Our Terms of Trade

Particulars

A. This agreement is made on: …………………………
B. The price payable is: …………………………
C. The parties are: …………………………
i. Contractor: ………………………… eLtd trading as “Betta Asbestos Consultancy” (For the avoidance of doubt, the client is engaging ……………………… Ltd, NOT the individual inspector undertaking the inspection or the Contractor’s Licensor, Betta Asbestos Consultancy Ltd).
ii. Client: ………………… being the person(s) who has/have accepted these terms and conditions.
D. The address of the property or properties to be inspected are: …………………………
(herein referred to as the “Property”)
E. The building or buildings and/or units to be inspected at the Property (herein referred to as “the Building”) are specified in the Report.
The Contractor and the Client agree that the Contractor will supply the Works subject to the following terms and conditions: …………………………

1. Definitions

1.1 ”ACM” means asbestos containing material, which is any material or thing that, as part of its composition, contains asbestos, including dust or debris.

1.2 ’Contractor’ shall mean the Contractor named in the above Particulars at clause C i as a party to these terms and conditions, its successors and assigns.

1.3  ’Client’ shall mean the person(s) and/or legal entity and/or entities named or otherwise described in the above Particulars at clause C ii above as a party to these terms and conditions.

1.4 ’Works’ shall mean testing for ACM and the supply of an asbestos survey Report and/or management Report and plan in relation to the Building at the Property as outlined in the Scope of Inspection and Scope of Works at schedule one or as otherwise mutually agreed in writing between the Contractor and the Client.

1.5 “Fee” shall mean, subject to clause 3, the price payable for the Works specified in the above Particulars at clause B plus GST, if any.

1.6 “Scope of Inspection” shall mean the Scope of Inspection at schedule one.

1.7 “Scope of Works” shall mean the Scope of Works at schedule one.

1.8 “Report” shall mean any written Report and/or plan supplied by the Contractor to the Client as part of the Works including an asbestos survey, management Report and plan.

2. Interpretation

2.1 Singular words include the plural and vice versa and words importing one gender include the other gender.

2.2 References to clauses and schedules are to clauses in, and schedules to, this agreement (unless stated otherwise). Each schedule forms part of this agreement.

3. Price & Payment

3.1 Unless otherwise agreed in writing, the Client shall pay the Fee prior to the release of the Report or before the date that the Contractor commences the Works, whichever occurs first.

3.2 The number of actual samples onsite will vary from site to site, and will only be known on the completion of the Property visit. Samples are charged in addition to the Fee. The Contractor will advise the Client of the cost or an estimate of the cost of samples (on a per sample basis) before the Works commence.

3.3 The Contractor reserves the right to change the Fee in the event of any variation from the plan of scheduled Works or specifications including, but not limited to, any revisit in terms of clause 12.3, or any variation as a result of additional work required due to hidden or unidentifiable difficulties beyond the reasonable control of the Contractor. The Contractor will advise the Client of any change to the Fee in writing.

4. Time of Supply

4.1 The Works shall be supplied at approximately the date(s) and time(s) agreed by the Contractor and the Client.  However, while the Contractor will make a reasonable effort to supply the Works at the date(s) and time(s) agreed, the Contractor reserves the right to vary the date(s) and time(s) that the Works are supplied at its absolute discretion.

5. Consumer Guarantees Act

5.1 These terms and conditions are subject to the Consumer Guarantees Act 1993 (“the Act”). To the extent that these terms and conditions apply to a “Consumer” as defined by the Act, and are inconsistent with Act, the provisions of the Act shall prevail.

5.2 If the Client is acquiring or otherwise being supplied with Works for the purpose(s) of a trade or business, the Client acknowledges that the provisions of the Act do not apply to the supply of those Works by the Contractor to the Client.

6. Intellectual Property and Confidentiality

6.1 The Works, including without limitation, the Report, is confidential and has been prepared solely for the Client and shall not be relied on by any third parties. The Contractor accepts no responsibility for anything done by any third party in reliance, whether wholly or in part, on any of the Works including, without limitation, the contents of the Report.

6.2 The Contractor retains copyright in any written designs, drawings, specifications, processes, Reports and any other documents created as part of, or for the purpose of performing, the Works.  The Report, in whole or in part, may not be copied, reproduced or translated in any medium by the Client and shall not be supplied by the Client to any third parties other than the Client’s professional advisers. For the avoidance of doubt, the Contractor may reproduce and sell to a third party a copy of the Report provided that all personal information of the Client shall be removed from such copy.

7. Default

7.1 Interest on any unpaid Fee, or part thereof, shall accrue daily from the date when payment of the Fee becomes due, until the date of payment, at a rate of two and one half percent (2.5%) per calendar month, calculated daily, after as well as before any judgment.

7.2 If the Client defaults in payment of any Fee, or part thereof, when due, the Client shall indemnify the Contractor from and against all costs and disbursements incurred by the Contractor in pursuing the debt including, without limitation, legal costs on a solicitor and client basis and any debt collection agency costs.

7.3 Without prejudice to any other remedies the Contractor may have, if at any time the Client is in breach of any obligation (including the obligation to pay the Fee), the Contractor may, at its election, suspend or terminate the supply of Works to the Client and any of its other obligations under the terms and conditions.  For the avoidance of doubt, the Contractor will not be liable to the Client for any loss or damage the Client suffers because the Contractor has exercised its rights under this clause. 

8. Cancellation

8.1 The Contractor may, at will, cancel any contract to which these terms and conditions apply at any time before the Works are supplied by giving written notice to the Client.  On giving such notice under this clause, the Contractor shall repay to the Client any sums paid in respect of the Fee.  The Contractor shall not be liable for any loss or damage whatsoever arising from such cancellation.

8.2 In the event that the Client cancels any contract to which these terms and conditions apply, the Client shall be liable for a cancellation fee equal to the full Fee, unless twenty four hours written notice of cancellation is given.

9. Privacy Act 1993

9.1 The Client authorises the Contractor to collect, retain, use and disclose any personal information about the Client for the following purposes (in addition to any purposes otherwise authorised by law):-

9.1.1 Enabling the Contractor to perform its obligations pursuant to any contract (including these terms and conditions) with the Client;

9.1.2 Administering, whether directly or indirectly, any contract (including without limitation, these terms and conditions) with the Client and enforcing the Contractor’s rights thereunder;

9.1.3 Enabling the Contractor to communicate with the Client for any purpose.

9.2 The Client, if an individual, has a right of access to the Client’s personal information held by the Contractor. The Client may request correction of that information and may require that the request be stored with that information. The Contractor may charge reasonable costs in providing access to that information.

10. Inspectors have no personal interest

10.1 The Contractor warrants that its inspectors have no interest, present or contemplated, in the subject Building at the Property.

11. Works

11.1 The Client acknowledges and agrees that:

11.1.1 The Works are subject to these terms and conditions including all limitations and disclaimers contained within the Scope of Inspection and the Scope of Works.

11.1.2 The areas tested by the Contractor at the Building may not be representative of the presence or absence of ACM throughout the entire subject Building or other areas of the Building where testing has not been conducted or is not possible to conduct.

11.1.3 The Report is not a guarantee or warranty of the presence or absence of ACM in the Building, its structures, systems or component parts.

11.1.4 The Report is subject to these terms and conditions including the limitations stated within the Report and relates only to the identification and management of ACM used in the construction of the Building based only on a an overall visual and assessment of the Building.

11.1.5 The Report only applies to the areas included in the inspection as outlined in the Scope of Works. The Report does not apply to the areas which are not included in the inspection. Concealed ACM’s within the fabric of the building will not be reported on.

11.1.6 For the avoidance of doubt the Report is not a building report, building warrant of fitness report, code of compliance, certificate or otherwise. The Report does not include investigations into land contamination associated with asbestos or any other contaminant at the Building and the Property. All matters other than those identified at clause 11.1.4, and all matters not specifically identified in the Report as having been inspected, are excluded from the Report absolutely.

11.1.7 The Report does not constitute any express or implied warranty of merchantability or fitness for use regarding the condition of the Building and the Property and it should not be relied upon as such.

11.2 For multi-unit properties, the Contractor will conduct testing at the specified unit only. For the avoidance of doubt, for multi-unit properties the Report will not include comment, advice, and/or other statements in relation to common areas and/or accessory units.

12. Reasonable Access

12.1 The Client will ensure that the Contractor is legally entitled to have reasonable access to the Building including, without limitation, the roof cavity and foundation spaces.

12.2 Reasonable access is access that is safe, unobstructed and which has a minimum clearance of a 450 x 400m opening access door that can be safely accessed from a 3.6m ladder and a minimum crawl space of 610 x 610mm in the ceiling space and a 500 x 400mm opening access door and a minimum crawl space of 500mm vertical clearance from the sub floor area. Roofs can be safely accessed from a 3.6 m ladder (or if the minimum clearance is not available, the area can be subject to a visual inspection only subject to reasonable visibility from the ground).

12.3 Where the Contractor is required to re-visit a Building because access was not gained at the agreed time of inspection, a further charge based on an hourly rate of $138 per hour, will be added to the Fee.

13. Limitation of Liability

13.1 For the purpose of clauses 13.2 and 13.3 the Contractor includes and extends to the Contractor, the Contractor’s directors, the Contractor’s employees, the Contractor’s representatives, the Contractor’s contractors, the Contractor’s licensor (Betta Asbestos Consultancy Limited), the Contractor’s licensor’s directors, and/or the Contractor’s agents.

13.2 Notwithstanding anything in these terms and conditions or at law or in equity to the contrary but subject to the Contractor’s obligations under the Consumer Guarantees Act (if applicable):

13.2.1 The Contractor will not be liable for any direct, indirect or consequential loss suffered by the Client arising howsoever from:

(i) Any breach of these terms and conditions by the Contractor;

(ii) The Works including, without limitation, any inspection undertaken and Report published and supplied by the Contractor to the Client;

(iii) The use of the Works;

(iv) Any failure of the Works to meet reasonable industry standards for any reason whatsoever (including, without limitation, negligence).

13.2.2 The Contractor’s liability in relation to these terms and conditions and all related matters (whether arising under contract, tort (including negligence) equity or otherwise) will be limited to, at the Contractor’s election, to the Price or remedying any defect in the Works caused by the Contractor’s breach of obligation; and

13.2.3 For the avoidance of doubt the Works and any related Report have been carried out solely for the Client, and the Contractor will not be liable for any direct indirect or consequential loss suffered by a third party absolutely, including any loss suffered arising from a third party’s reliance on any of the Works or the contents of the Report.

13.2.4 The Client indemnifies the Contractor against all and any claim(s) by any third party for losses, including legal costs on a solicitor and client basis, (whether arising under tort (including negligence) equity or otherwise) arising from:

(i) Any act of, or omission by, the Contractor in its performance of these terms and conditions; and/or

(ii) Any act of, or omission by, the Client in its performance of these terms and condition.

13.3 Without limiting clauses 13.1 and 13.2, the Client acknowledges that because the following matters are outside the scope of the Works, and for the avoidance of doubt:

13.3.1 The Contractor shall not be liable for any direct, indirect or consequential loss suffered by the Client arising howsoever from:

(i) The ingress of water into a building or structure and any physical loss or damage to the building or structure arising directly or indirectly, in whole or in part, from the ingress of water;

(ii) Rot or other gradual deterioration of a building or structure arising directly or indirectly, in whole or in part, from the ingress of water;

(iii) Fungus, mould, mildew, yeast, rot or decay, gradual deterioration, micro-organisms, bacteria, protozoa or any similar or like forms in any building structure or any spore or toxin produced;

(iv) Any costs or expenses arising out of the abating, testing for, monitoring, cleaning up, removing, containing, treating, detoxifying, neutralising, remediating or disposal of, or in any way responding to or assessing the effects of fungus, mould, mildew, yeast, rot or decay, gradual deterioration, micro-organisms, bacteria, protozoa or any similar or like forms, in any building or structure; and/or

(v) The failure of any building to meet or conform to the requirements of the Building Act and the Building Code in relation to external water, moisture, durability, liquefaction, ground movement or erosion.

14. General

14.1 Any provision of these terms and conditions that is binding on more than one party will bind such parties jointly and severally.

14.2 The failure of or delay by the Contractor in requiring performance of any obligation of the Client pursuant to these terms and conditions is not a waiver of the Contractor’s right:

14.2.1 to claim damages and/or an indemnity for breach of that obligation; and

14.2.2 to require performance of that or any other obligation under these terms and conditions at any time, unless notice to that effect is given in writing signed by the party entitled to the benefit of that provision or right.  Any waiver given in accordance with this clause is effective only to the extent expressly set out in such notice.

14.3 These terms and conditions record the entire arrangement between the parties relating to the matters dealt with in the terms and conditions and supersedes all previous arrangements, whether written, oral, or both, relating to such matters.

14.4 If any provision of these terms and conditions is or becomes invalid or unenforceable, that provision will be deemed deleted from the terms and conditions and such invalidity or unenforceability will not affect the other provisions of the terms and conditions, all of which will remain in full force and effect to the extent permitted by law, subject to any modifications made necessary by the deletion of the invalid or unenforceable provisions.

14.5 No variation or amendment to these terms and conditions is effective unless it is in writing and signed by all the parties.

14.6 The Client may not transfer or assign any of the Client’s liabilities or rights under the terms and conditions to any other person without the prior written of the Contractor. The Contractor may transfer or assign any of its liabilities or rights under the terms and conditions to any other person.

14.7 The terms and conditions will be binding against and for the benefit of each party, its permitted successors and its permitted assigns.  Except as expressly provided for in these terms and conditions, a person who is not a party to these terms and conditions will have no rights or remedies under the terms and conditions, including under the Contract and Commercial Law Act 2017, to enforce any of its terms.

14.8 The Client acknowledges that the Client has entered into these terms and conditions relying on the Client’s own judgement and that the Client has not entered into the terms and conditions relying upon any representation (express or implied) made by the Contractor.

14.9 The Client warrants that the Client is legally entitled to enter into the terms and conditions.

14.10 These terms and conditions are governed by the laws of New Zealand and the parties submit to the exclusive jurisdiction of the New Zealand courts in respect of all matters relating to these terms and conditions and the agreement they record.

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