1.1 The Company will carry out the instructions of the Customer in the services provided to the standard of best practice.
1.2 The Company reserves the right to cease to continue work where the Customer cannot or will not provide clear instructions, or where the Company is of the opinion that the Customer has misled or deceived the Company in any material way.
1.3 The Company will take reasonable steps to keep the Customer informed of the steps taken to carry out the Customer’s instructions.
1.4 By instructing the Company the Customer accepts liability to pay the accounts that the Company will render for work done as required to be done by the Company as the result of the Customer’s instructions together with all disbursements incurred in respect of the Customer’s instructions.
2.1 The Company charges for its work according to the time spent at the rate applicable at the time, and at the cost of all expendibles, materials and work subcontracted to complete the work required in terms of the Customer’s instructions
3. Estimate of Costs
3.1 Often estimates cannot be given. On receiving your order we will have limited knowledge of the work required. Any costs estimate that is given will be the Company’s “best guess” as to what the costs are likely to be. If the work does not proceed as the Company had expected due to unexpected complications, or if the work proves more complicated than originally anticipated, the Company will charge for all additional work.
3.2 If it appears that the estimate will be exceeded, the Company will advise the Customer of the reasons and obtain further instructions from the Customer.
a) All prices for all goods sold by the company to the Customer are subject to alteration without notice and orders are accepted on the understanding that they shall be charged at the price ruling at the time of dispatch.
b) Freight and handling charges are payable on all goods dispatched out of Auckland. Auckland deliveries subject to policy applying at the time of dispatch.
5. Title and passing of Property
Ownership and property in the goods remains with the Company until the buyer has discharged all outstanding indebtedness for all goods supplied by the company. If payment is not made on due date or if the purchaser goes into bankruptcy, liquidation or receivership the company shall without prejudice to any other remedies, be entitled to enter the purchaser’s premises to retake possession of the goods and hold them until payment in full has been received or, at option of the company, to sell them at such a price as the company shall elect (any sum realised by such a sale in excess of the amount due to the company being payable to the Customer).
The risk in the goods supplied shall pass to the Customer as buyer upon delivery and where goods are delivered into the possession of the carrier for consignment to the Customer by boat, air transport, road transport, rail or otherwise the goods shall be deemed to be delivered to the Customer and to be at the Customer’s risk from such time as they have been delivered into the possession of such carrier notwithstanding that the company may pay or bear the freight charges or any part of them. The Customer shall take out all risk insurance to cover any goods in the customer’s possession which remain the property of the company and the interest of the company should be noted on the insurance policy of the Customer.
7. Consumer Guarantees Act 1993 and Non Exclusion of Legal Rights
Where Goods or services are being supplied for the purpose of a business, the Customer agrees that the Consumer Guarantees Act 1993 does not apply. These Terms and Conditions do not and shall not be taken as applying to exclude, or restrict in manner whatsoever:
a) The rights conferred upon the Customer by law and which cannot be lawfully excluded, restricted or modified.
b) The remedies conferred on a Customer as a consumer by law.
c) The exercise of any rights by the Customer as a consumer.
d) Any mandatory condition which cannot be excluded by contract between the parties to a sale of goods.
Wherever any part of these terms and conditions will otherwise be inconsistent with the mandatory requirement of law these Terms and Conditions of Sale shall as far as possible be constructed as to be consistent with such law and to that purpose the extent necessary shall be of no force or effect.
8. Limitation of Liability
8.1 The liability of the company in respect of all claims for loss, damage or injury arising from breach of any of the company’s obligations under this agreement or from any act or omission of the company is limited, in each case, to the lesser of:
(a) Replacement or repair of the affected goods, or re-supply of the services;
(b) Payment of the actual cost of replacing or repairing the affected goods, or re-supplying the services; and
(c) The price of the affected goods or services
8.2 The company shall not be liable for any direct or indirect loss or damage (including without limitation loss of profits or savings or for any indirect or consequential loss or damage), however caused, arising out of or in connection with the supply of Goods or Services by the company, except as set out in clause 8.1.
8.3 No action arising out of the supply of Goods or Services by the company, regardless of form, may be brought more than six months after the Customer becomes aware, or reasonably ought to have become aware, of the circumstances giving rise to the action.
9. Warranties excluded
9.1 All statutory, express or implied warranties by the company including, without limitation, the implied warranties of merchantability and fitness for any particular purpose are expressly excluded (to the extent permitted by law).
10. Credit Policy
10.1 The Customer may be allocated a credit limit and credit term upon the approval of a credit account. It will be:
(1) Confidential between the Customer and the Company
(2) The total amount that the Company will allow be due to it by the Customer at any time;
(3) Able to be increased or decreased or withdrawn by the Company at any time;
(4) The Company has the right to make reasonable and confidential credit enquiries from an appropriate information provider. The Customer and the Guarantor (as appropriate) in signing this agreement permit the Company to make such enquiries.
(5) The Company may stop doing work (and instruct others to stop doing work) for the Customer if the Customer’s credit limit is exceeded or any invoice remains unpaid. The Company will have no liability for any loss suffered by the Customer when work is stopped for this reason.
11. Joint and Several Liability
11.1 If there is more than one person comprising the Customer, each person is jointly and severally liable for payment in due time of all the Company’s accounts and other charges such as those under clause
12. Payment Default
12.1 Interest is payable on any invoice overdue. Interest shall be calculated at the rate of 5% above the Company’s bank overdraft rate applying at the date payment became due.
12.2 If the Company has to take steps to recover any unpaid account, the costs of recovery including all costs for legal work and debt collectors’ charges are all payable by the Customer.
13. Sign on behalf of the company
13.1 Where the name of the person who completed “Signed by and on behalf of the Customer” on the front page of this agreement, then that person personally guarantees full payment of any amount due to the Company from the Customer in terms of this agreement.
14.1 Where work has been done by the Company but the Company has not been paid by the Customer, then the Company has the right to retain the vehicle, equipment or parts on which the Company has been contracted to work. This is known as a lien. The Customer must pay all outstanding invoices, charges and other expenses before the Company releases the Customer’s property.
15. Security for payment
15.1 The Customer grants to the company a security interest in the goods and in any proceeds arising from the sale of the goods to secure the obligations of the Customer to pay the purchase price for the goods, and any other obligations by the Customer to the company under the terms and conditions attached (the “obligations”) as and when the same become due.
15.2 The Customer grants to the company a lien over any of the Customer’s equipment upon which services are performed in order to secure the obligations of the Customer to pay for such services and any other obligations as and when the same become due.
15.3 The Customer agrees that if the Customer is in breach of any of its obligations:
(a) the Customer will, upon receiving a written request from the company and as its own cost and expense, promptly deliver all or any of the goods to the company at such place as the company directs;
(b) the company may (and the Customer grants the company a licence to), at any time without giving notice either itself or through an authorised agent, enter into any place where the goods are located and remove the goods, if the Customer fails to deliver the goods as required under this clause;
(c) The company may sell all or any of the goods without giving prior notice of the sale to the Customer (and to that end, nothing in s114 (1) (a) of the Personal Property Securities Act 1999 (“PPSA”) shall apply to these terms); and
(d) if the company proposes, pursuant to s120 of the PPSA to take all or any of the goods in satisfaction of the obligations, the Customer waives its right to require the company to sell the goods and agrees that notwithstanding s120(1) of the PPSA, the Customer shall remain liable to the company for the difference between the market value of the goods at the time it is first able to be sold by the company free from all rights and interests of the Customer and other persons pursuant to s123(1) of the PPSA and the amount of the obligations which are in default.