Terms of Trade

POWERWASH LIMITED - TERMS OF TRADE

1. DEFINITIONS

1.1. “Contract” means the contract formed as a result of Powerwash undertaking the Services on these terms for the Customer.
1.2. “Contract Documentation” means all documentation between you and us forming the contractual arrangement for the Services, including the Quote.
1.3. “Contract Price” means the price for the Services calculated in accordance with the Contract Documentation, subject to any adjustments under these terms.
1.4. “Customer” means the party named as such in the Quote (also referred to as ‘you’, ‘your’) or who otherwise engages us to carry out Services.
1.5. “Direct Debit Authority” means the form of direct debit authority provided by Powerwash’s bank from time to time as required to set up payments by direct debit.
1.6. “Goods” means any goods, materials, parts or other stock supplied by Powerwash in the course of providing the Services to be carried out.
1.7. “Including” does not imply limitation.
1.8. “normal business hours” means 8.00am to 5.00pm Monday to Friday excluding public holidays or amended to such hours as agreed between the parties.
1.9. “Powerwash” means Powerwash Limited, a duly incorporated company having its registered office at Auckland, New Zealand, its successors and assigns or any person acting on behalf of and with the authority of Powerwash Limited (also referred to as ‘us’, ‘we’ and ‘our’).
1.10. “Premises” means the address at which the Services are to be carried out, as stated in the Contract Documentation.
1.11. “Quote” means the quote, quotation, letter, email or other documentation (if any) given by Powerwash to the Customer describing the Services to be provided.
1.12. “Services” means services to be provided by Powerwash including any Goods to be supplied by Powerwash as set out in the Contract Documentation.
1.13. “Variation” means a variation to the Services under clause 17.
1.14. “Vehicle” means any vehicle or vehicles brought to the Premises for the provision of our Services.
1.15. “Working Day” has the meaning given in the Construction Contracts Act 2002.

2. ACCEPTANCE

2.1. These are the terms between us, Powerwash, and you, the Customer. If you accept a Quote from us, or otherwise engage us to carry out Services, you accept that these terms apply to those Services and to all other goods and services we provide you from time to time (unless we otherwise agree in writing).

3. QUOTES

3.1. Quotes given are valid for 30 days, provided that Quotes are based on costs and charges applying at the date of Quote. Without limiting the rest of this clause 3 or clause 17, any changes in cost arising from sources beyond Powerwash’s control are to the Customer’s account, and may be claimed as a Variation. Powerwash shall endeavour where possible to provide an updated Quote prior to carrying out any Variation.
3.2. Unless stated otherwise, all amounts stated in Quotes are exclusive of GST and any credit card or other merchant fees.
3.3. The fact that a Quote has been given, and the contents of that Quote, are commercially sensitive and confidential to Powerwash, and may not be disclosed to any person without Powerwash’s prior written consent.
3.4. The Customer acknowledges that some instances, the Quote will include a portion of the costs for the Services that is expressed as an estimate or Powerwash will be unable to provide a firm quote. Where Powerwash gives an estimate of the cost of the Services, that estimate is Powerwash’s genuine
best estimate of the Contract Price taking into account the information provided by the Customer, Powerwash’s assessment of the Services and the current prices charged for Goods. For the avoidance of doubt, Quotes that contain an estimate may still be subject to Variation.

4. AUTHORISED REPRESENTATIVE

4.1. Unless otherwise limited as per clause 4.2 the Customer agrees that if the Customer introduces any third party to Powerwash as the Customer’s duly authorised representative, that person shall have the full authority of the Customer to order any materials or Services or to proceed with Services on the
Customer’s behalf and/or to request a Variation to the Services on the Customer’s behalf (such authority to continue until all requested services have been completed or the Customer otherwise notifies Powerwash in writing that said person is no
longer the Customer’s duly authorised representative).
4.2. In the event that the Customer’s duly authorised representative as per clause 4.1 is to have only limited authority to act on the Customer’s behalf then the Customer must specifically and clearly advise Powerwash in writing of the parameters of the limited authority granted to their representative.
4.3. The Customer specifically acknowledges and accepts that they will be solely liable to Powerwash for all additional costs incurred by Powerwash in providing any Services by the Customer’s duly authorised representative (subject always to the limitations imposed under clause 4.2 (if any)).

5. OUR RESPONSIBILITIES

5.1. We will carry out the Services with reasonable skill and care, in accordance with the plans and specifications (if any), and, shall comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities that may be applicable to the Services.
5.2. Powerwash will remedy any defect in the Services which you notify to us in writing within 30 days of completion of the Services. Your notice must be sufficiently detailed to clearly identify what Service is claimed defective. We are not liable for any defect within reasonable tolerances, failure to achieve
standards of finish or detail beyond what is required by the contract (subject to consents and Variations) and for any defect caused by or arising out of the actions of any person outside our control, for any faults in the performance or durability of materials supplied by you, fair wear and tear, or failure to maintain the Services.
5.3. Any warranties given are only for normal domestic and commercial use and do not apply to any defects or damage not due to defective materials or workmanship, including those resulting from accidental damage, failure due to misuse or abuse (including failure to properly service the Goods in accordance with the manufacturer’s instructions), alteration or repair of the Goods other than by us, attachment of any parts or accessories other than as approved by us, excessive temperature or corrosive atmosphere. Warranties are only applicable to the Customer named in the Contract Documentation and are not assignable.

6. YOUR RESPONSIBILITIES

6.1. You are responsible for ensuring that you have sufficient legal entitlement to the Vehicle to allow the Services to be carried out.
6.2. You shall advise us of any particular hazards relating to the Vehicle, and take all practicable steps to ensure your own safety throughout the Services and cooperate fully in implementing our health and safety and environmental policies and procedures and obligations under the relevant health and
safety legislation.
6.3. You shall advise us in writing prior to commencement of Services on your Vehicle if any induction is required, any such induction shall be arranged mutually and shall be at no cost to Powerwash.

7. CONTRACT PRICE, PAYMENT AND CREDIT

7.1. At Powerwash’s sole discretion the Contract Price shall be either:
       7.1.1. Powerwash’s quoted price (subject to clause 7.2 below); or
       7.1.2. as indicated on any invoice provided by Powerwash to you.
7.2. Powerwash reserves the right to change the Contract Price in the case of a Variation. Powerwash Limited RWA608 (updated October 2023)
7.3. The Customer must make payment of each invoice in full, in cleared funds and without deduction, set off or claim.
7.4. Time for payment for the Services is of the essence. Unless otherwise set out in this agreement or agreed by Powerwash, invoices shall be issued and the Contract Price is payable by the Client immediately on completion of the Services.
7.5. Powerwash may at its sole discretion require payment in full prior to providing Services.
7.6. Where Powerwash has agreed in its sole discretion for Services to be charged to a valid credit account:
        7.6.1. payment is due in cleared funds by the 20th of the month following the date of invoice by Powerwash;
        7.6.2. Powerwash may require the Customer to pay by way of direct debit, and in such circumstances the customer agrees to complete and return to Powerwash a Direct Debit Authority; and
        7.6.3. Powerwash will monitor the amount of credit the Customer has incurred and reserves the right at any time to cease providing Services to the Customer until the amount outstanding has been decreased to a level acceptable to Powerwash.
7.7. Powerwash reserves the right to charge interest for late payment, in which case interest shall be payable at the rate of 22% per annum on amounts outstanding payable from the due date to the date of actual payment.
7.8. The Customer will be liable to Powerwash for all costs (including costs on a solicitor and client basis and collection agency commissions) incurred by Powerwash in recovering (or attempting to recover) any amounts owed to Powerwash by the Customer.

8. DELIVERY & RISK

8.1. Unless otherwise stated in writing, all times quoted for delivery of Services are estimates only and Powerwash shall not be liable for any loss or damage direct or consequential arising from failure to deliver on the anticipated or estimated time for delivery.
8.2. The Customer shall not be relieved of any obligation to accept or pay for Services or Goods by reason of any delay in delivery or performance by Powerwash.
8.3. Powerwash shall not be liable for any delay or failure in the Services or performance of any of the obligations imposed by the Contract due directly or indirectly to circumstances reasonably outside of our control, including force majeure, accidents, variations of the Services, or any acts of any government, territorial authority or similar body.
8.4. Risk of damage to or loss of the Goods passes to the Customer on delivery, the Customer must insure the Goods on or before
delivery.
8.5. If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Customer, Powerwash is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by Powerwash is sufficient evidence of Powerwash’s rights to receive the insurance proceeds without the need for any person dealing with Powerwash to make further enquiries.

9. INTELLECTUAL PROPERTY

9.1. All intellectual property (such as patentable inventions, non-patentable processes or know-how, data, design, copyright, trade marks and the like) held by Powerwash at the commencement of the Contract or created by Powerwash as a result of the Contract shall belong to Powerwash, unless otherwise agreed in writing between the parties.

10. OWNERSHIP IN GOODS

10.1. The Customer acknowledges and agrees that:
         10.1.1. the legal, equitable and beneficial ownership and title to any plant, equipment or materials brought onto the Premises by us remains vested in us at all times;
         10.1.2. title in all equipment, fixtures, fittings and other materials supplied as part of the Services remains vested in us until all amounts owing to us have been paid in full.
10.2. The Customer authorises Powerwash to enter on to the Customer’s property for the purposes of removing Goods where payment of Powerwash’s invoice in relation to the supply of those Goods has been outstanding for a period exceeding 60 days. The Customer acknowledges and agrees that Powerwash will not be liable for any damages, direct or consequential caused by Powerwash either entering the Customer’s property or by Powerwash removing Goods from the Customer’s property.
10.3. For the purposes of the Personal Property Securities Act 1999 (PPSA), you agree that a security interest is granted in your present and after acquired property (including the property described in clause 10.1 and all proceeds of that property) to secure all amounts owing to us. We may apply all payments in such manner as is desirable to preserve any purchase money security interest in that property. Nothing in section 116,120(2), 121, 125 to 127, 129, 131, 133 and 134 of the PPSA applies to the security interest, and you waive the right to receive a verification statement in respect of any security interest.

11. INSURANCE AND LIABILITY

11.1. The Customer is responsible for insuring the Vehicle (and Powerwash may require that proof of such insurance is provided).
11.2. Powerwash holds Public Liability insurance up to $10 million to insure us for our legal liability in connection with our business for accidental loss to the property of others or accidental personal injury to any other person, subject always to the terms and conditions of our insurance policy.
11.3. Notwithstanding anything to the contrary contained in these terms or any other agreement between us, our maximum aggregate liability to the Customer under or in connection with these terms (including in contract, tort, negligence, equity, breach of statutory duty or otherwise) shall not in any event exceed the lesser of:
         11.3.1. an amount equal to the amount recoverable by Powerwash for a claim under our insurance policy (only applicable if we make a claim on our insurance policy), or
         11.3.2. the Contract Price of the Services supplied to you in the 12 months immediately preceding the event giving
rise to your claim.
11.4. Powerwash is not liable for any indirect, special or consequential damages of any kind, including in respect of loss of profits, business or anticipated savings, however arising, whether under contract, tort, negligence, equity, breach of statutory duty or otherwise.

12. DAMAGE TO VEHICLES

12.1. Any damage to vehicles at Powerwash Premises will be dealt with in a fair and open way. If Powerwash is found to be at fault, we will cover the cost of the damage to your vehicle.
12.2. If your vehicle is damaged in any way at Powerwash Sites and you perceive Powerwash to be at fault you must make Powerwash aware of this within 24 hours of the damage occurring.
12.3. Powerwash is only responsible for any immediate damage caused by our actions, i.e., if we scratch you bonnet, we will fix that scratch but no others.

13. PRIVACY

13.1. Powerwash respects your privacy and is committed to protecting your personal information. The Privacy Act (2020) requires us to tell you when we collect personal information and how we will use it.
13.2. We collect and use personal information (including but not limited to name, contact details, payment details) in order to provide the Services, to complete business transactions with you and provide you with ongoing customer support in regard to our Services. Our privacy statement is available to view on request.
13.3. Unless you notify us otherwise, you consent to receiving marketing, promotional and other material by way of electronic messages from us. We may also use your contact information to send you publications (newsletters/updates). These publications will include an unsubscribe option should you wish
to discontinue receiving our publications.
13.4. We may disclose information to the following:
         13.4.1. service providers (e.g. businesses to which we contract maintenance work, debt collection agencies, process servers, lawyers, telco suppliers, etc);
          13.4.2. government authorities under statutory obligation.

Powerwash Limited RWA608 (updated October 2023)

13.5. You have the right to access most personal information that we hold about you. Sometimes that will not be possible but if that is the case you will be told why.

14. SUSPENSION AND TERMINATION

14.1. Without prejudice to any of our other rights or remedies, we may suspend the Service (including the provision of documentation) at any time if you default in any of your obligations under these terms (including without limitation health and safety obligations), including failing or refusing to pay any invoiced amount in full by the due date for its payment.
14.2. We may terminate our obligations under these terms if at any time you:
         14.2.1. become bankrupt, have a liquidator, receiver or statutory manager appointed; or
         14.2.2. default in your obligations under these terms and do not remedy that default within 5 Working Days of receiving a notice requiring remedy.

15. BUSINESS TRANSACTIONS

15.1. The Customer agrees that where the Contract involves the supply of services or goods of a kind ordinarily acquired for personal, domestic, household use or consumption but the Customer is acquiring those services and/or goods for the purposes of a business, then to the maximum extent permitted by the law, all guarantees, warranties, rights, or remedies implied by the Consumer Guarantees Act 1993, the Fair Trading Act 1986 and other guarantees, warranties, or provisions that would otherwise be implied by statute or rule of law are expressly excluded.

16. INDEMNITY

16.1. The Customer shall indemnify Powerwash and keep Powerwash fully and effectively indemnified against all losses, claims, damages, costs (including costs on a lawyer to client basis), charges, expenses, liabilities, demands, proceedings, and actions whatsoever which Powerwash may sustain or incur or
which may be brought or established against it by any person and in any case which arise out of or in relation to the performance by Powerwash of the Services, or by reason of any breach by the Customer of any of its obligations under the Contract or any other act or omission of the Customer whether
or not by reason of any Act, regulation, common law rule, or in equity or otherwise and whether for damages or for other relief.

17. VARIATIONS

17.1. The Customer may request a Variation to the Services but may not (unless otherwise agreed in writing) request a Variation omitting or reducing the Services to be performed.
17.2. Powerwash is entitled to claim a Variation for:
         17.2.1. any emergency works required for health and safety or environmental reasons;
         17.2.2. additional work and/or changes to the Services;
         17.2.3. unforeseen physical conditions and latent issues which Powerwash could not be aware of at the time of giving a Quote and/or are discovered on commencement of the Services;
         17.2.4. in the event of increases to Powerwash in the cost of labour, goods, currency exchange rates or shipping costs which are beyond Powerwash’s control;
         17.2.5. substitutions of any materials;
         17.2.6. any increase in costs arising from a failure or delay on the Customer’s part in complying with these terms; and
         17.2.7. any Services provided outside normal business hours (except where otherwise agreed by the parties).
17.3. No allowances have been made in the Contract Price for the handling of hazardous substances (including asbestos), and Powerwash is also entitled to claim a Variation for any such costs.
17.4. For the purpose of calculating any variation to quoted work under this clause 17 where an updated Quote has not been provided or agreed, labour will be charged at our standard commercial rates from time to time (including administration, mileage, accommodation, travel charges), and materials will be charged at cost plus a margin. A surcharge may apply to work carried out outside normal business hours.
17.5. A Customer order accepted by Powerwash shall not be cancelled by the Customer except by agreement in writing upon terms agreed between Powerwash and the Customer including cancellation charges which may be deducted from any advance payments made.
17.6. In the event of Powerwash incurring additional cost by reason of the Customer failing to give Powerwash sufficient instructions pertaining to the Contract or delivery of the Services the Contract Price may be increased at the option of Powerwash.

18. CUSTOMER INFORMATION

18.1. Each person signing the Contract Documentation agrees that we may obtain information about your creditworthiness for the purposes of deciding whether to provide (or to continue to provide) goods and services to you. You consent to any person providing us with such information, and irrevocably authorise us to complete a credit check on you and/or disclose information to any person for any purpose relating to your credit or debt collection, including loading and checking details with any credit reporting agency.

19. NOTICES

19.1. All notices are to be in writing and hand delivered or sent by post or email to the addresses set out in the Contract Documentation. Our address for service is Powerwash Limited, 8 Norman Spencer Drive, Papatoetoe, Auckland 2104, New Zealand.
19.2. A notice is deemed to be received:
        19.2.1. if personally delivered, when delivered; or
        19.2.2. if posted, 5 Working Days after posting; or
        19.2.3. if sent by email, when the email leaves the sender’s communications system, provided that the sender does not receive any error message relating to the sending of the email.
19.3. Despite clause 19.2, any notice received after 5pm, or received on a day that is not a Working Day, is deemed not to have been received until 9am on the next Working Day.

20. DISPUTE RESOLUTION

20.1. Nothing in these terms operates to exclude or restrict the ability of either party to apply to a court of competent jurisdiction for injunctive relief.
20.2. If there is any dispute or disagreement relating to these terms or the Services, the party raising the dispute must give the other party written notice specifying particulars of the dispute. The parties agree that they will attempt to resolve the dispute by negotiation.
20.3. The parties agree that any dispute not resolved by negotiation after 20 Working Day of the written notice in accordance with 20.1 above may be referred by either party to the parties’ Managing Directors (or equivalent) for resolution.
20.4. If the dispute cannot be resolved by the parties’ Managing Directors within ten (10) Working Days after the date of referral under clause 20.3 then the dispute shall be determined by the relevant courts

21. GENERAL

21.1. The benefit of the Contract shall not be assigned by the Customer without the consent of Powerwash in writing.
21.2. The Contract shall be deemed to have been entered into in New Zealand and shall be governed by the laws of New Zealand
21.3. Any dispute between the parties which has not been settled by full and frank discussion may (after giving thirty days notice) be referred by either party to arbitration in accordance with the provisions of the Arbitration Act 1996 by an arbitrator appointed by the President for the time being of the New Zealand Law Society. Judgment on the award rendered may be entered in any Court having jurisdiction.
21.4. Any waiver by Powerwash of any rights arising from the Contract shall not be construed as a continuing waiver or a waiver of other breaches of the same or other terms of the Contract by Customer. No delay or forbearance by Powerwash shall be construed as a waiver of Powerwash’s rights.
21.5. Nothing in the Contract shall create a partnership or agency between the parties except as expressly provided.
21.6. The Contract sets out the entire agreement and understanding between the parties relating to the subject matter. Powerwash may make modifications or amendments to the Contract terms Powerwash Limited RWA608 (updated October 2023) and conditions by posting a copy of the amendments to the Customer. Any request for Services after the amendments have been disclosed will be undertaken on the amended terms.