Terms & Conditions

By requesting BKB Consultants Ltd T/A Aspiring Kitchens & More (‘The Company’) to supply the Goods and Services, the Client agrees (or is deemed to acknowledge and agree) that:
1.1 These Terms will apply to the supply of Goods and Services by the Company to the Client
1.2 These Terms shall be read, subject to the Terms and Conditions contained in the attached letter of
engagement (or Contract)

2.0 Interpretation
2.1 In these Terms;

• ‘Agreement’ means the Letter of Engagement (or Contract) and these Terms of Trade;

• ‘Company’ means BKB Consultants Ltd T/A Aspiring Kitchens & More

• ‘Client’ means the person(s) described, or referred to, on the Letter of Engagement (or Contract) which these Terms form part of, or (if applicable) the person(s) identified as such on any document which incorporates these Terms;

• ‘Fee’ or ‘Fees’ means the cost of provision of the Goods and Services agreed between the Company and the Client, subject to any variation in accordance with these Terms and, unless specifically agreed otherwise, in writing, is expressed exclusive of GST and any other applicable taxes and duties.

• ‘Goods’ means all present and after acquired materials, accessories, wood, hardware and wood products and associated products supplied by the Company, to the Client, from time to time as part of the Services and under this Agreement. Unless the context requires otherwise, Goods shall include all proceeds of sale of such Goods and any objects, products or mass which the Goods subsequently become part of.

• ‘Intellectual Property’ means all statutory, common law and other proprietary right, and any interest in any copyright, designs, drawings, plans, specifications, trade mark, trade name, inventions, know how, procedures and other technical information (whether protectable by registration or not) and including, where any such rights are obtained, or enhanced by registrations, any registration of such rights.

• ‘PPSA’ means the Personal Property Securities Act 1999;

• ‘Services’ means the services of kitchen and/or bathroom designs and/or installations, or any other building works, described in the attached Letter of Engagement (or Contract) provided by the Company to the Client;

• ‘Terms’ means these Terms of Trade.

3.0 Provision of Services
3.1 The Company will provide the Goods, and perform the Services, exercising a reasonable degree of skill,
care and diligence expected of a competent professional.
3.2 The Client is to provide the Company with all necessary information (including budget and timetable if
applicable) to enable the Company to clearly understand the Client’s requirements in order for the Company
to provide the Goods and Services.
3.3 The Company will endeavour to complete the work(s) within the time specified in the agreed timetable.
However, the Company cannot take responsibility for the work undertaken by other subcontractors involved.

4.0 Variations
4.1 Any requested variation to the Goods and Services outlined in the attached Letter of Engagement (or
Contract) must be notified in writing by the Client. Upon approval of such variation(s), by the Company, the
variations will constitute an amendment to this Agreement.
4.2 The Client agrees that any variations may result in additional costs and the Client shall be responsible for
the additional costs resulting from such variations.
4.3 Should the Client request the Company to work overtime or extra shifts, the Fee will be adjusted to reflect
the increase in cost based on the excess rates paid and working hours recorded.

5.0 Assignment of Work
5.1 The Company reserves the right to assign other subcontractors to provide the Goods and undertake the
Services to ensure quality and on-time completion.

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6.0 Fee and Payment
6.1 The Client shall pay the Fee to the Company for the Goods and Services as detailed in the Letter of
Engagement (or Contract).
6.2 The Company shall issue an invoice to the Client for the Goods and Services upon completion of Services,
based upon the agreed fee.
6.3 A deposit, comprising of 50% of the agreed price, must be paid prior to commencement of any work by
the company, with a Pre-Installation Payment of 40% of the agreed price, which is due seven (7) days before
the agreed installation date. Final payment of 10% is required on the completion of the agreed works. The cost
of any variation will be included in the final invoice unless agreed otherwise with the Client.
6.4 Kitchen plans remain the property of the Company and will be released to the Client either when a
contract for the works has been signed OR when a payment of $500 plus GST has been made to the Company.
If, subsequently, works go ahead, then this fee will be deducted from the total amount.
6.5 The Company has the right to charge the Client interest on any monies due, but unpaid, under the
Agreement, which interest will be calculated on a daily basis at a rate equal to 5% per month. Interest is
payable from the date payment was due until the date the Company receives the due payment. The
Company’s right to charge interest is without prejudice to any of the Company’s other rights, powers or
remedies arising after the Client’s payment default.
6.6 If payment of any invoice(s) is overdue for more than one month the Company may, at its discretion,
cancel this Agreement with the Client and discontinue from providing any further Services until the Client has
discharged all outstanding indebtedness to the Company. The Company also reserves the right to engage the
services of a debt recovery agency.
6.7 No credit shall be extended on overdue accounts.
6.8 Payment of all moneys shall be made without set-off or deduction of any kind.

7.0 Intellectual Property/Copyright
7.1 Copyright and Intellectual Property in all drawings, plans, specifications and other technical information
developed by the Company, in the provision of the Services, shall be vested in the Company. The Client shall
have no right to use any of these designs, drawings, plans, specifications or other technical information where
any, or all, of the fees (and disbursements) payable to the Company have not been paid in full.
7.2 The Client will acquire ownership of copyright upon payment of all Fees due to the Company in full.
7.3 The Company is entitled to retain copies of all designs, drawings, plans, specifications and other technical
information, or documentation, for its own purposes. The Company shall also be entitled to destroy the same
at any time.

8.0 Risk
8.1 All risk, in and for the Goods, shall pass to the Client, on delivery and installation, by the Company.
8.2 If any of the Goods are damaged or destroyed, prior to property in them passing to the Client, the
Company is entitled, without prejudice to any of its other rights or remedies under the Agreement (including
the right to receive payment of the Fee), to receive all insurance proceeds payable for the Goods. This applies,
whether the Fee has become payable or not, under the Agreement. The production of the Agreement
(including these Terms) by the Company is sufficient evidence of the Company’s right to receive the insurance
proceeds without the need for any person dealing with the Company, to make further enquiries.

9.0 Property
9.1 Property in, ownership of and title to, the Goods shall not pass to the Client until the Client Pays the Fee(s)
in full and all other amounts owing under this agreement.
9.2 Until all other moneys have been paid, the Client undertakes to:

9.2.1 Hold the Goods supplied as fiduciary for the Company and will only deal with them as agent for, and
behalf of, the Company (but will not hold itself out as the Company’s agent to any third parties.
9.2.2 To authorise the Company’s agent to enter the Client’s premises to remove any Goods supplied, and
resell them if an Event of Default occurs, or the Company reasonably believes an Event of Default may occur.
Such an authority is irrevocable:

9.2.3 If any of the Goods become part of a product or mass (through or by whatever process) such that the
identity of those Goods is lost in the product, or mass, the security interest, created by this clause, continues in
the product, or mass, in accordance with the PPSA;
9.2.4 If any Goods are installed in, or affixed to, and become an accession to, other goods, the security
interest continues in the accession in accordance with the PPSA.

10.0 Return of Goods
10.1 Except as provided in this clause, the Client is not entitled to return the Goods to the Company for any
reason. For defective Goods, which the Client is entitled to reject, the Company’s liability is limited to either;
(at the Company’s discretion) repairing, or replacing the Goods, or refunding the price provided that:

10.1.1 The Client must notify the Company, in writing, that the Goods are defective, within seven (7) days of
delivery;
10.1.2 The Company is given a reasonable opportunity to investigate the Client’s claim;
10.1.3 The Company will not be liable for Goods which have been tampered with, or modified, without the
Company’s approval or which have not been stored, or used, in a manner contrary to the Company’s, or
manufacturers, instructions.

11.0 Default
11.1 In the event of a breach, by the Client (‘Default Event’) without prejudice to any other rights, powers or
remedies, the Company may:

11.1.1 Suspend, or terminate the supply of Goods to the Client and any of its other obligations, under the
agreement, or cancel all, or any part, of any order with the Company, which remains unperformed;
11.1.2 Collect all Fee(s) owing, as they shall immediately become due, and payable, notwithstanding that the
due date for payment has not arisen; and
11.1.3 The Company may enforce any security interest granted to it by the Client.

11.2 The Client agrees that, at any time after a Default Event has occurred, or at any time that any Goods are
at risk, the Company may:

11.2.1 Take possession of any Goods; and/or
11.2.2 Sell, or dispose of, any Goods in such manner, and generally on such terms and conditions as the
Company thinks fit, and, in each case, otherwise do anything the Client could do to the Goods. The Company and the Client agree that Section 109(1) of the PPSA is contracted out in respect of particular Goods if, and only for, so long as the Company is not the secured party, with priority over all other secured parties in respect of those Goods. As agent for the Client, the Company (and its employees and agents) may, without prior notice, enter upon any land, or premises, where the Company believes the Goods are kept, in order to take possession of and/or remove them. The Client agrees to procure all other rights (including consents) necessary to enable, and to indemnify, the Company (and its employees and agents) against any liability incurred in connection with such entry, taking possession and removal.

12.0 PPSA

12.1 Security:

12.1.1 The Client acknowledges, and agrees, that:
12.1.1.1 By assenting to these Terms, the Client grants a security interest (by virtue of the ‘Retention of Title’
clause, in clause 10 of these Terms) to the Company in all Goods Supplied by the Company, to the Client (if any) and all Goods acquired after, supplied by the Company, to the Client (or for the Client’s account); and
12.1.2 These Terms shall apply, notwithstanding anything, express or implied, to the contrary contained in the Agreement.

 

12.2 Financing Statement:

12.1.1 The Client undertakes to:
12.1.1 Sign any further documents and/or provide any further information (which information the Client
warrants to be complete, accurate and up-to-date in all respects) which the Company may reasonably require to enable registration of a financing statement or financing change statement on the Personal Properties Securities Register;

12.2.1.2 Not register a financing change statement, or a change demand, in respect of the Goods (as those
terms are defined in the PPSA) without the Company’s prior written consent; and
12.2.1.3 Give the Company not less than 14 days prior written notice of any proposed change in the Client’s
name and/or any other change in its details (including, but not limited to, changes in address, telephone
number, trading name or business practice); 12.2.1.4 Not register, or agree to register, any financing statement granting security over the Goods, without the prior express written authority of the Company.

 

12.3 Waiver:

12.3.1 The Client waives its right to receive a verification statement, in respect of any financing statement or
financing change statement, relating to the security interest.

12.4 Contracting Out

12.4.1 The Client agrees that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these Terms and, contract out of such sections.
12.4.2 To the maximum extent, permitted by law, the Client waives its rights and contracts out of its rights
under the sections referred to in section 148 and 107(2)(Court) to (3) and (g) to (i) of the PPSA.

13.0 Force Majeure
13.1 The Company shall not be liable for any failure, or delay, in delivering the Goods and/or Services,
resulting from circumstances beyond its control, including, without limitation: default by third parties; strikes
and labour unrest; war; acts of terrorism; government or regulatory intervention; fire; flood; accident;
epidemics or pandemics; natural disaster; or any other event interpreted under New Zealand law as an ‘Act of
God’. If the Company invokes ‘Force Majeure’ it shall do all reasonable things, within its power, to end the
circumstances causing the Force Majeure, and to mitigate any losses that the Client may suffer, as a
consequence thereof. However, the Company shall not be liable for any such losses.

14.0 Termination
14.1 This Agreement will continue until the Goods have been installed and the Services completed by the
Company. The Company may terminate this Agreement by giving 30 days written notice to the Client, of its
intention to terminate.
14.2 Upon termination, any part of the Company’s Fee, for works completed up to the date of termination,
together with any other monies owing, shall forthwith become due and payable. Any such termination shall be
without prejudice to any claim, or right that the Company may otherwise possess. The Company will not be
liable for any damage or loss arising directly, or indirectly, in connection with the Services being terminated as
a result of the Client’s default.

15.0 Dispute Resolution
15.1 Should a dispute arise in relation to the Agreement, the Company and the Client must notify the other, in
writing, detailing the problems. An attempt, in good faith, to resolve the issues, must be made by both parties.
Should a resolution not be achieved, then the matter shall be referred to mediation. A notice requiring
mediation must be issued, in writing, by either party, within 30 working days of the notification of the dispute.
15.2 The Company and the Client shall endeavour to agree on a mediator. Each party shall be responsible for
its own costs in the mediation, and share the costs of the mediator. The mediator’s decision shall be binding,
unless either party notifies the other within 10 working days, that they reject the mediator’s decision. If
mediation has not settled the dispute, the matter shall be submitted to arbitration, where an arbitrator shall
conduct the proceedings in accordance with the Arbitration Act 1996. The Arbitrators decision is binding.

16.0 Severability
16.1 If any part of this Agreement (including these Terms) is held by any court to be illegal, void or
unenforceable, such determination shall not impair the enforceability of the remaining parts of this
Agreement.

17.0 Guarantee
17.1 In consideration of the Company providing the Goods and Services to the Client, the Guarantor
guarantees payment of all moneys, and the performance, by the Client of these Terms and indemnifies the
Company against any loss the Company might suffer as a result of any breach, or non-payment, by the Client.

17.2 The Guarantor covenants, with the Company, that no release, delay or other indulgence, given by the
Company, to the Client, or any other thing, whereby the Guarantor would have been released had the
Guarantor been merely a surety, shall release prejudice, or affect the liability of the Guarantor, as a Guarantor,
or as an indemnifier, and, as between the Guarantor and the Company, the Company shall be under no
obligation to take proceedings against the Client before taking proceedings against the Guarantor and, should
there be more than one Guarantor, their liability, under this guarantee, shall be joint and several.
17.3 The Guarantor acknowledges that this is a continuing guarantee and shall remain in full force, and effect,
for all purchases of Goods and Services made by the Client, either now or in the future.

18.0 Governing Law
18.1 These Terms shall be governed by the laws of New Zealand and the parties agree to submit to the
exclusive jurisdiction of New Zealand Courts.

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