Terms & Conditions of Trade

1. Introduction

1.1 These Terms set out all of the terms and conditions that apply to the Works that we carry out for you.

1.2 Any other terms and conditions will not apply unless expressly approved in writing by us for a particular Order.

1.3 We may update these Terms on notice to you in writing. Our updated Terms will apply to all Works you order after we have notified you that we have updated our Terms.

1.4 If there is any inconsistency between the documents making up these Terms, unless the parties expressly agree otherwise, the documents will apply in the following descending order of priority: (a) the Order; (b) the Specific Terms; (c) these Terms of Trade (excluding the Specific Terms); and (d) Ancillary Documents.

2. Order Process

2.1 You may order Works from us in accordance with our order processes that we advise to you at any time.

2.2 All Orders are subject to acceptance by us. We may accept an Order (in whole or in part) by issuing an invoice, carrying out the Works, or otherwise confirming the order in writing.

2.3 We are under no obligation to enquire as to the authority of any person placing an Order on your behalf.

3. Carrying Out of the Works

3.1 We will use reasonable efforts to commence the Works on the Commencement Date specified in the relevant Order.

3.2 We will carry out and complete the Works using all reasonable skill and care, in accordance with these Terms, applicable Laws, and Approvals, to achieve Completion by the Due Date for Completion.

3.3 We will deliver the Materials and provide the Works at the location set out in the relevant Order or any other location agreed with you in writing.

3.4 Unless we expressly agree otherwise in writing, the Commencement Date and Due Date for Completion are indicative only.

4. Delay

4.1 We will be entitled to an extension to the Due Date for Completion by reason of any Variation, any cause beyond our control, any breach of these Terms by you, or wherever permitted by these Terms.

5. Approvals

5.1 You will be responsible to apply for, give all notices in relation to, obtain and pay for all Approvals required for the carrying out and completion of the Works.

6. Site Access

6.1 You will allow us and our Representatives non-exclusive possession of the Site on the Commencement Date to the extent necessary to allow us to perform our obligations under these Terms.

6.2 We are not liable for any loss or damage to the Site unless due to our negligence.

7. Completion of the Works

7.1 We may notify you in writing when we consider that the Works have achieved Completion.

7.2 You will, within 10 Business Days after receiving our notice, notify us in writing that the Works have or have not achieved Completion.

8. Materials

8.1 We will ensure that the Materials used in the Works are new (unless otherwise agreed) and satisfy the requirements of these Terms.

9. Title and Risk

9.1 All goods and other Materials comprising the Works will become your property when payment is made in full.

9.2 Risk in the Works will not pass to you until Completion.

10. Variations

10.1 We will carry out Variations to the Works instructed in writing by you at any time prior to the Completion Date.

10.4 The value of any Variation will be agreed between the parties, or failing agreement, determined by us with reference to any schedule of rates, or based on what we consider to be fair and reasonable.

11. Defects

11.1 We will remedy all Defects that you notify to us in writing within 30 days from the Completion Date.

11.2 Nothing in these Terms will affect any rights you may have under sections 362I to 362K of the Building Act 2004.

13. Cancellation

13.1 Either party may cancel an Order by written notice if the other party commits a material breach not remedied within 20 Business Days of written notice, or suffers an Insolvency Event.

13.3 We will not accept cancellation of any Order after the Order has been accepted by us.

14. Price

14.1 The Price will be determined on the basis of either a lump sum or cost reimbursement, as specified in the Order.

14.3 Unless otherwise stated, the Price does not include GST.

14.4 We may charge you for freight, insurance, disbursements, and any applicable taxes, duties and levies, in addition to the Price.

14.5 Unless otherwise specified, any quotation, proposal or estimate is valid for 30 days from the date of issue.

15. Payment

15.1 We may submit invoices on the last day of each month, or upon the achievement of payment milestones.

15.3 You must pay all Amounts Owing to our bank account within 7 days from the date of the invoice, in full without deduction, withholding, set-off or counterclaim.

15.4 If you have any dispute relating to an invoice, you must notify us in writing within 14 days from the date of invoice. After that period, unless there is a manifest error, you will be deemed to have accepted the invoice.

17. Deposit and Guarantee

17.1 We may require that you pay a deposit, or provide a guarantee or other security, before we supply Materials or carry out the Works.

17.2 Any deposit paid to us is non-refundable, unless we expressly agree otherwise in writing, or unless we cancel the order for reasons other than your breach.

19. Late Payments

20. Costs of Recovering Amounts Owing

20.1 You must reimburse us for any reasonable costs we incur to recover any Amount Owing, including debt collection fees and full legal expenses.

22. Health and Safety

22.1 Each party will comply with the Health and Safety at Work Act 2015 and all applicable regulations, standards and codes of practice.

22.2 You must notify us of any known hazards at the Site or arising from your premises.

24. Privacy

24.1 We may collect, use and share Personal Information for the purposes of performing our obligations under these Terms and in accordance with the Privacy Act 2020.

24.4 You and your Representatives have the right to access, and request correction of, any Personal Information held by us.

25. Confidentiality

25.1 Each party must keep confidential all Confidential Information.

25.3 We may refer to you as a customer (including by using your logo) and publish any testimonials or references that you provide to us on our website and associated marketing materials. Please contact us if you do not approve of this.

26. Intellectual Property

26.3 We (or our licensors) own all rights, title and interest in the intellectual property rights in the Works at all times.

26.6 You warrant that the use by us of any designs, instructions or specifications supplied to us by you will not infringe the intellectual property rights of any other person.

28. Suspension of Works

28.1 If you effectively stop us from continuing the Works, we may suspend the Works immediately after serving written notice. All costs of suspension and recommencement are payable by you.

29. Dispute Resolution

29.1 If a dispute arises, either party may give a Dispute Notice to the other setting out the details of the dispute. The parties must then follow the process set out in these Terms to resolve the matter before commencing legal proceedings.

These Terms are governed by the laws of New Zealand. Key general provisions include:

• Governing law: New Zealand
• Assignment: You must not assign your rights without our prior written consent
• Amendments: Any amendment must be in writing signed by each party
• Force majeure: We will not be liable for failure caused by events beyond our reasonable control
• Waiver: A single exercise or waiver of a right does not prevent any other exercise of that right
• Relationship: We carry out Works as an independent service provider — nothing in these Terms creates employment, agency or partnership

35. Additional Charges

If you request Works urgently requiring staff to work outside normal business hours (including weekends or public holidays), additional labour costs will apply at time and a half normal rates, unless otherwise agreed. We reserve the right to vary the Price in the event of increases in the cost of labour or Materials.

39. Specification of Materials

You acknowledge and accept that:

• We are only responsible for parts replaced by us
• We give no guarantee against crazing, cracking, chipping or scratching beyond our control due to the nature of the product
• Variations of colour, shade and grain are inherent in all kiln fired products and natural stone — while every effort will be taken to match colour, we shall not be liable for variations between batches
• Materials may fade or change colour over time, or expand, contract or distort due to exposure to heat, cold or weather

40. Your Acknowledgements

You acknowledge that we offer no guarantee against naturally occurring defects over time, including cracking of paint over plaster, delaminating of plaster caused by hydroscopic movement or dampness, or damage caused by contact with chemicals, solvents or oils.

41. Site Conditions

41.1 We are not responsible for the removal of rubbish from the Site unless otherwise agreed. All rubbish generated by us will be placed in a designated area appointed by you.

41.2 You agree to provide us with adequate access to water, electricity, toilet and washing facilities as required.

42. Underground Locations

42.1 Prior to commencement of any work you must advise us of the precise location of all underground services on the Site and clearly mark the same, including electrical, gas, sewer, water, irrigation, telephone and fibre optic services.