Terms and conditions – March 2022
Please read these Terms and Conditions carefully, as they set out each of our legal rights and obligations in relation to our services.
STANDARD TERMS AND CONDITIONS OF HEALTHY HOMES NEW ZEALAND
Please read these Terms and Conditions carefully, as they set out each of our legal rights and obligations in relation to our services.
1. Definitions and interpretation
1.1. In these Terms and Conditions:
“Agreement” means our contract with you for the supply of Goods and Services incorporating these Terms and Conditions, and any amendments to such a contract from time to time;
“Acceptance Email” means the email document issued by us confirming an Agreement, or other correspondence from us detailing the scope of the Goods and Services, identifying you as our Client and other matters relating to an Agreement or our provision of Goods and Services;
“Client” “you” and “your” means the client under an Agreement, as identified in our Acceptance Email and/or the client purchasing Goods from us via our Website;
“Effective Date” means the date we provide our Acceptance Email to you;
“Force Majeure Event” means an event, or a series of related events, that is outside the reasonable control of the party affected (including power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars);
“Goods” means goods purchased from us via our Website, including but not limited to heat pumps, range hoods, extractor fans, insulation and related products.
“Healthy Homes Standards” means the standards prescribed under the Residential Tenancies (Healthy Homes Standards) Regulations 2019;
“No Show Fee” means the amount of $119.00 plus GST payable in accordance with clause 15.2 and which may be varied in accordance with Clause 6.2;
“Price” means the price payable by you to us in respect of an Agreement and/or for Goods and Services, as set out in our Acceptance Email and which may be varied in accordance with Clause 6.2;
“Property Owner” means the legal or beneficial owner of the property subject to the Agreement;
“Services” means, as set out in our Acceptance Email, the provision of healthy home testing services (“HH Testing”) and/or property maintenance services including installation of Goods;
“Term” means the term of an Agreement.
“We” “us” and “our” means The Davy Group Property Services Limited TRADING AS Healthy Homes New Zealand and its successors and assigns or any person acting on behalf of and with the authority of The Davy Group Property Services Limited;
“Website” means our website at www.healthyhomesnz.co.nz
“Working Day” means any weekday, other than a bank or public holiday in Auckland;
1.2. In these Terms and Conditions, a reference to a statute or statutory provision includes a reference to:
1.2.1. that statute or statutory provision as modified, consolidated and/or re-enacted from time to time; and
1.2.2. any subordinate legislation made under that statute or statutory provision.
1.3. The Clause headings do not affect the interpretation of these Terms and Conditions.
1.4. In these Terms and Conditions, “persons” includes companies, partnerships, limited liability partnerships, unincorporated associations and trusts.
2.1. Our receipt of a work order or other instruction from you together with our subsequent provision of an Acceptance Email to you confirming the details of an Agreement, or your submission of a purchase order for Goods or Services via our Website, shall be evidence of your acceptance of these Terms and Conditions and your intention to be bound by them.
2.2. Acceptance of our Terms and Conditions as set out in clause 2.1 creates a legally binding contract between you and us regardless that your work order or instructions are on behalf of the Property Owner as their property manager or agent.
2.3. Upon acceptance these Terms and Conditions are irrevocable and can only be rescinded in accordance with these Terms and Conditions or with our written consent.
2.4. These Terms and Conditions are to be read in conjunction with our Acceptance Email as provided by us to you. If there are any inconsistencies between the two documents then the provisions contained in this document shall prevail.
3.1. Each Agreement will come into force on its Effective Date and will continue in force until completion of the Agreement, unless and until terminated in accordance with Clause 16.
4. Goods and Services
4.1. We will supply the Goods and Services to you in accordance with the terms of each Agreement, and at all times in a professional manner and in accordance with appropriate standards. We will not be responsible for any make-good repairs or re-painting in circumstances where we have replaced or installed goods (for example make-good of ceiling paint after replacement of smoke detectors)
4.2. We may suspend the provision of the Goods and Services if you fail to pay by the due date any amount due to us in respect of an Agreement.
4.3. From time to time during the Term we may be unable to supply the Services by reason of personnel illness or personnel shortage, in which case:
4.3.1. we will use reasonable endeavours to engage alternative personnel to supply the Services; and
4.3.2. subject to our compliance with Clause 4.3.1, we will not be in breach of the terms of the Agreement by virtue of any failure to supply the Services arising out of such inability.
4.4. From time to time we may be unable to provide the brand of Goods set out in an Agreement or Acceptance Email, due to reasons beyond our control such as our suppliers being out of stock, in which case we may, at our sole discretion, provide a similar or replacement brand.
5. Client obligations
5.1. You will indemnify us and will keep us indemnified against any and all losses, costs, expenses, damages and liabilities (including legal expenses and amounts paid in settlement of legal claims or proceedings) arising directly or indirectly out of any breach by you of an Agreement.
5.2. You will not be relieved of your obligations under an Agreement by any failure of the Property Owner to pay you for Goods and Services provided by us under an Agreement entered into with you. For the sake of clarity, this means that you will be liable to pay for the Goods and Services provided by us even if you are working as an agent or property manager for the Property Owner at the time of entering into an Agreement and regardless whether the Property Owner has paid you for the Goods and Services provided.
5.3. You will indemnify us and will keep us indemnified against any and all losses, costs, expenses, damages and liabilities (including legal expenses and amounts paid in settlement of legal claims or proceedings) in relation to tenants’ belongings, property or vehicles that are or may be identifiable in our report to you.
6. Price and Payment
6.1. At our sole discretion the Price shall be the Price quoted on our Acceptance Email which shall be binding upon us provided that you shall accept our quotation in writing within thirty (30) days.
6.2. We may, by giving notice to you, increase the Price of the Goods and Services and/or the No Show Fee to reflect any increase in the cost to us beyond our reasonable control (including, without limitation, increases in taxes or insurance premiums).
6.3. Time for payment for the Goods and Services shall be of the essence and at our sole discretion payment shall be due upon your receipt of our Acceptance Email.
6.4. Payment must be made in cleared funds by credit card payment via our website or by direct credit via electronic/online banking to the account specified on our invoice, or by any other method stipulated by us.
6.5. GST and other taxes and duties that may be applicable shall be added to the Price and shall be paid by you at the time of paying the Price.
7.1. You warrant that you have the power to enter into this Agreement and have obtained all necessary authorisations to allow you to do so, you are not insolvent and that this agreement creates binding and valid legal obligations on you.
7.2. We warrant to you that:
7.2.1. We have the legal right and authority to enter into and perform our obligations required by each Agreement; and
7.2.2. the Services will be performed with reasonable care and skill.
7.3. If you believe that Goods and Services have not been provided in accordance with Clause 7.2.2, then you must:
7.3.1. notify us promptly; and
7.3.2. allow and enable us to review the Services provided and re-perform the relevant Services.
7.4. All of the parties’ warranties and representations in respect of the subject matter of the Agreement are expressly set out in these Terms and Conditions and in the Acceptance Email. To the maximum extent permitted by applicable law and subject to Clause 7.1, no other warranties or representations concerning the subject matter of the Agreement will be implied into these Terms and Conditions, the Acceptance Email, the Agreement or any other contract.
7.5. You must notify us promptly of any defects discovered in the Goods or provision of the Services. Provided that you advise us in writing within 90 days of completion of our work or any defined stage of our work, we will:
7.5.1. remedy any defective Services provided;
7.5.2. repair or replace, at our sole discretion, any faulty Goods.
7.6. We will not be liable for any consequential costs or losses arising directly or indirectly out of any defective Goods and/or provision of the Services, including for any damage subsequent to our installation of smoke detectors.
7.7. All Goods are provided subject to the manufacturer’s standard warranty, which is usually between one and five years, depending on the product. We do not warrant that manufacturers’ repair facilities and parts will be available for the Goods.
7.8. Our warranty is in addition to any rights you may have as a consumer under the Consumer Guarantees Act 1993. The guarantees implied by that Act are expressly excluded if you are acquiring Goods for the purpose of a business, to the extent that the Goods are being used in a commercial or trade context.
7.9. We warrant the Services for a period of 2 years from the date of the Services being provided. Where
relevant we reserve the right to affix a record of service on the Goods and we shall endeavour to place it
as discretely as possible.
7.10. At our sole discretion, we will reinstall faulty Goods replaced under clauses 7.5 or 7.7 at our cost or alternatively at a price negotiated with you.
7.11. The above warranties are subject to:
7.11.1. no damage or misuse of the Goods by you;
7.11.2. correct installation and operation of the Goods (if we have not installed them);
7.11.3. adequate packaging, cleaning and maintenance of the Goods in accordance with our instructions to you;
7.11.4. only authorised repairs and modifications being made to the Goods.
8.1. We carry public liability cover in respect of the provision of the Services under an Agreement in the amount of $5,000,000.00. We do not currently carry, and as such we hereby expressly exclude any liability for, professional indemnity cover in relation to provision of the Goods and Services under an Agreement.
9. Purchase, Title and Risk
9.1. You acknowledge and agree that ownership of the Goods shall not pass, until:
9.1.1. you have paid us all amounts owing for the Goods; and
9.1.2. you have met all other obligations due by you to us in respect of all contracts between us and you; and
9.1.3. receipt by us of any form of payment other than cleared funds in our bank account, shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised and until then our ownership or rights in respect of the Goods, and this agreement, shall continue.
9.2. It is further agreed that:
9.2.1. Until ownership of the Goods passes to you in accordance with clause 8.1 that you are only a bailee of the Goods and unless they have become fixtures you must return them to us on request;
9.2.2. You hold the benefit of your insurance of the Goods on trust for us and must pay to us the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed;
9.2.3. The production of these Terms and Conditions by us shall be sufficient evidence of our rights to receive the insurance proceeds direct from the insurer without the need for any person dealing with us to make further enquiries;
9.2.4. You 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 you sell, dispose or part with possession of the Goods then you must hold the proceeds of any such disposition on trust for us and must pay or deliver the proceeds to us on demand;
9.2.5. You should not convert or process the Goods or intermix them with other goods but if you do so then you hold the resulting product on trust for the benefit of us and must sell, dispose of or return the resulting product to us as we so direct;
9.2.6. Unless the Goods have become fixtures you irrevocably authorise us to enter any premises where we believe they are kept and recover possession of them;
9.2.7. We may recover possession of any Goods in transit whether or not delivery has occurred;
9.2.8. You shall not charge or grant an encumbrance over the Goods nor grant nor otherwise give away any interest in the Goods while they remain our property.}
10. Security and Charge
10.1. In consideration of us agreeing to provide Goods and/or Services to you on credit, you charge by way of mortgage all of your rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by you either now or in the future, to secure the performance by you of your obligations under these Terms and Conditions (including, but not limited to, the payment of any money).
10.2. You indemnify us from and against all our costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising our rights under this clause.
10.3. You irrevocably appoint us and each of our directors as your true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause including, but not limited to, signing any document on your behalf.
11. Personal Property Securities Act 1999 (“PPSA”)
11.1. By agreeing to be bound by these Terms and Conditions you acknowledge and agree that:
11.1.1. these Terms and Conditions constitute a security agreement for the purposes of the PPSA; and
11.1.2. a security interest is taken in all Goods being purchased by you and provided to you on credit by us.
11.2. You undertake to:
11.2.1. sign any further documents and/or provide any further information (such information to be complete, accurate and up-to- date in all respects) which we may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register;
11.2.2. indemnify, and upon demand reimburse, us 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;
11.2.3. not register a financing change statement or a change demand without our prior written consent.
11.3. You agree with us that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these Terms and Conditions.
11.4. You waive your rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA.
11.5. Unless otherwise agreed to in writing by us, you waive your right to receive a verification statement in accordance with section 148 of the PPSA.
11.6. You unconditionally ratify any actions taken by us under clauses 11.1 to 11.5.
12. Limitations and exclusions of liability
12.1. Nothing in these Terms and Conditions will:
12.1.1. limit or exclude the liability of a party for death or personal injury resulting from negligence;
12.1.2. limit or exclude the liability of a party for fraud or fraudulent misrepresentation by that party;
12.1.3. limit any liability of a party in any way that is not permitted under applicable law;
12.1.4. exclude any liability of a party that may not be excluded under applicable law; or
12.1.5. limit or exclude any statutory rights that a party has as a consumer.
12.2. The limitations and exclusions of liability set out in this Clause 12 and elsewhere in these Terms and Conditions:
12.2.1. are subject to Clause 12.1; and
12.2.2. govern all liabilities arising under the Agreement or in relation to the subject matter of the Agreement, including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty.
12.3. You accept that we operate to a best practice model using proven methods for testing and test location selection. This ensures that we provide you with the best possible testing, however it does not guarantee that we will find all issues related to the Healthy Home Standards, particularly if efforts have been made to hide such. We will not be held liable for a failure to locate issues, or if such is found at the property at a later date.
12.4. We will not be liable to you for any losses arising out of a Force Majeure Event.
12.5. In circumstances where we are providing Services based on information provided by you and/or your property manager, or a Healthy Homes report provided by another party we will not be liable for any losses to, or costs incurred by, you resulting from the other party’s report.
13. Force Majeure Event
13.1. Where a Force Majeure Event gives rise to a failure or delay in either party performing its obligations required by any Agreement (other than obligations to make payment), those obligations will be suspended for the duration of the Force Majeure Event.
14. Default and Consequences of Default
14.1. At our sole discretion 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 our sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
14.2. If you owe us any money you shall indemnify us from and against all costs and disbursements incurred by us in recovering the debt (including but not limited to legal costs on a solicitor and own client basis, our collection agency costs, and bank dishonour fees).
14.3. Without prejudice to any other remedies we may have, if at any time you are in breach of any obligation (including those relating to payment) under these Terms and Conditions we may suspend or terminate the provision of Services to you. We will not be liable to you for any loss or damage you suffer because we have exercised our rights under this clause.
15.1. We will work with you to arrange a suitable time to provide the Goods and Services under each Agreement. If we are unable to access the property to provide the Goods and Services at the arranged time the Agreement will be terminated in accordance with clause 16.3.
15.2. If the Agreement is terminated due to our being unable to access the property at the arranged time we reserve the right to charge you a No Show Fee.
16.1. Either party may terminate an Agreement immediately by giving written notice to the other party if the other party:
16.1.1. commits any material breach of any provision of these Terms and Conditions or the relevant Acceptance Email, and:
16.1.2. the breach is not remediable; or
16.1.3. the breach is remediable, but the other party fails to remedy the breach within 10 working days of receipt of a written notice requiring it to do so; or
16.1.4. persistently breaches these Terms and Conditions and/or the relevant Acceptance Email.
16.2. Either party may terminate an Agreement immediately by giving written notice to the other party if:
16.2.1. the other party:
ceases to conduct all (or substantially all) of its business;
is or becomes unable to pay its debts as they fall due;
is or becomes insolvent or is declared insolvent; or
convenes a meeting, or makes or proposes to make any Agreement or composition, with its creditors;
16.2.2. an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the other party;
16.2.3. an order is made for the winding up of the other party, or the other party passes a resolution for its winding up (other than for the purpose of a solvent company re-organisation where the resulting entity will assume all the obligations of the other party under the Agreement); or
16.2.4. where that other party is an individual that other party dies, or as a result of illness or incapacity becomes incapable of managing his or her own affairs, or is the subject of a bankruptcy petition or order.
16.3. We may terminate and Agreement if you fail to provide access to the property in accordance with clause 15. If an Agreement is terminated under this clause then you will forfeit the Price already paid and you will need to arrange and pay for a new Agreement at a later time and/or date.
16.4. We may terminate an Agreement immediately at any time by giving written notice to you if you fail to pay in full and on time any amount due to us, whether due in respect of that Agreement or otherwise.
17. Effects of termination
17.1. Upon termination of an Agreement, all the provisions of these Terms and Conditions and the Acceptance Email will cease to have effect, save that the following provisions of these Terms and Conditions will survive and continue to have effect (in accordance with their terms or otherwise indefinitely): Clauses 1, 2, 5, 7, 12, 14, 17, 18 and 23.
17.2. Termination of an Agreement will not affect either party’s accrued liabilities and rights (including accrued rights to be paid) as at the date of termination.
18.1. The provisions of this agreement are strictly confidential to the parties. Neither party may disclose or permit to be disclosed any provision of, or any information (and particularly any financial information) relating to the subject of these Terms and Conditions to any person not a party without first obtaining the written consent of the other party as to both the person to whom disclosure is to be made and the terms of such disclosure.
19. Dispute Resolution
19.1. We will endeavour, but will not be required to resolve all disputes between you and us amicably provided that if we cannot resolve a dispute, then no proceedings will be issued in Court in respect of the dispute without the dispute first being mediated by a single mediator appointed by agreement between the parties and failing agreement and on the application of one of them, by the Chief Executive Officer for the time being of the Resolution Institute of New Zealand.
20. Compliance with Laws
20.1. The parties 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, including but not limited to the Health and Safety at Work Act 2015, the Residential Tenancies (Healthy Homes Standards) Regulations 2019 and the Consumer Guarantees Act 1993.
21. Consumer Guarantees Act 1993
21.1. You agree that any guarantees provided under the Consumer Guarantees Act 1993 that apply to our provision of Goods and Services to you are expressly excluded where you enter an Agreement for the purposes of a business.
22. Privacy Act 2020
22.1. You authorise us or our agent to:
22.1.1. access, collect, retain and use any information about you;
• for the purpose of assessing your creditworthiness; and/or
• for the purpose of marketing products and services to you; and/or
• for the purpose of providing Goods and Services to you.
22.1.2. disclose information about you, whether collected by us from you directly or obtained by us 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 you.
22.2. The authorities under clause 22.1 are authorities or consents for the purposes of the Privacy Act 2020 (“Privacy Act”).
22.3. You shall have the right to request a copy of the information about you retained by us and the right to request us to correct any incorrect information about you held by us.
22.4. Where you authorise us to access information on your behalf for the purpose of providing Goods and Services to you, including by accessing information via Application Programming Interface (“API”) or any other method, you are responsible for obtaining any Privacy Act consents in relation to any personal information contained therein.
22.5. You specifically indemnify and hold us harmless from any claim in relation to breach of privacy for any personal information accessed in the manner referred to in clause 22.4.
23.1. Our failure to enforce any provision of these Terms and Conditions shall not be treated as a waiver of that provision, nor shall it affect our right to subsequently enforce that provision.
23.2. 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.
23.3. 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 courts of New Zealand.
23.4. We shall be under no liability whatever to you for any indirect or consequential loss and/or expense (including loss of profit) suffered by you arising out of a breach by us of these Terms and Conditions.
23.5. In the event of any breach of this contract by us your remedies shall be limited to damages. Under no circumstances shall our liability exceed the Price of the Goods and Services.
23.6. You shall not be entitled to set off against or deduct from the Price any sums owed or claimed to be owed to you by us.
23.7. We reserve the right to review these Terms and Conditions at any time. If, following any such review, there is to be any change to these Terms and Conditions, then that change will take effect from the date on which we notify you of such change.
23.8. Subject to clause 23.7, the Terms and Conditions of a particular Agreement may not be varied except by a written document signed by or on behalf of each of the parties.
23.9. We may freely assign our rights and obligations under any Agreement without your consent. Save as expressly provided in this clause or elsewhere in these Terms and Conditions, neither party may, without the prior written consent of the other party, assign, transfer, charge, license or otherwise dispose of or deal in any rights or obligations under any Agreement.
23.10. Each Agreement is entered into for the sole benefit of the parties and is not intended to benefit any third party or be enforceable by any third party.