Aone Kitchens + Interiors — Terms of Trade

1. Definitions:
In these terms of trade (Terms):
(a) Business Day means a day that is not a Saturday, Sunday or a public holiday in Tauranga, New Zealand.
(b) CGA has the meaning set out in clause 15.
(c) Products means the products you purchase from us.
(d) Services means the services provided to you by us, including installation services and maintenance services.
(e) Site means the site at which Products are delivered and/or Services performed.
(f) Warranty Period means, in respect of particular Products or Services, the period set out in the quote and if not so specified or if no quote applies, for 10 years from the delivery of the relevant Products or the completion of the relevant Services, as applicable.
(g) we, us, our means CENK Limited, trading as Aone Kitchens + Interiors.
(h) you, your means the customer and, where this is more than one person/party, each such person/party jointly and severally.

2. Application of Terms:
You accept these Terms by placing an order with us. These Terms prevail over any other terms and conditions (including terms on any purchase order submitted by you), except specific terms agreed in a quote, which shall prevail over these Terms to the extent of any inconsistency or conflict.

3. Pricing:
The prices for our Products and Services are as set out in our quote or, if no valid quote applies, our current prices and rates at the time (which may be amended by us at any time without notice) on a “plus GST” basis.

4. Timing & Delivery:
Delivery will be scheduled to meet various project timeframes with due consideration for public holidays and manufacturing schedules. Standard delivery shall take approximately four (4) to six (6) weeks from final confirmation of a joinery plan, subject to Site confirmation and the materials selected. The timeframes we give you for delivery and/or installing the Products or providing Services are estimates only and are not guaranteed, and unless we are liable for a delay under the terms of the CGA (if the CGA applies), we will not be liable for any claims arising as a result of any delays. We will use reasonable endeavours to meet estimated timeframes and, if there are any delays (e.g. shipping or importation delays), keep you updated.

5. Quotes & Orders:
All quotes given by us:
(a) are not an offer by us. A contract on these Terms is only concluded pursuant to a quote if you submit an order for Products and/or Services before the quote expires and we accept that order by confirmation in writing (which may be by e-mail);
(b) are based on the cost of labour, materials, freight and other inputs as at the date of the quote, and may be updated at any time by notice in writing by us;
(c) are valid for 60 Business Days (unless such quote includes any stainless steel and/or metal items in which case shall be valid for 30 Business Days) after the date of the quote (or longer period if specified in the quote) and become null and void if a new order is received after the quote expires and is accepted by us, in which case the specific terms shall form part of your contract with us and prevail over these Terms to the extent of any inconsistency or conflict;
(d) may include any agreed specific items, and if an order is received before the quote expires and is accepted by us then those specific terms shall form part of your contract with us and prevail over these Terms to the extent of any inconsistency or conflict.

The cost of our products is subject to fluctuations. If the cost to us of materials or Products ordered by you increases after an order has been accepted, we reserve the right to charge you (and you will pay) the difference in the cost of materials or Products. We will use reasonable endeavours to notify you as soon as we become aware of any such cost increases. We will not apply any further margin in respect of those increased costs.

6. Exclusions:
Unless expressly agreed otherwise (including terms agreed in a quote), the Products and/or Services we provide shall not include any appliances, plumbing, electrical, ducting, flooring, tiling, painting, decorating or other construction work.

7. Concept Plan:
All initial concept plans and pricing is provided free of charge; however, any amendments may incur a fee of $200.00 (plus GST) per plan set (Plan Set Fee). The Plan Set Fee shall only be payable by you where the purchase of the Products and/or Services does not proceed. The Plan Set Fee is solely at our discretion.

8. Variations:
Once an order has been accepted by us that order may not be cancelled or varied by you without our prior written approval. We may impose additional terms as a condition of approving any cancellation or variation requested by you. Where any variation is made after the site measure has been completed, a $300.00 (plus GST) fee will be incurred per round of changes. Any variation may impact any scheduled installation date which will need to be rescheduled to fit our manufacturing timeframes. Any delay or suspension is requested by you for any reason, we are entitled to charge for our downtime and travel time at our usual rates, as well as any other reasonable additional costs incurred by us as a result of your request.

9. Cancellation:
For any cancellation by you, we reserve the right to charge, and you agree to pay:
(a) the actual costs incurred directly by us, including in connection with procuring the Products and/or Services for the order (plus a reasonable margin) up to the cancellation date (after accounting for monies received from any redeployment of Products procured for you to other customers); and
(b) an equitable proportion of the total fees that would have been payable had all Products and/or Services been performed, as determined by us having regard to the Products and/or Services provided up to the cancellation date.

10. Toe Kicks:
If a floating floor is selected and we are requested to leave the toe kicks off, a one-off charge of $300.00 (plus GST) will be added to your total price to allow for a second installer to fit the toe kicks.

11. Warranties for Products:
For each Product, we warrant for the relevant Warranty Period that the Product:
(a) complies with our specifications for that Product (if any) as provided or made available to you, including in a quote;
(b) is fit for the specific purpose stated by us (if any); and
(c) is of acceptable quality and is free from defects (excluding cosmetic differences due to the nature of raw materials and/or manufacturing processes e.g. batch processing) subject always to fair wear and tear.

12. Warranties for Services:
We warrant that our Services will be performed with reasonable care, skill and diligence in accordance with the workmanship expected of experienced contractors, and in performing Services we will comply with all applicable laws. The warranty period for the quality of the workmanship on installation Services is the Warranty Period commencing from the date of installation.

13. Qualifications to all warranties:
All warranties are void and of no effect and we will not be liable to you in any way if:
(a) the Products are not installed by us, or by an installer approved by us in accordance with our instructions;
(b) the Products are not used, stored or maintained (as determined by us in our sole discretion) in accordance with use, storage and maintenance policies recommended by us and/or any manufacturer;
(c) the Products have been misused or unreasonably used;
(d) the Products have been repaired by someone other than ourselves or our approved contractors;
(e) the Products have been damaged while in your possession prior to installation;
(f) to the extent that you have not used reasonable efforts to mitigate the effects of the relevant defect or damage.

Where Products are sourced directly from a third party manufacturer and that manufacturer offers warranties above those provided in these Terms, we will use reasonable endeavours to pass through the benefit of those warranties to you but will not be liable to you in any respect for those warranties except to the extent required by law.

14. No other warranties:
To the maximum extent permitted by law, all warranties implied by customary practice, statute or at law are excluded and you agree that in accepting these Terms, you have relied entirely on your own enquiries, knowledge, skill and judgment.

15. Consumer Guarantees Act:
If you are a consumer as defined in the Consumer Guarantees Act 1993 (CGA), nothing in these Terms shall limit or exclude any mandatory rights or remedies you have under the CGA. Where the Products or Services are provided for your business purposes, you agree the CGA shall not apply.

16. Clear & Safe Site:
You must ensure that, before we deliver Products to you or commence any Services, including installation:
(a) the Site is cleared and ready for the delivery of Products and the installation of the Products (including completion of any preparatory building work);
(b) the Site is suitable for us to safely carry out delivery and installation; and
(c) clear and easy access to the Site is available for delivery and other installation work.

You are liable to us for any additional costs, losses or delays incurred by us or our crew as a result of your failure to comply with this clause, including delays in access, delays due to having to prepare the Site or making the Site accessible or ready for installation (calculated at either our quoted or usual hourly rates).

17. Customer obligations and acknowledgements:
You agree that:
(a) you have chosen the Products and/or Services using your own judgement;
(b) we are not legally responsible for any loss or damage you might suffer in relation to your purchasing or use of our Products and/or Services;
(c) we will rely on information provided by you in relation to your order for the Products and/or Services and we reserve the right to charge you, and you will pay, for any additional Products and/or Services provided by us and/or any costs incurred by us in reliance on or as a result of incorrect or inadequate information;
(d) unless specifically agreed otherwise, we will install the Products;
(e) we have not made allowance for any unforeseen physical conditions on Site and any additional Products and/or Services required as a result of identifying unforeseen physical conditions shall be treated as a variation and we are entitled to charge our usual fees in respect of any such variation. We will work with you to agree the terms of the variation and the fees payable for that variation;
(f) you will comply with all of your obligations at law, including health and safety, including ensuring that we are provided with your health and safety policies and procedures and proper induction if you want us to work on the Site;
(g) if we assume primary responsibility for a particular construction area on your property, you will comply with our health and safety policies and procedures and all of our reasonable directions regarding health and safety;
(h) we may immediately suspend the provision of Products and/or Services under these Terms without notice if you do not pay any invoiced amount in full by the due date (and we will lift the suspension when the overdue amount is paid in full if such payment is received within 1 month) or if you fail to comply with these Terms (and we will lift the suspension when we are satisfied that you have remedied your non-compliance with these Terms); and
(i) we are not liable for any loss or damage suffered by you arising from any suspension by us under these Terms, and you will indemnify us for any loss or expense we suffer as a result of any suspension under clause 17(h) above.

18. Deposit & Payment:
(a) Unless otherwise agreed in writing (including in an applicable quote) and subject to paragraphs (c) and (d) of this clause:
    (i) a non-refundable deposit (Deposit) shall become due and payable immediately upon an order being accepted by us. Unless we have agreed otherwise with you in writing (including in a quote) the Deposit shall be 50% of the total estimated amount of your order (including GST). We are under no obligation to action your order until we receive your Deposit;
    (ii) an amount equivalent to 40% of the total estimated amount of your order (including GST) shall be due and payable on the joinery leaving our manufacturing factory; and
    (iii) the remaining amount payable to us (being the total purchase price including GST less the Deposit and the amount paid to us in accordance with subclause (a)(ii) above), shall be payable by you on delivery of the Products to the nominated premises or, if we are also installing the Products for you, immediately following installation of the Products. If we provide any other Services to you, then unless set out in the quote or agreed otherwise full payment is required no later than seven (7) Business Days following the date of the invoice for those Services.
(b) All payments by you shall be made to our below nominated account without any deduction, withholding or set off. Please ensure that you identify your deposit with your name and invoice number.

Bank Account:
CENK Limited: 06-0433-0602613-00

(c) We may require full payment upon accepting an order.
(d) We may revoke any agreed payment terms and require immediate payment if we have any concerns about your ability to pay.
(e) If you are late in payment, we may charge default interest on the overdue amount until it is paid at the rate of 4% per month, calculated daily.
(f) You are liable for any costs we incur (including solicitor/client costs) in enforcing our rights under these Terms.

19. Title and risk:
Risk in the Products shall pass to you upon the later of the date of delivery or installation of the Products by us (as applicable). Title to the Products shall pass to you on the later of the date of delivery, the date of installation by us (if applicable), or the date that all amounts owing to us for the supply and installation of those Products are paid in full. We have a security interest in all Products that are supplied by us until they are paid for in full. Nothing in clauses 114(1)(a), 133 or 134 of the Personal Property Securities Act (PPSA) applies to you. You waive your rights as a debtor under clauses 116, 120(2), 121, 125 to 129, 131 and 132 of the PPSA and your right to a verification statement under section 148 of the PPSA.

20. Limitations of Liability:
To the maximum extent permitted by law, and subject always to clauses 15 (CGA):
(a) our liability for any defect or for any cost, loss, damage, injury or claim arising directly or indirectly in relation to the Products and/or Services supplied by us, whether arising from contract, tort (including negligence) or otherwise shall be limited to (at our option), repairing the affected Products, replacing the affected Products, re-performing the affected Services, or providing you with a refund of the price paid for the affected Products and/or Services;
(b) we are not responsible for any defect in the Products or any other costs, losses, liability or claims that results wholly or partly from the use or storage of the Products, the acts or omissions of any other person, or any other cause beyond our reasonable control;
(c) we are not responsible in any circumstances for any indirect, consequential or special loss, loss of profits or economic loss including loss of business or loss of opportunity;
(d) our liability for all breaches shall be limited to the amount actually recovered under our insurance policy for the event giving rise to the claim or the amount of the purchase price paid by you for the relevant Products and/or Services, whichever is greater;
(e) we are not legally responsible for any loss or damage you or any third party incurs or suffers in relation to your use, purchase or use under these Terms to the extent we are not to blame for these Terms; and
(f) we are not liable for any indirect losses or any such liability arose as a direct result of the acts or omissions of you or your employees, subcontractors or contractors, or as a result of events, matters or circumstances outside of our reasonable control.

21. Force Majeure:
We are not liable to you for any failure or delay in performing our obligations under these Terms if such failure or delay is due to any cause beyond our reasonable control. This includes, but is not limited to, acts of God, fire, flood, storm, earthquake, strikes, lockouts, riots, civil commotion, malicious damage, pandemics, industrial action, government orders, war, terrorism, or breakdown of plant or machinery.

22. Intellectual Property:
All intellectual property rights (including copyright and design rights) in and to our Products, concepts, drawings, renders, plans, and materials remain our sole and exclusive property. You must not use, reproduce, distribute, or share these without our prior written consent. We reserve the right to take photographs and videos of the Products before, during and after installation for our marketing purposes, unless agreed otherwise in writing.

23. Confidentiality and Privacy:
You must keep confidential all information relating to our business, Products, Services, prices, designs, and intellectual property that is not already public knowledge. We will comply with our obligations under the Privacy Act 2020 and our privacy policy, which is available on request.

24. Dispute Resolution:
If any dispute arises between you and us, both parties will first try to resolve the dispute in good faith by negotiation. If the dispute cannot be resolved within 10 Business Days, either party may refer the dispute to mediation by a mediator agreed by both parties or, if no agreement is reached, appointed by the Arbitrators’ and Mediators’ Institute of New Zealand. Neither party may issue court proceedings until mediation has been attempted in good faith, unless urgent relief is sought.

25. General:
(a) These Terms, and any quote accepted by you and confirmed by us in writing, form the entire agreement between you and us and supersede all prior discussions, representations or agreements.
(b) We may update these Terms from time to time by posting an updated version on our website or otherwise providing them to you.
(c) If any part of these Terms is held invalid or unenforceable, the remaining provisions will remain in full force and effect.
(d) Any notice or communication must be in writing and delivered by hand, post, or email to the address most recently notified by the other party.
(e) These Terms are governed by the laws of New Zealand, and both parties submit to the exclusive jurisdiction of the New Zealand courts.