Terms of trade
TERMS OF TRADE FOR PERSONAL CUSTOMERS ONLY (BEING “CONSUMERS” AS THAT TERM IS DEFINED UNDER THE CONSUMER GUARANTEES ACT 1993)
1 Terms of Contract
By requesting ElectraServe Limited (the Company) to provide any goods and services to you (the Customer), you acknowledge and agree (or you are deemed to acknowledge and agree) to these terms of trade (the Terms).
Prices quoted are based on information available as to the circumstances prevailing at the time of quotation and may be adjusted in accordance with actual circumstances becoming apparent in the fulfilment of the order. Quotations as to the time required for any work shall be based on the circumstances known to the Company at the time are estimates only. The Customer shall pay in addition to any quoted price, all increases in costs in respect of materials, specification changes, transport, tax, rates of exchange or otherwise after the date of the quotation. Prices are subject to change without notice unless goods are supplied pursuant to a current quotation. Quotations are valid for a period of 30 days after the date of issue.
At the Company’s sole discretion, a deposit, payment for goods and/or full payment of the quoted price in advance may be required. Receipt by the Company of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured. Time of payment is of the essence and will be stated on the invoice or any other forms. Should the Customer fail to pay when due, the Company may, in addition to its other remedies, cancel or suspend the contract as to any remaining deliveries and claim for any loss. If the Customer defaults on its payment obligations the Customer will pay interest at 2.5%per month on any amount unpaid and all the Company’s legal costs of recovery of the debt and such interest shall accrue before and after judgment. All costs associated with the collection of overdue accounts are payable by the Customer.
4 Title and Risk
(a) Title in the goods shall not pass until:
(i) payment is made in full by the Customer; and
(ii) the Customer has met all other obligations due by the Customer to the Company in respect of all contracts between the Company and the Customer.
(b) The Customer authorises the Company and its agents to enter any premises or property and uplift the goods in the event of a default in payment.
(c) The Customer will hold the goods or any of them on trust for the Company as bailee of the Company until title in the goods has passed to the Customer.
(d) Risk in the goods shall pass to the Customer on delivery to the Customer’s premises.
5 Indirect Loss
Except as set forth in these Terms the Company shall be under no liability whatsoever to the Customer or any other party for any consequential or indirect loss, damages or expense (including, without limitation, loss of profit, loss of earnings and loss of production) suffered by the Customer arising out of a breach by the Company of these Terms. Maximum Liability If, notwithstanding the provisions of these Terms, the
Company is found to be liable to the Customer or any other party, then its liability for any single event or series of events is limited to the contract price of the relevant goods and services provided.
6 Governing Law
These Terms and all contracts of supply entered into between the Customer and the Company shall be governed by the law of New Zealand whose Courts shall have exclusive jurisdiction to hear and determine any dispute.
7 Damage during Installation
Where the company undertakes installation or assembly then, unless otherwise agreed in writing by the Company, the Customer shall be responsible for all loss, damage or destruction occasioned by fire, earthquake, water, effect of weather, pilfering, and any other causes whatsoever, whether the goods be wholly or only partly installed or be lying not assembled wherever the same be and despite anything contained in these conditions or the quotation contained with regard to the terms of payment.
8 Second Hand Goods
Where any second-hand goods are supplied to the Customer, the Customer acknowledges that no warranty is given by the Company, in respect of the second-hand goods, as to quality or suitability for any purpose and any implied warranties, in so far as may lawfully be possible, are expressly excluded. The Company shall not be responsible for any loss or damage to the second-hand goods, or caused by the second-hand goods, or any part thereof whatsoever arising. The Customer further acknowledges that he has had full opportunity to inspect the second-hand goods and that he accepts the same with all faults.
Any warranties in relation to any goods and services implied by the Consumer Guarantees Act 1993, the Fair Trading Act 1986 and other statute shall be excluded if able to be excluded and if not able to be excluded, only apply to the minimum extent required by law.
(a) In compliance with the Privacy Act 1993, the Customer authorises the Company to obtain information about the Customer from the Customer or any third party for the purposes of making credit enquiries, maintaining the Customer’ account, providing the requested goods and services and debt collection and enforcement. The Customer further authorises the Company to furnish to any third party, details of this application and any subsequent dealings that the Customer may have with the Company as a result of this application being actioned by the Company.
(b) The Customer can access any personal information held by the Company by making a request to the Company in writing (166 Moore Street, Ashburton). If any information that the Company holds is inaccurate, incomplete or not up to date the Customer may make a request to the Company to correct that information.
11 Security Interest
(a) These Terms create, in favour of the Company, a security interest in all goods that have, or in the future will be,supplied by the Company under these Terms.
(b) The Company’s interest in the goods continues if the goods are processed, included or dealt with in any way causing them to become accessions, processed or commingled goods (as defined in the Personal Property Securities Act 1999 (the PPSA)). The security interest in the original goods will continue in the whole in which they are included and the Customer agrees that it will not grant to any other person a security interest in either the goods or in the whole.
(c) The Customer authorises the Company to take possession of the collateral if the Company from time to time deems it necessary to do so to perfect or re-perfect the Company’s security interest in the collateral. For the purposes of this clause, possession includes but is not limited to the meaning ascribed to it in section 18 of the PPSA.
(d) The Customer agrees that it will not do anything or allow any act to be done, which would have the effect of allowing the creation of a lien over any or all of the collateral that is the subject of the Company’s security interest.
(e) The Customer agrees to indemnify the Company, upon demand from the Company, for all costs and expenses (including legal fees) incurred by the Company as a result of the Customer defaulting under these Terms and in complying with any demand made under section 162 of the PPSA.
(f) On the request of the Company, the Customer shall promptly do all things necessary and provide all information required by the Company to enable the Company to perfect and maintain the perfection of any security interest granted to the Company by the Customer (including registration of a financing statement over the goods or the proceeds thereof).
(g) The Customer shall promptly notify the Company of any changes to its personal details as supplied on the application form. Where the Customer proposes to change its name, it shall notify the Company accordingly within five days of the change taking effect.
(h) The Customer shall, within five working days of receiving a written request from the Company, supply the Company with copies of all security interests registered over the Customer’s personal property and the Customer hereby authorises the Company, as its duly appointed agent, to request information from any secured party relating to any security interest to which the Customer is a debtor.
(i) The parties contract out of sections 114(1)(a), 117(1)(c), 133 and 134 of the PPSA.
(j) The Customer waives its rights under sections 116, 119, 120(2), 121, 125, 129, 131, and 132 of the PPSA to the extent that these rights may be waived under section 107(2) of the PPSA.
(k) The Customer waives its right to receive a copy of the verification statement in respect of any financing statement relating to the security interest granted to the Company by the Customer.
The failure of the Company at any time to enforce any provision of these Terms shall not be construed as a waiver of any such provision or shall not in any way affect the validity of this contract or any part thereof. All waivers shall be effective only in writing by the Company.
13 Amendment of Terms
The Company reserves the right to amend these Terms at any time. Any such amendment to the Terms shall take effect upon from the date the Company notifies the Customer of that amendment.
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