The following terms and conditions are applicable to the supply of window film and glazing materials and installation and services (“The Work”) by Auckland Glasspro Ltd Trading As Beyond Surface hereinafter referred to as ‘Beyond Surface’ No other terms, conditions or deviations from these terms and conditions shall be binding unless accepted in writing by an authorised representative of Beyond Surface. In the event of a conflict between these terms and conditions and any accompanying documentation, the terms and conditions of the accompanying documentation shall prevail.
1. Plans and Specifications
Copyright and ownership in all drawings, specifications and other technical information provided by
Beyond Surface in connection with the The Work is vested in Beyond Surface. Where Beyond
Surface has followed plans and specifications provided by the Customer or their agent, the Customer shall indemnify Beyond Surface against all damages, penalties, costs and expenses in respect of which Beyond Surface may become liable through the utilisation of those plans and specifications.
2. Quotation and Acceptance
Beyond Surface shall produce a formal quotation for the Customer for the The Work. The quotation shall be subject to the clarifications and exclusions set out in the documentation accompanying these terms and conditions and shall be valid for a period of thirty (30) days from the date specified on the quotation.
The Customer shall accept the quotation by signing the acceptance form accompanying the quotation and signing a copy of any plans and specifications attached to the quotation, if provided. The acceptance of the quotation in the manner specified in this clause shall constitute a binding contract and acceptance of the terms and conditions contained herein.
3. Variations
Except as expressly provided in these terms and conditions, no variation or alteration to the scope of the The Work shall be binding on the parties unless recorded in writing and signed by both parties, including any adjustment to the contract price.
Any changes required as a result of any ambiguous drawings or any other documentation provided by the Customer or their agent will be treated as a variation to the The Work.
4. Cancellation
In the event that the Customer wishes to cancel the contract for the The Work at any time after acceptance of the quotation, the Customer shall pay all actual and reasonable costs and expenses incurred by Beyond Surface together with a reasonable administration fee, provided that the Customer shall not be entitled to cancel the contract once the The Work has commenced without the prior consent in writing of Beyond Surface.
Beyond Surface shall, without any liability, and without any prejudice to any other right it has in law or equity, have the right by notice to suspend or cancel in whole or in part any contract for the supply of goods or services to the Customer if the Customer fails to pay any money owing after the due date, or if the Customer commits an act of bankruptcy as defined in section 19 of the Insolvency
Act 2006, or if liquidation proceedings are commenced in relation to the Customer, or if the Customer shall otherwise become bankrupt or insolvent, or if any other event occurs which evidences a lack of credit worthiness or insolvency on the part of the Customer. Any cancellation or suspension by Beyond Surface pursuant to this clause shall not affect Beyond Surface’s claim for money due at the time of cancellation or suspension or for damages for any breach of any terms of this contract or the Customer’s obligations to Beyond Surface under these terms and conditions.
5. Price
The price of the The Work shall be the price stated in the quotation together with all extras selected by the Customer and subject to variation in accordance with clause 3. The price quoted for the The Work excludes GST. GST shall be payable by the Customer in addition to the price quoted.
Where no price is stated in writing or agreed, the goods and/or services shall be deemed to be sold and/or supplied at the current price applying at the date upon which the invoice for the goods or services is issued to the Customer.
Notwithstanding anything contained in this clause or the quotation, the price of the goods and/or services may be increased by the amount of any reasonable increase in cost of supply of the goods or services between the date upon which the quotation is delivered to the Customer and the date upon which the goods or services are supplied and where such increase is beyond the reasonable control of Beyond Surface..
6. Payment
Payment for the The Work shall be made in full on or before
(i) the 20th day of the month following the month in which the invoice is issued
7. Commencement and Completion
The Customer acknowledges that any estimates as to the time frames for the commencement and completion of the The Work are approximate only. Beyond Surface. will use all reasonable endeavours to ensure the The Work is commenced and completed within the time frame specified but shall not be liable for any delay or failure to do so. Beyond Surface shall not be responsible for any delays caused by separate or nominated subcontractors. Should any delays occur the Customer agrees that all costs incurred by Beyond Surface and resulting from such delays will be charged as a variation to the contract price.
8. Repair of Defects
Where the The Work undertaken is of a commercial nature Beyond Surface shall at its sole cost rectify any defects in the materials or workmanship which are notified to Beyond Surface within ninety (90) days of completion of the The Work and within a reasonable time of receiving written notification of those defects. Beyond Surface shall not be liable under this clause to remedy:
– defects covered by a manufacturer’s or supplier’s guarantee that is available to and may be enforced by the Customer;
– defects in or damage caused by work undertaken by the Customer or the any of the Customer’s contractors.
Where the The Work is of a residential nature any notification by the Customer in writing to Contract within six (6) months from the completion of the The Work shall be rectified by Beyond Surface at Contract’s costs within a reasonable time of notification by the Customer of the defect.
Contract shall not be liable under this clause to remedy:
– defects covered by a manufacturer’s or supplier’s guarantee that is available to and may be enforced by the Customer;
– defects in or damage caused by work undertaken by the Customer or the any of the Customer’s contractors.
9. Risk and Insurance
Any goods supplied by Beyond Surface shall be at the sole risk of Beyond Surface until the earlier of payment for the goods and delivery of the goods to the Customer.
10. Ownership
Ownership of any goods and/or materials supplied as part of the The Work shall not pass to the Customer until all amounts owing by the Customer to Beyond Surface in respect of the goods and/or materials have been paid in full.
The Customer acknowledges and agrees that by assenting to these terms & conditions, the Customer grants a Purchase Money Security Interest to Contract, as that term is defined in the Personal Property Securities Act 1999 (“PPSA”), in all goods and/or materials supplied by Contract to the Customer.
The Customer irrevocably undertakes to sign any further documents and/or provide any further information (which information the Customer warrants to be complete, accurate and up-to-date in all respects) which Beyond Surface may reasonably require to enable registration of a financing statement or financing change statement on the Personal Property Securities Register. The costs of registering a financing statement or a financing change statement shall be met by the Customer and may, where applicable, be debited against the Customer’s credit account with Beyond Surface . The Customer shall not agree to allow any person to register a financing statement over any of the goods supplied by Beyond Surface without the prior written consent of Beyond Surface and will immediately notify Beyond Surface in writing if the Customer becomes aware of any person taking steps to register a financing statement in relation to such goods.
The Customer:
(a) waives its rights to:
(i) receive a copy of any verification statement; (ii) receive a copy of any financing change statement:
(b) If the Goods are for the Customer’s business use, the Customer agrees, to the extent Part 9 of the PPSA applies, that it will have no rights under Part 9 of the PPSA.
The Customer irrevocably grants to Beyond Surface the right to enter upon the Customer’s property or premises, without notice, and without being in any way liable to the Customer or to any third party, if Beyond Surface has cause to exercise any of Beyond Surface rights under section 109 of the PPSA, and the Customer shall indemnify Beyond Surface from any claims made by any third party as a result of such exercise.
Beyond Surface and the Customer agree that nothing in sections 114(1)(a), 116, 117(1)(c), 119, 120(2), 121, 125, 126, 127, 129, 131, and 132 of the PPSA will apply to these terms and conditions, or the security interest under these terms and conditions.
The Customer will be responsible to Beyond Surface for any costs or damages incurred in reclaiming and disposing of the unpaid goods and/or materials. Such costs include but are not limited to loss in value, cost or repossession, damaged premises and recovery, storage, resale and legal costs, on a solicitor and client basis. These costs shall be recoverable as a debt due to Beyond Surface by the Customer.
11. Warranty and Liability
The warranties, descriptions, representations, or conditions whether implied by law, trade, custom or otherwise are, and all other liability of Beyond Surface, whether in tort (including negligence), contract or otherwise is, expressly excluded to the fullest extent permitted by law.
Insofar as Beyond Surface may be liable, notwithstanding anything contained in these terms and conditions, to the extent permitted by law the total liability of the contract whether in tort (including negligence), contract or otherwise for any loss, damage or injury arising directly or indirectly out of completion of the Building Work or any other breach of Beyond Surface obligations is limited to the lesser of:
(a) to the price of goods and/or materials complained of;
(b) the cost of completing any necessary repairs/remedial work; or (c) the actual loss or damage suffered by the Customer.
Except where statue expressly requires otherwise Beyond Surface is not liable in any event for any loss of profits, consequential, indirect or special damage, loss or injury of any kind suffered by the Customer or any other person.
12. Collection and Use of Information
The Customer authorises Beyond Surface to collect, retain and use any information about the Customer for the purpose of assessing the Customer’s creditworthiness and/or enforcing any rights under this contract.
The Customer authorises Beyond Surface to disclose any information obtained to any person for the purposes set out in this clause. Where the Customer is a natural person, the authorities under this clause are authorities or consents for the purposes of the Privacy Act 1993.
13. Miscellaneous
Beyond Surface shall not be liable for delay or failure to perform its obligations if the cause of the delay or failure is beyond its control.
Failure by Beyond Surface to enforce any of the terms and conditions contained in this contract shall not be deemed to be a waiver of any of the rights or obligations Beyond Surface has under this contract.
If any provision of this contract shall be invalid, void or illegal or unenforceable, the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or implied.
The Customer may not assign any of its rights or obligations under this contract without the prior written consent of Beyond Surface .
14. Personal Guarantee
In consideration for Beyond Surface agreeing to complete the The Work at the request of the Customer, where the Customer is a company or trust, the directors or trustees signing this contract also sign this contract in their personal capacity and jointly and severally personally undertake as principal debtors to Beyond Surface the payment of any and all moneys owed by the Customer to Beyond Surface and indemnify Beyond Surface against non-payment by the Customer.
15. Governing Law
The within terms and conditions shall be governed by and construed in accordance with the laws of New Zealand and the parties shall submit to the exclusive jurisdiction of the New Zealand Courts.
16. Agency
The Customer authorises Beyond Surface to contract either as principal or agent for the provision of goods or services.
Where Beyond Surface enters into a contract of the type referred to this clause the Customer agrees to pay any amounts due under that contract.
Any list of proposed subcontractors supplied by Beyond Surface is provided on a without prejudice basis and Beyond Surface reserves the exclusive right to change subcontractors without adjustment to the quotation.
17. Dispute Resolution
In the event of a dispute or disagreement arising between Beyond Surface and the Customer the party with a grievance may give written notice to the other party specifying the nature of the dispute or disagreement, the remedy sought and requiring that the dispute or disagreement be determined and settled in accordance with this clause.
On receipt of the notice, the parties shall each appoint a representative who has authority to determine the grievance or dispute, and those two representatives shall meet as soon as reasonably possible to see if they can determine the grievance. All discussions, meetings and correspondence between the two representatives shall be deemed without prejudice and without concession of liability and shall not be used by either party in any later proceedings unless:
(a) Both parties agree, or
(b) The two representatives reach agreement, but one party fails to honour such agreement.
If the two representatives cannot within fourteen (14) days of being appointed reach agreement on how the grievance or dispute is to be determined, the parties shall refer the dispute to an independent expert who is acceptable to both parties.