TERMS OF TRADE

 

  1.  Definitions
    1. “Contract” means the terms and conditions contained herein, together with any Quotation, order, invoice or other document or amendments expressed to be supplemental to this Contract.
    2. “CFL” means Central Foundations Ltd, its successors and assigns or any person acting on behalf of and with the authority of Central Foundations Ltd.
    3. “Client” means the person/s, entities or any person acting on behalf of and with the authority of the Client requesting CFL to provide the Works as specified in any proposal, quotation, order, invoice or other documentation, and:
      if there is more than one Client, is a reference to each Client jointly and severally; and
      if the Client is a partnership, it shall bind each partner jointly and severally; and
      if the Client is a part of a Trust, shall be bound in their capacity as a trustee; and
      includes the Client’s executors, administrators, successors and permitted assigns.
    4. “Works” means all Works (including consultation, manufacturing and/or installation services) or Materials supplied by CFL to the Client at the Client’s request from time to time (where the context so permits the terms ‘Works’ or ‘Materials’ shall be interchangeable for the other).
    5. “Confidential Information” means information of a confidential nature whether oral, written or in electronic form including, but not limited to, this Contract, either party’s intellectual property, operational information, know-how, trade secrets, financial and commercial affairs, contracts, client information (including but not limited to, “Personal Information” such as: name, address, D.O.B, occupation, driver’s license details, electronic contact (email, Facebook or Twitter details), medical insurance details or next of kin and other contact information (where applicable), previous credit applications, credit history) and pricing details.
    6. “Confidential Information” means information of a confidential nature whether oral, written or in electronic form including, but not limited to, this Contract, either party’s intellectual property, operational information, know-how, trade secrets, financial and commercial affairs, contracts, client information (including but not limited to, “Personal Information” such as: name, address, D.O.B, occupation, driver’s license details, electronic contact (email, Facebook or Twitter details), medical insurance details or next of kin and other contact information (where applicable), previous credit applications, credit history) and pricing details.
    7. “Price” means the Price payable (plus any Goods and Services Tax (“GST”) where applicable) for the Works as agreed between CFL and the Client in accordance with clause 6 below.
  2. Acceptance
    1. The Client is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Client places an order for or accepts delivery of any Works.
    2. In the event of any inconsistency between the terms and conditions of this Contract and any other prior document or schedule that the parties have entered into, the terms of this Contract shall prevail.
    3. Any amendment to the terms and conditions contained in this Contract may only be amended in writing by the consent of both parties.
      The Client acknowledges that the supply of Works on credit shall not take effect until the Client has completed a credit application with CFL and it has been approved with a credit limit established for the account.
    4. In the event that the supply of Works request exceeds the Clients credit limit and/or the account exceeds the payment terms, CFL reserves the right to refuse delivery.
    5. The Client accepts that if the Works (including but not limited to foundation pouring) are delayed for a period exceeding seven (7) days, then CFL reserves the right to remove all pre-installed Materials (including boxing and other incidental items) until such a time that the Works are re-scheduled. In such circumstances CFL reserves the right to charge the Client a reasonable fee.
    6. Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 226 of the Contract and Commercial Law Act 2017 or any other applicable provisions of that Act or any Regulations referred to in that Act.
  3. Errors and Omissions
    1. The Client acknowledges and accepts that CFL shall, without prejudice, accept no liability in respect of any alleged or actual error(s) and/or omission(s):
      (a) resulting from an inadvertent mistake made by CFL in the formation and/or administration of this Contract; and/or
      (b) contained in/omitted from any literature (hard copy and/or electronic) supplied by CFL in respect of the Works.
    2. In the event such an error and/or omission occurs in accordance with clause 3.1, and is not attributable to the negligence and/or wilful misconduct of CFL; the Client shall not be entitled to treat this Contract as repudiated nor render it invalid.
  4. Authorised Representatives
    1. Unless otherwise limited as per clause 4.2 the Client agrees that should the Client introduce any third party to CFL as the Client’s duly authorised representative, that once introduced that person shall have the full authority of the Client to order any Materials or Works on the Client’s behalf and/or to request any variation to the Works on the Client’s behalf (such authority to continue until all requested Works have been completed or the Client otherwise notifies CFL in writing that said person is no longer the Client’s duly authorised representative).
    2. In the event that the Client’s duly authorised representative as per clause 4.1 is to have only limited authority to act on the Client’s behalf, then the Client must specifically and clearly advise CFL in writing of the parameters of the limited authority granted to their representative.
    3. The Client specifically acknowledges and accepts that they will be solely liable to CFL for all additional costs incurred by CFL (including CFL’s profit margin) in providing any Works, Materials or variation/s requested by the Client’s duly authorised representative (subject always to the limitations imposed under clause 4.2 (if any)).
  5. Change in Control
    1. The Client shall give CFL not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client and/or any other change in the Client’s details (including but not limited to, changes in the Client’s name, address, contact phone or fax number/s, change of trustees, or business practice). The Client shall be liable for any loss incurred by CFL as a result of the Client’s failure to comply with this clause.
  6. Price and Payment
    1. At CFL’s sole discretion the Price shall be either:
      (a) as indicated on invoices provided by CFL to the Client in respect of Works performed or Materials supplied; or
      (b) CFL’s quoted Price (subject to clause 6.2) which shall be binding upon CFL provided that the Client shall accept CFL’s quotation in writing within thirty (30) days.
    2. CFL reserves the right to change the Price:
      (a) if a variation to the Materials which are to be supplied is requested; or
      (b) if a variation to the Works originally scheduled (including any applicable plans or specifications) is requested; or
      (c) where additional Works are required due to the discovery of hidden or unidentifiable difficulties (including, but not limited to, poor weather conditions, limitations to site access, ready availability of Materials, variations in quantity or volume of Materials to be supplied, prerequisite work by a third party not being completed, inaccurate measurements, plans or specifications supplied by the Client, hard rock or other barriers below the surface, latent soil conditions, iron reinforcing rods in concrete, or hidden pipes and wiring, etc.) which are only discovered on commencement of the Works; or
      (d) in the event of increases to CFL in the cost of labour or materials which are beyond CFL’s control.
    3. Variations will be charged for on the basis of CFL’s quotation, and will be detailed in writing, and shown as variations on CFL’s invoice. The Client shall be required to respond to any variation submitted by CFL within ten (10) working days. Failure to do so will entitle CFL to add the cost of the variation to the Price. Payment for all variations must be made in full at the time of their completion.
    4. At CFL’s sole discretion a non-refundable deposit may be required.
    5. Time for payment for the Works being of the essence, the Price will be payable by the Client on the date/s determined by CFL, which may be:
      (a) on completion of the Works; or
      (b) by way of progress payments in accordance with CFL’s specified progress payment schedule. Such progress payment claims may include the reasonable value of authorised variations and the value of any Materials delivered to the worksite but not yet installed;
      (c) for certain approved Client’s, due twenty (20) days following the end of the month in which a statement is posted to the Client’s address or address for notices;
      (d) the date specified on any invoice or other form as being the date for payment; or
      (e) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Client by CFL.
    6. At the agreement of both parties, payment of the Price may be subject to retention by the Client of an amount (hereafter called the “Retention Money”), being a set amount or equal to a percentage of the Price. The Client shall hold the Retention Money for the agreed period following completion of the Works during which time all Works are to be completed and/or all defects are to be remedied. Any Retention Money applicable to this Contract is to be dealt with in accordance with section 18 of the Construction Contracts Act 2002.
    7. Payment may be made by cheque, electronic/on-line banking, or by any other method as agreed to between the Client and CFL.
    8. CFL may in its discretion allocate any payment received from the Client towards any invoice that CFL determines and may do so at the time of receipt or at any time afterwards. On any default by the Client CFL may re-allocate any payments previously received and allocated. In the absence of any payment allocation by CFL, payment will be deemed to be allocated in such manner as preserves the maximum value of CFL’s Purchase Money Security Interest (as defined in the PPSA) in the Materials.
    9. 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 CFL nor to withhold payment of any invoice because part of that invoice is in dispute unless the request for payment by CFL is a claim made under the Construction Contracts Act 2002.
    10. Unless otherwise stated the Price does not include GST. In addition to the Price, the Client must pay to CFL an amount equal to any GST CFL must pay for any supply by CFL under this or any other agreement for the sale of the Materials. The Client must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Client pays the Price. In addition, the Client 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.
  7. Provision of the Works
    1. Subject to clause 7.2 it is CFL’s responsibility to ensure that the Works start as soon as it is reasonably possible.
    2. The Works’ commencement date will be put back and the completion date extended by whatever time is reasonable in the event that CFL claims an extension of time (by giving the Client written notice) where completion is delayed by an event beyond CFL’s control, including but not limited to any failure by the Client to:
      (a) make a selection; or
      (b) have the site ready for the Works; or
      (c) notify CFL that the site is ready.
    3. CFL may deliver the Works by separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions
    4. Any time specified by CFL for delivery of the Works is an estimate only and CFL will not be liable for any loss or damage incurred by the Client as a result of delivery being late. However both parties agree that they shall make every endeavour to enable the Works to be supplied at the time and place as was arranged between both parties. In the event that CFL is unable to supply the Works as agreed solely due to any action or inaction of the Client, then CFL shall be entitled to charge a reasonable fee for re-supplying the Works at a later time and date, and/or for storage of the Materials.
  8. Risk
    1. If CFL retains ownership of the Materials under clause 15 then:
      (a) where CFL is supplying Materials only, all risk for the Materials shall immediately pass to the Client on delivery and the Client must insure the Materials on or before delivery. Delivery of the Materials shall be deemed to have taken place immediately at the time that either;
      (i) the Client or the Client’s nominated carrier takes possession of the Materials at CFL’s address; or
      (ii) the Materials are delivered by CFL or CFL’s nominated carrier to the Client’s nominated delivery address (even if the Client is not present at the address).
      (b) where CFL is to both supply and install Materials then CFL shall maintain a contract works insurance policy until the Works are completed. Upon completion of the Works all risk for the Works shall immediately pass to the Client.
    2. Notwithstanding the provisions of clause 8.1 if the Client specifically requests CFL to leave Materials outside CFL’s premises for collection or to deliver the Materials to an unattended location then such materials shall always be left at sole risk of the Client and it shall be the Client’s responsibility to ensure the Materials are insured adequately or at all. In the event that such Materials are lost, damaged or destroyed then replacement of the Materials shall be at the Client’s expense.
    3. The Client warrants that the structure of the premises or equipment in or upon which these Materials are to be installed or erected is sound and will sustain the installation and Works incidental thereto and CFL shall not be liable for any claims, demands, losses, damages, costs and expenses howsoever caused or arising should the premises or equipment be unable to accommodate the installation.
    4. Where the Client has supplied materials for CFL to complete the Works, the Client acknowledges and accepts responsibility for the suitability of purpose, quality and any faults inherent in the materials. CFL shall not be responsible for any defects in the materials, any loss or damage to the materials (or any part thereof), howsoever arising from the use of materials supplied by the Client.
    5. In the event that during the course of the Works CFL discovers any fossils, artefacts or any other remains of geological or archaeological interest are discovered CFL reserves the right to halt all Works, remove any of their equipment from the Worksite and immediately notify the Client. Unless subject to clause 27.8, the Client accepts and agrees that all additional costs that may be incurred by CFL as a result of any such delays (including but not limited to in the event CFL is unable to remove their equipment from the Worksite, etc.) shall be borne by the Client and shall be treated as a variation in accordance with clause 6.2.
    6. CFL shall be entitled to rely on the accuracy of any plans, specifications, geotechnical reports and other information provided by the Client. The Client acknowledges and agrees that in the event that any of this information provided by the Client is inaccurate, CFL accepts no responsibility for any loss, damages, or costs however resulting from these inaccurate plans, specifications or other information.
    7. The Client acknowledges that, whilst CFL shall make all endeavours to remove from the site all rubbish, excavated material, vegetation, demolished or dismantled structures, CFL shall not be held liable for any small amounts of rubbish, and the like, remaining at the site.
    8. In the event that during the course of the Works CFL discovers any undisclosed waste and/or hazardous materials then CFL reserves the right to halt all Works and immediately notify the Client. It shall be the responsibility of the Client to arrange the removal of all such materials. In the event that CFL agrees to remove such materials for the Client then this shall be treated as a variation in accordance with clause 6.2 and shall be in addition to the Price.
    9. The Client agrees to indemnify CFL from any damage caused by any other tradesman during and after the completion of the Works. If the Client instructs CFL to rectify any damage caused by any other tradesman, this will become a variation to the original quotation and will be charged at CFL’s normal hourly rate per clause 6.2.
    10. CFL will take all reasonable precautions against fire during site gas cutting, welding, and other installation procedures. Insurance of buildings and contents etc., and any items installed during installation shall be the responsibility of the Client.
    11. The final location of the exact drilling or excavation site must be determined on site by the Client and is the Client’s sole responsibility.
    12. If during the drilling operation, and as a result of extraordinary down hole issues, CFL decides (based on industry experience) that the risk is too great to continue the hole, CFL shall advise the Client, or the Client’s agent, regarding the risk of continuing. Where such advice is not acted on, and CFL is requested on continue, then CFL shall require the Client or their agent to authorise the continuance of the Works in writing. CFL shall not be liable in any way whatsoever for any damages or losses that occur after any subsequent continuance of the Works, and the Client shall reimburse CFL for any equipment lost at the landed, new cost price of the replacement equipment.
    13. Any advice, recommendation, information, assistance or service provided by CFL in relation to Works provided is given in good faith, is based on CFL’s own knowledge and experience and shall be accepted without liability on the part of CFL and it shall be the responsibility of the Client to confirm the accuracy and reliability of the same in light of the use to which the Client makes or intends to make of the Works.
  9. Concrete Risk
    1. The Client acknowledges that Materials supplied may:
      (a) exhibit variations in shade tone, colour, texture, markings, veining, occlusions, size, grade, surface and finish;
      (b) fade or change colour over time; and
      (c) expand, contract or distort as a result of exposure to heat, cold, weather; and
      (d) mark or stain if exposed to certain substances; and
      (e) be damaged or disfigured by impact or scratching.
    2. CFL gives no guarantee (expressed or implied) as to the length of time the curing process will take and/or against cracking of concrete that may occur naturally in the works such as:
      (a) hairline cracking of paving and grout; or
      (b) damage caused by contact with chemicals, solvents, oils or any other substances; or
      (c) the affects by elements such as heat exposure or wet weather conditions that prolong the curing process.
    3. The Client acknowledges and agrees that it is their responsibility to organise and be liable for all costs associated with protecting the concrete and shall take all reasonable precautions to protect against destruction or damage by way of vandalism. In the event that the concrete is destroyed or damaged due to vandalism then the cost of repair or replacement shall be borne by the Client.
    4. CFL shall not be liable for any defect in the Works if the Client does not follow CFL’s recommendations, including:
      (a) to water the concrete periodically to limit the risk of possible cracking due to weather conditions;
      (b) that no foot traffic and/or any vehicles on the concrete for a minimum of forty-eight (48) hours but preferably seven (7) days;
      (c) that no heavy furniture is to be placed on the concrete area for a minimum of twenty-four (24) hours.
    5. Where CFL gives advice or recommendations to the Client, or the Client’s agent, regarding the suitability of the worksite for the laying of concrete slabs, foundations or similar works and such advice or recommendations are not acted upon then CFL shall require the Client or their agent to authorise commencement of the works in writing. CFL shall not be liable in any way whatsoever for any damages or losses that occur after any subsequent commencement of the works.
    6. The Client shall supply an area suitable for washing out CFL’s equipment and for depositing all unused concrete and slurry.
  10. Client’s Responsibilities
    1. The Client agrees to remove any items from the vicinity of the Works and agrees that CFL shall not be liable for any damage caused to those items through the Client’s failure to comply with this clause.
    2. It shall be the Client’s responsibility (where applicable) to ensure that, prior to commencement of the Works by CFL:
      (a) all gas and electricity are cancelled and disconnected (from the main supply at the street); and
      (b) a safety fence is erected around the perimeter of the site to ensure public safety; and
      (c) investigate local laws in relation to the pruning and/or removal of trees, and (where necessary) obtain (at the expense of the Client) all permits, licenses and approvals that may be required for the Works. Temporary fences may need to be erected around the circumference of the tree, and if so, the Client shall arrange the erection in conjunction with CFL; and
      (d) the Client will supply temporary lighting, telecommunications, compressed air, lighting, toilet, waste disposal amenities, eating and first aid facilities if required.
    3. Notwithstanding clause 10.2(c) the Client acknowledges and agrees to advise CFL prior to commencement of any Works where the removal of any trees may be subject to a protection order and/or on a heritage list and warrants to ensure that CFL’s Works will comply with the relevant restrictions, legislation and/or by-laws. CFL shall not be liable for any loss, expense or damage suffered by the Client in relation to the Works where resulting from the Client’s non-compliance with this clause.
  11. Access
    1. The Client shall ensure that CFL has clear and free access to the work site at all times to enable them to undertake the Works. CFL shall not be liable for any loss or damage to the site (including, without limitation, damage to pathways, driveways and concreted or paved or grassed areas) unless due to the negligence of CFL. The Client accepts however, that some damage may result during the provision of the Works that is beyond CFL’s control.
    2. It is the responsibility of the Client to ensure that access is suitable to accept the weight of laden trucks, front end loaders or other earth moving equipment as may be deemed necessary by CFL.
  12. Underground Locations And Hidden Services
    1. Prior to CFL commencing any work the Client must advise CFL of the precise location of all underground services on the site and clearly mark the same. The underground mains & services the Client must identify include, but are not limited to, electrical services, gas services, sewer services, pumping services, sewer connections, sewer sludge mains, water mains, irrigation pipes, telephone cables, fibre optic cables, oil pumping mains, and any other services that may be on site.
    2. Whilst CFL will take all care to avoid damage to any underground services the Client agrees to indemnify CFL in respect of all and any liability claims, loss, damage, costs and fines as a result of damage to services not precisely located and notified as per clause 12.1.
  13. Compliance with Laws
    1. The Client and CFL 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.
    2. The Client shall obtain (at the expense of the Client) all licenses and approvals that may be required for the Works.
    3. The Client agrees that the site will comply with any WorkSafe guidelines in relation to health and safety laws pertaining to building/construction sites and any other relevant safety standards or legislation.
  14. Insurance
    1. Unless otherwise stated in writing, CFL shall not be responsible for loss or damage that occurs due to burglary, fire, water accident or any other cause to the Client’s property when left in CFL’s custody, and it shall not be obligatory on the part of CFL to ensure or exercise special care with the Client’s property.
    2. CFL shall have public liability insurance of at least five million dollars ($5m). It is the Client’s responsibility to ensure that they are similarly insured during the course of the Works.
  15. Title
    1. CFL and the Client agree that ownership of the Materials shall not pass until:
      (a) the Client has paid CFL all amounts owing to CFL; and
      (b) the Client has met all of its other obligations to CFL.
    2. Receipt by CFL of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised.
    3. It is further agreed that:
      (a) until ownership of the Materials passes to the Client in accordance with clause 15.1 that the Client is only a bailee of the Materials and unless the Materials have become fixtures must return the Materials to CFL on request;
      (b) the Client holds the benefit of the Client’s insurance of the Materials on trust for CFL and must pay to CFL the proceeds of any insurance in the event of the Materials being lost, damaged or destroyed;
      (c) the production of these terms and conditions by CFL shall be sufficient evidence of CFL’s rights to receive the insurance proceeds direct from the insurer without the need for any person dealing with CFL to make further enquiries;
      (d) the Client 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 the Client sells, disposes or parts with possession of the Materials then the Client must hold the proceeds of any such act on trust for CFL and must pay or deliver the proceeds to CFL on demand;
      (e) the Client should not convert or process the Materials or intermix them with other goods but if the Client does so then the Client holds the resulting product on trust for the benefit of CFL and must sell, dispose of or return the resulting product to CFL as it so directs;
      (f) unless the Materials have become fixtures the Client irrevocably authorises CFL to enter any premises where CFL believes the Materials are kept and recover possession of the Materials;
      (g) CFL may recover possession of any Materials in transit whether or not delivery has occurred;
      (h) the Client shall not charge or grant an encumbrance over the Materials nor grant nor otherwise give away any interest in the Materials while they remain the property of CFL;
      (i) CFL may commence proceedings to recover the Price of the Materials sold notwithstanding that ownership of the Materials has not passed to the Client.
  16. Personal Property Securities Act 1999 (“PPSA”)
    1. Upon assenting to these terms and conditions in writing the Client acknowledges and agrees that:
      (a) these terms and conditions constitute a security agreement for the purposes of the PPSA; and
      (b) a security interest is taken in all Materials and/or collateral (account) – being a monetary obligation of the Client to CFL for Works – that have previously been supplied and that will be supplied in the future by CFL to the Client.
    2. The Client undertakes to:
      (a) sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which CFL may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register;
      (b) indemnify, and upon demand reimburse, CFL for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register or releasing any Materials charged thereby;
      (c) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Materials and/or collateral (account) in favour of a third party without the prior written consent of CFL; and
      (d) immediately advise CFL of any material change in its business practices of selling Materials which would result in a change in the nature of proceeds derived from such sales.
    3. CFL and the Client agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms and conditions.
    4. The Client waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA.
    5. Unless otherwise agreed to in writing by CFL, the Client waives its right to receive a verification statement in accordance with section 148 of the PPSA.
    6. The Client shall unconditionally ratify any actions taken by CFL under clauses 16.1 to 16.5.
    7. Subject to any express provisions to the contrary (including those contained in this clause 16), nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.
  17. Security and Charge
    1. In consideration of CFL agreeing to supply the Works, the Client charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, 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 (including, but not limited to, the payment of any money).
    2. The Client indemnifies CFL from and against all CFL’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising CFL’s rights under this clause.
    3. The Client irrevocably appoints CFL and each director of CFL as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 17 including, but not limited to, signing any document on the Client’s behalf.
  18. Defects In Materials And Returns
    1. The Client shall inspect the Materials on delivery and shall within seven (7) days of delivery (time being of the essence) notify CFL of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Client shall afford CFL an opportunity to inspect the Materials within a reasonable time following delivery if the Client believes the Materials are defective in any way. If the Client shall fail to comply with these provisions the Materials shall be presumed to be free from any defect or damage. For defective Materials, which CFL has agreed in writing that the Client is entitled to reject, CFL’s liability is limited to either (at CFL’s discretion) replacing the Materials or repairing the Materials.
    2. Materials will not be accepted for return other than in accordance with 18.1 above.
    3. Returns will only be accepted provided that:
      (a) the Client has complied with the provisions of clause 18.1; and
      (b) CFL has agreed in writing to accept the return of the Materials; and
      (c) the Materials are returned at the Client’s cost within seven (7) days of the delivery date; and
      (d) CFL will not be liable for Materials which have not been stored or used in a proper manner; and
      (e) the Materials are returned in the condition in which they were delivered and with all packaging material, brochures and instruction material in as new condition as is reasonably possible in the circumstances.
    4. Non-stocklist items or Materials made to the Client’s specifications are under no circumstances acceptable for credit or return.
  19. Warranties
    1. Subject to the conditions of warranty set out in clause 19.2 CFL warrants that if any defect in any workmanship of CFL becomes apparent and is reported to CFL within twelve (12) months of the date of delivery (time being of the essence) then CFL will either (at CFL’s sole discretion) replace or remedy the workmanship.
    2. The conditions applicable to the warranty given by clause 19.1 are:
      (a) the warranty shall not cover any defect or damage which may be caused or partly caused by or arise through:
      (i) failure on the part of the Client to properly maintain any Materials; or
      (ii) failure on the part of the Client to follow any instructions or guidelines provided by CFL; or
      (iii) any use of any Materials otherwise than for any application specified on a quote or order form; or
      (iv) the continued use of any Materials after any defect becomes apparent or would have become apparent to a reasonably prudent operator or user; or
      (v) fair wear and tear, any accident or act of God.
      (b) the warranty shall cease and CFL shall thereafter in no circumstances be liable under the terms of the warranty if the workmanship is repaired, altered or overhauled without CFL’s consent.
      (c) in respect of all claims CFL shall not be liable to compensate the Client for any delay in either replacing or remedying the workmanship or in properly assessing the Client’s claim.
    3. For Materials not manufactured by CFL, the warranty shall be the current warranty provided by the manufacturer of the Materials. CFL shall not be bound by nor be responsible for any term, condition, representation or warranty other than that which is given by the manufacturer of the Materials.
    4. In the case of second hand Materials, the Client acknowledges that full opportunity to inspect the same has been provided and accepts the same with all faults and that no warranty is given by CFL as to the quality or suitability for any purpose and any implied warranty, statutory or otherwise, is expressly excluded. CFL shall not be responsible for any loss or damage to the Materials, or caused by the Materials, or any part thereof however arising.
  20. Consumer Guarantees Act 1993
    1. If the Client is acquiring Materials 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 Materials by CFL to the Client.
  21. Intellectual Property
    1. Where CFL has designed, drawn, written plans or a schedule of Works, or created any products for the Client, then the copyright in all such designs, drawings, documents, plans, schedules and products shall remain vested in CFL, and shall only be used by the Client at CFL’s discretion. Under no circumstances may such designs, drawings and documents be used without the express written approval of CFL.
    2. The Client warrants that all designs, specifications or instructions given to CFL will not cause CFL to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify CFL against any action taken by a third party against CFL in respect of any such infringement.
    3. The Client agrees that CFL may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings, plans or products which CFL has created for the Client.
  22. Default and Consequences of Default
    1. Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at CFL’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
    2. If the Client owes CFL any money the Client shall indemnify CFL from and against all costs and disbursements incurred by CFL in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, CFL’s collection agency costs, and bank dishonour fees).
    3. If the Client owes CFL any money the Client shall indemnify CFL from and against all costs and disbursements incurred by CFL in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, CFL’s collection agency costs, and bank dishonour fees).
    4. Without prejudice to CFL’s other remedies at law CFL shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to CFL shall, whether or not due for payment, become immediately payable if:
      (a) any money payable to CFL becomes overdue, or in CFL’s opinion the Client will be unable to make a payment when it falls due;
      (b) the Client has exceeded any applicable credit limit provided by CFL;
      (c) the Client becomes insolvent or bankrupt, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
      (d) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.
  23. Cancellation
    1. Without prejudice to any other rights or remedies CFL may have, if at any time the Client is in breach of any obligation (including those relating to payment and/or failure to remedy any breach in respect of this Contract within ten (10) working days of receipt by the Client of such notice/s) then CFL may suspend the Works immediately. CFL will not be liable to the Client for any loss or damage the Client suffers because CFL has exercised its rights under this clause.
    2. CFL may cancel any contract to which these terms and conditions apply or cancel delivery of Works at any time before the Works are commenced by giving written notice to the Client. On giving such notice CFL shall repay to the Client any sums paid in respect of the Price, less any amounts owing by the Client to CFL for Works already performed. CFL shall not be liable for any loss or damage whatsoever arising from such cancellation.
    3. In the event that the Client cancels the delivery of Works the Client shall be liable for any and all loss incurred (whether direct or indirect) by CFL as a direct result of the cancellation (including, but not limited to, any loss of profits).
    4. Cancellation of orders for products made to the Client’s specifications, or for non-stocklist items, will definitely not be accepted once production has commenced, or an order has been placed.
  24. Privacy Policy
    1. All emails, documents, images or other recorded information held or used by CFL is Personal Information as defined and referred to in clause 24.3 and therefore considered confidential. CFL acknowledges its obligation in relation to the handling, use, disclosure and processing of Personal Information pursuant to the Privacy Act 1993 (“the Act”) including Part II of the OECD Guidelines and as set out in Schedule 5A of the Act and any statutory requirements where relevant in a European Economic Area “EEA” then the EU Data Privacy Laws (including the General Data Protection Regulation “GDPR”) (collectively, “EU Data Privacy Laws”). CFL acknowledges that in the event it becomes aware of any data breaches and/or disclosure of the Clients Personal Information, held by CFL that may result in serious harm to the Client, CFL will notify the Client in accordance with the Act and/or the GDPR. Any release of such Personal Information must be in accordance with the Act and the GDPR (where relevant) and must be approved by the Client by written consent, unless subject to an operation of law.
    2. Notwithstanding clause 24.1, privacy limitations will extend to CFL in respect of Cookies where transactions for purchases/orders transpire directly from CFL’s website. CFL agrees to display reference to such Cookies and/or similar tracking technologies, such as pixels and web beacons (if applicable), such technology allows the collection of Personal Information such as the Client’s:
      (a) IP address, browser, email client type and other similar details;
      (b) tracking website usage and traffic; and
      (c) reports are available to CFL when CFL sends an email to the Client, so CFL may collect and review that information (“collectively Personal Information”)
      In order to enable / disable the collection of Personal Information by way of Cookies, the Client shall have the right to enable / disable the Cookies first by selecting the option to enable / disable, provided on the website prior to proceeding with a purchase/order via CFL’s website.
    3. The Client authorises CFL or CFL’s agent to:
      (a) access, collect, retain and use any information about the Client;
      (i) (including, name, address, D.O.B, occupation, driver’s license details, electronic contact (email, Facebook or Twitter details), medical insurance details or next of kin and other contact information (where applicable), previous credit applications, credit history or any overdue fines balance information held by the Ministry of Justice) for the purpose of assessing the Client’s creditworthiness; or
      (ii) for the purpose of marketing products and services to the Client.
      (b) disclose information about the Client, whether collected by CFL from the Client directly or obtained by CFL 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 the Client.
    4. Where the Client is an individual the authorities under clause 24.3 are authorities or consents for the purposes of the Privacy Act 1993.
    5. The Client shall have the right to request CFL for a copy of the Personal Information about the Client retained by CFL and the right to request CFL to correct any incorrect Personal Information about the Client held by CFL.
  25. Suspension of Works
    1. Where the Contract is subject to the Construction Contracts Act 2002, the Client hereby expressly acknowledges that:
      (a) CFL has the right to suspend work within five (5) working days of written notice of its intent to do so if a (i) payment claim is served on the Client, and:
      the payment is not paid in full by the due date for payment in accordance with clause 6.5 and/or any subsequent amendments or new legislation and no payment schedule has been given by the Client; or
      (ii) a scheduled amount stated in a payment schedule issued by the Client in relation to the payment claim is not paid in full by the due date for its payment; or
      (iii) the Client has not complied with an adjudicator’s notice that the Client must pay an amount to CFL by a particular date; and
      (iv) CFL has given written notice to the Client of its intention to suspend the carrying out of construction work under the construction Contract.
      (b) if CFL suspends work, it:
      (i) is not in breach of Contract; and
      (ii) is not liable for any loss or damage whatsoever suffered, or alleged to be suffered, by the Client or by any person claiming through the Client; and
      (iii) is entitled to an extension of time to complete the Contract; and
      (iv) keeps its 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.
      (c) if CFL exercises the right to suspend work, the exercise of that right does not:
      (i) affect any rights that would otherwise have been available to CFL under the Contract and Commercial Law Act 2017; or
      (ii) enable the Client to exercise any rights that may otherwise have been available to the Client under that Act as a direct consequence of CFL suspending work under this provision;
      (d) due to any act or omission by the Client, the Client effectively precludes CFL from continuing the Works or performing or complying with CFL’s obligations under this Contract, then without prejudice to CFL’s other rights and remedies, CFL may suspend the Works immediately after serving on the Client a written notice specifying the payment default or the act, omission or default upon which the suspension of the Works is based. All costs and expenses incurred by CFL as a result of such suspension and recommencement shall be payable by the Client as if they were a variation.
    2. If pursuant to any right conferred by this Contract, CFL suspends the Works and the default that led to that suspension continues un-remedied subject to clause 23.1 for at least ten (10) working days, CFL shall be entitled to terminate the Contract, in accordance with clause 23
  26. Service of Notices
    1. Any written notice given under this Contract shall be deemed to have been given and received:
      (a) by handing the notice to the other party, in person;
      (b) by leaving it at the address of the other party as stated in this Contract;
      (c) by sending it by registered post to the address of the other party as stated in this Contract;
      (d) if sent by facsimile transmission to the fax number of the other party as stated in this Contract (if any), on receipt of confirmation of the transmission;
      (a) if sent by email to the other party’s last known email address.
    2. Any notice that is posted shall be deemed to have been served, unless the contrary is shown, at the time when by the ordinary course of post, the notice would have been delivered.
  27. Trusts
    1. If the Client at any time upon or subsequent to entering in to the Contract is acting in the capacity of trustee of any trust (“Trust”) then whether or not CFL may have notice of the Trust, the Client covenants with CFL as follows:
      (a) the Contract extends to all rights of indemnity which the Client now or subsequently may have against the Trust and the trust fund;
      (b) the Client has full and complete power and authority under the Trust to enter into the Contract and the provisions of the Trust do not purport to exclude or take away the right of indemnity of the Client against the Trust or the trust fund. The Client will not release the right of indemnity or commit any breach of trust or be a party to any other action which might prejudice that right of indemnity;
      (c) the Client will not without consent in writing of CFL (CFL will not unreasonably withhold consent), cause, permit, or suffer to happen any of the following events:
      (i) the removal, replacement or retirement of the Client as trustee of the Trust;
      (ii) any alteration to or variation of the terms of the Trust;
      (iii) any advancement or distribution of capital of the Trust; or
      (iv) any resettlement of the trust property.
  28. General
    1. Any dispute or difference arising as to the interpretation of these terms and conditions or as to any matter arising hereunder, shall be submitted to, and settled by, either adjudication in accordance with the Construction Contracts Act 2002 and/or by arbitration in accordance with the Arbitration Act 1996 or its replacement(s).
    2. The failure by either party to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect that party’s 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.
    3. These terms and conditions and any contract to which they apply shall be governed by the laws of New Zealand and are subject to the jurisdiction of the courts of Tauranga in New Zealand.
    4. CFL shall be under no liability whatsoever to the Client for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by CFL of these terms and conditions (alternatively CFL’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Works).
    5. CFL may licence and/or assign all or any part of its rights and/or obligations under this Contract without the Client’s consent.
    6. The Client cannot licence or assign without the written approval of CFL.
    7. CFL may elect to subcontract out any part of the Works but shall not be relieved from any liability or obligation under this Contract by so doing. Furthermore, the Client agrees and understands that they have no authority to give any instruction to any of CFL’s sub-contractors without the authority of CFL.
    8. The Client agrees that CFL may amend their general terms and conditions for subsequent future contracts with the Client by disclosing such to the Client in writing. These changes shall be deemed to take effect from the date on which the Client accepts such changes, or otherwise at such time as the Client makes a further request for CFL to provide Works to the Client.
    9. 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.
    10. Both parties warrant that they have the power to enter into this Contract and have obtained all necessary authorisations to allow them to do so, they are not insolvent and that this Contract creates binding and valid legal obligations on them.

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