- “Building By Design” shall mean Building By Design Ltd, or any agents or employees thereof
- “Customer” shall mean the customer, any person acting on behalf of or with the authority of the customer, or any person purchasing Goods or Services from Building By Design Ltd.
- “Due Date” means in respect of each invoice issued to the Customer by Building By Design, the date that is 5 working days after the invoice date or such other date as agreed in writing by Building By Design.
- “Financing statement”, “financing change statement”, “security interest”, “purchase money security interest”, “attached”, “attachment”, “perfected”, “accession”, “commingled” and all related terms have the meanings given them by the PPSA.
- “Goods” shall mean all goods supplied by Building By Design Ltd to the Customer.
- “Services” shall mean all services provided by Building By Design Ltd to the Customer and shall include all charges for labour and work, hire charges, insurance charges, all costs and charges associated with a change to the original order or quote, or any fee or charge whatsoever associated with the supply of services by Building By Design Ltd to the Customer.
- “Price” shall mean the cost of the Goods or Services as agreed between Building By Design Ltd and the Customer subject to clause 4 of this contract.
- “PPSA” refers to the Personal Property Securities Act 1999.
- “Quote” means a quotation from Building By Design to the Customer for the supply of Goods or Services.
- “Residential construction contract”, “payment claim”, “progress payment” and all related terms have the meanings given them by the Construction Contracts Act 2002.
- Where a quote is given by Building By Design Ltd for Goods or Services:
- The quote shall be valid for 14 days from the date of issue; and
- The quote shall be exclusive of Goods and Services Tax unless specifically stated to the contrary.
- Building By Design reserves the right, by notice to the Customer, to alter or amend any Quote before receipt by Building By Design of acceptance of the Quote by the Customer.
- Building By Design reserves the right, by notice to the Customer, to alter or amend any Quote at any time prior to the supply of Goods or Services where the alteration or amendment is due to an increase in the cost to Building By Design that is beyond the control of Building By Design.
- Where Goods or Services are required in addition to the quote the Customer agrees to pay for the additional cost of Goods or Services. All quotes are issued under the assumption that existing structures comply with relevant building codes and standards.
- Payment for Goods and Services supplied by Building By Design is due on the Due Date unless otherwise approved in writing by Building By Design. Building By Design may in its sole discretion decide that no Goods and Services shall be supplied to the Customer until payment is received by Building By Design in advance.
- If payment for any Goods or Services is not made by the Customer to Building By Design in full by the date the Customer shall deliver the Goods to Building by Design on demand. In the event the Customer does not comply with a demand immediately upon receipt or deemed receipt, Building By Design shall be entitled to enter on the Customers premises at any time and do all things necessary to take possession of the Goods.
- Without limiting the application of clauses 3.1 and 3.2, if Building By Design Ltd decides to issue a payment claim pursuant to the Construction Contracts Act 2002 then the progress payment set out in the payment claim shall become due and payable as set out in the said Act being 5 working days after the payment claim is served on the Customer.
- Interest may be charged on any amount owing after the Due Date at the rate of 3% per month or part month.
- Any expenses, disbursements and legal costs incurred by Building By Design Ltd in the enforcement of any rights contained in this contract shall be paid by the Customer, including any solicitor’s fees on a Solicitor-client basis or debt collection agency fees.
- Receipt of a cheque shall not constitute payment until such cheque has cleared.
- Where no price is stated in writing or is otherwise agreed to orally, the Goods and/or Services shall be deemed to be sold at the current price applying at the date on which the invoice for the Goods or Services is issued to the Customer.
- The price may be increased by the amount of any reasonable increase in the cost of supply of the Goods or Services that is beyond the control of Building By Design Ltd between the date of the contract and delivery of the Goods or providing of the Services.
5. RESERVATION OF TITLE
- Property and ownership in any Goods will not pass to the Customer but will remain with Building By Design until payment in full of all amounts owing to Building By Design, provided also that if the Goods become fixtures then that shall not extinguish or diminish the obligation of the Customer to pay Building By Design or affect Building By Design’s rights to recover such Goods.
- Where the provision of Goods or Services is not completed within 7 days of the commencement date of the job, Building By Design shall be entitled to issue invoices for progress payments at weekly intervals.
- The Customer agrees with Building By Design Ltd that all Goods shall be subject to a purchase money security interest and it shall treat the security interest in the Goods as a continuing and subsisting security with priority over a registered general security and any unsecured creditors despite the fact of the Goods having become fixtures at any time before payment has been made for them.
6. PERSONAL PROPERTIES SECURITIES ACT
- In consideration of Building By Design supplying the Goods to the Customer, at the request of the Customer, the Customer, by signing these Terms of Trade:
- Grants to Building By Design Ltd a purchase money security interest (“PMSI”) as defined by the PPSA in the Goods; and
- Agrees that any of the Goods or proceeds of sale of the Goods coming into existence after the date of these Terms of Trade will come into existence subject to the PMSI granted herein and the terms of these Terms of Trade without the need for any further action or agreement by any party; and
- Acknowledges that the Customer has received valuable consideration from Building By Design Ltd and agrees that it is sufficient; and
- Agrees that the PMSI has attached to all Goods supplied now or in the future to the Customer and that the attachment of the PMSI has in no way been deferred or postponed from the date recorded herein.
- Building By Design Ltd reserves the right to register a financing statement in respect of any Goods supplied by Building By Design Ltd to the Customer pursuant to these Terms of Trade and in respect of which credit has been extended by Building By Design Ltd to the Customer. The costs of registering a financing statement or a financing change statement shall be paid by the Customer.
- The Customer waives their right to receive a copy of the verification statement confirming registration of a financing statement, or a financing change statement relating to the security interest under these Terms of Trade.
- The Customer shall promptly, on request by Building By Design Ltd, execute all documents and do anything else reasonably required by Building By Design Ltd to ensure that the PMSI created by these Terms of Trade constitutes a perfected security interest over all Goods supplied.
- The Customer shall not agree to allow any person to register a financing statement over any of the Goods supplied by Building By Design Ltd without the prior written consent of Building By Design Ltd and will immediately notify Building By Design Ltd if the Customer becomes aware of any person taking steps to register a financing statement in relation to such Goods.
- Building By Design Ltd and the Customer agree that nothing in sections 114(1)(a), 116, 117(1)(c), 119, 120(2), 121, 125, 126, 127, 129, 131, and 132 of the PPSA will apply to these Terms of Trade, or the security interest under these Terms of Trade.
7. CONSTRUCTION CONTRACTS ACT 2002
- The parties acknowledge that all provisions of the Construction Contracts Act 2002 shall apply to this contract except where inconsistent with this contract.
- The parties further acknowledge that all provisions of the said Act, including those sections listed in section 10 of the said Act, shall apply to this contract even if it is a residential construction contract as that term is defined by the said Act.
- The Customer acknowledges that unless otherwise agreed in writing between the Customer and Building By Design the Customer is responsible for obtaining any required building consents or resource consent in respect of Services provided by Building By Design.
9. AGREEMENT TO MORTGAGE
- For better securing the price of the Goods or Services supplied pursuant to these Terms of Trade, Building By Design Ltd shall have the right to mortgage or charge the property of the Customer to which the Goods and Services are being supplied, or any other property owned by the Customer.
- The terms of such a mortgage shall incorporate such covenants and conditions as are included in Memorandum of Mortgage 2007/4238, or the most current Auckland District Law Society all obligations Memorandum, which Memorandum(s) is registered at the various land registries of Land Information New Zealand.
- The Customer hereby irrevocably nominates and appoints Building By Design Ltd to be the attorney of the Customer for the purposes registering a mortgage as provided for by this clause.
- For the purposes of this clause “property” means real property.
- The Goods remain at Building By Design Ltd’s risk until the delivery to the Customer, but when title passes to the Customer pursuant to clause 5.1 of this contract the Goods are at the Customer’s risk whether delivery has been made or not.
11. LIMITATION OF LIABILITY
- Except as otherwise provided by statute Building By Design Ltd shall not be liable for:
- Any loss or damage of any kind whatsoever whether suffered or incurred by the Customer or another person whether such loss or damage arises directly or indirectly from Goods or Services or advice provided by Building By Design Ltd to the Customer and without limiting the generality of the foregoing of this clause Building By Design Ltd shall not be liable for any consequential loss or damage of any kind including without limitation any financial loss; and
- Except as provided in this contract Building By Design Ltd shall not be liable in contract, or in tort, or otherwise for any loss, damage, or injury beyond the value of the Goods or Services provided by Building By Design Ltd to the Customer; and
- The Customer shall indemnify Building By Design Ltd against all claims of any kind whatsoever however caused or arising and without limiting the generality of the foregoing of this clause whether caused or arising as a result of the negligence of Building By Design Ltd or otherwise, brought by any person in connection with any matter, act, omission, or error by Building By Design Ltd its agents or employees in connection with the Goods and Services.
12. CONSUMER GUARANTEES ACT
- The guarantees contained in the Consumer Guarantees Act 1993 are excluded where the Customer acquires Goods and Services from Building By Design Ltd for the purposes of a business in terms of section 2 and 43 of that act.
- No representation, condition, warranty or premise expressed or implied by law or otherwise applies to Goods or Services except where Goods are supplied or Services provided pursuant to the Consumer Guarantees Act 1993 or except where expressly stated in this contract.
- Building By Design Ltd does not provide any warranty that the Goods are fit and suitable for the purpose for which they are required by the Customer and shall not be liable if they are not.
- Building By Design Ltd shall, without any liability, and without any prejudice to any other right it has in law or equity, have the right by notice to suspend or cancel in whole or in part any contract for the supply of Goods or Services to the Customer if the Customer fails to pay any money owing after the due date, or if the Customer commits an act of bankruptcy as defined in section 19 of the Insolvency Act 1967, or if liquidation proceedings are commenced in relation to the Customer, or if the Customer shall otherwise become bankrupt or insolvent, or if any other event occurs which evidences a lack of credit worthiness or solvency on the part of the Customer.
- Any cancellation or suspension under clause 14.1 of this agreement shall not affect Building By Design Ltd’s claim for money due at the time of cancellation or suspension or for damages for any breach of any terms of this contract or the Customer’s obligations to Building By Design Ltd under this contract.
- The Customer shall not assign all or any of its rights or obligations under this contract without the written consent of Building By Design Ltd.
- Building By Design Ltd shall not be liable for delay or failure to perform its obligations if the cause of the delay or failure is beyond its control.
- Failure by Building By Design Ltd to enforce any of the terms and conditions contained in this contract shall not be deemed to be a waiver of any of the rights or obligations Building By Design Ltd has under this contract.
- The law of New Zealand shall apply to this contract except to the extent expressly negated or varied by this contract.
- Where the terms of this contract are at variance with the order or instruction from the Customer, this contract shall prevail.
- Any dispute shall be determined in accordance with the provisions of the Arbitration Act 1996.
- If any provision of this contract shall be invalid, void or illegal or unenforceable the validity existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
- Any of the following done by or on behalf of the Customer shall constitute a binding contract and acceptance of these Terms and Conditions.
- Acceptance of any Quote;
- The giving of any instructions to Building By Design that are acted upon; Or
- Any express or implied authority given to Building By Design to provide Goods or Services to the Customer.