Terms & Conditions

Formstress

FORMSTRESS STANDARD TERMS AND CONDITIONS
Background
1.

These terms and conditions form part of the contract documents between you (‘the customer’) and Formstress Precast Limited (Formstress). The following documents also form part of the contract:

(a) the signed quotation form (‘the quote’); and

(b) any project specific clarifications attached to (and forming part of) the quote; and

In the event of any conflict between this contract and any other terms agreed between Formstress and the customer, the terms and conditions set out in this contract shall take precedence.

Where a credit account application form has been provided, quotes are only capable of acceptance by the customer if the customer’s credit application has been approved by Formstress, or in the event that the credit application has not been approved, if the customer pays the amount of the quote to Formstress in full at the time of acceptance of the quote.

Quotes
4.

All quotes are valid for 30 days, unless withdrawn prior to this in writing.

All quotes are prepared on the basis that Formstress will receive “off-site” payments for manufactured products temporarily stored in its yard.

The quoted price is exclusive of GST and is based on current conditions and rates of labour and materials. Any fluctuations occurring between the date of quotation and completion of the work may result in a variation of overhead and profit margins which will be calculated using a recognised formula. In the absence of agreement to the contrary NZS 3910: 1998 Appendix A formula will be used.

Quotes are prepared by Formstress on Formstress's standard product details unless otherwise specified.

All quotes allow for:

(a) Goods delivered to the site in accordance with Clauses 15-18 below, but not unloaded;

(b) Standard dimension panel deliveries, where one side of the panel should not exceed 3900mm in dimension and a maximum wall panel weight of 18 tonne (unless otherwise agreed);

(c) “Full” articulated truckloads (minimum 18 tonnes). Any additional loads that may be required as a result of part loads being requested will incur additional freight charges.

(d) Standard greywacke 13 mm, 40 or 45mpa concrete mix;

(e) All product tolerances in accordance with the requirements of NZS 3109 (1997) Table 1.

(f) Accelerated heat curing. The quote does not allow for curing as per NZS3109.

(g) The provision of a PS1 (design) for prestress flooring units, issued following receipt of final payment in full.

(h) The provision of a PS3 (construction) for prestressed and precast units, issued following receipt of final payment in full.

(i) Surface finishes:

i. as per NZS3114 (1987). All formed surfaces of units shall have an ‘off form’ surface finish which may not be completely free form pin holes or mould stain.

ii. not suitable for painting without prior preparation by other;

iii. without “bag-up” of pin holes ready for painting; and with

iv. some colour inconsistency and colour variation in the finished product will occur

(j) Prestressed concrete floor units designed by the company with a camber up to SPAN/300 at an age of 2 months after manufacture. Formstress recommends that customers check the expected camber and allow for the effects of this camber. Consideration of these effects should include any additional amount of concrete required to give the specified minimum topping thickness if the surface does not follow the profile of the unit, also the consequent effect on the floor to ceiling height.

9. All quotes are subject to:

(a) a programme for supply which is agreed between Formstress and the customer at the time of placing the order. Formstress will make all reasonable endeavours to satisfy the construction programme, however prior commitments must take precedence;

(b) receipt of “for construction drawings” by Formstress from the customer as soon as possible after acceptance of the quote;

(c) price fluctuations – in particular reinforcing steel, transport, and supply of raw materials required for manufacture.

10. The quote does not include (unless stated):

(a) The provision of a PS4, which is typically provided by an independent or the consulting Engineer;

(b) Plastic bearing strips, Xypex, Microsilica, Sika 1, Sikadur 31 or similar, zinc spray/galvanising to any part of the prestressed/precast units or reinforcing steel;

(c) Any onsite works or any additional inserts, penetrations or reinforcing unless shown on the drawings listed in the relevant quote.

11. The quote is not an offer of credit. Formstress reserves the right to require the customer to satisfy its credit requirements prior to supplying goods.

Dimensions and Specifications

12. Formstress shall not be responsible for checking site dimensions and shall incur no liability for any loss or damage resulting from any want of accuracy in regard hereto. Where Formstress has issued shop drawings to the customer for checking, two copies will be supplied, one of which must be returned, amended if necessary, marked ‘approved for manufacture’ and signed by the customer.

13. Formstress's specifications and tolerances for precast concrete are generally based on the relevant NZ Standard. The company shall be entitled to make such minor variations in the work as shall be reasonably necessary for the due completion thereof.

Subcontracting

14. Formstress may, at its option, subcontract the whole or any part of the work to recognised specialists in the industry.

Delivery

15. Formstress requires a period of two weeks’ notice of the date on which delivery is required. Formstress will endeavour to deliver the goods within the time requested by the customer. However, no liability will be accepted by Formstress for failure to deliver the goods on a specific date or within a specified time from receipt of the order.

16. Loading or deliveries carried out outside of the hours of 7.30 am and 4.00 pm, Monday to Friday, or on public holidays, must be by special arrangement and may incur an extra charge.

17. Where the quote includes delivery of goods to site, Formstress's obligations shall be discharged if it delivers as near to the site as a safe hard public road permits. In the event that Formstress's transport is requested to move off safe hard public road surfaces to facilitate unloading, the customer shall take full responsibility and pay for additional transport charges that are incurred as a result.

18. Delivery trucks are to be unloaded within 1 hour of agreed arrival on site road frontage. Additional waiting time will be charged at a minimum rate of $145 per hour, depending on vehicle type and transport operator.

Storage

19. Where the customer requires delivery of goods to be withheld such goods shall be held at the customers risk entirely.

20. Where precast goods are required to be stored at the request of the customer and/or through no fault of Formstress, the customer will be charged storage at the rate of $10.00/tonne (plus GST) per week of storage.

Lifting and Installation

21. Where lifting devices are specified in the supply contract documents, Formstress can accept no responsibility for their subsequent behaviour under load.

22. Where lifting devices are not specified and are inserted by Formstress for convenience of handling under factory conditions only, it shall be under no liability for any damage caused by the use of such devices or their failure under load.

23. Formstress takes no responsibility and shall not be liable for a customer’s propping system or other installation activities and any loss resulting therefrom.

Acceptance of Goods

24. Where quotation includes delivery the acceptance of the goods concerned shall be deemed to have taken place, whereupon delivery, a lifting device is attached to the goods and responsibility for the goods shall then pass to the customer.

25. Where the quotation is ex-factory, the acceptance of the goods concerned shall be deemed to have taken place when the unit is loaded on transport under the company’s crane at the company’s yard. Special dunnage or transporting or lifting equipment shall be supplied by the customer.

Ownership of Goods

26. Title of the goods supplied by Formstress shall only pass to the customer on receipt of full payment by Formstress. Until such payment is received the customer will hold the goods on trust for Formstress as bailee.

27. If the customer fails to make payment for the goods, then Formstress or Formstress's agent may enter into buildings and premises owned, occupied or used by the customer where the goods are situated and take possession of the goods up until the time that the goods are affixed.

Payment

28. Formstress reserves the right to require a deposit as set out in the signed quotation form, which will be deducted from the final payment claim.

29. For new customers and/or quotations of $20,000 or less (excluding GST), full payment of the quoted amount is required at least 3 working days before delivery.

30. For all orders under $5,000 (excluding GST) full payment of the quoted amount is required upon acceptance of the quote.

31. In other cases, Formstress shall submit monthly payment claims for any work carried out under the contract, or for mould establishment and units manufactured and stored in our yard or delivered to site. The amount of each payment claim will be calculated as a percentage of the work carried out, up to and including the last day of any calendar month.

32. Payment in full without any retention, deduction, set-off or counterclaim must be made so that it is received no later than the 20th of the month following the date of the payment claim. Formstress may charge the customer interest on the outstanding balance of any overdue account until full payment is made. Interest will be charged at a rate of 2% per month compounding monthly. The customer shall also be liable for solicitor/client, and any other costs incurred by Formstress in attempting to recover payment from the customer.

33. Payment by the due date is a condition precedent to subsequent manufacture and/or deliveries. All overdue debts with your company must be agreed before we are to start production of a new job

34. For the purposes of payment only, where the customer requires delivery of goods to be withheld, the goods shall be deemed to have been be delivered when they are in a deliverable state. Customers shall be liable for storage at $10.00 per tonne per week in addition to handling and other costs incurred as a consequence of their not adhering to the original or mutually amended delivery schedule.

Variations

35. Any variation to the contract must be in writing.

36. If the customer authorises the variation before a price for the variation is agreed Formstress is entitled to a reasonable price for that variation and may claim this in the payment claim(s). Schedule rates cannot be assumed to be the basis of any variation. The valuation of variations is to be fairly assessed having regard to the circumstances pertaining.

37. If the customer requires a price to be agreed before the variation proceeds Formstress shall not undertake work related to the carrying out of the variation work until the price is agreed in writing.

Defects

38. If the customer considers that there is a defect or damage resulting from Formstress's work, the customer must notify Formstress of the defect or damage at the time of delivery so as to allow Formstress to identify, verify and remedy the defect or damage.

39. No contra-charges may be deducted by the customer from the amounts claimed in Formstress's payment claims for defects or damage resulting from Formstress's work, unless Formstress has first been notified and given a reasonable time to remedy the defect.

40. Contra charges must be notified and claimed in the month they occurred.

41. Formstress reserves the right to rectify any agreed manufacturing issue on site or in its yard.

Suspension of Work

42. Formstress shall be entitled to suspend work under the contract in the following circumstances:

(a) Formstress has submitted a payment claim to the customer and:

(i) The claimed amount is not paid in full by the 20th of the next month following the date of the submission of the payment claim to the customer and no payment schedule has been provided by the customer; or

(ii) The customer has submitted a payment schedule indicating a scheduled amount that the customer proposes to pay to Formstress and the scheduled amount is not paid in full by the due date for its payment; or

(iii) The customer has not complied with an adjudicator’s determination that it must pay an amount to Formstress by a certain date; and

(b) Formstress has served the customer with a notice of its intention to suspend work under the contract, stating the ground or grounds on which the proposed suspension is based; and

(c) The claimed amount or scheduled amount referred to above is not paid, or the determination referred to above is not complied with, within five working days of the date of that notice.

43. In the event that Formstress suspends work under Clause 41, Formstress:

(a) Is not in breach of contract; and

(b) Is not liable for any loss or damage suffered by the customer, or by any person claiming through the customer; and

(c) Is entitled to an extension of time to complete the contract, including for any such time as is reasonably required by Formstress to re-establish itself onsite; and

(d) Retains its rights under the contract, including any right to terminate the contract; and

(e) May at any time lift the suspension, even if the amount has not been paid or the determination has not been complied with.

44. Nothing in these terms and conditions is intended to affect any rights that are otherwise available to Formstress under the Contractual Remedies Act 1979; or enable the customer to exercise any rights that may otherwise have been available to it under that Act as a direct consequence of Troake suspending work under this contract.

45. The right to suspend work under a contract ceases when the customer pays the amount due in full or complies with the determination referred to above.

Default

46. Formstress shall be entitled to terminate this contract in the following circumstances:

(a) Any insolvency of any kind of the customer;

(b) Assignment, transfer or sub-contracting any part of this contract by the customer without the consent of Formstress;

(d) Persistent default under this contract;

(e) Death, personal or mental injury of the customer resulting in him/her becoming incapacitated;

(f) Termination of any main contract by the customer.

47. Formstress reserves the right withhold delivery of goods under this contract if the arrangements for payment or the customer’s credit arrangements are considered unsatisfactory.

Waiver

48. Any forbearance or delay by Formstress in the enforcement of its rights or powers shall not constitute a waiver.

Consumer Guarantees Act 1993

49. If any of the goods are acquired by the customer for business purposes, the Consumer Guarantees Act does not apply to the contract in respect of those goods or services.

50. Nothing in these terms and conditions are intended to have the effect of contracting out of the provisions of the Consumer Guarantees Act except to the extent permitted by the Act.

Liability

51. Formstress agrees to maintain public liability insurance for the duration of its work. The customer shall assume all risk of loss, damage or injury to person and/or property that arises from Formstress's materials and/or machinery stored on site, whilst Formstress or its subcontractors are not on site. The customer shall insure against loss, damage or injury to any person in, on or near the equipment howsoever caused.

Force Majeure

52. If Formstress by 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 unable to perform in whole or in part any obligation under the contract, Formstress 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 customer in respect of such inability.

Disputes

53. In the event of a dispute between Formstress and the customer concerning a matter arising from the contract, the parties agree that either of them shall have the right to request that the matter is referred to mediation. Formstress and the customer shall endeavour to agree on a mediator. In the event that the parties are unable to resolve their dispute by mediation, the parties shall refer the dispute to the appropriate Court or proceed to adjudication pursuant to the Construction Contracts Act 2002. If the matter is referred to adjudication and the customer is the owner of the construction site or the owner is an ‘associate’ of the customer within the meaning of the Construction Contracts Act 2002, Formstress may request the adjudicator place a charging order on the title of the property.

Review of Terms

54. Formstress reserves the right to amend its standard terms and conditions any time, and from time to time. The change in the terms and conditions will take effect from the date on which Formstress gives notice to the customer of such change.