EVOLUTION SCAFFOLDING LIMITED – TERMS & CONDITIONS OF TRADE

The following general terms together with any Quote or Service Schedule notified to the Customer (Terms) are the terms on which the Customer agrees Evolution Scaffolding Limited (Evolution) will supply or hire Equipment and/or Services.

 

1. INTERPRETATION
1.1 In these Terms the following terms have the following meaning specified:
“Customer” means any person or entity named as the Customer in the Quote or Service Schedule and includes any person acting on behalf of or with the authority of the Customer.
“Call Outs” means any site inspections, or scaffolding inspections (including post storm scaffolding inspections) required by the Customer on an as required basis.
“Equipment” means all equipment and equipment supplied (whether by sale or hire) by Evolution to a Customer from time to time including goods described on invoices, quotations, work authorisations or any other document issued by Evolution to the Customer.
“Quote or Services Schedule” means a quote, schedule or other document, containing price, service information and/or additional terms which is stated to be subject to these general terms and conditions.
“Service” means all services supplied by Evolution to the Customer including erection, alterations, dismantling, advice and recommendations.
“Price” means the cost of the supply or hire of Equipment or Services determined by Evolution.
“Loss” means any liability, damage, costs or expense, including, without limitation, loss of profits or any consequential, economic, indirect or special loss, damage or injury of any kind whatsoever including legal costs on a solicitor and own client basis.

 

2. ACCEPTANCE
2.1 The directors (in the case of a company), the partners (in the case of a partnership or limited partnership), the trustees (in the case of a trust) or the individuals (in the case of sole traders or private individuals), are personally liable for all debts owing to Evolution (the “Guarantors”), and by signing the Quote, Service Schedule or otherwise agreeing to the provision of Equipment or Services, the Guarantors provide a personal guarantee of all money owing to Evolution under these Terms.
2.2 If the Customer and/or Guarantors comprises more than one person, each person is jointly and severally liable for any amounts owing to Evolution under these Terms.
2.3 Requests received by Evolution from the Customer for the supply of Equipment and/or Services, or the Customer’s acceptance or receipt of delivery of the Equipment and/or Services, shall constitute acceptance of these Terms. No order from the Customer will be accepted other than on these Terms, and any terms proffered by the Customer (including within a purchase order) are hereby excluded unless expressly agreed to in writing by a director of Evolution.

 

3. PRICING AND PAYMENT
3.1 At Evolution’s sole discretion the Price shall be either:
(a) Evolution’s quoted price (subject to clause 3.2) as set out in the Quote or Services Schedule. Any quoted price provided by Evolution is valid for thirty days: or
(b) as indicated on any invoice provided by Evolution to the Customer in respect of the Equipment and/or Services supplied.
3.2 Evolution may increase the Price if a quotation needs to be varied to take account of any variations in design or quantity or the information provided by the Customer or any third party for the purposes of the quotation is in anyway incorrect or inaccurate.
3.3 Where the Customer supplies or arranges the supply of any equipment to Evolution, Evolution may increase the Price to take account of any delays in the supply of such equipment, any faults requiring rectification of such equipment, or any steps required to enable the equipment to be safely used.
3.4 If, for any reason, Evolution is delayed in supplying the Equipment or Services, other than through the fault of Evolution, Evolution may increase the Price to recover any cost to Evolution caused or contributed to by such delay.
3.5 Where any Call Outs, engineering, traffic management, or other reports are required, these costs are not included in the Quote for Equipment or Services and will be payable by the Customer in addition to any quotation.
3.6 The weekly rental charges for the Equipment shall commence from the date that the Equipment is delivered or made available to the Customer, and continue until the date which is three working days following receipt of the Customer’s notice to dismantle and remove the Equipment, or one week following delivery, whichever is the later (the “Hire Period”). The Hire Period will be extended for any period where the Customer continues to use the Equipment. Unless otherwise agreed in writing no allowance shall be made for any period of time during which the Equipment is not in use, including public holidays. A minimum charge of one weeks’ hire applies to all Customers.
3.7 Where there are any variations: (a) requested by the Customer or its employees or authorised contractors; (b) from the plan of scheduled Services; (c) from the specifications/plans provided for the Quote; or (d) as a result of unknown or unforeseen impediments or difficulties discovered following commencement of the Services (including poor weather, restrictions accessing the site or delays in the commencement or continuity of the Services caused by any act or omission of the Customer or its contractors/suppliers), which results in an increase in costs incurred by Evolution, these variations will be charge for on a time and materials basis and will be payable in full at the time of completion (unless otherwise agreed).
3.8 Evolution may specify a deposit to be paid before it is obligated to perform any obligations.
3.9 The Customer agrees to pay the first invoice which will be issued on the Equipment or Services being made available to the Customer for use. Such invoice will include all costs associated with cartage, erection, relevant rental, and dismantling of the Equipment or conclusion of the Services.
3.10 Time for payment for any, Equipment or Services shall be of the essence and will be stated on the invoice, Quote or Services Schedule, work authorisation or other document issued by Evolution. If no time is stated then payment is due before the twentieth of the month following the date of the invoice.
3.11 Interest on any overdue amounts from the Customer will be charged at a rate of 24% per annum (calculated on a daily basis) from the date payment was due to the date Evolution receives payment in full.
3.12 GST and other taxes and duties that may be applicable shall be added to the Price.
3.13 The Customer may not withhold any payment for set-off or any other reason whatsoever.
3.14 Evolution may, in its discretion, allocate any payment received from the Customer towards any invoice that Evolution determines and may do so at the time of receipt or at any time afterwards. On any default by the Customer, Evolutions may re-allocate any payments previously received and allocated. In the absence of any payment allocation by Evolution, payment will be deemed to be allocated in such a manner as preserves the maximum value of Evolution’s Purchase Money Security Interest (as defined in the PPSA) in the Equipment.

 

4. CANCELLATION & TERMINATION
4.1 Evolution may cancel any agreement with the Customer or cancel the supply of Goods or Services at any time by giving notice to the Customer without incurring any liability of any nature whatsoever to the Customer. In the event that:
(a) the Customer fails to pay any amount owing on the due date or is in breach of any other Terms or any other contract between the Customer and Evolution, and such default continues for 5 days following notice of the breach from Evolution; or
(b) the Customer has an execution levied against it, becomes bankrupt or insolvent, or commits any act of bankruptcy or enters into or attempts to enter into any compromise or arrangement with its creditors (voluntary, informal or otherwise) or in the case of a company, does any act which would render it liable to be wound up or have a receiver or statutory manager appointed over its property or if it has a winding up order made against it or passes or attempts to pass a resolution for the winding up or is a party to the appointment of or have a manager or receiver appointed over the whole or any part of its property or undertaking; or
(c) Evolution believes the Equipment to be at risk for any reason whatsoever, including but not limited to, the manner in which it is used, adverse weather or work conditions, or that the Customer is unable to, or might be unable to pay any money payable to Evolution; or
(d) The Equipment is damaged lost, stolen or destroyed; then the total Price payable by the Customer will be immediately due and payable and Evolution may:
(i) enforce payment of the balance of the total sum due and payable together with any penalties and interest payable; and/or
(ii) refuse to deliver any further Equipment or Services to the Customer (under these Terms or under any other agreement) until default on the part of the Customer is remedied; and/or
(iii) retake possession of any Equipment currently provided to the Customer. The Customer irrevocably authorises Evolution its agents and servants to search for and remove the Equipment and for that purpose to enter onto any site or into any premises where the Equipment may be found using such force as is necessary. The Customer will indemnify Evolution against any costs and liabilities that may arise as a result of the entry by Evolution into any premises or the seizure by Evolution of any Equipment under this clause including (without limitation) any liability, action or claim brought against Evolution by any third party; and/ or
(iv) terminate this Agreement with immediate effect.
4.2 Any rights exercised by Evolution pursuant to this clause do not extinguish the Customer’s liabilities under these Terms or prejudice any other right or remedy Evolution has at law or equity.
4.3 The Customer will pay the costs and expenses including the legal fees incurred by Evolution in exercising any of its rights or remedies or enforcing any of the terms, conditions or provisions of these Terms.
4.4 If the Customer cancels the supply of Equipment or Services within [7] days from the proposed delivery date or after delivery, the Customer shall be liable to Evolution for the full Price agreed between Evolution and the Customer for the supply of such Equipment or Services.
4.5 Evolution is not liable for any Loss of the Customer or any third party arising from any cancellation or termination by Evolution of any agreement with the Customer.

 

5. DELIVERY OF GOODS
5.1 At Evolution’s sole discretion, delivery of the Equipment takes place when:
(a) the Customer takes possession of the Equipment at Evolution’s address; or
(b) the Customer takes possession of the Equipment at the Customer’s nominated site (if the Equipment is delivered by Evolution or Evolution’s nominated carrier).
5.2 If the Customer is unable to take delivery of the Equipment when arranged, Evolution may charge the Customer the costs of redelivery.
5.3 Delivery of the Equipment to a third party nominated by the Customer is deemed to be delivery to the Customer for the purposes of these Terms.
5.4 To the maximum extent permitted by law, Evolution is not liable for any Loss arising from a failure by Evolution to deliver the Equipment or Services on time. Delivery times given by Evolution are estimates only.

 

6. RISK
6.1 Risk in the Equipment passes to the Customer on delivery. The Equipment is at the Customer’s risk until such time Evolution has
retaken possession, irrespective of whether the Equipment are on hire or off hire.
6.2 The Customer accepts full responsibility for the safekeeping and insurance of the Equipment and indemnifies Evolution against all Loss, theft or damage to the Equipment howsoever caused, whether or not such Loss, theft or damage is attributable to any negligence, failure or omission of the Customer or any third party.
6.3 The Customer will insure the Equipment against physical Loss including, accident, fire, theft, burglary and all other usual risks. The Customer will record Evolution’s interest as owner on the insurance policy and the Customer will effect and maintain Public Liability Insurance covering all loss to property. The Customer will not use the Equipment, nor permit them to be used, in such a manner as would permit an insurer to decline any claim.

 

7. TITLE
7.1 The Equipment is and will at all times remain the sole and exclusive property of Evolution. The Customer shall havwe no right, title or interest in the Equipment except as expressly set out in these Terms. The Customer covenants and agrees not to assign, charge, encumber, mortgage, pledge, sell, sub-let or hire out or otherwise part with possession or control of the /Equipment or any part thereof or attempt to do so at any time.
7.2 The relationship of the Customer to Evolution shall be as fiduciary in respect of the Equipment which shall be held by the Customer as bailee. The Customer shall store the Equipment in such a way that clearly identifies the Equipment as being the property of Evolution.
7.3 Evolution or its employees, agents or contractors may enter any land or premises where the Equipment is situated to inspect it, and to retake possession of the Equipment.

 

8. PERSONAL PROPERTY SECURITIES ACT 1999 (PPSA)
8.1 The Customer acknowledges and agrees that:
(a) these Terms constitute a security agreement for the purposes of the PPSA; and
(b) it grants Evolution a security interest in all Equipment supplied or to be supplied by Evolution to the Customer and all proceeds of that Equipment – being a monetary obligation of the Customer to Evolution for the Services.
8.2 The Customer undertakes to:
(a) sign all documents and provide any further information (such information to be complete, accurate and up to date in all respects) which Evolution requires to register a financing statement or financing change statement on the Personal Property Securities Register;
(b) Indemnify, and upon demand reimburse, Evolution for all expenses incurred in registering a financing statement or financing charge statement on the Personal Property Securities Register or releasing any such Equipment charged; and
(c) Not register, or permit to be registered, a financing statement or a financing change statement in relation to the Equipment in favour of a third party.
8.3 Evolution and the Customer agree that nothing in sections 114(1)(a), 133 and 134 of the Personal Properties Securities Act 1999 (PPSA) shall apply to these Terms.
8.4 The Customer waives its rights as a debtor:
(a) under sections 116,120(2), 121, 125, 126,127,129,131 and 132 of the PPSA; and
(b) to receive a verification statement in accordance with section 148 of the PPSA.
8.5 The Customer shall unconditionally ratify any actions taken by Evolution under this Clause 8.

 

9. RESPONSIBILITIES
9.1 The Customer will perform its responsibilities as set out in the Schedule which forms part of this Agreement, or as otherwise notified by Evolution to the Customer. Any costs, losses or damages incurred by Evolution as a result of the Customer’s failure to perform such responsibilities in a timely manner, will be reimbursed by the Customer as a debt immediately due and payable to Evolution:

 

10. WARRANTIES
10.1 The Customer warrants to Evolution that:
(a) it has satisfied itself prior to taking delivery of the Equipment that the Equipment are suitable for the Customer’s purposes; and
(b) it has relied solely on its own skill and judgment and it has not relied on any representation, statement or warranty made by Evolution or any of Evolution’s employees, agents or contractors about the performance of the Equipment and/or Services or the suitability of the Equipment and/or Services for their intended use.
10.2 The Customer and Evolution agree:
(a) that the Equipment and Services are provided by Evolution, and acquired by the Customer, in trade, and therefore the provisions of the Consumer Guarantees Act 1993 are expressly excluded; and
(b) any other conditions or warranties implied in these Terms are expressly excluded to the maximum extent permitted by law.

 

11. LIMITATION OF LIABILITY
11.1 Notwithstanding anything to the contrary in these Terms, and to the maximum extent permitted by law, Evolution will not be liable whether in tort, contract or otherwise, to the Customer for any Loss of any kind whatsoever sustained, or incurred by the Customer or any other party in relation to the supply, installation or use of the Equipment or the provision of the Services, including without limitation, Loss of any kind whatsoever arising from:
(a) the following particular weather conditions:
(i) wind or wind gusts greater than wind load forces specified by the manufacturer or Evolution for the Equipment;
(ii) hail;
(iii) temperatures in excess of 35 degrees celsius;
(iv) temperatures below 0 degrees celsius; or
(v) any other weather, as advised by the national weather bureau as being “severe” or giving rise to a “weather warning”; or
(b) any act or omission of the Customer or its employees, agents or contractors or any other person.
11.2 If Evolution is found to be liable for any reason whatsoever, Evolution’s liability under these Terms, whether in contract, tort or otherwise is limited (to the fullest extent permitted by law), at Evolution’s option, to replacing the applicable Equipment or repeating the Services, or to an amount not exceeding the total Price for the relevant Equipment or Services.
11.3 In no circumstances will Evolution be liable for any loss of revenues, loss of profit or any consequential, indirect or special losses or damages.
11.4 Delay and Extension of Time: Evolution will not be liable for any Loss expense or injury resulting from delay in the Supply of Equipment or Services, however caused. The Customer may not terminate these Terms or withhold any payment due to a delay in completing the Supply of Equipment or Services.

 

12. INDEMNITY
12.1 The Customer at all times indemnifies Evolution from and against all Loss Evolution incurs, and all actions, suits, claims, demands and other proceedings whatsoever or howsoever made or brought against Evolution, as a consequence of:
(a) any breach of these Terms by the Customer; or
(b) any representation made, or any act, omission, or negligence committed by the Customer and its employees, agents, contractors or by those for whom the Customer is responsible; or
(c) any failure to install or use the Equipment in accordance with the manufacturer’s or Evolution’s guidelines and specifications, or any applicable industry codes or standards; or
(d) any failure to perform the Customer responsibilities set out in the Schedule Evolution Scaffolding Limited – Terms & Conditions of Trade.

 

13. GENERAL
13.1 Sub-Contract: Evolution may license or sub-contract all or any part of its rights and obligations without the Customer’s consent provided that it remains primarily responsible under the Terms.
13.2 Force Majeure: Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock out, industrial action, fire, flood, drought, storm or other event beyond the reasonable control of either party. The Customer acknowledges that force majeure includes any adverse weather that may: (a) compromise the safety of Evolution employees, contractors or sub-contractors; or (b) compromise the integrity of the Equipment or the intended structure in proximity to the Equipment. The performance of Evolution’s obligations under this Agreement will be suspended for the duration of the force majeure event and any re-mobilisation required.
13.3 Intellectual Property: All drawings and designs, prepared or supplied by Evolution belong to Evolution and must not be used by the Customer other than in connection with the Equipment or Services supplied by Evolution to the Customer.
13.4 Representations: No Evolution employee, agent or representative are authorised to make any representations, statements, conditions, agreements or variations to this Agreement and nor shall Evolution be bound by any such representation. Only Evolution directors can make any representations or variations to the Terms, all of which must be in writing.
13.5 Governing Law: These Terms shall be governed by the laws of New Zealand and are subject to the non-exclusive jurisdiction of the courts of New Zealand.

 

14. PRIVACY ACT
14.1 The Customer authorises Evolution to collect, retain and use commercial, personal or credit information (including credit default information, ongoing credit account information and repayment history information) about the Customer and/or the Guarantor (if any) (Information), for the purpose of assessing the Customer’s creditworthiness and for any reasonable marketing reasons.

 

15. ENTIRE AGREEMENT
15.1 To the maximum extent permitted by law, these Terms constitute the entire agreement of the parties and supersede all prior agreements, understandings, negotiations and representations and discussions whether oral or written between the parties, and Evolution and the Customer agreement sections 9, 12A and 13 of the Fair Trading Act 1986 are expressly excluded.

SCHEDULE – CUSTOMER RESPONSIBILITIES

 

Access:
a) The Customer must ensure that Evolution is granted full unrestricted and safe access to the Customer site where the Equipment has been or will be installed and it shall ensure that it has the appropriate consents and authorisations to provide such access.
b) The Customer must provide Evolution with clear and unrestricted access to the ground/floor or other area which is adequate for placement of the scaffolding. If restrictions to areas are to be imposed, Evolution will require notification in writing prior to start of the scaffold erection. If access is restricted, this may affect the quoted price. If access is across an existing boundary line (including as may be necessary for bracing), it is the customer’s responsibility to advise Evolution what the exact boundary details are and obtain permission from the adjacent property owner prior to commencement of any Services on site;
c) The Customer acknowledges and accepts that where the Equipment is required to be “tied” to the building structure, using either bolts, pins or screw eyes, the subsequent repairs of these holes and/or repainting shall be the responsibility of the Customer.
d) Where the Services require the scaffold to be “tied” to the building using any method, the Customer must ensure that the construction process allows for these ties to remain in position whilst the Equipment is in place.
e) The Customer agrees and acknowledges that it will be responsible for ensuring that where Equipment is installed on roofs, concrete areas, patios, driveways, timber decks or similar, that suitable coverings are put in place to prevent any damage including marking or staining to the applicable surface. Evolution shall not be liable for loss or damage to the site including, without limitation, any roof, pathways, driveways, concrete, paved or tiled areas unless caused by the gross negligence of Evolution.
f) The Customer will be responsible for confirming with the appropriate authorities that all power cables are safe within 4 metres of the proposed location of the Equipment prior to Services commencing.
g) The Customer will be responsible for provided Evolution, whilst at the site, with adequate access to lighting, water, electricity, toilet and washing facilities.

 

Other Responsibilities:

 

The Customer shall:
h) Immediately notify Evolution of the full circumstances of any fault or damage relating to the Equipment during the Hire Period; however, such notification shall not absolve the Customer from the requirement to safeguard and insure the Equipment.
i) Satisfy themselves upon erection, and in any event prior to use, that the Equipment is fit for the intended purpose.
j) Use the Equipment solely for its intended purpose and strictly in accordance with the law (including health and safety regulations and guidelines) and any instructions provided by Evolution including on the scaffold tag.
k) Ensure that all persons using the Equipment have been appropriately instructed on its safe and proper use and are competent to use the Equipment.
l) Obtain, at its own expense, all engineering reports, certificates and all licenses, permits and approvals that may be required for the supply of the Equipment and/or Services. This includes (where applicable) any engineer’s certificate confirming that the structure is sound and suitable for any shrink wrap system to within all environmental loads.
m) Upon termination or expiry of the Agreement, ensure that the Equipment is returned to Evolution in the same condition as it was when delivered, excluding fair wear and tear.
n) Not make any additions or alterations to the Equipment and ensure that no one other than Evolution are to make any additions or alterations to the Equipment. Where such unauthorised additions or alterations are made, Evolution reserves the right to charge any additional fees necessary to cover the costs to safely rectify such unauthorised alterations. Should the Customer dismantle all or part of the Equipment, it will not be entitled to any refund of fees paid for such dismantle or removal services and any unpaid fees for such Services will still be payable by the Customer.
o) Use the Equipment solely for the Customer’s own works and shall not allow any third party to use any part of the Equipment for any other works.
p) Not exceed the recommended and legal load limits for the Equipment.
q) Ensure that there is no excavation of foundation surface next to or near the Equipment. If this is required, then Customer is responsible for shoring the area and for the stability of structure. If extra scaffold is required for shoring, then this will be charged to the Customer as a variation.
r) Put in place adequate security precautions so as to prevent unauthorised access to site or buildings via the Equipment. Evolution will not accept responsibility for any loss or damage caused due to unauthorised entry.
s) Not fix the Equipment to any land so as to make it a legal fixture forming part of any freehold or leasehold.
t) Pay any costs incurred by Evolution on demand to replace the equipment at market cost, that resulted from loss, theft, damage or destruction during the Hire Period; and
u) Pay any costs incurred by Evolution on demand to repair maintain alter or adjust the goods if such repair, maintenance, alteration or adjustment is due to the fault of the Customer.

 

The erection of scaffold on to existing or new structure that may require additional support i.e. Back Propping to support the additional dead and live loads of scaffold will require the following:
(a) The Customer is to supply written authorisation to use the existing building structure from the building owner prior to scaffold commencing.
(b) The Customer is to approve the design and give written approval from the Customers on-site engineers prior to scaffold erection.