Terms & Conditions
The following terms shall be incorporated into every contract between RVD Building Limited (“us”, “we” or “our”) and the customer for the supply by us of goods or services unless specifically excluded in writing. No variation of these terms will be binding on us unless made in writing. In the event of inconsistency between these terms or any quotation or other agreement entered into between us and you, then these terms shall take precedence at all times.
1. DEFINITIONS
“Customer” means the customer, any person acting on behalf of and with the authority of the customer, or any person purchasing goods and/or services from us. “Defect” means a fault or flaw in the workmanship or materials provided by us that consists of:
● workmanship that has not been carried out in a competent manner and with reasonable skill and care.
● a significant, adverse and unauthorised departure from what was prescribed by the drawings and specifications.
● in matters not specifically prescribed by the drawings and specifications, a material and unauthorised departure from manufacturer’s tolerances (if manufacturer’s tolerances are not available, then current tolerance schedules published by the Ministry of Business Innovation and Employment will apply, and if they are going not available then current tolerance schedules published by New Zealand Standards will apply). “Latent Condition” means any physical condition on or below or within the site, or the area surrounding the site, which differs materially from the physical conditions which could reasonably have been expected by us at the time our quotation was provided. “Substantial Completion” means when the Works or a stage of the Works is 95% complete. “Works” means the work we are to carry out in accordance with the quotation or any agreed contract documents, including variations and design work carried out by is.
2. WARRANTIES
2.1 We warrant that the Works we are responsible for will be carried out:
a. In a proper and competent manner;
b. With reasonable care and skill;
c. In accordance with any building consents and, where applicable, drawings and specifications (as amended, where applicable);
d. Using materials that are fit for purpose;
e. Using materials that are new (unless agreed otherwise); and
f. In accordance with all applicable laws and legal requirements.
2.2 We are not responsible for manufacturer’s faulty products, but:
a. if we have supplied the product and it fails we will deal with the manufacturer to correct the problem; and
b. if the Customer provides materials or fittings and they fail, then any work by us to rectify is chargeable by us on an actual cost incurred plus a reasonable margin basis.
2.3 We are not responsible for any loss or damage caused to the Works or the site as the result of any temporary works such as tarpaulins or other temporary weathertightness coverings becoming detached (due to bad weather or otherwise), except and only to the extent that the loss or damage was caused by a failure to exercise reasonable care and skill in relation to the temporary works.
2.4 Where the Works are “building work” for the Customer in relation to a household unit for the purpose of section 362B of the Building Act 2004 (“residential building contract”), the implied warranties set out in sections 362I to 362K of the Building Act 2004 apply.
2.5 Proceedings for a breach of the implied warranties may be taken by a non- party to the contract in accordance with section 362I of the Building Act 2004.
2.6 In accordance with section 362K of the Building Act 2004, no provision in the contract restricts or removes the right of a person to take proceedings for a breach of any of the warranties set out in section 362J in so far as the provision relates to a breach other than a breach that was known, or ought reasonably to have been known, by the person to exist at the time the agreement or instrument was executed.
3. INSURANCE
3.1 We will effect and maintain a public liability insurance policy for an amount of not less than $2,000,000. The policy will be kept continuously in force until any work required to remedy defects has been completed.
3.2 If the Works are new construction or involve the alteration, addition or repair of an existing building, the Customer must effect and maintain a policy of insurance for contract works.
3.3 Where requested in writing, a party liable to insure must provide satisfactory evidence as to the existence, maintenance and terms of any insurance policy.
4. VARIATIONS
4.1 Prior to Substantial Completion, the Customer may order any variation to the Works that:
a. increases or decreases the scope of the Works;
b. omits any work; or
c. changes the nature, position, location, or quality of any work or materials.
4.2 We may claim a variation for any Latent Condition that becomes apparent after the Works have commenced and/or if in our opinion any work areas are not ready for our work to commence despite the Customer asking us to commence work and we suffer any increased costs (including without limitation, administration costs) as a result.
4.3 The Customer shall not, without our consent, remove work from the Works to have that work carried out by another contractor or the Customer.
4.4 The parties’ written agreement to vary the Works must:
a. state the scope of work the subject of the variation;
b. state the price of the Variation or how the price of the variation is to be calculated; and
c. be approved by both parties.
4.5 Wherever practicable, the matters in clause 4.4 above shall be agreed before any variation work is commenced, but any failure to do so will not invalidate the variation or our entitlement to be paid the reasonable value of the variation and to a reasonable extension of time for completion of the Works.
4.6 The contract sum or quotation price is to be adjusted by the price of a variation and the adjustment shall be included by us in our next or any subsequent payment claim. To price a variation there is a one-off cost of$150 or 5% of the variation value, whichever is greater. The lesser of these costs is payable even if the Customer does not go ahead with the variation to meet our costs of administration.
5. EXTENSIONS OF TIME
5.1 Without limiting our other rights and remedies, we are not liable for any delay caused by:
a. variations or additional work;
b. a failure or delay on the part of the Customer in complying with their obligations under this contract, including but not limited to a delay in:
i. paying the contract deposit;
ii. providing proof of finance;
iii. providing proof of insurance;
iv. obtaining sufficient title;
v. obtaining consents;
vi. ensuring all necessary services are available at the Site; or
vii. providing us with access to and possession of the site for the purpose of carrying out the Works,
c. any other delays (or problems resulting in delays) in matters that the Customer is responsible for {including problems or delays caused by other persons contracted by the Customer);
d. suspensions of the works under clause 8.3;
e. delays on the part of a consenting or territorial authority;
f. inclement weather;
g. unforeseen health and safety requirements;
h. where, despite our reasonable endeavours, subcontractors are unavailable;
i. where, despite our reasonable endeavours, materials are unavailable;
j. unforeseen physical conditions;
k. unexpected conditions of any existing structure being built onto;
l. any matter covered by the force majeure provisions of this building contract;
m. industrial action (e.g. strikes or lockouts);
n. dispute resolution procedures invoked by either party in circumstances that, in our reasonable opinion, make it impracticable for us to proceed as otherwise planned;
o. legal proceedings, relating to the Works, commenced or threatened by a third party in circumstances that, in our reasonable opinion, make it impracticable for us to proceed as otherwise planned; or
p. any other matter outside our reasonable control.
5.2 Where a delay under clause 6.1 has occurred, we shall be entitled to an extension of time to complete the Works and, acting reasonably, to amend any expected completion date provided. We shall, within a reasonable time after the delay becomes apparent, issue a notice to the Customer setting out any amended expected completion date.
5.3 Where a delay under clause 6.1 has occurred and we have incurred additional costs from the delay, we shall be entitled to a Variation.
6. PAYMENT
6.1 We may serve on the Customer an invoice and/or a payment claim in accordance with Part 2 of the Construction Contracts Act 2002 by email or post in respect of:
a. a deposit; and/or
b. in respect of any costs and expenses incurred by us in making an application for, and/or uplifting any consents in relation to the Works, including but not limited to the costs of obtaining such approvals and professional advice, reports, plans, and drawings as may be necessary in the circumstances and all fees, expenses and levies charged by the building consent authority together with our associated administration and processing costs; and/or
c. on Substantial Completion of the Works; or
d. on Substantial Completion of any stages of the Works, if the Works have been separated into stages; or
e. by way of progress claims during each monthly period commencing on the day of the month in which the Works were first carried out and ending on the last day of that month, and each month after that first period.
6.2 The due date for payment of a payment claim is seven (7) calendar days after the relevant payment claim is served on the Customer (“the Due Date”).
6.3 If the Customer intends to pay less than the amount claimed in a payment claim, then the Customer must respond to the payment claim by providing a payment schedule in accordance with Part 2 of the Construction Contracts Act 2002 to us within five (5) calendar days after the date the payment claim is received.
6.4 Any payment schedule issued by the Customer must comply with the requirements of the Construction Contracts Act 2002 and may only be sent by way of email to info@rvdbuilding.co.nz.
7. DEFAULT
7.1 If the Customer does not make payment on the Due Date, the Customer shall be liable to pay:
a. default interest at the rate of 2% per month compounding, which shall accrue on a daily basis on the total amount outstanding from the Due Date to the date of payment in full; and Terms of Trade – RVD Building Limited
b. any legal costs on a solicitor/client basis that we incur incidental to the enforcement or attempted enforcement of our rights, remedies and powers under these Terms of Trade.
7.2 Payment of all payment claims/invoices shall be without set-off, deduction or withholding of any kind.
7.3 If the Customer fails to pay any amount owing on the Due Date and any such default continues for five (5) calendar days then we shall be entitled to immediately suspend the Works without notice and such suspension shall be on the same basis as if it were a suspension under section 24A(2) and (3) of the Construction Contracts Act 2002.
8. PRICE
8.1 Where a price is given by us for goods and services:
a. The price shall be valid for thirty (30) days from the date of issue; and
b. We reserve the right to alter our price where it has been submitted based on plans or information which has been altered and/or changes have been made that would affect the measurements on which our price has been calculated and/or has been based upon work in an area of a building that has not been viewed until the work is undertaken and/or if a Latent Condition exists or circumstances exist beyond our control which will delay the efficient execution of the Works.
9. TITLE
9.1 The Customer undertakes that they have title or other legal entitlement to the land to allow the Works to be carried out.
9.2 Title in the goods passes to the Customer when the Customer has made payment in full without set-off, deduction, or withholding for all goods supplied by us.
9.3 The Customer gives irrevocable authority to us to enter any premises occupied by the Customer, at any reasonable time, to remove any goods not paid for in full by the Customer.
10. DEFECTS LIABILITY PERIOD
10.1 The Customer must notify us of any Defect in writing as soon as reasonably possible after the Defect becomes apparent.
10.2 We will, at our own cost, rectify any part of the Works that is agreed by both parties to be faulty or defective and our responsibility, and remove and replace any materials not in accordance with our quotation or any contract documentation as directed in writing by the Customer for a period of 12 months from the date of Substantial Completion of the Works.
10.3 The Customer shall give us all necessary and reasonable access to enable us to remedy any Defect and/or replace any materials during the 12-month period from the date of Substantial Completion.
10.4 These defect provisions do not mitigate or absolve the Customer’s responsibility for maintenance.
11. LIMITATION OF LIABILITY
11.1 We shall not be liable for any delay damages (whether those are for liquidated damages or otherwise) or for any claims for loss or profits (whether direct or indirect), or loss of business opportunity or anticipated savings or for any indirect or consequential loss whatsoever.
11.2 Notwithstanding any other provision to the contrary, our total aggregate liability to the Customer arising out of or in connection with the Works whether in contract, any indemnity, tort (including negligence) by statute or otherwise at law or in equity is limited as follows:
a. to the value of our price (excluding variations and the cost of materials) for the Works; or
b. for liability arising out of events or circumstances in respect of which insurance proceeds are available under an insurance policy required to be effected by us for the Works (or would have been available had we complied with our obligations under the relevant insurance policy), the amount which is paid under that policy, or would have been paid, had we so complied, up to the limits of such insurance as we are required to have in place for the Works.
11.3 We will be responsible for the Works while they are under our care; however, (without limiting the effect of any insurance of guarantee or warranties, and subject to our obligation to use reasonable skill and care, we are not responsible for any loss or damage caused by:
a. the Customer using, occupying, or taking over any part of the Works;
b. defect in design other than by us;
c. forces of nature;
d. man-made events (e.g., war, riot or, civil commotion); or
e. man-made or natural contamination.
11.4 These clauses do not limit our liability to the extent that it:
a. cannot be limited at law; and
b. arises out of or in connection with any willful default, fraud, or criminal conduct.
12. PPSA
12.1 The Customer acknowledges that it grants a security interest (as defined in the Personal Property Securities Act 1999 (“PPSA”)) in all present and after acquired property as security for its obligations to us. The Customer must do all things including executing all documents that we require to provide us with a first ranking security interest in the goods.
12.2 The Customer waives the right to receive a copy of the verification stated under the PPSA and agrees it will have none of the rights under sections 114(1Xa), 116, 117(1Xc), 119, 120(2), 121, 125, 129, 131, 132, 133, and 134 of the PPSA. Where we have rights in addition to those in Parts 9 of the PPSA, the Customer agrees that those rights shall continue to apply and in particular will not be limited by section 109 of the PPSA.
12.3 The Customer agrees to indemnify us for any costs we incur in registering, maintaining and for enforcing the security interest created by these terms including actual legal costs on a solicitor/client basis.
12.4 The Customer must immediately notify us if it changes its name, registered office or place of business.
13. CONSUMER GUARANTEES ACT
13.1 The guarantees contained in the Consumer Guarantees Act 1993 are excluded where the Customer acquires goods or services from us for the purposes of a business in terms of sections 2 and 43 of that Act.
14. OWNERS WORK OR MATERIALS
14.1 These provisions will apply whenever any part of the Works is undertaken by the Customer with our consent or any materials forming part of the Works are supplied by the Customer with our consent. That consent must be written and will be at our sole discretion.
14.2 We may insure any Customer’s work and materials under our insurance (doing so at the Customer’s cost), The Customer will ask us (in writing) whether we have the insured Customer’s work and materials; and if not, the Customer must insure its own work and materials.
14.3 Any work undertaken by the Customer must be executed in accordance with a timetable provided to the Customer by us and must be undertaken strictly in accordance with the building consent, the drawings and specifications, the Building Act 2004 and the relevant regulations, including the Building Code, and any directions given by us. Any occupation of the Works by the Customer for this purpose will only be temporary.
14.4 If the Customer fails to undertake relevant work strictly in accordance with clause 15.3, we will be entitled to rectify that failure (to make good any defect), Where we incur any additional costs under this clause, such additional costs shall be a Variation.
14.5 Where we give our consent to any specific work or materials being supplied by the Customer, and we incur additional labour or costs from the Customers activity which are not provided for in the contract price, such additional costs shall be a Variation.
14.6 We are not liable for any loss or damage or defect or maintenance if it relates to work performed by the Customer or the Customer’s agent (unless that agent is ours or our subcontractor who is acting under our).
14.7 If any loss or damage arises from any materials supplied by the Customer (whether installed by us or the Customer), the Customer will be liable for that loss or damage.
14.8 When the Customer is undertaking work under this clause 15, the Customer must:
a. take all practical steps to prevent harm to us and our subcontractors;
b. comply with health and safety legislation; and
c. make all reasonable endeavours to ensure its agents comply with health and safety legislation.
15. MISCELLANEOUS
15.1 We may subcontract any portion of the Works but may not assign or sublet the whole of the Works without the Customer’s written consent.
15.2 The Customer is responsible for providing utilities (such as electricity and water), including final connection costs to such utilities. We shall be entitled to reasonable use of such utilities for the Works. Unless expressly provided for in the contract price, if we incur costs in accessing and using utilities (such as electricity and water) then we shall be entitled to a Variation.
15.3 Unforeseen physical conditions may include artificial obstructions and weather conditions at or away from the Site, The Customer acknowledges that we have not, and could not have, allowed for such unforeseen physical conditions in the contract price. The Customer indemnifies us against any claim made against us by any person for damages or expenses incurred by reason of unforeseen physical conditions.
15.4 The Customer shall not make any claim against any individual employee or employees or director of our company for any costs, losses or damages sustained by the Customer arising from the Works.
15.5 If any provision of these Terms of Trade shall be invalid void or illegal or unenforceable the validity existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
15.6 Subject to section 362V of the Building Act 2004, the Customer must obtain and pay for any Code Compliance Certificate for the Works. Unless otherwise agreed in writing, we are not responsible for obtaining a Code Compliance Certificate and we are entitled to issue our final payment claim for payment irrespective of whether a Code of Compliance Certificate has or has not been issued.
15.7 If the quotation is not signed, then the Customer will be deemed by its conduct to have accepted these Terms of Trade if the Customer asks us verbally or in writing to commence any part of the Works and/or the Customer pays any required deposit. If the Customer is a body corporate, we will not be obligated to commence the Works until we have received a fully signed Guarantee and Indemnity.
15.8 Neither party shall be liable for any default due to any act of God, war, terrorism, fire, flood, drought, storm, pandemic, or other event beyond their reasonable control.
15.9 Our failure to enforce any provision of these Terms of Trade shall not be treated as a waiver of that provision, nor shall it affect our right to subsequently enforce that provision.
15.10 Acceptance of this quotation is an acknowledgement by us and the Customer that we have supplied, and the Customer has received, the disclosure information and checklist prescribed in regulation 5 of the Building (Residential Consumer Rights and Remedies) Regulations 2014.
16. NOTICES
16.1 Notices under this contract must be in writing and may be provided by email to the email addresses provided for in these terms or provided by either party for this purpose.