ENERGY RECOVERY ELECTRICAL LIMITED T/A ERS ELECTRICAL
TERMS AND CONDITIONS OF SUPPLY OF GOODS AND SERVICES
1. Definitions
1.1 In these terms and conditions:
1.1.1 "contract" means the contract between the customer and the supplier for the provision of goods and services by the supplier of which these terms and conditions form part.
1.1.2 "customer" means the person to whom the goods and services are to be supplied;
1.1.3 "price" means:
1.1.3.1 where a quote has been given, the price for the work recorded in that quote;
1.1.3.2 otherwise, the supplier's usual charges for completing the work;
Plus any additional charges pursuant to these terms and conditions, plus GST.
1.1.4 "property" means the property, premises, site, or location where the goods are to be delivered and/or the services provided by the supplier.
1.1.5 "quote" means any quotation or estimate provided by or on behalf of the supplier.
1.1.6 "secured goods" means the goods referred to in clauses 9.5.1 – 9.5.3.
1.1.7 "supplier" means Energy Recovery Electrical Limited.
1.1.8 "work" includes all goods and services supplied or required to be supplied by the supplier in the course of performance of the contract.
2. Acceptance of Terms and Conditions
2.1 Contracting the supplier to carry out work or acceptance of a quote provided by the supplier constitutes acceptance by the customer of these terms and conditions.
3. Quotes and Estimates
3.1 All quotes are provided strictly on the following basis:
3.1.1 That the work to be completed to which the quote relates will proceed smoothly and there are no unforeseen difficulties with the work;
3.1.2 That where the quote is supplied without the supplier viewing the property, the quote is subject to the supplier viewing the property;
3.1.3 If additional work is required that could not be foreseen by the supplier at the time of providing the quote, then the supplier may at its option either cancel this contract or charge for such additional work at the supplier's usual rate.
4. Price
4.1 All goods and services are supplied at the price ruling at delivery date and the supplier reserves the rights to pass on to the customer any change in price after the date of any quote.
4.2 All prices as quoted are exclusive of goods and services tax unless otherwise stated.
5. Variations
5.1 No variations to the work originally contracted for shall be carried out without the agreement of both the customer and the supplier. Where the customer and the supplier have agreed to a variation the supplier will be entitled to charge for the work involved in such variation at the supplier's usual rate.
6. Payment
6.1 The customer shall pay the price as recorded in the quote or if no quote has been provided then such amount as the supplier shall determine (including any additional charges) by the 20th of the month (or within 7 days for individual clients) following the date of any invoice being issued by the supplier to the customer on completion of the work (as determined by the supplier).
6.2 If full payment is not made by the customer to the supplier in accordance with clause 6.1 above then the customer will be in default under this contract and the supplier may exercise all of the rights and remedies set out in this contract and otherwise available at law; and
6.2.1 the customer will pay interest on the default monies at the rate of 2% per month payable on a daily basis from the due date; and
6.2.2 the customer will be liable for all expenses (including solicitor - own client legal costs) incurred by the supplier as a result of the default; and
6.2.3 the supplier may withhold the further supply of goods and services.
7. Validity of Payment
7.1 The customer acknowledges that:
7.1.1 all payments made to the customer's account with the supplier are in the ordinary course of the customer's business; and
7.1.2 all payments to the customer's account are received by the supplier on the reasonably held belief that those payments are valid unless the customer advises otherwise in writing; and
7.1.3 by accepting any payments on or after the due date for payment the supplier has altered its position in reliance on the validity of those payments.
8. Liability on Claims
8.1 All claims against the supplier by the customer must be made within 10 working days of receipt of the supplier's invoice. The supplier reserves the right in its discretion to repair or replace goods or to credit the portion of the price applicable to the goods and services in respect of any claims accepted. The supplier will use its best endeavours to enforce any guarantees or warranties given by the manufacturer of goods supplied by the supplier.
8.2 The total liability of the supplier for any loss arising from any defect or non-compliance of the goods and services or any other breach by the supplier of its obligations under the contract will not in any circumstances exceed the price quoted by the supplier.
8.3 The supplier will not be liable for:
8.3.1 any consequential indirect or special damage or loss of any kind; or
8.3.2 any loss caused by the customer's servants, agents or any other persons whatsoever.
8.4 The customer will indemnify the supplier against any claim by the customer's servants, agents or other persons in respect of any loss arising from any defect in or non-compliance of the goods and services or in respect to any other matter whatsoever.
8.5 No warranty, condition or guarantee either express or implied is given by the supplier as to the quality, state or condition of any goods or as to their appearance, content or fitness for any particular purpose.
9. Ownership
9.1 Property in and ownership of the goods remains in the supplier until all money the customer owes to the supplier (whether under this contract or otherwise) has been paid in full or until property in the goods has passed to a third party in accordance with this clause.
9.2 The customer is a fiduciary for the supplier and has a fiduciary duty to account to the supplier for the goods. If the goods are sold the customer receives the proceeds of sale as a trustee for the supplier and will place the proceeds of the sale in a separate bank account for the benefit of the supplier. The customer has no right to assert against the supplier that it owns the goods or the proceeds of sale of the goods or any part of them.
9.3 If the supplier's goods become mixed with or incorporated in any other goods, property or materials in such a way that they cease to exist as separate goods, the original ownership of the new goods created by that mixing will vest immediately on creation in the supplier as co-owner of the new goods with the owner of any other materials which become part of the new goods. The co-ownership will be calculated proportionally to the value of the various component materials. The supplier's ownership of the new goods is otherwise on the same terms as the ownership of the goods originally supplied.
9.4 If the customer is in default under these terms and conditions or if one of the events described in clause 17.1.2 occurs, the customer will at the supplier's request:
9.4.1 re-deliver the goods to the supplier or do anything reasonably necessary to allow the supplier to retake possession of them; and
9.4.2 instruct any third parties who owe money in respect of the goods to pay that money directly to the supplier; and
9.4.3 make any records available which may assist the supplier to trace the proceeds of sale of the goods.
9.5 The customer hereby grants a security interest to the supplier in respect of:
9.5.1 the goods; and
9.5.2 any new goods in terms of clause 9.3; and
9.5.3 any other goods or personal property owned by the customer that have been installed or worked on by the supplier or which are required for the completion of the work.
("the secured goods")
9.6 The secured goods will not become fixtures on any land while the customer owes any money to the supplier, regardless of the degree to which and purpose for which they are fixed to the land (subject to the prior rights of any mortgagee of the land).
9.7 If the customer is in default under these terms and conditions or if one of the events described in clause 17.1.2 occurs, then the supplier will be entitled without notice to repossess the secured goods. The customer authorises the supplier or its representatives, servants, agents or employees to enter the property where the secured goods are situated for the purpose of repossession. The supplier will not be liable for any costs, expenses, damage, loss of any kind suffered by the customer as a result of repossession.
9.8 If the supplier takes possession of the secured goods or the proceeds and after deduction of all money the customer owes to the supplier (including any interest due and including any expense occurred by the supplier in enforcing its rights including legal expenses as between solicitor and client) there is a surplus, the supplier will pay that surplus to the customer.
10. Personal Property Securities Act 1999 ("PPSA")
10.1 The customer acknowledges the supplier's security interest in the secured goods ("collateral") supplied to the customer but not paid for under these terms and conditions.
10.2 The supplier reserves the right at its discretion to register a financing statement in respect of each category or goods supplied to the customer which comprises collateral. The supplier's costs of registering a financing statement or a financing change statement shall be paid by the customer and where applicable, debited by the supplier against the customer's account with the supplier. On the request by the supplier the customer shall promptly execute any documents and do anything else required by the supplier to ensure that the supplier's security interest in the collateral created by these terms and conditions constitutes a perfected security interest over the goods comprising collateral.
10.3 The customer shall not agree to allow any person to file a financing statement over the collateral without the prior consent of the supplier and shall notify the supplier immediately if it becomes aware of any person taking steps to file a financing statement against any of the collateral.
10.4 The customer and guarantor (if any):
10.4.1 Agree(s) that nothing in s114(1)(a), 117(1), 133, and 134 of the PPSA will apply to these terms and conditions; and
10.4.2 Waive(s) the customer's right to do any of the following:
10.4.2.1 Object to the supplier's proposal to retain any personal property under s121 of the PPSA;
10.4.2.2 Not have goods damaged when the supplier removes an accession under s125 of the PPSA;
10.4.2.3 Receive notice of the removal of an accession under s129 of the PPSA;
10.4.2.4 Apply to the Court for an order concerning the removal of an accession under s131 of the PPSA;
10.4.2.5 To receive a copy of the verification statement confirming registration of a financing statement or a financing change statement relating to the security interest created by these terms and conditions.
11. Consumer Guarantees Act
11.1 Where the supplier is supplying goods and services to the customer for business purposes within the meaning of the Consumer Guarantees Act 1993, pursuant to Section 43 the provisions of that Act will not apply to this contract.
11.2 Where the supplier is supplying goods and services to the customer other than for business purposes the provisions of clauses 8.2 – 8.5 above will have no effect and the provisions of the Consumer Guarantees Act 1993 will apply.
11.3 Where the customer supplies the goods on to a person acquiring them for business purposes it will be a term of the customer's contract with the buyer of the goods that the Consumer Guarantees Act 1993 will not apply in respect of the goods.
12. Information and Privacy Act
12.1 For the purpose of facilitating the efficient running of the supplier's business, the customer authorises the supplier:
12.1.1 to collect all information it may require from any third parties and authorises those third parties to release that information to the supplier; and
12.1.2 to hold all information given by the customer or any third parties to the supplier; and
12.1.3 to use that information, including giving information to any other person to facilitate collection of debts from the customer.
12.2 The information will be collected, held and used on the condition that:
12.2.1 it will be held securely at the supplier's registered office; and
12.2.2 it will be accessible to any of the supplier's employees and agents who need access to it for the efficient running of the supplier's business; and
12.2.3 the customer may request access to and correction of it at any time.
13. Delivery & Risk
13.1 The supplier is not responsible for delays in delivery of the goods and services beyond its control.
13.2 Unless otherwise agreed, the delivery point will be at the property.
13.3 Risk in goods supplied will pass to the customer when the goods are delivered to the delivery point.
14. Waiver and Forbearance
14.1 All the supplier's rights will remain in full force despite any delay in enforcement. The supplier will not be deemed to have waived any condition unless that waiver is in writing and signed by a duly authorised officer of the supplier. Any waiver will apply only to the particular matter in respect of which it is given.
15. Assignment
15.1 The supplier is entitled at any time to assign its rights under the contract. The assignee will be entitled to claim full rights of set off or counter claim against the customer, its charge holders or successors in respect of the debt or part of the debt which is assigned.
15.2 The customer is not entitled to assign its rights under this contract.
16. Entire Contract
16.1 The supplier and the customer agree that these terms express the complete agreement between them. There has been no representation made by either party to the other except as expressly set out in this document. There is no inconsistency with the terms of any order that may be lodged by the customer. If there is any inconsistency then any such order will be of no effect. This contract will not be subject to change or modification except with the prior written consent of both parties.
17. Termination
17.1 This contract (including any unperformed obligations of the supplier) may be terminated by the supplier's written notice to the customer that no further goods and services will be supplied due to:
17.1.1 the customer's default under the contract; or
17.1.2 the customer becoming insolvent; or being subject to the appointment of a receiver, manager, liquidator, or statutory manager; or committing an act of bankruptcy; or making a scheme of arrangement with its creditors; or being unlikely to be able to meet its obligations to the supplier (in the opinion of the supplier).
17.2 The agreements of the parties will not merge with termination under this contract.