Hampden Fence Limited: Terms & Conditions - 2016
TERMS AND CONDITIONS OF TRADE
1.1 “Hampden Fence” shall mean Hampden Fence Limited, its agents or employees thereof.
1.2 “Customer” shall mean the customer, its agents and employees, or any person acting on behalf of and with the authority of the customer, or any person purchasing goods from Hampden Fence.
1.3 “Goods” shall mean all goods, chattels, or services, provided by Hampden Fence to the customer, and shall include without limitation the manufacture, supply and installation of security fencing and gates, earth moving, digging of trenches, the supply of earth moving equipment and services, all charges for labour and work, hire rates, equipment hire, insurance charges, or any fee or charge associated with the supply of goods by Hampden Fence to the customer.
1.4 “Price” shall mean the cost of the goods as agreed between Hampden Fence and the customer subject to clause 4 of this contract.
2.1 Any instructions received by Hampden Fence from the customer for the supply of goods shall constitute acceptance of the terms and conditions contained herein.
3. USE OF INFORMATION
3.1 The customer authorises Hampden Fence to collect, retain and use any information about the customer, or for the purpose of assessing the customer’s credit worthiness, enforcing any rights under this contract, or marketing any goods and services provided by Hampden Fence to any other party.
3.2 The customer authorises Hampden Fence to disclose any information obtained to any person for the purposes set out in clause 3.1.
3.3 Where the customer is a natural person the authorities under clauses 3.1 and 3.2 are authorities or consents for the purposes of the Privacy Act 1993.
4.1 Where no price is stated in writing or agreed to orally the goods shall be deemed to be sold at or hired out at the current amount as such goods are sold or hired out by Hampden Fence at the time of the contract.
4.2 Hire rates shall be as shown on Hampden Fence current schedule (which the customer acknowledges has been produced and agreed to) and such hire rates are calculated on a daily basis whereupon each day shall be deemed to contain 8 working hours and any hours worked in excess of each day shall be charged on a pro rata basis.
5.1 Payment for goods shall be made:
5.1.1 Where the customer has an existing account with Hampden Fence, or has arranged an account with Hampden Fence, the price shall be paid in full on or before the 20th day of the month following the date of the invoice; or
5.1.2 Where the duration of the work extends beyond one month from the date of commencement the price shall be paid in installments each month or part month on or before the 20th day of the month following the date of each monthly invoice; or
5.1.3 Where Hampden Fence has specified the price shall be paid in full within seven (7) days following the the date of the invoice; or
5.1.4 In full on receipt of delivery of goods or completion of work (“the due date”).
5.2 A deposit of 10 to 50 percent may be required at Hampden Fence sole discretion.
5.3 No deduction for retentions is to be made unless expressly agreed to in writing by Hampden Fence.
5.4 Interest may be charged on any amount owing after the due date at the rate of 2.5% per month or part month.
5.5 Any expenses, disbursements and legal costs incurred by Hampden Fence in the enforcement of any rights contained in this contract shall be paid by the customer, including any reasonable solicitor’s fees or debt collection agency fees.
5.6 Receipt of a cheque, bill of exchange, or other negotiable instrument shall not constitute payment until such negotiable instrument is paid in full.
6.1 Where a quotation is given by Hampden Fence for goods:
6.1.1 The quotation shall be valid for ONE HUNDRED (100) days from the date of issue; and
6.1.2 The quotation shall be exclusive of Goods and Services Tax unless specifically stated in writing to the contrary; and
6.1.3 The quotation does not include the cost of: excavation in rock requiring the use of pneumatic or hydraulic equipment for extraction; planking, strutting, shoring or under-pining; locating, diverting or sealing off existing services; setting out of the work; creation of temporary access roads; obtaining permits or consents from the Local Authority or other person; or any extra work or variations to the quotation including without limitation extra work required due to non-disclosure of relevant matters by the customer at the time of quotation, or delays caused by the customer or any other party beyond the control of Hampden Fence.
6.1.4 The work covered by the quotation will be completed and charged within six months of acceptance.
6.2 Where goods are required in addition to the quotation pursuant to clause 6.1.3 of this contract the customer agrees to pay for the additional cost of such goods AND any request to provide additional goods shall be made in writing.
6.3 Should there be an extreme movement in cost due to a movement in exchange rate, the inability of a supplier to supply, or any other event that materially affects the cost of the project, Hampden Fence reserves the right to renegotiate the quotation.
7. WARRANTIES BY CUSTOMER
7.1 The customer warrants that:
7.1.1 It has and shall continue to provide Hampden Fence with all information and assistance relevant to the carrying out of work that is the matter of this contract; and
7.1.2 It has obtained all necessary resource consents from the relevant Local Authority and has informed Hampden Fence of all matters relating to such consents; and
7.1.3 Prior to commencement of any work it shall mark all boundaries of the land where work is to proceed AND mark all areas of such land where work is required AND shall inform Hampden Fence of all such markings AND point out to the driver of any machine or vehicle about to execute or executing the work where work is to be executed and the extent of the work to be carried out, and if any spoil is to be removed, the place where it is to be deposited; and
7.1.4 It has located, marked and advised Hampden Fence of all gas pipes, water pipes, sewage lines, drainage lines, telephone cabling, and other utilities that are on, or near, or adjacent to the land upon which any work is to proceed; and
7.1.5 It has advised Hampden Fence of any possibility of or knowledge of any subsidence, slip, erosion, flooding, or any other thing which might constitute a hazard on the land where work is to proceed or on any adjacent land; and
8.1 If the goods are ascertained and in a deliverable state, title in the goods passes to the customer when the customer has made payment in full for all goods supplied by Hampden Fence.
8.2 Where the customer has not paid for any goods in its possession equitably and legal title in such goods shall remain with Hampden Fence until payment in full. The goods shall be held by the customer as bailee.
8.3 The customer gives irrevocable authority to Hampden Fence to enter any premises occupied by the customer, at any reasonable time, to remove any goods not paid for in full by the customer. Hampden Fence shall not be liable for costs, damages or expenses or any other losses incurred by the customer or any third party as a result of this action, nor liable in contract or in tort or otherwise in any way whatsoever.
9.1 The time agreed for completion of the contract or part of the contract shall not be an essential term of this contract and Hampden Fence shall not be responsible for any reasonable delay to completion of the contract and time shall not be deemed of the essence.
9.2 Where Hampden Fence has contracted to complete work by installments and Hampden Fence fails to complete one or more installments the customer shall not have the right to repudiate the contract but shall have the right to claim compensation as a severable breach.
10. SUBCONTRACTORS AND AGENCY
10.1 The customer authorises Hampden Fence to contract either as principal or agent for any work or part of the work forming the matter of this contract.
10.2 Where Hampden Fence enters into a contract of the type referred to in clause 8.1 it shall be read with and form part of this agreement and the customer agrees to pay any amounts due under that contract.
11. DAMAGE, LOSS AND COMPANY WAIVER
11.1 Except as otherwise provided by statute the customer shall be liable for any loss or damage to any equipment hired howsoever caused and shall pay to Hampden Fence the cost of making good the repair to the equipment or the cost of replacing the equipment whichever is the lesser.
11.2 The customer indemnifies Hampden Fence in respect of loss or damage to equipment due to or arising from; misuse, abuse or overloading; mysterious disappearance or wrongful conversion; any breach of the terms of this contract; violation of any laws; location, use, loading, unloading or transportation on or over water, wharves, bridges or vessels of any kind; exposure to any corrosive substances (including cautic, cyanide, acids, salt water); theft where not reasonably locked and secured; transportation (except where transported by Hampden Fence); negligence by the customer.
12. CONSUMER GUARANTEES ACT
12.1 The guarantees contained in the Consumer Guarantees Act 1993 are excluded where the customer acquires goods or services from Hampden Fence for the purposes of a business in terms of section 2 and 43 of that Act.
13. EXCLUSION OF WARRANTIES BY COMPANY
13.1 No representation, condition, warranty. or premise expressed or implied by law or otherwise applies to goods except where goods are supplied pursuant to the Consumer Guarantees Act 1993 or except where expressly stated in this contract.
13.2 Hampden Fence does not provide any warranty or promise as to conditions, state of repair, or that the goods are fit and suitable for the purpose for which they are required by the customer and shall not be liable if they are not unless expressly agreed to in writing by Hampden Fence.
13.3 Any Warranty agreed to will only be valid if all invoices have been paid in full and on time.
14. PERSONAL GUARANTEE OF COMPANY DIRECTORS OR TRUSTEES
14.1 If the customer is a company or trust, the director(s) or trustee(s) signing this contract, in consideration for Hampden Fence agreeing to supply goods and grant credit to the customer, also sign in their personal capacity and jointly and severally personally guarantee and undertake to Hampden Fence the payment of any and all other monies now or hereafter owed by the customer to Hampden Fence. Any personal guarantee made by any party shall not exclude the customer in any way whatsoever from the liabilities and obligations contained in this contract. The guarantors and customer shall be jointly and severally liable under the terms and conditions of this contract.
15. MISCELLANEOUS PROVISIONS
15.1 The law of New Zealand shall apply to this contract except to the extent expressly negatived or varied by this contract.
15.2 Where the terms of this contract are at variance with the order or instruction from the customer, this contract shall prevail.
15.3 Failure by Hampden Fence to enforce any of the terms and condition contained in this contract shall not be deemed to be a waiver of any of the rights or obligations Hampden Fence has under this contract.
15.4 Hampden Fence shall, without any liability, and without any prejudice to any other right it has in law or equity, have the right by notice to suspend or cancel in whole or in part any contract for the supply of goods to the customer if the customer fails to pay any money owing after the due date or the customer commits an act of bankruptcy as defined in section 19 of the Insolvency Act 1967.
15.5 Any cancellation or suspension under clause 14.4 of this agreement shall not effect Hampden Fence claim for money due at the time of cancellation or suspension or for damages for any breach of any terms of this contract.
15.6 Hampden Fence shall not be liable for delay or failure to perform its obligations if the cause of the delay or failure is beyond its control.
15.7 The customer shall not assign all or any of its rights or obligations under this contract without the written consent of Hampden Fence.
15.8 If any provision of this contract shall be invalid, void or illegal or unenforceable the validity existence, legality and unenforceability of the remaining provisions shall not be affected, prejudiced or impaired.
15.9 Any dispute between the parties is to be dealt with in accordance with the Arbitration Act 1996.
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