Terms & Conditions | C&C Drainage

DRAIN CLEARING $65+GST FOR A 20 MINUTE UNBLOCK ONLY

1. Definitions

1.1

"Contractor" shall mean C&C Drainage Ltd its successors and assigns or any person acting on behalf of and with the authority of C&C Drainage Ltd.

1.2

"Customer" shall mean the Customer or any person acting on behalf of and with the authority of the Customer.

1.3

"Guarantor" means that person (or persons), or entity, who agrees to be liable for the debts of the Customer on a principal debtor basis.

1.4

"Services" shall mean all services supplied by the Contractor to the Customer and includes any advice or recommendations (and where the context so permits shall include any supply of Services).

1.5

"Price" shall mean the cost of the Services as agreed between the Contractor and the Customer subject to clause 3 of this contract.

2. Acceptance

2.1

Any instructions received by the Contractor from the Customer for the supply of Services and/or the Customer's acceptance of Services supplied by the Contractor shall constitute acceptance of the terms and conditions contained herein.

2.2

Where more than one Customer has entered into this agreement, the Customers shall be jointly and severally liable for all payments of the Price.

2.3

Upon acceptance of these terms and conditions by the Customer the terms and conditions are irrevocable and can only be amended with the written consent of the Contractor.

2.4

The Customer undertakes to give the Contractor at least fourteen (14) days notice of any change in the Customer's name, address and/or any other change in the Customer's details.

2.5

The parties agree that for the purposes of the Construction Contracts Act 2002 where the Contractor is a commercial subcontractor this contract is not a commercial construction contract or a construction contract whether for work on a commercial or residential property and devise liability under this contract shall be in no way limited by any contract that the Customer may have entered into with a third party in relation to the supply of Services and/or Services to that third party or the payment by the third party to the Customer of any monies whether by progress payments or otherwise.

3. Price And Payment

3.1

At the Contractor's sole discretion the Price shall be either;

(a)

as indicated on invoices provided by the Contractor to the Customer in respect of Services supplied; or

(b)

the Contractor's quoted Price (subject to clause 3.2) which shall be binding upon the Contractor provided that the Customer shall accept the Contractor's quotation in writing within thirty (30) days.

3.2

All call outs shall be subject to a minimum charge plus travel time.

3.3

The Contractor reserves the right to change the Price in the event of a variation to the Contractor's quotation. Any variation from the plan of scheduled works or specifications (including additional work carried out) will be charged for on the basis of the Seller's quotation and will be shown as extras on the invoice. Payment for all extras must be made in full at their time of completion.

3.4

At the Contractor's sole discretion a deposit may be required.

3.5

Time for payment for the Services shall be of the essence and will be stated on the invoice or any other forms. If no time is stated then payment shall be due twenty (20) days following the end of the month in which a statement is posted to the Customer's address or address for notices.

3.6

At the Contractor's sole discretion payment shall be due on delivery of the Services.

3.7

Payment will be made by cash, or by cheque, or by bank cheque, or by credit card, or by direct credit, or by any other method as agreed to between the Customer and the Contractor.

3.8

GST and other taxes and duties that may be applicable shall be added to the Price except when they are expressly included in the Price.

4. Delivery Of Services

4.1

Delivery of the Services shall take place when the Customer takes possession of the Services.

4.2

The Customer shall make all arrangements necessary to take delivery of the Services whenever they are tendered for delivery. In the event that the Customer is unable to take delivery of the Services as arranged then the Contractor shall be entitled to charge a reasonable fee for redelivery.

4.3

Delivery of the Services to a third party nominated by the Customer is deemed to be delivery to the Customer for the purposes of this agreement.

4.4

The Contractor may deliver the Services by separate instalments. Each separate instalment shall be invoiced and paid for in accordance with the provisions in these terms and conditions.

4.5

The failure of the Contractor to deliver shall not entitle either party to treat this contract as repudiated.

4.6

The Contractor shall not be liable for any loss or damage whatever due to failure by the Contractor to deliver the Services (or any of them) promptly or at all.

5. Risk

5.1

If the Contractor retains ownership of the Services nonetheless, all risk for the Services passes to the Customer on delivery.

5.2

If any of the Services are damaged or destroyed following delivery but prior to ownership passing to the Customer, the Contractor is entitled to receive all insurance proceeds payable for the Services. The production of these terms and conditions by the Contractor is sufficient evidence of the Contractor's rights to receive the insurance proceeds without the need for any person dealing with the Contractor to make further enquiries.

6. Title

6.1

It is the intention of the Contractor and agreed by the Customer that ownership of the Services shall not pass until:

(a)

the Customer has paid all amounts owing for the particular Services, and

(b)

the Customer has met all other obligations due by the Customer to the Contractor in respect of all contracts between the Contractor and the Customer.

6.2

Receipt by the Contractor of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised and until then the Contractor's ownership or rights in respect of the Services shall continue.

6.3

It is further agreed that:

(a)

until such time as ownership of the Services shall pass from the Contractor to the Customer the Contractor may give notice in writing to the Customer to return the Services or any of them to the Contractor. Upon such notice the rights of the Customer to obtain ownership or any other interest in the Services shall cease; and

(b)

if the Customer fails to return the Services to the Contractor then the Contractor or the Contractor's agent may enter upon and into land and premises owned, occupied or used by the Customer, or any premises as the invitee of the Customer, where the Services are situated and take possession of the Services.

7. Personal Property Securities Act 1999 ("PPSA")

7.1

Upon assenting to these terms and conditions in writing the Customer acknowledges and agrees that:

(a)

these terms and conditions constitute a security agreement for the purposes of the PPSA; and

(b)

a security interest is taken in all Services previously supplied by the Contractor to the Customer (if any) and all Services that will be supplied in the future by the Contractor to the Customer.

7.2

The Customer undertakes to:

(a)

sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which the Contractor may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register;

(b)

indemnify, and upon demand reimburse, the Contractor for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register or releasing any Services charged thereby;

(c)

not register a financing change statement or a change demand without the prior written consent of the Contractor; and

(d)

immediately advise the Contractor of any material change in its business practices of selling the Services which would result in a change in the nature of proceeds derived from such sales.

7.3

The Contractor and the Customer agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms and conditions.

7.4

The Customer waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA.

7.5

Unless otherwise agreed to in writing by the Contractor, the Customer waives its right to receive a verification statement in accordance with section 148 of the PPSA.

7.6

The Customer shall unconditionally ratify any actions taken by the Contractor under clauses 7.1 to 7.5.

8. Customer's Disclaimer

8.1

The Customer hereby disclaims any right to rescind, or cancel the contract or to sue for damages or to claim restitution arising out of any misrepresentation made to the Customer by the Contractor and the Customer acknowledges that the Services are bought relying solely upon the Customer's skill and judgement.

9. Defects

9.1

The Customer shall inspect the Services on delivery and shall within fourteen (14) days notify the Contractor of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Customer shall afford the Contractor an opportunity to inspect the Services within a reasonable time following delivery if the Customer believes the Services are defective in any way. If the Customer shall fail to comply with these provisions the Services shall be presumed to be free from any defect or damage. For defective Services, which the Contractor has agreed in writing that the Customer is entitled to reject, the Contractor's liability is limited to either (at the Contractor's discretion) replacing the Services or repairing the Services.

9.2

No Services shall be accepted for return except in accordance with 9.1 above.

10. Warranty

10.1

For Services not manufactured by the Contractor, the warranty shall be the current warranty provided by the manufacturer of the Services. The Contractor shall not be bound by nor be responsible for any term, condition, representation or warranty other than that which is given by the manufacturer of the Services.

10.2

The Contractor offers no guarantee for Services supplied by the Customer.

11. Consumer Guarantees Act 1993

11.1

This agreement is subject to the provisions of the Consumer Guarantees Act 1993 in all cases except where the Customer is contracting within the terms of a trade/business (which cases are specifically excluded).

12. Default & Consequences Of Default

12.1

Interest on overdue invoices shall accrue from the date when payment becomes due daily until the date of payment at a rate of 2.5% per calendar month and such interest shall compound monthly at such a rate after as well as before any judgement.

12.2

If the Customer defaults in payment of any invoice when due, the Customer shall indemnify the Contractor from and against all costs and disbursements incurred by the Contractor in pursuing the debt including legal costs on a solicitor and own client basis and the Contractor's collection agency costs.

12.3

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

12.4

If any account remains overdue after thirty (30) days then an amount of the greater of $20.00 or 10.00% of the amount overdue (up to a maximum of $200) shall be levied for administration fees which sum shall become immediately due and payable.

12.5

Without prejudice to the Contractor's other remedies at law the Contractor shall be entitled to cancel all or any part of any order of the Customer which remains unperformed in addition to and without prejudice to any other remedies and all amounts owing to the Contractor shall, whether or not due for payment, become immediately payable in the event that:

(a)

any money payable to the Contractor becomes overdue, or in the Contractor's opinion the Customer will be unable to meet its payments as they fall due; or

(b)

the Customer becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or

(c)

a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer.

13. Security And Charge

13.1

Despite anything to the contrary contained herein or any other rights which the Contractor may have howsoever:

(a)

where the Customer and/or the Guarantor (if any) is the owner of land, realty or any other asset capable of being charged; both the Customer and/or the Guarantor agree to mortgage and/or charge all of their joint and/or several interest in the said land, realty or any other asset to the Contractor or the Contractor's nominee to secure all amounts and other monetary obligations payable under the terms and conditions. The Customer and/or the Guarantor acknowledge and agree that the Contractor (or the Contractor's nominee) shall be entitled to lodge where appropriate a caveat, which caveat shall be released once all payments and other monetary obligations payable hereunder have been met.

(b)

should the Contractor elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Customer and/or Guarantor shall indemnify the Contractor from and against all the Contractor's costs and disbursements including legal costs on a solicitor and own client basis.

(c)

the Customer and/or the Guarantor (if any) agree to irrevocably nominate constitute and appoint the Contractor or the Contractor's nominee as the Customer's and/or Guarantor's true and lawful attorney to perform all necessary acts to give effect to the provisions of this clause 13.1

14. Cancellation

14.1

The Contractor may cancel these terms and conditions or cancel delivery of Services at any time before the Services are delivered by giving written notice. On giving such notice the Contractor shall repay to the Customer any sums paid in respect of the Price. The Contractor shall not be liable for any loss or damage whatever arising from such cancellation.

14.2

In the event that the Customer cancels delivery of Services the Customer shall be liable for any loss incurred by the Contractor (including, but not limited to, any loss of profits) up to the time of cancellation.

15. Privacy Act 1993

15.1

The Customer and the Guarantor/s (if separate to the Customer) authorises the Contractor to:

(a)

collect, retain and use any information about the Customer, for the purpose of assessing the Customer's creditworthiness or marketing products and services to the Customer; and

(b)

to disclose information about the Customer, whether collected by the Contractor from the Customer directly or obtained by the Contractor from any other source, to any other credit provider or any credit reporting agency for the purposes of providing or obtaining a credit reference, debt collection or notifying a default by the Customer.

15.2

Where the Customer is an individual the authorities under (clause 15.1) are authorities or consents for the purposes of the Privacy Act 1993.

15.3

The Customer shall have the right to request the Contractor for a copy of the information about the Customer retained by the Contractor and the right to request the Contractor to correct any incorrect information about the Customer held by the Contractor.

16. General

16.1

If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.

16.2

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.

16.3

The Contractor shall be under no liability whatever to the Customer for any indirect loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by the Contractor of these terms and conditions.

16.4

In the event of any breach of this contract by the Contractor the remedies of the Customer shall be limited to damages. Under no circumstances shall the liability of the Contractor exceed the Price of the Services.

16.5

The Customer shall not be entitled to set off against or deduct from the Price any sums owed or claimed to be owed to the Customer by the Contractor.

16.6

The Contractor may license or sub-contract all or any part of its rights and obligations without the Customer's consent.

16.7

The Contractor reserves 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 the Contractor notifies the Customer of such change.

16.8

Neither party shall 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.