Terms & Conditions

PLEASE READ BELOW PRIOR TO ACCEPTING THE ESTIMATE

The following Terms and Conditions are applicable to the provision of building and construction services and building materials (“the Work”) by PROFESSIONAL TRADE SERVICES NZ LTD hereinafter referred to as “PTSNZ”). No other terms, conditions or deviations from these terms and conditions shall be binding unless accepted in writing by an authorised representative of PTSNZ. 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.

  1. Plans and Specifications Copyright and ownership in all drawings, specifications and other technical information provided by PTSNZ in connection with the contract is vested in PTSNZ. Where PTSNZ has followed plans and specifications provided by the Customer or their agent, the Customer shall indemnify PTSNZ against all damages, penalties, costs, and expenses in respect of which PTSNZ may become liable through the utilisation of those plans and specifications.
  2. Estimation and Acceptance PTSNZ shall produce a formal estimation for the Customer for the work required. The estimation 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 fourteen (14) days from the date specified on the estimation. The Customer shall accept the estimate by clicking Accept on the Xero Estimate they will receive via email or contacting the PTSNZ Office to arrange for PTSNZ Staff to bring the Estimate in hard copy for the customer to sign. The acceptance of the estimation in the manner specified in this clause shall constitute a binding contract and acceptance of the terms and conditions contained herein.
  3. Variations Except as expressly provided in these terms and conditions, no variation or alteration to the scope of the Work Required shall be binding on the parties unless recorded in writing and signed by both parties, including any adjustment to the contract price. 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.
  4. Cancellation In the event that the Customer wishes to cancel the contract for the Work Required at any time after acceptance of the estimate, the Customer shall pay all actual and reasonable costs and expenses incurred by PTSNZ 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 PTSNZ. PTSNZ 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 PTSNZ pursuant to this clause shall not affect PTSNZ’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 PTSNZ under these Terms and Conditions.
  5. Price The price of the Work Required shall be the price stated in the estimation together with all extras selected by the Customer and subject to variation in accordance with clause 3. The price estimated for the Work Required excludes GST. GST shall be payable by the Customer in addition to the price estimated. 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. Notwithstanding anything contained in this clause or the estimation, 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 estimation 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 PTSNZ.
  6. Payment Payment for all invoices is due five (5) days after the invoice date. PTSNZ reserves the right to charge interest on all overdue accounts at
    the Monthly rate of 1.75% of the total overdue amount until the date when payment is made and all expenses and costs (including legal costs between solicitor and client and debt collection fees) incurred by PTSNZ 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 PTSNZ.
  7. Commencement and Completion The Customer acknowledges that any estimates as to the time frames for the commencement and completion of the Work Required are approximate only. PTSNZ will use all reasonable endeavours to ensure the Work Required is commenced and completed within the time frame specified but shall not be liable for any delay or failure to do so. PTSNZ 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 PTSNZ and resulting from such delays will be charged as a variation to the contract price.
  8. Repair of Defects Where the Work Required undertaken is of a Commercial nature PTSNZ shall at its sole cost rectify any defects in the materials or workmanship which are notified to PTSNZ within ninety (90) days of completion of the Work Required and within a reasonable time of receiving written notification of those defects.PTSNZ shall not be liable under this clause to remedy:
    - defects covered by a manufacturers 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 Work Required is of a Residential nature any notification by the Customer in writing to PTSNZ within twelve (3) months from the completion of the Work Required shall be rectified by PTSNZ at PTSNZ’s costs within a reasonable time of notification by the Customer of the defect.PTSNZ shall not be liable under this clause to remedy:
    - defects covered by a manufacturers 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 PTSNZ shall be at the sole risk of PTSNZ until payment for goods and delivery of the goods to the Customer. If the Work Required 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.
  10. Ownership Ownership of any goods and/or materials supplied as part of the Work Required shall not pass to the Customer until all amounts owing by the Customer to PTSNZ in respect of the goods and/or materials have been paid in full.
  11. Warranty and Liability The warranties, descriptions, representations, or conditions whether implied by law, trade, custom or otherwise are, and all other liability of PTSNZ, whether in tort (including negligence), PTSNZ or otherwise is, expressly excluded to the fullest extent permitted by law. Insofar as PTSNZ may be liable, notwithstanding anything contained in these Terms and Conditions, to the extent permitted by law the total liability of the contract whether in tort (including negligence), PTSNZ or otherwise for any loss, damage or injury arising directly or indirectly out of completion of the Work Required or any other breach of PTSNZ’s obligations is limited to the lesser of:(a) to the price of goods and/or materials complained of;
    (b) the cost of completing any necessary repairs/remedial work; or (c) the actual loss or damage suffered by the Customer.Except where statue expressly requires otherwise PTSNZ 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
  12. Collection and Use of Information The Customer authorises PTSNZ 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 PTSNZ 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.
  13. Miscellaneous PTSNZ shall not be liable for delay or failure to perform its obligations if the cause of the delay or failure is beyond its control. Failure by PTSNZ 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 PTSNZ 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 PTSNZ.
  14.  Personal Guarantee In consideration for PTSNZ agreeing to complete the Work Required 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 PTSNZ the payment of any and all moneys owed by the Customer to PTSNZ and indemnify PTSNZ against non-payment by the Customer.
  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.
  16. Agency The Customer authorises PTSNZ to contract either as principal or agent for the provision of goods or services. Where PTSNZ enters a contract of the type referred to this clause the Customer agrees to pay any amounts due under that contract.
  17.  Dispute Resolution In the event of a dispute or disagreement arising between PTSNZ and the Customer the party with a grievance may give written notice to the other party specifying the nature of the dispute or disagreement, the remedy sought and requiring that the dispute or disagreement be determined and settled in accordance with this clause. On receipt of the notice, the parties shall each appoint a representative who has authority to determine the grievance or dispute, and those two representatives shall meet as soon as reasonably possible to see if they can determine the grievance. All discussions, meetings, and correspondence between the two representatives shall be deemed without prejudice and without concession of liability and shall not be used by either party in any later proceedings unless:
    1. (a)  Both parties agree, or
    2. (b)  The two representatives reach agreement, but one party fails to honour such agreement.

    If the two representatives cannot within fourteen (14) days of being appointed reach agreement on how the grievance or dispute is to be determined, the parties shall refer the dispute to an independent expert who is acceptable to both parties. If the parties cannot or do not agree on an independent expert within three (3) days of the first suggestion of a suitable person, either party may ask the President of the New Zealand Registered Master Builders Federation to nominate a person to act as an independent expert and the first person so nominated who is able and willing to be appointed shall be deemed the independent expert for the purposes of this clause. The independent expert shall:

    1. (a)  Set his or her own rules and procedure for the resolution of the grievance or disagreement
    2. (b)  At all times act in good faith and in an unbiased way
    3. (c)  Promptly hear and determine the dispute
    4. (d)  Provide a written decision (with reasons for that decision) if requested by either party.

    The independent expert’s:
    (a) Decision shall be binding on both parties:
    (b) Costs shall be paid equally by the parties unless the independent expert decides otherwise in his or her decision. Notwithstanding

    anything contained in clause 17, disputes in excess of ten thousand dollars ($10,000.00) shall be referred at PTSNZ’s sole discretion to arbitration under the Arbitration Act 1996 or any subsequent Act passed in its place.

  18. Mortgage The Customer agrees that should any goods or materials (“Goods”) supplied by PTSNZ be affixed or installed in a property such as to
    render them a fixture of that property, the Customer agrees that in consideration of PTSNZ allowing the goods to be so affixed or installed, the Customer shall upon written demand being made by PTSNZ at any time but before payment in full is made to PTSNZ, execute a Memorandum of Mortgage (“Mortgage”) over the property in which the goods have become a fixture in favour of PTSNZ (to be prepared
    by PTSNZ’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 PTSNZ hereunder shall operate as a full discharge of the mortgage. PTSNZ agrees not to make demand on the Customer to execute such a mortgage unless any of the following occur:

    1. (a)  Failures to make payment on the due date.
    2. (b)  Any composition with creditors, act of bankruptcy, winding up or receivership of the Customer.

    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 PTSNZ 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 PTSNZ in its absolute discretion consider it necessary to lodge such a Caveat.

    The Customer hereby grants to PTSNZ an irrevocable power of attorney in relation to the property in which the goods have been affixed or installed to enable PTSNZ 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 PTSNZ will not execute a mortgage as attorney for the Customer unless PTSNZ 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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