Port Electrical Limited
Terms of Trade
1. Definitions
1.1 In these Terms, the following words have the meanings given below unless the context requires otherwise.
“Act” means the Construction Contracts Act 2002 and any legislation amending or replacing that act.
“Agreement” means the contractual relationship between You and Us comprised of these terms, any Proposal, order forms and each invoice or other document evidencing or describing the Works.
“Goods” means electrical parts and equipment, consumables, materials and other tangible items supplied or to be supplied by us as part of the Works.
“Proposal” means our quotation, estimate or other offer for the provision of the Works to you.
“Site” means any location or premises under your control where we are to deliver the whole or any part of the Works.
“We”, “Us” and “Our” means Port Electrical Limited and our officers, agents and employees.
“Works” means all Goods and services we provide to you or otherwise carry out on your instruction including (without limitation) any electrical consulting and design services.
“You” and “Your” means you, the customer purchasing goods and services from Us.
2. Terms Apply
2.1 These terms apply to all Works we provide to you.
2.2 In the case of any conflict between these terms and the provisions of any other agreements or documents relating to the Works, unless we have expressly stated in writing that these terms of trade do not apply, these terms shall apply and shall prevail to the extent of any conflict or inconsistency.
3. Proposals & Acceptance
3.1 Where a Proposal is given by us for Works, unless otherwise specified the Proposal shall be valid for 30 days from the date of issue. We reserve the right however, to withdraw or alter the Proposal prior to acceptance by you because of circumstances beyond our reasonable control. For example, if a supplier alters the prices it charges to us for Goods to be supplied as part of the Works.
3.2 An instruction from you, your agents or employees, verbally or in writing to proceed with the Works shall be a binding instruction for us to proceed with the instructed Works and shall mean you have accepted the Proposal and agree to pay us for the Works in accordance with these terms.
3.3 Our Proposal is based on the information you have provided to us. You must ensure that the information you provide is accurate and that you brief us on all material matters relating to the Works. If you do not, delivery or completion of the Works may be delayed or the charges may change.
3.4 We will use reasonable endeavours to meet any target completion date provided in our Proposal or otherwise agreed by us but target completion dates are estimates only and are subject to weather conditions, availability of Goods and materials and any services provided by third parties.
4. Variations
4.1 Sometimes projects may require changes that were not expected at the outset or you may request changes. If this happens we will try to agree on a variation to the Proposal with you (“Variation”). Any agreed Variation (whether written or oral) will amend and become part of the Proposal.
4.2 We may consider in good faith that a Variation is necessary for Us to provide or continue providing the Works to the required standard because of some defect or deficiency relating to your existing equipment, infrastructure or services (“Defect”). In such cases, if You are unwilling to agree to a Variation to the Services to remedy or mitigate such Defect, We may at our discretion terminate the Proposal and cease delivery of the Works. In that event you will immediately pay us for the Works provided to the date of termination.
5. Availability of Credit
5.1 If you require credit, we may require you to complete our credit application form and met any reasonable credit criteria we have prior to the delivery of the Works.
5.2 We reserve the right to:
(a) require payment or part-payment for the Works prior to commencement;
(b) refuse to give you credit; and
(c) amend or withdraw any credit terms or limit previously given to you where you are in breach of the Agreement or where we believe on reasonable grounds you are likely to breach the Agreement.
6. Price and Payment
6.1 Unless otherwise stated, our prices do not include goods and services tax (“GST”). You are required to pay GST in addition to the price.
6.2 Where the Act applies, payment must be made in accordance with the payment terms specified in the Act. Where the Act does not apply, payment for the Works is due by the date shown on the invoice. If no date is shown, then payment is due within 7 days of the date of invoice.
6.3 Where the Works are not completed within a calendar month, a progress claim invoice for the value of the Works completed during that month will be sent at the end of the month.
6.4 You may not deduct, set-off or withhold any amount from any money owing by you to us other than any amount you are entitled to withhold as specified in the Act.
6.5 If you believe we have made an error in an invoice or if you have a genuine dispute in relation to an invoice, you must notify us of that prior to the due date of the invoice. If you do not notify us prior to the due date (time being of the essence) you are deemed to have accepted the charges shown in the invoice as being correct and payable.
7. Risk & Returns
7.1 Goods remain at our risk until delivery to you. Delivery of Goods shall be deemed completed when we or our carrier gives possession of the Goods to you or any agent, employee or contractor or yours.
7.2 Any Goods we purchase specifically for Works and held by us pending delivery to you will be invoiced to you at the end of the month of purchase. Such Goods shall be stored separately, identified as belonging to you and insured under our insurance policy.
7.3 We reserve the right to decline to accept the return of Goods for credit that we have purchased specifically for you where our supplier shall not allow us to return them for credit. In the event that we do accept Goods returned for credit we may retain a reasonable fee not exceeding 15% of the value of the returned Goods as a handling charge.
8. Title and Security
8.1 Title in any Goods supplied by us passes to you only when you have made payment in full for the Works and all other sums payable by you to us. To secure payment for the Goods and any other monies owed by you to us, you grant us:
(a) a purchase monies security interest in the Goods, any structure or product into which the Goods are incorporated or comingled and in any proceeds derived from any sale or other commercial exploitation of the Goods and the products into which the Goods have been incorporated or comingled; and
(b) a security interest in all your present and after acquired property.
8.3 Sections 114(1)(a), 133 and 134 of the Personal Property Securities Act 1999 (“PPSA”) shall not apply to the securities granted under these terms and you waive all rights under sections 121, 125, 129, 131, 132 and 148 of the PPSA.
8.4 You irrevocably authorise us to enter any premises you occupy or on which Goods are situated at any reasonable time after default by you or before default if we believe 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. We shall not be liable for any costs, damages, expenses or losses incurred by you 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. We may either resell any repossessed Goods and credit your 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 your account with the invoice value thereof less such sum as we reasonably determine on account of wear and tear, depreciation, obsolescence and costs.
9. Warranties & Liability
9.1 We will carry out the Works to the standard of an experienced and competent electrician and in compliance with statutory and regulatory requirements and all recognised codes of practice that apply in respect of the Works.
9.2 We warrant the labour component of the Works for a period of 12 months from completion. This warranty does not apply however, to:
(a) Any claim notified to us later than 12 months from the completion of the relevant Works or more than 7 days after the alleged defect became apparent; and
(b) the extent any failure or defect is caused by any alteration or attempted repair of the Works by any person other than us or if the Works are subject to abnormal or excessive stress, wear or tear or improper or abnormal use or storage.
9.3 We will pass on to you the benefit of any manufacturer’s warranties for Goods where we are able to do so.
9.4 Where the Works fail to meet any warranty set out in clause 9.1 or 9.2, our liability for such failure shall be limited, at our option, to:
(a) Replacing or repairing any part(s) of the defective Works; or
(b) Refunding to you the charges for the defective Works.
9.5 Subject to the preceding parts of this clause, all terms, conditions, warranties, descriptions, representations, conditions as to fitness or suitability for any purpose, tolerance to any conditions, merchantability or otherwise (whether of a like nature or not) and whether express or implied by law, trade custom or otherwise which are not expressly included in writing in the Agreement (including without limitation, those implied pursuant to the Sale of Goods Act 1908) are expressly excluded to the full extent permitted by law.
9.6 Neither you nor us shall be liable for any consequential or indirect loss nor any loss of profits, revenue, business opportunity, goodwill and/or anticipated savings of any kind whatsoever, arising from the supply of the Works, whether suffered or incurred by us, by you or another person and whether in contract or tort (including negligence) or otherwise.
9.7 If despite clauses 9.4-9.6, we are found liable to pay compensation or damages to You (whether by a court of law, arbitrator or otherwise) then our total and aggregate liability (whether in contract, tort (including negligence) or otherwise) to you under, or related to or arising from, the Works or the Agreement in any way, shall in no circumstances exceed our charges for those Works.
9.8 To the extent you are acquiring the Works for the purpose of a business, the provisions of the Consumer Guarantees Act 1993 and sections 9, 12A and 13 of the Fair Trading Act 1986 do not apply.
10. Health & Safety
10.1 You will notify our representative(s) on arrival about any known health and safety issues present at the Site.
10.2 We reserve the right to suspend delivery of the Works and withdraw our employees, agents and contractors from the Site if we have concerns about health and safety conditions at the Site.
11. Facilities
11.1 Unless otherwise agreed, you will make available for our use on Site the following facilities:
(a) Clean drinking water
(b) Toilet facilities; and
(c) On-site parking for our vehicles.
11.2 In the event you are unable or fail to provide these facilities, we may elect to provide them and invoice you for the costs.
12. Intellectual Property
12.1 Copyright in any drawings, specifications and designs and other written materials we create for you as part of the Works belongs to us. Subject to your payment of all the charges for the Works, you are granted an irrevocable, royalty-free, non-transferable licence to use those materials for the purpose intended in the Proposal.
13. Collection & Use of Information
13.1 You authorise Us to collect, retain and use any information about You, for the purpose of assessing Your credit worthiness, enforcing our rights under this Agreement, or marketing any services provided by Us to any other party.
13.2 You authorise Us to disclose any information obtained to any person for the purposes set out in clause 13.1, including to credit rating agencies.
13.3 Where You are a natural person the authorities under clauses 13.1 and 13.2 are authorities or consents for the purposes of the Privacy Act 1993.
14. Default & Termination
14.1 The following shall constitute defaults by you:
(a) Non-payment of any sum or other amounts payable by the due date or if you intimate that you will not pay any sum by the due date;
(b) You fail to fulfil any of your other obligations under the Agreement or any obligation in any other contract between you and us.
(c) Any Goods are seized by any other of your other creditors or any other creditor intimates that it intends to seize Goods.
(d) You are bankrupted or put into liquidation or a receiver is appointed to any of your assets.
(e) A Court judgment is entered against you and remains unsatisfied for seven days.
(f) In our reasonable opinion, there is a material adverse change in your the financial position.
14.2 Following an event of default, all monies owing by you to us shall be immediately due and payable notwithstanding that the time(s) for payment is yet to arrive and we may (without prejudice to any of our other rights and remedies) do any or all of the following:
(a) Suspend delivery of the Works;
(b) Charge you default interest from the date when payment became due, until the actual date of payment of all amounts owing (including default interest), at a rate of two percent (2%) per calendar month (which shall at our sole discretion compound monthly at such a rate) after as well as before any judgment;
(c) Refer your account to our debt collection agency;
(d) Charge you all collection costs incurred by us, and you agree to indemnify us from and against all costs and disbursements incurred by us in recovering the unpaid Charges (including but not limited to legal costs on a solicitor and own client basis, our collection agency costs, and bank dishonour fees);
(e) Set-off any amounts due from you against any moneys due from us or held in our account to your credit; and
(f) Terminate the Proposal, in which case we shall be released from any further obligation to perform the Works. As such termination shall not however, affect any accrued rights or obligations of the parties or our right to take any other action in relation to your default including the actions set out above.
15. Miscellaneous
15.1 Except in respect of your obligation to pay the purchase price or other monies due under the Agreement, neither party shall be liable for delay or failure to perform its obligations if the cause of the delay or failure is beyond that party’s reasonable control.
15.2 Unless otherwise requested in writing, you consent to receiving e-mails and other communications from us providing you with information about us and goods and services that may be of interest to you.
15.3 If any of your contact details change, you will shall promptly provide us with your new contact details. We will send you notices and other communications to the last known contact details you have provided.
15.4 Failure by us to enforce any of the terms and conditions contained in the Agreement shall not be deemed to be a waiver of any of the rights or obligations we have.
15.5 If any provision of the Agreement 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.
15.6 The Agreement comprises the entire agreement between you and us in respect of the Works and, unless expressly stated otherwise in any Proposal, all prior agreements, warranties, representations, written, verbal or otherwise, are excluded and superseded.
15.7 The Agreement shall be governed by the laws of New Zealand and are subject to the exclusive jurisdiction of the Courts of New Zealand.
Terms of Trade
1. Definitions
1.1 In these Terms, the following words have the meanings given below unless the context requires otherwise.
“Act” means the Construction Contracts Act 2002 and any legislation amending or replacing that act.
“Agreement” means the contractual relationship between You and Us comprised of these terms, any Proposal, order forms and each invoice or other document evidencing or describing the Works.
“Goods” means electrical parts and equipment, consumables, materials and other tangible items supplied or to be supplied by us as part of the Works.
“Proposal” means our quotation, estimate or other offer for the provision of the Works to you.
“Site” means any location or premises under your control where we are to deliver the whole or any part of the Works.
“We”, “Us” and “Our” means Port Electrical Limited and our officers, agents and employees.
“Works” means all Goods and services we provide to you or otherwise carry out on your instruction including (without limitation) any electrical consulting and design services.
“You” and “Your” means you, the customer purchasing goods and services from Us.
2. Terms Apply
2.1 These terms apply to all Works we provide to you.
2.2 In the case of any conflict between these terms and the provisions of any other agreements or documents relating to the Works, unless we have expressly stated in writing that these terms of trade do not apply, these terms shall apply and shall prevail to the extent of any conflict or inconsistency.
3. Proposals & Acceptance
3.1 Where a Proposal is given by us for Works, unless otherwise specified the Proposal shall be valid for 30 days from the date of issue. We reserve the right however, to withdraw or alter the Proposal prior to acceptance by you because of circumstances beyond our reasonable control. For example, if a supplier alters the prices it charges to us for Goods to be supplied as part of the Works.
3.2 An instruction from you, your agents or employees, verbally or in writing to proceed with the Works shall be a binding instruction for us to proceed with the instructed Works and shall mean you have accepted the Proposal and agree to pay us for the Works in accordance with these terms.
3.3 Our Proposal is based on the information you have provided to us. You must ensure that the information you provide is accurate and that you brief us on all material matters relating to the Works. If you do not, delivery or completion of the Works may be delayed or the charges may change.
3.4 We will use reasonable endeavours to meet any target completion date provided in our Proposal or otherwise agreed by us but target completion dates are estimates only and are subject to weather conditions, availability of Goods and materials and any services provided by third parties.
4. Variations
4.1 Sometimes projects may require changes that were not expected at the outset or you may request changes. If this happens we will try to agree on a variation to the Proposal with you (“Variation”). Any agreed Variation (whether written or oral) will amend and become part of the Proposal.
4.2 We may consider in good faith that a Variation is necessary for Us to provide or continue providing the Works to the required standard because of some defect or deficiency relating to your existing equipment, infrastructure or services (“Defect”). In such cases, if You are unwilling to agree to a Variation to the Services to remedy or mitigate such Defect, We may at our discretion terminate the Proposal and cease delivery of the Works. In that event you will immediately pay us for the Works provided to the date of termination.
5. Availability of Credit
5.1 If you require credit, we may require you to complete our credit application form and met any reasonable credit criteria we have prior to the delivery of the Works.
5.2 We reserve the right to:
(a) require payment or part-payment for the Works prior to commencement;
(b) refuse to give you credit; and
(c) amend or withdraw any credit terms or limit previously given to you where you are in breach of the Agreement or where we believe on reasonable grounds you are likely to breach the Agreement.
6. Price and Payment
6.1 Unless otherwise stated, our prices do not include goods and services tax (“GST”). You are required to pay GST in addition to the price.
6.2 Where the Act applies, payment must be made in accordance with the payment terms specified in the Act. Where the Act does not apply, payment for the Works is due by the date shown on the invoice. If no date is shown, then payment is due within 7 days of the date of invoice.
6.3 Where the Works are not completed within a calendar month, a progress claim invoice for the value of the Works completed during that month will be sent at the end of the month.
6.4 You may not deduct, set-off or withhold any amount from any money owing by you to us other than any amount you are entitled to withhold as specified in the Act.
6.5 If you believe we have made an error in an invoice or if you have a genuine dispute in relation to an invoice, you must notify us of that prior to the due date of the invoice. If you do not notify us prior to the due date (time being of the essence) you are deemed to have accepted the charges shown in the invoice as being correct and payable.
7. Risk & Returns
7.1 Goods remain at our risk until delivery to you. Delivery of Goods shall be deemed completed when we or our carrier gives possession of the Goods to you or any agent, employee or contractor or yours.
7.2 Any Goods we purchase specifically for Works and held by us pending delivery to you will be invoiced to you at the end of the month of purchase. Such Goods shall be stored separately, identified as belonging to you and insured under our insurance policy.
7.3 We reserve the right to decline to accept the return of Goods for credit that we have purchased specifically for you where our supplier shall not allow us to return them for credit. In the event that we do accept Goods returned for credit we may retain a reasonable fee not exceeding 15% of the value of the returned Goods as a handling charge.
8. Title and Security
8.1 Title in any Goods supplied by us passes to you only when you have made payment in full for the Works and all other sums payable by you to us. To secure payment for the Goods and any other monies owed by you to us, you grant us:
(a) a purchase monies security interest in the Goods, any structure or product into which the Goods are incorporated or comingled and in any proceeds derived from any sale or other commercial exploitation of the Goods and the products into which the Goods have been incorporated or comingled; and
(b) a security interest in all your present and after acquired property.
8.3 Sections 114(1)(a), 133 and 134 of the Personal Property Securities Act 1999 (“PPSA”) shall not apply to the securities granted under these terms and you waive all rights under sections 121, 125, 129, 131, 132 and 148 of the PPSA.
8.4 You irrevocably authorise us to enter any premises you occupy or on which Goods are situated at any reasonable time after default by you or before default if we believe 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. We shall not be liable for any costs, damages, expenses or losses incurred by you 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. We may either resell any repossessed Goods and credit your 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 your account with the invoice value thereof less such sum as we reasonably determine on account of wear and tear, depreciation, obsolescence and costs.
9. Warranties & Liability
9.1 We will carry out the Works to the standard of an experienced and competent electrician and in compliance with statutory and regulatory requirements and all recognised codes of practice that apply in respect of the Works.
9.2 We warrant the labour component of the Works for a period of 12 months from completion. This warranty does not apply however, to:
(a) Any claim notified to us later than 12 months from the completion of the relevant Works or more than 7 days after the alleged defect became apparent; and
(b) the extent any failure or defect is caused by any alteration or attempted repair of the Works by any person other than us or if the Works are subject to abnormal or excessive stress, wear or tear or improper or abnormal use or storage.
9.3 We will pass on to you the benefit of any manufacturer’s warranties for Goods where we are able to do so.
9.4 Where the Works fail to meet any warranty set out in clause 9.1 or 9.2, our liability for such failure shall be limited, at our option, to:
(a) Replacing or repairing any part(s) of the defective Works; or
(b) Refunding to you the charges for the defective Works.
9.5 Subject to the preceding parts of this clause, all terms, conditions, warranties, descriptions, representations, conditions as to fitness or suitability for any purpose, tolerance to any conditions, merchantability or otherwise (whether of a like nature or not) and whether express or implied by law, trade custom or otherwise which are not expressly included in writing in the Agreement (including without limitation, those implied pursuant to the Sale of Goods Act 1908) are expressly excluded to the full extent permitted by law.
9.6 Neither you nor us shall be liable for any consequential or indirect loss nor any loss of profits, revenue, business opportunity, goodwill and/or anticipated savings of any kind whatsoever, arising from the supply of the Works, whether suffered or incurred by us, by you or another person and whether in contract or tort (including negligence) or otherwise.
9.7 If despite clauses 9.4-9.6, we are found liable to pay compensation or damages to You (whether by a court of law, arbitrator or otherwise) then our total and aggregate liability (whether in contract, tort (including negligence) or otherwise) to you under, or related to or arising from, the Works or the Agreement in any way, shall in no circumstances exceed our charges for those Works.
9.8 To the extent you are acquiring the Works for the purpose of a business, the provisions of the Consumer Guarantees Act 1993 and sections 9, 12A and 13 of the Fair Trading Act 1986 do not apply.
10. Health & Safety
10.1 You will notify our representative(s) on arrival about any known health and safety issues present at the Site.
10.2 We reserve the right to suspend delivery of the Works and withdraw our employees, agents and contractors from the Site if we have concerns about health and safety conditions at the Site.
11. Facilities
11.1 Unless otherwise agreed, you will make available for our use on Site the following facilities:
(a) Clean drinking water
(b) Toilet facilities; and
(c) On-site parking for our vehicles.
11.2 In the event you are unable or fail to provide these facilities, we may elect to provide them and invoice you for the costs.
12. Intellectual Property
12.1 Copyright in any drawings, specifications and designs and other written materials we create for you as part of the Works belongs to us. Subject to your payment of all the charges for the Works, you are granted an irrevocable, royalty-free, non-transferable licence to use those materials for the purpose intended in the Proposal.
13. Collection & Use of Information
13.1 You authorise Us to collect, retain and use any information about You, for the purpose of assessing Your credit worthiness, enforcing our rights under this Agreement, or marketing any services provided by Us to any other party.
13.2 You authorise Us to disclose any information obtained to any person for the purposes set out in clause 13.1, including to credit rating agencies.
13.3 Where You are a natural person the authorities under clauses 13.1 and 13.2 are authorities or consents for the purposes of the Privacy Act 1993.
14. Default & Termination
14.1 The following shall constitute defaults by you:
(a) Non-payment of any sum or other amounts payable by the due date or if you intimate that you will not pay any sum by the due date;
(b) You fail to fulfil any of your other obligations under the Agreement or any obligation in any other contract between you and us.
(c) Any Goods are seized by any other of your other creditors or any other creditor intimates that it intends to seize Goods.
(d) You are bankrupted or put into liquidation or a receiver is appointed to any of your assets.
(e) A Court judgment is entered against you and remains unsatisfied for seven days.
(f) In our reasonable opinion, there is a material adverse change in your the financial position.
14.2 Following an event of default, all monies owing by you to us shall be immediately due and payable notwithstanding that the time(s) for payment is yet to arrive and we may (without prejudice to any of our other rights and remedies) do any or all of the following:
(a) Suspend delivery of the Works;
(b) Charge you default interest from the date when payment became due, until the actual date of payment of all amounts owing (including default interest), at a rate of two percent (2%) per calendar month (which shall at our sole discretion compound monthly at such a rate) after as well as before any judgment;
(c) Refer your account to our debt collection agency;
(d) Charge you all collection costs incurred by us, and you agree to indemnify us from and against all costs and disbursements incurred by us in recovering the unpaid Charges (including but not limited to legal costs on a solicitor and own client basis, our collection agency costs, and bank dishonour fees);
(e) Set-off any amounts due from you against any moneys due from us or held in our account to your credit; and
(f) Terminate the Proposal, in which case we shall be released from any further obligation to perform the Works. As such termination shall not however, affect any accrued rights or obligations of the parties or our right to take any other action in relation to your default including the actions set out above.
15. Miscellaneous
15.1 Except in respect of your obligation to pay the purchase price or other monies due under the Agreement, neither party shall be liable for delay or failure to perform its obligations if the cause of the delay or failure is beyond that party’s reasonable control.
15.2 Unless otherwise requested in writing, you consent to receiving e-mails and other communications from us providing you with information about us and goods and services that may be of interest to you.
15.3 If any of your contact details change, you will shall promptly provide us with your new contact details. We will send you notices and other communications to the last known contact details you have provided.
15.4 Failure by us to enforce any of the terms and conditions contained in the Agreement shall not be deemed to be a waiver of any of the rights or obligations we have.
15.5 If any provision of the Agreement 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.
15.6 The Agreement comprises the entire agreement between you and us in respect of the Works and, unless expressly stated otherwise in any Proposal, all prior agreements, warranties, representations, written, verbal or otherwise, are excluded and superseded.
15.7 The Agreement shall be governed by the laws of New Zealand and are subject to the exclusive jurisdiction of the Courts of New Zealand.