Qubik TMC Limited – Terms & Conditions of Trade
1.1. “Contract” means the terms and conditions contained herein, together with any Quotation, order, invoice or other document or amendments expressed to be supplemental to this Contract.
1.2. “Supplier” means Qubik TMC Limited, its successors and assigns or any person acting on behalf of and with the authority of Qubik TMC Limited.
1.3. “Client” means the person/s, entities or any person acting on behalf of and with the authority of the Client requesting the Supplier to provide the Services as specified in any proposal, quotation, order, invoice or other documentation, and:
(a) if there is more than one Client, is a reference to each Client jointly and severally; and
(b) if the Client is a partnership, it shall bind each partner jointly and severally; and
(c) if the Client is a part of a Trust, shall be bound in their capacity as a trustee; and
(d) include the Client’s executors, administrators, successors and permitted assigns.
1.4. “Goods” means all Goods supplied by the Supplier to the Client at the Client’s request from time to time.
1.5. “Confidential Information” means information of a confidential nature whether oral, written or in electronic form including, but not limited to, this Contract, either party’s intellectual property, operational information, know-how, trade secrets, financial and commercial affairs,
contracts, client information (including but not limited to, “Personal Information” such as: name, address, occupation, electronic contact (email, Facebook or Twitter details), credit applications, credit history, and pricing details.
1.6. “Price” means the Price payable (plus any Goods and Services Tax (“GST”) where applicable) for the Goods and / or Services as agreedbetween the Supplier and the Client in accordance with clause 6 below.
1.7. “Services” means all Services supplied by the Supplier to the Client at the Client’s request from time to time.
1.8. “Guarantor” shall mean that person (or persons), or entity, who agrees to be liable for the debts of the Client on a principal debtor basis.
2.1. The Client is taken to have exclusively accepted and is immediately bound by these terms and conditions at the time that the Client places an order for or accepts Delivery of the Goods. In the event of any inconsistency between the terms and conditions of this Contract and any other prior document or schedule that the parties have entered into, the terms of this Contract shall prevail. Any amendment to the terms and conditions contained in this Contract may only be amended in writing by the consent of both parties.
2.2. Where more than one Client has entered into this agreement, the Clients shall be jointly and severally liable for all payments of the Price.
2.3. Any advice, recommendation, information, assistance or service provided by the Supplier in relation to Goods and / or Services provided is given in good faith, is based on Supplier own knowledge and experience and shall be accepted without liability on the part of the Supplier and it shall be the responsibility of the Client to confirm the accuracy and reliability of the same in light of the use to which the Client makes or intends to make of the Goods and / or Services.
3. Errors and Omissions
3.1. The Client acknowledges and accepts that the Supplier shall, without prejudice, accept no liability in respect of any alleged or actual error(s) and / or omission(s):
(a) resulting from an inadvertent mistake made by the Supplier in the formation and / or administration of this Contract; and / or
(b) contained in / omitted from any literature (hard copy and / or electronic) supplied by the Supplier in respect of the Services.
3.2. In the event such an error and / or omission occurs in accordance with clause 4.1, and is not attributable to the negligence and / or wilful misconduct of the Supplier, the Client shall not be entitled to treat this Contract as repudiated nor render it invalid.
4.1. At the Supplier’s sole discretion the Price shall be either:
(a) as indicated on any invoice provided by the Supplier to the Client; or
(b) the Price as at the date of Delivery of the Goods according to the Supplier’s current price list; or
(c) the Supplier’s quote price (subject to clause 6.2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.
4.2. The Supplier reserves the right to change the Price:
(a) if a variation to the Goods and/or Services is requested; or which are to be supplied is requested; or
(b) where additional Services are required due to the discovery of hidden or unidentifiable difficulties (including, without limitation, poor weather conditions, accessibility to the site, obscure site defects, safety considerations and / or health hazards, prerequisite work by any third party not being completed or hidden pipes or wiring, etc.) which are only discovered on commencement of the Services; or
(c) in the event of increases to the Supplier in the cost of labour or materials which are beyond the Supplier’s control.
4.3. Variations are to be made in writing, where possible. If the variation is not in writing this does not preclude the Supplier from invoicing for the variation. The Client shall be required to respond to any variation submitted by the Supplier within ten (10) working days.
4.4. Payment for all variation will be subject to the provisions of clause 4.2-4.3.
5.1. Time for payment for the Goods/Services being of the essence, the Price will be payable by the Client on the date/s determined by the
Supplier, which is:
(a) The due date for Payment as set out in the Contract or Invoice documentation between the Client and Supplier; or Qubik TMC Limited – Terms & Conditions of Trade
(b) If no other date is specified, the 20th of the month following the month in which the Goods and/or Services are supplied.
5.2. The Supplier may in its discretion allocate any payment received from the Client towards any invoice that the Supplier determines and may do so at the time of receipt or at any time afterwards. On any default by the Client the Supplier may re-allocate any payments previously received and allocated. In the absence of any payment allocation by the Supplier, payment will be deemed to be allocated in such manner as preserves the maximum value of the Supplier’s Purchase Money Security Interest (as defined in the PPSA) in the Goods.
5.3. The Client shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Client by the Supplier nor to withhold payment of any invoice because part of that invoice is in dispute.
5.4. Unless otherwise stated the Price does not include GST.
6. Default on Payment
6.1. Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5 %) per calendar month (and at the Supplier’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
6.2. All expenses, disbursements and legal costs incurred by the Supplier in the enforcement of any rights contained in these Terms and Conditions shall be paid by the Customer including all solicitor’s fees and/or debt collection agency fees.
6.3. Further to any other rights or remedies the Supplier may have under this Contract, if a Client has made payment to the Supplier, and the transaction is subsequently reversed, the Client shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by the Supplier under this clause 22 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Client’s obligations under this Contract.
6.4. Without the prejudice to the Supplier’s other remedies at law the Supplier shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to the Supplier shall, whether or not due for payment, become immediately payable if:
(a) any money payable to the Supplier becomes overdue, or in the Supplier’s opinion the Client will be unable to make a payment when
it falls due;
(b) the Client has exceeded any applicable credit limit provided by the Supplier;
(c) the Client 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
(d) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.
7. Delivery of the Goods
7.1. Delivery (“Delivery”) of the Goods is taken to occur at the time that:
(a) the client or the Client’s nominated carrier takes possession of the Goods at the Supplier’s address; or
(b) the Supplier (or the Supplier’s nominated carrier) delivers the Goods to the Client’s nominated address even if the Client is not present at the address.
7.2. The Supplier may deliver the Goods in separate instalments.
8.1. The Client shall ensure that the Supplier has clear and free access to the work site at all times to enable them to undertake the Services (including carrying out site inspections, gain signatures for required documents, and for the delivery and installation of the Goods). The Supplier shall not be liable for any loss or damage to the site (including, without limitation, damage to pathways, driveways and concreted or paved or grasses areas) unless due to the negligence of the Supplier.
9.1. Risk of damage to or loss of the Goods passes to the Client on Delivery.
9.2. If the Client requests the Supplier to leave Goods outside the Supplier’s premises for collection or to deliver the Goods to an unattended location then such Goods shall be left at the Client’s sole risk.
9.3. Where the Supplier is to install the Goods, the Client warrants that the structure of the premises or equipment in or upon which these Goods are to be installed or erected is sound and will sustain the installation and work incidental thereto and the Supplier shall not be liable for any claims, demands, losses, damages, costs and expenses howsoever caused or arising should the premises or equipment be unable to accommodate the installation.
9.4. The Supplier Shall:
(a) not be liable for any defect or damage resulting from incorrect or faulty installation carried out by any other third party.
(b) be entitled to rely on the accuracy of any plans, specifications, and other information provided by the Client. The Client acknowledges and agrees that in the event that any of this information provided by the Client is inaccurate, the Supplier accepts no responsibility for any loss, damages, or costs however resulting from these inaccurate plans, specifications or other information.
Qubik TMC Limited – Terms & Conditions of Trade
10. PSA, Mycoplasma Bovis diseases
10.1. The Client agrees that if Pseudomonas syringae pv. actinidiae (Psa), Mycoplasma Bovis or other notifiable diseases is present at the premises, it is the Client’s responsibility to inform the Supplier of the same. The Client must provide the Supplier with the appropriate facilities to comply with local decontamination / containment regulations.
11. Underground Locations
11.1. Prior to the Supplier commencing any work the Client must advise the Supplier of the precise location of all underground services on the site and clearly mark the same. The underground mains & services the Client must identify include, but are not limited to, electrical services, gas services, sewer services, pumping services, sewer connections, sewer sludge mains, water mains, irrigation pipes, telephone cables, fibre optic cables, oil pumping mains, and any other services that may be on site.
11.2. Whilst the Supplier will take all care to avoid damage to any underground services the Client agrees to indemnify the Supplier in respectof all and any liability claims, loss, damage, costs and fines as a result of damage to services not precisely located and notified as per
12. Compliance with Laws
12.1. The Client and the Supplier shall comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities that may be applicable to the Services.
12.2. The Client shall obtain (at the expense of the Client) all licenses and approvals that may be required for the Goods and Services.
13.1. The Supplier and the Client agree that ownership of the Goods shall not pass until:
(a) the Client has paid the Supplier all amounts owing to the Supplier; and
(b) the Client has met all of its other obligations to the Supplier.
13.2. It is further agreed that until ownership of the Goods passes to the Client in accordance with clause 13.1:
(a) the Client is only a bailee of the Goods and must return the Goods to the Supplier on request;
(b) the Client holds the benefit of the Client’s insurance of the Goods on trust for the Supplier and must pay to the Supplier the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed;
(c) the Client must not sell, dispose, or otherwise part with possession of the Goods other than in the ordinary course of business and for market value. If the Client sells, disposes or parts with possession of the Goods then the Client must hold the proceeds of any such act on trust for the Supplier and must pay or deliver the proceeds to the Supplier on demand;
(d) the Client should not convert or process the Goods or intermix them with other Goods but if the Client does so then the Client holds the resulting product on trust for the benefit of the Supplier and must sell, dispose or return the resulting product to the Supplier as it so directs;
(e) the Client irrevocably authorises the Supplier to enter any premises where the Supplier believes the Goods are kept and recover possession of the Goods;
(f) the Supplier may recover possession of any Goods in transit whether or not Delivery has occurred;
(g) the Client shall not charge or grant an encumbrance over the Goods nor grant nor otherwise give away any interest in the Goods while they remain the property of the Supplier;
(h) the Supplier may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Client.
14. Personal Property Securities Act 1999 (“PPSA”)
14.1. Upon assenting to these terms and conditions in writing the Client 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 Goods and / or collateral (account) – being a monetary obligation of the Client to the Supplier for Services – that have previously been supplied and that will be supplied in the future by the Supplier to the Client.
14.2. The Client 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 Supplier 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 Supplier for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register or releasing any Goods charged thereby;
(c) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods and / or collateral (account) in favour of a third party without the prior written consent of the Supplier; and
(d) immediately advise the Supplier of any material change in its business practices of selling the Goods which would result in a change in the nature of proceeds derived from such sales.
14.3. The Supplier and the Client agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms and conditions.
14.4. The Client waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA.
14.5. Unless otherwise agreed to in writing by the Supplier, the Client waives its right to receive a verification statement in accordance with section 148 of the PPSA.
Qubik TMC Limited – Terms & Conditions of Trade
14.6. The Client shall unconditionally ratify any actions taken by the Supplier under clauses 16.1 to 16.5.
14.7. Subject to any express provisions to the contrary (including those contained in this clause 16), nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.
15. Security and Charge
15.1. In consideration of the Supplier agreeing to supply the Goods, the Client charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Client either now or in the future, to secure the performance bythe Client of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
15.2. The Client indemnifies the Supplier from and against all the Supplier’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising the Supplier’s rights under this clause.
15.3. The Client irrevocably appoints the Supplier and each director of the Supplier as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 17 including, but not limited to, signed any document on the Client’s behalf.
16.1. The Client shall inspect the Goods on Delivery and shall within seven (7) days of delivery (time being of the essence) notify the Supplier of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Client shall afford the Supplier an opportunity to inspect the Goods within a reasonable time following Delivery if the Client believes the Goods are defective in any way. If the Client shall fail to comply with these provisions the Goods shall be presumed to be free from any defect or damage. For defective Goods, which the Supplier has agreed in writing that the Client is entitled to reject, the Supplier’s liability is limited to either (at the Supplier’s discretion) replacing the Goods or repairing the Goods.
16.2. Goods will not be accepted for return other than in accordance with 18.1 above, and provided that:
(a) the Supplier has agreed in writing to accept the return of the Goods; and
(b) the Goods are returned at the Client’s cost within thirty-one (31) days of the Delivery date; and
(c) the Supplier will not be liable for Goods which have not been stored or used in a proper manner; and
(d) the Goods are returned in the condition in which they were delivered and with all packaging material, brochures and instruction
material in as new condition as is reasonably possible in the circumstances.
16.3. Subject to clause 16.1, non-stocklist items or Goods made to the Client’s specifications are not acceptable for credit or return.
17.1. Subject to the conditions of warranty set out in clause 17.2 the Supplier warrants that if any defect in any workmanship of the Supplier becomes apparent and is reported to the Supplier within twelve (12) months of the date of Delivery (time being of the essence) then the Supplier with either (at the Supplier’s sole discretion) replace or remedy the workmanship.
17.2. The conditions applicable to the warranty given by clause 17.1 are:
(a) the warranty shall not cover any defect or damage which may be caused or partly caused by or arise through:
i. failure on the part of the Client to properly maintain any Goods; or
ii. failure on the part of the Client to follow any instructions or guidelines provided by the Supplier; or
iii. any use of the Goods otherwise than for any application specified on a quote or order form; or
iv. the continued use of any Goods after any defect becomes apparent or would have become apparent to a reasonably prudent operator or user; or
v. fair wear and tear, any accident or act of God.
(b) the warranty shall cease and the Supplier shall thereafter in no circumstances be liable under the terms of the warranty if the workmanship is repaired, altered or overhauled without the Supplier’s consent.
(c) in respect of all claims by the Supplier shall not be liable to compensate the Client for any delay in either replacing or remedying the workmanship or in properly assessing the Client’s claim.
17.3. For Goods not manufactured by the Supplier, the warranty shall be the current warranty provided by the manufacturer of the Goods. The Supplier 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 Goods.
17.4. In the case of second hand Goods, the Client acknowledges that the full opportunity to inspect the same has been provided and accepts the same with all faults and that no warranty is given by the Supplier as to the quality or suitability for any purpose and any implied warranty, statutory or otherwise, is expressly excluded. The Supplier shall not be responsible for any loss or damage to the Goods, or caused by the Goods, or any part thereof however arising.
18. Consumer Guarantees Act 1993
18.1. If the Client is acquiring Goods for the purposes of a trade or business, the Client acknowledges that the provisions of the Consumer Guarantees Act 1993 do not apply to the supply of Goods by the Supplier to the Client.
Qubik TMC Limited – Terms & Conditions of Trade
19. Intellectual Property
19.1. Where the Supplier has designed, drawn or developed Goods for the Client, then the copyright in any designs and drawing and documents shall remain the property of the Supplier. Under no circumstances may such designs, drawings or documents be used without the express written approval of the Supplier.
19.2. The Client warrants that all designs, specifications or instructions given to the Supplier will not cause the Supplier to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify the Supplier against any action taken by a third party against the Supplier in respect of any such infringement.
19.3. The Client agrees that the Supplier may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings or Goods which the Supplier has created for the Client.
20.1. Without prejudice to any other remedies the Supplier may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions the Supplier may suspend or terminate the supply of Goods to the Client. The Supplier will not be liable to the Client for any loss or damage the Client suffers because the Supplier has exercised its rights under this clause.
20.2. The Supplier may cancel any contract to which these terms and conditions apply or cancel Delivery of Goods at any time before the Goods are delivered by giving written notice to the Client. On giving such notice the Supplier shall repay to the Client any money paid by the Client for the Goods. The Supplier shall not be liable for any loss or damage whatsoever arising from such cancellation.
20.3. In the event that the Client cancels Delivery of Goods the Client shall be liable for any and all loss incurred (whether direct or indirect) by the Supplier as a direct result of the cancellation (including, but not limited to, any loss of profits).
20.4. Cancellation of orders for Goods made to the Client’s specifications, or for non-stocklist items, will definitely not be accepted once production has commended, or an order has been placed.
21.1. All email, documents, imaged or other recorded information held or used by the Supplier is Personal Information as defined and referred to in clause 21.3 and therefore considered confidential. The Supplier acknowledges its obligation in relation to the handling, use, disclosure and processing of Personal Information pursuant to the Privacy Act 2020 (“the Act”).
21.2. Notwithstanding clause 21.1, privacy limitations will extend to the Supplier in respect of Cookies where transactions for purchasers / orders transpire directly from the Supplier’s website. The Supplier agrees to display reference to such Cookies and / or similar tracking technologies, such as pixels and web beacons (if applicable), such technology allows the collection of Personal Information such as the Client’s:
(a) IP address, browser, email client type and other similar details;
(b) tracking website usage and traffic; and
(c) reports are available to the Supplier when the Supplier sends an email to the Client, so the Supplier may collect and review that information (“collectively Personal Information”).
In order to enable / disable the collection of Personal Information by way of Cookies, the Client shall have the right to enable / disable the Cookies first by selecting the option to enable / disable, provided on the website prior to proceeding with a purchase / order via the Supplier’s website.
21.3. The Client authorised the Supplier or the Supplier’s agent to:
(a) access, collect, retain and use any information about the Client; for the purpose of assessing the Client’s creditworthiness or for the purpose of marketing products and services to the Client.
(b) disclose information about the Client, whether collected by the Supplier from the Client directly or obtained by the Supplier 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 Client.
21.4. Where the Client is an individual the authorities under clause 21.3 are authorities or consents for the purposes of the Privacy Act 2020.
21.5. The Client shall have the right to request the Supplier for a copy of the Personal Information about the Client retained by the Supplier and the right to request the Supplier to correct any incorrect Personal Information about the Client held by the Supplier.
22. Service of Notices
22.1. Any written notice given under this Contract shall be deemed to have been given and received:
(a) by handing the notice to the other party, in person;
(b) by leaving it at the address of the other party as stated in this Contract;
(c) by sending it by registered post to the address of the other party as stated in this Contract;
(d) if set by facsimile transmission to the fax number of the other party as stated in this Contract (if any), on receipt of confirmation of the transmission;
(e) if sent by email to the other party’s last known email address.
22.2. Any notice that is posted shall be deemed to have been served, unless the contrary is shown, at the time when by the ordinary course of post, the notice would have been delivered.
Qubik TMC Limited – Terms & Conditions of Trade
23.1 Except as otherwise provided by law the Supplier shall not be liable for:
(a) Any loss or damage of any kind whatsoever including consequential loss whether suffered or incurred by the Client or any other person and whether in contract or tort (including negligence) or otherwise and irrespective of whether such loss or damage arises directly or indirectly from Work provided by the Supplier to the Client; and
(b) The Client shall indemnify the Supplier against all claims and loss of any kind whatsoever however caused or arising and without limiting the generality of the foregoing whether caused or arising as a result of the negligence of the Supplier or otherwise brought by any person in connection with any matter, act, emission or error by the Supplier its agents or employees in connection with the Work.
24.1. The failure by either party to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect that party’s right to subsequently enforce that provision. 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.
24.2. 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.
24.3. The Supplier shall be under no liability whatsoever to the Client for any indirect and / or consequential loss and / or expense (including loss of profit) suffered by the Client arising out of a breach of by the Supplier of these terms and conditions (alternatively the Supplier’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Goods).
24.4. The Supplier may elect to subcontract out any part of the Services but shall not be relieved from any liability or obligation under this Contract by so doing. Furthermore, the Client agrees and understands that they have no authority to give any instruction to any of the Supplier’s sub-contractors without the authority of the Supplier.
24.5. The Client agrees that the Supplier may amend their general terms and conditions for subsequent future contracts with the Client by disclosing such to the Client in writing. These changes shall be deemed to take effect from the date on which the Client accepts such changes, or otherwise at such time as the Client makes a further request for the Supplier to provide Goods to the Client.
24.6. Neither Party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm, global pandemic or other event beyond the reasonable control of either party.
24.7. Both parties warrant that they have the power to enter into this Contract and have obtained all necessary authorisations to allow them to do so, they are not insolvent and that this Contract creates binding and valid legal obligations on them.
24.8. If the Client is a company or trust the directors or trustees signing this contract, in consideration for the Supplier agreeing to supply products and grant credit to the Client at their request, also sign this contract in their personal capacity and jointly and severally personally undertake as principle debtors to the Supplier the payment of any and all monies now or hereafter owed by the Client to the Supplier and indemnify the Supplier against non-payment by the client. Any personal liability of a signatory hereto shall not exclude the client in any way whatsoever from the liabilities and obligations contained in this contract. The signatories and the Client shall be jointly and severally liable under the terms and conditions of this contract for the payment of all sums due hereunder.