SMARTER PLUMBING (2016) LTD
Terms of Trade
1.1 "Gasfitter/Plumber" - shall mean Smarter Plumbing (2016) Ltd, its successors and assigns or any person acting on behalf of and with the authority of Smarter Plumbing (2016) Ltd.
1.2 "Customer" - shall mean the Customer (or any person acting on behalf of and with the authority of the Customer) as described on any quotation, work authorisation or other form as provided by the Gasfitter/Plumber to the Customer.
1.3 "Guarantor" - shall mean that person (or persons) who agrees to be liable for the debts of the Customer on a principal debtor basis.
1.4 "Goods" - shall mean all Goods supplied by the Gasfitter/Plumber to the Customer (and where the context so permits shall include any supply of Services as hereinafter defined) and includes Goods described on any invoices, quotation, work authorisation or any other forms as provided by the Gasfitter/Plumber to the Customer.
1.5 "Services" - shall mean all services supplied by the Gasfitter/Plumber to the Customer and includes any advice or recommendations (and where the context so permits shall include any supply of Goods as defined above).
1.6 "Price" - shall mean the price payable for the Goods as agreed between the Gasfitter/Plumber and the Customer in accordance with clause 3 of this contract.
2.1 Any instructions received by the Gasfitter/Plumber from the Customer for the supply of Goods and/or the Customer's acceptance of Goods supplied by the Gasfitter/Plumber shall constitute acceptance of the terms and conditions contained herein.
2.2 Where more than one Customer has entered into this agreement, the Customers shall be jointly and severally liable for all payments of the Price.
2.3 Upon acceptance of these terms and conditions by the Customer the terms and conditions are binding and can only be amended with the written consent of the Gasfitter/Plumber.
2.4 The Customer shall give the Gasfitter/Plumber not less than fourteen (14) days prior written notice of any proposed change of ownership of the Customer or any change in the Customer's name and/or any other change in the Customer's details (including but not limited to, changes in the Customer's address, facsimile number, or business practice). The Customer shall be liable for any loss incurred by the Gasfitter/Plumber as a result of the Customer's failure to comply with this clause.
2.5 Goods are supplied by the Gasfitter/Plumber only on the terms and conditions of trade herein to the exclusion of anything to the contrary in the terms of the Customer's order notwithstanding that any such order is placed on terms that purport to override these terms and conditions of trade.
3. Price and Payment
3.1 At the Gasfitter's/Plumber's sole discretion the Price shall be either:
(a) as indicated on invoices provided by the Gasfitter/Plumber to the Customer in respect of Goods supplied; or
(b) the Gasfitter's/Plumber's current price at the date of delivery of the Goods according to the Gasfitter's/Plumber's current Price list; or
(c) the Gasfitter's/Plumber's quoted Price (subject to clause 3.2) which shall be binding upon the Gasfitter/Plumber provided that the Customer shall accept the Gasfitter's/Plumber's quotation in writing within sixty (60) days.
3.2 The Gasfitter/Plumber reserves the right to change the Price in the event of a variation to the Gasfitter's/Plumber's quotation. Any variation from the plan of scheduled works or specifications (including, but not limited to, any variation as a result of additional works required due to hidden or unidentifiable difficulties such as hard rock barriers below the surface or as a result of increases to the Gasfitter/Plumber in the cost of materials and labour) will be charged for on the basis of the Gasfitter's/Plumber's quotation and will be shown as variations on the invoice. Payment for all variations must be made in full at their time of completion.
3.3 At the Gasfitter's/Plumber's sole discretion a deposit may be required.
3.4 At the Gasfitter's/Plumber's sole discretion:
(a) payment shall be due on delivery of the Goods; or
(b) payment for approved Customers shall be due twenty (20) days following the end of the month in which a statement is posted to the Customer's address or address for notices; or
(c) payment for approved Customers shall be made by installments in accordance with the Gasfitter's/Plumber's payment schedule.
3.5 The Gasfitter/Plumber may submit detailed progress payment claims in accordance with the Gasfitter's/Plumber's specified payment schedule. Such payment claims may include the reasonable value of authorised variations and the value of any materials delivered to the site but not yet installed.
3.6 Time for payment for the Goods shall be of the essence and will be stated on the invoice or any other forms. If no time is stated, then payment shall be due seven (7) days following the date of the invoice.
3.7 Payment will be made by direct credit into nominated account as stated on the invoice, cash, or by bank cheque.
3.8 GST and other taxes and duties that may be applicable shall be added to the Price except when they are expressly included in the Price.
4. Delivery of Goods
4.1 At the Gasfitter's/Plumber's sole discretion delivery of the Goods shall take place when:
(a) the Customer takes possession of the Goods at the Gasfitter's/Plumber's address; or
(b) the Customer takes possession of the Goods at the Customer's nominated address.
4.2 The Customer shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery. In the event that the Customer is unable to take delivery of the Goods as arranged then the Gasfitter/Plumber shall be entitled to charge a reasonable fee for redelivery.
4.3 Delivery of the Goods to a third party nominated by the Customer is deemed to be delivery to the Customer for the purposes of this agreement.
4.4 The failure of the Gasfitter/Plumber to deliver shall not entitle either party to treat this contract as repudiated.
4.5 The Gasfitter/Plumber shall not be liable for any loss or damage whatsoever due to failure by the Gasfitter/Plumber to deliver the Goods (or any of them) promptly or at all, where due to circumstances beyond the control of the Gasfitter/Plumber.
5.1 If the Gasfitter/Plumber retains ownership of the Goods nonetheless, all risk for the Goods passes to the Customer on delivery.
5.2 If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Customer, the Gasfitter/Plumber is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by the Gasfitter/Plumber is sufficient evidence of the Gasfitter's/Plumber's rights to receive the insurance proceeds without the need for any person dealing with the Gasfitter/Plumber to make further enquiries.
5.3 The Customer acknowledges and agrees that the presence of plant/tree root growth and/or blockages generally indicates damaged pipes. Accordingly, the Customer agrees that these pipes cannot be fixed by simply removing plant/tree root growth or cleaning the drain, therefore no warranty is provided against this situation arising again in the future and in respect of any work carried out in relation thereto.
5.4 Where the Gasfitter/Plumber is required to install the Goods the Customer warrants that the structure of the premises or equipment in or upon which these Goods are to be installed or erected is sound and will sustain the installation and work incidental thereto and the Gasfitter/Plumber shall not be liable for any claims, demands, losses, damages, costs and expenses howsoever caused or arising should the premises or equipment be unable to accommodate the installation.
6.1 The Customer shall ensure that the Gasfitter/Plumber has clear and free access to the work site at all times to enable them to undertake the works. The Gasfitter/Plumber shall not be liable for any loss or damage to the site (including, without limitation, damage to pathways, driveways and concreted or paved or grassed areas) unless due to the negligence of the Gasfitter/Plumber.
7. Underground Locations
7.1 Prior to the Gasfitter/Plumber commencing any work the Customer must advise the Gasfitter/Plumber of the precise location of all underground services on the site and clearly mark the same. The underground mains & 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 site.
7.2 Whilst the Gasfitter/Plumber will take all care to avoid damage to any underground services the Customer agrees to indemnify the Gasfitter/Plumber 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 7.1.
8.1 The Gasfitter/Plumber and Customer agree that ownership of the Goods shall not pass until:
(a) the Customer has paid the Gasfitter/Plumber all amounts owing for the particular Goods; and
(b) the Customer has met all other obligations due by the Customer to the Gasfitter/Plumber in respect of all contracts between the Gasfitter/Plumber and the Customer.
8.2 Receipt by the Gasfitter/Plumber 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 and until then the Gasfitter's/Plumber's ownership or rights in respect of the Goods shall continue.
8.3 It is further agreed that:
(a) where practicable the Goods shall be kept separate and identifiable until the Gasfitter/Plumber shall have received payment and all other obligations of the Customer are met; and
(b) until such time as ownership of the Goods shall pass from the Gasfitter/Plumber to the Customer the Gasfitter/Plumber may give notice in writing to the Customer to return the Goods or any of them to the Gasfitter/Plumber. Upon such notice being given the rights of the Customer to obtain ownership or any other interest in the Goods shall cease; and
(c) the Customer is only a bailee of the Goods and until such time as the Gasfitter/Plumber has received payment in full for the Goods then the Customer shall hold any proceeds from the sale or disposal of the Goods, up to and including the amount the Customer owes to the Gasfitter/Plumber for the Goods, on trust for the Gasfitter/Plumber; and
(d) until such time that ownership in the Goods passes to the Customer, if the Goods are converted into other products, the parties agree that the Gasfitter/Plumber will be the owner of the end products; and
(e) if the Customer fails to return the Goods to the Gasfitter/Plumber then the Gasfitter/Plumber or the Gasfitter's/Plumber's agent may (as the invitee of the Customer) enter upon and into land and premises owned, occupied or used by the Customer, or any premises where the Goods are situated and take possession of the Goods, and the Gasfitter/Plumber will not be liable for any reasonable loss or damage suffered as a result of any action by the Gasfitter/Plumber under this clause.
9. Personal Property Securities Act 1999 ("PPSA")
9.1 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 Goods previously supplied by the Gasfitter/Plumber to the Customer (if any) and all Goods that will be supplied in the future by the Gasfitter/Plumber to the Customer.
9.2 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 Gasfitter/Plumber 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 Gasfitter/Plumber for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register or releasing any Goods charged thereby;
(c) not register a financing change statement or a change demand without the prior written consent of the Gasfitter/Plumber; and
(d) immediately advise the Gasfitter/Plumber of any material change in its business practices of selling the Goods which would result in a change in the nature of proceeds derived from such sales.
9.3 The Gasfitter/Plumber and the Customer agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms and conditions.
9.4 The Customer waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA.
9.5 Unless otherwise agreed to in writing by the Gasfitter/Plumber, the Customer waives its right to receive a verification statement in accordance with section 148 of the PPSA.
9.6 The Customer shall unconditionally ratify any actions taken by the Gasfitter/Plumber under clauses 9.1 to 9.5.
10. Security and Charge
10.1 Despite anything to the contrary contained herein or any other rights which the Gasfitter/Plumber may have howsoever:
(a) where the Customer and/or the Guarantor (if any) is the owner of land, realty or any other asset capable of being charged, both the Customer and/or the Guarantor agree to mortgage and/or charge all of their joint and/or several interest in the said land, realty or any other asset to the Gasfitter/Plumber or the Gasfitter's/Plumber's nominee to secure all amounts and other monetary obligations payable under these terms and conditions. The Customer and/or the Guarantor acknowledge and agree that the Gasfitter/Plumber (or the Gasfitter's/Plumber's nominee) shall be entitled to lodge where appropriate a caveat, which caveat shall be withdrawn once all payments and other monetary obligations payable hereunder have been met.
(b) should the Gasfitter/Plumber elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Customer and/or Guarantor shall indemnify the Gasfitter/Plumber from and against all the Gasfitter's/Plumber's costs and disbursements including legal costs on a solicitor and own client basis.
(c) the Customer and/or the Guarantor (if any) agree to irrevocably nominate constitute and appoint the Gasfitter/Plumber or the Gasfitter's/Plumber's nominee as the Customer's and/or Guarantor's true and lawful attorney to perform all necessary acts to give effect to the provisions of this clause 10.1.
11. Customer's Disclaimer
11.1 The Customer hereby disclaims any right to rescind or cancel any contract with the Gasfitter/Plumber or to sue for damages or to claim restitution arising out of any inadvertent misrepresentation made to the Customer by the Gasfitter/Plumber and the Customer acknowledges that the Goods are bought relying solely upon the Customer's skill and judgment.
12.1 The Customer shall inspect the Goods on delivery and shall within seven (7) days of delivery (time being of the essence) notify the Gasfitter/Plumber of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Customer shall afford the Gasfitter/Plumber an opportunity to inspect the Goods within a reasonable time following delivery if the Customer believes the Goods are defective in any way. If the Customer shall fail to comply with these provisions the Goods shall be presumed to be free from any defect or damage. For defective Goods, which the Gasfitter/Plumber has agreed in writing that the Customer is entitled to reject, the Gasfitter's/Plumber's liability is limited to either (at the Gasfitter's/Plumber's discretion) replacing the Goods or repairing the Goods.
13.1 Returns will only be accepted provided that:
(a) the Customer has complied with the provisions of clause 12.1; and
(b) the Gasfitter/Plumber has agreed in writing to accept the return of the Goods; and
(c) the Goods are returned at the Customer's cost within seven (7) days of the delivery date; and
(d) the Gasfitter/Plumber will not be liable for Goods which have not been stored or used in a proper manner; and
(e) the Goods are returned in the condition in which they were delivered and with all packaging material, brochures and instruction material in as new condition as is reasonably possible in the circumstances.
13.2 The Gasfitter/Plumber may (in its discretion) accept the return of Goods for credit but this may incur a handling fee of ten percent (10%) of the value of the returned Goods plus any freight.
13.3 Non-stocklist items or Goods made to the Customer's specifications are under no circumstances acceptable for credit or return.
14.1 Subject to the conditions of warranty set out in Clause
14.2 the Gasfitter/Plumber warrants that if any defect in any workmanship of the Gasfitter/Plumber becomes apparent and is reported to the Gasfitter/Plumber within twelve (12) months of the date of delivery (time being of the essence) then the Gasfitter/Plumber will either (at the Gasfitter's/Plumber's sole discretion) replace or remedy the workmanship.
14.2 The conditions applicable to the warranty given by Clause 14.1 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 Goods; or
(ii) failure on the part of the Customer to follow any instructions or guidelines provided by the Gasfitter/Plumber; or
(iii) any use of any Goods otherwise than for any application specified on a quote or order form; or
(iv) the continued use of any Goods after any defect becomes apparent or would have become apparent to a reasonably prudent operator or user; or
(v) fair wear and tear, any accident or act of God.
(b) the warranty shall cease, and the Gasfitter/Plumber shall thereafter in no circumstances be liable under the terms of the warranty if the workmanship is repaired, altered or overhauled without the Gasfitter's/Plumber's consent.
(c) in respect of all claims the Gasfitter/Plumber shall not be liable to compensate the Customer for any delay in either replacing or remedying the workmanship or in properly assessing the Customer's claim.
14.3 For Goods not manufactured by the Gasfitter/Plumber, the warranty shall be the current warranty provided by the manufacturer of the Goods. The Gasfitter/Plumber 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 Goods.
14.4 In the case of second hand Goods, the Customer acknowledges that he has had full opportunity to inspect the same and that he accepts the same with all faults and that no warranty is given by the Gasfitter/Plumber as to the quality or suitability for any purpose and any implied warranty, statutory or otherwise, is expressly excluded. The Gasfitter/Plumber shall not be responsible for any loss or damage to the Goods, or caused by the Goods, or any part thereof however arising.
15. Consumer Guarantees Act 1993
15.1 If the Customer is acquiring Goods for the purposes of a trade or business, the Customer acknowledges that the provisions of the Consumer Guarantees Act 1993 do not apply to the supply of Goods by the Gasfitter/Plumber to the Customer.
16. Default & Consequences of Default
16.1 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 Gasfitter's/Plumber's sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
16.2 In the event that the Customer's payment is dishonoured for any reason the Customer shall be liable for any dishonour fees incurred by the Gasfitter/Plumber.
16.3 If the Customer defaults in payment of any invoice when due, the Customer shall indemnify the Gasfitter/Plumber from and against all costs and disbursements incurred by the Gasfitter/Plumber in pursuing the debt including legal costs on a solicitor and own client basis and the Gasfitter's/Plumber's collection agency costs.
16.4 Without prejudice to any other remedies the Gasfitter/Plumber may have, if at any time the Customer is in breach of any obligation (including those relating to payment) the Gasfitter/Plumber may suspend or terminate the supply of Goods to the Customer and any of its other obligations under the terms and conditions. The Gasfitter/Plumber will not be liable to the Customer for any loss or damage the Customer suffers because the Gasfitter/Plumber has exercised its rights under this clause.
16.5 If any account remains overdue after thirty (30) days then an amount of the greater of twenty dollars ($20.00) or ten percent (10%) of the amount overdue shall be levied for administration fees which sum shall become immediately due and payable.
16.6 Without prejudice to the Gasfitter's/Plumber's other remedies at law the Gasfitter/Plumber shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to the Gasfitter/Plumber shall, whether or not due for payment, become immediately payable in the event that:
(a) any money payable to the Gasfitter/Plumber becomes overdue, or in the Gasfitter's/Plumber's opinion the Customer will be unable to meet its payments as they fall due; or
(b) the Customer becomes insolvent, 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
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer.
17.1 The Gasfitter/Plumber may cancel any contract to which these terms and conditions apply or cancel delivery of Goods at any time before the Goods are delivered by giving written notice to the Customer. On giving such notice the Gasfitter/Plumber shall repay to the Customer any sums paid in respect of the Price. The Gasfitter/Plumber shall not be liable for any loss or damage whatsoever arising from such cancellation.
17.2 In the event that the Customer cancels delivery of the Goods the Customer shall be liable for any loss incurred by the Gasfitter/Plumber (including, but not limited to, any loss of profits) up to the time of cancellation.
17.3 Cancellation of orders for Goods made to the Customer's specifications or non-stocklist items will definitely not be accepted, once production has commenced.
18. Privacy Act 1993
18.1 The Customer and the Guarantor/s (if separate to the Customer) authorises the Gasfitter/Plumber to:
(a) collect, retain and use any information about the Customer and/or Guarantors, for the purpose of assessing the Customer's and/or Guarantors creditworthiness or marketing products and services to the Customer and/or Guarantors; and
(b) disclose information about the Customer and/or Guarantors, whether collected by the Gasfitter/Plumber from the Customer and/or Guarantors directly or obtained by the Gasfitter/Plumber 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 and/or Guarantors.
18.2 Where the Customer and/or Guarantors are an individual the authorities under clause 18.1 are authorities or consents for the purposes of the Privacy Act 1993.
18.3 The Customer and/or Guarantors shall have the right to request the Gasfitter/Plumber for a copy of the information about the Customer and/or Guarantors retained by the Gasfitter/Plumber and the right to request the Gasfitter/Plumber to correct any incorrect information about the Customer and/or Guarantors held by the Gasfitter/Plumber.
19. Construction Contract Act 2002
19.1 The Customer hereby expressly acknowledges that:
(a) the Gasfitter/Plumber 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 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 Gasfitter/Plumber by a particular date; and
(iv) the Gasfitter/Plumber 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 Gasfitter/Plumber 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 Gasfitter/Plumber 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 Gasfitter/Plumber under the Contractual Remedies Act 1979; or 2.
(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 Gasfitter/Plumber suspending work under this provision.
20.1 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.
20.2 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 courts of New Zealand.
20.3 The Gasfitter/Plumber 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 Gasfitter/Plumber of these terms and conditions.
20.4 In the event of any breach of this contract by the Gasfitter/Plumber the remedies of the Customer shall be limited to damages which under no circumstances shall exceed the Price of the Goods.
20.5 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 Gasfitter/Plumber nor to withhold payment of any invoice because part of that invoice is in dispute.
20.6 The Gasfitter/Plumber may license or sub-contract all or any part of its rights and obligations without the Customer's consent.
20.7 The Gasfitter/Plumber reserves the right to review these terms and conditions at any time. If, following any such review, there is to be any change to these terms and conditions, then that change will take effect from the date on which the Gasfitter/Plumber notifies the Customer of such change.
20.8 The provisions of the Contractual Remedies Act 1979 shall apply to this contract as if section 15(d) of the Act which states that nothing in the Act shall affect the Sale of Goods Act 1908, were omitted from the Contractual Remedies Act 1979.
20.9 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, drought, storm or other event beyond the reasonable control of either party.
20.10 The failure by the Gasfitter/Plumber to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect the Gasfitter's/Plumber's right to subsequently enforce that provision.