Absolute Height's Terms and Conditions of Trade

Definitions

“Absolute Height” means Absolute Height Limited, its successors and assigns or any person acting on behalf of and with the authority of Absolute Height Limited.
“Client” means the person/s or any person acting on behalf of and with the authority of the Client requesting Absolute Height to provide the Services as specified in any proposal, quotation, order, invoice or other documentation, and:
1. if there is more than one Client, is a reference to each Client jointly and severally; and
2. if the Client is a part of a Trust, shall be bound in their capacity as a trustee; and
3. includes the Client’s executors, administrators, successors and permitted assigns.
“Goods” means all Goods or Services supplied by Absolute Height 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).
“Price” means the Price payable (plus any Goods and Services Tax (“GST”) where applicable) for the Goods as agreed between Absolute Height and the Client in accordance with clause 7 below.

Acceptance
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. These terms and conditions may only be amended with the consent of both parties in writing and shall prevail to the extent of any inconsistency with any other document or contract between the Client and Absolute Height.
3. 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.
4. Where the Client is a tenant (and therefore not the owner of the address where Services are to be provided) then the Client warrants that the Client has obtained the full consent of the owner for Absolute Height to provide the Services at the owner’s address. The Client acknowledges and agrees that they shall:
  1. upon request from Absolute Height provide evidence that they have such consent; and
  2. be personally liable for full payment of the Price for all Services provided under this contract and to indemnify Absolute Height against any claim made by the owner of the address (howsoever arising) in relation to the provision of any Services by Absolute Height, except where such claim has arisen because of the negligence of Absolute Height when providing the Services.
5. The Client acknowledges and accepts that Absolute Height may suspend or cancel the Services upon completion of a safety assessment which deems the site and/or conditions (including, but not limited to current or forecasted weather conditions) too hazardous for the Services to be performed.
6. Where a building has been deemed to be leaky or as having weather tightness issues, the Client is required to notify Absolute Height of such. Where the Services include Absolute Height to apply paint or coating on a building or structure, Absolute Height will never knowingly conceal, hide or otherwise obscure evidence of unrepaired weather tightness, poor workmanship or any other factors that would mislead a potential purchaser, tenant or owner of a building or structure.

Errors and Omissions
1. The Client acknowledges and accepts that Absolute Height shall, without prejudice, accept no liability in respect of any alleged or actual error(s) and/or omission(s):
  1. resulting from an inadvertent mistake made by Absolute Height in the formation and/or administration of this contract; and/or
  2. contained in/omitted from any literature (hard copy and/or electronic) supplied by Absolute Height in respect of the Services.
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 Absolute Height; the Client shall not be entitled to treat this contract as repudiated nor render it invalid.

Change in Control
1. The Client shall give Absolute Height 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, contact phone number/s, change of trustees or business practice). The Client shall be liable for any loss incurred by Absolute Height as a result of the Client’s failure to comply with this clause.

Contract Term
1. Where this contract is for ongoing Services, the contract term shall be for a period specified in Absolute Height’s quotation, and will automatically renew on a monthly basis unless terminated by either party in accordance with clause 23.
2. The Client accepts and acknowledges that all fixed contracts shall be subject to an annual Price review and/or subsequent adjustment to allow for increases to Absolute Height in the cost of labour and materials, which are beyond the control of Absolute Height.

Authorised Representatives
1. Unless otherwise limited as per clause 6.2 the Client agrees that should the Client introduce any third party to Absolute Height 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 Absolute Height in writing that said person is no longer the Client’s duly authorised representative).
2. In the event that the Client’s duly authorised representative as per clause 6.1 is to have only limited authority to act on the Client’s behalf then the Client must specifically and clearly advise Absolute Height in writing of the parameters of the limited authority granted to their representative.
3. The Client specifically acknowledges and accepts that they will be solely liable to Absolute Height for all additional costs incurred by Absolute Height (including Absolute Height’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 6.2 (if any)).

Price and Payment
1. At Absolute Height’s sole discretion the Price shall be either:
  1. as indicated on any invoice provided by Absolute Height to the Client; or
  2. the Price as at the date of delivery of the Goods according to Absolute Height’s current price list; or
  3. Absolute Height’s quoted price (subject to clause 7.2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.
2. Absolute Height reserves the right to change the Price:
  1. if a variation to the Goods which are to be supplied is requested; or
  2. if a variation to the Services originally scheduled (including any applicable plans or specifications) is requested; or
  3. 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, pre-existing damage worse than originally anticipated or advised by the Client, obscured site defects found on closer inspection, prerequisite work by any third party not being complete or inaccurate measurements provided by the Client etc.) which are only discovered on commencement of the Services; or
  4. in the event of increases to Absolute Height in the cost of labour (including the effects of changes to wage rates due to industry awards) or Goods which are beyond Absolute Height’s control.
3. Variations will be charged for on the basis of Absolute Height’s quotation, and will be detailed in writing, and shown as variations on Absolute Height’s invoice. The Client shall be required to respond to any variation submitted by Absolute Height within ten (10) working days. Failure to do so will entitle Absolute Height 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.
4. At Absolute Height’s sole discretion a deposit may be required.
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 Absolute Height, which may be:
  1. before delivery of the Goods/Services;
  2. by way of instalments/progress payments in accordance with Absolute Height’s payment schedule;
  3. 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;
  4. the date specified on any invoice or other form as being the date for payment; or
  5. failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Client by Absolute Height.
6. At the agreement of both parties, payment of the Price may be subject to retention by the Client of an amount (hereafter called the "Retention Money"), being a set amount or equal to a percentage of the Price. The Client shall hold the Retention Money for the agreed period following completion of the Services during which time all Services are to be completed and/or all defects are to be remedied. Any Retention Money applicable to this contract are to be dealt with in accordance with section 18 of the Construction Contracts Act 2002.
7. Payment may be made by cash, cheque, bank cheque, electronic/on-line banking, or by any other method as agreed to between the Client and Absolute Height.
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 Absolute Height nor to withhold payment of any invoice because part of that invoice is in dispute unless the request for payment by Absolute Height is a claim made under the Construction Contracts Act 2002.
9. Unless otherwise stated the Price does not include GST. In addition to the Price, the Client must pay to Absolute Height an amount equal to any GST Absolute Height must pay for any supply by Absolute Height 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.
10. Where the Client requesting or organising Absolute Height to provide the Services is acting on behalf of any third party, and that third party is intended to be responsible for the payment (or part-payment) of the Price:
  1. Absolute Height shall not be responsible for collecting any payment from any third party intended to be a party to this contract; and
  2. in the event that the third party does not pay for the Services when due, the Client acknowledges that they shall be liable for the payment of the Price as if they had contracted the Services on their own behalf.

Delivery
1. Subject to clause 8.2 it is Absolute Height’s responsibility to ensure that the Services start as soon as it is reasonably possible.
2. The Services’ commencement date will be put back and/or the completion date extended by whatever time is reasonable in the event that Absolute Height claims an extension of time (by giving the Client written notice) where completion is delayed by an event beyond Absolute Height’s control, including but not limited to any failure by the Client to:
  1. make a selection; or
  2. have the site ready for the Services; or
  3. notify Absolute Height that the site is ready.
3. Delivery (“Delivery”) of the Goods is taken to occur at the time that Absolute Height (or Absolute Height’s nominated carrier) delivers the Goods to the Client’s nominated address even if the Client is not present at the address.
4. At Absolute Height’s sole discretion, the cost of delivery is addition to the Price.
5. Delivery of the Services to a third party nominated by the Client is deemed to be delivery to the Client for the purposes of this contract.
6. Absolute Height may deliver the Goods in separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.
7. Any time specified by Absolute Height for delivery of the Goods is an estimate only and Absolute Height 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 Absolute Height is unable to supply the Goods as agreed solely due to any action or inaction of the Client, then Absolute Height shall be entitled to charge a reasonable fee for redelivery and/or storage.
8. The Services shall be deemed to be completed when the Services carried out under this contract have been completed in accordance with any plans, instructions and specifications set out and all statutory requirements have been met.
9. In the case of aged, degraded, or poorly/incorrectly applied paint or surface application, the washing process may cause the paint or surface application to flake or come free of the surface. Absolute Height shall not accept any liability for damages caused to surfaces in this situation.

Risk
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.
2. If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Client, Absolute Height is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by Absolute Height is sufficient evidence of Absolute Height’s rights to receive the insurance proceeds without the need for any person dealing with Absolute Height to make further enquiries.
3. If the Client requests Absolute Height to leave Goods outside Absolute Height’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.
4. Where Absolute Height is required to undertake Services the Client warrants that the structure of the premises in or upon which these Services are to be undertaken is sound and will sustain the installation and work incidental thereto and Absolute Height 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.
5. The Client acknowledges that Goods supplied may exhibit variations in shade, colour, texture, surface and finish, and may fade or change colour over time. Absolute Height 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.
6. Absolute Height shall be under no liability for inferior existing paintwork where Absolute Height’s paint has bonded to the existing paintwork and weakened the previous paint causing any kind of flake, crack or blemish.
7. Absolute Height shall not be liable whatsoever for any loss or damage to the Services (including, but not limited to, painted surfaces) that is caused by any other tradesmen.
8. Where the Client has supplied Goods for Absolute Height to complete the Services, the Client acknowledges that they accept responsibility for the suitability of purpose, quality and any faults inherent in the Goods. Absolute Height shall not be responsible for any defects in the Services, any loss or damage to the Goods (or any part thereof), howsoever arising from the use of Goods supplied by the Client.
9. Absolute Height may at its discretion notify the Client that it requires to store at the site Goods, fittings and appliances, or plant and tools required for the Services, in which event the Client shall supply Absolute Height 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. Any advice, recommendation, information, assistance or service provided by Absolute Height in relation to Goods or Services supplied is given in good faith is based on Absolute Height’s own knowledge and experience and shall be accepted without liability on the part of Absolute Height and it shall be the responsibility of the Client to confirm the accuracy and reliability of the same in light of the use to which the Client makes or intends to make of the Goods or Services.
11. The Client acknowledges:
  1. and agrees that where Absolute Height has performed temporary or emergency waterproofing/repairs:
    1. Absolute Height offers no guarantee on the Services, including against the reoccurrence of the initial problem, or any further damage caused; and
    2. Absolute Height will immediately (to their best estimation) advise the Client of the cause of the problem and shall provide the Client with an estimate for the full repair required; and
    3. it shall be the Client’s responsibility to ensure that the problem (only temporarily resolved) is dealt with within thirty-six (36) hours.
  2. that where Absolute Height is contracted to remove existing materials from a structure and discovers weather-tightness/dampness issues that require other tradespeople or insurance assessment, Absolute Height reserves the right to halt the Services, and invoice the Client for Services already completed, until Absolute Height is satisfied that remedial work is completed to a standard suitable for Absolute Height to complete the Services to a reasonable standard;
  3. that where Absolute Height has been requested to repair existing structures and/or materials, evidence of repair will be evident after completion of the Services.
12. The Client acknowledges that variations of colour and texture may be inherent in the Goods. Absolute Height shall not be liable for any loss, damages or costs howsoever arising resulting from any variation of the colour or texture between surfaces, the different areas treated and/or batches supplied.

Access
1. The Client shall ensure that:
  1. Absolute Height has clear and free access to the site at all times to enable them to undertake the Services. Absolute Height shall not be liable for any loss or damage to the site unless due to the negligence of Absolute Height; and
  2. no vehicles or other moveable objects are located underneath the work zone as accidental overspray of paint, cleaning products or other items, or falling items may occur. Absolute Height shall not be held liable for any loss, damages or claims where the Client fails to comply with this condition.

Absolute Height’s Responsibilities
1. Absolute Height’s obligations under this contract shall be limited to the planned and scheduled provisions of the Services as detailed in the quotation unless otherwise altered and agreed between Absolute Height and the Client.
2. Absolute Height will provide suitable qualified personnel to carry out the Services.
3. Absolute Height will supply all the necessary cleaning chemicals and equipment required to carry out the cleaning covered under the contract. The Client shall be responsible for any additional consumables supplied by Absolute Height outside of the contract terms after delivery of the Services unless agreed by the Client and Absolute Height at the time of quotation.
4. Any Services not specified in the quotation will be undertaken at an additional cost to the Client and shall be charged for on the basis of Absolute Height’s hourly rate applicable and shall be invoiced in accordance with clause 7.2.

Client Responsibilities
1. It is the intention of Absolute Height and agreed by the Client that it is the responsibility of the Client to provide and have erected scaffolding to enable the Services to be undertaken (where in Absolute Height’s opinion it is deemed necessary). It is also agreed that all scaffolding erected will comply with industry safety standards and that any person erecting the scaffolding shall be suitably qualified to ensure its safe and proper erection and where necessary shall hold a current certificate of competency and/or be fully licensed.
2. The Client acknowledges that in the event asbestos or any other toxic substances are discovered at the site that it is their responsibility to ensure the safe removal of the same. The Client further agrees to indemnify Absolute Height against any costs incurred by Absolute Height as a consequence of such discovery. Under no circumstances will Absolute Height handle removal of asbestos product.
3. The Client agrees to remove any furniture, furnishings or personal goods from the vicinity of the Services and agrees that Absolute Height shall not be liable for any damage caused to those items through the Client’s failure to comply with this clause.
4. The Client agrees one area per floor will be designated for any rubbish generated by Absolute Height. The Client accepts responsibility for the removal of this rubbish and agrees removal will be made at no cost to Absolute Height.
5. The Client acknowledges and agrees that it is their responsibility to:
  1. provide Absolute Height with an adequate free source of water at all times to enable Absolute Height to provide the Services; and
  2. ensure that the address is reasonably ready for Absolute Height to commence the Services, with minimal tradespersons and works in progress, pets/animals safely contained and the removal of loose standing object from all areas to be serviced (e.g. pot plants, barbecues, vehicles, furniture, ornaments, etc.); and
  3. fulfil any special conditions or requirements that may affect Absolute Height providing the Services at the address (including, but not limited to, health and safety equipment and/or site inductions); and
  4. ensure that all joinery, flashings, exterior cladding and wall to floor surfaces (internal and external) are sealed against water entry; and
  5. ensure that all electronic components (which includes, but is not limited to, wall and ceiling sockets, switches, electronic alarms, sensors and automatic garage door openers, etc.) are isolated against water ingress; and
  6. organise, and meet all costs and expenses associated with, the disconnection and reconnection of any mains power entering any building/s on the address.

Compliance with Laws
1. The Client and Absolute Height 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.
2. The Client agrees that the site will comply with any WorkSafe guidelines and the Health and Safety at Work Act 2015 (the “HSW Act”) relating to building/construction sites, working at heights and any other relevant safety standards or legislation. Furthermore, Absolute Height has not and will not at any time assume any obligation as the Client’s agent or otherwise which may be imposed upon the Client from time to time pursuant to the HSW Act arising out of the engagement. The parties agree that for the purposes of the HSW Act, Absolute Height shall not be the person who controls the place of work in terms of the HSW Act.
3. If the Client fails to comply with this clause and Absolute Height incurs additional costs as a result, such costs shall be charged to the Client in accordance with clause 7.2.
4. All Services are performed in accordance with Australian and New Zealand standards (AS/NZS 1891 and AS/NZS 4488).

Insurance
1. Absolute Height shall have public liability insurance of at least five million dollars ($5m). It is the Client’s responsibility to ensure that they are similarly insured.

Title
1. Absolute Height and the Client agree that ownership of the Goods shall not pass until:
  1. the Client has paid Absolute Height all amounts owing to Absolute Height; and
  2. the Client has met all of its other obligations to Absolute Height.
2. Receipt by Absolute Height 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.
3. It is further agreed that until ownership of the Goods passes to the Client in accordance with clause 15.1:
  1. the Client is only a bailee of the Goods and must return the Goods to Absolute Height on request;
  2. the Client holds the benefit of the Client’s insurance of the Goods on trust for Absolute Height and must pay to Absolute Height the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed;
  3. 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 Absolute Height and must pay or deliver the proceeds to Absolute Height on demand;
  4. 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 Absolute Height and must sell, dispose of or return the resulting product to Absolute Height as it so directs;
  5. the Client irrevocably authorises Absolute Height to enter any premises where Absolute Height believes the Goods are kept and recover possession of the Goods;
  6. Absolute Height may recover possession of any Goods in transit whether or not delivery has occurred;
  7. 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 Absolute Height;
  8. Absolute Height may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Client.

Personal Property Securities Act 1999 (“PPSA”)
1. Upon assenting to these terms and conditions in writing the Client acknowledges and agrees that:
  1. these terms and conditions constitute a security agreement for the purposes of the PPSA; and
  2. a security interest is taken in all Goods and/or collateral (account) – being a monetary obligation of the Client to Absolute Height for Services – that have previously been supplied and that will be supplied in the future by Absolute Height to the Client.
2. The Client undertakes to:
  1. sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which Absolute Height may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register;
  2. indemnify, and upon demand reimburse, Absolute Height 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;
  3. 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 Absolute Height; and
  4. immediately advise Absolute Height 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.
3. Absolute Height and the Client agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms and conditions.
4. The Client waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA.
5. Unless otherwise agreed to in writing by Absolute Height, the Client waives its right to receive a verification statement in accordance with section 148 of the PPSA.
6. The Client shall unconditionally ratify any actions taken by Absolute Height under clauses 16.1 to 16.5.

Security and Charge
1. In consideration of Absolute Height 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).
2. The Client indemnifies Absolute Height from and against all Absolute Height’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising Absolute Height’s rights under this clause.
3. The Client irrevocably appoints Absolute Height and each director of Absolute Height as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 17 including, but not limited to, signing any document on the Client’s behalf.

Defects
1. The Client shall inspect the Goods on delivery and shall within seven (7) days of delivery (time being of the essence) notify Absolute Height of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Client shall afford Absolute Height 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 Absolute Height has agreed in writing that the Client is entitled to reject, Absolute Height’s liability is limited to either (at Absolute Height’s discretion) replacing the Goods or repairing the Goods.
2. Goods will not be accepted for return other than in accordance with 18.1 above, and provided that:
  1. Absolute Height has agreed in writing to accept the return of the Goods; and
  2. the Goods are returned at the Client’s cost within seven (7) days of the delivery date; and
  3. Absolute Height will not be liable for Goods which have not been stored or used in a proper manner; and
  4. 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.
3. Absolute Height will not accept the return of Goods for credit.
4. Absolute Height may (in its discretion) accept the return of Goods for credit but this may incur a handling fee of ten percent (10%) of the value of the returned Goods plus any freight.
5. Subject to clause 18.1, non-stocklist items or Goods made to the Client’s specifications are not acceptable for credit or return.

Warranty
1. Subject to the conditions of warranty set out in clause 19.2 Absolute Height warrants that if any defect in any workmanship of Absolute Height becomes apparent and is reported to Absolute Height within twelve (12) months of the date of delivery (time being of the essence) then Absolute Height will either (at Absolute Height’s sole discretion) replace or remedy the workmanship.
2. The conditions applicable to the warranty given by clause 19.1 are:
  1. the warranty shall not cover any defect or damage which may be caused or partly caused by or arise through:
    1. failure on the part of the Client to properly maintain any Goods; or
    2. failure on the part of the Client to follow any instructions or guidelines provided by Absolute Height; or
    3. any use of any Goods otherwise than for any application specified on a quote or order form; or
    4. the continued use of any Goods after any defect becomes apparent or would have become apparent to a reasonably prudent operator or user; or
    5. fair wear and tear, any accident or act of God.
  2. the warranty shall cease and Absolute Height shall thereafter in no circumstances be liable under the terms of the warranty if the workmanship is repaired, altered or overhauled without Absolute Height’s consent.
  3. in respect of all claims Absolute Height 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.
3. For Goods not manufactured by Absolute Height, the warranty shall be the current warranty provided by the manufacturer of the Goods. Absolute Height shall not be bound by nor be responsible for any term, condition, representation or warranty other than that which is given by the manufacturer of the Goods.
4. To the extent permitted by statute, no warranty is given by Absolute Height as to the quality or suitability of the Goods for any purpose and any implied warranty, is expressly excluded. Absolute Height shall not be responsible for any loss or damage to the Goods, or caused by the Goods, or any part thereof however arising.
5. The conditions applicable to the warranty given on Goods supplied by Absolute Height are contained on the “Warranty Card” that will be supplied with the Goods.
6. 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 Absolute Height as to the quality or suitability for any purpose and any implied warranty, statutory or otherwise, is expressly excluded. Absolute Height shall not be responsible for any loss or damage to the Goods, or caused by the Goods, or any part thereof however arising.

Consumer Guarantees Act 1993
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 Absolute Height to the Client.

Intellectual Property
1. Where Absolute Height has designed, drawn or developed Goods for the Client, then the copyright in any designs and drawings and documents shall remain the property of Absolute Height. Under no circumstances may such designs, drawings and documents be used without the express written approval of Absolute Height.
2. The Client warrants that all designs, specifications or instructions given to Absolute Height will not cause Absolute Height to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify Absolute Height against any action taken by a third party against Absolute Height in respect of any such infringement.
3. The Client agrees that Absolute Height may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings or Goods which Absolute Height has created for the Client.

Default and Consequences of Default
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 Absolute Height’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
2. If the Client owes Absolute Height any money the Client shall indemnify Absolute Height from and against all costs and disbursements incurred by Absolute Height in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, Absolute Height’s collection agency costs, and bank dishonour fees).
3. Further to any other rights or remedies Absolute Height may have under this contract, if a Client has made payment to Absolute Height, 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 Absolute Height under this clause 22 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.
4. Without prejudice to Absolute Height’s other remedies at law Absolute Height shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to Absolute Height shall, whether or not due for payment, become immediately payable if:
  1. any money payable to Absolute Height becomes overdue, or in Absolute Height’s opinion the Client will be unable to make a payment when it falls due;
  2. the Client has exceeded any applicable credit limit provided by Absolute Height;
  3. 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
  4. a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.

Cancellation
1. Without prejudice to any other rights or remedies Absolute Height may have, if at any time the Client is in breach of any obligation (including those relating to payment and/or failure to remedy any breach in respect of this contract within ten (10) working days of receipt by the Client of such notice/s) then Absolute Height may suspend the Services immediately. Absolute Height will not be liable to the Client for any loss or damage the Client suffers because Absolute Height has exercised its rights under this clause.
2. Absolute Height 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 Absolute Height shall repay to the Client any money paid by the Client for the Goods. Absolute Height shall not be liable for any loss or damage whatsoever arising from such cancellation.
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 Absolute Height as a direct result of the cancellation (including, but not limited to, any loss of profits).
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.

Privacy Act 1993
1. The Client authorises Absolute Height or Absolute Height’s agent to:
  1. access, collect, retain and use any information about the Client;
    1. (including any overdue fines balance information held by the Ministry of Justice) for the purpose of assessing the Client’s creditworthiness; or
    2. for the purpose of marketing products and services to the Client.
  2. disclose information about the Client, whether collected by Absolute Height from the Client directly or obtained by Absolute Height 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.
2. Where the Client is an individual the authorities under clause 24.1 are authorities or consents for the purposes of the Privacy Act 1993.
3. The Client shall have the right to request Absolute Height for a copy of the information about the Client retained by Absolute Height and the right to request Absolute Height to correct any incorrect information about the Client held by Absolute Height.

Suspension of Services
1. Where the contract is subject to the Construction Contracts Act 2002, the Client hereby expressly acknowledges that:
  1. Absolute Height 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:
    1. the payment is not paid in full by the due date for payment in accordance with clause 7.5 and/or any subsequent amendments or new legislation and no payment schedule has been given by the Client; or
    2. 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
    3. the Client has not complied with an adjudicator’s notice that the Client must pay an amount to Absolute Height by a particular date; and
    4. Absolute Height has given written notice to the Client of its intention to suspend the carrying out of construction work under the construction contract.
  2. if Absolute Height suspends work, it:
    1. is not in breach of contract; and
    2. 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
    3. is entitled to an extension of time to complete the contract; and
    4. 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.
  3. if Absolute Height exercises the right to suspend work, the exercise of that right does not:
    1. affect any rights that would otherwise have been available to Absolute Height under the Contract and Commercial Law Act 2017; or
    2. enable the Client to exercise any rights that may otherwise have been available to the Client under that Act as a direct consequence of Absolute Height suspending work under this provision;
  4. due to any act or omission by the Client, the Client effectively precludes Absolute Height from continuing the Services or performing or complying with Absolute Height’s obligations under this contract, then without prejudice to Absolute Height’s other rights and remedies, Absolute Height 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 Absolute Height as a result of such suspension and recommencement shall be payable by the Client as if they were a variation.
2. If pursuant to any right conferred by this contract, Absolute Height suspends the Services and the default that led to that suspension continues un-remedied subject to clause 23.1 for at least ten (10) working days, Absolute Height shall be entitled to terminate the contract, in accordance with clause 23.

Service of Notices
1. Any written notice given under this contract shall be deemed to have been given and received:
  1. by handing the notice to the other party, in person;
  2. by leaving it at the address of the other party as stated in this contract;
  3. by sending it by registered post to the address of the other party as stated in this contract;
  4. if sent by email to the other party’s last known email address.
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
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 Absolute Height may have notice of the Trust, the Client covenants with Absolute Height as follows:
  1. the contract extends to all rights of indemnity which the Client now or subsequently may have against the Trust and the trust fund;
  2. 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.
  3. the Client will not without consent in writing of Absolute Height (Absolute Height will not unreasonably withhold consent), cause, permit, or suffer to happen any of the following events;
    1. the removal, replacement or retirement of the Client as trustee of the Trust;
    2. any alteration to or variation of the terms of the Trust;
    3. any advancement or distribution of capital of the Trust; or
    4. any resettlement of the trust property.

General
1. Any dispute or difference arising as to the interpretation of these terms and conditions or as to any matter arising hereunder, shall be submitted to, and settled by, either adjudication in accordance with the Construction Contracts Act 2002 and/or by arbitration in accordance with the Arbitration Act 1996 or its replacement(s).
2. 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.
3. 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 Tauranga Courts in New Zealand.
4. Absolute Height 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 Absolute Height of these terms and conditions (alternatively Absolute Height’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Goods).
5. Absolute Height may licence and/or assign all or any part of its rights and/or obligations under this contract without the Client’s consent.
6. The Client cannot licence or assign without the written approval of Absolute Height.
7. Absolute Height 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 Absolute Height’s sub-contractors without the authority of Absolute Height.
8. The Client agrees that Absolute Height may amend these terms and conditions by notifying 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 Absolute Height to provide Goods to the Client.
9. 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.
10. 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.

Absolute Height's Terms and Conditions of Trade

Definitions

Acceptance

Errors and Omissions

Change in Control

Contract Term

Authorised Representatives

Price and Payment

Delivery

Risk

Access

Absolute Height’s Responsibilities

Client Responsibilities

Compliance with Laws

Insurance

Title

Personal Property Securities Act 1999 (“PPSA”)

Security and Charge

Defects

Warranty

Consumer Guarantees Act 1993

Intellectual Property

Default and Consequences of Default

Cancellation

Privacy Act 1993

Suspension of Services

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Service of Notices

Trusts

General