TERMS AND CONDITIONS OF TRADE

The following terms and conditions are applicable to the provision of building and construction services and building materials (“the Building Work”) by Alder Homes Limited (“Alder Homes”). No other terms, conditions or deviations from these terms and conditions shall be binding unless accepted in writing by an authorised representative of Contract. In the event of a conflict between these terms and conditions and any accompanying documentation, the terms and conditions of the accompanying documentation shall prevail.

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1.     Plans and Specifications

Copyright and ownership in all drawings, specifications and other technical information provided by Alder Homes in connection with the contract is vested in Alder Homes Limited. Where Alder Homes has followed plans and specifications provided by the Customer or their agent, the Customer shall indemnify Alder Homes against all damages, penalties, costs and expenses in respect of which Alder Homes may become liable through the utilisation of those plans and specifications.

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2.     Quotation and Acceptance

Alder Homes shall produce a formal quotation for the Customer for the Building Work. The quotation shall be subject to the clarifications and exclusions set out in the documentation accompanying these terms and conditions and shall be valid for a period of thirty (30) days from the date specified on the quotation.

The Customer shall accept the quotation by signing the acceptance form accompanying the quotation. The acceptance of the quotation in the manner specified in this clause shall constitute a binding contract and acceptance of the terms and conditions contained herein.

For smaller Projects, the customer shall accept the quotation by agreeing to go ahead with the work described, and/or by booking a start date, and/or paying deposit.

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3.     Cancellation

In the event that the Customer wishes to cancel the contract for the Building Work at any time after acceptance of the quotation, the Customer shall pay all actual and reasonable costs and expenses incurred by Alder Homes together with a reasonable administration fee, provided that the Customer shall not be entitled to cancel the contract once the Building Work has commenced without the prior consent in writing of Alder Homes.

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Alder Homes shall, without any liability, and without any prejudice to any other right it has in law or equity, have the right by notice to suspend or cancel in whole or in part any contract for the supply of goods or services to the Customer if the Customer fails to pay any money owing after the due date, or if the Customer commits an act of bankruptcy as defined in section 19 of the Insolvency Act 2006, or if liquidation proceedings are commenced in relation to the Customer, or if the Customer shall otherwise become bankrupt or insolvent, or if any other event occurs which evidences a lack of credit worthiness or insolvency on the part of the Customer.  Any cancellation or suspension by Alder Homes pursuant to this clause shall not affect Alder Homes’s claim for money due at the time of cancellation or suspension or for damages for any breach of any terms of this contract or the Customer’s obligations to Alder Homes under these terms and conditions.

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4.     Variations

Except as expressly provided in these terms and conditions, no variation or alteration to the scope of the Building Work shall be binding on the parties unless recorded in writing and signed by both parties, including any adjustment to the contract price.

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Any changes required as a result of any ambiguous drawings or any other documentation provided by the Customer or their agent will be treated as a variation to the Building Work.

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5.     Price

The price of the Building Work shall be the price stated in the quotation together with all extras selected by the Customer and subject to variation in accordance with clause 3. The price quoted for the Building Work excludes GST unless stated otherwise. GST shall be payable by the Customer in addition to the price quoted.

Where no price is stated in writing or agreed, the goods and/or services shall be deemed to be sold and/or supplied at the current price applying at the date upon which the invoice for the goods or services is issued to the Customer. 

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Notwithstanding anything contained in this clause or the quotation, the price of the goods and/or services may be increased by the amount of any reasonable increase in cost of supply of the goods or services between the date upon which the quotation is delivered to the Customer and the date upon which the goods or services are supplied and where such increase is beyond the reasonable control of Contract.

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6.     Payment

Payment for the Building Work shall be made in full, on or before the 20th day of the month following the month in which the invoice is issued

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Otherwise, payment shall be made in full within seven (7) days of the date of the invoice.

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All invoices for progress payments will be prepared to meet the provisions of the Construction Contracts Act 2002. All invoices issued pursuant to the contract shall be in the form of a payment claim within the meaning of the Construction Contracts Act 2002. The Customer is hereby put on notice of the requirements of the Construction Contracts Act 2002 in terms of the issuing of payment schedules.

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Alder Homes reserves the right to charge interest on all overdue accounts at the daily rate of 1.75 times Alder Homes’s bank total overdraft interest rate from the due date for payment until the date when payment is actually made and all expenses and costs (including legal costs as between solicitor and client and debt collection fees) incurred by Alder Homes in obtaining or attempting to obtain a remedy for the failure to pay.

The Customer may not deduct or withhold any amount (whether by way of a set-off, counterclaim or otherwise) from any money owing to Alder Homes.

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Receipt of a cheque, bill of exchange, or other negotiable instruments shall not constitute payment until such negotiable instrument is paid in full.

The Customer expressly acknowledges that no retentions shall apply unless provision for a retention is incorporated within the prevailing Conditions of Alder Homes.

 

7.     Commencement and Completion

The Customer acknowledges that any estimates as to the time frames for the commencement and completion of the Building Work are approximate only. Alder Homes will use all reasonable endeavours to ensure the Building Work is commenced and completed within the time frame specified but shall not be liable for any delay or failure to do so.  Alder Homes shall not be responsible for any delays caused by separate or nominated subcontractors.  Should any delays occur the Customer agrees that all costs incurred by Alder Homes and resulting from such delays will be charged as a variation to the contract price.

 

8.     Repair of Defects

Where the Building Work is undertaken of a commercial nature, Alder Homes shall at its sole cost rectify any defects in the materials or workmanship which are notified to Alder Homes within ninety (90) days of completion of the Building Work and within a reasonable time of receiving written notification of those defects. 

 

Alder Homes shall not be liable under this clause to remedy:

• defects covered by a manufacturer’s or supplier’s guarantee that is available to and may be enforced by the Customer;

• defects in or damage caused by work undertaken by the Customer or the any of the Customer’s contractors.

 

Where the Building Work is of a residential nature any notification by the Customer in writing to Alder Homes within twelve (12) months from the completion of the Building Work shall be rectified by Alder Homes at Alder Homes’s costs within a reasonable time of notification by the Customer of the defect.

 

Alder Homes shall not be liable under this clause to remedy:

• defects covered by a manufacturer’s or supplier’s guarantee that is available to and may be enforced by the Customer;

• defects in or damage caused by work undertaken by the Customer or the any of the Customer’s contractors.

 

9.     Risk and Insurance

Any goods supplied by Alder Homes shall be at the sole risk of Alder Homes until the earlier of payment for the goods and delivery of the goods to the Customer.

If the Building Work involves an extension or alteration to existing premises, the Customer shall be solely responsible for arranging an extension of the Customer’s insurance policy to provide insurance cover for all associated risks.

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10.    Ownership

Ownership of any goods and/or materials supplied as part of the Building Work shall not pass to the Customer until all amounts owing by the Customer to Alder Homes in respect of the goods and/or materials have been paid in full.

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The Customer acknowledges and agrees that by assenting to these terms & conditions, the Customer grants a Purchase Money Security Interest to Alder Homes, as that term is defined in the Personal Property Securities Act 1999 (“PPSA”), in all goods and/or materials supplied by Alder Homes to the Customer.

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The Customer irrevocably undertakes to sign any further documents and/or provide any further information (which information the Customer warrants to be complete, accurate and up-to-date in all respects) which Alder Homes may reasonably require to enable registration of a financing statement or financing change statement on the Personal Property Securities Register. The costs of registering a financing statement or a financing change statement shall be met by the Customer and may, where applicable, be debited against the Customer’s credit account with Alder Homes. The Customer shall not agree to allow any person to register a financing statement over any of the goods supplied by Alder Homes without the prior written consent of Alder Homes and will immediately notify Alder Homes in writing if the Customer becomes aware of any person taking steps to register a financing statement in relation to such goods.

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The Customer:

1. waives its rights to:

   1. receive a copy of any verification statement;

   2. receive a copy of any financing change statement:

2. If the goods are for the Customer’s business use, the Customer agrees, to the extent Part 9 of the PPSA applies, that it will have no rights under Part 9 of the PPSA.

 

The Customer irrevocably grants to Alder Homes the right to enter upon the Customer’s property or premises, without notice, and without being in any way liable to the Customer or to any third party, if Alder Homes has cause to exercise any of Alder Homes’s rights under section 109 of the PPSA, and the Customer shall indemnify Alder Homes from any claims made by any third party as a result of such exercise.

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Alder Homes and the Customer agree that nothing in sections 114(1)(a), 116, 117(1)(c), 119, 120(2), 121, 125, 126, 127, 129, 131, and 132 of the PPSA will apply to these terms and conditions, or the security interest under these terms and conditions.

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The Customer will be responsible to Alder Homes for any costs or damages incurred in reclaiming and disposing of the unpaid goods and/or materials. Such costs include but are not limited to loss in value, cost or repossession, damaged premises and recovery, storage, resale and legal costs, on a solicitor and client basis.  These costs shall be recoverable as a debt due to Alder Homes by the Customer.

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11.    Warranty and Liability

The warranties, descriptions, representations, or conditions whether implied by law, trade, custom or otherwise are, and all other liability of Alder Homes, whether in tort (including negligence), contract or otherwise is, expressly excluded to the fullest extent permitted by law.

Insofar as Alder Homes may be liable, notwithstanding anything contained in these terms and conditions, to the extent permitted by law the total liability of the Alder Homes whether in tort (including negligence), contract or otherwise for any loss, damage or injury arising directly or indirectly out of completion of the Building Work or any other breach of Alder Homes’s obligations is limited to the lesser of:

1. to the price of goods and/or materials complained of;

2. the cost of completing any necessary repairs/remedial work; or

3. the actual loss or damage suffered by the Customer.

 

Except where statue expressly requires otherwise Alder Homes is not liable in any event for any loss of profits, consequential, indirect or special damage, loss or injury of any kind suffered by the Customer or any other person.

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12.    Collection and Use of Information

The Customer authorises Alder Homes to collect, retain and use any information about the Customer for the purpose of assessing the Customer’s creditworthiness and/or enforcing any rights under this contract.

The Customer authorises Alder Homes to disclose any information obtained to any person for the purposes set out in this clause. Where the Customer is a natural person, the authorities under this clause are authorities or consents for the purposes of the Privacy Act 1993.

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13.    Miscellaneous

Alder Homes shall not be liable for delay or failure to perform its obligations if the cause of the delay or failure is beyond its control.

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Failure by Alder Homes to enforce any of the terms and conditions contained in this contract shall not be deemed to be a waiver of any of the rights or obligations Alder Homes has under this contract.

If any provision of this contract shall be invalid, void or illegal or unenforceable, the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or implied.

The Customer may not assign any of its rights or obligations under this contract without the prior written consent of Alder Homes.

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14.   Personal Guarantee

In consideration for Alder Homes agreeing to complete the Building Work at the request of the Customer, where the Customer is a company or trust, the directors or trustees signing this contract also sign this contract in their personal capacity and jointly and severally personally undertake as principal debtors to Alder Homes the payment of any and all amounts of money owed by the Customer to Alder Homes and indemnify Alder Homes against non-payment by the Customer.

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15.    Governing Law

The within terms and conditions shall be governed by and construed in accordance with the laws of New Zealand and the parties shall submit to the exclusive jurisdiction of the New Zealand Courts.

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16.   Agency

The Customer authorises Alder Homes to contract either as principal or agent for the provision of goods or services.

Where Alder Homes enters into a contract of the type referred to in this clause the Customer agrees to pay any amounts due under that contract.

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Any list of proposed subcontractors supplied by Alder Homes is provided on a without prejudice basis and Alder Homes reserves the exclusive right to change subcontractors without adjustment to the quotation.

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17.    Dispute Resolution

If any dispute or disagreement (a “dispute”) arises between the parties concerning the Building Work, the Building or this Contract, it shall be resolved in accordance with this Part.

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A dispute shall be deemed to have arisen when the first written communication evidencing the dispute (which may include an electronic transmission such as a fax or email, but not a text message) has been delivered or sent by one party to the other.

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As soon as reasonably practicable after the dispute has arisen, the parties shall meet together or otherwise communicate with each other and attempt to resolve the dispute in good faith through negotiation.

After 10 Working Days if the dispute has not been resolved by negotiation, the parties may agree to attempt to resolve it by mediation. Mediation shall not be compulsory unless both parties agree to it, and that agreement may be revoked by either party at any time up until 5 Working Days before the scheduled date for the mediation. The parties shall share the mediator’s fees and expenses equally and meet their own costs. If the parties cannot agree on a mediator within 5 Working Days of the agreement to mediate, then either party may request the President or relevant nominating officer of the Arbitrators’ & Mediators’ Institute of New Zealand Inc (“AMINZ”) or of LEADR (NZ) Inc. to select a mediator.

 

If the dispute has not been resolved within 20 Working Days of the dispute arising, and there is no agreement to mediate currently in force, and being actively pursued, then the dispute may be resolved by any of the following methods:

   a)  Adjudication under the CCA;

   b)  Adjudication before a Disputes Tribunal under the Disputes Tribunal Act 1988;

   c)  Arbitration under the Arbitration Act 1996; or

   d)  Legal proceedings through the appropriate Court.

 

If either party elects to have the dispute resolved by adjudication under the CCA, then once either party has served a notice of adjudication complying with the requirements of the CCA, if the other party wishes to serve its own notice of adjudication in respect of the same or a different dispute relating to the Project, it must do so within 5 Working Days of service of the first notice, and the claims arising from those notices shall be consolidated, with the same adjudicator appointed to hear each claim.

 

If the dispute is referred to arbitration then the arbitration shall be governed by the Arbitration Act 1996 but the degree of formality adopted with respect to the arbitration shall be commensurate with the amounts at stake and the issues involved. Where the Owner is a consumer as defined in the Arbitration Act 1996, this agreement to arbitrate is subject to a separate written agreement being entered into after the dispute has arisen in accordance with section 11 of that Act.

 

Notwithstanding clauses 20.4 - 20.6, nothing in this Part 20 prevents:

   a) either party from exercising any statutory rights to the extent that those rights cannot be lawfully contracted out of; or

   b) the Builder from commencing and continuing legal proceedings for the enforcement of one or more payment claims under the CCA at any time, provided that once the outcome of the underlying dispute is finally determined, any such legal proceedings must be discontinued, subject only to either party’s entitlement to costs or other incidental relief

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18.    Mortgage

The Customer agrees that should any goods or materials (“Goods”) supplied by Alder Homes be affixed or installed in a property such as to render them a fixture of that property, the Customer agrees that in consideration of Alder Homes allowing the goods to be so affixed or installed, the Customer shall upon written demand being made by Alder Homes at any time but before payment in full is made to Alder Homes, execute a Memorandum of Mortgage (“Mortgage”) over the property in which the goods have become a fixture in favour of Alder Homes (to be prepared by Alder Homes’s  solicitors at the Customer’s cost), for the amount equivalent to the unpaid balance owing plus any interest and costs owing thereon until paid in full. The terms of such mortgage shall be collateral to the terms hereof and payment in full of the amounts owing to Alder Homes hereunder shall operate as a full discharge of the mortgage. Alder Homes agrees not to make demand on the Customer to execute such a mortgage unless any of the following occur:

1. Failures to make payment on the due date;

2. Any composition with creditors, act of bankruptcy, winding up or receivership of the Customer.

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The Mortgage referred to in this clause 18 hereof shall be the ADLS form approved by the Registrar General of Land 2007/4237, and the covenants of the said form whether executed by the Customer or not shall be deemed to be included. The Customer hereby authorises Alder Homes to lodge and maintain a Caveat against the title to the property in which the goods have been affixed or installed for the protection of the agreement to mortgage described above should Alder Homes in its absolute discretion consider it necessary to lodge such a Caveat.  The Customer hereby grants to Alder Homes an irrevocable power of attorney in relation to the property in which the goods have been affixed or installed to enable Alder Homes to execute the mortgage referred to in this clause 18 hereof should the mortgage not be executed by the Customer for any reason whatsoever PROVIDED THAT Alder Homes will not execute a mortgage as attorney for the Customer unless Alder Homes has requested in writing that the Customer execute the mortgage pursuant to the terms of this agreement and the Customer has failed to execute such a mortgage within five (5) working  days of such request.

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19 Owner Default

If at any time the Owner fails to pay any sum owed to the Builder in full by the due date, the Owner shall pay interest on the amount outstanding from the due date until the date of payment. The interest rate shall be the Builder's default bank overdraft borrowing rate, or one and a half times the Builder’s non-default bank overdraft borrowing rate, whichever is the higher. The entitlement to interest is without prejudice to any of the Builder’s rights and remedies in respect of the non-payment.

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If at any time the Owner fails to pay any sum owed to the Builder in full by the due date, or any act, omission or default by the Owner effectively precludes the Builder from continuing the Building Work or performing or complying with the Builder’s obligations under this Contract, then without prejudice to the Builder’s other rights and remedies, the Builder may suspend the Building Work immediately after serving on the Owner a written notice specifying the payment default or the act, omission or default upon which the suspension of the Building Work is based. All costs and expenses incurred by the Builder as a result of such suspension and any recommencement shall be payable by the Owner as if they were a Variation.

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If pursuant to any right conferred by this Contract the Builder suspends the Building Work and the default that led to that suspension continues unremedied for at least 40 Working Days, the Builder shall be entitled to cancel this Contract.

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If at any time the Owner has failed to comply with any of the Owner’s obligations under this Contract then without prejudice to the Builder’s other rights and remedies the Builder may forfeit the deposit or any sum paid in advance of the Builder’s entitlement to payment,  and apply it to any damages, costs, interest or other sums to which the Builder is entitled.

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The Owner shall be liable for all costs and expenses incurred by the Builder as a result of the Owner’s default, including but not limited to all costs of debt collection, suspension and (if applicable) recommencement of work, preparation, execution, registration and discharge of securities, and the Builder’s actual and reasonable legal costs, including those incurred in the course of litigation, adjudication, negotiation, mediation, arbitration or any other method of dispute-resolution.