Our Terms of Trade
In these Terms of Trade we have used we, us, and our to refer to Creative Crete Limited and you to refer to our Customer. By ordering Work from us, you (if any).
1. OWNERSHIP, RISK AND DELIVERY OF GOODS
1.1 Ownership of Goods supplied under these Terms of Trade
remains with us until payment for the Goods is made in full.
1.2 Delivery occurs at the time possession of the Goods passes to you (or a person nominated by you) from us. The risk in Goods
supplied passes to you on delivery.
2.1 Unless stated otherwise, any price we give you for Work is an estimate (Estimate) on a plus GST basis of the anticipated cost for us to complete that Work. The Estimate is subject to clause 3 below.
2.2 The Estimate is open for acceptance for 30 days after it is dated unless withdrawn by us prior to acceptance.
2.3 We will not commence the Work until you have accepted the Estimate in writing and signed a copy of these Terms of Trade.
3.1 Notwithstanding any Estimate given, unless we have agreed in
writing to be bound by a set price for the Work, you will pay to us our actual cost of completing the Work (Actual Cost) which will be calculated by totalling the following:
(a) the number of hours of service multiplied by the hourly rates
for the workers involved on the date which the Work is undertaken or if the supply occurs over more than one day, the relevant hourly rates on the last day on which services are rendered;
(b) any disbursements (including without limitation delivery costs) incurred by us on your behalf;
(c) the cost of any Goods supplied by us as part of the Work.
3.2 The Actual Cost and all prices are plus GST and other taxes which
are payable by you in New Zealand dollars.
3.3 Disbursements incurred by us on your behalf may include a
reasonable mark-up by us.
3.4 In the event these Terms of Trade are terminated in accordance
with clause 10.2(d) prior to completion of the Work, you must immediately pay us the Actual Cost at the termination date plus 50% of the balance of the part of the Estimate that relates to the current stage of the Work as described in the agreed task description of the Work.
3.5 We require a non-refundable deposit of 50% prior to commencing any Work.
4. TERMS OF PAYMENT
4.1 We may require you to pay a deposit, being an advanced
payment for the Work, before we commence the Work.
4.2 Payment for the Work (and any associated expenses and disbursements) is due on the 20th day of the month following the date of our invoice except where we have agreed in writing that
other terms will apply (Due Date).
4.3 If you do not make payment on the Due Date, you are in default
and must pay default interest at the rate of 10% per annum, which will accrue on a daily basis on the total amount outstanding from the Due Date to the date of payment in full.
4.4 Notwithstanding clause 4.3, if payment is outstanding for 7 days from the Due Date, we may suspend performing the Work on credit until the date of payment in full (subject always to clause 4.5). You must pay in cash for any Work done by us until payment is made in full (together with any accrued interest).
4.5 We may notify you at any time that we have ceased to carry out the Work on credit. This cessation does not relieve you for amounts owing up to the date on which the contract is terminated.
4.6 Payment of all money will be without set-off or deduction of any kind.
4.7 We will apportion payments to outstanding accounts as we think fit.
5. SPECIAL PROVISIONS FOR RESIDENTIAL WORK
5.1 Where you are a residential occupier, we may issue payment
claims that comply with the CCA.
5.2 If you to pay less than the amount specified in the payment claim
you must, not later than the day on which the payment would otherwise have been due, issue a payment schedule that complies with the CCA.
5.3 Our remedies under the CCA are without prejudice to any other remedies we have at law or under these terms.
6. PERFORMANCE OF WORK
6.1 We will:
(a) perform the Work with reasonable skill, care and diligence in a professional manner;
(b) endeavour to ensure that the Work is performed in accordance with any time frames agreed in writing with you;
(c) liaise with you during the course of performing the Work in
accordance with your reasonable requirements.
6.2 You will give reasonable assistance to enable us to perform the
(a) giving clear instructions;
(b) promptly providing any information or content required
from you for us to complete the Work;
(c) ensuring that the Work and products derived from the Work
are fit for the purpose you intend to use them for and meet any appropriate statutory, regulatory, governmental and industry and environmental controls, standards or practices.
6.3 If we have given you a time frame for completion of the Work, unless agreed in writing to the contrary such time frame is approximate only and is not deemed to be of the essence of the contract.
6.4 We will not be liable for any failure or delay to perform the Work if the failure or delay arises directly or indirectly from a cause reasonably beyond our control.
6.5 You accept that our samples may not precisely match the finished product (e.g. colour and texture may vary).
6.6 You must supply any cast-in items (e.g. metalwork, sinks, taps ,etc) in advance to ensure accurate cut-outs.
7. PERSONAL PROPERTY SECURITIES ACT 1999 (PPSA)
7.1 All terms in this clause 7 have the meaning given in the PPSA and
7.2 Clause 1.1 creates a security interest in Goods we supply to you as part of the Work.
7.3 You will not grant any other security interest or any lien over Goods that we have a security interest in.
7.4 At our request you will promptly sign any documents and do anything else required by us to ensure that our security interest constitutes a first ranking perfected security interest in the Goods.
7.5 We may at any time enter your premises and properties to uplift Goods that we have a security interest in.
7.6 If Goods that we have a security interest in are processed, included or dealt with in any way causing them to become accessions, processed or commingled goods, our security interest will continue in the whole in which they are included. You will not grant any other security interest or any lien in either the Goods or in the whole.
7.7 You waive any rights you may have under sections 114(1)(a), 116, 120(2), 121, 125, 129, 131, and 133 of the PPSA.
7.8 You waive your right to receive a copy of any verification statement (as that term is defined in the PPSA).
7.9 You will give us prior written notice of a proposed change of your name or address.
8.1 You acknowledge that our handmade and hand finished concrete
products will have naturally occurring qualities including but not limited to variations in texture, dimension and colour. Cracking is normal and where structural integrity of the product is not compromised will not be considered a defect.
8.2 Concrete products can be damaged by you if you do not treat them carefully. We are not liable for any damage (including but not limited to chipping and/or staining) that has been caused by you.
8.3 Any defects in the Works must be notified to us in writing within 30 days of the date the Work is completed. On receipt of written notification we will endeavour to remedy the defect within 30 working days (or such longer period of time as may be reasonable in the circumstances).
9. LIMITATION OF LIABILITY
9.1 The Consumer Guarantees Act 1993, the Fair Trading Act 1986,
and other statutes may impose warranties, conditions or obligations on us which cannot by law (or which can only to a limited extent by law) be excluded. We exclude all such imposed warranties, conditions or obligations to the extent permitted by law and exclude any warranty, condition or obligation imposed or implied under common law, equity or otherwise.
9.2 Where you acquire goods and/or services from us for the purposes of a business:
(a) the parties acknowledge and agree that:
(i) you are acquiring the goods and/or services covered by
these Terms for the purposes of a business in terms of sections 2 and 43(2) of the Consumer Guarantees Act 1993;
(ii) the goods and/or services are both supplied and acquired in trade from the purposes of the Fair Trading Act 1986 and the parties agree to contract out of sections 9 (Misleading and deceptive conduct generally), 12A (Unsubstantiated representations), and 13 (False or misleading representations); and
(b) you agree that all warranties, conditions, and other terms implied by the Consumer Guarantees Act 1993 or sections 9, 12A, and 13 of the Fair Trading Act 1986 are excluded from these Terms to the fullest extent permitted by law and the parties further acknowledge and agree that it is fair and reasonable that the parties are bound by this clause.
9.3 Except to the extent that the law prevents us from excluding liability and as expressly provided for in clause 9.4, we will not be liable for any loss or damage or liability of any kind whatsoever (including consequential loss or lost profit or business) whether suffered or incurred by you or another person and whether in contract, or tort (including in negligence), or otherwise and whether such loss or damage arises directly or indirectly from Work or Goods provided by us to you.
9.4 To the extent that we are liable for any reason for any loss suffered or liability incurred by you arising from any breach of these Terms of Trade or for any other reason, such liability is limited to the amount of the Actual Cost. If Goods are returned by you, or if you make a claim in writing to us in relation to the Goods or services provided under the Work, we may, in our discretion, repair or replace the Goods or re-perform the services, or refund the amount of those Goods or services to you, provided that:
(a) the Goods must be returned or the claim must be made in writing to us within fourteen (14) days of the Goods or services being provided; and
(b) you must supply the date and number of any invoice relating to the Work; and
(c) we must have a reasonable opportunity to inspect the Work. 9.5 We are not liable for:
(a) any materials (including suitability of or defects in) supplied by a third party; or
(b) supporting structures (including suitability of or defects in) installed by a third party.
10.1 The security interests created by these Terms of Trade become
enforceable if any of the following events occur:
(a) you fail to pay any money owing on the Due Date;
(b) you sell, part with possession or dispose of any Goods or do
anything inconsistent with our ownership of the Goods prior
to making payment in full to us;
(c) we believe you have committed or will commit an act of
bankruptcy, have had or are about to have a receiver or
liquidator appointed, or are declared insolvent;
(d) the Goods are at risk, as that term is defined in the PPSA;
agree to these Terms of Trade to the exclusion of your terms
(e) you neglect or fail to carry on your business to our reasonable satisfaction, or if there is a significant deterioration in your trading or asset position;
(f) you are otherwise in breach of your obligations under these Terms of Trade.
10.2 If any of the events described in clause 10.1 occur, in addition to any remedies we may have at law, we may do one or more of the following:
(a) suspend the Work in accordance with clause 4.4;
(b) charge default interest in accordance with clause 4.3;
(c) enter on to your premises and repossess any Goods which
have not been paid for in full;
(d) immediately terminate these Terms of Trade by notice in
writing to you.
10.3 You must pay our costs (including legal costs, as between solicitor
and client) of and incidental to the enforcement or attempted enforcement of our rights, remedies and powers under these Terms of Trade.
10.4 Nothing in the foregoing clauses affects the rights of any person under the CCA.
11. INTELLECTUAL PROPERTY
11.1 In respect of Intellectual Property used in or arising from the
production of the Goods or the performance of the Work, all pre- existing Intellectual Property the subject of an Intellectual Property right resides with the owner as at the date of these Terms of Trade (whether you or us);
11.2 If any Work is to be undertaken based on your designs, you warrant that the undertaking of the Work by us will not infringe any third party's Intellectual Property rights and you indemnify us against any loss, liability, costs and expenses in the event of any claim being made that the Work infringes any patent, copyright or other rights of any other person.
12. PRIVACY OF INFORMATION
12.1 You authorise us:
(a) to collect, retain and use information about you from any person for the purpose of assessing your creditworthiness;
(b) to disclose information about you:
(i) to any person who guarantees, or who provides
insurance, or who provides any other credit support, in
relation to your obligations to us;
(ii) to such persons as may be necessary or desirable to
enable us to exercise any power or enforce or attempt to enforce any of our rights, remedies and powers under these Terms of Trade.
12.2 You consent to us and any financier or credit-rating agency making enquiries of and obtaining any information about your financial standing and creditworthiness.
13.1 Any notice may be given by phone, in person, posted, or sent by
fax or email to you (or where you are a company, to any of your
14.1 You will at all times treat as confidential all non-public information and material received from us and must not publish, release, or disclose the same without our prior written consent. For clarity, confidential information includes any new Intellectual Property and prices.
15.1 These Terms of Trade are governed by and construed according
to the laws of New Zealand and the parties, subject to clause 16, submit to the non-exclusive jurisdiction of the courts of New Zealand in respect of any dispute or proceeding arising out of these Terms of Trade.
16.1 Any claim or dispute arising under these Terms of Trade will be
determined by arbitration under the Arbitration Act 1996 if the parties are unable to resolve such dispute themselves within one (1) month of the dispute arising. However, nothing in this clause prevents either party from taking immediate steps to seek any equitable relief before the New Zealand Courts.
16.2 Nothing in the foregoing clauses affects the rights of any person under the CCA.
17.1 In these Terms of Trade unless the context otherwise requires:
CCA means the Construction Contracts Act 2002.
Goods has the meaning given to it in the Personal Property Securities Act 1999.
Intellectual Property includes all intellectual property rights (including without limitation copyright, patent and design rights, drawings, documents, data, ideas, procedures and calculations). Work means our performance of services for you, and the production or supply of any Goods by us as part of or related to such services, as described on the front page of these Terms of Trade.
17.2 The rule of construction known as the contra proferentem rule does not apply to these Terms of Trade.
17.3 References to us include our employees, contractors and agents.
17.4 Words referring to the singular include the plural and vice versa.
17.5 Any reference to a party includes:
(a) that party's executors, administrators, or permitted assigns; or
(b) if a company, limited partnership, or any other body corporate, its successors or permitted assigns or both.
17.6 Clause headings are for reference only.
17.7 References to clauses are references to clauses of these Terms.
17.8 References to money will be New Zealand currency, unless
17.9 Expressions referring to writing will be construed as including
references to words printed, typewritten or otherwise visibly
represented, copied or reproduced (including by fax or email).
17.10 References to statutory provisions will be construed as references to those provisions as amended or re-enacted or as their application is modified by other provisions from time to
section references will be to sections of the PPSA.