In these Terms of Trade, we, us, and our refer to GMS Limited and include our employees. You refers to the Customer in the Order Details. Parties refers to you and us. The agreement between you and us (Contract) is contained exclusively in these Terms of Trade and any subsequent variations agreed to by us in writing. By Placing an Order, you accept the terms of this Contract to the exclusion of any of your terms and all previous representations made to you.

1. Definitions

1.1 In these Terms of Trade:

• Accessions has the meaning ascribed to it in the PPSA, being goods that are installed in, or affixed to other goods.

• Basis for Fee is as specified in the Order Details, if any, subject to clause 3.

• Completion means the completion of the Work.

• Due date means the date on which payment is to be made for the Work as set out in the accepted Order Details.

• Estimated Fee is as specified in the Order Details, subject to clause 3.

• Fee has the meaning given to it in clause 3.

• Fixed Fee is as specified in the Order Details, subject to clause 3.

• Goods means parts and consumables supplied in carrying out the Works.

• Intellectual Property includes all intellectual property rights, including copyright, patent and design rights, drawings, documents, data, ideas, and calculations.

• Order Details means the Order Details in the attached form.

• Payment Terms are specified in the Order Details, if any.

• PPSA means the Personal Property Securities Act 1999.

• Place an Order means your confirmation to us in writing, whether by signing this Contract or by confirmation via email, that you accept our offer to undertake the Work.

1.2 Reference to a party includes that party’s successors, executors, administrators, and permitted assigns.
1.3 Reference to clauses is to clauses in this Contract.
1.4 Reference to a statute includes:

• (a) references to all regulations, orders, rules, or notices made under that statute;
• (b) all amendments to that statute and those regulations, orders, or notices; or
• (c) any statute passed in substitution of that statute.

2. Commencement and Completion

2.1 We must complete the description of the Work, Estimated Fee, Fixed Fee, Basis for Fee, and Payment Terms in the Order Details.
2.2 This Contract is binding on the parties from the date on which you Place an Order. If you Place an Order by email it creates the Contract.
2.3 If we have given you a date for Completion, that date is approximate only. We give no warranty that Completion will occur on or before that date.
2.4 We may unilaterally extend the date for Completion for any reason outside our control.

3. Fee

3.1 You will pay to us:

• (a) the Fee;
• (b) any disbursements incurred by us on your behalf; and
• (c) the cost of any subcontractors engaged by us under clause 6,
  (together Fee).

3.2 We will carry out any variation to the Work or additional work or services to those in the Order Details as both parties agree in writing.
3.3 The Fee replaces any prior quotation or estimate.
3.4 Unless specified otherwise, the Fee and all other amounts payable under this Contract are plus GST and are payable in New Zealand dollars.
3.5 Disbursements incurred by us on your behalf may include a reasonable mark-up by us.

4. Estimated Fee

4.1 The Estimated Fee is an estimate of the anticipated cost for us to complete the Work. The Estimate is subject to clause 5 below.
4.2 We will advise you when 80% of the Estimate has been exceeded and when the Estimate has been reached.

5. Fixed Fee

5.1 Regardless of any Estimated Fee, unless we have agreed on a Fixed Fee, the Fee will be calculated in accordance with the Basis for Fee.

6. Payment Terms

6.1 You will pay the Fee when:

• (a) specified in the Payment Terms, if specified there; or
• (b) if not, on or before the 20th day of the month after we invoice the Fee (Due Date).

6.2. If you do not pay on the Due Date, you will:

• (a) be in default;
• (b) pay us default interest:
  (i) at the rate of 2.5% per month;
  (ii) accruing on a daily basis;
  (iii) from the Due Date to the date of payment in full of the amount due, including any accrued interest.

6.3. Payment of all sums under this Contract will be without set-off or deduction of any kind.
6.4. We may apportion payments to outstanding accounts as we determine in our sole discretion.

7. Variations

7.1 If you require additional work and/or variations to the scope of the Work (Variation), then:

• (a) we will provide a price for the Variation;
• (b) we will advise of any time extension required for the completion of that work;
• (c) if you accept the price and time extension, then the Variation and the agreed price and time extension will be recorded in writing as a variation to the Contract. Email confirmation will be sufficient evidence of your acceptance of the Variation;
• (d) payment for the Variation will be in accordance with clause 6; and
• (e) where a Variation is agreed, the Contract will be deemed to be varied accordingly. These Terms of Trade will continue to apply to the Variation.

7.2 If we do not agree under this clause, the Contract remains unchanged, and the parties remain bound by its terms.

8. Subcontractors

8.1 We may subcontract any part of the Work, but the subcontracting of any part of the Work will not relieve us from any obligation to you under this Contract.
8.2 Any subcontractor we engage will be responsible to and paid by us. The subcontractor’s fees will be charged to you as part of the Fee.
8.3 Any subcontractor or consultant you engage directly will be responsible to and paid by you. Our responsibility to you for this subcontractor or consultant is limited to coordinating their services as required for completion of the Work.

9. Performance of Work

9.1 We will:

• (a) perform the Work with reasonable skill, care, and diligence in a professional manner;
• (b) endeavour to ensure that the Work is performed in accordance with any time frames agreed in writing with you;
• (c) liaise with you during the course of performing the Work in accordance with your reasonable requirements.

9.2 You will give reasonable assistance to enable us to perform the Work by:

• (a) giving clear instructions;
• (b) promptly providing any information or content required from you for us to complete the Work;
• (c) ensuring that the Work and products derived from the Work are fit for the purpose you intend to use them for and meet any appropriate statutory, regulatory, governmental, and industry and environmental controls, standards, or practices.

9.3 If we have given you a time frame for completion of the Work, unless otherwise agreed in writing, this time frame is approximate only and is not deemed to be of the essence of the contract.

10. Limitation of liability

10.1 Except to the extent that the law prevents us from excluding liability, we will not be liable for any loss, damage, or liability of any kind whether:

• (a) suffered or incurred by you or another person;
• (b) in contract or tort, including in negligence or otherwise; or
• (c) the loss or damage arises directly or indirectly from the Work.

10.2 To the extent we are liable for any loss suffered by you arising from breach of these Terms of Trade, the Contract, or for any other reason, our liability is limited to the Fee.

11. Force majeure

11.1 We will not be liable for any delay in Completion or failure to deliver the Work if the cause of the delay or failure is beyond our control.
11.2 Until we are paid in full for the Work including the Goods, you will hold the Goods as our bailee, not remove the Goods from any equipment, machinery or vehicle in which they have been installed and become Accessions or otherwise and do nothing which may adversely affect our rights in the Goods.
11.3 You must immediately inform us of any attempt by a third party to exercise any remedies against the Goods or any equipment, machinery or vehicle in which they have been installed and become Accessions.
11.4 Without limiting any other rights we may have, you will immediately return any Goods which have not become Accessions and provide us with access to any property and equipment, machinery or vehicle for the purposes of uplifting the Goods and removing Accessions if requested by us if you fail to pay us any amount or breach any of your obligations under this Contract.
11.5 This clause 1 creates a security interest, as defined in the PPSA, in all Goods supplied to you under the Contract.

12. Risk in Goods

Risk in Goods passes to you on supply to you if they are not to be installed in any equipment, machinery or vehicle, or upon installation otherwise.

13. Goods Supplied

13.1 Unless otherwise agreed by you, Goods supplied by us in carrying out the Works will be new and we exclude all warranties with regard to these and you will accept them solely with the manufacturer’s standard warranties.
13.2 We retain ownership of Goods until we are paid for our services, notwithstanding that they may have become Accessions as defined in the PPSA.

14. Default

14.1 If:

• (a) you fail to pay any money owing on the Due Date;
• (b) you sell, part with possession, or dispose of any Goods, or any equipment, machinery or vehicle into which they have become Accessions or do anything inconsistent with our ownership of the Goods prior to making payment in full to us;
• (c) the Goods are at risk, as defined in the PPSA;
• (d) we believe you:
  (i) have committed or will commit an act of bankruptcy;
  (ii) have had or are about to have a receiver or liquidator appointed; or
  (iii) are declared insolvent;
• (e) you are otherwise in breach under this Contract; then, in addition to any remedies we have at law, we may do one or more of the following:
• (f) require immediate payment of the Fee;
• (g) charge default interest under clause 6.2;
• (h) enforce any security interest created under this contract including these Terms of Trade;
  (i) enter your property for the purposes of uplifting Goods for which we have not been paid, including Goods which have become Accessions; and/or
  (j) immediately terminate the Contract and Terms of Trade by written notice to you.

15. Exclusion of Consumer Guarantees Act

15.1 You agree for the purposes of section 43 in the Consumer Guarantees Act 1993, that where we supply our services and Goods and they are acquired by you in trade, the Act will not apply and it is fair and reasonable to exclude the provisions in the Act.

16. Intellectual Property

16.1 All Intellectual Property as at the date of these Terms of Trade remains with the owner.
16.2 If any Work is based on your designs, you warrant that the undertaking of the Work by us will not infringe any third party’s Intellectual Property rights. You indemnify us against any loss, liability, costs, and expenses if any other person claims that the Work infringes any patent, copyright, or other rights.
16.3 Subject to clauses 16.1 and Error! Reference source not found., we will remain the exclusive owner everywhere in the world of all Intellectual Property rights and interests in the Work, and any other work we perform for you.
16.4 We will retain exclusive worldwide ownership at all times of our artistic styles, methods of working, techniques, ideas, skills, and know-how.
16.5 You must not attribute the Work to anyone other than us or remove our trade marks, signatures, logos, or similar from our Work.