Below are our Terms and Conditions for
commercial and
domestic clients.
Parties – “the Seller” means
Everest Air Conditioning Limited and
“the Buyer” means the person, firm or company buying any goods or services from the Seller.
“Goods” means present and after acquired merchandise or items supplied by the Seller to the Buyer.
“Services” means all present and subsequent work carried out by the Seller for the Buyer relating to the design, installation, maintenance and service of the Goods.
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Conditions of Sale
This Agreement forms the basis on which the Seller supplies and sells Goods and Services to the Buyer. Upon acceptance these Conditions will constitute the complete terms and conditions of sale. Any representation, verbal or otherwise, not included in these Terms and Conditions will be without effect unless expressly confirmed in writing by the Seller.
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Payment
a) All accounts are due and payable not later than the 20th day of the month next following that in which the Goods are dispatched by the Seller to the Buyer or in which the services are provided by the Seller to the Buyer or both (“the due date”). However this credit facility may be cancelled by the Seller at any time and immediate payment demanded for any Goods or Services previously supplied or to be supplied in the future.
b) The Seller may require payment or satisfactory security before delivery of any Goods or Services. The failure to demand such payment or security will not constitute waiver by the Seller of any such rights in the future.
c) The Seller may require the Buyer to complete a Credit Application Form and to provide the necessary personal guarantee required by that form prior to the Seller providing any Goods or Services to the Buyer
d) The Seller reserves the right to suspend deliveries where payment is not received in accordance with paragraph (a) of this clause, or in accordance with any alternative arrangement which may have been agreed in writing between the parties.
e) If payment is not received on the due date the Buyer will pay interest on the unpaid amount from the due date until payment at the rate of 2% per annum above the Seller’s applicable overdraft rate calculated on a daily basis from the due date.
f) Any collection costs incurred because the debt has been placed with a collection agency due to the default by the Buyer will be payable by the Buyer.
g) The Buyer acknowledges that all prices quoted are subject to:
(i) Adjustment if delivery of the Products is required more that sixty (60) calendar days after acceptance of the quoted price. Such adjustment shall be at the Seller’s sole discretion;
(ii) The imposition of a minimum price order of $25.00 plus transportation.
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Retention of Title
The parties agree that property in the Goods will not pass until payment is made and that the Goods or the proceeds of the sales of the Goods will be kept separate until the Seller has received all payments, and –
a) the buyer will hold the Goods, or any of them, on trust for the Seller as bailee of the Seller;
b) until such time ownership of the Goods passes from the Seller to the Buyer the Seller may give notice in writing to the Buyer to return the Goods, or any of them, to the Seller. Upon such notice the rights of the Buyer to obtain ownership or any other interest in the Goods shall cease. However this shall not entitle the Buyer to return the Goods without demand from the Seller;
c) if the Buyer fails to return the Goods to the Seller then the Seller or the Seller’s agent may enter upon and into buildings and premises owned occupied or used by the Buyer where the Goods are situated and take possession of the Goods;
d) the Buyer shall insure and keep insured the Goods to the full price against all risks until the price has been received by the Seller.
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Risk
All risk in any Goods or Services supplied under this Agreement (including risk of loss or damage) passes to the Buyer on delivery. The Buyer will be responsible for any loss or damage to the Goods or Services following delivery, and before passing of title, however caused.
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Amendment to Goods and Services Supplied
Should the Buyer request a change to the scope of the Goods and Services, then the Buyer must make a written request detailing the proposed change to the Seller. Any amendment to the scope of the Goods or Services must be agreed in writing by both parties in advance, and may result in alterations to the payment required by the Seller from the Buyer.
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Seller’s Obligations
(a) The Seller will provide the Services with the diligence, skill and due care properly expected of a competent and experienced organization normally providing such services.
(b) Subject to (a) above, the Seller will take all reasonable steps to provide the Services in compliance with any design specifications as agreed to in writing with the Buyer. However, where the Seller has not been responsible for the development of the design specifications, the Seller is not responsible whatsoever for any aspect of the performance of the system except when non-compliance is due to incorrect installation by the Seller.
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Force Majeure
a) In this clause, ‘Force Majeure’ means any event, action or circumstance beyond the reasonable control of a party that prevents or delays the completion of or compliance with any of the terms and conditions contained in this agreement by that party.
b) Neither party is liable for any delay or failure to perform any of its obligations under this Agreement if such delay or failure is due to Force Majeure. If a delay or failure by a party to perform its obligations is caused by Force Majeure, the performance of that party’s obligations will be suspended.
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Warranties to the Buyer
All conditions, guarantees and warranties expressed or implied by statute, common law, equity, trade customer usage or otherwise are expressly excluded to the maximum extent permitted by law. The liability of the Seller for breach of condition, guarantee or warranty that can not be excluded is limited, at the Sellers option, to the Seller supplying the Goods or Services in question again or rectifying the fault that caused the liability.
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Personal Property Securities Act
a) The parties acknowledge that in terms of the Personal Property Securities Act 1999 (“PPSA”) the Buyer grants a security interest to the Seller over the all the Goods delivered to the Buyer.
b) The security interest created by this Agreement secures all advances (including any future advances) made by the Seller to the Buyer.
c) The buyer consents to the Seller registering a financing statement in respect of the security interest created by this clause. The Buyer will provide any further information requested by the Seller necessary to facilitate the registration of any financing statement or any financing change statement as applicable. The Buyer waives its right to receive a verification statement from the Seller following the registration of the security interest.
d) Pursuant to Section 109 of the PPSA the Seller may take possession of and sell the Goods if the Buyer is in default under this Agreement, or if the Goods are at risk. In accordance with Section 109 of the PPSA Goods will be deemed to be “at risk” if the Seller has reasonable grounds to believe that the Goods have been or will be destroyed damaged endangered removed concealed or otherwise disposed of contrary to the provisions of this Agreement.
e) As the Buyer’s agent for the purposes of this clause, in order to take possession of the Goods pursuant to sub-clause (d) the Seller may enter the premises where Goods are stored and remove them. The Seller shall exercise reasonable care in entering and removing such Goods but shall not be liable for any damage caused.
f) To the extent permitted by law the Buyer and Seller contract out of –
(i) Section 114(1)(a) of the PPSA; and
(ii) The Buyer’s rights referred to in Section 107(2)(a), (c), (d), (h), (i) and (j) of the PPSA
g) The buyer agrees to indemnify the Seller upon demand for all costs and expenses (including legal fees on a solicitor/client basis) incurred by the Seller –
(i) As a result of the occurrence of an event of default (including upon actual or attempted enforcement of any security interest granted to the Seller by the Buyer); and
(ii) In complying with any demand made under Section 162 of the PPSA.
h) On the request of the Seller the Buyer will promptly do all things (including signing any delivery docket and or invoice) and to provide all information necessary to enable the Seller by the Buyer, including the registration of a financing statement.
i) The sale of the Goods other than in the ordinary course of business of the Buyer will be in breach of this Agreement.
j) The security interest in the Goods created by this Agreement extends to the proceeds of dealing with the Goods in accordance with the PPSA.
k) The Buyer acknowledges that the Seller will register (and as appropriate register a renewal of) the security interest created by this Agreement in the PPSA register.
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Trade Marks and Intellectual Property
The Buyer acknowledges that the Goods may include logo, trade mark or otherwise be the intellectual property of the manufacturer of the Goods and will not do anything which may be a breach of the intellectual property rights of the manufacturer and will indemnify the Seller from and against all claims which may be made against the Seller by the manufacturer or on behalf of the manufacturer arising out of any action taken by the Buyer.
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Severability
If any provision of this Agreement is held invalid, unenforceable or illegal for any reason, this Agreement shall remain otherwise in full force apart from such provision, which shall be deemed deleted.
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Governing Law
This agreement will be governed by and construed according to the laws of New Zealand and the Courts of New Zealand will have non-exclusive jurisdiction in any proceeding relating to it.
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Disputes
a) If any party to this Agreement claims that a difference or dispute has arisen (“the Dispute”) under or in relation to this Agreement, the party raising the Dispute must give written notice to the other party specifying the nature of the Dispute;
b) On receipt of that notice by the other party, the parties must endeavor in good faith to resolve the Dispute expeditiously using informal dispute resolution techniques such as mediation, expert evaluation and determination agreed by them.
c) If the dispute remains unsolved after one calendar month, the parties agree to refer the Dispute for resolution to a single arbitrator to be appointed (in the absence of agreement between the partied) by the President of the New Zealand Law Society.
d) In the event the Dispute is referred for arbitration in accordance with clause (c) above,
(i) The costs of arbitration will be shared equally between the parties.
(ii) The decision of the arbitrator shall be final and binding except that the parties reserve the right to appeal to the High Court of New Zealand on any point of law arising out of the arbitration decision; and
(iii) The provisions of the Arbitration Act 1996 shall apply.
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Parties – “the Seller” means
Everest Air Conditioning Limited and
“the Buyer” means the person firm or company buying any goods or services from the Seller.
“Goods” means present and after acquired merchandise or items supplied by the Seller to the Buyer.
“Services” means all present and subsequent work carried out by the Seller for the Buyer relating to the design, installation, maintenance and service of the Goods.
-
Conditions of Sale
This Agreement forms the basis on which the Seller supplies and sells Goods and Services to the Buyer. Upon acceptance these Conditions will constitute the complete terms and conditions of sale. Any representation, verbal or otherwise, not included in these Terms and Conditions will be without effect unless expressly confirmed in writing by the Seller.
-
Payment
a) All accounts are due and payable not later than seven (7) days following the date on which Goods are despatched by the Seller to the Buyer or in which the services are provided by the Seller to the Buyer or both (“the due date”).
b) The Seller may require payment or satisfactory security before delivery of any Goods or Services. The failure to demand such payment or security will not constitute waiver by the Seller of any such rights in the future.
c) The Seller reserves the right to suspend deliveries where payment is not received in accordance with paragraph (a) of this clause, or in accordance with any alternative arrangement which may have been agreed in writing between the parties.
d) If payment is not received on the due date the Buyer will pay interest on the unpaid amount from the due date until payment at the rate of 2% per annum above the Seller’s applicable overdraft rate calculated on a daily basis from the due date.
e) Any collection costs incurred because the debt has been placed with a collection agency due to the default by the Buyer will be payable by the Buyer.
f) The Buyer acknowledges that all prices quoted are subject to:
(i) Adjustment if delivery of the Products is required more that sixty (60) calendar days after acceptance of the quoted price. Such adjustment shall be at the Seller’s sole discretion;
(ii)The imposition of a minimum price order of $25.00 plus transportation.
-
Retention of Title
The parties agree that property in the Goods will not pass until payment is made and that the Goods or the proceeds of the sales of the Goods will be kept separate until the Seller has received all payments, and –
a) the buyer will hold the Goods, or any of them, on trust for the Seller as bailee of the Seller;
b) until such time ownership of the Goods passes from the Seller to the Buyer the Seller may give notice in writing to the Buyer to return the Goods, or any of them, to the Seller. Upon such notice the rights of the Buyer to obtain ownership or any other interest in the Goods shall cease. However this shall not entitle the Buyer to return the Goods without demand from the Seller;
c) if the Buyer fails to return the Goods to the Seller then the Seller or the Seller’s agent may enter upon and into buildings and premises owned occupied or used by the Buyer where the Goods are situated and take possession of the Goods;
d) the Buyer shall insure and keep insured the Goods to the full price against all risks until the price has been received by the Seller.
-
Risk
All risk in any Goods or Services supplied under this Agreement (including risk of loss or damage) passes to the Buyer on delivery. The Buyer will be responsible for any loss or damage to the Goods or Services following delivery, and before passing of title, however caused.
-
Amendment to Goods and Services Supplied
Should the Buyer request a change to the scope of the Goods and Services, then the Buyer must make a written request detailing the proposed change to the Seller. Any amendment to the scope of the Goods or Services must be agreed in writing by both parties in advance, and may result in alterations to the payment required by the Seller from the Buyer.
-
Seller’s Obligations
(a) The Seller will provide the Services with the diligence, skill and due care properly expected of a competent and experienced organization normally providing such services.
(b) Subject to (a) above, the Seller will take all reasonable steps to provide the Services in compliance with any design specifications as agreed to in writing with the Buyer. However, where the Seller has not been responsible for the development of the design specifications, the Seller is not responsible whatsoever for any aspect of the performance of the system except when non-compliance is due to incorrect installation by the Seller.
-
Force Majeure
a) In this clause, ‘Force Majeure’ means any event, action or circumstance beyond the reasonable control of a party that prevents or delays the completion of or compliance with any of the terms and conditions contained in this agreement by that party.
b) Neither party is liable for any delay or failure to perform any of its obligations under this Agreement if such delay or failure is due to Force Majeure. If a delay or failure by a party to perform its obligations is caused by Force Majeure, the performance of that party’s obligations will be suspended.
-
Warranties to the Buyer
All conditions, guarantees and warranties expressed or implied by statute, common law, equity, trade customer usage or otherwise are expressly excluded to the maximum extent permitted by law. The liability of the Seller for breach of condition, guarantee or warranty that can not be excluded is limited, at the Sellers option, to the Seller supplying the Goods or Services in question again or rectifying the fault that caused the liability.
-
Personal Property Securities Act
a) The parties acknowledge that in terms of the Personal Property Securities Act 1999 (“PPSA”) the Buyer grants a security interest to the Seller over the all the Goods delivered to the Buyer.
b) The security interest created by this Agreement secures all advances (including any future advances) made by the Seller to the Buyer.
c) The buyer consents to the Seller registering a financing statement in respect of the security interest created by this clause. The Buyer will provide any further information requested by the Seller necessary to facilitate the registration of any financing statement or any financing change statement as applicable. The Buyer waives its right to receive a verification statement from the Seller following the registration of the security interest.
d) Pursuant to Section 109 of the PPSA the Seller may take possession of and sell the Goods if the Buyer is in default under this Agreement, or if the Goods are at risk. In accordance with Section 109 of the PPSA Goods will be deemed to be “at risk” if the Seller has reasonable grounds to believe that the Goods have been or will be destroyed damaged endangered removed concealed or otherwise disposed of contrary to the provisions of this Agreement.
e) As the Buyer’s agent for the purposes of this clause, in order to take possession of the Goods pursuant to sub-clause (d) the Seller may enter the premises where Goods are stored and remove them. The Seller shall exercise reasonable care in entering and removing such Goods but shall not be liable for any damage caused.
f) To the extent permitted by law the Buyer and Seller contract out of –
(i) Section 114(1)(a) of the PPSA; and
(ii) The Buyer’s rights referred to in Section 107(2)(a), (c), (d), (h), (i) and (j) of the PPSA
g) The buyer agrees to indemnify the Seller upon demand for all costs and expenses (including legal fees on a solicitor/client basis) incurred by the Seller –
(i) As a result of the occurrence of an event of default (including upon actual or attempted enforcement of any security interest granted to the Seller by the Buyer); and
(ii) In complying with any demand made under Section 162 of the PPSA.
h) On the request of the Seller the Buyer will promptly do all things (including signing any delivery docket and or invoice) and to provide all information necessary to enable the Seller by the Buyer, including the registration of a financing statement.
i) The sale of the Goods other than in the ordinary course of business of the Buyer will be in breach of this Agreement.
j) The security interest in the Goods created by this Agreement extends to the proceeds of dealing with the Goods in accordance with the PPSA.
k) The Buyer acknowledges that the Seller will register (and as appropriate register a renewal of) the security interest created by this Agreement in the PPSA register.
-
Trade Marks and Intellectual Property
The Buyer acknowledges that the Goods may include logo, trade mark or otherwise be the intellectual property of the manufacturer of the Goods and will not do anything which may be a breach of the intellectual property rights of the manufacturer and will indemnify the Seller from and against all claims which may be made against the Seller by the manufacturer or on behalf of the manufacturer arising out of any action taken by the Buyer.
-
Severability
If any provision of this Agreement is held invalid, unenforceable or illegal for any reason, this Agreement shall remain otherwise in full force apart from such provision, which shall be deemed deleted.
-
Governing Law
This agreement will be governed by and construed according to the laws of New Zealand and the Courts of New Zealand will have non-exclusive jurisdiction in any proceeding relating to it.
-
Disputes
a) If any party to this Agreement claims that a difference or dispute has arisen (“the Dispute”) under or in relation to this Agreement, the party raising the Dispute must give written notice to the other party specifying the nature of the Dispute;
b) On receipt of that notice by the other party, the parties must endeavour in good faith to resolve the Dispute expeditiously using informal dispute resolution techniques such as mediation, expert evaluation and determination agreed by them.
c) If the dispute remains unsolved after one calendar month, the parties agree to refer the Dispute for resolution to a single arbitrator to be appointed (in the absence of agreement between the partied) by the President of the New Zealand Law Society.
d) In the event the Dispute is referred for arbitration in accordance with clause (c) above,
(i) The costs of arbitration will be shared equally between the parties.
(ii) The decision of the arbitrator shall be final and binding except that the parties reserve the right to appeal to the High Court of New Zealand on any point of law arising out of the arbitration decision; and
(iii) The provisions of the Arbitration Act 1996 shall apply.
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