The Joiner Shop Kaikoura Limited – Terms & Conditions of Trade
1.1 “Contract” means the terms and conditions contained herein, together with any quotation, order, invoice or other document or amendments expressed to be supplemental to this Contract.
1.2 “Cookies” means small files which are stored on a user’s computer. They are designed to hold a modest amount of data (including Personal Information) specific to a particular client and website and can be accessed either by the web server or the client’s computer. If the Customer does not wish to allow Cookies to operate in the background when using the Supplier’s website, then the Customer shall have the right to enable / disable the Cookies first by selecting the option to enable / disable provided on the website, prior to making enquiries via the website.
1.3 “Customer” means the person/s, entities or any person acting on behalf of and with the authority of the Customer requesting the Supplier to provide the Works (Equipment for hire) as specified in any proposal, quotation, order, invoice, or other documentation, and:
(a) if there is more than one Customer, is a reference to each Customer jointly and severally; and
(b) if the Customer is a partnership, it shall bind each partner jointly and severally; and
(c) if the Customer is a part of a Trust, shall be bound in their capacity as a trustee; and
(d) includes the Customer’s executors, administrators, successors and permitted assigns.
1.4 “Equipment” means all Equipment including any accessories supplied on hire by the Supplier to the Customer (and where the context so permits shall include any supply of Works). The Equipment shall be as described on the invoices, quotation, authority to hire, or any other work authorisation form provided by the Supplier to the Customer.
1.5 “Intended Use” means a product and the use thereof, for which the product is intended to be, or is reasonably likely to be, associated with the Works.
1.6 “Non-Conforming Building Product” means building products that are regarded as Non-Conforming for an Intended Use if, when associated with a building:
(a) the product is not, or will not be, safe; or
(b) does not, or will not, comply with the relevant regulatory provisions; or
(c) the product does not perform, or is not capable of performing, for the use to the standard it is represented to conform by or for a person in the chain of responsibility for the product.
1.7 “Price” means the Price payable (plus any Goods and Services Tax (“GST”) where applicable) for the Works and/or Equipment a hire agreed between the Supplier and the Customer in accordance with clause 6 below.
1.8 “Supplier” means The Joiner Shop Kaikoura Limited, its successors and assigns.
1.9 “Worksite” means the address nominated by the Customer to which the Materials are to be supplied by the Supplier and/or where the Equipment is to be located.
1.10 “Works” means all Works (including consultation, manufacturing and/or installation services) or Materials supplied by the Supplier to the Customer at the Customer’s request from time to time (where the context so permits the terms ‘Works’ or ‘Materials’ shall be interchangeable for the other).
2.1 The Customer is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Customer places an order for or accepts delivery of any Works/Equipment.
2.2 In the event of any inconsistency between the terms and conditions of this Contract and any other prior document or schedule that the parties have entered into, the terms of this Contract shall prevail.
2.3 Any amendment to the terms and conditions contained in this Contract may only be amended in writing by the consent of both parties.
2.4 The Customer acknowledges and accepts that:
(a) that the supply of Works on credit shall not take effect until the Customer has completed a credit application with the Supplier and it has been approved with a credit limit established for the account;
(b) in the event that the supply of Works requested exceeds the Customer’s credit limit and/or the account exceeds the payment terms, the Supplier reserves the right to refuse delivery; and
(c) the supply of Materials for accepted orders may be subject to availability and if, for any reason, Materials are not or cease to be available, the Supplier reserves the right to vary the Price with alternative Materials as per clause 6.2, subject to prior confirmation and agreement of both parties. The Supplier also reserves the right to halt all Works until such time as the Supplier and the Customer agree to such changes. The Supplier shall not be liable to the Customer for any loss or damage the Customer suffers due to the Supplier exercising its rights under this clause.
2.5 In the event that the Supplier is required to provide the Works urgently, that may require the Supplier’s staff to work outside normal business hours (including, but not limited to, working through lunch breaks, weekends and/or public holidays) then the Supplier reserves the right to charge the Customer additional labour costs (penalty rates will apply), unless otherwise agreed between the Supplier and the Customer.
2.6 Any advice, recommendation, information, assistance, or service provided by the Supplier in relation to Materials or Works supplied is given in good faith to the Customer, or the Customer’s agent and is based on the Supplier’s own knowledge and experience and shall be accepted without liability on the part of the Supplier. Where such advice or recommendations are not acted upon then the Supplier shall require the Customer or their agent to authorise commencement of the Works in writing. The Supplier shall not be liable in any way whatsoever for any damages or losses that occur after any subsequent commencement of the Works.
2.7 Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 226 of the Contract and Commercial Law Act 2017 or any other applicable provisions of that Act or any Regulations referred to in that Act.
- Authorised Representatives
3.1 Unless otherwise limited as per clause 3.2, the Customer agrees that should the Customer introduce any third party to the Supplier as the Customer’s duly authorised representative, that once introduced that person shall have the full authority of the Customer to order any Works and/or Materials to request any variation thereto, on the Customer’s behalf, and such authority to continue until all requested Works have been completed or the Customer otherwise notifies the Supplier in writing that said person is no longer the Customer’s duly authorised representative.
3.2 In the event that the Customer’s duly authorised representative, as per clause 3.1, is to have only limited authority to act on the Customer’s behalf, then the Customer must specifically and clearly advise the Supplier in writing of the parameters of the limited authority granted to their representative.
3.3 The Customer specifically acknowledges and accepts that they will be solely liable to the Supplier for all additional costs incurred by the Supplier (including the Supplier’s profit margin) in providing any Works and/or Materials variation/s thereto, requested by the Customer’s duly authorised representative (subject always to the limitations imposed under clause 3.2 (if any)).
- Errors and Omissions
4.1 The Customer acknowledges and accepts that the Supplier shall, without prejudice, accept no liability in respect of any alleged or actual error(s) and/or omission(s):
(a) resulting from an inadvertent mistake made by the Supplier in the formation and/or administration of this Contract; and/or
(b) contained in/omitted from any literature (hard copy and/or electronic) supplied by the Supplier in respect of the Works.
4.2 In the event such an error and/or omission occurs in accordance with clause 4.1, and is not attributable to the negligence and/or wilful misconduct of the Supplier; the Customer shall not be entitled to treat this Contract as repudiated nor render it invalid.
- Change in Control
5.1 The Customer shall give the Supplier not less than fourteen (14) days prior written notice of any proposed change of ownership of the Customer and/or any other change in the Customer’s details (including but not limited to, changes in the Customer’s name, address, contact phone or fax number/s, change of trustees, or business practice). The Customer shall be liable for any loss incurred by the Supplier as a result of the Customer’s failure to comply with this clause.
- Price and Payment
6.1 At the Supplier’s sole discretion, the Price shall be either:
(a) as indicated on invoices provided by the Supplier to the Customer in respect of Works performed or Materials/Equipment supplied; or
(b) the Supplier’s quoted Price (subject to clause 6.2) which shall be binding upon the Supplier provided that the Customer shall accept the Supplier’s quotation in writing within thirty (30) days.
6.2 The Supplier reserves the right to change the Price:
(a) if a variation to the Materials which are to be supplied is requested; or
(b) if a variation to the Works/Equipment originally scheduled (including any applicable plans or specifications) is requested; or
(c) where additional Works are required due to the discovery of hidden or unidentifiable difficulties (including, but not limited to, poor weather, limitations to accessing the Worksite, obscured building/Worksite defects, as a result of delays from third party suppliers, incorrect measurements, plans and/or specifications provided by the Customer, availability of machinery, change of design or paint colour selection, safety considerations (discovery of asbestos, etc.), prerequisite work by any third party not being completed, hard rock barriers below the surface, or hidden pipes and wiring in walls, etc.) which are only discovered on commencement of the Works; or
(d) in the event of increases to the Supplier in the cost of labour or Materials which are beyond the Supplier’s control.
6.3 Variations will be charged for on the basis of the Supplier’s quotation, and will be detailed in writing, and shown as variations on the Supplier’s invoice. The Customer shall be required to respond to any variation submitted by the Supplier within ten (10) working days. Failure to do so will entitle the Supplier to add the cost of the variation to the Price. Payment for all variations must be made in full at the time of their completion.
6.4 At the Supplier’s sole discretion, a deposit may be required.
6.5 Time for payment for the Works/Equipment being of the essence, the Price will be payable by the Customer on the date/s determined by the Supplier, which may be:
(a) on or before delivery of the Materials/Equipment; or
(b) on completion of the Works; or
(c) by way of progress payments in accordance with the Supplier’s specified progress payment schedule. Such progress payment claims may include the reasonable value of authorised variations and the value of any Materials delivered to the Worksite but not yet installed;
(d) the date specified on any invoice or other form as being the date for payment; or
(e) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Customer by the Supplier.
6.6 At the agreement of both parties, payment of the Price may be subject to retention by the Customer of an amount (hereafter called the “Retention Money”), being a set amount or equal to a percentage of the Price. The Customer shall hold the Retention Money for the agreed period following completion of the Works during which time all Works are to be completed and/or all defects are to be remedied. Any Retention Money applicable to this Contract is to be dealt with in accordance with Subpart 2A – section 18(a) to 18(i) of the Construction Contracts Amendment Act 2015 and as such no Retention Money shall be used other than to remedy defects in the performance of the Supplier’s obligations under the Contract.
6.7 Payment may be made by electronic/on-line banking, credit card (a surcharge may apply per transaction), or by any other method as agreed to between the Customer and the Supplier.
6.8 The Supplier may in its discretion allocate any payment received from the Customer towards any invoice that the Supplier determines and may do so at the time of receipt or at any time afterwards. On any default by the Customer the Supplier may re-allocate any payments previously received and allocated. In the absence of any payment allocation by the Supplier, payment will be deemed to be allocated in such manner as preserves the maximum value of the Supplier’s Purchase Money Security Interest (as defined in the PPSA) in the Materials.
6.9 The Customer shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Customer by the Supplier nor to withhold payment of any invoice because part of that invoice is in dispute unless the request for payment by the Supplier is a claim made under the Construction Contracts Act 2002 Nothing in this clause 6.9 prevents the Customer from the ability to dispute any invoice.
6.10 Unless otherwise stated the Price does not include GST. In addition to the Price, the Customer must pay to the Supplier an amount equal to any GST the Supplier must pay for any supply of Works/Equipment by the Supplier under this or any other agreement. The Customer must
pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Customer pays the Price. In addition, the Customer must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.
- Provision of the Works
7.1 Subject to clause 7.2 it is the Supplier’s responsibility to ensure that the Works start as soon as it is reasonably possible.
7.2 The Works’ commencement date will be put back and/or the completion date extended by whatever time is reasonable in the event that the Supplier claims an extension of time (by giving the Customer written notice) where completion is delayed by an event beyond the Supplier’s control, including but not limited to any failure by the Customer to:
(a) make a selection; or
(b) have the Worksite ready for the Works; or
(c) notify the Supplier that the Worksite is ready.
7.3 Delivery Materials/Equipment is taken to occur at the time that:
(a) the Customer or the Customer’s nominated carrier takes possession of the Materials/Equipment at the Supplier’s address; or
(b) the Supplier (or the Supplier’s nominated carrier) delivers the Materials/Equipment to the Customer’s nominated address even if the Customer is not present at the address.
7.4 At the Supplier’s sole discretion, the cost of delivery is in addition to the Price.
7.5 The Supplier may deliver the Works/Equipment by separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.
7.6 Any time specified by the Supplier for delivery of the Works/Equipment is an estimate only and the Supplier will not be liable for any loss or damage incurred by the Customer as a result of delivery being late. However, both parties agree that they shall make every endeavour to enable the Works/Equipment to be supplied at the time and place as was arranged between both parties. In the event that the Supplier is unable to supply the Works/Equipment as agreed solely due to any action or inaction of the Customer, then the Supplier shall be entitled to charge a reasonable fee for re-supplying the Works/Equipment at a later time and date, and/or for storage of the Equipment/Materials.
- Dimensions, Plans and Specifications
8.1 The Customer acknowledges that:
(a) all descriptive specifications, illustrations, drawings, data dimensions, and weights stated in the Supplier’s or manufacturer’s fact sheets, price lists or advertising material are indicative only and that they have not relied on such information;
(b) while the Supplier may have provided information or figures to the Customer regarding the performance of the Materials, the Customer acknowledges that the Supplier has given these in good faith, and are estimates based on industry prescribed estimates;
(c) the Supplier shall be entitled to rely on the accuracy of any plans, specifications and other information provided by the Customer. The Customer acknowledges and agrees that in the event that any of this information provided by the Customer is inaccurate, the Supplier accepts no responsibility for any loss, damages, or costs however resulting from these inaccurate plans, specifications or other information:
(i) the Supplier is entitled to suspend or terminate the supply of Materials or Works to the Customer if there is a material change to the scope of work as a result of inaccurate plans, specifications or other information; and
(ii) the Customer shall be liable for the Supplier’s costs of any equipment or staff to or from the Worksite, upon the re-commencement of the Works at the Worksite, if applicable.
8.2 All customary building industry tolerances shall apply to the dimensions and measurements of the Works unless the Supplier and the Customer agree otherwise in writing.
8.3 Where the Customer is to supply the Supplier with any design specifications (including, but not limited to CAD drawings) the Customer shall be responsible for providing accurate data. The Supplier shall not be liable whatsoever for any errors in the Works that are caused by incorrect or inaccurate data being supplied by the Customer.
8.4 In the event the Customer gives information relating to measurements and quantities of Materials required in completing the Works, it is the Customer’s responsibility to verify the accuracy of the measurements and quantities before the Customer or the Supplier places an order based on these measurements and quantities. The Supplier accepts no responsibility for any loss, damages, or costs however resulting from the Customer’s failure to comply with this clause.
9.1 If the Supplier retains ownership of the Materials under clause 15 then:
(a) where the Supplier is supplying Materials only, all risk for the Materials shall immediately pass to the Customer on delivery and the Customer must insure the Materials on or before delivery; and
(b) unless otherwise agreed, where the Supplier is to both supply and install Materials then the Supplier shall maintain a Contract works insurance policy until the Works are completed. Upon completion of the Works all risk for the Works shall immediately pass to the Customer.
9.2 Notwithstanding the provisions of clause 9.1 if the Customer specifically requests the Supplier to leave Materials outside the Supplier’s premises for collection or to deliver the Materials to an unattended location then such Materials shall always be left at sole risk of the Customer and it shall be the Customer’s responsibility to ensure the Materials are insured adequately or at all. In the event that such Materials are lost, damaged or destroyed then replacement of the Materials shall be at the Customer’s expense.
9.3 The Customer warrants that any structures to which the Materials are to be affixed are able to withstand the installation thereof and are of suitable capacity to handle the Materials once installed. If for any reason that the Supplier, or the Supplier’s employees, reasonably form the opinion that the Customer’s premises is not safe for the Works to proceed then the Supplier shall be entitled to delay the provision of the Works (in accordance with clause 7.2) until the Supplier is satisfied that it is safe for the installation to proceed.
9.4 The Customer acknowledges and accepts that:
(a) the Supplier will make every effort to match sales samples to the finished Materials the Supplier accepts no liability whatsoever where such samples differ to the finished Materials supplied;
(b) Materials supplied (including, but not limited to, timber, steel, glass, aluminium etc.) may:
(i) exhibit variations in shade, colour, texture, surface, finish, markings, veining, and contain natural fissures, occlusions, and indentations;
(ii) fade or change colour over time;
(iii) expand, contract, or distort as a result of exposure to heat, cold, weather;
(iv) mark or stain if exposed to certain substances; and
(v) be damaged or disfigured by impact or scratching.
(c) the Supplier is only responsible for parts that are replaced by the Supplier and that in the event that other parts/materials, subsequently fail, the Customer agrees to indemnify the Supplier against any loss or damage to the Materials, or caused by the Materials, or any part thereof howsoever arising; and
(d) where an anodised surface finish has been selected, slight colour variation may occur between the main unit frame and any installation trims used due to the difference in aluminium alloys available and manufacturing standards and tolerances shall not deemed to be a defect in the Materials.
9.5 If the Customer instructs the Supplier to rectify any damage caused by any other tradesman, this will become a variation to the original quotation and will be charged at the Supplier’s normal hourly rate.
9.6 The Customer acknowledges and accepts that:
(a) the alignment of cabinetry joinery doors and carcasses may be affected by movement of homes or buildings;
(b) the polish finish of the Materials may be affected by environmental factors (including, but not limited to, humidity, weather, extreme heat etc.). Although the Supplier will employ all possible measures to obtain a high-quality finish, the Supplier shall not be liable for any change in finish which is due to environmental factors;
(c) it shall be the Customer’s responsibility to ensure that prior to the commencement of the Works that any existing kitchen cabinetry is removed; and
(d) where the Supplier is not required to install the Materials, the Customer warrants that the Materials will only be installed by a suitably qualified tradesperson. The Supplier shall not be liable for any claims, demands, losses, damages, costs, and expenses howsoever caused or arising in connection with the installation and work incidental thereto.
Glass and Glazing
9.7 The Customer acknowledges and accepts that:
(a) whilst every care shall be taken by the Supplier, any damage to the surrounding area or breakage to the Customer’s existing glass or tiles, damage to existing paintwork during the Works by the Supplier shall be at the Customer’s own risk; and
(b) holes, cut outs and cutting of the Materials may weaken the strength of the Materials and although it’s unlikely, cracking may occur. The Supplier accepts no responsibility against cracks occurring after such Materials (that are subject to holes and cut outs) are installed unless a toughened glass is used.
Garage Door Installation
9.8 The Customer acknowledges and accepts that:
(a) all raw products are required to be painted, stained, or fully sealed immediately after installation. The Customer shall not hold the Supplier responsible for the finished state of the products if the Customer fails to finish the raw products immediately or if at all, nor if the Customer fails to apply materials to paint or stain, or seal the doors without following the instructions applicable to such materials or the suitability of those materials for the purpose required; and
(b) where the Supplier has performed temporary repairs that:
(i) the Supplier offers no guarantee against the reoccurrence of the initial fault, or any further damage caused; and
(ii) the Supplier will immediately advise the Customer of the fault and shall provide the Customer with an estimate for the full repair required.
9.9 The Customer acknowledges and agrees that:
(a) the Supplier does not warrant that the Materials supplied by the Supplier will render the premises, or any occupant of the premises, secure. the Supplier shall not be liable for any loss (including consequential loss) or damage suffered by the Customer, whether arising from the Supplier’s negligence or otherwise, resulting from the Customer’s use of or reliance upon the Materials;
(b) the Supplier shall not be held liable for any damage to any glass surfaces as a result of installing Materials and/or in the provision of the Works;
(c) where the Customer has engaged in the Supplier for the purposes of gaining access/entry to a property/vehicle as a result a lock out, that:
(i) the Supplier is not acting in an unlawful and fraudulent manner and is not deemed to be a break-in;
(ii) the Works will not infringe on the right of other person’s or the property’s security; and
(iii) the Supplier will not be liable for any costs, damages, losses and claims as a result of any damage to the property/vehicle in the provision of Works.
9.10 The Customer shall, at their own expense, maintain the Materials in good working order and in accordance with the manufacturer’s requirements, including, but not limited to, recharging or replacing the batteries on a timely basis.
9.11 In the event that the Customer is unable to use the locks that are supplied, installed, serviced, or remedied by the Supplier, for any reason, then the Supplier shall not be liable for any loss, damages, or costs however arising, unless due to the negligence of the Supplier.
- Customer’s Responsibilities
10.1 It is the intention of the Supplier and agreed by the Customer that the Customer:
(a) shall ensure that the Supplier has clear and free access to the Worksite at all times to enable them to undertake the Works (including carrying out Worksite inspections, gain signatures for required documents, and for the delivery and installation of the Materials). The Supplier shall not be liable for any loss or damage to the Worksite (including, without limitation, damage to pathways, driveways and concreted or paved or grassed areas) unless due to the negligence of the Supplier;
(b) shall ensure that access is suitable to accept the weight of laden trucks, trailers, equipment and personnel as may be deemed necessary by the Supplier;
(c) is to be present at the Worksite when and as reasonably requested by the Supplier and its employees, contractors and/or agents;
(d) shall remove (or provide adequate dustsheets to protect the Customer’s) furniture, furnishings, or personal goods from the vicinity of the Works and agrees that the Supplier shall not be liable for any damage attributed to dust or damage caused by any sanding process through the Customer’s failure to comply with this clause and may incur an extra charge if the installation area requires the Supplier to move obstacles from within the Worksite. Flaking or crumbing walls should be temporarily covered by the Customer, until the coatings are dry;
(e) shall ensure that full and final lighting as designed for the completed project is fully operational prior to sanding Works commencing and are made available for use at no cost for the duration of the project. Any costs incurred by the Supplier will be invoiced to the Customer should this requirement not be met; and
(f) is to provide the Supplier, while at the Worksite, with adequate access to available water, toilet and washing facilities.
10.2 Where the Supplier requires that Materials, tools etc. required for the Works be stored at the Worksite, the Customer shall supply the Supplier a safe area for storage and shall take all reasonable efforts to protect all items from destruction, theft, or damage. In the event that any of the stored items are destroyed, stolen or damaged, then the cost of repair or replacement shall be the Customer’s responsibility.
- Surplus Materials
11.1 Unless otherwise stated elsewhere in this Contract:
(a) only suitable new Materials will be used;
(b) demolished Materials remain the Customer’s property, and it is the responsibility of the Customer to dispose of such as per clause 12.1; and
(c) Materials that the Supplier brings to the Worksite which are surplus remain the property of the Supplier.
- Worksite Access and Condition
12.1 The Supplier is not responsible for the removal of rubbish from or clean-up of the building/construction Worksite/s. All rubbish generated by the Supplier will be placed in a designated area appointed by the Customer but the responsibility of removal of same is the Customer or the Customer’s agent, unless otherwise agreed.
12.2 Worksite Inductions
(a) in the event the Customer requires an employee or sub-contractor of the Supplier to undertake a Worksite induction during working hours, the Customer will be liable to pay the hourly charges for that period. If any induction needs to be undertaken prior to the commencement date then the Customer shall be liable to pay the Supplier’s standard (and/or overtime, if applicable) hourly labour rate; or
(b) where the Supplier is in control of the Worksite, the Customer and/or the Customer’s third-party contractors must initially carry out the Supplier’s Health & Safety induction course before access to the Worksite will be granted. Inspection of the Worksite during the course of the Works will be by appointment only and unless otherwise agreed, in such an event the Customer and/or third party acting on behalf of the Customer must at all times be accompanied by the Supplier.
- Underground Locations
13.1 Prior to the Supplier commencing any work the Customer must advise the Supplier of the precise location of all underground services on the Worksite and clearly mark the same. The underground mains and services the Customer must identify include, but are not limited to, electrical services, gas services, sewer services, pumping services, sewer connections, sewer sludge mains, water mains, irrigation pipes, telephone cables, fibre optic cables, oil pumping mains, and any other services that may be on the Worksite.
13.2 Whilst the Supplier will take all care to avoid damage to any underground services the Customer agrees to indemnify the Supplier in respect of all and any liability claims, loss, damage, costs and fines as a result of damage to services not precisely located and notified as per clause
- Compliance with Laws
14.1 The Customer and the Supplier shall comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities that may be applicable to the Works, including any WorkSafe health and safety laws relating or any other relevant safety standards or legislation pertaining to the Works.
14.2 Both parties acknowledge and agree:
(a) to comply with the Building Act 2004 (including any subsequent Amendments) and Code of Ethics, in respect of all workmanship and building products to be supplied during the course of the Works; and
(b) that Works will be provided in accordance with any current relevant Australian/New Zealand Standards applicable.
14.3 Where the Customer has supplied products for the Supplier to complete the Works, the Customer acknowledges that it accepts responsibility for the suitability of purpose and use for their products and the Intended Use and any faults inherent in those products. However, if in the Supplier’s opinion, it is believed that the materials supplied are Non-Conforming products and will not conform with New Zealand regulations, then the Supplier shall be entitled, without prejudice, to halt the Works until the appropriate conforming products are sourced and all costs associated with such a change to the plans and design will be invoiced in accordance with clause 6.2.
14.4 The Customer shall obtain (at the expense of the Customer) all licenses and approvals that may be required for the Works.
14.5 Notwithstanding clause 14.1 and pursuant to the Health & Safety at Work Act 2015 (the “HSW Act”), the Supplier agrees at all times to comply with sections 28 and 34 of the “HSW Act” with meeting their obligations for health and safety laws in the workplace regardless of whether they may be the party in control of the Worksite or where they may be acting as a sub-contractor for the Customer who has engaged a third party head contractor.
- Title to Materials
15.1 The Supplier and the Customer agree that ownership of the Materials shall not pass until:
(a) the Customer has paid the Supplier all amounts owing to the Supplier; and
(b) the Customer has met all of its other obligations to the Supplier.
15.2 Receipt by the Supplier of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised.
15.3 It is further agreed that:
(a) until ownership of the Materials passes to the Customer in accordance with clause 15.1 that the Customer is only a bailee of the Materials and unless the Materials have become fixtures must return the Materials to the Supplier on request;
(b) the Customer holds the benefit of the Customer’s insurance of the Materials on trust for the Supplier and must pay to the Supplier the proceeds of any insurance in the event of the Materials being lost, damaged or destroyed;
(c) the production of these terms and conditions by the Supplier shall be sufficient evidence of the Supplier’s rights to receive the insurance proceeds direct from the insurer without the need for any person dealing with the Supplier to make further enquiries;
(d) the Customer must not sell, dispose, or otherwise part with possession of the Materials other than in the ordinary course of business and for market value. If the Customer sells, disposes or parts with possession of the Materials then the Customer must hold the proceeds of any such act on trust for the Supplier and must pay or deliver the proceeds to the Supplier on demand;
(e) the Customer should not convert or process the Materials or intermix them with other goods but if the Customer does so then the Customer holds the resulting product on trust for the benefit of the Supplier and must sell, dispose of or return the resulting product to the Supplier as it so directs;
(f) unless the Materials have become fixtures the Customer irrevocably authorises the Supplier to enter any premises where the Supplier believes the Materials are kept and recover possession of the Materials;
(g) the Supplier may recover possession of any Materials in transit whether or not delivery has occurred;
(h) the Customer shall not charge or grant an encumbrance over the Materials nor grant nor otherwise give away any interest in the Materials while they remain the property of the Supplier; and
(i) the Supplier may commence proceedings to recover the Price of the Materials sold notwithstanding that ownership of the Materials has not passed to the Customer.
- Personal Property Securities Act 1999 (“PPSA”)
16.1 Upon assenting to these terms and conditions in writing the Customer acknowledges and agrees that:
(a) these terms and conditions constitute a security agreement for the purposes of the PPSA; and
(b) a security interest is taken in all Materials/Equipment that have previously been supplied and that will be supplied in the future by the Supplier to the Customer, and the proceeds from such Materials/Equipment as listed by the Supplier to the Customer in invoices rendered from time to time.
16.2 The Customer undertakes to:
(a) sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which the Supplier may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register;
(b) indemnify, and upon demand reimburse, the Supplier for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register or releasing any Materials/Equipment charged thereby;
(c) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Materials/Equipment or the proceeds of such Materials/Equipment in favour of a third party without the prior written consent of the Supplier; and
(d) immediately advise the Supplier of any material change in its business practices of selling Materials which would result in a change in the nature of proceeds derived from such sales.
16.3 The Supplier and the Customer agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms and conditions.
16.4 The Customer waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, and 131 of the PPSA.
16.5 Unless otherwise agreed to in writing by the Supplier, the Customer waives its right to receive a verification statement in accordance with section 148 of the PPSA.
16.6 The Customer shall unconditionally ratify any actions taken by the Supplier under clauses 16.1 to 16.5.
16.7 Subject to any express provisions to the contrary (including those contained in this clause 16), nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.
- Security and Charge
17.1 In consideration of the Supplier agreeing to supply the Works/Equipment, the Customer charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Customer either now or in the future, and the Customer grants a security interest in all of its present and after-acquired property, to secure the performance by the Customer of its obligations under these terms and conditions (including, but not limited to, the payment of any money). The terms of the charge and security interest are the terms of Memorandum 2018/4344 registered pursuant to s.209 of the Land Transfer Act 2017.
17.2 The Customer indemnifies the Supplier from and against all the Supplier’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising the Supplier’s rights under this clause.
17.3 The Customer irrevocably appoints the Supplier and each director of the Supplier as the Customer’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 17 including, but not limited to, signing any document on the Customer’s behalf.
18.1 The Customer shall inspect the Materials/Equipment on delivery and shall within twenty-four (24) hours of delivery (time being of the essence) notify the Supplier of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Customer shall afford the Supplier an opportunity to inspect the Materials/Equipment within a reasonable time following delivery if the Customer believes the Materials/Equipment is defective in any way. If the Customer shall fail to comply with these provisions the
Materials/Equipment shall be presumed to be free from any defect or damage. For defective Materials/Equipment, which the Supplier has agreed in writing that the Customer is entitled to reject, the Supplier’s liability is limited to either (at the Supplier’s discretion) replacing the Materials/Equipment or repairing the Materials/Equipment. 18.2 Materials/Equipment will not be accepted for return for any reason other than those specified in clause 18.1 above (or in the case of Equipment hire, normal termination of Equipment hire in accordance with the full terms and conditions herein).
19.1 Subject to the conditions of warranty set out in clause 19.2 the Supplier warrants that if any defect in any workmanship provided by the Supplier becomes apparent and is reported to the Supplier within three (3) months of the date of delivery (time being of the essence) then the Supplier will either (at the Supplier’s sole discretion) replace or remedy the defect.
19.2 The conditions applicable to the warranty given by clause 19.1 are:
(a) the warranty shall not cover any defect or damage which may be caused or partly caused by or arise through:
(i) failure on the part of the Customer to properly maintain any Materials or Serviced item; or
(ii) failure on the part of the Customer to follow any instructions or guidelines provided by the Supplier; or
(iii) any use of any Materials or Serviced item otherwise than for any application specified on a quote or order form; or
(iv) the continued use of any Materials or Serviced item after any defect becomes apparent or would have become apparent to a reasonably prudent operator or user; or
(v) timber performance; or
(vi) fair wear and tear, any accident or act of God.
(b) the warranty shall cease, and the Supplier shall thereafter in no circumstances be liable under the terms of the warranty if the workmanship is repaired, altered, or overhauled without the Supplier’s consent.
(c) in respect of all claims the Supplier shall not be liable to compensate the Customer for any delay in either replacing or remedying the defective Materials or Serviced item or in properly assessing the Customer’s claim.
19.3 For Materials not manufactured by the Supplier, the warranty shall be the current warranty provided by the manufacturer of the Materials.
The Supplier shall not be bound by nor be responsible for any term, condition, representation, or warranty other than that which is given by the manufacturer of the Materials.
19.4 In the case of second-hand Materials, the Customer acknowledges that full opportunity to inspect the same has been provided and accepts the same with all faults and that no warranty is given by the Supplier as to the quality or suitability for any purpose and any implied warranty, statutory or otherwise, is expressly excluded. The Supplier shall not be responsible for any loss or damage to the Materials, or caused by the Materials, or any part thereof however arising.
19.5 Subject to clause 19.1, customised, or non-stocklist items or Materials made or ordered to the Customer’s specifications are not acceptable for credit or return.
- Consumer Guarantees Act 1993
20.1 This Contract is subject to the provisions the Consumer Guarantees Act 1993 (“CGA”) in all cases except where the Customer is not contracting as a consumer within the meaning of the CGA.
- Intellectual Property
21.1 Where the Supplier has designed, drawn, written plans or a schedule of Works, or created any products for the Customer, then the copyright in all such designs, drawings, documents, plans, schedules, and products shall remain vested in the Supplier, and shall only be used by the Customer at the Supplier’s discretion. Under no circumstances may such designs, drawings and documents be used without the express written approval of the Supplier.
21.2 The Customer warrants that all designs, specifications, or instructions given to the Supplier will not cause the Supplier to infringe any patent, registered design, or trademark in the execution of the Customer’s order and the Customer agrees to indemnify the Supplier against any action taken by a third party against the Supplier in respect of any such infringement.
21.3 The Customer agrees that the Supplier may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings, plans or products which the Supplier has created for the Customer.
- Default and Consequences of Default
22.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at the Supplier’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
22.2 If the Customer owes the Supplier any money the Customer shall indemnify the Supplier from and against all costs and disbursements incurred by the Supplier in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, the Supplier’s collection agency costs, and bank dishonour fees).
22.3 Further to any other rights or remedies the Supplier may have under this Contract, if a Customer has made payment to the Supplier, and the transaction is subsequently reversed, the Customer shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by the Supplier under this clause 22, where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Customer’s obligations under this Contract.
22.4 Without prejudice to the Supplier’s other remedies at law the Supplier shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to the Supplier shall, whether or not due for payment, become immediately payable if:
(a) any money payable to the Supplier becomes overdue, or in the Supplier’s opinion the Customer will be unable to make a payment when it falls due;
(b) the Customer has exceeded any applicable credit limit provided by the Supplier;
(c) the Customer becomes insolvent or bankrupt, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
(d) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer.
23.1 Without prejudice to any other rights or remedies the Supplier may have, if at any time the Customer is in breach of any obligation (including those relating to payment and/or failure to remedy any breach in respect of this Contract within ten (10) working days of receipt by the Customer of such notice/s) then the Supplier may suspend the Works immediately. The Supplier will not be liable to the Customer for any loss or damage the Customer suffers because the Supplier has exercised its rights under this clause.
23.2 The Supplier may cancel any Contract to which these terms and conditions apply or cancel delivery of Works/Equipment at any time before the Works are commenced (or the Materials/Equipment are due to be delivered) by giving written notice to the Customer. On giving such notice the Supplier shall repay to the Customer any sums paid in respect of the Price, less any amounts owing by the Customer to the Supplier for Works already performed or Materials/Equipment already provided. The Supplier shall not be liable for any loss or damage whatsoever arising from such cancellation.
23.3 In the event that the Customer cancels the delivery of Works/Equipment the Customer shall be liable for any and all loss incurred (whether direct or indirect) by the Supplier as a direct result of the cancellation (including, but not limited to, any loss of profits).
23.4 Cancellation of orders for Materials made to the Customer’s specifications, or for non-stocklist items, will definitely not be accepted once production has commenced, or an order has been placed.
24.1 All emails, documents, images or other recorded information held or used by the Supplier is “Personal Information” as defined and referred to in clause 24.3 and therefore considered confidential. The Supplier acknowledges its obligation in relation to the handling, use, disclosure and processing of Personal Information pursuant to the Privacy Act 2020 (“the Act”) including Part II of the OECD Guidelines and as set out in the Act. The Supplier acknowledges that in the event it becomes aware of any data breaches and/or disclosure of the Customer’s Personal Information, held by the Supplier that may result in serious harm to the Customer, the Supplier will notify the Customer in accordance with the Act. Any release of such Personal Information must be in accordance with the Act and must be approved by the Customer by written consent, unless subject to an operation of law.
24.2 Notwithstanding clause 24.1, privacy limitations will extend to the Supplier in respect of Cookies where the Customer utilises the Supplier’s website to make enquiries. The Supplier agrees to display reference to such Cookies and/or similar tracking technologies, such as pixels and web beacons (if applicable), such technology allows the collection of Personal Information such as the Customer’s:
(a) IP address, browser, email client type and other similar details;
(b) tracking website usage and traffic; and
24.3 The Customer authorises the Supplier or the Supplier’s agent to:
(a) access, collect, retain and use any information about the Customer;
(i) (including, name, address, D.O.B, occupation, driver’s license details, electronic contact (email, Facebook or Twitter details), medical insurance details or next of kin and other contact information (where applicable), previous credit applications, credit history or any overdue fines balance information held by the Ministry of Justice) for the purpose of assessing the Customer’s creditworthiness; or
(ii) for the purpose of marketing products and services to the Customer.
(b) disclose information about the Customer, whether collected by the Supplier from the Customer directly or obtained by the Supplier from any other source, to any other credit provider or any credit reporting agency for the purposes of providing or obtaining a credit reference, debt collection or notifying a default by the Customer.
24.4 Where the Customer is an individual the authorities under clause 24.3 are authorities or consents for the purposes of the Privacy Act 2020.
24.5 The Customer shall have the right to request (by e-mail) from the Supplier, a copy of the Personal Information about the Customer retained by the Supplier and the right to request that the Supplier correct any incorrect Personal Information.
24.6 The Supplier will destroy Personal Information upon the Customer’s request (by e-mail) or if it is no longer required unless it is required in order to fulfil the obligations of this Contract or is required to be maintained and/or stored in accordance with the law.
24.7 The Customer can make a privacy complaint by contacting the Supplier via e-mail. The Supplier will respond to that complaint within seven
(7) days of receipt and will take all reasonable steps to make a decision as to the complaint within twenty (20) days of receipt of the complaint. In the event that the Customer is not satisfied with the resolution provided, the Customer can make a complaint to the Privacy Commissioner at http://www.privacy.org.nz
- Suspension of Works
25.1 Where the Contract is subject to section 24A of the Construction Contracts Act 2002, the Customer hereby expressly acknowledges that:
(a) the Supplier has the right to suspend work within five (5) working days of written notice of its intent to do so if a payment claim is served on the Customer, and:
(i) the payment is not paid in full by the due date for payment in accordance with clause 6.5 and/or any subsequent amendments or new legislation and no payment schedule has been given by the Customer; or
(ii) a scheduled amount stated in a payment schedule issued by the Customer in relation to the payment claim is not paid in full by the due date for its payment; or
(iii) the Customer has not complied with an adjudicator’s notice that the Customer must pay an amount to the Supplier by a particular date; and
(iv) the Supplier has given written notice to the Customer of its intention to suspend the carrying out of construction work under the construction Contract.
(b) if the Supplier suspends work, it:
(i) is not in breach of Contract; and
(ii) is not liable for any loss or damage whatsoever suffered, or alleged to be suffered, by the Customer or by any person claiming through the Customer; and
(iii) is entitled to an extension of time to complete the Contract; and
(iv) keeps its rights under the Contract including the right to terminate the Contract; and may at any time lift the suspension, even if the amount has not been paid or an adjudicator’s determination has not been complied with.
(c) if the Supplier exercises the right to suspend work, the exercise of that right does not:
(i) affect any rights that would otherwise have been available to the Supplier under the Contract and Commercial Law Act 2017; or
(ii) enable the Customer to exercise any rights that may otherwise have been available to the Customer under that Act as a direct consequence of the Supplier suspending work under this provision;
(d) due to any act or omission by the Customer, the Customer effectively precludes the Supplier from continuing the Works or performing or complying with the Supplier’s obligations under this Contract, then without prejudice to the Supplier’s other rights and remedies, the Supplier may suspend the Works immediately after serving on the Customer a written notice specifying the payment default or the act, omission or default upon which the suspension of the Works is based. All costs and expenses incurred by the Supplier as a result of such suspension and recommencement shall be payable by the Customer as if they were a variation.
25.2 If pursuant to any right conferred by this Contract, the Supplier suspends the Works and the default that led to that suspension continues unremedied subject to clause 23.1 for at least ten (10) working days, the Supplier shall be entitled to terminate the Contract, in accordance with clause 23.
- Equipment Hire
26.1 Equipment shall at all times remain the property of the Supplier and is returnable on demand by the Supplier. In the event that Equipment is not returned to the Supplier in the condition in which it was delivered the Supplier retains the right to charge the Customer the full cost of repairing the Equipment. In the event that Equipment is not returned at all the Supplier shall have right to charge the Customer the full cost of replacing the Equipment.
26.2 The Customer shall:
(a) keep the Equipment in their own possession and control and shall not assign the benefit of the Equipment nor be entitled to a lien over the Equipment;
(b) not alter or make any additions to the Equipment including but without limitation altering, make any additions to, defacing or erasing any identifying mark, plate or number on or in the Equipment or in any other manner interfere with the Equipment;
(c) keep the Equipment, complete with all parts and accessories, clean and in good order as delivered, and shall comply with any maintenance schedule as advised by the Supplier to the Customer.
26.3 The Customer accepts full responsibility for the safekeeping of the Equipment and the Customer agrees to insure, or self insure, the Supplier’s interest in the Equipment and agrees to indemnify the Supplier against physical loss or damage including, but not limited to, the perils of accident, fire, theft and burglary and all other usual risks and will effect adequate Public Liability Insurance covering any loss, damage or injury to property or persons arising out of the use of the Equipment. Further the Customer will not use the Equipment nor permit it to be used in such a manner as would permit an insurer to decline any claim.
26.4 Notwithstanding the above clause, immediately on request by the Supplier the Customer will pay:
(a) any lost hire charges the Supplier would have otherwise been entitled to for the Equipment, under this, or any other hire agreement;
(b) any insurance excess payable in relation to a claim made by either the Customer or the Supplier in relation to any damage caused by, or to, the hire Equipment whilst the same is hired by the Customer and irrespective of whether charged by the Customer’s insurers or the Supplier’s.
26.5 Return of the Equipment (“Return”) will be completed when the:
(a) Equipment is returned by the Customer to the Supplier’s place of business; or
(b) Supplier takes back possession of the Equipment once collection by the Supplier is affected.
- Service of Notices
27.1 Any written notice given under this Contract shall be deemed to have been given and received:
(a) by handing the notice to the other party, in person;
(b) by leaving it at the address of the other party as stated in this Contract;
(c) by sending it by registered post to the address of the other party as stated in this Contract;
(d) if sent by facsimile transmission to the fax number of the other party as stated in this Contract (if any), on receipt of confirmation of the transmission;
(e) if sent by email to the other party’s last known email address.
27.2 Any notice that is posted shall be deemed to have been served, unless the contrary is shown, at the time when by the ordinary course of post, the notice would have been delivered.
28.1 If the Customer at any time upon or subsequent to entering in to the Contract is acting in the capacity of trustee of any trust (“Trust”) then whether or not the Supplier may have notice of the Trust, the Customer covenants with the Supplier as follows:
(a) the Contract extends to all rights of indemnity which the Customer now or subsequently may have against the Trust and the trust fund;
(b) the Customer has full and complete power and authority under the Trust to enter into the Contract and the provisions of the Trust do not purport to exclude or take away the right of indemnity of the Customer against the Trust or the trust fund. The Customer will not release the right of indemnity or commit any breach of trust or be a party to any other action which might prejudice that right of indemnity;
(c) the Customer will not without consent in writing of the Supplier (the Supplier will not unreasonably withhold consent), cause, permit, or suffer to happen any of the following events:
(i) the removal, replacement or retirement of the Customer as trustee of the Trust;
(ii) any alteration to or variation of the terms of the Trust;
(iii) any advancement or distribution of capital of the Trust; or
(iv) any resettlement of the trust property.
29.1 Any dispute or difference arising as to the interpretation of these terms and conditions or as to any matter arising hereunder, shall be submitted to, and settled by, either adjudication in accordance with section 26 of the Construction Contracts Act 2002 and/or by arbitration in accordance with the Arbitration Act 1996 or its replacement(s).
29.2 The failure by either party to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect that party’s right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality, and enforceability of the remaining provisions shall not be affected, prejudiced, or impaired.
29.3 These terms and conditions and any Contract to which they apply shall be governed by the laws of New Zealand and are subject to the jurisdiction of the Canterbury Courts of New Zealand.
29.4 Subject to the CGA, the Supplier shall be under no liability whatsoever to the Customer for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by the Supplier of these terms and conditions (alternatively the Supplier’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Works/Equipment on hire).
29.5 The Supplier may licence and/or assign all or any part of its rights and/or obligations under this Contract without the Customer’s consent.
29.6 The Customer cannot licence or assign without the written approval of the Supplier.
29.7 The Supplier may elect to subcontract out any part of the Works but shall not be relieved from any liability or obligation under this Contract by so doing. Furthermore, the Customer agrees and understands that they have no authority to give any instruction to any of the Supplier’s sub-contractors without the authority of the Supplier.
29.8 The Customer agrees that the Supplier may amend their general terms and conditions for subsequent future Contracts with the Customer by disclosing such to the Customer in writing. These changes shall be deemed to take effect from the date on which the Customer accepts such changes, or otherwise at such time as the Customer makes a further request for the Supplier to provide Works to the Customer.
29.9 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm, national or global pandemics and/or the implementation of regulation, directions, rules or measures being enforced by Governments or embargo, including but not limited to, any Government imposed border lockdowns (including, worldwide destination ports), etc, (“Force Majeure”) or other event beyond the reasonable control of either party. This clause does not apply to a failure by the Customer to make a payment to the Supplier.
29.10 Both parties warrant that they have the power to enter into this Contract and have obtained all necessary authorisations to allow them to do so, they are not insolvent and that this Contract creates binding and valid legal obligations on them.
26965 © Copyright – EC Credit Control 1999 – 2022