Terms of Trade
1.1 “Intrepid” means Intrepid Electrical Services or agents or employees thereof.
1.2 “CCA” shall mean the Construction Contracts Act 2002.
1.3 “CGA” shall mean the Consumer Guarantees Act 1993.
1.4 “Customer” shall mean the, any person acting on behalf of and with the authority of the, or any person receiving Services and/or purchasing Products.
1.5 “Contract” shall mean and encompass this entire Agreement for the Provision of Services.
1.6 “Contract Price” shall mean the cost of the Services and/or Products as agreed to between Intrepid and the Customer and includes all disbursements e.g. charges pay to others on the ‘s behalf.
1.7 “Delivery Date” shall mean the date provided to the customer as the indicative timeframe to complete the Contract.
1.8 “Guarantor” means that person (or persons), or entity that agrees herein to be liable for the debts of the Customer on a principal debtor basis.
1.9 “Products” shall mean:
1.9.1 All Products of the general description specified in the front of this Contract and supplied by Intrepid to the Customer; and
1.9.2 All additional Products supplied by Intrepid and further identified in any invoice issued by Intrepid to the Customer, which invoices are deemed to be incorporated
into and form part of this Contract.
1.10 “Services” shall mean services, products, goods and advice provided by Intrepid to the Customer.
1.11 “Variations to Contract Price” shall mean the additional cost of Services and/or Products provided by Intrepid to the Customer, as costs for variations to the Contract Price and will be at the hourly rates and/or cost pricing stipulated as part of the agreed Contract Price.
2.1 Any instructions received by Intrepid from the Customer for the supply of Services and/or Products shall constitute a binding Contract and acceptance of the terms and conditions contained herein.
2.2 Where more than one Customer has entered into this Contract, the Customer(s) shall be jointly and severally liable for all payments of the Contract Price and where necessary to variations to the Contract Price.
3. Collection and Use of Information
3.1 The Customer authorises Intrepid to collect, retain and use any information about the Customer for the purpose of assessing the Customer’s credit worthiness, enforcing any rights under this Contract, or marketing any Services and Products provided by Intrepid to any other party.
3.2 The Customer authorises Intrepid to disclose any information obtained to any person for the purposes set out in clause 3.
3.3 Where the Customer is a natural person the authorities under clauses 3.1 and 3.2 are authorities or consents for the purposes of the Privacy Act 1993.
4.1 If any provision of these Terms of Trade is deemed to be invalid, void or illegal or unenforceable the validity existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
4.2 Failure by Intrepid to enforce any of the Contract shall not be deemed to be a waiver of any of the rights or obligations Intrepid has under this Contract
4.3 The provisions in these terms of trade supersede any previous terms and conditions in place between the Customer and Intrepid.
5. Customer Guarantees Act 1993
5.1 The guarantees contained in the CGA are excluded where the Customer acquires Services and Products from Intrepid for the purposes of a business in terms of section 2 and 43 of that Act.
6. Construction Contracts Act 2002
6.1 Intrepid acknowledges that the obligations and benefits of the CCA shall apply in respect of any supply deemed construction work. Construction work should have the same meaning as in the CCA.
6.2 Intrepid shall be entitled to exercise any or all powers available to it under the CCA including suspension of work; adjudication; and seeking charging orders.
7. Contract Price
7.1 Where no contract price is stated in writing or agreed to orally the performance of services and/or supply of products shall be deemed to be provided at the current amount as such Services and Products are supplied by Intrepid at the time of the Contract.
7.2 The Contract Price may be increased by the amount of any reasonable increase in the cost of supply of the Services and Products that is beyond the control of Intrepid between the date of the Contract and supply of the Services and Products.
8. Defects / Returns
8.1 The Customer shall inspect the Services and/or Products on delivery and shall within seven (7) days of delivery notify Intrepid of any alleged defect, shortage in quantity, damage or failure to comply with the description or quotation. The Customer shall afford Intrepid an opportunity to inspect the Services and/or Products within a reasonable time following delivery if the Customer believes the Services and/or Products are defective in any way. If the Customer shall fail to comply with this provision then the Services and/or Products shall be conclusively presumed to be in accordance with the terms and conditions and free from any defect or damage.
8.2 For defective Services and/or Products, which have been agreed to in writing by Intrepid, the Customer is entitled to reject, and Intrepid’s liability is limited to either replacing the Services and/or Products or repairing the Services and/or Products provided that the Customer has complied with these provisions. All Services and/or Products must be returned in the condition in which they were delivered.
14.3 Intrepid is not liable for Services and/or Products which have not been stored or used in a proper manner.
9. Copyright and Intellectual Property
9.1 Intrepid owns and has copyright in all designs, software, systems, solutions, work, drawings, specifications, electronic data and documents produced by Intrepid in connection with the provision of Services and supply of Products, provided pursuant to this Contract and the Customer may use the Services and/or Products only if paid for in full and for the purpose for which they were intended and supplied by Intrepid.
10.1 Without prejudice to other remedies, Intrepid may terminate this Contract and any other Contract for supply with the Customer, if the Customer:
10.1.1 Breaches these Terms of Trade; or
10.1.2 Becomes or take any steps towards becoming insolvent; or
10.1.3 No longer carries on business or threatens to cease carrying on business; or
10.1.4 Ownership or effective control is transferred or the nature of the Customer’s business is materially altered.
10.2 Termination or postponement of this Contract or any other Contract will be effective immediately upon receiving written notice.
10.3 All amounts owing by the Customer to the Intrepid are immediately due and payable on termination.
10.4 If the Customer defaults in payment then the Customer agrees that where the Products and/or Services relate to Customer’s land, then the amount of such default gives rise to a legal or equitable estate or interest in the Customer’s land which entitles Intrepid to enter a caveat against the Customer’s land pursuant to the Land Transfer Act 1952 and its amendments or any legislation in substitution thereof.
11. Delay in Services and Products
11.1 If at any time Intrepid is not making sufficient progress to meet the delivery date of providing Services and/or supplying the products, Intrepid shall immediately (within 24 hours) notify the Customer in writing, informing them of the delay and the duration of the delay.
12. Delivery of Products
12.1 Delivery of Products shall be made to the Customer’s address. The Customer shall make all arrangements necessary to take delivery of the Products.
12.2 Delivery of the Products to a carrier, either named by the Customer or failing such naming to a carrier at the discretion of Intrepid for the purpose of transmission to the Customer, is deemed to be a delivery of the Products to the Customer.
12.3 The costs of carriage and any insurance which the Customer reasonably directs Intrepid to incur shall be reimbursed by the Customer and shall be due on the date for payment of the Price. The carrier shall be deemed to be the Customer’s agent. The failure of Intrepid to deliver shall not entitle either party to treat this Contract as repudiated.
12.4 Intrepid shall not be liable for any loss or damage whatsoever due to failure by a carrier to deliver the Products (or any of them) promptly or at all.
13.1 No claim relating to Services and/or Products will be considered unless made within seven (7) days of the provision of Services and/or supply of Services, or in accordance with the CCA.
14. Force Majeure
14.1 Intrepid cannot be held liable if it is unable to carry out its obligations under this Contract due to a Force Majeure event. A Force Majeure event means any event beyond Intrepid’s reasonable control and includes, but is not limited to, strikes, power failures, fires, earthquakes and other natural disasters.
15.1 The CGA, the Fair Trading Act 1986 and other statutes may imply warranties or conditions or impose obligations upon Intrepid which cannot by law (or which can only to a limited extent by law) be excluded or modified. In respect of any such implied warranties, conditions or terms imposed on Intrepid, Intrepid’s liability shall, where it is allowed, be excluded or if not able to be excluded only apply to the minimum extent required by the relevant statute.
15.2 Except as otherwise provided by clause 15.1, Intrepid shall not be liable for:
15.2.1 Any loss or damage of any kind whatsoever, arising from the supply of Services and/or Products by Intrepid to the Customer, including consequential loss whether suffered or incurred by the Customer or another person and whether in contract or tort (including negligence) or otherwise and irrespective of whether such loss or damage arises directly or indirectly from Services and/or Products provided by Intrepid to the Customer; or
15.2.2 Any loss or damage of any kind as a result of the supply of the Products and/or Services being delayed, and Intrepid expressly limits both liquidated and general damages arising from the delay to $NIL, and therefore Intrepid’s aggregate liability for the liquidated and general damages is limited to 0% of the Contract Price; and
15.2.3 In any event, the Customer shall indemnify Intrepid against all claims and loss of any kind whatsoever however caused or arising and without limiting the generality of the foregoing of this clause whether caused or arising as a result of the negligence of Intrepid or otherwise, brought by any person in connection with any matter, act, omission, or error by Intrepid its agents or employees in connection with the Services and/or Products.
15.3 If contrary to the disclaimer of liability contained in this Contract Intrepid is deemed liable to the Customer, following and arising from the supply of Services and/or Products by Intrepid to the Customer, then such liability is limited in its aggregate to $500.
16. Occupational Health and Safety
16.1 The Customer warrants that any site that Intrepid, its employees, contractors, servants or agents may have a Contract with must meet all requirements and obligations as specified in the Health & Safety at Work Act 2015. The Customer warrants that such sites are under their control and the Customer warrants they have eliminated, isolated and minimised all hazards and any breach of the same will be at the liability of the Customer.
17.1 Payment for Services and Products shall be made in full on or before the 20th day of the month following the date of the invoice or as otherwise indicated on the GST Tax Invoice (“the due date”).
17.2 Where the CCA applies, all invoices for progress payments will be prepared to meet the provisions of the CCA and shall be in the form of a payment claim within the meaning of the CCA. The Customer is hereby put on notice of the requirements of the CCA in terms of the issuing of payment schedules.
17.3 Interest may be charged on any amount owing after the due date at the rate of 2.5% per month or part month.
17.4 Any expenses, disbursements and legal costs incurred by Intrepid in the enforcement of any rights contained in this Contract shall be paid by the Customer, including any reasonable solicitor’s fees or debt collection agency fees.
17.5 Receipt of a cheque, bill of exchange, or other negotiable instrument shall not constitute payment until such negotiable instrument is paid in full.
17.6 A deposit of up to 50% may be required for new Customers prior to commencement of work.
17.7 The Customer expressly acknowledges that no retentions shall apply unless provision for a retention is incorporated within the prevailing terms and conditions.
17.8 Failure by Intrepid to enforce any of the terms and conditions contained in the Contract shall not be deemed to be a waiver of any of the rights or obligations Intrepid have under this agreement for the provision of services.
18.1 Where a quotation is given by Intrepid for Services and/or Products:
18.1.1 Unless otherwise agreed the quotation shall be valid for thirty (30) days from the date of issue; and
18.1.2 The quotation shall be exclusive of goods and services tax unless specifically stated to the contrary; and
18.1.3 Intrepid reserve the right to alter the quotation because of circumstances beyond its control.
19. Risk and Insurance
19.1 Intrepid will retain a property interest in the Products however all risk for the Products passes to the Customer upon delivery.
19.2 If any of the Products are damaged or destroyed prior to property in them passing to the Customer, Intrepid is entitled, without prejudice to any of its other rights or remedies under these terms and conditions (including the right to receive payment of the balance of the Price for the Products), to receive all insurance proceeds payable in respect of the Products. This applies whether or not the Contract Price has become payable under this Contract. The production of these terms and conditions by Intrepid is sufficient evidence of Intrepid’s rights to receive the insurance proceeds.
19.3 The Customer must provide insurance for the provision of Services and/or supply of Products, which comprise the Contract. All risk and responsibility and liability for insurance premiums and calls in relation to insuring the Services and Products, shall remain with the Customer.
20. Scope and Services Provided
20.1 These terms and conditions form an integral part of the Contract between Intrepid and the Customer.
20.2 Intrepid shall perform the Services, or supply the Products, to the Customer in an efficient, effective and professional manner exercising the degree of skill, care and diligence normally exercised by Intrepid in similar circumstances subject to any financial, physical, time or other restraints imposed by the Customer or necessarily resulting from the nature of the project.
21. Title and Security (Personal Property Securities Act 1999)
21.1 Title in any Services and/or Products supplied by Intrepid passes to the Customer only when the Customer has made payment in full for all Services and/or Products provided by Intrepid and of all other sums due to Intrepid by the Customer on any account whatsoever. Until all sums due to Intrepid by the Customer have been paid in full, Intrepid has a security interest in all Services and Products.
21.2 The Customer gives irrevocable authority to Intrepid to enter any premises occupied by the Customer or on which Services and Products are situated at any reasonable time after default by the Customer. Intrepid shall not be liable for any costs, damages, expenses or losses incurred by the Customer or any third party as a result of this action, nor liable in contract or in tort or otherwise in any way whatsoever unless by statute such liability cannot be excluded. Intrepid may either resell any repossessed Services and Products and credit the Customer’s account with the net proceeds of sale (after deduction of all repossession, storage, selling and other costs) or may retain any repossessed Services and Products and credit the Customer’s account with the invoice value thereof less such sum as Intrepid reasonably determines on account of wear and tear, depreciation, obsolescence, loss or profit and costs.
21.3 Where Services and Products are retained by Intrepid pursuant to clause 21.2 the Customer waives the right to receive notice under s.120 of the Personal Property Securities Act 1999 (“PPSA”) and to object under s.121 of the PPSA.
21.4 The following shall constitute defaults by the Customer:
21.4.1 Non payment of any sum by the due date.
21.4.2 Any Services and Products are seized by any other creditor of the Customer or any other creditor intimates that it intends to seize Services and Products.
21.4.3 Any Services and Products in the possession of the Customer are materially damaged while any sum due from the Customer to Intrepid remains unpaid.
21.4.4 The Customer is bankrupted or put into liquidation or a receiver is appointed to any of the Customer’s assets or a landlord distains against any of the Customer’s assets.
21.4.5 A Court judgment is entered against the Customer and remains unsatisfied for seven (7) days.
21.4.6 If the Credit Repossession Act applies to any transaction between the Customer and Intrepid, the Customer has the rights provided in that Act despite anything contained in these terms and conditions of trade.
22.1 Intrepid shall be entitled to adjust the Contract Price, from time to time, and the Customer agrees to pay the variation to Contract Price, to take account of variations in the cost to Intrepid of carrying out the whole of the Services and/or providing Products or any part thereof, provided that the variations are reasonable and within the scope of the Contract.
22.2 Intrepid will notify the Customer, in writing, of any variations and acceptance by the Customer cannot be unreasonably withheld.
23.1 All Services and/or Products are guaranteed to be of merchantable quality.
23.2 For Services and/or Products not manufactured by Intrepid, the warranty shall be the current warranty provided by the manufacturer. Intrepid shall not be bound by nor be responsible for any term, condition, representation or warranty other than that which is given by the manufacturer.
23.3 Where, however, products are supplied to the specifications of the Customer, those products are guaranteed by Intrepid to be in accordance with those specifications.