Wallace Roofing & Consulting Limited- Terms Of Trade
1. Pricing
1.1 All pricing provided shall be exclusive of GST, or any other taxes and registration costs applicable unless specified.
1.2 Any Quote provided by us is based on the current pricing, subject to availability, for the Goods and/or Services from our suppliers as at the quotation date and shall not be binding on the Company unless accepted by the Customer within 30 days from the quotation date.
1.3 The acceptance of the price in any manner shall constitute a legal contract and acceptance of the terms and conditions contained herein.
1.4 Where any increases in the cost of Work incurred between the date of quotation and date of completion is beyond the reasonable control of the Company the price of goods and/or services may be increased notwithstanding any other clause.
1.5 Where the Customer requests the Company to provide an estimate of Goods and/or services to be supplied from information (including sketches, plans, schedules, specifications or otherwise) the Customer agrees to pay for any variation between the estimate and the actual quantities supplied and the Contract shall be deemed to be adjusted accordingly.
1. 6 Where no price is stated in writing or agreed, the goods and/or services shall be deemed to be sold and/or supplied at the current price applying at the date upon which the invoice for the goods or services is issued to the Customer.
2. Payments
2.1 We may require a deposit or advanced payment from you before we commence the Work.
2.2 Payment for the Work will be made on the terms contained in the Quote or Invoice provided. If not otherwise specified, the payment shall be due no later than 7 days following issue of invoice by Cash or Electronic Transfer.
2.3 If any failure to make payment by the due date we may deem the customer to be in Default. If a Default has occurred we shall be under no obligation to continue the Work until payment has been received in full.
2.4 Any expenses, costs, fees and disbursements incurred by us in recovering any amounts payable under these Terms shall be recoverable from you, including any legal or debt collection fees. We reserve the right to charge you default interest at 3% per month on any late payments calculated on a daily basis from the due date until the date payment is received.
2.5 We may notify you at any time that we have ceased to carry out any Work on credit and from that time require advance payments prior to completing further Work.
2.6 Any payment of all money will be without deduction or set-off of any kind.
2.7 We retain the right to apportion payments to your accounts as we think fit.
2.8 The provisions of this clause are subject clause 3 below.
3. Special provisions for residential work
3.1 If the Work is residential in nature the Company may issue payments claims that comply with the CCA.
3.2 As per the CCA if a payment made under the claim is not in full, the Customer must issue a payment schedule, not later than the due date.
3.3 Any remedies under the CCA are without prejudice to the Terms or any applicable laws.
4. Performance
4.1 We will perform the Work with reasonable skill, care and diligence in a professional manner.
4.2 You acknowledge that any provided time frames for the commencement and completion of the Work are approximate only and not deemed to be of essence to the contract. We shall ensure the Work is commenced and completed within the time frame specified as is reasonable, but shall not be liable for any delay or failure directly or indirectly to do so.
4.3 We shall not be held responsible for any delays caused by directly or indirectly from causes reasonably beyond our control, including from separate or nominated subcontractors. The Customer agrees that any costs incurred by any such delays shall be charged as an addition to the price.
5. Your Obligations
5.1 You shall ensure clear and free access is available to us at all times to enable us to undertake the Work, including the installation of scaffolding.
5.2 Should you be responsible for the provision of scaffolding you will ensure it is erected to comply with all industry safety standards, and installed by qualified persons holding a current license or certificate of competency.
5.3 In the event of the discovery or any toxic substances or asbestos you are liable for the safe removal of such, and indemnify us from any loses or delays as a consequence of such discovery.
5.4 You shall provide any relevant information known prior to commencement or during of works that may be relative to the contracted works.
5.5 You shall be responsible for the removal of rubbish and cleaning up of the worksite unless specified prior to completion and any costs arising from such removal not provided for in a quote will be your liability.
5.6 We shall not be liable for any loss or damage to the premises (including, without limitation, damage to pathways, driveways and concreted or paved or grassed areas) caused during the works unless by our negligence or intention.
6. Defects
6.1 Any alleged defect, error, damage or failure to comply with the Contract identified by you must be notified to us in writing within fourteen (14) days of completion of the work.
6.2 You must provide us the ability to inspect the allegations within a reasonable time from notification and failure to do so shall be deemed as acceptance the Works are free from defect.
6.3 We agree to rectify any defects where possible within a reasonable time frame of our agreed written acceptance of those defects.
6.4 The Company shall not be liable under this clause to remedy any defects covered by a guarantee that is available to and may be enforced by you from an external party or any defects/damage caused by you or any other contractors of you.
6.5 You acknowledge any Goods supplied may exhibit variations in shade, colour, texture, surface and finish, and may fade or change colour over time. We will endeavour to supply materials in a way that minimises such variations but shall not be liable for variations that occur outside of our control.
7. Risk & Ownership
7.1 The risk in Goods supplied passes to you on delivery. Delivery occurs at the time possession of the Goods passes to you (or a person nominated by you) from us.
7.2 If Works provided are in relation to the extension or alteration of an existing building you are solely responsible for advising your insurance agency and updating any policies to ensure provisions are arranged for any associated risks.
7.3 Ownership of any Goods or materials supplied shall remain with us until such time as all amounts owing by you in respect of the Goods and/or materials have been paid in full.
7.4 You shall be liable for any costs, loss or damages incurred by us in reclaiming and/or disposing of any unpaid goods and/or materials and these costs shall be recoverable from you. This includes but is not limited to any loss in value, damage to premise, storage, or legal costs.
8. Security / PPSA
8.1 All terms in this clause 8 have the meaning given in the PPSA and section references will be to sections of the PPSA.
8.2 You acknowledge and accept that these Terms provided constitute a security agreement for the purposes of the PPSA.
8.3 You undertake to complete any requests or documents required by us to ensure that our security interest constitutes a first ranking perfected security interest in the Goods.
8.4 We may at any time enter your premises and properties to uplift Goods that we have a security interest in.
8.5 You waive any rights you may have under sections 114(1)(a), 116, 120(2), 121, 125, 129, 131, and 133 of the PPSA.
8.6 You waive your right to receive a copy of any verification statement (as that term is defined in the PPSA).
8.7 You will give us prior written notice of any proposed change of your name or address.
9. Liability
9.1 The Consumer Guarantees Act 1993, the Fair Trading Act 1986, and other statutes may impose warranties, conditions or obligations upon us which cannot by law (or which can only to a limited extent by law) be excluded. Other than as expressly provided for in these Terms, we exclude all such imposed warranties, conditions or obligations to the extent permitted by law and exclude any warranty, condition or obligation imposed or implied under common law, equity or otherwise.
9.2 Where we choose to give you the benefit of any warranty we hold over Goods we do so in our absolute discretion.
9.3 Where you acquire goods and/or services from us for the purposes of a business:
(a) the parties acknowledge and agree that:
(i) you are acquiring the goods and/or services covered by these Terms for the purposes of a business in terms of sections 2 and 43(2) of the Consumer Guarantees Act 1993;
(ii) the goods and/or services are both supplied and acquired in trade for the purposes of the Fair Trading Act 1986 and the parties agree to contract out of sections 9 (Misleading and deceptive conduct generally), 12A (Unsubstantiated representations), and 13 (False or misleading representations); and
(b) you agree that all warranties, conditions, and other terms implied by the Consumer Guarantees Act 1993 or sections 9, 12A, and 13 of the Fair Trading Act 1986 are excluded from these Terms to the fullest extent permitted by law and the parties further acknowledge and agree that it is fair and reasonable that the parties are bound by this clause.
9.4 Except to the extent that the law prevents us from excluding liability and as expressly provided for in clause 9.4, we will not be liable for any loss or damage or liability of any kind whatsoever (including consequential loss or lost profit or business) whether suffered or incurred by you or another person and whether in contract, or tort (including in negligence), or otherwise and whether such loss or damage arises directly or indirectly from Work or Goods provided by us to you.
9.5 To the extent that we are liable for any reason for any loss suffered or liability incurred by you arising from any breach of these Terms of Trade or for any other reason, such liability is limited to the amount of the Actual Cost.
10. Default
10.1 As well as by Default described by clause 2 we reserve the ability to impose the same rights in the event we believe there is risk to the Goods, including but not limited to;
(a) you sell, remove or dispose of any Goods or do anything inconsistent with our ownership of the Goods prior to making payment in full to us without our consent;
(b) we believe there is risk or realisation of bankruptcy, liquidation, receivership or insolvency by you;
(c ) the Goods are at risk as is defined in the PPSA;
(d) you are otherwise in breach of your obligations under these Terms.
10.2 You will be liable for any costs (including legal costs, as between solicitor and client) arising from the enforcement or attempt to enforce our rights, remedies, and powers under these Terms.
10.3 We are not liable for any damages or loss suffered by you in the event of our exercise of our rights or remedies in
these Terms.
10.4 At any time after Default has occurred or in the event of risk to the Goods the Company reserves the right to;
(a) take possession of any Goods; and/or
(b) sell, dispose or do anything with the Goods as we think fit, and otherwise do anything you could do in relation to the Goods; and/or
(c) enter upon any land or premises where the Company believes the Goods are kept without notice in order to take possession of and/or remove the Goods.
10.5 Nothing in the prior clauses affects the rights of any person under the CCA.
11. Plans & Specifications
11.1 Copyright and ownership in all drawings, specifications and other technical information provided by us in connection with the work is vested in us.
11.2 Where the Company has followed plans, measurements or specifications provided by the Customer or their agent, the Customer shall indemnify the Company against all damages, penalties, costs and expenses in respect of which the Company may become liable through the utilisation of such.
12. Privacy & Information
12.1 You authorise us:
(a) to collect, retain and use information about you from any person for the purpose of assessing your creditworthiness;
(b) to disclose information about you:
(i) to any person who guarantees, or who provides insurance, or who provides any other credit support, in relation to your obligations to us;
(ii) to such persons as may be necessary or desirable to enable us to exercise any power or enforce or attempt to enforce any of our rights, remedies and powers under these Terms of Trade.
12.2 You consent to us and any financier or credit-rating agency making enquiries of and obtaining any information about your financial standing and
creditworthiness.
12.3 We agree to provide you any information we hold about you upon your request.
13. Notices
13.1 Any notice may be given by phone, in person, posted, or sent by email to you (or where you are a company, to any of your directors).
14. Cancellation
14.1 If you wish to cancel the contract in whole or partly at any time you must advise us as soon as possible and obtain written consent from us.
14.2 You shall be liable for all actual and reasonable costs and expenses incurred by us in relation to the contract and any portion cancelled.
14.3 We reserve the right to cancel wholly or partly the contract by written notice to you.
14.4 In the event payment related to the Works have been received by us for services or goods then cancelled by you, we agree to repay any sum relating to such in the Price provided where able. Any goods provided that are not returnable will not be refunded unless at our discretion.
14.5 We are not liable for any costs incurred by you arising from cancellation.
15. Disputes
15.1 Any claim or dispute arising under these Terms will be determined by arbitration under the Arbitration Act 1996 if the parties are unable to resolve such dispute themselves within one (1) month of the dispute arising. However, nothing in this clause prevents either party from taking immediate steps to seek any equitable relief before the New Zealand Courts.
15.2 Nothing in the foregoing clauses affects the rights of any person under the CCA.
16. Warranties
16.1 Subject to any Terms of the contract we warrant any defect in workmanship that appears and is reported to us in writing within five (5) years of date of completion (time being of the essence).
16.2 We at our sole discretion can agree to replace or remedy such Work.
16.3 We shall not be liable for any defect or damage caused wholly or partly by;
(a) Your failure to properly maintain the Works; or
(b) Your failure to follow any instructions or guidelines provided; or
(c) any use of the works outside of its recommended application by us; or
(d) the failure to notify and continued usage of the works after the defect appeared or should have been apparent to any reasonably prudent person; or
(e) fair wear and tear or act of God.
16.4 In the event of any workmanship being repaired, altered or attended to without consent of us the warranty provided by us shall cease in its entirety.
16.5 We shall not be held liable by way of compensation for any delay in assessment or rectifying the workmanship claim.
16.6 We are limited in our obligations of liability to the lesser of;
(a) the price of goods or services complained of;
(b) the costs of remedial work or repair completed; or
(c) the actual loss or damage suffered by you.
16.7 Any warranty of materials provided be held by the manufacturer of the materials and shall not bind us in any respect other than specified by the manufacturer.
17. General
17.1 References to us include our employees, contractors and agents.
17.2 Words referring to the singular include the plural and vice versa.
17.3 Any reference to a party includes (a) that party’s executors, administrators, or permitted assigns or (b) if a company, limited partnership, or any other body corporate, its successors or permitted assigns or both.
17.4 Clause headings are for reference only.
17.5 References to clauses are references to clauses of these Terms unless specified.
17.6 References to money will be New Zealand currency, unless specified otherwise.
17.7 Our failure to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect our 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.
17.8 You agree that we may amend these terms and conditions at any time. If we make a change to these terms and conditions, then that change will take effect from the date on which we notify you of such change. You will be taken to have accepted such changes if you make a further request for us to provide any Works to you.
17.9 Expressions referring to writing will be construed as including references to words printed, typewritten or otherwise visibly represented, copied or reproduced (including by fax or email).
17.10 References to statutory provisions will be construed as references to those provisions as amended or re-enacted or as their application is modified by other provisions from time to time.
17.11 The rule of construction known as the contra proferentem rule does not apply to these Terms of Trade.
17. 12 In these Terms unless the context otherwise requires;
“Work” means our performance of services for you, and the production or supply of any Goods by us as part of or related to such services we provide.
“Goods” has the meaning given to it in the Personal Property Securities Act 1999.
“Quote” means a written offer from us to you to supply Goods and/or Services for a specified price subject to the terms and conditions of such offer and these Terms.
“Services” means any services performed or provided by the Company.
“Terms” means the terms and conditions set out in this document, including any agreed variation to these Terms.
“Default” means the Customer fails to comply with the Contract or any agreement with the Company and/or an event occurs or information becomes known to the Company, which in the Company’s opinion, might materially affect the Customer’s credit worthiness, the value of the Goods, or the Customer’s ability or willingness to comply with its obligations under the Contract
“GST” means Goods and Services Tax.
18. Governing Law
18.1 The within terms and conditions shall be governed by and construed in accordance with the laws of New Zealand and the parties shall submit to the exclusive jurisdiction of the New Zealand Courts.
19. Agency
19.1 The Customer authorises the Company to contract for the provision of goods or services either as an agent or principal, and acknowledges the Customer shall be
liable for any amounts due under that contract.
19.2 The Company reserves the right to engage subcontractors without prejudice and without requirement of adjustment to any Price or quotation.
