Pipe Masters Limited T/A Pipe Masters Limited – Terms & Conditions of Trade

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 “Pipe Masters” means Pipe Masters Limited T/A Pipe Masters Limited, its successors and assigns.

1.3 “Client” means the person/s, entities or any person acting on behalf of and with the authority of the Client requesting Pipe Masters 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.

1.4 “Works” means all Works (including consultation, manufacturing and/or installation services) or Materials supplied by Pipe Masters 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).

1.5 “Price” means the Price payable (plus any Goods and Services Tax (“GST”) where applicable) for the Works as agreed between Pipe Masters and the Client in accordance with clause 4 below.

 

2. Acceptance

2.1 The Client is taken to have exclusively accepted and is 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 that the supply of Works on credit shall not take effect until the Client has completed a credit application with Pipe Masters and it has been approved with a credit limit established for the account.

2.5 In the event that the supply of Works requested exceeds the Client’s credit limit and/or the account exceeds the payment terms, Pipe Masters reserves the right to refuse delivery.

2.6 Where the Client is a tenant (and therefore not the owner of the land and premises where Works are to be carried out) then the Client warrants that they have obtained the full consent of the owner for Pipe Masters to carry out the Works on the owner’s land and premises. The Client acknowledges and agrees that they shall be personally liable for full payment of the Price for the Works provided under this Contract and to indemnify Pipe Masters against any claim made by the owner of the premises (howsoever arising) in relation to the provision of the Works by Pipe Masters, except where such claim has arisen because of the negligence of Pipe Masters when undertaking the Works. Furthermore, the Client agrees that they shall, upon request from Pipe Masters, provide evidence that:

(a) they are the owner of the land and premises upon which the Works are be undertaken; or

(b) where they are a tenant, that they have the consent of the owner for the Works to be carried out on the land and premises.

2.7 In the event that Pipe Masters is required to provide the Works urgently, that may require Pipe Masters’ staff to work outside normal business hours (including but not limited to working, through lunch breaks, weekends and/or Public Holidays) then Pipe Masters 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 Pipe Masters and the Client.

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. Change in Control

3.1 The Client shall give Pipe Masters 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 Pipe Masters as a result of the Client’s failure to comply with this clause.

 

4. Price and Payment

4.1 At Pipe Masters’ sole discretion the Price shall be either:

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

(b) Pipe Masters’ Price at the date of delivery of the Works according to Pipe Masters’ current pricelist; or (c) Pipe Masters’ quoted Price (subject to clause 4.2) which shall be binding upon Pipe Masters provided that the Client shall accept Pipe Masters’ quotation in writing within thirty (30) days.

4.2 Pipe Masters 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, limitations to the Worksite access and/or crawl spaces, prerequisite work by a third party not being completed, inaccurate measurements, plans or specifications supplied by the Client, hard rock or other barriers below the surface, iron reinforcing rods in concrete, or hidden pipes and wiring, etc.) which are only discovered on commencement of the Works; or

(d) in the event of increases to Pipe Masters in the cost of labour or materials which are beyond Pipe Masters’ control.

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

4.4 At Pipe Masters’ sole discretion a deposit may be required.

4.5 Time for payment for the Works being of the essence, the Price will be payable by the Client on the date/s determined by Pipe Masters, which may be:

(a) by way of progress payments in accordance with Pipe Masters’ 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;

(b) for certain approved Client’s, 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;

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

(d) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Client by Pipe Masters.

4.6 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 – sections 18(a) to 18(i) of the Construction Contracts Amendment Act 2015 and as such no Retention Money shall be use other than to remedy defects in the performance of Pipe Masters’ obligations under the Contract.

4.7 Payment may be made by cheque, bank cheque, electronic/on-line banking, or by any other method as agreed to between the Client and Pipe Masters.

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

4.9 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 Pipe Masters nor to withhold payment of any invoice because part of that invoice is in dispute, unless the request for payment by Pipe Masters is a claim made under the Construction Contracts Act 2002. Nothing in this clause 4.9 prevents the Client from the ability to dispute any invoice.

4.10 Unless otherwise stated the Price does not include GST. In addition to the Price, the Client must pay to Pipe Masters an amount equal to any GST Pipe Masters must pay for any supply by Pipe Masters 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.

 

5. Provision of the Works 5.1 Subject to clause 5.2 it is Pipe Masters’ responsibility to ensure that the Works start as soon as it is reasonably possible.

5.2 The Works’ commencement date will be put back and the completion date extended by whatever time is reasonable in the event that Pipe Masters claims an extension of time (by giving the Client written notice) where completion is delayed by an event beyond Pipe Masters’ 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 Pipe Masters that the Worksite is ready.

5.3 At Pipe Masters’ sole discretion, the cost of delivery is either included in the Price or is in addition to the Price.

5.4 Pipe Masters may deliver the Works by separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.

5.5 Any time specified by Pipe Masters for delivery of the Works is an estimate only and Pipe Masters 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 Pipe Masters is unable to supply the Works as agreed solely due to any action or inaction of the Client, then Pipe Masters 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.

 

6. Risk 6.1 If Pipe Masters retains ownership of the Materials under clause 8 then:

(a) where Pipe Masters 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. 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 Pipe Masters’ address; or

(ii) the Materials are delivered by Pipe Masters or Pipe Masters’ nominated carrier to the Client’s nominated delivery address (even if the Client is not present at the address).

(b) where Pipe Masters is to both supply and install Materials then Pipe Masters 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. 6.2 Notwithstanding the provisions of clause 6.1 if the Client specifically requests Pipe Masters to leave Materials outside Pipe Masters’ 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.

6.3 Pipe Masters 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, Pipe Masters accepts no responsibility for any loss, damages, or costs however resulting from these inaccurate plans, specifications or other information.

6.4 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 Pipe Masters, or Pipe Masters’ employees, reasonably form the opinion that the Client’s premises is not safe for the Works to proceed then Pipe Masters shall be entitled to delay the provision of the Works (in accordance with the provisions of clause 5.2 above) until Pipe Masters is satisfied that it is safe for the installation to proceed.

6.5 Where Pipe Masters gives advice or recommendations to the Client, or the Client’s agent, regarding the suitability of the Worksite for the installation of the Materials or similar works and such advice or recommendations are not acted upon then Pipe Masters shall require the Client or their agent to authorise commencement of the Works in writing. Pipe Masters shall not be liable in any way whatsoever for any damages or losses that occur after any subsequent commencement of the Works.

6.6 The Client acknowledges and accepts that:

(a) choked drains generally indicate pipelines are not fully efficient (i.e. breakages, cracks, negative fall or tree root entry); the drain line cannot be repaired or rectified just by clearing it on its own. Once cleared, Pipe Masters cannot give any guarantee against reoccurrence or further damage. In the event that the Client requests Pipe Masters to use drain/pipe unblocking equipment (including but not limited to, CCTV camera or an electric eel), and Pipe Masters does not recommend the use of such equipment due to the risk of the equipment becoming lodged or stuck, Pipe Masters may require the Client or their agent to authorise commencement of the Works in writing. If the drain/pipe unblocking equipment subsequently becomes lodged or stuck, the Client shall be responsible for the cost of repair, replacement and/or retrieval of said equipment; and

(b) where Pipe Masters has performed temporary repairs that:

(i) Pipe Masters offers no guarantee against the reoccurrence of the initial fault, or any further damage caused; and

(ii) Pipe Masters will immediately advise the Client of the fault and shall provide the Client with an estimate for the full repair required; and

(c) Pipe Masters is only responsible for components that are replaced by Pipe Masters 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; and

(d) under no circumstances, will Pipe Masters handle removal of asbestos product. In the event asbestos (or other hazardous material) is discovered on the Worksite:

(i) Pipe Masters 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 Pipe Masters shall be added to the Price under clause 4.2; and

(e) Materials supplied may:

(i) exhibit variations in shade, colour, texture, surface and finish, and may fade or change colour over time. Pipe Masters will make every effort to match batches of product supplied in order to minimise such variations but shall not be liable in any way whatsoever where such variations occur; and

(ii) expand, contract or distort as a result of exposure to heat, cold, weather; and

(iii) mark or stain if exposed to certain substances; and

(iv) be damaged or disfigured by impact or scratching; and

(v) create undesirable smells caused by a system as a result of its normal operation.

6.7 Pipe Masters is not insured to remove furniture or fittings and will not do so, nor is Pipe Masters licensed to move electrical appliances.

6.8 Where Pipe Masters requires that Materials, tools etc. required for the Works be stored at the Worksite, the Client shall supply Pipe Masters 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.

 

7. Access

7.1 The Client shall ensure that Pipe Masters has clear and free access to the Worksite at all times to enable them to undertake the Works. Pipe Masters 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 Pipe Masters.

7.2 Worksite Inductions

(a) in the event the Client requires an employee or sub-contractor of Pipe Masters 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 Pipe Masters’ standard (and/or overtime, if applicable) hourly labour rate; or

(b) where Pipe Masters is in control of the Worksite, the Client and/or the Clients third party contractors must initially carry out Pipe Masters’ 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 Pipe Masters.

 

8. Underground Locations

8.1 Prior to Pipe Masters commencing any work the Client must advise Pipe Masters 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.

8.2 Whilst Pipe Masters will take all care to avoid damage to any underground services the Client agrees to indemnify Pipe Masters 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 8.1.

 

9. Compliance with Laws

9.1 The Client and Pipe Masters 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.

9.2 Both parties acknowledge and agree:

(a) to comply with the Building Act 2004 (including any subsequent Amendments), 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.

9.3 Where the Client has supplied products for Pipe Masters 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 Pipe

Masters’ opinion, it is believed that the materials supplied are non-conforming products and will not conform with New Zealand regulations, then Pipe Masters 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 4.2.

9.4 The Client shall obtain (at the expense of the Client) all licenses and approvals that may be required for the Works.

9.5 Prior to commencement of any Works Pipe Masters shall carry a routine soundness test of the Worksite to ensure there are not any gas leaks in the existing pipework. In the event of such a discovery Pipe Masters where necessary will have the gas supply capped-off until the fault is found and repaired at the Client’s expense.

9.6 The Client acknowledges and accepts that in instances where the gas supply is turned off at the meter or bottles by Pipe Masters in order to carry out the soundness test that parts within a gas appliance may fail due to not being turned off and serviced for a long period of time including, thermocouples, blocked pilot tubes, and SIT valves on pilot assemblies. Any costs associated with such an event shall be borne by the Client.

9.7 The Client warrants that any existing plumbing, gasfitting and/or associated services in or upon the Worksite that is subject to the Materials and/or Works are in compliance with regulations. Pipe Masters reserves the right to halt all Works (in accordance with the provisions of clause 5.2 above) if in their opinion the Worksite is unsafe and/or the current positioning of the unit is illegal due to not meeting the required clearances then the Client will be informed of this and will be given a revised quotation or estimate to install the new appliance in a safe and legal position. Should the Client not wish to proceed Pipe Masters will charge a standard fee for the time spent on Worksite based on Pipe Masters’ quotation. 9.8 Notwithstanding clause 9.1 and pursuant to the Health & Safety at Work Act 2015 (the “HSW Act”), Pipe Masters 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.

 

10. Title

10.1 Pipe Masters and the Client agree that ownership of the Materials shall not pass until:

(a) the Client has paid Pipe Masters all amounts owing to Pipe Masters; and

(b) the Client has met all of its other obligations to Pipe Masters.

10.2 Receipt by Pipe Masters 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.

10.3 It is further agreed that: (a) until ownership of the Materials passes to the Client in accordance with clause 10.1 that the Client is only a bailee of the Materials and unless the Materials have become fixtures must return the Materials to Pipe Masters on request;

(b) the Client holds the benefit of the Client’s insurance of the Materials on trust for Pipe Masters and must pay to Pipe Masters 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 Pipe Masters shall be sufficient evidence of Pipe Masters’ rights to receive the insurance proceeds direct from the insurer without the need for any person dealing with Pipe Masters 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 Pipe Masters and must pay or deliver the proceeds to Pipe Masters 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 Pipe Masters and must sell, dispose of or return the resulting product to Pipe Masters as it so directs;

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

(g) Pipe Masters 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 Pipe Masters; and

(i) Pipe Masters may commence proceedings to recover the Price of the Materials sold notwithstanding that ownership of the Materials has not passed to the Client.

 

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

11.1 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 Pipe Masters to the Client, and the proceeds from such Materials.

11.2 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 Pipe Masters may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register;

(b) indemnify, and upon demand reimburse, Pipe Masters 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 Pipe Masters; and

(d) immediately advise Pipe Masters 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.

11.3 Pipe Masters and the Client agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms and conditions.

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

11.5 Unless otherwise agreed to in writing by Pipe Masters, the Client waives its right to receive a verification statement in accordance with section 148 of the PPSA. 11.6 The Client shall unconditionally ratify any actions taken by Pipe Masters under clauses 11.1 to 11.5. 11.7 Subject to any express provisions to the contrary (including those contained in this clause 11), nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.

 

12. Security and Charge

12.1 In consideration of Pipe Masters 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.

12.2 The Client indemnifies Pipe Masters from and against all Pipe Masters’ costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising Pipe Masters’ rights under this clause.

12.3 The Client irrevocably appoints Pipe Masters and each director of Pipe Masters as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 12 including, but not limited to, signing any document on the Client’s behalf.

 

13. Defects in Materials

13.1 The Client shall inspect the Materials on delivery and shall within seven (7) days of delivery (time being of the essence) notify Pipe Masters of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Client shall afford Pipe Masters 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 Pipe Masters has agreed in writing that the Client is entitled to reject, Pipe Masters’ liability is limited to either (at Pipe Masters’ discretion) replacing the Materials or repairing the Materials. 13.2 Materials will not be accepted for return other than in accordance with 13.1 above.

 

14. Warranties 14.1 Subject to the conditions of warranty set out in clause 15.2 Pipe Masters warrants that if any defect in any Materials manufactured or Works provided by Pipe Masters becomes apparent and is reported to Pipe Masters within twelve (12) months of the date of delivery (time being of the essence) then Pipe Masters will either (at Pipe Masters’ sole discretion) replace or remedy the defect. 14.2 The conditions applicable to the warranty given by clause 15.1 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 Pipe Masters; 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 Pipe Masters shall thereafter in no circumstances be liable under the terms of the warranty if the workmanship is repaired, altered or overhauled without Pipe Masters’ consent.

(c) in respect of all claims Pipe Masters 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.

14.3 For Materials not manufactured by Pipe Masters, the warranty shall be the current warranty provided by the manufacturer of the Materials. Pipe Masters 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.

 

15. Consumer Guarantees Act 1993

15.1 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 Pipe Masters to the Client.

 

16. Intellectual Property

16.1 Where Pipe Masters 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 Pipe Masters, and shall only be used by the Client at Pipe Masters’ discretion. Under no circumstances may such designs, drawings and documents be used without the express written approval of Pipe Masters.

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

16.3 The Client agrees that Pipe Masters may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings, plans or products which Pipe Masters has created for the Client.

 

17. Default and Consequences of Default

17.1 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 Pipe Masters’ sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.

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

17.3 Further to any other rights or remedies Pipe Masters may have under this Contract, if a Client has made payment to Pipe Masters, 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 Pipe Masters under this clause 18, 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.

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

(a) any money payable to Pipe Masters becomes overdue, or in Pipe Masters’ 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 Pipe Masters;

(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.

 

18. Suspension of Works

18.1 Where the Contract is subject to section 24A of the Construction Contracts Act 2002, the Client hereby expressly acknowledges that:

(a) Pipe Masters 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 4.5 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 Pipe Masters by a particular date; and

(iv) Pipe Masters has given written notice to the Client of its intention to suspend the carrying out of construction work under the construction Contract.

(b) if Pipe Masters 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 Pipe Masters exercises the right to suspend work, the exercise of that right does not:

(i) affect any rights that would otherwise have been available to Pipe Masters 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 Pipe Masters suspending work under this provision;

(d) due to any act or omission by the Client, the Client effectively precludes Pipe Masters from continuing the Works or performing or complying with Pipe Masters’ obligations under this Contract, then without prejudice to Pipe Masters’ other rights and remedies, Pipe Masters 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 Pipe Masters as a result of such suspension and recommencement shall be payable by the Client as if they were a variation.

18.2 If pursuant to any right conferred by this Contract, Pipe Masters 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, Pipe Masters shall be entitled to terminate the Contract, in accordance with clause 20.

 

19. Cancellation

19.1 Without prejudice to any other rights or remedies Pipe Masters may have, if at any time the Client 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 Client of such notice/s) then Pipe Masters may suspend or terminate the supply of the Works. Pipe Masters will not be liable to the Client for any loss or damage the Client suffers because Pipe Masters has exercised its rights under this clause.

19.2 Pipe Masters 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 Client. On giving such notice Pipe Masters shall repay to the Client any sums paid in respect of the Price, less any amounts owing by the Client to Pipe Masters for Works already performed. Pipe Masters shall not be liable for any loss or damage whatsoever arising from such cancellation.

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

19.4 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.

 

20. Privacy Policy

20.1 All emails, documents, images or other recorded information held or used by Pipe Masters is “Personal Information” as defined and referred to in clause 21.3 and therefore considered confidential. Pipe Masters 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 as set out in the Act. Pipe Masters acknowledges that in the event it becomes aware of any data breaches and/or disclosure of the Client’s Personal Information, held by Pipe Masters that may result in serious harm to the Client, Pipe Masters will notify the Client in accordance with the Act. Any release of such Personal Information must be in accordance with the Act must be approved by the Client by written consent, unless subject to an operation of law. 20.2 Notwithstanding clause 21.1, privacy limitations will extend to Pipe Masters in respect of cookies where the Client utilises Pipe Masters’ website to make enquiries. Pipe Masters 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 Pipe Masters when Pipe Masters sends an email to the Client, so Pipe Masters may collect and review that information (“collectively Personal Information”)

If the Client consents to Pipe Masters’ use of cookies on Pipe Masters’ website and later wishes to withdraw that consent, the Client may manage and control Pipe Masters’ privacy controls via the Client’s web browser, including removing cookies by deleting them from the browser history when exiting the site.

20.3 The Client authorises Pipe Masters or Pipe Masters’ 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 Pipe Masters from the Client directly or obtained by Pipe Masters 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. 20.4 Where the Client is an individual the authorities under clause 21.3 are authorities or consents for the purposes of the Privacy Act 2020.

20.5 The Client shall have the right to request (by e-mail) from Pipe Masters, a copy of the Personal Information about the Client retained by Pipe Masters and the right to request that Pipe Masters correct any incorrect Personal Information.

20.6 Pipe Masters 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.

20.7 The Client can make a privacy complaint by contacting Pipe Masters via e-mail. Pipe Masters 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.

 

21. General

21.1 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).

21.2 Any written notice given under this Contract shall be delivered by handing the notice to the other party, in person, leaving it at the address of the other party as stated in this Contract, or by sending it by registered post to the address of the other party as stated in this Contract.

21.3 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.

21.4 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 Tauranga courts, New Zealand.

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

21.6 Pipe Masters may licence and/or assign all or any part of its rights and/or obligations under this Contract without the Client’s consent.

21.7 The Client cannot licence or assign without the written approval of Pipe Masters.

21.8 Pipe Masters 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 Pipe Masters’ sub-contractors without the authority of Pipe Masters.

21.9 The Client agrees that Pipe Masters 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 Pipe Masters to provide Works to the Client.

21.10 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 a payment to Pipe Masters.

21.11 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.