21/02/2018
Taupo Coating Specialists Ltd – Terms & Conditions of Trade
1. Definitions
1.1 “TCS” shall mean Taupo Coating Specialists Ltd its successors and assigns or any person acting on behalf of and with the authority of Taupo Coating Specialists 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 TCS to the Customer.
1.3 “Guarantor” shall mean that person (or persons), or entity, who agrees to be liable for the debts of the Customer on a principal debtor basis.
1.4 “Services” shall mean all Services supplied by TCS to the Customer (and includes any consumables used by TCS to provide the Services and any advice or recommendations) and are as described on the invoices, quotation, work authorisation or any other forms as provided by TCS to the Customer.
1.5 “Price” shall mean the price payable for the Services as agreed between TCS and the Customer in accordance with clause 3 of this contract.
2. Acceptance
2.1 Any instructions received by TCS from the Customer for the supply of Services and/or the Customer’s acceptance of Services supplied by TCS 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 TCS.
2.4 The Customer shall give TCS 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 TCS as a result of the Customer’s failure to comply with this clause.
2.5 Services are supplied by TCS 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 TCS’s sole discretion the Price shall be either:
(a) as indicated on invoices provided by TCS to the Customer in respect of Services supplied; or
(b) TCS’s quoted Price (subject to clause 3.2) which shall be binding upon TCS provided that the Customer shall accept TCS’s quotation in writing within thirty (30) days.
3.2 TCS reserves the right to change the Price in the event of a variation to TCS’s quotation.
3.3 TCS may submit a detailed payment claim at intervals not less than one month for work performed up to the end of each month. The value of work so performed shall include the reasonable value of authorised variations and the value of materials delivered to the site but not yet installed. Progress payment shall be made within twenty (20) working days of each monthly payment claim.
3.4 At TCS’s sole discretion:
(a) payment shall be due on completion of the Services; 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.
3.5 Time for payment for the Services 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.
3.6 Payment will be made by cash, or by cheque, or by bank cheque, or by direct credit, or by any other method as agreed to between the Customer and TCS.
3.7 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 Services
4.1 At TCS’s sole discretion delivery of the Services shall take place when:
(a) the Customer takes possession of the Services at TCS’s address; or
(b) the Customer takes possession of the Services at the Customer’s nominated address.
4.2 At TCS’s sole discretion the costs of delivery are:
(a) included in the Price; or
(b) in addition to the Price; or
(c) for the Customer’s account.
4.3 The Customer shall make all arrangements necessary to take delivery of the Services whenever they are tendered for delivery. In the event that the Customer is unable to take delivery of the Services as arranged then TCS shall be entitled to charge a reasonable fee for redelivery.
4.4 TCS may deliver the Services by separate instalments. Each separate instalment shall be invoiced and paid for in accordance with the provisions in these terms and conditions.
4.5 The failure of TCS to deliver shall not entitle either party to treat this contract as repudiated.
4.6 TCS shall not be liable for any loss or damage whatsoever due to failure by TCS to deliver the Services (or any of them) promptly or at all, where due to circumstances beyond the control of TCS.
5. Risk
5.1 If TCS retains ownership of the Services nonetheless, all risk for the Services passes to the Customer on delivery.
5.2 It is the intention of TCS and agreed by the Customer that it is the responsibility of the Customer to provide and have erected scaffolding to enable the works to be undertaken (where in TCS’s opinion it is deemed necessary). It is also agreed that all scaffolding erected will comply with industry safety standards and that any person erecting the scaffolding shall be suitably qualified to ensure its safe and proper er****on and where necessary shall hold a current certificate of competency and/or be fully licensed.
5.3 Whilst TCS shall take all reasonable precautions to prevent paint overspray on the Customers property, TCS accepts no liability for any loss, damages or claims howsoever arising as a result of paint overspray.
5.4 The Customer agrees to remove any furniture, furnishings, vehicles, machinery or personal goods from the vicinity of the works and agrees that TCS shall not be liable for any damage caused to those items through the Customers failure to comply with this clause.
5.5 The Customer shall ensure that TCS has clear and free access to the worksite (during all hours allowed by relevant statutory authorities) in order for TCS to complete the works.
5.6 TCS shall be under no liability for inferior existing paintwork where TCS’s paint has bonded to the existing paintwork and weakened the previous paint causing any kind of flake, crack or blemish.
6. Damages
6.1 The Customer shall ensure that TCS has clear and free access to the work site at all times to enable them to undertake the works. TCS 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 TCS.
7. Title
7.1 TCS and Customer agree that ownership of the Services shall not pass until:
(a) the Customer has paid TCS all amounts owing for the particular Services; and
(b) the Customer has met all other obligations due by the Customer to TCS in respect of all contracts between TCS and the Customer.
7.2 Receipt by TCS 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 TCS’s ownership or rights in respect of the Services shall continue.
7.3 It is further agreed that:
(a) until such time as ownership of the Services shall pass from TCS to the Customer TCS may give notice in writing to the Customer to return the Services or any of them to TCS. Upon such notice being given the rights of the Customer to obtain ownership or any other interest in the Services shall cease; and
(b) if the Customer fails to return the Services to TCS then TCS or TCS’s agent may enter upon and into land and premises owned, occupied or used by the Customer, or any premises where the Services are situated as the invitee of the Customer and take possession of the Services, and TCS will not be liable for any reasonable loss or damage suffered as a result of any action by TCS under this clause.
8. Customer’s Disclaimer
8.1 The Customer hereby disclaims any right to rescind, or cancel any contract with TCS or to sue for damages or to claim restitution arising out of any inadvertent misrepresentation made to the Customer by TCS and the Customer acknowledges that the Services are bought relying solely upon the Customer’s skill and judgment.
9. Error and Omissions
9.1 The Customer shall inspect the Services on delivery and shall within five (5) days of delivery notify TCS of any alleged defect, shortage in quantity, errors, omissions or failure to comply with the description or quote. The Customer shall afford TCS an opportunity to inspect the Services within a reasonable time following delivery if the Customer believes the Services are defective in any way. If the Customer shall fail to comply with these provisions, the Services shall be conclusively presumed to be in accordance with the terms and conditions and free from any defect or damage.
9.2 For defective Services, which TCS has agreed in writing that the Customer is entitled to reject, TCS’s liability is limited to either (at TCS’s discretion) replacing the Services or repairing the Services provided that the Customer has complied with the provisions of clause 9.1.
10. Consumer Guarantees Act 1993
10.1 If the Customer is acquiring Services 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 Services by TCS to the Customer.
11. Intellectual Property
11.1 Where TCS has designed, drawn or written Services for the Customer, then the copyright in those designs and drawings and documents shall remain vested in TCS, and shall only be used by the Customer at TCS’s discretion.
11.2 The Customer warrants that all designs or instructions to TCS will not cause TCS to infringe any patent, registered design or trademark in the ex*****on of the Customer’s order and the Customer agrees to indemnify TCS against any action taken by a third party against TCS in respect of any such infringement.
12. Default & Consequences Of Default
12.1 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 one half percent (2.5%) per calendar month (and at TCS’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
12.2 In the event that the Customer’s payment is dishonoured for any reason the Customer shall be liable for any dishonour fees incurred by TCS.
12.3 If the Customer defaults in payment of any invoice when due, the Customer shall indemnify TCS from and against all costs and disbursements incurred by TCS in pursuing the debt including legal costs on a solicitor and own client basis and TCS’s collection agency costs.
12.4 Without prejudice to any other remedies TCS may have, if at any time the Customer is in breach of any obligation (including those relating to payment), TCS may suspend or terminate the supply of Services to the Customer and any of its other obligations under the terms and conditions. TCS will not be liable to the Customer for any loss or damage the Customer suffers because TCS has exercised its rights under this clause.
12.5 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 (up to a maximum of two hundred dollars ($200.00)) shall be levied for administration fees which sum shall become immediately due and payable.
12.6 Without prejudice to TCS’s other remedies at law TCS shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to TCS shall, whether or not due for payment, become immediately payable in the event that:
(a) any money payable to TCS becomes overdue, or in TCS’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.
13. Security And Charge
13.1 Despite anything to the contrary contained herein or any other rights which TCS 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 TCS or TCS’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 TCS (or TCS’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 TCS elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Customer and/or Guarantor shall indemnify TCS from and against all TCS’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 TCS or TCS’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 13.1.
14. Cancellation
14.1 TCS may cancel any contract to which these terms and conditions apply or cancel delivery of Services at any time before the Services are delivered by giving written notice to the Customer. On giving such notice TCS shall repay to the Customer any sums paid in respect of the Price. TCS shall not be liable for any loss or damage whatsoever arising from such cancellation.
14.2 In the event that the Customer cancels delivery of the Services the Customer shall be liable for any loss incurred by TCS (including, but not limited to, any loss of profits) up to the time of cancellation.
15. Privacy Act 1993
15.1 The Customer and the Guarantor/s (if separate to the Customer) authorises TCS 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 TCS from the Customer and/or Guarantors directly or obtained by TCS 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.
15.2 Where the Customer and/or Guarantors are an individual the authorities under clause 15.1 are authorities or consents for the purposes of the Privacy Act 1993.
15.3 The Customer and/or Guarantors shall have the right to request TCS for a copy of the information about the Customer and/or Guarantors retained by TCS and the right to request TCS to correct any incorrect information about the Customer and/or Guarantors held by TCS.
16. Unpaid TCS’s Rights
16.1 Where the Customer has left any item with TCS for repair, modification, exchange or for TCS to perform any other Service in relation to the item and TCS has not received or been tendered the whole of the Price, or the payment has been dishonoured, TCS shall have:
(a) a lien on the item;
(b) the right to retain the item for the Price while TCS is in possession of the item;
(c) a right to sell the item; and
(d) the right to retain all or part of the proceeds of the sale of the item in payment of the Price and any interest due to TCS and any costs associated with such sale.
16.2 The lien of TCS shall continue despite the commencement of proceedings, or judgment for the Price having been obtained.
17. General
17.1 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.
17.2 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.
17.3 TCS 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 TCS of these terms and conditions.
17.4 In the event of any breach of this contract by TCS the remedies of the Customer shall be limited to damages which under no circumstances shall exceed the Price of the Services.
17.5 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 TCS nor to withhold payment of any invoice because part of that invoice is in dispute.
17.6 TCS may license or sub-contract all or any part of its rights and obligations without the Customer’s consent.
17.7 TCS 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 TCS notifies the Customer of such change.
17.8 The provisions of the Contractual Remedies Act 1979 shall apply to this contract as if section 15(d) were omitted from the Contractual Remedies Act 1979.
17.9 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.
17.10 The failure by TCS to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect TCS’s right to subsequently enforce that provision.
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