Accounts
These terms shall apply to all and any dealings between the Contractor and the Purchaser and to all goods and services purchased form the Contractor.
Payment
Payment for the price and any price increases for goods and services shall be made in full without deduction on or before the 20th of the month following date of invoice.
Should the Purchaser fail to tender any payment when due, the Contractor may in addition to any other right charge the Purchaser interest at 10% per annum (calculated on a daily basis) on all overdue amounts (including retentions).
Quotation/Estimates
These terms shall apply to any quotation or estimate given by or on behalf of the Contractor and to any order made with the Contractor. The quotation remains available for acceptance for one month. Prices quoted are based on cost of labour, materials, customs duty, sales tax, transport charges, marine insurance rates, and of conforming to statutory obligations ruling as at the date of this quotation. If between the dates of quotation and completion of the work variations should occur in these costs, the quoted prices will be subject to amendment to provide for such variations. For Labour escalations, base rates will be taken as minimum rates as set by the relevant collective employment agreement unless nominated in the quotation.
Exchange Rates
The price quoted is based on rates of exchange ruling as at the date of this quotation and if any variation to these rates occur prior to payment made to any supplier for goods included in this quotation, such variation will be added to or deducted from the Purchaser’s account.
Retentions
The Purchaser shall hold the agreed percentage retentions in trust in accordance with the Construction Contracts Act 2002 and release such amounts following practical completion or the end of a defects notification period as agreed between the parties. The Contractor agrees to remedy any defects in performance of its obligations as agreed between the parties. All its retentions shall be held in a bank account as cash or such other form of investment complying with the Construction Contracts Act 2002.
Strikes, etc.
No responsibility or liability shall be incurred by the Contractor for delay or damage, caused directly or indirectly by weather conditions, labour disputes, strike, lockout, accident, fire, Act of God or war, pandemic, blockade, embargo, shortage of fuel, power, raw materials or labour, civil commotions, riots, crime or any event (whether of a similar or dissimilar nature) beyond the Contractor’s control.
Ownership
It is a condition of the contract that the Goods and Services provided by the Contractor shall remain and be the sole and absolute property of the Contractor until the contract price, together with all monies payable for extras or other work done (if any) have been paid in full.
Upon default in payment of any progress, final or other payment as and when due, the Contractor may in his discretion with servants, workmen and others, enter upon any premises in which the installation or part of parts thereof may be and remove the same of any part thereof and perform any act reasonably necessary to facilitate such removal and without liability for any loss or damage occasioned thereby and without prejudice to other rights of the Contractor under this contract or otherwise.
Facilities
The Purchaser shall provide at his own cost sufficient safe storage for materials of the Contractor and working space requisite for the efficient performance of the work. The Purchaser shall also provide at his own cost for the uninterrupted use of the Contractor, such light, electricity, or other power and other facilities as may reasonably be required by the Contractor, including the use of telephone and goods and passenger lifts, hoists and builders scaffold, as such facilities exist.
Overtime
Unless specifically stated otherwise, the quotation provides for work being done on week days on ordinary working hours. Should it become necessary to work on other days or after and/or before such hours at the request of the Purchaser, the Purchaser shall be liable and pay the extra cost occasioned thereby.
Extras
Any additional expense made necessary by the Purchaser making any alterations or addition to the building, equipment, appliances, fitting or fixtures after the Contractors survey or by any alteration made to plans where the quotation was based on such plans, or by any delay in the continuity of the work caused by any act or default of the Purchaser, shall be charged for as an extra to the contract caused by the act or default of the Purchaser or by any event outside the control of the Contractor shall be charged.
Occupancy
The building owner or occupier warrants that the occupancy, hazard classifications and storage heights given by him are correct, and that the Contractor will not be liable for any additional costs or any loss or damage occasioned by such information subsequently proving incorrect.
Water Supplies
Although the Contractor will when applicable apply to the local authorities for connection to their water mains, all costs associated with the local authorities connection fees and/or additional requirements will be charged to the clients account.
Trenching
When trenching is applicable this quotation allows for trenching in normal soils only and any obstruction whether natural or man made which creates additional work shall have that additional work charged as an extra. The Contractor will take all care to avoid other services but cannot accept any responsibility for accidental damage to same.
Design
Unless otherwise agreed, before we start work on any design project, we require the following files and documentation to be provided to us:
• Building consent information
• Fire report
• Fire specification (if project has one)
• Revit 3D model (or similar if project has one)
• Full architectural Autocad .dwg files (if no Revit model)
• Latest sprinkler survey / flow test data (if completed)
Any additional requirements or time involved obtaining any / all of the above information will be charged to the Purchasers account at our normal day rates.
Fire Service and Monitoring Fees
The Contractor will where applicable, prepare and lodge documentation of NZ Fire Service and monitoring connections but all fees which form part of a direct contract between the Purchaser, NZ Fire Service and any other monitoring organisations will be payable by the Purchaser.
Damage to Purchaser’s Property
The Contractor may, without admitting any liability, choose to rectify damage to the Purchaser’s property occurring during the work of installation consequent upon any acts or omissions of the Contractor’s employees. Any such rectification shall be made only if such damage is reported by the Purchaser to the Contractor in writing no later than 7 days after its occurrence.
Condition of Premises
The Purchaser warrants that the structure of the premises or equipment in or upon which the Contractor will be working is sound and will sustain the installation and work incidental thereto, and the Contractor shall not be liable for any loss or damage resulting from insufficient or defective foundations, walls or other structures.
Structural Alterations
Unless otherwise specified the quotation does not include any structural or other alteration which may be required by any local body or authority under any statute, regulation or by-law, to any part of the building, appliances, fixture or fittings. The quotation does not allow for Builders Work required to install and make good.
Consents
The Purchaser shall execute all consents or other authorities as may be necessary for the erection of the installation in the premises upon the Terms of Trade, and will obtain the approval and agreement in writing of the Owner, Mortgagee or other person, firm or corporation, as may be required by the Contractor to the performance of the contract.
Insurance
The Contractor shall insure the above mentioned works in course of erection against fire until the completion of the contract, and shall also carry adequate third party insurance against the liability of the Contractor. The Purchaser is responsible for all insurances after the notification in writing by the Contractor at the completion of the contract.
Variation
This contract is made only on the terms and conditions stated herein and such terms and conditions shall prevail over any inconsistent conditions otherwise stated or implied. No variation of the contract or of any condition shall be binding on the Contractor unless it is in writing signed by the parties hereto.
Producer Statements or Compliance Certificates
The Contractor reserves the right to decline to sign Producer Statements or Compliance Certificates if the system or installation is not designed or agreed to by him as complying with building code requirements and or the Purchaser is in default of any provision of this contract including non-payment of all monies due and owing to the Contractor.
Health and Safety
The Purchaser/Owner shall use all reasonable efforts and endeavours to create and maintain a safe and healthy working environment and conditions on the site and to ensure that the site does not breach any of the duties or obligations under the Health and Safety at Work Act 2015. Failure by the Purchaser/Owner to do so will result in the appropriate action by the contractor to ensure conformity with the Health and Safety at Work Act 2015 at the cost of the Purchaser in all respects.
Proposals
The Contractors quotation and/or any proposals or designs are based upon the proposals and design submitted to him or the information given and he cannot certify as to the degree to which the system or design will comply with the requirements of the Building Code or will provide and achieve adequate and appropriate levels of protection.
Confidentiality
The technical pricing and other information contained in the attached submission (information) is proprietary to the Contractor (which expression shall extend to include any related corporations, its contractors and agents) is confidential, trade sensitive and is submitted solely for evaluation purposes and for the purpose of allowing the Contractor to participate in the assessment process (the Purpose). Your acceptance of the submission is an acceptance of the following:
• The information shall be kept strictly confidential and shall not be photocopied or reproduced in any way or otherwise shall be used solely for the Purpose.
• The information shall not be disclosed either directly or indirectly to any third party without the prior consent of the Contractor, including to any competitor of the Contractor and in particular any competition involved in this assessment process, provided that, the information may be released to relevant consultants/principals on a ‘need-to-know’ basis.
• Where, with the Contractor’s consent, the information is disclosed to a third party for a Purpose reasonably connected with the Purpose, it will be a condition that consent (whether so stated or not) that such third party accept and acknowledge to be bound by these confidentiality obligations.
Provisional Sums
Provisional Sums are included in the quotation where accurate costs are unavailable at the time of quoting. The difference between the Provisional Sum stated and the expenditure plus margin shall be an adjustment to the quoted sum.
Collection Expenses
The Purchaser agrees to pay or reimburse the Contractor for all reasonable costs and/or expenses incurred by the Contractor to recover any amount overdue for payment including and without limitation instructing a solicitor and/or debt collection agency. Such costs to be recoverable in full on a solicitor/client basis.
Privacy Act 1993
Pursuant to the provisions of the Privacy Act 1993, the Purchaser authorises any person, agency or company to provide the Contractor with such information as the Contractor may require at any time in response to credit enquiries concerning any aspect of this contract and/or trading account. The Purchaser authorises the Contractor to furnish to any third party details of this application being processed by the Contractor and/or any subsequent details concerning the Contractor’s enquiries.
Personal Property Securities Act 1999 (“PPSA”)
The Purchaser grants to the Contractor a security interest in the following:
All present and after-acquired goods, supplied by the Contractor to the Purchaser.
All present and after-acquired goods supplied by the Contractor to the Purchaser described in any:
• Quotation or tender from the Contractor and the Purchaser including, without limitation, documentation (electronic or otherwise) supplementary to any contract incorporated in the contract reference or otherwise;
• Contract between the Contractor and the Purchaser including, without limitation, documentation (electronic or otherwise) supplementary to any contract incorporated in the contract by reference or otherwise;
• Purchase order or any other order for goods from the Purchaser;
• Dispatch order, invoice, and statement or remittance advice from the Contractor to the Purchaser.
The Contractor may, at its entire discretion allocate any payment (or any portion of it) from the Purchaser to any debt owed by the Purchaser to the Contractor in whatever proportions the Contractor determines. The Contractor’s right to apportion payments between debts owed by the Purchaser applies irrespective of any document supplied by the Purchaser indicating payment is for a particular debt referred to in such document.
At the request of the Contractor, the Purchaser will promptly execute any documents and do anything else required by the Contractor to ensure that any security interest created constitutes a perfected security interest over all personal property supplied by the Contractor until all and any amounts due to the Contractor have been paid in full. This obligation extends to executing any amendments to any contract with the Contractor and providing the information required by the Contractor to complete and register a financing statement.
The Purchaser will not, without prior written consent of the Contractor, agree to allow any person (including the Purchaser) to file a financing statement over any personal property supplied by the Contractor while the Purchaser is liable to the Contractor for any debt. The Purchaser will notify the Contractor immediately if the Purchaser becomes aware of any person taking steps to file a financing charge against any goods or services supplied to the Purchaser by the Contractor.
The parties agree that nothing in sections 114(1) (a), 116, 133 and 134 of the PPSA shall apply to these Terms and Conditions. The Purchaser waives its rights as a debtor under section 120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA. The Purchaser waives their right to receive a verification statement confirming registration of a financing statement or a financing change statement relating to a security interest created by this document. The terms “security interest”, “perfected security interest”, “personal property”, “financing statement” and “financing change statement” referred to in the above clauses have the meanings given by the PPSA.
Warranty Limitations
All warranties, descriptions, representations and conditions to fitness or suitability for any purpose, tolerance to any conditions, merchant ability or otherwise, whether of a like nature or not and whether express or implied by law, trade, custom or otherwise are, to the extent permitted by law, expressly excluded.
No agent or representative of the Contractor is authorised to make any representation, statement, warranties, conditions or agreement not expressly set out in these terms. The Contractor is not in any way bound by any such unauthorised statements nor can such statement be taken to form a contract or part of a contract with the Contractor collateral to this main contract.
The Contractor shall not be obliged to consider any warranty claim relating to defective workmanship and/or materials unless such claim is made in writing within 14 days of the Purchase first reasonable opportunity to inspect the goods/services supplied (which shall be the date of installation) but in any event within 30 days of installation or delivery. Subject as aforesaid the Contractor will replace any product delivered in a defective state as a result of an act or omission by the Contractor and provided the Purchaser is not in breach of any of its contractual obligations and had not attempted to rectify or modify the goods supplied.
Where the Purchaser is purchasing the goods for business purposes, the Purchaser agrees that any guarantees and rights of redress under the Consumer Guarantees Act 1993 do not apply and for the purpose of section 43 of the Consumer Guarantee Act 1993 the parties agree that the provisions of that Act shall not apply to this Agreement.
Liability
The liability of the Contractor whether in tort or contract or otherwise for any loss, damage or injury arising directly from any defect in or non-compliance of the goods/services supplied or any other breach of the Contractor’s obligations shall not in any event exceed an amount equivalent to the replacement value of the goods/services agreed by the Contractor to be defective and within the contract price.
The Contractor shall not be liable for any consequential indirect or special damage or loss of any kind whatsoever. Nor shall it be liable for any damage or loss caused by the Purchaser’s servants, agents, customers or other persons. The person shall indemnify the Contractor against any claim by the Purchaser’s servants, agents customers or other persons in respect of any loss, damage or injury arising from any defect or noncompliance of the goods/services supplied.
As soon as any of the facts or matters which form any part of any claim or claimant whatsoever become known to the Purchaser, the Purchaser shall within 14 days notify the Contractor in writing of the same. Where the Purchaser is purchasing the goods for business purposes, the Purchaser agrees that the provisions of the Consumer Guarantees Act 1993 do not apply to these Terms and Conditions of Trade.
Interpretation
In this contract unless the contacts otherwise provides:
• “Contractor” means Tekin Industries Limited and any other entity authorised to trade under the name of Tekin Industries;
• “Purchaser” means the customer, purchaser and/or owner;
• “Goods” includes any product, equipment, material or other time sold by the Contractor to the Purchaser;
• “Services” include any systems, know how, advice, use of software or other Proprietary material or advisory functions.