1. Definitions

1.1           “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.

1.2           “Bays Joinery” means Bays Joinery Ltd, its successors and assigns or any person acting on behalf of and with the authority of Bays Joinery Ltd.

1.3           “Client” means the person/s, entities or any person acting on behalf of and with the authority of the Client requesting Bays Joinery to provide the Services as specified in any proposal, quotation, order, invoice or other documentation, and:

1.4           “Goods” means all Goods or Services supplied by Bays Joinery 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).

1.5           “Confidential Information” means information of a confidential nature whether oral, written or in electronic form including, but not limited to, this Contract, either party’s intellectual property, operational information, know-how, trade secrets, financial and commercial affairs, contracts, client information (including but not limited to, “Personal Information” such as: 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) and pricing details.

1.6           “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 Bays Joinery’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.

1.7           “Price” means the Price payable for the Goods (plus any Goods and Services Tax (“GST”) as agreed between Bays Joinery and the Client in accordance with clause 5 below.

2.  Acceptance

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 that the supply of Goods on credit shall not take effect until the Client has completed a credit application with Bays Joinery and it has been approved with a credit limit established for the account.

2.5           In the event that the supply of Goods request exceeds the Client’s credit limit and/or the account exceeds the payment terms, Bays Joinery reserves the right to refuse Delivery.

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. Errors and Omissions

3.1           The Client acknowledges and accepts that Bays Joinery shall, without prejudice, accept no liability in respect of any alleged or actual error(s) and/or omission(s):

3.2           In the event such an error and/or omission occurs in accordance with clause 3.1, and is not attributable to the negligence and/or wilful misconduct of Bays Joinery; the Client shall not be entitled to treat this Contract as repudiated nor render it invalid.

4. Change in Control

4.1           The Client shall give Bays Joinery 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 Bays Joinery as a result of the Client’s failure to comply with this clause.

5. Price and Payment

5.1           At Bays Joinery’s sole discretion the Price shall be either:

5.2           Bay Joinery reserves the right to change the Price:

5.3           Variations will be charged for on the basis of Bay Joinery’s quotation, and will be detailed in writing, and shown as variations on Bay Joinery’s invoice. The Customer shall be required to respond to any variation submitted by Bay Joinery within ten (10) working days. Failure to do so will entitle Bay Joinery 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.

5.4           At Bay Joinery’s sole discretion, a non-refundable deposit will be due, prior to commencement of the Services. The deposit amount or percentage of the Price due will be stipulated at the time the order for the Goods/Services is placed and shall become immediately due and payable.

5.5           Time for payment for the Goods being of the essence, the Price will be payable by the Client on the date/s determined by Bays Joinery, which may be:

5.6           Payment may be made by cash, or internet banking, or by any other method as agreed to between the Client and Bays Joinery.

5.7           Bays Joinery may in its discretion allocate any payment received from the Client towards any invoice that Bays Joinery determines and may do so at the time of receipt or at any time afterwards. On any default by the Client Bays Joinery may re-allocate any payments previously received and allocated. In the absence of any payment allocation by Bays Joinery, payment will be deemed to be allocated in such manner as preserves the maximum value of Bays Joinery’s Purchase Money Security Interest (as defined in the PPSA) in the Goods.

5.8           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 Bays Joinery nor to withhold payment of any invoice because part of that invoice is in dispute,unless the request for payment by Bays Joinery is a claim made under the Construction Contracts Act 2002.

5.9           Unless otherwise stated the Price does not include GST. In addition to the Price the Client must pay to Bays Joinery an amount equal to any GST Bays Joinery must pay for any supply by Bays Joinery under this or any other agreement 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.

6. Delivery and Risk

6.1           At Bays Joinery’s sole discretion, any costs of delivery may be charged additionally to the Client.

6.2           The Client must take delivery of the Goods, either by receipt or collection, whenever they are tendered for delivery. In the event that the Client is unable to take delivery of the Goods as arranged then Bays Joinery shall be entitled to charge a reasonable fee for redelivery and/or storage.

6.3           Any time or date given by Bays Joinery to the Client is an estimate only. The Client must still accept delivery of the Goods even if late and Bays Joinery will not be liable for any loss or damage incurred by the Client as a result of the delivery being late.

6.4           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.

6.5           If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Client, Bays Joinery is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by Bays Joinery is sufficient evidence of Bays Joinery’s rights to receive the insurance proceeds without the need for any person dealing with Bays Joinery to make further enquiries.

6.6           If the Client requests Bays Joinery to leave Goods outside Bays Joinery’s premises for collection or to deliver the Goods to an unattended location then such Goods shall be left at the Client’s sole risk.

6.7           The Client acknowledges that Goods (including but not limited to paint, timber, tiles) supplied may exhibit variations in shade tone, colour, texture, markings, veining, surface and finish, and may fade or change colour over time. Bays Joinery will make every effort to match batches/samples of the Goods supplied in order to minimise such variations, but shall not be liable in any way whatsoever where such variations occur.

6.8           Marble and Granite are porous products, and therefore, Goods are sealed for protection.  However, oil and other acidic substances are prone to causing discolouration and staining if left on surfaces for some time.  The Client agrees to indemnify Bays Joinery against any damage occurring after delivery and installation.

6.9           The Client acknowledges that Goods supplied may:

7. Dimensions, Plans and Specifications

7.1           All customary building industry tolerances shall apply to the dimensions and measurements of the Goods unless the Client and Bays Joinery agree otherwise in writing.

7.2           Bays Joinery shall be entitled to rely on the accuracy of any plans, specifications and other information provided by the Client.

7.3           If the giving of an estimate or quotation for the supply of Goods involves Bays Joinery estimating measurements and quantities, it shall be the responsibility of the Client (where applicable) to verify the accuracy of Bays Joinery’s estimated measurements and quantities, before the Client places an order based on such estimate or accepts such quotation.

7.4           Should the Client require any changes to Bays Joinery’s estimated measurements and quantities, the Client shall request such changes in writing, in the case of an estimate before placing an order based on that estimate and in the case of a quotation before acceptance of that quotation.

8. Access

8.1           The Client shall ensure that Bays Joinery has clear and free access to the work site at all times to enable them to deliver the Goods. Bays Joinery shall not be liable for any loss or damage to the site (including, without limitation, damage to pathways, driveways and concreted or paved or grassed areas) unless due to the negligence of Bays Joinery.

9. Title

9.1           Bays Joinery and the Client agree that ownership of the Goods shall not pass until:

9.2           Receipt by Bays Joinery 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.

9.3           It is further agreed that:

10. Personal Property Securities Act 1999 (“PPSA”)

10.1        Upon assenting to these terms and conditions in writing the Client acknowledges and agrees that:

10.2        The Client undertakes to:

10.3        Bays Joinery and the Client agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms and conditions.

10.4        The Client waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129 and 131 of the PPSA.

10.5        Unless otherwise agreed to in writing by Bays Joinery, the Client waives its right to receive a verification statement in accordance with section 148 of the PPSA.

10.6        The Client shall unconditionally ratify any actions taken by Bays Joinery under clauses 10.1 to 10.5.

10.7        Subject to any express provisions to the contrary (including those contained in this clause 10), nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.

11. Security and Charge

11.1        In consideration of Bays Joinery 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, 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).

11.2        The Client indemnifies Bays Joinery from and against all Bays Joinery’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising Bays Joinery’s rights under this clause.

11.3        The Client irrevocably appoints Bays Joinery and each director of Bays Joinery as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 11 including, but not limited to, signing any document on the Client’s behalf.

12. Defects

12.1        The Client shall inspect the Goods on delivery and shall within seven (7) days of delivery (time being of the essence) notify Bays Joinery of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote.  The Client shall afford Bays Joinery 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 Bays Joinery has agreed in writing that the Client is entitled to reject, Bays Joinery’s liability is limited to either (at Bays Joinery’s discretion) replacing the Goods or repairing the Goods.

12.2        Goods will not be accepted for return other than in accordance with 12.1 above.

13. Warranty

13.1        Subject to the conditions of warranty set out in clause 13.2 Bays Joinery warrants that if any defect in any workmanship of Bays Joinery becomes apparent and is reported to Bays Joinery within two (2) years of the date of delivery (time being of the essence) then Bays Joinery will either (at Bays Joinery’s sole discretion) replace or remedy the workmanship.

13.2        The conditions applicable to the warranty given by clause 13.1 are:

13.3        For Goods not manufactured by Bays Joinery, the warranty shall be the current warranty provided by the manufacturer of the Goods. Bays Joinery 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.

14. Consumer Guarantees Act 1993

14.1        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 do not apply to the supply of Goods by Bays Joinery to the Client.

15. Intellectual Property

15.1        Where Bays Joinery has designed, drawn or developed Goods for the Client, then the copyright in any designs and drawings and documents shall remain the property of Bays Joinery.Under no circumstances may such designs, drawings and documents be used without the express written approval of Bays Joinery.

15.2        The Client warrants that all designs, specifications or instructions given to Bays Joinery will not cause Bays Joinery to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify Bays Joinery against any action taken by a third party against Bays Joinery in respect of any such infringement.

15.3        The Client agrees that Bays Joinery may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings or Goods which Bays Joinery has created for the Client.

16. Default and Consequences of Default

16.1        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 Bays Joinery’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.

16.2        If the Client owes Bays Joinery any money the Client shall indemnify Bays Joinery from and against all costs and disbursements incurred by Bays Joinery in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, Bays Joinery’s collection agency costs, and bank dishonour fees).

16.3        Further to any other rights or remedies Bays Joinery may have under this Contract, if a Client has made payment to Bays Joinery, 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 Bays Joinery under this clause 16 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.

16.4        Without prejudice to Bays Joinery’s other remedies at law Bays Joinery shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to Bays Joinery shall, whether or not due for payment, become immediately payable if:

17. Cancellation

17.1        Without prejudice to any other remedies Bays Joinery may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions Bays Joinery may suspend or terminate the supply of Goods to the Client. Bays Joinery will not be liable to the Client for any loss or damage the Client suffers because Bays Joinery has exercised its rights under this clause.

17.2        Bays Joinery 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 Bays Joinery shall repay to the Client any money paid by the Client for the Goods. Bays Joinery shall not be liable for any loss or damage whatsoever arising from such cancellation.

17.3        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 Bays Joinery as a direct result of the cancellation (including, but not limited to, any loss of profits).

17.4        Cancellation of orders for Goods made to the Client’s specifications, or for non-stocklist items, will definitely not be accepted once production has commenced, or an order has been placed.

18. Privacy Policy

18.1        All emails, documents, images or other recorded information held or used by Bays Joinery is Personal Information as defined and referred to in clause 18.3and therefore considered confidential. Bays Joinery acknowledges its obligation in relation to the handling, use, disclosure and processing of Personal Information pursuant to the Privacy Act 1993 (“the Act”) including Part II of the OECD Guidelines and as set out in Schedule 5A of the Act and any statutory requirements where relevant in a European Economic Area “EEA” under the EU Data Privacy Laws (including the General Data Protection Regulation “GDPR”) (collectively, “EU Data Privacy Laws”). Bays Joinery acknowledges that in the event it becomes aware of any data breaches and/or disclosure of the Client’s Personal Information, held by Bays Joinery that may result in serious harm to the Client, Bays Joinery will notify the Client in accordance with the Act and/or the GDPR.  Any release of such personal information must be in accordance with the Act and the GDPR (where relevant) and must be approved by the Client by written consent, unless subject to an operation of law.

18.2        Notwithstanding clause 18.1, privacy limitations will extend to Bays Joinery in respect of Cookies where the Client utilises Bays Joinery’s website to make enquiries. Bays Joinery 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:

If the Client consents to Bays Joinery’s use of Cookies on Bays Joinery’s website and later wishes to withdraw that consent, the Client may manage and control Bays Joinery’s privacy controls via the Client’s web browser, including removing Cookies by deleting them from the browser history when exiting the site.

18.3        The Client authorises Bays Joinery or Bays Joinery’s agent to:

18.4        Where the Client is an individual the authorities under clause 18.3 are authorities or consents for the purposes of the Privacy Act 1993.

18.5        The Client shall have the right to request Bays Joinery for a copy of the Personal Information about the Client retained by Bays Joinery and the right to request Bays Joinery to correct any incorrect Personal Information about the Client held by Bays Joinery.

19. Suspension of Services

19.1        Where the Contract is subject to section 24A of the Construction Contracts Amendment Act 2015, the Client hereby expressly acknowledges that:

19.2        If pursuant to any right conferred by this Contract, Bays Joinery suspends the Services and the default that led to that suspension continues un-remedied subject to clause 17.1 for at least ten (10) working days, Bays Joinery shall be entitled to terminate the Contract, in accordance with clause 17.

20. Service of Notices

20.1        Any written notice given under this Contract shall be deemed to have been given and received:

20.2        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.

21. Trusts

21.1        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 Bays Joinery may have notice of the Trust, the Client covenants with Bays Joinery as follows:

22. General

22.1        The failure by Bays Joinery to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect Bays Joinery’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.

22.2        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.

22.3        Bays Joinery 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 Bays Joinery of these terms and conditions (alternatively Bays Joinery’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Goods).

22.4        Bays Joinery may licence and/or assign all or any part of its rights and/or obligations under this Contract without the Client’s consent.

22.5        The Client cannot licence or assign without the written approval of Bays Joinery.

22.6        Bays Joinery 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 Bays Joinery’s sub-contractors without the authority of Bays Joinery.

22.7        The Client agrees that Bays Joinery 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 Bays Joinery to provide Goods to the Client.

22.8        Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.

22.9     The Client warrants that it has the power to enter into this Contract and has obtained all necessary authorisations to allow it to do so, it is not insolvent and that this Contract creates binding and valid legal obligations on it.