Our terms of business
As a reliable and trusted business in todays climate we have a responsibility to our staff, our suppliers, partners and our customers. These terms of business define how we deal with the legal bits, to ensure we meet our responsibilities
In these terms of trade:
“Account” means the Customer’s account with the Vendor;
“Customer” means the person or entity making an order and any person acting with ostensible authority on behalf of the party named as
“Goods” means goods supplied by the Vendor to the Customer at any time;
“Guarantor” means any party executing a Guarantee of the Customer’s Account with the Vendor;
“Order” or “Orders” means any order or orders of the Customer (written or verbal) to the Vendor to supply Goods and/or Services;
“PPSA” means the Personal Property Securities Act 1999;
“Services” means services supplied by the Vendor to the Customer at any time;
“Terms” means these Terms and Conditions of Trade;
“Vendor” or “us” or “our” means Powerex Limited.
Each work order (whether written or verbal) will constitute acceptance by the Customer of these Terms, provided that they have previously
received a copy of these terms
(a) The material provided in our quotation is copyright and is not to be made available to a third party without our written consent. The email that our quote is delivered in also forms part of our offer and that should also be read when considering our offer
(b) Unless otherwise specified, where a written quotation is given by the Vendor for the supply of Goods and/or Services:
(i) the quotation will be valid for thirty (30) days from the date of issue, acceptance after this period will be subject to our written
(ii) the Vendor reserves the right to alter the quotation if:
(a) the Customer requests variations to the supply of Goods and Services; and/or
(b) there are specific H & S requirements that were not identified to us at time of tender; and/or
(c) there are circumstances beyond the Vendor’s control.
(c) where particular equipment has been specified, the quotation will include for exacting or identical looking equipment of the same or better
specification to that as specified
(d) Unless specifically detailed in the quotation, any prime cost or provisional sums or monetary allowances of any nature, or GST are
additional to the quoted price
Prices are subject to change without notice. Unless otherwise specified all Orders will be charged at prices prevailing at the date of delivery of
the Goods and/or Services, or as per the Vendors quotation
5. Access for Installation and Provision of Services
(a) The Customer will provide at no cost to the Vendor, adequate access and all necessary facilities including but not limited to power, lighting,
unloading, hoisting and lifting facilities, labour, site preparation for the purposes of installation and provision of Services and employee
amenities which comply with all statutory requirements.
(b) If the Customer fails to supply adequate access the Vendor may make a further charge to the Customer to cover the additional costs
incurred arising from such failure as the Vendor considers reasonable.
(c) Upon the Vendor delivering Goods the Customer will ensure adequate safe storage facilities are provided for protection against theft and
damage of any Goods, equipment or other items belonging to the Vendor at no cost to the Vendor.
(d) Where installation or supply of the Goods or provision of the Services requires co-ordination with other trades the Customer will arrange for
all such trades to co-ordinate delivery and acknowledges that delays may arise as a result.
(e) Delivery times will be extended to cover delays caused by strikes, lockouts, prohibitions, non-availability of materials or any circumstances
beyond the Vendor’s control.
(f) Time will in no case be of the essence in respect of the delivery of Goods or the provision of Services. The Vendor will not be responsible for
any delay in the delivery of Goods or the provision of Services and the Customer will not be entitled to cancel orders because of any such
delay. Dates for delivery of Goods and provision of Services are given in good faith and are not to be treated as a condition of sale or
6. Health and Safety in Employment Act 1992
The Vendor will be responsible for the actions of its employees in terms of section 15 of the Health and Safety in Employment Act 1992
(“HSEA”). The Customer will be responsible for compliance with the HSEA in respect of the Customer’s site and will advise the Vendor prior to
commencement of any work of any hazards.
7. Terms of Payment
(a) Unless otherwise specified, payment for all Goods and Services will be made no later than:
(i) the 7th day following supply for residential Customers;
(ii) the 20th day of the month following supply for commercial Customers;
(iii) Progress Payments claimed under the Construction Contracts Act 2002 shall be made no later than 20 days after a payment claim
is served on the Customer.
(b) The Vendor may, at its sole discretion, require payment of a deposit by the Customer prior to processing any Order.
(c) An administration fee may be charged on all overdue amounts in addition to any other charges pursuant to this clause.
(d) Interest may accrue on all amounts overdue at the compounding rate of 2.5% per month and will be calculated on a daily basis on the
outstanding balance until payment is received in full by the Vendor.
(e) All costs of or incurred by the Vendor as a result of a default by the Customer including, but not limited to, administration charges, debt
collection costs and legal costs as between solicitor and client are payable by the Customer.
(f) If the Customer defaults in any payment or commits any act of bankruptcy or any act which would render it liable to be wound up or if a
resolution is passed or proceedings are filed for the winding up of the Customer or if a receiver is appointed for all or any assets of the
Customer, the Vendor may cancel any Order without prejudice to any other rights it may have and payment for all completed work up to that
point in time will immediately become due.
8. Payment Allocation
The Vendor may in its discretion allocate any payment received from the Customer towards any invoice that the Vendor determines and may
do so at the time of receipt or at any time afterwards. On any default by the Customer the Vendor may re-allocate any payments previously
received and allocated. In the absence of any payment allocation by the Vendor, payment will be deemed to be allocated in such manner as
preserves the maximum value of the Vendor’s Purchase Money Security Interest (as defined in the PPSA) in the products.
(a) The Vendor will retain ownership of all Goods supplied until it receives payment in full of all amounts owing by the Customer for all Orders.
(b) If any of the Goods are attached, fixed or incorporated in or used as material for other goods before payment is made ownership in the
whole of the other goods will be and remain with the Vendor until payment is made. The Vendor’s Security Interest in the Goods will continue
in the terms of section 82 of the PPSA.
(c) The Vendor will have a right to stop and retrieve the Goods in transit whether or not ownership has passed.
(d) Until payment is made by the Customer, the Customer agrees:
(i) to enable the Goods to be readily identifiable as the property of the Vendor;
(ii) to hold the Goods as trustee for the Vendor and will deal with the Goods as agent for and on behalf of the Vendor (but will not hold
the Customer out as an agent of the Vendor to any third parties);
(iii) that if the Goods are re-sold, the proceeds of re-sale will belong to the Vendor and the Customer will keep the proceeds of sale in a
separate account for which separate records are kept.
10. Recovery of Goods
(a) In the event of non-payment or if payment of the Customer’s Account is overdue the Vendor will be entitled without prejudice to any other
right it has at law or in equity to enter the place where the Goods are stored whether at the Customer’s premises or property or the premises or
property of a third party for the purpose of recovering and taking possession of any Goods supplied.
(b) The Customer warrants to the Vendor that where the Goods are stored on the premises or property of a third party the Customer is acting
as agent for the third party and has the full authority of the third party to authorise entry on to the premises or property of the third party for the
purpose of recovering the Goods supplied without releasing the Customer from liability.
(c) The Vendor will not be responsible for any damage reasonably caused in the course of removal of Goods supplied whether such Goods are
in the possession of the Customer or a third party, and the Customer indemnifies the Vendor to the full extent in respect of damage caused in
the course of removal from the property of a third party.
(d) The Vendor may resell any Goods seized pursuant to this clause and apply the proceeds towards payment of the Customer’s debt to the
Vendor. Any shortfall will remain the liability of the Customer. The Customer indemnifies the Vendor for all costs and expenses including legal
costs as between solicitor and client which the Vendor may incur in recovering the Goods and any monies owed to it.
(a) Unless specified in writing, the Vendor gives 1 year workmanship warranty only.
(b) Where applicable, manufacturer’s warranties will attach to the Goods.
(c) Where the Customer is a consumer within the meaning of the Consumer Guarantees Act 1993 the Customer will have all the rights and
remedies provided under that Act but no others.
(d) Where Goods supplied are defective in terms of any condition warranty or guarantee or otherwise do not conform to the Order (other than
as to quantum), the Vendor will at its discretion replace or repair any faulty Goods or pay the cost of replacing them, but only if a claim is made
by the Customer within seven days of delivery of the Goods time being of the essence.
(e) The Customer must satisfy themselves that the goods and services as ordered from the Vendor are fit for purpose, as the vendor makes no
The Customer will be solely responsible for obtaining any necessary permits under and in compliance with all legislation, regulations, by-laws
or rules having the force of law in connection with the installation operation and provision of the Goods and Services.
13. Personal Property Securities Act 1999
(a) The Customer acknowledges that these Terms constitute a security agreement which creates a security interest in favour of the Vendor in
all Goods previously supplied by the Vendor to the Customer (if any).
(b) The Customer acknowledges and agrees that by making an Order the Customer grants a security interest (by virtue of clause 9 of these
Terms) to the Vendor in all Goods supplied by the Vendor to the Customer pursuant to that Order and any subsequent supplies of Goods to
the Customer notwithstanding anything express or implied to the contrary contained in the Customer’s purchase order and that such security
interest may be a Purchase Money Security Interest as defined in the PPSA.
(c) The Customer grants to the Vendor a Security Interest in all of the Customer’s present and after-acquired property that the Vendor has
performed services on or to or in which goods or materials supplied or financed by the Vendor have been attached or incorporated.
(d) The Customer undertakes:
(i) to sign any further documents and/or provide any further information (which information the Customer warrants to be complete,
accurate and up-to-date in all respects) which the Vendor may reasonably require to enable registration of financing statements or
financing change statements on the Personal Property Securities Register (“PPSR”);
(ii) not to register a financing change statement as defined in section 135 of the PPSA or make a demand to alter a financing statement
pursuant to section 162 of the PPSA in respect of the Goods without the prior written consent of the Vendor;
(iii) to give the Vendor not less than 14 days’ prior written notice of any proposed change in the Customer’s name and/or any other
changes in the Customer’s details (including but not limited to changes in the Customer’s address, facsimile number, email address;
trading name or business practice);
(iv) to pay all costs incurred by the Vendor in registering and maintaining any financing statement (including registering a financing
change statement) on the PPSR and/or enforcing or attempting to enforce any security interest created by these Terms including
executing subordination agreements;
(v) to be responsible for the full costs incurred by the Vendor (including actual legal fees and disbursements on a solicitor/client basis)
in obtaining an order pursuant to section 167 of the PPSA; and
(vi) to waive any rights it may have under sections 116, 119, 120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA.
(e) Pursuant to section 148 of the PPSA, unless otherwise agreed to in writing by the Vendor, the Customer waives the right to receive the
verification statement in respect of any financing statement or financing change statement relating to the security interest.
(f) To the maximum extent permitted by law, the Customer waives its rights and, with the Vendor’s agreement, contracts out of its rights under
sections referred to in sections 107(2), 8(e) and (g) to (l) of the PPSA.
(g) The Customer agrees that nothing in section 113, 114(1)(a), 117(1)(c), 133 and 134 of the PPSA will apply to these Terms, and, with the
Vendor’s agreement, contracts out of such sections.
(h) The Customer and the Vendor agree that section 109(1) of the PPSA is contracted out of in respect of particular Goods if and only for as
long as the Vendor is not the secured party with priority over all other secured parties in respect of those Goods and Services.
(i) The Customer agrees that immediately on request by the Vendor the Customer will procure from any third parties such agreement and
waivers as the Vendor may at any time require to protect the Vendor’s security position.
14. Events of Default
All payments will become immediately due to the Vendor and the Vendor may at its option suspend or terminate these Terms and/or exercise
any of the remedies available to it under these Terms in the event that:
(a) a receiver is appointed over any of the assets or undertaking of the Customer;
(b) an application for the appointment of a liquidator is filed against the Customer which remains unsatisfied for a period of 10 days, or any of
the conditions necessary to render the Customer liable to have a liquidator exist, or a liquidator is appointed;
(c) the Customer goes into voluntary liquidation, amalgamates with another company or acquires its own shares in accordance with the
Companies Act 1993;
(d) the Customer suspends payments to its creditors or makes or attempts to make an arrangement or composition or scheme with its
(e) the Customer becomes insolvent within the meaning of the Insolvency Act 2006 or is, becomes, or is presumed to be unable to pay its
debts as they fall due as defined in section 287 of the Companies Act 1993 or commits any act of bankruptcy.
15. Authority to Sell Goods and Services Supplied
Notwithstanding that title in all Goods and Services is retained by the Vendor, the Customer is authorised to sell the Goods and Services in the
ordinary course of business provided that the authority may be removed by written notice if the Vendor considers the credit of the Customer to
be unsatisfactory or if the Customer is in default in the performance of its obligations to the Vendor and will be deemed automatically revoked if any of the events in clause 14 occur.
16. Sale of Goods and Services Supplied
(a) Where Goods not already passed to the Customer are sold by the Customer in the ordinary course of business, the book debt created on
the sale and the proceeds of sale when received will be held by the Customer for the Vendor in terms of section 45 of the PPSA.
(b) Where any proceeds of sale are placed in the Customer’s bank account the funds in the Customer’s bank account will be deemed to be
held on trust for the Vendor to the extent of the proceeds of sale.
(c) Where any payments are made from the Customer’s bank account otherwise than to the Vendor, payment will be deemed to have been
made from all other funds in the Customer’s bank account and not from funds held on trust for the Vendor.
(d) The obligation to hold funds in trust imposed by this clause and the Vendor’s entitlements under the PPSA will continue for so long as the
Vendor is unpaid for all Goods and Services supplied to the Customer.
(a) The Vendor’s liability to the Customer will be limited to the value of the Order supplied out of which any such liability arose.
(b) The Sale of Goods Act 1908, the Fair Trading Act 1986 and other statutes may imply warranties or conditions or impose obligations upon
the Vendor which cannot by law (or which can only to a limited extent by law) be excluded or modified. In respect of any such implied
warranties, conditions or terms imposed on the Vendor the Vendor’s liability will, where it is allowed, be excluded or if not able to be excluded
only apply to the minimum extent required by the relevant statute.
(c) Except as otherwise provided above the Vendor will not be liable for any loss or damage of any kind whatsoever, arising from the supply of
Goods and Services by the Vendor to the Customer including consequential loss whether suffered or incurred by the Customer or another
person and whether in contract or tort (including negligence) or otherwise and irrespective of whether such loss or damage arises directly or
indirectly from Goods and Services provided by the Vendor to the Customer.
(d) The Customer will indemnify the Vendor against all claims and loss of any kind whatsoever however caused or arising and without limiting
the generality of the foregoing of this clause whether caused or arising as a result of the negligence of the Vendor or otherwise, brought by any
person in connection with any matter, act, omission, or error by the Vendor its agents or employees in connection with the Goods and
18. Construction Contracts Act
(a) All Orders that fit within the meaning of a Construction Contract pursuant to section 5 of the Construction Contracts Act 2002 (“CCA”) are
subject to the CCA, any amendments of the CCA and this clause.
(b) In providing the Services, should the Vendor encounter unforeseen or hidden problems or unsuitable conditions (including but not limited to problems underground, behind walls or roof space, under the floor, or worn, damaged or corroded fittings), the Vendor will contact the Customer forthwith and provide the Customer with an estimate of further costs to complete the work. The Customer will then have the option of accepting the further costs, or terminating any agreement on the proviso that the Customer shall pay to the Vendor all costs incurred to the date of cancellation.
(c) The Customer acknowledges that the Vendor is entitled to progress payments in accordance with sections 16 and 17 of the CCA and will
make payment on the due dates for payment as defined in section 18 of the CCA.
(d) Notwithstanding any other clause of these Terms, the Vendor may issue Payment Claims as defined in section 20 of the CCA.
(e) In the event of a dispute regarding a Payment Claim the parties will resolve the matter using the binding fast track process in Part 3 of the
(f) The Vendor does not accept any liability whatsoever for loss or damage resulting from defects in designs prepared by a third party. Any
such defects discovered by the Vendor will be brought to the attention of the Customer forthwith. If the Customer chooses to proceed with a
defective design the Customer will confirm same in writing and the Customer indemnifies the Vendor against any loss or liability arising from
the defect in design. The Vendor will be entitled to cease providing Services until such time as the indemnity is provided.
19. Suitability of Goods and Services
The Customer must satisfy itself that the Goods and Services as ordered are fit and suitable for the purpose for which they are required. The
Vendor makes no warranties or representation and expressly negates any implied or expressed condition that the Goods and Services will be
suitable for a particular purpose or use for which the Customer may use them. The Customer accepts all risk and responsibility for
consequences arising from the use of the Goods and Services whether singularly or in combination with other Goods and Services.
20. Dimensions and Specifications
(a) Dimensions and specifications contained or referred to in any Order, catalogues, brochure or other publications maintained or issued by the
Vendor are estimates only.
(b) Unless otherwise expressly agreed in writing, it is not a condition of these Terms or any Order that the Goods and Services will correspond
precisely with any dimensions and specifications recorded in an Order and customary tolerances or in the absence of customary tolerances,
reasonable tolerances will be allowed.
21. Personal Guarantee of Company Directors or Trustees
If the Customer is a Company or Trust, the Director(s) or Trustee(s) accepting these Terms by way of issuing an order (or allowing the issue of
an order by their employees) to the Vendor to supply Goods and Services and grant credit to the Customer at their request, also acknowledge
this contract in their personal capacity and jointly and severally personally guarantee as principal debtors to the Vendor the payment of any
and all moneys now or hereafter owed by the Customer to the Vendor and indemnify the Vendor against non-payment by the Customer. Any
personal liability of a Director(s) hereto will not exclude the customer in any way whatsoever from the liabilities and obligations contained in
these Terms. The Director(s) and the Customer will be jointly and severally liable under these Terms and for payment of all sums due
(a) The Customer will not assign all or any of its rights or obligations or any debt (or part thereof) under these Terms without the written
consent of the Vendor.
(b) The Vendor may also assign or sub-contract any part of the provision of the Goods and Services which is to be performed under any
(c) In respect of any assignment by the Vendor pursuant to this clause, the Assignee will be entitled to the full rights of the Vendor.
(a) In the event of any dispute arising between the Vendor and the Customer, such dispute will in the first instance be referred to mediation for
(b) In the event that resolution by mediation is not achieved to the satisfaction of both parties within 30 days of referral to mediation, either
party may then take legal action to resolve the dispute.
(c) Nothing in this clause prevents the Vendor from taking legal action to enforce payment of any debt due, nor where required to seek
interlocutory or injunctive relief.
All notices required or committed under these Terms are to be served as provided in sections 353, 359, 360 and 361 of the Property Law Act
2007 and section 387 of the Companies Act 1993, or by email, in which case notice is deemed to be given the day after sending.
25. Changes of General Terms and Conditions
(a) The Vendor may at any time refuse an order by the Customer or decline to approve any application by the Customer for any reason
(b) The existence of an account by the Customer with the Vendor does not automatically entitle the Customer to credit in the future.
(c) Failure by the Vendor to enforce any of the terms and conditions contained in these Terms will not be deemed to be a waiver of any of the
rights or obligations the Vendor has under these Terms.
(d) The Vendor may from time to time by written notice to the Customer amend, add to or repeal the trading conditions covered by these Terms
or may substitute any fresh trading conditions and such amendment, addition or substitute trading conditions will be binding on the Customer
fourteen days after the date of delivery of the notice.
26. Privacy & Electronic Communication
The Customer irrevocably agrees that:
(a) the personal information provided, obtained and retained by the Vendor about the Customer will be held and used for the provision of
providing Services to the Customer;
(b) the Vendor may provide any personal information to any third party and to obtain any information concerning the Customer from any other
(c) they must notify the Vendor of any changes in circumstances that may affect the accuracy of the information provided by the Customer to
the Vendor. If the Customer is a natural person the Customer has the right of access to and correction of any personal information held by the
(d) If the Vendor has an email address for the customer, the Vendor will fully comply with all requirements under the Unsolicited Electronic
Messages Act 2007.
(a) Clerical errors – clerical errors or omissions, whether in computation or otherwise in the quotation, acknowledgement or invoice will be
subject to correction.
b) All pricing is exclusive of any taxes or levies unless specified otherwise
(c) Force Majeure – Neither the Vendor nor the Customer will be liable to the other for any breach of these Terms by any extraordinary
occurrences which are beyond the reasonable control of the party in question.
28. Governing Law & Validity
(a) These Terms constitute the entire agreement and supersede and extinguish all prior agreements and understandings between the Vendor
and the Customer.
(b) These Terms will be interpreted in accordance with and governed by the laws of New Zealand and the New Zealand Courts will have
exclusive jurisdiction over any dispute in relation to the Goods and Services.
(c) If any provision of these Terms is invalid, void or illegal or unenforceable the validity existence, legality and enforceability of the remaining
provisions will not be affected, prejudiced or impaired.
(d) If there is inconsistency between these Terms and any order submitted by the Customer or any other arrangement between the Vendor and
Customer, these Terms prevail unless otherwise agreed in writing by the parties.