Terms & Conditions of work

1.Definitions

1.1.“The Supplier”, “we”, “our” and “us” means Four Four Five Limited, its successors and assigns or any person acting on behalf of and with the authority of Four Four Five Limited.

1.2.“The Client”, “you” and “your” means the person/s ordering the Works as specified in any invoice, document or order, and if there is more than one Client is a reference to each Client jointly and severally.

1.3.“The Party” or “the Parties” in this Agreement shall mean the Client and the Supplier, and them together as the case may be.

1.4.“Commencement Date” means the date that this Agreement comes into force, as specified in our Order Form.

1.5.“Works” means all works, services and labour provided by us to you at your request from time to time (where the context so permits the terms ‘Works’ or ‘Materials’ shall be interchangeable for the other).

1.6.“Materials” means all materials and products provided by us to you at your request from time to time (where the context so permits the terms ‘Works’ or ‘Materials’ shall be interchangeable for the other).

1.7.“Price” means the Price payable for the Works as agreed between the parties in accordance with clause 5 below.

1.8.“Variation” means Works additional to the Scope of Work as requested by you or your duly authorised representative from time to time in writing.

1.9.“Scope of Work” means the schedule of Works and/or Materials requested by you and agreed to by us, as detailed in our Order Form to you.

1.10.“Order Form” means the front section of this document that details the Scope of Works and Price for the same.

1.11.“Contract Works Insurance” means insurance that will cover the cost to replace, repair or redo the Works and Materials during any period that we are providing the Works to you until such time as the Works are completed.

1.12.“Worksite” means the location where the Works and Materials are provided by us to you, as nominated by you.

2.Background

2.1.The Client is the registered proprietor of the Property.

2.2.The Supplier in the business of property remediation and/or renovation.

3.Interpretation

3.1.This Agreement is governed by the laws of New Zealand and the parties submit to the non-exclusive jurisdiction of the New Zealand courts.

3.2.In the interpretation of this Agreement:

• 3.2.1.References to legislation or provisions of legislation include changes or re-enactments of the legislation and statutory instruments and regulations issued under the legislation;
• 3.2.2.Words denoting the singular include the plural and vice versa, words denoting individuals or persons include bodies corporate and vice versa, references to documents or agreements also mean those documents or agreements as changed, novated or replaced, and words denoting one gender include all genders;
• 3.2.3.Grammatical forms of defined words or phrases have corresponding meanings;
• 3.2.4.Parties must perform their obligations on the dates and times fixed by reference to Auckland, New Zealand;
• 3.2.5.Reference to an amount of money is a reference to the amount in the lawful currency of New Zealand;
• 3.2.6.If the day on or by which anything is to be done is a Saturday, a Sunday or a public holiday in the place in which it is to be done, then it must be done on the next business day;
• 3.2.7.References to a party are intended to bind their executors, administrators and permitted transferees; and
• 3.2.8.Obligations under this Agreement affecting more than one party bind them jointly and each of them severally.

4.Commencement

4.1.Our engagement commences on the Commencement Date and continues until terminated in accordance with this Agreement.

5.Price and Payment

5.1.At our sole discretion the Price shall be either:

• 5.1.1.as indicated on invoices provided by us to you in respect of Works performed or Materials supplied; or
• 5.1.2.the Price on our Order Form (subject to clause 5.2) which shall be binding upon us provided that you shall accept our Order Form in writing within twenty-eight (28) days of the date of the Order Form.

5.2.We reserve the right to change the Price:

• 5.2.1.if a Variation to the Materials which are to be supplied is requested by you; or
• 5.2.2.if a Variation to the Works originally scheduled (including any applicable plans or specifications) is requested by you; or
• 5.2.3.where additional Works are required due to the discovery of hidden or unidentifiable difficulties (including, but not limited to, poor weather conditions, limitations to accessing the site, obscured building defects, safety considerations, prerequisite work by any third party not being completed, error in design, or hidden pipes and wiring) which are only discovered on commencement of or during the Works; or
• 5.2.4.in the event of increases to us in the cost of labour or Materials, which are beyond our reasonable control.

5.3.Unless otherwise stated the Price does not include GST. In addition to the Price you must pay to us an amount equal to any GST we must pay for any provision of Works by us under this or any other agreement. You must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as you pay the Price. In addition you must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.

5.4.At our sole discretion, a deposit may be required. Any deposit taken shall be applied against our first invoice(s).

5.5.Time for payment of the Price being of the essence, the Price will be payable by you on the date/s determined by us at our sole discretion, which may be:

• 5.5.1.payment in full within 7 days of the date of our invoice to you; or
• 5.5.2.for approved clients, the twentieth of the month following the date of our invoice to you; or
• 5.5.3.in accordance with any other payment terms we have agreed with you in writing.

5.6.Payment must be made in cleared funds by electronic/on-line banking, or by any other method stipulated by us.

6.Client’s Representations and Warranties

6.1.You represent and warrant that:

• 6.1.1.You are the registered proprietor of the Property and have full authority to enter into this Agreement.
• 6.1.2.You irrevocably consent to us conducting:

6.1.3.There are no outstanding building notices or any unforeseen reasons as to why we shouldn’t enter into this Agreement to carry out the works disclosed in our quote. Full disclosure is required.

7.Indemnity

7.1.You indemnify and agree to keep us indemnified against all claims, proceedings, actions, judgments, suits, demands and other proceedings made or brought against us for all damage, loss, cost, expense or liability which but for this indemnity we may suffer or may incur arising directly or indirectly from this Agreement.

8.Retention of Title

8.1.You acknowledge and agree that ownership of the Works shall not pass, until:

• 8.1.1.Payment has been received in full by us and in the case of the Staging, in accordance with clause 10.3; and
• 8.1.2.You have met all other obligations due by you to us in respect of all contracts between us and you.

8.2.Receipt by us of any form of payment other than cleared funds in our bank account, shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised and until then our Ownership or rights in respect of the Works, and this Agreement, shall continue.

8.3.It is further agreed that:

• 8.3.1.Until Ownership of the Materials passes to you in accordance with clause 8.1 that you are only a bailee of the Materials and unless the Materials have become fixtures you must return the Materials to us on request;
• 8.3.2.You hold the benefit of your insurance of the Materials on trust for us and must pay to us the proceeds of any insurance in the event of the Materials being lost, damaged or destroyed;
  8.3.3.The production of these terms and conditions by us shall be sufficient evidence of our rights to receive the insurance proceeds direct from the insurer without the need for any person dealing with us to make further enquiries;
• 8.3.4.You must not sell, dispose, or otherwise part with possession of the Materials other than in the ordinary course of business and for market value. If you sell, dispose or part with possession of the Materials then you must hold the proceeds of any such disposition on trust for us and must pay or deliver the proceeds to us on demand;
• 8.3.5.You should not convert or process the Materials or intermix them with other goods but if you do so then you hold the resulting product on trust for the benefit of us and must sell, dispose of or return the resulting product to us as we so direct;
• 8.3.6.Unless the Materials have become fixtures you irrevocably authorise us to enter any premises where we believe the Materials are kept and recover possession of the Materials;
• 8.3.7.We may recover possession of any Materials in transit whether or not delivery has occurred;
• 8.3.8.You shall not charge or grant an encumbrance over the Materials nor grant nor otherwise give away any interest in the Materials while they remain our property;
• 8.3.9.We may commence proceedings to recover the Price notwithstanding that ownership of the Materials has not passed to you.
• 8.3.10.Any advice, recommendation, information, assistance or service provided by us in relation to Works is given in good faith, is based on our own knowledge and experience and shall be accepted by you without liability on our part, and it shall be your responsibility to confirm the accuracy and reliability of the same in light of the use to which you make or intend to make of the Works.
• 8.3.11.We, our directors, employees and consultants, believe that the information provided to you is correct and that any calculations, estimates, conclusions or recommendations contained in any Order Form, estimate or similar document are reasonably held or made as at the time of our providing the information.
• 8.3.12.No warranty is made as to the accuracy or reliability of any calculation, estimate, conclusion or recommendation or other information supplied by us and, to the maximum extent permitted by law, we disclaim all liability and responsibility for any direct or indirect loss or damage which may be suffered by you through relying on such information.

9.Entire agreement

9.1.This Agreement is the entire agreement and understanding between the parties on everything connected with the subject matter of this Agreement, and supersedes any prior understanding, arrangement, representation or agreements between the parties as to the subject matter contained in this Agreement.

10.Change in Control

10.1.You shall give us not less than fourteen (14) days prior written notice of: any proposed change of ownership or effective control where you are a non-natural person (e.g. a company); and/or any other change in your details, including but not limited to changes in your name, address, contact phone or fax number/s.

10.2.You shall be liable for any loss incurred by us as a result of your failure to comply with this clause 10.

11.Provision of the Works

11.1.Subject to clause 11.2 it is your responsibility to ensure that the Works start as soon as it is reasonably possible.

11.2.The Commencement Date will be put back and/or the Completion Date extended by whatever time is reasonable in the event that we claim an extension of time (by giving you written notice) where completion is delayed by an event beyond our control, including but not limited to inclement weather, strikes or act of God and any failure by you to:

• 11.2.1.make a selection of Materials; or
• 11.2.2.have the Worksite ready for the Works; or
• 11.2.3.notify us that the Worksite is ready.

11.3.We may provide the Works by separate instalments.

11.4.We may provide the Works by sub-contracting specialist tradespeople as and when required in provision of the Works, and in some cases for provision of the entirety of the Works.

11.5.From time to time during the term of this Agreement we may be unable to supply the Works by reason of personnel illness or personnel shortage, in which case:

• 11.5.1.we will use reasonable endeavours to engage alternative personnel or sub-contractors to supply the Works; and
• 11.5.2.subject to our compliance with clause 11.5.1, we will not be in breach of the terms of this Agreement by virtue of any failure to supply the Works arising out of such inability.

11.6.We will ensure that all personnel, including subcontractors, involved in the provision of the Works at the Worksite have:

• 11.6.1.been interviewed by us;
• 11.6.2.supplied proof of identity and satisfactory references to us; and
• 11.6.3.been properly trained in the provision of the Works.

11.7.Any time specified by us for provision of the Works is an estimate only and we will not be liable for any loss or damage incurred by you as a result of any delay.

11.8.We agree that we shall make every endeavour to enable the Works to be provided at the time and place as stipulated by us. In the event that we are unable to provide the Works as agreed solely due to any action or inaction of yours then we shall be entitled to charge a reasonable fee for re-providing the Works at a later time and date.

11.9.All Works will be undertaken in accordance with current standards as approved and stipulated by the appropriate regulatory body, and/or the manufacturer of the Materials.

12.Your Responsibilities

12.1.You acknowledge that in the event asbestos or any other toxic substances are discovered at the worksite that it is your responsibility to ensure the safe removal of the same. You further agree to indemnify us against any costs incurred by us as a consequence of such discovery, including consequential losses and losses resulting from any delays in providing the Works.

12.2.Under no circumstances will we handle the removal of asbestos or toxic substances.

12.3.You will advise the location of all services (including without limitation, water, gas, electricity, telephone or any other underground service) to us prior to commencement of the Works.

12.4.Although we hold Public Liability Insurance and Contract Works Insurance for the Works to be provided under this Agreement, it is your responsibility to ensure that the Worksite is fully insured for your risks for the duration of the Works.

13.Accuracy of Your Plans, Measurements and Designs

13.1.In the event that you give us information relating to measurements and quantities of the Materials required it is your responsibility to verify the accuracy of the measurements and quantities before you place or we place an order based on these measurements and quantities.

13.2.We accept no responsibility for any loss, damages, or costs however resulting from your failure to comply with this clause 13.

13.3.We shall not be liable for any errors in the Works which are caused by design fault, by incorrect or inaccurate data being supplied by you or by any difference between the specification in the Scope of Works provided by you and the actual Works as completed. Any additional Works which may be required to rectify such errors shall be your responsibility and shall be charged as a Variation in accordance with clause 5.2.

14.Your Disclaimer

14.1.You hereby disclaim any right to rescind, or cancel any contract with us or to sue for damages or to claim restitution arising out of any inadvertent misrepresentation made to you by us and you acknowledge that the Works are contracted for and purchased relying solely upon your skill and judgment.

15.Defects

15.1.You shall inspect the Works on completion and shall within seven (7) days of such time (time being of the essence) notify us of any alleged defect, error or omission, shortage in quantity, damage or failure to comply with the Scope of Works or Order Form. You shall afford us an opportunity to inspect the Works within a reasonable time following such notification if you believe the Works are defective in any way. If you fail to comply with these provisions the Works shall be presumed to be free from any defect or damage.

15.2.For defective Works, which we have agreed in writing that you are entitled to reject, our liability is limited to either (at our discretion) rectifying or re-providing the Works.

16.Intellectual Property

16.1.Where we have designed, drawn, written plans or a schedule in a Scope of Works, or created any Materials for you, then the copyright in all such designs, drawings, documents, plans, schedules and Materials shall remain vested in us, and shall only be used by you with our written permission.

16.2.You warrant that all designs, specifications or instructions given to us will not cause us to infringe any patent, registered design or trademark in the execution of your order and you agree to indemnify us against any action taken by a third party against us in respect of any such infringement.

16.3.You agree that we may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings, plans or digital media of the Works supplied by us to you, or Materials which we have created for you.

17.Default and Consequences of Default

17.1.Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of 24% per annum (and at our sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.

17.2.If you owe us any money you shall indemnify us from and against all costs and disbursements incurred by us in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, collection agency costs, and bank dishonour fees).

17.3.Without prejudice to any other remedies we may have, if at any time you are in breach of any obligation (including those relating to payment) under these terms and conditions we may suspend or terminate the provision of Works to you. We will not be liable to you for any loss or damage you suffer because we have exercised our rights under this clause 17.3.

17.4.Without prejudice to our other remedies at law we shall be entitled to cancel all or any part of any order of yours which remains unfulfilled and all amounts owing to us shall, whether or not due for payment, become immediately payable if:

• 17.4.1.Any money payable to us becomes overdue, or in our reasonable opinion you will be unable to make a payment when it falls due;
• 17.4.2.You become insolvent or bankrupt, convene a meeting with your creditors or propose to or enter into an arrangement with creditors, or make an assignment for the benefit of your creditors; or a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of you or any asset of yours.

18.Cancellation

18.1.We may cancel any contract to which these terms and conditions apply or cancel the provision of the Works at any time before the Works have commenced by giving written notice to you. On giving such notice we shall repay to you any sums paid in respect of the Price. We shall not be liable for any loss or damage whatsoever arising from such cancellation.

19.Dispute Resolution

19.1.We will endeavour, but will not be required to resolve all disputes between you and us amicably provided that if we cannot resolve a dispute, then no proceedings will be issued in Court in respect of the dispute, until the parties have attempted to resolve the dispute by:

• 19.1.1.the dispute being mediated by a single mediator appointed by agreement between the parties and failing agreement and on the application of one of them, by the Chief Executive Officer for the time being of the Resolution Institute of New Zealand; or
• 19.1.2.the dispute being referred for adjudication by the Building Disputes Tribunal;
• 19.1.3.In each case the election of which dispute resolution process at 19.1.1 or 19.1.2 shall be at our sole discretion.

20.Assignment

20.1.You agree that we may assign all of our rights under this Agreement, including the right to payment of the Price, at any time after practical completion of the Works or, where required, the issue of a code compliance certificate.

21.Compliance with Laws

21.1.The parties shall comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities that may be applicable to the Works, including any occupational health and safety laws relating to building/construction sites and any other relevant safety standards or legislation.

21.2.The relevant legislation includes but is not limited to the Health and Safety at Work Act 2015, the Construction Contracts Act 2002 and the Building Act 2004.

21.3.You shall obtain (at your expense) all licenses, consents and approvals that may be required for the Works.

22.Consumer Guarantees Act 1993

22.1.If you are acquiring Works for the purposes of a trade or business, you acknowledge that the provisions of the Consumer Guarantees Act 1993 do not apply to the provision of the Works by us to you.

23.Privacy Act 2020

23.1.You authorise us or our agent to:

• 23.1.1.access, collect, retain and use any information about you;

• 23.1.2.disclose information about you, whether collected by us from you directly or obtained by us from any other source, to any other credit provider or any credit reporting agency for the purposes of providing or obtaining, a credit reference, debt collection or notifying a default by you.

23.2.Where you are a natural person the authorities under clause 25.1 are authorities or consents for the purposes of the Privacy Act 2020.

23.3.You shall have the right to request a copy of any information about you retained by us and the right to request us to correct any incorrect information about you held by us.

24.Construction Contracts Act 2002

24.1.You hereby expressly acknowledge that:

• 24.1.1.We have the right to suspend the Works within five (5) working days of written notice of our intent to do so if a payment claim is served on you, and;

24.1.2.If we suspend the Works, we:

24.1.2.1.Are not in breach of contract; and
24.1.2.2.Are not liable for any loss or damage whatsoever suffered, or alleged to be suffered, by you or by any person claiming through you; and
24.1.2.3.Are entitled to an extension of time to complete the contract; and
24.1.2.4.Keep our rights under the contract including the right to terminate the contract; and may at any time lift the suspension, even if the amount has not been paid or an adjudicator’s determination has not been complied with.

24.1.3.If we exercise the right to suspend the Works, the exercise of that right does not:

24.1.3.1.Affect any rights that would otherwise have been available to us under the Contract and Commercial Law Act 2017; or
24.1.3.2.Enable you to exercise any rights that may otherwise have been available to you under that Act as a direct consequence of us suspending the Works under this provision.

• 24.1.2.If we suspend the Works, we:

• 24.1.3.If we exercise the right to suspend the Works, the exercise of that right does not:
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25.Counterparts

25.1.This Agreement may be executed in any number of counterparts each of which will be an original but such counterparts together will constitute one and the same instrument and the date of the Agreement will be the date on which it is executed by the last party.

26.Costs

26.1.Each party will bear their own legal costs incurred with the preparation of this Agreement (if any).

27.General

27.1.Our failure to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect our right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.

27.2.We shall be under no liability whatsoever to you for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by you arising out of a breach by us of these terms and conditions (alternatively our liability shall be limited to damages which under no circumstances shall exceed the Price).

27.3.You shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to you by us nor to withhold payment of any invoice because part of that invoice is in dispute.

27.4.We may license or sub-contract all or any part of our rights and obligations under this Agreement without your consent.

27.5.You agree that we may amend these terms and conditions at any time. If we make a change to these terms and conditions, then that change will take effect from the date on which we notify you of such change. You will be taken to have accepted such changes if you make a further request for us to provide any Works to you.

27.6.Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.

27.7.You warrant that you have the power to enter into this Agreement and have obtained all necessary authorisations to allow you to do so, you are not insolvent and that this Agreement creates binding and valid legal obligations on you.