TOT

Fencemen Fencing Contractors – Terms & Conditions of Trade
1. Definitions
1.1 “FFC” means Adam Batten T/A Fencemen Fencing Contractors,
its successors and assigns or any person acting on behalf of
and with the authority of Adam Batten T/A Fencemen Fencing
Contractors.
1.2 “Client” means the person/s ordering the Works as specified in
any invoice, document or order, and if there is more than one
Client is a reference to each Client jointly and severally.
1.3 “Works” means all Works or Materials provided by FFC to the
Client at the Client’s request from time to time (where the
context so permits the terms ‘Works’ or ‘Materials’ shall be
interchangeable for the other).
1.4 “Price” means the Price payable for the Works as agreed
between FFC and the Client in accordance with clause below.
2. Acceptance
2.1 The Client is taken to have exclusively accepted and is
immediately bound, jointly and severally, by these terms and
conditions if the Client places an order for or accepts provision
of the Works.
2.2 These terms and conditions may only be amended with FFC’s
consent in writing and shall prevail to the extent of any
inconsistency with any other document or agreement between
the Client and FFC.
2.3 Where the Client requesting or organising FFC to provide the
Works is acting with, or on behalf of, any third party and that
third party is intended to be responsible for the payment of the
Price (of any part thereof), then in the event that the third party
does not make payment when due, the Client acknowledges
that they shall be liable for the payment of the outstanding
amount as if they had contracted the Works solely on their own
behalf.
3. Change in Control
3.1 The Client shall give FFC 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,
contact phone or fax number/s, or business practice). The
Client shall be liable for any loss incurred by FFC as a result of
the Client’s failure to comply with this clause.
4. Price and Payment
4.1 At FFC’s sole discretion the Price shall be either:
(a) as indicated on invoices provided by FFC to the Client in
respect of Works provided; or
(b) FFC’s quoted Price (subject to clause ) which shall be
binding upon FFC provided that the Client shall accept FFC’s
quotation in writing within thirty (30) days.
4.2 FFC reserves the right to change the Price:
(a) if a variation to the Materials which are to be provided is
requested; or
(b) if a variation to the Works originally scheduled (including
any applicable plans or specifications) is requested; or
(c) where additional Works are required due to the discovery of
hidden or unidentifiable difficulties (including, but not
limited to, poor weather conditions, limitations to accessing
the site, obscured site defects (unseen obstructions and the
discover of asbestos, etc.), safety considerations,
prerequisite work by any third party not being completed,
the unavailability of required site utilities, hard rock barriers
below the surface or iron reinforcing rods in concrete, etc.)
which are only discovered on commencement of the Works.
4.3 At FFC’s sole discretion, a non-refundable deposit may be
required.
4.4 Time for payment for the Works being of the essence, the Price
will be payable by the Client on the date/s determined by FFC,
which may be:
(a) by way of instalments/progress payments in accordance
with FFC’s payment schedule;
(b) payment for approved Clients 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;
(c) the date specified on any invoice or other form as being the
date for payment; or
(d) failing any notice to the contrary, the date which is seven
(7) days following the date of any invoice given to the Client
by FFC.
4.5 Payment may be made by cash, cheque, bank cheque,
electronic/on-line banking, or by any other method as agreed to
between the Client and FFC.
4.6 Unless otherwise stated the Price does not include GST. In
addition to the Price the Client must pay to FFC an amount
equal to any GST FFC must pay for any provision of Works by
FFC under this or any other agreement. 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.
5. Provision of the Works
5.1 Subject to clause it is FFC’s responsibility to ensure that the
Works start as soon as it is reasonably possible.
5.2 The Works commencement date will be put back and/or the
completion date extended by whatever time is reasonable in
the event that FFC claims an extension of time (by giving the
Client written notice) where completion is delayed by an event
beyond FFC’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 Works; or
(c) notify FFC that the site is ready.
5.3 Any time or date given by FFC to the Client is an estimate only.
FFC shall not be liable for any loss or damage whatsoever due
to failure by FFC to provide the Works (or any part of them)
promptly or at all, where due to circumstances beyond the
reasonable control of FFC. However both parties agree that
they shall make every endeavour to enable the Works to be
provided at the time and place as was arranged between both
parties. In the event that FFC is unable to provide the Works as
agreed solely due to any action or inaction of the Client then
FFC shall be entitled to charge a reasonable fee for re-providing
the Works at a later time and date.
5.4 FFC shall not be responsible for digging land out under fence
lines nor removal of soil from the site, nor will FFC handle the
removal of asbestos products under any circumstances.
5.5 The Client shall ensure that:
(a) FFC has clear and free access to the nominated site at the
agreed time, and to ensure that access is suitable to accept
the weight of laden trucks and/or front end loader, to enable
FFC to carry out the Works;
(b) the marking out of the fence line, placement of boundary
pegs prior to the installation of the fence. FFC accepts no
responsibility for any subsequent defect in the Works
resulting from the Client’s failure to comply with this clause;
(c) any existing fence (including existing footings), trees and
tree branches, vines, shrubs garden beds, pots, watering
systems, etc. are removed or cleared 600mm either side of
the boundary line to allow FFC clear access along the
proposed fence line prior to commencement of the Works.
5.6 The Client shall provide FFC with a suitable free power source
and adequate water supply to enable them to carry out the
Works.
6. Risk
6.1 FFC shall maintain a contract works insurance policy until the
Works are completed. Upon completion of the Works all risk for
the Works shall immediately pass to the Client.
6.2 FFC may at its discretion notify the Client that it requires to
store at the site Materials, fittings and appliances, or plant and
tools required for the Works, in which event the Client shall
supply FFC a safe area for storage and shall take all reasonable
efforts to protect all items so stored from possible destruction,
theft or damage. In the event that any such items are
destroyed, stolen or damaged then the cost of repair or
replacement shall be the Client’s responsibility.
6.3 The Client warrants that any structures to which the Materials
are to be affixed are able to withstand the installation thereof,
and FFC shall not be liable for any claims, demands, losses,
damages, costs and expenses howsoever caused or arising in
connection with the Works or any services incidental thereto. If,
for any reason (including the discovery of asbestos), FFC
reasonably forms the opinion that the Client’s premises is not
safe for the installation of Materials to proceed then FFC shall
be entitled to delay installation of the Materials (in accordance
with the provisions of clause ) until FFC is satisfied that it is safe
for the installation to proceed.
6.4 The Client acknowledges that Materials may exhibit variations
in texture, shade, colour, surface, finish, markings, veining, and
may contain natural fissures, occlusions, and indentations.
Whilst FFC will make every effort to match sales samples to the
finished Materials, they accept no liability whatsoever where
such samples differ to the Materials provided.
6.5 The Client acknowledges that Materials provided may:
(a) fade or change colour over time; and
(b) expand, contract or distort (including bowing, splitting and
warping) as a result of exposure to heat, cold, weather. (The
Client acknowledges that applying oil or an oil based paint
may prevent or reduce this occurrence); and
(c) mark or stain if exposed to certain substances; and
(d) be damaged or disfigured by impact or scratching.
6.6 Location of underground services by a licensed service locator
is mandatory prior to commencement of the Works. “Dial
Before You Dig” must be consulted and any potential
underground services marked on site. Whilst FFC will take all
care to avoid damage to any underground services, the Client
agrees to indemnify FFC 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. If the Client
requests FFC to engage the service locator then this shall be in
addition to the Price.
6.7 FFC 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 FFC.
6.8 Where fencing is installed on a retaining wall FFC shall not be
liable for any movement in the fence due to consolidation, or
the movement of soil or any other component of the retaining
wall.
6.9 The Client accepts that fence palings shall be fitted at FFC’s
sole discretion unless otherwise agreed.
7. Client’s Responsibilities
7.1 It is intended by FFC and agreed by the Client that it is the
Client’s responsibility to:
(a) inspect the fence immediately after construction. Any
alleged defects must be notified in writing in accordance
with clause ; and
(b) supervise the marking out of the fence line, and placement
of boundary pegs. If the Client fails to comply with this
clause then FFC accepts no responsibility if the fence is not
built on the line; and
(c) remove all garden beds, shrubs, tree branches, pots, and
irrigation from within 600m of either side of the boundary. If
the Client fails to comply with this clause, FFC accepts no
responsibility for any resultant damage, and the Client shall
be liable for any additional costs associated with clearing
the area; and
(d) supply power and water to the project area. The Client shall
be liable for any additional costs incurred by FFC if the
Client fails to do so. This clause (d) shall not apply to vacant
lots.
7.2 Where the Client has supplied products for FFC to complete the
Works, the Client acknowledges that they accept responsibility
for the suitability of purpose, quality and any faults inherent in
those products. FFC shall not be responsible for any defects in
the Works, any loss or damage to the products and/or Materials
(or any part thereof), howsoever arising from the use of
products supplied by the Client.
8. Compliance with Laws
8.1 The Client and FFC shall comply with the provisions of all
statutes, regulations and bylaws of government, local and other
public authorities that may be applicable to the Works,
including any occupational health and safety laws relating to
building/construction sites and any other relevant safety
standards or legislation.
8.2 The Client shall obtain (at the expense of the Client) all licenses
and approvals that may be required for the Works.
9. Title
9.1 The Client acknowledges and agrees that the Client’s
obligations to FFC for the provision the Works shall not cease,
and ownership of the Materials shall not pass, until:
(a) the Client has paid FFC all amounts owing for the particular
Works; and
(b) the Client has met all other obligations due by the Client to
FFC in respect of all contracts between FFC and the Client.
9.2 Receipt by FFC 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 FFC
ownership or rights in respect of the Works, and this
agreement, shall continue.
9.3 It is further agreed that:
(a) until ownership of the Works passes to the Client in
accordance with clause , that the Client is only a bailee of
the Materials, and unless those Materials have become
fixtures, must return them to FFC on request; and
(b) unless the Materials have become fixtures the Client
irrevocably authorises FFC to enter any premises where FFC
believes the Materials are kept and recover possession
thereof.
(c) FFC may commence proceedings to recover the Price,
notwithstanding that ownership of the Works has not passed
to the Client.
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 Materials and collateral
(accounts) – being a monetary obligation of the Client to FFC
for Works – that have previously been provided and that will
be provided in the future by FFC 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 FFC may reasonably
require to register a financing statement or financing
change statement on the Personal Property Securities
Register;
(b) indemnify, and upon demand reimburse, FFC for all
expenses incurred in registering a financing statement or
financing change statement on the Personal Property
Securities Register or releasing any registration made
thereby;
(c) not register a financing change statement or a change
demand without the prior written consent of FFC.
10.3 FFC 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 FFC, 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 FFC
under clauses to .
11. Security and Charge
11.1 In consideration of FFC agreeing to provide the Works, 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, 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).
11.2 The Client indemnifies FFC from and against all FFC’s costs and
disbursements including legal costs on a solicitor and own
client basis incurred in exercising FFC’s rights under this clause.
11.3 The Client irrevocably appoints FFC and each director of FFC as
the Client’s true and lawful attorney/s to perform all necessary
acts to give effect to the provisions of this clause including, but
not limited to, signing any document on the Client’s behalf.
12. Client’s Disclaimer
12.1 The Client hereby disclaims any right to rescind, or cancel any
contract with FFC or to sue for damages or to claim restitution
arising out of any inadvertent misrepresentation made to the
Client by FFC and the Client acknowledges that the Works are
bought relying solely upon the Client’s skill and judgment.
13. Defects and Warranties
13.1 The Client shall inspect the Works on completion and shall
within seven (7) days of such time (being of the essence) notify
FFC of any alleged defect, error or omission, shortage in
quantity, damage or failure to comply with the description or
quote. The Client shall afford FFC an opportunity to inspect the
Works within a reasonable time following such notification if the
Client believes the Works are defective in any way. If the Client
shall fail to comply with these provisions the Works shall be
presumed to be free from any defect or damage. For defective
Works, which FFC has agreed in writing that the Client is
entitled to reject, FFC’s liability is limited to either (at FFC’s
discretion) rectify or re-provide the Works.
13.2 Materials will not be accepted for return other than in
accordance with above.
13.3 For Materials not manufactured by FFC, the warranty shall be
the current warranty provided by the manufacturer of the
Materials. FFC 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 Materials.
14. Consumer Guarantees Act 1993
14.1 If the Client is acquiring Works 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 provision of
Works by FFC to the Client.
15. Intellectual Property
15.1 The Client warrants that all designs, specifications or
instructions given to FFC will not cause FFC to infringe any
patent, registered design or trademark in the execution of the
Client’s order and the Client agrees to indemnify FFC against
any action taken by a third party against FFC in respect of any
such infringement.
16. Default and Consequences of Default
16.1 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 FFC’s sole discretion such interest shall compound monthly
at such a rate) after as well as before any judgment.
16.2 If the Client owes FFC any money the Client shall indemnify FFC
from and against all costs and disbursements incurred by FFC
in recovering the debt (including but not limited to internal
administration fees, legal costs on a solicitor and own client
basis, FFC’s collection agency costs, and bank dishonour fees).
16.3 Without prejudice to any other remedies FFC may have, if at
any time the Client is in breach of any obligation (including
those relating to payment) under these terms and conditions
FFC may suspend or terminate the provision of Works to the
Client. FFC will not be liable to the Client for any loss or damage
the Client suffers because FFC has exercised its rights under
this clause.
16.4 Without prejudice to FFC’s other remedies at law FFC shall be
entitled to cancel all or any part of any order of the Client which
Please note that a larger print version of these terms and conditions is available from FFC on request. ©
Copyright – EC Credit Control 1999 – 2014
Fencemen Fencing Contractors – Terms & Conditions of Trade
remains unfulfilled and all amounts owing to FFC shall, whether
or not due for payment, become immediately payable if:
(a) any money payable to FFC becomes overdue, or in FFC’s
opinion the Client will be unable to make a payment when it
falls due;
(b) the Client becomes insolvent or bankrupt, 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.
17. Cancellation
17.1 FFC may cancel any contract to which these terms and
conditions apply or cancel provision of the Works at any time
before the Works have commenced by giving written notice to
the Client. On giving such notice FFC shall repay to the Client
any sums paid in respect of the Price. FFC shall not be liable for
any loss or damage whatsoever arising from such cancellation.
17.2 In the event that the Client cancels the provision of the Works
the Client shall be liable for any and all loss incurred (whether
direct or indirect) by FFC as a direct result of the cancellation
(including, but not limited to, any loss of profits).
17.3 Cancellation of orders for Materials 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.
18. Privacy Act 1993
18.1 The Client authorises FFC or FFC’s agent to:
(a) access, collect, retain and use any information about the
Client;
(i) (including 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
FFC from the Client directly or obtained by FFC 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.
18.2 Where the Client is an individual the authorities under clause
are authorities or consents for the purposes of the Privacy Act
1993.
18.3 The Client shall have the right to request FFC for a copy of the
information about the Client retained by FFC and the right to
request FFC to correct any incorrect information about the
Client held by FFC.
19. General
19.1 The failure by FFC to enforce any provision of these terms and
conditions shall not be treated as a waiver of that provision, nor
shall it affect FFC’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.
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 Auckland Courts of New
Zealand.
19.3 FFC shall be under no liability whatsoever to the Client for any
indirect and/or consequential loss and/or expense (including
loss of profit) suffered by the Client arising out of a breach by
FFC of these terms and conditions (alternatively FFC’s liability
shall be limited to damages which under no circumstances shall
exceed the Price).
19.4 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 FFC nor to withhold payment of any invoice because part of
that invoice is in dispute.
19.5 FFC may license or sub-contract all or any part of its rights and
obligations without the Client’s consent.
19.6 The Client agrees that FFC may amend these terms and
conditions at any time. If FFC makes a change to these terms
and conditions, then that change will take effect from the date
on which FFC notifies the Client of such change. The Client will
be taken to have accepted such changes if the Client makes a
further request for FFC to provide any Works to the Client.
19.7 Neither party shall be liable for any default due to any act of
God, war, terrorism, strike, lock-out, industrial action, fire,
flood, storm or other event beyond the reasonable control of
either party.
19.8 The Client warrants that it has the power to enter into this
agreement and has obtained all necessary authorisations to
allow it to do so, it is not insolvent and that this agreement
creates binding and valid legal obligations on it.
Please note that a larger print version of these terms and conditions is available from FFC on request. ©
Copyright – EC Credit Control 1999 – 2014