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CITI HEAT & COOL LIMITED CONDITIONS OF TRADE

  1. Application of these Conditions

These conditions of trade apply to all goods and services supplied to the Customer by Citi Heat Cool Limited (“the Company”) except as agreed otherwise in writing. Any order made by the Customer after the delivery of these terms (whether by mail, email or facsimile) to the Customer is deemed to be an acceptance of these conditions of trade.

  1. Entire Agreement

These conditions of trade and any associated quotation (the “Agreement”) constitute the entire agreement between the Company and the Customer for the supply of the goods and/or services specified and the Customer acknowledges that they shall apply to the exclusion of any standard terms or conditions of trade of the Customer.

  1. Price

(a) The Company’s prices are subject to alteration without notice and the Price payable by the Customer for the goods and services ordered shall be the Price ruling at the date the goods and services are received by the Customer. The Company reserves the right to vary the price unless it is subject to a quotation specified as a fixed price.

(b) Quotations are valid for 30 days from the date of quotation unless otherwise stated.

(c) Any prices provided by the Company to the Customer are based on the cost of materials, labour, rates of exchange, insurance, freight, duty, taxes and other cost items over which the Company has no control. Any increase in costs to the Company prior to delivery caused by these factors will be payable by the Customer. To avoid such price increases the Customer may be asked to purchase materials in advance to obtain quoted rates prior to price increase.

(d) All prices exclude Goods and Services Tax, unless otherwise stated.

  1. Performance

(a) Performance of the Agreement by the Company is subject to the Company being able to obtain all supplies, licences, permits and the like necessary to enable the Company to both obtain any goods or materials required and complete the services required.

(b) In the event this Agreement is cancelled prior to delivery for any reason the Company reserves the right to invoice the Customer for costs incurred by the Company up to the date of cancellation.

  1. Delivery, Risk and Title

(a) Delivery, unless otherwise specified in writing, is to be made at the Customer’s premises.

(b) Dates of delivery shall not be of the essence of the Agreement and the Company shall not be liable for any loss, expense, injury, damage or claim whatsoever or howsoever arising resulting from any delay in delivery howsoever such delay is caused.

(c) The risk in the Agreement goods or services supplied shall pass to the Customer upon delivery.

(d) Ownership in the Agreement goods supplied shall not pass upon delivery and is expressly retained by the Company until such time as the Customer has discharged all outstanding indebtedness whatsoever to the Company whether in respect of the goods supplied or in respect of any other goods or services provided by the Company to the Customer.

  1. Warranty

(a) In the event any goods or part of any goods supplied by the Company prove defective during the warranty period by reason only of defective materials or defective workmanship of the Company, and subject to the limitations of liability below, the Company may at its sole discretion either: (i) repair or replace any part of the goods supplied by the Company; or (ii) refund the Customer compensation determined by the Company at its sole discretion for the reduction in value of the faulty goods as supplied.

(b) If any defect becomes evident within the warranty period in any part of the goods supplied not caused by the Company, the Company will endeavour to obtain for the Customer the benefit of any guarantee or warranty given by the manufacturer of such part but shall otherwise be under no liability whatsoever in respect of the goods supplied.

(c) In this context “warranty period” means the six (6) months commencing on the date of delivery unless specified in the quotation.

(d) Where the Customer is not in business or trade, nothing in this clause shall limit the Customer’s rights under the Consumer Guarantees Act 1992, the implied warranties for building work in relation to household units contained in Section 362(i) of the Building Act 2004 and the application of sections 362(j) and 362(k) apply accordingly in respect of proceedings in relation to such warranties.

  1. Limitation of Liability

(a) the Company shall not be liable in any event: (i) if the goods have not been used, operated and maintained in a proper or workmanlike manner and in accordance with any instructions or advice given by the Company or the manufacturer of any parts of the goods; or. (ii) replacing or repairing any part of the Job which the Customer is entitled to reject; or (iii) refunding the price of the Job which the Customer is entitled to reject.

(b) in the event of the Company incurring any expenditure in the repair or replacement of any part of any goods as a result of any failure on the part of the Customer then the Company shall be entitled to charge for such remedial work or investigatory work based upon the Company’s standard charges then prevailing for customer work; or (i) the work has been altered or repaired by any person other than the Company; or (ii) if the work has been subject to excessive wear or tear, or improper or abnormal use or storage; or (iii) 12 months of completion of the job; or (iv) 7 days after the alleged defect became apparent; or (v) The Company is given a reasonable opportunity to investigate the claim.

(c) The Company shall incur no liability unless the Customer notifies the Company within seven (7) days of the alleged defect becoming apparent and unless the Customer provides the Company with all information requested concerning the defect, the goods, and their use, installation, maintenance and storage since delivery as the Company may reasonably require.

(d) In no circumstances whatsoever shall the Company be liable for damage, injury or loss of any kind whatsoever to any property or persons or animals or produce howsoever caused arising from fault or defect in the contract goods or arising by way of consequential loss or damage, including loss of profits, revenue, income, anticipated savings, use, production, any loss of business, contracts or opportunities, or any special, indirect or consequential loss or damage.

(e) Save as aforesaid the Company shall be under no liability to the Customer in respect of the description, quality, fitness for any purpose of the contract goods and all terms, conditions and warranties in respect of such description, quality or fitness whether statutory or otherwise and whether express or implied are hereby expressly excluded.

(f) Where the work is acquired by the Customer for business purposes, the warranties continued in the Consumer Guarantees Act 1992 are specifically excluded.

  1. Payment

Unless otherwise provided for in this Agreement the Customer shall pay the Agreement price of the Agreement goods and any other costs, charges or expenses provided for by these conditions within 5 working days of delivery of the goods or for approved credit accounts with the Company by the 20th of the month following the month in which delivery is made. At any time before completion of the Agreement and as a condition precedent to the performance or further performance by the Company of the Agreement the Company may request the Customer to produce evidence in a form and nature acceptable to the Company of the Customer’s ability to pay all moneys which may be or become due to the Company under the Agreement and if the Customer shall fail to produce such evidence in accordance with such request the Customer shall be deemed to have made default under the Agreement and the Company shall be entitled (but without prejudice to any other remedy it may have) to rescind the Agreement.

  1. Interest

In the event that the Customer does not pay any sum on due date, the Customer, being in default, shall pay upon demand to the Company (as liquidated damages) interest at the rate of 2% per annum above the then current overdraft rate being charged by the Company’s bank on all overdue amounts calculated monthly on the total unpaid balance including any interest previously charged from the due date until the actual date of payment. The charging of interest does not imply the granting of any extension of credit.

  1. PPSR

(a) The Customer acknowledges and agrees that until payment in full of any indebtedness of the Customer to the Company has been received by the Company the Agreement constitutes a security interest in the goods supplied by the Company to the Customer for the purposes of the PPSA as security for payment by the Customer of all amounts due under the Agreement, including any future amounts. The security interest extends to proceeds of sale of the goods and to any goods into which the goods are incorporated or co-mingled.

(b) The Customer agrees to promptly execute and deliver to the Company all assignments, transfers and other agreements and documents and do anything else which the Company may deem appropriate to perfect the Company’s security interest over the Customer, or obtain the priority required by the Company or register (and renew registration) a financing statement for a security interest in favour of the Company.

(c) To the extent that Part 9 of the PPSA applies, the Customer agrees that the provisions of sections 114(1)(a), 120, 122, 133 and 134 of the PPSA which are for the Customer’s benefit, or place any obligations on the Company in the Customer’s favour, will not apply; and where the Company has rights in addition to those in Part 9 of the PPSA, those rights will continue to apply.

(d) To the extent that Part 9 of the PPSA applies, without limiting anything in the previous paragraph, the Customer hereby waives its rights under sections 116, 120(2), 121, 125, 126, 127, 129 and 131 of the PPSA, and its rights to receive a copy of a verification statement under section 148 of the PPSA in respect of any financing statement or financing change statement registered by the Company.

(e) The Customer agrees to treat the security interest in the goods as a continuing and subsisting security with priority over a registered general security interest and any unsecured creditors, regardless of whether the products have become fixtures at any time before payment has been made for them.

(f) If the Customer ceases trading, is placed in receivership or liquidation, becomes bankrupt or if the Customer’s goods are taken in execution, or if the Customer compounds or makes an arrangement with the Customer’s creditors then, in addition to, and without prejudice to, any other rights or remedies the Company might have, the following shall occur: (i) All unpaid accounts (including interest costs) in respect of goods and services supplied by the Company to the Customer shall become immediately due and payable, and (ii) The provisions relating to the Company’s right of entry, repossession and recovery of goods shall apply.

(g) Any costs incurred by the Company in exercise of the powers hereunder whether relating to the repossession, storage or resale of the contract goods or otherwise (including legal costs as between the Company and its Solicitors) shall be immediately due and payable by the Customer to the Company.

  1. Law

This contract shall be governed by and must be construed in accordance with the laws of New Zealand. The venue of any proceedings shall be in Nelson, New Zealand. However, the Company may seek a restraining order or injunction in any court having immediate jurisdiction over the services provided by the Company.

  1. Notices

(a) A notice under this Agreement must be in writing and may be given to the addressee by facsimile at a number and/or by electronic mail at an address provided by the addressee for that purpose. By providing such an address, the indicating party consents that notices, approvals, and consents can be transmitted to them electronically as long as the method of electronic communication creates a record that can be retained, retrieved, and reviewed by the recipient and can be directly reproduced on paper form through an automated process.

(b) Notices, approvals, and consent shall be deemed to have been received by the addressee at the earlier of when delivered to the addressee, when an acknowledgement of receipt is signed by the addressee or a duly authorised agent of addressee, when sent to the addressee by facsimile transmission at a telephone number or by electronic mail when sent to an address, provided by the addressee to the other party or parties, five (5) days after deposited with a recognised delivery service or post, when properly addressed to the addressee.

(c) Any party to this Agreement can change his, her, or its address by giving written notice of the change to the other party as provided above.

  1. Privacy Act

(a) The Customer authorises the Company or the Company’s agent to: (i) access, collect, retain and use any information about the Customer; (including any overdue fines balance information held by the Ministry of Justice) for the purpose of assessing the Customer’s creditworthiness; or for the purpose of marketing products and services to the Customer and (ii) 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.

(b) Where the Customer is an individual the authorities under this clause are authorities or consents for the purposes of the Privacy Act 1993.

(c) 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.

  1. Retentions, Variations and Progress Claims

(a) The Customer must make known to the Company at time of seeking a quote, the percentage of any retention the Customer intends to hold back during the course of a Job.

(b) Retentions must be agreed by the Company in writing prior to the Customer confirming acceptance of quoted work or booking a Job.

(c) Any variation to the goods or services to be supplied must be agreed in writing with the Company prior to delivery, with the costs of the variation payable by the Customer. Variations will be invoiced at the end of the month in which they were carried out and due for payment as per the payment terms.

(d) For a Job extending over more than one month, progress payments will be invoiced at the end of the month and will be payable by the due date shown on the invoice unless agreed otherwise in writing.

  1. Disputes

(a) The Customer must advise the Company of any dispute relating to their invoice within 10 working days of receiving the invoice. If the Company is not advised of a dispute within 10 working days of the Customer receiving the invoice, then the Customer is deemed to have accepted that invoice.

(b) In the event that any part of an invoice is disputed the amount not in dispute will be paid promptly in accordance with the payment terms. Thereafter, the parties agree to use their best endeavours to promptly resolve any dispute or difference between them.

(c) Any dispute not resolved between the parties may be submitted for resolution under the processes set out in the Construction Contracts Act 2002.

  1. Acknowledgement

The Customer acknowledges that the Company has supplied (if necessary), and the client has received, the prescribed disclosure information and checklist as required by Section 362(d) of the Building Act 2004.

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