Terms & Conditions of Trade
1.1 “Supplier” means Filter & Flue Cleaning Services Limited, its successors and assigns or any person acting on behalf of and with the authority of Filter & Flue Cleaning Services Limited.
1.2 “Customer” means the person/s requesting the Supplier to provide the Services as specified in any invoice, document or order, and if there more than one person requesting the Services is a reference to each person jointly and severally.
1.3 “Incidental Items” means any goods, documents, designs, drawings or materials supplied, consumed, created or deposited incidentally by the Supplier in the course of it conducting, or supplying to the Customer, any Services.
1.4 “Services” means all Services supplied by the Supplier to the Customer at the Customer’s request from time to time.
1.5 “Price” means the price payable for the Services as agreed between the Supplier and the Customer in accordance with clause 2 of this contract.
2. Price and Payment
2.1 The Price shall be as indicated on invoices provided by the Supplier to the Customer in respect of the Services supplied.
2.2 Time for payment for the Services shall be of the essence and will be stated on the invoice, quotation, or any other order forms. If no time is stated then payment will be due seven (7) days following the date of the invoice.
2.3 Unless otherwise stated the Price does not include GST. In addition to the Price the Customer must pay to the Supplier an amount equal to any GST the Supplier must pay for any supply by the Supplier under this or any other agreement for providing the Supplier’s Services. The Customer must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Customer pays the Price. In addition the Customer must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.
3. Delivery of Services
3.1 At the Supplier’s sole discretion delivery of the Services shall take place when:
(a) the Services are supplied to the Customer at the Supplier’s address; or
(b) the Services are supplied to the Customer at the Customer’s nominated address.
3.2 Delivery of the Services to a third party nominated by the Customer is deemed to be delivery to the Customer for the purposes of this agreement.
3.3 The Supplier may deliver the Services by separate instalments. Each separate instalment shall be invoiced and paid for in accordance with the provisions in these terms and conditions.
3.4 Any time specified by the Supplier for delivery of the Services is an estimate only and the Supplier will not be liable for any loss or damage incurred by the Customer as a result of delivery being late. However, both parties agree that they shall make every endeavour to enable the Services to be supplied at the time and place as was arranged between both parties. If the Supplier is unable to supply the Services as agreed solely due to any action or inaction of the Customer then the Supplier shall be entitled to charge a reasonable fee for re-supplying the Services at a later time and date.
4.1 Irrespective of whether the Supplier retains ownership of any Incidental Items all risk for such items shall pass to the Customer as soon as such items are delivered to the Customer and shall remain with the Customer until such time as the Supplier may repossess the Incidental Items in accordance with clause 5.3(f). The Customer must insure all Incidental Items on or before delivery.
4.2 The Supplier reserves its right to seek compensation or damages for any damage, destruction or loss suffered in relation to the Incidental Items as a result of the Customer’s failure to insure in accordance with clause 4.1.
5.1 The Supplier and the Customer agree that where it is intended that the ownership of Incidental Items is to pass to the Customer that such ownership shall not pass until:
(a) the Customer has paid the Supplier all amounts owing for the Services; and
(b) the Customer has met all other obligations due by the Customer to the Supplier in respect of all contracts between the Supplier and the Customer.
5.2 Receipt by the Supplier 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 the Supplier’s ownership or rights in respect of the Incidental Items shall continue.
5.3 It is further agreed that:
(a) the Customer is only a bailee of the Incidental Items and must return the Incidental Items to the Supplier immediately upon request by the Supplier;
(b) the Customer holds the benefit of the Customer’s insurance of the Incidental Items on trust for the Supplier and must pay to the Supplier the proceeds of any insurance in the event of the Incidental Items being lost, damaged or destroyed;
(c) the Customer must not sell, dispose, or otherwise part with possession of the Incidental Items. If the Customer sells, disposes or parts with possession of the Incidental Items then the Customer must hold the proceeds of sale of the Incidental Items on trust for the Supplier and must pay or deliver the proceeds to the Supplier on demand.
(d) the Customer should not convert or process the Incidental Items or intermix them with other goods, but if the Customer does so then the Customer holds the resulting product on trust for the benefit of the Supplier and must dispose of or return the resulting product to the Supplier as the Supplier so directs.
(e) the Customer shall not charge or grant an encumbrance over the Incidental Items nor grant nor otherwise give away any interest in the Incidental Items while they remain the property of the Supplier;
(f) the Customer irrevocably authorises the Supplier to enter any premises where the Supplier believes the Incidental Items are kept and recover possession of the Incidental Items.
6. Personal Property Securities Act 1999 (“PPSA”)
6.1 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 Incidental Items previously supplied by the Supplier to the Customer (if any) and all Incidental Items that will be supplied in the future by the Supplier to the Customer.
6.2 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 the Supplier 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 Supplier for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register or releasing any Incidental Items charged thereby;(c) not register a financing change statement or a change demand without the prior written consent of the Supplier.
6.3 The Supplier and the Customer agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms and conditions.
6.4 The Customer waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA.
6.5 Unless otherwise agreed to in writing by the Supplier, the Customer waives its right to receive a verification statement in accordance with section 148 of the PPSA.
6.6 The Customer shall unconditionally ratify any actions taken by the Supplier under clauses 5.1 to 5.5.
7. Default and Consequences of Default
7.1 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 a half percent (2.5%) per calendar month (and at the Supplier’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
7.2 If the Customer owes the Supplier any money the Customer shall indemnify the Supplier from and against all costs and disbursements incurred by the Supplier in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, the Supplier’s collection agency costs, and bank dishonour fees).
8. Security and Charge
8.1 In consideration of the Supplier agreeing to supply the Services, the Customer charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Customer either now or in the future, to secure the performance by the Customer of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
8.2 The Customer indemnifies the Supplier from and against all the Supplier’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising the Supplier’s rights under this clause.
8.3 The Customer irrevocably appoints the Supplier and each director of the Supplier as the Customer’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 7 including, but not limited to, signing any document on the Customer’s behalf.
9. Privacy Act 2020
9.1 The Customer authorises the Supplier or the Supplier’s agent to:
(a) access, collect, retain and use any information about the Customer;
(i) (including any overdue fines balance information held by the Ministry of Justice) for the purpose of assessing the Customer’s creditworthiness; or
(ii) for the purpose of marketing products and services to the Customer.
(b) disclose information about the Customer, whether collected by the Supplier from the Customer directly or obtained by the Supplier 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.
9.2 Where the Customer is an individual the authorities under clause 8.1 are authorities or consents for the purposes of the Privacy Act 2020.9.3 The Customer shall have the right to request the Supplier for a copy of the information about the Customer retained by the Supplier and the right to request the Supplier to correct any incorrect information about the Customer held by the Supplier.
10. Health and Safety
10.1 Both the Customer and the Supplier must comply with their obligations under the Health and Safety at Work Act 2015 (HSWA) and all regulations and codes of practice made under HSWA and its obligations under the Resource Management Act 1991.
10.2 The Customer has control of any Customer site in respect of HSWA and to assist the Contractor in the preparation of a health and safety plan in respect of the Services, the Customer will provide information in respect of all known hazards and potential hazards (if any) in any Services areas and how such hazards could be avoided.
11.1 Neither party will be liable to the other (under the law of contract, tort, equity or otherwise) for any damages arising out of or in connection with the Services that are indirect (meaning not arising in the ordinary course as a direct, natural or probable consequence of the act or omission complained of), regardless of the cause of such damages or whether the other party had been advised of the possibility of such damage.
11.2 Each party’s liability to the other for damages (under the law of contract, tort, equity or otherwise) arising out of or in connection with the Services will be limited in aggregate of the net amount payable by Customer to it in the previous 12 months or in respect of physical property damage, the full amount (less any deductible) paid out under any insurance policy that the Supplier is required to holds for such damage.
11.3 The limitations of liability contained in these terms and conditions will not apply to the Customer’s legal liability for claims relating to personal injury or death to the extent either:
(i) caused by the Customer’s negligence or wrongful act or omission; or
(ii) the Customer would be liable under applicable law.
11.4 The Supplier will be responsible for any damage it may cause to any Customer services area performing the Services. However, the Supplier accepts no responsibility for damage to the surface of any area it is required to pass over to deliver the Incidental Items or provide any Services or to pipes, cables or other fixtures beneath such access ways.