Terms of Trade
STANDARD TERMS AND CONDITIONS
The terms and conditions set out below apply to every supply of goods and services made by Kiwi Plumbing and Gas Ltd to the Customer. By ordering, utilising and/or requiring services with Kiwi Plumbing and Gas Ltd the Customer agrees that it is bound by these terms of trade and that the Customers own terms and conditions do not apply.
1. Definitions
1.1. “Gasfitter/Plumber” shall mean Kiwi Plumbing and Gas Ltd, its successors and assigns or any person acting on behalf of and with the authority of Kiwi Plumbing and Gas Ltd
1.2. “Customer” shall mean the Customer (or any person acting on behalf of and with the authority of the Customer) as described on any quotation, work authorization or other form as provided by the Gasfitter/Plumber to the Customer.
1.3. “Guarantor” shall mean that person (or persons) who agrees to be liable for the debts of the Customer on a principal debtor basis.
1.4. “Goods” shall mean all Goods supplied by the Gasfitter/Plumber to the Customer (and where the context so permits shall include any supply of Services as hereinafter defined) and includes Goods described on any invoices, quotation, work authorization or any other forms as provided by the Gasfitter/Plumber to the Customer.
1.5. “Services” shall mean all services supplied by the Gasfitter/Plumber to the Customer 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 the Gasfitter/Plumber and the Customer in accordance with clause 3 of this contract.
2. General
2.1. This contract shall be subject to the laws and statutes of New Zealand and subject to the jurisdiction of the court geographically closest to the physical address of the Gasfitter/Plumber.
2.2. The Gasfitter/Plumber may sub-contract any part of this contract. No sub-contractor has any authority to agree to any variation of this contract on behalf of the Gasfitter/Plumber.
2.3. Any instructions received by the Gasfitter/Plumber from the Customer for the supply of works shall constitute acceptance of this contract.
2.4. The Gasfitter/Plumber may submit a detailed payment claim at intervals less than one (1) week for work performed up to the end of each week.
2.5. To end the contract, the Customer must give the Gasfitter/Plumber a signed notice giving the details of why the contract is being ended. The Plumber is entitled to a reasonable price for any works completed, and materials ordered but not installed, as at the date the contract is ended.
2.6. Where a quotation is given then it shall only be binding for seven (7) days from the date of issue, and where additional works are required the Customer agrees to pay the additional price for such works.
3. Acceptance
3.1. Any instructions received by the Gasfitter/Plumber from the Customer for the supply of Goods and/or the Customer’s acceptance of Goods supplied by the Gasfitter/Plumber shall constitute acceptance of the terms and conditions contained herein.
3.2. Where more than one Customer has entered this agreement, the Customers shall be jointly and severally liable for all payments of the Price.
3.3. Upon acceptance of these terms and conditions by the Customer, the terms and conditions are binding and can only be amended with the written consent of the Gasfitter/Plumber.
3.4. The Customer shall give the Gasfitter/Plumber not less than fourteen (14) days prior written notice of any proposed change of ownership of the Customer or any change in the Customer’s name and/or any other change in the Customer’s details (including but not limited to, changes in the Customer’s address, facsimile number, or business practice). The Customer shall be liable for any loss incurred by the Gasfitter/Plumber as a result of the Customer’s failure to comply with this clause.
3.5. Goods are supplied by the Gasfitter/Plumber only on the terms and conditions of trade herein to the exclusion of anything to the contrary in the terms of the Customer’s order notwithstanding that any such order is placed on terms that purport to override these terms and conditions of trade.
4. Price and Payment
4.1. At the Gasfitter’s/Plumber’s sole discretion the Price shall be either:
4.1.1. as indicated on invoices provided by the Gasfitter/Plumber to the Customer in respect of Goods supplied; or
4.1.2. the Gasfitter’s/Plumber’s current price at the date of delivery of the Goods according to the Gasfitter’s/Plumber’s current Price list; or
4.1.3. the Gasfitter’s/Plumber’s quoted Price (subject to clause 4.2) which shall be binding upon the Gasfitter/Plumber provided that the Customer shall accept the Gasfitter’s/Plumber’s quotation in writing within seven (7) days.
4.2. The Gasfitter/Plumber reserves the right to change the Price in the event of a variation to the Gasfitter’s/Plumber’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 such as hard rock barriers below the surface or as a result of increases to the Gasfitter/Plumber in the cost of materials and labour) will be charged for on the basis of the Gasfitter’s/Plumber’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.
4.3. At the Gasfitter’s/Plumber’s sole discretion a deposit may be required.
4.4. At the Gasfitter’s/Plumber’s sole discretion:
4.4.1. payment shall be due on delivery of the Goods; or
4.4.2. payment for approved Customers shall be due seven (7) days following the end of the month in which a statement is posted to the Customer’s address or address for notices; or
4.4.3. payment for approved Customers shall be made by instalments in accordance with the Gasfitter’s/Plumber’s payment schedule
4.5. The Gasfitter/Plumber may submit detailed progress payment claims in accordance with the Gasfitter’s/Plumber’s specified payment schedule. Such payment claims may include the reasonable value of authorized variations and the value of any materials delivered to the site but not yet installed.
4.6. 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.
4.7. 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 Customer and the Gasfitter/Plumber.
4.8. 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.
5. Default
5.1. Without prejudice to any other rights or remedies that the Gasfitter/Plumber may have against the Customer, the Customer agrees that in the event of default in payment by the Customer then the Customer agrees to pay on demand:
5.1.1. All costs (including, but not limited to, collection agency fees, commission, legal fees and any other costs on a solicitor and own client basis) incurred by the Gasfitter/Plumber in recovering any amounts payable by the Owner to the Plumber; and
5.1.2. interest on the amount outstanding at the end of each month in which the Owners account is in arrears at the rate of two percent (2%) per month (compounding) with such a rate after as well as before any judgement; and
5.1.3. a monthly administration fee of twenty five dollars ($25) by way of damages payable on the last day of each month in which the Customers’ account is in default.
6. Delivery of Goods
6.1. At the Gasfitter’s/Plumber’s sole discretion delivery of the Goods shall take place when:
6.1.1. the Customer takes possession of the Goods at the Gasfitter’s/Plumber’s address; or
6.1.2. the Customer takes possession of the Goods at the Customer’s nominated address.
6.2. The Customer shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery. In the event that the Customer is unable to take delivery of the Goods as arranged then the Gasfitter/Plumber shall be entitled to charge a reasonable fee for redelivery.
6.3. Delivery of the Goods to a third party nominated by the Customer is deemed to be delivery to the Customer for the purposes of this agreement.
6.4. The failure of the Gasfitter/Plumber to deliver shall not entitle either party to treat this contract as repudiated.
6.5. The Gasfitter/Plumber shall not be liable for any loss or damage whatsoever due to failure by the Gasfitter/Plumber to deliver the Goods (or any of them) promptly or at all, where due to circumstances beyond the control of the Gasfitter/Plumber.
7. Risk
7.1. If the Gasfitter/Plumber retains ownership of the Goods nonetheless, all risk for the Goods passes to the Customer on delivery.
7.2. If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Customer, the Gasfitter/Plumber is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by the Gasfitter/Plumber is sufficient evidence of the Gasfitter’s/Plumber’s rights to receive the insurance proceeds without the need for any person dealing with the Gasfitter/Plumber to make further enquiries.
7.3. The Customer acknowledges and agrees that the presence of plant/tree root growth and/or blockages generally indicates damaged pipes. Accordingly the Customer 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 thereto.
7.4. Where the Gasfitter/Plumber is required to install the Goods the Customer warrants that the structure of the premises or equipment in or upon which these Goods are to be installed or erected is sound and will sustain the installation and work incidental thereto and the Gasfitter/Plumber shall not be liable for any claims, demands, losses, damages, costs and expenses howsoever caused or arising should the premises or equipment be unable to accommodate the installation.
8. Damages
8.1. The Customer shall ensure that the Gasfitter/Plumber has clear and free access to the work site at all times to enable them to undertake the works. The Gasfitter/Plumber 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 Gasfitter/Plumber.
9. Underground locations
9.1. Prior to the Gasfitter/Plumber commencing any work the Customer must advise the Gasfitter/Plumber of the precise location of all underground services on the site and clearly mark the same. The underground mains & services the Customer 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, telephone cables, fibre optic cables, oil pumping mains, and any other services that may be on site.
9.2. Whilst the Gasfitter/Plumber will take all care to avoid damage to any underground services the Customer agrees to indemnify the Gasfitter/Plumber 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 98.1.
10. Title
10.1. The Gasfitter/Plumber and Customer agree that the ownership of the Goods shall not pass until:
10.1.1. the Customer has paid the Gasfitter/Plumber all amounts owing for the particular Goods; and
10.1.2. the Customer has met all other obligations due by the Customer to the Gasfitter/Plumber in respect of all contracts between the Gassfitter/Plumber and the Customer.
10.2. Receipt by the Gasfitter/Plumber 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 the Gasfitter’s/Plumber’s ownership or rights in respect of the Goods shall continue.
10.3. It is further agreed that:
10.3.1. where practicable the Goods shall be kept separate and identifiable until the Gasfitter/Plumber shall have received payment and all other obligations of the Customer are met; and
10.3.2. Until such time ownership of the Goods shall pass from the Gasfitter/Plumber to the Customer the Gasfitter/Plumber may give notice in writing to the Customer to return the Goods or any of them to the Gasfitter/Plumber. Upon such notice being given the rights of the Customer to obtain ownership or any other interest in the Goods shall cease; and
10.3.3. the Customers is only a bailee of the Goods and until such time as the Gasfitter/Plumber has received payment in full for the Goods then the Customer shall hold any proceeds from the sale of the disposal of the Goods, up to and including the amount the Customer owes to the Gasfitter/Plumber for the Goods, on trust for the Gasfitter/Plumber; and
10.3.4. until such time that ownership in the Goods passes to the Customer, if the Goods are converted into other products, the parties agree that the Gasfitter/Plumber will be the owner of the end products; and
10.3.5. if the Customer fails to return the Goods to the Gasfitter/Plumber then the Gasfitter/Plumber or the Gasfitter’s/Plumber’s agent may (as the invitee of the Customer) enter upon and into land and premises owned, occupied or used by the Customer, or any premises where the Goods are situated and take possession of the Goods, and the Gasfitter/Plumber will not be liable for any reasonable loss or damage suffered as a result of any action by the Gasfitter/Plumber under this clause.
11. Privacy Act
11.1. The Customer acknowledges that personal information collected or held by the Gasfitter/Plumber is provided and may be held, used and disclosed for the purpose enabling the Gasfitter/Plumber to notify any credit agency of default on any obligation of the Customer to the Gasfitter/Plumber and enabling the Gasfitter/Plumber to provide such personal information to any credit agency so such credit agency can maintain correct accounting records.
12. Customer’s Disclaimer
12.1. The Customer hereby disclaims any right to rescind, or cancel any contract with the Gasfitter/Plumber or to sue for damages or to claim restitution arising out of any inadvertent misrepresentation made to the Customer by the Gasfitter/Plumber and the Customer acknowledges that the Goods are bought relying solely upon the Customer’s skill and judgment.
13. Defects
13.1. The Customer shall inspect the Goods on delivery and shall within seven (7) days of delivery (time being of the essence) notify the Gasfitter/Plumber of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Customer shall afford the Gasfitter/Plumber an opportunity to inspect the Goods within a reasonable time following delivery if the Customer believes the Goods are defective in any way. If the Customer shall fail to comply with these provisions the Goods shall be presumed to be free from any defect or damage. For defective Goods, which the Gasfitter/Plumber has agreed in writing that the Customer is entitled to reject, the Gasfitter’s/Plumber’s liability is limited to either (at the Gasfitter’s/Plumber’s discretion) replacing the Goods or repairing the Goods.
14. Returns
14.1. Returns will only be accepted provided that:
14.1.1. the Customer has complied with the provisions of clause 12.1; and
14.1.2. the Gasfitter/Plumber has agreed in writing to accept the return of the Goods; and
14.1.3. the Goods are returned at the Customer’s cost within seven (7) days of the delivery date; and
14.1.4. the Gasfitter/Plumber will not be liable for Goods which have not been stored or used in a proper manner; and
14.1.5. 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.
14.2. The Gasfitter/Plumber may (in its discretion) accept the return of Goods for credit but this may incur a handling fee of ten percent (10%) of the value of the returned Goods plus any freight.
14.3. Non-stocklist items or Goods made to the Customer’s specifications are under no circumstances acceptable for credit or return.
15. Warranty
15.1. Subject to the conditions of warranty set out in Clause 14.2 the Gasfitter/Plumber warrants that if any defect in any workmanship of the Gasfitter/Plumber becomes apparent and is reported to the Gasfitter/Plumber within twelve (12) months of the date of delivery (time being of the essence) then the Gasfitter/Plumber will either (at the Gasfitter’s/Plumber’s sole discretion) replace or remedy the workmanship.
15.2. The conditions applicable to the warranty given by Clause 14.1 are:
15.2.1. the warranty shall not cover any defect or damage which may be caused or partly caused by or arise through:
15.2.1.1. failure on the part of the Customer to properly maintain any Goods; or
15.2.1.2. failure on the part of the Customer to follow any instructions or guidelines provided by the Gasfitter/Plumber; or
15.2.1.3. any use of any Goods otherwise than for any application specified on a quote or order form; or
15.2.1.4. the continued use of any Goods after any defect becomes apparent or would have become apparent to a reasonably prudent operator or user; or
15.2.1.5. Fair wear and tear, any accident or act of God.
15.2.2. The warranty shall cease and the Gasfitter/Plumber shall thereafter in no circumstances be liable under the terms of the warranty if the workmanship is repaired, altered or overhauled without the Gasfitter’s/Plumber’s consent.
15.2.3. In respect of all claims the Gasfitter/Plumber shall not be liable to compensate the Customer for any delay in either replacing or remedying the workmanship or in properly assessing the Customer’s claim.
15.3. For Goods not manufactured by the Gasfitter/Plumber, the warranty shall be the current warranty provided by the manufacturer of the Goods. The Gasfitter/Plumber 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.
15.4. In the case of second hand Goods, the Customer acknowledges that he has had full opportunity to inspect the same and that he accepts the same with all faults and that no warranty is given by the Gasfitter/Plumber as to the quality or suitability for any purpose and any implied warranty, statutory or otherwise, is expressly excluded. The Gasfitter/Plumber shall not be responsible for any loss or damage to the Goods, or caused by the Goods, or any part thereof however arising.