Bench Doctors – Terms & Conditions of TradE

1.          Definitions

1.1 “Contractor” means Bench DRS Ltd T/A Bench Doctors, its successors and assigns or any person acting on behalf of and with the authority of Bench DRS Ltd T/A Bench Doctors.

1.2 “Client” means the person/s or any person acting on behalf of and with the authority of the Client requesting the Contractor to provide the Services as specified in any proposal, quotation, order, invoice or other documentation, and:

(a) if there is more than one Client, is a reference to each Client jointly and severally; and

(b) if the Client is a part of a Trust, shall be bound in their capacity as a trustee; and

(c) includes the Client’s executors, administrators, successors and permitted assigns.

1.3“Incidental Items” means any goods, documents, designs, drawings or materials supplied, consumed, created or deposited incidentally by the Contractor in the course of it conducting, or supplying to the Client, any Services.

1.4 “Services” means all Services supplied by the Contractor to the Client at the Client’s request from time to time.

1.5 “Price” means the price payable (plus any Goods and Services Tax (“GST”) where applicable) for the Services as agreed between the Contractor and the Client in accordance with clause 5 of this contract.

2.          Acceptance

2.1 The Client is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Client places an order for, or accepts Services provided by the Contractor.

2.2 These terms and conditions may only be amended with the consent of both parties in writing and shall prevail to the extent of any inconsistency with any other document or contract between the Client and the Contractor.

2.3 Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 22 of the Electronic Transactions Act 2002 or any other applicable provisions of that Act or any Regulations referred to in that Act.

3.          Errors and Omissions

3.1 The Client acknowledges and accepts that the Contractor shall, without prejudice, accept no liability in respect of any alleged or actual error(s) and/or omission(s):

(a) resulting from an inadvertent mistake made by the Contractor in the formation and/or administration of this contract; and/or

(b) contained in/omitted from any literature (hard copy and/or electronic) supplied by the Contractor in respect of the Services.

3.2 In the event such an error and/or omission occurs in accordance with clause 3.1, and is not attributable to the negligence and/or wilful misconduct of the Contractor; the Client shall not be entitled to treat this contract as repudiated nor render it invalid. 

4.          Change in Control

4.1 The Client shall give the Contractor not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client and/or any other change in the Client’s details (including but not limited to, changes in the Client’s name, address, contact phone or fax number/s, or business practice). The Client shall be liable for any loss incurred by the Contractor as a result of the Client’s failure to comply with this clause.

5.          Price and Payment

5.1 At the Contractor’s sole discretion the Price shall be either:

(a) as indicated on any invoice provided by the Contractor to the Client; or

(b) the Contractor’s quoted price (subject to clause 5.2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.

5.2       The Contractor reserves the right to change the Price if a variation to the Contractor’s quotation is requested. Variations will be charged for on the basis of the Contractor’s quotation, and will be detailed in writing, and shown as variations on the Contractor’s invoice. The Client shall be required to respond to any variation submitted by the Contractor within ten (10) working days. Failure to do so will entitle the Contractor to add the cost of the variation to the Price. Payment for all variations must be made in full at the time of their completion.

5.3       At the Contractor’s sole discretion a non-refundable deposit of up to fifty percent (50%) of the Price may be required. 

5.4       Time for payment for the Services being of the essence, the Price will be payable by the Client on the date/s determined by the Contractor, which may be:

(a) on delivery of the Services; 

(b) payment for approved Clients shall be due twenty (20) days following the end of the month in which a statement is posted to the Client’s address or address for notices;

(c)  the date specified on any invoice or other form as being the date for payment; or

(d) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Client by the Contractor. 

5.5       Payment may be made by cash, cheque, bank cheque, electronic/on-line banking, or by any other method as agreed to between the Client and the Contractor.

5.6       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 Contractor nor to withhold payment of any invoice because part of that invoice is in dispute.

5.7       Unless otherwise stated the Price does not include GST. In addition to the Price, the Client must pay to the Contractor an amount equal to any GST the Contractor must pay for any supply by the Contractor under this or any other contract for providing the Contractor’s Services. The Client must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Client pays the Price. In addition, the Client must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.

6.          Delivery of Services

6.1 At the Contractor’s sole discretion delivery of the Services shall take place when the Services are supplied to the Client at the Client’s nominated address.

6.2 Delivery of the Services to a third party nominated by the Client is deemed to be delivery to the Client for the purposes of this contract.

6.3 Any time specified by the Contractor for delivery of the Services is an estimate only and the Contractor will not be liable for any loss or damage incurred by the Client as a result of delivery being late. However both parties agree that they shall make every endeavour to enable the Services to be supplied at the time and place as was arranged between both parties. In the event that the Contractor is unable to supply the Services as agreed solely due to any action or inaction of the Client then the Contractor shall be entitled to charge a reasonable fee for re-supplying the Services at a later time and date.

7.          Risk

7.1 Irrespective of whether the Contractor retains ownership of any Incidental Items all risk for such items shall pass to the Client as soon as such items are delivered to the Client and shall remain with the Client until such time as the Contractor may repossess the Incidental Items. The Client must insure all Incidental Items on or before delivery.

7.2 The Client accepts and acknowledges that any faults with underlying surfaces or structures may affect the finish of the completed Services. The Client further accepts that where the Contractor is requested to perform remedial work on damaged structures, evidence of repairs may be apparent after the completion of the Services.

7.3 The Client acknowledges that the Contractor may not be able to ascertain the depth of, or if a void or cavity is present behind a crack without closer inspection. Any additional costs incurred by the Contractor for carrying out such investigation prior to repairing such a defect shall be invoiced as an extra. The Client also accepts that repair methods may alter as a result of any such investigation.

7.4 The Contractor gives no guarantee (expressed or implied) as to the length of time the curing process will take due to factors or conditions outside the Contractor’s control (including, but not limited to, the surfaces and the existing condition of the defect, atmospheric conditions including humidity and temperature, the nature of the repair).

8.          Access

8.1 The Client shall ensure that the Contractor has clear and free access to the worksite at all times to enable them to undertake the Services. The Contractor shall not be liable for any loss or damage to the site (including, without limitation, damage to pathways, driveways and concreted or paved or grassed areas) unless due to the negligence of the Contractor.

9.          Compliance with Laws

9.1 The Client and the Contractor shall comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities that may be applicable to the Services.

9.2 The Client agrees that the site will comply with any workplace health and safety laws relating to site and any other relevant safety standards or legislation.

10.       Title

10.1 The Contractor and the Client agree that where it is intended that the ownership of Incidental Items is to pass to the Client that such ownership shall not pass until:

(a) the Client has paid the Contractor all amounts owing for the Services; and

(b) the Client has met all other obligations due by the Client to the Contractor in respect of all contracts between the Contractor and the Client.

10.2    Receipt by the Contractor 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 Contractor’s ownership or rights in respect of the Incidental Items shall continue.

10.3    It is further agreed that:

(a) the Client is only a bailee of the Incidental Items and must return the Incidental Items to the Contractor immediately upon request by the Contractor; 

(b) the Client holds the benefit of the Client’s insurance of the Incidental Items on trust for the Contractor and must pay to the Contractor the proceeds of any insurance in the event of the Incidental Items being lost, damaged or destroyed;

(c)  the Client must not sell, dispose, or otherwise part with possession of the Incidental Items. If the Client sells, disposes or parts with possession of the Incidental Items then the Client must hold the proceeds of sale of the Incidental Items on trust for the Contractor and must pay or deliver the proceeds to the Contractor on demand.

(d) the Client should not convert or process the Incidental Items or intermix them with other goods, but if the Client does so then the Client holds the resulting product on trust for the benefit of the Contractor and must dispose of or return the resulting product to the Contractor as the Contractor so directs.

(e) the Client shall not charge or grant an encumbrance over the Incidental Items nor grant nor otherwise give away any interest in the Incidental Items while they remain the property of the Contractor;

(f)   the Client irrevocably authorises the Contractor to enter any premises where the Contractor believes the Incidental Items are kept and recover possession of the Incidental Items.

11.       Personal Property Securities Act 1999 (“PPSA”)

11.1 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 Incidental Items and/or collateral (account) – being a monetary obligation of the Client to the Contractor for Services – that have previously been supplied and that will be supplied in the future by the Contractor to the Client.

11.2 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 Contractor 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 Contractor for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register or releasing any Incidental Items charged thereby;

(c)  not register, or permit to be registered, a financing statement or a financing change statement in relation to the Incidental Items and/or collateral (account) in favour of a third party without the prior written consent of the Contractor.

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

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

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

11.6    The Client shall unconditionally ratify any actions taken by the Contractor under clauses 11.1 to 11.5.

12.       Security and Charge

12.1 In consideration of the Contractor agreeing to supply Services, the Client charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Client either now or in the future, to secure the performance by the Client of its obligations under these terms and conditions (including, but not limited to, the payment of any money). 

12.2 The Client indemnifies the Contractor from and against all the Contractor’s costs and disbursements including legal costs of a solicitor and own client basis incurred in exercising the Contractor’s rights under this clause.

12.3 The Client irrevocably appoints the Contractor and each director of the Contractor as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 12 including, but not limited to, signing any document on the Client’s behalf.

13.       Defects

13.1 The Client shall inspect the Services on delivery and shall within seven (7) days of delivery notify the Contractor of any alleged defect, shortage in quantity, errors, omissions or failure to comply with the description or quote. The Client shall afford the Contractor an opportunity to inspect the Services within a reasonable time following delivery if the Client believes the Services are defective in any way. If the Client shall fail to comply with these provisions, the Services shall be conclusively presumed to be in accordance with the terms and conditions and free from any defect or damage.

13.2 For defective Services, which the Contractor has agreed in writing that the Client is entitled to reject, the Contractor’s liability is limited to either (at the Contractor’s discretion) replacing the Services or rectifying the Services provided that the Client has complied with the provisions of clause 13.1.

14.       Warranty

14.1 Subject to the conditions of warranty set out in clause 14.1 the Contractor warrants that if any defect in any workmanship of the Contractor becomes apparent and is reported to the Contractor within five (5) years of the date of delivery (time being of the essence) then the Contractor will either (at the Contractor’s sole discretion) replace or remedy the workmanship.

14.2 The conditions applicable to the warranty given by clause 14.1 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 items; or

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

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

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

(c)  in respect of all claims the Contractor 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.

15.       Consumer Guarantees Act 1993

15.1 If the Client is acquiring 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 Services by the Contractor to the Client.

16.       Intellectual Property

16.1 The Client agrees that the Contractor may (at no cost) use for the purposes of marketing or entry into any competition, any images of Services provided for the Client.

17.       Default and Consequences of Default

17.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at the Contractor’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.

17.2 If the Client owes the Contractor any money the Client shall indemnify the Contractor from and against all costs and disbursements incurred by the Contractor in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, the Contractor’s collection agency costs, and bank dishonour fees).

17.3 Further to any other rights or remedies the Contractor may have under this contract, if a Client has made payment to the Contractor, and the transaction is subsequently reversed, the Client shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by the Contractor under this clause 17, where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Client’s obligations under this contract.

17.4 Without prejudice to the Contractor’s other remedies at law the Contractor shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to the Contractor shall, whether or not due for payment, become immediately payable if:

(a) any money payable to the Contractor becomes overdue, or in the Contractor’s opinion the Client will be unable to make a payment when

it falls due; 

(b) the Client has exceeded any applicable credit limit provided by the Contractor;

(c)  the Client becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or

(d) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.

18.       Cancellation

18.1 Without prejudice to any other remedies the Contractor may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions the Contractor may suspend or terminate the supply of Services to the Client. The Contractor will not be liable to the Client for any loss or damage the Client suffers because the Contractor has exercised its rights under this clause.

18.2 The Contractor may cancel any contract to which these terms and conditions apply or cancel delivery of Services at any time before the Services are commenced by giving written notice to the Client. On giving such notice the Contractor shall repay to the Client any money paid by the Client for the Services. The Contractor shall not be liable for any loss or damage whatsoever arising from such cancellation.

18.3 In the event that the Client cancels delivery of the Services the Client shall be liable for any and all loss incurred (whether direct or indirect) by the Contractor as a direct result of the cancellation (including, but not limited to, any loss of profits).

19.       Privacy Act 1993

19.1 The Client authorises the Contractor or the Contractor’s agent to:

(a) access, collect, retain and use any information about the Client;

(i)   (including any overdue fines balance information held by the Ministry of Justice) for the purpose of assessing the Client’s creditworthiness; or 

(ii)  for the purpose of marketing products and services to the Client.

(b) disclose information about the Client, whether collected by the Contractor from the Client directly or obtained by the Contractor from any other source, to any other credit provider or any credit reporting agency for the purposes of providing or obtaining a credit reference, debt collection or notifying a default by the Client.

19.2    Where the Client is an individual the authorities under clause 19.1 are authorities or consents for the purposes of the Privacy Act 1993.

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

20.       Service of Notices

20.1 Any written notice given under this contract shall be deemed to have been given and received:

(a) by handing the notice to the other party, in person;

(b) by leaving it at the address of the other party as stated in this contract;

(c)  by sending it by registered post to the address of the other party as stated in this contract;

(d) if sent by facsimile transmission to the fax number of the other party as stated in this contract (if any), on receipt of confirmation of the transmission;

(e) if sent by email to the other party’s last known email address.

20.2 Any notice that is posted shall be deemed to have been served, unless the contrary is shown, at the time when by the ordinary course of post, the notice would have been delivered.

21.       Trusts

21.1 If the Client at any time upon or subsequent to entering in to the contract is acting in the capacity of trustee of any trust (“Trust”) then whether or not the Contractor may have notice of the Trust, the Client covenants with the Contractor as follows:

(a) the contract extends to all rights of indemnity which the Client now or subsequently may have against the Trust and the trust fund;

(b) the Client has full and complete power and authority under the Trust to enter into the contract and the provisions of the Trust do not purport to exclude or take away the right of indemnity of the Client against the Trust or the trust fund.  The Client will not release the right of indemnity or commit any breach of trust or be a party to any other action which might prejudice that right of indemnity.

(c)  The Client will not without consent in writing of the Contractor (the Contractor will not unreasonably withhold consent), cause, permit, or suffer to happen any of the following events;

(i)           the removal, replacement or retirement of the Client as trustee of the Trust;

(ii)          any alteration to or variation of the terms of the Trust; (iii) any advancement or distribution of capital of the Trust; or (iv) any resettlement of the trust property.

22.       General

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

22.2 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 Auckland Courts in New Zealand.

22.3 The Contractor shall be under no liability whatsoever to the Client for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by the Contractor of these terms and conditions (alternatively the Contractor’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Services).

22.4 The Contractor may licence and/or assign all or any part of its rights and/or obligations under this contract without the Client’s consent.

22.5 The Client cannot licence or assign without the written approval of the Contractor.

22.6 The Contractor may elect to subcontract out any part of the Services but shall not be relieved from any liability or obligation under this contract by so doing. Furthermore, the Client agrees and understands that they have no authority to give any instruction to any of the Contractor’s sub-contractors without the authority of the Contractor.

22.7 The Client agrees that the Contractor may amend these terms and conditions by notifying the Client in writing. These changes shall be deemed to take effect from the date on which the Client accepts such changes, or otherwise at such time as the Client makes a further request for the Contractor to provide Goods to the Client. 

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

22.9 Both parties warrant that they have the power to enter into this contract and have obtained all necessary authorisations to allow them to do so, they are not insolvent and that this contract creates binding and valid legal obligations on them.