A-Z Flooring Terms of Trade

Malnic Enterprises Ltd T/A A – Z Flooring –
Terms & Conditions of Trade

  1. Definitions
    1.1 “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.
    1.2 “Seller” means Malnic Enterprises Ltd T/A A – Z Flooring, its
    successors and assigns or any person acting on behalf of
    and with the authority of Malnic Enterprises Ltd T/A A – Z
    1.3 “Client” means the person/s, entities or any person acting
    on behalf of and with the authority of the Client requesting
    the Seller to provide the Services as specified in any
    proposal, quotation, order, invoice or other documentation,
    (a)if there is more than one Client, is a reference to each
    Client jointly and severally; and
    (b)if the Client is a partnership, it shall bind each partner
    jointly and severally; and
    (c) if the Client is a part of a Trust, shall be bound in their
    capacity as a trustee; and
    (d)includes the Client’s executors, administrators,
    successors and permitted assigns.
    1.4 “Goods” means all Goods or Services supplied by the Seller
    to the Client at the Client’s request from time to time (where
    the context so permits the terms ‘Goods’ or ‘Services’ shall
    be interchangeable for the other).
    1.5 “Site” means the address nominated by the Client at which
    the Services are to be undertaken by the Seller.
    1.6 “Confidential Information” means information of a
    confidential nature whether oral, written or in electronic
    form including, but not limited to, this Contract, either
    party’s intellectual property, operational information, knowhow, trade secrets, financial and commercial affairs,
    contracts, client information (including but not limited to,
    “Personal Information” such as: name, address, D.O.B,
    occupation, driver’s license details, electronic contact
    (email, Facebook or Twitter details), medical insurance
    details or next of kin and other contact information (where
    applicable), previous credit applications, credit history) and
    pricing details.
    1.7 “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 the Seller’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
    1.8 “Price” means the Price payable (plus any Goods and
    Services Tax (“GST”) where applicable) for the Goods as
    agreed between the Seller and the Client in accordance with
    clause 6 below.
  2. Acceptance
    2.1 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 the Goods.
    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 Client acknowledges that the supply of Goods on credit
    shall not take effect until the Client has completed a credit
    application with the Seller and it has been approved with a
    credit limit established for the account.
    2.5 In the event that the supply of Goods request exceeds the
    Client’s credit limit and/or the account exceeds the payment
    terms, the Seller reserves the right to refuse Delivery.
    2.6 Where the Seller gives any advice, recommendation,
    information, assistance or service provided by the Seller in
    relation to Goods or Services supplied is given in good faith
    to the Client, or the Client’s agent and is based on the
    Seller’s own knowledge and experience and shall be
    accepted without liability on the part of the Seller. Where
    such advice or recommendations are not acted upon then
    the Seller shall require the Client or their agent to authorise
    commencement of the Services in writing. The Seller shall
    not be liable in any way whatsoever for any damages or
    losses that occur after any subsequent commencement of
    the Services.
    2.7 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.
  3. Errors and Omissions
    3.1 The Client acknowledges and accepts that the Seller 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 Seller
    in the formation and/or administration of this Contract;
    (b) contained in/omitted from any literature (hard copy
    and/or electronic) supplied by the Seller in respect of the
    3.2 In the event 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 Seller; the Client
    shall not be entitled to treat this Contract as repudiated nor
    render it invalid.
  4. Authorised Representatives
    4.1 Unless otherwise limited as per clause 4.2 the Client agrees
    that should the Client introduce any third party to the Seller
    as the Client’s duly authorised representative, that once
    introduced that person shall have the full authority of the
    Client to order any Goods or Services on the Client’s behalf
    and/or to request any variation to the Services on the
    Client’s behalf (such authority to continue until all requested
    Services have been completed or the Client otherwise
    notifies the Seller in writing that said person is no longer the
    Client’s duly authorised representative).
    4.2 In the event that the Client’s duly authorised representative
    as per clause 4.1 is to have only limited authority to act on
    the Client’s behalf then the Client must specifically and
    clearly advise the Seller in writing of the parameters of the
    limited authority granted to their representative.
    4.3 The Client specifically acknowledges and accepts that they
    will be solely liable to the Seller for all additional costs
    incurred by the Seller (including the Seller’s profit margin) in
    providing any Goods, Services or variation/s requested by
    the Client’s duly authorised representative (subject always
    to the limitations imposed under clause 4.2 (if any)).
  5. Change in Control
    5.1 The Client shall give the Seller not less than fourteen (14)
    days prior written notice of any proposed change of
    ownership of the Client and/or any other change in the
    Client’s details (including but not limited to, changes in the
    Client’s name, address and contact phone or fax number/s,
    change of trustees or business practice). The Client shall be
    liable for any loss incurred by the Seller as a result of the
    Client’s failure to comply with this clause.
  6. Price and Payment
    6.1 At the Seller’s sole discretion the Price shall be either:
    (a) as indicated on any invoice provided by the Seller to the
    Client; or
    (b)the Seller’s quoted price (subject to clause 6.2) which will
    be valid for the period stated in the quotation or
    otherwise for a period of thirty (30) days.
    6.2 The Seller reserves the right to change the Price:
    (a)if a variation to the Goods which are to be supplied is
    requested; or
    (b)if a variation to the Services originally scheduled
    (including any applicable plans or specifications) is
    requested; or
    (c) where additional Services are required due to the
    discovery of hidden or unidentifiable difficulties
    (including, but not limited to, poor weather conditions,
    limitations to accessing the Site, availability of
    machinery, safety considerations, prerequisite work by
    any third party not being completed, obscured building
    defects, uneven floor levels, change of design etc) which
    are only discovered on commencement of the Services;
    (d)in the event of increases to the Seller in the cost of
    labour or materials which are beyond the Seller’s control.
    6.3 Variations will be charged for on the basis of the Seller’s
    quotation, and will be detailed in writing, and shown as
    variations on the Seller’s invoice. The Client shall be
    required to respond to any variation submitted by the Seller
    within ten (10) working days. Failure to do so will entitle the
    Seller to add the cost of the variation to the Price. Payment
    for all variations must be made in full at the time of their
    6.4 At the Seller’s sole discretion a deposit may be required.
    6.5 Time for payment for the Goods being of the essence, the
    Price will be payable by the Client on the date/s determined
    by the Seller, which may be:
    (a) on Delivery of the Goods;
    (b) before Delivery of the Goods;
    (c) by way of instalments/progress payments in accordance
    with the Seller’s payment schedule;
    (d)for certain approved Clients, due twenty (20) days
    following the end of the month in which a statement is
    posted to the Client’s address or address for notices;
    (e)the date specified on any invoice or other form as being
    the date for payment; or
    (f) failing any notice to the contrary, the date which is seven
    (7) days following the date of any invoice given to the
    Client by the Seller.
    6.6 Payment may be made by electronic/on-line banking, credit
    card (a surcharge per transaction may apply), or by any
    other method as agreed to between the Client and the
    6.7 The Seller may in its discretion allocate any payment
    received from the Client towards any invoice that the Seller
    determines and may do so at the time of receipt or at any
    time afterwards. On any default by the Client the Seller may
    re-allocate any payments previously received and allocated.
    In the absence of any payment allocation by the Seller,
    payment will be deemed to be allocated in such manner as
    preserves the maximum value of the Seller’s Purchase
    Money Security Interest (as defined in the PPSA) in the
    6.8 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 the Seller nor to withhold payment of any invoice
    because part of that invoice is in dispute, unless the request
    for payment by the Seller is a claim made under the
    Construction Contracts Act 2002.
    6.9 Unless otherwise stated the Price does not include GST. In
    addition to the Price, the Client must pay to the Seller an
    amount equal to any GST the Seller must pay for any supply
    by the Seller under this or any other contract for the sale of
    the Goods. The Client must pay GST, without deduction or
    set off of any other amounts, at the same time and on the
    same basis as the Client pays the Price. In addition, the
    Client 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.
  7. Provision of the Services
    7.1 The Services commencement date will be put back and/or
    the completion date extended by whatever time is
    reasonable in the event that the Seller claims an extension
    of time (by giving the Client written notice) where
    completion is delayed by an event beyond the Seller’s
    control, including but not limited to any failure by the Client
    (a) make a selection; or
    (b) have the Site ready for the Services; or
    (c) notify the Seller that the Site is ready.
    7.2 Delivery (“Delivery”) of the Goods is taken to occur at the
    time that:
    (a)the Client or the Client’s nominated carrier takes
    possession of the Goods at the Seller’s address; or
    (b)the Seller (or the Seller’s nominated carrier) delivers the
    Goods to the Client’s nominated address even if the
    Client is not present at the address.
    7.3 At the Seller’s sole discretion the cost of Delivery is in
    addition to the Price.
    7.4 The Seller may deliver the Goods in separate instalments.
    Each separate instalment shall be invoiced and paid in
    accordance with the provisions in these terms and
    7.5 Any time specified by the Seller for Delivery of the Goods is
    an estimate only and the Seller 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 Goods to be delivered at the
    time and place as was arranged between both parties. In the
    event that the Seller is unable to supply the Goods as
    agreed solely due to any action or inaction of the Client,
    then the Seller shall be entitled to charge a reasonable fee
    for redelivery and/or storage.
  8. Risk
    8.1 Risk of damage to or loss of the Goods passes to the Client
    on Delivery and the Client must insure the Goods on or
    before Delivery.
    8.2 If any of the Goods are damaged or destroyed following
    Delivery but prior to ownership passing to the Client, the
    Seller is entitled to receive all insurance proceeds payable
    for the Goods. The production of these terms and conditions
    by the Seller is sufficient evidence of the Seller’s rights to
    receive the insurance proceeds without the need for any
    person dealing with the Seller to make further enquiries.
    8.3 If the Client requests the Seller to leave Goods outside the
    Seller’s premises for collection or to deliver the Goods to an
    unattended location then such Goods shall be left at the
    Client’s sole risk.
    8.4 Where the Seller is to both supply and install Goods then the
    Seller shall maintain a contract works insurance policy until
    the Services are completed. Upon completion of the
    Services all risk for the Services shall immediately pass to
    the Client.
    8.5 The Seller 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 in the
    event that any of this information provided by the Client is
    inaccurate, the Seller accepts no responsibility for any loss,
    damages, or costs however resulting from these inaccurate
    plans, specifications or other information.
    8.6 Where the Seller is required to install the Goods the Client
    warrants that the structure of the premises or equipment in
    or upon which these Goods are to be installed or erected is
    sound and will sustain the installation and work incidental
    thereto and the Seller shall not be liable for any claims,
    demands, losses, damages, costs and expenses howsoever
    caused or arising in connection with the installation and
    work incidental thereto.
    8.7 The Client agrees to indemnify the Seller against any claims
    howsoever arising from the provisions in clause 8.6.
    8.8 The Client acknowledges and accepts that:
    (a)Goods supplied may exhibit variations in shade tone,
    colour, texture, surface and finish, and may fade or
    change colour over time. The Seller will make every
    effort to match batches of product supplied in order to
    minimise such variations but shall not be liable in any
    way whatsoever where such variations occur; and
    (b) doors may require a height adjustment following the
    installation of new flooring. Any such adjustment shall be
    at the Client’s own cost.
    Carpet Risk
    8.9 The Client acknowledges and accepts that:
    (a) whilst carpet manufacturers make every effort to match
    dye lots, colours or shade may vary between batches of
    product and/or between sales samples and actual
    product supplied;
    (b) carpet manufacturers cannot guarantee to produce
    perfectly uniform patterned product, therefore there is no
    guarantee that patterned product will match perfectly
    when installed; and
    (c) the installation process for carpet may require seams
    and cross-joins and that the appearance of these may be
    affected by light source and in particular the construction
    of the chosen product.
    Timber Risk
    8.10 Timber is a:
    (a) hydroscopic material subject to expansion and
    contraction, therefore the Seller will accept no
    responsibility for gaps that may appear in the flooring
    during prolonged dry periods; and
    (b) natural product and as such colour, shade tone,
    markings, and veining may vary from samples provided.
    8.11 Whilst the Seller will make every effort to match sales
    samples to the finished Goods the Seller accepts no liability
    whatsoever where the samples differ to the finished Goods.
    8.12 The Seller will:
    (a) only inspect or view a timber floor from a standing
    position, as this is generally how you will be living on it.
    Minor marks or slight imperfections in the floor finish that
    can only be viewed from a crouching or kneeling position
    will not be considered defects; and
    (b) not accept responsibility for any damage to the floor due
    to microenvironments caused by air-conditioning,
    heating or large expanses of glass windows without
    curtains or blinds.
    8.13 Whilst the Seller will take all due care to avoid
    contamination of the finished surface, the Seller accepts no
    responsibility for contamination by natural contaminates
    such as dust or hair which may be present at the Site.
    Vinyl Risk
    8.14 The Client acknowledges and agrees that the Seller shall not
    be liable for any loss, damages or costs however arising in
    the event that:
    (a) a heavy or sharp object is dropped or falls on the vinyl,
    as vinyl will show scratches and will get cut as it is a soft
    and flexible Good; or
    (b) an object is dragged across it as vinyl can rip and tear; or
    (c) the vinyl discolours or bubbles in areas due to exposure
    to extreme heat (including, but not limited to,
    conservatories and floor to ceiling windows).
    8.15 The Seller does not recommend vinyl to be installed over a
    floor that is a combination of wood and concrete, or
    expansion joints in concrete floors, as any movement, joint,
    seams in bison board, or thin line board will show through
    the vinyl.
    8.16 The Client further acknowledges and agrees that:
    Please note that a larger print version of these terms and conditions is available from the Seller on request. #26647 ©
    Copyright – EC Credit Control 1999 – 2019
    Malnic Enterprises Ltd T/A A – Z Flooring – Terms & Conditions of Trade
    (a) vinyl will not fully seal a floor around the edges
    particularly around showers or baths; the Client also
    agrees water can get underneath and therefore bubble
    and/or discolour the vinyl. The Seller shall not be held
    liable for any loss, damages or costs however arising due
    to the same; and
    (b) whilst floor levelling compound and floor preparation
    may help smooth out rough floors; this will not
    necessarily level a floor.
    8.17 The Seller shall advise the Client if the Seller believes that
    there are any issues with the sub floor (including, but not
    limited to, moisture problems which may cause the vinyl to
    bubble and discolour) however the Client acknowledges that
    it is not always possible to identify such problems therefore
    the Client agrees that the Seller shall not be held liable in
    any way whatsoever should any such issue go undetected
    causing damage to the Goods.
  9. Client’s Responsibilities
    9.1 It is the Client’s responsibility to;
    (a) have all areas clean and clear to enable scheduled work
    to be completed in accordance with the schedule of
    installation (including, but not limited to, removing all
    appliances from the vicinity of the Services);
    (b)remove all existing floor coverings, tacks and staples;
    (c) ensure the sub-floor is adequately ventilated and is
    structurally sound;
    (d) ensure that the levels of the floor are satisfactory as the
    floor coverings can only follow the contours of the floor
    and will not correct unevenness;
    (e) unless quoted for, provide adequate dustsheets to
    protect the Client’s furniture and décor;
    (f) remove all fragile items such as glassware, crockery, pot
    plants, furniture and ornaments. Breakages and
    damages are the responsibility of the Client. All care
    taken but no responsibility accepted by the Seller in this
    (g) supply power to within 8 metres of the project; and
    (h) make the premises available on the agreed date and
    time. If installation is interrupted by the failure of the
    Client to adhere to the installation schedule agreed to
    between the Seller and the Client, any additional costs
    will be invoiced to the Client as an extra.
    9.2 The Seller is not insured to remove furniture or fittings and
    will not do so, nor is the Seller licensed to move gas or
    electrical appliances. In the event that the Seller is
    requested to move furniture then this shall be at the Client’s
    risk and the Seller shall not accept liability for any damage
    9.3 The Seller may at its discretion notify the Client that it
    requires to store at the Site equipment, plant and tools
    required for the Services, in which event the Client shall
    supply the Seller a safe area for storage and shall take all
    reasonable efforts to protect all items so stored from
    possible destruction, theft or damage. In the event that any
    such items are destroyed, stolen or damaged then the cost
    of repair or replacement shall be the Client’s responsibility.
  10. Access
    10.1 The Client shall ensure that the Seller has clear and free
    access to the Site at all times to enable them to undertake
    the Services. The Seller shall not be liable for any loss or
    damage to the Site (including, without limitation, damage to
    pathways, driveways and concreted or paved or grassed
    areas) unless due to the negligence of the Seller.
  11. Compliance with Laws
    11.1 The Client and the Seller shall comply with the provisions of
    all statutes, regulations and bylaws of government, local
    and other public authorities that may be applicable to the
    11.2 The Client shall obtain (at the expense of the Client) all
    licenses and approvals that may be required for the
    11.3 The Client agrees that the site will comply with any
    WorkSafe guidelines relating to building/construction sites
    and any other relevant safety standards or legislation.
  12. Title
    12.1 The Seller and the Client agree that ownership of the Goods
    shall not pass until:
    (a)the Client has paid the Seller all amounts owing to the
    Seller; and
    (b)the Client has met all of its other obligations to the
    12.2 Receipt by the Seller 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.
    12.3 It is further agreed that until ownership of the Goods passes
    to the Client in accordance with clause 12.1:
    (a)the Client is only a bailee of the Goods and must return
    the Goods to the Seller on request;
    (b)the Client holds the benefit of the Client’s insurance of
    the Goods on trust for the Seller and must pay to the
    Seller the proceeds of any insurance in the event of the
    Goods being lost, damaged or destroyed;
    (c) the Client must not sell, dispose, or otherwise part with
    possession of the Goods other than in the ordinary
    course of business and for market value. If the Client
    sells, disposes or parts with possession of the Goods then
    the Client must hold the proceeds of any such act on
    trust for the Seller and must pay or deliver the proceeds
    to the Seller on demand;
    (d)the Client should not convert or process the Goods or
    intermix them with other goods but if the Client does so
    then the Client holds the resulting product on trust for
    the benefit of the Seller and must sell, dispose of or
    return the resulting product to the Seller as it so directs;
    (e)the Client irrevocably authorises the Seller to enter any
    premises where the Seller believes the Goods are kept
    and recover possession of the Goods;
    (f) the Seller may recover possession of any Goods in transit
    whether or not Delivery has occurred;
    (g)the Client shall not charge or grant an encumbrance over
    the Goods nor grant nor otherwise give away any interest
    in the Goods while they remain the property of the Seller;
    (h)the Seller may commence proceedings to recover the
    Price of the Goods sold notwithstanding that ownership
    of the Goods has not passed to the Client.
  13. Personal Property Securities Act 1999 (“PPSA”)
    13.1 Upon assenting to these terms and conditions in writing the
    Client acknowledges and agrees that:
    (a)these terms and conditions constitute a security
    agreement for the purposes of the PPSA; and
    (b) a security interest is taken in all Goods and/or collateral
    (account) – being a monetary obligation of the Client to
    the Seller for Services – that have previously been
    supplied and that will be supplied in the future by the
    Seller to the Client.
    13.2 The Client 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 Seller 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 Seller for all
    expenses incurred in registering a financing statement or
    financing change statement on the Personal Property
    Securities Register or releasing any Goods charged
    (c) not register, or permit to be registered, a financing
    statement or a financing change statement in relation to
    the Goods and/or collateral (account) in favour of a third
    party without the prior written consent of the Seller; and
    (d)immediately advise the Seller of any material change in
    its business practices of selling the Goods which would
    result in a change in the nature of proceeds derived from
    such sales.
    13.3 The Seller and the Client agree that nothing in sections
    114(1)(a), 133 and 134 of the PPSA shall apply to these
    terms and conditions.
    13.4 The Client waives its rights as a debtor under sections 116,
    120(2), 121, 125, 126, 127, 129, and 131 of the PPSA.
    13.5 Unless otherwise agreed to in writing by the Seller, the
    Client waives its right to receive a verification statement in
    accordance with section 148 of the PPSA.
    13.6 The Client shall unconditionally ratify any actions taken by
    the Seller under clauses 13.1 to 13.5.
    13.7 Subject to any express provisions to the contrary (including
    those contained in this clause 13), nothing in these terms
    and conditions is intended to have the effect of contracting
    out of any of the provisions of the PPSA.
  14. Security and Charge
    14.1 In consideration of the Seller agreeing to supply the Goods,
    the Client 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 Client either now or in the
    future, to secure the performance by the Client of its
    obligations under these terms and conditions (including, but
    not limited to, the payment of any money).
    14.2 The Client indemnifies the Seller from and against all the
    Seller’s costs and disbursements including legal costs on a
    solicitor and own client basis incurred in exercising the
    Seller’s rights under this clause.
    14.3 The Client irrevocably appoints the Seller and each director
    of the Seller as the Client’s true and lawful attorney/s to
    perform all necessary acts to give effect to the provisions of
    this clause 14 including, but not limited to, signing any
    document on the Client’s behalf.
  15. Defects
    15.1 The Client shall inspect the Goods on Delivery and shall
    within seven (7) days of Delivery (time being of the essence)
    notify the Seller of any alleged defect, shortage in quantity,
    damage or failure to comply with the description or quote.
    The Client shall afford the Seller an opportunity to inspect
    the Goods within a reasonable time following Delivery if the
    Client believes the Goods are defective in any way. If the
    Client shall fail to comply with these provisions the Goods
    shall be presumed to be free from any defect or damage.
    For defective Goods, which the Seller has agreed in writing
    that the Client is entitled to reject, the Seller’s liability is
    limited to either (at the Seller’s discretion) replacing the
    Goods or repairing the Goods.
    15.2 Goods will not be accepted for return other than in
    accordance with 15.1 above, and provided that:
    (a)the Seller has agreed in writing to accept the return of
    the Goods; and
    (b)the Goods are returned at the Client’s cost within seven
    (7) days of the Delivery date; and
    (c) the Seller will not be liable for Goods which have not
    been stored or used in a proper manner; and
    (d)the Goods are returned in the condition in which they
    were delivered and with all packaging material,
    brochures and instruction material in as new condition as
    is reasonably possible in the circumstances.
    15.3 Subject to clause 15.1, non-stocklist items or Goods made to
    the Client’s specifications are not acceptable for credit or
  16. Warranty
    16.1 Subject to the conditions of warranty set out in clause 16.2
    the Seller warrants that if any defect in any workmanship of
    the Seller becomes apparent and is reported to the Seller
    within twelve (12) months of the date of installation (time
    being of the essence) then the Seller will either (at the
    Seller’s sole discretion) replace or remedy the workmanship.
    16.2 The conditions applicable to the warranty given by clause
    16.1 are:
    (a)the warranty shall not cover any defect or damage which
    may be caused or partly caused by or arise through:
    (i) failure on the part of the Client to properly maintain
    any Goods; or
    (ii) failure on the part of the Client to follow any
    instructions or guidelines provided by the Seller; or
    (iii) any use of any Goods otherwise than for any
    application specified on a quote or order form; or
    (iv) the continued use of any Goods after any defect
    becomes apparent or would have become apparent to
    a reasonably prudent operator or user; or
    (v) fair wear and tear, any accident or act of God.
    (b)the warranty shall cease and the Seller shall thereafter in
    no circumstances be liable under the terms of the
    warranty if the workmanship is repaired, altered or
    overhauled without the Seller’s consent.
    (c) in respect of all claims the Seller shall not be liable to
    compensate the Client for any delay in either replacing or
    remedying the workmanship or in properly assessing the
    Client’s claim.
    16.3 In the case of second hand Goods, the Client acknowledges
    that full opportunity to inspect the same has been provided
    and accepts the same with all faults and that no warranty is
    given by the Seller as to the quality or suitability for any
    purpose and any implied warranty, statutory or otherwise, is
    expressly excluded. The Seller shall not be responsible for
    any loss or damage to the Goods, or caused by the Goods,
    or any part thereof however arising.
  17. Consumer Guarantees Act 1993
    17.1 If the Client is acquiring Goods for the purposes of a trade or
    business, the Client acknowledges that the provisions of the
    Consumer Guarantees Act 1993 do not apply to the supply
    of Goods by the Seller to the Client.
  18. Intellectual Property
    18.1 Where the Seller has designed, drawn or developed Goods
    for the Client, then the copyright in any designs and
    drawings and documents shall remain the property of the
    Seller. Under no circumstances may such designs, drawings
    and documents be used without the express written
    approval of the Seller.
    18.2 The Client warrants that all designs, specifications or
    instructions given to the Seller will not cause the Seller to
    infringe any patent, registered design or trademark in the
    execution of the Client’s order and the Client agrees to
    indemnify the Seller against any action taken by a third
    party against the Seller in respect of any such infringement.
    18.3 The Client agrees that the Seller may (at no cost) use for the
    purposes of marketing or entry into any competition, any
    documents, photographs, designs, drawings or Goods which
    the Seller has created for the Client.
  19. Default and Consequences of Default
    19.1 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 Seller’s sole discretion such interest shall
    compound monthly at such a rate) after as well as before
    any judgment.
    19.2 If the Client owes the Seller any money the Client shall
    indemnify the Seller from and against all costs and
    disbursements incurred by the Seller in recovering the debt
    (including but not limited to internal administration fees,
    legal costs on a solicitor and own client basis, the Seller’s
    collection agency costs, and bank dishonour fees).
    19.3 Further to any other rights or remedies the Seller may have
    under this Contract, if a Client has made payment to the
    Seller, 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 the
    Seller under this clause 19 where it can be proven that such
    reversal is found to be illegal, fraudulent or in contravention
    to the Client’s obligations under this Contract.
    19.4 Without prejudice to the Seller’s other remedies at law the
    Seller shall be entitled to cancel all or any part of any order
    of the Client which remains unfulfilled and all amounts
    owing to the Seller shall, whether or not due for payment,
    become immediately payable if:
    (a) any money payable to the Seller becomes overdue, or in
    the Seller’s opinion the Client will be unable to make a
    payment when it falls due;
    (b)the Client has exceeded any applicable credit limit
    provided by the Seller;
    (c) the Client 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 Client or
    any asset of the Client.
  20. Cancellation
    20.1 Without prejudice to any other remedies the Seller may
    have, if at any time the Client is in breach of any obligation
    (including those relating to payment) under these terms and
    conditions the Seller may suspend or terminate the supply
    of Goods to the Client. The Seller will not be liable to the
    Client for any loss or damage the Client suffers because the
    Seller has exercised its rights under this clause.
    20.2 The Seller may cancel any contract to which these terms
    and conditions apply or cancel Delivery of Goods at any time
    before the Goods are delivered by giving written notice to
    the Client. On giving such notice the Seller shall repay to the
    Client any money paid by the Client for the Goods. The
    Seller shall not be liable for any loss or damage whatsoever
    arising from such cancellation.
    20.3 In the event that the Client cancels Delivery of Goods the
    Client shall be liable for any and all loss incurred (whether
    direct or indirect) by the Seller as a direct result of the
    cancellation (including, but not limited to, any loss of
    20.4 Cancellation of orders for Goods made to the Client’s
    specifications, or for non-stocklist items, will definitely not
    be accepted once production has commenced, or an order
    has been placed.
  21. Privacy Policy
    21.1 All emails, documents, images or other recorded information
    held or used by the Seller is Personal Information as defined
    and referred to in clause 21.3 and therefore considered
    confidential. The Seller acknowledges its obligation in
    relation to the handling, use, disclosure and processing of
    Personal Information pursuant to the Privacy Act 1993 (“the
    Act”) including Part II of the OECD Guidelines and as set out
    in Schedule 5A of the Act and any statutory requirements
    where relevant in a European Economic Area “EEA” under
    the EU Data Privacy Laws (including the General Data
    Protection Regulation “GDPR”) (collectively, “EU Data
    Privacy Laws”). The Seller acknowledges that in the event it
    becomes aware of any data breaches and/or disclosure of
    the Client’s Personal Information, held by the Seller that
    may result in serious harm to the Client, the Seller will notify
    the Client in accordance with the Act and/or the GDPR. Any
    release of such personal information must be in accordance
    Please note that a larger print version of these terms and conditions is available from the Seller on request. #26647 ©
    Copyright – EC Credit Control 1999 – 2019
    Malnic Enterprises Ltd T/A A – Z Flooring – Terms & Conditions of Trade
    with the Act and the GDPR (where relevant) and must be
    approved by the Client by written consent, unless subject to
    an operation of law.
    21.2 Notwithstanding clause 21.1, privacy limitations will extend
    to the Seller in respect of Cookies where the Client utilises
    the Seller’s website to make enquiries. The Seller agrees to
    display reference to such Cookies and/or similar tracking
    technologies, such as pixels and web beacons (if
    applicable), such technology allows the collection of
    Personal Information such as the Client’s:
    (a)IP address, browser, email client type and other similar
    (b)tracking website usage and traffic; and
    (c) reports are available to the Seller when the Seller sends
    an email to the Client, so the Seller may collect and
    review that information (“collectively Personal
    If the Client consents to the Seller’s use of Cookies on the
    Seller’s website and later wishes to withdraw that consent,
    the Client may manage and control the Seller’s privacy
    controls via the Client’s web browser, including removing
    Cookies by deleting them from the browser history when
    exiting the site.
    21.3 The Client authorises the Seller or the Seller’s agent to:
    (a) access, collect, retain and use any information about the
    (i) (including, name, address, D.O.B, occupation, driver’s
    license details, electronic contact (email, Facebook or
    Twitter details), medical insurance details or next of
    kin and other contact information (where applicable),
    previous credit applications, credit history or any
    overdue fines balance information held by the Ministry
    of Justice) for the purpose of assessing the Client’s
    creditworthiness; or
    (ii) for the purpose of marketing products and services to
    the Client.
    (b) disclose information about the Client, whether collected
    by the Seller from the Client directly or obtained by the
    Seller from any other source, to any other credit provider
    or any credit reporting agency for the purposes of
    providing or obtaining a credit reference, debt collection
    or notifying a default by the Client.
    21.4 Where the Client is an individual the authorities under
    clause 21.3 are authorities or consents for the purposes of
    the Privacy Act 1993.
    21.5 The Client shall have the right to request the Seller for a
    copy of the Personal Information about the Client retained
    by the Seller and the right to request the Seller to correct
    any incorrect Personal Information about the Client held by
    the Seller.
  22. Suspension of Services
    22.1 Where the Contract is subject to section 24A of the
    Construction Contracts Amendment Act 2015, the Client
    hereby expressly acknowledges that:
    (a)the Seller has the right to suspend work within five (5)
    working days of written notice of its intent to do so if a
    payment claim is served on the Client, and:
    (i) the payment is not paid in full by the due date for
    payment in accordance with clause 6.5 and/or any
    subsequent amendments or new legislation and no
    payment schedule has been given by the Client; or
    (ii) a scheduled amount stated in a payment schedule
    issued by the Client in relation to the payment claim
    is not paid in full by the due date for its payment; or
    (iii) the Client has not complied with an adjudicator’s
    notice that the Client must pay an amount to the
    Seller by a particular date; and
    (iv) the Seller has given written notice to the Client of its
    intention to suspend the carrying out of construction
    work under the construction Contract.
    (b)if the Seller suspends work, it:
    (i) is not in breach of Contract; and
    (ii) is not liable for any loss or damage whatsoever
    suffered, or alleged to be suffered, by the Client or by
    any person claiming through the Client; and
    (iii) is entitled to an extension of time to complete the
    Contract; and
    (iv) keeps its rights under the Contract including the
    right to terminate the Contract; and may at any time
    lift the suspension, even if the amount has not been
    paid or an adjudicator’s determination has not been
    complied with.
    (c) if the Seller exercises the right to suspend work, the
    exercise of that right does not:
    (i) affect any rights that would otherwise have been
    available to the Seller under the Contract and
    Commercial Law Act 2017; or
    (ii) enable the Client to exercise any rights that may
    otherwise have been available to the Client under that
    Act as a direct consequence of the Seller suspending
    work under this provision;
    (d) due to any act or omission by the Client, the Client
    effectively precludes the Seller from continuing the
    Services or performing or complying with the Seller’s
    obligations under this Contract, then without prejudice to
    the Seller’s other rights and remedies, the Seller may
    suspend the Services immediately after serving on the
    Client a written notice specifying the payment default or
    the act, omission or default upon which the suspension of
    the Services is based. All costs and expenses incurred by
    the Seller as a result of such suspension and
    recommencement shall be payable by the Client as if
    they were a variation.
    22.2 If pursuant to any right conferred by this Contract, the Seller
    suspends the Services and the default that led to that
    suspension continues un-remedied subject to clause 20.1 for
    at least ten (10) working days, the Seller shall be entitled to
    terminate the Contract, in accordance with clause 20.
  23. Service of Notices
    23.1 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
    23.2 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
  24. Trusts
    24.1 If the Client at any time upon or subsequent to entering in to
    the Contract is acting in the capacity of trustee of any trust
    (“Trust”) then whether or not the Seller may have notice of
    the Trust, the Client covenants with the Seller as follows:
    (a)the Contract extends to all rights of indemnity which the
    Client now or subsequently may have against the Trust
    and the trust fund;
    (b)the Client has full and complete power and authority
    under the Trust 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 Client against the
    Trust or the trust fund. The Client 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 Client will not without consent in writing of the Seller
    (the Seller will not unreasonably withhold consent),
    cause, permit, or suffer to happen any of the following
    (i) the removal, replacement or retirement of the Client
    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 property.
  25. General
    25.1 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.
    25.2 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 Wellington Courts of New
    25.3 The Seller 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 the Seller of these terms and conditions
    (alternatively the Seller’s liability shall be limited to
    damages which under no circumstances shall exceed the
    Price of the Goods).
    25.4 The Seller may licence and/or assign all or any part of its
    rights and/or obligations under this Contract without the
    Client’s consent.
    25.5 The Client cannot licence or assign without the written
    approval of the Seller.
    25.6 The Seller 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
    Client agrees and understands that they have no authority
    to give any instruction to any of the Seller’s sub-contractors
    without the authority of the Seller.
    25.7 The Client agrees that the Seller may amend their general
    terms and conditions for subsequent future contracts with
    the Client by disclosing such to the Client in writing. These
    changes shall be deemed to take effect from the date on
    which the Client accepts such changes, or otherwise at such
    time as the Client makes a further request for the Seller to
    provide Goods to the Client.
    25.8 Neither party shall be liable for any default due to any act of
    God, war, terrorism, strike, lock-out, industrial action, fire,
    flood, storm or other event beyond the reasonable control of
    either party.
    25.9 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