Terms of Trade – Comag Limited
1.1 “Comag” means Comag Limited and it’s employees, authorised subcontractors or agents.
1.2 “Customer” means the Customer, any person acting on behalf of and with the authority of the Customer, or any person purchasing products
or services from Comag.
1.3 “Goods” means all products and materials supplied by Comag to the Customer at any time. This includes goods listed on any invoice, as
part of a quotation or estimate, advice or plans provided to the Customer.
1.4 “Services” means all services provided by Comag to the Customer including consultation, quotation, compliance, installation, testing, advice
1.5 “Price” means the price payable for the Goods and/or Services. If not specifically stated all prices exclude GST.
2.1 The Customer is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms of trade once the
Customer requests or instructs Comag to provide Goods or Services.
2.2 These terms of trade replace any previous terms of trade or contract with existing Customers of Comag.
3.1 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. Comag is not liable for delay or failure to provide Goods and Services if the cause is
beyond Comag’s control.
3.2 The failure by either party to enforce any of these terms of trade shall not be treated as a waiver of that provision. Subsequently either party
may choose to enforce a previously unenforced provision or right under these terms of trade.
3.3 If any term of trade becomes invalid, illegal or unenforceable then the validity, legality and enforceability of the remaining provisions will not
be affected or impaired.
3.4 Both parties affirm that they have the authority to approve these terms of trade and have obtained all necessary authorisations to allow them
to do so. Both parties confirm they are not insolvent and these terms creates binding and valid legal obligations on them.
3.5 Any variation or amendment to these terms must be agreed by both parties in writing and signed by each party.
3.6 Comag shall not be bound by any error or omission made on any invoice, quotation, estimate or any other document issued by Comag.
4. Collection and Use of Information
4.1 The Customer authorises Comag to collect, store and use any information about the Customer for the purpose of assessing the Customer’s
credit worthiness, enforcing these terms of trade or for marketing and promotions.
5. Change in Control
5.1 The Customer shall give Comag at least 7 days prior written notice of any change of property ownership or a change in the Customer entity
ownership. This includes providing notice of any change in the Customer’s address and contact details.
6.1 Where a quotation has been provided for the supply of Goods or Services, that quotation remains valid for 30 days. Comag may withdraw
the quotation at any time before acceptance is provided by the Customer.
6.2 The Customer may accept the quote verbally or in writing.
7. Price and Payment
7.1 The Price is either as shown on an invoice provided by Comag to the Customer or as quoted by Comag.
7.2 Comag reserves the right to change the Price in event of a variation to the quotation. The variation will either be separately quoted or the
costs shown as part of an invoice from Comag to the Customer.
7.3 The due date for payment for Goods and Services is 14 days from the date of invoice, at which point the invoice is required to be paid in full.
Progress claim invoices are payable 20 working days following invoice in accordance with s18 of the Construction Contracts Act 2002.
7.4 Should the Customer disagree with the amount charged in an invoice the Customer is required to advise Comag of their dispute either in
writing or verbally prior to the due date for payment.
7.5 Comag accepts payment by direct credit, cheque or by EFTPOS. Payment by credit card will not be accepted for quoted work. Payment by
credit card is accepted for non-quoted Goods or Services but may attract a surcharge at Comag’s discretion.
7.6 Payment of an invoice may be subject to retention by the Customer as prior agreed between Comag and the Customer. Comag requires
these retention funds to held by the Customer in accordance with s18 of the Construction Contracts Act 2002. Following the maintenance
and defect period, Comag may issue a retention claim invoice to the Customer.
7.7 Comag may allocate any payment received from the Customer towards any invoice (including debt collection costs, commission,
administration fees or interest charges). In the case the Customer is in default Comag may retrospectively reallocate payments from the
Customer. In most cases the order of allocation of payments will first be towards collection related costs and then to oldest invoice to most
8. Ownership and Risk
8.1 Ownership of Goods and Services supplied by Comag shall pass to the Customer once the Customer has paid Comag all amounts owing in
full. The Customer agrees to provide access to premises where Goods are located should Comag feel the need to recover them. Where
practical Goods should be kept separate and identifiable until payment is received by Comag.
8.2 All risk for Goods passes to the Customer on delivery and insurance is the responsibility of the Customer from that time. If losses arise from
theft or damage following delivery but prior to ownership passing to the Customer, then Comag is entitled to receive all insurance proceeds
reimbursing the Goods. If the Goods are not covered by insurance, then the Customer remains liable to pay Comag for the Goods supplied.
9. Intellectual Property
9.1 All intellectual property created by Comag, including but not limited to plans and designs, always remain the property of Comag. Comag
may grant use of such intellectual property to the Customer by written consent.
9.2 The Customer authorises use of photography and digital media by Comag when undertaking work. Photographs may be used for
promotional purposes by Comag and internal record keeping. Any objection to use of photography for promotional purposes must be
communicated by the Customer to Comag in writing in order for Comag to remove photography from future promotional use.
9.3 Where Comag has followed a design or instruction provided by the Customer, then the Customer shall indemnify Comag against all
damages, costs or penalties that may arise through breach in patent, trademark, registered design or common law rights.
10. Customer Obligations
10.1 Comag shall be entitled to rely on the accuracy of and should not be obliged to check any plans, specifications and other information
provided by the Customer. Comag is not responsible for any Goods or Services they have provided or additional costs incurred based on
inaccurate information or plans.
10.2 The Customer is responsible for obtaining engineer reports, council consents/permits and compliance to all legislation and regulations
applicable to the work to be carried out by Comag. A minor building consent application may be undertaken by Comag on behalf of the
Customer where agreed and at the Customer’s expense.
10.3 Comag will take care not to damage or disturb underground or hidden services as much as is practical. When requested by Comag the
Customer is to advise and mark the location of all hidden services, including but not limited to power cables, gas lines, sewer services, water
connections and telecommunication cables. The Customer is responsible for any cost, liability or damage to any unmarked or unidentified
hidden services that are damaged or affected by Comag.
10.4 In order to efficiently provide Goods and Services Comag requires the Customer to ensure clear access to the property and any personal
property or furniture to be moved clear of the work area prior to Comag arriving at the property. Additionally, Comag may require access to
electricity, lighting, unloading and lifting facilities, site toilet and washing facilities for hygiene purposes, which is the responsibility of the
Customer to provide.
10.5 The Customer is to provide adequate scaffolding and edge protection where appropriate, unless otherwise agreed.
10.6 On existing buildings and structures if asbestos is suspected the Customer is responsible to confirm whether asbestos is present. Comag
can have a sample tested for the presence of asbestos containing material at the Customer’s expense.
10.7 For health and safety purposes, the Customer is required to inform Comag of any hazards on the site and clearly identify these.
11. Compliance with Laws
11.1 These terms of trade and any contract to which they apply is governed by the laws of New Zealand.
11.2 The Customer and Comag shall comply with the provisions of all statutes, regulations and bylaws of government, local and other public
authorities that may be applicable to the supply of Goods and Services in New Zealand. If and where applicable this shall include but is not
limited to Sale of Goods Act 1908, Fair Trading Act 1986, Privacy Act 1993, Consumer Guarantees Act 1993, Construction Contracts Act
2002 and the Health and Safety at Work Act 2015.
11.3 Where applicable, the Construction Contracts Act 2002 (“CCA”) will apply to the supply of Goods and Services by Comag to the Customer.
Comag has the right to apply s24A of the CCA without being in breach of contract nor liable for any losses or damages suffered by the
Customer as a result.
12. Personal Property Securities Act 1999
12.1 Comag and the Customer acknowledge that these terms constitute a security agreement as defined by the Personal Property Securities Act
1999 (“PPSA”) and that a security interest is taken in all Goods previously supplied and all Goods that will be supplied in the future by
Comag to the Customer.
12.2 The Customer undertakes to:
(a) sign any further documents and provide information to enable Comag to register a financing statement on the Personal Property
(b) indemnify Comag for all expenses incurred in registering or changing a financing statement or financing change statement on the
Personal Property Securities Register;
(c) not register, or permit to be registered, a financing statement for Comag supplied Goods in favour of a third party.
12.3 The Customer waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, 131 and 148 of the PPSA.
13. Default and Consequences of Default
13.1 Overdue invoices shall attract interest accruing daily from the date when the payment becomes due until the date that full payment is
received at a rate of two and a half percent (2.5%) per month (compounding).
13.2 The Customer indemnifies Comag for all costs incurred to recover the outstanding debt including but not limited to debt collection costs,
commission, legal fees and court costs.
13.3 The Customer agrees to pay a monthly $20 administration fee which Comag is entitled to charge on the last day of each month in which the
Customer’s account is in default. This fee is in addition to interest charged on the account.
13.4 Should the Customer’s account be in default at any time or the Customer become insolvent or Comag believes the Customer is unable to
pay their debts then the supply of Goods or Services may cease or payment upfront is required from the Customer before further
performance of the supply of Goods and Services.
14. Cancellation and Returns
14.1 Comag may cancel any contract to which these terms of trade apply by giving written notice to the Customer. Comag will repay any deposit
or monies paid by the Customer for Goods and Services that have not been provided. Comag will not be liable for any loss or damage as a
result of a cancellation.
14.2 The Customer is liable to pay Comag for full costs of Goods and Services provided up to the date of cancellation as well as the cost of any
loss incurred or detrimental effect as a result of the Customer cancelling work that has already commenced.
14.3 Custom made or non-standard Goods cannot be cancelled once an order has been placed nor can they be returned for a refund or credit. In
the case of a cancelled order of Goods Comag will endeavour to limit costs with suppliers however any costs incurred will be payable by the
14.4 Goods returned by the Customer will be provided a credit at Comag’s discretion and providing the Goods are in the same condition as when
supplied and are returned within a reasonable time after they were originally supplied by Comag.
15.1 Goods provided by Comag may be subject to a manufacturer’s warranty and have limitations of liability.
15.2 Comag will remedy any defect in workmanship provided it is reported to Comag within 5 years of the Goods and Services being provided.
15.3 The conditions applicable to the warranty given by clause 15.1 are:
(a) the warranty shall not cover any defect or damage which may be caused or partly caused by or arise through failure on the part of the
Customer to properly maintain the Goods, or to follow any instructions given by Comag, or continued use of Goods after the defect is
identified or known by the Customer or following an accidental damage or an act of God or from reasonable wear and tear.
(b) the warranty shall cease and Comag will not be liable under the terms of the warranty if the workmanship is repaired or altered without
Comag’s prior consent.
(c) Comag will endeavour to resolve any workmanship issue as quickly as possible. Comag will not be liable to compensate the Customer
for any delay to remedy the workmanship issue.
15.4 In cases where a repair has been made instead of replacement of Goods or a temporary repair has been made Comag offers no guarantee
as to how long the repair will last. Comag will endeavour to limit costs to the Customer and in some cases will recommend replacement of
Goods rather than repair.
15.5 If the Customer is acquiring Goods and Services for the purposes of a trade or business, the Customer acknowledges that the provisions of
the Consumer Guarantees Act 1993 do not apply.