Terms & Conditions
1. DEFINITIONS
1.1. If applicable, capitalised terms have the meaning given to them in this Agreement. In addition, the following definitions apply in this Agreement:
1.2. ‘Supplier,’ ‘we’, or ‘us’ means Atmosphere Heating Limited trading as Atmosphere Heating Limited (our successors and assigns) or any person acting with the authority of Atmosphere Heating Limited.
1.3. ‘Client,’ ‘you’, or ‘your’ means the Client purchasing Goods or Services from us or any person acting on your behalf (including authorised agents).
1.4. ‘Goods’ means all Goods required to complete the Services (including any air conditioning, heat pumps, barbecues, central heating, electric and gas fires and heaters, outdoor heating systems, water heating and wood fires and ovens).
1.5. ‘Services’ means all Services provided to you (including the installation
of air conditioning and heating systems) as specified in any documentation or otherwise provided under this Agreement.
1.6. ‘Worksite’ means the address or location you nominate for us to provide the Goods or Services.
1.7. ‘Price’ means the Price of the Services (in accordance with clause 6).
1.8. ‘Agreement’ means these terms & conditions of trade, as may be amended from time to time (including our privacy policy and any orders, purchases or schedules as applicable).
1.9. ‘Amounts Owing’ means any amount owed by you to us, from time to time, including the Price, any interest payable, any of your liability under this Agreement and any enforcement expenses incurred by us in seeking payment of any Amounts Owing by you.
1.10.‘Business Day’ means Monday to Friday, excluding public holidays in
New Zealand.
1.11.‘Confidential Information’ means all information that could be reasonably regarded in the circumstances as confidential, including information that relates to the business, interests or affairs of a party, this Agreement, the Goods or Services (as applicable), and intellectual property rights, but excludes information which is:
(a)in the public domain, other than as a result of a breach of this Agreement;
(b)in the possession of a party prior to the commencement of this Agreement without any obligation of confidentiality; and
(c)is independently developed or acquired by a party prior to the commencement of this Agreement without relying on information that would itself be Confidential Information.
1.12.‘Event of Default’ means failing to comply with this Agreement (including your obligations in clause 6).
1.13.‘Insolvency Event’ means an event of insolvency or bankruptcy, including: (i) the appointment of an insolvency administrator, manager, receiver or liquidator; (ii) any action related to winding up or making a material arrangement in relation to creditors; (iii) applying for any type of protection against creditors; (iv) being unable to pay your debts as they fall due; or (v) taking or suffering any similar or analogous action in any jurisdiction as a consequence of debt.
1.14.‘Personnel’ means directors, officers, employees, agents and contractors.
1.15.‘CCLA’ means the Contract and Commercial Law Act 2017.
1.16.‘PPSA’ means the Personal Property Securities Act 1999.
1.17.‘CCA’ means the Construction Contracts Act 2002.
1.18.‘Security Agreement’ and ‘Security Interest’ have the meanings given to them in Part 2, sections 16 and 17 of the PPSA.
1.19.‘Regulator’ means any authority, commission, government department, court, tribunal, or similar having regulatory or supervisory authority over the parties or Services.
1.20.‘Related Company’ has the meaning given to it in Part 1, section 2(3) of the Companies Act 1993.
2. INTERPRETATION
2.1. In this Agreement, unless the context otherwise requires:
(a)headings are for convenience only and do not affect interpretation;
(b)a reference to legislation includes all regulations, orders, instruments, codes, guidelines or determinations issued under that legislation or any modification, consolidation, amendment, re-enactment, replacement or codification of it;
(c)a reference to ‘in writing’ includes by email;
(d)the words ‘include’ or ‘including’ or similar expressions are to be construed without limitation;
(e)a reference to a party shall include that party’s successors, permitted assigns and substitutes; and
(f) a word importing the singular includes the plural and vice versa.
3. ACCEPTANCE
3.1. All orders are subject to our acceptance. We may (at our sole discretion) accept any order in whole or part by issuing an invoice for the applicable Services, delivering the Goods or Services or otherwise confirming the order in writing.
3.2. You acknowledge and accept that:
(a)the supply of Goods on credit shall not take effect until you have completed a credit application with us and it has been approved with a credit limit established for the account;
(b)if the supply of Goods requested exceeds your credit limit or the account exceeds the payment terms, we reserve the right to refuse further delivery;
(c)where necessary, this Agreement will be modified or amended to the extent required to comply with any applicable legislation; and
(d)this Agreement shall supersede any other document or agreement between both parties.
3.3. If you place an order for or accept any Services from us, you are taken to accept this Agreement and are bound jointly and severally (including if you are part of a trust, in which case you shall be bound in your capacity as a trustee). You do not need to sign any formal documentation to indicate your acceptance. It will be assumed from you continuing to order any Goods or Services.
3.4. Your acceptance of this Agreement shall continue to all future orders, purchases or schedules (as applicable), and this Agreement will be or is deemed to be incorporated into, and form part of, each order, purchase or schedule as if this Agreement was set out or implied therein in full.
3.5. Both parties shall accept electronic signatures (including acceptance by a receiving mail server) provided both parties have complied with sections in Part 4, subpart 3 and all other relevant sections in Part 4 of the CCLA.
4. AUTHORISED AGENTS
4.1. We are under no obligation to enquire as to the authority of any person placing an order on your behalf.
4.2. If you introduce any third party to us as your authorised agent, you agree that the agent shall have your full authority to order any Services on your behalf, and such authority shall continue until the Services have been completed or you notify us in writing that the third party is no longer your authorised agent.
4.3. Where your authorised agent is to have only limited authority to act on your behalf, you must explain the parameters of the limited authority to us in writing.
5. CHANGES TO DETAILS
5.1. You agree that you will give us (addressed to the financial controller or equivalent) not less than fourteen (14) days prior written notice of any proposed change to your name or any other changes to your details (including changes to the ownership of the company, address, email, contact phone or business structure).
5.2. You acknowledge and accept that if you fail to comply with clause 5.1, you will breach this Agreement and shall be liable for any expense or loss of profit suffered by us (including any Related Company).
6. PRICE AND PAYMENT
6.1. You will pay us the Price set out in any quotation or documentation that we provide to you under this Agreement, plus any ‘Goods and Services Tax’ (as defined and imposed in Part 2, section 8(1) of the Goods and Services Tax Act 1985 (GST)).
6.2. Unless otherwise agreed by us in writing, the Price shall be:
(a)indicated on invoices provided to you in respect of the Services;
(b)our estimated Price (subject to clause 7), with the final Price being ascertained upon completion of the Services (and any variances in the estimated Price of more than ten percent (10%) will be subject to your approval before proceeding with any further Services); or
(c)our quoted Price, which will be binding, subject to your acceptance of our quotation in writing within thirty (30) days.
6.3. The Price will be payable by you on the dates determined by us (at our
sole discretion), which may be:
(a)before delivery of the Goods for online orders;
(b)on delivery of the Goods or completion of the Services;
(c)by way of progress payments in accordance with our agreed progress payment schedule, and such progress payment claims may include the value of any authorised variations and the value of any Goods that have been delivered to the Worksite (whether installed or not);
(d)due twenty (20) days following the end of the month in which a statement or invoice is sent to your address or address for notices; or
(e)seven (7) days following the date of any invoice given to you by us if there is no notice to the contrary.
6.4. Payment may be made by cash, online banking, credit card (including Visa, Master Card and American Express) or any other method we agree to in writing. We use encryption to protect your private information as you enter it on our website, such as the Secure Socket Layer (SSL) protocol. When you pay online by credit card, we use a PCI-DSS-compliant third-party payment gateway to process the payment securely.
6.5. All orders are Priced in New Zealand Dollars and will not be shipped until payment in full has been received.
6.6. If the Price is not set out in quotations or other documentation, the Price for the relevant Goods or Services will be at our standard rate according to our current Price list or at a rate notified to you.
6.7. Where we pay any subcontractor’s account on your behalf, you agree to reimburse us for the payment of the subcontractor’s account within seven (7) days (unless otherwise agreed in writing).
6.8. We reserve the right at any time to alter any Price lists. Any alterations to any Price list will be effective from the date specified by us and apply to all orders or purchases we accept on or after that date.
6.9. Payment in any form other than cash shall not be taken to be payment for the Amounts Owing, and all ownership rights of the Goods or Services remain with us until that form of payment has been cleared and received in accordance with clause 17.1.
6.10.We may require that you pay a deposit or provide a guarantee as security for paying any Amounts Owing.
6.11.At our sole discretion, we may allocate any payment from you towards any invoice that we determine and may do so at the time of receipt or any time afterwards. On any default by you, we may reallocate any payments previously received and allocated, and in the absence of any payment allocation by us, payment will be deemed to be allocated in such a manner that preserves the maximum value of our Security Interests.
6.12.You shall not withhold payment of any Amounts Owing because part of the Services are disputed, and if part of the Services are disputed, you agree that you will:
(a)perform all of your obligations to us under this Agreement and pay in full any Amounts Owing except for the amount that is in dispute; and
(b)provide a specific and detailed explanation of the dispute in writing within seven (7) days from delivery.
6.13.If an Insolvency Event occurs, all Amounts Owing will (whether or not due for payment) immediately become due and payable.
7. VARIATIONS
7.1. We reserve the right to change the quoted Price if:
(a)there is any change to the Services, including: (i) any information supplied by you is inaccurate; (ii) there is an increase or decrease in the quantity of the Goods; (iii) you request any change to plans or specifications; (iv) there is a change in the character or quality of any Good or Services; (v) there are changes to the level, line position, or dimensions of the Services; or (vi) there is any changes to the timing
or sequencing of the Services;
(b)additional Services are required due to hidden or unseen complications that are discovered subsequent to the commencement of the Services (including but not limited to prerequisite work done by a third party that is incomplete or not up to standard, faults found upon disassembling the equipment or the premises (such as covered components, pipes or wires behind walls), barriers obstructing access
(including hard rock or metal below the surface), the presence of asbestos or other health and safety considerations); or
(c)the cost of labour or Goods increases due to changes beyond our control, including: (i) economic factors such as inflation or supply shortages; (ii) any taxes imposed by any Regulator; (iii) overseas transactions that may increase due to variations in foreign currency rates of exchange; or (iv) or international freight and insurance charges).
7.2. The Price will be adjusted to reflect any extra cost or expense we incur due to any instruction received from you (or your authorised agent) or any action or inaction on your part. We will provide written notice where a variation must be completed, and you may not arbitrarily withhold agreement to undertake that variation.
7.3. In addition to any Price adjustment for variations, we shall be entitled to charge for our time and expenses in assessing and pricing any variation (whether or not the variation goes ahead). You shall pay a reasonable additional fee based on our regular hourly rate and expenses (including where you request us to take any steps in preparation for a variation that, for any reason, does not proceed).
7.4. Where you request us to estimate the quantity of the Goods to be supplied from sketches, plans, schedules, specifications or otherwise, you agree to pay for any variation between the estimate and the actual quantities provided, and this Agreement shall be deemed to be adjusted accordingly to reflect the increased Price.
8. DELIVERY
8.1. Delivery of the Goods is taken to occur at the time that:
(a)you or your nominated carrier takes possession of the Goods at our address; or
(b)we (or our nominated carrier) deliver the Goods to your nominated address even if you are absent.
8.2. We endeavour to dispatch orders within twenty-four (24) hours on Business Days, although the Goods may take up to seventy-two (72) hours to be sent from one of our supplier warehouses. Once your order is sent, the nominated carrier will usually deliver within three (3) to five (5) Business Days. Free shipping is available to New Zealand addresses, pending the Goods exceed five hundred dollars ($500) in value. Tracking information is provided by the nominated shipping carrier (when received, we will update your order with the tracking information).
8.3. You authorise us to arrange carriage of the Goods with any subcontractor we nominate. You further agree that we shall have the right to enter into contracts on your behalf (as your agent and without notice) for the delivery of the Goods by any route, means or carrier or for any storage, packing, shipment, loading, unloading or handling of the Goods by any person at any place and for any length of time (and for such other services we deem necessary or desirable to the delivery of the Goods).
8.4. In addition to appointing us as your agent to enter into any contract we (at our sole discretion) deem necessary to complete delivery of the Goods, you shall be bound by the terms of any consignment note or other contractual document which we may receive for the Goods, or for any package, unit or container in which the Goods may be packed (whether packed by us or any other person).
8.5. If the Goods have not been packed by us (or on our behalf by our approved contractor), we shall not be liable for any loss of or damage to the Goods caused by:
(a)how the carrier has stowed the Goods; or
(b)the unsuitability or defective condition of any packaging provided by the manufacturer.
8.6. If you instruct us to use a particular method of carriage, we will give priority to the method designated, but if that method cannot be conveniently provided, you unconditionally authorise us to have the Goods delivered by any method we choose.
8.7. We will deliver the Goods or Services to the delivery location that we each agree to in writing, and if the delivery location is at your premises (subject to clause 25), you will provide us (and our Personnel) with suitable access to the premises, together with any amenities we reasonably require to perform delivery of the Goods or Services.
8.8. Our responsibility is to ensure that the Services start as soon as possible. However, we shall not be liable for any delay caused by: (i) variations or additional work; (ii) a failure or delay on your part in complying with your obligations under this Agreement (including paying the deposit, providing proof of finance or insurance, obtaining consents, ensuring all necessary services are available at the Worksite, or providing us with access to and possession of the Worksite for the purpose of carrying out the Services); (iii) any other delays for which you are responsible (including delays caused by third parties you have engaged); (iv) suspensions of the Services by either party; (v) delays on the part of a consenting authority or other Regulators; (vi) weather conditions affecting the Services completion; (vii) unforeseen health and safety requirements (such as the discovery of asbestos); (viii) if (despite our reasonable endeavours), subcontractors or Goods are unavailable; (ix) any matter covered clause 31.8 of this Agreement (including industrial action such as strikes or pandemics); (x) dispute resolution procedures invoked by either party in circumstances that, in our reasonable opinion, make it impracticable to proceed as otherwise planned; (xi) legal proceedings, relating to the Services, commenced or threatened by a third party in circumstances that make it impracticable for us to proceed; or (xii) any other matter outside our reasonable control.
8.9. If we cannot supply the Services as agreed solely due to any action or inaction of you, then we shall be entitled to charge a reasonable fee for the re-supplying of Services at a later time and date (including storage of the Goods if applicable).
8.10.If we are required to provide the Services urgently, which may require us to work outside regular business hours (including working through lunch breaks, weekends or public holidays), we reserve the right to charge additional costs unless otherwise agreed between the parties.
8.11.Any time specified by us for delivery of the Goods is an estimate only, and we will not be liable for any expenses or losses incurred due to your reliance on our estimated time for delivery, nor can you cancel any order for any delay in delivery that is less than fourteen (14) days after our estimated time for delivery (or any delay in delivery due to any event beyond our control).
8.12.You accept that the supply of Goods for accepted orders may be subject to availability, and if, for any reason, Goods are not or cease to be available, we reserve the right to substitute comparable Goods (or components of the Goods) and vary the Price (in accordance with clause 7). In all such cases, we will notify you in advance of any such substitution and reserve the right to place your order on hold until both parties agree to such changes.
8.13.We may deliver the Goods in separate instalments, which will be
invoiced and paid as individual transactions.
9. ERRORS AND OMISSIONS
9.1. You agree that we have no liability regarding any errors or omissions:
(a)resulting from any inadvertent mistake made in the formation or administration of this Agreement; or
(b)contained in any documentation supplied to you regarding the Services.
9.2. If such an error or omission occurs that is not attributable to our negligence or wilful misconduct, all obligations or rights under or in connection with this Agreement shall continue in full force and effect.
10. DEFECTS
10.1.You shall inspect all Goods or Services immediately on delivery and shall notify us of any alleged defect, shortage in quantity, damage or any other issue within seven (7) days from the date of delivery.
10.2.If you do not notify us within the seven (7) day timeframe (in accordance with clause 10.1), the Goods or Services shall be presumed to be free of defects, and we will consider all Goods or Services to be supplied free from any defect or other issue (subject to clause 14.1).
10.3.You shall allow us to inspect the Goods or Services within fourteen (14) days (from the date of delivery) if you believe the Goods or Services are defective.
10.4.A defect does not include any fair wear and tear or damage resulting from your failure to follow our reasonable instructions.
11. RETURNS AND WARRANTIES
11.1.We only accept returns if your item is faulty, damaged or is not fit for purpose (at our sole discretion), provided that:
(a)the Goods are returned to us within thirty (30) days of delivery;
(b)we have agreed in writing to accept the return of the Goods;
(c)the Goods are returned in the condition in which they were received (including all packaging material, brochures and any instructions in as new condition as is reasonably possible);
(d)we will not accept the return of Goods that have not been stored or used correctly; and
(e)return of the Goods for credit may incur a restocking fee of twenty-five percent (25%) of the Price of the Goods (and any additional freight costs we incur).
11.2.If you wish to return any Goods, please contact us, and we will assign you a return identification number and provide the next steps. For returns where the Goods are faulty, we will provide:
(a)a replacement unit shipped free; or
(b)a store credit to the amount of the unit, excluding any shipping.
11.3.Subject to the conditions of the warranty set out in clause 11.4, we warrant that if any defect in any of our workmanship becomes apparent and is reported to us within twelve (12) months from the date of delivery (time being of the essence), we will either (at our sole discretion) replace or remedy the defect.
11.4.The conditions applicable to the warranty given under clause 11.3 are:
(a)the warranty shall not cover any defect or damage which may be caused by or arise through: (i) failure on your part to maintain any Goods or Services properly; (ii) failure on your part to follow any instructions or guidelines we provide; (iii) any use of the Goods or Services for any purpose other than the appropriate applications specified on the quote, invoice or any other documentation supplied to you; (iv) the continued use of any Goods or Services after any defect becomes apparent (or would have become apparent to a reasonably competent operator); (v) fair wear and tear; or (vi) any accident or act of God;
(b)we shall not be liable to compensate you for any delay in remedying the defect or in properly assessing your claim regarding the defective Services; and
(c)the warranty shall cease, and we shall in no circumstances be liable (including the warranty set out in clause 11.3) if the defect is repaired, altered or overhauled by any third party without our consent.
11.5.For any Goods not manufactured by us, the warranty shall be the current warranty provided by the manufacturer, and we shall not be bound by any condition, representation, or warranty other than what the manufacturer offers.
12. PRIVACY ACT 2020
12.1.You authorise us and our agents to collect, use, retain and disclose ‘personal information’ (as defined in Part 1, section 7 of the Privacy Act 2020) about you and your Personnel that you or they provide to us for the following purposes:
(a)exercising our rights or performing our obligations under this Agreement;
(b)using the services of credit reporting and debt collection agencies, and you consent to us disclosing personal information (including any information about an Event of Default or repayment history) to a credit reporter, who may hold that information and use it to provide its credit reporting services;
(c)registering any Security Interest under this Agreement;
(d)direct marketing purposes (including by email and other electronic means), unless you notify us that you do not wish to receive direct marketing from us; and
(e)the use or transfer of personal information to a Related Company in connection with the performance of our obligations or exercise of our rights under this Agreement.
12.2.Clause 12.1 is authority and consent from you in accordance with sections in Part 3 and all other relevant sections in the Privacy Act 2020.
12.3.You (if you are an individual) have the right under information privacy principles 6 and 7, and sections in Part 4, subpart 1 and Part 4, subpart 2 of the Privacy Act 2020 to access, and request correction of, any of your personal information held by us, and if you provide any personal information about a third party (including your Personnel) to us, you confirm that you are authorised to do so by the relevant individual, and you have informed the relevant individual that they have the right to contact us to access and, if applicable, request correction of any personal information that we hold about them.
12.4.If the Services are expected to involve the sharing of any data sets, or other personal information, to you by us or us to you, we will enter into a separate data protection agreement with you.
12.5.If you do not provide the personal information requested, we may be unable to perform our obligations under this Agreement.
13. CONFIDENTIAL INFORMATION AND INTELLECTUAL PROPERTY
13.1.Each party must keep confidential all Confidential Information, however, nothing in clause 13 prevents a party from disclosing Confidential Information:
(a)in the circumstances expressly provided for in this Agreement;
(b)if the disclosure is required by law or Regulator (but only to the extent
necessary); or
(c)if the disclosure is reasonably required to enable a party to perform its obligations or enforce its rights under this Agreement.
13.2.We may disclose Confidential Information to a Related Company and their Personnel on a ‘need to know’ basis, provided that person is under a duty to keep the Confidential Information confidential in accordance with this Agreement.
13.3.We own all right, title and interest (including all intellectual property rights) in the Goods or Services at all times.
13.4.Any new intellectual property created as a result of, or in connection with, the provision of our Goods or Services will be owned by us (unless otherwise agreed in writing).
13.5.If, notwithstanding clauses 13.3 and 13.4, any intellectual property rights in any of our Goods or Services vests in you, you assign those intellectual property rights to us with effect from creation and agree to do all things reasonably required by us to give effect to such assignment.
13.6.You warrant that the use by us of any designs, instructions, plans, specifications or other technical information provided by you will not infringe the intellectual property rights of any other person and indemnify us against any expenses or losses (including full legal costs on a solicitor client-basis) that we may incur or suffer in the event of any such infringement.
14. CONSUMER GUARANTEES ACT 1993 & FAIR TRADING ACT 1986
14.1.Subject to clause 14.2, nothing in this Agreement will affect any rights you may have as a ‘consumer’ (as defined under the Consumer Guarantees Act 1993 (CGA)) under the CGA.
14.2.For the purposes of section 2 and Part 5, section 43(2) of the CGA, the parties acknowledge and agree that, if you are acquiring, or hold yourself out as acquiring, the Goods or Services in trade:
(a)to the extent permitted by law, you are contracting out of the CGA (to the extent that the CGA would otherwise apply to any matters covered by this Agreement); and
(b)it is fair and reasonable for the parties to be bound by clause 14.2.
14.3.If you are acquiring the Goods or Services to resupply the Goods or Services in trade, you undertake that you will:
(a)contract out of the CGA to the maximum extent permitted by law in your contracts with your clients; and
(b)procure that your clients, and each person in the distribution chain thereafter, contract out of the CGA to the maximum extent permitted by law in their contracts with clients.
14.4.For the purposes of section 5D of the Fair Trading Act 1986 (FTA), the parties acknowledge and agree that, if you are acquiring, or hold yourself out as acquiring, the Goods or Services in trade:
(a)to the extent permitted by law, you are contracting out of sections 9, 12A and 13 of the FTA; and
(b)it is fair and reasonable for the parties to be bound by clause 14.4.
14.5.You will indemnify us against any expenses or losses incurred by us due to your breach of clause 14.
15. CANCELLATION
15.1.Either party may cancel the Services provided under this Agreement if:
(a)any provision in this Agreement expressly authorises cancellation in
the circumstances; or
(b)either party have permanently abandoned the Services or has become permanently incapable of complying with the obligations under this Agreement.
15.2.If we choose to cancel the Agreement, without prejudice to our other rights and remedies, we may forfeit your deposit or any amount paid in advance and apply it to any Amounts Owing, damages, costs, interest or other Amounts Owing are entitled (including any loss of profit).
15.3.If either party becomes entitled to cancel this Agreement, the cancellation shall take effect on the service of a notice on the other party (in accordance with clause 31.7) advising of the cancellation (and the particular statutory provision, clause, or grounds relied upon to justify the cancellation).
15.4.We shall be entitled to cancel all or part of any order of yours which remains unperformed, and all Amounts Owing to us shall (whether or not due) become immediately payable if: (i) any Amounts Owing to us become overdue, or in our opinion, you will be unable to meet your payments as they fall due; or (ii) an Insolvency Event occurs, and you become insolvent or bankrupt, convene a meeting with your creditors, or a liquidator or similar person is appointed for you or any of your assets.
15.5.Where you cancel the Agreement, any guarantee provided may be withdrawn or rendered void (including the warranty in clause 11). To avoid rendering the warranty void, you must act in good faith and consult with us regarding the options for a resolution (including obtaining our prior written consent to a proposed cancellation).
15.6.Orders to your specifications or non-stock-list items cannot be cancelled once production has commenced.
15.7.All provisions of this Agreement intended to continue in force beyond cancellation shall continue to bind the parties (in accordance with clause 31.12).
15.8.Subject to clause 15.7 on cancellation, each party shall be immediately discharged from any further obligation or liability regarding the Services and this Agreement (without prejudice to any right or remedy arising from either party’s prior breach of this Agreement or unlawful act occurring before cancellation).
16. EVENT OF DEFAULT
16.1.Unless waived by us in writing, we may charge interest at a rate of two and a half percent (2.5%) per calendar month on any outstanding Amounts Owing from the due date of payment until the date the outstanding amount is paid (and interest shall compound monthly at such a rate).
16.2.You agree to reimburse us for any fees or expenses we incur in recovering any Amounts Owing (including, without limitation, administration fees, debt collection agency fees, disbursements and full legal costs on a solicitor-client basis).
16.3.Should you fail to pay any account, we may withhold the release of any producer statement, certification, or documentation relating to the Services provided until all Amounts Owing are paid in full.
17. RETENTION OF TITLE
17.1.Ownership (including all right, title and interest) of the Goods and Services remains with us until:
(a)we have received all Amounts Owing; and
(b)you have performed all of your obligations under this Agreement.
17.2.If any Amounts Owing is overdue, or an Insolvency Event occurs, you give irrevocable authority to us to use reasonable force to enter anywhere Goods may be stored, to remove any Goods. We shall not be liable in contract, tort or otherwise for any damages, expenses, or losses incurred by you or any third party, and you indemnify us against any liability we may have to any third party (including full legal costs on a solicitor-client basis), as a result of us exercising our rights under clause 17.2 (except where damages, costs or losses are due to our negligence or fraud).
17.3.If you resell or use any Goods before ownership of the Goods has passed to you (including combining or processing the Goods), the proceeds of such sale or use will be received and held by you (in whatever form) in trust for us to the extent of the Amounts Owing (where our interest as beneficiary under that trust will be that portion of the proceeds which is equivalent to the Amounts Owing to us and the balance of the proceeds (if any) will be your beneficial interest under that trust).
17.4.It is further agreed that:
(a)where possible, the Goods shall be kept separate and identifiable until we have received full payment and you have fulfilled all of your obligations under this Agreement; and
(b)until ownership of the Goods passes to you, we may give you written notice to return the Goods (or any accessories or components), and your rights to obtain ownership or any other interest in the Goods shall cease.
17.5.If any Goods are damaged where full payment has not been received, you agree that we are entitled to:
(a)receive all insurance proceeds paid for the Goods; and
(b)deal directly with the insurance company to receive all insurance proceeds paid for the Goods we own (in accordance with clause 17.1).
17.6.We may commence proceedings to recover the Price of the Services provided, notwithstanding that ownership of the Goods or Services has not passed to you.
18. SECURITY AND LIEN
18.1.Subject to us providing any Goods or Services, you charge all of your right, title and interest (whether joint or several) in any land, real estate or other assets capable of being legally charged with a lien owned by you either now or in the future, to secure the performance of all obligations (including full payment of all Amounts Owing) under this Agreement.
18.2.You irrevocably appoint all directors of our companies (including any Related Company) as your true and lawful attorney(s) and agree that the appointed attorney(s) may perform all necessary acts to enforce our rights provided in clause 18.1 of this Agreement (including signing any document on your behalf).
18.3.You are liable for all our disbursements and expenses (including full legal expenses on a solicitor-client basis) incurred in exercising our rights under clause 18 to secure the performance of your obligations under this Agreement.
18.4.In accordance with Part 5, subpart 5 of the CCLA, we hold a lien for work done and may sell at public auction any property that has been left by you for Services if any Amounts Owing are outstanding.
18.5.It is fair and reasonable for the parties to be bound by clause 18.
19. PERSONAL PROPERTY SECURITIES ACT 1999
19.1.You acknowledge and agree that:
(a)this Agreement constitutes, in favour of us, a Security Agreement creating a Security Interest in the Goods or Services or the proceeds of such Goods or Services; and
(b)the Security Interest granted to us secures the payment of all Amounts Owing (all present and after-acquired personal property) you may owe us from time to time and at any time.
19.2.You agree that you will sign any further documentation and provide any information which we may reasonably require to ensure we are paid all Amounts Owing due to us and otherwise to protect our interests under this Agreement, including by registration of a financing statement and to ensure that we have a first ranking perfected Security Interest in the Goods or Services, or a Security Interest in the proceeds of any Goods or Services (a Security Interest taken in all collateral and any proceeds of any collateral).
19.3.To the extent permitted by law, we each contract out of:
(a)sections 114(1)(a), 133 and 134 of the PPSA; and
(b)your rights referred to in sections 107(2)(a), (c), (d), (e), (f), (g), (h) and (i) of the PPSA.
19.4.You waive your right to receive a verification statement under section 148 of the PPSA regarding any financing statement relating to a Security Interest.
19.5.Nothing in this Agreement is to be construed as an agreement that: (i) a Security Interest in Goods (collateral) attaches at a later time than the time specified in Part 3, section 40(1) of the PPSA; (ii) a Security Interest is perfected in accordance with Part 3, section 41(1) of the PPSA; (iii) a Security Interest in all after-acquired property attaches at the time specified in Part 4, section 44(1) of the PPSA; and (iv) a Security Interest in collateral shall extend to the proceeds as specified in Part 4, section 45(1) of the PPSA.
19.6.Each Security Interest is a continuing Security, notwithstanding any intermediate payments, settlement of accounts or anything else.
19.7.You must provide us with information and any associated documentation reasonably requested by us from time to time relating to your financial status.
19.8.If at any time we consider that your financial status is unsatisfactory, we may require you to grant additional Security Interests as security for the Amounts Owing, and we may suspend or cancel further supply of Goods or Services until you have provided such Security Interests.
19.9.You shall unconditionally ratify any actions taken by us under clause 19.
20. NOTIFICATION OF SERVICES
20.1.You must precisely locate all unseen or underground services on the Worksite and mark the same prior to us commencing any of the Services (including electrical services, gas services, sewer services, water mains, telephone cables, fibre optic cables, or any other services that may be present on the Worksite).
20.2.You agree that we are in no way liable for any damages, expenses or fines incurred due to unseen or underground services that are not precisely located and marked by you (in accordance with clause 20.1).
21. WORKSITE ACCESS
21.1.It is your responsibility to ensure that:
(a)we have clear and free access to the Worksite to deliver the Goods or undertake the Services (including carrying out any inspections or for the delivery or installation of the Goods). We shall not be liable for any loss or damage to the Worksite (including damage to pathways, driveways, concrete, paved tiles or grassed areas) unless due to our negligence; and
(b)access is suitable to accept the weight of laden trucks or other heavy equipment as we may deem necessary.
21.2.Inspection of the Worksite during the course of the Services shall be by appointment only, and we must accompany you at all times when on the Worksite unless otherwise agreed.
21.3.It is your responsibility to organise temporary fencing to protect the Worksite from damage or theft if any fencing or other boundary is removed.
22. SURPLUS GOODS
22.1.We are not responsible for removing excess Goods or rubbish (including demolished materials) from the Worksite, and any rubbish we generate will be placed in a designated area appointed by you.
22.2.Goods that we bring to the Worksite, which are surplus at the completion of the Services, will remain our property.
23. CLIENT’S RESPONSIBILITIES
23.1.You agree to remove any furniture, furnishings or other property from the vicinity where the Services will be completed and accept that we shall not be liable for any damage caused by your failure to remove any property unless due to our negligence.
23.2.You warrant that you have sufficient funds available to honour your payment obligations and will, on request, provide us with evidence verifying such funds through a letter of credit from your banking institution.
24. INSURANCE AND RISK
24.1.Where we retain ownership of the Goods or Services (in accordance with clause 17.1), you acknowledge and accept that:
(a)if we supply Goods only, all risk for the Goods shall immediately pass to you on the delivery (by us or our nominated carrier), and you must insure the Goods on or before delivery; or
(b)if we are to supply and install Goods, we shall maintain an insurance policy for the Services until completion, at which point all risk shall immediately pass to you.
24.2.We cannot guarantee that the appearance of colours shown on our website exactly reproduces the appearance or colours of the physical Goods themselves (and the Goods may show some variations from the digital images).
24.3.You acknowledge that if asbestos or any other toxic substances are discovered at the Worksite, your responsibility is to ensure safe removal. You further agree to indemnify us against any costs incurred due to such discovery. Under no circumstances will we handle removing any asbestos product unless otherwise agreed by us in writing.
24.4.If, for any reason, we, or employees, reasonably form the opinion that your premises are not safe for the installation of the Goods to proceed (including the discovery of asbestos, defective plumbing or wiring, or dangerous access to crawl spaces), we shall be entitled to delay the installation of the Goods until we are satisfied that it is safe to proceed. We may (at our sole discretion) agree to bring the premises up to a standard suitable for the installation to proceed, but all additional Services shall be treated as a variation (in accordance with clause 7).
24.5.Where you have supplied Goods for us to complete the Services, you accept responsibility for the suitability of purpose, quality and any faults inherent in those Goods, and if (in our opinion) it is believed that the Goods supplied will not conform to New Zealand regulations (set out by any Regulator), we shall be entitled to halt all Services until the appropriate conforming Goods are sourced (and you will be solely liable for all additional expenses incurred, which will be invoiced as a variation in accordance with clause 7).
24.6.Where we have provided information or figures to you regarding the performance of the Goods, you accept that these have been given in good faith and are estimates based on the Energy Efficiency and Conservation Authority (EECA) or information provided by a manufacturer. The energy efficiency may be less than estimated due to factors out of our control (including geographical location).
24.7.You accept that we are only responsible for Goods or Services that are provided or replaced by us, and we do not accept any responsibility for previous Services carried out by any third party or for any loss or damage to the Goods or Services that are caused by any other third party after the completion of the Services.
24.8.You acknowledge and accept that:
(a)all descriptive specifications, illustrations, drawings, data dimensions, and weights stated in our fact sheets, Price lists, or advertising material are indicative only and are not to be relied upon; and
(b)where we have performed temporary repairs: (i) we offer no guarantee against the reoccurrence of the initial fault or any further damage caused; and (ii) we shall provide you with an estimate for the repair.
24.9.Should you request us to leave Goods outside our premises for collection or deliver the Goods to an unattended location, you agree that those Goods shall be left at your sole risk.
25. HEALTH AND SAFETY AT WORK ACT 2015
25.1.Each party will comply with the Health and Safety at Work Act 2015 (HSW Act), including all health and safety duties specified in Part 2 of the HSW Act, and all other applicable standards and codes of practice relating to health and safety. In addition, each party will comply with the other party’s pre-notified and reasonable health and safety policies when on the party’s premises.
25.2.You must notify us of any known hazards arising from your premises to which any person may be exposed, as well as inform us of any notifiable injury, illness, incident or event (as defined in Part 1, subpart 3 of the HSW Act) to ensure that your workplace is without risks to the health and safety of any person.
25.3.Each party must consult, cooperate and coordinate activities with all other persons who have a health and safety duty in relation to the same matter in providing the Goods or Services (including in connection with the delivery of the Goods or Services).
26. PLANS AND SPECIFICATIONS
26.1.Where you supply us with any plans, specifications or other technical information (such as CAD drawings or any other electronic software that provides detailed plans and specifications), you will be responsible for providing accurate information, and we shall be entitled to rely on the accuracy of the information you provide.
26.2.If there is any discrepancy between the drawings and the specifications, precedence will be determined based on the election of authority agreed to by both parties and recorded in writing. If no election of authority has been made, then the drawings will take precedence, and you agree that:
(a)figured specifications take precedence over scaled specifications;
(b)large-scale specifications take precedence over small-scaled specifications;
(c)amended drawings take precedence over older drawings; and
(d)all drawings and specifications are subject to any building consent.
26.3.We are not responsible for any errors in the Goods or Services or additional expenses caused by you supplying inaccurate information.
27. STATUTORY COMPLIANCE AND CONSENT
27.1.We will obtain and pay (on your behalf) for any building or resource consent and other necessary approvals and inspections required for the Services (including consents, approvals or reports required after the commencement of the Services, such as geotechnical data). You appoint as your agent to obtain such consents, approvals and reports and agree to do all things necessary to facilitate such agency.
27.2.You acknowledge and agree that:
(a)we shall be responsible for applying for and obtaining the code compliance certificates for the Services; and
(b)you shall provide us with all the necessary information to apply for code compliance certificates.
27.3.Both parties acknowledge and agree to comply with the Building Act 2004 when performing the Services (the ‘building work’ as defined in Part 1, section 7 of the Building Act 2004) under this Agreement.
28. CONSTRUCTION CONTRACTS ACT 2002
28.1.If you are a ‘residential occupier’ (as defined in Part 1, section 5 of the CCA), then you agree that we shall have the right to suspend any Services by providing five (5) days written notice should a payment claim be served on you and an Event of Default occurs, in accordance with section 24A in Part 2, subpart 4 of the CCA.
28.2.Should we suspend the Services, it shall not be considered a breach of this Agreement, and we are not liable for any losses or expenses you incur due to the suspension of Services under clause 28.1.
28.3.In the event the Services are suspended, we shall be entitled to an extension of time to complete any Services that remain incomplete under this Agreement, and you agree that:
(a)we retain the right to cancel this Agreement whilst the Services are suspended, and all other rights available to us in this Agreement shall remain in full force and effect; and
(b)we may exercise any rights for payments or adjudication of disputes
under Part 2 and Part 3 of the CCA.
29. SUBCONTRACTORS AND THIRD PARTY SUPPLIERS
29.1.We may subcontract any portion of the Services but may not assign or sublet the whole of the Services without your written consent.
29.2.We shall be responsible for:
(a)our Subcontractor’s work;
(b)making all reasonable endeavours to ensure that our subcontractors have appropriate insurance in place;
(c)making all reasonable endeavours to obtain applicable warranties, guarantees, certificates and records of work required from our employees and subcontractors; and
(d)taking all reasonably practicable steps to ensure our employees and subcontractors comply with health and safety legislation regarding the Services (in accordance with clause 25).
29.3.If you request and authorise us to arrange the provision of Goods or Services directly to you by a third party supplier (and we are not the head contractor), to the extent applicable, this Agreement shall apply to our Services in arranging such supply, provided that we exclude all liability in connection with the supply of Goods or Services to you directly by a third party supplier. You agree to pay all Amounts Owing under this Agreement if we arrange any supply of Goods or Services
provided directly to you by a third party supplier.
30. LIABILITY
30.1.To the extent permitted by law, we shall have no liability whatsoever to you for any direct or indirect expense or loss of profit suffered by you arising out of a breach by us of this Agreement (including any unintentional misrepresentation made to you by us regarding any of the Goods or Services).
30.2.To the extent permitted by law, our liability shall not exceed the Price of the Services provided by us under this Agreement.
30.3.To the extent permitted by law, our total liability under or in connection with this Agreement and the Goods or Services is limited to, at our option:
(a)in the case of Goods, any one or more of the following: (i) the replacement of the Good(s) or the supply of equivalent Good(s); (ii) the repair of the Good(s); (iii) the payment of the expense of replacing the Good(s) or of acquiring equivalent Good(s); or (iv) the payment of the expense of having the Good(s) repaired; or
(b)in the case of Services: (i) resupplying the Services; or (ii) the payment of the expense of having the Services resupplied.
30.4.If, notwithstanding clause 29, we have any liability under or in connection with this Agreement, to the maximum extent permitted by law:
(a)(our total aggregate liability to you for any loss, damage or liability arising out of or in connection with this Agreement will be limited to the lesser of: (i) the Price paid by you to us for the applicable Goods or Services; or (ii) the actual loss or damage suffered by you); and
(b)we will not be liable for any: (i) indirect, special or consequential loss or damage whatsoever; or (ii) loss of profits, revenue, data, goodwill, clients, opportunities or loss of or damage to reputation.
30.5.The limitations and exclusions on liability in this clause 30 will apply irrespective of the legal basis for the applicable claim, including contract, equity, tort or statute, except negligence and fraud.
30.6.In no circumstances will we have any liability whatsoever under or in connection with this Agreement:
(a)for the acts or omissions of any third party;
(b)any act or omissions performance in accordance with your
instructions (or instructions from your authorised agents); or
(c)to any third party.
31. GENERAL
31.1.Governing law: This Agreement is governed by and to be construed in accordance with the laws of New Zealand, and each party submits to the exclusive jurisdiction of the courts of New Zealand.
31.2.Entire Agreement: This Agreement constitutes the entire agreement of the parties about its subject matter and supersedes all previous agreements, representations and understandings.
31.3.Priority: To the extent of an inconsistency between:
(a)this Agreement;
(b)all other schedules to this Agreement;
(c)any privacy or data agreement (if applicable); and
(d)the order of priority set out above will apply (with (a) having the highest priority).
31.4.Subcontracting: We may subcontract the performance of our obligations (including to a Related Company) on the basis that we remain solely liable to you for the performance of our obligations.
31.5.Assignment: You must not assign, novate or transfer your rights or obligations under this Agreement without our prior written consent (which may be withheld at our sole discretion). We may assign this Agreement to any other person. Without limiting the foregoing, we may assign to any other person all or part of the Amounts Owing by you.
31.6.Amendments: Except where stated otherwise in this Agreement, any amendment to this Agreement must be in writing, signed by both parties, except where we are required to make changes to ensure compliance with applicable laws, in which case we can give you notice of any such amendments required, and you will be bound by the same.
31.7.Notices: Any notice, demand or other communication to be served on a party must be in writing and sent by personal delivery, pre-paid post or email to the address of the relevant party (or otherwise notified to the other party from time to time). Any notice or other communication is deemed to be received (i) if personally delivered, on receipt, (ii) if posted by pre-paid official postal service, on the fifth Business Day after posting (or seven Business Days after posting if sent from one country to another), and (iii) if sent by email on the date and time that the email was sent (as evidenced in the sender’s email sent history). Notices received after 5pm on a Business Day will be deemed received on the next Business Day.
31.8.Force majeure: We will not be liable to you for any failure or delay in performing our obligations under this Agreement where such failure or delay is caused by events or circumstances beyond our reasonable control (including any strike, lockout, labour dispute, delay in transit, embargo, epidemic, pandemic, accident, emergency, order of government or other authority or act of god).
31.9.Severability: If any part of this Agreement is illegal or unenforceable, you agree that part shall be amended to the extent permitted by law to allow the enforceability of any rights, and if it is not able to be modified, then it will be severed, and all remaining rights in this Agreement will continue in full force and effect.
31.10.Waiver: A single or partial exercise or waiver of a right relating to this Agreement does not prevent any other exercise of that right or the exercise of any other right.
31.11.Termination: Either party may terminate this Agreement immediately by written notice if the other party breaches a term of this Agreement which is not capable of remedy or, where the breach is capable of remedy, fails to remedy the breach within 20 Business Days of written notice of the breach.
31.12.Survival: Any rights or obligations under or in connection with this Agreement, which is by nature a continuing obligation, will survive termination of this Agreement by either party.
31.13.Rights of third parties: This Agreement is not intended to confer a benefit on any person other than the parties to this Agreement.
31.14.Relationship: We will provide Goods or Services to you as an independent contractor. Nothing in this Agreement creates any partnership, joint venture or employment relationship between the parties.
31.15.Non-exclusive: This Agreement is not exclusive, and you agree that there are no restrictions on us to provide any Goods or Services to any other person.
31.16.Counterparts: This Agreement may be executed in any number of
counterparts (including by electronic signature or email exchange of pdf
copies), constituting one instrument.