1. The following terms shall be incorporated into every contract between (Waiheke Appliance Services) WAS and the customer for the supply of goods and services unless specifically excluded in writing and annexed hereto. No variation of these terms will be binding upon WAS unless made in writing. In the event of inconsistency between these terms of any quotation or other agreement entered into between WAS and the customer, then these terms shall take precedence at all times.
2.1 “Customers” shall mean the customer, any person acting on behalf of and with the authority of the customer, or any person purchasing goods and or services from WAS.
2.2 “Goods” shall mean all goods, chattels or services, provided by WAS to the customer, all shall include without limitation the supply, installation, service and maintenance of refrigerant, air conditioning, heat pump and electrical equipment, fixtures, fittings all charges for labour and work, hire charges, insurance charges, or any fee charged or associated with the supply of goods by WAS to the customer.
3. Collection and Use of information
3.1 The customer authorises WAS to collect, retain and use any information about the customer, or for the purpose of assessing the customer’s credit worthiness, enforcing any rights under this contract, or marketing any goods and services provided by WAS to any other party.
3.2 The customer authorises WAS to disclose any information obtained to any person for the purposes set out in clause 3.1.
3.3 Where the customer is a natural person the authorities under clauses 3.1 and 3.2 are authorities or consents for the purpose of the Privacy Act 1993.
3.4 Where the customer is a company and a director hereby authorises WAS for the purposes of assessing the customer’s creditworthiness or enforced any rights under this contract.
4.1 Unless WAS has agreed to grant credit to the customer, payment is to be made at point of sale (this means at supply of goods only or at completion of installation, whichever is applicable).
4.2 Where WAS has agreed to grant credit, payment shall be made without any deduction or setoff, on or before the agreed upon date.
4.3 Receipt of any cheque or other bill of exchange shall not comprise payment until it is honoured or cleared.
4.4 WAS accepts cash, Master Card and Visa credit and debit card payments.
4.5 If the customer fails to make payment by the due date it shall be liable to pay to WAS by way of liquidated damages, interest at a rate of 2.5% per month calculated on a daily basis.
4.6 Where the duration of work extends beyond one month, WAS may issue an invoice as a progress payment for the monthly period.
4.7 The invoice issued is a payment claim under the Construction Contracts Act 2002.
4.8 If at any time WAS agrees that any outstanding account may be paid off over time, it is strictly on the basis that should any payment be missed, then the full balance owing as at the date that payment is missed becomes due and owing immediately and WAS may pursue the customer for the full outstanding amount notwithstanding the agreement for time payment.
5.1 If the customer fails to pay any amount owing on the due date, or commits any other default under this contract then if any such default shall continue for seven days:
5.2 All amounts payable by the customer shall upon such default become due and payable and WAS may enforce payment of the balance owing and interest shall be payable thereon as set out in clause 4.3 notwithstanding that delivery and/or installation of any parts or materials has not been affected and that but for this clause payment would not then be due.
5.3 WAS shall be entitled to refuse to delivery any further materials or equipment to the customer under this contract or any other contract until any default on the part of the customer is remedied.
5.4 WAS may by written notice to the customer, cancel this contract and any rights exercised by WAS pursuant to this clause shall not terminate the customer’s liabilities under the contract, or to pay damages for any breach of it.
5.5 The customer shall pay WAS’s full legal costs or a solicitor/client basis for legal services relating to recovery of outstanding amount owed by the customer.
6.1 WAS does not provides quotations of work to be undertaken though in some instances may provide an estimate. Estimates are subject to change and where the final bill is more or less than what was estimated, this difference will be passed on to the customer.
6.2 WAS will endeavour to notify the customer as soon as possible if the final cost is projected to be significantly different to what has been estimated.
6.4 WAS reserves the right to alter the estimate where the estimate has been submitted based on plans or has been based upon work in an area of a building that cannot be viewed until the work is undertaken, or circumstances beyond the control of WAS dictate the estimate may be reviewed and altered at WAS’s discretion. Notwithstanding that any estimate has stated that it is a estimate in the circumstances set out in this clause.
7. Return of Goods
7.1 The customer may not return or refuse delivery of goods purchased by WAS on behalf of the customer unless agreed to in writing by WAS.
7.2 Any parts ordered by WAS at the customers request where the technician has not been to identify the part in the first instance are non-transferrable or refundable.
8.1 Title in the goods passes to the customer when the customer has made payment for all goods supplied by WAS.
8.2 Where the customer has not paid for any goods in its possession property of such goods shall remain with WAS and:
8.2.1 The goods shall be held by the customer as bailer, and
8.2.2 If the goods are attached, fixed or incorporated into any property of the customer by of any manufacturing or assembly process by the customer or any third party title of the goods shall remain with WAS until the customer has made payment for all goods, and where those goods are mixed with other property so as to be part of or a constituent of any new goods, title to these goods shall be deemed to be assigned to WAS as security for the full satisfaction by the customer of the full amount owing between WAS and the customer.
8.3 The customer gives irrevocable authority to WAS to enter any premises occupied by the customer, at any reasonable time, to remove any goods not paid for in full by the customer. WAS shall not be liable for costs, damages for expenses or any other losses incurred by the customer or any third party as a result of this action, nor liable in contract or in tort or otherwise in any way whatsoever.
8.4 WAS assures all goods are of merchantable quality and free from defect. No goods shall be returned to WAS without prior written authorization. If goods are found to be defective WAS at its option may replace or repair and return free from defect.
8.5 Under no circumstances may goods be returned other than as defective and authority for return will not be given for the following – shop soiled, where the goods have been used where the customer has damaged them.
9. Limitation of Liability
9.1 WAS’s liability under this clause or any contract collateral hereto is limited to replacing (or at the election of WAS repairing) any defective goods to the entire exclusion of any other remedy which, but for this clause, the customer might have and WAS shall be under no liability for any damage, injury direct or consequential or other loss, or loss of profits or costs, charges and expenses on the part of the customer, or any other person other than to repair or replace as mentioned above. WAS shall not be liable to the customer if for any reason beyond WAS’s control is not able to deliver or supply any of the goods.
10.1 The customer acknowledges that it grants a security interest (as defined in the Personal Property Securities Act 1999 (“PPSA”) in all present and after acquired property as security for its obligations to WAS. The customer must do all things including executing all documents that WAS requires to provide WAS with a first ranking security interest in the goods.
10.2 The customer waives the right to receive a copy of the verification stated under the PPSA and agrees it will have none of the rights under ss114(1)(a), 116, 117(1)(c), 119, 120(2), 121, 125, 129, 131, 132, 133 and 134 of the PPSA. Where WAS has rights in addition to and in particular will not be limited by s109 of the PPSA.
10.3 The customer agrees to indemnity WAS for any costs WAS incurs in registering, maintaining for enforcing the security interest created by these terms including actual legal costs on a solicitor/client basis.
10.4 The customer must immediately notify WAS if it changes its name.
11. Consumers Guarantees Act
11.1 The guarantees contained in the Consumer Guarantees Act 1993 are excluded where the customer acquires goods or services from WAS for the purposes of a business in terms of section 2 and 43 of that Act.
12. General Lien
12.1 The customer agrees that WAS may exercise a general lien against any goods or any property belonging to the customer that is in possession of WAS for any sums outstanding under the contract and any other contract to which the customer and company are parties.
12.2 If the lien is not satisfied within 7 days of the due date WAS may having given notice of the lien as its option either:
12.2.1 Remove such goods or property and store them in such a place and in such a manner as WAS shall think fit and proper and at the risk and expense of the customer. Or:
12.2.2 Sell such goods or property or part thereof upon such terms as it shall think fit and apply the proceeds in or towards discharge of the lien and costs of sale without being liable to any person for damage caused.
13.1 No representation, condition, warranty or remise expressed or implied by law or otherwise applies to the estimate except where goods are supplied pursuant to the Consumer Guarantees Act 1993 or except where expressly provided to the customer at the time of sale HOWEVER no warranty will exceed that given by the manufacturer.
13.2 WAS will pass on to the customer any third party warranties such as those of the manufacturer at the time of purchasing the goods and will ensure all installations are done in a good and proper workmanlike manner which will be warranted for 12 months from the date of completion of the job.
13.3 No warranty shall be enforceable by the customer whilst money is owing to WAS.
13.4 WAS guarantees all workmanship for a maximum of 90 days where any issue, fault or lack of diagnosis lies as a direct result of an oversight by a WAS employee or contractor. This pertains to labour only, WAS takes no personal responsibility for failure of any parts or appliances supplied unless this is as a direct result or caused by WAS.
13.4 Where a warranty is reduced, the customer will be advised as soon as possible, or on completion of the installation.
14.1 WAS shall, without any liability and without any prejudice to any other right it has in law or equity have the right by notice to suspend or cancel in whole or in part any contract for supply of goods to the customer if the customer fails to pay any money owing after the due date or commits an act of bankruptcy as defined in section 19 of the Insolvency Act 1967.
14.2 Any cancellation or suspension under clause 15 of the agreement shall not affect WAS’s claim for money due at the time of cancellation or suspension or for any damages for any breach of any terms of this contract of the customer’s obligations in WAS under this contract.
14.3 If the customer pays a deposit and then cancels the contract for whatever reason all deposited funds are non-transferable or refundable once the agreement has been made.
15.1 The customer charges in favour of WAS as security for the customer’s obligations to WAS, all right, title and interest in any property held now by the customer either alone or jointly with anyone or acquired by the customer at any time hereafter. If the customer defaults in payment of any amount owed to WAS, the customer specifically authorizes WAS to lodge a caveat against any such property and appoints WAS to be the customer’s attorney for this purpose, provided that, this authority is to be taken as authority to create a mortgage charge on the property if a caveat is not possible, or if a mortgage charge is necessitated to protect WAS’s interests, at WAS’s discretion.
16.1 The customer shall not assign all or any of its rights or obligations under this contract without the written consent of WAS.
16.2 WAS shall not be liable for delay or failure to perform its obligations if the cause of the delay or failure is beyond its control.
16.3 Failure by WAS to enforce any of the terms and conditions contained in this contract shall not be deemed to be a waiver of the rights or obligations WAS has under this contract.
16.4 The law of New Zealand shall apply to this contract except to the extent expressly negatived or varied by the contract.
16.5 Where the terms of this contract are at variance with order or instruction from the customer this contract shall prevail.
16.6 If any provision of this contract shall be invalid void or illegal or unenforceable the validity existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
16.7 Any dispute between the parties is to be dealt with in accordance with the Arbitration Act 1996.