1. Terms and conditions:
All projects are supplied on the following terms and conditions, and such terms and conditions will apply to the quote.
For any project to be carried out by JACK for the customer, JACK will supply to the customer a quote, which is valid for 30 days from the date of the quote, and lapses thereafter. The quote takes effect on the date that it is accepted by the customer (whether that acceptance is implied or express). JACK reserves the right by notice to the customer to alter or amend any quote before receipt by JACK of acceptance by the quote by the customer. JACK reserves the right, by notice to the customer, to alter or amend any quote at any time prior to carrying out the project, where the alteration or amendment is due to an increase in the cost to JACK of any products and/or services which are the subject of the quote that is beyond the control of JACK. Where the customer requests products and/or services to be provided that are not included in the original quote, the customer agrees to pay the additional costs of such products and/or services, and the provision of the additional products and/or services shall be pursuant to these terms and conditions. Where the customer requests any related work to be carried out, JACK will use its best endeavours to source, commission and control suppliers and/or contractors to carry out the related work, but the customer is responsible for the payment for such work.
3. JACK’s obligations:
JACK agrees to, subject to the terms and conditions contained in these terms and conditions, carry out each project in accordance with the quote, and to do so with reasonable skill, care and diligence.
4. Obligations of the customer:
4.1 The customer agrees to:
(a) Pay JACK for carrying out the project according to the quote;
(b) Follow any reasonable instructions provided by JACK about the project;
(c) Provide JACK with access to all necessary services and amenities so as to allow JACK to carry out the project, provide access to the location, and ensure that the location remains in a state and condition that is safe for JACK and its employees and agents;
(d) Not to cause any disruption or obstruction to the carrying-out of any project;
(e) Where the customer is to supply goods in relation to the project, the customer shall ensure such goods are at the location prior to JACK commencing work on the project and that such goods shall be fit for use; and
(f) Ensure the location for the project complies with all necessary bylaws and restrictions, is structurally sound and safe (in accordance with all legislation governing safety in the workplace);
Without prejudice to any other right or remedy of JACK, if the customer fails to carry out or perform any of its obligations pursuant to this clause 4, then JACK may charge the customer a services delay charge for each day (or part thereof) that JACK is, in its reasonable opinion, unable and/or not required to carry out or perform the project as a result of such breach by the customer.
4.2 The customer acknowledges that unless otherwise agreed in writing between the customer and JACK, the customer shall be responsible for obtaining, paying for and maintaining in force all permits, approvals, authorisations, authorities, licences and consents of all regulatory authorities whatsoever which are or may be necessary or advisable in connection with the goods and/or services.
5. Charges and payment
5.1 The amount charged by JACK for carrying out any project will be specified in the quote (as may be amended in accordance with these terms and conditions). All prices on the quote are exclusive of GST unless stated otherwise.
5.2 Unless specifically stated in the quote or any agreed progress payment schedule payment for the project (which shall form part of these terms and conditions) is due on the due date as follows:
(a) A deposit of 50% of the total price for the project is payable at the time of acceptance of the quote by or on behalf of the customer;
(b) The balance of the total price for the project is payable without deduction or set off by the customer to JACK on completion of the project;
(in each case, the “due date”)
5.3 If the customer fails to make payment by the due date the customer shall pay interest on the amount outstanding at the rate of 5% above JACK’s bank’s current variable lending rate from the due date for payment until payment is made. The customer shall pay all costs, expenses and charges (including legal costs on a solicitor/client basis) that are incurred by JACK in recovering any money owing to JACK by the customer.
5.4 JACK has the absolute right to withhold delivery or cancel a quote where the customer has not paid for the products on the due date.
6. Delivery, risk and insurance
6.1 Delivery of the products shall be deemed complete upon JACK delivering the products at the location.
6.2 Irrespective of whether ownership and title to the products remains vested in JACK, risk in the products shall pass to the customer upon delivery. The customer is responsible for all insurance of all products from the time of delivery.
7. Property and retention of title
7.1 Ownership and title to the products supplied as part of any project shall remain vested in JACK and shall not pass to the customer until the total cost of products and services and any other sums due to JACK by the customer have been paid in full and received by JACK in accordance with clause 5.
7.2 If JACK supplies the products as part of any project without first obtaining payment for the same, then the customer acknowledges and agrees that JACK is entitled at the customer’s cost to register any security interest that JACK possesses regarding the products supplied and their proceeds on the Personal Property Securities Register and that JACK’s security interest survives until the customer has paid in full for all of the products supplied. The customer acknowledges and agrees that until payment has been made to JACK in full for all of the products supplied as part of any project from time to time:
(a) JACK possesses a purchase money security interest in the products; and
(b) If the customer sells the products prior to payment to JACK, it will pay the proceeds derived from that dealing into a separate account for the benefit and as trustee for JACK so that those proceeds remain identifiable in connection with that dealing and the products.
(c) If the goods are attached, fixed or incorporated into the customer’s property or the goods are mixed with other property so as to be part or constituent of any new goods, title to the new goods shall be deemed to be assigned to JACK as security for full satisfaction by the customer of the full amount owing by the customer.
7.3 If at any time JACK has sufficient cause to exercise its rights under section 109 of the PPSA, the customer irrevocably grants JACK (its agents and contractors) the right and licence to enter upon the customer’s premises and/or any location, where the products are located for the purposes of removing the products, without notice and without liability whatsoever to the customer, or to any person or company claiming through the customer for the resulting damage or loss.
7.4 The customer covenants that it will assist and co operate with JACK by completing any documentation and/or providing any information as may be required by JACK in order for JACK to achieve and perfect its desired security position under the PPSA.
7.5 The customer waives any right to receive a verification statement in respect of any financing statement or financing change statement relating to the security interest under the PPSA.
7.6 Nothing in sections 114(1)(a), 117(1), 133 and 134 of the PPSA shall apply to these terms and conditions.
7.7 The customer’s rights as a debtor in sections 116, 119, 120(2), 121, 125-127, 129 and 132 of the PPSA shall not apply to these terms and conditions.
7.8 In this clause 7 where used the following terms shall have the meanings as ascribed to them under the PPSA and associated regulations “accessions”, “commingled products”, “inventory”, “perfect”, “non purchase money security interest”, “proceeds”, “purchase money security interest” and “security interest.
8. Rights of termination:
JACK may immediately terminate this agreement upon the happening of any of the following events of default:
(a) If the customer defaults in performing its obligations under these terms and conditions and the default, if capable of being remedied, is not remedied within five working days from receiving a notice specifying the default and requiring remedy; or
(b) If the customer defaults in the performance of its obligations under these terms and conditions and the default is in JACK’s reasonable opinion incapable of being remedied; or
(c) If any amounts payable by the customer to JACK are overdue; or
(d) If the customer fails to meet any obligation under this or any other contract with JACK; or
(e) If the customer commits an act of insolvency including a compromise with creditors or appoints a voluntary administration; or if a receiver is appointed in respect of the assets of the customer; or if an arrangement with the customer’s creditors is made or likely to be made; or if the customer ceases or threatens to cease carrying on business; or if the ownership or effective control of the customer is transferred or the nature of the customer’s business is materially altered.
Termination of this agreement will not prejudice or affect the rights, remedies and claims of JACK.
9. Intellectual property and use by the customer:
All of the trademarks, patents, copyright, designs (including rights of drawings, calculations, models, samples, descriptions, figures, dimension specifications and the like) or other intellectual property rights (whether or not registered) in respect of the products and projects owned or in respect of which JACK has rights (collectively “intellectual property”) remain JACK’s property notwithstanding the sale/supply of the products/projects to the customer. This clause 9 survives termination of this agreement.
10.1 JACK warrants that:
(a) The project delivered will conform to the quote;
(b) Subject to clause 10.2, the products will be free from material defects at the time of installation and for the period contained in the manufacturer’s warranty, (“warranty period”);
(c) Subject to the terms of these terms and conditions, the warranty provided in this clause 10 is instead of, and JACK disclaims, all other warranties expressed or implied including, but not limited to, the implied warranties of merchantability and fitness for a particular purpose.
10.2 Subject to the terms of these terms and conditions, the repair of any defect(s) occurring the warranty period is the absolute limit of JACK’s liability howsoever arising under or in connection with any breach of these warranties provided that the customer gives written notice to JACK within 24 hours of discovery of the defect and provides JACK (or its staff, contractors and agents) with immediate access to undertake such repairs as JACK considers necessary to remedy any defect.
10.3 Any written warranty or guarantee that JACK provides to the customer will also form part of these terms and conditions.
11. Limitation of liability
11.1 The warranties provided in clause 10 replace all other representations or warranties (statutory, expressed or implied) and all representations and warranties (excepting those which may not be lawfully excluded) are specifically excluded. The foregoing exclusions and the limitations contained in clauses 11.2 and 11.3 do not apply to rights granted to the customer under the Consumer Guarantees Act 1993, unless the customer is acquiring the services for the purposes of a business in which case the provisions contained in the Consumer Guarantees Act 1993 shall not apply.
11.2 Under no circumstances will any warranty express or implied relating to the products and/or any project extend to or include nor will JACK be liable (whether vicariously or otherwise) under the law of tort, contract or otherwise for any:
(a) Loss or damage not covered by the manufacturer’s warranty;
(b) Loss or damage caused by non adherence to the operating instructions and guidelines;
(c) Loss or damage caused by JACK altering the location due to structural, electrical, safety or other concerns as to the location for the project;
(d) Loss or damage caused by JACK failing to recognise the possible presence of asbestos in any roof cladding, soffit, eaves, gables or interior ceilings;
(e) Loss or damage caused by a force majeure event;
(f) Loss or damage caused by the acts or omissions of any third party;
(g) Loss or damage caused by a contractor and/or supplier carrying out any related work, whether or not JACK had arranged for such related work to be carried out;
(h) Loss or damage caused by having repairs carried out to any project by any person other than JACK;
(i) Loss or damage occurring at the expiry of the warranty period;
(j) Loss or damage caused by a services interruption;
(k) Loss or damage arising from the termination of these terms and conditions; or
(l) Loss of profits or savings or any indirect, special, incidental or consequential loss or damage, however caused, arising out of or in connection with the performance or non-performance of JACK, any project, product and/or these terms and conditions.
11.3 Notwithstanding any other provision of these terms and conditions and without prejudice to clause 11.2, if for any reason JACK becomes liable for loss or damage that would have otherwise been excluded then its total liability to the customer arising out of any claim for damages for any cause will be limited at JACK’s election to either the monetary amount of the value of that part of the project giving rise to the claim, or the actual damage or loss suffered by the customer, whichever is lesser.
12. The customer shall indemnify JACK, its employees, officers, agents and contractors from and against all claims and loss of any kind whatsoever however caused or arising and without limiting the generality of the foregoing whether caused or arising as a result of the negligence of JACK or otherwise, brought by any person in connection with any matter, act, omission, or error by JACK in connection with the goods and/or services.
13. Construction contracts act 2002
13.1 The provision of the Construction Contracts Act 2002 apply to these terms and conditions except if it is a “residential construction contract” as defined by that Act, in which case any limitations imposed by the Act are applicable to these terms and conditions.
14.1 If a dispute arises, the parties agree to settle the dispute by mediation or in accordance with the Construction Contracts Act 2002 before resorting to litigation or arbitration.
15. Force majeure
15.1 Despite any other provision of these terms and conditions, JACK will not be liable for any failure or delay in complying with any obligation imposed on it under these terms and conditions, if the failure or delay arises from, or in connection with, a force majeure event.
16. Miscellaneous provisions
16.1 These terms and conditions are governed by and construed according to the laws of New Zealand and is subject to the non exclusive jurisdiction of the courts of New Zealand.
16.2 The illegality, invalidity or unenforceability of a provision of these terms and conditions under any law shall not affect the legality, validity or enforceability of that provision under another law or the legality, validity or enforceability of any other provision of these terms and conditions.
16.3 No party will assign its rights under these terms and conditions without the prior written consent of the other party.
16.4 These terms and conditions contain all terms of the arrangement between the parties and supersedes and extinguishes all prior agreements, discussions, representations and arrangements between the parties about the matters covered in these terms and conditions.
16.5 Failure or omission by a party at any time to enforce or require strict or timely compliance with any provision of these terms and conditions will not affect or impair that provision in any way or the rights of that party to benefit from the remedies it may have as to any breach of any provision.
16.6 These terms and conditions are deemed to be executed by a party if that party has executed any of the following formats, an original, a copy, a facsimile copy or PDF copy; a photocopy of any of the above; and provided that every party has executed any permitted format, the executed formats will together constitute a binding and enforceable instrument.
17. Definitions and interpretation:
In these terms and conditions, unless the context requires otherwise:
“customer” means the customer as described on the quote, any person acting on behalf of and with the authority of the customer, or any person who purchases products and/or services from JACK; “force majeure event” means an event or occurrence which is beyond JACK’s reasonable control; “ JACK” means JACK Property Maintenance Limited or agents, employees or subcontractors of JACK Property Maintenance Limited as appropriate; “location” means the site at which the project is carried out for the customer; “manufacturer’s warranty” means the warranty supplied from time to time by the manufacturer of the products as at the date of the acceptance of the quote; “operating instructions and guidelines” means the operating instructions and guidelines for the products and/or services supplied from time to time by the manufacturer of the products as at the date of the acceptance of the quote; “PPSA” means the Personal Property Securities Act 1999; “price” means the amount specified within each quote (subject to any variation) representing the cost for the project; “products” means the products supplied as part of a project and include the goods as more particularly described in the quote; “project” means the supply of products and/or services to a customer as per the quote; “quote” means the details outlining the provision of a project, fixed price guarantee and any estimate of costs, any charge up work and/or supply services but do not include any related work that may be required or recommended to the customer; “related work” means any additional building, carpentry, electrical, painting, plastering, plumbing or other work or other trades that the customer requires, which are not to be carried out by JACK; “services” means those product installation services, trades, work, building and project management services provided by JACK to the customer and includes the services as more particularly described in the quote; “services delay charge” means the services delay charge (if any) set out in the quote; “services interruption” means an interruption to the project which is outside of the reasonable control of JACK, “terms and conditions” means these terms and conditions.