Terms of Trade

Definitions

1.1 “Builder” shall mean Allen & Chapman 2004 Ltd its successors and assigns or any person acting on behalf of and with the authority of Allen & Chapman 2004 Ltd.
1.2 “Owner” shall mean the Owner or any person acting on behalf of and with the written authority of the Owner.
1.3 “Works” shall mean all Works (including the supply of Materials) undertaken by the Builder and described in this contract and includes any advice or recommendations.
1.4 “Materials” shall mean Materials required to complete the Works.
1.5 "Prime Cost Item" shall mean an item that either has not been selected, or whose Price is not known, at the time this contract is entered into and for the cost of supply and delivery of which the Builder must make a reasonable allowance in the contract.
1.6 "Provisional Sum" shall mean an estimate of the cost of carrying out particular Works under this contract for which the Builder, after making all reasonable inquiries, cannot give a definite Price at the time this contract is entered into.
1.7 “Price” shall mean the Price of the Works as agreed between the Builder and the Owner.

Acceptance

2.1 Any instructions received by the Builder from the Owner for the supply of Works and/or the Owner’s acceptance of Works undertaken by the Builder shall constitute acceptance of the terms and conditions contained herein
2.2 Where more than one Owner has entered into this agreement, the Owners shall be jointly and severally liable for all payments of the Price.
2.3 Upon acceptance of this contract by the Owner, this contract is binding and can only be rescinded in accordance with this contract or with the written consent of the Builder.
2.4 None of the Builder’s agents or representatives are authorised to make any representations, statements, conditions or agreements not expressed by the manager of the Builder in writing nor is the Builder bound by any such unauthorised statements.
2.5 The Owner shall give the Builder not less than fourteen (14) days prior written notice of any proposed change of ownership of the Owner or any change in the Owner’s name and/or any other change in the Owner’s details (including but not limited to, changes in the Owner’s address, facsimile number, or business practice). The Owner shall be liable for any loss incurred by the Builder as a result of the Owner’s failure to comply with this clause.

Variations

3.1 In the event that the Owner requests a variation all such requests shall be made in writing. If the Builder believes the variation will not require a variation to any permit and will not cause any delay, and will not add more than two percent (2%) to the Price then the Builder may carry out the variation and the Owner agrees to pay any variation to the Price, otherwise the Builder will give the Owner a written variation document detailing the Works, the amended Price, the estimated time to undertake the variation, and the likely delay, if any, and require written acceptance by the Owner of the variation before commencing Work on the variation.

3.2 In the event that the Builder requests a variation, the Builder will, in writing;
         a. state the reason for the variation; and
         b.provide a full description of the variation; and
         c. state any effect the variation will have on the contract, including but not limited to, the Price, completion date and whether further permits or authorisations are required.

3.3 Other than for the events outlined in clause 3.4 the Builder shall obtain written acceptance by the Owner of any variation submitted by the Builder before commencing Work on the variation.
3.4 Where the Works involve additions or alterations to an existing building or structure then:
a. the Builder shall not be liable for any loss or damage suffered by the Owner in relation to the Works where such loss or damage results from the state or condition of the Owner’s existing building or structure and the effect of such state or condition on the Works or the effect of the Works on the existing building or structure which could not reasonably have been foreseen by the Builder during the course of the Works; and

b. where as a result of opening up any part of the existing building or structure to carry out the Works, any additional or altered work is required because of non-standard construction or any substandard timber or other materials or because of any material which is required to be replaced or removed to carry out the Works, then the cost of any additional or altered work shall be borne by the Owner and treated as a variation and the Contract Price adjusted accordingly.

Price And Payment

4.1 At the Builder’s sole discretion a deposit may be required.
4.2 Time for payment for the Works shall be of the essence and will be stated on the invoice. If no time is stated then payment shall be due seven (7) days following the date of the invoice.
4.3 At the Builder’s sole discretion payment for approved Owners shall be due twenty (20) days following the end of the month in which a statement is posted to the Owner’s address or address for notices.
4.4 Where no payment stages have been specified the Builder may submit a detailed payment claim at intervals not less than one (1) month for Works performed up to the end of each month. The value of Works so performed shall include the reasonable value of authorised variations, whether or not the value of such variations has been finally agreed between the parties, and the value of Materials delivered to the site but not installed.
4.5 Payment will be made by cash, or by cheque, or by bank cheque, or by direct credit, or by any other method as agreed to between the Owner and the Builder.
4.6 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 the building contract schedule.

Completion Of Works

5.1 Subject to clause 5.2 it is the Builder’s responsibility to ensure that the Works start as soon as it is reasonably possible.
5.2 The Works commencement date will be put back and the building period extended by whatever time is reasonable in the event that the Builder claims an extension of time (by giving the Owner written notice) where completion is delayed by an event beyond the Builder’s control, including but not limited to any failure by the Owner to:
a. make a selection; or
b. have the site ready for installation; or
c. notify the Builder that the site is ready.
e. The Works shall be deemed to be completed when:
a. the Works carried out under this contract have been completed in accordance with the plans and specifications set out in this contract; and

b. the Owner either:
i. receives a certificate of acceptance where the Works were urgent and completed without a building consent; or
ii. in any other case, upon the issuance of a Notice of Practical Completion.
5.3 The Owner shall inspect the Works upon completion and shall within one (1) month notify the Builder of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Owner shall afford the Builder an opportunity to inspect the Works within a reasonable time following delivery if the Owner believes the Works are defective in any way. If the Owner shall fail to comply with these provisions the Works shall be presumed to be free from any defect or damage. For defective Works, which the Builder has agreed in writing that the Owner is entitled to reject, the Builder’s liability is limited to either (at the Builder’s discretion) replacing the Works or repairing the Works.
5.4 The failure of the Builder to deliver shall not entitle either party to treat this contract as repudiated.
5.5 The Builder shall not be liable for any loss or damage whatever due to failure by the Builder to deliver the Works (or any of them) promptly or at all, where due to circumstances beyond the control of the Builder.

Site Acess and Condition

6.1 It is the intention of the Builder and agreed by the Owner that;
a. It is the Owner’s responsibility to provide the Builder, while at the site, with adequate access to available water, electricity, toilet and washing facilities; and
b. The Owner is entitled to have reasonable access to inspect the Works at all reasonable hours in the presence of the Builder provided that the Builder shall not be responsible for any damage done to the Works by the Owner, and the Owner does not interfere with the process of the Works, and the Owner complies with all requirements of Health and Safety in Employment Act 1992; and
c. the Builder is not responsible for the removal of rubbish from, or clean up of, the building/construction site/s when it has been stated on the quotation/estimate that no allowance has been given for rubbish removal/dump fees. This is the responsibility of the Owner or the Owner’s agent; and.
d. the Builder shall not be responsible for the removal of rubbish left by any other contractor or sub-contractor.

Compliance & Consents

7.1 The Owner shall obtain and pay for any building consent and resource consent and other necessary approvals required for the Works, including consents and approval required after commencement of the Works.
7.2 The Builder shall comply with the terms and conditions of the building and resource consents and approvals as far as such consents and approvals relate to the carrying out of the Works.
7.3 Subject to section 364 of the Building Act 2004, the Owner shall be responsible for applying for and obtaining the Code Compliance Certificate(s) for the Works.
7.4 The Builder shall provide the Owner with all necessary information relating to the Works so that the Owner may apply for a Code Compliance Certificate.

Works undertaken by Owner

8.1 In the event that any part of the Works is undertaken by, or is reliant upon Works undertaken by the Owner then any Works undertaken by the Owner shall be at the written permission of the Builder and executed in accordance with a timetable provided to the Owner by the Builder and shall be undertaken strictly in accordance with the plans and specifications, the Building Act 2004 and relevant regulations made under that Act including the building code, and any direction given by the Builder.
8.2 In the event of the Owner failing to undertake any such Works strictly in accordance with clause 8.1, the Builder shall be entitled to:
a. rectify any such failure to make a good defect; and
b. charge the Owner any extra costs incurred due to additional labour or material costs with any such costs being paid to the Builder as invoiced prior to possession being given and taken.

8.3 The Builder shall not be liable for any loss or damage howsoever caused as a result of any Works performed by the Owner.
8.4 In the event of any loss arising out of any Materials supplied by the Owner, the Owner shall be liable for all such loss or damage.
8.5 During any period that the Owner is working on the Works the Owner shall take all practical steps to prevent harm to the Builder and shall comply with the provisions of the Health and Safety in Employment Act 1992.

Risk

9.1 If the Builder retains ownership of the Materials nonetheless, all risk for the Materials passes to the Owner on completion.
9.2 The Builder shall be responsible for the Works from the date that the Builder takes possession of the building site until the date of Practical Completion recorded in the Notice of Practical Completion.

Insurance

10.1 The Builder shall maintain a public liability insurance policy indemnifying the Builder against claims in respect of loss or damage against any property or injury or death or illness to any person arising out of the operations of the Builder or any of its subcontractors in connection with the execution of the Works. The policy shall be in the joint names of the Builder and the Owner and shall be for an amount of not less than one million dollars ($1,000,000) and shall be kept continuously in force until any Works required to remedy defects has been completed.
10.2 Where the Works involve physical change to an existing structure including additions or alterations Works then the Owner shall arrange insurance:
a. for the Works against loss or damage for not less than the total of the contract Price; and
b. for full replacement value against loss or damage to the Owner’s existing structure made available to enable performance of the Works or adjacent to the Works and against loss or damage to the Owner’s contents; and
c. against consequential loss arising from loss or damage to the Owner’s existing structures made available for the Works to be carried out
10.3 In the case of additions or alterations Works, insurance cover under clause 10.2 may be provided under the Owner’s existing policy of insurance in relation to the existing building or structure as an extension of such policy and:
d. shall be in the joint names of the Owner, the Builder and the mortgagee (if any); and
e. shall not be able to be cancelled or materially changed without giving at least ten (10) working days prior notification by the insurer in writing to the Builder and the Owner; and
f. shall include a waiver of the insurer’s right to subrogation against the insurer parties.
10.4 For new dwellings the Builder shall from the date that the Works are due to be commenced until the date that the Works are completed keep the Works insured against loss or damage. The insurance policy shall be in the names of the Owner, the Builder and the mortgagee (if any). Such cover shall also be maintained after completion if any defects require rectification by the Builder and until such time as those Works have been completed.

Surplus Materials

11.1 Unless otherwise stated elsewhere in this contract;
a. only suitable new Materials will be used;
b. demolished Materials remain the Owner’s property; and
c. Materials that the Builder brings to the site which are surplus remain the property of the Builder.

Title

2.1 It is the intention of the Builder and agreed by the Owner that ownership of Materials shall not pass until:
a. the Owner has paid all amounts owing for the particular Materials, and
b. the Owner has met all other obligations due by the Owner to the Builder in respect of all contracts between the Builder and the Owner.
12.2 Receipt by the Builder 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 and until then the Builder’s ownership or rights in respect of Materials shall continue.

12.3 It is further agreed that:
a. where practicable the Materials shall be kept separate and identifiable until the Builder shall have received payment and all other obligations of the Owner are met; and
b. until such time as ownership of the Materials shall pass from the Builder to the Owner the Builder may give notice in writing to the Owner to return the Materials or any of them to the Builder. Upon such notice the rights of the Owner to obtain ownership or any other interest in the Materials shall cease; and
c.the Builder shall have the right of stopping the Materials in transit whether or not delivery has been made; and
d. if the Owner fails to return the Materials to the Builder then the Builder or the Builder’s agent may enter upon and into land and premises owned, occupied or used by the Owner, or any premises as the invitee of the Owner, where the Materials are situated and take possession of the Materials.

Warranty

3.1 To the extent required by statute, the Builder warrants that:
a. the Works shall be carried out in a proper and workmanlike manner and in accordance with the plans and specifications set out in the contract schedule;
b. all Materials supplied be good and, having regard to the relevant criteria, suitable for the purpose for which they are used and that, unless otherwise stated in this contract, those Materials will be new;
c.the Works will be carried out in accordance with all relevant laws and legal requirements (including, but not limited to, the Building Act 2004 and the Building Code);

d. the Works will be carried out in an appropriate and skilful way, with reasonable skill and care;
e. the Works will be carried out in accordance with the plans and the specifications to this contract;
f. . if the Works consist of the construction of a detached dwelling or are intended to renovate, alter, extend, improve or repair a home to a stage suitable for occupation, that the detached dwelling or home will be suitable for occupation when the Works are finished; and
g. if the contract states the particular purpose for which the Works are required, or the result which the Owner wishes the Works to achieve (so as to show that the Owner relies on the Builder’s skill and judgement) then the Works and any Materials will be reasonably fit for that purpose or will be of such a nature and quality that they might reasonably be expected to achieve that result.
13.2 For Material not manufactured by the Builder the warranty shall be the current warranty provided by the manufacturer of the Material. The Builder shall be under no liability whatsoever except for the express conditions as detailed and stipulated in the manufacturers warranty.
13.3 The Builder will use reasonable endeavours to match new Materials to existing Materials. However, the parties recognise that it may not be possible to provide an exact matching of Materials and in such event there shall be no claim against the Builder.
13.4 In the case of second hand Materials, the Owner acknowledges that they have had full opportunity to inspect the same and that they accept the same with all faults and that no warranty is given by the Builder as to the quality or suitability for any purpose and any implied warranty, statutory or otherwise, is expressly excluded. The Builder shall not be responsible for any loss or damage to the Materials, or caused by the Materials, or any part thereof however arising.

Construction Contracts Act 2002

14.1 In the event that the Owner is a residential occupier as defined by the Construction Contracts Act 2002 the Owner hereby expressly acknowledges that:
a. The Builder 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 Owner, and:
i. the payment is not paid in full by the due date for payment and no payment schedule has been given by the Owner; or
ii. a scheduled amount stated in a payment schedule issued by the Owner in relation to the payment claim is not paid in full by the due date for its payment; or
iii.the Owner has not complied with an adjudicator’s notice that the Owner must pay an amount to the Builder by a particular date; and
iv. The Builder has given written notice to the Owner of its intention to suspend the carrying out of construction work under the construction contract.
b. If the Builder suspends work, it:
i. is not in breach of contract; and
ii. is not liable for any loss or damage whatsoever suffered, or alleged to be suffered, by the Owner or by any person claiming through the Owner; and
iii. is entitled to an extension of time to complete the contract; and
iv. 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.
c. If the Builder exercises the right to suspend work, the exercise of that right does not:
i. affect any rights that would otherwise have been available to the Builder under the Contractual Remedies Act 1979; or
ii. enable the Owner to exercise any rights that may otherwise have been available to the Owner under that Act as a direct consequence of the Builder suspending work under this provision.

Intellectual Property

15.1 Where the Builder has designed, drawn or written plans or a schedule of Works for the Owner, then the copyright in those plans, schedules, designs and drawings shall remain vested in the Builder, and shall only be used by the Owner at the Builder’s discretion.
15.2 The Owner warrants that all designs or instructions to the Builder will not cause the Builder to infringe any patent, registered design or trademark in the execution of the Owner’s order.

Default & Consequences of Default

16.1 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 one half percent (2.5%) per calendar month (and at the Builder’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
16.2 In the event that the Owner’s payment is dishonoured for any reason the Owner shall be liable for any dishonour fees incurred by the Builder.
16.3 If the Owner defaults in payment of any invoice when due, the Owner shall indemnify the Builder from and against all costs and disbursements incurred by the Builder in pursuing the debt including legal costs on a solicitor and own Client basis and the Builder’s collection agency costs.
16.4 Without prejudice to any other remedies the Builder may have, if at any time the Owner is in breach of any obligation (including those relating to payment) the Builder may suspend or terminate the supply of Works to the Owner under the Construction Contracts Act 2002. The Builder will not be liable to the Owner for any loss or damage the Owner suffers because the Builder exercised its rights under this clause.
16.5 If any account remains overdue after thirty (30) days then an amount of the greater of $20.00 or 10.00% of the amount overdue (up to a maximum of $200) shall be levied for administration fees which sum shall become immediately due and payable.
16.6 Without prejudice to the Builder’s other remedies at law the Builder shall be entitled to cancel all or any part of any order of the Owner which remains unperformed and all amounts owing to the Builder shall, whether or not due for payment, become immediately payable in the event that:
a. any money payable to the Builder becomes overdue, or in the Builder’s opinion the Owner will be unable to meet its payments as they fall due; or
b. the Owner becomes insolvent, 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
c. a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Owner or any asset of the Owner.

Security And Charge

17.1 Despite anything to the contrary contained herein or any other rights which the Builder may have howsoever:
a. where the Owner and/or the Guarantor (if any) is the Owner of land, realty or any other asset capable of being charged, both the Owner and/or the Guarantor agree to mortgage and/or charge all of their joint and/or several interest in the said land, realty or any other asset to the Builder or the Builder’s nominee to secure all amounts and other monetary obligations payable under these terms and conditions. The Owner and/or the Guarantor acknowledge and agree that the Builder (or the Builder’s nominee) shall be entitled to lodge where appropriate a caveat, which caveat shall be withdrawn once all payments and other monetary obligations payable hereunder have been met.
b. should the Builder elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Owner and/or Guarantor shall indemnify the Builder from and against all the Builder’s costs and disbursements including legal costs on a solicitor and own Client basis.
c. the Owner and/or the Guarantor (if any) agree to irrevocably nominate constitute and appoint the Builder or the Builder’s nominee as the Owner’s and/or Guarantor’s true and lawful attorney to perform all necessary acts to give effect to the provisions of this clause 17.1.

Cancellation

18.1 Subject to clauses 18.2 to 18.4 the Owner may cancel this contract if;
a. either
i. the Price rises by fifteen (15) percent or more after the contract was entered into; or
ii. the contract has not been completed within 1½ times the period it was to have been completed by; and
b. the reason for the increased time or cost was something that could not have been reasonably foreseen by the Builder on the date the contract was made.
18.2 For the purposes of clause 18.1 any increased time or cost that arises as a result of a Prime Cost Item or a Provisional Sum or that is caused by a variation is to be ignored in calculating any Price rise or increase in time.
18.3 To end the contract, the Owner must give the Builder a signed notice stating that the Owner is ending the contract under this clause and giving the details of why the contract is being ended.
18.4 If a contract is ended under this clause, the Builder is entitled to a reasonable Price for the Work carried out under the contract to the date the contract is ended. However, the Builder may not recover more than the Builder would have been entitled to recover under the contract.

Privacy Act 1993

19.1 The Owner and the guarantor/s (if separate to the Owner) authorises the Builder to:
a. collect, retain and use any information about the Owner and/or guarantors, for the purpose of assessing the Owner’s and/or guarantors creditworthiness or marketing products and services to the Owner and/or guarantors; and
b. disclose information about the Owner and/or guarantors, whether collected by the Builder from the Owner and/or guarantors directly or obtained by the Builder 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 Owner and/or guarantors.
19.2 Where the Owner and/or guarantors are an individual the authorities under clause 19.1 are authorities or consents for the purposes of the Privacy Act 1993.
19.3 The Owner and/or guarantors shall have the right to request the Builder for a copy of the information about the Owner and/or guarantors retained by the Builder and the right to request the Builder to correct any incorrect information about the Owner and/or guarantors held by the Builder.

Personal Property Securities Act 1999 (“PPSA”)

20.1 Upon assenting to these terms and conditions in writing the Owner acknowledges and agrees that:
a. these terms and conditions constitute a security agreement for the purposes of the PPSA; and
b. a security interest is taken in all Works previously supplied by the Builder to the Owner (if any) and all Works that will be supplied in the future by the Builder to the Owner.
20.2 The Owner undertakes to:
c. 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 Builder may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register;
d. indemnify, and upon demand reimburse, the Builder for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register or releasing any Works charged thereby;
e. not register a financing or a change demand without the prior written consent of the Builder; and
f. immediately advise the Builder of any material change in its business practices of selling the Works which would result in a change in the nature of proceeds derived from such sales.
20.3 The Builder and the Owner agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms and conditions.
20.4 The Owner waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA.
20.5 Unless otherwise agreed to in writing by the Builder, the Owner waives its right to receive a verification statement in accordance with section 148 of the PPSA.
20.6 The Owner shall unconditionally ratify any actions taken by the Builder under clauses 20.1 to 20.5.

General

21.1 If any provision of this contract shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
21.2 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 courts of New Zealand.
21.3 The Builder shall be under no liability whatever to the Owner for any indirect loss and/or expense (including loss of profit) suffered by the Owner arising out of a breach by the Builder of this contract.
21.4 In the event of any breach of this contract by the Builder the remedies of the Owner shall be limited to damages. Under no circumstances shall the liability of the Builder exceed the Price of the Works.
21.5 The Owner shall not be entitled to set off against or deduct from the Price any sums owed or claimed to be owed to the Owner by the Builder.
21.6 The Builder may license or sub-contract all or any part of its rights and obligations without the Owner’s consent. The Owner agrees and understands that they have no authority to give any instruction to any of the Builder’s sub-contractors without the authority of the Builder.
21.7 The Builder reserves the right to review this contract at any time. If, following any such review, there is to be any change to this contract, then that change will take effect from the date on which the Builder notifies the Owner of such change.
21.8 Neither party shall be liable for any default due to any act of God, war, terrorism, fire, flood, drought, storm or other event beyond the reasonable control of either party.
21.9 The failure by the Builder to enforce any provision of this contract shall not be treated as a waiver of that provision, nor shall it affect the Builder’s right to subsequently enforce that provision.
21.10 This contract, the plans and specifications have precedence in that order if there is any inconsistency between them.