Terms of Trade

Ultimate Prefab NZ Limited – Terms of Trade

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1. Definitions: In these terms of trade (Terms):

 

1. Business Day means a day that is not a Saturday, Sunday or a public holiday in Tauranga, New Zealand.

2. Consumer Guarantees Act means the Consumer Guarantees Act 1993 as replaced or amended from time to time.

3. Deposit has the meaning given to it in clause 9.

4. Event of Default has the meaning given to it in clause 15.

5. Intellectual Property has the meaning given to it in clause 18.

6. Major Failure has the meaning given to it in clause 3.

7. Products means all of the products purchased by the customer from Ultimate Prefab New Zealand Limited pursuant to these Terms.

8. Warranty Claim has the meaning given to it in clause 5.

9. We, Us, Our means Ultimate Prefab NZ Limited.

10. You, Your means the customer and, where this is more than one person/party, each such person/party jointly and severally.

1. Application of Terms: You accept these terms by placing an order with Us. These Terms prevail over any prior terms and conditions between the parties. We reserve the right to change these Terms at any time by giving you no less than 20 Business Days prior written notice.
    

2. Quotations: Unless otherwise specified in writing, all quotations given by Us:

1. are based on the cost of labour, materials, freight and other inputs on the date of the quotation and are valid for 20 Business Days from the date of issue and will become null and void if not accepted by You in writing within 20 Business Days from the date of issue;

2. may be amended by Us if the final plans, dimensions and physical details of the Products differ from those on which the quote was based;

3. do not constitute an offer by Us. A contract on these Terms is only concluded if You request for Us to provide the Products to You and we accept that request by confirmation in writing (which may be by e-mail).

1. Consumer Guarantees Act: All Products shall be subject to the Consumer Guarantees Act and, as such, You shall be entitled to have the Products repaired or replaced where the Products fail to be of acceptable quality and the failure is not capable of being fixed within a reasonable period of time (Major Failure). Where a Major Failure occurs with the Products, You shall be entitled to a refund or replacement of the Products. Where any fault arises with the Products, immediately cease use of the Products and complete the warranty form and required fields on Our website, www.ultimateprefab.co.nz. If you repair and/or replace the Products prior to notifying Us, We reserve the right to refuse reimbursement.  You agree that where the Products are provided for Your business purposes, the Consumer Guarantees Act is not applicable to the Products.
    

2. Warranty: We guarantee that we will remedy (at Our cost) any defect in the fixtures and fittings associated with the Products, other than normal wear and tear, that is reported to Us via Our website form (Warranty Claim) within 12 months from the date that delivery of the Products occurs, and any structural defects in the Products, other than normal. wear and tear, in which a Warranty Claim is made within three (3) years from the date delivery of the Products occurs. Where the Products are covered by the Consumer Guarantees Act, theseis warrantiesy areis in addition to any rights You may have under that Act. We reserve the right to inspect any defect of the Products prior to accepting any Warranty Claim. Where the Products have to be returned to Us, You are liable for all associated costs of returning the Products. A Warranty Claim will be void where:

1. the Products have been significantly structurally modified, altered, or repaired by a third party;

2. We are unable to discover any defects;

3. the defect is within industry standard variances;

4. the defect has arisen due to Your, or any third parties, failure or neglect to maintain the Products; or

5. the Products have been subject to abnormal conditions including but not limited to, extreme environmental conditions, flooding, fire, misuse and/or accident damage.

1. Products installation: You are responsible for, and must meet all associated costs of, (where applicable):

1. having a licenced electrician connect the Products to mains power, install any light fittings, power points or light switches and to complete the final electrical certification of the Products;

2. having a licenced plumber connect the Products to sewer mains (if required) and to connect the Products to water and grey waste;

3. setting up the Products, including levelling the base, folding out the sides, installing windows, flashings, skirting and cornices and anything else reasonably required for the purpose of set up. It is recommended that a licenced carpenter be engaged to undertake this;

4. having a licenced gas fitter install any gas fittings and appliances;

5. checking the foundations where the Products sit every six (6) to twelve (12) months for any movement and/or settlement; and

6. installing and maintaining working smoke alarms in accordance with any legislation and/or bylaws.

We take no responsibly for any injury and/or damages from the actions of using third parties at any time during the set up or use of the Products, and You indemnify us in respect of any loss or claims in relation to the same.

1. Consents: You are responsible for obtaining any consent or other authority necessary for the Products to be set up and/or occupied on Your property, or any other property where you may keep the Products from time to time.
    

2. Customer acknowledgements: You acknowledge and accept that:

1. Our Products are suitable for Your intended purpose and location (as disclosed by You to Us);

2. We take no responsibly for any penalties incurred against you from any council or other government bodies for any misuse or incorrect installation of the Products;

3. it is your responsibility to know the weights of the Products and the implications of the towing limits and breaking requirements for any vehicle towing the Products.

4. Our Products are manufactured in a factory in China. While We check all Products in New Zealand for any signs of a Major Failure, the price point and nature of our business means that Our Products may have imperfections and there could be damage in spots that cannot be inspected in New Zealand. Minor defects are deemed satisfactory by Us and You;

5. You have been given the opportunity to inspect our display models (and/or Our other Products) and You have accepted our Products to be in a similar condition to Our display Products;

6. We are not legally responsible for any loss or damage You might suffer in relation to purchasing one of Our Products including but without limitation, from errors or omissions in Our documents or information;

7. You agree to comply with any and all laws, regulations and rules relating to Your use of Our website, Your interactions with Us, and placement of any orders with Us;

8. You agree that all specifications for Your order of the Products will be included in the quote provided by Us and You agree that the information provided in the quote is accurate;

9. We will rely on information provided by You in relation to Your order for the Products and any costs incurred by Us in reliance on incorrect or inadequate information may result in additional costs charged to You; and

10. except for the provisions of these Terms, we do not make any warranty, assurance, promise or representation regarding the quality, fitness for purpose or use, suitability or merchantability of the Products for any purpose whatsoever, and that in accepting these Terms, you have relied entirely on your own enquiries, knowledge, skill and judgement.

1. Deposit: A non-refundable deposit (Deposit) shall become due and payable immediately on the placing of an order with Us. Payment of the Deposit shall constitute acceptance of our quote and of the Terms. The amount of the Deposit shall be indicated on the bottom of the quote.
    

2. Payment: The remaining amount (being the purchase price less the Deposit) shall be invoiced to You two weeks prior to Your completion date. Following receipt of all amounts due in relation to the Products, the Products shall be made available for delivery or collection (as required). Where payment is not received on time, We have the right to allocate Your Products to another customer and, once Your payment has been received, You will be allocated the next available Products. Where payment is five (5) Business Days overdue, We reserve the right to charge storage fees at the rate of $50.00 per day until such time as delivery or collection has occurred.
    

3. Delivery: Delivery and/or collection of the Products shall be Your sole responsibility. We may, at our discretion, agree to negotiate delivery for commercial and/or bulk sales on the following terms:

1. You agree for Us to subcontract, assign, novate or transfer all or part of the delivery of the Products at any time and we are not required to give You written notice. Any subcontractors will have the same rights as Us under the Terms;

2. You must provide Us with complete and uninterrupted access to the property to enable Us to deliver the Products;

3. delivery drivers shall use their best endeavours to unload the Products where You request. Site conditions including but not limited to, site surface, slope and weather may restrict delivery options. The driver is responsible for choosing the unloading area. If our drivers are unable to unload the Products in the requested area they have the right to leave the Products on the nearest Council road provided the Products are in a reasonable and safe position;

4. You warrant to Us that the ground surfaces traversed by Our delivery drivers in order to undertake the delivery are of suitable construction and condition to prevent damage to said surfaces or Our drivers’ trucks;

5. estimated arrival time and date are to be used as a guide only and are subject to change due to weather, other unforeseen circumstances and circumstances beyond our control including without limitation, truck break downs, traffic, road closures, customs delays, ship delays or port delays. We will use all reasonable endeavours to fulfil Your order with Us in a timely manner;

6. any delay on delivery dates for any reason whatsoever does not entitle You to any claim for consequential loss or damage, or to cancel your order;

7. We may adjust the delivery price at any time to pass on increases in costs imposed by our delivery drivers, or increased costs due to any other reason as determined in our sole discretion. We shall provide You with written notice of any fee adjustment from the time that the Deposit was paid to the time the Products have been delivered;

8. You have the right to organise Your own transport for delivery of the Products; and

9. You indemnify Us from and in respect of all loss, damage, liabilities or claims caused directly or indirectly from Our drivers.

1. Title and risk: Risk in the Products shall pass to you upon delivery of the Products, or upon You collecting the Products (as applicable). Title to the Products shall not pass until all amounts owing to Us are paid in full.
    

2. Cancellations and variations: Should You wish to cancel or vary Your Order prior to delivery, You shall, notwithstanding the Deposit being non-refundable, indemnify Us against any losses incurred by Us as a result of Your cancellation or variation, and cover Our reasonable costs or additional costs associated with Your cancellation or variation.
    

3. Force majeure: We shall not be liable for any act, omission of failure to fulfil Our obligations where such act, omission or failure arises from any cause reasonably beyond Our control. For as long as such circumstances continue, We may, at Our sole discretion, terminate your order or delay performance of Your order until such time as the circumstances have ceased.
    

4. Default: We may immediately terminate Your order by notice to You in writing where You commit, or become subject to, any of the following events:

1. You breach any provision of these Terms and fail to remedy that breach within 7 Business Days of notice from Us;

2. where You are a natural person, You become bankrupt; or

3. where You are a corporation, You are wound up or deregistered, or where a receiver, manager, trustee, liquidator official assignee or other person is appointed in respect of You and/or of Your assets,

(each an Event of Default).

Where an order is terminated pursuant to this clause 15, We shall be entitled to retain all moneys received from You and are under no obligation to provide the Products to you.

1. Liability: To the maximum extent permitted by law, all warranties, guarantees or conditions, whether implied by customary practice, statute or at law are excluded. Our liability for any defective products or for any cost, loss, damage, injury or claim arising directly or indirectly in relation to the Products supplied by Us, whether arising from contract, tort (including negligence) or otherwise, shall be limited to (at our option), repairing the Products, replacing the Products or providing you with a refund of the price paid for the affected Products. We are not responsible for any defect in the Products that results wholly or partly from the incorrect use, installation, or storage of the Products, the act or omission of any other party, or a cause beyond our reasonable control. We are not responsible in any circumstances for any indirect, consequential or special loss, loss of profits or economic loss. Our liability at all times shall be limited to the purchase price of the Products.
    

2. Indemnity: You agree to indemnify Us against any loss, liability, cost or expense (including legal expenses on a full indemnity basis) suffered or incurred by Us as a result of supply of the Products and/or a breach of these Terms by You
    

3. Intellectual property: You agree and acknowledge that We are the exclusive owner or licensee of any intellectual property in Our Products or services. For the purpose of this clause, intellectual property includes trademarks, patents, copyrights, designs, layout-designs (topographies) of integrated circuits, processes and confidential information as may be applicable to the Products and to any advertising and promotional material, technical materials and user manuals/videos associated with the manufacture or supply of the Products that is capable of legal protection, regardless of whether such legal protection has been formally obtained (Intellectual Property). You agree that you will:

1. not, as a result of entering into any dealings with Us, or purchasing the Products from Us, acquire any intellectual property rights in the Products;

2. not challenge or dispute Our ownership of the Intellectual Property;

3. not do anything or omit to do anything which could detrimentally affect the ownership of the Intellectual Property;

4. not infringe Our Intellectual Property rights and notify Us of any suspected or actual infringement of the Intellectual Property rights immediately upon becoming aware of the same; and

5. comply with Our reasonable instructions and requests in relation to the maintenance of protection of the Intellectual Property.

1. Assignment: Neither party has the right to assign their obligations under these Terms without the prior written consent of the other party.
    

2. Governing Law: This agreement shall be governed by and construed in accordance with the laws of New Zealand and each party submits to the non-exclusive jurisdiction of the New Zealand Courts.
    

3. No Waiver: If either party delays or does not exercise any right or remedy under these Terms, it is not a waiver of that right or remedy.
    

4. Severability: If any clause of these Terms is found by any court of law to be invalid or otherwise not binding on the parties, or if the parties between themselves agree that one or more clauses are no longer to have effect, the rest of the clauses of these Terms shall continue in full force and effect.
    

5. No reliance: Our obligations in relation to the supply of the Products are set out in these Terms and You agree to the Terms entirely in reliance on Your own skill and judgment and not in reliance on any conduct, statement or warranty made by Us or any other party.
    

6. Notices: Any notice or other communication required or permitted pursuant to this Agreement must be given in writing and delivered personally or sent by prepaid post or by e-mail to the address specified by each party from time to time. Any notice or other communication sent by post will be deemed to have been given 5 Business Days after posting.  Any notice or other communication sent by e-mail will be deemed to have been given on the next Business Day when acknowledged by the recipient by return e-mail or otherwise in writing except that return e-mails generated automatically will not constitute an acknowledgment.

 

Last updated: 2nd April 2024