Terms of Trade

1. Definitions

• 1.1 “Contractor” shall mean Fitz Plumbing and its successors and assignees.
• 1.2 “Customer” shall mean the client or any person acting on behalf of and with the authority of the client.
• 1.3 “Guarantor” means that person (or persons), or entity that guarantees payment of all moneys due and owing to the Contractor under this agreement, whose liability shall be that of the principal debtor.
• 1.4 “Goods” shall have the same meaning as in section 119 of the Contract and Commercial Law Act 2017 and are goods supplied by the Contractor to the Customer (and where the context so permits shall include any supply of Services as hereinafter defined).
• 1.5 “Services” shall mean all services supplied by the Contractor to the Customer and includes any advice or recommendations (and where the context so permits shall include any supply of Goods as defined vide supra).
• 1.6 “Price” shall mean the cost of Goods and Services as agreed between the Contractor and the Customer subject to clause 5 of this agreement.

2. Application of Terms and Conditions

• 2.1 The Terms and Conditions contained herein shall apply to all agreements made between the Customer and the Contractor. Unless otherwise agreed in writing, these Conditions shall apply to the exclusion of any other terms and conditions.
• 2.2 The Customer acknowledges that none of the Contractor’s agents or representatives are authorised to make any representations, statements, conditions or agreements not expressed by the manager of the Contractor in writing and the Contractor is not bound by any such unauthorised statements.

3. Liability of Customer and Guarantor

• 3.1 Where more than one Customer has entered into this agreement, the Customers shall be jointly and severally liable for all payments of the Price.
• 3.2 In consideration of the Contractor providing the Customer with Goods and Services the Guarantor unconditionally guarantees payment of all moneys due and owing to the Contractor under this agreement.
• 3.3 Any instructions received by the Contractor for the supply of Goods and/or Services, and/or the Customer’s acceptance of Goods supplied by the Contractor shall constitute acceptance of the terms and conditions contained herein.

4. Contractor to provide goods and services

• 4.1 The Contractor shall provide Goods and Services in respect of the works specified in the quote vide supra ("the works") together with such other incidental services as the Contractor may consider necessary for the proper performance of the works, and such other goods and services as may be agreed between the parties.
• 4.2 The Goods and/or Services are as described on the invoices, quotation, work authorisation or any other work commencement forms as provided by the Contractor to the Customer.

5. Price And Payment

• 5.1 The Price (costs of the Goods and Service provided pursuant to this agreement) shall be paid by the Customer to the Contractor within 7 days of the date of the Contractor’s invoice without deduction or setoff.
• 5.2 At the Contractor's sole discretion the Price shall be either:
  • (a) As indicated on invoices provided by the Contractor to the Customer in respect of the Goods and Services supplied; or
  • (b) The Contractor’s current price at the date of delivery of the Goods according to the Contractors current Price list; or
  • (c) Subject to clause 5.3, be the Contractors quoted Price, which shall be binding upon the Contractor provided that the Customer shall accept in writing the Contractors quotation within seven (7) days of the date of the quote.
• 5.3 Any variation from the plan of scheduled works or specifications will be charged for on the basis of the Contractor’s quotation and will be shown as extras on the invoice. Payment for all extras must be made in full at their time of completion.
• 5.4 At the Contractor’s sole discretion, a deposit may be required. The deposit amount or percentage of the Price will be stipulated at the time of the order of the Goods/Services and shall become immediately due and payable as a part payment of the Price.
• 5.5 Time for payment for the Goods shall be of the essence and will be stated on the invoice, quotation, or any other order forms. If no time is stated, then payment shall be on delivery of the Goods.
• 5.6 Payment shall be made by cash, or by cheque, or by bank cheque, or by direct credit, or by any other method as agreed to between the Customer and the Contractor.
• 5.7 The Price shall be increased by the amount of any GST and other taxes and duties, which may be applicable, except to the extent that such taxes are expressly included in any quotation given by the Contractor.

6. Default & Consequences Of Default

• 6.1 Interest on overdue invoices shall accrue from the date when payment becomes due daily until the date of payment at a rate of 4% compounding per calendar month and shall accrue at such a rate after as well as before any judgement.
• 6.2 If the Customer defaults in payment of any invoice when due, the Customer shall indemnify the Contractor from and against all of the Contractor’s costs and disbursements including on a solicitor and own client basis and in addition all of the Contractor’s nominee’s costs of collection.
• 6.3 Without prejudice to any other remedies the Contractor may have, if at any time the Customer is in breach of any obligation (including those relating to payment), the Contractor may suspend (including but not limited to withholding or delaying the preparation or issuance of materials, information and or any reports whatsoever) or terminate the supply of Goods to the Customer and any of its other obligations under the terms and conditions. The Contractor will not be liable to the Customer for any loss or damage the Customer suffers because the Contractor exercised its rights under this clause.
• 6.4 If any account remains unpaid at the end of the second month after supply of the Goods or services, an immediate amount of the greater of $20.00 or 10% of the amount overdue shall be levied for administration fees which sum shall become immediately due and payable in addition to the interest payable under clause 6.1 hereof.
• 6.5 In the event that:
  • (a) any money payable to the Contractor becomes overdue, or in the Contractor’s opinion the Customer will be unable to meet its payments as they fall due, or;
  • (b) the Customer 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 Customer or any asset of the Customer,
  then without prejudice to the Contractor’s other remedies at law:
  • (i) the Contractor shall be entitled to cancel all or any part of any order of the Customer which remains unperformed in addition to and without prejudice to any other remedies; and
  • (ii) all amounts owing to the Contractor shall, whether or not due for payment, immediately become due and payable.

7. Delivery of Goods and Risk

• 7.1 Delivery of the Goods shall be made to the Customer’s nominated address. The Customer shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery.
• 7.2 The Contractor may deliver the Goods by separate instalments (in accordance with the agreed delivery schedule). Each separate instalment shall be invoiced and paid for in accordance with the Terms and Conditions contained herein.
• 7.3 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.
• 7.4 The failure of the Contractor to deliver shall not entitle either party to treat this contract as repudiated.
• 7.5 The Contractor shall not be liable for any loss or damage whatsoever due to failure by the Contractor to deliver the Goods (or any of them) promptly or at all, where due to circumstances beyond the control of the Contractor.
• 7.6 If the Customer fails to make any payment by the due date, the Contractor shall be entitled to suspend delivery of the Goods until such payment is made and the Contractor shall be entitled to treat such failure as a repudiation of this agreement by the Customer and to terminate this agreement.

8. Risk

• 8.1 If the Contractor retains ownership of the Goods nonetheless, all risk for the Goods passes to the Customer on delivery.
• 8.2 If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Customer, the Contractor is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by the Contractor is sufficient evidence of the Contractor’s rights to receive the insurance proceeds without the need for any person dealing with the Contractor to make further enquiries.
• 8.3 If the Customer requests the Contractor to leave Goods outside the Contractor’s premises for collection or to deliver the Goods to an unattended location, then such Goods shall be left at the Customer’s sole risk.

9. Title

• 9.1 It is the intention of the Contractor and agreed by the Customer that ownership of the Goods shall not pass until:
  • (a) The Customer has paid all amounts owing for the particular Goods, and
  • (b) The Customer has met all other obligations due by the Customer to the Contractor in respect of all contracts between the Contractor and the Customer.
• 9.2 Receipt by the Contractor 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 Contractor’s ownership or rights in respect of the Goods shall continue.
• 9.3 It is further agreed that:
  • (a) Until such time as ownership of the Goods shall pass from the Contractor to the Customer the Contractor may give notice in writing to the Customer to return the Goods or any of them to the Contractor. Upon such notice the rights of the Customer to obtain ownership or any other interest in the Goods shall cease;
  • (b) If the Customer fails to return the Goods to the Contractor then the Contractor or the Contractor’s agent may enter upon and into land and premises owned, occupied or used by the Customer, or any premises where the Goods are situated as the invitee of the Customer and take possession of the Goods;
  • (c) The Customer is only a bailee of the Goods and until such time as the Contractor has received payment in full for the Goods then the Customer shall hold any proceeds from the sale or disposal of the Goods, up to and including the amount the Customer owes to the Contractor for the Goods, on trust for the Contractor;
  • (d) The Customer shall not deal with the money of the Contractor in any way which may be adverse to the Contractor;
  • (e) The Customer shall not charge the Goods in any way nor grant nor otherwise give any interest in the Goods while they remain the property of the Contractor;
  • (f) The Contractor can issue proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods may not have passed to the Customer; and
  • (g) 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 Contractor will be the owner of the end products.

10. Personal Property Securities Act 1999 (“PPSA”)

• 10.1 Upon assenting to these terms and conditions in writing the Customer 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 the Contractor to the Customer (if any) and all Goods that will be supplied in the future by the Contractor to the Customer.
• 10.2 The Customer 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 Contractor 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 Contractor 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 the Contractor; and
  • (d) Immediately advise the Contractor 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 The Contractor and the Customer agree that nothing in sections 114(1)(a), 117(1)(c), 133 and 134 of the PPSA shall apply to these terms and conditions.
• 10.4 The Customer 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 the Contractor, the Customer waives its right to receive a verification statement in accordance with section 148 of the PPSA.
• 10.6 The Customer shall unconditionally ratify any actions taken by the Contractor under clauses 10.1 to 10.5.

11. Security and Charge

• 11.1 Despite anything to the contrary contained herein or any other rights which the Contractor may have howsoever:
  • (a) Where the Customer and/or the Guarantor (if any) is the owner of land, realty or any other asset capable of being charged, both the Customer and/or the Guarantor agree to mortgage and/or charge all of their joint and/or several interest in the said land, realty or any other asset to the Contractor or the Contractor’s nominee to secure all amounts and other monetary obligations payable under these terms and conditions. The Customer and/or the Guarantor acknowledge and agree that the Contractor (or the Contractor’s nominee) shall be entitled to lodge where appropriate a caveat, which caveat shall be withdrawn once all payments and other monetary obligations payable hereunder have been met.
  • (b) Should the Contractor elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Customer and/or Guarantor shall indemnify the Contractor from and against all the Contractor’s costs and disbursements including legal costs on a solicitor and own client basis.
  • (c) To give effect to the provisions of clause [11.1 (a) and (b)] inclusive hereof the Customer and/or the Guarantor (if any) do hereby irrevocably nominate constitute and appoint the Contractor or the Contractor’s nominee, namely the Credit Manager or higher, as the Customer’s and/or Guarantor’s true and lawful attorney to execute mortgages and charges (whether registrable or not) including such other terms and conditions as the Contractor and/or the Contractor’s nominee shall think fit in his/her/its/their absolute discretion against the joint and/or several interest of the Customer and/or the Guarantor in any land, realty or asset in favour of the Contractor and in the Customer’s and/or Guarantor’s name as may be necessary to secure the said Customer’s and/or Guarantor’s obligations and indebtedness to the Contractor and further to do and perform all necessary and other acts including instituting any necessary legal proceedings, and further to execute all or any documents in the Contractor’s absolute discretion which may be necessary or advantageous to give effect to the provisions of this clause.

12. Cancellation

• 12.1 The Contractor may cancel any contract to which these terms and conditions apply or cancel the delivery of Goods at any time before the Goods are delivered by giving written notice to the Customer. On giving such notice the Contractor shall repay to the Customer any sums paid in respect of the Price. The Contractor shall not be liable for any loss or damage whatsoever arising from such cancellation.
• 12.2 In the event that the Customer cancels delivery of Goods the Customer shall be liable for any loss incurred by the Contractor (including, but not limited to, any loss of profits) up to the time of cancellation.

13. Privacy Act 2020

• 13.1 The Customer and the Guarantor/s (if separate to the Customer) authorises the Contractor to:
  • (a) Collect, retain and use any information about the Customer, for the purpose of assessing the Customer’s creditworthiness or marketing products and services to the Customer.
  • (b) To disclose information about the Customer, whether collected by the Contractor from the Customer directly or obtained by the Contractor 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 Customer.
• 13.2 Where the Customer is an individual the authorities under (clause 13.1) are authorities or consents for the purposes of the Privacy Act 2020.
• 13.3 The Customer shall have the right to request the Contractor for a copy of the information about the Customer retained by the Contractor and the right to request the Contractor to correct any incorrect information about the Customer held by the Contractor.

14. General

• 14.1 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.
• 14.2 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.
• 14.3 The Contractor shall be under no liability whatever to the Customer for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by the Contractor of these terms and conditions.
• 14.4 In the event of any breach of this contract by the Contractor the remedies of the Customer shall be limited to damages which under no circumstances shall exceed the Price of the Goods.
• 14.5 The Customer shall not be entitled to set off against or deduct from the Price any sums owed or claimed to be owed to the Customer by the Contractor.
• 14.6 The Contractor may license or sub-contract all or any part of its rights and obligations without the Customer’s consent.
• 14.7 The Contractor reserves the right to review these terms and conditions at any time and from time to 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 the Contractor notifies the Customer of such change.
• 14.8 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lockout, industrial action, fire, flood, storm, pandemic, or other event beyond the reasonable control of either party.
• 14.9 The failure by the Contractor to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect the Contractor’s right to subsequently enforce that provision.