1. GENERAL
In this agreement “the Company” means Jace Electrical Services Limited, trading as Jace Electrical Services, its permitted assigns and successors, and where the context permits the entitlements of the Company shall extend to agents, employees or subcontractors of the Company as appropriate. If any provisions of these terms are unenforceable, that term will be deemed modified to the extent necessary to make it enforceable or if modification is impractical, the provision will be deemed deleted but without affecting the remainder of these terms.
These terms may only be varied by the written agreement of the Company. Any notice required to be served by either party shall deemed to have been properly served if left at or posted in a pre-paid letter addressed to the other party at the place of business or residence of such party and any service by post shall be deemed to have been effected when the letter containing such notice would have been delivered in the ordinary course of post. These terms shall be governed by and construed in accordance with the laws of New Zealand.
2. ENTIRE CONTRACT
a) This agreement together with all quotes if supplied, supersede[s] all previous
agreements, understandings, negotiations, representations and warranties
about its subject matter and embodies the entire agreement between the
Company and the customer about its subject matter.
b) The customer acknowledges that no representations and warranties about the
subject matter of this agreement have been made by or on behalf of the
company except as expressly set out in this agreement and that the customer
has not relied on any representations or warranties about the subject matter of
this agreement and the quotes given by or on behalf of the company except
as expressly provided in this agreement
3. PAYMENTS
a) (a) All payments shall be made by the due date of the invoice unless
otherwise arranged in advance and confirmed in writing by the Company.
b) The Company reserves the right to withdraw or refuse credit facilities or to
require payment of a deposit before delivery or services are provided.
c) (c) Interest shall be paid at 10% per month calculated on a monthly basis on
all outstanding amounts from the date on which the payment was due until
actual date of payment. Any expenses, disbursements and costs (including
solicitors fees or debt collection agency fees) incurred by the Company in the
event of customer default are payable by the customer.
d) Payment by bill of exchange or cheque shall not be deemed payment until the
bill of exchange or cheque has been paid by the customer’s banker and
credited to the Company bank account.
e) The Company reserves the right to change the price
(i) if the Goods requested are changed; or
(ii) if the Services originally contracted for are changed ; or
(iii) where additional services are required due to the discovery of hidden or
unidentified difficulties (including, but not limited to, poor weather
conditions, poor access to the site, unavailability of machinery, unsafe
conditions, work by any third party not being completed, hidden building
defects, change of design and/or specifications, hard rock barriers below
the surface or iron reinforcing rods in concrete, hidden pipes and wiring
in walls etc) which are only discovered on commencement of the
services; or
(iv) in the event of increases to the Company in the cost of labour or goods
beyond the Company control
4. SERVICES
“Services” shall include all labour, parts, expenses and sub-contractors’ services
supplied by the Company to you. All invoices rendered shall include services
provided.
5. FREIGHT
All product prices exclude freight charges unless otherwise specified and advised
in writing to the customer. The Company reserves the right to levy a freight
surcharge where urgent delivery is requested by the customer. Under the Contract
and Commercial Law Act all claims for loss of or damage to goods must be made
on the carrier within 30 days from the date of invoice
6. GOODS FOR RETURN defect period
Goods shall only be returned to the Company with its prior written consent and
within 14 days after delivery. Should the Company discover that there is not a
material defect in the goods, the Company may charge the customer a handling
fee. Goods not returned in accordance with the above may be rejected by the
Company All costs for the return or delivery of the goods shall be payable by the
customer.
7. SUPPLY AND DELIVERY
All services supplied shall be deemed to have been supplied when notified by the
Company. If you claim that some services have not been supplied or rendered,
you must notify the Company within 14 days of notification of supply.
a) Any claim by you must be made in writing.
b) Delivery of goods shall be deemed to be affected by the Company delivering
the goods to the delivery address nominated by the customer, whether or not
the customer is present at the time of the delivery to acknowledge receipt.
c) Any claim that goods are not as specified or are not delivered as stated in
the Company invoice must be made to the Company in writing within seven
days of delivery.
d) Goods will not be accepted for return for credit without the Company prior
approval
8. INSURANCE
The Company shall maintain a public liability insurance policy indemnifying the
Company against claims in respect of loss or damage against any property or
injury or death or illness to any of its subcontractors in connections with the
execution of services.
9. ACCURACY OF CUSTOMER’S PLANS AND MEASUREMENTS
a) The Company is entitled to rely on the accuracy of any plans, specifications
and other information provided by the Customer. The Customer
acknowledges and agrees that in the event that any of this information
provided by the Customer is inaccurate the Company accepts no
responsibility for any loss, damages or costs howsoever resulting from these
inaccurate plans, specifications or other information.
b) In the event the Customer gives information relating to measurements and
quantities of goods required in completing the services, it is the Customer’s
responsibility to verify the accuracy of the measurements and quantities
before the Company places an order based on these measurements and
quantities
10. ACCESS
The Customer shall ensure that the Company has unimpeded access to the work
site at all times to enable the Company to deliver goods or services. The
Company 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 Company.
11. UNDERGROUND LOCATIONS
Prior to the Company commencing any work the Customer must advise the Company of the precise location of all underground services on the site and clearly mark the location. The underground mains and services the Customer must identify include, but are not limited to, telephone cables, fibre optic cables, electrical services, gas services, sewer services, pumping services, sewer connections, sewer sludge mains, water mains, irrigations pipes, oil pumping mains and any other services that may be on site. Whilst the Company will take all care to avoid damage to any underground services the Customer agrees to indemnify the Company in respect of all any liability claims, loss, damage, cost and fines as a result of damage to services not precisely located and notified pursuant to this clause.
12. TITLE AND SECURITY (Personal Property Security Act 1999)
Title in any goods supplied by the Company passes to the customer only when
the customer has made payment in full for all goods provided by the Company
and of all other sums due to the Company by the customer on any account
whatsoever. Until all sums due to the Company by the customer have been
paid in full, the Company has a security interest in all goods.
The customer grants to the Company a personal property security in the goods
(by virtue of the Retention of Title clause in these terms) and all goods
previously supplied by The Company to the customer (if any) and all after
acquired goods supplied by The Company to the customer.
The customer agrees to:-
a) Sign any further document and provide any further information which the
customer warrants to be complete, accurate and up-to-date in all respects,
which the Company may reasonably require to register a financing
statement or financing change statement on the personal property
securities register.
b) Not register a financing change statement or a change demand without the
prior written consent of The Company.
c) Give the Company no less than 14 days written notice of any change of
the customer’s name or other change in the customer’s details (including
but not limited to changes in address, facsimile number, trading name or
business practice).
d) Indemnify the Company for any costs incurred by it in relation to the above.
e) Waive any rights to receive a copy of the verification statement under the
Personal Property Securities Act and agrees to the extent permitted by law
that under this contract:-
(i) The customer will have no rights under (or by reference to) Section
114(1) or 133 of the Personal Property Securities Act.
(ii) The provisions of Part 9 of the Personal Property Securities Act which
after the benefit of the customer or place obligations on The Company
will apply only to the extent that they are mandatory.
(iii) Where the Company has rights under this contract additional to those in
Part 9 of the Personal Property Securities Act, those rights will continue
to apply.
In the event the customer refuses to comply with its obligations under the
above clause, then by signing this document the customer grants to The
Company power of attorney to sign all documents giving The Company a
personal property security in the goods. If the goods are attached, fixed or
incorporated into any property of the customer, by way of any manufacturing
or assembling process by the customer or any third party, title in the goods
shall remain with The Company until the customer has made payment for all
goods and where those goods are mixed with other property so as to be part
of or a constituent of any new products, title to these new products shall be
deemed to be assigned to The Company as security for the full satisfaction
by the customer of the full amount owing between The Company and the
customer.
The customer gives irrevocable authority to the Company to enter any
premises occupied by the customer or on which products are situated at any
reasonable time after default by the customer or before default if the
Company believes a default is likely and to remove and repossess any
goods and any other property to which goods are attached or in which goods
are incorporated. The Company shall not be liable for any costs, damages,
expenses or losses incurred by the customer or third party as a result of this
action, nor liable in contract or in tort or in otherwise in any way whatsoever
unless by statute such liability cannot be excluded. The Company may either
resell any repossessed goods and credit the customer’s account with the net
proceeds of sale (after deduction of all repossession, storage, selling and
other costs) or may retain any repossessed goods and credit the customer’s
account with the invoice value less such sum as The Company reasonably
determines on account of wear and tear, depreciation, obsolescence, loss or
profit and costs
13. CONSTRUCTION CONTRACTS ACT 2002
The Customer hereby expressly acknowledges that:
a) The Company 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 schedules 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 Company by a particular date;
and
(iv) The Company 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 Company 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
have 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 it’s right 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 Company 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
Company under Contract and Commercial Law Act or
(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 Company suspending work under this provision.
14. RETURNS, CLAIMS, REFUNDS
The customer shall immediately upon receipt of goods supplied fully inspect
such goods and satisfy itself that the goods are correct. If the customer is
unsatisfied, the customer must immediately contact the Company and
communicate all details of such dissatisfaction. Unless the above procedure is
followed the Company is entitled to assume that the goods supplied are correct
and no returns claims for refunds will be permitted or made.
15. CUSTOMER INFORMATION
In accordance with the Privacy Act 1993 the customer authorises the
Company to obtain such information as it may require in response to their
enquiries from any source in order to determine the customer’s credit
worthiness and to be used as a guide concerning credit limits.
The Company will set a credit limit and reserves the right to alter the credit
limit from time to time. I [the individual] consent to you the Company
collecting, using and disclosing my personal information for the following
purposes:
a) Verifying any information that I give to you (or information that you may
collect from other sources) with third parties and third-party databases,
including Government agencies (for eg. NZ Transport Authority, Motor
Vehicle Register, PPSR).
b) Carrying out credit checks on me with a credit reporting agency for a
purpose of making a credit decision affecting me (including debt
collection) or for the requirements of the Anti-MoneyLaundering and
Countering Financing Terrorism Act 2009. This will require you to give
my information to the credit reporting agency as well as the credit
reporting agency providing information about me to you. (You may also
disclose my positive credit information (including repayment history
information) to a credit reporting agency).
c) Debt recovery including appointing an agent to collect any outstanding
debts and listing defaults with a credit reporting agency.
d) Checking the Ministry of Justice fines database for any overdue fines I
may have. This will require you to give my information to the Ministry of
Justice. This check may be carried out by a credit reporting agency,
which will require the search results to be disclosed to the credit
reporting agency.
e) Verifying any information that I give to you (or information that you may
collect from other sources) with third parties and third-party databases
for the purposes of fraud prevention or the Anti-Money Laundering and
Countering Financing Terrorism Act 2009.
f) Where I have voluntarily given you my driver licence information, this
information may also be disclosed to a credit reporting agency and the
Ministry of Justice as part of the checks you undertake with them.
g) I authorise any third party to provide my personal information to you for
any of these purposes.
h) I understand that if you disclose my personal information to a credit
reporting agency, they may hold my information on their credit reporting
database and use it for providing credit reporting services and for any
other lawful purpose and they may disclose my information to their
subscribers for the purpose of credit checking or debt collection or for
any other lawful purpose.
16. CONSUMER GUARANTEES ACT
Where the Company supplies the goods to the customer for the customer’s use
in a business for the purpose of the business, the customer agrees that the
Consumer Guarantees Act does not apply. Where the Company supplies the
product to a customer as a “consumer” as defined in the Consumer Guarantees
Act for a non-business purpose, the Consumer Guarantees Act will apply and
prevail over any contrary provision in these terms and conditions.
17. WARRANTIES/GUARANTEES
17.1 The Company guarantees that:
a) The Works will conform to the Statement of Work; and
b) The Goods will be free from material defects at the time of installation and
for the period contained in the Manufacturer’s Warranty (“Warranty
Period”).
17.2 The Company guarantees that it will repair or make good any defects in its
Workmanship arising within one year following completion of the Services for
which the defect is claimed, (“Workmanship Guarantee”). This Workmanship
Guarantee is subject to the following conditions:
a) The Workmanship Guarantee does not apply to the Goods provided (for
which the Customer acknowledges clause 13.1 of this agreement applies):
b) The Company’s liability in respect of all claims arising from the
Workmanship Guarantee will be limited to the labour value of the
Workmanship;
c) The Workmanship Guarantee does not cover any occurrence which would
normally be covered by public liability insurance or any other form of
insurance;
d) The Workmanship Guarantee does not apply where alterations or repairs
are made by the Customer or any third party to the Works without the
knowledge and prior written consent of the Company (and without the
Company first having the opportunity to remedy the same to its
satisfaction);
e) The benefit of the Workmanship Guarantee is not assignable by the
Customer to any other person
f) The Workmanship Guarantee does not apply for so long as the Works
have not been completed in full or the Customer is in default in relation to
any payment owing to the Company; and
g) The Workmanship Guarantee does not apply to any appliance service
repair work;
(i) The Workmanship Guarantee does not cover any indirect, special,
incidental or consequential loss or damage, however caused; and
The Company is not liable to carry out any remedial work under the
Workmanship Guarantee unless they receive written notice from the Customer
of the claim within seven days after discovery of the defect.
17.3 The Company will not be liable for any indirect, special, incidental or
consequential loss or damage, however caused.
17.4 The maximum liability of the Company in relation to the supply of Goods and/or
Services will not exceed the amount paid by the customer for those Goods
and/or Services.
18. ERVICES INTERRUPTION
“Services Interruption Event” means any interruption to a Works caused by; a
Force Majeure Event, the Customer’s failure to carry out or perform any
obligation required of it under this agreement which in the sole opinion of the
Company does or may cause a delay in the Works and any other matter which
in the reasonable opinion of the Company will cause an interruption or delay in
the performance of the Works;
18.1 Without prejudice to any other right or remedy of the Company, the parties
acknowledge that from time to time a Services Interruption Event may occur
and, in that case, such occurrence will delay the Works and will entitle the
Company to immediately cease the performance of all or any part of the Works
until the Services Interruption Event ends or is remedied (as the case may be).
The Customer acknowledges that there may be an Additional Expenses
Charge relating to recommencement of the Works after the occurrence of a
Services Interruption Event. The Customer agrees to pay the Additional
Expenses Charge upon rendering of an invoice by the Company.
19. DISPUTES ACCOUNTS
The customer must notify the Company in writing within five days of receipt of
any disputed invoice. The notification must quote the relevant invoice number
and must include all the necessary details of the reason the invoice is being
disputed. Should the customer fail to notify The Company of any dispute, defect
or damage within five days of receipt of the invoice, the customer shall be
deemed to accepted the invoice and shall pay that invoice according to the
terms and conditions contained in this document.
20. CONFIDENTIAL INFORMATION
Each party agrees to always keep the other party’s confidential material
confidential and not to use the confidential material for any purpose other
than for the purpose for which it was supplied or copy or reproduce any of
the confidential material in any way except whether disclosure is necessary
to enable goods or services to be used under lease or where the party that
owns the confidential material has consented to disclosure.
On request each party will ensure that any confidential material (including
any copies) that it possesses or controls and that belongs to the other party
is returned to that other party.
Confidential material means:-
a) All information and other material relating to the Company business,
employees, goods or services which we make available or have
previously made available to you; or
b) Any report or material which we produce as a direct or indirect result of
any work that we carry out for you and anything that you derive from this
information and material but excluding everything which is generally
available to the public or you or a third party have independently
developed or acquired this confidential material.
21. RESOLVING DISPUTES
The Company and the customer will use all reasonable endeavours to resolve
any dispute between them. If they cannot resolve their dispute between them,
they will:-
a) Refer the dispute to mediation which will be conducted in accordance with
the Resolution Institute New Zealand Standard Mediation Agreement; and
b) If mediation is unsuccessful, the matter of dispute shall be referred to a
single arbitrator in accordance with the provisions contained in the
Arbitration Act 1996 and any amendments.
Nothing in this clause will preclude either party from taking immediate steps to
seek urgent equitable relief before an appropriate Court.
22. ASSIGNMENT
The Company is entitled at any time to assign to any other person all or any part
of the debt owing by the customer to the Company.
22. REVIEW OF TERMS
The Company reserves the right to review any of these terms at any time. Any
change will take effect on the next transaction following the date on which the
Company notified the customer of such change
23. INTELLECTUAL PROPERTY
The customer acknowledges that the Company is the sole owner of all
intellectual property (including business know how, ideas, methodologies,
routines, systems and processes relating to or arising, directly or indirectly, out of
the goods and services that the Company supplies to the customer or developed
or contributed to by the Company in relation to any information, fault, repair or
documentation that is supplied to the customer or as a result of the Company
performing services or any other work for the customer. The customer agrees not
to use any trademarks or other intellectual property rights which are legally the
Company except as authorised by the Company.
24. ACKNOWLEDGEMENT AND DECLARATION
I/We sign this declaration as the customer:-
a) Accepting and agreeing to abide by the terms of trade specified above; and
b) Giving the necessary approvals, consents, authorisations under the Privacy
Act 1993; and
c) Acknowledging that a copy of the terms of trade has been received, read and
understood.
d) Agreeing that these terms of trade will apply to all contracts between the
Company and ourselves as the customer
Canterbury, 7675
© 2022 JACE ELECTRICAL RIGHTS RESERVED
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