TERMS & CONDITIONS
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 “Cougar” means Cougar Scaffolding Limited T/A Cougar Scaffolding, its successors and assigns or any person acting on behalf of and with the authority of Cougar Scaffolding Limited T/A Cougar Scaffolding.
1.3 “Client” means the person/s, entities or any person acting on behalf of and with the authority of the Client requesting Cougar 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 “Equipment” shall mean all Equipment supplied on hire by Cougar to the Client, at the Client’s request from time to time, and:
(a) includes any erection, dismantling and transport of the Equipment (“Services”), any parts, accessories and/or consumables supplied by Cougar to the Client, either separately or deposited incidentally by Cougar in the course of it conducting, or supplying to the Client, the Equipment; and
(b) where the context so permits the terms ‘Equipment’ or ‘Services’ shall be interchangeable for the other.
1.5 The Equipment shall be as described on the invoices, quotation, authority to hire, or any other work authorisation forms as provided by Cougar to the Client.
1.6 “Minimum Hire Period” shall mean the Minimum Hire Period as described on the invoices, quotation, authority to hire, or any other forms as provided by Cougar to the Client.
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 Cougar and the Client in accordance with clause 6 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 Cougar.
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 Services on credit shall not take effect until the Client has completed a credit application with Cougar and it has been approved with a credit limit established for the account; and
(b) in the event that the supply of Services request exceeds the Clients credit limit and/or the account exceeds the payment terms, Cougar reserves the right to refuse delivery; and
(c) Cougar may, at Cougar’s sole discretion, charge an administration fee for the setup of new credit accounts.
2.5 Any advice, recommendation, information, assistance or service provided by Cougar in relation to Equipment supplied is given in good faith, is based on Cougar’s own knowledge and experience and shall be accepted without liability on the part of Cougar and it shall be the responsibility of the Client to confirm the accuracy and reliability of the same in light of the use to which the Client makes or intends to make of the Equipment.
2.6 Cougar will:
(a) ensure that all completed standing scaffolds be tagged with an Aculog Scaffold Tag System certifying that the scaffolds are complete and safe to use; and
(b) regularly inspect all standing scaffolds prior to the Services commencing as per the Health and Safety requirements.
2.7 The Client acknowledges and accepts:
(a) a product supply of shrink wrap from a third-party supplier offers a manufacturer’s guarantee of UV protection and can withstand strong gale force winds in accordance with the third-party supplier’s terms. Cougar will not be liable for any damage to property as a result of product failure from the third-party supplier. Cougar reserves the right to charge for the Equipment to be reinstated in a safe manner; and
(b) that following the handover of the certified Equipment to the Client, it shall be the Client’s responsibility to check the Equipment before each use. If the Equipment is deemed to be damaged, altered or appears unsafe it should not be used and Cougar is to be notified; and
(c) Cougar reserves the right to remove the Equipment without prejudice should the Equipment be considered to be unsafe due to washout, erosion, inclement weather and wind, upon such action this shall not be deemed to be a breach of Contract. Cougar will not accept any claim for in respect of any consequential loss to the Client that may result from such an event; and
(d) Cougar shall be entitled to charge for additional cost in labour where Cougar’s employees and/or subcontractors are required to attend a compulsory induction course on the site, prior to commencement of the Services. The cost for additional labour will be calculated from the time that the course commences, Induction training attendances will be detailed on invoices issued in accordance with clause 6.2.
2.8 In the event that Client is required to provide additional Services not included in the original quotation, Cougar reserves the right to charge the Client additional hire and labour costs (penalty rates will apply), unless otherwise agreed between Cougar and the Client.
2.9 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 Cougar 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 Cougar 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 Cougar 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 willful misconduct of Cougar; the Client shall not be entitled to treat this Contract as repudiated nor render it invalid.
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 Cougar as the Client’s duly authorised representative, that once introduced that person shall have the full authority of the Client to order any Equipment, and/or to request any variation thereto, on the Client’s behalf (such authority to continue until all requested Equipment has been returned to Cougar, or the Client otherwise notifies Cougar 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 Cougar 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 Cougar for all additional costs incurred by Cougar (including Cougar’s profit margin) in providing any Equipment, or variation/s thereto, 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 Cougar 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 Cougar as a result of the Client’s failure to comply with this clause.
6. Price and Payment
6.1 At Cougar’s sole discretion the Price shall be either:
(a) as indicated on any invoice provided by Cougar to the Client; or
(b) Cougar’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 fourteen (14) days.
6.2 Cougar reserves the right to change the Price:
(a) if a variation to the Equipment which is to be supplied is requested;
(b) if a variation to the Services originally scheduled (including any applicable plans, erection and dismantle charges, site requirements or specifications) is requested;
(c) if variations which are beyond Cougar’s control occur (such as the cost of materials, labour, taxes, levies, duties, insurance and/or freight etc.)
(d) where additional Equipment/Services are required due to the discovery of hidden or unidentifiable difficulties (including, but not limited to, poor weather/environmental conditions, limitations to accessing the site, any subsidence of ground conditions, availability of machinery, protruding or dismantled form-work, re-positioning or adjusting the Equipment, due to sub contractor’s moving planks , additional site visits required, safety considerations, prerequisite work by any third party not being completed etc.) which are only discovered on commencement of the services.
6.3 Variations will be charged for on the basis of Cougar’s quotation, and will be detailed in writing, and shown as variations on Cougar’s invoice. The Client shall be required to respond to any variation submitted by Cougar within ten (10) working days. Failure to do so will entitle Cougar 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 Cougar’s sole discretion a deposit may be required.
6.5 Time for payment for the Services being of the essence, the Price will be payable by the Client on the date/s determined by Cougar, which may be:
(a) on completion of the Services;
(b) payment for approved Clients shall be due twenty (20) days following the end of the month in which an invoice is emailed to the Client’s email address or the email address of the Client’s authorised representative;
(c) the date specified on any invoice or other form as being the date for payment; or
(d) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Client by Cougar.
6.6 No allowance has been made in the Price for the deduction of retention's. In the event that retention's are made, Cougar reserves the right to treat all retention's as placing the Client’s account into default.
6.7 Payment may be made by electronic/on-line banking, credit card (a surcharge per transaction may apply), or by any other method as agreed to between the Client and Cougar.
6.8 Cougar may in its discretion allocate any payment received from the Client towards any invoice that Cougar determines and may do so at the time of receipt or at any time afterwards. On any default by the Client Cougar may re-allocate any payments previously received and allocated. In the absence of any payment allocation by Cougar, payment will be deemed to be allocated in such manner as preserves the maximum value of Cougar’s Purchase Money Security Interest (as defined in the PPSA) in the Services.
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 Cougar nor to withhold payment of any invoice because part of that invoice is in dispute unless the request for payment by Cougar is a claim made under the Construction Contracts Act 2002.
6.10 The Client acknowledges and agrees that the Client’s obligations to Cougar for the supply of Equipment on hire shall not cease until:
(a) the Client has paid Cougar all amounts owing for the hire of the Equipment; and
(b) the Client has met all other obligations due by the Client to Cougar in respect of all contracts between Cougar and the Client.
6.11 Unless otherwise stated the Price does not include GST. In addition to the Price, the Client must pay to Cougar an amount equal to any GST Cougar must pay for any supply by Cougar under this or any other agreement for providing Cougar’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.
7. Hire Period
7.1 Hire charges shall commence from the time the scaffolding is erected and certified for use by the Client and shall continue until the Client advises Cougar that the scaffold is “Off hired” Where the Client informs Cougar of such “Off Hire”, this must be done so by way of email. In the case where the Client revokes the off hire notice or has continued to use the scaffolding after the off hiring period has occurred then the hire charges shall continue without interruption until the actual end of the Hire Period or until the expiry of the Minimum Hire Period, whichever last occurs.
7.2 The date upon which the Client advises of termination shall in all cases be treated as a full day’s hire.
7.3 Where the Client disputes the completion date of the hire period, the Client will be required to notify Cougar of said dispute in writing immediately.
7.4 No allowance whatever can be made for time during which the Equipment is not in use for any reason, unless Cougar confirms special prior arrangements in writing. In the event of Equipment breakdown provided the Client notifies Cougar 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.
7.5 Where the Client uses the Equipment before the agreed commencement of the Hire Period, Cougar shall deem the Hire Period to begin at time the Client uses the Equipment.
8. Delivery of Equipment
8.1 At Cougar’s sole discretion, delivery of the Equipment (“Delivery”) shall take place when:
(a) the Client or the Client’s nominated carrier takes possession of the Equipment at Cougar’s address; or
(b) the Equipment is delivered by Cougar, or Cougar’s nominated carrier, to the Client’s nominated delivery address (even if the Client is not present at the address).
8.2 At Cougar’s sole discretion, the cost of delivery is either included in the Price or in addition to the Price.
8.3 The Client shall make all arrangements necessary to take delivery of the Equipment whenever it is tendered for delivery. In the event that the Client is unable to take delivery of the Equipment as arranged then Cougar shall be entitled to charge a reasonable fee for re delivery.
8.4 Cougar may deliver the Equipment in separate installments.
8.5 Any time or date specified by Cougar for Delivery is an estimate only and Cougar 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 Equipment to be supplied at the time and place as was arranged between both parties. In the event that Cougar is unable to supply the Equipment as agreed solely due to any action or inaction of the Client then Cougar shall be entitled to charge a reasonable fee for re-supplying the Equipment at a later time and date.
9.1 Cougar retains property in the Equipment nonetheless; all risk for the Equipment passes to the Client on delivery.
9.2 The Client accepts full responsibility for the safekeeping of the Equipment and indemnifies Cougar for all loss theft or damage to the Equipment howsoever caused and without limiting the generality of the foregoing whether or not such loss, theft, or damage is attributable to any negligence, failure, or omission of the Client.
9.3 The Client will insure, or self insure, Cougar’s interest in the Equipment 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 arising out 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.
9.4 The Client accepts full responsibility for and shall keep Cougar indemnified against all liability in respect of all actions, proceedings, claims, damages, costs and expenses in respect of any injury to persons, damage to property, or otherwise arising out of the use of the Equipment during the hire period and whether or not arising from any negligence, failure or omission of the Client or any other persons.
9.5 Cougar shall be entitled to rely on the accuracy of any plans, specifications and other information provided by the Client for the purposes of estimating quantities and type of Equipment required. The Client acknowledges and agrees that in the event that any of this information provided by the Client is inaccurate, Cougar accepts no responsibility for any loss, damages, or costs however resulting from these inaccurate plans, specifications or other information.
9.6 In the event of damage to buildings, vehicles and other property as a result of any action by Cougar’s employees or contractors, Cougar must be informed of this within twenty-four (24) hours for an investigation to commence. Cougar may inspect such damage before any agreement to rectification costs can be accepted. No claims shall be accepted where third-party contractors and subcontractors are using the Equipment without notifying Cougar.
9.7 Any Equipment that is erected or dismantled by Cougar’s trained and licensed employees or contractors shall be as per the manufacturers and New Zealand Codes of Practice requirements. The Client acknowledges and accepts that Cougar shall not be liable in any way for any claim made in connection with the erection and dismantling of the Equipment by non-Cougar employees or contractors.
10. Access and Installation
10.1 The Client shall ensure that Cougar has clear and free access to the nominated delivery address to enable Cougar to install and/or dismantle the Equipment, and Cougar agrees at the time of completion thereof to carry out in a reasonable way the clean-up of the site where scaffolding was installed. Furthermore, it is acknowledged that it is unreasonable to expect the clean-up to restore the property to its pre-existing condition, especially in the event where existing grass has died off due to the covering of base blocks to establish foundation support for the Equipment, such damage will remain the Client’s responsibility.
10.2 The Client acknowledges and accepts that where the Equipment is required to be tied to the building structure, with ties at each scaffold lift, using either bolts, pins or screw eyes, the subsequent repairs of theses holes and/or repainting shall be the responsibility of the Client.
10.3 The quotation is based upon wire ties and/or bolted scaffold ties to secure the Equipment to the building and the construction procedures must allow for these ties to remain in position whilst the Equipment is in use.
10.4 It shall be the Client’s responsibility to ensure that where Equipment is installed on concreted areas, patios, driveways, timber decks and roofing that have suitable coverings put in place to help prevent any marking/staining of the finished product. Cougar 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, including damage to shrubs, plants and other vegetation,) unless due to what both parties agree is negligence by Cougar;.
10.5 The Client shall ensure that the nominated delivery address is cleared and ready for installation of the Equipment prior to delivery of the Equipment, and that the foundations upon which Cougar is to install the Equipment is sufficiently firm and otherwise suitable to safely carry the structure and the load to be put on it without subsidence. The Client will be liable to Cougar for any loss, costs or damages which Cougar may suffer or incur by reason of the Client’s failure to carry out its obligations here-under if Cougar is unable or unwilling to install the Equipment due to the site not being cleared and ready as a foresaid. Nevertheless, the Client shall be liable to pay the costs on the hire of the Equipment on the terms stated herein. Where additional site visits are required to review the condition of the site for the installation of the Equipment, this shall be charged to the Client, in accordance with clause 6.2.
10.6 The Client shall provide access at any time for Cougar to be able to inspect the Equipment on the site (or wherever the Equipment may be located).
10.7 Any Equipment above five metres (5m) high may only be erected, altered or dismantled under the supervision of a scaffolder holding a certificate of competency or license that may be required by any legislation or local regulatory authority for the purpose of the erection or the dismantling of the Equipment or Cougar.
10.8 If during the course of the Client’s work, the Equipment is modified or removed by the Client to the extent the Equipment is no longer compliant with the applicable legislative requirements, any rectification work performed by Cougar will be at the Client’s expense.
10.9 The Client acknowledges and agrees that:
(a) Cougar’s erect and dismantle quotation, unless otherwise agreed, does not allow for subsequent visits to the site to adjust or alter the Equipment, any additional rectification services will be charged as an extra; and
(b) any standing scaffold over five metres (5m) high or intended to extend over five metres (5m) high requires Cougar and the people intending to use the scaffold to provide a notification to WorkSafe prior to any services commencing; and
(c) in the event Cougar require access, in order to erect, alter or dismantle the Equipment, to an adjoining or adjacent property or land to the nominated site, that is not owned by the Client, then it is the Client’s responsibility to gain permission from the land owner to use the above mentioned property throughout the erection, alteration or dismantling of the Equipment. In the event the land owner denies access or use of the land or property, the Client shall be liable for all costs incurred by Cougar in gaining permission to access and/or use the property through any legal process that may be deemed necessary.
10.10 The Client shall be responsible for:
(a) confirming with the relevant authorities, and providing the relevant documentation to Cougar, that all power cables are safe within four metres (4m) of the intended Equipment prior to the services commencing; and
(b) providing Cougar, while at the site, with adequate access to available water, electricity, toilet and washing facilities unless catered for within the Contract preliminary in general.
11. Fixation of Equipment to Land or Buildings
11.1 If the Equipment or any part thereof is affixed to any land or buildings pursuant to this agreement, and the land or buildings are or become the subject of a mortgage or charge whether under the PPSA or otherwise at law, then the Client shall, without first receiving any request from Cougar, obtain the written acknowledge of the mortgagee or charge-hold (as the case may be) that:
(a) the Equipment or any part thereof is not a fixture for the purposes of the mortgage or charge;
(b) that the mortgagee or charge-holder will not make any claim in relation to the Equipment or any part therefore; and
(c) that the mortgagee or charge-holder will permit Cougar (whether or not there has been any default under the mortgage or charge) to enter upon the land or buildings and to remove the Equipment or part thereof.
12. Client’s Responsibilities
12.1 The Client shall:
(a) maintain the Equipment as is required by Cougar;
(b) notify Cougar immediately by telephone in the first instance of the full circumstances of any mechanical breakdown or accident in connection with the Equipment. A required follow up email within four (4) hours detailing the breakdown or fault in the Equipment will required from the Client to Cougar. The Client is not absolved from the requirements to safeguard the Equipment by giving such notification;
(c) satisfy itself prior to taking delivery of the Equipment that the Equipment is suitable for its purposes;
(d) use the Equipment safely, strictly in accordance with the law, only for its intended use, and in accordance with any manufacturer’s instruction, whether supplied by Cougar or posted on the Equipment;
(e) ensure that all persons erecting or using the Equipment are suitably instructed in its safe and proper use, and where necessary, hold a current certificate of competency and/or are fully licensed;
(f) comply with all occupational health and safety laws relating to the Equipment and its use;
(g) keep the Equipment in their own possession and control and shall not assign the benefit of the hire Contract nor be entitled to take a lien, or grant any encumbrance over the Equipment;
(h) not alter or make any additions to the Equipment including but without limitation defacing or erasing any identifying mark, plate or number on or in the Equipment or in any other manner interfere with the Equipment;
(i) employ the Equipment solely in its own work and not permit the Equipment of any part thereof to be used by any other party for any other work;
(j) ensure all overhead power likely to cause a hazard or adversely affect the installation of Equipment is turned off prior to the installation of the equipment
(k) ensure that no digging or excavation work is performed near or under the Equipment during the installation or once the Equipment is installed
(l) not exceed the recommended or legal load and capacity limits of the Equipment;
(m) not use or carry any illegal, prohibited or dangerous substance on the Equipment;
(n) not fix any of the Equipment in such a manner as to make it legally a fixture forming part of any freehold;
(o) on termination of the hire, deliver up the Equipment complete with all parts and accessories clean and in good order as delivered, fair wear and tear accepted, to Cougar.
12.2 Immediately on request by Cougar the Client will pay:
(a) the new list price of any Equipment, accessories or consumables that are for whatever reason destroyed, written off or not returned to Cougar;
(b) all costs incurred in cleaning the Equipment;
(c) all costs of repairing any damage caused by:
(i) the ordinary use of the Equipment up to an amount equal to ten percent (10%) of the new list price of the Equipment;
(ii) willful or negligent actions of the Client or the Client’s employees;
(iii) vandalism, or (in Cougar’s reasonable opinion) in any way whatsoever other than by the ordinary use of the Equipment by the Client;
(d) the cost of fuels and consumables provided by Cougar and used by the Client;
(e) any costs incurred by Cougar in dismantling the Equipment and returning it to Cougar’s premises if the Client does not return the Equipment to Cougar’s premises or any pre-agreed pickup location when it was originally agreed that the Client would do so;
(f) any lost hire fees Cougar would have otherwise been entitled to for the Equipment, under this, or any other hire agreement;
(g) any insurance excess payable in relation to a claim made by either the Client or Cougar 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 Cougar.
12.3 Cougar may terminate the hire Contract, without being liable for damages for doing so, if:
(a) the Client defaults in the punctual payment of any monies due;
(b) the Client fails to observe or perform any condition in this, or any other uncompleted hire Contract between Cougar and the Client;
(c) the Client is declared bankrupt, or an official manager is appointed to any of the Client’s assets;
(d) the Client applies to take benefit of any law for the relief of bankrupt or insolvent debtors, compounds with their creditors, or makes an assignment of their remuneration for their benefit.
12.4 Only to the extent that the hire of the Equipment exceeds a twelve (12) month hire period (or a six (6) month hire period with the right of renewal) shall clause 15 apply and will constitute a security agreement in the form of a PPS Lease in respect of Section 36 of the PPSA, in all other matters clause 15 will apply generally for the purposes of the PPSA. The Client agrees that Cougar may register a security interest as a Purchase Money Security Interest (“PMSI”) for the purposes of the PPSA in favour of the Owner over the Equipment supplied.
13. Compliance with Laws
13.1 The Client and Cougar shall comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities that may be applicable to the Equipment including but not limited to, the Good Practice Guidelines for scaffolding / edge fall protection / fall through protection) as outlined in the Scaffolding In New Zealand published by WorkSafe and any WorkSafe health and safety laws relating or any other relevant safety standards or legislation pertaining to the Equipment/services.
13.2 Notwithstanding clause 13.1 and pursuant to the Health & Safety at Work Act 2015 (the “HSW Act”) Cougar agrees at all times comply with sections 29 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 subcontractor for the Client’s where the Client has engaged a thirty party head contractor.
13.3 The Client shall obtain (at the expense of the Client) all engineering reports, certificates, and all licenses, permits, approvals and traffic management plan approvals that may be required for the supply of Equipment/services.
14.1 If the Client fails to return the Equipment to Cougar then Cougar or Cougar’s agent may (as the invitee of the Client) enter upon and into land and premises owned, occupied or used by the Client, or any premises where the Equipment is situated and take possession of the Equipment, without being responsible for any damage thereby caused.
14.2 The Client is not authorised to pledge Cougar’s credit for repairs to the Equipment or to create a lien over the Equipment in respect of any repairs.
15. Personal Property Securities Act 1999 (“PPSA”)
15.1 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 Cougar for Services – that have previously been supplied and that will be supplied in the future by Cougar to the Client.
15.2 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 Cougar may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register;
(b) indemnify, and upon demand reimburse, Cougar 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 Cougar.
15.3 Cougar and the Client agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms and conditions.
15.4 The Client waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA.
15.5 Unless otherwise agreed to in writing by Cougar, the Client waives its right to receive a verification statement in accordance with section 148 of the PPSA.
15.6 The Client shall unconditionally ratify any actions taken by Cougar under clauses 15.1 to 15.5.
15.7 Subject to any express provisions to the contrary (including those contained in this clause 15), nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.
16. Security and Charge
16.1 In consideration of Cougar 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).
16.2 The Client indemnifies Cougar from and against all Cougar’s costs and disbursements including legal costs of a solicitor and own client basis incurred in exercising Cougar’s rights under this clause.
16.3 The Client irrevocably appoints Cougar and each director of Cougar as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 16 including, but not limited to, signing any document on the Client’s behalf.
17.1 The Client shall be required to be on site to inspect the Equipment on completion of the installation and shall, prior to signing the Handover Certificate, notify Cougar of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote within twenty-four (24) hours of Delivery. The Client shall afford Cougar an opportunity to inspect the Equipment within a reasonable time following delivery if the Client believes the Equipment is defective in any way. If the Client shall fail to comply with these provisions the Equipment shall be presumed to be free from any defect or damage. For defective Equipment, which Cougar has agreed in writing that the Client is entitled to reject, Cougar’s liability is limited to replacing the Equipment.
17.2 Where the Client is not present, Cougar will email the Client the Handover Certificate to be signed and returned to Cougar within twenty-four (24) hours. Cougar will not be liable for any damages, costs and claims where Cougar exercises their right under these terms and conditions to remove the aculog until Cougar is in receipt of the signed Handover Certificate from the Client.
18. Consumer Guarantees Act 1993
18.1 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 Cougar to the Client.
19. Intellectual Property
19.1 The Client agrees that Cougar may (at no cost) use for the purposes of marketing or entry into any competition, any Equipment which Cougar has erected 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 Cougar’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 Cougar any money the Client shall indemnify Cougar from and against all costs and disbursements incurred by Cougar in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, Cougar’s collection agency costs, and bank dishonour fees).
20.3 Further to any other rights or remedies Cougar may have under this Contract, if a Client has made payment to Cougar, 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 Cougar under this clause 20, 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.
20.4 Without prejudice to Cougar’s other remedies at law Cougar shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to Cougar shall, whether or not due for payment, become immediately payable if:
(a) any money payable to Cougar becomes overdue, or in Cougar’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 Cougar;
(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.
21.1 Without prejudice to any other rights or remedies Cougar may have, if at any time the Client is in breach of any obligation (including those relating to payment and/or failure to remedy any breach in respect of this Contract within ten (10) working days of receipt by the Client of such notice/s) then Cougar may suspend the Services immediately. Cougar will not be liable to the Client for any loss or damage the Client suffers because Cougar has exercised its rights under this clause.
21.2 Cougar reserves the absolute right to:
(a) cancel, terminate, or determine this Contract;
(b) immediately repossess the Equipment;
21.3 at any time before or during the hire period, without reason, without prior notice, without payment of compensation and without prejudice to any other rights which Cougar may have against the Client. Cougar or its agents may enter any property or premises as per clause 14.1 where the Equipment may be kept, for this purpose.
21.4 In addition to clause 21.1 in these terms and conditions, Cougar shall be entitled to cancel the Contract if:
(a) Cougar reasonably believes that a third party may attempt to take possession of the Equipment;
(b) the Equipment is at risk.
21.5 In the event that the Client wishes to cancel this Contract then the Client agrees to provide a minimum of seventy-two (72) hours’ notice of termination of hire by either telephone or email. The Client shall remain liable for all hire charges due up to the time of cancellation until such notice is given.
22.1 All emails, documents, images or other recorded information held or used by Cougar is Personal Information as defined and referred to in clause 22.3 and therefore considered confidential. Cougar 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”). Cougar acknowledges that in the event it becomes aware of any data breaches and/or disclosure of the Clients Personal Information, held by Cougar that may result in serious harm to the Client, Cougar 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.
22.2 Notwithstanding clause 22.1, privacy limitations will extend to Cougar in respect of Cookies where transactions for purchases/orders transpire directly from Cougar’s website. Cougar 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 Cougar when Cougar sends an email to the Client, so Cougar 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 Cougar’s website.
22.3 The Client authorises Cougar or Cougar’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 Cougar from the Client directly or obtained by Cougar 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 clause 22.3 are authorities or consents for the purposes of the Privacy Act 1993.
22.5 The Client shall have the right to request Cougar for a copy of the Personal Information about the Client retained by Cougar and the right to request Cougar to correct any incorrect Personal Information about the Client held by Cougar.
23. Dispute Resolution
23.1 All disputes and differences between the Client and Cougar touching and concerning this agreement shall be referred to arbitration under a single arbitrator agreed upon by both parties, or failing agreement, by two arbitrators (one to be appointed by each party) and their umpire (appointed by them prior to arbitration), such arbitration to be carried out in accordance with provisions of the Arbitration Act 1996.
24. Suspension of Services
24.1 Where the Contract is subject to the Construction Contracts Act 2002, the Client hereby expressly acknowledges that:
(a) Cougar 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 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 Cougar by a particular date; and
(iv) Cougar has given written notice to the Client of its intention to suspend the carrying out of construction work under the construction Contract.
(b) if Cougar 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 Cougar exercises the right to suspend work, the exercise of that right does not:
(i) affect any rights that would otherwise have been available to Cougar 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 Cougar suspending work under this provision;
(d) due to any act or omission by the Client, the Client effectively precludes Cougar from continuing the Services or performing or complying with Cougar’s obligations under this Contract, then without prejudice to Cougar’s other rights and remedies, Cougar 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 Cougar as a result of such suspension and recommencement shall be payable by the Client as if they were a variation.
24.2 If pursuant to any right conferred by this Contract, Cougar suspends the Services and the default that led to that suspension continues un-remedied subject to clause 21.1 for at least ten (10) working days, Cougar shall be entitled to terminate the Contract, in accordance with clause 21.
25. Service of Notices
25.1 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.
25.2 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.
26.1 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 Cougar may have notice of the Trust, the Client covenants with Cougar 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 Cougar (Cougar 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.
27.1 Any dispute or difference arising as to the interpretation of these terms and conditions or as to any matter arising here-under, shall be submitted to, and settled by, either adjudication in accordance with the Construction Contracts Act 2002 and/or by arbitration in accordance with the Arbitration Act 1996 or its replacement(s).
27.2 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.
27.3 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 Lower Hutt Courts of New Zealand.
27.4 Cougar 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 Cougar of these terms and conditions (alternatively Cougar’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Services).
27.5 Cougar may licence and/or assign all or any part of its rights and/or obligations under this Contract without the Client’s consent.
27.6 The Client cannot licence or assign without the written approval of Cougar.
27.7 Cougar 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 Cougar’s sub-contractors without the authority of Cougar.
27.8 The Client agrees that Cougar 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 Cougar to provide Services to the Client.
27.9 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.
27.10 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.