FSM Housing Limited – Terms and Conditions
1. Definitions and Interpretation
In these Terms and Conditions:
- “Contract” means the agreement between FSM Housing Limited (the “Company”) and the Customer for the provision of services, including any Quote or proposal and these Terms and Conditions.
- “Customer” means the individual or entity requesting the services.
- “Services” means the painting, landscaping, plastering, and associated services provided by the Company as detailed in the Quote.
- “Quote” means the written proposal provided by the Company for the provision of Services.
- “Payment” means any amounts owed by the Customer for the Services rendered under the Contract.
2. Services Provided
FSM Housing Limited provides painting, plastering, landscaping, and associated services (the “Services”). The scope of the Services will be specified in the Quote provided by the Company. Any changes to the scope of Services will be subject to a revised Quote.
3. Acceptance of Quote
By accepting a quote issued by FSM Housing Ltd (whether in writing or by conduct), the client agrees to the scope of work, pricing, and the following terms and conditions. A confirmed booking reserves the necessary labour and resources for your project.
4. Booking Commitment
Upon quote acceptance, FSM Housing Ltd allocates specific time slots, staff, and materials to your project. As such, we may decline other work in order to meet your agreed schedule.
5. Cancellation Policy
- Before Work Commences:
If the client cancels the job after quote acceptance but before any work begins, a cancellation fee of 20% of the total quoted amount may apply to cover administrative and preparation costs. - After Work Commences:
If the client cancels or suspends the project after work has started, FSM Housing Ltd reserves the right to charge for:- All work completed up to the cancellation date,
- Any labour or materials committed for the job (including non-refundable purchases or delivery charges),
- A loss of booking fee, equivalent to 50% of the remaining balance, to compensate for the reserved project time and lost opportunity.
6. Dispute Over Price
Once a quote is accepted, the price is binding unless variations are agreed in writing. Disagreement between multiple stakeholders (e.g. business partners, property owners) is not a valid reason for cancellation or withholding payment after work has commenced.
7. Legal Enforcement
In the event of non-payment or wrongful termination of contract, FSM Housing Ltd reserves the right to pursue legal action to recover:
- Outstanding balances,
- Legal and recovery costs,
- Loss of earnings from booked time.
8. Variation of Work
Any change in scope must be requested in writing and may require a revised quote. Verbal changes are not considered valid until confirmed in writing by both parties.
9. Price and Payment Terms
- The price for the Services will be detailed in the Quote and is inclusive of GST unless otherwise stated.
- Payment terms: A holding fee of $1000 is due upon acceptance of the Quote to secure the booking. A deposit of 40% of the quoted price is required one week prior to the scheduled start date of the project. A mid-project payment of 30% will be due at the halfway point of the project. The remaining balance is due upon completion of the Services, unless otherwise agreed in writing.
- Payments are to be made by the due date as specified in the invoice.
- Late payments will incur a late fee of 15% per month or part thereof, calculated on the outstanding amount.
10. Work Schedule
The Company will provide an estimated timeline for the completion of the Services. While the Company will make reasonable efforts to adhere to the schedule, delays due to weather, availability of materials, or other factors beyond the Company’s control may occur. In such cases, the Company will notify the Customer promptly.
11. Health and Safety
The Company is committed to complying with all relevant health and safety laws, including those set out under the New Zealand Health and Safety at Work Act 2015. The Customer agrees to follow any health and safety instructions provided by the Company during the execution of the Services.
12. Insurance
The Company holds appropriate public liability insurance to cover any damages or injuries that may occur during the performance of the Services. The Customer agrees to notify the Company promptly of any incidents that could result in claims.
13. Liability and Indemnity
- The Company’s liability is limited to the total amount paid by the Customer for the Services under the Contract. The Company is not liable for any consequential, indirect, or special damages arising from the provision of the Services.
- The Customer agrees to indemnify and hold harmless the Company against any claims, losses, or damages arising from the Customer’s actions or omissions, including failure to follow instructions or delays in providing access.
14. Intellectual Property
All intellectual property rights relating to the work products, designs, or materials produced during the provision of the Services remain the property of the Company. The Customer is granted a non-transferable, non-exclusive license to use the work for its intended purpose.
15. Dispute Resolution
If any dispute arises under the Contract, the parties agree to first attempt to resolve the dispute through negotiation. If a resolution cannot be reached within 14 days, the dispute will be referred to mediation under the New Zealand Dispute Resolution Centre.
16. Governing Law
This Contract is governed by and construed in accordance with the laws of New Zealand. Any disputes arising from or related to this Contract will be subject to the jurisdiction of the courts in New Zealand.
17. Force Majeure
The Company will not be liable for any delays or failure to perform the Services due to circumstances beyond its control, including but not limited to acts of nature, strikes, accidents, or changes in law.
18. Severability
If any provision of these Terms and Conditions is found to be invalid or unenforceable, the remainder of the provisions will remain in full force and effect.
19. Privacy
The Company will collect and use the Customer’s personal information in accordance with the Privacy Act 2020. The Customer’s information will be used solely for the purposes of fulfilling the Contract and will not be shared with third parties without consent, except where required by law.
20. Warranty and Defects
- The Company offers a warranty of 5 years for workmanship related to the Services, starting from the date of completion. This warranty covers defects in materials and workmanship under normal use.
- The warranty does not cover damage caused by misuse, neglect, accidents, or events outside the control of the Company.
- If any defects are identified within the warranty period, the Customer must notify the Company in writing, and the Company will repair or rectify the defect at no additional cost, subject to the terms of the warranty.
21. Booking and Access to Property
The Customer agrees to provide the Company with reasonable access to the property and work areas necessary to perform the Services. The Customer will also ensure that the worksite is safe, clear of obstructions, and accessible to the Company’s staff during working hours.
22. Entire Agreement
These Terms and Conditions, together with the Quote, constitute the entire agreement between the Company and the Customer. No other oral or written agreements will be binding unless agreed upon in writing by both parties.
23. Force Majeure – Extended
The Company will not be held liable for delays in performance due to force majeure, including but not limited to pandemics, natural disasters, governmental restrictions, or any other circumstances that are beyond the Company’s reasonable control.
About the Guarantee (simplified summary of terms):
- The Guarantee is automatic for Residential or commercial work only on the affected areas that meet the criteria and accepted by FSM Housing, prior to commencement of the work.
- FSM Housing has options for Residential projects & Commercial projects only where Approved Product Lines are going to be used.
- Please note that some products are not included as they either cannot meet the life expectancy (stains etc) clause, or carry warranties relating to the specialised installation (waterproofing etc).
- For the sake of clarity, no Roof Coatings are covered under any of these warranty products.
- For the warranty to become effective confirmation from FSM Housing must be completed, and all work relating to the contract paid for in full.
- The Guarantee is transferable from a builder/developer or client to the next owner of a residence. There is a process to follow to register such a change.
- The Guarantee, once issued, does not absolve the member from their normal responsibilities in respect to standards of workmanship and rectification.
- The Guarantee does not negate consumer rights under the Consumer Guarantees Act 1993
Approval of Application and Acceptance of Guarantee
1. FSM Housing will consider any Application and, in its discretion, may approve or decline the Application. Depending on the circumstances and the time passed after completion of the job until the claim of Guarantee.
2. No Guarantee will be Approved or Accepted where the Application is received by FSM Housing after the time agreed from completion of the work. (3 years for level 3 & 5 years for level 5 on interior projects)
3. The client must notify FSM Housing that the property is in conditions for the benefit of the Guarantee, the Homeowner shall have the benefit of the Guarantee (pursuant to the Contract and Commercial Law Act 2017) subject to the Guarantee Terms and Conditions, as published on www.fsmhousing.co.nz and shall be entitled to enforce the Guarantee in accordance with those terms.
Cancellation of Application or Guarantee
11. Guarantee Applications will be cancelled by FSM Housing when;
11.1. the Client terminates the Contract; or
11.2. the Client has provided any false or misleading information, in the Guarantee Application; or
11.3. the Client has not made payment to FSM Housing in accordance with the Contract;
12. Accepted Guarantees will be cancelled by FSM Housing when;
12.1. the Client undertakes any remedial work including the repair of any Defect, or engages another painter, contractor or themselves to undertake any remedial work without the prior written consent of FSM Housing; or
12.2. the Client has provided any false or misleading information, in either the Guarantee Application Form or the Request for Transfer; or
12.4. the Client has made a false or misleading claim or notification under the Guarantee. Limitation of Liability
13. The Guarantee applies to the contract as provided with this application. Further works at the same dwelling, under a separate contract will require a separate Guarantee.
16. Except as otherwise stated in these Terms and Conditions, the Guarantee shall terminate and be of no further effect at the date of the expiry of three/five years from the termination day.
16.1.Remedial work will not extend this Termination Date.
16.2.Any transfer of the Guarantee will not extend this Termination Date
What is covered by the Guarantee
17. Defect in Materials and Defect in Workmanship cover, that applies from the date of Acceptance up to and including the third/fifth anniversary of that date.
17.1. Defect in Materials means a substantial failure of any materials prematurely, having regard to recognised trade practice. Where there is a manufacturer or supplier warranty or guarantee on materials, the Client must make a claim on such warranty or guarantee first.
17.2. Defect in Workmanship means a Defect from any failure by FSM Housing to comply with:
17.2.1. the Contract; or
17.2.2. regard to relevant trade practices and standards; or
17.2.3. any relevant instruction or recommendation given by the manufacturer or supplier.
17.3.Please note Roof Coatings are Not covered by the guarantee, either for product or application.
The Guarantee Does NOT Cover
18. The Guarantee does not cover and FSM Housing shall not be liable for any:
18.1. matters or claims where the Client is either the Painter or is an Associate of the Painter.
18.2. matters or claims covered by insurance (including home and contents insurance and/or professional indemnity insurance).
18.3. Consequential Damage or Consequential Loss.
18.4. any damage or Defect arising from a problem with the condition of the substrate which was notified by the client and which the client elected not to alter.
18.5. damage or Defect that should have been avoided or resultant from normal wear and tear (including damage or deterioration that could reasonably have been minimised or avoided by the Client by reasonable, regular and thorough inspections and maintenance by the Client).
18.6. damage or Defect beyond the reasonable control of the Painter (including condensation, shrinkage, contraction or expansion of any material, and act of God.)
18.7. matters or claims that are not the Painter’s responsibility (including work or materials outside the Contract OR arranged by and/or paid for directly by the Client).
18.8. any damage or Defect of product that is not an Approved Product.
18.9. unavoidable aesthetic variance (including aesthetic variance due to it being not reasonably practicable to match materials).
18.10. agreed deviations (where any Client and Painter agree to deviate from the Contract, and/or agree to deviate with regard to relevant trade practices and standards for the Works.
18.11. colour consistency of coatings especially roof coatings as these are subject to significant environmental impacts. The consistency of the overall coating is covered only.
18.12. waterproofing or weathertight coatings and membranes are not covered for other than their decorative aspects.
18.13. Roof Coatings, either for product or application
Client to Lodge a Claim
19. FSM Housing is not required to take any steps in relation to any notification or communication from the Client until the Client has, in the reasonable opinion of FSM Housing, taken all reasonable steps to induce the Painter to make good the Defect.
20. Notwithstanding any agreement between the Painter and Client to rectify the Defect, unless the Painter has completed all the remedial work, the Client must notify FSM Housing no later than 30 days after the date on which the Client became aware or should have become aware of this matter; and lodge a claim with FSM Housing on the prescribed FSM Housing claim application form signed by the Client, no later than 14 days after the date on which the Client first notified FSM Housing.
21. Where FSM Housing has been notified but the Client does not lodge a claim within 14 days of notification, FSM Housing shall not be liable for any existing or future claims in regard to the matters notified. Claim Under Defect in Materials, Defect in Workmanship
22. FSM Housing shall assess and/or investigate the lodged claim and where the lodged claim appears valid shall instruct the Painter (if applicable) to make good the Defect within a timeframe or any extension as set by FSM Housing.
24. FSM Housing’s assessment and/or investigation of a lodged claim is for FSM Housing‘s benefit only and is solely for the purpose of determining whether the lodged claim appears to be valid. FSM Housing shall not be liable, whether in contract, tort or otherwise, for any matter relating to or arising out of its investigation, save for its liability under the Guarantee.
25. A lodged claim shall be taken as having been accepted or declined when the acceptance or declinature has been communicated in writing to the Client.
26. As a condition of FSM Housing accepting a claim, the Client shall upon request assign to FSM Housing all of their rights and remedies against any party or person connected with the Works, whether or not a party to the Contract. FSM Housing may take any steps to enforce such rights and remedies. Further, the Client shall give FSM Housing all assistance that it might reasonably require.
27. FSM Housing may (at its discretion) decide whether to repair or replace a Defect. Where the cost to remedy any Defect is, in the opinion of FSM Housing, out of all proportion to the loss or damage to the Client, then FSM Housing may, in its discretion, pay the reasonable value of the repair or replacement to the Client in lieu of FSM Housing remedying the Defect or assisting the Client to select a replacement Painter.
28. The method and manner of any remedial work undertaken under this Guarantee shall be at the discretion of FSM Housing.
Provision of All Relevant Information and Access
29. The Client must allow FSM Housing, its inspectors and the Painter access to inspect the Works and to undertake any agreed remedial work at any reasonable times.
30. The Client and the Painter each are obliged to assist FSM Housing by providing access to and/or copies of all relevant documentation that may be required by FSM Housing to enable to assess and/or meet its obligations under the Guarantee.
31. If any failure by the Client to comply with these Terms and Conditions prejudices the ability of FSM Housing to deal efficiently or economically with a claim or the underlying Defect, then FSM Housing may (at its discretion), decline the claim in whole or in part, even where the claim has previously been accepted.