Standard Terms and Conditions - 20 Days

1.    Entire Agreement

a.    This quotation comprises the entire agreement between Toa Civil Construction Ltd and the Purchaser, and supersedes all prior negotiations, representations and warranties except insofar as the same are expressly incorporated herein.

b.    Where there is any difference or ambiguity in the terms of this quotation, the Scope of Works shall take precedence over the Standard Terms and Conditions. Where matters arise that are not covered by the terms of this quotation, the terms of NZS 3915:2003 shall apply.

2.    Rates and Price

a.    All rates and prices exclude GST, testing and traffic control, unless specifically stated.

b.    All prices subject to a stated quantity shall be subject to an as-built measure at the conclusion of the works and adjusted accordingly.

c.    Toa Civil Construction Ltd reserves the right to change the rates and/or prices where it incurs additional cost or suffers loss as a result of:

i.      the works being delayed or damaged by reasons beyond Toa Civil Construction Ltd reasonable control; or

ii.     the assumptions relied upon by Toa Civil Construction Ltd in preparation of this quotation being incorrect; or

iii.     unforeseen physical conditions; or

iv.     rates and/or prices being stated as provisional; or

v.     it not being possible to commence the works within three months of this quotation, for reasons not within Toa Civil Construction Ltd reasonable control; or

vi.     additional works being instructed; or

vii.    the Purchaser breaching any of its obligations under this agreement; or

viii.   performance of the works extending beyond a 12 month period.

d.    In the event Toa Civil Construction Ltd intends to change any rate and/or price as provided for in clause 2 above, Toa Civil Construction Ltd shall, where reasonably practicable, give the Purchaser advance notice of that change, and in any event shall include an explanation of the change in the applicable payment claim.

3.    Payment

a.    Toa Civil Construction Ltd shall be entitled to submit monthly payment claims or a monthly invoice during the course of the works.

b.    Payment by the Purchaser is due to be received by Toa Civil Construction Ltd no later than the 20th of the month following receipt of the relevant Toa Civil Construction Ltd’ payment claim.

c.    In the event of late payment, compound interest at the rate of 2% per month on the outstanding moneys from the date the moneys were due until such time as payment in full (including all interest thereon) has been received by Toa Civil Construction Ltd, shall be payable

d.    No retentions are to be held for any reason.

e.    It is agreed that the title in any goods and/or materials required for the works shall only pass to the Purchaser when Toa Civil Construction Ltd receives full payment for them.

4.    Variations

a.    Toa Civil Construction Ltd shall be entitled to payment for additional works undertaken at the instruction of the Purchaser, whether verbally or in writing.

b.    Where requested and where reasonably practicable, Toa Civil Construction Ltd will provide a quotation to the Purchaser for the additional works prior to undertaking those works, but otherwise will charge a fair and reasonable price for those additional works.

5.    Standard of Care

a.    Toa Civil Construction Ltd shall perform the works under this agreement using reasonable skill and care and without undue delay.

b.    Toa Civil Construction Ltd shall have no liability for delay or damage to the works as a result of events outside Toa Civil Construction Ltd reasonable control.

c.    Ponding is acceptable where the works involve surfacing with cross falls of less than 1:100 and Toa Civil Construction Ltd is not responsible for preparing the base.

d.    Toa Civil Construction Ltd does not guarantee the effectiveness of any weed killing required.

6.    Access and Site Conditions

a.    The Purchaser is responsible for providing complete free and easy access to the working area of the site for materials, people and plant, and for the provision of all electrical, water and other services Toa Civil Construction Ltd deems necessary for performance of the works.

b.    The Purchaser is responsible for ensuring the site and/or access to the site is sufficient to withstand construction traffic.

c.    Any permits or consents required for the works shall be obtained by, and any charges related thereto be paid by the Purchaser directly to the relevant authority.

d.    This quotation assumes that site and subsurface conditions are suitable for the carrying out the works. If rock or running sand, unstable ground, excess water, services/utilities of any kind, or any unforeseen physical conditions are encountered, those conditions shall be treated as a variation.

e.    Toa Civil Construction Ltd shall be entitled to make minor departures from the Scope of Works made necessary by site conditions or unforeseen circumstances.

7.    Works performed by others

a.    Where Toa Civil Construction Ltd works are dependent on works being carried out by the Purchaser or a third party engaged by the Purchaser, those works must be carried out in a workmanlike manner, to appropriate standards, and so as to not delay Toa Civil Construction Ltd.

8.    Damage

a.    Damage to the works not caused by Toa Civil Construction Ltd is the responsibility of the Purchaser during the installation procedure and thereafter.

b.    No allowance is made in the price for protecting existing structures. The Purchaser accepts risk for damage to existing structures as a consequence of Toa Civil Construction Ltd performing its works in accordance with this agreement. For example, exterior finishings may receive minor dents or blemishes if compacting is required in close proximity to existing structures.

9.    Intellectual Property

a.    The rights in any Toa Civil Construction Ltd’ intellectual property pre-existing the works or developed for the works shall remain vested in Toa Civil Construction Ltd.

10.  Photographs

a.    The Purchaser consents to Toa Civil Construction Ltd photographing the works before, during and after completion for the sole purpose of its portfolio and marketing. Specific requests to refrain from photographic use must be made in writing and at the earliest opportunity.

11.  Liability

a.    To the extent permitted by law, the Purchaser indemnifies Toa Civil Construction Ltd against any claim, loss or damage as a result of the Purchaser failing to comply with its obligations under this agreement.

b.    To the extent permitted by law and notwithstanding any other term in this quotation:

i.      the maximum aggregate liability of Toa Civil Construction Ltd to the Purchaser for delay in completion of the Scope of Works is 10% of the price payable to Toa Civil Construction Ltd under this quotation;

ii.     the aggregate maximum liability of Toa Civil Construction Ltd to the Purchaser in connection with this quotation, whether in contract, tort (including negligence) or otherwise, shall be limited to 50% of the price payable to Toa Civil Construction Ltd under this quotation;

iii.     Toa Civil Construction Ltd shall not be liable to the Purchaser for any consequential, indirect, special, punitive or exemplary damages, loss of use, loss of anticipated savings (whether direct or indirect) or for any loss of profit, revenue or product arising in relation to the works under this quotation.

12.  Termination

a.    The Purchaser may terminate this agreement only where Toa Civil Construction Ltd has failed to rectify a material breach of this agreement within 20 working days’ of notice to do so.

b.    Toa Civil Construction Ltd may terminate this agreement where:

i.      it becomes impracticable to perform the works for any reason outside of Toa Civil Construction Ltd reasonable control; or

ii.     The Purchaser has failed to rectify a material breach of this agreement within 10 working days of notice to do so.

c.    In the event of termination Toa Civil Construction Ltd shall be entitled to be paid for all works performed up to the date of termination.

d.    The parties’ rights, obligations and liabilities under this agreement shall persist despite termination.

13.  Jurisdiction and Disputes

a.    This agreement is subject to New Zealand law.

b.    In the event of any dispute, the Purchaser shall not be entitled to withhold payment in excess of an amount representing a reasonable valuation of the work required to rectify or replace the work which is specifically subject to the dispute.

c.    All disputes arising in relation to this quotation are to be resolved through adjudication under the Construction Contracts Act 2002 and/or arbitration under the Arbitration Act 1996.

By confirmation of quotation acceptance, you accept the Toa Civil Construction Ltd Terms and Conditions outlined in this document.