Terms of trade
1 Definitions
1 “Client” means the person/s, entities or any person acting on behalf of and with the authority of the Client requesting Stratford Design 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.
1.2 “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.
1.3 “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 Stratford Design’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.
1.4 “Goods” means all Goods or Services supplied by Stratford Design 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 “Intended Use” means a product and the use thereof, for which the product is intended to be, or is reasonably likely to be, associated with the Services.
1.6 “Non-Conforming Product” means products that are regarded as Non-Conforming for an Intended Use if, when associated with a building:
(a) the product is not, or will not be, safe; or
(b) does not, or will not, comply with the relevant regulatory provisions; or
(c) the product does not perform, or is not capable of performing, for the use to the standard it is represented to conform by or for a person in the chain of responsibility for the product.
1.7 “Price” means the Price payable (plus any Goods and Services Tax (“GST”) where applicable) for the Goods as agreed between Stratford Design and the Client in accordance with clause 7 below.
1.8 “Project” means the Project as specified in the letter of engagement and/or fee proposal that will read in conjunction with this Contract for which the Services are provided by Stratford Design to the Client.
1.9 “Property” means the address specified in this Contract for which the Services are to be provided by Stratford Design.
1.10 “Stratford Design” means Susan Lands T/A Stratford Design, its successors and assigns.
2 Interpretation
2.1 In this Contract, unless it is stated to the contrary or the context requires otherwise:
(a) words in the singular shall include the plural (and vice versa), words importing one gender shall include every gender, a reference to a person shall include any other legal entity of whatsoever kind (and vice versa) and where a word or a phrase is given a defined meaning in this Contract, any other part of speech or other grammatical form of that word or phrase has a corresponding meaning;
(b) a reference to a statue, ordinance, code, or other law includes regulations and other statutory instruments under it and consolidations, amendments, re-enactments, or replacements of any of them (whether of the same or any other legislative authority having jurisdiction);
(c) a reference to dollars ($), is a reference to New Zealand currency;
(d) the following order of precedence (in descending order) applies to resolve any conflict, ambiguity, or discrepancy in this Contract:
i the letter of engagement and/or fee proposal;
ii this Contract; and
iii any schedule or appendix attached hereto.
(e) any reference (other than in the calculation of consideration, or of any indemnity, reimbursement, or similar amount) to cost, expense or other similar amount is a reference to that cost exclusive of GST.
3 Acceptance
3.1 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 or Services.
3.2 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.
3.3 Any amendment to the terms and conditions contained in this Contract may only be amended in writing by the consent of both parties.
3.4 Any advice, recommendation, information, assistance, or service provided by Stratford Design in relation to Goods or Services supplied is given in good faith to the Client, or the Client’s agent and is based on Stratford Design’s own knowledge and experience and shall be accepted without liability on the part of Stratford Design. Where such advice or recommendations are not acted upon then Stratford Design shall require the Client or their agent to authorise commencement of the Services in writing. Stratford Design shall not be liable in any way whatsoever for any damages or losses that occur after any subsequent commencement of the Services.
3.5 The Client acknowledges that:
(a) the supply of Goods or Services on credit shall not take effect until the Client has completed a credit application with Stratford Design and it has been approved with a credit limit established for the account;
(b) in the event that the supply of Goods or Services requested exceeds the Client’s credit limit and/or the account exceeds the payment terms, Stratford Design reserves the right to refuse delivery;
(c) the supply of Goods for accepted orders may be subject to availability and if, for any reason Goods are not or cease to be available, Stratford Design reserves the right to vary the Price with alternative Goods as per clause 7.2, subject to prior confirmation and agreement of both parties. Stratford Design also reserves the right to halt all Services until such time as Stratford Design and the Client agree to such changes. Stratford Design shall not be liable to the Client for any loss or damage the Client suffers due to Stratford Design exercising its rights under this clause; and
(d) Stratford Design will provide an extensive initial consultation and will accept no responsibility for any changes to the plans or specifications, (including, but not limited to, colour selection, fabric choice, soft and hard floor coverings, floor and wall tiles, hardware and fittings, etc.) once the quotation has been accepted.
3.6 Stratford Design reserves the right to charge an initial fee (which may include an excess of four (4) hours of the first selection appointment and multiple site visits) for a quotation prepared on request for the Client for performance of the Services. In the event that the Client does not accept the quotation, the Client accepts and agrees to pay Stratford Design the initial fee detailed in the quotation for the Services provided to date.
3.7 Once accepted by the Client:
(a) Stratford Design’s written quotation shall be deemed to interpret the Client’s instructions, whether written or verbal. Where verbal instructions only are received from the Client, Stratford Design shall not be responsible for errors or omissions due to oversight or misinterpretation of those instructions; and
(b) while every care is taken by Stratford Design to carry out the instructions of the Client, it is the Client’s responsibility to undertake a final proof of the Client’s colour selection choices. Stratford Design shall be under no liability whatsoever for any errors not corrected by the Client in the final proofing of the Client’s colour selection choice.
3.8 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.
4 Authorised Representatives
4.1 Unless otherwise limited as per clause 4.2, the Client agrees that should the Client introduce any third party to Stratford Design as the Client’s duly authorised representative, that once introduced that person shall have the full authority of the Client to order any Services and/or to request any variation thereto, on the Client’s behalf (such authority to continue until all requested Services have been completed or the Client otherwise notifies Stratford Design in writing that said person is no longer the Client’s duly authorised representative).
4.2 In the event that the Client’s duly authorised representative (as per clause 4.1) is to have only limited authority to act on the Client’s behalf then the Client must specifically and clearly advise Stratford Design in writing of the parameters of the limited authority granted to their representative.
4.3 The Client specifically acknowledges and accepts that they will be solely liable to Stratford Design for all additional costs incurred by Stratford Design (including Stratford Design’s profit margin) in providing any Services or variation/s thereto, requested by the Client’s duly authorised representative (subject always to the limitations imposed under clause 4.2 (if any)).
5 Errors and Omissions
5.1 The Client acknowledges and accepts that Stratford Design shall, without prejudice, accept no liability in respect of any alleged or actual error(s) and/or omission(s):
(a) resulting from an inadvertent mistake made by Stratford Design in the formation and/or administration of this Contract; and/or
(b) contained in/omitted from any literature (hard copy and/or electronic) supplied by Stratford Design in respect of the Services.
5.2 In the event such an error and/or omission occurs in accordance with clause 5.1, and is not attributable to the negligence and/or wilful misconduct of Stratford Design; the Client shall not be entitled to treat this Contract as repudiated nor render it invalid.
6 Change in Control
6.1 The Client shall give Stratford Design 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 Stratford Design as a result of the Client’s failure to comply with this clause.
7 Price and Payment
7.1 At Stratford Design’s sole discretion the Price shall be either:
(a) as indicated on any invoice provided by Stratford Design to the Client; or
(b) Stratford Design’s estimated Price (subject to clause 7.2) which will be valid for the period stated in the letter [email] of engagement and/or fee | quote proposal, or otherwise for a period of twenty (20) days. The Client acknowledges that the final invoiced Price can only be ascertained upon completion of the Services; however, variances of more than ten percent (10%) for work completed within the defined scope will be subject to the Client’s approval. In addition to the exclusions outlined in the letter of engagement and/or fee proposal, the estimate contained in the letter of engagement and/or fee proposal and this Contract do not provide for the following (unless otherwise stated in writing):
i any additional work required by the Council or Consenting Authority, or requested by external parties (including, but not limited to, the builder, surveyor, [sub] contractors, architect, structural engineer, other professionals, or the Client in respect of work outside the scope and nature of the Services); and
ii attendance at site meetings, or meetings with council outside the requirements of the findings in the documentation; and
iii any work requested by the Client or the Client’s representative(s) which is outside of the defined scope of Services; or
(c) Stratford Design’s quoted Price (subject to clause 7.2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.
7.2 Stratford Design reserves the right to change the Price:
(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) to include any reimbursable expenses as per clause 8, including where the provision of the Services requires Stratford Design to obtain products and/or services from a third party, and in this instance the Contract shall incorporate, and shall be subject to, the conditions of supply of such products and/or services to Stratford Design, and the Client shall be liable for the cost in full including Stratford Design’s margin of such products and/or services; or
(d) if a variation to the Services (including any variation to the Client’s brief or specifications) is requested. Such variation shall be ascertained and calculated in accordance with the rates specified in the letter of engagement and/or fee proposal (if those rates are applicable to the nature and scope of the variation work required), or if those rates are not specified, at a rate agreed to by the Client and Stratford Design; or
(e) where additional costs are incurred by Stratford Design due to unexpected delays, or receipt of approvals or permits, access to an assessment area not being available as was agreed or when pre-arranged, and/or for additional Services which are outside of the agreed scope of Services; or
(f) where additional Services are required due to the discovery of hidden or unidentifiable difficulties (including, but not limited to, inclement weather, limitations to accessing the Property, obscured site defects which require remedial work, health hazards and safety considerations (such as the discovery of asbestos), prerequisite work by any third party not being completed, change of plans, change in colour selection, etc.) which are only discovered on commencement of the Services; or
(g) if during the course of the Services, the Goods are not or cease to be available from Stratford Design’s third-party suppliers, then Stratford Design reserves the right to provide alternative Goods; or
(h) in the event of increases to Stratford Design in the cost of labour or materials which are beyond Stratford Design’s control.
7.3 Variations will be charged on the basis of Stratford Design’s quotation, and will be detailed in writing, and shown as variations on Stratford Design’s invoice. The Client shall be required to respond to any variation submitted by Stratford Design within ten (10) working days. Failure to do so will entitle Stratford Design 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.
7.4 At Stratford Design’s sole discretion a non-refundable deposit may be required.
7.5 Time for payment for the Goods being of the essence, the Price will be payable by the Client on the date/s determined by Stratford Design, which may be:
(a) by way of instalments/progress payments in accordance with Stratford Design’s payment schedule;
(b) the date specified on any invoice or other form as being the date for payment; or
(c) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Client by Stratford Design.
7.6 Payment may be made by cash, electronic/on-line banking, or by any other method as agreed to between the Client and Stratford Design.
7.7 Stratford Design may in its discretion allocate any payment received from the Client towards any invoice that Stratford Design determines and may do so at the time of receipt or at any time afterwards. On any default by the Client Stratford Design may re-allocate any payments previously received and allocated. In the absence of any payment allocation by Stratford Design, payment will be deemed to be allocated in such manner as preserves the maximum value of Stratford Design’s Purchase Money Security Interest (as defined in the PPSA) in the Goods.
7.8 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 Stratford Design nor to withhold payment of any invoice because part of that invoice is in dispute.
7.9 Unless otherwise stated the Price does not include GST. In addition to the Price, the Client must pay to Stratford Design an amount equal to any GST Stratford Design must pay for any supply by Stratford Design under this or any other contract 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.
8 Reimbursable Expenses
8.1 Stratford Design shall be reimbursed for all expenses reasonably and properly incurred in connection with the provision of the Services, except where such expenses are specifically stated in writing by Stratford Design as being non-reimbursable. All reimbursable expenses (e.g., typing, copying, travel time, flights, kilometres, communications, couriers, etc.) will be charged and invoiced on a time charge basis for actual time and work hours spent on the Client’s Project. Stratford Design shall maintain up-to-date records which clearly identify time and expenses incurred in providing the Services to the Client.
9 Provision of the Services
9.1 Subject to clause 9.2 it is Stratford Design’s responsibility to ensure that the Services start as soon as it is reasonably possible.
9.2 The Services’ commencement date will be put back and the completion date extended by whatever time is reasonable in the event that Stratford Design claims an extension of time (by giving the Client written notice) where completion is delayed by an event beyond Stratford Design’s control, including but not limited to any failure by the Client to:
(a) make a selection; or
(b) have the site ready for the Services; or
(c) notify Stratford Design that the site is ready.
9.3 Changes to Goods may not be made once Stratford Design has ordered the Goods or Delivered the Goods to the site without Stratford Design’s prior approval. Any changes will be subject to review and will be charged in accordance with clause 7.2.
9.4 Delivery (“Delivery”) of the Goods is taken to occur at the time that Stratford Design (or Stratford Design’s nominated carrier) delivers the Goods to the Client’s nominated address even if the Client is not present at the address.
9.5 At Stratford Design’s sole discretion, the cost of Delivery is in addition to the Price.
9.6 Stratford Design may deliver the Goods in separate installments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.
9.7 Any time specified by Stratford Design for Delivery of the Goods is an estimate only and Stratford Design will not be liable for any loss or damage incurred by the Client because of Delivery being late. However, both parties agree that they shall make every endeavour to enable the Goods to be delivered at the time and place as was arranged between both parties. If Stratford Design is unable to supply the Goods as agreed solely due to any action or inaction of the Client, then Stratford Design shall be entitled to charge a reasonable fee for redelivery and/or storage.
9.8 Where the Client requires Delivery and/or installation of the Goods beyond the standard lead time, payment in full shall be required at the lead time.
10 Scope of the Services
10.1 The scope of the Services shall be defined by the task or matters given in Stratford Design’s proposal submitted to the Client in response to the Client’s brief. Such a proposal may be amended following consultation with the Client, in which case the scope of the Services shall then be Stratford Design’s proposal as modified by any amendments confirmed in writing to the Client.
10.2 Stratford Design shall exercise reasonable skill, care and diligence in the performance of the Services.
10.3 If Stratford Design is required to exercise their professional judgment between the Client and a third party with whom the Client has a contract then they shall do so independently and as required by the terms of that contract.
10.4 Stratford Design shall use all reasonable efforts to inform themselves of the Client’s requirements for the Project and for that purpose they shall consult the Client throughout the performance of the Services.
10.5 If Stratford Design considers that the information, documents and other particulars made available to them by the Client are not sufficient to enable Stratford Design to provide the Services in accordance with this Contract, Stratford Design may advise the Client who shall then provide such further assistance, information, or other particulars as necessary in the circumstances.
10.6 If Stratford Design becomes aware of any matter which will change or which has changed the scope or timing of the Services then Stratford Design will give notice to the Client and the notice will contain, as far as practicable in the circumstances, particulars of the change.
10.7 Stratford Design shall perform the Services in a timely manner to the extent that it is within Stratford Design’s control to do so.
11 Risk
11.1 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.
11.2 If any of the Goods are damaged or destroyed following Delivery but prior to ownership passing to the Client, Stratford Design is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by Stratford Design is sufficient evidence of Stratford Design’s rights to receive the insurance proceeds without the need for any person dealing with Stratford Design to make further enquiries.
11.3 If the Client requests Stratford Design to leave Goods outside Stratford Design’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.
11.4 Where Stratford Design is required to install the Goods the Client warrants that the structure of the premises or equipment in or upon which these Goods are to be installed or erected is sound and will sustain the installation and work incidental thereto and Stratford Design shall not be liable for any claims, demands, losses, damages, costs, and expenses howsoever caused or arising should the premises or equipment be unable to accommodate the installation.
11.5 The Client acknowledges that Stratford Design is only responsible for Goods that are supplied by Stratford Design and does not at any stage accept any liability in respect of substituted products or brands supplied by any other third party that subsequently fail and are found to be the source of the failure, the Client agrees to indemnify Stratford Design against any loss or damage to the substituted products or brands, or caused thereby, or any part thereof howsoever arising.
11.6 The Client acknowledges and agrees that:
(a) whilst fabric and component manufacturers make every effort to match dye lots, paints, weaves, colours, or shades, these may vary between batches of product and/or between sale samples and the actual Goods supplied;
(b) fabric and component manufacturers cannot guarantee to produce perfectly uniform patterned product, therefore there is no guarantee that patterned product will match perfectly when installed;
(c) The manufacturing process for blinds, awnings and the like may require seams and cross-joins and that the appearance of these may be affected by light source and in particular the construction of the chosen product. The Client shall accept that some mismatching of patterned fabric may result due to the inherent nature of fabric as mentioned in the above clauses;
(d) fabric flaws, ripples or marks will be considered viewed from at least one (1) metre of distance in an even light;
(e) painted and powder coated surfaces will have a uniform appearance in colour and texture when viewed from at least one (1) metre of distance in an even light; and
(f) all powder coated and painted surfaces shall be free of excessive scratches that penetrate through the layers of coatings to the bare metal or surface below as per accepted industry standards.
11.7 The Client accepts that with the nature of fabric, the finished Goods may not roll up or sit level in either the up or down positions. Although Stratford Design shall endeavour to fit the Goods to the best possible placement, the Client shall accept that framing that the Goods are being attached to may not be square and/or plumb.
11.8 The Client accepts that tension on fabric, soft and hard floor coverings and floor and wall tiles may cause some rippling, and this is considered accepted industry standards.
11.9 Atmospheric conditions, including differing seasons and weather, may alter the characteristics of fabrics. The Client acknowledges and agrees that industry standards allow for up to three percent (3%) movement in man made fabrics and five to six percent (5-6%) in natural fabrics such as silk and linen and shall not be considered a defect. Stratford Design accepts no liability for these natural occurrences.
11.10 The Client acknowledges and accepts that Goods supplied may:
(a) exhibit variations in shade, colour, texture, surface, and finish, and may fade or change colour over time. Stratford Design will make every effort to match batches of product supplied to minimise such variations but shall not be liable in any way whatsoever where such variations occur; and
(b) mark or stain if exposed to certain substances.
11.11 The selection of dark paint colours on any external doors that are not sheltered from direct sunlight will not be warranted by Stratford Design against warping, twisting, or bowing. If a dark colour is selected by the builder’s client, they do so at their own risk.
11.12 Stratford Design shall not be liable for any defect, deterioration and/or damage to the Goods:
(a) if the Client does not follow Stratford Design’s recommendations, including advice on specialist cleaning the Goods; and
(b) resulting from incorrect use and/or installation of the Goods by the Client or any other third party.
12 Accuracy of Clients Plans and Measurements
12.1 Stratford Design shall be entitled to rely on the accuracy of any plans, specifications and other information provided by the Client. The Client acknowledges and agrees that in the event that any of this information provided by the Client is inaccurate, Stratford Design accepts no responsibility for any loss, damages, or costs however resulting from these inaccurate plans, specifications or other information.
12.2 In the event the Client gives information relating to measurements and quantities of the Goods required to complete the Services, it is the Client’s responsibility to verify the accuracy of the measurements and quantities before the Client or Stratford Design places an order based on these measurements and quantities. Stratford Design accepts no responsibility for any loss, damages, or costs however resulting from the Client’s failure to comply with this clause.
13 Specifications
13.1 All descriptive specifications, illustrations, drawings, data, dimensions, ratings and weights stated in Stratford Design’s fact sheets, price lists or advertising material, are approximate only and are given by way of identification only. Stratford Design shall not be entitled to rely on such information, and any use of such does not constitute a sale by description, and does not form part of the Contract, unless expressly stated as such in writing by Stratford Design.
13.2 While Stratford Design may have provided information or figures to the Client regarding the performance of the Services, the Client acknowledges that Stratford Design has given these in good faith, and are estimates based on optimal operating conditions.
14 Client’s Responsibilities
14.1 It is the Client’s responsibility to:
(a) have all areas clean and clear to enable scheduled work to be completed in accordance with the schedule of installation. Where existing window furnishings are not removed at time of installation, then Stratford Design reserves the right to charge for the removal of the same and will be invoiced as a variation; and
(b) remove all fragile items such as glassware, crockery, pot plants, furniture, and ornaments. Breakages and damages are the responsibility of the Client. All care taken but no responsibility accepted by Stratford Design in this regard; and
(c) provide adequate dust sheets to protect the Client’s furniture and décor. Stratford Design will not accept any responsibility for cleaning or repair costs attributed to dust or damage caused by the installation process; and
(d) make the premises available on the agreed date and time. If installation is interrupted by the failure of the Client to adhere to the installation schedule agreed to between Stratford Design and the Client, any additional costs will be invoiced to the Client as an extra; and
(e) provide Stratford Design with facilities, as specified by Stratford Design, (including, but not limited to, a suitable free power source, toilet, waste disposal amenities, eating and first aid facilities) for the duration of the Services.
14.2 The Client acknowledges that in the event asbestos, or any other toxic substances are discovered at the Property that it is their responsibility to ensure the safe removal of the same. The Client further agrees to indemnify Stratford Design against any costs incurred by Stratford Design as a consequence of such discovery. Under no circumstances will Stratford Design handle removal of asbestos product.
15 Access
15.1 The Client shall ensure that:
(a) Stratford Design always has clear and free access to the Property to enable them to undertake the Services. Stratford Design shall not be liable for any loss or damage to the Property (including, without limitation, damage to pathways, driveways and concreted or paved or grassed areas) unless due to the negligence of Stratford Design; and
(b) make the premises available on the agreed date and time. If installation is interrupted by the failure of the Client to adhere to the installation schedule agreed to between Stratford Design and the Client, any additional costs will be invoiced to the Client as an extra.
15.2 In the event that Stratford Design loses time on the job as a result of any reason beyond the reasonable control of Stratford Design, the Client accepts Stratford Design shall be deemed to be on standby time unless otherwise agreed and such delays will be charged to the Client as per Stratford Design’s current schedule of conditions and Prices.
16 Compliance with Laws
16.1 The Client and Stratford Design shall comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities that may be applicable to the Services, including any WorkSafe health and safety laws relating or any other relevant safety standards or legislation pertaining to the Services.
16.2 Both parties acknowledge and agree:
(a) to comply with the Building Act 2004 (including any subsequent Amendments) and Code of Ethics, in respect of all workmanship and building products to be supplied during the course of the Services; and
(b) that Services will be provided in accordance with any current relevant Australian/New Zealand Standards applicable.
16.3 Where the Client has supplied products for Stratford Design to complete the Services, the Client acknowledges that it accepts responsibility for the suitability of purpose and use for their products and the Intended Use and any faults inherent in those products. However, if in Stratford Design’s opinion, it is believed that the materials supplied are Non-Conforming products and will not conform with New Zealand regulations, then Stratford Design shall be entitled, without prejudice, to halt the Services until the appropriate conforming products are sourced and all costs associated with such a change to the plans and design will be invoiced in accordance with clause 7.2.
16.4 The Client shall obtain (at the expense of the Client) all licenses and approvals that may be required for the Services.
16.5 Notwithstanding clause 16.1 and pursuant to the Health & Safety at Work Act 2015 (the “HSW Act”), Stratford Design agrees at all times to comply with sections 28 and 34 of the “HSW Act” with meeting their obligations for health and safety laws in the workplace regardless of whether they may be the party in control of the site or where they may be acting as a sub-contractor for the Client who has engaged a third party head contractor.
17 Title
17.1 Stratford Design and the Client agree that ownership of the Goods shall not pass until:
(a)the Client has paid Stratford Design all amounts owing to Stratford Design; and
(b) the Client has met all of its other obligations to Stratford Design.
17.2 Receipt by Stratford Design 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.
17.3 It is further agreed that until ownership of the Goods passes to the Client in accordance with clause 17.1:
(a) the Client is only a bailee of the Goods and must return the Goods to Stratford Design on request;
(b) the Client holds the benefit of the Client’s insurance of the Goods on trust for Stratford Design and must pay to Stratford Design 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 Stratford Design and must pay or deliver the proceeds to Stratford Design 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 Stratford Design and must sell, dispose of or return the resulting product to Stratford Design as it so directs;
(e) the Client irrevocably authorises Stratford Design to enter any premises where Stratford Design believes the Goods are kept and recover possession of the Goods;
(f) Stratford Design 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 Stratford Design; and
(h) Stratford Design may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Client.
18 Personal Property Securities Act 1999 (“PPSA”)
18.1 Upon assenting to these terms and conditions in writing the Client acknowledges and agrees that:
(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 that have previously been supplied and that will be supplied in the future by Stratford Design to the Client, and the proceeds from such Goods as listed by Stratford Design to the Client in invoices rendered from time to time.
18.2 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 Stratford Design may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register;
(b) indemnify, and upon demand reimburse, Stratford Design 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, or permit to be registered, a financing statement or a financing change statement in relation to the Goods or the proceeds of such Goods in favour of a third party without the prior written consent of Stratford Design; and
(d) immediately advise Stratford Design 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.
18.3 Stratford Design and the Client agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms and conditions.
18.4 The Client waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, and 131 of the PPSA.
18.5 Unless otherwise agreed to in writing by Stratford Design, the Client waives its right to receive a verification statement in accordance with section 148 of the PPSA.
18.6 The Client shall unconditionally ratify any actions taken by Stratford Design under clauses 18.1 to 18.5.
18.7 Subject to any express provisions to the contrary (including those contained in this clause 18), nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.
19 Security and Charge
19.1 In consideration of Stratford Design 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, and the Client grants a security interest in all of its present and after-acquired property, 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). The terms of the charge and security interest are the terms of Memorandum 2018/4344 registered pursuant to s.209 of the Land Transfer Act 2017.
19.2 The Client indemnifies Stratford Design from and against all Stratford Design’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising Stratford Design’s rights under this clause.
19.3 The Client irrevocably appoints Stratford Design and each director of Stratford Design as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 19 including, but not limited to, signing any document on the Client’s behalf.
20 Defects and Warranty
20.1 The Client shall inspect the Services on Delivery and shall within forty-eight (48) hours of Delivery (time being of the essence) notify Stratford Design of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Client shall afford Stratford Design an opportunity to inspect the Services within a reasonable time following Delivery if the Client believes the Services are defective in any way. If the Client fails to comply with these provisions the Services shall be presumed to be free from any defect or damage. For defective Services, which Stratford Design has agreed in writing that the Client is entitled to reject, Stratford Design’s liability is limited to either (at Stratford Design’s discretion) replacing the Services or rectifying the Services.
20.2 Where any item is specified by Stratford Design and accepted by client, then client asks to exchange or replace such goods, this needs to be notified in writing within the same forty-eight hour [48] period specified in clause 20.1. A request will be submitted to ‘that’ supplier and at their [ suppliers ] discretion confirm or deny such request. Should ‘that’ supplier agree to exchange or replace, items need to be in brand new sellable condition, in brand new original packaging. Client accepts full responsibility for all associated costs including and not limited to restocking, transportation, labour and admin related fees
20.3 For Goods not manufactured by Stratford Design, the warranty shall be the current warranty provided by the manufacturer of the Goods. Stratford Design 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.
21 Consumer Guarantees Act 1993
21.1 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 (“CGA”) do not apply to the supply of Goods by Stratford Design to the Client.
22 Intellectual Property
22.1 Where Stratford Design has designed, drawn or developed Goods for the Client, then the copyright in any designs and drawings and documents shall remain the property of Stratford Design. Under no circumstances may such designs, drawings and documents be used without the express written approval of Stratford Design.
22.2 The Client warrants that all designs, specifications or instructions given to Stratford Design will not cause Stratford Design to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify Stratford Design against any action taken by a third party against Stratford Design in respect of any such infringement.
22.3 The Client agrees that Stratford Design may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings or Goods which Stratford Design has created for the Client.
23 Default and Consequences of Default
23.1 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 Stratford Design’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
23.2 If the Client owes Stratford Design any money the Client shall indemnify Stratford Design from and against all costs and disbursements incurred by Stratford Design in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, Stratford Design’s collection agency costs, and bank dishonour fees).
23.3 Further to any other rights or remedies Stratford Design may have under this Contract, if a Client has made payment to Stratford Design, 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 Stratford Design under this clause 23 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.
23.4 Without prejudice to Stratford Design’s other remedies at law Stratford Design shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to Stratford Design shall, whether or not due for payment, become immediately payable if:
(a) any money payable to Stratford Design becomes overdue, or in Stratford Design’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 Stratford Design;
(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.
24 Cancellation
24.1 Without prejudice to any other remedies Stratford Design may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions Stratford Design may suspend or terminate the supply of Goods to the Client. Stratford Design will not be liable to the Client for any loss or damage the Client suffers because Stratford Design has exercised its rights under this clause.
24.2 Stratford Design 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 Stratford Design shall repay to the Client any money paid by the Client for the Goods. Stratford Design shall not be liable for any loss or damage whatsoever arising from such cancellation.
24.3 In the event that the Client:
(a) cancels Delivery of Goods the Client shall be liable for any and all loss incurred (whether direct or indirect) by Stratford Design as a direct result of the cancellation (including, but not limited to, any loss of profits); and
(b) fails to give twelve (12) hours notice to Stratford Design to terminate the consultation session, a cancellation fee of up to fifty percent (50%) of the price may be applicable.
24.4 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.
25 Privacy Policy
25.1 All emails, documents, images or other recorded information held or used by Stratford Design is “Personal Information” as defined and referred to in clause 25.3 and therefore considered confidential. Stratford Design acknowledges its obligation in relation to the handling, use, disclosure and processing of Personal Information pursuant to the Privacy Act 2020 (“the Act”) including Part II of the OECD Guidelines as set out in the Act. Stratford Design acknowledges that in the event it becomes aware of any data breaches and/or disclosure of the Client’s Personal Information, held by Stratford Design that may result in serious harm to the Client, Stratford Design will notify the Client in accordance with the Act. Any release of such Personal Information must be in accordance with the Act and must be approved by the Client by written consent, unless subject to an operation of law.
25.2 Notwithstanding clause 25.1, privacy limitations will extend to Stratford Design in respect of Cookies where the Client utilises Stratford Design’s website to make enquiries. Stratford Design 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 Stratford Design when Stratford Design sends an email to the Client, so Stratford Design may collect and review that information (“collectively Personal Information”) If the Client consents to Stratford Design’s use of Cookies on Stratford Design’s website and later wishes to withdraw that consent, the Client may manage and control Stratford Design’s privacy controls via the Client’s web browser, including removing Cookies by deleting them from the browser history when exiting the site.
25.3 The Client authorises Stratford Design or Stratford Design’s agent to:
(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 Stratford Design from the Client directly or obtained by Stratford Design 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.
25.4 Where the Client is an individual the authorities under clause 25.3 are authorities or consents for the purposes of the Privacy Act 2020.
25.5 The Client shall have the right to request (by e-mail) from Stratford Design, a copy of the Personal Information about the Client retained by Stratford Design and the right to request that Stratford Design correct any incorrect Personal Information.
25.6 Stratford Design will destroy Personal Information upon the Client’s request (by e-mail) or if it is no longer required unless it is required in order to fulfil the obligations of this Contract or is required to be maintained and/or stored in accordance with the law.
25.7 The Client can make a privacy complaint by contacting Stratford Design via e-mail. Stratford Design will respond to that complaint within seven (7) days of receipt and will take all reasonable steps to make a decision as to the complaint within twenty (20) days of receipt of the complaint. In the event that the Client is not satisfied with the resolution provided, the Client can make a complaint to the Privacy Commissioner at http://www.privacy.org.nz.
26 Suspension of Services
26.1 Where the Contract is subject to section 24A of the Construction Contracts Act 2002, the Client hereby expressly acknowledges that:
(a) Stratford Design 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 7.5 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 Stratford Design by a particular date; and
iv Stratford Design has given written notice to the Client of its intention to suspend the carrying out of work under the construction Contract.
(b) if Stratford Design 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 Stratford Design exercises the right to suspend work, the exercise of that right does not:
i affect any rights that would otherwise have been available to Stratford Design 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 Stratford Design suspending work under this provision;
(d) due to any act or omission by the Client, the Client effectively precludes Stratford Design from continuing the Services or performing or complying with Stratford Design’s obligations under this Contract, then without prejudice to Stratford Design’s other rights and remedies, Stratford Design 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 Stratford Design as a result of such suspension and recommencement shall be payable by the Client as if they were a variation.
26.2 If pursuant to any right conferred by this Contract, Stratford Design suspends the Services and the default that led to that suspension continues un-remedied subject to clause 24.1 for at least ten (10) working days, Stratford Design shall be entitled to terminate the Contract, in accordance with clause 24.
27 Service of Notices
27.1 Any written notice given under this Contract shall be deemed to have been given and received:
(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 last known email address.
27.2 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.
28 Trusts
28.1 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 Stratford Design may have notice of the Trust, the Client covenants with Stratford Design 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 Stratford Design (Stratford Design 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.
29 General
29.1 Any dispute or difference arising as to the interpretation of these terms and conditions or as to any matter arising hereunder, shall be submitted to, and settled by, either adjudication in accordance with section 26 of the Construction Contracts Act 2002 and/or by arbitration in accordance with the Arbitration Act 1996 or its replacement(s).
29.2 The failure by either 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.
29.3 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.
29.4 Subject to the CGA, Stratford Design 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 Stratford Design of these terms and conditions (alternatively Stratford Design’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Goods).
29.5 Stratford Design may licence and/or assign all or any part of its rights and/or obligations under this Contract without the Client’s consent.
29.6 The Client cannot licence or assign without the written approval of Stratford Design.
29.7 Stratford Design 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 Stratford Design’s sub-contractors without the authority of Stratford Design.
29.8 The Client agrees that Stratford Design 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 Stratford Design to provide Goods to the Client.
29.9 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm, national or global pandemics and/or the implementation of regulation, directions, rules or measures being enforced by Governments or embargo, including but not limited to, any Government imposed border lockdowns (including, worldwide destination ports), etc, (“Force Majeure”) or other event beyond the reasonable control of either party. This clause does not apply to a failure by the Client to make a payment to Stratford Design.
29.10 Both parties warrant that they have the power to enter into this Contract and have obtained all necessary authorisations to allow them to do so, they are not insolvent and that this Contract creates binding and valid legal obligations on them.