Terms of Trade
-All payment claims will be made under the CCA Act 2002. Payment is due within 7 Days of invoice.
-The above named client will be liable for any costs incurred for the collection of any over-due invoices
-This quote is subject to supplier increases, without notice
-Prices are subject to any changes in GST
Please note the Koya Contractors Ltd. Will not be liable for any repairs required to roads, driveways, footpaths, fences, or underground services caused by trucks, machinery or any other construction equipment used on site.
Koya Contractors Ltd
Tel: 04 9799813
E-mail: nitesh@koyacontractors.co.nz
Administration Office – 118b Newlands Road Newlands Wellington
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Koya Contractors Limited
Registered in New Zealand no: 4794679
Registered Office: 214 Main Road, Tawa, Wellington 6021
CONDITIONS OF TRADE V14.5
Koya Contractors Limited
Interpretation
1.0) “We/ Our/ Us” (as the context in this agreement may require) means Koya Contractors Limited “You/ Your/the Buyer” means the person, company or organisations contracting with or offering to contract with Us If there is more than one party contracting with Us then their obligation shall be joint and several.
1.1) “Variations” are any changes to the project requested by You and the cost of the Variation is agreed to be an additional price payable 7 days from invoice unless otherwise agreed in writing prior to the Variation being requested.
1.2) “Your Agent” is a person or company specified by You in writing prior to Us making an offer of service who is authorised to act on Your behalf. Communication to Your agent is deemed as having been received by You and instructions, including but not limited to variations, from Your Agent are deemed to be Your agreement to pay the price of the requested variation or amendment.
1.3) “Resident” is a private resident or residents as opposed to an organisation and is synonymous with “Residential Consumer” or “Residential Occupier” unless You specify otherwise in wiring prior to Us making an offer of service to You.
1.4) “Estimate” is a pricing guide that We offer when a specific element of cost or production has not been quoted and is offered as a guide only with errors and exceptions accepted not as a fixed price quote nor can the estimate be used to limit the cost of the service.
1.5) “CCA” means The Construction Contract Act 2002 and its amendments. (Public Act 2002 Number 46)
1.6) “Terms” is this document, Terms and Conditions of Trade V14, and its amendments which applies to each and every transaction between You and Us and cannot be over-ridden without prior written consent from Us.
1.7) “Due Date” is the date by which your payment is due as stated on your invoice of on a payment schedule that is included in our agreement with you
1.8) “Payment” is Your payment of cleared funds into our nominated bank account by the due date for the payment or presentation of cheque to Us prior to the due date so that the cheque banked into our account the business day after We receive it will produce cleared funds in our account by the due date.
1.9) “Failed Payment” is when we have not received payment of cleared funds in our account from you by the due date.
1.10) “Managed Account” is an account attracting associated costs including but not limited to interest, debt collection, legal costs, and administration. Failed payment causes account to automatically become a managed account
1.11) “Waiting Time” is the time from our arrival on site to being able to start work due to any cause outside of our direct control, including but not limited to, failed payment
Acceptance
2.0) This is a Construction Contract as defined by the Construction Contracts Act 2002. You’re agreed address for service of any document shall be your address given on your account application or acceptance of our quotation.
2.1) Acceptance of a quotation by you, and your successors, assignees and guarantors shall be regarded as your irrevocable acceptance of these Conditions of Trade.
2.2) you accept the Terms of Trade V14 as a condition of the offer to supply service that is prior to any debt being incurred. Any order placed by email, verbally or by Your Agent or payment made is your acceptance of these Terms.
2.3) If We require additional documents to be completed and signed by You the additional signatures required are to be provided on request (within 7 days) including but not limited to Permission to Perform Credit Check, Confirmation of owner (or permission of Trustee if Your property is owned by a trust or company), Personal Guarantee, Lien on Property or Mortgage, or other confirmation of security document.
2.4) The price, if not a quoted and accepted price, is subject to change without notice notwithstanding any estimate, quote or published price list and is payable in cash, within seven days of the invoice date by approved credit account holders. Cash sales, eg sales where formal account facilities have not been agreed or have been withdrawn, are subject to the terms of payment stated on the quotation. Applicable freight, GST and insurance charges are additional. Quotations are valid for 30 days from the date a signed quotation is sent to you.
2.5) Where payment on or prior to delivery has been agreed and fails to occur we reserve the right to charge waiting time of $60/person +GST for staff on site till payment is made or remove the product from the site and charge for redelivery of same .
Price
3.0) The price, if not a quoted and accepted price, is subject to change without notice notwithstanding any estimate, quote or published price list and is payable in cash, within seven days of the invoice date by approved credit account holders. Cash sales, eg sales where formal account facilities have not been agreed or have been withdrawn, are subject to the terms of payment stated on the quotation. Applicable freight, GST and insurance charges are additional. Quotations are valid for 30 days from the date a signed quotation is sent to you.
3.1) Where payment on or prior to delivery has been agreed and fails to occur we reserve the right to charge waiting time of $60/person +GST for staff on site till payment is made or remove the product from the site and charge for redelivery of same and receive payment for entire balance of contract prior to redelivery and install/completion
3.2) Price or the formulae for calculating price are to be defined prior to service being delivered.
3.3) Price Limit is offered prior to acceptance.
3.4) Variation of price is to be defined at time of variance and signed you on a form supplied by us. Separate pricing and payment terms for variations may apply.
3.5) All prices stated either verbally or in writing are agreed to be the full price less any discounts that are expected to apply including prompt payment discount.
3.6) Any discount that expires or fails is added to the amount payable which then becomes payable in 7 days form the addition of the new invoice regardless of any extended credit that may have been available with the original invoice.
Supply of Services
4.0) We guarantee that we will use high quality materials in accordance with manufacturers approved processes. We will not be required to work on the site in a location where any other work is being undertaken by any other person. It shall be your sole responsibility to protect and insure our work whether in progress or completed, from damage by any other persons. Unless you are a residential occupier of the workplace while the work is being done you are also responsible for a work place health and safety plan. We will comply with the requirements of your plan.
4.1) Unless you are a residential consumer, you warrant that the goods and/or services are supplied to you for use in trade and the Consumer Guarantees Act 1993 does not apply to this contract. You agree to indemnify us for any claims by consumers against us where you or your agent has not legitimately contracted out of the Consumer Guarantees Act 1993. You agree that to the fullest extent permitted by law we have no liability in tort, contract, or otherwise, for any representation, express or implied, by you or by statute, to your customers and you shall, before delivery, give notice of these conditions to your customers and to all of your financiers.
4.2) You agree that remedial work is not included in any price quoted but will be charged for. Remedial work being unforeseen requirements not obvious prior to commencement of agreed work. This includes but is not limited to repairing and or replacing rotten timber eg weatherboards, studs, flooring etc. dealing with cables, pipework or other internal services affected
4.3) You accept the works will be carried out without liability on our part for any consequential losses incurred as a result of the works contracted to the scope provided or any agreed or necessary variation
4.4) Any modification to the design, specifications or scope of any quote or estimate is subject to price alterations
4.5) You accept responsibility to ensure all building regulations, body corporate and local authority consent requirements are met regarding any work we undertake for you
4.6) We may license or sub-contract all or any part of this contract its rights and obligations without Your consent.
Credit Information
5.0) You authorise us periodically to make any inquiries about your credit standing and instruct all referees, banks, solicitors, and accountants, to provide all information to us, which may assist us to process any credit application or credit account and to obtain payment. You authorise any third party to disclose to us any relevant personal information held about you, or your directors or shareholders subject to the Privacy Act 1993. Personal information collected by us may be held, used and disclosed for purposes of periodic credit assessment, obtaining credit references; maintaining our contracts, enforcing our rights and marketing our goods and services. You, your directors or shareholders may have rights to access, and request correction of personal information held by us.
Payment
6.0) You agree not to question our strict right to payment for our goods and/or services and you grant us a purchase money security interest for payment to provide for an event of late payment. In the event of refusal to pay, non-payment or any other breach of these conditions, you will pay all of the actual costs of attempted debt collection. You agree that legal costs incurred by us will be payable by you on a full indemnity basis together with interest continuing after judgment until full payment has been received, at a rate of 2.5% per month on all overdue amounts, including all costs. All payments shall be applied first in payment of default interest (if any). We reserve the right to decline extended or additional credit.
6.1) Until payment has been made to us, you shall hold all goods, including materials, tools and equipment upon trust and as our Bailee. It is your responsibility to keep all of our goods safe,
6.2) It shall be your sole duty to identify and keep separate all goods supplied pursuant to these conditions and to establish that we have been paid for all goods and services and to pay to a separate trust fund the proceeds of any sale to ensure payment to us of the full value of our goods, services and costs and from there to pay only as directed by us. Liquidated damages to the value of the total amount due to us accrue upon discovery by us of incorporation of the goods into any third party supplied or owned goods or property.
6.3) In addition to any remedy provided by the Construction Contracts Act 2002, you grant us a General Security Interest in all present and after acquired property in respect of any extended credit amounts and if any of our goods becomes incorporated into any land owned by you a registerable mortgage on that land or, if incorporated by your authority into the land of any other person, you grant a mortgage over any of your land or the land of any director of yours who signs any contract with us subject to these terms. The terms of any such mortgage shall be identical to those for the time being standard to the Auckland District Law Society.
6.4) If payment for goods and/or services is refused by you, your agents, or an administrator, receiver or liquidator is appointed to you, or your customer, we shall be entitled, within 30 days after ascertaining that funds are not lodged on separate trust for us you authorise us as your true and lawful attorney to create, execute and register our securities or any of them, as granted or agreed by these Conditions of Trade. For this purpose the execution of a mortgage, or General Security Agreement shall be considered to take place on the date on which we receive notice of breach of these conditions by you to which we have not agreed in writing.
6.5) The Due Date unless otherwise stated in writing is 7 days from invoice date
6.6) All discounts offered at time of invoice expire on the Due Date and will be charged out on separate invoices.
6.7) Any and all charges applied after Due Date are due and payable 7 days from invoice regardless of whatever extended credit may, or may not, have been offered on the original invoice. These charges include, but are not limited to, failed discounts, expired discounts, interest, management charges, and administration charges
6.8) We reserve the right to apply additional costs to the payable balance of all Failed Payments
6.9) We reserve the right to pass any unpaid invoice of part thereof to a debt collection agency whose costs are added to the amount owed plus an administration cost to load unpaid account for debt collection of $50 + 10% of balance owing
6.10) We reserve the right to add security over property with the costs added to client account
6.11) Fees and charges for Managed Accounts are
6.11.1) One-Off Account management of $50 plus 10% of the balance
6.11.2) Weekly account management fee 1% of balance per Week minimum $20
6.11.3) Each Follow up letter $20
6.11.4) Each follow up call $20 plus $1.5 per minute
Liability
7.0) We shall be entitled to deliver and invoice by instalment and to withhold delivery of any instalment until all money due to us has been paid. If you make any default or commit any act of bankruptcy or become insolvent, we may cancel any order to the extent that it is unfulfilled but without prejudice to our right to payment or otherwise in respect of goods and/or services already delivered. In the case of force majeure either party may cancel any undelivered portion if delay in delivery exceeds 60 days. We will not be liable for faults or defects that occur for reasons beyond our control. Our liability is limited to the value of the goods and/or services supplied within the thirty days preceding any claim by you. Dates for delivery are given in good faith and are not a condition of sale or purchase. Time shall in no case be of the essence. We shall not be held responsible for any delay in delivery and you will not be entitled to cancel orders because of any such delay. All claims for loss of or damage repair to, return or miss-delivery or replacement of goods must be made on the carrier within 15 working days from the date of delivery
7.1) We shall not be liable for any consequential loss, damages, or other claims arising from the use to which the goods are put or intended to be put. The provisions of the Consumer Guarantees Act are negated to the extent permitted by law. Manufacturers guarantees remain in force and you agree to claim for these directly with the manufacturer.
7.2) You will not require us to undertake remedial work before all outstanding monies due have been received and agreements have been met.
7.3) No time or other indulgence granted by us or to you will affect our strict rights pursuant to these conditions in any case where these conditions conflict with any other conditions.
7.4) You, and your directors or shareholders (where applicable), signing the account application or accepting our quotation agree to stand personally as surety and guarantor jointly and severally as principal debtor for all debts arising under this agreement in
Defects & Disputes
8.0) No dispute between the parties shall be subject to arbitration but shall be subject to New Zealand law and if not settled within 20 working days in mediation or adjudication under the Construction Contracts Act 2002, or of any adjournment shall be tried in a court in New Zealand. Before litigation we may appoint a mediator if we consider settlement by good faith negotiation is possible.
8.1) You need to report any defect to Us within 7 days of delivery unless an alternate inspection period is stated in the contract signed by us
8.2) If You wish to report a defect or raise a dispute it is to be put in writing by You completing the form We supply on request and the completed form to sent Us within the inspection period stated in the contract or 7 days if no inspection period stated in the contract
8.3) Any dispute not raised by submission to us of our completed from within the inspection period will be deemed a warranty claim and cannot be used to delay payment of invoices by their due date(s)
8.4) Unless an agreed arbiter is assigned and agreed by both You and by Us prior to acceptance of the contract then the You accept that We act as the arbiter to quantify the value of the disputed portion in response to Your lodging a claim of dispute.
8.5) We shall quantify and define the disputed amount and forward a credit note for the disputed amount to be applied only to the original invoice.
8.6) You agree to pay the undisputed portion of the amount payable by the Due Date. The undisputed portion being the original invoice less the credit note issued against it
8.7) When we have resolved the disputed issues or fees plus the issue of an invoice for the disputed amount payable 7 days from dispute resolution.
8.8) We agree to meet with you within 7 days of a dispute being raised at a Wellington venue nominated by us to address the dispute. If you are unwilling to meet then you agree to pay the disputed amount into our holding account unless We agree in writing to a specific number of days of extension of time.
8.9) Should any dispute that, having followed above process, remain unresolved then You agree that We may either take the case to the District Court or if the disputed amount be within the jurisdiction of the Disputes Tribunal then both parties agree to take the matter to Disputes Tribunal and You agree to sign the extension of jurisdiction if requested by Us and both parties agree to be bound by the ruling of the Disputes Tribunal.
8.10) Any dispute not raised by submission to Us of our completed form prior to due date, that We later agree to compensate for, shall not affect timely settlement of the original invoice and its value shall only apply from the date for the credit note issued by Us. And interest or other costs applicable to the original invoice remain payable.
Jurisdiction and currency
9.0) 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 courts of New Zealand
9.1) Any court action is to be heard by the Wellington District Court or division thereof regardless of country or city of residence you or any other party may reside in
9.2) All prices and payment are in NZ dollars
9.3) If any lien, mortgage or security device that We required it is agreed that the legal cost to arrange such security is be added to the account payable by you
General – Severability, Set off and updates
10.1) We reserve the right to alter these conditions without prior notice to you. In any case where these conditions conflict with any other conditions, such as, conditions of purchase or a head contract where this is a sub-contract with conflicting conditions, these conditions shall be deemed to be incorporated into the otherwise conflicting conditions as a special condition.
10.2) It is agreed that a variation order is agreed without Us needing to gain specific approval limit of the greater of $600 +GST or 10% of the original order value +GST if immediate remedy to additional work is required to complete the order due to construction issues that were unable to be previewed due to the construction of the project such as, but not limited to, supporting elements that were covered by windows being removed that need additional elements
10.3) It is agreed that a Variation Order is mutually agreed to if the circumstance of the service offered changes between time of offer and start of work or if You make any alteration to the work environment that requires any additional service to be supplied by Us beyond the scope of the original service and such service shall be defined by Us in a Variation Order Acceptance.
10.4) We shall be under no liability whatsoever to you for any indirect loss and/or expense (including loss of profit) suffered by you arising out of a breach by us of these terms and conditions.
10.5) You shall not be entitled to set off against or deduct from the Price any sums owed or claimed to be owed to you by us.
10.6) We reserve the right to review these terms and conditions at any time. If, following any such review, there is to be any change to these terms and conditions, then that change will take effect from the date on which we notify you of such change.
10.7) In the event of any breach of this contract by Us, Your remedies shall be limited to damages which under no circumstances shall exceed the Price of the Goods and Services.
10.8) We shall not be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, drought, storm or other event beyond the reasonable control of either party.
Project Specific
11.0) All works have their own reference and Project Specific conditions
The following conditions are specific to and only apply to KCL quote
a. Plumb, level & square Offer assumes existing framing, cladding, gib etc. is plumb, level and square
Where this is not the case – extra costs may be incurred and it may not be possible to achieve perfect aesthetic results
b. Finishing & plastering – not included
Finishing & plastering includes stucco rendering, surface preparation, filling, sanding, painting, staining, oiling, varnishing etc.
c. Repairs and remedial work – not included
Repairs cannot be guaranteed to result in “as new” operation or aesthetics. The result will be fit for purpose and the installers will do whatever they can to maximise the aesthetics as a secondary function
d. Access
We require a minimum clear floor space from 1/2 metre each side and 1 metre in front of all units to be replaced. Moving, removing and reinstatement of furniture, furnishings, fixtures and fittings is expressly excluded from our responsibilities. Where it is necessary for us to move or remove any item in order to complete the work contracted we are not responsible for reinstatement of the item(s)
e. Mobile tower –
We have allowed up to XXX days hire of tower where works are delayed due to events beyond our control eg bad weather that incur extra hire charges, these will be passed on at the rate of $28.75 +GST per calendar day or part (including weekends)
f. Parking
Where it is necessary for our staff or agents to park vehicles in chargeable parking zones we will pass on to you charges incurred at cost
a. Supply contract
When contract is to supply only.
It is your responsibility to ensure that all specifications in the attached schedule are correct
Any changes to the schedule are to be agreed prior to manufacture.
Any changes requested will result in a new schedule being produced and forwarded for formal acceptance
Koya Contractors Ltd will only supply to the specifications authorised by the buyer
NOTE: Please refer to Conditions of Trade clause 2.3
b. Supply contract site visit
Should the buyer or installer require on site advice on specifications this will incur a separate charge
The minimum charge is $100.00 + GST for up to 1 hour and $25.00 + GST per 1/2 in full or part thereafter
These charges are per visit
Any advice or information given does not alter the buyers’ responsibilities under this contract to approve all details and specifications
Warranties
12.0) Manufacturers warranties apply (see clause Liability 7.1)