Monumental and memorial goods (“Goods“) and related labour services (“Services“) supplied by InvoCare New Zealand Limited (the “Company“) are supplied to the customer (including a trustee, executor, administrator or representative, partnership or company) (the “Purchaser“) for sale on the following terms and conditions:
1.1 These terms and conditions, which include the terms set out in an Authority to Supply Monumental Services & Products and Financial Agreement (“Order”), shall apply to all Orders accepted by the Company and shall form the contract between the Company and the Purchaser. These terms and conditions shall prevail, supersede and extinguish all earlier representations, warranties, understandings and agreement, whether oral or written, between the Company and the Purchaser.
1.2 The Purchaser has entered into the contract relying on the Purchaser’s sole judgement and has authority to enter into the contract. The Company enters into the contract between the Company and the Purchaser in good faith reliance on the instructions from the Purchaser. No waiver of any breach or failure to enforce any provision of the contract at any time by the Company will in any way limit or waive the right of the Company to subsequently enforce and compel strict compliance.
1.3 Services: Services shall mean labour service for design, layout and procurement of all necessary materials, services and installation in relation to the Goods, supplied at an hourly rate or at a quoted fixed cost following written instructions or reasonable oral instructions from the Purchaser and the Purchaser shall confirm acceptance of the fixed cost or hourly rate by signing the Order.
2.1 Proof: The Purchaser acknowledges that the initial estimated cost of the Order is an estimate of the cost of the Order prior to confirmation of a proof of the Purchaser’s requirements with respect to the Goods intended to be ordered.
2.2 Following the Purchaser’s approval of a proof of the Purchaser’s Goods Order, the Company will estimate a price for Goods and Services in the Order and the Purchaser will confirm the estimate by signing the Order confirmation. The Purchaser authorises the Company pay all costs (including third party costs) in connection with the Order and to proceed with the design, layout and procurement of all necessary materials and services in relation to the Order.
2.3 No Order may be cancelled without the written consent of the Company, and in such cases the Purchaser will be liable to pay the Company all costs and expenses incurred by the Company in fulfilling the Order to the date of cancellation. If Services, parts and materials cannot be cancelled from the original supplier or manufacturer the Purchaser will be held liable for the cost of those Services, parts and materials.
2.4 The estimated fee noted in the Order may be increased if the Company incurs any cost increases which are beyond its control in the supply, production and delivery of Goods and Services (including increases in parts or products and fluctuations in currency exchange rates) between the date of contract (or, where the contract arises from an Order, the date of the Order) and the date of delivery, where the Company can supply written evidence of such cost increases or if the Purchaser varies or alters its requirements for the Goods and Services. Variations and alterations may result from changes to instructions from the Purchaser requiring a changed basis for the cost of Goods and Services OR additional parts, materials, designs, specifications or permits.
3.1 Delivery of the Goods to the care and control of the Purchaser or the Purchaser’s agent shall constitute delivery. If the Purchaser or the Purchaser’s agent fails to take delivery of the Goods delivery will be deemed to be made at the time that the Purchaser is notified that the Goods are available for delivery. Delivery of Services shall be the completion of labour services required by the Order. Where the Services include installation of Goods, delivery of those Goods shall pass on completion of the installation Services, unless agreed otherwise. The Company will make every effort to ensure that Goods and Services are supplied on time, but will not be responsible for any loss or damage (including any consequential losses) incurred by the Purchaser as a result any delays in delivery.
3.2 Where the Company has performed part or all of the supply of Goods or Services at a time agreed by the Purchaser but where delivery is delayed because of any act, omission or delay by the Purchaser, the Company will require the Purchaser to pay that portion of the contract price which represents the costs incurred by the Company in carrying out the supply of Goods and Services and the Company may at its discretion also charge stand-by costs while the Purchaser remedies the factors causing delay.
4.1 Order payment is to be made by the Purchaser by deposit, bond, or such other payment as agreed between the parties in writing before work will begin. Unless otherwise expressly agreed upon in writing, the Purchaser shall pay the final balance in full on invoice on and or before the earlier of fourteen (14) days following the date an invoice is rendered or on the date the Goods and Services are delivered, such final payment to be made in full without deduction or setoff.
4.2 The Purchaser is required to pay a non-refundable deposit of the estimated Order cost as indicated in our Authority to Supply Monumental Services & Products and Financial Agreement upon confirmation of stone / plaque / rock portion of the Order. The Purchaser shall be required to pay the remainder of the outstanding Order cost, including design, layout and related services, freight and insurance, cemetery permits and installation costs, within 14 days of installation of the Order.
4.3 The Purchaser is liable to pay the minimum layout and design booking charge should the Order be cancelled and is liable for any costs incurred by the Company with respect to the Order prior to its cancellation.
4.4 If payment is not made in full by the due date, the Company is entitled to charge the Purchaser late payment penalties charged and calculated at 1.25% per month on the closing monthly balance including any late payment penalties. The late payment penalty fee has been agreed between the Company and the Purchaser to take into account a genuine pre-estimate of the costs of enforcement, collection costs and additional administration costs. For the avoidance of doubt, no credit is extended in respect of late payment of the account and any late payment penalty fee. The Company may at its option, suspend the sale and secure the Goods in its possession (regardless of the term of the contract) until the overdue amounts are paid in full and or exercise any other rights of the Company under these terms of trade and the Company may charge the Purchaser reasonable storage costs of no less than $10.00 per day for the storage of the Goods from the due date until the earlier of payment being made in full or the Company’s termination of the contract in accordance with these terms of trade.
4.5 If at any time the Company reasonably deems the Purchaser’s credit and payment history to be unsatisfactory, it may require the Purchaser to provide at the Purchaser’s cost, security for payment. The Company may suspend performance of any of its obligations under the contract until such security is provided to the Company’s satisfaction and the Company may require the Purchaser to pay all costs incurred as a result of suspension and re-commencement of supply.
4.6 The Company may require to use any balance of any of the deceased’s pre-paid funeral funds (after payment of funeral costs) to pay the Order partly or in full and the Purchaser hereby authorises the Company so to do.
4.7 The Purchaser acknowledges that the estimated fee recorded on the Order is an estimate only and may be subject to adjustment.
5.1 Risk of any loss, damage or deterioration of or to the Goods shall be borne by the Purchaser from the time of delivery of the Goods.
5.2 The Purchaser acknowledges that it is in possession of the goods solely as a bailee for the Company until payment (as outlined in clause 4) has been made in full to the Company.
6.1 The Purchaser agrees that where the Company supplies intellectual property in the form of patents, trademarks and copyrights or written instructions, drawings, plans, manuals and other technical information the ownership of such intellectual property shall always remain with the Company and the Purchaser further agrees that it shall not use the intellectual property in any manner whatsoever whether in complete form or by way of adaptation or alteration unless the Purchaser has paid the Company in full.
6.2 Where the Company has followed plans, specifications and instructions, being oral or written, provided by the Purchaser, the Purchaser warrants that this will not breach any third party’s intellectual property rights and the Purchaser shall indemnify the Company against all damages, costs and expenses in respect of which the Company may become liable by following such plans, specifications and instructions and including those arising from the infringement of patents, copyrights or trademarks provided by the Purchaser.
7.1 Any variations to the price or terms of supply set out in the contract and in the Order or the Order itself may be agreed between the parties in writing.
8.1 It shall be the sole responsibility of the Purchaser that property surfaces under the ownership, care or responsibility of the Purchaser or the cemetery are of adequate strength to support the installation ordered. The Purchaser further agrees that it will not hold the Company liable in any way for damage to property surfaces, footpaths, crossings or any other part of the property as a result of failure of the Purchaser’s responsibility in this regard.
8.2 Any warranty on parts supplied by the Company as a constituent part of the Goods but not manufactured by the Company shall be the warranty of the original manufacturer to the extent that such warranty is assignable to the Purchaser. To avoid doubt, the Company does not warrant any parts supplied by a third party manufacturer.
8.3 The Company shall not be liable for any loss of profits or any consequential, indirect or special loss, damage or injury of any kind whatsoever suffered by the Purchaser or any other person arising directly or indirectly from any breach of any of the Company’s obligations arising under or in connection with the contract including delays in the delivery of Goods or Services or from any cancellation of the contract or from any negligence, misrepresentation or other act or omission on the part of the Company, its servants, agents or contractors.
8.4 The Company shall not be liable for any breach or failure to perform any of its obligations under the contract where such breach or failure is caused by reasons beyond the Company’s reasonable control. The occurrence of such an event shall not give the Purchaser a right of cancellation of the contract or any Orders made by the Purchaser under the contract.
8.5 Where the Goods and Services are supplied to a consumer as that term is defined in the Consumer Guarantees Act 1993, the provisions of the Consumer Guarantees Act 1993 apply.
8.6 Notwithstanding anything contained in the contract or in the event that the limitations contained in this section 8 or elsewhere in the contract are not enforceable, the liability of the Company whether in contract or tort or otherwise will in all cases be limited to the price of the Goods and Services excepting to the extent that the provisions of the Consumer Guarantees Act 1993 apply.
8.7 Where these terms of trade conflict with the terms of the Order in respect of the Goods and Services supplied, the terms of the Order will prevail.
9.1 The Company will not accept any claim by the Purchaser in relation to damaged or defective Goods where:
(a) the defect or failure is due to or resulting from damage or misuse, negligent maintenance or care while in the possession of the Purchaser, failure to follow care instructions or the Goods have not been used for the purpose for which they were designed, the Goods have been used by persons not competent to use them, or where the Goods have not been installed by the Company or its agents or contractors.
(b) the defect, or failure is due to defective drawings, instructions or plans supplied or confirmed by the Purchaser.
(c) the defect or failure is caused by Purchaser misinterpretation of oral or written instructions for care given by the Company.
(d) the defect or failure is due to acts, defaults or omissions outside the control of the Company (insofar as the Consumer Guarantees Act 1993 does not apply).
10.1 This Agreement may be terminated by the Company immediately without written notice to the Purchaser or liability on the part of the Company, if the Purchaser makes a default in payment or is otherwise in default under the contract in accordance with clause 10.2.
10.2 Default will also mean, if the Purchaser:
(a) fails to make payment in accordance with the Order and terms of trade.
(b) shall commit any act of bankruptcy, or enter into any composition or arrangement with creditors.
(c) where the Purchaser is a Company, do any act which would render it liable to be liquidated or if a resolution is passed or proceedings commenced for the administration or liquidation of the Company or if a Receiver is appointed in respect of all or any assets of the Company.
10.3 No release from obligations. Termination of the contract shall not relieve the Purchaser of its obligations to pay all money owed by it to the Company on any account whatsoever, which money shall be payable immediately notwithstanding that the date for payment of the money may not have arrived. Termination of the contract shall not relieve the Purchaser from liability arising from any antecedent breach of the terms of the contract.
10.4 Immediate Steps Upon Termination. Upon the termination of the contract for any reason, all rights of the Purchaser granted by the contract shall terminate and the Purchaser will not be entitled to receive any rebate or refund of the whole or any part of the money paid pursuant to the contract.
11.1 Where the Goods are supplied to the Purchaser in New Zealand, the Purchaser acknowledges that the contract creates a “security interest” (as that term is defined in the PPSA) in the Goods and the proceeds of sale of the Goods. The Purchaser shall, if requested by the Company, sign any documents, provide all necessary information and do anything else required by the Company to ensure that the security interest is a perfected “purchase money security interest” (as that term is defined in the PPSA).
11.4 The Purchaser waives its right under the PPSA to receive a copy of any “revocation statement” or “financing change statement” (as those terms are defined in the PPSA).
12.1 The Purchaser will not transfer, assign or in any way deal with the benefit or burden of the contract. The Company may in its absolute discretion without the consent of or notice to the Purchaser, assign all or any of the Company’s rights under the contract to any other person.
13.1 The contract will be governed by and construed in accordance with New Zealand law and each party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the Courts of New Zealand in relation to any disputes, actions, suits or proceedings arising out of or in connection with the contract.
14.1 In the event one or more provisions of these terms of trade is declared invalid, void or unenforceable, this shall in no way affect the validity of the other provisions.
15.1 The Purchaser authorises the Company to collect, retain and use any information about the Purchaser, for the purpose of assessing the Purchaser’s credit worthiness, funeral, burial, cremation, memorial, monumental masonry and generally, grief care related purposes including processing your transactions, administering your account, for our own internal purposes (such as statistical records, risk management, staff training and billing), enforcing any rights under the contract or marketing any Goods provided by the Company.
15.2 The Purchaser authorises the Company to disclose any information obtained to any person for the purposes set out in clause 15.1.
15.3 Where the Purchaser is a natural person the authorities under clauses 15.1 and 15.2 are authorities or consents for the purposes of the Privacy Act 1993.
