1) Quotations

1.1) Each quotation by the Supplier ("Quotation") is submitted on the following basis, unless otherwise specified in writing in the Quotation:  

​

a) Quotation is an offer by the Supplier to the customer named in the Quotation to supply and install the specified products ("the Products") at the specified price on these terms and conditions and on any additional or varied terms and conditions agreed in writing by the General Manager or Sales Manager of the Supplier, as read with the provisions of the Quotation (collectively, "the Sale Terms") and on no other terms except those implied by law;  

 

b) the offer must be accepted by the placing of an order in the form specified by the Supplier from time to time. Despite the customer's acceptance of the Quotation, the Supplier may choose not to be bound by the Quotation if, in the Supplier's sole discretion, it determines that it is no longer feasible to supply or install the Products in accordance with the Quotation for any reason;  

 

c) the Quotation is valid for the period specified, and if no period is specified it expires at midnight on the 30 day after the date of the Quotation;  

 

d) the Quotation may be withdrawn or altered at the Supplier's discretion at any time prior to acceptance;  

 

e) prices quoted are inclusive of delivery and installation costs but exclusive of service provider connection or usage charges or GST, value added tax, customs duty or other applicable tax, levy or duty.  

 

2) Price  

2.1) If at any time after the Supplier accepts the order there is an increase in the cost to the Supplier in New Zealand dollars of materials, equipment, components labour, transport, or an increase in any tax, duty or levy which affects the cost of supply or installation of the Products, the Supplier may increase the price by the amount which is reasonably necessary to compensate it for the increased cost.

 

3) Payment  

3.1) The contract price is payable in full, in cleared funds, without deduction or set-off, on installation and commissioning of the Products.  

 

3.2) Except where the Sale Terms expressly provide otherwise, a contract or arrangement between the customer and a financier to finance the acquisition of the Products shall not:  

 

a) alter or affect the nature of the contract between the Supplier and the customer as one of sale and purchase; or  

 

b) modify or add to the Sale Terms; or

 

c) create any liability between the Supplier and the financier;  

 

d) affect, discharge or in any way limit or subordinate the Supplier's security interest in the Products.  

 

4) Default  

4.1) Any payment that is in arrears shall bear interest at the rate of 2% per month, which shall continue to accrue after judgment.  

 

4.2) The Supplier shall have the right to apply all payments received by it from the customer towards any indebtedness of the customer as the Supplier thinks fit. The Supplier shall not be bound by any qualifications or conditions attached to such payments by the customer.  

 

4.3) If the Supplier in its sole discretion deems the customer's credit to be unsatisfactory, it may require security for payment and may withhold delivery or cease installation until such security is provided; alternatively, it may cancel the contract and in that event all amounts then owing by the customer shall become immediately due and payable in full.  

 

5) Property  

5.1) Full property (being legal and equitable title) in the Products shall remain with the Supplier until the Supplier has received full payment of the price for the Products and all other amounts owing to the customer from any cause have been paid in full.  

 

6) Security Interest  

6.1) The customer grants to the Supplier a security interest in the Products as security for all amounts owing by the customer to the Supplier in respect of the Products or from any other cause of present or future indebtedness whatsoever.  

 

6.2) The customer agrees to provide the Supplier with such information as it may need to enable it to register such security interest in terms of the Personal Property Securities Act 1999 ("PPSA");  

 

6.3) Nothing in sections 114(1) (a), 133 and 134 of the PPSA shall apply to the Supplier's security interest in the Products.  

 

6.4) The customer waives its rights pursuant to sections 121, 125, 129, 131 and 132 of the PPSA and its right to receive a copy of any verification statement relating to the Supplier's security interest in the Products.  

 

7) Authorised Entry/Repossession  

7.1) For as long as any amount due and payable by the customer to the Supplier remains unpaid, the customer irrevocably authorises the Supplier and its servants and agents to enter into any premises controlled by the customer, to search for the Products and to remove them (if necessary, after separating them from any item into which they have been incorporated).  

 

8) Access To The Site  

8.1) The customer shall be responsible for providing the Supplier with access to the site where the Products are to be installed, to enable the Supplier to carry out its obligations in terms of its contract with the customer. Where appropriate, access to the Site shall include:  

 

a) access to and parking at the site for purpose of delivery of materials;  

 

b) access to all buildings and structures in which the products are to be installed, in a state and condition ready for installation;  

 

c) access to a source of electrical power;

 

d) secure on-site storage facilities for the Supplier's materials and equipment.  

 

9) Loss Or Damage

9.1) The risk in the Products shall pass on installation.  

 

9.2) Except where such loss or damage occurs during the process of installation or commissioning, the Supplier shall not be liable in contract, tort or otherwise for any loss of or damage to the Products or any component materials suffered thereafter, even if the loss or damage is due to conduct by the Supplier which was negligent in any degree.  

 

10) Entire Agreement  

10.1) The Sale Terms constitute the entire agreement between the customer and the Supplier. No representation, warranty, term or condition shall be binding on the Supplier unless it is included in the Sale Terms.  

 

11) Consumer Guarantees Act  

11.1) If the Consumer Guarantees Act 1993 applies to the supply or installation of the Products, it is excluded to the maximum extent allowed under section 43(2) of that Act.  

 

12) Sale By Description  

12.1) If there is any conflict between the description of the Products in a Quotation and any samples shown to the customer, the description contained in the Quotation shall apply, and the Supplier will have fulfilled the contract if the Products match the description.  

 

13) No Warranties For Intended Use Of Equipment  

13.1) The Supplier gives no warranties as to the quality of the Products or as to their fitness for any purpose, even if that purpose was made known to the Supplier.  

 

13.2) In particular (but without limiting the effect of clause 13.1), the Supplier does not warrant that the Products will provide an uninterrupted or fault free service.  

 

13.3) The conditions implied by sections 16 and 17 of the Sale of Goods Act 1908 or by trade usage are excluded from the contract between the customer and the Supplier.  

 

14) Delay  

14.1) If any time for delivery or installation of the Products is stated in the Sale Terms, such time shall be approximate and shall not be of the essence of the contract.  

 

14.2) The Supplier shall not be liable for any loss or damages suffered by the customer due to a failure by the Supplier to perform its obligations, where such failure is due to circumstances which are beyond the Supplier's reasonable control including, without being limited to, industrial action, shortage of materials and delays or failures by suppliers.  

 

15) Faulty Materials Or Workmanship  

15.1) For 12 months after the Products have been commissioned, the Supplier shall repair or remedy any defects in the Products directly caused by any faulty materials supplied or defective work done by the Supplier, provided that the Supplier shall not be liable to remedy any defect:  

 

a) created by the conduct of the customer or a third party; or 
 

b) to which the conduct of the customer or of a third party has contributed; or 
 

c) caused or contributed to by lightning strike or any other act of God or natural phenomenon.  

 

16) Limitation Of Liability  

16.1) The Supplier shall not be liable in contract, tort or otherwise for any consequential, indirect or pure economic loss suffered by the customer as a result of any defect in the Products or any failure by the Supplier to perform its obligations to the customer, even if such loss was, or should have been, within the Supplier's contemplation.  

 

16.2) Any claim which the customer may have against the Supplier, whether in contract, tort or otherwise as a result of any defect in the Products:  

 

a) shall expire twelve months after the Commissioning Date unless the customer notifies the Supplier of the claim in writing before the expiry of that period;  

 

b) shall be limited, at the Supplier's option, to the repair or replacement of defective Products (if applicable) or the refund of a maximum amount equal to amounts actually paid by the customer to the Supplier in respect of the supply and installation of the Products (payable against return of the Products).

 

17) Intellectual Property Rights  

17.1) The Customer shall enjoy a non-exclusive, non-transferable license to use the software forming part of or installed with the Products ("the Operating Software") for the sole purpose of operating the system comprised of the Products.  

 

17.2) Subject to the license mentioned in clause 17.1, the Supplier retains all rights in the Operating Software.  

 

18) Information  

18.1) The customer authorises the Supplier: to carry out credit checks in respect of the customer and to collect information concerning the customer in this regard:  

 

a) to use any personal information about the customer for purposes other than those for which it has been collected;  

 

b) to disclose to any third person or organisation personal information held by the Supplier about the customer.  

 

c) it is unnecessary for the Supplier to inform the customer:  

• of the fact that the Supplier has collected information about it; or

• of the purpose for which the information has been collected; or

• of the customer's rights of access to and correction of any personal information held by the Supplier. 

 

19) Costs  

19.1) The customer shall pay on demand all legal costs incurred by the Supplier in enforcing its rights under the Sale Terms on a full indemnity basis.  

 

20) No Waiver  

20.1) No failure by the Supplier to exercise a right under the Sale Terms shall be regarded as a waiver of that right.  

 

21) Governing Law 

21.1) The contract between the customer and the Supplier shall be governed by the laws of New Zealand.