Terms of Trade

1. General

1.1 These Terms of Trade (Terms) govern the supply by Surveying Services Ltd, NZBN 9429032569674 (our, us or we) to you (referred to as the Client, you or your) of Services from time to time. By engaging us to provide the Services, you are deemed to have agreed that the Services are supplied subject to these Terms.

1.2 In the event of any inconsistency between these Terms and any other documentation forming part of the Contract, the provisions of these Terms shall prevail.

2. Price

2.1 Unless we have agreed in writing to be bound by a set price for the Services (provided however a set price shall still be subject to additional costs for reasonable delays, variations, and the items in subclauses 2.1(b) – 2.1(e)) (Set Price), you will pay to us our actual cost of completing the Services (Actual Cost) which will be calculated by totalling the following:

(a) the number of hours of service multiplied by the hourly rates for the workers involved on the date which the Service is undertaken or if the supply occurs over more than one day, the relevant hourly rates on the last day on which Services are rendered;

(b) any disbursements (including without limitation delivery costs) incurred by us on your behalf.

(c) our expenses incurred including but not limited to administration, termination and cancellation fees and reasonable mark-ups on disbursements;

(d) Interest under clause 4.1, enforcement costs under clause 17.2, your share of an Expert’s costs under clause 15.2, (where applicable) in accordance with the Terms; and

(e) any other amounts payable by you under the Contract.

2.2 The Set Price, Actual Cost and the items in subclauses 2.1(b) – 2.1(e) are plus GST and other taxes which are payable by you in New Zealand dollars.

2.3 In the event the Services are terminated in accordance with clause 12, all amounts payable by you under the Contract shall immediately fall due.

3. Payment

3.1 We require you to pay a deposit, being an advanced payment for the Services before we commence the Services.

3.2 Unless we have otherwise agreed in writing, payment for all or any part of the Services (and any associated expenses, disbursements and costs) shall be due within 7 days of the date of our invoice, or such earlier date in the event the provisions of clause 2.3 shall apply (Due Date).

4. Default

4.1 If payment is not made on the Due Date, then we may charge default interest at the rate of 2% per month. The interest will be calculated on a daily basis from the date payment was due until the date payment is received by us. Any failure or delay by us to charge interest on any unpaid account or to exercise any of its rights will not operate as a waiver of those rights. You will also be liable to pay all expenses and legal costs incurred by us as a result of your default in payment, including debt recovery costs or charges of a debt collection agency. We may apportion payments to outstanding accounts as we see fit.

4.2 Notwithstanding clause 4.1, if payment is outstanding for 7 days from the Due Date, we may suspend providing the Services on credit until the date of payment in full (subject always to clause 4.3). You must pay in cash for any Services supplied by us until payment is made in full (together with any accrued interest).

4.3 We may notify you at any time that we have ceased to provide the Services on credit. This cessation does not relieve you for amounts owing up to the date on which the contract is terminated.

5. Performance of Services

5.1 Upon your acceptance of the Proposal (which may or may not include the provision of a personal guarantee), your payment to us of all amounts under the Contract as and when they fall due, and any other matter or thing that we have notified to you as being necessary for the commencement of, or for the continuation of, the Services, we will:

(a) perform the Services with reasonable skill, care and diligence in a professional manner;
(b) endeavour to ensure that the Services are performed in accordance with any time frames agreed in writing with you;
(c) liaise with you during the course of performing the Services in accordance with your reasonable requirements.

5.2 You will give reasonable assistance to enable us to perform the Services by:

(a) giving clear instructions;
(b) promptly providing any information or content required from you for us to complete the Services;
(c) ensuring that the Services and products derived from the Services are fit for the purpose you intend to use them for and meet any appropriate statutory, regulatory, standards or practices.

5.3 If we have given you a time frame for completion of the Services, unless agreed in writing to the contrary such time frame is approximate only and is not deemed to be of the essence of the contract.

5.4 As soon as either party becomes aware of anything that will materially affect the scope or timing of the Services, that party must notify the other party in writing and where we consider a direction from you or any other circumstance is a variation, we will notify you accordingly.

5.5 Further to clause 5.4. if we suffer delay in the completion of the Services or incur additional cost arising from the activity of separate contractors or other third parties (including, but not limited to, government agencies) that is:

(a) not provided for in the Proposal;
(b) and/or is out of our control,

then the effect of that activity shall be deemed to be a variation of the Services.

6. Site Access

6.1 You will ensure that we have clear and free access to the Work Site as required to enable us to undertake the Services. We will not be liable for any loss or damage to the Work Site unless due to our negligence and then only to the extent set out in clause 8.4.

7. Health & Safety

7.1 We will operate under our own Health and Safety Plan. You must provide us with all relevant information regarding Work Site specific health and safety issues. In circumstances where potential health and safety hazards are not covered by our Health and Safety Plan, we reserve the right to revise any set price for the Services to cover any additional cost.

7.2 We do not and will not assume any duty imposed on you pursuant to the Health and Safety at Work Act 2015 in connection with these Terms.

7.3 If we become aware of any risk to the health and safety of our employees, contractors or agents while on the Work Site, we may require those employees, contractors or agents to cease providing the Services until that risk is addressed to our satisfaction and will not be liable for any loss or damage or liability of any kind whatsoever (including consequential loss or lost profit or business) whether suffered or incurred by you or another person and whether in contract, or tort (including in negligence), or otherwise and whether such loss or damage arises directly or indirectly from our rights under this clause 7.3.

7.4 You warrant to us that on an ongoing basis, you will comply with all of your obligations under the Health and Safety at Work Act 2015 as they pertain to the Work Site.

8. Liability

8.1 Except as set out in these Terms or as provided in any separate written agreement signed by us, any and all conditions, guarantees, warranties or representations which might otherwise be implied by law, trade, custom or otherwise are expressly excluded to the maximum extent permitted by law. In particular, the Consumer Guarantees Act 1993, the Fair Trading Act 1986, and other statutes may impose warranties, conditions or obligations upon us which cannot by law (or which can only to a limited extent by law) be excluded. We exclude all such imposed warranties, conditions or obligations to the extent permitted by law and exclude any warranty, condition or obligation imposed or implied under common law, equity or otherwise.

8.2 Where any of the Services are supplied by any thirdparty contractor engaged by us, we will not be liable for any loss or damage caused howsoever by that third party contractor in relation to the Services supplied.

8.3 Any defects resulting from the Services supplied must be notified to us in writing.

8.4 To the extent that we are liable to you for any loss suffered or liability incurred by you directly arising from our breach of these Terms, such liability is limited to the lesser of an amount equivalent to the actual loss suffered by you, and the actual amount paid by you to us for our fees, excluding GST, and excluding the items in subclauses 2.1(b) – 2.1(e).

8.5 Further to clause 8.4, if we are found liable for whatever reason and you and/or a third party engaged by you has contributed to the loss or damage, we will only be liable to the proportional extent of our contribution.

8.6 We may, at our sole discretion, re-perform any defective Services, or refund the amount of those Services, provided that clause 8.3 has been complied with and further provided that:

(a) you must supply the date and number of any invoice relating to the Services; and
(b) we must have a reasonable opportunity to inspect the issue resulting from Services complained of; and
(c) we must have no obligation to remedy any damage or defect caused by:
(i) any wilful act or negligence of yours or any other person other than us or our agents, employees or subcontractors;
(ii) faulty materials or workmanship other than the work or materials provided by us;
(iii) design faults, errors or discrepancies where we were not responsible for design;
(iv) changes to Council Rules and Regulations including interpretations thereof by Council Officers and their advisers or contractors; or
(v) anything that is not reasonably within our sole control.

8.7 Without limiting any defences available under the Limitation Act 2010, we will not be considered liable for any loss or damage resulting from any occurrence unless a claim is formally made by you within 6 years from completion of the Services.

8.8 You indemnify us in respect of any and all claims and or expenses, losses or damage suffered by us, arising out of any breach by you of your obligations under the Contract.

9. Intellectual Property

9.1 In respect of Intellectual Property used in or arising from the Services, all pre-existing Intellectual Property the subject of an Intellectual Property right resides with the owner (whether you or us).

9.2 In respect of any pre-existing Intellectual Property:

(a) of ours used in or provided as part of the Services, we grant you a perpetual, non-exclusive, worldwide, royalty free, non-transferrable license to use such pre-existing Intellectual Property only to the extent that it is necessary for the sole purpose of enabling you to obtain the benefit of the Services; and
(b) of yours provided to us for the purposes of the Services, you grant us a perpetual, non-exclusive, worldwide, royalty free, non-transferrable license to use such preexisting Intellectual Property only to the extent necessary to enable us to perform the Services.

9.3 Unless we agree otherwise with you in writing, you agree:

(a) that the final form of any work created in connection with or arising from the Services may be showcased on our social media and website portfolios once the project has been completed; and
(b) you must not attribute the Services to anyone other than us or remove any of our trade marks, logos or similar from any documents or work product that we provide you.

10. Confidentiality

10.1 You undertake and agree to treat as secret and confidential, and not at any time for any reason, other than for the purpose of the Terms or as required by law, to disclose or permit to be disclosed to any person, or otherwise make use of, or permit to be made use of, any information relating to our technical processes, trademarks, business affairs or finances or of any suppliers, agents, distributors, licensees or customers of ours where such knowledge or details were received during the term of these Terms.

11. Credit Information

11.1 You consent to us and any financier or credit-rating agency making enquiries of and obtaining any information about your financial standing and creditworthiness.

12. Default & Termination

12.1 If we have reasonable grounds to believe:

(a) you are in breach of your obligations under the Contract and or an Expert’s determination in accordance with clause 15.2; and/or
(b) you have committed an act of bankruptcy or are placed into liquidation; and/or
(c) a receiver or manager has been appointed in respect or any part or the whole of your assets,

any of which is deemed to be a “Default”, we may:

(d) withhold delivery of the Services; and/or
(e) forfeit all monies paid for or towards the Services prior to the date of the Default: and/or
(f) treat any order for the Services to have been cancelled; and/or
(g) immediately terminate the Services by notice in writing to you; and/or
(h) charge a cancellation fee for our reasonable costs.

12.2 Termination the Services shall be without prejudice to, and not deemed a waiver of, any claims which we may have in respect of your Default prior to such termination, or of any other term of the Contract which by its nature is intended to survive.

13. Notices

13.1 Any notice may be given in person, posted or sent by fax or email (or where you are a company, to any of its directors, agents or employees at the Client’s address).

14. Privacy of Information & Authorisations

14.1 We will collect personal information about you for the purpose of providing the Services and for the purposes set out in our Privacy Policy, located at www.surveyingservices.co.nz/privacy. You authorise us to:

(a) collect, retain and use information about you from any person for the purpose of assisting its creditworthiness;
(b) disclose information about you:
(i) to any person who guarantees, or who provides insurance, or who provides any credit support, in relation to your obligations to us;
(ii) to such persons as may be necessary or desirable to enable us to exercise any power or enforce or attempt to enforce any of its rights, remedies and powers under these Terms.

14.2 You are entitled to access your information held by us, and to request that corrections be made. We are to make such corrections, or to notify you in accordance with section 63 of the Privacy Act 2020 of the reasons we refuse to make the corrections.

15. Dispute Resolution

15.1 Where any genuine and reasonable dispute (not being de minimis in nature) arises in connection with the Services the complaining party must promptly give full written particulars of the dispute to the other party (“Dispute”). The Parties shall negotiate in good faith to resolve the Dispute.

15.2 Where a Dispute remains unresolved within 20 working days of written particulars being given, either party may refer the Dispute to the New Zealand Institute of Surveyors Incorporated (Survey and Spatial New Zealand) or its successor, for the Society to make an appointment or recommendation of a registered full member, having no less than 10 years membership, (“Expert”), to determine the Dispute. Both parties shall be bound by the Expert’s determination of the Dispute and of allocation of the Expert’s costs for the determination, which shall be a final determination of the Dispute.

15.3 This clause 15 does not apply to an application by either party for urgent interlocutory relief.

15.4 We have a right to withhold delivery of the Services, pending resolution of the Dispute and payment of all monies in accordance with the Expert’s determination.

Variations to Services

16.1 Should any additional Services be required by you (including the broadening of the scope of the Services) all such requests must be made in writing by you and be approved in writing by us, save for a deemed variation under clause 5.5.

16.2 We may approve a variation to the Services in our sole discretion.

16.3 In the event that we request a variation to the Services or you request a variation under clause 16.1, we will give you a written variation document detailing the amended Services, the amended Set Price (if applicable), the estimated time to undertake the variation, the likely delay (if any). We are not obliged to undertake the variation until you have first provided to us your written acceptance of the variation of the Services.

16.4 For the avoidance of doubt, unless we have expressly agreed in writing otherwise, you shall pay to us the Actual Cost for any variation to the Services.

17. General

17.1 We may revise these Terms from time to time and make changes. The updated Terms are effective as at the date of publication on our website and shall apply to all Proposals accepted after that date.

17.2 You must pay us costs (including legal costs, as between solicitor and client) of and incidental to the enforcement or attempted enforcements of our rights, remedies and powers under these Terms.

17.3 If any of these Terms is held to be invalid, void, unenforceable or illegal for any reason, such provision must be deemed to be severed from these Terms and the remaining provisions must continue in force.

17.4 A failure or delay in enforcing a right pursuant to these Terms is not a waiver of that right. Any waiver must be in writing and signed by the party granting the waiver.

17.5 You must not assign or subcontract any of your rights, powers or obligations under these Terms without our prior written consent.

17.6 If we have given a time frame for completion of Services, such time frame is approximate only and is not deemed to be of the essence.

17.7 We are not liable to you for any defect, loss, damage or delay caused by a Force Majeure Event.

17.8 These Terms will be governed by the laws of New Zealand and are subject to the non-exclusive jurisdiction of New Zealand courts.

17.9 These Terms apply in preference to any terms supplied by you. Except as may be set out in a separate written and signed agreement between you and us, the Contract represents the entire agreement between us in relation to our provision to you of the Services.

18. Interpretation

Definitions

18.1 In these Terms of Trade, unless the context indicates otherwise: Authorisation and Acceptance of Terms of Trade by Client means the form with this name which is signed by you when you accept the Proposal.

Client means the person (which for these purposes includes a company, trust or other legal entity at law) who has accepted the Proposal and engaged us to carry out the Services, and includes the Client’s employee, agent, or other authorized person who has accepted the Proposal on behalf of the Client.

Contract means the Terms, the Proposal, the Authorisation and Acceptance of the Terms of Trade by Client, the Personal Guarantee and Authority to credit check (if any), the Subdivision Scoping Report, and any written variation agreed between us and you in accordance with the Terms.

Force Majeure Event means an act, event or cause reasonably beyond our control including:

(a) an action or inaction of Government, including expropriation, restraint, prohibition, intervention, requisition, requirement, direction or embargo by legislation, regulation, decree or other legally enforceable order; or
(b) an act of God, fire, earthquake, storm, flood, landslide, explosion, power failure, sabotage, cyber- attack, national emergency, epidemic, quarantine, radiation or radioactive contamination, or act or war but does not include financial management difficulties or any risk or event, including those listed above, the effects of which could have been prevented by the taking or reasonable care by us,

to the extent that the act, event or cause directly or indirectly results in us being prevented from or delayed in performing one or more of its material obligations under these Terms of Trade.

GST means goods and services tax chargeable or for which a person may be liable under the Goods and Services Tax Act 1985. Intellectual Property means all intellectual property rights (including, without limitation, copyright, patent and design rights, drawings, documents, data, ideas, artistic styles, methods of working, techniques, ideas, skills and know-how, procedures and calculations).

Parties means us and the Client and "party" means either one of us or the Client. Proposal means the initial proposal we provide to you setting out the details of the Services we expect to provide which may include the scope of the Services, our set price or hourly rates, as well as estimated timing.

Services means all services we agree to provide, or arrange for a third-party sub-contractor to provide, to you from time to time, including (but not limited to) surveying and consulting services. Working day means any day other than a Saturday or Sunday or Public Holiday observed in New Zealand.

Work Site means any location in which the Services are to be performed.

18.2 In these Terms of Trade, unless the context indicates otherwise:

(a) terms given a defined meaning have that meaning where the context permits.
(b) words referring to the singular include the plural and vice versa.
(c) any reference to any of the Parties includes that party's executors, administrators or permitted assigns.
(d) everything expressed or implied in these Terms of Trade which involves more than person binds and benefits those people jointly and severally.
(e) clause headings are for reference purposes only.
(f) a reference to a person includes any other entity or association recognised by law.
(g) all references to dollars and $ are references to New Zealand dollars unless otherwise stated.
(h) all periods of time or notice exclude the days on which they are given and include the days on which they expire.
(i) except as expressly provided in these Terms, time is of the essence.

Contact Us

0800 BOUNDARY (0800 268 632)
info@surveyingservices.co.nz

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