TERMS AND CONDITIONS

TERMS AND CONDITIONS OF TRADE

1. Definitions

Company shall mean Seka Electrical Limited or its agents and employees.
Customer shall mean any corporation, association, firm, company, partnership, Trustees of a Trust, individual or any person acting on behalf of and with the authority of the customer.
Date of Contract means the date of acceptance of the order by the Company; or where the contract arises from a Quotation given by the Company, the date upon which either the written or verbal notification of acceptance of the Quotation is received by the Company.
Delivery shall mean the provision, implementation or instalment of either physical Goods or Services to the premises or other site specified by agreement with the Customer.
Goods shall have the same meaning as defined under s119 of the Contract and Commercial Law Act 2017 and are goods supplied by the Company to the Customer.
Goods and Services shall mean all advice, Goods, third party and Company’s own products and Services provided by the Company to the Customer. This shall include without limitation all contracting, maintenance, services, supply of components, charges for labour, hire charges, insurances or any fee associated with the supply of Goods and Services by the Company to the Customer.
PPSA means the Personal Property Securities Act 1999 and associated regulations and their amendments.
PPSR means the Personal Property Securities Register under the PPSA.
Services shall mean all Services supplied by the Company to the Customer and includes any advice or recommendations.

2. Acceptance
2.1 When any instruction is received by the Company from the Customer for the provision of Goods and Services, the instruction shall constitute acceptance of the Terms and Conditions herein and shall from that point be definitive and binding.

3. Quotation
3.1 The Customer may make a request for a quotation. The Company will set out the indicative price of Goods and Services to be supplied to the Customer within a specified timeframe. This timeframe may be extended at the Company’s sole discretion;

3.2 Unless otherwise agreed, the quotation shall be valid for ninety (90) days from the date of issue; and
a. The quotation shall be exclusive of goods and services tax unless specifically stated to the contrary;
b. The Company reserves the right to alter the quotation because of circumstances beyond its control.

3.3 Where Goods and Services are required in addition to the Quotation, the Customer agrees to pay for the additional cost of such Goods and Services.

4. Terms and Conditions
4.1 These Terms and Conditions constitute the working parameters of the contract. These Terms and Conditions and any subsequent issued by the Company shall apply to all orders for Goods and Services from the Customer at the time of Acceptance of contract.

4.2 The Customer holds responsibility to ensure that these Terms and Conditions are brought to the attention of any appropriate staff member of the Customer upon Acceptance of any works the Company is engaged to perform.

5. Price
5.1 The Price shall be either as indicated on the invoices provided by the Company to the Customer in respect of the Goods and Services supplied; or the Company’s current price at the date of Delivery of any Goods according the Company’s current price list.

5.2 Price may also include consideration for ‘one-off’ costs such as design and production and the Company reserves the right to implement a surcharge for alterations to specifications for Goods and Services after Acceptance.

5.3 The Company reserves the right to implement a restocking charge of 5% of the purchase price of any goods correctly supplied by the Company but later returned by the Customer for a credit.

6. Payment
6.1 Payment for Goods and Services shall be made in full on or before the due date of the invoice (“the due date”).

6.2 Subject to any contractual provision otherwise agreed upon, payment shall be received on or seven (7) days following the date of the Company’s invoice to the customer, which shall be issued promptly on or after the Goods and Services have been supplied.

6.3 Late payment shall incur interest at the rate of 2.5% per month calculated on a daily basis and invoiced monthly. This shall be payable on any monies outstanding under the Contract from the date payment was due until the due payment is received by the Company but without prejudice to the Company’s other rights or remedies due under the Contract.
The Company reserves the right to undertake this action without prior notice to the Customer.

6.4 Any monies that remain outstanding to be paid once the date of payment has fallen due may be referred to a debt collection agency. The Company reserves the right to undertake this action without prior notice to the Customer.
The Customer will be liable for all costs associated with the collection of any outstanding monies; including, but not limited to, debt collection agency costs, legal fees, Court costs and all reasonable sums incurred by the Company in pursuit of satisfying payment.

6.5 Without prejudice to any other remedies the Company may have, if at any time the Customer is in breach of any obligation (including those relating to payment) the Company may suspend or terminate the supply of Goods and Services to the Customer and any of its other obligations under the Terms and Conditions.

6.6 In any event that:
a) Any money payable to the Company becomes overdue, or in the Company’s opinion the Customer will be unable to meet its payments as they fall due; or
b) The Customer 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 or manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer;
Then without prejudice to the Company’s other remedies at law the Company shall be entitled to cancel all or any part of the order of the Customer that remains unperformed in addition to, and without prejudice to any other remedies; and all amounts owing to the Company shall, whether or not due for payment, immediately become payable.

6.7 The Customer shall not at any time set-off as against any amount payable by the Customer pursuant to this contract or any other contract between them any amount owed or allegedly owed by the Company to the Customer.

7. Risk
7.1 Risk in any Goods and Services supplied by the Company shall pass to the Customer when the Goods and Services are delivered to the Customer. It shall be the Customer’s obligation to insure the Goods and Services from that time.

8. PPSA
8.1 Title in any Goods supplied by the Company passes to the Customer only when the Customer has made payment in full for all Goods and Services provided by the Company and all of the other sums due to the Company have been paid in full.

8.2 These Terms and Conditions constitute 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 and shall apply to both all Goods previously supplied to the Customer (if any) and all Goods that will be supplied by the Company in the future.

8.3 If the Goods are attached, fixed or incorporated into any property of the Customer, by way of manufacturing or assembly process by the Customer or any third party, title in the Goods shall remain with the Company until the Customer has made payment for all Goods, and where those Goods are mixed with any other property so as to be part of or a constituent of any new Goods, title to those new Goods shall be deemed to be assigned to the Company as security for the full satisfaction by the Customer of the full amount owing by the Customer to the Company.

8.4 The Customer gives the Company irrevocable authority to the Company to enter any premises occupied by the Customer on which Goods are situated at any reasonable time after default by the Customer or before default if the Company believes a default is likely and to remove and repossess any Goods and any other property to which Goods are attached or in which Goods are incorporated.
The Company shall not be liable for any costs, damages, expenses or 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 unless by statute such liability cannot be excluded.
The Company may either resell any repossessed Goods and credit the Customer’s account with the net proceeds of sale (after deduction of all repossession, storage selling and other costs) or may retain any repossessed Goods and credit the Customer’s account with the invoice value thereof less any such sum as the Company reasonably determines on account of wear and tear, depreciation, obsolescence, loss or profit and costs.

8.5 The Customer agrees to sign any further documentation and/or provide further information which the Company may reasonably require to register and/or renew a registration of a financing statement or financing change statement on the PPSR in favour of the Company.

8.6 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 upon the Company in the Customer’s favour, will not apply; and when the Company has rights in addition to those in Part 9 of the PPSA, those rights will continue to apply.

8.7 To the extent that Part 9 of the PPSA applies, without limiting anything in clause 8.6 of this agreement, the Customer hereby waives its rights under sections 116, 102(2), 121, 125, 126, 127, 129 and 131 of the PPSA, and its rights to receive a copy of the verification statement under section 148 of the PPSA in respect of any financing statement or change statement registered by the Company.

8.8 The Customer shall indemnify, and upon demand reimburse, the Company for any and all costs incurred in registering a financing statement on the PPSR or releasing any Goods charged thereby.

9. Governing Laws
9.1 These Terms of Trade will be interpreted in accordance with applicable government legislation of New Zealand, which will have exclusive legal jurisdiction over any dispute in relation to the Goods and Services provided and/or these Terms of Trade.

9.2 If the Customer is acquiring Goods and Services for the purpose of a trade or business, the Customer has been given the opportunity to decide and agrees that the provisions of the Consumer Guarantees Act 1993 does not apply.

9.3 Under the Privacy Act 1993 the Customer has the right of access to and correction of any personal information regarding the Customer that the Company holds. The Customer authorises the Company to collect, retain and use any information about the Customer for the purposes of assessing the Customer’s creditworthiness or marketing Goods and Services to the Customer.

10. Cancellation
10.1 The Company may cancel these Terms and Conditions or cancel the delivery of the Goods or provision of the Services at any time before the Goods are delivered or the Services are provided by giving written notice. On giving such notice the Company shall promptly repay to the Customer any sums paid in respect of the Price for those Goods and/or Services. The Company shall not be liable for any loss or damage whatsoever to the Customer arising from such cancellation.

11. Dispute Resolution
11.1 Any dispute arising out of or relating to this contract may be referred to mediation, a non-binding dispute resolution process in which an independent mediator facilitates negotiation between the parties. Mediation may be initiated by either party writing to the other party and identifying the dispute which is being suggested for mediation. The other party will either agree to proceed with mediation or agree to attend a preliminary meeting with the mediator to discuss whether mediation would be helpful in the circumstances. The parties will agree on a suitable person to act as mediator or will ask the Arbitrators' and Mediators' Institute of New Zealand Inc. to appoint a mediator. The mediation will be in accordance with the Mediation Protocol of the Arbitrators' and Mediators' Institute of New Zealand Inc."
"The mediation shall be terminated by -
(a) The signing of a settlement agreement by the parties; or
(b) Notice to the parties by the mediator, after consultation with the parties, to the effect that further efforts at mediation are no longer justified; or
(c) Notice by one or more of the parties to the mediator to the effect that further efforts at mediation are no longer justified; or
(d) The expiry of sixty (60) working days from the mediator's appointment, unless the parties expressly consent to an extension of this period.
"If no mediation is agreed to or if the mediation should be terminated as provided in (b), (c) or (d), any dispute or difference arising out of or in connection with this contract, including any question regarding its existence, validity or termination, shall be referred to and finally resolved by arbitration in New Zealand in accordance with New Zealand law and the current Arbitration Protocol of the Arbitrators' and Mediators' Institute of New Zealand Inc. The arbitration shall be by one arbitrator to be agreed upon by the parties and if they should fail to agree within twenty-one (21) days, then to be appointed by the President of the Arbitrators' and Mediators' Institute of New Zealand Inc.

12. Intellectual Property
12.1 Where the Company has designed, drawn or written Goods for the Customer, then the copyright of those designs, drawings and written documents shall remain vested in the Company and shall only be used by the Customer at the Company’s discretion.

12.2 The Customer warrants that all designs or instructions to the Company will not cause the Company to infringe any patent, registered design or trademark in the execution of the Customer’s order and the Customer agrees to indemnify the Company in respect of any such infringement.

12.3 The Customer agrees that the Company may use any documents, designs, drawings or products created by the Company for the purposes of advertising, marketing, or entry into any competition.

13. Warranty
13.1 The Company warrants that it will repair, replace, alter or make good (at the Company’s option, but free of charge except for matters specified later in this clause) any defects in the Goods and/or Services provided by the Company which are defective or deficient in any way due to the Company’s workmanship and/or materials.

13.2 The Company must receive written notice of the claim by the Customer within three (3) months from the date the Goods and/or Services were provided.

13.3 This warranty undertaking is subject to the following conditions:
(a) No attempt to repair the defective Goods and/or Services is to have been made by any person not authorised by the Company;
(b) All Goods supplied must not have been misused.
(c) The Goods supplied must not have been modified in any way by the Customer, its Agent or representative or by any person whatsoever not authorised by the Company;
(d) The Goods supplied must have been adequately maintained in accordance with the Company’s maintenance and operating instructions which are inclusive of standard good practice guidelines.
(e) Identification or serial numbers on any defective Goods must not have been altered, defaced or interfered with in any way whatsoever.
(f) If required by the Company (written notice will be given), the Customer must return to the Company, at the Customer’s own expense and risk, any alleged faulty materials, such materials shall immediately become the property of the Company; damage caused to Goods or to its electrical and electronic components and apparatus resulting from the incorrect use of utilities (including water, steam and compressed air) and from over voltage or voltage surcharges are excluded from this undertaking;
(g) Damage caused to the Goods supplied by corrosion (either chemical or otherwise) is excluded from this undertaking;
(h) Damage caused to the Goods supplied by the Customer’s faulty design or installation is excluded from this undertaking;
(i) Damage caused to the Goods supplied by the Customer, in whatever form taken, is excluded from this undertaking.

13.4 If the Company elects to repair or replace any defective Goods, such work shall be undertaken at such place as the Company may reasonably specify and the Customer shall be responsible at its cost and risk for shipment of the defective goods to the place specified.

13.5 The undertakings given in clause 13 shall apply, under the same terms and conditions as those originally applicable, to any of the Goods and/or Services (or part thereof) that have been repaired, replaced, altered or made good under this clause but only to the extent of the unexpired portion of the undertaking specified under the warranty clause.

14. Limitation of Company Liability
14.1 The Consumer Guarantees Act 1993, the Fair trading Act 1986 and other statutes may imply warranties, consumer guarantees or conditions that impose obligations upon the Company which cannot by law (or which can only to a limited extent by law) be excluded or modified. In any respect of such implied warranties, consumer guarantees, conditions or terms imposed on the Company, the Company’s liability shall, where it is allowed, be excluded or if not able to be excluded only to the minimum extent as required by the relevant statute.

14.2 Except as otherwise provided, the Company shall not be liable for any loss of any kind whatsoever to the Customer arising as a result of any breach of any of the Company’s obligations under the contract, including the cancellation of the contract or any negligence on the part of the Company , its servants, agents or contractors, ‘nor shall the Company be liable for any loss, damage or injury caused to the Customer’s servants, agents, contractors, buyers, visitors, tenants, trespassers or other persons. The Customer shall indemnify the Company against any claim by any such person.

14.3 Notwithstanding the provisions of these Terms and Conditions, if it is determined by any Court of competent jurisdiction that the Company is liable to the Customer, whether in Contract or in Tort (including negligence), strict liability or by virtue of the breach of any statutory duty or otherwise, it is agreed that the total liability in respect of all claims that the Customer, its servants, agents, or contractors may make against the Company will be limited to the contract price actually paid by the Customer and received by the Company.

14.4 The Company’s liability to its Customer is strictly limited by the undertakings given to the Customer in clause 13. Any condition, warranty or other implied term not expressly contained within these Terms and Conditions is excluded. The only exception to this is where there is an express Term contained within a signed contract agreed to by both the Company and the Customer.

14.5 If any provision of these Terms and Conditions shall be invalid, void, illegal or unenforceable, the validity, existence, legality or enforceability of the remaining provisions shall not be affected, prejudiced or impaired.