Acceptance
1.1 Engaging the Contractor to carry out Work or acceptance of a Quote provided by the Contractor constitutes acceptance by the Client of these terms. These terms will apply to all services provided by the Contractor (unless otherwise agreed in writing).
2. Contractor responsibilities
2.1 The Contractor will:
a) carry out the Work with reasonable skill and care, in accordance with the plans and specifications (if any), the Building Act 2004, the Building Code and any building consents issued in respect of the Work; and
b) comply with all health and safety legislation in carrying out the Work, including having all appropriate site documentation carried out and checked on a regular basis.
3. Client responsibilities
3.1 Unless otherwise agreed in writing, the Client is responsible for:
a) ensuring that all plans and specifications supplied to the Contractor in respect of the Works are accurate;
b) providing any materials, plant, and equipment required for the Work expressed to be ‘client supplied’ or ‘owner supplied’, and ensuring that such materials comply with the Building Code and are fit for purpose, and all plant and equipment complies with all health and safety legislation, codes and requirements;
c) surveying the Site and advising the Contractor of boundaries and the specific location of underground utilities;
d) ensuring that it has sufficient title or other legal entitlement to the Site to allow the Work to be carried out, and that the Contractor has sufficient access to the Site to carry out the Work;
e) advise the Contractor of any particular hazards relating to the Site, and take all practicable steps to ensure the Client’s own safety throughout the Work and cooperate fully in implementing the Contractor’s health and safety and environmental policies and procedures and obligations under the relevant health and safety legislation;
f) ensuring that it has sufficient funds or finance to meet its financial obligations when they fall due (and the Contractor may at any time (whether before or after the Start Date) require that proof of such funds or finance is provided); and
g) obtaining all necessary consents for the Work (including for any Variations) and for obtaining a code compliance certificate (if required) when the Work is complete. (To enable the Contractor to comply with its obligations above, the Contractor may require that the Client provides it a copy of all necessary consents before commencing the Work or any Variation.)
4. Start Date and Completion Date
4.1 Subject to receiving sufficient access as set out above, the Contractor will commence the Work on the Start Date, and complete the Work by the Completion Date, in each case subject to any extensions of time to which it is entitled under clause 8.
5. Payment
5.1 Invoices will be submitted on certain milestones as set out in the Quote. If milestones are not provided for in the Quote, the Contractor will issue invoices on a regular basis. If the Work is delayed or suspended for any reason outside the Contractor’s control, it may render an invoice at the time a relevant milestone would otherwise have been achieved. Invoices become a receipt on payment in full.
5.2 All payments are to be made within 7 days after the date of the invoice. Payments are to be made by electronic funds transfer to the Contractor’s nominated account unless agreed otherwise.
5.3 Any amount which is not paid within due will incur interest at the rate of 2% per month compounding daily on the outstanding balance (both before or after any judgement, and in addition to any other rights and remedies). The Contractor also reserves the right to claim the costs of collecting any debt.
5.4 If the Quote provides for a deposit, and the deposit is not paid in full 7 days before the Work is due to start, the Contractor may without further notice cancel the contract for the Work, and such cancellation is without prejudice to any other rights and remedies.
5.5 The Contractor reserves the right to invoke the Construction Contracts Act 2002 (CCA) in respect of any services pursuant to these terms to which the CCA may apply.
5.6 If an invoice is rendered in accordance with the payment claim provisions in the CCA, the Client is to provide a payment schedule which complies with the requirements of the CCA to the Contractor within 3 Working Days of service of the payment claim. If a payment claim is not provided within this period, the Client is liable to pay the whole amount of the payment claim and cannot dispute any sum in that payment claim.
6. Variations
6.1 The Client may request variations to the Work. With the exception of the Variations set out in clause 6.3, all variations must be in writing and contain the following:
a) A description of the work required under the Variation;
b) Any required amendments to the consents as issued or any additional approvals, consents or licences that will be required;
c) Any agreed adjustment to the Contract Price and/or the Completion Date for the Work.
6.2 Unless otherwise agreed, the Client may not request a Variation omitting or reducing the Work to be performed.
6.3 The Contractor is entitled to claim a Variation for:
a) any emergency works required for health and safety or environmental reasons;
b) additional work and/or changes to the Work caused by any consent requirements;
c) unforeseen physical conditions, substitutions of any materials, wages and price changes; or
d) any increase in costs arising from a failure or delay on the Client’s part in complying with these terms.
e) No allowances have been made in the Contract Price for the handling of hazardous substances (including asbestos), and the Contractor is also entitled to claim a Variation for any such costs.
6.4 All Variations claimed under clause 6.3 shall be calculated at the hourly rate set out in the Quote (and if no rate is stated, then $ Enter Amount), the cost of all materials, plus a margin of Enter %%.
7. Subcontractors: The Contractor may sublet the whole or any portion of the Work. The Contractor will be responsible for all work of its subcontractors and for ensuring that subcontractors have appropriate insurance in place.
8. Delay and extensions of time
8.1 The Contractor shall not be liable for any delay in carrying out the Work due directly or indirectly to circumstances reasonably outside its control, including disputes with subcontractors, bad weather, force majeure, accidents, fire, shortage of labour and/or materials, labour disputes, variations, failure of suppliers to deliver, or acts of any government, territorial authority or similar body.
8.2 If an extension of time is required to the Completion Date due to any of the above reasons above or any other reason beyond the Contractor’s reasonable control, the Contractor shall provide written notice to the Client of any such extension reasonably promptly after the delay becomes apparent, together with details of the new Completion Date.
9. Insurance
9.1 The Client is responsible for insuring the Work (and the Contractor may at any time require that proof of such insurance is provided). The Contractor will arrange public liability insurance up to $ Enter Amount against liability for loss or damage to any property, or injury or death or illness which arises from carrying out the Work.
10. Defects Warranty
10.1 If the Work relates to a household unit, the Client may give notice of any defect within 12 months of completion of the Work, and the Contractor will remedy those defects within a reasonable time of notification. The Client must notify the Contractor in writing of the defect as soon as possible after the defect becomes apparent.
10.2 The Contractor is not liable for any defect within reasonable tolerances, for any defect caused by or arising out of the actions of any person outside the Contractor’s control, fair wear and tear, or failure to maintain the Work.
10.3 These terms do not limit the implied warranties as set out in s362I to s362K of the Building Act 2004.
11. Suspension and termination
11.1 The Contractor may suspend the Work by notice if the Client defaults in any of its obligations under these terms, including failing or refusing to pay any invoiced amount in full by the due date for its payment. Such suspension is without prejudice to any other right to which the Contractor might be entitled.
11.2 The Contractor may terminate its obligations under these terms if at any time the Client becomes bankrupt, goes into liquidation, or has a receiver or statutory manager appointed, or defaults in its obligations under these terms and does not remedy that default within 5 Working Days of receiving a notice requiring remedy.
12. Contractor property on Site
12.1 The Client acknowledges that:
a) the legal, equitable and beneficial ownership and title to any plant, equipment or materials brought
onto the Site by the Contractor remains vested in the Contractor at all times;
b) title in all materials supplied as part of the Work remains vested in the Contractor until all amounts owing to the Contractor have been paid in full.
12.2 To secure such obligations, for the purposes of the Personal Property Securities Act 1999 (PPSA), the Client agrees that a security
interest is granted of the property described in clause 12.1 (and all
proceeds of that property). All payments received may be applied by the Contractor in such manner as is desirable to preserve any purchase
money security interest in that property. The Client agrees that nothing in section 116, 120(2), 121, 125 to 127, 129, 131, 133 and 134 of
the PPSA applies, and waive the right to receive a verification statement in respect of any security interest.
13. Limitation on liability
13.1 In addition to the other provisions relating to liability in these terms, the Contractor shall have no liability to the Client other than in relation to direct reasonably foreseeable losses incurred by the Client as a result of the Contractor’s breach of these terms of the Quote. The Contractor is not liable for any loss, liability or costs incurred by or any injuries suffered by the Client or any other person which are an unavoidable result of carrying out the Works or remedying any defects in accordance with these terms.
13.2 Other than in relation to defects in the Works as referred to in clause 10.1, the Client is to lodge any claims with the Contractor within 3 months of the date of the relevant part of the Works otherwise any such claim will be regarded as invalid. Any claim submitted must be sufficiently detailed so as to clearly identify what aspect of the Works is defective.
14. Signage
14.1 The Client agrees that the Contractor has the right to erect signage on the Site advertising itself during the period of the Work.
15. Notices
15.1 All notices are to be in writing and hand delivered or sent by post or email to the addresses set out in the Quote. The address for service and postal address for the Contractor is the physical address set out in the Quote.
15.2 A notice is deemed to be received:
a) if personally delivered, when delivered; or
b) if posted, 5 working days after posting; or
c) if sent by fax, on production of a transmission report (by the machine from which the fax was sent) that indicates that the fax was sent in its entirety; or
d) if sent by email, when the email leaves the sender’s communications system, provided that the sender:
i) does not receive any error message relating to the sending of the email; or
ii) receives confirmation that the email was delivered (which may include an automated delivery receipt from the recipient’s communications system).
15.3 Despite clause 15.2, any notice received after 5pm, or received on a day that is not a Working Day, is deemed not to have been received until 9am on the next Working Day.
16. Dispute Resolution
16.1 If there is any dispute relating to these terms or the Work, the party raising the dispute must give the other party written notice specifying particulars of the dispute.
16.2 If negotiations between the parties do not resolve the dispute, either party may refer a dispute to adjudication under the CCA or bring a claim before the Disputes Tribunal or the High Court, as appropriate.
17.Definitions
In these terms:
