The Company means Frame Protection System Limited.
The Customer means the party to which any quotation, confirmation of order, packing list or invoice incorporating these conditions is directed.
Products mean products, goods or services supplied by the Company.
2.1 These conditions apply to offers, quotations and agreements entered into between the Company and the Customer.
2.2 The placement of an order shall be deemed to be acceptance of these terms by the Customer.
2.3 In the event of a conflict between these conditions and the specific terms and conditions of quotation then these conditions override any conditions attached to your order or acceptance.
3.1 Unless otherwise stated therein quotations shall be available for acceptance for a maximum period of 30 days from the date of issue and may be withdrawn by the Company at any time within such period by written or oral notice.
4.1 Time for delivery is given as accurately as possible and the Company will use its best endeavours to meet estimated delivery times. The Customer shall have no right to damages.
4.2 Failure by the Customer to take delivery or to make payment in respect of any one or more instalments of Products delivered hereunder shall entitle the Company to treat the whole contract as rejected by the Customer.
4.3 Delivery shall occur when the Company hands possession and control of the product to the Customer or to a third party for transportation. The Company shall be under no obligation to arrange any such insurance on behalf of the Customer.
4.4 Where a period is named for delivery, any extension to the period must be requested in writing by the Customer at least 5 working days prior to the period, otherwise the Customer shall take delivery within that period.
4.5 If the Company does not consent in writing to the Customer's request for postponement of delivery the Customer shall pay all costs and expenses including a reasonable charge for storage and transportation occasioned thereby and payment for the Product shall become due and payable in accordance with these conditions.
4.6 Any packaging supplied by the Company, unless otherwise expressly agreed, is intended to provide adequate protection throughout normal conditions of travel of usual duration.
5. RISK AND TITLE
5.1 Risk in the Products shall pass to the Customer so that the Customer is responsible for all loss, damage or deterioration in the Products:
(a) if the Company delivers the Products by its own transport at the time when the products are delivered to the point of delivery.
(b) in all other circumstances at the time when the Products or a relevant part thereof leave the Company's premises whether or not the Company arranges transport. Where the Products are delivered by carrier any claims for loss or damage in transit must be made by the Customer against the carrier in accordance with the carrier's conditions.
5.2 Title to the Products or any relevant part thereof shall only pass to the Customer upon the happening of the earlier of the following two events:
(a) the Customer has paid to the Company all sums due under this contract
(b) When the Company serves on the Customer notice in writing that title in the Products or part thereof has passed.
5.3 The Company may recover Products in which title has not passed to the Customer at any time and the Customer hereby licences the Company, its officers, employees and agents to enter upon the premises or any worksite of the Customer for the purpose of either satisfying itself that 5.4 below is being complied with by the customer or of recovering any Products in respect of which title has not passed to the Customer. The Company, its officers, employees and agents shall not be liable for any loss or damage suffered by the Customer or any other person resulting from such entry.
5.4 Until title to the Products has passed to the Customer pursuant to the terms of these conditions, the Customer shall possess the Products as a bailee of the Company on the terms of this contract. If the Company so requires, the Customer shall store the product separately from other goods and shall ensure that they are clearly identifiable as belonging to the Company.
5.5 Without prejudice to the foregoing sub-conditions and in the event that the Customer shall in the course of its business dispose of the products to a customer being a bona fide purchaser without notice of the Company's rights then the Customer shall have a fiduciary duty to the Company to account to the Company for the proceeds (which shall be kept separate and identifiable from the Customer's own monies) but may retain therefrom any excess of such proceeds over the amount outstanding under this or any other prior contract between them.
6. CANCELLATION AND RETURNS
6.1 Cancellation will only be accepted by the Company on condition that all costs and expenses incurred by the Company up to the time of cancellation and all loss of profits and other loss or damage suffered by the Company up to the time of cancellation will be paid forthwith by the Customer to the Company.
7.1 Unless otherwise stated all prices are quoted as exclusive of goods and services tax and all other taxes, levies, foreign exchange rates or duties and are subject to fluctuation in the event of any increase in the cost of labour, in the cost of materials, or overheads and the Company may alter any price quoted on account of such increases during the contract period.
7.2 All quotations are based on the product being constructed or service being performed during ordinary working hours and the Company schedules its work to allow for this. Should it not be possible to complete the product or perform the service within ordinary working hours due to causes beyond the reasonable control of the Company then the Customer shall recompense the Company for any additional costs incurred.
7.3 In the event of any alteration in design or specification being requested by the Customer and agreed to by the Company, then the Company shall be entitled to make an adjustment to the contract price corresponding to such alteration.
7.4 Prices for hourly rates, call out fees and vehicle costs will be in negotiation with the customer and the company.
8. TERMS OF PAYMENT
8.1 Unless the Company expressly agrees to payment being made in accordance with clause 8.2 all work done by the Company for the Customer shall be on a cash basis at the time such work is performed. All payments shall be made without deduction or setoff of any kind.
8.2 Where the Company agrees to work not being on a cash basis [see 8.1] then payment by the Customer shall be either:
(a) By written negotiation of terms with the Company
(b) No later than the 20th day of the month following the month in which the Products were dispatched/installed or would have been despatched save for postponement otherwise that due to default on the part of the Company. The Company shall be entitled to submit its invoice on the same date as its delivery advice note or at any time thereafter save that where delivery has been postponed at the request of or by the default of the Customer then the Company may submit its invoice at any time after the Products are ready for delivery or would have been in the ordinary course but for the request or default as aforesaid.
(c) Where the Company and the Customer agree to a schedule of payments over the course of the contract then the Company will invoice the Customer in accordance with this schedule.
8.3 No disputes arising under the contract or delays beyond the reasonable control of the Company shall interfere with prompt payment in full by the customer.
8.4 In the event of default in payment by the Customer:
(a) the Company shall be entitled without prejudice to any other right or remedy to suspend all further deliveries or work in hand on any contract or contracts between the Company and the Customer without notice and to charge interest on any amount outstanding at the rate of 2.5% per annum above the overdraft rate charged by the Company's bankers in force at the time when payment was due.
(b) the Customer will also be liable for payment of all legal costs incurred by the Company in obtaining recovery of all monies due.
(c) all payments by the Customer shall be applied first in reduction of interest and legal costs and then in reduction of all other outstanding amounts.
9.1 If the Customer shall become bankrupt or is unable to pay its debts as they fall due or compounds with creditors or in the event of a resolution being passed or proceedings commenced for the winding up or liquidation of the Customer (other than for a voluntary winding up for the purpose of reconstruction or amalgamation approved in advance by the Company) or if a receiver or manager is appointed of all or any part of its assets or undertaking of the Customer, the Company shall be entitled to cancel the contract in whole or in part by notice in writing without prejudice to any right or remedy accrued or accruing to the Company and any money outstanding from the Customer to the Company shall become immediately due and owing.
10. DIMENSIONS AND COMPONENTS
10.1 The Company reserves the right to alter or change specifications of the Products supplied within reasonable limits having regard to the nature and function of the Products. Products supplied by the Company are to be treated as meeting acceptable specification, unless the Customer specifically states in writing that they require product meeting other specifications, in which case the Company will only warrant defective product.
10.2 The Company reserves the right to alter components in the construction of its products and warrants that such alternatives will be of equivalent or better quality to those offered at the time of quotation. Components specified by the Company are to be treated as indicative only unless the Customer specifically states in writing that particular components are required.
11. LOSS, SHORTAGE AND DEFECTS APPARENT ON INSPECTION
11.1 Subject to clause 13 the Customer shall have no claim for loss, shortage or defects apparent on visual inspection unless:
(a) the Customer inspects the Products on the first working day following their arrival at its premises or other agreed destination; and
(b) a written complaint specifying the loss, shortage or defect is made to the Company within three days or such shorter period as the carrier's conditions may require (if applicable).
(c) the Company is given an opportunity to inspect the Products and investigate any complaint before any use of, alteration to or interference with the Products.
11.2 If a complaint is not made to the Company as provided in clause 11.1 the Products shall be deemed to be in all respects in accordance with the contract and the Customer shall be bound to pay for the same accordingly.
11.3 Defects in quality or specification of any component or any installment delivery shall not be grounds for cancellation of the remainder of the contract.
12.0 DEFECTS NOT APPARENT ON INITIAL INSPECTION
12.1 Subject to clause 13, the Customer shall have no claim in respect of defects not apparent on the visual inspection at the time of delivery envisaged by clause 11 above unless:
(a) a written complaint is sent to the Company as soon as reasonably practicable after the defect is discovered and no use is made of the Products thereafter and no alteration made thereto or interference made therewith before the Company is given an opportunity to inspect the Products in accordance with this condition: and
(b) the complaint is sent within 90 days of the date of delivery of the Products, or, in the case of an item not manufactured by the Company, within the guarantee period specified by the manufacturer of such item.
12.2 The Customer shall not be entitled to any claim in respect of any repairs or alterations undertaken by the Customer without the prior specific written consent of the Company nor in respect of any defect arising by reason of fair wear and tear or damage due to misuse.
12.3 The Company shall not be liable for loss or damage suffered by reason of use of the products after the Customer becomes aware of a defect or after circumstances which should have reasonably have indicated the existence to the Customer of a defect.
12.4 The Company may, within 15 days of receiving such a written complaint, inspect the Products and the Customer, if so required by the Company, shall take all steps necessary to enable the Company to do so.
13.1 Where the Customer makes a complaint to the Company in accordance with either clauses 11 or 12, then, if it is established that the Products in respect of which the claim is made are faulty or defective, the Company will, at a mediated cost, either repair or replace the faulty or defective Products or parts thereof provided that the Products have been used in accordance with the Company or other manufacturer's instructions and maintenance and other operating procedures laid down in such instructions have been complied with.
13.2 The Company's obligations shall in all cases be limited to repair or replacement of defective or faulty Products as described in clause 13.1 above and the Company shall not be liable for any losses, damages, costs or expenses which may be suffered by the Customer or by any other person.
13.3 Under no circumstances whatsoever shall the Company be liable whether in contract, tort (including negligence) or otherwise for any claims arising by reason of death or personal injury or for consequential loss (including removal or rectification work required in connection with installed or repaired or substitute Products) loss of profits, damage to property, wasted expenditure or cost of mitigation.
13.4 In the case of Products or components not manufactured by the Company, the Company gives no assurance whatsoever that the sale or use of the Products will not infringe patent, copyright or other industrial property rights of any other person, firm or company.
13.5 The Customer acknowledges that all goods and services are purchased for the purpose of business and accordingly the provisions of the Consumer Guarantees Act 1993 do not apply to the supply of goods and services from the Company to the Customer.
14. DESIGN AND ADVISORY SERVICE
14.1 Any advice or recommendations that the Company may provide in respect of the Products or their use is part of the Company's sales service and, while every effort is made to ensure such advice or recommendations is accurate, the Company shall not be liable for any loss, damage or claims arising therefrom.
15. CONFIDENTIAL INFORMATION AND INDUSTRIAL PROPERTY RIGHTS
15.1 All drawings, documents, confidential records, computer software and other information supplied by the Company are supplied on the express understanding that copyright is reserved to the Company and that the Customer will not, without the written consent of the Company, give away, loan, exhibit, or sell such drawings, documents, confidential records, computer software or other information or extracts therefrom or use them in any way except in connection with the products in respect of which they are issued.
15.2 All claims for alleged infringement in respect of patents, trademarks, registered design or copyright received by the customer must be notified immediately to the Company so that the Company can be kept fully informed of the conduct of such claims.
16. CUSTOMER'S DRAWINGS
16.1 The Customer shall be solely responsible for ensuring that all drawings, information, advice and recommendations given to the Company either directly or indirectly by the Customer or by the Customer's agents, servants, consultants or advisers are accurate, correct and suitable. Examination or consideration by the Company of such drawings, information, advice or recommendations shall in no way limit the Customer's responsibility hereunder unless the Company specifically agrees in writing to accept responsibility.
16.2 The Customer shall indemnify the Company from and against all actions, claims, costs and proceedings which arise due to the manufacture of Products to the drawings or specifications of the Customer where such drawings or specifications are at fault or where it is alleged that they involve an infringement of a patent, copyright, registered design, design copyright or other exclusive right.
17. DATA AND TECHNICAL INFORMATION
17.1 The information contained in the advertising, sales and technical literature issued by the Company may be relied upon to be accurate only in the exact circumstances in which it is expressed, otherwise any illustrations, performance details, examples of installations, methods of assembly and all other technical data in such literature are based on experience and upon trials under test conditions and are provided for general guidance only. No such data or information shall form part of the contract unless specifically incorporated therein by the Company.
18. FORCE MAJEURE
18.1 Neither party shall be under any liability for any delay loss or damage caused wholly or in part by act of God, governmental restriction, condition or control or by reason of any act done or not done pursuant to a trade dispute whether such dispute involves its employees or not or by reason of any other act, matter or thing beyond its reasonable control including failure by the other party to carry out the provisions of these conditions.
19.1 Any tools which the Company may supply in connection with any order, notwithstanding any charges the Company may make for them, shall be and remain the Company's property and in the Company's possession and control. If for two consecutive years no orders are received from the Customer for Products to be made with such tools the Company may make such use thereof as it desires or otherwise dispose of them without liability to the Customer.
20.1 The contract shall be governed and interpreted exclusively according to the law of New Zealand and shall be subject only to the jurisdiction of the New Zealand courts to which the parties hereto do agree to submit.