1.1 In these terms and conditions and in any Contract to which these terms and conditions apply, unless the context otherwise requires:
1.1.1 Company means Goleman Group Ltd, and its subsidiary companies.
1.1.2 Conditions means these terms and conditions to be read and construed with each Quotation provided by the Company;
1.1.3 Customer means the purchaser of the Services from the Company;
1.1.4 Contract means an agreement between the Customer and the Company comprising the Quotation and the Conditions;
1.1.5 Quotation means the quotation letter provided by the Company to the Customer for the purposes of supplying the Services which shall form part of and be read and construed with these Conditions; and
1.1.6 Services mean the services supplied by the Company to the Customer under a Contract, more particularly described in the Quotation.
1.2 Unless the Company and the Customer otherwise agree in writing:
1.2.1 These Conditions and the items set out in the attached Quotation shall apply to the supply of Services and no other conditions shall apply;
1.2.2 In the event of any conflict arising between these Conditions and any Contract these Conditions shall prevail; and
1.2.3 Quotations by the Company remain open for acceptance within 30 days from the date of the Quotation.
2 Provision of Services
2.1 The Company shall provide to the Customer the Services described in the Quotation.
2.2 The Company shall undertake the Services using reasonable skill, efficiency, care and diligence in accordance with best commercial practices, subject to any financial, physical, time or other restraints imposed by the Customer or necessarily resulting from the nature of the Contract and the Services.
2.3 Any dates quoted by the Company for completion of the Services are approximate only and shall not form part of the Contract. The Company shall use its best endeavours to complete the Contract on the quoted date, however it will not, under any circumstances, be liable for any costs, expenses, damages or loss of profits incurred by the Customer as a result of a delay in supply of the Services.
3 Formation of Services
No contract shall come into existence until the Contract has been signed by the Customer and returned to the Company [and the deposit referred to in the Quotation, if any, has been paid to the Company]
4.1 In addition to the quoted price, the Customer shall pay for all additional costs and disbursements incurred by the Company in relation to carrying out the Services (including, without limitation, any permits or consents obtained by the Company on the Customer’s behalf).
4.2 Prices are quoted in New Zealand currency.
4.3 The Company reserves the right to correct any typographical or clerical errors contained in the prices or specifications in the Contract.
4.4 The Company reserves the right to alter its prices where additional Services are required either as a result of a lack of precision in the Customer’s specifications, where the Customer alters the specifications after the date of the Quotation, where the Contract extends beyond the original proposed timeframe or where any other change affects the provision of Services by the Company.
5.1 Payment for the Services shall be made within 14 days following the date of invoice. The Company reserves the right to require the Customer to pay for the Services prior to their supply by the Company, including requiring the Customer to pay the cost of the materials prior to the Services commencing.
5.2 The Company may (at the Customer’s sole discretion) charge the Customer for downtime when the Company’s representatives are on-site and ready to work but the Customer has not arranged access for the Company or cleared the workspace to allow the Company to begin work.
5.3 Time for payment is of the essence and, without prejudice to any other rights of the Company, if the Customer fails to pay any sum payable pursuant to any Contract when due:
5.3.1 The Company may treat the Contract as repudiated by the Customer or may until payment in full is made, cease providing the Services without incurring any liability whatsoever to the Company;
5.3.2 The Customer shall (if so required by the Company) pay interest to the Company at the default interest rate of three per cent (3%) per annum above the current base lending rate set from time to time by the Company’s bankers in New Zealand. Interest shall be payable daily until the date when payment is received; and
5.3.3 The Customer shall be liable for all expenses and costs (including legal costs) in relation to the Company enforcing or attempting to enforce a Contract or these Conditions.
5.4 The Customer shall not be entitled to make any deduction from the price of the Services in respect of any set-off or counterclaim or withhold any payment by way of retention without the prior written approval of the Company.
Any variations to any Contract must be made by the Customer to the Company in writing. The Company reserves its right to alter the Quotation in accordance with clause 4.4.
7.1 The Customer indemnifies the Company against all costs, claims, demands, expenses and liabilities of whatsoever nature, including without prejudice to the generality of the foregoing, claims for death, personal injury, damage to property and consequential loss (including loss of profits), which may be made against the Company or which the Company may sustain, pay or incur as a result of or in connection with the supply of Services, unless such cost, claim, demand, expense or liability shall be directly and solely attributable to the negligence of the Company or the negligence of a duly authorised employee or agent of the Company.
7.2 In the event the Company is held to be liable to the Customer, the liability of the Company shall be limited to the total price payable under a Contract for the Services, or the sum of $[ ], whichever is less.
7.3 If the Customer has engaged the Company to perform services which the Customer has been contracted to provide for a third party (Principal) the Company’s liability to the Principal is likewise limited and the Customer warrants that it is the Principal’s agent for the purposes of the Contract.
8.1 In the event that:
8.1.1 The amounts payable by the Customer to the Company are overdue, or the Customer fails to meet any other obligation to the Company, under a Contract or in the Company’s opinion the Customer is likely to be unable to meet any payment or other obligations to the Company; or
8.1.2 The Customer becomes insolvent, has a receiver appointed in respect of all or some of its assets, makes or is likely to make an arrangement with its creditors or has a liquidator (provisional or otherwise) appointed or is placed under statutory or official management; or
8.1.3 The Customer no longer carries on business or threatens to cease carrying on business; or
8.1.4 The ownership or effective control of the Customer is transferred or the nature of the Customer’s business is materially altered; then
8.1.5 The Company shall be entitled to cancel all or any part of any Contract with the Customer which remains unperformed, in addition to and without prejudice to its other remedies; and
8.1.6 All amounts outstanding under this Contract or any other Contract shall, whether or not due for payment, immediately become due and payable.
In the event the Customer breaches any of these Conditions, the Company may immediately in writing, either suspend work under a Contract or terminate any Contract it has with the Customer at which point all money due and owing to the Company by the Customer shall be payable. Suspension or termination shall not prejudice or affect the rights of the Company to make any claims against the Customer.
10 Intellectual Property
Copyright in all drawings, specifications, reports and other technical information provided by the Company in connection with a Contract is vested in the Company. The Customer undertakes not to disseminate, reproduce, store or transmit any such material without first obtaining the written consent of the Company.
11 Health and Safety
The Customer shall be responsible to ensure that it complies in all respects with the relevant provisions of the Health and Safety in Employment Act 1992, the Health and Safety in Employment Regulations 1995 and any relevant code of practice. All reasonably practicable steps must be taken by the Customer in relation to ensuring there is a safe place of work, including (but not limited to) the health and safety of the Company’s staff working on the Customer’s property.
12 Consumer Guarantees Act
12.1 Where the provision of Services is for business purposes, the Customer agrees that the provisions of the Consumer Guarantees Act 1993 do not apply.
12.2 Nothing in these Conditions limits any rights the Customer may have under the Consumer Guarantees Act 1993.
13.1 In consideration of the Company entering into a Contract to supply Services to the Customer, the Guarantor:
13.1.1 Guarantees payment of all monies owed by the Customer to the Company under the Contract; and
13.1.2 Guarantees the performance by the Customer of all obligations, responsibilities and covenants under the Contract.
13.2 The Guarantor agrees that in the event of default by the Customer in any payment, obligation, responsibility or covenant under the Quotation, these Conditions or a Contract, the Guarantor may for all purposes be treated as the Customer by the Company who shall be under no obligation to take proceedings against the Customer before taking proceedings against the Guarantor, and the Guarantor will execute a mortgage over his/her or its property to secure payment of all monies owed and outstanding by the Customer to the Company if requested by the Company.
13.3 Should there be more than one Guarantor then their liability as Guarantors under this Guarantee shall be joint and several.
Any confidential information received by the Company from the Customer shall be used solely for the provision of Services under a Contract.
15 Personal Property Securities Act 1999 (“PPSA”)
15.1 The Contract constitutes a security interest in all the Customer’s present and after acquired personal property for the purposes of the PPSA as security for payment by the Customer of all amounts due under the Contract, including any future amounts.
15.2 The Customer agrees to promptly execute and deliver to the Company all assignments, transfers and other agreements and documents and do anything else which the Company may deem appropriate to perfect the Company’s security interest over the Customer, or obtain the priority required by the Company or register (and renew registration) a financing statement for a security interest in favour of the Company.
15.3 To the extent that Part 9 of the PPSA applies, the Customer agrees that the provisions of sections 114(1)(a), 117(1)(c), 120, 122, 133 and 134 of the PPSA which are for the Customers benefit, or place any obligations on the Company in the Customers favour, shall not apply; and where the Company has rights in addition to those in Part 9 of the PPSA, those rights shall continue to apply.
15.4 To the extent that Part 9 of the PPSA applies, without limiting anything in the previous paragraph, the Customer hereby waives its rights under sections 116, 119, 120(2), 121, 125, 126, 127, 129, 131and 132 of the PPSA.
15.5 The Customer hereby waives its right to receive a copy of a verification statement under section 148 of the PPSA in respect of any financing statement or financing change statement registered by the Company.
16.1 If any Condition or part of any Condition is held to be invalid or unenforceable the invalidity or unenforceability shall be deemed eliminated or modified to the minimum possible extent necessary to make the remainder of the Conditions enforceable.
16.2 Failure by the Company to insist upon strict performance by the Customer of any of the Conditions shall not be a waiver of any rights of the Company on any subsequent occasion.
16.3 These Conditions and the Contract may only be varied by the Company in writing in its absolute discretion.
16.4 The Customer may not assign or transfer or purport to assign or transfer any of its rights or obligations under or in connection with the Contract to any other person whatsoever.
16.5 The Company reserves the right to sub-contract the performance of the Contract or any part of the Contract to any other party or person.
16.6 The Customer agrees that the Company may obtain information about the Customer from any source including credit assessment, debt collecting and direct marketing activities and the Customer consents to any person providing the Company with such information.
16.7 Neither party shall be liable for any delay, alteration or failure to perform its obligations under a Contract where occasioned by any event beyond that party’s reasonable control (“Force Majeure”) and such party shall be entitled to a reasonable extension of time for the performance of any such obligations.
16.8 The Customer shall pay the costs and expenses including legal fees incurred by the Company in exercising any of its rights or remedies or enforcing any of the Conditions.
16.9 All Contracts made between the Company and the Customer shall be governed by and construed in accordance with the laws of New Zealand and the Customer agrees to submit to the non-exclusive jurisdiction of the New Zealand Courts.
16.10 Any notice given by one party to the other shall be deemed to have been delivered 48 hours after posting to the recipients registered office or last known address and immediately if forwarded by facsimile or email.
16.11 If a dispute arises between the parties in relation to the provision of Services, the parties will endeavor to settle the dispute by way of good faith negotiation. In the event the dispute is not resolved by negotiation, the matter will be referred to mediation upon either party giving written notice to the other.