Terms of Trade

Rainaway Spouting on the Spot – Terms & Conditions of Trade

1. Application
1.1 The following terms of trade (“Terms”) shall apply to products and services (“Services”) purchased by you from [Franchisee Name] (“us, we, our”). These Terms will prevail if there is any inconsistency with any other document.
1.2 You agree that the franchisor of the Spouting on the Spot System, currently, Rainaway Systems Limited (“the Franchisor”) has no liability under these Terms or in relation to the Services provided by us.

2. Quotes and Estimates
2.1 These Terms apply to any quote or estimate we give you and must be read together with any such quote or estimate. Unless otherwise expressly recorded in writing, any pricing information we provide to you shall be deemed to be an estimate only and based on information supplied by you.
2.2 You are solely responsible for the accuracy of any information upon which a quote or estimate is based and we are entitled to rely on such information.
2.3 Any changes to the quantities, measurements or specifications or nature of the Services required subsequent to any quote or estimate provided by us or any inaccuracies or misstatements in the information provided to us, shall constitute a variation and be the subject of a separate invoice.
2.4 If we provide an estimate, we are not bound to supply the Services at the estimated price and you are liable for the actual price of any Services purchased as invoiced by us.
2.5 We may at the time of supply substitute a similar products or materials to that ordered / estimated / quoted.

3. Authorisation
3.1 You agree that we have no obligation to enquire into the authority of any person placing orders on your behalf. It is your risk and responsibility to obtain every necessary or prudent authorisation (including licences, permits and consents) in relation to the Services we supply to you.

4. Commencement and completion
4.1 You acknowledge that any estimates as to time frames for commencement and completion of the Services are approximate only. We will use all reasonable endeavours to ensure that the Services are commenced and completed within the time frame specified but are not liable for any delay or failure to do so.

5. Price
5.1 Unless otherwise stated, all prices, quotes and estimates are exclusive of GST.
5.2 We reserve the right to change any quote or estimate we provide you:
(a) if additional Services are required due to discovery of hidden or unidentifiable difficulties (including, but not limited to, poor weather conditions, limitations to accessing the site where the Services are to be provided (“the Site”), availability of machinery, safety considerations, prerequisite work by any third party not being completed, obscured building defects, change of design, hidden pipes and wiring in walls etc) which are only discovered on commencement of the Services; and/or
(b) in the event of any increases in the cost of labour or materials which are beyond our control.

6. Payment
6.1 Payment may be made by cash, electronic/on-line banking, credit card (plus a surcharge of up to two percent (2%) of the Price), or by any other method we agree to.
6.2 You agree to the following:
(a) To make payments on the dates specified in our quote or estimate (in full and in cleared funds);
(b) If we require you to pay a deposit this must be paid immediately on acceptance of the estimate or quote and is non-refundable.
6.3 Payment of any amounts owed to us must be free of any counterclaim, set-off, deduction or any other claim whatsoever.
6.4 Further to any other rights or remedies we may have under these Terms, if you have made payment to us by credit card, and the transaction is subsequently reversed, you will be liable for the amount of the reversed transaction, in addition to any further costs incurred by us under this clause where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to your obligations under these Terms.

7. Your Obligations and Risk
7.1 You must strictly comply with any instructions, direction, recommended uses, applications and any cautions and/or warnings (“our Instructions”) we provide you in respect of the Services.
7.2 We will not be liable for any direct or indirect damage, economic loss of any kind or any other loss or expenses caused by or contributed by your failure to comply with our Instructions.
7.3 You acknowledge that you are solely liable for:
(a) If the location where the Site is tenanted or leased – ensuring that any tenant or lessee of the Site has consented to us attending the Site for the purpose of the Services or that we are provided with the tenant’s/ lessee’s contact details so that we can arrange access directly with the tenant/ lessee;
(b) ensuring the Site is readily accessible at the time we have agreed to attend the location to perform the Services;
(c) any extra costs as a result of any incorrect information supplied by you.
7.4 You agree that we are not liable for any loss or damage to the Site or any building located on the Site (including, without limitation, damage to pathways, driveways and concreted or paved or grassed areas) unless due to our negligence.
7.5 You will ensure that:
(a) you obtain (at your expense) all licences and approvals which are required for the Services; and
(b) the Site complies with any work health and safety laws relating to building/ construction sites and any other relevant safety standards or legislation.

8. Risk
8.1 Risk of damage to or loss of any products which are provided as part of the Services (“the Goods”) passes to you on delivery to the Site and you must ensure that the Goods are insured prior to the date they are delivered to the Site.
8.2 If any of the Goods are damaged or destroyed following delivery to the Site but prior to ownership passing to you, we are entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by us is sufficient evidence of our rights to receive the insurance proceeds without the need for any person dealing with us to make further enquiries.
8.3 You warrant that the structure of any building or equipment in or upon which the Goods are to be installed or erected is sound and will sustain the installation and work incidental thereto and we are not liable for any claims, demands, losses, damages, costs and expenses howsoever caused or arising in connection with the installation and work incidental thereto.
8.4 You acknowledge that we are only responsible for any Goods that are supplied or replaced by us and that in the event that other parts subsequently fail, you agree to indemnify us against any loss or damage to the Goods, or caused by the Goods, or any part thereof howsoever arising.

9. Warranty
9.1 If you are not obtaining the Services for the purposes of a business (refer clause 16 below) then you will be covered by the guarantees in the Consumer Guarantees Act 1993 and the Warranty in clause 9.2 is in addition to your rights under that Act.
9.2 Subject to the conditions of warranty set out in clause 9.3 we warrant that ‘Spouting on the Spot’ installation completed by us at your Site (“the SOS Installation”) will be leak free for ten (10) years from the date of SOS Installation, and that if any defect which results in leaks becomes apparent and is reported to us within ten (10) years of the date of completion of the SOS Installation (time being of the essence) then we will either (at our sole discretion) replace the Goods or remedy the workmanship (as required) (“the Warranty”).
9.3 The conditions applicable to the Warranty 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 your part to properly maintain the SOS Installation (such maintenance requirements shall include, but not be limited to, the six-monthly removal of any leaves and debris in the guttering, followed by the flushing out of any residue, and the six-monthly washing of undersides not naturally washed by rainwater); or
(ii) any pre-existing condition or defect in or near the area where the SOS Installation is located or in any equipment or facilities installed or located in or near such area (e.g., existing wall coverings, rotten materials); or
(iii) prior and/or subsequent work or act performed by you or any third party; or
(iv) failure on your part to properly maintain or clean/ wash the location (including the roof and walls) where the Services were performed/ installed; or
(v) failure on your part to follow our Instructions; or
(vi) fair wear and tear (including, but not limited to, weathering, chalking or fading), any accident (including damage by trees and/or ladders), any exposure to chemicals and/or corrosives, or any act of God or other cause beyond our reasonable control; or
(vii) failure to promptly notify us of any defect and to allow us access to the location to promptly rectify any issues.
(b) the Warranty shall cease and we will thereafter in no circumstances whatsoever be liable under the terms of the Warranty if the SOS Installation is repaired, altered or overhauled without our consent;
(c) the Warranty applies only to you and is not transferable, except if you are a non-resident builder, in which case the Warranty may be transferred to the first purchaser of the property where the Spouting on the Spot installation is located;
(d) in respect of all claims, we are not liable to compensate you for costs, losses or any delay in either replacing or remedying the workmanship or in properly assessing your claim.
9.4 For Goods which form part of the SOS Installation and which are not manufactured by us, the warranty shall be the current warranty provided by the manufacturer of the Goods. We are not bound by nor are we responsible for any term, condition, representation or warranty other than that which is given by the manufacturer of those Goods.

10. Limitation of Liability
10.1 Subject to clause 9 and our obligations under the Consumer Guarantees Act 1993 which are not excluded under clause 16, we will not be liable for any direct or indirect loss or damage, including without limitation; economic loss, loss of profits or savings (or for any indirect or consequential loss or damage), however caused, arising out of or in connection with the supply of Services including without limitation as a result of the following:
(a) delays or termination of the Services due to any circumstances outside our control including as a result of weather conditions, inability to access the location where the Services are to be performed, restrictions imposed by the Government or other authority, delay or cessation in the supply of materials we require to complete the Services, strikes, lockouts, war or violence; or
(b) incorrect information supplied by you.
10.2 Subject to clause 9 and our obligations under the Consumer Guarantees Act 1993 which are not excluded under clause 16, our liability in respect of all claims for loss damage or injury arising from a breach or our obligations under these Terms or from any act or omission by us is limited in each case to the lesser of (as determined by us):
(a) Replacement or repair or resupply of the Services; or
(b) Payment of the reasonable cost of replacing or repairing or supplying the Services.; or
(c) The price of the affected Services.
10.3 All claims must be made in writing and are subject to verification or acceptance by us. Subject to clause 9, no claim for any loss, damage or injury arising out of the supply of the Services by us, may be brought more than 3 months after the date you become aware or reasonably ought to have been aware of the circumstances giving rise to the claim.

11. Your Indemnity
11.1 You will indemnify us:
(a) for any physical, direct and indirect damage, economic loss or other loss or cost or expenses (including legal expenses on a solicitor and client basis, internal administration fees, collection agency costs and bank dishonour fees), and will fully indemnify us against any claims or proceedings against us to the extent caused or contributed by you (or any of your agents or employees) or arising from a breach of these Terms; and
(b) for the cost of the Services and our time if we are unable to perform the Services due to circumstances within your control e.g., inability to access the Site to perform the Services at the agreed time.

12. Intellectual Property
12.1 You agree that any intellectual property rights arising out of the performance of the Services are and shall remain our property.

13. Termination
13.1 If any of the events set out in clause 13.2 occur, we may without prejudice to and in addition to any other rights or remedies we may have, exercise all or any of the following rights:
(a) Delay the supply or performance of the Services until the matter is resolved to our satisfaction;
(b) Suspend or cancel in whole or in part these Terms or any other contract between us by written notice to you;
(c) Recover from you all amounts for any damage, losses, cost or expenses including actual legal costs, debt collection costs and expenses arising from your default or non-payment;
(d) Charge and you must pay default interest at the rate of 2.5% per month (calculated on a daily basis) until all amounts owed to us are paid in full including actual and all legal costs and other costs and expenses incurred by or on behalf of us in enforcing or defending all or any of our rights.
13.2 The events referred to in clause 13 .1 are:
(a) Breach of your obligations (including payment obligations) under these Terms or any other contract with us;
(b) You entering into any negotiations for any scheme of arrangement, composition or compromise with your creditors;
(c) You, in our opinion, being unable to pay your debts (including contingent liabilities) as they fall due;
(d) You passing any resolution to liquidate or becoming the subject of any liquidation proceedings;
(e) You have a receiver or a receiver or manager appointed over the whole or part of your property or undertaking; or
(f) You become bankrupt or commit an act of bankruptcy.

14. Ownership
14.1 Ownership of any products which form part of the Services (“Goods”) does not pass to you until they are fully paid for.
14.2 You agree that:
(a) You hold the benefit of any insurance relating to the Goods on trust for us and must pay us the process of any insurance if the Goods are lost, damaged or destroyed.
(b) You irrevocably authorise us to enter the Site to recover possession of any Goods not paid for in accordance with these Terms.

15. Personal Property Securities Act 1999 (“PPSA”)
15.1 You acknowledge that these Terms create a security interest in any Goods we supply to you as security for your obligations to us under these Terms and this security interest is registerable in the Personal Property Securities Registry.
15.2 You must sign and deliver any documents and do anything else that we require to ensure that we have a perfected first ranking security interest in the goods under the Personal Properties Securities Act 1999 (“PPSA”).
15.3 You waive any right to receive a copy of a verification statement under the PPSA and agree to the extent permitted by law that:
(a) Where we have rights in addition to, or existing separately from those in Part 9 of the PPSA, those rights will continue to apply and in particular will not be limited by section 109 of the PPSA;
(b) Sections 114(1)(a), 133 and 134 of the PPSA will not apply; and
(c) You will have none of the rights referred to in sections 116, 117(1)(c), 119, 120(2), 125, 129 and 131 of the PPSA and you waive your rights to object under section 121 and to redeem under section 132.

16. Consumer Guarantees Act 1993 and Fair Trading Act 1986
16.1 You agree that where the Services are being supplied for the purposes of the business that sections 9, 12, 13, 14 (1) of the Fair Trading Act 1986 and the provisions of the Consumer Guarantees Act 1993 will not apply.
16.2 If the Consumer Guarantees Act 1993 applies (i.e. the Services are not supplied for the purposes of a business) any provisions of these Terms which conflict with the Act shall not apply to the extent of the conflict.

17. Warranties
17.1 Subject to the Warranty provided by us under clause 9, all statutory, express or implied warranties by us including without limitation the implied warranties of merchantability and fitness for any particular purpose are expressly excluded (to the extent permitted by law).

18. Credit
18.1 We may grant or decline to grant credit to you (at our sole discretion). We may in our sole discretion, at any time and without reason or notice to you and or the Guarantors and without prejudice to any other right we have in law or equity:
(a) Increase or decrease the amount of credit supplied to you;
(b) Terminate or suspend any credit arrangement we have with you in which case all monies owing by you to us shall be immediately due; and
(c) Request additional security from you on terms satisfactory to us provide proceeding further with the Services.

19. Privacy Information
19.1 You agree that any information about you provided to us may be used by us and the Franchisor, at any time for any purposes connected with their businesses including but not limited to direct marketing, debt collection and credit reporting or assessment. You authorise us to provide such information to any external agency or any party for credit information and assessment purposes and that agency or party are hereby authorised to use and continue to use such information as part of their business services. Any personal information is held by us on cloud based software and you have certain right of access to your personal information under the Privacy Act 2020. If you wish to access your personal information, please send an email to [email protected] q1`qqwcan

20. Unsolicited Electronic Messages Act 2007
20.1 You consent to receiving emails and other communications from us and or the Franchisor regarding our Services.

21. Construction Contracts Act 2002
21.1 You expressly acknowledge that:
(a) we have the right to suspend the Services within five (5) working days of written notice of our intent to do so if a payment claim is served on you, and:
(i) the payment is not paid in full by the due date for payment and no payment schedule has been given by you; or
(ii) a scheduled amount stated in a payment schedule issued by you in relation to the payment claim is not paid in full by the due date for its payment; or
(iii) you have not complied with an adjudicator’s notice that you must pay an amount to us by a particular date; and
(iv) we have given you written notice of our intention to suspend the carrying out of the Services.
(b) if we suspend the Services under this clause, we:
(i) are not in breach of contract; and
(ii) are not liable for any loss or damage whatsoever suffered, or alleged to be suffered, by you or by any person claiming through you; and
(iii) are entitled to an extension of time to complete the Services; and
(iv) keep our rights under these Terms including the right to terminate; 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; and
(v) the exercise of that right does not affect any rights that would otherwise have been available to us under law.

22. Personal Guarantee
22.1 In consideration for us agreeing to provide the Services to you at your request, the director or trustees signing these Terms (“the Guarantors”) also sign these Terms in their personal capacity and jointly and severally undertake as principal debtors to us the payment of any and all moneys owned by you to us and agree to indemnify us on demand against any breach by you of these Terms and all costs (including all legal costs) incurred by us as a result of such breach.

23. Security and charge
23.1 To secure performance of your obligations, monetary and otherwise, under these Terms, you and the Guarantors (if any) jointly and severally and irrevocably:
(a) grant a security interest to us over all of your estate and interest, whether such estate or interest exists now or arises in the future, in any personal property, other property and any other asset capable of being charged;
(b) grant a mortgage and/or charge over all of your estate or interest in any land, whether such estate or interest exists now or arises in the future, with such mortgage to have deemed incorporated therein the terms and conditions contained in the mortgage general terms and conditions registered pursuant to section 209 of the Land Transfer Act 2017 under memorandum number 2018/4346.
23.2 In addition, both you and/or the Guarantors acknowledge and agree that we (or our nominee) are entitled to lodge a caveat on any property, for the purpose of this clause 22, which shall be released once all payments and other monetary obligations payable under these Terms have been fully paid to us.
23.3 To give effect to the provisions of this clause 23 you and the Guarantors irrevocably appoint us as your and the Guarantors’ attorney to execute and/or register any mortgage and/or charge for the purpose of securing and exercising our rights under this clause.
23.4 In this clause 23, the terms “security interest,” “personal property,” and “other property” have the meanings given to them in the Personal Property Securities Act 1999.

24. General
24.1 You agree that time is of the essence in respect of your obligations to us.
24.2 We will not be prevented from enforcing any of our rights under these Terms because on an earlier occasion we did not enforce those rights.
24.3 We may license or sub-contract all or part of our rights and obligations under these Terms without your prior consent.
24.4 All notices to be given pursuant to these Terms will be given in accordance with sections 185 to 189 of the Personal Properties Securities Act 1999.
24.5 While you are not entitled to assign your rights under these Terms we may. You must give us at least 14 days’ notice of any proposed change or ownership and/or any other change in your details.
24.6 Any amendment to these Terms must be in writing. We may amend these Terms at any time without your consent, any such amendment will take effect from the date we notify you and you will be taken to have accepted the amendment if you make a further request for us to provide the Services to you.
24.7 You agree that we may issue any proceedings in respect of these Terms in any court that suits us. The law that governs these Terms is New Zealand law.
24.8 Any provision of these Terms that is held to be invalid or unenforceable for any reason shall be severed from and shall not affect the remaining provisions of these Terms.
24.9 You agree that these terms express the entire understanding between us and that there have been no representations made by or on behalf of us that have been relied upon by you that are not contained in these terms.