Terms Of Trade - Ingric Trades Limited
The following terms and conditions are applicable to the provision of building and construction services and building materials (“the Building Work”) by Ingric Trades Auckland Limited (hereinafter referred to as “Ingric Trades Auckland”). No other terms, conditions or deviations from these terms and conditions shall be binding unless accepted in writing by an authorised representative of Ingric Trades Auckland. In the event of a conflict between these terms and conditions and any accompanying documentation, the provisions of the accompanying documentation shall prevail.
1. Plans and Specifications
Copyright and ownership in all drawings, specifications and other technical information provided by Ingric Trades Auckland in connection with the contract is vested in Ingric Trades Auckland. Where Ingric Trades Auckland has followed plans and specifications provided by the Customer or their agent, the Customer shall indemnify Ingric Trades Auckland against all damages, penalties, costs and expenses in respect of which Ingric Trades Auckland may become liable through the utilisation of those plans and specifications.
2. Quotation and Acceptance
Ingric Trades Auckland shall produce a formal quotation for the Customer for the Building Work. The quotation shall be subject to the clarifications and exclusions set out in the documentation accompanying these terms and conditions and shall be valid for a period of thirty (30) days from the date specified on the quotation.
The Customer shall accept the quotation and any plans and specifications attached with the quotation (if provided) by entering their name, quotation number and clicking the ‘I accept this quotation’ button on the email which accompanies the quotation. The acceptance of the quotation in the manner specified in this clause shall constitute a binding contract and acceptance of the terms and conditions contained herein
3. Variations
Except as expressly provided in these terms and conditions, all variations or alterations to the scope of the Building Work shall be binding on the parties, including any adjustment to the contract price. Any changes required as a result of any ambiguous drawings or any other documentation provided by the Customer or their agent will be treated as a variation to the Building Work.
4. Cancellation
In the event that the Customer wishes to cancel the contract for the Building Work at any time after acceptance of the quotation, the Customer shall pay all actual and reasonable costs and expenses incurred by Ingric Trades Auckland together with a reasonable administration fee, provided that the Customer shall not be entitled to cancel the contract once the Building Work has commenced without the prior consent in writing of Ingric Trades Auckland.
Ingric Trades Auckland shall, without any liability, and without any prejudice to any other right it has in law or equity, have the right by notice to suspend or cancel in whole or in part any contract for the supply of Building Work to the Customer if the Customer fails to pay any money owing after the due date, or if the Customer commits an act of bankruptcy as defined in section 19 of the Insolvency Act 1967, or if liquidation proceedings are commenced in relation to the Customer, or if the Customer shall otherwise become bankrupt or insolvent, or if any other event occurs which evidences a lack of credit worthiness or insolvency on the part of the Customer.
Any cancellation or suspension by Ingric Trades Auckland pursuant to this clause shall not affect Ingric Trades Auckland’s claim for money due at the time of cancellation or suspension or for damages for any breach of any terms of this contract or the Customer’s obligations to Ingric Trades Auckland under these terms and conditions.
5. Price
The price of the Building Work shall be the price stated in the quotation together with all extras selected by the Customer and subject to variation in accordance with clause 3. The price quoted for the Building Work excludes GST. GST shall be payable by the Customer in addition to the price quoted.
Where no price is stated in writing or agreed, the Building Work shall be deemed to be supplied at the current price applying at the date upon which the invoice for the Building Work is issued to the Customer.
Notwithstanding anything contained in this clause or the quotation, the price of the Building Work may be increased by the amount of any reasonable increase in cost of supply of the Building Work between the date upon which the quotation is delivered to the Customer and the date upon which the Building Work is supplied and where such increase is beyond the reasonable control of Ingric Trades Auckland.
6. Payment
Payment for the Building Work shall be made in full within seven (7) days of the date of the invoice unless otherwise agreed in writing by the parties.
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 claim within the meaning of the Construction Contracts Act 2002. The Customer is hereby put on notice of the requirements of the Construction Contracts Act 2002 in terms of the issuing of payment schedules.
Ingric Trades Auckland reserves the right to charge interest on all overdue accounts at the daily rate of 1.75 times Ingric Trades Auckland’ bank total overdraft interest rate from the due date for payment until the date when payment is actually made and all expenses and costs (including legal costs as between solicitor and client and debt collection fees) incurred by Ingric Trades Auckland in obtaining or attempting to obtain a remedy for the failure to pay.
The Customer may not deduct or withhold any amount (whether by way of a set-off, counterclaim or otherwise) from any money owing to Ingric Trades Auckland.
Receipt of a cheque, bill of exchange, or other negotiable instrument shall not constitute payment until such negotiable instrument is paid in full.
The Customer expressly acknowledges that no retentions shall apply unless Ingric Trades Auckland has agreed to such retentions in writing.
Failure by Ingric Trades Auckland to enforce any of the terms and conditions contained in this contract shall not be deemed to be a waiver of any of the rights or obligations Ingric Trades Auckland has under this contract.
7. Commencement and Completion
The Customer acknowledges that any estimates as to the time frames for the commencement and completion of the Building Work are approximate only. Ingric Trades Auckland will use its reasonable endeavours to ensure the Building Work is commenced and completed within the time frame specified but shall not be liable for any delay or failure to do so. Ingric Trades Auckland shall not be responsible for any delays caused by separate or nominated subcontractors. Except to the extent that a delay is caused by Ingric Trades Auckland, the Customer agrees that all costs incurred by Ingric Trades Auckland resulting from delays will be charged as a variation to the contract price.
8. Repair of Defects
Ingric Trades Auckland shall at its sole cost rectify any defects in the materials or workmanship which are notified to Ingric Trades Auckland within ninety (90) days of completion of the Building Work and within a reasonable time of receiving written notification of those defects. Ingric Trades Auckland 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 Customer; or
- defects in or damage caused by work undertaken by the Customer or the any of the Customer’s contractors.
9. Risk and Insurance
Any goods supplied by Ingric Trades Auckland shall be at the sole risk of Ingric Trades Auckland until the earlier of payment for the goods and delivery of the goods to the Customer.
If the Building Work involves an extension or alteration to existing premises, the Customer shall be solely responsible for arranging an extension of the Customer’s insurance policy to provide insurance cover for all associated risks.
10. Ownership
Ownership of any goods and/or materials supplied as part of the Building Work shall not pass to the Customer until all amounts owing by the Customer to Ingric Trades Auckland in respect of the goods and/or materials have been paid in full.
The Customer acknowledges and agrees that by assenting to these terms and conditions, the Customer grants a Purchase Money Security Interest to Ingric Trades Auckland, as that term is defined in the Personal Property Securities Act 1999 (“PPSA”), in all goods and/or materials supplied by Ingric Trades Auckland to the Customer.
The Customer irrevocably undertakes to sign any further documents and/or provide any further information (which information the Customer warrants to be complete, accurate and up-to-date in all respects) which Ingric Trades Auckland may reasonably require to enable registration of a financing statement or financing change statement on the Personal Property Securities Register. The Customer shall not agree to allow any person to register a financing statement over any of the goods supplied by Ingric Trades Auckland without the prior written consent of Ingric Trades Auckland and will immediately notify Ingric Trades Auckland in writing if the Customer becomes aware of any person taking steps to register a financing statement in relation to such goods. The Customer waives its rights to receive a copy of any verification statement or financing change statement.
If the goods are for the Customer’s business use, the Customer agrees, to the extent Part 9 of the PPSA applies, that it will have no rights under Part 9 of the PPSA.
The Customer irrevocably grants to Ingric Trades Auckland the right to enter upon the Customer’s property or premises, without notice, and without being in any way liable to the Customer or to any third party, if Ingric Trades Auckland has cause to exercise any of Ingric Trades Auckland’ rights under section 109 of the PPSA, and the Customer shall indemnify Ingric Trades Auckland from any claims made by any third party as a result of such exercise.
Ingric Trades Auckland and the Customer agree that nothing in sections 114(1)(a), 116, 117(1)(c), 119, 120(2), 121, 125, 126, 127, 129, 131, and 132 of the PPSA will apply to these terms and conditions, or the security interest created under these terms and conditions.
The Customer will be responsible to Ingric Trades Auckland for any costs or damages incurred in reclaiming and disposing of the unpaid goods and/or materials. Such costs include but are not limited to loss in value, cost or 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 Ingric Trades Auckland by the Customer.
11. Warranty and Liability
The warranties, descriptions, representations, or conditions whether implied by law, trade, custom or otherwise are, and all other liability of Ingric Trades Auckland, whether in tort (including negligence), contract or otherwise is, expressly excluded to the fullest extent permitted by law.
Insofar as Ingric Trades Auckland may be liable, notwithstanding anything contained in these terms and conditions, to the extent permitted by law the total liability of Ingric Trades Auckland whether in tort (including negligence), contract or otherwise for any loss, damage or injury arising directly or indirectly out of completion of the Building Work or any other breach of Ingric Trades Auckland’s obligations is limited to the lesser of:
(a) the price of goods and/or materials complained of; and
(b) the cost of completing any necessary repairs/remedial work.
Except where statute expressly requires otherwise Ingric Trades Auckland is not liable in any event for any loss of profits, consequential, indirect or special damage, loss or injury of any kind suffered by the Customer or any other person.
12. Collection and Use of Information
The Customer authorises Ingric Trades Auckland to collect, retain and use any information about the Customer for the purpose of assessing the Customer’s creditworthiness and/or enforcing any rights under this contract.
The Customer authorises Ingric Trades Auckland to disclose any information obtained to any person for the purposes set out in this clause. Where the Customer is a natural person, the authorities under this clause are authorities or consents for the purposes of the Privacy Act 1993.
13. Miscellaneous
Ingric Trades Auckland shall not be liable for delay or failure to perform its obligations if the cause of the delay or failure is beyond its control.
If any provision of this contract shall be invalid, void or illegal or unenforceable, the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or implied.
The Customer may not assign any of its rights or obligations under this contract without the prior written consent of Ingric Trades Auckland.
14. Personal Guarantee
In consideration for Ingric Trades Auckland agreeing to complete the Building Work at the request of the Customer, where the Customer is a company or trust, the directors or trustees signing this contract also sign this contract in their personal capacity and jointly and severally personally undertake as principal debtors to Ingric Trades Auckland the payment of any and all moneys owed by the Customer to Ingric Trades Auckland and indemnify Ingric Trades Auckland against non-payment by the Customer.
15. Governing Law
Governing Law These terms and conditions shall be governed by and construed in accordance with the laws of New Zealand and the parties shall submit to the exclusive jurisdiction of the New Zealand courts.
16. Agency
The Customer authorises Ingric Trades Auckland to contract either as principal or agent for the provision of goods or services.
Where Ingric Trades Auckland enters into a contract of the type referred to this clause the Customer agrees to pay any amounts due under that contract.
Any list of proposed subcontractors supplied by Ingric Trades Auckland is provided on a without prejudice basis and Ingric Trades Auckland reserves the exclusive right to change subcontractors without adjustment to the quotation.
17. Dispute Resolution
In the event of a dispute or disagreement arising between Ingric Trades Auckland and the Customer, the party with a grievance may give written notice to the other party specifying the nature of the dispute or disagreement, the remedy sought and requiring that the dispute or disagreement be determined and settled in accordance with this clause.
On receipt of the notice, the parties shall each appoint a representative who has authority to determine the grievance or dispute, and those two representatives shall meet as soon as reasonably possible to see if they can determine the grievance. All discussions, meetings and correspondence between the two representatives shall be deemed without prejudice and without concession of liability and shall not be used by either party in any later proceedings unless both parties agree.
If the two representatives cannot, within fourteen (14) days of being appointed, reach agreement on how the grievance or dispute is to be determined, the parties shall refer the dispute to an independent expert who is acceptable to both parties. If the parties cannot or do not agree on an independent expert within three (3) days of the first suggestion of a suitable person, either party may ask the President of the New Zealand Registered Master Builders Federation to nominate a person to act as an independent expert and the first person so nominated who is able and willing to be appointed shall be deemed the independent expert for the purposes of this clause. The independent expert shall;
(a) set his or her own rules and procedure for the resolution of the grievance or disagreement
(b) at all times act in good faith and in an unbiased way
(c) promptly hear and determine the dispute
(d) provide a written decision (with reasons for that decision) if requested by either party.
The independent expert’s:
(a) decision shall be binding on both parties;
(b) costs shall be paid equally by the parties unless the independent expert decides otherwise in his or her decision.
Notwithstanding anything contained in clause 17, disputes in excess of ten thousand dollars ($10,000.00) shall be referred at Ingric Trades Auckland’s sole discretion to adjudication by the Building Disputes Tribunal.