Terms & Conditions
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 “PHC” means Plumbing & Heating Centre Limited, its successors and assigns or any person acting on behalf of and with the authority of Plumbing & Heating Centre Limited.
1.3 “Client” means the person/s, entities or any person acting on behalf of and with the authority of the Client requesting PHC 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 PHC 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 “Worksite” means the address nominated by the Client to which the Materials are to be supplied by PHC.
1.6 “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.
1.7 “Non-Conforming Building Product” means any associated building products that are regarded as Non-Conforming for an Intended Use if, when associated with the Works:
the product is not, or will not be, safe; or does not, or will not, comply with the relevant regulatory provisions; or 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.
1.8 “Confidential Information” means information of a confidential nature whether oral, written or in electronic form including, but not limited to, this Contract, either party’s intellectual property, operational information, know-how, trade secrets, financial and commercial affairs, contracts, client information (including but not limited to, “Personal Information” such as: name, address, D.O.B, occupation, driver’s license details, electronic contact (email, Facebook or Twitter details), medical insurance details or next of kin and other contact information (where applicable), previous credit applications, credit history) and pricing details.
1.9 “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 PHC’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.
1.10 “Price” means the Price payable (plus any Goods and Services Tax (“GST”) where applicable) for the Works as agreed between PHC and the Client in accordance with clause 6 below.
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 PHC 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, PHC 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 PHC 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 PHC against any claim made by the owner of the premises (howsoever arising) in relation to the provision of the Works by PHC, except where such claim has arisen because of the negligence of PHC when undertaking the Works. Furthermore, the Client agrees that they shall, upon request from PHC, provide evidence that:
they are the owner of the land and premises upon which the Works are be undertaken; or
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 PHC is required to provide the Works urgently, that may require PHC’s staff to work outside normal business hours (including but not limited to working, through lunch breaks, weekends and/or Public Holidays) then PHC 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 PHC and the Client.
2.8 If PHC 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.
2.9 PHC will notify the Client’s electricity distributor/retailer of the installation. The electricity distributor/retailer may then require the replacement of the Client’s existing power meter, the cost of which shall be the Client’s responsibility and is not included in any pricing specified under this Contract.
2.10 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 PHC shall (for the duration of the Works) liaise directly with one (1) authorised representative, and that once introduced as such to PHC, 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 PHC for all additional costs incurred by PHC (including PHC’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 PHC 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 PHC 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 PHC in respect of the Works.
4.2 In the event 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 PHC; the Client shall not be entitled to treat this Contract as repudiated nor render it invalid.
5. Change in Control
5.1 The Client shall give PHC 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 PHC as a result of the Client’s failure to comply with this clause.
6. Price and Payment
6.1 At PHC’s sole discretion the Price shall be either:
a) as indicated on invoices provided by PHC to the Client in respect of Works performed or Materials supplied; or
b) PHC’s Price at the date of delivery of the Works according to PHC’s current pricelist; or
c) PHC’s quoted Price (subject to clause 6.2) which shall be binding upon PHC provided that the Client shall accept PHC’s quotation in writing within thirty (30) days.
6.2 PHC 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 the relevant currency exchange rates or increases to PHC in the cost of labour or materials which are beyond PHC’s control.
6.3 Variations will be charged for on the basis of PHC’s quotation, and will be detailed in writing, and shown as variations on PHC’s invoice. The Client shall be required to respond to any variation submitted by PHC within ten (10) working days. Failure to do so will entitle PHC 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 PHC’s sole discretion a non-refundable 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 PHC, which may be:
a) on completion of the Works and/or delivery of the Works and/ or Materials;
b) by way of progress payments in accordance with PHC’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;
c) 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;
d) the date specified on any invoice or other form as being the date for payment; or
e) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Client by PHC.
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 – sections 18(a) to 18(i) of the Construction Contracts Amendment Act 2015.
6.7 Payment may be made by cash, cheque, bank cheque, electronic/on-line banking, credit card (a surcharge may apply per transaction), or by any other method as agreed to between the Client and PHC.
6.8 PHC may in its discretion allocate any payment received from the Client towards any invoice that PHC determines and may do so at the time of receipt or at any time afterwards. On any default by the Client PHC may re-allocate any payments previously received and allocated. In the absence of any payment allocation by PHC, payment will be deemed to be allocated in such manner as preserves the maximum value of PHC’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 PHC nor to withhold payment of any invoice because part of that invoice is in dispute, unless the request for payment by PHC is a claim made under the Construction Contracts Act 2002.
6.10 Unless otherwise stated the Price does not include GST. In addition to the Price, the Client must pay to PHC an amount equal to any GST PHC must pay for any supply by PHC 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 PHC’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 PHC claims an extension of time (by giving the Client written notice) where completion is delayed by an event beyond PHC’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 PHC that the Worksite is ready.
7.3 At PHC’s sole discretion, the cost of delivery is either included in the Price or is in addition to the Price.
7.4 PHC 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.
7.5 Any time specified by PHC for delivery of the Works is an estimate only and PHC 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 PHC is unable to supply the Works as agreed solely due to any action or inaction of the Client, then PHC 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. Dimensions, Plans and Specifications
8.1 The Client acknowledges that:
a) all descriptive specifications, illustrations, drawings, data dimensions, and weights stated in PHC’s or manufacturer’s fact sheets, price lists or advertising material are indicative only and that they have not relied on such information;
b) while PHC may have provided information or figures to the Client regarding the performance of the Materials, the Client acknowledges that PHC has given these in good faith, and are estimates based on industry prescribed estimates; and
c) PHC 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, PHC accepts no responsibility for any loss, damages, or costs however resulting from these inaccurate plans, specifications or other information.
i) PHC is entitled to suspend or terminate the supply of Materials or Works to the Client if there is a material change to the scope of work as a result of inaccurate plans, specifications or other information; and
ii) the Client shall be liable for PHC’s costs of de-mobilisation or re-mobilisation of any plant, equipment or staff to or from the Worksite, upon the re-commencement of the Works at the Worksite, if applicable.
8.2 All customary building industry tolerances shall apply to the dimensions and measurements of the Works, unless PHC and the Client agree otherwise in writing.
8.3 Where the Client is to supply PHC with any design specifications (including, but not limited to CAD drawings) the Client shall be responsible for providing accurate data. PHC shall not be liable whatsoever for any errors in the Works that are caused by incorrect or inaccurate data being supplied by the Client.
8.4 In the event the Client gives information relating to measurements and quantities of Materials required in completing the Works, it is the Client’s responsibility to verify the accuracy of the measurements and quantities, before the Client or PHC places an order based on these measurements and quantities. PHC accepts no responsibility for any loss, damages, or costs however resulting from the Client’s failure to comply with this clause.
9.1 If PHC retains ownership of the Materials under clause 12 then:
a) where PHC 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 PHC’s address; or
ii) the Materials are delivered by PHC or PHC’s nominated carrier to the Client’s nominated delivery address (even if the Client is not present at the address).
where PHC is to both supply and install Materials then PHC 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.
9.2 Notwithstanding the provisions of clause 9.1 if the Client specifically requests PHC to leave Materials outside PHC’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.
9.3 The Client warrants that any structures to which the Materials are to be affixed are able to withstand the installation thereof and 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, unsafe structures etc) that PHC, or PHC’s employees, reasonably form the opinion that the Client’s premises is not safe for the Works to proceed then PHC shall be entitled to delay the provision of the Works (in accordance with the provisions of clause 7.2 above) until PHC is satisfied that it is safe for the installation to proceed. PHC 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.
9.4 Where PHC 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 PHC shall require the Client or their agent to authorise commencement of the Works in writing. PHC shall not be liable in any way whatsoever for any damages or losses that occur after any subsequent commencement of the Works.
9.5 The Client acknowledges and accepts:
a) where PHC has performed temporary repairs that:
i) PHC offers no guarantee against the reoccurrence of the initial fault, or any further damage caused; and
ii) PHC will immediately advise the Client of the fault and shall provide the Client with an estimate for the full repair required; and
b) PHC is only responsible for components that are replaced by PHC 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
c) under no circumstances, will PHC handle removal of asbestos product. In the event asbestos (or other hazardous material) is discovered on the Worksite:
i) PHC 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 PHC shall be added to the Price under clause 6.2; and
d) Materials supplied may:
i) exhibit variations in shade, colour, texture, surface and finish, and may fade or change colour over time. PHC 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
create undesirable smells caused by a system as a result of its normal operation.
9.6 PHC is not insured to remove furniture or fittings and will not do so, nor is PHC licensed to move electrical appliances.
9.7 PHC 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 PHC’s and/or the manufacturers’ recommendations.
9.8 The Client acknowledges and accepts that 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, PHC cannot give any guarantee against reoccurrence or further damage. In the event that the Client requests PHC to use drain/pipe unblocking equipment (including but not limited to, CCTV camera or an electric eel), and PHC does not recommend the use of such equipment due to the risk of the equipment becoming lodged or stuck, PHC 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.
9.9 PHC’s quotation for repairs to existing roofs shall be based only on the replacement of damaged roofing/cladding and/or any other roofing materials and shall not include the replacement of roofing/cladding and/or any other roofing materials with slight imperfections unless authorised by the Client prior to the commencement of the Works. If the Client requests the replacement of roofing/cladding and/or any other roofing materials that have slight imperfections but PHC does not deem to be defective or affect the integrity of the roof then this shall be a variation to the original quotation and clause 6.2 will apply.
9.10 The Client acknowledges and accepts that:
a) no persons other than those authorised or employed by PHC are to walk on the treated roof surface for a period of twenty-one (21) days after completion of the job and at no time are any persons permitted to be in the areas of the Works. PHC shall not be liable for any loss, damages, injuries, or costs however arising resulting from the Client’s failure to comply with this clause;
b) PHC accepts no liability for any subsequent loss or damage (including, but not limited to, internal water damage) to the Client’s property which may occur during the cleaning process where such loss or damage is due to pre-existing faults or leaks;
c) it is their responsibility to ensure that any uncompleted areas are kept watertight during construction if there is any delay in the Works due to circumstances beyond the control of PHC (including, but not limited to, waiting on another trade, materials, or weather conditions). PHC will accept no liability whatsoever for any damages caused as a result of the Client’s failure to comply with this clause; and
d) where an anodised surface finish has been selected, slight colour variation may occur between the main unit frame and any installation trims or drainage components used due to the difference in metal alloys available and manufacturing standards and tolerances shall not deemed to be a defect in the Materials.
9.11 In the event that the electrical wiring is required to be re-positioned at the request of any third party contracted by the Client then the Client agrees to notify PHC immediately upon any proposed changes. The Client agrees to indemnify PHC against any additional costs incurred with such a relocation of electrical wiring. All such variances shall be invoiced in accordance with clause 6.2.
9.12 It is agreed by the Client that upon the completion of the Works, that:
a) there will be a minimum of 50mm thick polystyrene board insulation installed on top of the DPC by the Client’s agent and/or third-party contractor. In the event that there is any subterranean water within ten (10) feet of the underside of the slab the insulation thickness should be a minimum of 60 mm;
b) there must be a minimum of 30mm of concrete poured on top of PHC’s tubing (16mm o.d); and
c) the walls and ceilings are insulated with a minimum equivalent of 100mm of fibreglass Batts.
Running costs will be reduced where the windows are insulated with full length curtains or drapes.
9.13Whilst the final location of the inverter and solar panels is at the discretion of the Client, a charge will apply as a variation as per clause 6.2, if the Client requests the inverter and/or panels to be installed in a different location other than that agreed upon by both parties.
9.14 The Client acknowledges and accepts that the mains power is required to be isolated in order for PHC to complete the final connection of the solar main switch, the Client agrees to indemnify PHC in respect of all and any liability claims, loss, damage, costs and fines if a power surge is to occur when the power is turned back on.
9.15 The Client acknowledges and accepts that:
a) the energy generation may be less than estimates due to factors out of PHC control (including, but not limited to, hours of sunlight, cloud cover, weather patterns, the location (geographical or otherwise) of the Works and the location of surrounding structures and flora; and
b) some buildings may not have the optimum orientation for the installation of the Materials or components, and therefore understands and accepts that the Materials performance may be compromised in such situations.
10. Client Responsibility
10.1 The Client acknowledges and agrees that it is the Client’s responsibility to:
a) ensure that a safety fence is erected around the perimeter of the Worksite to ensure public safety;
b) have all areas clean and clear to enable scheduled work to be completed in accordance with the schedule of installation;
c) ensure that the polystyrene and mesh is taken down;
d) ensure that the position for all walls, door entrances and concrete cuts are clearly marked prior to the commencement of the Works;
e) remove all existing floor coverings, tacks and staples;
f) fully disclose any information that may affect PHC’s installation procedures (including, but not limited to, disclosing known breaks or tears in the membrane, extensions of existing slabs, thickened beams, curing compounds that may have been used, or the use of concrete over 25mpa);
g) ensure the sub-floor is adequately ventilated and is structurally sound;
h) ensure that the levels of the sub-floor are satisfactory as the floor coverings can only follow the contours of the sub-floor and will not correct unevenness;
i) ensure that a concrete plinth is provided to PHC prior to the commencement of the Works, for any heat pump, with the appropriate dimensions;
j) remove all fragile items such as glassware, crockery, pot plants, furniture and ornaments. Breakages and damages are the responsibility of the Client. All care taken but no responsibility accepted by PHC in this regard; and
k) make the premises available on the agreed date and time. If installation is interrupted by the failure of the Client to adhere to the installation schedule agreed to between PHC and the Client, any additional costs will be invoiced to the Client as an extra.
10.2 The Client acknowledges and agrees that PHC shall:
a) only fit the control panel once the building is secure; and
b) require four (4) weeks’ notice in respect of any wall lings to enable PHC to manufacture and install the control panel. The Client is to allow one (1) full working day for every 150 square metres of heated floor area.
11.1 The Client shall ensure that PHC has clear and free access to the Worksite at all times to enable them to undertake the Works. PHC 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 PHC.
11.2 Worksite Inductions
a) in the event the Client requires an employee or sub-contractor of PHC 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 PHC’s standard (and/or overtime, if applicable) hourly labour rate; or
b) where PHC is in control of the Worksite, the Client and/or the Clients third party contractors must initially carry out PHC’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 PHC.
11.3 The Client acknowledges and agrees that it is the Client’s responsibility to ensure that a safety fence is erected around the perimeter of the Worksite to ensure public safety.
11.4 Where PHC requires that Materials, tools etc. required for the Works be stored at the Worksite, the Client shall supply PHC 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.
12. Underground Locations
12.1 Prior to PHC commencing any work the Client must advise PHC 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.
12.2 Whilst PHC will take all care to avoid damage to any underground services the Client agrees to indemnify PHC 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 12.1.
13.1 PHC shall have public liability insurance of at least five million dollars ($5m). It is the Client’s responsibility to ensure that they are similarly insured.
14. Compliance with Laws
14.1 The Client and PHC 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.
14.2 Both parties acknowledge and agree:
to comply with the Building Amendment Act 2013, in respect of all workmanship and building products to be supplied during the course of the Works; and
that Works will be provided in accordance with any current relevant Australian/New Zealand Standards applicable.
14.3 Where the Client has supplied products for PHC 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 PHC’s opinion, it is believed that the materials supplied are Non-Conforming products and will not conform with New Zealand regulations, then PHC 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.
14.4 The Client shall obtain (at the expense of the Client) all licenses and approvals that may be required for the Works.
14.5 PHC shall comply with the terms and conditions of all such consents and approvals in so far as such consents and approvals relate to the carrying out of the Works.
14.6 Prior to commencement of any Works PHC 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 PHC where necessary will have the gas supply capped-off until the fault is found and repaired at the Client’s expense.
14.7 The Client acknowledges and accepts that in instances where the gas supply is turned off at the meter or bottles by PHC 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.
14.8 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. PHC reserves the right to halt all Works (in accordance with the provisions of clause 7.2 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 PHC will charge a standard fee for the time spent on Worksite based on PHC’s quotation.
14.9 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.
14.10 If during the course of installation when the Works are being conducted within and around switchboards that if the same is found defective or deemed to be unsafe by PHC, then PHC shall notify the Client immediately. The power if isolated will not be re-energised until such time as the existing condition has been rectified and made safe in accordance to the Electrical Safety Regulations. The Client accepts and agrees that any costs associated with the rectification Works including any Materials and labour shall be to the Client’s account.
14.11 Any live Works or Works undertaken near live conductors where it is safe to do so shall be dealt with in accordance with New Zealand and Australian Wiring standards being “Safe working on Low Voltage Electrical Installations, relevant Statutory Acts and Work Place Regulations”. PHC’s live Works procedures are designed to eliminate risk of injury to PHC’s employees, damage to the Client’s installations and unexpected power disconnections. It may in some cases require disconnection and isolation of the installation to undertake such Works for which additional charges may be applicable. This shall be invoiced in accordance with clause 6.2.
14.12 Notwithstanding clause 14.1 and pursuant to the Health & Safety at Work Act 2015 (the “HSW Act”), PHC 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.
15.1 PHC and the Client agree that ownership of the Materials shall not pass until:
the Client has paid PHC all amounts owing to PHC; and
the Client has met all of its other obligations to PHC.
15.2 Receipt by PHC 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.
15.3 It is further agreed that:
a) until ownership of the Materials passes to the Client in accordance with clause 15.1 that the Client is only a bailee of the Materials and unless the Materials have become fixtures must return the Materials to PHC on request;
b) the Client holds the benefit of the Client’s insurance of the Materials on trust for PHC and must pay to PHC 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 PHC shall be sufficient evidence of PHC’s rights to receive the insurance proceeds direct from the insurer without the need for any person dealing with PHC 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 PHC and must pay or deliver the proceeds to PHC 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 PHC and must sell, dispose of or return the resulting product to PHC as it so directs;
f) unless the Materials have become fixtures the Client irrevocably authorises PHC to enter any premises where PHC believes the Materials are kept and recover possession of the Materials;
g) PHC 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 PHC; and
i) PHC may commence proceedings to recover the Price of the Materials sold notwithstanding that ownership of the Materials has not passed to the Client.
16. Personal Property Securities Act 1999 (“PPSA”)
16.1 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 and/or collateral (account) – being a monetary obligation of the Client to PHC for Works – that have previously been supplied and that will be supplied in the future by PHC to the Client.
16.2 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 PHC may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register;
b) indemnify, and upon demand reimburse, PHC for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register or releasing any Materials charged thereby;
c) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Materials and/or collateral (account) in favour of a third party without the prior written consent of PHC; and
d) immediately advise PHC 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.
16.3 PHC and the Client agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms and conditions.
16.4 The Client waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, and 131 of the PPSA.
16.5 Unless otherwise agreed to in writing by PHC, the Client waives its right to receive a verification statement in accordance with section 148 of the PPSA.
16.6 The Client shall unconditionally ratify any actions taken by PHC under clauses 16.1 to 16.5.
16.7 Subject to any express provisions to the contrary (including those contained in this clause 16), nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.
17. Security and Charge
17.1 In consideration of PHC 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, 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).
17.2 The Client indemnifies PHC from and against all PHC’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising PHC’s rights under this clause.
17.3 The Client irrevocably appoints PHC and each director of PHC as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 17 including, but not limited to, signing any document on the Client’s behalf.
18. Defects and Returns
18.1 The Client shall inspect the Materials on delivery and shall within seven (7) days of delivery (time being of the essence) notify PHC of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Client shall afford PHC 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 PHC has agreed in writing that the Client is entitled to reject, PHC’s liability is limited to either (at PHC’s discretion) replacing the Materials or repairing the Materials.
18.2 Returns will only be accepted provided that:
a) the Client has complied with the provisions of clause 18.1; and
b) PHC has agreed in writing to accept the return of the Materials; and
c) the Materials are returned at the Client’s cost within seven (7) days of the delivery date; and
d) PHC 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.
18.3 PHC may (in its discretion) accept the return of Materials for credit but this may incur a handling fee of fifteen percent (15%) of the value of the returned Materials plus any freight.
18.4 Returned Materials may (at PHC’s sole discretion), incur restocking and handling fees.
18.5 Subject to clause 18.1, non-stocklist items or Materials made to the Client’s specifications are under no circumstances acceptable for credit or return.
19.1 Subject to the conditions of warranty set out in clause 19.2 PHC warrants that if any defect in any workmanship of PHC becomes apparent and is reported to PHC within twelve (12) months of the date of delivery (time being of the essence) then PHC will either (at PHC’s sole discretion) replace or remedy the workmanship.
19.2 The conditions applicable to the warranty given by clause 19.1 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
ii) failure on the part of the Client to follow any instructions or guidelines provided by PHC; or
iii) any use of any Materials otherwise than for any application specified on a quote or order form; or
iv) the continued use of any Materials 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 PHC shall thereafter in no circumstances be liable under the terms of the warranty if the workmanship is repaired, altered or overhauled without PHC’s consent.
c) in respect of all claims PHC 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.
19.3 For Materials not manufactured by PHC, the warranty shall be the current warranty provided by the manufacturer of the Materials. PHC 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.
19.4 In the case of second hand Materials, the Client acknowledges that full opportunity to inspect the same has been provided and accepts the same with all faults and that no warranty is given by PHC as to the quality or suitability for any purpose and any implied warranty, statutory or otherwise, is expressly excluded. PHC shall not be responsible for any loss or damage to the Materials, or caused by the Materials, or any part thereof however arising.
20. Consumer Guarantees Act 1993
20.1 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 PHC to the Client.
21. Intellectual Property
21.1 Where PHC 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 PHC, and shall only be used by the Client at PHC’s discretion. Under no circumstances may such designs, drawings and documents be used without the express written approval of PHC.
21.2 The Client warrants that all designs, specifications or instructions given to PHC will not cause PHC to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify PHC against any action taken by a third party against PHC in respect of any such infringement.
21.3 The Client agrees that PHC may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings, plans or products which PHC has created for the Client.
22. Default and Consequences of Default
22.1 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 PHC’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
22.2 If the Client owes PHC any money the Client shall indemnify PHC from and against all costs and disbursements incurred by PHC in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, PHC’s collection agency costs, and bank dishonour fees).
22.3 Further to any other rights or remedies PHC may have under this Contract, if a Client has made payment to PHC, 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 PHC under this clause 22, 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.
22.4 Without prejudice to PHC’s other remedies at law PHC shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to PHC shall, whether or not due for payment, become immediately payable if:
a) any money payable to PHC becomes overdue, or in PHC’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 PHC;
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.
23. Suspension of Works
23.1 Where the Contract is subject to section 24A of the Construction Contracts Amendment Act 2015, the Client hereby expressly acknowledges that:
a) PHC 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 PHC by a particular date; and
iv) PHC has given written notice to the Client of its intention to suspend the carrying out of construction work under the construction Contract.
b) if PHC 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 PHC exercises the right to suspend work, the exercise of that right does not:
i) affect any rights that would otherwise have been available to PHC 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 PHC suspending work under this provision;
d) due to any act or omission by the Client, the Client effectively precludes PHC from continuing the Works or performing or complying with PHC’s obligations under this Contract, then without prejudice to PHC’s other rights and remedies, PHC 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 PHC as a result of such suspension and recommencement shall be payable by the Client as if they were a variation.
23.2 If pursuant to any right conferred by this Contract, PHC suspends the Works and the default that led to that suspension continues un-remedied subject to clause 24.1 for at least ten (10) working days, PHC shall be entitled to terminate the Contract, in accordance with clause 24.
24.1Without prejudice to any other rights or remedies PHC 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 PHC may suspend or terminate the supply of the Works. PHC will not be liable to the Client for any loss or damage the Client suffers because PHC has exercised its rights under this clause.
24.2 PHC 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 PHC shall repay to the Client any sums paid in respect of the Price, less any amounts owing by the Client to PHC for Works already performed. PHC shall not be liable for any loss or damage whatsoever arising from such cancellation.
24.3 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 PHC as a direct result of the cancellation (including, but not limited to, any loss of profits).
24.4 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.
25.1 All emails, documents, images or other recorded information held or used by PHC is Personal Information as defined and referred to in clause 25.3 and therefore considered confidential. PHC acknowledges its obligation in relation to the handling, use, disclosure and processing of Personal Information pursuant to the Privacy Act 1993 (“the Act”) including Part II of the OECD Guidelines and as set out in Schedule 5A of the Act and any statutory requirements where relevant in a European Economic Area “EEA” under the EU Data Privacy Laws (including the General Data Protection Regulation “GDPR”) (collectively, “EU Data Privacy Laws”). PHC acknowledges that in the event it becomes aware of any data breaches and/or disclosure of the Client’s Personal Information, held by PHC that may result in serious harm to the Client, PHC will notify the Client in accordance with the Act and/or the GDPR. Any release of such Personal Information must be in accordance with the Act and the GDPR (where relevant) and must be approved by the Client by written consent, unless subject to an operation of law.
25.2 Notwithstanding clause 25.1, privacy limitations will extend to PHC in respect of Cookies where the Client utilises PHC’s website to make enquiries. PHC 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 PHC when PHC sends an email to the Client, so PHC may collect and review that information (“collectively Personal Information”)
25.3 The Client authorises PHC or PHC’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 PHC from the Client directly or obtained by PHC 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.
25.4 Where the Client is an individual the authorities under clause 25.3 are authorities or consents for the purposes of the Privacy Act 1993.
25.5 The Client shall have the right to request (by e-mail) from PHC, a copy of the Personal Information about the Client retained by PHC and the right to request that PHC correct any incorrect Personal Information.
25.6 PHC 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.
25.7 The Client can make a privacy complaint by contacting PHC via e-mail. PHC 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 Information Commissioner at http://www.privacy.org.nz/comply/comptop.html.
26. Service of Notices
26.1 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.
26.2 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.
27.1 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 (“Trust”) then whether or not PHC may have notice of the Trust, the Client covenants with PHC as follows:
a) the Contract extends to all rights of indemnity which the Client now or subsequently may have against the Trust and the trust fund;
b) the Client has full and complete power and authority under the Trust to enter into the Contract and the provisions of the Trust do not purport to exclude or take away the right of indemnity of the Client against the Trust 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 without consent in writing of PHC (PHC 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 property.
28.1 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).
28.2 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.
28.3 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 Dargaville Courts of New Zealand.
28.4 Except to the extent permitted by law “CGA”, PHC 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 PHC of these terms and conditions (alternatively PHC’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Works).
28.5 PHC may licence and/or assign all or any part of its rights and/or obligations under this Contract without the Client’s consent.
28.6 The Client cannot licence or assign without the written approval of PHC.
28.7 PHC 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 PHC’s sub-contractors without the authority of PHC.
28.8 The Client agrees that PHC 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 PHC to provide Works to the Client.
28.9 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.
28.10 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.