1.1“Client” means the person/s, entities or any person acting on behalf of and with the authority of the Client requesting Flooring Design to provide the Services as specified in any proposal, quotation, order, invoice or other documentation, and:(a)if there is more than one Client, is a reference to each Client jointly and severally; and(b)if the Client is a partnership, it shall bind each partner jointly and severally; and(c)if the Client is a part of a Trust, shall be bound in their capacity as a trustee; and(d)includes the Client’s executors, administrators, successors and permitted assigns.
1.2 “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.
1.3 “Cookies” means small files which are stored on a user’s computer.They are designed to hold a modest amount of data (including Personal Information) specific to a particular client and website, and can be accessed either by the web server or the client’s computer. If the Client does not wish to allow Cookies to operate in the background when using Flooring Design’s website, then 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 making enquiries via the website.
1.4 “Flooring Design” means Fargoal Investments Ltd,its successors and assigns.
1.5 “Goods” means all Goods or Services supplied by Flooring Design to the Client at the Client’s request from time to time(where the context so permits the terms‘Goods’ or ‘Services’ shall be interchangeable for the other).
1.6 “Price” means the Price payable (plus any Goods and Services Tax (“GST”)where applicable) for the Goods as agreed between Flooring Design and the Client in accordance with clause 7below.
1.7 “Worksite” means the address nominated by the Client to which the Goods are to be supplied by Flooring Design.
2.1 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 the Goods.
2.2 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.
2.3 Any amendment to the terms and conditions contained in this Contract may only be amended in writing by the consent of both parties.
2.4 The Client acknowledges and accepts that:
(a) the supply of Goods on credit shall not take effect until the Client has completed a credit application with Flooring Design and it has been approved with a credit limit established for the account;
(b) in the event that the supply of Goods requested exceeds the Client’s credit limit and/or the account exceeds the payment terms, Flooring Design reserves the right to refuse Delivery;
(c) the supply of Goods for accepted orders may be subject to availability and if, for any reason, Goods are not or cease to be available, Flooring Design reserves the right to substitute comparable Goods (or components of the Goods) and vary the Price as per clause 7.2 In all such cases Flooring Design will notify the Client in advance of any such substitution, and also reserves the right to place the Client’s order and/or Services on hold, as per clause 8.2 until such time as Flooring Design and the Client agree to such changes; and
(d) not all items or promotions offered on Flooring Design’s website are available at a specific store, or online, and are subject to availability at the advertised Price.
2.5 Any advice, recommendation, information, assistance or service provided by Flooring Design in relation to Goods or Services supplied is given in good faith to the Client, or the Client’s agent and is based on Flooring Design’s own knowledge and experience and shall be accepted without liability on the part of Flooring Design. Where such advice or recommendations are not acted upon then Flooring Design shall require the Client or their agent to authorise commencement of the Services in writing. Flooring Design shall not be liable in any way whatsoever for any damages or losses that occur after any subsequent commencement of the Services.
2.6 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. Authorised Representatives
3.1 The Client acknowledges that Flooring Design shall (for the duration of the Services) liaise directly with one (1) authorised representative, and that once introduced as such to Flooring Design, that person shall have the full authority of the Client to order any Goods/ Services and/or to request any variation thereto on the Client’s behalf. The Client accepts that they will be solely liable to Flooring Design for all additional costs incurred by Flooring Design (including Flooring Design’s profit margin) in providing any Goods/Services or variation/s requested thereto by the Client duly authorised representative.
4. Errors and Omissions
4.1 The Client acknowledges and accepts that Flooring Design 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 Flooring Design 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 Flooring Design in respect of the Services.
4.2 In the event such an error and/or omission occurs in accordance with clause 4.1, and is not attributable to the negligence and/or wilful misconduct of Flooring Design; the Client shall not be entitled to treat this Contract as repudiated nor render it invalid.
5. Change In Control
5.1 The Client shall give Flooring Design 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 and contact phone or fax number/s, change of trustees or business practice). The Client shall be liable for any loss incurred by Flooring Design as a result of the Client’s failure to comply with this clause.
6.1 If this Contract is conditional upon the Client obtaining capital funding from a financial institution then they shall provide Flooring Design with written confirmation of the loan approval within five (5) working days of the date of signing this Contract.
6.2 In the event any such loan application is declined then the Client shall have the right to withdraw from this Contract subject to the Client providing Flooring Design with written evidence within five (5) working days of the date of signing this Contract that the loan was declined. Upon receipt of such evidence Flooring Design shall refund the Client any deposit paid less any expenses incurred by Flooring Design for any Services performed to date.
7. Price and Payment
7.1 At Flooring Design’s sole discretion the Price shall be either:
(a) as indicated on any invoice provided by Flooring Design to the Client; or
(b) Flooring Design’s quoted price (subject to clause 7.2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.
7.2 Flooring Design reserves the right to change the Price:
(a) if a variation to the Goods which are to be supplied is requested; or
(b) if a variation to the Services originally scheduled (including any applicable plans or specifications) is requested; or
(c) where additional Services are required due to the discovery of hidden or unidentifiable difficulties (including, but not limited to, poor weather, limitations to accessing the Worksite, obscured building/Worksite defects, incorrect measurements, plans and/or specifications provided by the Client, stock availability, safety considerations (discovery of asbestos, etc.), prerequisite work by any third party not being completed, remedial work required due to existing structure or subfloor not being suitable for the installation of the Goods, etc.) which are only discovered on commencement of the Services; or
(d) in the event of overseas transactions that may increase as a consequence of variations in foreign currency rates of exchange and/or international freight and insurance charges or increases to Flooring Design in the cost of labour or materials which are beyond Flooring Design’s control.
7.3 Variations will be charged for on the basis of Flooring Design’s quotation, and will be detailed in writing, and shown as variations on Flooring Design’s invoice. The Client shall be required to respond to any variation submitted by Flooring Design within ten (10) working days. Failure to do so will entitle Flooring Design 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.
7.4 At Flooring Design’s sole discretion a deposit may be required.
7.5 Time for payment for the Goods being of the essence, the Price will be payable by the Client on the date/s determined by Flooring Design, which may be:
(a) on Delivery of the Goods or completion of the Services;
(b) by way of instalments/progress payments in accordance with Flooring Design’s payment schedule;
(c) for certain approved Clients, 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 Flooring Design.
7.6 Payment may be made by cash, cheque, bank cheque, electronic/on-line banking, Q Card/credit card (a surcharge per transaction may apply), or by any other method as agreed to between the Client and Flooring Design.
7.7 Flooring Design may in its discretion allocate any payment received from the Client towards any invoice that Flooring Design determines and may do so at the time of receipt or at any time afterwards. On any default by the Client Flooring Design may re-allocate any payments previously received and allocated. In the absence of any payment allocation by Flooring Design, payment will be deemed to be allocated in such manner as preserves the maximum value of Flooring Design’s Purchase Money Security Interest (as defined in the PPSA) in the Goods.
7.8 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 Flooring Design nor to withhold payment of any invoice because part of that invoice is in dispute.
7.9 Unless otherwise stated the Price does not include GST. In addition to the Price, the Client must pay to Flooring Design an amount equal to any GST Flooring Design must pay for any supply by Flooring Design under this or any other contract for the sale of the Goods. 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.
8. Provision of the Services
8.1 Subject to clause 8.2 it is Flooring Design’s responsibility to ensure that the Services start as soon as it is reasonably possible.
8.2 The Services’ commencement date will be put back and the completion date extended by whatever time is reasonable in the event that Flooring Design claims an extension of time (by giving the Client written notice) where completion is delayed by an event beyond Flooring Design’s control, including but not limited to any failure by the Client to:
(a) make a selection; or
(b) have the Worksite ready for the Services; or
(c) notify Flooring Design that the Worksite is ready.
8.3 In the event that the Client postpones the installation less than seventy-two (72) hours prior to commencement of the Services, then Flooring Design reserves the right to charge a fee, as determined by Flooring Design, for re-scheduling other work.
8.4 Delivery (“Delivery”) of the Goods is taken to occur at the time that:
(a) the Client or the Client’s nominated carrier takes possession of the Goods at Flooring Design’s address; or
(b) Flooring Design (or Flooring Design’s nominated carrier) delivers the Goods to the Client’s nominated address even if the Client is not present at the address.
8.5 At Flooring Design’s sole discretion the cost of Delivery is included in the Price.
8.6 Any time specified by Flooring Design for Delivery of the Goods is an estimate only. The Client must take Delivery by receipt or collection of
8.7 Flooring Design may deliver the Goods in separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.
8.8 Any time specified by Flooring Design for Delivery of the Goods is an estimate only and Flooring Design 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 Goods to be delivered at the time and place as was arranged between both parties. In the event that Flooring Design is unable to supply the Goods as agreed solely due to any action or inaction of the Client, then Flooring Design shall be entitled to charge a reasonable fee for redelivery and/or storage.
9.1 Risk of damage to or loss of the Goods passes to the Client on Delivery and the Client must insure the Goods on or before Delivery.
9.2 If any of the Goods are damaged or destroyed following Delivery but prior to ownership passing to the Client, Flooring Design is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by Flooring Design is sufficient evidence of Flooring Design’s rights to receive the insurance proceeds without the need for any person dealing with Flooring Design to make further enquiries.
9.3 Where Flooring Design is to both supply and install Goods then Flooring Design shall maintain a contract works insurance policy until the Services are completed. Upon completion of the Services all risk for the Services shall immediately pass to the Client.
9.4 All potential waterproofing surfaces are subject to an inspection by Flooring Design prior to the commencement of the Services. In the event that the surface is deemed unsuitable, then Flooring Design reserves the right to halt the Services until such time as it is agreed between Flooring Design and the Client as to the additional cost in further preparation of the surface in order to make it fit for waterproofing. The additional cost shall be charged as a variation to the quotation as per clause 7.2.
9.5 Flooring Design shall be entitled to rely on the accuracy of any plans, specifications 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, Flooring Design accepts no responsibility for any loss, damages, or costs however resulting from these inaccurate plans, specifications or other information.
9.6 The Client warrants that any structures to which the Goods are to be affixed are able to withstand the installation thereof and are of suitable capacity to handle the Goods once installed. If for any reason (including the discovery of asbestos, wood rot etc) that Flooring Design, or Flooring Design’s employees, reasonably form the opinion that the Client’s premises is not safe for the Services to proceed then Flooring Design shall be entitled to delay the provision of the Services (in accordance with the provisions of clause 8.2 above) until Flooring Design is satisfied that it is safe for the installation to proceed.
9.7 The Client acknowledges and agrees that:
(a) Flooring Design will not accept responsibility for any damage to the floor due to microenvironments caused by air-conditioning, heating or large expanses of glass windows without curtains or blinds; and
(b) whilst Flooring Design will take all due care to avoid contamination of the finished surface, Flooring Design accepts no responsibility for contamination by natural contaminates such as dust or hair which may be present at the Worksite.
9.8 Flooring Design will only inspect or view a floor from a standing position, as this is generally how you will be living on it. Minor marks or slight imperfections in the floor finish that can only be viewed from a crouching or kneeling position will not be considered defects.
9.9 The Client acknowledges and accepts that Goods supplied may:
(a) fade or change colour over time;
(b) expand, contract, dent or distort as a result of exposure to heat, cold, weather;
(c) mark or stain if exposed to certain substances; and
(d) be damaged or disfigured by impact or scratching.
9.10 Flooring Design will make every effort to match colour samples to the Goods supplied and match different batches of the Goods but will not be liable in any way whatsoever for any differences between the Goods that may occur.
9.11 Flooring Design reserves the right to touch-up all products supplied and installed on the Worksite to rectify minor blemishes or damage to paintwork.
9.12 Flooring Design accepts no responsibility for any damage or performance related problems with any Goods where they have not been used and/or maintained in accordance with Flooring Design and/or the manufacturers’ recommendations.
9.13 The Client acknowledges and accept that;
(a) whilst Flooring Design will remove small off cuts on the newly installed flooring, Flooring Design shall not vacuum the carpet. In the event that the Client would like the carpet vacuumed upon completion of the Services it shall be the Client’s responsibility to advise Flooring Design, prior to the installation and will be invoiced as an extra;
(b) whilst carpet manufacturers make every effort to match dye lots, colours or shade may vary between batches of product and/or between sales samples and actual product supplied;
(c) carpet manufacturers cannot guarantee to produce perfectly uniform patterned product, therefore there is no guarantee that patterned product will match perfectly when installed;
(d) the installation process for carpet may require seams and cross-joins and that the appearance of these may be affected by light source and in particular the construction of the chosen product;
(e) cut pile carpets, in particular Plush Piles can develop pile reversal (shading or watermarking). In these instances areas of the carpet appear to become lighter or darker on the angles from which they are viewed. Pile reversal does not affect the wear or durability of the carpet and is not deemed to be a defect or manufacturing fault but an inherent fibre characteristic; and
(f) tracking can also occur which is caused by imprints left in the carpet primarily caused by walking on the carpet and shall not be deemed as a defect or manufacturing fault.
9.14 It is Flooring Designs recommendation that:
(a) where a thicker carpet has been installed which may restrict the doors from swinging freely that the Client ensure that the door adjusted accordingly; and
(b) the Client places appropriate protectors on the feet of chairs, tables and other furniture to avoid damaging the flooring.
9.15 Timber is a:
(a) natural product and as such may exhibit variations in texture, shade, colour, surface, finish, markings, veining, and contain natural fissures, occlusions, and indentations; and
(b) hydroscopic material subject to expansion and contraction, therefore Flooring Design will accept no responsibility for gaps that may appear in the flooring during prolonged dry periods.
Vinyl, Laminate Flooring Risk
9.16 The Client acknowledges and agrees that Flooring Design shall not be liable for any loss, damages or costs however arising in the event that:
(a) a heavy or sharp object is dropped or falls on the vinyl, as vinyl will show scratches and will get cut as it is a soft and flexible Goods; or
(b) an object is dragged across it as vinyl can rip and tear; or
(c) the vinyl discolours or bubbles in areas due to exposure to extreme heat (including, but not limited to, conservatories and floor to ceiling windows); or
(d) the vinyl discolours due to Rubber Migration (plasticiser Migration) which is caused by rubber or latex products, such as slippers or shoes, coming into contact with the vinyl over a period of time. This will not be deemed as a manufacturer’s or installation defect.
9.17 Flooring Design does not recommend vinyl to be installed over a floor that is a combination of wood and concrete, or expansion joints in concrete floors, as any movement, joint, seams in bison board, or thin line board will show through the vinyl.
9.18 The Client acknowledges and agrees that vinyl will not fully seal a floor around the edges particularly around showers or baths; the Client also agrees water can get underneath and therefore bubble and/or discolour the vinyl. Flooring Design shall not be held liable for any loss, damages or costs however arising due to the same.
9.19 Flooring Design shall advise the Client, if Flooring Design believes that there are any issues with the sub floor (including, but not limited to, moisture problems which may cause the vinyl to bubble and discolour) however, the Client acknowledges that it is not always possible to identify such problems therefore the Client agrees that Flooring Design shall not be held liable in any way whatsoever should any such issue go undetected causing damage to the Goods.
9.20 The Client acknowledges that whilst floor leveling compound and floor preparation may help smooth out rough floors; this will not necessarily level a floor.
9.21 Whilst laminate is a tough and durable product, the floors
10. Client’s Responsibilities
10.1 It is the Client’s responsibility to;
(a) have all areas clean and clear to enable scheduled work to be completed in accordance with the schedule of installation;
(b) unless otherwise agreed, remove all existing floor coverings, tacks and staples. Where Flooring Design has agreed to remove and dispose of the old flooring this will be invoices as an extra and treated as a variation as per clause 7.2;
(c) fully disclose any information that may affect Flooring Design’s installation procedures (including, but not limited to, disclosing known breaks or tears in the membrane, extensions of existing slabs, thickened beams, curing compounds that may have been used, or the use of concrete over 25mpa);
(d) ensure the sub-floor is adequately ventilated and is structurally sound;
(e) ensure that the levels of the sub-floor are satisfactory as the floor coverings can only follow the contours of the sub-floor and will not correct unevenness;
(f) remove all fragile items such as glassware, crockery, pot plants, furniture and ornaments. Breakages and damages are the responsibility of the Client. All care taken but no responsibility accepted by Flooring Design in this regard;
(g) where required that the doors and/or trimmings are removed;
(h) cover any vents in the area to contain dust;
(i) provide adequate dust sheets to protect the Client’s furniture and décor. Flooring Design will not accept any responsibility for cleaning or repair costs attributed to dust or damage caused by any sanding process. Flaking or crumbling walls should be temporarily covered by the Client, until the coatings are dry;
(j) extinguish all naked flames prior to coating including, but not limited to, pilot lights, heaters etc;
(k) ensure that full and final lighting as designed for the completed project is fully operational prior to sanding works commencing, and are made available for use at no cost for the duration of the project. Any costs incurred by Flooring Design will be invoiced to the Client should this requirement not be met;
(l) keep children and pets away from the installation area; and
(m) make the premises available on the agreed date and time. If installation is interrupted by the failure of the Client to adhere to the installation schedule agreed to between Flooring Design and the Client, any additional costs will be invoiced to the Client as an extra.
10.2 Unless otherwise agreed and specified in the quote, Flooring Design shall not remove furniture, fittings, move gas or electrical appliances and is not insured to do so, nor is licensed to. It shall be the Client’s responsibility to ensure that all appliances are disconnected (including but not limited to, wiring from TV’s, stereos, computers etc) by a qualified trades person. Any low fitting light fittings are to be removed or raised.
10.3 In the event that the flooring is to be installed underneath appliances (including but not limited to, toilets, stand-alone bathtubs etc) it shall be the Client’s responsibility to ensure that theses appliances are removed prior to installation.
10.4 Where Flooring Design requires that Goods, tools etc. required for the Services be stored at the Worksite, the Client shall supply Flooring Design a safe area for storage and shall take all reasonable efforts to protect all items from destruction, theft or damage. In the event that any of the stored items are destroyed, stolen or damaged, then the cost of repair or replacement shall be the Client’s responsibility.
11. Worksite Access and Condition
11.1 It is the intention of Flooring Design and agreed by the Client that:
(a) The Client shall ensure that Flooring Design has clear and free access to the Worksite at all times to enable them to undertake the Services (including carrying out Worksite inspections, and for the delivery and installation of the Goods). Flooring Design shall not be liable for any loss or damage to the Worksite (including, without limitation, damage topathways, driveways and concreted or paved or grassed areas) unless due to the negligence of Flooring Design; and
(b) it is the Client’s responsibility to provide Flooring Design, while at the Worksite, with adequate access to available parking spaces, water, electricity, toilet and washing facilities.
11.2 The Client agrees to be present at the Worksite when and as reasonably requested by Flooring Design and its employees, contractors and/or agents.
11.3 Worksite Inductions
(a) In the event the Client requires an employee or sub-contractor of Flooring Design to undertake a Worksite induction during working hours, the Client will be liable to pay the hourly charges for that period. If any induction needs to be undertaken prior to the commencement date then the Client shall be liable to pay Flooring Design’s standard (and/or overtime, if applicable) hourly labour rate; or
(b) where Flooring Design is in control of the Worksite, the Client and/or the Client’s third party contractors must initially carry out Flooring Design’s Health & Safety induction course before access to the Worksite will be granted. Inspection of the Worksite during the course of the Services will be by appointment only and unless otherwise agreed, in such an event the Client and/or third party acting on behalf of the Client must at all times be accompanied by Flooring Design.
12. Compliance with Laws
12.1 The Client and Flooring Design shall comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities that may be applicable to the Services, including any WorkSafe health and safety laws relating or any other relevant safety standards or legislation pertaining to the Services.
12.2 Notwithstanding clause 12.1 and pursuant to the Health & Safety at Work Act 2015 (the “HSW Act”), Flooring Design agrees at all times to comply with sections 28 and 34 of the “HSW Act” with meeting their obligations for health and safety laws in the workplace regardless of whether they may be the party in control of the Worksite or where they may be acting as a sub-contractor for the Client who has engaged a third party head contractor.
13.1 Flooring Design and the Client agree that ownership of the Goods shall not pass until:
(a) the Client has paid Flooring Design all amounts owing to Flooring Design; and
(b) the Client has met all of its other obligations to Flooring Design.
13.2 Receipt by Flooring Design 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.
13.3 It is further agreed that until ownership of the Goods passes to the Client in accordance with clause 13.1:
(a) the Client is only a bailee of the Goods and must return the Goods to Flooring Design on request;
(b) the Client holds the benefit of the Client’s insurance of the Goods on trust for Flooring Design and must pay to Flooring Design the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed;
(c) the Client must not sell, dispose, or otherwise part with possession of the Goods other than in the ordinary course of business and for market value. If the Client sells, disposes or parts with possession of the Goods then the Client must hold the proceeds of any such act on trust for Flooring Design and must pay or deliver the proceeds to Flooring Design on demand;
(d) the Client should not convert or process the Goods 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 Flooring Design and must sell, dispose of or return the resulting product to Flooring Design as it so directs;
(e) the Client irrevocably authorises Flooring Design to enter any premises where Flooring Design believes the Goods are kept and recover possession of the Goods;
(f) Flooring Design may recover possession of any Goods in transit whether or not Delivery has occurred;
(g) the Client shall not charge or grant an encumbrance over the Goods nor grant nor otherwise give away any interest in the Goods while they remain the property of Flooring Design; and
(h) Flooring Design may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Client.
14. Personal Property Securities Act 1999 (“PPSA”)
14.1 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 Goods that have previously been supplied and that will be supplied in the future by Flooring Design to the Client, and the proceeds from such Goods.
14.2 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 Flooring Design may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register;
(b) indemnify, and upon demand reimburse, Flooring Design for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register or releasing any Goods charged thereby;
(c) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods or the proceeds of such Goods in favour of a third party without the prior written consent of Flooring Design; and
(d) immediately advise Flooring Design of any material change in its business practices of selling the Goods which would result in a change in the nature of proceeds derived from such sales.
14.3 Flooring Design and the Client agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms and conditions.
14.4 The Client waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, and 131 of the PPSA.
14.5 Unless otherwise agreed to in writing by Flooring Design, the Client waives its right to receive a verification statement in accordance with section 148 of the PPSA.
14.6 The Client shall unconditionally ratify any actions taken by Flooring Design under clauses 14.1 to 14.5.
14.7 Subject to any express provisions to the contrary (including those contained in this clause 14), nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.
15. Security and Charge
15.1 In consideration of Flooring Design agreeing to supply the Goods, 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, and the Client grants a security interest in all of its present and after-acquired property, 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). The terms of the charge and security interest are the terms of Memorandum 2018/4344 registered pursuant to s.209 of the Land Transfer Act 2017.
15.2 The Client indemnifies Flooring Design from and against all Flooring Design’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising Flooring Design’s rights under this clause.
15.3 The Client irrevocably appoints Flooring Design and each director of Flooring Design as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 15 including, but not limited to, signing any document on the Client’s behalf.
16.1 The Client shall inspect the Goods on Delivery and shall within seven (7) days of Delivery (time being of the essence) notify Flooring Design of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Client shall afford Flooring Design an opportunity to inspect the Goods within a reasonable time following Delivery if the Client believes the Goods are defective in any way. If the Client shall fail to comply with these provisions the Goods shall be presumed to be free from any defect or damage. For defective Goods, which Flooring Design has agreed in writing that the Client is entitled to reject, Flooring Design’s liability is limited to either (at Flooring Design’s discretion) replacing the Goods or repairing the Goods.
16.2 Goods will not be accepted for return other than in accordance with 16.1 above.
17.1 To the extent permitted by statute, no warranty is given by Flooring Design as to the quality or suitability of the Goods for any purpose and any implied warranty, is expressly excluded. Flooring Design shall not be responsible for any loss or damage to the Goods, or caused by the Goods, or any part thereof however arising.
17.2 For Goods not manufactured by Flooring Design, the warranty shall be the current warranty provided by the manufacturer of the Goods. Flooring Design 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 Goods.
18. Consumer Guarantees Act 1993
18.1 If the Client is acquiring Goods for the purposes of a trade or business, the Client acknowledges that the provisions of the Consumer Guarantees Act 1993 (“CGA”) do not apply to the supply of Goods by Flooring Design to the Client.
19. Intellectual Property
19.1 Where Flooring Design has designed, drawn or developed Goods for the Client, then the copyright in any designs and drawings and documents shall remain the property of Flooring Design. Under no circumstances may such designs, drawings and documents be used without the express written approval of Flooring Design.
19.2 The Client agrees that Flooring Design may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings or Goods which Flooring Design has created for the Client.
20. Default and Consequences of Default
20.1 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 Flooring Design’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
20.2 If the Client owes Flooring Design any money the Client shall indemnify Flooring Design from and against all costs and disbursements incurred by Flooring Design in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, Flooring Design’s collection agency costs, and bank dishonour fees).
20.3 Further to any other rights or remedies Flooring Design may have under this Contract, if a Client has made payment to Flooring Design, and the transaction is subsequently reversed, the Client shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by Flooring Design under this clause 20 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Client’s obligations under this Contract.
20.4 Without prejudice to Flooring Design’s other remedies at law Flooring Design shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to Flooring Design shall, whether or not due for payment, become immediately payable if:
(a) any money payable to Flooring Design becomes overdue, or in Flooring Design’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 Flooring Design;
(c) the Client becomes insolvent, 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.
21.1 Without prejudice to any other remedies Flooring Design may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions Flooring Design may suspend or terminate the supply of Goods to the Client. Flooring Design will not be liable to the Client for any loss or damage the Client suffers because Flooring Design has exercised its rights under this clause.
21.2 Flooring Design may cancel any contract to which these terms and conditions apply or cancel Delivery of Goods at any time before the Goods are delivered by giving written notice to the Client. On giving such notice Flooring Design shall repay to the Client any money paid by the Client for the Goods. Flooring Design shall not be liable for any loss or damage whatsoever arising from such cancellation.
21.3 In the event that the Client cancels Delivery of Goods the Client shall be liable for any and all loss incurred (whether direct or indirect) by Flooring Design as a direct result of the cancellation (including, but not limited to, any loss of profits).
22.1 All emails, documents, images or other recorded information held or used by Flooring Design is “Personal Information” as defined and referred to in clause 22.3 and therefore considered confidential. Flooring Design acknowledges its obligation in relation to the handling, use, disclosure and processing of Personal Information pursuant to the Privacy Act 2020 (“the Act”) including Part II of the OECD Guidelines as set out in the Act. Flooring Design acknowledges that in the event it becomes aware of any data breaches and/or disclosure of the Client’s Personal Information, held by Flooring Design that may result in serious harm to the Client, Flooring Design will notify the Client in accordance with the Act. Any release of such Personal Information must be in accordance with the Act and must be approved by the Client by written consent, unless subject to an operation of law.
22.2 Notwithstanding clause 22.1, privacy limitations will extend to Flooring Design in respect of Cookies where the Client utilises Flooring Design’s website to make enquiries. Flooring Design 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 Flooring Design when Flooring Design sends an email to the Client, so Flooring Design may collect and review that information (“collectively Personal Information”)
22.3 The Client authorises Flooring Design or Flooring Design’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 Flooring Design from the Client directly or obtained by Flooring Design 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.
22.4 Where the Client is an individual the authorities under clause 22.3 are authorities or consents for the purposes of the Privacy Act 2020.
22.5 The Client shall have the right to request (by e-mail) from Flooring Design, a copy of the Personal Information about the Client retained by Flooring Design and the right to request that Flooring Design correct any incorrect Personal Information.
22.6 Flooring Design will destroy Personal Information upon the Client’s request (by e-mail) or if it is no longer required unless it is required in order to fulfil the obligations of this Contract or is required to be maintained and/or stored in accordance with the law.
22.7 The Client can make a privacy complaint by contacting Flooring Design via e-mail. Flooring Design will respond to that complaint within seven (7) days of receipt and will take all reasonable steps to make a decision as to the complaint within twenty (20) days of receipt of the complaint. In the event that the Client is not satisfied with the resolution provided, the Client can make a complaint to the Privacy Commissioner at http://www.privacy.org.nz.
23. Service of Notices
23.1 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;
(e) if sent by email to the other party’s last known email address.
23.2 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.
24.1 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 Flooring Design may have notice of the Trust, the Client covenants with Flooring Design 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 Flooring Design (Flooring Design 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.
25.1 Any dispute or difference arising as to the interpretation of these terms and conditions or as to any matter arising herein, shall be submitted to, and settled by, mediation before resorting to any external dispute resolution mechanisms (including arbitration or court proceedings) by notifying the other party in writing setting out the reason for the dispute. The parties shall share equally the mediator’s fees. Should mediation fail to resolve the dispute, the parties shall be free to pursue other dispute resolution avenues.
25.2 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.
25.3 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 New Zealand.
25.4 Subject to the CGA, Flooring Design 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 Flooring Design of these terms and conditions (alternatively Flooring Design’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Goods).
25.5 Flooring Design may licence and/or assign all or any part of its rights and/or obligations under this Contract without the Client’s consent.
25.6 The Client cannot licence or assign without the written approval of Flooring Design.
25.7 Flooring Design may elect to subcontract out any part of the Services 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 Flooring Design’s sub-contractors without the authority of Flooring Design.
25.8 The Client agrees that Flooring Design 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 Flooring Design to provide Goods to the Client.
25.9 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm, national or global pandemics and/or the implementation of regulation, directions, rules or measures being enforced by Governments or embargo, including but not limited to, any Government imposed border lockdowns (including, worldwide destination ports), etc, (“Force Majeure”) or other event beyond the reasonable control of either party. This clause does not apply to a failure by the Client to make a payment to Flooring Design.
25.10 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.