Services we will supply to you
1. Services
Our services include any works performed or goods/materials to be supplied in connection with Services described in the Quote (these are the Services or the Goods as the context requires).
2. Design
Any additional measurements we need to take to verify the accuracy and suitability of any plans or drawings supplied to us by you, your architect or your main builder are referred to in these terms as a Design. A copy of any Design will be available to you only upon request and only after acceptance of the Quote and these Terms.
3. Subcontractors
Either we or our approved subcontractors will perform the Services for you.
4. Exclusions
All job specific exclusions are listed in our Quote and are incorporated into these Terms.
Your obligations to us
5. Payment of Charges
You must pay the total amount of the charges or meet our time and materials costs
(whichever one applies to your Quote) for the Services stated in our accepted Quote and included in any Variation Order issued after acceptance of the Quote (the Total Price).
6. Progress Payments
If we require it, you agree to pay us the Total Price in instalments at agreed milestones or in agreed frequencies during our performance of the Services (called Progress Payments) at the times and in the amounts set out the Quote. You accept and agree that you will have funds available to meet these Progress Payments and that you cannot defer these to a final lump sum payment on completion unless we agree to this as a Variation.
7. Customer Obligations
You will perform any actions or make any necessary arrangements noted as a ‘customer obligation’ in our Quote. You acknowledge that these must be arranged or carried out in advance of Us starting the Job.
8. Scope Changes to a minimum
You acknowledge and accept that if you request a Variation (such as a change to your selections, the scope or the order of any stage of the works) we may not be able to accommodate this in the timeframe you expect. We ask that you keep scope changes to a minimum to limit any disappointment if we cannot extend your job to meet these change requests.
Our obligations to you
9. Services
We will perform the Services to accepted industry standards including, where applicable, under the Building Act 2004 and the Health and Safety at Work Act 2015.
10. Record of Work
If required by law, we will give you any certificate or similar document as needed to confirm the works are completed.
11. Updates on timing
We will advise you of any anticipated delay to provide a Service. In the event that the Services are not completed by the anticipated or proposed date advised by us, you acknowledge and agree that you shall not be entitled to any damages (liquidated damages, or any other type of damages or costs) in respect of the delay.
12. No exclusivity of our Services
We will be managing multiple jobs to perform work for other clients in addition to the Services to you. We will keep you informed of the dates or times we can attend your Property or site to perform the works. Unless we have expressly agreed in writing, we will not be exclusive to your job and will be under no obligation to attend your site or Property on repeated, concurrent days.
Deposit
13. Deposit and time for payment of Deposit
You agree that payment of the Deposit is required to confirm acceptance of the Quote and that certain amounts may not be refundable if you decide to terminate this Contract prior to us starting the Services (when this might happen is explained in the clauses below).
14. Refund of Deposit
If you decide to terminate this Contract before we commence the Services, we will be entitled to retain the following amounts from the Deposit:
a. the entire amount incurred by us in relation to materials purchased and/or manufactured (whether to custom specifications or not); and
b. an amount equal to 15% of the Total Price quoted to cover our administration and expenses up to and including the date of termination.
15. Balances owing for Custom Materials
In the event you terminate this Contract before we commence the Services and the Deposit amount is insufficient to cover the balance owed for materials made or ordered to custom specifications (Custom Materials), the balance for such Custom Materials will be invoiced to you and is immediately due and payable.
16. Delivery to you of Custom Materials
In the event you terminate this Contract before we commence the Services, the Custom Materials will be delivered to you as you will have paid for them from your Deposit. Full title, risk and ownership of the Custom Materials will pass to you on our delivery of them to your property or otherwise into your possession.
Deposit
17. Variations
We reserve the right to issue a Variation Order to change the Total Price or extend the time to complete the Services in the circumstances which include, but are not limited to, the following:
a. encountering unsuitable ground or overhead obstructions that prevent works; and/or
b. dewatering any mains, ducts or other conduits or channels that may flood or allow water ingress as a result of the works; and/or
c. underground services encountered that were not detected by mark-out plans, cable location, pot holing or hand digging and which affect the performance of the works; and/or
d. encountering hazardous waste or contaminated ground, soil, materials, waste or other surface; and/or
e. discovery of any archaeological or cultural artifacts or remains that fall within the remit of the Heritage New Zealand Pouhere Taonga Act 2014; and/or
f. a change, amendment, alteration, repositioning of Goods, change to selection of Goods or materials, is required or requested after you have accepted our Quote whether or not the Services have commenced; and/or
g. a change to the plans or specifications is made by you or any representative authorised by you
(including architects, structural engineers or other contractor you direct us to take instructions from); and/or
h. where additional works are required due to the discovery of hidden or unidentifiable difficulties. These include, by way of example, poor weather conditions, limitations to accessing the Property or site, obscured building defects that affect the works, latent defects, prerequisite work by a third party not being completed. This is not an exhaustive list and we reserve our right to exercise our reasonable judgment as to what constitutes ‘hidden or unidentifiable difficulties’ based on our industry expertise; and/or
i. increases to us for the cost of labour or materials which are beyond our reasonable control or which we could not have foreseen and priced into the Quote at the time of issue and acceptance; and/or
j. a requirement for us to extend the time to commence the works due to your non-performance of the Customer Obligations; and/or
k. a requirement for us to extend the time it takes to complete the works due to the impact of any other changes listed above or which are a Variation.
18. How we will confirm a Variation
We shall supply you with a written Variation Order stating the changes to the Quote, how the price change has been or will be calculated and state any additional costs to accommodate the Variation. This will be supplemental and in addition to the Quote attached to these Terms.
19. How we charge for a Variation
We will charge for variations on a time and materials basis.
20. Variation becomes part of the Quote
Any Variation Order shall be incorporated into this Contract and any amount payable for that Variation shall be added to the Total Price.
21. Continuation of Services during discovery of a Variation
If the Services have commenced and we identify a scope change that is a Variation but time is of the essence due to weathertightness factors, we will continue to perform the Services to mitigate any risk of damage or defects to any works due to poor weather conditions. You agree to us using our sole discretion to continue with the Services in this way despite there being a Variation identified.
22. How we will confirm a Variation if we need to continue the works that day
We will use all reasonable efforts to contact you to inform you of the Variation event in advance (by phone or text if you are not on site) to discuss and agree the Variation verbally. However, if this is not achievable and we deem it necessary (in our sole discretion) to continue with the Services due to weather tightness or other external demands concerns you agree that this will not invalidate the Variation Order that we issue to you. You further accept and agree that we are entitled to the additional sums (if any) stated in the Variation Order.
23. Consents, approvals or compliance certificates
You must make your own enquiries regarding any local or regional authority approvals or consents for the Services. Unless otherwise agreed in writing, we are entitled to issue our final invoice or payment claim for payment irrespective of whether any certificate of completion has or has not been issued by us, your main contractor or builder. The only exception to this is that we will arrange any close approach consent from an electricity lines distribution company if required.
Invoicing and Payment Claims
24. Time and method for payment
All amounts specified in an invoice will require payment immediately unless we have specified a longer date in writing in our Invoice or Quote (Amounts Owing). We do not offer trade or extended credit terms. We will issue invoices to you by email. You may pay by any of the methods specified on the invoice.
25. No set off or deduction
Payment of Amounts Owing which are due and payable must be made without set-off or deduction of any kind. You also agree that you will not be entitled to withhold payment in respect of any undisputed amount.
26. If you dispute the amount we claim in our invoice
If you receive an invoice and you consider you owe us a lesser amount you must issue a valid payment schedule (a term used in s21 of the Construction Contracts Act 2002) to us within 7 working days of receiving our invoice. If you have not responded with a valid payment claim in writing within this timeframe, we are entitled to treat any amount stated in our invoice as an Amount Owing and it remains immediately due and payable. If you do respond with a payment schedule stating a lesser amount or no amount and we do not agree, we reserve our rights to use the dispute resolution procedures set out at clause 45.
27. Non Payment of Amounts Owing
If you do not pay an Amount Owing by the due date and you have not issued us with any payment schedule (see clause 26 for more information on what you need to do) or any later date we have agreed in writing this becomes an Overdue Amount Owing. After a period of 7 calendar days, we shall have the right to apply late payment interest at a rate of 18% above the standard BNZ bank rate at the time. This shall be calculated daily and compound monthly at that rate if we elect to do this. This applies before and after any judgment (if applicable).
28. Debt collection or recovery costs
If an Overdue Amount Owing remains unpaid for 14 days or more, we reserve our rights to engage the services of a debt collection agency or solicitor to take proceedings to recover the Overdue Amount Owing. You will be liable for the costs incurred by us in the collection of any unpaid amounts including but not limited to legal costs, debt collection fees and internal administration fees.
29. Administration Fees
In the event We are obliged to perform any additional actions to recover any monies owed by You, we reserve the right to apply reasonable administration fees for telephone calls, emails and any in person visits we are required to conduct to recover any Overdue Amount Owing.
30. Suspension of Services for Overdue Amounts Owing
If there is an Overdue Amount Owing and such default continues for 7 calendar days then we shall be entitled to immediately suspend the Services without notice and such suspension shall be on the same basis as if it were a suspension under s24A(2) and (3) of the Construction Contracts Act 2002.
Termination
31. Termination by us
We are committed to delivering an excellent service. However, under some limited circumstances that will result in us not being able to deliver our Service, we may elect to terminate this Contract with you. We will inform you of this in writing.
Termination of this Contract by us is without prejudice to any rights that we may have in respect of this Contract. You shall remain liable for any Amount Owing for Services already performed including any Services which have commenced but have not been completed due one or more of the circumstances listed below:
a. You are in breach of your payment obligations If you fail to pay the Deposit or any other amount that is an Amount Owing; and/or
b. You become insolvent If you become insolvent or bankrupt, convene a meeting with your creditors or make an assignment for the benefit of your creditors or a receiver, manager or liquidator (provisional or otherwise) or similar person is appointed in respect of you or your business or its assets; and/or
c. No access to Property If we or our approved contractors are denied access to or are unable to access the Property in order to carry out the Services for whatever reason. To avoid any doubt, where we or our approved contractors assess that the means of access to the Property is unsafe and would breach the relevant safety requirements under the Health and Safety at Work Act 2015, this is a valid reason for termination if it cannot or will not be remedied by you.
Quality Guarantee
32. Consumer Guarantees Act
If you are a customer in trade or business and the Services acquired from us under this contract are for business purposes, the provisions of the Consumer Guarantees Act 1993 (CGA) shall not apply. Otherwise, the provisions of the CGA shall apply.
33. Defect liability period
If the Services are defective, we will remedy the defect at no cost to you for a period of 24 months (Defect Liability Period) from the date of practical completion of the Services provided you inform us within the Defect Liability Period. This guarantee is in addition to any implied warranties under ss 362l to 362k of the Building Act 2004 and is subject to the exceptions in that Act and those listed in the following clause 34.
34. When we are not liable to remedy a defect
Any workmanship guarantee owed by us to you under relevant laws will not apply where:
a. the fault or defect is not notified to us within the applicable Defect Liability Period; or
b. the fault or defect is a result of:
(i) something done by you or someone else, and not by us or our preferred installers or contractors; or
(ii) you not maintaining the Property in a sound and reasonable condition in such a way that it caused the defect; or
(iii) something beyond human control that occurred after completion of our Services or works, e.g., an extreme weather event or natural disaster or natural event such as an earthquake, lahar or tsunami that causes the defect;
(iv) any part of the Goods installed as part of the Services being misused, abused, neglected or damaged after installation;
(v) the Goods not being maintained in accordance with any care or guarantee documents; or
(vi) the Goods being repaired, modified, reinstalled or repositioned by anyone other than us or our preferred contractor.
35. Manufacturer Warranty claims
If the Defect Liability Period has ended and there is a manufacturer product warranty still available for any component part of the Goods included as part of the Services, you must liaise with the manufacturer for the duration of any guarantee period offered by them.
Risk and Ownership
36. Insurance Risk
We confirm that we hold general liability insurance. All risk in the plant, materials and equipment to supply the Services sits with us during the performance of the Services.
37. Plant and machinery may be left at Site You agree that we may store any Plant or Machinery at your Property during the performance of the Services.
38. Risk passes to you on completion
Upon completion of the Services, if any Goods have been installed at your Property, the risk to insure those Goods shall pass to you as they become fixtures or chattels (as the case may be). However, ownership of the Goods will remain with us until all Amounts Owing on any account whatsoever in relation to Goods or any Services have been paid. Until the Amounts Owing have been paid, you hold the goods as trustee and agent for us.
39. Title to goods
We own the Goods until you have paid for them in full. No beneficial or equitable ownership in the Goods will pass to you until full and final payment of the Total Price has been received by us.
40. Right to enter Property to seize Goods if there are Amounts Owing
If you fail to comply with this Contract in relation to payment of Amounts Owing then we may enter the Property and seize possession of the Goods and retain, sell or otherwise dispose of such Goods.
Limitation of our Liability
41. Delays to Commence
Works If the Services cannot proceed on the scheduled date and time for any reason, we will discuss this with you and this will be a Variation. We exclude liability to you for any claims, losses, damages and costs (direct, indirect or anticipated) incurred by you for the Services not taking place as planned.
42. Damage to your Property
Our total aggregate liability to you arising out of or in connection with the Services whether in contract, any indemnity, tort (including negligence) by statute or otherwise at law or in equity is limited to the Total Price of the Goods or Services or the actual direct costs incurred by you (whichever is the lower amount ). We warrant that we hold appropriate insurance for general liability for this purpose. This obligation will be reduced or eliminated to the extent that your acts or omissions, or any pre-existing condition, latent defect, fault or other defect relating to the Property contributed to such loss or damage.
43. Exclusion of our liability
To the fullest extent permitted by law, and subject to our obligations during the Defect Liability Period or under any applicable law that imposes guarantees on us, we exclude all liability to you for any direct or indirect claims, expenses, losses, damages and costs (including any incidental, special and/or consequential damages or loss of profits, loss of anticipated savings or loss of expenses suffered or incurred by you resulting (either directly or indirectly) in connection with the Services.
44. When limitations of liability cannot apply
These clauses do not limit our liability to the extent that it cannot be limited at law; and/or arises out of or in connection with any willful default, fraud or criminal conduct by us.
Dispute Resolution
45. Dispute Resolution
If you or we consider that a dispute has arisen in relation to any matter governed by this Contract, that party must give the other party written notice outlining the basis of the dispute. The parties must then meet or appoint a third party to assist in the resolution of the dispute. If such a resolution is not achieved, the aggrieved party may refer the dispute for adjudication by the Building Disputes Tribunal. Notwithstanding the existence of a dispute, you must still comply with your obligations to pay us in accordance with the terms of this Contract unless the dispute specifically relates to a disputed amount on an invoice. In that case, you must pay the undisputed portion of that invoice.
Law
46. Governing Law
This Contract shall be governed by the laws of New Zealand and the parties irrevocably submit to the exclusive jurisdiction of the courts of New Zealand.
47. Severability
If and to the extent any provision or part of a provision is illegal or unenforceable, such provision or part of a provision will be severed from this Contract and will not affect the continued operation of the remaining provisions of this Contract.
48. Entire Agreement
This Contract sets out the entire agreement between the parties.
49. This Contract is a construction contract as defined under the Construction Contracts Act 2002.
50. Signing not required
It is not necessary for this Contract to be signed unless we insist on it. You are bound by these terms if you continue to act in a way that is consistent with the arrangement and discussions you have had with us in relation to the Quote and we have incurred time and expense in procuring materials or commenced any part of the Services or works for or if you have paid a Deposit.
51. Electronic Acceptance
The parties agree that any legal requirement may be met by using electronic means in accordance with the Contract and Commercial Law Act 2017. In this clause the term “legal requirement” has the meaning given to it by section 219(2) of the Contract and Commercial Law Act 2017.
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