Personal/Directors Guarantee and Indemnity
IN CONSIDERATION of Big Ideas Group Limited T/A Big Ideas and its successors and assigns (“the Supplier”) at the request of the Guarantor (as is now acknowledged) supplying and continuing to supply goods and/or services to (“the Client”)
I/WE (also referred to as the “Guarantor/s”) UNCONDITIONALLY AND IRREVOCABLY:
1. GUARANTEE the due and punctual payment to the Supplier of all monies which are now owing to the Supplier by the Client and all further sums of money from time to time owing to the Supplier by the Client in respect of goods and services supplied or to be supplied by the Supplier to the Client or any other liability of the Client to the Supplier, and the due observance and performance by the Client of all its obligations contained or implied in any contract or agreement with the Supplier, including but not limited to the Terms & Conditions of Trade signed by the Client and annexed to this Guarantee and Indemnity. If for any reason the Client does not pay any amount owing to the Supplier, the Guarantor will immediately on demand pay the relevant amount to the Supplier. In consideration of the Supplier agreeing to supply the goods and/or services to the Client, the Guarantor charges all of its right, title and interest (joint or several) in any land, realty or other assets capable of being charged, owned by the Guarantor now or in the future, to secure the performance by the Guarantor of its obligations under this Guarantee and Indemnity (including, but not limited to, the payment of any money) and the Guarantor acknowledges that this personal guarantee and indemnity constitutes a security agreement for the purposes of the Personal Property Securities Act 1999 (“PPSA”) and unequivocally consents to the Supplier registering any interest so charged. Furthermore, it is agreed by both parties that where the Guarantor is acting in the capacity as a trustee for a trust, then the Guarantor agrees to charge all its right title and interest in any land realty, or other assets capable of being charged in its own capacity and in its capacity as trustee and shall be subject to the PPSA Registration as stated above. The Guarantor irrevocably appoints the Supplier and each director of the Supplier as the Guarantor’s true and lawful attorney/s to perform all necessary acts to give effect to this clause including, but not limited to, signing any document on the Guarantor’s behalf which the Supplier may reasonably require to:
(a) register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;
(b) register any other document required to be registered by the PPSA or any other law; or
(c) correct a defect in a statement referred to in clause 1(a) or 1(b).
2. HOLD HARMLESS AND INDEMNIFY the Supplier on demand as a separate obligation against any liability (including but not limited to damages, costs, losses and legal fees calculated on a solicitor and own client basis) incurred by, or assessed against, the Supplier in connection with:
(a) the supply of goods and/or services to the Client; or
(b) the recovery of monies owing to the Supplier by the Client including the enforcement of this Guarantee and Indemnity, and including but not limited to the Supplier’s nominees’ costs of collection and legal costs; or
(c) monies paid by the Supplier with the Client’s consent in settlement of a dispute that arises or results from a dispute between, the Supplier, the Client, and a third party or any combination thereof, over the supply of goods and/or services by the Supplier to the Client.
I/WE FURTHER ACKNOWLEDGE AND AGREE THAT
3. I/We have received, read, and understood the Supplier’s Terms and Conditions prior to entering into this Guarantee and Indemnity and agree to be bound by those Terms and Conditions.
4. This Guarantee and Indemnity shall constitute an unconditional and continuing Guarantee and Indemnity and accordingly shall be irrevocable and remain in full force and effect until all monies owing to the Supplier by the Client and all obligations herein have been fully paid satisfied and performed.
5. No granting of credit, extension of further credit, or granting of time and no waiver, indulgence, or neglect to sue on the Supplier’s part (whether in respect of the Client or any one or more of any other Guarantor(s) or otherwise) and no failure by any named Guarantor to properly execute this Guarantee and Indemnity shall impair or limit the liability under this Guarantee and Indemnity of any Guarantor. Without affecting the Client’s obligations to the Supplier, each Guarantor shall be a principal debtor and liable to the Supplier accordingly.
6. The liability under this Guarantee and Indemnity shall not be discharged, abrogated, prejudiced, or affected by:
(a) any alteration, modification, variation or addition to any contract or agreement in respect of the supply of goods and/or services;
(a) the liquidation, receivership, administration, bankruptcy, dissolution, compromise or scheme of arrangement in respect of the Client;
(b) any other act, omission, or event which, but for this provision, might operate to discharge, impair, or otherwise affect any obligations under this Guarantee and Indemnity of any of the rights, powers or remedies conferred by this Guarantee and Indemnity or by law.
7. The term “Guarantor” whenever used in this Guarantee and Indemnity shall, if there is more than one person named as Guarantor, mean, and refer to each of them individually and all of them together unless the context otherwise requires, the obligations and agreements on the part of the Guarantor, shall include the Guarantor’s executors, administrators, successors and permitted assignments (where applicable) contained in this Guarantee and Indemnity shall bind them jointly and severally.
8. I/We have been advised to obtain independent legal advice before executing this Guarantee and Indemnity. I/we understand that I/we am/are liable for all amounts owing (both now and in the future) by the Client to the Supplier.
9. I/we irrevocably authorise the Supplier to obtain from any person or company any information which the Supplier may require for credit reference purposes. I/We further irrevocably authorise the Supplier to provide to any third party, in response to credit references and enquiries about me/us or by way of information exchange with credit reference agencies, details of this Guarantee and Indemnity and any subsequent dealings that I/we may have with the Supplier as a result of this Guarantee and Indemnity being actioned by the Supplier.
10. The above information is to be used by the Supplier for all purposes in connection with the Supplier considering this Guarantee and Indemnity and the subsequent enforcement of the same.
For and on behalf of the Client I/We confirm I/We have read, understood, and accept the terms of this Guarantee and Indemnity, and I/We agree to be bound by this Guarantee and Indemnity.
Note: 1. If the Client is a proprietary limited company, the Guarantor(s) must be the director(s) of the company.
2. If the Client is a limited partnership, the Guarantor(s) must be the general partners
3. If the Client is a sole trader or partnership the Guarantor(s) should be some other suitable person(s).
4. If the Client is a club or incorporated society the Guarantor(s) should be the president and secretary or other committee member
WARNING: THIS IS AN IMPORTANT DOCUMENT. YOU SHOULD SEE YOUR OWN LAWYER OR ADVISOR BEFORE SIGNING IT
Terms & Conditions of Trade
1. Definitions
1.1 “Client” means the person/s, entities or any person acting on behalf of and with the authority of the Client requesting the Supplier to provide the Services as specified in any proposal, quotation, order, invoice or other
documentation, and:
(a) if there is more than one Client, is a reference to each Client jointly and severally; and
(b) if the Client is a partnership, it shall bind each partner jointly and severally; and
(c) if the Client is a part of a Trust, shall be bound in their capacity as a trustee; and
(d) includes the Client’s executors, administrators, successors and permitted assigns.
1.2 “Contract” means the terms and conditions contained herein, together with any quotation, order, invoice or other document or amendments expressed to be supplemental to this Contract.
1.3 “Cookies” means small files which are stored on a user’s computer. They are designed to hold a modest amount of data (including Personal Information) specific to a particular client and website, and can be accessed either by the web server or the client’s computer. If the Client does not wish to allow Cookies to operate in the background when using the Supplier’s website, then the Client shall have the right to enable / disable the Cookies first by selecting the option to enable / disable provided on the website, prior to making enquiries via the website.
1.4 “Goods” means all Goods or Services (including, but not limited to, any design, manufacturing and installation Services) supplied by the Supplier to the Client at the Client’s request from time to time (where the context so permits the terms ‘Goods’ or ‘Services’ shall be interchangeable for the
other).
1.5 “Price” means the Price payable (plus any Goods and Services Tax (“GST”) where applicable) for the Goods as agreed between the Supplier and the Client in accordance with clause 6 below.
1.6 “Supplier” means Big Ideas Group Limited T/A Big Ideas, its successors and assigns.
2. Acceptance
2.1 The parties acknowledge and agree that
(a) they have read and understood the terms and conditions contained in
this Contract; and
(b) the parties are taken to have exclusively accepted and are immediately bound, jointly and severally, by these terms and conditions if the Client places an order for or accepts Delivery of the Goods.
2.2 In the event of any inconsistency between the terms and conditions of this
Contract and any other prior document or schedule that the parties have entered into, the terms of this Contract shall prevail.
2.3 Any amendment to the terms and conditions contained in this Contract may only be amended in writing by the consent of both parties.
2.4 The Client acknowledges and accepts that the supply of Goods:
(a) on credit shall not take effect until the Client has completed a credit application with the Supplier and it has been approved with a credit limit established for the account. In the event that the supply of Goods requested exceeds the Client’s credit limit and/or the account exceeds the payment terms, the Supplier reserves the right to refuse Delivery; and
(b) for accepted orders may be subject to availability and if, for any reason, the Goods are not or cease to be available, the Supplier reserves the right to substitute comparable Goods (or components of the Goods) and vary the Price as per clause 6.2. In all such cases the Supplier will notify the Client in advance of any such substitution, and also reserves the right to place the Client’s order and/or Services on hold, as per clause 7.2 until such time as the Supplier and the Client agree to such changes.
2.5 Any advice, recommendation, information, assistance or service provided by the Supplier in relation to the Goods or Services supplied is given in good faith to the Client, or the Client’s agent and is based on the Supplier’s own knowledge and experience and shall be accepted without liability on the part
of the Supplier. Where such advice or recommendations are not acted upon then the Supplier shall require the Client or their agent to authorise commencement of the Services in writing. The Supplier shall not be liable in any way whatsoever for any damages or losses that occur after any subsequent commencement of the Services.
2.6 Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 226 of the Contract and Commercial Law Act 2017 or any other applicable provisions of that Act or any Regulations referred to in that Act.
3. Authorised Representatives
3.1 The Client acknowledges that the Supplier shall (for the duration of the Services) liaise directly with one (1) authorised representative, and that once introduced as such to the Supplier, that person shall have the full authority of the Client to order any Goods, Services and/or to request any variation thereto on the Client’s behalf. The Client accepts that they will be solely liable
to the Supplier for all additional costs incurred by the Supplier (including the Supplier’s profit margin) in providing any Goods, Services or variation/s requested thereto by the Client’s duly authorised representative.
4. Errors and Omissions
4.1 The Client acknowledges and accepts that the Supplier shall, without
prejudice, accept no liability in respect of any alleged or actual error(s) and/or omission(s):
(a) resulting from an inadvertent mistake made by the Supplier in the formation and/or administration of this Contract; and/or
(b) contained in/omitted from any literature (hard copy and/or electronic) supplied by the Supplier in respect of the Services.
4.2 If such an error and/or omission occurs in accordance with clause 4.1, and is not attributable to the negligence and/or willful misconduct of the Supplier; the Client:
(a) shall not be entitled to treat this Contract as repudiated nor render it invalid; but
(b) shall not be responsible for any additional costs incurred by the Supplier arising from the error or omission.
5. Change in Control
5.1 The Client shall give the Supplier not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client and/or any other change in the Client’s details (including but not limited to, changes in the Client’s name, address and contact phone or fax number/s, change of trustees or business practice). The Client shall be liable for any loss incurred by the Supplier as a result of the Client’s failure to comply with this clause.
6. Price and Payment
6.1 At the Supplier’s sole discretion the Price shall be either:
(a) as indicated on any invoice provided by the Supplier to the Client; or
(b) the Price as at the date of Delivery of the Goods according to the Supplier’s current price list; or
(c) the Supplier’s quoted Price (subject to clause 6.2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.
6.2 The Supplier reserves the right to change the Price if a variation to the Supplier’s quotation is requested. Any variation from the plan of scheduled Services or specifications (including, but not limited to, any variation as a result of additional Services required due to unforeseen circumstances such as change in scope of work required, the number and scope of amendments requested, poor weather conditions, limitations to accessing the site, site conditions being unfavourable for the Goods to be installed or the Services to commence/completed, availability of machinery, delays or non-approval in obtaining council or local authority permits, or as a result of any increases to the Supplier in the cost of materials and labour etc) which are beyond the Supplier’s control will be charged for on the basis of the Supplier’s quotation, and will be detailed in writing, and shown as variations on the Supplier’s invoice. The Client shall be required to respond to any variation submitted by the Supplier within ten (10) working days. Failure to do so will entitle the Supplier to add the cost of the variation to the Price. Payment for all variations must be made in full at the time of their completion.
6.3 At the Supplier’s sole discretion a reasonable non-refundable deposit may be required.
6.4 Time for payment for the Goods being of the essence, the Price will be payable by the Client on the date/s determined by the Supplier, which may be:
(a) on or before Delivery of the Goods;
(b) on completion of the Services;
(c) by way of instalments/progress payments in accordance with the Supplier’s payment schedule;
(d) for certain approved Clients, due twenty (20) days following the end of the month in which a statement is posted to the Client’s address or address for notices;
(e) the date specified on any invoice or other form as being the date for payment; or
(f) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Client by the Supplier.
6.5 Payment may be made by electronic/on-line banking or by any other method as agreed to between the Client and the Supplier.
6.6 The Supplier may in its discretion allocate any payment received from the Client towards any invoice that the Supplier determines and may do so at the time of receipt or at any time afterwards. On any default by the Client the Supplier may re-allocate any payments previously received and allocated. In the absence of any payment allocation by the Supplier, payment will be deemed to be allocated in such manner as preserves the maximum value of the Supplier’s Purchase Money Security Interest (as defined in the PPSA) in the Goods.
6.7 The Client shall not be entitled to set off against, or deduct from the Price,
any sums owed or claimed to be owed to the Client by the Supplier nor to withhold payment of any invoice because part of that invoice is in dispute, unless the request for payment by the Supplier is a claim made under the
Construction Contracts Act 2002. Nothing in this clause 6.7 prevents the Client from the ability to dispute any invoice.
6.8 Unless otherwise stated the Price does not include GST. In addition to the Price, the Client must pay to the Supplier an amount equal to any GST the Supplier must pay for any supply by the Supplier under this or any other contract for the sale of the Goods. The Client must pay GST, without deduction or set off of any other amounts, at the same time and on the same
basis as the Client pays the Price. In addition, the Client must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.
7. Provision of the Services
7.1 Subject to clause
7.2 it is the Supplier’s responsibility to ensure that the Services start as soon as it is reasonably possible. 7.2 The Services’ commencement date will be put back and the completion date extended by whatever time is reasonable in the event that the Supplier claims an extension of time (by giving the Client written notice) where completion is
delayed by an event beyond the Supplier’s control, including but not limited
to any failure by the Client to:
(a) make a selection; or
(b) have the site ready for the Services; or
(c) notify the Supplier that the site is ready.
7.3 Delivery (“Delivery”) of the Goods is taken to occur at the time that:
(a) the Client or the Client’s nominated carrier takes possession of the Goods at the Supplier’s address; or
(b) the Supplier (or the Supplier’s nominated carrier) delivers the Goods to the Client’s nominated address even if the Client is not present at the address.
7.4 The cost of Delivery is either included in the Price or is in addition to the Price as agreed between the parties.
7.5 Any time specified by the Supplier for Delivery of the Goods is an estimate only and the Supplier will not be liable for any loss or damage incurred by the Client as a result of Delivery being late. However both parties agree that they shall make every endeavour to enable the Goods to be delivered at the time and place as was arranged between both parties. In the event that the
Supplier is unable to supply the Goods as agreed solely due to any action or inaction of the Client, then the Supplier shall be entitled to charge a reasonable fee for redelivery and/or storage.
8. Copy
8.1 For the purpose of this clause 8, “Copy” shall mean any documents, designs, materials supplied by the Client to the Supplier to complete the Services.
8.2 The Client acknowledges and accepts that all Copy supplied to the Supplier is subject to the approval of the Supplier and may, regardless of prior approval, be rejected and removed by the Supplier.
8.3 The Client warrants that all Copy supplied to the Supplier to be used for the supply of the Goods shall:
(a) be true and correct in every particular;
(b) not contain Prohibited Content;
(c) be non-political and non-religious by nature, and suitable for viewer of all ages;
(d) not be, nor contain, anything that is defamatory of any person or is indecent or obscene;
(e) complies with all laws, regulations, codes of practice, guidelines and any standards applicable to the advertising industry and as determined by any relevant regulatory agency or industry self- regulatory body;
(f) not infringe copyright, trademark or any other legal rights of another person and/or entity;
(g) not contain anything which may give rise to any cause of action by a third against the Supplier (including, but not limited to, Goods that may cause damage or injury to any person and/or entity);
(h) not be false or misleading and is true in substance and in fact; and
(i) not contain nor constitute a statement that is misleading or deceptive or likely to deceive or to mislead or which is otherwise in breach of a provision of the Fair Trading Act 1986 or any other applicable legislation.
8.4 The Client shall indemnify, and keep indemnified, the Supplier at all times against all actions, proceedings, claims, demands, liabilities, either express or implied, and all costs, losses, losses of profit, damages and expenses whatsoever which may be taken against the Supplier, or incurred or become payable by the Supplier, resulting or arising from the Client being in breach of clause 8.1
8.5 The Supplier reserves the right to refuse to accept any Copy submitted by the Client that does not comply with clause 8.1.
9. Risk
9.1 Risk of damage to or loss of the Goods passes to the Client on Delivery and the Client must insure the Goods on or before Delivery.
9.2 If any of the Goods are damaged or destroyed following Delivery but prior to ownership passing to the Client, the Supplier is entitled to receive all insurance proceeds payable for the Goods. The production of these terms
and conditions by the Supplier is sufficient evidence of the Supplier’s rights to receive the insurance proceeds without the need for any person dealing with the Supplier to make further enquiries.
9.3 If the Client requests the Supplier to leave Goods outside the Supplier’s premises for collection or to deliver the Goods to an unattended location then
such Goods shall be left at the Client’s sole risk.
9.4 Unless otherwise agreed, where the Supplier is to both supply and install the Goods then the Supplier shall maintain a Contract works insurance policy until the Services are completed. Upon completion of the Services all risk for the Services shall immediately pass to the Client.
9.5 It is the Client’s responsibility to to ensure that any plans, specifications and other information (including, but not limited to, accurate font, pantone etc) provided by the Client to the Supplier are accurate. The Client acknowledges and agrees that in the event that any plans, specifications or information provided by the Client is inaccurate that the Supplier:
(a) accepts no responsibility or liability for any loss, damages, or costs however resulting from these inaccurate plans, specifications or other information;
(b) is entitled to suspend or terminate the supply of Goods or Services to the Client if there is a material change to the scope of Services as a result of inaccurate plans, specifications or other information; and
(c) will not be liable to the Client for any loss or damage the Client suffers because Adgraphix has exercised its rights under this clause.
9.6 The Supplier is under no obligation to provide samples of Goods ordered other than by virtual (computerised) sample. Whilst every effort will be taken by the Supplier to match virtual colours with physical colours, the Supplier will take no responsibility for any variation between virtual sale samples and either the virtual sale sample displayed on the Client’s computer and/or the
final product. Should a physical sample be required, this will be provided on request by the Client and will be charged for as an extra in accordance with clause 6.2.
9.7 The Client warrants that any structures to which the Goods are to be affixed are able to withstand the installation thereof and are of suitable capacity to handle the Goods once installed. If for any reason (including the discovery of asbestos, defective or unsafe structures or risk) that the Supplier reasonably form the opinion that the Client’s premises is not safe for the Services to
proceed then the Supplier shall be entitled to delay the provision of the Services (in accordance with clause 7.2 until the Supplier is satisfied that it is safe for the installation to proceed.
9.8 The Client acknowledges and accepts that:
(a) all work carried out whether experimentally or otherwise at the Client’s request will be charged to the Client;
(b) any tabulated work and/or foreign language included in the job but not contained in the manuscript originally submitted for the purpose of estimating may be charged to the Client and shown as extras on the invoice;
(c) any change, correction or claims to any film, artwork and/or any printing surface supplied by the Client which is deemed necessary by the Supplier to ensure correctly finished work shall be invoiced as an extra;
(d) unless otherwise agreed, the Client shall bear the cost of fonts, or colour proofs, or artwork, specially bought at the Client’s request for the Services to be completed;
(e) while every effort will be taken by the Supplier to match PMS colours, the Supplier will take no responsibility for any variation due to substrates, half tones and/or detailed graphics between sale samples (including but not limited to virtual or physical samples) and the final product;
(f) the Supplier shall not be held liable for inks wearing off through general wear and tear;
(g) the Supplier shall be under no liability whatever to the Client for any variation (beyond the reasonable control of the Supplier) in colours between the approved prototype and the finished Goods; (h) the Goods supplied by the Supplier may experience shrinkage or may move after installation/application, which is considered normal practice for these types of Goods and thereby not covered by the Supplier’s as a defect or under warranty. The Supplier shall not be liable for any loss or damage in this event, where circumstances are beyond the control of the Supplier; and
(i) where materials are supplied by the Client for the provision of Services that the Supplier shall accept no liability for imperfect work caused by defects in, or the unsuitability of, such materials for the Services.
9.9 The Client further acccepts that the Supplier can only provide its Services on a vehicle in its current state as supplied to the Supplier therefore the Supplier shall not accept any responsibility for the workmanship of any third party that has worked on a Client’s vehicle prior to Services being undertaken by the Supplier (including, but not limited to, poor paintwork or repairs).
9.10 It is the Client’s responsibility to remove all personal/valuable items from the vehicle prior to the Supplier carrying out their Services. The Supplier shall not liable in the event of any apparent loss or damage to personal/valuable items left in the vehicle.
9.11 The Client accepts that the in the event that the vehicle is stored for any period on the Supplier’s premises that it is done so at the Client’s own risk and it shall be the client’s responsibility to ensure their vehicle and its contents are insured adequately or at all.
9.12 In the event that the Client believes that the Supplier has scratched the vehicle during the installation/application process of the Goods, the Client shall within twenty-four (24) hours of delivery (time being of the essence) notify the Supplier of any alleged defect or damage. The Client shall afford the Supplier an opportunity to inspect the vehicle within a reasonable time
following delivery. If the Client fails to comply with clause 9.12, the vehicle shall be presumed to be free from any defect or damage.
9.13 Where the performance of any contract with the Client requires the Supplier to obtain Goods or Services from a third party, the Contract between the Supplier and the Client shall incorporate and shall be subject to the conditions of supply of such Goods and Services to the Supplier, and the Client shall be liable for the cost in full including the Supplier’s margin of such Goods or Services.
9.14 The Client acknowledges and agrees that any completed Goods left with the Supplier for more than two (2) weeks will incur a storage fee as determined by the Supplier.
9.15 In the case of property and materials left with the Supplier without specific instructions, the Supplier shall be free to dispose of them at the end of twelve (12) months after receiving them and to accept and retain any proceeds gained from such disposal to cover the Supplier’s costs in holding and handling such items.
10. Samples and Proof Reading
10.1 Whilst every care is taken by the Supplier to carry out the instructions of the Client, it is the Client’s responsibility to undertake a final proof reading of the Goods. The Supplier shall be under no liability whatever for any errors not corrected by the Client in the final proof reading, and should the Client’s alterations require additional proofs this shall be invoiced as an extra in accordance with clause 6.2.
10.2 All final proofs provided by the Supplier must be approved before final production of signage commences.
11. Site/Vehicle Access and Condition
11.1 It is the intention of the Supplier and agreed by the Client that:
(a) the Client shall ensure that the Supplier has clear and free access to the site and/or vehicle at all times to enable them to undertake the Services (including carrying out site inspections, gain signatures for required documents, and for the delivery and installation of the Goods). The Supplier 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 Supplier; and
(b) it is the Client’s responsibility to provide the Supplier, while at the site, with adequate access to available electricity and facilities where required.
11.2 The Client agrees to be present at the site when and as reasonably requested by the Supplier and its employees, contractors and/or agents.
11.3 Where the Supplier requires that Goods, fittings and appliances, or plant and tools required for the Services be stored at the site, the Client shall supply the Supplier a safe area for storage and shall take all reasonable efforts to protect all items from possible destruction, theft or damage. In the event that any of the stored items are destroyed, stolen or damaged, then the cost of repair or replacement shall be the Client’s responsibility.
11.4 Site Inductions
(a) in the event the Client requires an employee or sub-contractor of the Supplier to undertake a site induction during working hours, the Client will be liable to pay the hourly charges for that period. If any induction needs to be undertaken prior to the commencement date then the Client shall be liable to pay the Supplier’s standard (and/or overtime, if applicable) hourly labour rate; or
(b) where the Supplier is in control of the site, the Client and/or the
Client’s third-party contractors must initially carry out the Supplier’s Health & Safety induction course before access to the site will be granted. Inspection of the site during the course of the Services will be by appointment only and unless otherwise agreed, in such an event the Client and/or third party acting on behalf of the Client must at all times be accompanied by the Supplier.
12. Title
12.1 The Supplier and the Client agree that ownership of the Goods shall not pass until:
(a) the Client has paid the Supplier all amounts owing to the Supplier; and
(b) the Client has met all of its other obligations to the Supplier.
12.2 Receipt by the Supplier of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised.
12.3 It is further agreed that until ownership of the Goods passes to the Client in accordance with clause 12.1:
(a) the Client is only a bailee of the Goods and must return the Goods to the Supplier on request;
(b) the Client holds the benefit of the Client’s insurance of the Goods on trust for the Supplier and must pay to the Supplier the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed;
(c) the Client must not sell, dispose, or otherwise part with possession of the Goods other than in the ordinary course of business and for market value. If the Client sells, disposes or parts with possession of the Goods then the Client must hold the proceeds of any such act on trust for the Supplier and must pay or deliver the proceeds to the Supplier on demand;
(d) the Client should not convert or process the Goods or intermix them with other goods but if the Client does so then the Client holds the resulting product on trust for the benefit of the Supplier and must sell, dispose of or return the resulting product to the Supplier as it so directs;
(e) the Client irrevocably authorises the Supplier to enter any premises where the Supplier believes the Goods are kept and recover possession of the Goods;
(f) the Supplier may recover possession of any Goods in transit whether or not Delivery has occurred;
(g) the Client shall not charge or grant an encumbrance over the Goods nor grant nor otherwise give away any interest in the Goods while they remain the property of the Supplier; and
(h) the Supplier may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Client.
13. Personal Property Securities Act 1999 (“PPSA”)
13.1 Upon assenting to these terms and conditions in writing the Client acknowledges and agrees that:
(a) these terms and conditions constitute a security agreement for the purposes of the PPSA; and
(b) a security interest is taken in all Goods that have previously been supplied and that will be supplied in the future by the Supplier to the Client, and the proceeds from such Goods as listed by the Supplier to the Client in invoices rendered from time to time.
13.2 The Client undertakes to:
(a) sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which the Supplier may reasonably require to register a financing statement or financing change statement on the Personal
Property Securities Register;
(b) indemnify, and upon demand reimburse, the Supplier for all expenses incurred in registering a financing statement or financing change
statement on the Personal Property Securities Register or releasing
any Goods charged thereby;
(c) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods or the proceeds of such Goods in favour of a third party without the prior written consent of the Supplier; and
(d) immediately advise the Supplier of any material change in its business practices of selling the Goods which would result in a
change in the nature of proceeds derived from such sales.
13.3 Unless otherwise agreed to in writing by the Supplier, the Client waives its right to receive a verification statement in accordance with section 148 of the PPSA.
13.4 The Client shall unconditionally ratify any actions taken by the Supplier under clauses 13.1 to 13.3.
13.5 Subject to any express provisions to the contrary (including those contained in this clause 13), nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.
14. Security and Charge
14.1 In consideration of the Supplier agreeing to supply the Goods, the Client charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Client either now or in the future, and the Client grants a security interest in all of its present and after-acquired property, to secure the performance by the Client of its obligations under these terms and conditions (including, but not limited to, the payment of any money). The terms of the charge and security interest are the terms of Memorandum 2018/4344 registered pursuant to s.209 of the Land Transfer Act 2017.
14.2 The Client indemnifies the Supplier from and against all the Supplier’s costs and disbursements including legal costs on a solicitor and own client basis
incurred in exercising the Supplier’s rights under this clause.
14.3 The Client irrevocably appoints the Supplier and each director of the Supplier as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 14 including, but not limited to, signing any document on the Client’s behalf.
15. Defects and Returns
15.1 The Client shall inspect the Goods on Delivery and shall within seven (7)
days of Delivery (time being of the essence) notify the Supplier of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Client shall afford the Supplier an opportunity to inspect the Goods within a reasonable time following Delivery if the Client believes the Goods are defective in any way. If the Client fails to comply with these provisions the Goods shall be presumed to be free from any defect or damage. For defective Goods, which the Supplier has agreed in writing that the Client is entitled to reject, the Supplier’s liability is limited to either (at the Supplier’s discretion) replacing the Goods or repairing the Goods. 15.2 Goods will not be accepted for return other than in accordance with 15.1 above, and provided that:
(a) the Supplier has agreed in writing to accept the return of the Goods; and
(b) the Goods are returned at the Client’s cost within seven (7) days of the Delivery date; and
(c) the Supplier will not be liable for Goods which have not been stored or used in a proper manner; and
(d) the Goods are returned in the condition in which they were delivered and with all packaging material, brochures and instruction material in as new condition as is reasonably possible in the circumstances.
15.3 If the Supplier accepts that the Client is entitled to reject the Goods following their return pursuant to clause 15.2(b) the Supplier will reimburse the Client’s actual and reasonable costs of return Delivery.
15.4 The Supplier will not accept the return of Goods for credit.
15.5 Subject to clause 15.1, non-stocklist items or Goods made to the Client’s specifications are not acceptable for credit or return.
16. Warranty
16.1 Subject to the conditions of warranty set out in clause 16.2 the Supplier warrants that if any defect in any Goods manufactured or Services provided by the Supplier becomes apparent and is reported to the Supplier within twelve (12) months of the date of Delivery (time being of the essence) then the Supplier will either (at the Supplier’s sole discretion) replace or remedy the defect.
16.2 The conditions applicable to the warranty given by clause 16.1 are:
(a) the warranty shall not cover any defect or damage which may be caused or partly caused by or arise through:
(i) failure on the part of the Client to properly maintain any Goods or serviced item; or
(ii) failure on the part of the Client to follow any instructions or guidelines provided by the Supplier; or
(iii) any use of any Goods or serviced item otherwise than for any application specified on a quote or order form; or
(iv) the continued use of any Goods or serviced item after any defect becomes apparent or would have become apparent to
a reasonably prudent operator or user; or
(v) fair wear and tear, any accident or act of God.
(b) the warranty shall cease and the Supplier shall thereafter in no circumstances be liable under the terms of the warranty if the defect is repaired, altered or overhauled without the Supplier’s consent.
(c) in respect of all claims the Supplier shall not be liable to compensate the Client for any delay in either replacing or remedying the defective Goods or Services or in properly assessing the Client’s claim.
16.3 For Goods not manufactured by the Supplier, the warranty shall be the current warranty provided by the manufacturer of the Goods. The Supplier shall not be bound by nor be responsible for any term, condition, representation or warranty other than that which is given by the manufacturer of the Goods.
17. Compliance with Laws
17.1 The Client and the Supplier shall comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities that may be applicable to the Goods and/or Services, including any WorkSafe health and safety laws relating or any other relevant safety standards or legislation pertaining to the Services.
17.2 Both parties acknowledge and agree:
(a) to comply with the Building Act 2004 (including any subsequent Amendments) and Code of Ethics, in respect of all workmanship and building products to be supplied during the course of the Services; and
(b) that Services will be provided in accordance with any current relevant Australian/New Zealand Standards applicable.
17.3 Where the Client has supplied products for the Supplier to complete the Services, the Client acknowledges that it accepts responsibility for the suitability of purpose and use for their products and the intended use and any faults inherent in those products. However, if in the Supplier’s opinion, it is believed that the materials supplied are non-conforming products and will not conform with New Zealand regulations, then the Supplier shall be entitled, without prejudice, to halt the Services until the appropriate conforming products are sourced and all costs associated with such a change to the plans and design will be invoiced in accordance with clause 6.2.
17.4 The Client shall obtain (at the expense of the Client) all licenses and approvals that may be required for the Services.
17.5 All work will be tested to ensure that it is electrically safe and is in accordance with the wiring rules and other standards applying to the electrical installation under the Electrical Safety Regulations. All of the cabling work will comply with all relevant Australian and New Zealand Wiring standards.
17.6 Notwithstanding clause 17.1 and pursuant to the Health & Safety at Work Act 2015 (the “HSW Act”), the Supplier agrees at all times to comply with sections 28 and 34 of the “HSW Act” with meeting their obligations for health and safety laws in the workplace regardless of whether they may be the party in control of the site or where they may be acting as a sub-contractor for the Client who has engaged a third party head contractor.
18. Consumer Guarantees Act 1993 and the Fair Trading Act 1986
18.1 If the Client is acquiring Goods for the purposes of a trade or business, the Client acknowledges that the provisions of the Consumer Guarantees Act 1993 (“CGA”) do not apply to the supply of Goods by the Supplier to the Client.
18.2 The Supplier agrees to abide by the provisions of the Fair Trading Act 1986 (“FTA”).
19. Intellectual Property
19.1 Where the Supplier has designed, drawn or developed Goods for the Client, then the copyright in any designs and drawings and documents shall remain the property of the Supplier. Under no circumstances may such designs, drawings and documents be used without the express written approval of the Supplier by the Client for any advertising or marketing.
19.2 Drawings, sketches, painting, photographs, designs, dummies, models or the like devices made or procured and manipulated by the Supplier, and negatives, positives, blocks, engravings, stencils, dies, plates or cylinders made from the Supplier’s original design, or from a design furnished by the Client, remain the exclusive property of the Supplier, unless otherwise
agreed upon in writing.
19.3 Sketches and dummies submitted by the Supplier on a speculative basis shall remain the property of the Supplier. They shall not be used for any purpose other than that nominated by the Supplier and no ideas obtained there from may be used without the consent of the Supplier, and the Supplier shall be entitled to compensation from the Client for any unauthorised use of such sketches and dummies.
19.4 The Client warrants that all designs, specifications or instructions given to the Supplier will not cause the Supplier to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify the Supplier against any action taken by a third party against the Supplier in respect of any such infringement.
19.5 The Client agrees that the Supplier may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings or Goods which the Supplier has created for the Client.
20. Default and Consequences of Default
20.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at the Supplier’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
20.2 If the Client owes the Supplier any money the Client shall indemnify the Supplier from and against all costs and disbursements incurred by the Supplier in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, the Supplier’s collection agency costs, and bank dishonour fees).
20.3 Further to any other rights or remedies the Supplier may have under this Contract, if a Client has made payment to the Supplier, and the transaction is subsequently reversed, the Client shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by the Supplier under this clause 20 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Client’s obligations under this Contract.
20.4 Without prejudice to the Supplier’s other remedies at law the Supplier shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to the Supplier shall, whether or not due for
payment, become immediately payable if:
(a) any money payable to the Supplier becomes overdue, or in the Supplier’s opinion the Client will be unable to make a payment when it falls due;
(b) the Client has exceeded any applicable credit limit provided by the Supplier;
(c) the Client becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes
an assignment for the benefit of its creditors; or
(d) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.
21. Cancellation
21.1 Without prejudice to any other remedies the parties may have, if at any time either party is in breach of any obligation (including those relating to payment) under these terms and conditions the other party may suspend or terminate the supply of Services or purchase of Goods to the other party. Neither party will be liable for any loss or damage the other party suffers because one of the parties has exercised its rights under this clause.
21.2 If the Supplier, due to reasons beyond the Supplier’s reasonable control, is unable to the deliver any Goods and/or Services to the Client, the Supplier may cancel any Contract to which these terms and conditions apply or cancel Delivery of Goods and/or Services at any time before the Goods and/or Services are delivered by giving written notice to the Client. On giving such notice the Supplier shall repay to the Client any money paid by the Client for the Goods and/or Services. The Supplier shall not be liable for any loss or damage whatsoever arising from such cancellation.
21.3 The Client may cancel Delivery of the Goods and/or Services by written notice served within twenty-four (24) hours of placement of the order. Failure by the Client to otherwise accept Delivery of the Goods and/or Services shall place the Client in breach of this Contract. 21.4 Cancellation of orders for Goods made to the Client’s specifications, or for non-stocklist items, will definitely not be accepted once production has commenced, or an order has been placed.
22. Privacy Policy
22.1 All emails, documents, images or other recorded information held or used by the Supplier is “Personal Information” as defined and referred to in clause 22.3 and therefore considered confidential. The Supplier acknowledges its obligation in relation to the handling, use, disclosure and processing of Personal Information pursuant to the Privacy Act 2020 (“the Act”) including Part II of the OECD Guidelines as set out in the Act. The Supplier acknowledges that in the event it becomes aware of any data breaches
and/or disclosure of the Client’s Personal Information, held by the Supplier that may result in serious harm to the Client, the Supplier will notify the Client in accordance with the Act. Any release of such Personal Information must be in accordance with the Act and must be approved by the Client by written consent, unless subject to an operation of law.
22.2 Notwithstanding clause 22.1, privacy limitations will extend to the Supplier in respect of Cookies where the Client utilises the Supplier’s website to make enquiries. The Supplier agrees to display reference to such Cookies and/or similar tracking technologies, such as pixels and web beacons (if applicable), such technology allows the collection of Personal Information such as the Client’s: (a) IP address, browser, email client type and other similar details; (b) tracking website usage and traffic; and (c) reports are available to the Supplier when the Supplier sends an email to the Client, so the Supplier may collect and review that information (“collectively Personal Information”) If the Client consents to the Supplier’s use of Cookies on the Supplier’s website and later wishes to withdraw that consent, the Client may manage and control the Supplier’s privacy controls via the Client’s web browser, including removing Cookies by deleting them from the browser history when exiting the site.
22.3 The Client authorises the Supplier or the Supplier’s agent to:
(a) access, collect, retain and use any information about the Client;
(i) including, name, address, D.O.B, occupation, driver’s license details, electronic contact (email, Facebook or Twitter details),
medical insurance details or next of kin and other contact information (where applicable), previous credit applications,
credit history or any overdue fines balance information held by the Ministry of Justice for the purpose of assessing the Client’s creditworthiness; or
(ii) for the purpose of marketing products and services to the Client.
(b) disclose information about the Client, whether collected by the Supplier from the Client directly or obtained by the Supplier from any other source, to any other credit provider or any credit reporting agency for the purposes of providing or obtaining a credit reference,
debt collection or notifying a default by the Client.
22.4 Where the Client is an individual the authorities under clause 22.3 are authorities or consents for the purposes of the Privacy Act 2020.
22.5 The Client shall have the right to request (by e-mail) from the Supplier, a copy of the Personal Information about the Client retained by the Supplier and the right to request that the Supplier correct any incorrect Personal Information.
22.6 The Supplier will destroy Personal Information upon the Client’s request (by e-mail) or if it is no longer required unless it is required in order to fulfil the obligations of this Contract or is required to be maintained and/or stored in
accordance with the law.
22.7 The Client can make a privacy complaint by contacting the Supplier via e- mail. The Supplier will respond to that complaint within seven (7) days of receipt and will take all reasonable steps to make a decision as to the complaint within twenty (20) days of receipt of the complaint. In the event that the Client is not satisfied with the resolution provided, the Client can make a complaint to the Privacy Commissioner at http://www.privacy.org.nz
23. Suspension of Services
23.1 Where the Contract is subject to section 24A of the Construction Contracts Act 2002, the Client hereby expressly acknowledges that:
(a) the Supplier 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 Client, and:
(i) the payment is not paid in full by the due date for payment in
accordance with clause 6.4 and/or any subsequent amendments or new legislation and no payment schedule has
been given by the Client; or
(ii) a scheduled amount stated in a payment schedule issued by
the Client in relation to the payment claim is not paid in full by the due date for its payment; or
(iii) the Client has not complied with an adjudicator’s notice that the Client must pay an amount to the Supplier by a particular date; and
(iv) the Supplier has given written notice to the Client of its intention to suspend the carrying out of construction work
under the construction Contract.
(b) if the Supplier 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 be suffered, by the Client or by any person claiming through the Client; and
(iii) is entitled to an extension of time to complete the Contract; and
(iv) keeps its rights 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 Supplier 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 Supplier under the Contract and Commercial Law Act
2017; or
(ii) enable the Client to exercise any rights that may otherwise have been available to the Client under that Act as a direct consequence of the Supplier suspending work under this provision;
(d) due to any act or omission by the Client, the Client effectively precludes the Supplier from continuing the Services or performing or complying with the Supplier’s obligations under this Contract, then without prejudice to the Supplier’s other rights and remedies, the
Supplier may suspend the Services immediately after serving on the Client a written notice specifying the payment default or the act,
omission or default upon which the suspension of the Services is based. All costs and expenses incurred by the Supplier as a result of such suspension and recommencement shall be payable by the
Client as if they were a variation.
23.2 If pursuant to any right conferred by this Contract, the Supplier suspends the Services and the default that led to that suspension continues un-remedied subject to clause 21.1 for at least ten (10) working days, the Supplier shall be entitled to terminate the Contract, in accordance with clause 21.
24. Service of Notices
24.1 Any written notice given under this Contract shall be deemed to have been given and received:
(a) by handing the notice to the other party, in person;
(b) by leaving it at the address of the other party as stated in this Contract;
(c) by sending it by registered post to the address of the other party as
stated in this Contract;
(d) if sent by facsimile transmission to the fax number of the other party
as stated in this Contract (if any), on receipt of confirmation of the transmission;
(e) if sent by email to the other party’s last known email address.
24.2 Any notice that is posted shall be deemed to have been served, unless the contrary is shown, at the time when by the ordinary course of post, the notice would have been delivered.
25. Trusts
25.1 If the Client at any time upon or subsequent to entering in to the Contract is acting in the capacity of trustee of any trust or as an agent for a trust (“Trust”) then whether or not the Supplier may have notice of the Trust, the Client covenants with the Supplier as follows:
(a) the Contract extends to all rights of indemnity which the Client now or subsequently may have against the Trust, the trustees and the trust fund;
(b) the Client has full and complete power and authority under the Trust or from the Trustees of the Trust as the case maybe to enter into the Contract and the provisions of the Trust do not purport to exclude or take away the right of indemnity of the Client against the Trust, the trustees and the trust fund. The Client will not release the right of indemnity or commit any breach of trust or be a party to any other action which might prejudice that right of indemnity;
(c) the Client will not during the term of the Contract without consent in writing of the Supplier (the Supplier will not unreasonably withhold consent), cause, permit, or suffer to happen any of the following events:
(i) the removal, replacement or retirement of the Client as trustee of the Trust;
(ii) any alteration to or variation of the terms of the Trust;
(iii) any advancement or distribution of capital of the Trust; or
(iv) any resettlement of the trust fund or trust property.
26. General
26.1 Any dispute or difference arising as to the interpretation of these terms and conditions or as to any matter arising hereunder, shall be submitted to, and settled by, either adjudication in accordance with section 26 of the Construction Contracts Act 2002 and/or by arbitration in accordance with the Arbitration Act 1996 or its replacement(s).
26.2 The failure by either party to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect that party’s right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
26.3 These terms and conditions and any Contract to which they apply shall be governed by the laws of New Zealand and are subject to the jurisdiction of the Auckland Courts of New Zealand.
26.4 Subject to the CGA, the liability of the Supplier and the Client under this Contract shall be limited to the Price.
26.5 The Supplier may licence and/or assign all or any part of its rights and/or obligations under this Contract without the Client’s consent provided the assignment does not cause detriment to the Client.
26.6 The Client cannot licence or assign without the written approval of the Supplier.
26.7 The Supplier may elect to subcontract out any part of the Services but shall not be relieved from any liability or obligation under this Contract by so doing. Furthermore, the Client agrees and understands that they have no authority to give any instruction to any of the Supplier’s sub-contractors without the authority of the Supplier.
26.8 The Client agrees that the Supplier may amend their general terms and conditions for subsequent future Contracts with the Client by disclosing such to the Client in writing. These changes shall be deemed to take effect from the date on which the Client accepts such changes, or otherwise at such time as the Client makes a further request for the Supplier to provide Goods and/or Services to the Client.
26.9 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm, national or global pandemics and/or the implementation of regulation, directions, rules or measures being enforced by Governments or embargo, including but not limited to, any Government imposed border lockdowns (including, worldwide destination ports), etc, (“Force Majeure”) or other event beyond the reasonable control of either party. This clause does not apply to a failure by the Client to make any payment due to the Supplier, following cessation of a Force Majeure.
26.10 Both parties warrant that they have the power to enter into this Contract and have obtained all necessary authorisations to allow them to do so, they are not insolvent and that this Contract creates binding and valid legal obligations on them.
