Terms-of-Trade - Deluxe Plumbing & Gas 2024




    1.1. If applicable, capitalised terms have the meaning given to them in this  Agreement. In addition, the following definitions apply in this Agreement: 1.2. ‘Contractor,’ ‘we’, or ‘us’ means Deluxe Plumbing & Gas Limited trading  as Deluxe Plumbing & Gas (our successors and assigns) or any person  acting with the authority of Deluxe Plumbing & Gas Limited. 1.3. ‘Client,’ ‘you’, or ‘your’ means the Client purchasing Materials or Services  from us or any person acting on your behalf (including authorised  agents). 

    1.4. ‘Services’ means all Services provided to you (including any plumbing,  gas fitting, drain laying, installation or maintenance of septic or solar  systems and the provision of Materials) as specified in any  documentation or otherwise provided under this Agreement. 

    1.5. ‘Worksite’ means the address or location you nominate for us to provide  the Materials or Services. 

    1.6. ‘Materials’ means all Materials required to complete the Services. 1.7. ‘Price’ means the Price of the Services (in accordance with clause 6). 1.8. ‘Agreement’ means these terms & conditions of trade, as may be amended from time to time (including our privacy policy and any orders,  purchases or schedules as applicable). 

    1.9. ‘Amounts Owing’ means any amount owed by you to us, from time to  time, including the Price, any interest payable, any of your liability under  this Agreement and any enforcement expenses incurred by us in seeking  payment of any Amounts Owing by you. 

    1.10.‘Business Day’ means Monday to Friday, excluding public holidays in  New Zealand. 

    1.11.‘Confidential Information’ means all information that could be reasonably  regarded in the circumstances as confidential, including information that  relates to the business, interests or affairs of a party, this Agreement, the  Materials or Services (as applicable), and intellectual property rights, but  excludes information which is: 

    (a)in the public domain, other than as a result of a breach of this  Agreement; 

    (b)in the possession of a party prior to the commencement of this  Agreement without any obligation of confidentiality; and 

    (c)is independently developed or acquired by a party before the  commencement of this Agreement without relying on information that  would itself be Confidential Information. 

    1.12.‘Event of Default’ means failure to comply with this Agreement (including  your obligations in clause 6). 

    1.13.‘Insolvency Event’ means an event of insolvency or bankruptcy,  including: (i) the appointment of an insolvency administrator, manager,  receiver or liquidator; (ii) any action related to winding up or making a  material arrangement in relation to creditors; (iii) applying for any type of  protection against creditors; (iv) being unable to pay your debts as they  fall due; or (v) taking or suffering any similar or analogous action in any  jurisdiction as a consequence of debt. 

    1.14.‘Personnel’ means directors, officers, employees, agents and  contractors. 

    1.15.‘CCLA’ means the Contract and Commercial Law Act 2017.

    1.16.‘PPSA’ means the Personal Property Securities Act 1999.

    1.17.‘CCA’ means the Construction Contracts Act 2002. 

    1.18.‘Security Agreement’ and ‘Security Interest’ have the meanings given to  them in Part 2, sections 16 and 17 of the PPSA. 

    1.19.‘Regulator’ means any authority, commission, government department,  court, tribunal, or similar having regulatory or supervisory authority over  the parties or Services. 

    1.20.‘Related Company’ has the meaning given to it in Part 1, section 2(3) of  the Companies Act 1993. 


    2.1. In this Agreement, unless the context otherwise requires: (a)headings are for convenience only and do not affect interpretation; (b)a reference to legislation includes all regulations, orders, instruments,  

    codes, guidelines or determinations issued under that legislation or  any modification, consolidation, amendment, re-enactment,  replacement or codification of it; 

    (c)a reference to ‘in writing’ includes by email; 

    (d)the words ‘include’ or ‘including’ or similar expressions are to be  construed without limitation; 

    (e)a reference to a party shall include that party’s successors, permitted  assigns and substitutes; and 

    (f) a word importing the singular includes the plural and vice versa. 


    3.1. All orders are subject to our acceptance. We may (at our sole discretion) accept any order in whole or part by issuing an invoice in respect of the applicable Services, delivering the Materials or Services or otherwise confirming the order in writing.

    3.2. You acknowledge and accept that: 

    (a)the supply of Materials on credit shall not take effect until you have  completed a credit application with us and it has been approved with a  credit limit established for the account; 

    (b)if the supply of Materials requested exceeds your credit limit or the  account exceeds the payment terms, we reserve the right to refuse  further delivery; 

    (c)where necessary, this Agreement will be modified or amended to the  extent required to comply with any applicable legislation; and (d)this Agreement shall supersede any other document or agreement  between both parties. 

    3.3. If you place an order for or accept any Services from us, you are taken to  accept this Agreement and are bound jointly and severally (including if  you are part of a trust, in which case you shall be bound in your capacity  as a trustee). You do not need to sign any formal documentation to  indicate your acceptance. It will be assumed from you continuing to order  any Materials or Services. 

    3.4. Your acceptance of this Agreement shall continue to all future orders,  purchases or schedules (as applicable), and this Agreement will be, or is  deemed to be incorporated into, and form part of, each order, purchase  or schedule as if this Agreement was set out or implied therein in full. 

    3.5. Both parties shall accept electronic signatures (including acceptance by  a receiving mail server) provided both parties have complied with  sections in Part 4, subpart 3 and all other relevant sections in Part 4 of  the CCLA. 


    4.1. We are under no obligation to enquire as to the authority of any person  placing an order on your behalf. 

    4.2. If you introduce any third party to us as your authorised agent, you agree  that the agent shall have your full authority to order any Services on your  behalf, and such authority shall continue until the Services have been  completed or you notify us in writing that the third party is no longer your  authorised agent. 

    4.3. Where your authorised agent is to have only limited authority to act on  your behalf, you must explain the parameters of the limited authority to  us in writing. 


    5.1. You agree that you will give us (addressed to the financial controller or  equivalent) not less than fourteen (14) days prior written notice of any  proposed change to your name or any other changes to your details  (including changes to the ownership of the company, address, email,  contact phone or business structure). 

    5.2. You acknowledge and accept that if you fail to comply with clause 5.1,  you will breach this Agreement and shall be liable for any expense or  loss of profit suffered by us (including any Related Company). 


    6.1. You will pay us the Price set out in any quotation or documentation that  we provide to you under this Agreement, plus any ‘Goods and Services  Tax’ (as defined and imposed in Part 2, section 8(1) of the Goods and  Services Tax Act 1985 (GST)).  

    6.2. Unless otherwise agreed by us in writing, the Price shall be:

    (a)indicated on invoices provided to you in respect of the Services; or

    (b)our estimated Price (subject to clause 7), with the final Price being  ascertained upon completion of the Services (and any variances in the  estimated Price of more than ten percent (10%) will be subject to your  approval before we proceed with any further Services); or 

    (c)our quoted Price, which will be binding, subject to your acceptance of  our quotation in writing within seven (7) days. 

    6.3. If the Price is not set out in quotations or other documentation, the Price  for the relevant Materials or Services will be at our standard rate  according to our current Price list or at a rate notified to you. 

    6.4. The Price will be payable by you on the date(s) determined by us (at our  sole discretion), which may be: 

    (a)on delivery of the Materials or completion of the Services;

    (b)by way of progress payments in accordance with our agreed progress  payment schedule, and such progress payment claims may include  the value of any authorised variations and the value of any Materials  that have been delivered to the Worksite (whether installed or not);

    (c)due twenty (20) days following the end of the month in which a  statement or invoice is sent to your address or address for notices; or (d)seven (7) days following the date of any invoice given to you by us if  there is no notice to the contrary.   

    6.5. No allowance has been made in the Price for the deduction of retentions.  If retentions are made, we reserve the right to treat all retentions as  placing your account into default. 

    6.6. Where we pay any subcontractor’s account on your behalf, you agree to  reimburse us for the payment of the subcontractor’s account within seven  (7) days (unless otherwise agreed in writing). 

    6.7. We reserve the right at any time to alter any Price lists. Any alterations to  any Price list will be effective from the date specified by us and apply to  all orders or purchases we accept on or after that date. 

    6.8. Payment may be made by cash, electronic/online banking, or any other  method we agree to in writing. 

    6.9. Payment in any form other than cash shall not be taken to be payment  for the Amounts Owing, and all ownership rights of the Materials or  Services remain with us until that form of payment has been cleared and  received (in accordance with clause 17.1). 

    6.10.We may require that you pay a deposit or provide a guarantee as  security for paying any Amounts Owing. 

    6.11.You shall not withhold payment of any Amounts Owing because part of  the Services are disputed, and if part of the Services is disputed, you  agree that you will: 

    (a)perform all of your obligations to us under this Agreement and pay in  full any Amounts Owing except for the amount that is in dispute; and (b)provide a specific and detailed explanation of the dispute in writing  within seven (7) days from delivery. 

    6.12.If an Insolvency Event occurs, all Amounts Owing will (whether or not  due for payment) immediately become due and payable. 


    7.1. We reserve the right to change the quoted Price if: 

    (a)any information supplied by you is inaccurate; 

    (b)you request any change to plans, specifications or the Services that  were initially quoted; 

    (c)additional Services are required due to hidden or unseen  complications that are discovered after the commencement of the  Services (including prerequisite work done by a third party that is  incomplete or not up to standard, faults found upon disassembling the  equipment or the premises (such as covered components, pipes or  wires behind walls), barriers obstructing access (including hard rock or  metal below the surface), the presence of asbestos or other health  and safety considerations); or 

    (d)the cost of labour or Materials increases due to changes beyond our  control (including any taxes imposed by any Regulator, overseas  transactions that may increase due to variations in foreign currency  rates of exchange or international freight and insurance charges). 

    7.2. The Price will be adjusted to reflect any extra cost or expense we incur  due to any instruction received from you (or your authorised agent) or  any action or inaction on your part. 

    7.3. You agree that where earthmoving or excavation work has been provided  by a third party (you have engaged) and such work is found to be  defective or not up to standard, we reserve the right to charge a variation  to remedy such work. 

    7.4. Where you request us to estimate the quantity of the Materials to be  supplied from sketches, plans, schedules, specifications or otherwise,  you agree to pay for any variation between the estimate and the actual  quantities provided, and this Agreement shall be deemed to be adjusted  accordingly to reflect the increased Price. 


    8.1. We will deliver the Materials or Services to the delivery location that we  each agree to in writing, and if the delivery location is at your premises  (subject to clause 26), you will provide us (and our Personnel) with  suitable access to the premises, together with any amenities we (or our  Personnel) reasonably require to perform delivery of the Materials or  Services. 

    8.2. You accept that the supply of Materials for accepted orders may be  subject to availability, and if, for any reason, Materials are not or cease to  be available, we reserve the right to substitute comparable Materials (or  components of the Materials) and vary the Price (in accordance with  clause 7). In all such cases, we will notify you in advance of any such  substitution and reserve the right to place your order on hold until both  parties agree to such changes. 

    8.3. Our responsibility is to ensure that the Services start as soon as  possible. However, the Services commencement date will be postponed,  and the completion date will be extended by whatever time is reasonable  if the provision of the Services is delayed by any event beyond our  control, including: 

    (a)poor weather conditions affecting the commencement date; or 

    (b)your failure to obtain the required consents, have the Worksite ready  or make a selection of Materials required to complete the Services. 

    8.4. If we cannot supply the Services as agreed solely due to any action or  inaction of you, then we shall be entitled to charge a reasonable fee for  the re-supplying of Services at a later time and date (including storage of  the Materials if applicable). 

    8.5. If we are required to provide the Services urgently, which may require us  to work outside regular business hours (including working through lunch  breaks, weekends or public holidays), we reserve the right to charge  additional costs unless otherwise agreed between the parties.  

    8.6. Any time specified by us for delivery of the Materials is an estimate only,  and we will not be liable for any expenses or losses incurred due to your  reliance on our estimated time for delivery, nor can you cancel any order  for any delay in delivery that is less than fourteen (14) days after our  estimated time for delivery (or any delay in delivery due to any event  beyond our control). 

    8.7. We may deliver the Materials in separate instalments, which will be  invoiced and paid as individual transactions. 


    9.1. You agree that we have no liability regarding any errors or omissions: (a)resulting from any inadvertent mistake made in the formation or  administration of this Agreement; or 

    (b)contained in any documentation supplied to you regarding the  Services. 

    9.2. If such an error or omission occurs that is not attributable to our  negligence or wilful misconduct, all obligations or rights under or in  connection with this Agreement shall continue in full force and effect. 

    1. DEFECTS  

    10.1.You shall inspect all Materials or Services immediately on delivery and  shall notify us of any alleged defect, shortage in quantity, damage or any  other issue within seven (7) days from the date of delivery.  

    10.2.If you do not notify us within the seven (7) day timeframe (in accordance  with clause 10.1), the Materials or Services shall be presumed to be free  of defects, and we will consider all Materials or Services to be supplied  free from any defect or other issue (subject to clause 14.1). 

    10.3.You shall allow us to inspect the Materials or Services within fourteen  (14) days (from the date of delivery) if you believe the Materials or  Services are defective. 


    11.1.Return of the Materials will only be accepted (at our sole discretion)  provided that: 

    (a)the Materials are returned to us within seven (7) days of the delivery  date; 

    (b)we have agreed in writing to accept the return of the Materials; (c)the Materials are returned in the condition in which they were received  (including all packaging material, brochures and any instructions in as  new condition as is reasonably possible); 

    (d)we will not accept the return of Materials that have not been stored or  used correctly; and 

    (e)the return of any Materials for credit may incur a restocking fee of  twenty-five percent (25%) of the value of the Materials (and any  additional freight costs we incur). 

    11.2.Subject to the conditions of the warranty set out in clause 11.3, we  warrant that if any defect in any of our workmanship becomes apparent  and is reported to us within twelve (12) months from the date of delivery  (time being of the essence), we will either (at our sole discretion) replace  or remedy the defect. 

    11.3.The conditions applicable to the warranty given under clause 11.2 are: (a)the warranty shall not cover any defect or damage which may be  caused by or arise through: (i) failure on your part to properly maintain  any Materials or Services; (ii) failure on your part to follow any  instructions or guidelines we provide; (iii) any use of the Materials or  Services for any purpose other than the appropriate applications  specified on the quote, invoice or any other documentation supplied to  you; (iv) the continued use of any Materials or Services after any  defect becomes apparent (or would have become apparent to a  reasonably competent operator); (v) fair wear and tear; or (vi) any  accident or act of God; 

    (b)we shall not be liable to compensate you for any delay in remedying  the defect or in properly assessing your claim regarding the defective  Services; and 

    (c)the warranty shall cease, and we shall in no circumstances be liable if  the defect is repaired, altered or overhauled by any third party without  our consent. 

    11.4.For Materials not manufactured by us, the warranty shall be the current  warranty provided by the manufacturer of the Materials, and we shall not  be bound by any condition, representation or warranty other than that  which the manufacturer of the Materials offers.  

    1. PRIVACY ACT 2020  

    12.1.You authorise us (and our agents) to collect, use, retain and disclose  ‘personal information’ (as defined in Part 1, section 7 of the Privacy Act  2020) about you and your Personnel that you or they provide to us for  the following purposes: 

    (a)exercising our rights or performing our obligations under this  Agreement; 

    (b)using the services of credit reporting and debt collection agencies, and  you consent to us disclosing personal information (including any  information about an Event of Default or repayment history) to a credit  reporter, who may hold that information and use it to provide its credit  reporting services; 

    (c)registering any Security Interest under this Agreement;  

    (d)direct marketing purposes (including by email and other electronic  means), unless you notify us that you do not wish to receive direct  marketing from us; and 

    (e)the use or transfer of personal information to a Related Company in  connection with the performance of our obligations or exercise of our  rights under this Agreement. 

    12.2.Clause 12.1 is consent from you in accordance with sections in Part 3  and all other relevant sections in the Privacy Act 2020. 

    12.3.You (if you are an individual) have the right under information privacy  principles 6 and 7, and sections in Part 4, subpart 1 and Part 4, subpart 2  of the Privacy Act 2020 to access, and request correction of, any of your  personal information held by us and if you provide any personal  information about a third party (including your Personnel) to us, you  confirm that you are authorised to do so by the relevant individual, and  you have informed the relevant individual that they have the right to  contact us to access and, if applicable, request correction of any  personal information that we hold about them. 

    12.4.If the Services are expected to involve sharing any data sets or other  personal information, we will enter into a separate data protection  agreement with you. 

    12.5.If you do not provide the personal information requested, we may be  unable to perform our obligations under this Agreement. 


      13.1.Each party must keep confidential all Confidential Information, however,  nothing in clause 13 prevents a party from disclosing Confidential  Information: 

    (a)in the circumstances expressly provided for in this Agreement;

    (b)if the disclosure is required by law or Regulator (but only to the extent  necessary); or 

    (c)if the disclosure is reasonably required to enable a party to perform its  obligations or enforce its rights under this Agreement. 

    13.2.We may disclose Confidential Information to a Related Company and  their Personnel on a ‘need to know’ basis, provided that person is under  a duty to keep the Confidential Information confidential in accordance  with this Agreement. 

    13.3.We own all right, title and interest (including all intellectual property  rights) in the Materials or Services at all times. 

    13.4.Any new intellectual property created as a result of, or in connection  with, the provision of our Materials or Services will be owned by us  (unless otherwise agreed in writing). 

    13.5.If, notwithstanding clauses 13.3 and 13.4, any intellectual property rights  in any of our Materials or Services vests in you, you assign those  intellectual property rights to us with effect from creation and agree to do  all things reasonably required by us to give effect to such assignment. 

    13.6.You warrant that the use by us of any designs, instructions, plans,  specifications or other technical information provided by you will not  infringe the intellectual property rights of any other person and indemnify  us against any expenses or losses (including full legal costs on a solicitor  client-basis) that we may incur or suffer in the event of any such  infringement. 


      14.1.Subject to clause 14.2, nothing in this Agreement will affect any rights  you may have as a ‘consumer’ (as defined under the Consumer  Guarantees Act 1993 (CGA)) under the CGA. 

    14.2.For the purposes of section 2 and Part 5, section 43(2) of the CGA, the  parties acknowledge and agree that if you are acquiring, or hold yourself  out as acquiring, the Materials or Services in trade: 

    (a)to the extent permitted by law, you are contracting out of the CGA (to  the extent that the CGA would otherwise apply to any matters covered  by this Agreement); and 

    (b)it is fair and reasonable for the parties to be bound by clause 14.2. 

    14.3.If you are acquiring the Materials or Services for the purpose of  resupplying the Materials or Services in trade, you undertake that you  will: 

    (a)contract out of the CGA to the maximum extent permitted by law in  your contracts with your clients; and 

    (b)procure that your clients and each person in the distribution chain  thereafter, contract out of the CGA to the maximum extent permitted  by law in their contracts with clients. 

    14.4.For the purposes of section 5D of the Fair Trading Act 1986 (FTA), the  parties acknowledge and agree that if you are acquiring, or hold yourself  out as acquiring, the Materials or Services in trade: 

    (a)to the extent permitted by law, you are contracting out of sections 9,  12A and 13 of the FTA; and 

    (b)it is fair and reasonable for the parties to be bound by clause 14.4. 14.5.You will indemnify us against any expenses or losses incurred by us due  to your breach of clause 14. 


    15.1.We may cancel any Services provided under this Agreement before the  Services are delivered by giving you written notice. On giving you notice,  we shall refund any amounts you have paid and shall not be liable for  any loss or damage arising from such cancellation. If you cancel the  delivery of the Services, you shall be responsible for any loss incurred by  us (including, without limitation, any loss of profits) up to the time of  cancellation. 

    15.2.We shall be entitled to cancel all or part of any order of yours which  remains unperformed, and all Amounts Owing to us shall (whether or not  due) become immediately payable if: 

    (a)any Amounts Owing to us become overdue, or in our opinion, you will  be unable to meet your payments as they fall due; or 

    (b)an Insolvency Event occurs, and you become insolvent or bankrupt,  convene a meeting with your creditors or a liquidator or similar person  is appointed in respect of you or any of your assets. 

    15.3.Orders made to your specifications or non-stock-list items cannot be  cancelled once production has commenced. 


    16.1.Unless waived by us in writing, we may charge interest at a rate of two  and a half percent (2.5%) per calendar month on any outstanding  Amounts Owing from the due date of payment until the date the  outstanding amount is paid (and interest shall compound monthly at such  a rate). 

    16.2.You agree to reimburse us for any fees or expenses we incur in  recovering any Amounts Owing (including, without limitation,  administration fees, debt collection agency fees, disbursements and full  legal costs on a solicitor-client basis).  

    16.3.Should you fail to pay any account, we may withhold the release of any  producer statement, certification, or documentation relating to the  Services provided until all Amounts Owing are paid in full. 


    17.1.Ownership (including all right, title and interest) of the Materials and  Services remains with us until: 

    (a)we have received all Amounts Owing; and 

    (b)you have performed all of your obligations under this Agreement. 17.2.If any Amounts Owing is overdue, or an Insolvency Event occurs, you  give irrevocable authority to us to use reasonable force to enter  anywhere Materials may be stored, to remove any Materials. We shall  not be liable in contract, tort or otherwise for any damages, expenses, or  losses incurred by you or any third party, and you indemnify us against  any liability we may have to any third party (including full legal costs on a  solicitor-client basis), as a result of us exercising our rights under clause  17.2 (except where damages, costs or losses are due to our negligence  or fraud). 

    17.3.If you resell or use any Materials before ownership of the Materials has  passed to you (including combining or processing the Materials), the  proceeds of such sale or use will be received and held by you (in  whatever form) in trust for us to the extent of the Amounts Owing (where  our interest as beneficiary under that trust will be that portion of the  proceeds which is equivalent to the Amounts Owing to us and the  balance of the proceeds (if any) will be your beneficial interest under that  trust). 

    17.4.It is further agreed that: 

    (a)where possible, the Materials shall be kept separate and identifiable  until we have received full payment and you have fulfilled all of your  obligations under this Agreement; and 

    (b)until ownership of the Materials passes to you, we may give notice in  writing to return the Materials (or any accessories or components),  and your rights to obtain ownership or any other interest in the  Materials shall cease. 

    17.5.If any Materials are damaged where full payment has not been received,  you agree that we are entitled to: 

    (a)receive all insurance proceeds paid for the Materials; and

    (b)deal directly with the insurance company to receive all insurance  proceeds paid for the Materials we own (in accordance with clause  17.1). 

    17.6.We may commence proceedings to recover the Price of the Services  provided, notwithstanding that ownership of the Materials or Services has  not passed to you. 


    18.1.Subject to us providing any Materials or Services, you charge all of your  right, title and interest (whether joint or several) in any land, real estate or  other assets capable of being legally charged with a lien, owned by you  either now or in the future, to secure the performance of all obligations  (including full payment of all Amounts Owing) under this Agreement.  

    18.2.You irrevocably appoint all directors of our companies (including any  Related Company) as your true and lawful attorney(s) and agree that the  appointed attorney(s) may perform all necessary acts to enforce our  rights provided in clause 18.1 of this Agreement (including signing any  document on your behalf). 

    18.3.You are liable for all our disbursements and expenses (including full  legal costs on a solicitor-client basis) incurred in exercising our rights  under clause 18 to secure the performance of your obligations under this  Agreement. 

    18.4.In accordance with Part 5, subpart 5 of the CCLA, we hold a lien for  work done and may sell at public auction any property that has been left  by you for Services if any Amounts Owing are outstanding. 

    18.5.It is fair and reasonable for the parties to be bound by clause 18. 


    19.1.You acknowledge and agree that: 

    (a)this Agreement constitutes, in favour of us, a Security Agreement  creating a Security Interest in the Materials or Services or the  proceeds of such Materials or Services; and 

    (b)the Security Interest granted to us secures the payment of all Amounts  Owing (all present and after-acquired personal property) you may owe  us from time to time and at any time. 

    19.2.You agree that you will sign any further documentation and provide any  information which we may reasonably require to ensure we are paid all  Amounts Owing due to us and otherwise to protect our interests under  this Agreement, including by registration of a financing statement and  ensuring that we have a first ranking perfected Security Interest in the  Materials or Services, or a Security Interest in the proceeds of any  Materials or Services (a Security Interest taken in all collateral and any  proceeds of any collateral). 

    19.3.To the extent permitted by law, we each contract out of:

    (a)sections 114(1)(a), 133 and 134 of the PPSA; and 

    (b)your rights referred to in sections 107(2)(a), (c), (d), (e), (f), (g), (h)  and (i) of the PPSA. 

    19.4.You waive your right to receive a verification statement under section  148 of the PPSA regarding any financing statement relating to a Security  Interest. 

    19.5.Nothing in this Agreement is to be construed as an agreement that: (i) a  Security Interest in Materials (collateral) attaches at a later time than the  time specified in Part 3, section 40(1) of the PPSA; (ii) a Security Interest  is perfected in accordance with Part 3, section 41(1) of the PPSA; (iii) a  Security Interest in all after-acquired property attaches at the time  specified in Part 4, section 44(1) of the PPSA; and (iv) a Security Interest  in collateral shall extend to the proceeds as specified in Part 4, section  45(1) of the PPSA. 

    19.6.Each Security Interest is a continuing Security, notwithstanding any  intermediate payments, settlement of accounts or anything else.

    19.7.You must provide us with information and any associated documentation  reasonably requested by us from time to time relating to your financial  status. 

    19.8.If at any time we consider that your financial status is unsatisfactory, we  may require you to grant additional Security Interests as security for the  Amounts Owing, and we may suspend or cancel further supply of  Materials or Services until you have provided such Security Interests. 

    19.9.You shall unconditionally ratify any actions taken by us under clause 19. 


    20.1.It is your responsibility to ensure that: 

    (a)we have clear and free access to the Worksite to deliver the Materials  or undertake the Services. We shall not be liable for any loss or  damage to the Worksite (including damage to pathways, driveways,  concrete, paved tiles or grassed areas) unless due to our negligence;  and  

    (b)access is suitable to accept the weight of laden trucks, front-end  loaders, or other earth-moving equipment as we may deem necessary. 20.2.Inspection of the Worksite during the course of the Services shall be by  appointment only, and we must accompany you at all times when on the  Worksite unless otherwise agreed. 

    20.3.You are responsible for organising temporary fencing to protect the  Worksite from damage or theft if any fencing or other boundary is  removed from the Worksite. 


    21.1.We are not responsible for removing excess Materials or rubbish  (including demolished materials) from the Worksite, and all waste we  generate will be placed in a designated area appointed by you. 

    21.2.Materials we bring to the Worksite, which are surplus at the completion  of Services, will remain our property. 


    22.1.You agree to remove any furniture, furnishings or other property from the  vicinity where the Services will be completed and accept that we shall not  be liable for any damage caused by your failure to remove any property  unless due to our negligence. 

    22.2.You warrant that you have sufficient funds available to honour your  obligations of payment and will, on request, provide us with evidence  verifying such funds through a letter of credit from your banking  institution. 


    23.1.Where we retain ownership of the Materials or Services (in accordance  with clause 17.1), you acknowledge and accept that: 

    (a)if we supply Materials only, all risk for the Materials shall immediately  pass to you on the delivery (by us or our nominated carrier), and you  must insure the Materials on or before delivery; or 

    (b)if we are to supply and install Materials, we shall maintain an  insurance policy for the Services until completion, at which point all  risks shall immediately pass to you. 

    23.2.Any advice, recommendation or information that we provide in relation to  Materials or Services supplied by us is given in good faith, is based on  our knowledge and experience and shall be accepted without liability. 

    23.3.If you have requested us to diagnose a fault that requires investigation,  disassembly or testing, all costs will be charged to you, irrespective of  whether or not the repair goes ahead. 

    23.4.If any piping or components are required to be repositioned at the  request of any third party, you agree to notify us immediately upon any  proposed changes and indemnify us against any additional costs  incurred (and such variations shall be invoiced in addition to the Price in  accordance with clause 7). 

    23.5.If damages are caused by water exceeding existing system capacities  that are beyond our control, you shall be liable for any claims, losses,  damages, costs or expenses however caused or arising with the clean up or any expenses that may be applicable (unless due to our  negligence). 

    23.6.We shall carry out a routine soundness test of the Worksite to ensure  there are no gas leaks in the existing pipework. If we discover any gas  leak, we will (where necessary) have the gas supply turned off until the  fault is found and repaired at your expense (in accordance with clause  7). 

    23.7.You acknowledge that in instances where the gas supply is turned off at  the meter or the bottle to carry out any soundness test, parts within a gas  appliance may fail due to not being turned off and serviced for an  extended period (including thermocouples, blocked pilot tubes, or valves  on pilot assemblies). Any costs associated with any appliance part failure  caused by turning off the gas supply shall be at your expense. 

    23.8.Where we have provided information or figures to you regarding the  performance of the Materials, you accept that these have been given in  good faith and are estimates based on the Energy Efficiency and  Conservation Authority (EECA), the Water Efficiency Labelling and  Standards (WELS) or any information provided by a manufacturer. The  water efficiency may be less than estimated due to factors out of our  

    control (including water pressure, water source or the mineral content of  water based on geographical location). 

    23.9.Where you have supplied Materials for us to complete the Services, you  accept responsibility for the suitability of purpose, quality and any faults  inherent in those Materials, and if (in our opinion) it is believed that the  Materials supplied will not conform to New Zealand regulations, set out  by any Regulator, then we shall be entitled to halt all Services until the  appropriate conforming Materials are sourced (and you will be solely  liable for all additional expenses incurred, which will be invoiced as a  variation to the Services under clause 7). 

    23.10.We may, at our discretion, notify you that we require you to store  Materials or tools necessary for the completion of the Services at the  Worksite, in which case you agree to provide us with a safe area for  storage and shall take all reasonable efforts to protect any Materials or  tools from theft or damage (and the cost of repair or replacement of any  Materials or tools that are stolen or damaged while stored at the Worksite  shall be your responsibility). 

    23.11.You accept that we are only responsible for Materials or Services that  are provided or replaced by us, and we do not accept any responsibility  for previous Services carried out by any third party or for any loss or  damage to the Materials or Services that any other third party causes  after the completion of the Services. 

    23.12.You warrant that any structures to which the Materials are to be affixed  can withstand the installation of the Materials and that any plumbing  connections (including meter boxes, pipes, couplings or valves) are of  suitable capacity to handle the Materials once installed. If, for any  reason, we, or our employees, reasonably form the opinion that your  premises are not safe for the installation of the Materials to proceed  (including the discovery of asbestos, defective plumbing or dangerous  access to crawl spaces), then we shall be entitled to delay the installation  of the Materials until we are satisfied that it is safe to proceed. We may,  at our sole discretion, agree to bring the premises up to a standard  suitable for the installation to proceed, but all additional Services required  shall be treated as a variation (in accordance with clause 7). 

    23.13.You acknowledge that if asbestos or any other toxic substances are  discovered at the Worksite, your responsibility is to ensure safe removal.  You further agree to indemnify us against any costs incurred due to such  discovery. Under no circumstances will we handle removing any  asbestos product unless otherwise agreed by us in writing. 

    23.14.You agree that natural Materials have inherent variations in shade,  colour, texture, surface or finish. While every effort will be made by us  when selecting Materials, we shall not be liable for any variation in  shade, colour, texture, surface or finish between batches of Materials or  between new and existing materials (and if there is any variation, the  Materials and Services will not be considered to contain any defect or  faulty workmanship). 

    23.15.You acknowledge and accept that: 

    (a)all descriptive specifications, illustrations, drawings, data dimensions,  and weights stated in our fact sheets, Price lists, or advertising  material are indicative only and are not to be relied upon; 

    (b)where we have performed temporary repairs: (i) we offer no guarantee  against the reoccurrence of the initial fault or any further damage  caused; and (ii) we will immediately advise you of the fault and shall  provide you with an estimate for the repair; and 

    (c)the Materials supplied may: (i) exhibit variations in shade, tone, colour,  texture, markings, veining, surface and finish (and contain natural  fissures, occlusions, and indentations); (ii) fade or change colour over  time; (iii) expand, contract or distort as a result of exposure to heat,  cold, or weather conditions; (iv) mark or stain if exposed to certain  substances (including those stated by the manufacturer); and (v) be  damaged or scratched by impact. 

    23.16.Should you request us to leave Materials outside our premises for  collection or deliver the Materials to an unattended location, you agree  that those Materials shall be left at your sole risk. 


    24.1.You must precisely locate and mark all unseen or underground services  on the Worksite before any Services are provided (including electrical  services, gas services, sewer services, water mains, telephone cables,  fibre optic cables, or any other services present on the Worksite). Whilst  we will take all care to avoid damage to any underground services, you  agree we are in no way liable for any liability claims, losses, costs, or  fines resulting from damage to services not precisely located and  marked. 

    24.2.If you request us to engage a service locator, this shall be in addition to  the Price (in accordance with clause 7) and ‘dial before you dig’ must be  consulted. 


    25.1.You acknowledge that the presence of plant or tree root growth or other  blockages may indicate damaged pipework. We can offer no guarantee  against reoccurrence or further damage when requested to clear such  blockages. In the event of a collapse during the pipe-clearing process,  we will immediately advise you of the collapse and shall provide you with  an estimate for the complete repair of the damaged pipework. 

    25.2.Installing new pipework or components can cause existing pipework to  fail or become damaged. You agree to indemnify us from all liability if the  existing pipework fails or becomes damaged due to the installation of any  new pipework or components. 


    26.1.Each party will comply with the Health and Safety at Work Act 2015  (HSW Act), including all health and safety duties specified in Part 2 of the  HSW Act and all other applicable standards and codes of practice  relating to health and safety. In addition, each party will comply with the  other party’s pre-notified and reasonable health and safety policies when  on the party’s premises. 

    26.2.You must notify us of any known hazards arising from your premises to  which any person may be exposed, as well as inform us of any notifiable  injury, illness, incident or event (as defined in Part 1, subpart 3 of the  HSW Act) to ensure that your workplace is without risks to the health and  safety of any person. 

    26.3.Each party must consult, cooperate and coordinate activities with all  other persons with a health and safety duty in relation to the same matter  in providing the Materials or Services (including in connection with the  delivery of the Materials or Services). 


    27.1.Where you supply us with any plans, specifications or other technical  information (such as CAD drawings or any other electronic software that  provides detailed plans and specifications), you will be responsible for  providing accurate information, and we shall be entitled to rely on the  accuracy of the information you provide. 

    27.2.We are not responsible for any errors in the Materials or Services or  additional expenses caused by you supplying inaccurate information. 


    28.1.You agree to obtain (at your expense) all approvals, consents and  licences that may be required (including geotechnical data or any other  reports required for the completion of the Services) and, where  applicable: 

    (a)you shall be responsible for applying for and obtaining the Code  Compliance Certificates for the Services; and 

    (b)we shall provide you with all the necessary information so that you  may apply for any Code Compliance Certificates. 

    28.2.Both parties acknowledge and agree to comply with the Building Act  2004 regarding all ‘building work’ (as defined in Part 1, section 7 of the  Building Act 2004) supplied under this Agreement. 


    29.1.If you are a ‘residential occupier’ (as defined in Part 1, section 5 of the  CCA), then you agree that we shall have the right to suspend any  Services by providing five (5) days written notice should a payment claim  be served on you and an Event of Default occurs (in accordance with  section 24A in Part 2, subpart 4 of the CCA). 

    29.2.Should we suspend the Services, it shall not be considered a breach of  this Agreement, and we are not liable for any losses or expenses you  incur due to the suspension of Services under clause 29.1. 

    29.3.In the event the Services are suspended, we shall be entitled to an  extension of time to complete any Services that remain incomplete under  this Agreement, and you agree that: 

    (a)we retain the right to cancel this Agreement whilst the Services are  suspended, and all other rights available to us in this Agreement shall  remain in full force and effect; and 

    (b)we may exercise any rights for payments or adjudication of disputes  under Part 2 and Part 3 of the CCA. 


    30.1.We shall be entitled to engage third party suppliers (including  subcontractors), and you agree that we have the authority to enter into  contracts with such third party suppliers in your name. 

    30.2.If you request and authorise us to arrange the provision of Materials or  Services directly to you by a third party supplier (whether or not such  arrangement involves us contracting as your agent), to the extent  applicable, this Agreement shall apply to our Services in arranging such supply, provided that we exclude all liability in connection with the supply  of Materials or Services to you directly by a third party supplier. You  agree to pay all Amounts Owing under this Agreement if we arrange any  supply of Materials or Services provided directly to you by a third party  supplier. 

    30.3.We offer no warranty regarding the quality of the third party supplier’s  workmanship, including whether their recommendations are appropriate  or accurate. 


    31.1.To the extent permitted by law, we shall have no liability whatsoever to  you for any direct or indirect expense or loss of profit suffered by you  arising out of a breach by us of this Agreement (including any  unintentional misrepresentation made to you by us regarding any of the  Materials or Services). 

    31.2.To the extent permitted by law, our liability shall not exceed the Price of  the Services provided by us under this Agreement. 

    31.3.To the extent permitted by law, our total liability under or in connection  with this Agreement and the Materials or Services is limited to, at our  option: 

    (a)in the case of Materials, any one or more of the following: (i) the  replacement of the Material(s) or the supply of equivalent Material(s);  (ii) the repair of the Material(s); (iii) the payment of the expense of  replacing the Material(s) or of acquiring equivalent Material(s); or (iv)  the payment of the expense of having the Material(s) repaired; or 

    (b)in the case of Services: (i) resupplying the Services; or (ii) the  payment of the expense of having the Services resupplied. 

    31.4.If, notwithstanding clause 30, we have any liability under or in  connection with this Agreement, to the maximum extent permitted by law: (a)(our total aggregate liability to you for any loss, damage or liability  

    arising out of or in connection with this Agreement will be limited to the  lesser of: (i) the Price paid by you to us for the applicable Materials or  Services; or (ii) the actual loss or damage suffered by you); and 

    (b)we will not be liable for any: (i) indirect, special or consequential loss  or damage whatsoever; or (ii) loss of profits, revenue, data, goodwill,  clients, opportunities or loss of or damage to reputation. 

    31.5.The limitations and exclusions on liability in this clause 31 will apply  irrespective of the legal basis for the applicable claim, including contract,  equity, tort or statute, except negligence and fraud. 

    31.6.In no circumstances will we have any liability whatsoever under or in  connection with this Agreement: 

    (a)for the acts or omissions of any third party; 

    (b)any act or omissions performance in accordance with your instructions  (or instructions from your authorised agents); or 

    (c)to any third party. 

    1. GENERAL 

    32.1.Governing law: This Agreement is governed by and to be construed in  accordance with the laws of New Zealand, and each party submits to the  exclusive jurisdiction of the courts of New Zealand. 

    32.2.Entire Agreement: This Agreement constitutes the entire agreement of  the parties about its subject matter and supersedes all previous  agreements, representations and understandings.  

    32.3.Priority: To the extent of an inconsistency between: 

    (a)this Agreement; 

    (b)all other schedules to this Agreement; 

    (c)any privacy or data agreement (if applicable); and 

    (d)the order of priority above will apply (with (a) having the highest  priority). 

    32.4.Subcontracting: We may subcontract the performance of our obligations  (including to a Related Company) on the basis that we remain solely  liable to you for the performance of our obligations. 

    32.5.Assignment: You must not assign, novate or transfer your rights or  obligations under this Agreement without our prior written consent (which  may be withheld at our sole discretion). We may assign this Agreement  to any other person. Without limiting the foregoing, we may assign to any  other person all or part of the Amounts Owing by you. 

    32.6.Amendments: Except where stated otherwise in this Agreement, any  amendment to this Agreement must be in writing, signed by both parties,  except where we are required to make changes to ensure compliance  with applicable laws, in which case we can give you notice of any such  amendments required, and you will be bound by the same. 

    32.7.Notices: Any notice, demand or other communication to be served on a  party must be in writing and sent by personal delivery, pre-paid post or  email to the address of the relevant party (or otherwise notified to the  other party from time to time). Any notice or other communication is  deemed to be received (i) if personally delivered, on receipt, (ii) if posted  

    by pre-paid official postal service, on the fifth Business Day after posting  (or seven Business Days after posting if sent from one country to  another), and (iii) if sent by email on the date and time that the email was  sent (as evidenced in the sender’s email sent history). Notices received  after 5pm on a Business Day will be deemed received on the next  Business Day. 

    32.8.Force majeure: We will not be liable to you for any failure or delay in  performing our obligations under this Agreement where such failure or  delay is caused by events or circumstances beyond our reasonable  control (including any strike, lockout, labour dispute, delay in transit,  embargo, epidemic, pandemic, accident, emergency, order of  government or other authority or act of god). 

    32.9.Severability: If any part of this Agreement is illegal or unenforceable, it  will be severed, and all remaining rights in this Agreement will continue in  full force and effect. 

    32.10.Waiver: A single or partial exercise or waiver of a right relating to this  Agreement does not prevent any other exercise of that right or the  exercise of any other right. 

    32.11.Termination: Either party may terminate this Agreement immediately by  written notice if the other party breaches a term of this Agreement which  is not capable of remedy or, where the breach is capable of remedy, fails  to remedy the breach within 20 Business Days of written notice of the  breach. 

    32.12.Survival: Any rights or obligations under or in connection with this  Agreement, which is by nature a continuing obligation, will survive  termination of this Agreement by either party. 

    32.13.Rights of third parties: This Agreement is not intended to confer a  benefit on any person other than the parties to this Agreement. 32.14.Relationship: We will provide Materials or Services to you as an  independent contractor. Nothing in this Agreement creates any  partnership, joint venture or employment relationship between the  parties. 

    32.15.Non-exclusive: This Agreement is not exclusive, and you agree that  there are no restrictions on us to provide any Materials or Services to any  other person. 

    32.16.Counterparts: This Agreement may be executed in any number of  counterparts (including by electronic signature or email exchange of pdf  copies), constituting one instrument. 

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