Terms & Conditions

TERMS OF TRADE

1 Acceptance

Engaging the Contractor to carry out Work or acceptance of a Quote provided by the  Contractor constitutes acceptance by the Client of these terms. These terms will apply to all  services provided by the Contractor (unless otherwise agreed in writing). 

2 Contractor Responsibilities

The Contractor will:

(a) carry out the Work with reasonable skill and care, in accordance with the plans  and specifications (if any), the Building Act 2004, the Building Code and any 

building consents issued in respect of the Work; and

(b) comply with all health and safety legislation in carrying out the Work, including  having all appropriate site documentation carried out and checked on a regular  basis.

3 Client responsibilities

Unless otherwise agreed in writing, the Client is responsible for:

(a) ensuring that all plans and specifications supplied to the Contractor in respect of  the Work are accurate;

(b) providing any materials, plant, and equipment required for the Work expressed  to be ‘client supplied’ or ‘owner supplied’, and ensuring that such materials 

comply with the Building Code and are fit for purpose, and all plant and 

equipment complies with all health and safety legislation, codes and 

requirements;

(c) surveying the Site and advising the Contractor of boundaries and the specific  location of underground utilities;

(d) ensuring that it has sufficient title or other legal entitlement to the Site to allow  the Work to be carried out, and that the Contractor has sufficient access to the  Site to carry out the Work. If the Client fails to provide sufficient access and 

causes the Work to be delayed an extension of time to the Finish Date shall be  granted;

(e) advise the Contractor of any particular hazards relating to the Site, and take all  practicable steps to ensure the Client’s own safety throughout the Work and 

cooperate fully in implementing the Contractor’s health and safety and 

environmental policies and procedures and obligations under the relevant 

health and safety legislation;

(f) ensuring that it has sufficient funds or finance to meet its financial obligations 

when they fall due (and the Contractor may at any time (whether before or after  the Start Date) require that proof of such funds or finance is provided); and

(g) obtaining all necessary consents for the Work (including for any Variations) and  for obtaining a code compliance certificate (if required) when the Work is 

complete. (To enable the Contractor to comply with its obligations above, the  Contractor may require that the Client provides it with a copy of all necessary  consents before commencing the Work or any Variation.)

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4 Start Date and Completion Date

Subject to receiving sufficient access as set out above, the Contractor will commence the  Work on the Start Date, and complete the Work by the Completion Date, in each case subject  to any extensions of time to which it is entitled under clause 8.

5 Payment

5.1 Invoices will be submitted on certain milestones as set out in the Quote. If milestones are not  provided for in the Quote, the Contractor will issue invoices on a regular basis. If the Work is  delayed or suspended for any reason outside the Contractor’s control, it may render an  invoice at the time a relevant milestone would otherwise have been achieved. Invoices  become a receipt on payment in full.

5.2 All payments are to be made within 7 days after the date of the invoice. Payments are to be  made by electronic funds transfer to the Contractor’s nominated account unless agreed  otherwise.

Any amount which is not paid within due will incur interest at the rate of 2% per month  compounding daily on the outstanding balance (both before or after any judgement, and in  addition to any other rights and remedies). The Contractor also reserves the right to claim the  costs of and incidental to collecting any debt.

If the Quote provides for a deposit, and the deposit is not paid in full 7 days before the Work is  due to start, the Contractor may without further notice cancel the contract for the Work, and  such cancellation is without prejudice to any other rights and remedies.

The Contractor reserves the right to invoke the Construction Contracts Act 2002 (CCA) in  respect of any services pursuant to these terms to which the CCA may apply.

If an invoice is rendered in accordance with the payment claim provisions in the CCA, the  Client is to provide a payment schedule which complies with the requirements of the CCA to  the Contractor within 3 Working Days of service of the payment claim. If a payment claim is  not provided within this period, the Client is liable to pay the whole amount of the payment  claim and cannot dispute any sum in that payment claim.

6 Variations

The Client may request variations to the Work. With the exception of the Variations set out in  clause 6.3, all variations must be in writing and contain the following:

a description of the work required under the Variation;

any required amendments to the consents as issued or any additional 

approvals, consents or licences that will be required;

any agreed adjustment to the Contract Price and/or the Completion Date for the  Work.

Unless otherwise agreed, the Client may not request a Variation omitting or reducing the Work  to be performed.

The Contractor is entitled to claim a Variation for:

any emergency works required for health and safety or environmental reasons;

additional work and/or changes to the Work caused by any consent 

requirements;

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unforeseen physical conditions, substitutions of any materials, wages and price  changes; or 

any increase in costs arising from a failure or delay on the Client’s part in complying with these terms. 

no allowances have been made in the Contract Price for the handling of 

hazardous substances (including asbestos), and the Contractor is also entitled  to claim a Variation for any such costs. 

All Variations claimed under clause 6.3 shall be calculated at the hourly rate set out in the  Quote (and if no rate is stated, then $ ), the cost of all materials, plus a margin of %.

7 Subcontractors: 

The Contractor may subcontract the whole or any portion of the Work. The Contractor will be  responsible for all work of its subcontractors and for ensuring that subcontractors have  appropriate insurance in place.

8 Delay and extensions of time

The Contractor shall not be liable for any delay in carrying out the Work due directly or  indirectly to circumstances reasonably outside its control, including disputes with  subcontractors, bad weather, force majeure, pandemics or epidemics, accidents, fire,  shortage of labour and/or materials, labour disputes, variations, failure of suppliers to deliver,  acts of any government, territorial authority or similar body, or unforeseen site conditions  including the presence of asbestos and other contaminates.

If an extension of time is required to the Completion Date due to any of the above reasons or  any other reason beyond the Contractor’s reasonable control, the Contractor shall provide  written notice to the Client of any such extension reasonably promptly after the Contractor  becomes aware of the delay, together with details of the new Completion Date.

9 Insurance

The Client is responsible for insuring the Work (and the Contractor may at any time require  that proof of such insurance is provided).The Contractor will arrange public liability insurance  up to $ against liability for loss or damage to any property, or injury or death or illness which  arises from carrying out the Work.

10 Defects Warranty

If the Work relates to a household unit, the Client may give notice of any defect within 12  months of completion of the Work, and the Contractor will remedy those defects within a  reasonable time of notification. The Client must notify the Contractor in writing of the defect as  soon as possible after the defect becomes apparent. 

The Contractor is not liable for any defect within reasonable tolerances, for any defect caused  by or arising out of the actions of any person outside the Contractor’s control, fair wear and  tear, or failure to maintain the Work.

These terms do not limit the implied warranties as set out in s362I to s362K of the Building Act  2004.

11 Suspension and termination

The Contractor may suspend the Work by notice if the Client defaults in any of its obligations  under these terms, including failing or refusing to pay any invoiced amount in full by the due  date for its payment. Such suspension is without prejudice to any other right to which the  Contractor might be entitled.

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The Contractor may terminate its obligations under these terms if at any time the Client  becomes bankrupt, goes into liquidation, or has a receiver or statutory manager appointed, or  defaults in its obligations under these terms and does not remedy that default within 5 Working  Days of receiving a notice requiring remedy.

On termination under clause 11.2 all monies owed to the Contractor will be payable  immediately.

12 Contractor Property on Site and Risk in the Work

The Client acknowledges that:

the legal, equitable and beneficial ownership and title to any plant, equipment or  materials brought onto the Site by the Contractor remains vested in the 

Contractor at all times;

title in all materials supplied as part of the Work remains vested in the 

Contractor until all amounts owing to the Contractor have been paid in full.

In the event of non-payment, the Contractor shall be entitled, without prejudice to any other  rights or remedies it has, to enter the Site for the purposes of recovering and taking  possession of the property described in clause 12.1 (whether or not such property has been  incorporated into the Work) and/or commencing court proceedings to recover damages  howsoever due to the Client’s default. 

To secure such obligations, for the purposes of the Personal Property Securities Act 1999  (PPSA), the Client agrees that a security interest is granted of the property described in clause  12.1 (and all proceeds of that property). All payments received may be applied by the  Contractor in such manner as is desirable to preserve any purchase money security interest in  that property. The Client agrees that nothing in section 114(1)(a), 116, 117 (1)(a), 120(2),  121, 125 to 127, 129, 131, 133 and 134 of the PPSA applies, and waives the right to receive a  verification statement or financing change statement in respect of any security interest.

Risk in the work will pass to the Client when the Work is completed at the site. 

13 Limitation on liability

In addition to the other provisions relating to liability in these terms, the Contractor shall have  no liability to the Client other than in relation to direct reasonably foreseeable losses incurred  by the Client as a result of the Contractor’s breach of these terms or the Quote. The  Contractor is not liable for any loss, liability or costs incurred by or any injuries suffered by the  Client or any other person which are an unavoidable result of carrying out the Works or  remedying any defects in accordance with these terms.

Other than in relation to defects in the Work as referred to in clause 10.1, the Client is to lodge  any claims with the Contractor within 3 months of the date of completion of the relevant part  of the Work otherwise any such claim will be regarded as invalid. Any claim submitted must be  sufficiently detailed so as to clearly identify what aspect of the Work is defective.

14 Signage

The Client agrees that the Contractor has the right to erect signage on the Site advertising  itself during the period of the Work.

15 Notices

All notices are to be in writing and hand delivered or sent by post or email to the addresses set  out in the Quote. The address for service and postal address for the Contractor is the physical  address set out in the Quote.

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A notice is deemed to be received:

if personally delivered, when delivered; or

if posted, 5 working days after posting; or

if sent by email, when the email leaves the sender’s communications system,  provided that the sender:

i does not receive any error message relating to the sending of the email;  or

ii receives confirmation that the email was delivered (which may include  an automated delivery receipt from the recipient’s communications 

system).

Despite clause 15.2, any notice received after 5pm, or received on a day that is not a Working  Day, is deemed not to have been received until 9am on the next Working Day.

16 Dispute Resolution

If there is any dispute relating to these terms or the Work, the party raising the dispute must  give the other party written notice specifying particulars of the dispute.

If negotiations between the parties do not resolve the dispute, either party may refer a dispute  to adjudication under the CCA or bring a claim before the Disputes Tribunal or the High Court,  as appropriate.

17 Privacy Act [1993/2020]

The Client irrevocably agrees that the Contractor is authorised to:

Access, collect and retain any information it may require about the Client; and

Use that information for the purpose of providing or obtaining a credit reference,  debt collection, notification of a default, marketing or meeting its anti-money 

laundering obligations under the Anti-Money Laundering and Countering 

Financing of Terrorism Act 2009 or any amendments to that Act.

The Client must notify the Contractor of any changes in circumstances that may affect the  accuracy of the information provided by the Client.

The Client has the right of access to and collection of any personal information held by the  Contractor.

18 General

The Quote may be executed and exchanged in any number of counterparts (including copies  and scanned e-mail copies) each of which is deemed to be an original, but all of which  together are to constitute a binding an enforceable agreement between the parties.

If any clause or part of a clause of the terms is held to be invalid or unendurable for whatever  reason that part shall be severed from these terms and the remaining provisions shall remain  in full force and effect.

The Contractor can vary these terms at any time by notification to the Client. The Client  cannot vary these terms other than with the Contractor’s express written consent

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19 Definitions

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In these terms:

Client means the person(s) stated as the Client(s) in the Quote.

Completion Date means the expected date on which the Contractor reasonably believes the Work  will be completed, subject to extensions of time, as stated in the Quote.

Contractor means

Contract Price means the price for the Work calculated in accordance with the Quote and subject to  any adjustments provided for in these terms.

Including does not imply limitation.

Site means the site address at which the Work is to be carried out, as stated in the Quote.

Start Date means the expected start date at which the Contractor reasonably believes physical work  will commence on Site, as stated in the Quote.

Variation means a variation to the Works under section 6.

Work means the work stated in the Quote (subject to consents and Variations) at the Site.

Working Day has the meaning given in the Construction Contracts Act 2002.

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