Terms and Conditions
Terms and Conditions - Use of This Website
The use of this Website is subject to these Terms and Conditions (inclusive of Our standard Terms and Conditions for the supply of
Please read these Terms and Conditions carefully before You use the Website.
By using the Website, You indicate that You have, effective upon the date on which You have used the Website, read, accepted and agreed to be bound by these Terms and Conditions.
If You do not agree with these Terms and Conditions, You should cease using the Website immediately.
“Agreement” means the terms and conditions contained herein, together with any quotation, order, invoice or other document or amendments expressed to be supplemental to this Agreement.
“We”, “Us”, “Our” or “Ourselves”” means Bays Joinery Limited, its successors and assigns or any person acting on behalf of and with the authority of Bays Joinery Limited.
“You”, “Your” or “Yourself”” means any person/s (end user) being of the legal age of eighteen (18) years.
“Incidental item(s)” means goods and/or services that may be purchased or sold through this Website to be supplied and/or provided by the Seller to You, as specified on Our Website.
“Website” means a location which is accessible on the Internet through the World Wide Web and which provides multimedia content via a graphical User Interface.
“Prohibited Content” means any content on any advertising media that:
(a) is, or could reasonably be considered to be, in breach of the Broadcasting Act 1989; the Fair Trading Act 1986, the Consumer Guarantees Act 1993; or any other applicable law or applicable industry code; or
(b) contains, or could reasonably be considered to contain, any misrepresentations; or is, or could reasonably be considered to be, misleading or deceptive, likely to mislead or deceive or otherwise unlawful; or
(c) is, or could reasonably be considered to be, in breach of any person’s Intellectual Property Rights (including, but not limited to, the distribution of digital files or any other material in which We do not own the copyright).
“Personal Information” means any information that identifies or can be used to identify You, directly or indirectly. Examples of Personal Information include, but are not limited to, first and last name, date of birth, email address, gender, occupation, or other demographic information.
“Confidential Information” means information of a confidential nature whether oral, written or in electronic form including, but not limited to, this Agreement, a party’s Intellectual Property, operational information, know-how, trade secrets, financial and commercial affairs, contracts, Seller information and pricing details.
If You intend to transact through this Website (i.e purchase goods and/or services) then You warrant that You are at least 18 years of age, that You have the power to enter into this Agreement and You acknowledge that this Agreement creates binding and valid legal obligations upon You.
Compliance with Laws
Act 1993 (including Part II of the OECD Guidelines and as set out in Schedule 5A of the Act) or any other applicable laws.
We are committed to protecting Your Privacy in accordance with New Zealand Privacy Principles. We also recognise that when You choose to provide Us information about Yourself that You trust Us to act responsibly and in Your best interests therefore We have the following policies in place to protect Your personal information.
Storing Your Information
Securing Your Information
When making a transaction through this Website Your information will pass through a secure server using SSL (secure sockets layer) encryption technology. The encryption process ensures that Your information can not be read by or altered by outside influences.
Information We Collect
When You request Goods or Services We may collect Personal Information supplied by You when You complete an online form in order to facilitate the purchase of Goods and/or Services. Such information will enable Us to process Your transactions efficiently, analyse our Website services and enable Us to provide a higher level of customer service (which may include informative or promotional activities).
We may also collect the following information/tracking data for statistical purposes and to help Us understand how to make Our Website more available and user friendly for You and to measure the success of any advertising activities We may under take:
(a) Your IP address.
(b) The date and time of Your visits to Our Website.
(c) Your clicks and activity on this Website.
(d) The referring Website if any through which You clicked through to this Website.
(e) Technical information on Your browser, device and operating systems.
Information We Release
We will only release information about You as authorised by Yourself, required by law or where required in order for Us to provide Goods or Services to Yourself e.g to third party suppliers, or delivery companies. Where supplied to such third parties the information provided will only be sufficient for the third party to perform their services and may not be used by them for any other purpose. We will not release Your information for any purpose which You could reasonably expect us not to release the information.
Except as detailed above We do not share, give, sell, rent, or lease information to third parties and Your Personal Information will only be disclosed to those employees within Our organisation who have a need to know in order to ensure You are provided with information about Our products and Services or to request Goods and Services through this Website.
Under the Privacy Act legislation You can ask to see any information We may hold about You and You also have the right to have any inaccuracies in the same corrected by Us. We will comply with any such requests to the extent required by the Privacy Act legislation within fourteen (14) days of the receipt of Your request. We may ask you to verify your identity in order to help us respond efficiently to your request.
Other Data Protection Rights
You may have the following data protection rights:
(a) To access, correct, update or request deletion of Personal Information. We will take all reasonable steps to ensure that the data We collect is reliable for its intended use, accurate, complete and up to date.
(b) In addition, individuals who are residents of the European Economic Area “EEA” can object to processing of their Personal Information, ask to restrict processing of their Personal Information or request portability of their Personal Information. You can exercise these rights by contacting Us using the contact details provided in the “Questions and Concerns” section below.
(c) Similarly, if Personal Information is collected or processed on the basis of consent, the data subject can withdraw their consent at any time. Withdrawing Your consent will not affect the lawfulness of any processing We conducted prior to Your withdrawal, nor will it affect processing of Your Personal Information conducted in reliance on lawful processing grounds other than consent.
(d) The right to complain to a data protection authority about the collection and use of Personal Information. For more information, please contact your local data protection authority. Contact details for data protection authorities in the EEA are available at http://ec.europa.eu/justice/article-
Questions & Concerns
If You have any questions or comments, or if You have a concern about the way in which We have handled any privacy matter, please use Our contact form via this Website to send Us a message. You may also contact Us by postal mail or email at:
For EEA Residents:
For the purposes of EU data protection legislation,
Our Data Protection Officer can be contacted at firstname.lastname@example.org
For Non-EEA Residents:
Attention: Privacy Officer
Postal Address: PO Box 1558, Nelson
We and Our partners may use various technologies to collect and store information when You use this Website, and this may include using cookies and similar tracking technologies, such as pixels and web beacons. These web beacons track certain behavior such as whether the email sent through the Website was delivered and opened and whether links within the email were clicked. They also allow Us to collect information such as the recipient’s:
- IP address, browser, email client type and other similar details;
- Tracking Website usage and traffic;
- Reports are available to Us when We send email to You, so We may collect and review that information.
These cookies do not read Your hard drive but may be stored on Your hard drive to enable Our Website to recognise You when You return to the same.
If at any time You are on a mailing list of Ours then You may request to be removed from the same and We will comply with Your request if there is no unsubscribe button provided then please contact Us with Your request using the “Contact Us” section of this Website.
Returns, Damaged or Defective Goods
Our policy in relation to Returns, Damaged or Defective Goods shall be as specified in Our standard Terms and Conditions for the supply of Goods and Services. We shall not accept returns for change of mind or if You make a wrong decision unless due to our negligence or incorrect information supplied by Ourselves.
Copyright and Trademarks
The contents of this Website are at all times the copyright or trademark property of either Ourselves, Our suppliers or linked third parties and You may not distribute, reproduce, display, publish any trademark or other content of this Website for any purpose whatsoever without the prior written approval of Us, Our suppliers or linked third parties (each as applicable). Furthermore You agree to indemnify Us against any claims, costs, damages or losses incurred by Us should You fail to comply with this clause.
Advertisers and Linked Sites
The display on Our Website of any advertiser or the provision of a link to third party Websites does not constitute Our endorsement of either the advertiser or third party provider or any of their Website content or business practices. As We do not have any control of the content of any third party Websites, access to such Websites is at Your sole risk and We recommend that You thoroughly review the terms and conditions of use and the Privacy policies of any third party Website immediately once You access such a Website.
We shall accept no liability in regards to any dealings, promotions or activities between Yourself and advertisers or third party providers.
Specifications and Information
Specifications and information provided on this Website are given in good faith based on Our knowledge, experience, or information provided to Us by manufacturers and/or suppliers, or derived from sources believed to be accurate at the time the information is received by Us, therefore it is recommended if You have any concerns as to the suitability of Goods or Services provided through this Website in respect of the use of the Goods or Services or their suitability for a particular use that You contact Us or seek external professional opinion.
You acknowledge and accept that colours of items displayed on the Website may not reflect the true and actual colour of such items as this may be affected by external influences such as the quality of images supplied to Us for use, or the quality, age or settings on Your monitor. If colour is a major factor in Your decision making We recommend You contact Us before purchase.
Display on this Website does not guarantee the availability of any particular Good(s) therefore all orders placed through this Website shall be subject to confirmation of acceptance by Us. Orders for Services shall be subject to confirmation of suitable timeframes between You and Ourselves for provision of the Services.
Due to the inherent nature of Websites We cannot guarantee uninterrupted or continuous availability of this Website and You accept that the Website may also be unavailable from time to time for maintenance or scheduled upgrades. Where able We shall give You advanced warning of the same. We shall accept no liability in relation to Website downtime whether scheduled or otherwise.
Termination of Use
These terms and Your access to Our Website may be terminated by Us (at Our sole discretion) at any time without notice or any requirement to give You a reason why. In the event of termination under this clause We shall have no liability to You whatsoever (including for any consequential or direct loss You may suffer).
This Website (excluding any linked third party sites) is controlled by Us from Our principal business premises in New Zealand. Our website is hosted on a Microsoft SharePoint Cloud Platform which means it is a world wide network of servers. Your Information may be transferred to, stored, processed or can be accessed from countries around the world to the extent permitted by the Website. As each country has laws that may differ from New Zealand, by accessing this Website, You agree that the laws and statutes of New Zealand shall apply to any dealings, actions or claims arising out of, or in relation to, this agreement, or Your use of this Website, irrespective of any conflict with any laws and statutes applicable to Your country of domicile.
In addition, We or Our subcontractors may use cloud technology to store or process Personal Information, which may result in storage of data outside New Zealand. It is not practicable for Us to specify in advance which country will have jurisdiction over this type of offshore activity. All of Our subcontractors, however, are required to comply with the New Zealand Privacy Act in relation to the transfer or storage of Personal Information overseas.
You further acknowledge and agree that the filing of a claim against Us (if any) must be made in New Zealand in which Our principal business premises in New Zealand is domiciled, and that any legal proceedings will be conducted in English.
We make no representation that Goods or Services offered through this Website are appropriate, available or suitable for use in countries outside of New Zealand, and accessing any material or content from, or through, this Website which is illegal in Your country of domicile is strictly prohibited.
The failure by either contracting party to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect that party’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.
We shall be under no liability whatsoever to You for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by You arising out of a breach by Us of these terms and conditions (alternatively Our liability shall be limited to damages which under no circumstances shall exceed the Fee of the Services).
Message Boards: We provide Message Boards for the use of Our Website users. The Message Boards may not be used to promote Websites or any commercial or business activity. We are not responsible for any of the opinions expressed in the Message Boards. By posting a message to the message board You agree to take full legal responsibility and liability for your comments, including for offensive or defamatory statements.
Feedback: Feedback is provided for the purpose of facilitating trading by You on Our Website. Feedback provided on other parties must not contain offensive, defamatory, retaliatory or inappropriate language or content. We may remove any feedback that is considered to be offensive, defamatory, retaliatory or inappropriate.
You may only give feedback that relates to a specific transaction. You must not post feedback on a transaction that does not relate to that specific transaction.
You must not post feedback about Yourself or include any contact details or Personal Information in Your feedback.
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.
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:
(a) if there is more than one Client, is a reference to each Client jointly and severally; and
(b) if the Client is a partnership, it shall bind each partner jointly and severally; and
(c) if the Client is a part of a Trust, shall be bound in their capacity as a trustee; and
(d) includes the Client’s executors, administrators, successors and permitted assigns.
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.
2.1 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.
2.6 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
(a) resulting from an inadvertent mistake made by Bays Joinery in the formation and/or administration of this Contract; and/or
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.
5.1 At Bays Joinery’s sole discretion the Price shall be either:
(a) as indicated on any invoice provided by Bays Joinery to the Client; or
(b) Bays Joinery’s quoted price (subject to clause 5.2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.
(a) if a variation to the Goods which are to be supplied is requested; or
(b) if a variation to the Services originally scheduled (including any applicable plans or specifications) is requested; or
(c) where additional Services are required due to the discovery of hidden or unidentifiable difficulties (including, but not limited to, poor weather conditions, limitations to accessing the site, safety considerations, availability of machinery, prerequisite work by a third party not being completed, omissions from architects or hidden pipes, and wiring in walls etc.) which are only discovered on commencement of the Services; or
(d) in the event of increases to Bay Joinery in the cost of labour or Goods which are beyond Bay Joinery’s control.
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.
(a) on completion of the Services; or
(b) by way of progress payments in accordance with Bay Joinery’s specified progress payment scheduleat intervals not less than monthly for work performed up to the end of each month. Such progress payment claims may include the reasonable value of authorised variations and the value of any Goods and/or Services completed to date but not yet installed. Unless otherwise specified, such progress payment claims shall be based on:
(i) a deposit of thirty percent (30%) on signing of this Contract; and
(ii) prior to Delivery of the completed Goods a progress payment shall be due of sixty percent (60%);
(iii) a final payment of ten percent (10%) on completion of the Services.
(c) for certain approved Clients, due twenty (20) days following the end of the month in which a statement is posted to the Client’s address or address for notices;
(d) the date(s) specified on any invoice or other form as being the date for payment; or
(e) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Client by Bays Joinery.
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:
(a) expand, contract or distort as a result of exposure to heat, cold, weather; and
(b) mark or stain if exposed to certain substances; and
(c) be damaged or disfigured by impact or scratching.
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.
8.1 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.
(a) the Client has paid Bays Joinery all amounts owing to Bays Joinery; and
(b) the Client has met all of its other obligations to Bays Joinery.
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:
(a) until ownership of the Goods passes to the Client in accordance with clause 9.1 that the Client is only a bailee of the Goods and must return the Goods to Bays Joinery on request.
(b) the Client holds the benefit of the Client’s insurance of the Goods on trust for Bays Joinery and must pay to Bays Joinery the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed.
(c) the Client must not sell, dispose, or otherwise part with possession of the Goods other than in the ordinary course of business and for market value. If the Client sells, disposes or parts with possession of the Goods then the Client must hold the proceeds of any such act on trust for Bays Joinery and must pay or deliver the proceeds to Bays Joinery on demand.
(d) the Client should not convert or process the Goods or intermix them with other goods but if the Client does so then the Client holds the resulting product on trust for the benefit of Bays Joinery and must sell, dispose of or return the resulting product to Bays Joinery as it so directs.
(e) the Client irrevocably authorises Bays Joinery to enter any premises where Bays Joinery believes the Goods are kept and recover possession of the Goods.
(f) Bays Joinery may recover possession of any Goods in transit whether or not delivery has occurred.
(g) the Client shall not charge or grant an encumbrance over the Goods nor grant nor otherwise give away any interest in the Goods while they remain the property of Bays Joinery.
(h) Bays Joinery may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Client.
(a) these terms and conditions constitute a security agreement for the purposes of the PPSA; and
(b) a security interest is taken in all Goods previously supplied by Bays Joinery to the Client (if any) and all Goods that will be supplied in the future by Bays Joinery to the Client.
10.2 The Client undertakes to:
(a) sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which Bays Joinery may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register;
(b) indemnify, and upon demand reimburse, Bays Joinery for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register or releasing any Goods charged thereby;
(c) not register a financing change statement or a change demand without the prior written consent of Bays Joinery; and
(d) immediately advise Bays Joinery of any material change in its business practices of selling the Goods which would result in a change in the nature of proceeds derived from such sales.
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.
10.6 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.
11.1 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.
12.1 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.
13.1 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.
(a) the warranty shall not cover any defect or damage which may be caused or partly caused by or arise through:
(i) failure on the part of the Client to properly maintain any Goods; or
(ii) failure on the part of the Client to follow any instructions or guidelines provided by Bays Joinery; or
(iii) any use of any Goods otherwise than for any application specified on a quote or order form; or
(iv) the continued use of any Goods after any defect becomes apparent or would have become apparent to a reasonably prudent operator or user; or
(v) fair wear and tear, any accident or act of God.
(b) the warranty shall cease and Bays Joinery shall thereafter in no circumstances be liable under the terms of the warranty if the workmanship is repaired, altered or overhauled without Bays Joinery’s consent.
(c) in respect of all claims Bays Joinery shall not be liable to compensate the Client for any delay in either replacing or remedying the workmanship or in properly assessing the Client’s claim.
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.
16.1 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:
(a) any money payable to Bays Joinery becomes overdue, or in Bays Joinery’s opinion the Client will be unable to make a payment when it falls due;
(b) the Client has exceeded any applicable credit limit provided by Bays Joinery;
(c) the Client becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
(d) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.
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.
18.1 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:
(a) IP address, browser, email client type and other similar details;
(b) tracking website usage and traffic; and
(c) reports are available to Bays Joinery when Bays Joinery sends an email to the Client, so Bays Joinery may collect and review that information (“collectively Personal Information”)
(a) access, collect, retain and use any information about the Client;
(i) (including, 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 or any overdue fines balance information held by the Ministry of Justice) for the purpose of assessing the Client’s creditworthiness; or
(ii) for the purpose of marketing products and services to the Client.
(b) disclose information about the Client, whether collected by Bays Joinery from the Client directly or obtained by Bays Joinery from any other source, to any other credit provider or any credit reporting agency for the purposes of providing or obtaining a credit reference, debt collection or notifying a default by the Client.
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:
(a) Bays Joinery has the right to suspend work within five (5) working days of written notice of its intent to do so if a payment claim is served on the Client, and:
(i) the payment is not paid in full by the due date for payment in accordance with clause 5.5 and/or any subsequent amendments or new legislation and no payment schedule has been given by the Client; or
(ii) a scheduled amount stated in a payment schedule issued by the Client in relation to the payment claim is not paid in full by the due date for its payment; or
(iii) the Client has not complied with an adjudicator’s notice that the Client must pay an amount to Bays Joinery by a particular date; and
(iv) Bays Joinery has given written notice to the Client of its intention to suspend the carrying out of construction work under the construction Contract.
(b) if Bays Joinery suspends work, it:
(i) is not in breach of Contract; and
(ii) is not liable for any loss or damage whatsoever suffered, or alleged to be suffered, by the Client or by any person claiming through the Client; and
(iii) is entitled to an extension of time to complete the Contract; and
(iv) keeps its rights under the Contract including the right to terminate the Contract; and may at any time lift the suspension, even if the amount has not been paid or an adjudicator’s determination has not been complied with.
(c) if Bays Joinery exercises the right to suspend work, the exercise of that right does not:
(i) affect any rights that would otherwise have been available to Bays Joinery under the Contract and Commercial Law Act 2017; or
(ii) enable the Client to exercise any rights that may otherwise have been available to the Client under that Act as a direct consequence of Bays Joinery suspending work under this provision;
(d) due to any act or omission by the Client, the Client effectively precludes Bays Joinery from continuing the Services or performing or complying with Bays Joinery’s obligations under this Contract, then without prejudice to Bays Joinery’s other rights and remedies, Bays Joinery may suspend the Services immediately after serving on the Client a written notice specifying the payment default or the act, omission or default upon which the suspension of the Services is based. All costs and expenses incurred by Bays Joinery as a result of such suspension and recommencement shall be payable by the Client as if they were a variation.
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
(a) by handing the notice to the other party, in person;
(b) by leaving it at the address of the other party as stated in this Contract;
(c) by sending it by registered post to the address of the other party as stated in this Contract;
(d) if sent by facsimile transmission to the fax number of the other party as stated in this Contract (if any),on receipt of confirmation of the transmission;
(e) if sent by email to the other party’s current email address.
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.
21.1 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:
(a) the Contract extends to all rights of indemnity which the Client now or subsequently may have against the Trust and the trust fund;
(b) the Client has full and complete power and authority under the Trust to enter into the Contract and the provisions of the Trust do not purport to exclude or take away the right of indemnity of the Client against the Trust or the trust fund. The Client will not release the right of indemnity or commit any breach of trust or be a party to any other action which might prejudice that right of indemnity.
(c) the Client will not without consent in writing of Bays Joinery (Bays Joinery will not unreasonably withhold consent), cause, permit, or suffer to happen any of the following events;
(i) the removal, replacement or retirement of the Client as trustee of the Trust;
(ii) any alteration to or variation of the terms of the Trust;
(iii) any advancement or distribution of capital of the Trust; or
(iv) any resettlement of the trust property.
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.