TERMS & CONDITIONS
DairyTech South Limited – Terms & Conditions of Trade
1. Definitions
1.1 “Client” means the person/s, entities or any person acting on behalf of and with the authority of the Client requesting DairyTech South Limited to provide the Works as specified in any proposal, quotation, order, invoice or other documentation, and:
(a) if there is more than one Client, is a reference to each Client jointly and severally; and
(b) if the Client is a partnership, it shall bind each partner jointly and severally; and
(c) if the Client is a part of a Trust, shall be bound in their capacity as a trustee; and
(d) includes the Client’s executors, administrators, successors and permitted assigns.
1.2 “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.
1.3 “Cookies” means small files which are stored on a user’s computer. They are designed to hold a modest amount of data (including Personal Information) specific to a particular client and website and can be accessed either by the web server or the client’s computer. If the Client does not wish to allow Cookies to operate in the background when using DairyTech South Limited’s website, then the Client shall have the right to enable / disable the Cookies first by selecting the option to enable / disable provided on the website, prior to making enquiries via the website.
1.4 “DairyTech South Limited” means DairyTech South Limited, its successors and assigns.
1.5 “Intended Use” means a product and the use thereof, for which the product is intended to be, or is reasonably likely to be, associated with the Works.
1.6 “Non-Conforming Building Product” means building products that are regarded as Non-Conforming for an Intended Use if, when associated with a building:
(a) the product is not, or will not be, safe; or
(b) does not, or will not, comply with the relevant regulatory provisions; or
(c) the product does not perform, or is not capable of performing, for the use to the standard it is represented to conform by or for a person in the chain of responsibility for the product.
1.7 “Price” means the Price payable (plus any Goods and Services Tax (“GST”) where applicable) for the Works as agreed between DairyTech South Limited and the Client in accordance with clause 6 below.
1.8 “Works” means all Works (including consultation, manufacturing and/or installation services) or Materials (including, but not limited to any parts or consumables etc) supplied by DairyTech South Limited to the Client at the Client’s request from time to time (where the context so permits the terms ‘Works’ or ‘Materials’ shall be interchangeable for the other).
1.9 “Worksite” means the address nominated by the Client to which the Works and /or Materials are to be supplied by DairyTech South Limited.
2. Acceptance
2.1 The parties acknowledge and agree that:
(a) they have read and understood the terms and conditions contained in this Contract; and
(b) the parties are taken to have exclusively accepted and are immediately bound, jointly and severally, by these terms and conditions if the Client 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 The Client acknowledges and accepts that the supply of:
(a) Works on credit shall not take effect until the Client has completed a credit application with DairyTech South Limited and it has been approved with a credit limit established for the account. In the event that the supply of Works requested exceeds the Client’s credit limit and/or the account exceeds the payment terms, DairyTech South Limited reserves the right to refuse delivery; and
(b) Materials for accepted orders may be subject to availability and if, for any reason, Materials are not or cease to be available, DairyTech South Limited reserves the right to substitute comparable Materials (or components of the Materials) and vary the Price as per clause 6.2. In all such cases DairyTech South Limited will notify the Client in advance of any such substitution, and also reserves the right to place the Client’s order and/or Works on hold, as per clause 7.2 until such time as DairyTech South Limited and the Client agree to such changes.
2.5 Any advice, recommendation, information, assistance or service provided by DairyTech South Limited in relation to Materials or Works supplied is given in good faith to the Client, or the Client’s agent and is based on DairyTech South Limited’s own knowledge and experience and shall be accepted without liability on the part of DairyTech South Limited. Where such advice or recommendations are not acted upon then DairyTech South Limited shall require the Client or their agent to authorise commencement of the Works in writing. DairyTech South Limited shall not be liable in any way whatsoever for any damages or losses that occur after any subsequent commencement of the Works.
2.6 In the event that the Client requests DairyTech South Limited to:
(a) make an emergency Call-Out for critical equipment after hours or causes DairyTech South Limited to cancel or reschedule other work then DairyTech South Limited reserves the right to charge a minimum Call-Out fee of one (1) hour labour cost plus a per kilometre travelled rate plus any Materials used to undertake the Works unless otherwise agreed between DairyTech South Limited and the Client; and
(b) provide the Works urgently, that may require DairyTech South Limited’s staff to work outside normal business hours (including but not limited to working, through lunch breaks, weekends and/or Public Holidays) then DairyTech South Limited reserves the right to charge the Client additional labour costs (penalty rates will apply at time and a half normal rates), unless otherwise agreed between DairyTech South Limited and the Client.
2.7 If DairyTech South Limited 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.
2.8 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.
3. Authorised Representatives
3.1 The Client acknowledges that DairyTech South Limited shall (for the duration of the Works) liaise directly with one (1) authorised representative, and that once introduced as such to DairyTech South Limited, that person shall have the full authority of the Client to order any Works and/or to request any variation thereto on the Client’s behalf. The Client accepts that they will be solely liable to DairyTech South Limited for all additional costs incurred by DairyTech South Limited (including DairyTech South Limited’s profit margin) in providing any Works or variation/s requested thereto by the Client’s duly authorised representative.
4. Errors and Omissions
4.1 The Client acknowledges and accepts that DairyTech South Limited 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 DairyTech South Limited 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 DairyTech South Limited in respect of the Works.
4.2 If such an error and/or omission occurs in accordance with clause 4.1, and is not attributable to the negligence and/or wilful misconduct of DairyTech South Limited; the Client:
(a) shall not be entitled to treat this Contract as repudiated nor render it invalid; but
(b) shall not be responsible for any additional costs incurred by DairyTech South Limited arising from the error or omission.
5. Change in Control
5.1 The Client shall give DairyTech South Limited not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client and/or any other change in the Client’s details (including but not limited to, changes in the Client’s name, address, contact phone or fax number/s, change of trustees, or business practice). The Client shall be liable for any loss incurred by DairyTech South Limited as a result of the Client’s failure to comply with this clause.
6. Price and Payment
6.1 At DairyTech South Limited’s sole discretion, the Price shall be either:
(a) as indicated on invoices provided by DairyTech South Limited to the Client in respect of Works performed or Materials supplied; or
(b) DairyTech South Limited’s Price at the date of delivery of the Works according to DairyTech South Limited’s current price list; or
(c) DairyTech South Limited’s quoted Price (subject to clause 6.2) which shall be binding upon DairyTech South Limited provided that the Client shall accept DairyTech South Limited’s quotation in writing within thirty (30) days.
6.2 DairyTech South Limited 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, limitations to accessing the Worksite, obscured building/Worksite defects requiring remedial Works, incorrect measurements, plans and/or specifications provided by the Client, change of design, safety considerations (discovery of asbestos, etc.), prerequisite work by any third party not being completed, delays from third party suppliers, hard rock barriers below the surface, iron reinforcing rods in concrete or hidden pipes, etc) which are only discovered on commencement of the Works; or
(d) in the event of increases to DairyTech South Limited in the cost of labour or Materials which are beyond DairyTech South Limited’s control.
6.3 Variations will be charged for on the basis of DairyTech South Limited’s quotation, and will be detailed in writing, and shown as variations on DairyTech South Limited’s invoice. The Client shall be required to respond to any variation submitted by DairyTech South Limited within ten (10) working days. Failure to do so will entitle DairyTech South Limited 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.
6.4 At DairyTech South Limited’s sole discretion, a reasonable deposit may be required.
6.5 Time for payment for the Works being of the essence, the Price will be payable by the Client on the date/s determined by DairyTech South Limited, which may be:
(a) on or before delivery of the Materials;
(b) on completion of the Works;
(c) by way of progress payments in accordance with DairyTech South Limited’s specified progress payment schedule. Such progress payment claims may include the reasonable value of authorised variations and the value of any Materials delivered to the Worksite but not yet installed;
(d) for certain approved Clients, due twenty (20) days following the end of the month in which a statement is posted to the Client’s address or address for notices;
(e) the date specified on any invoice or other form as being the date for payment; or
(f) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Client by DairyTech South Limited.
6.6 At the agreement of both parties, payment of the Price may be subject to retention by the Client of an amount (hereafter called the "Retention Money"), being a set amount or equal to a percentage of the Price. The Client shall hold the Retention Money for the agreed period following completion of the Works during which time all Works are to be completed and/or all defects are to be remedied. Any Retention Money applicable to this Contract is to be dealt with in accordance with Subpart 2A of the Construction Contracts Act 2002 and as such no Retention Money shall be used other than to remedy defects in the performance of DairyTech South Limited’s obligations under the Contract.
6.7 Payment may be made by cash, electronic/on-line banking, credit card (a surcharge may apply per transaction), or by any other method as agreed to between the Client and DairyTech South Limited.
6.8 DairyTech South Limited may in its discretion allocate any payment received from the Client towards any invoice that DairyTech South Limited determines and may do so at the time of receipt or at any time afterwards. On any default by the Client DairyTech South Limited may re-allocate any payments previously received and allocated. In the absence of any payment allocation by DairyTech South Limited, payment will be deemed to be allocated in such manner as preserves the maximum value of DairyTech South Limited’s Purchase Money Security Interest (as defined in the PPSA) in the Materials.
6.9 The Client shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Client by DairyTech South Limited nor to withhold payment of any invoice because part of that invoice is in dispute, unless the request for payment by DairyTech South Limited is a claim made under the Construction Contracts Act 2002. Nothing in this clause 6.9 prevents the Client from the ability to dispute any invoice.
6.10 Unless otherwise stated the Price does not include GST. In addition to the Price, the Client must pay to DairyTech South Limited an amount equal to any GST DairyTech South Limited must pay for any supply by DairyTech South Limited under this or any other agreement for the sale of the Materials. The Client must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Client pays the Price. In addition, the Client must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.
7. Provision of the Works
7.1 Subject to clause 7.2 it is DairyTech South Limited’s responsibility to ensure that the Works start as soon as it is reasonably possible.
7.2 The Works’ commencement date will be put back and the completion date extended by whatever time is reasonable in the event that DairyTech South Limited claims an extension of time (by giving the Client written notice) where completion is delayed by an event beyond DairyTech South Limited’s control, including but not limited to any failure by the Client to:
(a) make a selection; or
(b) have the Worksite ready for the Works; or
(c) notify DairyTech South Limited that the Worksite is ready.
7.3 Any time specified by DairyTech South Limited for delivery of the Works is an estimate only and DairyTech South Limited will not be liable for any loss or damage incurred by the Client as a result of delivery being late. However, both parties agree that they shall make every endeavour to enable the Works to be supplied at the time and place as was arranged between both parties. In the event that DairyTech South Limited is unable to supply the Works as agreed solely due to any action or inaction of the Client, then DairyTech South Limited 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.
8. Risk
8.1 If DairyTech South Limited retains ownership of the Materials under clause 12 then:
(a) where DairyTech South Limited is supplying Materials only, all risk for the Materials shall immediately pass to the Client on delivery and the Client must insure the Materials on or before delivery. The cost of delivery is either included in the Price or is in addition to the Price as agreed between the parties. Delivery of the Materials shall be deemed to have taken place immediately at the time that either:
(i) the Client or the Client’s nominated carrier takes possession of the Materials at DairyTech South Limited’s address; or
(ii) the Materials are delivered by DairyTech South Limited or DairyTech South Limited’s nominated carrier to the Client’s nominated delivery address (even if the Client is not present at the address).
(b) unless otherwise agreed, where DairyTech South Limited is to both supply and install Materials then DairyTech South Limited shall maintain a Contract works insurance policy until the Works are completed. Upon completion of the Works all risk for the Works shall immediately pass to the Client.
8.2 Notwithstanding the provisions of clause 8.1 if the Client specifically requests DairyTech South Limited to leave Materials outside DairyTech South Limited’s premises for collection or to deliver the Materials to an unattended location then such Materials shall always be left at sole risk of the Client and it shall be the Client’s responsibility to ensure the Materials are insured adequately or at all. In the event that such Materials are lost, damaged or destroyed then replacement of the Materials shall be at the Client’s expense.
8.3 DairyTech South Limited shall be entitled to rely on the accuracy of any plans, specifications 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, DairyTech South Limited accepts no responsibility for any loss, damages, or costs however resulting from these inaccurate plans, specifications or other information.
8.4 The Client warrants that any structures to which the Materials are to be affixed are able to withstand the installation of the Materials and that any connections (including, but not limited to, electrical and plumbing connections etc) are of suitable capacity to handle the Materials once installed. If, for any reason (including but not limited to, the structure not being watertight, the discovery of asbestos, defective or unsafe wiring, etc.) DairyTech South Limited reasonably forms the opinion that the Client’s property is not safe for the installation of Materials to proceed then DairyTech South Limited shall be entitled to delay installation of the Materials (in accordance with clause 7.2) until DairyTech South Limited is satisfied that it is safe for the installation to proceed. DairyTech South Limited may in agreement with the Client bring the property up to a standard suitable for installation to proceed but all such Works undertaken, and any additional Materials supplied shall be treated as a variation and be charged for in addition to the Price.
8.5 The Client acknowledges and accepts that:
(a) where DairyTech South Limited has performed temporary repairs that:
(i) DairyTech South Limited offers no guarantee against the reoccurrence of the initial fault, or any further damage caused; and
(ii) DairyTech South Limited will immediately advise the Client of the fault and shall provide the Client with an estimate for the full repair required.
(b) DairyTech South Limited is only responsible for components that are replaced by DairyTech South Limited and does not at any stage accept any liability in respect of previous goods and/or services supplied by any other third party that subsequently fail and found to be the source of the failure;
(c) under no circumstances, will DairyTech South Limited handle removal of asbestos product. In the event asbestos (or other hazardous material) is discovered on the Worksite:
(i) DairyTech South Limited shall suspend the Works; and
(ii) the Client shall be fully responsible for the resolution of any resulting problems; and
(iii) any additional cost incurred by DairyTech South Limited shall be added to the Price under clause 6.2.
(d) Materials supplied may:
(i) fade or change colour over time;
(ii) expand, contract or distort as a result of exposure to heat, cold, weather;
(iii) mark or stain if exposed to certain substances; and
(iv) be damaged or disfigured by impact or scratching.
8.6 DairyTech South Limited accepts no responsibility for any damage or performance related problems with any Materials where they have not been used and/or maintained in accordance with DairyTech South Limited’s and/or the manufacturers’ recommendations.
9. Worksite Access and Condition
9.1 DairyTech South Limited is not responsible for the removal of rubbish from or clean-up of the building/construction Worksite/s. All rubbish generated by DairyTech South Limited will be placed in a designated area appointed by the Client but the responsibility of removal of same is the Client or the Client’s agent, unless otherwise agreed.
9.2 It is the intention of DairyTech South Limited and agreed by the Client that:
(a) the Client shall ensure that DairyTech South Limited has clear and free access to the Worksite at all times to enable them to undertake the Works (including carrying out Worksite inspections, gain signatures for required documents, and for the delivery and installation of the Materials). DairyTech South Limited shall not be liable for any loss or damage to the Worksite (including, without limitation, damage to pathways, driveways and concreted or paved or grassed areas) unless due to the negligence of DairyTech South Limited; and
(b) it is the Client’s responsibility to provide DairyTech South Limited, while at the Worksite, with adequate access to available water, electricity, toilet and washing facilities where required.
9.3 The Client agrees to be present at the Worksite when and as reasonably requested by DairyTech South Limited and its employees, contractors and/or agents.
9.4 Where DairyTech South Limited requires that Materials, tools etc. required for the Works be stored at the Worksite, the Client shall supply DairyTech South Limited a safe area for storage and shall take all reasonable efforts to protect all items from destruction, theft or damage. In the event that any of the stored items are destroyed, stolen or damaged, then the cost of repair or replacement shall be the Client’s responsibility.
9.5 Worksite Inductions
(a) in the event the Client requires an employee or sub-contractor of DairyTech South Limited to undertake a Worksite induction during working hours, the Client will be liable to pay the hourly charges for that period. If any induction needs to be undertaken prior to the commencement date then the Client shall be liable to pay DairyTech South Limited’s standard (and/or overtime, if applicable) hourly labour rate; or
(b) where DairyTech South Limited is in control of the Worksite, the Client and/or the Client’s third-party contractors must initially carry out DairyTech South Limited’s Health & Safety induction course before access to the Worksite will be granted. Inspection of the Worksite during the course of the Works will be by appointment only and unless otherwise agreed, in such an event the Client and/or third party acting on behalf of the Client must at all times be accompanied by DairyTech South Limited.
10. Underground Locations
10.1 Prior to DairyTech South Limited commencing any work the Client must advise DairyTech South Limited of the precise location of all underground services on the Worksite and clearly mark the same. The underground mains and services the Client must identify include, but are not limited to, electrical services, gas services, sewer services, pumping services, sewer connections, sewer sludge mains, water mains, irrigation pipes, telephone cables, fibre optic cables, oil pumping mains, and any other services that may be on the Worksite.
10.2 Whilst DairyTech South Limited will take all care to avoid damage to any underground services the Client agrees to indemnify DairyTech South Limited 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. Compliance with Laws
11.1 The Client and DairyTech South Limited shall comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities that may be applicable to the Works, including any WorkSafe health and safety laws relating or any other relevant safety standards or legislation pertaining to the Works.
11.2 Both parties acknowledge and agree:
(a) to comply with the Building Act 2004 (including any subsequent Amendments) and Code of Ethics, in respect of all workmanship and building products to be supplied during the course of the Works; and
(b) that Works will be provided in accordance with any current relevant Australian/New Zealand Standards applicable.
11.3 Where the Client has supplied products for DairyTech South Limited to complete the Works, the Client acknowledges that it accepts responsibility for the suitability of purpose and use for their products and the Intended Use and any faults inherent in those products. However, if in DairyTech South Limited’s opinion, it is believed that the materials supplied are Non-Conforming products and will not conform with New Zealand regulations, then DairyTech South Limited shall be entitled, without prejudice, to halt the Works until the appropriate conforming products are sourced and all costs associated with such a change to the plans and design will be invoiced in accordance with clause 6.2.
11.4 The Client shall obtain (at the expense of the Client) all licenses and approvals that may be required for the Works.
11.5 All work will be tested to ensure that it is electrically safe and is in accordance with the wiring rules and other standards applying to the electrical installation under the Electrical Safety Regulations. All of the cabling work will comply with all relevant Australian and New Zealand Wiring standards.
11.6 Notwithstanding clause 11.1 and pursuant to the Health & Safety at Work Act 2015 (the “HSW Act”), DairyTech South Limited agrees at all times to comply with sections 28 and 34 of the “HSW Act” with meeting their obligations for health and safety laws in the workplace regardless of whether they may be the party in control of the Worksite or where they may be acting as a sub-contractor for the Client who has engaged a third party head contractor.
12. Title
12.1 DairyTech South Limited and the Client agree that ownership of the Materials shall not pass until:
(a) the Client has paid DairyTech South Limited all amounts owing to DairyTech South Limited; and
(b) the Client has met all of its other obligations to DairyTech South Limited.
12.2 Receipt by DairyTech South Limited 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.
12.3 It is further agreed that:
(a) until ownership of the Materials passes to the Client in accordance with clause 12.1 that the Client is only a bailee of the Materials and unless the Materials have become fixtures must return the Materials to DairyTech South Limited on request;
(b) the Client holds the benefit of the Client’s insurance of the Materials on trust for DairyTech South Limited and must pay to DairyTech South Limited 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 DairyTech South Limited shall be sufficient evidence of DairyTech South Limited’s rights to receive the insurance proceeds direct from the insurer without the need for any person dealing with DairyTech South Limited to make further enquiries;
(d) the Client must not sell, dispose, or otherwise part with possession of the Materials other than in the ordinary course of business and for market value. If the Client sells, disposes or parts with possession of the Materials then the Client must hold the proceeds of any such act on trust for DairyTech South Limited and must pay or deliver the proceeds to DairyTech South Limited on demand;
(e) the Client should not convert or process the Materials or intermix them with other goods but if the Client does so then the Client holds the resulting product on trust for the benefit of DairyTech South Limited and must sell, dispose of or return the resulting product to DairyTech South Limited as it so directs;
(f) unless the Materials have become fixtures the Client irrevocably authorises DairyTech South Limited to enter any premises where DairyTech South Limited believes the Materials are kept and recover possession of the Materials;
(g) DairyTech South Limited may recover possession of any Materials in transit whether or not delivery has occurred;
(h) the Client shall not charge or grant an encumbrance over the Materials nor grant nor otherwise give away any interest in the Materials while they remain the property of DairyTech South Limited; and
(i) DairyTech South Limited may commence proceedings to recover the Price of the Materials sold notwithstanding that ownership of the Materials has not passed to the Client.
13. Personal Property Securities Act 1999 (“PPSA”)
13.1 Upon assenting to these terms and conditions in writing the Client 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 that have previously been supplied and that will be supplied in the future by DairyTech South Limited to the Client and the proceeds from such Materials as listed by DairyTech South Limited to the Client in invoices rendered from time to time.
13.2 The Client 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 DairyTech South Limited may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register;
(b) indemnify, and upon demand reimburse, DairyTech South Limited 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 or the proceeds of such Materials in favour of a third party without the prior written consent of DairyTech South Limited; and
(d) immediately advise DairyTech South Limited 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.
13.3 Unless otherwise agreed to in writing by DairyTech South Limited, the Client waives its right to receive a verification statement in accordance with section 148 of the PPSA.
13.4 The Client shall unconditionally ratify any actions taken by DairyTech South Limited under clauses 13.1 to 13.3.
13.5 Subject to any express provisions to the contrary (including those contained in this clause 13), nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.
14. Security and Charge
14.1 In consideration of DairyTech South Limited agreeing to supply the Works, the Client charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Client either now or in the future, and the Client grants a security interest in all of its present and after-acquired property, to secure the performance by the Client of its obligations under these terms and conditions (including, but not limited to, the payment of any money). The terms of the charge and security interest are the terms of Memorandum 2018/4344 registered pursuant to s.209 of the Land Transfer Act 2017.
14.2 The Client indemnifies DairyTech South Limited from and against all DairyTech South Limited’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising DairyTech South Limited’s rights under this clause.
14.3 The Client irrevocably appoints DairyTech South Limited and each director of DairyTech South Limited as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 14 including, but not limited to, signing any document on the Client’s behalf.
15. Defects and Returns
15.1 The Client shall inspect the Materials on delivery and shall within seven (7) days of delivery (time being of the essence) notify DairyTech South Limited of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Client shall afford DairyTech South Limited an opportunity to inspect the Materials within a reasonable time following delivery if the Client believes the Materials are defective in any way. If the Client shall fail to comply with these provisions the Materials shall be presumed to be free from any defect or damage. For defective Materials, which DairyTech South Limited has agreed in writing that the Client is entitled to reject, DairyTech South Limited’s liability is limited to either (at DairyTech South Limited’s discretion) replacing the Materials or repairing the Materials.
15.2 Returns will only be accepted provided that:
(a) the Client has complied with the provisions of clause 15.1; and
(b) DairyTech South Limited has agreed in writing to accept the return of the Materials; and
(c) the Materials are returned at the Client’s cost within ten (10) days of the delivery date; and
(d) DairyTech South Limited 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.
15.3 If DairyTech South Limited accepts that the Client is entitled to reject the Materials following their return pursuant to clause 15.2(b) DairyTech South Limited will reimburse the Client’s actual and reasonable costs of return delivery.
15.4 DairyTech South Limited may (in its discretion) accept the return of Materials for credit but this may incur a restocking and handling fee of twenty percent (20%) of the value of the returned Materials plus any freight.
15.5 Subject to clause 15.1, non-stocklist items or Materials made to the Client’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 DairyTech South Limited warrants that if any defect in any Works provided by DairyTech South Limited becomes apparent and is reported to DairyTech South Limited within twelve (12) months of the date of delivery (time being of the essence) then DairyTech South Limited will either (at DairyTech South Limited’s sole discretion) replace or remedy the defect.
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 Client to properly maintain any Materials or serviced item; or
(ii) failure on the part of the Client to follow any instructions or guidelines provided by DairyTech South Limited; or
(iii) any use of any Materials or serviced item otherwise than for any application specified on a quote or order form; or
(iv) the continued use of any Materials or serviced item after any defect becomes apparent or would have become apparent to a reasonably prudent operator or user; or
(v) fair wear and tear, any accident or act of God.
(b) the warranty shall cease and DairyTech South Limited shall thereafter in no circumstances be liable under the terms of the warranty if the workmanship is repaired, altered or overhauled without DairyTech South Limited’s consent.
(c) in respect of all claims DairyTech South Limited shall not be liable to compensate the Client for any delay in either replacing or remedying the workmanship or in properly assessing the Client’s claim.
16.3 For Materials not manufactured by DairyTech South Limited, the warranty shall be the current warranty provided by the manufacturer of the Materials. DairyTech South Limited 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.
17. Consumer Guarantees Act 1993 and the Fair Trading Act 1986
17.1 If the Client is acquiring Materials for the purposes of a trade or business, the Client acknowledges that the provisions of the Consumer Guarantees Act 1993 (“CGA”) do not apply to the supply of Materials by DairyTech South Limited to the Client.
17.2 DairyTech South Limited agrees to abide by the provisions of the Fair Trading Act 1986 (“FTA”).
18. Intellectual Property
18.1 Where DairyTech South Limited has designed, drawn, written plans or a schedule of Works, or created any products for the Client, then the copyright in all such designs, drawings, documents, plans, schedules and products shall remain vested in DairyTech South Limited, and shall only be used by the Client at DairyTech South Limited’s discretion. Under no circumstances may such designs, drawings and documents be used without the express written approval of DairyTech South Limited.
18.2 The Client warrants that all designs, specifications or instructions given to DairyTech South Limited will not cause DairyTech South Limited to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify DairyTech South Limited against any action taken by a third party against DairyTech South Limited in respect of any such infringement.
18.3 The Client agrees that DairyTech South Limited may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings, plans or products which DairyTech South Limited has created for the Client.
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 DairyTech South Limited’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
19.2 If the Client owes DairyTech South Limited any money the Client shall indemnify DairyTech South Limited from and against all costs and disbursements incurred by DairyTech South Limited in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, DairyTech South Limited’s collection agency costs, and bank dishonour fees).
19.3 Further to any other rights or remedies DairyTech South Limited may have under this Contract, if a Client has made payment to DairyTech South Limited, and the transaction is subsequently reversed, the Client shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by DairyTech South Limited under this clause 19, where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Client’s obligations under this Contract.
19.4 Without prejudice to DairyTech South Limited’s other remedies at law DairyTech South Limited shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to DairyTech South Limited shall, whether or not due for payment, become immediately payable if:
(a) any money payable to DairyTech South Limited becomes overdue, or in DairyTech South Limited’s opinion the Client will be unable to make a payment when it falls due;
(b) the Client has exceeded any applicable credit limit provided by DairyTech South Limited;
(c) the Client becomes insolvent or bankrupt, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
(d) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.
20. Cancellation
20.1 Without prejudice to any other remedies the parties may have, if at any time either party is in breach of any obligation (including those relating to payment) under these terms and conditions the other party may suspend or terminate the supply or purchase of Materials or Works to the other party. Neither party will be liable for any loss or damage the other party suffers because one of the parties has exercised its rights under this clause.
20.2 If DairyTech South Limited, due to reasons beyond DairyTech South Limited’s reasonable control, is unable to the deliver any Materials or Works to the Client, DairyTech South Limited may cancel any contract to which these terms and conditions apply or cancel delivery of Materials or Works at any time before the Materials or Works are delivered by giving written notice to the Client. On giving such notice DairyTech South Limited shall repay to the Client any money paid by the Client for the Materials or Works. DairyTech South Limited shall not be liable for any loss or damage whatsoever arising from such cancellation.
20.3 The Client may cancel delivery of the Materials and/or Works by written notice served within seventy-two (72) hours of placement of the order. Failure by the Client to otherwise accept delivery of the Materials and/or Works shall place the Client in breach of this Contract.
20.4 Cancellation of orders for products made to the Client’s specifications, or for non-stocklist items, will definitely not be accepted once production has commenced, or an order has been placed.
21. Privacy Policy
21.1 All emails, documents, images or other recorded information held or used by DairyTech South Limited is “Personal Information” as defined and referred to in clause 21.3 and therefore considered confidential. DairyTech South Limited acknowledges its obligation in relation to the handling, use, disclosure and processing of Personal Information pursuant to the Privacy Act 2020 (“the Act”) including Part II of the OECD Guidelines and as set out in the Act. DairyTech South Limited acknowledges that in the event it becomes aware of any data breaches and/or disclosure of the Client’s Personal Information, held by DairyTech South Limited that may result in serious harm to the Client, DairyTech South Limited will notify the Client in accordance with the Act. Any release of such Personal Information must be in accordance with the Act and must be approved by the Client by written consent, unless subject to an operation of law.
21.2 Notwithstanding clause 21.1, privacy limitations will extend to DairyTech South Limited in respect of Cookies where the Client utilises DairyTech South Limited’s website to make enquiries. DairyTech South Limited agrees to display reference to such Cookies and/or similar tracking technologies, such as pixels and web beacons (if applicable), such technology allows the collection of Personal Information such as the Client’s:
(a) IP address, browser, email client type and other similar details;
(b) tracking website usage and traffic; and
(c) reports are available to DairyTech South Limited when DairyTech South Limited sends an email to the Client, so DairyTech South Limited may collect and review that information (“collectively Personal Information”)
If the Client consents to DairyTech South Limited’s use of Cookies on DairyTech South Limited’s website and later wishes to withdraw that consent, the Client may manage and control DairyTech South Limited’s privacy controls via the Client’s web browser, including removing Cookies by deleting them from the browser history when exiting the site.
21.3 The Client authorises DairyTech South Limited or DairyTech South Limited’s agent to:
(a) access, collect, retain and use any information about the Client;
(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 Client’s creditworthiness; or
(ii) for the purpose of marketing products and services to the Client.
(b) disclose information about the Client, whether collected by DairyTech South Limited from the Client directly or obtained by DairyTech South Limited from any other source, to any other credit provider or any credit reporting agency for the purposes of providing or obtaining a credit reference, debt collection or notifying a default by the Client.
21.4 Where the Client is an individual the authorities under clause 21.3 are authorities or consents for the purposes of the Privacy Act 2020.
21.5 The Client shall have the right to request (by e-mail) from DairyTech South Limited, a copy of the Personal Information about the Client retained by DairyTech South Limited and the right to request that DairyTech South Limited correct any incorrect Personal Information.
21.6 DairyTech South Limited will destroy Personal Information upon the Client’s request (by e-mail) or if it is no longer required unless it is required in order to fulfil the obligations of this Contract or is required to be maintained and/or stored in accordance with the law.
21.7 The Client can make a privacy complaint by contacting DairyTech South Limited via e-mail. DairyTech South Limited will respond to that complaint within seven (7) days of receipt and will take all reasonable steps to make a decision as to the complaint within twenty (20) days of receipt of the complaint. In the event that the Client is not satisfied with the resolution provided, the Client can make a complaint to the Privacy Commissioner at http://www.privacy.org.nz.
22. Suspension of Works
22.1 Where the Contract is subject to section 24A of the Construction Contracts Act 2002, the Client hereby expressly acknowledges that:
(a) DairyTech South Limited has the right to suspend work within five (5) working days of written notice of its intent to do so if a payment claim is served on the Client, and:
(i) the payment is not paid in full by the due date for payment in accordance with clause 6.5 and/or any subsequent amendments or new legislation and no payment schedule has been given by the Client; or
(ii) a scheduled amount stated in a payment schedule issued by the Client in relation to the payment claim is not paid in full by the due date for its payment; or
(iii) the Client has not complied with an adjudicator’s notice that the Client must pay an amount to DairyTech South Limited by a particular date; and
(iv) DairyTech South Limited has given written notice to the Client of its intention to suspend the carrying out of construction work under the construction Contract.
(b) if DairyTech South Limited 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 Client or by any person claiming through the Client; 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.
(c) if DairyTech South Limited exercises the right to suspend work, the exercise of that right does not:
(i) affect any rights that would otherwise have been available to DairyTech South Limited under the Contract and Commercial Law Act 2017; or
(ii) enable the Client to exercise any rights that may otherwise have been available to the Client under that Act as a direct consequence of DairyTech South Limited suspending work under this provision;
(d) due to any act or omission by the Client, the Client effectively precludes DairyTech South Limited from continuing the Works or performing or complying with DairyTech South Limited’s obligations under this Contract, then without prejudice to DairyTech South Limited’s other rights and remedies, DairyTech South Limited may suspend the Works immediately after serving on the Client a written notice specifying the payment default or the act, omission or default upon which the suspension of the Works is based. All costs and expenses incurred by DairyTech South Limited as a result of such suspension and recommencement shall be payable by the Client as if they were a variation.
22.2 If pursuant to any right conferred by this Contract, DairyTech South Limited 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, DairyTech South Limited 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;
(c) by sending it by registered post to 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 Client at any time upon or subsequent to entering in to the Contract is acting in the capacity of trustee of any trust or as an agent for a trust (“Trust”) then whether or not DairyTech South Limited may have notice of the Trust, the Client covenants with DairyTech South Limited as follows:
(a) the Contract extends to all rights of indemnity which the Client now or subsequently may have against the Trust, the trustees and the trust fund;
(b) the Client has full and complete power and authority under the Trust or from the Trustees of the Trust as the case maybe to enter into the Contract and the provisions of the Trust do not purport to exclude or take away the right of indemnity of the Client against the Trust, the trustees and or the trust fund. The Client will not release the right of indemnity or commit any breach of trust or be a party to any other action which might prejudice that right of indemnity;
(c) the Client will not during the term of the Contract without consent in writing of DairyTech South Limited (DairyTech South Limited will not unreasonably withhold consent), cause, permit, or suffer to happen any of the following events:
(i) the removal, replacement or retirement of the Client 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 fund or 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 section 26 of 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 Invercargill Courts of New Zealand.
25.4 Subject to the CGA, the liability of DairyTech South Limited and the Client under this Contract shall be limited to the Price.
25.5 DairyTech South Limited may licence and/or assign all or any part of its rights and/or obligations under this Contract without the Client’s consent provided the assignment does not cause detriment to the Client.
25.6 The Client cannot licence or assign without the written approval of DairyTech South Limited.
25.7 DairyTech South Limited may elect to subcontract out any part of the Works but shall not be relieved from any liability or obligation under this Contract by so doing. Furthermore, the Client agrees and understands that they have no authority to give any instruction to any of DairyTech South Limited’s sub-contractors without the authority of DairyTech South Limited.
25.8 The Client agrees that DairyTech South Limited may amend their general terms and conditions for subsequent future Contracts with the Client by disclosing such to the Client in writing. These changes shall be deemed to take effect from the date on which the Client accepts such changes, or otherwise at such time as the Client makes a further request for DairyTech South Limited to provide Works to the Client.
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, national or global pandemics and/or the implementation of regulation, directions, rules or measures being enforced by Governments or embargo, including but not limited to, any Government imposed border lockdowns (including, worldwide destination ports), etc, (“Force Majeure”) or other event beyond the reasonable control of either party. This clause does not apply to a failure by the Client to make any payment due to DairyTech South Limited, following cessation of a Force Majeure.
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.