1.         Definitions

1.1       “SGA” shall mean Secure Glass & Alifletch its successors and assigns or any person acting on behalf of and with the authority of Secure Glass & Alifletch.

1.2   “Customer” shall mean the Customer (or any person acting on behalf of and with the authority of the Customer) as described on any quotation, work authorisation or other form as provided by SGA to the Customer.

1.3       “Guarantor” shall mean that person (or persons), or entity, who agrees to be liable for the debts of the Customer on a principal debtor basis.

1.4       “Goods” shall mean Goods supplied by SGA to the Customer (and where the context so permits shall include any supply of Services as hereinafter defined) and includes Goods described on any invoices, quotation, work authorisation or any other forms as provided by SGA to the Customer.

1.5       “Services” shall mean all services supplied by SGA to the Customer and includes any advice or recommendations (and where the context so permits shall include any supply of Goods as defined above).

1.6       “Price” shall mean the price payable for the Goods as agreed between SGA and the Customer in accordance with clause 3 of this contract.

 

2.         Acceptance

2.1       Any instructions received by SGA from the Customer for the supply of Goods and/or the Customer’s acceptance of Goods supplied by SGA shall constitute acceptance of the terms and conditions contained herein.

2.2       Where more than one Customer has entered into this agreement, the Customers shall be jointly and severally liable for all payments of the Price.

2.3       Upon acceptance of these terms and conditions by the Customer the terms and conditions are binding and can only be amended with the written consent of SGA.

2.4       The Customer shall give SGA not less than fourteen (14) days prior written notice of any proposed change of ownership of the Customer or any change in the Customer’s name and/or any other change in the Customer’s details (including but not limited to, changes in the Customer’s address, facsimile number, or business practice). The Customer shall be liable for any loss incurred by SGA as a result of the Customer’s failure to comply with this clause.

 

3.         Price And Payment

3.1       At SGA’s sole discretion the Price shall be either:

(a)  as indicated on invoices provided by SGA to the Customer in respect of Goods supplied; or

(b) SGA’s quoted Price (subject to clause 3.2) which shall be binding upon SGA provided that the Customer shall accept SGA’s quotation in writing within thirty (30) days.

3.2       SGA reserves the right to change the Price in the event of a variation to SGA’s quotation.

3.3       At SGA’s sole discretion a deposit may be required.

3.4       SGA may submit a detailed payment claim at intervals not less than one month for work performed up to the end of each month. The value of work so performed shall include the reasonable value of authorised variations, whether or not the value of such variations has been finally agreed between the parties, and the value of materials delivered to the site but not installed. Progress payment shall be made within twenty (20) working days of each monthly payment claim.

3.5       At SGA’s sole discretion payment shall be due on installation of the Goods.

3.6       Time for payment for the Goods 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 in which a statement is posted to the Customer’s address or address for notices.

3.7       Payment will be made by cash, or by cheque, or by bank cheque, or by direct credit (for approved Customer’s only), or by any other method as agreed to between the Customer and SGA.

3.8       GST and other taxes and duties that may be applicable shall be added to the Price except when they are expressly included in the Price.

 

4.         Delivery Of Goods

4.1       At SGA’s sole discretion delivery of the Goods shall take place when:

(a)  the Customer takes possession of the Goods at SGA’s address; or

(b) the Customer takes possession of the Goods at the Customer’s nominated address (in the event that the Goods are delivered by SGA or SGA’s nominated carrier).

4.2       At SGA’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 SGA 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       SGA may deliver the Goods by separate instalments. Each separate instalment shall be invoiced and paid for in accordance with the provisions in these terms and conditions.

4.6       The failure of SGA to deliver shall not entitle either party to treat this contract as repudiated.

4.7       SGA shall not be liable for any loss or damage whatever due to failure by SGA to deliver the Goods (or any of them) promptly or at all, where due to circumstances beyond the control of SGA.

5.         Risk

5.1       If SGA retains ownership of the Goods nonetheless, all risk for the Goods passes to the Customer on delivery.

5.2       If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Customer, SGA is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by SGA is sufficient evidence of SGA’s rights to receive the insurance proceeds without the need for any person dealing with SGA to make further enquiries.

5.3       In the event any insurance claim is declined or delayed, the Client shall be liable for payment of SGA’s invoice for the Goods.

 

6.         Title

6.1       SGA and Customer agree that ownership of the Goods shall not pass until:

(a)  the Customer has paid SGA all amounts owing for the particular Goods; and

(b) the Customer has met all other obligations due by the Customer to SGA in respect of all contracts between SGA and the Customer.

6.2       Receipt by SGA 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 SGA’s ownership or rights in respect of the Goods shall continue.

6.3       It is further agreed that:

(a)  where practicable the Goods shall be kept separate and identifiable until SGA shall have received payment and all other obligations of the Customer are met; and

(b) until such time as ownership of the Goods shall pass from SGA to the Customer SGA may give notice in writing to the Customer to return the Goods or any of them to SGA.  Upon such notice being given the rights of the Customer to obtain ownership or any other interest in the Goods shall cease; and

(c)  the Customer is only a bailee of the Goods and until such time as SGA has received payment in full for the Goods then the Customer shall hold any proceeds from the sale or disposal of the Goods on trust for SGA; and

(d) until such time that ownership in the Goods passes to the Customer, if the Goods are converted into other products, the parties agree that SGA will be the owner of the end products; and

(e)  if the Customer fails to return the Goods to SGA then SGA or SGA’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 SGA will not be liable for any reasonable loss or damage suffered as a result of any action by SGA under this clause.

 

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

7.1       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 SGA to the Customer (if any) and all Goods that will be supplied in the future by SGA to the Customer.

7.2       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 SGA may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register;

(b) indemnify, and upon demand reimburse, SGA 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 SGA; and

(d) immediately advise SGA 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.

7.3       SGA and the Customer agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms and conditions.

7.4       The Customer waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA.

7.5       Unless otherwise agreed to in writing by SGA, the Customer waives its right to receive a verification statement in accordance with section 148 of the PPSA.

7.6       The Customer shall unconditionally ratify any actions taken by SGA under clauses 7.1 to 7.5.

 

8.         Customer’s Disclaimer

8.1       The Customer hereby disclaims any right to rescind, or cancel any contract with SGA or to sue for damages or to claim restitution arising out of any inadvertent misrepresentation made to the Customer by SGA and the Customer acknowledges that the Goods are bought relying solely upon the Customer’s skill and judgment.

 

9.         Defects

9.1       The Customer shall inspect the Goods on delivery and shall within three (3) days of delivery (time being of the essence) notify SGA of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote.  The Customer shall afford SGA an opportunity to inspect the Goods within a reasonable time following delivery if the Customer believes the Goods are defective in any way.  If the Customer shall fail to comply with these provisions the Goods shall be presumed to be free from any defect or damage. For defective Goods, which SGA has agreed in writing that the Customer is entitled to reject, SGA’s liability is limited to either (at SGA’s discretion) replacing the Goods or repairing the Goods.

9.2       The Customer acknowledges that Goods are under no circumstances acceptable for credit or return.

 

10.       Warranty

10.1     For Goods not manufactured by SGA, the warranty shall be the current warranty provided by the manufacturer of the Goods. SGA 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.

 

11.       Consumer Guarantees Act 1993

11.1     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 SGA to the Customer.

 

12.       Default & Consequences Of Default

12.1     Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and one half percent (2.5%) per calendar month (and at SGA’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.

12.2     In the event that the Customer’s payment is dishonoured for any reason the Customer shall be liable for any dishonour fees incurred by SGA.

12.3     If the Customer defaults in payment of any invoice when due, the Customer shall indemnify SGA from and against all costs and disbursements incurred by SGA in pursuing the debt including legal costs on a solicitor and own client basis and SGA’s collection agency costs.

12.4     Without prejudice to any other remedies SGA may have, if at any time the Customer is in breach of any obligation (including those relating to payment), SGA may suspend or terminate the supply of Goods to the Customer and any of its other obligations under the terms and conditions.  SGA will not be liable to the Customer for any loss or damage the Customer suffers because SGA has exercised its rights under this clause.

12.5     If any account remains overdue after thirty (30) days then an amount of the greater of $40.00 or 10.00% of the amount overdue (up to a maximum of $200) shall be levied for administration fees which sum shall become immediately due and payable.

12.6     Without prejudice to SGA’s other remedies at law SGA shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to SGA shall, whether or not due for payment, become immediately payable in the event that:

(a)  any money payable to SGA becomes overdue, or in SGA’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.

 

13.       Security And Charge

13.1     Despite anything to the contrary contained herein or any other rights which SGA 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 SGA or SGA’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 SGA (or SGA’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 SGA elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Customer and/or Guarantor shall indemnify SGA from and against all SGA’s costs and disbursements including legal costs on a solicitor and own client basis.

(c)  the Customer and/or the Guarantor (if any) agree to irrevocably nominate constitute and appoint SGA or SGA’s nominee as the Customer’s and/or Guarantor’s true and lawful attorney to perform all necessary acts to give effect to the provisions of this clause 13.1.

 

14.       Cancellation

14.1     SGA may cancel any contract to which these terms and conditions apply or cancel delivery of Goods at any time before the Goods are delivered by giving written notice to the Customer. On giving such notice SGA shall repay to the Customer any sums paid in respect of the Price. SGA shall not be liable for any loss or damage whatever arising from such cancellation.

14.2     Cancellation by the Customer must be given to SGA no less than twenty-four (24) hours prior to the scheduled appointment. In the event cancellation notification is given within the twenty-four (24) hours, SGA shall be entitled (at their sole discretion) to charge the Customer a cancellation fee equal to the cost one (1) hour’s labour, as per SGA current labour rate.  The Customer acknowledges that they shall be liable for any costs incurred by SGA up to the time of cancellation (including, but not limited to, the cost of materials purchased to complete the Goods) and cancellation of orders for special or non-catalogue items will definitely not be accepted, once these orders are in production.

 

15.       Privacy Act 1993

15.1     The Customer and the Guarantor/s (if separate to the Customer) authorises SGA 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 SGA from the Customer directly or obtained by SGA 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.

15.2     Where the Customer and/or Guarantors are an individual the authorities under clause 15.1 are authorities or consents for the purposes of the Privacy Act 1993.

15.3     The Customer and/or Guarantors shall have the right to request SGA for a copy of the information about the Customer and/or Guarantors retained by SGA and the right to request SGA to correct any incorrect information about the Customer and/or Guarantors held by SGA.

 

16.       Unpaid Seller’s Rights

16.1     Where the Customer has left any item with SGA for repair, modification, exchange or for SGA to perform any other Service in relation to the item and SGA has not received or been tendered the whole of the Price, or the payment has been dishonoured, SGA shall have:

(a)  a lien on the item;

(b) the right to retain the item for the Price while SGA is in possession of the item;

(c)  a right to sell the item.

16.2     The lien of SGA shall continue despite the commencement of proceedings, or judgement for the Price having been obtained.

 

17.       Construction Contracts Act 2002

17.1     The Customer hereby expressly acknowledges that:

(a)  SGA 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 the Customer, and:

(i)   the payment is not paid in full by the due date for payment and no payment schedule has been given by the Customer; or

(ii)  a scheduled amount stated in a payment schedule issued by the Customer in relation to the payment claim is not paid in full by the due date for its payment; or

(iii) the Customer has not complied with an adjudicator’s notice that the Customer must pay an amount to SGA by a particular date; and

(iv) SGA has given written notice to the Customer of its intention to suspend the carrying out of construction work under the construction contract.

(b) if SGA 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 the Customer or by any person claiming through the Customer; 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 SGA exercises the right to suspend work, the exercise of that right does not:

(i)   affect any rights that would otherwise have been available to SGA under the Contractual Remedies Act 1979; or

(ii)  enable the Customer to exercise any rights that may otherwise have been available to the Customer under that Act as a direct consequence of SGA suspending work under this provision.

 

18.       General

18.1     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.

18.2     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.

18.3     SGA shall be under no liability whatever to the Customer for any indirect loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by SGA of these terms and conditions.

18.4     In the event of any breach of this contract by SGA the remedies of the Customer shall be limited to damages which under no circumstances shall exceed the Price of the Goods.

18.5     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 SGA.

18.6     SGA may license or sub-contract all or any part of its rights and obligations without the Customer’s consent.

18.7     SGA reserves the right to review these terms and conditions at any 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 SGA notifies the Customer of such change.

18.8     The provisions of the Contractual Remedies Act 1979 shall apply to this contract as if section 15(d) were omitted from the Contractual Remedies Act 1979.

18.9     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.

18.10  The failure by SGA to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect SGA’s right to subsequently enforce that provision.

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