1 Definitions

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

1.2 “ASCL” means Adhesion Sealing Canterbury Limited (or otherwise referred to as the “Vendor”), its successors and assigns or any person acting on behalf of and with the authority of Adhesion Sealing Canterbury Limited.

1.3 “Client” means the person/s, entities or any person acting on behalf of and with the authority of the Client requesting ASCL to provide the Works as specified in any proposal, price, 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 “Goods” means all Goods, Services, Materials or Works supplied by ASCL to the Client (including consultation, materials, construction and/or installation services) supplied by ASCL to the Client at the Client’s request from time to time (where the context so permits the terms “Goods” or “Services” or “Materials” or “Works” shall be interchangeable for the other).

1.5 “Cookies” means small files which are stored on a user’s electronic device. They are designed to hold a modest amount of data (including PII) specific to a particular client and website and can be accessed either by the web server or the Client’s electronic device. If the Client does not wish to allow Cookies to operate in the background when ordering from the 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 ordering Works via the website.

1.6 “Price” means the Price payable (plus any Goods and Services Tax (“GST”) where applicable) for the Works as agreed between ASCL 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 customer information form with ASCL, and it has been approved with a credit limit established for the account, if required.

2.5 In the event that the supply of Works request exceeds the Clients credit limit and/or the account exceeds the payment terms, ASCL reserves the right to refuse acceptance for new orders or refuse delivery of the Services.

2.6 All potential waterproofing surfaces are subject to an inspection by ASCL prior to the commencement of the Works. In the event that the surface is deemed unsuitable, then ASCL reserves the right to halt the Works until such time as it is agreed between ASCL 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.

2.7 In the event that the Materials and/or Works provided by ASCL are the subject of an insurance claim that the Client has made, then the Client shall be responsible for the payment of any monies payable to the insurance company and agrees to honour their obligation for payment for such transactions invoiced by ASCL and shall ensure payment is made by the due date irrespective of whether the insurance claim is successful.

2.8 Where ASCL gives any advice, recommendation, information, assistance or service provided by ASCL in relation to Materials or Works supplied is given in good faith and is based on ASCL’s own knowledge and experience and shall be accepted without liability on the part of ASCL.

2.9 Where such advice or recommendation is not acted upon then ASCL shall require the Client or their agent to authorise commencement of the Works in writing. ASCL shall not be liable in any way whatsoever for any damages or losses that occur after any subsequent commencement of the Works.

2.10 If ASCL has been requested by the Client to prepare a Price that involves multiple site visits or third-party involvement (including but not limited to engineers, surveyor or local councils), all costs involved will be charged to the Client irrespective of whether or not the Works go ahead.

2.11 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.

2.12 The issuance of PS3 Producer Statements will only be undertaken by ASCL when payment in full has been received from the Client.

2.13 Where the Client is a tenant (and therefore not the owner of the land and premises where Materials are to be installed) then the Client acknowledges and agrees that they shall be personally liable for full payment of the Price for all Works provided under this agreement and to indemnify ASCL against any claim made by the owner of the premises ( however arising) in relation to the installation of the Materials and the provision of any related Works by ASCL, except where such claim has arisen because of the negligence of ASCL when installing the Materials.

2.14 The Client agrees that they shall upon request from ASCL provide evidence that:

(a) they are the owner of the land and premises upon which the Works are to be undertaken; or

(b) Where they are a tenant, that they have the consent of the owners for the Materials to be installed on the land and premises upon which the Works are to be undertaken.

2.15 In the event that ASCL is required to provide the Works urgently, that may result in ASCL to work outside normal business hours (including, but, not limited to working through lunch breaks, weekends and/or Public Holidays) or incur travel or accommodation costs, then ASCL reserves the right to charge the Client the additional costs unless otherwise agreed between ASCL and the Client.

3 Errors and Omissions

3.1 The Client acknowledges and accepts that ASCL 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 ASCL 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 ASCL in respect of the Works.

3.2 In the event such an error and/or omission occurs in accordance with clause 3.1and is not attributable to the negligence and/or wilful misconduct of ASCL; the Client shall not be entitled to treat this Contract as repudiated nor render it invalid.

3.3 Clerical errors or omissions, whether in computation or otherwise in the quotation, acknowledgement or invoice shall be subject to correction.

4 Authorised Representatives

4.1 The Client acknowledges that ASCL shall (for the duration of the Works) liaise directly with authorised representatives, and that once introduced as such to ASCL, 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 ASCL for all additional costs incurred by ASCL (including ASCL’s profit margin) in providing any Works, or variation/s requested thereto by the Client’s duly authorised representatives.

4.2 If the Client’s duly authorised representatives as per clause 4.1 is to have only limited authority to act on the Client’s behalf, then the Client must specifically and clearly advise ASCL in writing of the parameters of the limited authority granted to their representatives.

4.3 The Client specifically acknowledges and accepts that they will be solely liable to ASCL for all additional costs incurred by ASCL (including ASCL’s profit margin) in providing any Works, Materials or variations requested by the Client’s duly authorised representatives (subject always to the limitations imposed under clause 4.2 (if any)).

5 Change in Control

5.1 The Client shall give ASCL 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 details, change of directors, change of trustees, or business practice). The Client shall be liable for any loss incurred by ASCL as a result of the Client’s failure to comply with this clause.

6 Price and Payment

6.1 At ASCL’s sole discretion the Price shall be either:

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

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

6.2 ASCL 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 conditions, limitations to site access, ready availability of Materials, variations in quantity or volume of Materials to be supplied, prerequisite work by a third party not being completed, inaccurate measurements, non-consented plans or specifications supplied by the Client, building inspection variations, remedial work, ground work required, hard rock or other barriers below the surface, latent soil conditions, iron reinforcing rods in concrete, or hidden pipes and wiring, etc.) which are only discovered on commencement of the Works; or (d) in the event of increases to ASCL in the cost of labour or Materials which are beyond ASCL’s control.

6.3 Variations will be charged for on the basis of ASCL’s Price, and will be detailed in writing, and shown as variations on ASCL’s invoice. The Client shall be required to respond to any variation submitted by ASCL within ten (10) working days. Failure to do so will entitle ASCL 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 ASCL reserves the right to change the Price if a variation to the Goods supplied is requested by the Client or in the event of increases to ASCL in the cost of labour or Goods, different from the accepted quoted Price, (if delivery of Goods is delayed by the Client beyond 90 days from the acceptance of the quoted/estimated Price) which are beyond ASCL’s control.

6.5 At ASCL’s sole discretion a non-refundable deposit may be required.

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 the 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 Amendments Act 2015. For all Contracts requiring Retention Money to be included, ASCL will add an additional amount equal to ten percent (10%) of the originally quoted Price, to the final Price amount.

6.7 Time for payment for the Works being of the essence, the Price will be payable by the Client on the date/s determined by ASCL, which may be:

(a) on completion of the Works; or

(b) by way of progress payments in accordance with ASCL’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; or

(d) for certain approved Clients, due twenty (20) days following the end of the month in which an invoice is sent to the Client’s address or address for notices; or

(e) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Client by ASCL; or

(f) immediately payable at the time the Client places an order for any non-stock list item or bespoke Goods that ASCL have to pay to any third-party supplier.

6.8 Payment may be made by electronic/on-line banking or by any other method as agreed to between the Client and ASCL.

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

6.10 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 ASCL nor to withhold payment of any invoice because part of that invoice is in dispute, unless the request for payment by ASCL is a claim made under the Construction Contracts Act 2002.

6.11 Unless otherwise stated the Price does not include GST. In addition to the Price, the Client must pay to ASCL an amount equal to any GST ASCL must pay for any supply by ASCL 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 ASCL’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 ASCL claims an extension of time (by giving the Client written notice) where completion is delayed by an event beyond ASCL’s control, including but not limited to:

(a) extreme weather or temperature; or

(b) delays caused by third party contractors engaged by the Client; or

(i) make a selection; or

(ii) have the site ready for the Works; or

(iii) notify ASCL that the site is ready.

7.3 The Client acknowledges and accepts that where the Client wishes to postpone the Works, that ASCL must be notified in writing within forty-eight (48) hours of the proposed commencement date as agreed to between both parties. Where such notice is received outside of this timeframe, ASCL reserves the right to charge a reasonable fee for the delay in the commencement of the Works.

7.4 The Client acknowledges that when ASCL arrives at the worksite, changes in methodology may occur, this may affect the original quotation and ASCL shall reserve the right to provide a requote based on any new information that becomes apparent.

7.5 ASCL 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.

7.6 Any time specified by ASCL for delivery of the Works is an estimate only and ASCL will not be liable for any loss or damage incurred by the Client as a result of delivery being delayed for any reason. 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 ASCL is unable to supply the Works as agreed solely due to any action or inaction of the Client, then ASCL 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 ASCL shall be entitled to rely on the accuracy of any plans, specifications and other information provided by the Client. The Client acknowledges and agrees that in the event that any of this information provided by the Client is inaccurate, ASCL accepts no responsibility for any loss, damages, or costs however resulting from these inaccurate plans, specifications or other information.

8.2 All customary building industry tolerances shall apply to the dimensions and measurements of the Works unless ASCL and the Client agree otherwise in writing.

8.3 Where the Client is to supply ASCL with any design specifications the Client shall be responsible for providing accurate data. ASCL shall not be liable whatsoever for any errors in the Works that are caused by incorrect or inaccurate data being supplied by the Client.

8.4 In the event the Client gives information relating to measurements and quantities of Materials required in completing the Works, it is the Client’s responsibility to verify the accuracy of the measurements and quantities, before the Client or ASCL places an order based on these measurements and quantities. ASCL accepts no responsibility for any loss, damages, or costs however resulting from the Client’s failure to comply with this clause.

9 Access

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

9.2 It is the responsibility of the Client to ensure that access is suitable to accept the weight and height of laden trucks, hoisting or other moving equipment as may be deemed necessary by ASCL. The Client agrees to indemnify ASCL against all costs incurred by ASCL in recovering such vehicles in the event they become bogged or otherwise immovable.

9.3 The Client acknowledges and agrees that in the event ASCL requires access, in order to undertake the Works, to an adjoining or adjacent property or land to the nominated job site, that is not owned by the Client, then it is the Client’s responsibility to gain permission from the landowner to use the above-mentioned property throughout the process or delivering the Works. In the event the landowner denies access or use of the land or property, the Client shall be liable for all costs incurred by ASCL in gaining permission to access and/or use the property through any legal process that may be deemed necessary.

9.4 The Client shall ensure that the correct traffic and pedestrian measures are in place. Failure to do so will result in the Client becoming liable for any costs incurred by ASCL, unless otherwise agreed with ASCL.

10 Risk

10.1 If ASCL retains ownership of the Materials under clause 15 then where ASCL is supplying Materials only, all risk for the Materials shall immediately pass to the Client on delivery and the Client must insure the Materials on or before delivery. Delivery of the Materials shall be deemed to have taken place immediately at the time that the Materials are delivered by ASCL or ASCL’s nominated carrier to the Client’s nominated delivery address (even if the Client is not present at the address).

10.2 Notwithstanding the provisions of clause 10.1 if the Client specifically requests ASCL to leave Materials outside ASCL’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 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, defective or unsafe structures or risk) that ASCL, or ASCL employees, reasonably form the opinion that the Client’s premises is not safe for the Works to proceed then ASCL shall be entitled to delay the provision of the Works (in accordance with clause 7.2) until ASCL is satisfied that it is safe for the installation to proceed.

10.4 The Client agrees that all materials supplied by the Client or the Client’s third-party sub-contractors will:

(a) be supplied in accordance with all legislative requirements; and

(b) be suitable for their inclusion into the Works; and

(c) be up to industry standard and acknowledge that ASCL reserve the right not to use said materials if, in ASCL’s judgement, the materials do not come up to the relevant industry standard. If ASCL have to acquire replacement Materials, ASCL will pass on those costs to the Client.

10.5 Where the Client has supplied materials for ASCL to complete the Works, the Client acknowledges that it accepts responsibility for the suitability of purpose, quality and any faults inherent in those materials. However, if in ASCL’s opinion, it is believed that the materials supplied will not conform to New Zealand regulations, then ASCL shall be entitled, without prejudice, to halt the Works until the appropriate conforming materials are sourced and all costs associated with such a change to the plans will be invoiced in accordance with clause 6.2.

10.6 ASCL may not be able to ascertain the depth of, or if a void or cavity is present behind a crack for repair without closer inspection. Any additional costs incurred by ASCL for carrying out such investigation prior to repairing such a defect shall be invoiced as an extra.

10.7 ASCL gives no guarantee (expressed or implied) as to the length of time the curing process of repair Works will take due to factors or conditions outside ASCL’s control (including, but not limited to, the surfaces and the existing condition of the defect, atmospheric conditions including humidity and temperature, the nature of the repair).

10.8 The Client acknowledges that Materials supplied may:

(a) fade or change colour over time; and

(b) expand, contract or distort as a result of exposure to heat, cold, weather; and

(d) be damaged or disfigured by impact or scratching.

10.9 Where ASCL requires that Materials, tools etc. required for the Works be stored at the site, the Client shall supply ASCL a safe area for storage and shall take all reasonable efforts to protect all items from 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 Client’s responsibility.

10.10 ASCL is not responsible for the removal of general rubbish from or clean-up of the building/constructions site/s, but will clear up rubbish solely caused by ASCL, on the provision that the Client ensures that adequate skips or rubbish bins are available on the worksite.

10.11 The Client acknowledges that they shall unless otherwise stated:

(a) provide and have erected scaffolding to enable the Works to be undertaken (where in ASCL’s opinion it is deemed necessary). Any scaffolding must comply with industry safety standards and 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; and

(b) remove any furniture or personal items from the vicinity of the Works, and agrees that ASCL shall not be liable for any damage caused to those items through the Clients failure to comply with this clause; and

(c) provide adequate dustsheets to protect the Clients furniture, decor and floors. ASCL will not accept any responsibility for cleaning or repair costs attributed to dust or damage caused by any sanding process. Flaking or crumbling walls should be temporarily covered by the Client, until the coatings are dry; and

(d) be wholly responsible for animals and/or children on the worksite; and

(e) provide any heavy equipment that maybe required for the Works.

10.12 The Client warrants that no other tradesmen interfere with any Works and/or Materials supplied under this Contract. ASCL shall not be liable for any costs, damages or loss however arising from the Client’s failure to comply with this clause.

10.13 In the event that during the course of the Works ASCL discovers any fossils, artefacts or any other remains of geological or archaeological interest are discovered ASCL reserves the right to halt all Works, remove any of their equipment from the worksite and immediately notify the Client. Unless subject to clause 29.9, the Client accepts and agrees that all additional costs that may be incurred by ASCL as a result of any such delays (including but not limited to in the event ASCL is unable to remove their equipment from the worksite, etc.) shall be borne by the Client and shall be treated as a variation in accordance with clause 6.2

10.14 Where ASCL has effected delivery, all risk passes to the Client as per clause 10.1 and the Client claims the Materials have been stolen, it shall be The Client’s responsibility to contact the police, and shall not excuse the Client from fulfilling their financial obligations under this Contract.

10.15 The Client acknowledges that it is the Client’s responsibility to ensure that any surface requiring waterproofing is suitable for the purpose. In the event that the Client requests ASCL to prepare the surface for waterproofing, then at ASCL’s sole discretion a fee shall be charged for the Works, and shall become immediately due and payable.

11 Asbestos/Hazardous Materials

11.1 Prior to ASCL commencing any Works the Client must advise ASCL of the precise location of all known Asbestos/Hazardous Materials on the site and clearly mark the same. Removal from the site and the disposal of Asbestos/Hazardous Materials shall at all times be the Client’s responsibility unless otherwise agreed in writing.

11.2 In the event that ASCL discovers Asbestos/Hazardous Materials whilst undertaking any Works ASCL shall immediately advise the Client of the same and shall be entitled to suspend the Works pending a risk assessment in relation to those materials. The Client shall be liable for all additional costs (howsoever arising) incurred by ASCL as a result of the discovery of Asbestos/Hazardous Materials and/or any suspension of Works in relation thereto.

12 Excess Materials

12.1 All excess Materials will remain the property of ASCL and shall be removed on completion of the Works, unless the Materials have become fixtures, the Client must return the Materials to ASCL on request.

13 Compliance With Laws

13.1 The Client and ASCL 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 relating Worksafe health and safety laws or any other relevant safety standards or legislation pertaining to the Works.

13.2 The Client shall obtain (at the expense of the Client) any building consent and resource consent and any other licences and approvals that may be required for the Works. ASCL will require confirmation that all consents and approvals have been obtained by the Client prior to the commencement of the Works. In the event that any required consents are only obtained following commencement of the Works, any additional cost incurred due to any changes to the original plans and specifications provided by the Client shall be charged as a variation, in accordance with clause 6.2.

13.3 Notwithstanding clause 13.1 and pursuant to the Health & Safety at Work Act 2015 (the “HSW Act”) ASCL 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 namely ASCL.

14 Insurance and Liabilities

14.1 ASCL shall have public liability insurance of at least ten million dollars ($10M). It is the Client’s responsibility to ensure that they are similarly insured.

14.2 In the event of any breach of this contract by ASCL, the remedies of the Client shall be limited to damages. Under no circumstances shall the liability of ASCL exceed the cost of the Services supplied.

14.3 While ASCL provides the Services in good faith and to the best of its ability, ASCL is not liable for any costs, damages or loss suffered by the Client as a result of omissions or inaccuracies in the information provided. The Client accepts ASCL’s Services on the basis that to the maximum extent permitted by law, any liability of ASCL for the Services provided under the contract is hereby excluded. This is regardless of whether such liability arises in contract, tort (including negligence), equity, breach of statutory duty or otherwise.

15 Title

15.1 ASCL and the Client agree that ownership of the Materials shall not pass until:

(a) the Client has paid ASCL all amounts owing to ASCL; and

(b) the Client has met all of its other obligations to ASCL.

15.2 Receipt by ASCL 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.

15.3 It is further agreed that:

(a) until ownership of the Materials passes to the Client in accordance with clause 15.1 that the Client is only a bailee of the Materials and unless the Materials have become fixtures must return the Materials to ASCL on request; and

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

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

(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 ASCL and must pay or deliver the proceeds to ASCL on demand; and

(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 ASCL and must sell, dispose of or return the resulting product to ASCL as it so directs; and

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

(g) ASCL may recover possession of any Materials in transit whether or not delivery has occurred; and

(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 ASCL; and

(i) ASCL may commence proceedings to recover the Price of the Materials sold notwithstanding that ownership of the Materials has not passed to the Client.

16 Personal Property Securities Act 1999 (“PPSA”)

16.1 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 present or after acquired Goods and/or collateral (account) – being a monetary obligation of the Client to ASCL for Goods that have previously been supplied and that will be supplied in the future by ASCL to the Client.

16.2 The Client hereby acknowledges that these Terms and Conditions of Trade constitute a security agreement which creates a security interest in favour of the Vendor:

(a) for all Goods previously supplied by the Vendor to the Client (if any); and

(b) for all of its present and after acquired Goods; and

16.3 The Client agrees to grant a "Purchase Money Security Interest" to the Vendor in respect to all amounts owed by the Client to the Vendor, as that term is defined in the PPSA.

16.4 Where Goods in respect of which title has not passed to the Client are sold by the Client in the ordinary course of business, the book debt created on the sale and the proceeds of sale when received shall be held by the Client for the Vendor in terms of section 45 of the PPSA:

(a) Where any proceeds of sale are placed in the Client’s bank account the funds in the Client’s bank account shall be deemed to be held on trust for the Vendor to the extent of proceeds of sale; and

(b) Where any payments are made from the Client’s bank account otherwise than to ASCL payment shall be deemed to have been made from all other funds in the Client’s bank account and not from funds held on trust for the Vendor; and

(c) The trust obligation imposed by this clause and the Vendor’s entitlements under the PPSA shall continue for so long as the Vendor is unpaid for all Goods supplied to the Client.

16.5 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 ASCL may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register; and

(b) indemnify, and upon demand reimburse, ASCL for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register or releasing any Goods charged thereby; and

(c) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods and/or collateral (account) in favour of a third party without the prior written consent of ASCL; and

(d) immediately advise ASCL of any material change in its business practices of selling Goods which would result in a change in the nature of proceeds derived from such sales.

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

16.7 If any of the Goods are incorporated in or used as material for other goods before payment is made ownership in the whole of the other goods shall be and remain with the Vendor until payment is made. The Vendor’s Security Interest in the Goods shall continue in the terms of section 82 of the PPSA.

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

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

16.10 The Client shall unconditionally ratify any actions taken by ASCL under clauses 16.1 to 16.9.

17 Security and Charge

17.1 In consideration of ASCL agreeing to supply the Works, the Client charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Client either now or in the future, to secure the performance by the Client of its obligations under these terms and conditions (including, but not limited to, the payment of any money).

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

17.3 The Client irrevocably appoints ASCL and each director of ASCL as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 17 including, but not limited to, signing any document on the Client’s behalf.

18 Defects

18.1 The Client shall inspect the Materials on delivery and shall within thirty (30) days of delivery (time being of the essence) notify ASCL of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Client shall afford ASCL 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 ASCL has agreed in writing that the Client is entitled to reject, ASCL’s liability is limited to either (at ASCL’s discretion) replacing the Materials or repairing the Materials.

18.2 Materials will not be accepted for return other than in accordance with 18.1 above, and provided that:

(a) ASCL have agreed in writing to accept the return of the Materials; and

(b) ASCL will not be liable for Materials which have not been stored or used in a proper manner.

19 Returns

19.1 ASCL has no obligation to accept the return of Materials for credit.

20 Warranties

20.1 Subject to the conditions of warranty set out in clause 20.2, ASCL warrants that if any defect in any workmanship of ASCL becomes apparent and is reported to ASCL within seven (7) years of the date of delivery or completion then ASCL will either (at ASCL’s sole discretion) replace or remedy the workmanship based solely on the outcome of the Materials Supplier’s inspection..

20.2 The conditions applicable to the warranty given by clause 20.1 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

(ii) failure on the part of the Client to follow any instructions or guidelines provided by ASCL or the Manufacturer; or

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

(iv) the continued use of any Materials 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 (see clause 29.9); or

(vi) failure of the cable at a point other than the location of the repairs undertaken by ASCL.

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

(c) in respect of all claims ASCL 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.

20.3 ASCL will provide to the Client supplier issued specification that will advise due care and maintenance required as soon as possession of the Works is taken by the Client. Failure to adhere to the condition of the supplier issued specification may invalidate the conditions of this warranty.

20.4 For Materials not manufactured by ASCL, the warranty shall be the current warranty provided by the manufacturer of the Materials. ASCL 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.

21 Consumer Guarantees Act 1993

21.1 The Client agrees that if they are acquiring Materials for the purposes of a business (as that term is defined in the CGA), to the extent permitted by law the provisions of the CGA will not apply to the supply of Goods by ASCL to the Client.

22 Intellectual Property

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

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

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

23 Overdue Payments

23.1 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 ASCL’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.

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

23.3 Further to any other rights or remedies ASCL may have under this Contract, if a Client has made payment to ASCL, 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 ASCL under this clause 23, 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.

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

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

(b) the Client has exceeded any applicable credit limit provided by ASCL; or

(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.

24 Cancellation

24.1 Without prejudice to any other rights or remedies ASCL 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 five (5) working days of receipt by the Client of such notice/s) then ASCL may suspend the Works immediately. ASCL will not be liable to the Client for any loss or damage the Client suffers because ASCL has exercised its rights under this clause.

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

24.3 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 ASCL as a direct result of the cancellation (including, but not limited to, any loss of profits).

24.4 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.

25 Privacy Policy

25.1 All emails, documents, images or other recorded information including Personally Identifiable Information (PII) as defined and referred to in clause 25.4 held or used by ASCL is considered confidential. ASCL acknowledges its obligation in relation to the handling, use, disclosure and processing of PII pursuant to the Privacy Act 2020 (“the Act”) including Part II of the OECD Guidelines and as set out in Schedule 8 of the Act and any statutory requirements where relevant in a European Economic Area “EEA” then the EU Data Privacy Laws (including the General Data Protection Regulation “GDPR”) (collectively, “EU Data Privacy Laws”). ASCL acknowledges that in the event it becomes aware of any data breaches and/or disclosure of the Client’s PII, held by ASCL that may result in serious harm to the Client, ASCL will notify the Client in accordance with the Act and/or the GDPR. Any release of such PII must be in accordance with the Act and the GDPR (where relevant) and must be approved by the Client by written consent, unless subject to an operation of law.

25.2 Notwithstanding clause 25.1, privacy limitations will extend to ASCL in respect of Cookies where transactions for purchases/orders transpire directly from ASCL’s website. ASCL 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 the Clients Personal Information such as:

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

(b) tracking website usage and traffic;

(c) reports which are available to ASCL when ASCL sends an email to the Client; so ASCL may collect and review that information (collectively “PII”)

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

25.4 The Client authorises ASCL or ASCL’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 (e.g. email, Facebook or Twitter 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 ASCL from the Client directly or obtained by ASCL 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.

25.5 Where the Client is an individual the authorities under clause 25.4 are authorities or consents for the purposes of the Privacy Act 2020.

25.6 The Client shall have the right to request ASCL for a copy of the PII about the Client retained by ASCL and the right to request ASCL to correct any incorrect PII about the Client held by ASCL.

26 Suspension of Works

26.1 Where the Contract is subject to the Construction Contracts Act 2002, the Client hereby expressly acknowledges that:

(a) ASCL 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 ASCL by a particular date; and

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

(b) if ASCL 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 ASCL 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 ASCL suspending Work under this provision;

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

26.2 If pursuant to any right conferred by this Contract, ASCL suspends the Works and the default that led to that suspension continues un- remedied subject to clause 24.1 for at least ten (10) working days, ASCL shall be entitled to terminate the Contract, in accordance with clause 24

27 Service of Notices

27.1 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; or

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

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

27.2 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.

28 Trusts

28.1 If the Client at any time upon or subsequent to entering into the Contract is acting in the capacity of trustee of any trust (“Trust”) then whether or not ASCL may have notice of the Trust, the Client covenants with ASCL 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; and

(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; and

(c) the Client will not without consent in writing of ASCL (ASCL 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; or

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

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

(iv) any resettlement of the trust property.

29 General

29.1 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 the Construction Contracts Act 2002 and/or by arbitration in accordance with the Arbitration Act 1996 or its replacement(s).

29.2 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.

29.3 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 Christchurch courts of New Zealand.

29.4 ASCL 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 ASCL of these terms and conditions (alternatively ASCL’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Works).

29.5 ASCL may licence and/or assign all or any part of its rights and/or obligations under this Contract without the Client’s consent.

29.6 The Client cannot licence or assign without the written approval of ASCL.

29.7 ASCL 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 ASCL’s sub-contractors without the authority of ASCL.

29.8 The Client agrees that ASCL 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 ASCL to provide Works to the Client.

29.9 Neither party shall be liable for any default due to any act of God, war, terrorism, pandemic, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.(referenced as Force-Majeure).

29.10 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.