Terms & Conditions of Trade

1.  Definitions

1.1 “Client” means the person/s, entities or any person acting on behalf of and with the authority of the Client requesting PPL to provide the Services as specified in any proposal, quotation, order, invoice or other documentation, and:

(a) if there is more than one Client, is a reference to each Client jointly and severally; and
(b) if the Client is a partnership, it shall bind each partner jointly and severally; and
(c) if the Client is a part of a Trust, shall be bound in their capacity as a trustee; and
(d) Includes the Client’s executors, administrators, successors and permitted assigns.

1.2 “Contract” means the terms and conditions contained herein, together with any quotation, order, invoice or other document or amendments expressed to be supplemental to this Contract.
1.3 “Cookies” means small files which are stored on a user’s computer. They are designed to hold a modest amount of data (including Personal Information) specific to a particular client and website and can be accessed either by the web server or the client’s computer. If the Client does not wish to allow Cookies to operate in the background when using PPL’s website, then the Client shall have the right to enable / disable the Cookies first by selecting the option to enable / disable provided on the website, prior to making enquiries via the website.
1.4 “Equipment” means all Equipment including any accessories supplied on hire by PPL to the Client (and where the context so permits shall include any supply of Services). The Equipment shall be as described on the invoices, quotation, authority to hire, or any other work authorisation form provided by PPL to the Client.
1.5 “Goods” means all Goods or Services supplied by PPL to the Client at the Client’s request from time to time (where the context so permits the terms ‘Goods’ or ‘Services’ shall be interchangeable for the other).
1.6 “Minimum Hire Period” means the Minimum Hire Period as described on the invoices, quotation, authority to hire, or any other forms as provided by PPL to the Client.
1.7 “PPL” means Prime Pump Limited Trading As Prime Fluid Management, its successors and assigns.
1.8 “Price” means the Price payable for the Goods/Equipment hire (plus any Goods and Services Tax (“GST”) where applicable) as agreed between PPL and the Client in accordance with clause 6 below.

2. Acceptance

2.1 The parties acknowledge and agree that:

(a) they have read and understood the terms and conditions contained in this Contract; and
(b) the parties are taken to have exclusively accepted and are immediately bound, jointly and severally, by these terms and conditions if the Client places an order for or accepts Delivery of the Goods/Equipment.

2.2 In the event of any inconsistency between the terms and conditions of this Contract and any other prior document or schedule that the parties have entered into, the terms of this Contract shall prevail.
2.3 Any amendment to the terms and conditions contained in this Contract may only be amended in writing by the consent of both parties.
2.4 The Client acknowledges and accepts that:

(a) the supply of Goods/Equipment on credit shall not take effect until the Client has completed a credit application with PPL and it has been approved with a credit limit established for the account. In the event that the supply of Goods/Equipment requested exceeds the Client’s credit limit and/or the account exceeds the payment terms, PPL reserves the right to refuse Delivery; and
(b) installation is at PPL’s standard rates, maintenance and service contracts may incur additional travel charges unless otherwise agreed.
2.5 Where PPL gives any advice, recommendation, information, assistance or service provided by PPL in relation to the Goods or Services supplied is given in good faith to the Client, or the Client’s agent and is based on PPL’s own knowledge and experience and shall be accepted without liability on the part of PPL. Where such advice or recommendations are not acted upon then PPL shall require the Client or their agent to authorise commencement of the Services in writing. PPL shall not be liable in any way whatsoever for any damages or losses that occur after any subsequent commencement of the Services.

2.6 These terms and conditions may be meant to be read in conjunction with PPL’s service contract if there are any inconsistencies between the two documents then the terms and conditions contained therein shall prevail.
2.7 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. Errors and Omissions

3.1 The Client acknowledges and accepts that PPL 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 PPL 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 PPL in respect of the Services.
3.2 In the event such an error and/or omission occurs in accordance with clause 3.1, and is not attributable to the negligence and/or wilful misconduct of PPL, the Client:
(a) shall not be entitled to treat this Contract as repudiated nor render it invalid; but
(b) shall not be responsible for any additional costs incurred by PPL arising from the error or omission.

4. Authorised Representatives

4.1 Unless otherwise limited as per clause 4.2 the Client agrees that should the Client introduce any third party to PPL as the Client’s duly authorised representative, that once introduced that person shall have the full authority of the Client to order any Goods, Equipment or Services on the Client’s behalf and/or to request any variation to the Services on the Client’s behalf (such authority to continue until all requested Services have been completed or the Client otherwise notifies PPL in writing that said person is no longer the Client’s duly authorised representative).
4.2 In the event that the Client’s duly authorised representative as per clause 4.1 is to have only limited authority to act on the Client’s behalf, then the Client must specifically and clearly advise PPL in writing of the parameters of the limited authority granted to their representative.
4.3 The Client specifically acknowledges and accepts that they will be solely liable to PPL for all additional costs incurred by PPL (including PPL’s profit margin) in providing any Services, Goods or Equipment or variation/s requested by the Client’s duly authorised representative (subject always to the limitations imposed under clause 4.2 (if any)).

5. Change in Control

5.1 The Client shall give PPL 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 numbers/s, change of trustees, or business practice). The Client shall be liable for any loss incurred by PPL as a result of the Client’s failure to comply with this clause.

6. Price and Payment

6.1 At PPL’s sole discretion, the Price shall be either:

(a) as indicated on any invoice provided by PPL to the Client; or
(b) PPL's quoted Price (subject to clause 6.2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.

6.2 PPL reserves the right to change the Price:

(a) if a variation to the Goods which are to be supplied is requested; or
(b) if during the course of the Services, the Goods cease to be available from PPL's third-party suppliers, then PPL reserves the right to provide alternative Goods, subject to prior confirmation and agreement of both parties; or
(c) if a variation to the Services originally scheduled (including any applicable plans or specifications) is requested; or
(d) where additional Services are required due to the discovery of hidden or unidentifiable difficulties (including, but not limited to, limitations to accessing the site, on site condition of pump and/or the specification of pump that may not be type required for job, availability of machinery, safety considerations, prerequisite work by any third party not being completed or non-code compliant, etc) which are only discovered on commencement of the Services; or
(e) in the event of increases to PPL 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 and/or international freight and insurance charges) which are beyond PPL's control.

6.3 Variations will be charged for on the basis of PPL's quotation, and will be detailed in writing, and shown as variations on PPL's invoice. The Client shall be required to respond to any variation submitted by PPL within ten (10) working days. Failure to do so will entitle PPL 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 PPL’s sole discretion, a reasonable non-refundable deposit may be required.
6.5 Time for payment for the Goods/Equipment being of the essence, the Price will be payable by the Client on the date/s determined by PPL, which may be:

(a) on or before Delivery of the Goods/Equipment;
(b) by way of instalments/progress payments in accordance with PPL’s payment schedule;
(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 which is fourteen (14) days following the date of any invoice given to the Client by PPL; 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 PPL.

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

6.7 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 Services during which time all Services are to be completed and/or all defects are to be remedied. Any Retention Money applicable to this Contract is to be dealt with in accordance with Subpart 2A of the Construction Contracts Act 2002 and as such no Retention Money shall be used other than to remedy defects in the performance of PPL's obligations under the Contract.
6.8 Payment may be made by electronic/online banking, credit card (a surcharge per transaction may apply), or by any other method as agreed to between the Client and PPL.
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 PPL nor to withhold payment of any invoice because part of that invoice is in dispute.
6.10 Unless otherwise stated the Price does not include GST. In addition to the Price, the Client must pay to PPL an amount equal to any GST PPL must pay for any supply by PPL under this or any other agreement for the sale of the Goods. 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. Delivery of Goods/Equipment

7.1 Delivery ("Delivery") of the Goods/Equipment is taken to occur at the time that PPL (or PPL's nominated carrier) delivers the Goods/Equipment to the Client’s nominated address even if the Client is not present at the address.
7.2 The cost of Delivery is either included in the Price or is in addition to the Price as agreed between the parties.
7.3 PPL may deliver the Goods/Equipment in separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.
7.4 Any time specified by PPL for Delivery of the Goods/Equipment is an estimate only and PPL 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 Goods/Equipment to be delivered at the time and place as was arranged between both parties. In the event that PPL is unable to supply the Goods/Equipment as agreed solely due to any action or inaction of the Client, then PPL shall be entitled to charge a reasonable fee for redelivery and/or storage.

8. Dimensions, Plans and Specifications

8.1 PPL shall be entitled to rely on the accuracy of any plans, specifications and other information provided by the Client and/or the Client's agent. PPL accepts no responsibility for faulty or defective workmanship as a consequence of errors or omissions in the design documentation.
8.2 If the giving of an estimate or quotation for the supply of Goods involves PPL estimating measurements and quantities, it shall be the responsibility of the Client to verify the accuracy of PPL's estimated measurements and quantities, before the Client places an order based on such estimate or accepts such quotation.
8.3 Should the Client require any changes to PPL’s estimated measurements and quantities, the Client shall request such changes in writing, in the case of an estimate before placing an order based on that estimate and in the case of a quotation before acceptance of that quotation.

9. Risk

9.1 Risk of damage to or loss of the Goods passes to the Client on Delivery and the Client must insure the Goods on or before Delivery.
9.2 If any of the Goods are damaged or destroyed following Delivery but prior to ownership passing to the Client, PPL is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by PPL is sufficient evidence of PPL's rights to receive the insurance proceeds without the need for any person dealing with PPL to make further enquiries.
9.3 If the Client requests PPL to leave Goods outside PPL's premises for collection or to deliver the Goods to an unattended location, then such Goods shall be left at the Client's sole risk.
9.4 The Client warrants that the structure of the premises or equipment in or upon which the Goods are to be installed or erected is sound and will sustain the installation and work incidental thereto and PPL shall not be liable for any claims, demands, losses, damages, costs and expenses howsoever caused or arising should the premises or equipment be unable to accommodate the installation.
9.5 The Client acknowledges and accepts that:

(a) PPL utilises GPS monitoring, regular servicing of the Goods is mandatory after the usage limit is reached;
(b) PPL will undertake seasonal testing on multi pump sites and will advise the Client where repairs and/or maintenance are required. In the event that the Client chooses not to undertake the recommended repairs and/or maintenance then PPL will not accept any liability for any further loss or damages to the Goods due to the Client's failure to adhere to this clause;
(c) PPL is only responsible for parts that are replaced/provided by PPL and does not at any stage accept any liability in respect of components supplied by any other third party that subsequently fail and are found to be the source of the failure, the Client agrees to indemnify PPL against any loss or damage thereto, or caused thereby, or any part thereof howsoever arising;
(d) PPL shall not be liable for any defect or damage resulting from incorrect or faulty installation of the Goods by any third party; and
(e) Goods supplied may:

(i) exhibit variations in shade, colour, texture, surface, finish, markings and may fade or change colour over time;
(ii) expand, contract or distort as a result of exposure to heat, cold, weather;
(iii) mark or stain if exposed to certain substances; and
(iv) be damaged or disfigured by impact or scratching.

9.6 PPL will not be held liable if the Goods are not stored correctly (including but not limited to left exposed to the elements etc).
9.7 PPL shall not be liable whatsoever for:

(a) any loss or damage to the Services that is caused by any other tradesmen during and after the completion of the Services; or
(b) delays caused by the Client and/or any other third-party contractors that impacts on the provision of the Services by PPL; and
(c) materials and/or works supplied by the Client and/or any other third party.

9.8 Where the Client instructs PPL to rectify any damage caused by any other tradesman, this will become a variation to the original quotation and will be charged at PPL's normal hourly rate.
9.9 PPL accepts no responsibility for any damage or performance related problems with any Goods where they have not been used and/or maintained in accordance with PPL’s and/or the manufacturers’ recommendations.

10. Access

10.1 The Client shall ensure that PPL has clear and free access to the site at all times to enable them to undertake the Services. PPL 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 PPL.
10.2 Unless otherwise agreed it shall be the Client's responsibility to provide any heavy equipment that may be required for the installation of the Goods, where the equipment is deemed not to be fit for purpose, PPL will arrange to supply the equipment, any additional costs will be invoiced to the Client as a variation in accordance with clause 6.2.
10.3 It is the responsibility of the Client to ensure that access is suitable to accept the weight of laden trucks, or any other equipment as may be deemed necessary by PPL.
10.4 Where PPL requires that Goods, tools etc. required for the Services be stored at the site, the Client shall supply PPL 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.

11. Underground Locations

11.1 Prior to PPL commencing the Services the Client must advise PPL of the precise location of all underground services on the site 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 site.
11.2 Whilst PPL will take all care to avoid damage to any underground services the Client agrees to indemnify PPL 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 11.1.

12. Compliance with Laws

12.1. The Client and PPL shall comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities that may be applicable to the Goods/Services including any WorkSafe guidelines relating to the site and any other relevant safety standards or legislation.
12.2. The Client shall obtain (at the expense of the Client) all licenses, resource consents and approvals that may be required for the Services.

13. Title to Goods

13.1. PPL and the Client agree that ownership of the Goods shall not pass until:

(a) the Client has paid PPL all amounts owing to PPL; and
(b) the Client has met all of its other obligations to PPL.

13.2. Receipt by PPL 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.
13.3. It is further agreed that:

(a) until ownership of the Goods passes to the Client in accordance with clause 13.1 that the Client is only a bailee of the Goods and must return the Goods to PPL on request;
(b) the Client holds the benefit of the Client’s insurance of the Goods on trust for PPL and must pay to PPL the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed;
(c) the Client must not sell, dispose, or otherwise part with possession of the Goods other than in the ordinary course of business and for market value. If the Client sells, disposes or parts with possession of the Goods then the Client must hold the proceeds of any such act on trust for PPL and must pay or deliver the proceeds to PPL on demand;
(d) the Client should not convert or process the Goods or intermingle them with other goods but if the Client does so then the Client holds the resulting product on trust for the benefit of PPL and must sell, dispose of or return the resulting product to PPL as it so directs;
(e) the Client irrevocably authorises PPL to enter any premises where PPL believes the Goods are kept and recover possession of the Goods;
(f) PPL may recover possession of any Goods in transit whether or not Delivery has occurred;
(g) the Client shall not charge or grant an encumbrance over the Goods nor grant nor otherwise give away any interest in the Goods while they remain the property of PPL; and
(h) PPL may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Client.

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

14.1. 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 Goods/Equipment that have previously been supplied and that will be supplied in the future by PPL to the Client, and the proceeds from such Goods/Equipment as listed by PPL to the Client in invoices rendered from time to time.
14.2. 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 PPL may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register;
(b) indemnify, and upon demand reimburse, PPL for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register or releasing any Goods/Equipment charged thereby;
(c) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods/Equipment or the proceeds of such Goods/Equipment in favour of a third party without the prior written consent of PPL; and
(d) immediately advise PPL of any material change in its business practices of selling Goods which would result in a change in the nature of proceeds derived from such sales.

14.3. Unless otherwise agreed to in writing by PPL, the Client waives its right to receive a verification statement in accordance with section 148 of the PPSA.
14.4. The Client shall unconditionally ratify any actions taken by PPL under clauses 14.1 to 14.3.
14.5. Subject to any express provisions to the contrary (including those contained in this clause 14), nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.
14.6. Only to the extent that the hire of the Equipment exceeds a six (6) month hire period with the right of renewal shall clause 14 apply as security agreement in the form of a PPS Lease in respect of Section 36 of the PPSA, in all other matters this clause 14 will apply generally for the purposes of the PPSA.

15. Defualt and Charge

15.1. In consideration of PPL agreeing to supply the Goods/Equipment, the Client charges all its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Client either now or in the future, and the Client grants a security interest in all its present and after-acquired property, to secure the performance by the Client of its obligations under these terms and conditions (including, but not limited to, the payment of any money). The terms of the charge and security interest are that these terms and conditions shall be read as including the terms of a “Mortgage in All Monies” for the purposes of the Land Transfer Act 2017.
15.2. The Client indemnifies PPL from and against all PPL’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising PPL’s rights under this clause.
15.3. The Client irrevocably appoints PPL and each director of PPL as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 15 including, but not limited to, signing any document on the Client’s behalf.

16. Defects and Returns

16.1. The Client shall inspect the Goods/Equipment on Delivery and shall within seven (7) days of Delivery (time being of the essence) notify PPL of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Client shall afford PPL an opportunity to inspect the Goods/Equipment within a reasonable time following Delivery if the Client believes the Goods are defective in any way. If the Client shall fail to comply with these provisions the Goods/Equipment shall be presumed to be free from any defect or damage. For defective Goods/Equipment, which PPL has agreed in writing that the Client is entitled to reject, PPL’s liability is limited to either (at PPL’s discretion) replacing the Goods/Equipment or repairing the Goods/Equipment.
16.2. Goods are not sold on a return basis, provided that:

(a) the Client has complied with the provisions of clause 16.1; and
(b) PPL has agreed in writing to accept the return of the Goods; and
(c) the Goods are returned at the Client’s cost within fourteen (14) days of the Delivery date; and
(d) PPL will not be liable for Goods which have not been stored or used in a proper manner; and
(e) the Goods 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.

16.3. If PPL accepts that the Client is entitled to reject the Goods following their return pursuant to clause 16.2(b) PPL will reimburse the Client the actual and reasonable costs of return Delivery.
16.4. Subject to clause 16.1, non-stocklist items or Goods made to the Client’s specifications are under no circumstances acceptable for credit or return.
16.5.  Non-defective returns will be subject to a restocking fee. 

17. Warranty

17.1. Subject to the conditions of warranty set out in Clause 17.2 PPL warrants that if any defect in any Services provided by PPL, PPL becomes apparent and is reported to PPL within three (3) months of the date of Delivery (time being of the essence) then PPL will either (at PPL’s sole discretion) replace or remedy the defect.
17.2. The conditions applicable to the warranty given by Clause 17.1 are:

(a) the warranty shall not cover any defect or damage which may be caused or partly caused or arise through:

(i) failure on the part of the Client to properly maintain any Goods or serviced item; or
(ii) failure on the part of the Client to follow any instructions or guidelines provided by PPL; or
(iii) any use of any Goods or serviced item otherwise than for any application specified on a quote or order form; or
(iv) the continued use of any Goods or serviced item after any defect becomes apparent or would have become apparent to a reasonably prudent operator or user; or
(v) fair wear and tear, any accident or act of God.

(b) the warranty shall cease, and PPL shall thereafter in no circumstances be liable under the terms of the warranty if the workmanship is repaired, altered or overhauled without PPL’s consent.
(c) in respect of all claims PPL shall not be liable to compensate the Client for any delay in either replacing or remedying the defective Goods or serviced item or in properly assessing the Client’s claim.

17.3. For Goods not manufactured by PPL, the warranty shall be the current warranty provided by the manufacturer of the Goods. PPL shall not be bound by nor responsible for any term, condition, representation or warranty other than that which is given by the manufacturer of the Goods.

18. Consumer Guarantees Act 1993 and the Fair Trading Act 1986

18.1. This Contract is subject to the provisions of the Consumer Guarantees Act 1993 (“CGA”) in all cases except where the Client is not contracting as a consumer within the meaning of the CGA.
18.2. PPL agrees to abide by the provisions of the Fair Trading Act 1986 (“FTA”).

19. Intellectual Property

19.1. Where PPL has designed, drawn or developed Goods for the Client, then the copyright in any designs and drawings and documents shall remain the property of PPL. Under no circumstances may such designs, drawings and documents be used without the express written approval of PPL.
19.2. The Client warrants that all designs, specifications or instructions given to PPL will not cause PPL to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify PPL against any action taken by a third party against PPL in respect of any such infringement.
19.3. The Client agrees that PPL may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings or Goods which PPL has created for the Client.

20. Default and Consequences of Default

20.1. 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 PPL’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
20.2. If the Client owes PPL any money the Client shall indemnify PPL from and against all costs and disbursements incurred by PPL in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, PPL’s collection agency costs, and bank dishonour fees).
20.3. Further to any other rights or remedies PPL may have under this Contract, if a Client has made payment to PPL, 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 PPL under this clause 20.
20.4. Without prejudice to PPL’s other remedies at law PPL shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to PPL shall, whether or not due for payment, become immediately payable if:

(a) any money payable to PPL becomes overdue, or in PPL’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 PPL;
(c) the Client becomes insolvent, 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.

21. Cancellation

21.1. Without prejudice to any other remedies the parties may have, if at any time either party is in breach of any obligation (including those relating to payment) under these terms and conditions then the other party may suspend or terminate the supply or purchase of Goods and Services to the other party. Neither party will be liable for any loss or damage the other party suffers because one of the parties has exercised its rights under this clause.
21.2. If PPL, due to reasons beyond PPL’s reasonable control, is unable to deliver any Goods/Equipment to the Client, PPL may cancel any Contract to which these terms and conditions apply or cancel Delivery of Goods/Equipment at any time before the Goods/Equipment are delivered by giving written notice to the Client. On giving such notice PPL shall repay to the Client any money paid by the Client for the Goods/Equipment. PPL shall not be liable for any loss or damage whatsoever arising from such cancellation.
21.3. The Client may cancel Delivery of the Goods/Equipment by written notice served within forty-eight (48) hours of placement of the order. Failure by the Client to otherwise accept Delivery of the Goods/Equipment shall place the Client in breach of this Contract.
21.4. Cancellation of orders for Goods 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.

22. Privacy Policy

22.1. All emails, documents, images or other recorded information held or used by PPL is “Personal Information” as defined and referred to in clause 23 and therefore considered confidential. PPL acknowledges its obligation in relation to the handling, use, disclosure and processing of Personal Information pursuant to the Privacy Act 2020 (The Act) including Part II of the OECD Guidelines as set out in the Act. PPL acknowledges that in the event it becomes aware of any data breaches and/or disclosure of the Client’s Personal Information, held by PPL that may result in serious harm to the Client, PPL will notify the Client in accordance with the Act. Any release of such Personal Information must be in accordance with the Act and must be approved by the Client by written consent, unless subject to an operation of law.
22.2. Notwithstanding clause 22.1, privacy limitations will extend to PPL in respect of Cookies where the Client utilizes PPL’s website to make enquiries. PPL 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 PPL when PPL sends an email to the Client, so PPL may collect and review that information (collectively “Personal Information”). If the Client consents to PPL’s use of Cookies on PPL’s website and later wishes to withdraw that consent, the Client may manage and control PPL’s privacy controls via the Client’s web browser, including removing Cookies by deleting them from the browser history when exiting the site.

22.3. The Client authorises PPL or PPL’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 PPL from the Client directly or obtained by PPL 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.
22.4. Where the Client is an individual the authorities under clauses 22.3 are authorities or consents for the purposes of the Privacy Act 2020.
22.5. The Client shall have the right to request (by email) from the Seller, a copy of the Personal Information about the Client retained by PPL and the right to request that PPL correct any incorrect Personal Information.
22.6. PPL will destroy Personal Information upon the Client’s request (by email) or if it is no longer required unless it is required in order to fulfill the obligations of this Contract or is required to be maintained and/or stored in accordance with the law.
22.7. The Client can make a privacy complaint by contacting the EPL via email. PPL will respond to that complaint within seven (7) days and will take all reasonable steps to make a decision as to the complaint within twenty (20) days of receipt of the complaint. In the event that the Client is not satisfied with the resolution provided, the Client can make a complaint to the Privacy Commissioner at http://www.privacy.org.nz.

23. Equipment Hire

23.1. Equipment shall at all times remain the time Equipment is collected by the Client from PPL’s premises and will continue until the return of the Equipment to PPL’s premises, and/or under the expiry of the Minimum Hire Period, whichever last occurs.
23.2. If PPL agrees with the Client to deliver and/or collect the Equipment, hire charges shall commence from the time when the Equipment leaves PPL’s premises and continue until the Client notifies PPL that the Equipment is available for collection, and/or under the expiry of the Minimum Hire Period, whichever last occurs.
23.3 The date upon which the Client gives notice of termination shall in all cases be treated as a full day's hire.
23.4 No allowance whatsoever can be made for time during which the Equipment is not used for any reason, unless PPL confirms special prior arrangements in writing. In the event of Equipment breakdown provided the Client notifies PPL immediately, hiring charges will not be payable during the time the Equipment is not working, unless the condition is due to negligence or misuse on the part of or attributable to the Client.
23.5 The Equipment shall at all times remain the property of PPL and is returnable on demand by PPL. In the event that Equipment is not returned to PPL in the condition in which it was delivered PPL retains the right to charge the Client the full cost of repairing the Equipment. Where the rental Equipment is not returned at all PPL shall have the right to charge the Client the full cost of replacing the Equipment.
23.6 The Client shall:

(a) Keep the Equipment in their own possession and control and shall not assign the benefit of the Equipment nor be entitled to a lien over the Equipment;
(b) not alter or make any additions to the Equipment including but without limitation altering, making any additions to, defacing or erasing any identifying mark, plate or number on or in the Equipment or in any other manner interfere with the Equipment;
(c) keep the Equipment, complete with all parts and accessories, clean and in good order as delivered, and shall comply with any maintenance schedules as advised by PPL to the Client.

23.7 The Client accepts full responsibility for the safekeeping of the Equipment and the Client agrees to insure, or self insure, PPL's interest in the Equipment and agrees to indemnify PPL against physical loss or damage including, but not limited to, the perils of accident, fire, theft and burglary and all other usual risks and will affect adequate Public Liability Insurance covering any loss, damage or injury to property or persons arising out of the use of the Equipment. Further the Client will not use the Equipment nor permit it to be used in such a manner as would permit an insurer to decline any claim.
23.8 Notwithstanding the above clause, immediately on request by PPL the Client will pay:

(a) any lost hire charges PPL would have otherwise been entitled to for the Equipment, under this, or any other hire agreement;
(b) any insurance excess payable in relation to a claim made by either the Client or PPL in relation to any damage caused by, or to, the hire Equipment whilst the same is hired by the Client and irrespective of whether charged by the Client’s insurers or PPL's.

23.9 Return of the Equipment ("Return") will be completed when the:

(a) Equipment is returned by the Client to PPL’s place of business; or
(b) PPL takes back possession of the Equipment once collection by PPL is affected.

24. Wet Hire

24.1 In the event of "wet" hire of the Equipment the operator of the Equipment remains an employee of PPL and operates the Equipment in accordance with the Client’s instructions. As such PPL shall not be liable for any actions of the operator in following the Client’s instructions.

25. Suspension of Services

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

(a) PPL has the right to suspend work within five (5) working days of written notice of its intention 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 PPL by a particular date; and
(iv) PPL has given written notice to the Client of its intention to suspend the carrying out of construction work under the construction Contract.

(b) If PPL 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 PPL exercises the right to suspend work, the exercise of that right does not:

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

(d) due to any act or omission by the Client, the Client effectively precludes PPL from performing the Services or performing PPL’s obligations under this Contract, then without prejudice to PPL's other rights and remedies, PPL may suspend the Services immediately on serving on the Client a written notice specifying the default and requiring the default to be remedied (but which shall be without prejudice to PPL's rights under clause 25.1). All costs and expenses incurred by PPL as a result of such suspension and recommencement shall be payable by the Client as if they were a variation.

(e) If the Services are not provided within this Contract, PPL suspends the Services and the default that led to that suspension continues un-remedied for at least 10 (ten) working days, PPL shall be entitled to terminate this Contract, in accordance with clause 21.1.

26. Service of Notice

26.1 Any written notice required under this Contract shall be deemed to have been duly given, if sent by email to the recipient’s last known email address.

(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. Trusts

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 or as an agent for a trust ("Trust") then whether or not PPL may have notice of the Trust, the Client covenants with PPL as follows:

(a) The Contract extends to all rights of indemnity which the Client now or subsequently have against the Trust, the trustees and the trust fund;
(b) The Client has full and complete power and authority under the Trust or from the Trustees of the Trust as the case maybe to enter into the Contract and the provisions of the Trust do not purport to exclude or take away the right of indemnity of the Client against the Trust, the trustees and the trust fund. The Client will not release the right of indemnity or commit any breach of trust or be a party to any other action which might prejudice that right of indemnity;
(c) The Client will not during the term of the Contract without consent in writing of PPL (PPL will not unreasonably withhold consent), cause, permit, or suffer to happen any of the following events:

(i) the removal, replacement or retirement of the Client as trustee of the Trust;
(ii) any alteration to or variation of the terms of the Trust;
(iii) any advancement or distribution of capital of the Trust; or
(iv) any resettlement of the trust fund or trust property.

28. General

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 Canterbury Courts of New Zealand.
28.4 Subject to the CCA, the liability of PPL and the Client under this Contract shall be limited to the Price.
28.5 PPL may license and/or assign all or any part of its rights and/or obligations under this Contract without the Client’s consent provided the assignment does not cause detriment to the Client.
28.6 The Client cannot license or assign without the written approval of PPL.
28.7 PPL may elect to subcontract out any part of the Services 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 PPL’s sub-contractors without the authority of PPL.
28.8 The Client agrees that PPL may amend these 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 PPL to provide Goods/Equipment 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, pandemic or other event beyond the reasonable control of either party. This clause does not apply to a failure by the Client to make a payment to PPL following cessation of Force Majeure.
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.