CS Roofing Canterbury Limited - Terms & Conditions of Trade

1. Definitions

1.1 “Contract” means the terms and conditions contained herein, together with any quotation, order, invoice or other document or amendments expressed to be supplemental to this Contract.

1.2 “CS Roofing Canterbury” means CS Roofing Canterbury Limited, its successors and assigns.

1.3 “Client” means the person/s, entities or any person acting on behalf of and with the authority of the Client requesting CS Roofing Canterbury to provide the Works as specified in any proposal, quotation, order, invoice or other documentation, and:

(a) if there is more than one Client, is a reference to each Client jointly and severally; and

(b) if the Client is a partnership, it shall bind each partner jointly and severally; and

(d) includes the Client’s executors, administrators, successors and permitted assigns.

1.4 “Works” means all Works (including consultation, manufacturing and/or installation services) or Materials supplied by CS Roofing Canterbury 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).

1.5 “Worksite” means the address nominated by the Client to which the Materials are to be supplied by CS Roofing Canterbury.

1.6 “Intended Use” means a product and the use thereof, for which the product is intended to be, or is reasonably likely to be, associated with the Works.

1.7 “Non-Conforming Building Product” means building products that are regarded as Non-Conforming for an Intended Use if, when associated with a building:

(a) the product is not, or will not be, safe; or

(b) does not, or will not, comply with the relevant regulatory provisions; or

(c) the product does not perform, or is not capable of performing, for the use to the standard it is represented to conform by or for a person in the chain of responsibility for the product.

1.8 “Cookies” means small files which are stored on a user’s computer. They are designed to hold a modest amount of data (including personal information) specific to a particular client and website, and can be accessed either by the web server or the client’s computer. If the Client does not wish to allow Cookies to operate in the background when using CS Roofing Canterbury’s website, then the Client shall have the right to enable / disable the Cookies first by selecting the option to enable / disable provided on the website, prior to making enquiries via the website.

1.9 “Price” means the Price payable (plus any Goods and Services Tax (“GST”) where applicable) for the Works as agreed between CS Roofing Canterbury and the Client in accordance with clause 6 below.

2. Acceptance

2.1 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.

2.2 In the event of any inconsistency between the terms and conditions of this Contract and any other prior document or schedule that the parties have entered into, the terms of this Contract shall prevail.

2.3 Any amendment to the terms and conditions contained in this Contract may only be amended in writing by the consent of both parties.

2.4 The Client acknowledges that the supply of Works on credit shall not take effect until the Client has completed a credit application with CS Roofing Canterbury and it has been approved with a credit limit established for the account.

2.5 In the event that the supply of Works requested exceeds the Client’s credit limit and/or the account exceeds the payment terms, CS Roofing Canterbury reserves the right to refuse delivery.

2.6 Where CS Roofing Canterbury gives any advice, recommendation, information, assistance or service provided by CS Roofing Canterbury in relation to Works supplied is given in good faith to the Client or the Client’s agent and is based on CS Roofing Canterbury’s own knowledge and experience and shall be accepted without liability on the part of CS Roofing Canterbury. Where such advice or recommendations is not acted upon then CS Roofing Canterbury shall require the Client or their agent to authorise commencement of the Works in writing. CS Roofing Canterbury shall not be liable in any way whatsoever for any damages or losses that occur after any subsequent commencement of the Works.

2.7 Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 226 of the Contract and Commercial Law Act 2017 or any other applicable provisions of that Act or any Regulations referred to in that Act.

3. Authorised Representatives

3.1 The Client acknowledges that CS Roofing Canterbury shall (for the duration of the Works) liaise directly with one (1) authorised representative, and that once introduced as such to CS Roofing Canterbury, 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. The Client accepts that they will be solely liable to CS Roofing Canterbury for all additional costs incurred by CS Roofing Canterbury (including CS Roofing Canterbury’s profit margin) in providing any Works or variation/s requested thereto by the Client’s duly authorised representative.

4. Errors and Omissions

4.1 The Client acknowledges and accepts that CS Roofing Canterbury shall, without prejudice, accept no liability in respect of any alleged or actual error(s) and/or omission(s):

(a) resulting from an inadvertent mistake made by CS Roofing Canterbury in the formation and/or administration of this Contract; and/or

(b) contained in/omitted from any literature (hard copy and/or electronic) supplied by CS Roofing Canterbury in respect of the Works.

4.2 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 CS Roofing Canterbury; the Client shall not be entitled to treat this Contract as repudiated nor render it invalid.

5. Change in Control

5.1 The Client shall give CS Roofing Canterbury 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 CS Roofing Canterbury as a result of the Client’s failure to comply with this clause.

6. Price and Payment

6.1 At CS Roofing Canterbury’s sole discretion the Price shall be either:

(a) as indicated on invoices provided by CS Roofing Canterbury to the Client in respect of Works performed or Materials supplied; or

(b) CS Roofing Canterbury’s quoted Price (subject to clause 6.2) which shall be binding upon CS Roofing Canterbury provided that the Client shall accept CS Roofing Canterbury’s quotation in writing within thirty (30) days.

6.2 CS Roofing Canterbury reserves the right to change the Price:

(a) if a variation to the Materials which are to be supplied is requested; or

(b) if a variation to the Works originally scheduled (including any applicable plans or specifications) is requested; or

(c) where additional Works are required due to the discovery of hidden or unidentifiable difficulties (including, but not limited to, poor weather, limitations to accessing the Worksite, obscured building/Worksite defects, incorrect measurements, plans and/or specifications provided by the Client, safety considerations (discovery of asbestos, etc.), prerequisite work by any third party not being completed, lack of required utilities, remedial work required due to existing workmanship being of a poor quality or non-compliant to the building code, upgrade of substrate on removal of existing roof, rotting timber in the roof structure, hidden pipes and wiring in walls, etc.) which are only discovered on commencement of the Works; or

(d) in the event of increases to CS Roofing Canterbury in the cost of Materials, labour or goods (including, but not limited to, overseas transactions that may increase as a consequence of variations in foreign currency rates of exchange and/or international freight and insurance charges and labour) which are beyond CS Roofing Canterbury’s control.

6.3 Variations will be charged for on the basis of CS Roofing Canterbury’s quotation, and will be detailed in writing, and shown as variations on CS Roofing Canterbury’s invoice. The Client shall be required to respond to any variation submitted by CS Roofing Canterbury within ten (10) working days. Failure to do so will entitle CS Roofing Canterbury 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.

6.4 At CS Roofing Canterbury’s sole discretion a non-refundable deposit may be required.

6.5 Time for payment for the Works being of the essence, the Price will be payable by the Client on the date/s determined by CS Roofing Canterbury, which may be:

(a) on or before delivery of the Materials; or

(b) on completion of the Works;

(c) by way of progress payments in accordance with CS Roofing Canterbury’s specified progress payment schedule. Such progress payment claims may include the reasonable value of authorised variations and the value of any Materials delivered to the Worksite but not yet installed;

(d) for certain approved Clients, 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;

(e) the date specified on any invoice or other form as being the date for payment; or

(f) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Client by CS Roofing Canterbury.

6.6 At the agreement of both parties, payment of the Price may be subject to retention by the Client of an amount (hereafter called the “Retention Money”), being a set amount or equal to a percentage of the Price. The Client shall hold the Retention Money for the agreed period following completion of the Works during which time all Works are to be completed and/or all defects are to be remedied. Any Retention Money applicable to this Contract is to be dealt with in accordance with Subpart 2A – sections 18(a) to 18(i) of the Construction Contracts Amendment Act 2015 and as such no Retention Money shall be use other than to remedy defects in the performance of CS Roofing Canterbury’s obligations under the Contract.

6.7 Payment may be made by cash, electronic/on-line banking, or by any other method as agreed to between the Client and CS Roofing Canterbury.

6.8 CS Roofing Canterbury may in its discretion allocate any payment received from the Client towards any invoice that CS Roofing Canterbury determines and may do so at the time of receipt or at any time afterwards. On any default by the Client CS Roofing Canterbury may re-allocate any payments previously received and allocated. In the absence of any payment allocation by CS Roofing Canterbury, payment will be deemed to be allocated in such manner as preserves the maximum value of CS Roofing Canterbury’s Purchase Money Security Interest (as defined in the PPSA) in the Materials.

6.9 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 CS Roofing Canterbury nor to withhold payment of any invoice because part of that invoice is in dispute, unless the request for payment by CS Roofing Canterbury is a claim made under the Construction Contracts Act 2002. Nothing in this clause 6.9 prevents the Client from the ability to dispute any invoice.

6.10 Unless otherwise stated the Price does not include GST. In addition to the Price, the Client must pay to CS Roofing Canterbury an amount equal to any GST CS Roofing Canterbury must pay for any supply by CS Roofing Canterbury under this or any other agreement 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. Provision of the Works

7.1 Subject to clause 7.2 it is CS Roofing Canterbury’s responsibility to ensure that the Works start as soon as it is reasonably possible.

7.2 The Works’ commencement date will be put back and the completion date extended by whatever time is reasonable in the event that CS Roofing Canterbury claims an extension of time (by giving the Client written notice) where completion is delayed by an event beyond CS Roofing Canterbury’s control, including but not limited to any failure by the Client to:

(a) make a selection; or

(b) have the Worksite ready for the Works; or

7.3 At CS Roofing Canterbury’s sole discretion, the cost of delivery is either included in the Price or is in addition to the Price.

7.4 CS Roofing Canterbury 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.

7.5 Any time specified by CS Roofing Canterbury for delivery of the Works is an estimate only and CS Roofing Canterbury 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 CS Roofing Canterbury is unable to supply the Works as agreed solely due to any action or inaction of the Client, then CS Roofing Canterbury 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. Dimensions, Plans and Specifications

8.1 All customary building industry tolerances shall apply to the dimensions and measurements of the Materials unless CS Roofing Canterbury and the Client agree otherwise in writing.

8.2 CS Roofing Canterbury shall be entitled to rely on the accuracy of any plans, specifications and other information provided by the Client

8.3 If the giving of an estimate or quotation for the supply of Materials involves CS Roofing Canterbury estimating measurements and quantities, it shall be the responsibility of the Client to verify the accuracy of CS Roofing Canterbury’s estimated measurements and quantities, before the Client places an order based on such estimate or accepts such quotation.

8.4 Should the Client require any changes to CS Roofing Canterbury’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.

9. Worksite Access and Condition

9.1 CS Roofing Canterbury is not responsible for the removal of rubbish from or clean-up of the building/construction Worksite/s. All rubbish generated by CS Roofing Canterbury will be placed in a designated area appointed by the Client but the responsibility of removal of same is the Client or the Client’s agent, unless otherwise agreed.

9.2 It is the intention of CS Roofing Canterbury and agreed by the Client that:

(a) the Client shall ensure that CS Roofing Canterbury has clear and free access to the Worksite at all times to enable them to undertake the Works (including carrying out Worksite inspections, gain signatures for required documents, and for the delivery and installation of the Materials). CS Roofing Canterbury shall not be liable for any loss or damage to the Worksite (including, without limitation, damage to pathways, driveways and concreted or paved or grassed areas) unless due to the negligence of CS Roofing Canterbury;

(b) it is the Client’s responsibility to provide CS Roofing Canterbury, while at the Worksite, with adequate access to available water, electricity, toilet and washing facilities.

9.3 The Client agrees to be present at the Worksite when and as reasonably requested by CS Roofing Canterbury and its employees, contractors and/or agents.

9.4 Worksite Inductions

(a) in the event the Client requires an employee or sub-contractor of CS Roofing Canterbury to undertake a Worksite induction during working hours, the Client will be liable to pay the hourly charges for that period. If any induction needs to be undertaken prior to the commencement date then the Client shall be liable to pay CS Roofing Canterbury’s standard (and/or overtime, if applicable) hourly labour rate; or

(b) where CS Roofing Canterbury is in control of the Worksite, the Client and/or the Client’s third-party contractors must initially carry out CS Roofing Canterbury’s Health & Safety induction course before access to the Worksite will be granted. Inspection of the Worksite during the course of the Works will be by appointment only and unless otherwise agreed, in such an event the Client and/or third party acting on behalf of the Client must at all times be accompanied by CS Roofing Canterbury.

10. Risk

10.1 If CS Roofing Canterbury retains ownership of the Materials under clause 13 then:

(a) where CS Roofing Canterbury 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 either:

(i) the Client or the Client’s nominated carrier takes possession of the Materials at CS Roofing Canterbury’s address; or

(ii) the Materials are delivered by CS Roofing Canterbury or CS Roofing Canterbury’s nominated carrier to the Client’s nominated delivery address (even if the Client is not present at the address).

(b) where CS Roofing Canterbury is to both supply and install Materials then CS Roofing Canterbury 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.

10.2 Notwithstanding the provisions of clause 10.1 if the Client specifically requests CS Roofing Canterbury to leave Materials outside CS Roofing Canterbury’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.

10.3 The Client warrants that any part of the Worksite where structures are to be installed will be of sound substructure that is able to withstand such installation. If for any reason (including the discovery of latent or unfavourable conditions such as liquefaction residue, inadequate purlins, poor substrate or risk) that CS Roofing Canterbury, or employees of CS Roofing Canterbury, reasonably form the opinion that the Client’s Worksite is not suitable for the installation of Materials to proceed then CS Roofing Canterbury shall be entitled to delay installation of the Materials (in accordance with the provisions of clause

7.2. above) until CS Roofing Canterbury is satisfied that it is safe for the installation to proceed. Where consultation with engineers or other appropriate third parties, all associated and/or additional costs shall be borne by the Client and charged as a variation to the quotation as per clause 6.2. 10.4 All potential waterproofing surfaces are subject to an inspection by CS Roofing Canterbury prior to the commencement of the Works. In the event that the surface is deemed unsuitable, then CS Roofing Canterbury reserves the right to halt the Works until such time as it is agreed between CS Roofing Canterbury and the Client as to the additional cost in further preparation of the surface in order to make it fit for waterproofing. The additional cost shall be charged as a variation to the quotation as per clause

6.2.

10.5 The Client acknowledges that:

(a) CS Roofing Canterbury’s quotation for repairs to existing tile roofs shall be based only on the replacement of damaged tiles and shall not include the replacement of tiles with slight imperfections unless authorised by the Client prior to the commencement of the Works. If the Client requests the replacement of tiles that have slight imperfections but which CS Roofing Canterbury does not deem to be defective or that will affect the integrity of the roof, then this shall be a variation to the original quotation and clause 6.2 will apply; and

(b) no persons other than those authorised or employed by CS Roofing Canterbury are to walk on the treated roof surface for a period of twenty-one (21) days after completion of the job and at no time are any persons permitted to be in the areas of the Works. CS Roofing Canterbury shall not be liable for any loss, damages, injuries, or costs however arising resulting from the Client’s failure to comply with this clause; and

(c) CS Roofing Canterbury accepts no liability for any subsequent loss or damage (including, but not limited to, internal water damage) to the Client’s property which may occur during the cleaning process where such loss or damage is due to pre-existing faults or leaks; and

(d) variations of colour, shade and grain are inherent in all kiln fired products and natural stone. While every effort will be taken by CS Roofing Canterbury to match colour, shade or grain of product, CS Roofing Canterbury shall not be liable for any loss, damages or costs howsoever arising resulting from any variation in colour, shading or grain between batches of product or sale samples and the final product supplied.

10.6 Tiles are not guaranteed against crazing, cracking, chipping or scratching.

11. Client Responsibilities

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

11.2 It is the intention of CS Roofing Canterbury and agreed by the Client that it is the responsibility of the Client to provide and have erected scaffolding to enable the Works to be undertaken (where in CS Roofing Canterbury’s opinion it is deemed necessary). It is also agreed that all scaffolding erected will comply with industry safety standards and that any person erecting the scaffolding shall be suitably qualified to ensure its safe and proper erection and where necessary shall hold a current certificate of competency and/or be fully licensed.

11.3 Prior to CS Roofing Canterbury commencing the Works the Client must advise CS Roofing Canterbury of the precise location of all underground services on the Worksite 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.

11.4 Whilst CS Roofing Canterbury will take all care to avoid damage to any underground services the Client agrees to indemnify CS Roofing Canterbury 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 11.3.

11.5 The Client agrees to remove any furniture, furnishings or personal goods from the vicinity of the Works and agrees that CS Roofing Canterbury shall not be liable for any damage caused to those items through the Clients failure to comply with this clause.

12. Compliance with Laws

12.1 The Client and CS Roofing Canterbury 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 health and safety laws relating or any other relevant safety standards or legislation pertaining to the Works.

12.2 Both parties acknowledge and agree:

(a) to comply with the Building Act 2004 (including any subsequent Amendments) in respect of all workmanship and building products to be supplied during the course of the Works; and

(b) that Works will be provided in accordance with any current relevant Australian/New Zealand Standards applicable.

12.3 Where the Client has supplied products for CS Roofing Canterbury to complete the Works, the Client acknowledges that it accepts responsibility for the suitability of purpose and use for their products and the Intended Use and any faults inherent in those products. However, if in CS Roofing Canterbury’s opinion, it is believed that the materials supplied are Non-Conforming products and will not conform with New Zealand regulations, then CS Roofing Canterbury shall be entitled, without prejudice, to halt the Works until the appropriate conforming products are sourced and all costs associated with such a change to the plans and design will be invoiced in accordance with clause 6.2.

12.4 The Client shall obtain (at the expense of the Client) all licenses and approvals that may be required for the Works.

12.5 Notwithstanding clause 12.1 and pursuant to the Health & Safety at Work Act 2015 (the “HSW Act”), CS Roofing Canterbury agrees at all times to comply with sections 28 and 34 of the “HSW Act” with meeting their obligations for health and safety laws in the workplace regardless of whether they may be the party in control of the Worksite or where they may be acting as a sub-contractor for the Client who has engaged a third party head contractor.

13. Title

13.1 CS Roofing Canterbury and the Client agree that ownership of the Materials shall not pass until:

(a) the Client has paid CS Roofing Canterbury all amounts owing to CS Roofing Canterbury; and

(b) the Client has met all of its other obligations to CS Roofing Canterbury.

13.2 Receipt by CS Roofing Canterbury 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.

13.3 It is further agreed that:

(a) 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 CS Roofing Canterbury on request;

(b) the Client holds the benefit of the Client’s insurance of the Materials on trust for CS Roofing Canterbury and must pay to CS Roofing Canterbury the proceeds of any insurance in the event of the Materials being lost, damaged or destroyed;

(c) the production of these terms and conditions by CS Roofing Canterbury shall be sufficient evidence of CS Roofing Canterbury’s rights to receive the insurance proceeds direct from the insurer without the need for any person dealing with CS Roofing Canterbury to make further enquiries;

(d) 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 CS Roofing Canterbury and must pay or deliver the proceeds to CS Roofing Canterbury on demand;

(e) 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 CS Roofing Canterbury and must sell, dispose of or return the resulting product to CS Roofing Canterbury as it so directs;

(f) unless the Materials have become fixtures the Client irrevocably authorises CS Roofing Canterbury to enter any premises where CS Roofing Canterbury believes the Materials are kept and recover possession of the Materials;

(g) CS Roofing Canterbury may recover possession of any Materials in transit whether or not delivery has occurred;

(h) 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 CS Roofing Canterbury; and

(i) CS Roofing Canterbury 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”)

14.1 Upon assenting to these terms and conditions in writing the Client acknowledges and agrees that:

(a) these terms and conditions constitute a security agreement for the purposes of the PPSA; and

(b) a security interest is taken in all Materials that have previously been supplied and that will be supplied in the future by CS Roofing Canterbury to the Client and the proceeds from such Materials.

14.2 The Client undertakes to:

(a) sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which CS Roofing Canterbury may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register;

(b) indemnify, and upon demand reimburse, CS Roofing Canterbury 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;

(c) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Materials or the proceeds of such Materials in favour of a third party without the prior written consent of CS Roofing Canterbury; and

(d) immediately advise CS Roofing Canterbury 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.

14.3 CS Roofing Canterbury and the Client agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms and conditions.

14.4 The Client waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, and 131 of the PPSA.

14.5 Unless otherwise agreed to in writing by CS Roofing Canterbury, the Client waives its right to receive a verification statement in accordance with section 148 of the PPSA.

14.6 The Client shall unconditionally ratify any actions taken by CS Roofing Canterbury under clauses 14.1 to 14.5.

14.7 Subject to any express provisions to the contrary (including those contained in this clause 14), nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.

15. Security and Charge

15.1 In consideration of CS Roofing Canterbury 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, and the Client grants a security interest in all of its present and after-acquired property, 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). The terms of the charge and security interest are the terms of Memorandum 2018/4344 registered pursuant to s.209 of the Land Transfer Act 2017.

15.2 The Client indemnifies CS Roofing Canterbury from and against all CS Roofing Canterbury’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising CS Roofing Canterbury’s rights under this clause.

15.3 The Client irrevocably appoints CS Roofing Canterbury and each director of CS Roofing Canterbury 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 and Returns

16.1 The Client shall inspect the Materials on delivery and shall within seven (7) days of delivery (time being of the essence) notify CS Roofing Canterbury of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Client shall afford CS Roofing Canterbury 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 CS Roofing Canterbury has agreed in writing that the Client is entitled to reject, CS Roofing Canterbury’s liability is limited to either (at CS Roofing Canterbury’s discretion) replacing the Materials or repairing the Materials. 16.2 Returns will only be accepted provided that:

(a) the Client has complied with the provisions of clause 16.1; and

(b) CS Roofing Canterbury has agreed in writing to accept the return of the Materials; and

(d) CS Roofing Canterbury will not be liable for Materials which have not been stored or used in a proper manner; and

(e) 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.

16.3 Returned Materials may (at CS Roofing Canterbury’s sole discretion), incur restocking and handling fees.

16.4 Subject to clause 16.1, non-stocklist items or Materials made to the Client’s specifications are under no circumstances acceptable for credit or return.

17. Warranties

17.1 Subject to the conditions of warranty set out in clause 17.2 CS Roofing Canterbury warrants that if any defect in any Materials manufactured or Works provided by CS Roofing Canterbury becomes apparent and is reported to CS Roofing Canterbury within five (5) years of the date of delivery (time being of the essence) then CS Roofing Canterbury will either (at CS Roofing Canterbury’s sole discretion) replace or remedy the defect.

17.2 The conditions applicable to the warranty given by clause 17.1 are:

(a) the warranty shall not cover any defect or damage which may be caused or partly caused by or arise through:

(i) failure on the part of the Client to properly maintain any Materials or serviced item; or

(ii) failure on the part of the Client to follow any instructions or guidelines provided by CS Roofing Canterbury; or

(iii) any use of any Materials or serviced item otherwise than for any application specified on a quote or order form; or

(iv) the continued use of any Materials or serviced item after any defect becomes apparent or would have become apparent to a reasonably prudent operator or user; or

(v) fair wear and tear, any accident or act of God.

(b) the warranty shall cease and CS Roofing Canterbury shall thereafter in no circumstances be liable under the terms of the warranty if the workmanship is repaired, altered or overhauled without CS Roofing Canterbury’s consent.

(c) in respect of all claims CS Roofing Canterbury shall not be liable to compensate the Client for any delay in either replacing or remedying the workmanship or in properly assessing the Client’s claim.

17.3 For Materials not manufactured by CS Roofing Canterbury, the warranty shall be the current warranty provided by the manufacturer of the Materials. CS Roofing Canterbury 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.

18. Consumer Guarantees Act 1993

18.1 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 (“CGA”) do not apply to the supply of Materials by CS Roofing Canterbury to the Client.

19. Intellectual Property

19.1 Where CS Roofing Canterbury 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 CS Roofing Canterbury, and shall only be used by the Client at CS Roofing Canterbury’s discretion. Under no circumstances may such designs, drawings and documents be used without the express written approval of CS Roofing Canterbury.

19.2 The Client warrants that all designs, specifications or instructions given to CS Roofing Canterbury will not cause CS Roofing Canterbury to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify CS Roofing Canterbury against any action taken by a third party against CS Roofing Canterbury in respect of any such infringement.

19.3 The Client agrees that CS Roofing Canterbury may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, photographs, drawings, plans or products which CS Roofing Canterbury has created for the Client.

20. Default and Consequences of Default

20.1 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 CS Roofing Canterbury’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.

20.2 If the Client owes CS Roofing Canterbury any money the Client shall indemnify CS Roofing Canterbury from and against all costs and disbursements incurred by CS Roofing Canterbury in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, CS Roofing Canterbury’s collection agency costs, and bank dishonour fees).

20.3 Further to any other rights or remedies CS Roofing Canterbury may have under this Contract, if a Client has made payment to CS Roofing Canterbury, 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 CS Roofing Canterbury under this clause 20, 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.

20.4 Without prejudice to CS Roofing Canterbury’s other remedies at law CS Roofing Canterbury shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to CS Roofing Canterbury shall, whether or not due for payment, become immediately payable if:

(a) any money payable to CS Roofing Canterbury becomes overdue, or in CS Roofing Canterbury’s opinion the Client will be unable to make a payment when it falls due;

(b) the Client has exceeded any applicable credit limit provided by CS Roofing Canterbury;

(c) 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

(d) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.

21. Cancellation

21.1 Without prejudice to any other rights or remedies CS Roofing Canterbury may have, if at any time the Client is in breach of any obligation (including those relating to payment and/or failure to remedy any breach in respect of this Contract within ten (10) working days of receipt by the Client of such notice/s) then CS Roofing Canterbury may suspend or terminate the supply of the Works. CS Roofing Canterbury will not be liable to the Client for any loss or damage the Client suffers because CS Roofing Canterbury has exercised its rights under this clause.

21.2 CS Roofing Canterbury 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 CS Roofing Canterbury shall repay to the Client any sums paid in respect of the Price, less any amounts owing by the Client to CS Roofing Canterbury for Works already performed. CS Roofing Canterbury shall not be liable for any loss or damage whatsoever arising from such cancellation.

21.3 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 CS Roofing Canterbury as a direct result of the cancellation (including, but not limited to, any loss of profits).

21.4 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.

22. Privacy Policy

22.1 All emails, documents, images or other recorded information held or used by CS Roofing Canterbury is personal information as defined and referred to in clause 22.3 and therefore considered confidential. CS Roofing Canterbury acknowledges its obligation in relation to the handling, use, disclosure and processing of personal information pursuant to the Privacy Acts 1993 and 2020 (“the Act”) including Part II of the OECD Guidelines and as set out in the Act. CS Roofing Canterbury acknowledges that in the event it becomes aware of any data breaches and/or disclosure of the Client’s personal information, held by CS Roofing Canterbury that may result in serious harm to the Client, CS Roofing Canterbury will notify the Client in accordance with the Act. Any release of such personal information must be in accordance with the Act and must be approved by the Client by written consent, unless subject to an operation of law.

22.2 Notwithstanding clause 22.1, privacy limitations will extend to CS Roofing Canterbury in respect of Cookies where the Client utilises CS Roofing Canterbury’s website to make enquiries. CS Roofing Canterbury agrees to display reference to such Cookies and/or similar tracking technologies, such as pixels and web beacons (if applicable), such technology allows the collection of personal information such as the Client’s:

(a) IP address, browser, email client type and other similar details;

(b) tracking website usage and traffic; and

(c) reports are available to CS Roofing Canterbury when CS Roofing Canterbury sends an email to the Client, so CS Roofing Canterbury may collect and review that information (“collectively personal information”)

If the Client consents to CS Roofing Canterbury’s use of Cookies on CS Roofing Canterbury’s website and later wishes to withdraw that consent, the Client may manage and control CS Roofing Canterbury’s privacy controls via the Client’s web browser, including removing Cookies by deleting them from the browser history when exiting the site.

22.3 The Client authorises CS Roofing Canterbury or CS Roofing Canterbury’s agent to:

(a) access, collect, retain and use any information about the Client;

(i) (including, name, address, D.O.B, occupation, driver’s license details, electronic contact (email, Facebook or Twitter details), medical insurance details or next of kin and other contact information (where applicable), previous credit applications, credit history or any overdue fines balance information held by the Ministry of Justice) for the purpose of assessing the Client’s creditworthiness; or

(ii) for the purpose of marketing products and services to the Client.

(b) disclose information about the Client, whether collected by CS Roofing Canterbury from the Client directly or obtained by CS Roofing Canterbury 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.

22.4 Where the Client is an individual the authorities under clause 22.3 are authorities or consents for the purposes of the Privacy Act 1993 and 2020.

22.5 The Client shall have the right to request (by e-mail) from CS Roofing Canterbury, a copy of the personal information about the Client retained by CS Roofing Canterbury and the right to request that CS Roofing Canterbury correct any incorrect personal information.

22.6 CS Roofing Canterbury will destroy personal information upon the Client’s request (by e-mail) or if it is no longer required unless it is required in order to fulfil the obligations of this Contract or is required to be maintained and/or stored in accordance with the law.

22.7 The Client can make a privacy complaint by contacting CS Roofing Canterbury via e-mail. CS Roofing Canterbury will respond to that complaint within seven (7) days of receipt and will take all reasonable steps to make a decision as to the complaint within twenty (20) days of receipt of the complaint. In the event that the Client is not satisfied with the resolution provided, the Client can make a complaint to the Privacy Commissioner at http://www.privacy.org.nz.

23. Suspension of Works

23.1 Where the Contract is subject to section 24A of the Construction Contracts Act 2002, the Client hereby expressly acknowledges that:

(a) CS Roofing Canterbury has the right to suspend work within five (5) working days of written notice of its intent to do so if a payment claim is served on the Client, and:

(i) the payment is not paid in full by the due date for payment in accordance with clause 6.5 and/or any subsequent amendments or new legislation and no payment schedule has been given by the Client; or

(ii) a scheduled amount stated in a payment schedule issued by the Client in relation to the payment claim is not paid in full by the due date for its payment; or

(iii) the Client has not complied with an adjudicator’s notice that the Client must pay an amount to CS Roofing Canterbury by a particular date; and

(iv) CS Roofing Canterbury has given written notice to the Client of its intention to suspend the carrying out of construction work under the construction Contract.

(b) if CS Roofing Canterbury suspends work, it:

(i) is not in breach of Contract; and

(ii) is not liable for any loss or damage whatsoever suffered, or alleged to be suffered, by the Client or by any person claiming through the Client; and

(iii) is entitled to an extension of time to complete the Contract; and

(iv) keeps its rights under the Contract including the right to terminate the Contract; and may at any time lift the suspension, even if the amount has not been paid or an adjudicator’s determination has not been complied with.

(i) affect any rights that would otherwise have been available to CS Roofing Canterbury under the Contract and Commercial Law Act 2017; or

(ii) enable the Client to exercise any rights that may otherwise have been available to the Client under that Act as a direct consequence of CS Roofing Canterbury suspending work under this provision;

(d) due to any act or omission by the Client, the Client effectively precludes CS Roofing Canterbury from continuing the Works or performing or complying with CS Roofing Canterbury’s obligations under this Contract, then without prejudice to CS Roofing Canterbury’s other rights and remedies, CS Roofing Canterbury may suspend the Works 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 Works is based. All costs and expenses incurred by CS Roofing Canterbury as a result of such suspension and recommencement shall be payable by the Client as if they were a variation.

23.2 If pursuant to any right conferred by this Contract, CS Roofing Canterbury suspends the Works and the default that led to that suspension continues un-remedied subject to clause 21.1 for at least ten (10) working days, CS Roofing Canterbury shall be entitled to terminate the Contract, in accordance with clause 21.

24. Service of Notices

24.1 Any written notice given under this Contract shall be deemed to have been given and received:

(a) by handing the notice to the other party, in person;

(b) by leaving it at the address of the other party as stated in this Contract;

(d) 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;

(e) if sent by email to the other party’s last known email address.

24.2 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

25.1 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 CS Roofing Canterbury may have notice of the Trust, the Client covenants with CS Roofing Canterbury as follows:

(a) the Contract extends to all rights of indemnity which the Client now or subsequently may have against the Trust and the trust fund;

(b) 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;

(c) the Client will not without consent in writing of CS Roofing Canterbury (CS Roofing Canterbury will not unreasonably withhold consent), cause, permit, or suffer to happen any of the following events:

(i) the removal, replacement or retirement of the Client as trustee of the Trust;

(ii) any alteration to or variation of the terms of the Trust;

(iii) any advancement or distribution of capital of the Trust; or

(iv) any resettlement of the trust property.

26. General

26.1 Any dispute or difference arising as to the interpretation of these terms and conditions or as to any matter arising hereunder, shall be submitted to, and settled by, either adjudication in accordance with section 26 of the Construction Contracts Act 2002 and/or by arbitration in accordance with the Arbitration Act 1996 or its replacement(s).

26.2 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.

26.3 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 courts of Christchurch, New Zealand.

26.4 Subject to the CGA, CS Roofing Canterbury 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 CS Roofing Canterbury of these terms and conditions (alternatively CS Roofing Canterbury’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Works).

26.5 CS Roofing Canterbury may licence and/or assign all or any part of its rights and/or obligations under this Contract without the Client’s consent.

26.6 The Client cannot licence or assign without the written approval of CS Roofing Canterbury.

26.7 CS Roofing Canterbury 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 CS Roofing Canterbury’s sub-contractors without the authority of CS Roofing Canterbury.

26.8 The Client agrees that CS Roofing Canterbury may amend their general terms and conditions for subsequent future contracts with the Client by disclosing such to 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 CS Roofing Canterbury to provide Works to the Client.

26.9 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm, national or global pandemics and/or the implementation of regulation, directions, rules or measures being enforced by Governments or embargo, including, but not limited to, any Government imposed border lockdowns (including, worldwide destination ports), etc., (“Force Majeure”) or other event beyond the reasonable control of either party. This clause does not apply to a failure by the Client to make a payment to CS Roofing Canterbury.

26.10 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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