Frontline Plumbing Limited
TERMS AND CONDITIONS OF TRADE FOR BUSINESS CUSTOMERS (“Terms of Trade”)
1. Application of Terms of Trade
1.1 These terms apply whenever Frontline Plumbing Limited (“FLP”) provides goods, materials and services of any kind to business customers (“customers”). These terms of trade form part of every quotation contract and dealing customers have with FLP.
1.2 No employee or representative of FLP is authorised to make any representation which conflicts with these terms of trade without confirmation in writing by the manager of FLP.
2.1 Unless otherwise agreed in writing, payment is due:
- (a) for customers who have completed an FLP Credit Application and established a credit account with FLP (“a credit account”), payment of an account or invoice, whether it be a final account or invoice or an account or invoice for a progress payment is due by the 20th of the month following the date of invoice.
- (b) for customers who do not have a credit account, payment of an account or invoice, whether it be a final account or invoice or an account or invoice for a progress payment is immediately due in full upon FLP completing the work.
2.2 The customer may not deduct or withhold any amount whether by way of set off, counterclaim, abatement, retention or otherwise from the amount charged to the customer by FLP.
2.3 Interest may be charged on overdue accounts at 2% per month.
3.1 Goods, machinery, equipment and vessels which are stored by FLP for the customer shall be entirely at the risk of the customer in all respects.
4. Retention of Title and Personal Property Securities Act
4.1 Until payment has been made of all money owing by the customer, the customer acknowledges and agrees that:
- (a) title to any goods or materials supplied by FLP does not pass until all money owing to FLP has been paid in full;
- (b) until paid for, any goods or materials supplied are held by the customer as bailee and as agent for FLP;
- (c) the customer irrevocably gives FLP authority without the necessity of giving any notice to enter any premises or board any vessel to remove any goods or materials supplied by FLP and not paid for by the customer;
- (d) where the goods or materials or any of them are completely or partly attached to any other equipment, vessel or structure, FLP may disconnect and remove their property.
4.2 These terms of trade create a Security Interest under the Personal Property Securities Act 1999 in all of the customers present and after acquired personal property except personal property not acquired from FLP (“Security Interest”).
4.3 The signing of any purchase order, work specification, credit application, job card or invoice which refers to these terms of trade shall be deemed to incorporate these terms to the intent they are a security agreement enforceable against a third party.
5.1 FLP warrants that subject to the limitation of liability in clauses 6.1, 6.2 and 6.3 it will repair any defects in its workmanship occurring within 6 months of the completion of work involved.
5.2 No claim will be available under this warranty unless written notice of the claim is received by FLP as soon as reasonably possible after the defect is discovered, nor will any claim be available if the work alleged to be defective has been modified or incorrectly maintained, installed or operated and that is, or has contributed to, the cause of the defect.
5.3 It is a condition of this warranty that if FLP is required to repair any defect the repair will be carried out at such place and time as FLP specify and the customer is responsible for shipment of the defective goods.
5.4 This warranty does not apply to any defective goods or materials not manufactured by FLP and no warranties are given by FLP in respect of such goods or materials. In the case where the manufacturer or supplier of any such goods or materials provides any warranty, then FLP (to the extent that it is able to do so) will make such warranty available to the customer.
5.5 In any event FLP under this warranty is subject to the limitation of liability in clause 6.
6. Limitation of Liability
6.1 Except for such guarantees as cannot be excluded by law by virtue of the Consumer Guarantees Act 1993 and the warranty referred to in clause 5 above, any claim arising from all warranties, guarantees, conditions, descriptions, representations or conditions, including conditions as to fitness or suitability for any purpose, tolerance to any conditions, merchantability, appearance, safety, durability or otherwise, whether implied by law, trade, customer or otherwise are, and all other liability of FLP whether in tort (including negligence), contract or otherwise is expressly limited to the amount set out in clause 6.2.
6.2 Where FLP is liable to the customer then unless otherwise agreed in writing between the customer and FLP, the maximum liability of FLP to the customer howsoever arising shall not exceed the lesser of:
- (a) the contract price, or
- (b) the actual cost to FLP for work or goods which are the subject of the claim, or
- (c) the sum of NZ$5000.00 (calculated at the normal charges to customers but excluding GST).
6.3 FLP shall not be liable for:
- (a) any loss of profits, or
- (b) any consequential, indirect or special loss, or
- (c) damage, injury, cost or loss of any kind (except that covered by FLP warranty),
arising directly or indirectly from any breach of FLP’s obligations to the customer, however occurring, including any negligence on the part of FLP.
6.4 FLP recommends customers talk to their insurer about arranging suitable cover for risks of loss or liability arising from these terms of trade.
6.5 Where the work required by the customer involves more than one component, the total work required shall be regarded as one contract and the individual components shall not be severable.
7. Customer Default
7.1 If the customer defaults by not making any payment in accordance with clause 2.1 by the payment due date then without limiting any other right FLP shall be entitled to cancel any part of any contract or contracts with the customer which remain unperformed and all amounts outstanding under any contract with FLP shall whether or not due for payment immediately become due and payable.
8. Force Majeure
8.1 FLP is not liable for any failure in its obligations to a customer by reason of circumstances beyond FLP’s control including but without limitation:
- (a) strike, lockout or labour disturbance;
- (b) failure or delays by suppliers or sub-contractors;
- (c) fire earthquake, flood or similar natural disasters;
- (d) hostilities, commotions or similar civil strife.
9.1 Where any provision of these terms of trade is rendered void, unenforceable or otherwise ineffective by operation of law, that shall not affect the enforceability or effectiveness of any other provision herein.
10. Acknowledgement for Business Purposes
10.1 The customer acknowledges that it is acquiring the goods and/or services of FLP for the purpose of a business as defined in the Consumer Guarantees Act 1993.
11. Recovery of Costs
11.1 Any costs including the actual legal and Court costs incurred by FLP in obtaining payment, enforcing its Security Interest or enforcing any other rights will be recoverable from the customer.
12. Governing Law
12.1 All contracts between FLP and its customers and these terms are governed by the laws of New Zealand.