Terms and Conditions

Gaelic Holdings Ltd - T/A Tauranga Sandblasting

CLIENT’S ACKNOWLEDGEMENTS

1.1 This Contract becomes legally binding between the two parties (based on these terms and conditions contained herein) and is deemed accepted by the Client once the Client places an order for the supply of Goods or if the Client accepts the provision of the Services from TS. In such events, the Client will immediately be bound, jointly and severally, by these terms and conditions.

1.2 No amendment of this Contract will be of any force or effect unless in writing signed by an authorised representative of each party.

1.3 Upon agreement of this Contract, both parties declare and confirm that they are lawfully entitled to enter this Contract (including where the Client is to act in the capacity as a trustee of any trust (“Trust”). Furthermore, the Client declares that they are not insolvent and accepts that this Contract creates an enforceable legal agreement on the Client to meet his/her obligations and responsibilities under the Contract (including payment when requested).

1.4 If the Client is primarily a Trust entity, the Client declares that the provisions of the Trust do not imply excluding or removing the right of indemnity of the Client against the Trust. The Client agrees to notify TS forthwith if there are any substantial changes to the Trust that could affect the business relationship and the Client’s obligations under the Contract, which includes any variations or resettlements of trust assets or any changes of trustees, that may or could be the basis of any security under any contract with TS.

1.5 The Client acknowledges and accepts that:

(a) Unless any representation, statement, condition, or agreement is expressed in writing, by GAELIC HOLDINGS LIMITED trading as TAURANGA SANDBLASTING or its authorised representative, TS shall not be bound by any such unauthorised statements (including any verbal representation or advice); and

(b) Both parties agree to fully comply with all current requirements by law pertaining to electronic messaging (including but not limited to, Unsolicited Electronic Messages Act 2007) in the use of emails or mobile messaging or e-signatures in accordance with Contract and Commercial Law Act 2017 for compliance, which may form part thereof, the acceptance of this Contract; and

(c) Any change to the Client’s contact details must be advised to TS immediately. Any communications will be sent to the last known contact details that the Client provided. Unless the Client instructs TS otherwise, TS may (if applicable), communicate with the Client with third parties via email or by other electronic means. The recipient remains responsible for virus checking emails and any attachments; and

(d) Non-receipt, delayed receipt, inadvertent misdirection, or interception by third parties in any form of communication is a risk, whether electronic, postal, or otherwise. TS is not responsible for any such matters beyond TS’s control; and

(e) Any suggestions or recommendations provided by TS are done so in good faith and in the best interest of the Client or the Client’s agent/representative and is based upon TS’s time, skills and experience in the industry. If the Client or the Client’s agent/representative chooses to ignore such suggestions or recommendations when offered by TS, TS shall be entitled to halt the order of any Goods or the commencement of the Services until TS obtains written consent from the Client or their agent/representative to continue as planned. TS shall have no liability or responsibility for any indirect or consequential injury, loss, damage, or expense whatsoever that arises, after TS has been instructed to proceed with the Services; and

(f) The performance of sandblasting OR sodablasting metal surfaces is a harsh and abrasive procedure, all care will be taken during this process, but TS does not guarantee that distortion or warping with a metal surface may occur, thereby should this happen, it will not be deemed a defect. TS reserves the right to halt the Services if TS believes the process is proving to be too abrasive for the Client’s item and seek instructions from the Client before proceeding further as per sub-clause 1.5(e); and

(g) Furthermore, because of the nature of the sandblasting, corrosion and/or filler may be exposed or removed during the Services, if this should occur TS shall inform the Client and provide a quotation for repair. If the Client requests TS to proceed with painting without first repairing the said damaged area, any guarantees or warranties will be limited accordingly to exclude defects arising from this issue; and

(h) Any pricing supplied by TS based on estimates shall not be binding on TS in accordance with clause 4.2. The Client agrees to prior to acceptance and/or placing an order for Goods or Services, to advise the colour and finishes chosen, where colours have been chosen from a paint company’s paint code, such colours are to be checked by the Client against any sample supplied by TS or the third-party supplier to ensure the colour is correct. The Client accepts any differences in supply discovered after an order is placed will be subject to a variation in Price and additional costs will apply as per clause 5; and

(i) Any Services requested by the Client to be urgently done within a specified time period that results in TS’s staff having to work outside normal business hours (including but not limited to, working through lunch breaks, weekends and/or Public Holidays), then overtime rates will apply for the additional labour cost, unless otherwise agreed between TS and the Client at the time of signing this Contract; and

(j) Goods are always subject to availability. If any ordered Goods become unavailable, TS agrees to notify the Client and offer alternative Goods and will advise of any changes in the quoted Price prior to Delivery. Billing for changes in Goods supplied, whether an increase/decrease will be done so, in accordance with clause 5, where required.

1.6 Insurance Claims:

(a) If the Goods and/or Services provided by Gaelic Holdings Limited trading as Tauranga Sandblasting are the subject of an insurance claim that the Client has made, then the Client acknowledges and accepts the responsibility of payment of any excess due and payable under the Client’s insurance policy and agrees to honour their obligation for payment when due, for all Services carried out by TS, regardless of whether the insurance claim is successful; and

(b) The Client grants TS permission to engage on the Client’s behalf directly with the Client’s insurance company to effect payment upon the completion of the Services and/or any progress payment, if so, agreed by all parties.

2. CREDIT ACCOUNT AUTHORITY

2.1 If the Client wishes to operate a credit account with TS, it is agreed between the two parties that an application for credit needs to firstly be completed and a credit limit established and approved before any Goods or Services will be supplied. No delivery of Goods and/or Services will be supplied to the Client, if their credit account exceeds their credit limit or if they are in default of TS’s payment terms, the credit account will need to be rectified and paid to date before TS will dispatch any further Goods or supply any Services.

2.2 If a third party is to be engaged by the Client and given full authority to act on the Client behalf, as their nominated agent, in the ordering of any Goods or Services, payable under the Client’s credit account with TS, then the Client must advise TS in writing (including any limits place on that authority i.e. $ thresholds), prior to that party being able to request the supply of any Goods or Services.

2.3 Once the Client’s nominated agent has been approved to make decisions and transactions on the Client’s behalf, this authority shall continue until such time as written notice is received by TS to the contrary, that the named agent, no longer has this authority to act on the behalf of the Client.

2.4 Notwithstanding the conditions of clauses 2.1 and 2.3, the Client remains liable for all and any costs TS suffers (including any profit margin, it is agreed, TS can pass on) in providing any Goods or Services, or variation/s, regardless of whether the Client requested the supply directly or the Client’s nominated agent.

3. ERROR AND OMISSIONS

3.1 TS shall have no liability, unless attributed to negligence and/or willful misconduct by TS, arising from any typographical, clerical, or other error, mistake or omission in any information, communication or other document or information issued by it.

4. PAYMENT TERMS

4.1 The Price will be as stated on the invoice supplied to the Client or as stated in the quotation, prior to acceptance, but the quoted Price shall only be binding for the period offered by TS, if no date is stated, then the quote shall apply for a period of no less than 30 Business Days).

4.2 Estimates: Notwithstanding clause 4.1, if TS is requested to supply an estimate Price based on a visual inspection of the repairs requested of TS by the Client, shall not be deemed binding upon TS as the full and final Price for the job, as the full and final Price can only be validated once the Services are completed. In the interest of being fair and reasonable in respect of the pricing with the Client, TS agrees to keep the Client informed, if additional damage is discovered during the repair process, if TS considers the final Price may exceed more than 10% of the original estimate, so the Client can grant approval first before TS continues further.

4.3 Deposits: Are at the discretion of TS and the deposit amount may vary due to the nature of the Services or Goods to be supplied. Any deposit required will be stated at the time of quoting and shall become immediately due and payable to TS upon the Client’s acceptance. International imported Goods are subject to 50% of the Price being paid upfront before an order is placed.

4.4 The Price will be payable by the Client by the due date established by TS, as follows:

(a) Prior to, or at the time of Delivery of the Services (complete with the supply of any Goods); or

(b) Credit Approved Client’s:

(i) As agreed by both parties, by the date as stated in TS’s schedule for payments; or

(ii) Upon the issue of a statement to the Client’s postal or email address, 20 Business Days following the end of every month; or

(c) In all other cases, unless stated otherwise, the date for payment is 7 Business Days from the date of any invoice/s issued (by email or post) to the Client by TS.

4.5 Receipt for payment can be made through direct bank transfer, bank card, eftpos or debit card as acceptable payment methods. Outside of these options, TS must be contacted first, before the supply of any Goods or commencement of any Services occurs.

4.6 If the cost to TS in performing the Services increases after this Contract has commenced due to any increase, or the introduction by a statutory or other authority of a tax, duty, charge, levy, or legislation then the amount of the increase is to be treated as a variation and clause 5 shall apply.

4.7 For the avoidance of doubt, it is agreed by both parties that the Client may not set-off against any monies due to TS by the Client, that the Client considers TS owes the Client, it must not be automatically deducted from the Price, nor can any payment due be withheld by the Client because part of any invoice is in dispute. Where the Client believes that there has been a mistake made, and monies are due, TS requests that the Client contacts TS within 7 Business Days of receipt of the invoice/statement, so that TS may investigate any alleged error. If a mistake has occurred, the Client’s subsequent invoice/statement will be adjusted.

4.8 Storage: - If the Client’s requests that the Goods or Vehicle to be stored, as the Client is unable to take delivery or collection of same, then TS may (at its sole discretion) after thirty-six (36) hours of such advice, entitled to charge a fee for storage, current rates are available upon request from TS.

4.9 Apart from where TS states otherwise, GST is not included in the Price, for all relevant Goods and Services supplied (including but not limited to, all stock, Services, costs, duties, fees, and freight charges) except where GST is explicitly shown as included in the Price.

5. VARIATIONS

5.1 TS’s Price may be subject to adjustment (upon written notice to the Client):

(a) If the Client requests a variation to the Services (including but not limited to, change of design, paint colour selection or poor surface preparation; or

(b) If upon commencement of the Services, additional Goods (including equipment) are necessary due to unexpected issues, such as:

(i) Any services that are completed by a third-party contractor (including any work needing to be redone, if TS finds what has been completed not to be of a suitable standard) engaged by the Client. However, if the Client requests TS to proceed and paint the surface as it is, TS shall not be held responsible for the finished look or any defects arising from the preparation work completed by the Client or any other third party; or

(ii) Failure of the Client to fully disclose all relevant information relating to the Services that may affect the quantity of Goods required for the job,

(c) Any increases or decreases with the pricing of the Goods (including parts, components, or Goods availability) or labour beyond TS’s reasonable control (such as third-party suppliers’ costs, fluctuations with the currency exchange rate or government/industry salary award rates etc.); and

(d) Needing to dewater any mains, ducts or other conduits or channels that may flood or allow water ingress because of the Services; or

(e) If TS needs to charge for a re-gas of an air-conditioning system, if discovered after the Services commence that the repair involves removing the air-con condenser or if it was damaged in the accident; and

(f) Any adjustment to the Price due to variation/s shall be allowed for at the time of the final invoicing or the next payment claim made by TS.

5.2 Any variations to the Client’s original quote will be described in full as a variation on the invoice. If TS does not receive a respond to any variation invoice presented to the Client within 7 Business Days from the date of receipt of the invoice, TS will assume that the variation invoice is accepted without dispute. Payment will be due as per the date stated on the said invoice.

5.3 The Client acknowledges and agrees that TS shall be entitled to:

(i) Retain any components replaced during the provision of the Services; and

(ii) The right to retain all proceeds obtained from the sale of such components to any auto recycler or salvage yard.

6. PROVISION OF THE SERVICES

6.1 If TS is only to supply Goods (no installation) then Delivery (“Delivery”) relating to any Goods are understood to have taken place when:

(a) The Goods are picked-up at TS’s address by the Client or the Client’s representative; or

(b) When a signed Delivery docket is obtained by TS’s designated courier at the Client’s given Delivery address.

6.2 Any Delivery costs associated with the supply of Goods or Services (if applicable) shall be covered as such in the quotation and will be stated on the invoice issued to the Client by TS. Additional travel charges will apply where the Services are to be provided outside of a 25km radius of TS’s base.

6.3 Where TS is to perform the Services on Site, the Client acknowledges and accepts TS’ recommendation, that vacating the premises both during the provision of the Services and the drying period is in the best interest of the Client, due to fact of wet areas and the fumes generated from the solvent based polyurethane coatings are toxic when wet, and for this reason and the interest of health and safety TS also suggests that the Client should remove all foodstuffs, fabric, leather and any other ‘porous’ materials from close proximity of floors being sanded and polished. All costs associated with alternative accommodation during this period shall be the Client’s sole responsibility.

6.4 Delivery dates for the supply of the Goods and/or Services will only always be an estimate, as delays may occur beyond TS’s control i.e., Third Party Contractors, Force Majeure, etc (including Government imposed lockdowns effecting TS’s suppliers and employees, if a worksite is closed and all tradespeople are required to, self-isolate). Where circumstances are beyond TS’s control, TS does not accept any liability should any loss or damage be incurred by the Client because of a late Delivery, however, TS will at every opportunity liaise with the Client to ensure Delivery does take place, as soon as reasonably possible.

6.5 Notwithstanding clauses 6.2 and 6.4, TS reserves the right to pass on a fair and reasonable charge to the Client, if the Goods need to be stored or delivered again at a later stage, if the Client is unable to take Delivery of the Goods as arranged.

7. RISK TO GOODS

7.1 All risk passes to the Client on Delivery, regardless of whether TS is directed by the Client to leave the Goods and/or a Vehicle outside of TS’s premises for the Client’s collection or to deliver the Goods and/or Vehicle to an unmanned Site. It shall be the Client’s responsibility to ensure the Goods are adequately insured, prior to dispatch and are left at the Client’s sole risk.

7.2 TS is entitled to receive all the insurance proceeds payable for the Goods should any Goods be damaged or destroyed after Delivery has happened if title to the Goods has not been passed to the Client. Although the preparation of these terms and conditions is done so by TS, TS shall still be entitled, without prejudice to any other of its rights or remedies under these terms and conditions to use this Contract (including invoices, consignment notes or delivery dockets) with the Client, as prima facie evidence, if an insurance claim is made and thereby no further investigations ought not to be necessary.

7.3 Notwithstanding clause 7.1 any Vehicle or any other Client items are at all times stored and repaired at the Client’s sole risk and it is the Client’s responsibility to ensure their Vehicle or items are adequately insured, against accident, damage, theft, fire and including any other standard risk covered by such insurance), whilst the Vehicle or items are stored at TS’s premises.

7.4 The Client acknowledges and accepts that:

(a) If temporary repairs are performed by TS:

(i) TS offers no guarantee against the reoccurrence of the initial fault, or any further damage caused; and

(ii) The Client will be advised immediately of the fault, with an estimate for the full repair required; and

(iii) TS only accepts responsibility for the Goods that it replaces, no liability is accepted in respect of any previous parts or services supplied by any other third party that subsequently fail after TS has conducted its temporary repair as requested and it is later discovered that the previous parts or services were the actual source of the failure.

(b) TS will not be held liable for the repair of any pre-existing conditions, defects or damage to the equipment/property being sandblasted that is only discovered after the blasting process.

7.5 The Client acknowledges and accepts that Goods supplied may:

(a) Paint products may present variations in shade and colour, which may fade or discolour over time, which is beyond TS’s control, however, match batching supplies and/or where new Goods are used to match existing surfaces, every effort will be made to reduce any variations wherever possible. TS shall not accept liability, in any way whatsoever where such variations occur; and

(b) Other than a Force Majeure event, if the Services are delayed for more than a 3-month period by the Client, once a job has commenced, the Client agrees to settle all monies owed with TS for completed stages and/or Goods purchased up to the date in which the delay started. TS shall have the right to requote the balance of Services to be performed, if the cost to TS in performing such Services increases due to any increase, or the introduction by a statutory or other authority of a tax, duty, charge, levy, or legislation then the amount of the increase is to be treated as a variation and clause 5 shall apply.; and

(c) All Goods supplied by TS with product maintenance instructions are important to follow, as failure to comply with such maintenance instructions may result in any applicable warranty (if any) becoming void.

7.6 TS will not accept responsibility for:

(a) Any loss of or damage to the Client’s Vehicle, its accessories or valuables or other items left in the Client’s Vehicle while being repaired or operated in connection with the authorised Services, unless caused by the negligence of TS, or TS’s employees;

(b) Claims made where colour fade occurs due to:

(i) Mark or stain if exposed to certain substances such as chemicals, solvents or oils; or

(ii) Damaged or disfigured by impact or scratching; and

(c) Where TS’s recommendations are not followed as to the number of coats of paint required to obtain a quality final finish which results in the condition of the finished Services being less than perfect due to the Client choosing to accept a reduced Price based on fewer coats of paint; or

(d) Any loss or damage caused by other tradesmen during or after the completion of the Services (including, but not limited to, finished surfaces) and should the Client instruct TS to rectify any damage caused by any other tradesman, this will become a variation to the original quotation/estimate and will be charged at TS’s normal hourly rate; or

(e) Delays caused by any other third-party suppliers that impact on the provision of the Services by TS.

8. DEFECTIVE GOODS/SERVICES

8.1 The Client agrees to examine the usable Goods (Services on completion) on Delivery and shall satisfy itself that they conform with the quotation, description, purchase order or any other document applicable to this Contract, that the Goods are of merchantable quality, fit for purpose and in a useable condition.

8.2 If the Client discovers a defect in the quality, or a shortage in the quantity of the Goods, or a failure to comply with TS’s quote and these terms and conditions, they must immediately notify TS of that defect.

8.3 The Consumer Guarantees Act 1993, the Fair-Trading Act 1986 and other statutes may imply warranties or conditions or impose obligations upon TS 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 TS, TS’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. For avoidance of doubt, where the Client acquires, or holds themselves out as acquiring, the Goods and/or Services for business purposes, the Consumer Guarantees Act 1993 does not apply and as defined in clause 19.3.

8.4 Subject to clause 8.3 and to the extent permitted by law, TS’s liability in any case of any defect or fault, or otherwise under this Contract, shall be limited to:

(a) The value of the total amount invoiced to the Client; or

(b) TS repairing or replacing the Goods in relation to the defective or faulty Goods and/or Services for which such liability arises. TS shall have no liability or responsibility for any indirect or consequential injury, loss, damage, or expense whatsoever and howsoever.

9. WARRANTIES

9.1 Workmanship shall mean the substrate surface preparation and paint or coating system application in accordance with the specification provided by the Client. Where TS believes there is a problem with the substrate (including welds, bolts, fixings or any previously applied coating such as galvanising) TS will notify the Client so that the Client may remedy the substrate prior to paint or coating system application. For the avoidance of doubt, Workmanship does not include the paint or coating system material itself.

9.2 Workmanship shall be warranted for a period of 12 months, or longer if agreed by this Contract. The Client shall inform TS if any warranties are required more than 23 months prior to the issue of a quotation by TS. For the avoidance of doubt, TS will not warrant the performance of paint or coating system materials to any extent beyond any warranty provided to TS or the Client by the paint or coating system manufacturer.

9.3 Any expressed warranty offered by TS regarding any Goods or Services will be clearly detailed in the Warranty Document, which will be provided at the completion of the Services.

9.4 Only a manufacturer’s warranty will apply (if any), where TS has not actually manufactured the Goods. TS will not be liable in any way or be required to meet any obligation given under a manufacturer’s warranty. In the event of a claim, the Client must deal directly with the manufacturer.

10. TITLE

10.1 Title in the Goods and/or Services pass to the Client when payment for those Goods and/or Services (together with any additional interest or charges as set out in these terms of Trade) have been made in full by way of cleared funds and the Client’s obligations have been fulfilled.

10.2 Until such time as title passes to the Client:

(a) All Goods are held on trust by the Client in their capacity as “bailee” for TS and upon request the Client is required to return all uninstalled Goods to TS where payment has not been affected;

(b) The Client agrees and gives permission to TS to access any property considered to be housing the Goods and take back possession of them, without TS being liable for any loss or damage caused to the Client;

(c) If any Goods are lost, damaged, or destroyed, the Client acknowledges and agrees to indemnify TS by way of the proceeds of any insurance claim as per clause 7.2;

(d) If possession of the Goods passes to another by way of sale or the Client does anything to the Goods which changes its form, then the Client as per clause 10.2(a) must hold such funds from this transaction on trust for TS, and make payment immediately upon demand

(e) At no time shall the Client be entitled to use the Goods as a form of security (including but not limited to, executing a charge or lien over the Goods when ownership of the Goods has not taken place).

11. PERSONAL PROPERTY SECURITIES ACT 1999 (“PPSA”)

11.1 The Client will provide such information and do such acts and execute such further documents as in the opinion of TS may be necessary or desirable to enable TS to perfect under the PPSA the security interest created by these terms and conditions.

11.2 TS may do all the things which it thinks desirable to remedy any default by the Client or otherwise protect all Goods or the security interest created by these terms and conditions.

11.3 The Client irrevocably appoints TS to be the Client’s attorney to do anything which TS agrees to do under these terms and conditions and anything which the attorney thinks desirable to protect TS’ interests under these terms and conditions and the Client ratifies anything done by an attorney under this clause. The Client agrees sections 114(1)(a), 133 and 134 of the PPSA shall not apply to these terms or the security under these terms and conditions.

11.4 The Client waives the Client’s right to receive a copy of the verification statement confirming registration of a financing statement or a financing change statement relating to the security interest created by these terms and conditions.

11.5 The Client agrees that none of the Client’s rights as debtor under sections 116, 119, 120(2), 121, 125, 126, 127, 129,131 and 132 of the PPSA shall apply to these terms and conditions.

11.6 The Client also agrees that where the Client has rights in addition to those in Part 9 of the PPSA, those rights will continue to apply.

11.7 The Client must not change the Client’s name without first notifying TS of the new name not less than 7 Business Days before the change takes effect.

11.8 The Client must not allow or permit the creation of a lien over any of the Goods.

12. SECURITY AND CHARGE

12.1 The Client acknowledges and accepts that by accepting these terms and conditions, it charges all its rights, title, and interest (whether joint or several) in any land, realty, or other assets capable of being charged (including, but not limited to, the payment of any money), 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.

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

12.3 The Client irrevocably appoints TS and each director of TS 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. DEFAULT

13.1 In any event, TS reserves the right to charge the Client interest in respect of the late payment of any sums due under this Contract, at the rate being two and a half percent (2.5%) per calendar month (interest shall accrue daily and will compound monthly), from the due date until receipt of payment, and prior, to any judgement being awarded by a court of law.

13.2 For the sake of clarity, TS has the right to suspend or bring the whole Contract to an end, or parts thereof, or any other contract or contracts with the Client, in addition to its other remedies, upon the happening of any of the following events of default:

(a) Where monies owed by the Client to TS remain outstanding; or

(b) If the Client breaches, or fails to comply or repudiates, any obligation under this Contract or any other subsequent contract with TS; or

(d) Any Goods seized by any other creditor of the Client or any other creditor intimates that it intends to seize the Goods; or

(e) Any Goods in the possession of the Client are materially damaged while any sum due from the Client to TS remains unpaid; or

(f) The Client dies, becomes insolvent or subject to bankruptcy laws, calls a meeting of creditors, or if a company – enters into an arrangement with creditors or makes an assignment/compromise for the benefit of its creditors, or receivers, managers, liquidators (provisional or otherwise), administrators or any similar party is appointed in respect of the Client (or any asset of the Client), has any winding up petition presented against, or ceases to carry on business; or

(g) If the Client ceases or threatens to cease carrying on business; or

(h) if the ownership or effective control of the Client is transferred, or the nature of the Client’s business is materially altered.

13.3 Whether this Contract is ended by mutual agreement or due to any breach by the Client, all monies owed by the Client (including any interest or costs due) to TS shall become immediately due and payable. Without limiting the effect of this clause 13.3 it shall survive the end of this Contract, and any other terms and conditions which by their nature are intended to survive.

13.4 Where any event of default occurs, TS may appoint a receiver in respect of all Goods (including their proceeds) supplied to the Client and any such receiver may take possession of the Goods and sell them and otherwise exercise all rights and powers conferred on a receiver by law.

13.5 Notwithstanding clause 13.1, it is further agreed that if the Client owes TS any money, the Client agrees to reimburse TS all costs and expenses suffered by TS in their attempt to recover all overdue monies owed to TS, (which may include charges incurred by TS from their banking institute for dishonours or chargebacks, legal costs on a solicitor and own client basis, inhouse admin fees or any fees charged during the debt recovery process, if a debt is passed to a recognised Debt Collection Recovery Agency).

14. CANCELLATION

14.1 By TS:

(a) At any time before the Services are carried out upon provided the Client 7 Business Days’ notice in writing; and

(b) TS agrees to refund the Client any funds paid by the Client in respect of the Goods or Services, less any amounts owing to TS for any Goods purchased on the Client’s behalf where credits or refunds cannot be obtained from TS’s third- party suppliers; and

(c) TS will not be liable to the Client for any loss or damage the Client suffers because TS has relied on its rights covered in this clause.

14.2 By the Client:

(a) Prior to Delivery of the Goods and/or Services, by giving no less than 7 Business Days written notice, the Client remains liable for any costs incurred by TS (including, but not limited to, loss of profit) up to the time of cancellation; or

(b) Where the Client cancels an order that has commenced:

(i) The initial notification may be by telephone but must be confirmed in writing or email within 7 Business Days; and

(ii) The Client shall be invoiced for all work completed up until the date of cancellation. Any deposit paid prior to the commencement of the Services will be forfeited in lieu of monies due, however, the Client remains liable for any monies due over and above any deposit paid; or

(iii) At TS’s discretion, where failure of clause 14.2(b)(i) occurs, the Client may be required to pay the full quoted Price.

15. PRIVACY POLICY

15.1 In accordance with the Privacy Act 2020 and full disclosure, TS has advised the Client that Personal Information will be collected, handled, used, and stored about the Client during the business relationship and thereby, the Client grants consent to TS to proceed with any inquiries with any third party necessary for the following purposes:

(a) Assessing the Client’s credit risk (if any);

(b) Administering the Client orders;

(c) Receiving information from one or more credit reference agencies, relating to the credit record and repayment history of the Client;

(d) Disclosing credit-related information to, and using the credit Services of, one or more credit reference agencies, on a continuing basis at any time and entirely at its discretion concerning the Client’s creditworthiness.

15.2 For the avoidance of doubt, all authorities given above are continuing authorities to apply throughout the duration of the term of TS and Client’s trading relationship.

15.3 The Client, if an individual, has a right of access to Personal Information about the Client held by TS and may request correction of the information.

15.4 If any Client believes their privacy has been breached in any way (view our Privacy Policy), then a privacy complaint can be made to TS’s Privacy Officer via email at: info@taurangasandblasting.co.nz or post to: The Privacy Officer, Gaelic Holdings Limited T/A Tauranga Sandblasting, 35 Aviation Avenue, MOUNT MAUNGANUI 3116. TS will respond to that complaint within 5 Business Days of its receipt, should more time be needed to investigate the complaint then TS will undertake to decide on a resolution as to the complaint within 20 Business Days of the original date of receipt. If the Client is not satisfied with the resolution provided by TS, the Client can make a complaint to the Privacy Commissioner at www.privacy.org.nz.

15.5 For the purposes of this clause 15, Personal Information has the meaning given to it in the Privacy Act 2020.

16. ASSIGNMENT

16.1 Neither party shall assign, sub-license or otherwise transfer this Contract or any part of it to any other person, without first obtaining written consent (hardcopy or email) of the other party. Such consents shall not be unreasonably withheld or delayed.

16.2 Unless specifically stated otherwise, in any consent to an assignment (as covered in clause 16.1), no assignment shall release or discharge the assignor from any liability or obligation under this Contract.

16.3 Furthermore, it is agreed between the parties that the Client cannot give any instructions or redirect the performance of the Services of any of TS’s subcontractors or third-party suppliers that are engaged to carry out any part of the Services, without firstly obtaining written consent from TS.

17. FORCE MAJEURE

17.1 Both parties are freed from any liability or obligations, if a Force Majeure event occurs:

(a) The obligations of a party under this Contract will be suspended to the extent that it is wholly or partially precluded from complying with its obligations under this Contract by Force Majeure; and

(b) A party affected by Force Majeure must notify the other party as soon as practicable of the Force Majeure and the extent to which that party is unable to comply with its obligations; and

(c) If a failure or delay in performance exceeds 60 Business Days, either party may immediately terminate this Contract by written notice to the other party.

17.2 Nothing in clause 17.1 shall excuse payment of any amount owing due or which becomes due under the terms of this Contract.

18. RIGHT TO EXECUTE A LIEN

18.1 Notwithstanding any other remedies at law that TS is entitled, it does not prevent TS, where the Client has left any Vehicle or item with TS for repair, modification, exchange or for TS to perform any other Services in relation to the Vehicle or item and TS has not received or been tendered the whole of the Price, or the payment has been dishonoured, to execute:

(a) A right to a lien in respect of the Vehicle or item while TS is in possession of the Vehicle or item; and

(b) Upon servicing the Client with a notice (section 342 of the Contract and Commercial Law Act 2017) to remedy within 10 days; and

(c) Failure to comply with 18.1(b), TS shall then have a right to sell the Vehicle or item in accordance with the provisions of section 341 of the Contract and Commercial Law Act 2017 (2017 No 5) by auction or private treaty.

18.2 The proceeds of a sale the Vehicle or item under this clause 18 will be applied in the following order:

(a) In payment of the expenses of the advertising and sale; and

(b) In payment of the amount due under the lien; and

(c) The surplus (if any) will, as soon as practicable after the completion of the sale, be paid to the Client, the person entitled to it); or

(d) If any monies remain owing to TS after such disposal, TS may at its discretion continue to pursue recovery of such monies from the Client.

18.3 The lien of TS shall continue despite the commencement of proceedings, or judgement for the Price having been obtained.

19. MISCELLANEOUS

19.1 Dispute: any dispute or difference in connection with, or arising out of, this Contract shall be dealt with by the concerning party giving the other party written notice, clearly identifying, and providing full details of the dispute. Failure to resolve the dispute within 10 Business Days (or whatsoever timeframe agreed) by way of either formal discussions and/or mediation will result in the dispute now being referred to a sole arbitrator and the provisions of the Arbitration Act shall apply.

19.2 Jurisdiction:

(a) If any term or obligation of this Contract is at any time held by any jurisdiction to be negated, invalid or unenforceable, then it shall be treated as changed or reduced, only to the extent minimally necessary to bring it within the laws of that jurisdiction and to prevent it from being void and it shall be binding in that changed or reduced form. Subject to that, each provision shall be interpreted as severable and shall not in any way affect any other provision covered in these terms and conditions; and

(b) The legality, construction and performance of this Contract shall be governed by the laws of New Zealand. The Client agrees that any dispute arising from the Contract between the two parties that cannot reasonably be resolved by mediation shall then be litigated only, by the jurisdiction of the Tauranga Courts of New Zealand.

19.3 Legislation:

(a) If the Client is acquiring Goods or Services for the purposes of a trade or business, the Client acknowledges that the provisions of section 43 of the Consumer Guarantees Act 1993 (“CGA”) and section 5D of the Fair Trading Act 1986 (“FTA”) do not apply to the supply of the Goods or Services by TS to the Client, nor will the provisions of the FTA apply to either parties conduct or representations if unintentional: section 9 (misleading conduct), section 12A (unsubstantiated representations) or section 13 (false or misleading representations); and

(b) If the Client is acquiring the Goods or Services in the capacity as a “consumer” as defined in the Consumer Guarantees Act 1993 and the Client is not in trade, nothing in the Contract will exclude or limit the Client’s rights or remedies under the Act; and

(c) Gaelic Holdings Limited trading as Tauranga Sandblasting agree to comply with all governing laws (including the provisions of all statutes, regulations, and bylaws of Government, local and other public authorities) of New Zealand applicable to the supply of their Goods or Services to ensure compliancy is met and that all applicable safety regulations and standards are followed during the provision of the Services, prior to release of the Vehicle to the Client/end user; and

(d) If the performance of the work to be carried out by TS is subject to any form of certification, this shall be done so by a certified party, being either TS or an engaged third-party independent contractor certified in their field of expertise and all certification documentation relevant to the Client’s Vehicle will be provided at the time of delivery to the Client and/or pick-up. The Client agrees to indemnify TS against any costs incurred in respect of any certification required by law; and

(e) If the Client is ever in breach of clause 19.3, then the Client accepts and agrees to indemnify TS against all claims, liability, losses, or costs imposed or incurred by TS, because of such a breach.

19.4 Limitation of Liability: TS WILL NOT BE LIABLE FOR ANY LOSS CAUSED BY A FAILURE BY THE CLIENT TO COMPLY WITH THE CLIENT’S OBLIGATIONS UNDER THIS CONTRACT. FURTHER, TS’S TOTAL LIABILITY WILL NOT, UNDER ANY CIRCUMSTANCES, EXCEED THE PRICE OF THE GOODS OR SERVICES SUPPLIED OR PERFORMED, PURSUANT TO THIS CONTRACT.

19.5 Notices: Where a notice is required to be served under this Contract by either party, it must be issued in writing and delivered either by email, registered post (to the recipient’s address for service as provided under this Contract) or given personally to the concerned other party. Any notice that is served subject to this clause 19.5 shall be deemed to have been served, unless stated otherwise, at the time when the notice would have typically been delivered.

19.6 TS reserves the right from time to time to amend their terms and conditions, but then for disclosure purposes any amendments shall always be provided in writing to the Client and/or notified by email that the updated terms and conditions are posted and ready for viewing on TS’s website. The amended terms and conditions take effect for any new contracts from when the Client accepts the updated terms and conditions and/or from when the Client asks TS to deliver/supply additional Goods and/or Services.

20. DEFINITIONS AND INTERPRETATION

20. 1 In this Contract, unless the context otherwise requires capitalised terms have the meaning set out below:

(a) “Business Days” means a day on which banks are open for business in New Zealand other than a Saturday, Sunday, or public holiday.

(b) “Client” means the person/s, entities (including but not limited to, partnerships and/or a trust and where applicable shall include the Client’s executors, administrators, successors and permitted assigns) or any person with written consent given by the Client to act on the Client’s behalf to request TS to provide Good and Services as specified in any quotation, purchase order or other documentation.

(i) Relating to this Contract;

(ii) Relating to a quotation, order or proposal or its contents;

(iii) Relating to a Client of TS

(iv) Disclosed by either party to the other party on the express basis that such information is confidential; or

(v) Which might reasonably be expected by either party to be confidential in nature.

Provided that, where information relates exclusively to one party, nothing in this Contract will require that party to maintain confidentiality in respect of that information.

(d) “Contract” means this Contract, inclusive of its terms and conditions contained herein, its schedules and annexures or any quotation, proposal, invoice, or document that shall form part thereof and/or is deemed to be supplementary to this Contract.

(e) “Force Majeure” means an event outside the reasonable control of either party, including an act of God, earthquake, adverse weather conditions, flood, storm, fire, explosion, war, rebellion, terrorism, strike, lock-out, industrial action national or global epidemics or pandemic and/or the implementation of regulation, directions, rules or measures being enforced by Governments or embargo, including but not limited to, any Government quarantine restrictions for Goods or individuals.

(f) “Goods” means Goods, parts and/or equipment of any kind that TS provides to the Client as specified in any Contract, quotation, proposal, order, or any other documentation.

(g) “GST” means Goods and Services Tax, as defined within the Goods and Services Tax Act 1985.

(h) “Personal Information” means information about an identifiable individual by ways of their name, address, D.O.B., occupation, driver’s license details, electronic contact type details, such as, email, IP Address, social media such as: Facebook, or Twitter, or next of kin and any other contact information (if applicable) and were deemed relevant shall include any previous credit applications or credit reporting status. By the nature of such information, it shall always be considered Confidential Information.

(i) “Price” means the Price due under this Contract for the supply of Goods and/or Services as detailed in any quote or proposal or invoice and duly accepted by the Client and (if applicable) shall include any GST payable.

(j) “Services” means all Services (including any documentation, advice, consultancy, or recommendations regarding sandblasting or sodablasting and/or industrial coatings, panel beating, refurbishing farm machinery & equipment and all heavy equipment (truck and trailers) and Vehicles (personal or commercial, including lifestyle vehicles and caravans and/or marine vessels), supplied by TS to the Client, and are as described on the invoices, quotation, authorisation form or any other forms as provided by TS to the Client.

(k) “TS” means GAELIC HOLDINGS LIMITED trading as TAURANGA SANDBLASTING, their successors, and assigns.

(l) “Vehicle” means any road or off -road Vehicle described in any documentation supplied by TS or the Client.

20.2 In this Contract, unless the context requires otherwise:

(a) Headings: Headings to clauses are for convenience only and shall not affect their interpretation;

(b) Joint obligations: If there is more than one person or party to this Contract herein, this Contract shall bind all persons and parties jointly and severally.

(c) Parts of Contract: References to this Contract shall including its clauses, cross references, schedules, appendices or any other document relevant to the Contract;

(d) Plurals: Words importing the singular shall include the plural and vice versa and words importing the masculine, feminine and neuter shall include all three;

(e) Price: A reference to dollars or $ is to an amount in New Zealand currency;

(f) Statutory Requirements: A reference to any Act or Regulation shall include subsequent Acts or Regulations in amendment of, or substitution for, the same.

20.3 Neutral Interpretation - nothing in this Contract is to be interpreted against a party solely on the ground that that party put forward this Contract or a relevant part of it.

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