LoKate Services Ltd. Terms of Trade.
TERMS OF SERVICE
1. How
these Terms Apply You are taken to have exclusively accepted and are
immediately bound, jointly and severally (where there is more than one
purchaser), by these terms of service when any one of the following occurs:
a.
place an order or booking for Services from us
directly or via any third-party; and/or
b.
accept our Services by permitting entry by us to
the nominated Site to perform Services; and/or
c.
issue a purchase order to us following receipt
of an Order,
and together these terms apply in conjunction with any specific exclusions or additional terms specified in any Order.
2. Our
Contract Your acceptance of the Order and these general terms together
constitute our agreement with you (this Contract). This Contract governs
the agreement between LOKATE SERVICES LIMITED - COMPANY NUMBER 48071190 (“we”
“us” and “our”) and you, the
named client in the Order, in respect of the Services.
3. “Business Days” Any reference to ‘Business Days’ in these terms means a day on which banks are ordinarily open and excludes a Saturday, a Sunday or a public holiday. Any other reference to a ‘day’ shall mean a calendar day.
4. “Deliverables” means an output resulting from the delivery of any Services supplied in accordance with the requirements of the Order, including, but not limited to, any Reports, data, template, methodology, process documents, CAD drawings, designs, imagery or other such documentation supplied or developed, created or produced by us in connection with the Services.
5. “Order” means any quotation, cost estimate, work order, statement of work, online booking, phone booking, invoice and any other documentation setting out our scope of Services.
6. “Services” means all and any underground utility services, GPR (ground penetrating radar) surveying, Precision GIS mapping together with any consulting, project management or other services offered by us.
7. “Site” means the residential dwelling or commercial Site at which Services are to be performed (as the context requires).
8. “Report” means any report issued in connection with the Services (as the context requires).
9. “You” Means the purchaser buying the Services as specified in any invoice, Order, or any other document. If the purchaser comprises more than one person, each of those persons’ liability and agreement is joint and several.
10. “Us, “Our,” or We” includes any contractor, employee, assignee, agent, transferees or approved subcontractor that we use.
11. Statutory
References In these terms, a reference to a statute or statutory provision
includes a reference to that statute or statutory provision as modified,
consolidated and/or re-enacted from time to time and any subordinate
legislation made under that statute or statutory provision.
OUR SERVICES AND OBLIGATIONS
12. Services
Our Services include:
a.
Underground utility services location; and
b.
GPR (ground penetrating radar) surveying; and
c.
Precision GIS mapping; and
d.
Consulting and project management services; and
e. any other services described in the Order.
13. Scope Variations Where informed in advance, we will confirm any additional Services required via a Scope Variation email and/or an updated Order. Scope variations requested whilst attending a Site may be accepted at our discretion and a repeat visit may be required, all of which may be subject to additional fees and disbursements in accordance with these terms.
14. Subcontractors Either we or our approved subcontractors will perform the Services for you.
15. Performance We will perform our Services with due skill and care and in a competent manner.
16. Licences Where required by law, we hold the applicable licences and accreditations to perform the Services.
17. Updates on Timing We will advise you of any anticipated delay to provide a Service.
18. Timeframes
to Perform Services We use reasonable efforts to estimate the time to
perform the Services, but such timeframes are indicative only.
YOUR OBLIGATIONS
19. Authority for Instructions You must supply us with a single point of contact for the Services.
20. Third Party Instructions If you are instructing us on behalf of your own client, you must ensure you have the necessary authority to instruct us and will be the party invoiced for our Services unless and until we have received an Order from your client directly.
21. Consents
You must make your own enquiries relating to the requirement of any
consents required to enable us to access the applicable Site to perform the
Services and you must arrange for all such consents to be obtained at your sole
cost, including, but not limited to,
a.
Building owner consent where you are a
commercial tenant; or
b.
Landlord consent where you are a
residential tenant; or
c. Territorial or Local Authority consent from a third party, territorial authority, road corridor manager or other authority in connection with the Site.
22. Site
Access You must arrange the following in advance of us commencing the
Services:
a.
Access you must arrange access to the Site
including, where applicable, gate access; and
b.
Deactivate alarm systems you must
deactivate alarm systems; and
c.
Secure dogs you must ensure dogs are
adequately restrained, crated or located in a closed environment (e.g. a
garage, kennel) while the Services are being performed; and
d.
Remove obstructions this includes the
removal of obstructions to access to the Site.
DISCLAIMERS
23. Underground
Service Locates You acknowledge and accept that:
a.
Plans are indicative only All and any plans
provided by service companies, local authorities and Before-U-Dig are supplied
as a general guide as to the location of cables or other underground services
at the time of installation. The plans may not have been updated; and
b.
Services locates are indicative You acknowledge
that the Services are intended to assist in indicating underground services
shown on plans provided by service companies or councils. The procedures and
equipment used by us cannot be relied upon to detect all underground services
and cannot be relied on for that purpose; and
c.
Depths you acknowledge that the equipment
and procedure to locate underground utility services does not provide a
reliable guide as to the depth of any cable or other underground services; and
d. Locates without plans Services requested to be located without plans are performed using our reasonable endeavours only and may be less accurate than locates performed with plans.
24. Machine excavation You are solely responsible for hand-digging or potholing to confirm the position and depth of all cables and other underground services by careful digging with hand tools prior to machine excavation at the Site.
25. GPR
Surveying The following apply:
a.
Drawings are indicative only and may not
accurately represent all services; and
b. Where we supply files in a specific transmission method requested by you (such as .dwg drawings), we make no representation these can be uploaded into your own document management system.
USE OF REPORTS
26. Reliance The information and contents of any Report is confidential and is for your exclusive use and that of any nominated additional addressee and is valid as at the date of issue only. Where we state that information is indicative only, we offer no representation or warranty as to the accuracy of that data.
27. Report-Addressee We disclaim all responsibility and accept no liability for use of a Report by any party other than you or a specified addressee agreed as at the date of the Order or as later agreed by us in writing. You are prohibited from altering the addressee of a Report and must obtain our express consent to re-issue any Report to alternative or additional addressee. This may be subject to an additional fee.
28. No Future Warranty A Report provides our assessment as at the date of performance of the Services only and may not be relied upon past the date of issue.
29. No
Reliance on Verbal Discussions We accept no responsibility for your
reliance or that of any third-party in respect of our verbal comments.
INTELLECTUAL PROPERTY
30. Ownership
of Intellectual Property the following applies:
a.
Pre-existing Intellectual Property
remains the property of its owner; and
b.
New Intellectual Property in any Deliverables
becomes your property when they are transmitted to you by us; and
c. New Intellectual Property that is not in the Deliverables will become the property of the party that created it.
31. Licence We grant you a perpetual, non-exclusive, worldwide, transferable, sub-licensable, irrevocable and royalty-free licence to use, for any purpose, all Intellectual Property in the deliverables that is not owned by you to receive the full benefit of the Services and deliverables, and use, copy, modify and distribute the deliverables.
32. Warranties
relating to Intellectual Property We warrant that we are legally entitled
to grant the licence in the clause above and your use of anything provided by us
and incorporated in the Services and Deliverables will not infringe the rights,
including Intellectual Property Rights, of any third party.
FEES
33. Pricing
is Indicative Only We reserve the right to charge for all actual hours,
third party costs and expenses, regardless of the indicative pricing supplied at
the time of Order, including but not limited to the following situations:
a.
Complex the Site area is more complex
than we could reasonably anticipate; and/or
b.
Repeat Visits are required due to Site
not being available; and/or
c.
Customer Obligations have not been
fulfilled requiring additional time or repeat visits; and/or
d. Specialist Subcontractors specialists are required or traffic management is required at additional cost.
34. Time and Materials Where the cost to perform the Services are estimated on a time and materials basis, you shall be invoiced for the actual hours incurred to perform the Services up to the date of the applicable invoice together with any third-party costs (including, but not limited to, specialist sub-contractors, traffic management and LINZ title search fees) required to meet the scope of Services.
35. Minimum Site Attendance Fees Our Services are subject to the following payment terms:
a. Minimum Fees Apply a minimum hourly rate or call-out rate current as at the date of the Order shall be charged; and
b. Out of Hours and Weekends out-of-hours, weekend or public holiday rates may apply and may incur a higher rate than our standard hourly rate or call-out rate; and
c. Travel we may add travel costs in addition to our call-out fees; and
d. No Show Fees where we attend your call-out and cannot access the Site, the full call-out fee plus applicable travel costs shall apply.
PAYMENTS AND INVOICING
36. Third Party Engagements Where we have been engaged by you as third party on behalf of your own client, our fees are due and payable by you unless we have a direct Order placed with us by your client.
37. Amounts Owing Payable on Due Date All amounts specified in an invoice will require payment on the due date specified in the invoice (Amounts Owing).
38. Invoice Payable Prior to Release of Deliverables All amounts specified in your invoice are payable in advance of release of any Deliverables unless expressly agreed otherwise by us in writing.
39. Third Party Card Handling Fees We reserve the right to on-charge any third-party transaction fees associated with online card payment to your invoice or online payments. These may be subject to change without notice and the applicable % shall be published on our website or invoices. This shall be current as at the date of the applicable booking.
40. No Set Off or Deduction Payment of Amounts Owing Amounts Owing which are due and payable must be made without set-off or deduction of any kind.
43. Overdue Amounts Owing Where you do not pay an Amount Owing by the due date stated in an invoice, this immediately becomes an “Overdue Amount Owing”. After a period of 5 (five) Business Days, we shall have the right to apply default interest at a rate of 5% per month on the Overdue Amount Owing (or such rate published on our invoices if different). This shall be calculated daily and compound monthly at that rate if we elect to do this. This applies before and after any judgment (if applicable).
45. Debt Collection or Recovery Costs If an Overdue Amount Owing remains unpaid for 14 (fourteen) Business Days or more, we reserve our rights to engage the services of a debt collection agency or solicitor to take proceedings to recover the Overdue Amount Owing. You will be liable for the costs incurred by us in the collection of any unpaid amounts including but not limited to legal costs, debt collection fees and internal administration fees.
45. Administration Fees Where we perform
any additional actions to recover any monies owed by you, we reserve the right
to apply reasonable administrative fees up
to $50 per overdue invoice for phone calls, texts, emails and in-person
visits to follow up and recover any Overdue Amount Owing in addition to any
costs or expenses stated in any clauses above.
TRADE CUSTOMERS
46. Trade Credit Where you are a commercial client and you wish to be granted a credit line with us, the following applies:
a. Credit application the supply of Services on credit may be subject to the requirement to complete a credit application with us; and
b. Personal guarantee we may request a personal guarantee from one or more directors; and
c. Credit limit exceeded if the supply of Services requested exceeds your credit limit and/or the account exceeds the payment terms or your account with us is in arrears, we reserve the right to refuse to perform further Services until the arrears are cleared in part or in full.
CANCELLATION OF AN ORDER
47. Cancellation by You Where you request a cancellation of a Service, you must provide us with no less than forty-eight (48) hours’ notice. Where such notice is not supplied, we reserve the right to charge a minimum call-out fee. Cancellation by Us Without prejudice to our other remedies at law, we reserve our rights to terminate an Order (which includes any part the Services that remain unfulfilled) and shall not be liable to you for any delay, loss or damage suffered by you due to us exercising our rights under this clause, where:
48. Cancellation by Us Without prejudice to our other remedies at law, we reserve our rights to terminate an Order (which includes any part the Services that remain unfulfilled) and shall not be liable to you for any delay, loss or damage suffered by you due to us exercising our rights under this clause, where:
a. Inability to Access Site we are denied access to or are unable to access the Site to carry out the Services for whatever reason and we cannot reschedule to access at a later date; and
a.
Health and safety where we assess that
the means of access to the Site or the whole or part of the Site is unsafe and
would breach the relevant safety requirements under applicable health and
safety legislation, and such safety concerns or issues cannot or will not be
remedied by you.
INSURANCE
49. Insurance
Risk We confirm that we hold all appropriate insurances for the purposes of
performing the Services, including but not limited to, professional indemnity
insurance and public liability insurance.
VARIATIONS
50. Variations to Price or Time We reserve
the right to charge addition fees, alter any fixed the price or extend the time
to complete the Services in any one or more of the following circumstances:
a.
Site
extension or change where an extension to the Site area or change to the
Site location is requested; and/or
b.
Change to
commencement date where a change to the date for commencement agreed upon
in our Order is requested; and/or
c.
Customer
Obligations incomplete where we are delayed or where we have to perform
additional works to manage, assist with or co-ordinate any site preparation
works which form your Customer Obligations; and/or
d. Any other impacts where there is a requirement for us to extend the time or cost it takes to supply or complete the Services due to the impact of any other changes which are not listed above but which we deem in our reasonable opinion are a Variation.
51. Undetected or unforeseen issues where
the Services are required to be suspended or extended due to the discovery of
hidden or unidentifiable difficulties (noting that we reserve our right to
exercise our reasonable judgment as to what constitutes “hidden or
unidentifiable difficulties” based on our industry expertise). These include, but
are not limited to:
a.
poor weather conditions; and/or
b.
limitations to accessing the Site to perform the
Services; and/or
c.
prerequisite work by a third party not being
completed; and/or
d. encountering hazardous waste or contaminated ground, soil, material or waste where we are performing Services.
52. All Rights Reserved to Decline a Variation We reserve our right to decline to treat this as a Variation. In some circumstances, we may elect to treat the Variation request as a new Order.
53. Written Variations We shall supply you with a written Variation Order stating the changes to the Order, how the price change has been or will be calculated, any extension of time required and state any additional customer obligations to accommodate the Variation. This will be supplemental and in addition to the Order and forms part of this Contract.
WARRANTIES
55. Consumer Guarantees Act If you are a customer in trade or business, the provisions of the Consumer Guarantees Act 1993 (CGA) shall not apply. Otherwise, the CGA will apply.
56. Health & Safety at Work Act 2015 We
shall comply with meeting our obligations for health and safety laws in the
workplace including where we are acting as a sub-contractor for third party
head contractor.
LIMITATION OF OUR LIABILITY
57. Limit of Liability Our total aggregate liability to you arising out of or in connection with the Services whether in contract, any indemnity, tort (including negligence) by statute or otherwise at law or in equity is limited to an amount equivalent to the value of the applicable Services performed under these terms or $500, whichever is the lowest.
58. Exclusion of Our Liability To the fullest extent permitted by law, and subject to our obligations under any applicable law that imposes guarantees on us, we exclude all liability to you for any indirect claims, expenses, losses, damages and costs (including any incidental, special and/or consequential damages or loss of profits, loss of anticipated savings or loss of expenses suffered or incurred by you resulting (either directly or indirectly) in connection with the Services.
59. When Limitations of Liability Cannot Apply These clauses do not limit our liability to the extent that it cannot be limited at law and/or arises out of or in connection with any wilful default, fraud or criminal conduct by us.
60. Force
Majeure We shall not be liable for any delay or failure to perform the
Services due to a force majeure event. For the purposes of these terms, “force
majeure” means an event or circumstance which leads to a default of either
party under this Contract due to any act of God, war, terrorism, strike,
lock-out, industrial action, fire, flood, storm, port closure or border closure
plus any national or global pandemic effects, including, for the avoidance of
doubt, any default due to any implementation of any regulation, directive, rule
or measure by any government, state or other authority under the governing law
of this Contract.
DISPUTE
61. Details of the Dispute must be Supplied If you or we consider that a dispute has arisen in relation to any matter governed by this Contract, you must give us written notice outlining the basis of the dispute within ten (10) Business Days of the date of the Report.
62. Remedy
Where we agree a remedy is available, your remedies are limited to a
re-performance of the Services only (at our discretion).
PRIVACY
63. You authorise us and our agents to collect, use, retain and disclose “personal information” (as defined in Part 1, section 7 of the Privacy Act 2020) about you and your personnel that you or they provide to us for the following purposes:
a. assessing creditworthiness and exercising our rights and/or performing our obligations under this Contract; and/or
b. using the services of credit reporting and debt collection agencies and you consent to us disclosing personal information (including any information about default and repayment; and/or
c. history) to a credit reporter, who may hold that information and use it to provide its credit reporting services; and/or
d. registering any Security Interest under this Contract; and/or
e. the use or transfer of personal information to a Related Company (as such term is defined by Companies Act 1993) in connection with the performance of our obligations or exercise of our rights under this Contract.
64. The clause above is authority and consent from you in accordance with sections in Part 3, Part 7, subpart 1 and all other relevant sections in the Privacy Act 2020.
65. You
(if you are an individual) have the right under sections in Part 4, subpart 1
and Part 4, subpart 2 of the Privacy Act 2020 to access, and request correction
of, any of your personal information held by us and if you provide any personal
information about a third party (including your Personnel) to us, you confirm
that you are authorised to do so by the relevant individual and you have
informed the relevant individual that they have the right to contact us to
access and, if applicable, request correction of any personal information that
we hold about them.
GENERAL
66. Promotional Materials We reserve all rights to use images, videos, photographs and any other media format to display samples of our completed projects, plans, drawings or other content on any platform of our choice without any prior consent or notification to you. Such platforms include, but not limited to, website and social media platforms used in the course of our business. You provide a waiver of all and any intellectual property rights in such images and acknowledge that the copyright to such images or media belongs to us. We warrant that we will not include any identifying imagery or information that would personally identify any individual or include any images of children or address data.
67. Governing Law This Contract shall be governed by the laws of New Zealand and the parties irrevocably submit to the exclusive jurisdiction of the courts of New Zealand.
68. Severability If and to the extent any provision or part of a provision is illegal or unenforceable, such provision, or part of a provision will be severed from this Contract and will not affect the continued operation of the remaining provisions of this Contract.
69. Entire Agreement This Contract sets out the entire agreement between the parties.
70.
Electronic Acceptance The parties
agree that any legal requirement may be met by using electronic means in
accordance with the Contract and Commercial Law Act 2017. In this clause the
term “legal requirement” has the meaning given to it by section 219(2) of the
Contract and Commercial Law Act 2017.
END OF TERMS