TERMS OF TRADE
(a) The following terms of trade (“Terms”) shall apply to building and construction services (“Services”) and building materials (“Goods”) provided to you by GFS (“us, we, our”). These Terms will prevail if there is any inconsistency with any other document.
1.2 Quotes and Estimates
(a) These Terms apply to any quotations we give you. Unless otherwise expressly recorded in writing, any pricing information we provide to you shall be based on information supplied by you.
(b) You are solely responsible for the accuracy of any information upon which a quote is based.
(c) Any changes to the quantities, measurements or specifications or nature of the services required subsequent to any quote provided by us or any inaccuracies or misstatements in the information provided to us, shall constitute a variation and we reserve the right to change the quote previously provided by us.
(d) If we provide an estimate we are not bound to supply the Goods or Services at the estimated price and you are liable for the actual price of any Goods or Services purchased as invoiced by us.
(e) You shall accept the quotation by signing the acceptance form accompanying the quotation and signing a copy of any plans and specifications attached to the quotation, if provided. The acceptance of the quotation shall constitute a binding contract and acceptance of our Terms of Trade herein.
(f) Except as expressly provided in these terms of trade, no variation or alteration to the scope of the building work shall be binding on the parties unless recorded in writing and signed by both parties, including any adjustment to the quoted price.
(a) You agree that we have no obligation to inquire into the authority of any person placing orders on your behalf. It is your risk and responsibility to obtain every necessary or prudent authorisation (including licences, permits and consents) in relation to the Goods and Services we supply to you.
(b) You warrant that you own the site or have absolute rights to authorise performance of the services at the site. You unreservedly indemnify us against any claim, damages, loss, costs (including all legal costs) or harm that may be suffered as a consequence of us carrying out the services where you were not so entitled or authorised.
1.4 Your Obligations and Risk
(a) You must strictly comply with any instructions, directions, recommended uses and applications and any cautions and/or warnings (“our Instructions”) we provide you in respect of the Goods and Services.
(b) We will not be liable for any direct or indirect damage, economic loss of any kind, or any other loss or expenses caused by or contributed by your failure to comply with our Instructions.
(c) You acknowledge that you are solely liable for:
(i) ensuring the Site where we are to perform the Services is ready for the Goods and Services and that we shall have clear and free access to the site;
(ii) any extra costs incurred by us as a result of any incorrect measurements supplied by you; and
(iii) ensuring that we and our contractors have adequate access to and from the Site in order to perform the Services; and
(iv) obtaining all consents and permits required for the services and providing evidence to us.
(d) You acknowledge that any Goods provided are at your risk from the date and time they are delivered to you.
1.5 Goods & Services
(a) Where we are required to install the Goods you warrant that the structure of the premises in or upon which these Goods are to be installed or erected is sound and will sustain the installation and work incidental thereto and we shall not be liable for any claims, demands, losses, damages, costs and expenses howsoever caused or arising should the premises be unable to accommodate the installation.
(b) We shall accept no responsibility for Services undertaken by any third-party contractor employed by us. If the Buyer believes that they have any claim in relation to Services undertaken by that third party, then said claim must be made against the third-party contractor in the first instance.
(c) You agree to inspect the Goods on delivery and shall within seven (7) days of delivery (time being of the essence) notify us of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. You agree to give us an opportunity to inspect the Goods within a reasonable time following delivery if you believe the Goods are defective in any way. If you fail to comply with these provisions the Goods shall be presumed to be free from any defect or damage. For defective Goods, which we have agreed in writing that you are entitled to reject, our liability is limited to either (at our discretion) replacing the Goods or repairing the Goods.
(d) For any Goods not manufactured by us, the applicable warranty shall be the current warranty provided by the manufacturer of the Goods. We 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.
1.6 Limitation of Liability
(a) Subject to clause 1.15 we will not be liable for any direct or indirect loss or damage, including without limitation; economic loss, loss of profits or savings (or for any indirect or consequential loss or damage), however caused, arising out of or in connection with the supply of Goods or Services, including without limitation as a result of the following:
(i) damage to the Goods or Services at the Site;
(ii) delays or termination of the Services due to any circumstances outside our control including as a result of weather conditions, delay or cessation in the supply of materials we require to complete the Services, strikes, lockouts, war or violence;
(iii) incorrect measurements, plans or other information supplied by you or any other party;
(iv) any services undertaken by any third-party contractor employed by or contracted by us.
(b) Our liability in respect of all claims for loss damage or injury arising from a breach or our obligations under these Terms or from any act or omission by us is limited in each case to the lesser of:
(i) replacement or repair of the affected Goods or resupply of the Services.
(ii) payment of the reasonable cost of replacing or repairing the affected Goods or supplying the Services.
(iii) the price of the affected Goods or Services.
(c) All claims must be made in writing and are subject to verification or acceptance by us.
1.7 Your Indemnity
(a) You will indemnify us:
(i) for any physical, direct and indirect damage, economic loss or other loss or cost or expenses (including legal expenses on a solicitor and client basis), and will fully indemnify us against any claims or proceedings against us to the extent caused or contributed by you (or any of your agents or employees) or arising from a breach of these Terms; and
(ii) for the cost of the Goods and our time if we are unable to perform the Services due to circumstances within your control e.g. insufficient access to the Site.
(a) Unless otherwise stated, all quotes are exclusive of GST.
(b) You agree and acknowledge that items purchased on your behalf such as hardware and other materials and components may be subject to price fluctuations which are beyond the control of GFS. Where such price fluctuations will affect the contract price you will be notified in writing of any resulting variation to the price. We may increase or decrease our quote by notice to you in our sole discretion by the amount of any increase or decrease in the cost of any items affecting the costs of supply, production and/or delivery of the goods between the date of the quotation and the date of delivery and any additional services required due to unforeseen circumstances such as poor weather, difficulty in accessing the site, work not being completed by a third party.
(a) You agree to the following:
(i) We may in our discretion require payment of a deposit.
(ii) Payment for any Goods is due on delivery of the Goods.
(iii) If approved by us in writing, you must pay us in cleared funds by the 20th of the month following the date of our invoice.
(iv) All invoices for progress payments will be prepared to meet the provisions of the Construction Contracts Act 2002. All invoices issued pursuant to the contract shall be in the form of a payment plan within the meaning of the Construction Contracts Act 2002. You are hereby put on notice of the requirements of the Construction Contracts Act 2002 in terms of the issuing of payment schedules.
(v) To pay us by cash, credit card or internet bank deposit only (unless we approve some other payment method).
(vi) If we require you to pay a deposit this must be paid immediately on acceptance of the quote and is non-refundable.
(vii) If in our opinion your credit worthiness deteriorates before completion of the performance of our Services or supply of the Goods, we may require full or partial payment at any time or the provision of security in a form acceptable to us. If such payment or security is not provided we may cease supplying the Services or the Goods.
(viii) You may not deduct or withhold any amount (whether by way of set-off counter claim or otherwise) from any money owing to GFS.
(ix) That at our discretion costs of delivery are payable in addition or are for your account.
1.10 Intellectual Property
(a) You agree that any intellectual property rights in the Goods or arising out of the performance of the Services or supply of Goods are and shall remain our property. You warrant that any design or drawing provided by you does not infringe the intellectual property rights of any other person. You agree that we may use any documents, designs, drawings or Goods created by us for you for the purposes of advertising, marketing or entry into any competition.
(b) Copyright of all design work, plans and documents, will remain the property of the designer. You shall be entitled, on payment of all fees and other project-related costs, to use the documents for the specific purpose for which they were prepared, but for no other purpose.
(a) If any of the events set out in clause 1.11(b) occur we may without prejudice to and in addition to any other rights or remedies we may have, exercise all or any of the following rights:
(i) delay delivery of any Goods or the supply or performance of any Goods or Services until the matter is resolved to our satisfaction and we shall not be liable to you for any loss or damage you suffer as a result of us taking this action;
(ii) suspend or cancel in whole or in part these Terms or any other contract between us by written notice to you.
(iii) recover from you all amounts for any damage, losses, cost or expenses including actual legal costs and expenses arising from your default or non-payment;
(iv) charge and you must pay default interest at the rate of 22% per annum (calculated on a daily basis) until all amounts owed to us are paid in full including actual legal costs and other costs (including debt collection costs) and expenses incurred by or on behalf of us in enforcing or defending all or any of our rights (including our right to payment for any Goods and Services supplied);
(v) by notice to you require that all amounts owed to us whether due or not are paid immediately.
(b) The events are:
(i) breach of your obligations (including payment obligations) under these Terms or any other contract with us;
(ii) you entering into any negotiations for any scheme of arrangement, composition or compromise with your creditors;
(iii) you, in our sole opinion, being unable to pay your debts (including contingent liabilities) as they fall due;
(iv) you passing any resolution to liquidate or becoming the subject of any liquidation proceedings;
(v) you have a receiver or a receiver or manager appointed over the whole or part of your property or undertaking; or
(vi) you become bankrupt or commit an act of bankruptcy.
(c) We may cancel any contract to which these Terms apply or cancel delivery of Goods at any time before the Goods are delivered by giving written notice to you. On giving such notice we shall repay to you any sums paid in respect of the Price. We shall not be liable for any loss or damage whatsoever arising from such cancellation.
(d) In the event that you cancel delivery of the Goods you will be liable for any loss incurred by us (including, but not limited to, any loss of profits) up to the time of cancellation. Any loss incurred by us must be paid by you within five days of the cancellation date provided that cancellation of orders for Goods made to your specifications or non-stocklist items will not be accepted, once production has commenced.
1.12 Personal Property Securities Act 1999 (“PPSA”)
(a) You acknowledge that these Terms create a security interest in any Goods we supply to you as security for your obligations to us under these Terms and this security interest is registerable in the Personal Property Securities Register.
(b) You must sign and deliver any documents and do anything else that we require to ensure that we have a perfected first ranking security interest in the goods under the Personal Properties Securities Act 1999 (“PPSA”).
(c) You waive any right to receive a copy of a verification statement under the PPSA and agree to the extent permitted by law that:
(i) Where we have rights in addition to, or existing separately from those in Part 9 of the PPSA, those rights will continue to apply and in particular will not be limited by section 109 of the PPSA;
(ii) Sections 114(1)(a), 133 and 134 of the PPSA will not apply; and
(iii) You will have none of the rights referred to in sections 116, 117(1)(c), 119, 120(2), 125, 129 and 131 of the PPSA and you waive your rights to object under section 121 and to redeem under section 132.
(d) You will be responsible to GFS for any costs or damages incurred in reclaiming and disposing of unpaid goods and/or materials. Such costs include but are not limited to loss in value, cost of repossession, damaged premises and recovery, storage, resale and legal costs, on a solicitor and client basis. These costs shall be recoverable as a debt due to GFS by you.
1.13 Title and Risk to Goods
(a) Ownership of any goods provided shall remain with GFS until payment is made in full. Ownership in the Goods shall not pass upon delivery but shall remain with us until full payment for all monies owing by you to us has been made. Until all monies have been paid:
(i) You hold the Goods supplied as fiduciary for us and will deal with them as agent for and on behalf of us (but will not hold yourself out as our agent to any third parties);
(ii) You shall store our Goods separately consistent with the Goods being our property, and ensure such Goods are able to be separately identified;
(iii) If you resell the Goods supplied the proceeds of any resale will belong to us, and you will pay the same into a separate account for which separate records are kept, and all claims which you hold against third parties will be handed over to us;
(iv) You irrevocably give us and our agents the rights to enter your premises, to remove any of the Goods supplied and sell them;
(v) If any of the Goods become part of a product or mass (through, or by whatever process) such that the identity of those Goods is lost in the product or mass, the security interest created by these terms of trade continue in the product or mass in accordance with the PPSA.
(a) Where GFS is engaged by you to source products from suppliers on your behalf, those products will be sourced on their merits, pricing and value, however you acknowledge, agree and accept that from time to time GFS may be offered, or receive, a cash payment or incentive from a supplier or manufacturer in consideration of utilising their products or services over those of other suppliers or manufacturers.
1.15 Consumer Guarantees Act 1993
(a) You agree that where the Goods or Services are being supplied for the purposes of a business that the Consumer Guarantees Act 1993 will not apply.
1.16 Mortgage and Caveat
(a) You agree that should any goods or materials supplied by GFS be affixed or installed in a property such as to render them a fixture of that property, you shall upon written demand being made by GFS at any time before payment in full is made, execute a memorandum of mortgage over the property in which the goods have become a fixture. You hereby authorise GFS to lodge and maintain a caveat against the title to the property in which the goods have been affixed or installed for the protection of the agreement to mortgage described above.
(a) The warranties, descriptions, representations, or conditions whether by implied by law, trade, custom or otherwise are, and all other liability of GFS, whether in tort, contract or otherwise is, expressly excluded to the fullest extent permitted by law.
1.18 Privacy Information
(a) You and any Guarantor agree that any information about you provided to us may be used by us at any time for any purposes connected with our business including but not limited to direct marketing, debt collection and credit reporting or assessment. You authorise us to provide such information to any external agency or any party for credit information and assessment purposes and that agency or party are hereby authorised to use and continue to use such information as part of their business services. Any personal information will be held at GFS’s registered address, and you have certain right of access to your personal information under the Privacy Act 2020.
1.19 Unsolicited Electronic Messages Act 2007
(a) Under the Unsolicited Electronic Messages Act 2007, you must consent to receiving commercial emails from us. Consent can either be explicit, inferred or deemed. We will infer that we have your consent to send you commercial emails from time to time unless you inform us otherwise by letter or email. The email address for unsubscribing to commercial emails is [email protected].
(a) We will use our reasonable endeavours to perform the Services on the date(s) set out in our quote or estimate. You agree that we are not liable to perform the Services if we are of the opinion that:
(i) the conditions are not appropriate;
(ii) we do not have sufficient access to the Site to perform the Services.
1.21 Dispute Resolution
(a) All disputes and differences between you and GFS touching and concerning this agreement shall be referred to arbitration or adjudication under a single arbitrator or adjudicator appointed by and in accordance with the Building Disputes Tribunal.
1.22 Construction Contracts Act 2002
You hereby expressly acknowledge that:
(a) GFS 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 you, and:
(i) the payment is not paid in full by the due date for payment and no payment schedule has been given by you; or
(ii) a scheduled amount stated in a payment schedule issued to you in relation to the payment claim is not paid in full by the due date for its payment; or
(iii) you have not complied with an adjudicator’s notice that you must pay an amount to GFS by a particular date; and
(iv) GFS has given written notice to you of its intention to suspend the carrying out of construction work under the construction contract.
(b) If GFS 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 you or by any person claiming through you; 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 GFS exercises the right to suspend work, the exercise of that right does not:
(i) affect any rights that would otherwise have been available to GFS under the Contract and Commercial Law Act 2017; or
(ii) enable you to exercise any rights that may otherwise have been available to you under that Act as a direct consequence of GFS suspending work under this provision.
(a) You acknowledge that these Terms are confidential as between the parties and shall not be disclosed to other individuals, organisations, institutions or social media.
(b) You also acknowledge that through your association with GFS you may come into possession of confidential information (including but not limited to products, marketing, designs and other intellectual proprietary rights). You agree that you will treat such confidential information as confidential and will not disclose it to any other party (nor allow it to be disclosed to any other party) and shall take appropriate steps to ensure that such information cannot be accessed or used by any unauthorised party.
(a) You agree that time is of the essence in respect of your obligations to us.
(b) We may licence or sub-contract all or part of our rights of obligations without your consent.
(c) We will not be prevented from enforcing any of our rights under this agreement because on an earlier occasion we did not enforce those rights.
(d) All notices to be given pursuant to this agreement will be given in accordance with sections 185 to 189 of the Personal Properties Securities Act 1999.
(e) While you are not entitled to assign your rights under these terms we may.
(f) You agree that we may issue any proceedings in respect of these terms in any court that suits us. The law that governs these terms is New Zealand law.
(g) We may in our sole discretion vary these terms of trade from time to time by notice to you.
(h) Any provision of these terms that is held to be invalid or unenforceable for any reason shall be severed from and shall not affect the remaining provisions of these terms.
(i) You agree that these terms express the entire understanding between us and that there have been no representations made by or on behalf of us that have been relied upon by you that are not contained in these terms.
(j) Where there is more than one of you your liability shall be joint and several