Terms of Trade

1. APPLICATION

(a) Unless otherwise agreed in writing by Premium Restorations Limited (trading as NorthStar) (NorthStar), the following terms of trade (Terms) will apply to all building work carried out, or organised by, NorthStar on behalf of any customer (Customer), or the Customer's insurance company (as applicable) and to any Variations to such building work (as that term is defined in clause 6 below) (Building Works), which includes the provision of any materials and services by NorthStar as part of any Building Works.

(b) If there is any inconsistency between a provision of these Terms and any provision in any other written agreement between the Customer and NorthStar, the provisions will apply in the following descending order of priority:

1. i. the provisions in any written agreement between the Customer and NorthStar that are signed by NorthStar; and these Terms,
2. ii. provided that these Terms will prevail over any other terms and conditions stipulated by the Customer or included as part of any of the Customer's documentation unless those terms and conditions have been expressly acknowledged and agreed to in writing and signed by NorthStar.

(c) NorthStar may amend these Terms at any time. The amended Terms will apply in respect of any Building Works that are agreed to be undertaken by NorthStar and are commenced after the date the amended Terms are sent to the Customer in writing.

2. PRICE AND PAYMENT

(a) Subject to clause 2(b), the following clauses will apply in relation to any Building Works and any Variation (as that term is defined in clause 6 below) carried out for and on behalf of any Customer, at the Customer's request:

(1) the price payable for any Building Works supplied by NorthStar to the Customer (Price) will be: A) the price agreed between the parties in writing; or B) in the absence of any agreement between the parties, NorthStar's standard prices applicable for the Building Works at the time of the provision of the Building Works by NorthStar, provided that in the absence of any agreement between the parties as to the Price the Customer will not be liable to pay more than a reasonable price for the Building Works.

(2) NorthStar will tender a payment claim (Invoice) to the Customer for any portion of the Price which is payable under these Terms. The Invoice will be in a form which is compliant with section 20 of the Construction Contracts Act 2002.

(3) Any Price invoiced by NorthStar will be payable by the Customer: A) on or before the date (or dates) and in the manner agreed between the parties; or B) in the absence of agreement, by the 20th of the month following the date of any Invoice (Due Date), provided that NorthStar may, in its absolute discretion, require immediate payment of the Price in full without setoff or deduction.

(4) Any Price submitted by NorthStar to the Customer, or agreed between NorthStar and the Customer, is subject to alteration by NorthStar as a result of any Variation under clause 6, any increased costs of materials or labour, or any delay caused by anything beyond NorthStar's reasonable control under clause 13 of these Terms.

(5) If the Customer fails to pay the Price (or any revised price in accordance with clause 2(a)(iv) of these Terms) to NorthStar on or before the Due Date, NorthStar will be entitled to charge interest on any amount overdue for payment by the Customer from the Due Date until the date payment of the Price (or any revised price) is received in full, together with any actual costs (legal or otherwise) incurred by NorthStar for the enforcement of payment of such overdue amounts. Interest will be charged on any overdue amount at the rate of 12% per annum and will be compounded monthly.

(6) Unless expressly stated in writing, all amounts quoted by NorthStar will be deemed to exclude GST and all freight or delivery charges, which will be payable by the Customer at the same time as the Price and in addition to the Price.

(b) Notwithstanding clause 2(a) of these Terms above if NorthStar has been requested to undertake any Building Works and any Variation (as that term is defined in clause 6 below) for and on behalf of the Customer by the Customer's insurance company, then subject to NorthStar having reached its own contractual arrangements relating to the Building Works or any Variation with the Customer's insurance company, NorthStar and the Customer acknowledge that NorthStar will be responsible for agreeing the price of the Building Works and any Variation and arranging for the payment of the Building Works and any Variation directly with the Customer's insurance company.

3. COMMENCEMENT OF BUILDING WORKS

(a) Subject to the satisfaction of any Special Conditions agreed between NorthStar and the Customer in writing, NorthStar will commence the Building Works within a reasonable time after:

(1) the expected time specified for commencing any Building Works as set out in any agreement in writing between NorthStar and the Customer; and

(2) the issue of any building consent or other requisite consents required to undertake the Building Works (Commencement Date), and will thereafter proceed to carry out the Building Works with all reasonable diligence except as provided by clause 13 and clause 14 of these Terms

4. ACCESS TO SITE

(a) With effect from the Commencement Date the Customer will give NorthStar free and uninterrupted access to the location at which the Building Works are to be carried out (Site) until the completion of the Building Works by NorthStar.

(b) NorthStar will have possession and control of the Site at all times while undertaking the Building Works.

(c) Upon NorthStar having notified the Customer that the Building Works are complete the Customer will be deemed to have taken control of the Site provided that the Customer will give NorthStar free and uninterrupted access to the Site so it may undertake any remedial work that is necessary to complete the Building Works.

STANDARDS APPLICABLE TO BUILDING WORKS

(a) NorthStar will:

(1) carry out and perform the Building Works:

A) to the standard required or set out in any written agreement between NorthStar and the Customer (subject to any variations or amendments required or otherwise agreed in writing) and in accordance with any relevant building consent or other requisite consents required to undertake the Building Works;

B) in a diligent and competent manner and will complete the Building Works by the date agreed in writing between NorthStar and the Customer, or if no date is agreed in writing between NorthStar and the Customer as soon as reasonably practicable and within a reasonable time from the Commencement Date;

C) if the Building Works are residential building works and the implied warranties set out in sections 362I-362K of the Building Act 2004 apply, NorthStar will carry out the Building Works in accordance with the implied warranties and will otherwise carry out any Building Works:

• • in a proper and competent manner;
• • in accordance with any plans and specifications agreed between the parties in writing;
• • in accordance with any relevant any relevant building consent or other requisite consents required to undertake the Building Works;
• • in compliance with all laws and legal requirements; and
• • with reasonable care and skill;

D) if the Building Works are to be occupied after completion of the Building Works, the Building Works will be suitable for occupation upon completion;

E) if a specific purpose is made known to NorthStar and agreed to in writing by NorthStar, then the Building Works and all materials used in the Building Works will be:

• • reasonably fit for that purpose; or
• • be of such a nature or quality that the materials might otherwise be reasonably expected to achieve the specified purpose; and

(2) ensure that all materials used in any Building Works will be:

A) suitable for the purpose for which they will be used; and unless otherwise agreed in writing between NorthStar and the Customer, new.

(b) Except as expressly set out above, or otherwise represented and warranted by NorthStar in writing, then to the maximum extent permitted by law, NorthStar makes no other representation, warranty or undertaking (whether express or implied) in relation to any Building Works (including any warranty as to the merchantability, quality, or condition of any materials, compliance with the description of the materials, the suitability or fitness of the materials for the Customer's purposes, or the use of the materials), provided that:

(1) where the Building Works constitute goods or services to which the Consumer Guarantees Act 1993 (CGA) applies, nothing in this cause will operate to limit any rights of the Customer under the CGA, except where the Customer is acquiring, or holds itself out as acquiring, any goods or services for the purposes of a business in terms of section 43(2) of the CGA, in which case the Customer will not assert or attempt to assert any rights or claims against NorthStar under the provisions of the CGA; and

(2) nothing in this clause will otherwise operate to exclude the application of the Building Act 2004.

(c) The Customer acknowledges that except as expressly made known to NorthStar and agreed to in writing between NorthStar and the Customer, the Customer is not relying on NorthStar's skill or judgment as to the suitability or otherwise of the Building Works for any purpose.

6. ALTERATIONS AND VARIATIONS

If any alteration to the Building Works (Variation) is:

(a) required as a condition to the granting of any building consent, or other consent required to undertake the Building Works ;

(b) required as a result of changes to any applicable law relating to any Building Works;

(c) requested by the Customer and otherwise agreed to between the Customer and Northstar; or (d) directed by the Customer's insurance company in writing to NorthStar,

then, NorthStar will, subject to having reached agreement with the Customer and/or the Customer's insurance company (as applicable) regarding the extent of any Variation and who will be responsible for payment of any additional costs as a result of the Variation under clause 2(a) or 2(b) above as applicable, carry out any required or requested Variation, provided that where the Variation results in an additional cost being incurred by NorthStar in relation to the Building Works, NorthStar will be entitled to:

(e) be paid its reasonable additional costs incurred in carrying out the Variation; and

(f) an extension of the time to any agreed date for completion as a result of such Variation.

7. SURVEY PEGS

Unless expressly agreed in writing by NorthStar and the Customer, the Customer will be responsible for establishing and marking all site boundary pegs, offset pegs, and datum pegs by a registered surveyor employed by the Customer. NorthStar will take reasonable care to maintain and protect all boundary pegs.

8. RISK AND TITLE OF MATERIALS

(a) Unless otherwise agreed in writing by NorthStar and the Customer, title to any materials supplied by NorthStar as part of any Building Works will not pass to the Customer until NorthStar has received payment in full of the Price (or any revised price determined in accordance with these Terms).

(b) Until title to the materials passes to the Customer under clause 8(a), the Customer will:

1. (1) hold the materials as a bailee only;
2. (2) clearly designate the materials as NorthStar's property and store the materials in such a way that they are identified as NorthStar's property; and
3. (3) maintain the materials in good order and condition and preserve the materials in their present form.

(c) Without prejudice to NorthStar's other rights and remedies, NorthStar will be entitled to retake possession of any materials that are not affixed to the Site at any time prior to payment in full being received for those materials. The Customer grants NorthStar an irrevocable right and authority to enter onto any place where such materials are situated, or thought to be situated at any time and to take and resell the materials and to retain the proceeds from such sale. Any shortfall arising from such sale will be a debt due and owing to NorthStar by the Customer.

9. PERSONAL PROPERTY SECURITIES ACT 1999 (PPSA)

(a) The Customer acknowledges that the retention of title set out in clause 8 above creates a security interest in all materials supplied by NorthStar to the Site which is registrable on the Personal Property Securities Register (PPSR) and that NorthStar may register a financing statement on the PPSR to perfect its interest in the materials delivered, or to be delivered, to the Customer.

(b)The Customer must do all such things and execute all such documents as NorthStar may require to ensure that NorthStar is able to perfect its security interest(s) in the materials under the Personal Property Securities Act 1999 (PPSA) and will immediately notify NorthStar of any change in the Customer's name.

(c) The Customer waives its right to receive a copy of any verification statement(s) under the PPSA and agrees that as between NorthStar and the Customer:

(1) the Customer will have no rights under (or by reference to) sections 114(1)(a), 116, 117(1)(c), 119, 120(2), 121, 125, 126, 127, 129, 131, 132, 133 and 134 of the PPSA; and

(2) where NorthStar has rights in addition to those in Part 9 of the PPSA, those rights will continue to apply.

10. INSURANCE OF BUILDING WORK AND SITE

Unless expressly agreed in writing by NorthStar and the Customer, the Customer acknowledges and agrees that despite possession and control of the Site having been granted to NorthStar, the Customer will be responsible for arranging and maintaining adequate insurance in the name of the Customer and NorthStar against any loss or damage to the Customer's existing structures situated on the Site or to the Customer's contents. Such insurance must be for the full replacement value of all existing structures and contents together with the value of the Building Works and any professional fees and similar costs, demolition, disposal and preparation for replacement work necessarily incurred following loss or damage, and any increased construction costs incurred as a result of any loss or damage.

11. CLAIMS IN RELATION TO BUILDING WORKS

(a) Sections 362I to 362K of the Building Act 2004 imply certain warranties which apply in relation to any residential building agreement. If such an implied warranty is breached by NorthStar, the remedies and processes described in the Building Act 2004 will apply.

(b) However, without limiting the warranties contained in sections 362I to 362K of the Building Act 2004, any claims by the Customer that any Building Works supplied either do not correspond to any written agreement between NorthStar and the Customer, or are defective, which are not related to the implied warranties under the Building Act 2004 must be made in writing to NorthStar within 40 working days after completion of the Building Works by NorthStar.

(c) If no claim is received by NorthStar within the 40 working day period the Customer will be deemed to have irrevocably accepted the Building Works.

(d) If a claim is made by the Customer in accordance with clause 11(b) above, subject to verification by NorthStar, NorthStar will either repair or replace any materials or re-perform any Building Works provided to the Customer in NorthStar's sole discretion within a reasonable period (or will otherwise provide a refund of a relevant portion of the Price paid by the Customer in relation to the Building Works), provided that nothing in the clause 11 will affect the requirement to remedy any defective works within 1 year of completion as stated in section 362Q of the Building Act 2004.

12. LIMITATION OF LIABILITY

(a) Notwithstanding any contrary provision contained in these Terms or elsewhere, the maximum liability of NorthStar to the Customer, or to any third party, including the Customer's insurance company, under or in connection with these Terms or in relation to any Building Works will be limited at NorthStar's sole option to:

(1) replacement or re-performance of the Building Works; or

(2) a refund of any amount actually paid by the Customer, or the Customer's insurance company, for the Building Works.

(b) Nothing expressed or implied in these Terms will confer any liability on NorthStar for any consequential, indirect or special loss, damage, cost or expense suffered or incurred by the Customer as a direct or indirect result of:

(1) a breach by NorthStar of any of its obligations under these Terms; or

(2) NorthStar having complied with any lawful instructions issued by the Customer's insurance company (if applicable).

13. CANCELLATION OR SUSPENSION OF BUILDING WORKS

Notwithstanding any other provision set out in these Terms, NorthStar reserves the right to cancel or suspend the provision of any Building Works in its sole discretion at any time by written notice to the Customer and/or the Customer's insurance company (as applicable) if:

(a) the Customer defaults on any of its obligations under these Terms or under any other arrangement between NorthStar and the Customer relating to the Building Works (including, without limitation, the payment of any amount owing to NorthStar, the obligation to obtain any building consent or other consent required to undertake the Building Works, or to make the Site available to NorthStar) and the Customer, , fails to remedy or rectify that breach despite having been requested to do so by NorthStar by not less than 3 working days prior written notice;

(b) the Customer's insurance company defaults on any of its obligations to NorthStar under any commercial arrangements between NorthStar and the Customer's insurance company;

(c) any force majeure event occurs that is beyond the reasonable control of NorthStar;

(d) the parties are unable to agree on any Variation or any additional costs payable to NorthStar as a result of such Variation; or

(e) NorthStar is instructed by the Customer or the Customer's insurance company (as applicable) to suspend or cease any Building Work, or

(f) any Dispute (as that term is defined in clause 15 below) arises between NorthStar and the Customer in accordance with clause 15,

provided that Northstar will otherwise be entitled to charge the Customer, or the Customer's insurance company (as applicable) for any additional costs incurred by NorthStar as a result of any suspension or cancellation of the provision of any Building Works under clauses 13(a) to 13(e) above as a result.

14. EXTENSIONS OF TIME

(a) NorthStar will endeavour to complete the Building Works by the expected completion date agreed between NorthStar and the Customer in writing. However, NorthStar will be entitled to an extension of time if:

(1) the parties agree in writing to such an extension; or

(2) any Variation occurs; or

(3) any event under clause 13 occurs which is outside of the control of NorthStar and causes the Building Works to be delayed.

(b) If NorthStar believes it is entitled to such an extension of time (and if such an extension has not already been agreed in writing), NorthStar will (in its absolute discretion) determine the new expected date for completion taking into account the length of the extension of time it is entitled to, and will advise the Customer and the Customer's insurance company (as applicable) of the revised expected completion date.

15. DISPUTES

(a) If at any time there is a genuine dispute relating in any way to the Building Works or any agreement between the parties (Dispute), either party give written notice (Dispute Notice) to the other party specifying the subject matter of the Dispute and requiring that the parties meet within 10 working days after delivery of the Dispute Notice, to attempt to resolve the Dispute (Dispute Resolution Meeting).

(b) If the parties fail to resolve the Dispute at the Dispute Resolution Meeting, or if a party fails or refuses to attend the Dispute Resolution Meeting within the 10 working day period referred to in clause 15(a), or at the time and venue agreed in writing between the parties, the parties will immediately be deemed to have submitted the Dispute to mediation by a single mediator agreed upon in writing by them or (if they are unable to agree on a mediator within 5 working days after the submission to mediation) nominated by the President for the time being of the New Zealand Law Society. In the event of any submission to mediation:

1. (1) the mediator will not be acting as an expert or as an arbitrator;
2. (2) the mediator will determine the procedure and timetable for the mediation; and
3. (3) the parties will share equally the cost of the mediation,

provided that nothing in this clause will apply to any dispute between the Customer and the Customer's insurance company or in relation to agreeing the price of any Variation under clause 6 of these Terms (c) No party may issue any legal proceedings (other than for urgent interlocutory relief) relating to any Dispute, unless that party has first taken all reasonable steps to comply with this clause, provided that nothing in this clause will prevent either party from commencing an arbitration under the Construction Contracts Act 2002.

16. USE OF INFORMATION

The Customer acknowledges that:

(a) any information about the Customer provided at any time to NorthStar may be used by NorthStar for any purpose connected with NorthStar's business including (but not limited to) direct marketing, debt collection and credit reporting or assessment;

(b) NorthStar is authorised to provide such information to any external agency or party for credit information and assessment purposes and that agency or party is authorised by the Customer to use and continue to use such information as part of its business services; and

(c) NorthStar and any external agency or party may retain and/or use such information for as long as they see fit.

17. GENERAL

(a) All notices required to be given under or in connection with these Terms will be given in writing and delivered to the address agreed between the parties in writing or such other address notified in writing by one party to the other from time to time. All notices will be deemed to take effect on the day the notice is delivered to the address in question, provided that any notices delivered after 5pm on any working day will be deemed to be received at 9am on the following working day.

(b) These Terms are governed by the laws of New Zealand and the parties submit to the exclusive jurisdiction of the New Zealand courts in respect of all matters relating to these Terms.

(c) NorthStar and the Customer each acknowledge that these Terms and any agreement agreed in writing between the parties contain the entire understanding and agreement between them and that there have been no representations made by either party to the other except as expressed in these Terms.

(d) If any provision of these Terms is found to be invalid, void, illegal or unenforceable, that provision will be severed from these Terms but will not affect the validity, existence, legality and enforceability of the remaining provisions set out in these Terms or any agreement agreed in writing that incorporates these Terms

(e) The Customer agrees that it will, unless otherwise agreed in writing by the parties, obtain all relevant building or other consents that may be required for the purposes of the Building Works.