TERMS AND CONDITIONS

 
TERMS AND CONDITIONS OF TRADE

1.DEFINITIONS

1.1 “Company” means P A Phillips Electrical Limited and it’s permitted assigns and successors or any person acting on behalf of and with the authority of P A Phillips Electrical Limited.
1.2 “Customer” means the customer (or any other person acting on behalf of and with the authority of the customer) purchasing Products and/or Services from the Company.
1.3 “Products” means goods, accessories, components and/or materials provided by the Company to the Customer.
1.4 “Services” means all Services supplied by the Company to the Customer and includes any recommendations or advice, and where so permitted shall include any supply of Products as defined above. 
1.5 “Price” means the price payable for the Products and Services as agreed between the Company and the Customer in accordance with clause 8 in these Terms and Conditions of Trade.

2.ACCEPTANCE

2.1 Any instructions received by the Company from the Customer for the supply of Products and/or Services and the Customer’s acceptance of Products and/or Services supplied by the Company shall indicate acceptance of these Terms and Conditions.
2.2 Upon acceptance of these Terms and Conditions by the Customer the Terms and Conditions are binding and can only be amended with the written consent of the Company.
2.3 Where more than one Customer has entered into this agreement the Customers shall be jointly and severally liable for all payments of the Price.
2.4 Upon acceptance of these Terms and Conditions the Customer agrees to: 
   (a) provide the Company with all necessary plans, specifications, services and amenities, so as to allow the Company to carry out the Services.
   (b) provide access to the location and ensure to the Company’s reasonable satisfaction that the location remains in a state and condition that is safe for the Company.
   (c) Ensure the location complies with all necessary bylaws and restrictions and is structurally sound (in accordance with all legislation governing safety in the workplace).
   
3.LIABILITY

3.1 The Company shall not be liable for any claims, demands, losses, damages, costs and expenses howsoever caused or arising should the premises or equipment be unable to accommodate the installation or Products.
3.2 The Company shall not be liable for any loss or damage to the site unless due to the negligence of the Company.
3.3 The Company shall not be liable for any loss of profits or any consequential, indirect or special loss, damage or injury of any kind whatsoever suffered by you arising directly or indirectly form our provision or Products and/or Services.

4.WARRANTY

4.1 Subject to the conditions of warranty set out in Clause 4.2 the Company warrants that if any defect in any workmanship of the Company becomes apparent and is reported to the Company within three (3) months of the date of delivery, then the Company will either replace or remedy the workmanship (at the Company’s sole discretion).
4.2 The conditions applicable to the warranty given by Clause 4.1 are:
   (a) 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 Customer to properly maintain any Products; or
         (ii) failure on the part of the Customer to follow any instructions or guidelines provided by the Company; or
         (iii) any use of any Products other than for any application specified on a quote or order form; or
         (iv) the continued use of any Products 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.
   (b) the warranty shall cease and the Company shall thereafter in no circumstances be liable under the terms of the warranty if the workmanship is repaired, altered or overhauled without the Company’s consent.
   (c) in respect of all claims the Company shall not be liable to compensate the Customer for any delay in either replacing or remedying the workmanship or in properly assessing the Customer’s claim.
4.3 For Products not manufactured by the Company, the warranty shall be the current warranty provided by the manufacturer of the Products. The Company 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 Products.
4.4 In the case of second hand Products, the Customer acknowledges that he has had full opportunity to inspect the same and that he accepts the same with all faults and that no warranty is given by the Company as to the quality or suitability for any purpose and any implied warranty, statutory or otherwise, is expressly excluded. The Company shall not be responsible for any loss or damage to the Products, or caused by the Products, or any part thereof however arising.

5.DELAY

5.1 Any time for completion of the Services or delivery of Products shall be approximate only and shall not be deemed to be of the essence of these Terms and Conditions.
5.2 While we will use all reasonable endeavours to ensure that the Service and/or Products are provided by any agreed date, no penalty will be imposed on us nor will a reduction in the Price payable be available on the grounds of our failure to meet a specified completion date.
5.3 If the provision of Services is delayed by reason of or as a result of any act, omission, default or request by or on behalf of the Customer, we may, without prejudice to our other rights and remedies, require payment by the Customer of such portion of the Price as represents the extent to which we have performed the Services up to the date such payment is required together with any expenses or additional costs involved by us as a result of such delay. In the event of such delay continuing beyond a reasonable time, we may, without prejudice to our other remedies, terminate these Terms and Conditions.

6.DELIVERY AND RISK

6.1 Irrespective of whether ownership and title in the Products remains vested in the Company, risk in the Products shall pass to the Customer upon delivery. The Customer is responsible for all insurance of all Products from the time of delivery.
6.2 Delivery of the Products to a third party nominated by the Customer is deemed to be delivery to the Customer for the purposes of this agreement.
6.3 If any of the Products are damaged or destroyed following delivery but prior to ownership passing to the Customer, the Company is entitled to receive all insurance proceeds payable for the Products. The production of these Terms and Conditions by the Company is sufficient evidence of the Company’s rights to receive the insurance proceeds without the need for any person dealing with the Company to make further enquiries.
6.4 Where the Company is required to install the Products, the Customer warrants that the structure of the premises or equipment in or upon which these Products are to be installed or erected is sound and will sustain the installation and work incidental thereto and the Company shall not be liable for any claims, demands, losses, damages, costs and expenses howsoever caused or arising should the premises or equipment be unable to accommodate the installation.
6.5 Risk of loss of a Product will pass to the Customer upon delivery and/or completion of Service.

7. QUOTES

7.1 The Company reserves the right to change the Price in the event of a variation to the Company’s quotation. Any variation from the plan of scheduled works or specifications (including, but not limited to, any variation as a result of additional works required due to hidden or unidentifiable difficulties or as a result of increases to the Company in the cost of materials and labour) will be charged for on the basis of the Company’s quotation and will be shown as variations on the invoice.  Payment for all variations must be made in full at their time of completion.
7.2 Any Quote is open for acceptance for 30 days after it is dated unless withdrawn by us prior to acceptance.

8.PRICE AND PAYMENT

8.1 At the Company’s sole discretion the Price shall be either:
   (a) as indicated on invoices provided by the Company to the Customer in respect of Products and/or Services supplied; or
   (b) the Company’s quoted Price (subject to clause 7.1) which shall be binding upon the Company provided that the Customer shall accept the Company’s quotation in writing within thirty (30) days.
8.2 The Company may submit detailed progress payment claims in accordance with the Company’s specified payment schedule. Such payment claims may include the reasonable value of authorised variations and the value of any materials delivered to the site but not yet installed.
8.3 The Company will issue an invoice for the Products and/or Services provided in the previous month. Each invoice will:
   (a) be in the form of a valid tax invoice for GST purposes;
   (b) describe in adequate detail the Products and/or Services that are the subject of the invoice.
8.4 The Customer shall pay the Company the amount payable in respect of each invoice issued under clause 8.3 no later than the 20th day of the month following the month to which the invoice relates.
8.5 If the Customer fails to make payment by the due date the Customer shall pay interest on the amount outstanding at the rate of 5% above the Company’s bank’s current variable lending rate from the due date for payment until payment is made. The Customer shall pay all costs, expenses, charges and debt collection costs, including legal costs (on a solicitor/client basis) that are incurred by the Company in recovering any money owing to the Company by the Customer.

9.DEFECTIVE PRODUCTS

9.1 The Customer shall inspect the Products on delivery and/or completion and shall within seven (7) days of delivery and/or completion notify the Company of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. 
9.2 The Customer shall afford the Company an opportunity to inspect the Products within a reasonable time following delivery and/or completion if the Customer believes the Products are defective in any way.  
9.3 If the Customer shall fail to comply with clauses 9.1 and 9.2 of these terms and conditions, the Products shall be presumed to be free from any defect or damage. 
9.4 For defective Products, which the Company has agreed in writing that the Customer is entitled to reject, the Company’s liability is limited to either (at the Company’s discretion) replacing the Products or repairing the Products.
9.5 Products will not be accepted for return other than in accordance with this clause 9.

10.INTELLECTUAL PROPERTY

10.1 All of the trademarks, patents, copyright, designs (including rights of drawings, calculations, models, samples, descriptions, figures, dimension specifications and the like) or other intellectual property rights (whether or not registered) in respect of the Products and/or Services (collectively “Intellectual Property”) remain the Company’s property notwithstanding the sale of the Goods and the provision of the Services to the Customer. 10.2 The Customer may not use, reverse engineer, remove, interfere with or alter the Intellectual Property in any way. 
10.3 Intellectual Property owned by the Company may not be copied, reproduced, distributed, modified, published, uploaded, posted, or transmitted in any way without the Company’s prior written consent.
10.4 The Customer acknowledges that it is aware that any breach of this clause 10 may result in the Company suffering damage. The Customer indemnifies the Company against all losses, damages, expenses and legal costs (including on a solicitor and client basis) that the Company may reasonably sustain or incur as a result, whether directly or indirectly, of any breach by the Customer of the provisions of this clause 10.
10.5 This clause 10 survives termination of this agreement.

11.PROPERTY

11.1 The Customer shall always be able to identify the Products from any other Products that may be in the Customers possession and the particular Products to which any invoice relates. 
11.2 Title to the Products shall remain with the Company until there are no longer any amounts owing to the Company by the Customer.
11.3 Should the Customer fail to comply with any term of these Terms and Conditions or any other agreement between the Company and the Customer, the Company may, in addition to any other rights and remedies either of them may have at law (including under any statute), enter any land or building owned, occupied, or used by the Customer to search for and re-take possession of the Products. 

12.PERSONAL PROPERTY SECURITIES ACT 1999 (“PPSA”)

12.1 Upon assenting to these terms and conditions in writing the Customer 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 Products previously supplied by the Company to the Customer (if any) and all Products that will be supplied in the future by the Company to the Customer.
12.2 The Customer 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 the Company may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register;
   (b) indemnify, and upon demand reimburse, the Company for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register or releasing any Products charged thereby;
   (c) not register a financing change statement or a change demand without the prior written consent of the Company; and
   (d) immediately advise the Company of any material change in its business practices of selling the Products which would result in a change in the nature of proceeds derived from such sales.
12.3 The Company and the Customer agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms and conditions.
12.4 The Customer waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA.
12.5 Unless otherwise agreed to in writing by the Company, the Customer waives its right to receive a verification statement in accordance with section 148 of the PPSA.
12.6 The Customer shall unconditionally ratify any actions taken by the Seller under clauses 12.1 to 12.5.

13.HIDDEN MAINS AND SERVICES

13.1 Prior to the Company commencing any work the Customer must advise the Company of the precise location of all hidden services on the site and clearly mark the same. The hidden mains & services the Customer 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.
13.2 Whilst the Company will take all care to avoid damage to any hidden services the Customer agrees to indemnify the Company 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 13.1.

14.CONSTRUCTION CONTRACTS ACT 2002

14.1 The Company may serve the Customer with payment claims under the Construction Contracts Act 2002.  If this occurs, the Company shall also provide the Customer with information which sets out the Customers rights and obligations under the Construction Contracts Act 2002.

15.TERMINATION

15.1 The Company may terminate any contract to which these terms and conditions apply or terminate delivery of Products at any time before the Products are delivered by giving written notice to the Customer. On giving such notice the Company shall repay to the Customer any sums paid in respect of the Price. The Company shall not be liable for any loss or damage whatsoever arising from such termination.
15.2 In the event that the Customer terminates delivery of the Products, the Customer shall be liable for any loss incurred by the Company (including, but not limited to, any loss of profits) up to the time of termination.
15.3 Termination of orders for Products made to the Customer’s specifications or non-stocklist items will definitely not be accepted, once production has commenced.

16. CUSTOMER’S OBLIGATIONS

16.1 The Customer must provide the Company with reasonable cooperation in relation to the provision of the Products and/or Services and promptly respond to any reasonable requests for information made by us in relation to the Products and/or Services.
 
17.ACKNOWLEDGEMENTS

17.1 The Customer acknowledges that all Products are sold “as is” but may be accompanied by their manufacturers’ standard warranties.
17.2 Any warranty provided by a manufacturer in respect of a Product may become void if the Customer damages the Product or does not use the Product as intended or instructed by the manufacturer.
17.3 The Company does not warrant or represent the suitability of a Product for your use
17.4 The Customer is responsible for ensuring that any instructions, recommended uses, applications and installation methods are followed and any cautions and/or warnings observed.
17.5 Where any recommendation or advice has been given by or on the Company’s behalf, the Company will not be responsible for the actual implementation of the recommendation or advice or the actions or performance of any party.

18. PRIVACY ACT 1993

18.1 The Customer authorises the Company to:
   (a) collect, retain and use any information about the Customer, for the purpose of assessing the Customer’s creditworthiness or marketing products and services to the Customer; and
   (b) disclose information about the Customer, whether collected by the Company from the Customer directly or obtained by the Company 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 Customer.
18.2 Where the Customer are an individual the authorities under clause 18.1 are authorities or consents for the purposes of the Privacy Act 1993.
18.3 The Customer shall have the right to request the Company for a copy of the information about the Customer retained by the Company and the right to request the Company to correct any incorrect information about the Customer held by the Company.

19.GENERAL

19.1 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.
19.2 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 New Zealand.
19.3 The Company shall be under no liability whatsoever to the Customer for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by the Company of these terms and conditions.
19.4 In the event of any breach of this contract by the Company the remedies of the Customer shall be limited to damages which under no circumstances shall exceed the Price of the Products and/or Services.
19.5 The Customer shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Customer by the Company nor to withhold payment of any invoice because part of that invoice is in dispute.
19.6 The Company may license or sub-contract all or any part of its rights and obligations without the Customer’s consent.
19.7 The Company reserves the right to review these terms and conditions at any time. If, following any such review, there is to be any change to these terms and conditions, then that change will take effect from the date on which the Company notifies the Customer of such change.
19.8 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, drought, storm or other event beyond the reasonable control of either party.
19.9 The failure by the Company to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect the Company’s right to subsequently enforce that provision.