Terms of Trade

Gibson North LtdTerms & Conditions of Trade1. Definitions1.1 “GE” means Gibson North Ltd T/A Gibson Electrical, its successors and assignsor any person acting on behalf of and with the authority of Gibson North Ltd T/A Gibson Electrical.1.2 “Customer” means the person/s buying the Goods as specified in any invoice, document or order, and if there is more than one Customer is a reference to each Customer jointly and severally.1.3 “Goods” means all Goods or Services supplied by GE to the Customer at the Customer’s requestfrom time to time (where the context so permits the terms ‘Goods’ or ‘Services’ shall be interchangeable for the other).1.4 “Price” means the Price payable for the Goods as agreed between GE and the Customer in accordance with clause 5 below.2. Acceptance2.1 The Customer is taken to have exclusively accepted and is immediately bound, jointly andseverally, by these terms and conditions if the Customer places an order for Goods, or accepts Delivery.2.2 These terms and conditions may only be amended with GE’s consent in writing andshall prevail to the extent of any inconsistency with any other document or agreement 10.2 between the Customer and GE.3. Authorised Representatives3.1 Unless otherwise limited as per clause 3.2, the Customer agrees that should the Customerintroduce any third party to GE as the Customer’s duly authorised representative, that once introduced that person shall have the full authority of the Customer to order any Goods, and/or to request any variation thereto, on the Customer’s behalf (such authority to continue until all requested Goods have been delivered, or the Customer otherwise notifies GE in writing that said person is no longer the Customer’s duly authorised representative).3.2 In the event that the Customer’s duly authorised representative, as per clause 3.1, is to haveonly limited authority to act on the Customer’s behalf then the Customer must specifically and clearly advise GE in writing of the parameters of the limited authority granted to their representative.3.3 The Customer specifically acknowledges and accepts that they will be solely liable to GE for alladditional costs incurred by GE (including GE’s profit margin) in providing any Goods, or variation/s thereto, requested by the Customer’s duly authorised representative (subject always to the limitations imposed under clause 3.2 (if any)).4. Change in Control4.1 The Customer shall give GE not less than fourteen (14) days prior written notice of any proposed change of ownership of the Customer and/or any other change in the Customer’s details (including but not limited to, changes in the Customer’s name, address, contact phone or fax number/s, or business practice). The Customer shall be liable for any loss incurred by GE as a result of the Customer’s failure to comply with this clause.5. Price and Payment5.1 At GE’s sole discretion the Price shall be either:(a) as indicated on any invoice provided by GE to the Customer; or(b) the Price as at the date of Delivery, according to GE’s current price list; or (c) GE’s quoted price (subject to clause 5.2) which will be valid for the period stated inthe quotation or otherwise for a period of thirty (30) days.5.2 GE reserves the right to change the Price:(a) if a variation to the Goods which are to be supplied is requested; or(b) if a variation to the Services originally scheduled (including any applicable plans or specifications) is requested; or(c) where additional Services are required due to the discovery of hidden orunidentifiable difficulties (including, but not limited to, hard rock barriers below the surface, iron reinforcing rods in concrete, or hidden pipes and wiring, etc.) which are only discovered on commencement of the Services; or(d) in the event of increases to GE in the cost of labour or materials, which are beyond GE’s control.5.3 At GE’s sole discretion, a non-refundable deposit may be required.5.4 Time for payment for the Goods being of the essence, the Price will be payable by theCustomer on the date/s determined by GE, which may be:(a) before Delivery; or(b) on Delivery; or(c) by way of progress payments in accordance with GE’s specified progress paymentschedule. Such progress payment claims may include the reasonable value of authorised variations and the value of any Goods delivered to the Site but not yet installed; 11.3(d) due twenty (20) days following the end of the month in which a statement is posted tothe Customer’s address or address for notices; 11.4(e) the date specified on any invoice or other form as being the date for payment; or(f) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Customer by GE.5.5 Payment may be made by cash, cheque, bank cheque, electronic/on-line banking, or by any other method as agreed to between the Customer and GE.5.6 Unless otherwise stated the Price does not include GST. In addition to the Price theCustomer must pay to GE an amount equal to any GST GE must pay for any supply. by GE under this or any other agreement for the sale of the Goods. The Customer must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Customer pays the Price. In addition the Customer 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.6. Delivery and Risk 12.26.1 Delivery of the Goods (“Delivery”) is taken to occur at the time that:(a) the Customer (or the Customer’s nominated carrier) takes possession of the Goods at GE’s address; or(b) GE (or GE’s nominated carrier) delivers the Goods to the Customer’s nominated address (“Site”), even if the Customer is not present at the address.6.2 At GE’s sole discretion, any costs of Delivery are either included in, or in addition to, the 13. Price.6.3 The Customer must take Delivery, either by receipt or collection of the Goods, whenever they aretendered for Delivery. In the event that the Customer is unable to take Deliveryas arranged then GE shall be entitled to charge a reasonable fee for redelivery and/or storage.6.4 Subject to clause 6.5 it is GE’s responsibility to ensure that the Services start as soon as it is reasonably possible.6.5 The Services commencement date will be put back and the completion date extended bywhatever time is reasonable in the event that GE claims an extension of time (by giving the Customer written notice) where completion is delayed by an event beyond GE’s control, including but not limited to any failure by the Customer to:(a) make a selection; or(b) have the Site ready for the Services; or (c) notify GE that the Site is ready.6.6 Any time or date given by GE to the Customer is an estimate only. The Customer must still acceptDelivery even if late and GE will not be liable for any loss or damage incurred by the Customer as a result of Delivery being late.6.7 Risk of damage to or loss of the Goods passes to the Customer on Delivery and the Customer must insure the Goods on or before Delivery.6.8 If any of the Goods are damaged or destroyed following Delivery but prior to ownership passingto the Customer, GE is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by GE is sufficient evidence of GE’s rights to receive the insurance proceeds without the need for any person dealingwith GE to make further enquiries.6.9 If the Customer requests GE to leave Goods outside GE’s premises for collection or todeliver the Goods to an unattended location then such Goods shall be left at the Customer’s sole risk.6.10 In the event that the electrical wiring is required to be re-positioned at the request of any thirdparty contracted by the Customer then the Customer agrees to notify GE immediately upon any proposed changes. The Customer agrees to indemnify GE against any additional costs incurred with such a relocation of electrical wiring. All such variances shall be invoiced in accordance with clause The Customer warrants that any structures to which the Goods are to be affixed are able towithstand the installation thereof 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 Goods once installed. If for any reason (including the discovery of asbestos, defective or unsafe wiring or dangerous access to roofing) that GE, its employees or contractors reasonably form the opinion that the Site is not safe forthe installation of the Goods to proceed then GE shall be entitled to delay installation (in accordance with the provisions of clause 6.5 above) until GE is satisfied that it is safe to proceed. GE may at its sole discretion agree to bring the Site up to a standard suitable for installation to proceed but all such services undertaken and any additional materials supplied shall be treated as a variation and be charged for in addition to the Price.7. Accuracy of Customer’s Plans & Measurements for Orders7.1 GE shall be entitled to rely on the accuracy of any plans, specifications and other informationprovided by the Customer. The Customer acknowledges and agrees that inthe event that any of this information provided by the Customer is inaccurate, GE accepts no responsibility for any loss, damages, or costs however resulting from these inaccurate plans, specifications or other information.7.2 In the event the Customer gives information relating to measurements and quantities of Goodsrequired in completing the Services, it is the Customer’s responsibility to verify the accuracy of the measurements and quantities, before the Customer or GE places an 16. order based on these measurements and quantities. GE accepts no responsibility for 16.any loss, damages, or costs however resulting from the Customer’s failure to comply withthis clause. 8. Access8.1 The Customer shall ensure that GE has clear and free access to the Site at all times to enable them to deliver the Goods. GE shall not be liable for any loss or damage to theSite (including, without limitation, damage to pathways, driveways and concreted or paved or grassed areas), unless due to the negligence of GE.9. Underground Locations9.1 Prior to GE commencing the Services the Customer must advise GE of the precise location of all underground services on the Site and clearly mark the same. The underground mains and services the Customer 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 the Site.9.2 Whilst GE will take all care to avoid damage to any underground services the Customer agrees to indemnify GE 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 9.1.10. Title10.1 GE and the Customer agree that ownership of the Goods shall not pass until: (a) the Customer has paid GE all amounts owing to GE; and(b) the Customer has met all of its other obligations to GE.10.2 Receipt by GE 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 GE’s rights and ownership in relation to the Goods, and this agreement, shall continue.10.3 It is further agreed that, until ownership of the Goods passes to the Customer in accordance with clause 10.1:(a) the Customer is only a bailee of the Goods and must return the Goods to GE on request.(b) the Customer holds the benefit of the Customer’s insurance of the Goods on trust for GE and must pay to GE the proceeds of any insurance in the event of the Goodsbeing lost, damaged or destroyed.(c) the Customer must not sell, dispose, or otherwise part with possession of the Goodsother than in the ordinary course of business and for market value. If the Customer sells, disposes or parts with possession of the Goods then the Customer must hold the proceeds of any such act on trust for GE and must pay or deliver the proceeds to GE on demand.(d) the Customer should not convert or process the Goods or intermix them with other goods but if the Customer does so then the Customer holds the resulting product on trust for the benefit of GE and must sell, dispose of or return the resulting product to GE as it so directs.(e) the Customer irrevocably authorises GE to enter any premises where GE believes the Goods are kept and recover possession of the Goods.(f) GE may recover possession of any Goods in transit whether or not Delivery has occurred.(g) the Customer shall not charge or grant an encumbrance over the Goods nor grant nor otherwise give away any interest in the Goods while they remain the property of GE.(h) GE may commence proceedings to recover the Price notwithstanding that ownership of the Goods has not passed to the Customer.11. Personal Property Securities Act 1999 (“PPSA”)11.1 Upon assenting to these terms and conditions in writing the Customer acknowledges and agrees that:(a) these terms and conditions constitute a security agreement for the purposes of thePPSA; and(b) a security interest is taken in all Goods and/or collateral (account) – being amonetary obligation of the Customer to GE for Services – previously supplied (ifany), and that will be supplied in the future, by GE to the Customer.The Customer undertakes to:(a) sign any further documents and/or provide any further information (such informationto be complete, accurate and up-to-date in all respects) which GE may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register;(b) indemnify, and upon demand reimburse, GE for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register or releasing any registration made thereby;(c) not register a financing change statement or a change demand without the prior written consent of GE; and(d) immediately advise GE of any material change in its business practices of selling the Goods which would result in a change in the nature of proceeds derived from such sales.11.3 GE and the Customer agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms and conditions.11.4 The Customer waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA.11.5 Unless otherwise agreed to in writing by GE, the Customer waives its right to receive a verification statement in accordance with section 148 of the PPSA.11.6 The Customer shall unconditionally ratify any actions taken by GE under clauses 11.1 to 11.5. 12. Security and Charge12.1 In consideration of GE agreeing to supply the Goods, the Customer 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 Customer either now or in the future, to secure the performance by the Customer of its obligations under these terms and conditions (including, but not limited to, the payment of any money).12.2 The Customer indemnifies GE from and against all GE’s costs and disbursements including legal costs on a solicitor and own Customer basis incurred in exercising GE’s rights under this clause.12.3 The Customer irrevocably appoints GE and each director of GE as the Customer’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 12 including, but not limited to, signing any document on the Customer’s behalf.13. Customer’s Disclaimer  13.1 The Customer hereby disclaims any right to rescind, or cancel any contract with GE or to sue for damages or to claim restitution arising out of any inadvertent misrepresentation made to the Customer by GE and the Customer acknowledges that the Goods are bought relying solely upon the Customer’s skill and judgement.14. Defects and Warranty14.1 The Customer shall inspect the Goods on Delivery and shall within thirty (30) days of such time being of the essence) notify GE of any alleged defect, shortage in quantity, error or omission, damage or failure to comply with the description or quote. The Customer shall afford GE an opportunity to inspect the Goods within a reasonable time following such notification 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 GE has agreed in writing that the Customer is entitled to reject, GE’s liability is limited to either (at GE’s discretion) replacing the Goods or repairing the Goods.14.2 Goods will not be accepted for return other than in accordance with 14.1 above.14.3 Subject to the conditions of warranty set out in clause 14.4, GE warrants that if any defect in any workmanship of GE becomes apparent and is reported to GE within twelve (12) months of the date of Delivery (time being of the essence) then GE will either (at GE’s sole discretion) replace or remedy the workmanship.14.4 The conditions applicable to the warranty given by clause 14.3 are:(a) the warranty shall not cover any defect or damage which may be caused or partlycaused by or arise through:(i) failure on the part of the Customer to properly maintain any Goods; or(ii) failure on the part of the Customer to follow any instructions or guidelinesprovided by GE; or(iii) any use of any Goods otherwise than for any application specified on a quote ororder form; or(iv) the continued use of any Goods after any defect becomes apparent or wouldhave become apparent to a reasonably prudent operator or user; or (v) fair wear and tear, any accident or act of God.(b) the warranty shall cease and GE shall thereafter in no circumstances be liable under the terms of the warranty if the workmanship is repaired, altered or overhauled without GE’s consent.(c) in respect of all claims GE shall not be liable to compensate the Customer for any delay in either replacing or remedying the workmanship or in properly assessing the Customer’s claim.14.5 For Goods not manufactured by GE, the warranty shall be the current warranty provided by the manufacturer of the Goods. GE 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.14.6 In the case of second-hand Goods, the Customer acknowledges that they have had full opportunity to inspect the same and that they accept the same with all faults and that no warranty is given by GE as to the quality or suitability for any purpose and any implied warranty, statutory or otherwise, is expressly excluded. GE shall not be responsible for any loss or damage to the Goods, or caused by the Goods, or any part thereof however arising.15. Consumer Guarantees Act 199315.1 If the Customer is acquiring Goods for the purposes of a trade or business, the Customer acknowledges that the provisions of the Consumer Guarantees Act 1993 do not apply to the supply of Goods by GE to the Customer.16. Intellectual Property16.1 Where GE has designed, drawn or developed Goods for the Customer, then the copyright in any designs and drawings and documents shall remain the property of GE.16.2 The Customer warrants that all designs, specifications or instructions given to GE will not cause GE to infringe any patent, registered design or trademark in the execution of the Customer’s order and the Customer agrees to indemnify GE against any action taken by a third party against GE in respect of any such infringement.16.3 The Customer agrees that GE may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings or Goods which GE has created for the Customer.17. Default and Consequences of Default17.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of five percent (5%) per calendar month above the companies overdraft rate (and at GE’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgement.17.2 If the Customer owes GE any money the Customer shall indemnify GE from and against all costs and disbursements incurred by GE in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own Customer basis, GE’s collection agency costs, and bank dishonour fees).17.3 Without prejudice to any other remedies GE may have, if at any time the Customer is in breach of any obligation (including those relating to payment) under these terms and conditions GE may suspend or terminate the supply of Goods to the Customer. GE will not be liable to the Customer for any loss or damage the Customer suffers because GE has exercised its rights under this clause.17.4 Without prejudice to GE’s other remedies at law GE shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to GE shall, whether or not due for payment, become immediately payable if:(a) any money payable to GE becomes overdue, or in GE’s opinion the Customer will be unable to make a payment when it falls due;(b) the Customer becomes insolvent, convenes a meeting with its creditors or proposesor enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer.18. Compliance with Laws18.1 The Customer and GE shall comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities that may be applicable to the Services, including any occupational health and safety laws relating to building/construction sites and any other relevant safety standards or legislation.18.2 The Customer shall obtain (at the expense of the Customer) all licenses, approvals, applications and permits that may be required for the Services, and that are not included in the project documents provided by GE18.3 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.18.4 If during the course of installation when the Services are being conducted within and around switchboards that if the same is found defective or deemed to be unsafe by GE, then GE shall notify the Customer 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 Customer accepts and agrees that any costs associated with the rectification Services including any Goods and labour shall be to the Customer’s account.18.5 Any live Services or Services 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”. GE’s live Services procedures are designed to eliminate risk of injury to GE’s employees, damage to the Customer’s installations and unexpected power disconnections. It may in some cases require disconnection and isolation of the installation to undertake such Services for which additional charges may be applicable. This shall be invoiced in accordance with clause 5.2.19. Cancellation19.1 GE may cancel any contract to which these terms and conditions apply or cancel Delivery at any time before the Goods are delivered by giving written notice to the Customer. On giving such notice GE shall repay to the Customer any money paid by the Customer for the Goods. GE shall not be liable for any loss or damage whatsoever arising from such cancellation.19.2 In the event that the Customer cancels Delivery the Customer shall be liable for any and all loss incurred (whether direct or indirect) by GE as a direct result of the cancellation (including, but not limited to, any loss of profits).19.3 Cancellation of orders for Goods made to the Customer’s specifications, or for non- stocklist items, will definitely not be accepted once production has commenced, or an order has been placed.20. Privacy Act 199320.1 The Customer authorises GE or GE’s agent to:(a) access, collect, retain and use any information about the Customer;(i) (including any overdue fines balance information held by the Ministry of Justice) for the purpose of assessing the Customer’s creditworthiness; or(ii) for the purpose of marketing products and services to the Customer.(b) disclose information about the Customer, whether collected by GE from the Customer directly orobtained by GE from any other source, to any other credit provider or any credit reporting agency for the purposes of providing or obtaining acredit reference, debt collection or notifying a default by the Customer.20.2 Where the Customer is an individual the authorities under clause 20.1 are authorities or consents for the purposes of the Privacy Act 1993.20.3 The Customer shall have the right to request GE for a copy of the information about the Customer retained by GE and the right to request GE to correct any incorrect information about the Customer held by GE.21. Construction Contracts Act 200221.1 The Customer hereby expressly acknowledges that:(a) GE 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:(i) the payment is not paid in full by the due date for payment and no payment schedule has been given by the Customer; or  (ii) 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(iii) the Customer has not complied with an adjudicator’s notice that the Customer must pay an amount to GE by a particular date; and(iv) GE has given written notice to the Customer of its intention to suspend the carrying out of construction work under the construction contract.(b) if GE suspends work, it:(i) is not in breach of contract; and(ii) is not liable for any loss or damage whatsoever suffered, or alleged to besuffered, by the Customer or by any person claiming through the Customer; and (iii) is entitled to an extension of time to complete the contract; and(iv) keeps its rights under the contract including the right to terminate the contract;and may at any time lift the suspension, even if the amount has not been paid oran adjudicator’s determination has not been complied with.(c) if GE exercises the right to suspend work, the exercise of that right does not:(i) affect any rights that would otherwise have been available to GE under the Contractual Remedies Act 1979; or(ii) enable the Customer to exercise any rights that may otherwise have been available to the Customer under that Act as a direct consequence of GE suspending work under this provision.22. Unpaid Seller’s Rights22.1 Where the Customer has left any item with GE for repair, modification, exchange or for GE to perform any other service in relation to the item and GE has not received or been tendered the whole of any moneys owing to it by the Customer, GE shall have, until all moneys owing to GE are paid:(a) a lien on the item; and(b) 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 goods.22.2 The lien of GE shall continue despite the commencement of proceedings, or judgment for any moneys owing to GE having been obtained against the Customer.23. General23.1 The failure by GE to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect GE’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.23.2 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 Zealand.23.3 GE shall be under no liability whatsoever to the Customer for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by GE of these terms and conditions (alternatively GE’s liability shall be limited to damages which under no circumstances shall exceed the Price).23.4 The Customer shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Customer by GE nor to withhold payment of any invoice because part of that invoice is in dispute.23.5 GE may license or sub-contract all or any part of its rights and obligations without the Customer’s consent.23.6 The Customer agrees that GE may amend these terms and conditions at any time. If GE makes a change to these terms and conditions, then that change will take effect from the date on which GE notifies the Customer of such change. The Customer will be taken to have accepted such changes if the Customer makes a further request for GE to provide Goods to the Customer.23.7 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.23.8 The Customer warrants that it has the power to enter into this agreement and has obtained all necessary authorisations to allow it to do so, it is not insolvent and that this agreement creates binding and valid legal obligations on it.Please note that a print version of these terms and conditions is available by request.