Terms and Conditions
1.0
Acceptance
1.1
Any acceptance of a Proposal or
order for Our Goods or Services constitutes Your acceptance of Our Contract for
the provision of such Goods or Services, subject to our right to decline any
such order or acceptance at Our discretion.
1.2
If there is any inconsistency
in the Contract between the Conditions and a Proposal then, except where the
Proposal explicitly provides otherwise, the Conditions will prevail.
2.0
Price and Payment
2.1
The price for the Contract will
be as quoted in the Proposal. The price quoted in the Proposal is valid for a
period of 30 days, subject to Our right to vary or withdraw the quote at any
time prior to Your acceptance.
2.2
Any clerical errors and omissions
(including computational errors) in the Proposal, an invoice, or otherwise recorded
will be subject to correction.
2.3
Unless We agree in writing
otherwise, payment of the Charges is required in full on the day of completion
of the Services, time of payment being of the essence.
2.4
If You fail to pay any Charges
as they fall due under the Contract, then for each failure You will pay on
demand a late payment fee of $10.
2.5
The Charges do not include
goods and services tax, unless expressly stated otherwise. Goods and services
tax is payable by You in relation to the provision of Services.
3.0
Warranty
3.1
Subject to clauses
3.2
and
3.3
, We provide
a 3 month warranty on Goods and Services, and We warrant that such Goods and
Services will be provided in accordance with manufacturer’s specifications.
(a)
the claim is notified to Us
within 3 months of the date the Services were provided; and
(b)
the claim is notified to Us
within 5 days of the defect becoming apparent to You; and
(c)
We are given a reasonable
opportunity to investigate the claim.
4.0
Consumer Guarantees Act 1993
4.1
If We are supplying Goods and
Services to You for business purposes within the meaning of the Consumer
Guarantees Act 1993, pursuant to Section 43 the provisions of that Act will not
apply to this Contract.
4.2
If the Contract is subject to
the Consumer Guarantees Act 1993, then the terms of the Contract will be
subject the provisions of that Act to the extent those provisions are unable to
be contracted out of.
5.0
Risk and Ownership
5.1
The Goods will be at Your risk
immediately on delivery. You will insure the Goods at full replacement value
until legal and beneficial ownership of them has passed to You. If the Goods
are damaged or destroyed before legal and beneficial ownership of them has
passed to You, then You will hold the proceeds of such insurance in a separate
fund and on trust for Us.
5.2
Legal and beneficial ownership
of the Goods will remain with Us until payment in full is made for the Goods
and for all other Charges owing by You to Us.
5.3
Until legal and beneficial
ownership of the Goods has passed to You, You will store the Goods separately
from other goods.
5.4
Without prejudice to any of Our
other remedies, if any amount payable by You to Us is overdue or You are
otherwise in breach of the Contract, then We reserve the right, and You hereby
irrevocably provide consent to Us, to enter (whether forcibly or otherwise) by
Our employees or duly authorised agents onto Your premises, or onto any
premises where Goods owned by the Us are reasonably thought to be stored and
repossess and subsequently resell such Goods.
5.5
Notwithstanding any period of
credit, if You wish to sell the Goods before ownership of them has passed, You
may do so as principal in relation to the sub-purchaser and as agent as between
Us and You. You have no right to commit Us to any contractual relationship with
any third party. You will account to Us for the proceeds of such sales and You
will ensure that, until You have accounted for them, such proceeds are at all
times identifiable, held in a separate fund on trust for Us and can at the Our
request be paid to Us.
6.1
You grant to Us a registrable
"security interest” (as that term is defined in the Personal Property
Securities Act 1999 ("PPSA”)) and a lien in Your goods stored at Our premises
and in the Goods supplied to You (and in the proceeds of all such Goods as well
as in any negotiable instrument representing any such proceeds) as security for
the satisfaction of Your obligations under the Contract.
6.2
You agree that nothing in
sections 114(1)(a), 133 and 134 of the PPSA will apply to this Contract, or the
security interest under this Contract; and You waive Your rights under sections
116, 120(2), 121, 125, 126, 127, 129, 131 and 132
6.3
You waive the right to receive a
copy of any verification statement confirming registration of a financing
statement as that term is defined in the PPSA.
6.4
You will provide Us on request
with all information necessary for the registration of Our security interest in
terms of the PPSA and will ratify all actions taken by us under clause
6.0
.
7.0
Privacy Act 1993
7.1
You authorise Us to collect
personal information about You (whether contained in this Contract or otherwise
obtained) and authorise such information to be held, used and disclosed for the
following purposes:
(a)
administering, whether directly
or indirectly, Our contracts and enforcing Our rights thereunder;
(b)
marketing goods and services
provided by Us;
(c)
advising any credit agency or
provider (including credit recovery providers) for the purposes of providing or
obtaining a credit reference, debt collection or notifying any default by you.
7.2
You have the right under the
Privacy Act 1993 to obtain access to and to request correction of any personal
information concerning You held by Us, and such personal information will be
held by Us at 64 Seddon Street.
7.3
You authorise Us to obtain, at
any time from any person or entity, any information We may require to perform
or complete any of the purposes for which You have provided personal
information to Us. You authorises any
such person to release to Us any personal information that person holds concerning
You.
8.0
Default and Termination
8.1
Without prejudice to any of Our
other remedies, if any amount payable by You to Us is overdue or You are
otherwise in breach of the Contract
(a)
We may refuse to provide You
with Goods or Services;
(b)
any Charges or moneys payable
by You to Us whether due for payment or not shall become immediately due and
payable;
(c)
We may refer your debt to debt collection
agents; and
(d)
We may cancel this Contract.
8.2
If You fail to pay an amount
owing to Us on the due date We may charge You interest, on a daily basis, at
the rate of 2% per calendar month.
Interest may be charged by Us on the amount owing (including any interest
payable under this clause) from the due date until the date it is paid in full.
8.3
Any costs incurred by Us in
attempting to recover the Charges, including legal costs on a solicitor client
basis and debt recovery costs, shall be payable by You on demand.
8.4
You will be deemed to have
breached this Contract if You become insolvent, commit an act of bankruptcy,
have a receiver appointed over all or any part of Your assets, make or are
likely to make an arrangement with Your creditors, have a liquidator
(provisional or otherwise) appointed or are placed under statutory or official
management.
8.5
Any termination or expiry of
the Contract will be without prejudice to Our rights and remedies against the
You which have accrued up until the date of termination or expiration.
9.0
General Indemnity
9.1
You will indemnify Us against
all costs (including costs of and incidental to Us enforcing our legal rights
against You on a solicitor and client basis), claims and expenses suffered or
incurred by Us which are directly or indirectly caused by any negligence on
Your part and/or any failure by You to comply with the Contract or any other
applicable terms and conditions.
10.0
General
10.1
You will not be entitled to
set-off against, or deduct from, any moneys owed by You to Us any sums owed or
claimed to be owed by Us to You.
10.2
This Contract is governed by
the laws of New Zealand and is subject to the jurisdiction of the courts of New
Zealand.
10.3
If any part of this Contract is
held by any court or administrative body of competent jurisdiction to be
illegal, void or unenforceable, such determination will not impair the
enforceability of the remaining parts of this Agreement which will remain in
full force.
10.4
We may assign or sub-contract
our rights and obligations under these Conditions upon notice in writing to
You. You may not assign Your rights or
obligations.
10.5
Any notice required to be given
by Us shall be sufficiently given by posting an ordinary prepaid letter, by
personal delivery, facsimile or by email to the last known addresses We have on
Our records. You are required to notify us of any change of address.
10.6
If We delay in the exercise of,
or fail to exercise any, right or remedy available to Us, this will not
prejudice Our rights in exercising that or any other right or remedy in future
and will not constitute a waiver of such right or remedy.
10.7
Neither party will be liable
for any default caused by events reasonably outside of either parties control,
including but not limited to fire, explosion, earthquake, storm, flood, failure
or breakdown of machinery or plant, unavailability or shortage of power or
labour, riots, strikes, lock outs, civil commotion or labour disturbances,
theft or burglary.
10.8
No variation or modification of
the Contract by You will be binding on Us unless agreed upon by Us in writing.
We may vary the Contract at any time by notifying you in writing.
10.9
We will be under no liability
whatsoever to You for any indirect loss or expense (including loss of profit)
suffered by You arising out of a breach by Us of the Contract.
10.10
In the event of any breach of
the Contract by Us, Your remedies shall be limited at Our discretion and option
to damages or to the repair or replacement of the damaged or defective Goods
and Services provided. Under no circumstances shall Our liability exceed the
price of the goods.
10.11
We will not be liable to You
for failure to provide the Goods or Services to You by any specified dates.
11.0
Definitions
Conditions means these Terms and Conditions of Trade.
Charges means any price,
fees, costs or charges payable by You to Us for the provision of Goods or Services,
or in relation to such provision, as agreed to under this Contract.
Contract means the Conditions and the Proposal together, and represents the
entire Contract on which the Services will be performed by us, subject to any
variations agreed upon in writing.
Goods and Services means all goods
or services supplied or carried out by Us in the course of performing the
Contract, and where the context permits the terms "Goods” and "Services” will
be interchangeable.
Proposal means the document(s) provided by Us which sets out the basis on which
We are prepared to carry out the provision of goods and services.
We, Our and Us means S &
J Appliance Servicing Limited.
You and Your means the person(s) described in
the Proposal buying the Services (and if more than one, jointly and severally),
and their respective agents, principals or employees as the case may be.
