Hard Wired Electrical Limited Terms & Conditions of Trade

 

1. Definitions


1.1 “Contractor” shall mean Hard Wired Electrical Limited its successors and assigns or any person acting on behalf of and with authority of Hard Wired Electrical Limited.
1.2 “Customer” shall mean the Customer (or any person acting on behalf of and with the authority of the Customer) as described on any quotation, work authorisation or other form as provided by the Contractor to the Customer.
1.3 “Guarantor” shall mean that person (or persons) who agrees to be liable for the debts of the Customer on a principal debtor basis.
1.4 “Goods” shall mean all Goods supplied by the Contractor to the Customer (and where the context so permits shall include any supply of Services as hereinafter defined) and includes Goods described on any invoices, quotation, work authorisation or any other forms as provided by the Contractor to the Customer.
1.5 “Services” shall mean all services supplied by the Contractor to the Customer and includes any advice or recommendations (and where the context so permits shall include any supply of Goods as defined above).
1.6 “Equipment” shall mean all Equipment including any accessories supplied on hire by the Contractor to the Customer (and where the context so permits shall include any supply of services). The Equipment shall be as described on the invoices, quotation, authority to hire, or any other work authorisation form provided by the Contractor to the Customer.
1.7 “Price shall mean the price payable for the Goods as agreed between the Contractor and the Customer in accordance with clause 3 of this contract.

 

2. Acceptance


2.1 Any instructions received by the Contractor from the Customer for the supply of Goods and/or the Customer’s acceptance of Goods supplied by the Contractor shall constitute acceptance of the terms and conditions contained herein.
2.2 Where more than one Customer has entered into this agreement, the Customers shall be jointly and severally liable for all the payments of the Price.
2.3 Upon acceptance of these terms and conditions by the Customer the terms and conditions are binding and can only be amended with the written consent of the Contractor.
2.4 The Customer shall give the Contractor not less than fourteen (14) days prior written notice of any proposed change of ownership of the Customer or any change in the Customers name and/or any other change in the Customer’s details (including but not limited to, changes in the Customers address or business practice). The Customer shall be liable for any loss incurred by the Contractor as a result of the Customer’s failure to comply with this clause.
2.5 Goods are supplied by the Contractor only on the terms and conditions of trade herein to the exclusion of anything to the contrary in the terms of the Customer’s order notwithstanding that any such order is placed on terms that purport to override these terms and conditions of trade.

 

3. Payment and Price


3.1 At the Contractor’s sole discretion the Price shall be either:
(a) as indicted on invoices provided by the Contractor to the Customer in respect of the Goods supplied: or
(b) The Contractor’s quoted Price (subject to clause 3.2) which shall be binding upon the Contractor provided that the Customer shall accept the Contractor’s quotation in writing within thirty (30) days.
3.2 The Contractor reserves the right to change the Price in the event of a variation to the Contractor’s quotation. The value of work so performed shall include the reasonable value of authorised variations, whether or not the value of such variations has been finally agreed between the parties, and the value of materials delivered to the site but not installed.
3.3 At the Contractor’s sole discretion a deposit may be required.
3.4 The Contractor may submit detailed progress payment claims in accordance with the Contractor’s specified payment schedule. Such payment claims may include the reasonable value of authorised variations and the value of any materials delivered to the site but not yet installed.
3.5 At the Contractor’s sole discretion:
(a) payment shall be due on delivery of the Goods: or
(b) payment shall be due before delivery of the Goods: or
(c) payment for approved Customers shall be made by installments in accordance with the Contractor’s payment schedule: or
(d) payment for approved Customers shall be due twenty (20) working days following the end of the month in which a statement is posted to the Customer’s address or address for notices.
3.6 Time for payment for the Goods shall be of the essence and will be stated on the invoice or any other forms. If no time is stated then payment shall be due seven (7) days following the date of the invoice.
3.7 Payment will be made by cash, or by cheque, or by bank cheque, or by direct credit, or by any other method as agreed to between the Customer and the Contractor.
3.8 GST and other taxes and duties that may be applicable shall be added to the Price except when they are expressly included in the Price.

 

4. Delivery of Goods


4.1 At the Contractor’s sole discretion delivery of the Goods shall take place when:
(a) the Customer takes possession of the Goods at the Contractor’s address; or
(b) the Customer takes possession of the Goods at the Customer’s nominated address (in the event that the Goods are delivered by the Contractor or the Contractor’s nominated carrier); or
(c) The Customer’s nominated carrier takes possession of the Goods in which event the carrier shall be deemed to be the Customer’s agent.
4.2 At the Contractor’s sole discretion the costs of delivery are:
(a) in addition to the Price; and
(b) for the Customer’s account
4.3 The Customer shall make all the arrangements necessary to take delivery of the Good’s whenever they are tendered for delivery. In the event that the customer is unable to take delivery of the Goods as arranged then the Contractor shall be entitled to charge a reasonable fee for redelivery.
4.4 Delivery of the Goods to a third party nominated by the Customer is deemed to be delivery to the Customer for the purposes of this agreement.
4.5 The Contractor may deliver the Goods by separate installments. Each separate installment shall be invoiced and paid for in accordance with the provisions in these terms and conditions.
4.6 The failure of the Contractor to deliver shall not entitle either party to treat this contract as repudiated.
4.7 The Contractor shall not be liable for any loss or damage whatsoever due to failure by the Contractor to deliver the Goods (or any of them) promptly or at all, where due to circumstances beyond the control of the Contractor.

 

5. Risk


5.1 If the Contractor retains ownership of the Goods nonetheless, all risk for the Goods passes to the Customer on delivery.
5.2 If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Customer, the Contractor is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by the Contractor is sufficient evidence of the Contractor’s rights to receive the insurance proceeds without the need for any person dealing with the Contractor to make further enquiries.
5.3 The Customer acknowledges that Goods supplied may exhibit variations in shade, colour, texture, surface and finish, and may fade or change overtime. The Contractor will make every effort to match batches of product supplied in order to minimise such variations but shall not be liable in any way whatsoever where such variations occur.
5.4 Where the Contractor is required to install the Goods the Customer warrants that the structure of the premises or equipment in or upon which these goods are to be installed or erected is sound and will sustain the installation and work incidental thereto and the Contractor shall not be liable for any claims, demands, losses, damages, costs and expenses howsoever caused or arising should the premises or equipment be unable to accommodate the installation.

 

6. Title


6.1 The Contractor and Customer that ownership of the Goods shall not pass until;
(a) the Customer has paid the Contractor all the amounts owing for the particular Goods; and
(b) The Customer has met all other obligations due by the Customer to the Contractor in respect of all contracts between the Contractor and the Customer.
6.2 Receipt by the Contractor of any of form of payment other than cash shall not be deemed to be payment until the form of payment has been honoured, cleared or recognised and until then the Contractor’s ownership of rights in respect of the Goods shall continue.
6.3 It is further agreed that:
(a) where practicable the Goods shall be kept separate and identifiable until Contractor shall have received payment and all other obligations of the Customer are met; and
(b) Until such time as ownership of the Goods shall pass from the Contractor to the Customer the Contractor may give notice in writing to the Customer to return the Goods or any of them to the Contractor. Upon such notice being given the rights of the Customer to obtain ownership or any other interest in the Goods shall cease; and
(c) the Customer is only a bailee of the Goods and until such time as the Contractor has received payment in full for the Goods then the Customer shall hold any proceeds from the sale or disposal of the Goods, up to and including the amount the Customer owes to the Contractor for the Goods, on trust for the Contractor; and
(d) until such time that ownership in the Goods passes to the Customer, if the Goods are converted into other products, the parties agree that the Contractor will be the owner of the end products; and
(e) if the Customer fails to return the Goods to the Contractor then the Contractor or the Contractor’s agent may (as the invitee of the Customer) enter upon and into land and premises owned, occupied or used by the Customer, or any premises where the Goods are situated and take possession of the Goods, and the Contractor will not be liable for any reasonable loss or damage suffered as a result of any action by the Contractor under this clause.

 

7. Personal Property Securities Act 1999 (“PPSA”)


7.1 Upon assenting to these terms and conditions in writing the Customer acknowledges and agrees that:
(a) there terms and conditions constitute a security agreement for the purposes of the PPSA; and
(b) A security interest is taken in all Goods previously supplied by the Contractor to the Customer (if any) and all Goods that will be supplied in the future by the Contractor to the Customer.
7.2 The Customer undertakes to:
(a) sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which the Contractor may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register;
(b) indemnify, and upon demand reimburse the Contractor for all the expenses incurred in registering a financing statement or financing charge statement on the Personal Property Securities Register or releasing any Goods charged thereby;
(c) not register a financing charge statement or a change demand without the prior written consent of the Contractor; and
(d) Immediately advise the Contractor of any material change in it’s business practices of selling the Goods which would result in a change in the nature of proceeds derived from such sales.

7.3 The Contractor and the Customer agree that nothing in sections 114(1)(a), 133 & 134 of the PPSA shall apply to these terms and conditions.
7.4 The Customer waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA.
7.5 Unless otherwise agreed in writing by the Contractor, the Customer waives its right to receive a verification statement in accordance with section 148 of the PPSA.
7.6 The Customer shall unconditionally ratify any actions taken by the Contractor under clauses 7.1 to 7.5.

 

8. Customer’s Disclaimer


8.1 The Customer hereby disclaims any right to rescind, or cancel any contract with the Contractor or to sue for damages or to claim restitution arising out of any inadvertent misrepresentation made to the Customer by the Contractor and the Customer acknowledges that the Goods are bought relying solely upon the Customer’s skill and judgment.

 

9. Defects


9.1 The Customer shall inspect the Goods on delivery and shall within seven (7) days of delivery (time being of the essence) notify the Contractor of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Customer shall afford the Contractor an opportunity to inspect the Goods within a reasonable time following delivery if the Customer believes the Goods are defective in any way. If the Customer shall fail to comply with these provisions the Goods shall be presumed to be free from any defect or damage. For defective Goods, which the Contractor has agreed in writing that the Customer is entitled to reject, the Contractor’s liability is limited to either (at the Contractor’s discretion) replacing the Goods or repairing the Goods.
9.2 Goods will not be accepted for return other than in accordance with 9.1 above.

 

10. Warranty


10.1 Subject to the conditions of warranty set out in Clause 10.20 the Contractor warrants that if any defect in any workmanship of the Contractor becomes apparent and is reported to the Contractor within twelve (12) months of the date of delivery (time being of the essence) then the Contractor will either (at the Contractor’s sole discretion) replace or remedy the workmanship.
10.2 The conditions applicable to the warranty given by Clause 10.1 are:
(a) The warranty shall not cover any defect or damage which may be caused or partly caused by or arise through:
(i) failure on the part of the Customer to properly maintain any Goods; or
(ii) failure on the part of the Customer to follow any instructions or guidelines provided by the Contractor; or
(iii) any use of any Goods otherwise than for any application specified on a quote or order form; or
(iv) the continued use of any Goods after any defect becomes apparent or would have become apparent to a reasonably prudent operator or user; or
(v) Fair wear and tear, any accident or act of God.
(b) The warranty shall cease and the Contractor shall thereafter in no circumstances be liable under the terms of the warranty if the workmanship is repaired, altered or overhauled without the Contractor’s consent.
(c) In respect of all claims the Contractor shall not be liable to compensate the Customer for any delay in either replacing or remedying the workmanship or in the properly assessing the Customer’s claim.
10.3 For Goods not manufactured by the Contractor, the warranty shall be the current warranty provided by the manufacturer of the Goods. The Contractor shall not be bound by nor be responsible for any term, condition, representation or warranty other than that which is given by the manufacturer of the Goods.

 

11. Consumer Guarantees Act 1993


11.1 If the Customer is acquiring Goods for the purposes of a trade or business, the Customer acknowledges that the provisions of the Consumer Guarantees Act 1993 do not apply to the supply of Goods by the Contractor to the Customer.

 

12. Intellectual Property


12.1 Where the Contractor has designed, drawn or written Goods for the Customer, then the copyright in those designs and drawings and documents shall remain vested in the Contractor, and shall only be used by the Customer at the Contractor’s discretion.
12.2 The Customer warrants that all designs or instructions to the Contractor will not cause the Contractor to infringe any patent, registered design or trademark in the execution of the Customer’s order and the Customer agrees to indemnify the Contractor against any action taken by a third party against the Contractor in respect of any such infringement.
12.3 The Customer agrees that the Contractor may use any documents, designs, drawings or Goods created by the Contractor for the purposes of advertising, marketing or entry into any competition.

 

13. Default & Consequences of Default


13.1 Interest on overdue invoices shall accrue daily from the date when the payment becomes due, until the date of payment, at a rate of five percent (5%) per calendar month (and at the Contractor’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
13.2 In the event the Customer’s payment is dishonoured for any reason the Customer shall be liable for any dishonour fees incurred by the Contractor.
13.3 If the Customer defaults in the payment of any invoice when due, the Customer shall indemnify the Contractor from and against all costs and disbursements incurred by the Contractor in pursuing the debt including legal costs on a solicitor and own client basis and the Contractor’s collection agency costs.
13.4 Without prejudice to any other remedies the Contractor may have, if at any time the Customer is in breach of any obligation (including those relating to payment) the Contractor may suspend or terminate the supply of Goods to the Customer and any of its other obligations under the terms and conditions. The Contractor will not be liable to the Customer for any loss or damage the Customer suffers because the Contractor has exercised its rights under this clause.
13.5 If any account remains overdue after thirty (30) days then an amount of the greater of twenty dollars ($20.00) or ten percent (10%) of the amount overdue (up to a maximum of two hundred dollars ($200.00) shall be levied for administration fees which sum shall become immediately due and payable.
13.6 Without prejudice to the Contractor’s other remedies at law the Contractor shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to the Contractor shall, whether or not due for payment, become immediately payable in the event that:
(a) Any money payable to the Contractor becomes overdue, or in the Contractor’s opinion the Customer will be unable to meet its payments as they fall due; or
(b) The Customer becomes insolvent, convenes a meeting with it’s creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of it’s creditors; or
(c) A receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer.

 

14. Security & Charge


14.1 Despite anything to the contrary contained herein or any other rights which the Contractor may have howsoever:
(a) Where the Customer and/or the Guarantor (if any) is the owner of land, realty or any other asset capable of being charged, both the Customer and/or Guarantor agree to mortgage and/or charge all of their joint and/or several interest, in the said land, realty or any other asset to the Contractor or the Contractor’s nominee to secure all amounts and other monetary obligations payable under these terms and conditions. The Customer and/or the Guarantor acknowledge and agree that the Contractor (or the Contractor’s nominee) shall be entitled to lodge where appropriate a caveat, which caveat shall be withdrawn once all payments and other monetary obligations payable hereunder have been met.
(b) Should the Contractor elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Customer and/or Guarantor shall indemnify the Contractor from and against all the Contractor’s costs and disbursements including legal costs on a solicitor and own client basis.
(c) The Customer and/or the Guarantor (if any) agree to irrevocably nominate constitute and appoint the Contractor or the Contractor’s nominee as the Customer’s and/or Guarantor’s true and lawful attorney to perform all necessary acts to give effect to the provisions of this clause 14.1

 

15. Cancellation


15.1 The Contractor may cancel any contract to which these terms and conditions apply or cancel delivery of Goods at any time before the Goods are delivered by giving written notice to the Customer. On giving such notice the Contractor shall repay to the Customer any sums paid in respect of the Price. The Contractor shall not be liable for any loss or damage whatsoever arising from such cancellation.
15.2 In the event that the Customer cancels delivery of the Goods the Customer shall be liable for any loss incurred by the Contractor (including, but not limited to, any loss of profits) up to the time of cancellation.
15.3 Cancellation of orders for Goods made to the Customer’s specifications or non-stocklist items will definitely not be accepted, once production has commenced.

 

16. Privacy Act 1993


16.1 The Customer and the Guarantor/s (if separate to the Customer) authorises the Contractor to:
(a) Collect, retain and use any information about the Customer and/or Guarantors for the purpose of assessing the Customer’s and/or Guarantors creditworthiness or marketing products and services to the Customer and/or Guarantors; and
(b) Disclose information about the Customer and/or Guarantors, whether collected by the Contractor from the Customer and/or Guarantors directly or obtained by the Contractor from any other source, to any other credit provider or any credit reporting agency for the purposes of providing or obtaining a credit reference, debt collection or notifying a default by the Customer and/or Guarantors.
16.2 Where the Customer and/or Guarantors are an individual the authorities under clause 16.1 are authorities or consents for the purposes of the Privacy Act 1993.
16.3 The Customer and/or Guarantors shall have the right to request the Contractor for a copy of the information about the Customer and/or Guarantors retained by the Contractor and the right to request the Contractor to correct any incorrect information about the Customer and/or Guarantees held by the Contractor.

 

17. Unpaid Contractor’s Rights


17.1 Where the Customer has left any item with Contractor for repair, modification, exchange or the Contractor to perform any other Service in relation to the item and the Contractor has not received or been tendered the whole of the Price, or the payment has been dishonoured, the Contractor shall have:
(a) A lien on the item;
(b) The right to retain the item for the Price while the Contractor is in possession of the item;
(c) A right to sell the item.
17.2 The lien of the Contractor shall continue despite the commencement of proceedings, or judgement for the Price having been obtained.

 

18. Equipment Hire


18.1 The Equipment shall at all times remain the property of the Contractor and is returnable on demand by the Contractor. In the event that the Equipment is not returned to the Contractor in the condition in which it was delivered the Contractor retains the right to charge the Price of repair or replacement of the Equipment.
18.2 The Customer shall;
(a) Keep the Equipment in their own possession and control and shall not assign the benefit of the Equipment nor be entitled to lien over the Equipment.
(b) Not alter or make any additions to the Equipment including but without limitation altering, make any additions to, defacing or erasing any identifying mark, plate or number on or in the Equipment or in any other manner interfere with the Equipment.
(c) Keep the Equipment, complete with all parts and accessories, clean and in good order as delivered, and shall comply with any maintenance schedule as advised by the Contractor to the Customer.
18.3 The Customer accepts full responsibility for the safekeeping of the Equipment and the Customer agrees to insure, or self insure, the Contractors interest in the Equipment and agrees to indemnify the Contractor against physical loss or damage including, but limited to, the perils of accident, fire, theft and burglary and all other usual risks and will effect adequate Public Liability Insurance covering any loss, damage or injury to property or persons arising out of the use of the Equipment. Further the Customer will not use the Equipment nor permit it to be used in such a manner as would permit an insurer to decline any claim.

 

19 Construction Contract Act 2002


19.1 The Customer hereby expressly acknowledges that:
(a) The Contractor has the right to suspend work within five (5) working days of written notice of it’s intent to do so if a payment claim is served on the Customer, and:
(i) The payment is not paid in full by the due date for payment and no payment schedule has been given by the Customer; or
(ii) A scheduled amount stated in a payment schedule issued by the Customer in relation to the payment claim is not paid in full by the due date for it’s payment; or
(iii) The Customer has not complied with an adjudicator’s notice that the Customer must pay an amount to the Contractor by a particular date; and
(iv) The Contractor has given written notice to the Customer of its intention to suspend the carrying out of construction work under the construction contract.
(b) if the Contractor suspends work, it:
(i) is not in breach of contract; and
(ii) is not liable for any loss or damage whatsoever suffered or alleged to be suffered, by the Customer or by any person claiming through the Customer; and
(iii) is entitled to an extension of time to complete the contract; and
(iv) keeps its rights under the contract including the right to terminate the contract; and may at any time lift the suspension, even if the amount has not been paid or an adjudicator’s determination has not been complied with.
(c) if the Contractor exercises the right to suspend work, the exercise of that right does not:
(i) affect any rights that would otherwise have been available to the Contractor under the Contractual Remedies Act 1979; or
(ii) enable the Customer to exercise any rights that may otherwise have been available to the Customer under that Act as a direct consequence of the Contractor suspending work under this provision.

 

20 General


20.1 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.
20.2 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 courts of New Zealand.
20.3 The contractor shall be under no liability whatsoever to the Customer for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by the Contractor of these terms and conditions.
20.4 In the event of any breach of this contract by the Contractor the remedies of the Customer shall be limited to damages which under the circumstances shall exceed the Price of the Goods.
20.5 The Customer shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Customer by the Contractor nor to withhold payment of any Invoice because part of that invoice is in dispute.
20.6 The Contractor may license or sub-contract all or any part of its rights and obligations without the Customer’s consent.
20.7 The Contractor reserves the right to review these terms and conditions at any time. If following any such review, there is to be any change to these terms and conditions, then that change will take effect from the date on which the Contractor notifies the Customer of such change.
20.8 The provisions of the Contractual Remedies Act 1979 shall apply to this contract as if section 15(d) were omitted from the Contractual Remedies Act 1979.
20.9 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, drought, storm or other event beyond the reasonable control of either party.
20.10 The failure by the Contractor to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect the Contractor’s right to subsequently enforce that provision.

 


 

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