Terms & Conditions of Trade

While it might feel a bit time-consuming to read the fine print, we do believe it is the best way to manage expectations and avoid any surprises. Our terms of trade set out what we will deliver to you and what we expect from you. The last thing we want is a mismatch in understanding and a poor outcome for you, the homeowner.

We believe in providing great service and we take pride in our standards. The terms of trade below serve as the criteria for all the work we carry out. These terms override any agreements made in person, over the telephone, or in any other communication.

When you ask Shawbuild to carry out work on your behalf, you agree to uphold your obligations under these terms of trade.

If you have any questions, please contact us on our office number 0429 480 194 or email us at info@shawbuild.net If you are unhappy with the work we provide, or have any problems or comments, please let us know immediately. We will do our best to fix any problems right away. If you do not give us feedback or if you delay payment, it makes it difficult for us to put things right.

We take pride in what we do and would love for you to use us again and tell your friends. You can be sure that we want you to get the outcome you are after, as much - if not more- than you do.

The following terms and conditions are applicable to the provision of building and construction services and building materials (“the Building Work”) by Shawbuild (trading as “Shawbuild”). No other terms, conditions or deviations from these terms and conditions shall be binding unless accepted in writing by an authorised representative of Shawbuild. In the event of a conflict between these terms and conditions and any accompanying documentation, the terms and conditions of the accompanying documentation shall prevail.

1.        Plans and Specifications

Copyright and ownership in all drawings, specifications and other technical information provided by Shawbuild in connection with the contract are vested in Shawbuild. Where Shawbuild has followed plans and specifications provided by the customer or their agent, the customer shall indemnify Shawbuild against all damages, penalties, costs, and expenses in respect of which Shawbuild may become liable through the utilisation of those plans and specifications.

2.        Quotation and Acceptance

Shawbuild shall produce a formal quotation for the Customer for the Building Work. The quotation shall be subject to the clarifications and exclusions set out in the documentation accompanying these terms and conditions and shall be valid for thirty (30) days from the date specified on the quotation.

The customer shall accept the quotation by signing the acceptance form accompanying the quotation and signing a copy of any plans and specifications attached to the quotation if provided. Accepting the quotation in the manner specified in this clause shall constitute a binding contract and acceptance of the terms and conditions. 

3.        Variations

Except as expressly provided in these terms and conditions, no variation or alteration to the scope of the Building Work shall be binding on the parties unless recorded in writing and signed by both parties, including any adjustment to the contract price.

Any changes required due to ambiguous drawings or other documentation provided by the customer or their agent will be treated as a variation to the Building Work.

4.        Cancellation

Suppose the customer wishes to cancel the contract for the Building Work at any time after acceptance of the quotation. In that case, the customer shall pay all actual and reasonable costs and expenses incurred by Shawbuild together with a reasonable administration fee, provided that the customer shall not be entitled to cancel the contract once the Building Work has commenced without the prior written consent in writing of Shawbuild.

Shawbuild shall, without any liability and without any prejudice to any other right it has in law or equity, have the right by notice to suspend or cancel in whole or in part any contract for the supply of goods or services to the customer if the customer fails to pay any money owing after the due date, or if the customer commits an act of bankruptcy as defined in section 19 of the Insolvency Act 2006, or if liquidation proceedings are commenced concerning the customer, or if the customer shall otherwise become bankrupt or insolvent, or if any other event occurs which evidences a lack of creditworthiness or insolvency on the part of the customer. Any cancellation or suspension by Shawbuild according to this clause shall not affect Shawbuild’s claim for money due at the time of cancellation or suspension or for damages for any breach of any terms of this contract or the customer’s obligations to Shawbuild under these terms and conditions.

5.        Price

The price of the building work shall be the price stated in the quotation together with all extras selected by the customer and subject to variation in accordance with clause 3. The price quoted for the building work includes GST, as stipulated in the quotation.

Where no price is stated in writing or agreed, the goods and/or services shall be deemed sold and/or supplied at the current price, applying when the invoice for the goods or services is issued to the customer.

Notwithstanding anything contained in this clause or the quotation, the price of the goods and/or services may be increased by the amount of any reasonable increase in the cost of supply of the goods or services between the date upon which the quotation is delivered to the customer and the date upon which the goods or services are supplied and where such increase is beyond the reasonable control of Shawbuild.

6.        Payment

The customer shall pay for the Building Work in full on or before.

i.         within seven (7) days of the date of the invoice.

Shawbuld will prepare all invoices for progress payments to meet the provisions of the Construction Contract Act 2002. All invoices issued pursuant to the contract shall be in the form of a payment claim within the meaning of the Construction Contracts Act 2002. The customer is hereby notified of the requirements of the Construction Contracts Act 2002 in terms of issuing payment schedules. 

Shawbuild reserves the right to charge interest on all overdue accounts at the daily rate of 1.75 times Shawbuild’s bank total overdraft interest rate from the due date for payment until the date when payment is made and all expenses and costs (including legal costs as between solicitor and client and debt collection fees) incurred by Shawbuild in obtaining or attempting to obtain a remedy for the failure to pay. 

The customer may not deduct or withhold any amount (whether by set-off, counterclaim or otherwise) from any money owing to Shawbuild.

Receipt of a cheque, bill of exchange, or another negotiable instrument shall only constitute payment once such negotiable instrument is paid in full.

The customer expressly acknowledges that no retentions shall apply unless a provision for retention is incorporated within the prevailing conditions of Shawbuild.

7.        Commencement and Completion

The customer acknowledges that any estimates as to the time frames for the commencement and completion of the building work are approximate only. Shawbuild will use all reasonable endeavours to ensure the Building Work is commenced and completed within the specified time frame but shall not be liable for any delay or failure. Shawbuild shall not be responsible for delays caused by separate or nominated subcontractors. Should any delays occur, the customer agrees that all costs incurred by Shawbuild and resulting from such delays will be charged as a variation to the contract price.

8.        Repair of Defects

Where the Building Work undertaken is commercial, Shawbuild shall at its sole cost rectify any defects in the materials or workmanship which are notified to Shawbuild within ninety (90) days of completion of the Building Work and within a reasonable time of receiving written notification of those defects. Shawbuild shall not be liable under this clause to remedy:

-          defects covered by a manufacturer’s or supplier’s guarantee that is available to and may be enforced by the customer.

-          defects in or damage caused by work undertaken by the customer or any of the customer’s contractors.

Where the Building Work is residential, any notification by the customer in writing to Shawbuild within seven (7) months from the completion of the Building Work shall be rectified by Shawbuild at Shawbuild’s costs within a reasonable time of notification by the customer of the defect. Shawbuild shall not be liable under this clause to remedy:

-          defects covered by a manufacturer’s or supplier’s guarantee that is available to and may be enforced by the customer.

-          defects in or damage caused by work undertaken by the customer or any of the customer’s contractors.

9.        Risk and Insurance

Any goods supplied by Shawbuild shall be at the sole risk of Shawbuild until the earlier payment for the goods and delivery of the goods to the customer.

If the Building Work involves an extension or alteration to existing premises, the customer shall be solely responsible for arranging an extension of the customer’s insurance policy to cover all associated risks.

Shawbuild will ensure that its relevant business insurance is constantly maintained and updated.

10.      Ownership

Ownership of any goods and/or materials supplied as part of the Building Work shall only pass to the customer once all amounts owing by the Customer to Shawbuild in respect of the goods and/or materials have been paid in full.

The customer acknowledges and agrees that by assenting to these terms & conditions, the customer grants a Purchase Money Security Interest to Shawbuild, as that term is defined in the Personal Property Securities Act 1999 (“PPSA”), in all goods and/or materials supplied by Shawbuild to the customer. 

The customer irrevocably undertakes to sign any further documents and/or provide any additional information (which information the Customer warrants to be complete, accurate and up-to-date in all respects) that Shawbuild may reasonably require to enable registration of a financing statement or financing change statement on the Personal Property Securities Register. The customer shall meet the costs of registering a financing statement or a financing change statement and may, where applicable, be debited against the customer’s credit account with Shawbuild. The customer shall not agree to allow any person to register a financing statement over any of the goods supplied by Shawbuild without the prior written consent of Shawbuild and will immediately notify Shawbuild in writing if the customer becomes aware of any person taking steps to register a financing statement in relation to such goods. 

The Customer:

(a)       waives its rights to:

i.         receive a copy of any verification statement;

ii.        receive a copy of any financing change statement:

(b)        If the Goods are for the customer’s business use, the customer agrees, to the extent Part 9 of the PPSA applies, that it will have no rights under Part 9 of the PPSA.

The customer irrevocably grants Shawbuild the right to enter upon the customer’s property or premises without notice and without being in any way liable to the customer or to any third party if Shawbuild has cause to exercise any of Shawbuild’s rights under section 109 of the PPSA, and the customer shall indemnify Shawbuild from any claims made by any third party because of such exercise.

Shawbuild and the Customer agree that nothing in sections 114(1)(a), 116, 117(1)(c), 119, 120(2), 121, 125, 126, 127, 129, 131, and 132 of the PPSA will apply to these terms and conditions, or the security interest under these terms and conditions.

The customer will be responsible to Shawbuild for any costs or damages incurred in reclaiming and disposing of the unpaid goods and/or materials. Such costs include but are not limited to loss in value, cost or repossession, damaged premises and recovery, storage, resale and legal costs on a solicitor and client basis. These costs shall be recoverable as a debt due to Shawbuild by the Customer. 

11.      Warranty and Liability

The warranties, descriptions, representations, or conditions, whether implied by law, trade, custom or otherwise, are all other liability of Shawbuild, whether in tort (including negligence), contract or otherwise, is expressly excluded to the fullest extent permitted by law.

Insofar as Shawbuild may be liable, notwithstanding anything contained in these terms and conditions, to the extent permitted by law, the total liability of Shawbuild, whether in tort (including negligence), contract or otherwise, for any loss, damage or injury arising directly or indirectly out of the completion of the Building Work or any other breach of Shawbuild’s obligations is limited to the lesser of:

(a)       to the price of goods and/or materials complained of;

(b)       the cost of completing any necessary repairs/remedial work; or

(c)       the actual loss or damage suffered by the customer.

Except where statute expressly requires otherwise, Shawbuild is not liable in any event for any loss of profits, consequential, indirect or special damage, loss or injury of any kind suffered by the customer or any other person.

12.      Collection and Use of Information

The customer authorises Shawbuild to collect, retain and use any information about the customer to assess the customer’s creditworthiness and/or enforce any rights under this contract.

The customer authorises Shawbuild to disclose any information obtained to any person for the purposes set out in this clause. Where a customer is a natural person, the authorities under this clause are authorities or consents for the Privacy Act 1993. 

13.      Miscellaneous

Shawbuild shall not be liable for delay or failure to perform its obligations if the cause of the delay or loss is beyond its control.

Failure by Shawbuild to enforce any of the terms and conditions contained in this contract shall not be deemed to be a waiver of any of the rights or obligations Shawbuild has under this contract.

If any provision of this contract shall be invalid, void or illegal or unenforceable, the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or implied.

The customer may not assign any of its rights or obligations under this contract without the prior written consent of Shawbuild.

14.      Personal Guarantee

In consideration for Shawbuild agreeing to complete the Building Work at the request of the customer, where the customer is a company or trust, the directors or trustees signing this contract also sign this contract in their capacity and jointly and severally personally undertake as principal debtors to Shawbuild the payment of all sums of money owed by the Customer to Shawbuild and indemnify Shawbuild against non-payment by the customer.

15.      Governing Law

The terms and conditions shall be governed by and construed in accordance with the laws of Australia, and the parties shall submit to the exclusive jurisdiction of the Australian courts.

16.      Agency

The customer authorises Shawbuild to contract as principal or agent for goods or services.

Where Shawbuild enters a contract of the type referred to in this clause, the customer agrees to pay any amounts due under that contract.

Any list of proposed subcontractors supplied by Shawbuild is provided without prejudice, and Shawbuild reserves the exclusive right to change subcontractors without adjustment to the quotation. 

17.      Dispute Resolution

In the event of a dispute or disagreement arising between Shawbuild and the Customer, the party with a grievance may give written notice to the other party specifying the nature of the dispute or controversy and the remedy sought and requiring that the conflict or disagreement be determined and settled in accordance with this clause.

On receipt of the notice, the parties shall each appoint a representative with authority to determine the grievance or dispute, and those two representatives shall meet as soon as reasonably possible to see if they can determine the grievance. All discussions, meetings and correspondence between the two representatives shall be deemed without prejudice and concession of liability and shall not be used by either party in any later proceedings unless:

(a)       Both parties agree, or

(b)       The two representatives reach an agreement, but one party fails to honour the such agreement.

If the two representatives cannot within fourteen (14) days of being appointed, reach an agreement on how the grievance or dispute is to be determined, the parties shall refer the dispute to an independent expert who is acceptable to both parties. Suppose the parties cannot or do not agree on an independent expert within three (3) days of the first suggestion of a suitable person. In that case, either party may ask the President of the New Zealand Registered Master Builders Federation to nominate a person to act as an independent expert, and the first person so nominated who is able and willing to be appointed shall be deemed the independent expert for this clause. The independent expert shall:

(a)       Set their own rules and procedure for resolving the grievance or disagreement.

(b)       At all times, act in good faith and in an unbiased way

(c)       Promptly hear and determine the dispute.

(d)      Provide a written decision (with reasons for that decision) if requested by either party.

(e)       The independent experts:

(f)       Decision shall be binding on both parties:

(g)       Costs shall be paid equally by the parties unless the independent expert decides otherwise in their decision.

Even anything contained in clause 17 disputes more than ten thousand dollars.

($10,000.00) shall be referred at Shawbuild’s sole discretion to arbitration under the Arbitration Act 1996 or any subsequent Act passed in its place. 

18.      Mortgage 

The customer agrees that should provide any goods or materials. (“Goods”) supplied by Shawbuild be affixed or installed in a property such as to render them a fixture of that property, the customer agrees that in consideration of Shawbuild allowing the goods to be so affixed or installed, the customer shall, upon written demand being made by Shawbuild at any time but before payment in full is made to Shawbuild, execute a Memorandum of Mortgage (“Mortgage”) over the property in which the goods have become a fixture in favour of Shawbuild (to be prepared by Shawbuild’s solicitors at the customer’s cost), for the amount equivalent to the unpaid balance owing plus any interest and fees owing thereon until paid in full. The terms of such mortgage shall be collateral to the terms hereof, and payment in full of the amounts due to Shawbuild hereunder shall operate as a complete discharge of the mortgage. Shawbuild agrees not to make a demand on the customer to execute such a mortgage unless any of the following occur:

(a)       Failures to make payment on the due date.

(b)       Any composition with creditors, an act of bankruptcy, winding up or receivership of the customer.

The mortgage referred to in this clause 18 hereof shall be the ADLS form approved by the Registrar General of Land 2007/4237, and the covenants of the said form, whether executed by the customer or not, shall be deemed to be included. The customer hereby authorises Shawbuild to lodge and maintain a Caveat against the title to the property in which the goods have been affixed or installed to protect the above mortgage agreement should Shawbuild, in its absolute discretion, consider it necessary to lodge such a Caveat. The customer hereby grants to Shawbuild an irrevocable power of attorney in relation to the property in which the goods have been affixed or installed to enable Shawbuild to execute the mortgage referred to in this clause 18 hereof should the mortgage not be completed by the customer any reason whatsoever Provided that Shawbuild will not execute a mortgage as an attorney for the Customer unless Shawbuild has requested in writing that the customer executes the mortgage according to the terms of this agreement and the customer has failed to execute such a mortgage within five (5) working days of such request.