| 1. |
Definitions |
| 1.1 |
“PTS” means Professional Traffic Services Limited its successors and assigns or any person acting on behalf of and with the authority of Professional Traffic Services Limited. |
| 1.2 |
“Client” means the person/s requesting PTS to provide the Services as specified in any invoice, document or order, and if there is more than one person requesting the Services is a reference to each person jointly and severally. |
| 1.3 |
“Incidental Items” means any goods, documents, designs, drawings or materials supplied, consumed, created or deposited incidentally by PTS in the course of it conducting, or supplying to the Client, any Services. |
| 1.4 |
“Services” means all Services supplied by PTS to the Client at the Client’s request from time to time. |
| 1.5 |
“Equipment” means all Equipment including any accessories supplied on hire by PTS to the Client (and where the context so permits shall include any supply of Services). The Equipment shall be as described on the invoices, quotation, authority to hire, or any other work authorisation form provided by PTS to the Client. |
| 1.6 |
“Price” means the price payable for the Services as agreed between PTS and the Client in accordance with clause 4 of this contract.
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| 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/Equipment provided by PTS. |
| 2.2 |
These terms and conditions may only be amended with PTS’s consent in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the Client and PTS.
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| 3. |
Change in Control |
| 3.1 |
The Client shall give PTS 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 PTS as a result of the Client’s failure to comply with this clause.
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| 4. |
Price and Payment |
| 4.1 |
At PTS’s sole discretion the Price shall be either: |
| (a) |
as indicated on any invoice provided by PTS to the Client; or |
| (b) |
the Price as at the date of delivery of the Services/Equipment according to PTS’s current price list; or |
| (c) |
PTS’s quoted price (subject to clause 4.2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days. |
| 4.2 |
PTS reserves the right to change the Price if a variation to PTS’s quotation is requested. Any variation from the plan of scheduled Services or specifications of the Services (including, but not limited to, any variation as a result of increases to PTS in the cost of taxes, levies, materials and labour) will be charged for on the basis of PTS’s quotation and will be shown as variations on the invoice. |
| 4.3 |
At PTS’s sole discretion a deposit may be required. |
| 4.4 |
Time for payment for the Services/Equipment being of the essence, the Price will be payable by the Client on the date/s determined by PTS, which may be: |
| (a) |
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; |
| (b) |
the date specified on any invoice or other form as being the date for payment; or |
| (c) |
failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Client by PTS. |
| 4.5 |
Payment may be made by cash, cheque, electronic/on-line banking, credit card (plus a surcharge of up to two and a half percent (2.5%) of the Price), or by any other method as agreed to between the Client and PTS. |
| 4.6 |
Unless otherwise stated the Price does not include GST. In addition to the Price the Client must pay to PTS an amount equal to any GST PTS must pay for any supply by PTS under this or any other agreement for providing PTS’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.
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| 5. |
Delivery of Services/Equipment |
| 5.1 |
At PTS’s sole discretion delivery of the Services/Equipment shall take place when: |
| (a) |
the Services/Equipment are supplied to the Client at PTS’s address; or |
| (b) |
the Services/Equipment are supplied to the Client at the Client’s nominated address. |
| 5.2 |
Delivery of the Services/Equipment to a third party nominated by the Client is deemed to be delivery to the Client for the purposes of this agreement. |
| 5.3 |
PTS may deliver the Services/Equipment by separate instalments. Each separate instalment shall be invoiced and paid for in accordance with the provisions in these terms and conditions. |
| 5.4 |
Any time specified by PTS for delivery of the Services/Equipment is an estimate only and PTS 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 PTS is unable to supply the Services/Equipment as agreed solely due to any action or inaction of the Client then PTS shall be entitled to charge a reasonable fee for re-supplying the Services at a later time and date.
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| 6. |
Risk |
| 6.1 |
Irrespective of whether PTS 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 PTS may repossess the Incidental Items. The Client must insure all Incidental Items on or before delivery. |
| 6.2 |
PTS reserves its right to seek compensation or damages for any damage, destruction or loss suffered in relation to the Incidental Items as a result of the Client’s failure to insure in accordance with clause 6.1.
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| 7. |
Title |
| 7.1 |
PTS 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 PTS all amounts owing for the Services; and |
| (b) |
the Client has met all other obligations due by the Client to PTS in respect of all contracts between PTS and the Client. |
| 7.2 |
Receipt by PTS 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 PTS’s ownership or rights in respect of the Incidental Items shall continue. |
| 7.3 |
It is further agreed that: |
| (a) |
the Client is only a bailee of the Incidental Items and must return the Incidental Items to PTS immediately upon request by PTS; |
| (b) |
the Client holds the benefit of the Client’s insurance of the Incidental Items on trust for PTS and must pay to PTS 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 PTS and must pay or deliver the proceeds to PTS 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 PTS and must dispose of or return the resulting product to PTS as PTS 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 PTS; |
| (f) |
the Client irrevocably authorises PTS to enter any premises where PTS believes the Incidental Items are kept and recover possession of the Incidental Items.
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| 8. |
Personal Property Securities Act 1999 (“PPSA”) |
| 8.1 |
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/Equipment previously supplied by PTS to the Client (if any) and all Incidental Items/Equipment that will be supplied in the future by PTS to the Client. |
| 8.2 |
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 PTS may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register; |
| (b) |
indemnify, and upon demand reimburse, PTS for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register or releasing any Incidental Items/Equipment charged thereby; |
| (c) |
not register a financing change statement or a change demand without the prior written consent of PTS. |
| 8.3 |
PTS and the Client agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms and conditions. |
| 8.4 |
The Client waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA. |
| 8.5 |
Unless otherwise agreed to in writing by PTS, the Client waives its right to receive a verification statement in accordance with section 148 of the PPSA. |
| 8.6 |
The Client shall unconditionally ratify any actions taken by PTS under clauses 8.1 to 8.5.
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| 9. |
Security and Charge |
| 9.1 |
In consideration of PTS 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). |
| 9.2 |
The Client indemnifies PTS from and against all PTS’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising PTS’s rights under this clause. |
| 9.3 |
The Client irrevocably appoints PTS and each director of PTS as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 9 including, but not limited to, signing any document on the Client’s behalf.
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| 10. |
Client’s Disclaimer |
| 10.1 |
The Client hereby disclaims any right to rescind, or cancel any contract with PTS or to sue for damages or to claim restitution arising out of any inadvertent misrepresentation made to the Client by PTS and the Client acknowledges that the Services are bought relying solely upon the Client’s skill and judgment.
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| 11. |
Error and Omissions |
| 11.1 |
The Client shall inspect the Services/Equipment on delivery and shall within seven (7) days of delivery notify PTS of any alleged defect, shortage in quantity, errors, omissions or failure to comply with the description or quote. The Client shall afford PTS an opportunity to inspect the Services/Equipment within a reasonable time following delivery if the Client believes the Services/Equipment are defective in any way. If the Client shall fail to comply with these provisions, the Services/Equipment shall be conclusively presumed to be in accordance with the terms and conditions and free from any defect or damage. |
| 11.2 |
For defective Services/Equipment, which PTS has agreed in writing that the Client is entitled to reject, PTS’s liability is limited to either (at PTS’s discretion) replacing the Services/Equipment or rectifying the Services/Equipment provided that the Client has complied with the provisions of clause 11.1.
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| 12. |
Consumer Guarantees Act 1993 |
| 12.1 |
If the Client is acquiring Services/Equipment 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/Equipment by PTS to the Client.
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| 13. |
Intellectual Property |
| 13.1 |
Where PTS has designed, drawn or developed Incidental Items for the Client, then the copyright in any Incidental Items shall remain the property of PTS. |
| 13.2 |
The Client warrants that all designs, specifications or instructions given to PTS will not cause PTS to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify PTS against any action taken by a third party against PTS in respect of any such infringement. |
| 13.3 |
The Client agrees that PTS may (at no cost) use for the purposes of marketing or entry into any competition, any Incidental Items which PTS has created for the Client.
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| 14. |
Default and Consequences of Default |
| 14.1 |
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 PTS’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment. |
| 14.2 |
If the Client owes PTS any money the Client shall indemnify PTS from and against all costs and disbursements incurred by PTS in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, PTS’s collection agency costs, and bank dishonour fees). |
| 14.3 |
Without prejudice to any other remedies PTS may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions PTS may suspend or terminate the supply of Services/Equipment to the Client. PTS will not be liable to the Client for any loss or damage the Client suffers because PTS has exercised its rights under this clause. |
| 14.4 |
Without prejudice to PTS’s other remedies at law PTS shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to PTS shall, whether or not due for payment, become immediately payable if: |
| (a) |
any money payable to PTS becomes overdue, or in PTS’s opinion the Client will be unable to make a payment when it falls due; |
| (b) |
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 |
| (c) |
a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.
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| 15. |
Cancellation |
| 15.1 |
PTS may cancel any contract to which these terms and conditions apply or cancel delivery of Services/Equipment at any time before the Services/Equipment are commenced by giving written notice to the Client. On giving such notice PTS shall repay to the Client any money paid by the Client for the Services/Equipment. PTS shall not be liable for any loss or damage whatsoever arising from such cancellation. |
| 15.2 |
In the event that the Client cancels delivery of the Services/Equipment the Client shall be liable for any and all loss incurred (whether direct or indirect) by PTS as a direct result of the cancellation (including, but not limited to, any loss of profits).
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| 16. |
Privacy Act 1993 |
| 16.1 |
The Client authorises PTS or PTS’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 PTS from the Client directly or obtained by PTS 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. |
| 16.2 |
Where the Client is an individual the authorities under clause 16.1 are authorities or consents for the purposes of the Privacy Act 1993. |
| 16.3 |
The Client shall have the right to request PTS for a copy of the information about the Client retained by PTS and the right to request PTS to correct any incorrect information about the Client held by PTS.
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| 17 |
Equipment Hire |
| 17.1 |
Equipment shall at all times remain the property of PTS and is returnable on demand by PTS. In the event that Equipment is not returned to PTS in the condition in which it was delivered PTS retains the right to charge the Client the full cost of repairing the Equipment. In the event that Equipment is not returned at all PTS shall have right to charge the Client the full cost of replacing the Equipment. |
| 17.2 |
The Client shall; |
| (a) |
keep the Equipment in their own possession and control and shall not assign the benefit of the Equipment nor be entitled to a lien over the Equipment. |
| (b) |
not alter or make any additions to the Equipment including but without limitation altering, make any additions to, defacing or erasing any identifying mark, plate or number on or in the Equipment or in any other manner interfere with the Equipment. |
| (c) |
keep the Equipment, complete with all parts and accessories, clean and in good order as delivered, and shall comply with any maintenance schedule as advised by PTS to the Client. |
| 17.3 |
The Client accepts full responsibility for the safekeeping of the Equipment and the Client agrees to insure, or self insure, PTS’s interest in the Equipment and agrees to indemnify PTS against physical loss or damage including, but not limited to, the perils of accident, fire, theft and burglary and all other usual risks and will effect adequate Public Liability Insurance covering any loss, damage or injury to property or persons arising out of the use of the Equipment. Further the Client will not use the Equipment nor permit it to be used in such a manner as would permit an insurer to decline any claim.
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| 18. |
General |
| 18.1 |
The failure by PTS to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect PTS’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. |
| 18.2 |
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 courts of Hamilton. |
| 18.3 |
PTS 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 PTS of these terms and conditions (alternatively PTS’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Services/Equipment). |
| 18.4 |
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 PTS nor to withhold payment of any invoice because part of that invoice is in dispute. |
| 18.5 |
PTS may license or sub-contract all or any part of its rights and obligations without the Client’s consent. |
| 18.6 |
The Client agrees that PTS may amend these terms and conditions at any time. If PTS makes a change to these terms and conditions, then that change will take effect from the date on which PTS notifies the Client of such change. The Client will be taken to have accepted such changes if the Client makes a further request for PTS to provide Services/Equipment to the Client. |
| 18.7 |
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. |
| 18.8 |
The Client warrants that it has the power to enter into this agreement and has obtained all necessary authorisations to allow it to do so, it is not insolvent and that this agreement creates binding and valid legal obligations on it. |
