Terms of trade
Terms of Service
1.1 “Ecoelectric” means Ecoelectric 2016 Limited, its successors and assigns or any person acting on behalf of and with the authority of Ecoelectric 2016 Limited.
1.2 “Client” means the person/s person/s requesting Ecoelectric to provide the Services as specified in any invoice, document or order, and if there is more than one Client is a reference to each Client jointly and severally.
1.3 “Services” means all Services provided by Ecoelectric to the Client at the Client’s request from time to time, and where the context so permits the terms ‘Services’ or ‘Goods’ shall be interchangeable for the other.
1.4 “Goods” means all Goods provided by Ecoelectric to the Client, either separately, or as part of the Services.
1.5 “Price” means the price payable for the Services as agreed between Ecoelectric and the Client in accordance with clause 4 below.
2.1 The Client is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Client places an order for, or accepts Services provided by Ecoelectric.
2.2 These terms and conditions may only be amended with Ecoelectric’ consent in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the Client and Ecoelectric.
3. Change in Control
3.1 The Client shall give Ecoelectric not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client and/or any other change in the Client’s details (including but not limited to, changes in the Client’s name, address, contact phone or fax number/s, or business practice). The Client shall be liable for any loss incurred by Ecoelectric as a result of the Client’s failure to comply with this clause.
4. Price and Payment
4.1 The Client accepts and acknowledges that the following rates shall apply under all circumstances. The following rates may also be used for the purposes of calculating any proposed Service by Ecoelectric;
(a) labour costs of sixty dollars ($70.00) per hour will apply;
(b) travel costs of fifty cents ($0.50) per Kilometre travelled will apply. The distance travelled by Ecoelectric’ is at Ecoelectric’ sole discretion;
(c) a call-out fee of ninety dollars ($90.00) plus travel costs will apply during normal working hours. If the Service is required outside normal working hours of 0700 and 1700hours, a callout fee of one hundred and eighty dollars ($180.00) will apply.
4.2 At Ecoelectric’ sole discretion the Price shall be either:
(a) as indicated on any invoice provided by Ecoelectric to the Client;
(b) Ecoelectric’ estimated price (subject to clause 4.3), which shall not be deemed binding upon Ecoelectric as the actual Price can only be determined upon provision of the Services. Ecoelectric undertakes to keep the Client informed should the actual Price look likely to exceed the original estimate;
(c) Ecoelectric’ quoted price (subject to clause 4.3), which shall be binding upon Ecoelectric provided that the Client shall accept Ecoelectric’ quotation in writing within thirty (30) days of issue.
4.3 Ecoelectric reserves the right to change the Price:
(a) if a variation to the Goods which are to be provided is requested; or
(b) if a variation to the Services originally scheduled (including any applicable instructions or specifications) is requested; or
(c) where additional Services are required due to the discovery of hidden or unidentifiable difficulties and/or faults, which are only discovered on commencement of the Services; or
(d) in the event of increases to Ecoelectric in the cost of labour or materials and/or Goods, due to price or currency exchange fluctuations , which are beyond Ecoelectric’ control.
4.4 At Ecoelectric’ sole discretion, a non-refundable deposit of fifty percent (50%) shall be required upon request by Ecoelectric.
4.5 Time for payment for the Services being of the essence, the Price will be payable by the Client on the date/s determined by Ecoelectric, which may be:
(a) on provision of the Services;
(b) the date specified on any invoice or other form as being the date for payment; or
(c) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Client by Ecoelectric.
4.6 Payment may be made by cash, bank cheque, electronic/on-line banking, or by any other method as agreed to between the Client and Ecoelectric.
4.7 Unless otherwise stated the Price does not include GST. In addition to the Price the Client must pay to Ecoelectric an amount equal to any GST Ecoelectric must pay for any provision of Services by Ecoelectric under this or any other agreement. The Client must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Client pays the Price. In addition the Client must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.
4.8 The Client accepts and acknowledges that any overdue payments are subject to clause 16.
5. Dimensions, Plans and Specifications
5.1 Unless Ecoelectric and the Client agree otherwise in writing, all customary industry tolerances shall apply to the dimensions and measurements of the Goods.
5.2 Ecoelectric shall be entitled to rely on the accuracy of any plans, specifications and other information provided by the Client, and it shall be the responsibility of the Client to verify the accuracy of the any estimated measurements and quantities, before the Client places an order based on such estimate or accepts such quotation.
6. Consents, Inspection and Network Costs
6.1 The Client is responsible for obtaining any consent or other authority necessary for the work, and will provide that to us on request.
6.2 The Client acknowledges and accepts that certain electrical work requires additional certification. Where a Record of Inspection or Certificate of Verification is required, the Client accepts that all costs incurred are additional to the Price.
6.3 The Client acknowledges and accepts that where new mains or alterations to mains are required, additional costs may occur and will be covered by the Client. The additional cost will vary dependant on the local electricity network and lines company.
7.1 If Ecoelectric retains ownership of the Goods under clause 8, then all risk for the Goods shall immediately pass to the Client on delivery, and shall remain with the Client until such time as Ecoelectric may repossess the Goods, and the Client must insure the Goods on, or before, delivery.
7.2 Ecoelectric reserves its right to seek compensation or damages for any damage, destruction or loss suffered in relation to the Goods as a result of the Client’s failure to insure in accordance with clause 7.1.
7.3 If the Client requests Ecoelectric to leave the Goods outside Ecoelectric’ premises for collection, or to deliver the Goods to an unattended location, then such Goods shall be left at the Client’s sole risk.
8.1 Ecoelectric and the Client agree that ownership of the Goods shall not pass until:
(a) the Client has paid Ecoelectric all amounts owing to Ecoelectric; and
(b) the Client has met all of its other obligations to Ecoelectric.
8.2 Receipt by Ecoelectric of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised.
8.3 It is further agreed that:
(a) until ownership of the Goods passes to the Client in accordance with clause 8.1 that the Client is only a bailee of the Goods and must return the Goods to Ecoelectric on request.
(b) the Client holds the benefit of the Client’s insurance of the Goods on trust for Ecoelectric and must pay to Ecoelectric the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed.
(c) the Client must not sell, dispose, or otherwise part with possession of the Goods other than in the ordinary course of business and for market value. If the Client sells, disposes or parts with possession of the Goods then the Client must hold the proceeds of any such act on trust for Ecoelectric and must pay or deliver the proceeds to Ecoelectric on demand.
(d) the Client should not convert or process the Goods or intermix them with other Goods, but if the Client does so then the Client holds the resulting product on trust for the benefit of Ecoelectric and must sell, dispose of or return the resulting product to Ecoelectric as it so directs.
(e) the Client irrevocably authorises Ecoelectric to enter any premises where Ecoelectric believes the Goods are kept and recover possession of the Goods.
(f) Ecoelectric may recover possession of any Goods in transit whether or not delivery has occurred.
(g) the Client shall not charge or grant an encumbrance over the Goods, nor grant nor otherwise give away any interest in the Goods while they remain the property of Ecoelectric.
(h) Ecoelectric may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Client.
9. Personal Property Securities Act 1999 (“PPSA”)
9.1 Upon assenting to these terms and conditions in writing the Client acknowledges and agrees that:
(a) these terms and conditions constitute a security agreement for the purposes of the PPSA; and
(b) a security interest is taken in all Goods previously supplied by Ecoelectric to the Client (if any) and all Goods that will be supplied in the future by Ecoelectric to the Client.
9.2 The Client undertakes to:
(a) sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which Ecoelectric may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register;
(b) indemnify, and upon demand reimburse, Ecoelectric for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register or releasing any Goods charged thereby;
(c) not register a financing change statement or a change demand without the prior written consent of Ecoelectric; and
(d) immediately advise Ecoelectric of any material change in its business practices of selling the Goods which would result in a change in the nature of proceeds derived from such sales.
9.3 Ecoelectric and the Client agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms and conditions.
9.4 The Client waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA.
9.5 Unless otherwise agreed to in writing by Ecoelectric, the Client waives its right to receive a verification statement in accordance with section 148 of the PPSA.
9.6 The Client shall unconditionally ratify any actions taken by Ecoelectric under clauses 9.1 to 9.5.
10. Security and Charge
10.1 In consideration of Ecoelectric agreeing to provide the Services, the Client charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Client either now or in the future, to secure the performance by the Client of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
10.2 The Client indemnifies Ecoelectric from and against all Ecoelectric’ costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising Ecoelectric’ rights under this clause.
10.3 The Client irrevocably appoints Ecoelectric and each director of Ecoelectric as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 10 including, but not limited to, signing any document on the Client’s behalf.
11. Client’s Disclaimer
12.1 The Client hereby disclaims any right to rescind, or cancel any contract with Ecoelectric or to sue for damages or to claim restitution arising out of any inadvertent misrepresentation made to the Client by Ecoelectric and the Client acknowledges that the Goods are bought relying solely upon the Client’s skill and judgment.
12.1 The Client shall inspect the Goods on delivery and shall within seven (7) days of delivery (time being of the essence) notify Ecoelectric of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Client shall afford Ecoelectric an opportunity to inspect the Goods within a reasonable time following delivery if the Client believes the Goods are defective in any way. If the Client shall fail to comply with these provisions the Goods shall be presumed to be free from any defect or damage. For defective Goods, which Ecoelectric has agreed in writing that the Client is entitled to reject, Ecoelectric’ liability is limited to either (at Ecoelectric’ discretion) replacing the Goods or repairing the Goods.
12.2 Goods will not be accepted for return other than in accordance with 13.1 above.
12.3 Ecoelectric shall not be liable for any claims (including, but not limited to any warranty claim or claim for defects), demands, losses, damages, costs and expenses caused or arising from the incorrect installation of those Goods, or where the Goods are used for any purpose other than the intended application.
12.4 The Client acknowledges that Ecoelectric is only responsible for parts that are replaced by Ecoelectric and does not at any stage accept any liability in respect of previous services and/or goods supplied by any other third party that subsequently fail and found to be the source of the failure, the Client agrees to indemnify Ecoelectric against any loss or damage to the Goods, or caused by the Goods, or any part thereof howsoever arising.
13.1 For Goods not manufactured by Ecoelectric, the warranty shall be the current warranty provided by the manufacturer of the Goods. Ecoelectric shall not be bound by nor be responsible for any term, condition, representation or warranty other than that which is given by the manufacturer of the Goods.
13.2 In the case of second hand Goods, the Client acknowledges that he has had full opportunity to inspect the same and that he accepts the same with all faults and that no warranty is given by Ecoelectric as to the quality or suitability for any purpose and any implied warranty, statutory or otherwise, is expressly excluded. Ecoelectric shall not be responsible for any loss or damage to the Goods, or caused by the Goods, or any part thereof however arising.
14. Consumer Guarantees Act 1993
15.1 If the Client is acquiring Goods for the purposes of a trade or business, the Client acknowledges that the provisions of the Consumer Guarantees Act 1993 do not apply to the supply of Goods by Ecoelectric to the Client.
15. Intellectual Property
15.1 Where Ecoelectric has designed, drawn or developed Goods for the Client, then the copyright in any designs and drawings and documents shall remain the property of Ecoelectric.
15.2 The Client warrants that all designs, specifications or instructions given to Ecoelectric will not cause Ecoelectric to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify Ecoelectric against any action taken by a third party against Ecoelectric in respect of any such infringement.
15.3 The Client agrees that Ecoelectric may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings, photographs, or Goods which Ecoelectric has created for the Client.
16. Default and Consequences of Default
16.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of ten percent (10%) per calendar month (and at Ecoelectric’ sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
16.2 If the Client owes Ecoelectric any money the Client shall indemnify Ecoelectric from and against all costs and disbursements incurred by Ecoelectric in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, Ecoelectric’ collection agency costs, and bank dishonour fees).
16.3 Ecoelectric may, at their sole discretion, charge the Client a late payment fee of up to ten percent (10%) of any overdue amount (up to a maximum of two hundred dollars ($200.00)), which shall be levied for administration fees, and which shall become immediately due and payable.
16.4 Without prejudice to any other remedies Ecoelectric may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions Ecoelectric may suspend or terminate the provision of Services to the Client. Ecoelectric will not be liable to the Client for any loss or damage the Client suffers because Ecoelectric has exercised its rights under this clause.
16.5 Without prejudice to Ecoelectric’ other remedies at law Ecoelectric shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to Ecoelectric shall, whether or not due for payment, become immediately payable if:
(a) any money payable to Ecoelectric becomes overdue, or in Ecoelectric’ opinion the Client will be unable to make a payment when it falls due;
(b) the Client 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, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.
17.1 Ecoelectric may cancel any contract to which these terms and conditions apply or cancel provision of the Services at any time before the Services are delivered by giving written notice to the Client. On giving such notice Ecoelectric shall repay to the Client any sums paid in respect of the Price, less any amounts owing by the Client to Ecoelectric for Services already provided. Ecoelectric shall not be liable for any loss or damage whatsoever arising from such cancellation.
17.2 In the event that the Client cancels the Services, the Client shall be liable for any and all loss incurred (whether direct or indirect) by Ecoelectric as a direct result of the cancellation (including, but not limited to, any loss of profits).
17.3 Cancellation of orders for Goods made to the Client’s specifications, non-stocklist items or modified Goods, will definitely not be accepted once an order has been placed.
18. Privacy Act 1993
18.1 The Client authorises Ecoelectric or Ecoelectric’ agent to:
(a) access, collect, retain and use any information about the Client;
(i) (including any overdue fines balance information held by the Ministry of Justice) for the purpose of assessing the Client’s creditworthiness; or
(ii) for the purpose of marketing products and services to the Client.
(b) disclose information about the Client, whether collected by Ecoelectric from the Client directly or obtained by Ecoelectric from any other source, to any other credit provider or any credit reporting agency for the purposes of providing or obtaining a credit reference, debt collection or notifying a default by the Client.
18.2 Where the Client is an individual the authorities under clause 19.1 are authorities or consents for the purposes of the Privacy Act 1993.
18.3 The Client shall have the right to request Ecoelectric for a copy of the information about the Client retained by Ecoelectric and the right to request Ecoelectric to correct any incorrect information about the Client held by Ecoelectric.
19. Unpaid Seller’s Rights
19.1 Where the Client has left any item with Ecoelectric for inspection, repair, modification, exchange or for Ecoelectric to perform any other service in relation to the item and Ecoelectric has:
(a) deemed it uneconomical to repair the item; and/or
(b) not received or been tendered the whole of any moneys owing to it by the Client; then
(c) Ecoelectric shall have (until all moneys owing to Ecoelectric are paid):
(i) a lien on the item; and
(ii) the right to retain or sell the item, and such sale may be undertaken in accordance with the Uncollected Goods Act 1995, and any other legislation which may be applicable for the sale or disposal of uncollected goods; and
(iii) the right to retain all of the proceeds of the sale of the item in payment of the Price and any interest due to Ecoelectric and any costs associated with such sale; and
(iv) where the proceeds of the sale are less than the whole of any moneys owing to Ecoelectric, the Client shall remain liable for the balance, which shall be come immediately due and payable.
19.2 The lien of Ecoelectric shall continue despite the commencement of proceedings, or judgment for any moneys owing to Ecoelectric having been obtained against the Client.
20.1 The failure by Ecoelectric to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect Ecoelectric’ right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
20.2 These terms and conditions and any contract to which they apply shall be governed by the laws of New Zealand and are subject to the jurisdiction of the Palmerston North Court.
20.3 Ecoelectric shall be under no liability whatsoever to the Client for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by Ecoelectric of these terms and conditions (alternatively Ecoelectric’ liability shall be limited to damages which under no circumstances shall exceed the Price of the Goods).
20.4 The Client shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Client by Ecoelectric nor to withhold payment of any invoice because part of that invoice is in dispute.
20.5 Ecoelectric may license or sub-contract all or any part of its rights and obligations without the Client’s consent.
20.6 The Client agrees that Ecoelectric may amend these terms and conditions at any time. If Ecoelectric makes a change to these terms and conditions, then that change will take effect from the date on which Ecoelectric notifies the Client of such change. The Client will be taken to have accepted such changes if the Client makes a further request for Ecoelectric to provide Goods to the Client.
20.7 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.
20.8 The Client warrants that it has the power to enter into this agreement and has obtained all necessary authorisations to allow it to do so, it is not insolvent and that this agreement creates binding and valid legal obligations on it.
Ecoelectric 2016 Limited