BAYLAND LIMITED PARTNERSHIP
Terms and Conditions of Trade
As at February 2021
1. ACCEPTANCE OF TERMS
1.1 By ordering Services from us, you agree to be bound by these Terms.
1.2 We reserve the right to amend these Terms. We will notify you of any amendments in writing, such amendments will be effective from the date you accept the amendments, or the date you subsequently order Services from us.
1.3 These Terms along with any written Agreement entered into with us for the provision of the Services constitute the entire agreement between us and supersede all previous agreements, arrangements or understandings. Where we have entered into an Agreement with you in writing, that Agreement will prevail over these Terms if there is any inconsistency.
2.1 Interpretation: In this agreement, unless the context otherwise requires:
“Agreement” means any written agreement signed by you and us relating to the provision of Services.
“Business Day” means any day other than a Saturday, Sunday or a day which is a public or regional holiday in Tauranga, New Zealand;
“Commencement Date” means the date that we agree to start providing the Services to you;
“Engagement” means any period of work where we provide Services requested by you;
“GST” means Goods and Services Tax pursuant to the Goods and Services Tax Act 1985.
“Intellectual property” includes trademarks and trade names, brands, logos, copyright materials, concepts, processes, plans, specifications, know-how, inventions, trade secrets, and other intellectual property rights of all kinds;
"Price" means the price payable for the Services;
“Rates Schedule” means our rate schedule as amended by us from time to time;
“Services” means the provision of labour services to you through Temporary Workers and any other services provided by us to you from time to time;
“Terms” means these terms and conditions of trade;
“Temporary Workers” means any temporary labour hire staff provided by us to you;
“We”, “Our” and “Us” means Bayland Limited Partnership;
“You” means the person or entity ordering or receiving the Services.
3.1 The Price is based on our Rates Schedule prevailing at the date of acceptance of your order.
3.2 Unless otherwise stated, the Price does not include GST which will be payable in addition to the Price.
3.3 We can provide you with an estimate on request. An estimate is not a quote and is not binding on us.
4.1 You agree to pay to our nominated bank account the Price plus GST without set-off or deduction.
4.2 Payment is due on the 7th day following the date of the invoice.
4.3 Without prejudice to our other rights and remedies under these Terms or at law, if payment is not made by the due date, you will pay default interest at a rate of 2.0% per month of the total outstanding balance (compounding monthly), calculated from the due date until payment is made.
5.1 Without prejudice to our other remedies at law or under these Terms, we are entitled to suspend or cancel all or any part of the contract recorded in these Terms upon the happening of any of the following events of default:
(a) if any amounts payable by you to us are overdue;
(b) if you fail to meet any obligation under these Terms;
(c) if you become insolvent, if a receiver is appointed in respect of your assets, or an arrangement with your creditors is made or is likely to be made;
(d) if you cease or threaten to cease carrying on business; or
(e) if your ownership or effective control is transferred without our prior written consent.
5.2 Upon cancellation of the contract recorded in these Terms all sums owing by you to us will become immediately due and payable.
6.1 You agree that you are acquiring the Services in trade and agree to contract out of the CGA so that the CGA will not apply; the parties agree that it is fair and reasonable that such provisions are contracted out of.
6.2 Subject to any express warranties confirmed in the Agreement by us, to the maximum extent permitted by law all warranties implied by customary practice, statute or at law are excluded.
6.3 Services which do not comply with any express warranty will at our discretion be re-performed or the price for the affected Services credited to your account or refunded.
6.4 Any right which you may have to make a claim in respect of incorrect or defective Services will only be effective if you notify us in writing specifying the details of the discrepancy or fault or defect within 7 days of delivery or completion and we are given a reasonable opportunity to investigate the claim and rectify the Services.
6.5 We will not be liable for any defect when an unauthorised person has attempted to rectify the Services.
6.6 We will not be liable in any way whatsoever to you or any third party whether in contract, tort (including negligence) or otherwise for any loss or damage suffered where:
(a) we have supplied you with Services only and you or a third party have provided the instructions, planning and/or process for the Services and the loss or damage arises directly or indirectly in relation to the instructions, planning and/or process for the Services.
6.7 To the maximum extent permitted by law, our maximum liability for any cost, loss, damage or claim arising out of or in connection with these Terms, or directly or indirectly in relation to any Services, whether in contract, tort (including negligence) or otherwise, will be limited to the lesser of:
(a) the amount actually paid by you for the affected Services; or
(b) the actual loss or damage suffered by you, provided that in no circumstances will our maximum aggregate liability exceed an amount equal to $1 million.
6.8 We will not be liable in any way whatsoever to you or any third party, whether in contract, tort (including negligence) or otherwise, for any indirect, special or consequential loss or damage howsoever arising.
7. HEALTH AND SAFETY
7.1 You will comply with your obligations under the HSWA (and any applicable regulations or codes of practice made pursuant to the HSWA) to ensure that, in performing your obligations under these Terms, a safe working environment exists for:
(a) our employees and contractors and your own employees and contractors; and
(b) third parties entering or on your workplace while we are providing Services to you.
7.2 You warrant that in respect of any Services carried out at your workplace that you will comply with, and ensure that, all statutory and contractual procedures and precautions and New Zealand standards relevant to the Services are complied with.
8.1 You will upon demand pay all our expenses and legal costs (on a full indemnity basis) in connection with the registration of a financing statement or financing change statement relating to the Security Interest created by these Terms or for the collection of overdue moneys or the exercise, enforcement or preservation of any right or interest under these Terms.
9. CREDIT TERMS
9.1 We reserve the right in our sole discretion to grant or decline to grant credit to you and to suspend or cancel any credit entitlement with effect from the date of notification to you. If your credit account is cancelled, then all amounts outstanding will become immediately due.
9.2 We reserve the right to impose a credit limit which may be altered at our sole discretion with effect from the date of notification to you. If the credit limit is at any time exceeded that will constitute a default under these Terms. We may, in addition to our other remedies, refuse to accept any further orders from you and/or withhold delivery of any Services ordered by you until the breach is remedied to our satisfaction.
9.3 On our request, you agree to:
(a) present any financial or accounting statements or bank documentation required by us to determine your financial viability;
(b) arrange for your liability to be guaranteed by third persons or secured by securities on terms satisfactory to us. These requirements may be imposed by us at any time and we may suspend your entitlement to credit and Services pending fulfilment to our satisfaction.
9.4 You authorise us to disclose any information provided by you in our credit application to any person or organisation for the purposes of assessing your credit worthiness or administering or enforcing these Terms. We may also disclose any information we obtain about your credit or payment history which we acquire in the course of supplying Services to you to any credit reporting, credit enforcement or debt collection agency.
10. INTELLECTUAL PROPERTY
10.1 All intellectual property rights including (but not limited to) patent rights, registered designs, copyright, and all drawings, specifications and other technical information, contained within any document produced by us, or arising out of performance of any contract by us, remain vested in us.
You agree that you, your employees or agents will not at any time, directly or indirectly in any capacity canvass, solicit, entice or engage, or offer, or cause to be offered, employment or any other role to any person who is employed by or contracted to us. This restriction will continue for 6 months from the date we complete the provision of Services to you.
12.1 Our ability to deliver Services is subject to you obtaining all necessary licences, permits and other authorities. You are responsible for obtaining all building, licences and other permits in connection with the Services and for ensuring they comply with all statutory and regulatory requirements.
13. FORCE MAJEURE
We are not liable for any failure or delay in delivery of the Services or any failure to perform any other obligation caused or contributed by any circumstance beyond our reasonable control including acts of God, labour disputes, severe economic dislocation, failure of manufacturers or suppliers, war, terrorism, strikes, lockouts, perils of the sea, fire, pandemic or any other unforeseeable cause whatsoever.
14.1 We may subcontract any part, or all of the Services provided we remain responsible and liable for all acts and omissions of our subcontractors.
14.2 We may assign our rights and obligations under these Terms by providing notice in writing to you. You may not assign your rights and/or obligations under these Terms without our prior written consent.
14.3 If any provision of these Terms is illegal, invalid or unenforceable, such part, term or provision is deemed deleted from these Terms. Such deletion will not affect any other term or provision in these Terms.
14.4 Notices or other communications must be in writing (including email) and must be sent to the address/communication point of the other party most recently used by that other party.
14.5 These Terms and all aspects of the supply of Services are governed by New Zealand law. Both parties submit to the exclusive jurisdiction of the Courts of New Zealand.