“Client” means the person/s, entities or any person acting on behalf of and with the authority of the Client requesting Finishrite Pools Limited (Finishrite) to provide the Works as specified in any proposal, quotation, order, invoice or other documentation.
“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.
“Contractor” or ‘Finishrite’ means Finishrite Pools Limited, its successors and assigns, or any person acting on behalf of and with the authority of Finishrite Pools Limited.
“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 Aquaflow’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.
“Materials” or ‘Goods’ means all goods, products, equipment, or items supplied by Finishrite to the Client at the Client’s request from time to time, including but not limited to swimming pool liners, kit-sets, pool equipment, related accessories, and any other items necessary for the completion of the Works. Where the context permits, the terms “Materials” and “Goods” shall be interchangeable.
“Price” means the Price payable (plus any Goods and Services Tax (“GST”) where applicable) for the Works as agreed between Finishrite and the Client in accordance with clause 2 below.
“Works” means all Works (including consultation, manufacturing and/or installation services) supplied by Finishrite to the Client at the Client’s request from time to time (where the context so permits the terms “Works” or “Services” shall be interchangeable for the other).
“Worksite” means the address nominated by the Client to which the Materials are to be supplied and/or Works are to take place by Finishrite
1.1. 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 any Works.
1.2. Any amendment to the terms and conditions contained in this Contract may only be amended in writing by the consent of both parties.
1.3. In the event of any inconsistency between this and any other document forming part of the Contract, these Terms & Conditions shall prevail.
1.4. Any advice, recommendation, information, assistance, or service provided by Finishrite to the Client or the Client’s agent, in relation to Materials or Works supplied, is given in good faith and is based on Finishrite’s own knowledge and experience. Finishrite shall not be held liable for such advice or recommendations.
1.5. Where Finishrite gives advice or recommendations to the Client or the Client’s agent, and such advice or recommendations are not acted upon, then Finishrite shall require the Client or their agent to authorise commencement of the Works in writing. Finishrite shall not be liable in any way whatsoever for any damages or losses that occur after any subsequent commencement of the Works.
1.6. The Client acknowledges that, after receiving a signed copy of the agreement between the Client and Finishrite, there is no official cooling-off period in this contract. Therefore, any decision to withdraw from the contract shall be at Finishrite’s sole discretion. The Client is encouraged to carefully review all aspects of the contract and seek independent advice before signing.
1.7 If the Client asks Finishrite to prepare a price that involves multiple site visits or third-party involvement, including but not limited to engineers, surveyors, or local councils, the Client shall be responsible for covering all associated costs. These expenses will be charged to the Client, regardless of whether the Works ultimately proceed.
1.8. Electronic Signatures shall be deemed to be accepted and legally binding by either party, provided that the parties have complied with Section 226 of the Contract and Commercial Law Act 2017 or any other applicable provisions of that Act, including any relevant Regulations referred to therein. The parties acknowledge that electronic signatures, when used in accordance with the aforementioned legal requirements, shall have the same force and effect as handwritten signatures and shall be admissible as evidence in any legal proceedings to the fullest extent permitted by law.
1.9. If this contract is subject to finance approval, the Client shall provide written confirmation of loan approval to Finishrite before commencing any Works. The Client acknowledges that securing necessary finance approval is their responsibility. If finance approval is not obtained, this contract will be deemed cancelled. Finishrite will assess the situation and determine any possible refund of the deposit on a case-by-case basis, considering any reasonable expenses incurred by Finishrite.
1.10. The client acknowledges and accepts:
2.1. At Finishrite’s sole discretion the Price shall be either:
2.2. Finishrite reserves the right to change the Price:
2.3. Variations will be charged for on the basis of Finishrite’s quotation, and will be detailed in writing, and shown as variations on Finishrite’s invoice. The Client shall be required to respond to any variation submitted by Finishrite within ten (10) working days. Failure to do so will entitle Finishrite 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.
2.4. The Price will be payable by the Client on the date/s determined by Finishrite, which may be as follows:
failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Client by Finishrite.
2.5 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 Finishrite nor to withhold payment of any invoice because part of that invoice is in dispute, unless the request for payment by Finishrite is a claim made under the Construction Contracts Act 2002. Nothing in this clause
2.5 prevents the Client from the ability to dispute any invoice.
2.6. At Finishrite’s sole discretion a non-refundable deposit may be required.
2.7. Finishrite has the discretion to apply any payment received from the Client towards the outstanding balance on any invoice as Finishrite deems appropriate. This allocation may occur at the time of receipt or at a later time as determined by Finishrite. In the event of a default by the Client, Finishrite reserves the right to re-allocate any previously received and allocated payments. If Finishrite does not explicitly specify an allocation, the payment will be deemed to be allocated in a manner that maximises Finishrite’s Purchase Money Security Interest, as defined in the Personal Property Securities Act 1999 (PPSA), in the Materials.
2.8. Payment to be made by electronic/online banking only.
2.9 Unless otherwise stated, the Price does not include GST. The Client is responsible for paying the GST amount in addition to the Price, as required by Finishrite. Any other applicable taxes and duties are also the responsibility of the Client, unless expressly included in the Price.
3.1. Subject to clause 3.2 and 3.3 it is Finishrite’s responsibility to ensure that the Works start as soon as it is reasonably possible.
3.2. The project commencement date shall be subject to the following conditions:
3.3. The Works’ commencement date will be put back and the completion date extended by whatever time is reasonable in the event that Finishrite claims an extension of time (by giving the Client written notice) where completion is delayed by an event beyond Finishrite’s control, including but not limited to:
3.4. Any costs incurred by Finishrite in relation to clauses 3.2 and 3.3 will be passed on to the Client.
3.5. Any time specified by Finishrite for delivery of the Works is an estimate only and Finishrite will not be liable for any loss or damage incurred by the Client as a result of delivery being late. However, both parties agree that they shall make every endeavour to enable the Works to be supplied at the time and place as was arranged between both parties. In the event that Finishrite is unable to supply the Works as agreed solely due to any action or inaction of the Client, then Finishrite shall be entitled to charge a reasonable fee for re-supplying the Works at a later time and date, and/or for storage of the Materials.
3.6. The Client acknowledges and accepts that Finishrite must be notified in writing within forty-eight (48) hours of the proposed commencement date, as agreed between both parties, if the Client wishes to postpone the Works. Notice received outside this timeframe may result in Finishrite charging a reasonable fee for the delay in the commencement of the Works.
4.1. It shall be the Client’s responsibility to:
4.2. Unless otherwise agreed in writing between the Client and Finishrite, it shall be the Client’s responsibility to, prior to Finishrite commencing the Works, advise Finishrite of the precise location of all underground services on the Worksite and clearly mark the same. The underground mains and services the Client must identify include, but are not limited to, electrical services, gas services, sewer services, pumping services, sewer connections, sewer sludge mains, water mains, irrigation pipes, telephone cables, fibre optic cables, oil pumping mains, and any other services that may be on the Worksite. Whilst Finishrite will take all care to avoid damage to any underground services the Client agrees to indemnify Finishrite in respect of all and any liability claims, loss, damage, costs and fines as a result of damage to services not precisely located and notified as per this clause 4.2.
4.3. Finishrite 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 if any of this information provided by the Client is inaccurate, Finishrite accepts no responsibility for any loss, damages, or costs resulting from such inaccuracies in the plans, specifications, or other information.
4.4 All customary building industry tolerances shall apply to the dimensions and measurements of the Works unless Finishrite and the Client agree otherwise in writing.
4.5. Where the Client supplies Finishrite with any design specifications, the Client shall be responsible for providing accurate data. Finishrite shall not be liable whatsoever for any errors or omissions in the Works that are caused by incorrect or inaccurate data being supplied by the Client.
4.6. In the event the Client provides information relating to measurements and quantities of Materials required for completing the Works, the Client is responsible for verifying the accuracy of the measurements and quantities before placing an order based on this information. Finishrite accepts no responsibility for any loss, damages, or costs resulting from the Client’s failure to comply with this clause.
4.7. Unless specified otherwise in this Contract, it is the Client’s responsibility to:
4.8. Following installation, the care, maintenance and cleanliness of a pool shall be the responsibility of the Client.
4.9. Finishrite will not accept any liability for discolouration, staining or roughness which may occur to or upon the pool surface caused by algae infestation, calcium scales, weed or vegetation deposit or mineral build up.
4.10. The Client accepts that some ground settling after installation of pools may occur and therefore also accepts that any settling that falls within industry and New Zealand Pool Standards shall not be considered a defect.
4.11. The Client acknowledges that Materials supplied may:
4.12. Where Finishrite requires that Materials, tools etc. required for the Works be stored at the site, the Client shall supply Finishrite a safe area for storage and shall take all reasonable efforts to protect all items from destruction, theft or damage. If any of the stored items are destroyed, stolen or damaged, then the cost of repair or replacement shall be the Client’s responsibility.
4.13. The Client acknowledges that no other tradespeople will interfere with any Works and/or Materials supplied under this Contract. Finishrite shall not be liable for any costs, damages, or loss, however arising from the Client’s failure to comply with this clause.
4.14. In the event that during the course of the Works, Finishrite discovers any fossils, artifacts, or any other remains of geological or archaeological interest, Finishrite reserves the right to halt all Works, remove any of their equipment from the Worksite, and immediately notify the Client. The Client acknowledges and agrees that any additional costs incurred by Finishrite as a result of any such delays (including, but not limited to, in the event Finishrite is unable to remove their equipment from the Worksite, etc.) shall be borne by the Client and treated as a variation in accordance with clause 2.2.
4.15. Prior to the commencement of the Works, the Client acknowledges that pools located on reactive clay soils may present specific structural challenges. The Client is advised to consider the soil conditions at the pool installation site. Proper precautions and professional assessments may be necessary to address potential issues arising from clay soils. The Client understands and agrees that any concerns or issues related to the soil conditions shall be the sole responsibility of the Client. Finishrite shall not be held liable for any structural problems or complications that may arise due to the characteristics of the soil at the installation site. The Client is encouraged to seek appropriate expert advice in such cases.
5.1. Where Finishrite is supplying Materials only, all risk for the Materials shall immediately pass to the Client on delivery and the Client must insure the Materials on or before delivery. Delivery of the Materials shall be deemed to have taken place immediately at the time that the Materials are delivered by Finishrite or Finishrite’s nominated carrier to the Client’s nominated delivery address (even if the Client is not present at the address). If the Client specifically requests Finishrite to deliver the Materials to an unattended location then such materials shall always be left at sole risk of the Client and it shall be the Client’s responsibility to ensure the Materials are insured adequately or at all. In the event that such Materials are lost, damaged or destroyed then replacement of the Materials shall be at the Client’s expense.
5.2. The Client agrees that all materials supplied by the Client or the Client’s third-party sub-contractors will:
5.3. Where the Client has supplied materials for Finishrite to complete the Works, the Client acknowledges that it accepts responsibility for the suitability of purpose, quality, and any faults inherent in those materials. However, if, in Finishrite’s opinion, it is believed that the materials supplied by the Client will not conform to New Zealand regulations, then Finishrite shall be entitled, without prejudice, to halt the Works until the appropriate conforming materials are sourced by the Client, and all costs associated with such a change to the plans will be invoiced to the Client in accordance with clause 2.2.
6.1. The Buyer waives the right to receive a copy of the verification statement confirming registration of a financing statement or financing change statement relating to a security interest under these terms of trade. The Buyer also agrees that nothing in sections 114(1)(a), 133 and 134 of the PPSA will apply to any security under these terms of trade and further waives its rights under sections 120(2), 121,125, 129, 131 and 132 of the PPSA.
7.1. The Client shall inspect the Materials on delivery and shall within three (3) days of delivery notify Finishrite of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Client shall afford Finishrite an opportunity to inspect the Materials within a reasonable time following delivery if the Client believes the Materials are defective in any way. If the Client shall fail to comply with these provisions the Materials shall be presumed to be free from any defect or damage. For defective Materials, which Finishrite has agreed in writing that the Client is entitled to reject, Finishrite’s liability is limited to either (at Finishrite’s discretion) replacing the Materials or repairing the Materials.
7.2. Returns will only be accepted provided that:
7.3. If the Client reports any defects in the Works within 12 months from the date of completion and communicates them to Finishrite in writing during this period, Finishrite shall promptly rectify such defects. Finishrite will make reasonable efforts to address any reported defects within this 12-month period.
7.4. The Client’s rights under this clause are in addition to any other rights and remedies the Client may have under the New Zealand Building Act 2004 and the Consumer Guarantees Act 1993. These acts provide essential protections and warranties for construction projects and set guarantees for goods and services supplied in trade, ensuring they meet certain standards of quality and fitness for purpose.
8.1. Subject to the conditions of warranty set out in clause 8.2 Finishrite warrants that if any defect in any Works provided by Finishrite becomes apparent and is reported to Finishrite within three months of the date of completion then Finishrite will either (at Finishrite’s sole discretion) replace or remedy the defect.
8.2. The conditions applicable to the warranty given by clause 8.1 are:
8.3. For Materials supplied by Finishrite, the warranty shall be the current warranty provided by the manufacturer of the Materials. Finishrite 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 Materials.
8.4. Notwithstanding the provisions of clause 7; in order to ensure the validity of the warranty, the Client must grant Finishrite the first refusal to inspect and remedy any alleged claim. Engaging a third party for rectification without Finishrite’s consent will void any previously offered warranty.
9.1. The Client shall ensure that Finishrite has clear and free access to the worksite to enable them to undertake the Works. Finishrite shall not be liable for any loss, damage, or costs to the worksite and its surroundings, including but not limited to pathways, trees, shrubs, driveways, concreted or paved areas, lawns, underground pipes, and aboveground services unless due to the negligence of Finishrite or engaged contractors.
9.2. It is the responsibility of the Client to ensure that access to the worksite is suitable to accommodate the weight of laden trucks, front-end loaders, or other earth-moving equipment as may be deemed necessary by Finishrite. The Client agrees to indemnify Finishrite against all costs incurred by Finishrite in recovering such vehicles in the event they become stuck or otherwise immovable.
9.3. The Client acknowledges and agrees that in the event Finishrite requires access, in order to undertake the Works, to an adjoining or adjacent property or land not owned by the Client, then it is the Client’s responsibility to gain permission from the landowner to use the above-mentioned property throughout the process of delivering the Works. In the event the landowner denies access or use of the land or property, the Client shall be liable for all costs incurred by Finishrite in gaining permission to access and/or use the property through any legal process that may be deemed necessary.
9.4. The Client shall ensure that the correct traffic and pedestrian measures are in place. Failure to do so will result in the Client becoming liable for any costs incurred by Finishrite.
9.5. The Client must ensure that there are no height restrictions or overhead power lines (or any other obstruction) likely to hinder Finishrite from undertaking the Works.
9.6. Finishrite may exclude persons from the site, other than the Client or the Client’s representative, however, the Client and the Client’s representative must not interfere with the performance of the Works.
9.7. If the Client fails to comply with this clause, the Client is liable to Finishrite for any delay, and any increase in cost to Finishrite in carrying out the Works as a result.
10.1. The Client shall ensure their presence on the worksite to supervise the marking out of the fence line, placement of boundary pegs, and during the fence installation. If the Client disagrees with any decisions made by Finishrite during their absence and requires rectification, the cost of such rectification shall be borne by the Client. If the Client fails to comply with this clause and is absent during the installation, Finishrite accepts no responsibility for installation decisions that need to be made in the Client’s absence.
10.2. The Client acknowledges and agrees that it is their responsibility to arrange for the removal of any existing fence (including existing footings), trees, vines, and shrubs to provide Finishrite with unobstructed access along the proposed fence line before the commencement of work. This is unless otherwise agreed in writing between Finishrite and the Client. It is essential to note that Finishrite will not handle the removal of any asbestos products under any circumstances.
10.3. Finishrite shall not assume any liability or responsibility for any issues related to the excavation of land under fence lines. Additionally, Finishrite retains the sole discretion to determine whether any renewal or replenishment of
soil at the worksite shall be undertaken.
10.4. Finishrite reserves the right to rectify any imperfections or damages to products supplied during the works.
10.5. Unless otherwise specified in the quote, the standard duration of temporary fencing provided by Finishrite is six to eight weeks. If temporary fencing is not included in the quote, there shall be no expectation for Finishrite to provide or cover the cost of temporary fencing.
10.6 When the Client is responsible for arranging and installing temporary fencing:
10.7. In the event of delays caused by Client-arranged works, resulting in an extended project timeline beyond the agreed-upon schedule, the Client shall be responsible for covering the ongoing costs of temporary fencing and shall bear all liability arising from the absence or alteration of the temporary fencing.
10.8 Liability:
10.9 Additional Provisions:
11.1. Prior to Finishrite commencing any works, the Client must advise Finishrite of the precise location of all known Asbestos/Hazardous Materials on the site and provide clear and specific identification or labeling of these materials. Removal from the site and the disposal of asbestos/hazardous materials shall at all times be the Client’s responsibility unless otherwise agreed in writing.
11.2. If Finishrite discovers Asbestos/Hazardous materials while undertaking any works, Finishrite shall immediately advise the Client. Finishrite may also suspend the Works pending a risk assessment in relation to those materials. The Client shall be liable for all additional costs incurred by Finishrite as a result of the discovery of asbestos/hazardous materials and/or any suspension of works related to them.
11.3. As per clause 11.1; In situations where the presence of Asbestos/Hazardous Materials is discovered during the course of the Works, the Client shall be solely responsible for the safe and compliant removal of such materials. Finishrite will not handle the removal of any Asbestos products, and the Client agrees that any costs or actions related to the removal and disposal of Asbestos/Hazardous Materials shall be borne by the Client.
12.1. The Client and Finishrite shall comply with the provisions of all statutes, regulations, and bylaws of government, local, and other public authorities that may be applicable to the Works, including any other Worksafe health and safety laws relating to worksites and any other safety standards or legislation.
12.2. The Client shall be responsible for obtaining any necessary building consent, resource consent, and other licenses and approvals required for the Works. Finishrite will require confirmation that all consents and approvals have been obtained by the Client prior to the commencement of the Works. If any required consents are only obtained following the commencement of the Works, any additional cost incurred due to any changes to the original plans and specifications provided by the Client shall be charged as a variation.
12.3. Finishrite agrees at all times to comply with sections 28 and 34 of the Health & Safety at Work Act 2015 (the “HSW Act”), meeting their obligations for health and safety.
12.4. Finishrite shall, upon installation, ensure that all Materials are manufactured and installed in a manner that is fully compliant with industry standards, most notably AS/NZS 1838:1994, 1839:1994, and Building Act 2004, clause F9. 2004. If the Client requires the Materials to be installed in a way that does not meet these standards, Finishrite offers no warranty and reserves the right to rescind the contract without any loss or damages liability to them.
13.1. Finishrite and the Client agree that ownership of the Materials and Fixtures shall not pass to the Client until all payment obligations to Finishrite have been fulfilled, and all other obligations to Finishrite have been met.
13.2. It is further agreed that:
14.1. If the Client is acquiring Materials 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 Materials by Finishrite to the Client.
15.1. Where Finishrite has designed, drawn, written plans or a schedule of Works, or created any products for the Client, then the copyright in all such designs, drawings, documents, plans, schedules and products shall remain vested in Finishrite, and shall only be used by the Client at Finishrite’s discretion. Under no circumstances may such designs, drawings and documents be used without the express written approval of Finishrite.
15.2. The Client warrants that all designs, specifications, or instructions given to Finishrite will not cause Finishrite to infringe any patent, registered design, or trademark in the execution of the Client’s order. The Client agrees to indemnify Finishrite against any action taken by a third party against Finishrite in respect of any such infringement. Any approval or written consent required from Finishrite shall be obtained in writing.
15.3. The Client agrees that Finishrite may, at no cost to Finishrite, use for marketing or promotional purposes, or for entry into any competition, any documents, designs, drawings, plans, products, photos, and videos which Finishrite has created for or taken on-site during the project for the Client.
16.1. Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month.
16.2. If the Client owes Finished any money the Client shall indemnify Finishrite from and against all costs and disbursements incurred by Finihsrite in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, Finishrite’s collection agency costs, and bank dishonour fees).
16.3. Further to any other rights or remedies Finishrite may have under this Contract, if a Client has made payment to Finishrite, 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 Finishrite under this clause 16, where it is found that such reversal is illegal, fraudulent, or in contravention of the Client’s obligations under this Contract.
16.4. Without prejudice to Finishrite’s other remedies at law, Finishrite shall be entitled to cancel any or all parts of any contract or agreement with the Client which remains unfulfilled, and all amounts owing to Finishrite shall, whether due for payment or not, become immediately payable if:
17.1. Any written notice required by these Terms & Conditions shall be deemed to have been given and received:
18.1 Without prejudice to any other rights or remedies Finishrite may have, if at any time the Client is in breach of any obligation (including those relating to payment and/or failure to remedy any breach in respect of this Contract within ten (10) working days of receipt by the Client of such notice/s) then Finishrite may suspend or terminate the supply of the Works. Finishrite will not be liable to the Client for any loss or damage the Client suffers because Finishrite has exercised its rights under this clause.
18.2. Finishrite may cancel any contract to which these terms and conditions apply or cancel delivery of Works at any time before the Works are commenced by giving written notice to the Client. On giving such notice Finishrite shall repay to the Client any sums paid in respect of the Price, less any amounts owing by the Client to Finishrite for Works already performed. Finishrite shall not be liable for any loss or damage whatsoever arising from such cancellation.
18.3. In the event that the Client cancels the delivery of Works the Client shall be liable for any and all loss incurred (whether direct or indirect) by Finishrite as a direct result of the cancellation (including, but not limited to, any loss of profits).
18.4. Cancellation of orders for products made to the Client’s specifications, or for non-stocklist items, will not be accepted once production has commenced, or an order has been placed.
19.1. Where the Contract is subject to section 24A of the Construction Contracts Act 2002, the Client hereby expressly acknowledges that:
19.2. If pursuant to any right conferred by this Contract, Finishrite suspends the Works and the default that led to that suspension continues un-remedied subject to clause 19.1
20.1. The Client acknowledges and accepts that Finishrite shall not be held liable for any alleged or actual error(s) and/or omission(s) without prejudice.
20.2. In the event that an error and/or omission occurs in accordance with clause 19.1 and such occurrence is not attributable to the negligence and/or willful misconduct of Finishrite, the Client shall not have the right to treat this Contract as repudiated or render it invalid.
21.1. The Client acknowledges that Finishrite shall (for the duration of the Works) liaise directly with one authorised
representative, and that once introduced as such to Finishrite, that person shall have the full authority of the Client to
order any Works, and/or to request any variation thereto on the Client’s behalf. The Client accepts that they will be
solely liable to Finishrite for all additional costs incurred by Finishrite (including Finishrite’s profit margin) in providing
any Works, or variation/s requested thereto by the Client’s duly authorised representative.
22.1. The Client shall promptly notify Finishrite in writing of any proposed change in ownership or any other modifications to the Client’s details, including but not limited to changes in the Client’s name, address, contact details, directors, trustees, or business practices. The Client shall provide this notice at least fourteen (14) days prior to the intended change.
22.2. If the Client fails to comply with the notice requirement stated in clause 21.1 and proceeds with the change in control or other details without prior written notice, the Client shall be held liable for any loss incurred by Finishrite as a result of such non-compliance.
23.1. A security interest is taken by Finishrite in all present or after-acquired Materials and Fixtures supplied by Finishrite to the Client. Ownership of the Materials and Fixtures shall remain with Finishrite until the completion of the Works and full payment of all amounts owing to Finishrite by the Client. The Client further acknowledges that these Terms & Conditions of Trade constitute a security agreement that creates a security interest in favor of Finishrite for all Materials and Fixtures previously supplied, present and after-acquired Materials and Fixtures, and intellectual property arising out of or in connection with the Services.
23.2. The Client also agrees to grant a “Purchase Money Security Interest” to Finishrite in respect of all amounts owed by the Client to Finishrite, as defined in the PPSA.
23.3. Where Materials and Fixtures supplied by Finishrite remain unpaid and are sold by the Client, the following provisions shall apply:
23.4. By accepting the specific goods and services mentioned in the Contract or Quote provided by Finishrite, the Client acknowledges and agrees that Finishrite may take necessary actions to protect its interests, including registering any applicable security interest or financing statement related to the Materials and Fixtures provided for the completion of the Works.
23.5. The Client agrees that the following sections of the PPSA shall not apply to these Terms & Conditions: 114(1)(a),133, and 134.
23.6. If any of the Goods are incorporated in or used as material for other goods before payment is made, ownership of the whole of the other goods shall remain with Finishrite until payment is made. Finishrite’s Security Interest in the Goods shall continue in accordance with the terms of section 82 of the PPSA.
23.7. The Client waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, and 131 of the PPSA.
23.8. Unless otherwise agreed to in writing by Finishrite, the Client waives its right to receive a verification statement in accordance with section 148 of the PPSA.
23.9. The Client shall unconditionally ratify any actions taken by Finishrite under clauses 17.1 to 17.8.
24.1. In consideration of Finishrite agreeing to supply the Works, the Client hereby grants Finishrite a security interest in all of its present and after-acquired rights, title, and interest in any land, realty, or other assets capable of being charged, whether owned solely or jointly by the Client, to secure the due and punctual performance by the Client of its obligations under these Terms & Conditions, including the payment of any money owed to Finishrite.
24.2. The Client agrees to indemnify Finishrite against all costs and disbursements, including legal costs on a solicitor and own Client basis, incurred by Finishrite in exercising its rights under this clause.
25.1. All emails, documents, images, or other recorded information held or used by Finishrite is Personal Information as defined and referred to in clause 24.3 and therefore considered confidential. Finishrite acknowledges its obligation in relation to the handling, use, disclosure, and processing of Personal Information pursuant to the Privacy Act 2020 (“the Act”). Finishrite acknowledges that in the event it becomes aware of any data breaches and/or disclosure of the Client’s Personal Information, held by Finishrite, that may result in serious harm to the Client, Finishrite 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 24.1, privacy limitations will extend to Finishrite in respect of Cookies used for transactions conducted directly through Finishrite’s website. Finishrite agrees to display references to such Cookies and/or similar tracking technologies, such as pixels and web beacons (if applicable). These technologies may collect Personal Information, including the Client’s IP address, browser, email Client type, and other similar details; track website usage and traffic; and provide reports to Finishrite when sending emails to the Client. In order to enable/disable the collection of Personal Information through Cookies, the Client shall have the right to do so by selecting the appropriate option on the website before proceeding with a transaction via Finishrite’s website.
25.3 The Client authorises Finishrite or Finishrite’s agent to:
25.4. Where the Client is an individual, the authorities granted under clause 25.3 are considered authorities or consents for the purposes of the Privacy Act 2020.
25.5. The Client shall have the right to request from Finishrite a copy of the personal information about the Client retained by Finishrite, and the right to request Finishrite to correct any incorrect personal information about the Client held by Finishrite
26.1 If the Client is acting as a trustee of any trust (“Trust”) upon or subsequent to entering into the Contract:
27.1. The failure by either party to enforce any provision of these Terms & 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 & 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.
27.2. These Terms & 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 Christchurch, New Zealand.
27.3. If any dispute or difference arises between the parties (Finishrite and the Client) concerning the Agreement, Contract or any aspect of Finishrite’s products, services, or dealings with each other, the parties agree to first attempt to resolve the matter in good faith through negotiation.
27.4. Upon the occurrence of a dispute, the initiating party shall promptly provide written notice to the other party, setting out the details of the matter and requesting a resolution in good faith. The receiving party shall respond in writing within a reasonable timeframe, as mutually agreed upon by the parties, not to exceed 20 working days from the date of receiving the notice.
27.5. If the receiving party fails to respond within the agreed-upon timeframe or if the parties cannot reach a mutually acceptable resolution through negotiation, the parties shall, in the first instance, have the right to submit the matter to mediation.
27.6. Mediation shall specifically address the disputed issues as outlined in the written notice provided by either party. The parties shall equally share the reasonable cost of mediation, unless either party (Finishrite or the Client) is determined to be at fault. If either party is determined to be at fault, that party shall bear the entire reasonable cost of mediation.
27.7. The parties agree to make a genuine effort to complete the mediation process within 30 working days from the initiation of mediation or any other agreed-upon period.
27.8. If mediation successfully resolves the dispute, the terms of the resolution shall be reduced to writing and signed by both parties as evidence of their agreement.
27.9. If mediation fails to resolve the dispute or if either party refuses to participate in the negotiation, the parties shall, as the next step, have the right to submit the matter to arbitration in accordance with the Arbitration Act 1996 or its replacement(s).
27.10. If arbitration fails to resolve the dispute, then the parties have the right to submit the dispute to the exclusive jurisdiction of the courts of New Zealand.
27.11. Finishrite is not a party to any disputes between the Client and contractors/subcontractors engaged by the Client or Finishrite, regardless of who introduced or engaged them. Finishrite shall have no direct involvement in the resolution of such disputes. However, Finishrite and the contractors/subcontractors may, if required, provide factual and non-biased assistance to either the Client or Finishrite in resolving the disputes in an advisory capacity.
27.12. Finishrite may elect to subcontract out any part of the Works but shall remain responsible for the satisfactory completion of the entire Contract with the Client. The parties (Finishrite and the Client) agree and understand that Finishrite has the authority to give instructions to any of Finishrite’s subcontractors concerning the Works without requiring further approval from the Client. However, the Client agrees not to provide any instructions directly to Finishrite’s subcontractors without prior approval from Finishrite.
27.13. Finishrite 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 Finishrite of these Terms & Conditions (alternatively Finishrite’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Works).
27.14. The parties (Finishrite and the Client) agree not to create, distribute, or engage in any negative communication, including but not limited to negative press, written statements, spoken words, online reviews, social media content, or any other form of communication, either directly or through third parties acting on their behalf, that could impact the other party’s reputation or future business prospects.
28.1 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm, or other event beyond the reasonable control of either party (referenced as Force-Majeure).
28.2 Finishrite’s Terms & Conditions of Trade may be amended from time to time by Finishrite, and the updated version shall be effective upon posting on Finishrite’s official website or providing notice to the Client. Any such amendments shall supersede and override any prior versions of the Terms & Conditions, regardless of the version in force at the time an agreement was entered into. Any agreement entered into prior to the effective date of a new version of the Terms & Conditions shall be subject to the newer version of the Terms & Conditions, unless expressly agreed otherwise in writing.
28.3. Finishrite may elect to subcontract out any part of the Works 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 Finishrite’s sub-contractors without the authority of Finishrite.
28.4. Both parties (Finishrite and the Client) warrant that they have the power and necessary authorizations to enter into this Contract. The Client acknowledges having the opportunity to review the Agreement, Contract, and Terms & Conditions with a legal representative, thereby confirming the enforceability and legality of this binding agreement. Additionally, both parties confirm their solvency at the time of entering into this Contract.
28.5. These terms of trade may only be varied by written agreement signed by both parties and shall be governed by and construed in accordance with the laws of New Zealand and subject to the non-exclusive jurisdiction of the New Zealand courts.
