1.1 "The Company" means ITC Limited.
1.2 "Customer" means any purchaser of a Job from the Company.
1.3 "Job" means any products, goods, and services supplied by the Company, or in contract work completed by the Company.
1.4 "GST" means goods and services tax, as provided in the Goods and Services Tax Act 1985, or any similar or replacement tax, duty or impost.
1.5 "Terms of Trade" means the terms set out in this document, as amended or replaced by the Company from time to time. Any goods or Services supplied or completed by the Company are supplied on the Terms of Trade. The Terms of Trade will bind any purchases made by a Customer.
1.6 The Terms of Trade, as read with any quotation provided by the Company and accepted by the Customer and any order accepted in writing by the Company (together referred to as an Order) contain the whole of the terms between the parties. If there is a conflict between the Terms of Trade and anything contained in a quotation provided by the Company, the quotation applies. If there is a conflict between the Terms of Trade and anything contained in an Order, the Terms of Trade apply.
1.7 No failure of the Company to exercise a right under the Terms of Trade shall be regarded as a waiver of that right.
1.8 If any provision of these terms of trade is held to be invalid or unenforceable for any reason, the remaining provisions shall remain in full force and effect and the parties shall adjust their respective rights and obligations in accordance with the spirit and intent of the parties as shown by the terms of trade.
1.9 The Customers rights and obligations conferred by these Terms of Trade are non-assignable.
1.10 These Terms of Trade are subject to change from time to time by written notice, including email.
2.1 The Company provides all quotes in writing.
2.2 All quotes will lapse if not accepted after 30 days, unless the Company agrees to reinstate a lapsed quote at the Customer's request. The Company is under no obligation to reinstate a lapsed quote.
2.3 All quotes are exclusive of GST.
2.4 All quotes are based on the conditions and specifications in the quotation and provide for all work and materials required to complete the Order. Any variation or alteration to the conditions and specifications or increase in material and/or labour costs may increase the quoted price. In the event the quoted price is increased, the Company will notify the Customer in writing. The Customer will have 5 working days in which to give notice of termination of the Job or dispute of the increased quoted price after which time if no such notice is received the Customer is deemed to have accepted the revised quote. In the event of termination the Customer shall be liable for all costs incurred by the Company up to and including the date of termination.
2.5 The Company will take reasonable care of the Customer's property but the risk shall be on the Customer and the Company shall not be responsible for any damage or loss. Unless it is otherwise agreed in writing, the Company may dispose of any materials held one month following the date of invoice.
2.6 Notwithstanding any other clause in the Terms of Trade or an Order, where a contract is suspended or cancelled by the Customer, all work carried out and Jobs supplied by the Company will be paid for by the Customer forthwith on presentation of the invoice by the Company. If the Job is suspended, the Customer will pay any additional costs or for any losses of the Company by the suspension.
3 ACCEPTANCE AND COMPLETION
3.1 A contract will be made only on the verbal or written acceptance by the Customer of any quote provided by the Company or acceptance by the Company of a written order provided by the Customer for the supply of the Job.
3.2 The Company must make reasonable commercial efforts to meet any required delivery date, but is not liable for any loss, damage, or expense (of any kind, whether direct, indirect, or consequential) incurred by the Customer as a result of delay in completion of the Job.
4.1 The price of the Job is subject to change with reasonable prior notice, and may be increased by the amount of any reasonable increase in the cost of supply of the Job that is beyond the control of the Company between the date of the contract and the completion of the Job. The Customer will have 5 working days in which to give notice of termination of the Job or dispute of the increased quoted price after which time if no such notice is received the Customer is deemed to have accepted the revised quote. In the event of termination the Customer shall be liable for all costs incurred by the Company up to and including the date of termination.
4.2 The price of the Job is subject to GST, payable by the Customer to the Company together with the price of the Job.
5.1 A deposit (if any is required by the Company) must be paid in cleared funds at the time the Customer's order is submitted to the Company for acceptance or when the Customer accepts the quote. If the Customer is in default, the Company may cancel the Job and retain the deposit (in addition to any other rights or remedies the Company may have under the Terms of Trade or at law or in equity or otherwise).
5.2 Where the Company has agreed to give the Customer credit, payment for the Job shall be made on or before the 20th of the month following the completion of the Job. Otherwise, payment must be made in cash or cleared funds, on or before the completion of the job.
5.3 Payment for the Job must be made in full, without set-off or deduction, in cash or cleared funds. Receipt of a cheque, bill of exchange, or other negotiable instrument is not payment until the Company has been paid in cleared funds.
6.1 Failure by the Customer to make payment to the Company on the due date, or the appointment of a Statutory Manager, receiver, liquidator or voluntary administrator or the Customer committing an act of bankruptcy, or entering into a scheme of arrangement with its creditors is a default under the Terms of Trade, in which case the Company is entitled to immediately exercise all or any of its remedies in respect of the default.
6.2 Where a Customer is in default:
6.2.1 The Company may suspend supply and services to the Job;
6.2.2 The Customer agrees to pay on demand, on a full indemnity basis, all legal and debt collection agency costs incurred by the Company in enforcing against the Customer any of the Company's rights or remedies.
6.2.3 The Company may charge the Customer interest at the rate of 18% per annum, calculated on a daily basis and compounded monthly, on any amount owing but unpaid. Such interest will continue to run after as well as before judgment.
6.2.4 The Company may cancel any other order, or contract, or arrangement between the Company and the Customer, or suspend the performance of such order, contract, or arrangement pending payment without being liable to the Customer for any losses (of any kind whether direct, indirect, or consequential).
6.2.5 The Company may require immediate payment of all sums owing to the Company whether due or not.
6.2.6 The Company may offset any amounts owed by the Company to the Customer and immediately withdraw any credit facilities.
7.1 Where a dispute arises out of the Terms of Trade, an Order, or the contract between the Customer and the Company, the parties must refer the matter to arbitration under the provisions of the Arbitration Act 1996.
7.2 In the event of a dispute, the Company's liability is limited in accordance with clause 11.
8.1 Complaints in respect of a defective Job must be notified within 5 working days of completion of the Job, or the receipt of the invoice pertaining to the allegedly defective component of the Job (whichever is the earlier). The Customer shall have no claim with regard to any Job that has been altered or in anyway utilised by the Customer.
8.2 No complaint entitles the Customer to withhold payment of any sum due to the Company under this or any other contract that the Company may have with the Customer, nor shall such a claim give the Customer a right to set off the amount of the complaint against any payment due by the Customer to the Company.
8.3 The Company will work with the Customer to resolve, rectify or otherwise satisfy any complaint within 20 working days of receiving the complaint. Failing such resolution, rectification or otherwise satisfaction, a dispute will have arisen between the parties that is to be resolved in accordance with clause 7.
9 OWNERSHIP / RECOVERY OF JOB
9.1 Goods which form part of the Job, and any accounts receivable of the Customer arising from its partial or complete on sale of the Job, remain the sole and absolute property of the Company as legal and equitable owner until the Company has received payment in full of all monies (whether for the Job or otherwise) owed by the Customer to the Company.
9.2 If the Customer is in default, the Company may (without prejudice to any other rights or remedies) enter any premises occupied by the Company to recover goods that form part of the Job. If the premises are those of a third party, the Company may enter and recover the Job as the Customer's agent, and the Customer irrevocably appoints the Company for this purpose.
9.3 The Company may sell any recoverable portion of the Job and apply the proceeds towards the amount owed by the Customer.
10 SECURITY INTEREST
10.1 The Customer grants the Company a security interest (as defined in the Personal Property Securities Act 1999 ("the PPSA")) in:
10.1.1 All Jobs supplied by the Company to the Customer (as detailed in each invoice supplied to the Customer), and
10.1.2 The proceeds of such Jobs, and
10.1.3 The accounts receivable of the Customer which are the proceeds of Jobs supplied by the Company
As security for all amounts owing by the Customer to the Company at any time from any cause, for present or future indebtedness.
10.2 The Customer acknowledges that, to the extent the Company has rights in addition to those set out in Part 9 of the PPSA, the Company may elect to enforce those rights, irrespective of the position under the PPSA.
10.3 To the maximum extent permitted under the PPSA, the Customer agrees to waive its rights as debtor. The Customer has no rights under (or by reference to) sections 114(1)(a), 116, 117(1)(c), 119, 120(2), 121, 125, 129, 131, 132, 133 and 134 of the PPSA. In particular, but without limitation, the Customer agrees to waive the Customer's right to receive a copy of the verification statement confirming registration of a Financing Statement or a Financing Change Statement relating to any security interest the Company may have in a Job supplied to the Customer from time to time.
10.4 The Customer must immediately notify the Company of any change in the Customer's name.
11 WARRANTIES AND CONSUMER GUARANTEES ACT 1993
11.1 Save for any warranties provided in writing by, or imposed by law on, the Company in relation to Jobs supplied by the Company to the Customer, the Company makes no representation and gives no assurance, condition, or warranty of any kind to the Customer in relation to the Job, and accepts no liability for any assurance, condition, warranty, representation, statement, or term not expressly set out in the Terms of Trade or in any quote given by the Company to the Customer.
11.2 Without limiting clause 10.1, the provisions of the Consumer Guarantees Act 993 are excluded to the maximum extent possible.
11.3 The benefit of any warranties and conditions conferred by the Company on the Customer are personal to the Customer and are non-assignable.
12 LIABILITY AND INDEMNITY
12.1 The Company is not responsible for any defect, failure, or delay resulting from the provision of the Job to, or the acts or omissions of, any third party.
12.2 Except as provided in the Terms of Trade, the Company shall not be liable for any loss or damage of any kind whatsoever, including consequential loss (including loss of profits) or property damage, whether suffered or incurred by the Customer or another person, and whether in contract, or tort, or otherwise, and whether such loss or damage arises directly or indirectly from the Job provided by the Company to the Customer.
12.3 Should the Company be found liable in relation to a defective or damaged Job supplied by the Company, that liability is limited, at the Company's option, to either:
12.3.1 Replacing or redoing the defective or damaged Job; or
12.3.2 Refunding the price paid by the Customer for the defective or damaged Job.
12.4 Where the Company elects to replace or redo the Job, the Company must make reasonable efforts promptly to do so, but will not be liable for any delay.
13 FORCE MAJEURE
13.1 The Company is not liable for any failure or delay in supply or completion as a result of strike, industrial dispute, natural disaster, shortage or unavailability of stocks of Job, shortage of labour, lack of skilled labour, delay in transit, import restriction, legislative governmental or other prohibition or restriction, fire, flood, hostilities, commotions, or other causes whatsoever beyond the Company's reasonable control.
14 TRADING BUSINESS
14.1 Where the Customer is a Trading Business, it may not assign all or any of its rights or obligations under the Terms of Trade without the written consent of the Company.
14.2 The Customer must notify the Company immediately in writing of any change in effective control of the Customer.
14.3 If there is a change of effective control of the Customer, the Company may, at the Company's option demand immediate payment of all amounts owing to the Company by the Customer, whether or not such amounts are otherwise due for payment.
15 GOVERNING LAW AND JURISDICTION
15.1 New Zealand law governs the Terms of Trade, Order and contract and the courts of New Zealand shall have non-exclusive jurisdiction in any proceedings relating to it.