1.1. All Goods and Services supplied by us to you are supplied on these Terms, unless otherwise agreed in writing. By placing an order with us you agree to be bound by these Terms. They form the entire agreement between us.
1.2. Where we have entered into a separate written supply agreement or service contract with you, these Terms shall also apply except to the extent that there is any inconsistency between these Terms and the separate supply agreement or service contract, in which case the relevant provisions of the supply agreement or service contract shall prevail.
1.3. These Terms may be modified or added to by specific Terms specified by us in our quotation.
2. DEFINITIONS
2.1. In these Terms:
2.1.1. Goods means any goods provided, supplied and/or manufactured by us;
2.1.2. Loss includes loss of profits, savings, revenue or data, and any other claim, damage, loss, liability and cost, including legal costs on a solicitor and own client basis;
2.1.3. PPSA means the Personal Property Securities Act 1999;
2.1.4. Quotation means a written offer from us to you to supply Goods and/or Services as explained under ‘Pricing the Services’;
2.1.5. Services means any services performed by us to you;
2.1.6. Terms means the terms and conditions set out in this document, including any variation to these Terms; and
2.1.7. Us and we means The Electrical Company Wellington Limited.
3. PRICING THE SERVICES
3.1. You can choose from our 3 Quotations: a fixed price quote, an estimate of costs or time on the job.
3.2. If you choose a fixed price quote then:
3.2.1. Our labour cost component is fixed unless the information you have provided to us is inaccurate or incomplete. If that occurs then any additional time we spend to complete the Services and/or deliver the Goods will be charged at our current hourly rates; and
3.2.2. The fixed price will be valid for 30 days from the date of issue unless previously withdrawn.
3.3. If you choose an estimate of costs you acknowledge that it is an estimate only of the time it will take us to complete the Services and/or deliver the Goods at our current hourly rates based on the information you have provided. As such our final invoice may by less than or exceed the estimate provided.
3.4. If you choose time on the job then we will charge for all our labour to complete the Services and/or deliver the Goods at our current hourly rates.
3.5. Any cost we provide under any Quotation for any Goods and any rates of exchange, insurance, freight, duty, taxes and other cost items over which we have no control are estimates only based on the current retail rates provided to us by the supplier. Any increase in their costs will be added to the final invoice and payable by you.
3.6. If any Goods included in a Quotation are not available when required, we may substitute similar products with your approval. The price will be adjusted accordingly and reflected in the final invoice.
3.7. We reserve the irrevocable right to withdraw any Quotation prior to commencing the Services and/or delivering the Goods.
3.8. Our Quotation must be accepted by you before we will commence the Services. Once it has been accepted then any variation shall not be valid unless we agree to it in writing.
4. PRICES
4.1. Our current hourly rates are $60 + GST per hour for normal business hours and $87 + GST per hour for after hours. Unless otherwise stated GST is not included in our prices for either Goods or Services and will be added to the final invoice.
4.2. A vehicle/service charge will be added to all Quotations and final invoices produced by us, unless otherwise agreed. This charge covers costs associated with our vehicle fleet including but not limited to; fuel, road user charges, and general warranty and maintenance costs.
4.3. Labour costs include any time spent travelling to and from the workshop to you, including any time taken to procure any Goods required. Labour costs also include administration in relation to the job.
4.4. We charge a minimum of one hour labour for any Service provided. Thereafter any part hours up to 30 minutes will be charged at half the hourly rates. Any part hours beyond 30 minutes will be charged at the full hourly rate.
4.5. If any local authority requirements change while we are performing the job, you will be responsible for any resulting cost increases.
5. PAYMENTS
5.1. You will pay a deposit of 50% of the Quotation before we start where the value of the Services and/or Goods exceeds $5,000, unless we agree otherwise in writing. Payment shall be made within 7 working days of the date of our initial invoice.
5.2. We will bill you either monthly or at the end of the job at our discretion. Payment must be received within 7 working days from the date of our invoice, unless we have agreed otherwise. Payments may be made to us by cheque payable to us or by direct credit to our bank account number that is provided on the invoice.
5.3. If any cheque is dishonoured you will pay us any dishonour fees incurred by us.
5.4. We may stop work if any payment is not received on time. This will not entitle you to cancel the Services and/or Goods and you will be fully liable for the entire Quotation.
5.5. We will be entitled to charge you interest on all amounts outstanding after the due date until payment is received by us in full, at a rate of up to 5% per month, compounding.
5.6. We may also recover from you a $50 administration fee and all legal and debt collection costs, including legal costs on a solicitor/client basis, incurred by us in enforcing or attempting to enforce our rights under these Terms. For example our debt collection agent may charge you a fee equal to 25% of the outstanding amount but not less than $25.00. If the total debt collection costs, including legal costs, exceed the amount set out above, you must pay such additional costs. Our debt collection agent may enforce this clause under the Agreements (Privity) Act 1982.
5.7. Payments received from you will be applied first towards any accumulated administration fees and collection costs, and then any surplus will be applied towards payment of the overdue amount in order of age (starting with the oldest invoice).
5.8. You may not set off any payments owing to us against any payments owed by us to you or any claims that you may have against us.
5.9. In accepting any payment from you, we will not be bound by any condition or qualification that you attach to such payments. Any payments expressed to be in full and final settlement will only be accepted by us if we communicate our specific acceptance in writing to you of those terms.
5.10. We will cease work immediately on any payment from you becoming overdue. We will not be responsible or liable for any delay whatsoever that this may cause.
6. MATERIALS SUPPLIED BY YOU
6.1. Where you have chosen not to use goods or materials that are either (a) provided, supplied or manufactured by us (i.e. Goods as defined above) or (b) one of the brands recommended by us and purchased from a recommended retailer (each of (a) and (b) being “Recommended Materials”) then we do not know if those materials meet the requirements of the Building Act 2004. Consequently if that occurs you agree and acknowledge that:
6.1.1. we have given you the option of purchasing Recommended Materials instead of those products;
6.1.2. we have explained to you the risks of using those products;
6.1.3. you have nevertheless decided to purchase those products and wish us to use those products in providing our Services;
6.1.4. while we are not aware that those products do not comply with the Building Act 2004, we cannot reasonably be satisfied that they do so;
6.1.5. our Services do not include the provision of those products and you are not relying on our skill and judgment in the selection of those products;
6.1.6. in addition to the above and to the extent permitted by law, you will not hold us liable for any failures, costs or losses arising from those products. For the avoidance of doubt, this exclusion of liability does not apply to the guarantees under the Consumer Guarantees Act 1993 (except to the extent you act in trade) or any warranties that apply under the Building Act 2004); and
6.1.7. these acknowledgments override any other provision of these Terms.
6.2. We may reject any materials supplied or specified by you or your builder which we consider to be unsuitable. Additional cost incurred by us if materials are found to be unsuitable during the provision of the Services may be charged at our hourly rate.
6.3. We shall have no liability in respect of any Services and/or Goods of less than reasonably satisfactory quality as a result of defects in or the unsuitability of materials supplied or specified by you or your builder.
6.4. We shall assume that quantities of materials supplied by you or your builder shall be adequate to cover normal spoilage accordingly. If the quantities of materials supplied are not sufficient to cover normal spoilage (Insufficient Supply) then we shall have no liability for any shortfall in quantity to the extent that such shortfall arises as a result of such Insufficient Supply.
7. DELIVERY
7.1. Unless otherwise agreed by us prior to delivery, delivery of the Goods will be between the hours of 8:00am and 4:30pm Monday to Friday (excluding statutory holidays). We may, if you request, arrange for Goods to be delivered by other means or at other times, but will be entitled to charge you for any additional costs that we may incur.
7.2. We will endeavour to have the Goods delivered on the agreed delivery dates but will not be held liable for late delivery. Late delivery does not entitle you to cancel any order or part order.
7.3. Delivery will be deemed to have been made when the Goods arrive at the delivery point agreed with you or if you are to arrange delivery of the Goods, when the Goods are available for collection by you. You or your authorised representative must sign the copy of the delivery docket or packing slip before the Goods are unloaded or collected.
7.4. All claims for errors in delivery or for Goods damaged in transit must be made to us within two days of delivery in respect of Goods delivered by courier, and within seven days of delivery in respect of Goods delivered by any other means or Goods collected by the Customer, and in accordance with the procedures advised by us from time to time.
7.5. If you fail or refuse to take delivery of any Goods at an agreed delivery time, we may (without limiting any other rights or remedies we may have) charge you for any expenses or additional costs incurred by us as a result of the delay.
8. YOUR OBLIGATIONS
8.1. You must provide to us all necessary plans, specifications and other information required for us to provide the Services and/or deliver the Goods. We are entitled to rely on the accuracy of that information provided and shall not be obliged to check it.
8.2. You will provide at no cost to us full access to the site, and all necessary power and any other services that we specify are required. These include but are not limited to passenger lifts, cranes, hoists and builder’s scaffolding. These must comply with all legal requirements including health and safety legislation and regulations. If convenient access is not supplied for any reason we may charge you the resulting additional costs incurred including time wasted at our current hourly rates.
8.3. You warrant that you have the right to grant us access to the site to carry out the Services and/or deliver the Goods. If the site is sold before we receive full payment, you warrant that the sale proceeds will be held on trust for us to the extent of any amounts you owe us under these Terms.
8.4. You will be responsible for pegging the boundaries of the site if required to provide the Services.
8.5. You will be responsible for obtaining all local authority consents and other necessary authorities for the performance of the Services and/or delivery of the Goods and will provide copies of those to us on our request. We will assist with that if required but we will charge a fee for doing so based on our current hourly rates. If any consent is refused, you will be liable for our costs incurred up to that point.
8.6. Where a consent is required, and you have failed to obtain it, we may immediately cease work until such time as the consent is granted. We will be immediately entitled to charge for all work undertaken to the date that work ceased.
8.7. If you engage other contractors while we are performing the Services and/or delivering the Goods, you will be responsible for co-ordinating their work so as not to interfere with our work. Should we be delayed due to the actions of your other contractors we will charge an additional fee for lost time based on our hourly rate.
8.8. If an outside designer is used for the Services, we will insist on dealing only with the designer as your representative, including in relation to the authorisation of any variations to the work. You will be responsible for all of the designer’s fees.
9. SECURITY INTEREST, TITLE AND RISK
9.1. You grant to us a security interest in the Goods we supply as security for all amounts owing to us and the performance of your obligations under these Terms.
9.2. Title in the Goods shall remain with us until there are no longer any amounts owing to us for those Goods and/or Services we have provided. You acknowledge receipt of these Terms and agree that you will execute all documents required by us to maintain, register and enforce our security interest in respect of the Goods. The security interest extends to proceeds of sale of the Goods and to any product into which the Goods are incorporated or co-mingled.
9.3. If we register the security interest created by these Terms under the PPSA, you waive your rights to receive a copy of the verification statements in terms of section 148 of the PPSA and also waive your rights under sections 121 and 131 of the PPSA. You and we also contract out of Part 9 of the PPSA to the extent that the rights and obligations contained in sections 114, 125, 129, 132, 133 and 134 of that part of the PPSA do not apply as between you and us.
9.4. You agree that:
9.4.1. you will, upon receiving a written request from us and at your own cost and expense, promptly deliver all or any of the Goods to us. If you fail to deliver the Goods upon request, we may at any time enter into any place where the Goods are located and remove the Goods. In the case of installed Goods we will not be responsible for any damage caused in both entering the premises where the Goods are thought to be held or in the removal of any installed Goods;
9.4.2. we may sell all or any of the Goods without giving prior notice of the sale to you;
9.4.3. you shall immediately notify us of any change in your name, address or contact person details;
9.4.4. if you resell the Goods or any part of them or if they have become constituent parts of any other Goods sold by you before payment is made to us for them, then you shall ensure that you hold the sale proceeds for an account to us;
9.4.5. if the amount owing to us as a result of such resale becomes a book debt in the accounts of you, then you shall, if called upon to do so by us, assign to us the debt and all other rights and remedies it might have in respect to the debt;
and 9.4.6. we will take reasonable precautions to preserve the Goods pending delivery to you. Notwithstanding this, the risk in the Goods passes to you from the time the Goods leave our premises.
10. CONSUMER LEGISLATION
10.1. Where Goods and/or Services are being supplied for the purposes of a business, you agree that the Consumer Guarantees Act 1993 will not apply.
10.2. Where you are a supplier (as defined in the Consumer Guarantees Act 1993) you covenant with us that you will not make or allow to be made in respect of the Goods supplied any statements or representations as to quality or description other than those made by us. You hereby indemnify and will keep us indemnified against any claims, losses, damages and costs which may be made against us in respect of statements or representations which are made contrary to the provisions of this clause.
11. WARRANTIES
11.1. To the extent permitted by law, all statutory, express or implied warranties by us including, without limitation, implied warranties of merchantability and fitness for any particular purpose are expressly excluded except:
11.1.1. we will remedy any defective workmanship in the Services provided by us that is reported by you to us within 90 days of the Services being completed. This will be done during normal business days within the preceding 30 day period; and
11.1.2. we will repair or replace any faulty Goods that is reported by you to us within 90 days of the delivery of those Goods. This will be done during normal business days within the preceding 30 day period.
11.2. Warranties offered by us do not cover acts of God, and other circumstances beyond the reasonable control of us including (without limitation) any act (whether criminal or otherwise) by any third party.
11.3. Any warranty offered by us shall become null and void if payment for those Goods and/or Services, or future additions or service to them, becomes overdue. Notification of the cessation of warranty is not required to be given by us.
12. LIMITATION OF LIABILITY
12.1. The Consumer Guarantees Act 1993, the Fair Trading Act 1986 and other statutes may imply warranties or conditions or impose obligations upon us which cannot by law (or which can only to a limited extent by law) be excluded or modified. In respect of any such implied warranties, conditions or terms imposed on us, our liability shall, where it is allowed, be excluded or if not able to be excluded only apply to the minimum extent required by the relevant statute. Except as otherwise provided by this clause we shall not be liable for any Loss, arising from the supply of Goods and/or Services by us to you, including consequential loss whether suffered or incurred by you or another person and whether in agreement or tort (including negligence) or otherwise and irrespective of whether such Loss arises directly or indirectly from Goods and/or Services provided by us to you.
12.2. Any liability of us in respect of all claims for Loss, damage or injury arising from a breach of any of our obligations under these Terms or from any act or omission by us is limited, in each case, to the price of the affected Goods and/or Services as stated in the Quotation.
12.3. No action arising out of the supply of Goods and/or Services by us, regardless of form, may be brought more than 6 calendar months after you becomes aware, or reasonably ought to have become aware, of the circumstances giving rise to the action.
13. INTELLECTUAL PROPERTY
13.1. All intellectual property rights in the Goods or arising out of the performance of the Services are and shall remain the property of us. You warrant that any design or drawing provided by you does not infringe any intellectual property rights of any other person.
14. UNCONTROLLABLE EVENTS
14.1. We shall not be liable for any failure or delay in performance if it is caused by circumstances beyond our reasonable control, including weather and any labour dispute between our employees. Costs arising from such delay or stoppage will be borne by the party incurring those costs.
15. PERSONAL INFORMATION
15.1. You authorises us to collect, retain and use any information about you, for the purpose of assessing your credit worthiness, enforcing any rights under this agreement, or marketing any Goods and/or Services provided by us to any other party. You authorises us to disclose any information obtained to any person for the purposes set out in this clause. Where you are a natural person the authorities under this clause are authorities or consents for the purposes of the Privacy Act 1993.
16. HEALTH AND SAFETY AT WORK ACT 2015
16.1. If you are a ‘person conducting business or undertaking’ as defined under Health and Safety at Work Act 2015 then you:
16.1.1. shall be responsible for compliance with that Act in respect of the site and shall advise us prior to commencement of any work requiring installation of any hazards on the site;
16.1.2. are obliged to ensure that all our staff are informed of your health and safety procedures; and
16.1.3. indemnify us for any Loss we incur due to any breach of that Act by you or any of your employees, contractors, agents or officers.
17. DISPUTES
17.1. In the event of any dispute arising between us, such dispute shall in the first instance be referred to mediation for resolution.
17.2. In the event that resolution by such manner is not achieved to the satisfaction of both parties within 30 days of referral to mediation then either party may take legal action to resolve the dispute.
17.3. Nothing in this clause prevents us from taking legal action to enforce payment of any debt due, nor where required to seek interlocutory or injunctive relief.
18. TERMINATION
18.1. You may give notice to us at any time that you no longer wish to receive Goods and/or Services from us. If this occurs, you must immediately pay all fees for work done, and any other charges incurred, up until the date of termination.
18.2. Without prejudice to any of our other remedies, if any account payable by you to us is overdue or you become insolvent, commit an act of bankruptcy, enter into or are likely to enter into any arrangement with your creditors or in the case of a company does any act that would render it liable to be liquidated, or if a resolution is passed or proceedings commenced for the liquidation or voluntary administration of you or if a receiver is appointed in respect of all or part of your assets, then:
18.2.1. We may cancel any outstanding order or arrangement with you; and
18.2.2. Any moneys payable by you to us whether due for payment or not, will become immediately due and payable.
19. NOTICES
19.1. All notices or other communications to be given under these Terms will be given at your last known place of address or by sending the notice to your last known email address.
20. GENERAL
20.1. No waiver of any breach of, or failure to enforce, any provision of these Terms at any time by any party in any way affects, limits, or waives the right of such party thereafter to enforce compliance with these Terms.
20.2. We may at any time and in our sole discretion vary these Terms with immediate effect provided that we shall not make any variation to the nature or extent of the security interest granted by you under these Terms without your written consent. We may notify you by delivering to you a notice of amendment and receipt of that will be deemed acceptance by you of these Terms as amended.
20.3. These Terms record the entire agreement between us and prevail over any earlier agreement, written or oral, which are of no further effect.
20.4. Each party will promptly do everything reasonable required to give effect to these Terms.
20.5. If any part of these Terms is held to be invalid or unenforceable by any judicial or other competent authority but would be valid or enforceable if some part of the provision were modified or deleted, the provision in question will apply with the minimum modification or deletion necessary to make it valid and enforceable, and the other provisions in these Terms will be unimpaired and will remain in force and effect.
20.6. These Terms are governed by and will be construed in accordance with the laws of New Zealand. Any dispute will be determined by the exclusion jurisdiction of the New Zealand Courts.
20.7. These Terms shall remain in place between us and you for as long as you are in usable possession of the Goods or Services.
