Abstract Floors Ltd
These Terms and Conditions of Trade ("Terms") govern all contracts between Abstract Floors Ltd ("Contractor") and the client named in any quote, invoice, or work order ("Client"). By accepting a quote or allowing work to commence, you agree to be bound by these Terms.
1. Definitions
- 1.1 "Contract"
- means these Terms together with any quotation, order, invoice or other document or amendment expressed to be supplemental to this Contract.
- 1.2 "Contractor"
- means Abstract Floors Ltd, its successors and assigns, or any person acting on its behalf.
- 1.3 "Client"
- means the person/s or entity requesting the Contractor to provide the Works as specified in any proposal, quotation, order or invoice, and: (a) if there is more than one Client, is a reference to each Client jointly and severally; (b) if the Client is a partnership, binds each partner jointly and severally; (c) if the Client is a trustee, binds them in that capacity; and (d) includes the Client's executors, administrators, successors and permitted assigns.
- 1.4 "Works"
- means all works (including consultation, supply and/or installation services) or Materials provided by the Contractor to the Client from time to time. Where the context permits, "Works" and "Materials" are interchangeable.
- 1.5 "Worksite"
- means the address nominated by the Client to which the Materials are to be supplied or at which the Works are to be performed.
- 1.6 "Price"
- means the price payable (plus GST where applicable) for the Works as agreed between the parties in accordance with clause 5.
- 1.7 "Non-Conforming Product"
- means a product that, when associated with a building: (a) is not or will not be safe; (b) does not or will not comply with relevant regulatory provisions; or (c) does not perform to the standard it is represented to conform to.
- 1.8 "Working Day"
- has the meaning given in the Interpretation Act 1999.
2. Acceptance
2.1 The Client is taken to have accepted and is immediately bound by these Terms if the Client places an order, accepts a Quote, or accepts delivery of any Works.
2.2 In the event of any inconsistency between these Terms and any other prior document between the parties, these Terms shall prevail.
2.3 Any amendment to these Terms may only be made in writing by the consent of both parties.
2.4 All descriptive specifications, illustrations, drawings, data, dimensions and weights in the Contractor's or manufacturer's fact sheets, price lists or advertising material are approximate only and given for identification purposes. The Client shall not be entitled to rely on such information, and their use does not constitute a sale by description or form part of the Contract, unless expressly stated in writing by the Contractor.
2.5 Where the Works are the subject of an insurance claim made by the Client, the Client remains responsible for payment of all amounts invoiced by the Contractor by the due date, regardless of whether the insurance claim is successful.
2.6 Where the Contractor gives advice or recommendations to the Client and that advice is not acted upon, the Contractor shall require written authorisation from the Client before commencing Works. The Contractor shall not be liable for any loss or damage arising after commencement in those circumstances. Any instruction by the Client for the Contractor to rectify damage or defects in Client-supplied materials will be treated as a variation and charged at the Contractor's current hourly rate.
2.7 Electronic signatures are accepted in accordance with section 226 of the Contract and Commercial Law Act 2017.
3. Errors and Omissions
3.1 The Client acknowledges that the Contractor accepts no liability in respect of any alleged or actual error or omission: (a) resulting from an inadvertent mistake in the formation or administration of this Contract; or (b) contained in or omitted from any literature supplied by the Contractor in respect of the Works.
3.2 Where such an error or omission is not attributable to the negligence or wilful misconduct of the Contractor, the Client shall not be entitled to treat this Contract as repudiated or invalid.
4. Change in Client Details
4.1 The Client shall give the Contractor not less than 14 days' prior written notice of any proposed change in ownership or material change in the Client's details (including name, address, contact details, change of trustees, or business practices). The Client shall be liable for any loss incurred by the Contractor as a result of the Client's failure to comply with this clause.
5. Price and Payment
5.1 The Price shall be the Contractor's quoted price, which is binding on the Contractor provided the Client accepts the quotation in writing within 30 days of the date of issue.
5.2 The Contractor reserves the right to adjust the Price if: (a) a variation to the Materials or Works is requested; (b) additional Works are required due to hidden or unidentifiable difficulties discovered on commencement (including poor site conditions, limited access, safety considerations, prerequisite third-party work not completed, or discovery of asbestos); or (c) there are increases in the cost of labour or materials beyond the Contractor's control.
5.3 Variations will be set out in writing and shown on the Contractor's invoice. The Client must respond to any variation within 10 Working Days. Failure to respond entitles the Contractor to add the variation cost to the Price. All variations must be paid in full upon completion.
5.4 A deposit of 50% of the Price is required upon acceptance of the Quote to secure materials and confirm installation dates. Work will not be scheduled until the deposit is received.
5.5 The balance of the Price is due within 7 days of practical completion, unless otherwise agreed in writing. Payment claims are issued in accordance with the Construction Contracts Act 2002.
5.6 The Contractor may deliver and invoice the Works in separate instalments. Each instalment shall be paid in accordance with these Terms.
5.7 The Client shall not be entitled to set off against, or deduct from, the Price any sums owed or claimed to be owed to the Client by the Contractor, nor to withhold payment of any invoice because part of that invoice is in dispute, unless the payment claim is made under the Construction Contracts Act 2002.
5.8 Unless otherwise stated, the Price is exclusive of GST. The Client must pay GST at the same time and on the same basis as the Price, without deduction or set-off.
5.9 Payment may be made by electronic/online banking or any other method agreed between the parties.
5.10 The Contractor may in its discretion allocate any payment received from the Client towards any invoice as it determines, at the time of receipt or at any time afterwards.
6. Provision of Works
6.1 The Contractor will commence the Works as soon as reasonably practicable after the deposit is received and the Worksite is ready.
6.2 Commencement and completion dates will be extended by a reasonable period if completion is delayed by events beyond the Contractor's control, including the Client's failure to: (a) make a product selection; (b) have the Worksite ready; or (c) notify the Contractor that the Worksite is ready.
6.3 Any timeframe given by the Contractor for delivery or completion is an estimate only. The Contractor is not liable for loss or damage resulting from late delivery. If the Contractor is unable to supply the Works due to any action or inaction of the Client, the Contractor may charge a reasonable fee for rescheduling and/or storage of materials.
6.4 Delivery costs are either included in the Price or charged additionally, at the Contractor's discretion, and will be disclosed in the Quote.
7. Worksite Access and Condition
7.1 The Client must ensure the Contractor has clear and unobstructed access to the Worksite at all times. The Contractor is not liable for damage to pathways, driveways, paved or grassed areas unless caused by the Contractor's own negligence.
7.2 The Client must remove all appliances and personal belongings from the installation area before work commences. The Contractor is not insured to move appliances and will not be liable for any loss, damage or costs arising from the Client's failure to comply.
7.3 The Client must provide the Contractor with reasonable access to water, electricity, toilet and washing facilities while on site.
7.4 All rubbish generated by the Contractor will be placed in a designated area nominated by the Client, but removal of rubbish from the Worksite is the Client's responsibility unless otherwise agreed.
7.5 The Client agrees to be present at the Worksite when reasonably requested by the Contractor.
8. Risk
8.1 Where the Contractor is supplying and installing Materials, it will maintain a contract works insurance policy until the Works are completed. Upon practical completion, all risk in the Works passes to the Client.
8.2 Where the Contractor supplies Materials only (without installation), all risk passes to the Client on delivery to the Worksite, even if the Client is not present at the time of delivery.
8.3 If the Client requests that Materials be left at an unattended location for collection, those Materials are at the Client's sole risk from that point. If Materials are lost, damaged or destroyed, replacement is at the Client's cost.
8.4 The Client warrants that all structures to which the Materials are to be affixed are capable of withstanding installation. If the Contractor reasonably believes the premises are not safe for the Works to proceed (including due to discovery of asbestos, defective structures, or other hazards), the Contractor is entitled to delay the Works until satisfied it is safe to proceed.
8.5 If the Contractor discovers asbestos or other hazardous materials while undertaking the Works, it will immediately notify the Client and may suspend the Works pending a risk assessment. The Client is liable for all additional costs arising from such discovery and any resulting suspension.
8.6 The Contractor will advise the Client if it believes there are issues with the sub-floor (including moisture or rotting floorboards), but acknowledges it is not always possible to identify such problems. The Contractor will not be liable for damage to Materials caused by sub-floor issues that could not reasonably have been identified prior to installation.
8.7 The Contractor is entitled to rely on the accuracy of any plans, specifications or other information provided by the Client. The Contractor accepts no responsibility for loss or damage resulting from inaccurate information supplied by the Client.
8.8 The Contractor is not liable for minor damage to adjoining surfaces unless caused by the Contractor's own negligence.
8.9 Where skirting boards or plasterboard do not run flush with the floor at the time of installation, the Contractor is not responsible for any cracking or splintering of those surfaces that results from the installation process.
8.10 Any damage to floor coverings caused by a third party after practical completion is the responsibility of the Client. Repairs not caused by the Contractor will be charged at current rates.
8.11 The Client acknowledges that: (a) variation in colour, shade and grain is inherent in timber and other natural flooring materials — the Contractor will not be liable for variation between batches or between sale samples and the final product; (b) colour matching between new and existing materials may not be exact due to fading and wear; and (c) vinyl adhesives can take up to 48 hours to cure fully — the Client should use a protective mat when moving heavy appliances over new vinyl during this period.
9. Hidden Services
9.1 Before the Contractor commences any work, the Client must advise the Contractor of the precise location of all hidden services at the Worksite and clearly mark them. Hidden services include, but are not limited to, electrical cables, gas lines, sewer and water pipes, irrigation pipes, telephone and fibre optic cables, and any other services at the Worksite.
9.2 While the Contractor will take all reasonable care to avoid damage to hidden services, the Client agrees to indemnify the Contractor against all liability, claims, loss, damage, costs and fines arising from damage to services not precisely located and notified as required by clause 9.1.
10. Compliance with Laws
10.1 Both the Client and the Contractor will comply with all applicable statutes, regulations and bylaws, including all WorkSafe health and safety legislation applicable to the Works.
10.2 Where the Client supplies materials for the Contractor to work with, the Client accepts responsibility for the suitability of those materials for their intended purpose. If the Contractor reasonably believes any Client-supplied materials are non-conforming or will not comply with New Zealand regulations, the Contractor may halt the Works until conforming materials are sourced. All associated costs will be charged as a variation.
10.3 The Client shall obtain, at its own cost, all licences and approvals required for the Works.
10.4 The Contractor will comply with the Health and Safety at Work Act 2015, including its obligations under sections 28 and 34 of that Act, whether acting as a principal contractor or subcontractor.
11. Title
11.1 Ownership of all Materials supplied by the Contractor does not pass to the Client until the Client has paid all amounts owing in full and met all other obligations under this Contract.
11.2 Receipt of any form of payment other than cash does not constitute payment until that payment has been honoured, cleared and recognised.
11.3 Until ownership passes to the Client: (a) the Client holds the Materials as bailee only, and must return them to the Contractor on request (unless they have become fixtures); (b) the Client holds the benefit of any insurance over the Materials on trust for the Contractor and must pay insurance proceeds to the Contractor if the Materials are lost, damaged or destroyed; (c) the Client must not sell, dispose of or part with possession of the Materials except in the ordinary course of business — if the Client does so, the proceeds are held on trust for the Contractor; (d) the Client must not charge or grant any encumbrance over the Materials; (e) the Contractor is irrevocably authorised to enter any premises where the Materials are kept and recover possession of them (unless they have become fixtures); and (f) the Contractor may commence proceedings to recover the Price notwithstanding that ownership has not yet passed.
12. Personal Property Securities Act 1999 ("PPSA")
12.1 By accepting these Terms, the Client acknowledges that: (a) these Terms constitute a security agreement for the purposes of the PPSA; and (b) a security interest is taken in all Materials supplied (and to be supplied) by the Contractor to the Client, and in any monetary obligation of the Client to the Contractor for Works.
12.2 The Client undertakes to: (a) sign any further documents and provide any further information reasonably required by the Contractor to register a financing statement on the Personal Property Securities Register; (b) indemnify the Contractor for all expenses incurred in registering or releasing such a financing statement; and (c) not register, or permit registration of, any financing statement in respect of the Materials in favour of a third party without the Contractor's prior written consent.
12.3 The Contractor and the Client agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these Terms.
12.4 The Client waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129 and 131 of the PPSA.
12.5 Unless otherwise agreed in writing, the Client waives its right to receive a verification statement under section 148 of the PPSA.
13. Security and Charge
13.1 In consideration of the Contractor agreeing to supply the Works, the Client charges all of its rights, title and interest in any land or other assets capable of being charged (whether owned now or in the future) to secure the Client's obligations under these Terms, including payment of all money owing.
13.2 The Client indemnifies the Contractor for all costs and disbursements, including legal costs on a solicitor-client basis, incurred in exercising rights under this clause.
13.3 The Client irrevocably appoints the Contractor and each director of the Contractor as attorney to perform all acts necessary to give effect to this clause, including signing documents on the Client's behalf.
14. Defects
14.1 The Client must inspect the Works and Materials on delivery or completion and notify the Contractor in writing within 7 days of any alleged defect, shortage, damage, or failure to comply with the Quote (time being of the essence). If the Client fails to notify within 7 days, the Works and Materials shall be presumed to be free from defect or damage.
14.2 Where the Contractor agrees in writing that the Client is entitled to reject defective Materials, the Contractor's liability is limited to replacing or repairing those Materials at the Contractor's discretion.
15. Returns
15.1 Materials will only be accepted for return if: (a) the Client has complied with clause 14.1; (b) the Contractor has agreed in writing to accept the return; (c) the Materials are returned at the Client's cost within 7 days of the delivery date; and (d) the Materials are returned in the condition in which they were delivered, with all packaging and documentation.
15.2 Non-stock items or Materials made to the Client's specifications will not be accepted for return or credit under any circumstances.
16. Warranties
16.1 The Contractor warrants that if any defect in workmanship becomes apparent and is reported to the Contractor within 12 months of the date of completion (time being of the essence), the Contractor will, at its discretion, repair or replace the affected workmanship.
16.2 This warranty does not cover defects caused or contributed to by: (a) failure to properly maintain the Materials; (b) failure to follow the Contractor's or manufacturer's instructions; (c) use of Materials for a purpose other than that specified; (d) continued use after a defect becomes apparent; or (e) fair wear and tear, accident, or act of God.
16.3 The warranty is void if the workmanship is repaired, altered or interfered with without the Contractor's written consent.
16.4 For Materials not manufactured by the Contractor, the warranty is the manufacturer's current warranty only.
16.5 Where the Services constitute "building work" as defined in the Building Act 2004, the implied warranties under section 362I of that Act are incorporated into this Contract.
16.6 To the fullest extent permitted by law, all other warranties, representations and conditions (whether express or implied) are excluded.
17. Consumer Guarantees Act 1993
17.1 If the Client is acquiring the Works for the purposes of a trade or business, the Client acknowledges that the provisions of the Consumer Guarantees Act 1993 do not apply to the supply of Works by the Contractor to the Client, to the extent permitted by section 43 of that Act.
17.2 Where the Client is a consumer within the meaning of the Consumer Guarantees Act 1993, nothing in these Terms limits the Client's rights under that Act.
18. Intellectual Property
18.1 All copyright in designs, drawings, plans, schedules and documents prepared by the Contractor for the Client remains vested in the Contractor and may only be used by the Client with the Contractor's express written approval.
18.2 The Client warrants that any designs, specifications or instructions it provides will not cause the Contractor to infringe any patent, registered design or trademark. The Client agrees to indemnify the Contractor against any third-party claims arising from such infringement.
18.3 The Client agrees that the Contractor may use, at no cost, any documents, photographs or designs the Contractor has created for the Client for marketing purposes or entry into trade competitions.
19. Default and Consequences of Default
19.1 Interest on overdue invoices accrues daily from the due date at 2.5% per calendar month (compounding monthly at the Contractor's discretion), both before and after any judgment.
19.2 The Client shall indemnify the Contractor for all costs of recovering any debt, including internal administration fees, legal costs on a solicitor-client basis, collection agency fees, and bank dishonour fees.
19.3 Without prejudice to its other rights, the Contractor may cancel unfulfilled orders and declare all amounts owing immediately due and payable if: (a) any invoice is overdue or the Contractor reasonably believes the Client will be unable to pay; (b) the Client becomes insolvent or bankrupt; or (c) a receiver, manager or liquidator is appointed in respect of the Client or any of its assets.
20. Cancellation
20.1 If the Client is in breach of any obligation under this Contract and fails to remedy that breach within 10 Working Days of written notice, the Contractor may suspend or terminate the supply of Works without liability to the Client.
20.2 The Contractor may cancel any contract at any time before the Works commence by giving written notice to the Client. On cancellation, the Contractor will refund any amounts paid, less the value of any Works already performed.
20.3 If the Client cancels, the Client is liable for all direct and indirect loss incurred by the Contractor as a result, including loss of profit.
20.4 Cancellation of orders for materials made to the Client's specifications or non-stock items will not be accepted once production has commenced or an order has been placed with a supplier.
21. Privacy
21.1 The Contractor collects, holds and uses personal information in accordance with the Privacy Act 2020. Information collected is used solely for the purposes of providing the Works, administering payment, and communicating with the Client. The Client has the right to access and correct their personal information held by the Contractor.
21.2 The Client authorises the Contractor to access, collect, retain and use information about the Client for the purpose of providing the Works and, where consented to, for marketing. The Contractor may disclose Client information to credit providers or credit reporting agencies for credit reference or debt collection purposes.
21.3 The Contractor will notify the Client of any data breach that may result in serious harm, in accordance with the Privacy Act 2020.
22. Suspension of Works
22.1 The Contractor has the right to suspend Works under section 24A of the Construction Contracts Act 2002 by giving 5 Working Days' written notice where a payment claim has been served and: (a) the full amount has not been paid by the due date and no payment schedule has been provided; (b) a scheduled amount in a payment schedule has not been paid by its due date; or (c) the Client has not complied with an adjudicator's payment determination.
22.2 If the Contractor suspends Works, it: (a) is not in breach of Contract; (b) is not liable for any loss or damage suffered by the Client; (c) is entitled to an extension of time; and (d) retains all rights under the Contract, including the right to terminate.
22.3 If the default causing suspension remains unremedied for 10 or more Working Days, the Contractor may terminate the Contract in accordance with clause 20.
22.4 All costs arising from a suspension and subsequent recommencement caused by the Client's default will be treated as a variation and charged to the Client accordingly.
23. Service of Notices
23.1 Any notice under this Contract is deemed to have been given and received when: (a) handed to the other party in person; (b) left at the other party's last known address; (c) sent by registered post to the other party's last known address; or (d) sent by email to the other party's last known email address.
23.2 A notice sent by post is deemed received at the time it would ordinarily have been delivered in the normal course of post, unless the contrary is shown.
24. Trusts
24.1 If the Client is acting as a trustee of any trust when entering into this Contract, the Client covenants that: (a) it has full power and authority under the trust to enter into this Contract; (b) it will not take any action to release, impair or prejudice its right of indemnity against the trust or trust fund; and (c) it will not, without the Contractor's prior written consent, cause or permit the removal of the Client as trustee, any variation to the trust deed, any distribution of trust capital, or any resettlement of trust property.
25. General
25.1 Dispute Resolution. Any dispute shall first be submitted to good-faith negotiation. If unresolved within 10 Working Days of written notice, either party may refer the dispute to adjudication under the Construction Contracts Act 2002, or to arbitration under the Arbitration Act 1996.
25.2 Liability cap. To the fullest extent permitted by law, the Contractor's total liability is limited to the amount paid by the Client for the specific Works giving rise to the claim. The Contractor is not liable for any indirect, consequential or economic loss, including loss of profit or loss of use.
25.3 Force Majeure. Neither party is liable for failure or delay caused by events beyond their reasonable control, including acts of God, war, terrorism, strike, lockout, industrial action, fire, flood, storm, or pandemic.
25.4 Assignment. The Contractor may assign or subcontract all or any part of its rights and obligations under this Contract without the Client's consent, but shall not be relieved of its obligations by doing so. The Client may not assign its rights without the Contractor's prior written consent.
25.5 Amendments. The Contractor may amend these Terms for future contracts by notifying the Client in writing. Amendments take effect from the date the Client accepts them or next requests Works from the Contractor, whichever is earlier.
25.6 Governing law. These Terms are governed by the laws of New Zealand and the parties submit to the non-exclusive jurisdiction of the New Zealand courts.
25.7 Severability. If any provision is found to be invalid, unlawful or unenforceable, it will be severed and the remaining provisions will continue in full force.
25.8 Waiver. Failure by either party to enforce any provision does not constitute a waiver of that right.
25.9 Entire agreement. These Terms, together with the Quote, constitute the entire agreement between the parties and supersede all prior representations, negotiations and understandings.
25.10 Both parties warrant that they have the authority to enter into this Contract, are not insolvent, and that this Contract creates binding and valid obligations on them.