Last Updated at 6 May, 2025
1.1 “Completion” means the stage when the Works are completed, except for minor defects or omissions that do not prevent the Works from being capable of being used for their intended purpose, the Worksite is reasonably suitable for occupation, and all statutory requirements have been met. Both parties agree that Completion does not require obtaining final inspection certificates for the building permit for the Works.
1.2 “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.
1.3 1.4 “Contractor” means Impact Roofing Solutions Limited T/A Impact Roofing Solutions, its successors and assigns.
“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 Customer does not wish to allow Cookies to operate in the background when using the Contractor’s website, then the Customer 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.
1.5 “Customer” means the person/s, entities or any person acting on behalf of and with the authority of the Customer requesting the Contractor to provide the Works as specified in any proposal, quotation, order, invoice or other documentation, and:
(a) if there is more than one Customer, is a reference to each Customer jointly and severally; and
(b) if the Customer is a partnership, it shall bind each partner jointly and severally; and
(c) if the Customer is a part of a Trust, shall be bound in their capacity as a trustee; and
(d) includes the Customer’s executors, administrators, successors and permitted assigns.
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 “Price” means the Price payable (plus any Goods and Services Tax (“GST”) where applicable) for the Works as agreed between the Contractor and the Customer in accordance with clause 7 below.
1.9 “Works” means all Works (including consultation, manufacturing and/or installation services) or Materials supplied by the Contractor to the Customer at the Customer’s request from time to time (where the context so permits the terms ‘Works’ or ‘Materials’ shall be interchangeable for the other).
1.10 “Worksite” means the address nominated by the Customer to which the Materials are to be supplied by the Contractor.
2.1 The Customer is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Customer 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 2.4 Any amendment to the terms and conditions contained in this Contract may only be amended in writing by the consent of both parties. The Customer acknowledges and accepts that:
(a) the supply of Works on credit shall not take effect until the Customer has completed a credit application with the Contractor and it has been approved with a credit limit established for the account;
(b) in the event that the supply of Works requested exceeds the Customer’s credit limit and/or the account exceeds the payment terms, the Contractor reserves the right to refuse delivery; and
(c) the supply of Materials for accepted orders may be subject to availability and if, for any reason, Materials are not or cease to be available, the Contractor reserves the right to substitute comparable Materials (or components of the Materials) and vary the Price as per clause 7.2. In all such cases the Contractor will notify the Customer in advance of any such substitution, and also reserves the right to place the Customer’s order and/or Works on hold, as per clause 8.2 until such time as the Contractor and the Customer agree to such changes.
2.5 Any advice, recommendation, information, assistance or service provided by the Contractor in relation to Materials or Works supplied is given in good faith to the Customer, or the Customer’s agent and is based on the Contractor’s own knowledge and experience and shall be accepted without liability on the part of the Contractor. Where such advice or recommendations are not acted upon then the Contractor shall require the Customer or their agent to authorise commencement of the Works in writing. The Contractor shall not be liable in any way whatsoever for any damages or losses that occur after any subsequent commencement of the Works.
2.6 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.
3.1 The Customer acknowledges that the Contractor shall (for the duration of the Works) liaise directly with one (1) authorised representative, and that once introduced as such to the Contractor, that person shall have the full authority of the Customer to order any Materials, Works and/or to request any variation thereto on the Customer’s behalf. The Customer accepts that they will be solely liable to the Contractor for all additional costs incurred by the Contractor (including the Contractor’s profit margin) in providing any Materials, Works or variation/s requested thereto by the Customer’s duly authorised representative.
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4.1 The Customer acknowledges and accepts that the Contractor 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 the Contractor 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 the Contractor 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 the Contractor; the Customer shall not be entitled to treat this Contract as repudiated nor render it invalid.
5.1 The Customer shall give the Contractor not less than fourteen (14) days prior written notice of any proposed change of ownership of the
Customer and/or any other change in the Customer’s details (including but not limited to, changes in the Customer’s name, address, contact
phone or fax number/s, change of trustees, or business practice). The Customer shall be liable for any loss incurred by the Contractor as a
result of the Customer’s failure to comply with this clause.
6.1 The Contractor will:
(a) keep the Customer’s personal details, including credit card details for only as long as is deemed necessary by the Contractor;
(b) not disclose the Customer’s credit card details to any third party; and
(c) not unnecessarily disclose any of the Client’s personal information, except is accordance with the Privacy Act (clause 24) or where
required by law.
6.2 The Customer expressly agrees that, if pursuant to this Contract, there are any unpaid charges, other amounts due, the Contractor is entitled
to immediately charge the Customer’s nominated credit card for these amounts and is irrevocably authorised to complete any documentation
and take any action to recover from the credit card issuer any and all amounts which may be due by the Customer pursuant to the terms of
this Contract.
7.1 At the Contractor’s sole discretion, the Price shall be either:
(a) as indicated on invoices provided by the Contractor to the Customer in respect of Works performed or Materials supplied; or
(b) the Contractor’s quoted Price (subject to clause 7.2) which shall be binding upon the Contractor provided that the Customer shall accept
the Contractor’s quotation in writing within thirty (30) days.
7.2 The Contractor 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 Customer, safety considerations (discovery of asbestos, etc.), prerequisite work by any third party not being completed,
hidden pipes and wiring etc.) which are only discovered on commencement of the Works; or
(d) in the event of increases to the Contractor in the cost of labour or Materials which are beyond the Contractor’s control.
7.3 Variations will be charged for on the basis of the Contractor’s quotation, and will be detailed in writing, and shown as variations on the
Contractor’s invoice. The Customer shall be required to respond to any variation submitted by the Contractor within five (5) working days.
Failure to do so will entitle the Contractor 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.
7.4 7.5 At the Contractor’s sole discretion, a non-refundable deposit may be required.
Time for payment for the Works being of the essence, the Price will be payable by the Customer on the date/s determined by the Contractor,
which may be:
(a) on Completion of the Works;
(b) by way of progress payments in accordance with the Contractor’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;
(c) for certain approved Customers, due twenty (20) days following the end of the month in which a statement is posted to the Customer’s
address or address for notices;
(d) the date specified on any invoice or other form as being the date for payment; or
(e) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Customer by the
Contractor.
7.6 At the agreement of both parties, payment of the Price may be subject to retention by the Customer of an amount (hereafter called the
"Retention Money"), being a set amount or equal to a percentage of the Price. The Customer 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 the
Contractor’s obligations under the Contract.
7.7 Payment may be made by electronic/on-line banking, credit card (a surcharge may apply per transaction), or by any other method as agreed
to between the Customer and the Contractor.
7.8 The Contractor may in its discretion allocate any payment received from the Customer towards any invoice that the Contractor determines
and may do so at the time of receipt or at any time afterwards. On any default by the Customer the Contractor may re-allocate any payments
previously received and allocated. In the absence of any payment allocation by the Contractor, payment will be deemed to be allocated in
such manner as preserves the maximum value of the Contractor’s Purchase Money Security Interest (as defined in the PPSA) in the
Materials.
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7.9 7.10 The Customer shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Customer by the
Contractor nor to withhold payment of any invoice because part of that invoice is in dispute, unless the request for payment by the
Contractor is a claim made under the Construction Contracts Act 2002. Nothing in this clause 7.9 prevents the Customer from the ability to dispute any invoice.
Unless otherwise stated the Price does not include GST. In addition to the Price, the Customer must pay to the Contractor an amount equal
to any GST the Contractor must pay for any supply by the Contractor under this or any other agreement for the sale of the Materials. The
Customer must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Customer pays
the Price. In addition, the Customer 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.
8.1 8.2 Subject to clause 8.2 it is the Contractor’s responsibility to ensure that the Works start as soon as it is reasonably possible.
The Works’ commencement date will be put back and the completion date extended by whatever time is reasonable in the event that the
Contractor claims an extension of time (by giving the Customer written notice) where completion is delayed by an event beyond the
Contractor’s control, including but not limited to any failure by the Customer to:
(a) make a selection; or
(b) have the Worksite ready for the Works; or
(c) notify the Contractor that the Worksite is ready.
8.3 8.4 At the Contractor’s sole discretion, the cost of delivery is included in the Price.
The Contractor 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.
8.5 Any time specified by the Contractor for delivery of the Works is an estimate only and the Contractor will not be liable for any loss or damage
incurred by the Customer 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 the Contractor is unable to supply the
Works as agreed solely due to any action or inaction of the Customer, then the Contractor 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.
9. Dimensions, Plans and Specifications
9.1 All customary building industry tolerances shall apply to the dimensions and measurements of the Materials unless the Contractor and the
Customer agree otherwise in writing.
9.2 9.3 The Contractor shall be entitled to rely on the accuracy of any plans, specifications and other information provided by the Customer.
If the giving of an estimate or quotation for the supply of Materials involves the Contractor estimating measurements and quantities, it shall
be the responsibility of the Customer to verify the accuracy of the Contractor’s estimated measurements and quantities, before the Customer
places an order based on such estimate or accepts such quotation.
9.4 Should the Customer require any changes to the Contractor’s estimated measurements and quantities, the Customer 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.
10. Risk
10.1 If the Contractor retains ownership of the Materials under clause 14 then:
(a) where the Contractor is supplying Materials only, all risk for the Materials shall immediately pass to the Customer on delivery and the
Customer must insure the Materials on or before delivery. Delivery of the Materials shall be deemed to have taken place immediately at
the time that the Materials are delivered by the Contractor or the Contractor’s nominated carrier to the Customer’s nominated delivery
address (even if the Customer is not present at the address); and
(b) unless otherwise agreed, where the Contractor is to both supply and install Materials then the Contractor 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
Customer.
10.2 Notwithstanding the provisions of clause 10.1 if the Customer specifically requests the Contractor to leave Materials outside the Contractor’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
Customer and it shall be the Customer’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 Customer’s expense.
10.3 The Customer warrants that any structures to which the Materials are to be affixed are able to withstand the installation thereof and are of
suitable capacity to handle the Materials once installed. If for any reason (including the discovery of asbestos, hazardous materials, defective
or unsafe structures or risk), the Contractor, or the Contractor’s employees, reasonably form the opinion that the Customer’s premises is not
safe for the Works to proceed then the Contractor shall be entitled to delay the provision of the Works (in accordance with clause 8.2) until
the Contractor is satisfied that it is safe for the installation to proceed.
10.4 All potential waterproofing surfaces are subject to an inspection by the Contractor prior to the commencement of the Works. In the event that
the surface is deemed unsuitable, then the Contractor reserves the right to halt the Works until such time as it is agreed between the
Contractor and the Customer 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 7.2.
10.5 The Contractor does not guarantee any repair work, maintenance on existing roofing materials that have been previously installed by
another installer.
10.6 The Customer acknowledges and accepts that:
(a) in the event that the Contractor discovers another leak during the provisions of the Works and additional Works are required or if the leak
is not fixed after an attempt to repair, then the Contractor reserves the right to re-quote for the additional Works which shall be treated as
a variation in accordance with clause 7.2;
(b) where the Contractor has performed temporary repairs that:
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10.7 10.8 (i) the Contractor offers no guarantee against the reoccurrence of the initial fault, or any further damage caused; and
(ii) the Contractor will immediately advise the Customer of the fault and shall provide the Customer with an estimate for the full repair
required.
(c) in the event that either the Contractor is required to remove the Sky Dish prior to the commencement of the Works, or the Customer
requests the Contractor to remove the Sky Dish prior to replacing the roof and upon completion of the Works re-install the Sky Dish, it
shall be the Customer’s responsibility to arrange for a technician to ensure that the Sky Dish has been aligned correctly to the satellite
for optimum viewing;
(d) the Contractor’s quotation for repairs to existing roofs (tiles) shall be based only on the replacement of damaged roofing/cladding/tiles
and/or any other roofing materials and shall not include the replacement of roofing/cladding/tiles and/or any other roofing materials with
slight imperfections unless authorised by the Customer prior to the commencement of the Works. If the Customer requests the
replacement of roofing/cladding/tiles and/or any other roofing materials that have slight imperfections, but the Contractor does not deem
to be defective or affect the integrity of the roof then this shall be a variation to the original quotation and clause 7.2 will apply;
(e) no persons other than those authorised or employed by the Contractor 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. The Contractor shall not
be liable for any loss, damages, injuries, or costs however arising resulting from the Customer’s failure to comply with this clause;
(f) the Contractor accepts no liability for any subsequent loss or damage (including, but not limited to, internal water damage) to the
Customer’s property which may occur during the cleaning process where such loss or damage is due to pre-existing faults or leaks;
(g) it is their responsibility to ensure that any uncompleted areas are kept watertight during construction if there is any delay in the Works
due to circumstances beyond the control of the Contractor (including, but not limited to, waiting on another trade, materials, or weather
conditions). The Contractor will accept no liability whatsoever for any damages caused as a result of the Customer’s failure to comply
with this clause;
(h) despite the Contractor’s best efforts there may be instances beyond the Contractor’s control (including, but not limited to, when removing
weatherboard cladding, concrete tiles from the roof, to replace with the new roof etc) that can result in some tiles becoming displaced as
the removed tile may be securing the other tiles adjacent, above or below, which may result in the tiles falling and causing damage to the
ceiling. The Contractor shall in agreement with the Customer repair any such damages but any cost for the rectification Works shall be at
the Customer’s cost and will be treated as a variation in accordance with clause 7.2 unless it is deemed that the damage is as a result of
the Contractor’s negligence;
(i) they shall remove any tangible items susceptible to damage from the vicinity of the Works (and provide protection where necessary), and
agrees that the Contractor shall not be liable for any damage caused to those items through the Customer’s failure to comply with this
clause;
(j) where an anodised surface finish has been selected, slight colour variation may occur between the main unit frame and any installation
trims or drainage components used due to the difference in metal alloys available and manufacturing standards and tolerances shall not
deemed to be a defect in the Materials; and
(k) Materials (including but not limited to timber, steel, roofing/cladding, etc.) supplied may exhibit variations in shade, colour, texture,
surface, markings, finish, and may contain natural fissures, occlusions, lines, indentations which may:
(i) fade or change colour over time;
(ii) contract or distort as a result of exposure to heat, cold, or weather;
(iii) mark or stain if exposed to certain substances; and
(iv) be damaged or disfigured by impact or scratching.
The Contractor will make every effort to match batches of product supplied in order to minimise such variations but shall not be liable in any
way whatsoever where such variations occur.
It shall be the Customer’s responsibility to ensure that:
(a) any aerials, cables, cameras, lights etc that are to be re-installed onto the roof upon completion of the Works are in a good condition
and/or working order; and
(b) any electrical wires and/or cables are re-positioned and checked by a qualified trades person to avoid potential fire hazards. The
Contractor shall not be liable for any loss or damages to the Materials and/or Works if the Customer fails to adhere to this clause.
11. Worksite Access and Condition
11.1 The Contractor is not responsible for the removal of rubbish from or clean-up of the building/construction Worksite/s. All rubbish generated
by the Contractor will be placed in a designated area appointed by the Customer but the responsibility of removal of same is the Customer or
the Customer’s agent, unless otherwise agreed.
11.2 It is the intention of the Contractor and agreed by the Customer that:
(a) the Customer shall ensure that the Contractor 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). The Contractor 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 the Contractor; and
(b) it is the Customer’s responsibility to provide the Contractor, while at the Worksite, with adequate access to available water, electricity,
toilet and washing facilities.
11.3 Where the Contractor requires that Materials, fittings and appliances, or plant and tools required for the Works be stored at the Worksite, the
Customer shall supply the Contractor a safe area for storage and shall take all reasonable efforts to protect all items from possible
destruction, theft or damage. In the event that any of the stored items are destroyed, stolen or damaged, then the cost of repair or
replacement shall be the Customer’s responsibility.
11.4 The Customer agrees to be present at the Worksite when and as reasonably requested by the Contractor and its employees, contractors
and/or agents.
11.5 Worksite Inductions
(a) in the event the Customer requires an employee or sub-contractor of the Contractor to undertake a Worksite induction during working
hours, the Customer will be liable to pay the hourly charges for that period. If any induction needs to be undertaken prior to the
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commencement date then the Customer shall be liable to pay the Contractor’s standard (and/or overtime, if applicable) hourly labour
rate; or
(b) where the Contractor is in control of the Worksite, the Customer and/or the Customer’s third-party contractors must initially carry out the
Contractor’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 Customer and/or third party acting on
behalf of the Customer must at all times be accompanied by the Contractor.
12. Underground Locations
12.1 Prior to the Contractor commencing any work the Customer must advise the Contractor of the precise location of all underground services
on the Worksite and clearly mark the same. The underground mains and services the Customer 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 the Worksite.
12.2 Whilst the Contractor will take all care to avoid damage to any underground services the Customer agrees to indemnify the Contractor 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 12.1.
13. Compliance with Laws
13.1 The Customer and the Contractor 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.
13.2 Both parties acknowledge and agree:
(a) to comply with the Building Act 2004 (including any subsequent Amendments) and Code of Ethics, 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.
13.3 Where the Customer has supplied products for the Contractor to complete the Works, the Customer 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 the Contractor’s opinion, it is believed that the materials supplied are Non-Conforming products and will not conform with New
Zealand regulations, then the Contractor 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 7.2.
13.4 13.5 The Customer shall obtain (at the expense of the Customer) all licenses and approvals that may be required for the Works.
Notwithstanding clause 13.1 and pursuant to the Health & Safety at Work Act 2015 (the “HSW Act”), the Contractor 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 Customer who has
engaged a third party head contractor.
14. Title
14.1 The Contractor and the Customer agree that ownership of the Materials shall not pass until:
(a) the Customer has paid the Contractor all amounts owing to the Contractor; and
(b) the Customer has met all of its other obligations to the Contractor.
14.2 Receipt by the Contractor 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.
14.3 It is further agreed that:
(a) until ownership of the Materials passes to the Customer in accordance with clause 14.1 that the Customer is only a bailee of the
Materials and unless the Materials have become fixtures must return the Materials to the Contractor on request;
(b) the Customer holds the benefit of the Customer’s insurance of the Materials on trust for the Contractor and must pay to the Contractor
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 the Contractor shall be sufficient evidence of the Contractor’s rights to receive the
insurance proceeds direct from the insurer without the need for any person dealing with the Contractor to make further enquiries;
(d) the Customer 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 Customer sells, disposes or parts with possession of the Materials then the Customer must hold the proceeds of
any such act on trust for the Contractor and must pay or deliver the proceeds to the Contractor on demand;
(e) the Customer should not convert or process the Materials or intermix them with other goods but if the Customer does so then the
Customer holds the resulting product on trust for the benefit of the Contractor and must sell, dispose of or return the resulting product to
the Contractor as it so directs;
(f) unless the Materials have become fixtures the Customer irrevocably authorises the Contractor to enter any premises where the
Contractor believes the Materials are kept and recover possession of the Materials;
(g) the Contractor may recover possession of any Materials in transit whether or not delivery has occurred;
(h) the Customer 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 the Contractor; and
(i) the Contractor may commence proceedings to recover the Price of the Materials sold notwithstanding that ownership of the Materials
has not passed to the Customer.
15. 15.1 Personal Property Securities Act 1999 (“PPSA”)
Upon assenting to these terms and conditions in writing the Customer 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 the Contractor to
the Customer and the proceeds from such Materials as listed by the Contractor to the Customer in invoices rendered from time to time.
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15.2 The Customer 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 the Contractor may reasonably require to register a financing statement or financing change statement on the Personal
Property Securities Register;
(b) indemnify, and upon demand reimburse, the Contractor 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 the Contractor; and
(d) immediately advise the Contractor 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.
15.3 The Contractor and the Customer agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms and
conditions.
15.4 15.5 The Customer waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, and 131 of the PPSA.
Unless otherwise agreed to in writing by the Contractor, the Customer waives its right to receive a verification statement in accordance with
section 148 of the PPSA.
15.6 15.7 The Customer shall unconditionally ratify any actions taken by the Contractor under clauses 15.1 to 15.5.
Subject to any express provisions to the contrary (including those contained in this clause 15), nothing in these terms and conditions is
intended to have the effect of contracting out of any of the provisions of the PPSA.
16. Security and Charge
16.1 In consideration of the Contractor agreeing to supply the Works, the Customer 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 Customer either now or in the future, and the Customer
grants a security interest in all of its present and after-acquired property, to secure the performance by the Customer 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.
16.2 The Customer indemnifies the Contractor from and against all the Contractor’s costs and disbursements including legal costs on a solicitor
and own client basis incurred in exercising the Contractor’s rights under this clause.
16.3 The Customer irrevocably appoints the Contractor and each director of the Contractor as the Customer’s true and lawful attorney/s to
perform all necessary acts to give effect to the provisions of this clause 16 including, but not limited to, signing any document on the
Customer’s behalf.
17. Defects and Returns
17.1 The Customer shall inspect the Materials on delivery and shall within seven (7) days of delivery (time being of the essence) notify the
Contractor of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Customer shall afford
the Contractor an opportunity to inspect the Materials within a reasonable time following delivery if the Customer believes the Materials are
defective in any way. If the Customer shall fail to comply with these provisions the Materials shall be presumed to be free from any defect or
damage. For defective Materials, which the Contractor has agreed in writing that the Customer is entitled to reject, the Contractor’s liability is
limited to either (at the Contractor’s discretion) replacing the Materials or repairing the Materials.
17.2 The Contractor may (in its discretion) accept the return of Materials for credit but this may incur a restocking and handling fee of twenty-five
percent (25%) of the value of the returned Materials plus any freight.
17.3 Subject to clause 17.1, non-stocklist items or Materials made to the Customer’s specifications are under no circumstances acceptable for
credit or return.
18. Warranties
18.1 Subject to the conditions of warranty set out in clause 18.2 the Contractor warrants that if any defect in any Works provided by the
Contractor becomes apparent and is reported to the Contractor within:
(a) ten (10) years of the date of delivery (time being of the essence) for new builds where the Works have been signed off by a licenced
building practitioner; and
(b) five (5) years of the date of delivery (time being of the essence) for roof replacements.
The Contractor will either (at the Contractor’s sole discretion) replace or remedy the defect.
18.2 The conditions applicable to the warranty given by clause 18.1 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 Customer to properly maintain any Materials or serviced item; or
(ii) failure on the part of the Customer to follow any instructions or guidelines provided by the Contractor; 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 the Contractor shall thereafter in no circumstances be liable under the terms of the warranty if the
workmanship is repaired, altered or overhauled without the Contractor’s consent.
(c) in respect of all claims the Contractor shall not be liable to compensate the Customer for any delay in either replacing or remedying the
workmanship or in properly assessing the Customer’s claim.
18.3 For Materials not manufactured by the Contractor, the warranty shall be the current warranty provided by the manufacturer of the Materials.
The Contractor 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.
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19. Consumer Guarantees Act 1993
19.1 If the Customer is acquiring Materials for the purposes of a trade or business, the Customer acknowledges that the provisions of the
Consumer Guarantees Act 1993 (“CGA”) do not apply to the supply of Materials by the Contractor to the Customer.
20. Intellectual Property
20.1 The Customer warrants that all designs, specifications or instructions given to the Contractor will not cause the Contractor to infringe any
patent, registered design or trademark in the execution of the Customer’s order and the Customer agrees to indemnify the Contractor
against any action taken by a third party against the Contractor in respect of any such infringement.
20.2 The Customer agrees that the Contractor may (at no cost) use for the purposes of marketing or entry into any competition, any documents,
designs, drawings, plans or products which the Contractor has created for the Customer.
21. 21.1 21.2 21.3 21.4 Default and Consequences of Default
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 the Contractor’s sole discretion such interest shall compound monthly at such a rate) after as
well as before any judgment.
If the Customer owes the Contractor any money the Customer shall indemnify the Contractor from and against all costs and disbursements
incurred by the Contractor in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own
client basis, the Contractor’s collection agency costs, and bank dishonour fees).
Further to any other rights or remedies the Contractor may have under this Contract, if a Customer has made payment to the Contractor,
and the transaction is subsequently reversed, the Customer shall be liable for the amount of the reversed transaction, in addition to any
further costs incurred by the Contractor under this clause 21, where it can be proven that such reversal is found to be illegal, fraudulent or in
contravention to the Customer’s obligations under this Contract.
Without prejudice to the Contractor’s other remedies at law the Contractor shall be entitled to cancel all or any part of any order of the
Customer which remains unfulfilled and all amounts owing to the Contractor shall, whether or not due for payment, become immediately
payable if:
(a) any money payable to the Contractor becomes overdue, or in the Contractor’s opinion the Customer will be unable to make a payment
when it falls due;
(b) the Customer has exceeded any applicable credit limit provided by the Contractor;
(c) the Customer 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 Customer or any asset of the
Customer.
22. Cancellation
22.1 Without prejudice to any other rights or remedies the Contractor may have, if at any time the Customer 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 Customer of such notice/s) then the Contractor may suspend or terminate the supply of the Works. The Contractor will not be liable to
the Customer for any loss or damage the Customer suffers because the Contractor has exercised its rights under this clause.
22.2 The Contractor 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 Customer. On giving such notice the Contractor shall repay to the Customer any sums paid in
respect of the Price, less any amounts owing by the Customer to the Contractor for Works already performed. The Contractor shall not be
liable for any loss or damage whatsoever arising from such cancellation.
22.3 In the event that the Customer cancels the delivery of Works the Customer shall be liable for any and all loss incurred (whether direct or
indirect) by the Contractor as a direct result of the cancellation (including, but not limited to, any loss of profits).
22.4 Cancellation of orders for products made to the Customer’s specifications, or for non-stocklist items, will definitely not be accepted once
production has commenced, or an order has been placed.
23. Suspension of Works
23.1 Where the Contract is subject to section 24A of the Construction Contracts Act 2002, the Customer hereby expressly acknowledges that:
(a) the Contractor 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 Customer, and:
(i) the payment is not paid in full by the due date for payment in accordance with clause 7.5 and/or any subsequent amendments or
new legislation and no payment schedule has been given by the Customer; or
(ii) a scheduled amount stated in a payment schedule issued by the Customer in relation to the payment claim is not paid in full by the
due date for its payment; or
(iii) the Customer has not complied with an adjudicator’s notice that the Customer must pay an amount to the Contractor by a particular
date; and
(iv) the Contractor has given written notice to the Customer of its intention to suspend the carrying out of construction work under the
construction Contract.
(b) if the Contractor 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 Customer or by any person claiming
through the Customer; 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.
(c) if the Contractor exercises the right to suspend work, the exercise of that right does not:
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23.2 (i) affect any rights that would otherwise have been available to the Contractor under the Contract and Commercial Law Act 2017; or
(ii) enable the Customer to exercise any rights that may otherwise have been available to the Customer under that Act as a direct
consequence of the Contractor suspending work under this provision;
(d) due to any act or omission by the Customer, the Customer effectively precludes the Contractor from continuing the Works or performing
or complying with the Contractor’s obligations under this Contract, then without prejudice to the Contractor’s other rights and remedies,
the Contractor may suspend the Works immediately after serving on the Customer 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 the Contractor as a result
of such suspension and recommencement shall be payable by the Customer as if they were a variation.
If pursuant to any right conferred by this Contract, the Contractor suspends the Works and the default that led to that suspension continues
un-remedied subject to clause 22.1 for at least ten (10) working days, the Contractor shall be entitled to terminate the Contract, in
accordance with clause 22.
24. Privacy Policy
24.1 All emails, documents, images or other recorded information held or used by the Contractor is “Personal Information” as defined and
referred to in clause 24.3 and therefore considered confidential. The Contractor acknowledges its obligation in relation to the handling, use,
disclosure and processing of Personal Information pursuant to the Privacy Act 2020 (“the Act”) including Part II of the OECD Guidelines and
as set out in the Act. The Contractor acknowledges that in the event it becomes aware of any data breaches and/or disclosure of the
Customer’s Personal Information, held by the Contractor that may result in serious harm to the Customer, the Contractor will notify the
Customer in accordance with the Act. Any release of such Personal Information must be in accordance with the Act must be approved by the
Customer by written consent, unless subject to an operation of law.
24.2 Notwithstanding clause 24.1, privacy limitations will extend to the Contractor in respect of Cookies where the Customer utilises the
Contractor’s website to make enquiries. The Contractor 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 Customer’s:
(a) IP address, browser, email client type and other similar details;
(b) tracking website usage and traffic; and
(c) reports are available to the Contractor when the Contractor sends an email to the Customer, so the Contractor may collect and review
that information (“collectively Personal Information”)
If the Customer consents to the Contractor’s use of Cookies on the Contractor’s website and later wishes to withdraw that consent, the
Customer may manage and control the Contractor’s privacy controls via the Customer’s web browser, including removing Cookies by
deleting them from the browser history when exiting the site.
24.3 The Customer authorises the Contractor or the Contractor’s agent to:
(a) access, collect, retain and use any information about the Customer;
(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 Customer’s creditworthiness; or
(ii) for the purpose of marketing products and services to the Customer.
(b) disclose information about the Customer, whether collected by the Contractor from the Customer directly or obtained by the Contractor
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 Customer.
24.4 24.5 Where the Customer is an individual the authorities under clause 24.3 are authorities or consents for the purposes of the Privacy Act 2020.
The Customer shall have the right to request (by e-mail) from the Contractor, a copy of the Personal Information about the Customer
retained by the Contractor and the right to request that the Contractor correct any incorrect Personal Information.
24.6 The Contractor will destroy Personal Information upon the Customer’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.
24.7 The Customer can make a privacy complaint by contacting the Contractor via e-mail. The Contractor 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 Customer is not satisfied with the resolution provided, the Customer can make a complaint to the Privacy
Commissioner at http://www.privacy.org.nz.
25. Service of Notices
25.1 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;
(c) by sending it by registered post to 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.
25.2 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.
26. Trusts
26.1 If the Customer 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 the Contractor may have notice of the Trust, the Customer covenants with the Contractor as follows:
(a) the Contract extends to all rights of indemnity which the Customer now or subsequently may have against the Trust and the trust fund;
(b) the Customer 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 Customer against the Trust or the trust fund. The Customer 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;
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(c) the Customer will not without consent in writing of the Contractor (the Contractor will not unreasonably withhold consent), cause, permit,
or suffer to happen any of the following events:
(i) the removal, replacement or retirement of the Customer 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.
27. General
27.1 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).
27.2 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.
27.3 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 Auckland Courts of New Zealand.
27.4 Subject to the CGA, the Contractor shall be under no liability whatsoever to the Customer for any indirect and/or consequential loss and/or
expense (including loss of profit) suffered by the Customer arising out of a breach by the Contractor of these terms and conditions
(alternatively the Contractor’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Works).
27.5 27.6 27.7 The Contractor may licence and/or assign all or any part of its rights and/or obligations under this Contract without the Customer’s consent.
The Customer cannot licence or assign without the written approval of the Contractor.
The Contractor 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 Customer agrees and understands that they have no authority to give any instruction to any of the
Contractor’s sub-contractors without the authority of the Contractor.
27.8 The Customer agrees that the Contractor may amend their general terms and conditions for subsequent future contracts with the Customer
by disclosing such to the Customer in writing. These changes shall be deemed to take effect from the date on which the Customer accepts
such changes, or otherwise at such time as the Customer makes a further request for the Contractor to provide Works to the Customer.
27.9 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 Customer to make a payment to the
Contractor.
27.10 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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