Terms and Conditions of Trade

Effective 01 February 2018

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1 Application of Terms

1.1 All Goods and/or Services provided to the Customer by Supplier are subject to the following terms and conditions ("Terms"). These Terms, together with any letter of offer, works requisition, quotation and/or similar order form or Supplier invoice, in each case supplied by Supplier (each being “Supplemental Terms”), constitute the entire agreement between the Customer and Supplier for the Goods provided and/or Services performed. Each accepted order will constitute a separate agreement for the supply of the relevant Goods and/or Services. All Goods and/or Services provided to the Customer by Supplier are subject to these Terms.

1.2 Supplier may amend these Terms from time to time by notice to Customer in writing (including by email) and by publication on Supplier’s website at www.aquaheat.co.nz. A notice of the fact of amendments directing the Customer to Supplier’s website shall be sufficient notice for the purposes of these Terms. The change will take effect from the time specified. By continuing to receive any Goods and/or Services or by placing any order the Customer shall be deemed to have accepted the updated Terms.

1.3 If the Customer orders or accepts any Goods or Services, the Customer will be deemed to have accepted these Terms without qualification. To the extent that the Customer executes any Supplemental Terms, if the Customer is a company or trust, each director or trustee (as the case may be) of the Customer warrants that he/she is authorised to enter into the relevant Supplemental Terms on behalf of the Customer and has the full power, capacity and authority to execute, deliver and perform its obligations in accordance with these Terms.

1.4 Nothing in these Terms affects any rights that the Customer may have as a “consumer” under the Fair Trading Act 1986 (“FTA”) and the Consumer Guarantees Act 1993 (“CGA”). A Customer will not be a “consumer” if the Customer acquires the Goods and/or Services, or holds itself out as acquiring the Goods and/or Services, in trade.

1.5 If these Terms or any Supplemental Terms are a “construction contract” or relate to “construction work” (in each case as defined in the Construction Contracts Act 2002), the provisions of that Act will take priority over these Terms or Supplemental Terms (as applicable) if there is any conflict or inconsistency between these Terms or any Supplemental Terms and that Act.

1.6 Where Supplier and the Customer are subject to a Use-of-System Agreement (available at http://www.horizonnetworks.nz/information-disclosure-regulation) or the terms of the Electricity Industry Participation Code 2010 (“Code”), in the event of any inconsistency between these Terms or any Supplemental Terms and the Use-of-System Agreement or the Code (as applicable), the Use-of-System Agreement or the Code (as applicable) shall prevail in respect of any activity regulated by the Use-of-System Agreement or the Code. Otherwise these Terms shall apply.

1.7 If there is any conflict or inconsistency between these Terms and any Supplemental Terms then, unless otherwise expressly provided in these Terms to the contrary, the Supplemental Terms will prevail over these Terms.

2 Definitions

2.1 In these Terms (and in any Supplemental Terms unless specified otherwise):

"Supplier" means Aquaheat New Zealand Limited or Aquaheat Facility Services Limited and includes any trading division as part of Aquaheat New Zealand Limited or Aquaheat Facility Services Limited that supplies Goods and/or Services to the Customer (and includes its successors and assignees).

"Customer" means the Customer named on any Supplemental Terms entered into with Supplier or otherwise any person, firm, company or other entity buying the Goods and/or Services from Supplier.

"Goods" means all goods, machinery, product, plant, equipment or chattels provided by Supplier to the Customer, including as expressly identified in any Supplemental Terms.

"Services" means all labour, construction, design, installation and engineering work and all other services provided by Supplier to the Customer, including as expressly identified in any Supplemental Terms.

"Supplemental Terms" includes any letter of works, requisition order, quotation, purchase order, Supplier invoice or similar supplied by Supplier in connection with the Services. For the avoidance of doubt, any letter of works, requisition order, purchase order, invoice or similar not supplied by Supplier will not constitute Supplemental Terms.

“Trade” means any trade, business, industry, profession, occupation, activity of commerce, or undertaking relating to the supply or acquisition of goods or services.

2.2 Headings are used as a matter of convenience only and shall not affect the interpretation of these Terms.

2.3 A reference to a person includes a corporation, association, firm, company, trust, partnership or individual.

3 Price and Quotations

3.1 Unless otherwise expressly stated in any Supplemental Terms, all prices stated to apply in respect to the supply of any Goods and/or Services will be those applying at the date of delivery and will include freight charges. In the absence of any quoted price for any particular Goods and/or Services set out in any Supplemental Terms, Supplier’s invoiced price for such Goods and/or Services shall apply.

3.2 Unless otherwise expressly stated in any Supplemental Terms, the quoted or invoiced price of all Goods and/or Services excludes any amount payable in respect of GST (and any other taxes and duties assessed or levied in connection with the supply of Goods to the buyer), which will be paid by the Customer to Supplier in addition to the stated price. Where the payment of such taxes and duties is the responsibility of Supplier at law, the price shall be increased by the amount of such taxes and duties.

3.3 Where GST or other taxes or duties are expressly included in any quotation given by Supplier, any increase in the amount of GST or other taxes and duties beyond the control of Supplier between the date of the quotation and the date of delivery of the Goods shall be the responsibility of the Customer and the price shall be increased accordingly provided that the increase is notified to the Customer prior to the Goods being supplied.

3.4 Any prices stated to be quotations are based on the cost of labour, materials and equipment, customs duty, insurance, freight and variable and fixed expenses and, where appropriate, rates of currency exchange operating at the date of quotation. Any increase in the cost to Supplier (whether of the supply, production, delivery or otherwise of the Goods and/or Services), because of a change in specification or delay of the Customer, which may occur between the date of quotation and the date of delivery shall be payable by the Customer provided that the increase is notified to the Customer prior to the Goods or Services being supplied.

3.5 Supplier shall only be responsible to comply with the regulations, bylaws, codes and standards specified in the Supplemental Terms and Supplier shall, unless otherwise required by law, be under no liability to the Customer whatsoever for any failure to meet any other regulations, bylaws, codes and standards. In the event of there being any changes in the regulations, bylaws, codes and standards with which Supplier is obliged to comply after the date of the Supplemental Terms, then any additional costs in meeting any such changes shall be to the account of the Customer provided that the increase is notified to the Customer prior to the Goods or Services being supplied.

3.6 Any variation in the quantity of Goods or the specification of Goods supplied to the Customer, which is requested by the Customer after the date of the quotation shall be at the Customer's expense. The Goods shall be priced at either the price stated to be applicable to the original quantity under the relevant Supplemental Terms or (if no price is specified in the Supplemental Terms) the Supplier’s current list price at the time the request is received from the Customer.

3.7 For a quotation to be binding on Supplier, it must be accepted in writing by the Customer within the period specified in the quotation or the date otherwise expressly stated in any other Supplemental Terms.

3.8 Dimensions and specifications contained in a quote or referred to or in any catalogues or other publications maintained or issued by Supplier are estimates only. Unless otherwise expressly specified in any Supplemental Terms or agreed in writing, it is not a condition that any Goods and/or Services will correspond precisely with such dimensions and specifications, and customary tolerances, or in the absence of customary tolerances, reasonable tolerances, shall be allowed.

3.9 Should Supplier be obliged pursuant to a quote to match any shade or colour, a light and dark tolerance shall be allowed to such extent as shall be agreed upon by Supplier and the Customer and in the absence of any agreement, a reasonable tolerance shall be allowed.

4 Payments

4.1 Payment for Goods and/or Services shall be made on the date stated in the invoice relating to the supply of such Goods and/or Services unless:

4.1.1 the payment terms are otherwise notified in any Supplemental Terms; or

4.1.2 the parties agree otherwise in writing.

4.2 Payment must be made by the applicable due date by way of cleared funds in full without any form of deduction, counterclaim or set off. Receipt of a cheque, bill of exchange, or other negotiable instrument shall not constitute payment until such negotiable instrument is cleared and paid in full.

4.3 If the Customer disputes any or all of an amount contained in an invoice, the Customer will:

4.3.1 immediately notify Supplier of the dispute and provide reasons for the dispute;

4.3.2 pay the undisputed amount of the invoice by the due date specified in the invoice; and

4.3.3 negotiate in good faith with Supplier to resolve the dispute in accordance with the disputes procedure set out in clause 13.

4.4 If payment is not made by the due date Supplier may, without prejudice to its other rights and remedies (for example, to suspend or cancel further deliveries of Goods or Services to the Customer), charge the Customer default interest (compounding monthly) on the unpaid amount at a rate equal to one and a half times the monthly small to medium-sized enterprise (SME) overdraft rate published by the Reserve Bank of New Zealand over the relevant period (available at https://www.rbnz.govt.nz/statistics/b3).

4.5 Supplier may deduct or withhold any amount (whether by way of counterclaim, set-off or otherwise) from any money owing by Supplier to the Customer on any account whatsoever. However, the Customer shall not be entitled to withhold payment or to make any deductions from the agreed price without the prior written consent of Supplier.

4.6 In the case of export sales, payment shall be made by a confirmed irrevocable letter of credit (unless otherwise agreed). Letters of credit shall, unless otherwise agreed, be established through a first class bank and be irrevocable, confirmed and without recourse available for Supplier's draft at sight and otherwise in a form satisfactory to Supplier.

4.7 If Supplier shall at any time deem the credit of the Customer to be unsatisfactory, it may require security for payment and may suspend performance of its obligations until the provision of sufficient security. All reasonable costs and expenses of or incurred by Supplier as a result of such suspension and any recommencement shall be payable by the Customer upon demand.

5 Delivery

5.1 If the stated price of any Goods in any quotation includes the costs of delivery to a delivery point agreed with the Customer (if applicable), unless otherwise agreed by Supplier prior to delivery, the price of the Goods includes the costs of delivery of the Goods by the usual methods of transportation used by Supplier, between the hours of 7.30am and 5pm Monday to Friday (excluding statutory holidays). Supplier may, if the Customer requests, arrange for Goods to be delivered by other means or at other times, provided that in such circumstances Supplier shall be entitled to charge the Customer for any additional costs that Supplier may reasonably incur.

5.2 Supplier will use reasonable endeavours to procure that the Goods are delivered on the agreed delivery dates (if any). Any time for delivery or installation of the Goods shall be approximate only, time shall not be deemed to be of the essence of these Terms and the Customer will accept the Goods if they are delivered within a reasonable time after any specified time for delivery.

5.3 Notwithstanding any obligation on the part of Supplier to carry out any installation work, delivery will be deemed to have been made, and risk with respect to the Goods shall pass to the Customer, when:

5.3.1 the Goods arrive at the delivery point agreed with the Customer; or

5.3.2 if no place of delivery is agreed on, when the Goods are delivered to Supplier’s premises, at which point the Customer is required to collect the Goods from Supplier’s premises.

5.4 The Customer or its authorised representative must sign Supplier’s copy of the delivery docket or packing slip before the Goods are unloaded or collected to evidence delivery (provided that delivery shall still be deemed to have been made on the occurrence of the relevant actions described in this clause 5.4, notwithstanding that a delivery docket or packing slip has not been signed by the Customer).

5.5 All claims for errors in delivery, or for Goods damaged in transit only when a delivery point has been agreed, must be made in writing (including by email) to Supplier within five working days of delivery or Goods being collected by the Customer.

5.6 Without prejudice to any of Supplier’s rights and remedies, if the Customer fails or refuses to take delivery of any Goods at an agreed delivery point or time, or indicates that they will fail or refuse to take or accept delivery and/or permit installation at the time specified in these Terms or any Supplemental Terms or at any other times that Supplier is able to deliver and/or install the Goods or Services, the Goods shall be deemed to have been delivered when Supplier notified the Customer that it was willing and able to deliver them, and Supplier may (without limiting any other rights or remedies Supplier may have) charge the Customer for any expenses or additional costs reasonably incurred by Supplier as a result of the delay including, but not limited to, storage and transportation expenses.

5.7 In the case of export sales, delivery on a sale F.O.B., C.I.F., or C.&.F. shall, unless otherwise stated, be complete when the Goods effectively pass the ship’s rail at the port of shipment or arrive at the airport for dispatch or earlier leave Supplier’s custody for shipment to the Customer. Trans-shipment shall be allowed. Delivery may be affected by Supplier at its election by one or more shipments.

5.8 If the manufacture, supply or delivery of any Goods and/or Services, or where these Terms provide for the installation of the Goods, the installation or any commissioning or testing of the Goods, is delayed by reason of or as a result of any act, omission, default or request by or on behalf of the Customer, Supplier may, without prejudice to its other rights and remedies, require payment by the Customer of such portion of the price payable to the extent to which Supplier has performed its obligations up to the date such payment is required together with any expenses or additional costs incurred by Supplier as a result of such delay. In the event of such delay continuing beyond a reasonable time, Supplier may without prejudice to its other remedies, terminate the supply or delivery of the Goods and/or Services.

6 Installation

6.1 Where these Terms and/or the Supplemental Terms provide for installation of the Goods to be carried out by Supplier, it is the Customer's responsibility to:

6.1.1 provide suitable access to the Customer’s premises in all weather conditions for the vehicles and equipment that Supplier will need to use in carrying out such installation;

6.1.2 provide all necessary services and amenities to enable Supplier to carry out such installation; and

6.1.3 ensure that the Customer’s premises and foundations are structurally sound and in a proper condition for the installation to proceed.

6.2 If the Customer is acquiring Goods and/or Services in trade, it is the Customer's responsibility to:

6.2.1 observe and comply with all statutes, regulations and other subordinate legislation in force, or that come into force, in New Zealand in respect of health and safety in employment (including the Health and Safety at Work Act 2015 and all regulations made under that Act) and any reasonable health, safety, security and other requests which Supplier has previously advised the Customer of in writing, provided that Supplier shall also follow all reasonable directions relating to health and safety from the Customer with respect to Supplier access to the Customer premises;

6.2.2 provide all plant materials and services required to be provided by the Customer at such times and in such manner as to cause Supplier no delay in carrying out such installation;

6.2.3 provide safe and secure onsite storage for materials and accessories supplied and used by Supplier, its employees and contractors; and

6.2.4 maintain adequate insurance against all loss, damage, costs and expenses (including loss of profits and where installation or other work is to be performed by Supplier, its agents or contractors, damage to or destruction of the Customer's premises) which may be suffered or incurred by the Customer and to ensure that Supplier, its agents and contractors are named as additional insured parties under all such insurance policies.

6.3 For the avoidance of doubt, clause 6.2 does not apply if the Customer is not in trade.

6.4 The Customer shall advise Supplier promptly of any decision or instruction which needs to be made or given prior to Supplier being able to proceed with installation of the Goods.

6.5 Supplier will ensure that proof of identification is carried and will provide the Customer with prior notice of access where it can reasonably do so.

7 Risk and Title

7.1 Supplier retains legal and equitable title to any Goods supplied to the Customer until full payment is made for the Goods and all other Goods and/or Services supplied by Supplier (even if the Customer incorporates the Goods with other items or the Goods become part of or an accession or accessory to any other objects, products or mass).

7.2 Notwithstanding that ownership of any Goods may remain with Supplier, all risk of any loss, damage or deterioration in relation to any Goods supplied shall pass to the Customer on delivery.

7.3 Until legal and equitable title to any Goods supplied by Supplier passes to the Customer, the Customer will hold the Goods as Supplier’s bailee and, if so required by Supplier, store separately those Goods in respect of which property is retained by Supplier and clearly identify such goods as the property of Supplier. The Goods must be kept in good condition.

7.4 Following delivery and until legal and equitable title in the Goods passes to the Customer, the Customer shall keep the goods insured in the name of the Supplier and the Customer for their respective rights and interests (in particular, the insurance shall cover the full replacement value of the Goods) and will produce to Supplier on demand such evidence as the Supplier may require to confirm the existence of such insurance. If the Customer defaults in the performance of its obligations under this clause, Supplier shall be entitled to, but shall not be obligated to, insure the Goods and the cost of effecting such insurance shall be payable by the Customer to Supplier on demand.

7.5 If any Goods are damaged or destroyed following delivery but prior to the legal and equitable title passing to the Customer, Supplier shall be entitled, without prejudice to any of its other rights or remedies, to receive all insurance proceeds which are payable in respect thereof (whether or not the purchase price of such goods has become payable) and the production of these Terms by Supplier shall be sufficient evidence of Supplier’s right to receive payment of such insurance proceeds without the need for further enquiry by any person dealing with Supplier. Any such insurance proceeds shall be applied by Supplier as follows:

7.5.1 first, in payment of the purchase price of the Goods which are damaged or destroyed, if unpaid;

7.5.2 secondly, in payment of the outstanding purchase price of any other Goods and/or Services supplied to the Customer by Supplier, whether under these Terms (or Supplemental Terms) or otherwise;

7.5.3 thirdly, in payment of any other sums payable to Supplier by the Customer whether under these Terms (or Supplemental Terms) or otherwise; and

7.5.4 thereafter any balance shall be paid to the Customer.

7.6 Risk of any damage to the Goods arising out of any installation work carried out at the Customer’s premises shall be borne by the Customer, except where such damage is caused by the negligence of Supplier, its agents or contractors in carrying out any such installation work in which event such damage shall be the responsibility of Supplier.

7.7 The Customer gives or procures irrevocable authority to Supplier to enter any premises occupied by the Customer, or any other party on which Goods and Services are situated, at any reasonable time after default by the Customer, in order to remove and repossess any Goods, and to sell those Goods if necessary to recover unpaid monies, including in accordance with clause 11.1.3.