TERMS & CONDITIONS OF TRADE
6.1 Where a quotation is given by Smith’s for goods:
7.1 The customer warrants that it has and shall continue to provide Smith’s with all information and assistance relevant to the carrying out of work that is the matter of this contract.
8.1 Smith’s shall not be responsible for any part delivery, or delay in delivery, of the goods as a result of events occurring beyond Smith’s control. Smith’s shall not be responsible for any direct or consequential loss or damage arising from such delay or non delivery.
8.2 Where Smith’s has contracted to complete work by installments and Smith’s 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 in respect of that installment.
9.1 The customer authorises Smith’s to contract either as principal or agent for any work or part of the work forming the matter of this contract.
9.2 Where Smith’s enters into a contract of the type referred to in clause 9.1 shall be read with and form part of this contract and the customer agrees to pay any amounts due under that contract.
10.1 Except as otherwise provided by statute or clause 10 of this contract, Smith’s shall not be liable for:
11.1 The guarantees contained in the Consumer Guarantees Act 1993 are excluded where the customer acquires goods or services from Smith’s for the purposes of a business in terms of sections 2 and 43 of that Act.
13.1 In the event that the Customer is a limited liability Company, the directors of the Company personally guarantee the payment of the account and directors of the Company acknowledge that they have signed the below declaration on behalf of the Company
14.1 The law of New Zealand shall apply to this contract except to the extent expressly negated or varied by this contract.
14.2 Where the terms of this contract are at variance with the order or instruction from the customer, this contract shall prevail.
14.3 Failure by Smith’s to enforce any of the terms and conditions contained in this contract shall not be deemed to be a waiver of any of the rights or obligations Smith’s has under this contract.
14.4 Any personal guarantee made by any third 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.
14.5 Smith’s 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 7 of the Insolvency Act 2006.
14.6 Any cancellation or suspension under clause 14.5 of this contract shall not affect Smith’s claim for money due at the time of cancellation or suspension or for damages for any breach of any terms of this contract.
14.7 Smith’s shall not be liable for delay or failure to perform its obligations if the cause of the delay or failure is beyond its control.
14.8 The customer shall not assign all or any of its rights or obligations under this contract without the written consent of Smith’s.
14.9 If any provision of this contract shall be invalid, void or illegal or unenforceable, the validity evidence, legality and enforceable of the remaining provisions shall not be affected, prejudiced or impaired.
14.10 Any dispute between the parties is to be dealt with in accordance with the Arbitration Act 1996.
15.1 The risk in any goods supplied by Smith’s shall pass to the customer upon those goods leaving Smith’s premises, unless otherwise specified.
15.2 Title on property and any goods and services supplied by Smith’s shall remain with Smith’s until the Customer has paid in full for the goods and services supplied.
15.3 Until paid for, any goods supplied are held by the customer as bailee and as agent for Smith’s, and the Customer may not sell, dispose of, or charge the goods.
15.4 Where the goods or any part of them are completely or partly attached to any other equipment or structure, Smith’s may nonetheless disconnect and remove the goods.
15.5 In the event that goods supplied are being incorporated or changed into any other product (altered product) the Customer agrees that title and property in the altered product shall vest in Smith’s until the Customer has paid in full the goods supplied.
15.6 The Customer irrevocably grants Smith’s a license to enter onto the premises occupied by the Customer without notice and search for and remove any unpaid goods or unaltered products. Customer indemnifies Smith’s on demand in respecting of any costs or liabilities by Smith’s in exercising its rights under this Clause.
15.7 If any goods are sold by the Customer prior to payment of the full amount, Smith’s portion of the sale price which is due to Smith’s shall be the property of Smith’s. That amount shall be held by the Customer on trust for and on account of Smith’s.
16.1 The Customer grants to Smith’s a Security Interest in the goods and their Proceeds to secure the obligation of the Customer to pay the purchase price of the goods and any other obligations of the Customer to Smith’s under this contract (together “the Indebtedness”) and, where the goods and/or Proceeds are not readily identifiable and/or traceable or their recoverable value is insufficient to pay the indebtedness, the security interest shall also extend to all the Customer’s present and after acquired property, of which the goods form part, to the extent required to secure the indebtedness.
16.2 As and when required by Smith’s the Customer shall, at its own expense, provide all reasonable assistance and relevant information to enable Smith’s to register a Financing Statement or Financing Change Statement and generally to obtain, maintain, register and enforce Smith’s’s Security Interest in respect of the goods required, in accordance with the Personal Property Securities Act 1999 (“PPSA”).
16.3 The Customer shall not change its name without first notifying Smith’s of the new name not less than 7 days before the change takes effect.
16.4 Notwithstanding any reference to a particular invoice/order, where any sum remains outstanding by the Customer on more than one invoice/order, any payments received from the Customer shall be deemed to be made by the Customer and applied by Smith’s in respect that each unpaid invoice/order on a pro rata basis PROVIDED THAT where Smith’s applies payments in this manner it shall not charge interest on overdue balances that would have been cleared if the payments were not allocated pro rata.
16.5 Until the Customer has paid all money owing to Smith’s, the Customer shall at all times ensure that:
16.5.1 The goods supply by Smith’s while in the Customer’s possession can be readily identified and distinguished; and/or
16.5.2 All Proceeds (in whatever form) that the Customer receives from the sale of any of the goods are readily Identifiable and Traceable.
16.6 Where the goods are purchased by the Customer as stock in trade for sale or lease in the ordinary course of the Customer’s business, nothing in this clause shall prevent the Customer from selling or leasing and delivering the goods in the ordinary course of the Customer’s business. Otherwise, until the Customer has paid all money owing to Smith’s, the Customer shall not sell or grant a Security Interest in the goods without Smith’s written consent.
16.7 The parties agree to contract-out of the PPSA in accordance with Section 107 of the PPSA to the extent that Section 107 applies for the benefit of, and does not impose a burden on, Smith’s. The Customer waives its right to receive a Verification Statement in respect of any Financing Statement or Financing Change Statement registered by or on behalf of Smith’s in respect of the Security Interest created by these terms and conditions of trade.
16.8 For the purpose of this clause, words and phrases starting with a capital letter shall have the respective meanings given to them under, or in context of, the PPSA.
- DEFINITIONS
- “Smith’s” shall mean Smith’s Painting Contractors Limited, its agents or employees thereof.
- “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 Smith’s.
- “Goods” shall mean all goods, chattels, or services, provided by Smith’s to the customer, including without limitation, all charges for labour and work, insurance charges, or any fee or charge associated with the supply of goods by Smith’s to the customer.
- “Price” shall mean the cost of the goods as agreed between Smith’s and the customer subject to clause 4 of this contract.
- Words referring to one gender include the other genders and singular words include the plural and vice versa
- ACCEPTANCE
- Any instructions received by Smith’s from the customer for the supply of goods shall constitute acceptance of the terms and conditions contained herein.
- USE OF INFORMATION
- The customer authorises Smith’s 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 Smith’s to any other party.
- The customer authorises Smith’s to disclose any information obtained to any person for the purposes set out in clause 3.1.
- 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.
- PRICE
- Where no price is stated in writing or agreed to orally the goods shall be deemed to be sold at the current amount as such goods are sold by Smith’s at the time of the contract.
- The price may be increased by the amount of any reasonable increase in the cost of supply of the goods that is beyond the control of Smith’s between the date of the contract and delivery of the goods.
- PAYMENT
- Payment for goods shall be made in full on or before the 20th day of the month following the date of the invoice, or on receipt of delivery of goods, whichever is the earlier (“the due date”).
- Interest may be charged on any amount owing after the due date at the rate of 2% per month or part month.
- Any expenses, disbursements and legal costs incurred by Smith’s 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.
- Receipt of a cheque, bill of exchange, or other negotiable instrument shall not constitute payment until such negotiable instrument is paid in full.
- QUOTATION
6.1 Where a quotation is given by Smith’s for goods:
- The quotation shall be valid for thirty (30) days from the date of issue; and
- The quotation shall be exclusive of Goods and Services Tax unless specifically stated in writing to the contrary.
- WARRANTIES BY THE CUSTOMER
7.1 The customer warrants that it has and shall continue to provide Smith’s with all information and assistance relevant to the carrying out of work that is the matter of this contract.
- DELAY AND DELIVERY
8.1 Smith’s shall not be responsible for any part delivery, or delay in delivery, of the goods as a result of events occurring beyond Smith’s control. Smith’s shall not be responsible for any direct or consequential loss or damage arising from such delay or non delivery.
8.2 Where Smith’s has contracted to complete work by installments and Smith’s 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 in respect of that installment.
- SUBCONTRACTORS AND AGENCY
9.1 The customer authorises Smith’s to contract either as principal or agent for any work or part of the work forming the matter of this contract.
9.2 Where Smith’s enters into a contract of the type referred to in clause 9.1 shall be read with and form part of this contract and the customer agrees to pay any amounts due under that contract.
- LIABILITY
10.1 Except as otherwise provided by statute or clause 10 of this contract, Smith’s shall not be liable for:
- Any loss or damage of any kind whatsoever whether suffered or incurred by the customer or any other person whether such loss or damage arises directly or indirectly from goods or services or work or advice provided by Smith’s to the customer;
- Except as provided in this contract, Smith’s shall not be liable in contract, or in tort, or otherwise for any loss, damage, or injury beyond the value of the goods provided by Smith’s to the customer;
- The customer shall indemnify Smith’s against all claims of any kind whatsoever however caused or arising and without limiting the generality of the foregoing of this clause whether caused or arising as a result of the negligence of Smith’s or otherwise, brought by any person in connection with any matter, act, omission, or error by Smith’s its agents or employees in connection with the goods;
- Notwithstanding clause 10.1.2 Smith’s shall not be liable for any loss, cost or expense, in contract, tort or otherwise suffered or incurred by the Customer or any third party where such loss cost or expense is either partially or wholly attributable to defects (latent or otherwise) in any surface, coats or structure for which Smith’s is not responsible; and
- In no circumstances shall Smith’s be responsible for any consequential loss suffered by the Customer, or any third party.
- CONSUMER GUARANTEES ACT
11.1 The guarantees contained in the Consumer Guarantees Act 1993 are excluded where the customer acquires goods or services from Smith’s for the purposes of a business in terms of sections 2 and 43 of that Act.
- EXCLUSION OF WARRANTIES BY COMPANY
- 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.
- DIRECTORS PERSONAL GUARANTEE
13.1 In the event that the Customer is a limited liability Company, the directors of the Company personally guarantee the payment of the account and directors of the Company acknowledge that they have signed the below declaration on behalf of the Company
- MISCELLANEOUS PROVISIONS
14.1 The law of New Zealand shall apply to this contract except to the extent expressly negated or varied by this contract.
14.2 Where the terms of this contract are at variance with the order or instruction from the customer, this contract shall prevail.
14.3 Failure by Smith’s to enforce any of the terms and conditions contained in this contract shall not be deemed to be a waiver of any of the rights or obligations Smith’s has under this contract.
14.4 Any personal guarantee made by any third 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.
14.5 Smith’s 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 7 of the Insolvency Act 2006.
14.6 Any cancellation or suspension under clause 14.5 of this contract shall not affect Smith’s claim for money due at the time of cancellation or suspension or for damages for any breach of any terms of this contract.
14.7 Smith’s shall not be liable for delay or failure to perform its obligations if the cause of the delay or failure is beyond its control.
14.8 The customer shall not assign all or any of its rights or obligations under this contract without the written consent of Smith’s.
14.9 If any provision of this contract shall be invalid, void or illegal or unenforceable, the validity evidence, legality and enforceable of the remaining provisions shall not be affected, prejudiced or impaired.
14.10 Any dispute between the parties is to be dealt with in accordance with the Arbitration Act 1996.
- RISK AND RESERVATION OF TITLE
15.1 The risk in any goods supplied by Smith’s shall pass to the customer upon those goods leaving Smith’s premises, unless otherwise specified.
15.2 Title on property and any goods and services supplied by Smith’s shall remain with Smith’s until the Customer has paid in full for the goods and services supplied.
15.3 Until paid for, any goods supplied are held by the customer as bailee and as agent for Smith’s, and the Customer may not sell, dispose of, or charge the goods.
15.4 Where the goods or any part of them are completely or partly attached to any other equipment or structure, Smith’s may nonetheless disconnect and remove the goods.
15.5 In the event that goods supplied are being incorporated or changed into any other product (altered product) the Customer agrees that title and property in the altered product shall vest in Smith’s until the Customer has paid in full the goods supplied.
15.6 The Customer irrevocably grants Smith’s a license to enter onto the premises occupied by the Customer without notice and search for and remove any unpaid goods or unaltered products. Customer indemnifies Smith’s on demand in respecting of any costs or liabilities by Smith’s in exercising its rights under this Clause.
15.7 If any goods are sold by the Customer prior to payment of the full amount, Smith’s portion of the sale price which is due to Smith’s shall be the property of Smith’s. That amount shall be held by the Customer on trust for and on account of Smith’s.
- PERSONAL PROPERTY SECURITIES ACT 1999
16.1 The Customer grants to Smith’s a Security Interest in the goods and their Proceeds to secure the obligation of the Customer to pay the purchase price of the goods and any other obligations of the Customer to Smith’s under this contract (together “the Indebtedness”) and, where the goods and/or Proceeds are not readily identifiable and/or traceable or their recoverable value is insufficient to pay the indebtedness, the security interest shall also extend to all the Customer’s present and after acquired property, of which the goods form part, to the extent required to secure the indebtedness.
16.2 As and when required by Smith’s the Customer shall, at its own expense, provide all reasonable assistance and relevant information to enable Smith’s to register a Financing Statement or Financing Change Statement and generally to obtain, maintain, register and enforce Smith’s’s Security Interest in respect of the goods required, in accordance with the Personal Property Securities Act 1999 (“PPSA”).
16.3 The Customer shall not change its name without first notifying Smith’s of the new name not less than 7 days before the change takes effect.
16.4 Notwithstanding any reference to a particular invoice/order, where any sum remains outstanding by the Customer on more than one invoice/order, any payments received from the Customer shall be deemed to be made by the Customer and applied by Smith’s in respect that each unpaid invoice/order on a pro rata basis PROVIDED THAT where Smith’s applies payments in this manner it shall not charge interest on overdue balances that would have been cleared if the payments were not allocated pro rata.
16.5 Until the Customer has paid all money owing to Smith’s, the Customer shall at all times ensure that:
16.5.1 The goods supply by Smith’s while in the Customer’s possession can be readily identified and distinguished; and/or
16.5.2 All Proceeds (in whatever form) that the Customer receives from the sale of any of the goods are readily Identifiable and Traceable.
16.6 Where the goods are purchased by the Customer as stock in trade for sale or lease in the ordinary course of the Customer’s business, nothing in this clause shall prevent the Customer from selling or leasing and delivering the goods in the ordinary course of the Customer’s business. Otherwise, until the Customer has paid all money owing to Smith’s, the Customer shall not sell or grant a Security Interest in the goods without Smith’s written consent.
16.7 The parties agree to contract-out of the PPSA in accordance with Section 107 of the PPSA to the extent that Section 107 applies for the benefit of, and does not impose a burden on, Smith’s. The Customer waives its right to receive a Verification Statement in respect of any Financing Statement or Financing Change Statement registered by or on behalf of Smith’s in respect of the Security Interest created by these terms and conditions of trade.
16.8 For the purpose of this clause, words and phrases starting with a capital letter shall have the respective meanings given to them under, or in context of, the PPSA.