Terms & Conditions of Trade
1. Definitions
1.1 - “Energi” means Energi Technical Solutions Limited, its successors and assigns or any person acting on behalf of and with the authority of Energi Technical Solutions Limited.
1.2 - “Client” means the person/s buying the Goods as specified in any invoice, document or order, and if there is more than one Client is a reference to each Client jointly and severally.
1.3 - “Goods” means all Goods or Services supplied by Energi to the Client at the Client’s request from 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 Energi and the Client in accordance with clause 5 below.
2. Acceptance
2.1 - The Client is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Client places an order for or accepts delivery of the Goods.
2.2 - Notwithstanding clause 2.1, once accepted by the Customer, Energi written quotation shall be deemed to interpret correctly the Customer’s instructions, whether written or verbal. Where verbal instructions only are received from the Customer due to a variation subject to clause 5.2 then Energi shall not be responsible for errors or omissions due to any oversight or misinterpretation of those instructions.
2.3 - These terms and conditions may only be amended with Energi consent in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the Client and Energi.
2.4 - The Client acknowledges and agrees that in the event that the Client requests Energi to make a Call-Out to carry out Services then Energi reserves the right to charge a minimum Call-Out Fee of three hundred and fifty dollars ($350.00) plus GST for the first two (2) hours.
2.5 - In the event that Energi is required to provide the Services urgently, that may require Energi staff to work outside normal business hours (including but not limited to working, through lunch breaks, weekends and/or Public Holidays) then Energi reserves the right to charge the Client additional labour costs (penalty rates will apply at time and a half normal rates), unless otherwise agreed between Energi and the Client.
2.6 - Where the designated jobsite is outside a ten (10) kilometre radius from Energi premises then the Services will be subject to a levy for travel based on mileage and/or a set fee at Energi discretion.
3. Authorised Representatives
3.1 - Unless otherwise limited as per clause 3.2 the Client agrees that should the Client introduce any third party to Energi as the Client’s duly authorised representative, that once introduced that person shall have the full authority of the Client to order any materials or Services on the Client’s behalf and/or to request any variation to the works on the Client’s behalf (such authority to continue until all requested works have been completed or the Client otherwise notifies Energi in writing that said person is no longer the Client’s duly authorised representative).
3.2 - In the event that the Client’s duly authorised representative as per clause 3.1 is to have only limited authority to act on the Client’s behalf then the Client must specifically and clearly advise Energi in writing of the parameters of the limited authority granted to their representative.
3.3 - The Client specifically acknowledges and accepts that they will be solely liable to Energi for all additional costs incurred by Energi (including Energi profit margin) in providing any works, materials, Services or variation/s requested by the Client’s duly authorised representative (subject always to the limitations imposed under clause 3.2 (if any)).
4. Change in Control
4.1 - The Client shall give Energi not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client and/or any other change in the Client’s details (including but not limited to, changes in the Client’s name, address, contact phone or fax number/s, or business practice). The Client shall be liable for any loss incurred by Energi as a result of the Client’s failure to comply with this clause.
5. Price and Payment
5.1 - At Energi sole discretion the Price shall be either:
(a) as indicated on any invoice provided by Energi to the Client; or
(b) Energi quoted price (subject to clause 5.2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.
5.2 - Energi 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 or unidentifiable difficulties (including, but not limited to, hard rock barriers below the surface, iron reinforcing rods in concrete, or hidden pipes and wiring in walls etc) which are only discovered on commencement of the Services; or
(d) in the event of increases to Energi in the cost of labour or Goods which are beyond Energi control.
5.3 - At Energi sole discretion a non-refundable deposit may be required.
5.4 - Time for payment for the Services being of the essence, the Price will be payable by the Client on the date/s determined by Energi, which may be:
(a) on completion of the Services; or
(b) by way of progress payments in accordance with Energi specified progress payment schedule. Such progress payment claims may include the reasonable value of authorised variations and the value of any Goods delivered to the worksite but not yet installed;
(c) for certain approved Client’s, due twenty (20) days following the end of the month in which a statement is posted to the Client’s address or address for notices;
(d) the date specified on any invoice or other form as being the date for payment; or
(e) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Client by Energi.
5.5 - Any discounts applicable to the Price shall become null and void if payment is not made by the due date stated on the invoice and/or statement.
5.6 - Payment may be made by cash, cheque, bank cheque, electronic/on-line banking, or by any other method as agreed to between the Client and Energi.
5.7 - Unless otherwise stated the Price does not include GST. In addition to the Price the Client must pay to Energi an amount equal to any GST Energi must pay for any supply by Energi under this or any other agreement for the sale of the Goods. The Client must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Client pays the Price. In addition the Client 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
6.1 - At Energi sole discretion, any costs of delivery may be charged additionally to the Client.
6.2 - The Client must take delivery of the Goods, either by receipt or collection, whenever they are tendered for delivery. In the event that the Client is unable to take delivery of the Goods as arranged then Energi shall be entitled to charge a reasonable fee for redelivery and/or storage.
6.3 - Subject to clause 6.4 it is Energi responsibility to ensure that the Services start as soon as it is reasonably possible.
6.4 - The Services commencement date will be put back and the completion date extended by whatever time is reasonable in the event that Energi claims an extension of time (by giving the Client written notice) where completion is delayed by an event beyond Energi control, including but not limited to any failure by the Client to:
(a) make a selection; or
(b) have the site ready for the Services; or
(c) notify Energi that the site is ready.
6.5 - Any time or date given by Energi to the Client is an estimate only. The Client must still accept delivery of the Goods even if late and Energi will not be liable for any loss or damage incurred by the Client as a result of the delivery being late.
6.6 - Risk of damage to or loss of the Goods passes to the Client on delivery and the Client must insure the Goods on or before delivery.
6.7 - If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Client, Energi is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by Energi is sufficient evidence of Energi rights to receive the insurance proceeds without the need for any person dealing with Energi to make further enquiries.
6.8 - If the Client requests Energi to leave Goods outside Energi premises for collection or to deliver the Goods to an unattended location then such Goods shall be left at the Client’s sole risk.
6.9 - In the event that the electrical wiring is required to be re-positioned at the request of any third party contracted by the Client then the Client agrees to notify Energi immediately upon any proposed changes. The Client agrees to indemnify Energi against any additional costs incurred with such a relocation of electrical wiring. All such variances shall be invoiced in accordance with clause 5.2.
6.10 - The Client warrants that any structures to which the Goods are to be affixed are able to withstand the installation of the Goods 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 Energi, its employees or contractors reasonably form the opinion that the Clients premises is not safe for the installation of Goods to proceed then Energi shall be entitled to delay installation of the Goods (in accordance with the provisions of clause 6.4 above) until Energi is satisfied that it is safe for the installation to proceed. Energi may at its sole discretion agree to bring the premises up to a standard suitable for installation to proceed but all such Services undertaken and any additional Goods supplied shall be treated as a variation and be charged for in addition to the Price.
7. Accuracy of Clients Plans & Measurements for Orders
7.1 - Energi shall be entitled to rely on the accuracy of any plans, specifications and other information provided by the Client. The Client acknowledges and agrees that in the event that any of this information provided by the Client is inaccurate, Energi 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 Client gives information relating to measurements and quantities of Goods required in completing the Services, it is the Client’s responsibility to verify the accuracy of the measurements and quantities, before the Client or Energi places an order based on these measurements and quantities. Energi accepts no responsibility for any loss, damages, or costs however resulting from the Client’s failure to comply with this clause.
8. Access
8.1 - The Client shall ensure that Energi has clear and free access to the work site at all times to enable them to deliver the Goods. Energi shall not be liable for any loss or damage to the site (including, without limitation, damage to pathways, driveways and concreted or paved or grassed areas) unless due to the negligence of Energi.
9. Underground Locations
9.1 - Prior to Energi commencing any work the Client must advise Energi of the precise location of all underground services on the site and clearly mark the same. The underground mains & services the Client 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 site.
9.2 - Whilst Energi will take all care to avoid damage to any underground services the Client agrees to indemnify Energi 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. Title
10.1 - Energi and the Client agree that ownership of the Goods shall not pass until:
(a) the Client has paid Energi all amounts owing to Energi; and
(b) the Client has met all of its other obligations to Energi.
10.2 - Receipt by Energi 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.
10.3 - It is further agreed that:
(a) until ownership of the Goods passes to the Client in accordance with clause 10.1 that the Client is only a bailee of the Goods and must return the Goods to Energi on request.
(b) the Client holds the benefit of the Client’s insurance of the Goods on trust for Energi and must pay to Energi the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed.
(c) the Client must not sell, dispose, or otherwise part with possession of the Goods other than in the ordinary course of business and for market value. If the Client sells, disposes or parts with possession of the Goods then the Client must hold the proceeds of any such act on trust for Energi and must pay or deliver the proceeds to Energi on demand.
(d) the Client should not convert or process the Goods or intermix them with other goods but if the Client does so then the Client holds the resulting product on trust for the benefit of Energi and must sell, dispose of or return the resulting product to Energi as it so directs.
(e) the Client irrevocably authorises Energi to enter any premises where Energi believes the Goods are kept and recover possession of the Goods.
(f) Energi may recover possession of any Goods in transit whether or not delivery has occurred.
(g) the Client 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 Energi.
(h) Energi may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Client.
11. Personal Property Securities Act 1999 (“PPSA”)
11.1 - Upon assenting to these terms and conditions in writing the Client acknowledges and agrees that:
(a) these terms and conditions constitute a security agreement for the purposes of the PPSA; and
(b) a security interest is taken in all Goods previously supplied by Energi to the Client (if any) and all Goods that will be supplied in the future by Energi to the Client.
11.2 - The Client undertakes to:
(a) sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which Energi may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register;
(b) indemnify, and upon demand reimburse, Energi 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;
(c) not register a financing change statement or a change demand without the prior written consent of Energi; and
(d) immediately advise Energi 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 - Energi and the Client agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms and conditions.
11.4 - The Client 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 Energi, the Client waives its right to receive a verification statement in accordance with section 148 of the PPSA.
11.6 - The Client shall unconditionally ratify any actions taken by Energi under clauses 11.1 to 11.5
12. Security and Charge
12.1 - In consideration of Energi agreeing to supply the Goods, the Client 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 Client either now or in the future, to secure the performance by the Client of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
12.2 - The Client indemnifies Energi from and against all Energi costs and disbursements including legal costs on a solicitor and own Client basis incurred in exercising Energi rights under this clause.
12.3 - The Client irrevocably appoints Energi and each director of Energi as the Client’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 Client’s behalf.
13. Client’s Disclaimer
13.1 - The Client hereby disclaims any right to rescind, or cancel any contract with Energi or to sue for damages or to claim restitution arising out of any inadvertent misrepresentation made to the Client by Energi and the Client acknowledges that the Goods are bought relying solely upon the Client’s skill and judgment.
14. Defects
14.1 - The Client shall inspect the Goods on delivery and shall within thirty (30) days of delivery (time being of the essence) notify Energi of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Client shall afford Energi an opportunity to inspect the Goods within a reasonable time following delivery if the Client believes the Goods are defective in any way. If the Client shall fail to comply with these provisions the Goods shall be presumed to be free from any defect or damage. For defective Goods, which Energi has agreed in writing that the Client is entitled to reject, Energi liability is limited to either (at Energi 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 - Energi shall not be liable for any claims (including, but not limited to any warranty claim or claim for defects), demands, losses, damages, costs and expenses caused or arising from the incorrect installation of those Goods, or where the Goods are used for any purpose other than the intended application.
14.4 - The Client acknowledges that Energi is only responsible for parts that are replaced by Energi and does not at any stage accept any liability in respect of previous services and/or goods supplied by any other third party that subsequently fail and found to be the source of the failure, the Client agrees to indemnify Energi against any loss or damage to the Goods, or caused by the Goods, or any part thereof howsoever arising.
15. Consumer Guarantees Act 1993
15.1 - If the Client is acquiring Goods for the purposes of a trade or business, the Client acknowledges that the provisions of the Consumer Guarantees Act 1993 do not apply to the supply of Goods by Energi to the Client.
16. Intellectual Property
16.1 - Where Energi has designed, drawn or developed Goods for the Client, then the copyright in any designs and drawings and documents shall remain the property of Energi.
16.2 - The Client warrants that all designs, specifications or instructions given to Energi will not cause Energi to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify Energi against any action taken by a third party against Energi in respect of any such infringement.
16.3 - The Client agrees that Energi may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings or Goods which Energi has created for the Client.
17. Default and Consequences of Default
17.1 - Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at Energi sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
17.2 - If the Client owes Energi any money the Client shall indemnify Energi from and against all costs and disbursements incurred by Energi in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own Client basis, Energi collection agency costs, and bank dishonour fees).
17.3 - Without prejudice to any other remedies Energi may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions Energi may suspend or terminate the supply of Goods to the Client. Energi will not be liable to the Client for any loss or damage the Client suffers because Energi has exercised its rights under this clause.
17.4 - Without prejudice to Energi other remedies at law Energi shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to Energi shall, whether or not due for payment, become immediately payable if:
(a) any money payable to Energi becomes overdue, or in Energi opinion the Client will be unable to make a payment when it falls due;
(b) the Client 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
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.
18. Compliance with Laws
18.1 - The Client and Energi 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.
18.2 - The Client shall obtain (at the expense of the Client) all licenses, approvals, applications and permits that may be required for the Services, and that are not included in the project documents provided by Energi
18.3 - 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 Energi, then Energi shall notify the Client 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 Client accepts and agrees that any costs associated with the rectification Services including any Goods and labour shall be to the Client’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”. Energi live Services procedures are designed to eliminate risk of injury to Energi employees, damage to the Client’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.
18.6 - The Client agrees that the site will comply with any occupational health and safety laws relating to building/construction sites and any other relevant safety standards or legislation.
19. Cancellation
19.1 - Energi 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 Client. On giving such notice Energi shall repay to the Client any money paid by the Client for the Goods. Energi shall not be liable for any loss or damage whatsoever arising from such cancellation.
19.2 - In the event that the Client cancels delivery of Goods the Client shall be liable for any and all loss incurred (whether direct or indirect) by Energi 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 Client’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 1993
20.1 - The Client authorises Energi or Energi agent to:(a) access, collect, retain and use any information about the Client;
(i) (including any overdue fines balance information held by the Ministry of Justice) for the purpose of assessing the Client’s creditworthiness; or
(ii) for the purpose of marketing products and services to the Client.
(b) disclose information about the Client, whether collected by Energi from the Client directly or obtained by Energi 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 Client.
20.2 - Where the Client is an individual the authorities under clause 20.1 are authorities or consents for the purposes of the Privacy Act 1993.
20.3 - The Client shall have the right to request Energi for a copy of the information about the Client retained by Energi and the right to request Energi to correct any incorrect information about the Client held by Energi.
21. Construction Contracts Act 2002
21.1 - The Client hereby expressly acknowledges that:
(a) Energi 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 Client, and:
(i) the payment is not paid in full by the due date for payment and no payment schedule has been given by the Client; or
(ii) a scheduled amount stated in a payment schedule issued by the Client in relation to the payment claim is not paid in full by the due date for its payment; or
(iii) the Client has not complied with an adjudicator’s notice that the Client must pay an amount to Energi by a particular date; and
(iv) Energi has given written notice to the Client of its intention to suspend the carrying out of construction work under the construction contract.
(b) if Energi 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 be suffered, by the Client or by any person claiming through the Client; 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 or an adjudicator’s determination has not been complied with.
(c) if Energi exercises the right to suspend work, the exercise of that right does not:
(i) affect any rights that would otherwise have been available to Energi under the Contractual Remedies Act 1979; or
(ii) enable the Client to exercise any rights that may otherwise have been available to the Client under that Act as a direct consequence of Energi suspending work under this provision.
22. General
22.1 - The failure by Energi to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect Energi 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.
22.2 - 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.
22.3 - Energi shall be under no liability whatsoever to the Client for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by Energi of these terms and conditions (alternatively Energi liability shall be limited to damages which under no circumstances shall exceed the Price of the Goods).
22.4 - The Client shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Client by Energi nor to withhold payment of any invoice because part of that invoice is in dispute.
22.5 - Energi may license or sub-contract all or any part of its rights and obligations without the Client’s consent.
22.6 - The Client agrees that Energi may amend these terms and conditions at any time. If Energi makes a change to these terms and conditions, then that change will take effect from the date on which Energi notifies the Client of such change. The Client will be taken to have accepted such changes if the Client makes a further request for Energi to provide Goods to the Client.
22.7 - 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.
22.8 - The Client 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.