In these Terms:
Estimate means a document provided to You by Us setting out an approximation of Goods and/or Services to be provided to you and the approximate Fee.
Delivery has the meaning given to it in clause 6.1.
Fee means all fees, costs, expenses, charges howsoever arising payable for the Goods and/or Services and may be varied from time to time, and includes all reasonable costs and/or expenses (net of GST) that We incur while performing the Services and providing the Goods. Fees has a corresponding meaning.
Goods mean all goods and materials provided by Us to You as a result of Your Request for Supply (‘Services’ and ‘Goods’ may be used interchangeably where context requires).
Premises means any location where We conduct Our business, but generally 52d Leach Street, New Plymouth.
Quote means a document marked ‘Quote’ provided to You by Us detailing Goods and/or Services to be provided to You and the intended Fee.
Request for Supply: either:
(a) Your request (whether oral or written) for a supply of Goods and/or Services; or
(b) Your confirmation (whether oral or written) that You will accept a supply of Goods and/or Services; or
(c) Your acceptance (whether oral or written) of an Estimate or Quote from Us;
each detailing the Goods and/or Services required.
Services means electrical services and services related to and incidental to electrical services.
Site means the premises where the Services are to be carried out.
Terms means these Terms and Conditions for sale and supply of Goods and/or Services.
Us and We and Our means Taranaki Electrical Services Limited with company number 3948818 and including Our successors and assigns or any person acting on behalf of and with Our authority.
Working Day means a day of the week other than a Saturday or Sunday, a public holiday, or a day from 25 December until 2 January in the following year.
You and Your means any person who submits to Us a Request for Supply, including Your employees, agents, successors, administrators, assigns, and/or other person acting on Your behalf, and if there is more than one person, each person jointly and severally.
2.1 These Terms shall apply to all contracts and/or arrangements for the supply of Goods and/or Services to You and can only be amended with Our express written consent.
2.2 You are deemed to have accepted these Terms and will be immediately bound by these Terms at the time We receive a Request for Supply.
2.3 These Terms shall prevail to the extent of any inconsistency with any other document or agreement between the parties (unless expressly agreed otherwise by Us in writing).
2.4 You acknowledge that these Terms along with any relevant Quote or Estimate and any valid variation in accordance with clause
2.5 constitute the entire agreement between the parties in relation to the provision of Goods and/or Services by Us. In particular, You acknowledge that all prior understandings (whether written or oral), including any terms and conditions attached to Your Request for Supply do not apply and are of no further force or effect.
2.5 Any variation to these Terms must be in writing and the proposed change must be acknowledged and agreed to in writing by Us before coming into force. We are entitled to reject any such variations at Our sole discretion.
2.6 In the event that We are required to provide Services urgently and where Our staff may be required to work outside normal business hours (including but not limited to working, through lunch breaks, weekends and/or public holidays) then We reserve the right to charge You additional Fees, unless otherwise agreed between Us and You.
2.7 Where the Site is outside a 2km radius from Our Premises then the Fee will be subject to a levy for travel based on mileage and/or a set fee at Our discretion.
3. CONFIRMATION OF ORDER
3.1 We will confirm receipt of any Request for Supply and provide notification to You of Our ability to fulfil (in full or in part) the same (Accepted/ Acceptance).
3.2 Any agreed terms contained within Our Acceptance shall constitute a valid amendment to the relevant Request for Supply.
3.3 In the event that We do not confirm receipt of any Request for Supply and provide notification to You of Our ability to fulfil the same,
Our supply of the Goods and/or Services and Your acceptance of the Goods and/or Services shall be deemed Accepted.
4. FEES AND PAYMENT
4.1 You agree to pay Us the Fee for Goods and/or Services that We provide under a Request for Supply submitted to Us and invoiced by Us from time to time, usually monthly.
4.2 You must pay Us by bank cheque, electronically, or by any other method as agreed to between You and Us, and prior to the payment due date stipulated in the relevant invoice, or if no payment due date is stipulated, prior to the 20th day of the calendar month following the date of the invoice.
4.3 We reserve the right to require that payment of Fees be made in full in advance for any Goods and/or Services to be provided.
4.4 At Our sole discretion and subject to clause 4.6, the Fee shall be either:
4.4.1 the price of the Goods as at the date of Delivery according to Our most current price list and the reasonable cost of the Services provided to You; or
4.4.2 our quoted Fee which will be valid for the period stated in any quotation provided or otherwise for a period of 30 days.
4.5 The Fee, unless otherwise stated, is exclusive of GST, other taxes, import duties, levies or tariffs, freight, delivery and insurance charges which, if applicable, will be extra charges.
4.6 We reserve the ability to change the Fee:
4.6.1 if a variation to a Request for Supply is requested or required;
4.6.2 where additional costs are incurred by Us due to unexpected delays;
4.6.3 where additional Goods and/or Services are required due to the discovery of hidden or unidentifiable difficulties (including, but not limited to, hard rock barriers below the surface, iron reinforcing rods in concrete, or hidden pipes and wiring in walls etc.) which are only discovered after commencement of the Services; and/ or
4.6.4 in the event of increases to Us in the cost of labour or Goods which are beyond Our control.
5. OVERDUE ACCOUNTS
5.1 Without prejudice to our other rights and remedies under these Terms or at law, if You fail to pay Our Fees by the due date, We may (at Our election) choose to undertake one or more of the following:
5.1.1 take action to recover all Fees that You owe to Us;
5.1.2 withhold or decline to deliver Goods and/or Service to You until all Fees owing to Us are paid in full;
5.1.3 charge interest on all amounts owing to Us 5% above the current ANZ commercial unsecured overdraft rate for the period for which the payment(s) remain owing, in respect of which interest shall accrue daily;
5.1.4 cancel any rebates or discounts (whether or not previously credited); and
5.1.5 recover from You any costs incurred by Us associated with recovering amounts owed by You including (but not limited to) all debt collection fees and commissions, legal fees and court filing costs.
5.2 We reserve the right to apply any payments received from You in reduction of Fees due and payable, interest or any principal debt We have incurred in connection with Your overdue account in such order of priority as We in Our absolute discretion deem appropriate.
6. DELIVERY, TITLE AND RISK
6.1 Delivery of the Goods shall occur at the earlier of:
6.1.1 the point in time that You take possession of the Goods; or
6.1.2 the point in time that Goods leave Our Premises to be transported to You (whether directly or indirectly) (each, Delivery).
6.2 All costs associated with freight shall be for Your account, including where freight is arranged by Us, in which case such costs shall be extra charges pursuant to clause 4.6.
6.3 Where You are responsible for delivery arrangements and Delivery does not occur within three (3) Working Days of the date mutually agreed by the parties under clause 6.1 above, We may at Our sole option cancel the Request for Supply and clause 15.3 will apply, or increase the Fee to cover the cost of the delay in Our staff perform the Services, install the Goods, or otherwise carry out any work.
6.4 All risk in the Goods shall pass to You upon Delivery.
6.5 Title in the Goods shall pass to You at the point in time when:
6.5.1 We have received the full amount due and payable under the relevant invoice; and
6.5.2 You have fulfilled all other obligations to Us under the Terms (together, Completion).
6.6 Until Completion is achieved:
6.6.1 you will be a bailee in respect of the Goods and must return the Goods to Us immediately upon Our request;
6.6.2 you will not sell, dispose, or otherwise part with possession of the Goods other than in the ordinary course of business and for market value. If You sell, dispose or part with possession of the Goods, You shall hold the proceeds on trust for Our benefit, and must pay or deliver the proceeds to Us on demand;
6.6.3 we will be entitled to all insurance proceeds in the event the Goods are lost, damaged or destroyed, in which case these Terms shall be sufficient evidence of Our right to receive such insurance proceeds without further enquiry;
6.6.4 we may commence proceedings to recover Fees notwithstanding that title in the Goods has not passed to You.
6.7 If You specifically request Us to leave Goods outside Our Premises for collection or to deliver the Goods to an unattended location then such Goods shall always be left at Your sole risk and it shall be Your responsibility to ensure the Goods are insured adequately or at all. In the event that such Goods are lost, damaged or destroyed then replacement of the Goods shall be at Your expense.
6.8 You warrant that any structures to which the Goods are to be affixed are able to withstand the installation of the Goods and that any electrical connections are of suitable capacity to handle the Goods once installed. If, for any reason (including, but not limited to, the structure not being watertight, the discovery of asbestos, defective or unsafe wiring, or dangerous access etc.) We reasonably form the opinion that Your property is not safe for the installation of Goods to proceed then We shall be entitled to delay installation of the Goods until We are satisfied that it is safe for the installation to proceed. At Our full discretion We may agree with You to bring the property up to a standard suitable for installation to proceed but all such Services provided and any additional Goods supplied shall be treated as a variation and an additional charge in accordance with clause 4.6.
6.9 You acknowledge that in the event asbestos or any other toxic substances are discovered at the Site, it is Your responsibility to ensure the safe removal of the same. You further agree to indemnify Us against any costs incurred by Us as a consequence of such discovery. Under no circumstances will We handle removal of asbestos product.
6.10 All Services will be tested to ensure that it is electrically safe and is in accordance with the wiring rules and other standards applying to the electrical installation under the Electrical Safety Regulations. All cabling Services will comply with the Australian and New Zealand Wiring standards.
6.11 You warrant that all electrical work and facilities on the Site comply with all statutes, regulations and bylaws of government, local and other public authorities that may be applicable. If You have performed or will perform any electrical work on the Site yourself You warrant that You are lawfully able to do so and that all such work complies with all statutes, regulations and bylaws of government, local and other public authorities that may be applicable. If any work or facility on the Site does not so comply, You agree You are responsible for the cost of correcting any work or facility so that it does comply. You further agree that We are not liable in any way for any such work or facility that does not comply and indemnify Us for any cost resulting from such non-compliance, including but not limited to, any remediation or correction work undertaken by Us in respect of the non-compliance.
6.12 Where You have supplied materials for Us to complete the Services, You acknowledge and accept responsibility for the suitability of purpose, quality and any faults inherent in the materials. We are not responsible for any defects in the materials, any loss or damage to the materials (or any part thereof), howsoever arising from the use of materials supplied by You.
6.13 We accept no responsibility for any damage or performance related problems with any materials where they have not been used and/or maintained in accordance with Our and/or the manufacturers’ recommendations.
6.14 Where We require that materials or tools or anything else required for the Services be stored at the Site, You shall supply Us a safe area for storage and shall take all reasonable efforts to protect all items from destruction, theft or damage. In the event that any of the stored items are destroyed, stolen or damaged, then the cost of repair or replacement shall be Your responsibility.
6.15 You warrant that no other tradesmen will interfere with any Goods and/or Services supplied under this contract. We shall not be liable for any costs, damages or loss however arising from Your failure to comply with this clause.
7. PROVISION OF THE SERVICES
7.1 Subject to clause 7.2 it is Our responsibility to ensure that the Services start as soon as it is reasonably possible.
7.2 The Services commencement date will be put back and the completion date extended by whatever time is reasonable in the event that We claim an extension of time (by giving You written notice) where completion is delayed by an event beyond Our control, including but not limited to any failure by You to:
7.2.1 make a selection; or
7.2.2 have the Site ready for the Goods and/or Services; or
7.2.3 notify Us that the Site is ready for the Goods and/or Services; and You will not be entitled to any abatement of Fees, reduced rate, or similar because of such delay.
7.3 Any time or date given by Us to You is an estimate only. Subject to clause 6.3, You must still accept delivery of the Goods even if late and We will not be liable for any loss or damage incurred by You as a result of the delivery being late.
8. PERSONAL PROPERTY SECURITIES ACT 1999 (PPSA)
8.1 Upon accepting these Terms under clause 2 You acknowledge and agree that:
8.1.1 the Terms constitute a security agreement for the purposes of the PPSA; and
8.1.2 a security interest is taken in all Goods previously supplied by Us to You (if any) and all Goods that will be supplied in the future by Us to You.
8.2 You undertake to:
8.2.1 indemnify, and upon demand reimburse, Us for all expenses incurred in registering a financing statement or financing change statement on the PPSR or releasing any Goods charged thereby; and
8.2.2 not register a financing change statement or a change demand without Our prior written consent.
8.3 The parties agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these Terms.
8.4 You agree to waive Your rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA.
8.5 You agree to waive Your right to receive a verification statement in accordance with section 148 of the PPSA.
8.6 You agree to unconditionally ratify any actions taken by Us under clause 8.1 to 8.6.
9. SECURITY AND CHARGE
9.1 In consideration of Us agreeing to supply the Goods and/or Services, You charge all of Your rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by You either now or in the future, to secure Your performance of Your obligations under these terms and conditions (including, but not limited to, the payment of any money).
9.2 You indemnify Us from and against all of Our costs and disbursements including legal costs incurred in exercising Our rights under this clause.
9.3 You irrevocably appoint Us and each of Our directors as Your true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 9.
10. CHANGE IN CONTROL
In the event that there is a proposed change of control in Your company and/or any other change in Your details (including but not limited to, changes in Your name, address, contact phone or fax number/s, or business practice), You must provide Us no less than 15 days’ prior written notice. You shall be liable for any loss incurred by Us as a result of Your failure to comply with this clause.
11. ACCURACY OF CLIENTS PLANS & MEASUREMENTS FOR ORDERS
11.1 We will be entitled to rely on the accuracy of any plans, specifications and other information provided by You. You acknowledge and agree that in the event that any information provided by You is inaccurate, We accept no responsibility for any loss, damages, or costs however resulting from these inaccurate plans, specifications or other information.
11.2 In the event You provide information relating to measurements and quantities of Goods required it is Your responsibility to verify the accuracy of the measurements and quantities before You place an order. We accept no responsibility for any loss, damages, or costs however resulting from Your failure to comply with this clause.
You must ensure that We have clear and free access to the Site at all times to enable Us to deliver the Goods and/or provide Our Services. We are not liable for any loss or damage to the Site unless any loss or damage is due to Our negligence.
13. UNDERGROUND LOCATIONS
13.1 Unless it is agreed between You and Us that detection services will be engaged to provide the location of underground services, prior to the commencement of any Services You must advise Us of the precise location of all underground services on the Site and clearly mark the same. The underground mains and services You must identify include, but are not limited to, electrical services, gas services, water services, and any other services that may be on Site.
13.2 You agree to indemnify Us in respect of any liability claims, loss, damage, costs and fines as a result of damage to services not precisely located and notified as per clause 13.1.
14. LIMITATION OF LIABILITY
14.1 To the extent permitted by law, in no event shall We be liable to You or any third party under, or in connection with these Terms and/or the Goods and/or Services provided (whether in contract, tort or otherwise) for any consequential loss or damage, indirect loss or damage, or any economic loss, including any loss of profits.
14.2 You acknowledge that We are not liable for any error, non-performance or breach of any of Our obligations to You or any third party under these Terms due to a direct or indirect cause outside of Our control, or on the basis of erroneous or faulty information and/or samples provided to Us by You.
14.3 To the extent that Our liability is not otherwise limited or excluded, and to the fullest extent permitted by law, Our aggregate liability to You whether in tort, contract or otherwise for any loss, damage or injury in relation to the Goods and/or Services shall be limited to any Fees paid by You for the Services in respect of which the claims are made.
14.4 To the fullest extent permitted by law:
14.4.1 all warranties, conditions or other terms implied by law are excluded;
14.4.2 you agree not to make, and waive any right to make, any claim against Us under section 9, 12A and 13 of the Fair Trading Act 1986 and You agree that this is fair and reasonable; and
14.4.3 you acknowledge that if You acquire Our Services for a business purpose, the provisions of the Consumer Guarantees Act 1993 shall not apply.
15. VARIATION AND CANCELLATION
15.1 We may cancel a Request for Supply at any time before the Goods and/or Services are provided to You by giving written notice. On giving such notice We agree to repay to You any sums paid in respect of the Fees for that specific Request for Supply. We shall not be liable for any loss or damage whatsoever arising from such cancellation.
15.2 Once We have Accepted an order, You may not vary or cancel a Request for Supply in any way without Our prior written approval to the variation or cancellation. Such written approval will not be effective until the date on which We consent to the variation or cancellation in writing.
15.3 If You vary or cancel a Request for Supply, You must pay Our Fees and/or Our reasonable expenses, which may include (without limitation):
15.3.1 a portion of Fees reflecting the amount of work completed up to the date on which the termination (or variation) takes effect;
15.3.2 any direct costs We have incurred or committed to; and/or
15.3.3 costs resulting from termination (or variation) of any agreements We have with suppliers and subcontractors.
15.4 Our entitlement to payment under clause 15.3 is in addition to, and without prejudice to any other rights that We may have.
16.1 You agree that:
16.1.1 a Quote will not be valid unless it is in writing;
16.1.2 a Quote is only capable of being accepted by the person to whom the Quote is addressed;
16.1.3 we will not be bound by a Quote if You do not Request for Supply within 30 days of the date of the Quote;
16.1.4 we may, prior to receipt of a Request for Supply, amend the related Quote and notify You accordingly without ramification; and
16.1.5 we will not be bound by a Quote if We form the view that the Goods and/or Services priced in the Quote are to form part of a larger transaction or series of transactions with You.
16.2 Fees detailed in a Quote:
16.2.1 do not include any sales tax, GST or other domestic or foreign duties, charges or taxes; and
16.2.2 are for the supply of all Goods and/or Services specified and may be revised if there is any change in the nature or scope of Goods and/or Services to be provided to You; and
16.2.3 are subject to clause 4.6.
17.1 You agree that:
17.1.1 an Estimate is not a Quote and cannot be treated as such and We are not bound to charge only the amount set out in the Estimate;
17.1.2 an Estimate is only for the information of the person to whom it is addressed; and
17.1.3 if You make a Request for Supply after receiving an Estimate, the Fees charged for any Goods and/or Services provided will be charged in accordance with clauses 4.4.1 and 4.6, bearing in mind the Estimate provided.
18.1 If You default on any of Your obligations or breach any part of the Terms, the full balance of all unpaid monies will be immediately due and payable by You, and we may, without limitation, at Our sole option cancel the Request for Supply and the Terms, retain all monies paid, and/or cease further deliveries without prejudice to any other rights and without being liable in any way to any party.
18.2 You agree not to commence or continue, or permit to be commenced or continued, any suit or action against Us while You are in default under any part of the Terms.
19. INTELLECTUAL PROPERTY
You agree that all intellectual property rights created during the provision of the Goods and/or Services will vest in Us immediately upon creation and that all intellectual property rights (whether registered or not) held by Us prior to the provision of the Goods and/or Services shall remain our property.
20. COMPLIANCE WITH LAWS AND REGULATIONS
20.1 Both parties must comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities that may be applicable to the Services.
20.2 You must obtain (at Your expense) all licenses, approvals, applications and permits that may be required for the Services, that are not included in any documents provided by Us.
21. PRIVACY ACT
21.1 You authorise Us or Our agent to:
21.1.1 access, collect, retain and use any information about You;
(a) (including any overdue fines balance information held by the Ministry of Justice) for the purpose of assessing Your creditworthiness; or
(b) for the purposes of marketing products and services to You, retaining records of Goods and/or Services Provided by Us and who they were provided to, and being able to contact You in the future about the Goods and/or Services provided.
21.1.2 disclose information about You, whether collected by Us from You directly or obtained by Us from any other source, to any other credit provider or any credit reporting agency for the purposes of providing or obtaining a credit reference, debt collection or notifying a default by You.
21.2 Where You are an individual the authorities under clause 21.1 are authorities or consents for the purposes of the Privacy Act.
22. CONSTRUCTION CONTRACTS ACT 2002
22.1 You hereby expressly acknowledge that:
22.1.1 We have the right to suspend Services within five (5) Working Days of written notice of Our intent to do so if a payment claim is served on You, and:
(a) the payment is not paid in full by the due date for payment and no payment schedule has been given by You; or
(b) a scheduled amount stated in a payment schedule issued by You in relation to the payment claim is not paid in full by the due date for its payment; or
(c) you have not complied with an adjudicator’s notice that You must pay an amount to Us by a particular date; and
(d) we have given written notice to You of Our intention to suspend the carrying out of construction work under the construction contract.
22.1.2 If we suspend work, We:
(a) are not in breach of contract; and
(b) are not liable for any loss or damage whatsoever suffered, or alleged to be suffered, by You or by any person claiming through You; and
(c) are entitled to an extension of time to complete the contract; and
(d) keep Our rights under the contract/Terms including the right to terminate the contract/Terms; and may at any time lift the suspension, even if the amount has not been paid or an adjudicator’s determination has not been complied with.
22.1.3 If We exercise the right to suspend Services, the exercise of that right does not:
(a) affect any rights that would otherwise have been available to Us under the Contract and Commercial Law Act 2017; or
(b) enable You to exercise any rights that may otherwise have been available to You under that Act as a direct consequence of Us suspending Services under this provision.
23. GOVERNING LAW AND JURISDICTION
You agree that the Terms and any claim or dispute between Us will be governed by the laws of New Zealand, and You agree to submit to the non-exclusive jurisdiction of the courts of New Zealand.
An election by Us not to exercise any rights We may have under these Terms will not constitute a waiver of any of Our rights.
25. FORCE MAJEURE
25.1 We will not be in default or in breach of the Terms as a result of force majeure event, including, without limitation, fire, flood, earthquake, strike, labour trouble or other industrial disturbances, war, embargo, riot, or governmental or administrative decision including but not limited to any epidemic or pandemic such as COVID-19.
25.2 If a force majeure event occurs We may, at Our sole option, either delay the performance and completion of the Services and/or the delivery of the Goods and clause 7.2 shall apply mutatis mutandis, or cancel the Request for Supply and clause 15.3 will apply mutatis mutandis.
You will be in default of these Terms if You commit an act of insolvency, including receivership, liquidation (voluntary, court appointed or interim), or voluntary administration, or enter into a creditor compromise.
27. SEVERABILITY AND SURVIVAL
27.1 If You enter into the Terms as more than one individual and/or the Goods and/or Services are provided to more than one individual, the duties, obligations and liabilities of the each individual under the Terms will be joint and several.
27.2 Any part of these Terms that is unenforceable or partly unenforceable will be, where possible, severed to the extent necessary to make the Terms enforceable, unless this would materially change the intended effect of the Terms.
27.3 This following clauses will survive termination or expiry of the Terms or a Request for Supply: 4, 5, 6.8, 6.9, 6.11, 6.12, 6.13, 8, 9, 13, 14, 18, 19, 21, 22, 23, 24, and 27.
28. ASSIGNMENT AND NOVATION
You may not assign Your rights or novate Your obligations under the Terms without Our prior written consent.
Upon accepting the quoted work & engaging Taranaki Electrical Services Limited, I hereby agree to the Terms of Trade.