Terms of trade:

Thank you for contacting us regarding providing fencing services to you. Please see listed below our terms of trade. Please indicate your acceptance of these terms and conditions by signing the appropriate line below. Work will not begin on any fence until the customers have signed the attached schedule.

  1. Definitions

    • In these terms and conditions:

      • “agreement” means the agreement between the customers and the contractor for the provision of goods and services by the contractor of which these terms and conditions form part;

      • “contractor” means the contractor as set out in the schedule;

      • “customers” means customer one and customer two, both jointly and severally, as set out in the schedule to whom the goods and services are to be supplied;

      •  “goods” means all goods supplied by the contractor in the course of performance of this agreement;

      • “price” means:

        • where a quote has been given, the price for the work recorded in that quote;

        • otherwise, the contractor’s usual charges for completing the work,

        • Plus any additional charges pursuant to these terms and conditions, plus GST;

  • “property” means the property, premises, site, or location where the work is to be completed, the goods are to be delivered and/or the services provided by the contractor;

  • “quote” means any quotation or estimate provided by or on behalf of the contractor;

  • “schedule” means the schedule annexed to this agreement;

  • “secured goods” means the goods referred to in clauses 8.5.1– 8.5.3 (inclusive);

  • “services” means all services supplied or required to be supplied by the contractor in the course of performance of this agreement;

  • “Work” includes all goods and services supplied or required to be supplied by the contractor in the course of performance of the agreement and as further defined in the schedule.

  • Acceptance of Terms and Conditions

    • Execution of this agreement by the customers will be taken as acceptance by the customers of these terms and conditions.

    • The customers agree that they are jointly and severally liable for all of the customers’ obligations as recorded in this agreement.

  • Quotes and Estimates

    • All quotes are provided strictly on the following basis:

      • the work to be completed to which the quote relates will proceed smoothly and there are no unforeseen difficulties with the work;

      • where the quote is supplied without the contractor viewing the property, the quote is subject to contractor viewing the property;

      • if additional work is required that could not be foreseen by contractor at the time of providing the quote, then the contractor may at its option either cancel this agreement or charge for such additional work at the contractor usual rate.

  1. Price

    1. All goods and services are supplied at the price ruling at delivery date and the contractor reserves the rights to pass on to the customers any change in price after the date of any quote.

    2. All prices as quoted are exclusive of goods and services tax unless otherwise stated.

  2. Variations

    1. No variations to the work originally contracted for shall be carried out without the agreement of the customers and the contractor.  Where the customers and the contractor have agreed to a variation to the works, the contractor will be entitled to charge for the work involved in such variation at the contractor’s usual rate.

    2. The customers acknowledge that the estimated completion date as set out in the schedule is an estimate and that this date is subject to change.  The contractor does not warrant completion of the work by this date.

  3. Payment

    1. The price shall be paid to the contractor, without set-off or deduction, as follows:

      1. the customers shall each pay 25% of the price as recorded in the quote and as further set out in the schedule (or if no quote has been provided then such amount as the contractor shall determine) as a deposit immediately upon acceptance of the quote or entry into the agreement, (whichever is the earlier); and

      2. the customers shall pay the balance of the price as recorded in the quote or if no quote has been provided then such amount as the contractor shall determine and as further set out in the schedule (including any additional charges) within 10 working days of an invoice being issued.  The parties acknowledge that any works that continue for more than one month will be invoiced monthly.

    2. If full payment is not made by the customers to the contractor in accordance with clause 6.1 above then the customers will be in default under this agreement and the contractor may exercise any of the rights and remedies set out in this agreement and otherwise available at law; and:

      1. the customers will each pay interest on the default monies at the rate of 2% per month payable on a daily basis from the due date plus a $5.00 book keeping fee;

      2. the customers will be liable for all expenses (including solicitor - own client legal costs) incurred by the contractor as a result of the default, including all expenses incurred in attempting to, or enforcing, any rights of the contractor under this agreement;

      3. the customers shall be liable for and indemnify the contractor against any actions, claims, damages, and proceedings whatsoever arising out of the works and/or the supply of goods and/or services under this agreement; and

      4. the contractor may withhold the further supply of goods and services.

  4. Liability on Claims

    1. All claims against the contractor by the customers must be made within 10 working days of receipt of the contractor’s invoice. The contractor reserves the right in its discretion to repair or replace goods or to credit the portion of the price applicable to the goods and services in respect of any claims accepted.  The contractor will use its best endeavours to enforce any guarantees or warranties given by the manufacturer of goods supplied by the contractor.

    2. The total liability of the contractor for any loss arising from any defect or non-compliance of the goods and services or any other breach by the contractor of its obligations under the agreement will not in any circumstances exceed the price quoted by the contractor.

    3. The contractor will not be liable for:

      1. any consequential indirect or special damage or loss of any kind; or

      2. any loss caused by the customers’ servants, agents or any other persons whatsoever.

    4. The customers will indemnify the contractor against any claim by the customers’ servants, agents or other persons in respect of any loss arising from any defect in or non-compliance of the goods and services or in respect to any other matter whatsoever.

    5. No warranty, condition or guarantee either express or implied is given by the contractor as to the quality, state or condition of any goods or as to their appearance, content or fitness for any particular purpose.

  5. Ownership

    1. Title in and ownership of the goods remains with the contractor until all money due to the contractor (whether under this agreement or otherwise) by the customers has been paid in full.

    2. The customers are a fiduciary for the contractor and have a fiduciary duty to account to the contractor for the goods.  If the goods are sold the customers receive the proceeds of sale as a trustee for the contractor and will place the proceeds of the sale in a separate bank account for the benefit of the contractor.  The customers have no right to assert against the contractor that it owns the goods or the proceeds of sale of the goods or any part of them until title has passed.

    3. If the contractor’s goods become mixed with or incorporated in any other goods, property or materials in such a way that they cease to exist as separate goods, the original ownership of the new goods created by that mixing will vest immediately on creation in the contractor as co-owner of the new goods with the owner of any other materials which become part of the new goods.  The co-ownership will be calculated proportionally to the value of the various component materials.  The contractor's ownership of the new goods is otherwise on the same terms as the ownership of the goods originally supplied.

    4. If the customers are in default under these terms and conditions or if one of the events described in clause 16.1 occurs, the customers will at the contractor’s request:

      1. return the goods to the contractor or do anything reasonably necessary to allow the contractor to retake possession of them;

      2. instruct any third parties who owe money in respect of the goods to pay that money directly to the contractor; and

      3. make any records available which may assist the contractor to trace the proceeds of sale of the goods.

    5. The customers hereby grant a security interest registerable on the Personal Property Securities Register to the contractor in respect of:

      1. the goods;

      2. any new goods in terms of clause 8.3; and

      3. any other goods or personal property owned by the customers that have been installed or worked on by the contractor or which are required for the completion of the work, and

the customers waive their rights to receive a verification statement in respect of such registration.

(the “secured goods”)

  1. The secured goods will not become fixtures on any land while the customers owe any money to the contractor, regardless of the degree to which and purpose for which they are fixed to the land (subject to the prior rights of any mortgagee of the land).

  2. If the customers are in default under these terms and conditions or if one of the events described in clause 16.1 occurs, then the contractor will be entitled without notice to repossess the secured goods.  The customers authorise the contractor or its representatives, servants, agents or employees to enter the property where the secured goods are situated for the purpose of repossession.  The contractor will not be liable for any costs, expenses, damage, loss of any kind suffered by the customers as a result of repossession.

  3. If the contractor takes possession of the secured goods or the proceeds and after deduction of all money the customers owe to the contractor (including any interest due and including any expense occurred by the contractor in enforcing its rights including legal expenses as between solicitor and client) there is a surplus, the contractor will pay that surplus to the customers.

  1. Consumer Guarantees Act

    1. Where the contractor is supplying goods and services to the customers for business purposes within the meaning of that phrase under section 43 the Consumer Guarantees Act 1993, the provisions of that Act will not apply to this agreement.

    2. Where the contractor is supplying goods and services to the customers other than for business purposes the provisions of clauses 7.2 – 7.5 (inclusive) above will have no effect and the provisions of the Consumer Guarantees Act 1993 will apply.

  2. Information and Privacy Act

    1. For the purpose of facilitating the efficient running of the contractor’s business, the customers authorise the contractor:

      1. to collect all information it may require from any third parties and authorises those third parties to release that information to the contractor;

      2. to hold all information given by the customers or any third parties to the contractor; and

      3. to use that information, including giving information to any other person, undertake credit checks on the customers and to facilitate collection of debts from the customers.

    2. The information will be collected, held and used on the condition that:

      1. it will be held securely at the contractor's registered office;

      2. it will be accessible to any of the contractor's employees and agents who need access to it for the efficient running of the contractor’s business; and

      3. the customers may request access to and correction of it at any time.

  3. Delivery & Risk

    1. The contractor is not responsible for delays in delivery of the goods and services beyond its control.

    2. Unless otherwise agreed, the delivery point will be at the property where the work is to be completed.

    3. Risk in goods supplied will pass to the customers when the goods are delivered to the property.

  4. Waiver and Forbearance

    1. All of the contractor’s rights will remain in full force despite any delay in enforcement.  The contractor will not be deemed to have waived any condition unless that waiver is in writing and signed by a duly authorised officer of the contractor.  Any waiver will apply only to the particular matter in respect of which it is given.

  5. Assignment

    1. The contractor is entitled at any time to assign its rights under the agreement.  The assignee will be entitled to claim full rights of set off or counter claim against the customers, its charge holders or successors in respect of the debt or part of the debt which is assigned.

    2. The customers are not entitled to assign their rights under this agreement.

  6. Entire Agreement

    1. The contractor and the customers agree that these terms express the complete agreement between them.  There has been no representation made by either party to the other except as expressly set out in this document. There is no inconsistency with the terms of any order that may be lodged by the customers. If there is any inconsistency then any such order will be of no effect.  The contractor reserves the right to amend and update the terms of this agreement by written notice to the customers. 

  7. No Reliance

    1. Each party acknowledges that it:

      1. has not been induced to enter into this agreement by any representation or statement of fact or opinion made by or on behalf of any other party; and

      2. enters into this agreement solely in reliance on its own skill and judgment and not in reliance on any statement, representation or warranty made by or on behalf of any other party.

  8. Termination

    1. This agreement (including any unperformed obligations of the contractor) may be terminated by the contractor’s written notice to the customers that no further goods and services will be supplied due to:

      1. the customers’ default under the agreement; or

      2. the customers becoming insolvent; or being subject to the appointment of a receiver, manager, liquidator, or statutory manager; or committing an act of bankruptcy; or making a scheme of arrangement with its creditors; or being unlikely to be able to meet its obligations to the contractor (in the opinion of the contractor).

    2. The agreements of the parties will not merge with termination under this clause.