Terms & Conditions
1. Agreement: All Projects are supplied on the following terms and conditions, which may be changed by HPG in any manner and at any time. The terms of this Agreement will apply to the Quote and Purchase Order.
2. Quote and Purchase Order: For any Project to be carried out by HPG for the Customer, HPG will supply to the Customer a Quote and Purchase Order, which is valid for 30 days from the date of the Quote and Purchase Order, and lapses thereafter. The Quote and Purchase Order takes effect on the date that it is accepted by the Customer (whether that acceptance is implied or express). HPG reserves the right, by notice to the Customer, to alter or amend any Quote and Purchase Order before receipt by HPG of acceptance of the Quote and Purchase Order by the Customer. HPG reserves the right, by notice to the Customer, to alter or amend any Quote and Purchase Order at any time prior to carrying out the Project, where the alteration or amendment is due to an increase in the cost to HPG of any Products and/or Services which are the subject of the Quote and Purchase Order that is beyond the control of HPG. Where the Customer requests Products and/or Services to be provided that are not included in the original Quote and Purchase Order, the Customer agrees to pay the additional costs of such Products and/or Services, and the provision of the additional Products and/or Services shall be pursuant to the terms and conditions of this Agreement. Where the Customer requests any Related Work to be carried out, HPG will use its best endeavours to source suppliers and/or contractors to carry out the Related Work, but the Customer is responsible for the commissioning, controlling, and payment for such work.
3. Obligations of HPG – HPG agrees to: Subject to the terms and conditions contained in this Agreement, carry out each Project in accordance with the Quote and Purchase Order, and to do so with reasonable skill, care and diligence.
4. Obligations of the Customer – The Customer agrees to:
(a) Pay HPG for carrying out the Project according to the Quote and Purchase Order;
(b) Follow any reasonable instructions provided by HPG about the Project;
(c) Provide HPG with access to all necessary services and amenities so as to allow HPG to carry-out the Project, provide access to the Location, and ensure that the Location remains in a state and condition that is safe for HPG and its staff and agents;
(d) Not to cause any disruption or obstruction to the carrying-out of any Project; and
(e) Ensure the Location for the Project complies with all necessary bylaws and restrictions, is structurally sound and safe (in accordance with all legislation governing safety in the workplace); Without Prejudice to any other right or remedy of HPG, if the Customer fails to carry out or perform any of its obligations pursuant to this clause 4, then HPG may charge the Customer a Services Delay Charge for each day (or part thereof) that HPG is, in its reasonable opinion, unable and/or not required to carry out or perform the Project as a result of such breach by the Customer.
5. Charges and payment
5.1 The amount charged by HPG for carrying-out any Project will be specified in the Quote and Purchase Order (as may be amended in accordance with this Agreement). All prices on the Quote and Purchase Order are inclusive of GST unless stated otherwise.
5.2 Payment for the Project is due on the due date as follows:
(a) A deposit of 50% of the total price for the Project is payable at the time of acceptance of the Quote and Purchase Order by or on behalf of the Customer; and
(b) The balance of the total price for the Project is payable without deduction or set off by the Customer to HPG on the date of and contemporaneous with installation of the Project (in each case, the ‘Due Date’).
5.3 If the Customer fails to make payment by the Due Date the Customer shall pay interest on the amount outstanding at the rate of 5% above HPG’s bank’s current variable lending rate from the due date for payment until payment is made. The Customer shall pay all costs, expenses and charges (including legal costs on a solicitor and own Customer basis) that are incurred by HPG in recovering any money owing to HPG by the Customer.
5.4 HPG has the absolute right to withhold delivery or cancel a Quote and Purchase Order where the Customer has not paid for the Products on the Due Date.
6. Delivery, Risk and Insurance
6.1 Delivery of the Products shall be deemed complete upon HPG delivering the Products at the Location.
6.2 Irrespective of whether ownership and title to the Products remains vested in HPG, risk in the Products shall pass to the Customer upon delivery. The Customer is responsible for all insurance of all Products from the time of delivery.
7.1 Ownership and title to the Products supplied as part of any Project shall remain vested in HPG and shall not pass to the Customer until the purchase price for the entire Project has been paid in full and received by HPG in accordance with clause 5.
7.2 If HPG supplies the Products as part of any Project without first obtaining payment for the same, then the Customer acknowledges and agrees that HPG is entitled at the Customer’s cost to register any security interest that HPG possesses regarding the Products supplied and their proceeds on the Personal Property Securities Register and that HPG’s security interest survives until the Customer has paid in full for all of the Products supplied. The Customer acknowledges and agrees that until payment has been made to HPG in full for all of the Products supplied as part of any Project from time to time:
(a) HPG possesses a Purchase Money Security Interest (“PMSI”) in the Products; and
(b) If the Customer sells the Products prior to payment to HPG, it will pay the proceeds derived from that dealing into a separate account for the benefit and as trustee for HPG so that those proceeds remain identifiable in connection with that dealing and the Products.
7.3 If at any time HPG has sufficient cause to exercise its rights under section 109 of the PPSA, the Customer irrevocably grants HPG (its agents and contractors) the right and licence to enter upon the Customer’s premises and/or any Location, without notice and without liability whatsoever to the Customer, or to any person or company claiming through the Customer.
7.4 The Customer covenants that it will assist and co-operate with HPG by completing any documentation and/or providing any information as may be required by HPG in order for HPG to achieve and perfect its desired security position under the PPSA.
7.5 In this clause 7 where used the following terms shall have the meanings as ascribed to them under the PPSA (Personal Property Securities Act 1999 and associated regulations): “Accessions”, “Commingled Products”, “Inventory”, “Perfect”, “Non-Purchase Money Security Interest”, “Proceeds”, “Purchase Money Security Interest” and “Security Interest”.
8. Rights of termination – HPG may immediately terminate this Agreement when any of the following events happen:
(a) If the Customer defaults in performing its obligations under this Agreement and the default, if capable of being remedied, is not remedied within 5 working days from receiving a notice specifying the default and requiring remedy; or
(b) If the Customer defaults in the performance of its obligations under this Agreement and the default is in HPG’s reasonable opinion incapable of being remedied; or
(c) If the Customer enters into a composition with its creditors, is declared bankrupt, goes into liquidation, or a receiver or a receiver and manager, or statutory receiver is appointed in respect of it;Termination of this Agreement will not prejudice or affect the rights, remedies and claims of HPG.
9. Intellectual property & use by the Customer – All of the trademarks, patents, copyright, designs (including rights of drawings, calculations, models, samples, descriptions, figures, dimension specifications and the like) or other intellectual property rights (whether or not registered) in respect of the Products and Projects owned or in respect of which HPG has rights (collectively “Intellectual Property”) remain HPG’s property notwithstanding the sale/supply of the Products/Projects to the Customer. This clause 7 survives termination of this Agreement.
10.1 HPG warrants that:
(a) The Project delivered will conform to the Quote and Purchase Order;
(b) Subject to clause 11.2, the Services will be free from material defects at the time of installation and for the period contained in the Manufacturer’s Warranty, (the “Warranty Period”);
(c) Subject to the terms of this Agreement, the warranty provided in this clause 10 is instead of, and HPG disclaims, all other warranties expressed or implied including, but not limited to, the implied warranties of merchantability and fitness for a particular purpose.
10.2 Subject to the terms of this Agreement, the repair of any defect(s) occurring during the Warranty Period is the absolute limit of HPG’s liability howsoever arising under or in connection with any breach of these warranties provided that the Customer gives written notice to HPG within 24 hours of discovery of the defect and provides HPG (or its staff, contractors and agents) with immediate access to undertake such repairs as HPG considers necessary to remedy any defect.
11. Limitation of liability
11.1 The warranties provided in clause 10 replace all other representations or warranties (statutory, expressed or implied) and all representations and warranties (excepting those which may not be lawfully excluded) are specifically excluded. The foregoing exclusions and the limitations contained in clauses 11.2 and 11.3 do not apply to rights granted to the Customer under the Consumer Guarantees Act 1993, unless the Customer is acquiring the services for the purposes of a business in which case the provisions contained in the Consumer Guarantees Act 1993 shall not apply.
11.2 Under no circumstances will any warranty, expressed or implied, relating to the Products and/or any Project extend to or include, nor will HPG be liable (whether vicariously or otherwise) under the law of tort, contract or otherwise for:
(a) Any loss or damage not covered by the Manufacturer’s Warranty;
(b) Any loss or damage caused by non-adherence to the Operating Instructions and Guidelines;
(c) Any loss or damage caused by HPG altering the Location due to structural, electrical, safety or other concerns as to the Location for the Project;
(d) Any loss or damage caused by HPG failing to recognise the possible presence of asbestos in any roof cladding, soffit, eaves, gables or interior ceilings;
(e) Any loss or damage caused by a Force Majeure Event;
(f) Any loss or damage caused by the acts or omissions of any third party;
(g) Any loss or damage caused by a contractor and/or supplier carrying out any Related Work, whether or not HPG had arranged for such Related Work to be carried out;
(h) Any loss or damage caused by having repairs carried out to any Project by any person other than HPG;
(i) Any loss or damage occurring at the expiry of the Warranty Period;
(j) Any loss or damage caused by a Services Interruption;
(k) Any loss or damage arising from the termination of this Agreement; or
(l) Any loss of profits or savings or any indirect, special, incidental or consequential loss or damage, however caused, arising out of or in connection with the performance or non-performance of HPG, any Project, Product and/or this Agreement.
11.3 Notwithstanding any other provision of this Agreement and without prejudice to clause 11.2, if for any reason HPG becomes liable for loss or damage that would have otherwise been excluded, then its total liability to the Customer arising out of any claim for damages for any cause will be limited at HPG’s election to either the monetary amount of the value of that part of the Project giving rise to the claim, the actual damage or loss suffered by the Customer or the sum (if any) which is specified in the Special Conditions, whichever is lesser.
12.1 If a dispute arises, the parties may agree to settle the dispute by mediation before resorting to litigation or arbitration.
13. Force Majeure
13.1 Despite any other provision of this Agreement, HPG will not be liable for any failure or delay in complying with any obligation imposed on it under this Agreement, if the failure or delay arises from, or in connection with, a Force Majeure Event.
14. Miscellaneous provisions
14.1 This Agreement is governed by and construed according to the laws of New Zealand and is subject to the exclusive jurisdiction of the Court’s of New Zealand.
14.2 The illegality, invalidity or unenforceability of a provision of this Agreement under any law shall not affect the legality, validity or enforceability of that provision under another law or the legality, validity or enforceability of any other provision of this Agreement.
14.3 No party will assign its rights under this Agreement without the prior written consent of the other party.
14.4 This Agreement contains all terms of the arrangement between the parties and supersedes and extinguishes all prior agreements, discussions, representations and arrangements between the parties about the matters covered in this Agreement.
14.5 Failure or omission by a party at any time to enforce or require strict or timely compliance with any provision of this Agreement will not affect or impair that provision in any way or the rights of that party to benefit from the remedies it may have as to any breach of any provision.
14.6 This Agreement is deemed to be executed by a party if that party has executed any of the following formats:
(a) an original;
(b) a copy;
(c) a facsimile copy;
(d) a photocopy of any of the above; and provided that every party has executed any permitted format, the executed formats will together constitute a binding and enforceable instrument.
15. Definitions and interpretation: In this Agreement, unless the context requires otherwise:
“Customer” means the party or parties receiving the Products and/or Services from HPG; “Force Majeure Event” means an event or occurrence which is beyond HPG’s reasonable control; “HPG” means Heat Pump Guys Limited or agents, employees, or sub-contractors of Heat Pump Guys Limited, as appropriate”; “Location” means the site at which the Project is carried out for the Customer; “Manufacturer’s Warranty” means the warranty supplied from time to time by the manufacturer of the Products as at the date of the acceptance of the Quote and Purchase Order; “Operating Instructions and Guidelines” means the operating instructions and guidelines for the Products and/or Services supplied from time to time by the manufacturer of the Products as at the date of the acceptance of the Quote and Purchase Order; “Price” means the amount specified within each Quote and Purchase Order (subject to any Variation) representing the cost for the Project; “Products” means the heating, cooling, ventilating, heat recovery and/or air conditioning systems (including all materials, appliances, equipment, components, accessories, parts and/or spare parts thereof) which are provided to the Customer as part of a Project; “Project” means the supply of Products and/or Services to a Customer as per the Quote and Purchase Order; “Related Work”means any additional building, carpentry, electrical, painting, plastering, plumbing or other work or other trades that the Customer requires, which are not to be carried out by HPG; “Services” means those Product installation services provided by HPG to the Customer as part of a Project; “Services Delay Charge” means the services delay charge (if any) set out in the Quote and Purchase Order; “Services Interruption” means an interruption to the Project which is outside of the reasonable control of HPG; “Quote and Purchase Order” means the details outlining the provision of a Project and an estimate of costs but do not include any Related Work that may be required or recommended to the Customer.