General Trade Terms
SURVEY WORX STANDARD TERMS AND CONDITIONS OF TRADE (the “Terms of Trade”)
SURVEY WORX LTD (“SURVEY WORX”) agrees to provide professional surveying services (“the Services”) to the Client (as noted on the quote form attached to these Terms of Trade) (“the Client”) in accordance with these Terms of Trade.
1. ACCEPTANCE
The Client’s acceptance of any quote provided by SURVEY WORX, or otherwise instructions by the Client to SURVEY WORX to commence the Services, shall constitute the Client’s acceptance of these Terms of Trade. The person(s) accepting such quote or otherwise instructing SURVEY WORX to commence the Services warrant and represent that they have the full power and authority to accept these Terms of Trade on behalf of the Client.
Any plans notations, disclaimers or other materials provided by SURVEY WORX to the Client in connection with the Services shall be binding and form part of these Terms of Trade.
2. QUOTATION
Where a quotation is given by SURVEY WORX for any Services:
(a) the quotation shall be valid for 30 days from the date of issue and thereafter shall be deemed to be withdrawn unless agreed by SURVERY WORX;
(b) SURVEY WORX reserves the right to withdraw a quotation at any time prior to it being accepted by the Client;
(c) A quotation is based on rates and conditions at the time of issue. Any material increase in the cost of labour or materials may be charged at SURVEY WORX discretion.
3. SCOPE OF WORKS / INFORMATION PROVIDED
The Client shall provide to SURVEY WORX all necessary information and specifications relating to the Client’s requirements for the project and Services (“Scope of Works”). The nature and extent of the Services which SURVEY WORX provides to the Client shall be determined on such Scope of Works. The Scope of Works shall be fully documented and agreed upon by SURVEY WORX and the Client prior to the provision of the Services.
The Client acknowledges and agrees that SURVEY WORX will be relying on the information provided by the Client in connection with the Services/Scope of Work and that SURVEY WORX may not verify that information. The Client warrants and represents that all information provided to SURVEY WORX for the purpose of the Services/Scope of Works is true, accurate and not misleading.
The Client acknowledges and agrees that if the Client does not specify and notify SURVEY WORX of a survey datum for the relevant Scope of Work (being the starting reference point for the surveying which forms part of the Scope of Work), then SURVEY WORX can use a survey datum of its choice.
4. FEES AND DEPOSIT
The fees for the Services (the “Fees”) will be based upon the hourly and/or fixed rates as agreed in writing between SURVEY WORX and the Client in respect of the provision of equipment, labour and ancillary services (or as otherwise specified in the relevant quotation (if agreed)).
The Client acknowledges and agrees to the following special conditions relating to Fees:
(a) Fees will be determined by either an agreed fixed price (“Fixed Price Basis”) or determined by SURVEY WORX prescribed charge up/hourly rates for the relevant Scope of Works (“Charge Up Basis”). The basis for how the relevant Fees are charged for a Scope of Work will be agreed prior to commencement of the Services, as stipulated on the relevant quotation or otherwise agreed between the parties in writing; and
(b) Subject to any variation under clause 7 below, the agreed basis for charging the Fees, whether it is Fixed Price Basis or Charge Up Basis cannot be changed, unless requested by the Client and agreed in writing by SURVEY WORX as its absolute and sole discretion; and
(c) If the agreed basis for charging Fees for a Scope of Work is Charge Up Basis, there is a 4 hour minimum charge in connection with such Scope of Work; and
(d) If the agreed basis for charging Fees for a Scope of Work is Fixed Price Basis:
(i) It will be subject to a maximum number of visits to the Project Site (as defined at clause 17 below), such number will be specified in the relevant quotation or written correspondence confirming the Fees. If the Client requires any visits above the maximum number of visits specified, then SURVEY WORX reserves the right to charge additional fees for such visit(s); and
(ii) Multiple items can be completed in one visit to the Project Site.
To secure payment of the Fees by the Client, SURVEY WORX may require (in its absolute discretion) the Client to pay a deposit prior to commencing the Scope of Works, which will be deemed to be an advance part payment of any Fees / charges payable by the Client to SURVEY WORX and SURVEY WORX shall be authorised to apply such deposit toward any Fees / charges owing to SURVEY WORX (as it sees fit). As a condition to providing the Services, and without limitation to the aforesaid, if the Client is a limited company (or other body corporate), then SURVEY WORX has the right to require a personal guarantee from one or more of the directors, officers, partners or shareholders of the Client to secure paying to SURVEY WORX of the Fees – such personal guarantee will be provided in a separate document.
5. DISBURSEMENTS
If not allocated in the agreed Fees, the Client shall reimburse SURVEY WORX for all expenses reasonably and properly incurred in connection with the Services provided to the Client. Such disbursements shall include but not be limited to consumables, air travel and freight, accommodation, title and survey searching fees, data licence fees and the like.
6. PAYMENT TERMS
The Client shall pay the Fees, including GST without any set-off, deduction or counterclaim whatsoever, to SURVEY WORX within thirty (30) days of the date of the SURVEY WORX invoice. Invoices will be submitted by SURVEY WORX on either a weekly, bi-monthly or monthly basis, depending upon the nature of the relevant project/Services.
7. VARIATION TO SCOPE OF WORKS
If the Scope of Works changes for any reason, SURVEY WORX shall be entitled to review the value of the Fees previously agreed, and the Client shall be obliged to pay all additional costs associated with any changes to the Scope of Works. Where not instructed by the Client in writing, the SURVEY WORX works docket shall effect the authorisation that variation works have been carried out as described. Variation charges apply for meetings and/or briefings, calculations, plan checking, issue of RFI’s, field survey work, quality assurance checks and processes, plans and/or sketches, delivery of survey data and filing. The minimum site visit fee will also apply for variations. If the Client requires any changes to the Scope of Works it must make a request in writing to SURVEY WORX which may be accepted by SURVEY WORX at its sole direction and subject to any adjustment to the Fees/charges in accordance with the above.
8. GST
Goods and Services Tax (GST) shall be paid on the SURVEY WORX Fees in accordance with the current taxation laws. The amount of GST applicable to the Fees will be identified separately in any Fee proposal, and all Tax Invoices.
9. OVERDUE PAYMENTS
SURVEY WORX shall be entitled to charge interest on any Fees not paid by the Client by their due date, at a rate equal to the then current official cash rate (OCR) published by the Reserve Bank of New Zealand plus five (5) per cent. Payment of the interest charges will not relieve the Client of the obligation to pay the outstanding Fees. Where applicable, in relation to any building and or construction projects forming part of the Scope of Works, all claims for payment made by SURVEY WORX shall be subject to the Construction Contracts Act 2002.
10. SET OFF
The Client agrees and irrevocably authorises SURVEY WORX to apply, or set-off, against the Client’s account under this Agreement any sums which may be owed to the Client by any company within SURVEY WORX group of companies.
11. LEGAL COSTS
The Client indemnifies SURVEY WORX from and against all costs and disbursements incurred by SURVEY WORX (including solicitor/client costs on a full indemnity basis and collection agency costs), arising from, or consequent on, enforcement of:
(a) SURVEY WORX rights under these Terms of Trade (including enforcing any security);
(b) Any default of the Client’s obligations under these Terms of Trade (including collection of any Fees and charges owing by the Client).
12. INTELLECTUAL PROPERTY
Subject to clause 13 below, all present and future intellectual property rights (including moral rights) in all proposals, tenders, documents, drawings, calculations, designs, plans and data (“the Data”) prepared by it in relation to the Scope of Works/project shall automatically vest in and be owned solely by SURVEY WORX... The Client must not reproduce or disseminate the Data, to any person, public authority, institution or organisation without the express permission of a duly authorised representative of SURVEY WORX.
13. LICENCE TO USE THE DATA
Subject to the conditions below, SURVEY WORX shall grant the Client a license to use the Data in connection with the project:
(a) The licence applies only to the relevant project/Scope of Works or that part of the project to which the Data relates;
(b) SURVEY WORX has completed the particular stage or stages of the project/Scope of Works for which SURVEY WORX has been commissioned; and
(c) All Fees and charges properly due to SURVEY WORX in connection with such Data have been paid. Without limitation to the aforesaid, SURVEY WORX reserves the right to withhold giving the Client access to some or all of the Data if the Client has failed to pay any Fees and charges owing to SURVEY WORX.
14. NON-SOLICTATION
The Client shall not attempt to procure, solicit, endeavour or otherwise entice any employee or contractor of SURVEY WORX away from SURVEY WORX or discourage such individual from being employed or contracted by SURVEY WORX without SURVEY WORX prior written consent.
15. DISPUTE RESOLUTION
If there is a dispute between the parties, either party may serve a notice on the other detailing matters of dispute and requiring that senior representatives of each party meet and attempt to settle the dispute within five (5) working days. If the dispute is not settled by the senior representatives within ten (10) working days of the service of the notice, the parties shall agree to refer the dispute to mediation by a single mediator. Either party may initiate mediation, the costs of which shall be shared equally by the parties. If the parties cannot agree upon the identity of the mediator, the dispute shall be referred for mediation to a mediator nominated by the Arbitrators’ and Mediators’ Institute of New Zealand.
16. TERMINATION
SURVEY WORX may, at its discretion, suspend or terminate the supply of Services under these Terms of Trade with the Client without any liability or compensation payable to the Client as a result of such suspension or termination:
(a) In the event of monies payable to SURVEY WORX pursuant to these Terms of Trade are outstanding for more than thirty (30) days;
(b) In the event of any other breach by the Client of its obligations under such these Terms of Trade, which breach is not remedied within ten (10) days of written notice from SURVEY WORX requiring the breach to be remedied (or immediately, where such breach is incapable of remedy);
(c) In the event the Client requires SURVEY WORX to act unlawfully or unethically, or fails to provide an adequate Scope of Works and associated instructions;
(d) Upon giving the Client thirty (30) days written notice of its intention to do so; and
(e) If the Client takes or shall have taken against it any action for its winding up, placement under official management, administration or receivership or is unable to pay its debts or anything analogous, or having substantially similar effect, occurs.
The Client may terminate the supply of Services under these Terms of Trade with SURVEY WORX in the event of a breach by SURVEY WORX of its obligations under these Terms of Trade which breach is not remedied within thirty (30) days of written notice from the Client requiring the breach to be remedied.
If the supply of Services under these Terms of Trade are terminated early in accordance with the above, the Client is still obligated to pay all monies owed to SURVEY WORX for Services performed up to and including the date of termination as well as for the costs incurred by SURVEY WORX in relation to demobilising personnel and equipment from site. Termination of the supply of Services under these Terms of Trade is without prejudice to any rights and obligations of a party incurred up to termination.
17. PROJECT SITE – CONSTRUCTION & BUILDING & CIVIL
If any of the Services are to be provided at any nominated site of the Client (“Project Site”), such Project Site must be prepared by the Client prior to any Services commencing. Any delays or rescheduling costs incurred in connection with the Client’s failure to prepare the Project Site in (in particular in accordance with this clause 17 and 18 below) will be payable by the Client as an additional charge. Specifically, the Client must ensure that the Project Site is clear, dry, clean and free of materials, plant and equipment, and above all, a safe working environment. SURVEY WORX shall not be providing task lighting, scaffold, stairs or the like on the designated Project Site. The Client indemnifies SURVEY WORX for any losses, claims, expenses or otherwise incurred by SURVEY WORX as a result of the Client’s failure to comply with this clause and clause 18 below.
18. PROJECT SITE – SURVEY WORX
Access arrangements to the Project Site are to be the responsibility of the Client. The price quoted assumes that SURVEY WORX access to the Project Site will be unhindered. SURVEY WORX does not and will not assume any duty imposed on the Client pursuant to the Health and Safety at Work Act 2015 in connection with these Terms of Trade. The Client must ensure that the Project Site is a safe working environment and complies with all occupational health and safety requirements and that any potential dangers/hazards are communicated to SURVEY WORX before entry to the Project Site.
19. NO WARRANTIES/REPRESENTATIONS
Except as expressed in these Terms of Trade or as provided in any separate written agreement signed by SURVEY WORX, any and all conditions, guarantees, warranties or representations which might otherwise be implied by law, trade, customer or otherwise are expressly excluded to the maximum extent permitted by law.
The guarantees contained in the Consumer Guarantees Act 1993 (“CGA”) are expressly excluded where the Client acquires the Services for business purposes in terms of sections 2 and 43 of the CGA. Without limitation to the aforesaid, to the extent permitted by law, SURVEY WORX includes any warranties, conditions or obligations which may be imposed or implied under the CGA, Fair Trading Act 1986 (and other applicable legislations), common law, equity or otherwise.
Where the law implies or imposes any term, obligation or warranty into these Terms of Trade which cannot be excluded, then to the extent permitted by law, the liability of SURVEY WORX in connection with the same shall be limited pursuant to clause 20 (Limitation of Liability) of these Terms of Trade.
20. LIMITATION OF LIABILITY
If SURVEY WORX is liable to the Client for any reason, including breach of contract (including these Terms of Trade), tort, breach of fiduciary duty or other actionable wrong of any kind, then to the fullest extent permitted by law, SURVEY WORX liability shall be limited as follows:
(a) SURVEY WORX will not be liable if such losses, claims, damages (or otherwise) are due to the provision of false, misleading, incorrect or incomplete information or documentation by the Client;
(b) SURVEY WORX shall have no liability to the Client for any claims, losses or damages which are indirect or consequential in nature (including without limitation, loss of profit);
(c) If the Client or any other party has contributed to such loss or damage, then SURVEY WORX shall only be liable to the proportional extent of its own contribution, such contribution to be assessed based on SURVEY WORX degree of responsibility and the responsibility of the others (including the Client) who have contributed to such loss or damage (whether or not those other persons are able to meet any liability they have);
(d) notwithstanding the foregoing, and to the extent permissible at law, SURVEY WORX liability to the Client shall in no circumstances exceed (at SURVEY WORX election): (i) the redelivery of the relevant Services; or (ii) an amount equal to 50% of the total Fees paid by the Client to Survey Worx for the relevant Services under which liability was incurred.
To the extent permitted by law, no party shall be liable for any loss or damage resulting from any occurrence in connection with these Terms of Trade unless a claim is formally made by the other party within 12 months after the date of the act or omission on which the claim is based.
Neither party will be liable to the other for any failure to fulfil obligations under these Terms of Trade caused by circumstances outside its reasonable control.
21. CHARGE
The Client hereby in favour of SURVEY WORX charges and mortgages with the due and punctual payment of all monies due to SURVEY WORX and the due and punctual and complete performance of all its liabilities and obligations herein or on any account whatsoever all its legal and equitable interest of whatsoever nature held in any real property both present and future and the Client hereby consents to SURVEY WORX lodging a caveat or caveats noting its proprietary interest hereunder.
22. SECURITY INTEREST
To secure the obligations of the Client to SURVEY WORX under these Terms of Trade, the Client grants a security interest in all of its present and after acquired property and in all of its present and future rights, title, estate and interest, whether legal and equitable, in relation to any personal property, including any debts owed to the Client, in favour of SURVEY WORX to secure the performance of its liabilities and obligations hereunder or on any account whatsoever:
(a) If requested by SURVEY WORX the Client must immediately sign any documents, provide all necessary information and do anything else required by SURVEY WORX to ensure that the security interest created in SURVEY WORX favour is a perfected security interest.
(b) The Client must not grant any other security interest in favour of any party until SURVEY WORX has perfected its security interest created under this Agreement.
(c) The Client must not do or permit anything to be done that may result in the security interest granted to SURVEY WORX ranking in priority behind any other security interest.
23. GENERAL
(a) Joint and Several Liability: If the Client comprises two or more parties each of those parties is jointly and severally liable to SURVEY WORX in connection with the covenants and obligations of these Terms of Trade.
(b) Governing Law: These Terms of Trade will be governed by the laws of New Zealand and are subject to the non-exclusive jurisdiction of the Courts of New Zealand.
(c) Severability: If any part of these Terms of Trade is held invalid void, unenforceable or illegal for any reason, such provision shall be severed to the intent that all parts that are not void or unenforceable shall remain in full force and effect. None of the Terms of Trade will merge in or upon the execution of this or any other agreement, document, act, matter or thing and will continue to remain in full force and effect for so long as is necessary to give effect to these Terms of Trade.
(d) Inconsistency: Where there is any inconsistency between these Terms of Trade and any of the Client’s prior or subsequent terms and conditions, these Terms of Trade shall prevail to the extent of such conflict or inconsistency.
(e) Amendment: No amendment or variation of these Terms of Trade are valid and binding on SURVEY WORX unless it is in writing and signed by a Director or other authorised officer of SURVEY WORX.
(f) Waiver: A failure or delay in enforcing a right pursuant to these Terms of Trade is not a waiver of that right. Any waiver must be in writing and signed by the party granting the waiver (and in the case of SURVEY WORX signed by a director or authorised officer).
(g) Assignment/Subcontract: The Client shall not assign or subcontract any of its rights, powers or obligations under these Terms of Trade without SURVEY WORX prior written consent. SURVEY WORX may, as it deems necessary, subcontract its obligations in connection with the Scope of Works to a third party.
(h) Privacy: We will collect, retain and use information about the Client in accordance with our obligations under the Privacy Act 2020.