ConsultDesignBuildInstall

Bayform Engineering - Terms & Conditions of Trade

  1. Definitions
    1. "Bayform" means Bayform Industries (2010) Limited T/A Bayform Engineering, its successors and assigns or any person acting on behalf of and with the authority of Bayform Industries (2010) Limited T/A Bayform Engineering.
    2. "Client" means the person/s or any person acting on behalf of and with the authority of the Client requesting Bayform to provide the Works as specified in any proposal, quotation, order, invoice or other documentation, and:
      1. if there is more than one Client, is a reference to each Client jointly and severally; and
      2. if the Client is a part of a Trust, shall be bound in their capacity as a trustee; and
      3. includes the Client's executors, administrators, successors and permitted assigns.
    3. "Works" means all Works or Materials supplied by Bayform to the Client at the Client's request from time to time (where the context so permits the terms 'Works' or 'Materials' shall be interchangeable for the other).
    4. "Price" means the Price payable (plus any Goods and Services Tax (GST) where applicable) for the Works as agreed between Bayform and the Client in accordance with clause 6 below.

  2. Acceptance
    1. The Client is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Client places an order for or accepts delivery of any Works.
    2. These terms and conditions may only be amended with the consent of both parties in writing and shall prevail to the extent of any inconsistency with any other document or contract between the Client and Bayform.
    3. Any advice, recommendation, information, assistance or service provided by Bayform in relation to Works provided is given in good faith, is based on Bayform's own knowledge and experience and shall be accepted without liability on the part of Bayform and it shall be the responsibility of the Client to confirm the accuracy and reliability of the same in light of the use to which the Client makes or intends to make of the Works.
    4. Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 22 of the Electronic Transactions Act 2002 or any other applicable provisions of that Act or any Regulations referred to in that Act.

  3. Authorised Representatives
    1. Unless otherwise limited as per clause 3.2, the Client agrees that should the Client introduce any third party to Bayform as the Client's duly authorised representative, that once introduced that person shall have the full authority of the Client to order any Works, and/or to request any variation thereto, on the Client's behalf (such authority to continue until all requested Works have been completed, or the Client otherwise notifies Bayform in writing that said person is no longer the Client's duly authorised representative).
    2. In the event that the Client's duly authorised representative, as per clause 3.1, is to have only limited authority to act on the Client's behalf then the Client must specifically and clearly advise Bayform in writing of the parameters of the limited authority granted to their representative.
    3. The Client specifically acknowledges and accepts that they will be solely liable to Bayform for all additional costs incurred by Bayform (including Bayform's profit margin) in providing any Works, or variation/s thereto, requested by the Client's duly authorised representative (subject always to the limitations imposed under clause 3.2 (if any)).

  4. Errors and Omissions
    1. The Client acknowledges and accepts that Bayform shall, without prejudice, accept no liability in respect of any alleged or actual error(s) and/or omission(s):
      1. resulting from an inadvertent mistake made by Bayform in the formation and/or administration of this contract; and/or
      2. contained in/omitted from any literature (hard copy and/or electronic) supplied by Bayform in respect of the Works.
    2. In the event such an error and/or omission occurs in accordance with clause 4.1, and is not attributable to the negligence and/or wilful misconduct of Bayform; the Client shall not be entitled to treat this contract as repudiated nor render it invalid.

  5. Change in Control
    1. The Client shall give Bayform not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client and/or any other change in the Client's details (including but not limited to, changes in the Client's name, address, contact phone or fax number/s, change of trustees or business practice). The Client shall be liable for any loss incurred by Bayform as a result of the Client's failure to comply with this clause.

  6. Price and Payment
    1. At Bayform's sole discretion the Price shall be either:
      1. as indicated on invoices provided by Bayform to the Client in respect of Works performed or Materials supplied; or
      2. Bayform's quoted Price (subject to clause 6.2) which shall be binding upon Bayform provided that the Client shall accept Bayform's quotation in writing within thirty (30) days.
        1. Quotations that are costed from sketches, plans, schedules or specifications provided by the Client are subject to the accuracy of the information provided. Bayform shall not be liable for inaccuracies in quantity, dimension, material or position actually required or used exceeding the quotation. Any costs involved in returning the Materials (including but not limited to disassembly, alteration and transport etc) shall be at the Client's expense.
        2. Any extra Works beyond that specified, or any reduction may be re-quoted and charged as a variation as per clause 6.2.
    2. Bayform reserves the right to change the Price:
      1. if a variation to the Materials which are to be supplied is requested; or
      2. if a variation to the Works originally scheduled (including any applicable plans or specifications) is requested; or
      3. where additional Works are required due to the discovery of hidden or unidentifiable difficulties (including, but not limited to, poor weather conditions, limitations to accessing the site, availability of machinery, safety considerations, prerequisite work by any third party not being completed, asbestos or other hazardous substances, change of design, hidden under-surface barriers such as reinforced steel etc) which are only discovered on commencement of the Works; or
      4. in the event of increases to Bayform in the cost of labour or materials which are beyond Bayform's control.
    3. Variations will be charged for on the basis of Bayform's quotation, and will be detailed in writing, and shown as variations on Bayform's invoice. The Client shall be required to respond to any variation submitted by Bayform within ten (10) working days. Failure to do so will entitle Bayform to add the cost of the variation to the Price. Payment for all variations must be made in full at the time of their completion.
    4. At Bayform's sole discretion a non-refundable deposit may be required for all non account holders.
    5. Time for payment for the Works being of the essence, the Price will be payable by the Client on the date/s determined by Bayform, which may be:
      1. before delivery of the Materials for custom orders; or
      2. on completion of the Works; or
      3. for certain approved Client's, due twenty (20) days following the end of the month in which a statement is posted to the Client's address or address for notices;
      4. the date specified on any invoice or other form as being the date for payment; or
      5. failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Client by Bayform.
    6. Payment may be made by cash, cheque, electronic/on-line banking, credit card (a surcharge may apply per transaction), or by any other method as agreed to between the Client and Bayform.
    7. The Client shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Client by Bayform nor to withhold payment of any invoice because part of that invoice is in dispute.
    8. Unless otherwise stated the Price does not include GST. In addition to the Price, the Client must pay to Bayform an amount equal to any GST Bayform must pay for any supply by Bayform under this or any other contract for the sale of the Materials. The Client must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Client pays the Price. In addition, the Client must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.

  7. Delivery of the Works
    1. Subject to clause 7.2 it is Bayform's responsibility to ensure that the Works start as soon as it is reasonably possible.
    2. The Works' commencement date will be put back and the completion date extended by whatever time is reasonable in the event that Bayform claims an extension of time (by giving the Client written notice) where completion is delayed by an event beyond Bayform's control, including but not limited to any failure by the Client to:
      1. make a selection; or
      2. have the site ready for the Works; or
      3. notify Bayform that the site is ready.
    3. Bayform may deliver the Works by separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.
    4. Any time specified by Bayform for delivery of the Works is an estimate only and Bayform will not be liable for any loss or damage incurred by the Client as a result of delivery being late. However both parties agree that they shall make every endeavour to enable the Works to be supplied at the time and place as was arranged between both parties. In the event that Bayform is unable to supply the Works as agreed solely due to any action or inaction of the Client, then Bayform shall be entitled to charge a reasonable fee for re-supplying the Works at a later time and date, and/or for storage of the Materials.

  8. Risk
    1. If Bayform retains ownership of the Materials under clause 13 then:
      1. where Bayform is supplying Materials only, all risk for the Materials shall immediately pass to the Client on delivery and the Client must insure the Materials on or before delivery. Delivery of the Materials shall be deemed to have taken place immediately at the time that the Client or the Client's nominated carrier takes possession of the Materials at Bayform's address; or
      2. where Bayform is to both supply and install Materials then Bayform shall maintain a contract works insurance policy until the Works are completed. Upon completion of the Works all risk for the Works shall immediately pass to the Client.
    2. At Bayform's sole discretion the cost of delivery is in addition to the Price.
    3. Notwithstanding the provisions of clause 8.1 if the Client specifically requests Bayform to leave Materials outside Bayform's premises for collection or to deliver the Materials to an unattended location then such materials shall always be left at sole risk of the Client and it shall be the Client's responsibility to ensure the Materials are insured adequately or at all. In the event that such Materials are lost, damaged or destroyed then replacement of the Materials shall be at the Client's expense.
    4. The Client warrants that the structure of the building/s or equipment in or upon which Materials are to be installed or erected is sound and will sustain the installation and Works incidental thereto, and Bayform shall not be liable for any claims, demands, losses, damages, costs and expenses howsoever caused or arising should the building/s or equipment be unable to accommodate the installation.
    5. The Client acknowledges that Bayform is only responsible for parts that are replaced/provided by Bayform and does not at any stage accept any liability in respect of components supplied by any other third party that subsequently fail and are found to be the source of the failure, the Client agrees to indemnify Bayform against any loss or damage thereto, or caused thereby, or any part thereof howsoever arising.
    6. Where the Client has supplied materials for Bayform to complete the Works, the Client acknowledges that it accepts responsibility for the suitability of purpose, quality and any faults inherent in those materials. Bayform shall not be responsible for any defects in the Works, any loss or damage howsoever arising from the use of materials supplied by the Client.
    7. The Client acknowledges that Materials supplied may
      1. exhibit variations in shade, colour, texture, surface, finish, markings and may fade or change colour over time; and
      2. expand, contract or distort as a result of exposure to heat, cold, weather; and
      3. mark or stain if exposed to certain substances; and
      4. be damaged or disfigured by impact or scratching.

  9. Dimensions, Plans and Specifications
    1. Bayform shall make every effort to accurately facilitate the plans and specifications originally agreed to by the Client. Nonetheless, the Client accepts that Bayform may make variations or adjustments to the designs in order to comply with specifications of the Building Code of New Zealand. All such variations are to be agreed upon prior to change by both parties and any additional costs has be borne by the Client.
    2. Bayform shall be entitled to rely on the accuracy of any plans, specifications and other information provided by the Client and/or the Client's agent. Bayform accepts no responsibility for faulty or defective workmanship as a consequence of errors or omissions in the design documentation.
    3. If the giving of an estimate or quotation for the supply of Materials involves Bayform estimating measurements and quantities, it shall be the responsibility of the Client to verify the accuracy of Bayform's estimated measurements and quantities, before the Client places an order based on such estimate or accepts such quotation.
    4. Should the Client require any changes to Bayform's estimated measurements and quantities, the Client shall request such changes in writing, in the case of an estimate before placing an order based on that estimate and in the case of a quotation before acceptance of that quotation.
    5. Bayform will not consider any claim in respect of zero construction tolerance. Tolerances may vary between workshop fabrication and iinstallation.

  10. Access
    1. The Client shall ensure that Bayform has clear and free access to the site at all times to enable them to undertake the Works. Bayform shall not be liable for any loss or damage to the site (including, without limitation, damage to pathways, driveways and concreted or paved or grassed areas) unless due to the negligence of Bayform.

  11. Underground Locations
    1. Prior to Bayform commencing the Works the Client must advise Bayform of the precise location of all underground services on the site and clearly mark the same. The underground mains and services the Client must identify include, but are not limited to, electrical services, gas services, sewer services, pumping services, sewer connections, sewer sludge mains, water mains, irrigation pipes, telephone cables, fibre optic cables, oil pumping mains, and any other services that may be on site.
    2. Whilst Bayform will take all care to avoid damage to any underground services the Client agrees to indemnify Bayform in respect of all and any liability claims, loss, damage, costs and fines as a result of damage to services not precisely located and notified as per clause 11.1.

  12. Compliance with Laws
    1. The Client and Bayform shall comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities that may be applicable to the Works, including any WorkSafe guidelines relating to building/construction sites and any other relevant safety standards or legislation.
    2. The Client shall obtain (at the expense of the Client) all licenses and approvals that may be required for the Works

  13. Title
    1. Bayform and the Client agree that ownership of the Materials shall not pass until:
      1. the Client has paid Bayform all amounts owing to Bayform; and
      2. the Client has met all of its other obligations to Bayform.
    2. Receipt by Bayform of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised.
    3. It is further agreed that:
      1. until ownership of the Materials passes to the Client in accordance with clause 13.1 that the Client is only a bailee of the Materials and unless the Materials have become fixtures must return the Materials to Bayform on request.
      2. the Client holds the benefit of the Client's insurance of the Materials on trust for Bayform and must pay to Bayform the proceeds of any insurance in the event of the Materials being lost, damaged or destroyed.
      3. the production of these terms and conditions by Bayform shall be sufficient evidence of Bayform's rights to receive the insurance proceeds direct from the insurer without the need for any person dealing with Bayform to make further enquiries.
      4. the Client must not sell, dispose, or otherwise part with possession of the Materials other than in the ordinary course of business and for market value. If the Client sells, disposes or parts with possession of the Materials then the Client must hold the proceeds of any such act on trust for Bayform and must pay or deliver the proceeds to Bayform on demand.
      5. the Client should not convert or process the Materials or intermix them with other goods but if the Client does so then the Client holds the resulting product on trust for the benefit of Bayform and must sell, dispose of or return the resulting product to Bayform as it so directs.
      6. unless the Materials have become fixtures the Client irrevocably authorises Bayform to enter any premises where Bayform believes the Materials are kept and recover possession of the Materials.
      7. Bayform may recover possession of any Materials in transit whether or not delivery has occurred.
      8. the Client shall not charge or grant an encumbrance over the Materials nor grant nor otherwise give away any interest in the Materials while they remain the property of Bayform.
      9. Bayform may commence proceedings to recover the Price of the Materials sold notwithstanding that ownership of the Materials has not passed to the Client.

  14. Personal Property Securities Act 1999 ("PPSA")
    1. Upon assenting to these terms and conditions in writing the Client acknowledges and agrees that:
      1. these terms and conditions constitute a security agreement for the purposes of the PPSA; and
      2. a security interest is taken in all Materials and/or collateral (account) – being a monetary obligation of the Client to Bayform for Works – that have previously been supplied and that will be supplied in the future by Bayform to the Client.
    2. The Client undertakes to:
      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 Bayform may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register;
      2. indemnify, and upon demand reimburse, Bayform for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register or releasing any Materials charged thereby;
      3. not register, or permit to be registered, a financing statement or a financing change statement in relation to the Materials and/or collateral (account) in favour of a third party without the prior written consent of Bayform; and
      4. immediately advise Bayform of any material change in its business practices of selling Materials which would result in a change in the nature of proceeds derived from such sales.
    3. Bayform and the Client agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms and conditions.
    4. The Client waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA.
    5. Unless otherwise agreed to in writing by Bayform, the Client waives its right to receive a verification statement in accordance with section 148 of the PPSA.
    6. The Client shall unconditionally ratify any actions taken by Bayform under clauses 14.1 to 14.5.

  15. Security and Charge
    1. In consideration of Bayform agreeing to supply the Works, the Client charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Client either now or in the future, to secure the performance by the Client of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
    2. The Client indemnifies Bayform from and against all Bayform's costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising Bayform's rights under this clause.
    3. The Client irrevocably appoints Bayform and each director of Bayform as the Client's true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 15 including, but not limited to, signing any document on the Client's behalf.

  16. Defects In Materials
    1. The Client shall inspect the Materials on delivery and shall within five (5) days of delivery (time being of the essence) notify Bayform of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Client shall afford Bayform an opportunity to inspect the Materials within a reasonable time following delivery if the Client believes the Materials are defective in any way. If the Client shall fail to comply with these provisions the Materials shall be presumed to be free from any defect or damage. For defective Materials, which Bayform has agreed in writing that the Client is entitled to reject, Bayform's liability is limited to either (at Bayform's discretion) replacing the Materials or repairing the Materials.
    2. Materials will not be accepted for return other than in accordance with 16.1 above.

  17. Returns
    1. Returns will only be accepted provided that:
      1. the Client has complied with the provisions of clause 16.1; and
      2. Bayform has agreed in writing to accept the return of the Materials; and
      3. the Materials are returned at the Client's cost within seven (7) days of the delivery date; and
      4. Bayform will not be liable for Materials which have not been stored or used in a proper manner; and
      5. the Materials are returned in the condition in which they were delivered and with all packaging material, brochures and instruction material in as new condition as is reasonably possible in the circumstances.
    2. Bayform will not accept the return of Materials for credit.
    3. Non-stocklist items or Materials made to the Client's specifications are under no circumstances acceptable for credit or return.

  18. Warranties
    1. For Materials not manufactured by Bayform, the warranty shall be the current warranty provided by the manufacturer of the Materials. Bayform shall not be bound by nor be responsible for any term, condition, representation or warranty other than that which is given by the manufacturer of the Materials.

  19. Consumer Guarantees Act 1993
    1. If the Client is acquiring Materials for the purposes of a trade or business, the Client acknowledges that the provisions of the Consumer Guarantees Act 1993 do not apply to the supply of Materials by Bayform to the Client.

  20. Intellectual Property
    1. Where Bayform has designed, drawn, written plans or a schedule of Works, or created any products for the Client, then the copyright in all such designs, drawings, documents, plans, schedules and products shall remain vested in Bayform, and shall only be used by the Client at Bayform's discretion. Under no circumstances may such designs, drawings and documents be used without the express written approval of Bayform.
    2. The Client warrants that all designs, specifications or instructions given to Bayform will not cause Bayform to infringe any patent, registered design or trademark in the execution of the Client's order and the Client agrees to indemnify Bayform against any action taken by a third party against Bayform in respect of any such infringement.

  21. Default and Consequences of Default
    1. 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 Bayform's sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
    2. If the Client owes Bayform any money the Client shall indemnify Bayform from and against all costs and disbursements incurred by Bayform in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, Bayform's collection agency costs, and bank dishonour fees).
    3. Further to any other rights or remedies Bayform may have under this contract, if a Client has made payment to Bayform, and the transaction is subsequently reversed, the Client shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by Bayform under this clause 21, where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Client's obligations under this contract.
    4. Without prejudice to Bayform's other remedies at law Bayform shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to Bayform shall, whether or not due for payment, become immediately payable if:
      1. any money payable to Bayform becomes overdue, or in Bayform's opinion the Client will be unable to make a payment when it falls due;
      2. the Client has exceeded any applicable credit limit provided by Bayform;
      3. the Client becomes insolvent or bankrupt, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
      4. a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.

  22. Cancellation
    1. Without prejudice to any other remedies Bayform may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions Bayform may suspend or terminate the supply of Works to the Client. Bayform will not be liable to the Client for any loss or damage the Client suffers because Bayform has exercised its rights under this clause.
    2. Bayform may cancel any contract to which these terms and conditions apply or cancel delivery of Works at any time before the Works are commenced by giving written notice to the Client. On giving such notice Bayform shall repay to the Client any sums paid in respect of the Price, less any amounts owing by the Client to Bayform for Works already performed. Bayform shall not be liable for any loss or damage whatsoever arising from such cancellation.
    3. In the event that the Client cancels the delivery of Works the Client shall be liable for any and all loss incurred (whether direct or indirect) by Bayform as a direct result of the cancellation (including, but not limited to, any loss of profits).
    4. Cancellation of orders for products made to the Client's specifications, or for non-stocklist items, will definitely not be accepted once production has commenced, or an order has been placed.

  23. Privacy Act 1993
    1. The Client authorises Bayform or Bayform's agent to:
      1. access, collect, retain and use any information about the Client;
        1. (including any overdue fines balance information held by the Ministry of Justice) for the purpose of assessing the Client's creditworthiness; or
        2. for the purpose of marketing products and services to the Client.
      2. disclose information about the Client, whether collected by Bayform from the Client directly or obtained by Bayform 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 the Client.
    2. Where the Client is an individual the authorities under clause 23.1 are authorities or consents for the purposes of the Privacy Act 1993.
    3. The Client shall have the right to request Bayform for a copy of the information about the Client retained by Bayform and the right to request Bayform to correct any incorrect information about the Client held by Bayform.

  24. Service of Notices
    1. Any written notice given under this contract shall be deemed to have been given and received:
      1. by handing the notice to the other party, in person;
      2. by leaving it at the address of the other party as stated in this contract;
      3. by sending it by registered post to the address of the other party as stated in this contract;
      4. if sent by facsimile transmission to the fax number of the other party as stated in this contract (if any), on receipt of confirmation of the transmission;
      5. if sent by email to the other party's last known email address.
    2. Any notice that is posted shall be deemed to have been served, unless the contrary is shown, at the time when by the ordinary course of post, the notice would have been delivered.

  25. Trusts
    1. If the Client at any time upon or subsequent to entering in to the contract is acting in the capacity of trustee of any trust ("Trust") then whether or not Bayform may have notice of the Trust, the Client covenants with Bayform as follows:
      1. the contract extends to all rights of indemnity which the Client now or subsequently may have against the Trust and the trust fund;
      2. the Client has full and complete power and authority under the Trust to enter into the contract and the provisions of the Trust do not purport to exclude or take away the right of indemnity of the Client against the Trust or the trust fund. The Client will not release the right of indemnity or commit any breach of trust or be a party to any other action which might prejudice that right of indemnity.
      3. The Client will not without consent in writing of Bayform (Bayform will not unreasonably withhold consent), cause, permit, or suffer to happen any of the following events;
        1. the removal, replacement or retirement of the Client as trustee of the Trust;
        2. any alteration to or variation of the terms of the Trust;
        3. any advancement or distribution of capital of the Trust; or
        4. any resettlement of the trust property.

  26. Dispute Resolution
    1. All disputes and differences between the Client and Bayform touching and concerning this agreement shall be referred to arbitration under a single arbitrator agreed upon by both parties, or failing agreement, by two arbitrators (one to be appointed by each party) and their umpire (appointed by them prior to arbitration), such arbitration to be carried out in accordance with provisions of the Arbitration Act 1996.

  27. General
    1. The failure by either party to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect that party's right to subsequently enforce that provision. 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.
    2. 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 Tauranga Courts of New Zealand.
    3. Bayform shall be under no liability whatsoever to the Client for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by Bayform of these terms and conditions (alternatively Bayform's liability shall be limited to damages which under no circumstances shall exceed the Price of the Works).
    4. Bayform may licence and/or assign all or any part of its rights and/or obligations under this contract without the Client's consent.
    5. The Client cannot licence or assign without the written approval of Bayform.
    6. Bayform may elect to subcontract out any part of the Works but shall not be relieved from any liability or obligation under this contract by so doing. Furthermore, the Client agrees and understands that they have no authority to give any instruction to any of Bayform's sub- contractors without the authority of Bayform.
    7. The parties agree that for the purposes of the Construction Contracts Act 2002 where Bayform is a commercial provider this contract is not a commercial construction contract or a construction contract whether for work on a commercial or residential property and liability under this contract shall be in no way limited by any contract that the Client may have entered into with a third party in relation to the supply of Materials and/or Works to that third party or the payment by the third party to the Client of any monies whether by progress payments or otherwise.
    8. The Client agrees that Bayform may amend these terms and conditions by notifying the Client in writing. These changes shall be deemed to take effect from the date on which the Client accepts such changes, or otherwise at such time as the Client makes a further request for Bayform to provide Works to the Client.
    9. Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.
    10. Both parties warrant that they have the power to enter into this contract and have obtained all necessary authorisations to allow them to do so, they are not insolvent and that this contract creates binding and valid legal obligations on them.
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