9.1 The parties agree that ownership of the Goods shall not pass until:
9.1.1 You have paid us all amounts owing for the particular Goods; and
9.1.2 You have met all other obligations due to us in respect of all contracts between the parties.
9.2 It is further agreed that:
9.2.1 until such time as ownership of the Goods shall pass from us to you, we may give notice in writing to you to return the Goods to us. Upon such notice being given, the rights of you to obtain ownership or any other interest in the Goods shall cease; and
9.2.2 until such time that ownership in the Goods passes to you, if the Goods are converted into other products, the parties agree that the we will be the owner of the end products.
9.2.3 if you fail to return the Goods to us then we (or our agent) may enter upon and into land and premises owned, occupied or used by you, or any premises where the Goods are situated as the invitee of you and take possession of the Goods, and we will not be liable for any reasonable loss or damage suffered as a result of any action by us under this clause. You indemnify us to the full extent of any loss or damage as a result of any action by us under this clause.
10 Personal Property Securities Act 1999 (“the PPSA”)
10.1 Upon acceptance of this Agreement in writing, you acknowledge and agree that:
10.1.1 This Agreement constitutes a security agreement for the purposes of the PPSA; and
10.1.2 a security interest is taken in all of your present and after-acquired property that we has supplied to you or in which Goods supplied or financed by us have been attached or incorporated.
10.1.3 the preceding clause provides us with a security interest in your after-acquired property in terms of section 43 of the PPSA.
10.2 You undertake to:
10.2.1 sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which we may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register;
10.2.2 indemnify, and upon demand reimburse us for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register or releasing any Goods thereby;
10.2.3 to be responsible for the full costs incurred by us (including actual legal fees and disbursements on a solicitor/client basis) in obtaining an order pursuant to section 167 of the PPSA and/or otherwise enforcing any security interest created by this Agreement, including subordination agreements;
10.2.4 not register a financing change statement or a change demand in respect of the Goods without the prior written consent of us;
10.2.5 immediately advise us of any material change in our business practices of selling the Goods which would result in a change in the nature of proceeds derived from such sales;
10.2.6 to give us not less than 14 days’ prior written notice of any proposed change to your name or any other changes to your details, including a change of address, email address or trading name;
10.2.7 on request by us to immediately obtain from any third parties such waivers as we may at any time require to protect our security position.
10.3 You agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to this Agreement,
10.4 You waive agree to waive your rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129 and 131 of the PPSA.
10.5 Unless otherwise agreed to in writing by us, you waive your right to receive a verification statement in accordance with Section 148 of the PPSA.
10.6 The Buyer shall unconditionally ratify any actions taken by the Seller under clauses 10.1 to 10.5.
11 Return of Goods
11.1 The return of Goods is considered at our sole discretion.
11.2 We will only consider a request for the return of Goods provided that:
11.2.1 The request is made within seventy-two (72) hours of delivery of Goods to you; and
11.2.2 The Goods are unused, in original packaging and in saleable condition; and
11.2.3 The Goods are a “standard stock item” (determined at our sole discretion); and
11.2.4 You agree to pay a restocking fee or 20% of the original invoice value (whichever is greater); and
11.2.5 You agree to pay all return freight and insurance costs.
12.1 Where the Consumer Guarantees Act 1993 (“the CGA 1993”) applies to the supply of Goods or Services under this Agreement, you may have additional rights under the CGA 1993.
12.2 Where Goods supplied are subject to manufactures’ warranties, we will pass on the benefit of those warranties to you, without being directly liable to you under any warranty. You are responsible for the cost of returning Goods to the Manufacturer or to us under any warranty, and you may be responsible for additional costs including (but not limited to) freight. Where you require us to do anything related to a warranty claim, you must pay our service and call-out charges. We reserve the right to refuse to assist with warranties if any sum that you owe to us is overdue.
12.3 In addition to any rights you may have under the CGA 1993 or any manufactures’ warranty, we offer a twelve (12) month warranty on workmanship on air-condition units that we install.
12.4 Any warranty may be voided by unreasonable use, damage or misuse of equipment, damage after the Goods left our possession, negligent operation, inadequate cleaning and maintenance, unauthorised repairs, modifications or the use of parts, hardware, or consumables not supplied by us.
12.5 Where the Goods and Services that you acquire from us are not of a kind ordinarily acquired for personal, household, or domestic use or consumption, or where you acquire, or hold yourself out as acquiring, the Goods or Services for the purpose of a business, the provisions of the CGA 1993 and the conditions, warranties and guarantees set out in the Contract and Commercial Law Act 2017, or implied by common law will not apply and are excluded from this Agreement.
13 Limitation of Liability
13.1 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, drought, pandemic, storm or other event beyond the reasonable control of either party.
13.2 Subject to clause 12.1, our liability shall be limited to the value of defective Goods, Services supplied and none of us, our employees, contractors or agents, any manufacturer(s), or any of their materials or components or any suppliers of services, will be liable to you for loss or damage of any kind however that loss or damage is caused or arises. This limitation of liability includes, but is not limited to, costs (including costs of returning Goods to us or to any manufacturer), loss of data, indirect or consequential loss, loss of contracts, loss of profits, damage caused by or arising from delays manufacture or delivery, faulty or delayed installation, unreasonable use, negligence
(including a failure to do something that should have been done or prevent something from happening), faulty specifications and design, or faulty materials or components of Goods.
14 Health and Safety at Work Act 2015
14.1 The parties acknowledge their respective obligations pursuant to the Health and Safety at Work Act 2015 (“the HSWA 2015”) and agree to comply with their respective duties and responsibilities under the HSWA 20115.
14.2 The parties will work cooperatively with each other in respect of any aspects where the parties have overlapping duties or obligations. The parties agree that they will consult with each other regularly to identify hazards and risks of harm at each Workplace (as defined in the HSWA 2015), and where hazards or risks of harm have been identified, to each incorporate these into their respective health and safety procedures and protocols to minimise the risk of harm or hazard as appropriate.
15.1 If there is any dispute relating to this Agreement or any Goods or Services supplied, the party raising the dispute must give the other party written notice specifying particulars of the dispute.
15.2 If negotiations between the parties do not resolve the dispute, either party may refer a dispute to adjudication under the CCA 2002 or bring a claim before the Disputes Tribunals, the District Court, or the High Court, as appropriate.
16 General Conditions
16.1 This Agreement (and any agreement) between us is governed by the laws of New Zealand.
16.2 If we fail to enforce any terms or to exercise any right under this Agreement at any time, we have not waived that right.
16.3 You may not assign or subcontract your rights or obligations under this Agreement.
16.4 If any provision of this Agreement is held to be invalid or unenforceable for any reason, the remaining provisions shall remain in full force and effect and the parties shall adjust their respective rights and obligations in accordance with the spirit and intent of the parties as shown by this Agreement.
16.5 We may licence or sub-contract our rights under this Agreement without your consent.
16.6 We reserve the right to review this Agreement at any time. If, following any such review, there is to be any change to these terms and conditions, then that change will take effect from the date on which we notify you of such change.
16.7 We retain all rights in or to any intellectual property associated with the Goods or Services irrespective of their sale or delivery to you.