Terms and conditions

  1. Terms of Contract
    1. Pro Clima NZ Ltd (“The Seller”) will supply goods to the purchaser (“The Buyer”) on the information provided and terms and conditions contained in the credit application form and these terms of trade (together, the “Terms of Trade”) unless the Seller agrees in writing to change them.
    2. These Terms of Trade shall govern the supply of any goods or services by the Seller to the Buyer (“Goods”).
    3. The Seller will not be bound by any conditions included in the Buyer’s order unless it accepts them in writing.
    4. If the Seller does not accept any conditions included in the Buyer’s order and the Buyer accepts delivery of Goods delivered under that order, the acceptance of delivery by the Buyer will be deemed to be acceptance by the Buyer of these Terms of Trade notwithstanding anything that may be stated to the contrary in the Buyer’s inquiries or the Buyer’s orders.
    5. The Seller has the right to not accept any orders or to cancel any orders which it has accepted if due to circumstances beyond the Seller’s control it would be impractical or uneconomic to fill the order.
  2. Collection and Use of Information
    1. The Buyer authorises the Seller to collect, retain, and use any information about the Buyer for the purpose of assessing the Buyer’s credit worthiness and enforcing any rights under these Terms of Trade.
    2. The Buyer authorises the Seller to disclose or seek any information about the Buyer for the purposes of clause 2.1. The Buyer acknowledges that this clause contains all the necessary authorities and consents required under the Privacy Act 1993 (if any).
  3. Payment
    1. The Buyer must pay for the Goods in full prior to despatch of the Goods from the Seller’s premises unless account payment terms have been agreed to. Account payment terms are 20th month following date of invoice.
    2. Failure to pay for Goods by the due date may result in further deliveries being stopped until the overdue payments have been received by the Seller. The Seller reserves the right to request from the Buyer such additional guarantee or security as it may think necessary to secure to the Seller all sums due by the Buyer and may refuse to supply further Goods to the Buyer until such security is given.
    3. In the event of late payment (and to enable the extra costs incurred by the Seller arising from late payment to be recovered) the Seller may charge interest on a daily basis to the Buyer at a rate of 5% per annum on amounts outstanding until the overdue amounts are paid with the interest accruing after together with any judgment or enforceable order which the Seller may obtain against the Buyer. The Buyer will also be liable to pay all of the Seller’s expenses and legal costs incurred in the enforcement or attempted enforcement of the Seller’s rights under these Terms of Trade, and for obtaining a remedy for the Buyer’s failure to pay for the Goods when due. The Seller may, at its sole discretion, assign, sell, or transfer any debt owed under these Terms of Trade or register any debt for enforcement with any debt collection agency or other third party.
    4. The Buyer may not set off against the price payable for the Goods or any other moneys owing under these Terms of Trade any claims which the Buyer might have against the Seller.
    5. The Seller may accept and apply payments from the Buyer in respect of any indebtedness and the Seller will not be bound by any conditions or qualifications attaching to such payments.
  4. Risk and Ownership
    1. All risk of the Goods will pass to the Buyer upon delivery.
    2. Even if risk has passed, ownership of the Goods will not pass to the Buyer until the Buyer has paid for them in full.
    3. Until the Buyer has paid for the Goods in full:-
      1. The Buyer holds the Goods as fiduciary for the Seller and will deal with them as agent for and on behalf of the Seller (but will not hold itself out as the Seller’s agent to any third parties).
      2. If directed by the Seller the Buyer will store the Goods so that they can be clearly recognised as the property of the Seller.
      3. If the Buyer resells the Goods the proceeds of any resale will belong to the Seller and the Buyer will pay the same into a separate account for which separate records are kept and all claims which the Buyer holds against third parties will be handed over to the Seller.
      4. The Buyer irrevocably gives the Seller and its agents the right to enter the Buyer’s premises without giving notice and to remove any of the Goods and resell them.
      5. If any of the Goods are incorporated in or used as material for other Goods before paid for then the property in the whole of such other Goods shall remain with the Seller until payment has been received and all of the Seller’s rights in respect of the Goods shall extend to those other Goods.
      6. Failure by the Buyer either to store the Goods as required in clause 4.3.2 or to separately account for sale proceeds under clause 4.3.1 will not prejudice the Seller’s claim to the Goods or the sale proceeds.
  5. PPSR
    1. The Buyer acknowledges that:
      1. these Terms of Trade create a security interest (as that term is defined in the Personal Properties Securities Act 1999 (“PPSA”)) in favour of the Seller in any Goods supplied or leased by the Seller to the Buyer.
      2. the Buyer undertakes to do all things and provide all information that the Seller deems necessary or desirable to enable the Seller to register a financing statement over the Buyer and perfect any security interests granted in favour of the Seller, immediately upon request by the Seller; and
      3. the Buyer waives its right to receive a verification statement under s 157 of the PPSA, and to the fullest extent permitted by the law, sections 114(1)(a), 116, 120(2), 121, 125, 129, 131, 133 and 134 of the PPSA do not apply to any enforcement by the Seller.
  6. Delivery
    1. The Seller will arrange despatch by their nominated agent unless otherwise agreed in writing. All reasonable endeavours will be used to make delivery at the time specified in the confirmation or otherwise, but if for any reason whatsoever delivery shall be delayed the Seller shall not be responsible for any loss whatsoever sustained by the Buyer or any other person by reason of such delay. The Buyer will compensate the Seller for any costs incurred (including storage and additional transport costs) for any delay or cancellation in delivery where such delay or cancellation is the Buyer’s or its agents’, employees’, or contractors’ fault.
    2. Proof of delivery information will not be provided by the Seller beyond 60 days from date of invoicing.
    3. Delivery is completed where:
      1. if the Buyer is picking up, the Buyer or its agent collects the Goods from the Seller’s premises or other such collection point;
      2. if the Buyer is arranging delivery, upon the Buyer’s agent, shipping carrier, or nominated third person collecting the Goods from the Seller’s premises or other such collection point; or
      3. if the Seller is arranging delivery, upon the Goods arriving at the Buyer’s nominated point of delivery.
    4. The unloading of the Goods at the Buyer’s delivery points is the Buyer’s responsibility, and in the event the Seller or a related party assists, completes, or facilities with unloading, the Buyer holds the Seller harmless from and against any claim, cause of action, or liability arising out of the unloading of the Goods at the delivery point.
  7. Warranties
    1. Subject to the following clauses, the Seller warrants that the Goods are manufactured in accordance with the usual practices of the building industry and are free from all manufacturing defects.
    2. No warranty is given and the Seller shall not be liable for:-
      1. Loss caused by any factors beyond the Seller’s control;
      2. Loss caused by the Seller’s negligence;
      3. Failure to deliver the Goods by any specified dates; or
      4. Any indirect or consequential loss of any kind.
    3. The Seller’s total liability under these Terms of Trade or in the supply of any Goods is limited at the Seller’s option to either:-
      1. replacing the defective or damaged Goods, or
      2. refunding the price of the defective or damaged Goods.
    4. Except under clauses 7.1 and 7.3 the Seller has no liability for the Goods and gives no representations or warranties in relation to them. All other warranties expressed or implied by law are excluded. This clause is in addition to, and not in substitution of, clause 7.2.
  8. Claims
    1. The Seller will at its option repair or replace defective Goods or give a credit for refund as long as the Buyer’s claim has specifically identified the Goods and the defect and the Buyer returns the defective Goods to the Seller in their delivered state within seven days after date of invoice, and the Seller, acting reasonably, accepts the Buyer’s claim.
    2. Goods must be returned freight paid and the Buyer can claim for any reasonable freight charges (provided that the Seller, acting reasonably, accepts the Buyer’s claim).
    3. The Buyer shall have no claim in relation to Goods which it has processed, altered or utilised.
  9. Cancellation
    1. The Buyer may not cancel any order or part of it without the Seller’s written consent and as a condition of giving such consent the Seller may require that it be reimbursed for the cost of reallocating labour and materials and other direct or indirect costs incurred by the Seller
    2. The Seller shall be entitled without liability to the Buyer to cancel an order or delivery of an order, or recover any Goods that the Buyer has not paid for in full, if:
      1. The Seller has reasonable grounds to believe the Buyer is insolvent,
      2. the Seller or Buyer is refused any required licences or permits in respect of the Goods;
      3. the Buyer fails to pay in full any invoices issued by the Seller, or for any Goods, by the due date;
      4. the Seller believes on reasonable grounds that the Buyer has breached, or is about to breach, any term under these Terms of Trade;
      5. the Buyer does anything that, in the Seller’s reasonable opinion, prejudices the Seller’s rights under these Terms of Trade; or
      6. for any of the reasons contained in clauses 1.5, 3.2, or as otherwise entitled to under these Terms of Trade.
    3. The Seller may at any time at its sole discretion withdraw the provision of credit to the Buyer.
  10. Personal Guarantee
    1. If the Buyer is a company or any other entity, other than a sole trader or unlimited liability partnership, the directors, trustees, partners or managing persons signing these Terms of Trade, in consideration of the Seller entering into this contract and agreeing to provide the Buyer with credit, also personally guarantee to the Seller performance by the Buyer of all of the Buyer’s obligations and payment of all moneys owed by the Buyer to the Seller under these Terms of Trade. For clarity, the Buyer and the guarantors are jointly and severally liable for performance of obligations and payment of moneys owed under these Terms of Trade.
  11. General
    1. If the Seller waives any breach of these Terms of Trade by the Buyer the waiver will not affect the Seller’s right to exercise its rights under these Terms of Trade at any future time.
    2. The Seller shall not be liable for delay or failure to perform any of its obligations under these Terms of Trade where the cause of such delay or failure is beyond its control.
    3. The Buyer may not assign any of its rights or obligations under these Terms of Trade without the prior written consent of the Seller.
    4. No amendment to these Terms of Trade will be effective unless it is agreed in writing between the parties.
    5. These Terms of Trade represent the entire agreement between the parties, and it replaces all earlier agreements, conditions, warranties, and representations, whether oral or written, between the parties relating to the supply of Goods.
    6. Each clause in these Terms of Trade is severable and if any clause is held to be illegal or unenforceable then the remaining clauses will remain in full force and effect.
    7. These Terms of Trade shall be interpreted in accordance with and governed by the laws of New Zealand and the New Zealand courts shall have exclusive jurisdiction over any dispute in relation to these Terms of Trade or the Goods.
    8. Pro Clima designs and trade names are the property of Pro Clima NZ Ltd and may not be copied or used without Pro Clima NZ Ltd’s express written consent.