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Quality Concrete Services Limited – Trade Terms

The following terms (Trade Terms) apply to, are incorporated into, and govern every contracted entered into between QCS and you for the supply of Goods and/or Services at any time. 

  1. Definitions and Interpretation
CCAmeans the Construction Contracts Act 2002, as amended.
Construction Contracthas the meaning giving to this term in the CCA.
Customermeans the purchaser of any good or service from us and shall include any representative, agent or employee.
Goodsmeans goods supplied by QCS to the Customer under these Trade Terms, including construction materials.
GSTmeans goods and service tax chargeable, or to which a person may be liable, under the Goods and Services Tax Act 1985, and any penalties, additional tax or interest payable in respect thereof.
HSWAmeans the Health and Safety at Work Act 2015.
Ordermeans a contract between QCS and the Customer for QCS to provide Goods and/or Services, and includes where a Customer has accepted a Quote in writing.
PPSAmeans the Personal Property Securities Act 1999.
QCS, we, us or ourmeans Quality Concrete Services Limited.
Quotemeans a written offer from QCS to the Customer to provide Goods and/or Services.
Servicesmeans services supplied by QCS to the Customer under these Trade Terms.
Services Start Datemeans the date agreed by the parties in an Order, a Quote or otherwise for commencement of the Services.
Working Daymeans a day other than a Saturday or Sunday, or a statutory public holiday in Auckland.
  1. Formation of contract
    • These Trade Terms apply to all Goods or Services supplied by QCS. By placing an Order (which, including the acceptance of a Quote in writing) the Customer acknowledges that it is aware of the contents of, and agrees to be bound by, these Trade Terms.
    • The price of Goods and Services is as specified in an Order.
    • QCS may decline or cancel, in whole or in part, any Order in its sole discretion.
    • A Quote may be withdrawn or varied by QCS at any time before it has been accepted in writing by the Customer.
    • An estimate as to price or quantity in a Quote or Order is not binding on QCS.
    • A Quote does not give rise to a binding contract until the Customer places an Order within the expiry period specified in the Quote or which is subsequently accepted by QCS. Once a Quote has been accepted within its expiry period or an Order is otherwise accepted in writing by QCS, that Order, and these Trade Terms, will form a contract between the Customer and QCS.
    • Quotes given by QCS do not constitute an agreement or an obligation to supply in accordance with the Quote.
    • Quotes are available for acceptance for 30 days or for the period specified in a Quote. Acceptance of a Quote by a Customer in writing constitutes acceptance by the Customer of these Trade Terms.
    • Any variation, waiver or cancellation of any quotation or any amendment to terms or conditions of the Quote made by the Customer shall be of no effect unless accepted in writing by QCS.
  2. Price and GST
    • Prices are exclusive of GST unless specified to the contrary in a Quote.
    • QCS may increase the price as a result of any fluctuation that could not have been reasonably foreseen affecting the cost of materials or labour that occurs between date of the Order (including the Customer’s acceptance of the Quote) and the date of delivery of the Goods and/or Services.
    • Where QCS strikes rock during the performance of excavation Services, the Customer shall be liable for the costs of additional labour and hire of a rock breaker or other equipment.
    • Where the Services include the removal of materials from a site, the Customer shall be liable for any cost in disposing of contaminated materials.
    • Concrete cutting is made for expansion to prevent cracks. Decretive cuts can be requested by a Customer, but will be an additional cost and subject to agreement by QCS.
  3. Payment
    1. Deposit. A 50% deposit will be paid by the Customer:
      • by the Services Start Date; or
      • if the Services Start Date is not specified in writing, within 2 days of the Customer accepting the Quote, to covers the cost of preparation of the site, including but not limited to, labour, tipping fees, materials, digger use, truck use, consultancy fees. Should the contract be terminated during the preparation or after the preparation is complete this deposit will not be refunded.
    2. Final payment. Final payment is due on completion of the Services (where the concrete is laid, de-boxed and cut, determined by QCS, acting reasonably) or as specified in a Quote.
    3. Method of Payment. Payments (for the deposit, the final payment or otherwise) must be made electronically and directly into QCS’s ASB account: 12-3060-0362752-00
    4. Default. If the Customer defaults in payment of the any amount due to QCS, without limitation to other rights and remedies available to QCS at law:
      • in the case of any default or delay in payment of the 50% deposit, QCS may demand the full payment of the Quoted price before proceeding with any further Services;
      • the Customer must pay interest at a default interest rate being 8 % per annum on the monies unpaid from the due date for payment to the date of actual payment; and
      • the Customer must pay QCS’s enforcement costs for any action required by QCS to recover payment of any amount owing from the Customer (including, without limitation, debt collection fees, legal fees and any other administrative fees incurred).
    5. CCA. Where the nature of the Services is such that it is covered by the CCA and QSC has issued a payment claim in accordance with the CCA, the provisions of the CCA shall apply. In all other cases, if the Customer, acting reasonably, disputes and invoice, or part of an invoice, the Customer must give the reasons for withholding the disputed amount within twenty (20) working days from the date the invoice is provided and pay any undisputed amount by the due date.
    6. Right to suspend. If the Customer fails to make the payment that is due and payable in accordance with this clause 4 or it is reasonably evident to QCS that the Customer will default or delay in payment that becomes due and payable under the Order (such as, without limitation, where the Customer indicates in writing that they do not have funds to pay the full price), QCS may suspend or terminate the contract.
  1. Security
    • On signing these Trade Terms the Customer grants a continuing security interest in favour of QCS in all present and after acquired Goods as security for payment of all amounts owing, and the performance of all obligations, under any contract.
  2. The Customer acknowledges that QCS may, at the Customer’s cost, register its security interest in the Goods, and all of the Customer’s present and future rights in relation to the Goods and any proceeds, on the PPSA.
  3. The Customer shall provide all information and do all things including the execution of documents as QCS may require for the purpose of securing to QCS the Goods, the payment of all amounts owing and the performance of all of the Customer’s obligations under these Trade Terms, and for the purpose of ensuring that QCS has a perfected first ranking security interest in the Goods and any proceeds under the PPSA. The Customer shall give written notice to QCS of any change to its name at least 14 days before such change takes effect.
  4. The Customer waives its right to receive a copy of any verification statement under the PPSA and agrees that as between the Customer and QCS: (a) the Customer will have no rights under sections 114(1)(a), 116, 120(2) and 121 of the PPSA; and (b) any rights of QCS in addition to those in Part 9 of the PPSA shall continue to apply.
    • The Customer will not:
      • permit to subsist any other security interest in relation to the Goods; or
      • except in the normal course of business, sell, lease or dispose of, or permit the sale, lease or disposal of, the Goods.
    • In addition to any rights that QCS has under the PPSA, QCS shall have the right, as the Customer’s agent, at any time while any amounts owing by the Customer to QCS under these Trade Terms remains outstanding, to enter into any premises where Goods are stored and remove them without being responsible for any damage caused in doing so. You shall indemnify QCS for all such moneys and all costs, charges and expenses in repossessing Goods.
  5. Retention of title
    • Title in the Goods does not pass from QCS until QCS has received full payment in cleared funds for the Goods in accordance with clause 4 (together with an amount for GST, any accrued interest and any other amounts due in respect of the Goods).
    • Until title passes from QCS:
      • ownership of the Goods remains with QCS;
      • the Customer holds the Goods as bailee for QCS; and
      • the Customer must store the Goods separately from any other Goods and not commingle or mix the Goods with any other Goods or otherwise add to or alter the Goods in any way.
    • The Customer’s right to possession of the Goods shall cease if the Customer is in default under these Trade Terms or any contract.
  6. Risk
    • All risk of loss or damage in, or in relation to, Goods shall pass to the Customer upon:
      • where the Goods are concrete, when the Goods are discharged from the delivery truck agitator;
      • where the Goods are pre-cast Concrete, when the Goods arrive at entrance of the address specified in the Order; or
      • for all other Goods, when the Goods are delivered to the site or possession is given to a delivery carrier. It is the Customer’s responsibility to ensure that someone is at the site when Goods are delivered. For the avoidance of doubt, risk of loss or damage in, or in relation to, Goods shall pass to the Customer whether or not someone is at the site when Goods are delivered during normal business hours.
    • QCS reserves the right to deliver Goods in instalments and each instalment shall be a separate contract subject to the same terms as the main contract.
  7. Delivery and Access
    • Delivery shall be made at the place indicated on the Order. If the Customer fails or refuses to take or accept delivery, then the Goods shall be deemed to have been delivered when QCS was willing to deliver them.
    • QCS does not guarantee delivery and any time or date for delivery given by QCS is intended only as an estimate and QCS shall not be responsible for the consequences of delay or non-delivery however arising.
    • Where QCS is to deliver the Goods, the Customer shall:
      • provide QCSs with reasonable access to the site;
      • ensure that all necessary consents have been obtained, including from council and site owner;
      • advise QCS of any all health and safety requirements and any site specific safety requirements;
      • indemnify QCS for any damage caused by QCS as a result of delivering the Goods or performing the Services, including damage to footpaths, roads, and any other property, provided QCS has acted with reasonable skill and care.
  1. Cancellation of Orders
    • Returns for Goods that are not concrete will only be accepted where the Goods are returned within 48 hours of delivery.
    • The Customer may not cancel an Order without written agreement from QCS.
  2. Health and safety
    • QCS has not and will not assume any obligation as the Customer’s agent or otherwise which may be imposed upon the Customer from time to time pursuant to the HSWA arising out of these Trade Terms. QCS and the Client agree that in terms of the HSWA, neither QCS nor its representatives will not be responsible for the control of the workplace(s) at which the Services are provided.
    • Subject to clause 1 all Services carried out by QCS will adhere to the HSWA.
  3. Intellectual Property
    • The Customer acknowledges that all intellectual property rights in the Goods or arising out of the performance of the Services are, and shall remain, QCS’s property.
  4. Consumer Guarantees Act 1993 (CGA)
    • Where Goods or Services are supplied to the Customer for the purposes of a business, then, to the maximum extent permitted by law, the Customer agrees that:
      • the provisions of the CGA do not apply to the Goods or Services; and
      • sections 9, 12A, 13 and 14(1) of the Fair Trading Act 1986 do not apply.
    • Where the CGA applies the Customer shall have all the rights and remedies provided under the CGA.
  5. Warranty
    • To the extent permitted by law, QCS gives no warranty express or implied as to the quality, description or fitness for any particular purpose of the Goods and Services.
    • The Customer agrees that minor variations in colour or texture in the Goods from samples do not constitute a defect in the Goods and that QCS shall not be liable for any loss or damage suffered by the Customer as a result in such variation.
    • QCS does not guarantee:
      • the matching of concrete pebble mixes to anything current; or
      • the final concrete surfaces/textures or colour oxides as these are subject to batching mixtures, timing of batching and weather conditions.
    • QCS will take reasonable steps to try and prevent cracks forming in concrete, however QCS gives no warranty that the Goods, where concrete, will not crack.
    • Quotes are prepared by QCS on the basis of information provided by the Customer and QCS shall not liable for any loss or damage suffered by the Customer as a result of the Quote containing inaccurate information, or where information is omitted.
  6. Limitation of Liability
    • The parties acknowledge and agree that in no event will QCS or its officers, principals, employees, contractors or agents have any liability to the Customer arising out of or connection with these Trade Terms for:
      • damage caused to any hidden services underground when performing excavation Services;
      • cracking to concrete;
      • damage caused to any building, fence, garage, or chattel that is attached to the concrete and is damaged during removal of the concrete;
      • bad weather calls for concrete pouring days (however QCS will make reasonable efforts to assess the weather forecast through publicly available services such as Metservice);
      • any special, incidental, indirect, punitive or consequential damages, loss of profit, revenue, goodwill;
      • damages, in the aggregate, exceeding the value of the payments actually received by QCS from the Customer under these Trade Terms in the preceding 30 days; or
      • damages in respect of any claim made:
        • more than 30 days from the date the Customer becomes aware of the circumstances leading to that claim; or
        • more than 30 days after the relevant cause of action arises.
  1. Indemnity
    • The Customer indemnifies QCS from and against all liabilities, expenses, losses, damages and costs (including legal costs on a full indemnity basis whether incurred by or awarded against a party) including those associated with any third party claim, and whether arising under contract, tort (including negligence) or otherwise QCS or its directors, principals, employees, contractors or agents sustains or incurs directly or indirectly arising out of or resulting from any breach of these Trade Terms by the Customer.
  2. Disputes
    • If there is a dispute between the Parties in relation to these Trade Terms, or any matter arising from them, the parties will in good faith in the first instance use their best endeavours to resolve the dispute themselves.
    • Either party may at any time refer any dispute to adjudication in terms of Part 3 of the CCA.
  3. Waiver
    • To be effective, any waiver of all or any of the terms and conditions in any contract the Customer has with QCS must be in writing.
  4. Force Majeure
    • QCS shall take all reasonable steps to provide Goods and Services within stipulated timeframes agreed with the Customer. However, it will not be liable for any delay or failure to provide Goods or services if the provision of Goods or services is affected by matters outside of QCS’ control including but not limited to force majeure events such as strikes, lock outs, power cuts, third party interference, fire, flood, earthquake, acts of God or terrorism.
  5. Severance
    • If any of these Trade Terms or part thereof are held to be invalid, illegal, unenforceable or void for any reason or reasons, all of the remaining Trade Terms (or part thereof) shall remain in full force and effect.
  6. Variation
    • From time to time QCS may issue updated or amended these Trade Terms which shall be deemed to be accepted by the Customer following written notice to the Customer.
  7. Entire agreement
    • These Trade Terms constitutes the entire agreement between the parties and supersedes all prior agreements, understandings, negotiations, representations, and discussions, whether oral or written, of the parties.
  8. Jurisdiction
    • These Trade Terms are governed by the law of New Zealand and each party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts of New Zealand.

 

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