Terms of Trade
1.1 “T KELLY PLUMBING” shall mean TK PLUMBING LIMITED trading as T K PLUMBING, or any agents or employees thereof.
1.2 “Customer” shall mean the Customer, any person acting on behalf of and with the authority of the Customer, or any person contracting products from TK PLUMBING.
1.3 “Products” shall mean all products, services, materials and advice provided by TK PLUMBING to the Customer including without limitation the manufacture, organisation, supply and installation of wardrobe and storage shelving, sliding doors and all charges for labour and work, hire charges, insurance charges, or any fee or charge associated with the supply of products by TK PLUMBING to the Customer.
1.4 “Price” shall mean the cost of the products as agreed between TK PLUMBING and the Customer subject to clause 4 of this contract.
2.1 Any instructions received by TK PLUMBING from the Customer for the supply of products shall constitute a binding contract and acceptance of the terms and conditions contained herein.
2.2 Where more than one Customer has entered into this agreement the Customers shall be jointly and severally liable for all payments of the Price.
2.3 Upon acceptance of these Terms and Conditions by the Customer the terms and conditions are binding and can only be amended with the written consent of TK PLUMBING.
3.1 Where no price is stated in writing or agreed to orally the products shall be deemed to be sold at the current amount as such products are sold by TK PLUMBING at the time of the contract.
3.2 The price may be increased by the amount of any reasonable increase in the cost of supply of the products that is beyond the control of TK PLUMBING between the date of the contract and delivery of the products.
3.3 A deposit of 50% may be required prior to delivery of any Products to the Customer.
4.1 Payment for products shall be made in full on the completion of the invoice for approved Customers (“the due date”).
4.2 Interest may be charged on any amount owing after the due date at the rate of 2.5% per month or part month.
4.3 Any expenses, disbursements and legal costs incurred by TK PLUMBING in the enforcement of any rights contained in this contract shall be paid by the Customer, including any reasonable solicitor’s fees or debt collection agency fees.
4.4 Receipt of a cheque, bill of exchange, or other negotiable instrument shall not constitute payment until such negotiable instrument is paid in full.
4.5 Without prejudice to TK PLUMBING, TK PLUMBING shall be entitled to cancel all or any part of any supply agreement with the Customer which remains unfilled and all amounts owing to TK PLUMBING shall become immediately payable in the event that:
(a) any money payable to TK PLUMBING becomes overdue of payment, or in TK PLUMBING’s opinion the Customer will be unable to meet its payment obligations as they become due; or
(b) the Customer 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
(c) a receiver, liquidator, manager (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer.
5.1 Where a quotation is given by TK PLUMBING for products:
5.1.1 The quotation shall be valid for thirty (30) days from the date of issue; and
5.1.2 The quotation shall be exclusive of Goods and Services Tax unless specifically stated to the contrary.
6.1 The products remain at TK PLUMBING’s risk until the products are installed or in the event of delivery, when the products leave TK PLUMBING’s premises.
7.1 The Customer authorises TK PLUMBING to contract either as principal or agent for the provision of products that are the matter of this contract.
7.2 Where TK PLUMBING enters into a contract of the type referred to in clause 8.1 it shall be read with and form part of this agreement and the Customer agrees to pay any amounts due under that contract.
8.1 If the products are ascertained and in a deliverable state, title in the products passes to the Customer when the Customer has made payment for all products supplied by TK PLUMBING.
8.2 Where the Customer has not paid for any products in its possession, property in such products shall remain with TK PLUMBING and:
8.2.1 The products shall be held by the Customer as bailee; and
8.2.2 If the products are attached, fixed, or incorporated into any property of the Customer, by way of any manufacturing or assembly process by the Customer or any third party, title in the products shall remain with TK PLUMBING until the Customer has made payment for all products, and where those products are mixed with other property so as to be part of or a constituent of any new products, title to these new products shall deemed to be assigned to TK PLUMBING as security for the full satisfaction by the Customer of the full amount owing between TK PLUMBING and Customer.
8.3 The Customer gives irrevocable authority to TK PLUMBING to enter any premises occupied by the Customer, at any reasonable time, to remove any products not paid for in full by the Customer. TK PLUMBING shall not be liable for costs, damages or expenses or any other losses incurred by the Customer or any third party as a result of this action, nor liable in contract or in tort or otherwise in any way whatsoever.
9. DISPUTES OR DEFECTS
9.1 The Customer shall inspect the Products provided by TK PLUMBING and shall within fourteen (14) days of installation (time being of the essence) notify TK PLUMBING of any alleged defect, damage or failure to comply with the description or quote. The Customer shall give TK PLUMBING an opportunity to inspect the Products supplied within a reasonable time if the Customer believes the Products provided are defective in any way. If the Customer fails to comply with these provisions the Products provided shall be presumed to be free from any defect. For defective, damaged or incorrectly supplied Products, TK PLUMBING’s liability is limited to the replacement of the defective or incorrectly supplied Products.
10.1 The Consumer Guarantees Act 1993, the Commerce Act 1986, the Fair Trading Act 1986 and other statutes may imply warranties or conditions or impose obligations upon TK PLUMBING which cannot by law (or which can only to a limited extent by law) be excluded or modified. In respect of any such implied warranties, conditions or terms imposed on TK PLUMBING, TK PLUMBING’s liability shall, where it is allowed, be excluded or if not able to be excluded only apply to the minimum extent required by the relevant statute.
10.2 Except as otherwise provided by clause 11.1 TK PLUMBING shall not be liable for:
10.2.1 Any loss or damage of any kind whatsoever including consequential loss whether suffered or incurred by the Customer or another person and whether in contract, or tort, or otherwise and whether such loss or damage arises directly or indirectly from products provided by TK PLUMBING to the Customer; and
10.2.3 The Customer shall indemnify TK PLUMBING against all claims and loss of any kind whatsoever however caused or arising and without limiting the generality of the foregoing of this clause whether caused or arising as a result of the negligence of TK PLUMBING or otherwise, brought by any person in connection with any matter, act, omission, or error by TK PLUMBING its agents or employees in connection with the products.
11. CONSUMER GUARANTEES ACT
11.1 The guarantees contained in the Consumer Guarantees Act 1993 are excluded where the Customer acquires products from TK PLUMBING for the purposes of a business in terms of section 2 and 43 of that Act.
12.1 TK PLUMBING shall not be liable for delay or failure to perform its obligations if the cause of the delay or failure is beyond its control.
12.2 Failure by TK PLUMBING to enforce any of the terms and conditions contained in this contract shall not be deemed to be a waiver of any of the rights or obligations TK PLUMBING has under this contract.
12.3 In the event of any breach of this contract by TK PLUMBING the remedies of the Customer shall be limited to the damages, which shall not exceed the Price.
12.4 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 TK PLUMBING or the Customer.
12.5 TK PLUMBING may license or sub-contract all or any part of its rights and obligations without the Customer’s consent.
12.6 TK PLUMBING 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 TK PLUMBING notifies the Customer of such change.