Terms and conditions of trade of Carus Group Limited
1. Definitions
- In these terms and conditions, unless inconsistent with the context:
- Completion of the Works means the date on which Carus advises the Customer that the Works have been completed in accordance with clause 5;
- Customer means the Customer specified in the Quotation or any person acting on behalf of or with the implied authority of the Customer;
- Carus means Carus Group Limited (Company Number 5018840), its staff, agents and other people acting on its authority;
- Guarantor means the person who has agreed to be responsible as a principal debtor for the debts due by the Customer to Carus under these terms and conditions and/or the Quotation;
- Premises means the premises where the Works are to be carried out and as described in the Quotation;
- Price means the price payable to Carus by the Customer for the Works, as set out in the Quotation and subject to any variation made under clause 8;
- Project Manager means the project manager appointed by Carus to project manage the Works;
- Quotation means the quotation or estimate provided by Carus to the Customer from time to time;
- Subcontractor means a tradesperson contracted by Carus to complete the Works;
- Works means the works and services to be undertaken by Carus to the Premises in accordance with the Quotation.
2. Acceptance
- The Customer is deemed to have accepted these terms and conditions when the Customer signs or confirms the Quotation. These terms and conditions may only be altered or amended by written agreement between Carus and the Customer;
- The Customer expressly acknowledges that Carus undertakes the Works on these terms and conditions only and not on the terms stated on any other form given to Carus by the Customer.
- Where more than one person signs these terms and conditions as or on behalf of the Customer, each person will be jointly and individually liable for the debts of the Customer to Carus.
3. Price & Payment
- The Price is exclusive of Goods and Services Tax (GST) and other taxes or duties applicable and is subject to adjustment as provided for in these terms and conditions.
- Payment may be made by cash, cheque, bank cheque, direct credit, or by any other means agreed to by Carus.
- Carus will be entitled to progress payments in accordance with the Construction Contracts Act 2002. For the avoidance of doubt, progress payments will include the value of materials delivered to the Customer but not installed or applied. The Customer will pay the progress payment by the 20th of the month following the date of the invoice.
4. Risk, Insurance and Ownership of Goods
- The Works, the Premises and its contents and any existing structure of which the Premises forms part, will be at the sole risk of the Customer.
- Carus will maintain, or will procure a Subcontractor to maintain, public liability insurance for not less than $1,000,000.00.
5. Procedure on Completion of the Works
- Carus will notify the Customer in writing when the Works have been completed or, if there is a programme of Works, when each item of the Works in the programme have been completed.
6. Access to the Premises
- The Customer will ensure Carus is provided with access to the Premises as set out in the project timeframe agreed with the Customer.
- If any part of the Premises is enclosed or locked up by Carus while work is not in progress the Customer will not enter such part except at reasonable times by prior arrangement with Carus.
- From commencement to Completion of the Works the Customer will provide power and lighting to the Premises at its cost, sufficient to enable the Works to be completed.
- The Customer will remove any furniture, furnishings or equipment from the Premises as required by Carus and agrees that Carus is not liable for any damage caused to those items if the Customer fails to do so.
- The Customer will direct all queries and communication regarding the Works to the Project Manager. The Customer will not liaise directly with a Subcontractor regarding the Works.
7. Substitutions
- If any material, arrangement or process set out in the Works is or becomes unprocurable or prohibited by law, Carus may substitute another reasonably equivalent material, arrangement or process, with appropriate adjustment of the Price.
- All such substitutions under clause 7.1 will be subject to the prior written approval of the Customer. Approval by the Customer will not be unreasonably withheld.
8. Variations
- Carus will make reasonable variations to the Works which may be requested in writing by the Customer provided that any variation of the Price is agreed in writing prior to commencing the variation works.
- For the avoidance of doubt, the Customer may not make a variation to the Works direct with a Subcontractor.
9. Defects and Omissions
- Subject to clause 10.4, without any undue delay and at Carus’ own cost, Carus will make good all defects to and omissions from the Works which the Customer reports to Carus within three (3) months after Completion of the Works.
10. Limitation of Liability
- Subject to clause 6.4 and clause 10.2 Carus will only be liable to the Customer for direct loss or damage suffered by the Customer as a result of a breach by Carus of its obligations under these terms and conditions.
- In the event of any dispute arising out of these terms and conditions by Carus the remedies of the Customer will be limited to damages. Carus’ maximum liability to the Customer under these terms and conditions or under any other principle of legal liability in respect of all claims made by the Customer is the Price.
- For the avoidance of doubt the parties acknowledge that any representations made by Carus with respect to the time for completion of all or part of the Works are estimates only and Carus will not be liable to the Customer for any direct or consequential loss or damage suffered by the Customer as a result of the Works not being completed at all or within such timeframe.
- The Customer acknowledges that paint may exhibit variations in shade, colour, texture, surface and finish and may fade or change over time. Carus will use its best endeavours to match paint supplied to existing paint on the Premises in order to minimise variations. Notwithstanding any other provision in these terms and conditions Carus will not be liable to the Customer in any way where such variations occur.
11. Default and Consequences of Default
- Carus may charge interest on overdue invoices at a rate of twenty percent (20%) per annum calculated daily from the date when payment becomes due until the actual date of payment and such interest will accrue at the stipulated rate after as well as before any judgement.
- Without prejudice to any other remedies Carus may have, if at any time the Customer is in breach of any obligation and has not remedied the breach within seven (7) calendar days after receiving notice of the breach then Carus may suspend or terminate the provision of the Works and any of its other obligations under these terms and conditions. Carus will not be liable to the Customer for any loss or damage which the Customer suffers because Carus exercises its rights under this clause.
- The Customer will be responsible for Carus’ costs in enforcing any provision of these terms and conditions against the Customer on a solicitor/client basis.
12. Dispute Resolution
- If the parties are unable to resolve any dispute under these terms and conditions, the dispute will be submitted to the arbitration of a single arbitrator agreed on by the parties, or in default of agreement, to be nominated by the president of the New Zealand Law Society PROVIDED HOWEVER that Carus has the right to refer any dispute to the Disputes Tribunal for determination in which case the total amount in respect of which an order of the Tribunal is sought will not exceed $7,500.00.
- The procedures prescribed in this clause will not prevent Carus from taking proceedings for the recovery of the Price or other monies payable under these terms and conditions or from terminating these terms and conditions under clause 11.2.
13. General
- If any provision in these terms and conditions is held to be invalid, illegal or unenforceable then this will not affect any other provision.
- These terms and conditions constitute the entire agreement between Carus and the Customer in respect of the Works and supersede all prior agreements.
- Any and all implied warranties are expressly excluded.
- No waiver of any of these terms and conditions will be deemed to constitute a waiver of any other term (whether or not similar), nor will such waiver constitute a continuing waiver unless agreed in writing.
- The Works will be undertaken subject to the laws of New Zealand and Carus takes no responsibility for changes in the law that affect the Works.
- Carus will not be liable for any delay or default due to any act of God, earthquake, terrorism, war, strike, lock out, industrial action, flood, storm or other event beyond its reasonable control and will continue to perform its obligations when the delay or default has ceased.
- Carus may license or sub-contract all or any part of its rights and obligations without the Customer’s consent.
14. Guarantee
- In consideration of Carus agreeing to undertake the Works, the Guarantor, as principal debtor, and, if more than one jointly and severally, personally guarantees the obligations of the Customer under these terms and conditions.
- Where the Customer is a company or trust, then in consideration of Carus entering into these terms and conditions, the directors or trustees (as the case may be) of the Customer agree that they will personally guarantee the obligations of the Customer under these terms and conditions including any payment due by the Customer to Carus as the principal debtor.