Terms & Conditions

Definitions
1. “Contract” means the terms and conditions contained herein, together with any Quotation, order, invoice or other document or amendments expressed to be supplemental to this Contract.
2. “Seller” means Best Electrical Ltd, its successors and assigns or any person acting on behalf of and with the authority of Best Electrical Ltd.
3. “Buyer” means the person/s, entities or any person acting on behalf of and with the authority of the Buyer requesting the Seller to provide the Works as specified in any proposal, quotation, order, invoice or other documentation, and:
  1. if there is more than one Buyer, is a reference to each Buyer jointly and severally; and
  2. if the Buyer is a partnership, it shall bind each partner jointly and severally; and
  3. if the Buyer is a part of a Trust, shall be bound in their capacity as a trustee; and
  4. includes the Buyer’s executors, administrators, successors and permitted assigns.
4. “Works” means all Works (including consultation, manufacturing and/or installation services) or Materials supplied by the Seller to the Buyer at the Buyer’s request from time to time (where the context so permits the terms ‘Works’ or ‘Materials’ shall be interchangeable for the other).
5. "Confidential Information” means information of a confidential nature whether oral, written or in electronic form including, but not limited to, this Contract, either party’s intellectual property, operational information, know-how, trade secrets, financial and commercial affairs, contracts, client information (including but not limited to, “Personal Information” such as: name, address, D.O.B, occupation, driver’s license details, electronic contact (email, Facebook or Twitter details), medical insurance details or next of kin and other contact information (where applicable), previous credit applications, credit history) and pricing details.
6. “Cookies” means small files which are stored on a user’s computer. They are designed to hold a modest amount of data (including Personal Information) specific to a particular client and website, and can be accessed either by the web server or the client’s computer. If the Buyer does not wish to allow Cookies to operate in the background when ordering from the website, then the Buyer shall have the right to enable / disable the Cookies first by selecting the option to enable / disable provided on the website, prior to ordering Works via the website.
7. “Price” means the Price payable (plus any Goods and Services Tax (“GST”) where applicable) for the Works as agreed between the Seller and the Buyer in accordance with clause 6 below.

Acceptance
1. The Buyer is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Buyer places an order for or accepts delivery of any Works.
2. In the event of any inconsistency between the terms and conditions of this Contract and any other prior document or schedule that the parties have entered into, the terms of this Contract shall prevail.
3. Any amendment to the terms and conditions contained in this Contract may only be amended in writing by the consent of both parties.
4. The Buyer acknowledges that the supply of Works on credit shall not take effect until the Buyer has completed a credit application with the Seller and it has been approved with a credit limit established for the account.
5. In the event that the supply of Works request exceeds the Buyers credit limit and/or the account exceeds the payment terms, the Seller reserves the right to refuse delivery.
6. Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 226 of the Contract and Commercial Law Act 2017 or any other applicable provisions of that Act or any Regulations referred to in that Act.

Errors and Omissions
1. The Buyer acknowledges and accepts that the Seller shall, without prejudice, accept no liability in respect of any alleged or actual error(s) and/or omission(s):
  1. resulting from an inadvertent mistake made by the Seller in the formation and/or administration of this Contract; and/or
  2. contained in/omitted from any literature (hard copy and/or electronic) supplied by the Seller in respect of the Works.
2. In the event such an error and/or omission occurs in accordance with clause 3.1, and is not attributable to the negligence and/or wilful misconduct of the Seller; the Buyer shall not be entitled to treat this Contract as repudiated nor render it invalid.

Authorised Representatives
1. Unless otherwise limited as per clause 4.2 the Buyer agrees that should the Buyer introduce any third party to the Seller as the Buyer’s duly authorised representative, that once introduced that person shall have the full authority of the Buyer to order any Works or Materials on the Buyer’s behalf and/or to request any variation to the Works on the Buyer’s behalf (such authority to continue until all requested Works have been completed or the Buyer otherwise notifies the Seller in writing that said person is no longer the Buyer’s duly authorised representative).
2. In the event that the Buyer’s duly authorised representative as per clause 4.1 is to have only limited authority to act on the Buyer’s behalf then the Buyer must specifically and clearly advise the Seller in writing of the parameters of the limited authority granted to their representative.
3. The Buyer specifically acknowledges and accepts that they will be solely liable to the Seller for all additional costs incurred by the Seller (including the Seller’s profit margin) in providing any Works, Materials or variation/s requested by the Buyer’s duly authorised representative (subject always to the limitations imposed under clause 4.2 (if any)).

Change in Control
1. The Buyer shall give the Seller not less than fourteen (14) days prior written notice of any proposed change of ownership of the Buyer and/or any other change in the Buyer’s details (including but not limited to, changes in the Buyer’s name, address, contact phone or fax number/s, change of trustees, or business practice). The Buyer shall be liable for any loss incurred by the Seller as a result of the Buyer’s failure to comply with this clause.

Price and Payment
1. At the Seller’s sole discretion the Price shall be either:
  1. as indicated on invoices provided by the Seller to the Buyer in respect of Works performed or Materials supplied; or
  2. the Seller’s quoted Price (subject to clause 6.2) which shall be binding upon the Seller provided that the Buyer shall accept the Seller’s quotation in writing within thirty (30) days.
2. The Seller reserves the right to change the Price:
  1. if a variation to the Materials which are to be supplied is requested; or
  2. if a variation to the Works originally scheduled (including any applicable plans or specifications) is requested; or
  3. where additional Works are required due to the discovery of hidden or unidentifiable difficulties (including, but not limited to, poor weather conditions, limitations to accessing the site including the Buyer being in breach of clause 10.7, availability of machinery, safety considerations, prerequisite work by any third party not being completed, obscured building defects, change of design and/or specifications, hard rock barriers below the surface or iron reinforcing rods in concrete, hidden pipes and wiring in walls etc) which are only discovered on commencement of the Works; or
  4. in the event of increases to the Seller in the cost of labour or materials which are beyond the Seller’s control.
3. Variations will be charged for on the basis of the Seller’s quotation, and will be detailed in writing, and shown as variations on the Seller’s invoice. The Buyer shall be required to respond to any variation submitted by the Seller within ten (10) working days. Failure to do so will entitle the Seller to add the cost of the variation to the Price. Payment for all variations must be made in full at the time of their completion.
4. At the Seller’s sole discretion a non-refundable deposit of up to twenty percent (20%) may be required.
5. Time for payment for the Works being of the essence, the Price will be payable by the Buyer on the date/s determined by the Seller, which may be:
  1. on completion of the Works; or
  2. by way of progress payments in accordance with the Seller’s specified progress payment schedule. Such progress payment claims may include the reasonable value of authorised variations and the value of any Materials delivered to the worksite but not yet installed;
  3. for certain approved Buyer’s, due twenty (20) days following the end of the month in which a statement is posted to the Buyer’s address or address for notices;
  4. the date specified on any invoice or other form as being the date for payment; or
  5. failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Buyer by the Seller.
6. At the agreement of both parties, payment of the Price may be subject to retention by the Buyer of an amount (hereafter called the "Retention Money"), being a set amount or equal to a percentage of the Price. The Buyer shall hold the Retention Money for the agreed period following completion of the Works during which time all Works are to be completed and/or all defects are to be remedied. Any Retention Money applicable to this Contract is to be dealt with in accordance with section 18(a) to 18(i) of the Construction Contracts Act 2002.
7. Payment may be made by cash, cheque, bank cheque, electronic/on-line banking, credit card (a surcharge may apply per transaction), or by any other method as agreed to between the Buyer and the Seller.
8. The Seller may in its discretion allocate any payment received from the Buyer towards any invoice that the Seller determines and may do so at the time of receipt or at any time afterwards. On any default by the Buyer the Seller may re-allocate any payments previously received and allocated. In the absence of any payment allocation by the Seller, payment will be deemed to be allocated in such manner as preserves the maximum value of the Seller’s Purchase Money Security Interest (as defined in the PPSA) in the Materials.
9. The Buyer shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Buyer by the Seller nor to withhold payment of any invoice because part of that invoice is in dispute, unless the request for payment by the Seller is a claim made under the Construction Contracts Act 2002.
10. Unless otherwise stated the Price does not include GST. In addition to the Price, the Buyer must pay to the Seller an amount equal to any GST the Seller must pay for any supply by the Seller under this or any other agreement for the sale of the Materials. The Buyer must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Buyer pays the Price. In addition, the Buyer must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.

Provision of the Works
1. Subject to clause 7.2 it is the Seller’s responsibility to ensure that the Works start as soon as it is reasonably possible.
2. The Works’ commencement date will be put back and the completion date extended by whatever time is reasonable in the event that the Seller claims an extension of time (by giving the Buyer written notice) where completion is delayed by an event beyond the Seller’s control, including but not limited to any failure by the Buyer to:
  1. make a selection; or
  2. have the site ready for the Works including ensuring the site complies with clause 10.7 ; or
  3. notify the Seller that the site is ready.
3. The Seller may deliver the Works by separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.
4. Any time specified by the Seller for delivery of the Works is an estimate only and the Seller will not be liable for any loss or damage incurred by the Buyer as a result of delivery being late. However both parties agree that they shall make every endeavour to enable the Works to be supplied at the time and place as was arranged between both parties. In the event that the Seller is unable to supply the Works as agreed solely due to any action or inaction of the Buyer, then the Seller shall be entitled to charge a reasonable fee for re-supplying the Works at a later time and date, and/or for storage of the Materials.

Risk
1. If the Seller retains ownership of the Materials under clause 13 then:
  1. where the Seller is supplying Materials only, all risk for the Materials shall immediately pass to the Buyer on delivery and the Buyer must insure the Materials on or before delivery. Delivery of the Materials shall be deemed to have taken place immediately at the time that either;
    1. the Buyer or the Buyer’s nominated carrier takes possession of the Materials at the Seller’s address; or
    2. the Materials are delivered by the Seller or the Seller’s nominated carrier to the Buyer’s nominated delivery address (even if the Buyer is not present at the address).
  2. where the Seller is to both supply and install Materials then the Seller shall maintain a contract works insurance policy until the Works are completed. Upon completion of the Works all risk for the Works shall immediately pass to the Buyer.
2. Notwithstanding the provisions of clause 8.1 if the Buyer specifically requests the Seller to leave Materials outside the Seller’s premises for collection or to deliver the Materials to an unattended location then such materials shall always be left at sole risk of the Buyer and it shall be the Buyer’s responsibility to ensure the Materials are insured adequately or at all. In the event that such Materials are lost, damaged or destroyed then replacement of the Materials shall be at the Buyer’s expense.
3. The Seller shall be entitled to rely on the accuracy of any plans, specifications and other information provided by the Buyer. The Buyer acknowledges and agrees that in the event that any of this information provided by the Buyer is inaccurate, the Seller accepts no responsibility for any loss, damages, or costs however resulting from these inaccurate plans, specifications or other information.
4. In the event the Buyer gives information relating to measurements and quantities of Materials required in completing the Works, it is the Buyer’s responsibility to verify the accuracy of the measurements and quantities, before the Buyer or the Seller places an order based on these measurements and quantities. The Seller accepts no responsibility for any loss, damages, or costs however resulting from the Buyer’s failure to comply with this clause.
5. In the event that the electrical wiring is required to be re-positioned at the request of any third party contracted by the Buyer then the Buyer agrees to notify the Seller immediately upon any proposed changes. The Buyer agrees to indemnify the Seller against any additional costs incurred with such a relocation of electrical wiring. All such variances shall be invoiced in accordance with clause 6.2.
6. The Buyer warrants that any structures to which the Materials are to be affixed are able to withstand the installation of the Materials and that any electrical connections (including, but not limited to, meter boxes, main switches, circuit breakers, and electrical cable) are of suitable capacity to handle the Materials once installed. If for any reason (including the discovery of asbestos, defective or unsafe wiring or dangerous access to roofing) that the Seller, its employees or contractors reasonably form the opinion that the Buyers premises is not safe for the installation of Materials to proceed then the Seller shall be entitled to delay installation of the Materials (in accordance with the provisions of clause 7.2 above) until the Seller is satisfied that it is safe for the installation to proceed. The Seller may at its sole discretion agree to bring the premises up to a standard suitable for installation to proceed but all such Works undertaken and any additional Materials supplied shall be treated as a variation and be charged for in addition to the Price.
7. The Buyer acknowledges that the Seller is only responsible for parts that are replaced by the Seller and that in the event that other parts/Materials, subsequently fail, the Buyer agrees to indemnify the Seller against any loss or damage to the Materials, or caused by the Materials, or any part thereof howsoever arising.
8. In the event that the Buyer requests the Seller to provide temporary repairs, any such repair and/or installation shall be done at the Buyer’s risk. The Seller shall accept no liability whatsoever for any resulting damage, indirect and/or consequential loss and/or expense incurred as a result of such action.

Insurance
1. The Seller shall maintain a public liability insurance policy indemnifying the Seller against claims in respect of loss or damage against any property or injury or death or illness to any person arising out of the operations of the Seller or any of its subcontractors in connection with the execution of the Works.

Compliance With Laws
1. The Buyer and the Seller shall comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities that may be applicable to the Works including any WorkSafe health and safety laws relating or any other relevant safety standards or legislation pertaining to the Works.
2. The Buyer shall obtain (at the expense of the Buyer) all licenses and approvals that may be required for the Works.
3. Notwithstanding clause 10.1 and pursuant to the Health & Safety at Work Act 2015 (the “HSW Act”) the Seller agrees at all times comply with sections 28 and 34 of the “HSW Act” with meeting their obligations for health and safety laws in the workplace regardless of whether they may be the party in control of the site or where they may be acting as a subcontractor for the Buyer who has engaged a thirty party head contractor.
4. All work will be tested to ensure that it is electrically safe and is in accordance with the wiring rules and other standards applying to the electrical installation under the Electrical Safety Regulations. All of the cabling work will comply with all relevant Australian and New Zealand Wiring standards.
5. If during the course of installation when the Works are being conducted within and around switchboards that if the same is found defective or deemed to be unsafe by the Seller, then the Seller shall notify the Buyer immediately. The power if isolated will not be re-energised until such time as the existing condition has been rectified and made safe in accordance to the Electrical Safety Regulations. The Buyer accepts and agrees that any costs associated with the rectification Works including any Materials and labour shall be to the Buyer’s account.
6. Any live services or Works undertaken near live conductors where it is safe to do so shall be dealt with in accordance with Australian and New Zealand Wiring standards being “Safe working on Low Voltage Electrical Installations, relevant Commonwealth and Statutory Acts and Work Place Regulations”. The Seller’s live services procedures are designed to eliminate risk of injury to the Seller’s employees, damage to the Buyer’s installations and unexpected power disconnections. It may in some cases require disconnection and isolation of the installation to undertake such Works for which additional charges may be applicable. This shall be invoiced in accordance with clause 6.2.
7. The Buyer agrees that any animals present on at the site will be properly contained and shall not have the ability to interfere with the Seller’s staff or the Works/Materials at any time, failure to do so will enable the Seller to delay the Works in accordance with clause 7.2.

Access
1. The Buyer shall ensure that the Supplier has clear and free access to the work site at all times to enable them to deliver the Works including the site complying with clause 10.7 at all times. The Supplier shall not be liable for any loss or damage to the site (including, without limitation, damage to pathways, driveways and concreted or paved or grassed areas) unless due to the negligence of the Supplier.
2. Site Inductions
  1. in the event the Buyer requires an employee or sub-contractor of the Supplier to undertake a site induction during working hours, the Buyer will be liable to pay the hourly charges for that period. If any induction is needed to be undertaken prior to the commencement date then the Buyer shall be liable to pay the Supplier’s standard (and/or overtime, if applicable) hourly labour rate; or
  2. where the Supplier is in control of the site, the Buyer and/or the Buyers third party contractors must initially carry out the Supplier’s Health & Safety induction course before access to the site will be granted. Inspection of the site during the course of the Works will be by appointment only and unless otherwise agreed, in such an event the Buyer and/or third party acting on behalf of the Buyer must at all times be accompanied by the Supplier.

Underground Locations And Hidden Services
1. Prior to the Seller commencing any work the Buyer must advise the Seller of the precise location of all underground services on the site and clearly mark the same. The underground mains & services the Buyer must identify include, but are not limited to, electrical services, gas services, sewer services, pumping services, sewer connections, sewer sludge mains, water mains, irrigation pipes, telephone cables, fibre optic cables, oil pumping mains, and any other services that may be on site.
2. Whilst the seller will take all care to avoid damage to any underground services the Buyer agrees to indemnify the Seller in respect of all and any liability claims, loss, damage, costs and fines as a result of damage to services not precisely located and notified as per clause 12.1.

Title
1. The Seller and the Buyer agree that ownership of the Materials shall not pass until:
  1. the Buyer has paid the Seller all amounts owing to the Seller; and
  2. the Buyer has met all of its other obligations to the Seller.
2. 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.
3. It is further agreed that:
  1. until ownership of the Materials passes to the Buyer in accordance with clause 13.1 that the Buyer is only a bailee of the Materials and unless the Materials have become fixtures must return the Materials to the Seller on request;
  2. the Buyer holds the benefit of the Buyer’s insurance of the Materials on trust for the Seller and must pay to the Seller the proceeds of any insurance in the event of the Materials being lost, damaged or destroyed;
  3. the production of these terms and conditions by the Seller shall be sufficient evidence of the Seller’s rights to receive the insurance proceeds direct from the insurer without the need for any person dealing with the Seller to make further enquiries;
  4. the Buyer must not sell, dispose, or otherwise part with possession of the Materials other than in the ordinary course of business and for market value. If the Buyer sells, disposes or parts with possession of the Materials then the Buyer must hold the proceeds of any such act on trust for the Seller and must pay or deliver the proceeds to the Seller on demand;
  5. the Buyer should not convert or process the Materials or intermix them with other goods but if the Buyer does so then the Buyer holds the resulting product on trust for the benefit of the Seller and must sell, dispose of or return the resulting product to the Seller as it so directs;
  6. unless the Materials have become fixtures the Buyer irrevocably authorises the Seller to enter any premises where the Seller believes the Materials are kept and recover possession of the Materials;
  7. the Seller may recover possession of any Materials in transit whether or not delivery has occurred;
  8. the Buyer shall not charge or grant an encumbrance over the Materials nor grant nor otherwise give away any interest in the Materials while they remain the property of the Seller;
  9. the Seller may commence proceedings to recover the Price of the Materials sold notwithstanding that ownership of the Materials has not passed to the Buyer.

Personal Property Securities Act 1999 (“PPSA”)
1. Upon assenting to these terms and conditions in writing the Buyer acknowledges and agrees that:
  1. these terms and conditions constitute a security agreement for the purposes of the PPSA; and
  2. a security interest is taken in all Materials and/or collateral (account) – being a monetary obligation of the Buyer to the Seller for Works – that have previously been supplied and that will be supplied in the future by the Seller to the Buyer.
2. The Buyer undertakes to:
  1. sign any further 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;
  2. 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 Materials charged thereby;
  3. not register, or permit to be registered, a financing statement or a financing change statement in relation to the Materials and/or collateral (account) in favour of a third party without the prior written consent of the Seller; and
  4. immediately advise the Seller of any material change in its business practices of selling Materials which would result in a change in the nature of proceeds derived from such sales.
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.
4. The Buyer waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, and 131 of the PPSA.
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.
6. The Buyer shall unconditionally ratify any actions taken by the Seller under clauses 14.1 to 14.5.
7. Subject to any express provisions to the contrary (including those contained in this clause 14), nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.

Security and Charge
1. In consideration of the Seller agreeing to supply the Works, the Buyer charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Buyer either now or in the future, to secure the performance by the Buyer of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
2. The Buyer indemnifies the Seller from and against all the Seller’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising the Seller’s rights under this clause.
3. The Buyer irrevocably appoints the Seller and each director of the Seller as the Buyer’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 15 including, but not limited to, signing any document on the Buyer’s behalf.

Defects And Returns
1. The Buyer shall inspect the Materials on delivery and shall within seven (7) days of delivery (time being of the essence) notify the Seller 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 Materials within a reasonable time following delivery if the Buyer believes the Materials are defective in any way. If the Buyer shall fail to comply with these provisions the Materials shall be presumed to be free from any defect or damage. For defective Materials, 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 Materials or repairing the Materials.
2. Materials will not be accepted for return other than in accordance with 16.1 above.
3. Returns will only be accepted provided that:
  1. the Buyer has complied with the provisions of clause 16.1; and
  2. the Seller has agreed in writing to accept the return of the Materials; and
  3. the Materials are returned at the Buyer’s cost within seven (7) days of the delivery date; and
  4. the Seller will not be liable for Materials which have not been stored or used in a proper manner; and
  5. the Materials are returned in the condition in which they were delivered and with all packaging material, brochures and instruction material in as new condition as is reasonably possible in the circumstances.
4. Non-stocklist items or Materials made to the Buyer’s specifications are under no circumstances acceptable for credit or return.

Warranties
1. For Materials not manufactured by the Seller, the warranty shall be the current warranty provided by the manufacturer of the Materials. The Seller shall not be bound by nor be responsible for any term, condition, representation or warranty other than that which is given by the manufacturer of the Materials.
2. To the extent permitted by statute, no warranty is given by the Seller as to the quality or suitability of the Materials for any purpose and any implied warranty, is expressly excluded. The seller shall not be responsible for any loss or damage to the Materials, or caused by the Materials, or any part thereof however arising.
3. In the case of second hand Materials, the Buyer acknowledges that full opportunity to inspect the same has been provided and accepts the same with all faults and that no warranty is given by the Seller as to the quality or suitability for any purpose and any implied warranty, statutory or otherwise, is expressly excluded. The Seller shall not be responsible for any loss or damage to the Materials, or caused by the Materials, or any part thereof however arising.

Consumer Guarantees Act 1993
1. If the Buyer is acquiring Materials for the purposes of a trade or business, the Buyer acknowledges that the provisions of the Consumer Guarantees Act 1993 do not apply to the supply of Materials by the Seller to the Buyer.

Intellectual Property
1. Where the Seller has designed, drawn, written plans or a schedule of Works, or created any products for the Buyer, then the copyright in all such designs, drawings, documents, plans, schedules and products shall remain vested in the Seller, and shall only be used by the Buyer at the Seller’s discretion. Under no circumstances may such designs, drawings and documents be used without the express written approval of the Seller.
2. The Buyer warrants that all designs, specifications or instructions given to the Seller will not cause the Seller to infringe any patent, registered design or trademark in the execution of the Buyer’s order and the Buyer agrees to indemnify the Seller against any action taken by a third party against the Seller in respect of any such infringement.
3. The Buyer agrees that the Seller may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings, plans or products which the Seller has created for the Buyer.

Default and Consequences of Default
1. Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at the Seller’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
2. If the Buyer owes the Seller any money the Buyer shall indemnify the Seller from and against all costs and disbursements incurred by the Seller in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, the Seller’s collection agency costs, and bank dishonour fees).
3. Further to any other rights or remedies the Seller may have under this Contract, if a Buyer has made payment to the Seller, and the transaction is subsequently reversed, the Buyer shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by the Seller under this clause 20, where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Buyer’s obligations under this Contract.
4. Without prejudice to the Seller’s other remedies at law the Seller shall be entitled to cancel all or any part of any order of the Buyer which remains unfulfilled and all amounts owing to the Seller shall, whether or not due for payment, become immediately payable if:
  1. any money payable to the Seller becomes overdue, or in the Seller’s opinion the Buyer will be unable to make a payment when it falls due;
  2. the Buyer has exceeded any applicable credit limit provided by the Seller;
  3. the Buyer becomes insolvent or bankrupt, 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
  4. a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Buyer or any asset of the Buyer.

Cancellation
1. Without prejudice to any other rights or remedies the Seller may have, if at any time the Buyer is in breach of any obligation (including those relating to payment and/or failure to remedy any breach in respect of this Contract within ten (10) working days of receipt by the Buyer of such notice/s) then the Seller may suspend the Works immediately. The Seller will not be liable to the Buyer for any loss or damage the Buyer suffers because the Seller has exercised its rights under this clause.
2. The Seller may cancel any contract to which these terms and conditions apply or cancel delivery of Works at any time before the Works are commenced by giving written notice to the Buyer. On giving such notice the Seller shall repay to the Buyer any sums paid in respect of the Price, less any amounts owing by the Buyer to the Seller for Works already performed. The Seller shall not be liable for any loss or damage whatsoever arising from such cancellation.
3. In the event that the Buyer cancels the delivery of Works the Buyer shall be liable for any and all loss incurred (whether direct or indirect) by the Seller as a direct result of the cancellation (including, but not limited to, any loss of profits).
4. Cancellation of orders for products made to the Buyer’s specifications, or for non-stocklist items, will definitely not be accepted once production has commenced, or an order has been placed.

Privacy Policy
1. All emails, documents, images or other recorded information held or used by the Seller is Personal Information as defined and referred to in clause 22.3 and therefore considered confidential. The Seller acknowledges its obligation in relation to the handling, use, disclosure and processing of Personal Information pursuant to the Privacy Act 1993 (“the Act”) including Part II of the OECD Guidelines and as set out in Schedule 5A of the Act and any statutory requirements where relevant in a European Economic Area “EEA” then the EU Data Privacy Laws (including the General Data Protection Regulation “GDPR”) (collectively, “EU Data Privacy Laws”). The Seller acknowledges that in the event it becomes aware of any data breaches and/or disclosure of the Buyers Personal Information, held by the Seller that may result in serious harm to the Buyer, the Seller will notify the Buyer in accordance with the Act and/or the GDPR. Any release of such Personal Information must be in accordance with the Act and the GDPR (where relevant) and must be approved by the Buyer by written consent, unless subject to an operation of law.
2. Notwithstanding clause 22.1, privacy limitations will extend to the Seller in respect of Cookies where transactions for purchases/orders transpire directly from the Seller’s website. The Seller agrees to display reference to such Cookies and/or similar tracking technologies, such as pixels and web beacons (if applicable), such technology allows the collection of Personal Information such as the Buyer’s:
  1. IP address, browser, email client type and other similar details;
  2. tracking website usage and traffic; and
  3. reports are available to the Seller when the Seller sends an email to the Buyer, so the Seller may collect and review that information (“collectively Personal Information”)

In order to enable / disable the collection of Personal Information by way of Cookies, the Buyer shall have the right to enable / disable the Cookies first by selecting the option to enable / disable, provided on the website prior to proceeding with a purchase/order via the Seller’s website.

The Buyer authorises the Seller or the Seller’s agent to:
1. access, collect, retain and use any information about the Buyer;
  1. (including, name, address, D.O.B, occupation, driver’s license details, electronic contact (email, Facebook or Twitter details), medical insurance details or next of kin and other contact information (where applicable), previous credit applications, credit history or any overdue fines balance information held by the Ministry of Justice) for the purpose of assessing the Buyer’s creditworthiness; or
  2. for the purpose of marketing products and services to the Buyer.
2. 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.
Where the Buyer is an individual the authorities under clause 22.3 are authorities or consents for the purposes of the Privacy Act 1993.
The Buyer shall have the right to request the Seller for a copy of the Personal Information about the Buyer retained by the Seller and the right to request the Seller to correct any incorrect Personal Information about the Buyer held by the Seller.

Suspension of Works
1. Where the Contract is subject to the Construction Contracts Act 2002, the Buyer hereby expressly acknowledges that:
  1. 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:
    1. the payment is not paid in full by the due date for payment in accordance with clause 6.4 and/or any subsequent amendments or new legislation and no payment schedule has been given by the Buyer; or
    2. 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
    3. 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
    4. the Seller has given written notice to the Buyer of its intention to suspend the carrying out of construction work under the construction Contract.
  2. if the Seller suspends work, it:
    1. is not in breach of Contract; and
    2. 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
    3. is entitled to an extension of time to complete the Contract; and
    4. 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.
  3. if the Seller exercises the right to suspend work, the exercise of that right does not:
    1. affect any rights that would otherwise have been available to the Seller under the Contract and Commercial Law Act 2017; or
    2. 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;
  4. due to any act or omission by the Buyer, the Buyer effectively precludes the Seller from continuing the Works or performing or complying with the Seller’s obligations under this Contract, then without prejudice to the Seller’s other rights and remedies, the Seller may suspend the Works immediately after serving on the Buyer a written notice specifying the payment default or the act, omission or default upon which the suspension of the Works is based. All costs and expenses incurred by the Seller as a result of such suspension and recommencement shall be payable by the Buyer as if they were a variation.
2. If pursuant to any right conferred by this Contract, the Seller suspends the Works and the default that led to that suspension continues un-remedied subject to clause 21.1 for at least ten (10) working days, the Seller shall be entitled to terminate the Contract, in accordance with clause 21.

Service of Notices
1. Any written notice given under this Contract shall be deemed to have been given and received:
  1. by handing the notice to the other party, in person;
  2. by leaving it at the address of the other party as stated in this Contract;
  3. by sending it by registered post to the address of the other party as stated in this Contract;
  4. if sent by facsimile transmission to the fax number of the other party as stated in this Contract (if any), on receipt of confirmation of the transmission;
  5. if sent by email to the other party’s last known email address.
2. Any notice that is posted shall be deemed to have been served, unless the contrary is shown, at the time when by the ordinary course of post, the notice would have been delivered.

Trusts
1. If the Buyer at any time upon or subsequent to entering in to the Contract is acting in the capacity of trustee of any trust (“Trust”) then whether or not the Seller may have notice of the Trust, the Buyer covenants with the Seller as follows:
  1. the Contract extends to all rights of indemnity which the Buyer now or subsequently may have against the Trust and the trust fund;
  2. the Buyer has full and complete power and authority under the Trust to enter into the Contract and the provisions of the Trust do not purport to exclude or take away the right of indemnity of the Buyer against the Trust or the trust fund. The Buyer will not release the right of indemnity or commit any breach of trust or be a party to any other action which might prejudice that right of indemnity;
  3. the Buyer will not without consent in writing of the Seller (the Seller will not unreasonably withhold consent), cause, permit, or suffer to happen any of the following events:
    1. the removal, replacement or retirement of the Buyer as trustee of the Trust;
    2. any alteration to or variation of the terms of the Trust;
    3. any advancement or distribution of capital of the Trust; or
    4. any resettlement of the trust property.

Unpaid Seller’s Rights
1. Where the Buyer has left any item with the Seller for repair, modification, exchange or for the Seller to perform any other service in relation to the item and the Seller has not received or been tendered the whole of any moneys owing to it by the Buyer, the Seller shall have, until all moneys owing to the Seller are paid:
  1. a lien on the item; and
  2. the right to retain or sell the item, such sale to be undertaken in accordance with any legislation applicable to the sale or disposal of uncollected Materials.
2. The lien of the Seller shall continue despite the commencement of proceedings, or judgment for any moneys owing to the Seller having been obtained against the Buyer.

General
1. Any dispute or difference arising as to the interpretation of these terms and conditions or as to any matter arising hereunder, shall be submitted to, and settled by, either adjudication in accordance with the Construction Contracts Act 2002 and/or by arbitration in accordance with the Arbitration Act 1996 or its replacement(s).
2. The failure by either party to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect that party’s right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
3. These terms and conditions and any contract to which they apply shall be governed by the laws of New Zealand and are subject to the jurisdiction of the courts of Hamilton in New Zealand.
4. The Seller shall be under no liability whatsoever to the Buyer for any indirect and/or consequential 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 (alternatively the Seller’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Works).
5. The Seller may licence and/or assign all or any part of its rights and/or obligations under this Contract without the Buyer’s consent.
6. The Buyer cannot licence or assign without the written approval of the Seller.
7. The Seller may elect to subcontract out any part of the Works but shall not be relieved from any liability or obligation under this Contract by so doing. Furthermore, the Buyer agrees and understands that they have no authority to give any instruction to any of the Seller’s sub-contractors without the authority of the Seller.
8. The Buyer agrees that the Seller may amend their general terms and conditions for subsequent future contracts with the Buyer by disclosing such to the Buyer in writing. These changes shall be deemed to take effect from the date on which the Buyer accepts such changes, or otherwise at such time as the Buyer makes a further request for the Seller to provide Works to the Buyer.
9. Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.
10. Both parties warrant that they have the power to enter into this Contract and have obtained all necessary authorisations to allow them to do so, they are not insolvent and that this Contract creates binding and valid legal obligations on them.