1.1 “Shipleys” means Shipleys Audiovisual Ltd, its successors and assigns or any person acting on behalf of and with the authority of Shipleys Audiovisual Ltd.
1.2 “Client” means the person/s purchasing the Goods or any person acting on behalf of and with the authority of the Client, 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 “Goods” means all Goods or Services supplied by Shipleys to the Client at the Client’s request from time to time (where the context so permits the terms ‘Goods’ or ‘Services’ shall be interchangeable for the other).
1.4 “Price” means the Price payable (plus any GST where applicable) for the Goods as agreed between Shipleys and the Client in accordance with clause 5 below.
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 delivery of the Goods.
2.2 These terms and conditions may only be amended with the consent of both parties in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the Client and Shipleys.
2.3 The Client acknowledges and agrees that Shipleys proposal shall include standard factory finishes on equipment supplied by manufacturers. Unless otherwise specified by Shipleys, other custom finishes are available as a variation as per clause 5.2.
2.4 Any costs incurred for parking by Shipleys installation crew or technician shall become due and payable by the Client upon delivery.
2.5 Unless otherwise specified by Shipleys to the Client, costs incurred for special building site condition levies, fees, insurances, compliances, inspections or certification fees shall be shown as a variation on the invoice as per clause 5.2 and shall become immediately due and payable by the Client.
2.6 The Client acknowledges and accepts that Shipleys at their discretion, reserves the right not to supply Goods if, for any reason (including but not limited to, where the Goods are not or cease to be available, account disputes or conditions placed on Shipleys by their suppliers). Shipleys shall not be liable to the Client for any loss or damage the Client suffers due to Shipleys exercising its rights under this clause.
2.7 Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 22 of the Electronic Transactions Act 2002 or any other applicable provisions of that Act or any Regulations referred to in that Act.
3. Authorised Representative
3.1 The Client acknowledges that Shipleys shall (for the duration of the Services) liaise directly with one (1) authorised representative, and that once introduced as such to Shipleys, that person shall have the full authority of the Client to order any Services and/or to request any variation thereto on the Client’s behalf. The Client accepts that they will be solely liable to Shipleys for all additional costs incurred by Shipleys (including Shipleys profit margin) in providing any Services or variation/s requested thereto by the Client’s duly authorised representative.
4. Change in Control
4.1 The Client shall give Shipleys 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, or business practice). The Client shall be liable for any loss incurred by Shipleys as a result of the Client’s failure to comply with this clause.
5. Price and Payment
5.1 At Shipleys sole discretion the Price shall be either:
(a) as indicated on any invoice provided by Shipleys to the Client; or
(b) Shipleys quoted price (subject to clause 5.2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.
5.2 Shipleys reserves the right to change the Price:
(a) if a variation to the Goods which are to be supplied is requested; or
(b) if a variation to the Services originally scheduled (including any applicable plans or specifications) is requested; or
(c) where additional Services are required due to the discovery of hidden or unidentifiable difficulties (including, but not limited to, poor weather conditions, limitations to accessing the site, safety considerations, prerequisite work by any third party not being completed, obscured building defects, change of design, hidden pipes and wiring in walls etc) which are only discovered on commencement of the Services; or
(d) in the event of increases to Shipleys in the cost of labour or materials (including but not limited to overseas transactions that may increase as a consequence of variations in foreign currency rates of exchange and/or international freight and insurance Prices) which are beyond Shipleys control.
5.3 The Client acknowledges and agrees that any requested work which is outside of Shipleys normal business hours (8.00 am to 5.00pm Monday to Friday (excluding Public Holidays)) shall incur additional overtime rates unless otherwise specified by Shipleys.
5.4 At Shipleys sole discretion a non-refundable deposit may be required.
5.5 Time for payment for the Goods being of the essence, the Price will be payable by the Client on the date/s determined by Shipleys, which may be:
(a) on delivery of the Goods;
(b) before delivery of the Goods;
(c) by way of instalments/progress payments in accordance with Shipleys payment schedule;
(d) for certain approved Clients, due twenty (20) days following the end of the month in which a statement is sent to the Client’s address or address for notices;
(e) the date specified on any invoice or other form as being the date for payment; or
(f) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Client by Shipleys.
5.6 Payment may be made by cash, bank cheque, electronic/online banking, credit card (plus a surcharge may apply per transaction) or by any other method as agreed to between the Client and Shipleys.
5.7 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 Shipleys nor to withhold payment of any invoice because part of that invoice is in dispute.
5.8 Unless otherwise stated the Price does not include GST. In addition to the Price the Client must pay to Shipleys an amount equal to any GST Shipleys must pay for any supply by Shipleys under this or any other agreement for the sale of the Goods. The Client must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Client pays the Price. In addition the Client must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.
6. Delivery of Goods
6.1 The Services commencement date will be put back and/or the completion date extended by whatever time is reasonable in the event that Shipleys claims an extension of time (by giving the Client written notice) where completion is delayed by an event beyond Shipleys, including but not limited to any failure by the Client to:
(a) make a selection; or
(b) have the site ready for the Services; or
(c) notify Shipleys that the site is ready; or
(d) advise a suitable lead in time to arrange equipment, programming and availability of staff, minimum of seven (7) days.
6.2 Shipleys may deliver the Goods in separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.
6.3 Any time specified by Shipleys for delivery of the Goods is an estimate only and Shipleys 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 Goods to be delivered at the time and place as was arranged between both parties. In the event that Shipleys is unable to supply the Goods as agreed solely due to any action or inaction of the Client, then Shipleys shall be entitled to Price a reasonable fee for redelivery and/or storage.
7.1 If Shipleys retains ownership of the Goods under clause 11 then:
(a) where Shipleys is supplying Goods only, all risk for the Goods shall immediately pass to the Client on delivery and the Client must insure the Goods on or before delivery. Delivery of the Goods shall be deemed to have taken place immediately at the time the Goods are delivered by Shipleys or Shipleys nominated carrier to the Client’s nominated delivery address (even if the Client is not present at the address); or
(b) where Shipleys is to both supply and install Goods then Shipleys shall maintain a contract Services insurance policy until the Services are completed. Upon completion of the Services all risk for the Services shall immediately pass to the Client.
7.2 Notwithstanding the provisions of clause 7.1 if the Client specifically requests Shipleys to leave Goods outside Shipleys premises for collection or to deliver the Goods to an unattended location then such Goods shall always be left at sole risk of the Client and it shall be the Client’s responsibility to ensure the Goods are insured adequately or at all. In the event that such Goods are lost, damaged or destroyed then replacement of the Goods shall be at the Client’s expense.
7.3 The Client acknowledges and agrees that although Shipleys Goods includes the original manufacturer’s standard lighting and power protection, there is no guarantee provided against damage due to either of these sources. However, additional protection is available upon request by the Client to Shipleys.
7.4 Shipleys will accept no liability whatsoever for system design and performance where the design had been authored or undertaken by others. Whilst Shipleys will use the best endeavour to provide a fully functional and operating system. In the event of any rectifying work required as a result of inaccurate or incorrect design issues authored by others, this will result in additional Prices being imposed which shall become immediately due and payable to Shipleys.
7.5 Any IT/data systems installed by Shipley must not be modified by others. Shipleys will interface to IT systems installed by other third parties where agreed to between Shipleys and the Client. Shipleys will use their best endeavours to provide functionality however; Shipleys will not accept any responsibility or liability for the performance of such systems.
7.6 The Client acknowledges and agrees that any work required to be done to the existing building structure/s for the Services to commence or Goods to be delivered, shall be carried out by others and shall be the Client’s responsibility to organise and pay for. Shipleys quotation does not provide for changes to a firewall, chasing, drilling or making good, painting or any other building works unless specified in writing and agreed between Shipleys and the Client.
7.7 Where Shipleys is required to install the Goods the Client warrants that the structure of the premises or equipment in or upon which these Goods are to be installed or erected is sound and will sustain the installation and work incidental thereto and Shipleys shall not be liable for any claims, demands, losses, damages, costs and expenses howsoever caused or arising in connection with the installation and work incidental thereto.
7.8 Any advice, recommendation, information, assistance or service provided by Shipleys in relation to Goods or Services supplied is given in good faith is based on Shipleys own knowledge and experience and shall be accepted without liability on the part of Shipleys 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 Goods or Services.
8. Hidden Services
8.1 Prior to Shipleys commencing any Services the Client must advise Shipleys of the precise location of all underground services on the site and clearly mark the same. The underground mains & services the Client must identify include, but are not limited to, electrical services, gas services, sewer services, pumping services, sewer connections, sewer sludge mains, water mains, irrigation pipes, telephone cables, fibre optic cables, oil pumping mains, and any other services that may be on site.
Whilst Shipleys will take all care to avoid damage to any underground services the Client agrees to indemnify Shipleys in respect of all and any liability claims, loss, damage, costs and fines as a result of damage to services not precisely located and notified as per clause 8.1.
9. Compliance with Laws
9.1 The Client and Shipleys shall comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities that may be applicable to the Services.
9.2 The Client shall obtain (at the expense of the Client) all licenses and approvals that may be required for the Services.
9.3 The Client agrees that the site will comply with any worksafe guidelines regarding health and safety laws relating to building/construction sites and any other relevant safety standards or legislation.
10.1 The Client shall ensure that Shipleys has clear and free access to the work site between the hours of 8.00am-5.00pm Monday to Friday to enable them to undertake the works. Shipleys shall not be liable for any loss or damage to the site unless due to the negligence of Shipleys. Once Shipleys staff is on site and access is denied by the Client and/or the Client’s third party contractor, Shipleys shall be entitled to claim for this unscheduled stand down time period based on Shipleys standard hourly rate.
10.2 The Client acknowledges and agrees that it is the responsibility of the Client to ensure that regulated, clean 240AC power and an insulated ground are provided to Shipleys.
10.3 It shall be the Client’s responsibility to ensure that the workspace has an operating environment suitable for the specified equipment. Equipment racks or cabinets as well as joinery modifications are not included unless specified and agreed to by Shipleys.
11. MATV Signal
11.1 Unless otherwise specified by Shipleys, the quotation supplied does not provide for the supply or installation of MATV equipment or delivery systems. MATV outlets are to be at Shipleys equipment rack locations ready for connection. Shipleys shall not accept any responsibility whatsoever for the reception or performance quality of MATV’s signals, unless the MATV systems is installed solely by Shipleys.
12.1 Shipleys and the Client agree that ownership of the Goods shall not pass until:
(a) the Client has paid Shipleys all amounts owing to Shipleys; and
(b) the Client has met all of its other obligations to Shipleys.
12.2 Receipt by Shipleys of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised.
12.3 It is further agreed that until ownership of the Goods passes to the Client in accordance with clause 12.1:
(a) the Client is only a bailee of the Goods and must return the Goods to Shipleys on request.
(b) the Client holds the benefit of the Client’s insurance of the Goods on trust for Shipleys and must pay to Shipleys the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed.
(c) the Client must not sell, dispose, or otherwise part with possession of the Goods other than in the ordinary course of business and for market value. If the Client sells, disposes or parts with possession of the Goods then the Client must hold the proceeds of any such act on trust for Shipleys and must pay or deliver the proceeds to Shipleys on demand.
(d) the Client should not convert or process the Goods or intermix them with other goods but if the Client does so then the Client holds the resulting product on trust for the benefit of Shipleys and must sell, dispose of or return the resulting product to Shipleys as it so directs.
(e) the Client irrevocably authorises Shipleys to enter any premises where Shipleys believes the Goods are kept and recover possession of the Goods.
(f) Shipleys may recover possession of any Goods in transit whether or not delivery has occurred.
(g) the Client shall not Price or grant an encumbrance over the Goods nor grant nor otherwise give away any interest in the Goods while they remain the property of Shipleys.
(h) Shipleys may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Client.
13. Personal Property Securities Act 1999 (“PPSA”)
13.1 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 Goods and/or collateral (account) – being a monetary obligation of the Client to Shipleys for Services – that have previously been supplied and that will be supplied in the future by Shipleys to the Client.
13.2 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 Shipleys may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register;
(b) indemnify, and upon demand reimburse, Shipleys for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register or releasing any Goods Priced thereby;
(c) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods and/or collateral (account) in favour of a third party without the prior written consent of Shipleys; and
(d) immediately advise Shipleys of any material change in its business practices of selling the Goods which would result in a change in the nature of proceeds derived from such sales.
13.3 Shipleys and the Client agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms and conditions.
13.4 The Client waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA.
13.5 Unless otherwise agreed to in writing by Shipleys, the Client waives its right to receive a verification statement in accordance with section 148 of the PPSA.
13.6 The Client shall unconditionally ratify any actions taken by Shipleys under clauses 13.1 to 13.5.
14. Security and Charge
14.1 In consideration of Shipleys agreeing to supply the Goods, the Client Prices all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being Priced, 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).
14.2 The Client indemnifies Shipleys from and against all Shipleys costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising Shipleys rights under this clause.
14.3 The Client irrevocably appoints Shipleys and each director of Shipleys as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 14 including, but not limited to, signing any document on the Client’s behalf.
15. Client’s Disclaimer
15.1 The Client hereby disclaims any right to rescind, or cancel any contract with Shipleys or to sue for damages or to claim restitution arising out of any inadvertent misrepresentation made to the Client by Shipleys and the Client acknowledges that the Goods are bought relying solely upon the Client’s skill and judgment.
16.1 The Client shall inspect the Goods on delivery and shall within three (3) days of delivery (time being of the essence) notify Shipleys of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Client shall afford Shipleys an opportunity to inspect the Goods within a reasonable time following delivery if the Client believes the Goods are defective in any way. If the Client shall fail to comply with these provisions the Goods shall be presumed to be free from any defect or damage. For defective Goods, which Shipleys has agreed in writing that the Client is entitled to reject, Shipleys liability is limited to either (at Shipleys discretion) replacing the Goods or repairing the Goods.
16.2 Goods will not be accepted for return other than in accordance with 16.1 above, and provided that:
(a) Shipleys has agreed in writing to accept the return of the Goods; and
(b) he Goods are returned at the Client’s cost within seven (7) days of the delivery date; and
(c) Shipleys will not be liable for Goods which have not been stored or used in a proper manner; and
(d) the Goods are returned in the condition in which they were delivered and with all packaging material, brochures and instruction material in as new condition as is reasonably possible in the circumstances.
16.3 Shipleys may (in its discretion) accept the return of Goods for credit but this may incur a handling fee of up to twenty percent (20%) of the value of the returned Goods plus any freight.
16.4 Subject to clause 16.1, non-stocklist items or Goods made to the Client’s specifications are not acceptable for credit or return.
17.1 Subject to the conditions of warranty set out in clause 17.1 Shipleys warrants that if any defect in any workmanship of Shipleys becomes apparent and is reported to Shipleys within twelve (12) months for all new Goods, parts and/or labour, or within three (3) months on all second hand Goods of the date of delivery (time being of the essence) then Shipleys will either (at Shipleys sole discretion) replace or remedy the workmanship.
17.2 The conditions applicable to the warranty given by clause 17.1 are:
(a) the warranty shall not cover any defect or damage which may be caused or partly caused by or arise through:
(i) failure on the part of the Client to properly maintain any Goods; or
(ii) failure on the part of the Client to follow any instructions or guidelines provided by Shipleys; or
(iii) any use of any Goods otherwise than for any application specified on a quote or order form; or
(iv) the continued use of any Goods after any defect becomes apparent or would have become apparent to a reasonably prudent operator or user; or
(v) fair wear and tear, any accident or act of God.
(b) the warranty shall cease and Shipleys shall thereafter in no circumstances be liable under the terms of the warranty if the workmanship is repaired, altered or overhauled without Shipleys consent.
(c) in respect of all claims Shipleys shall not be liable to compensate the Client for any delay in either replacing or remedying the workmanship or in properly assessing the Client’s claim.
17.3 For Goods not manufactured by Shipleys, the warranty shall be the current warranty provided by the manufacturer of the Goods. Shipleys shall not be bound by nor be responsible for any term, condition, representation or warranty other than that which is given by the manufacturer of the Goods.
17.4 To the extent permitted by statute, no warranty is given by Shipleys once cabling has been installed in walls, ceilings and/or under floor cavities once a third party has sealed such surfaces, therefore, any implied warranty, is expressly excluded. Shipleys shall not be responsible for any loss or damage in accessing the cabling for inspection or installation of future goods with such associated costs being borne by the Client.
17.5 The conditions applicable to the warranty given on Goods supplied by Shipleys are contained on the “Warranty Documentation” that will be supplied with the Goods at the time of sale and/or installation.
18 Consumer Guarantees Act 1993
18.1 If the Client is acquiring Goods 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 Goods by Shipleys to the Client.
19. Intellectual Property
19.1 If during the course of supply the Goods, Shipleys develops, discovers, or puts into operation a new concept, code, product or process then such concept, product or process shall be and remain the property of Shipleys and the Client shall not use or supply the same in any way whatsoever without first obtaining the written consent of Shipleys.
19.2 The Client warrants that all designs, specifications, information and instructions to Shipleys will not cause Shipleys to infringe any patent, registered design or trademark in the execution of the Client’s order. Furthermore, the Client agrees to indemnify, defend, and hold Shipleys harmless from all loss incurred or suffered by Shipleys arising from any claims (including third party claims) or demands against them where such loss was caused by any infringement or alleged infringement of any person’s Intellectual Property rights by the Client during its use of the Goods.
19.3 The Client agrees to use any software supplied by Shipleys strictly in compliance with the terms of the licence under which it is supplied. The Client further agrees that they shall not:
(a) use in any way, or rely on the software for any purpose other than what it was designed or is suitable for;
(b) combine the software with any other software;
(c) copy, reproduce, translate, adapt, vary, merge, modify, or create any derivative work based on the software;
(d) reverse engineer, decompile, disassemble, reconfigure or otherwise attempt to discover the source code of the software, or assist another party to do the same (all underlying code elements will in all cases remain the property of Shipleys);
(e) sell, market, network, transfer, lease, licence, sub-licence, rent, lend, or otherwise distribute, the software in any way whatsoever;
(f) use the software to commit a crime (including, but not limited to, sending spam) and the Client agrees to indemnify Shipleys against any action taken by a third party against Shipleys in respect of any such infringement;
19.4 The Client agrees that Shipleys may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings or Goods which Shipleys has created 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 Shipleys sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
20.2 If the Client owes Shipleys any money the Client shall indemnify Shipleys from and against all costs and disbursements incurred by Shipleys in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, Shipleys collection agency costs, and bank dishonour fees).
20.3 Further to any other rights or remedies Shipleys may have under this contract, if a Client has made payment to Shipleys, 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 Shipleys 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 agreement.
20.4 Without prejudice to Shipleys other remedies at law Shipleys shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to Shipleys shall, whether or not due for payment, become immediately payable if:
(a) any money payable to Shipleys becomes overdue, or in Shipleys 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 Shipleys;
(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 remedies Shipleys may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions Shipleys may suspend or terminate the supply of Goods to the Client. Shipleys will not be liable to the Client for any loss or damage the Client suffers because Shipleys has exercised its rights under this clause.
21.2 Shipleys may cancel any contract to which these terms and conditions apply or cancel delivery of Goods at any time before the Goods are delivered by giving written notice to the Client. On giving such notice Shipleys shall repay to the Client any money paid by the Client for the Goods. Shipleys shall not be liable for any loss or damage whatsoever arising from such cancellation.
21.3 In the event that the Client cancels delivery of Goods the Client shall be liable for any and all loss incurred (whether direct or indirect) by Shipleys as a direct result of the cancellation (including, but not limited to, any loss of profits).
21.4 Cancellation of orders for Goods made to the Client’s specifications, or for non-stocklist items, will definitely not be accepted once production has commenced, or an order has been placed.
22. Privacy Act 1993
22.1 The Client authorises Shipleys or Shipleys agent to:
(a) access, collect, retain and use any information about the Client;
(i) (including 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 Shipleys from the Client directly or obtained by Shipleys 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.
22.2 Where the Client is an individual the authorities under clause 22.1 are authorities or consents for the purposes of the Privacy Act 1993.
22.3 The Client shall have the right to request Shipleys for a copy of the information about the Client retained by Shipleys and the right to request Shipleys to correct any incorrect information about the Client held by Shipleys.
23.1 Each party agrees to treat all information and ideas communicated by the other party confidential and each agrees not to divulge it to any third party, without the other party's written consent.
23.2 The proposal or quotation and any information contained therein provided by Shipley to the Client is done so on a “commercial in confidence” basis thereby, the Client agrees not to reproduce or provide said information in any manner to any third party without the prior written approval of Shipley.
24. Force Majeure
24.1 Subject to clause 24.2, neither party shall be responsible for any delays in Delivery or collection due to causes beyond their control (including, but not limited to, acts of God, war, terrorism, mobilisation, civil commotion, riots, embargoes, orders or regulations of governments of any relevant jurisdiction, fires, floods, strikes, lockouts or other labour difficulties, shortages of, or inability to obtain shopping space, or land transportation).
24.2 Nothing in clause 24.1 will limit or exclude the Client’s responsibility and liability under this contract for Equipment that is lost, stolen or damaged beyond fair wear and tear during the Term, or had broken down, or become unsafe to use as a result of the Client’s conduct or negligence.
25. Unpaid Seller’s Rights
25.1 Where the Client has left any item with Shipleys for repair, modification, exchange or for Shipleys to perform any other service in relation to the item and Shipleys has not received or been tendered the whole of any monies owing to it by the Client, Shipleys shall have, until all monies owing to Shipleys are paid:
(a) a lien on the item; and
(b) the right to retain or sell the item, such sale to be undertaken in accordance with any legislation applicable to the sale or disposal of uncollected goods.
25.2 The lien of Shipleys shall continue despite the commencement of proceedings, or judgment for any monies owing to Shipleys having been obtained against the Client.
26. Service of Notices
26.1 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.
26.2 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.
27. Construction Contracts Act 2002
27.1 The Client hereby expressly acknowledges that:
(a) Shipleys 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 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 Shipleys by a particular date; and
(iv) Shipleys have given written notice to the Client of its intention to suspend the carrying out of construction work under the construction contract.
(b) if Shipleys suspend 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 Shipleys exercise the right to suspend work, the exercise of that right does not:
(i) affect any rights that would otherwise have been available to Shipleys under the Contractual Remedies Act 1979; 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 Shipleys suspending work under this provision.
28.1 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.
28.2 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 Christchurch Courts of New Zealand.
28.3 Shipleys 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 Shipleys of these terms and conditions (alternatively Shipleys liability shall be limited to damages which under no circumstances shall exceed the quoted Price of the Goods and Services).
28.4 Shipleys may licence and/or assign all or any part of its rights and/or obligations under this contract without the Client’s consent.
28.5 The Client cannot licence or assign without the written approval of Shipleys.
28.6 Shipleys 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 Shipleys sub-contractors without the authority of Shipleys.
28.7 The Client agrees that Shipleys 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 Shipleys to provide Goods to the Client.
28.8 Both parties warrant that 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 binding and valid legal obligations on them.