Terms and Conditions
1. Definitions
1.1 "Seller" shall mean Quantum Electrical &
Automation Ltd its successors and assigns or any person acting on
behalf of and with the authority of Quantum Electrical &
Automation Ltd.
1.2 "Client" shall mean the Client (or any
person acting on behalf of and with the authority of the Client) as
described on any quotation, work authorisation or other form as
provided by the Seller to the Client.
1.3 "Guarantor" means that person (or persons),
or entity, who agrees to be liable for the debts of the Client on a
principal debtor basis.
1.4 "Goods" shall mean Goods supplied by the Seller to
the Client (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 Seller to the Client.
1.5 "Services" shall mean all services supplied by the
Seller to the Client and includes any advice or recommendations
(and where the context so permits shall include any supply of Goods
as defined above).
1.6 "Price" shall mean the price payable for the Goods
as agreed between the Seller and the Client in accordance with
clause 3 of this contract.
2. Acceptance
2.1 Any instructions received by the Seller from the
Client for the planning and/or design and/or supply of Goods and/or
the Client's acceptance of Goods supplied by the Seller shall
constitute acceptance of the terms and conditions contained
herein.
2.2 Where more than one Client has entered into this
agreement, the Clients shall be jointly and severally liable for
all payments of the Price.
2.3 Upon acceptance of these terms and conditions by
the Client the terms and conditions are binding and can only be
amended with the written consent of the Seller.
2.4 The Client shall give the Seller not less than
fourteen (14) days prior written notice of any proposed change of
ownership of the Client or any change in the Client's name and/or
any other change in the Client's details (including but not limited
to, changes in the Client's address, facsimile number, or business
practice). The Client shall be liable for any loss incurred by the
Seller as a result of the Client's failure to comply with this
clause.
3. Price And Payment
3.1 At the Seller's sole discretion the Price shall be
either:
(a) as indicated on invoices provided by the Seller to the Client
in respect of Goods supplied; or
(b) the Seller's quoted Price (subject to clause 3.2) which
shall be binding upon the Seller provided that the Client shall
accept the Seller's quotation in writing within thirty (30)
days.
3.2 The Seller reserves the right to change the Price
in the event of a variation to the Seller's quotation.
3.3 Variations to quotes works will incur a 10% admin
fee per variation
3.4 At the Seller's sole discretion a deposit may be
required.
3.5 At the Seller's sole discretion:
(a) payment shall be due on delivery of the Goods; or
(b) payment for approved Clients shall be made by instalments in
accordance with the Seller's payment schedule.
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 twenty (20) days following
the end of the month in which a statement is posted to the Client's
address or address for notices.
3.7 When the Client requests the Seller's assistance
for issues outside the control of the Seller, the Seller will
charge the Client at its standard rate.
3.8 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 Client and the Seller.
3.9 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 Delivery of the Goods shall take place when the
Client takes possession of the Goods at the Client's nominated
address (in the event that the Goods are delivered by the Seller or
the Seller's nominated carrier).
4.2 At the Seller's sole discretion the costs of
delivery are:
(a) included in the Price; or
(b) in addition to the Price.
4.3 The Client shall make all arrangements necessary
to take delivery of the Goods whenever they are tendered for
delivery. In the event that the Client is unable to take delivery
of the Goods as arranged then the Seller shall be entitled to
charge a reasonable fee for redelivery.
4.4 Delivery of the Goods to a third party nominated
by the Client is deemed to be delivery to the Client for the
purposes of this agreement.
4.5 The Seller may deliver the Goods by separate
instalments. Each separate instalment shall be invoiced and paid
for in accordance with the provisions in these terms and
conditions.
4.6 The failure of the Seller to deliver shall not
entitle either party to treat this contract as repudiated.
4.7 The Seller shall not be liable for any loss or
damage whatever due to failure by the Seller to deliver the Goods
(or any of them) promptly or at all.
5. Risk
5.1 If the Seller retains ownership of the Goods
nonetheless, all risk for the Goods passes to the Client on
delivery.
5.2 If any of the Goods are damaged or destroyed
following delivery but prior to ownership passing to the Client,
the Seller is entitled to receive all insurance proceeds payable
for the Goods. The production of these terms and conditions by the
Seller is sufficient evidence of the Seller's rights to receive the
insurance proceeds without the need for any person dealing with the
Seller to make further enquiries.
6. Title
6.1 The Seller and Client agree that ownership of the
Goods shall not pass until:
(a) the Client has paid the Seller all amounts owing for the
particular Goods; and
(b) the Client has met all other obligations due by the Client to
the Seller in respect of all contracts between the Seller and the
Client.
6.2 Receipt by the Seller 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 and until then the
Seller's ownership or 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 the Seller shall have received payment and all
other obligations of the Client are met; and
(b) until such time as ownership of the Goods shall pass from the
Seller to the Client the Seller may give notice in writing to the
Client to return the Goods or any of them to the Seller. Upon
such notice being given the rights of the Client to obtain
ownership or any other interest in the Goods shall cease; and
(c) the Client is only a bailee of the Goods and until such time
as the Seller has received payment in full for the Goods then the
Client shall hold any proceeds from the sale or disposal of the
Goods on trust for the Seller; and
(d) until such time that ownership in the Goods passes to the
Client, if the Goods are converted into other products, the parties
agree that the Seller will be the owner of the end products;
and
(e) if the Client fails to return the Goods to the Seller then the
Seller or the Seller's agent may enter upon and into land and
premises owned, occupied or used by the Client, or any premises
where the Goods are situated as the invitee of the Client and take
possession of the Goods, and the Seller will not be liable for any
reasonable loss or damage suffered as a result of any action by the
Seller under this clause.
7. Personal Property Securities Act
1999 ("PPSA")
7.1 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 Goods previously supplied
by the Seller to the Client (if any) and all Goods that will be
supplied in the future by the Seller to the Client.
7.2 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 the Seller 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 Seller 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;
(c) not register a financing change statement or a change demand
without the prior written consent of the Seller; and
(d) immediately advise the Seller of any material change in its
business practices of selling the Goods which would result in a
change in the nature of proceeds derived from such sales.
7.3 The Seller and the Client agree that nothing in
sections 114(1)(a), 133 and 134 of the PPSA shall apply to these
terms and conditions.
7.4 The Client 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 to in writing by the
Seller, the Client waives its right to receive a verification
statement in accordance with section 148 of the PPSA.
7.6 The Client shall unconditionally ratify any
actions taken by the Seller under clauses 7.1 to 7.5.
8. Client's
Disclaimer
8.1 The Client hereby disclaims any right to rescind,
or cancel any contract with the Seller or to sue for damages or to
claim restitution arising out of any misrepresentation made to the
Client by the Seller and the Client acknowledges that the Goods are
bought relying solely upon the Client's skill and judgment.
9. Defects
9.1 The Client shall inspect the Goods on delivery and
shall within seven (7) days of delivery (time being of the essence)
notify the Seller of any alleged defect, shortage in quantity,
damage or failure to comply with the description or quote.
The Client shall afford the Seller an opportunity to inspect the
Goods within a reasonable time following delivery if the Client
believes the Goods are defective in any way. If the Client
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 Seller has agreed in writing that the Client is entitled
to reject, the Seller's liability is limited to either (at the
Seller'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
10.2 the Seller warrants that if any defect in any workmanship of
the Seller becomes apparent and is reported to the Seller within
twelve (12) months of the date of delivery (time being of the
essence) then the Seller will either (at the Seller'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 Client to properly maintain
any Goods; or
(ii) Failure on the part of the Client to follow any
instructions or guidelines provided by the Seller; 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 Seller shall thereafter in no
circumstances be liable under the terms of the warranty if the
workmanship is repaired, altered or overhauled without the Seller's
consent.
(c) In respect of all claims the Seller 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.
10.3 For Goods not manufactured by the Seller, the warranty
shall be the current warranty provided by the manufacturer of the
Goods. The Seller 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.
10.4 The cost of labour to check or replace Goods, whether
or not the Goods are under warranty, will be charged at the
Contractor's standard rate.
10.5 Any alarm type faults/ false alarm type callouts that
fall beyond our reasonable control will be chargeable this includes
false alarm due to climate, batteries low, environment, misuse and
or not spaying regularly for insects.
11. Consumer Guarantees Act 1993
11.1 If the Client is acquiring Goods for the purposes of a
trade or business, the Client acknowledges that the provisions of
the Consumer Guarantees Act 1993 do not apply to the supply of
Goods by the Seller to the Client.
12. Intellectual Property
12.1 Where the Seller has designed, drawn or written Goods
for the Client, then the copyright in those designs and drawings
and documents shall remain vested in the Seller, and shall only be
used by the Client at the Seller's discretion.
12.2 The Client warrants that all designs or instructions to
the Seller will not cause the Seller to infringe any patent,
registered design or trademark in the execution of the Client's
order and the Client agrees to indemnify the Seller against any
action taken by a third party against the Seller in respect of any
such infringement.
13. Default & Consequences of
Default
13.1 Interest on overdue invoices shall accrue from the date
when payment becomes due daily until the date of payment at a rate
of 2.5% per calendar month and such interest shall compound monthly
at such a rate after as well as before any judgment.
13.2 If the Client defaults in payment of any invoice when
due, the Client shall indemnify the Seller from and against all
costs and disbursements incurred by the Seller in pursuing the debt
including legal costs on a solicitor and own client basis and the
Seller's collection agency costs.
13.3 Without prejudice to any other remedies the Seller may
have, if at any time the Client is in breach of any obligation
(including those relating to payment); the Seller may suspend or
terminate the supply of Goods to the Client and any of its other
obligations under the terms and conditions. The Seller will
not be liable to the Client for any loss or damage the Client
suffers because the Seller has exercised its rights under this
clause.
13.4 If any account remains overdue after thirty (30) days
then an amount of the greater of $20.00 or 10.00% of the amount
overdue (up to a maximum of $200) shall be levied for
administration fees which sum shall become immediately due and
payable.
13.5 Without prejudice to the Seller's other remedies at law
the Seller shall be entitled to cancel all or any part of any order
of the Client which remains unfulfilled and all amounts owing to
the Seller shall, whether or not due for payment, become
immediately payable in the event that:
(a) any money payable to the Seller becomes overdue, or in the
Seller's opinion the Client will be unable to meet its payments as
they fall due; or
(b) the Client becomes insolvent, 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
(c) A receiver, manager, liquidator (provisional or otherwise) or
similar person is appointed in respect of the Client or any asset
of the Client.
14. Security And Charge
14.1 Despite anything to the contrary contained herein or
any other rights which the Seller may have howsoever:
(a) where the Client and/or the Guarantor (if any) is the owner of
land, realty or any other asset capable of being charged, both the
Client and/or the 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 Seller or the Seller's nominee to secure all
amounts and other monetary obligations payable under these terms
and conditions. The Client and/or the Guarantor acknowledge
and agree that the Seller (or the Seller'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 Seller elect to proceed in any manner in accordance
with this clause and/or its sub-clauses, the Client and/or
Guarantor shall indemnify the Seller from and against all the
Seller's costs and disbursements including legal costs on a
solicitor and own client basis.
(c) the Client and/or the Guarantor (if any) agree to irrevocably
nominate constitute and appoint the Seller or the Seller's nominee
as the Client'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 Seller 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 Client. On
giving such notice the Seller shall repay to the Client any sums
paid in respect of the Price. The Seller shall not be liable for
any loss or damage whatever arising from such cancellation.
15.2 In the event that the Client cancels delivery of Goods
the Client shall be liable for any loss incurred by the Seller
(including, but not limited to, any loss of profits) up to the time
of cancellation.
16. Privacy Act 1993
16.1 The Client and the Guarantor/s (if separate to the
Client) authorises the Seller to:
(a) collect, retain and use any information about the Client, for
the purpose of assessing the Client's creditworthiness or marketing
products and services to the Client; and
(b) disclose information about the Client, whether collected by
the Seller from the Client directly or obtained by the Seller 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.
16.2 Where the Client 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 Client and/or Guarantors shall have the right to
request the Seller for a copy of the information about the Client
and/or Guarantors retained by the Seller and the right to request
the Seller to correct any incorrect information about the Client
and/or Guarantors held by the Seller.
17. Construction Contracts Act
2002
17.1 In the event that the Client is a residential occupier
as defined by the Construction Contracts Act 2002 the Client hereby
expressly acknowledges that:
(a) the Seller 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 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 the Seller by a particular
date; and
(iv) the Seller has given written notice to the Client of its
intention to suspend the carrying out of construction work under
the construction contract.
(b) if the Seller 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.
(c) if the Seller 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 Seller under the Contractual Remedies Act 1979;
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 the Seller suspending work under this
provision.
18. General
18.1 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.
18.2 These terms and conditions and any contract to which
they apply shall be governed by the laws ofNew Zealandand are
subject to the jurisdiction of the courts ofNew Zealand.
18.3 The Seller shall be under no liability whatever to the
Client for any indirect loss and/or expense (including loss of
profit) suffered by the Client arising out of a breach by the
Seller of these terms and conditions.
18.4 In the event of any breach of this contract by the
Seller the remedies of the Client shall be limited to damages which
under no circumstances shall exceed the Price of the Goods.
18.5 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 the Seller.
18.6 The Seller may license or sub-contract all or any part
of its rights and obligations without the Client's consent.
18.7 The Seller 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 Seller notifies the Client
of such change.
18.8 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.
18.9 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.
18.10 The failure by the Seller to enforce any provision of these
terms and conditions shall not be treated as a waiver of that
provision, nor shall it affect the Seller's right to subsequently
enforce that provision.