A. This agreement is made on: ………………………….
B. The parties are:
i. Contractor: Drug Smart NZ Limited trading as “Drug Smart”.
ii. Client: ………………… being the person(s) who has/have accepted these terms and conditions.
The Contractor and the Client agree that the Contractor will supply the Works subject to the following terms and conditions:
1.1 ’Contractor’ shall mean the Contractor named in the above Particulars at clause B i as a party to these terms and conditions, its successors and assigns.
1.2 ’Client’ shall mean the person(s) and/or legal entity and/or entities named or otherwise described in the above Particulars at clause B ii above as a party to these terms and conditions.
1.3 ’Works’ shall mean the Works described in the confirmation and invoice provided by the Contractor to the Client save that:
1.3.1 In respect of any methamphetamine sampling and related Report to be supplied by the Contractor to the Client the scope of works is defined in clause 11 below.
1.4 “Fee” shall mean, subject to clause 2, the price payable for the Works exclusive of GST, if any.
1.5 “Report” shall mean any written Report supplied by the Contractor to the Client as part of the Works.
2. Price & Payment
2.1 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.
2.2 The Contractor reserves the right to change the Fee in the event of any variation from the plan of scheduled Work 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.
3. Time of Supply
3.1 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.
4. Consumer Guarantees Act
4.1 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.
4.2 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.
5. Intellectual Property and Confidentiality
5.1 The Works, including without limitation, the Report, is confidential and has been prepared solely for the Client. 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.
5.2 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.
6.1 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.
6.2 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.
7.1 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.
7.2 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.
8. Privacy Act 1993
8.1 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):
8.1.1 Enabling the Contractor to perform its obligations pursuant to any contract (including these terms and conditions) with the Client;
8.1.2 Administering, whether directly or indirectly, any contract (including without limitation, these terms and conditions) with the Client and enforcing the Contractor’s rights thereunder;
8.1.3 Enabling the Contractor to communicate with the Client for any purpose.
8.2 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.
9. Conflict of interest
9.1 The Contractor warrants that it has no interest, present or contemplated, in the subject property.
10. Scope of Work – Methamphetamine Sampling
10.1 Clause 11 (including its subclauses) defines the scope of Works for any methamphetamine sampling supplied by the Contractor to the Client.
10.2 The Contractor will obtain samples from the subject property. Those samples will be forwarded to an IANZ accredited laboratory. The laboratory shall process the samples and produce a Laboratory Analysis Report. The Contractor shall supply a Report to the Client including the Laboratory Analysis Report.
10.3 The Client acknowledges that the samples collected by the Contractor at the subject property may not be representative of the presence or absence of methamphetamine throughout the entire property or other areas of the property where samples have not been collected.
10.4 The sample collection by the Contractor and the Report produced is not a guarantee or warranty of the presence or absence of methamphetamine in the property, its structures, systems, or component parts.
10.5 For multi-unit properties, the Contractor will collect samples from the particular subject unit only.
11. Reasonable Access
11.1 The Client will ensure that the Contractor is legally entitled to have reasonable and unobstructed access to the property that is the subject of the Works including, without limitation, the roof cavity and foundation spaces.
11.2 Where the Contractor is required to re-visit a property because access was not gained at the agreed time, a further charge may be added to the Fee.
12.1 Any provision of these terms and conditions that is binding on more than one party will bind such parties jointly.
12.2 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:
12.2.1 to claim damages and/or an indemnity for breach of that obligation; and
12.2.2 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.
12.3 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.
12.4 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.
12.5 No variation or amendment to these terms and conditions is effective unless it is in writing and signed by all the parties.
12.6 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.
12.7 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 Contracts (Privity) Act 1982, to enforce any of its terms.
12.8 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.
12.9 The Client warrants that the Client is legally entitled to enter into the terms and conditions.
12.10 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.