- 1. Definitions
1.1 “Hepburn” means Hepburn Electrical Ltd, its successors and assigns or any person acting on behalf of and with the authority of Hepburn Electrical Ltd.
1.2 “Customer” means the person/s ordering the Works as specified in any invoice, document or order, and if there is more than one Customer is a reference to each Customer jointly and severally.
1.3 “Works” means all Works or Materials supplied by Hepburn to the Customer at the Customer’s request from time to time (where the context so permits the terms ‘Works’ or ‘Materials’ shall be interchangeable for the other).
1.4 “Call-Out Fee” shall mean all costs (including, but not limited to, admin fee, labour hourly rates, travel and Materials) incurred by Hepburn to attend emergency after hours Works.
1.5 “Price” means the Price payable for the Works as agreed between Hepburn and the Customer in accordance with clause 5 below.
2.1 The Customer is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Customer places an order for or accepts delivery of any Works.
2.2 These terms and conditions may only be amended with Hepburn’s consent in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the Customer and Hepburn.
2.3 The Customer acknowledges and agrees that Hepburn is unable to foresee any impending damage that could occur to the Works supplied (including but not limited to, sulphur, volcanic ash and/or other chemicals that maybe present in thermally active areas). Hepburn shall not be held liable for any loss, damages or costs howsoever arising from Hepburn not foreseeing the same.
2.4 The Customer acknowledges and agrees that in the event that the Customer requests Hepburn to make a Call-Out to carry out Works, then Hepburn reserves the right to charge a minimum Call-Out Fee of sixty dollars ($60.00), Hepburn’s hourly labour rate (penalty rates may apply for weekends and/or Public Holidays, unless otherwise agreed between Hepburn and the Customer), travel and Materials,.
3. Authorised Representatives
3.1 Unless otherwise limited as per clause 3.2 the Customer agrees that should the Customer introduce any third party to Hepburn’s as the Customer’s duly authorised representative, that once introduced that person shall have the full authority of the Customer to order any materials or Works on the Customer’s behalf and/or to request any variation to the works on the Customer’s behalf (such authority to continue until all requested works have been completed or the Customer otherwise notifies Hepburn’s in writing that said person is no longer the Customer’s duly authorised representative).
3.2 In the event that the Customer’s duly authorised representative as per clause 3.1 is to have only limited authority to act on the Customer’s behalf then the Customer must specifically and clearly advise Hepburn’s in writing of the parameters of the limited authority granted to their representative.
3.3 The Customer specifically acknowledges and accepts that they will be solely liable to Hepburn’s for all additional costs incurred by Hepburn’s (including Hepburn’s profit margin) in providing any works, materials, Works or variation/s requested by the Customer’s duly authorised representative (subject always to the limitations imposed under clause 3.2 (if any)).
4. Change in Control
4.1 The Customer shall give Hepburn not less than fourteen (14) days prior written notice of any proposed change of ownership of the Customer and/or any other change in the Customer’s details (including but not limited to, changes in the Customer’s name, address, contact phone or fax number/s, or business practice). The Customer shall be liable for any loss incurred by Hepburn as a result of the Customer’s failure to comply with this clause.
5. Price and Payment
5.1 At Hepburn’s sole discretion the Price shall be either:
(a) as indicated on invoices provided by Hepburn to the Customer in respect of Works performed or Materials supplied; or
(b) Hepburn’s Price at the date of delivery of the Works according to Hepburn’s current pricelist; or
(c) Hepburn’s quoted Price (subject to clause 5.2) which shall be binding upon Hepburn provided that the Customer shall accept Hepburn’s quotation in writing within thirty (30) days.
5.2 Hepburn reserves the right to change the Price:
(a) if a variation to the Materials which are to 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 latent conditions with the discovery of hidden or unidentifiable difficulties (including, but not limited to, accessing the site because of hard rock barriers below the surface or iron reinforcing rods in concrete, safety considerations, discovery of asbestos, hidden pipes and wiring in walls etc) which are only discovered on commencement of the Works) which are only discovered on commencement of the Works; or
(d) in the event of increases to Hepburn in the cost of labour or Materials (including but not limited to overseas transactions that may increase as a consequence of variations in foreign currency rates of exchange, international freight and insurance charges and/or the variation in Price for metals such as copper cable at the date of award of contract or the effects of changes to wage rates due to industry awards) which are beyond Hepburn’s control.
5.3 At Hepburn’s sole discretion a non-refundable deposit may be required.
5.4 Time for payment for the Works being of the essence, the Price will be payable by the Customer on the date/s determined by Hepburn, which may be:
(a) on completion of the Works; or
(b) by way of progress payments in accordance with Hepburn’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 Customer’s, due twenty (20) days following the end of the month in which a statement is posted to the Customer’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 Customer by Hepburn.
5.5 Payment may be made by cash, cheque, bank cheque, electronic/on-line banking, or by any other method as agreed to between the Customer and Hepburn.
5.6 Unless otherwise stated the Price does not include GST. In addition to the Price the Customer must pay to Hepburn an amount equal to any GST Hepburn must pay for any supply by Hepburn under this or any other agreement for the sale of the Materials. The Customer must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Customer pays the Price. In addition the Customer 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.
6. Delivery of the Works
6.1 Subject to clause 6.2 it is Hepburn’s responsibility to ensure that the Works start as soon as it is reasonably possible.
6.2 The Works commencement date will be put back and the completion date extended by whatever time is reasonable in the event that Hepburn claims an extension of time (by giving the Customer written notice) where completion is delayed by an event beyond Hepburn’s control, including but not limited to any failure by the Customer to:
(a) make a selection; or
(b) have the site ready for the Works; or
(c) notify Hepburn that the site is ready;
(d) where the Works are delayed by either the Customer or any other third party.
6.3 Subject to clause 6.2 it is Hepburn’s responsibility to ensure that the Works start as soon as it is reasonably possible.
6.4 Call-Out Fee shall mean all costs (including, but not limited to, hourly rates) incurred by Hepburn’s due to:
(a) Hepburn’s not being able to access the worksite at the prescribed time; or
(b) the Customer failing to notify Hepburn’s before 3pm on the day before the installation of a request to change the time or date of the installation.
6.5 Hepburn 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.
6.6 Any time or date given by Hepburn to the Customer is an estimate only. Hepburn shall not be liable for any loss or damage whatsoever due to failure by Hepburn to deliver the Works (or any part of them) promptly or at all, where due to circumstances beyond the reasonable control of Hepburn.
7.1 Risk of damage to or loss of the Materials passes to the Customer on Delivery and the Customer must insure the Materials on or before Delivery.
7.2 If any of the Materials are damaged or destroyed following delivery but prior to ownership passing to the Customer, Hepburn is entitled to receive all insurance proceeds payable for the Materials. The production of these terms and conditions by Hepburn is sufficient evidence of Hepburn’s rights to receive the insurance proceeds without the need for any person dealing with Hepburn to make further enquiries.
7.3 If the Customer requests Hepburn to leave Materials outside Hepburn’s premises for collection or to deliver the Materials to an unattended location then such Materials shall be left at the Customer’s sole risk.
7.4 Where the Customer or any third party has supplied materials for Hepburn to complete the Works, the Customer acknowledges that he accepts responsibility for the suitability of purpose, quality and any faults inherent in the Materials. Hepburn shall not be responsible for any defects in the works, any loss or damage to the Materials (or any part thereof), howsoever arising from the use of Materials supplied by the Customer or any third party.
7.5 The Customer accepts and acknowledges that Hepburn shall not accept any responsibility for any damage that may arise during the installation of light switches in the event that any third party contractor employed by the Customer has removed any or all reference to the positioning of light switches by either gibing or plastering the designated area. The Customer accepts that installation of light switches will then be at the sole discretion of Hepburn. If the Customer believes that they have any claim in relation to Works undertaken by that third party then said claim must be made against the third party contractor in the first instance.
8.1 The Customer warrants that any structures to which the Materials are to be affixed are able to withstand the installation of the Materials and that any electrical connections (including, but not limited to, meter boxes, main switches, circuit breakers, and electrical cable) are of suitable capacity to handle the Materials once installed. If for any reason (including the discovery of asbestos, defective or unsafe wiring or dangerous access to roofing) that Hepburn, its employees or Hepburn’s reasonably form the opinion that the Customer’s premises is not safe for the installation of Materials to proceed then Hepburn shall be entitled to delay installation of the Materials (in accordance with the provisions of clause 6.2 above) until Hepburn is satisfied that it is safe for the installation to proceed.
9. Air Conditioning Risk
9.1 Whilst the final location of the condensing unit is at the discretion of the Customer, a charge will apply as a variation as per clause 4.2, if the Customer requests the unit to not be located adjacent to the external wall, due to the underground piping required.
9.2 The final location of the wall, window or floor unit must be determined on site by the Customer.
9.3 The Customer acknowledges and agrees that Hepburn does not guarantee any noise levels (external or internal) and Hepburn shall not be held liable for any loss, damages, or costs, however resulting from noise levels.
9.4 In the event that any of the equipment needs to be relocated due to complaints from neighbours or local authorities, then the Customer shall be responsible for any and all costs involved.
9.5 The Customer acknowledges and agrees that it is their responsibility to insure any equipment partly or completely installed on site, against theft or damage.
9.6 In the event that the electrical wiring is required to be re-positioned at the request of any third party contracted by the Customer then the Customer agrees to notify Hepburn immediately upon any proposed changes. The Customer agrees to indemnify Hepburn against any additional costs incurred with such a relocation of electrical wiring. All such variances shall be invoiced in accordance with clause 4.2.
9.7 The Customer accepts and acknowledges that Hepburn is under no circumstances liable for any damages or loss incurred by the Customer as a result of pests, insects or rodents entering the air conditioning unit.
10. Customer’s Responsibilities
10.1 The Customer acknowledges that in the event asbestos or any other toxic substances are discovered at the Worksite that it is their responsibility to ensure the safe removal of the same. The Customer further agrees to indemnify Hepburn against any costs incurred by Hepburn as a consequence of such discovery. Under no circumstances will Hepburn handle removal of asbestos product.
10.2 The Customer acknowledges that it is their responsibility to ensure that all Materials, plant or equipment which Hepburn is required to install (or to connect any of its Materials to) are of the correct type, size, rating, standard, quality, colour and finish, conform with all relevant Australian and New Zealand Wiring standards and local statutory requirements, and are as specified in the specifications, drawings and plans upon which Hepburn based the quotation on and therefore, the Customer agrees to indemnify Hepburn against any costs incurred by Hepburn in rectifying such errors if required.
10.3 Hepburn is not responsible for the removal of rubbish from or clean-up of the building/constructions site/s. This is the responsibility of the Customer or the Customer’s agent.
11. Accuracy of Customers Plans
11.1 Hepburn’s shall be entitled to rely on the accuracy of any plans, specifications and other information provided by the Customer. The Customer acknowledges and agrees that in the event that any of this information provided by the Customer is inaccurate, Hepburn accepts no responsibility for any loss, damages, or costs however resulting from these inaccurate plans, specifications or other information.
12.1 The Customer shall ensure that Hepburn has clear and free access to the work site at all times to enable them to undertake the works. Hepburn shall not be liable for any loss or damage to the site (including, without limitation, damage to pathways, driveways and concreted or paved or grassed areas) unless due to the negligence of Hepburn.
12.2 The Customer accepts and acknowledges that unless specified in writing all scaffolding costs are in addition to the quoted Price wherever Hepburn’s legally requires scaffolding to complete the Works.
13. Underground Locations
13.1 Prior to Hepburn commencing any work the Customer must advise Hepburn of the precise location of all underground services on the site and clearly mark the same. The underground mains & services the Customer 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 site.
13.2 Whilst Hepburn will take all care to avoid damage to any underground services the Customer agrees to indemnify Hepburn 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 13.1.
14.1 Hepburn and the Customer agree that ownership of the Materials shall not pass until:
(a) the Customer has paid Hepburn all amounts owing to Hepburn; and
(b) the Customer has met all of its other obligations to Hepburn.
14.2 Receipt by Hepburn 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.
14.3 It is further agreed that:
(a) until ownership of the Materials passes to the Customer in accordance with clause 14.1 that the Customer is only a bailee of the Materials and unless the Materials have become fixtures must return the Materials to Hepburn on request.
(b) the Customer holds the benefit of the Customer’s insurance of the Materials on trust for Hepburn and must pay to Hepburn 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 Hepburn shall be sufficient evidence of Hepburn’s rights to receive the insurance proceeds direct from the insurer without the need for any person dealing with Hepburn to make further enquiries.
(d) the Customer 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 Customer sells, disposes or parts with possession of the Materials then the Customer must hold the proceeds of any such act on trust for Hepburn and must pay or deliver the proceeds to Hepburn on demand.
(e) the Customer should not convert or process the Materials or intermix them with other Materials but if the Customer does so then the Customer holds the resulting product on trust for the benefit of Hepburn and must sell, dispose of or return the resulting product to Hepburn as it so directs.
(f) unless the Materials have become fixtures the Customer irrevocably authorises Hepburn to enter any premises where Hepburn believes the Materials are kept and recover possession of the Materials.
(g) Hepburn may recover possession of any Materials in transit whether or not delivery has occurred.
(h) the Customer 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 Hepburn.
(i) Hepburn may commence proceedings to recover the Price of the Materials sold notwithstanding that ownership of the Materials has not passed to the Customer.
15. Personal Property Securities Act 1999 (“PPSA”)
15.1 Upon assenting to these terms and conditions in writing the Customer 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 previously supplied by Hepburn to the Customer (if any) and all Materials that will be supplied in the future by Hepburn to the Customer.
15.2 The Customer 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 Hepburn may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register;
(b) indemnify, and upon demand reimburse, Hepburn 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 a financing change statement or a change demand without the prior written consent of Hepburn; and
(d) immediately advise Hepburn 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.
15.3 Hepburn and the Customer agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms and conditions.
15.4 The Customer waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA.
15.5 Unless otherwise agreed to in writing by Hepburn, the Customer waives its right to receive a verification statement in accordance with section 148 of the PPSA.
15.6 The Customer shall unconditionally ratify any actions taken by Hepburn under clauses 15.1 to 15.5.
16. Security and Charge
16.1 In consideration of Hepburn agreeing to supply the Materials, the Customer 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 Customer either now or in the future, to secure the performance by the Customer of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
16.2 The Customer indemnifies Hepburn from and against all Hepburn’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising Hepburn’s rights under this clause.
16.3 The Customer irrevocably appoints Hepburn and each director of Hepburn as the Customer’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 16 including, but not limited to, signing any document on the Customer’s behalf.
17. Customer’s Disclaimer
17.1 The Customer hereby disclaims any right to rescind, or cancel any contract with Hepburn or to sue for damages or to claim restitution arising out of any inadvertent misrepresentation made to the Customer by Hepburn and the Customer acknowledges that the Works are bought relying solely upon the Customer’s skill and judgment.
18. Defects In Materials
18.1 The Customer shall inspect the Materials on delivery and shall within seven (7) days of delivery (time being of the essence) notify Hepburn of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Customer shall afford Hepburn an opportunity to inspect the Materials within a reasonable time following delivery if the Customer believes the Materials are defective in any way. If the Customer shall fail to comply with these provisions the Materials shall be presumed to be free from any defect or damage. For defective Materials, which Hepburn has agreed in writing that the Customer is entitled to reject, Hepburn’s liability is limited to either (at Hepburn’s discretion) replacing the Materials or repairing the Materials.
18.2 Materials will not be accepted for return other than in accordance with 18.1 above.
19.1 Non-stocklist items or Materials made to the Customer’s specifications are under no circumstances acceptable for credit or return.
20.1 Subject to the conditions of warranty set out in clause 20.2 Hepburn warrants that if any defect in any workmanship of Hepburn becomes apparent and is reported to Hepburn within twelve (12) months of the date of delivery (time being of the essence) then Hepburn will either (at Hepburn’s sole discretion) replace or remedy the workmanship.
20.2 The conditions applicable to the warranty given by clause 20.1 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 Customer to properly maintain any Materials; or
(ii) failure on the part of the Customer to follow any instructions or guidelines provided by Hepburn; 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 Hepburn shall thereafter in no circumstances be liable under the terms of the warranty if the workmanship is repaired, altered or overhauled without Hepburn’s consent.
(c) in respect of all claims Hepburn shall not be liable to compensate the Customer for any delay in either replacing or remedying the workmanship or in properly assessing the Customer’s claim.
20.3 For Materials not manufactured by Hepburn, the warranty shall be the current warranty provided by the manufacturer of the Materials. Hepburn 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.
20.4 In the case of second hand Materials, the Customer acknowledges that he has had full opportunity to inspect the same and that he accepts the same with all faults and that no warranty is given by Hepburn as to the quality or suitability for any purpose and any implied warranty, statutory or otherwise, is expressly excluded. Hepburn shall not be responsible for any loss or damage to the Materials, or caused by the Materials, or any part thereof however arising.
21. Consumer Guarantees Act 1993
21.1 If the Customer is acquiring Materials for the purposes of a trade or business, the Customer acknowledges that the provisions of the Consumer Guarantees Act 1993 do not apply to the supply of Materials by Hepburn to the Customer.
22. Intellectual Property
22.1 Where Hepburn has designed, drawn, written plans or a schedule of Works, or created any products for the Customer, then the copyright in all such designs, drawings, documents, plans, schedules and products shall remain vested in Hepburn, and shall only be used by the Customer at Hepburn’s discretion.
22.2 The Customer warrants that all designs, specifications or instructions given to Hepburn will not cause Hepburn to infringe any patent, registered design or trademark in the execution of the Customer’s order and the Customer agrees to indemnify Hepburn against any action taken by a third party against Hepburn in respect of any such infringement.
22.3 The Customer agrees that Hepburn may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings, plans or products which Hepburn has created for the Customer.
23. Default and Consequences of Default
23.1 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 Hepburn’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
23.2 If the Customer owes Hepburn any money the Customer shall indemnify Hepburn from and against all costs and disbursements incurred by Hepburn in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, Hepburn’s collection agency costs, and bank dishonour fees).
23.3 Without prejudice to any other remedies Hepburn may have, if at any time the Customer is in breach of any obligation (including those relating to payment) under these terms and conditions Hepburn may suspend or terminate the supply of Works to the Customer. Hepburn will not be liable to the Customer for any loss or damage the Customer suffers because Hepburn has exercised its rights under this clause.
23.4 Without prejudice to Hepburn’s other remedies at law Hepburn shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to Hepburn shall, whether or not due for payment, become immediately payable if:
(a) any money payable to Hepburn becomes overdue, or in Hepburn’s opinion the Customer will be unable to make a payment when it falls due;
(b) the Customer 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
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer.
24. Dispute Resolution
24.1 All disputes and differences between the Customer and Hepburn’s touching and concerning this agreement shall be referred to arbitration under a single arbitrator agreed upon by both parties, or failing agreement, by two arbitrators (one to be appointed by each party) and their umpire (appointed by them prior to arbitration), such arbitration to be carried out in accordance with provisions of the Arbitration Act 1996.
25. Compliance with Laws
25.1 Both the Customer and Hepburn agree that they will at all times ensure that they 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 occupational health and safety laws relating to building/construction sites, and any other relevant safety standards or legislation, particularly those in relation to Asbestos/Hazardous materials and the safe removal and disposal of the same.
25.2 The Customer shall obtain (at the expense of the Customer) all licenses and approvals that may be required for the works.
25.3 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 2002 and all subsequent Amendments. All of the cabling work will comply with the Australian and New Zealand Wiring standards.
26.1 Hepburn 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 Customer. On giving such notice Hepburn shall repay to the Customer any sums paid in respect of the Price, less any amounts owing by the Customer to Hepburn for Works already performed. Hepburn shall not be liable for any loss or damage whatsoever arising from such cancellation.
26.2 In the event that the Customer cancels the delivery of Works the Customer shall be liable for any and all loss incurred (whether direct or indirect) by Hepburn as a direct result of the cancellation (including, but not limited to, any loss of profits).
26.3 Cancellation of orders for products made to the Customer’s specifications, or for non-stocklist items, will definitely not be accepted once production has commenced, or an order has been placed.
27. Privacy Act 1993
27.1 The Customer authorises Hepburn or Hepburn’s agent to:
(a) access, collect, retain and use any information about the Customer;
(i) (including any overdue fines balance information held by the Ministry of Justice) for the purpose of assessing the Customer’s creditworthiness; or
(ii) for the purpose of marketing products and services to the Customer.
(b) disclose information about the Customer, whether collected by Hepburn from the Customer directly or obtained by Hepburn 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 Customer.
27.2 Where the Customer is an individual the authorities under clause 27.1 are authorities or consents for the purposes of the Privacy Act 1993.
27.3 The Customer shall have the right to request Hepburn for a copy of the information about the Customer retained by Hepburn and the right to request Hepburn to correct any incorrect information about the Customer held by Hepburn.
28. Unpaid Hepburn’s Rights
28.1 Where the Customer has left any item with Hepburn for repair, modification, exchange or for Hepburn to perform any other service in relation to the item and Hepburn has not received or been tendered the whole of any moneys owing to it by the Customer, Hepburn shall have, until all moneys owing to Hepburn are paid:
(a) a lien on the item; and
(b) the right to retain or sell the item, such sale to be undertaken in accordance with any legislation applicable to the sale or disposal of uncollected Materials.
28.2 The lien of Hepburn shall continue despite the commencement of proceedings, or judgment for any moneys owing to Hepburn having been obtained against the Customer.
29. Construction Contract Act 2002
29.1 The Customer hereby expressly acknowledges that:
(b) Hepburn 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 Customer, and:
(i) the payment is not paid in full by the due date for payment and no payment schedule has been given by the Customer; or
(ii) a scheduled amount stated in a payment schedule issued by the Customer in relation to the payment claim is not paid in full by the due date for its payment; or
(iii) the Customer has not complied with an adjudicator’s notice that the Customer must pay an amount to Hepburn by a particular date; and
(iv)Hepburn has given written notice to the Customer of its intention to suspend the carrying out of construction work under the construction contract.
(c) if Hepburn 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 Customer or by any person claiming through the Customer; 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.
(d) if Hepburn exercises the right to suspend work, the exercise of that right does not:
(i) affect any rights that would otherwise have been available to Hepburn under the Contractual Remedies Act 1979; or
(i) enable the Customer to exercise any rights that may otherwise have been available to the Customer under that Act as a direct consequence of Hepburn suspending work under this provision.
30. Liquidated Damages
30.1 If the Customer owes Hepburn any money the Customer shall indemnify Hepburn from and against all costs and disbursements incurred by Hepburn’s in recovering the debt (including, but not limited to, internal administration fees, legal costs on a solicitor and own client basis, Hepburn’s collection agency costs, bank dishonour fees, and liquidated damages equivalent to Hepburn’s standard hourly rates for all time that Hepburn or Hepburn’s employees are required to spend in actively pursuing the debt (for the sake of clarity the liquidated damages shall be calculated based on an individual’s standard hourly rate as was applicable at the date that the debt became overdue).
30.2 Hepburn shall be under no liability whatsoever to the Customer for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by Hepburn of these terms and conditions (alternatively Hepburn’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Works).
31.1 The failure by Hepburn to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect Hepburn’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.
31.2 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 courts of Rotorua.
31.3 The Customer shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Customer by Hepburn nor to withhold payment of any invoice because part of that invoice is in dispute.
31.4 Hepburn may license or sub-contract all or any part of its rights and obligations without the Customer’s consent.
31.5 The Customer agrees that Hepburn may amend these terms and conditions at any time. If Hepburn makes a change to these terms and conditions, then that change will take effect from the date on which Hepburn notifies the Customer of such change. The Customer will be taken to have accepted such changes if the Customer makes a further request for Hepburn to provide any Works to the Customer.
31.6 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.
31.7 The Customer warrants that it has the power to enter into this agreement and has obtained all necessary authorisations to allow it to do so, it is not insolvent and that this agreement creates binding and valid legal obligations on it.