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Terms of Trade

CJ PHILLIPS CONSTRUCTION LIMITED – CONDITIONS OF TRADE

  1. DEFINITIONS
    • “Company” shall mean CJ Phillips Construction Limited its successors and assigns or any person acting on behalf of and with the authority of the CJ Phillips Construction Limited
    • “Conditions” means the terms and conditions of trade outlined herein.
    • “Client” shall mean the person, authorised agent or legal entity described in the application for trade account, stated on the invoice or order form/quote, and/or who buys goods and Works from CJ Phillips Construction Limited.
    • “Guarantor” means that person (or persons), or entity, who agrees to be liable for the debts of the Client on a principal debtor basis.
    • “Goods” shall mean Goods supplied by the Company to the Client (and where the context so permits shall include any supply of Works as hereinafter defined) and are as described on the invoices, quotation, work authorisation or any other forms as provided by the Company to the Client.
    • “Works” shall mean all Works undertaken by the Company to the Client and includes any advice or recommendations (and where the context so permits shall include any supply of Goods as defined above).
    • “Price” shall mean the cost of the Goods specified by the Company subject to clause 4 of this contract.
    • “Variation” means any change to the goods and/or Works to be undertaken by the Company, which is requested by either the Client or Company and which is mutually agreed by both parties in writing or electronically via email.

 

  1. GENERAL CONDITIONS
    • All sales of Goods and undertaking of Works by the Company to the Client are subject to these Conditions.
    • If any provision of these 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.
    • These Conditions and any contract to which they apply shall be governed by the laws of New Zealand and are subject to the exclusive jurisdiction of the courts of New Zealand.
    • The Company shall in no circumstances whatsoever be liable to the Client for any indirect loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by the Company of these Conditions.
    • The replacement or repair of any defect arising directly or indirectly from any defect in the Goods and Works provided shall not exceed the invoice value of the Goods and Works.
    • Under no circumstances shall the Company or its agents be liable for any incidental, special, indirect, consequential or punitive damages, including loss or profits, loss of revenues, loss of business, loss of operations, injury to reputation or loss of goodwill.
    • The Client shall not assign all or any of its rights or obligations under this contract without the written consent of the Company.
    • Neither party shall be liable for any default or loss due to any act of God, War Terrorism, Strike, Lock Out, Industrial Action, Fire, Flood Drought, Storm or any other event beyond the reasonable control of either party.
    • The Company may license or sub-contract all or any part of its rights and obligations without the Client’s consent.
    • The Company reserves the right to review these Conditions at any time. If, following any such review, there is to be any change to these Conditions, then that change will take effect from the date on which the Company notifies the Client of such change in writing.
    • No failure of the Company to insist upon strict performance of these Conditions, or delay in exercising any of its rights or remedies, shall constitute a waiver or variation of these Conditions or a waiver of any such right or remedy.

 

  1. ACCEPTANCE
    • Any verbal and/or written acceptance of quotes received by the Company from the Client for the supply of Goods and/or undertaking of Works shall constitute acceptance of these Conditions by the Client.
    • The Client’s receipt of the Goods and the commencement of Works shall also constitute acceptance of these Conditions.
    • Where there is more than one person or entity named as the Client, both or all persons or entities named shall be jointly and severally liable for all payments of the Price.
    • Upon acceptance of these Conditions by the Client the Conditions are irrevocable and can only be amended with the written consent of the Company.
    • The Company will not accept any changes or variations to the product or Works to be provided to the client unless mutually agreed upon and accepted in writing by the parties.
    • The Client acknowledges that the Company is not responsible for any delays that are beyond the Company’s control, including but not limited to any delay in receiving product from manufacturers and/or wholesalers, and/or any third party.

 

  1. PRICE AND PAYMENT TERMS
    • At the Company’s sole discretion, the Price shall be either:
      • as indicated on invoices provided by the Company to the Client in respect of Goods and/or Works; or
      • the Company’s quoted Price (subject to clause 4.2).
    • The Company reserves the right to revoke any quoted Price and provide a replacement Price in the event of a variation to the Goods or Works required by the Client, due to non-availability of any Goods selected by the Client or in the event any unforeseen cost must be expended by the Company for the benefit of the Client, including but not limited to Manufacturer price increases.
    • Payment of balance.
      • For Account Holders:
    • Payment for goods and/or Works is due on the 20th of the month following the date of the invoice, unless otherwise arranged in advance and confirmed in writing by the Company or otherwise stipulated on any Payment Claim raised by the Company.
      • For all other Clients:

(i)       Time for payment for the Goods and/or Works shall be of the essence and will be stated on the invoice or any other forms, including any Payment Claims raised under the Construction Contracts Act 2002; or

 

  1. VARIATION
    • In the event that the Client requests a variation all such requests shall be made in writing. If the Company believes the variation will not require a variation to any permit and will not cause any delay, and will not add more than (2%) to the Price then the Company may carry out the variation and the Client agrees to pay any variation to the Price, otherwise the Company will give the Client a written variation document detailing the Works, the amended Price, the estimated time to undertake the variation, and the likely delay, if any, and require written acceptance by the Client of the variation before commencing Work on the variation.
    • In the event that the Company requests a variation, the Company will, in writing:
      • state the reason for the variation; and
      • provide a full description of the variation; and
      • state any effect the variation will have on the contract, including but not limited to, the Price, completion date and whether further permits or authorisations are required.
    • Other than for the events outlined in clauses 5.4 the Company shall obtain written acceptance by the Client of any variation submitted by the Company before commencing Work on the variation.
    • Where the Works involve additions or alterations to an existing building or structure then:
      • the Company shall not be liable for any loss or damage suffered by the Client in relation to the Works where such loss or damage results from the state or the condition of the Client’s existing building or structure and the effect of such state and condition on the Works or the effect of the Works on the existing building or structure which could not reasonably have been foreseen by the Company during the course of the Works; and
      • where as a result of opening up any part of the existing building or structure to carry out the Works, any additional or altered work is required because of a non-standard construction or any substandard timber or other materials or because of any material which is required to be replaced or removed to carry out the Works, then the cost of any additional or altered work shall be borne by the Client and treated as a variation and the Contract Price adjusted accordingly.

 

  1. DEFAULT AND CONSEQUENCES OF DEFAULT
    • Interest on overdue invoices and accounts shall accrue daily from the date payment became due until the date payment is made at a rate of 2.5% per month on the overdue amount.
    • In addition to the provisions of clause 6.1, If the Client defaults in payment of any invoice or account when due, the Company reserves the right to:
      • Suspend or terminate the supply of Goods and/or Works to the Client and any of its other obligations under these Conditions;
      • Use personal information as that term is used in the Privacy Act 1993 but only to the extent necessary to take action to recover payment of the invoice or account; and
      • Charge the Client for all costs and fees by a collection agency and/or lawyer’s fees which are incurred in taking action to recover outstanding costs; and
      • Charge an administration fee of $150.00 plus GST for time and effort is involved in collection from the Client.

 

  1. COMPLIANCE AND CONSENTS
    • The Client shall obtain and pay for any building consent and resource consent and other necessary approvals required for the Works, including consents and approvals required after the commencement of the Works.
    • The Company shall comply with the terms and conditions of the building and resource consents as far as the consents and approvals relate to the carrying out of the Works.
    • Subject to section 364 of the Building Act 2004, the Client shall be responsible for applying and obtaining the Code Compliance Certificate(s) for the Works.
    • The Company shall provide the Client with all necessary information relating to the Works so that the Owner may apply for a Code Compliance Certificate.

 

  1. DELIVERY OF GOODS AND WORKS
    • Delivery of the Goods shall take place when the Client takes possession of the Goods.
    • Delivery of the Works take place when milestones or events nominated in any Side Agreement or other document relating to the project are reached.

 

  1. RETENTION OF TITLE
    • It is expressly agreed and declared that title to the Goods shall not pass to the Client until the Company receives payment in full of the amounts owing for the Goods and Works. The Client in the meantime, shall take custody of the Goods and retain them as a fiduciary agent and bailee of the Company.
    • All risk for the goods passes to the Client upon delivery.
    • Full Payment is not deemed to have been made until the payment has cleared in the Company’s bank account.
    • It is further agreed that:
      • until such time as the ownership of the Goods is passed to the Client, the Company may give notice in writing to the Client to return the Goods; and
      • if the Client fails to return the Goods to the Company, then the Company or the Company’s agent may enter upon and into the land and premises owned, occupied or used by the Client, where the Goods are situated and take possession of the Goods; and
      • if the Goods have been mixed or sold, the Company will have the right to the proceeds of the sale of the Goods; and/or liquidated damages assessed at the total value of the Goods and/or Works.

 

  1. PERSONAL PROPERTY SECURITIES ACT 1999 (PPSA)
    • Upon acceptance of these Conditions the Client acknowledges and agrees that
      • these Conditions constitute a security agreement for the purposes of the PPSA; and
      • a security interest is taken in all goods previously supplied by the Company to the Client (if any) and all goods that will be supplied in the future by the Company to the Client.
    • The Client undertakes to:
      • 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 on the Personal Property Security Register; and
      • 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.
    • The Client irrevocably appoints the Company as the Client’s attorney at fact to execute any such financing statements.
    • The Client waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA.
    • The Company and the Client agree that nothing in Sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms and conditions.
    • Unless otherwise agreed to in writing by the Company, the Client waives its right to receive a verification statement in accordance with Section 148 of the PPSA.
    • The Client shall unconditionally ratify any actions taken by the Company under clauses 8.1 to 8.6.

 

  1. SECURITY AND CHARGE
    • Despite anything to the contrary contained herein or any other rights which the Company may have howsoever:
      • Where the Client and/or the Guarantor (if any) is the owner of the land, realty or any other asset capable to being charged, both the Client 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 Company or the Company’s nominee to secure all amounts and other monetary obligations payable under the terms and conditions. The Client and/or the Guarantor acknowledge and agree that the Company (or the Company’s nominee) shall be entitled to lodge where appropriate a caveat, which caveat shall be released once all payments and other monetary obligations payable hereunder have been met.
      • Should the Company elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Client and/or Guarantor shall indemnify the Company from and against all claims as well as the Company’s costs/disbursements including legal costs on a solicitor and own client basis.
      • The Client and/or the Guarantor (if any) agree to irrevocably nominate constitute and appoint the Company or the Company’s nominee as the Client’s and/or Guarantor’s true and lawful attorney to perform all necessary acts to give effect to the provisions of this clause 9.1.

 

  1. CLIENT’S DISCLAIMER
    • The Client hereby disclaims any right to rescind, or cancel the contract or to sue for damages or to claim restitution arising out of any misrepresentation made to the Client by the Company and the Client acknowledges that the Goods are bought and the Works are agreed to, relying solely upon the Client’s skill and judgement.

 

  1. DEFECTS AND WARRANTIES
    • If the Client notifies the Company of any concerns regarding the Goods and/or Works in writing within 30 days of the date of completion of the Works, the Company will (at the Company’s sole discretion) either repair the defect, replace the goods, or remedy the workmanship.
    • The Company shall not be liable under this clause to remedy
      • defects covered by a manufacturer’s or supplier’s guarantee that is available to and may be enforced by the Client;
      • defects in or damage caused by work undertaken by the Client or any of the Client’s contractors.
    • In the case of second-hand goods, the Company provides no warranty to the Client as to the quality or suitability for any purpose of such goods
    • This is an express warranty. The Company disclaims any other express or implied warranties to the maximum extent permitted by law.

 

  1. PRIVACY ACT
    • The Client and Guarantor (if separate to the Client) authorises the Company to:
      • collect, retain and use any information about the Client, for the purpose of assessing the Client’s credit worthiness, to enforce rights under the Conditions, and for marketing of products and Works to the Client; and
      • to disclose information about the Client, whether collected by the Company from the Client directly or obtained by the Client from any other source, to any credit provider or any credit reporting agency for the purposes of providing a credit check, debt collection or notifying default by the Client.
    • Where the Client is an individual the authorities under (clause 13.1) are authorities or consents for the purposes of the Privacy Act 1993.
    • The Client shall have the right to request the Company for a copy of the information about the Client retained by the Company and the right to request the Company to correct any incorrect information about the Client held by the Company.

 

  1. CANCELLATION
    • The Company may cancel these terms and conditions or cancel delivery of the Goods and Works at any time before the Goods are delivered or Works are completed by giving written notice to the Client. On giving such notice the Company shall repay to the Client any sums paid in respect of the Price.  The Company shall not be liable for any loss or damage whatsoever arising from such cancellation.
    • In the event that the Client cancels delivery of the Goods and/or Works the Client shall be liable for any loss or costs incurred by the Company (including, but not limited to, any loss of profits) up to the time of cancellation. The client will not be entitled to receive any refund of the deposit price paid to the Company, unless agreed to by the Company in writing.

 

 

 

16.0   SUPPORTING PERSONAL GUARANTEE

16.1. If the Client is a Company, Partnership, Trust or other entity, then unless otherwise expressly agreed to in writing by the Company, the Client must provide to the Company a personal guarantee, guaranteeing the obligations of the Client, in the form attached to the Conditions as soon as possible.

16.2   The Client and Guarantor acknowledge and agree that in the event any guarantee of monies or other obligations that are owing by the Client to the Company prior to the date the personal guarantee is signed, the Client and Guarantor accept that the guarantee will remain in full force and effect.

 

17.0   CONSUMER GUARANTEES ACT

17.1   The guarantees contained in the Consumer Guarantees Act 1993 are excluded where the Client acquires goods or Works from the Company for the purposes of a business.

17.2   If the Client on sells the goods to a third party, the Client shall indemnify the Company for any losses incurred due to third party claims against the Company.

 

18.0   CONSTRUCTION CONTRACTS ACT 2002

18.1   The parties acknowledge that all provisions in the Construction Contracts Act 2002 shall apply to this contract.

 

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