1      Definitions

1.1     “Agent” shall mean Pestproof Limited, its successors, agents, and assigns including but not limited to Pestproof Pest Control, The Ant Man, Cashflow Consultants Ltd.

1.2     “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 the Agent to the Client.

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

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

1.5     “Price” shall mean the price payable for the Goods and Services as agreed between the Agent and the Client in accordance with clause 3 of this agreement headed Price and Payment.

1.6     “Service Call” means a visit to the Client’s site or work carried out on the Client’s property, and is chargeable at the current hourly rate, with a minimum charge being one hour plus time of travel in to and from the site unless otherwise stated in writing signed by both parties.

 

2      Acceptance

2.1     Each and every offer of service made by The Agent is subject to these Terms and Conditions.  Acceptance of an offer made by the Agent to the Client is also agreed to be acceptance of these Terms and Conditions whether acceptance is verbal, written or electronic. Reply by the Client from their stated email address  accepting an offer or when the Client clicks the ACCEPT option of an online offer this includes acceptance of both the offer and of these Terms and Conditions.  Any instructions received by the Agent from the Client for the supply of Goods and Services and/or the Client’s acceptance of Goods and Services supplied by the Agent shall constitute acceptance of the terms and conditions contained herein.

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

2.3     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 the Agent.

2.4     Any product or service not written on the invoice is not included in the invoiced price, whether implied or referred to in oral statement or not.

2.5     The Client shall give the Agent 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 contact details (including but not limited to, changes in the Client’s physical address, address for notices, email address, facsimile number, email address, mobile phone number, number for SMS text messages, or business practice). The Client shall be liable for any loss incurred by the Agent as a result of the Client’s failure to comply with this clause.

2.6     All invoices and other communications (whether physical or electronic) sent by the Agent to the Client will be deemed to have been delivered if they have been sent to the Client’s current address for notices (whether physical, postal, or electronic) as per clause 2.5.

 

3      Price And Payment

3.1     At the Agent’s sole discretion the Price shall be either:

(a)   as indicated on invoices provided by the Agent to the Client in respect of Goods and Services supplied; or

(b)   the Agent’s quoted Price (subject to clause 3.2) which shall be binding upon the Agent, provided that the Client shall accept the Agent’s quotation in writing by the quoted validity date, or within thirty (30) days if validity date not specified in the quote document.

3.2     The Agent reserves the right to change the Price in the event of a variation to the Agent’s quotation.

3.3     At the Agent’s sole discretion a deposit may be required.

3.4     All products quoted are believed to be available to the Agent at time of offer, but may become unavailable at time of supply for reasons beyond the Agent’s control.  If any product(s) become unavailable after time of offer and before time of supply, the Agent may, at its sole discretion, either decline the order in part or in full, and refund the portion of the value of the invoiced price relating to the parts affected by the obsolescence, or supply new specification products within quoted price, or supply new superior specification products with price adjustment of 10% without seeking authorisation from the Client.

3.5     At the Agent’s sole discretion:

(a)   payment shall be due on ordering of the Goods and Services; or

(b)   payment for approved Clients shall be made by instalments in accordance with the Agent’s payment schedule; or

(c)   payment for approved Clients shall be due seven (7) days from the date of invoice.

3.6     In the event that the Client places an order with the Agent, payment shall be before delivery.

3.7     Time for payment for the Goods and Services shall be of the essence and will be seven days for date of invoice unless specific alternate date has been agreed in writing prior to start of work. Unless otherwise stated in writing on the invoice then due date for payment shall be due seven (7) days following the date of the invoice.

3.8     Payment will be made by cash, or by cheque, or by bank cheque, or by direct credit, or by any other method as agreed to between the Client and the Agent.

3.9     All Prices quoted either written or verbally are agreed to be exclusive of GST and inclusive of available conditional discounts having been already deducted. Unless otherwise stated in writing all prices quoted verbally or in writing are including 20% prompt payment discount that is valid until due date then expires and unless other stated in wiring all prices are excluding GST so that 15% is to be added to any final figure at time of payment.

3.10    Any and all discounts offered are conditional on payment by Due Date. Some discounts offered are conditional on a specified condition, action or promotion. If the specified condition fails then the discount is deemed to have expired. Any discount that expires is invoiced as due seven days from date of invoice added to the account.

 

4      Delivery Of Goods and Services

4.1     Delivery of the Goods and Services shall take place when the Client takes possession of the Goods and Services at the Client’s nominated address (in the event that the Goods and Services are delivered by the Agent or the Agent’s nominated carrier).

4.2     At the Agent’s sole discretion, the costs of delivery are for the Client’s account.

4.3     The Client shall make all arrangements necessary to take delivery of the Goods and Services whenever they are tendered for delivery. In the event that the Client is unable to take delivery of the Goods and Services as arranged then the Agent shall be entitled to charge a reasonable fee for re-delivery.

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

4.5     The failure of the Agent to deliver shall not entitle either party to treat this contract as repudiated.

4.6     The Client agrees to give the Agent access to the premises and to the equipment referred to in this agreement to carry out any and all tasks related to this agreement, during business hours and at other times as requested by the Agent. If the Agent visits the Client’s site and access is denied, the visit is chargeable as a Service Call.

4.7     The Agent may deliver the Goods by separate instalments.  Each separate instalment shall be invoiced and paid for in accordance with the provisions in these terms and conditions.

4.8     The Agent shall not be liable for any loss or damage whatsoever due to failure by the Agent to deliver the Goods and Services (or any of them) promptly or at all.

 

5      Risk

5.1     If the Agent retains ownership of the Goods and Services nonetheless, all risk for the Goods and Services passes to the Client on delivery.

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

 

6      Title

6.1     The Agent and Client agree that ownership of the Goods and Services shall not pass until:

(a)   all outstanding invoices for the particular Goods and Services have been paid by the Client; and

(b)   all other obligations on the behalf of the Client to the Agent have been met.

6.2     Receipt by the Agent 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 the Agent’s ownership or rights in respect of the Goods and Services shall continue.

6.3     It is further agreed that:

(a)   where practicable the Goods and Services shall be kept separate and identifiable until the Agent shall have received payment and all other obligations of the Client are met; and

(b)   if the Client fails make payment within 8 days of invoice due date then the Agent or the Agent’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 the Agent will not be liable for any reasonable loss or damage suffered as a result of any action by the Agent under this clause; and the action of repossession is chargeable as a Service Call

(c)   if all outstanding amounts are paid within 7 days of repossession the Goods will be returned to the Client and that return charged as a Service Call. If payment is not made in full within 8 days of repossession the Agent may sell the repossessed Goods to recover costs.  All the proceeds of such sale up to the balance owed belong solely to the Agent.  Any portion of the balance owing to the Agent not recovered in the sale is still owed.

 

7      Personal Property Securities Act 1999 (“PPSA”)

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

(a)   these terms and conditions constitute a security agreement for the purposes of the PPSA; and

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

7.2     The Client undertakes to:

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

(b)   indemnify, and upon demand reimburse, the Agent for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register or releasing any Goods and Services charged thereby;

(c)   not register a financing change statement or a change demand without the prior written consent of the Agent; and

(d)   immediately advise the Agent of any material change in its business practices of selling the Goods and Services which would result in a change in the nature of proceeds derived from such sales.

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

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

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

7.6     The Client shall unconditionally ratify any actions taken by the Agent under clauses 7.1 to 7.5.

 

8      Client’s Disclaimer

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

8.2     The Agent shall not be liable for any consequential, indirect or special loss or damage arising directly from any defect in materials or labour in any Goods or Services supplied or for any delays of costs of delays.

8.3     Unless insurance is specifically quoted as a separate service and invoiced as such, then the Agent carries no responsibility for loss, theft, burglary or damage in any circumstance. Insurance is the Client’s responsibility. The Client agrees that the Agent offers no cover on the Client’s goods or site access or loss of earnings or additional costs arising from delays nor any other cause.

 

9      Defects

9.1     The Client shall inspect the Goods on delivery and shall within seven (7) days of delivery (time being of the essence) notify the Agent of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote.  The Client shall afford the Agent 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 the Agent has agreed in writing

that the Client is entitled to reject, the Agent’s liability is limited to either (at the Agent’s discretion) replacing the Goods or repairing the Goods.  Further, liability is limited to the Goods supplied by the Agent, and does not cover any system the Goods may be installed into or associated with.

9.2     Goods will not be accepted for return other than in accordance with 9.1 above.

9.3     Any dispute the Client has must be raised in writing to the Agent within seven (7) days of delivery.  If an amount is in dispute, then the Agent shall quantify the amount represented by the dispute and accepts that this amount is not payable until the dispute is settled.  If an amount is in dispute and other amounts are owing by the Client to the Agent, these sums will still be payable as per clause 3.7.

9.4     For any dispute raised by the Client in writing prior to due date of the invoice the Agent shall quantify the amount and raise a credit note and a new invoice for The Dispute Amount which shall be due 7 days after resolution of the Dispute. It is agreed that the Client will settle the balance of the account being the total due less the credit note for the Dispute Amount by the original due date of the invoice.

9.5     For any dispute raised by the Client after the Due Date of the invoice then it is agreed that the invoice be paid in full and that after the dispute is resolved a credit is raised against future service if mutually agreed or a refund offered entirely at the discretion of the Agent. No interest will be chargeable on such a credit.

9.6     For any Dispute raised the Agent will provide written confirmation with 3 business days and set a meeting during business hours in a café selected by the Agent in Wellington or Lower Hutt or Petone or other mutually agreed location within 7 days as a Dispute Resolution Meeting. It is agreed that the Client and the Agent will attend the Dispute Resolution meeting in good faith with the intention to resolve the Dispute and sign a record of the resolution if reached or that if resolution cannot be reached at this meeting that if the Disputed amount is within the jurisdiction of the Disputes Tribunal that the Dispute will be heard at the Disputed Tribunal of the Wellington or Lower Hutt District Court and that both parties will be bound by that ruling with the cost of the hearing will be met by the Client by addition of the amount to the outstanding account. The Agent will lodge the hearing at the Disputes Tribunal and provide notice to the Client with 7 days of lodgement.

 

10     Returns

10.1    No returns will be accepted on products whose packaging has been opened or tampered with.

10.2    Returns will only be accepted provided that:

a)   the Client has complied with the provisions of 9.1 above; and

b)   the Agent has agreed in writing to accept the return of the Goods;

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

d)   the Agent will not be liable for Goods which have not been stored or used in a proper manner; and

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

10.3    The Agent will not accept the return of Goods for credit.

10.4    Returned goods may (at the Agent’s sole discretion) incur a restocking fee of 30%, with authorisation from the Client.  The Client will be made aware of this at the earliest possible time.

 

11     Warranty

11.1    The Agent provides no warranty on Goods or Services supplied. Subject to the conditions of warranty set out in Clause 11.2, the Agent warrants that if any defect in any workmanship of the Agent becomes apparent and is reported to the Agent within five (5) years of the date of delivery then the Agent will either (at the Agent’s sole discretion) replace or remedy the workmanship.

11.2    The conditions applicable to the warranty given by Clause 11.1 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 Goods; or

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

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

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

(c)   in respect of all claims the Agent 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.

11.3    For Goods not manufactured by the Agent, the warranty shall be the current warranty provided by the manufacturer of the Goods. The Agent 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.  Standard warranties are “Parts Only” with labour chargeable as a Service Call, unless the warranty specifies “On-Site Parts & Labour Warranty”.  If the Client’s claim is not accepted by the manufacturer, the Agent has no liability and can invoice for labour & disbursements related to the failed warranty claim.

11.4    Warranty is limited to the Goods supplied by the Agent, and does not cover any system, building or dwelling that  the Goods may be installed into or associated with.

 

12     Consumer Guarantees Act 1993

12.1    If the Client is acquiring Goods and Services 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 and Services by the Agent to the Client.

 

13     Default & Consequences Of Default

13.1    A client account is deemed to be in Default if the company has not received payment of invoice in full by the due date of that invoice by reason of the agent having not received made payment by the due date or if the client’s bank reverses a payment.

13.2    In the event that an account is in default for non-payment the company may now treat this as a Managed Account for which all activity directed toward securing payment is chargeable in addition to any other charges until the account is fully paid including;

(a)   one-time Managed Account Fee of $50.

(b)   on-going Management Fee of $20 per week until account paid in full

(c)   Administration Cost of $25 for each and every reminder letter or email sent to pursue any overdue account.

(d)   each and every phone call made to follow up an overdue account is chargeable at $25 per call plus $2 per minute.

(e)   disbursements for courier, documents serving and any other related costs.

13.3    Any and all discounts offered at time of invoice will be null and void and can be invoiced due for payment 7 days from invoice.

13.4    Interest on overdue invoices shall compound daily from the date when payment becomes due until the date of payment at a rate of 2.5% per calendar month invoiced as a minimum charge of $20 per month or part month payable 7 days from date of invoice.

13.5    If the Client defaults in payment of any invoice when due, the Company has the right to pass any unpaid client invoices plus follow up costs to a debt collection agency or credit management agent whose costs are added to the amount payable and the Client shall indemnify the company from and against all costs, including legal costs on a client and solicitor basis, business advise sought  and debt collection, incurred by the Company in pursuing the debt.

13.6    Any and all overdue amounts may be passed to a debt collection agency for collection for which a one-time Debt Management Fee of $50 plus 10% of the balance owed may be added plus the costs of debt collection as levied by the debt collection agency are added to the amount owed by the client including any field visits advised by the debt collection agency, court costs plus disbursements and labour at the normal rate to prepare and to attend court proceedings or hearings.

13.7    In any case where spread payment or progress payments or payments over a term were originally agreed the entire amount up to and including any and all final payments become due in full immediately upon any payment being in default.

 

14     Security And Charge

14.1    Despite anything to the contrary contained herein or any other rights which the Agent may have howsoever:

(a)   where the Client is the owner of land, realty or any other asset capable of being charged, the Client agrees to mortgage and/or charge all of their joint and/or several interest in the said land, realty or any other asset to the Agent or the Agent’s nominee to secure all amounts and other monetary obligations payable under these terms and conditions. The Client acknowledges and agrees that the Agent (or the Agent’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.

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

(c)   the Client agrees to irrevocably nominate constitute and appoint the Agent or the Agent’s nominee as the Client’s true and lawful attorney to perform all necessary acts to give effect to the provisions of this clause.

 

15     Unpaid Agent’s Rights

15.1    Where the Client has commissioned work performed by the Agent that cannot be reposed or has become and integral part of a building or structure and the Agent has not received or been tendered the whole of the Price, or the payment has been dishonoured, the Agent shall have:

(a)   a lien on the item or the structure in which it is incorporated

(b)   the right to obtain an item from the Client of similar value and to and retain the item for the Price while the Agent is in possession of the item;

(c)   a right to sell the item.

15.2    The lien of the Agent shall continue despite the commencement of proceedings, or judgement for the Price having been obtained.

15.3    Goods may be left with the Agent for no more than thirty (30) days.

15.4    The Agent has the right to place a lien or caveat on the item or the structure into which the service has been incorporated of another item of like value owned by the Client until the Price has been obtained in full. The legal cost of applying and removing such lien or caveat is added to the account payable by the Client

 

16     Cancellation

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

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

 

17     Privacy Act 1993

17.1    For the purposes of the Privacy Act 1993, the Client authorises the Agent to:

(a)   collect and use any information about the Client, for the purpose of assessing the Client’s creditworthiness, and for the additional purpose of marketing to the Client; and

(b)   disclose any information about the Client to any credit provider or agency for the purposes of providing or obtaining a credit reference, debt collection or notifying a default by the Client.

17.2    Where the Client is an individual, the authorities under clause 17.1 are authorities or consents for the purposes of the Privacy Act 1993.

17.3    The Client shall have the right to request the Agent for a copy of the information about the Client retained by the Agent, and the right to request the Agent to correct any incorrect information about the Client held by the Agent.

 

18     General

18.1    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.

18.2    Unless specifically notified to the contrary in advance, the Client authorises the Agent to accept any relevant End User License Agreement (EULA) on their behalf as the Client’s authorised agent or to apply for any required permit or license to apply any product used to deliver the service that may require such permission.  When a permit or license s required to use a product the Client will reimburse the Agent for the cost of the required permit or license when changed by the Agent to meet the needs of the Client, it is agreed that the Agent will accept the relevant EULA on behalf of the Client, acting as the Client’s agent, and that the Client will be the party entered into the Agreement and not the Agent.

18.3    In the event that these terms and conditions conflict with any other terms or conditions, these terms and conditions will take precedence.

18.4    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.

18.5    The Agent shall be under no liability whatsoever to the Client for any indirect loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by the Agent of these terms and conditions.

18.6    In the event of any breach of this contract by the Agent, the remedies of the Client shall be limited to damages which under no circumstances shall exceed the Price of the Goods and Services.

18.7    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 the Agent.

18.8    The Agent may assign, license or sub-contract all or any part of its rights and obligations without the Client’s consent.

18.9    The Agent 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 the Agent notifies the Client of such change.

18.10   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.

18.11   The failure by the Agent to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect the Agent’s right to subsequently enforce that provision.

18.12   It is agreed that a Variation Order is mutually agreed to if the circumstance of the service offered changes between time of offer and start of work or if the Client makes any alteration to the work environment that requires any additional service to be supplied by the Agent beyond the scope of the original service and such service shall be defined by the Agent in a Variation Order Acceptance.

18.13   The Client is responsible to ensure that the Agent and their staff are provided a safe work environment to perform this service.