Fix'd Property Maintenance Limited – Terms & Conditions of Trade

1.       Definitions

1.1      “Fix’d” means Fix'd Property Maintenance Limited, its successors and assigns or any person acting on behalf of and with the authority of Fix'd Property Maintenance Limited.

1.2      “Client” means the person/s or any person acting on behalf of and with the authority of the Client requesting Fix’d to provide the Works as specified in any proposal, quotation, order, invoice or other documentation, and:

(a)  if there is more than one Client, is a reference to each Client jointly and severally; and

(b)  if the Client is a part of a Trust, shall be bound in their capacity as a trustee; and

(c)   includes the Client’s executors, administrators, successors and permitted assigns.

1.3      “Works” means all Works or Materials supplied by Fix’d to the Client at the Client’s request from time to time (where the context so permits the terms ‘Works’ or ‘Materials’ shall be interchangeable for the other).

1.4      “Price” means the Price payable (plus any Goods and Services Tax (“GST”) where applicable) for the Works as agreed between Fix’d and the Client in accordance with clause 6 below.

 

2.       Acceptance

2.1      The Client is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Client places an order for or accepts delivery of any Works.

2.2      These terms and conditions may only be amended with the consent of both parties in writing and shall prevail to the extent of any inconsistency with any other document or contract between the Client and Fix’d.

2.3      Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 226 of the Contract and Commercial Law Act 2017 or any other applicable provisions of that Act or any Regulations referred to in that Act.

2.4      If Fix’d has been requested by the Client to prepare a quotation that involves multiple site visits or third party involvement, the all costs for such visits and third party costs involved will be charged to the Client irrespective of whether or not the Works go ahead.

2.5      In the event that Fix’d is required to provide the Works urgently, that may require Fix’d’s staff to work outside normal business hours (including but not limited to working through lunch breaks, weekends and/or Public Holidays) then Fix’d reserves the right to charge the Client additional labour costs (penalty rates will apply) and travel costs if outside the greater Christchurch area, unless otherwise agreed between Fix’d and the Client.

2.6      The Client acknowledges and accepts that the supply of Materials for accepted orders may be subject to availability and if, for any reason, Materials are not or cease to be available, Fix’d reserves the right to substitute comparable Materials (or components of the Materials) and vary the Price as per clause 6.2. In all such cases Fix’d will notify the Client in advance of any such substitution, and also reserves the right to place the Client’s order and/or Works on hold, as per clause 7.2 until such time as Fix’d and the Client agree to such changes.

2.7      The Client agrees that they shall upon request from Fix’d provide evidence that:

(a)  they are the owner of the land and premises upon which the Works are be undertaken; or

(b)  where they are a tenant, that they have the consent of the owner for the Materials to be installed on the land and premises upon which the Works are be undertaken; or

(c)   if they are the owner’s agent, that they have the authority to request the Works to be provided; and

(d)  failure of the Client shall indemnify Fix’d of any responsibility or liability for any costs, losses or damages as a result of the Client’s failure to comply with this clause.

2.8      Fix’d shall not be held liable for the quality of the Works or surface finishes, if the Client does not follow Fix’d’s recommendations or deviates from such recommendations as to a number of coats to be applied or a specific course of action for a particular situation based on Fix’d’s knowledge and industry experience.

 

3.       Errors and Omissions

3.1      The Client acknowledges and accepts that Fix’d shall, without prejudice, accept no liability in respect of any alleged or actual error(s) and/or omission(s):

(a)  resulting from an inadvertent mistake made by Fix’d in the formation and/or administration of this contract; and/or

(b)  contained in/omitted from any literature (hard copy and/or electronic) supplied by Fix’d in respect of the Works.

3.2      In the event such an error and/or omission occurs in accordance with clause 3.1, and is not attributable to the negligence and/or wilful misconduct of Fix’d; the Client shall not be entitled to treat this contract as repudiated nor render it invalid.

 

4.       Change in Control

4.1      The Client shall give Fix’d not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client and/or any other change in the Client’s details (including but not limited to, changes in the Client’s name, address, contact phone or fax number/s, change of trustees or business practice). The Client shall be liable for any loss incurred by Fix’d as a result of the Client’s failure to comply with this clause.

 

5.       Authorised Representatives

5.1      Unless otherwise limited as per clause 5.2 the Client agrees that should the Client introduce any third party to Fix’d as the Client’s duly authorised representative, that once introduced that person shall have the full authority of the Client to order any Materials or Works on the Client’s behalf and/or to request any variation to the Works on the Client’s behalf (such authority to continue until all requested Works have been completed or the Client otherwise notifies Fix’d in writing that said person is no longer the Client’s duly authorised representative).

5.2      In the event that the Client’s duly authorised representative as per clause 5.1 is to have only limited authority to act on the Client’s behalf then the Client must specifically and clearly advise Fix’d in writing of the parameters of the limited authority granted to their representative.

5.3      The Client specifically acknowledges and accepts that they will be solely liable to Fix’d for all additional costs incurred by Fix’d (including Fix’d’s profit margin) in providing any Materials, Works or variation/s requested by the Client’s duly authorised representative (subject always to the limitations imposed under clause 5.2 (if any)).

 

6.       Price and Payment

6.1      At Fix’d’s sole discretion the Price shall be either:

(a)  as indicated on invoices provided by Fix’d to the Client in respect of Works performed or Materials supplied; or

(b)  Fix’d’s quoted Price (subject to clause 6.2) which shall be binding upon Fix’d provided that the Client shall accept Fix’d’s quotation in writing within thirty (30) days.

6.2      Fix’d reserves the right to change the Price:

(a)  if a variation to the Materials which are to be supplied is requested; or

(b)  if a variation to the Works originally scheduled (including any applicable plans or specifications) is requested; or

(c)   where additional Works are required due to the discovery of hidden or unidentifiable difficulties (poor weather conditions, site specific defects found on closer inspection, any disassembly work required, limitations to accessing the site, availability of machinery including crane, hoist or other lifting equipment, safety considerations, prerequisite work by a third party not being completed, previous work being non code compliant, presence of rot, asbestos, or water, hard rock or other barriers below the surface, latent soil conditions, iron reinforcing rods in concrete, or hidden pipes and wiring in walls etc.) which are only discovered on commencement of the Works; or

(d)  in the event of increases to Fix’d in the cost of labour or materials (including the increase in overseas transactions as a consequence of variations in foreign currency rates of exchange and/or international freight and insurance charges) which are beyond Fix’d’s control.

6.3      Variations will be charged for on the basis of Fix’d’s quotation, and will be detailed in writing, and shown as variations on Fix’d’s invoice. The Client shall be required to respond to any variation submitted by Fix’d within ten (10) working days. Failure to do so will entitle Fix’d to add the cost of the variation to the Price. Payment for all variations must be made in full at the time of their completion.

6.4      At Fix’d’s sole discretion a non-refundable deposit may be required.

6.5      Time for payment for the Works being of the essence, the Price will be payable by the Client on the date/s determined by Fix’d, which may be:

(a)  on completion of the Works; or

(b)  before commencement of the Works; or

(c)   at time of ordering for bespoke items; or

(d)  by way of progress payments in accordance with Fix’d’s specified progress payment schedule. Such progress payment claims may include the reasonable value of authorised variations and the value of any Materials delivered to the worksite but not yet installed;

(e)  the date specified on any invoice or other form as being the date for payment; or

(f)   failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Client by Fix’d.

6.6      Payment may be made by cash, electronic/on-line banking, credit card (a surcharge may apply per transaction), or by any other method as agreed to between the Client and Fix’d.

6.7      The Client shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Client by Fix’d nor to withhold payment of any invoice because part of that invoice is in dispute.

6.8      Unless otherwise stated the Price does not include GST. In addition to the Price, the Client must pay to Fix’d an amount equal to any GST Fix’d must pay for any supply by Fix’d under this or any other contract for the sale of the Materials. The Client must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Client pays the Price. In addition, the Client 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.

6.9      The Client acknowledges and accepts that where Fix’d is required to collect items for the Works ordered by the Client from a third party or other location, then all time and costs involved in such collection shall be chargeable to the Client.

6.10    The Client accepts that where the work area and delivery site are more than twenty-five metres (25m) apart, then Fix’d may charge an additional cost for relocating the Materials from the delivery site to the work area.

 

7.       Provision of the Works

7.1      Subject to clause 7.2 it is Fix’d’s responsibility to ensure that the Works start as soon as it is reasonably possible.

7.2      The Works’ commencement date will be put back and the completion date extended by whatever time is reasonable in the event that Fix’d claims an extension of time (by giving the Client written notice) where completion is delayed by an event beyond Fix’d’s control, including but not limited to any failure by the Client to:

(a)  make a selection; or

(b)  have the site ready for the Works; or

(c)   notify Fix’d that the site is ready.

7.3      At Fix’d’s sole discretion, the cost of delivery is included in the Price.

7.4      Fix’d may deliver the Works by separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.

7.5      Any time specified by Fix’d for delivery of the Works is an estimate only and Fix’d will not be liable for any loss or damage incurred by the Client as a result of delivery being late. However both parties agree that they shall make every endeavour to enable the Works to be supplied at the time and place as was arranged between both parties. In the event that Fix’d is unable to supply the Works as agreed solely due to any action or inaction of the Client, then Fix’d shall be entitled to charge a reasonable fee for re-supplying the Works at a later time and date, and/or for storage of the Materials.

7.6      Where the Client requests a postponement to the agreed start date, Fix’d required a minimum of twenty-four (24) hours’ notice of such postponement. Failure by the Client to provide such notice will allow Fix’d to charge a cancellation fee.

7.7      Where the Works are commenced and then a significant dealy is caused by the Client, then payment for the Works must be made in full if not already done so and Fix’d shall reserve the right to requote for the remainder of the Works outstanding.

 

8.       Risk

8.1      If Fix’d retains ownership of the Materials under clause 15 then where Fix’d is supplying Materials only, all risk for the Materials shall immediately pass to the Client on delivery and the Client must insure the Materials on or before delivery. Delivery of the Materials shall be deemed to have taken place immediately at the time that the Materials are delivered by Fix’d or Fix’d’s nominated carrier to the Client’s nominated delivery address (even if the Client is not present at the address).

8.2      Notwithstanding the provisions of clause 8.1 if the Client specifically requests Fix’d to leave Materials outside Fix’d’s premises for collection or to deliver the Materials to an unattended location then such materials shall always be left at sole risk of the Client and it shall be the Client’s responsibility to ensure the Materials are insured adequately or at all. In the event that such Materials are lost, damaged or destroyed then replacement of the Materials shall be at the Client’s expense.

8.3      Where Fix’d has effected delivery all risk passes to the Client as per clause 8.1 and the Client claims the Materials have been stolen it shall be the Client’s responsibility to notify the police and forward evidence to Fix’d, this shall not excuse the Client from fulfilling their financial obligations under this contract.

8.4      The Client accepts that where earthmoving or excavation work has been provided by a third party engaged by the Client and such work is found to be defective or not up to standard, then Fix’d reserves the right to charge a variation to remedy such work.

8.5      Where the Client has supplied materials for Fix’d to complete the Works, the Client acknowledges and accepts responsibility for the suitability of purpose, quality and any faults inherent in the materials. Fix’d shall not be responsible for any defects in the Works, any loss or damage to the materials (or any part thereof), howsoever arising from the use of materials supplied by the Client. Furthermore, the Client accepts that Fix’d offers no warranty pertaining to those materials.

8.6      Unless otherwise stated, only suitable new Materials or the Client’s reclaimed timber will be used.

8.7      The Client shall be responsible for the removal of rubbish or clean up of the building/construction site/s, and the costs associated with this removal of waste.

8.8      The Client acknowledges that Materials supplied may:

(a)  fade or change colour over time; and

(b)  expand, contract or distort as a result of exposure to heat, cold, weather; and

(c)   mark or stain if exposed to certain substances; and

(d)  be damaged or disfigured by impact or scratching.

8.9      Timber is a natural product and as such may exhibit variations in texture, shade, colour, surface, finish, markings, veining, and contain natural fissures, occlusions, and indentations. Whilst Fix’d will make every effort to match sales samples to the finished Materials Fix’d accepts no liability whatsoever where such samples differ to the finished Materials supplied.

8.10    The Client acknowledges that variations of colour, shade and grain are inherent in all kiln fired products and natural stone. While every effort will be taken by Fix’d to match colour, shade or grain of product, Fix’d shall not be liable for any loss, damages or costs howsoever arising resulting from any variation in colour, shading or grain between batches of product or sale samples and the final product supplied.

8.11    Fix’d gives no guarantee (expressed or implied) against crazing, cracking, chipping or scratching that may occur that is beyond Fix’d’s control due to the nature of the product at the time of installation, therefore it is recommended that the Client allows for extra product for such breakages.

8.12    Timber is a hydroscopic material subject to expansion and contraction; therefore Fix’d will accept no responsibility for gaps that may appear during prolonged dry periods.

8.13    The Client acknowledges that variations of colour and texture are inherent in concrete. Fix’d shall not be liable for any loss, damages or costs howsoever arising resulting from any variation of the colour or texture between different batches of product.

8.14    Fix’d gives no guarantee (expressed or implied) as to the length of time the curing process will take and/or against cracking of concrete that may occur naturally in the Works such as:

(a)  hairline cracking of paving and grout; or

(b)  damage caused by contact with chemicals, solvents, oils or any other substances; or

(c)   the affects by elements such as heat exposure or wet weather conditions that prolong the curing process.

8.15    The Client acknowledges and agrees that it is their responsibility to organise and be liable for all costs associated with protecting the concrete and shall take all reasonable precautions to protect against destruction or damage by way of vandalism. In the event that the concrete is destroyed or damaged due to vandalism then the cost of repair or replacement shall be borne by the Client.

8.16    Fix’d shall not be liable for any defect in the Works if the Client does not follow Fix’d’s recommendations, including:

(a)  to water the concrete periodically to limit the risk of possible cracking due to weather conditions;

(b)  that no foot traffic and/or any vehicles on the concrete for a minimum of forty-eight (48) hours but preferably seven (7) days;

(c)   that no heavy furniture is to be placed on the concrete area for a minimum of twenty-four (24) hours.

8.17    Where Fix’d gives advice or recommendations to the Client, or the Client’s agent, regarding the suitability of the worksite for the laying of concrete slabs, foundations or similar Works and such advice or recommendations are not acted upon then Fix’d shall require the Client or their agent to authorise commencement of the Works in writing. Fix’d shall not be liable in any way whatsoever for any damages or losses that occur after any subsequent commencement of the Works.

8.18    The Client shall supply an area suitable for washing out Fix’d’s equipment and for depositing all unused concrete and slurry.

8.19    The Client acknowledges that the presence of plant or tree root growth and/or other blockages may indicate damaged pipe work and therefore where Fix’d is requested to merely clear such blockages, Fix’d can offer no guarantee against reoccurrence or further damage. In the event of collapse during the pipe clearing process, Fix’d will immediately advise the Client of the same and shall provide the Client with an estimate for the full repair of the damaged pipe work.

8.20    The Client acknowledges and agree that where Fix’d has performed temporary repairs that:

(a)  Fix’d offers no guarantee against the reoccurrence of the initial fault, or any further damage caused; and

(b)  Fix’d will immediately advise the Client of the fault and shall provide the Client with an estimate for the full repair required.

8.21    The Client acknowledges that Fix’d is only responsible for parts that are replaced by Fix’d and does not at any stage accept any liability in respect of previous services and/or goods supplied by any other third party that subsequently fail and found to be the source of the failure, the Client agrees to indemnify Fix’d against any loss or damage to the Materials, or caused by the Materials, or any part thereof howsoever arising.

8.22    The Client warrants that any structures to which the Materials are to be affixed are able to withstand the installation of the Materials and that any plumbing connections (including, but not limited to, meter boxes, pipes, couplings and valves) are of suitable capacity to handle the Materials once installed. If for any reason (including the discovery of asbestos, defective or unsafe plumbing or dangerous access to crawl spaces or the roof) that Fix’d, or employees of Fix’d, reasonably form the opinion that the Client’s premises is not safe for the installation of Materials to proceed then Fix’d shall be entitled to delay installation of the Materials (in accordance with the provisions of clause 7.2 above) until Fix’d is satisfied that it is safe for the installation to proceed.

8.23    The Client accepts and acknowledges that shrubs, plants, natural turf and any other flora, foliage or vegetation supplied by Fix’d are organic in nature and require care and maintenance. Fix’d reserves the right to not accept liability for the plants where such plants may have become affected or died due to the Client’s failure to properly maintain the plants and/or to follow any instructions or guidelines provided by Fix’d in regard to the proper care of the plants (including but not limited to, adequate watering of the plants).

8.24    Fix’d shall not be liable:

(a)  for inferior existing paintwork where Fix’d’s paint has bonded to the existing paintwork and weakened the previous paint causing any kind of flake, crack or blemish;

(b)  for the quality of the Works if the Client does not follow Fix’d’s recommendations as to the number of coats of paint required to obtain the final finish if the Client chooses to accept a reduced Price based on fewer coats of paint;

(c)    whatsoever for any loss or damage to the Works (including, but not limited to, painted surfaces) that is caused by any other tradesmen; or

(d)  for any loss or damage caused in accessing the work area beyond reasonable control of Fix’d (including, without limitation, to ceiling tiles and panels, face brickwork and rendered masonry services) which Fix’d may have to break into or disturb in performance of the Works), unless due to the negligence of Fix’d.

8.25    The Client accepts and acknowledges that Fix’d accepts no liability for any subsequent loss or damage (including, but not limited to, internal water damage) to the Client’s property which may occur during the cleaning process where such loss or damage is due to pre-existing faults or leaks.

8.26    Fix’d shall endeavour to match old for new however the Client accepts and acknowledges that colours may not match due to differences in colour matching/mixing technologies, fading and/or weathering of the sample provided to colour match from. Therefore, Fix’d shall not be held responsible or liable for any differences that may result.

 

9.       Dimensions, Plans and Specifications

9.1      All customary building industry tolerances shall apply to the dimensions and measurements of the Goods unless Fix’d and the Client agree otherwise in writing.

9.2      Fix’d shall be entitled to rely on the accuracy of any plans, specifications and other information provided by the Client. The Client acknowledges and agrees that in the event that any of this information provided by the Client is inaccurate, Fix’d accepts no responsibility for any loss, damages, or costs however resulting from these inaccurate plans, specifications or other information.

9.3      If the giving of an estimate or quotation for the supply of Goods involves Fix’d estimating measurements and quantities, it shall be the responsibility of the Client to verify the accuracy of Fix’d’s estimated measurements and quantities, before the Client places an order based on such estimate or accepts such quotation.

9.4      Should the Client require any changes to Fix’d’s estimated measurements and quantities, the Client shall request such changes in writing, in the case of an estimate before placing an order based on that estimate and in the case of a quotation before acceptance of that quotation.

9.5      Where contaminated soil is to be removed from the site, then any costs over and above the disposal rates for non-contaminated soil incurred by Fix’d shall be passed onto the Client.

 

10.      Client’s Responsibilities

10.1    It is the intention of Fix’d and agreed by the Client that it is the responsibility of the Client to provide and have erected scaffolding to enable the Works to be undertaken (where in Fix’d’s opinion it is deemed necessary). It is also agreed that all scaffolding erected will comply with industry safety standards and that any person erecting the scaffolding shall be suitably qualified to ensure its safe and proper erection and where necessary shall hold a current certificate of competency and/or be fully licensed.

10.2    Further to clause 10.1, where the Client is providing any heavy equipment, scaffolding, traffic management, where the Client fails to comply with this condition and/or such provision by the Client is not code compliant or suitable, then Fix’d will charge to remedy the situation and where additional charges are incurred by Fix’d in doing this, then Fix’d shall on charge these costs as a variation.

10.3    The Client agrees to remove any furniture, furnishings or personal goods from the vicinity of the Works and agrees that Fix’d shall not be liable for any damage caused to those items through the Client’s failure to comply with this clause.

10.4    The Client shall supply access to any utilities required by Fix’d at no cost, however, should the Client be unable to provide these utilities, any costs incurred by Fix’d providing these shall be charged to the Client.

 

11.      Surplus Materials

11.1    Unless otherwise stated elsewhere in this contract:

(a)  demolished Materials remain the Client’s property; and

(b)  Materials which Fix’d brings to the site which are surplus remain the property of Fix’d; and

(c)   Fix’d will dispose of any specified property as requested by the Client with any associated costs being at the expense of the Client.

 

12.      Access

12.1    The Client shall ensure that Fix’d has clear and free access to the site (or rooms where applicable) at all times to enable them to undertake the Works. Fix’d shall not be liable for any loss or damage to the site (including, without limitation, damage to pathways, driveways and concreted or paved or grassed areas) unless due to the negligence of Fix’d.

 

13.      Underground Locations

13.1    Prior to Fix’d commencing any work the Client must advise Fix’d of the precise location of all underground services on the site and clearly mark the same. The underground mains and services the Client must identify include, but are not limited to, electrical services, gas services, sewer services, pumping services, sewer connections, sewer sludge mains, water mains, irrigation pipes, telephone cables, fibre optic cables, oil pumping mains, and any other services that may be on site.

13.2    Whilst Fix’d will take all care to avoid damage to any underground services the Client agrees to indemnify Fix’d in respect of all and any liability claims, loss, damage, costs and fines as a result of damage to services not precisely located and notified as per clause 13.1.

 

14.      Compliance with Laws

14.1    The Client and Fix’d shall comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities that may be applicable to the Works.

14.2    The Client shall obtain (at the expense of the Client) all licenses and approvals that may be required for the Works.

14.3    Fix’d has not and will not at any time assume any obligation as the Client’s agent or otherwise which may be imposed upon the Client from time to time pursuant to the Health & Safety at Work Act 2015 (the “HSW Act”) arising out of the engagement. The parties agree that for the purposes of the HSW Act, Fix’d shall not be the person who controls the place of work in terms of the HSW Act.

 

15.      Title

15.1    Fix’d and the Client agree that ownership of the Materials shall not pass until:

(a)  the Client has paid Fix’d all amounts owing to Fix’d; and

(b)  the Client has met all of its other obligations to Fix’d.

15.2    Receipt by Fix’d 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.

15.3    It is further agreed that:

(a)  until ownership of the Materials passes to the Client in accordance with clause 15.1 that the Client is only a bailee of the Materials and unless the Materials have become fixtures must return the Materials to Fix’d on request.

(b)  the Client holds the benefit of the Client’s insurance of the Materials on trust for Fix’d and must pay to Fix’d the proceeds of any insurance in the event of the Materials being lost, damaged or destroyed.

(c)   the production of these terms and conditions by Fix’d shall be sufficient evidence of Fix’d’s rights to receive the insurance proceeds direct from the insurer without the need for any person dealing with Fix’d to make further enquiries.

(d)  the Client must not sell, dispose, or otherwise part with possession of the Materials other than in the ordinary course of business and for market value. If the Client sells, disposes or parts with possession of the Materials then the Client must hold the proceeds of any such act on trust for Fix’d and must pay or deliver the proceeds to Fix’d on demand.

(e)  the Client should not convert or process the Materials or intermix them with other goods but if the Client does so then the Client holds the resulting product on trust for the benefit of Fix’d and must sell, dispose of or return the resulting product to Fix’d as it so directs.

(f)   unless the Materials have become fixtures the Client irrevocably authorises Fix’d to enter any premises where Fix’d believes the Materials are kept and recover possession of the Materials.

(g)  Fix’d may recover possession of any Materials in transit whether or not delivery has occurred.

(h)  the Client shall not charge or grant an encumbrance over the Materials nor grant nor otherwise give away any interest in the Materials while they remain the property of Fix’d.

(i)   Fix’d may commence proceedings to recover the Price of the Materials sold notwithstanding that ownership of the Materials has not passed to the Client.

 

16.      Personal Property Securities Act 1999 (“PPSA”)

16.1    Upon assenting to these terms and conditions in writing the Client 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 Materials and/or collateral (account) – being a monetary obligation of the Client to Fix’d for Works – that have previously been supplied and that will be supplied in the future by Fix’d to the Client.

16.2    The Client 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 Fix’d may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register;

(b)  indemnify, and upon demand reimburse, Fix’d for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register or releasing any Materials charged thereby;

(c)   not register, or permit to be registered, a financing statement or a financing change statement in relation to the Materials and/or collateral (account) in favour of a third party without the prior written consent of Fix’d; and

(d)  immediately advise Fix’d of any material change in its business practices of selling Materials which would result in a change in the nature of proceeds derived from such sales.

16.3    Fix’d and the Client agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms and conditions.

16.4    The Client waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA.

16.5    Unless otherwise agreed to in writing by Fix’d, the Client waives its right to receive a verification statement in accordance with section 148 of the PPSA.

16.6    The Client shall unconditionally ratify any actions taken by Fix’d under clauses 16.1 to 16.5.

 

17.      Security and Charge

17.1    In consideration of Fix’d agreeing to supply the Works, the Client 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 Client either now or in the future, to secure the performance by the Client of its obligations under these terms and conditions (including, but not limited to, the payment of any money).

17.2    The Client indemnifies Fix’d from and against all Fix’d’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising Fix’d’s rights under this clause.

17.3    The Client irrevocably appoints Fix’d and each director of Fix’d as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 17 including, but not limited to, signing any document on the Client’s behalf.

 

18.      Defects In Materials

18.1    The Client shall inspect the Materials on delivery and shall within twenty-four (24) hours of delivery (time being of the essence) notify Fix’d of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Client shall afford Fix’d an opportunity to inspect the Materials within a reasonable time following delivery if the Client believes the Materials are defective in any way. If the Client shall fail to comply with these provisions the Materials shall be presumed to be free from any defect or damage. For defective Materials, which Fix’d has agreed in writing that the Client is entitled to reject, Fix’d’s liability is limited to either (at Fix’d’s discretion) replacing the Materials or repairing the Materials.

18.2    Materials will not be accepted for return other than in accordance with 18.1 above.

 

19.      Warranties

19.1    The Client acknowledges and agrees that where Fix’d supplies a Client Responsibility Sheet detailing appropriate maintenance and the Client fails to comply with the instructions, then Fix’d shall reserve the right to dismiss any warranty claim.

19.2    Subject to the conditions of warranty set out in clause 19.3 Fix’d warrants that if any defect in any workmanship of Fix’d becomes apparent and is reported to Fix’d within thirty (30) days of the date of delivery (time being of the essence) then Fix’d will either (at Fix’d’s sole discretion) replace or remedy the workmanship.

19.3    The conditions applicable to the warranty given by clause 19.1 are:

(a)  the warranty shall not cover any defect or damage which may be caused or partly caused by or arise through:

(i)    failure on the part of the Client to properly maintain any Materials; or

(ii)   failure on the part of the Client to follow any instructions or guidelines provided by Fix’d as per clause 19.1; or

(iii)   any use of any Materials otherwise than for any application specified on a quote or order form; or

(iv)  the continued use of any Materials after any defect becomes apparent or would have become apparent to a reasonably prudent operator or user; or

(v)   fair wear and tear, any accident or act of God.

(b)  the warranty shall cease and Fix’d shall thereafter in no circumstances be liable under the terms of the warranty if the workmanship is repaired, altered or overhauled without Fix’d’s consent.

(c)   in respect of all claims Fix’d shall not be liable to compensate the Client for any delay in either replacing or remedying the workmanship or in properly assessing the Client’s claim.

19.4    For Materials not manufactured by Fix’d, the warranty shall be the current warranty provided by the manufacturer of the Materials. Fix’d shall not be bound by nor be responsible for any term, condition, representation or warranty other than that which is given by the manufacturer of the Materials.

 

20.      Consumer Guarantees Act 1993

20.1    If the Client is acquiring Materials for the purposes of a trade or business, the Client acknowledges that the provisions of the Consumer Guarantees Act 1993 do not apply to the supply of Materials by Fix’d to the Client.

 

21.      Intellectual Property

21.1    Where Fix’d has designed, drawn, written plans or a schedule of Works, or created any products for the Client, then the copyright in all such designs, drawings, documents, plans, schedules and products shall remain vested in Fix’d, and shall only be used by the Client at Fix’d’s discretion. Under no circumstances may such designs, drawings and documents be used without the express written approval of Fix’d.

21.2    The Client warrants that all designs, specifications or instructions given to Fix’d will not cause Fix’d to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify Fix’d against any action taken by a third party against Fix’d in respect of any such infringement.

21.3    The Client agrees that Fix’d may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings, plans or products which Fix’d has created for the Client.

 

22.      Default and Consequences of Default

22.1    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 Fix’d’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.

22.2    If the Client owes Fix’d any money the Client shall indemnify Fix’d from and against all costs and disbursements incurred by Fix’d in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, Fix’d’s collection agency costs, and bank dishonour fees).

22.3    Further to any other rights or remedies Fix’d may have under this contract, if a Client has made payment to Fix’d, and the transaction is subsequently reversed, the Client shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by Fix’d under this clause 22, where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Client’s obligations under this contract.

22.4    Without prejudice to Fix’d’s other remedies at law Fix’d shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to Fix’d shall, whether or not due for payment, become immediately payable if:

(a)  any money payable to Fix’d becomes overdue, or in Fix’d’s opinion the Client will be unable to make a payment when it falls due;

(b)  the Client has exceeded any applicable credit limit provided by Fix’d;

(c)   the Client becomes insolvent or bankrupt, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or

(d)  a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.

 

23.      Cancellation

23.1    Without prejudice to any other remedies Fix’d may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions Fix’d may suspend or terminate the supply of Works to the Client. Fix’d will not be liable to the Client for any loss or damage the Client suffers because Fix’d has exercised its rights under this clause.

23.2    Fix’d may cancel any contract to which these terms and conditions apply or cancel delivery of Works at any time before the Works are commenced by giving written notice to the Client. On giving such notice Fix’d shall repay to the Client any sums paid in respect of the Price, less any amounts owing by the Client to Fix’d for Works already performed. Fix’d shall not be liable for any loss or damage whatsoever arising from such cancellation.

23.3    In the event that the Client cancels the delivery of Works the Client shall be liable for any and all loss incurred (whether direct or indirect) by Fix’d as a direct result of the cancellation (including, but not limited to, any loss of profits).

23.4    Cancellation of orders for products made to the Client’s specifications, or for non-stocklist items, will definitely not be accepted once production has commenced, or an order has been placed.

 

24.      Privacy Act 1993

24.1    The Client authorises Fix’d or Fix’d’s agent to:

(a)  access, collect, retain and use any information about the Client;

(i)    (including any overdue fines balance information held by the Ministry of Justice) for the purpose of assessing the Client’s creditworthiness; or

(ii)   for the purpose of marketing products and services to the Client.

(b)  disclose information about the Client, whether collected by Fix’d from the Client directly or obtained by Fix’d 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 Client.

24.2    Where the Client is an individual the authorities under clause 24.1 are authorities or consents for the purposes of the Privacy Act 1993.

24.3    The Client shall have the right to request Fix’d for a copy of the information about the Client retained by Fix’d and the right to request Fix’d to correct any incorrect information about the Client held by Fix’d.

 

25.      Construction Contracts Act 2002

25.1    The Client hereby expressly acknowledges that:

(a)  Fix’d has the right to suspend work within five (5) working days of written notice of its intent to do so if a payment claim is served on the Client, and:

(i)    the payment is not paid in full by the due date for payment and no payment schedule has been given by the Client; or

(ii)   a scheduled amount stated in a payment schedule issued by the Client in relation to the payment claim is not paid in full by the due date for its payment; or

(iii)   the Client has not complied with an adjudicator’s notice that the Client must pay an amount to Fix’d by a particular date; and

(iv)  Fix’d has given written notice to the Client of its intention to suspend the carrying out of construction work under the construction contract.

(b)  if Fix’d suspends work, it:

(i)    is not in breach of contract; and

(ii)   is not liable for any loss or damage whatsoever suffered, or alleged to be suffered, by the Client or by any person claiming through the Client; and

(iii)   is entitled to an extension of time to complete the contract; and

(iv)  keeps its rights under the contract including the right to terminate the contract; and may at any time lift the suspension, even if the amount has not been paid or an adjudicator’s determination has not been complied with.

(c)   if Fix’d exercises the right to suspend work, the exercise of that right does not:

(i)    affect any rights that would otherwise have been available to Fix’d under the Contract and Commercial Law Act 2017; or

(ii)   enable the Client to exercise any rights that may otherwise have been available to the Client under that Act as a direct consequence of Fix’d suspending work under this provision.

 

26.      Service of Notices

26.1    Any written notice given under this contract shall be deemed to have been given and received:

(a)  by handing the notice to the other party, in person;

(b)  by leaving it at the address of the other party as stated in this contract;

(c)   by sending it by registered post to the address of the other party as stated in this contract;

(d)  if sent by facsimile transmission to the fax number of the other party as stated in this contract (if any), on receipt of confirmation of the transmission;

(e)  if sent by email to the other party’s last known email address.

26.2    Any notice that is posted shall be deemed to have been served, unless the contrary is shown, at the time when by the ordinary course of post, the notice would have been delivered.

 

27.      Trusts

27.1    If the Client at any time upon or subsequent to entering in to the contract is acting in the capacity of trustee of any trust (“Trust”) then whether or not Fix’d may have notice of the Trust, the Client covenants with Fix’d as follows:

(a)  the contract extends to all rights of indemnity which the Client now or subsequently may have against the Trust and the trust fund;

(b)  the Client has full and complete power and authority under the Trust to enter into the contract and the provisions of the Trust do not purport to exclude or take away the right of indemnity of the Client against the Trust or the trust fund. The Client will not release the right of indemnity or commit any breach of trust or be a party to any other action which might prejudice that right of indemnity.

(c)   the Client will not without consent in writing of Fix’d (Fix’d will not unreasonably withhold consent), cause, permit, or suffer to happen any of the following events;

(i)    the removal, replacement or retirement of the Client as trustee of the Trust;

(ii)   any alteration to or variation of the terms of the Trust;

(iii)   any advancement or distribution of capital of the Trust; or

(iv)  any resettlement of the trust property.

 

28.      General

28.1    The failure by either party to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect that party’s right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.

28.2    These terms and conditions and any contract to which they apply shall be governed by the laws of New Zealand and are subject to the jurisdiction of the Christchurch Courts in New Zealand.

28.3    Fix’d shall be under no liability whatsoever to the Client for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by Fix’d of these terms and conditions (alternatively Fix’d’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Works).

28.4    Fix’d may licence and/or assign all or any part of its rights and/or obligations under this contract without the Client’s consent.

28.5    The Client cannot licence or assign without the written approval of Fix’d.

28.6    Fix’d may elect to subcontract out any part of the Works but shall not be relieved from any liability or obligation under this contract by so doing. Furthermore, the Client agrees and understands that they have no authority to give any instruction to any of Fix’d’s sub-contractors without the authority of Fix’d.

28.7    The Client agrees that Fix’d may amend these terms and conditions by notifying the Client in writing. These changes shall be deemed to take effect from the date on which the Client accepts such changes, or otherwise at such time as the Client makes a further request for Fix’d to provide Works to the Client.

28.8    Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.

28.9    Both parties warrant that they have the power to enter into this contract and have obtained all necessary authorisations to allow them to do so, they are not insolvent and that this contract creates binding and valid legal obligations on them.