provided on the website prior to proceeding with a purchase/order via Aqua Works’ website.

21.3. The Customer authorises Aqua Works or Aqua Works’ agent to:

(a) access, collect, retain and use any information about the Customer;

(i) (including, name, address, D.O.B, occupation, driver’s license details, electronic contact (email, Facebook or Twitter details), medical insurance details or next of kin and other contact information (where applicable), previous credit applications, credit history or any overdue fines balance information held by the Ministry of Justice) for the purpose of assessing the Customer’s creditworthiness; or

(ii) for the purpose of marketing products and services to the Customer.

(b) disclose information about the Customer, whether collected by Aqua Works from the Customer directly or obtained by Aqua Works from any other source, to any other credit provider or any credit reporting agency for the purposes of providing or obtaining a credit reference, debt collection or notifying a default by the Customer.

21.4. Where the Customer is an individual the authorities under clause 21.3 are authorities or consents for the purposes of the Privacy Act 1993.

21.5. The Customer shall have the right to request Aqua Works for a copy of the Personal Information about the Customer retained by Aqua Works and the right to request Aqua Works to correct any incorrect Personal Information about the Customer held by Aqua Works.

22 Suspension of Works

22.1. Where the Contract is subject to the Construction Contracts Act 2002, the Customer hereby expressly acknowledges that:

(a) Aqua Works has the right to suspend work within five (5) working days of written notice of its intent to do so if a payment claim is served on the Customer, and:

(i) the payment is not paid in full by the due date for payment in accordance with clause 5.5 and/or any subsequent amendments or new legislation and no payment schedule has been given by the Customer; or

(ii) a scheduled amount stated in a payment schedule issued by the Customer in relation to the payment claim is not paid in full by the due date for its payment; or

(iii) the Customer has not complied with an adjudicator’s notice that the Customer must pay an amount to Aqua Works by a particular date; and

(iv) Aqua Works has given written notice to the Customer of its intention to suspend the carrying out of construction work under the construction Contract.

(b) if Aqua Works suspends work, it:

(i) is not in breach of Contract; and

(ii) is not liable for any loss or damage whatsoever suffered, or alleged to be suffered, by the Customer or by any person claiming through the Customer; and

(iii) is entitled to an extension of time to complete the Contract; and

(iv) keeps its rights under the Contract including the right to terminate the Contract; and may at any time lift the suspension, even if the amount has not been paid or an adjudicator’s determination has not been complied with.

(i) affect any rights that would otherwise have been available to Aqua Works under the Contract and Commercial Law Act 2017; or

(ii) enable the Customer to exercise any rights that may otherwise have been available to the Customer under that Act as a direct consequence of Aqua Works suspending work under this provision;

(d) due to any act or omission by the Customer, the Customer effectively precludes Aqua Works from continuing the Works or performing or complying with Aqua Works’ obligations under this Contract, then without prejudice to Aqua Works’ other rights and remedies, Aqua Works may suspend the Works immediately after serving on the Customer a written notice specifying the payment default or the act, omission or default upon which the suspension of the Works is based. All costs and expenses incurred by Aqua Works as a result of such suspension and recommencement shall be payable by the Customer as if they were a variation.

22.2. If pursuant to any right conferred by this Contract, Aqua Works suspends the Works and the default that led to that suspension continues un-remedied subject to clause 20.1 for at least ten (10) working days, Aqua Works shall be entitled to terminate the Contract, in accordance with clause 20.

23 Service of Notices

23.1. Any written notice given under this Contract shall be deemed to have been given and received:

(a) by handing the notice to the other party, in person;

(b) by leaving it at the address of the other party as stated in this Contract;

(d) if sent by facsimile transmission to the fax number of the other party as stated in this Contract (if any), on receipt of confirmation of the transmission;

(e) if sent by email to the other party’s last known email address.

23.2. Any notice that is posted shall be deemed to have been served, unless the contrary is shown, at the time when by the ordinary course of post, the notice would have been delivered.

24 Trusts

24.1. If the Customer at any time upon or subsequent to entering in to the Contract is acting in the capacity of trustee of any trust (“Trust”) then whether or not Aqua Works may have notice of the Trust, the Customer covenants with Aqua Works as follows:

(a) the Contract extends to all rights of indemnity which the Customer now or subsequently may have against the Trust and the trust fund;

(b) the Customer has full and complete power and authority under the Trust to enter into the Contract and the provisions of the Trust do not purport to exclude or take away the right of indemnity of the Customer against the Trust or the trust fund. The Customer will not release the right of indemnity or commit any breach of trust or be a party to any other action which might prejudice that right of indemnity;

(c) the Customer will not without consent in writing of Aqua Works (Aqua Works will not unreasonably withhold consent), cause, permit, or suffer to happen any of the following events:

(i) the removal, replacement or retirement of the Customer as trustee of the Trust;

(ii) any alteration to or variation of the terms of the Trust;

(iii) any advancement or distribution of capital of the Trust; or

(iv) any resettlement of the trust property.

25 General

25.1. Any dispute or difference arising as to the interpretation of these terms and conditions or as to any matter arising hereunder, shall be submitted to, and settled by, either adjudication in accordance with the Construction Contracts Act 2002 and/or by arbitration in accordance with the Arbitration Act 1996 or its replacement(s).

25.2. The failure by either party to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect that party’s right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.

25.3. These terms and conditions and any contract to which they apply shall be governed by the laws of New Zealand and are subject to the jurisdiction of the Auckland Courts of New Zealand.

25.4. Aqua Works shall be under no liability whatsoever to the Customer for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by Aqua Works of these terms and conditions (alternatively Aqua Works’ liability shall be limited to damages which under no circumstances shall exceed the Price of the Works).

25.5. Aqua Works may licence and/or assign all or any part of its rights and/or obligations under this Contract without the Customer’s consent.

25.6. The Customer cannot licence or assign without the written approval of Aqua Works.

25.7. Aqua Works may elect to subcontract out any part of the Works but shall not be relieved from any liability or obligation under this Contract by doing so. Furthermore, the Customer agrees and understands that they have no authority to give any instruction to any of Aqua Works’ subcontractors without the authority of Aqua Works.

25.8. The Customer agrees that Aqua Works may amend their general terms and conditions for subsequent future contracts with the Customer by disclosing such to the Customer in writing. These changes shall be deemed to take effect from the date on which the Customer accepts such changes, or otherwise at such time as the Customer makes a further request for Aqua Works to provide Works to the Customer.

25.9. Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.

25.10. Both parties warrant that they have the power to enter into this Contract and have obtained all necessary authorisations to allow them to do so, they are not insolvent and that this Contract creates binding and valid legal obligations on them.