Terms

1. INTERPRETATION

“Business Day” means any day, other than a Saturday, Sunday or public holiday in Auckland, on which banks are generally open for business in Auckland.

“Consumer Law” means the Consumer Guarantees Act 1993 as amended from time to time.

“Companies Act” means the Companies Act 1993 as amended from time to time.

“Customer” means any person purchasing Goods or Services from GutterCare, and any other person acting on behalf of or with the authority of that person.

“Goods” means goods, products and inventory supplied by or on behalf of GutterCare to a Customer from time to time.

“GST” has the meaning given in the Goods and Services Tax Act 1985 as amended from time to time.

2. INSOLVENCY EVENT

1. an “act of bankruptcy” under the Insolvency Act 2006;
2. the appointment of a receiver, receiver and manager, administrator or liquidator
3. a resolution is passed to wind up or dissolve a Customer or it is deregistered;
4. a person enters into possession of all or any part of the assets of a Customer;
5. a Customer is or states that it is unable to pay its debts when they fall due or enter into a compromise with creditors;
6. anything analogous or having a substantially similar effect to any of the events specified above;

“Intellectual Property Rights” includes all rights in relation to present and future copyright, confidential information, patents, inventions, registered and unregistered trade marks, registered or unregistered designs, ideas, concepts, know-how or techniques, software and documentation developed or utilised by GutterCare in relation to the Goods and includes any right to licence and sub-licence any of the above.

“Order” means an order placed by a Customer (including by phone or in writing) requesting GutterCare to supply Goods or services.

“GutterCare” means GutterCare Property Management Services Limited, or any agents or employees thereof.

“PPSA” means the Personal Property Securities Act 1999 as amended from time to time.

“Price” means the moneys payable by a Customer to GutterCare in relation to the supply of Goods or Services.

“PMSI” has the meaning given to it in the PPSA.

“Security Interest” includes any security interest under the PPSA.

“Services” means services supplied by GutterCare to a Customer from time to time.

3. GENERAL

a. All Orders placed by a Customer are subject to these Terms and Conditions. No additional term or condition contained in any Order will be effective unless expressly pre-agreed in writing by a director of GutterCare.

b. An Order may be refused by GutterCare. An order will be deemed accepted by GutterCare on the earlier of delivery of the Order or the time GutterCare notifies a Customer that it has accepted the Order.

c. If Goods or Services are supplied and acquired by Customer in trade, the parties agree, to the maximum extent possible, that the Consumer Law does not apply.

4. PRICE

a. GutterCare may advise a Customer of the Price from time to time by providing a price list, quote or estimate for the Goods and Services. If an estimate is provided, or no Price is advised or agreed, the Price will be the current amount charged by GutterCare for the relevant Goods and Services.

b. Any Price quoted by GutterCare is based on the full quantities specified and does not necessarily operate pro-rata for any greater or lesser quantities.

c. The Price quoted, estimated or agreed may be increased by the amount of any reasonable increase in the cost of supply of the Goods and Services that is beyond the control of GutterCare between the date the Order is it accepted and the date of delivery of the Goods or Services.

d. Unless otherwise indicated, Prices are exclusive of GST.

e. A Customer acknowledges and agrees to pay GutterCare on demand all costs and losses incurred by GutterCare if a Customer, for any reason, does not accept the Order after the date the Order is accepted by GutterCare.

5. QUOTATION

a. Where a quotation is given by GutterCare for Goods and Services:

1. unless otherwise agreed or withdrawn by GutterCare, the quotation shall be valid for 30 days from the date of issue;
2. the quotation shall be exclusive of GST unless specifically stated to the contrary:
3. GutterCare reserves the right to alter the quotation because of circumstances beyond its control.

b. Where Goods and Services are required in addition to the quotation, the Customer agrees to pay for the additional cost of such Goods and Services.

6. MOSS, MOULD, LICHEN AND ALGAE TREATMENTS

a. This clause applies to treatments in relation to moss, mould, lichen and algae.

b. Those treatments take time to take effect. Biological growth is generally dead within hours, but remains attached to the surface and requires weathering to gently prise it away. A difference will generally be evident after a few weeks, however at least 12 months is generally required for the best results to be realised.

c. Notwithstanding anything to the contrary set out in these Terms, if no difference is visible after three months of completion of the treatment, GutterCare shall re-inspect the area and if required, carry out a patch test, at its cost. Except where covered by GutterCare’s warranties (as set out in clause 12 or otherwise in writing), further treatments shall be at the Customer’s cost.

d. Notwithstanding anything to the contrary set out in these Terms, for the treatment of steep roofs and shaded areas, GutterCare cannot guarantee that one or few treatments to the south side of any roof with a pitch greater than 40 degrees or heavily shaded areas such as in the lee of dormers or excessive tree overhang will be effective at removing all growth. Those areas may require regular and ongoing treatment every six months until the growth is gone. In accepting these Terms, the Customer acknowledges that it accepts and understands the limitations prescribed by this clause.

7. TERMS OF PAYMENT

a. A Customer agrees to pay GutterCare:

1. the Price for all Goods and Services provided by GutterCare;
2. any applicable GST or other charges, duties and taxes in respect of the Goods or Services that are invoiced by GutterCare.

b. GutterCare may require a deposit on an Order prior to commencing work. Unless demanded earlier by GutterCare, all other amounts are due and payable without set-off or deduction by the 7th day following the date of invoice by way of direct credit to GutterCare’s nominated bank account from time to time (unless otherwise specified or agreed).

c. If payment is not received according with these Terms and Conditions this will constitute a default and:

1. all money owed by a Customer to GutterCare will become immediately due and payable.
2. default interest will accrue on the daily balances of overdue accounts from the day following the due date at the Official Cash Rate on the due date plus 15%.

d. In the event of a default by the Customer under the contract, the Customer agrees to indemnify GutterCare for all costs that GutterCare may incur in connection with the default, including:

1. any legal costs (on a solicitor/client basis);
2. the costs, including their commission of any collection agency that GutterCare may choose to engage; and
3. any other costs that GutterCare may become liable for as a result of the default.

e. A Customer may not set off, deduct or withhold payment of any amount due and owing to GutterCare.

f. GutterCare may apply any payment received in any manner it sees fit.

8. RETENTION OF TITLE

a. Ownership in Goods (which for the purposes of this clause 7 includes goods of the Customer incorporating Goods and goods of the Customer in respect of which GutterCare has provided Services) supplied by GutterCare remains with GutterCare until GutterCare receives payment in full of the all sums due to GutterCare from the Customer on any account. Pending such payment the following conditions apply:

1. a Customer must designate and keep GutterCare’s Goods in such a way as to indicate that the Goods are the property of GutterCare and upon request must advise GutterCare of the location of the Goods;
2. a Customer must keep the Goods insured against loss and damage;
3. a Customer irrevocably authorises GutterCare to without liability to any person:enter any of a Customer’s properties, without notice and inspect the Goods, and if the Customer is in default, repossess and dispose of the Goods;resell the Goods at such price and upon such terms as it sees fit and the proceeds of such sale, after deduction of all expenses, shall be deducted from the amount due;
4. if a Customer sells or disposes the Goods before a Customer has paid the Price, the Customer acknowledges and agrees that:it holds the proceeds of the sale or disposal and any rights or claims against third parties arising out of such sale or disposal in a fiduciary capacity for and to the account of GutterCare until a Customer has paid all sums whatsoever due to GutterCare; anda Customer must take all steps necessary to keep such proceeds separate from other monies, to pay over such proceeds to GutterCare and to transfer to GutterCare any such rights or claims to the extent necessary to discharge in full a Customer’s indebtedness to GutterCare; and
5. a Customer has no authority to enter into any contract or condition or give any warranty or representation in relation to the Goods which may render GutterCare liable to any third party for breach of such contract or condition or for inaccuracy of such warranty or representation which may render GutterCare chargeable to any tax or duty.

b. If after 14 days from the date on which the Goods are ready for collection or despatch, delivery is delayed due to a Customer’s act, omission, breach or default, GutterCare may at its election:

1. store the Goods at its premises or elsewhere and the cost of storage, handling and insurance shall be payable by a Customer on GutterCare’s demand; or
2. terminate the Order without liability to a Customer.

9. FORCE MAJEURE

a. GutterCare will not be liable for a delay or failure to supply an Order due to any cause beyond its control such as any act or neglect of any carrier, sub-contractor, manufacturer or supplier of GutterCare, acts of God, strikes, lock-outs, bans or other industrial disturbances, fire, flood, explosion, civil riot or commotion, government interference or request, by-laws, rules or regulations or order of any competent authority.

b. If the delay continues for a period of 15 Business Days or more either party may cancel the Order without liability to the other.

10. INTELLECTUAL PROPERTY

a. As between the parties, title to, and all proprietary rights in, all Intellectual Property Rights will be vested in and remain with GutterCare.

b. All Intellectual Property Rights in respect of the Goods and all modifications to, and derivative works based upon, such items and information, are and will remain the exclusive property of GutterCare and its licensors, subject only to the express terms of these Terms and Conditions.

11. DEFAULT

a. In the event of:

1. an Insolvency Event;
2. a Customer failing to make any payment to GutterCare on the due date; or
3. a Customer not complying with an obligation under these Terms and Conditions,

GutterCare may, without prejudice to any other remedy, have the right to:

1. cease to perform any of its obligations to a Customer;
2. terminate the contract with a Customer without incurring any liability at law or in equity and without prejudice to GutterCare’s right to recover amounts owing to it by a Customer; and/or
3. sell a Customer’s ordered Goods elsewhere and recover from a Customer any difference between the quoted price and the re-sale price.

b. Termination does not affect the accrued rights and obligations of the parties, including with respect to any payments due to GutterCare or any indemnities given by a Customer.

12. WARRANTY AND LIABILITY OF SUPPLIER

a. Other than as specified in these terms and conditions, to the extent permitted by law all warranties, conditions, liabilities or representations in relation to the quality or fitness of Goods (other than any being or giving rise to non-excludable rights under any laws of New Zealand) are excluded.

b. Unless otherwise stated in writing, GutterCare provides only the following warranties in relation to the Goods and Services:

1. 3 year workmanship warranty for all full installations, and
2. 1 year workmanship warranty for all repairs.

c. All warranties will be void if the Customer fails to carry out ongoing maintenance of the gutter system in accordance with GutterCare’s recommendations and all manufacturer’s guidelines and instructions.

d. Where any claim is made pursuant to the above warranties:

1. The Customer must notify GutterCare of any alleged damage or defect or potential claim as soon as possible once it becomes aware of the same, but in any event, within three days; and
2. The Customer must preserve the Goods and Services in the state they were at the time it became aware of such damage, defect or potential claim; and
3. Unless otherwise provided in this clause 11 or Consumer Law (if applicable), there is a no return policy on Goods and Services supplied under these Terms.

e. The Goods and Services will be considered to have been supplied in good condition unless the Customer notifies GutterCare of any alleged damage or defect within five days of supply.

f. If the Customer notifies GutterCare of any alleged damage or defect, it must:

1. Preserve the Goods and Services in the state in which they were supplied; and
2. Allow GutterCare access as reasonably required (and upon notice) to inspect the Goods and Services or, if requested by GutterCare, return any Goods to GutterCare and/or allow GutterCare to carry out any necessary Services, at GutterCare’s cost.

g. GutterCare will, at its absolute discretion, provide a replacement, or give a credit, for Goods and Services only where:

1. The Customer has complied with its obligations under these Terms and GutterCare is satisfied with the Customer’s claim; and
2. If GutterCare elects to have any Goods returned, the Goods are returned to GutterCare in the same condition as when first delivered to the Customer.

h. A Customer agrees that to the extent permitted by law:

1. GutterCare’s liability to the Customer in respect of damaged or defective Goods and Services is limited to replacement, remedy or credit;
2. GutterCare will not be liable for and a Customer releases GutterCare from all liability for any loss of profits, direct, indirect or consequential loss or damage which is or may be sustained by a Customer or any of its employees, officers, agents, contractors or other users of the Goods arising out of or in connection with the Contract and the supply of Goods; and
3. GutterCare’s overall liability to a Customer or any of its officers, employees, agents, contractors or other users of the Goods arising out of or in connection with the supply of Goods and Services is limited to the value of the Goods and Services supplied to the Customer.

13. PPSA

a. These Terms and Conditions constitute a security agreement for the purposes of the PPSA.

b. Definitions: unless the context requires otherwise, the terms used in these Terms and Conditions have the meanings given to them in, or by virtue of, the PPSA.

c. Consideration: in consideration of GutterCare agreeing to supply Goods or Services to a Customer, the Customer:

1. grants to GutterCare, at GutterCare’s discretion, a Security Interest and/or a purchase money security interest/PMSI in the Goods (which for the purposes of this clause 12 includes goods of the Customer incorporating Goods and goods of the Customer in respect of which GutterCare has provided Services);
2. agrees that any Goods supplied after the date of the Contract and any proceeds of sale of such Goods will be subject to:the Security Interest or PMSI granted in the Contract; andthe terms of these Tems and Conditions;
3. agrees that the Security Interest or PMSI has attached or will attach to all Goods supplied now or in the future to a Customer when a Customer takes possession of the Goods and that the attachment of the Security Interest or PMSI has not in any way been deferred or postponed; and
4. agrees to treat GutterCare’s Security Interest or PMSI in the Goods as a continuing and subsisting security with priority over a registered general security and any unsecured creditors.

d. Customer must take all steps: GutterCare may, by notice to a Customer at any time, require a Customer to take all steps that a Customer considers necessary or desirable to:

1. ensure that any Security Interest or PMSI arising under it, is enforceable against a Customer or any third party; and
2. protect, perfect, record, or better secure GutterCare’s position as a first ranking security.

e. Registration: a Customer acknowledges that GutterCare reserves the right to register a financing statement in respect of any Goods supplied by GutterCare to a Customer under the Contract and that GutterCare can require a Customer to pay the cost and expense of registering a financing statement or a financing change statement.

f. Notices: a Customer waives the right to receive a copy of any notice, verification statement confirming registration of a financing statement or a financing change statement relating to the Security Interest or PMSI under the Contract, unless the notice or statement is required by law and cannot be excluded.

g. Protection of Goods: a Customer agrees:

1. not to allow any person to register a financing statement over any of the Goods without GutterCare’s prior written consent;
2. that a Customer must immediately notify GutterCare if a Customer becomes aware of any person taking steps to register a financing statement in relation to the Goods; and
3. to perfect and maintain any Security Interest or PMSI that a Customer may have in the Goods under the PPSA.

h. Contracting out of enforcement provisions: The parties agree that sections 114(i)(a), 133 and 134 of the PPSA are excluded. A Customer waives its rights under sections 121, 125, 129, 131 and 132 of the PPSA.

i. Insolvency: if a Customer becomes insolvent, without prejudice to any of GutterCare’s other rights:

1. a Customer’s right to dispose of the Goods in the ordinary course of business in accordance with the PPSA and any of a Customer’s other rights in respect of the Goods immediately cease; and
2. a Customer must immediately return the Goods to GutterCare in which title has not passed as provided for under clause 7.

14. PRIVACY

a. In receiving the Goods and Services and placing a Booking for the same, GutterCare may collect the Customer’s Personal Information. GutterCare’s privacy policy sets out more information on how it collects and uses the Customer’s Personal Information. A copy of GutterCare’s privacy policy is available on its website and is deemed to be incorporated into these Terms, in the then current form from time to time.

15. MISCELLANEOUS

a. These Terms and Conditions shall be governed and construed in accordance with the laws of New Zealand.

b. Any statement, invoice, notice or other document including any court process (“Notice”) may be given or delivered to or served upon a Customer by GutterCare by dispatch by prepaid post addressed to a Customer at the last address of a Customer known to GutterCare. A Customer shall be deemed to have received any Notice 3 Business Days after posting.

c. A Customer shall not assign any rights or obligations under these Terms and Conditions without the prior written consent of GutterCare.

d. GutterCare may assign its rights (including the right to payment) to a third party without the consent of a Customer.

e. The singular shall include the plural and vice versa, words importing any gender shall include every other gender and where there is more than one Customer a Customers shall be bound jointly and severally.

f. If anything in these Terms and Conditions is unenforceable, illegal or void then it is severed and the rest remains in force, unless the severance would change the underlying principal commercial purpose or effect.

g. GutterCare may vary these Terms and Conditions, at any time, by giving a Customer notice in writing of the variations. The variations will apply to any subsequent Order.