Parkinson & Holland Ltd - Terms & Conditions of Trade
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 “Parkinson & Holland” means Parkinson & Holland Ltd, its successors and assigns or any person acting on behalf of and with the authority of Parkinson & Holland Ltd.
1.3 “Client” means the person/s, entities or any person acting on behalf of and with the authority of the Client requesting Parkinson & Holland 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.
1.4 “Consultant’ shall mean the person or persons engaged by Parkinson & Holland to undertake work on the behalf of the Client.
1.5 “Incidental Items” means any goods, documents, designs, drawings or materials supplied, consumed, created or deposited incidentally by Parkinson & Holland in the course of it conducting, or supplying to the Client, any Services.
1.6 “Services” means all Services (including any advice and/or recommendations) supplied by Parkinson & Holland to the Client at the Client’s request from time to time.
1.7 "Confidential Information” means information of a confidential nature whether oral, written or in electronic form including, but not limited to, this Contract, either party’s intellectual property, operational information, know-how, trade secrets, financial and commercial affairs, contracts, client information (including but not limited to, “Personal Information” such as: name, address, D.O.B, occupation, driver’s license details, electronic contact (email, Facebook or Twitter details), medical insurance details or next of kin and other contact information (where applicable), previous credit applications, credit history) and pricing details.
1.8 “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 ordering from the 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 ordering Services via the website.
1.9 “Price” means the price payable (plus any Goods and Services Tax (“GST”) where applicable) for the Services as agreed between Parkinson & Holland and the Client in accordance with clause 5 of this Contract.
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 Services provided by Parkinson & Holland.
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 Services on credit shall not take effect until the Client has completed a credit application with Parkinson & Holland and it has been approved with a credit limit established for the account.
2.5 In the event that the supply of Services request exceeds the Clients credit limit and/or the account exceeds the payment terms, Parkinson & Holland reserves the right to refuse delivery.
2.6 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.
2.7 These terms and conditions may be meant to be read in conjunction with Parkinson & Holland’s Hire Form, and:
(a) where the context so permits, the terms ‘Incidental Items’ or ‘Services’ shall include any supply of Equipment, as defined therein; and
(b) if there are any inconsistencies between the two documents then the terms and conditions contained therein shall prevail.
2.8 Whilst Parkinson & Holland shall exercise due care and diligence, the Client accepts that Parkinson & Holland, its directors and employees, believe that the information provided to the Client is correct and that any calculations, estimates, conclusions or recommendations contained in any document are reasonably held or made as at the time of compilation. However, no warranty is made as the accuracy or reliability of any calculations, estimates, conclusions or recommendation (which may change with notice) or other information contained therein and, to the maximum extent permitted by law, Parkinson & Holland disclaims all liability and responsibility for any direct or indirect loss or damage which may be suffered by any recipient through relying on anything contained therein or omitted therefrom.
2.9 Where applicable, a detailed scope of the Services to be provided may be detailed in a quotation or accompanying letter.
2.10 The Client acknowledges and accepts that the Services or Incidental Items that have been prepared on the information and data available at this time (including, but not limited to building design, by-laws or other safety criteria, etc.). Should any of these factors change, then Parkinson & Holland cannot guarantee that the recommendations and/or estimated outcomes will still apply.
3. Errors and Omissions
3.1 The Client acknowledges and accepts that Parkinson & Holland 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 Parkinson & Holland 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 Parkinson & Holland 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 Parkinson & Holland; the Client shall not be entitled to treat this Contract as repudiated nor render it invalid.
4. Change in Control
4.1 The Client shall give Parkinson & Holland 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 Parkinson & Holland as a result of the Client’s failure to comply with this clause.
5. Price and Payment
5.1 At Parkinson & Holland’s sole discretion the Price shall be either:
(a) as indicated on any invoice provided by Parkinson & Holland to the Client; or
(b) the Price as at the date of delivery of the Services according to Parkinson & Holland’s current price list; or
(c) Parkinson & Holland’s quoted price (subject to clause 5.2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.
5.2 Parkinson & Holland reserves the right to change the Price:
(a) if a variation to the Services originally scheduled (including any applicable plans or specifications) is requested; or
(b) where additional Services are required due to the discovery of hidden or unidentifiable difficulties (including, but not limited to, poor weather conditions, delays in accessing the worksite, additional Services requested by the Client, prerequisite work by any third party not being completed) which are only discovered on commencement of the Services; or
(c) in the event of increases to Parkinson & Holland 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 Parkinson & Holland’s control.
5.3 Notwithstanding clause 5.2 the Client agrees and authorises variation adjustments to the Contract Price provided the overall cost of such variations from the time of the original quotation do not exceed, three thousand dollars ($3,000.00 including GST). All variations that exceed this limit will be submitted to the Client in writing detailing the reason for the variation, the impact on the Price, term and/or the scope of the Contract and must be approved by both parties before the Services will continue.
5.4 At Parkinson & Holland’s sole discretion a deposit may be required.
5.5 Time for payment for the Services being of the essence, the Price will be payable by the Client on the date/s determined by Parkinson & Holland, which may be:
(a) on delivery of the Services;
(b) by way of instalments/progress payments in accordance with Parkinson & Holland’s 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. Progress payment shall be made within twenty (20) working days of each monthly payment claim;
(c) payment for approved Clients shall be 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 Parkinson & Holland.
5.6 Payment may be made by bank cheque, electronic/on-line banking, credit card (a surcharge per transaction may apply), or by any other method as agreed to between the Client and Parkinson & Holland.
5.7 Parkinson & Holland may in its discretion allocate any payment received from the Client towards any invoice that Parkinson & Holland determines and may do so at the time of receipt or at any time afterwards. On any default by the Client Parkinson & Holland may re-allocate any payments previously received and allocated. In the absence of any payment allocation by Parkinson & Holland, payment will be deemed to be allocated in such manner as preserves the maximum value of Parkinson & Holland’s Purchase Money Security Interest (as defined in the PPSA) in the Services.
5.8 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 Parkinson & Holland nor to withhold payment of any invoice because part of that invoice is in dispute.
5.9 Unless otherwise stated the Price does not include GST. In addition to the Price, the Client must pay to Parkinson & Holland an amount equal to any GST Parkinson & Holland must pay for any supply by Parkinson & Holland under this or any other contract for providing Parkinson & Holland’s Services. 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.
6. Provision of the Services
6.1 At Parkinson & Holland’s sole discretion:
(a) the Services shall take place when the Services are supplied to the Client at the Client’s nominated address; and
(b) any Incidental Items shall be supplied to the Client at Parkinson & Holland’s address.
6.2 Delivery of the Services to a third party nominated by the Client is deemed to be delivery to the Client for the purposes of this Contract.
6.3 Parkinson & Holland may deliver the Services by separate instalments. Each separate instalment shall be invoiced and paid for in accordance with the provisions in these terms and conditions.
6.4 Any time specified by Parkinson & Holland for delivery of the Services is an estimate only and Parkinson & Holland 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 Services to be supplied at the time and place as was arranged between both parties. In the event that Parkinson & Holland is unable to supply the Services as agreed solely due to any action or inaction of the Client then Parkinson & Holland shall be entitled to charge a reasonable fee for re-supplying the Services at a later time and date.
7. Nominated Consultants
7.1 Parkinson & Holland may engage Consultants as specified in the quotation acting as agent on behalf of the Client and the following shall apply:
(a) Parkinson & Holland shall be entitled to enter into contracts with such Consultants in the name of the Client; and
(b) the Client shall be responsible for payments to Consultants; and
(c) where Parkinson & Holland pays the Consultant’s account on behalf of the Client, the Client shall reimburse Parkinson & Holland for the payment on the Consultant’s account together with an account-handling fee within fourteen (14) days from the date of submission of the account by Parkinson & Holland; and
(d) if the Client does not reimburse Parkinson & Holland within fourteen (14) days from the date of submission of the account in accordance with subparagraph (c) above, Parkinson & Holland shall be entitled to:
(i) charge interest at the rate specified in clause 16.1 from the date of payment of the Consultant’s account by Parkinson & Holland to the date of reimbursement to Parkinson & Holland by the Client; and/or
(ii) an accounting fee per month as stated in clause 16.2 on any outstanding monies due to Parkinson & Holland.
7.2 Parkinson & Holland does not warrant the accuracy or quality of the Consultant’s work or warrant that the recommendations of the Consultant are appropriate or adequate or are fit for their purpose or that they are not given negligently. The Client agrees that they shall not make any demand on Parkinson & Holland or commence any legal proceedings against Parkinson & Holland and Parkinson & Holland shall have no liability, whether in negligence or otherwise, to the Client in relation to any work performed by the Consultant.
8. Field Work
8.1 The Client shall ensure that Parkinson & Holland has clear and free access to the worksite at all times to enable them to undertake the Services. Parkinson & Holland 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 Parkinson & Holland.
8.2 It is the responsibility of the Client to ensure that access is suitable to accept the weight of laden trucks, or other heavy equipment as may be deemed necessary by Parkinson & Holland. The Client agrees to indemnify Parkinson & Holland against all costs incurred by Parkinson & Holland in recovering such vehicles in the event they become bogged or otherwise immovable.
8.3 Prior to Parkinson & Holland commencing any work the Client must advise Parkinson & Holland 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 site.
8.4 Whilst Parkinson & Holland will take all care to avoid damage to any underground services the Client agrees to indemnify Parkinson & Holland 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 8.1.
8.5 Drill cuttings shall not be removed from the site. These shall be either replaced in the hole or left nearby. Any drilling fluids shall be spread over the ground except where environmental or other constraints forbid this. Where special requirements are required to treat or dispose of such drilling fluid, then any associated treatment or disposal costs shall be at the Client’s expense where a provision for these have not allowed for in the quotation.
8.6 Where test pits are made, these shall be backfilled and wheel or track rolled by the backhoe/excavator. Any resulting surplus soil shall be mounded on the surface.
9.1 Irrespective of whether Parkinson & Holland retains ownership of any Incidental Items all risk for such items shall pass to the Client as soon as such items are delivered to the Client and shall remain with the Client until such time as Parkinson & Holland may repossess the Incidental Items. The Client must insure all Incidental Items on or before delivery.
9.2 Parkinson & Holland reserves its right to seek compensation or damages for any damage, destruction or loss suffered in relation to the Incidental Items as a result of the Client’s failure to insure in accordance with clause 9.1.
9.3 Parkinson & Holland may at its discretion notify the Client that it requires to store at the site plant, equipment and inspection equipment and tools, or plant and tools required for the provision of Services, in which event the Client shall supply Parkinson & Holland a safe area for storage and shall take all reasonable efforts to protect all items so stored from possible destruction, theft or damage. In the event that any such items are destroyed, stolen or damaged then the cost of repair or replacement shall be the Client’s responsibility.
9.4 Parkinson & Holland shall be entitled to rely on the accuracy of any plans, reports, 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, Parkinson & Holland accepts no responsibility for any loss, damages, or costs however resulting from these inaccurate plans, reports, specifications or other information.
10. Compliance with Laws
10.1 The Client and Parkinson & Holland shall comply with the provisions of all statutes (Environmental Protection Authority Act 2011 (EPA) and subsequent amendments), regulations and bylaws of government, local and other public authorities that may be applicable to the Services, including and any WorkSafe health and safety laws relating or any other relevant safety standards or legislation pertaining to the Services particularly those in relation to hazardous materials and the safe removal and disposal of the same.
10.2 Notwithstanding clause 10.1 and pursuant to the Health & Safety at Work Act 2015 (the “HSW Act”) Parkinson & Holland agrees to at all times 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 if in the event that they may be acting as a sub-contractor for the Client who has engaged a thirty party head contractor.
10.3 The Client shall obtain (at the expense of the Client) all certificates, licenses, permits and approvals that may be required for the supply of the Services.
11.1 Parkinson & Holland and the Client agree that where it is intended that the ownership of Incidental Items is to pass to the Client that such ownership shall not pass until:
(a) the Client has paid Parkinson & Holland all amounts owing for the Services; and
(b) the Client has met all other obligations due by the Client to Parkinson & Holland in respect of all contracts between Parkinson & Holland and the Client.
11.2 Receipt by Parkinson & Holland 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 and until then Parkinson & Holland’s ownership or rights in respect of the Incidental Items shall continue.
11.3 It is further agreed that:
(a) the Client is only a bailee of the Incidental Items and must return the Incidental Items to Parkinson & Holland immediately upon request by Parkinson & Holland;
(b) the Client holds the benefit of the Client’s insurance of the Incidental Items on trust for Parkinson & Holland and must pay to Parkinson & Holland the proceeds of any insurance in the event of the Incidental Items being lost, damaged or destroyed;
(c) the Client must not sell, dispose, or otherwise part with possession of the Incidental Items. If the Client sells, disposes or parts with possession of the Incidental Items then the Client must hold the proceeds of sale of the Incidental Items on trust for Parkinson & Holland and must pay or deliver the proceeds to Parkinson & Holland on demand;
(d) the Client should not convert or process the Incidental Items 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 Parkinson & Holland and must dispose of or return the resulting product to Parkinson & Holland as Parkinson & Holland so directs;
(e) the Client shall not charge or grant an encumbrance over the Incidental Items nor grant nor otherwise give away any interest in the Incidental Items while they remain the property of Parkinson & Holland;
(f) the Client irrevocably authorises Parkinson & Holland to enter any premises where Parkinson & Holland believes the Incidental Items are kept and recover possession of the Incidental Items.
12. Personal Property Securities Act 1999 (“PPSA”)
12.1 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 Incidental Items and/or collateral (account) – being a monetary obligation of the Client to Parkinson & Holland for Services – that have previously been supplied and that will be supplied in the future by Parkinson & Holland to the Client.
12.2 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 Parkinson & Holland may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register;
(b) indemnify, and upon demand reimburse, Parkinson & Holland for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register or releasing any Incidental Items charged thereby;
(c) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Incidental Items and/or collateral (account) in favour of a third party without the prior written consent of Parkinson & Holland.
12.3 Parkinson & Holland and the Client agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms and conditions.
12.4 The Client waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA.
12.5 Unless otherwise agreed to in writing by Parkinson & Holland, the Client waives its right to receive a verification statement in accordance with section 148 of the PPSA.
12.6 The Client shall unconditionally ratify any actions taken by Parkinson & Holland under clauses 12.1 to 12.5.
12.7 Subject to any express provisions to the contrary (including those contained in this clause 12), nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.
13. Security and Charge
13.1 In consideration of Parkinson & Holland agreeing to supply Services, 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).
13.2 The Client indemnifies Parkinson & Holland from and against all Parkinson & Holland’s costs and disbursements including legal costs of a solicitor and own client basis incurred in exercising Parkinson & Holland’s rights under this clause.
13.3 The Client irrevocably appoints Parkinson & Holland and each director of Parkinson & Holland as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 13 including, but not limited to, signing any document on the Client’s behalf.
14.1 The Client shall inspect the Services on delivery and shall within seven (7) days of delivery notify Parkinson & Holland of any alleged defect, shortage in quantity, errors, omissions or failure to comply with the description or quote. The Client shall afford Parkinson & Holland an opportunity to inspect the Services within a reasonable time following delivery if the Client believes the Services are defective in any way. If the Client shall fail to comply with these provisions, the Services shall be conclusively presumed to be in accordance with the terms and conditions and free from any defect or damage.
14.2 For defective Services, which Parkinson & Holland has agreed in writing that the Client is entitled to reject, Parkinson & Holland’s liability is limited to either (at Parkinson & Holland’s discretion) replacing the Services or rectifying the Services provided that the Client has complied with the provisions of clause 14.1.
15. Intellectual Property and Confidentiality
15.1 Each party agrees to treat all information and ideas communicated to it by the other confidentially and agree not to divulge it to any third party, without the other party's written consent. The parties will not copy any such information supplied, and will either return it or destroy it (together with any copies thereof) on request of the other party.
15.2 Where Parkinson & Holland has designed, drawn or developed Incidental Items for the Client, then the copyright in any Incidental Items shall remain the property of Parkinson & Holland. Under no circumstances may such designs, drawings and documents be used without the express written approval of Parkinson & Holland.
15.3 Where Parkinson & Holland allows the Client to have a licence to use any documentation mentioned in clause 15.1, and the Client is in breach of their financial obligations to Parkinson & Holland, Parkinson & Holland shall reserve the right to rescind the licence and request the return of the documentation and copies thereof.
15.4 The Client warrants that all designs, specifications or instructions given to Parkinson & Holland will not cause Parkinson & Holland to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify Parkinson & Holland against any action taken by a third party against Parkinson & Holland in respect of any such infringement.
15.5 The Client agrees that Parkinson & Holland may (at no cost) use for the purposes of marketing or entry into any competition, any Incidental Items which Parkinson & Holland has created for the Client.
16. Default and Consequences of Default
16.1 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 Parkinson & Holland’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
16.2 If the Client owes Parkinson & Holland any money the Client shall indemnify Parkinson & Holland from and against all costs and disbursements incurred by Parkinson & Holland in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, Parkinson & Holland’s collection agency costs, and bank dishonour fees).
16.3 Further to any other rights or remedies Parkinson & Holland may have under this Contract, if a Client has made payment to Parkinson & Holland, 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 Parkinson & Holland under this clause 16, 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.
16.4 Without prejudice to Parkinson & Holland’s other remedies at law Parkinson & Holland shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to Parkinson & Holland shall, whether or not due for payment, become immediately payable if:
(a) any money payable to Parkinson & Holland becomes overdue, or in Parkinson & Holland’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 Parkinson & Holland;
(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.
17.1 Without prejudice to any other remedies Parkinson & Holland may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions Parkinson & Holland may suspend or terminate the supply of Services to the Client. Parkinson & Holland will not be liable to the Client for any loss or damage the Client suffers because Parkinson & Holland has exercised its rights under this clause.
17.2 Parkinson & Holland may cancel any contract to which these terms and conditions apply or cancel delivery of Services at any time before the Services are commenced by giving written notice to the Client. On giving such notice Parkinson & Holland shall repay to the Client any money paid by the Client for the Services. Parkinson & Holland shall not be liable for any loss or damage whatsoever arising from such cancellation.
17.3 In the event that the Client cancels delivery of the Services the Client shall be liable for any and all loss incurred (whether direct or indirect) by Parkinson & Holland as a direct result of the cancellation (including, but not limited to, any loss of profits).
18.1 All emails, documents, images or other recorded information held or used by Parkinson & Holland is Personal Information as defined and referred to in clause 18.3 and therefore considered confidential. Parkinson & Holland acknowledges its obligation in relation to the handling, use, disclosure and processing of Personal Information pursuant to the Privacy Act 1993 (“the Act”) including Part II of the OECD Guidelines and as set out in Schedule 5A of the Act and any statutory requirements where relevant in a European Economic Area “EEA” then the EU Data Privacy Laws (including the General Data Protection Regulation “GDPR”) (collectively, “EU Data Privacy Laws”). Parkinson & Holland acknowledges that in the event it becomes aware of any data breaches and/or disclosure of the Clients Personal Information, held by Parkinson & Holland that may result in serious harm to the Client, Parkinson & Holland will notify the Client in accordance with the Act and/or the GDPR. Any release of such Personal Information must be in accordance with the Act and the GDPR (where relevant) and must be approved by the Client by written consent, unless subject to an operation of law.
18.2 Notwithstanding clause 18.1, privacy limitations will extend to Parkinson & Holland in respect of Cookies where transactions for purchases/orders transpire directly from Parkinson & Holland’s website. Parkinson & Holland 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 Parkinson & Holland when Parkinson & Holland sends an email to the Client, so Parkinson & Holland may collect and review that information (“collectively Personal Information”)
In order to enable / disable the collection of Personal Information by way of Cookies, 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 proceeding with a purchase/order via Parkinson & Holland’s website.
18.3 The Client authorises Parkinson & Holland or Parkinson & Holland’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 Parkinson & Holland from the Client directly or obtained by Parkinson & Holland 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.
18.4 Where the Client is an individual the authorities under clause 18.3 are authorities or consents for the purposes of the Privacy Act 1993.
18.5 The Client shall have the right to request Parkinson & Holland for a copy of the Personal Information about the Client retained by Parkinson & Holland and the right to request Parkinson & Holland to correct any incorrect Personal Information about the Client held by Parkinson & Holland.
19. Suspension of Works
19.1 Where the Contract is subject to the Construction Contracts Act 2002, the Client hereby expressly acknowledges that:
(a) Parkinson & Holland 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 5.5 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 Parkinson & Holland by a particular date; and
(iv) Parkinson & Holland has given written notice to the Client of its intention to suspend the carrying out of construction work under the construction agreement.
(b) if Parkinson & Holland 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 Parkinson & Holland exercises the right to suspend work, the exercise of that right does not:
(i) affect any rights that would otherwise have been available to Parkinson & Holland 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 Parkinson & Holland suspending work under this provision;
(d) due to any act or omission by the Client, the Client effectively precludes Parkinson & Holland from continuing the Services or performing or complying with Parkinson & Holland’s obligations under this Contract, then without prejudice to Parkinson & Holland’s other rights and remedies, Parkinson & Holland may suspend the Services 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 Services is based. All costs and expenses incurred by Parkinson & Holland 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, Parkinson & Holland suspends the Services and the default that led to that suspension continues un-remedied subject to clause 19.1 for at least ten (10) working days, Parkinson & Holland shall be entitled to terminate the Contract, in accordance with clause 19.
20. Dispute Resolution
20.1 If a dispute arises between the parties to this Contract then either party shall send to the other party a notice of dispute in writing adequately identifying and providing details of the dispute. Within fourteen (14) days after service of a notice of dispute, the parties shall confer at least once, to attempt to resolve the dispute. At any such conference each party shall be represented by a person having authority to agree to a resolution of the dispute. In the event that the dispute cannot be so resolved either party may by further notice in writing delivered by hand or sent by certified mail to the other party refer such dispute to arbitration. The arbitration should be 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.
21. Limitation of Liability
21.1 Except as is specified in clause 14, the liability limitations of Parkinson & Holland, it partners, associates, and employees shall exclude any indirect loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by Parkinson & Holland of these terms and conditions.
21.2 The maximum liability of Parkinson & Holland under this Contract shall at no time exceed the amount of Professional Indemnity insurance cover carried by Parkinson & Holland.
21.3 The Client agrees to indemnify Parkinson & Holland, (including its partners, associates or employees) and any other person who may be sought to be made liable in excess of the limit of liability described in clause 21.1 in respect of any activity arising from, or connected with, this Contract in respect of any claim of whatsoever kind, that may be made by any person and any costs and expenses that may be incurred by Parkinson & Holland.
21.4 The liability of Parkinson & Holland to the Client shall expire twelve (12) months from the issue of the last invoice relevant to the particular project, unless in the meantime the Client has made a claim in writing to Parkinson & Holland, specifying a negligent act, omission or statement said to have caused alleged loss or damage sustained or sustainable.
22. Service of Notices
22.1 Any written notice given under this Contract shall be deemed to have been given and received:
(a) by handing the notice to the other party, in person;
(b) by leaving it at the address of the other party as stated in this Contract;
(c) by sending it by registered post to the address of the other party as stated in this Contract;
(d) if sent by facsimile transmission to the fax number of the other party as stated in this Contract (if any), on receipt of confirmation of the transmission;
(e) if sent by email to the other party’s last known email address.
22.2 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.
23.1 If the Client at any time upon or subsequent to entering in to the Contract is acting in the capacity of trustee of any trust (“Trust”) then whether or not Parkinson & Holland may have notice of the Trust, the Client covenants with Parkinson & Holland as follows:
(a) the Contract extends to all rights of indemnity which the Client now or subsequently may have against the Trust and the trust fund;
(b) the Client has full and complete power and authority under the Trust to enter into the Contract and the provisions of the Trust do not purport to exclude or take away the right of indemnity of the Client against the Trust or the trust fund. The Client will not release the right of indemnity or commit any breach of trust or be a party to any other action which might prejudice that right of indemnity.
(c) the Client will not without consent in writing of Parkinson & Holland (Parkinson & Holland will not unreasonably withhold consent), cause, permit, or suffer to happen any of the following events;
(i) the removal, replacement or retirement of the Client as trustee of the Trust;
(ii) any alteration to or variation of the terms of the Trust;
(iii) any advancement or distribution of capital of the Trust; or
(iv) any resettlement of the trust property.
24.1 If the Client is acquiring Services 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 Services by Parkinson & Holland to the Client.
24.2 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.
24.3 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 Manukau District Courts of New Zealand.
24.4 Parkinson & Holland may licence and/or assign all or any part of its rights and/or obligations under this Contract without the Client’s consent.
24.5 The Client cannot licence or assign without the written approval of Parkinson & Holland.
24.6 Parkinson & Holland 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 Parkinson & Holland’s sub-contractors without the authority of Parkinson & Holland.
24.7 The Client agrees that Parkinson & Holland 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 Parkinson & Holland to provide Services to the Client.
24.8 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.
24.9 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.