1.      DEFINITIONS AND INTERPRETATION

(a)      Agreement: Means the terms and conditions contained herein, together with any quote, estimate, order, invoice or other document or amendments expressed to be supplemental to this Agreement.

(b)      Services: Means the Services described with any quotation or invoice.

(c)    Goods: Means any products, fabricated items, materials, equipment, or other Goods supplied by the Company to the Client, whether separately or together with services.

(d)      Client: Shall mean the Client, any person acting on behalf of and with the authority of the Client or any person purchasing products and Services from ‘Fab Direct Ltd’.

(e)      Company: Means Fab Direct Ltd and includes its successors and assigns.

(f)       GST: All amounts payable pursuant to any quote or estimate are plus GST, if any.

2.      QUOTATIONS AND ESTIMATES

(a)      The Company may provide a quoted price for the Goods and/or Services to be supplied. Quoted prices are in New Zealand dollars and exclusive of GST. Quotes are only valid for the time described on the quote.

(b)      If no quote has been provided to the Client, then the Company will provide the Goods and/or Services on a charge-out basis.

(c)       The Company may also provide an estimate for the work to be completed.

(d)      All prices are subject to alteration without notice until a quote is accepted by the Client.  

3.      PAYMENT

(a)    Unless otherwise agreed in writing, payment for all Goods and Services supplied by the Company is due on the 20th day of the month following the date of invoice.

(b)    The Company may suspend the supply of Goods or Services immediately where any amount owed by the Client is overdue.

(c)     The Company shall not be liable for any loss, delay, or cost arising from such suspension.

(d)    The Client agrees to pay all amounts owing in full and without deduction, set off, or counterclaim.

(e)    The Client agrees and is liable to pay:

                                    i.            all deposits, progress payments, and other amounts specified in any quote, estimate, or invoice; and

                                    ii.           all costs reasonably incurred by the Company in supplying the Goods and Services, where such costs are not already specified in a quote, estimate, or invoice.

(f)        The Company may require a deposit or progress payments before commencing or continuing work.

(g)       If payment is made by instalments, the failure to pay any instalment by the due date will constitute default for the entire balance owing.

(h)       The Company may allocate payments received from the Client to any invoice or account as the Company determines.

(i)         Interest may be charged on overdue amounts at the rate of 2.50% per month compounding monthly from the due date until payment is made in full.

(j)        The Client will be liable for all costs incurred by the Company in recovering overdue amounts, including debt collection fees, legal costs on a solicitor-client basis, and enforcement expenses.

(k)        Where applicable, the provisions of the Construction Contracts Act 2002 shall apply.

(l)         The Company may at any time:

                                              i.            reduce the Client’s credit limit;

                                             ii.            place the Client on stop credit; or

                                            iii.            require payment in advance,

             where the Company reasonably considers there is a risk of non-payment.

4.      SECURITY

(a)        Legal and beneficial ownership of all Goods supplied by the Company shall remain with the Company until the Company has received payment in full for:

                                    i.      the Goods supplied; and

                                   ii.      all other monies owing by the Client to the Company on any account whatsoever.

(b)       Until ownership passes to the Client, the Client:

                                    i.      holds the Goods as bailee for the Company;

                                   ii.      must store the Goods separately and clearly identify them as the property of the Company;

                                  iii.      must keep the Goods insured for their full replacement value; and

                                  iv.      must not grant any security interest over the Goods.

(c)        If the Client defaults in payment or becomes insolvent, the Company may enter any premises where the Goods are located and repossess them without liability for trespass or any resulting damage.

(d)       The Client irrevocably authorises the Company and its agents to enter any premises for the purpose of exercising the Company’s rights under this clause.

(e)       Repossession of Goods shall not affect any rights of the Company to recover outstanding monies owing.

(f)        Where Goods supplied by the Company are incorporated into other products or affixed to property before payment is made in full, the Company’s ownership interest shall continue to the maximum extent permitted by law.

(g)       The Company may retain any of the Client’s goods in its possession pending payment for the Services provided (repairers lien).

(h)      The Company may register a financing statement or financing change statement under the Personal Property Securities Act 1999 in respect of any security interest created by these terms.

(i)         The Client agrees to promptly do anything required by the Company to:

                                              i.            ensure the Company’s security interest is enforceable, perfected, and has priority; and

                                             ii.            enable the Company to exercise its rights under the PPSA.

(j)         To the extent permitted by law, the Client waives its rights under the Personal Property Securities Act 1999 to:

                                              i.            receive notices or statements;

                                             ii.            receive verification statements; and

                                            iii.            object to the Company’s exercise of its rights under the PPSA.

(k)        Sections 114(1)(a), 133, and 134 of the PPSA shall not apply to these terms to the extent permitted by law.

5.      DEFAULT

(a)        If the Client fails to meet their obligations under these terms and conditions, then the Company may serve a written notice requiring the Client to remedy the default within 7 days of serving the notice.  

(b)       If the Client fails to remedy the default within the required timeframe, the Company may:

                                              i.            suspend the supply of Goods or Services;

                                             ii.            terminate the Agreement;

                                            iii.            recover any supplied; and/or

                                            iv.            commence recovery or enforcement proceedings.

6.      TERMINATION

(a)        Where the Services are suspended for non-payment, the Company may cancel the Agreement by giving 2 days’ notice.

(b)       The Client may terminate the Agreement at any time by giving notice to the Company.

(c)        The Client will be liable to pay the Company for all work done and costs incurred up to the giving of notice.

7.      DELAY

(a)       Both parties agree to advise the other of any material delay in the commencement or completion of the Services.

(b)       The Company will not be liable for any delay in completing the Services where the delay is a result of any cause reasonably beyond the control of the Company.

8.      INSURANCE

(a)      The Company holds professional indemnity insurance.

9.      LIABILITY

(a)        In the event of a claim against the Company, the Company’s liability will in no circumstances exceed five times the amount of total fees and expenses paid under the quote or estimate.

(b)       The Company will not be liable for any indirect or consequential loss to the Client.

(c)        The Company will only be liable for the proportion of its direct contribution to any loss.

10.     INTELLECTUAL PROPERTY

(a)       All intellectual property rights owned by the Company before the commencement of the Services remain the property of the Company.

(b)       Intellectual property created by the Company in supplying the Goods and Services shall remain the property of the Company unless otherwise agreed in writing.

(c)       Upon full payment of all amounts owing, the Client is granted a non-exclusive licence to use any deliverables produced for the purpose for which they were supplied.

11.      WARRANTIES

(a)      Express warranties: The Company warrants to provide the Services set out in the quote or estimate with the reasonable care and skill expected of a professional providing similar Services.

(b)      If the Client acquires Goods or Services from the Company for business purposes, the Client agrees that the Consumer Guarantees Act 1993 does not apply to the supply to the maximum extent permitted by law.

12.     DISPUTE RESOLUTION

(a)      The parties agree that if a dispute arises, they will immediately provide the other with a full written account of their dispute. The parties will then first attempt to resolve the dispute between themselves in good faith.

(b)       If the parties fail to resolve the dispute within 5 working days of the written particulars being given to the other party (or longer if mutually agreed) the dispute will be referred to the Disputes Tribunal or the Courts, whichever is appropriate.

(c)       Nothing in this clause prevents the party’s attending mediation as a form of alternative dispute resolution if both parties agree. 

13.      ELECTRONIC COMMUNICATIONS

(a)      The parties consent to receiving notices, invoices, statements, payment claims, variations, approvals, and other communications electronically, including by email.

(b)      Electronic communications shall be deemed received at the time the communication enters the recipient’s information system unless the sender receives notice that delivery failed.

(c)      The parties agree that electronic signatures, approvals, and acceptances shall be binding and satisfy any legal requirement for written communication.

(d)      The Client acknowledges that emailed invoices and statements constitute valid demand for payment.

14.      MISCELLANEOUS

(a)      Governing Law: This Agreement is governed by the laws of New Zealand, and the New Zealand Courts have jurisdiction.  

(b)      Force majeure: No failure or omission by any party to carry out or observe any of the terms or conditions of this Agreement will, except as expressly provided to the contrary in this Agreement, give rise to any claim against the party in question or be deemed a breach of this Agreement if such failure or omission arises from any cause reasonably beyond the control of such party, provided that this clause will not extend to excuse the consequences of insolvency, financial difficulty or the non-payment of monies due.

(c)      Notices: Notices, communications, documents or demands required to be made or served pursuant to this Agreement shall be in writing and signed by the party giving the notice. Notices shall be sent to the applicable party’s registered address, address set out in this Agreement, which may be updated from time to time by a party by sending written notice to the other parties. Any notice or document shall be deemed to be duly given or made if delivered by hand, when so delivered; if sent by post, on the fifth working day following posting; if communicated by facsimile or email, when transmitted to the recipient's last known facsimile number and/or email address, provided that the sender does not receive any indication of incomplete transmission.

(d)      Severance: If any provision of this Agreement is found to be illegal, invalid, or unenforceable, that provision shall be read down to the extent necessary and reasonable in all circumstances to give it a valid operation or partial character. If any provision cannot be so read down, that provision will be void and severable and the remaining provisions will not in any way be affected or impaired.

(e)      Variation: Any variation of the Services outlined in the quote or estimate must be agreed to by both parties and recorded in writing.

(f)      Entire Agreement: This Agreement constitutes the entire Agreement and understanding between the parties and supersedes all prior discussions and Agreements covering the subject matter of this Agreement.

(g)      Privacy Act: The Client is entitled to a copy of all information held by the Company on request pursuant and subject to the provisions of the Privacy Act 2020.

(h)      Health and Safety at Work Act 2015: The Company will not assume any duty imposed on the Client under this legislation.

(i)      Counterparts: This Agreement may be executed in counterparts (which may be electronic or facsimile copies) and all of which, when taken together constitute the one document.

(j)      The Client is deemed to have accepted these Terms and Conditions by:

                                              i.            signing any credit application, other document incorporating these terms, or accepting any quotes;

                                             ii.            instructing the Company to commence work; or

                                            iii.            accepting delivery of any Goods or Services supplied by the Company.