OPTIMUS CONSTRUCTION Terms and Conditions
OPTIMUS CONSTRUCTION LIMITED ("the Company")
TERMS & CONDITIONS (“Contract”)
Effective from 2023
1.1 These conditions shall apply to all orders for goods and/or the services made by the Buyer after the date and time at which these conditions are first delivered or sent to or otherwise brought to the notice of any employee officer or representative of the Buyer or, in the case of posting, on the day following posting to any of the Buyers postal or street addresses. It shall be the Buyer's responsibility to ensure that these conditions are promptly brought to the attention of the appropriate officers of the Buyer and accordingly any order made by the Buyer after the date and time described above in this clause shall be in acceptance of these conditions.
2.1 The Contract Price shall be as set out in the quote provided by the Company to the Buyer.
2.2 The estimated Contract Price shall be valid for 30 days from the date of the quote provided by the Company to the Buyer, if accepted in writing within that time.
2.3 The Company shall only be required to comply with regulations, bylaws, codes and standards (if any) specified in this Contract and the Company shall be under no liability whatsoever for any failure to comply with any other regulations, bylaws, codes and standards. In the event of there being any changes in any regulations, bylaws, codes or standards with which the Company is obliged to comply after the date of the Contract or where the Contract arises from a quote, then any additional costs in meeting any such changes shall be to the account of the Buyer.
2.4 Unless noted in this Contract the prices do not include cost of delivery and are exclusive of GST and GST shall be payable on all charges at the rate current at the date of invoicing.
2.5 The Company reserves the right to vary the Contract Price to reflect any increase in the cost of labour or materials outside the Company’s control.
3.1 Subject to any provision to the contrary in this Contract payment (being cash unless otherwise arranged in advance and confirmed in writing by the Company) shall be received on or before the 14th day following the date of the Company's invoice to the Buyer which invoice shall be issued as follows:
1. for 10% of the Contract Price on acceptance of the Company’s quote;
2. from time to time during the term of the Contract between the parties.
3.2 The Buyer shall not be entitled to withhold payment, or to make any deductions from, or setoff against, the Contract Price without prior written consent of the Company.
3.3 Interest at the rate of 10% per annum calculated on a daily basis shall be payable on any monies outstanding under the Contract from the date payment was due until the date payment was received by the Company but without prejudice to the Company's other rights or remedies in respect of the Buyer's default in failing to make payment on the due date.
3.4 Should the Buyer's credit become impaired or be deemed unsatisfactory by the Company the Company may require payment or satisfactory security before commencing construction, manufacture or delivery of any order. The failure to demand such payment or security will not constitute a waiver by the Company of any such rights in the future and no such demand for payment or security shall affect the obligation of the Buyer hereunder.
3.5 Production and work will not commence until receipt of payment of not less than 30/50% of the total account. Unless payment is made by cleared funds, delivery of goods sold on a cash sales basis will not be effected three (3) working days after the receipt of cleared funds.
4 Delivery & Risk
4.1 Delivery shall be made at the place indicated in the Contract or if no place shall be indicated in the Contract, delivery shall be made at the Buyer’s premises or property. If the buyer fails or refuses to accept delivery, or indicates to the Company that it will fail or refuse to accept delivery, then the goods shall be deemed to have been delivered when the Company was willing to deliver them.
4.2 The Company reserves the right to deliver by instalments and each instalment shall be deemed to be a separate contract under the same provisions as the main Contract. Failure by the Company to deliver, or a defective delivery of one or more instalments shall not entitle the Buyer to cancel the Contract.
4.3 The Company may charge storage and transportation expenses, if the buyer fails or refuses to take or accept, or indicates to the Company that it will fail or refuse to take and accept, delivery at the time specified in the Contract, or at any other times as the Company is able to deliver the goods.
4.4 Delivery of 10% more or less in the quantity of the goods ordered by the buyer shall constitute performance of any Contract, the amount under or over supplied to be deducted or charged for pro-rata.
4.5 Proof of delivery information will not be provided beyond sixty (60) days from date of invoicing.
4.6 The Company may, by written agreement with the Buyer, defer the date of delivery of goods ordered by the Buyer PROVIDED HOWEVER that the prices payable by the Buyer shall be the Company's prices current as at the date of actual delivery. In the event the Buyer defers delivery of products for any reason, and such deferment incurs storage and insurance costs, all such charges will be the liability of the Buyer.
5.1 If any time for delivery or completion of works shall be stated in the Contract, such time shall be approximate only and shall not be deemed to be of the essence of the Contract.
5.2 The Company shall not be liable for failure to deliver or for any delay in delivery where such failure or delay is occasioned directly or indirectly by any cause whatsoever, beyond the Company's reasonable control.
5.3 If the manufacture, supply or delivery of goods or completion of works is delayed by reason of or as a result of any act, omission, default or request by or on behalf of the Buyer, the Company may, without prejudice to its other rights and remedies, require payment by the Buyer of such portion of the Contract Price as represents the extent to which the Company has performed the Contract or carried out work required by the Contract together with any expenses or additional cost incurred by the Company as a result of such a delay. In the event of such a delay continuing beyond a reasonable time, the Company may, without prejudice to its other remedies, terminate the contract.
On every occasion on which the Buyer is given possession of any good or goods prior to payment being made for the same the Buyer acknowledges that the following conditions apply:
6.1 Title to the good or goods shall not pass to the Buyer but title shall remain vested in the Company until payment for the goods has been made in full.
6.2 Risk in goods shall pass to the Buyer when the goods are delivered to the Buyer's premises.
6.3 Until payment for goods is made in full to the Company by the Buyer, the following terms shall respectively apply to all goods:
6.3.1 The Buyer shall be deemed to be in a fiduciary capacity as bailee of the Company in respect to the goods supplied by The Company and;
6.3.2 The Buyer if required by the Company will store the good or goods on such terms as the Company may stipulate. If the Buyer sells or otherwise disposes of any goods for which payment has not been made in full, the Buyer shall be deemed to have done so as agent for the Company and shall prior to accounting to the Company for any proceeds credit such proceeds, to a separate bank account identified as being for the Company.
6.3.3 If the Buyer makes default in payment for any goods, although goods may be in the Buyer's possession, the Buyer hereby irrevocably gives the Company, its agents and servants leave and licence to enter on and into any property occupied by the Buyer without notice in order to inspect, search for or remove goods not paid for and the Company shall not be liable to the Buyer or any third party for the exercise of its rights under this clause.
6.3.4 Where the Company exercises its rights under this agreement in respect of the resale storage or repossession of goods supplied (including legal costs as between solicitor and client) the Buyer will immediately indemnify the Company for all such costs.
6.3.5 All moneys received by the Company may be allocated by the Company against moneys owed by the Buyer as the Company wishes at its sole discretion.
6.4 Personal Properties Securities Act 1999 ("PPSA")
6.4.1 This clause constitutes a security interest within the meaning of the PPSA , and the Company may in its absolute discretion, register this security interest under the PPSA or do any act or thing required to perfect its security interest.
6.4.2 The Buyer will provide all information and do all things required by the Company for the purposes of the PPSA, including (but not limited to) full identification details.
6.4.3 The Buyer waives any rights to receive a copy of a verification statement confirming registration of a financing statement or financing change statement relating to the security interest under this contract.
6.4.4 The Buyer agrees that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to this contract, or the security under this contract, and waives the Buyer's rights under sections, 121, 125, 129, 131 and 132 of the PPSA.
7.1 The Company warrants that it will repair or make good any defects in work undertaken or goods supplied if written notice of the claim is received by the Company within 180 days from the date the work was completed or the goods were delivered. No claim shall be accepted under such warranty if any attempt to repair is made by the Buyer, or if the defective work or goods have been modified or incorrectly stored, maintained or used. If the Company elects to repair or replace any defective work or goods, such work shall be undertaken at such place as the Company may be reasonably specify. If the Company fails to perform its warranty obligations under this clause 7, liability for such failure shall be subject to the limitation contained in clause 8.2. Nothing in this clause shall limit the provisions of the Consumer Guarantees Act 1993 if such statute is applicable.
To the maximum extent permitted by law:
8.1 The Company shall not be liable for any loss of any kind whatsoever suffered by the Buyer as a result of any breach of any of the Company's obligations under the Contract including any cancellation of the Contract or any negligence on the part of the Company, its servants, agents or contractors nor shall the Company be liable for any loss, damage or injury caused to the Buyers, servants, agents, contractors, customers, visitors, tenants, trespassers or other persons. The Buyer shall indemnify the Company against any claim by any such persons.
8.2 Notwithstanding anything else in the Contract, the liability of the Company, arising from breach of any of the Company's obligations under the Contract, from any cancellation of the Contract or from negligence on the part of the Company, its servants, agents, or contractors shall be limited to damages which shall not in total exceed the Contract price.
8.3 If in any court action, or arbitration any goods manufactured by the Company for the Buyer be found not to be reasonably equal to sample or specification or should any workmanship carried out by the Company on goods belonging to the Buyer be found not to meet the required standard then if the goods as the case may be are nevertheless usable by the Buyer for normal business purposes the court action, or arbitration shall award damages to the Buyer which shall not in total exceed the Contract price. Should however any such goods be found not to be usable the court or arbitrator may in the case of goods manufactured by the Company order rejection
and a refund of any monies paid on account of the Contract price and in the case of goods upon which work has been carried out by the Company may order payment of any amount paid on account of the Contract price. Upon an order of rejection, the Company will at its own cost remove the goods within a reasonable time after the order. The liability of the Company for defective goods or workmanship shall be limited to the amount assessed in the manner aforesaid and shall not include liability of any consequential indirect or special damages or loss of any kind whatsoever.
8.4 Should any claim be made against the Company by virtue of manufacturing any goods for the Buyer or carrying out any work for the Buyer that the Company is infringing or contributing to the infringement by the Buyer of any patent or trade mark or alleged patent or trade mark or is acting in contravention of any statutory enactment or regulation in relation to the Company's premises or mode of work the Company may at its option thereupon or at any time therefore suspend delivery, cease work and/or terminate the contract and the Buyer shall indemnify the Company against all costs claims damages and expenditure whatsoever incurred by the Company by reason of such infringement or contravention.
9.1 The Company shall not be required to match any existing materials or shade of colour but will make every reasonable effort to match same where specified and is available. In no event shall the Company be obliged to make better than a commercial match.
9.2 The Company reserves the right to vary the Contract Price in respect of alterations to specifications of work or goods after the order has been placed.
10 Plans & Designs
10.1 Preparation by the Company of plans and/or designs requested by the Buyer remain the sole property of the Company until such time as they are paid for in full by the Buyer. The Buyer acknowledges that the Company shall retain the right to utilise the plans in relation to the provision of goods and/or services to any other customer or client of the Company.
10.2 The Buyer acknowledges that it shall be responsible for obtaining all permits and consents necessary in relation to any works being undertaken by the Company in relation to goods or services provided to the Buyer and work by the Company.
11.1 No order once accepted by the Company may be cancelled or varied by the Buyer except with the written agreement of the Company.
12 Default & Indemnity
12.1 If the Buyer defaults in the payment of any monies owed to the Company, whether under the Contract or otherwise, or if the Buyer is in default in the performance of its obligations under the Contract or otherwise or (in the Company's opinion) be insolvent the Company, without prejudice to its other rights and remedies, may suspend or terminate the Contract, and payment for the goods delivered and work performed up to the date of such suspension or termination and any other monies owed to the company shall immediately become due and payable.
12.2 In any of the events specified in clause 12.1 the Company may, as the agent of the Buyer (and without notice), enter the premises where the goods are situated and take possession of and remove them without responsibility for any damage caused, and the Company may resell any or all of the goods and apply the proceeds in or towards payment of the Contract price and all other monies owing by the Buyer. All expenses incurred by the Company as a result of such action shall be payable by the Buyer on demand. Any suspension of the contract by the Company shall not prevent its termination of the contract during the period of suspension.
13.1 These conditions shall, together with any other provisions included in writing in the quote (where the Contract arises from a quote by the Company) or the items contained in the Company's confirmation of order (where the contract arises from any order by the Buyer), be the conditions of the Contract. Subject to any overriding provisions of any statue or regulation all other conditions, warranties, descriptions and representations are expressly excluded.
13.2 In the event of any conflict between an order or other document submitted by the Buyer on the one hand, and the Company's confirmation of order and /or these conditions and /or any other document issued by the Company on the other hand the provisions of the Company's confirmation of order and/or these conditions and/or such other documentation issued by the Company shall prevail.
13.3 In the event of any conflict between these conditions on the one hand and the Company's confirmation of order and/or any such document issued by the Company on the other hand, the provisions of these conditions shall prevail except in the case of a clear and intentional written variation in the confirmation of order or other such document.
13.4 No agent or representative of the Company is authorised to make any representations, warranties, conditions or agreements not expressly confirmed in writing by an authorised officer of the Company and the Company is not in anyway bound by any such unauthorised statements nor can any such statements be taken to form a contract collateral to the contract.
14 Waiver & Assignment
14.1 All the original rights, powers, exemptions and remedies of the Company shall remain in full force notwithstanding any neglect, tolerance or delay in the enforcement thereof. The Company shall not be deemed to have waived any condition unless such a waiver shall be in writing under signature of the Company and any such Waiver, unless the contrary shall be stated, shall apply to and operate only in a particular transaction, dealing or matter. The Buyer may not assign all or any of its rights or obligations under the contract with prior written consent of the Company.
15. Consumer Guarantees Act 1993
15.1 It is agreed and acknowledged by the Buyer that where the goods or work supplied under this Contract are for the purposes of a business, the provisions of the Consumer Guarantees Act 1993 shall not apply.
16. Construction Contract Act 2022
16.1 The Buyer hereby expressly acknowledges that:
(a) The Company has the right to suspend work within five (5) working days of written notice of its intent to do so if a payment claim is served on the Buyer, and:
i. the payment is not paid in full by the due date for payment and no payment schedule has been given by the Buyer; or
ii. a scheduled amount stated in a payment schedule issued by the Buyer in relation to the payment claim is not paid in full by the due date for its payment; or
iii. the Buyer has not complied with an adjudicator’s notice that the Buyer must pay an amount to the Company by a particular date; and
iv. the Company has given written notice to the Buyer of its intention to suspend the carrying out of construction work under the construction contract.
(b) If the Company suspends work, it:
i. is not in breach of contract; and
ii. is not liable for any loss or damage whatsoever suffered, or alleged to be suffered, by the Buyer or by any person claiming through the Buyer; and
iii. is entitled to an extension of time to complete the contract; and
iv. keeps its rights under the contract including the right to terminate the contract; and may at any time lift the suspension, even if the amount has not been paid or an adjudicator’s determination has not been complied with.
(c) If the Company exercises the right to suspend work, the exercise of that right does not:
i. affect any rights that would otherwise have been available to the Company under the Contractual Remedies Act 1979; or
ii. enable the Buyer to exercise any rights that may otherwise have been available to the Buyer under that Act as a direct consequence of the Company suspending work under this provision.
17.1 These conditions of sale are entered into on behalf of and are intended to bind and enure to the benefit of the Company and the Company's successors and assigns.
17.2 In these conditions unless the context otherwise requires:
"the Company" means Optimus Construction Limited; "the Buyer" means the person, firm or company buying the goods from the Company; "goods" means the products being purchased by the Buyer from the Company; "the Contract" means the contract between the Company and the Buyer for the purchased goods/services; "the date of the Contract" means the date set out below:
where the Contract arises from a quote given by the Company, the date of acceptance of the order by the Company; or where the Contract arises from a quote given by the Company, the date upon which written notification of acceptance of the quotation is received by the Company; "the Contract Price" means the price of the goods/services as agreed between the Buyer and the Company set out in the attached quote, subject to any variation in accordance with clauses 1,2 or 3; "person" includes a corporation, association, firm, company,
partnership or individual.
The Buyer confirms its acceptance of these Terms and Conditions on confirmation of acceptance of the quote provided by the Company to the Buyer, and agrees that they apply to all contracts with the Company for the supply of goods and services by the
Company to the Buyer.