Terms of trade
TERMS OF TRADE HARTNELL COOL-HEAT GROUP
1. APPLICATION
(a) Unless otherwise agreed in writing by HARTNELL COOL-HEAT LIMITED, the following terms of trade („Terms“) will apply in respect of any Order (as that term is defined below) for the supply of any goods or the provision of any services (being jointly referred to as Goods and Services and severally as the Goods and the Services (as applicable)) accepted by the Supplier in accordance with clause 2 below for supply to the Customer („Customer“). The Customer acknowledges that the supply of all Goods and/or Services by the Supplier will be subject to these Terms.
(b) If there is any inconsistency between a provision of these Terms and any provision in any other written agreement between the Customer and the Supplier, the provisions will apply in the following descending order of priority:
(i) the provisions in any written agreement between the Customer and the Supplier; and
(ii) these Terms,
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.
(c ) The Supplier may amend these Terms at any time. The amended Terms will apply in respect of any Order accepted by the Supplier for the supply of any Goods and/or Services to the Customer following the date the amended Terms are provided to the Customer in writing.
2. ORDERS
(a) The Customer will place orders with the Supplier for Goods and/or Services in accordance with any process and minimum order quantities specified by the Supplier from time to time („Order“). Each Order will constitute an offer to purchase the Goods and/or Services by the Customer which will only be accepted by the Supplier by written confirmation of the Order to the Customer or the performance by the Supplier of the Order.
(b) The Supplier may in relation to any Order:
(i) accept the Order;
(ii) specify any alternative terms on which the Supplier is prepared to accept the Order (including requiring the payment of a deposit by the Customer);or
(iii) decline to accept the Order in whole or in part,
in its sole discretion. Notwithstanding acceptance of an Order, the Supplier may cancel or refuse to supply any Order at any time in its sole discretion, provided that if the Supplier cancels any Order as a result of the Supplier's unwillingness or inability to supply any Order, the Supplier will refund any deposit paid by the Customer to the Customer (excluding any accrued interest). Except as set out in this clause, any deposit paid by the Customer will be non-refundable.
3. PRICE AND PAYMENT
(a) The price payable for any Goods and/or Services supplied by the Supplier to the Customer (Price) will be:
(i) the price agreed between the parties in writing; or
(ii) in the absence of any agreement between the parties, the Supplier's standard prices applicable for the Goods and/or Services at the time the relevant Order is accepted by the Supplier.
(b) The Price will be payable by the Customer:
(i) by the payment of any deposit if required by the Supplier; and
(ii) by the payment of the balance of the Price:
(A) on or before the date, or dates, agreed between the parties and in the manner specified or accepted by the Supplier; or
(B) in the absence of agreement, by the twentieth day of the month the date of invoice, („Due Date“) provided that the Supplier may, in its absolute discretion, require immediate payment of the Price in full without set-off or deduction.
(c ) Any Price submitted by the Supplier to the Customer is subject to alteration by the Supplier, in its sole discretion, at any time prior to acceptance by the Customer. The Supplier reserves the right to alter any discounts provided to any Customer at any time by 14 days' prior written notice. In addition, the Supplier reserves the right to alter the Price agreed with any Customer by written notice to the Customer to reflect any increase in the costs incurred by the Seller in supplying the Goods and/or Services to the Customer that is beyond the reasonable control of the Seller (including without limitation any taxes, foreign exchange fluctuations, duties and the provision of any laws enacted after the date of acceptance of any Order by the Supplier).
(d) If the Customer fails to pay the Price to the Supplier on or before the Due Date, the Supplier 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 is received in full, together with any actual costs (legal or otherwise) incurred by the Supplier for the enforcement of payment of such overdue amounts. Interest will be charged on any overdue amount at the rate of 2% per calendar month and will be compounded monthly. In addition, the Supplier may charge an administration fee equal to the greater of 10% of the amount outstanding or $20 per month, up to a maximum of $200, in respect of any amounts that are owed by the Customer to the Supplier for more than 30 days.
(e) Unless expressly stated in writing, all amounts quoted by the Supplier will be deemed to exclude GST, which will be payable by the Customer at the same time as the Price and in addition to the Price.
(f) The Supplier may, in its sole discretion, set off any amount owing by the Customer to the Supplier from any amount owing by the Supplier to the Customer. The Customer acknowledges that all amounts owing by the Customer to the Supplier must be paid in full without set off or deduction on the relevant Due Date.
4. DELIVERY
(a) Unless otherwise agreed in writing, delivery of any Goods by the Supplier will be deemed to take place when the Goods are delivered to the address specified in any Order, or in the absence of any address being specified in any Order, made available for collection by the Customer from the Supplier's premises (Delivery). If, as part of any Order the Supplier agrees to deliver the Goods to an address specified in any Order, the Customer acknowledges that:
(i) the Supplier reserves the right to charge to the Customer the Supplier's reasonable cost of delivery of the Goods if the value of the Goods to be delivered is below the Supplier's threshold for free delivery as specified by the Supplier from time to time;
(ii) the Supplier may deliver the Goods by separate instalments; and
(iii) the Supplier will not be liable to the Customer for any loss of revenue, loss of profits or any other indirect or consequential losses or liabilities incurred by the Customer on account of any Goods not being delivered on any specified date. The delivery date on any quote or Order will be indicative only. The Supplier will have no responsibility for any delivery delays and the Customer will be required to accept delivery of the Goods when tendered for Delivery. The Customer further acknowledges that there may be delays of up to 6 weeks from the date of acceptance of any Order by the Supplier before despatch by the Supplier.
(b) The Customer will make all necessary arrangements to take Delivery whenever the Goods and/or Services are tendered for Delivery and will be responsible for unloading the Goods from the delivery vehicle at its own cost. If the Customer is unable to take Delivery at the time of Delivery, or otherwise requests the Supplier to delay Delivery, the Customer will pay to the Supplier any reasonable costs incurred by the Supplier in relation to the storage and redelivery of the Goods and/or Services.
5. INSTALLATION/SERVICES
(a) Where the Supplier agrees to install any Goods or to provide any Services to the Customer, the Customer will at its own cost:
(i) provide reasonable and safe access to the location and all utilities reasonably required by the Supplier to deliver the Goods and provide the Services; and
(ii) ensure that the location complies with all health and safety requirements.
(b) The Supplier may in its sole discretion terminate any obligation to deliver any Goods or provide any Services to the Customer, without releasing the Customer from any obligation to pay for the Good or the Services, if the Customer fails to ensure that the relevant location complies with all relevant health and safety requirements or fails to provide reasonable and safe access to that location or to any utilities required on the date specified by the Supplier.
6. RISK AND TITLE
(a) Unless otherwise agreed in writing, all risk of loss, damage, deterioration or destruction to the Goods will pass to the Customer on Delivery. Title to any Goods will not pass to the Customer until the Supplier has received payment in full in cleared funds for all Goods supplied to the Customer.
(b) Until title to the Goods passes to the Customer under clause 6(a), the Customer will:
(i) hold the Goods as a bailee only;
(ii) clearly designate the Goods as the Supplier's property and store the Goods in such a way that they are identified as the Supplier's property; and
(iii) maintain the Goods in good order and condition and preserve the Goods in their present form.
(c ) Without prejudice to the Supplier's other rights and remedies, the Supplier will be entitled to retake possession of any Goods at any time prior to payment in full being received for those Goods. The Customer grants the Supplier an irrevocable right and authority to enter onto any place where such Goods are situated, or thought to be situated at any time and to take and resell the Goods and to retain the proceeds from such sale. Any shortfall arising from such sale will be a debt due and owing to the Supplier by the Customer.
7. PERSONAL PROPERTY SECURITIES ACT 1999 (PPSA)
(a) The Customer acknowledges that the retention of title in these Terms gives rise to a security interest (as defined under the PPSA) in all present and after acquired Goods, and all proceeds of such Goods, supplied by the Supplier to the Customer under these Terms to secure the Customer's performance of its obligations under these Terms.
(b) The Customer undertakes to:
(i) promptly do all things, execute all documents and/or provide any information which the Supplier may reasonably require to enable the Supplier to perfect and maintain the perfection of its security interest (including by registering a financing statement);
(ii) give the Supplier not less than 14 days prior written notice of any proposed change in its name and/or any other change of its details; and
(iii) immediately on request by the Supplier (and at the Customer's expense) obtain from any third party such agreements and waivers of any security interest that third party has in respect of the Goods to ensure that at all times the Supplier has a first ranking security interest in the Goods.
(c ) The Customer waives its rights to receive a copy of any verification statements under the PPSA and agrees that as between the Supplier and the Customer:
(i) the Customer will have no rights under (or by reference to) sections 114(1)(a), 116, 120(2), 121, 125, 126, 127, 129, 131, 133 and 134 of the PPSA; and
(ii) where the Supplier has rights in addition to those in Part 9 of the PPSA, those rights will continue to apply.
8. CLAIMS IN RELATION TO GOODS AND SERVICES
(a) Any claims by the Customer that any Goods and/or Services supplied do not correspond to the relevant quote, or that any Goods or Services received are defective, must be made in writing to the Supplier within 5 days of Delivery of the Goods and/or the performance of the Services (as applicable).
(b) If no claim is received by the Supplier within 5 days of Delivery and/or the performance of the Services, the Customer will be deemed to have irrevocably accepted the Goods and/or Services (as applicable).
(c ) If a claim is made by the Customer in accordance with clause 8(a) above, the Customer will afford the Supplier a reasonable opportunity to inspect the Goods and/or Services and to investigate the reason for any claim. Subject to verification by the Supplier, the Supplier may in its sole discretion either repair or replace any Goods or re-perform any Services provided to the Customer (or will otherwise provide a refund of the Price paid by the Customer in relation to the Goods and/or Services).
9. RETURNS
Except in accordance with the process set out in clause 8 above, the Customer acknowledges that it may not return any Goods to the Supplier, without the Supplier's prior written consent. The Customer acknowledges that the Supplier may, as a condition of it agreeing to accept any returned Goods stipulate the terms and conditions that must be met in relation to the returned Goods and any handling or restocking fees that may apply.
10. NO WARRANTIES
(a) Except as expressly set out in writing by the Supplier in respect of any Goods and/or Services, the Supplier makes no representation, warranty or undertaking (whether express or implied) in relation to any Goods (including any warranty as to the merchantability, quality, or condition of the Goods, compliance with the description of the Goods, the suitability or fitness of the Goods for the Customer's purposes, or the use of the Goods) or Services. To the maximum extent permitted by law, all such representations, warranties and undertakings are negatived and excluded. Photographs, illustrations, weights, dimensions, and any other particulars given in or accompanying a quotation from the Supplier, or contained in supporting descriptive literature, represent generally the goods or services offered, and may be subject to alternation without notice by the manufacturer of the goods, and the Supplier shall not be liable for any such change.
(b) 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 Consumer Guarantees Act 1993 (Act), the Customer will not assert or attempt to assert any rights or claims against the Supplier under the provisions of the Act.
(c ) The Customer acknowledges that it is not relying on the Supplier's skill or judgment as to the suitability or otherwise of the Goods and/or Services for any purpose.
11. INTELLECTUAL PROPERTY
(a) The Customer acknowledges that as between the Customer and the Supplier, unless expressly agreed in writing and signed by the Supplier, the Supplier will own all of the intellectual property rights (whether registered or unregistered) relating to the Goods, the Services and any intellectual property („Intellectual Property“) and all right and title to any actual or possible development or improvement in the Goods, the Services or the intellectual property („Development IP“).
(b) The Customer acknowledges that it will not at any time acquire any right, title or interest in any kind in the Intellectual Property or the Development IP.
12. INDEMNITY AND LIMITATION OF LIABILITY
(a) The Customer will indemnify the Supplier at all times against any loss, damage or costs suffered or incurred by the Supplier as a direct or indirect result of a breach by the Customer of any of its obligations under these Terms (including without limitation all dishonour fees, debt collection, collection agency costs and legal costs on a solicitor/client basis).
(b) Notwithstanding any contrary provision contained in these Terms or elsewhere, the maximum liability of the Supplier to the Customer under or in connection with these Terms or in relation to any Goods and/or Services will be limited at the Supplier's sole option to:
(i) replacement of the Goods or the supply of equivalent Goods;
(ii) the re-performance of the Services; or
(iii) the refund of any amount actually paid by the Customer for the Goods and/or Services.
(c ) Nothing expressed or implied in these Terms will confer any liability on the Supplier for any consequential, indirect or special loss, damage, cost or expense suffered or incurred by the Customer as a direct or indirect result of:
(i) a breach by the Supplier of any of its obligations under these Terms; or
(ii) any use of the Goods otherwise than in accordance with any relevant specifications notified by the Supplier to the Customer.
13. CANCELLATION OR SUSPENSION OF CONTRACT
Subject to clause 2(b), but notwithstanding any other provision set out in these Terms, the Supplier reserves the right to refuse to accept any Order from the Customer and to cancel or suspend the provision of any Goods or Services to the Customer in its sole discretion at any time and without liability to the Customer. The Customer acknowledges that upon acceptance of any Order for the supply of Goods or Services by the Supplier, the Customer will be bound by that Order and will not be entitled to terminate, rescind or cancel any Order placed with the Supplier, without the Supplier's prior written consent.
14. USE OF INFORMATION
The Customer acknowledges that:
(a) any information provided by the Customer to the Supplier may be collected and used by the Supplier for any purpose connected with the Supplier's business including (but not limited to) direct marketing, debt collection and credit reporting or assessment;
(b) the Supplier is authorised to carry out credit checks in relation to the Customer, and where the Customer is a company, about the directors of the Customer and to provide such information to any external agency or party for credit information and assessment purposes necessary for those purposes;
(c ) the Supplier and any external agency or party may retain and/or use such information for as long as they see fit; and
(d) the Customer expressly authorises the Supplier to make any enquiries it considers necessary in considering whether to supply the Customer or extend credit to the Customer. The Customer understands that it has certain rights under the Privacy Act 1993 to access and correct and information held by the Supplier about the Customer.
15. GUARANTEE
(a) Where any person is identified or listed as being a guarantor in consideration of the Supplier, at the Customer's request, agreeing to enter into these Terms, the Guarantor unconditionally and irrevocably guarantees to the Supplier the due and punctual payment by the Customer of any amount which the Customer is required to pay under these Terms and the due and proper performance by the Customer of all of its obligations under these Terms.
(b) In addition, the Guarantor will indemnify the Supplier from and against any liability, loss or damage that the Supplier may incur by reason of any breach by the Customer of the Customer's obligations under these Terms or by reason of the Terms being or becoming void or unenforceable.
(c ) The Guarantor's liability constitutes a principal obligation of the Guarantor. This liability is continuing and will not be released or in any way affected in a manner prejudicial to the Supplier or by any other act, omission, matter, circumstance or law under which the Guarantor would, but for the provisions of this clause, have been released from liability under these Terms. The guarantee may be enforced against the Guarantor without first having recourse to, or without first taking any action against, the Customer.
(d) If more than one person is named as the Guarantor, their liability is joint and several.
16. AGREEMENT TO MORTGAGE
(a) Where it is identified that the Customer grants to the Supplier a mortgage, the Customer irrevocably grants to the Supplier, as security for payment of all money payable by the Customer to the Supplier under these Terms, a registrable mortgage over any of the Customer's estate and/or interest in real estate, as identified.
(b) The terms of the Mortgage will incorporate such covenants and conditions as are included in the Memorandum of Mortgage 2011/4300, or the most current Auckland District Law Society all obligations Memorandum, which Memorandum is registered at the various land registries of Land Information New Zealand.
(c ) The Customer agrees to execute, upon request by the Supplier, in favour of the Supplier any document or authorisation required for the Supplier to register the Mortgage.
17. DISPUTE RESOLUTION
(a) The Customer shall not commence any court proceedings relating to any dispute arising out of the supply of Goods and / or Services (including any dispute as to the validity, breach or termination of any agreement in place between the Supplier and Customer or as to any claim in tort, in equity or pursuant to any statute) unless the Customer has first complied with the following requirements of this clause 17.
(b) A Customer who claims that a dispute has arisen must give written notice to the Supplier specifying the nature of the dispute.
(c ) On receipt of such notice by the Supplier, the parties:
(i) must co-operate and use their best endeavours to resolve the dispute expeditiously by mutual negotiation; and
(ii) must, if they do not resolve the dispute within 21 days of the receipt of the notice (or such further period as they may agree in writing), refer the dispute to mediation („mediation“).
(d) Mediator: The mediation shall be conducted by a mediator appointed by the parties, and at a fee agreed by the parties.
18. GENERAL
(a) 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.
(b) The Supplier and the Customer each acknowledge that these Terms, and any agreement agreed in writing between the parties which expressly refers to these Terms, 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.
(c ) If any provision of these Terms is found to be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions will not be affected.
(d) The Customer may not assign, subcontract or hold on trust for any third party any of its rights under these Terms without the prior written consent of the Supplier. Any change of control of the Customer will be deemed to be an assignment for the purposes of this clause.
(e) Where two or more persons or entities are listed as being the Customer, both parties will be jointly and severally liable for the payment of all amounts owing by the Customer to the Supplier.
(f) The Supplier will not be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, drought, storm or any other event beyond the reasonable control of the Supplier.
(g) Any failure by the Supplier to enforce any provision of these Terms will not be treated as a waiver of that provision, nor will it affect the Supplier's right to subsequently enforce that provision.
