Terms and Conditions

1. FOR EARTHMOVING, SITEWORKS AND LANDSCAPING SERVICES

 

The following Terms and Conditions are incorporated in all agreements between Carey Earthmoving Limited and you, our Customer, the person named in the Estimation, Quotation, Contractor Engagement or similar document, Invoice and/or users of our Website.

 

In the event of any inconsistency between these Terms and Conditions and any terms and conditions in our documentation, these Terms and Conditions will take precedence.

 

We may modify and update these Terms and Conditions at any time. In using our Website and/or Services and Materials, you agree to be bound by these Terms and Conditions as well as any and all general terms and conditions posted on our Website from time to time. If you do not accept these Terms and Conditions, you cannot use our website or any of our Services and Materials.

 

2. DEFINITIONS

 

"Carey Earthmoving" means Carey Earthmoving Limited, or any agents or employees thereof.

 

"Customer" means the party (person or entity) listed as the Customer on the quotation sheet provided by Carey Earthmoving, any person acting on behalf of and with the authority of the Customer, and/or any person contracting Services and Materials from Carey Earthmoving.

 

"Earthworks" includes excavation, transporting, unloading and compaction of earth which may mean grading, drilling, profiling, septic tank work, retaining walls, concreting, paving and other project works from time to time.

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"Electronic Funds Transfer" means any transfer of funds, other than a transaction originated by check, draft, or similar paper instrument, which is initiated through an electronic terminal, telephonic instrument or computer or magnetic tape so as to order, instruct, or authorise a financial institution to debit or credit an account. 

 

“Fee” means the price payable for the Materials and/or Services as invoiced to you by us.

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"Materials" means any materials and/or goods and/or products supplied by Carey Earthmoving.

 

"Services" means any service performed by Carey Earthmoving.

 

"Services and Materials" means all materials, goods, products, services and advice provided by Carey Earthmoving to the Customer and shall include without limitation all civil works and contracting services, earthmoving, excavation, landfilling services and the supply of all associated materials and all charges for time and attendances, hire charges, insurance charges, or any fee or charge associated with the supply of Services and/or Materials by Carey Earthmoving to the Customer.

 

"Price" shall mean the cost of the Services and Materials as agreed between Carey Earthmoving and the Customer and unless otherwise stated exclude Goods and Services Tax (GST) but includes all disbursements and/or charges Carey Earthmoving pay to others on the Customer's behalf, subject to clause 5 of this contract.

 

"Property" means the work site where the Services and Materials are performed and any access ways to and from the work site.

 

3. ACCEPTANCE

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Any instructions received by Carey Earthmoving from the Customer for the supply of Services and Materials shall constitute a binding contract and acceptance of the terms and conditions contained herein.

 

4. PRICE

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Where no price is stated in writing or agreed to orally, the Services and Materials shall be deemed to be supplied at the current rate as such Services and Materials are supplied by Carey Earthmoving in the ordinary course of business, at the time of the contract.

 

5. PAYMENT

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Payment of any fee for Services and Materials, including progress payments and payment of payment claims made in accordance with the Construction Contracts Act 2002 ("the payment claim"), shall be made in full on or before the 20th day following the date of the invoice or the payment claim ("the due date").

 

Interest may be charged on any amount owing after the due date at the rate of 15% per annum.

 

Any expenses, disbursements and legal costs incurred by Carey Earthmoving in the enforcement of any rights contained in these terms of trade shall be paid by the Customer, including any reasonable legal fees or debt collection agency fees.

 

The Contractor only accept payments under this Agreement from the Customer by Electronic Funds Transfer deposited directly into Carey Earthmoving's designated bank account. 

 

6. QUOTATION

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Where a quotation is given by Carey Earthmoving for Services and Materials:

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(a) Unless otherwise agreed the quotation shall be valid for thirty (30) days from the date of issue; and

(b) The quotation shall be exclusive of Goods and Services Tax (GST) unless specifically stated to the contrary.

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Any quotation provided by Carey Earthmoving is an estimate only. The price charged by Carey Earthmoving may be increased by the amount of any reasonable increases in the cost of supply of the Services and Materials that are beyond the control of Carey Earthmoving.

 

Reasonable increases in the cost of supply of the Services and Materials that are beyond the control of Carey Earthmoving include but are not limited to increases due to weather conditions, discovery of hazards including but not limited to cables, pipes or rocks, any new information provided by the Customer, and increases in the price of materials required by Carey Earthmoving to provide the Services and Materials.

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The Customer agrees to pay the sum invoiced by Carey Earthmoving irrespective of any variation from the quotation and in accordance with these terms of trade.

Where Services and Materials are required in addition to the quotation the Customer agrees to pay for the additional cost of such Services and Materials.

 

7. EQUIPMENT

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Any and all equipment brought onto the Property by Carey Earthmoving shall be at the sole use of Carey Earthmoving and, other than in an emergency, shall not be used or interfered with in any way whatsoever by the Customer without Carey Earthmoving's permission.

Nor shall the Customer, other than in an emergency, permit any third party to use or interfere with the equipment in any way whatsoever without Carey Earthmoving's permission.

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8. HAZARDS

 

The Customer shall notify Carey Earthmoving as to any hazards and/or potential hazards including (but not limited to) cables, and/or any dangerous chemicals. The Customer shall remove any hazards as reasonably requested by Carey Earthmoving, and at the customer's cost.

 

The Customer shall ensure there is no presence whatsoever of asbestos on site, and if any form of asbestos is found, the Customer shall, at its own cost, engage professionals nominated by Carey Earthmoving to remove the asbestos. Carey Earthmoving shall be entitled to immediately cease or suspend work until it is satisfied (in its sole and absolute discretion) that it is safe to continue work.

 

9. DAMAGE TO PROPERTY

 

Any damage to the Property and/or Carey Earthmoving's goods and/or materials, caused by any act and/or omission of the Customer, shall be remedied by the Customer, or if necessary, replaced in full by the Customer, in all situations at the Customer's sole cost and on an urgent basis.

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10. SUBCONTRACTING

 

The Customer authorises Carey Earthmoving to contract either as principal or agent for the provision of Services and Materials that are the matter of this contract.

 

Where Carey Earthmoving enters into a contract of the type referred to in clause 4 it shall be read with and form part of this agreement and the Customer agrees to pay any amounts due under that contract.

 

11. TITLE AND SECURITY (PERSONAL PROPERTY SECURITIES ACT 1999)

 

Title in any Materials supplied by Carey Earthmoving passes to the Customer only when the Customer has made payment in full for all Materials supplied by Carey Earthmoving to the Customer and of all other sums due to Carey Earthmoving by the Customer on any account whatsoever.

 

Until all sums due to Carey Earthmoving by the Customer have been paid in full, it is agreed that Carey Earthmoving has a security interest in all Materials supplied by Carey Earthmoving to the Customer.

 

The Customer gives Carey Earthmoving an irrevocable licence to enter all premises where it has reasonable grounds to believe the above materials be stored, to inspect, remove or repossess any goods supplied by Carey Earthmoving and not paid for in full by the Customer.

 

12. DISPUTES

 

Either party may take such legal action including the commencement of legal proceedings as deemed appropriate to resolve or determine the dispute.

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13. LIABILITY

 

The Consumer Guarantees Act 1993, the Fair Trading Act 1986 and other statutes may imply warranties or conditions or impose obligations upon Carey Earthmoving which cannot by law (or which can only to a limited extent by law) be excluded or modified. In respect of any such implied warranties, conditions or terms imposed on Carey Earthmoving, Carey Earthmoving's liability shall, where it is allowed, be excluded or if not able to be excluded only apply to the minimum extent required by the relevant statute.

 

Except as otherwise provided by clause 10 Carey Earthmoving shall not be liable for:

 

1. any loss or damage of any kind whatsoever, arising from the supply of Services and Materials by Carey Earthmoving to the Customer, including consequential loss whether suffered or incurred by the Customer or another person and whether in contract or tort (including negligence) or otherwise and irrespective of whether such loss or damage arises directly or indirectly from Services and Materials provided by Carey Earthmoving to the Customer; and

 

(b)   any loss or damage resulting from unmarked drains or utilities or for any loss, damage or costs arising from unforeseen circumstances; and

(c)   any variation in type of Services and Materials supplied.

 

The Customer shall indemnify Carey Earthmoving against all claims and loss of any kind whatsoever however caused or arising and without limiting the generality of the foregoing of this clause whether caused or arising as a result of the negligence of Carey Earthmoving or otherwise, brought by any person in connection with any matter, act, omission, or error by Carey Earthmoving, its agents or employees in connection with the Services and Materials.

 

If contrary to the disclaimer of liability contained in these terms and conditions of trade Carey

Earthmoving is deemed liable to the Customer, following and arising from the supply of Services and Materials by Carey Earthmoving to the Customer, then such liability is limited in its aggregate to $1,000.00.

 

 

14. HEALTH AND SAFETY STANDARDS

 

The Customer is obliged to ensure that all work sites comply with occupational health and safety statutory requirements regulations and standards and that there are always proper means of access to the work site.

 

The Customer must provide Carey Earthmoving with plans for the work site and notify Carey Earthmoving of any hazards or potential hazards before Carey Earthmoving commences work. This includes public utilities and any other obstructions.

The Customer must ensure at its own cost that fencing and barriers are in place to prevent access to the work site other than by Carey Earthmoving and its employees and contractors.

 

15. CONSUMER GUARANTEES ACT 1993

 

The guarantees contained in the Consumer Guarantees Act 1993 are excluded where the Customer acquires Services and Materials from Carey Earthmoving for the purposes of a business in terms of section 2 and 43 of that Act.

 

16. PERSONAL GUARANTEE OF COMPANY DIRECTORS OR TRUSTEES

 

If the Customer is a company or trust, the director(s) or trustee(s) signing this contract, in consideration for Carey Earthmoving agreeing to supply Services and Materials and grant credit to the Customer at their request, also sign this contract in their personal capacity and jointly and severally personally undertake as principal debtors to Carey Earthmoving the payment of any and all monies now or hereafter owed by the Customer to Carey Earthmoving and indemnify Carey Earthmoving against non-payment by the Customer. Any personal liability of a signatory hereto shall not exclude the customer in any way whatsoever from the liabilities and obligations contained in this contract. The signatories and Customer shall be jointly and severally liable under the terms and conditions of this contract and for payment of all sums due hereunder.

 

17. CANCELLATION

 

Carey Earthmoving shall, without any liability, and without any prejudice to any other right it has in law or equity, have the right by notice to suspend or cancel in whole or in part any contract for the supply of Services and Materials to the Customer if the Customer fails to pay any money owing after the due date or the Customer commits an act of bankruptcy as provided for in the Insolvency Act 2006.

 

Any cancellation or suspension of this agreement shall not affect Carey Earthmoving's claim for money due at the time of cancellation or suspension or for damages for any breach of any terms of this contract or the Customer's obligations to Carey Earthmoving under this contract.

 

18. MISCELLANEOUS

 

Carey Earthmoving shall not be liable for delay or failure to perform its obligations if the cause of the delay or failure is beyond its control.

 

Failure by Carey Earthmoving to enforce any of the terms and conditions contained in this contract shall not be deemed to be a waiver of any of the rights or obligations Carey Earthmoving has under this contract.

 

If any provision of this contract shall be invalid, void or illegal or unenforceable, the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.

 

Where the Customer has entered into a separate supply agreement containing additional terms and conditions with Carey Earthmoving and/or additional terms and conditions are included in any submission, letter, tender or schedules that are intended to form part of any contract ("additional terms and conditions"), these additional terms and conditions shall apply except to the extent that there is any inconsistency between these Terms and Conditions and the additional terms and conditions, in which case the additional terms and conditions shall prevail.

 

If the Customer defaults in payment of any sum due to Carey Earthmoving then the Customer agrees that such default gives rise to a legal or equitable estate or interest in the Customer's land which entitles Carey Earthmoving to enter a caveat against the Customer's land pursuant to the Land Transfer Act 1952 and its amendments or any legislation in substitution thereof.

 

The Customer agrees that Carey Earthmoving may change these terms and conditions of trade from time to time but only by notice to the Customer in writing, which may be by email. The Customer is not permitted to amend these terms and conditions of trade other than with the signed consent in writing from Carey Earthmoving.

 

This Agreement shall be governed exclusively by the laws and jurisdiction of New Zealand.