Terms of Trade
Last updated April 2023
All our quotations are subject to the following conditions. Acceptance of our quotation implies:
1) Accepting and agreeing to abide by the terms of trade specified below; and
2) Giving the necessary approvals, consents, authorisations under the Privacy Act 1993; and
3) Acknowledging that a copy of the terms of trade has been received, read, and understood; and
4) Agreeing that these terms of trade will apply to all contracts.
1. GENERAL
a) In this agreement the “Company” is Allen Fencing Limited, trading in New Zealand as Allen
Fencing its permitted assigns, and successors, and where the context permits the entitlements of
the Company shall extend to employees, or subcontractors of the Company as appropriate.
b) If any provisions of these terms are unenforceable, that term will be deemed modified to the
extent necessary to make it enforceable or if modification is impractical, the provision will be
deemed deleted without affecting the remainder of terms.
c) These terms may only be varied by the written agreement of the Company and its nominated
Director(s).
d) Any notice required to be served by either party shall deemed to have been properly served if left
at or posted in a pre-paid letter addressed to the other party at the place of business or residence
of such party and any service by post shall be deemed to have been affected when the letter
containing such notice is delivered in the ordinary course of post.
e) These terms shall be governed by and construed in accordance with the laws of New Zealand.
2. ENTIRE CONTRACT
a) This agreement together with all quotes once supplied, supersedes all previous agreements,
understandings, negotiations, representations, and warranties about its subject matter, and
embodies the entire agreement between the Company and the customer about its subject matter.
b) The customer acknowledges that no representations and warranties about the subject matter of
this agreement have been made by, or on behalf of, the company except as expressly set out in
this agreement and that the customer has not relied on any representations or warranties about
the subject matter of this agreement, and the quotes given by or on behalf of the company,
except expressly provided in this quote.
3. PAYMENTS
a) All payments shall be made by the due date of the invoice unless otherwise arranged in advance
and confirmed in writing by the Company.
b) Payment is the responsibility of the customer who initiated the contract. Where the Company
orders materials to fulfill this contract and the client cancels the contract, the client remains liable
for the balance of the retail price of the goods over and above the deposit held (if any). On
payment of the balance, materials will be handed over to the client.
c) The Company reserves the right to withdraw or refuse credit facilities or to require payment of a
deposit before delivery or services are provided.
d) Failure to comply with payment terms will incur penalty Interest at 10% per month calculated on-a
monthly-basis, on all outstanding amounts from the date on which the payment was due until
actual date of payment. Any expenses, disbursements, and costs (including solicitors fees or debt
collection agency fees) incurred by the Company in the event of customer default are payable by
the customer.
e) Payment by bill of exchange or by cheque shall not be deemed payment until the bill of exchange
or cheque has been paid by the bank and has been credited to the Company bank account.
f) Where a quotation is supplied by the Company, it is valid for 30 days from the date on the
quotation. Increases will be calculated in accordance with an established industry formula and
audited certification can be provided if required at the purchaser's cost.
g) Quotations are based on current labor rates and material costs. The Company reserves the right
to change the price:
a. if the Goods requested are changed; or
b. if the Services originally contracted for are changed; or
c. where additional services are required due to the discovery of hidden or identified
difficulties (including, but not limited to, poor weather conditions, poor access to site,
unavailability of machinery, unsafe conditions, work by any third party not completed,
hidden building defects, change of specifications, hard rock barriers below the surface or
iron reinforcing rods in concrete, hidden pipes and/or wiring in walls etc) which are only
discovered on commencement of the services; or
d. in the event of increases to the Company in the cost of labor or goods beyond the
Company control.
4. SERVICES
a) “Services” shall include all labor, parts, expenses and sub-contractors’ services supplied by the
Company to you. All invoices rendered shall include services provided.
5. FREIGHT
a) All product prices exclude freight charges unless otherwise specified and advised in writing to the
customer. The Company reserves the right to levy a freight surcharge where urgent delivery is
requested by the customer. Under the Contract and Commercial Law Act all claims for loss of or
damage to goods must be made on the carrier within 30 days from the date of invoice.
6. INSURANCE
a) The Company maintains a public liability insurance policy indemnifying the Company against
claims in respect of loss or damage against any property or injury or death or illness to any of its
subcontractors in connections with the execution of services.
7. ACCURACY OF CUSTOMER’S PLANS AND MEASUREMENTS
a) This quotation is, unless shown herein, based on construction of unobstructed areas.
b) The Company is entitled to rely on the accuracy of any plans, specifications and other information
provided by the Customer. The Customer acknowledges and agrees that if any of this information
provided by the Customer is inaccurate that the Company accepts no responsibility for any loss,
damages or costs resulting from these inaccurate plans, specifications, or other information.
c) In the event the Customer gives information relating to measurements and quantities of goods
required in completing the services, it is the Customer’s responsibility to verify the accuracy of the
measurements and quantities before the Company places an order based on these
measurements and quantities.
d) Photos are sent as indicative illustrations only and may not represent the final product. Any
detailed expectation from the customer should be identified to the Company to ensure
expectations are met.
e) All heights of fences as shown shall be nominal only and fences shall be constructed from
standard construction components that shall yield the closest heights under that nominated. The
fence height may vary in relation to the undulation of the land along the fence line. All fence
heights shall be measured from the bottom of the palings or pickets as the case may be to the top
of the fence. Gaps may appear at the bottom of the fence and the Company may fill in these gaps
at an additional cost.
8. ACCESS
a) The Customer shall ensure that the Company always has unimpeded access to the work site to
enable the Company to deliver goods or services. The Company shall not be liable for any loss or
damage to the site (including and without limitation to, damage to pathways, vehicles, driveways
and concreted or paved or grassed areas) unless due to the negligence of the Company.
b) Prior to the Company commencing any work the Customer must advise the Company of the
precise location of all underground services on the site and clearly mark the location. The
underground mains and services the Customer must identify include, but are not limited to,
telephone cables, fibre optic cables, electrical services, gas services, sewer services, pumping
services, sewer connections, sewer sludge mains, water mains, irrigations pipes, oil pumping
mains and any other services on site.
c) Whilst the Company will take all care to avoid damage to any underground services the Customer
agrees to indemnify the Company in respect of all any liability claims, loss, damage, cost, and
fines because of damage to services not precisely located and notified pursuant to this clause.
d) No allowance has been made for underground obstructions such as, but not limited to rocks and
tree roots. We allow 15 minutes per standard post hole. Any additional time required will be
charged to the client at $50 per hour + GST.
e) Unless otherwise provided in this quotation, the customer shall clear all obstructions and provide
a clear working area and access. If the customer fails to remove obstructions then costs for
removal shall be payable by the customer at $50 per labour hour (+ gst) plus any costs for
equipment.
f) Unless otherwise provided in this quotation it is the customer’s responsibility to obtain any
necessary permits.
g) All pegs and boundaries are to be marked by the customer who shall continue to be responsible
for the position of the fence and any other claims arising there from.
h) The Company will remove any rubbish, off-cuts, packaging straps, and cement bags on
completion. However we do not remove excess soil generated from excavations. The Company
does not provide for the removal of old fencing unless expressly provided for in the quotation.
9. GUARANTEE
a) The Company guarantees its products as per suppliers guarantee.
10. TITLE AND SECURITY (Personal Property Security Act 1999)
a) Title in any goods supplied by the Company passes to the customer only when the customer has
made payment in full for all goods provided by the Company and of all other sums due to the
Company by the customer on any account whatsoever. Until all sums due to the Company have
been paid in full by the customer, the Company has a security interest in all goods.
b) The customer grants to the Company a personal property security in the goods (by virtue of the
Retention of Title clause in these terms) and all goods previously supplied by The Company to
the customer (if any) and all after acquired goods supplied by The Company to the customer.
c) The customer agrees to:
i) Sign any further document and provide any further information which the customer
warrants to be complete, accurate and up to date in all respects, which the Company
may reasonably require to register a financing statement or financing change statement
on the personal property securities register.
ii) Not register a financing change statement or a change demand without the prior written
consent of The Company.
iii) Give the Company no less than 14 days written notice of any change of the customer’s
name or other change in the customer’s details (including but not limited to changes in
address, facsimile number, trading name or business practice).
iv) Indemnify the Company for any costs incurred by it in relation to the above. e. Waive any
rights to receive a copy of the verification statement under the Personal Property
Securities Act and agrees to the extent permitted by law that under this contract:
1) The customer will have no rights under (or by reference to) Section 114(1) or 133
of the Personal Property Securities Act.
2) The provisions of Part 9 of the Personal Property Securities Act which are for the
benefit of the customer or place obligations on The Company will apply only to
the extent that they are mandatory.
3) Where the Company has rights under this contract additional to those in Part 9 of
the Personal Property Securities Act, those rights will continue to apply.
d) In the event the customer refuses to comply with its obligations under the above clause, by
signing this document the customer grants to the Company, power of attorney to sign all
documents giving the Company a personal property security in the goods.
e) If the goods are attached, fixed or incorporated into any property of the customer, by way of any
manufacturing or assembling process by the customer or any third party, title in the goods shall
remain with The Company until the customer has made payment for all goods and where those
goods are mixed with other property so as to be part of or a constituent of any new products, title
to these new products shall be deemed to be assigned to The Company as security for the full
satisfaction by the customer of the full amount owing between The Company and the customer.
f) The customer gives irrevocable authority to the Company to enter any premises occupied by the
customer or on which products are situated at any reasonable time after default by the customer
or before default if the Company believes a default is likely and to remove and repossess any
goods and any other property to which goods are attached or in which goods are incorporated.
The Company shall not be liable for any costs, damages, expenses or losses incurred by the
customer or third party as a result of this action, nor liable in contract or in tort or in otherwise in
any way whatsoever unless by statute such liability cannot be excluded.
g) The Company may either resell any repossessed goods 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 goods and credit the customer’s account with the invoice value less
such sum as The Company reasonably determines on account of wear and tear, depreciation,
obsolescence, loss or profit and costs.
11. CONSTRUCTION CONTRACTS ACT 2002
a) The Customer hereby expressly acknowledges that:
i) The Company 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 Customer and:
1) the payment is not paid in full by the due date for payment and no payment
schedule has been given by the Customer; or
2) a schedules amount stated in a payment schedule issued by the Customer in
relation to the payment claim is not paid in full by the due date for its payment; or
3) the Customer has not complied with an adjudicator’s notice that the Customer
must pay an amount to the Company by a particular date; and
4) The Company has given written notice to the Customer of its intention to
suspend the carrying out of construction work under the construction contract
ii) If the Company 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 have
suffered by the Customer or by any person claiming through the Customer; and
3) is entitled to extensions of time to complete the contract; and
4) keeps its right 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.
iii) If the Company exercises the right to suspend work, the exercise of that right does not
1) affect any rights that would otherwise have been available to the Company under
Contract and Commercial Law Act or
2) enable the Customer to exercise any rights that may otherwise have been
available to the Customer under that Act as a direct consequence of the
Company suspending work under this provision.
12. CUSTOMER INFORMATION
a) The company may need to contact the customer to ascertain construction options or to consult
the client on problems that have become apparent after commencement. The Company must be
able to contact the customer once the job has commenced should the need arise. If the Company
cannot contact the customer, the Company will use its own judgment as to how to handle the
issue.
b) In accordance with the Privacy Act 1993 the customer authorises the Company to obtain such
information as it may require in response to their enquiries from any source to determine the
customer’s credit worthiness and to be used as a guide concerning credit limits.
13. CONSUMER GUARANTEES ACT
a) Where the Company supplies the goods to the customer for the customer’s use in a business for
the purpose of the business, the customer agrees that the Consumer Guarantees Act does not
apply. Where the Company supplies the product to a customer as a “consumer” as defined in the
Consumer Guarantees Act for a nonbusiness purpose, the Consumer Guarantees Act will apply
and prevail over any contrary provision in these terms and conditions
14. WARRANTIES/GUARANTEES
a) The Company guarantees that:
i) The Works will conform to the Statement of Work; and
ii) The Goods will be free from material defects at the time of installation and for the period
contained in the Manufacturer’s Warranty (“Warranty Period”).
b) The Company guarantees that it will repair or make good any defects in its Workmanship arising
within one year following completion of the Services for which the defect is claimed,
(“Workmanship Guarantee”). This Workmanship Guarantee is subject to the following conditions:
i) The Workmanship Guarantee does not apply to the Goods provided (for which the
Customer acknowledges clause 13.1 of this agreement applies):
ii) The Company’s liability in respect of all claims arising from the Workmanship Guarantee
will be limited to the labour value of the workmanship.
iii) The Workmanship Guarantee does not cover any occurrence which would normally be
covered by public liability insurance or any other form of insurance.
iv) The Workmanship Guarantee does not apply where alterations or repairs are made by
the Customer or any third party to the Works without the knowledge and prior written
consent of the Company (and without the Company first having the opportunity to remedy
the same to its satisfaction).
v) The benefit of the Workmanship Guarantee is not assignable by the Customer to any
other person.
vi) The Workmanship Guarantee does not apply for so long as the Works have not been
completed in full or the Customer is in default in relation to any payment owing to the
Company; and
vii) The Workmanship Guarantee does not apply to any appliance service repair work.
viii) The Workmanship Guarantee does not cover any indirect, special, incidental, or
consequential loss or damage, however caused; and the Company is not liable to carry
out any remedial work under the Workmanship Guarantee unless they receive written
notice from the Customer of the claim within seven days after discovery of the defect.
c) The Company will not be liable for any indirect, special, incidental, or consequential loss or
damage, however caused.
d) The maximum liability of the Company in relation to the supply of Goods and/or Services will not
exceed the amount paid by the customer for those Goods and/or Services.
15. SERVICES INTERRUPTION
a) “Services Interruption Event” means an interruption to a Works caused by; a Force Majeure
Event, the Customer’s failure to carry out or perform any obligation required of it under this
agreement which in the sole opinion of the Company does or may cause a delay in the Works
and any other matter which in the reasonable opinion of the Company will cause an interruption
or delay in the performance of the Works.
b) Without prejudice to any other right or remedy of the Company, the parties acknowledge that from
time to time a Services Interruption Event may occur and, in that case, such occurrence will delay
the Works and will entitle the Company to immediately cease the performance of all or any part of
the Works until the Services Interruption Event ends or is remedied (as the case may be).
c) The Customer acknowledges that there may be an Additional Expenses Charge relating to
recommencement of the Works after the occurrence of a Services Interruption Event. d) The
Customer agrees to pay the Additional Expenses Charge upon rendering of an invoice by the
Company
16. DISPUTES ACCOUNTS
a) The customer must notify the Company in writing within five days of receipt of any disputed
invoice. The notification must quote the relevant invoice number and must include all the
necessary details of the reason the invoice is being disputed.
b) Should the customer fail to notify The Company of any dispute, defect, or damage within five
days of receipt of the invoice, the customer shall be deemed to accept the invoice and shall pay
that invoice according to the terms and conditions contained in this document.
17. CONFIDENTIAL INFORMATION
a) Each party agrees to always keep the other party’s confidential material confidential and not to
use the confidential material for any purpose other than for the purpose for which it was supplied
or copy or reproduce any of the confidential material in any way except whether disclosure is
necessary to enable goods or services to be used under lease or where the party that owns the
confidential material has consented to disclosure.
b) On request each party will ensure that any confidential material (including any copies) that it
possesses or controls and that belongs to the other party is returned to that other party.
c) Confidential material means:
i) All information and other material relating to the Company business, employees, goods,
or services which we make available or have previously made available to you; or
ii) Any report or material which we produce as a direct or indirect result of any work that we
carry out for you and anything that you derive from this information and material but
excluding everything which is generally available to the public or you or a third party have
independently developed or acquired confidential material.
18. RESOLVING DISPUTES
a) The Company and the customer will use all reasonable endeavours to resolve any dispute
between them. If they cannot resolve their dispute between them, they will:
i) Refer the dispute to mediation which will be conducted in accordance with the Resolution
Institute New Zealand Standard Mediation Agreement; and
ii) If mediation is unsuccessful, the matter of dispute shall be referred to a single arbitrator in
accordance with the provisions contained in the Arbitration Act 1996 and any
amendments.
b) Nothing in this clause will preclude either party from taking immediate steps to seek urgent
equitable relief before an appropriate Court.
19. INTELLECTUAL PROPERTY
a) The customer acknowledges that the Company is the sole owner of all intellectual property
(including business know how, ideas, methodologies, routines, systems and processes relating to
or arising, directly or indirectly, out of the goods and services that the Company supplies to the
customer or developed or contributed to by the Company in relation to any information, fault,
repair or documentation that is supplied to the customer or as a result of the Company performing
services or any other work for the customer.
b) The customer agrees not to use any trademarks or other intellectual property rights which are
legally the Company except as authorised by the Company.
20. REVIEW OF TERMS
a) The Company reserves the right to review any of these terms at any time. Any change will take
effect on the next transaction following the date on which the Company notified the customer of
such change.