Get Pumped Terms and Conditions

 Get Pumped Terms and Conditions

1.       Definitions

 1.1      “Seller” shall mean Get Pumped Heatpumps And Refrigeration Limited and its successors and assigns. 

1.2      “Buyer” shall mean the Buyer or any person acting on behalf of and with the authority of the Buyer.

1.3      “Guarantor” means that person (or persons), or entity that agrees herein to be liable for the debts of the Buyer on a principal debtor basis 

1.4      “Goods” shall have the same meaning as in section 2 of the Sale of Goods Act 1908 and are Goods supplied by the Seller to the Buyer (and where the context so permits shall include any supply of Services as hereinafter defined).

1.5      “Services” shall mean all Services supplied by the Seller to the Buyer and includes any advice or recommendations (and where the context so permits shall include any supply of Goods as defined above) 

1.6      “Price” shall mean the cost of the Goods as agreed between the Seller and the Buyer subject to clause 4 of this contract.

 2.       Acceptance

2.1      Any instructions received by the Seller from the Buyer for the supply of Goods shall constitute acceptance of the terms and conditions contained herein.

2.2      Where more than one Buyer has entered into this agreement, the Buyers shall be jointly and severally liable for all payments of the Price.  

2.3      Upon acceptance of these terms and conditions by the Buyer the terms and conditions are irrevocable and can only be rescinded in accordance with these terms and conditions or with the written consent of the manager of the Seller. 

2.4      None of the Seller’s agents or representatives are authorised to make any representations, statements, conditions or agreements not expressed by the manager of the Seller in writing nor is the Seller bound by any such unauthorised statements. 

3.       Goods / Services

3.1      The Goods and/or Services are as described on the invoices, quotation, work authorisation or any other work commencement forms as provided by the Seller to the Buyer. 

4.       Price & Payment

4.1      At the Seller’s sole discretion the Price shall be either;

(a)      As indicated on invoices provided by the Seller to the Buyer in respect of Goods supplied; or

(b)      The Seller’s quoted Price, which, subject to clause 4.2, shall be binding upon the Seller provided that the Buyer shall accept in writing the Seller’s quotation within thirty (30) days.

4.2      Any variation from the plan of scheduled works or specifications (including, without limitations, foreign exchange fluctuations, taxes and duties, provisions of any Acts, By-Law, Order or Regulation of any Parliament, municipality or local authority enacted after the date of contract between the Buyer and Seller) will be charged for on the basis of the Seller’s quotation and will be shown as extras on the invoice.  Payment for all extras must be made in full at their time of completion.

4.3      Time for payment for the Goods shall be of the essence and will be stated on the invoice, quotation or any other order forms.  If no time is stated then payment shall be on delivery of the Goods.

4.4      Any extra cost or expense incurred by the Seller because of any instructions from the Buyer or any action on the part of the Buyer or due to interruptions, delays, strikes, lockout or any event over which the Seller has no control shall be added to the Price

4.5      Payment will be made by cash or electronic banking or by any other method as agreed to between the Buyer and the Seller. 

4.6      The Price shall be increased by the amount of any GST and other taxes and duties, which may be applicable, except to the extent that such taxes are expressly included in any quotation given by the Seller.

4.7      The Seller reserves the right to withdraw or refuse credit facilities or to require payment of a deposit before delivery.

 5.       Delivery Of Goods

5.1      Delivery of the Goods shall be made to the Buyer’s nominated address. The Buyer shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery, or delivery of the Goods shall be made to the Buyer at the Seller’s address.

5.2      Delivery of the Goods to a carrier, either named by the Buyer or failing such naming to a carrier at the discretion of the Seller for the purpose of transmission to the Buyer, is deemed to be a delivery of the Goods to the Buyer.

5.3      Delivery of the Goods to a third party nominated by the Buyer is deemed to be delivery to the Buyer for the purposes of this agreement. 

5.4      Delivery of Goods shall be deemed to be effected by the Seller, whether or not the Buyer is present at the time of the delivery to acknowledge receipt. 

5.5      The failure of the Seller to deliver shall not entitle either party to treat this contract as repudiated. 

5.6      The Seller shall not be liable for any loss or damage whatsoever due to failure by the Seller to deliver the Goods (or any of them) promptly or at all.

6.       Risk

6.1      If the Seller retains property in the Goods nonetheless all risk for the Goods passes to the Buyer on delivery.

6.2      If any of the Goods are damaged or destroyed prior to property in them passing to the Buyer, the Seller is entitled, without prejudice to any of its other rights or remedies under these terms and conditions (including the right to receive payment of the balance of the Price for the Goods), to receive all insurance proceeds payable in respect of the Goods. This applies whether or not the Price has become payable under these terms and conditions. The production of these terms and conditions by the Seller is sufficient evidence of the Seller’s rights to receive the insurance proceeds without the need for any person dealing with the Seller to make further enquiries.   

7.       Defects/Returns/Order Cancellations 

7.1      The Buyer shall inspect the Goods on delivery and shall within seven (7) days of delivery notify the Seller in writing of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote.  The Buyer shall afford the Seller an opportunity to inspect the Goods within a reasonable time following delivery if the Buyer believes the Goods are defective in any way.  If the Buyer shall fail to comply with these provisions the Goods shall be conclusively presumed to be in accordance with the terms and conditions and free from any defect or damage.

7.2      All costs for the return or delivery of the Goods shall be payable by the Buyer. 

7.3      For defective Goods which the Seller has agreed in writing that the Buyer is entitled to reject, the Seller’s liability is limited to either (at the Seller’s discretion) replacing the Goods or repairing the Goods provided that:

 (a)      The Buyer has complied with the provisions of clause 7.1;

 (b)      The Seller will not be liable for Goods which have not been stored or used in a proper manner;

 (c)      The Goods are returned within 14 days in the condition in which they were delivered and with all packaging material, brochures and instruction material in as new condition as is reasonable possible in the circumstances.   

8.       Warranty

8.1      Subject to the conditions of warranty set out in Clause 8.2 the Seller warrants that if any defect in any workmanship/installation manufactured by the Seller becomes apparent and is reported to the Seller within twelve (12) months of the date of delivery  (time being of the essence) then the Seller will (at the Seller’s sole discretion) repair the defect or replace the workmanship. 

8.2      The conditions applicable to the warranty given by Clause 8.1 are: 

(a)      The warranty shall not cover any defect or damage which may be caused or partly caused by or arise through:  

i)        failure on the part of the Buyer to properly maintain any Goods; or

ii)       failure on the part of the Buyer to follow any instructions or guidelines provided by the Seller; or

 iii)      any use of any Goods otherwise than for any application specified on a quote or order form; or

 iv)      the continued use of any Goods after any defect becomes apparent or would have become apparent to a reasonably prudent operator or user; or 

v)       fair wear and tear, any accident or act of God.

(b)      The warranty shall cease and the Seller shall thereafter in no circumstances be liable under the terms of the warranty if the workmanship is repaired, altered or overhauled without the Seller’s consent.

 (c)      In respect of all claims the Seller shall not be liable to compensate the Buyer for any delay in either replacing or repairing the workmanship/Goods or in properly assessing the Buyers claim.

 8.3      For Goods not manufactured by the Seller the warranty shall be the warranty applied by the manufacturer of the Goods.  The Seller shall be under no liability whatsoever except for the express conditions as detailed and applied in the manufacturers warranty.

9.       Default & Consequences Of Default

9.1      Interest on overdue invoices shall be paid at 2.5% per month calculated on a monthly basis on all outstanding amounts from the date on which the payment was due until actual date of payment.

 9.2      Any expenses, disbursements and costs, including solicitors fees or debt collection agency fees, incurred by the Seller in the event of Buyer default, are payable by the Buyer.

 9.3      Without prejudice to any other remedies the Seller may have, if at any time the Buyer is in breach of any obligation (including those relating to payment), the Seller may suspend or terminate the supply of Goods to the Buyer and any of its other obligations under the terms and conditions. The Seller will not be liable to the Buyer for any loss or damage the Buyer suffers because the Seller exercised its rights under this clause.

 9.4      In the event that:

 (a)      Any money payable to the Seller becomes overdue, or in the Seller’s opinion the Buyer will be unable to meet its payments as they fall due, or;

(b)      The Buyer 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 Buyer or any asset of the Buyer, then without prejudice to the Seller’s other remedies at law

 (i)       the Seller shall be entitled to cancel all or any part of any order of the Buyer which remains unperformed in addition to and without prejudice to any other remedies; and

 (ii)      all amounts owing to the Seller shall, whether or not due for payment, immediately become due and payable.

  10.      Title

 10.1    It is the intention of the Seller and agreed by the Buyer that property in the Goods shall not pass until:

 (a)      The Buyer has paid all amounts owing for the particular Goods, and

 (b)      The Buyer has met all other obligations due by the Buyer to the Seller in respect of all contracts between the Seller and the Buyer, and that the Goods, or proceeds of the sale of the Goods, shall be kept separate until the Seller shall have received payment and all other obligations of the Buyer are met.

 10.2    It is further agreed that:

 (a)      Until such time as ownership of the Goods shall pass from the Seller to the Buyer, the Seller may give notice in writing to the Buyer to return the Goods or any of them to the Seller.  Upon such notice the rights of the Buyer to obtain ownership or any other interest in the Goods shall cease.

 (b)      If the Buyer fails to return the Goods to the Seller then the Buyer gives irrevocable authority to the Seller to enter any premises occupied by the Buyer or on which products are situated at any reasonable time after default by the Buyer or before default if the Seller believes 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.  The Seller shall not be liable for any costs, damages, expenses or losses incurred by the Buyer or third party as a result of this action, nor liable in contract or in tort or in otherwise in any way whatsoever unless by statute such liability cannot be excluded.  The Seller may either resell any repossessed Goods and credit the Buyer’s 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 the Buyer’s account with the invoice value less such sum as the Seller reasonably determines on account of wear and tear, depreciation, obsolescence, loss or profit and costs.  

10.3    If the Goods are attached, fixed or incorporated into any property of the Buyer, by way of any manufacturing or assembling process by the Buyer or any third party, title in the Goods shall remain with the Seller until the Buyer has made payment for all Goods and where those Goods are mixed with other property so as to be part of or a constituent of any new products, title to these new products shall be deemed to be assigned to the Seller as security for the full satisfaction by the Buyer of the full amount owing between the Seller and the Buyer.

10.4    Receipt by the Seller 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 and until then the Seller’s ownership of rights in respect of the Goods shall continue.

11.      Personal Property Securities Act 1999 

11.1    Upon accepting to these terms and conditions (refer clause 2. Acceptance) the Buyer 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 the Seller to the Buyer (if any) and all Goods that will be supplied in the future by the Seller to the Buyer during the continuance of the parties relationship;

11.2    The Buyer undertakes to:

(a)      Sign any documents and/or provide any further information, such information to be complete, accurate and up-to-date in all respects, which the Seller may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register;

(b)      Indemnify, and upon demand reimburse, the Seller 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 the Seller;

(d)      Give the Seller not less than seven (7) days prior written notice of any proposed change in the Buyer’s name and/or any other change in the Buyer’s details (including but not limited to, changes in the Buyer’s address, facsimile number, or business practice); and

(e)      Immediately advise the Seller 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.

11.3    The Seller and the Buyer agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these Terms and Conditions.

11.4    The Buyer waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA.

11.5    Unless otherwise agreed to in writing by the Seller, the Buyer waives its right to receive a verification statement in accordance with section 148 of the PPSA.

11.6    The Buyer unconditionally ratifies any actions taken by the Seller under and by virtue of the power of attorney given by the Buyer to the Seller under clauses 11.1 to 11.5.

  12.      Security & Charge 

  12.1    Despite anything to the contrary contained herein or any other rights which the Seller may have howsoever:

  (a)      Where the Buyer and/or the Guarantor (if any) is the owner of land, realty or any other asset capable of being charged, both the Buyer and/or the Guarantor agree to mortgage and/or charge all of their joint and/or several interest in the said land, realty or any other asset to the Seller or the Seller’s nominee to secure all amounts and other monetary obligations payable under the terms and conditions.  The Buyer and/or the Guarantor acknowledge and agree that the Seller (or the Seller’s nominee) shall be entitled to lodge where appropriate a caveat, which caveat shall be released once all payments and other monetary obligations payable hereunder have been met.

 (b)      Should the Seller elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Buyer and/or Guarantor shall indemnify the Seller from and against all the Seller’s costs and disbursements including legal costs on a solicitor and own client basis.

 (c)      To give effect to the provisions of clause [11, 12.1(a) to (b)] inclusive hereof the Buyer and/or the Guarantor (if any) do hereby irrevocably nominate constitute and appoint the Seller or the Seller’s nominee as the Buyer’s and/or Guarantor’s true and lawful attorney to execute mortgages and charges (whether registrable or not) including such other terms and conditions as the Seller and/or the Seller’s nominee shall think fit in his/her/its/their absolute discretion against the joint and/or several interest of the Buyer and/or the Guarantor in any land, realty or asset in favour of the Seller and in the Buyer’s and/or Guarantor’s name as may be necessary to secure the said Buyer’s and/or Guarantor’s obligations and indebtedness to the Seller and further to do and perform all necessary and other acts including instituting any necessary legal proceedings, and further to execute all or any documents in the Seller’s absolute discretion which may be necessary or advantageous to give effect to the provisions of this clause.

13.      Intellectual Property

13.1    Where the Seller has designed or drawn Goods for the Buyer, then the copyright in those designs and drawings shall remain vested in the Seller, and shall only be used by the Buyer at the Seller’s discretion.

13.2    Conversely, in such a situation, where the Buyer has supplied drawings, the Seller in its sale conditions may look for an indemnity (the specifications and design of the Goods (including the copyright, design right or other intellectual property in them) shall as between the parties be the property of the Seller).

13.3    Where any designs or specifications have been supplied by the Buyer for manufacture by or to the order of the Seller then the Buyer warrants that the use of those designs or specifications for the manufacture, processing, assembly or supply of the Goods shall not infringe the rights of any third party.

13.4    The Buyer warrants that all designs or instructions to the Seller will not cause the Seller to infringe any patent, registered design or trademark in the execution of the Buyers order.

14.      Cancellation 

14.1    The Seller may cancel these terms and conditions or cancel delivery of Goods and Services at any time before the Goods are delivered by giving written notice.  On giving such notice the Seller shall promptly repay to the Buyer any sums paid in respect of the Price for those Goods.  The Seller shall not be liable for any loss or damage whatsoever arising from such cancellation.

15.      Privacy Act 1993

15.1    The Buyer and the Guarantor/s (if separate to the Buyer) authorises the Seller to collect, retain and use any information about the Buyer, for the purpose of assessing the Buyers creditworthiness or marketing any Goods and Services provided by the Seller to any other party.

15.2    The Buyer authorises the Seller to disclose information about the Buyer, whether collected by the Seller from the Buyer directly or obtained by the Seller 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 Buyer.

15.3    Where the Buyer is a natural person, the authorities under (clause 15.1 & 15.2) are authorities or consents for the purposes of the Privacy Act 1993.

15.4    The Buyer shall have the right to request the Seller for a copy of the information about the Buyer retained by the Seller, and the right to request the Seller to correct any incorrect information about the Buyer held by the Seller

16.      Buyers Disclaimer 

16.1    The Buyer hereby disclaims any right to rescind, or cancel the contract or to sue for damages or to claim restitution arising out of any misrepresentation made to him by any servant or agent of the Seller and the Buyer acknowledges that he buys the Goods relying solely upon his own skill and judgement. 

17.      Contractual Remedies Act 

17.1    The provisions of the Contractual Remedies Act 1979 shall apply to this contract as if Section 15(d) of the Contractual Remedies Act which states that nothing in the Contractual Remedies Act shall affect the Sale of Goods Act 1908, were omitted from the Contractual Remedies Act 1979.

18.      Unpaid Seller’s Rights To Dispose Of Goods

18.1    In the event that:

(a)      The Seller retains possession or control of the Goods; and

(b)      Payment of the Price is due to the Seller; and

(c)      The Seller has made demand in writing of the Buyer for payment of the Price in terms of this contract; and

(d)      The Seller has not received the Price of the Goods, then, whether the property in the Goods has passed to the Buyer or has remained with the Seller, the Seller may dispose of the Goods and may claim from the Buyer the loss to the Seller on such disposal.

19.      Consumer Guarantees Act 1993

19.1    This agreement is subject to the provisions of the Consumer Guarantees Act 1993 in all cases except where the Buyer is contracting within the terms of a trade/business (which cases are specifically excluded).  

20.      Construction Contracts Act 2002 

20.1    In the event that the Buyer is an owner occupier as defined by the Construction Contracts Act 2002 the Buyer hereby expressly acknowledges that

(a)      The Seller has the right to suspend work within five (5) working days of written notice of its intent to do so if a payment claim is served on the Buyer, and:

 (i)       the payment is not paid in full by the due date for payment and no payment schedule has been given by the Buyer; or

 (ii)      a scheduled amount stated in a payment schedule issued by the Buyer in relation to the payment claim is not paid in full by the due date for its payment; or

(iii)     the Buyer has not complied with an adjudicator’s notice that the Buyer must pay an amount to the Seller by a particular date; and  

(iv)     the Seller has given written notice to the Buyer of its intention to suspend the carrying out of construction work under the construction contract.

(b)      If the Seller suspends work, it:

(i)       Is not in breach of contract; and

(ii)      is not liable for any loss or damage whatsoever suffered, or alleged to be suffered, by the Buyer or by any person claiming through the Buyer; and

(iii)     is entitled to an extension of time to complete the contract; and

(iv)     keeps its rights under the contract including the right to terminate the contract; and may at any time lift the suspension, even if the amount has not been paid or an adjudicator’s determination has not been complied with. 

(c)      If the Seller exercises the right to suspend work, the exercise of that right does not:

(i)       affect any rights that would otherwise have been available to the Seller under the Contractual Remedies Act 1979; or

(ii)      enable the Buyer to exercise any rights that may otherwise have been available to the Buyer under that Act as a direct consequence of the Seller suspending work under this provision.

21.      General

21.1 If any provision of these terms and conditions shall be invalid, void or illegal or unenforceable, that term will be deemed modified to the extent necessary to make it enforceable, or if modification is impractical, that term will be deemed deleted but without affecting the remainder of these terms.

21.2 All Goods and Services supplied by the Seller are subject to the laws of New Zealand and the Seller takes no responsibility for changes in the law that affect the Goods or Services supplied.

21.3    The Seller shall be under no liability whatsoever to the Buyer for any indirect loss and/or expense (including loss of profit) suffered by the Buyer arising out of a breach by the Seller of these terms and conditions.  

21.4    In the event of any breach of this contract by the Seller the remedies of the Buyer shall be limited to damages. Under no circumstances shall the liability of the Seller exceed the Price of the Goods.

21.5    Neither party shall be liable for any default due to any act of God, terrorism, war, strike, lock out, industrial action, flood, storm or other event beyond the reasonable control of either party.

21.6    The Buyer shall not set off against the Price amounts due from the Seller.

21.7    The Seller may license or sub-contract all or any part of its rights and obligations without the Buyer’s consent.

21.8    The Seller reserves the right to review any of these terms at any time.  Any change will take effect on the next transaction following the date on which the Seller notified the Buyer of such change.

21.9    The Buyer must notify the Seller in writing within seven (7) days of receipt of any disputed invoice.  The notification must quote the relevant invoice number and must include all the necessary details of the reason the invoice is being disputed.  Should the Buyer fail to notify the Seller of any dispute, defect or damage within seven (7) days of receipt of the invoice, the customer shall be deemed to accept the invoice and shall pay that invoice according to the terms and conditions contained in this document.

21.10   Each party agrees to always keep the other party’s confidential material confidential and not to use the confidential material for any purpose other than for the purpose for which it was supplied or copy, or reproduce any of the confidential material in any way except whether disclosure is necessary to enable Goods or Services to be used under lease or where the party that owns the confidential material has consented to disclosure. On request each party will ensure that any confidential material (including any copies) that it possesses or controls and that belongs to the other party is returned to that other party. Confidential material means: all information and other material relating to the Seller’s business, employees, goods or services which was made available to the Buyer; or any report or material which the Seller produces as a direct or indirect result of any work that the Seller carries out for the Buyer and anything that the Buyer derives from this information and material, but excluding everything which is generally available to the public or the Buyer or a third party have independently developed or acquired this confidential material.