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1. Definitions and interpretation

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In this agreement, unless the context requires otherwise:

“Services” means the services provided by the Contractor to the Customer as part of the Works, which may include without limitation the installation of Goods;

“Works” means the supply of Goods and the provision of Services to the Customer as per each Statement of Work;

“Customer” means the person(s) and/or company(s) that contracts Fabtech Automation Ltd to do Works as described in the Statement of Work and any person acting on behalf of or with the authority or apparent authority of the Customer;

“Company” means Fabtech Automation Limited;

“Fabtech Automation Ltd” means Fabtech Automation Limited trading as Fabtech Automation;

“Contract price” means the price of the Goods and/or Services as agreed between the Customer and the Contractor;

“PPSA” means the Personal Property Securities Act 1999;

“PPSR” means Personal Property Securities Register;

“security interest” means security interest as defined in section 17 of the PPSA;

“financing statement” means financing statement as defined in section 135 of the PPSA;

“financing change statement” means financing change statement as defined in section 135 of the PPSA;

“Force Majeure Event” means an event or occurrence which is beyond the Company’s reasonable control (including, without limitation, any natural disaster);

“Goods” means goods, accessories, components and/or materials supplied by the Contractor to the Customer as part of the Works;

“Location” means the site at which the Works are carried out for the Customer;

“Manufacturer’s Instructions” means the installation and/or operating instructions and/or guidelines for the Goods and/or Services supplied from time to time by the manufacturer of the Goods included in the Works as at the date of the acceptance of the Statement of Work;

“Manufacturer’s Warranty” means the warranty supplied from time to time by the manufacturer of the Goods as at the date of the acceptance of the Statement of Work;

“Related Work” means any additional building, carpentry, painting, plastering, plumbing or other work or other trades that the Customer requires, which are not to be carried out by the Company

“Services Delay Charge” means the services delay charge (if any) set out in the Statement of Work;

“Services Interruption Event” means any interruption to a Works caused by; a Force Majeure Event, the Customer’s failure to carry out or perform any obligation required of it under this agreement which in the sole opinion of the Company does or may cause a delay in the Works and any other matter which in the reasonable opinion of the Company will cause an interruption or delay in the performance of the Works;

“Statement of Work” means the details outlining the provision of the Works, which statement will be delivered in writing (including email) and may include (where applicable) an estimate or quotation (as specifically expressed as the case) of costs;

“Variation” means a change in the Statement of Work including the specifications, scope, time of supply, price or scale of the Works and such variation shall form part of this agreement;

“Workmanship” means a good, professional standard of delivery in connection with the Services performed;

 

  2. Customer’s Obligations

 

2.1. The Customer agrees to:

 

2.1.1. Pay the Company for any Services, Works and Goods provided.”

2.1.2. Provide the Company with all necessary plans, specifications, services and amenities, so as to allow the Company to carry out the Works, provide access to the Location and ensure to the Company’s reasonable satisfaction that the Location remains in a state and condition that is safe for the Company;

2.1.3. While on Site the Customer and the Customers employees, representative and other contractors will comply with all instructions and requirement given by the Company, the Company’s employees and representatives.

2.1.4. Ensure the Location complies with all necessary bylaws and restrictions is structurally sound (in accordance with all legislation governing safety in the workplace);

2.1.5. Not to cause any disruption or obstruction to the carrying out of any Works and to follow any instructions provided by the Company about the Works;

2.1.6. Where the Works requires co-ordination with other trades then the Customer will supply the Company with a schedule detailing all relevant information so as to allow the Company sufficient time to co-ordinate with the Customer’s other tradespersons;

2.1.7. Permit the Company to attach such reasonable signage as the Company may wish to any Works so as to identify that the Company is carrying out the Works;

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2.2. Without prejudice to any other right or remedy of the Company, if the Customer fails to carry out or perform any of its obligations pursuant to this clause 2 (excepting clause 2.1.6) then, in addition to any Additional Expenses Charge that may apply, the Company may charge the Customer a Services Delay Charge for each day (or part thereof) that the Company is, in its reasonable opinion, unable and/or not required to carry out or perform the Works as a result of such breach by the Customer.

2.3.  The Customer acknowledges that unless otherwise agreed in writing between the Customer and the Company, 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 Works.

2.4. The Customer is responsible for all utility costs for Works done at the Site.

2.5. The Customer must provide the Company with keys and codes for the premises or have someone available to grant the Contractor access at the agreed times.

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  3. Quotation

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3.1. The Customer may request a Quotation from the Company, setting out the price of the Goods and/or Works to be supplied. the quotation shall be valid for 30 days from the date of the quotation, and thereafter a revised quotation will be required.

3.2. If the Works will cost more than the Quotation provided due circumstances not foreseen at the time the quote was issued then an updated quote will be issued by the Company.

3.3. If the customer does not accept the updated quote within 10 days the all Works will cease and the contract between Fabtech Automation Ltd and the Customer will be at an end. The Customer will be charged for the Works done and any Goods provided up to the date of cancelation and will have no claim against Fabtech Automation Ltd.”

 

  4. Acceptance

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If any instruction is received by the Company from the Customer for the supply of Goods and/or Works following receipt of these terms and conditions such instruction shall constitute acceptance of the Terms and Conditions contained herein. Upon acceptance, these Terms and Conditions are definitive and binding.

 

  5. Terms and Conditions

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These Terms and Conditions and any subsequent Terms and Conditions issued by the Company shall apply to all orders for Goods and/or Services made by the Customer after the date and time at which these conditions are first brought to the notice of, any employee, staff member or representative of the Customer. It shall be the Customer’s responsibility to ensure that these conditions are promptly brought to the attention of any appropriate staff member of the Customer, and accordingly any order made by the Customer after the date and time described above in this clause shall be deemed to be an acceptance of these Terms and Conditions. New Zealand Law applies to these terms and conditions and any Contract.

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  6. Price

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 6.1. The Price shall be either as indicated on the invoices provided by the Company to the Customer in respect of the Goods and/or Services supplied; or the Company’s current price at the date of delivery of any Goods according to the Company’s current price list.

6.2. A deposit may be required of up to 50% of the Price for the Works is payable at the time of acceptance of the Statement of Work by or on behalf of the Customer;

6.3. The Company reserves the right to implement a surcharge for alterations to specifications of products and/or services after the order has been placed.

6.4. All quotes and prices mentioned are in New Zealand dollars unless stated otherwise on the invoice or quotation.

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  7. Payment

 

7.1. The method of payment will be made by direct credit to our bank account (details of which will be provided on invoice), or by any other method as agreed to between the Customer and the Company.

7.2. Time for payment for the Goods and/or services shall be of the essence and will be stated on the invoice, quotation, tender documents, work authorisation form or any other work commencement forms. If no timeframe for payment is stated then payment shall be due on the 20th of the month following invoice.

7.3. The Customer must by for Goods by the due date in the invoice for the Goods.

The Customer can elect to pay for Works as one lump sum or by progress payments. If the Customer chooses to pay in progress payments then the Customer and Company must mutually agree on a progress payment arrangement.”

7.4. Late payment shall incur interest at the rate of 10% per month calculated on a daily basis and invoiced monthly. This shall be payable on any monies outstanding under the Contract/Invoice from the date payment was due, until the date payment is received by the Company,

7.5. Any monies that remain outstanding to be paid once the date of payment has fallen due may be referred to a debt collection agency. The Company reserves the right to undertake this action without prior notice to the Customer. The Customer will be held liable for all costs associated with the collection of any outstanding monies; including but is not limited to debt collection agency costs, legal fees, Court costs and all reasonable sums incurred by the Company in the pursuance of satisfying payment.

7.6. Without prejudice to any other remedies the Company may have, if at any time the Customer is in breach of any obligation (including those relating to payment) the Company may suspend or terminate the supply of Goods and/or services to the Customer and any of its other obligations under the Terms and Conditions. The Company will not be liable to the Customer for any loss or damage the Customer suffers because the Company has exercised its rights under this clause.

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  8. Updating terms and conditions

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The Company may make changes to the terms and conditions from time to     time. A link to the most current terms and conditions will be available on the Company’s website. If you continue to use the services after the terms and conditions have been updated you are deemed to have accepted the revised terms.

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  9. PPSA

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These Terms and Conditions constitute a security interest in the Goods supplied by the Company to the Customer for the purposes of the PPSA as security for payment by the Customer of all amounts due under the Contract, including any future amounts and shall apply to both all Goods previously supplied to the Customer (if any) and all Goods that will be supplied by the Company in the future.

The Customer agrees to sign any further documentation and/or provide further information which the Company may reasonably require to register and/or renew a registration of a financing statement or financing change statement on the PPSR in favour of the Company.

To the extent that Part 9 of the PPSA applies, the Customer agrees that the provisions of sections 114(1)(a), 120, 122, 133 and 134 of the PPSA which are for the Customer’s benefit, or place any obligations upon the Company in the Customer’s favour, will not apply; and when the Company has rights in addition to those in Part 9 of the PPSA, those rights will continue to apply.

To the extent that Part 9 of the PPSA applies, without limiting anything in the previous paragraph, the Customer hereby waives its rights under sections 116, 120(2), 121, 125, 126, 127, 129, and 131 of the PPSA, and its rights to receive a copy of the verification statement under section 148 of the PPSA in respect of any financing statement or change statement registered by the Company.

The Customer agrees to treat the security interest in the Goods as a continuing and subsisting security with priority over a registered general security interest and any unsecured creditors, regardless of whether the goods have become fixtures at any time before payment has been made for them.

The Customer shall indemnify, and upon demand reimburse, the Company for any and all costs incurred in registering a financing statement or financing change statement on the PPSR or releasing any Goods charged thereby.

If at any time the Company has sufficient cause to exercise its rights under section 109 of the PPSA, the Customer irrevocably grants the Company the right and licence to enter upon the Location and/or any premises where the Goods are located to remove and repossess the Goods, without notice and without liability whatsoever to the Customer, or to any person or company claiming through the Customer

 

  10. Rights of termination

 

10.1. The Company may cancel the delivery of the Goods or provision of the  Services at any time before the Goods are delivered or the Services are provided under clause 13, or, if the Customer has breached these terms and conditions and not remedied the breach with 20 working days of receiving written notice of the breach.

10.2. Termination of this agreement will not prejudice or affect the rights, remedies and claims of the Company. The Company shall have nor liability or responsibility whatsoever to the Customer for any loss or damage at any kind which may result directly or indirectly from such termination of this agreement.

10.3. Upon termination of this agreement, the Customer will, subject to any specific remuneration obligation set out in the Statement of Work, be liable to pay the Company for:

(a) The value of that part of the completed Works delivered, performed and payable according to the terms of this agreement and not previously paid for as at the date of termination; and

(b) Any reasonable costs that the Company has incurred as a result of the early termination due to the Customer’s default.

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  11. Intellectual property

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11.1. 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 Goods and the Works (collectively “Intellectual Property”) remain the Company’s property notwithstanding the sale of the Goods and the provision of the Works to the Customer. The Customer may not use, reverse engineer, remove, interfere with or alter the Intellectual Property in any way. Intellectual Property owned by Fabtech Automation Ltd may not be copied, reproduced, distributed, modified, published, uploaded, posted, or transmitted in any way without the Company’s prior written consent.

11.2. The Customer acknowledges that it is aware that any breach of this clause 11 may result in Fabtech Automation Ltd suffering damage. The Customer indemnifies the Company against all losses, damages, expenses and legal costs (including on a solicitor and client basis) that the Company may reasonably sustain or incur as a result, whether directly or indirectly, of any breach by the Customer of the provisions of this clause 11.

11.3. This clause 11 survives termination of this agreement.

 

  12. Disputes

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12.1. No party to this agreement shall begin any court proceedings relating to any dispute arising out of this agreement (including any dispute as to the validity, breach or termination of this agreement or as to any claim in tort, in equity pursuant to any statute) unless that party has complied with the following paragraphs of this clause.

12.2. Any party who claims that a dispute has arisen under or about this agreement must give written notice to the other party specifying the nature of the dispute.

12.3. On receipt of the notice by the other party, the parties to this agreement:

(a) Must co-operate and use their reasonable endeavours to resolve the dispute quickly;

(b) Must, if they do not within seven (7) days of receiving the notice (or any further period as they may agree in writing) resolve the dispute, refer the dispute to mediation (“mediation”).

12.4. The mediation shall be conducted in terms of the LEADR New Zealand Inc. Standard Mediation Agreement and the mediation shall be conducted by a mediator and at a fee agreed by the parties, failing agreement between the parties, the mediator shall be selected, and the mediator’s fee shall be decided by the Chair for the time being of LEADR New Zealand Incorporated.

 

  13. Force Majeure

 

The Company will not be liable or responsible for any failure to perform, or delay in performance of, any Works that is caused by any act or event beyond the Company, or its service providers, control including but not limited to: strikes, lockouts or other industrial action by third parties, civil commotion, riot, invasion, terrorist attack or threat of terrorist attack, war (whether declared or not) or threat or preparation for war, fire, explosion, storm, flood, earthquake, subsidence, epidemic or other natural disaster, or closure or failure of public infrastructure or public or private telecommunications networks.

 

The Company may by giving written notice to the Customer advise of the event outside of the Contractor, or its service providers, control and cancel the Contract and neither party shall have a claim against the other.