Air-Rite | Air-Rite T&C's

Air-Rite - Air Conditioning, Heat Pumps, New Plymouth, Taranaki

06 759 4999

office@air-rite.co.nz

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Air-Rite T&C's

Definitions
1. “Air-Rite Ltd” shall mean the company Air-Rite Ltd its successors and assigns or any person acting on behalf of and with the authority of Air-Rite Ltd.
2. “Customer” shall mean the Customer (or any person acting on behalf of and with the authority of the Customer) as described on any quotation, work authorisation or other form as provided by Air-Rite Ltd to the Customer.
3. “Guarantor” means that person (or persons), or entity, who agrees to be liable for the debts of the Customer on a principal debtor basis.
4. “Goods” shall have the same meaning as in s2 Sale of Goods Act 1908 and are Goods supplied by Air-Rite Ltd to the Customer (and where the context so permits shall include any supply of Services as hereinafter defined) and includes Goods described on any invoices, quotation, work authorisation or any other forms as provided by Air-Rite Ltd to the Customer.
5. “Services” shall mean all services supplied by Air-Rite Ltd to the Customer and includes any advice or recommendations (and where the context so permits shall include any supply of Goods as defined above).
6. “Price” or “contract price” shall mean the price payable for the Goods as agreed between Air-Rite Ltd and the Customer in accordance with clause 5 of this contract.
7. “PPSA” means the Personal Property Securities Act 1999, and associated regulations, as amended from time to time.
8. “PPSR” means the Personal Property Securities Register under the PPSA.
Quotation
1. The Customer may request a Quotation from Air-Rite Ltd, setting out the price of the Goods and/or Services to be supplied. If the Quotation is acceptable to the Customer, the Customer may place an order within the timeframe as identified upon the quotation.

Acceptance
1. Any instructions received by Air-Rite Ltd from the Customer for the supply of Goods and/or the Customer’s acceptance of Goods supplied by Air-Rite Ltd shall constitute acceptance of the terms and conditions contained herein.
2. Where more than one Customer has entered into this agreement, the Customers shall be jointly and severally liable for all payments of the Price.
3. Upon acceptance of these terms and conditions by the Customer the terms and conditions are definitive binding and can only be amended with the written consent of Air-Rite Ltd.
4. The Customer shall give Air-Rite Ltd not less than fourteen (14) days prior written notice of any proposed change of ownership of the Customer or any change in the Customer’s name and/or any other change in the Customer’s details (including but not limited to, changes in the Customer’s address, facsimile number, or business practice). The Customer shall be liable for any loss incurred by Air-Rite Ltd as a result of the Customer’s failure to comply with this clause.
Terms and Conditions
1. These Terms and Conditions and any subsequent Terms and Conditions issued by Air-Rite Ltd shall apply to all orders for Goods and/or Services made by the Customer after the date and time at which these conditions are first brought to the notice of, any employee, staff member or representative of the Customer. It shall be the Customer’s responsibility to ensure that these conditions are promptly brought to the attention of any appropriate staff member of the Customer, and accordingly any order made by the Customer after the date and time described above in this clause shall be deemed to be an acceptance of these Terms and Conditions

Price
1. At Air-Rite Ltd sole discretion the Price shall be either:

- as indicated on invoices provided by Air-Rite Ltd to the Customer in respect of Goods supplied; or
- Air-Rite Ltd quoted Price (subject to clause 2) which shall be binding upon Air-Rite Ltd provided that the Customer shall accept Air-Rite Ltd Quotation in writing within thirty (30) days.

1. Air-Rite Ltd reserves the right to change the Price in the event of a variation to Air-Rite Ltd Quotation.
2. Air-Rite Ltd reserves the right to implement a surcharge for alterations to specifications of products and/or services after the order has been placed.
3. Air-Rite Ltd at their sole discretion reserves the right to charge travel time at Air-Rite Ltd standard hourly rate.
4. GST and other taxes and duties that may be applicable shall be added to the Price except when they are expressly included in the Price.
Payment, Late Payment, Default of Payment and Consequences of Default of Payment
1. At Air-Rite Ltd sole discretion a deposit may be required.
2. At Air-Rite Ltd sole discretion payment for approved Customers shall be made by instalments in accordance with Air-Rite Ltd payment schedule.
3. Payment will be made by cash, or by cheque, or by bank cheque, or by direct credit to our bank account (details of which will be provided on invoice) or by any other method as agreed to between the Customer and Air-Rite Ltd.
4. Time for payment for the Goods shall be of the essence and will be stated on the invoice or any other forms. If no time is stated then payment shall be due twenty (20) days following the end of the month in which a statement is posted or emailed to the Customer’s address or address for notices.
5. Late payment shall incur interest at the rate of 2.5% per month calculated on a daily basis and invoiced monthly. This shall be payable on any monies outstanding under the Contract from the date payment was due, until the date payment is received by Air-Rite Ltd, but without prejudice to Air-Rite Ltd other rights or remedies due under the contract. Air-Rite Ltd reserves the right to undertake this action without prior notice to the Customer.
6. Any monies that remain outstanding to be paid once the date of payment has fallen due may be referred to a debt collection agency. Air-Rite Ltd reserves the right to undertake this action without prior notice to the Customer. The Customer shall indemnify Air-Rite Ltd from and against all costs associated with the collection of any outstanding monies; including but is not limited to debt collection agency costs, legal fees, Court costs and all reasonable sums incurred by Air-Rite Ltd in the pursuance of satisfying payment.
7. Without prejudice to any other remedies Air-Rite Ltd may have, if at any time the Customer is in breach of any obligation (including those relating to payment) Air-Rite Ltd may suspend or terminate the supply of Goods and/or Services to the Customer and any of its other obligations under the Terms and Conditions. Air-Rite Ltd will not be liable to the Customer for any loss or damage the Customer suffers because Air-Rite Ltd has exercised its rights under this clause.
8. If any account remains overdue thirty (30) days then an amount of the greater of $20.00 or 10.00% of the amount overdue (up to a maximum of $200.00) shall be levied for administration fees which sum shall become immediately due and payable.
9. Without prejudice to Air-Rite Ltd other remedies at law Air-Rite Ltd shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to Air-Rite Ltd shall, whether or not due for payment, become immediately payable in the event that:
  - Any money payable to Air-Rite Ltd becomes overdue, or in Air-Rite Ltd opinion the Customer will be unable to meet its payments as they fall due; or
  - The Customer 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
  - A receiver, manager, liquidator (provisional or otherwise) or similar personal is appointed in respect of the Customer or any asset of the Customer;
10. The Customer shall not at any time set-off as against any amount payable by the Customer pursuant to this contract or any other contract between us any amount owed or allegedly owed by Air-Rite Ltd to the Customer.

Delivery of Goods
1. At Air-Rite Ltd sole discretion delivery of the Goods shall take place when the Customer takes possession of the Goods at the Customer’s nominated address (in the event that the Goods are delivered by Air-Rite Ltd or Air-Rite Ltd nominated carrier).
2. At Air-Rite Ltd sole discretion the costs of delivery are:

- in addition to the Price; or
- for the Customer’s account.

1. The Customer shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery. In the event that the Customer is unable to take delivery of the Goods as arranged then Air-Rite Ltd shall be entitled to charge a reasonable fee for redelivery.
2. Delivery of the Goods to a third party nominated by the Customer is deemed to be delivery to the Customer for the purposes of this agreement.
3. Air-Rite Ltd may deliver the Goods by separate instalments. Each separate instalment shall be invoiced and paid for in accordance with the provisions in these terms and conditions.
4. The failure of Air-Rite Ltd to deliver shall not entitle either party to treat this contract as repudiated.
5. Air-Rite Ltd shall not be liable for any loss or damage whatever due to failure by Air-Rite Ltd to deliver the Goods (or any of them) promptly or at all.

Risk
1. If Air-Rite Ltd retains ownership of the Goods nonetheless, all risk for the Goods passes to the Customer on delivery.
2. If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Customer, Air-Rite Ltd is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by Air-Rite Ltd is sufficient evidence of Air-Rite Ltd rights to receive the insurance proceeds without the need for any person dealing with Air-Rite Ltd to make further enquiries.

Title
1. Air-Rite Ltd and Customer agree that ownership of the Goods shall not pass until:

- the Customer has paid Air-Rite Ltd all amounts owing for the particular Goods; and
- the Customer has met all other obligations due by the Customer to Air-Rite Ltd in respect of all contracts between Air-Rite Ltd and the Customer.

1. Receipt by Air-Rite Ltd 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 Air-Rite Ltd ownership or rights in respect of the Goods shall continue.
2. It is further agreed that:

- where practicable the Goods shall be kept separate and identifiable until Air-Rite Ltd shall have received payment and all other obligations of the Customer are met; and
- until such time as ownership of the Goods shall pass from Air-Rite Ltd to the Customer Air-Rite Ltd may give notice in writing to the Customer to return the Goods or any of them to Air-Rite Ltd. Upon such notice being given the rights of the Customer to obtain ownership or any other interest in the Goods shall cease; and
- the Customer is only a bailee of the Goods and until such time as Air-Rite Ltd has received payment in full for the Goods then the Customer shall hold any proceeds from the sale or disposal of the Goods on trust for Air-Rite Ltd; and
- until such time that ownership in the Goods passes to the Customer, if the Goods are converted into other products, the parties agree that Air-Rite Ltd will be the owner of the end products; and
- if the Customer fails to return the Goods to Air-Rite Ltd then Air-Rite Ltd or Air-Rite Ltd agent may enter upon and into land and premises owned, occupied or used by the Customer, or any premises where the Goods are situated as the invitee of the Customer and take possession of the Goods, and Air-Rite Ltd will not be liable for any reasonable loss or damage suffered as a result of any action by Air-Rite Ltd under this clause.

Personal Property Securities Act 1999 (“PPSA”)
1. Upon assenting to these terms and conditions in writing the Customer acknowledges and agrees that:

- These terms and conditions constitute a security interest in the Goods supplied by Air-Rite Ltd to the Customer for the purposes of the PPSA as security for payment by the Customer of all amounts due under the Contract.
- A security interest is taken in all Goods previously supplied by Air-Rite Ltd to the Customer (if any) and all Goods that will be supplied in the future by Air-Rite Ltd to the Customer.

1. The Customer undertakes to:

- Sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which Air-Rite Ltd may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register;
- Indemnify, and upon demand reimburse, Air-Rite Ltd 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;
- Not register a financing change statement or a change demand without the prior written consent of Air-Rite Ltd; and
- Immediately advise Air-Rite Ltd 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.

1. Air-Rite Ltd and the Customer agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms and conditions.
2. The Customer waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA.
3. Unless otherwise agreed to in writing by Air-Rite Ltd, the Customer waives its right to receive a verification statement in accordance with section 148 of the PPSA.
4. The Customer agrees to treat the security interest in the Goods as a continuing and subsisting security with priority over a registered general security interest and any unsecured creditors, regardless of whether the goods have become fixtures at any time before payment has been made for them.

Dispute Resolution
1. Air-Rite Ltd will endeavour to resolve any dispute between the Customer and itself without the need for Court proceedings. Any such attempt is without legal prejudice. If the matter cannot be resolved without intervention the matter will be referred to the appropriate authority. All costs associated with such proceedings shall be borne by the Customer.

Defects
1. The Customer shall inspect the Goods on delivery and shall within seven (7) days of delivery (time being of the essence) notify Air-Rite Ltd of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Customer shall afford Air-Rite Ltd an opportunity to inspect the Goods within a reasonable time following delivery if the Customer believes the Goods are defective in any way. If the Customer shall fail to comply with these provisions the Goods shall be presumed to be free from any defect or damage. For defective Goods, which Air-Rite Ltd has agreed in writing that the Customer is entitled to reject, Air-Rite Ltd liability is limited to either (at Air-Rite Ltd discretion) replacing the Goods or repairing the Goods.

Returns
1. Returns will only be accepted provided that:

- Air-Rite Ltd has agreed in writing to accept the return of the Goods; and
- The Goods are returned at the Customer’s cost within seven (7) days of the delivery date; and
- Air-Rite Ltd will not be liable for Goods which have not been stored or used in a proper manner; and
- The Goods 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.

1. Air-Rite Ltd may, (in its discretion), accept the return of Goods for credit but this may incur a handling fee of fifteen percent (15%) of the value of the returned Goods plus any freight.

Warranty
1. For Goods not manufactured by Air-Rite Ltd, the warranty shall be the current warranty provided by the manufacturer of the Goods. Air-Rite Ltd 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 Goods.
2. Air-Rite Ltd warrants that it will repair, replace, alter or make good [at our option, but free of charge except for matters specified later in this clause] any defects in the services provided and/or Goods supplied and/or equipment manufactured by us which are defective or deficient in any way because of our workmanship and/or materials.
3. Air-Rite Ltd must receive written notice of the claim by the Customer within three (3) months from the date the services were provided and/or Goods and/or equipment were delivered.
4. This warranty undertaking is subject to the following conditions:
  - No attempt to repair the defective Services and/or Goods and/or equipment is to have been made by any person not authorised by Air-Rite Ltd;
  - All Goods and/or equipment supplied must not have been misused;
  - The Goods and/or equipment supplied must not have been modified in any way by the Customer, its Agent or representative or by any person whatsoever not authorised by Air-Rite Ltd;
  - The Goods and/or equipment must have been adequately maintained in accordance with our maintenance and operating instructions which are inclusive of standard good practice guidelines;
  - Identification or serial numbers on any defective Goods and/or equipment must not have been altered, defaced or interfered with in any way whatsoever;
  - If required by us, [written notice will be given] the Customer must return to Air-Rite Ltd, at the Customer’s own expense and risk, any alleged faulty materials, such materials shall immediately become the property of Air-Rite Ltd; Damage caused to Goods and/or equipment and/or to its electrical and electronic components and apparatus resulting from the incorrect use of utilities (including water, steam and compressed air) and from over voltage or voltage surcharges are excluded from this undertaking;
  - Damage caused to the Goods and/or equipment by corrosion (either chemical or otherwise) is excluded from this undertaking;
  - Damage caused to the Goods and/or equipment supplied by the Customer’s faulty design or installation is excluded from this undertaking;
  - Damage caused to the Goods and/or equipment supplied by the Customer, in whatever form taken, is excluded from this undertaking.
  - If Air-Rite Ltd elects to repair or replace any defective Goods, such work shall be undertaken at such place as Air-Rite Ltd may reasonably specify and the Customer shall be responsible at its cost and risk for shipment of the defective Goods to the place specified.
  - The undertakings given in clause 14.1. shall apply, under the same terms and conditions as those originally applicable, to any of the Services, Goods or equipment [or part thereof] that have been repaired, replaced, altered or made good under the clause but only to the extent of the unexpired portion of the undertaking specified under the warranty clause.

Consumer Guarantees Act 1993
1. If the Customer is acquiring Goods for the purposes of a trade or business, the Customer acknowledges the provisions of the Consumer Guarantees Act 1993 do not apply to the supply of Goods by Air-Rite Ltd to the Customer.

Intellectual Property
1. Where Air-Rite Ltd has designed, drawn or written Goods for the Customer, then the copyright in those designs and drawings and documents shall remain vested in Air-Rite Ltd, and shall only be used by the Customer at Air-Rite Ltd discretion.
2. The Customer warrants that all designs or instructions to Air-Rite Ltd will not cause Air-Rite Ltd to infringe any patent, registered design or trademark in the execution of the Customer’s order and the Customer agrees to indemnify Air-Rite Ltd against any action taken by a third party against Air-Rite Ltd in respect of any such infringement.
3. The Customer agrees that Air-Rite Ltd may use any documents, designs, drawings or products created by Air-Rite Ltd for the purposes of advertising, marketing, or entry into any competition.

Security and Charge
1. Despite anything to the contrary contained herein or any other rights which Air-Rite Ltd may have howsoever:

- where the Customer and/or the Guarantor (if any) is the owner of land, realty or any other asset capable of being charged, both the Customer 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 Air-Rite Ltd or Air-Rite Ltd nominee to secure all amounts and other monetary obligations payable under these terms and conditions. The Customer and/or the Guarantor acknowledge and agree that Air-Rite Ltd (or Air-Rite Ltd nominee) shall be entitled to lodge where appropriate a caveat, which caveat shall be withdrawn once all payments and other monetary obligations payable hereunder have been met.
- should Air-Rite Ltd elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Customer and/or Guarantor shall indemnify Air-Rite Ltd from and against all Air-Rite Ltd costs and disbursements including legal costs on a solicitor and own client basis.
- the Customer and/or the Guarantor (if any) agree to irrevocably nominate constitute and appoint Air-Rite Ltd or Air-Rite Ltd nominee as the Customer’s and/or Guarantor’s true and lawful attorney to perform all necessary acts to give effect to the provisions of this clause 6.

Cancellation
1. Air-Rite Ltd may cancel any contract to which these terms and conditions apply or cancel delivery of Goods at any time before the Goods are delivered by giving written notice to the Customer. On giving such notice Air-Rite Ltd shall repay to the Customer any sums paid in respect of the Price. Air-Rite Ltd shall not be liable for any loss or damage whatever arising from such cancellation.
2. In the event that the Customer cancels delivery of the Goods the Customer shall be liable for any loss incurred by Air-Rite Ltd (including, but not limited to, any loss of profits) up to the time of cancellation.

Privacy Act 1993
1. The Customer and the Guarantor/s (if separate to the Customer) authorises Air-Rite Ltd to:

- collect, retain and use any information about the Customer, for the purpose of assessing the Customer’s creditworthiness or marketing products and services to the Customer; and
- disclose information about the Customer, whether collected by Air-Rite Ltd from the Customer directly or obtained by Air-Rite Ltd 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 Customer.

1. Where the Customer and/or Guarantors are an individual the authorities under clause 6 are authorities or consents for the purposes of the Privacy Act 1993.
2. The Customer and/or Guarantors shall have the right to request Air-Rite Ltd for a copy of the information about the Customer and/or Guarantors retained by Air-Rite Ltd and the right to request Air-Rite Ltd to correct any incorrect information about the Customer and/or Guarantors held by Air-Rite Ltd.

Unpaid Air-Rite Ltd Rights
1. Where the Customer has left any item with Air-Rite Ltd for repair, modification, exchange or for Air-Rite Ltd to perform any other Service in relation to the item and Air-Rite Ltd has not received or been tendered the whole of the Price, or the payment has been dishonoured, Air-Rite Ltd shall have:

- A lien on the item;
- The right to retain the item for the Price while Air-Rite Ltd is in possession of the item;
- A right to sell the item.

1. The lien of Air-Rite Ltd shall continue despite the commencement of proceedings, or judgement for the Price having been obtained.

Construction Contracts Act 2002
1. The Customer hereby expressly acknowledges that:
  - Air-Rite Ltd 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 Customer, and:
    1. The payment is not paid in full by the due date for payment and no payment schedule has been given by the Customer; or
    2. A scheduled amount stated in a payment schedule issued by the Customer in relation to the payment claim is not paid in full by the due date for its payment; or
    3. The Customer has not complied with an adjudicator’s notice that the Customer must pay an amount to Air-Rite Ltd by a particular date; and
    4. Air-Rite Ltd has given written notice to the Customer of its intention to suspend the carrying out of construction work under the construction contract.
  - If Air-Rite Ltd 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 Customer or by any person claiming through the Customer; 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.
  - If Air-Rite Ltd exercises the right to suspend work, the exercise of that right does not:
    1. Affect any rights that would otherwise have been available to Air-Rite Ltd under the Contractual Remedies Act 1979; or
    2. Enable the Customer to exercise any rights that may otherwise have been available to the Customer under that Act as a direct consequence of Air-Rite Ltd suspending work under this provision.

General
1. The Consumer Guarantees Act 1993, the Fair Trading Act 1986 and other statutes may imply warranties, consumer guarantees or conditions or impose obligations upon Air-Rite Ltd which cannot by law (or which an only to a limited extent by law) be excluded or modified. In respect of any such implied warranties, consumer guarantees, conditions or terms imposed on Air-Rite Ltd, Air-Rite Ltd liability shall, where it is allowed, be excluded or if not able to be excluded be limited to the minimum extent as required by the relevant statute.
2. 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 New Plymouth.
4. Air-Rite Ltd shall be under no liability whatever to the Customer for any indirect loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by Air-Rite Ltd of these terms and conditions, including any cancellation of the contract or any negligence on the part of Air-Rite Ltd, its servants, agents or contractors, nor shall Air-Rite Ltd be liable for any loss, damage or injury caused to the Customer’s servants, agents, contractors, buyers, visitors, tenants, trespassers or other persons. The Customer shall indemnify the Company against any claim by any such person.
5. Notwithstanding the provisions of these terms and conditions, if it is determined by any court of competent jurisdiction that Air-Rite Ltd is liable to the Customer, whether in contract, or in tort (including negligence), strict liability or by virtue of the breach of any statutory duty or otherwise, then it is agreed that out total liability in respect of all claims that the Customer, its servants, agents, or contractors may make against us will be limited to the contract price actually paid by the Customer and received by Air-Rite Ltd.
6. Air-Rite Ltd may license or sub-contract all or any part of its rights and obligations without the Customer’s consent.
7. Air-Rite Ltd reserves the right to review these terms and conditions at any time. If, following any such review, there is to be any change to these terms and conditions, then that change will take effect from the date on which Air-Rite Ltd notifies the Customer of such change.
8. The provisions of the Contractual Remedies Act 1979 shall apply to this contract as if section 15(d) were omitted from the Contractual Remedies Act 1979.
9. Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, drought, storm or other event beyond the reasonable control of either party.
10. The failure by Air-Rite Ltd to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect Air-Rite Ltd right to subsequently enforce that provision.
11. All Customers and potential Customers agree that when emailing Air-Rite Ltd, either directly or indirectly, your email may be added to our database for future emailing campaigns and offers.

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