Maxwell Construction Ltd

1.DEFINITIONS

a) “Maxwell Construction Ltd Means Its Successors and Assigns.

b) “Client” Shall Mean the Person/S Buying the Goods / Services and Any Person Acting on Behalf of And with The Authority of The Client.

c) “Guarantor” Means That Person (Or Persons), Or Entity That Agrees Herein to Be Liable for The Debts of The Buyer on A Principal Debtor Basis.

d) “Service” Shall Have the Same Meaning as Section 2 Of the Sale of Service Act 1908 And Are the Service Supplied by the “Maxwell Construction Ltd” To the Client (And Where the Context So Permits the Terms “Service” And “Services” Are Interchangeable.)

e) “Goods / Services” Shall Mean All Services Supplied By “Maxwell Construction Ltd” To the Client and Include Any Advice or Recommendations.

f) “Price” Shall Mean the Cost of The Service as Agreed Between “Maxwell Construction Ltd” And the Client Subject to Clause 4 Of This Contract.

2. ACCEPTANCE

a) Any instructions received by “Maxwell Construction Ltd” from the Client for the supply of Service shall constitute acceptance of the Terms and Conditions contained herein.

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

c) Upon acceptance of these Terms and Conditions by the Client the Terms and Conditions are irrevocable and can only be rescinded in accordance with these Terms and Conditions or with the written consent of the manager of the “Maxwell Construction Ltd”.

d) None of the “Maxwell Construction Ltd” agents or representatives are authorized to make any representations, statements, conditions, or agreements not expressed by the manager of the “Maxwell Construction Ltd” in writing nor is the “Maxwell Construction Ltd” bound by any such unauthorized statements.

e) The Client undertakes to give the “Maxwell Construction Ltd” not less than (7) days prior written notice of any proposed change in the Client’s name and or any change in the Client’s details (including but not limited to changes in the Client’s address facsimile phone number or business practice) and change of ownership.

3. Goods / SERVICE

The Goods and or Services are as described on the invoices, quotation, estimate, work authorization or any other work commencement forms as provided by “Maxwell Construction Ltd” to the Client.

4. PRICE and PAYMENT

4.1 At “Maxwell Construction Ltd” s sole discretion the Price shall be either.

a) The Price shall be as indicated on invoices provided by “Maxwell Construction Ltd” to the Client in respect of the Service supplied; or

b) The Price shall be “Maxwell Construction Ltd” s current price at the date of delivery of the Service according to “Maxwell Construction Ltd” s current Price list; or

c) The Price of the Service shall, subject to clause 4.2, be the “Maxwell Construction Ltd” s quote/estimate Price, which shall be binding upon the “Maxwell Construction Ltd.”
Provided that the Client shall accept in writing the “Maxwell Construction Ltd” quotation within 30 days.

4.2 Any variation from the plan of scheduled work or specification will be charged, based on the “Maxwell Construction Ltd” s quotation/estimate, and will be shown as extras on the invoice. Payment for extras must be made in full at the time of completion, and any requests by the Client for variations to the contract must be agreed to in writing by the “Maxwell Construction Ltd” prior to the variation being undertaken.

4.3 At the “Maxwell Construction Ltd” s sole discretion a deposit may be required. The deposit amount or percentage of the price will be stipulated at the time of order of the Service/Services and shall become immediately due and payable and is non-refundable.

4.4 Time for payment for the Goods/Services shall be of the essence and will be stated on the invoice, quotation, or any other forms. If no date is stated, then payment shall be on delivery of the Goods/Services.

4.5 At the “Maxwell Construction Ltd” ‘s sole discretion, payment for approved Clients shall be made by instalments in accordance with the “Maxwell Construction Ltd” delivery/payment schedule.

4.6 At the “Maxwell Construction Ltd” sole discretion, payment for approved Clients shall be due on the 20th of each month following the date of an invoice/ statement posted to the Client’s address or addresses for notices.

4.7 Payment will be made by cash, cheque, bank cheque direct credit, or any other method as agreed to between the “Maxwell Construction Ltd” and the Client.

4.8 The Price shall be increased by the amount of any GST and other taxes and duties which may be applicable except to the extent that such taxes are expressly included in any quotation/estimate given by the “Maxwell Construction Ltd”.

5. DELIVERY OF SERVICE

a) Delivery of the Service shall be made to the Client’s address. The Client shall make all arrangements necessary to take delivery of the Service whenever they are tendered for delivery or delivery of the Service shall be made to the Client at the “Maxwell Construction Ltd” s address.

b) Delivery of the Service to a carrier, either named by the Client or failing such naming to a carrier at the discretion of the “Maxwell Construction Ltd” for the purpose of transmission to the Client, is deemed to be a delivery of the Service to the Client.

c) Delivery of the Service to a third party nominated by the Client is deemed to be delivery to the Client for the purpose of this agreement.

d) The failure of the “Maxwell Construction Ltd” to deliver shall not entitle either party to treat this contract as repudiated.

e) The “Maxwell Construction Ltd” shall not be liable for any loss or damage whatsoever due to failure by the “Maxwell Construction Ltd” to deliver the Service (or any of them) promptly or at all.

f) The “Maxwell Construction Ltd” may deliver the Service by separate instalments (in accordance with an agreed delivery schedule). Each separate instalment shall be invoiced and paid for in accordance with the provisions in this contract.

6. RISK

a) If the “Maxwell Construction Ltd” retains property in the Service nonetheless all risk for the Service passes to the Client on delivery.

b) If any of the Service are damaged or destroyed prior to the property in them passing to the Client, the “Maxwell Construction Ltd” is entitled, without prejudice to any of its other rights to remedies under these Terms and Conditions (including the right to receive payment of the balance of the Price of the Service) to receive all insurance proceeds payable in respect of the Service. This applies whether the Price has become payable under these Terms and Conditions. The production of these Terms and Conditions by the “Maxwell Construction Ltd” is sufficient evidence of the “Maxwell Construction Ltd” rights to receive the insurance proceeds without the need for any person dealing with the “Maxwell Construction Ltd” to make further enquiries.

7. DEFECTS / RETURNS

a) The Client shall inspect the Service and shall within One (1) day of delivery notify the “Maxwell Construction Ltd” of any alleged defects, shortage in quantity, damage, or failure to comply with the description or quote. The Client shall afford the “Maxwell Construction Ltd” the opportunity to inspect the Service within a reasonable time following delivery if the Client believes the Service are defective in any way. If the Client shall fail to comply with these provisions the Service shall conclusively presumed to be in accordance with the Terms and Conditions and free from any defect or damage.

b) For defective Service which the “Maxwell Construction Ltd” has agreed in writing that the Client is entitled to reject, the “Maxwell Construction Ltd” s liability is limited to either (at the “Maxwell Construction Ltd” s sole

c) discretion) replacing the Service or repairing the Service provided that:

d) the Client has complied with provisions of Clause 7.1

e) the “Maxwell Construction Ltd” will not be liable for Service which have not been stored or used in a proper manner.

f) the Service are returned in the condition in which they were delivered and with all packaging material as is reasonable and possible in the circumstances.

g) In respect of all claims the “Maxwell Construction Ltd” shall not be liable to compensate the Client for any delay in either replacing or repairing the workmanship/Service or in assessing the Clients claim.

8. WARRANTY AND COLOUR FINISH

a) The “Maxwell Construction Ltd” will use its best endeavors and trade practices to provide a commercially acceptable finished product.

b) The “Maxwell Construction Ltd” provides no guarantee that the production prints will exactly match any supplied color proofs due to variations in proof perpetration methods and substrates.

c) The “Maxwell Construction Ltd” is not liable for variations or errors in the finished work where such errors or variations were contained in the proof approved by the Client.

d) For Service not manufactured by the “Maxwell Construction Ltd” the warranty shall be the current warranty provided by the manufacturer of the Service. The “Maxwell Construction Ltd” Shall be under no liability whatsoever except for conditions as detailed and stipulated in the manufacturer’s warranty.

9. DEFAULT & CONSEQUENCES OF DEFAULT

a) Interest on overdue invoices shall accrue from the date when payment becomes due and daily until the date of payment at the rate of 2.5% compounding per calendar month and shall accrue at such a rate after as well as before any judgement.

b) If the Client defaults on payment of any invoice when due, the Client shall indemnify the “Maxwell Construction Ltd” from and against all of the “Maxwell Construction Ltd” s costs and disbursements including on a solicitor and own client basis and in addition all of the “Maxwell Construction Ltd” s nominees cost of collection.

c) Without prejudice to any other remedies the “Maxwell Construction Ltd” may have, if at any time the Client is in breach of any obligations (including those relating to payment) the “Maxwell Construction Ltd” may suspend or terminate the supply of Service to the Client and any of its other obligations under the Terms and Conditions. The “Maxwell Construction Ltd” will not be liable to the Client for any loss or damage the Client suffers because the “Maxwell Construction Ltd” exercised its rights under this clause.

d) If any account remains unpaid at the end of the second month after supply of the Service or Services, the following will apply: An immediate amount shall be levied for administration fees which sum shall become immediately due and payable in addition to interest payable under clause 9.1 hereof.

In the event that

1. any money payable to the “Maxwell Construction Ltd” becomes overdue or in the “Maxwell Construction Ltd” 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 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 then without prejudice to the “Maxwell Construction Ltd” s other remedies at Law.
4. the “Maxwell Construction Ltd” shall be entitled to cancel all or and part of the order of the Client which remains unperformed in addition to and without prejudice to and other remedies: and (e) all amounts owing to the “Maxwell Construction Ltd” shall, whether due for payment, immediately become due and payable.

10. TITLE

a) It is the intention of the “Maxwell Construction Ltd” and agreed by the Client that property in the Service shall not pass until; (a) the Client has paid all amounts owing for the Service and:

b) the Client has met all other obligations due by the Client to the “Maxwell Construction Ltd” in respect of all the contracts between the “Maxwell Construction Ltd” and the Client, and that the Service, or proceeds of the sale of the service, shall be kept separate until the “Maxwell Construction Ltd” has received payment and all other obligations of the Client are met.

11. PERSONAL PROPERTY SECURITIES ACT 1999

a) Upon assenting to these Terms and Conditions in writing the Client acknowledges and agrees that:

• These Terms and Conditions constitute a security agreement for the purpose of the PPSA and:
•  A security interest is taken in all Service previously supplied by the “Maxwell Construction Ltd” to the Client and all Service that will be supplied in the future by the “Maxwell Construction Ltd” to the Client during the continuance of the parties’ relationship.

b) The Client undertakes to:

• Sign any further documents and/or provide any information. Such information to be complete and accurate and up to date in all respects which the “Maxwell Construction Ltd” may reasonably require to register a financing statement or financing charge statement on the Personal Properties Security Register.
•  Indemnify and upon demand reimburse the “Maxwell Construction Ltd” for all expenses incurred in registering a financing statement or financing charge statement on the Personal Properties Security Register or releasing any Service charged thereby not registering a financing charge statement or a charge demand without the prior written consent of the “Maxwell Construction Ltd.”
• Give the “Maxwell Construction Ltd” not less than fourteen (14) days prior written notice of any proposed change in the Clients name and/or any other changes in the Clients details (including but not limited to change to the Clients address contact numbers or business practice) and:
• the Client will immediately give advice to the “Maxwell Construction Ltd” of any material change in its business practices of selling the Service which would result in a change in proceeds derived from such sales. 11.3 The “Maxwell Construction Ltd” and the Client agree that nothing in sections 114(1)(a) 133 and 134 of the PPSA shall apply to these Terms and Conditions.
• The Client waives its rights as a debtor under sections 116,120(2), 121,125,126,127,129,131 and 132 of the PPSA.
• Unless otherwise agreed to in writing by the “Maxwell Construction Ltd” the Client waives its rights to receive a verification statement in accordance with section 148 of the PPSA.
• The Client unconditionally ratifies any action taken by the “Maxwell Construction Ltd” under and by virtue of the power of attorney given by the Client to the “Maxwell Construction Ltd” under clauses 11.1 to 11.5.

12. SECURITY & CHARGE

12.1 Despite anything to the contrary contained herein or any other rights which the “Maxwell Construction Ltd” may have, howsoever.

• Where the Client and or the Guarantor (if any) is the owner of land, realty or and 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 the “Maxwell Construction Ltd” or the “Maxwell Construction Ltd” s nominee to secure all amounts and other monetary obligations payable under the Terms and Conditions.
• The Client an/or the Guarantor acknowledge and agree that the “Maxwell Construction Ltd” (or the “Maxwell Construction Ltd” s nominee) shall be entitled to lodge where appropriate a caveat and that caveat shall be released once all payments and other monetary obligations payable hereunder have been met.
• Should the “Maxwell Construction Ltd” elect to proceed in any manner in accordance with this clause and or its sub- clauses the Client and or Guarantor shall indemnify the “Maxwell Construction Ltd” from and against all the “Maxwell Construction Ltd” s costs and disbursements including legal costs on a solicitor and own client basis.
• To give effect to the provisions of clause 12, 12.1(a) to (b) inclusive hereof the Client and/or the Guarantor (if any) do hereby irrevocably nominate constitute and appoint the “Maxwell Construction Ltd” or the “Maxwell Construction Ltd” s nominee as the Clients and/or Guarantors true and lawful attorney to execute mortgages and charges (whether registerable or not) including such other Terms and Conditions as the “Maxwell Construction Ltd” and or the “Maxwell Construction Ltd” s nominee shall see if his/her/its/their absolute discretion against the joint and or several interest of the Client and/ or the Guarantors in any land realty or asset in favor of the “Maxwell Construction Ltd” and in the Clients and/or the Guarantors name as may be necessary and other acts including instituting any necessary legal proceedings and further to execute all or any documents in the “Maxwell Construction Ltd” s absolute discretion which may be necessary or advantageous to give effect to the position of this clause.

13. CONSUMER GUARANTEES ACT 1993

This agreement is subject, in all cases except where the Client is contracting within the Terms and Conditions of a trade/business (which cases are specifically excluded) to the provisions of the Consumer Guarantees Act 1993.

14. CANCELLATION

a) “Maxwell Construction Ltd” may cancel these Terms and Conditions or cancel delivery of the Service and Services at any time before the Service is delivered by giving written notice. On giving such notice “Maxwell Construction Ltd” shall promptly repay the Client any sums paid in respect of the price for the Service. The “Maxwell Construction Ltd” shall not be liable for any loss or damage arising from such cancellation.

b) At “Maxwell Construction Ltd” s sole discretion the Client may cancel delivery of Service and/or Services. If the Client cancels delivery of Service and/or Services, the Client shall be liable for any cost incurred by “Maxwell Construction Ltd” up to the time of cancellation.

15. PRIVACY ACT 1993

a) The Client and the Guarantors (if separate from the Client) authorize the “Maxwell Construction Ltd” to collect, retain and use any information about the Client, to assess the Client’s creditworthiness or market any Service and services provided by the “Maxwell Construction Ltd” to any other party.

b) The Client authorizes the “Maxwell Construction Ltd” to disclose any information obtained to any person for the purpose set out in clause 15

c) Where the Client is a natural person the authorities under (clause 15.1 and 15.2) are authorities or consents for the Privacy Act 1993.

16. BUYERS DISCLAIMER

a) The Client hereby disclaims any right to rescind or cancel the contract or to sue for damages or to claim restitution arising out of any misrepresentation made to them by any servant or agent of the “Maxwell Construction Ltd” and the Client acknowledges that they buy the Service relying solely on their skill and judgement and that the “Maxwell Construction Ltd” shall not be bound by nor responsible for any term, condition, representation or warranty other than the warranty given by the “Maxwell Construction Ltd” which warranty shall be personal to the Client and shall not be transferable to any subsequent Client.

17. CONTRACTUAL REMEDIES ACT

a) The provisions of the Contractual Remedies Act 1979 shall apply to this contract as if section 15(d) of the Act which states that nothing in the Act shall affect the Sale of Service Act 1908 was omitted from the Contractual Remedies Act 1979. 18. LIEN
Where the “Maxwell Construction Ltd” has not received or been tendered the whole of the price, or the payment has been dishonored, the “Maxwell Construction Ltd” shall have; (a) a lien on the Service.

b) the right to retain them for the price while the “Maxwell Construction Ltd” has them a right to stop the Service in transit whether or not delivery has been made or ownership has passed; and a right of resale
c) the foregoing right of disposal provided that the Lien of the “Maxwell Construction Ltd” shall continue despite the commencement of proceedings or judgment for the price having been obtained.

18. GENERAL

a) All Service and Services supplied by the “Maxwell Construction Ltd” are Subject to the laws of New Zealand and that the “Maxwell Construction Ltd” takes no responsibility for changes in the Law that affect the Service and Services supplied.

b) If any provision of these Terms and Conditions shall be invalid, void, or illegal or unenforceable the validity existence, legality and enforceability of the remaining provisions shall not be affected or prejudiced or impaired.

c) The “Maxwell Construction Ltd” 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 “Maxwell Construction Ltd” of these Terms and Conditions.
In the event of any breach of this contract by the “Maxwell Construction Ltd” the remedies of the Client shall be limited to damages. Under no circumstances shall the liability of the “Maxwell Construction Ltd” exceed the price of the Service.

d) The Client shall not set off against the Price amounts due from the “Maxwell Construction Ltd”

e) Neither party shall be liable for any default due to any act of God, terrorism, war, earthquake strike, lock out, industrial action, flood, storm or other event beyond the reasonable control of either party.

f) The “Maxwell Construction Ltd” may license or sub-contract all or any part of its rights and obligations without the Clients consent.

g) The “Maxwell Construction Ltd” shall not be liable for errors or omissions arising from oversight or a misinterpretation of the

Clients verbal instruction.

h) The “Maxwell Construction Ltd” reserves the right to review these Terms and Conditions at any time and from time to time. If following any such review, there is to be any change in the Terms and Conditions that change will take effect from the date on which the “Maxwell Construction Ltd” notifies the Client of such change.