Terms of Trade
Last updated: October 5, 2020
The following are definitions of terms used in these Terms of Trade:
- CCA means the Construction Contracts Act 2002.
- We, Us or Our means German Master Painters Limited.
- You or Your means you as the customer and as set out in the Quote or in any other form of instruction provided by You. Where You are more than one person or entity, those persons or entities will be jointly and severally liable under these Terms of Trade.
- Materials means all goods, products and materials supplied by Us in carrying out the Services.
- Price means the amount payable by You to Us for the supply of the Services and is exclusive of GST unless otherwise stated.
- Services means all services supplied by Us, such services including, but not limited to, preparation, gib fixing, stopping, sanding, painting and finishing, wallpapering and decorative finishes. at a location specified by You, travel and associated costs, and includes all Materials supplied by Us in carrying out the Services where the context requires.
- PPSA means Personal Property Securities Act 1999.
- Quote means a quotation for the cost of the supply of Services provided by Us to You and which specifies the Services to be supplied and the site where they are to be carried out, the Price and due date for payment of the Price.
- Variation means a variation to the Services in accordance with clauses 11 – 14.
- Variation Quote means a variation quote provided by Us to You in accordance with clause 12.
- If You accept Our Quote or otherwise instruct us to supply Services to You or a third party, you agree to accept these Terms of Trade which will be binding on You. For the avoidance of doubt if we commence work on your verbal or other instruction, but you do not sign or provide written acceptance of our Quote then that commencement of work will be taken as confirmation of your acceptance of these Terms of Trade.
- If We provide You with a Quote:
2.1 The Quote will remain valid for acceptance by You for 28 days from the date of the Quote, unless otherwise stated in the Quote.
2.2 All amounts on the Quote will be exclusive of GST, unless otherwise stated.
2.3 The Quote may include a deposit payable by You on acceptance of the Quote and in these circumstances, acceptance of the Quote is not complete until payment of the deposit is received by Us.
2.4 The Quote is subject to final measurement confimed on site. The accuracy of any information You provide to Us and should such information not be accurate resulting in an increase in the costs to Us then such increase will be passed to You and reflected in our price.
2.5 The Quote is subject to incidental goods and services costs and disbursements (including but not limited to materials). Where Services are carried out on a time charge basis We may purchase such incidental goods and / or services as are reasonably required for Us to perform the Services. The cost of obtaining such incidental goods or services shall be payable by You.
2.6 If the Quote is incorrect due to circumstances out of Our control or clerical error, We reserve the right to amend the Quote at any time.
PRICE AND PAYMENTS
- If We do not provide a Quote to You for which you validly accept, the Price will be the cost for providing the Services at the time that We supply the Services.
- If We do provide a Quote to You then subject to acceptance of the Quote, the Price will be the amount specified in the Quote, subject to any agreed Variation in accordance with clauses 11 – 13.
- We will issue you with invoices in respect of the Price:
5.1 For any deposit payable if specified in the Quote or otherwise agreed;
5.2 On completion of the supply of the Services;
5.3 On termination in accordance with clause 28 or 29;
5.4 On suspension of the Services in accordance with clause 8;
5.5 Where the supply of the Services is ongoing, at our sole discretion by interim invoices following end of calendar months.
- You agree to pay to Us:
6.1 the amounts specified on our invoices within 7 days of the date of the Invoice, or such other date as specified in the Quote or as otherwise agreed between You and Us in writing.
6.2 interest on any amount you owe to Us after its due date at 2.5% per annum and expenses and costs incurred by Us as a result of Us enforcing any of our rights contained in these Terms of Trade including, but not limited to PPSR registration and maintenance fees, debt collection and legal fees.
- You acknowledge that our invoices may be in the form of a payment claim (as that term is defined in the CCA) and that any payment schedule provided by You must be for the purposes of section 22 of the CCA, provided within 7 days of the date of Our payment claim, or such other date as agreed by Us in writing.
- All payments You are required to make to Us under clause 7 are essential terms of these Terms of Trade and you acknowledge that if you fail to make any such payment to Us by its due date, then in accordance with clause 24A of the CCA we have the right to suspend the provision of Services and We will not be liable for any loss or damage suffered by You or any third party as a result of such suspension.
OUR PROVISION OF SERVICES
- Upon your valid acceptance of a Quote or otherwise upon your instruction to us to supply Services, We will:
9.1 provide the Services as soon as is reasonably possible and in accordance with these Terms of Trade and New Zealand law;
9.2 exercise reasonable care, skill and diligence;
9.3 use suitably skilled, experienced and qualified personnel to carry out the Services.
- You acknowledge that:
10.1 our provision of the Services may be delayed by events beyond Our control including but not limited to Your failure to have the location where the Services are to be carried out ready or Your failure to provide us with access to such location; and
10.2 any date given by Us to You as a date that we will provide the Services is an estimate only and We will not be liable for any loss suffered by You or a third party to provide the Services on that date.
10.3 Notwithstanding clause 10.1, We are entitled (without liability to You) to delay, vary or cancel the performance of any of Our obligations if and to the extent that We are prevented from, hindered in or delayed in the performance of any of Our obligations through any circumstances beyond Our control including acts of God, governmental actions, strikes or other labour disputes (whether or not relating to Our workforce), lock-outs, accidents, war or national emergency, acts of terrorism, protests, riot, civil commotion, explosion, flood, epidemic, fire, natural disasters, earthquakes, adverse weather, reduction in or unavailability of energy sources, breakdown of plant or machinery, restrictions or delays affecting delivery of the Services, default of suppliers or subcontractors, shortage or unavailability of materials from normal sources of supply or the amendment or coming into force of any regulatory provision affecting the production of Materials.
- You may order a Variation to the Services as set out in our Quote or as otherwise instructed by You to:
11.1 Increase or decrease the quantity of Services;
11.2 Omit any part of the Services;
11.3 Change the character or quality of any Materials.
11.4 Change the order in which the Services are to be completed;
11.5 Change the timeframe for delivery and / or completing of the Services.
- Upon receipt of your order for a Variation, We will provide you with a Variation Quote.
- Once You agree to the Variation Quote and communicate that in writing to Us, that Variation will form part of the Services.
CONSENTS, ACCESS, HEALTH AND SAFETY
- You are solely responsible for:
14.1 obtaining any necessary consents, approvals, inspections and specialist reports from local authority bodies and / or any specialists, including any subsequent consents/inspections/approvals/specialists reports deemed required after the Services have already commenced, and ensuring compliance with all laws and regulations which affect the Services We supply to You;
14.2 ensuring that any location where we are supplying the Services complies with all relevant health and safety laws, regulations and requirements, is adequately secure to protect our equipment, has adequate clear access, and the availability of all facilities reasonably required for Our provision of the Services to you;
14.3 ensuring You advise Us prior to the Services being supplied, of any hazards and where we are supplying the Services to You for the purposes of trade or a business, that you indemnify Us against any breach by You of relevant health and safety laws, regulations and requirements. For the avoidance of doubt you agree and acknowledge that We have not and will not assume any duty pursuant to the Health and Safety at Work Act 2015 arising out of this engagement and that for the purposes of this Act We will not at any time have management or control of the workplace.
14.4 ensuring that any plans, reports or specifications You provide to Us and for which the supply of Services are based on are accurate and complete.
14.5 with respect to any additional works which are not included in the Services subject to this contract between You and Us, You may enter into separate contracts with persons other than Us for any such additional works to be carried out on the Site, however You must ensure that We are indemnified for any delays and/or costs suffered due to any act or omission by any separate contractor, the effect of which shall be treated as a Variation; and
14.6 advising us in writing of anything that may materially affect the scope or timing of the Services.
- You shall indemnify Us against any loss suffered by Us or liability incurred by us in respect of any breach of your obligations under clause 14.
RENTENTION OF TITLE, RISK and PPSA
- You agree that title to any Materials will not pass to You until You have paid Us in full the Price.
- Despite clause 16, risk in the Materials will pass to You as soon as the Materials are delivered to the site where the Services are to be carried out.
- If the Materials are damaged or destroyed following our delivery of them, but prior to title passing to You, You agree that We are entitled to all insurance proceeds made in respect of the Materials.
- You agree that We hold a security interest (as that term is defined in the PPSA) pursuant to clause 16, in the Materials until such time that we have received all amounts owing by You to Us.
- You further agree:
20.1 To authorise Us to register a financing statement and charge on the Personal Properties Security Register and sign any further documents and/or provide any further information which We require to register a financing statement or financing change statement; and
20.2 You will not register a financing change statement or change demand without Our prior written consent;
20.3 You waive any rights You may have under sections 116, 120(2), 121,125, 126, 127, 129, 131 and 132 of the PPSA.
20.4 Nothing in sections 113, 114(1)(a), 117(1)(c), 133 and 134 of the PPSA apply to these Terms of Trade.
20.5 You waive Your rights to receive a verification statement in accordance with section 148 of the PPSA.
- You agree that We may withhold providing You with any producer statement, certification, or warranty documentation which relates to Our supply of Services until such time that we have received all amounts owing by You to Us.
DEFECTIVE MATERIALS / WORKMANSHIP AND LIABILITY
- You must inspect the Services on or before completion of the supply of Services and notify us within 21 days of that date (time being of the essence) if there are any alleged defects or failure to comply with the Quote or other agreed Services. If You fail to comply with this provision, then the Services shall be presumed to be free from any defects or non-compliance.
- If you notify us within the time period set out in clause 22, and We agree in writing that You are entitled to reject the Materials, then We will, at our sole discretion:
23.1 Re-supply the defective or non-compliant Services (or the part of the Services); or
23.2 Pay You the costs of having the defective or non-compliant Services (or the part of the Services), supplied again.
- Clauses 22 and 23 are subject to any manufacturers’ warranties for the Materials. Where we provide you with a manufacturer’s warranty, then the warranty shall be the current warranty provided by the manufacturer of the Materials.
- The warranties under these clauses 22 to 25, or any other warranties We are required to give at law, shall not cover any defect or damage which may be caused or partly caused by or arise through:
a. Failure on Your part to follow any instructions or guidelines provided by Us on using and maintaining the Materials; and
b. Any use of the Materials otherwise than in accordance with their intended use; and
c. The continued use of any Materials after any defect becomes apparent or would have become apparent to a reasonably prudent person.
- If We are supplying the Services to You for the purposes of trade or a business you agree that the provisions of the Fair Trading Act 1986, the Consumer Guarantees Act 1993 and any other applicable customer protection legislation do not apply to the extent permissible by law and to the maximum extent permitted by law our warranties are limited to those set out in these Terms of Trade, and all other conditions, guarantees or warranties whether expressed or implied by statute or otherwise (including any warranty under the Contract and Commercial Law Act 2017) are expressly excluded.
- Unless specified in writing, We give no warranty express or implied as to the quality, description or fitness for any particular purpose of the Materials and Services. Notwithstanding this, if the Consumer Guarantees Act 1993 applies to the supply of Services, You have all of the rights and remedies provided under that Act.
- You may terminate our supply of Services at any time by giving written notice to Us, but You will remain liable to Us for any costs and losses incurred by Us including but not limited to loss of profits as a result of such termination. Upon such termination, we will issue You with an invoice to reflect any costs and losses incurred by Us and a proportion of the Price reflective of the partial supply of Services (if any).
- We may terminate these Terms of Trade immediately, if:
29.1 You are bankrupted, insolvent, under statutory management or put into liquidation;
29.2 A court judgment entered against You remains unsatisfied for 7 days;
29.3 Any suspension in accordance with clause 8 remains in place due to non-payment for 2 months or more.
- Termination under these clauses 28 and 29 (or suspension under clause 8) will not affect Our rights at the time of termination or suspension, to claim any amount due to Us, damages, or any other losses or costs suffered by Us.
PRIVACY AND GENERAL
- You authorise Us to:
31.1 collect, retain and use Your personal information, for the purposes of supply the Services and marketing other products and services to You; and
31.2 disclose Your personal information whether obtained directly or from any other source to any credit reporting agency for the purposes of debt collection.
- Any notice given under these Terms of Trade must be given by email to the addresses set out in the Quote or as otherwise notified in writing.
- You may not assign or transfer your rights or obligations under these Terms of Trade to any other party without Our written consent.
- We may subcontract or assign any of our rights or obligations under these Terms of Trade to any other party without Your written consent.
- Where You have engaged us to perform Services to a third party (the Principal) then Our liability to the Principal is limited and You warrant that You are the Principal’s agent for the purposes of this Contract.
- If any of these Terms of Trade are determined to be invalid, void, illegal or unenforceable, the remaining terms will remain valid and binding
- These Terms of Trade together with the Quote (if validly accepted by You) and any Variation (if applicable) supersede all prior agreements, representations and warranties.
- These Terms of Trade apply to any current instruction and to any future instruction, whether or not we send you another copy of them. Notwithstanding, You acknowledge that We may amend these Terms of Trade from time to time as we see fit.
- The parties must use best efforts to resolve any dispute under, or in connection with, this Terms of Trade through good faith negotiations.
40.In the event that resolution by good faith negotiations is not achieved to the satisfaction of both parties within 30 days of the dispute arising, such dispute will be referred to mediation or to the Disputes Tribunal (as may be appropriate) for resolution.
- In the event that resolution is not achieved through mediation then either party may choose to refer the dispute to arbitration in accordance with the provisions of the Arbitration Act 1996.
- This clause does not affect either party’s right to seek relief from any court.
WORK, MATERIALS AND DESIGNS SUPPLIED BY YOU
- If We agree that You are to be responsible for completing any part of any works relating to the Services or You are to supply any materials or designs for the Services, then:
43.1 You warrant that any such designs including any plans and specifications supplied are of a professional standard and are in accordance with and comply with all laws and legal requirements.
43.2 Such works to be completed by You and/or materials or designs to be supplied by You are excluded from Our responsibility. You indemnify Us from any liability relating to or caused by faulty works, materials or designs which are Your responsibility.
43.3 You complete the agreed works and supply the agreed materials and designs within the time reasonably required by Us, otherwise We have the right to complete such work or supply such materials or designs Ourselves and to demand payment for such work or materials or designs as a Variation.
43.4 If any additions to Our Services set out under the specifications are required as a result of any work completed by You, or as a result of any materials or designs supplied by You, or as a result of any such delay caused to Us by You, the additions to the Services may be carried out by Us and the costs will be charged to You as a Variation.
43.5 We are not responsible for any damage done to any of Your works, such damage caused by You or Your agents during the completion of Your works.
PERSONAL GUARANTEE OF COMPANY DIRECTORS OR TRUSTEES
- Where You are a company or trust, the director(s), trustee(s) or authorised person(s) accepting the Quote and these Terms of Trade unconditionally guarantee, as principal debtor, to Us the due and punctual payment by You of all moneys owing to Us and the due observance and performance by You of all of Your obligations under these Terms of Trade, in consideration for Us agreeing to supply the Services and/or Materials to You.
- Despite the termination of Our supply of Services to You, the guarantee in clause 44 is an irrevocable and continuing guarantee and remains in full force and effect until You have paid all monies owing to Us.