1.1. “Amount owing” means the price charged by Sound Homes NZ Limited for the Goods, together
with any other sums which Sound Homes NZ Limited is entitled to charge under these Terms that
1.2. “Sound Homes NZ ltd” shall mean Sound Homes NZ ltd, or any agents or employees thereof.
1.3. “Customer” shall mean the Customer, any person acting on behalf of and with the authority of the
Customer, or any person purchasing goods and services from Sound Homes NZ ltd.
1.4. “Delivery” means delivery of any Goods and/or Services.
1.5. “Force Majeure Event” means any event or circumstance which is beyond the reasonable control
of the affected party and which results in or causes the failure of that party to perform any of its
obligations under these Terms.
1.6. “Goods” shall mean:
1.3.1 all Goods of the general description specified on the scope of works relating to this agreement and supplied by Sound Homes NZ ltd to the Customer; and
1.3.2 all Goods supplied by Sound Homes NZ ltd to the Customer; and
1.3.3 All goods, materials, services & advice supplied by Sound Homes NZ ltd and further identified in any invoice issued by Sound Homes NZ ltd to the Customer, which invoices are deemed to be incorporated into and form part of this agreement; and
1.3.4 all Goods that are marked as having been supplied by Sound Homes NZ ltd or that are stored by the Customer in a manner that enables them to be identified as having been supplied by Sound Homes NZ ltd; and
1.3.5 all of the Customer’s present and after-acquired Goods that Sound Homes NZ ltd has performed work on or to or in which goods or materials supplied or financed by Sound Homes NZ ltd have been attached or incorporated.
1.3.6 The above descriptions may overlap but each is independent of and does not limit the others.
1.7. “Goods” shall also mean all goods, services and advice provided by Sound Homes NZ ltd to the Customer and shall include without limitation the supply and installation of materials and all charges for labour, hire charges, insurance charges, or any fee or charge associated with the supply of Goods by Sound Homes NZ ltd to the Customer.
1.8. “PPSA” means the Personal Property Securities Act 1999.
1.9. “Price” shall mean the cost of the Goods as agreed between Sound Homes NZ ltd and the
1.10. “Security Interest” has the same meaning given to it in the PPSA.
2.1. Any instructions received by Sound Homes NZ ltd from the Customer for the supply of Goods shall constitute a binding contract and acceptance of the terms and conditions contained herein.
3. COLLECTION AND USE OF INFORMATION – THE PRIVACY ACT 1993
3.1. The Customer acknowledges that:
3.1.1. Personal information collected or held by Sound Homes NZ ltd (whether contained in this document or otherwise obtained) is provided and may be held, used and disclosed for the following purposes:
(a) Administering, whether directly or indirectly, Sound Homes NZ ltd’s contracts and enforcing their rights, entitlements and interests under such contracts;
(b) Marketing any Goods provided by Sound Homes NZ ltd to any other party;
4.1. Where no price is stated in writing or agreed to orally, the Goods shall be deemed to be sold at the current amount as such Goods are sold by Sound Homes NZ ltd at the time of the contract.
4.2. The price may be increased by the amount of any reasonable increase in the cost of supply of the Goods that is beyond the control of Sound Homes NZ ltd or due to a Force Majeure Event between the date of the contract and delivery of the Goods.
5.1. Unless otherwise agreed payment for Goods and services shall be made in full either: Domestic: A percentage deposit is due at the time of acceptance so as to book your job into our work program. Deposits are non-refundable once goods have been ordered. An additional 15% is due upon commencement of our work (with weekly progress payments due throughout the project until completion , and these payments are due within 7 days of issuance of invoice. Any outstanding remaining balance(s) is/are due payable upon completion of our work. Any queries regarding payment claims must be raised prior to due date.
5.1.2. Commercial – On or before the 20th day of the month following the date of the invoice (“the due
date”). No Retentions applicable
5.2. Interest compounding monthly or part month may be charged on any amount owing after the due date. The rate of interest shall be equal to two times the average monthly interest rate as certified by a chartered accountant or trading bank manager, which is currently payable or which would be payable by Sound Homes NZ ltd for overdraft facilities
5.3. Any expenses, disbursements and legal costs incurred by Sound Homes NZ ltd in the enforcement of any rights contained in this contract shall be paid by the Customer, including any reasonable solicitor’s fees or debt collection agency fees.
5.4. Receipt of a cheque, bill of exchange, or other negotiable instrument shall not constitute payment until such negotiable instrument is paid in full.
5.5. A deposit may be required. Deposits are non-refundable once Goods have been ordered.
6.1. Where a quotation is given by Sound Homes NZ ltd for Goods & Services:
6.1.1. Unless otherwise agreed the quotation shall be valid for thirty (30) days from the date of issue; and
6.1.2. The quotation shall be exclusive of goods and services tax unless specifically stated to the contrary;
6.1.3. Sound Homes NZ ltd reserves the right to alter the quotation because of circumstances beyond its control or a Force Majeure Event.
6.2. Where Goods are required in addition to the quotation the Customer agrees to pay for the additional cost of such Goods.
6.3 No allowances for scaffold errection nor rubbish removal unless stipulated in quotation/scope of works.
8. The Customer agrees that to the extent permissible under the PPSA:
8.1. Title in any Goods supplied by Sound Homes NZ ltd passes to the Customer only when the Customer has made payment in full for all Goods provided by Sound Homes NZ ltd and of all other sums due to Sound Homes NZ ltd by the Customer on any account whatsoever.
8.2. As security for all obligations that the Customer may owe to Sound Homes NZ ltd from time to time, the Customer hereby grants Sound Homes NZ ltd a security interest under the Personal Property Securities Act 1999 (PPSA) in all Goods supplied by Sound Homes NZ ltd to the Customer from time to time and in the proceeds of all such Goods as well as in any negotiable instrument representing any such proceeds.
8.3. The Customer will provide Sound Homes NZ ltd on request with all information necessary for the registration of the Sound Homes NZ ltd security interest in terms of the PPSA.
8.4. If the Goods are attached, fixed, or incorporated into any property of the Customer, by way of any manufacturing or assembly process by the Customer or any third party, title in the Goods shall remain with Sound Homes NZ ltd until the Customer has made payment for all Goods, and where those Goods are mixed with other property so as to be part of or a constituent of any new Goods, title to these new Goods shall deemed to be assigned to Sound Homes NZ ltd as security for the full satisfaction by the Customer of the full amount owing between Sound Homes NZ ltd and Customer (s.82 PPSA).
8.5. Until payment in full is made or the goods are on sold, Sound Homes NZ ltd must be entitled to retake possession of the goods. To allow the Sound Homes NZ ltd to do that, the Customer grants Sound Homes NZ ltd an irrevocable right to enter at any time any premises or place where the goods are held or thought to be held and to remove the goods upon default by the Customer. Sound Homes NZ ltd may then resell the goods and retain the proceeds of such sale. Any shortfall must be a debt owed by the Customer to Sound Homes NZ ltd, and the costs of and incidental to recovery of the same from the Customer (including solicitor and client costs on an indemnity basis) must be met by the Customer.
8.6. Where Goods are retained by Sound Homes NZ ltd pursuant to clause 8.5 the Customer waives the right to receive notice under s.120 of the PPSA and to object under s.121 of the PPSA.
8.7. Sound Homes NZ ltd shall not be liable for any costs, damages, expenses or losses incurred by the Customer or any third party as a result of this action, nor liable in contract or in tort or otherwise in any way whatsoever unless by statute such liability cannot be excluded.
8.8. The following shall constitute defaults by the Customer:
8.8.1. Non-payment of any sum by the due date.
8.8.2. The Customer expresses or indicates (implicitly or otherwise) that it will not pay any sum by the due date.
8.8.3. Any Goods are seized by any other creditor of the Customer or any other creditor expresses or indicates (implicitly or otherwise) that it intends to seize Goods.
8.8.4. Any Goods in the possession of the Customer are materially damaged while any sum due from the Customer to Sound Homes NZ ltd remains unpaid.
8.8.5. The Customer is bankrupted or put into liquidation or a receiver is appointed to any of the Customer’s assets or a landlord distrains against any of the Customer’s assets.
8.8.6. A Court judgment is entered against the Customer and remains unsatisfied for seven (7) days.
8.8.7. Any material adverse change in the financial position of the Customer.
9.1. If an event of Default occurs:
9.1.1. Sound Homes NZ ltd may suspend or terminate any contract; and
9.1.2. Any amount owing shall immediately become due and payable notwithstanding the due date for payment has not arisen; and
9.1.3. Sound Homes NZ ltd is entitled to recover from the Customer all costs that Sound Homes NZ ltd may reasonably incur in attempting to collect the amount owing (including actual legal costs and expenses and costs of collection) any other moneys owing by the Customer to Sound Homes NZ ltd, whether in relation to any contract or on any other account whatsoever.
10. PAYMENT ALLOCATION
10.1. Sound Homes NZ ltd may in its discretion allocate any payment received from the Customer towards any invoice that Sound Homes NZ ltd determines and may do so at the time of receipt or at any time afterwards and on default by the Customer may reallocate any payments previously received and allocated. In the absence of any payment allocation by Sound Homes NZ ltd, payment shall be deemed to be allocated in such manner as preserves the maximum value of Sound Homes NZ ltd’s purchase money security interest in the Goods.
11.1. No claim relating to Goods will be considered unless made in writing within seven (7) days of delivery and/or installation.
11.2. Any disputes by the Customer relating to an invoice issued by Sound Homes NZ Limited for Goods supplies must be received in writing within seven (7) days from the date of the invoice.
12.1. The Consumer Guarantees Act 1993, the Fair Trading Act 1986 and other statutes may imply warranties or conditions or impose obligations upon Sound Homes NZ ltd which cannot by law (or which can only to a limited extent by law) be excluded or modified. In respect of any such implied warranties, conditions or terms imposed on Sound Homes NZ ltd, Sound Homes NZ ltd’s liability shall, where it is allowed, be excluded or if not able to be excluded only apply to the minimum extent required by the relevant statute.
12.2. Except as otherwise provided by clause 12.1 Sound Homes NZ ltd shall not be liable for:
12.2.1. Any loss or damage of any kind whatsoever, arising from the supply of Goods by Sound Homes NZ ltd the Customer, including consequential loss whether suffered or incurred by the Customer or another person and whether in contract or tort (including negligence) or otherwise and irrespective of whether such loss or damage arises directly or indirectly from Goods provided by Sound Homes NZ ltd to the Customer; and
12.3. Force Majeure:
12.3.1. Notwithstanding any other provisions of these Terms, neither Sound Homes NZ Limited nor the Customer shall be liable for any delay or failure in the performance of any obligation or the exercise of any right under these Terms or for any loss or damage if such performance or exercise is prevented or hindered by a Force Majeure Event. Nothing in this clause shall excuse payment of the amount owing as it becomes due under these Terms.
12.3.2. The rights and obligations of either party which are affected by a Force Majeure Event shall be suspended during the continuance of the event with either party claiming to be affected by the event giving immediate notice to the other party containing full particulars of the event. The party giving notice under this clause shall take all reasonable steps to mitigate the effects of the event.
13.1. All work will be done as per the best trade practices, using only premium trade products. Any warranties applicable to the project will be supplied after final payment has been received.
13.2 Sound Homes NZ ltd does not warrant surfaces nor transition to surfaces not installed by ourselves.
14. CONSUMER GUARANTEES ACT
14.1. The guarantees contained in the Consumer Guarantees Act 1993 are excluded where the Customer acquires Goods from Sound Homes NZ ltd for the purposes of a business in terms of section 2 and 43 of that Act.
15. PERSONAL GUARANTEE OF COMPANY DIRECTORS OR TRUSTEES
15.1. If the Customer is a company or trust, the director(s) or trustee(s) signing this contract, in consideration for Sound Homes NZ ltd agreeing to supply Goods and grant credit to the Customer at their request, also sign this contract in their personal capacity and jointly and severally personally undertake as principal debtors to Sound Homes NZ ltd the payment of any and all monies now or hereafter owed by the Customer to Sound Homes NZ ltd and indemnify Sound Homes NZ ltd against nonpayment by the Customer. Any personal liability of a signatory hereto shall not exclude the Customer in any way whatsoever from the liabilities and obligations contained in this contract. The signatories and Customer shall be jointly and severally liable under the terms and conditions of this contract and for payment of all sums due hereunder.
16. ENTIRE AGREEMENT
16.1. These Terms (together with any documents expressly referred to in these Terms) contain the entire agreement and understanding between the parties and supersede all prior agreements, arrangements, and understandings (both oral and written) between the parties relating to the subject matter of these Terms. No other terms contained in any order or document submitted by the Customer (whether in writing, verbally or by Electronic Data Interchange (EDI)) or any other arrangement between the parties, shall apply unless otherwise expressly agreed in writing by the parties.
16.2 Sound Homes NZ limited acknowledges and agrees that it shall be responsible for ensuring that
all and any instructions, recommended uses, applications and instillation methods are followed for the
Goods and any cautions and/or warnings observed.
17. REVIEW OF TERMS
17.1. Sound Homes NZ Limited reserves the right to review and amend any of these Terms at any time. Any change will take effect on order placed after the date on which Sound Homes NZ Limited
publishes the revised Terms on the Sound Homes NZ website
(www.soundhomesnz.co.nz/termsandconditions), except where the amended Term is found by any court or administrative body of competent jurisdiction, or otherwise considered by Sound Homes NZ Limited, to be invalid, unenforceable or illegal (whether it is as between the parties to these Terms or in relation to any third party), in which case the last previously valid, enforceable and legal Term shall continue to apply.
18.1. Failure by Sound Homes NZ ltd to enforce any of the terms and conditions contained in this contract shall not be deemed to be a waiver of any of the rights or obligations Sound Homes NZ ltd has under this contract.
18.2. If any provision of this contract shall be invalid, void, or illegal or unenforceable the validity existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced, or impaired.
18.3. The Law of New Zealand must apply to our terms of trade and building and other contracts.
18.4 All colour choices and material selection must be made prior to works commencing.
18.5 Any photos taken of our work may be used for our own marketing purposes
18.6 It is the customers responsibility to move their property away from the house/are being worked on and away from an area where it could possibly get overspray or damage this includes plants private property and any removable fixtures.