Terms of trade
1.1 “Contract” means the terms and conditions contained herein, together with any Quotation, order, invoice or other document or amendments expressed to be supplemental to this Contract.
1.2 “TRL” means Total Refrigeration Limited T/A Total Refrigeration, its successors and assigns or any person acting on behalf of and with the authority of Total Refrigeration Limited T/A Total Refrigeration.
1.3 “Account Holder” means the person/s, entities or any person acting on behalf of and with the authority of the Account Holder requesting TRL to provide the Services as specified in any proposal, quotation, order, invoice or other documentation, and:
- (a) if there is more than one Account Holder, is a reference to each Account Holder jointly and severally; and
- (b) if the Account Holder is a partnership, it shall bind each partner jointly and severally; and
- (c) if the Account Holder is a part of a Trust, shall be bound in their capacity as a trustee; and
- (d) includes the Account Holder’s executors, administrators, successors and permitted assigns.
1.4 “Services” means all Services (including but not limited to, consultation, manufacturing and/or general purpose installation services, including marine) or Goods supplied by TRL to the Account Holder at the Account Holder’s request from time to time (where the context so permits the terms ‘Services’ or ‘Goods’ shall be interchangeable for the other).
1.5 “Confidential Information” means information of a confidential nature whether oral, written or in electronic form including, but not limited to, this Contract, either party’s intellectual property, operational information, know-how, trade secrets, financial and commercial affairs, contracts, client information (including but not limited to, “Personal Information” such as: name, address, D.O.B, occupation, driver’s license details, electronic contact (email, Facebook or Twitter details), medical insurance details or next of kin and other contact information (where applicable), previous credit applications, credit history) and pricing details.
1.6 “Cookies” means small files which are stored on a user’s computer. They are designed to hold a modest amount of data (including Personal Information) specific to a particular client and website, and can be accessed either by the web server or the client’s computer. If the Account Holder does not wish to allow Cookies to operate in the background when ordering from the website, then the Account Holder shall have the right to enable / disable the Cookies first by selecting the option to enable / disable provided on the website, prior to ordering Services via the website.
1.7 “Price” means the Price payable (plus any Goods and Services Tax (“GST”) where applicable) for the Services as agreed between TRL and the Account Holder in accordance with clause 6 below.
2.1 The Account Holder is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Account Holder places an order for or accepts delivery of any Services.
2.2 In the event of any inconsistency between the terms and conditions of this Contract and any other prior document or schedule that the parties have entered into, the terms of this Contract shall prevail.
2.3 Any amendment to the terms and conditions contained in this Contract may only be amended in writing by the consent of both parties.
2.4 The Account Holder acknowledges that the supply of Services on credit shall not take effect until the Account Holder has completed a credit application with TRL and it has been approved with a credit limit established for the account.
2.5 In the event that the supply of Services request exceeds the Account Holders credit limit and/or the account exceeds the payment terms, TRL reserves the right to refuse delivery.
2.6 Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 226 of the Contract and Commercial Law Act 2017 or any other applicable provisions of that Act or any Regulations referred to in that Act.
2.7 The Account Holder acknowledges and accepts:
- (a) 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, TRL reserves the right to vary the Price with alternative Goods as per clause 6.2 subject to prior confirmation and agreement of both parties; and
- (b) TRL also reserves the right to halt all Services until such time as TRL and the Account Holder agree to such changes. TRL shall not be liable to the Account Holder for any loss or damage the Account Holder suffers due to TRL exercising its rights under this clause; and
- (c) the cost of any fees or inspections by engineers or council shall be the responsibility of the Account Holder.
2.8 If TRL has been requested by the Account Holder to diagnose a fault that requires investigation, disassembly and/or testing, all costs involved will be charged to the Account Holder irrespective of whether or not the repair goes ahead.
2.9 TRL has the right to postpone or refuse to provide Services where:
- (a) unsafe or unsanitary conditions exist; or
- (b) TRL deems the equipment under the Contract is no longer economically repairable. TRL will provide the Account Holder with a proposal to replace such equipment; or
- (c) the access to the equipment is not accessible including but not limited to, having adequate crawl space, attic and roof space to provide dry access to service equipment and assets.
2.10 These terms and conditions may be meant to be read in conjunction with TRL’s Hire Form, and:
- (a) where the context so permits, the terms ‘Services’ or ‘Material’ shall include any supply of Equipment, as defined therein; and
- (b) if there are any inconsistencies between the two documents then the terms and conditions contained therein shall prevail.
3. Errors and Omissions
3.1 The Account Holder acknowledges and accepts that TRL shall, without prejudice, accept no liability in respect of any alleged or actual error(s) and/or omission(s):
- (a) resulting from an inadvertent mistake made by TRL in the formation and/or administration of this Contract; and/or
- (b) contained in/omitted from any literature (hard copy and/or electronic) supplied by TRL in respect of the Services.
3.2 In the event such an error and/or omission occurs in accordance with clause 3.1, and is not attributable to the negligence and/or wilful misconduct of TRL; the Account Holder shall not be entitled to treat this Contract as repudiated nor render it invalid.
4. Authorised Representatives
4.1 Unless otherwise limited as per clause 4.2 the Account Holder agrees that should the Account Holder introduce any third party to TRL as the Account Holder’s duly authorised representative, that once introduced that person shall have the full authority of the Account Holder to order any Services or Goods on the Account Holder’s behalf and/or to request any variation to the Services on the Account Holder’s behalf (such authority to continue until all requested Services have been completed or the Account Holder otherwise notifies TRL in writing that said person is no longer the Account Holder’s duly authorised representative).
4.2 In the event that the Account Holder’s duly authorised representative as per clause 4.1 is to have only limited authority to act on the Account Holder’s behalf then the Account Holder must specifically and clearly advise TRL in writing of the parameters of the limited authority granted to their representative.
4.3 The Account Holder specifically acknowledges and accepts that they will be solely liable to TRL for all additional costs incurred by TRL (including TRL’s profit margin) in providing any Goods, Services, or variation/s requested by the Account Holder’s duly authorised representative (subject always to the limitations imposed under clause 4.2 (if any)).
5. Authorised Representatives
5.1 The Account Holder shall give TRL not less than fourteen (14) days prior written notice of any proposed change of ownership of the Account Holder and/or any other change in the Account Holder’s details (including but not limited to, changes in the Account Holder’s name, address, contact phone or fax number/s, change of trustees, or business practice). The Account Holder shall be liable for any loss incurred by TRL as a result of the Account Holder’s failure to comply with this clause.
6. Authorised Representatives
6.1 At TRL’s sole discretion the Price shall be either:
- (a) as indicated on invoices provided by TRL to the Account Holder in respect of Services performed or Goods supplied; or
- (b) TRL’s Price at the date of delivery of the Services according to TRL’s current pricelist; or
- (c) TRL’s quoted Price (subject to clause 6.2) which shall be binding upon TRL provided that the Account Holder shall accept TRL’s quotation in writing within thirty (30) days.
6.2 TRL reserves the right to change the Price:
- (a) if a variation to the Goods which are to be supplied is requested; or
- (b) if a variation to the Services originally scheduled (including any applicable plans or specifications) is requested; or
- (c) where additional Services are required due to the discovery of hidden or unidentifiable difficulties (including, but not limited to, poor weather conditions, limitations to accessing the site or insufficient crawl space, obscured building defects which requires remedial work, safety considerations and/or health hazards (such as the discovery of asbestos or other hazardous materials), existing wiring not up to current code standards, prerequisite work by any third party not being completed, hidden amenities (as per clause 11), or further faults found on disassembly and/or further inspection etc.) which are only discovered on commencement of the Services; or
- (d) in the event of increases to TRL in the cost of labour or materials which are beyond TRL’s control.
6.3 Variations will be charged for on the basis of TRL’s quotation, and will be detailed in writing, and shown as variations on TRL’s invoice. The Account Holder shall be required to respond to any variation submitted by TRL within ten (10) working days. Failure to do so will entitle TRL to add the cost of the variation to the Price. Payment for all variations must be made in full at the time of their completion.
6.4 At TRL’s sole discretion a non-refundable deposit may be required.
6.5 Time for payment for the Services being of the essence, the Price will be payable by the Account Holder on the date/s determined by TRL, which may be:
- (a) on completion of the Services; or
- (b) for existing approved account holders, the date which is seven (7) days following the date of any invoice given to the Account Holder by TRL; or
- (c) the date specified on any invoice or other form as being the date for payment; or
- (d) by way of progress payments which must be agreed upon by TRL prior to the commencement of any Services and be in accordance with TRL’s specified progress payment schedule. Such progress payment claims may include the reasonable value of authorised variations and the value of any Goods delivered to the worksite but not yet installed.
6.6 At the agreement of both parties, payment of the Price may be subject to retention by the Account Holder of an amount (hereafter called the “Retention Money”), being a set amount or equal to a percentage of the Price. The Account Holder shall hold the Retention Money for the agreed period following completion of the Services during which time all Services are to be completed and/or all defects are to be remedied. Any Retention Money applicable to this Contract is to be dealt with in accordance with Subpart 2A – sections 18(a) to 18(i) of the Construction Contracts Amendment Act 2015.
6.7 Payment may be made by cash, cheque, bank cheque, electronic/on-line banking, credit card (a surcharge may apply per transaction), or by any other method as agreed to between the Account Holder and TRL.
6.8 TRL may in its discretion allocate any payment received from the Account Holder towards any invoice that TRL determines and may do so at the time of receipt or at any time afterwards. On any default by the Account Holder TRL may re-allocate any payments previously received and allocated. In the absence of any payment allocation by TRL, payment will be deemed to be allocated in such manner as preserves the maximum value of TRL’s Purchase Money Security Interest (as defined in the PPSA) in the Goods.
6.9 The Account Holder shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Account Holder by TRL nor to withhold payment of any invoice because part of that invoice is in dispute, unless the request for payment by TRL is a claim made under the Construction Contracts Act 2002.
6.10 Unless otherwise stated the Price does not include GST. In addition to the Price, the Account Holder must pay to TRL an amount equal to any GST TRL must pay for any supply by TRL under this or any other agreement for the sale of the Goods. The Account Holder must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Account Holder pays the Price. In addition, the Account Holder must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.
7. Provision of the Services
7.1 Subject to clause 7.2 it is TRL’s 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 TRL claims an extension of time (by giving the Account Holder written notice) where completion is delayed by an event beyond TRL’s control, including but not limited to any failure by the Account Holder to:
- (a) make a selection; or
- (b) have the site ready for the Services; or
- (c) notify TRL that the site is ready.
7.3 TRL may deliver the Services by separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.
7.4 Any time specified by TRL for delivery of the Services is an estimate only and TRL will not be liable for any loss or damage incurred by the Account Holder as a result of delivery being late. However both parties agree that they shall make every endeavour to enable the Services to be supplied at the time and place as was arranged between both parties. In the event that TRL is unable to supply the Services as agreed solely due to any action or inaction of the Account Holder, then TRL shall be entitled to charge a reasonable fee for re-supplying the Services at a later time and date, and/or for storage of the Goods.
8. General Risk
8.1 If TRL retains ownership of the Goods under clause 13 then:
- (a) where TRL is supplying Goods only, all risk for the Goods shall immediately pass to the Account Holder on delivery and the Account Holder must insure the Goods on or before delivery. Delivery of the Goods shall be deemed to have taken place immediately at the time that either;
(i) the Account Holder or the Account Holder’s nominated carrier takes possession of the Goods at TRL’s address; or
(ii) the Goods are delivered by TRL or TRL’s nominated carrier to the Account Holder’s nominated delivery address (even if the Account Holder is not present at the address).
- (b) where TRL is to both supply and install Goods then TRL shall maintain a contract works insurance policy until the Services are completed. Upon completion of the Services all risk for the Services shall immediately pass to the Account Holder.
8.2 Notwithstanding the provisions of clause 8.1 if the Account Holder specifically requests TRL to leave Goods outside TRL’s premises for collection or to deliver the Goods to an unattended location then such materials shall always be left at sole risk of the Account Holder and it shall be the Account Holder’s 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 the Account Holder’s expense.
8.3 The Account Holder acknowledges and agrees that where TRL has performed temporary repairs on the equipment that:
- (a) TRL offers no guarantee against the reoccurrence of the initial fault, or any further damage caused; and
- (b) TRL will immediately advise the Account Holder of the fault and shall provide the Account Holder with an estimate for the full repair of the damaged equipment.
8.4 The Account Holder agrees that all materials supplied by the Account Holder or the Account Holder’s third party sub-contractors will:
- (a) be supplied in accordance with all legislative requirements;
- (b) be suitable for their inclusion into the Services.
8.5 Where the Account Holder has supplied materials for TRL to complete the Services, the Account Holder acknowledges that it accepts responsibility for the suitability of purpose, quality and any faults inherent in those materials. However, if in TRL’s opinion, it is believed that the materials supplied will not conform to the New Zealand regulations, then TRL shall be entitled, without prejudice, to halt the Services until the appropriate conforming materials are sourced and all costs associated with such a change to the plans will be invoiced in accordance with clause 6.2
8.6 The Account Holder warrants 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 (including, but not limited to, meter boxes, main switches, circuit breakers, and electrical cable) are of suitable capacity to handle the Goods once installed. If, for any reason (including the discovery of asbestos, defective or unsafe wiring, or dangerous access to crawl spaces and/or roofing), TRL reasonably forms the opinion that the Account Holder’s premises is not safe for the installation of Goods to proceed then TRL shall be entitled to delay installation of the Goods (in accordance with clause 7.2) until TRL is satisfied that it is safe for the installation to proceed.
8.7 In the event asbestos or any other toxic substances are discovered at the property, that it is the Account Holder’s responsibility to ensure the safe removal of the same. The Account Holder further agrees to indemnify TRL against any costs incurred by TRL as a consequence of such discovery. Under no circumstances will TRL handle removal of asbestos product.
8.8 All work 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 of the cabling work will comply with the Australian and New Zealand Wiring standards.
8.9 Where the Account Holder has supplied materials for TRL to complete the Services, the Account Holder acknowledges that they accepts responsibility for the suitability of purpose, quality and any faults inherent in the materials. TRL shall not be responsible for any defects in the Services, any loss or damage to the Goods (or any part thereof), howsoever arising from the use of materials supplied by the Account Holder.
8.10 The Account Holder acknowledges that:
- (a) TRL is only responsible for parts that are replaced by TRL, and in the event that other parts/goods, subsequently fail, the Account Holder agrees to indemnify TRL against any loss or damage to the Goods, or caused by the Goods, or any part thereof howsoever arising;
- (b) all descriptive specifications, illustrations, drawings, data dimensions, and weights stated in TRL’s fact sheets, price lists or advertising material are indicative only and that they have not relied on such information; and
- (c) they shall
(i) not be entitled to withhold any payment due under this contract because of any delay in the connection of, or the supply of electricity to the Goods by an electrical distributor or any other third party;
(ii) be responsible for any building work, excavation work, core drilling or any other non-standard surface penetrations that need to be carried out to enable TRL to carry out the Services; and
(iii) provide and have erected scaffolding to enable the Services to be undertaken (where in TRL’s opinion it is deemed necessary). Any scaffolding must comply with industry safety standards and any person erecting the scaffolding shall be suitably qualified to ensure its safe and proper erection, and where necessary, shall hold a current certificate of competency and/or be fully licensed; an
(iv) remove any furniture or personal/valuable items from the vicinity of the Services, and agrees that TRL shall not be liable for any damage caused to those items through the Account Holder’s failure to comply with this clause; and
(v) provide TRL while at the worksite with adequate access to electricity, temporary lighting, toilet, eating and first aid facilities if so required;
(vi) be wholly responsible the removal of rubbish from or clean-up of the worksite and any animals and/or children present on the worksite.
- (a) shall upon installation ensure that all Goods are to be installed in a manner that is fully compliant with industry standards. If, for any reason, the Account Holder specifically requires the Goods to be installed in any way which goes against TRL’s recommendations and/or falls below industry standards; a request detailing that requirement must be made in writing to TRL. Accordingly, TRL offers no warranty in regards to the aforementioned;
- (b) shall be entitled to rely on the accuracy of any plans, specifications and other information provided by the Account Holder. The Account Holder acknowledges and agrees that in the event that any of this information provided by the Account Holder is inaccurate, TRL accepts no responsibility for any loss, damages, or costs however resulting from these inaccurate plans, specifications or other information; and
- (c) accepts no responsibility for:
(i) any damage or performance related problems with any Goods where they have not been used and/or maintained in accordance with TRL’s and/or the manufacturers’ recommendations;
(ii) any damage or defects in any Goods caused by movement and/or interference of the said Goods;
(iii) painting, re-decorating, re-sealing, carpentry or any other Services required for the restoration or making good of any surface/area where any Services have been carried out.
8.12 The Account Holder warrants that no other tradesmen interfere with any Services and/or Goods supplied under this Contract. TRL shall not be liable for any costs, damages or loss however arising from the Account Holder’s failure to comply with this clause.
9. Air Conditioning/Refrigeration/Marine Risk
9.1 Whilst the final location of any unit(s) is at the Account Holder discretion, TRL or their approved installer reserve the right to halt work if they believe that the unit is being placed in the incorrect area for best usage and delivery of best unit operation efficiency. If this is the case, TRL (or their approved installer) will require a change to the “Scope of Work”, with a written and signed variation to include the change and the agreement from the Account Holder that in their opinion the unit placement is at the client’s decision only and may not therefore provide best efficiencies. Such variation may well incur further cost over and above the agreed quote prior to these changes.
9.2 The final location shall be as above described, with the agreement between the parties;
9.3 TRL shall upon installation ensure that all installed equipment meets current industry standards applicable to noise levels, however TRL cannot guarantee that noise levels will remain constant post installation as the equipment may be impacted by many factors such as the weather, lack of maintenance, tampering etc.
9.4 In the event that any of the equipment needs to be relocated due to complaints from neighbours or local authorities, then the Account Holder shall be responsible for any and all costs involved.
9.5 The Account Holder acknowledges and agrees that it is their responsibility to insure any equipment partly or completely installed on site, against theft or damage.
9.6 In the event that the electrical wiring is required to be re-positioned at the request of any third party contracted by the Account Holder then the Account Holder agrees to notify TRL immediately upon any proposed changes. The Account Holder agrees to indemnify TRL against any additional costs incurred with such a relocation of electrical wiring. All such variances shall be invoiced in accordance with clause 6.2.
10.1 The Account Holder shall ensure that TRL has clear and free access to the work site at all times to enable them to undertake the Services. TRL shall not be liable for any loss or damage to the site (including, without limitation, damage to pathways, driveways and concreted or paved or grassed areas) unless due to the negligence of TRL.
10.2 The Account Holder agrees to be present at the worksite when and as reasonably requested by TRL and its employees, contractors and/or agents.
11. Hidden Amenities
11.1 Prior to TRL commencing any work the Account Holder must advise TRL of the precise location of all hidden amenities on the site and clearly mark the same. The hidden amenities the Account Holder must identify include, but are not limited to, electrical services, gas services, sewer services, pumping services, sewer connections, sewer sludge mains, water mains, irrigation pipes, telephone cables, fibre optic cables, oil pumping mains, and any other services that may be on site.
11.2 Whilst TRL will take all care to avoid damage to any hidden amenities the Account Holder agrees to indemnify TRL in respect of all and any liability claims, loss, damage, costs and fines as a result of damage to services not precisely located and notified as per clause 11.1.
12. Compliance with Laws
12.1 The Account Holder and TRL shall comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities that may be applicable to the Services including any WorkSafe health and safety laws relating or any other relevant safety standards or legislation pertaining to the Services.
12.2 The Account Holder shall obtain (at the expense of the Account Holder) all licenses and approvals that may be required for the Goods.
12.3 Notwithstanding clause 12.1 and pursuant to the Health & Safety at Work Act 2015 (the “HSW Act”) TRL agrees at all times comply with sections 28 and 34 of the “HSW Act” with meeting their obligations for health and safety laws in the workplace regardless of whether they may be the party in control of the worksite or where they may be acting as a sub-contractor for the Account Holder who has engaged a thirty party head contractor.
12.4 If during the course of installation when the Services are being conducted within and around switchboards that if the same is found defective or deemed to be unsafe by TRL, then TRL shall notify the Account Holder immediately. The power, if isolated, will not be re-energised until such time as the existing condition has been rectified and made safe in accordance to the Electrical Safety Regulations. The Account Holder accepts and agrees that any costs associated with the rectification Services including any Goods and labour shall be the responsibility of the Account Holder and will be shown as a variation on the invoice.
12.5 Any live services or Services undertaken near live conductors where it is safe to do so shall be dealt with in accordance with Australian and New Zealand Wiring standards being “Safe working on Low Voltage Electrical Installations, relevant Commonwealth and Statutory Acts and Work Place Regulations”. TRL’s live services procedures are designed to eliminate risk of injury to TRL’s employees, damage to the Account Holder’s installations and unexpected power disconnections. It may in some cases require disconnection and isolation of the installation to undertake such Services for which additional charges may be applicable. This shall be invoiced in accordance with clause 6.2.
13.1 TRL and the Account Holder agree that ownership of the Goods shall not pass until:
- (a) the Account Holder has paid TRL all amounts owing to TRL; and
- (b) the Account Holder has met all of its other obligations to TRL.
13.2 Receipt by TRL of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised.
13.3 It is further agreed that:
- (a) until ownership of the Goods passes to the Account Holder in accordance with clause 13.1 that the Account Holder is only a bailee of the Goods and unless the Goods have become fixtures must return the Goods to TRL on request;
- (b) the Account Holder holds the benefit of the Account Holder’s insurance of the Goods on trust for TRL and must pay to TRL the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed;
- (c) the production of these terms and conditions by TRL shall be sufficient evidence of TRL’s rights to receive the insurance proceeds direct from the insurer without the need for any person dealing with TRL to make further enquiries;
- (d) the Account Holder must not sell, dispose, or otherwise part with possession of the Goods other than in the ordinary course of business and for market value. If the Account Holder sells, disposes or parts with possession of the Goods then the Account Holder must hold the proceeds of any such act on trust for TRL and must pay or deliver the proceeds to TRL on demand;
- e) the Account Holder should not convert or process the Goods or intermix them with other goods but if the Account Holder does so then the Account Holder holds the resulting product on trust for the benefit of TRL and must sell, dispose of or return the resulting product to TRL as it so directs;
- (f) unless the Goods have become fixtures the Account Holder irrevocably authorises TRL to enter any premises where TRL believes the Goods are kept and recover possession of the Goods;
- (g) TRL may recover possession of any Goods in transit whether or not delivery has occurred;
- (h) the Account Holder shall not charge or grant an encumbrance over the Goods nor grant nor otherwise give away any interest in the Goods while they remain the property of TRL;
- (i) TRL may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Account Holder.
14. Personal Property Securities Act 1999 (“PPSA”)
14.1 Upon assenting to these terms and conditions in writing the Account Holder acknowledges and agrees that:
- (a) these terms and conditions constitute a security agreement for the purposes of the PPSA; and
- (b) a security interest is taken in all Goods and/or collateral (account) – being a monetary obligation of the Account Holder to TRL for Services – that have previously been supplied and that will be supplied in the future by TRL to the Account Holder.
14.2 The Account Holder undertakes to:
- (a) sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which TRL may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register;
- (b) indemnify, and upon demand reimburse, TRL for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register or releasing any Goods charged thereby;
- (c) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods and/or collateral (account) in favour of a third party without the prior written consent of TRL; and
- (d) immediately advise TRL of any material change in its business practices of selling Goods which would result in a change in the nature of proceeds derived from such sales.
14.3 TRL and the Account Holder agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms and conditions.
14.4 The Account Holder waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, and 131 of the PPSA.
14.5 Unless otherwise agreed to in writing by TRL, the Account Holder waives its right to receive a verification statement in accordance with section 148 of the PPSA.
14.6 The Account Holder shall unconditionally ratify any actions taken by TRL under clauses 14.1 to 14.5.
14.7 Subject to any express provisions to the contrary (including those contained in this clause 14), nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.
15. Personal Property Securities Act 1999 (“PPSA”)
15.1 In consideration of TRL agreeing to supply the Services, the Account Holder charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Account Holder either now or in the future, to secure the performance by the Account Holder of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
15.2 The Account Holder indemnifies TRL from and against all TRL’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising TRL’s rights under this clause.
15.3 The Account Holder irrevocably appoints TRL and each director of TRL as the Account Holder’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 15 including, but not limited to, signing any document on the Account Holder’s behalf.
16. Defects In Goods
16.1 The Account Holder shall inspect the Goods on delivery and shall within twenty one (21) days of delivery (time being of the essence) notify TRL of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Account Holder shall afford TRL an opportunity to inspect the Goods within a reasonable time following delivery if the Account Holder believes the Goods are defective in any way. If the Account Holder shall fail to comply with these provisions the Goods shall be presumed to be free from any defect or damage. For defective Goods, which TRL has agreed in writing that the Account Holder is entitled to reject, TRL’s liability is limited to either (at TRL’s discretion) replacing the Goods or repairing the Goods.
16.2 Goods will not be accepted for return other than in accordance with 16.1 above.
17.1 Returns will only be accepted provided that:
- (a) the Account Holder has complied with the provisions of clause 16.1; and
- (b) TRL has agreed in writing to accept the return of the Goods; and
- (c) the Goods are returned at the Account Holder’s cost within fourteen (14) days of the delivery date; and
- (d) TRL will not be liable for Goods which have not been stored or used in a proper manner; and
- (e) the Goods are returned in the condition in which they were delivered and with all packaging material, brochures and instruction material in as new condition as is reasonably possible in the circumstances.
17.2 TRL may (in its discretion) accept the return of Goods for credit but this may incur a handling fee of fifteen percent (15%) of the value of the returned Goods plus any freight.
17.3 Non-stocklist items or Goods made to the Account Holder’s specifications are under no circumstances acceptable for credit or return.
18.1 Subject to the conditions of warranty set out in clause 18.2 TRL warrants that if any defect in any workmanship of TRL becomes apparent and is reported to TRL within three (3) months of the date of delivery (time being of the essence) then TRL will either (at TRL’s sole discretion) replace or remedy the workmanship.
18.2 The conditions applicable to the warranty given by clause 18.1 are:
- (a) the warranty is only valid in New Zealand:
- (b) the warranty shall not cover any defect or damage which may be caused or partly caused by or arise through:
(i) failure on the part of the Account Holder to properly maintain any Goods; or
(ii) failure on the part of the Account Holder to follow any instructions or guidelines provided by TRL; or
(iii) any use of any Goods otherwise than for any application specified on a quote or order form; or
(iv) the continued use of any Goods after any defect becomes apparent or would have become apparent to a reasonably prudent operator or user; or
(v) fair wear and tear, any accident or act of God.
- (c) the warranty shall cease and TRL shall thereafter in no circumstances be liable under the terms of the warranty if the workmanship is repaired, altered or overhauled without TRL’s consent.
- (d) in respect of all claims TRL shall not be liable to compensate the Account Holder for any delay in either replacing or remedying the workmanship or in properly assessing the Account Holder’s claim.
18.3 For Goods not manufactured by TRL, the warranty shall be the current warranty provided by the manufacturer (subject to any requirements stipulated by the manufacturer with regard to any periodic servicing schedule by the manufacturer’s agent such as TRL) of the Goods. TRL shall not be bound by nor be responsible for any term, condition, representation or warranty other than that which is given by the manufacturer of the Goods.
18.4 The Account Holder accepts that Services undertaken by TRL in relation to a claim against the manufacturer’s warranty will incur labour and service charges.
19. Consumer Guarantees Act 1993
19.1 If the Account Holder is acquiring Goods for the purposes of a trade or business, the Account Holder acknowledges that the provisions of the Consumer Guarantees Act 1993 do not apply to the supply of Goods by TRL to the Account Holder.
20. Consumer Guarantees Act 1993
20.1 Where TRL has designed, drawn, written plans or a schedule of Services, or created any products for the Account Holder, then the copyright in all such designs, drawings, documents, plans, schedules and products shall remain vested in TRL, and shall only be used by the Account Holder at TRL’s discretion. Under no circumstances may such designs, drawings and documents be used without the express written approval of TRL.
20.2 The Account Holder warrants that all designs, specifications or instructions given to TRL will not cause TRL to infringe any patent, registered design or trademark in the execution of the Account Holder’s order and the Account Holder agrees to indemnify TRL against any action taken by a third party against TRL in respect of any such infringement.
20.3 The Account Holder agrees that TRL may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings, plans or products which TRL has created for the Account Holder.
21. Default and Consequences of Default
21.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at TRL’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
21.2 If the Account Holder owes TRL any money the Account Holder shall indemnify TRL from and against all costs and disbursements incurred by TRL in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, TRL’s collection agency costs, and bank dishonour fees).
21.3 Further to any other rights or remedies TRL may have under this Contract, if a Account Holder has made payment to TRL, and the transaction is subsequently reversed, the Account Holder shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by TRL under this clause 21, where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Account Holder’s obligations under this Contract.
21.4 Without prejudice to TRL’s other remedies at law TRL shall be entitled to cancel all or any part of any order of the Account Holder which remains unfulfilled and all amounts owing to TRL shall, whether or not due for payment, become immediately payable if:
- (a) any money payable to TRL becomes overdue, or in TRL’s opinion the Account Holder will be unable to make a payment when it falls due;
- (b) the Account Holder has exceeded any applicable credit limit provided by TRL;
- (c) the Account Holder becomes insolvent or bankrupt, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
- (d) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Account Holder or any asset of the Account Holder.
22.1 Without prejudice to any other rights or remedies TRL may have, if at any time the Account Holder is in breach of any obligation (including those relating to payment and/or failure to remedy any breach in respect of this Contract within ten (10) working days of receipt by the Account Holder of such notice/s) then TRL may suspend the Services immediately. TRL will not be liable to the Account Holder for any loss or damage the Account Holder suffers because TRL has exercised its rights under this clause.
22.2 TRL may cancel any contract to which these terms and conditions apply or cancel delivery of Services at any time before the Services are commenced by giving written notice to the Account Holder. On giving such notice TRL shall repay to the Account Holder any sums paid in respect of the Price, less any amounts owing by the Account Holder to TRL for Services already performed. TRL shall not be liable for any loss or damage whatsoever arising from such cancellation.
22.3 In the event that the Account Holder cancels the delivery of Services the Account Holder shall be liable for any and all loss incurred (whether direct or indirect) by TRL as a direct result of the cancellation (including, but not limited to, any loss of profits).
22.4 Cancellation of orders for products made to the Account Holder’s specifications, or for non-stocklist items, will definitely not be accepted once production has commenced, or an order has been placed.
23.1 All emails, documents, images or other recorded information held or used by TRL is Personal Information as defined and referred to in clause 23.3 and therefore considered confidential. TRL acknowledges its obligation in relation to the handling, use, disclosure and processing of Personal Information pursuant to the Privacy Act 1993 (“the Act”) including Part II of the OECD Guidelines and as set out in Schedule 5A of the Act and any statutory requirements where relevant in a European Economic Area “EEA” then the EU Data Privacy Laws (including the General Data Protection Regulation “GDPR”) (collectively, “EU Data Privacy Laws”). TRL acknowledges that in the event it becomes aware of any data breaches and/or disclosure of the Account Holders Personal Information, held by TRL that may result in serious harm to the Account Holder, TRL will notify the Account Holder in accordance with the Act and/or the GDPR. Any release of such Personal Information must be in accordance with the Act and the GDPR (where relevant) and must be approved by the Account Holder by written consent, unless subject to an operation of law.
23.2 Notwithstanding clause 23.1, privacy limitations will extend to TRL in respect of Cookies where transactions for purchases/orders transpire directly from TRL’s website. TRL agrees to display reference to such Cookies and/or similar tracking technologies, such as pixels and web beacons (if applicable), such technology allows the collection of Personal Information such as the Account Holder’s:
- (a) IP address, browser, email client type and other similar details;
- (b) tracking website usage and traffic; and
- (c) reports are available to TRL when TRL sends an email to the Account Holder, so TRL may collect and review that information (“collectively Personal Information”)
In order to enable / disable the collection of Personal Information by way of Cookies, the Account Holder shall have the right to enable / disable the Cookies first by selecting the option to enable / disable, provided on the website prior to proceeding with a purchase/order via TRL’s website.
23.3 The Account Holder authorises TRL or TRL’s agent to:
- (a) access, collect, retain and use any information about the Account Holder;
(i) (including, name, address, D.O.B, occupation, driver’s license details, electronic contact (email, Facebook or Twitter details), medical insurance details or next of kin and other contact information (where applicable), previous credit applications, credit history or any overdue fines balance information held by the Ministry of Justice) for the purpose of assessing the Account Holder’s creditworthiness; or
(ii) for the purpose of marketing products and services to the Account Holder.
- (b) disclose information about the Account Holder, whether collected by TRL from the Account Holder directly or obtained by TRL 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 the Account Holder.
23.4 Where the Account Holder is an individual the authorities under clause 23.3 are authorities or consents for the purposes of the Privacy Act 1993.
23.5 The Account Holder shall have the right to request TRL for a copy of the Personal Information about the Account Holder retained by TRL and the right to request TRL to correct any incorrect Personal Information about the Account Holder held by TRL.
24. Suspension of Services
24.1 Where the Contract is subject to section 24A of the Construction Contracts Amendment Act 2015, the Account Holder hereby expressly acknowledges that:
- (a) TRL has the right to suspend work within five (5) working days of written notice of its intent to do so if a payment claim is served on the Account Holder, and:
(i) the payment is not paid in full by the due date for payment in accordance with clause 6.5 and/or any subsequent amendments or new legislation and no payment schedule has been given by the Account Holder; or
(ii) a scheduled amount stated in a payment schedule issued by the Account Holder in relation to the payment claim is not paid in full by the due date for its payment; or
(iii) the Account Holder has not complied with an adjudicator’s notice that the Account Holder must pay an amount to TRL by a particular date; and
(iv) TRL has given written notice to the Account Holder of its intention to suspend the carrying out of construction work under the construction Contract.
- (b) if TRL suspends work, it:
(i) is not in breach of Contract; and
(ii) is not liable for any loss or damage whatsoever suffered, or alleged to be suffered, by the Account Holder or by any person claiming through the Account Holder; and
(iii) is entitled to an extension of time to complete the Contract; and
(iv) keeps its rights under the Contract including the right to terminate the Contract; 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.
- (c) if TRL exercises the right to suspend work, the exercise of that right does not:
(i) affect any rights that would otherwise have been available to TRL under the Contract and Commercial Law Act 2017; or
(ii) enable the Account Holder to exercise any rights that may otherwise have been available to the Account Holder under that Act as a direct consequence of TRL suspending work under this provision;
- (d) due to any act or omission by the Account Holder, the Account Holder effectively precludes TRL from continuing the Services or performing or complying with TRL’s obligations under this Contract, then without prejudice to TRL’s other rights and remedies, TRL may suspend the Services immediately after serving on the Account Holder a written notice specifying the payment default or the act, omission or default upon which the suspension of the Services is based. All costs and expenses incurred by TRL as a result of such suspension and recommencement shall be payable by the Account Holder as if they were a variation.
24.2 If pursuant to any right conferred by this Contract, TRL suspends the Services and the default that led to that suspension continues un-remedied subject to clause 22.1 for at least ten (10) working days, TRL shall be entitled to terminate the Contract, in accordance with clause 22.
25. Service of Notices
25.1 Any written notice given under this Contract shall be deemed to have been given and received:
- (a) by handing the notice to the other party, in person;
- (b) by leaving it at the address of the other party as stated in this Contract;
- (c) by sending it by registered post to the address of the other party as stated in this Contract;
- (d) if sent by facsimile transmission to the fax number of the other party as stated in this Contract (if any), on receipt of confirmation of the transmission;
- (e) if sent by email to the other party’s last known email address.
25.2 Any notice that is posted shall be deemed to have been served, unless the contrary is shown, at the time when by the ordinary course of post, the notice would have been delivered.
26.1 If the Account Holder at any time upon or subsequent to entering in to the Contract is acting in the capacity of trustee of any trust (“Trust”) then whether or not TRL may have notice of the Trust, the Account Holder covenants with TRL as follows:
- (a) the Contract extends to all rights of indemnity which the Account Holder now or subsequently may have against the Trust and the trust fund;
- (b) the Account Holder has full and complete power and authority under the Trust to enter into the Contract and the provisions of the Trust do not purport to exclude or take away the right of indemnity of the Account Holder against the Trust or the trust fund. The Account Holder will not release the right of indemnity or commit any breach of trust or be a party to any other action which might prejudice that right of indemnity;
- (c) the Account Holder will not without consent in writing of TRL (TRL will not unreasonably withhold consent), cause, permit, or suffer to happen any of the following events:
(i) the removal, replacement or retirement of the Account Holder as trustee of the Trust;
(ii) any alteration to or variation of the terms of the Trust;
(iii) any advancement or distribution of capital of the Trust; or
(iv) any resettlement of the trust property.
27.1 Any dispute or difference arising as to the interpretation of these terms and conditions or as to any matter arising hereunder, shall be submitted to, and settled by, either adjudication in accordance with the Construction Contracts Act 2002 and/or by arbitration in accordance with the Arbitration Act 1996 or its replacement(s).
27.2 The failure by either party to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect that party’s right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
27.3 These terms and conditions and any contract to which they apply shall be governed by the laws of New Zealand and are subject to the jurisdiction of the courts of Auckland.
27.4 TRL shall be under no liability whatsoever to the Account Holder for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Account Holder arising out of a breach by TRL of these terms and conditions (alternatively TRL’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Services).
27.5 TRL may licence and/or assign all or any part of its rights and/or obligations under this Contract without the Account Holder’s consent.
27.6 The Account Holder cannot licence or assign without the written approval of TRL.
27.7 TRL may elect to subcontract out any part of the Services but shall not be relieved from any liability or obligation under this Contract by so doing. Furthermore, the Account Holder agrees and understands that they have no authority to give any instruction to any of TRL’s sub-contractors without the authority of TRL.
27.8 The Account Holder agrees that TRL may amend their general terms and conditions for subsequent future contracts with the Account Holder by disclosing such to the Account Holder in writing. These changes shall be deemed to take effect from the date on which the Account Holder accepts such changes, or otherwise at such time as the Account Holder makes a further request for TRL to provide Services to the Account Holder.
27.9 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.
27.10 Both parties warrant that they have the power to enter into this Contract and have obtained all necessary authorisations to allow them to do so, they are not insolvent and that this Contract creates binding and valid legal obligations on them.