Terms of Trade

1.     NATURE AND SCOPE OF TERMS OF TRADE

1.1 Kings supplies the Goods and Services.
1.2 These Terms form a contract that applies between Kings and the Client in respect of any supply of Goods and/or Services provided to the Client by Kings and cover the provision of any credit Kings may provide by not charging the full cost of Goods and/or Services to be supplied in one lump sum in advance.
1.3 The Client acknowledges that any request to Kings to provide Goods or Services constitutes an acknowledgment by the Client that the contract between the Client and Kings shall be governed by these Terms.
1.4 From time to time, Kings may issue updated or amended terms of trade which shall be deemed to be accepted 10 Business Days following Kings sending such amended terms to the Client and any subsequent supply of Goods and/or Services shall be governed by the updated or amended terms.
1.5 These Terms will apply to all transactions between Kings and the Client.

2. REQUEST FOR GOODS AND SERVICES

2.1 The Client will request Goods and/or Services (hereafter referred to as an “order”) in the manner, form and in accordance with the procedures required by Kings from time to time. Each order:
(a) Is subject to these Terms except as is otherwise specified by Kings*; and
(b) At a minimum, must specify all of the matters required by Kings in respect of the order, including completion or provision of any particular Client information or order form Kings may provide from time to time.
*The onus is on the Client to request any such specifications(see clauses 2.2 and 2.5).
2.2 All orders submitted by the Client will be subject to acceptance in writing by Kings (in its absolute discretion) and will not become binding on Kings until such acceptance (which may be (without limitation) in the form of a Service description, an estimate or quote). Any variation, waiver or cancellation of any order or any amendment to terms or conditions of the order made by the Client once an order has been made shall be of no effect unless accepted in writing by Kings.
2.3 The Client acknowledges and agrees that Kings is not under any duty to accept orders from the Client and may cancel any arrangement with the Client at any time.
2.4 Once submitted under clause 2.1, the Client may not revoke an order for 7 days and once accepted under clause 2.2, the Client may not revoke or cancel an order without Kings prior written consent which may be withheld at Kings sole discretion and in which case Client will be liable for all resulting Damages.
2.5 Except as set out in clause 2.1(a) if there are any terms or conditions inserted or imposed in an order by the Client that are inconsistent with or in addition to these Terms they are hereby rejected by Kings and will be deemed null and of no effect, even if Kings accepts or acknowledges such order itself.
2.6 If for any reason Kings considers that the Client may be unable to meet its payment obligations to Kings as they fall due, Kings shall be entitled to take (in addition to any other remedies it may have) all or any of the following actions until those obligations are fully satisfied:
(a) Demand immediate payment of part or all of amounts for supplies made whether due or not; and
(b) Require security for such amounts to its full satisfaction before any further supplies are made to the Client; and
(c) Withhold without notice deliveries of Goods ordered by the Client; and
(d) Suspend and cease supply of any Services to the Client without notice.
2.7 Kings shall be entitled to cancel all or any part of any contract or contracts with the Client, in addition to its other remedies (including its right to recover all sums owing to it for supplies already made), in the following circumstances:
(a) If any amounts payable by the Client to Kings are overdue; or
(b) If the Client fails to meet any obligation under these Terms or any other contract with or obligation to Kings; or
(c) If the Client fails to meet reasonable credit or financial requirements established by Kings, including any limitations on allowable credit; or
(d) If the Client becomes insolvent; or
(e) If a receiver is appointed in respect of the assets of the Client; or
(f) If the Client no longer carries on business or threatens to cease to carry on business; or
(g) If an arrangement with the Client’s creditors is made or likely to be made; or
(h) If the ownership or effective control of the Customer is transferred or the nature of the Client’s business is materially altered; or
(i) If the Client makes default in taking delivery in time,
AND Kings shall not be liable for any Damages suffered by the Client arising from such cancellation and Kings shall be entitled to dispose of the balance of the Goods contracted for and the Client shall indemnify Kings for any loss in price incurred by Kings on realisation against the price at which the Goods were contracted to be bought by the Client.
2.8 Any such cancellation, refusal or delay by Kings does not constitute a termination of any agreement with the Client (unless Kings so advises the Client) and does not constitute a breach of any such agreement or these Terms by Kings and shall be without prejudice to any other rights or remedies Kings may have.

3. PAYMENT TERMS

3.1 Once Goods and/or Services are ordered, Client must pay in cleared funds the Price for the Goods and/or Services to the Kings as detailed in this clause 3 without deduction or setoff, notwithstanding delivery or performance may not have occurred. The onus is on the Client to confirm the Scope of Services and the Price prior to requesting Goods and/or Services.
3.2 Unless otherwise stipulated in respect of a particular supply, the Price is payable:
(a) as to 50%, immediately upon Kings notifying the Client of the Price (whether such notification occurs before or after an order) and the total balance is payable:
(i) where orders are for Goods only, before dispatch or collection of the Goods; or
(ii) for Services supplies or mixed Goods and Services supplies, upon delivery.
(b) where Kings has previously agreed to provide credit facilities to a Client, in full on or before the 20th day of the month following date of invoice,
PROVIDED that Kings reserves the right to change payment terms at any time prior to the provision of Goods and/or Services (including, without limitation, requiring additional payment in advance or progress payments).
3.3 Kings has the absolute right to withhold or suspend delivery and supply of Goods and/or Services where a Client does not adhere to these payment terms.
3.4 In the event of any payment default under these Terms, Client shall pay Kings default interest (at the rate of 2.5% per month above the current overdraft rate Kings has with its bank) which shall accrue on a daily basis from the date when payment is due until the date when payment is actually made in full whether before or after judgement. In addition, in the event of the default subsisting on that date 30 days after the date when the payment fell due, Client must pay an administration fee to Kings of the greater of $25.00 or 10% of the amount then due.
3.5 Client shall be liable to pay all Damages incurred by Kings in relation to obtaining remedy of any failure to pay.
3.6 Without limiting clauses 3.1 through 3.7 (inclusive), the Client’s payment obligation to Kings in accordance with these Terms is unconditional, and the Client’s failure to make payment on the due date shall be an automatic default of these payment terms and Kings shall not be required to give the Client any prior notice of default. In accepting any payments from the Client, Kings will not be bound by any conditions or qualifications or other terms which the Client may have attached to those payments.
3.7 The Price is subject to Variations and does not include any errors or omissions.
3.8 If alternative or special payment terms or payment plans are agreed between a Client and Kings, they must be agreed in writing and the Client must strictly adhere to the terms of those plans (including payment of any interest). Clauses 3.1 and 3.3 through 3.7 (inclusive) will apply to all payment plans or special arrangements entered into unless expressly excluded in writing by Kings.

4. PRICE

4.1 Unless otherwise stated, Price does not include GST, other taxes, levies and tariffs, which are payable by Client on the Goods and/or Services the subject of these Terms, as invoiced by Kings on the payment terms on that invoice and if rendered on the same date, or on the same invoice as the Goods and/or Services supplied, at the same time as payment for the Goods and/or Services to which the GST relates. Where relevant, all other costs and expenses (including without limitation exchange rate fluctuations, insurance charges, travel charges, freight, storage fees, or packaging costs), will be charged to Client and are payable to Kings upon demand.
4.2 Subject to clause 4.3, Price will be as specified and valid for the term on the Price notification, but in no case, unless specified, shall a Price be valid for more than 30 days .
4.3 Kings reserves the right to increase the Price upon written notice to the Client and to take into account:
(a) any agreed variations including without limitation changes to Scope of Services, quantities, specifications and time of supply.
(b) additional costs incurred by Kings including but not limited to additional administration and/or estimation costs.
(c) additional Goods and/or Services required due to the discovery of hidden or unidentified difficulties that were not apparent at the time Price and/or Scope of Services was first notified.
(d) increases in the costs of goods or services to Kings which are beyond the Kings’ control, including without limitation increases in the cost of labour, cost of materials or cost of consumables.

5. RISK AND DELIVERY (Goods)

5.1 If Kings has specified an anticipated delivery or performance date for Goods and/or Services (including any staged supply), Kings will use reasonable endeavours to arrange delivery or performance by that date but is not liable for any delay, nor does such delay entitle the Client to any Damages whatsoever nor entitle the Client to refuse to accept delivery or cancel any order.
5.2 Where Goods are to be collected by Client from Kings, Kings will notify Client (verbally or in writing) of completion and Client must collect them within 48 hours of such notice, provided that after that 48 hour period:
(a) Client shall on demand pay to Kings reasonable storage costs until such time as the Customer collects them, such costs to be determined by Kings; and
(b) Delivery will be deemed to have occurred and risk (including, without limitation, insurance responsibility) in the Goods shall be deemed to have passed to the Client.
5.3 Otherwise, delivery of Goods shall be deemed complete on the earliest to occur of the following:
(a) Kings installs or otherwise gives possession of the Goods to the Client; or
(b) The Goods are left at the Client’s nominated address; or
(c) Goods are given to a carrier, for delivery to the Client.
5.4 Risk (including, without limitation, insurance responsibility) of any loss, damage or deterioration of or to the Goods shall pass to the Client upon delivery of Goods to the Client. To avoid doubt, Kings shall not be liable to the Client for any Damages once Goods are loaded onto any carrier, including but not limited to loss in transit and/or damage in transit and/or prolonged exposure of the Goods to the environment.

6. INTELLECTUAL PROPERTY RIGHTS AND RETENTION OF TITLE

6.1 Kings retains all ownership rights in all Intellectual Property of any kind created by Kings for any Client. Client may not reproduce or otherwise use Kings Intellectual Property or provide it to a third party without Kings express consent.
6.2 Title in Goods passes to the Client when the Client has made payment in full for them and all other outstanding indebtedness to Kings.
6.3 Until title passes from Kings to the Client in accordance with clause 6.2:
(a) The Client shall be deemed to be in fiduciary capacity as bailee of Kings in respect of any Goods supplied by Kings; and
(b) The Client shall, if required by Kings, store the Goods in such condition and place that it is clear that they are owned by Kings; and
(c) The Client shall not under any circumstances mix the Goods supplied by Kings with other goods in any manner whatsoever; and
(d) The Customer shall on request disclose to Kings all relevant information regarding the Goods.
6.4 If the Client fails to pay any amount of the Client’s total indebtedness to Kings under these Terms when it is due to Kings or where the Client is otherwise in breach of these Terms then without notice and without prejudice to any of Kings other rights and remedies, the Kings may recover and/or re-sell Kings Goods that have been delivered to the Client and the Client irrevocably grants Kings, its Personnel agents and servants leave and licence at all reasonable times to enter on and into any property occupied by the Client, without notice in order to inspect, search for and recover Goods supplied and Kings shall not be liable to the Client or any third party for the exercise of its rights under this clause.
6.5 Where Kings lawfully repossesses, stores or resells any Goods agreed to be sold the Client shall indemnify Kings for all resulting Damages (including without limitation losses on resale).

7. PERSONAL PROPERTY SECURITIES ACT 1999

7.1 The Client grants to Kings a specific security interest in the Goods and the proceeds of the Goods and the Client, being a purchase money security interest.
7.2 The Client will not enter into any security agreement that permits any other person to register any security interest in respect of the Goods or the proceeds.
7.3 The Client undertakes to:
(a) Sign any further documents and or provide any further information (which information the Client warrants to be complete, accurate and up-to-date in all respects) which Kings may reasonably require to enable registration of a financing statement or financing change statement on the PPSR and ensure that Kings security interest is a perfected security interest; and
(b) Not register a financing change statement or a change demand in respect of Goods (as those terms are defined in the PPSA) without Kings prior written consent; and
(c) Give Kings not less than fourteen (14) days prior notice of any proposed change in the Client’s name and or any other change in the Client’s details (including, but not limited to, changes in the Client’s address, facsimile number, email address, trading name or business practice).
7.4 Further:
(a) Unless otherwise agreed to in writing by Kings, the Client waives its right to receive a verification statement in respect of any financing statement or financing change statement relating to the security interest.
(b) To the maximum extent permitted by law, the Client waives its rights and, with Kings agreement, contracts out of the Client’s rights under the sections referred to in section 107(2)(c) to (i) of the PPSA.
(c) The Client agrees that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these Terms and, with Kings agreement, contracts out of such sections.
(d) The Client and Kings agree that section 109(1) of the PPSA is contracted out of in respect of particular Goods if and only for as long as Kings is not the secured party with priority over all other secured parties in respect of those Goods.
7.5 For the purpose of this clause, the expressions “proceeds”, “purchase money security interest”, “security agreement”, “security interest”, “perfected security interest”, “verification statement” and “financing change statement” have the meanings given to them under, or in the context of the PPSA.

8. THE CLIENT’S COVENANTS

8.1 The Client covenants and undertakes to:
(a) Ensure Kings access to any location at which Goods and/or Services are to be performed;
(b) Ensure to Kings reasonable satisfaction that such location remains in a state and condition that is safe for Kings and its Personnel and complies with all necessary bylaws and restrictions;
(c) Not cause any disruption or obstruction to the supply of the Goods and/or Services and to follow all reasonable instructions provided by Kings about the Goods and/or Services; and
(d) Where Goods and/or Services require co-ordination with other suppliers then the Client will supply Kings with a schedule (and all necessary updates thereto) detailing all relevant information so as to allow the Kings sufficient time to co-ordinate with the Client’s other suppliers.

9. GOODS CLAIMS

9.1 Direct sales of Goods for personal or household use by a consumer shall be dealt with in accordance with the Consumer Guarantees Act 1993. All other claims (such as for Goods supplied in trade) shall be dealt with in accordance with clauses 9.2 to 9.6 (inclusive).
9.2 In respect of claims made in respect of defective Goods, claims must be made against Kings in the following manner:
(a) Immediately following delivery or part delivery as the case may be Client must notify Kings in writing, such notice providing specific details and photographic evidence of any claimed defects; and
(b) In any case where the defect is not reasonably able to be ascertained upon delivery, the Client must notify Kings, within 7 days of delivery, with specific details and photographic evidence of any claimed defects and:
(i) Grant Kings licence at all reasonable times to enter on and into any property occupied by the Client, without notice in order to inspect the claimed defect; and/or
(ii) the Client must return the Goods (if requested by Kings) at Kings cost.
9.3 In the event Kings accepts such a claim it may, at its option:
(a) replace or repair the Goods; and/or
(b) credit the Client’s account; and/or
(c) pay an amount equivalent to the established claim,
in full settlement of the claim.
9.4 In the event Kings does not accept such a claim, the parties shall resolve any dispute in accordance with clause 13 of these Terms.
9.5 To avoid doubt:
(a) Kings will not accept Goods returned for credit that are in anyway damaged, or not of merchantable quality, or that have been specially manufactured or procured for the Client; and
(b) Where Kings repossess Goods returned in good merchantable quality, Kings shall also be entitled to charge the Client a re-stocking fee of 10% of the Price of such Goods supplied.
9.6 In no event whatsoever shall any claim for defect in Goods exceed the Price of such defective Goods supplied.

10. LIMITATION OF WARRANTY/LIABILITY

10.1 Except as otherwise warranted by Kings, the Client acknowledges that it must rely upon its own judgment as to the nature, quality and condition of the Goods and/or Services supplied by Kings and as to their sufficiency for any use or purpose and the Client acknowledges that Kings is under no duty to ascertain the suitability of the Goods and/or Services for any purpose whatsoever and that no such representation has been made by Kings.
10.2 The Client agrees that the conditions, warranties and guarantees set out in the Commercial Law Act 2017 will not apply and are expressly excluded from these Terms.
10.3 Except as may be provided for under the Consumer Guarantees Act 1993 (where the Client obtains Goods and/or Services for personal, domestic or household use) or any other law that cannot be excluded, or where Kings provides any express written warranty in these Terms or as otherwise provided to the Client in respect of the Goods and/or Services, Kings provides no other warranty, expressed or implied, including any implied warranty of merchantability or fitness for purpose or otherwise and any warranties expressed or implied by law or statute, in respect of Goods and/or Services whether in respect of quality, fitness for intended purposes or otherwise, and all such warranties are excluded to the fullest extent (but only to the extent) that applicable law permits exclusion.
10.4 Subject to the Consumer Guarantees Act 1993 (where it applies), the parties agree that Kings or its Personnel shall not in any case whatsoever be liable for:
(a) Any special, incidental, indirect, punitive or consequential Damages; loss of profit, revenue, goodwill, use or the cost of procuring substitute Goods and/or Services;
(b) Damages, in the aggregate, exceeding the value of the payments actually received by Kings from the Client for the Goods and/or Services in the preceding six (6) months; or
(c) Damages in respect of any claim made:
(i) More than three (3) months from the date the Client becomes aware of the circumstances leading to that claim; or
(ii) More than six (6) months after the relevant cause of action arises.
10.5 In accordance with section 5D of the Fair Trading Act 1986, where the Client is a business and the Goods and/or Services are provided in trade, the Client agrees that it does not rely on any representations or other conduct by Kings either before or during the provision of the Goods and/or Services and that accordingly sections 9, 12A, 13 and 14(1) of the Fair Trading Act 1986 will not apply.

11. INDEMNITY

11.1 The Client indemnifies Kings from and against all Damages Kings or its Personnel, contractors or agents sustain or incur (directly or indirectly) arising out of or resulting from:
(a) Any breach of these Terms by the Client;
(b) Any contravention of applicable laws or regulations by the Client;
(c) Any claim by any third party arising from any act or omission of the Client in connection with these Terms (whether negligent or not), including and misrepresentations, warranty or agreement made by the client with respect of Kings or any of Kings Personnel;
(d) Without limiting clause (b), any negligent, wilful, reckless or unlawful act or omission of, or any intentional misconduct by the Client in connection with these Terms; or
(e) Any claim by the Client, to the extent that such claim is beyond the scope of Kings liability to the Client under these Terms.

12. CONSTRUCTION CONTRACTS ACT 2002

12.1 In addition to its rights under these Terms, Kings shall be entitled to exercise all or any powers available to Kings under the Construction Contracts Act 2002 including suspension of work, adjudication and seeking charging orders.
12.2 As part of or in addition to any invoice the Kings may serve a payment claim on the Client for any claimed amount (provided all such claims will be labelled as such, and include reference to the Construction Contracts Act 2002).
12.3 Where Kings submits a payment claim the Client may respond to the payment claim by providing a payment schedule within twenty (20) days of the date of receipt of the payment claim but without prejudice to Kings right to refer the dispute (or any part of the payment claim) to adjudication.
12.4 If the Client does not respond to a payment claim in accordance with clause 12.3, the Client becomes liable to pay the payment claim.
12.5 Unless otherwise agreed, where Kings serves a payment claim, the Client will pay the amount it becomes liable to pay under this clause within twenty (20) days of the date of the payment claim.
12.6 In this clause 12 where used the following terms shall have the meanings ascribed to them in the Construction Contracts Act 2002; “claimed amount”, “payment claim” and “payment schedule”.

13. DISPUTE RESOLUTION

13.1 Either party may give the other party notice of any dispute arising in respect of, or in connection with, these Terms (“Dispute”).
13.2 In the event of a notice being given pursuant to clause 13.1 above, then the parties must:
(a) Meet online by a method determined by Kings to discuss the Dispute and make a genuine effort to resolve the Dispute;
(b) If no resolution of the Dispute has occurred within ten (10) Business Days from the date of the giving of the notice in accordance with clause 13.1, then the parties shall be free to pursue their remedies as they see fit.
13.3 Nothing in this clause shall prevent a party making application to a court for an injunction or other urgent interlocutory relief.

14. PRIVACY AND COMMERCIAL INFORMATION

(a) The Client acknowledges it has read, received, agreed to and understood Kings Privacy Act 2020 policy and information at www. kingsengineering.co.nz.com/privacy.
(b) From time to time Kings would like to send you information about Goods, Services or other topical commercial informational, promotional or marketing material that relate to Kings or its affiliates and third parties that it considers that the Client may be interested in. The Client consents to Kings forwarding such information to the Client by email. Should the Client wish to cease receiving this information it may unsubscribe from it at any time using the process set out in “Your rights” in the Privacy Policy at www.KingsEngineering.co.nz
14.2 To be effective, any waiver of any or all of the terms and conditions in any agreement the Client has with Kings must be in writing.
14.3 The Client may not assign all or any of its rights or obligations under these Terms.
14.4 Kings is not bound, unless otherwise stated in these terms, by any error or omission on any Price information, website material, invoice, order form or other document or statement issued by Kings.
14.5 Where Kings has rights and remedies at law or otherwise in addition to the rights set out in these Terms, those rights and remedies will continue to apply.
14.6 Failure by Kings to enforce any of the terms and conditions shall not be deemed to be a waiver of any of the rights or obligations Kings has under these Terms.
14.7 Kings shall not be liable for any breach or failure or delay to perform its obligations where the breach or failure or delay is occasioned by any cause or causes beyond its reasonable control (including but not limited to) strikes or lockouts, civil commotion, hostilities, changes in program, conflicting works with other trades, independent third-party inspections, supply delays (including of exotic product due to short notice), acts of God (including
14.8 severe weather events), viral outbreaks, government mandated lockdowns, epidemics or pandemics.
14.9 If any of these Terms or part thereof are held to be invalid, illegal, unenforceable or void for any reason or reasons, all of the remaining Terms (or part thereof) shall remain in full force and effect.
14.10 Other than in accordance with law the Client shall not make any statement or undertake or perform any act or omission which brings or is reasonably likely to bring Kings or any of its Personnel into disrepute, and without limitation, where the Client is not an individual, it shall not cause or allow any of its Personnel to engage in any activity, conduct or otherwise that shall or may prejudicially affect the reputation or goodwill of Kings or its business.
14.11 These Terms are governed by the law of New Zealand and each party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts of New Zealand.

15. DEFINITIONS AND INTERPRETATION

In interpreting these Terms:
“Business Day” means any day not being a Saturday or Sunday or statutory holiday in Auckland, New Zealand.
“Client” means the person or entity purchasing Goods and/or Services from Kings from time to time.
“Damages” means all liabilities, expenses, losses, damages and costs (including collection costs and legal costs on a full indemnity basis) whether incurred by or awarded against a party including those associated with any third party claim, and whether arising under contract, tort (including negligence) or otherwise.
“Goods” means all goods supplied by Kings to a Client for value.
“GST” means goods and services tax payable in accordance with the Goods and Services Tax Act 1986.
“Intellectual Property” includes (whether in visible, electronic or any other form) all brands (including the Kings name and brand), contracts, training material, know-how, techniques, nutritional or natural health knowledge techniques and literature, goodwill, logos, formulae, techniques, know-how, specifications, designs, drawings, copyright, manufacturing processes, patents and trademarks (if any) whether registered or not, software (in source and object code), business or training materials and strategies, confidential business information including market and marketing strategies, business contracts and intellectual property relating to the business of, or Goods or Services of KINGS.
“Kings” means Kings Engineering Limited company number 5877441.
“Personnel” means Kings employees, agents, contractors, subcontractors, shareholders, principals, officers or directors.
“Price” means (subject to any Variation) the purchase price payable for the Goods and/or Services as notified by Kings from time to time verbally or in writing.
“PPSA” means the Personal Property Securities Act 1999.
“PPSR” means the New Zealand Personal Property Securities Register.
“Services” includes all design, fabrication, blasting and coating or other services provided by Kings to a Client and “Scope of Services” means the details provided by Kings outlining the provision of the Goods and/or Services, which may be delivered verbally or in writing.
“Terms” means these terms and conditions, as may be amended from time to time. “Variations” means any matter affecting the Price, as detailed in clause 4.3.
Any reference to ‘$’ or ‘dollars’ is to the legal currency of New Zealand.