TERMS AND CONDITIONS
1. The following terms shall be incorporated into every contract between us and the client for the supply by us of goods or services unless specifically excluded in writing. No variation of these terms will be binding on us unless made in writing. In the event of inconsistency between these terms or any quotation or other agreement entered into between us and you, then these terms shall take precedence at all times.
2. DEFINITIONS
"Client" means the client, any person acting on behalf of and with the authority of the client or any person purchasing goods and/or services from us.
“Seller” shall mean Ventuer Limited and its successors and assigns.
“Defect” means a fault or flaw in the workmanship or materials provided by us that consists of:
· workmanship that has not been carried out in a competent manner and with reasonable skill and care.
· a significant, adverse and unauthorised departure from what was prescribed by the drawings and specifications.
· in matters not specifically prescribed by the drawings and specifications, a material and unauthorised departure from manufacturer’s tolerances (if manufacturer’s tolerances are not available, then current tolerance schedules published by the Ministry of Business Innovation and Employment will apply, and if they are not available then current tolerance guidelines published by New Zealand Standards will apply).
“Goods” means the goods ordered by the client and supplied by us to the client.
“Due Date” means the date on which payment for an invoice issued by Ventuer Limited is required to be received. This date will be specified on the invoice.
“Substantial Completion of the Works” shall mean the stage in the progress of the project at which the Works are sufficiently complete in accordance with the contract documents, so that the Owner or Principal can reasonably occupy or use the Works for their intended purpose.
“Intellectual Property” means any patent, trade mark, service mark, logo, trade name and business name (including rights in goodwill), copyright in all concepts (including designs, drawings, specifications, plans, studies, reports and documentation prepared or created by Ventuer Limited), moral right, right in design, right in or to internet domain names, know-how, right in or to Confidential Information (including trade secrets) and any other intellectual property rights, whether or not registered and any similar rights worldwide
“Works” means the supply of Goods and services in accordance with our quotation or any agreed contract documents, including variations.
3.1 Our drawings and/or specifications are based on the information and/or site measurements provided, and we do not accept any risk of site actual dimensions or any errors in set out.
3.2 Revisions of any construction details will be a variation.
3.3 Any contra charge costs must be properly and reasonably incurred, and the client acknowledges that we will be given an adequate opportunity to firstly carry out or rectify any issues before any liability for contra charges can arise.
4. ACCEPTANCE
4.1 Any instructions received by us from the client for the supply of the Works shall constitute acceptance of the terms and conditions contained herein.
4.2 Where more than one client has entered into this agreement, the clients shall be jointly and severally liable for all payments of the price.
4.3 Upon acceptance of these terms and conditions by the client, the terms and conditions are irrevocable and can only be rescinded in accordance with these terms and conditions or with the written consent from us.
4.4 None of our agents or representatives are authorised to make any representations, statements, conditions or agreements not expressed by the manager of the Seller in writing nor are we bound by any such unauthorised statements.
5. PRICE
5.1 Where a price is given by us for goods and services:
a. The price shall be valid for thirty (30) days from the date of issue; and
b. We reserve the right to alter our price where that has been submitted based on plans which have been altered and/or changes have been made that would affect the measurements on which our price has been calculated and/or has been based upon work in an area of a building that cannot be viewed until the work is undertaken and/or if a latent condition exists or circumstances exist beyond our control which will delay the efficient execution of the Works.
c. The price is based on the assumption that retentions will not be applied.
5.2 The pricing is also provided on the assumption that our hours of work will be: Monday to Friday = 7am- 5pm
5.3 The price shall be increased by the amount of any GST and other taxes and duties which may be applicable, except to the extent that such taxes are expressly included in any quotation given by the Seller.
6. VARIATIONS
6.1 The client may order any variation to the Works that:
a. increases or decreases the scope of the Works;
b. omits any work; or
c. changes the nature, position, location, or quality of any work or materials.
6.2 The client shall not, without our consent, remove work from the Works to have that work carried out by another contractor or the client.
6.3 The parties written agreement to vary the Works must:
a. state the scope of work the subject of the variation;
b. state the price of the Variation or how the price of the variation is to be calculated; and
c. be approved by both parties.
6.4 The contract sum or quotation price is to be adjusted by the price of a variation and the adjustment shall be included by us in our next payment claim. To price a variation there is a one-off cost of $150 or 5% of the variation value, whichever is greater. The lesser of these costs is payable even if the client does not go ahead with the variation to meet our costs of administration.
7. PAYMENT
7.1 We may serve an invoice by email or post in respect of:
b. on Substantial Completion of the Works; or
d. on Substantial Completion of any stages of the Works, if the Works have been separated into stages, including offsite work; or
e. by way of progress claims during each monthly period commencing on the day of the month in which the Works were first carried out and ending on the last day of that month, and each month after that first period, including offsite work.
7.2 Time for payment for the Works shall be of the essence and will be stated on the invoice, quotation or any other order forms.
7.3 If we serve the invoice as a payment claim under the Construction Contracts Act 2002, and if the client intends to pay us less than the amount claimed in a payment claim, then the client must respond to the payment claim by providing a payment schedule to us within five (5) calendar days after the date the payment claim is received by the client.
8. DEFAULT
8.1 If the client does not make payment on the Due Date, the client shall be liable to pay:
a. default interest at the rate of 2% per month, which shall accrue on a daily basis on the total amount outstanding from the Due Date to the date of payment in full; and
b. any legal costs on a solicitor/client basis that we incur incidental to the enforcement or attempted enforcement of its rights, remedies and powers under these Terms and Conditions.
8.2 If the client fails to pay any amount owing on the Due Date and any such default continues for five (5) calendar days then we shall be entitled to immediately suspend the Works 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.
9. GUARANTEE
9.1 In consideration of credit being extended to the Client, the persons named in the Credit Account Application (Guarantors) hereby irrevocably guarantee the due and punctual payment of all moneys owing by the Client to the Seller. It is acknowledged that the Seller is not obliged to pursue its remedies against the Client but may proceed in the first instance directly against any or all of the Guarantor(s) and if more than one their liability shall be joint and several.
10. WARRANTIES
10.1 We warrant that the Works we are responsible for will be carried out:
a. In a proper and competent manner;
b. With reasonable care and skill;
c. In accordance with any building consents;
d. Using materials that are fit for purpose (if recommended by us);
e. Using materials that are new (unless agreed otherwise); and
f. correspond with their description and any applicable specification;
g. to satisfactory quality and fit for any purpose held out by us or made known to us by the client expressly or by implication, and in this respect the client relies on our skill and judgement;
h. where Goods are manufactured products by us, be free from defects in design, material and workmanship and remain so for 12 months after delivery (unless a different warranty period be agreed in writing); and
i. In accordance with all applicable laws and legal requirements.
10.2 The client agrees and acknowledges that we are not liable for any issues arising from fair wear and tear, owner and operator neglect, failure to comply with any provided manufacture literature and inadequate maintenance.
10.3 For Goods not manufactured by the Seller the warranty shall be the current warranty provided by the manufacturer of the goods. We shall be under no liability whatsoever except for the express conditions as detailed and stipulated in the manufacturers warranty.
11. DEFECTS LIABILITY PERIOD
11.1 The client shall inspect the Goods on delivery, and shall within twenty (20) days of delivery notify us of any alleged Defect and shall within three (3) days of delivery advise of any shortage in quantity or failure to comply with the description or quote. The client shall afford us an opportunity to inspect the Goods within a reasonable time following delivery if the client believes the Goods are defective in any way. If the client fails to comply with these provisions the Goods shall be conclusively presumed to be in accordance with the terms and conditions and free from any Defect or damage.
11.2 For defective Goods which we have agreed in writing that the client is entitled to reject, our liability is limited to either (at our discretion) replacing the Goods or repairing the Goods provided that:
a. the client has complied with the provisions of clause 10.1;
b. the Goods are returned at the clients cost within twenty one (21) days of the delivery date;
c. we will not be liable for Goods which have not been stored or used in a proper manner;
d. the Goods are returned in the condition in which they were delivered and with all packaging material, brochures and instruction material in as new condition as is reasonable possible in the circumstances.
11.3 We may (in our discretion) accept the Goods for credit but this may incur a restocking fee of 10% of the value of the returned Goods plus any freight.
12. LIMITATION OF LIABILITY
12.1 We shall not be liable for any delay damages (whether those are for liquidated damages or otherwise) or for any claims for loss or profits (whether direct or indirect), or loss of business opportunity or anticipated savings or for any indirect or consequential loss whatsoever.
12.2 Notwithstanding any other provision to the contrary, our maximum aggregate liability to the client arising out of or in connection with the Works whether in contract, any indemnity, tort (including negligence) by statute or otherwise at law or in equity is limited as follows:
a. to the value of our price (excluding GST, variations and the cost of materials) for the Works; or
b. for liability arising out of events or circumstances in respect of which insurance proceeds are available under an insurance policy required to be effected by us for the Works (or would have been available had we complied with our obligations under the relevant insurance policy), the amount which is paid under that policy, or would have been paid, had we so complied, up to the limits of such insurance as we are required to have in place for the Works.
12.3 These clauses do not limit our liability to the extent that it:
a. cannot be limited at law; and
b. arises out of or in connection with any willful default, fraud or criminal conduct.
13. TITLE/DELIVERY
13.1 Delivery of the Goods shall be made to the client’s nominated address. The client shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery.
13.2 We have allowed for:
a. load deliveries being able to be promptly unloaded at the delivery location with adequate and secure lay down areas;
b. deliveries Monday to Friday during standard working hours (7:30am to 4:30pm) only.
13.3 It is the intention of us and agreed by the client that property in any Goods shall not pass until:
a. The client has paid all amounts owing for the particular Goods, and
b. The client has met all other obligations due by the client to us in respect of all contracts between us and the client, and that the Goods, or proceeds of the sale of the Goods, shall be kept separate until we shall have received payment and all other obligations of the client are met.
13.4 It is further agreed that:
a. Until such time as ownership of the Goods shall pass from us to the client, we may give notice in writing to the client to return the Goods or any of them to us. Upon such notice the rights of the client to obtain ownership or any other interest in the Goods shall cease.
b. If the client fails to return the Goods to us then we or our agent may enter upon and into land and premises owned, occupied or used by the client, or any premises as the invitee of the client, where the Goods are situated and take possession of the Goods, without being responsible for any damage thereby caused.
13.5 We may deliver the Goods by separate instalments (in accordance with any agreed delivery schedule). Each separate instalment shall be invoiced and paid for in accordance with the provisions in this contract of sale.
13.6 Delivery of the Goods to a third party nominated by the Buyer is deemed to be delivery to the Buyer for the purposes of this agreement.
14. Risk
14.1 If we retain property in the Goods nonetheless all risk for the Goods passes to the client on delivery.
14.2 If any of the Goods are damaged or destroyed prior to property in them passing to the client, we are entitled, without prejudice to any of our other rights or remedies under these terms and conditions (including the right to receive payment of the balance of the price for the Goods), to receive all insurance proceeds payable in respect of the Goods. This applies whether or not the price has become payable under these terms and conditions. The production of these terms and conditions by us is sufficient evidence of our rights to receive the insurance proceeds without the need for any person dealing with us to make further enquiries.
15. OWNERSHIP/PPSA
15.1 Without limiting anything else in these Terms, the client grants us a security interest in all Goods supplied by us to the client including all proceeds of such Goods so as to secure all monies owing by the client to us. The client agrees to do all things necessary to enable us to register a financing statement on the Personal Property Securities Register and to ensure that the security interest is a first ranking perfected security interest over all the Goods.
15.2 If the Goods subsequently become part of some other product, then nothing in these Terms shall limit the application of sections 82 to 86 of the PPSA.
15.3 The Client waives its right to receive a copy of any verification statement in respect of any financing statement or financing change statement relating to the security interest.
15.4 The client agrees to indemnify us for any costs we incur in registering, maintaining and for enforcing the security interest created by these terms including actual legal costs on a solicitor/client basis.
15.5 The Client agrees that nothing in sections 114(1)(a), 120(1), 122, 133 or 134 of the PPSA will apply. The Client agrees to waive its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129 and 131 of the PPSA to the extent that these rights may be waived under section 107(2) of the PPSA.
15.6 The client must immediately notify us if it changes its name, registered office, or place of business.
16. INTELLECTUAL PROPERTY
16.1 The Client acknowledges and undertakes as follows:
a. The Seller shall retain ownership and/or copyright of all documents it has prepared. The Client shall be entitled to use them or copy them for the purposes of the Works.
b. The ownership of data and factual information collected by the Seller and paid for by the Client, shall, after payment by the Client lie with the Client.
c. The Client shall have no right to use any of the documents where any or all of the costs for the Works payable to the Seller have not been paid in accordance with these Terms and Conditions.
17. CONSUMER GUARANTEES ACT
If the Client is obtaining the Goods for business purposes the provisions of the Consumer Guarantees Act 1993 are excluded in relation to the Goods. If the Client is not obtaining the Goods for business purposes, then to the extent that any provision in these Terms and Conditions are inconsistent with the Consumer Guarantees Act the provisions of the Act will prevail.
18. DISPUTES
18.1 Any adjudicator appointed under the Construction Contracts Act 2002 must be an architect, engineer or registered quantity surveyor with at least 10 years post qualification experience.
18.2 Both parties agree that in the event of any dispute or difference that they will resolve that by way expert determination by a person appointed in accordance with this clause 17.
18.3 If the parties are unable to agree on an expert or the terms of their appointment within seven (7) days of either party serving details of a suggested expert on the other, either party shall then be entitled to request the Arbitrators and Mediators Institute of New Zealand to appoint an expert who must have no less than ten (10) years practical experience directly in or consulting to or advising the construction industry in New Zealand and an industry qualification by degree or other recognized tertiary qualification in architecture, quantity surveying or engineering.
18.4 The expert is required to prepare a written decision and give notice (including a copy) of the decision to the parties within a maximum of 2 weeks of details of the dispute being referred to the expert.
18.5 The parties are entitled to make submissions to the expert including oral submissions and will provide (or procure that others provide) the expert with such assistance and documents as the expert reasonably requires for the purpose of reaching a decision.
18.6 To the extent not provided for by this clause 17, the expert may in his or her reasonable discretion determine such other procedures to assist with the conduct of the determination as they consider just or appropriate including (to the extent considered necessary) instructing professional advisers to assist them in reaching their determination.
18.7 Each party shall with reasonable promptness supply each other with all information and give each other access to all documentation and personnel and/or things as the other party may reasonably require to make a submission under this clause.
18.8 The expert's written decision on the matters referred to him or her shall be final and binding on the parties in the absence of fraud or manifest error.
18.9 The expert's fees and any costs properly incurred by them in arriving at their determination (including any fees and costs of any advisers appointed by the expert) shall be borne by the parties equally.
18.10 Each party shall act reasonably and co-operate to give effect to the provisions of this clause 17 and otherwise do nothing to hinder or prevent the expert from reaching his or her determination.
19. Personal Information
19.1 The Client authorises the Seller to collect, retain and use personal information about the Client, including the information contained in these Terms and Conditions, for the purposes of assessing the Client’s credit worthiness, administering the Seller’s rights against the Client or marketing any goods or services provided by the Seller. The Client may request access to and correction of any personal information and the Seller will comply with its obligations under the Privacy Act 1993.
19.2 The client authorises the Seller to disclose information about you:
i. to any person who guarantees, or who provides insurance, or who provides any other credit support, in relation to your obligations to us;
ii. to such persons as may be necessary or desirable to enable us to exercise any power or enforce or attempt to enforce any of our rights, remedies and powers under these terms.
20. MISCELLANEOUS
20.1 The client shall not make any claim against any individual employee or employees or director of our company for any costs, losses or damages sustained by the client arising from the Works.
20.2 If any provision of these terms and conditions shall be invalid or void or illegal or unenforceable the validity existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
