Terms and Conditions of Trade
1. CLIENT’S ACKNOWLEDGEMENTS
1.1. This Contract becomes legally binding between the two parties (based on these terms and conditions contained herein) and deemed accepted by the Client once the Client placing an order for the supply of Goods, pays a deposit, or if the Client accepts the provision of the Services from the Contractor. In such events, the Client will immediately be bound, jointly and severally, by these terms and conditions.
1.2. Notwithstanding clause 1.1, the Contactor reserves the right to charge an initial fee based on the Contractor’s hourly rate, for time involved in travelling to and from a Client’s Site, the preparation of the quotation, upon acceptance of the quotation this initial fee shall be waived from the overall Price for the Services. However, if the Client decides not to accept the quote or decides to go with another third party, the Client accepts and agrees that the initial fee then becomes immediately due and payable in accordance with the Contractor’s payment terms.
1.3. No amendment of this Contract will be of any force or effect, unless in writing signed by an authorised representative of each party.
1.4. Upon acceptance and/or signing (including online acceptance) of this Contract both parties declare and confirm, they are lawfully entitled to enter this Contract (including where the Client is to act in the capacity as a trustee of any trust (“Trust”). Furthermore, the Client declares that they are not insolvent and accepts that this Contract creates an enforceable legal agreement for the Client to meet his/her obligations and responsibilities under the Contract (including payment when requested).
1.5. If the Client is primarily a Trust entity, the Client declares that the provisions of the Trust do not imply to exclude or remove the right of indemnity of the Client against the Trust. The Client agrees to notify the Contractor forthwith, if there are any substantial changes to the Trust that could affect the business relationship and the Client’s obligations under the Contract which includes any variations or resettlements of trust assets or any changes of trustees, that may or could be the basis of any security under any contract with the Contractor.
1.6. The Client acknowledges and accepts that:
(a) Unless any report, description, order, or deal is stated in writing, by Summit Plumbing Limited or its duly official representative, the Contractor shall not be bound by any such unapproved statements;
(b) The Contractor’s knowledge, understanding and skill is founded on the Contractor’s time in the industry, thereby, any suggestions or plans provided by the Contractor during the provision of the Services to the Client or the Client’s agent/representative is done so in the best interest of the Client. If the Client or the Client’s agent/representative chooses to ignore such suggestions or plans when offered by the Contractor, the Contractor shall be entitled to halt the delivery of the Goods or the commencement of the Services, if the Contractor believes any harm or danger to any person and/or damage to the location, could happen, until the Contractor obtains written consent from the Client or their agent/representative to continue as planned. The Contractor shall have no liability or responsibility for any indirect or consequential injury, loss, damage, or expense whatsoever that arises, after the Contractor is instructed to re-commence the Services;
(c) Goods are always subject to availability, if any ordered Goods become unavailable, the Contractor agrees to notify the Client and offer alternative Goods and will advise any changes in the quoted Price prior to delivery. Billing for changes in Goods supplied whether an increase/decrease will be done so, in accordance with clause 5, where required;
(d) Both parties agree to fully comply with all current requirements by law pertaining to electronic messaging (including but not limited to, Unsolicited Electronic Messages Act 2007) in the use of emails or mobile messaging or e-signatures in accordance with Contract and Commercial Law Act 2017 for compliance, which may form part thereof, the acceptance to this Agreement;
(e) Any change to contact details or any proposed change of ownership in respect of the Client’s business (including but not limited to, directors or shareholders of a company or a guarantor (if applicable)) must be advised to the Contractor immediately. Any communications will be sent to the last contact details that were provided;
(f) Non-receipt, delayed receipt, inadvertent misdirection, or interception by third parties in any form of communication is a risk, whether electronic, postal, or otherwise. The Contractor is not responsible for any such matters beyond their control;
(g) If a quotation involves estimating measurements and quantities, it shall be the responsibility of the Client to verify the accuracy of the Contractor’s estimated measurements and quantities before the Client places an order based on such estimates and/or accepts such quotation; and
(h) Any Services requested by the Client to be urgently done within a specified time period that results in the Contractor’s staff having to work outside normal business hours 7am-5pm Mon-Fri (including but not limited to, working through lunch breaks, weekends and/or Public Holidays), then overtime rates will apply for the additional labour cost, unless otherwise agreed between the Contractor and the Client at the time of signing this Contract.
1.7. Insurance Claims:
(a) If the Goods and/or Services provided by the Contractor are the subject of an insurance claim that the Client has made, then the Client acknowledges and accepts the responsibility of payment of any excess due and payable to the insurance company and agrees to honour their obligation for payment when due, for all Services carried out by the Contractor, regardless of whether the insurance claim is successful; and
(b) The Client grants the Contractor permission to engage on the Client’s behalf directly with the Client’s insurance company to effect payment upon the completion of the Services and/or any progress payment, if so, agreed by all parties.
1.8. Inspection and Reporting Assessments: - Where the Client requests the Contractor to diagnose a fault that requires investigation, disassembly, testing and/or reporting on the Client’s goods, the Client shall be liable for all costs involved in doing so, irrespective of whether the repair goes ahead or not.
1.9. Signage: It is agreed between the Contractor and the Client that during the provision of the Works, the Contractor is entitled to erect a business sign to promote any or all services the Contractor can perform.
2. CREDIT ACCOUNT AUTHORITY
2.1. If a third party is to be engaged by the Client and given full authority to act on the Client behalf, as their nominated agent, in the ordering of any Goods or Services, payable under the Client’s credit account with the Contractor, then the Client must advise the Contractor in writing (including any limits place on that authority i.e. $ thresholds), prior to that party being able to request the supply of any Goods or Services.
2.2. Once the Client’s nominated agent has been approved to make decisions and transactions on the Client’s behalf, this authority shall continue until such time as written notice is received by the Contractor to the contrary, that the named agent no longer has this authority to act on the behalf of the Client.
2.3. Notwithstanding the conditions of clauses 2.1 and 2.2, the Client remains liable for all and any costs the Contractor suffers (including any profit margin, it is agreed, the Contractor can pass on) in providing any Goods or Services, or variation/s regardless of whether the Client requested the supply directly or the Client’s nominated agent.
3. ERROR AND OMISSIONS
3.1. The Contractor shall have no liability, unless attributed to negligence and/or willful misconduct by the Contractor, arising from any typographical, clerical, or other error, mistake or omission in any information, communication or other document or information issued by it.
4. PAYMENT TERMS
4.1. The Price will be as stated on the invoice supplied to the Client or as stated in the quotation (inclusive of any variations prior to acceptance (if known)) but all quoted Prices shall only be binding for the period offered by the Contractor, if no date is stated, then the quote shall apply for a period of no less than 14 Business Days, outside of this timeframe, the Contractor reserves the right to re-quote any job accepted if the 14 Business Days have expired, before the Services commence.
4.2. Notwithstanding clause 4.1 if no quote is supplied, the Price shall be ascertained by:
(a) No Quote: The Client will be liable to pay the standard labour rate during the Contractor’s working hours between 7am -5pm (Monday-Friday) plus all Goods costs, travel, plus the Contractor’s margin; and
(b) If the Contractor is requested to supply an estimate Price based on a visual inspection of the repairs requested of the Contractor by the Client, shall not be deemed binding upon the Contractor as the full and final Price for the job, as the full and final Price can only be validated once the Services are completed. In the interest of being fair and reasonable in respect of the pricing with the Client, the Contractor agrees to keep the Client informed, if additional damage is discovered during the repair process, if the Contractor considers the final Price may exceed more than 10% of the original estimate, so the Client can grant approval first before the Contractor continues further; and
(c) Parking Charges: In all cases, if while undertaking the Services for the Client, the Contractor is required to pay for parking or any other vehicle travel costs (including but not limited to, parking permits, tolls, or paid parking), then such costs will be passed to the Client.
4.3. Deposits due are at the discretion of the Contractor and deposit amounts may vary due to the nature of the Goods and Services to be supplied. Any deposit required by the Contractor will be stated at the time of quoting and shall become immediately due and payable to the Contractor upon the Client’s acceptance. No supply of Goods or the commencement of the Services will take place until any agreed deposit is paid by the Client to the Contractor. Full payment of any custom-made Goods, which are non-refundable, must be paid upfront before an order is placed.
4.4. The Price will be payable by the Client by the due date established by the Contractor, as follows:
(a) Prior to, or at the time of Delivery of the Services (complete with the supply of any Goods where applicable); or
(b) Credit Approved Client’s:
(i) As agreed by both parties, by the date as stated in the Contractor’s schedule for payments; or
(ii) Progress payment/instalment will be billed monthly, unless otherwise stated in the schedule of payments and shall include the reasonable value of authorised variations and the value of any Goods delivered to the Site but not yet installed (all Goods delivered will be at the Client’s sole risk as per clause 8.1) ; or
(iii) Upon the issue of a statement to the Client’s operating business address, 20 Business Days following the end of every month; or
(c) In all other cases, unless stated otherwise, the date for payment is 14 Business Days from the date of any invoice/s issued (by email or post) to the Client by the Contractor.
4.5. Receipt for payment can be made by direct bank transfer or any other method acceptable, and agreed to, by the Contractor. Outside of these options, the Contractor must grant permission first, before the supply of any Goods or commencement of any Services will occur.
4.6. If the cost to the Contractor in performing the Services increases after this Contract has commenced due to any increase, or the introduction by a statutory or other authority of a tax, duty, charge, levy, or legislation then the amount of the increase is to be treated as a variation and clause 5 shall apply.
4.7. Unless otherwise agreed between the Contractor and the Client, call-outs charges may apply (rates excl GST) for all Services performed, outside of normal business hours (including but not limited to, weekdays, weekends and/or Public Holidays or any emergency call-out for critical equipment after hours, that results in the Contractor having to cancel or reschedule other work. All call-out charges will be based on the Contractor’s hourly rate, the per kilometer travel rate plus Goods used) to undertake the Services.
4.8. If this Contract is subject to retention monies (“Retention Money”) then such funds shall be dealt with in accordance with Subpart 2A – sections 18(a)-18(g) & 18 (i) of the Construction Contracts Act 2002 and including part thereof the Construction Contracts (Retention Money) Amendment Act 2023. Retention Money (Section 18C relating to Commercial Contracts for Retention Money held on trust) is a set amount or equal to a percentage of the Price and as such, no Retention Money shall be used other than to remedy defects in the performance of Services covered by this Contract. Retention Money will be held for the agreed period following completion of the Services during which time all Services not fully completed are to be finished and/or defects are to be remedied.
4.9. For the avoidance of doubt, it is agreed by both parties that the Client may not set-off against any monies due to the Contractor by the Client, that the Client considers the Contractor owes the Client, it must not be automatically deducted from the Price, nor can any payment due be withheld by the Client because part of any invoice is in dispute. Whereas the Client believes that there has been a mistake made, and monies are due, the Contractor requests that the Client contacts the Contractor within 7 Business Days of receipt of the invoice/statement, so that the Contractor may investigate any alleged error. If a mistake has occurred, the Client’s subsequent invoice/statement will be adjusted.
4.10. Apart from where the Contractor states otherwise, GST is not included in the Price, for all relevant Goods and Services supplied (including but not limited to, all stock, services, costs, duties, fees, and freight charges) except where GST is explicitly shown as included in the Price.
5. VARIATIONS
5.1. The Contractor’s Price may be subject to adjustment (upon written notice to the Client), due to any of the following:
(a) If the Client requests a variation to the Services (including architects and structural engineers’ plans, dimensions or designs, or any other contractor, the Client directs the Contractor to take instructions from); or
(b) Unforeseeable problems with the Site which are only revealed when undertaking the Services (including unsuitable ground conditions, blocked entrances and/or overhead obstructions effecting Delivery or existing plumbing that is discovered damaged due to age, rodents and/or insects, which needs to be replaced to bring the plumbing up to code and compliant with health and safety regulations) which the Contractor considers should be rectified for the safe completion of the Services; or
(c) Travel costs for additional visits to the Site may apply if the distance is more than thirty (30) minutes, when access is limited due to poor weather conditions or any work not completed by a third-party contractor engaged by the Client, resulting in multiple visits to the Site; or
(d) Confronting hazardous waste (including asbestos, contaminated ground soil, or any other form of dangerous waste); or
(e) Discovery of any fossils, artifacts or any other remains of geological or archaeological interest; or
(f) Needing to dewater any mains, ducts or other conduits or channels that may flood or allow water ingress because of the Services; and
(g) Any increases or decreases with the pricing of the Goods or labour beyond the Contractor’s reasonable control (such as third-party suppliers’ costs, fluctuations with the currency exchange rate or government/industry salary award rates etc.); and
(h) Any adjustment to the Price due to variations shall be included at the time of the next payment claim made by the Contractor.
5.2. The Client will have the opportunity to respond to such additional costs, if no reply is received within 5 Business Days for the revised quote will be deemed to be acceptance of additional charges, at the Contractor’s actual cost plus the Contractor’s margin (i.e. an amount to cover the Contractor’s overheads, administrative costs, and profit), failure to comply will permit the Contractor to assume that the variation invoice is accepted without dispute. Payment will be due as per the date stated on the said invoice.
5.3. Written permission from the Client must be obtained prior to any variation submitted by the Contractor or an EOT as per clause 7.2 can be performed. The Client must not refuse to grant permission for any variation that is necessary for the Services to meet compliance with legal requirements.
5.4. If, after the Contract is entered, the Client or the Client’s representative (including but not limited to, architect, engineer or any other person acting on behalf of the Client) reduces the required numbers of certain Goods, change of mind or makes a request for substitute Goods, then at the Contractor’s sole discretion, a processing fee of twenty-five percent (25%) of the value of the Goods received back in stock, plus any freight for the non-defective Goods may apply and as defined in this Contract any change to the Goods or Price after acceptance will be subject to clause 5.
5.5. The Contractor must allow a reasonable reduction to the time allocated for the Services, if a variation reduces the Price for the Services required to achieve completion.
6. PERFORMANCE OF THE SERVICES
6.1. The Contractor will endeavour to commence the Services on the commencement date specified in this Contract, and to complete the Services within the timeframe stated in this Contract, subject to clause 7.1(a). The Contractor will not be liable for any loss or damage incurred by the Client because of the Services late commencement, however, the Contractor will at every opportunity consult with the Client to ensure the Services does take place, as soon as reasonably possible. The Contractor at its discretion shall be entitled to charge a reasonable fee for re-supply of the Services at a later stage.
6.2. Any delivery costs associated with the supply of Services shall be either included or in addition to the Price and as such will be stated on the invoice issued to the Client by the Contractor. Additional travel charges may apply where the Services are to be provided outside of a 25km radius of the Contractor’s base.
6.3. Delivery dates for the supply of the Services will only be an estimate, as delays may occur beyond the Contractor’s control i.e., Third Party Contractors, Force Majeure, etc. (including Government imposed lockdowns effecting the Contractor’s suppliers and employees, and all such people are required to, self-isolate). The Contractor will not be liable for any loss or damage incurred by the Client because of the Services being late, however, the Contractor will at every opportunity communicate with the Client to ensure the commencement of the Services does take place, as soon as reasonably possible.
7. WORKSITE ACCESS
7.1. The Client shall, prior to commencement of the Services:
(a) Make sure the Site access is always available and free from any obstructions or barriers to enable the Contractor to deliver any Goods or commence the Services as agreed. Heavy equipment (including trucks or trailers) may be necessary to make Delivery, therefore the Site needs to be able to sustain the weight of such equipment and/or vehicles. The Contractor does not accept any liability for loss or damage caused to the Site, during access, except if proven to be, due to the carelessness or inattention of the Contractor; and
(b) Make certain the Contractor has easy access to water, electrical power supply and toilets facility, as required; and
(c) Upon request from the Contractor, the Client agrees to provide a safe and protected storage space on the Site for any Goods and/or the Contractor’s equipment and tools. The Client accepts responsibility if any of the stored items are destroyed, stolen and/or damaged by the likes of vandals and agrees to meet the cost of replacement or repair, regardless should any insurance claim be declined; and
(d) Obtaining any permits, consents, or approvals applicable to the Services (at the Client’s expense), unless otherwise agreed between the two parties; and
(e) Ensure that any Client supplied Goods are fit for purpose and their intended use. If in the Contractor’s opinion, it believes that the Goods supplied are non-conforming products which will not meet New Zealand regulations (Building Code), the Contractor shall be entitled, to reject such Goods and/or halt the Services, without prejudice, until the appropriate conforming products are obtained. All costs associated with a change to the plans or specifications will be invoiced in accordance with clause 5.
(f) Clearly establish the property boundaries (including, if required, access permission from neighboring properties (“the neighbours”) or if the Client is a tenant on the land where the Services are to be conducted, permission from the owner (“landlord” or “property manager”) must be obtained, prior to commencement of the Services); and
(g) For the sake of health and safety on the Site, the Client agrees:
(i) To remove any items or personal effects that may obstruct or delay the Contractor in completing the Services in the timeframe agreed; and
(ii) Confirm the Site location is safe and stable (including but not limited to, any buildings or foundations, or if equipment for which the Goods are to be mounted or installed is secure). The Contractor reserves the right to halt the Services and seek and EOT as per clause 7.2 without penalty, if the Contractor believes for any reason, the Site is not safe; and
(h) Advise all underground or hidden services, if the Client is unsure of the locations of all utility and hidden services in or around the Site area, the Client agrees to engage a third-party contractor to mark the exact locations of any underground pipes or cabling including plumbing, gas or electrical and any other services known to be on the property. The Contractor will always use all due care to avoid damaging any such services.
7.2. Extension Of Time “EOT” – the Contractor may at any time, at his/her discretion, seek an extension of time, to put back the commencement date and/or extend the Services period for completion, by giving the Client notice, (such written notice shall include the reasons and the requested length of said extension) which the grounds of extension are based upon because of:
(a) Any variations as per clause 5;
(b) Any delay (including third-party suppliers) in the supply or manufacture of Goods required for the Services;
(c) Suspension of Services if the Construction Contract Act 2002 applies;
(d) Inclement weather and the consequences of the weather to the Site access and safety and/or the ability to work; or
(e) A Force Majeure event as per clause 20 (but only for the period that the force majeure event affects the Services); and
(f) Discovery of any fossils, relics, objects, or any other environmental issues, then the Site will be subject to shut down until the Contractor has been instructed by the Client or governing authority to recommence the Services (if applicable), further costs may apply because of any such delays, the Client will be responsible to meet such costs, subject to a variation claim; and
(g) Delays by any local or other authority in granting any necessary consent or approval; and
(h) Any act, default, delay, or omission on the part of the Client in providing instructions, making payment, or doing anything necessary (including but not limited to, selecting items for the Services or the Site being ready for commencement of the Services and has suitably notified the Contractor) to allow the Services to proceed; and
(i) Anything outside the Contractor’ reasonable control.
7.3. The Client agrees to indemnify the Contractor in respect of any liability claims, loss or damage, costs and fines as a result of the foundations or property being unable to accommodate the installation or damage to Services not precisely located as per clauses 7.1(g)(ii) and 7.1(h).
7.4. Nothing in this Contract shall have the effect of limiting or preventing the Contractor from claiming more than one extension of time for a delay specified in clause 7.2.
7.5. Site inductions (“Site Inductions”) are to be carried out, in accordance with New Zealand’s Health and Safety Laws, prior to the commencement of the Services on the Site, regardless of whom is in possession of the Site.
7.6. Unless otherwise agreed, where the Client requires an employee or sub-contractor of the Contractor to undertake a Site Induction, during or outside normal working hours, then the Client accepts the liability for additional costs (charges based on the Contractor’s standard hourly labour rate (and/or overtime, if applicable)) for the time involved for the Site Induction that the Contractor or the Contractor’s representative must undertake to complete the Site Induction.
8. RISK TO GOODS
8.1. Ownership of the Goods which are the subject of this Contract shall not pass to the Client until they are fully paid for, but the risk in the Goods shall be borne by the Client from the date of dispatch from the Contractor’s premises or designated warehouse (if applicable).
8.2. The Contractor is entitled to receive all the insurance proceeds payable for the Goods (uninstalled) should any Goods be damaged or destroyed after delivery has happened if title to the Goods has not been passed to the Client. Although the preparation of these terms and conditions is done so by the Contractor, the Contractor shall still be entitled, without prejudice to any other of its rights or remedies under these terms and conditions to use this Contract (including invoices, consignment notes or delivery dockets) with the Client, as prima facie evidence, if an insurance claim is made and thereby no further investigations ought not to be necessary.
8.3. If the Contractor is instructed to leave Goods outside the Contractor’s premises for the Client’s collection or to deliver the Goods to an unmanned Site, then such Goods shall be left at the Client’s sole risk.
8.4. The Client Accepts and Agrees that:
(a) All dimensions, plans, and specifications pertaining to the Services shall be in line with New Zealand Standards (“NZS”) customary industry tolerances;
(b) The Contractor shall be entitled to reply on the accuracy of any plans, specifications or other information provided by the Client;
(c) If any plans, designs or specifications or any other information supplied by the Client pertaining to the Services that the Contractor should reasonably be expected to rely on, as being compliant with NZS but are subsequently found to be inaccurate or invalid because it is proven that the Client was in breach of clause 8.4(a) unbeknown to the Contractor, then the Contractor shall not be liable for any losses, damages, or costs (howsoever arising) that the Client may suffer; or
(d) Other than a Force Majeure event, if the Services are delayed for more than a two (2) week period by the Client, once a job has commenced, the Client agrees to settle all monies owed to the Contractor for stages completed and/or Goods purchased up to the date in which the delay started. The Contractor shall have the right to requote the balance of Services to be performed, if the cost to the Contractor in performing such Services increases due to any increase, or the introduction by a statutory or other authority of a tax, duty, charge, levy, or legislation then the amount of the increase is to be treated as a variation and clause 5 shall apply;
(e) Goods may present variations in shade, colour, markings, and indentations, surface texture, and finish, all of which may fade or discolour over a period time. Batches of products from suppliers are known to vary, which is beyond the Contractor’s control, however, matching batch supplies and/or where the Contractor uses new Goods with existing items, the Contractor makes every effort to reduce any variations wherever possible. The Contractor shall not accept liability, in any way whatsoever where such variations occur;
(f) Goods can mark or stain if exposed to certain substances or be damaged or disfigured by impact or scratching;
(g) All Goods supplied by the Contractor with product maintenance instructions are important to follow, as failure to comply with such maintenance instructions may result in any applicable warranty becoming void.
8.5. The Contractor will not accept responsibility for any defect that may occur due to:
(a) Failure by the Client to follow the Contractor’s recommendations:
(i) If the Client has chosen to store the Goods off site for a period that results in any form of deterioration due to the Client’s action or inaction to effect installation; or
(i) If other tradesmen are contracted the Site and cause any damage to the Contractor’s Services during or after completion. If the Client requests the Contractor to remedy any such damage, additional charges will apply; and
(b) Any loss or damage caused in accessing the work area affects the provision of the Services, unless any such loss or damage is attributed to the negligence of the Contractor.
(c) If the Contractor performs any temporary repairs:
(i) The Contractor offers no guarantee against the reoccurrence of the initial fault, or any further damage caused; and
(ii) Blockages found in existing drains due to the existence of plant root growth which is normally a sign there are damaged pipes that cannot be properly fixed by simply removing the root growth or blockage. If the Client chooses not to instruct the Contractor to carry out the Services for the repair or replacement of damaged pipes or drains, then the Contractor gives no guarantee that the same or similar problems will not recur. The Client will be advised immediately of such an event together with an estimate; and
(iii) If the Contractor’s needs to use specialised equipment to establish the exact section of damage, the Client agrees to confirm in writing that should such equipment becomes lodged or is damaged while in the Client pipes or drains, the Client agrees to indemnify the Contractor the costs of removal of the equipment including any necessary additional excavation and restoration work; and
(iv) The Client will be advised immediately of the fault, with an estimate for the full repair required; and
(v) The Contractor only accepts responsibility for the Goods that it replaces, no liability is accepted in respect of any previous goods or services supplied by any other third party that subsequently fail after the Contractor has conducted its temporary repair as requested and it is later discovered that the previous goods or services were the actual source of the failure; and
(d) Any equipment partly or completely installed on the Site is the Client’s responsibility to insure, against theft or damage; and
(e) Under no circumstances, will the Contractor handle removal of asbestos product. If asbestos (or any other hazardous material) is discovered on the Site:
(i) The Contractor shall suspend the Services or seek an extension of time as per clause 7.2; and
(ii) The Client shall be fully responsible for the resolution of any resulting problems; and
(iii) Any additional cost incurred by the Contractor shall be added to the Price under clause 5.
9. DEFECTIVE GOODS OR SERVICES & RETURNS
9.1. The Client agrees to examine the Goods (Services on completion) on delivery and shall satisfy itself that they conform with the quotation, description, purchase order or any other document applicable to this Contract, that the Goods are of merchantable quality, fit for purpose and in a useable condition.
9.2. If the Client discovers a defect in the quality, or a shortage in the quantity of the Goods, or a failure to comply with the Contractor’s quote and these terms and conditions, they must immediately notify the Contractor of that defect. If no notice is received by the Contractor within 5 Business Days from the time of delivery, then the Goods and Services shall be assumed to be accepted and clear from any defect or fault.
9.3. Notwithstanding clause 9.2 as a Master Plumbers member, all Services performed by the Contractor is covered by a Master Plumbers Guarantee, full details can be found at: www.masterplumbers.org.nz/master-guarantee/ which offers a protection cover for a period of 12 months from the date of the last invoice issued to the Client against: a) advance payments (if work is not completed by the Contractor) or b) substandard workmanship. All potential claims (if any) must be submitted within this 12-month period to be assessed and resolved.
9.4. Returns for non-defective Goods for credit are only accepted at the Contractor’s discretion, which is subject to a restocking and handling fee of 25% of the returned Goods, plus any freight, unless otherwise agreed.
9.5. Conditions apply to all Goods for return (if any), such as:
(a) The Client carried out the Contractor’s requests detailed in clauses 9.1 and 9.2;
(b) The Contractor has confirmed in writing (email or text message), that the returned Goods are accepted; and
(c) The cost of returned Goods shall be borne by the Client and must be returned within 5 Business Days of the Delivery date as stated in clause 9.2, or any other date as agreed with the Contractor; and
(d) Returned Goods are still in good condition (as reasonable possible) together with all the original wrapping, catalogues, and maintenance instructions together with a copy of the original invoice.
10. WARRANTIES
10.1. Only a manufacturer’s warranty will apply (if any) when the Contractor has not actually manufactured the Goods. The Contractor will not be liable in any way or be required to meet any obligation given under a manufacturer’s warranty. In the event of a claim, the Client must deal directly with the manufacturer, unless it is agreed between both parties that the Contractor shall be the party to act on behalf of the Client, in respect of any manufacturer’s warranty claim.
10.2. Any expressed warranty offered by the Contractor regarding any Goods, or the Services will be clearly detailed in the Warranty Document, which will be provided upon the completion of the Services.
11. INSURANCE
11.1. The Contractor will have in place:
(a) Public Liability Insurance: -with appropriate cover for loss or damage to any other property, or injury or death or illness which arises from carrying out the Contractor’s Services of not less than $5 million. It is the Client’s responsibility to ensure that they are similarly insured; and
(b) Contract Services Insurance – where Services are to an existing structure (including, but not limited to, renovations, extensions, relevelling etc.), the Client is responsible to arrange said insurance, prior to the Contractor undertaking the Services, however, for Contracts over the threshold of $30,000 under the Building Amendment Act 2013, these will require the comprehensive Building Contract, which is outside the scope of these terms and conditions.
12. TITLE
12.1. Title in any Goods (including documentation, if applicable) supplied by the Contractor in the provision of the Services does not pass to the Client until payment for the Goods and Services (together with any additional interest or charges as set out in these terms and conditions) have been made in full by way of cleared funds and the Client’s obligations have been fulfilled, and until then the Contractor’s ownership or rights in respect of the Goods and Services shall continue.
12.2. Until such time as title passes to the Client:
(a) The Client holds the Goods on trust for the Contractor as “bailee” and must return any uninstalled Goods to the Contractor on request and irrevocably authorises the Contractor to enter any property where the Contractor believes the uninstalled Goods are kept and recover possession, without the Contractor being liable for any loss or damage caused to the Client; and
(a) If possession of the Goods passes to another third party by way of sale or the Client does anything to the Goods (including where Goods are converted into other products) which changes its form, then the Client as per clause 12.1 must hold such funds from this transaction on trust for the Contractor, and make payment immediately upon demand; and
(b) At no time shall the Client be entitled to use the Goods as a form of security (including but not limited to, executing a charge or lien over the Goods when ownership of the Goods has not taken place).
13. PERSONAL PROPERTY SECURITIES ACT 1999 (“PPSA”)
13.1. The Client will make available all relevant paperwork and do such acts and execute such further documents as in the opinion of the Contractor may be necessary or desirable to enable the Contractor to perfect under the PPSA the security interest created by these terms and conditions.
13.2. The Contractor may do all things which it thinks desirable to remedy any default by the Client or otherwise protect the security interest created by these terms and conditions.
13.3. The Client irrevocably appoints the Contractor to be the Client’s attorney to do anything which the Contractor agrees to do under these terms and conditions and anything which the attorney thinks desirable to protect the Contractor’s interests under these terms and conditions and the Client ratifies anything done by an attorney under this clause. The Client agrees sections 114(1)(a), 133 and 134 of the PPSA shall not apply to these terms or the security under these terms and conditions.
13.4. The Client agrees and waives their right to be given a copy of the verification statement confirming registration of a financing statement or a financing change statement relating to the security interest created by these terms and conditions.
13.5. The Client agrees that none of the Client’s rights as debtor under sections 116, 119, 120(2), 121, 125, 126, 127, 129,131 and 132 of the PPSA shall apply to these terms and conditions.
13.6. The Client also agrees that where the Client has rights in addition to those in Part 9 of the PPSA, those rights will continue to apply.
13.7. The Client must not change the Client’s name without first notifying the Contractor of the new name, not less than 7 Business Days before the change takes effect.
13.8. The Client must not allow or permit the creation of a lien over any of the Goods.
14. SECURITY AND CHARGE
14.1. The Client acknowledges and accepts that by accepting these terms and conditions, it charges all its rights, title, and interest (whether joint or several) in any land, realty, or other assets capable of being charged (including, but not limited to, the payment of any money), owned by the Client either now or in the future, to secure the performance by the Client of its obligations under these terms and conditions.
14.2. The Client indemnifies the Contractor from and against all the Contractor’s costs and disbursements including legal costs on a solicitor’s and own client basis incurred in exercising the Contractor’s rights under this clause.
14.3. The Client irrevocably appoints the Contractor and each director of the Contractor as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 14 including, but not limited to, signing any document on the Client’s behalf.
15. INTELLECTUAL PROPERTY
15.1. All rights, titles, and interests in and to all Intellectual Property created for the Client by the Contractor shall become part of the Contractor’s Intellectual Property that the Contractor is entitled to retain. Use of such Intellectual Property created shall only be for the Client’s specific project, use on or in, any other project or matter is prohibited, unless the Contractor grants permission in writing.
15.2. The Client agrees to indemnify the Contractor against any claims by third parties for any breach of Intellectual Property caused by the Client. Furthermore, where the Client has supplied any Intellectual Property to the Contractor, the Client warrants that the supply of such Intellectual Property does not breach any patent, trademark, design, or copyright.
15.3. The parties agree that any Intellectual Property created for them by the Contractor may be used by the Contractor for his/her own benefit, such as, in the use of promoting their business or advertising thereof, or for entry use, on any worldwide industry platform.
16. DEFAULT
16.1. In any event, the Contractor reserves the right to charge the Client interest in respect of the late payment of any sums due under this Contract, at the rate being two percent (2%) per calendar month (interest shall accrue daily and will compound monthly), from the due date until receipt of payment, and prior, to any judgement being awarded by a court of law.
16.2. For the sake of clarity, the Contractor has the right to suspend or bring the whole Contract to an end, or parts thereof, or any other contract or contracts with the Client, in addition to its other remedies, upon the happening of any of the following events of default:
(a) Where monies owed by the Client to the Contractor remain outstanding; or
(b) If the Client breaches, or fails to comply or repudiates, any obligation under this Contract or any other subsequent contract with the Contractor; or
(c) The Client is intimating that they will not pay any sum by the due date; or
(d) Any Goods seized by any other creditor of the Client or any other creditor intimate that it intends to seize the Goods; or
(e) Any Goods in the possession of the Client are materially damaged while any sum due from the Client to the Contractor remains unpaid; or
(f) The Client dies, becomes insolvent or subject to bankruptcy laws, calls a meeting of creditors, or if a company – enters into an arrangement with creditors or makes an assignment/compromise for the benefit of its creditors, or receivers, managers, liquidators (provisional or otherwise), administrators or any similar party is appointed in respect of the Client (or any asset of the Client), has any winding up petition presented against, or ceases to carry on business; or
(g) If the Client ceases or threatens to cease carrying on business; or
(h) If the ownership or effective control of the Client is transferred, or the nature of the Client’s business is materially altered.
16.3. Whether this Contract is ended by mutual agreement or due to any breach by the Client, all monies owed by the Client (including any interest or costs due) to the Contractor shall become immediately due and payable. Without limiting the effect of this clause 16.3 it shall survive the end of this Contract, and any other terms and conditions which by their nature are intended to survive.
16.4. Where any event of default occurs, the Contractor may appoint a receiver in respect of all Goods (including their proceeds) supplied to the Client and any such receiver may take possession of the Goods and sell them and otherwise exercise all rights and powers conferred on a receiver by law.
16.5. Notwithstanding clause 16.1, it is further agreed that if the Client owes the Contractor any money, the Client agrees to reimburse the Contractor all costs and expenses suffered by the Contractor in their attempt to recover all overdue monies owed to the Contractor, (which may include charges incurred by the Contractor from their banking institute for dishonours or chargebacks, legal costs on a solicitor and own client basis, inhouse admin fees or any fees charged during the debt recovery process, if a debt is passed to a recognised Debt Collection Recovery Agency).
17. CANCELLATION
17.1. By the Contractor:
(a) At any time before the Services are carried out, upon providing the Client forty-eight (48) hours written notice; or
(b) Upon the required notice being given under section 24A (relating to suspension or terminations) of the Construction Contracts Act 2002 (if applicable); and
(c) The Contractor agrees to refund the Client any funds paid by the Client in respect of the Goods or Services, less any amounts owing to the Contractor for any Goods purchased on the Client’s behalf where credits or refunds cannot be obtained from the Contractor’s third- party suppliers; and
(d) The Contractor will not be liable to the Client for any loss or damage the Client suffers because the Contractor has relied on its rights covered in this clause.
17.2. By the Client:
(a) Prior to commencement of the Services or delivery of the Goods, by giving no less than forty-eight (48) hours’ written notice, the Client remains liable for any costs incurred by the Contractor (including, but not limited to, loss of profit) up to the time of cancellation; or
(b) Where the Client cancels the Services that have already commenced:
(i) The initial notification may be by telephone or text but must be confirmed in writing or email within 7 Business Days; and
(ii) The Client shall be invoiced for all work completed up until the date of cancellation. Any deposit paid prior to the commencement of the Services will be forfeited in lieu of monies due, however, the Client remains liable for any monies due over and above any deposit paid; or
(iii) At the Contractor’s discretion, where failure of clause 17.2(b)(i) occurs, the Client may be required to pay the full quoted Price.
(c) Cancellation is not accepted by the Contractor if the new Goods have been used or is a custom-made item or if the Client later changes their mind, unless the cancellation is subject to the Consumer Guarantees Act 1993.
18. PRIVACY POLICY
18.1. In accordance with the Privacy Act 2020 and any statutory requirements if related to the European Economic Area (“EEA”), under the EU Data Privacy Laws (including the General Data Protection Regulation “GDPR”) (collectively, “EU Data Privacy Laws”), if applicable, full disclosure will be made by the Contractor to the Client that Personal Information will be collected, handled, used, and stored about the Client during the business relationship and thereby, the Client grants the Contractor permission to proceed with any inquiries necessary with a third party connected to the Services which the Client will provide for the following purposes:
(a) Assessing the Client’s credit risk (if any);
(b) Administering the Client orders;
(c) Receiving information from one or more credit reference agencies, relating the credit record and repayment history of the Client;
(d) Disclosing credit-related information to and using the credit services of one or more credit reference agencies, on a continuing basis at any time and entirely at its discretion concerning the Client’s creditworthiness.
18.2. For the avoidance of doubt, all authorities given above are continuing authorities, to apply throughout the duration of the term of the Contractor and Client’s trading relationship.
18.3. The Client, if an individual, has a right to access Personal Information about the Client held by the Contractor and may request correction of the information.
18.4. The Contractor agrees to destroy Personal Information upon the Client’s request in writing (or email) or if the Personal Information is no longer required unless it is required to fulfill the obligations of this Contract or is required to be maintained and/or stored in accordance with the law.
18.5. If any Client believes their privacy has been breached in any way, then a privacy complaint can be made to the Contractor’s Privacy Officer via email at: accounts@summitplumbing.co.nz or post to: The Privacy Officer, Summit Plumbing Limited, 53d Hartford Avenue, Papamoa Beach, PAPAMOA 3118. The Contractor will respond to that complaint within 7 days of its receipt, should more time be needed to investigate the complaint then the Contractor will undertake to decide on a resolution as to the complaint within 20 days of the original date of receipt. If the Client is not satisfied with the resolution provided by the Contractor, the Client can make a complaint to the Privacy Commissioner at www.privacy.org.nz.
18.6. For the purposes of this clause 18, Personal Information has the meaning given to it in the Privacy Act 2020.
19. ASSIGNMENT
19.1. Neither party shall assign, sub-license or otherwise transfer this Contract or any part of it to any other person, without first obtaining written consent (hardcopy or email) of the other party. Such consent shall not be unreasonably withheld or delayed.
19.2. Unless specifically stated otherwise, in any consent to an assignment (as covered in clause 19.1), no assignment shall release or discharge the assignor from any liability or obligation under this Contract.
19.3. Furthermore, it is agreed between the parties that the Client cannot give any instructions or redirect the performance of the Services of any of the Contractor’s subcontractors or third-party suppliers that are engaged to carry out any part of the Services, without firstly obtaining written consent from the Contractor.
20. FORCE MAJEURE
20.1. Neither party shall be liable if a Force Majeure event occurs:
(a) The obligations of a party under this Contract will be suspended to the extent that it is wholly or partially precluded from complying with its obligations under this Contract by Force Majeure; and
(b) A party affected by Force Majeure must notify the other party as soon as practicable of the Force Majeure and the extent to which that party is unable to comply with its obligations; and
(c) If a failure or delay in performance exceeds 60 Business Days, either party may immediately terminate this Contract by written notice to the other party.
20.2. Nothing in clause 20.1 shall excuse payment of any amount owing due or which becomes due under the terms of this Contract.
21. MISCELLANEOUS
21.1. Dispute:
(a) Any dispute or difference in connection with, or arising out of, this Contract shall be dealt with by the concerning party giving the other party written notice, clearly identifying, and providing full details of the dispute. Failure to resolve the dispute within 10 Business Days (or whatsoever timeframe agreed) by way of either formal discussions and/or mediation will result in the dispute now being referred to a sole arbitrator and the provisions of the Arbitration Act shall apply or where the Construction Contract Act 2002 “CCA” applies, the matter shall be dealt by initiating adjudication and appointing an adjudicator as per Part 3 of the CCA; and
(b) The Client agrees not to contract any third party to replace the Contractor as their provider of the Services to be supplied under this Contract until the dispute resolution process in clause 21.1(a) has been completed, and then only if arbitration has found against the Contractor in its determination, and the Contractor is unable or unwilling to resolve, rectify or correct the issues that have led the arbitrator to find against the Contractor.
21.2. Jurisdiction:
(a) If any term or obligation of this Contract is at any time held by any jurisdiction to be negated, invalid or unenforceable, then it shall be treated as changed or reduced, only to the extent minimally necessary to bring it within the laws of that jurisdiction and to prevent it from being void and it shall be binding in that changed or reduced form. Subject to that, each provision shall be interpreted as severable and shall not in any way affect any other provision covered in these terms and conditions; and
(b) The legality, construction and performance of this Contract shall be governed by the laws of New Zealand. The Client agrees that any dispute arising from the Contract between the two parties that cannot reasonably be resolved by mediation shall then be litigated only, by the jurisdiction of the Tauranga Courts of New Zealand.
21.3. Legislation:
(a) If the Client is acquiring Services for the purposes of a trade or business, the Client acknowledges that the provisions of section 43 of the Consumer Guarantees Act 1993 (“CGA”) and section 5D of the Fair Trading Act 1986 (“FTA”) do not apply to the supply of the Services by the Contractor to the Client, nor will the provisions of the FTA apply to either parties conduct or representations if unintentional: section 9 (misleading conduct), section 12A (unsubstantiated representations) or section 13 (false or misleading representations); and
(b) If the Client is acquiring the Services in the capacity as a “consumer” as defined in the Consumer Guarantees Act 1993 and the Client is not in trade, nothing in the Contract will exclude or limit the Client’s rights or remedies under the Act; and
(c) Both the Contractor and the Client agreed to comply with all governing laws (including the provisions of all statutes, regulations, and bylaws of Government, local and other public authorities) of New Zealand applicable to the Services and agree that nothing in this Contract is intended to have the effect of contracting out of any applicable provisions of the Building Act 2004, Construction Contracts Act 2002, Plumbers, Gasfitters, and Drainlayers Act 2006, Gas (Safety And Measurement) Regulations 2010, Electricity Act 1992 and Electricity (Safety) Regulations 2010, the Health and Safety at Work Act 2015 (“the HSW Act”), the Resource Management Act 1991 (relating to the use, storage and/or disposal of any surplus Goods and/or waste from the worksite), the Fair Trading Act 1986 and the Contract and Commercial Law Act 2017 (including any substitute to those Acts or re-enactment thereof or order-in-council and other instrument from time to time issued or made under, that legislation), except to the extent permitted by those Acts where applicable; and
(d) If the performance of the Services to be carried out by the Contractor is subject to any form of certificate of compliance, pertaining to plumbing and/or gas, will be provided by the Contractor at the time of completion. The Client agrees to indemnify the Contractor against any costs incurred in respect of any certification required by law; and
21.4. Notwithstanding clause 21.3, all work carried out by the Contractor shall be checked, prior to sign-off:
(a) To ensure that it is safe and that everything is secure; and
(b) Certify that all pipes connected to or used during the Services for the purpose of drinking water for human consumption to pass through are compliant with Australian/New Zealand Standards (AS/NZ4020).
21.5. If the Client is ever in breach of clause 21.3, then the Client accepts and agrees to indemnify the Contractor against all claims, liability, losses, or costs imposed or incurred by the Contractor, because of such a breach.
21.6. Limitation of Liability: THE CONTRACTOR WILL NOT BE LIABLE FOR ANY LOSS CAUSED BY A FAILURE BY THE CLIENT TO COMPLY WITH THE CLIENT’S OBLIGATIONS UNDER THIS CONTRACT. FURTHERMORE, THE CONTRACTOR’S TOTAL LIABILITY WILL NOT, UNDER ANY CIRCUMSTANCES, EXCEED THE PRICE OF THE SERVICES PERFORMED, PURSUANT TO THIS CONTRACT.
21.7. Notices: Where a notice is required to be served under this Contract by either party, it must be issued in writing and delivered either by email, registered post (to the recipient’s address for service as provided under this Contract) or given personally to the concerned other party. Any notice that is served subject to this clause 21.7 shall be deemed to have been served, unless stated otherwise, at the time when the notice would have typically been delivered.
21.8. Terms & Conditions Changes: Notwithstanding clause 1.3, the Contractor reserves the right from time to time to amend their terms and conditions, but for disclosure purposes any amendments shall always be provided in writing to the Client and/or notified by email that the updated terms and conditions are posted and ready for viewing on the Contractor’s website. The amended terms and conditions take effect on any new contract from when the Client accepts the updated terms and conditions and/or from when the Client asks the Contractor to supply additional Goods and/or Services.
22. DEFINITIONS AND INTERPRETATION
22.1. In this Contract, unless the context otherwise requires capitalised terms have the meaning set out below:
(a) “Business Days” means a day on which banks are open for business in New Zealand other than a Saturday, Sunday, or public holiday.
(b) “Confidential Information” means any information:
(i) Relating to this Contract;
(ii) Relating to a quotation, order, or proposal or its contents;
(iii) Relating to a Client of the Contractor
(iv) Disclosed by either party to the other party on the express basis that such information is confidential; or
(v) Which might reasonably be expected by either party to be confidential in nature.
Provided that, where information relates exclusively to one party, nothing in this Contract will require that party to maintain confidentiality in respect of that information.
(c) “Client” means the person/s, entities (including but not limited to, partnerships and/or a trust and where applicable shall include the Client’s executors, administrators, successors and permitted assigns) or any person acting on behalf of and with the authority of the Client requesting the Contractor to provide the Services as specified in any proposal, quotation, order, invoice, or other documentation.
(d) “Contract” means this Contract, inclusive of its terms and conditions contained herein, its schedules and annexures or any quotation, proposal, invoice, or document that shall form part thereof and/or is deemed to be supplementary to this Contract.
(e) “Contractor” means SUMMIT PLUMBING LIMITED, its successors, and assigns.
(f) “Force Majeure” means an event outside the reasonable control of either party, including an act of God, earthquake, adverse weather conditions, flood, storm, fire, explosion, war, rebellion, terrorism, strike, lock-out, industrial action national or global epidemics or pandemic and/or the implementation of regulation, directions, rules or measures being enforced by Governments or embargo, including but not limited to, any Government quarantine restrictions for Goods or individuals.
(g) “Goods” means Goods of any kind that the Contractor provides to the Client as specified in any Contract, quotation, proposal, order, or any other documentation.
(h) “GST” means Goods and Services Tax, as defined within the Goods and Services Tax Act 1985.
(i) “Intellectual Property” means and includes (whether invisible, electronic or any other form) all brands, and symbols, names and images used in commerce, goodwill, logos, formulae, techniques, know-how, specifications, designs, drawings, copyright, manufacturing processes, patents, and trademarks (if any) whether registered or not, software (and source and object code), business strategies and contracts, confidential business information including market and marketing strategies.
(j) “Personal Information” means information about an identifiable individual by ways of their name, address, D.O.B., occupation, driver’s license details, electronic contact type details, such as, email, IP Address, Facebook, or Twitter, or next of kin and any other contact information (if applicable) and were deemed relevant shall include any previous credit applications or credit history details. By the nature of such information, it shall always be considered Confidential Information.
(k) “PPSA” means Personal Property Securities Act 1999.
(l) “Price” means the Price due under this Contract for the supply of Goods and/or Services as agreed between the Contractor and the Client and (if applicable) shall include any GST payable.
(m) “Services” means all Services (including any documentation, related Goods, advice, consultancy, or recommendations with residential and commercial plumbing and gas fitting Services for new builds and/or renovations relating to, drainlaying, drain unblocking, CCTV drain inspections, hot water cylinders, Gas hot water and associated incidental items) supplied by the Contractor to the Client, and are as described on the invoices, quotation, authorisation form, equipment hire authority, or any other forms as provided by the Contractor to the Client.
(n) “Site” means the land (or that part of the land) that the Contractor reasonably needs to occupy to carry out and practically complete the Services required under this Contract.
22.2. In this Contract, unless the context requires otherwise:
(a) Headings: Headings shall be ignored in construing this document;
(b) Joint obligations: An obligation incurred in favours of two or more parties shall be enforceable by them jointly or severally;
(c) Parts of Contract: References to this Contract including its clauses, schedules, and annexures;
(d) Plurals: This singular shall include the plural and vice versa and word importing one gender shall include every gender and a reference to a person shall include any other legal entity of whatsoever kind and vice versa;
(e) Price: A reference to dollars or $ is to an amount in New Zealand currency;
(f) Statutory Requirements: A reference to a statute, ordinance code or other law includes regulations and other statutory instruments under it and consolidations, amendments, re-enactments, or replacements of any of them (whether of the same or any other legislative authority having jurisdiction.
22.3. Neutral Interpretation - nothing in this Contract is to be interpreted against a party solely on the ground that that party put forward this Contract or a relevant part of it.