Glass Systems Limited - Terms & Conditions of Trade

 

1. Definitions

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 “GS” means Glass Systems Limited, its successors and assigns, or any person acting on behalf of and with the authority of Glass Systems Limited.

1.3 “Client” means the person/s, entities, or any person acting on behalf of and with the authority of the Client requesting GS to provide the Works 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) includes the Client’s executors, administrators, successors, and permitted assigns.

1.4 “Works” means all Works (including consultation, manufacturing, and/or installation services) or Materials supplied by GS to the Client at the Client’s request from time to time (where the context so permits the terms ‘Works’ or ‘Materials’ shall be interchangeable for the other).

1.5 “Worksite” means the address nominated by the Client to which the Materials are to be supplied by GS.

1.6 “Intended Use” means a product and the use thereof, for which the product is intended to be, or is reasonably likely to be, associated with the Works.

1.7 “Non-Conforming Building Product” means building products that are regarded as Non-Conforming for an Intended Use if, when associated with a building:

(a) the product is not, or will not be, safe; or

(b) does not, or will not, comply with the relevant regulatory provisions; or

1.8 “Price” means the Price payable (plus any Goods and Services Tax (“GST”) where applicable) for the Works as agreed between GS and the Client under clause 5 below.

2. Acceptance

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

2.2 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, the terms of this Contract shall prevail.

2.3 Any amendment to the terms and conditions contained in this Contract may only be amended in writing by the consent of both parties.

2.4 The Client acknowledges that the supply of Works on credit shall not take effect until the Client has completed a credit application with GS and it has been approved with a credit limit established for the account.

2.5 If the supply of Works requested exceeds the Client’s credit limit and/or the account exceeds the payment terms, GS reserves the right to refuse delivery.

2.6 If the Materials and/or Works provided by GS are the subject of an insurance claim that the Client has made, then the Client shall be responsible for the payment of any monies payable to the insurance company and agrees to honour their obligation for payment for such transactions invoiced by GS and shall ensure payment is made by the due date irrespective of whether the insurance claim is successful.

2.7 The Client agrees that they shall upon request from GS provide evidence that;

(a) they are the owner of the land and premises upon which the Works are to be undertaken; or

(b) where they are a tenant, that they have the consent of the owner for the Materials to be installed on the land and premises upon which the Works are being undertaken.

2.8 Where GS gives any advice, recommendation, information, assistance, or service provided by GS concerning Materials or Works supplied is given in good faith to the Client, or the Client’s agent and is based on GS’s knowledge and experience and shall be accepted without liability on the part of GS. Where such advice or recommendations are not acted upon then GS shall require the Client or their agent to authorise commencement of the Works in writing. GS shall not be liable in any way whatsoever for any damages or losses that occur after any subsequent commencement of the Works.

2.9 If GS is required to provide the Works urgently, which may require GS’s staff to work outside normal business hours (including but not limited to working, through lunch breaks, weekends, and/or Public Holidays) then GS reserves the right to charge the Client an urgent fee based on GS’s standard hourly labour rate, plus travel, plus Materials unless otherwise agreed between GS and the Client.

3. Authorised Representatives

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

3.2 If the Client’s duly authorised representative as per clause 3.1 is to have only limited authority to act on the Client’s behalf, then the Client must specifically advise GS in writing of the parameters of the limited authority granted to their representative.

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

4. Errors and Omissions

4.1 The Client acknowledges and accepts that GS 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 GS 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 GS in respect of the Works.

4.2 In the event such an error and/or omission occurs under clause 4.1 and is not attributable to the negligence and/or wilful misconduct of GS; the Client shall not be entitled to treat this Contract as repudiated nor render it invalid.

5. Price and Payment

 

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

(a) as indicated on invoices provided by GS to the Client in respect of Works performed or Materials supplied; or

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

5.2 GS 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, poor weather, limitations to accessing the Worksite, unforeseen structural repairs, incorrect measurements, plans and/or specifications provided by the Client, safety considerations, prerequisite work by any third party not being completed, remedial work required due to existing workmanship being of poor quality or non-compliant to the building code, hard rock barriers below the surface, latent soil conditions, iron reinforcing rods in concrete or hidden pipes and wiring in walls, etc.) which are only discovered on commencement of the Works; or

(d) in the event of increases to GS in the cost of labour or Materials (including but not limited to overseas transactions that may increase because of variations in foreign currency rates of exchange and/or international freight and insurance charges) which are beyond GS’s control.

5.3 Variations will be charged based on GS’s quotation, and will be detailed in writing, and shown as variations on GS’s invoice. The Client shall be required to respond to any variation submitted by GS within ten (10) working days. Failure to do so will entitle GS to add the cost of the variation to the Price. Payment for all variations must be made in full at the time of their completion.

5.4 At GS’s sole discretion a non-refundable deposit may be required.

5.5 Time for payment for the Works being of the essence, the Price will be payable by the Client on the date/s determined by GS, which may be:

(a) on completion of the Works; or

(b) on or before delivery of the Materials;

(c) by way of progress payments following GS’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;

(d) for certain approved Clients, due twenty (20) days following the end of the month in which a statement is posted to the Client’s address or address for notices;

(e) the date specified on any invoice or other form as being the date for payment; or

(f) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Client by GS.

5.6 At the agreement of both parties, payment of the Price may be subject to retention by the Client of an amount (hereafter called the "Retention Money"), being a set amount or equal to a percentage of the Price. The Client shall hold the Retention Money for the agreed period following completion of the Works during which time all Works are to be completed and/or all defects are to be remedied. Any Retention Money applicable to this Contract is to be dealt with under Subpart 2A - sections 18(a) to 18(i) of the Construction Contracts Amendment Act 2015.

5.9 GS may at its discretion allocate any payment received from the Client towards any invoice that GS determines and may do so at the time of receipt or at any time afterward.

5.10 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 GS nor to withhold payment of any invoice because part of that invoice is in dispute unless the request for payment by GS is a claim made under the Construction Contracts Act 2002.

6. Provision of the Works

6.1 Subject to clause 6.2 it is GS’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 if GS claims an extension of time (by giving the Client written notice) where completion is delayed by an event beyond GS’s control, including but not limited to any failure by the Client to:

(a) make a selection; or

(b) have the Worksite ready for the Works; or

(c) notify GS that the Worksite is ready.

6.3 At GS’s sole discretion, the cost of delivery is in addition to the Price.

6.4 GS may deliver the Works in separate instalments. Each separate instalment shall be invoiced and paid under the provisions in these terms and conditions.

6.5 Any time specified by GS for delivery of the Works is an estimate only and GS will not be liable for any loss or damage incurred by the Client as a result of delivery being late. However, both parties agree that they shall make every endeavour to enable the Works to be supplied at the time and place as was arranged between both parties. If GS is unable to supply the Works as agreed solely due to any action or inaction of the Client, then GS shall be entitled to charge a reasonable fee for re-supplying the Works at a later time and date, and/or for storage of the Materials.

7. Risk

7.1 If GS retains ownership of the Materials under clause 11 then:

(a) where GS is supplying Materials only, all risk for the Materials shall immediately pass to the Client on delivery and the Client must insure the Materials on or before delivery. Delivery of the Materials shall be deemed to have taken place immediately at the time that either:

(i) the Client or the Client’s nominated carrier takes possession of the Materials at GS’s address; or

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

(b) where GS is to both supply and install Materials then GS 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 Client.

7.2 Where GS is required to install the Materials the Client 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 GS 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.

7.3 Whilst every care shall be taken by GS, any damage or breakage to the Client’s existing glass during the Works by GS shall be at the Client’s own risk.

7.4 The Client acknowledges and agrees that GS shall not accept the return, nor give any refund on any glass that has already been cut as it cannot be resold.

7.5 The Client acknowledges that the Materials supplied may:

(a) expand, contract, or distort because of exposure to heat, cold, weather; and

(b) mark or stain if exposed to certain substances; and

(c) be damaged or disfigured by impact or scratching.

7.6 The Client acknowledges that Materials (including but not limited to paint, timber, aluminium, tints) supplied may exhibit variations in shade tone, colour, texture, surface, and finish, and may fade or change colour over time. GS will make every effort to match batches of product supplied to minimise such variations but shall not be liable in any way whatsoever where such variations occur.

7.7 The Client agrees to indemnify GS from any loss or damage caused by any other tradesmen (including but not limited to, incorrect or faulty installation carried out by any other third party) during and after the completion of the Works.

7.8 Materials may be subject to a plus or minus two millimetre (+/- 2mm) tolerance due to variation in glass thickness and small waves that may result from the toughening process used to produce the Materials. Such variations may be more visible in darker coloured Materials. GS offers no guarantee against defects of this nature.

8. Access 

8.1 The Client shall ensure GS has clear and free access to the Worksite at all times to enable them to undertake the installation. GS shall not be liable for any loss or damage to the Worksite (including, without limitation, damage to pathways, driveways, and concreted or paved or grassed areas) unless due to the negligence of GS.

8.2 In the event the Client requires an employee or sub-contractor of GS to undertake a Worksite induction during working hours, the Client will be liable to pay the hourly charges for that period. If any induction needs to be undertaken before the commencement date then the Client shall be liable to pay GS’s standard (and/or overtime, if applicable) hourly labour rate.

 

9. Dimensions, Plans, and Specifications

9.1 Where the Client does not provide specifications or plans then industry standards will be applied regarding measurements, design, and finish unless GS and the Client agree otherwise in writing.

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

10. Compliance with Laws

10.1 The Client and GS shall comply with the provisions of all statutes, regulations, and bylaws of government, local, and other public authorities that may apply to the Works, including any WorkSafe health and safety laws relating to or any other relevant safety standards or legislation pertaining to the Works.

10.2 Both parties acknowledge and agree:

(a) to comply with the Building Amendment Act 2013, in respect of all workmanship and building products to be supplied during the Works; and

(b) that Works will be provided following any current relevant Australian/New Zealand Standards applicable.

10.3 Where the Client has supplied products for GS to complete the Works, the Client acknowledges that it accepts responsibility for the suitability of purpose and are for their Intended Use and any faults inherent in those products. However, if in GS’s opinion, it is believed that the materials supplied are Non-Conforming products and will not conform with New Zealand regulations, then GS shall be entitled, without prejudice, to halt the Works until the appropriate conforming products are sourced and all costs associated with such a change to the plans and design will be invoiced under clause 5.2.

10.4 The Client shall obtain (at the expense of the Client) all licenses and approvals that may be required for the Works.

10.5 Notwithstanding clause 10.1 and pursuant to the Health & Safety at Work Act 2015 (the “HSW Act”), GS agrees at all times to comply with sections 28 and 34 of the “HSW Act” with meeting their obligations for health and safety laws in the workplace regardless of whether they may be the party in control of the Worksite or where they may be acting as a sub-contractor for the Client who has engaged a third party head contractor.

11. Title

11.1 GS and the Client agree that ownership of the Materials shall not pass until:

(a) the Client has paid GS all amounts owing to GS; and

(b) the Client has met all of its other obligations to GS.

11.2 Receipt by GS 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.

11.3 It is further agreed that:

(a) until ownership of the Materials passes to the Client under clause 11.1 that the Client is only a bailee of the Materials and unless the Materials have become fixtures must return the Materials to GS on request;

(b) the Client holds the benefit of the Client’s insurance of the Materials on trust for GS and must pay to GS 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 GS shall be sufficient evidence of GS’s rights to receive the insurance proceeds direct from the insurer without the need for any person dealing with GS to make further enquiries;

(d) unless the Materials have become fixtures the Client irrevocably authorises GS to enter any premises where GS believes the Materials are kept and recover possession of the Materials.

12. Defects in Materials

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

12.2 Materials will not be accepted for return other than in accordance with 12.1 above.

12.3 Subject to clause 12.1, non-stocklist items or Materials made to the Client’s specifications are under no circumstances acceptable for credit or return.

13. Warranties

13.1 Subject to the conditions of warranty set out in clause 13.2 GS warrants that if any defect in any workmanship of GS becomes apparent and is reported to GS within twelve (12) months of the date of delivery (time being of the essence) then GS will either (at GS’s sole discretion) replace or remedy the workmanship.

13.2 The conditions applicable to the warranty given by clause 13.1 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 Materials; or

(ii) failure on the part of the Client to follow any instructions or guidelines provided by GS; or

(iii) any use of any Materials otherwise than for any application specified on a quote or order form; or

(iv) the continued use of any Materials 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 GS shall thereafter in no circumstances be liable under the terms of the warranty if the workmanship is repaired, altered, or overhauled without GS’s consent.

(c) in respect of all claims, GS 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.

13.3 For Materials not manufactured by GS, the warranty shall be the current warranty provided by the manufacturer of the Materials. GS 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 Materials.

14. Intellectual Property

14.1 Where GS has designed, drawn, written plans or a schedule of Works, or created any products for the Client, then the copyright in all such designs, drawings, documents, plans, schedules, and products shall remain vested in GS, and shall only be used by the Client at GS’s discretion. Under no circumstances may such designs, drawings, and documents be used without the express written approval of GS.

14.2 The Client warrants that all designs, specifications, or instructions given to GS will not cause GS to infringe any patent, registered design, or trademark in the execution of the Client’s order, and the Client agrees to indemnify GS against any action taken by a third party against GS in respect of any such infringement.

14.3 The Client agrees that GS may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings, plans, or products that GS has created for the Client.

15. Default and Consequences of Default

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

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

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

(a) any money payable to GS becomes overdue, or in GS’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 GS;

(c) the Client becomes insolvent or bankrupt, convenes a meeting with its creditors or proposes or enters 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.

16. Cancellation

16.1 Without prejudice to any other rights or remedies GS may have, if at any time the Client is in breach of any obligation (including those relating to payment and/or failure to remedy any breach in respect of this Contract within ten (10) working days of receipt by the Client of such notice/s) then GS may suspend or terminate the supply of the Works. GS will not be liable to the Client for any loss or damage the Client suffers because GS has exercised its rights under this clause.

16.2 GS 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 Client. On giving such notice GS shall repay to the Client any sums paid in respect of the Price, less any amounts owing by the Client to GS for Works already performed. GS shall not be liable for any loss or damage whatsoever arising from such cancellation.

16.3 If the Client cancels the delivery of Works the Client shall be liable for any loss incurred (whether direct or indirect) by GS as a direct result of the cancellation (including, but not limited to, any loss of profits).

16.4 Cancellation of orders for products made to the Client’s specifications, or for non-stocklist items, will not be accepted once production has commenced, or an order has been placed.

17. Suspension of Works

17.1 Where the Contract is subject to section 24A of the Construction Contracts Amendment Act 2015, the Client hereby expressly acknowledges that:

(a) GS 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 Client, and the payment is not paid in full by the due date for payment under clause 5.5 and/or any subsequent amendments or new legislation and no payment schedule has been given by the Client.

(b) if GS 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 Client or by any person claiming through the Client; 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.

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

(i) affect any rights that would otherwise have been available to GS under the Contract and Commercial Law Act 2017; or

(ii) enable the Client to exercise any rights that may otherwise have been available to the Client under that Act as a direct consequence of GS suspending work under this provision;

17.2 If under any right conferred by this Contract, GS suspends the Works and the default that led to that suspension continues un-remedied subject to clause 16.1 for at least ten (10) working days, GS shall be entitled to terminate the Contract, under clause 16.

18. Service of Notices

18.1 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 sent by email to the other party’s last known email address.

19. General

19.1 Any dispute or difference arising as to the interpretation of these terms and conditions or as to any matter arising hereunder, shall be submitted to, and settled by, either adjudication under section 26 of the Construction Contracts Act 2002 and/or by arbitration under the Arbitration Act 1996 or its replacement(s).

19.2 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.

19.3 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.

19.4 GS 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 by GS of these terms and conditions (alternatively GS’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Works).

19.5 GS may elect to subcontract out any part of the Works 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 GS’s sub-contractors without the authority of GS.

19.6 The Client agrees that GS 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 GS to provide Works to the Client.

19.7 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 event beyond the reasonable control of either party.

19.8 Both parties warrant that they have the power to enter 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.