- “Opendoors” means Opendoors NZ Limited T/A Opendoors, its successors and assigns or any person acting on behalf of and with the authority of Opendoors NZ Limited T/A Opendoors.
- “Client” means the person/s buying the Goods as specified in any invoice, document or order, and if there is more than one Client is a reference to each Client jointly and severally.
- “Goods” means all Goods or Services supplied by Opendoors 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 for the Goods as agreed between Opendoors and the Client in accordance with clause 5
- 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.
- These terms and conditions may only be amended with Opendoors’ consent in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the Client and Opendoors.
- Upon request Opendoors will make samples of specifically manufactured or custom ordered Goods available.
- The Client acknowledges and accepts that the supply of Goods for accepted orders may be subject to availability and if, for any reason, Goods are not or cease to be available, Opendoors reserves the right to vary the Price with alternative Goods as per clause 4.2. Opendoors also reserves the right to halt all Services until such time as Opendoors and the Client agree to such changes.
- The Client agrees and undertakes to properly maintain the Goods and/or follow any instructions or guidelines provided by Opendoors in regard to the proper care of the Goods (including but not limited to, all Painting Guidelines as per clause 2).
Change in Control
- The Client shall give Opendoors 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 or fax number/s, or business practice). The Client shall be liable for any loss incurred by Opendoors as a result of the Client’s failure to comply with this clause.
- Unless otherwise limited as per clause 2 the Client agrees that should the Client introduce any third party to Opendoors 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 Opendoors in writing that said person is no longer the Client’s duly authorised representative).
- In the event that the Client’s duly authorised representative as per clause 1 is to have only limited authority to act on the Client’s behalf then the Client must specifically and clearly advise Opendoors in writing of the parameters of the limited authority granted to their representative.
- The Client specifically acknowledges and accepts that they will be solely liable to Opendoors for all additional costs incurred by Opendoors (including Opendoors’ profit margin) in providing any works, materials, Services or variation/s requested by the Client’s duly authorised representative (subject always to the limitations imposed under clause 2 (if any)).
Price and Payment
- At Opendoors’ sole discretion the Price shall be either:
- as indicated on any invoice provided by Opendoors to the Client; or
- the Price as at the date of delivery of the Goods according to Opendoors’ current price list; or
- Opendoors’ quoted price (subject to clause 2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.
- Opendoors reserves the right to change the Price if a variation to Opendoors’ quotation is requested. Any variation from the plan of scheduled Services or specifications of the Goods (including, but not limited to, any variation as a result of fluctuations in currency exchange rates or increases to Opendoors in the cost of taxes, levies, materials and labour or where additional Services are required due to the discovery of hidden or unidentifiable difficulties including, but not limited to, availability of stock and machinery, change in design and/or specifications or prerequisite work by any third party not being completed etc. which are only discovered on commencement of the Services) will be charged for on the basis of Opendoors’ quotation and will be shown as variations on the invoice.
- At Opendoors’ sole discretion a non-refundable deposit may be required.
- Time for payment for the Goods being of the essence, the Price will be payable by the Client on the date/s determined by Opendoors, which may be:
- on delivery of the Goods;
- 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;
- the date specified on any invoice or other form as being the date for payment; or
- failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Client by Opendoors.
- 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 Opendoors.
- Unless expressly agreed to in writing no allowance has been made in the Price for the deduction of retentions. In the event that retentions are made, Opendoors reserves the right to treat all retentions as placing the Client’s account into default.
- Unless otherwise stated the Price does not include GST. In addition to the Price the Client must pay to Opendoors an amount equal to any GST Opendoors must pay for any supply by Opendoors under this or any other agreement 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.
Delivery of Goods
- Delivery (“Delivery”) of the Goods is taken to occur at the time that:
- the Client or the Client’s nominated carrier takes possession of the Goods at Opendoors’ address; or
- Opendoors (or Opendoors’ nominated carrier) delivers the Goods to the Client’s nominated address even if the Client is not present at the address.
- At Opendoors’ sole discretion the cost of delivery is in addition to the Price.
- The Client must take delivery by receipt or collection of the Goods whenever they are tendered for delivery. In the event that the Client is unable to take delivery of the Goods as arranged then Opendoors shall be entitled to charge a reasonable fee for redelivery and/or storage.
- Opendoors 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.
- The Client shall take delivery of the Goods tendered notwithstanding that the quantity so delivered shall be either greater or lesser than the quantity purchased provided that:
- such discrepancy in quantity shall not exceed five percent (5%); and
- the Price shall be adjusted pro rata to the discrepancy.
- Any time or date given by Opendoors to the Client is an estimate only. The Client must still accept delivery of the Goods even if late and Opendoors will not be liable for any loss or damage incurred by the Client as a result of the delivery being late.
- 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.
- If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Client, Opendoors is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by Opendoors is sufficient evidence of Opendoors’ rights to receive the insurance proceeds without the need for any person dealing with Opendoors to make further enquiries.
- If the Client requests Opendoors to leave Goods outside Opendoors’ premises for collection or to deliver the Goods to an unattended location then such Goods shall be left at the Client’s sole risk.
- Opendoors shall not be held responsible for any damage to the Goods or delays to delivery caused by outside Opendoorss. Where the Client requests Opendoors to repair such damage then Opendoors reserves the right to charge the Client for any costs incurred in rectifying such damage.
- Timber is a natural product and as such may exhibit variations in texture, shade, colour, surface, finish, markings, veining, and contain natural fissures, occlusions, and indentations. Whilst Opendoors will make every effort to match sales samples to the finished Goods Opendoors accepts no liability whatsoever where such samples differ to the finished Goods supplied.
- Timber is a hydroscopic material subject to expansion and contraction, therefore Opendoors will accept no responsibility for gaps that may appear in the flooring during prolonged dry periods.
- The Client acknowledges that Goods supplied may:
- fade or change colour over time; and
- expand, contract or distort as a result of exposure to heat, cold, weather; and
- mark or stain if exposed to certain substances; and
- be damaged or disfigured by impact or scratching.
- The Client accepts and acknowledges that paint application is a specialist field and the painting tradesperson is responsible for the final appearance of the Goods supplied by Opendoors.
- The following specifications have been provided by Paint Manufacturers in consultation with Door Manufacturers and are considered applicable to New Zealand conditions:
- prior to the application of any undercoat or sealing product; all Goods are to be prepared by cleaning any residual contaminates from the skins, attending/filling any imperfections, sanding the full surface and removing any dust;
- the appropriate undercoat or sealer must be used to complement the top coats intended;
- the recommended/specified coverage (m2/L) must be applied;
- the recommended paint thickness (microns of dry film) must be applied;
- correct drying times must be allowed;
- water borne paints may cause a grain raise – this must be sanded;
- a full paint system requires the top and bottoms (and rear style in cavity sliders) to be fully sealed and painted to the same specification as the rest of the door.
Accuracy of Clients Plans and Measurements
- Opendoors 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, Opendoors accepts no responsibility for any loss, damages, or costs however resulting from these inaccurate plans, specifications or other information.
- In the event the Client gives information relating to measurements and quantities of the Goods required to complete the services, it is the Client’s responsibility to verify the accuracy of the measurements and quantities, before the Client or Opendoors places an order based on these measurements and quantities. Opendoors accepts no responsibility for any loss, damages, or costs however resulting from the Client’s failure to comply with this clause.
- Opendoors and the Client agree that ownership of the Goods shall not pass until:
- the Client has paid Opendoors all amounts owing to Opendoors; and
- the Client has met all of its other obligations to Opendoors.
- Receipt by Opendoors 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.
- It is further agreed that:
- until ownership of the Goods passes to the Client in accordance with clause 1 that the Client is only a bailee of the Goods and must return the Goods to Opendoors on request.
- the Client holds the benefit of the Client’s insurance of the Goods on trust for Opendoors and must pay to Opendoors the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed.
- 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 Opendoors and must pay or deliver the proceeds to Opendoors on demand.
- 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 Opendoors and must sell, dispose of or return the resulting product to Opendoors as it so directs.
- the Client irrevocably authorises Opendoors to enter any premises where Opendoors believes the Goods are kept and recover possession of the Goods.
- Opendoors may recover possession of any Goods in transit whether or not delivery has occurred.
- 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 Opendoors.
- Opendoors 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”)
- Upon assenting to these terms and conditions in writing the Client acknowledges and agrees that:
- these terms and conditions constitute a security agreement for the purposes of the PPSA; and
- a security interest is taken in all Goods previously supplied by Opendoors to the Client (if any) and all Goods that will be supplied in the future by Opendoors to the Client.
- The Client undertakes to:
- sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which Opendoors may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register;
- indemnify, and upon demand reimburse, Opendoors 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;
- not register a financing change statement or a change demand without the prior written consent of Opendoors; and
- immediately advise Opendoors 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.
- Opendoors and the Client agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms and conditions.
- The Client waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA.
- Unless otherwise agreed to in writing by Opendoors, the Client waives its right to receive a verification statement in accordance with section 148 of the PPSA.
- The Client shall unconditionally ratify any actions taken by Opendoors under clauses 1 to 12.5.
Security and Charge
- In consideration of Opendoors 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).
- The Client indemnifies Opendoors from and against all Opendoors’ costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising Opendoors’ rights under this clause.
- The Client irrevocably appoints Opendoors and each director of Opendoors as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 13 including, but not limited to, signing any document on the Client’s behalf.
- The Client hereby disclaims any right to rescind, or cancel any contract with Opendoors or to sue for damages or to claim restitution arising out of any inadvertent misrepresentation made to the Client by Opendoors and the Client acknowledges that the Goods are bought relying solely upon the Client’s skill and judgment.
- The Client shall inspect the Goods on delivery and shall within three (3) days of delivery (time being of the essence) notify Opendoors of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Client shall afford Opendoors 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 Opendoors has agreed in writing that the Client is entitled to reject, Opendoors’ liability is limited to either (at Opendoors’ discretion) replacing the Goods or repairing the Goods.
- Returns will only be accepted provided that:
- the Client has complied with the provisions of clause 1; and
- Opendoors has agreed in writing to accept the return of the Goods; and
- the Goods are returned at the Client’s cost within seven (7) days of the delivery date; and
- Opendoors will not be liable for Goods which have not been stored or used in a proper manner; and
- 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.
- Non-stocklist items or Goods made to the Client’s specifications are under no circumstances acceptable for credit or return.
- For Goods not manufactured by Opendoors, the warranty shall be the current warranty provided by the manufacturer of the Goods. Opendoors 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.
Consumer Guarantees Act 1993
- 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 Opendoors to the Client.
- Where Opendoors has designed, drawn or developed Goods for the Client, then the copyright in any designs and drawings and documents shall remain the property of Opendoors.
- The Client warrants that all designs, specifications or instructions given to Opendoors will not cause Opendoors to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify Opendoors against any action taken by a third party against Opendoors in respect of any such infringement.
- The Client agrees that Opendoors may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings or Goods which Opendoors has created for the Client.
Default and Consequences of Default
- 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 Opendoors’ sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
- If the Client owes Opendoors any money the Client shall indemnify Opendoors from and against all costs and disbursements incurred by Opendoors in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, Opendoors’ collection agency costs, and bank dishonour fees).
- Without prejudice to any other remedies Opendoors may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions Opendoors may suspend or terminate the supply of Goods to the Client. Opendoors will not be liable to the Client for any loss or damage the Client suffers because Opendoors has exercised its rights under this clause.
- Without prejudice to Opendoors’ other remedies at law Opendoors shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to Opendoors shall, whether or not due for payment, become immediately payable if:
- any money payable to Opendoors becomes overdue, or in Opendoors’ opinion the Client will be unable to make a payment when it falls due;
- 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
- a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.
- Opendoors 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 Opendoors shall repay to the Client any money paid by the Client for the Goods. Opendoors shall not be liable for any loss or damage whatsoever arising from such cancellation.
- 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 Opendoors as a direct result of the cancellation (including, but not limited to, any loss of profits).
- 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.
- All disputes and differences between the Client and Opendoors touching and concerning this agreement shall be referred to arbitration under a single arbitrator agreed upon by both parties, or failing agreement, by two arbitrators (one to be appointed by each party) and their umpire (appointed by them prior to arbitration), such arbitration to be carried out in accordance with provisions of the Arbitration Act 1996.
Compliance with Laws
- The Client and Opendoors 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.
- The Client shall obtain (at the expense of the Client) all licenses and approvals that may be required for the Services.
Privacy Act 1993
- The Client authorises Opendoors or Opendoors’ Opendoors to:
- access, collect, retain and use any information about the Client;
- (including any overdue fines balance information held by the Ministry of Justice) for the purpose of assessing the Client’s creditworthiness; or
- for the purpose of marketing products and services to the Client.
- disclose information about the Client, whether collected by Opendoors from the Client directly or obtained by Opendoors 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.
- access, collect, retain and use any information about the Client;
- Where the Client is an individual the authorities under clause 1 are authorities or consents for the purposes of the Privacy Act 1993.
- The Client shall have the right to request Opendoors for a copy of the information about the Client retained by Opendoors and the right to request Opendoors to correct any incorrect information about the Client held by Opendoors.
Construction Contract Act 2002
- The Client hereby expressly acknowledges that:
- Opendoors 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:
- the payment is not paid in full by the due date for payment and no payment schedule has been given by the Client; or
- 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
- the Client has not complied with an adjudicator’s notice that the Client must pay an amount to Opendoors by a particular date; and
- Opendoors has given written notice to the Client of its intention to suspend the carrying out of construction work under the construction contract.
- if Opendoors suspends work, it:
- is not in breach of contract; and
- 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
- is entitled to an extension of time to complete the contract; and
- 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.
- if Opendoors exercises the right to suspend work, the exercise of that right does not:
- affect any rights that would otherwise have been available to Opendoors under the Contractual Remedies Act 1979; or
- enable the Client to exercise any rights that may otherwise have been available to the Client under that Act as a direct consequence of Opendoors suspending work under this provision.
- Opendoors 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:
- The failure by Opendoors to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect Opendoors’ 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.
- These terms and conditions and any contract to which they apply shall be governed by the laws of New Zealand and are subject to the jurisdiction of the courts of Tauranga.
- Opendoors 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 Opendoors of these terms and conditions (alternatively Opendoors’ liability shall be limited to damages which under no circumstances shall exceed the Price of the Goods).
- 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 Opendoors nor to withhold payment of any invoice because part of that invoice is in dispute.
- Opendoors may license or sub-contract all or any part of its rights and obligations without the Client’s consent.
- The Client agrees that Opendoors may amend these terms and conditions at any time. If Opendoors makes a change to these terms and conditions, then that change will take effect from the date on which Opendoors notifies the Client of such change. The Client will be taken to have accepted such changes if the Client makes a further request for Opendoors to provide Goods to the Client.
- 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.
- The Client warrants that it has the power to enter into this agreement and has obtained all necessary authorisations to allow it to do so, it is not insolvent and that this agreement creates binding and valid legal obligations on it.