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Ultraflex Technologies Limited – Terms & Conditions

While it might feel a bit time-consuming to read the fine print, we do believe it is the best way to manage expectations and avoid any surprises. Our terms of trade set out what we will deliver to you and what we expect from you. The last thing we want is a mismatch in understanding and a poor outcome for you, the consumer.

We believe in providing great service and we take pride in our standards. The terms of trade below serve as the criteria for all of the work we carry out. These terms override any agreements made in person, over the telephone, or in any other communication.

When you ask UltraFlex Technologies Limited to carry out work on your behalf, you agree to uphold your obligations under these terms of trade.

If you have any questions, please contact us. If you are unhappy with the work we provide, or have any problems or comments, please let us know immediately. We will do our best to fix any problems right away, if you do not give us feedback or if you delay payment, it makes it difficult for us to put things right.

We take pride in what we do and would love for you to use us again and tell your friends.

 

1.     Definitions:

1.1. The following definitions shall apply to these terms of trade unless the context requires otherwise.

1.2. “Ultraflex Technologies”, “Ultraflex” and “UFX” means Ultraflex Technologies Limited, its successors and assignees or any person acting on behalf of and with the authority of Ultraflex Technologies Limited.

1.3. Customer” means the person/s ordering the Works as specified in any invoice, document or order, and if there is more than one Customer is a reference to each Customer jointly and severally.

1.4. “Works” means all Works or Materials supplied by UFX to the Customer at the Customer’s request from time to time (where the context so permits the terms ‘Works’ or ‘Materials’ shall be interchangeable for the other).

1.5. “Price” means the Price payable for the Works as agreed between UFX and the Customer in accordance with clause 5 below.

1.6. Goods” means the goods supplied to the Customer by UFX which are described by item or indicated on the invoice associated with those goods. This also includes any packing or delivery slip supplied by UFX in respect of the goods. (where the context so permits the terms ‘goods’ or ‘works’ or ‘services’ shall be interchangeable for the other).

1.7. PPSA” means the Personal Property Securities Act 1999 and associated regulations, as amended from time to time.

1.8. PPSR” means the Personal Property Securities Register under the PPSA.

2.     Acceptance

2.1. The Customer is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Customer places an order for or accepts delivery of any Works.

2.2. These terms and conditions may only be amended with Ultraflex Technologies consent in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the Customer and UFX.

2.3. The Customer acknowledges and accepts that the supply of Materials for accepted orders may be subject to availability and if, for any reason, Materials are not or cease to be available, UFX reserves the right to vary the price with alternative materials as per clause 5.2. UFX also reserves the right to halt all Works until such time as UFX and the Customer agree to such changes.

2.4. Where UFX gives advice, recommendations, information, assistance or service to the Customer or the Customers agent, regarding the Materials or Works then it is given in good faith and UFX shall not be liable in any way whatsoever for any damages, losses or costs however arising resulting from the Customer relying on the same.

2.5. The Customer acknowledges that scaffolding is not included in the quoted Price unless specified in writing.

2.6. The Customer and/or Contractor accept, and acknowledge its obligation to provide all contract Works insurance unless otherwise agreed to in writing prior to commencement of the Works.

3.     Authorised Representatives

3.1. Unless otherwise limited as per clause 3.2 the Customer agrees that should the Customer introduce any third party to UFX as the Customer’s duly authorised representative, that once introduced that person shall have the full authority of the Customer to order any Materials or Works on the Customer’s behalf and/or to request any variation to the works on the Customer’s behalf (such authority to continue until all requested works have been completed or the Customer otherwise notifies UFX in writing that said person is no longer the Customer’s duly authorised representative).

3.2. In the event that the Customer’s duly authorised representative as per clause 3.1 is to have only limited authority to act on the Customer’s behalf then the Customer must specifically and clearly advise UFX in writing of the parameters of the limited authority granted to their representative.

3.3. The Customer specifically acknowledges and accepts that they will be solely liable to UFX for all additional costs incurred by UFX (including UFX’s profit margin) in providing any works, materials, services or variation/s requested by the Customer’s duly authorised representative (subject always to the limitations imposed under clause 3.2 (if any)).

4.     Change in Control

4.1. The Customer shall give UFX not less than fourteen (14) days prior written notice of any proposed change of ownership of the Customer and/or any other change in the Customer’s details (including but not limited to, changes in the Customer’s name, address, contact phone or fax number/s, or business practice). The Customer shall be liable for any loss incurred by UFX as a result of the Customer’s failure to comply with this clause.

5.     Price and Payment

5.1. At UFX’s sole discretion the Price shall be either:

a)     as indicated on invoices provided by UFX to the Customer in respect of Works performed or Materials supplied; or

b)     UFX’s quoted Price (subject to clause 5.2) which shall be binding upon UFX provided that the Customer shall accept UFX’s quotation in writing within thirty (30) days.

5.2. UFX reserves the right to change the Price:

a)     if a variation to the Materials which are to be supplied is requested; or

b)     if a variation to the Works originally scheduled (including any applicable plans or specifications) is requested; or

c)     where additional Works are required due to the discovery of hidden or unidentifiable difficulties (including, but not limited to, hard rock barriers below the surface, iron reinforcing rods in concrete, hidden pipes and wiring in walls or poorly prepared surfaces etc.) which are only discovered on commencement of the Works;

d)     Or in the event of increases to UFX in the cost of labour or materials which are beyond UFX’s control.

e)     Where a discount is administered at our discretion. UFX will make the Customer aware at the Customers request if there discount is still valid. These discounts may be revoked and the full amount may be charged to the Customer if an invoice remains unpaid for more than 20 days or any other agreed date.

5.3. At UFX’s sole discretion a deposit may be required upon request.

5.4. Time for payment for the Works being of the essence, the Price will be payable by the Customer on the date/s determined by UFX which may be:

a)     on completion of the Works; or

b)     By way of progress payments in accordance with UFX’s specified progress payment schedule. Such progress payment claims may include the reasonable value of authorised variations and the value of any Materials delivered to the worksite but not yet installed;

c)     The date specified on any invoice or other form as being the date for payment; or

d)     Failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Customer by UFX

5.5. Payment may be made by cash, cheque, bank cheque, electronic/on-line banking, or by any other method as agreed to between the Customer and UFX.

5.6. No allowance has been made in the Price for the deduction of retentions unless agreed to in writing prior to the Works commencing. In the event that retentions are made, UFX reserves the right to treat retentions as placing the Customer’s account into default.

5.7. Unless otherwise stated the Price does not include GST. In addition to the Price the Customer must pay to UFX an amount equal to any GST UFX must pay for any supply by UFX under this or any other agreement for the sale of the Materials. The Customer must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Customer pays the Price. In addition the Customer must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.

5.8. Account Holders

a)     Account Holders are defined by completion and acceptance of the “UFX credit application form”

b)     Account Holders shall pay for the goods and services no later than the 20th of the following month following the date of the invoice or as may otherwise be required by UFX.

c)     UFX may at any time in its sole discretion withdraw the provision of credit to the Customer.

d)     In the event of any default the full amount owing to UFX shall immediately become due and payable.

e)     UFX may take immediate action if the Customer is in default under any agreement with UFX or commits an act of insolvency or bankruptcy, goes into liquidation or receivership, enters into a creditor’s composition or has its credit standing impaired in any way. If the Customer fails to pay the amount due on or before the due date UFX (without prejudice to its other rights and remedies) shall be entitled to charge interest at the rate of 2.5% per month compounded monthly on the 20th of each month on the outstanding balance.

6.     Delivery of the Works

6.1. Subject to clause 6.2 it is UFX’s responsibility to ensure that the Works start as soon as it is reasonably possible.

6.2. The Works commencement date will be put back and the completion date extended by whatever time is reasonable in the event that UFX claims an extension of time (by giving the Customer written notice) where completion is delayed by an event beyond UFX’s control, including but not limited to any failure by the Customer to:

a)     make a selection; or

b)     have the site ready for the Works; or

c)     notify UFX that the site is ready; or

d)     Where the Works are delayed by either the Customer or any other third party.

6.3. The Customer acknowledges and accepts that UFX reserves the right to charge for delivery based on either a local fee, UFX’s hourly rate for time involved in traveling to the worksite and/or by the kilometre from the time that the Seller leaves their premises or from the last designated job, unless otherwise agreed between UFX and the Customer, all such costs will be shown as an extra on the invoice.

a)     If the Customers property is located outside of normal travel routes (25km radius), you may be charged for the time it takes for the contractor to travel back to the office/workshop. If it is more than 30 minutes, you may be charged for the extra time it takes the contractor to reach their destination. We as a firm believe that it is good practice to pay the contractor when they are traveling for more than 30 minutes. The exception to this is normal travel to and from home in peak motorway traffic. This condition usually applies to work outside of the city.

b)     If in the course of undertaking work for the customer, we are required to pay for parking or any other vehicle travel costs such as Tolls or permits, UFX reserves the right to forward these costs to the customer at UFX’s discretion.

6.4. UFX may deliver the Works by separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.

6.5. Any time or date given by UFX to the Customer is an estimate only. UFX shall not be liable for any loss or damage whatsoever due to failure by UFX to deliver the Works (or any part of them) promptly or at all, where due to circumstances beyond the reasonable control of UFX.

6.6. The Customer acknowledges and accepts that UFX reserves the right to charge for any compliance documentation relevant to the works completed. This shall be shown on the invoice as a separate charge or built into a service charge.

6.7. UFX offers a free quoting service: this covers smaller jobs and does not cover any additional designing or consultation services offered.

a)     If Works is requested by the customer to start on the same visit as the quote UFX reserves the right to charge for the travel to that job.

6.8. If, in the course of a job, the Customer requests UFX to do work which falls outside of normal working hours, UFX reserves the right to charge the Customer additional fees. If it has been arranged as a call-out, call-out fees will be applied. If not, additional fees will be applied to cover the overtime rates.

7.     Risk

a)     If UFX retains ownership of the Materials under clause 13 then;

b)     Where UFX is supplying Materials only, all risk for the Materials shall immediately pass to the Customer on delivery and the Customer must insure the Materials on or before delivery.

c)     Delivery of the Materials shall be deemed to have taken place immediately at the time that either;

i.        The Customer or the Customer’s nominated carrier takes possession of the Materials at UFX’s address; or

ii.       The Materials are delivered by UFX or UFX’s nominated carrier to the Customer’s nominated delivery address (even if the Customer is not present at the address).

d)     Where UFX is to both supply and install Materials then UFX shall maintain a contract works insurance policy until the Works are completed. Upon completion of the Works all risk for the Works shall immediately pass to the Customer.

7.2. Notwithstanding the provisions of clause 7.1 if the Customer specifically requests UFX to leave Materials outside UFX’s premises for collection or to deliver the Materials to an unattended location then such materials shall always be left at sole risk of the Customer and it shall be the Customer’s responsibility to ensure the Materials are insured adequately or at all. In the event that such Materials are lost, damaged or destroyed then replacement of the Materials shall be at the Customer’s expense.

7.3. Where UFX is required to install the Materials the Customer warrants that the structure of the premises or equipment in or upon which these Materials are to be installed or erected is sound and will sustain the installation and work incidental thereto and UFX shall not be liable for any claims, demands, losses, damages, costs and expenses howsoever caused or arising in connection with the installation and work incidental thereto.

7.4. The Customer acknowledges that Materials supplied may exhibit variations in shade, colour, texture, surface and finish, and may fade or change colour over time. UFX will make every effort to match batches of product supplied in order to minimise such variations but shall not be liable in any way whatsoever where such variations occur.

7.5. The Customer acknowledges that UFX is only responsible for parts that are replaced by UFX and that in the event that other parts/Materials, subsequently fail, the Customer agrees to indemnify UFX against any loss or damage to the Materials, or caused by the Materials, or any part thereof howsoever arising (including, but not limited to, loss of perishables, flooding and/or damage to clothing).

8.     Electrical Risk

8.1. The Customer accepts and acknowledges that UFX shall not accept any responsibility for any damage that may arise during the installation of light switches, Power points or other outlets in the event that any third party contractor employed by the Customer has removed any or all reference to the positioning of light switches, Power points or other outlets by either gibing or plastering the designated area. The Customer accepts that installation of light switches will then be at the sole discretion of UFX. If the Customer believes that they have any claim in relation to Works undertaken by that third party then said claim must be made against the third party contractor in the first instance.

8.2. In the event the Customer does not provide a proper electrical plan or scope of works and the costs associated with doing the electrical works increase, then these costs shall be the responsibility of the Customer.

8.3. In the event the Customer requests UFX to use their discretion in relation to the placement and positioning of any electrical components (including, but not limited to, light fittings and light switches) due to the absence of an electrical plan, and the Customer is not satisfied with the choice of placement or position, then UFX shall not be held liable for any loss, damages or costs howsoever arising from UFX’s decisions in relation to the same.

8.4. The Customer acknowledges that UFX requires reasonable notice in the event that the Customer requires any individual stage of the works to be completed by a certain date. UFX considers that such reasonable notice period be no less than seven (7) days. In the event that the Customer requires any works to be completed in less than that period then the Customer shall be liable for all additional costs incurred by UFX in so doing. UFX shall have no liability to the Customer should they be unable to procure materials to complete the works in accordance with the revised timeframe.

9.     Customer Responsibilities

9.1. It is the intention of UFX and agreed by the Customer that it is the responsibility of the Customer to provide and have erected scaffolding to enable the works to be undertaken (where in UFX’s opinion it is deemed necessary). It is also agreed that all scaffolding erected will comply with industry safety standards and that any person erecting the scaffolding shall be suitably qualified to ensure its safe and proper erection and where necessary shall hold a current certificate of competency and/or be fully licensed.

9.2. The Customer agrees to remove any furniture, furnishings or personal goods from the vicinity of the works and agrees that UFX shall not be liable for any damage caused to those items through the Customers failure to comply with this clause.

9.3. The Customer acknowledges that in the event asbestos or any other toxic substances are discovered at the worksite that it is their responsibility to ensure the safe removal of the same. The Customer further agrees to indemnify UFX against any costs incurred by UFX as a consequence of such discovery. Under no circumstances will UFX handle removal of asbestos product.

9.4. The Customer acknowledges that it is their responsibility to ensure that all Materials, plant or equipment which UFX is required to install (or to connect any of its Materials to) are of the correct type, size, rating, standard, quality, colour and finish, conform with all relevant New Zealand standards and local statutory requirements, and are as specified in the specifications, drawings and plans upon which UFX based the quotation on and therefore, the Customer agrees to indemnify UFX against any costs incurred by UFX in rectifying such errors if required.

9.5. UFX is not responsible for the removal of rubbish from or clean-up of the building/constructions site/s. This is the responsibility of the Customer or the Customer’s agent.

10.           Dimensions, Plans and Specifications

10.1.                      All customary building industry tolerances shall apply to the dimensions and measurements of the Materials unless UFX and the Customer agree otherwise in writing.

10.2.                      UFX shall be entitled to rely on the accuracy of any plans, specifications and other information provided by the Customer.

10.3.                      If the giving of an estimate or quotation for the supply of Materials involves UFX estimating measurements and quantities, it shall be the responsibility of the Customer to verify the accuracy of UFX’s estimated measurements and quantities, before the Customer places an order based on such estimate or accepts such quotation.

10.4.                      Should the Customer require any changes to UFX’s estimated measurements and quantities, the Customer shall request such changes in writing, in the case of an estimate before placing an order based on that estimate and in the case of a quotation before acceptance of that quotation.

11.           Access

11.1.                      The Customer shall ensure that UFX has clear and free access to the work site at all times to enable them to undertake the works. UFX shall not be liable for any loss or damage to the site (including, without limitation, damage to pathways, driveways and concrete or paved or grassed areas) unless due to the negligence of UFX.

12.           Underground Locations

12.1.                      Prior to UFX commencing any work the Customer must advise UFX of the precise location of all underground services on the site and clearly mark the same. The underground mains & services the Customer 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.

12.2.                      Whilst UFX will take all care to avoid damage to any underground services the Customer agrees to indemnify UFX in respect of all and any liability claims, loss, damage, costs and fines as a result of damage to services not precisely located and notified as per clause 12.1

13.           Title

13.1.                      UFX and the Customer agree that ownership of the Materials shall not pass until:

a)     the Customer has paid UFX all amounts owing to UFX; and

b)     The Customer has met all of its other obligations to UFX.

13.2.                      Receipt by UFX 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.

13.3.                      It is further agreed that:

a)     Until ownership of the Materials passes to the Customer in accordance with clause 13.1 that the Customer is only a Bailee of the Materials and unless the Materials have become fixtures must return the Materials to UFX on request.

b)     The Customer holds the benefit of the Customer’s insurance of the Materials on trust for UFX and must pay to UFX the proceeds of any insurance in the event of the Materials being lost, damaged or destroyed.

c)     The production of these terms and conditions by UFX shall be sufficient evidence of UFX’s rights to receive the insurance proceeds directly from the insurer without the need for any person dealing with UFX to make further inquiries.

d)     The Customer must not sell, dispose, or otherwise part with possession of the Materials other than in the ordinary course of business and for market value. If the Customer sells, disposes or parts with possession of the Materials then the Customer must hold the proceeds of any such act on trust for UFX and must pay or deliver the proceeds to UFX on demand.

e)     The Customer should not convert or process the Materials or mix them with other goods but if the Customer does so then the Customer holds the resulting product on trust for the benefit of UFX and must sell, dispose of or return the resulting product to UFX as it so directs.

f)      Unless the Materials have become fixtures the Customer irrevocably authorizes UFX to enter any premises where UFX believes the Materials are kept and recover possession of the Materials.

g)     UFX may recover possession of any Materials in transit whether or not delivery has occurred.

h)     The Customer shall not charge or grant an encumbrance over the Materials nor grant nor otherwise give away any interest in the Materials while they remain the property of UFX.

i)       UFX may commence proceedings to recover the Price of the Materials sold notwithstanding that ownership of the Materials has not passed to the Customer.

14.           Personal Property Securities Act 1999 (“PPSA”)

14.1.                      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 Materials previously supplied by UFX to the Customer (if any) and all Materials that will be supplied in the future by UFX to the Customer.

14.2.                      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 UFX may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register;

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

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

d)     Immediately advise UFX of any material change in its business practices of selling Materials which would result in a change in the nature of proceeds derived from such sales.

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

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

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

14.6.                      The Customer shall unconditionally ratify any actions taken by UFX under clauses 14.1 to 14.5.

15.           Security and Charge

15.1.                      In consideration of UFX agreeing to supply the Materials, the Customer 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 Customer either now or in the future, to secure the performance by the Customer of its obligations under these terms and conditions (including, but not limited to, the payment of any money).

15.2.                      The Customer indemnifies UFX from and against all UFX’s costs and disbursements including legal costs on a solicitor and own Customer basis incurred in exercising UFX’s rights under this clause.

15.3.                      The Customer irrevocably appoints UFX and each director of UFX as the Customer’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 15 including, but not limited to, signing any document on the Customer’s behalf.

16.           Customer’s Disclaimer

16.1.                      The Customer hereby disclaims any right to rescind, or cancel any contract with UFX or to sue for damages or to claim restitution arising out of any inadvertent misrepresentation made to the Customer by UFX and the Customer acknowledges that the Works are bought relying solely upon the Customer’s skill and judgment.

17.           Defects in Materials

17.1.                      The Customer shall inspect the Materials on delivery and shall within three (3) days of delivery (time being of the essence) notify UFX of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Customer shall afford UFX an opportunity to inspect the Materials within a reasonable time following delivery if the Customer believes the Materials are defective in any way. If the Customer shall fail to comply with these provisions the Materials shall be presumed to be free from any defect or damage. For defective Materials, which UFX has agreed in writing that the Customer is entitled to reject, UFX’s liability is limited to either (at UFX’s discretion) replacing the Materials or repairing the Materials.

17.2.                      Materials will not be accepted for return other than in accordance with 17.1 above.

18.           Warranties

18.1.                      To the extent permitted by statute, no warranty is given by UFX as to the quality or suitability of the Materials for any purpose and any implied warranty, is expressly excluded. UFX shall not be responsible for any loss or damage to the Materials or caused by the Materials, or any part thereof however arising.

19.           Consumer Guarantees Act 1993

19.1.                      If the Customer is acquiring Materials for the purposes of a trade or business, the Customer acknowledges that the provisions of the Consumer Guarantees Act 1993 do not apply to the supply of Materials by UFX to the Customer.

20.           Default and Consequences of Default

20.1.                      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 UFX’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.

20.2.                      If the Customer owes UFX any money the Customer shall indemnify UFX from and against all costs and disbursements incurred by UFX in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own Customer basis, UFX’s collection agency costs, and bank dishonour fees).

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

20.4.                      Without prejudice to UFX’s other remedies at law UFX shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to UFX shall, whether or not due for payment, become immediately payable if:

a)     any money payable to UFX becomes overdue, or in UFX’s opinion the Customer will be unable to make a payment when it falls due;

b)     the Customer becomes insolvent or bankrupt, 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.

21.           Dispute Resolution

21.1.                      All disputes and differences between the Customer and UFX touching and concerning this agreement shall be referred to arbitration under a single arbitrator agreed upon by both parties, or failing agreement, by two arbitrators (one to be appointed by each party) and their umpire (appointed by them prior to arbitration), such arbitration to be carried out in accordance with provisions of the Arbitration Act 1996.

22.           Compliance with Laws

22.1.                      The Customer and UFX shall comply with the provisions of all statutes, regulations, and bylaws of government, local and other public authorities that may be applicable to the works.

22.2.                      The Customer shall obtain (at the expense of the Customer) all licenses and approvals that may be required for the works.

22.3.                      The Customer agrees that the site will comply with any occupational health and safety laws relating to building/construction sites and any other relevant safety standards or legislation.

23.           Insurance

23.1.                      UFX shall have public liability insurance of at least $2m. It is the Customers responsibility to ensure that they are similarly insured.

24.           Cancellation

24.1.                      UFX may cancel any contract to which these terms and conditions apply or cancel delivery of Works at any time before the Works are commenced by giving written notice to the Customer. On giving such notice UFX shall repay to the Customer any sums paid in respect of the Price, less any amounts owing by the Customer to UFX for Works already performed. UFX shall not be liable for any loss or damage whatsoever arising from such cancellation.

24.2.                      In the event that the Customer cancels the delivery of Works the Customer shall be liable for any and all loss incurred (whether direct or indirect) by UFX as a direct result of the cancellation (including, but not limited to, any loss of profits).

24.3.                      Cancellation of orders for products made to the Customer’s specifications, mixed part and/or modified Materials or for non-stocklist items, will definitely not be accepted once production has commenced, or an order has been placed.

25.           Privacy Act 1993

25.1.                      The Customer authorizes UFX or UFX’s agent to:

a)     access, collect, retain and use any information about the Customer;

i.        (including any overdue fines balance information held by the Ministry of Justice) for the purpose of assessing the Customer’s creditworthiness; or

ii.       For the purpose of marketing products and services to the Customer.

b)     Disclose information about the Customer, whether collected by UFX from the Customer directly or obtained by UFX 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.

25.2.                      Where the Customer is an individual the authorities under clause 25.1 are authorities or consents for the purposes of the Privacy Act 1993.

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

26.           Unpaid UFX’s Rights

26.1.                      Where the Customer has left any item with UFX for repair, modification, exchange or for UFX to perform any other service in relation to the item and UFX has not received or been tendered the whole of any amounts of money owing to it by the Customer, UFX shall have, until all amounts of money owing to UFX are paid:

a)     a lien on the item; and

b)     the right to retain or sell the item, such sale to be undertaken in accordance with any legislation applicable to the sale or disposal of uncollected Materials.

26.2.                      The lien of UFX shall continue despite the commencement of proceedings or judgment for any amounts of money owing to UFX having been obtained against the Customer.

27.           Construction Contract Act 2002

27.1.                      The Customer hereby expressly acknowledges that:

a)     UFX has the right to suspend work within five (5) working days of written notice of its intent to do so if a payment claim is served on the Customer, and:

i.        the payment is not paid in full by the due date for payment and no payment schedule has been given by the Customer, or

ii.       a scheduled amount stated in a payment schedule issued by the Customer in relation to the payment claim is not paid in full by the due date for its payment; or

iii.     the Customer has not complied with an adjudicator’s notice that the Customer must pay an amount to UFX by a particular date; and

iv.     UFX has given written notice to the Customer of its intention to suspend the carrying out of construction work under the construction contract.

b)     if the Customer suspends work, it:

i.        is not in breach of contract; and

ii.       is not liable for any loss or damage whatsoever suffered, or alleged to be suffered, by the Customer or by any person claiming through the Customer; and

iii.     is entitled to an extension of time to complete the contract; and

iv.     Keeps its rights under the contract including the right to terminate the contract; and may at any time lift the suspension, even if the amount has not been paid or an adjudicator’s determination has not been complied with.

c)     if UFX exercises the right to suspend work, the exercise of that right does not:

i.        affect any rights that would otherwise have been available to the Customer under the Contractual Remedies Act 1979, or

ii.       Enable the Customer to exercise any rights that may otherwise have been available to the Customer under that Act as a direct consequence of UFX suspending work under this provision.

28.           General

28.1.                      The failure by UFX to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect UFX’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.

28.2.                      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.

28.3.                      UFX shall be under no liability whatsoever to the Customer for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by UFX of these terms and conditions (alternatively UFX’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Works).

28.4.                      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 UFX nor to withhold payment of any invoice because part of that invoice is in dispute.

28.5.                      UFX may license or sub-contract all or any part of its rights and obligations without the Customer’s consent.

28.6.                      The Customer agrees that UFX may amend these terms and conditions at any time. If UFX makes a change to these terms and conditions, then that change will take effect from the date on which UFX notifies the Customer of such change. The Customer will be taken to have accepted such changes if the Customer makes a further request for UFX to provide any Works to the Customer.

28.7.                      Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other events beyond the reasonable control of either party.

28.8.                      The Customer warrants that it has the power to enter into this agreement and has obtained all necessary authorisations to allow it to do so, it is not insolvent and that this agreement creates binding and valid legal obligations on it.

 

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