• DEFINITIONS AND INTERPRETATION

1. 1. The following definitions apply in these Terms:

Bracey, we, us and our means Bracey Electrical Limited.

Business Day means any day other than a Saturday, Sunday or public holiday in the region in which the Services are provided.

Confidential Information means this Agreement and any non-public financial, business or commercial information relating to a Party (in any form) which the other Party may receive or obtain in connection with this Agreement or the Services.

Customer, you and your means you, the Customer.

Insolvency Event means, in relation to a Party, that Party:

1. becomes insolvent or otherwise cannot pay its debts as and when they fall due;   
2. has a receiver, administrator or liquidator appointed in relation to all or a material part of its assets; 
3. fails to comply with a statutory demand made in accordance with section 289 of the Companies Act 1993;
4. commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or enters into any composition or arrangement with its creditors generally.

1. The following rules of interpretation apply in this Agreement:

1. References to persons include natural persons and any other body corporates (wherever incorporated).
2. References to the words including, include or similar words do not imply any limitation.

• AGREEMENT

1. 1. 1. Unless agreed otherwise by us in writing, these terms of trade (Terms) apply to every supply of Goods and Services by us to you.  We reserve the right to amend the Terms from time to time by written notice to you.  Your continued use of the Services, or subsequent requests for further Services will be deemed acceptance of such amended Terms and such amended Terms will replace any previous arrangements or understandings between you and us.
      2. If you continue to engage us and/or accept a Confirmation that shall constitute acceptance of these Terms and such Confirmation, together with these Terms, shall constitute the agreement between you and us (Agreement).  Any variations or additions to the Agreement not expressly agreed in writing by us are expressly rejected.

• SERVICES

1. 1. We will provide the Services and supply the Goods on the basis set out in our quote and otherwise in accordance with the terms and conditions contained in this Agreement.    
   2. In our performance of the Services, we will:

1. exercise due care and skill; 
2. comply will all applicable laws, regulations and by-laws in force relating to the provision of the Services; 
3. supply all consumables, materials, equipment, machinery or other goods (together, Goods) necessary for, or ancillary to, the provision of the Services and will assign the benefit of any warranties granted by the manufacturer of such Goods to you;
4. maintain all licences, consents and permits required for the performance of the Services.

1. We will perform the Services at the location(s) and at the times and frequencies agreed by the Parties from time to time.  You must give us full access to the location at which the Services are to be performed for the purposes of performing the Services. 
2. You must provide all reasonable support and direction that we require to provide the Services.  We may, at any time, request instructions from you prior to undertaking any Services, and may defer undertaking such Services pending receipt of your instructions.  You must promptly respond to any such request.  Actions taken by us in accordance with your instructions shall constitute proper conduct within the scope of our authority under this Agreement.

• RATES AND EXPENSES

1. 1. The rates payable by you shall be as agreed or quoted in writing prior to our provision of the Services, or, in the absence of any agreement thereof, at our then-prevailing standard rates (Rates).  A rate card will be provided upon your request.  
   2. We may adjust the Rates from time to time by notice to you, and such adjustment will take effect on and from the date that is 14 days from the date of our notice.   
   3. In addition to the Rates, you agree:

1. to reimburse us for the cost of procuring any Goods in connection with the provision of the Services plus any margin charged by us on such Goods; 
2. to pay an allowance calculated at 1.5% of the invoiced Rates for general materials and consumables used by us in connection with the Services; 
3. to reimburse us for all expenses reasonably incurred by us in performing the Services, including all mileage and travel expenses.  

1. Unless we require payment in part or in full in advance of providing any Services or Goods (which we may so require in our sole discretion), we will submit GST invoices to you on a monthly basis or on completion of the Services and provision of the relevant Goods.  You must pay each GST invoice in full and without setoff or deduction within seven days of the date of invoice.  Payment will be made by direct credit to our nominated bank account.  
2. If a sum required to be paid you under this Agreement is not paid to us by the due date:

1. you must also pay interest on that sum at the rate of 10% per annum (calculated daily and capitalised monthly) for the period beginning on the due date and ending on the date that the sum (including all accrued interest) is paid in full by you; and
2. we shall not be obliged to perform further Services unless and until such outstanding amounts are paid to you.

• VARIATIONS TO SERVICES

1. 1. You may at any time request a reasonable amendment to the scope, nature, volume or execution of the Services or Goods (a Variation).  Such request must include sufficient information to enable us to assess the Variation, including as a minimum:

1. a description of the Variation;
2. details of the effect of the proposed Variation on the Services, our obligations and the Rates; and
3. the proposed commencement date of the Variation.

1. We will use reasonable endeavours to accommodate any Variation requested by you as soon as reasonably practicable.
2. Unless you specify in your request that you wish to pre-approve the Rates payable for the Variation (in which case we shall not proceed until you have approved such Rates), you agree to pay the Rates payable for the varied Services as determined by us calculated in a manner consistent with the Rates payable for analogous Services or Goods. 

• SUBCONTRACTING 

1. 1. 1. We may subcontract all or part of the Services.  The entry by us into a subcontract will not relieve us from liability for the performance of any of our obligations under this Agreement.  

• HEALTH AND SAFETY 

1. 1. 1. We will perform the Services in accordance with all applicable health and safety laws.
      2. We will ensure our employees and contractors who perform the Services are properly trained in health and safety and safe working methods.  
      3. The Customer and Bracey Electrical will consult, cooperate, and coordinate on all activities involved in undertaking the Services, to ensure that both Parties understand the work involved in undertaking the Services, the risks to health and safety arising from the Services, and the controls to be implemented to mitigate those risks (including by who).
      4. We will also comply with any site specific health and safety plan agreed between the Parties in writing for the Services, together with all of your health and safety policies which are previously notified to us in writing.  

• DEFECTS

1. 1. You shall inspect the Services on completion by us and must within five days notify us of any alleged defect or non-conformance in the Services (Defect).  You shall afford us an opportunity to inspect the Services within a reasonable time following receipt of notification.  If you fail to comply with these provisions, the Services shall be deemed to be free from any Defect and acceptable in all respects.
   2. We will promptly rectify any Defect notified by you to us in accordance with clause 8.1, provided that we will not be liable for any Defect to the extent it arises as a result of: 

1. fair wear and tear;
2. us complying with your specifications, directions or instructions; 
3. any alteration, modification or repair of the Services by any person other than us; or
4. any wilful or negligent act or omission by you or any third party or any damage caused by you or any third party (other than a subcontractor of Bracey Electrical).  

• TITLE AND RISK

1. 1. 1. We will retain legal and beneficial ownership in the Goods until the money owing by you to us for those Goods and all other amounts owing has been paid in full.
      2. Risk in the Goods will pass from us to you on delivery of the Goods to your premises, and you will bear the risk of any damage to the Goods during installation carried out at your premises (except to the extent the damage has been caused by or contributed to by our negligence. 

• PERSONAL PROPERTY SECURITIES ACT 1999

1. 1. In this clause 10, PPSA means Personal Property Securities Act 1999 and terms that are used in italics have the same meaning as in the PPSA.
   2. You acknowledge and agree that:

1. clause 9.1 creates a security interest and, if applicable, a purchase money security interest, (Security Interest) in all Goods supplied by us to you as security for your obligations to us under this Agreement;
2. we are a secured party in relation to the Goods and are entitled to register our Security Interest;
3. you must promptly sign any document and do anything else required by us to ensure our Security Interest in the Goods is perfected; 
4. if the Goods are processed, included or dealt with in any way causing them become accessions, processed or commingled Goods, our Security Interest will continue in the whole in which they are included;
5. we may allocate all amounts received from you in any manner we determine, including any manner required to preserve any purchase money security interest in the Goods; 
6. you waive your right to receive a verification statement and any rights you may have under sections 114(a), 116, 120(2), 121, 125, 129, 131 and 133 of the PPSA; and
7. you will give us prior written notice of any proposed change of your name or address.

1. You irrevocably authorise us at any time, to enter any premises upon which the Goods are stored to enable us to inspect the Goods and, if you have breached this Agreement or suffers an Insolvency Event, to reclaim possession of the Goods. You agree to indemnify us against any liability to any person in connection with the entry or reclamation.

• LIMITATION OF LIABILITY

1. 1. 1. To the fullest extent permitted by law, Bracey Electrical’s aggregate liability under this Agreement is limited to 50% of the total Rates paid or payable by the Customer in the 12 month period immediately prior to the liability arising. 
      2. To the fullest extent permitted by law, neither Party shall be liable, whether in contract, tort (including negligence), breach of statutory duty or otherwise for any loss of profit, or indirect, consequential or special loss or damage or for any business interruption, whether or not that loss was, or ought to have been, contemplated by the other Party.

• TERMINATION

1. 1. We may terminate this Agreement at any time without cause by giving you not less than seven days’ prior written notice. 
   2. We may terminate this Agreement with immediate effect by giving written notice to you if:

1. you breach a material obligation imposed on you under this Agreement and the breach is not capable of being remedied, or the breach is capable of being remedied and you fail to remedy the breach to our satisfaction within 14 Business Days of receiving notice requiring such breach to be remedied;
2. you suffer an Insolvency Event; or
3. a Force Majeure Event continues for more than seven consecutive days.

1. Upon the expiry or termination of this Agreement (for whatever reason):

1. you shall promptly pay all sums due and owing to us for Services and Goods provided up to and as at the date of termination;
2. each Party shall promptly return all property belonging to the other Party which are in that Party’s possession or control; and
3. all rights granted under this Agreement shall immediately cease, except where they are expressed to survive termination.

1. Termination of this Agreement will not affect any accrued rights or obligations of any of the Parties.

• FORCE MAJEURE

1. 1. 1. We shall not be liable to you, or be deemed to be in breach of this Agreement, as a result of any delay or failure to perform our obligations, other than any payment obligation, due to any event that is beyond our reasonable control which cannot reasonably be avoided or overcome by us and which is not attributable to our actions, including cyber warfare, cyberattacks or ransomware attacks, operation of the forces of nature such as earthquakes, hurricanes, lightning, typhoons or volcanic activity, instances of exceptionally adverse weather, outbreaks of disease, epidemics or quarantine (including COVID-19), or acts of government authority, whether lawful or unlawful (Force Majeure Event).

• CONFIDENTIALITY 

1. 1. 1. You agree to keep confidential any non-public financial, business or commercial information relating to us (in any form) which you may receive or obtain in connection with this Agreement.

• DISPUTES

1. 1. If a dispute arises out of, or in connection with this Agreement the Parties agree to endeavour to resolve such dispute through good faith negotiations before any Party may initiate or commence court or arbitration proceedings relating to such dispute.
   2. Notwithstanding clause 15.1 application may still be made to the courts: 

1. for interlocutory relief;
2. to recover a debt payable; or
3. to enforce a settlement agreed to by the Parties under this clause 14.

• CONSUMER GUARANTEES ACT

1. 1. Where you are “in trade” and acquiring the Services or Goods for the purposes of a “business” (as those terms are defined in the Consumer Guarantees Act 1993 (CGA)), you acknowledge and agree that:

1. the provisions of the CGA will not apply to this Agreement or any  Services or Goods provided by us under this Agreement; and
2. it is fair and reasonable to be bound by this provision. 

1. Where you are a “consumer” and are not acquiring the Services or Goods for the purposes of a “business” (as those terms are defined in the CGA), this Agreement shall be read subject to that Act. 

• NOTICES

1. 1. All notices and other communications to be given under this Agreement must be in writing and be addressed to the Party to whom it is to be left at or sent to the physical address or email address from time to time designated by that Party to the other Party and shall be deemed to be received on the day so left or transmitted by email or on third Business Day after it is so posted.  
   2. Any notice or communication received or deemed received after 5.00pm or on a day which is not a Business Day in the place to which it is delivered, posted or sent will be deemed not to have been received until the next Business Day in that place.

• GENERAL PROVISIONS

1. 1. This Agreement constitutes the entire agreement and understanding of the Parties relating to the matters dealt with in this Agreement and supersedes and extinguishes any previous Agreement or quote (whether oral or written) between the Parties in relation to such matters.  
   2. The Parties acknowledge and agree that Bracey Electrical is and shall at all times remain an independent contractor of the Customer and this Agreement does not create any partnership, agency or employment relationship between them.
   3. You may not assign or transfer, or purport to assign or transfer, any of your rights or obligations under this Agreement.  
   4. We will not be deemed to have waived any right under this Agreement unless the waiver is in writing and signed by us.  
   5. This Agreement may only be amended by mutual agreement of the Parties in writing.  
   6. If any provision of this Agreement is found by a court or other competent authority to be void or unenforceable, such provision will be deemed to be deleted from this Agreement and the remaining provisions of this Agreement will continue in full force and effect.  
   7. The Parties agree that the provisions of clauses 9, 10, 11, 12,  and 14 shall survive the termination or expiry of this Agreement.  
   8. This Agreement will be governed by and construed in accordance with the laws of New Zealand and the Parties submit to the exclusive jurisdiction of the courts of New Zealand.