“Jasp” means Jasp Holdings Ltd (including the trading entities:, Garage Builder, Quin Buildings Rotorua, Dominator Garage Doors Rotorua and Formsteel Carports Rotorua, its successors and assigns or any person acting on behalf of and with the authority of Jasp Holdings Ltd.
“Client” means the person/s buying the Goods as specified in any invoice, document or order, and if there is more than one Client is a reference to each Client jointly and severally.
“Goods” means all Goods or Services supplied by Jasp to the Client at the Client’s request from time to time (where the context so permits the terms ‘Goods’ or ‘Services’ shall be interchangeable for the other).
“Price” means the Price payable for the Goods as agreed between Jasp and the Client in accordance with clause 4 below.
The Client is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Client places an order for or accepts delivery of the Goods.
These terms and conditions may only be amended with Jasp’s consent in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the Client and Jasp.
3. Change in Control
The Client shall give Jasp not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client and/or any other change in the Client’s details (including but not limited to, changes in the Client’s name, address, contact phone or fax number/s, or business practice). The Client shall be liable for any loss incurred by Jasp as a result of the Client’s failure to comply with this clause.
4. Price and Payment
At Jasp’s sole discretion the Price shall be either:
as indicated on any invoice provided by Jasp to the Client; or
the Price as at the date of Delivery according to Jasp’s current price list; or
Jasp’s quoted price (subject to clause 4.2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days. Unless otherwise stated by Jasp in writing, the quotation (where applicable):
is based on the assumption of a clear, level, firm and accessible site. It does not allow for ancillary items such as site preparation, drainage, electrical, ramps, filling unstable or un-level sites or fulfilling any conditions imposed by any local authority;
makes no provision for the supply and installation of any timber fixings or similar for the auto opener or any other components that require solid fixings, and all fixings will be provided by others prior to Delivery (including rebates into concrete or other floors, etc.);
makes no provision for the disposal of un-installed old or used doors/carports, for the supply or installation of any electronic garage door openers or any lock kits and/or any electrical work whatsoever (including wall switches);
makes no provision for (in the case of timber doors) the staining, oiling, painting or similar whatsoever. Protection from water staining or other damage is the Client’s responsibility once the door is on site. Timber doors must be sealed minimum two (2) to three (3) coats all six sides or warranty is invalid.
Jasp reserves the right to change the Price:
if a variation to the Goods which are to be supplied (including any applicable plans or specifications) is requested; or
where additional Services are required due to the discovery of hidden or unidentifiable difficulties (including, but not limited to, poor weather conditions, limitations to accessing the site, availability of machinery, safety considerations, prerequisite work by any third party not being completed, change of design, where an engineer’s report or drawings are required (and have not been allowed for in the quotation), any delay to council consents, hard rock barriers below the surface, iron reinforcing rods in concrete, etc.) which are only discovered on commencement of the Services; or
in the event of increases to Jasp in the cost of labour or materials (including but not limited to overseas transactions that may increase as a consequence of variations in foreign currency rates of exchange, steel prices and/or international freight and insurance charges) which are beyond Jasp’s control.
At Jasp’s sole discretion, a non-refundable deposit of up to fifty percent (50%) may be required.
Time for payment for the Goods being of the essence, the Price will be payable by the Client on the date/s determined by Jasp, which are based on the date of manufacturer’s delivery to Jasp and not installation of the Goods, and may be:
by way of instalments/progress payments in accordance with Jasp’s payment schedule;
the date specified on any invoice or other form as being the date for payment; or
failing any notice to the contrary, the date which is twenty (20) days following the end of the month in which an invoice given/posted to the Client by Jasp.
Payment may be made by cash, cheque, bank cheque, electronic/on-line banking, or by any other method as agreed to between the Client and Jasp.
Unless otherwise stated the Price does not include GST. In addition to the Price the Client must pay to Jasp an amount equal to any GST Jasp must pay for any supply by Jasp under this or any other agreement for the sale of the Goods. The Client must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Client pays the Price. In addition the Client must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.
Delivery of the Goods (“Delivery”) is taken to occur at the time that Jasp (or Jasp’s nominated carrier) delivers the Goods to the Client’s nominated address, even if the Client is not present at the address.
At Jasp’s sole discretion the cost of Delivery is included in the Price.
The Client must take Delivery by receipt or collection of the Goods whenever they are tendered for Delivery. In the event that the Client is unable to take Delivery as arranged then Jasp shall be entitled to charge a reasonable fee for redelivery and/or storage.
Jasp may deliver the Goods in separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.
If Jasp is required to, or if it becomes desirable to, as a result of changes in the building industry, Jasp will be entitled to substitute the Goods for reasonably comparable ones, with an appropriate adjustment to the Price.
Any time or date given by Jasp to the Client is an estimate only. The Client must still accept Delivery even if late and Jasp will not be liable for any loss or damage incurred by the Client as a result of Delivery being late.
Risk of damage to or loss of the Goods passes to the Client on Delivery and the Client must insure the Goods on or before Delivery.
If any of the Goods are damaged or destroyed following Delivery but prior to ownership passing to the Client, Jasp is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by Jasp is sufficient evidence of Jasp’s rights to receive the insurance proceeds without the need for any person dealing with Jasp to make further enquiries.
7. Client’s Responsibilities:
the colour of the Goods are limited to those colours available from Jasp’s suppliers at the time of order placement; and
the choice of colour is entirely the responsibility of the Client and as such commencement of manufacture of the Goods will not proceed without written confirmation of colour from Jasp’s current available range.
shall ensure that Jasp has clear and free access to the property at all times to enable them to effect Delivery, and:
Jasp shall not be liable for any loss or damage to the property (including, without limitation, damage to pathways, driveways and concreted or paved or grassed areas) unless due to the negligence of Jasp;
in event that adequate access is not made available in accordance with this clause, then Jasp may (at its sole discretion) arrange for suitable access to be formed at the Client’s cost, or suspend Delivery until such time as adequate access is made available.
supply temporary lighting, toilet, eating and first aid facilities if required;
advise all amenity locations (including without limitation, water, gas, electricity, telephone or any other underground amenity) to Jasp prior to Delivery;
acknowledges that Goods (including but not limited to paint, timber, granite, tiles and concrete) supplied may:
exhibit variations in shade, colour, texture, surface, finish, markings, veinings, and may contain natural fissures, occlusions, lines, indentations and may fade or change colour over time. Whilst Jasp will make every effort to match sales samples to the finished Goods, Jasp accepts no liability whatsoever where such samples differ to the finished Goods supplied; and
expand, contract or distort as a result of exposure to heat, cold, weather. Jasp will accept no responsibility for gaps that may appear during prolonged dry periods; and
mark or stain if exposed to certain substances; and
be damaged or disfigured by impact or scratching.
warrants that the structure of the premises or equipment in or upon which the Goods are to be installed or erected is sound and will sustain the installation and work incidental thereto and Jasp shall not be liable for any claims, demands, losses, damages, costs and expenses howsoever caused or arising in connection with the installation and work incidental thereto;
shall not store items in the roof space, or affix linings to the portal frames unless the roof of the building has been specifically designed by Jasp for carrying loads;
agrees to identify (at the Client’s own cost) the true boundary of the property, and the location of all survey pegs, the subject of the installation of the Goods;
and where the building includes a concrete floor, whilst Jasp will ensure that the floor is poured in accordance with relevant building regulations and in a tradesman-like manner, Jasp will not be responsible for cracking of a non-structural nature;
where the building is to be erected within five hundred metres (500m) of a coastline or in another type of corrosive or hostile environment, the Client acknowledges that Jasp has advised them that sheet metal cladding may not be fit for the intended use. As a result, Jasp’s warranty does not expand to the performance of sheet metal cladding, and Jasp will not be liable for any defects arising, in these instances.
Where the Client:
is to supply Jasp with:
any design specifications (including, but not limited to CAD drawings), the Client shall be responsible for providing accurate data. Jasp shall not be liable whatsoever for any errors in the Goods that are caused by incorrect or inaccurate data being supplied by the Client;
materials for Jasp to complete the Services, the Client acknowledges that they accept responsibility for the suitability of purpose, quality and any faults inherent in those materials. Jasp shall not be responsible for any defects in the Services, any loss or damage to the materials (or any part thereof), howsoever arising from the use of materials supplied by the Client.
or a third party contracted by the Client, is either installing the Goods or excavating the site for the installation of the Goods, Jasp shall not be responsible for any defects in any subsequent Services performed by Jasp, any loss or damage to the Goods (or any part thereof), howsoever arising therefrom, and any remedial work required shall be in addition to the Price.
8. Compliance with Laws
The Client and Jasp shall comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities that may be applicable to the Goods, including any occupational health and safety laws relating to building/construction sites and any other relevant safety standards or legislation.
The Client shall obtain (at the expense of the Client) all licenses, consents and approvals that may be required for the Goods.
9. Underground Locations
Prior to Jasp commencing the Services, the Client must advise Jasp of the precise location of all underground services on the site and clearly mark the same. The underground mains and services the Client must identify include, but are not limited to, electrical services, gas services, sewer services, pumping services, sewer connections, sewer sludge mains, water mains, irrigation pipes, telephone cables, fibre optic cables, oil pumping mains, and any other services that may be on site.
Whilst Jasp will take all care to avoid damage to any underground services the Client agrees to indemnify Jasp in respect of all and any liability claims, loss, damage, costs and fines as a result of damage to services not precisely located and notified as per clause 9.1.
Jasp and the Client agree that ownership of the Goods shall not pass until:
the Client has paid Jasp all amounts owing to Jasp; and
the Client has met all of its other obligations to Jasp.
Receipt by Jasp of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised, and until then Jasp’s rights and ownership in relation to the Goods, and this agreement, shall continue.
It is further agreed that, until ownership of the Goods passes to the Client in accordance with clause 10.1:
the Client is only a bailee of the Goods and must return the Goods to Jasp on request.
the Client holds the benefit of the Client’s insurance of the Goods on trust for Jasp and must pay to Jasp the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed.
the Client must not sell, dispose, or otherwise part with possession of the Goods other than in the ordinary course of business and for market value. If the Client sells, disposes or parts with possession of the Goods then the Client must hold the proceeds of any such act on trust for Jasp and must pay or deliver the proceeds to Jasp on demand.
the Client should not convert or process the Goods or intermix them with other goods but if the Client does so then the Client holds the resulting product on trust for the benefit of Jasp and must sell, dispose of or return the resulting product to Jasp as it so directs.
the Client irrevocably authorises Jasp to enter any premises where Jasp believes the Goods are kept and recover possession of the Goods.
Jasp may recover possession of any Goods in transit whether or not Delivery has occurred.
the Client shall not charge or grant an encumbrance over the Goods nor grant nor otherwise give away any interest in the Goods while they remain the property of Jasp.
Jasp may commence proceedings to recover the Price notwithstanding that ownership of the Goods has not passed to the Client.
11. Personal Property Securities Act 1999 (“PPSA”)
Upon assenting to these terms and conditions in writing the Client acknowledges and agrees that:
these terms and conditions constitute a security agreement for the purposes of the PPSA; and
a security interest is taken in all Goods previously supplied by Jasp to the Client (if any) and all Goods that will be supplied in the future by Jasp to the Client.
The Client undertakes to:
sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which Jasp may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register;
indemnify, and upon demand reimburse, Jasp 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;
not register a financing change statement or a change demand without the prior written consent of Jasp; and
immediately advise Jasp of any material change in its business practices of selling the Goods which would result in a change in the nature of proceeds derived from such sales.
Jasp and the Client agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms and conditions.
The Client waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA.
Unless otherwise agreed to in writing by Jasp, the Client waives its right to receive a verification statement in accordance with section 148 of the PPSA.
The Client shall unconditionally ratify any actions taken by Jasp under clauses 11.1 to 11.5.
12. Security and Charge
In consideration of Jasp agreeing to supply the Goods, the Client charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, 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 (including, but not limited to, the payment of any money).
The Client indemnifies Jasp from and against all Jasp’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising Jasp’s rights under this clause.
The Client irrevocably appoints Jasp and each director of Jasp 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. Client’s Disclaimer
The Client hereby disclaims any right to rescind, or cancel any contract with Jasp or to sue for damages or to claim restitution arising out of any inadvertent misrepresentation made to the Client by Jasp and the Client acknowledges that the Goods are bought relying solely upon the Client’s skill and judgment.
14. Defects and Warranty
The Client shall inspect the Goods on Delivery and shall within thirty (30) days of such time (being of the essence) notify Jasp of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote.The Client shall afford Jasp an opportunity to inspect the Goods within a reasonable time following such notification if the Client believes the Goods are defective in any way. If the Client shall fail to comply with these provisions the Goods shall be presumed to be free from any defect or damage. For defective Goods, which Jasp has agreed in writing that the Client is entitled to reject, Jasp’s liability is limited to either (at Jasp’s discretion) replacing the Goods or repairing the Goods.
Goods will not be accepted for return other than in accordance with 14.1 above.
The warranty shall be the current warranty provided by the manufacturer of the Goods. Jasp shall not be bound by nor be responsible for any term, condition, representation or warranty other than that which is given by the manufacturer of the Goods.
15. Consumer Guarantees Act 1993
If the Client is acquiring Goods for the purposes of a trade or business, the Client acknowledges that the provisions of the Consumer Guarantees Act 1993 do not apply to the supply of Goods by Jasp to the Client.
16. Intellectual Property
Where Jasp has designed, drawn or developed Goods for the Client, then the copyright in any designs and drawings and documents shall remain the property of Jasp.
The Client warrants that all designs, specifications or instructions given to Jasp will not cause Jasp to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify Jasp against any action taken by a third party against Jasp in respect of any such infringement.
The Client agrees that Jasp may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings or Goods which Jasp has created for the Client.
17. Default and Consequences of Default
Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at Jasp’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
If the Client owes Jasp any money the Client shall indemnify Jasp from and against all costs and disbursements incurred by Jasp in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, Jasp’s collection agency costs, and bank dishonour fees).
Without prejudice to any other remedies Jasp may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions Jasp may suspend or terminate the supply of Goods to the Client. Jasp will not be liable to the Client for any loss or damage the Client suffers because Jasp has exercised its rights under this clause.
Without prejudice to Jasp’s other remedies at law Jasp shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to Jasp shall, whether or not due for payment, become immediately payable if:
any money payable to Jasp becomes overdue, or in Jasp’s opinion the Client will be unable to make a payment when it falls due;
the Client 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
a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.
Jasp may cancel any contract to which these terms and conditions apply or cancel Delivery at any time before the Goods are delivered by giving written notice to the Client. On giving such notice Jasp shall repay to the Client any money paid by the Client for the Goods. Jasp shall not be liable for any loss or damage whatsoever arising from such cancellation.
In the event that the Client cancels Delivery the Client shall be liable for any and all loss incurred (whether direct or indirect) by Jasp as a direct result of the cancellation (including, but not limited to, any loss of profits).
Cancellation of orders for Goods made to the Client’s specifications, or for non-stocklist items, will definitely not be accepted once production has commenced, or an order has been placed.
19. Privacy Act 1993
The Client authorises Jasp or Jasp’s agent to:
access, collect, retain and use any information about the Client;
(including any overdue fines balance information held by the Ministry of Justice) for the purpose of assessing the Client’s creditworthiness; or
for the purpose of marketing products and services to the Client.
disclose information about the Client, whether collected by Jasp from the Client directly or obtained by Jasp 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 Client.
Where the Client is an individual the authorities under clause 19.1 are authorities or consents for the purposes of the Privacy Act 1993.
The Client shall have the right to request Jasp for a copy of the information about the Client retained by Jasp and the right to request Jasp to correct any incorrect information about the Client held by Jasp.
20. Construction Contracts Act 2002
The Client hereby expressly acknowledges that:
Jasp 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 Client, and:
the payment is not paid in full by the due date for payment and no payment schedule has been given by the Client; or
a scheduled amount stated in a payment schedule issued by the Client in relation to the payment claim is not paid in full by the due date for its payment; or
the Client has not complied with an adjudicator’s notice that the Client must pay an amount to Jasp by a particular date; and
Jasp has given written notice to the Client of its intention to suspend the carrying out of construction work under the construction contract.
if Jasp suspends work, it:
is not in breach of contract; and
is not liable for any loss or damage whatsoever suffered, or alleged to be suffered, by the Client or by any person claiming through the Client; and
is entitled to an extension of time to complete the contract; and
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.
if Jasp exercises the right to suspend work, the exercise of that right does not:
affect any rights that would otherwise have been available to Jasp under the Contractual Remedies Act 1979; or
enable the Client to exercise any rights that may otherwise have been available to the Client under that Act as a direct consequence of Jasp suspending work under this provision.
The failure by Jasp to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect Jasp’s right to subsequently enforce that provision. 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.
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 Rotorua Court of New Zealand.
Jasp shall be under no liability whatsoever to the Client for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by Jasp of these terms and conditions (alternatively Jasp’s liability shall be limited to damages which under no circumstances shall exceed the Price).
The Client shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Client by Jasp nor to withhold payment of any invoice because part of that invoice is in dispute.
Jasp may license or sub-contract all or any part of its rights and obligations without the Client’s consent.
The Client agrees that Jasp may amend these terms and conditions at any time. If Jasp makes a change to these terms and conditions, then that change will take effect from the date on which Jasp notifies the Client of such change. The Client will be taken to have accepted such changes if the Client makes a further request for Jasp to provide Goods to the Client.
Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.
The Client warrants that it has the power to enter into this agreement and has obtained all necessary authorisations to allow it to do so, it is not insolvent and that this agreement creates binding and valid legal obligations on it.