1.1 ACP means Advanced Concrete Pumping and/or Advanced Concrete Placing, its successors and assigns or any person acting on behalf of and with the authority of ACP.
1.2 “Customer” means the person/s buying the Goods/Equipment Hire/Services as specified in any invoice, document, or order, and if there is more than one Customer is a reference to each Customer jointly and severally.
1.3 “Goods” means all Goods or Services supplied by ACP to the customer at the Customer’s request from time to time (where the context so permits the terms “Goods or Services” shall be interchangeable for the other). Services shall include but not be limited to the provision of all cartage services and supplies and all charges for labour and work.
1.4 “Equipment” means all Equipment including any accessories supplied on hire by ACP to the Customer (and where the context so permits shall include any supply of Services). The Equipment shall be as described on the invoices, quotation, authority to hire, or any other work authorisation form provided by ACP to the Customer.
1.5 “Price” means the Price payable for the Goods/Services as agreed between ACP and the Customer in accordance with clause 4 below.
2.1 The Customer is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Customer places a booking for or accepts delivery of the Goods/Equipment Hire/Services.
2.2 These terms and conditions may only be amended with ACP’s consent in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the Customer and ACP.
3.1 The customer shall give ACP not less than fourteen (14) days prior written notice of any proposed change or ownership of the Customer and/or any other change in the Customer’s details (including but not limited to, changes in the Customer’s name, address, contact phone number or business practice). The Customer shall be liable for any loss incurred by ACP because of the Customer’s failure to comply with this clause.
4.1 At ACP’s sole discretion the Price shall be either:
(a) as indicated on any invoice by ACP to the Customer; or
(b) ACP’s quoted price (subject to clause 4.2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.
4.2 ACP reserves the right to change the Price if a variation to ACP’s quotation is requested.
4.3 At ACP’s sole discretion a deposit may be required.
4.4 Time for payment for the Goods/Equipment Hire/Service being of the essence, the Price will be payable by the Customer on the date/s determined by ACP, which may be:
(a) on delivery of the Goods/Equipment Hire/Service.
(b) for certain approved Customer’s due twenty (20) days following the end of the month in which a statement is emailed to the Customer’s address for notices.
(c) the date specified on any invoice or other form as being the date for payment; or
(d) failing any notice to the contrary, the date which in fourteen (14) days following the date of any invoice given to the Customer by ACP.
4.5 Payment may be made by electronic/online banking to ACP.
4.6 Unless otherwise stated the Price does not include GST. In addition to the Price, the Customer must pay to ACP an amount equal to any GST ACP must pay for any supply by ACP under this or any other agreement for the sale of the Goods/Service/Hireage of the Equipment. The Customer must pay GST, without deduction or set off any other amounts, at the same time and on the same basis as the Customer pays the Price. In addition, the Customer must pay any other taxes that may be applicable to the Price except where they are expressly included in the Price.
5.1 Delivery of Goods/Equipment or arrival onsite of Service is taken to occur at the time that:
(a) the Customer or the Customer’s nominated carrier takes possession of the Goods/Equipment at ACP’s address; or
(b) ACP (or ACP’s nominated carrier) delivers the Goods/Equipment to the Customer’s nominated address even if the Customer is not present at the address.
(c) The Customer or nominated person/s is onsite at the time of arrival of ACP for Services undertaken by ACP. It is noted that all nominated person/s by the Customer is to stay onsite until the Service provided by ACP is completed and ACP has left site.
5.2 At ACP’s discretion the cost of delivery is in addition to the Price.
5.3 The Customer must accept that any booking time for delivery/service is an indicative time only and that if ACP is able to deliver/service
either earlier or later for any reason, ACP will contact the Customer accordingly and as promptly as possible. Some delays due to concrete delivery are unavoidable and ACP does not take any liability for factors out of our control.
6.1 Risk of damage to or loss of the Goods/Equipment passes to the Customer on delivery and the Customer must insure the Goods on or before delivery.
6.2 If any of the Goods/Equipment are damaged or destroyed following delivery, but prior to ownership/hire age passing to the Customer, ACP is entitled to receive all insurance proceeds payable for the Goods/Equipment. The production of these terms and conditions by ACP is sufficient evidence of ACP’s rights to receive the insurance proceeds without the need for any person dealing with ACP to make further enquires.
6.3 If the Customer requests ACP to leave Goods/Equipment on any unattended site nominated by the Customer, this shall be at the Customer’s sole risk.
7. Personal Property Securities Act 1999 (“PPSA”)
7.1 Upon assenting to these terms and conditions in writing the Customer 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/Equipment previously supplied by ACP to the Customer (if any) and all Goods/Equipment that will be supplied in the future by ACP to the Customer.
(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 ACP may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register.
(b) Indemnity, and upon demand reimburse, ACP for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register or releasing any Goods/Equipment charged thereby.
(c) not register a financing change statement or a change demand without the prior written consent of ACP.
7.4 The Customer waives its rights as a debtor under sections 116,120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA.
7.5 Unless otherwise agreed to in writing by ACP, the Customer waives its right to receive a verification statement in accordance with section 148 of the PPSA.
7.6 The Customer shall unconditionally ratify any actions taken by ACP under clauses 7.1 to 7.5.
8.1 In consideration of ACP agreeing to supply the Goods/Equipment/Services, the Customer charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Customer either now or in the future, to secure the performance by the Customer of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
8.2 The Customer indemnifies ACP from and against all ACP’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising ACP’s rights under this clause.
8.3 The Customer irrevocably appoints ACP and each Director of ACP as the Customers true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 8 including, but not limited to, signing any document on the Customers behalf.
9.1 The Customer hereby disclaims any right to rescind or cancel any contract with ACP or to sue for damages or to claim restitution arising out of any inadvertent misrepresentation made to the Customer by ACP and the Customer acknowledges that the Goods/Equipment Hire/Services are bought relying solely upon the Customers skill and judgement.
10.1 If the Customer is acquiring Equipment Hire/Services for the purposes of a trade or business, the Customer acknowledges that the provisions of the Consumer Guarantees Act 1993 do not apply to the supply of Equipment Hire/Services by ACP to the Customer.
11. Default and Consequences of Default
11.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two percent (2%) per calendar month (and at ACP’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgement.
11.2 If the Customer owes ACP any money the Customer shall indemnify ACP from and against all costs and disbursements incurred by ACP in recovering the debt (including, but not limited to internal administration fees, legal costs on a solicitor and own client basis, ACP’s collection agency costs, and bank dishonour fees).
11.3 Without prejudice to any other remedies ACP may have, if at any time the Customer is in breach of any obligation (including those relating to payment) under these terms and conditions ACP may suspend or terminate the supply of Goods/Equipment Hire/Services to the Customer. ACP will not be liable to the Customer for any loss or damage the Customer suffers because ACP has exercised its rights under this clause.
11.4 Without prejudice to ACP’s other remedies at law ACP shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to ACP shall, whether due for payment, become immediately payable if:
(a) any money payable to ACP becomes overdue, or in ACP’s opinion the Customer will be unable to make a payment when it falls due;
(b) the Customer becomes insolvent, convenes a meeting with its creditors or proposes or enters an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
(c) a Receiver, Manager, Liquidator (professional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer.
12.1 ACP may cancel any contract to which these terms and conditions apply or cancel delivery of Goods/Equipment Hire/Services at any time before the Goods/Equipment Hire/Services are due to be delivered by giving written or verbal notice to the Customer. On giving such notice ACP shall repay to the Customer any money paid by the Customer for the Goods/Equipment Hire/Services. ACP shall not be liable for any loss or damage whatsoever arising from such cancellation.
12.2 In the event that the Customer cancels delivery of the Goods/Equipment Hire/Services the Customer shall be liable for any and all loss incurred (whether direct or indirect) by ACP as a direct result of the cancellation (including, but not limited to, any loss of profits).
13.1 The Customer authorises ACP or ACP’s agent to:
(a) access, collect, retain, and use any information about the Customer.
(i) (Including any overdue fines balance information held by the Ministry of Justice) for the purpose of assessing the Customer’s creditworthiness; or
(ii) for the purpose of marketing products and services to the Customer.
(b) disclose information about the Customer, whether collected by ACP from the Customer directly or obtained by ACP 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 Customer.
13.2 Where the Customer is an individual the authorities under clause 13.1 are authorities or consents for the purposes of the Privacy Act 2020.
13.3 The Customer shall have the right to request ACP for a copy of the information about the Customer retained by ACP and the right to request ACP to correct any incorrect information about the Customer held by ACP.
14.1 Where the customer has left any item with ACP for repair, exchange or for ACP to perform any other service in relation to the item and ACP has not received or been tendered the whole of any monies owing to it by the Customer, ACP shall have, until all monies owing to ACP 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.
14.2 The lien of ACP shall continue despite the commencement of proceedings, or judgement for any monies owing to ACP having been obtained against the Customer.
15. Equipment Hire
15.1 Equipment shall always remain the property of ACP and is returnable on demand by ACP. If Equipment is not returned to ACP in the condition in which it was delivered, ACP retains the right to charge the Customer the full cost of repairing the Equipment. If Equipment is not returned at all ACP shall have right to charge the Customer, the full cost of replacing the Equipment.
15.2 The Customer shall;
(a) keep the Equipment in their own possession and control and shall not assign the benefit of the Equipment nor be entitled to a lien over the Equipment.
(b) not alter or make any additions to the Equipment including, but without limitation altering, make any additions to, defacing or erasing any identifying mark, plate, or number on or in the Equipment or in any other matter interfere with the Equipment.
(c) keep the Equipment, complete with all parts and accessories, clean and in good order as delivered, and shall comply with any maintenance schedule as advised by ACP to the Customer.
15.3 The Customer accepts full responsibility for the safekeeping of the Equipment and the Customer agrees to insure, or self-insure, ACP’s interest in the Equipment and agrees to indemnify ACP against physical loss or damage including, but not limited to, the perils of accident, fire, theft and burglary and all other usual risks and will affect adequate Public Liability Insurance covering any loss, damage or injury to property or persons arising out of the use of the Equipment. Further the Customer will not use the Equipment of permit it to be used in such a manner as would permit the insurer to decline any claim.
16.1 The failure by ACP to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect ACP’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.
16.2 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 courts of New Zealand.
16.3 ACP shall be under no liability whatsoever to the Customer for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by ACP of these terms and conditions (alternatively ACP’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Goods/Equipment Hire/Service)
16.4 The Customer shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Customer by ACP nor to withhold payment of any invoice because part of that invoice is in dispute.
16.5 ACP may licence or subcontract all or any part of its rights and obligations without the Customer’s consent.
16.6 The Customer agrees that ACP may amend these terms and conditions at any time. If ACP makes a change to these terms and conditions, then that change will take effect from the date on which ACP notifies the Customer of such change. The Customer will be taken to have accepted such changes if the Customer makes a further request for ACP to provide Goods/Equipment Hire/Services to the Customer.
16.7 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lockout, industrial action, fire, flood, storm, or other event beyond the reasonable control of either party.
16.8 The Customer warrants that it has the power to enter into this agreement and has obtained all necessary authorisations to allow it to do so, it is not insolvent, and that this agreement creates binding and valid legal obligations on it.
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