WH Electrical Services Limited – Terms and Conditions TERMS AND CONDITIONSAPPLICATION OF THESE TERMS1 These terms and conditions of trade (“Terms”) will, unless otherwise agreed in writing,apply to all Works provided by the Contractor to the Customer.2 The Customer is taken to have accepted and be bound by these Terms if the Customeraccepts a quote, places an order for and/or accepts delivery of any Works.DEFINITIONS3 In these Terms, unless the context otherwise requires:“Completion Date” means the date the Works are to be completed.“Contractor” means the person or entity providing the Works (WH Electrical Services Ltd),and includes its employees, agents, or any person or entity that acquires the assetsand business of the Contractor or any person acting on behalf of and with theauthority of the Contractor.“Customer” means the person/s, or authorised agent on behalf of a firm, organisation,partnership, company and other entity (including trust) requesting the Contractorto provide the Works, and where the context requires, includes the customer’scontractors.“Event of Default” means an event of default by the Customer, which occurs if:• the Customer defaults in payment of an amount payable under these Terms;• the Customer fails to meet any of its other obligations under these Terms withthe Contractor;• where the Customer is a natural person, the Customer dies, ceases to be offull legal capacity or commits an act of bankruptcy, or if the Customer is acompany or body corporate, the Customer becomes insolvent or is subject toliquidation, receivership, administration or a similar insolvency process;• any representation or undertaking made by the Customer to the Contractoris untrue, misleading or deceptive; or• an event, or a series of events (whether related or not), occurs which, in theContractor’s opinion, may cause a material adverse change in the ability ofthe Customer to meet its obligations under these Terms with the Contractor.“Materials” means any goods provided by the Contractor to the Customer.“Price” means the price payable (plus any Goods and Services Tax (“GST”) whereapplicable) for the Works.“Site” means the location where the Works are to be carried out by the Contractor, asadvised by the Customer.“Start Date” means the start date of the performance of the Works.“Terms” means these terms and conditions, together with any invoice, order, quote, orother document or amendments expressed to form part of the terms betweenthe Contractor and the Customer.“Variation” means a variation to the Works under clauses 18 to 21 and any other matterwhich is stated to be a variation or to be treated as a variation by these Terms.“Works” means all goods and services provided by the Contractor in accordance with anyquotation or any request from the Customer from time to time.PROVISION OF WORKS4 Subject to clause 5, the Contractor will start the Works on the Start Date.5 The Start Date will be delayed and the Completion Date extended by whatever time isreasonable if the Contractor claims an extension of time (by giving the Customerwritten notice) where completion is delayed by an event beyond the Contractor’scontrol.6 The Contractor may deliver the Works by separate instalments. Each separateinstalment will be invoiced and paid in accordance with these Terms.7 Any time or date given by the Contractor to the Customer is an estimate only. TheContractor will not be liable for any loss or damage whatsoever due to failure by theContractor to deliver the Works (or any part of them) promptly or at all, where thefailure is due to circumstances beyond the reasonable control of the Contractor.8 Any advice, assistance, information, or recommendation provided by the Contractor isprovided in good faith, based on the Contractor’s knowledge and experience, and theCustomer will be responsible for confirming the accuracy and reliability of the same inthe use to which the Customer makes or intends to make of the Works.PRICE & PAYMENT9 At the Contractor’s sole discretion, the Price will be, either:9.1 in accordance with any quote provided by the Contractor; or9.2 as indicated on any invoice provided by the Contractor to the Customer.10 Subject to clauses 11 and 12, the Price specified in any quote from the Contractor tothe Customer will be valid for the period/s stated in that quote.11 Unless otherwise stated in writing, the Customer will be charged for the Contractor’stravel costs in the manner that the Contractor chooses.12 The Contractor reserves the right to change the Price:12.1 if a variation to the Materials which are to be supplied is requested; or12.2 if a variation to the Works originally scheduled (including any applicable plansor specifications) is requested; or12.3 where additional Works are required due to the discovery of hidden orunidentifiable difficulties which are only discovered on commencement ofthe Works; or12.4 in the event of increases to the Contractor in the cost of labour or materialswhich are beyond the Contractor’s control.13 Time for payment for the Works being of the essence, the Price will be payable by theCustomer on the date/s determined by the Contractor, which may be:13.1 on completion of the Works; or13.2 by way of progress payments in accordance with the Contractor’s specifiedprogress payment schedule. Such progress payment claims may include thereasonable value of authorised variations and the value of any Materialsdelivered to the Site but not yet installed;13.3 the date specified on any invoice or other form as being the date forpayment; or13.4 failing any notice to the contrary, the date which is seven (7) days followingthe date of any invoice given to the Customer by the Contractor.14 Payment will be made by electronic/online banking, or any other method agreedbetween the Customer and the Contractor.15 The Contractor may require the payment of a deposit upon request.16 In addition to the Price, the Customer must pay to the Contractor an amount equal toany GST the Contractor must pay for any provision of the Works. The Customer must payany other taxes and duties that may be applicable in addition to the Price, exceptwhere they are expressly included in the Price.17 The Customer will not be entitled to set off against, or deduct from the Price, any sumsowed or claimed to be owed to the Customer by the Contractor or to withholdpayment of any invoice because the invoice is in dispute unless the request forpayment by the Contractor is a payment claim under the Construction Contacts Act2002, in which case the Customer must comply with the provisions under that Actrelating to payment schedules.RETENTIONS18 Where there is a commercial construction contract as defined in the ConstructionContracts Act 2002, payment of the Price may be subject to retention by the Customerof an amount ("Retention Money"), being a set amount or equal to a percentage ofthe Price. All Retention Money must be held on a plus GST basis.19 The Customer will hold the Retention Money on trust in an account for the agreedperiod following completion of the Works during which time all Works are to becompleted and/or all defects are to be remedied.20 Retention Money under these Terms is to be dealt with in accordance with section 18 ofthe Construction Contracts Act 2002.VARIATIONS21 The Customer (and where applicable in these Terms, the Contractor) may, by writtennotice, order any variations to the Works that:21.1 Increase or decrease the quantity of any Work;21.2 Omit any Work;21.3 Change the character or quality of any Material or Work;21.4 Require additional Work to be done; or21.5 Change the level, line, position, or dimensions of any part of the Works, andsuch order will be a variation.22 The Contractor will carry out and comply with any Variation ordered under clause 21.23 The value of any Variation, as calculated under clause 24, will be added to ordeducted from the Price.24 Any Variation to the Works will be valued as follows:24.1 Where the Terms include specific rates and/or percentages applicable to anyVariation, the Variation will be valued in accordance with such rates and/orpercentages.24.2 Where the Terms do not include any specific rates and/or percentagesapplicable to any Variation, the Contractor will notify the Customer of theproposed value of any Variation and as soon as practicable following receiptof the Contractor’s notice (but in any case no more than 7 days, time beingof the essence), the Customer will confirm in writing whether or not theproposed value of the Variation is accepted. Where the Customer givesnotice that it does not accept such proposed value, the parties willendeavour to resolve the dispute by agreement, failing which the DisputeResolution provisions of these Terms will apply.CUSTOMER RESPONSIBILITIES25 The Customer will:25.1 provide the Contractor with clear and unobstructed access to the Site. If theContractor moves anything on or about the Site to safely perform the Works(as determined by the Contractor from time to time), this will be done at thesole risk of the Customer. Any damage to the Customer’s property and/or theSite will not be the responsibility of the Contractor unless it is due to thenegligence of the Contractor.25.2 arrange for scaffolding to be installed at the Site by a professional scaffoldinstaller and to the satisfaction of the Contractor in all things, should theContractor determine it is necessary to complete the Works.25.3 on request, advise and mark the precise the location of all undergroundservices on the Site. While the Contractor will take all due care, any damagecaused by the Customer not correctly and precisely locating undergroundservices will be the responsibility of the Customer and the Customerindemnifies the Contractor from all liability, claims, loss, damage, or fines.25.4 be responsible for any materials the Customer supplies. Any additional costsand/or delays incurred because the materials provided are not fit for purposewill be the Customer’s sole responsibility in all things.25.5 be responsible for the acts of any persons at or about the Site not under theContractor’s control, including but not limited to other contractors engagedby the Customer. Any delay in the Contractor’s performance of the Worksarising from the act of a person for whom the Customer is responsible will betreated as a Variation and clauses 21 to 24 of these Terms will apply.25.6 Be responsible for the clean-up of the Site, including removal of all rubbish.PLANS AND SPECIFICATIONS26 All customary building industry tolerances will apply to the dimensions andmeasurements of the Materials unless otherwise agreed by the Contractor and theCustomer in writing.27 The Contractor will be entitled to rely on the accuracy of any plans, specifications andother information provided by the Customer.28 If any reference to the position of any electrical installations is removed or covered upby the Customer, then the Contractor will not be responsible for any damage caused inrelation to the locating of the installations and the installations will be at the solediscretion of the Contractor.29 Any additional costs caused by the Customer not providing an acceptable plan orscope of work, will be the responsibility of the Customer.30 If the Customer requests the Contractor to decide on the positioning of any electricalinstallations, the Customer will be deemed to have accepted the positioning of thesame.TITLE31 Ownership of the Materials will not pass to the Customer until the Customer has paid allamounts owing to the Contractor and met all the Customer’s other obligations to theContractor.32 Receipt by the Contractor of any form of payment other than cash will be deemed tobe received by the Contractor once they have cleared funds in their Bank accountthat cannot be reversed.33 Risk for the materials will move to the Customer as soon as they accept delivery.34 It is further agreed that:34.1 until ownership of the Materials passes to the Customer in accordance withclause 31, the Customer is only in possession and not ownership of theMaterials and unless the Materials have become fixtures must return theMaterials to the Contractor on request.34.2 the Customer holds the benefit of the Customer’s insurance of the Materialson trust for the Contractor and must pay to the Contractor the proceeds ofany insurance in the event of the Materials being lost, damaged or destroyed.34.3 the production of these Terms by the Contractor will be sufficient evidence ofthe Contractor’s rights to receive the insurance proceeds direct from theinsurer without the need for any person dealing with the Contractor to makefurther enquiries.34.4 the Customer must not sell, dispose, or otherwise part with possession of theMaterials other than in the ordinary course of business and for market value. Ifthe Customer sells, disposes or parts with possession of the Materials then theCustomer must hold the proceeds of any such act on trust for the Contractorand must pay or deliver the proceeds to the Contractor on demand.34.5 the Customer should not convert or process the Materials or intermix themwith other goods but if the Customer does so then the Customer holds theresulting product on trust for the benefit of the Contractor and must sell,dispose of or return the resulting product to the Contractor as it so directs.34.6 unless the Materials have become fixtures the Customer irrevocablyauthorises the Contractor to enter any premises where the Customer believesthe Materials are kept and recover possession of the Materials.34.7 the Contractor may recover possession of any Materials in transit whether ornot delivery has occurred.34.8 the Customer will not charge or grant an encumbrance over the Materials norgrant or otherwise dispose of any interest in the Materials while they remainthe property of the Contractor.34.9 the Contractor may commence proceedings to recover the price of theMaterials sold notwithstanding that ownership of the Materials has not passedto the Customer.PERSONAL PROPERTY SECURITIES ACT 1999 (“PPSA”)35 The Customer agrees that these Terms constitute a security agreement for the purposesof the Personal Property Securities Act 1999 (“PPSA”). The Contractor may register suchinterest with the Personal Property Securities Register. A security interest is taken in allMaterials and/or collateral.36 The Customer undertakes to provide any information or sign any additional documentto allow the Contractor to register its interest on the Personal Property Security Register.37 The Customer will reimburse the Contractor for any costs associated in the registrationof the financing statement.38 To the extent permitted by law:38.1 Nothing in sections 114(1)(a), 133 and 134 of the PPSA will apply to theseterms and conditions;38.2 The Customer waives its rights as a debtor under sections 116, 120(2), 121, 125,126, 127, 129, 131 and 132 of the PPSA; and38.3 The Customer waives its right to receive a verification statement inaccordance with section 148 of the PPSA.39 The Customer will unconditionally ratify any actions taken by the Contractor underclauses 35 to 38.2.HAZARDOUS SUBSTANCES40 The Customer acknowledges that should any hazardous, toxic, or otherwise dangeroussubstance be discovered at the Site, it will be the Customer’s responsibility to have thesubstance tested and if necessary, removed. Until the Customer has provided evidenceto the Contractor that the substance is not dangerous or has been removed by asuitably qualified person, the Contractor may take any steps that they see necessary,including refusing to complete any further Works.SECURITY AND CHARGE41 In consideration for the Contractor agreeing to provide the Works, the Customercharges all its rights, title, and interest (whether joint or several) in any land, real estate,or other assets capable of being charged, owned by the Customer either now or in thefuture, to secure the performance by the Customer of its obligations under these Terms(including, but not limited to, the payment of any money).42 The Customer indemnifies the Contractor from and against all the Contractor’s costsand disbursements including legal costs on a solicitor client basis incurred in exercisingthe Contractor’s rights under clause 41.43 The Customer irrevocably appoints the Contractor and each director of the Contractoras the Customer’s attorney to perform all necessary acts to give effect to the provisionsof clause 41 including, but not limited to, signing any document on the Customer’sbehalf.INADVERTENT MISREPRESENTATION44 Notwithstanding any rights the Customer may have under the Contract andCommercial Law Act 2017, the Customer agrees that if the Contractor has made aninadvertent misrepresentation to the Customer, the parties will first seek to resolve anyadverse consequence that misrepresentation may have caused by good faithnegotiations and otherwise in accordance with the dispute resolution process in clause47.WARRANTIES45 To the extent permitted by law:45.1 The Contractor provides no warranty as to the quality or suitability of the Workfor any purpose.45.2 Any implied warranty is expressly excluded.45.3 The Contractor will not be liable or responsible for any loss suffered or causedby the Works in any way whatsoever.CONSUMER GUARANTEES ACT46 If the Customer is acquiring the Works for the purposes of trade or business, to themaximum extent permitted by law, the Customer agrees that the provisions of theConsumer Guarantees Act 1993 do not apply to the supply of the Works to theCustomer.DISPUTE RESOLUTION47 If a dispute arises in connection with these Terms (“Dispute”), the parties must enternegotiations in good faith to try to resolve the Dispute. A party may initiate thenegotiations by giving written notice to the other party in Dispute and naming itsrepresentative in that notice. The other party in Dispute must promptly name itsrepresentative in the negotiations. Each representative must have authority to settle theDispute. Within 10 days of the parties in Dispute having advised each other of theirrepresentatives, the representatives must enter negotiations to try to resolve theDispute.48 If the Dispute cannot be resolved by the parties within 10 days after it has been notifiedpursuant to clause 47, then at the request of either party, the parties will in good faithseek mediation under clause 49.49 If a Dispute is referred to mediation, then the parties will:49.1 seek to agree on a mediator, and if they cannot agree, the mediator will beappointed by the Chair of the New Zealand Committee of the ResolutionInstitute;49.2 seek to agree on the process for mediation, and if they cannot agree, thenthe mediator will decide the process; and49.3 each pay an equal share of the mediator’s fees.50 A party may not commence any court or arbitration proceedings relating to a Disputeunless it has complied with clauses 47 to 49 except where the party seeks urgentinterlocutory relief.51 Where the Construction Contracts Act 2002 applies to the Works, the parties can pursueresolution of the Dispute under that legislation in addition to or in substitution for thatparty’s rights under clauses 47 to 50.52 Pending resolution of any Dispute, the parties will continue to perform their respectiveobligations under these Terms that are not in dispute without prejudice to theirrespective rights and remedies under these Terms or at law.DEFAULT AND CONSEQUENCES OF DEFAULT53 Notwithstanding any other rights and remedies available to the Contractor, if theCustomer is in breach of its obligations under the Terms, the Contractor will:53.1 Notify the Customer of the breach in writing; and53.2 Given the Customer the opportunity to remedy the breach within areasonable period.54 If the Customer does not remedy the breach notified under clause 53 within the periodspecified in the notice, the Contractor may terminate or suspend the Works to theCustomer by giving reasonable notice.55 The Contractor may charge interest on overdue invoices daily from the date whenpayment becomes due, until the date of payment, at a rate of 2.5% per calendarmonth compounding monthly.56 The Contractor may charge the Customer for, and the Customer indemnifies theContractor from, all costs and expenses incurred by the Customer in recovering unpaidamounts due under these Terms or otherwise taking action to enforce these Terms. Thisincludes but is not limited to legal costs on a full solicitor client basis.57 Without prejudice to any other remedies, if an Event of Default occurs the Contractormay take any one or more of the following actions (after giving any notice required bylaw):57.1 suspend or terminate the supply of Works to the Customer;57.2 cancel any order of the Customer which remains unfulfilled;57.3 require that any unpaid amounts owing to the Contractor by the Customer,whether or not due for payment, become immediately payable; and57.4 exercise any rights the Contractor has under these Terms, including under anysecurities created by or pursuant to these Terms, or available to it at law.58 The Contractor will not be liable to the Customer for any loss or damage the Customermay suffer as a result of the Contractor exercising any of its rights under clause 57.COMPLIANCE WITH LAWS59 The Customer and the Contractor will comply with the provisions of all statutes,regulations and bylaws that may apply to the Works, including but not limited to theHealth and Safety at Work Act 2015 relating to building/construction sites and relatedElectrical (Safety) Regulations 2010.60 Unless otherwise agreed the Customer will obtain any consents that may be requiredfor the Works.61 The Customer is responsible to ensure that the Site will comply with any occupationalhealth and safety laws to the satisfaction of the Contractor. Until the Contractor issatisfied that the Site meets all health and safety requirements, the Works will notcommence.62 The Contractor will not assume any obligations of the Customer which may apply to theCustomer under the Health and Safety at Work Act 2015 or any related Regulationsarising from the Works. Unless otherwise agreed, the parties agree that the Contractorwill not be the person who controls the Site under the Health and Safety at Work Act2015.INSURANCE63 The Contractor will hold public liability insurance of at least $5 million. It is theCustomer’s responsibility to ensure that they are hold appropriate contract works andexisting structure(s) and contents insurance for the Site and Works.CANCELLATION AND EFFECTS OF CANCELLATION64 Unless otherwise agreed in writing and subject to clauses 65 and 66, either party maycancel these Terms and/or any contract or agreement that is subject to these Terms bygiving reasonable written notice of cancellation (“Cancellation Notice”). On expiry ofthe period specified in the Cancellation Notice (“Cancellation Date”), the applicabledocument(s) will be cancelled but without prejudice to the rights of either party againstthe other.65 In the event of a cancellation under clause 64:65.1 all amounts owing by the Customer to the Contractor as at the CancellationDate (including but not limited to any Materials purchased but not yetdelivered to the Site) will become due for payment by the Cancellation Date;and65.2 neither party will be liable for any damage or loss to the other arising from thecancellation.66 Provisions in any document cancelled by a party under clause 64 will survivetermination if they concern the following matters:66.1 Payments;66.2 Privacy and confidentiality;66.3 Title to Materials; and66.4 Securities.PRIVACY ACT 202067 The Customer authorises the Contractor to access, collect, retain and use anyinformation about the Customer for the purposes of:67.1 assessing the Customer’s creditworthiness; and67.2 marketing products and services to the Customer.68 The Customer authorises the Contractor to disclose information about the Customer,whether collected by the Contractor from the Customer directly or obtained by theContractor from any other source to any credit provider or credit reporting agency forthe purposes of providing or obtaining a credit reference, debt collection or notifying adefault by the Customer.69 The authorities under clauses 67 and 68 are provided for the purposes of the Privacy Act2020.70 The Customer has the right to:70.1 request a copy of the information about the Customer held by theContractor; and70.2 request correction of any incorrect information about the Customer held bythe Contractor.CONSTRUCTION CONTRACTS ACT 200271 Where the Contractor and Customer have a contract subject to the ConstructionContracts Act 2002, the Contractor may suspend the Works under these Terms (or anyother contract that it has entered into, or in the future enters into, with the Customer) byfive (5) working days’ written notice if a payment claim is served on the Customer and:71.1 the amount stated in the payment claim is not paid in full by the due date forpayment and no payment schedule has been provided by the Customer; or71.2 a scheduled amount stated in a payment schedule provided by theCustomer is not paid in full by the due date for payment; or71.3 the Customer has not complied with an adjudicator’s notice that theCustomer must pay an amount to the Contractor by a particular date; and71.4 the Contractor has given written notice to the Customer of its intention tosuspend the Works.72 If the Works are suspended under clause 71 then, in relation to the Terms to supply theWorks, the Contractor:72.1 is not in breach of these Terms between the parties;72.2 is not liable for any loss or damage whatsoever suffered, or alleged to besuffered, by the Customer or by any person claiming through the Customer;72.3 is entitled to an extension of time to complete the Works, in relation to whichclause 24 of these Terms will apply;72.4 reserves its rights under these Terms and the Contract and Commercial LawAct 2017; and72.5 may at any time lift the suspension, even if the amount due has not beenpaid in full or an adjudicator’s determination has not been complied with.GENERAL TERMS73 If any provision or part of a provision of these Terms is unenforceable or invalid, thatprovision or part is treated as removed from these Terms and does not affect theremaining provisions.74 If the Contractor fails to enforce any term or provision contained in these Termsbetween the Contractor and the Customer, it will not be treated as a waiver of thatterm or provision. Such waiver will not affect the Contractor’s right to enforce such termor provision.75 These Terms are governed by and interpreted in accordance with the laws of NewZealand and are subject to the jurisdiction of the Courts of New Zealand.76 To the extent permitted by law, the Contractor’s liability to the Customer for any lossand/or expense arising by the Contractor’s breach of these Terms will be limited toactual loss suffered by the Customer as a direct result of the Contractor’s wilful default.The Contractor’s liability will be limited to a sum equivalent in aggregate to the Price.77 The Contractor may sub-contract or assign all or any part of its rights and obligationsunder these Terms without the Customer’s consent.78 The Customer will give the Contractor not less than 14 days prior written notice of anyproposed change of ownership of the Customer.79 Time being of the essence, each party will promptly provide the other with up-to-datecontact information including but not limited to changes in legal name, address, email,phone number(s), or business practice.80 These Terms may be amended by the Contractor from time to time. If any changes aremade to these Terms, the Contractor will notify the Customer of such changes in writing.No amendment, alteration or addition will be effective unless it is in writing and signedby both parties. However, by instructing the Contractor to undertake further Works afterreceiving notice of any variation, the Customer will be deemed to have accepted thenotified variations.81 If all or part of the Contractor’s business operations are suspended due to an eventbeyond the Contractor’s control (including but not limited to epidemic, pandemic,war, natural disaster, electricity failure, strike, terrorism, lock-out, industrial action, fire,flood, storm or governmental action) (“Interrupting Event”), the Contractor maysuspend all or part of the Works and clauses 21 to 24 of these Terms may apply at theContractor’s sole discretion. Neither party will be liable for any default under theseTerms due to any Interrupting Event or other event beyond the reasonable control ofeither party.82 Both parties warrant that they have the power to enter into these Terms and haveobtained all necessary authorisations to allow it to do so, are not insolvent and thatthese Terms create binding and valid legal obligations on them.