1. Parties and Definitions To This Agreement
“SB 2 Build” for the purposes of this agreement, shall mean SB 2 Build Limited. Any person or entity acting for or on behalf of SB 2 Build or with the permission or authority of SB 2 Build.
“Customer” shall mean the Customer, any person or entity acting for or on behalf of the Customer or with the permission or authority of the Customer as detailed on any quotation, estimate, work authority, notation or form as provided by SB 2 Build to the Customer.
“Guarantor” shall mean any person (or persons), or entity, who agrees to be held liable for the debts incurred by the Customer in the course of business between the Customer and SB 2 Build on a principal debtor basis.
“Services” shall mean all services supplied by SB 2 Build to the Customer and includes any recommendations or consultancy advice.
“Price” shall mean the price payable for the goods and or service as agreed between SB 2 Build and the Customer in accordance with clause 3 of this contract.
2. Goods And Services
The Goods and Services provided shall be described on our invoices, quotation, and/or work authorisation, or any other such form as provided by SB 2 Build to the Customer.
3. Price And Payment
Any change or variation to the specified work, design, plan or service provided, will be charged on the same rates as per SB 2 Build’s quoted price. Charges for the variation to the quoted work will be invoiced as a variation to the quotation or agreed work and shall be payable immediately on the completion of the work.
4. Payment Terms
Payments will be made as agreed between SB 2 Build and the Customer. If no payment arrangement is made or payment terms agreed then payment shall be due as stated on the Invoice in cash, cheque, or by, or by direct credit to SB 2 Build’s nominated account.
Payment shall not be deemed to have been received unless the payment is made in cash or cleared funds are deposited in SB 2 Build’s nominated account. Any other form of payment will not be receipted as paid until the transaction is deemed to be honoured.
GST and other taxes and duties that may apply will be added to the Price unless they are expressly included in the Price.
SB 2 Build may impose a credit limit at its discretion, and alter the credit limit without notice. Where the credit limit is exceeded, SB 2 Build reserves the right to refuse to supply Goods to the Buyer.
5. Acceptance Of Terms Of Trade
Any engagement of SB 2 Build’s Services including the supply of goods or Services to the Customer shall constitute acceptance of the Terms and Conditions of Trade of SB 2 Build by the Customer. Should more than one Customer enter into this agreement the Customers shall be jointly and severally liable for payment in full of the Price.
The Customer must be either the rightful legal Customer or have the full authority of the legal Customer of the Property or Land to enter into a contract or provide instructions to SB 2 Build to undertake work or provide goods or services.
The Terms and conditions of this agreement can only be amended with the written consent of SB 2 Build and shall be binding on the Customer. In the event that the Customer proposes any change to the structure of the Customers business, a change in Shareholding, Name, Directors, Premises, postal address, registered office or Sale of the business the Customer shall give no less than fourteen one (14) days written notice of the proposed change or changes. If any loss is incurred by SB 2 Build the Customer shall be liable for any loss suffered by SB 2 Build due to the Customer not complying with this provision.
6. Title to Goods
While ownership of the Goods remains with SB 2 Build:
SB 2 Build may apply any payments received from or on behalf of the Buyer in reduction of the Buyer’s Indebtedness as SB 2 Build thinks fit. If the Buyer resells or uses any Goods before ownership of them has passed to the Buyer, the proceeds of such sale or use shall be received and held by the Buyer (in whatever form) in trust for both the Buyer and SB 2 Build. The interest of SB 2 Build as beneficiary under that Trust shall be the portion of the proceeds of sale or other dealing in respect of the Goods which does not exceed the Buyer’s Indebtedness to SB 2 Build.
SB 2 Build may bring an action for the price of the Goods sold notwithstanding that ownership of the Goods may not have passed to the Buyer.
7. Indemnity from Claims
The Customer warrants that no instruction, Plan, Design or drawing provided to SB 2 Build will be misleading, Infringe or result in the infringement of any copyright and or any intellectual property right of any person, and/or result in the breach of any law, statute, regulation or ordinance.
8. Defects
The Customer shall inspect the Goods and Services provided by SB 2 Build and shall within fourteen (14) days of delivery (time being of the essence) notify SB 2 Build of any alleged defect, damage or failure to comply with the description or quote. The Customer shall afford SB 2 Build an opportunity to inspect the goods or services provided within a reasonable time following completion of the service provided or delivery of goods if the Customer believes the Goods or Services to be defective in any way. If the Customer shall fail to comply with these provisions the completed works shall be presumed to be free from any defect. For defective Works, SB 2 Build’s liability is limited to undertaking remedial work on the agreed fault or repair or replacement of any faulty product.
9. Damages
SB 2 Build shall not be liable for any loss or damage caused in accessing the work site beyond reasonable control of SB 2 Build.
10. Compliance with Laws
The Customer and SB 2 Build 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.
The Customer shall obtain (at the expense of the Customer) all licenses and approvals that may be required for the Works unless otherwise agreed in writing with SB 2 Build.
The Customer agrees that the site will comply with any occupational health and safety laws relating to building/construction sites and any other relevant safety standards or legislation.
11. Insurance
SB 2 Build shall maintain public liability insurance of at least $1,000,000.00 indemnifying the Owner against claims arising from the operations of SB 2 Build or subcontractor in relation to the works.
12. Customers Disclaimer
The Customer hereby disclaims any right to rescind, or cancel any contract with SB 2 Build or to sue for damages or to claim restitution arising out of any inadvertent misrepresentation made to the Customer by SB 2 Build and the Customer acknowledges that the Works are bought relying solely upon the Customers skill and judgment.
13. Intellectual Property
Customer warrants that all designs or instructions to SB 2 Build will not cause SB 2 Build to infringe any patent, registered design or trademark in the execution of the Customer’s order and the Customer agrees to indemnify SB 2 Build against any action taken by a third party against SB 2 Build in respect of any such infringement.
14. Personal Property Securities Act 1999 (“PPSA”)
SB 2 Build and the Customer agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms and conditions. The Customer waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA. Unless otherwise agreed to in writing by SB 2 Build, the Customer waives its right to receive a verification statement in accordance with section 148 of the PPSA. The Customer shall unconditionally ratify any actions taken by SB 2 Build under clause 15.
15. Warranty
For Goods not supplied by SB 2 Build, the warranty shall be the current warranty provided by the manufacturer of the Goods. SB 2 Build shall not be responsible for or bound by any term, representation made, or
16. Default and Consequences of Non Payment
If the Customer defaults in payment of any invoice when due, the Customer shall pay all costs and disbursements incurred by SB 2 Build in pursuing the debt including legal costs on a solicitor and own Customer basis and SB 2 Build’s collection agency costs. Disbursements incurred by SB 2 Build in pursuing the debt including legal costs on a solicitor and own Customer basis and SB 2 Build’s collection agency costs.
Interest on overdue or unpaid invoices shall accrue from the date when payment becomes due daily until the date payment is received at a rate of 2% per calendar month and all interest shall compound monthly before and after any judgement until payment is received in full. SB 2 Build at his discretion may suspend or terminate the supply of goods and/or services should the Customer, at any time be in breach of any obligation to SB 2 Build (including those relating to payment). SB 2 Build will not be liable for any loss or damages the Customer has deemed to have suffered because SB 2 Build has exercised his rights under this clause.
If any account remains overdue after thirty (30)days then an amount of $20.00 or 10.00% of the amount overdue (up to a maximum of $200) whichever is the greater, shall be charged for administration fees and shall become immediately due and payable.
17. Right of Cancellation
SB 2 Build may cancel any contract to which these Terms and Conditions apply or cancel the delivery of materials products or goods or Service at any time before the materials, products or goods and alike are delivered by giving written notice to the Customer. On giving notice SB 2 Build shall repay to the Customer any sums paid in respect of the Price. SB 2 Build shall not be liable for any damages or losses arising from such cancellation.
Should the Customer cancel any contract with SB 2 Build the Customer shall be liable for any loss incurred by SB 2 Build (including but not limited to loss of profits) up to the time of Cancellation.
18. Security Agreement
In consideration of SB 2 Build performing its obligations under this Contract, the Buyer covenants to execute and provide forthwith upon demand in favour of SB 2 Build a valid mortgage in the most current Auckland District Law Society form, prepared at the cost of the Buyer, and a Client Authority and Instruction Form for an electronic transaction (in the current form as approved by the New Zealand Law Society (NZLS) and Registrar-General of Land) to enable the registration of a mortgage by e-dealing on the Landonline system at Land Information New Zealand (LINZ) over the Property to secure performance of any obligations owed by the Buyer to SB 2 Build under this Contract.
19. Privacy Act 1993
The Customer and the Guarantor/s (if separate to the Customer) authorises SB 2 Build to: collect, use and retain any information about the Customer, for the purpose of assessing the Customer’s creditworthiness or marketing products and services to the Customer; and disclose information about the Customer, whether collected by SB 2 Build from the Customer directly or obtained by SB 2 Build from any other party, 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 Customer.
Where the Customer and/or Guarantors are an individual the authorities under clause 19.1 are authorities or consents for the purposes of the Privacy Act 1993.
The Customer and/or Guarantors shall have the right to request SB 2 Build for a copy of the information about the Customer and/or Guarantors retained by SB 2 Build and the right to request SB 2 Build to correct any incorrect information about the Customer and/or Guarantors held by SB 2 Build.
20. The Construction Contracts Act 2002
21. Risk
If SB 2 Build retains Ownership of the Goods nonetheless, all risk for the Goods passes to the Customer when the goods are delivered.
If any of the Goods are damaged or destroyed following delivery but prior to Ownership passing to the Customer, SB 2 Build is entitled to receive all insurance proceeds payable for the Goods The production of these terms and conditions by SB 2 Build is sufficient evidence of SB 2 Build’s rights to receive the insurance proceeds without the need for any person dealing with SB 2 Build to make further enquiries.
22. Delivery
At SB 2 Build’s sole discretion delivery of the Goods shall take place when:
Delivery of the Goods from a supplier to SB 2 Build or a third party nominated by the Customer is deemed to be delivery to the Customer for the purposes of this agreement.
Delivery of the Goods from SB 2 Build to the Customer, at the Customers nominated address or nominated third party is deemed to be delivery to the Customer for the purposes of this agreement.
The failure of SB 2 Build to deliver shall not entitle either party to treat this contract as repudiated.
SB 2 Build shall not be liable for any loss or damage whatsoever due to failure by SB 2 Build to deliver the Goods (or any of them) promptly or at all, where due to circumstances beyond the control of SB 2 Build.
23. Dispute Resolution
All disputes and differences between the Customer and SB 2 Build touching and concerning this agreement shall be referred to arbitration under a single arbitrator agreed upon by both parties, or failing agreement, by two arbitrators (one to be appointed by each party) and their umpire (appointed by them prior to arbitration), such arbitration to be carried out in accordance with provisions of the Arbitration Act 1996
24. General
If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the existence, validity legality and enforceability of the remaining provisions shall not be prejudiced, affected or impaired. 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 Nelson New Zealand or as otherwise directed by the Court. All costs of enforcement or attempted enforcement by SB 2 Build including solicitor client costs on an indemnity basis and any collection agency costs or charges shall be met by the Customer and/or Guarantor.
SB 2 Build shall be under no liability whatever to the Customer for any indirect loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by SB 2 Build of these terms and conditions.
In the event of any breach of this contract by SB 2 Build the remedies of the Customer shall be limited to damages which under no circumstances shall exceed the contract price for Services provided and limited to the amount of monies paid to SB 2 Build by the Customer in Part or Full whichever is the lesser amount.
The Customer shall not be entitled to set off against or deduct from the Price any sums owed or claimed to be owed to the Customer by SB 2 Build.
SB 2 Build may license or sub-contract all or any part of his rights and obligations without the Customer’s consent.
SB 2 Build reserves the right to review these terms and conditions at any time. If, following any such review, there is to be any change to these terms and conditions, then that change will take effect from the date on which SB 2 Build notifies the Customer of such change. The provisions of the Contractual Remedies Act 1979 shall apply to this contract as if section 15(d) were omitted from the Contractual Remedies Act 1979.
Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, drought, storm or other event beyond the reasonable control of either party.
The failure by SB 2 Build to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect SB 2 Build’s right to subsequently enforce that provision.
The failure by SB 2 Build to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect SB 2 Build’s right to subsequently enforce that provision.