Terms and Conditions of Trade
These are the Terms and Conditions of Trade between UC Industries Limited (“Company”) and the customer (“Customer”) entering into this contract and accepting the quotation for the supply and/or manufacture of Undercover product(s) and associated materials (“Goods”), and/or workmanship including but not limited to the installation, building, erection or removal of redundant materials (“Services”). In the case of any interpretation or dispute, these terms shall prevail.
THE PARTIES AGREE:
1. Price and Payment
1.1. The Company will provide a quotation for the price and description of supplying the Goods and/or Services that will be valid for 30 days from the date of quotation, provided that the Company may withdraw the quotation at any time prior to the Customer accepting the quote. The quotation and these terms of trade (“Contract”) are deemed accepted by the Customer when the Customer delivers a signed copy of the quotation to the Company.
1.2. The Company quotation is based on the information and discovery to hand at the time of quotation, and that further discovery of relevant information relating to the state of the Customer’s property may result in additional charges. In the event the Company identifies the need for additional charges, the Company will present the Customer with a Variation Document detailing those additional charges. The Customer will either elect to pay for the additional work and charges detailed in the Variation Document or not accept the Variation Document, in which case the Customer agrees to pay the Company for work completed.
1.3. The Customer will pay for the Goods and/or Services in accordance with the following timings for payment, as set out in the quotation:
a. Full payment for Goods and Services prior to delivery; or
b. 50% deposit with the order and 50% upon completion; or
c. By other mutual arrangement in writing.
1.4. If payment is not made on the due date, the Company reserves the right to withhold further supply of Goods and Services until the Customer’s account is paid in full. Interest will accrue on unpaid accounts at the rate of 5% above the Company’s bank’s overdraft rate per month as from the due date until payment is received in full. The Company reserves the right to allocate payments to any or all outstanding invoices.
1.5. Any payments made by credit card will incur an additional 3% fee.
1.6. The Customer agrees if the job is cancelled prior to completion to pay for Goods and Services supplied to the date of cancellation.
1.7. The Customer agrees that it is the sole responsibility of the Customer and/or homeowner to obtain any and all required consents and permits from the local authorities and to meet all related costs. The Customer indemnifies the Company for any costs, damages and/or actions that it may suffer in connection with or arising out of the Customer’s failure to meet its obligation under this clause.
2. Warranties
2.1. The Company warrants its workmanship in relation to its Services for a period of ten (10) years from the date of completion of the Services.
2.2. The Customer acknowledges that, other than pergolas manufactured by the Company which are covered by the express 10-year warranty as to durability, all other goods and products supplied by the Company (for example and without limitation, Ziptrack components and blind mesh) are covered by manufacturer warranties only where applicable.
2.3. The quality and standards of the Goods and Services shall be assessed upon completion and determined reasonably against the standard of work at similar sites, and claims under any applicable warranty in clause 2.2 above shall not be accepted by the Company where:
- The claim is not notified to the Company within ten (10) days of the defect, fault, failure or damage occurring.
- The Company is not given reasonable opportunity to investigate the claim.
- Not all Goods and/or Services were exclusively supplied by the Company.
- The defect, fault or damage is due to subsidence of the Customer’s property.
- The defect, fault, or damage is due to events beyond the reasonable control of the Company such as erosion, animals, earthquake and cyclonic effects.
- The Customer has misused the Goods including failure by the Customer to follow any instructions or guidelines provided in relation to the use of the Goods, and the misuse of chemicals including cleaning products in its ongoing care and maintenance.
- The Customer or a third party have attempted to repair or rectify any defect, fault, or failure of the Goods and/or Services.
- The Customer has failed to carry out reasonable care and maintenance for the Goods.
- The defect, fault or damage is a result of normal and fair wear and tear.
2.4. The Company will use reasonable endeavours to ensure that the Goodsare delivered and/or the Services are completed on time, subject to availability of Goods and materials and the Customer’s readiness of the site. The Company shall not be liable for any delay beyond the reasonable control of the Company.
3. Reservation of Title
3.1. Prior to receiving payment in full for all Goods and Services, title in any Goods supplied by the Company will remain with the Company, even if the Goods have been built in or permanently attached to the Customer’s property.
3.2. Until full payment, it shall be the Customer’s obligation to maintain insurance in respect of the Goods.
3.3. If the Customer fails to pay on the due date, and/or is in breach of these terms, the Customer authorises the Company to enter on to the Customer’s property to recover the Goods supplied, or to which the Company holds title, and to hold those Goods pursuant to this clause 3.
3.4. The Customer indemnifies the Company for any losses or costs incurred in recovering such Goods. In particular (but without limitation) the Customer is responsible for any damage caused in recovering Goods (including any damage caused in recovering Goods that have been built in or permanently attached). If the premises are the premises of a third party, the Company will enter and receive the Goods as the Customer’s agent. The Company will be entitled to sell any Goods held by the Company and apply the proceeds towards amounts owed to it by the Customer if the Customer has failed to pay any amount due within 14 days of a written demand or within 60 days of an amount becoming due (whether demanded or not).
3.5. This clause 3 is intended to protect the Company in the event of default, insolvency, liquidation, or receivership of the Customer.
4. Copyright of Documents
4.1. All documents including but not limited to drawings, designs, specifications and technical data and in the works executed from them (“Documents”), remain the intellectual property of the Company. The Customer must not disclose the Documents to any other person(s) or use the same for its own benefit without the Company’s written permission. After payment of all fees and other job-related costs due to the Company, the Customer may retain some of the Documents subject to the Company’s approval for its own record only but must not copy, reproduce, issue, distribute, make adaptation and/or use the Documents for any other purpose.
5. Insurance / Limitation of Liability
5.1. The Customer shall be entirely responsible for construction insurance covering the install of the Goods on the Customer’s property, and shall provide the Company with confirmation of such insurance upon request.
5.2. The Company shall be under no liability whatsoever to the Customer for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by the Company of this Contract.
5.3. In the event of any breach of this Contract by the Company the remedies of the Customer shall be limited to damages which under no circumstances shall exceed the Contract Price of the Goods.
6. Consumer Guarantees Act 1993 & Contract and Commercial Law Act 2017
6.1. The guarantees contained in the Consumer Guarantees Act 1993 (“CGA”) are excluded where the Customer acquires the Goods and Services from the Company for the purposes of business in terms of section 2 and 43 of the CGA.
6.2. Where the Customer acquires the Goods and Services for business use, then subject to clause 2 of this Contract, all conditions, guarantees and/or warranties such as those implied conditions and/or warranties under the Contract and Commercial Law Act 2017 are hereby excluded and negated to the fullest extent permissible by law.
7. Privacy Act 1993
7.1. The Customer and the Guarantor/s (if separate to the Customer) authorise the Company 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 the Company from the Customer directly or obtained by the Company 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.
7.2. Where the Customer and/or Guarantors are an individual the authorities under clause 7.1 are authorities or consents for the purposes of the Privacy Act 2020.
7.3. The Customer and/or Guarantors shall have the right to request the Company for a copy of the information about the Customer and/or Guarantors retained by the Company and the right to request the Company to correct any incorrect information about the Customer and/or Guarantors held by the Company.
8. Security
8.1. If the Customer is a company or trust, the director(s) or trustee(s) signing the Contract (or the credit application form, as applicable), in consideration for the Company agreeing to supply Goods and Services and grant credit to the Customer at their request, also sign the Contract (or the credit application form, as applicable) in their personal capacity and jointly and severally personally undertake as principal debtors to the Company the payment of any and all monies now or hereafter owed by the Customer to the Company and indemnify the Company against non-payment by the Customer. Any personal liability of a signatory hereto shall not exclude the Customer in any way whatsoever from the liabilities and obligations contained in the Contract. The signatories and Customer shall be jointly and severally liable under the terms and conditions of the Contract and for payment of all sums due thereunder.
8.2. The Customer agrees that the Company shall have the right to complete and register a mortgage over any property owned by the Customer and/or any Guarantor of the Customer to secure any amount owing by the Customer to the Company, and the Company shall have the right at its discretion to register a caveat on the Title to any such property for the purpose of this clause 8, and the Customer and/or the Guarantor hereby irrevocably appoints the Company as the attorney of the Customer and/or the Guarantor for the purpose of the Company exercising its rights under this clause 8.
8.3. The Customer shall pay any expenses including a full indemnity of solicitor’s fees, debt collection fees, disbursements and legal costs incurred by the Company in the enforcement of any rights under this Contract.
9. Personal Property Securities Act 1999 (“PPSA”)
9.1. Upon assenting to these terms and conditions in writing (as evidenced by the Customer’s signature on the Company’s credit application form, or quotation form, or electronic acceptance of the Company’s quotation) 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 the Company to the Customer (if any) and all Goods that will be supplied in the future by the Company to the Customer;
c. It shall unconditionally ratify any actions taken by the Company under this clause.
9.2. The Customer undertakes to:
a. Sign any further documents and/or do such further acts 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 or financing change statement on the Personal Property Securities Register;
b. 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;
c. Not register a financing change statement or a change demand without the prior written consent of the Company;
d. Immediately advise the Company of any material change in the business practices of selling the Goods which would result in a change in the nature of proceeds derived from such sales.
9.3. The Company and the Customer agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms and conditions. The Customer waives its rights as a debtor under sections 115, 120(2), 121, 125, 126, 127, 129, 131, and 132 of the PPSA.
9.4. Unless otherwise agreed to in writing by the Company, the Customer waives its right to receive a verification statement in accordance with section 148 of the PPSA.
10. General
10.1. The Customer agrees to resolve any dispute within fourteen (14) days from the time of delivery or installation inspection otherwise that the Goods and Services have been accepted. Any dispute not resolved shall be filed immediately to the Disputes Tribunal or to a Mediator agreed between the parties and such decisions from mediation will be accepted as final and binding.
10.2. If any provision of this Contract shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
10.3. The words “Company” shall where the context so permits or requires be deemed to include the Company’s successors or assigns and the words “Customer” shall where the context so permits or requires be deemed to include the Customer’s executors and administrators if an individual or its successors if an incorporated company.
10.4. This Contract shall be governed by the laws of New Zealand and are subject to the jurisdiction of the courts of New Zealand.
10.5. The Customer shall not be entitled to set off against or deduct from the Contract Price any sums owed or claimed to be owed to the Customer by the Company.
10.6. The Company may licence or sub-contract all or any part of its rights and obligations without the Customer’s consent.
10.7. The Company reserves the right to review this Contract at any time. If following any such review, there is to be any change to this Contract, then that change will take effect from the date on which the Company notifies the Customer of such change.
10.8. Neither party shall be liable for any default due to any act of God, war, terrorism, pandemic, strike, lock-out, industrial action, fire, flood, drought, storm or other event beyond the reasonable control of either party.
10.9. The failure by the Company to enforce any provisions of this Contract shall not be treated as a waiver of that provision, nor shall it affect the Company’s right to subsequently enforce that provision.
11. Health and Safety
11.1. The Customer agrees that the Company has not and will not assume any obligation as the Customer’s agent or otherwise which may be imposed from the Customer from time to time pursuant to the Health and Safety at Work Act 2015 arising out of this engagement. The Company and the Customer agree that in terms of the Act, unless the work is being conducted upon the Company’s premises, the Company is not the entity that controls the place of work
