Trade Link Plumbing and Gas Ltd
Terms and Conditions of Trade
1.1 “Tradelink” shall mean Tradelink Plumbing and Gas Ltd its successors and assigns or any person acting on behalf of and with the authority of Tradelink Plumbing and Gas Ltd.
1.2 “Client” shall mean the Client (or any person acting on behalf of and with the authority of the Client) as described on any quotation, work authorisation or other form as provided by Tradelink to the Client.
1.3 “Guarantor” means that person (or persons), or entity, who agrees to be liable for the debts of the Client on a principal debtor basis.
1.4 “Goods” shall mean Goods supplied by Tradelink to the Client (and where the context so permits shall include any supply of Services as hereinafter defined) and includes Goods described on any invoices, quotation, work authorisation or any other forms as provided by Tradelink to the Client.
1.5 “Services” shall mean all services supplied by Tradelink to the Client and includes any advice or recommendations (and where the context so permits shall include any supply of Goods as defined above).
1.6 “Price” shall mean the price payable for the Goods as agreed between Tradelink and the Client in accordance with clause 3 of this contract.
2.1 Any instructions received by Tradelink from the Client for the supply of Goods and/or the Client’s acceptance of Goods supplied by Tradelink shall constitute acceptance of the terms and conditions contained herein.
2.2 Where more than one Client has entered into this agreement, the Clients shall be jointly and severally liable for all payments of the Price.
2.3 Upon acceptance of these terms and conditions by the Client the terms and conditions are binding and can only be amended with the written consent of Tradelink.
2.4 The Client shall give Tradelink not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client or any change in the Client’s name and/or any other change in the Client’s details (including but not limited to, changes in the Client’s address, facsimile number, or business practice). The Client shall be liable for any loss incurred by Tradelink as a result of the Client’s failure to comply with this clause.
3. Price And Payment
3.1 At Tradelink’s sole discretion the Price shall be either:
(a) as indicated on invoices provided by Tradelink to the Client in respect of Goods supplied; or
(b) Tradelink’s quoted Price (subject to clause 3.2) which shall be binding upon Tradelink provided that the Client shall accept Tradelink’s quotation in writing within thirty (30) days.
3.2 Tradelink reserves the right to change the Price in the event of a variation to Tradelink’s quotation. Any variation from the plan of scheduled works or specifications (including, but not limited to, any variation as a result of additional works required due to hidden or unidentifiable difficulties beyond the reasonable control of Tradelink such as hard rock barriers below the surface or iron reinforcing rods in concrete) will be detailed in writing and charged for on the basis of Tradelink’s quotation and will be shown as variations on the invoice. Payment for all variations must be made in full at their time of completion.
3.3 At Tradelink’s sole discretion a deposit may be required.
3.4 Tradelink may submit a detailed payment claim at intervals not less than one month for work performed up to the end of each month. The value of work so performed shall include the reasonable value of authorised variations, whether or not the value of such variations has been finally agreed between the parties, and the value of materials delivered to the site but not installed. Progress payment shall be made within twenty (20) working days of each monthly payment claim.
3.5 At Tradelink’s sole discretion:
(a) payment shall be due on delivery of the Goods; or
(b) payment for approved Clients shall be made by instalments in accordance with Tradelink’s payment schedule; or
(c) payment for approved Client’s shall be 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.
3.6 Time for payment for the Goods shall be of the essence and will be stated on the invoice or any other forms. If no time is stated then payment shall be due seven (7) days following the date of the invoice.
3.7 Payment will be made by cash, or by cheque, or by bank cheque, or by credit card, or by direct credit, or by any other method as agreed to between the Client and Tradelink.
3.8 GST and other taxes and duties that may be applicable shall be added to the Price except when they are expressly included in the Price.
4. Delivery Of Goods
4.1 At Tradelink’s sole discretion delivery of the Goods shall take place when the Client takes possession of the Goods at the Client’s nominated address (in the event that the Goods are delivered by Tradelink or Tradelink’s nominated carrier).
4.2 At Tradelink’s sole discretion the costs of delivery are:
(a) included in the Price; or
(b) in addition to the Price; or
(c) for the Client’s account.
4.3 The Client shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery. In the event that the Client is unable to take delivery of the Goods as arranged then Tradelink shall be entitled to charge a reasonable fee for redelivery.
4.4 Delivery of the Goods to a third party nominated by the Client is deemed to be delivery to the Client for the purposes of this agreement.
4.5 Tradelink may deliver the Goods by separate instalments. Each separate instalment shall be invoiced and paid for in accordance with the provisions in these terms and conditions.
4.6 The failure of Tradelink to deliver shall not entitle either party to treat this contract as repudiated.
4.7 Tradelink shall not be liable for any loss or damage whatever due to failure by Tradelink to deliver the Goods (or any of them) promptly or at all, where due to circumstances beyond the control of Tradelink.
5.1 If Tradelink retains ownership of the Goods nonetheless, all risk for the Goods passes to the Client on delivery.
5.2 If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Client, Tradelink is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by Tradelink is sufficient evidence of Tradelink’s rights to receive the insurance proceeds without the need for any person dealing with Tradelink to make further enquiries.
5.3 Where Tradelink gives advice or recommendations to the Client, or the Client’s agent and such advice or recommendations are not acted upon then Tradelink shall not be liable in any way whatsoever for any damages or losses that occur after any subsequent commencement of the works.
5.4 Whilst Tradelink will take all care to avoid damage to any furniture, furnishings, or personal goods, the Client agrees to remove said furniture, furnishings or personal goods from the vicinity of the worksite and agrees that Tradelink shall not be liable for any damage caused to those items.
6.1 Tradelink shall not be liable for any loss or damage caused in accessing the work site beyond reasonable control of Tradelink (including, without limitation, damage to pathways, driveways and concreted or paved or grassed areas).
7. Underground Locations
7.1 Prior to Tradelink commencing any work the Client must advise Tradelink of the precise location of all underground services on the site and clearly mark the same. The underground mains & services the Client must identify include, but are not limited to, electrical services, gas services, sewer services, pumping services, sewer connections, sewer sludge mains, water mains, irrigation pipes, fibre optic cables, oil pumping mains, and any other services that may be on site.
7.2 Whilst Tradelink will take all care to avoid damage to any underground services the Client agrees to indemnify Tradelink in respect of all and any liability claims, loss, damage, costs and fines as a result of damage to services not precisely located and notified as per clause 7.1.
8. Blocked Drain
8.1 The Client acknowledges and agrees that the presence of plant/tree root growth and/or blockages generally indicates damaged pipes. Accordingly the Client agrees that these pipes cannot be fixed by simply removing plant/tree root growth or cleaning the drain, therefore no warranty is provided against this situation arising again in the future and in respect of any work carried out in relation hereto.
8.2 In the event that any of Tradelink’s equipment becomes lodged in the Client’s faulty drain the Client will be liable for all costs incurred by Tradelink in retrieving and/or repairing the equipment.
9.1 Tradelink and Client agree that ownership of the Goods shall not pass until:
(a) the Client has paid Tradelink all amounts owing for the particular Goods; and
(b) the Client has met all other obligations due by the Client to Tradelink in respect of all contracts between Tradelink and the Client.
9.2 Receipt by Tradelink 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 and until then Tradelink’s ownership or rights in respect of the Goods shall continue.
9.3 It is further agreed that:
(a) where practicable the Goods shall be kept separate and identifiable until Tradelink shall have received payment and all other obligations of the Client are met; and
(b) until such time as ownership of the Goods shall pass from Tradelink to the Client Tradelink may give notice in writing to the Client to return the Goods or any of them to Tradelink. Upon such notice being given the rights of the Client to obtain ownership or any other interest in the Goods shall cease; and
(c) the Client is only a bailee of the Goods and until such time as Tradelink has received payment in full for the Goods then the Client shall hold any proceeds from the sale or disposal of the Goods on trust for Tradelink; and
(d) until such time that ownership in the Goods passes to the Client, if the Goods are converted into other products, the parties agree that Tradelink will be the owner of the end products; and
(e) if the Client fails to return the Goods to Tradelink then Tradelink or Tradelink’s agent may enter upon and into land and premises owned, occupied or used by the Client, or any premises where the Goods are situated as the invitee of the Client and take possession of the Goods, and Tradelink will not be liable for any reasonable loss or damage suffered as a result of any action by Tradelink under this clause.
10. Personal Property Securities Act 1999 (“PPSA”)
10.1 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 previously supplied by Tradelink to the Client (if any) and all Goods that will be supplied in the future by Tradelink to the Client.
10.2 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 Tradelink may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register;
(b) indemnify, and upon demand reimburse, Tradelink 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 a financing change statement or a change demand without the prior written consent of Tradelink; and
(d) immediately advise Tradelink 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.
10.3 Tradelink and the Client agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms and conditions.
10.4 The Client waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA.
10.5 Unless otherwise agreed to in writing by Tradelink, the Client waives its right to receive a verification statement in accordance with section 148 of the PPSA.
10.6 The Client shall unconditionally ratify any actions taken by Tradelink under clauses 10.1 to 10.5.
11. Client’s Disclaimer
11.1 The Client hereby disclaims any right to rescind, or cancel any contract with Tradelink or to sue for damages or to claim restitution arising out of any inadvertent misrepresentation made to the Client by Tradelink and the Client acknowledges that the Goods are bought relying solely upon the Client’s skill and judgment.
12.1 The Client shall inspect the Goods on delivery and shall within seven (7) days of delivery (time being of the essence) notify Tradelink of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Client shall afford Tradelink 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 shall fail to comply with these provisions the Goods shall be presumed to be free from any defect or damage. For defective Goods, which Tradelink has agreed in writing that the Client is entitled to reject, Tradelink’s liability is limited to either (at Tradelink’s discretion) replacing the Goods or repairing the Goods.
12.2 Goods will not be accepted for return other than in accordance with 12.1 above.
13.1 For Goods not manufactured by Tradelink, the warranty shall be the current warranty provided by the manufacturer of the Goods. Tradelink 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.
13.2 To the extent permitted by statute, no warranty is given by Tradelink as to the quality or suitability of the Goods for any purpose and any implied warranty, is expressly excluded. Tradelink shall not be responsible for any loss or damage to the Goods, or caused by the Goods, or any part thereof however arising.
14. Consumer Guarantees Act 1993
14.1 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 do not apply to the supply of Goods by Tradelink to the Client.
15. Default & Consequences Of Default
15.1 Interest on overdue invoices shall accrue from the date when payment becomes due daily until the date of payment at a rate of 2.5% per calendar month and such interest shall compound monthly at such a rate after as well as before any judgment.
15.2 If the Client defaults in payment of any invoice when due, the Client shall indemnify Tradelink from and against all costs and disbursements incurred by Tradelink in pursuing the debt including legal costs on a solicitor and own client basis and Tradelink’s collection agency costs.
15.3 Without prejudice to any other remedies Tradelink may have, if at any time the Client is in breach of any obligation (including those relating to payment), Tradelink may suspend or terminate the supply of Goods to the Client and any of its other obligations under the terms and conditions. Tradelink will not be liable to the Client for any loss or damage the Client suffers because Tradelink has exercised its rights under this clause.
15.4 If any account remains overdue after thirty (30) days then an amount of the greater of $20.00 or 10.00% of the amount overdue (up to a maximum of $200) shall be levied for administration fees which sum shall become immediately due and payable.
15.5 Without prejudice to Tradelink’s other remedies at law Tradelink shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to Tradelink shall, whether or not due for payment, become immediately payable in the event that:
(a) any money payable to Tradelink becomes overdue, or in Tradelink’s opinion the Client will be unable to meet its payments as they fall due; or
(b) 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
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.
16.1 Tradelink may cancel any contract to which these terms and conditions apply or cancel delivery of Goods at any time before the Goods are delivered by giving written notice to the Client. On giving such notice Tradelink shall repay to the Client any sums paid in respect of the Price. Tradelink shall not be liable for any loss or damage whatever arising from such cancellation.
16.2 In the event that the Client cancels delivery of the Goods the Client shall be liable for any loss incurred by Tradelink (including, but not limited to, any loss of profits) up to the time of cancellation.
17. Privacy Act 1993
17.1 The Client and the Guarantor/s (if separate to the Client) authorises Tradelink to:
(a) collect, retain and use any information about the Client, for the purpose of assessing the Client’s creditworthiness or marketing products and services to the Client; and
(b) disclose information about the Client, whether collected by Tradelink from the Client directly or obtained by Tradelink 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.
17.2 Where the Client and/or Guarantors are an individual the authorities under clause 18.1 are authorities or consents for the purposes of the Privacy Act 1993.
17.3 The Client and/or Guarantors shall have the right to request Tradelink for a copy of the information about the Client and/or Guarantors retained by Tradelink and the right to request Tradelink to correct any incorrect information about the Client and/or Guarantors held by Tradelink.
18. Construction Contracts Act 2002
18.1 The Client hereby expressly acknowledges that:
(a) Tradelink 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 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 Tradelink by a particular date; and
(iv) Tradelink has given written notice to the Client of its intention to suspend the carrying out of construction work under the construction contract.
(b) if Tradelink 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 Tradelink exercises the right to suspend work, the exercise of that right does not:
(i) affect any rights that would otherwise have been available to Tradelink under the Contractual Remedies Act 1979; 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 Tradelink suspending work under this provision.
19.1 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.
19.2 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 courts of New Zealand.
19.3 Tradelink shall be under no liability whatever to the Client for any indirect loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by Tradelink of these terms and conditions.
19.4 In the event of any breach of this contract by Tradelink the remedies of the Client shall be limited to damages which under no circumstances shall exceed the Price of the Goods.
19.5 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 Tradelink.
19.6 Tradelink may license or sub-contract all or any part of its rights and obligations without the Client’s consent.
19.7 Tradelink reserves the right to review these terms and conditions at any time. If, following any such review, there is to be any change to these terms and conditions, then that change will take effect from the date on which Tradelink notifies the Client of such change.
19.8 The provisions of the Contractual Remedies Act 1979 shall apply to this contract as if section 15(d) were omitted from the Contractual Remedies Act 1979.
19.9 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, drought, storm or other event beyond the reasonable control of either party.
19.10 The failure by Tradelink to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect Tradelink’s right to subsequently enforce that provision.