Terms of Trade

1.1    "The Supplier", "we", "our" and "us" means Paton Roofing Services Limited, its successors and assigns or any person acting on behalf of and with the authority of Paton Roofing Services Limited.
1.2    "The Client", "you" and "your" means the person/s ordering the Works as specified in any invoice, document or order, and if there is more than one Client is a reference to each Client jointly and severally.
1.3    "The Party" or "the Parties" in this Agreement shall mean the Client and the Supplier together.
1.4   "Works" means all works, services and labour provided by us to the you at your request from time to time (where the context so permits the terms ‘Works’ or 'Materials' shall be interchangeable for the other).
1.5   "Materials" means all materials and products provided by us to you at your request from time to time (where the context so permits the terms ‘Works’ or ‘Materials’ shall be interchangeable for the other).
1.6   "Price" means the Price payable for the Works as agreed between the parties in accordance with clause 5 below.
1.7   "Variation" means Works additional to the Scope of Work as requested by you or your duly authorised representative from time to time in writing.
1.8   "Scope of Work" means the schedule of Works and/or Materials requested by you and agreed to by us, as detailed in our Quote to you.
1.9   "Quote" means the document that includes the Scope of Works and Price for the same.
1.10   "Worksite" means the location where the Works and Materials are provided by us to you, as nominated by you.
1.11   "Business Practice" means the organisational processes and management practices undertaken by either Party in the usual course of running their business.
1.12   "Progress Payment Claim" means our claim for progress payment as noted on our invoice to you, and as defined in the Construction Contracts Act 2002.

2.1    You are taken to have accepted and be immediately bound, jointly and severally, by these terms and conditions if you place an order for or accept provision of any Works.
2.2    These terms and conditions may only be amended with your consent in writing and shall prevail to the extent of any inconsistency with any other document or agreement between you and us.
2.3    These terms and conditions shall be read in conjunction with our Hire Form where relevant, and:
2.3.1    where the context so permits, the terms ‘Works’ or ‘Materials’ shall include any supply of Equipment, as defined therein; and
2.3.2    in conjunction with our Quote, and to the extent that there are any inconsistencies between the two documents then the terms and conditions contained therein shall prevail.

3.1    Unless otherwise limited as per clause 3.2 you agree that should you introduce any third party to us as your duly authorised representative, that once introduced that person shall have your full authority to order any Materials or Services on your behalf and/or to request any Variation to the Works on your behalf (such authority to continue until all requested Works have been completed or you otherwise notify us in writing that said person is no longer your duly authorised representative).
3.2    In the event that your duly authorised representative as per clause 3.1 is to have only limited authority to act on your behalf then you must specifically and clearly advise us in writing of the parameters of the limited authority granted to your representative. 
3.3    You specifically acknowledge and accept that you will be solely liable to us for all additional costs incurred by us (including any profit margin calculated in accordance with our usual Business Practice) in providing any Works, Materials or Variations requested by your duly authorised representative (subject always to the limitations imposed under clause 3.2 (if any)).

4.1    You shall give us not less than fourteen (14) days prior written notice of: any proposed change of ownership or effective control where you are a non-natural person; and/or any other change in your details, including but not limited to changes in your name, address, contact phone or fax number/s.
4.2    You shall be liable for any loss incurred by us as a result of your failure to comply with this clause.

5.1    At our sole discretion the Price shall be either:
5.1.1    as indicated on invoices provided by us to you in respect of Works performed or Materials supplied; or
5.1.2    the Price on our Quote (subject to clause 5.2) which shall be binding upon us provided that you shall accept our Quote in writing within twenty-eight (28) days of the date of the Quote.
5.2    We reserve the right to change the Price:
5.2.1    if a Variation to the Materials which are to be supplied is requested; or
5.2.2    if a variation to the Works originally scheduled (including any applicable plans or specifications) is requested; or
5.2.3    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, obscured building defects, safety considerations, prerequisite work by any third party not being completed, error in design, or hidden pipes and wiring) which are only discovered on commencement of or during the Works; or
5.2.4    in the event of increases to us in the cost of labour or Materials, which are beyond our control.
5.3    At our sole discretion, a deposit may be required. Any deposit taken shall be applied against our first invoice(s).
5.4    Time for payment for the Works being of the essence, the Price will be payable by you on the date/s determined by us, which may be:
5.4.1    on completion of the Works;
5.4.2    by way of progress payments in accordance with our Progress Payment Claims. Such Progress Payment Claims may include the reasonable value of authorised Variations and the value of any Materials delivered to the site but not yet installed; or
5.4.3    with our approval, twenty (20) days following the end of the month in which a statement is posted to your address or address for notices;
5.4.4    the date specified on our invoice or our Quote as being the date for payment; or
5.4.5    failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to you by us.
5.5    Payment must be made in cleared funds by bank cheque, electronic/on-line banking, or by any other method stipulated by us.
5.6    Unless otherwise stated the Price does not include GST. In addition to the Price you must pay to us an amount equal to any GST we must pay for any provision of Works by us under this or any other agreement. You must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as you pay the Price. In addition you 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.

6.1    Subject to clause 6.2 it is your responsibility to ensure that the Works start as soon as it is reasonably possible.
6.2    The Works commencement date will be put back and/or the completion date extended by whatever time is reasonable in the event that we claim an extension of time (by giving you written notice) where completion is delayed by an event beyond our control, including but not limited to inclement weather, strikes or act of God and any failure by you to:
6.2.1    make a selection of Materials; or
6.2.2    have the Worksite ready for the Works; or
6.2.3    notify us that the Worksite is ready.
6.3    We may provide the Works by separate instalments.
6.4    Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.
6.5    Any time specified by us for provision of the Works is an estimate only and we will not be liable for any loss or damage incurred by you as a result of any delay.
6.6    We agree that we shall make every endeavour to enable the Works to be provided at the time and place as stipulated by us. In the event that we are unable to provide the Works as agreed solely due to any action or inaction of yours then we shall be entitled to charge a reasonable fee for re-providing the Works at a later time and date.
6.7    All Works will be undertaken in accordance with current standards as approved and stipulated by the appropriate regulatory body, and/or the manufacturer of the Materials.

7.1    You shall ensure that we have clear and free access to the Worksite at all times to enable us to undertake the Works. We 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) caused by us having access to the Worksite.
7.1    It is your responsibility to ensure that access is suitable to accept the weight of laden trucks. You agree to indemnify us against all costs incurred by us in recovering such vehicles in the event they become bogged or otherwise immovable.

8.1    Notwithstanding that we may retain ownership of the Materials under clause 11:
8.1.1    where we are supplying Materials only, all risk in respect of the Materials shall immediately pass to you on delivery and you must insure the Materials on or before delivery.
8.1.2    At our sole discretion the cost of delivery is included in the Price.
8.1.3    Delivery of the Materials shall be deemed to have taken place immediately at the time that the Materials are delivered by us or our nominated carrier to your nominated delivery address (even if you are not present at the address).
8.1.4    where we are to both supply and install Materials then we shall maintain a Contract Works Insurance policy until the Works are completed. Such Contract Works Insurance shall be solely for Works and Materials provided by us.
8.2    Upon completion of the Works all risk for the Works shall immediately pass to you.
8.3    You must take delivery by receipt or collection of the Materials whenever they are tendered for delivery. In the event that you are unable to take delivery of the Materials as arranged then we shall be entitled to charge a reasonable fee for redelivery and/or storage.
8.4    Notwithstanding the provisions of clause 8.1 if you specifically request us to leave Materials outside our premises for collection or to deliver the Materials to an unattended location then such materials shall always be left at your sole risk and it shall be your 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 your expense.
8.5    You warrant that the structure of the premises or equipment in or upon which the Materials are to be installed or erected is sound and will sustain the installation and Works incidental thereto, and we shall not be liable for any claims, demands, losses, damages, costs and expenses howsoever caused or arising should the premises or equipment be unable to accommodate the installation.
8.6    You acknowledge that Materials supplied may exhibit variations in shade, colour, texture, surface and finish, and may fade or change colour over time. We will make every effort to match batches of Materials supplied in order to minimise such variations but shall not be liable in any way whatsoever where such variations occur. 
8.7    Any advice, recommendation, information, assistance or service provided by us in relation to Works is given in good faith, is based on our own knowledge and experience and shall be accepted by you without liability on our part, and it shall be your responsibility to confirm the accuracy and reliability of the same in light of the use to which you make or intend to make of the Works. 8.8    We, our directors, employees and consultants, believe that the information provided to you is correct and that any calculations, estimates, conclusions or recommendations contained in any Quote, estimate or similar document are reasonably held or made as at the time of providing the information. 
8.9    No warranty is made as the accuracy or reliability of any calculations, estimates, conclusions or recommendation or other information supplied by us and, to the maximum extent permitted by law, we disclaim all liability and responsibility for any direct or indirect loss or damage which may be suffered by you through relying on such information. 
8.10    Notwithstanding Clauses 8.7 to 8.9 you indemnify us from any claim in relation to any direct or indirect loss or damage caused by your reliance upon any professional or expert advice or recommendations provided by us to you. To the extent that any liability can be attributed to us it shall be limited to an amount the sum of which is equivalent to the value of the Works on the relevant Quote.

9.1    You agree with us that it is your responsibility to ensure there are no obstructions on site near the Worksite and to provide, and have erected, scaffolding on any area above three (3) metres off ground level, to enable the Works to be undertaken. 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.
9.2    You acknowledge that in the event asbestos or any other toxic substances are discovered at the worksite that it is your responsibility to ensure the safe removal of the same. You further agree to indemnify us against any costs incurred by us as a consequence of such discovery, including consequential losses and losses resulting from any delays in providing the Works.
9.3    Under no circumstances will we handle the removal of asbestos or toxic substances.
9.4    You shall be responsible for the removal of rubbish from or clean-up of the Worksite.
9.5    You will supply temporary lighting, toilet, eating and first aid facilities if required.
9.6    You will advise the location of all services (including without limitation, water, gas, electricity, telephone or any other underground service) to us prior to commencement of the Works.
9.7    Although we hold Public Liability Insurance and Contract Works Insurance for the Works to be provided under this agreement, it is your responsibility to ensure that the Worksite is fully insured for your risks for the duration of the Works. Our insurance does not extend to cover works provided by you or other trades.

10.1    In the event that you give us information relating to measurements and quantities of the Materials required it is your responsibility to verify the accuracy of the measurements and quantities, before you place or we place an order based on these measurements and quantities.
10.2    We accept no responsibility for any loss, damages, or costs however resulting from your failure to comply with this clause.
10.3    We shall not be liable for any errors in the Works which are caused by design fault, by incorrect or inaccurate data being supplied by you or by any difference between the specification in the Scope of Works provided by you and the actual Works as completed. Any additional Works which may be required to rectify such errors shall be your responsibility and shall be charged as a Variation in accordance with clause 5.2.

11.1    You acknowledge and agree that ownership of the Materials shall not pass, until:
11.1.1    You have paid us all amounts owing for the Works involving the Materials; and
11.1.2    You have met all other obligations due by you to us in respect of all contracts between us and you.
11.2    Receipt by us of any form of payment other than cleared funds in our bank account, shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised and until then our ownership or rights in respect of the Works, and this agreement, shall continue.
11.3    It is further agreed that:
11.3.1    until ownership of the Materials passes to you in accordance with clause 11.1 that you are only a bailee of the Materials and unless the Materials have become fixtures you must return the Materials to us on request;
11.3.2    You hold the benefit of your insurance of the Materials on trust for us and must pay to us the proceeds of any insurance in the event of the Materials being lost, damaged or destroyed;
11.3.3    the production of these terms and conditions by us shall be sufficient evidence of our rights to receive the insurance proceeds direct from the insurer without the need for any person dealing with us to make further enquiries;
11.3.4    You 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 you sell, dispose or part with possession of the Materials then you must hold the proceeds of any such disposition on trust for us and must pay or deliver the proceeds to us on demand;
11.3.5    You should not convert or process the Materials or intermix them with other goods but if you do so then you hold the resulting product on trust for the benefit of us and must sell, dispose of or return the resulting product to us as we so direct;
11.3.6    unless the Materials have become fixtures you irrevocably authorise us to enter any premises where we believe the Materials are kept and recover possession of the Materials;
11.3.7    We may recover possession of any Materials in transit whether or not delivery has occurred;
11.3.8    You shall not charge or grant an encumbrance over the Materials nor grant nor otherwise give away any interest in the Materials while they remain our property;
11.3.9    We may commence proceedings to recover the Price notwithstanding that ownership of the Materials has not passed to you.

12.1    In consideration of us agreeing to provide the Works, you and the Guarantors charge by way of mortgage all of your rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by you and or the Guarantors either now or in the future, to secure the performance by you of your obligations under these terms and conditions (including, but not limited to, the payment of any money).
12.2    You and the Guarantors indemnify us from and against all our costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising our rights under this clause.
12.3    You and the Guarantors irrevocably appoint us and each of our directors as your true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 12 including, but not limited to, signing any document on your behalf.

13.1    You hereby disclaim any right to rescind, or cancel any contract with us or to sue for damages or to claim restitution arising out of any inadvertent misrepresentation made to you by us and you acknowledge that the Works are contracted for and purchased relying solely upon your skill and judgment.

14.1    You shall inspect the Works on completion and shall within seven (7) days of such time (time being of the essence) notify us of any alleged defect, error or omission, shortage in quantity, damage or failure to comply with the Scope of Works or Quote. You shall afford us an opportunity to inspect the Works within a reasonable time following such notification if you believe the Works are defective in any way. If you fail to comply with these provisions the Works shall be presumed to be free from any defect or damage. 
14.2    For defective Works, which we have agreed in writing that you are entitled to reject, our liability is limited to either (at our discretion) rectifying or reproviding the Works.
14.3    Materials will not be accepted for return other than in accordance with 15.3 below.

15.1    Subject to the conditions of warranty set out in clause 15.2, and the limitation in clause 15.3 we warrant that if any defect in our workmanship becomes apparent and is reported to us within five (5) years of the date of completion (time being of the essence) then we will either (at our sole discretion) replace or remedy the workmanship. 15.2    The conditions applicable to the warranty given by clause 15.1 are:
15.2.1    the warranty shall not cover any defect or damage which may be caused or partly caused by or arise through:
15.2.1.1    your failure to properly maintain the Works; or
15.2.1.2    your failure to follow any instructions or guidelines provided by us; or 15.2.1.3    any use of the Works otherwise than for any application specified on the our Quote; or
15.2.1.4    the continued use of the Works after any defect becomes apparent or would have become apparent to a reasonably prudent owner; or
15.2.1.5    fair wear and tear or any accident or act of God.
15.2.2    the warranty shall cease and we shall thereafter in no circumstances be liable under the terms of the warranty if the workmanship is repaired, altered or overhauled without our consent.
15.2.3    in respect of all claims we shall not be liable to compensate you for any delay in either replacing or remedying the workmanship or in properly assessing your claim.
15.3    The warranty for Materials shall be the current warranty provided by the manufacturer of the Materials. We shall not be bound by nor be responsible for any term, condition, representation or warranty in respect of the Materials other than that which is given by the manufacturer of the Materials.

16.1    Where we have designed, drawn, written plans or a schedule in a Scope of Works, or created any Materials for you, then the copyright in all such designs, drawings, documents, plans, schedules and Materials shall remain vested in us, and shall only be used by you with our written permission.
16.2    You warrant that all designs, specifications or instructions given to us will not cause us to infringe any patent, registered design or trademark in the execution of your order and you agree to indemnify us against any action taken by a third party against us in respect of any such infringement. 16.3    You agree that we may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings, plans or digital media of the Works supplied by us to you, or Materials which we have created for you.

17.1    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 our sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
17.2    If you owe us any money you shall indemnify us from and against all costs and disbursements incurred by us in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, collection agency costs, and bank dishonour fees).
17.3    Without prejudice to any other remedies we may have, if at any time you are in breach of any obligation (including those relating to payment) under these terms and conditions we may suspend or terminate the provision of Works to you. We will not be liable to you for any loss or damage you suffer because we have exercised our rights under this clause.
17.4    Without prejudice to our other remedies at law we shall be entitled to cancel all or any part of any order of yours which remains unfulfilled and all amounts owing to us shall, whether or not due for payment, become immediately payable if:
17.4.1    any money payable to us becomes overdue, or in our opinion you will be unable to make a payment when it falls due;
17.4.2    You become insolvent or bankrupt, convene a meeting with your creditors or propose to or enter into an arrangement with creditors, or make an assignment for the benefit of your creditors; or a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of you or any asset of yours.

18.1    We may cancel any contract to which these terms and conditions apply or cancel the provision of the Works at any time before the Works have commenced by giving written notice to you. On giving such notice we shall repay to you any sums paid in respect of the Price. We shall not be liable for any loss or damage whatsoever arising from such cancellation.
18.2    Cancellation by you of orders for Materials made to your specifications, or for non-stocklist items, will not be accepted once production has commenced, or an order has been placed.

19.1    We will endeavour, but will not be required to resolve all disputes between you and us amicably provided that if we cannot resolve a dispute, then no proceedings will be issued in Court in respect of the dispute without the dispute first being mediated by a single mediator appointed by agreement between the parties and failing agreement and on the application of one of them, by the Chief Executive Officer for the time being of the Resolution Institute of New Zealand.

20.1    The parties 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 occupational health and safety laws relating to building/construction sites and any other relevant safety standards or legislation.
20.2    The relevant legislation includes but is not limited to the Construction Contracts Act 2002 and the Building Act 2004. Specifically, the Works shall comply with the external moisture weathertightness provisions of clause E2 of the Building Code.
20.3    You shall obtain (at your expense) all licenses, consents and approvals that may be required for the Works.

21.1    You acknowledge and agree that these terms and conditions together with our Quote constitute a security agreement for the purposes of the PPSA.
21.2    You undertake to:
21.2.1    sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which we may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register;
21.2.2    indemnify, and upon demand reimburse, us for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register or releasing any registration made on the said Register;
21.2.3    not register a financing change statement or a change demand without our prior written consent.
21.3    We and you agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms and conditions.
21.4    You waive your rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA.
21.5    Unless otherwise agreed to in writing by us, you waive your right to receive a verification statement in accordance with section 148 of the PPSA.
21.5    You unconditionally ratify any actions taken by us under clauses 21.1 to 21.5.

22.1    If you are acquiring Works for the purposes of a trade or business, you acknowledge that the provisions of the Consumer Guarantees Act 1993 do not apply to the provision of the Works by us to you.

23.1    The Client hereby expressly acknowledges that:
23.1    You authorise us or our agent to:
23.1.1    access, collect, retain and use any information about you;
23.1.1.1    (including any overdue fines balance information held by the Ministry of Justice) for the purpose of assessing your creditworthiness; or
23.1.1.2    for the purpose of marketing products and services to you.
23.1.2    disclose information about you, whether collected by us from you directly or obtained by us 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 you.
23.2    Where you are a natural person the authorities under clause 23.1 are authorities or consents for the purposes of the Privacy Act 1993.
23.3    You shall have the right to request a copy of any information about you retained by us and the right to request us to correct any incorrect information about you held by us.

24.1    You hereby expressly acknowledge that:
24.1.1    We have the right to suspend the Works within five (5) working days of written notice of our intent to do so if a payment claim is served on you, and;  
24.1.1.1    the payment claim is not paid in full by the due date for payment and no payment schedule has been given by you; or
24.1.1.2    a scheduled amount stated in a payment schedule issued by you in relation to the payment claim is not paid in full by the due date for its payment; or
24.1.1.3    You have not complied with an adjudicator’s notice that you must pay an amount to us by a particular date; and
24.1.1.4    We have given written notice to you of our intention to suspend the carrying out of construction work under the construction contract.
24.1.2    if we suspend the Works, we:
24.1.2.1    are not in breach of contract; and
24.1.2.2    are not liable for any loss or damage whatsoever suffered, or alleged to be suffered, by you or by any person claiming through you; and
24.1.2.3    are entitled to an extension of time to complete the contract; and
24.1.2.4    keep our 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.
24.1.3    if we exercise the right to suspend the Works, the exercise of that right does not:
24.1.3.1    affect any rights that would otherwise have been available to us under the Contract and Commercial Law Act 2017; or
24.1.3.2    enable you to exercise any rights that may otherwise have been available to you under that Act as a direct consequence of us suspending the Works under this provision.

25.1    Our failure to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect our 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.
25.2    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 courts of New Zealand.
25.3    We shall be under no liability whatsoever to you for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by you arising out of a breach by us of these terms and conditions (alternatively our liability shall be limited to damages which under no circumstances shall exceed the Price).
25.4    You shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to you by us nor to withhold payment of any invoice because part of that invoice is in dispute.
25.5    We may license or sub-contract all or any part of its rights and obligations without your consent.
25.6    You agree that we may amend these terms and conditions at any time. If we make a change to these terms and conditions, then that change will take effect from the date on which we notify you of such change. You will be taken to have accepted such changes if you make a further request for us to provide any Works to you.
25.7    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.
25.8   You warrant that you have the power to enter into this agreement and have obtained all necessary authorisations to allow you to do so, you are not insolvent and that this agreement creates binding and valid legal obligations on you.