GENERAL TRADE TERMS
SURVEY WORX LTD (“Survey Worx”) provides professional surveying services (“the services”) to the Client (as noted on the quote form) (“the Client”) under commercial arrangements in accordance with the following Standard Terms and Conditions.
The Client agrees to be bound by and comply with the Standard Terms and Conditions as outlined below.
1. SCOPE OF WORKS
The Client shall provide to SURVEY WORX all necessary information and specifications relating to the Client’s requirements for the project (“Scope of Works”). The nature and extent of the services which SURVEY WORX provides to the Client shall be determined on the basis of this 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.
2. PROJECT TEAM
SURVEY WORX will provide a Project Team capable of providing the services specified in the Scope of Works. Members of the Project Team may vary from time to time subject to availability, requirements of other SURVEY WORX projects; leave requirements, specific skill sets applicable to different stages of the project, and other factors which may arise from time to time.
The fees for the project 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.
4. OPERATING HOURS
Standard operating hours are between 06:00 and 18:00 Monday to Friday, 08:00 – 13:00 Saturday. Unless otherwise agreed between SURVEY WORX and the Client, SURVEY WORX will endeavour to complete all services during standard operating hours. If a situation arises which requires services to be provided outside the standard operating hours, reasonable attempts will be made by SURVEY WORX to gain prior approval from the Client.
No amendment or variation of the SURVEY WORX standard terms and conditions is valid and binding on SURVEY WORX unless it is in writing and signed by a Director or other authorised officer of SURVEY WORX.
A provision of the SURVEY WORX standard terms and conditions may not be waived except in writing and signed by a director or other authorised officer of SURVEY WORX. No waiver or breach of any provision of the SURVEY WORX standard terms and conditions shall constitute a waiver or breach of any other provision.
If not allowed for 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 project. 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.
8. PAYMENT TERMS
The Client shall pay the fees, including GST without any set-off 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 project.
9. VARIATION TO COSTS
In the event that the Scope of Works for the provision of services is amended, 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 such amended scope as is agreed in writing between SURVEY WORX and the Client. SURVEY WORX will only accept variation work from the Client’s duly authorised representative. 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.
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.
11. OVERDUE PAYMENTS
SURVEY WORX shall be entitled to charge interest on the outstanding fees, the percentage rate being the current Westpac 30 Day Bank Bill Rate plus three (3) per cent. Payment of the interest charges will not relieve the Client of the obligation to pay the outstanding fees. In relation to any Building and or Construction projects, all claims for payment made by SURVEY WORX shall be subject to the Construction Contracts Act 2002.
12. 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.
13. LEGAL COSTS
All legal costs (on a full indemnity basis), charges, duties and other expenses incurred by SURVEY WORX in respect of this Agreement or the securities or other documentation required hereunder or in relation to registering, maintaining or releasing any security interest, charge or caveat (including the cost of registering any financing statement or financing change statement), or incurred as a result of the Client failing to perform its covenants and obligations contained herein, shall be paid by the Client to SURVEY WORX. The expenses include but are not limited to; the commission payable to a mercantile agent or a debt collector to pursue or recover outstanding monies pursuant to this agreement and the liability to pay this commission arises at the time the recovery is placed in the hands of the debt collector. The Client agrees that it is liable for and will pay any stamp duty assessed on this document.
If the Client defaults in the due and punctual observance of all or any of its obligations or covenants under these terms and conditions, all monies owed by the Client to SURVEY WORX shall become immediately due and payable.
15. COPYRIGHT RETAINED
SURVEY WORX shall retain copyright in all proposals, tenders, documents, drawings, calculations, designs, plans and data (“the Data”) prepared by it in relation to the project, and in any works executed from them. SURVEY WORX also reserves all present and future moral rights in all intellectual property in the Data, and in any works executed or to be executed from them. The Data must not be given, reproduced or disseminated, to any person, public authority, institution or organisation without the express permission of a duly authorised representative of SURVEY WORX.
16. LICENCE TO USE THE DATA
SURVEY WORX shall grant the Client a license to use the Data in connection with the project, conditional upon the following:
- the licence applies only to the project or that part of the project to which the Data relates;
- SURVEY WORX has completed the particular stage or stages of the project for which SURVEY WORX has been commissioned; and
- all fees properly due to SURVEY WORX have been paid.
17. EMPLOYMENT OF SURVEY WORX PERSONNEL
Approaches made whether directly or indirectly to SURVEY WORX personnel regarding employment opportunities with the Client or a related entity or associate of the Client (as defined in the Corporations Act) during the provision of services by SURVEY WORX to the Client, or within 12 months of cessation of those services, would place those individuals in breach of their SURVEY WORX
- Employment Contracts. Consequently, irrespective of which party initiates discussions in this regard, the process for determining an equitable outcome for all parties shall be as follows: Should the Client or a related entity or associate of the Client (as defined in the Corporations Act) wish to make an Employment Offer to an SURVEY WORX employee, the Client shall ensure direct contact in the first instance should be made with the SURVEY WORX General Manager.
- The SURVEY WORX General Manager will then act as the point of liaison between the Client or a related entity or associate of the Client (as defined in the Corporations Act) and the respective SURVEY WORX employee in relation to the offer, as well as in relation to the logistics of the transfer of employment should the offer be accepted.
18. DISPUTE RESOLUTION
In the event of 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 Institute of Mediators and Arbitrators.
SURVEY WORX may terminate the Agreement entered into with the Client:
- If the Client defaults in the due and punctual observance of all or any of its obligations or covenants under that Agreement
- In the event of monies payable to SURVEY WORX pursuant to these terms and conditions being outstanding for more than thirty (30) days;
- In the event of any other breach by the Client of its obligations under such Agreement, which breach is not remedied within thirty (30) days of written notice from SURVEY WORX requiring the breach to be remedied;
- 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;
- Upon giving the Client thirty (30) days written notice of its intention to do so; and
- 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 its obligations under any Agreement entered into with SURVEY WORX:
- In the event of a breach by SURVEY WORX of its obligations under such Agreement, which breach is not remedied within thirty (30) days of written notice from the Client requiring the breach to be remedied;
- Upon giving SURVEY WORX thirty (30) days written notice of its intention to do so.
If the Agreement is terminated by either party, the Client is still obligated to pay all monies owed to SURVEY WORX for services performed up to and including the date of termination pursuant to these terms and conditions as well as for the costs incurred by SURVEY WORX in relation to demobilising personnel and equipment from site.
20. PROJECT SITE – CONSTRUCTION & BUILDING & CIVIL
The project site must be prepared by the Client prior to any survey works commencing. Any delays or rescheduling costs incurred will be an additional charge under the terms and rates herein. Specifically, the Client must ensure that the working area 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.
21. PROJECT SITE – SURVEY WORX
Access arrangements to the site are to be the responsibility of the Client. The price quoted assumes that access to the site will be unhindered. The Client must ensure that the site is a safe working environment and complies with all occupational health and safety requirements and that any potential dangers are communicated to SURVEY WORX before entry to the site. Any delays or rescheduling costs incurred will be an additional charge under the terms and rates herein.
22. NO WARRANTIES
Notwithstanding anything contained herein the Client acknowledges that no representation, warranty or condition, express or implied, is given by SURVEY WORX that the services provided comply with the rules, regulations, laws and legislation of the place where the services are being provided and SURVEY WORX will not be liable under any circumstance for any claims, losses or damages of any kind whatsoever (including but not limited to any indirect, special or consequential damage or injury to any person, corporation or other entity) by reason of or arising out of the services not complying with such rules, regulations, laws and legislation, or by reason of or arising out of any inaccuracy, error or omission in the information provided by or to SURVEY WORX.
Where the New Zealand Consumer Law and other laws imply conditions or warranties in certain contracts and also give parties to those contracts certain other rights against suppliers of goods and services, to the extent that it is not lawful or possible to exclude them, then such conditions, warranties or other rights shall (but only to the extent required by law) apply to these terms and conditions and all other conditions, warranties or rights which might but for this provision be implied are hereby expressly excluded. Where the law implies any term or warranty into these terms and conditions which cannot be excluded, then the liability of SURVEY WORX for any breach of such term will be limited in the manner permitted under the New Zealand Consumer Law to either supply of the services again or payment of the cost of having the services supplied again (as SURVEY WORX may determine).
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.
24. SECURITY INTEREST
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.
- 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.
- 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.
- 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.
The Client warrants and agrees that where it is, at the time of executing this document or at any time thereafter, a trustee of any trust (the “Trust”):- (a) to produce a stamped copy of the Trust deed (with all amendments) if and when requested by SURVEY WORX; (b) that it has full power and authority to execute, or continue with its obligations under, this Agreement on behalf of the Trust as it is doing so in its individual capacity and in its several capacity as trustee; (c) that it shall be bound by the terms and conditions of this Agreement in its individual capacity, or further or alternatively, in its several capacity as trustee; and (d) that the assets of the Trust shall be available to meet payment of its obligations to SURVEY WORX.
If the Client (a) defaults in the due and punctual observance of all or any of its obligations or covenants under this agreement; or (b) 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, then all monies owed by the Client to SURVEY WORX shall become immediately due and payable to SURVEY WORX without prejudice to any right or remedies open to it may:
(a) treat as discharged all or any obligation arising from any agreement with the Client;
(b) retain any security given or monies paid by the Client or available though the enforcement of any guarantee, security or bond and apply this in reduction of any sum of
money owed or owing by the Client to SURVEY WORX;
(c) appoint in writing any person or persons to be a receiver or receiver and manager of the property charged under clauses 23 and 24 above or any part of the charged property. The receiver so appointed shall be the agent of the Client and the Client shall be solely responsible for all acts and omissions by the receiver appointed under this clause and for the remuneration of the receiver. The receiver shall without the need for any consent on the part of the Client have all the powers conferred on a receiver under the Companies Act 1993;
(d) exercise any other right or remedy available to it under the PPSA including to enforce the security interests created by this agreement.
27. JOINT AND SEVERAL LIABILITY
If the Client comprises two or more parties each of those parties is jointly and severally liable on the covenants and obligations herein.
The relationship between SURVEY WORX and the Client shall be governed and construed in accordance with the national laws and the parties shall submit to the jurisdiction of the
Courts of that state and waives any right to object to any proceedings being brought in those Courts.
If any part of these terms and conditions become void or unenforceable then that part 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 and conditions 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 and conditions.
To give effect to its obligations under this Agreement the Client hereby irrevocably appoints any solicitor for SURVEY WORX, from time to time, as its attorney to do any act or thing which they are required to do under this Agreement.
Where there is any inconsistency between these terms and conditions and any of the Client’s prior or subsequent terms and conditions, the terms and conditions herein prevails.