BROTHERS CONSTRUCTION GROUP
TERMS & CONDITIONS OF TRADE

  1. Definitions

    1. “Contractor” means Brothers Construction Group Limited, its successors and assigns or any person acting on behalf of and with the authority of Brothers Construction Group Limited.

    2. “Client” means the person/s ordering the Works as specified in any invoice, document or order, and if there is more than one Client is a reference to each Client jointly and severally.

    3. “Works” means all Works or Materials supplied by the Contractor to the Client at the Client’s request from time to time (where the context so permits the terms ‘Works’ or ‘Materials’ shall be interchangeable for the other).

    4. “Worksite” means the land (or that part of the land) that the Contractor reasonably needs to occupy in order to carry out and practically complete the Works required under this contract.

    5. “Price” means the Price payable (plus any Goods and Services Tax (GST) where applicable) for the Works as agreed between the Contractor and the Client in accordance with clause 5 below

  1. Acceptance

    1. The Client is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Client places an order for or accepts delivery of any Works.

    2. These terms and conditions may only be amended with the consent of both parties in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the Client and the Contractor.

    3. In the event that the Materials and/or Works provided by the Contractor are the subject to payment on behalf of the Client via a third party (including, but not limited to, multiple property owners and/or contributors to any driveway, fence, retaining wall). Irrespective of this clause, the Client acknowledges that at all times they will be responsible for the payment of any monies and agree to honour their obligation for payment in the event that the third party fails to make payment on behalf of the Client.

    4. Any advice, recommendation, information, assistance or service provided by the Contractor in relation to Works provided is given in good faith, is based on the Contractor’s own knowledge and experience and shall be accepted without liability on the part of the Contractor and it shall be the responsibility of the Client to confirm the accuracy and reliability of the same in light of the use to which the Client makes or intends to make of the Works.

  1. Electronic Transactions Act 2002

    1. Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 22 of the Electronic Transactions Act 2002 or any other applicable provisions of that Act or any Regulations referred to in that Act.

  1. Change in Control

    1. The Client shall give the Contractor not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client and/or any other change in the Client’s details (including but not limited to, changes in the Client’s name, address, contact phone or fax number/s, or business practice). The Client shall be liable for any loss incurred by the Contractor as a result of the Client’s failure to comply with this clause.

  1. Price and Payment

    1. At the Contractor’s sole discretion the Price shall be either:

      1. as indicated on invoices provided by the Contractor to the Client in respect of Works performed or Materials supplied; or

      2. the Contractor’s quoted Price (subject to clause 2) which shall be binding upon the Contractor provided that the Client shall accept the Contractor’s quotation in writing within thirty (30) days.

    2. The Contractor reserves the right to change the Price:

      1. if a variation to the Materials which are to be supplied is requested; or

      2. where additional Works are required due to the discovery of hidden or unidentifiable difficulties (including, but not limited to, poor weather, limitations to accessing the site, availability of machinery including crane, hoist or other lifting equipment, obscured building defects, incorrect measurements provided by the Client, safety considerations (discovery of asbestos, etc.), prerequisite work by any third party not being completed, remedial work required due to existing workmanship being of a poor quality or non-compliant to the building code, latent soil conditions,hard rock barriers below the surface or iron reinforcing rods in concrete or hidden pipes and wiring in walls, etc.) which are only discovered on commencement of the Works; or

      3. in the event of increases to the Contractor in the cost of labour or Materials, which are beyond the Contractor’s control.

    3. Variations will be charged for on the basis of the Contractor’s quotation, and will be detailed in writing, and shown as variations on the Contractor’s invoice. The Client shall be required to respond to any variation submitted by the Contractor within ten (10) working days. Failure to do so will entitle the Contractor to add the cost of the variation to the Price. Payment for all variations must be made in full at the time of their completion.

    4. At the Contractor’s sole discretion a deposit may be required.

    5. Time for payment for the Works being of the essence, the Price will be payable by the Client on the date/s determined by the Contractor, which may be:

      1. normally on installation of the Materials, or on Delivery of the Materials, if the agreed order was a supply only order;

      2. by way of instalments/progress payments in accordance with the Contractor’s standard payment schedule, which is:

        1. thirty-five percent (35%) deposit due upon acceptance of the quotation.  The Works will not commence until the Contractor is in receipt of this payment; and

        2. a further payment of thirty-five percent (35%) shall be due upon fifty percent practical completion based on BCG estimation, or alternatively at the six (6) week stage, whichever falls first; and

        3. the final thirty percent (30%) is due on practical completion and/or handover of the Worksite to the Client and payment shall be due within seven (7) days from the date of invoice.

      3. seven (7) days following the date of any invoice given to the Client by the Contractor.

    6. Payment may be made by cash, cheque, bank cheque, electronic/on-line banking, or by any other method as agreed to between the Client and the Contractor.

    7. The Client shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Client by the Contractor nor to withhold payment of any invoice because part of that invoice is in dispute.

    8. Unless otherwise stated the Price does not include GST. In addition to the Price, the Client must pay to the Contractor an amount equal to any GST the Contractor must pay for any supply by the Contractor under this or any other agreement for the sale of the Materials. The Client must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Client pays the Price. In addition, the Client must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.

  1. Provision of the Works

    1. Subject to clause 2 it is the Contractor’s responsibility to ensure that the Works start as soon as it is reasonably possible.

    2. The Works’ commencement date will be put back and the completion date extended by whatever time is reasonable in the event that the Contractor claims an extension of time (by giving the Client written notice) where completion is delayed by an event beyond the Contractor’s control, including but not limited to any failure by the Client to:

      1. make a selection; or

      2. have the site ready for the Works; or

      3. notify the Contractor that the site is ready.

    3. The Contractor may deliver the Works by separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.

    4. Any time specified by the Contractor for delivery of the Works is an estimate only and the Contractor will not be liable for any loss or damage incurred by the Client as a result of delivery being late. However both parties agree that they shall make every endeavour to enable the Works to be supplied at the time and place as was arranged between both parties. In the event that the Contractor is unable to supply the Works as agreed solely due to any action or inaction of the Client, then the Contractor shall be entitled to charge a reasonable fee for re-supplying the Works at a later time and date, and/or for storage of the Materials.

  1. Risk

    1. If the Contractor retains ownership of the Materials under clause 14 then:

      1. where the Contractor is supplying Materials only, all risk for the Materials shall immediately pass to the Client on delivery and the Client must insure the Materials on or before delivery. Delivery of the Materials shall be deemed to have taken place immediately at the time that either;

        1. the Materials are delivered by the Contractor or the Contractor’s nominated carrier to the Client’s nominated delivery address (even if the Client is not present at the address).

      2. where the Contractor is to both supply and install Materials then the Contractor shall maintain a contract works insurance policy until the Works are completed. Upon completion of the Works all risk for the Works shall immediately pass to the Client.

    2. Notwithstanding the provisions of clause 1 if the Client specifically requests the Contractor to leave Materials outside the Contractor’s premises for collection or to deliver the Materials to an unattended location then such materials shall always be left at sole risk of the Client and it shall be the Client’s responsibility to ensure the Materials are insured adequately or at all. In the event that such Materials are lost, damaged or destroyed then replacement of the Materials shall be at the Client’s expense.

    3. The Client acknowledges that Materials (including but not limited to paint, timber, granite, tiles & concrete) supplied may exhibit variations in shade tone, colour, texture, surface and finish, and may fade or change colour over time. The Contractor will make every effort to match batches of product supplied in order to minimise such variations but shall not be liable in any way whatsoever where such variations occur.

    4. The Client accepts that where earthmoving or excavation work has been provided by a third party engaged by the Client and such work is found to be defective or not up to standard, then the Contractor reserves the right to charge a variation to remedy such work.

    5. The Contractor shall not be held liable for any costs, losses or damages where there are delays to pre-constructions work not being completed by either third parties or circumstances beyond the Contractor’s control.

    6. Where the Client has supplied materials for the Contractor to complete the Works, the Client acknowledges that he accepts responsibility for the suitability of purpose, quality and any faults inherent in the materials. The Contractor shall not be responsible for any defects in the Works, any loss or damage to the materials (or any part thereof), howsoever arising from the use of materials supplied by the Client.

    7. Where the Client has provided instructions or specifications for the Contractor to complete the Works (including, but not limited to, any requested variation to the original design), then the Contractor shall accept no liability whatsoever for the finished Works being deemed as unsatisfactory to the Client.

    8. The Client acknowledges that, under no circumstances, will the Contractor handle removal of asbestos

    9. Accuracy of Clients Plans – the Contractor shall be entitled to rely on the accuracy of any plans, specifications and other information provided by the Client.  The Client acknowledges and agrees that in the event that any of this information provided by the Client is inaccurate, the Contractor accepts no responsibility for any loss, damages, or costs however resulting from these inaccurate plans, specifications or other information.

    10. Accuracy of Measurements for Orders – in the event the Client gives information relating to measurements and quantities of Materials required in completing the Works, it is the Client’s responsibility to verify the accuracy of the measurements and quantities, before the Client or the Contractor places an order based on these measurements and quantities. the Contractor accepts no responsibility for any loss, damages, or costs however resulting from the Client’s failure to comply with this clause.

    11. Painting

      1. the Contractor shall not be liable for inferior existing paintwork where the Contractor’s paint has bonded to the existing paintwork and weakened the previous paint causing any kind of flake, crack or blemish.

      2. the Contractor shall not be held liable for the quality of the works if the Client does not follow the Contractor’s recommendations as to the number of coats of paint required to obtain the final finish if the Client chooses to accept a reduced Price based on fewer coats of paint.

      3. the Contractor shall not be liable whatsoever for any loss or damage to the works (including, but not limited to, painted surfaces) that is caused by any other tradesmen.

    12. Concreting

      1. where the Contractor gives advice or recommendations to the Client, or the Client’s agent, regarding the suitability of the worksite for the laying of concrete slabs, foundations or similar works and such advice or recommendations are not acted upon then the Contractor shall require the Client or their agent to authorise commencement of the works in writing. the Contractor shall not be liable in any way whatsoever for any damages or losses that occur after any subsequent commencement of the works.

      2. the Contractor gives no guarantee (expressed or implied) as to the length of time the curing process will take and/or against cracking of concrete that may occur naturally in the Works such as:

        1. hairline cracking of paving and grout; or

        2. damage caused by contact with chemicals, solvents, oils or any other substances; or

        3. the affects by elements such as heat exposure or wet weather conditions that prolong the curing process.

      3. the Client acknowledges and agrees that it is their responsibility to organise and be liable for all costs associated with protecting the concrete and shall take all reasonable precautions to protect against destruction or damage by way of vandalism. In the event that the concrete is destroyed or damaged due to vandalism then the cost of re pair or replacement shall be borne by the Client.

      4. the Contractor shall not be liable for any defect in the Works if the Client does not follow the Contractor’ recommendation to:

        1. water the concrete for a periodically to limit the risk of possible cracking due to weather conditions;

        2. no foot traffic and/or any vehicles on the concrete for a minimum of forty-eight (48) hours but preferably seven (7) days;

        3. no heavy furniture to be placed on the concrete area for a minimum of twenty-four (24) hours.

      5. The Client shall supply an area suitable for washing out the Contractor’ equipment and for depositing all unused concrete and slurry.

    13. Fencing

      1. the Client must be on site to supervise the marking out of the fence line, placement of boundary pegs and during the installation of the fence. If the Client fails to comply with this clause, then the Contractor accepts no responsibility for installation decisions that need to be made by the Contractor in the Client’s absence.

      2. the Client acknowledges that it is their responsibility to remove any existing fence (including existing footings), trees, vines and shrubs to allow the Contractor clear access along the proposed fence line prior to commencement of work by the Contractor unless otherwise agreed in writing between the Contractor and the Client.

      3. where fencing is installed on a retaining wall the Contractor shall not be liable for any movement in the fence due to consolidation, or the movement of soil or any other component of the retaining wall.

      4. the Contractor shall not be responsible for digging land out under fence lines nor removal of soil from the work site.

      5. the Contractor reserves the right to touch-up all Materials supplied and installed on the work site to rectify minor blemishes or damage to paintwork.

    14. Flooring

      1. the Contractor will not accept responsibility for any damage to the floor due to microenvironments caused by air-conditioning, heating or large expanses of glass windows without curtains or blinds.

      2. whilst the Contractor will take all due care to avoid contamination of the finished surface, the Contractor accepts no responsibility for contamination by natural contaminates such as dust or hair which may be present at the work site.

      3. the Contractor will only inspect or view a timber floor from a standing position, as this is generally how you will be living on it. Minor marks or slight imperfections in the floor finish that can only be viewed from a crouching or kneeling position will not be considered defects.

      4. it is the Client’s responsibility to:

        1. remove all existing floor coverings, tacks and staples;

        2. fully disclose any information that may affect the Contractor’ installation procedures (including, but not limited to, disclosing known breaks or tears in the membrane, extensions of existing slabs, thickened beams, curing compounds that may have been used, or the use of concrete over 25mpa);

        3. ensure the sub-floor is adequately ventilated and is structurally sound;

        4. ensure that the levels of the sub-floor are satisfactory as the floor coverings can only follow the contours of the sub-floor and will not correct unevenness;

        5. extinguish all naked flames prior to coating including, but not limited to, pilot lights, heaters, etc.;

        6. ensure that full and final lighting as designed for the completed project is fully operational prior to the Works commencing, and are made available for use at no cost for the duration of the Work. Any costs incurred by the Contractor will be invoiced to the Client as per clause 2(c) should this requirement not be met.

      5. Timber Materials

        1. timber is a hydroscopic material subject to expansion and contraction, therefore the Contractor will accept no responsibility for gaps that may appear in the flooring during prolonged dry periods and/or damage resulting from excessive moisture, caused by abnormal circumstances beyond the control of the Contractor, such as burst water pipes.

        2. the Client acknowledges that Materials supplied may:

          1. expand, contract or distort as a result of exposure to heat, cold, weather; and

          2. mark or stain if exposed to certain substances; and

          3. be damaged or disfigured by impact or scratching.

        3. Carpet Clauses

          1. whilst carpet manufacturers make every effort to match dye lots, colours or shade may vary between batches of product and/or between sales samples and actual product supplied; and

          2. carpet manufacturers cannot guarantee to produce perfectly uniform patterned product, therefore there is no guarantee that patterned product will match perfectly when installed; and

          3. the installation process for carpet may require seams and cross-joins and that the appearance of these may be affected by light source and in particular the construction of the chosen product.

        4. Vinyl or Cork Tile Flooring Risk

The Client acknowledges and agrees that the Contractor shall not be liable for any loss, damages or costs however arising in the event that:

  1. a heavy or sharp object is dropped or falls on the vinyl, as vinyl will show scratches and will get cut as it is a soft and flexible Good; or

  2. an object is dragged across it as vinyl can rip and tear; or

  3. the vinyl discolours or bubbles in areas due to exposure to extreme heat (including, but not limited to, conservatories and floor to ceiling windows).

  4. The Contractor does not recommend vinyl to be installed over a floor that is a combination of wood and concrete, or expansion joints in concrete floors, as any movement, joint, seams in bison board, or thin line board will show through the vinyl.

  5. The Client acknowledges and agrees that vinyl will not fully seal a floor around the edges particularly around showers or baths; the Client also agrees water can get underneath and therefore bubble and/or discolour the vinyl. The Contractor shall not be held liable for any loss, damages or costs however arising due to the same.

  6. The Contractor hereby requests the Client to remove any and all appliances in the installation area prior to the commencement of any Works. The Client acknowledges and agrees that the Contractor shall not be held liable for any loss, damages or costs arising due to the Client’s failure to comply with this clause.

  7. The Contractor shall advise the Client if the Contractor believes that there are any issues with the sub floor (including, but not limited to, moisture problems which may cause the vinyl to bubble and discolour) however the Client acknowledges that it is not always possible to identify such problems therefore the Client agrees that the Contractor shall not be held liable in any way whatsoever should any such issue go undetected causing damage to the Materials.

  8. The Client acknowledges that whilst floor levelling compound and floor preparation may help smooth out rough floors; this will not necessarily level a floor.

  9. Tiling

    1. the Contractor gives no guarantee (expressed or implied) against crazing, cracking, chipping or scratching that may occur that is beyond the Contractor’ control due to the nature of the product at the time of installation, therefore it is recommended that the Client allows for such breakages.

    2. the Contractor will accept no responsibility for tiles that have already been affixed.

  1. Client’s Responsibilities

    1. It is the intention of the Contractor and agreed by the Client that:

      1. it is the responsibility of the Client to provide and have erected scaffolding to enable the Works to be undertaken (where in the Contractor’ opinion it is deemed necessary). It is also agreed that all scaffolding erected will comply with industry safety standards and that any person erecting the scaffolding shall be suitably qualified to ensure its safe and proper erection and where necessary shall hold a current certificate of competency and/or be fully licensed;

      2. the Client agrees to remove (or provide adequate dustsheets to protect the Client’s) furniture, furnishings or personal goods from the vicinity of the Works and agrees that the Contractor shall not be liable for any damage attributed to dust or damage caused by any sanding process through the Client’s failure to comply with this clause. Flaking or crumbing walls should be temporarily covered by the Client, until the coatings are dry;

      3. extinguish all naked flames prior to coating including but not limited to pilot lights heaters etc;

      4. supply power to within 8 metres of the project;

      5. ensure that full and final lighting as designed for the completed project is fully operational prior to sanding Works commencing, and are made available for use at no cost for the duration of the project. Any costs incurred by the Contractor will be invoiced to the Client should this requirement not be met.

  1. Surplus Materials

    1. Unless otherwise stated elsewhere in this contract:

      1. demolished Materials remain the Client’s property; and

      2. Materials which the Contractor brings to the site which are surplus remain the property of the Contractor.

  1. Site Access and Condition

    1. It is the intention of the Contractor and agreed by the Client that:

      1. the Client shall ensure that the Contractor has clear and free access to the work site at all times to enable them to undertake the Works. the Contractor shall not be liable for any loss or damage to the site (including, without limitation, damage to pathways, driveways and concreted or paved or grassed areas) unless due to the negligence of the Contractor; and

      2. it is the Client’s responsibility to provide the Contractor, while at the site, with adequate access to available water, electricity, toilet and washing facilities.

  1. Underground Locations

    1. Prior to the Contractor commencing any work the Client must advise the Contractor of the precise location of all underground services on the site and clearly mark the same. The underground mains & services the Client must identify include, but are not limited to, electrical services, gas services, sewer services, pumping services, sewer connections, sewer sludge mains, water mains, irrigation pipes, telephone cables, fibre optic cables, oil pumping mains, and any other services that may be on site.

    2. Whilst the Contractor will take all care to avoid damage to any underground services the Client agrees to indemnify the Contractor in respect of all and any liability claims, loss, damage, costs and fines as a result of damage to services not precisely located and notified as per clause 1.

  1. Compliance with Laws

    1. The Client and the Contractor shall comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities that may be applicable to the Works.

    2. The Client shall obtain (at the expense of the Client) all licenses and approvals that may be required for the Works.

    3. The Client agrees that the site will comply with any works health and safety laws in regards to WorkSafe guidelines relating to building/construction sites and any other relevant safety standards or legislation.

  1. Insurance

    1. The Contractor shall have public liability insurance of at least two million dollars ($2m). It is the Client’s responsibility to ensure that they are similarly insured.

  1. Title

    1. The Contractor and the Client agree that ownership of the Materials shall not pass until:

      1. the Client has paid the Contractor all amounts owing to the Contractor; and

      2. the Client has met all of its other obligations to the Contractor.

    2. Receipt by the Contractor of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised.

    3. It is further agreed that:

      1. until ownership of the Materials passes to the Client in accordance with clause 1 that the Client is only a bailee of the Materials and unless the Materials have become fixtures must return the Materials to the Contractor on request.

      2. the Client holds the benefit of the Client’s insurance of the Materials on trust for the Contractor and must pay to the Contractor the proceeds of any insurance in the event of the Materials being lost, damaged or destroyed.

      3. the production of these terms and conditions by the Contractor shall be sufficient evidence of the Contractor’s rights to receive the insurance proceeds direct from the insurer without the need for any person dealing with the Contractor to make further enquiries.

      4. the Client must not sell, dispose, or otherwise part with possession of the Materials other than in the ordinary course of business and for market value. If the Client sells, disposes or parts with possession of the Materials then the Client must hold the proceeds of any such act on trust for the Contractor and must pay or deliver the proceeds to the Contractor on demand.

      5. the Client should not convert or process the Materials or intermix them with other goods but if the Client does so then the Client holds the resulting product on trust for the benefit of the Contractor and must sell, dispose of or return the resulting product to the Contractor as it so directs.

      6. unless the Materials have become fixtures the Client irrevocably authorises the Contractor to enter any premises where the Contractor believes the Materials are kept and recover possession of the Materials.

      7. the Contractor may recover possession of any Materials in transit whether or not delivery has occurred.

      8. the Client shall not charge or grant an encumbrance over the Materials nor grant nor otherwise give away any interest in the Materials while they remain the property of the Contractor.

      9. the Contractor may commence proceedings to recover the Price of the Materials sold notwithstanding that ownership of the Materials has not passed to the Client.

  1. Personal Property Securities Act 1999 (“PPSA”)

    1. Upon assenting to these terms and conditions in writing the Client acknowledges and agrees that:

      1. these terms and conditions constitute a security agreement for the purposes of the PPSA; and

      2. a security interest is taken in all Materials and/or collateral (account) – being a monetary obligation of the Client to the Contractor for Works – that have previously been supplied and that will be supplied in the future by the Contractor to the Client.

    2. The Client undertakes to:

      1. sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which the Contractor may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register;

      2. indemnify, and upon demand reimburse, the Contractor for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register or releasing any Materials charged thereby;

      3. not register, or permit to be registered, a financing statement or a financing change statement in relation to the Materials and/or collateral (account) in favour of a third party without the prior written consent of the Contractor; and

      4. immediately advise the Contractor of any material change in its business practices of selling Materials which would result in a change in the nature of proceeds derived from such sales.

    3. The Contractor and the Client agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms and conditions.

    4. The Client waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA.

    5. Unless otherwise agreed to in writing by the Contractor, the Client waives its right to receive a verification statement in accordance with section 148 of the PPSA.

    6. The Client shall unconditionally ratify any actions taken by the Contractor under clauses 1 to 15.5.

  1. Security and Charge

    1. In consideration of the Contractor agreeing to supply the Works, the Client charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Client either now or in the future, to secure the performance by the Client of its obligations under these terms and conditions (including, but not limited to, the payment of any money).

    2. The Client indemnifies the Contractor from and against all the Contractor’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising the Contractor’s rights under this clause.

    3. The Client irrevocably appoints the Contractor and each director of the Contractor as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 16 including, but not limited to, signing any document on the Client’s behalf.

  1. Client’s Disclaimer

    1. The Client hereby disclaims any right to rescind, or cancel any contract with the Contractor or to sue for damages or to claim restitution arising out of any inadvertent misrepresentation made to the Client by the Contractor and the Client acknowledges that the Works are bought relying solely upon the Client’s skill and judgment.

  1. Defects and Returns

    1. The Client shall inspect the Materials on delivery and shall within seven (7) days of delivery (time being of the essence) notify the Contractor of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Client shall afford the Contractor an opportunity to inspect the Materials within a reasonable time following delivery if the Client believes the Materials are defective in any way. If the Client shall fail to comply with these provisions the Materials shall be presumed to be free from any defect or damage. For defective Materials, which the Contractor has agreed in writing that the Client is entitled to reject, the Contractor’s liability is limited to either (at the Contractor’s discretion) replacing the Materials or repairing the Materials.

    2. Materials will not be accepted for return other than in accordance with 1 above.

    3. Non-stocklist items or Materials made to the Client’s specifications are under no circumstances acceptable for credit or return.

  1. Warranties

    1. Subject to the conditions of warranty set out in clause 2 the Contractor warrants that if any defect in any workmanship of the Contractor becomes apparent and is reported to the Contractor within twelve (12) months of the date of delivery in respect of any defects in accordance with the Building Act 2004 (time being of the essence) then the Contractor will either (at the Contractor’s sole discretion) replace or remedy the workmanship.

    2. The conditions applicable to the warranty given by clause 1 are:

      1. the warranty shall not cover any defect or damage which may be caused or partly caused by or arise through:

        1. failure on the part of the Client to properly maintain any Materials; or

        2. failure on the part of the Client to follow any instructions or guidelines provided by the Contractor; or

        3. any use of any Materials otherwise than for any application specified on a quote or order form; or

        4. the continued use of any Materials after any defect becomes apparent or would have become apparent to a reasonably prudent operator or user; or

        5. fair wear and tear, any accident or act of God.

      2. the warranty shall cease and the Contractor shall thereafter in no circumstances be liable under the terms of the warranty if the workmanship is repaired, altered or overhauled without the Contractor’s consent.

      3. in respect of all claims the Contractor shall not be liable to compensate the Client for any delay in either replacing or remedying the workmanship or in properly assessing the Client’s claim.

    3. For Materials not manufactured by the Contractor, the warranty shall be the current warranty provided by the manufacturer of the Materials. The Contractor shall not be bound by nor be responsible for any term, condition, representation or warranty other than that which is given by the manufacturer of the

  1. Consumer Guarantees Act 1993

    1. If the Client is acquiring Materials for the purposes of a trade or business, the Client acknowledges that the provisions of the Consumer Guarantees Act 1993 do not apply to the supply of Materials by the Contractor to the Client.

  1. Intellectual Property

    1. The Client warrants that all designs, specifications or instructions given to the Contractor will not cause the Contractor to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify the Contractor against any action taken by a third party against the Contractor in respect of any such infringement.

    2. The Client agrees that the Contractor may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings, plans or products which the Contractor has created for the Client.

  1. Default and Consequences of Default

    1. Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at the Contractor’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.

    2. If the Client owes the Contractor any money the Client shall indemnify the Contractor from and against all costs and disbursements incurred by the Contractor in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, the Contractor’s collection agency costs, and bank dishonour fees).

    3. Further to any other rights or remedies the Contractor may have under this contract, if a Client has made payment to the Contractor, and the transaction is subsequently reversed, the Client shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by the Contractor under this clause 22, where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Client’s obligations under this agreement.

    4. Without prejudice to any other remedies the Contractor may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions the Contractor may suspend or terminate the supply of Works to the Client. The Contractor will not be liable to the Client for any loss or damage the Client suffers because the Contractor has exercised its rights under this clause.

    5. Without prejudice to the Contractor’s other remedies at law the Contractor shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to the Contractor shall, whether or not due for payment, become immediately payable if:

      1. any money payable to the Contractor becomes overdue, or in the Contractor’s opinion the Client will be unable to make a payment when it falls due;

      2. the Client has exceeded any applicable credit limit provided by the Contractor;

      3. the Client becomes insolvent or bankrupt, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or

      4. a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.

  1. Cancellation

    1. Without prejudice to any other remedies the Contractor may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions the Contractor may suspend or terminate the supply of Works to the Client. The Contractor will not be liable to the Client for any loss or damage the Client suffers because the Contractor has exercised its rights under this clause.

    2. The Contractor may cancel any contract to which these terms and conditions apply or cancel delivery of Works at any time before the Works are commenced by giving written notice to the Client. On giving such notice the Contractor shall repay to the Client any sums paid in respect of the Price, less any amounts owing by the Client to the Contractor for Works already performed. The Contractor shall not be liable for any loss or damage whatsoever arising from such cancellation.

    3. In the event that the Client cancels the delivery of Works the Client shall be liable for any and all loss incurred (whether direct or indirect) by the Contractor as a direct result of the cancellation (including, but not limited to, any loss of profits).

    4. Cancellation of orders for products made to the Client’s specifications, or for non-stocklist items, will definitely not be accepted once production has commenced, or an order has been placed.

  1. Privacy Act 1993

    1. The Client authorises the Contractor or the Contractor’s agent to:

      1. access, collect, retain and use any information about the Client;

        1. (including any overdue fines balance information held by the Ministry of Justice) for the purpose of assessing the Client’s creditworthiness; or

        2. for the purpose of marketing products and services to the Client.

      2. disclose information about the Client, whether collected by the Contractor from the Client directly or obtained by the Contractor from any other source, to any other credit provider or any credit reporting agency for the purposes of providing or obtaining a credit reference, debt collection or notifying a default by the Client.

    2. Where the Client is an individual the authorities under clause 1 are authorities or consents for the purposes of the Privacy Act 1993.

    3. The Client shall have the right to request the Contractor for a copy of the information about the Client retained by the Contractor and the right to request the Contractor to correct any incorrect information about the Client held by the Contractor.

  1. Service of Notices

    1. Any written notice given under this contract shall be deemed to have been given and received:

      1. by handing the notice to the other party, in person;

      2. by leaving it at the address of the other party as stated in this contract;

      3. by sending it by registered post to the address of the other party as stated in this contract;

      4. if sent by facsimile transmission to the fax number of the other party as stated in this contract (if any), on receipt of confirmation of the transmission;

      5. if sent by email to the other party’s last known email address.

    2. Any notice that is posted shall be deemed to have been served, unless the contrary is shown, at the time when by the ordinary course of post, the notice would have been delivered.

  1. Dispute Resolution

    1. All disputes and differences between the Client and the Contractor touching and concerning this agreement shall be referred to arbitration under a single arbitrator agreed upon by both parties, or failing agreement, by two arbitrators (one to be appointed by each party) and their umpire (appointed by them prior to arbitration), such arbitration to be carried out in accordance with provisions of the Arbitration Act 1996.

  1. Construction Contracts Act 2002

    1. The Client hereby expressly acknowledges that:

      1. the Contractor has the right to suspend work within five (5) working days of written notice of its intent to do so if a payment claim is served on the Client, and:

        1. the payment is not paid in full by the due date for payment and no payment schedule has been given by the Client; or

        2. a scheduled amount stated in a payment schedule issued by the Client in relation to the payment claim is not paid in full by the due date for its payment; or

        3. the Client has not complied with an adjudicator’s notice that the Client must pay an amount to the Contractor by a particular date; and

        4. the Contractor has given written notice to the Client of its intention to suspend the carrying out of construction work under the construction contract.

      2. if the Contractor suspends work, it:

        1. is not in breach of contract; and

        2. is not liable for any loss or damage whatsoever suffered, or alleged to be suffered, by the Client or by any person claiming through the Client; and

        3. is entitled to an extension of time to complete the contract; and

        4. keeps its rights under the contract including the right to terminate the contract; and may at any time lift the suspension, even if the amount has not been paid or an adjudicator’s determination has not been complied with.

      3. if the Contractor exercises the right to suspend work, the exercise of that right does not:

        1. affect any rights that would otherwise have been available to the Contractor under the Contractual Remedies Act 1979; or

        2. enable the Client to exercise any rights that may otherwise have been available to the Client under that Act as a direct consequence of the Contractor suspending work under this provision.

  1. General

    1. The failure by either party to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect that party’s right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.

    2. These terms and conditions and any contract to which they apply shall be governed by the laws of New Zealand and are subject to the jurisdiction of the Auckland Courts of New Zealand.

    3. The Contractor shall be under no liability whatsoever to the Client for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by the Contractor of these terms and conditions (alternatively the Contractor’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Works).

    4. Neither party shall assign or sub-contract all or any part of their rights and obligations under this agreement without the written consent of the other party.

    5. The Client agrees that the Contractor may amend these terms and conditions by notifying the Client in writing. These changes shall be deemed to take effect from the date on which the Client accepts such changes, or otherwise at such time as the Client makes a further request for the Contractor to provide Works to the Client.

    6. 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.

    7. Both parties warrant that they have the power to enter into this agreement and have obtained all necessary authorisations to allow them to do so, they are not insolvent and that this agreement creates binding and valid legal obligations on them.