Applicable Terms and Acceptance of Order
These Terms of Trade between THERMO TECH AUCKLAND LIMITED (the “Company”) and the Customer (the “Customer”) shall apply to all orders for air conditioning and refrigeration units, parts and accessories (“Goods”) and workmanship for installation build, maintenance or breakdown repair (“Services”) accepted by the Company from the Customer and that these terms and conditions shall prevail and take precedence over any document or oral message from the Customer. Where the Company fails to enforce any terms or conditions under this contract the Company will not be deemed to have waived these rights with respect to any term or condition or right.
Personal Property Securities Act (PPSA)
The Customer and the Company shall acknowledge that these Terms of Trade constitute a Security Agreement as defined by the Personal Property Securities Act 1999 (“PPSA”). For the purposes of the PPSA, Collateral shall include all and any Goods supplied by the Company and the proceeds from the sale of all Goods. The Customer shall also agree not to allow any person to file a finance statement over any of the Collateral secured by this Security Agreement without the prior written consent of the Company.
The Customer also acknowledges that:
- these terms and conditions are a security agreement for purposes of section 36 of the PPSA and,
- a security interest is taken in all Goods previously supplied to the Customer by the Company and in any and all Goods that will be supplied in the future by the Company to the Customer during the continuance of the parties relationships.
The Security Agreement is a continuing security and will operate irrespective of any intervening payment or settlement of account until the Company has signed a release. The security interest granted in the Collateral has the same priority in relation to all and any Goods supplied to the Customer by the Company at any time.
The Customer shall inform its creditors of the terms upon which it buys Goods from the Company including that the Company may create and register a Purchase Money Security Interest over the Goods under the Personal Property Securities Act and that the Customer agrees to waive the right to receive a verification statement for purposes of s.148 of the Act and shall also inform any Trustee in Bankruptcy or Liquidator of the Customer or any Receiver of the Customer’s business or assets of the rights of the Company and title to the proceeds of sale.
Tenders, Quotations and Price
The Company shall confirm the price of Goods and Services in its price list or as a tender or quotation and supplied at an hourly rate or at a quoted fixed cost and the Customer shall confirm acceptance of the price or tender or quotation by signing the tender or quotation or providing an order.
Tenders shall allow +/- variation in the final price that allows for discovery and no tender or quotation shall constitute an offer unless signed by the Company and the Company may withdraw any tender or quotation before the Customer’s signed acceptance. The tender or quotation price will be exclusive of GST and shall be valid for a period of thirty (30) days. Freight, insurance, and other handling charges shall be the responsibility of the Customer.
The tender or quotation and price of Goods and Services may also include subcontractors or agents used by the Company to undertake the work on behalf of the Company. The Customer shall agree that employees and agents of the Company used in the supply of Services are the property of the Company for the term of this contract and the Customer further agrees to pay the full amount of the contract price if the Customer interferes with the Company use of its employees or agents or cancels the contract and rehires the Company’s employees or agents to complete the contract.
The description given of the Goods in any written or published form or tender or quotation has been given by way of identification only to assist the Customer in making an offer to the Company and the use of such information does not constitute this contract as a sale by description and binding on the Company, until the Company has accepted an offer from the Customer and has confirmed and signed a tender or quotation listing a Description of Conditions which is declared as a sale by description and the signed tender or quotation and warranty shall be part of this contract. The Company may withdraw any written document before the Company accepts an offer from the Customer.
Services for Removal or Preparation of Site or Installation.
The price of Services for removal of redundant parts or equipment in order to prepare the site for the Goods and traveling time will be quoted by the Company as an estimate where removal or installation is required and the final price shall be the invoice charged to the Customer that may be varied or altered if the Company provides substantial evidence of any cost increases outside of its control, including the Customer ordering Services outside of normal working hours or delays caused by the Customer or its agents where the Company has presented itself to do the work agreed, or where the Company discovers or encounters problems of adaptation or compatibility with existing plant or equipment or utilities not previous known and where the Customer has not notified the Company and the Customer shall accept these costs as the final price. Cost increases will occur where any hazardous material must be removed, power or utility lines altered, or remaining plant or equipment to be adapted and not otherwise known in or on the property site. In such cases the Company will cease supply of Goods and Services and provide the Customer with an estimate of costs for the additional supply and the Customer has the option to pay for supply completed to the time of discovery and terminate the contract OR accept the additional costs to complete the order as a result.
No cancellation for Supply and Build (Make to Order Goods)
Upon acceptance of a Company quotation by the Customer or Customer order to the Company for Goods that are designed or procured specifically for the Customer (meaning non standard supply and build) cannot be cancelled without the Customer paying the full cost of the manufacture or procurement of the Goods to the time of cancellation.
Payment shall be made according to the terms of the order confirmed in the quotation by:
credit card or bank card remittance authority left with the Company, OR
50% deposit with the order for Goods AND
50% when delivery of Goods is completed, OR
full payment for Goods within seven (7) days of receipt of invoice OR other terms that shall be declared in the quotation OR
unless the Company has agreed to provide credit to the Customer in which case payment shall be made by the 20th of the month following date of invoice, which terms shall be declared in the Company quotation or confirmation of order. The Customer shall make payment of all amounts due to the Company without any delay or deduction whether by way of set-off or counterclaim even under dispute of the invoice.
The Customer shall agree that the Company has sole discretion to apply payments from the Customer to any transaction or Company invoice notwitstanding that the Customer may have applied the payment to a particular transaction or invoice.
Interest for Late Payment
The Company may charge the Customer interest on any monies outstanding under this contract on a daily basis at a rate equal to 5% above the Company’s bank indicator lending rate. Interest is payable from the date payment was due until the date the Company receives payment. The Company’s right to charge interest is without prejudice to the Company’s other rights or remedies for the Customer’s default in failing to pay on the due date.
The Customer shall agree that risk in the Goods shall pass to the Customer once the Goods are delivered and Services completed.
Delivery by the Company to the premises of the Customer shall also constitute delivery and the Customer shall agree that risk in the Goods shall pass to the Customer once the Goods are deliverd. The Customer agrees that the Company shall not be responsible for the validity of the person accepting the Goods on behalf of the Customer at the time of delivery.
Goods that are finished items but only part of an order may be delivered in instalments at the Company’s discretion and in such case each delivery will be regarded as a separate contract and any Goods delivered shall be paid by the Customer in accordance with the terms of payment.
The Customer shall accept that any commissioning, testing or acceptance procedure required by the Customer that has been successfully completed by the Company to the Customer’s satisfaction, the Customer shall not make any claim against the Company that supply does note meet the Customer’s requirements with regard to the completion of the order.
If witness testing is required as defined in the Quotation Schedule the Customer must attend such test within two (2) working days from the date of notification by the Company to carry out such test and unless otherwise agreed by the Company a complete test shall constitute delivery regardless of failure by the Customer to attend such test.
The Company will make every effort to ensure delivery of Goods and Services on time but will not be liable for any loss or damage or consequential loss to the Customer arising from delays in delivery.
Risk, Ownership and Title
Risk of any loss, damage or deterioration of or to the Goods shall be borne by the Customer from the time of delivery of the Goods into the Customer’s care and control and the Customer shall properly insure the Goods from theft, fire or loss damage. Where the Customer fails to insure the Goods upon delivery and suffers loss or damage to the Goods, and where the Goods remain unpaid, the Customer shall agree to pay the Company for the full cost of the Goods and value of Services.
The Customer agrees that the Company has legal and equitable right to title in all and any Goods supplied that remain unpaid and ownership shall only pass to the Customer when the contract price is paid. For as long as ownership in the Goods is retained by the Company the Customer may use the Goods in such a way that they are identifiable as the property of the Company and may not sell the Goods until the Customer pays the Company in full without deduction or setoff.
Where the Goods remain unpaid the Customer hereby irrevocably gives the Company, its agents or servants, the free and uninterrupted right to enter its premises during normal business hours in accordance with the Credit (repossession) Act, to search for, inspect and remove any of the Goods supplied in which the Company has retained ownership and the Customer will not hold the Company responsible for any economic or consequential loss that the Customer may suffer as a result of the Goods being removed or dismantled from the property of the Customer. The Company may resell possessed Goods and credit the Customer with the proceeds of sale (less depreciation, wear and tear) and the Customer will still be liable for any outstanding monies.
Where any Goods in respect of which title has not passed to the Customer are sold by the Customer contrary to this contract, any book debt created upon sale of such Goods and the proceeds of sale of such Goods when received by the Customer shall be held upon trust by the Customer for the Company. Proceeds of sale so received by the Customer shall be placed in a separate bank account held as a separate fund in trust for the Company and shall first be applied towards the satisfaction of all indebtedness of the Customer to the Company.
Company Warranty & Liability
The Company’s liability in respect of any claim shall relate only to specific defects in the Goods arising from faulty manufacture or from damage proven to occur before delivery by the Company. Where the Company accepts liability for damage or defect under its warranty and elects to repair or replace Goods it shall repair or replace the Goods to their original condition but where this cannot be done the Company will refund the purchase price in full.
The Company specifies in writing for the use of the Goods including the method of installation. If the Customer uses the Goods for other purposes than that specified by the Company the Customer agrees to be responsible for the fitness of the Goods for the purposes required by the Customer and the Company shall not be responsible and the warranty will not apply to Goods where the Customer fails to ascertain the correctness of the Goods for purposes intended by the Customer.
The warranty on parts or materials or equipment supplied by the Company as a constituent part of the Goods but not manufactured by the Company shall be the warranty of the original manufacturer otherwise the Goods are warranted for twelve (12) months and Services for three (3) months.
Unless requested by the Customer and confirmed by the Company in its quotation that it will undertake responsibility it shall be the sole responsibility of the Customer that property surfaces under the ownership, care or responsibility of the Customer is of adequate strength to support loads including weight, noise and vibration checks relating to equipment and methods the Company will use in its supply and the Customer further agrees that it will not hold the Company liable in any way for damage to property surfaces, as a result of failure of the Customer’s responsibility in this regard.
It shall be the sole responsibility of the Customer to declare the ownership of or right to use property sites under the care or responsibility of the Customer and the Customer further agrees to accept liability for any incorrect removal of redundant materials, preparation of the site or installation by the Company as a result of the Customer’s failure in this regard.
The Company shall not be liable for any loss of profits or any consequential, indirect or special loss, damage or injury of any kind whatsoever suffered by the Customer or any other person arising directly or indirectly from any breach of any of the Company’s obligations arising under or in connection with the contract including delays in the delivery of Goods or Services or from any cancellation of the contract or from any negligence, misrepresentation or other act or omission on the part of the Company, its servants, agents or contractors.
The Company shall not be liable for any breach or failure to perform any of its obligations under this contract where such breach or failure is caused by war, bad weather, adverse environmental conditions, civil commotion, hostilities, strike or lock out, act of God, fire, governmental regulations or directions, or reasons force majeure caused beyond the Company’s reasonable control. The occurrence of such an event shall not give the Customer a right of cancellation of any contract.
When Claims will not be considered
The Company’s liability in respect of any claim shall relate only to specific manufacturing defects in the Goods or Services. The Customer agrees that the Company will not consider claims from the Customer in respect of Goods which:
- are not intact and in original condition subject to normal wear and tear.
- have been improperly stored and suffered damage
- have been improperly installed by the Customer
- have been used for other than purposes specified to the Company for supply
- have been altered from the condition in which they were supplied or repaired by persons other than the Company.
- have not been maintained according to any Instructions of Care issued by the Company in its warranty.
If the Customer does not comply with the above requirements for warranty and claims the Customer will be deemed to have accepted the Goods and the Company will not incur any liability whatsoever in relation to the Goods.
Consumer Guarantees Act 1993
Nothing in these terms is intended to have the affect of contracting out of the provisions of the Consumer Guarantees Act 1993 except to the extent permitted by that Act where the Customer acquires the Goods in a business situation for the business purposes of a business and all provisions of these terms shall be read as modified to the extent necessary to give effect to that intention. Where the Goods are purchased from the Company by consumer users for household or domestic purposes the conditions of the Act shall apply.
Dispute and Arbitration
In the event of any dispute between the Company and the Customer arising out of this Contract, the Customer agrees to pay the undisputed part of the outstanding monies owed and such dispute shall be referred to a Mediator to be agreed between the parties and the costs shall be equally shared and upon failure to agree to the outcomes of mediation the dispute shall be referred to an Arbitrator and arbitration conducted in accordance with the Arbitration Act 1996 and any amendments thereof.