1. Definitions
1.1. “Agreement” means these terms and conditions of trade as amended from time to time and includes any attachments.
1.2. “the Company” shall mean YR’s Painters Limited, its successors and assigns or any person acting on behalf of and with the authority of the Company.
1.3. “Customer” shall mean the persons or company or entity purchasing from the Company.
1.4. “Guarantor” means that person (or persons) or entity who agrees to be liable for the debts of the Customer on a principal debtor basis.
1.5. “Goods and Services” shall mean all goods and services provided by the Company to the Customer from time to time as indicated and detailed on invoices provided by the Company to the Customer.
1.6. “Contract Price” shall mean the price payable for the Goods and Services as agreed between the Company and the Customer in accordance with clause 2 of this Agreement.
2. Price and Payment
2.1. The Contract Price shall be as indicated on invoices provided by the Company to the Customer in respect of Goods and/or Services supplied or the Company’s quoted Price (subject to clause 2.2)
2.2. The Company reserves the right to vary or alter the Contract Price if a variation to the Goods and/or Services is either requested by the Customer or the variation is due to, but not limited to, the following:
(a) changes to the specifications or layouts of the Goods;
(b) fees incurred by the Company due to placement or site conditions of the premises the Goods are to be installed;
(c) preliminary drawings and designs produced at the Customer’s request, which will be charged for whether or not the job proceeds.
2.3. At the Company’s sole discretion a deposit may be required.
2.4. Time for payment for the Goods and Services 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 twenty (20) days following the end of the month.
2.5. 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 Company.
2.6. GST and other taxes and duties that may be applicable shall be added to the Contract Price except when they are expressly included in the Contract Price.
3. Acceptance
3.1. The Customer will be deemed to have accepted and will be bound by these terms and conditions upon the Customer placing an order for the Goods and Services or accepts delivery of the Goods.
3.2. The Customer accepts that if any changes or amendments are required to the Goods due to the error or misdescription by the Customer, then the Company may charge for the additional attendances. If the order is cancelled or postponed by the Customer, then the Company may require payment by the Customer for work done to date.
4. Delivery Of Goods
4.1. At the Company’s sole discretion delivery of the Goods shall take place when the Customer takes possession of the Goods, whether at the Company’s place of business or delivered to the Customer’s nominated address.
4.2. At the Company’s sole discretion the costs of delivery are:
a. included in the Price; or
b. in addition to the Price; or
c. for the Customer’s account.
4.3. 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 Company shall be entitled to charge a reasonable fee for redelivery.
4.4. 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.
4.5. The Customer must accept delivery even if delivery is late and the Company will not be liable for any loss incurred by the Customer as a result of the late delivery.
5. Title
5.1. The Customer agrees that title to the Goods shall not pass to the Customer until the Customer has paid for the invoiced Goods in full and there are no outstanding obligations in respect of the transfer of the Goods to the Company.
5.2. The Customer further agrees that until ownership of the Goods passes to the Customer in accordance with 5.1 above that the Customer is holding the Goods on behalf of the Company and will immediately return the Goods to the Company immediately upon demand.
5.3. If the Customer fails to return the Goods to the Company then the Company or the Company’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, and the Company will not be liable for any reasonable loss or damage suffered as a result of any action by the Company under this clause.
5.4. The Customer must insure the Goods for the benefit of the Company until ownership of the Goods passes to the Customer in full.
6. Personal Guarantee of Company Directors or Trustees
6.1. If the Customer is a company or trust, the director(s) or trustee(s) signing the Contract (or the credit application form (as applicable)), in consideration for the Company agreeing to supply goods and services and grant credit to the Customer at their request, also sign the Contract (or the credit application form (as applicable)) in their personal capacity and jointly and severally personally undertake as principal debtors to the Company the payment of any and all monies now or hereafter owed by the Customer to the Company and indemnify the Company against non-payment by the Customer. Any personal liability of a signatory hereto shall not exclude the Customer in any way whatsoever from the liabilities and obligations contained in the Contract. The signatories and Customer shall be jointly and severally liable under the terms and conditions of the Contract and for payment of all sums due thereunder.
7. Risk
7.1. Risk of damage to or loss of the Goods passes to the Customer on delivery and the Customer must ensure the Goods are insured prior to delivery.
7.2. If all or part of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Customer, the Company is entitled to receive all insurance proceeds payable for the damaged or destroyed Goods. The Customer authorizes the Company to receive the insurance proceeds on presentation of this Agreement.
7.3. The Company is not obligated to provide the Customer with samples of the Goods other than computer generated samples. The Company will not be obligated to colour match computer generated samples with actual colours and takes no responsibility for any variation of the final product.
7.4. The Customer is responsible for undertaking a final proof of the Goods prior to delivery and the Company will not be liable for any errors detected following completion of the final proof by the Customer.
7.5. If the Customer requires the Company to install the Goods on the Customer’s nominated premises, the Customer warrants that the premises are structurally sound and suitable for installation of the Goods.
8. Intellectual Property
8.1. If the Company has designed, drawn or developed the Goods for the Customer, then copyright in those designs or drawings shall remain the property of the Company.
8.2. The Customer warrants that all designs, specifications, plans or instructions provided to the Company do not impede on any trademark, copyright or patent of any other person or third party and the Customer indemnifies the Company in respect of any breach of trademark, copyright or patent.
9. Personal Property Securities Act 1999 (“PPSA”)
9.1. Upon assenting to this Agreement in writing the Customer acknowledges and agrees that:
a. This Agreement constitutes a security agreement for the purposes of the PPSA; and
b. a security interest is taken in all Goods previously supplied by the Company to the Customer (if any) and all Goods that will be supplied in the future by the Company to the Customer.
9.2. 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 Company 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 Company 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 Company; and
d. immediately advise the Company of any material change in the business practices of selling the Goods which would result in a change in the nature of proceeds derived from such sales.
9.3. The Company and the Customer agree that nothing in section114 (1) (a), 133 and 134 of the PPSA shall apply to this Agreement.
9.4. The Customer waives its rights as a debtor under sections 115, 120(2), 121, 125, 126, 127, 129, 131, and 132 of the PPSA;
9.5. Unless otherwise agreed to in writing by the Company, the Customer waives its right to receive a verification statement in accordance with section 148 of the PPSA.
9.6. The Customer shall unconditionally ratify any actions taken by the Company under clause 7.1 and 7.6.
10. Consumer Guarantee Act 1993
10.1. If the Customer is acquiring Goods for the purposes of a trade or business, the Customer acknowledges that the provisions of the Consumer Guarantees Act 1993 do not apply to the supply of Goods by the Company to the Customer.
11. Default by Customer
11.1. Interest on overdue invoices shall accrue from the date when payment becomes due daily until the date of payment at a rate of 2% per calendar month and such interest shall compound monthly at such a rate after as well as before any judgment.
11.2. if the Customer defaults in payment of any invoice when due, the Customer shall indemnify the Company from and against all costs and disbursements incurred by the Company in pursuing the debt including legal costs on a full indemnity solicitor client basis and the Company collection agency costs.
11.3. Without prejudice to any other remedies the Company may have, the Company may suspend or terminate the supply of Goods to the Customer and any of its other obligations under this Agreement and enter upon any lands or premises where the Goods may be located and repossess the Goods (and without releasing the Customer from any liability in respect of the breach) if at any time:
a. the Customer is in breach of any obligation under this Agreement; or
b. any money payable to the Company becomes overdue or in the Company’s opinion the Customer will be unable to meet its payments as they fall due; or
c. 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
d. a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer;
11.4. The Company will not be liable to the Customer for any loss or damage the Customer suffers because the Company has exercised its rights under this clause.
11.5. Termination of this Agreement under this clause shall not affect the right of the Company to recover from the Customer any moneys due to the Company at the date of such termination or to recover damages in respect of any breach or default by the Customer of this Agreement.
12. Privacy Act 1993
12.1.The Customer and the Guarantor/s (if separate to the Customer) authorises the Company 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; and
b. disclose information about the Customer, whether collected by the Company from the Customer directly or obtained by the Company 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.
12.2. Where the Customer and/or Guarantors are an individual the authorities under clause 9.1 are authorities or consents for the purposes of the Privacy Act 1993.
12.3. The Customer and/or Guarantors shall have the right to request the Company for a copy of the information about the Customer and/or Guarantors retained by the Company and the right to request the Company to correct any incorrect information about the Customer and/or Guarantors held by the Company.
13. Limitation of Liability
13.1. The Company shall be under no liability whatsoever to the Customer for any indirect loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by the Company of this Agreement.
13.2. To the extent permissible by law, the Company excludes any liability for any claim by the Customer or any other person relating to or arising from the renting of the Goods to the Customer and the Customer indemnifies the Company against any claim.
13.3. In the event of any breach of this contact by the Company the remedies of the Customer shall be limited to damages which under no circumstances shall exceed the Contract Price of the Goods.
14. General
14.1. If any provision of this Agreement 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. The words “Company” shall where the context so permits or requires be deemed to include the Owner’s successors or assigns and the words “Customer” shall where the context so permits or requires be deemed to include the Customer’s executors and administrators if an individual or its successors if an incorporated company.
14.3. This Agreement shall be governed by the laws of New Zealand and are subject to the jurisdiction of the courts of New Zealand.
14.4. 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 Company.
14.5. The Company may licence or sub-contract all or any part of its rights and obligations without the Customer’s consent.
14.6. The Company reserves the right to review this Agreement at any time. If following any such review, there is to be any change to this Agreement, then that change will take effect from the date on which the Company notifies the Customer of such change.
14.7. 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.
14.8. The failure by the Company to enforce any provisions of this Agreement shall not be treated as a waiver of that provision, nor shall it affect the Company’s right to subsequently enforce that provision.
14.9. Any costs caused by power failure to Goods may be charged to the Customer.