CUSTOMER ENGAGEMENT / TERMS OF TRADE
 
The following terms shall be incorporated into every contract between the Customer and Acrow Ltd (the Company) for the supply of goods and services, unless otherwise specifically stated in writing by the Company.   If applicable, Acrow Ltd Terms of Credit should be read in conjunction with these Terms of Trade.
 

CUSTOMER ENGAGEMENT and TERMS OF TRADE

 
1        This agreement shall be subject to and be covered by the laws of New Zealand
 
2        The attached Schedule I - General Terms and Conditions of Trading in respect of Hireage and Sales, and Schedule II - the Special Terms and Conditions in respect of Scaffolds, Mastclimbers, Formwork, Falsework, and Event Seating (as may be applicable), together with the Acrow Quotation Acceptance form and these Terms of Trade, shall form the complete Terms of Engagement between the Customer and the Company and shall govern all contracts and dealings with the Company.
 
3        The Directors (in the case of a Company), or the Partners (in the case of a Partnership), or the Trustees (in the case of a Trust), or the individuals (in the case of Sole Traders or Private Individuals), are personally liable for all debts owing to the Company, and by signing this Engagement Form, thereby provide a personal guarantee of all moneys owing to the Company.
 
4        All obligations herein are joint and several. All obligations herein shall bind the Customer, their executors, administrators, successors and assigns.
 
5        The Company advises you that it conducts its business under the terms of the Construction Contracts Act (2002).    
 
6        All accounts shall be due within 7 days of the date of invoice, unless agreed with the Company in writing, or as otherwise stated in the contract.
 
7        The Company advises you that (unless otherwise agreed with the Company in writing), if you do not have a credit account, the Company will require a deposit of 70% of the labour and transport costs prior to commencement of the work; the remaining 30% will be payable prior to release of that work; and weekly hireage charges will be payable within 7 days of the date of invoice.
 
8        All payments made by the Customer (cleared funds) will be credited to the Customer’s account in the normal course of business.
 
9        The Customer authorizes the Company at its sole discretion, to enter its interest in the Personal Property Securities Register and the Customer hereby waives its right to be notified of any such registration of interest.
 
10     The Company reserves the right to correct any errors and omissions in relation to its quotations, payment claims or invoices.  
 

UNPAID ACCOUNTS

 
11     If any amount due is not paid by the due date the Company may apply to the overdue amount a one-off 5% penalty charge. This penalty charge will be added to the previous overdue amount as at the due date and so will form a ‘new’ overdue amount.
 
12     The Company may also charge interest on any overdue balance from the due date to the actual date of payment, at a rate of 24% (twenty four percent) per annum.
 

RECOVERY OF DEBT

 
13     The Customer shall pay all costs directly and reasonably incurred by the Company in the enforcement and collection of any overdue amounts including any penalties, interest, all legal fees, commissions or other associated collection charges. 
 

OWNERSHIP OF GOODS

 
14     Until the Company has received payment in full in respect of goods and services and other costs provided to the Customer:
 
a)      The ownership of the goods delivered shall not be transferred to the Customer but shall remain with the Company; and
b)      The relationship of the applicant to the Company shall be fiduciary in respect of the goods which shall be held by the Customer as bailee; and
c)       The Customer shall store the goods in such a way that identifies the goods as the property of the Company; and
d)      The Customer shall not sell or otherwise dispose of or deal with the goods or do any act that may affect or defeat the Company's title to the goods PROVIDED THAT the applicant may with the Company's prior consent as fiduciary deal or otherwise dispose of the goods in the normal course of trade on the understanding that the proceeds of disposition shall at all times be the property of the Company. The Customer shall account directly to the Company for the proceeds of such disposition or such payments held on trust for the Company in a separate account; and
e)      The Customer irrevocably authorises the Company its agents and servants for so long as title to the goods remains with the Company to search for and remove the goods and for that purpose to enter into any premises where they may be found using such force as is necessary. The Customer will indemnify the Company against any costs and liabilities that may arise as a result of the entry by the Company into any premises or the seizure by the Company of any goods under this clause.
 
 
 
 
SCHEDULE I - Acrow Ltd - General Conditions of Trading
 
 
The following terms and conditions shall be incorporated into every contract between the Customer and the Company for the supply by the company of goods and services. No variation or waiver to these terms and conditions shall be recognized or binding on the Company unless that variation or waiver is in writing and signed by the Company andannexed hereto.
 
General Conditions of Trading - In Respect of both HIREAGE and SALES
 
1.        Definitions:
     ‘Company’ means Acrow Ltd, a company duly incorporated in New Zealand, and it’s subsidiaries.
     ‘The Customer’ means the person or persons, firm, company or incorporation purchasing or hiring any goods from the Company.
     ‘Company’s Premises’ means the premises from which the Company ordinarily carries out business.
 
2.        Orders:No quotation made by the Company shall constitute a binding offer by the Company.  No verbal orders will be accepted.  All orders made by the Customer must be made in writing (either by mail or by email or by facsimile), on an Acrow-approved acceptance form.  Written orders received by the Company shall be deemed to constitute an offer by the Customer to enter into a contract on these conditions.  An offer made by the Company and subsequently accepted by the Customer, shall constitute a binding offer once the Company has confirmed the Customer’s acceptance in writing. No order from the Customerwill be accepted other than on these terms and conditions, and any terms proffered by the Customer are hereby excluded unless expressly agreed to in writing.
 
3.        Illustrations:Any illustrations given by the Company are given as an aid to identification only and it is not intended that such illustrations will be a condition of the terms of sale or hireage nor does the Company warrant that the goods shall correspond with the illustration.
 
4.        Charges:Prices are based on the cost of labour, materials, freight, insurance and exchange rates as at the date of the quotation and upon the Company performing the work for the supply and/or preparation of the goods during normal business hours.  The price specified by the Companymay subsequently be increased to the extent that any of the above, or overtime, or extra shifts outside of normal business hours are required. Hireage charges commence on the date of delivery or deemed delivery.
 
5.        Contract Price:Any additional expense incurred as a result of changes made by, or at the request of the Customer or by any delay in the continuity of the work caused by any act or default of the Customer or by any other party engaged by the Customer, shall be payable by the Customer in addition to the specified price. Such aggregate, increased or corrected price will be the contract price (‘Contract Price’). The Contract Price does not include delivery, assembly, construction, or erection of the goods unless specifically stated. If the Company in computing the Contract Price makes any errors or omissions, the Contract Price may be adjusted to correct such errors or omissions. Contract Prices are exclusive of goods and services tax.
 
6.        Cancellation: The Customer shall not be entitled to cancel any order accepted by the Company. If the Company agrees to a request for cancellation, the Company may charge the Customer for all of (or part of) the costs and expenses incurred by the Company in respect of the contract including the Company’s loss of profits.
 
7.        Delivery:
(a)       The Company shall try to make delivery at the time or date for delivery specified by the Company however it shall not be liable for the consequences of any delay howsoever arising and the Customer acknowledges that the Company will not accept any liability for any claims or losses arising from its failure to meet the delivery date.  Delayed delivery shall not invalidate the contract or subject the Company to any penalty and the Customer will accept the goods when delivered and pay the price prevailing at the date of delivery notwithstanding any such delay. Unless otherwise agreed the Customer shall take delivery of the goods at the Company’s Premises.  If the Company arranges for the delivery of the goods to the location specified by the Customer the cost of such delivery shall be borne by the Customer and unless the Contract Price specifically includes delivery and costs, that cost shall be in addition to the Contract Price.
(b)       The Customer or their authorized representative shall be present at the time and place of the delivery, shall fully inspect the goods and verify their general condition and repair, and shall by placing their signature on an Acrow-approved delivery docket confirm the above, and that the delivery of the required goods has been effected to their satisfaction. Failure to so inspect and confirm, shall in no way limit the Customer’s liabilities in respect of the contract and/or these General Terms of Trading.
(c)       Delivery shall be deemed to have been effected:
(i)           where the Company does not arrange for delivery upon the goods leaving the Company’s premises; 
(ii)          where the Company does arrange for delivery upon the goods arriving at the location specified by the Customer;
(iii)         upon the date the goods are due and available for delivery and the Company is willing and able to effect delivery regardless of whether the Customer takes or accepts the same;
(d)       Where the goods are available and due for delivery and the customer fails to take or accept the goods the Company may charge the Customer hireage from such date, the cost of storage and transportation together with all other costs incurred by the Company in respect of storing and maintaining the goods at the Company’s Premises.
 
8.        Payments:
(a)       All payments shall be due within 7 days of the date of invoice, unless agreed with the Company in writing, or as otherwise stated in the contract, or as may be provided at the discretion of the Company through a credit facility.
(b)       If any amount due is not paid by the due date the Company may apply to the overdue amount a one-off 5% penalty charge. This penalty charge will be added to the previous overdue amount as at the due date and so will form a ‘new’ overdue balance.
(c)       The Company will charge interest on any overdue balance from the due date to the date of actual payment at a rate of 24% (twenty four percent) per annum.
(d)       The Customer shall also pay all costs directly related to the enforcement and collection of all overdue amounts including any legal fees and/or collection charges so incurred by the Company.
(e)       All amounts payable by the Customer shall be paid free and clear of, and (to the extent required by law) without any deduction or withholding on account of any tax. 
 
9.        Default:In the event that:
(a)       The Customer fails to pay any amount owing on the due date or is in breach of any other terms and conditions of this Contract all or any other contract between the Customer and the Company, and such default continues for three days; or
(b)       The Customer shall have an execution levied against it, becomes bankrupt or insolvent, or commits any act of bankruptcy or enters into or attempts to enter into any compromiseor arrangement with its creditors (voluntary, informal or otherwise) or in the case of a company, does any act which would render it liable to be wound up or have a receiver or statutory manager appointed over its property or if it has a winding up order made against it or passes or attempts to pass a resolution for the winding up or is a party to the appointment of or have a manager or receiver appointed over the whole or any part of its property or undertaking;  or
(c)       If the Company believes the goods to be at risk for any reason whatsoever, including but not limited to the manner in which it is used, or adverse weather or work conditions, or that the Customer is unable to, or might be unable to pay any hire charge or purchase price; or 
(d)       The goods are damaged lost, stolen or destroyed,
  then the total price payable by the Customer shall thereupon be due and payable and the Company may:
(i)           Enforce payment of the balance of the total price due and payable together with the penalties and interest payable thereon under clause 8 notwithstanding that delivery of the materials has not been effected and that but for this clause payment would not be due; and/or
(ii)          Refuse to deliver any further goods to the Customer (under this contract or under any other contract) until default on the part of the Customer is remedied; and/or
(iii)         Retake possession of any of the goods provided to the Customer and for that purpose may enter the premises where they may be situated, in such event all costs incurred by the Company in the recovery of the goods are to be paid by the Customer; and/or
(iv)         Cancel this contract; and/or
(v)          Immediately withdraw any credit facility
Any rights exercised by the Company pursuant to this clause shall not terminate the Customer’s liabilities under the contract or prejudice any other right or remedy the Company has at law or equity.
 
10.      Company Expenses:The Customer shall pay the costs and expenses including all legal fees incurred by The Company in exercising any of its rights or remedies or enforcing any of the terms, conditions or provisions of this contract.
 
11.      Intellectual Property:
(a)       The intellectual property rights in respect of the goods and the erection, construction and assembly of the goods remains with the Company notwithstanding the sale or hire of the goods to the Customer.  In the event that the goods are modified or altered by the Company, or by the Customer or by a third party with the Company’s prior written permission (in respect of hired goods) the intellectual property rights in such modifications or alterations shall remain the property of the Company.
(b)       Where the Company has followed a design or instruction given by the Customer, the Customer shall indemnify the Company against all damages, penalties, costs and expenses of the Company in respect of which the Company may be liable through any work required to be done in accordance with those designs or instructions involving an infringement of a patent, trademark, registered design or common law right. The Customer warrants that any design or instruction furnished or given by the Customer shall not cause the Company to infringe any letters patent, registered design, trademark or common law right.
(c)       Any technical drawings and illustrations prepared by the Company in the course of determining the Contract Price at all times remain the property of the Company.  The Company may apply a charge for such work at its sole discretion. 
 
12.      Waiver: Failure or omission by the Company at any time to enforce or require strict or timely compliance of any provision of this contract shall not affect or impair that provision in any way or the rights of the Company to avail itself of the remedies it may have in respect of any breach of that provision whether pursuant to this contract or at law.
 
13.      Severance:The illegality, invalidity or unenforceability of a provision of this contract under any law shall not affect the legality, validity or enforceability of that provision under another law or the legality, validity or enforceability of any other provision of this contract.
 
14.      Indemnity:The Customer shall fully and completely indemnify the Company against any and all claims, actions, suits, proceedings, costs, expenses, damages and liability, including all legal fees arising out of or connected with or resulting from a breach by the Customer of its obligations under this contract or as a result of injury to any person or property caused by or in connection with the use by the Customer of the goods (including without limitation the manufacture, selection, delivery possession, use, operation or return of the goods) whether arising under statute or common law.
 
15.      Use:The Customer shall comply with all laws, by-laws and regulations; take out and maintain all licenses; meet all operating expense relating to the use, operation and maintenance of goods; and do so at its sole cost and expense.
 
16.      Force Majeure:The Company shall not be liable for any delay alteration or failure to perform its obligations under this Contract if occasioned by any event beyond the Company’s control (‘force majeure’).  The performance of the Company’s obligations under this agreement will be suspended for the period of any delay due to force majeure.  Any additional costs incurred by the Company due to events beyond its control will be payable by the customer.
 
17.      Representations and Warranties: Any representation undertaking or warranty made by the Company or any agent employee or representative of the Company unless recorded in writing on the reverse of this form or annexed hereto is cancelled and withdrawn and shall not apply to this contract or any contract collateral to this contract. To the extent permitted by law all warranties, conditions and guarantees implied by law (including but not limited to any warranties as to suitability of the goods for the use to which they will be put and the statutory guarantees implied under the Consumer Guarantees Act) are excluded from this contract and shall not apply to it.
 
18.      Liability:The Company’s liability under this or any associated contract is limited to replacing (or at the election of the Company, repairing) any defective good to the entire exclusion of any other remedy which, but for this clause, the Customer might have. The Company shall be under no liability for any damage, injury, direct, consequential, or other loss, or loss of profit; or costs, charges or expenses on the part of the Customer or any other person other than to repair or replace as mentioned above.
 
 
Further Conditions of Trading In Respect of HIREAGE
 
19.      Availability:All goods are offered subject to stock being available at date of receipt of order. Should alternative materials be substituted the hire charges may alter accordingly.
 
20.      Deposit:The Company may, at its sole discretion require Customers who do not operate a credit facility with the Company to pay a deposit upon delivery of the goods. The sum of the deposit will be determined by the Company at its sole discretion.  In the event that the Customer increases the period of hire or does not return the goods on the due date the Company may request an additional amount to be paid by the Customer, the sum of which will be determined by the Company at its sole discretion. If the Customer does not return the goods on the due date or does not pay the additional amount the Company may retake possession of the goods pursuant to clause 9. Alternatively the Company may interpret the non-return of the goods as a statement that the goods have been lost or stolen, whereby the Company will invoice the Customer for an amount equal to the replacement cost of the goods.
 
21.      Minimum Hiring Period:The minimum hiring period unless otherwise specified is one week.  Hire commences on the day the goods leave the Company’s premises and terminates the day on which the goods hired pursuant to this contract are returned. 
 
22.      Ownership:Goods supplied on hire by the Company are and shall at all times remain the sole and exclusive property of the Company. The Customer shall have no right title or interest in the goods except as expressly set out in these conditions. The Customer covenants and agrees not to assign, charge, encumber, mortgage, pledge, sell, sub-let or hire out or otherwise part with possession or control of the goods or any part thereof or attempt to do so during the term of the contract, unless so authorized in writing.
 
23.      Site Access:Acceptance of this quotation gives the Company the right of access to any site to which the goods have been or are to be delivered at all times and for any purposes connected with the hire transaction.
 
24.      Location of Hired Goods:The goods shall be located at the Customer’s nominated site and, except in respect of the return of goods to the Company, shall not be removed from such site without the prior written consent of the Company.
 
25.      Operation of Goods:The Customer covenants and agrees to take all reasonable care in the housing, handling and operation of the goods so as to prevent damage to or loss or destruction of the goods and in particular:
(a)       to take all reasonable and prudent measures to keep the goods secure and in a safe place when not in use;
(b)       to operate or use the goods or permit the goods to be operated or used only by properly skilled and experienced persons who were not under the influence of alcohol or drugs in all respects in accordance with the requirements of statute or common law;  and
(c)       to ensure that the goods are used solely for the purposes intended by the manufacturer having regard to the capabilities and limitations of the goods.
 
26.      Condition, Return and Maintenance: The Customer shall, at the expense of the Customer:
(a)       Return the goods in good working order, repair and condition and shall ensure that the goods are regularly cleaned and oiled and shall neither abuse nor misuse the goods, fair wear and tear resulting from proper use excepted;
(b)       Immediately notify the Company in the event that the goods have been lost, stolen, damaged or destroyed or if the goods are not operating in their proper manner;
(c)       Not permit any repairs, additions, alterations or adjustments to be made to the goods by any person other than by the Company or its sub-contractors, and further not to modify or merge all or any part of the goods with any other goods without the prior written consent of the Company. The Customer acknowledges that if it is in breach of this sub-clause then any warranties specifically given in writing by the Company in respect of the safety of the goods and/or fitness for the purpose shall be null and void.
 
27.      Set-off:In no event shall the hire or other charges payable by the Customer be subject to any set-off by the Customer.
 
28.      Lost, Stolen, Damaged or Destroyed Goods:  The Customer shall:
(a)       Pay any costs incurred by the Company to replace the goods at market cost, that result from loss, theft, damage or destruction;
(b)       Pay any costs incurred by the Company to repair maintain alter or adjust the goods if such repair, maintenance, alteration or adjustment is due to the fault of the Customer, fair wear and tear resulting from proper use excepted.
 
29.      Hireage Returns and Pickup:The Customer shall give three days notice of intention to return the goods or request pickup ex-site.  The Customer or their authorized representative shall be present at the time and place of the return of the goods, shall fully inspect and verify the quantities and general condition and repair of the goods being returned, and shall so confirm the above by placing their signature on an Acrow-approved count sheet. Failure to so inspect and confirm, shall in no way limit the Customer’s liabilities in respect of the contract and/or these General Terms of Trading.
 
30.      Packaging Materials:If any crates, cases or bundling are used to package the goods for delivery the cost of these will be extra to the quoted price (unless the quotation specifically states that packing costs are included therein) and will be payable by the Customer.
 
 
 
Further Conditions of Trading In Respect of SALES
 
31.      Insurance:It shall be the Customer’s obligation to maintain insurance in respect of the goods.
 
32.      Deposit:In the case of Custom-made goods the Company may require a deposit of the Contract Price to be paid by the Customer prior to commencement by the Company of the manufacture of the goods. The sum of the required deposit will be determined by the Company in its sole discretion. 
 
33.      Risk:Notwithstanding that title in the goods may remain with the Company, the risk in respect of the goods shall pass to the Customer at the date of delivery or deemed delivery pursuant to clause 36.
 
34.      Title:
(a)       It is the intention of the Company (‘the Seller’) and agreed by the Customer (‘the Buyer’) that property in the goods shall not pass until payment has been made in full and that the goods, or proceeds of sale of the goods, shall be kept separate until the Seller shall have received the price and:        
(i)           The Buyer will hold the goods or any of them on trust for the Seller as bailee of the Seller.
(ii)          The Buyer will store the goods without cost to the Seller separately from other goods in the possession of the Buyer, and clearly distinguish and identify the goods as the Seller's goods.
(iii)         If the Buyer sells or trades the goods the goods will be sold at market value as fixed by this agreement on account of the Seller.
(iv)         While the Buyer shall deal as principal and the Seller shall not be liable to any person with whom the Buyer deals nevertheless the Buyer shall hold the entire proceeds of sale or other dealing in respect of the goods in trust for the Seller in a separate account for the Seller.
(v)          The Buyer shall not deal with the money of the Seller in any way adversely to the Seller.
(vi)         Until such time as ownership of the goods shall pass from the Seller to the Buyer the Seller may give notice in writing to the Buyer to return the goods or any of them to the Seller.
(vii)        Upon such notice the rights of the Buyer to obtain ownership or any other interests in the goods shall cease.
(viii)       If the Buyer fails to return the goods to the Seller then the Seller or the Seller's agent may enter upon and into buildings and premises owned, occupied or used by the Buyer where the goods are situated and take possession of the goods.
(ix)         The Buyer shall not charge the goods in any way nor give any interest in the goods while they remain the property of the Seller.
(x)          The Buyer shall insure and keep insured the goods to the full price against all risks until the price shall be received by the Seller.
(b)       Nothing in this clause shall prevent the Seller from requiring payment of the purchase price or the balance of the purchase price due together with any other amounts due from the Buyer to the Seller arising out of this agreement, and the Seller may take any lawful steps to require payment of the amounts due and the purchase price.
(c)       The foregoing provisions shall not entitle the Buyer to return the goods without demand from the Seller.
(d)       At the Buyers expense the Buyer shall, if required, execute aregisterablecharge securing the payment of the price by the Buyer against the goods to be discharged by the Seller on the receipt by the Seller of the purchase price.
 
35.      Loss or Damage in Transit:If the Company arranges for delivery of the goods and such goods are lost or damaged in transit before risk passes to the Customer the Company will at its option replace, repair or give credit for them only if the Customer notifies the Company in writing within seven days after delivery of the goods in the case of damage or short delivery or within seven days of receipt of the Company’s invoice in the case of non-delivery of the whole of the consignment of the goods.
 
36.      Sales Returns:In the event the goods are defective or do not conform to the specifications in any way the Customer must notify the Company within seven working days of receipt of the goods by notice in writing and the goods must be forthwith returned at the Customer’s expense to the Company. The Company may then review the goods and at its sole discretion may repair or replace the goods. The Customer may not return the goods in any other circumstances.
 
 
TERMS OF CREDIT
 
The following terms and conditions will apply to any line of credit facility provided to me/us by Acrow Ltd (the Company) unless otherwise specifically stated in writing by the Company, and should be read in conjunction with Acrow Ltd Terms of Trade, and with Schedule 1 – Acrow Ltd – General Conditions of Trading.
 
CREDIT
1.         This agreement shall be subject to and be covered by the laws of New Zealand.
2.         The Customer irrevocably authorises the Company to collect any information that It requires from any person or company in order to undertake its credit enquiry.
3.         The Customer hereby authorizes the Company to disclose to any third party details of this application and any subsequent dealings that the Customer has or may have with the Company as a result of this credit application being actioned by the Company.
4.         The Customer hereby acknowledges that to the extent provided under the Privacy Act 1993 the Customer is entitled to have access to and to request correction of any of the information that the Company has collected and t hat it holds about them pursuant to this application for credit.
5.         The Customer Agrees to notify the Company of any changes to the particulars provided within this application.  The Customer also agrees that any credit facility granted to them by the Company is personal to them and is not capable of assignment by them whether in whole or in part.
6.         The Company reserves the right to decline a credit application, to limit the extent of credit and/or to withdraw credit facilities at any time.  Should the credit facility be withdrawn, all amounts owed to the company at that time shall become payable within 7 days.  Should the Customer fail to settle their account in full within 7 days of the withdrawal of credit, all amount owed to the company will e deemed to have become overdue and will become subject to he late payments penalties and interest referred to in its terms of trade.
PAYMENTS
7.      Unless agreed with the Company in writing, all payment shall be due on the 20^th of the month following the date of invoice.
 

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