TERMS OF TRADE [COMMERCIAL CLIENTS]
1.1 In these conditions, unless the context otherwise requires:
Agreement means these terms and conditions under which both parties have agreed to do business.
Customer or “you” means the person signing this agreement on the signing page.
Company, “we”, “us” “Chemwash”, or “our” means Chemwash Manawatu Ltd.
Deliverables means the services described in the Schedule One which contains the description, specifications, standards and other properties or qualities of the Deliverables to be supplied by Chemwash to the Customer in accordance with this agreement.
Fees means the payments and charges set out in the schedule one.
Full service means low pressure detergent clean of building walls including outside of spouting and under eaves + inside gutter hand clear (any fine debris cannot be removed) + pure water exterior window clean.
Half service means inside gutter hand clear (any fine debris cannot be removed) + pure water exterior window clean.
Pest control service means applying an insecticide to the exterior cladding of the dwelling.
Window clean means cleaning the exterior of windows using a pure water brush method.
GST means goods and services tax arising under the goods and services tax act 1985
The rule of construction known as the contra proferentem rule does not apply to these terms of trade.
Quotation means our written quotation of costs for the work that we have agreed to do for you set out in schedule one.
Work means our performance of services for you (including any products that we use to provide those services) as described in our quotation attached to these terms of trade and any other Work that we do for you at your request or that is requested in accordance with clause.
Working day means a day when the offices of registered banks in the area where the work is being done are open for over the counter business
The term “includes” or “including” (or any similar expression) is deemed to be followed by the words “without limitation”.
Words importing the singular include the plural and vice versa.
Headings are for convenience only and do not form part of, or affect the interpretation of, these terms of trade.
References to any party includes that party’s executors, administrators, successors and permitted assigns.
References to any statutory provision are to statutory provisions in force in New Zealand and include any statutory provision which amends or replaces it, and any by-law, regulation, order, statutory instrument, determination, approved code of practice or subordinate legislation made under it.
References to “we” “us” and “our” include our employees, contractors and agents.
References to a person include an individual, company, corporation, partnership, firm, joint venture, association, trust, unincorporated body of persons, governmental or other regulatory body, authority or entity, in each case whether or not having a separate legal identity.
By ordering work from us, you agree to these terms of trade to the exclusion of your terms (if any).
2. PROVISION OF WORK
2.1 We will do the work in accordance with our quotation and these terms of trade.
3.1 Unless otherwise agreed in writing, quoted prices are in New Zealand dollars exclusive of GST and are valid for 30 days from that date of the quotation unless withdrawn by us prior to acceptance.
3.2 You acknowledge that in accepting our quotation you are relying on your own skill and judgement and not on any representations made by us about the suitability of the work for your property.
3.3 We will not commence the work until you have accepted our quotation in writing (including terms of trade) which are then binding on you and may not be varied without our written consent.
4. CONTRACT TERM
4.1 Where we agree to do on-going work for you:
(a) the term of the contract will be the term specified in schedule two and will automatically renew on a monthly basis unless terminated by you or us in accordance with clause 12; and
5. PRICE AND PAYMENT
5.1 The price for the work will be as set out in our invoice and may differ from our quoted price in schedule one to take account of:
(a) any variation in the work from our quotation in schedule one (including any variation as a result of additional work requested by you or required due to hidden or unidentifiable difficulties, delayed or obstructed/inadequate access and unavailability of a suitable free water source);
(b) delays due to any third party occupying the property where the work is to be done; or
(c) increases in our costs for materials and labour which are beyond our control.
5.2 If you and any other person jointly ask us to do work (or you ask us to do the work on behalf of any third party), you are jointly and severally liable for all payments owing to us for that work with that other person (or third party).
5.3 We issue accounts monthly and on completion of the work unless otherwise stated in schedule two.
5.4 Unless otherwise agreed in writing (schedule two), the due date for payment of our accounts is the 20th of the month following the date of the account and all accounts must be paid in New Zealand dollars.
5.5 If these terms of trade are terminated in accordance with clause 9.1(c) or by you under clause 12 prior to completion of the work, you must immediately pay us the actual cost for the work completed at the termination date.
5.6 You must pay GST and any other government duties, levies and taxes in respect of the work.
5.7 We may require you to pay a non-refundable deposit before we commence the work. 5.8 If you do not make payment by the due date, you are in default and we may:
(a) require you to pay default interest at the rate 5% per annum above the overdraft rate charged by our bankers, which will accrue on a daily basis on the total amount outstanding from the due date to the date of payment in full; or
(b) if payment is outstanding for seven days from the due date, suspend performing the work on credit until the date of payment in full, in which case you must pay in cash (on completion) for any work done by us until payment is made in full (together with any accrued interest, legal costs (on a solicitor to client basis) and collection fees that we may incur in recovering (or attempting to recover) from you any overdue amount).
5.9 We may notify you at any time that we will no longer carry out the work on credit.
5.10 Payment of all money owing for the work must be made without set-off or deduction of any kind.
5.11 Your obligations under these terms of trade continue until:
(a) we have received payment (in cash or cleared funds) for all amounts owing to us for the work; and
(b) you have met all other obligations that you owe to us in relation to the work.
5.12 We will apportion payments to outstanding accounts as we think fit.
6. PERFORMANCE OF WORK
6.1 We will:
(a) perform the work with reasonable skill, care and diligence in a professional manner;
(b) endeavour to ensure that the work is performed in accordance with any time frames agreed in writing with you; and
(c) liaise with you during the course of doing the work in accordance with your reasonable requirements.
6.2 You will give reasonable assistance to enable us to perform the work by:
(a) giving clear instructions;
(b) promptly providing any information required by us to enable us to complete the work (including the age and condition of any aluminium joinery that will be affected by the work);
(c) ensuring that we have free and clear access to the property;
(d) ensuring that the property is reasonably ready for the work to be done with minimal tradespersons and works in progress, animals removed or restrained and loose standing objects (for example, vehicles, furniture, pot plants and ornaments) removed from the area where we are to do the work;
(e) fulfilling any special conditions notified to you by us to enable us to do the work;
(f) organising (and where applicable paying any costs):
(i) a suitable supply of free water;
(ii) all joinery, flashings, exterior cladding and wall to floor substances (internal and external) are sealed against water entry;
(iii) the disconnection and reconnection of any mains power entering buildings on the property;
(iv) isolating all electronic components (which includes but is not limited to wall and ceiling sockets, switches, electronic alarms, sensors and automatic garage door openers) against water ingress; and
(v) unless otherwise specified in our quotation, providing any necessary suitable scaffolding to enable us to do the work;
(g) notifying us about any hazards and risks to safety arising in the workplace where we are to perform the work; and
(h) consulting and cooperating with us, so far as is reasonably practicable, whenever we and you have a duty under the Health and Safety at Work Act 2015 in relation to the same matter.
7. ERROR AND OMISSIONS
7.1 When we complete the work, you will:
(a) inspect the work;
(b) notify us within seven days of any alleged defect, errors, omissions or failure to comply with the quotation; and
(c) give us an opportunity to inspect the work if you believe the work is defective in any way.
7.2 If you fail to comply with these provisions, the work will be conclusively presumed to be free from any defect or damage.
8. LIMITATION OF LIABILITY
8.1 We will not be liable for:
(a) any defect or damage which may be caused or partly caused by or arise through:
(i) failure on your part to properly maintain your property;
(ii) failure on your part to follow any instructions or guidelines provided by us;
(iii) aluminium joinery being more than five years old or where the surface of the joinery is degraded; or
(iv) fair wear and tear, any accident or act of god.
(b) If the workmanship is repaired, altered or overhauled without our consent; and
(c) Any delay in either replacing or remedying the workmanship or in properly assessing your claim.
8.2 The Consumer Guarantees Act 1993, the Fair Trading Act 1986, and other statutes may impose warranties, conditions or obligations upon us. We exclude all such imposed warranties, conditions or obligations to the extent permitted by law.
8.3 You acknowledge that the guarantees contained in the Consumer Guarantees Act 1993 are excluded where you acquire work from us for the purposes of a business.
8.4 Our liability to you arising from any breach of these terms of trade or for any other reason, is limited to the amount of the actual price charged by us for completing the work. This limitation of liability includes loss or damage or liability of any kind whatsoever (including consequential loss or lost profit or business) whether suffered or incurred by you or another person and whether in contract, or tort (including in negligence), or otherwise and whether such loss or damage arises directly or indirectly from work done by us to you.
(a) you fail to pay any money owing on the due date; or
(b) we believe that you are:
(i) insolvent or bankrupt;
(ii) have a receiver, liquidator, administrator, bankruptcy trustee, statutory manager or similar officer appointed in respect of all or any of your property;
(iii) make an assignment for the benefit of, or make any arrangement or composition with your creditor; or
(iv) pass any resolution (or are the subject of proceedings commenced) for your amalgamation with any other entity, except as part of a genuine solvent restructuring; or
(c) you are otherwise in breach of your obligations under these terms of trade, in addition to any remedies we may have at law, we may:
(a) charge default interest in accordance with clause 4.8(a);
b) suspend doing the work on credit in accordance with clause 5.8(b); and
(c) immediately terminate these terms of trade by notice in writing to you.
10. PRIVACY OF INFORMATION
10.1 You authorise us to:
(a) collect, retain and use information about you from any person for the purpose of assessing your creditworthiness; and
(b) disclose information about you:
(i) to any person who guarantees, or who provides insurance, or who provides any other credit support, in relation to your obligations to us;
(ii) to any persons as may be necessary or desirable to enable us to exercise any power or enforce or attempt to enforce any of our rights, remedies and powers under these terms of trade.
10.2 Where you are an individual, the authorities granted under clause 10.1 are authorities or consents for the purposes of the Privacy Act 1993 and you have the right of access to, and to ask for correction of, your personal information.
11. CHANGE IN CONTROL
11.1 You must give us at least fourteen days prior written notice of any proposed change in your ownership or any change in your name or any other change in your contact details or nature of your business. You will be liable for any loss incurred by us as a result of your failure to comply with this clause.
12.1 We may cancel any work to which these terms of trade apply at any time before the work is commenced by giving written notice to you. We will then repay to you any deposit paid in respect of the cancelled work. We will not be liable for any loss or damage whatsoever arising from such cancellation.
12.2 In the event that you cancel any work, you will be liable for any loss incurred by us (including, but not limited to, any loss of profits) up to the scheduled time for commencing the work.
12.3 Where any contract is for a specified term of more than 12 months, you may cancel the contract by giving three month’s written notice to us.
13.1 You must not subcontract or assign any of your rights, powers or obligations under these terms of trade without our prior written consent.
14.1 Any claim or dispute arising under these terms of trade or in connection with this contract, or in relation to any question regarding its existence, breach, termination or invalidity (in each case, a “dispute”) will be settled in accordance with this clause 14.
14.2 Where a dispute arises, either party may give notice to the other outlining the dispute and requesting a formal meeting with a view to resolving it, in which case both parties will promptly attempt to resolve the dispute by consultation at the lowest practicable level of escalation.
14.3 If the dispute is not resolved within 10 working days (or any longer period agreed by the parties) of receipt of a notice under clause 14.2, either party may submit the dispute to be resolved by mediation by giving notice to the other party.
14.4 If the parties agree to undergo mediation under clause 14.3, the mediation is to be conducted as follows:
(a) The mediator will be agreed by the parties and will be appropriately qualified in mediating disputes (and be at least an associate member of the Arbitrators & Mediators Institute of New Zealand (AMINZ) or equivalent organisation). If the parties cannot so agree within three working days of the agreement to the referral to mediation, then either party may request the President for the time being of AMINZ (or his or her nominee) to appoint a mediator.
(b) Unless the parties agree otherwise, the mediation will be conducted in terms of the Standard Mediation Agreement promulgated by the Resolution Institute at the time the dispute is referred to mediation. If No Standard Mediation Agreement is promulgated by that organisation at the time of the dispute, the mediation will be conducted in a manner determined by the mediator except that:
(i) the mediation will be conducted on a without prejudice basis;
(ii) any party may terminate its involvement in the mediation at any time but only after consultation with the mediator;
(iii) any information disclosed during the mediation process will not be disclosed to any person not present at the mediation unless required for the purposes of obtaining professional advice or otherwise by law; and
(iv) the costs of the mediation will be borne equally by the parties.
14.5 Except to the extent this contract expressly permits otherwise, each party will continue to perform its obligations under this contract notwithstanding any dispute.
14.6 However, nothing in this clause 14 will prevent either party from seeking urgent interim relief from a New Zealand court, or require either party to refrain from exercising any rights or remedies available in connection with this contract.
15.1 Any notice may be given by phone, in person, posted, or sent by fax or email to you (or where you are a company, to any of your directors).
16.1 We may at any time by notice in writing to you (including by posting on our website) vary any provision of these terms of trade and you will be bound by that variation.
17.1 You will at all times treat as confidential all non-public information (including prices) and material received from us and will not publish, release, or disclose that material without our prior written consent.
18.1 You must pay our costs (including legal costs, as between solicitor and client) of and incidental to the enforcement or attempted enforcement of our rights, remedies and powers under these terms of trade.
19. FORCE MAJEURE
19.1 We will not be liable for delay or failure to perform the work if the cause of delay or failure is beyond our control.
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"The windows look amazing. Thank you for doing the job so promptly."