1.1 These terms form the basis of the agreement between PBF Ltd Trading as “The Gibstopper” and The Client. If there are inconsistencies between this and any other agreement the terms of this agreement prevail. These terms apply until such time as a new written agreement is signed.
2.1 “Work” means painting, plastering or associated services completed by THE GIBSTOPPER.
2.2 “Client” is the party who enters into an agreement with THE GIBSTOPPER for the provision of work detailed in this proposal. A Client includes any representative of The Client.
2.3 “THE GIBSTOPPER Guarantee” is a guarantee purchased by The Client and must be specified in writing for a fixed duration of time in the proposal provided to The Client.
3. Validity of this proposal
3.1 A proposal is valid only until the specified date on the proposal. If the proposal is not accepted by The Client on or prior to the specified date, THE GIBSTOPPER reserves the right to change the price without notice.
3.2 Where the work is not completed for more than sixty days after acceptance of the proposal THE GIBSTOPPER reserves the right to increase the price for part or all of the work not yet started.
3.3 All amounts are excluding GST unless otherwise specified.
4. Proposal acceptance
4.1 A proposal is accepted and a legally binding agreement entered into where there is a written or verbal acceptance of the proposal by The Client or any representative of The Client. This includes any implied act or verbal instruction to commence work by The Client or representative of The Client. Where a proposal is accepted it is agreed that these terms of trade and all appendages apply to the agreement.
5.1 The Client agrees that any representative they have appointed on site to manage the project, including the builder, project manager, or the homeowner may act of their behalf. Any decisions made by such representative are deemed to be the decision of The Client.
6. Plasterboard design considerations
6.1 The Client is responsible for the overall design of the building and has selected plasterboard as a suitable lining method. The Client warrants that in choosing plasterboard or other lining materials Australian & NZ Standards and manufacturer recommendations related to the product(s) have been complied with in regards to but not limited to the following;
a) Framing design and building tolerances.
b) Selection of building methods and materials
c) Lighting design including window placement and artificial lighting
d) Appropriate colours, finishes and gloss levels
e) Appropriate use of heat sources
f) Adequate ventilation of ceiling cavities
g) Use of control joins on surfaces in excess of 9 meters long
h) Use of control joins on surfaces covering the junctions between floors Where such standard or recommendations in 6.1 have not been complied with THE GIBSTOPPER does not warrant the final appearance or the longevity of the product.
7.0 Movement Induced Stresses
The Client agrees that timber framing or cladding is not dimensionally stable and is subject to movement due to seasonal changes in relative humidity. Such changes in size are not compatible with plasterboard and may result in cracking, peaking or popping of plasterboard or cracking of gaps between various painted or unpainted surfaces.
7.1 The Client agrees that THE GIBSTOPPER is not responsible for the correction of defects due to movement induced stresses and such defects are not included in this contract price. Correction of such defects should be left for at least 12 months post completion of the work to minimise recurrence of such defects. The Client agrees to pay for all such defects at standard rates at the time of repair.
8. Plasterboard Exclusions
8.1 This proposal excludes the following unless specifically stated within this document;
a) Scaffolding if this is required to carry out the work
b) Negative detail, L beads, arch beads, j moulds or Goldline trims, Cove, scotia, square stop, any stopping around beams or bulkheads.
c) Level 5 finish (all new work is allowed as level 4 unless otherwise specified)
d) Wallpaper stripping, rubbish removal, Cleaning of dust from surfaces
9. Painting surfaces in acceptable state
9.1 Client is responsible for approving surfaces to which paint is applied. By instructing THE GIBSTOPPER to proceed with painting work it is deemed that:
a) The area ie; room, level or building is complete and no further changes or additions will be made
b) The surface is in an acceptable condition to The Client for painting with respect to texture and contour.
c) Is in an acceptable state for painting with regards to time exposed and moisture content. The Client understands that sanding and painting will not improve the texture of plasterboard or wood-grain or change the contour of the surface from its original state.
10. Painting Work exclusions
Unless otherwise specified these items are excluded from the proposal;
a) Scaffolding if this is required to carry out the work
b) Removal of demarcation lines (mapping) from previous layers of paint.
c) Skimming, stopping, filling or high build painting of surfaces to improve surface quality or texture.
d) Application of more than the standard two top coats if required to hide dark or contrasting colours or mould lines.
e) Stripping or priming of new weatherboards or windows as they are assumed to have a good quality primer which does not need to be removed or re-primed prior to application of top coats.
f) Gapping between painted and any non painted surface. g) Cleaning of old paint from surfaces.
11. Quality completion checks
11.1 THE GIBSTOPPER and The Client or representative of The Client will carry out quality completion checks at each stage of the work and compile a list of remedial items if required.
11.2 By approving each stage and allowing work to continue The Client accepts the workmanship to that point in its entirety.
11.3 During these checks The Client is deemed to have accepted that all other work such as preparation of surfaces has been completed to a satisfactory standard.
11.4 The Client or any other party shall not dispute the quality of work after such acceptance nor will any further items shall be added to the remedial items list after the first remedial list.
12. Acceptance of the work
Subsequent touch ups found after the quality completion check by The Client or by a third party will be charged for as a variation.
13. Additional painting and damage to work completed by THE GIBSTOPPER
Any additional painting due to incomplete carpentry, damage from other trades or any other person will be charged as a variation in addition to the proposal price.
14. Painting guarantee
14.1 Where a THE GIBSTOPPER Guarantee is purchased the guarantee only applies to the integrity of the paint on the building. THE GIBSTOPPER does not guarantee the water tightness of a building and recommends periodic inspections by an approved building inspector. No claim may be made by The Client under the guarantee unless:
a) The payment schedule has been adhered to a) One housewash is completed by THE GIBSTOPPER annually
b) One seal inspection is be done by THE GIBSTOPPER annually where required for plaster or monolithic cladding
c) The claim is confirmed in writing; and the THE GIBSTOPPER is given a reasonable opportunity to inspect and verify the claim. The liability of THE GIBSTOPPER is limited to the price of the Painting Services provided.
14.2 The guarantee does not cover:
a) Defects caused or contributed to by The Client; or
b) Any attempt to repair the defective workmanship made by any person not authorised by THE GIBSTOPPER to make such repairs.
c) Paint to any new timber that was exposed for more than six weeks prior to painting or was high in moisture content
d) Any paint with an light reflectance value (LVR)of less than 45%
e) Gaps opening between timber weatherboard due to movement The Company excludes all other representations, warranties (whether express or implied) and liabilities whether in contract, tort, under any other legal principle, or otherwise.
15. Preparing the worksite and workflow
15.1 This proposal is based on THE GIBSTOPPER being able to complete the work in a single stage without delay unless otherwise specified in writing in the Proposal. By booking THE GIBSTOPPER to start The Client warrants that;
a) The work is ready prior to the start date and council inspections have been passed
b) There is good access to the area, not impeded by other trades or objects
c) Substrate was compliance with applicable standards
d) The Client must not interfere with or delay the work of THE GIBSTOPPER
e) Where THE GIBSTOPPER has commenced work in an area THE GIBSTOPPER shall not be responsible for work to additional items that were not yet ready or complete at the time the work commenced in that area. Such items shall be considered a variation.
f) No payments may be withheld due to delays on the project. Where work cannot be completed due to delays in the building or any other reasons THE GIBSTOPPER will charge for the work completed as per “16. Reducing the scale of the project or splitting the stages” Such delays will be treated as an overdue payment
15.2 If start date is agreed and The Client fails to provide 48 hours notice that the start time is to be delayed. The workers and supervisors will be charged out as per the “variations clause”.
16. Reducing the scale of the project or splitting the stages
16.1 Where workflow is impeded by breaking the job into smaller parts or stages. Reducing the size of these stages or removing part of the will result in cost increase variation and will be passed on to The Client. Such variations will be charged in one of two ways.
a) The work may be split into stages to be done at agreed times. In this case THE GIBSTOPPER will calculate the value of each stage on a pro-rata basis. Additional value will be added for costs incurred by splitting the work stages. These additional costs will be calculated as a as per the variations clause.
b) The portion of the work that is not ready at the time of commencement may be deducted from the contract as a variation. The value of deducted stage will be calculated by the reduced cost of its labour and materials. Additional value will be added for costs incurred by splitting the work stages. These additional costs will be calculated as a as per the variations clause.
16.2 Where there has been a reduction in the size of the contact as per item b in 16.1 THE GIBSTOPPER may be hired to complete the work at a later date. All costs associated the return of THE GIBSTOPPER will be charged as a variation at the time the work is done.
THE GIBSTOPPER will endeavor to deliver the contracted goods or services within the time frame requested by The Client. THE GIBSTOPPER accepts no responsibility for consequential damages due to delays.
THE GIBSTOPPER reserves the right to a deposit and regular progress payments according to the payment schedule. The Client shall make payment on or before the due date according to the payment schedule. No deductions set off or counter claim shall be made deducted or withheld.
19. Prompt payment of invoices
THE GIBSTOPPER operates a cash business. We do not provide credit to The Client under any circumstances. Payments are due strictly according to the payment schedule. In the event of a disagreement in quantity or quality of the work completed the customer shall pay the balance of the claim for the undisputed work on the due date. In all cases the customer shall inform the company immediately upon receiving the claim if any part of the claim is disputed.
20. Overdue payment and stop work
Where payments are not made in accordance to the payment schedule THE GIBSTOPPER reserves the right to stop work without notice.
21. Costs associated with overdue payments
21.1 Internal and external cost associated with debt collection will be passed on to The Client.
a) Calls, texts and email reminders of overdue accounts $9.00
b) Re-booking fee if a project needs to stopped due to overdue accounts $100
c) Filling of collection proceedings to a third party agency $120
d) Collection fees of 25% incurred from 7 days after due date
e) The cost of any overdue balance will be charged for at 2% per month compounding monthly.
f) Any other cost including but not limited to staff, legal and administration and court costs incurred in preparing a legal action to non-payment of an account.
22. Title of the goods and materials
22.1 Ownership of the goods shall not pass to The Client until full payment is received. Until payment is received The Client will hold the goods on trust for THE GIBSTOPPER as bailee.
22.2 Until the goods are affixed. If The Client fails to make payment in full, THE GIBSTOPPER reserves the right to enter into a building and premises owned, occupied or used by The Client where the goods are situated and take possession of those goods whether or not these are affixed and are part of the building. The Client indemnifies THE GIBSTOPPER from any cost resulting from removal of goods and materials from the building.
23.1 THE GIBSTOPPER is entitled to terminate this contract under the following circumstances;
a) Any insolvency of any kind of The Client.
b) Assignment, transfer or subcontracting any part of this contract by The Client without agreement from THE GIBSTOPPER.
c) Material breach of this agreement.
d) Persistent default under this agreement.
e) Death, personal or mental injury of The Client resulting in him or her becoming incapacitated.
f) Termination of the contract by The Client.
23.2 I the case of default THE GIBSTOPPER will calculate costs according to “Reducing the scale of the project or splitting the stages”
Any forbearance or delay by THE GIBSTOPPER in the enforcement of its rights or powers does not constitute a waiver and any forbearance or delay by The Client in the enforcement of his rights or powers does not constitute a waiver.
25.1 In case of building works The Client shall take out contract works insurance to cover risk of loss, damage or injury to person, persons and or property.
25.1 Where THE GIBSTOPPER are required to work over new surfaces such as new floors, carpet, new kitchens, joinery, furniture, concrete or roof tiles. THE GIBSTOPPER take all care but no responsibility for such damage. The Client is responsible to cover, remove or protect these items if it wishes to have work done on or around them.
25.2 THE GIBSTOPPER reserves the right to make use of our public liability insurance to cover our legal liability for damages caused to property. Our liability is subject to the following terms;
a) THE GIBSTOPPER will not be liable for any claim unless The Client has made payment in full.
b) THE GIBSTOPPER shall not be liable for any consequential, indirect or special damages or loss of any kind of the Customer or any other person.
c) Public liability insurance operates in tandem with the clients insurance policy. A claim would need to be made subject to the terms of our policy with Lumley Insurance. Claims may need to be lodged on your own private or works insurance which is then supported by our public liability.
26. Force Majeure
26.1 If THE GIBSTOPPER for any reason of any matter beyond its control including, without limitation to, any act of God, fire, unavailability and or delay in the supply of equipment, is not reasonably able to perform in whole or in part any obligation under the contract, then THE GIBSTOPPER shall be relieved of that obligation for the period that it is not reasonably able to perform and shall not in any way be liable to The Client in respect of such an inability.
27.1 In the event of a dispute between THE GIBSTOPPER and The Client concerning a matter from the contract, either party has the right to request that the matter be referred to an industry expert recognized by New Zealand Master Painters or The Association of Wall and Ceiling Industries of New Zealand for an independent report. The parties agree that in such a case the industry expert will act as a mediator and may be selected to oversee the project to completion as an intermediary between The Client and THE GIBSTOPPER. The costs of the industry expert are to be equally shared between the parties. In the case where the parties agree not to have a dispute overseen by the industry expert, the parties may jointly agree to terminate the contract. In order to terminate the contract all due invoices must be paid in full. In the event that the parties are unable to resolve the dispute through mediation, the parties shall refer the dispute to the appropriate court or proceed with adjudication pursuant to the Construction Contracts Act 2002. If the matter is referred for adjudication and The Client is the owner of the construction site or the owner is an “associate” of The Client within the meaning of the Construction Contracts Act 2002, THE GIBSTOPPER may request that the adjudicator places a charging order on the title of the property.
Any change to the original contract will be charged as a variation to the contract. A one off variation fee of $47 applies to any variation to the project. This cost covers the consultation and documentation regarding the changes. The fee applies to quoted or charge up variations. THE GIBSTOPPER will claim variations according to our standard rates.
a) Hourly rates of 45-55per hour for painters, stoppers or mangers
b) Vehicle charges and travel time
c) Materials and delivery costs
d) Increased supervision costs For ease of administration the above THE GIBSTOPPER may be combine these as a small job cost.
29. Health and safety
The Client is required to provide a working environment that complies with the Employment Act 1995 and the Health and Safety in the workplace.