McDermond Plumbing & Gasfitting Ltd – Terms & Conditions of Trade

  1. Definitions

    1. “McDermond Plumbing” shall mean McDermond Plumbing & Gasfitting Ltd its successors and assigns or any person acting on behalf of and with the authority of McDermond Plumbing & Gasfitting Ltd.
    2. “Client” shall mean the Client (or any person acting on behalf of and with the authority of the Client) as described on any quotation, work authorisation or other form as provided by McDermond Plumbing to the Client.
    3. “Guarantor” means that person (or persons), or entity, who agrees to be liable for the debts of the Client on a principal debtor basis.

    4. “Goods” shall mean Goods supplied by McDermond Plumbing to the Client (and where the context so permits shall include any supply of Services as hereinafter defined) and includes Goods described on any invoices, quotation, work authorisation or any other forms as provided by McDermond Plumbing to the Client.

    5. “Services” shall mean all services supplied by McDermond Plumbing to the Client and includes any advice or recommendations (and where the context so permits shall include any supply of Goods as defined above).

    6. “Price” shall mean the price payable for the Goods as agreed between McDermond Plumbing and the Client in accordance with clause 3 of this contract.

  1. Acceptance

    1. Where the Client and McDermond Plumbing agree by mutual consent, works up to the value of one thousand dollars ($1,000) may be undertaken without McDermond Plumbing providing a written quote.

    2. Any instructions received by McDermond Plumbing from the Client for the supply of Goods and/or the Client’s acceptance of Goods supplied by McDermond Plumbing shall constitute acceptance of the terms and conditions contained herein.

    3. Where more than one Client has entered into this agreement, the Clients shall be jointly and severally liable for all payments of the Price.

    4. Upon acceptance of these terms and conditions by the Client the terms and conditions are binding and can only be amended with the written consent of McDermond Plumbing.

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

  1. Price And Payment

    1. At McDermond Plumbing’s sole discretion the Price shall be either:

      1. as indicated on invoices provided by McDermond Plumbing to the Client in respect of Goods supplied; or

      2. McDermond Plumbing’s quoted Price (subject to clause 3.2) which shall be binding upon McDermond Plumbing provided that the Client shall accept McDermond Plumbing’s quotation in writing within thirty (30) days.

    2. McDermond Plumbing reserves the right to change the Price in the event of a variation to McDermond Plumbing’s quotation.

    3. At McDermond Plumbing’s sole discretion a deposit may be required.

    4. McDermond Plumbing may submit a detailed payment claim at intervals not less than one month for work performed up to the end of each month. The value of work so performed shall include the reasonable value of authorised variations, whether or not the value of such variations has been finally agreed between the parties, and the value of materials delivered to the site but not installed.

    5. At McDermond Plumbing’s sole discretion:

      1. payment shall be due on delivery of the Goods; or

      2. payment for approved Clients shall be made by instalments in accordance with McDermond Plumbing’s payment schedule; or

      3. payment for approved Client’s shall be 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.

    6. Time for payment for the Goods shall be of the essence and will be stated on the invoice or any other forms. If no time is stated then payment shall be due seven (7) days following the date of the invoice.

    7. Payment will be made by cash, or by cheque, or by bank cheque, or by credit card (with credit card details being held on site for future use), or by direct credit, or by any other method as agreed to between the Client and McDermond Plumbing.

    8. GST and other taxes and duties that may be applicable shall be added to the Price except when they are expressly included in the Price.

  1. Delivery Of Goods

    1. Delivery of the Goods shall take place when the Client takes possession of the Goods at the Client’s nominated address (in the event that the Goods are delivered by McDermond Plumbing or McDermond Plumbing’s nominated carrier).

    2. At McDermond Plumbing’s sole discretion the costs of delivery are:

      1. included in the Price; or

      2. in addition to the Price.

    3. The Client shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery. In the event that the Client is unable to take delivery of the Goods as arranged then McDermond Plumbing shall be entitled to charge a reasonable fee for redelivery.

    4. Delivery of the Goods to a third party nominated by the Client is deemed to be delivery to the Client for the purposes of this agreement.

    5. The failure of McDermond Plumbing to deliver shall not entitle either party to treat this contract as repudiated.

    6. McDermond Plumbing shall not be liable for any loss or damage whatever due to failure by McDermond Plumbing to deliver the Goods (or any of them) promptly or at all.

  1. Risk

    1. If McDermond Plumbing retains ownership of the Goods nonetheless, all risk for the Goods passes to the Client on delivery.

    2. If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Client, McDermond Plumbing is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by McDermond Plumbing is sufficient evidence of McDermond Plumbing’s rights to receive the insurance proceeds without the need for any person dealing with McDermond Plumbing to make further enquiries.

    3. The Client acknowledges and agrees that the presence of plant/tree root growth and/or blockages generally indicates damaged pipes. Accordingly the Client agrees that these pipes cannot be fixed by simply removing plant/tree root growth or cleaning the drain, therefore no warranty is provided against this situation arising again in the future and in respect of any work carried out in relation hereto. In the event that any of McDermond Plumbing’s equipment becomes lodged in the Client’s faulty drain it shall be removed at the expense of the Client.
    4. Where the
  1. Damages

    1. McDermond Plumbing shall not be liable for any loss or damage caused in accessing the work site beyond reasonable control of McDermond Plumbing (including, without limitation, damage to pathways, driveways and concreted or paved or grassed areas).

  1. Underground Locations

    1. Prior to McDermond Plumbing commencing any work the Client must advise McDermond Plumbing of the precise location of all underground services on the site and clearly mark the same. The underground mains & services the Client 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, Telstra cables, fibre optic cables, oil pumping mains, and any other services that may be on site.

    2. Whilst McDermond Plumbing will take all care to avoid damage to any underground services the Client agrees to indemnify McDermond Plumbing 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 7.1.

  1. Title

    1. McDermond Plumbing and Client agree that ownership of the Goods shall not pass until:

      1. the Client has paid McDermond Plumbing all amounts owing for the particular Goods; and

      2. the Client has met all other obligations due by the Client to McDermond Plumbing in respect of all contracts between McDermond Plumbing and the Client.

    2. Receipt by McDermond Plumbing 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 and until then McDermond Plumbing’s ownership or rights in respect of the Goods shall continue.

    3. It is further agreed that:

      1. where practicable the Goods shall be kept separate and identifiable until McDermond Plumbing shall have received payment and all other obligations of the Client are met; and

      2. until such time as ownership of the Goods shall pass from McDermond Plumbing to the Client McDermond Plumbing may give notice in writing to the Client to return the Goods or any of them to McDermond Plumbing. Upon such notice being given the rights of the Client to obtain ownership or any other interest in the Goods shall cease; and

      3. the Client is only a bailee of the Goods and until such time as McDermond Plumbing has received payment in full for the Goods then the Client shall hold any proceeds from the sale or disposal of the Goods on trust for McDermond Plumbing; and

      4. until such time that ownership in the Goods passes to the Client, if the Goods are converted into other products, the parties agree that McDermond Plumbing will be the owner of the end products; and

      5. if the Client fails to return the Goods to McDermond Plumbing then McDermond Plumbing or McDermond Plumbing’s agent may enter upon and into land and premises owned, occupied or used by the Client, or any premises where the Goods are situated as the invitee of the Client and take possession of the Goods, and McDermond Plumbing will not be liable for any reasonable loss or damage suffered as a result of any action by McDermond Plumbing under this clause.

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

    1. Upon assenting to these terms and conditions in writing the Client acknowledges and agrees that:

      1. these terms and conditions constitute a security agreement for the purposes of the PPSA; and

      2. a security interest is taken in all Goods previously supplied by McDermond Plumbing to the Client (if any) and all Goods that will be supplied in the future by McDermond Plumbing to the Client.

    2. The Client undertakes to:

      1. sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which McDermond Plumbing may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register;

      2. indemnify, and upon demand reimburse, McDermond Plumbing for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register or releasing any Goods charged thereby;

      3. not register a financing change statement or a change demand without the prior written consent of McDermond Plumbing; and

      4. immediately advise McDermond Plumbing of any material change in its business practices of selling the Goods which would result in a change in the nature of proceeds derived from such sales.

    3. McDermond Plumbing and the Client agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms and conditions.

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

    5. Unless otherwise agreed to in writing by McDermond Plumbing, the Client waives its right to receive a verification statement in accordance with section 148 of the PPSA.

    6. The Client shall unconditionally ratify any actions taken by McDermond Plumbing under clauses 9.1 to 9.5.

  1. Client’s Disclaimer

    1. The Client hereby disclaims any right to rescind, or cancel any contract with McDermond Plumbing or to sue for damages or to claim restitution arising out of any misrepresentation made to the Client by McDermond Plumbing and the Client acknowledges that the Goods are bought relying solely upon the Client’s skill and judgment.

  1. Defects

    1. The Client shall inspect the Goods on delivery and shall within seven (7) days of delivery (time being of the essence) notify McDermond Plumbing of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Client shall afford McDermond Plumbing an opportunity to inspect the Goods within a reasonable time following delivery if the Client believes the Goods are defective in any way. If the Client shall fail to comply with these provisions the Goods shall be presumed to be free from any defect or damage. For defective Goods, which McDermond Plumbing has agreed in writing that the Client is entitled to reject, McDermond Plumbing’s liability is limited to either (at McDermond Plumbing’s discretion) replacing the Goods or repairing the Goods.

  1. Returns

    1. Returns will only be accepted provided that:

      1. the Client has complied with the provisions of clause 11.1; and

      2. McDermond Plumbing has agreed in writing to accept the return of the Goods; and

      3. the Goods are returned at the Client’s cost within seven (7) days of the delivery date; and

      4. McDermond Plumbing will not be liable for Goods which have not been stored or used in a proper manner; and

      5. the Goods are returned in the condition in which they were delivered and with all packaging material, brochures and instruction material in as new condition as is reasonably possible in the circumstances.

    2. McDermond Plumbing will not accept the return of Goods for credit.

  1. Warranty

    1. Subject to the conditions of warranty set out in Clause 13.2 McDermond Plumbing warrants that if any defect in any workmanship of McDermond Plumbing becomes apparent and is reported to McDermond Plumbing within thirty (30) days of the date of delivery (time being of the essence) then McDermond Plumbing will either (at McDermond Plumbing’s sole discretion) replace or remedy the workmanship.

    2. The conditions applicable to the warranty given by Clause 13.1 are:

      1. The warranty shall not cover any defect or damage which may be caused or partly caused by or arise through:

        1. Failure on the part of the Client to properly maintain any Goods; or

        2. Failure on the part of the Client to follow any instructions or guidelines provided by McDermond Plumbing; or

        3. Any use of any Goods otherwise than for any application specified on a quote or order form; or

        4. The continued use of any Goods after any defect becomes apparent or would have become apparent to a reasonably prudent operator or user; or

        5. Fair wear and tear, any accident or act of God.

      2. The warranty shall cease and McDermond Plumbing shall thereafter in no circumstances be liable under the terms of the warranty if the workmanship is repaired, altered or overhauled without McDermond Plumbing’s consent.

      3. In respect of all claims McDermond Plumbing 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.

    3. For Goods not manufactured by McDermond Plumbing, the warranty shall be the current warranty provided by the manufacturer of the Goods. McDermond Plumbing 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 Goods.

  1. Consumer Guarantees Act 1993

    1. If the Client is acquiring Goods for the purposes of a trade or business, the Client acknowledges that the provisions of the Consumer Guarantees Act 1993 do not apply to the supply of Goods by McDermond Plumbing to the Client.

  1. Intellectual Property

    1. Where McDermond Plumbing has designed, drawn or written Goods for the Client, then the copyright in those designs and drawings and documents shall remain vested in McDermond Plumbing, and shall only be used by the Client at McDermond Plumbing’s discretion.

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

  1. Default & Consequences Of Default
    1. Interest on overdue invoices shall accrue from the date when payment becomes due daily until the date of payment at a rate of 2.5% per calendar month and such interest shall compound monthly at such a rate after as well as before any judgment.

    2. If the Client defaults in payment of any invoice when due, the Client shall indemnify McDermond Plumbing from and against all costs and disbursements incurred by McDermond Plumbing in pursuing the debt including legal costs on a solicitor and own client basis and McDermond Plumbing’s collection agency costs.

    3. Without prejudice to any other remedies McDermond Plumbing may have, if at any time the Client is in breach of any obligation (including those relating to payment), McDermond Plumbing may suspend or terminate the supply of Goods to the Client and any of its other obligations under the terms and conditions. McDermond Plumbing will not be liable to the Client for any loss or damage the Client suffers because McDermond Plumbing has exercised its rights under this clause.

    4. If any account remains overdue after thirty (30) days then an amount of the greater of $20.00 or 10.00% of the amount overdue (up to a maximum of $200) shall be levied for administration fees which sum shall become immediately due and payable.

    5. Without prejudice to McDermond Plumbing’s other remedies at law McDermond Plumbing shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to McDermond Plumbing shall, whether or not due for payment, become immediately payable in the event that:

      1. any money payable to McDermond Plumbing becomes overdue, or in McDermond Plumbing’s opinion the Client will be unable to meet its payments as they fall due; or

      2. the Client becomes insolvent, 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

      3. a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.

  1. Security And Charge

    1. Despite anything to the contrary contained herein or any other rights which McDermond Plumbing may have howsoever:

      1. where the Client and/or the Guarantor (if any) is the owner of land, realty or any other asset capable of being charged, both the Client and/or the Guarantor agree to mortgage and/or charge all of their joint and/or several interest in the said land, realty or any other asset to McDermond Plumbing or McDermond Plumbing’s nominee to secure all amounts and other monetary obligations payable under these terms and conditions. The Client and/or the Guarantor acknowledge and agree that McDermond Plumbing (or McDermond Plumbing’s nominee) shall be entitled to lodge where appropriate a caveat, which caveat shall be withdrawn once all payments and other monetary obligations payable hereunder have been met.

      2. should McDermond Plumbing elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Client and/or Guarantor shall indemnify McDermond Plumbing from and against all McDermond Plumbing’s costs and disbursements including legal costs on a solicitor and own client basis.

      3. the Client and/or the Guarantor (if any) agree to irrevocably nominate constitute and appoint McDermond Plumbing or McDermond Plumbing’s nominee as the Client’s and/or Guarantor’s true and lawful attorney to perform all necessary acts to give effect to the provisions of this clause 17.1.

  1. Cancellation

    1. McDermond Plumbing may cancel any contract to which these terms and conditions apply or cancel delivery of Goods at any time before the Goods are delivered by giving written notice to the Client. On giving such notice McDermond Plumbing shall repay to the Client any sums paid in respect of the Price. McDermond Plumbing shall not be liable for any loss or damage whatever arising from such cancellation.

    2. In the event that the Client cancels delivery of Goods the Client shall be liable for any loss incurred by McDermond Plumbing (including, but not limited to, any loss of profits) up to the time of cancellation.

  1. Privacy Act 1993

    1. The Client and the Guarantor/s (if separate to the Client) authorises McDermond Plumbing to:

      1. collect, retain and use any information about the Client, for the purpose of assessing the Client’s creditworthiness or marketing products and services to the Client; and

      2. disclose information about the Client, whether collected by McDermond Plumbing from the Client directly or obtained by McDermond Plumbing 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 Client.

    2. Where the Client and/or Guarantors are an individual the authorities under clause 19.1 are authorities or consents for the purposes of the Privacy Act 1993.

    3. The Client and/or Guarantors shall have the right to request McDermond Plumbing for a copy of the information about the Client and/or Guarantors retained by McDermond Plumbing and the right to request McDermond Plumbing to correct any incorrect information about the Client and/or Guarantors held by McDermond Plumbing.

  1. Unpaid McDermond Plumbing’s Rights

    1. Where the Client has left any item with McDermond Plumbing for repair, modification, exchange or for McDermond Plumbing to perform any other Service in relation to the item and McDermond Plumbing has not received or been tendered the whole of the Price, or the payment has been dishonoured, McDermond Plumbing shall have:

      1. a lien on the item;

      2. the right to retain the item for the Price while McDermond Plumbing is in possession of the item;

      3. a right to sell the item.

    2. The lien of McDermond Plumbing shall continue despite the commencement of proceedings, or judgement for the Price having been obtained.

  1. Construction Contracts Act 2002

    1. In the event that the Client is a residential occupier as defined by the Construction Contracts Act 2002 the Client hereby expressly acknowledges that:

      1. McDermond Plumbing 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:

        1. the payment is not paid in full by the due date for payment and no payment schedule has been given by the Client; or

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

        3. the Client has not complied with an adjudicator’s notice that the Client must pay an amount to McDermond Plumbing by a particular date; and

        4. McDermond Plumbing has given written notice to the Client of its intention to suspend the carrying out of construction work under the construction contract.

      2. if McDermond Plumbing suspends work, it:

        1. is not in breach of contract; and

        2. 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

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

        4. 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.

      3. if McDermond Plumbing exercises the right to suspend work, the exercise of that right does not:

        1. affect any rights that would otherwise have been available to McDermond Plumbing under the Contractual Remedies Act 1979; or

        2. enable the Client to exercise any rights that may otherwise have been available to the Client under that Act as a direct consequence of McDermond Plumbing suspending work under this provision.

  1. General

    1. 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.
    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.
    3. McDermond Plumbing shall be under no liability whatever to the Client for any indirect loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by McDermond Plumbing of these terms and conditions.
    4. In the event of any breach of this contract by McDermond Plumbing the remedies of the Client shall be limited to damages which under no circumstances shall exceed the Price of the Goods.
    5. 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 McDermond Plumbing.
    6. McDermond Plumbing may license or sub-contract all or any part of its rights and obligations without the Client’s consent.
    7. McDermond Plumbing reserves the right to review these terms and conditions at any time. If, following any such review, there is to be any change to these terms and conditions, then that change will take effect from the date on which McDermond Plumbing notifies the Client of such change.
    8. The provisions of the Contractual Remedies Act 1979 shall apply to this contract as if section 15(d) were omitted from the Contractual Remedies Act 1979.

    9. Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, drought, storm or other event beyond the reasonable control of either party.
    10. The failure by McDermond Plumbing to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect McDermond Plumbing’s right to subsequently enforce that provision.