- 1. Definitions
1.1 “SARAC” means South Auckland Refrigeration & Air Conditioning Limited its successors and assigns or any person acting on behalf of and with the authority of South Auckland Refrigeration & Air Conditioning Limited.
1.2 “Client” means the person/s buying the Goods as specified in any invoice, document or order, and if there is more than one Client is a reference to each Client jointly and severally.
1.3 “Goods” means all Goods or Services supplied by SARAC to the Client at the Client’s request from time to time (where the context so permits the terms ‘Goods’ or ‘Services’ shall be interchangeable for the other).
1.4 “Price” means the Price payable for the Goods as agreed between SARAC and the Client in accordance with clause 4 below.
- 2. Acceptance
2.1 The Client is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Client places an order for or accepts delivery of the Goods.
2.2 These terms and conditions may only be amended with SARAC’s consent in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the Client and SARAC.
- 3. Change in Control
3.1 The Client shall give SARAC not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client and/or any other change in the Client’s details (including but not limited to, changes in the Client’s name, address, contact phone or fax number/s, or business practice). The Client shall be liable for any loss incurred by SARAC as a result of the Client’s failure to comply with this clause.
- 4. Price and Payment
4.1 At SARAC’s sole discretion the Price shall be either:
(a) as indicated on any invoice provided by SARAC to the Client; or
(b) SARAC’s quoted price (subject to clause 4.2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.
4.2 SARAC 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, availability of machinery, safety considerations, prerequisite work by any third party not being completed, change of design, hidden pipes and wiring in walls etc) which are only discovered on commencement of the Services; or
(d) in the event of increases to SARAC in the cost of labour or materials which are beyond SARAC’s control.
4.3 At SARAC’s sole discretion a non-refundable deposit may be required.
4.4 Time for payment for the Goods being of the essence, the Price will be payable by the Client on the date/s determined by SARAC, which may be:
(a) on delivery of the Goods;
(b) for certain approved Clients, due twenty (20) days following the end of the month in which a statement is posted to the Client’s address or address for notices;
(c) the date specified on any invoice or other form as being the date for payment; or
(d) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Client by SARAC.
4.5 Payment may be made by cash, cheque, bank cheque, electronic/on-line banking, or by any other method as agreed to between the Client and SARAC.
4.6 Unless otherwise stated the Price does not include GST. In addition to the Price the Client must pay to SARAC an amount equal to any GST SARAC must pay for any supply by SARAC under this or any other agreement for the sale of the Goods. The Client must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Client pays the Price. In addition the Client 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.
- 5. Delivery of Goods
5.1 Delivery (“Delivery”) of the Goods is taken to occur at the time that SARAC (or SARAC’s nominated carrier) delivers the Goods to the Client’s nominated address even if the Client is not present at the address.
5.2 At SARAC’s sole discretion the cost of delivery is in addition to the Price.
5.3 Subject to clause 5.4 it is SARAC’s responsibility to ensure that the Services start as soon as it is reasonably possible.
5.4 The Services commencement date will be put back and/or the completion date extended by whatever time is reasonable in the event that SARAC claims an extension of time (by giving the Client written notice) where completion is delayed by an event beyond SARAC’s control, including but not limited to any failure by the Client to:
(a) make a selection; or
(b) have the site ready for the Services; or
(c) notify SARAC that the site is ready.
5.5 Any time or date given by SARAC to the Client is an estimate only. The Client must still accept delivery of the Goods even if late and SARAC will not be liable for any loss or damage incurred by the Client as a result of the delivery being late.
- 6. Risk
6.1 Risk of damage to or loss of the Goods passes to the Client on Delivery and the Client must insure the Goods on or before Delivery.
6.2 If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Client, SARAC is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by SARAC is sufficient evidence of SARAC’s rights to receive the insurance proceeds without the need for any person dealing with SARAC to make further enquiries.
6.3 The Client 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 roofing) that SARAC, its employees or SARAC’s reasonably form the opinion that the Client’s premises is not safe for the installation of Goods to proceed then SARAC shall be entitled to delay installation of the Goods (in accordance with the provisions of clause 5.4 above) until SARAC is satisfied that it is safe for the installation to proceed.
6.4 The Client acknowledges that SARAC is only responsible for parts that are replaced by SARAC and that in the event that other parts/Goods, subsequently fail, the Client agrees to indemnify SARAC against any loss or damage to the Goods, or caused by the Goods, or any part thereof howsoever arising.
6.5 Whilst the final location of the condensing unit is at the discretion of the Client, a charge will apply as a variation as per clause 4.2, if the Client requests the unit to not be located adjacent to the external wall, due to the underground piping required.
6.6 The final location of the wall, window or floor unit must be determined on site by the Client.
6.7 SARAC shall upon installation ensure that all installed Goods meet current industry standards applicable to noise levels, however SARAC cannot guarantee that noise levels will remain constant post installation as the Goods may be impacted by many factors such as the weather, lack of maintenance, tampering etc.
6.8 In the event that any of the equipment needs to be relocated due to complaints from neighbours or local authorities, then the Client shall be responsible for any and all costs involved.
6.9 The Client acknowledges and agrees that it is their responsibility to insure any equipment partly or completely installed on site, against theft or damage.
6.10 In the event that the electrical wiring is required to be re-positioned at the request of any third party contracted by the Client then the Client agrees to notify SARAC immediately upon any proposed changes. The Client agrees to indemnify SARAC against any additional costs incurred with such a relocation of electrical wiring. All such variances shall be invoiced in accordance with clause 4.2.
- 7. Access
7.1 The Client shall ensure that SARAC has clear and free access to the work site at all times to enable them to undertake the Services. SARAC 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 SARAC.
- 8. Underground Locations
8.1 Prior to SARAC commencing any work the Client must advise SARAC of the precise location of all underground services on the site and clearly mark the same. The underground mains & services the Client 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.
8.2 Whilst SARAC will take all care to avoid damage to any underground services the Client agrees to indemnify SARAC 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 8.1.
- 9. Title
9.1 SARAC and the Client agree that ownership of the Goods shall not pass until:
(a) the Client has paid SARAC all amounts owing to SARAC; and
(b) the Client has met all of its other obligations to SARAC.
9.2 Receipt by SARAC 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.
9.3 It is further agreed that:
(a) until ownership of the Goods passes to the Client in accordance with clause 9.1 that the Client is only a bailee of the Goods and must return the Goods to SARAC on request.
(b) the Client holds the benefit of the Client’s insurance of the Goods on trust for SARAC and must pay to SARAC the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed.
(c) the Client 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 Client sells, disposes or parts with possession of the Goods then the Client must hold the proceeds of any such act on trust for SARAC and must pay or deliver the proceeds to SARAC on demand.
(d) the Client should not convert or process the Goods or intermix them with other goods but if the Client does so then the Client holds the resulting product on trust for the benefit of SARAC and must sell, dispose of or return the resulting product to SARAC as it so directs.
(e) the Client irrevocably authorises SARAC to enter any premises where SARAC believes the Goods are kept and recover possession of the Goods.
(f) SARAC may recover possession of any Goods in transit whether or not delivery has occurred.
(g) the Client 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 SARAC.
(h) SARAC may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Client.
- 10. Personal Property Securities Act 1999 (“PPSA”)
10.1 Upon assenting to these terms and conditions in writing the Client 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 previously supplied by SARAC to the Client (if any) and all Goods that will be supplied in the future by SARAC to the Client.
10.2 The Client 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 SARAC may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register;
(b) indemnify, and upon demand reimburse, SARAC 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 a financing change statement or a change demand without the prior written consent of SARAC; and
(d) immediately advise SARAC of any material change in its business practices of selling the Goods which would result in a change in the nature of proceeds derived from such sales.
10.3 SARAC and the Client agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms and conditions.
10.4 The Client waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA.
10.5 Unless otherwise agreed to in writing by SARAC, the Client waives its right to receive a verification statement in accordance with section 148 of the PPSA.
10.6 The Client shall unconditionally ratify any actions taken by SARAC under clauses 10.1 to 10.5.
- 11. Security and Charge
11.1 In consideration of SARAC agreeing to supply the Goods, the Client 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 Client either now or in the future, to secure the performance by the Client of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
11.2 The Client indemnifies SARAC from and against all SARAC’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising SARAC’s rights under this clause.
11.3 The Client irrevocably appoints SARAC and each director of SARAC as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 11 including, but not limited to, signing any document on the Client’s behalf.
- 12. Client’s Disclaimer
12.1 The Client hereby disclaims any right to rescind, or cancel any contract with SARAC or to sue for damages or to claim restitution arising out of any inadvertent misrepresentation made to the Client by SARAC and the Client acknowledges that the Goods are bought relying solely upon the Client’s skill and judgment.
- 13. Defects
13.1 The Client shall inspect the Goods on delivery and shall within three (3) days of delivery (time being of the essence) notify SARAC of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Client shall afford SARAC an opportunity to inspect the Goods within a reasonable time following delivery if the Client believes the Goods are defective in any way. If the Client shall fail to comply with these provisions the Goods shall be presumed to be free from any defect or damage. For defective Goods, which SARAC has agreed in writing that the Client is entitled to reject, SARAC’s liability is limited to either (at SARAC’s discretion) replacing the Goods or repairing the Goods.
- 14. Returns
14.1 Returns will only be accepted provided that:
(a) the Client has complied with the provisions of clause 13.1; and
(b) SARAC has agreed in writing to accept the return of the Goods; and
(c) the Goods are returned at the Client’s cost within seven (7) days of the delivery date; and
(d) SARAC 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.
14.2 SARAC will not accept the return of Goods for credit.
14.3 Non-stocklist items or Goods made to the Client’s specifications are under no circumstances acceptable for credit or return.
- 15. Warranty
15.1 For Goods not manufactured by SARAC, the warranty shall be the current warranty provided by the manufacturer of the Goods. SARAC 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.
15.2 To the extent permitted by statute, no warranty is given by SARAC as to the quality or suitability of the Goods for any purpose and any implied warranty, is expressly excluded. SARAC shall not be responsible for any loss or damage to the Goods, or caused by the Goods, or any part thereof however arising.
- 16. Consumer Guarantees Act 1993
16.1 If the Client is acquiring Goods for the purposes of a trade or business, the Client acknowledges that the provisions of the Consumer Guarantees Act 1993 do not apply to the supply of Goods by SARAC to the Client.
- 17. Intellectual Property
17.1 Where SARAC has designed, drawn or developed Goods for the Client, then the copyright in any designs and drawings and documents shall remain the property of SARAC.
17.2 The Client warrants that all designs, specifications or instructions given to SARAC will not cause SARAC to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify SARAC against any action taken by a third party against SARAC in respect of any such infringement.
17.3 The Client agrees that SARAC may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings or Goods which SARAC has created for the Client.
- 18. Default and Consequences of Default
18.1 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 SARAC’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
18.2 If the Client owes SARAC any money the Client shall indemnify SARAC from and against all costs and disbursements incurred by SARAC in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, SARAC’s collection agency costs, and bank dishonour fees).
18.3 Without prejudice to any other remedies SARAC may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions SARAC may suspend or terminate the supply of Goods to the Client. SARAC will not be liable to the Client for any loss or damage the Client suffers because SARAC has exercised its rights under this clause.
18.4 Without prejudice to SARAC’s other remedies at law SARAC shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to SARAC shall, whether or not due for payment, become immediately payable if:
(a) any money payable to SARAC becomes overdue, or in SARAC’s opinion the Client will be unable to make a payment when it falls due;
(b) the Client becomes insolvent, 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
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.
- 19. Compliance with Laws
19.1 The Client and SARAC 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.
19.2 The Client shall obtain (at the expense of the Client) all licenses and approvals that may be required for the Services.
19.3 The Client agrees that the site will comply with any occupational health and safety laws relating to building/construction sites and any other relevant safety standards or legislation.
- 20. Cancellation
20.1 SARAC may cancel any contract to which these terms and conditions apply or cancel delivery of Goods at any time before the Goods are delivered by giving written notice to the Client. On giving such notice SARAC shall repay to the Client any money paid by the Client for the Goods. SARAC shall not be liable for any loss or damage whatsoever arising from such cancellation.
20.2 In the event that the Client cancels delivery of Goods the Client shall be liable for any and all loss incurred (whether direct or indirect) by SARAC as a direct result of the cancellation (including, but not limited to, any loss of profits).
20.3 Cancellation of orders for Goods made to the Client’s specifications, or for non-stocklist items, will definitely not be accepted once production has commenced, or an order has been placed.
- 21. Dispute Resolution
21.1 All disputes and differences between the Client and SARAC touching and concerning this agreement shall be referred to arbitration under a single arbitrator agreed upon by both parties, or failing agreement, by two arbitrators (one to be appointed by each party) and their umpire (appointed by them prior to arbitration), such arbitration to be carried out in accordance with provisions of the Arbitration Act 1996.
- 22. Privacy Act 1993
22.1 The Client authorises SARAC or SARAC’s agent to:
(a) access, collect, retain and use any information about the Client;
(i) (including any overdue fines balance information held by the Ministry of Justice) for the purpose of assessing the Client’s creditworthiness; or
(ii) for the purpose of marketing products and services to the Client.
(b) disclose information about the Client, whether collected by SARAC from the Client directly or obtained by SARAC 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 Client.
22.2 Where the Client is an individual the authorities under clause 22.1 are authorities or consents for the purposes of the Privacy Act 1993.
22.3 The Client shall have the right to request SARAC for a copy of the information about the Client retained by SARAC and the right to request SARAC to correct any incorrect information about the Client held by SARAC.
- 23. Unpaid Seller’s Rights
23.1 Where the Client has left any item with SARAC for repair, modification, exchange or for SARAC to perform any other service in relation to the item and SARAC has not received or been tendered the whole of any moneys owing to it by the Client, SARAC shall have, until all moneys owing to SARAC are paid:
(a) a lien on the item; and
(b) the right to retain or sell the item, such sale to be undertaken in accordance with any legislation applicable to the sale or disposal of uncollected goods.
23.2 The lien of SARAC shall continue despite the commencement of proceedings, or judgment for any moneys owing to SARAC having been obtained against the Client.
- 24. General
24.1 The failure by SARAC to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect SARAC’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.
24.2 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 Manukau Courts of New Zealand.
24.3 SARAC shall be under no liability whatsoever to the Client for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by SARAC of these terms and conditions (alternatively SARAC’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Goods).
24.4 The Client shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Client by SARAC nor to withhold payment of any invoice because part of that invoice is in dispute.
24.5 SARAC may license or sub-contract all or any part of its rights and obligations without the Client’s consent.
24.6 The Client agrees that SARAC may amend these terms and conditions at any time. If SARAC makes a change to these terms and conditions, then that change will take effect from the date on which SARAC notifies the Client of such change. The Client will be taken to have accepted such changes if the Client makes a further request for SARAC to provide Goods to the Client.
24.7 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.
24.8 The Client warrants that it has the power to enter into this agreement and has obtained all necessary authorisations to allow it to do so, it is not insolvent and that this agreement creates binding and valid legal obligations on it.