All goods (the “Goods”) supplied by Active Refrigeration Limited (and related entities) (the “Company”) to the Customer and services (including installation services) (the “Services”) are supplied on the following terms and conditions (these “Terms”). These Terms, and the contract to which they relate, are together referred to as “the Contract”. By requesting the Company to supply Goods or Services to you as the Customer, you will be deemed to accept these Terms.
Standard Terms & Conditions
1. Price
1.1 The Goods and Services are supplied at the price quoted and in the absence of a quote, at the Company’s list price and, in both cases, as invoiced.
2. Payment
2.1 Payment is to be made on the 20th of the month following invoicing. If payment is not made within this time, any discount allowed may be revoked and charged to the Customer.
2.2 The Customer shall make all payments without set−off or deduction of any kind. Receipt of a cheque, bill of exchange, or other negotiable instrument will not constitute payment and the Customer remains liable for payment until cleared payment is
received by the Company.
2.3 Failure by the Customer to make payment of any amount payable pursuant to these Terms on the due date shall constitute default and without prejudice to any rights and remedies of the Company, the Customer shall pay to the Company penalty interest
on such amount at a rate of 1.5% a month. Such interest shall be payable upon demand and shall accrue on a daily basis from the due date of payment.
2.4 The Company will apportion payments to outstanding accounts as it sees fit.
2.5 The Company is under no obligation to supply any Goods or Services to the Customer on credit or at any time when money is owed to the Company, unless the Company agrees otherwise in writing. The Company may notify the Customer at any time that the Company is going to stop supplying Goods or Services on credit, without prejudice to the Customer’s obligation to pay all amounts owing.
3. Ownership
3.1 Ownership of all Goods remains with the Company until payment for the Goods is made in full.
3.2 The Customer may process the Goods and incorporate them with any other Goods only if the new product containing any part of the Goods is separately stored and marked so as to be identifiable as being made from or with the Goods. The Company’s security interest in the Goods under this clause continues in the product in which the Goods are included.
4. Delivery of Goods
4.1 The Company reserves the right to deliver Goods by instalments and each instalment shall be deemed to be a separate contract governed by these Terms.
4.2 The Company undertakes to use all reasonable endeavours to deliver the Goods within the time agreed or estimated but failure to do so shall not give the Customer any right of repudiation or cancellation of the contract to provide the Goods or any right of rejection in respect of goods invoiced or any instalments relating to that invoice.
4.3 The Company may suspend supply and delivery of Goods if the Customer is in default under clause 12.
5. Personal Property Security Act 1999 (the “PPSA”)
5.1 The Customer grants to the Company a security interest in all present and after acquired property and inventory (including without limiting the generality of the foregoing, all refrigeration and cooling plant and equipment) supplied from time to time by the Company to the Customer and the proceeds thereof as security for all amounts payable by the Customer to the Company.
5.2 The Customer:
(a) must, upon request, promptly give the Company all assistance and information (which the Customer warrants is complete, accurate and up to date in all respects) as is necessary to register a financing statement and to meet all other requirements under the PPSA in respect of the personal property to ensure that the security interest constitutes a Perfected Security Interest (as that term is defined in the PPSA) including executing any variations to these Terms reasonably requested by the Company;
(b) agrees to the Company registering a financing statement to protect its security interest under these Terms;
(c) must not register a financing change statement or a change demand in respect of the personal property (as those terms are defined in PPSA);
(d) must give the Company not less than 14 days prior written notice of any change or proposed change in the Customer’s name, or any other details including, but not limited to, changes in the Customer’s address, trade name, type of business, contact details and change in effective control of the Customer;
(e) must pay to the Company promptly on request the cost of registering or subsequently amending the financing statement and the costs of enforcing or attempting to enforce the security interest evidenced by these Terms;
(f) agrees that sections 114(1)(a), 133 and 134 of the PPSA will not apply to the security interest created by these Terms, and agrees to contract out of the Customer’s rights referred to in sections 116, 119, 120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA; and
(g) waives its rights to receive verification statement under section 148 of the PPSA.
5.3 The Customer will not allow a security interest to be created or registered over the Goods in priority to the security interest held by the Company.
5.4 The Company may, at any time, enter the Customer’s premises or any other premises where the Goods are located to uplift the Goods that the Company has a security interest in.
6. Risk and Insurance
6.1 Risk in any Goods supplied by the Company to the Customer shall pass to the Customer on delivery.
6.2 The Customer shall insure the Goods for their full insurable value from the time they take delivery.
7. Contract and Commercial Law Act 2017
7.1 The warranty of merchantability or fitness for a particular purpose and all other representations, statements, warranties or conditions whether implied by the Contract and Commercial Law Act 2017 or made by any other representative or agent of the Company or otherwise whether expressed or implied are hereby excluded.
8. Consumer Guarantees Act 1993
8.1 Where a supply of Goods or Services is for the purpose of a business, the Customer agrees that the guarantees contained in the Consumer Guarantees Act 1993 do not apply. Nothing in these Terms otherwise limits any right the Customer may have under the Consumer Guarantees Act 1993.
9. Fair Trading Act 1986
9.1 Where the supply of Goods or Services is for the purposes of business, the Customer agrees that section 9, 12A, 13 and 14(1) of the Fair Trading Act 1986 do not apply and that the parties have contracted out of these provisions. Nothing in these Terms otherwise limits any rights the Customer may have under the Fair Trading Act 1986.
10. Privacy Act 2020
10.1 Refer to our Privacy Policy.
11. Exclusion of Liability and Indemnity
11.1 The Company warrants that:
(a) the Goods will be free from any defect in design, material and workmanship;
(b) the Services will be performed with care and skill by appropriately trained persons; and
(c) to the extent it is permitted to do so, any manufacturer warranty will be passed on to the Customer.
11.2 The Company shall not be responsible for any damage caused either to the Goods or as a result of the malfunction of the Goods if:
(a) the Goods are fitted by an unqualified tradesperson; or
(b) the Goods are not fitted to a good trade standard; or
(c) the Goods are in any way adapted to a use for which they are not specifically intended; or
(d) the Goods are added to or repaired using components not recommended or approved by the manufacturer of the Goods.
11.3 To the extent that the Company is found to be liable to the Customer in any circumstances then the maximum amount the Company will be liable for to the Customer under these Terms is an amount equal to the lesser of:
(a) the purchase price of the Goods and Services;
(b) the cost of replacement or repair of the Goods or the re-performance of the Service; and
(c) the actual loss or damage suffered,
and the Customer will have no claim against the Company unless written notice is given to the Company within 6 months after delivery.
11.4 The Company shall be under no liability to the Customer (whether in contract, tort or otherwise) for any loss (including but not limited to loss of profits and consequential loss) of any kind whatever arising out of the supply of or failure to supply the goods and services hereunder.
11.5 The Customer shall keep the Company indemnified against all costs, claims, demands, expenses and liabilities of whatsoever nature, including without prejudice to the generality to the foregoing, claims for consequential loss (including loss of profits) which may be made against the Company and which the Company may sustain, pay or incur as a result of or in connection with the production, supply,
installation or use of the Goods or Services.
12. Default
12.1 The Customer will be in default, if any of the following events occur:
(a) the Customer fails to pay any money owing on the due date, or breaches any of its other obligations under these Terms, any security document in favour of the Company, or any other contract entered into at any time between the Customer and the Company;
(b) the Company believes the Customer has committed or will commit an act of bankruptcy, has or will enter into any composition or arrangement with its creditors, has had or is about to have a receiver or statutory manager (or similar) appointed, or is wound up, declared insolvent, ceases to be of full legal capacity, or dies;
(c) the Customer becomes liable to be placed in liquidation;
(d) the Goods are at risk, as that term is defined in the PPSA; or
(e) the Customer neglects or fails to carry on its business to the reasonable satisfaction of the Company, or if there is a significant deterioration in the trading or asset position of the Customer in the opinion of the Company.
12.2 Where the Customer is in default, then the Company may, at its option, do any one or more of the following:
(a) require the Customer to remedy the default in the manner and within the period
required by the Company;
(b) enforce the security interest created by clause 5 of these Terms;
(c) charge default interest under clause 2.3 on any overdue amounts;
(d) require the Customer to pay all amounts it owes the Company immediately;
(e) suspend or terminate the Customer’s account with the Company; or
(f) exercise any rights that the Company has under these Terms or that are
available to the Company by law.
12.3 In addition, the Company may terminate the Customer’s account at any time by
written notice in its sole discretion. If the Customer’s account is terminated, the
Customer must immediately pay to the Company any amount owing to Company.
Termination will not affect any of the Company’s rights that arise before or upon
termination.
13. Installation
13.1 Where the Company agrees to install the Goods at the Customer’s premises (“the Premises”) the following conditions shall apply:
(a) the Customer will provide reasonable access for the Company, its servants, agents and subcontractors to the Premises during the period of installation during usual business hours and otherwise as may be agreed by the parties to enable the Company to carry out its obligations. The Customer will also provide, at its own expense, connection for electricity and any other similar services, and all plant, edge protection materials, and other resources required by the Company for installation of the Goods;
(b) it is the Customers responsibility to:
(i) promptly obtain any necessary consent, approval, permit, licence or authorisation to enable the Company to carry out the installation;
(ii) ensure that the Premises and foundations are structurally sound and in a proper condition for the installation to proceed;
(iii) provide safe and secure onsite storage for materials and accessories supplied and used by the Company, its employees and contractors;
(iv) advise the Company promptly of any decision or instruction that needs to be made or given before Company is able to proceed with the installation; and
(v) provide a safe working environment for the Company’s employees and contractors.
13.2 To the full extent permitted by law, the Company excludes all liability for any loss, liability, damage or expense incurred by the Customer as a result of the delivery or installation of any Goods, or any delay or failure for any reason to deliver or install any Goods.
14. Intellectual Property
14.1 In respect of Intellectual Property used in or arising from the production of the Goods or the performance of any Services:
(a) all pre−existing Intellectual Property the subject of an intellectual property right resides with the owner as at the date of these Terms (whether the Company or the Customer); and
(b) any new Intellectual Property will be dealt with in accordance with clause 14.3.
14.2 If any Goods are to be supplied to the Customer’s design, the Customer warrants that the manufacture and supply of such Goods by the Company will not infringe any third party’s Intellectual Property rights and the Customer indemnifies the Company against any loss, liability, costs and expenses in the event of any claim being made that the manufacture or supply of such Goods by the Company infringes any patent, copyright or other rights of any other person.
14.3 Subject to clause 14.1, the Company is and will remain the exclusive owner everywhere in the world of all Intellectual Property rights and interests in the Goods, and any other work performed by the Company for the Customer, as first owner of those intellectual property rights and interests, and:
(a) the Company shall retain exclusive worldwide ownership at all times of its artistic styles, methods of working, techniques, ideas, skills and know−how; and
(b) the Customer must not attribute the Goods to anyone other than Company or remove any of the Company’s trade marks, signatures, logos or similar from the Goods.
14.4 This clause 14 shall continue in force as between the Company and the Customer notwithstanding the termination of these Terms or the delivery of the Goods.
14.5 For the purposes of this clause “Intellectual Property” means all intellectual property rights including, without limitation, copyright, patent and design rights, drawings, documents, data, ideas, procedures, calculations and all other statutory and common
law rights and interests.
15. Notices
15.1 Any notice must be in writing (which may include email) and may be served by leaving it or sending it to the address of the other party as specified by a party from time to time, in a manner that ensures receipt of the notice can be proved.
16. Confidentiality
16.1 The Customer shall at all times treat as confidential all non−public information and material received from the Company and shall not publish, release, or disclose the same without the Company’s prior written consent. For clarity, confidential information
includes any new Intellectual Property and prices.
17. Force Majeure
17.1 In this clause, “Force Majeure” means an event or circumstance which is beyond a party’s control, could not reasonably have provided against by that party before entering into the Contract, could not reasonably have avoided or overcome by that party, and which is not substantially attributable to the other party, including but not limited to:
(a) cyclone, tornado, earthquake, natural disaster, landslide, tsunami, flood, volcanic eruption, or mudslide;
(b) civil riot, civil rebellion, revolution, terrorism, military usurped power, act of sabotage or act of a public enemy and war (declared or undeclared) or other like hostilities;
(c) epidemic or pandemic;
(d) any “terrorist act” as defined in section 5 of the Terrorism Suppression Act 2002;
(e) ionising radiation, contamination by radioactivity, nuclear, chemical or biological contamination not caused or contributed to by the Contractor; and/or
(f) an explosion or fire, not caused or contributed to by the Company, that affects the Company, its subcontractors, or their supply chain. Force Majeure does not include insufficiency of financial means or any event or circumstance caused by insufficiency of financial means.
17.2 If a party is or will be prevented from performing any of its obligations under the Contract by Force Majeure, then it shall give notice to the other party of the event or circumstances constituting the Force Majeure and shall specify the obligations, the performance of which is or will be prevented. The notice shall be given within 14 days after the party became aware, or should have become aware, of the relevant event or circumstance constituting Force Majeure.
17.3 The party shall, having given notice, be excused performance of such obligations for so long as such Force Majeure prevents it from performing them.
17.4 Notwithstanding any other provision of this clause, Force Majeure shall not apply to existing obligations of either party to make payments (excluding liquidated damages payments) to the other party under the Contract.
17.5 Each party shall at all times use reasonable endeavours to minimise any delay in the performance of the Contract as a result of Force Majeure. A party shall give notice to the other party when it ceases to be affected by the Force Majeure.
17.6 If the Company is prevented from performing any of its obligations under the Contract by Force Majeure of which notice has been given under clause 17.2, and suffers delay and/or incurs cost by reason of such Force Majeure, the Company shall not be liable for any failure to perform its obligations to the extent caused by the Force Majeure and shall be entitled to:
(a) an extension of time for any such delay, and
(b) payment of such cost as.
17.7 If installation, supply or provision of substantially all the Goods or the Services in progress is prevented for a continuous period of 84 days by reason of Force Majeure of which notice has been given under clause 17.2, or for multiple periods which total more than 140 days due to the same notified Force Majeure, then either party may give to the other party a notice of termination of the Contract. In this event, within 15 working days after the notice is given:
(a) the Company shall:
(i) cease all further work;
(ii) hand over any Goods for which the Company has received payment in full; and
(iii) remove all other Goods and items that belong to the Company from the Premises.
18. Costs
18.1 The Customer must pay the Company’s costs (including legal costs, as between solicitor and client) of and incidental to the enforcement or attempted enforcement of the Company’s rights, remedies and powers under these Terms.
19. Waiver
19.1 No failure or delay of the Company at any time to require full performance by the Customer of its obligations, or to exercise any of its rights under these Terms or otherwise, shall operate as a waiver of those matters.
20. Governing Law and Disputes
20.1 Any claim or dispute arising under these Terms shall be determined by arbitration under the Arbitration Act 1996 if the parties are unable to resolve such dispute themselves within 1 month of the dispute arising. However, nothing in this clause prevents either party from taking immediate steps to seek any equitable relief before the New Zealand Courts.
20.2 The Customer and the Company irrevocably and unconditionally submit to the exclusive jurisdiction of the Courts of New Zealand for any disputes or proceedings arising out of or in connection with these Terms.
21. General
21.1 These Terms replace any earlier representations, warranties, understandings and agreements (whether oral or written), and together with the Customer Application Form constitute the entire agreement between the Company and the Customer relating to their subject matter.
21.2 The Customer shall not transfer or assign its rights or obligations under these Terms without the Company’s prior written consent.
21.3 If the Customer or any guarantor has entered into these Terms as the trustee of a trust and has no right to or interest in any of the assets of the trust except in its capacity as trustee of the trust, then its liability shall be limited to the value of the assets of the trust which now or in the future are (or, but for that person’s wilful neglect or default, would be) in the hands of the trustees for time being of the trust. This clause does not limit any liability any party has to the Company as a personal guarantor.
