Terms of Trade
1. Definitions
1.1 “Hopa Brothers” means Hopa Brothers Construction Ltd, its successors and assigns or any person acting on behalf of or with the authority of Hopa Brothers
Construction Ltd.
1.2 “Client” means the person ordering the Works as specified in any invoice, document or order, and if there is more than one, Client is a reference to each Client jointly and severally.
1.3 “Works” means all Works and Materials supplied by Hopa Brothers to the Client at the Clients request from time to time (where the context so permits the terms Works or Materials shall be interchangeable for the other).
1.4 “Price” means the Price payable for the works as agreed between Hopa Brothers and the Client in accordance with these terms and conditions of trade.
2. Acceptance
2.1 The Client is taken to have accepted and is immediately bound by these terms and conditions if the Client places an order for or accept delivery of any Works.
2.2 These terms and conditions may only be amended with Hopa Brothers consent in writing and these terms and conditions shall prevail to the extent that there is any conflict with any other document or agreement between the Client and Hopa Brothers.
2.3 In the event that the Materials and/or Works provided by Hopa Brothers are the subject of an insurance claim that the Client has made then the Client shall be responsible for the payment of any monies payable to the insurance company and agrees to honour their obligation for payment for such transactions invoiced by Hopa
Brothers and shall ensure payment is made by the due date irrespective of whether the insurance claim is successful.
3. Price and Payment
3.1 At Hopa Brothers sole discretion the Price shall be either: (a) as indicated on invoices provided by Hopa Brothers to the Client in respect of Works performed or Materials supplied; or (b) Hopa Brothers quoted Price, subject to clause 3.2 .
3.2 Hopa Brothers reserves the right to change the Price:
(a) if a variation to the Materials which are to be supplied is requested; or
(b) if a variation to the Works originally scheduled (including any applicable plans or specifications) is requested; or
(c) where additional Works are required due to the discovery of hidden or unidentifiable difficulties, or pre-requisite work by any third party not being completed; or
(d) in the event of increases to Hopa Brothers cost of labour or Materials which are beyond Hopa Brothers control.
3.3 At Hopa Brothers sole discretion, a deposit may be required.
3.4 The Price will be payable by the Client seven days following the date of any invoice given to the Client by Hopa Brothers.
3.5 Payment may be made by bank cheque, electronic/online banking or by any other method as agreed between the parties.
3.6 Unless otherwise stated the Price does not include GST. In addition to the Price the Client must pay to Hopa Brothers an amount equal to any GST payable.
4. Provision of Works
4.1 Subject to clause 4.2 Hopa Brothers will ensure that the Works start as soon as it is reasonably possible.
4.2 The Works commencement date will be put back and the completion date extended by whatever time is reasonable in the event that Hopa Brothers claims an extension of time where completion is delayed by an event beyond Hopa Brothers control
4.3 Hopa Brothers may deliver the Works in instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.
4.4 Any time specified by Hopa Brothers for the completion of works or the delivery of Materials is an estimate only and Hopa Brothers will not be liable for any loss or damage incurred by the Client as a result of delivery or completion being late.
5. Risk and Clients Responsibilities
5.1 Hopa Brothers shall be entitled to rely on the accuracy of any plans, specifications and other information provided by the Client the Client acknowledges and agrees that in the event that any of this information provided by the Client isn’t accurate, Hopa Brothers accepts no responsibility for any loss, damages, or costs however resulting from these inaccurate plans, specifications or other information.
5.2 The Client acknowledges that the Materials supplied may:
(a) fade or change colour over time;
(b) crack as a result of settling, exposure to heat, cold, weather;
(c) mark or stain if exposed to certain substances;
(d) be damaged by heavy machinery or impact.
5.3 The Client agrees to indemnify Hopa Brothers from any damage caused by any other person during and after the completion of the Works. If the Client instructs Hopa Brothers to rectify any damage caused by any other person, this will become a variation to the original quotation and will be charged at Hopa Brothers normal hourly rates.
6. Compliance with Laws
6.1 The Client shall obtain, at the expense of the Client all licenses and approvals, including local government approvals, that may be required by the Works, unless otherwise agreed.
7. Access
7.1 The Client shall ensure that Hopa Brothers has clear and free access to the worksite at all times to enable them to undertake the Works. Hopa Brothers will not be liable for any loss or damage to the site including without limitation damaged pathways, driveways, concrete, paved or grassed areas unless due to the negligence of Hopa Brothers.
8. Security and Charge
8.1 In consideration of Hopa Brothers agreeing to supply the Works, the Client charges all of its rights, title and interest whether joint or several in any land, realty or other assets capable of being charged owned by the Client either now or in the future to secure the performance by the Client of its obligations under these terms and conditions including but not limited to their obligation to pay money.
8.2 The Client indemnifies Hopa Brothers from and against all Hopa Brothers costs and disbursements including legal costs of the solicitor and own client basis incurred in exercising its rights under this clause.
8.3 The Client irrevocably appoints Hopa Brothers and each of its directors as the Clients true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 8 including but not limited to signing any document on the Client’s behalf.
9. Clients Disclaimer
9.1 The Client hereby disclaims any right to rescind or cancel any contracts with Hopa Brothers or to sue for damages or to claim restitution arising out of any inadvertent misrepresentation made by Hopa Brothers and the Client acknowledges that the works are bought relying solely upon the Clients own judgement.
10. Consequences of Default
10.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due until the date of payment at a rate of 2.5% above the commercial un-arranged overdraft rate advertised by the bank for Hopa Brothers. The interest shall accrue per calendar month and at Hopa Brothers sole discretion such interest shall compound monthly at such a rate after as well as before any judgement.
10.2 If the Client owes Hopa Brothers any money the Client shall indemnify Hopa Brothers from and against all costs and disbursements incurred by Hopa Brothers and recovering the debt including but not limited to internal administration fees, legal costs on a solicitor and own client basis, collection agency costs, and bank dishonour fees.
10.3 Without prejudice to Hopa Brothers other remedies at law, it shall be entitled to cancel all or any part of any Works of the Client which remain unfulfilled and all amounts owing to Hopa Brothers, whether or not due for payment, become immediately payable if:
(a) any money payable to Hopa Brothers becomes overdue; or
(b) the Client becomes insolvent or bankrupt, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors;
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.
11 Cancellation
11.1 Without prejudice to any other remedies Hopa Brothers may have, if
at any time the Client is in breach of any obligation (including those relating to payments) under the terms and conditions Hopa Brothers may suspend or terminate the supply of Works to the Client. Hopa Brothers will not be liable to the Client for any loss or damage the Client suffers because Hopa Brothers has exercised its rights under this clause.
11.2 In the event that the Client cancels the delivery of the Works the Client shall be liable for any and all loss incurred (whether direct or indirect) by Hopa Brothers as a direct result of the cancellation (including but not limited to loss of profit).
12 General
12.1 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.
12.2 These terms and conditions in any contract which they apply shall be governed by the laws of New Zealand and are subject to the jurisdiction of the Hamilton Courts of New Zealand.
12.3 Hopa Brothers shall be under no liability whatsoever to the Client for any direct and/or consequential loss and/or expense (including loss of profit) suffered by the Client arising out of the breach by Hopa Brothers of these terms and conditions and alternatively if any liability is found it shall be limited to damages under which no circumstances shall exceed the Price of the Works.
12.4 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 Hopa Brothers nor to withhold payment of any invoice because part of that invoice is in dispute.
12.5 Hopa Brothers may license or subcontract all or any part of its rights and obligations without the Client consent. 12.6 The Client agrees that Hopa Brothers may amend these terms and conditions by notifying 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 Hopa Brothers to provide Works or Materials to the Client
12.7 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lockout, industrial action, fire, floods, storm or any other event beyond the reasonable control of either party.
12.8 Both parties warrant they have the power to enter into this agreement and have obtained all necessary authorisations to allow them to do so, they are not insolvent and that this agreement creates a binding and valid legal obligation on them.
