- “Gartshore” shall mean W Gartshore Limited or Building Remediation Services (BRS), its successors and assigns or any person acting on behalf of and with the authority of W Gartshore Limited or BRS (as determined by the entity entering the agreement that is incorporating these terms and conditions).
- “Customer” shall mean the Customer, Company, partnership or commercial entity (or any person acting on behalf of and with the authority of any of the above) as described on any quotation, work authorisation or other form as provided by Gartshore to the Customer.
- “Guarantor” shall mean that person (or persons) who agrees to be liable for the debts of the Customer on a principal debtor basis.
- “Goods” shall mean all Goods supplied by Gartshore to the Customer (and where the context so permits shall include any supply of Services as hereinafter defined) and includes Goods described on any invoice, quotation, work authorisation or any other forms as provided by Gartshore to the Customer.
- “Services” shall mean all services supplied by Gartshore to the Customer and includes any advice or recommendations (and where the context so permits shall include and supply of Goods as defined above).
- “Price” shall mean the price payable for the Goods as agreed between Gartshore and the Customer in accordance with clause 3 of this contract.
- “Works” shall mean Goods and Services combined.
2.1 These Term and Conditions of Trade shall apply in respect of each Agreement that incorporates these Terms and Conditions of Trade by reference (which may include a tender response or contract). Any instructions received by Gartshore from the Customer for the supply of Works, commencement of the performance of the obligations hereunder and / or the Customer’s acceptance of delivery of Works by Gartshore shall constitute acceptance of the terms of the Agreement provided by Gartshore (including, these Terms and Conditions of Trade, by incorporation). The Agreement (including these Terms and Conditions of Trade by incorporation) may only be amended with the prior written approval of both parties and shall prevail to the extent of any inconsistencies, conflict or misunderstanding with any other document or agreement including but not limited to tender documents, agreements and subcontractor agreements. In the event of any inconsistency, conflict or misunderstanding between the terms of W Gartshore Limited Contract for Works (other than the terms in these Terms and Conditions of Trade) and these Terms and Conditions of Trade, the terms of W Gartshore Limited Contract for Works shall prevail. The Agreement (including these Terms and Conditions of Trade by incorporation) override any Terms and Conditions contained in any document provided by, or on behalf of, the Customer including, but not limited to, any purchase order or request for tender, which documents shall not apply to any work undertaken by Gartshore.
2.2 The Customer acknowledges and agrees that:
(a) by signing or acknowledging acceptance of any plans, designs, drawings, tender or quotation, that they are acknowledging that they understand every detail of such a plan, design, drawing tender or quotation and understand that once such acceptance has been received by Gartshore, production will commence and Gartshore shall not be held liable for any misunderstanding that may have occurred; and
(b) if the Customer is undertaking installation of the Goods themselves then additional parts may be required to complete the installation and such parts are not included in the Goods to be provided by Gartshore; and
(c) where it is agreed that or Gartshore is not contracted to undertake, a site measure, and where Gartshore relies on the measurements (in full or in part) provided by the Customer or the Customer’s representative, then the Customer accepts all responsibility for any costs and expenses that may be incurred if the provided measurements are inaccurate or incomplete (including to pay the price quoted and, or the cost of removal, rework, and delivery.
2.3 Where more than one Customer has entered into this agreement, the Customers shall be jointly and severally liable for all payments of the Price.
2.4 Where Gartshore is contracted to undertake supply and/or installation of Goods, the Customer acknowledges and agrees that the following conditions apply:
(a) Gartshore is to be provided clear continuous access to room locations;
(b) Customer is to provide all vertical lifting apparatus including operators, (eg crane at the Customer’s cost) at times and periods suitable to Gartshore;
(c) all walls, floor, ceiling, bulkheads etc surfaces must be less than + or – 3mm tolerance over a 3 metre distance. Should the surfaces not meet this criteria and the cabinetry or other items have to be altered to achieve a good trade practice finish, such costs will be chargeable to the Customer and will give rise to an automatic extension of time entitlement without notice;
(d) all rebates, cut-outs, holes, chases penetrations etc required to facilitate other services and finishes are not included in Gartshore’s pricing;
(e) Gartshore’s reserve the right to manufacture goods to suit their manufacturing processes and procedures. This includes, but is not limited to breakdown of joinery components into manageable sizes, site joints, etc as determined at Gartshore’s sole discretion;
(f) where critical manufacturing information is required, including but not limited to, finishes, sizes, manufacturing specifications, colours, equipment specifications, are not available to suit Gartshore’s manufacturing timetable or programmes, an extension of time shall be granted automatically by the customer, whether applied for by Gartshore or not;
(g) the Customer accepts full responsibility for the accuracy of all manufacturing information including but not limited to, sizes, material specifications and colours. Any costs incurred by Gartshore to rectify the works due to in-correct information provided by others shall be paid for by the Customer.
(h) Gartshore’s quoted price is based on manufacturing / supplying the Goods and Services in one continuous production run. If production or the works are interrupted for any reason, the Customer is to pay the associated costs. Where interrupted or partial manufacturing runs occur, such events will give rise to an automatic extension of time being granted whether or not Gartshore have applied for an extension of time. Gartshore will not be liable for any consequential loss, liquidated or other damages, penalties etc due to interrupted works or manufacturing, events include but are not limited to:
- lack of or untimely manufacturing / site information being provided in writing to Gartshore by the Customer.
- un-availability of customer specified materials
- acts of God (floods etc)
- transportation / logistic restrictions (ferry sailing etc)
- restricted access to sites or locations
- on site conditions
- variations to the Works
2.5 The Customer shall give Gartshore not less than fourteen (14) days prior written notice of any proposed change of ownership of the Customer or any change in the Customer’s name and / or any other change in the Customer’s details (including but not limited to, changes in the Customer’s address, facsimile number, or business practice). The Customer shall be liable for any loss incurred by Gartshore as a result of the Customer’s failure to comply with this clause.
- Price and Payment
3.1 At Gartshore’s sole discretion the Price shall be either:
(a) as indicated on invoices provided by Gartshore to the Customer in respect of Goods supplied; or
(b) Gartshore’s quoted price (subject to clause 3.2) which shall be binding upon Gartshore provided that the Customer shall accept Gartshore’s quotation in writing within thirty (30) days.
3.2 Gartshore reserves the right to change the Price in the event of a variation to Gartshore’s quotation. Any variation from the plan of scheduled works or specifications (including but not limited to, any variation due to unforeseen circumstances, or as a result of increases to Gartshore in the cost of materials and labour) will be charged for on the basis of Gartshore’s quotation and will be shown as variations on the invoice. Payment for all variations must be made in full at their time of completion.
3.3 Gartshore may submit detailed progress payment claims in accordance with Construction Contracts Act 2002. Such payment claims may include the reasonable value of authorised variations and the value of any materials stored off site or delivered to the site but not yet installed. Payment schedules must be received within five working days of receipt of Gartshore’s payment claim.
3.4 At Gartshore’s sole discretion a deposit may be required.
3.5 At Gartshore’s sole discretion:
(a) payment shall be due on delivery of the Goods; or
(b) payment shall be due before delivery of the Goods; or
(c) payment for approved Customers shall be due twenty (20) days following the end of the month in which a payment claim / invoice relates to; or
(d) payment shall be due in accordance with Gartshore’s Contract for Works.
3.6 Time for payment for the Works shall be of the essence and will be stated on the invoice, payment claim or any other forms. If no time is stated then payment shall be due seven (7) days following the date of the invoice or payment claim.
3.7 Payment will be made by cash, or by cheque, or by bank cheque, or by credit card (plus a surcharge of up to three percent (3%), or by direct credit, or by any other method as agreed to between the Customer and Gartshore.
3.8 GST and other taxes and duties that may be applicable shall be added to the Price except when they are expressly included in the Price.
3.9 Gartshore’s quoted price excludes the provision of shop drawings. Gartshore’s will provide standard manufacturing drawings using Microvellum Software. It is acknowledged and agreed that the manufacturing drawings can only commence once all manufacturing information is received in writing from the Customer. It is further acknowledged and agreed that any delay in the providing of all manufacturing information will automatically give rise to an extension of time claim without notice. Upon delivery of Gartshore’s manufacturing drawings to the Customer, the Customer has 48 hours to advise in writing any amendments or queries pertaining to the manufacturing drawings and confirm their approval to proceed with production, based on these manufacturing drawings. It is agreed that Gartshore will make one set of amendments to the manufacturing drawings. Any further amendments required by the Customer will be chargeable to the Customer at the rate of $120.00 per hour excluding GST. Any delays beyond three working days from the date of initial submission to the date of the Customer’s final approval of the manufacturing drawings will give rise to an extension of time without notice. It is agreed that Gartshore will not be liable for any loss, liability, expenses, damages (liquidated or otherwise) or penalties should delays occur in approval of the manufacturing drawings.
For clarity, the timely provision of ALL manufacturing information is the essence to timely production. Failure to provide ALL manufacturing information within the timeframe necessary for production to meet project timelines will result in additional charges and time delays.
- 4. Delivery of Goods
4.1 At Gartshore’s sole discretion delivery of the Goods shall take place when:
(a) the Customer takes possession of the Goods at Gartshore’s address;
(b) the Customer takes possession of the Goods at the Customer’s nominated address (in the event that the Goods are delivered by Gartshore or Gartshore’s nominated carrier); or
(c) the Goods or materials are stored by Gartshore on behalf of the Customer.
4.2 At Gartshore’s sole discretion (unless expressly provided otherwise in Gartshore’s tender response) the costs of delivery are:
(a) included in the Price; or
(b) in addition to the Price.
4.3 The Customer shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery. In the event that the Customer is unable to take delivery of the Goods as arranged then Gartshore shall be entitled to charge a reasonable fee for re-delivery.
4.4 If delivery is delayed as a consequence of the Customer’s instructions, or lack thereof, then Gartshore may at their sole discretion, store the Goods for the Customer and the Customer shall be liable for all storage costs charged or incurred by Gartshore and in the event that the Goods are stored elsewhere all cartage charges incurred by Gartshore.
4.5 Goods will be delivered to the kerb side of the delivery site unless otherwise agreed. Additional requirements of delivery may incur additional charges.
4.6 Delivery of the Goods to a third party nominated by the Customer is deemed to be delivery to the Customer for the purpose of this agreement.
4.7 The failure of Gartshore to deliver shall not entitle either party to treat this contract as repudiated.
4.8 The Customer shall ensure that Gartshore has clear and free access to the work site at all times to enable them to deliver the Goods and / or provide the Services. Gartshore shall not be liable for any loss or damage to the site caused in accessing the delivery, unless due to the negligence of Gartshore.
5.1 If Gartshore retains ownership of the Works nonetheless, all risk for the Works passes to the Customer on delivery.
5.2 If any of the Works are damaged or destroyed following delivery but prior to ownership passing to the Customer, Gartshore is entitled to receive all insurance proceeds payable for the Works. The production of these Terms and Conditions by Gartshore is sufficient evidence of Gartshore’s rights to receive the insurance proceeds without the need for any person dealing with Gartshore to make further enquiries.
5.3 The Customer acknowledges that Works supplied may exhibit variations in shade, colour, texture, surface and finish, and may fade or change colour over time. Gartshore will make every effort to match batches of product supplied in order to minimise such variations but shall not be liable in any way whatsoever where such variations occur.
5.4 Where the Works comprise of solid timber components, the Customer acknowledges and agrees that the timber is a natural product and is subject to grain, texture, density and colour variation. It is further acknowledged and agreed by the Customer that timber is subject to movement, expansion and or shrinkage from the effects of ambient moisture and temperate changes. It is agreed that Gartshore will not be liable for any costs associated with investigating, remediation or replacement of timber components subject to any of the aforementioned.
6.1 Gartshore and Customer agree that ownership of the Works shall not pass until:
(a) the Customer has paid Gartshore all amounts owing for the particular Works; and
(b) the Customer has met all other obligations due by the Customer to Gartshore in respect of all contracts between Gartshore and the Customer.
6.2 Receipt by Gartshore of any form of payment other then cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised and until then Gartshore’s ownership or rights in respect of the Works shall continue.
6.3 It is further agreed that:
(a) where practicable the Goods shall be kept separate and identifiable until Gartshore shall have received payment and all other obligations of the Customer are met; and
(b) until such time as ownership of the Works shall pass from Gartshore to the Customer, Gartshore may give notice in writing to the Customer to return the Works or any of them to Gartshore. Upon such notice being given the rights of the Customer to obtain ownership or any interest in the Works shall cease; and
(c) the Customer only is entitled to the Works and until such time as Gartshore has received payment in full for the Goods then the Customer shall hold any proceeds from the sale or disposal of the Works, up to and including the amount the Customer owes to Gartshore for the Works, on trust for Gartshore; and
(d) until such time that ownership in the Works passes to the Customer, if the Works are converted into other products, the parties agree that Gartshore will be the owner of the end products; and
(e) if the Customer fails to return the Works to Gartshore, then Gartshore or Gartshore’s agent may (as the invitee of the Customer) enter upon and into land and premises owned, occupied or used by the Customer, or any premises where the Works are situated and take possession of the Works, and Gartshore will not be liable for any reasonable loss or damage suffered as a result of any action by Gartshore under this clause.
- Personal Property Securities Act 1999 (“PPSA”)
7.1 Upon assenting to these Terms and Conditions in writing the Customer acknowledges and agrees that:
(a) these Terms and Conditions constitute a security agreement for the purposes of the PPSA; and
(b) a security interest is taken in all Works previously supplied by Gartshore to the Customer (if any) and all Works that will be supplied in the future by Gartshore to the Customer.
7.2 The Customer undertakes to:
(a) sign any further documents and / or provide any further information (such information to be complete, accurate and up-to-date in all respects) which Gartshore may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register;
(b) indemnify, and upon demand reimburse, Gartshore for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register or releasing any Goods charged thereby;
(c) not register a financing change statement or a change demand without the prior written consent of Gartshore; and
(d) immediately advise Gartshore of any material change in its business practices of selling the Works which would result in a change in the nature of proceeds derived from such sales.
7.3 Gartshore and the Customer agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these Terms and Conditions.
7.4 The Customer waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA.
7.5 Unless otherwise agreed to in writing by Gartshore, the Customer waives its right to receive a verification statement in accordance with section 148 of the PPSA.
7.6 The Customer shall unconditionally ratify any actions taken by Gartshore under clauses 7.1 to 7.5.
- Security and Charge
8.1 Despite anything to the contrary contained herein or any other rights which Gartshore may have however:
(a) where the Customer and / or the Guarantor (if any) is the owner of land, realty or any other asset capable of being charged, both the Customer and / or the Guarantor agree to mortgage and / or charge all of their joint and / or several interest in the said land, realty or any other asset to Gartshore or Gartshore’s nominee to secure all amounts and other monetary obligations payable under these Terms and Conditions. The Customer and / or the Guarantor acknowledge and agree that Gartshore (or Gartshore’s nominee) shall be entitled to lodge a caveat against any such asset, which caveat shall be withdrawn once all payments and other monetary obligations payable hereunder have been met.
(b) should Gartshore elect to proceed in any manner in accordance with this clause and / or its sub-clauses, the Customer and / or Guarantor shall indemnify Gartshore from and against all Gartshore’s costs and disbursements including legal costs on a solicitor and own Customer basis.
(c) the Customer and / or the Guarantor (if any) agree to irrevocably nominate constitute and appoint Gartshore or Gartshore’s nominee as the Customer’s and / or Guarantor’s true and lawful attorney to perform all necessary acts to give effect to the provisions of this clause 8.1.
- Customer’s Disclaimer
9.1 The Customer hereby disclaims any right to rescind, or cancel any contract with Gartshore or to sue for damages or to claim restitution arising out of any inadvertent misrepresentation made to the Customer by Gartshore and the Customer acknowledges that the Works are bought relying solely upon the Customer’s skill and judgment.
10.1 The Customer shall inspect the Works on delivery and shall within seven (7) days of delivery (time being of the essence) notify Gartshore of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Customer shall afford Gartshore an opportunity to inspect the Works within a reasonable time following delivery if the Customer believes the Works are defective in any way. If the Customer shall fail to comply with these provisions the Works shall be deemed to be free from any defect or damage. For defective Works Gartshore’s liability is limited to either (at Gartshore’s discretion) replacing the Goods or repairing the Goods.
11.1 Returns will only be accepted provided that:
(a) the Customer has complied with the provisions of clause 10.1; and
(b) Gartshore has agreed in writing to accept the return of the Works; and
(c) the Works are returned at the Customer’s cost within seven (7) days of the delivery date; and
(d) Gartshore will not be liable Works which have not been stored or used in a proper manner; and
(e) the Works are returned in the condition in which they were delivered and with all packaging material, brochures and instruction material in as new condition as is reasonably possible in the circumstances.
11.2 Gartshore may (in its discretion) accept the return of Works for credit but this may incur a handling fee of fifteen percent (15%) of the value of the returned Works plus any freight.
11.3 Non-stocklist items or Works made to the Customer’s specifications are under no circumstances acceptable for credit or return.
12.1 Subject to the conditions of the warranty set out in Clause 12.2 Gartshore warrants that if any defect in any workmanship of Gartshore becomes apparent and is reported to Gartshore within three (3) months of the date of delivery (time being of the essence) then Gartshore will either (at Gartshore’s sole discretion) replace or remedy the workmanship.
12.2 The conditions applicable to the warranty given by Clause 12.1 are:
(a) the warranty shall not cover any defect or damage which may be caused or partly caused by or arise through:
(i) failure on the part of the Customer to properly maintain and Works; or
(ii) failure on the part of the Customer to follow any instructions or guidelines provided by Gartshore; or
(iii) any use of any Works otherwise than for any application specified on a quote or order form; or
(iv) the continued use of any Works after any defect becomes apparent or would have become apparent to a reasonably prudent operator or user; or
(v) fair wear and tear, any accident or act of God.
(b) the warranty shall cease and Gartshore shall thereafter in no circumstances be liable under the terms of the warranty if the workmanship is repaired, altered or overhauled without Gartshore’s consent.
(c) in respect of all claims, Gartshore shall not be liable to compensate the Customer for any delay in either replacing or remedying the workmanship or in properly assessing the Customer’s claim.
12.3 For Works not undertaken by Gartshore, the warranty shall be the current warranty provided by the person undertaking such elements of the Works. Gartshore shall not be bound by nor be responsible for any term, condition, representation or warranty other than that which is given by the person undertaking such elements of the Works.
- Consumer Guarantees Act 1993
13.1 If the Customer is acquiring Works for the purposes of a trade or business, the Customer acknowledges that the provisions of the Consumer Guarantees Act 1993 do not apply to the supply of Works by Gartshore to the Customer.
- Intellectual Property
14.1 Where Gartshore has designed, drawn or written Works for the Customer, then the copyright in those designs are drawings and documents shall remain vested in Gartshore, and shall only be used by the Customer with Gartshore’s prior written approval.
14.2 The Customer warrants that all designs or instructions to Gartshore will not cause Gartshore to infringe any patent, registered design or trademark in the execution of the Customer’s order and the Customer agrees to indemnify Gartshore against any action taken by a third party against Gartshore in respect of any such infringement.
14.3 The Customer agrees that Gartshore may use any documents, designs, drawings or Works created by Gartshore for the purposes of advertising, marketing or entry into any competition.
- Default and Consequences of Default
15.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of three percent (3%) per calendar month (calculated daily, such interest shall be compounding) after as well as before any judgement.
15.2 In the event that the Customer’s payment is dishonoured for any reason the Customer shall be liable for any dishonour fees incurred by Gartshore.
15.3 If the Customer defaults in payment of any invoice when due, the Customer shall indemnify Gartshore from and against all costs and disbursements incurred by Gartshore in pursuing the debt including legal costs on a solicitor and own Customer basis and Gartshore’s collection agency costs.
15.4 Without prejudice to any other remedies Gartshore may have, if at any time the Customer is in breach of any obligation (including those relating to payment) Gartshore may suspend or terminate the supply of Goods to the Customer and any of its other obligations under the Terms and Conditions. Gartshore will not be liable to the Customer for any loss or damage the Customer suffers because Gartshore has exercised its rights under this clause.
15.5 If any account remains overdue after thirty (30) days then an amount of the greater of twenty dollars ($20.00) or ten percent (10%) of the amount overdue (up to a maximum of five hundred dollars ($500.00)) shall be levied for administration fees which sum shall become immediately due and payable.
15.6 Without prejudice to Gartshore’s other remedies at law Gartshore shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to Gartshore shall, whether or not due for payment, become immediately payable in the event that:
(a) any money payable to Gartshore becomes overdue, or in Gartshore’s opinion the Customer will be unable to meet its payments as they fall due; or
(b) the Customer becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer.
16.1 Gartshore may cancel any contract to which these Terms and Conditions apply or cancel delivery of Works at any time before the Works are delivered by giving written notice to the Customer. On giving such notice Gartshore shall repay to the Customer any sums paid in respect of the Price. Gartshore shall not be liable for any loss or damage whatsoever arising from such cancellation.
16.2 In the event that the Customer cancels delivery of the Works the Customer shall be liable for any loss incurred by Gartshore (including, but not limited to, any loss of profits) up to the time of cancellation.
16.3 Cancellation of orders for Works made to the Customer’s specifications or non-stocklist items will definitely not be accepted once production has commenced.
- Privacy Act 1993
17.1 The Customer and the Guarantor/s (if separate to the Customer) authorises Gartshore to:
(a) collect, retain and use any information about the Customer and / or Guarantors, for the purpose of assessing the Customer’s and / or Guarantors credit worthiness or marketing products and services to the Customer and / or Guarantors; and
(b) Disclose information about the Customer and / or Guarantors, whether collected by Gartshore from the Customer and / or Guarantors directly or obtained by Gartshore from any other source, to any other credit provider or any credit reporting agency for the purposes of providing or obtaining a credit reference, debt collection or notifying a default by the Customer and / or Guarantors.
17.2 Where the Customer and / or Guarantors are an individual the authorities under Clause 17.1 are authorities or consents for the purposes of the Privacy Act 1993.
17.3 The Customer and / or Guarantors shall have the right to request Gartshore for a copy of the information about the Customer and / or Guarantors retained by Gartshore and the right to request Gartshore to correct any incorrect information about the Customer and / or Guarantors held by Gartshore.
- Unpaid Gartshore’s Rights
18.1 Where the Customer has left any item with Gartshore for repair, modification, exchange or for Gartshore to perform any other service in relation to the item and Gartshore has not received or been tendered the whole of the Price, or the payment has been dishonoured, Gartshore shall have:
(a) a lien on the item;
(b) the right to retain the item for the Price while Gartshore is in possession of the item;
(c) a right to sell the item.
18.2 The lien of Gartshore shall continue despite the commencement of proceedings, or judgement for the Price having been obtained.
- Construction Contract Act 2002
19.1 The Customer hereby expressly acknowledges that:
(a) the time for the serving of a valid payment schedule, pursuant to Section 21 of the Construction Contracts Act 2002 is to be five calendar days from the date of the payment claim. This clause is to take precedence and overrides anything to the contrary contained in any other agreement, subcontract agreement or contract that supports anything contrary. Gartshore 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 Customer, and;
(i) the payment is not paid in full by the due date for payment and no payment schedule has been given by the Customer; or
(ii) a scheduled amount stated in a payment schedule issued by the Customer in relation to the payment claim is not paid in full by the due date for its payment; or
(iii) the Customer has not complied with an adjudicator’s notice that the Customer must pay an amount to Gartshore by a particular date.
(b) If Gartshore 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 Customer or by any person claiming through the Customer; 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 Gartshore exercises the right to suspend work, the exercise of that right does not:
(i) affect any rights that would otherwise have been available to Gartshore under the Contractual Remedies Act 1979; or
(ii) enable the Customer to exercise any rights that may otherwise have been available to the Customer under that Act as a direct consequence of Gartshore suspending work under this provision.
- Force Majeure
20.1 Neither party will be liable for any failure to perform or for any delay in performing any of its obligations under this agreement (other than any obligation to pay money) where such failure or delay is caused by strike, lockout, difficulty in procuring materials, shortage of labour, failure or delays by suppliers or contractors, legislative, government or other prohibitions or restrictions, fire, flood, hostilities, commotion’s or other causes whatever (whether similar or not to the foregoing) beyond such party’s reasonable control.
21.1 If any provision of these Terms and Conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
21.2 These Terms and Conditions and any contract to which they apply shall be governed by the laws of New Zealand and are subject to the jurisdiction of the courts of New Zealand.
21.3 Gartshore shall be under no liability whatsoever to the Customer for any indirect and / or consequential loss and / or expense (including loss of profit) suffered by the Customer arising out of a breach by Gartshore of these Terms and Conditions.
21.4 The Customer shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Customer by Gartshore nor to withhold payment of any invoice because part of that invoice is in dispute.
21.5 Gartshore may license or sub-contract all or any part of its rights and obligations without the Customer’s consent.
21.6 Gartshore reserves the right to review these Terms and Conditions at any time. If, following any such review, there is to be any change to these Terms and Conditions, then that change will take effect from the date on which Gartshore posts the revised Terms and Conditions of Trade on Gartshore website, www.gartshore.co.nz, or is otherwise notified.
21.7 The failure by Gartshore to enforce any provision of these Terms and Conditions shall not be treated as a waiver of that provision, nor shall it affect Gartshore’s right to subsequently enforce that provision.
21.8 The Customer acknowledges and agrees that Gartshore may engage the services of the Customer’s Consultants (designer, project manager etc) or any other third party to assist in determining any aspect of the Works and Price, including but not limited to design, project management, disputes, contract negotiations, tender clarifications, tender analysis, language interpretation and cost comparison with other third party quotes. The Customer acknowledges and agrees to any such services being engaged and paid for by Gartshore and as such, engagement, payment and transfer of privileged and / or confidential information either to or from Gartshore between related and non-related parties shall not give rise to court action or any other claim or action due to conflict of interest, disclosure of confidential information or breach of Customer confidentiality or other associated grievance.