Definitions 1.1 “Consultant” means 3D Home Designs Limited T/A 3D Home Designs, its successors and 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 Customer does not wish to allow Cookies to operate in the background when using the Consultant’s website, then the Customer 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 “Customer” means the person/s, entities or any person acting on behalf of and with the authority of the Customer requesting the Consultant to provide the Services as specified in any proposal, quotation, order, invoice or other documentation, and: (a) if there is more than one Customer, is a reference to each Customer jointly and severally; and (b) if the Customer is a partnership, it shall bind each partner jointly and severally; and (c) if the Customer is a part of a Trust, shall be bound in their capacity as a trustee; and (d) includes the Customer’s executors, administrators, successors and permitted assigns. 1.5 “Price” means the Price payable (plus any Goods and Services Tax (“GST”) where applicable) for the Goods as agreed between the Consultant and the Customer in accordance with clause 5 below. 1.6 “Services” means all Goods (which includes but is not limited to any files, information, data, printed or virtual material, software, hardware, models) or Services (which includes but is not limited to any design, advice or recommendations, technical service and support etc.) supplied by the Consultant to the Customer at the Customer’s request from time to time (where the context so permits the terms ‘Goods’ or ‘Services’ shall be interchangeable for the other).
Acceptance 2.1 The parties acknowledge and agree that: (a) they have read and understood the terms and conditions contained in this Contract; and (b) the parties are taken to have exclusively accepted and are immediately bound, jointly and severally, by these terms and conditions if the Customer places an order for or accepts provision of the Services. 2.2 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. 2.3 Any amendment to the terms and conditions contained in this Contract may only be amended in writing by the consent of both parties. 2.4 The Customer acknowledges that the supply of Services on credit shall not take effect until the Customer has completed a credit application with the Consultant and it has been approved with a credit limit established for the account. 2.5 In the event that the supply of Services requested exceeds the Customer’s credit limit and/or the account exceeds the payment terms, the Consultant reserves the right to refuse delivery. 2.6 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.
Errors and Omissions 3.1 The Customer acknowledges and accepts that the Consultant 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 the Consultant 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 the Consultant in respect of the Services. 3.2 If such an error and/or omission occurs in accordance with clause 3.1, and is not attributable to the negligence and/or wilful misconduct of the Consultant; the Customer: (a) shall not be entitled to treat this Contract as repudiated nor render it invalid; but (b) shall not be responsible for any additional costs incurred by the Consultant arising from the error or omission.
Change in Control 4.1 The Customer shall give the Consultant not less than fourteen (14) days prior written notice of any proposed change of ownership of the Customer and/or any other change in the Customer’s details (including but not limited to, changes in the Customer’s name, address and contact phone or fax number/s, change of trustees or business practice). The Customer shall be liable for any loss incurred by the Consultant as a result of the Customer’s failure to comply with this clause.
Price and Payment 5.1 At the Consultant’s sole discretion the Price shall be either: (a) as indicated on any invoice provided by the Consultant to the Customer; or (b) the Consultant’s quoted Price (subject to clause 5.2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days. 5.2 The Consultant reserves the right to change the Price: (a) if the Consultant agrees that there will be no charge in the preparation of the initial quotation, which may include Customer discussions, project scoping, etc. However, in some instances the aforementioned Services may be charged to the Customer additionally (at the Cnsultant’s sole discretion); or (b) if a variation to the Services (including any variation to the brief, specifications, style, type, layout, artwork, additional proof changes are required, or where design packages are chosen and additional time is necessary due to the Customer’s requests, then such time is subject to the Consultant’s hourly rate or required due to changes in regulations, etc.; or (c) where additional Services are required due to the discovery of hidden or unidentifiable difficulties (including, but not limited to, change in scope of work, change to methodology, inaccurate measurements, change of design, medium, delivery or any delays caused by the Customer, etc.) which are only discovered on commencement of the Services; or (d) in the event of increases to the Consultant in the cost of labour or materials which are beyond the Consultant’s control. 5.3 Variations will be charged for on the basis of the Consultant’s quotation, and will be detailed in writing, and shown as variations on the Consultant’s invoice. The Customer shall be required to respond to any variation submitted by the Consultant within ten (10) working days. Failure to do so will entitle the Consultant 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. 5.4 At the Consultant’s sole discretion a reasonable non-refundable deposit may be required. 5.5 Time for payment for the Goods being of the essence, the Price will be payable by the Customer on the date/s determined by the Consultant, which may be: (a) on completion or before delivery of the Services; (b) by way of instalments/progress payments in accordance with the Consultant’s payment schedule; (c) for certain approved Customers, due twenty (20) days following the end of the month in which a statement is posted to the Customer’s address or address for notices; (d) the date specified on any invoice or other form as being the date for payment; or (e) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Customer by the Consultant. 5.6 Payment may be made by electronic/on-line banking, or by any other method as agreed to between the Customer and the Consultant. 5.7 The Consultant may in its discretion allocate any payment received from the Customer towards any invoice that the Consultant determines and may do so at the time of receipt or at any time afterwards. On any default by the Customer the Consultant may re-allocate any payments previously received and allocated. In the absence of any payment allocation by the Consultant, payment will be deemed to be allocated in such manner as preserves the maximum value of the Consultant’s Purchase Money Security Interest (as defined in the PPSA) in the Goods. 5.8 The Customer shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Customer by the Consultant nor to withhold payment of any invoice because part of that invoice is in dispute. 5.9 Unless otherwise stated the Price does not include GST. In addition to the Price, the Customer must pay to the Consultant an amount equal to any GST the Consultant must pay for any supply by the Consultant under this or any other contract for the sale of the Goods. The Customer must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Customer pays the Price. In addition, the Customer 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.
Provision of the Services 6.1 Each project is unique to a Customer and the costings of a project are estimated and based on the requirements as defined by the Customer at the initial meeting and shall include the hours and timeframe that the Consultant envisages it will take to complete, (subject to variations as per clause 5.2).The estimate covers the following: (a) all technical, mandatory requirements and assumptions clearly itemised and disclosed by the Customer prior to the initiation of the project to ensure all expected features and functionality have been correctly estimated; and (b) any additional work requested or required outside of the original estimate/scope needs to be agreed that the Consultant is entitled to re-estimate the charges and timeframe without prejudice. 6.2 The Consultant may deliver the Services by separate instalments. Each separate instalment shall be invoiced and paid for in accordance with the provisions in these terms and conditions. 6.3 Any time specified by the Consultant for delivery of the Services is an estimate only and the Consultant will not be liable for any loss or damage incurred by the Customer as a result of delivery being late. However, both parties agree that they shall make every endeavour to enable the Services to be supplied at the time and place as was arranged between both parties. In the event that the Consultant is unable to supply the Services as agreed solely due to any action or inaction of the Customer then the Consultant shall be entitled to charge a reasonable fee for re-supplying the Services at a later time and date.
Risk 7.1 Irrespective of whether the Consultant retains ownership of any Goods all risk for such items shall pass to the Customer as soon as such items are delivered to the Customer and shall remain with the Customer until such time as the Consultant may repossess the Goods in accordance with clause 9. The Customer must insure all Goods on or before delivery. 7.2 The Consultant reserves the right to seek compensation or damages for any damage, destruction or loss suffered in relation to the Goods as a result of the Customer’s failure to insure in accordance with clause 7.1. 7.3 Where the performance of any contract with the Customer requires the Consultant to obtain materials or services from a third party, the Contract between the Consultant and the Customer shall incorporate and shall be subject to the conditions of supply of such materials and services to the Consultant, and the Customer shall be liable for the cost in full including the Consultant’s margin of such materials or services. 7.4 The Consultant is under no obligation to provide samples of Services ordered other than by virtual (computerised) sample. Whilst every effort will be taken by the Consultant to match virtual colours with physical colours, the Consultant will take no responsibility for any variation between virtual sale samples and either the virtual sale sample displayed on the Customer’s computer and/or the final product.
Compliance with Laws 8.1 The Customer and the Consultant 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.
Title 9.1 The Consultant and the Customer agree that the Customer’s obligations to the Consultant for the provision of Services shall not cease (and ownership of any Goods shall not pass) until: (a) the Customer has paid the Consultant all amounts owing to the Consultant; and (b) the Customer has met all of its other obligations to the Consultant. 9.2 Receipt by the Consultant 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.
Personal Property Securities Act 1999 (“PPSA”) 10.1 In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA. 10.2 Upon assenting to these terms and conditions in writing the Customer acknowledges and agrees that these terms and conditions constitute a security agreement for the purposes of the PPSA and creates a security interest in: (a) all Goods previously supplied by the Consultant to the Customer; (b) all Goods that will be supplied in the future by the Consultant to the Customer and the proceeds from such Goods as listed by the Consultant to the Customer in invoices rendered from time to time; and (c) all the Customer’s present and after acquired property being a charge, including anything in respect of which the Customer has at any time a sufficient right, interest or power to grant a security interest in for the purposes of securing repayment of all monetary obligations of the Customer to the Consultant for Services – that have previously been provided and that will be provided in the future by the Consultant to the Customer. 10.3 The Customer 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 the Consultant may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register; (b) indemnify, and upon demand reimburse, the Consultant 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 the Consultant. 10.4 Unless otherwise agreed to in writing by the Consultant, the Customer waives its right to receive a verification statement in accordance with section 148 of the PPSA. 10.5 The Customer shall unconditionally ratify any actions taken by the Consultant under clauses 10.1 to 10.4. 10.6 Subject to any express provisions to the contrary (including those contained in this clause 10), nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.
Security and Charge 11.1 In consideration of the Consultant agreeing to supply Services, the Customer 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 Customer either now or in the future, and the Customer grants a security interest in all of its present and after-acquired property, to secure the performance by the Customer 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. 11.2 The Customer indemnifies the Consultant from and against all the Consultant’s costs and disbursements including legal costs of a solicitor and own client basis incurred in exercising the Consultant’s rights under this clause. 11.3 The Customer irrevocably appoints the Consultant and each director of the Consultant as the Customer’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 11 including, but not limited to, signing any document on the Customer’s behalf.
Defects 12.1 The Customer shall inspect the Services on delivery and shall within seven (7) days of delivery notify the Consultant of any alleged defect, shortage in quantity, errors, omissions or failure to comply with the description or quote.The Customer shall afford the Consultant an opportunity to inspect the Services within a reasonable time following delivery if the Customer believes the Services are defective in any way. If the Customer shall fail to comply with these provisions, the Services shall be conclusively presumed to be in accordance with the terms and conditions and free from any defect or damage. 12.2 For defective Services, which the Consultant has agreed in writing that the Customer is entitled to reject, the Consultant’s liability is limited to either (at the Consultant’s discretion) replacing the Services or rectifying the Services provided that the Customer has complied with the provisions of clause 12.1.
Consumer Guarantees Act 1993 and the Fair Trading Act 1986 13.1 If the Customer is acquiring Services for the purposes of a trade or business, the Customer acknowledges that the provisions of the Consumer Guarantees Act 1993 (“CGA”) do not apply to the supply of Services by the Consultant to the Customer. 13.2 The Consultant agrees to abide by the provisions of the Fair Trading Act 1986 (“FTA”).
Intellectual Property 14.1 If during the course of providing the Services, the Consultant develops, discovers, or puts into operation a new concept, product or process which is capable of being patented, then such concept, product or process shall be and remain the property of the Consultant and the Customer shall not use or supply the same in any way whatsoever without first obtaining the written consent of the Consultant. 14.2 The Customer warrants that all designs, specifications, information, and instructions to the Consultant will not cause the Consultant to infringe any patent, registered design, or trademark in the execution of the Customer’s order. Furthermore, the Customer agrees to indemnify, defend, and hold the Consultant harmless from all loss incurred or suffered by the Consultant arising from any claims (including third party claims) or demands against them where such loss was caused by any infringement or alleged infringement of any person’s intellectual property rights by the Customer during its use of the Services. 14.3 Any coding and other supplied code or link remains the intellectual property of the Consultant. Copying or disseminating the code or link for any purpose whatsoever is strictly forbidden and will be a breach of copyright. 14.4 Where the Consultant has developed software (and associated documentation), electronic tools, links and/or for any of the Consultant’s source code (“Tools”), then a copyright in those Tools shall remain vested in the Consultant and the Consultant retains ownership and all intellectual property rights thereof but grants the Customer a non-exclusive and non-transferable licence for its use (solely in relation to the operation of the Customer’s own business).The Customer will use any Tools supplied by the Consultant, and identified as such, strictly in terms of the licence (or any other conditions imposed by the Consultant) under which it is supplied.The Customer further agrees that they shall not without the Consultant’s prior written consent: (a) use in any way, or rely on the Tools for any purpose other than what it was designed or is suitable for; (b) copy, reproduce, translate, adapt, vary, merge, modify, or create any derivative work based on the Tools; (c) reverse engineer, decompile, disassemble, reconfigure or otherwise attempt to discover the source code of the software or assist another party to do the same; (d) sell, market, network, transfer, lease, licence, sub-licence, rent, lend, or otherwise distribute, the Tools in any way whatsoever; (e) combine the Tools with any other software and/or item, etc.; or (f) use the Tools to commit a crime (including, but not limited to, sending spam) and the Customer agrees to indemnify the Consultant against any action taken by a third party against the Consultant in respect of any such infringement. 14.5 Notwithstanding anything herein, upon termination of the Contract (in accordance with clause 16) the Consultant shall revoke the licence to use and remove any Tools.Once removed, the Consultant shall accept no liability and the Customer indemnifies the Consultant for any losses and/or damages (including, but not limited to, any subsequent security breach or virus infection, etc.) that may occur once the Consultant has removed their Tools. 14.6 Subject to New Zealand copyright laws (and/or any other applicable copyright laws) and the conditions therein, the Customer agrees that they shall not in any way sell, reproduce, adapt, distribute, transmit, publish, or create derivative works from, any part of the software (if supplied by the Consultant) without the Consultant’s prior consent in writing. 14.7 The Customer hereby authorises the Consultant to utilise images of the Services created by the Consultant in advertising, marketing, or competition material by the Consultant.
Default and Consequences of Default 15.1 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 the Consultant’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment. 15.2 If the Customer owes the Consultant any money the Customer shall indemnify the Consultant from and against all costs and disbursements incurred by the Consultant in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, the Consultant’s collection agency costs, and bank dishonour fees). 15.3 Further to any other rights or remedies the Consultant may have under this Contract, if a Customer has made payment to the Consultant, and the transaction is subsequently reversed, the Customer shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by the Consultant under this clause 15 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Customer’s obligations under this Contract. 15.4 Without prejudice to the Consultant’s other remedies at law the Consultant shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to the Consultant shall, whether or not due for payment, become immediately payable if: (a) any money payable to the Consultant becomes overdue, or in the Consultant’s opinion the Customer will be unable to make a payment when it falls due; (b) the Customer has exceeded any applicable credit limit provided by the Consultant; (c) the Customer 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 Customer or any asset of the Customer.
Cancellation 16.1 Without prejudice to any other remedies the parties may have, if at any time either party is in breach of any obligation (including those relating to payment) under these terms and conditions the other party may suspend or terminate the supply of Services or purchase of Goods to the other party. Neither party will be liable for any loss or damage the other party suffers because one of the parties has exercised its rights under this clause. 16.2 If the Consultant, due to reasons beyond the Consultant’s reasonable control, is unable to the deliver any Goods and/or Services to the Customer, the Consultant may cancel any Contract to which these terms and conditions apply or cancel Delivery of Goods and/or Services at any time before the Goods and/or Services are delivered by giving written notice to the Customer. On giving such notice the Consultant shall repay to the Customer any money paid by the Customer for the Goods and/or Services. The Consultant shall not be liable for any loss or damage whatsoever arising from such cancellation. 16.3 The Customer may cancel Delivery of the Goods and/or Services by written notice served within twenty-four (24) hours of placement of the order. Failure by the Customer to otherwise accept Delivery of the Goods and/or Services shall place the Customer in breach of this Contract. 16.4 Cancellation of orders for Goods made to the Customer’s specifications, or for non-stocklist items, will definitely not be accepted once production has commenced, or an order has been placed.
Service of Notices 18.1 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. 18.2 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.
Trusts 19.1 If the Customer at any time upon or subsequent to entering in to the Contract is acting in the capacity of trustee of any trust or as an agent for a trust (“Trust”) then whether or not the Consultant may have notice of the Trust, the Customer covenants with the Consultant as follows: (a) the Contract extends to all rights of indemnity which the Customer now or subsequently may have against the Trust, the trustees and the trust fund; (b) the Customer has full and complete power and authority under the Trust or from the Trustees of the Trust as the case maybe 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 Customer against the Trust, the trustees and the trust fund. The Customer 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 Customer will not during the term of the Contract without consent in writing of the Consultant (the Consultant will not unreasonably withhold consent), cause, permit, or suffer to happen any of the following events: (i) the removal, replacement or retirement of the Customer 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 fund or trust property.
General 20.1 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. 20.2 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 Auckland, New Zealand. 20.3 Subject to the CGA, the liability of the Consultant and the Customer under this Contract shall be limited to the Price. 20.4 The Consultant may licence and/or assign all or any part of its rights and/or obligations under this Contract without the Customer’s consent provided the assignment does not cause detriment to the Customer. 20.5 The Customer cannot licence or assign without the written approval of the Consultant. 20.6 The Consultant 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 Customer agrees and understands that they have no authority to give any instruction to any of the Consultant’s sub-contractors without the authority of the Consultant. 20.7 The Customer agrees that the Consultant may amend their general terms and conditions for subsequent future Contracts with the Customer by disclosing such to the Customer in writing. These changes shall be deemed to take effect from the date on which the Customer accepts such changes, or otherwise at such time as the Customer makes a further request for the Consultant to provide Goods and/or Services to the Customer. 20.8 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 Customer to make any payment due to the Consultant, following cessation of a Force Majeure. 20.9 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.