Swinard Wooden Floors Limited
Unless otherwise expressly agreed in writing by Swinard Wooden Floors Limited (“the Company”), these General Terms and Conditions shall apply to any quotation, confirmation or tender response given by the Company and to any agreement for the supply of goods and/or the performance of works by the Company to you (the “Client”).
1. Quotation Terms
1.1 All quotations must be accepted within 30 days of the date of issue. If a quotation is not accepted within this time, the quotation will be deemed to have expired.
1.2 All quotations include GST unless otherwise stated.
1.3 Quotations do not include (a) preparation and rectification of the subfloor; or (b) trims and beadings; unless otherwise stated.
1.4 Quotations are subject to site measurement and inspection, as well as the availability of materials and are based upon the cost of labour and materials as at the quotation date. Quotations do not extend to include the cost of any remedial work not reasonably discoverable by visual inspection.
2. Terms of Payment
2.1 Invoices will be issued as per our quotation as payment claims under the Construction Contracts Act 2002. Where a payment claim is served under the Construction Contracts Act 2002, unless agreed otherwise, the payment schedule is due within 5 calendar days of the date of our payment claim. Payment is to be made within 7 days of the date of our payment claim (“the Due Date”).
2.2 The Client agrees that payment claims can be sent by email to the Client’s last known email address. Payment schedules must be sent to us by email to email@example.com. If they are not sent to this email address then they will be invalid for lack of proper service.
2.3 Each payment is payable by the Due Date without set-off or any deduction due to a counterclaim or cross-claim.
2.4 If the Client does not make payment on the Due Date, the Client shall be liable to pay: (a) Default interest at the rate of 2% per month, which shall accrue on a daily basis on the total amount outstanding from the Due Date to the date of payment in full; and (b) Any legal costs on a solicitor/client basis that we incur incidental to the enforcement or attempted enforcement of our rights, remedies and powers under these General Terms and Conditions.
3. Delivery, Risk and Insurance
3.1 Time shall not be deemed of the essence and the Company shall not be responsible for any reasonable delay in completion of the contract.
3.2 Goods delivered to site are at customer’s risk from the date of delivery. Claims will not be accepted unless made in writing within 14 days of receipt of delivery and any such claim shall be limited to the value of the goods supplied. Any timber being stored on-site prior to installation must be stored in conditions similar to those in which it is to be laid. This allows for acclimatisation. It can not be exposed to moisture or direct sun. It should be stored at a minimum of 200mm above a concrete surface or ground with a moisture barrier in between. It will also need regular supports to ensure the boards remain straight.
3.3 Ownership of goods delivered and stored by the Company, shall pass to the client upon payment. Goods stored by the Company at their Magdala Place premises are covered by their insurance.
4.1 The Company’s delivery of any goods to the Client is made on the express condition that title in the goods shall not pass to the Client until the Client has paid the purchase price of the goods in full, together with any other indebtedness of the Client to the Company.
4.2 If the Company shall at any time deem the credit of the Client to be unsatisfactory, the Company may require security for payment and may withhold delivery and/or cease installation until the provision of sufficient security.
5. Agreement to Mortgage
5.1 Where the Client has failed to make payment of any portion of the contract price or any other monies due and payable to the Company under the agreement on the due date for payment, then the Client will forthwith upon demand give and execute in favour of the Company, a registerable memorandum of mortgage over the Land to secure the amount owing from time to time from the Client to the Company under the agreement, such mortgage to be in the form of the All Obligations form produced by the Auckland District Law Society and approved by the Registrar General of Land under No. 2007/2169 together with Memorandum number 2007/4238. The Client acknowledges that the Company is entitled to register a caveat or similar charge against the title to the Land in circumstances where the Company is entitled to demand a registerable memorandum of mortgage.
5.2 The Company shall notify the Client in writing and give the Client five (5) working days to remedy the default before demanding a registerable memorandum of mortgage over the Land or registering a caveat over the Land.
5.3 In consideration of the Company entering into the agreement, the Client appoints every officer of the Company to be the attorney of the Client for the purposes of giving and executing in favour of the Company, a registerable memorandum of mortgage over the land to secure all amounts owing from time to time from the Client to the Company under the agreement. The Client acknowledges and agrees that the appointment of the Company to be the Client’s attorney is made for valuable consideration and is irrevocable.
5.4 The Client should ensure that any existing mortgagee is aware of the Company’s rights under this clause 5.
6. Impact of guarantee
6.1 The workmanship of Swinard Wooden Floors is covered by a two year guarantee from date of completion. Products used carry guarantees issued by the manufacturer. All products are covered under the Consumer Guarantees Act. Guarantees become valid upon full payment. Written guarantees are only issued on request.
7.1 Insofar as the Company may be liable for any loss, damage or injury arising directly or indirectly from any defect in the Company’s materials or works, the total liability of the Company, whether in tort, contract or otherwise, will be limited to the lesser of; (a) the contract price for the works, the cost of repairing or replacing (at the Company’s option) the defective materials or works; (b) the actual loss or damage suffered by the customer; and (c) the amount under any guarantee. The Company will not be liable for any consequential or indirect damage, loss or injury of any kind suffered by the Client or any event occurring during any remedial action.
7.2 A defect does not include: (a) fair wear and tear; (b) any colour or grain differences between different boards; (c) any fading of colour caused by natural sunlight and/or artificial light; (d) damage not caused by the Company or the Company’s agents; (e) Problems or damage resulting from the Client’s failure to carry out normal or reasonable maintenance; (f) problems or damage resulting from the Client’s failure to follow the Company’s reasonable advice (e.g. affixing the floor with tape, which may damage the polyurethane/oil when removed); (g) further problems or damage resulting from the Client’s failure to remediate or failure to advise the Company once a defect became apparent.
8.1 The Company reserves the right to determine whether the site is ready for flooring installation.
8.2 The Company may sub-contract any part of the contract. No sub-contractor has authority to agree to any variation of the contract (or any works to be performed under it) on behalf of the Company.
8.3 Floors are to be inspected by the Client and any defects are to be reported to Swinard Wooden Floors within five (5) working days, otherwise, floor is deemed to be satisfactory and accepted.
8.4 To the extent permitted by law, the Company will not be liable for any liquidated or general damages for delay.
8.5 The contract will be governed by the laws of New Zealand and the parties agree to submit to the jurisdiction of the courts of New Zealand.
If everything is to your satisfaction, please sign a copy of our quotation in acceptance of our General Terms and Conditions and Installation and Site Requirements, and return this to us.
Thank you for choosing a Swinard wooden floor, please be assured of our continuing service and attention.