Payment

Terms and Conditions

1. Interpretation

1.1 In this Contract:

Builder’s Margin means the percentage figure entered in the relevant box in the section headed “Builder’s Margins” in the Key Terms.

Building Consent means a Building Consent issued for the Building Work by a building consent authority under the Building Act 2004.

Building Work means the building services to be provided by Master Design (and/or Master Design’s subcontractors and suppliers) as described in the Key Terms (subject to any Variations).

Business Day means a day other than a Saturday, Sunday or public holiday in Auckland, New Zealand.

CCA means the Construction Contracts Act 2002.

CGA means the Consumer Guarantees Act 1993.

Code Compliance Certificate means a certificate issued by the building consent authority under section 95 of the Building Act 2004.

Confidential Information means any information (whether written, electronic or otherwise):

(a) relating to the terms of this Contract;

(b) relating directly or indirectly to the business or affairs of either party; or

(c) disclosed by either party to the other party on the express basis that such information is confidential; or

(d) which might reasonably be expected by either party to be confidential in nature.

Contract means this contract between the Parties comprising the Key Terms and the Terms and Conditions together with other Contract Documents.

Contract Documents means the plans, drawings, specifications, or other documents which contain the detailed descriptions, diagrams and instructions relating to the performance of the Building Work, including any document detailing the scope of work (to the extent that it has not been superseded).

Deposit means the amount entered in the relevant box in the section headed “Deposit” in the Key Terms.

Default Interest Rate means 8% per annum.

Expected Start Date means the date entered in the relevant box in the section headed “Expected Start Date” in the Key Terms.

Expected Completion Date means the date entered in the relevant box in the section headed “Expected Completion Date” in the Key Terms.

Final Contract Price has the meaning given to it in clause 6.2.

Force Majeure means in relation to either party (the Affected Party) an event or circumstance which is beyond the reasonable control of that party, including (without limitation) any:

(a) Act of God;

(b) Strike, lock out or other industrial disturbance by or amongst employees of a person other than the Affected Party;

(c) Act of public enemy, or declared or undeclared war or threat of war;

(d) Terrorist act, blockage, revolution, riot, insurrection, civil commotion or public demonstration (other than one caused by the Affected Party);

(e) Government or regional or local authority, restraint, legislation or by-law,

but does not include lack of funds on the part of the Affected Party.

GST means goods and services tax in terms of the Goods and Services Tax Act 1985 at the rate prevailing from time to time.

Intellectual Property Rights means any rights in intellectual property that are recognised or protected under law including (without limitation) copyright, trade mark, design, patent, and other proprietary rights, as well as rights to software applications, whether registered or unregistered and whenever created.

Key Terms means the key terms section set out on the front page of this Contract.

Master Design Materials means any plant, equipment, appliances, products or materials that are intended to be incorporated into the Property as part of the Building Works.

Original Contract Price means the amount set out in the Key Terms.

Parties means the Client and Master Design.

Practical Completion means the point in time and the stage in the progression of the Building Work, when the Building Work has been effectively completed, notwithstanding that certain non-critical or aesthetic features are yet to be completed or minor omissions or defects are yet to be rectified.

Property has the meaning given in the Key Terms, being the place where the Building Work is to be carried out.

Provisional Sum means a sum included in the Original Contract Price for Building Work or materials to be supplied by Master Design, which is an estimate or an approximation in circumstances where it is impractical to precisely calculate the true cost at that point in time.

Variation means any Building Work or materials requested by the Client or agreed between the Parties that are not, whether expressly or by necessary implication, provided or allowed for in the Contract Documents or taken into account in the Original Contract Price, and any other event or circumstance which is treated as a Variation in this Contract, and includes any preparatory work done in connection with a proposed Variation whether or not it proceeds.

1.2 In this Contract unless the context otherwise requires:

1.2.1 Reference to any party includes that party’s executors, administrators, successors and/or permitted assigns (as the case may be);

1.2.2 Where a party includes more than one person, the covenants, agreements and warranties on the part of that party shall be deemed to be joint and several;

1.2.3 The singular includes the plural and vice versa and words importing one gender includes all genders;

1.2.4 Any covenant not to do anything shall also constitute an obligation not to suffer, permit, cause or assist any other person to do that thing;

1.2.5 The term includes or including (or similar) is deemed to be followed by the words without limitation.

1.2.6 Reference to any legislation or any provision of any legislation includes any amendment, modification, consolidation or re-enactment of the legislation or any legislative provisions substituted for, and all legislation and statutory instruments of, and regulations issued under, the legislation.

2. Commencement and Completion of Work

2.1 Master Design shall commence the Building Work within a reasonable time after:

2.1.1 The Contract has been signed by both parties; and

2.1.2 Any Deposit payable in accordance with clause 9.1 has been paid; and

2.1.3 Any necessary Building Consent or resource consent or other requisite consents or licences or consent amendments have been issued.

2.2 The Expected Start Date and Expected Completion Date are estimates of when the Building Work will be commenced and completed but time is not of the essence in relation to these dates or any other dates stated by Master Design.

3. Building Services and Works

3.1 Master Design will carry out the Building Work at the Property.

3.2 Master Design may, at its discretion, engage subcontractors to carry out all or any part of the Building Work.

4. Master Design’s Primary Obligations

4.1 Master Design shall carry out and perform the Building Work to the standard required by the Contract Documents (subject to any Variations) and (if applicable) the relevant Building Consent, and shall complete the Building Work as soon as is reasonably practicable.

4.2 As the Building Work is to be carried out for the purposes of a business, all guarantees, warranties, rights or remedies implied by the CGA, the Fair Trading Act 1986 or any similar statutes are expressly excluded. To the maximum extent permitted by law, all guarantees, warranties or provisions that would otherwise be implied by statute or rule of law are expressly excluded, as are any representations or statements made prior to these terms and conditions taking effect

4.3 Master Design will ensure that all persons engaged by it, whether as employees, sub-contractors or otherwise, are appropriately skilled and qualified for the performance of the tasks assigned.

4.4 Master Design will ensure that any materials or equipment used to carry out the Building Work is suitable for the Building Work to be performed.

4.5 Master Design will comply with (and ensure that its employees, agents, contractors and subcontractors comply with) all applicable laws insofar as they relate to the performance of its obligations under this Contract.

5. The Client’s Obligations

5.1 The Client will provide Master Design with full, free and uninterrupted access to the locations at which the Building Work it to be carried out and access to and use of the Client’s equipment(s) or assistance of the Client’s personnel, during the times necessary to enable the Client to perform the Building Work.

5.2 The Client will provide free of charge such other information, equipment and assistance as Master Design may reasonably require for the purposes of enabling Master Design to perform the Building Work within a reasonable timeframe.

5.3 The Client will comply with, (and ensure that its employees, agents, contractors and subcontractors comply with) all applicable laws, regulations, industrial awards and agreements and any relevant professional code of ethics insofar as they relate to the performance of its obligations under this Contract.

5.4 The Client will respond to any request from Master Design for a decision within a reasonable timeframe, so as to avoid or minimise delay to the performance of the Building Work.

5.5 The Client shall promptly provide all information reasonably required by Master Design to enable Master Design to comply with Master Design’s obligations under this Contract, whether prior to the commencement of, during the performance of, or after the completion of the Building Work.

5.6 Unless otherwise agreed in writing between the Parties, the Client shall obtain, arrange and pay for all project information memoranda, consents, certificates, approvals, authorities, licences and permits that are necessary for Master Design to carry out the Building Work.

6. Price

6.1 The Client shall pay Master Design the Final Contract Price, at the times and in the manner specified in this Contract.

6.2 The Final Contract Price will be the Original Contract Price adjusted for any Provisional Sums and Variations.

7. Provisional Sums

7.1 Any Provisional Sums shall be recalculated by reference to the actual expenditure incurred in connection with the relevant aspect of the Building Work, as soon as it is known. The actual expenditure shall be calculated on a cost reimbursement basis using the actual cost of labour, materials and other inputs, plus the relevant Builder’s Margin.

7.2 Any difference between the Provisional Sum and the actual expenditure shall be reflected in either a credit or an additional charge in Master Design’s invoice.

8. Variations

8.1 Master Design shall carry out all Variations, provided that any such Variation does not impose an unreasonable burden on Master Design.

8.2 Wherever reasonably practicable any Variation shall be recorded in writing and the estimated cost of the Variation advised to the Client by Master Design, but any failure to do so shall not disqualify Master Design from its entitlement to be paid for the Variation.

8.3 Master Design shall be entitled to charge for and recover all costs that Master Design would not have incurred but for the Variation including the actual cost of labour, materials and other inputs plus the relevant Builder’s Margin.

9. Invoices and Payments

9.1 The Deposit shall be paid by the Client upon signing the Contract. The Deposit shall be held by Master Design and applied towards payment of Master Design’s invoice or invoices.

9.2 Although this Contract contemplates a short-term project and a single invoice after Practical Completion, if the Building Work takes more than two weeks Master Design may issue an invoice on a fortnightly basis for the proportion of the Building Work that has been completed up to the date of the invoice.

9.3 Master Design is entitled to issue the final invoice immediately after Practical Completion, but may issue later invoices if any portion of the Building Work has not yet been invoiced, for example where prior invoices contain errors, or subcontractors or suppliers submit late but valid invoices to Master Design.

9.4 Unless otherwise stated, all charges and costs are exclusive of GST and the Client will pay GST in addition to the charges and costs specified.

9.5 The Client will make any payments due to Master Design within 10 Business Days of the date of the invoice without deduction or set off, in cleared funds, by direct credit to the bank account of Master Design or in such other manner as Master Design shall stipulate from time to time.

9.6 If the Client does not consider that all or any part of the invoiced amount is payable, the Client must, within 10 Business Days of the date of the invoice:

9.6.1 Reply in writing to Master Design stating the amount that the Client considers payable (the undisputed amount), and specifying the reasons why any part of the invoiced amount is disputed, and the method in which the disputed amount has been calculated; and

9.6.2 Pay the undisputed amount.

9.7 If any amount is not paid on the due date for payment under this Contract such late or non-payment will constitute a default under this Contract and the overdue amount will bear interest at the Default Interest Rate calculated on a daily basis from the due date of payment until the date on which the overdue amount is paid.

9.8 If Master Design’s invoice is or is accompanied by a payment claim made under the CCA, then any payment schedule as defined in section 5 of the CCA must be provided to Master Design within 10 Business Days of the payment claim being served on the Client.

9.9 The issue of a Code Compliance Certificate is not a prerequisite to Practical Completion or Master Design’s entitlement to payment of the final or any other invoice.

9.10 Master Design will not be bound by errors or omissions whether in computation or otherwise in any invoice and the same shall be subject to correction.

9.11 The Parties will comply with their obligations (if any) under Subpart 2A of the CCA to the extent that Subpart 2A applies to this Contract.

10. Warranties and Limitations of Liability

10.1 Each party warrants to the other that:

10.1.1 It has obtained all authorisations and has done all things necessary in order to enter into this Contract and to perform its obligations under this Contract;

10.1.2 It is not aware of anything which will, or might reasonably be expected to, prevent or impair it from performing all of its obligations under this Contract, in the manner and at the times contemplated by this Contract; and

10.1.3 All information disclosed to the other party for the purposes of this Contract is, or will be when disclosed, complete and accurate in all material respects and that the use of that information by either party will not breach the intellectual property rights of any third party.

10.2 Save for any warranties referred to in clause 10.1 or any other express warranties provided by Master Design to the Client in writing or at law, all other warranties, assurances and representations, whether expressed or implied, are expressly negated and Master Design shall not be liable for the breach of any such warranties, assurances or representations. Without limiting the foregoing, the Client acknowledges that where the Building Work are performed for business purposes, the provisions of the CGA shall not apply to this Contract.

10.3 In no circumstances will Master Design or any of its officers, employees, agents or sub-contractors be liable to the Client in contract, tort, including, without limitation, negligence or equity or for any breach of a statutory duty or otherwise for any indirect or consequential loss of any kind arising out of this Contract.

10.4 Master Design’s maximum liability to the Client under this Contract is limited to a sum not exceeding the Original Contract Price.

11. Contract Documents

11.1 If any error, omission, mistake or discrepancy in any of the Contract Documents, or any conflict or inconsistency between any of the Contract Documents, results in Master Design incurring costs or suffering a loss which could not reasonably have been anticipated at the time Master Design signed this Contract, those costs or that loss may be charged to the Client by Master Design.

12. No Unreasonable Interference

12.1 The Client shall ensure that at all times neither the Client nor any other contractor or supplier providing goods or services to the Client unreasonably interferes with, inhibits or constrains the performance of Master Design’s obligations or the exercise of Master Design’s rights under this Contract.

12.2 Master Design shall not be responsible for any damage done to the Building Work by the Client or by any other contractor or supplier providing goods or services to the Client.

12.3 Master Design may take whatever steps it deems reasonably necessary to comply with its own obligations under the Health and Safety at Work Act 2015 and all other statutory or regulatory requirements imposed on it in connection with the Building Work. This does not absolve the Client and all other contractors or suppliers providing goods or services to the Client from complying with their own obligations of a similar nature.

13. Insurance

13.1 The Client must arrange contract works insurance in respect of the Building Work unless otherwise agreed by Master Design in writing.

13.2 The amount insured must be at least as much as the Original Contract Price, plus a reasonable allowance for Client-supplied materials, expediting expenses, removal of debris, professional fees, increased costs during construction, increased costs during re-construction, and materials in storage.

13.3 The Client must arrange contract works insurance against loss or damage to the Client’s existing structures made available by the Client to enable the performance of the Building Work, or existing structures adjacent to the Building, and to the Client’s contents. This insurance must be for the full replacement value, and for consequential loss arising from loss or damage to those structures and contents

13.4 Master Design must arrange public liability insurance for loss or damage to any property, or illness, injury or death to any person that arises from the performance of the Building Work.

14. Unprocurable Materials

14.1 If any materials specified are not reasonably procurable, Master Design may substitute other materials of a similar nature and quality after consultation with the Client.

14.2 If the substitution requires an amendment to the plans, specifications or the Building Consent, the Client shall be responsible for obtaining and paying for the amendment, and any time spent by Master Design in assisting the Client with the amendment shall be treated as a Variation.

15. Materials On Site

15.1 Master Design shall retain legal, equitable and beneficial ownership of and title to Master Design Materials even once they have been brought onto the Property by Master Design or Master Design’s subcontractors or suppliers, until the invoice relating to Master Design Materials, and all preceding invoices, have been paid in full.

15.2 Notwithstanding the attachment or intermingling of Master Design Materials to or with any other object or materials, Master Design Materials shall retain their identity as personal property of Master Design for as long as Master Design retains legal, equitable and beneficial ownership of and title to them.

15.3 In the event of the sale of Master Design Materials by the Client, the Client must hold on trust for Master Design that part of the proceeds of the sale that is equal to the amount owing to Master Design at the time of receipt of the proceeds, and immediately pay such proceeds to Master Design on demand.

15.4 Should the Client default in any payment due to Master Design, or breach any of the Client’s other obligations under this Contract, Master Design shall be entitled to enter the Property and remove any of Master Design Materials and to sell any of them in order to recover any monies owing by the Client under this Contract. All costs and expenses incurred by Master Design in doing so shall be paid by the Client on demand or deducted from the proceeds of sale.

16. Alterations to the Building Work

16.1 In the event that any alteration to the Building Work is required:

16.1.1 As a condition of the granting of any Building Consent or other consent or licence or;

16.1.2 As a result of changes to applicable law relating to building; or

16.1.3 By any regulatory agency either before or after the Building Work commences,

the alteration shall be deemed to be a Variation.

17. Practical Completion

17.1 Provided the Client has paid to Master Design the Final Contract Price following Practical Completion and the Client is not otherwise in default of the Client’s obligations

17.2 under this Contract, Master Design shall provide the Client with all information and documentation as may be reasonably required, and take all reasonable and necessary actions, to enable the Client to apply for a Code Compliance Certificate (if applicable).

17.3 The issue of a Code Compliance Certificate under the Building Act 2004 is not a prerequisite to Practical Completion.

18. Rectification of Defects

18.1 Any defect caused by the Building Works which is notified to Master Design in writing within 45 days after Practical Completion shall be rectified by Master Design at Master Design’s expense, within a reasonable time. The notification of any defect must be sufficiently detailed so that Master Design knows precisely what is required to be done.

18.2 In this clause 18 a “defect” means any fault or flaw in the Building Work which is sufficient to constitute a breach of Master Design’s obligations under clause 4.1 or any implied warranties or guarantees, and “rectified” means remedied, re-done, fixed or completed so that the relevant item complies with those obligations. Defects do not include:

18.2.1 Mere cosmetic blemishes, imperfections, or trivial faults or flaws that are within the tolerances normally regarded as acceptable according to common trade practice.

18.2.2 Any failure to achieve standards of finish or detail that are beyond what is required by the Contract Documents (subject to any Variations) and (if applicable) the relevant Building Consent.

18.2.3 Any fault or flaw that is attributable to the acts or omissions of, or materials supplied by, anyone who has contracted directly with the Client.

18.2.4 Any fault or flaw that is attributable to any event or occurrence beyond Master Design’s reasonable control or the acts or omissions of anyone for whom Master Design is not responsible.

18.2.5 Any fault or flaw that is attributable to fair wear and tear, or any failure by the Client to adequately maintain, preserve, protect and care for the Building.

18.2.6 Master Design is both obliged and entitled to rectify any defects in accordance with clause 18.1. The Client must give Master Design a reasonable opportunity to rectify any defects that are notified in accordance with that clause and shall not engage anyone else to do so unless and until a reasonable time has elapsed and the Client has given Master Design at least 20 Business Days’ notice of the Client’s intention to engage someone else.

19. Force Majeure

19.1 In the event that this Contract cannot be performed or the obligations of either party fulfilled due to Force Majeure then performance of that obligation shall be suspended until the Force Majeure ceases to prevent performance of that obligation provided that:

19.1.1 The party claiming Force Majeure shall notify the other in writing as soon as reasonably possible after the occurrence of the Force Majeure including:

(a) The date of commencement of the Force Majeure;

(b) The expected affect or duration of the Force Majeure; and

(c) Where reasonably practicable, the proposal of the party claiming Force Majeure for mitigating the affect or duration of the Force Majeure; and

19.1.2 The party claiming Force Majeure shall endeavour to overcome, and to mitigate the effects of the Force Majeure and to complete its obligations under this Contract on time.

19.2 Notwithstanding clause 19.1, if for any reason it appears that the subsistence of the Force Majeure shall operate to frustrate this Contract, then either party may apply in writing to the other to terminate this Contract. If the other party fails to agree to such termination within fifteen (15) Business Days of receipt of that notice, then the matter shall be referred for resolution in accordance with clause 23.

19.3 If this Contract is terminated under this clause, then the rights of the parties on termination shall be as agreed between the parties or, failing such agreement, shall be referred for resolution in accordance with clause 23.

20. Confidentiality

20.1 Each party will maintain as confidential at all times, and will not at any time, directly or indirectly:

20.1.1 Disclose or permit to be disclosed to any person; or

20.1.2 Use for itself; or

20.1.3 Use to the detriment of the other party,

any Confidential Information, except:

20.1.4 As required by law; or

20.1.5 As is already or becomes public knowledge, otherwise than as a result of a breach by the party disclosing or using that Confidential Information of any provision of this Contract; or

20.1.6 As authorised in writing by the party to which that information relates; or

20.1.7 To the extent reasonably required by this Contract (and, without limiting the effect of this clause, a party may disclose Confidential Information only to such of its officers, employees or professional advisers, on a “need to know” basis, as is reasonably required for the implementation of this Contract provided that any employees have entered into appropriate covenants of confidentiality in respect of the non-disclosure of such Confidential Information).

21. Client’s Default

21.1 If at any time the Client fails to pay any sum owed to Master Design in full by the due date, or any act, omission or default by the Client effectively precludes Master Design from continuing the Building Work or performing or complying with Master Design’s obligations under this Contract, then without prejudice to Master Design’s other rights and remedies, Master Design may suspend the Building Work 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 Building Work is based.

21.2 The Client will pay to Master Design upon demand any costs (including legal costs on a solicitor/client basis), expenses or other sums reasonably incurred by Master Design in enforcing its rights under this Contract, including the fees of debt collection agents, or which result from any default, delay or failure on the part of the Client to comply with this Contract.

22. Termination

22.1 Either party (the Notifying Party) may terminate this Contract immediately by notice in writing to the other party (Other Party) if any of the events in clause 22.2 occur.

22.2 If the Other Party:

22.2.1 Breaches any of the terms of this Contract and fails to remedy such breach within 10 Business Days of receiving written notice from the Notifying Party to do so;

22.2.2 Having committed a breach of any term of this Contract, commits a further breach of that term;

22.2.3 Commits a material breach of this Contract which is not capable of being remedied;

22.2.4 Divulges any Confidential Information, uses for itself or to the detriment of the Notifying Party any Confidential Information or infringes the proprietary rights of the Notifying Party; or

22.2.5 Becomes insolvent, or goes into liquidation whether voluntarily or compulsorily, enters into a scheme of arrangement with creditors or any class of creditor or has a receiver, manager, receiver and manager, statutory manager or administrator appointed over any of its assets.

22.3 Completion on the Building Work and / or the termination of this Contract for any reason shall not affect those rights and obligations of the parties which are intended to survive termination and shall be without prejudice to the rights and obligations of the parties accrued up to and including the date of termination.

22.4 Upon the termination of this Contract for whatever cause Master Design shall be entitled to invoice the Client for all sums due for time spent and materials used in performing the Building Work to the date of termination whether or not the time for payment has arrived and, where this Contract is terminated by Master Design, any and all other costs and expenses reasonably incurred by Master Design as a result of the termination of this Contract and the Client will pay such invoice or invoices within 10 Business Days from the date of the invoice or invoices.

22.5 Upon completion of the Building Work or termination of this Contract for whatever cause, each party shall return to the other party all information, data, materials, records and intellectual property, whether written or otherwise, which is the property of the other party. Master Design shall not be required to return all such things under this clause if the Client has not paid all amounts due under this Contract.

23. Dispute Resolution

23.1 If any dispute arises between the Client and Master Design, the Parties shall resolve the dispute in accordance with this clause 23.

23.2 A dispute shall be deemed to have arisen when the first written communication evidencing the dispute (which may include an electronic transmission such as a fax or e-mail, but not a text message) has been delivered or sent by one party to the other.

23.3 As soon as reasonably practicable after the dispute has arisen, the Parties shall meet together or otherwise communicate with each other and attempt to resolve the dispute in good faith through negotiation.

23.4 After 10 Business Days if the dispute has not been resolved by negotiation, the Parties may agree to attempt to resolve it by mediation. Mediation shall not be compulsory unless both Parties agree to it, and that

Contract may be revoked by either party at any time up until 5 Business Days before the scheduled date for the mediation. The Parties shall share the mediator’s fees and expenses equally and meet their own costs. If the parties cannot agree on a mediator within 5 Business Days of the agreement to mediate, then either party may request the President or relevant nominating officer of the Arbitrators’ & Mediators’ Institute of New Zealand Inc. (“AMINZ”) or of LEADR (NZ) Inc. to select a mediator.

23.5 If the dispute has not been resolved within 20 Business Days of the dispute arising, and there is no agreement to mediate currently in force, and being actively pursued, then the dispute may be resolved by any of the following methods:

23.5.1 Adjudication under the CCA;

23.5.2 Adjudication before a Disputes Tribunal under the Disputes Tribunal Act 1988;

23.5.3 Arbitration under the Arbitration Act 1996; or

23.5.4 Legal proceedings through the appropriate Court.

23.6 If either party elects to have the dispute resolved by adjudication under the CCA, then once either party has served a notice of adjudication complying with the requirements of the CCA, if the other party wishes to serve its own notice of adjudication in respect of the same or a different dispute relating to the Building Work, it must do so within 5 Business Days of service of the first notice, and the claims arising from those notices shall be consolidated, with the same adjudicator appointed to hear each claim.

23.7 If the dispute is referred to arbitration then the arbitration shall be governed by the Arbitration Act 1996.

23.8 Notwithstanding clauses 23.5 to 23.7, nothing in this clause 23 prevents:

23.8.1 Either party from exercising any statutory rights to the extent that those rights cannot be lawfully contracted out of; or

23.8.2 Master Design from commencing and continuing legal proceedings for the enforcement of one or more payment claims under the CCA at any time, provided that once the outcome of the underlying dispute is finally determined, any such legal proceedings must be discontinued, subject only to either party’s entitlement to costs or other incidental relief.

24. Notices

24.1 Any notice required by this Contract shall be in writing and may be given or sent by letter or email to the addresses specified in the Key Terms or such other addresses as are notified to the other party from time to time.

24.2 Any notice given or sent by:

24.2.1 Letter shall be deemed to have been given or sent three Business Days after being deposited in the post;

24.2.2 Email shall be deemed served when the notice enters the information system of the addressee, if this occurs within business hours in the place where the addressee’s principal place of business is located in New Zealand, but, if not then at 9.00am on the following Business Day in such place.

24.3 In any event a notice shall be sufficiently given or served if actually received by a party or a party’s solicitor or if sent to or left at a party’s registered office.

24.4 The Parties are deemed to have unconditionally consented to receive notices by electronic communication pursuant to regulation 10(1)(b) of the Construction Contracts Regulations 2003.

25. Assignment

25.1 Neither party may assign its rights or obligations under this Contract (in whole or in part) to any other person without the prior written consent of the other, such consent not to be unreasonably or arbitrarily withheld or delayed.

25.2 For the avoidance of doubt Master Designs may subcontract any part of the Building Work to third parties under clause 3.2 and may instruct third parties (including debt collection agents) following the Client’s default.

26. Independent Contractor

26.1 Nothing in this Contract creates a relationship between the Parties of employer/employee, principal/agent, a joint venture or partnership.

27. Parties to this Contract

27.1 Reference to a party shall also be deemed to include a party’s respective executors, administrators, successors and permitted assigns.

27.2 Where the Client is made up of two or more individuals or entities then each of them shall be bound jointly and severally by the Client’s obligations under this Contract.

28. Entire Contract

28.1 This Contract constitutes the entire contract between the Parties and supersedes and replaces any previous agreements and arrangements written and verbal between the Parties.

29. Further Assurances

29.1 Each party will do all things and execute all documents reasonably required in order to give effect to the provisions and intent of this Contract.

30. Remedies Cumulative

30.1 The rights, powers and remedies provided in this Contract are cumulative and not exclusive of any rights, powers or remedies provided by law.

31. No Waiver

31.1 Failure by either party on any occasion to enforce or require strict or timely compliance with any provision of this Contract shall not affect or impair that provision in any way or the rights of that party to avail itself of the remedies it may have in respect of any breach of any such provision.

32. Severance

32.1 If any provision of this Contract is invalid and not enforceable in accordance with its terms, other provisions which are self-sustaining and capable of separate enforcement with regard to the invalid provision, are and continue to be valid and enforceable in accordance with their terms.

32.2 Nothing in this Contract shall limit or restrict any statutory rights or remedies available to the Client.

33. Counterpart Execution

33.1 This Contract may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.

34. Amendment to Contract

34.1 This Contract may be varied only by agreement in writing signed by the parties.

35. Governing Law

35.1 This Contract shall be governed by and construed in accordance with the laws of New Zealand and the parties submit to the exclusive jurisdiction of the New Zealand Courts.