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Locate Services – Terms and Conditions of Service

Agreement

The following terms and conditions entered into between You and Locate Services (NZ) Limited (LSNZ) for the supply of services, form an agreement (Agreement) between us, and will be incorporated into every agreement between us. To the extent permitted by law. You are deemed to have accepted these terms and conditions when You engage LSNZ to provide its services.

Definitions

Fee means the fee for the Services excluding GST.

Location means the physical location at which LSNZ will provide the Services.

Services means the services provided or to be provided by LSNZ to You as set out in a Scope of Works or as otherwise agreed in writing between You and LSNZ from time to time.

Scope of Works means a description of Services to be provided by LSNZ.

Site means the area at the Location in respect of which the Services will be provided.

You and Your means you as the requestor of the Services.

Fee and Payment

Unless You advise LSNZ prior to the delivery of the Services that full payment of the Fee, any additional charges and GST will be made by a third-party, and You provide written approval from that third party agreeing to pay such amounts to LSNZ’s satisfaction, You agree to pay the Fee and any additional charges including but not limited to:

  1. Travel time to and from the Location originating at LSNZ's nominated place of business, being based on the elapsed time as recorded by LSNZ, or as determined by LSNZ through a third-party service such as Google Maps;
  2. Travel distance (in kilometers) to and from the Location originating at LSNZ' nominated place of business, being based on the distance as recorded by LSNZ, or as determined by LSNZ through a third-party service such as Google Maps, and
  3. Reasonable disbursements or expenses, inclusive of a margin as set by LSNZ of up to 25%, incurred in delivering the Services as defined in the Scope of Works, or as otherwise agreed in writing with You;
  4. Any interim fees for the undertaking of the Services during a calendar month incurred before the complete delivery of the Services;

plus GST to an account specified by LSNZ without deduction or set-off by:

  1. the 14th day as calculated from the date stated on LSNZ's invoice, or
  2. the 20th day of the following month calculated from the date on LSNZ's invoice if You are an authorised account holder with LSNZ, or
  3. such longer period as may be determined and set solely by LSNZ.

You shall pay the Fee, any additional charges and GST irrespective of whether the Services result in the identification and/or location of any underground services, utilities or assets at the Site. Any Fee estimate given in respect of the Services is an estimate only and will not be binding on LSNZ.

Where LSNZ has provided You with a quote in respect of the Fee, the quote will be binding on LSNZ subject to:

  1. an agreement between the parties;
  2. any change You and LSNZ agree to in the Services as set out in the Scope of Works, after the provision of the quote; or
  3. matters outside the reasonable control of LSNZ.

If LSNZ provides a quote in respect of the supply of the Services based on information provided by You in relation to the condition of the Site and any unanticipated issues subsequently arise in respect of the Site involving extra work or materials, then LSNZ may increase its prices accordingly.

Interest and Costs on Overdue Accounts

If You fail to pay any monies owing to LSNZ by the due date, LSNZ at its sole discretion may charge interest on all overdue amounts at a rate of 2% per month calculated on a daily basis until the amount is received in full by LSNZ. LSNZ may also obtain reimbursement from You for any costs or expenses incurred in the recovery of an overdue debt (including legal costs on a full indemnity basis and debt collection agency costs), and may refuse to provide further Services to You. Payments received will be applied firstly against any costs and expenses incurred in recovering an overdue debt from You and then against interest charged on overdue amounts.

Collection and Use of Personal Information

You authorise LSNZ to obtain, retain and use information about You from any third party for the purpose of credit assessment, debt collection and exercising LSNZ’s rights and remedies under this Agreement and You consent to any person providing LSNZ with such information. If You are obtaining LSNZ's Services as an individual, the authorities given by You under this clause are authorities or consents for the purposes of the Privacy Act 2020. You have rights under the Privacy Act 2020 to access and correct Your personal information.

Services

LSNZ will carry out the Services in a competent, responsible, and professional manner, and with a degree of skill, care and diligence that would be reasonably expected of persons offering such services or undertaking similar work of a similar nature to the Services, provided that You agree and acknowledge that:

  1. reliance on the results of the Services is at Your own risk;
  2. subsurface services, utilities or assets if located, are only located to the accuracies defined in the Scope of Works;
  3. where subsurface services, utilities or assets are located, LSNZ provides no guarantee as to the advice given in relation to such, or of the comprehensiveness and accuracy of the Services beyond that specified in the Scope of Works, or the results of the Services;
  4. provision of the Services are subject to events and variables outside LSNZ’s control (including but not limited to congestion and co-location of subsurface services, utilities or assets, environmental factors, obstructions and restrictions whether temporary or permanent, soil type and conditions, weather, and other external interferences);
  5. subsurface services, utilities and assets located by LSNZ as part of the Services should be visually identified by You via non-destructive methods of excavation prior to proceeding with Your activities on Site;
  6. LSNZ reserves the right to delay the provision of any Services in adverse weather conditions. In such instances LSNZ will provide notice to You of the delay and will not be liable to You or any other person for any costs or losses incurred as a result of such delay; and
  7. LSNZ may not detect all or any underground services, utilities or assets.

You warrant that:

  1. LSNZ and its employees, officers, agents and contractors will have full and uninterrupted access to the Site at all relevant times for the purposes of performing the Services;
  2. the provision of Services by LSNZ in respect of the Site will not infringe any third party’s rights; and
  3. the Site complies with all applicable health and safety legislation.

Required Information

Unless otherwise agreed with LSNZ in writing:

  1. the Site must be clearly defined by You, or Your authorised agent, prior to LSNZ commencing work. You or your authorised agent may define the site by providing plans, drawings, maps or images with clear markings showing the site for the scope of works. LSNZ makes best endeavours to interpret and confirm the defined site based with you based on this information you provide. Therefore, you agree to pay LSNZ for work carried out based on the LSNZ representatives understanding of the defined site and scope of works. The marking of the Site may be made with a white marking product such as temporary paint, stakes, or flags that clearly delineate the Site. Notwithstanding anything else in this Agreement, the Site indicated by You or Your authorised agent defines the entire extent of the area in respect of which the Services will be provided at the Location, and takes precedence over any previous plans, specifications or instructions provided by You or Your authorised agent indicating the Site to be surveyed, or as otherwise previously outlined in the Scope of Works;
  2. You authorise LSNZ to obtain any necessary information regarding the recorded or known public underground services, utilities or assets at the Location prior to the agreed start date as set out in the Scope of Works, and for LSNZ to charge a reasonable fee for gathering such information.

You may elect to supply all the necessary information regarding the recorded or known public underground services, utilities or assets at the Location prior to the agreed start date as set out in the Scope of Works, provided that the information supplied by You is as complete and accurate as is reasonably practicable, and is not older than 28 days from the date of issue by the information owner or provider.

LSNZ reserves the right to refuse to provide any Services to You until it receives all of the required information, and to charge You for any direct losses it incurs as a result of any unreasonable delay in the provision of the information You elected to supply. LSNZ will not be liable to You for any costs or losses incurred as a result of such delay.

Emergency Location Services

LSNZ may at its sole discretion provide Services to You on an urgent or emergency basis. In such circumstances. You agree that the terms and conditions of this Agreement apply to the provision of those Services.

If LSNZ waives Your obligation to provide the required information set out in the Required Information clause above. You agree that the entire risk in respect of the Services, the results of any Services and Your reliance on such, lies with You.

Service Exclusions

You agree and acknowledge that LSNZ will not:

  1. undertake manual or vacuum excavation to reveal underground services, utilities or assets beyond a depth of 5 meters;
  2. be required to enter private property in order to complete the Services unless expressly authorised in writing to do so by the owner of the property, or their authorised agent. Authorisation must be obtained by You before LSNZ will access such areas within the Location. Where such access restrictions limit the extent of the Services LSNZ is able to deliver then You will be notified in writing as soon as possible.

No Warranties

To the extent permitted by law, LSNZ does not give any guarantee, warranty or representation of
any sort as to:

  1. the results to be achieved from the Services;
  2. whether any or all underground services, utilities or assets will be located at the Site;
  3. the accuracy of the location of any underground services, utilities or assets beyond that specified in the Scope of Work; and
  4. the Services being provided on the start date or by the end date set out in the Scope of Work.

All warranties, terms, guarantees, representations and conditions that are not expressly set out in this Agreement (including the conditions and warranties under Part 3 of the Contract and

Commercial Law Act 2017) are excluded to the maximum extent permitted by law.

Limitation of Liability

Notwithstanding anything else in this Agreement, to the maximum extent permitted by law, LSNZ will be under no liability whatsoever to You for any losses, damages, liabilities, penalties, fines or costs whatsoever, including but not limited to any indirect or consequential loss, loss of profit, loss of bargain, loss of business opportunity, personal injuries, exemplary damages or losses, suffered by You or any third party arising out of or flowing from any breach of contract, any pre-contractual misrepresentation, prohibition or restriction on LSNZ by third parties to the Site, or other dispute arising out of this Agreement and whether actionable in contract, tort, equity, statute or otherwise.

To avoid doubt, in addition to the above, to the maximum extent permitted by law, LSNZ shall not be liable for any losses, damages, liabilities, penalties, fines or costs suffered by You or any third party in respect of any unsatisfactory outcome of the Services that are beyond the reasonable control of LSNZ, any disturbances or delays due to weather, disruption to the Site, services, assets, utilities, or of any assessment by You or any third party of advice given as part of the Services, or in respect of any decisions or omissions made by You based on such advice.

If LSNZ is found liable for any loss or damage (including that set out above), LSNZ's maximum liability (whether actionable in contract, tort, equity, statute or otherwise) shall not exceed the lesser of:

  1. an amount equal to five times the Fee for the Services to which the liability relates; and
  2. $5,000.

Indemnity

You shall indemnify LSNZ against all liabilities, costs (including legal costs on a full indemnity basis), losses, claims, expenses and demands incurred by LSNZ or any third party arising out of or incidental to the Services and this Agreement, including but not limited to any third party claims arising out of or incidental to the Services.

Exclusion of Legislation

If You are acquiring the Services in trade, then for the purposes of section 5D of the Fair Trading Act 1986 (FTA) and section 43 of the Consumer Guarantees Act 1993 (CGA), the parties acknowledge and agree that, to the maximum extent permitted by law:

  1. the Services are being provided and acquired in trade;
  2. in respect of all matters covered by this Agreement, the parties are contracting out of the CGA and sections 9, 12A and 13 of the FTA; and
  3. it is fair and reasonable for the parties to be bound by this clause.

Intellectual Property

You acknowledge that LSNZ owns or has the right to use the intellectual property rights in all equipment, materials, methods, processes, know-how, technical information, designs, products, systems, copyright works, and any other intellectual property used by LSNZ in the provision of its Services. Any new intellectual property which is created as a result of, or in connection with, the provision of the Services will be owned by LSNZ. You obtain no rights and/or interests in such intellectual property and agree not to cause or permit anything that may damage or endanger the intellectual property of LSNZ or LSNZ's title or authority to use (as applicable) such intellectual property.

Confidentiality

All intellectual property and other information belonging to LSNZ which by its nature is intended to be treated as confidential will be confidential information for the purposes of this Agreement and You shall not disclose any confidential information to any third party.

Force Majeure

No failure or omission by LSNZ to carry out or observe any of the terms of this Agreement will give rise to any claim against LSNZ, or be deemed a breach of this Agreement, if such failure or omission arises from any cause reasonably beyond the control of LSNZ.

Re-schedule or Cancellation of Scope of Works

LSNZ may in its sole discretion re-schedule or otherwise cancel a particular Scope of Works by providing notice to You and shall not be liable in respect of any loss incurred by You or a third party as a result of such.

You may re-schedule or otherwise cancel a specific Scope of Works by providing notice to LSNZ at least two (2) working days prior to the commencement of those Services. If You provide less than two (2) working days’ notice to re-schedule or cancel a Scope of Works, LSNZ may charge a penalty of thirty three percent (33%) of the estimated Service Fee. LSNZ may waive this penalty in instances where it determines that the re-scheduling or cancellation is for reasons beyond Your reasonable control.

Termination of Agreement

Either party may terminate this Agreement (including any remaining Scope of Works) for any reason by providing 30 days written notice to the other. Notwithstanding such, if You fail to pay any monies owing on the due date for payment or otherwise breach this Agreement, LSNZ may (without prejudice to any other remedies available to it) suspend or terminate this Agreement immediately and all outstanding monies owing under this Agreement to LSNZ will immediately fall due and payable.

Notices

Every notice given under this Agreement will be sufficiently given if delivered personally, posted or successfully transmitted by email to the intended recipient at his/her or its last known address or email address. You will notify LSNZ in writing of any change to Your postal, physical or email addresses.

Dispute Resolution

In the event of any dispute between the parties in relation to this Agreement, the parties shall first seek to resolve such dispute by giving notice in writing to the other party and co-operatively endeavouring to resolve the dispute. If the dispute remains unresolved within 21 days of the dispute arising, the parties shall first seek a resolution through the use of mediation before pursuing resolution through the Courts (unless urgent interlocutory relief is sought). The mediator will be appointed by the parties or, failing agreement within seven days, the President for the time being of the New Zealand Law Society. The costs of the mediator will be shared equally by the parties.

Miscellaneous

You agree and acknowledge that:

  1. This Agreement is to be governed by the laws of New Zealand.
  2. You will not assign or otherwise transfer or encumber Your rights or obligations under this Agreement except with the prior written consent of LSNZ. LSNZ may assign or otherwise transfer or encumber its rights or obligations under this Agreement without Your prior written consent.
  3. LSNZ may from time to time and in its sole discretion subcontract the provision of all or any of the Services under this Agreement to a third party.
  4. No delay, neglect or forbearance by LSNZ in enforcing any provision of this Agreement will be a waiver unless it expressly states such.
  5. Termination of this Agreement for any reason will not affect such rights and obligations of the parties as are intended to survive termination.
  6. This Agreement can change at any time at LSNZ's discretion. The amended Agreement will be posted on LSNZ's website, and Your continued use of LSNZ Services will be deemed acceptance of the changes.
  7. This Agreement does not create any relationship of partnership, agency, employment or joint venture between You and LSNZ.
  8. If any provision of this Agreement is found to be illegal, invalid or unenforceable, that provision shall be read down to the extent necessary and reasonable in all circumstances to give it valid operation. If it cannot be read down, that provision will be void and severable and the remaining provisions will not in any way be affected or impaired.
  9. This Agreement including the Scope of Works and attached documentation constitute the sole understanding of the parties and supersede all prior understandings, written or oral, which will be of no further force or effect.