1. GENERAL

1.1 The Company will contract on these terms only, and the Terms shall be deemed to be included in and govern each Contract. Receipt by the Company of an order (following proposal and quotation) from the Customer (whether by verbal or written order or quotation acceptance) will be deemed to be acceptance by the Customer of these Terms, notwithstanding anything stated to the contrary in the Customer’s enquiries, orders or elsewhere.

1.2 Without limiting any other provision of these Terms, the terms of each Contract shall exclusively govern the supply of Goods and Services, and all other terms, conditions, warranties, descriptions, representations, conditions as to fitness or suitability for any purpose, tolerance to any conditions, mechanicability or otherwise (whether of a like nature or not) and whether expressed or implied by law, trade, custom or otherwise are expressly excluded.

1.3 No agent or representative of the Company is authorised to make any representations, warranties, conditions or agreements not contained in any applicable Contract or expressly confirmed by the Company in writing, and the Company is not in any way bound by any such unauthorised statements, nor can any such statements be taken to form part of the Contract.

1.4 If any person has agreed to guarantee the Customer’s obligations to the Company, the terms of the Guarantee shall apply as between the Guarantor(s) and the Company, and the Guarantor shall complete the Guarantee document attached below.

2. DEFINITIONS AND INTERPRETATION

In these Terms of Trade:

2.1 These Terms are entered into on behalf of and are intended to bind and ensure to the benefit of the Company and the Company’s successors and assigns.

2.2 In these Terms, in addition to any terms specifically defined:

Amount Owing means, at any time, all or any part of the Contract Price which remains unpaid, and includes any other sums due under any relevant Contract, and/or which the Company is otherwise entitled to charge to the Customer under the Contract, and includes any other amounts which are otherwise owing by the Customer to the Company (in whatever capacity).

Customer means the person, firm, trust, partnership or company buying the Goods and/or Services from the Company and who has engaged the Company to present a proposal describing and detailing the scope of work (including the Goods and Services) and pursuant to the Customers order, undertake a renovation project for the supply and installation of bathroom and/or kitchen ware (“renovation project”) at the Premises as accepted by the Customer, or any person acting with ostensible authority (direct or implied) on behalf of the Customer.

Company means Form Renovations Ltd and any related company as defined in the Companies Act 1993 and any amending or substituting legislation;

Contract means each contract formed between the Company and the Customer from time to time for the purchase, supply and delivery of Goods and/or the supply of Services, of which these Terms form part;

Contract Price means the price of the Goods and/or Services as agreed between the Company and the Customer, subject to any variation in accordance with the provisions of the Contract or these Terms;

Event of Default means an event where:

(a) any Goods are seized by a third party or become subject to a prior-ranking security interest granted to or created in favour of any third party;

(b) the Customer fails to comply with any Contract or any other agreement with the Company relating to the sale, purchase or supply of Goods or Services generally; or

(c) the Customer enters into any composition or arrangement with its creditors;

(d) the Customer is subject to any event which is in the nature of dissolution, winding up, bankruptcy, liquidation, insolvency or receivership, or which generally precedes such an event; or

(e) an event occurs or information becomes known to the Company which, in the Company’s opinion, might materially affect the Customer’s creditworthiness, the value of the Goods the subject of the Security Interest, or the Customer’s ability or willingness to comply with its obligations under any Contract or any other agreement with the Company relating to the sale, purchase or supply of Goods generally.

Force Majeure means any event, whether natural or derived from human action or otherwise, including any Government entity, requirement, restriction or failure to act, or any unavoidable accident or other similar cause beyond the reasonable control of the party claiming the benefit of clause …, which that party is unable to overcome by the exercise of reasonable diligence and at reasonable cost; but excluding any event which the party affected could have prevented or overcome by exercising a standard of reasonable care, or lack of funds for any reason.

Guarantee means the personal guarantee terms set out in the Company’s account application process, or as otherwise provided to and accepted by a Guarantor;

Guarantor means each person who has agreed to provide the Guarantee in favour of the Company, either pursuant to the Company’s online account application process or pursuant to any relevant terms of the Contract;

Person means a corporation, association, firm, trust, company, partnership or individual;

PPSA means the Personal Property Securities Act 1999;

Security Interest means each security interest created under the PPSA evidenced by and recorded in these Terms;

Services means any services supplied by the Company to the Customer pursuant to the terms of the Contract from time to time;

Goods means all goods purchased by the Customer from the Company which are the subject of a Contract and these Terms;

Terms means the Company’s terms and conditions of sale as set out in this document, and as may be varied in writing from time to time.

Practical Completion means the point in time in the renovation, or other building project as the case may be, as reasonably determined by the Company in its sole its discretion, at which the renovation or building object is capable of beneficial occupation and use, or complete, except for minor omissions and/or defects (“snags”) that can be remedied without undue interference or disturbance to the occupier.

Premises means the premises owned, leased occupied or which are in the care custody and control by or of the Customer and where the Goods and Services are to be delivered, installed and provided.

Variation cost means the cost for the supply and delivery of goods and services which fall outside of the scope of work as defined in a proposal.

Proposal means a proposal describing and detailing the scope of work, including the provision and delivery of those Goods and Services required, to achieve completion and delivery of a renovation or other project as specified.

Order means the Customers order to the Company to supply and deliver Goods and Services for the renovation or other project and will be on such forms as the Company shall from time to time determine

2.3 Headings are used as a matter of convenience only and shall not affect the interpretation of these Terms.

2.4 References to the PPSA, the CGA, the FTA, the Privacy Act 1993 and any other relevant statutes include that legislation as it is from time to time amended, re-enacted or substituted, and includes any statutory instruments, regulations and orders issued under such legislation.

2.5 Unless the context otherwise requires, words and phrases in these Terms have the corresponding meanings given to them in, or by virtue of, the PPSA.

3. ACCEPTANCE

3.1 Where these Terms form part of a written quotation, unless stated otherwise, the quotation is open for acceptance for a period of 30 days from the date of quotation. The quotation may be withdrawn by the Company at any time before acceptance.

3.2 Acceptance arises upon receipt by the Company of the Customer’s written acceptance, whether by email or otherwise, unless the Company agrees otherwise, which time shall be the date of the Contract.

4. PRICE

4.1 Unless otherwise agreed in writing, the Goods and Services will be invoiced and sold at the Contract Price, and the Customer shall pay the Contract Price in accordance with the Contract. The Contract Price is based upon rates and costs as at the date of the Contract relating to the cost of materials, transport, labour, customs duty, insurance and other rates and costs. The Contract Price shall be increased by the amount of any increase in the costs of any such items or any other factors including (without limitation) any variation, any change in the exchange rate affecting the cost of supply, production, availability, and/or delivery of the Goods and Services, due to circumstances beyond the control of the Company between the date of the Contract and the date of actual delivery and/or supply of the Goods and Services to the Customer.

4.2 Unless the Contract expressly provides otherwise, GST and any other taxes and duties assessed or levied in connection with the supply of the Goods and Services to the Customer are not included in (and shall be payable in addition to) the Contract Price. Where the payment of such taxes or duties is the responsibility of the Company at law, the Contract Price shall be increased by the amount of such taxes or duties. When GST, sales or other taxes or duties are expressly included in any quotation given by the Company, any increase in the amount of such GST, sales or other taxes and duties between the date of quotation and the date of delivery and/or invoice of the Goods and Services shall be the responsibility of the Customer and the Contract Price shall be increased accordingly.

4.3 A minimum deposit to the value of 35% of the Contract Price, or such other deposit amount as the Company shall determine, shall be paid prior to the commencement of any work, or service.

5. CUSTOMERS RESPONSIBILITIES

5.1 Notwithstanding anything to the contrary contained in these terms, the customer warrants and undertakes in favour of the company that it will, at its own expense, arrange for all appropriate insurance covers, specifically including (but not limited to) contract works cover, to be taken out and maintained in force prior to, and after the commencement of any work or service by the company at the premises.

5.2 At the date of contract commencement the customer shall, at the Company’s request, present to the Company a current certificate of insurance indicating compliance with this warranty, the types of insurance covered (specifically including contract works), duration and the insured amounts.

5.3 All such insurances shall, at the Company’s request, name the Company as additional insured, and show in force for as long as may be required to protect the Company.

5.4 All insurance certificates shall contain the following cancellation clause:

“Should any of the above-described policies be cancelled before the expiration date thereof, the issuing company shall provide 30 days prior written notice to certificate holders.”

5.5 In the event of any damages of any kind caused by the Company or its subcontractors at the Premises, the Owner’s insurance shall operate as the primary insurance and no other insurance of the Company shall be called on to contribute to a loss related to the project.

5.6 The Customer irrevocably indemnifies and holds the Company harmless against any claim, injury or loss, whether direct or consequential made upon the Company, its representatives, contractors or agents as a result of or arising from any failure or breach of the obligations under this clause

5.7 Read in conjunction with clause 7, the Customer shall allow the Company together with its nominated agents and subcontractors free and unobstructed access to the Premises during hours of work being 8:00 am to 5:30 pm Monday to Friday unless otherwise agreed.

5.8 Any defects, impediments, or other obstructions at the Premises and/or discovered at the time of or during installation or other work, including but not limited to structural and non-structural walls, linings, unlevel or out of plumb walls and/or floors, moisture ingress, services (including but not limited to plumbing/drainage, electrical, gas etc) or other general damage which fall outside the agreed scope of work, shall, following consultation with the Customer, be repaired at the Customer’s cost and be added as a variation to the Contract Price, and is payable immediately upon issue of the Company’s invoice.

5.9 Any additional work undertaken by the Company outside the contracted and agreed scope of works will incur time and/or cost adjustments which will be charged as a variation to the Contract Price and is payable immediately upon issue of the Company’s invoice.

5.10 Read in conjunction with clause 6 below, any goods to be provided by the Customer as part of the scope of works must be delivered to site by the Customer prior to the Company’s works commencing. Failure to meet this requirement will incur time and/or cost adjustments which will be charged as a variation to the Contract Price and is payable immediately upon issue of the Company’s invoice.

5.11 Should any goods referenced in 5.10 prove faulty or not suitable for their intended use or application, these may incur time and/or cost adjustments which will be charged as a variation to the Contract Price and is payable immediately upon the issue of the Company’s invoice.

5.12 Any services to be provided by the Customer as part of the scope of works must be performed and completed in a timely manner in accordance with a schedule provided by the Company to the Customer. Failure to meet this requirement may incur time and/or cost adjustments which will be charged as a variation to the Contract Price and is payable immediately upon the issue of the Company’s invoice.

5.13 The Customer’s failure to meet its contracted financial obligations, including meeting payment due dates as set out in this document, may result in project delays or even non completion.

5.14 Any project delay resulting from the Customers failure to meet any contractual or other related obligation may incur time and administration costs which will be charged as a variation to the contract price and is payable immediately upon the issue of the Company’s invoice.

6. DELIVERY OF THE GOODS

6.1 Delivery shall be made at the time and place indicated in the Contract. If the Contract does not specify delivery terms, delivery shall be the Goods shall be delivered to the Premises notified to the Company by the Customer (generally where the work is to ne undertaken). If the Customer fails or refuses or indicates to the Company that it will fail or refuse to take or accept delivery, the Goods shall be deemed to have been delivered when the Company notifies the Customer that they are available for delivery to the Premises.

6.2 The Company reserves the right to deliver the Goods by instalments (where applicable) and the Company shall be entitled to require that each instalment be regarded as a separate contract under the same provisions as the Contract. Should the Company fail to deliver, or make defective delivery of, one or more instalments, this shall not entitle the Customer to repudiate or cancel the Contract.

6.3 Without prejudice to any other rights and remedies which it may have, the Company may charge storage, transportation and disposal expenses and may in addition recover from the Customer any additional costs, charges and expenses incurred by it if the Customer fails or refuses to take or accept delivery, or indicates to the Company that it will fail or refuse to take or accept delivery, at the time specified in the Contract or at any such other times as the Company is able to deliver the Goods.

6.4 The Company shall give the Customer reasonable notice of the dates and times at which and the quantities in which the Goods are to be delivered. The Company shall be entitled to make an additional charge of an amount to be determined by the Company for deliveries made on Saturdays, Sundays and statutory holidays.

6.5 The Customer shall provide suitable access to and a suitable area for unloading the Goods in all weather conditions. Damage to footpaths, kerbs, drains, verges or other property caused by any of the Company’s vehicles in the course of deliveries beyond the kerb line, shall be the Customer’s responsibility, and the Customer shall indemnify, and hereby keep the Company indemnified, against all costs, expenses, claims, actions and liabilities whatsoever in connection therewith.

6.6 The Customer shall at its own cost ensure that any goods for it is responsible to supply and which it has requested the Company to deliver are unloaded immediately upon arrival of the Company’s delivery vehicle(s). In the case of unloading by mechanical means, the Company shall not be bound to dispatch its delivery vehicle(s) until it is satisfied that the equipment required to unload the Goods is on site and ready for operation. The Company shall not be responsible for any malfunction of, or any damage caused to, any such equipment in the course of unloading the Goods, and the Customer shall indemnify the Company against all costs, expenses, claims, actions and liabilities whatsoever in connection therewith.

6.7 The Company will endeavour to have the Goods delivered on the agreed delivery dates, but will not be held liable for late delivery. Late delivery does not entitle the Customer to cancel any order or part order of the Goods.

6.8 The Customer may reject non-conforming or defective Goods by lodging a claim with the Company within 7 days of delivery, quoting the packing slip numbers and delivery date, and the Company may, in its sole discretion, repair, replace or refund the purchase price of the Goods. No Goods are returnable after 7 days of delivery.

6.9 The Company may in its discretion accept the Goods or any part thereof, returned by the Customer but shall not be bound to make any cash refunds in that respect. The Company shall be entitled to make a handling charge for returns of such amounts as the Company in its discretion determines, and such charge may be deducted from the cash or amount of the credit to which the Customer may be entitled in respect of any returned Goods.

7. ACCESS

7.1 The Customer shall provide for the purposes of the contracted work, project installation and provision of Services at no cost to the Company, all necessary facilities including (but not limited to) power, lighting, unloading, hoisting and lifting facilities, labour, site preparation and employee amenities which comply with the appropriate statutory and regulatory requirements.

7.2 Upon the Company delivering Goods or providing Services to the Customer shall ensure adequate safe storage facilities are provided for protection against theft and damage of the Goods or any equipment or other items belonging to the Company at no cost to the Company.

7.3 The Customer acknowledges that it is solely responsible for arranging and providing convenient and lawful access for the Goods and provision of Services to the Premises including but not limited to access by way of stairs, lift or crane as the case may require.

7.4 If the Customer fails to supply proper facilities and convenient access as aforesaid for any reason then the Company may make a further charge to the Customer to cover the additional costs it incurred as a direct or consequential result of such failure.

7.5 If the Customer cannot for any reason accept or take delivery of the Goods or accept provision of the Services the Customer shall be responsible for all resultant additional charges.

7.6 Where the Customer requires work, installation or supply in respect of the renovation project to be co-ordinated with the Customer’s other trades or third parties, then the Customer must provide the Company with a schedule detailing all relevant and necessary information to enable the Company sufficient time to properly coordinate with the Customer’s other tradespersons or third parties.

7.7 The renovation project delivery or supply period shall be extended to cover delays caused by strikes, lockouts, prohibitions, non-availability of materials or any circumstances beyond the Company control.

8. HEALTH AND SAFETY AT WORK ACT 2015.

8.1 The Company shall be responsible for the health and safety of all those working on or lawfully visiting or accessing the work site and, furthermore, to ensure that its activities do not cause harm or injury to any other person. The Company is also responsible for the effects of the work undertaken on health and safety of its employees, subcontractors and to the public. In particular, the Company shall comply with all relevant provisions and requirements of the Health and Safety at Work Act 2015.

8.2 The Customer shall comply with the relevant provisions and requirements of the Health and Safety at Work Act 2015 (as amended) in respect to the premises and shall specifically advise and point out to the Company , prior to commencement of any work , any hazards or risks associated with the work to be undertaken by the Company on or at the premises, and the Customer hereby indemnifies the Company from any loss, injury or damage, whether direct or consequential, arising from any failure to comply with its obligations.

9. MATERIALITY OF TIME

Time shall not be material term or of the essence in respect of the delivery of Goods or the provision and completion of Services. Without detracting from the above, the Company shall not be responsible for any delay in the delivery of Goods or the provision of Services and the Customer shall not be entitled to cancel orders because of any such delay. Dates for delivery of Goods and provision of Services are given in good faith and are not to be treated as a condition of sale or purchase. Delivery of Goods by the Company to a carrier is deemed to be delivery to the Customer.

10. PAYMENT TERMS

10.1 Unless otherwise specified, payments by the Customer arising from this Contract shall be made as follows:

An initial deposit of 35% (thirty five percent) of the total Contract Price must be paid by the Customer immediately upon acceptance of the Contract; and

A second payment of 30% (thirty percent) of the total Contract Price is due on the day the Company commences renovation project work or the supply of Goods and Services to the Customer, whichever occurs first; and

A third payment of 30% (thirty percent) of the total Contract Price is due five (5) working days after the Company commences renovation project work and the supply of Goods and Services to the Customer; and

A fourth payment of 3% (three percent) of the total Contract Price is due ten (10) working days after the Company commences renovation project work for the supply of Goods and Services to the Customer; and

A final payment of 2%, (two percent) being the balance of the total Contract Price, is due immediately after practical completion of the renovation project work and the supply of Goods and Services to the Customer.

10.2 Any progress Payments claimed by the Company under the Construction Contracts Act 2002 (as amended) shall be made no later than 20 days after a payment claim is served on the Customer.

10.3 The Company may, at its sole discretion, require payment of the initial deposit by the Customer prior to processing or acceptance any Order.

10.4 An administration fee may be charged on all overdue amounts in addition to any other charges pursuant to this agreement.

10.5 Compound Interest will accrue on all amounts overdue at the rate of 5.5% per month and will be calculated on a day-by-day basis until all payment is made in full.

10.6 All costs, whether direct or consequential, incurred by the Company as a result of any default by the Customer (including but not limited to administration charges, debt collections costs and legal costs as between solicitor and client) shall be payable by the Customer to the Company, and shall constitute liquidated damages.

10.7 Notwithstanding anything to the contrary contained in the agreement, should the Customer default in any or fail to make any due payment, or commits any act of bankruptcy or any act which would render it liable to be wound up, or in the case of a company or trust a resolution is passed or proceedings filed for the winding up of the Customer, or if a receiver is appointed for all or any assets of the Customer, the Company may cancel any Order without prejudice to any other rights it may have and payment for all completed Orders shall immediately become due.

11. PROPOSAL AND QUOTATION

11.1 The Company’s proposal (inclusive of any quotation) for the supply of Goods and Services, unless specifically otherwise agreed, is valid for thirty (30) consecutive days from the date of issue, first and last days inclusive and shall be exclusive of GST; and

11.2 The Company reserves the right to alter the quotation or proposal because of any act or occurrence of force majeure.

11.3 The Customer acknowledges and accepts that the Company has exercised all care and due diligence in compiling any scope of works, quotation or proposal, and the Company will not be held liable for any time or cost incurred for works which fall outside of the scope of work, but which may be required to achieve completion and delivery of a renovation project as specified. Such works shall constitute variations payable by the Customer.

12. ERRORS OR OMMISSIONS

Any clerical error or omission, whether in computation or otherwise in the scope of works, proposal, quotation, acknowledgement, related document or invoice shall be subject to correction and the corrected item shall prevail.

13. RISK AND TITLE

13.1 The risk of any loss, damage or deterioration of or to the Goods supplied shall pass to the Customer upon delivery in accordance with clause …or the time of despatch, whichever occurs first. Ownership (and a general lien in the Company’s favour) of the Goods remains with the Company and does not pass to the Customer until the Customer:

(a) pays the Amount Owing in full and any Security Interest in the Goods is released and discharged; or

(b) re-sells the Goods pursuant to the authority granted by these Terms.

13.2 Receipt by the Company of any cheque or other bill of exchange or any promissory note shall not be deemed to be payment or conditional payment until the same has been honoured or cleared and until such time shall not prejudice or affect the rights, powers or remedies of the Company against the Customer and/or the Goods.

13.3 While ownership of the Goods remains with the Company:

(a) the Customer will hold the Goods as bailee for the Company;

(b) the Customer shall not use the Goods as security or pledge or otherwise dispose of the Goods except as expressly permitted by these Terms;

(c) the Company may at any time terminate any Contract relating to the Goods and the bailment without notice to the Customer and may thereupon take possession of the Goods;

(d) the Customer must store the Goods separately and clearly identify them as belonging to the Company; and

13.4 The Company may apply any payments received from or on behalf of the Customer in reduction of all Amounts Owing in such order and manner as the Company thinks fit despite any direction to the contrary, and whether before or after the occurrence of an Event of Default in accordance with the provisions of any Contract or these Terms. In the absence of any payment allocation by the Company, payment shall be deemed to be allocated in such manner as preserves the maximum value of the Company’s money security interest in the particular purchased products.

13.5 If the Customer resells or uses any Goods before ownership of the Goods has passed to the Customer, the proceeds of such sale or use shall be received and held by the Customer (in whatever form) on trust for both the Customer and the Company. The Company’s interest as beneficiary under that trust shall be that portion of the proceeds which corresponds to the Amount Owing.

The balance of the proceeds (if any) shall be the Customer’s beneficial interest under that trust.

13.6 The Company may bring an action for the price of the Goods sold even where ownership of the Goods may not have passed to the Customer and shall have a right to stop and retrieve the Goods in transit whether or not ownership has passed.

14. MERGER OF GOODS

If the Goods are attached, fixed or incorporated into any property of the Customer, by way of any manufacturing, building, construction or assembly process by the Customer or any third party, title in the products and services shall remain with the Company until the Customer has made full payment for all Goods. Where those Goods are mixed with other property so as to be part of or constituent of any new goods, title to those new goods shall be deemed to be assigned to the Company as security for the full satisfaction by the Customer of the full amount owing by the Customer to the Company. The Company’s Security Interest in the Goods shall continue in the terms of section 82 of the PPSA (as amended).

15. Recovery of Goods

15.1 In the event of non-payment, or if payment of the Customer’s Account is overdue, the Company shall be entitled without prejudice to any right it has at law or in equity to enter the premises or any place where the Goods are stored whether the Customer’s premises or property or the premises or property of a third party for the purpose of recovering and taking possession of the Goods supplied.

15.2 The Customer warrants to the Company that where the Goods are stored on the premises or property of a third party the Customer is acting as agent for the third party and has the full authority of the third party to authorise entry on to the premises or property of the third party for the purpose of recovering the Goods supplied without releasing the Customer from liability.

15.3 The Company will, notwithstanding its lawful duty of care, not be responsible for any damage reasonably caused in the course of removal of Goods supplied either in the possession of the Customer or a third party and the Customer indemnifies the Company to the full extent in respect of damage caused in the course of removal from the property of a third party. Specifically, Customer indemnifies the Company for all costs and expenses including legal costs as between solicitor and client which it may incur in recovering the Goods and any monies owed to it.

16. WARRANTY

(The Consumer Guarantees Act 1993 applies to any Goods and Services supplied by the Company, except where any such supply or services are to the Customer for the purpose of its business, in which event the Consumer Guarantees Act 1993 shall not apply).

16.1 The Company provides a six (6) year warranty on all workmanship in respect to the supply and delivery of Goods and Services. The warranty period will commence on the date of practical completion, but will not be active until such time as the Customer has fulfilled its obligations as set out in this agreement.

16.2 The Company will provide to the Customer any product warranty on Goods supplied for which a supplier or manufacturer warranty is available.

16.3 Any warranty claims by the Customer must be in writing and be notified to the Company within seven days of a defect or warrantable issue manifesting itself. Subsequent or secondary damage, which in the opinion of the Company, is directly or indirectly caused by prolonged exposure to a defect or warrantable issue will not be covered by the six-year warranty under 16.1 above.

16.4 In respect of any accepted warranty claim the Company will at its discretion replace or repair any faulty Goods.

17. COMPLIANCE

The Customer shall be solely responsible for obtaining any necessary permits under and for compliance with all legislation, regulations, by-laws or rules having the force of law in connection with the installation operation and provision of the Goods and Services, and all costs arising from such compliance requirements.

18. CANCELLATION

The Customer shall not be entitled to cancel an Order (or any part thereof) other than as allowed pursuant to these Terms.

19. PERSONAL PROPERTY SECURITIES ACT 1999 (the PPSA)

19.1 The Customer acknowledges and agrees that, pursuant to the PPSA:

(a) these Terms create, in favour of the Company, a purchase money security interest in all present and after acquired personal property, being Goods which are or become the subject of a Contract, and their proceeds, to secure the payment by the Customer of the Amount Owing;

(b) the Goods constitute collateral until payment of all Amounts Owing have been made to the Company for the Goods and the Security Interest is either discharged by operation of law or released by the Company; and

(c) the Security Interest attaches to the collateral when the Goods are delivered to or received by the Customer pursuant to clause 5; and

(d) the Company may forthwith register a financing statement in respect of the Security Interest.

19.2 The Customer further acknowledges and agrees that, pursuant to the PPSA:

(a) these Terms create, in favour of the Company, a security interest in all of the Customer’s present and after acquired personal property, as security for all Amounts Owing in respect of Services; and

(b) the Company may forthwith register a financing statement in respect of the Security Interest created by sub-paragraph (a) of this clause.

19.3 The Customer undertakes:

(a) to promptly do all things, sign all documents and/or provide any information which the Company may reasonably require to enable the Company to perfect and maintain the perfection of its Security Interests;

(b) to give the Company not less than 14 days’ prior written notice of any proposed change of the Customer’s name and/or any of the Customer’s details (including, but not limited to, changes in the Customer’s address, facsimile number, trading name or business practice);

(c) not to allow any non-purchase money security interest to arise in respect of the Goods unless the Company has perfected the Security Interest created by clause 8.1(a) prior to the Customer taking delivery of the Goods or alternatively, the Customer having first provided priority to the Company in respect of the Security Interest created by clause 8.1(a) over the non-purchase money security interest; and

(d) not to permit the Goods to become accessions or commingled with other goods or mass.

19.4 The Customer waives its right to receive a verification statement in respect of any financing statement relating to Security Interests pursuant to section 148 of the PPSA.

19.5 To the extent permitted by law, the Customer and the Company contract out of Part 9 of the PPSA in that:

(a) the rights and obligations contained in sections 114(1)(a), 125, 129, 132, 133 and 134 of the PPSA do not apply between the Customer and the Company; and

(b) the Customer waives its rights contained in sections 121 and 131 of the PPSA; and

(c) the Customer’s rights referred to in section 107(2)(c), (d), (h) and (i) of the PPSA do not apply between the Company and the Customer.

19.6 The Purchaser agrees that the Security Interests have the same priority in relation to all amounts comprising and corresponding to the Amounts Owing.

20. SECURITY INTEREST

The Customer grants to the Company a Security Interest in all of the Customer’s present and after-acquired property upon which or in respect of which the Company has performed services or in which goods or materials supplied or financed by the Company have been attached or incorporated.

21. LIABILITY

21.1 Except for such warranties which cannot be excluded by virtue of the Consumer Guarantees Act 1993 or any amending or substituting legislation, all warranties, descriptions, representations or conditions whether implied by law, trade, custom or otherwise are, and all liability of the Company, whether in tort (including negligence) contract or otherwise, is expressly excluded to the fullest extent permitted by law.

21.2 The warranties and guarantees implied by the Consumer Guarantees Act 1993 (CGA) or any amending or substituting legislation, all warranties, descriptions, representations or conditions whether implied by law, trade, custom or otherwise and all liability of the Company, whether in tort (including negligence) contract or otherwise, are expressly excluded in relation to the Goods and Services purchased or supplied for the purposes of a business.

21.3 The Customer agrees to the following terms:

(a) The liability of the Company for any loss, damage or injury arising directly or indirectly from any defect in or non-compliance of any of the Goods and Services or any other breach of the Company’s obligations (whether in contract, tort, in equity, under statute or otherwise) shall be limited, and shall not in any case exceed, the lowest of, the Contract Price paid for the Goods and/or Services, the cost of repairing or replacing any Defective Goods and/or the actual loss or damage suffered by the Customer.

(b) The Company will have no liability for any loss of profit, reputational damage, consequential, indirect or special damage, loss or injury of any kind suffered by the Customer or any other person arising from the supply of the Goods and/or Services.

21.4 While the Company will make every effort to ensure the accuracy of any advice, recommendation, information, assistance or service provided by the Company in relation to the Goods and Services supplied by the Company on their use or application, the Company does not accept liability or responsibility in respect thereof.

21.5 The Customer indemnifies the Company upon demand against any and all losses, costs, expenses or other liabilities suffered or incurred by the Company:

(a) as a result of any breach by the Customer of the terms of the Contract or any other agreement relating to the supply of the Goods and/or Services; and

(b) arising under the CGA as a result of any breach by the Customer of any term of the Contract or any other agreement relating to the supply of Goods and/or Services.

21.6 Nothing in these Terms is intended to have the effect of contracting out of the provisions of the CGA or the FTA except to the extent permitted by either of those Acts, and these Terms may be modified or read down to the extent necessary to give effect to that intention.

21.7 Except as otherwise provided above the Company shall not be liable for any loss or damage of any kind whatsoever, arising from the supply of Goods and Services by the Company to the Customer including consequential loss whether suffered or incurred by the Customer or any other person and whether in contract or tort (including negligence) or otherwise and irrespective of whether such loss or damage arises directly or indirectly from the Goods and Services provided by the Company to the Customer. Specifically, the Company shall not be liable, whether directly or consequentially, for any loss, damage or injury arising from damage to wall linings, services, concrete or paved pathways/driveways, floor linings or any other item or thing in completing its Goods and Services and work on the renovation project or the Premises but will exercise all due care completing those services.

21.8 the Company shall not be liable for any breach or default due to the Customer’s failure to meet the terms or conditions imposed by any manufacturer or product warranty.

21.9 The Customer shall indemnify the Company against all claims and loss of any kind whatsoever however caused or arising and without limiting the generality of the foregoing whether caused or arising as a result of the negligence of the Company or otherwise, brought by any person in connection with any matter, act, omission, or error by the Company its agents or employees in connection with the Goods and Services.

22. SUITABILITY

The Company makes no warranty or representation and expressly negates any implied or expressed condition that the Goods and Services will be suitable for a particular purpose or use for which the Customer may use them. The Customer accepts all risk and responsibility for consequences arising from the use of the Goods and Services whether singularly or in combination with other Goods and Services.

23. DIRECTORS AND TRUSTEES GUARANTEE

If the Customer is a Company or Trust, the Director(s) or Trustee(s) signing this contract, in consideration for the Company agreeing to supply the Goods and Services (and where applicable grant at its request credit to the Customer), also sign this contract in their personal capacity and jointly and severally personally guarantee as principal debtors to the Company the payment of any and all moneys now or hereafter owed by the Customer to the Company, and irrevocably indemnify the Company against the Customers default. Any personal liability of a signatory hereto shall not exclude the Customer from the liabilities and obligations contained in these Terms. The signatories and the Customer shall be jointly and severally liable under these Terms and for payment of all sums due.

24. MISCELLANEOUS

24.1 All the original rights, powers, exemptions and remedies of the Company shall remain in force notwithstanding any neglect, forbearance or delay in the enforcement thereof. The Company shall not be deemed to have waived any condition unless such waiver shall be in writing under the signature of the Company or an authorised officer thereof and any such waiver, unless the contrary shall be expressly stated shall apply to and operate only in a particular transaction, dealing or matter.

24.2 The Customer may not assign all or any of its rights or obligations under the Contract without the prior written consent of the Company.

24.3 The Company is entitled at any time to assign to any other person all or part of any debt owing by the Customer to the Company.

24.4 These Terms and each Contract shall be governed by and construed in accordance with New Zealand law, and the parties submit to the non-exclusive jurisdiction of New Zealand courts.

24.5 Where any provision of these Terms is rendered void, unenforceable or otherwise ineffective by operation of law that shall not affect the enforceability or effectiveness of any other provisions of these Terms.

24.6 If the Customer is a trust, then the trustees of that trust will be liable to the Company in their personal capacity unless their liability as (if applicable) professional trustees has been limited by written agreement with the Company

24.7 If the Customer is a partnership, then the partners of the partnership will be personally liable under the Terms of the Contract.

24.8 If there is inconsistency between these Terms and Conditions of Trade and any order submitted by the Customer or any other arrangement between THE COMPANY and Customer, these Terms and Conditions of Trade prevail unless otherwise agreed in writing by the parties.

24.9 Privacy Act 1993, Use of information: The Customer agrees that any information collected and held by the Company about the Customer (and where applicable any Guarantor) by the Customer pursuant to the Contract, may be used from time to time for, inter alia, any credit assessment and control and debt recovery purposes of the Company to register any Security Interest, and for marketing and promotional purposes.

25. COPYRIGHT

25.1 Copyright in all drawings, specifications and any other technical information provided by the Company in pursuance of or arising from this Contract, in whatever form, is the Company’s intellectual property and trade secrets, is of a confidential nature, has a financial value, is vested in and remains the exclusive intellectual commercial property of the Company. The unauthorised use of any kind of any copyright material, or other intellectual property whatsoever belonging to the Company is prohibited, and in the event of any breach of this prohibition the Customer agrees to indemnify the Company to a dollar value the equivalent of twice the Contract Price (as liquidated damages). This amount will be payable by the Customer to the Company on the Company presenting to the Customer reasonable (not conclusive) evidence of such a breach.

25.2 Where the Company has followed a design or instruction furnished or given by the Customer, the Customer shall indemnify and hold the Company harmless against all loss, damages, claims, penalties, costs and expenses to the Company or in respect of which the Company may become liable to any other person, firm or Company arising from the Company following such a design or instruction infringing any patent, trademark, copyright, registered design or breaching any statutory provision or any common law or equitable right.