1. Definitions 1.1 “Contract” means the terms and conditions contained herein, together with any quotation, order, invoice or other document or amendments expressed to be supplemental to this Contract. 1.2 “Volt Works” means Volt Works Electrical Limited T/A Volt Works Electrical, its successors and assigns or any person acting on behalf of and with the authority of Volt Works Electrical Limited T/A Volt Works Electrical. 1.3 “Client” means the person/s, entities or any person acting on behalf of and with the authority of the Client requesting Volt Works to provide the Works as specified in any proposal, quotation, order, invoice or other documentation, and: (a) if there is more than one Client, is a reference to each Client jointly and severally; and (b) if the Client is a partnership, it shall bind each partner jointly and severally; and (c) if the Client is a part of a trust, shall be bound in their capacity as a trustee; and (d) includes the Client’s executors, administrators, successors and permitted assigns. 1.4 “Works” means all Works (including consultation, manufacturing and/or installation services) or Materials supplied by Volt Works to the Client at the Client’s request from time to time (where the context so permits the terms ‘Works’ or ‘Materials’ shall be interchangeable for the other). 1.5 “Worksite” means the address nominated by the Client to which the Materials are to be supplied by Volt Works. 1.6 “Price” means the Price payable (plus any Goods and Services Tax (“GST”) where applicable) for the Works as agreed between Volt Works and the Client in accordance with clause 3 below.
2. Acceptance 2.1 The Client is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Client places an order for or accepts delivery of any Works. 2.2 In the event of any inconsistency between the terms and conditions of this Contract and any other prior document or schedule that the parties have entered into, the terms of this Contract shall prevail. 2.3 Any amendment to the terms and conditions contained in this Contract may only be amended in writing by the consent of both parties. 2.4 The Client acknowledges that the supply of Works on credit shall not take effect until the Client has completed a credit application with Volt Works and it has been approved with a credit limit established for the account. 2.5 In the event that the supply of Works requested exceeds the Client’s credit limit and/or the account exceeds the payment terms, Volt Works reserves the right to refuse delivery. 2.6 In the event that the supply of Works request exceeds the Client’s credit limit and/or the account exceeds the payment terms, Volt Works reserves the right to refuse delivery. 2.7 Where the Client is a tenant (and therefore not the owner of the land and premises where Works are to be carried out) then the Client warrants that they have obtained the full consent of the owner for Volt Works to carry out the Works on the owner’s land and premises. The Client acknowledges and agrees that they shall be personally liable for full payment of the Price for the Works provided under this Contract and to indemnify Volt Works against any claim made by the owner of the premises (howsoever arising) in relation to the provision of the Works by Volt Works, except where such claim has arisen because of the negligence of Volt Works when undertaking the Works. Furthermore, the Client agrees that they shall, upon request from Volt Works, provide evidence that: (a) they are the owner of the land and premises upon which the Works are be undertaken; or (b) where they are a tenant, that they have the consent of the owner for the Works to be carried out on the land and premises. 2.8 In the event that the Client requests Volt Works to: (a) make an emergency Call-Out for critical equipment after hours or causes Volt Works to cancel or reschedule other work then Volt Works reserves the right to charge a minimum Call-Out fee of one (1) hour labour cost plus a per kilometre travelled rate plus any Materials used to undertake the Works unless otherwise agreed between Volt Works and the Client; and (b) provide the Works urgently, that may require Volt Works’ staff to work outside normal business hours (including but not limited to working, through lunch breaks, weekends and/or Public Holidays) then Volt Works reserves the right to charge the Client additional labour costs (penalty rates will apply at time and a half normal rates), unless otherwise agreed between Volt Works and the Client. 2.9 If Volt Works has been requested by the Client to diagnose a fault that requires investigation, disassembly and/or testing, all costs involved will be charged to the Client irrespective of whether or not the repair goes ahead. 2.10 The Client shall give Volt Works not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client and/or any other change in the Client’s details (including but not limited to, changes in the Client’s name, address, contact phone or fax number/s, change of trustees, or business practice). The Client shall be liable for any loss incurred by Volt Works as a result of the Client’s failure to comply with this clause. 2.11 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. Price and Payment 3.1 At Volt Works’ sole discretion the Price shall be either: (a) as indicated on invoices provided by Volt Works to the Client in respect of Works performed or Materials supplied; or (b) Volt Works’ Price at the date of delivery of the Works according to Volt Works’ current pricelist; or (c) Volt Works’ quoted Price (subject to clause 3.2) which shall be binding upon Volt Works provided that the Client shall accept Volt Works’ quotation in writing within thirty (30) days. 3.2 Volt Works reserves the right to change the Price: (a) if a variation to the Materials which are to be supplied is requested; or (b) if a variation to the Works originally scheduled (including any applicable plans or specifications) is requested; or (c) where additional Works are required due to the discovery of hidden or unidentifiable difficulties (including, but not limited to, poor weather conditions, limitations to the Worksite access and/or crawl spaces, prerequisite work by a third party not being completed, inaccurate measurements, plans or specifications supplied by the Client, remedial work required due to existing workmanship being of a poor quality or non-compliant to the building code, hard rock or other barriers below the surface, iron reinforcing rods in concrete, or hidden pipes and wiring, etc) which are only discovered on commencement of the Works; or (d) in the event of increases to Volt Works in the cost of labour or materials which are beyond Volt Works’ control. 3.3 Variations will be charged for on the basis of Volt Works’ quotation, and will be detailed in writing, and shown as variations on Volt Works’ invoice. The Client shall be required to respond to any variation submitted by Volt Works within ten (10) working days. Failure to do so will entitle Volt Works 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. 3.4 At Volt Works’ sole discretion a deposit may be required. 3.5 Time for payment for the Works being of the essence, the Price will be payable by the Client on the date/s determined by Volt Works, which may be: (a) on completion of the Works; (b) by way of progress payments in accordance with Volt Works’ specified progress payment schedule. Such progress payment claims may include the reasonable value of authorised variations and the value of any Materials delivered to the worksite but not yet installed; (c) for certain approved Client’s, due twenty (20) days following the end of the month in which a statement is posted to the Client’s address or address for notices; (d) the date specified on any invoice or other form as being the date for payment; or (e) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Client by Volt Works. 3.6 At the agreement of both parties, payment of the Price may be subject to retention by the Client of an amount (hereafter called the "Retention Money"), being a set amount or equal to a percentage of the Price. The Client shall hold the Retention Money for the agreed period following completion of the Works during which time all Works are to be completed and/or all defects are to be remedied. Any Retention Money applicable to this Contract is to be dealt with in accordance with Subpart 2A - sections 18(a) to 18(i) of the Construction Contracts Amendment Act 2015. 3.7 Payment may be made by cheque, electronic/on-line banking, or by any other method as agreed to between the Client and Volt Works. 3.8 Volt Works may in its discretion allocate any payment received from the Client towards any invoice that Volt Works determines and may do so at the time of receipt or at any time afterwards. On any default by the Client Volt Works may re-allocate any payments previously received and allocated. In the absence of any payment allocation by Volt Works, payment will be deemed to be allocated in such manner as preserves the maximum value of Volt Works’ Purchase Money Security Interest (as defined in the PPSA) in the Materials. 3.9 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 Volt Works nor to withhold payment of any invoice because part of that invoice is in dispute, unless the request for payment by Volt Works is a claim made under the Construction Contracts Act 2002. 3.10 Unless otherwise stated the Price does not include GST. In addition to the Price, the Client must pay to Volt Works an amount equal to any GST Volt Works must pay for any supply by Volt Works under this or any other agreement for the sale of the Materials. The Client must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Client pays the Price. In addition, the Client must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.
5. Risk 5.1 If Volt Works retains ownership of the Materials under clause 7 then: (a) where Volt Works is supplying Materials only, all risk for the Materials shall immediately pass to the Client on delivery and the Client must insure the Materials on or before delivery. Delivery of the Materials shall be deemed to have taken place immediately at the time that either: (i) the Client or the Client’s nominated carrier takes possession of the Materials at Volt Works’ address; or (ii) the Materials are delivered by Volt Works or Volt Works’ nominated carrier to the Client’s nominated delivery address (even if the Client is not present at the address). (b) where Volt Works is to both supply and install Materials then Volt Works shall maintain a contract works insurance policy until the Works are completed. Upon completion of the Works all risk for the Works shall immediately pass to the Client. 5.2 Notwithstanding the provisions of clause 5.1 if the Client specifically requests Volt Works to leave Materials outside Volt Works’ premises for collection or to deliver the Materials to an unattended location then such materials shall always be left at sole risk of the Client and it shall be the Client’s responsibility to ensure the Materials are insured adequately or at all. In the event that such Materials are lost, damaged or destroyed then replacement of the Materials shall be at the Client’s expense. 5.3 Volt Works shall be entitled to rely on the accuracy of any plans, specifications and other information provided by the Client. The Client acknowledges and agrees that in the event that any of this information provided by the Client is inaccurate, Volt Works accepts no responsibility for any loss, damages, or costs however resulting from these inaccurate plans, specifications or other information. 5.4 The Client 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 but not limited to, the structure not being watertight, the discovery of asbestos, defective or unsafe wiring, or dangerous access etc.) Volt Works reasonably forms the opinion that the Client’s property is not safe for the installation of Materials to proceed then Volt Works shall be entitled to delay installation of the Materials (in accordance with clause 4.2) until Volt Works is satisfied that it is safe for the installation to proceed. Volt Works may in agreement with the Client bring the property up to a standard suitable for installation to proceed but all such Works undertaken and any additional Materials supplied shall be treated as a variation and be charged for in addition to the Price. 5.5 In the event that the electrical wiring is required to be re-positioned at the request of any third party contracted by the Client then the Client agrees to notify Volt Works immediately upon any proposed changes. The Client agrees to indemnify Volt Works against any additional costs incurred with such a relocation of electrical wiring. All such variances shall be invoiced in accordance with clause 3.2. 5.6 Where Volt Works gives advice or recommendations to the Client, or the Client’s agent, regarding the suitability of the Worksite for the installation of the Materials or similar works and such advice or recommendations are not acted upon then Volt Works shall require the Client or their agent to authorise commencement of the Works in writing. Volt Works shall not be liable in any way whatsoever for any damages or losses that occur after any subsequent commencement of the Works. 5.7 The Client acknowledges and accepts that: (a) where Volt Works has performed temporary repairs that: (i) Volt Works offers no guarantee against the reoccurrence of the initial fault, or any further damage caused; and (ii) Volt Works will immediately advise the Client of the fault and shall provide the Client with an estimate for the full repair required; and (b) Volt Works is only responsible for components that are replaced by Volt Works and does not at any stage accept any liability in respect of previous goods and/or services supplied by any other third party that subsequently fail and found to be the source of the failure; and (c) Volt Works shall not be responsible or liable for any defect in other appliances or power points as a coincidence of Volt Works installing the Materials, and (d) any defects in the Materials or appearing in the Works after completion due to the Client or any third party using any items that overloads the structure or system to which Volt Works’ Materials are installed or connected to, or by workmanship not performed by Volt Works, shall not be covered by any applicable warranty pertaining to the Materials; and (e) it is the Client’s responsibility to insure any equipment partly or completely installed on the Worksite, against theft or damage; and (f) Volt Works shall not be liable for any loss or damage caused in accessing the work area beyond reasonable control of Volt Works (including, without limitation, to ceiling tiles and panels, face brickwork and rendered masonry services) which Volt Works may have to break into or disturb in performance of the Works), unless due to the negligence of Volt Works; and (g) under no circumstances, will Volt Works handle removal of asbestos product. In the event asbestos (or other hazardous material) is discovered on the Worksite: (i) Volt Works shall suspend the Works; and (ii) the Client shall be fully responsible for the resolution of any resulting problems; and (iii) any additional cost incurred by Volt Works shall be added to the Price under clause 3.2; and (h) Materials supplied may: (i) exhibit variations in shade, colour, texture, surface and finish, and may fade or change colour over time. Volt Works will make every effort to match batches of product supplied in order to minimise such variations but shall not be liable in any way whatsoever where such variations occur; and (ii) expand, contract or distort as a result of exposure to heat, cold, weather; and (iii) mark or stain if exposed to certain substances; and (iv) be damaged or disfigured by impact or scratching. 5.8 Where Volt Works requires that Materials, tools etc. required for the Works be stored at the Worksite, the Client shall supply Volt Works 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.
6. Access 6.1 The Client shall ensure that Volt Works has clear and free access to the Worksite at all times to enable them to undertake the Works. Volt Works shall not be liable for any loss or damage to the Worksite (including, without limitation, damage to pathways, driveways and concreted or paved or grassed areas), unless due to the negligence of Volt Works. 6.2 It is the Client’s responsibility to provide Volt Works, while at the Worksite, with adequate access to available water, electricity, toilet and washing facilities as required. 6.3 Worksite Inductions (a) in the event the Client requires an employee or sub-contractor of Volt Works to undertake a Worksite induction during working hours, the Client will be liable to pay the hourly charges for that period. If any induction needs to be undertaken prior to the commencement date then the Client shall be liable to pay Volt Works’ standard (and/or overtime, if applicable) hourly labour rate; or (b) where Volt Works is in control of the Worksite, the Client and/or the Client’s third-party contractors must initially carry out Volt Works’ Health & Safety induction course before access to the Worksite will be granted. Inspection of the Worksite during the course of the Works will be by appointment only and unless otherwise agreed, in such an event the Client and/or third party acting on behalf of the Client must at all times be accompanied by Volt Works.
8. Compliance with Laws 8.1 The Client and Volt Works shall comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities that may be applicable to the Works, including any WorkSafe health and safety laws relating or any other relevant safety standards or legislation pertaining to the Works. 8.2 Both parties acknowledge and agree: (a) to comply with the Building Amendment Act 2013, in respect of all workmanship and building products to be supplied during the course of the Works; and (b) that Works will be provided in accordance with any current relevant Australian/New Zealand Standards applicable. 8.3 Where the Client has supplied products for Volt Works to complete the Works, the Client acknowledges that it accepts responsibility for the suitability of purpose and are for their intended use and any faults inherent in those products. However, if in Volt Works’ opinion, it is believed that the materials supplied are non-conforming products and will not conform with New Zealand regulations, then Volt Works shall be entitled, without prejudice, to halt the Works until the appropriate conforming products are sourced and all costs associated with such a change to the plans and design will be invoiced in accordance with clause 3.2. 8.4 The Client shall obtain (at the expense of the Client) all licenses and approvals that may be required for the Works. 8.5 Volt Works shall comply with the terms and conditions of all such consents and approvals in so far as such consents and approvals relate to the carrying out of the Works. 8.6 All work will be tested to ensure that it is electrically safe and is in accordance with the wiring rules and other standards applying to the electrical installation under the Electrical Safety Regulations. All of the cabling work will comply with all relevant Australian and New Zealand Wiring standards. 8.7 If during the course of installation when the Works are being conducted within and around switchboards that if the same is found defective or deemed to be unsafe by Volt Works, then Volt Works shall notify the Client immediately. The power if isolated will not be re-energised until such time as the existing condition has been rectified and made safe in accordance to the Electrical Safety Regulations. The Client accepts and agrees that any costs associated with the rectification Works including any Materials and labour shall be to the Client’s account. 8.8 Any live Works or Works undertaken near live conductors where it is safe to do so shall be dealt with in accordance with New Zealand and Australian Wiring standards being “Safe working on Low Voltage Electrical Installations, relevant Statutory Acts and Work Place Regulations”. Volt Works’ live Works procedures are designed to eliminate risk of injury to Volt Works’ employees, damage to the Client’s installations and unexpected power disconnections. It may in some cases require disconnection and isolation of the installation to undertake such Works for which additional charges may be applicable. This shall be invoiced in accordance with clause 3.2. 8.9 Notwithstanding clause 8.1 and pursuant to the Health & Safety at Work Act 2015 (the “HSW Act”), Volt Works agrees at all times to comply with sections 28 and 34 of the “HSW Act” with meeting their obligations for health and safety laws in the workplace regardless of whether they may be the party in control of the Worksite or where they may be acting as a sub-contractor for the Client who has engaged a third party head contractor.
9. Title 9.1 Volt Works and the Client agree that ownership of the Materials shall not pass until: (a) the Client has paid Volt Works all amounts owing to Volt Works; and (b) the Client has met all of its other obligations to Volt Works. 9.2 Receipt by Volt Works 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. 9.3 It is further agreed that: (a) until ownership of the Materials passes to the Client in accordance with clause 9.1 that the Client is only a bailee of the Materials and unless the Materials have become fixtures must return the Materials to Volt Works on request; (b) the Client holds the benefit of the Client’s insurance of the Materials on trust for Volt Works and must pay to Volt Works 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 Volt Works shall be sufficient evidence of Volt Works’ rights to receive the insurance proceeds direct from the insurer without the need for any person dealing with Volt Works to make further enquiries; (d) the Client must not sell, dispose, or otherwise part with possession of the Materials other than in the ordinary course of business and for market value. If the Client sells, disposes or parts with possession of the Materials then the Client must hold the proceeds of any such act on trust for Volt Works and must pay or deliver the proceeds to Volt Works on demand; (e) the Client should not convert or process the Materials or intermix them with other goods but if the Client does so then the Client holds the resulting product on trust for the benefit of Volt Works and must sell, dispose of or return the resulting product to Volt Works as it so directs; (f) unless the Materials have become fixtures the Client irrevocably authorises Volt Works to enter any premises where Volt Works believes the Materials are kept and recover possession of the Materials; (g) Volt Works may recover possession of any Materials in transit whether or not delivery has occurred; (h) the Client shall not charge or grant an encumbrance over the Materials nor grant nor otherwise give away any interest in the Materials while they remain the property of Volt Works; and (i) Volt Works may commence proceedings to recover the Price of the Materials sold notwithstanding that ownership of the Materials has not passed to the Client.
10. Personal Property Securities Act 1999 (“PPSA”) 10.1 Upon assenting to these terms and conditions in writing the Client acknowledges and agrees that: (a) these terms and conditions constitute a security agreement for the purposes of the PPSA; and (b) a security interest is taken in all Materials and/or collateral (account) – being a monetary obligation of the Client to Volt Works for Works – that have previously been supplied and that will be supplied in the future by Volt Works to the Client. 10.2 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 Volt Works may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register; (b) indemnify, and upon demand reimburse, Volt Works for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register or releasing any Materials charged thereby; (c) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Materials and/or collateral (account) in favour of a third party without the prior written consent of Volt Works; and (d) immediately advise Volt Works 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. 10.3 Volt Works and the Client agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms and conditions. 10.4 The Client waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, and 131 of the PPSA. 10.5 Unless otherwise agreed to in writing by Volt Works, the Client waives its right to receive a verification statement in accordance with section 148 of the PPSA. 10.6 The Client shall unconditionally ratify any actions taken by Volt Works under clauses 10.1 to 10.5. 10.7 Subject to any express provisions to the contrary (including those contained in this clause 10), nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.
11. Security and Charge 11.1 In consideration of Volt Works agreeing to supply the Works, the Client charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Client either now or in the future, to secure the performance by the Client of its obligations under these terms and conditions (including, but not limited to, the payment of any money). 11.2 The Client indemnifies Volt Works from and against all Volt Works’ costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising Volt Works’ rights under this clause. 11.3 The Client irrevocably appoints Volt Works and each director of Volt Works as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 11 including, but not limited to, signing any document on the Client’s behalf.
13. Returns of Materials 13.1 Returns will only be accepted provided that: (a) the Client has complied with the provisions of clause 12.1; and (b) Volt Works has agreed in writing to accept the return of the Materials; and (c) the Materials are returned at the Client’s cost within seven (7) days of the delivery date; and (d) Volt Works will not be liable for Materials which have not been stored or used in a proper manner; and (e) the Materials are returned in the condition in which they were delivered and with all packaging material, brochures and instruction material in as new condition as is reasonably possible in the circumstances. 13.2 Volt Works will not accept the return of Materials for credit. 13.3 Volt Works may (in its discretion) accept the return of Materials for credit but this may incur a handling fee of ten percent (10%) of the value of the returned Materials plus any freight. 13.4 Returned Materials may (at Volt Works’ sole discretion), incur restocking and handling fees. 13.5 Subject to clause 12.1, non-stocklist items or Materials made to the Client’s specifications are under no circumstances acceptable for credit or return.
14. Warranties 14.1 To the extent permitted by statute, no warranty is given by Volt Works as to the quality or suitability of the Materials for any purpose and any implied warranty, is expressly excluded. Volt Works shall not be responsible for any loss or damage to the Materials, or caused by the Materials, or any part thereof however arising.
15. Consumer Guarantees Act 1993 15.1 If the Client is acquiring Materials for the purposes of a trade or business, the Client acknowledges that the provisions of the Consumer Guarantees Act 1993 do not apply to the supply of Materials by Volt Works to the Client.
16. Intellectual Property 16.1 Where Volt Works has designed, drawn, written plans or a schedule of Works, or created any products for the Client, then the copyright in all such designs, drawings, documents, plans, schedules and products shall remain vested in Volt Works, and shall only be used by the Client at Volt Works’ discretion. Under no circumstances may such designs, drawings and documents be used without the express written approval of Volt Works. 16.2 The Client warrants that all designs, specifications or instructions given to Volt Works will not cause Volt Works to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify Volt Works against any action taken by a third party against Volt Works in respect of any such infringement. 16.3 The Client agrees that Volt Works may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings, plans or products which Volt Works has created for the Client.
17. Default and Consequences of Default 17.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at Volt Works’ sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment. 17.2 If the Client owes Volt Works any money the Client shall indemnify Volt Works from and against all costs and disbursements incurred by Volt Works in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, Volt Works’ collection agency costs, and bank dishonour fees). 17.3 Further to any other rights or remedies Volt Works may have under this Contract, if a Client has made payment to Volt Works, 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 Volt Works under this clause 17, where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Client’s obligations under this Contract. 17.4 Without prejudice to Volt Works’ other remedies at law Volt Works shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to Volt Works shall, whether or not due for payment, become immediately payable if: (a) any money payable to Volt Works becomes overdue, or in Volt Works’ 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 Volt Works; (c) the Client becomes insolvent or bankrupt, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or (d) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.
19. Suspension of Works 19.1 Where the Contract is subject to section 24A of the Construction Contracts Amendment Act 2015, the Client hereby expressly acknowledges that: (a) Volt Works has the right to suspend work within five (5) working days of written notice of its intent to do so if a payment claim is served on the Client, and: (i) the payment is not paid in full by the due date for payment in accordance with clause 3.5 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 Volt Works by a particular date; and (iv) Volt Works has given written notice to the Client of its intention to suspend the carrying out of construction work under the construction Contract. (b) if Volt Works 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 Volt Works exercises the right to suspend work, the exercise of that right does not: (i) affect any rights that would otherwise have been available to Volt Works 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 Volt Works suspending work under this provision; (d) due to any act or omission by the Client, the Client effectively precludes Volt Works from continuing the Works or performing or complying with Volt Works’ obligations under this Contract, then without prejudice to Volt Works’ other rights and remedies, Volt Works may suspend the Works immediately after serving on the Client a written notice specifying the payment default or the act, omission or default upon which the suspension of the Works is based. All costs and expenses incurred by Volt Works as a result of such suspension and recommencement shall be payable by the Client as if they were a variation. 19.2 If pursuant to any right conferred by this Contract, Volt Works suspends the Works and the default that led to that suspension continues un-remedied subject to clause 18.1 for at least ten (10) working days, Volt Works shall be entitled to terminate the Contract, in accordance with clause 18.
21. General 21.1 Any dispute or difference arising as to the interpretation of these terms and conditions or as to any matter arising hereunder, shall be submitted to, and settled by, either adjudication in accordance with section 26 of the Construction Contracts Act 2002 and/or by arbitration in accordance with the Arbitration Act 1996 or its replacement(s). 21.2 Any written notice given under this Contract shall be delivered by handing the notice to the other party, in person, leaving it at the address of the other party as stated in this Contract, or by sending it by registered post to the address of the other party as stated in this Contract. 21.3 The failure by either party to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect that party’s right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired. 21.4 These terms and conditions and any contract to which they apply shall be governed by the laws of New Zealand and are subject to the jurisdiction of the Auckland Courts of New Zealand. 21.5 Volt Works shall be under no liability whatsoever to the Client for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by Volt Works of these terms and conditions (alternatively Volt Works’ liability shall be limited to damages which under no circumstances shall exceed the Price of the Works). 21.6 Volt Works may licence and/or assign all or any part of its rights and/or obligations under this Contract without the Client’s consent. 21.7 The Client cannot licence or assign without the written approval of Volt Works. 21.8 Volt Works may elect to subcontract out any part of the Works but shall not be relieved from any liability or obligation under this Contract by so doing. Furthermore, the Client agrees and understands that they have no authority to give any instruction to any of Volt Works’ sub-contractors without the authority of Volt Works. 21.9 The Client agrees that Volt Works may amend their general terms and conditions for subsequent future contracts with the Client by disclosing such to the Client in writing. These changes shall be deemed to take effect from the date on which the Client accepts such changes, or otherwise at such time as the Client makes a further request for Volt Works to provide Works to the Client. 21.10 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party. 21.11 Both parties warrant that they have the power to enter into this Contract and have obtained all necessary authorisations to allow them to do so, they are not insolvent and that this Contract creates binding and valid legal obligations on them.
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