Terms of Trade
In these Terms of Trade (“Terms”) we have used "we", "us", and "our" to refer to Traffic Safe New Zealand Limited and "you" to refer to our Customer. By ordering goods and services from us (“Work”), you agree to these Terms to the exclusion of your terms (if any).
1. ACCEPTANCE OF REQUESTS FOR WORK
1.1 We are not obliged to accept any particular request to undertake Work from you.
1.2 We may, at our discretion, decline to commence Work until you have communicated acceptance in writing or these Terms and any further terms that we may require.
2. QUOTES AND ESTIMATES
2.1 Unless stated otherwise, any price we give you for Work is an estimate ("the Estimate") on a plus GST basis of the anticipated cost for us to complete that Work.
2.2 Notwithstanding any Estimate given, our actual cost for completing the Work ("the Actual Cost") may be higher than the Estimate we have given. The Actual Cost will be determined by:
(a) The resources used by us over the number of hours or days of service multiplied by our rates prevailing over the period of service (which may be adjusted for such matters as complexity, urgency, importance or specialised knowledge and minimum charges) on the basis that costs will accrue each day from the time our personnel and services leave our premises until the time of their return; and
(b) Any costs incurred by us on your behalf; and
(c) The cost of any goods supplied by us as part of the Work.
2.3 We may, at our discretion, charge you the amount in the Estimate or the Actual Cost.
2.4 Where we arrange for third parties to provide services related to the Work, we may charge a service margin on third party invoices for the same and include all amounts in our invoicing to you. You will at all times be responsible for payment of any third party invoices incurred in relation to the Work.
2.5 In the event that you cancel any Work we have agreed to perform prior to completion of Work, you will still be liable to pay our costs unless we agree otherwise.
3. TERMS OF PAYMENT
3.1 We may require you to pay a deposit, being an advanced payment for the Work before we commence the Work.
3.2 We may require you to pay for the Work before commencement of the Work.
3.3 In all other circumstances, payment for the Work (or otherwise payable under these Terms) is due on such date as we may specify by invoice or other document given to you by us or, in the event that we have not specified a date, on the date of completion of the Work ("the Due Date").
3.4 If you do not make a payment on the Due Date, you are in default and must pay default interest at the rate of 5% per month, which shall accrue and compound on a daily basis on the total amount outstanding from the Due Date to the date of payment in full.
3.5 We may notify you at any time that we have ceased to carry out the Work on credit. This cessation does not relieve you of amounts owing up to the date on which the contract is terminated.
3.6 Payment of all money shall be without set-off or deduction of any kind.
3.7 We will apportion payments to outstanding accounts as we think fit.
3.8 Subject to any other provision of these Terms, where there is any dispute in good faith as to the amount of money owing by you to us, the portion of the amount owing that is not in dispute or otherwise contested or challenged (“Undisputed Amount”) must be paid within the time required without deduction or set-off, but without prejudice to the parties to contest, challenge or otherwise dispute the appropriate disposition of the remaining.
3.9 An amount shall be deemed an Undisputed Amount if the amount invoiced by us if you fail to give notice of a disputed amount within 7 days of receiving our invoice or if we reasonably deem it to have been contested in bad faith by you.
3.10 Payment may be made by cash or bank deposit or such other payment method that we may, at our discretion, allow. If you elect to pay our account by credit card, we may charge you an additional 4% of the amount you pay.
3.11 All expenses, costs, fees and disbursements including legal and debt collection agency fees incurred by us in recovering amounts payable under these Terms shall be recoverable from you.
4. PERFORMANCE OF WORK
4.1 We will endeavour to carry out the Work in a professional manner, and report to you with updates from time to time.
4.2 You will give reasonable assistance to enable us to perform the Work by:
(a) Giving clear instructions;
(b) Promptly providing any information or content required from you for us to complete the Work;
(c) Providing us with information about any known or potential matter that may impact delivery of the Work; and
(d) Ensuring that any property, location or premises at which we are undertaking Work are available to us for the purposes of the Work and that we are authorised by the lawful owner or occupier of the property, location or premises to do all things necessary to complete the Work.
4.3 You shall indemnify us against all claims and loss of any kind whatsoever irrespective of cause which is brought by any person in connection with any matter, act, omission, or error by us, our agents or employees in connection with any breach of your obligations under clause 4.2 above.
4.4 If we have given you a timeframe for completion of the Work, unless agreed in writing to the contrary such time frame is approximate only and is not deemed to be of the essence.
4.5 Where we are engaged by you to undertake Work for an indefinite or non-fixed term, we may terminate our provision of the Work at any time by notice to you.
5. LIMITATION OF LIABILITY
5.1 Except to the extent that the law prevents us from excluding liability we shall not be liable for any loss or damage or liability of any kind whatsoever (including consequential loss or lost profit or business) whether suffered or incurred by you or another person and whether in contract, or tort (including negligence), or otherwise and whether such loss or damage arises directly or indirectly from Work provided by us.
5.2 To the extent that we are liable for any reason for any loss suffered or liability incurred by you arising from any breach of these Terms or for any other reason, such liability is limited to the amount charged to you by us for the Work.
5.3 When we procure services on your behalf, you agree that we will not be liable in any form for the acts, omissions, workmanship or services provided by any third party, or any party that provides services in connection with the Work. Where we procure goods on your behalf, you agree that we will have no liability in respect of the performance or suitability of such goods and we provide no warranty for the same.
5.4 You agree that, to the maximum extent permitted by law, sections 9, 12A, 13 and 14(1) of the Fair Trading Act 1986 will not apply. You acknowledge that both parties are in trade and that the provisions of this clause are fair and reasonable.
6. INTELLECTUAL PROPERTY
6.1 In respect of Intellectual Property used in or arising from the provision of goods of services or the performance of the Work, we will retain exclusively all ownership, rights and interests in such Intellectual Property and you shall have no rights in or to such Intellectual Property.
7.1 Any notice may be given by phone, in person, posted, or sent by fax or email to you.
8. GOODS SUPPLIED BY US
8.1 Unless agreed otherwise, were we supply any goods or equipment in the course of providing services to you, you acknowledge that we retain ownership of them at all times.
8.2 Clause 8.1 creates a “security interest” in such goods under the Personal Property Securities Act 1999 (“PPSA”). You waive the need for us to forward you a copy of any verification statement in respect of any financing statement or financing change statement registered under the PPSA in connection with these Terms.
8.3 You must pay us the cost of replacing any damaged or destroyed goods or equipment supplied or used by us in the course of providing services except where such damage or destruction has been caused by an act or omission on our part.
9.1 We shall be entitled at any time by notice in writing to you to vary any provision of these Terms and you shall be bound by such variation PROVIDED THAT you may terminate our engagement with you should any such variation materially alter your rights under these Terms
10.1 You must pay our costs (including legal costs, as between solicitor and client) of and incidental to the enforcement or attempted enforcement of our rights, remedies and powers under these Terms.
11. FORCE MAJEURE
11.1 We shall not be liable for delay or failure to perform the Work if the cause of delay or failure is beyond our control.