Nick Consulting Architecture Ltd TERMS AND CONDITIONS OF QUOTATION / SALES

Transcription

1 Nick Consulting Architecture Ltd TERMS AND CONDITIONS OF QUOTATION / SALES 1. DEFINITIONS Agreement means the agreement between NCA and the Customer for the supply of Goods pursuant to an application made by the Customer for a credit account and other orders placed by the Customer from time to time. Customer means the person or company making the credit application and who places an order to purchase Goods from NCA. Goods means the goods supplied by NCA to the Customer from time to time pursuant to the Agreement. Guarantor means the person(s) who guarantee the performance of the obligations of the Customer under the Agreement pursuant to a Deed(s) of Guarantee and Indemnity. NCA means Nick Consulting Architecture Ltd. PLA means the Property Law Act 2007 and includes any re-enactment of or amendment to that legislation and any legislation passed in substitution of that legislation. PPSA means the Personal Property Securities Act 1999 and includes any re-enactment of or amendment to that legislation and any legislation passed in substitution of that legislation. 2. GENERAL 2.1 By entering into the Agreement, the Customer accepts these terms and conditions to the exclusion of any other terms and conditions of the Customer. No waiver, alteration or modification of these terms and conditions or of the Agreement expressed in any document of the Customer shall have effect. 2.2 Unless otherwise stated, quotations are open for acceptance for a period of 14 days. Acceptance after that date will be subject to written confirmation by NCA. Prices quoted are for the quantities and services as listed in the quotations, to be supplied as a completion package. 2.3 If after acceptance of this quotation the contract is terminated by the Customer for whatever reason, NCA shall retain any deposits paid as liquidated damages. 2.4 The signatories appearing on the credit application on behalf of the Customer are duly authorized to apply for the credit account and agree to be bound by the terms and conditions set out herein. 2.5 The terms and conditions contained herein shall prevail over conflicting terms and conditions contained in any other documents. 2.6 All descriptive specifications, illustrations, drawings, data, dimensions and weights furnished by NCA or otherwise contained in NCA s catalogues, price lists and other advertising matter are an approximate only and are intended to be by way of a general description of the Goods and do not form part of the Agreement. 3. PRICE 3.1 Unless otherwise expressly stated, this quotation is based on the cost at the time of quotation of goods, labour, materials, currency exchange rates, duties, insurance and freight prices. Any increase in the prices after the date of quotation and before the date of delivery shall be to the Customer s account. 3.2 Where the price includes installation, NCA reserves the right to apply further charges if additional work is required to complete the installation, due to the failure of others to comply with NCA s instructions regarding installation and/or connection, improper or negligent workmanship by or on behalf of the Customer, or delay caused by or on behalf of the Customer. 3.3 Carpentry, electrical, gas-fitting, plumbing and any other related costs are not included except those that are specified on the quotation. 4. PAYMENT 4.1 In consideration of NCA supplying the Goods to the Customer, the Customer will pay to NCA the price which shall be paid in the following manner: (a) A sum equal to 50% of the price shall be paid by way of a deposit before commencement of the work or ordering of the Goods. An invoice shall be issued on acceptance of the Service Request Form by NCA and all payments are due 5 working days from the date of invoice; and (b) A further payment of 30% of the purchase price shall be paid 5 working days from delivery of the Goods. An invoice (c) shall be issued on delivery and all payments are due 5 working days from the date of invoice; and The outstanding balance shall be made immediately upon installation of the Goods or, where there is no installation, the outstanding balance shall be paid 5 working days from delivery of the Goods. An invoice shall be issued on delivery and all payments are due 5 working days from delivery of the Goods. 4.2 Notwithstanding the above, NCA reserves the right to require full payment before any goods are ordered, delivered, supplied or installed at any time. 4.3 Payment by company or personal cheques requires at least 3 working days before any Goods are delivered due to bank clearance times. 5. DEFAULT OF PAYMENT 5.1 If a Solicitor or Debt Collector is instructed by the Company all costs incurred in the recovery of overdue funds, including but not limited to, debt collection or legal fees, may be added to the balance of your account. 6. DELIVERY 6.1 The Goods are deemed to be delivered at the time they are delivered to the Customer s premises or premises as directed by the Customer on the Service Request Form. 6.2 The delivery or completion date or times made known by NCA to the Customer are estimates only and NCA will not be responsible for any part delivery or delay in delivery of the Goods. NCA shall not be in any way responsible for any consequences 1

2 (direct or indirect) arising from such delay or non-delivery. 6.3 Any transport nominated by the Customer shall be deemed to be the Customer s agent for the purposes of such transport. 6.4 In the case of damage to the Goods in transit, the Customer shall accept the delivery of the Goods and immediately file a claim with the carrier. NCA does not accept any responsibility for any damage to Goods in transit. 6.5 Unless otherwise agreed to by the parties, the Customer must take delivery of the Goods at the Delivery Address noted on the Service Request Form. 7. TITLE AND RISK 7.1 The supply of Goods by NCA is made and done on the express condition that ownership of the Goods is reserved to NCA and that the legal and equitable title of the Goods shall not pass to the Customer unless and until the Customer has paid the purchase price in full to NCA, notwithstanding any such Goods having been affixed to any other land or to any other property or attached to any fixture or structure forming part of any land or any property and notwithstanding any removal or recovery of such unpaid Goods may cause damage to other fixture, chattel or structure on any property. Alternatively, NCA shall have a lien over any unpaid Goods notwithstanding that such unpaid Goods may or may not be affixed to any fixture or structure forming part of any property. 7.2 Until the Customer has paid all money owing to NCA the Customer shall at all times store the Goods separately and ensure that: (a) the Goods supplied by NCA, while in the Customer s possession, can be readily identified and distinguished; and/or (b) all proceeds (in whatever form) that the Customer receives from the sale of any of the Goods are readily identifiable and traceable. 7.3 If the Customer breaches these terms and conditions, then without prejudice to any rights NCA may have at law: (a) (b) NCA may at any time, without notice to the Customer, terminate any agreement relating to the Goods and may then take possession of the Goods or may assume the Customer s interests and rights under any agreement in relation to the Goods with a third party; and/or NCA and its servants or agents may enter any premises owned, leased or otherwise controlled or occupied by the Customer or the Customer s agent at any time without prior notice in order to recover all and/or any Goods to offset any monies owing to NCA and the Customer indemnifies NCA against the use of reasonable force to obtain such possession. 7.4 If the Customer sells the Goods, the Customer acknowledges that such sale is by the Customer as bailee for and on behalf of NCA. The Customer agrees to hold the proceeds of such sale in trust for NCA until payment is made in full to NCA for all the Goods and the Customer will maintain separate records in that respect and to that account and those records may be inspected on demand by NCA. NCA will be entitled to maintain a claim against the Customer for the proceeds of the sale of any other goods into which the Goods have been manufactured. NCA will be entitled to take the proceeds of such sale of such goods and orders as NCA thinks fit, despite the Customer dealing or seeking to deal with those proceeds in any other manner. 7.5 Despite the terms and conditions above, NCA will be entitled to maintain an action against the Customer for the purchase price of the Goods, and the risk in respect of loss or damage to the Goods will pass to the Customer on delivery or collection of the Goods by the Customer s agent or carrier, as the case may be. 7.6 The Customer shall be responsible for any loss, damage or deterioration of the Goods due to any cause whatsoever from the time NCA delivers the Goods to the Customer. 8. SUB-CONTRACTING 8.1 NCA shall be entitled to sub-contract or assign the scope of work or services set out on the Service Request Form without having to seek the approval of the Customer. 9. GRANTING OF CREDIT FACILITIES 9.1 In the event that NCA grants a credit facility to the Customer the following terms and conditions will apply: (a) any credit is granted on the basis of the information provided in the credit application being true valid and correct at all times; (b) NCA may in its sole discretion require security to be granted by the Customer and/or the Guarantors. Such security may include, without limitation, be in the form of a security interest charge under the PPSA and/or a mortgage charge under the PLA. The Customer, its officers, proprietors, the Guarantors hereby agree to grant such charges under the PPSA and/or the PLA as required by NCA from time to time; (c) the continuation of any credit facility is based on the Customer and all its Guarantors being solvent and based on the security being valid, enforceable and sufficient (as determined in NCA s sole discretion from time to time); and (d) the invoiced amount is payable in line with the approved payment terms, and is based on the number of days noted in the credit application following the end of the month in which the Goods were purchased. 10. PPSA SECURITY INTEREST 10.1 In consideration of NCA supplying the Goods in accordance with these terms and conditions, the Customer shall grant at the request of NCA a security interest to all the Customer s present and after acquired property to secure the obligation of the Customer to pay the price in full of the Goods and the performance by the Customer of any other obligations of the Customer under the Agreement The Customer, its officers, proprietors, and the Guarantors hereby agree to grant such charges under the PPSA as requested by NCA from time to time As and when required by NCA the Customer shall, at its own expense, provide all reasonable assistance and relevant information to enable NCA to register a Financing Statement or Financing Change Statement and generally to obtain, maintain, register and enforce NCA s security interest in respect of the Goods supplied, in accordance with the PPSA The Customer shall not change its name without first seeking NCA s approval in writing 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 the, and does not impose a burden on, NCA. The Customer further acknowledges that, to the extent permitted by law, the Customer shall have no right under the following provisions of the PPSA to: (a) receive a notice of sale of collateral under section 114(1)(a); (b) receive a statement of account under section 116; (c) receive surplus distributed under section 117(1)(c); (d) recover any surplus under section 119; 2

3 (e) receive notice of any proposal to retain collateral under section 120(2); (f) object to any proposal to retain collateral under section 121; (g) not to have equipment damaged in the event that NCA were to remove an accession under section 125; (h) be reimbursed for damage caused when NCA removes an accession under section 126; (i) refuse permission to remove an accession under section 127; (j) receive notice of the removal of an accession under section 129; (k) apply to the Court for an order concerning the removal of an accession under section 131; (l) redeem collateral under section 132; (m) reinstate the contract under section 133; and (n) receive a verification statement confirming registration under section In the event that the Customer fails to perform the obligations contained or implied in the Agreement and/or it is necessary for NCA to take steps or incur any expense to protect its interests under the Agreement, including the registration and maintenance of NCA s security interests or repossession of the Goods, then NCA may perform such obligations, pay such money, or incur such expense, and the Customer shall indemnify and reimburse NCA for all monies paid or expenses incurred (including all legal and associated costs) by NCA (inclusive of any Goods and Services Tax). 11. PLA MORTGAGE 11.1 Notwithstanding the grant of a security interest to all the Customer s present and after acquired property under clause 10, the Customer and/or Guarantors shall grant at the request of NCA, a mortgage over real property of sufficient equity (as NCA thinks fit) to secure the obligations of the Customer to pay the price in full of the Goods and the performance by the Customer of any other obligations of the Customer under the Agreement The Customer, its officers, proprietors, and the Guarantors hereby agree to grant such mortgage under the PLA as requested by NCA from time to time As and when required by NCA the Customer shall, at its own expense, provide all reasonable assistance and relevant information to enable NCA to register a mortgage in accordance with the PLA including, without limitation, obtaining approval from the first mortgagee (if any) The Customer shall not grant a subsequent mortgage over real property which NCA has become the registered mortgagee without first obtaining written consent from NCA. The grant of consent is at the sole discretion of NCA and NCA is not obliged to give reasons for withholding consent In the event that the Customer fails to perform the obligations contained or implied in the Agreement, NCA may exercise its powers as mortgagee under the PLA to protect its interests under the Agreement, and the Customer shall indemnify and reimburse NCA for all monies paid or expenses incurred (including all legal and associated costs) by NCA (inclusive of any Goods and Services Tax). 12. WARRANTY 12.1 NCA warrants any Goods it manufactures against faulty LABOUR and PARTS for a period of TWELVE (12) months from the date of invoice NCA warranty does not apply in instances where an outstanding account balance remains unpaid on the date of the warranty request All warranty claims must be lodged with proof of purchase and the product serial number All defective Goods covered under the warranty must be promptly returned to NCA to the place NCA delivered the Goods at the Customer s cost Any defective replacement parts will be repaired or re-supplied for a period of three (3) months from delivery All repair requests covered under NCA s warranty will be conducted on-site during normal business working hours (Monday to Friday 8:30am 4:00pm) and not on public holidays Any repair requests covered under NCA s warranty conducted outside normal business hours will incur a fee A call out fee is chargeable where: (a) no fault is found; (b) the fault is caused by the operator or installer; or (c) the callout is in a rural area All warranty work must only be carried out by a service agent authorized by NCA All gas installation must be installed in accordance with the installation requirements of AS/NZS and on fire-proof base A gas certificate of compliance on completion of all gas installation work done on all Goods may be required to be sighted upon carrying out warranty work. Unlicensed gas installation work is illegal and will not be covered under the warranty The warranty does not extend to: (a) any wear and tear of parts of Goods such as knobs, thermocouple, piezo leads, ignitors, pilot burner and burner jets. These will only carry 3 months warranty from the date of purchase; (b) any tampering or modification of the Goods by the Customer or by an agent of the Customer; (c) any improper installation or commissioning of the product by the Customer or by an agent of the Customer; (d) any defect or damage which may be caused or partly caused by or arise through excessive wear, misuse, negligence, accident; (e) instances where the Goods were operated incorrectly or were serviced by an unauthorized person; (f) any defect or damage which may be caused or partly caused by or arise through cleaning, lost and broken accessories, blocked pilot and burner jets caused by foodstuffs and oil; (g) any defect or damage which may be caused or partly caused by or arise through glass, light bulbs, heat lamps and heat elements; or (h) any defect or damage which may be caused or partly caused by or arise through the Customer s specification or design fault; (i) the failure on the part of the Customer to follow any instructions or guidelines provided by NCA. 13. RETURN OF GOODS 13.1 No Goods shall be returned for credit without NCA s approval. 3

4 13.2 Return of Goods will only be accepted for credit within 30 days from the date of the invoice No return of Goods shall be accepted by NCA if they have been used in any improper way for any purpose, or if they are nonstandard Goods sold on a non-return basis When returning Goods to NCA for credit, the original delivery docket or invoice number must be quoted and return freight must be prepaid by the Customer. Returns for credit may incur a 15% (of the value of the returned Goods) administration and restocking fee NCA will only issue credit to the Customer s account for future purchases at NCA. 14. CUSTOMER S LIABILITY AND DEFAULT 14.1 If the Customer shall: (a) fail to make any payment due under the Agreement or commit any other breach of the any of the Customer s obligations under the Agreement; (b) suffer execution under any judgment; (c) commit an act of bankruptcy; (d) (e) make any composition or arrangement with any creditor; or being a company, pass a resolution for winding up or have a receiver appointed over any of its property or have a winding up petition presented against it, The Customer acknowledges that NCA may treat the Agreement as being terminated and any part of the purchase price then unpaid, together with any monies owing hereunder, whether or not due under the terms of the Agreement shall become immediately due and payable and NCA reserves the right to charge interest daily at a rate of 2.5% per month on all monies and costs due or overdue up to the actual date of payment The Customer shall additionally be liable on an indemnity basis for all expenses, costs and disbursements incurred in recovering any outstanding monies including debt collection fees and solicitor s costs Upon default by the Customer in any payment due under the Agreement, NCA may: (a) refuse to supply any Goods despite any agreement to the contrary; and (b) terminate any credit facility without notice NCA is entitled at any time to request security or additional security as NCA reasonably thinks fit and is entitled to withhold supply of any Goods or credit facility until such security or additional security is given. 15. GENERAL EXCLUSIONS AND LIMITATIONS OF LIABILITY 15.1 To the full extent permitted by the law, NCA s liability in respect of a claim under clause 13 or pursuant to any statutory remedy available to the Customer for defective Goods is limited to, at NCA s discretion: (a) the replacement of the Goods; (b) the payment of the cost of replacing the Goods; (c) the supply of products equivalent to the Goods; or (d) the repair of the Goods To the full extent permitted by the law, except as provided in these terms and conditions, all express and implied warranties, guarantees and conditions under statute or general laws as to merchantability, description, quality, suitability or fitness for purpose or as to the design are expressly excluded. NCA does not exclude or limit the application of any provision of any statute of New Zealand where to do so would contravene that statute or cause any part of this clause to be void To the full extent permitted by the law, NCA excludes liability to the Customer: (a) in contract for consequential or indirect damages arising out of or in connection with these terms and conditions even if NCA knew they were possible or they were otherwise foreseeable, including without limitation, loss of profits and damage suffered as a result of claims by any third party; and (b) in negligence and other non-contractual causes of action for acts or omissions of NCA, its employees, agents and contractors arising out of or in connection with these terms and conditions. 16. CHANGE IN CONTROL OR FINANCIAL STATUS 16.1 The Customer must advise NCA of all material changes in its name, financial status, ownership, management and/or change of address, as soon as reasonably practicable when they occur. 17. GOVERNING LAW 17.1 These terms of trade are governed by the laws of New Zealand NCA and the Customer shall submit to the exclusive jurisdiction of the courts of New Zealand in respect of any dispute or proceeding arising out of these terms and conditions of trade under this Agreement Each provision of the terms and conditions are separate from the other and if any provision is found to be avoidable or unenforceable for any reason the remaining provisions shall continue to have full force and effect. 18. VARIATIONS TO TERMS AND CONDITIONS 18.1 NCA may from time to time and in its sole discretion amend, add to or delete any of the terms and conditions of trade without giving notice to the Customer provided that NCA shall not make any variation to the nature or extent of the security interest granted by the Customer in clauses 6 and 7 without the prior written agreement of the Customer. 19. SALE OF BUSINESS, CEASING TO TRADE, OR VACATING PREMISES 19.1 The signatories overleaf of this Agreement agree that if they sell the business, cease to trade or vacate the premises, they will notify NCA in writing prior to the settlement, or immediately upon ceasing to trade or vacating the premises. The signatories will also advise NCA of the forwarding addresses and contact phone numbers. Receipt of this information is to be confirmed in writing by NCA. The signatories agree that if they do not notify NCA in writing, and they do not have NCA s acknowledgment in writing, they shall be personally liable for all outstanding monies owed to NCA by the company/business. The signatories understand that NCA requires this information so that it may take possession of its security under the PPSA and under the PLA. 20. BANKRUPTCY DECLARATION 20.1 The signatories overleaf declare that the Customer is solvent/not bankrupt, and that they have not been a Director(s) of a company that has been declared insolvent, and have not had any judgments made against us by the courts. 4

5 21. PRIVACY ACT The Customer authorizes NCA to collect, retain, and use personal information about the Customer (including information collected in this document) for the following purposes only: (a) (b) assessing the Customer s credit worthiness; and disclosing to a third party details of this application and any subsequent dealings it may have with NCA for the purpose of recovering amounts payable by the Customer and providing credit references The Customer, if an individual, has a right of access to information about the Customer held by NCA. The Customer may request correction of that information and may require that request be stored with that information. I/We, the Customer and the Guarantor, agree to abide by NCA s terms and conditions set out herein. 5