| 1. |
Application of Terms |
| 1.1 |
These terms apply to all contracts for the supply of services
(Services) by CCL to the client from time to time. |
| 1.2 |
The client acknowledges that these terms apply to the exclusion
of any other terms or conditions of trade of the client. No
modifications, alterations or additions of these terms of contract
shall form any part of the contract between CCL and the client
unless expressly accepted by CCL in writing. |
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| 2. |
Tenders, Quotes and Estimates |
| 2.1 |
Unless otherwise agreed in writing, any tender, quotation
or estimate from CCL is valid for a period of 1 calendar month
only from the date of issue, provided that CCL has not previously
withdrawn it by written notice to the client. |
| 2.2 |
Any tender, quotation or estimate is based on the instructions
and the information provided by the client. CCL reserves the
right to amend any tender, quotation or estimate to cover any
increase in cost which may arise as a result of additional instructions
or information or as a result of any error or variation in the
instructions or information provided by the client. |
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| 3. |
Price |
| 3.1 |
Unless expressly stated otherwise, all prices are in New
Zealand dollars and exclusive of goods and services tax (GST),
and any other governmental duty or tax which is applicable and
which shall be charged in addition at the rate and in the manner
prescribed by law from time to time. |
| 3.2 |
CCL reserves the right to amend the price to take account
for any variations in the Services as a result of additional
information or a request by the client. |
| 3.3 |
If any unforeseen problems or expenditure arise in the course
of carrying out any of the Services, CCL shall be entitled to
make additional charges to cover additional time and cost necessarily
incurred to complete this Service. |
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| 4. |
Payment |
| 4.1 |
The client will pay the price for the Services (without deduction
or setoff) to CCL not later than 30 days after the invoice date
for the Services or within such period as may have been agreed
in writing by CCL (Due Date). |
| 4.2 |
If payment is not received on the Due Date, CCL may charge
interest at a rate of 7% per annum above the Official Cash Rate
of the Reserve Bank of New Zealand applicable during the period
of non-payment (calculated on a daily basis) on all amounts
outstanding from the Due Date to the date CCL received payment. |
| 4.3 |
The client shall not be entitled to retain or defer payment
of any sums to CCL on account of any dispute, cross claim or
set-off which it may allege against CCL. |
| 4.4 |
In the event of any suspension of payment, arrangement with
creditors, bankruptcy, insolvency, receivership or cessation
of business by the client, the CCL shall be entitled to suspend
or terminate all future performance of its Services forthwith
and without liability. |
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| 5. |
Timing |
| 5.1 |
The times or dates named or accepted by CCL for the supply
of Services are given in good faith but are an estimate only. |
| 5.2 |
CCL will endeavour to carry out the Services within the agreed
time, and if no time is agreed, within a reasonable time. CCL
is not liable for any loss (including without limitation indirect
or consequential losses), damage (including without limitation
liquidated damages), expense or injury resulting from delay
in completion of the Services. |
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| 6. |
Reports |
| 6.1 |
Any reports or certificates on products/goods inspected by
CCL only relate to those particular products/goods actually
inspected by CCL. Such reports and/or certificates do not extend
to other products/goods which have not been inspected by CCL.
CCL shall only be required to adopt standard industry recommended
procedures when performing inspections, and preparing reports/certificates
for the client. The client must specify in writing to CCL if
it requires CCL to use procedures that are additional or different
to standard industry recommended procedures. |
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| 7. |
Testing |
| 7.1 |
If the Services accepted by CCL necessitate the analysis
of a sample by CCL or any third party, CCL provides the results
of the analysis to the client strictly on the basis that is
not responsible for accuracy of the analysis. The client acknowledges
that CCL has no obligation to verify or confirm the accuracy
of a sample analysis and that CCL is not responsible for the
accuracy of any analysis or results. |
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| 8. |
Client's Obligations |
| 8.1 |
The client must: (a) ensure that the instructions to CCL
and sufficient information are given in due time to enable the
required Services to be performed effectively; (b) procure all
necessary access for CCL's representatives to enable the required
Services to be performed effectively; (c) ensure that all necessary
measures are taken for safety and security of working conditions,
sites, and installations during the performance of Services
and will not rely in this respect on CCL's advice whether requested
or not; (d) take all necessary steps to eliminate or remedy
any obstruction to or interruptions in the performance of the
required Services; and (e) inform CCL in advance of any known
hazards or dangers, actual or potential, associated with any
order or samples or testing including for example, presence
or risk of radiation, toxic or noxious or explosive elements
or materials, environmental pollution or poison. |
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| 9. |
Default/Termination |
| 9.1 |
Without prejudice to CCL's rights or remedies under these
terms or at law, CCL may immediately terminate any and all contracts
and cease to provide Services if the client: (a) fails to pay
any amount owing to CCL under any contract; (b) fails to comply
with the terms of any contract between CCL and the client, where
that failure is not remedied to CCL's satisfaction within 5
days after CCL notifies the client of such non compliance; (c)
an event occurs which in CCL's opinion might affect the client's
ability to meet its obligations under its contract with CCL
including (without limitation) if the client: (i) fails to pay
its debts when due; (ii) ceases or threatens to cease to carry
on its business or a receiver or administrator is appointed
over its assets or any step is taken for its liquidation; or
(iii) becomes insolvent or commits an act of bankruptcy. Upon
termination of CCL's contract with the client, the client shall
pay all amounts owing under all contracts with CCL upon demand. |
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| 10. |
Liability |
| 10.1 |
Except to the extent that CCL is proven to be negligent (for
which CCL's liability is limited under these terms), CCL (including
its agents and representatives) is not liable whether in contract
or tort or otherwise for any loss or damage suffered or incurred
by the client or any other person due to any action or omission
by CCL (including its agents and representatives). |
| 10.2 |
If CCL is found liable for any reason (including without
limitation for negligence), the liability of CCL in respect
of any claim, loss, damage or expense of whatsoever nature and
howsoever arising will in no circumstance exceed the total aggregate
sum equal to 10 times the fee payable (excluding GST and costs)
for the specific Service to which the claim relates and which
Service specifically gives rise to the claim. Where the fee
or commission payable relates to a number of services and a
claim arises in respect of one of those services, a fee or commission
shall be apportioned for the purposes of this term by reference
to the estimated time involved in the performance of each service. |
| 10.3 |
CCL will not in any circumstances whatsoever be liable for
any claims of indirect or consequential loss, including (without
limitation) loss of profit, future business, loss of production
and cancellation of contracts entered into by the client. |
| 10.4 |
Notwithstanding anything to the contrary, CCL shall be discharged
from all liability (including negligence) to the client for
all claims unless a claim is notified to CCL within 2 months:
(a) after the date of the performance by CCL of the service
relating to the claim; or (b) in the event of an alleged non-performance,
within 2 months of the date when such service should have been
completed. |
| 10.5 |
All warranties, descriptions, representations or conditions,
whether implied by law, trade, custom or otherwise, are expressly
excluded to the fullest extent permitted by law. |
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| 11. |
Indemnity and Costs |
| 11.1 |
The client irrevocably indemnifies CCL from and against all
loss, costs, damages, expenses (including all legal costs and
expenses incurred on a solicitor/own client basis) CCL incurs
and all claims, demands and other proceedings brought by any
person against CCL, arising from (a) the client's failure to
comply with the terms of any contract with CCL or with any legislation,
regulation or bylaw; or (b) any act, omission or negligence
committed by the client or by any person for whom the client
is responsible. |
| 11.2 |
The client will pay all CCL's costs and expenses (including
legal costs and expenses incurred on a solicitor/own client
basis) incurred in the enforcement of CCL's rights or remedies
under these terms. |
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| 12. |
Health and Safety |
| 12.1 |
The client shall be responsible to ensure that all appropriate
safety measures and legislation are observed when the Services
are provided by CCL. |
| 12.2 |
Where the client knows or suspects that any substance, equipment,
containment vessel or procedure it is providing, making available
or requesting may give rise to a hazard of an unusual nature,
the client will make CCL aware in writing of the nature of that
hazard before arranging for the delivery (or collection) of
material to CCL or before exposing any CCL employee, agent or
subcontractor to the materials. CCL shall rely on the supply
of such information from the client in order to satisfy its
obligations under relevant health and safety requirements. |
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| 13. |
Force Majeure |
| 13.1 |
If the supply of Services by CCL is prevented or hindered
by reason of any cause beyond CCL's control, which for the avoidance
of doubt and without prejudice to the generality of the foregoing,
shall include government action, war, riot, civil commotion,
fire, flood, epidemic, labour disputes, strikes or lock-outs,
shortage of labour, materials or utilities or delays by subcontractors,
restraints or delays affecting shipping or carriers, currency
restrictions and acts of God, CCL may suspend the performance
or cancel the contract of a Service immediately by notice in
writing to the client so far as it relates to the Services not
then supplied or work not then done. Such suspension or cancellation
shall not give rise to any claims by the client. The client
shall remain liable to pay for the Services performed prior
to the date of such suspension or cancellation. |
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| 14. |
Jurisdiction |
| 14.1 |
This contract is governed by New Zealand law and is to be
construed in all respects as a New Zealand contract. The client
submits to the non-exclusive jurisdiction of the courts of New
Zealand. All disputes will be heard in Auckland, New Zealand. |
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| 15. |
General |
| 15.1 |
Any illegality, invalidity or unenforceability of any clause
or part of these terms shall not affect the legality, validity
or enforceability of the remainder. If any such clause or part
is found by any competent court or authority to be illegal,
invalid or unenforceable, the parties agree that they shall
substitute provisions in a form as similar to the relevant provision
as is possible without rendering such terms illegal, invalid
or unenforceable. |
| 15.2 |
If there is any ambiguity or inconsistency in the interpretation
or application of these terms such ambiguity or inconsistency
is to be interpreted in favour of CCL, irrespective of whether
CCL is relying on the term in question. |
| 15.3 |
CCL may delegate or subcontract any part of the Services. |
| 15.4 |
Unless otherwise expressly agreed by CCL in writing, these
terms constitute the entire agreement between CCL and the client
for the supply of the contract works. |
| 15.5 |
Every officer, employee, agent and subcontractor of CCL shall
have the benefit of any exclusion or limitation of liability
under these terms and the benefit of any indemnity contained
in these terms. |
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