GREEN GABLES LIMITED – TERMS OF TRADE
1. DEFINITIONS 1.1. “GGL” means Green Gables Limited and any company which is directly or indirectly a subsidiary of Green Gables Limited and any duly authorised agent. 1.2. “Customer” means the person, authorised agent or legal entity described on the quote, invoice or order form. 1.3. Goods” has the same meaning as section 2 of the Sale of Goods Act 1908. 1.4. “Services” means all services supplied by GGL to the Customer and includes any recommendations or advice. 1.5. “Price” means the purchase price of the goods and services.
2. ACCEPTANCE 2.1. Any instructions received by GGL from the Customer for the supply of goods or services shall constitute acceptance of these terms and conditions. 2.2. No agent or representative of GGL is permitted to make any such agreements, representations, conditions or warranties not expressly confirmed by GGL in writing.
3. PRIVACY ACT 1993 3.1. The Customer permits GGL to collect, use, disclose and retain any information concerning the Customer, for the purpose of assessing the Customer’s credit worthiness, to enforce any rights under this contract, or the marketing of GGL goods and services.
4. PAYMENT TERMS 4.1. Once goods are ordered payment shall be made for goods according to these terms and conditions whether or not the goods have been delivered, and this contract cannot be cancelled except where allowed at law. 4.2. Payment for goods and services shall be made in full within 7 days following date of invoice. 4.3. Interest at the rate of 2.5% per month or part thereof may be charged on any amount owing after the due date.
5. INDEMNITY 5.1. Any disbursements, expenses and legal costs incurred by GGL due to the default of the Customer under these terms and conditions including default for payments shall be paid by the Customer including any debt collection fees, court costs or costs on a solicitor–client basis. 5.2. In consideration of GGL agreeing to provide services, the Customer fully indemnifies GGL against all costs resulting from the Customer’s breach of these terms.
6. PRICE 6.1. Prices unless otherwise stated, do not include goods and services tax, other taxes, levies or tariffs, freight or insurance charges which, if applicable, will be an extra charge to the Customer.
7. RISK AND DELIVERY 7.1. The goods remain at GGL’s risk until the delivery to the Customer, but when title passes to the Customer, goods are at the Customer’s risk whether delivery has been made or not. 7.2. Delivery of goods shall be deemed complete when GGL gives possession of the goods for delivery to the Customer, or possession of the goods is given to a general carrier, for delivery to the Customer. 7.3. If GGL delivers goods to the Customer by installments and GGL fails to deliver one or more installments, the Customer shall not have the right to cancel the contract. 7.4. GGL shall not be liable to the Customer for damage or loss due to failure by GGL to deliver the goods promptly or at all.
8. RETENTION OF TITLE 8.1. Title in the goods passes to the Customer when the Customer has made payment in full for all goods supplied by GGL. 8.2. The Customer gives necessary authority to GGL to enter any premises occupied by the Customer, at any reasonable time, to remove any goods not paid for in full by the Customer. GGL shall not be liable for damages, costs or expenses or any other losses suffered by the Customer as a result of this action.
9. LIMITATION OF LIABILITY 9.1. GGL shall not be liable for any loss of profits, or any consequential indirect loss, or damage of any kind arising directly or indirectly from any breach of GGL’s obligation under this contract or in tort. 9.2. Where GGL is liable to the Customer, the maximum cost of any liability shall not exceed the value of the goods or services provided by GGL to the Customer.
10. FORCE MAJEURE 10.1. GGL shall not be liable for failure or delay to perform its obligations if the delay or failure is beyond its control.
11. CONSUMER GUARANTEES ACT 1993 11.1. The guarantees contained in the Consumer Guarantees Act 1993 are excluded where the Customer acquires goods or services from GGL for the purposes of a business. 11.2. If the Customer on sells the goods to a third party, the Customer shall indemnify GGL for any losses incurred due to third party claims against GGL.
12. JURISDICTION 12.1. The contract shall in all respects be deemed to be a contract made in New Zealand and the validity, construction and performance of the contract shall be governed by New Zealand law.
13. CANCELLATION 13.1. GGL may cancel these terms and conditions or cancel delivery of goods and services at any time before the goods are delivered by giving written notice. GGL shall not be liable for any loss or damage arising from such cancellation. 13.2. The Customer may cancel delivery of goods at GGL’s sole discretion and will be liable for any costs incurred by GGL.
14. ASSIGNMENT 14.1. The Customer shall not assign all or any of its rights or obligations under this contract without the written consent of GGL.
15. PERSONAL PROPERTY SECURITIES ACT 1999 15.1. The Customer agrees that these provisions herein constitute a Security Interest in Personal Property (as those terms are defined in the Personal Property Securities Act 1999 (“PPSA”)) in respect of which GGL may register a financing statement on the Personal Property Securities Register. 15.2. The Customer hereby waives its rights contained in sections 116, 119, 120(2), 121, 125, 126, 127, 129, 131, and 132 of the PPSA.
16. WARRANTY 16.1. For goods not manufactured by GGL the warranty shall be the current warranty provided by the manufacturer of the goods. GGL shall be under no liability whatsoever except for the express conditions as detailed and stipulated in the manufacturer’s warranty. 16.2. Any fault in workmanship will lead to the Customer notifying GGL within 7 days. 16.3. In the case of secondhand goods, GGL provides no warranty to the Customer as to the quality or suitability for any purpose of such goods.
17. NON WAIVER 17.1. Failure by GGL to enforce any of the terms & conditions contained in this contract shall not be deemed to be a waiver of any of the rights GGL has in this contract and is not liable for any indirect loss or expense to the Customer.
18. PERSONAL GUARANTEE OF COMPANY DIRECTORS OR TRUSTEES 18.1. If the Customer is a company or trust, the director(s) or trustee(s) agree, in consideration for GGL agreeing to supply goods and credit to the Customer at their request, that in their personal capacity and jointly and severally personally undertake as principal debtors to GGL, the payment of any and all monies now or hereafter owed by the Customer to GGL and indemnify GGL against non-payment by the Customer. Any personal liability hereto shall not exclude the Customer in any way whatsoever from the liabilities and obligations contained in this contract. The individual and Customer shall be jointly and severally liable under the terms and conditions of this contract and for payment of all sums due hereunder.
19. INTELLECTUAL PROPERTY 19.1. GGL shall not be liable in respect of any claim which may be made against GGL for infringement of any letters, patent, registered design or copyright which may arise as a result of GGL supplying goods to the Customer in accordance with these terms and conditions, and the Customer agrees to indemnify and keep indemnified GGL from and against all or any such claims and against all loss, damage, costs and expenses incurred by or recovered against GGL in respect of any such claim. 19.2. Any drawings, specifications and technical data submitted or made available to the Customer by GGL shall remain the property of GGL.
20. CONSTRUCTION CONTRACTS ACT 2002 20.1. This clause constitutes agreement by GGL and the Customer on all of the mechanisms referred to in section 14 of the Construction Contracts Act 2002. 20.2. Unless otherwise agreed, where GGL serves a payment claim, the Customer will pay the amount it becomes liable to pay under this clause within 7days of the date of the payment claim.
21. DISPUTE RESOLUTION 21.1. In the event that a dispute arises between GGL and Customer the parties agree to meet in good faith within five working days of the dispute arising to try to resolve the dispute. 21.2. In the event that the dispute is not resolved within the five working days the parties agree to go to mediation. The mediator is to be either one chosen by both parties or where the parties cannot agree a mediator will be appointed by the President of the Auckland Branch of the New Zealand Law Society. 21.3. If the dispute is not resolved within a month of the initiation of mediation proceedings the dispute will be adjudicated in accordance with the process set out in the Construction Contracts Act 2002. Either party may commence the adjudication process. 21.4. Nothing in this term prevents GGL from utilising its rights in relation to payment disputes under the Construction Contracts Act 2002 at any time.
22. MISCELLANEOUS 22.1. If anything in this agreement is unenforceable, illegal or void it is severed and the rest of this agreement remains in force. 22.2. The Customer may not claim any counter claim or set-off against any payments due to GGL. 22.3. Under no circumstances shall the liability of GGL exceed the price of the goods in the event of a breach of this contract. 22.4. GGL may license or sub-contract all or any part of its rights and obligations without the Customer’s consent. 22.5. GGL reserves the right to review and change these terms and conditions at any time and will notify the Customer of this in writing at which time the changes will take effect.
23. HEALTH AND SAFETY 23.1 GGL takes safety seriously. We will ensure, so far as is reasonably practicable, that we provide and maintain a work environment without risk to health and safety; provide and maintain safe plant and structures; provide safe systems of work; and provide trained and competent workers to carry out work on behalf of GGL. 23.2 In order to meet our duties under the Health and Safety at Work Act and ensure your safety we require you as the client/homeowner to take all reasonable care for your own health and safety; take reasonable care that your acts or omissions do not adversely affect the health and safety of personnel in this workplace; comply with all reasonable instructions given by GGL to allow us to comply with the Health and Safety at Work Act and regulations; have disclosed all foreseeable hazard and risks on the site that may cause harm; and communicate these safety requirements to all persons in the vicinity that may be affected by the work we are carrying out. We cannot guarantee the safety of any unauthorised person on any site.