Terms of Trade
Freenergy Ltd T/A Freenergy Solar Hot Water
1. Definitions
1.1 “Seller” shall mean Freenergy Ltd, or any agents, employees, successors or assigns thereof.
1.2 “Owner” shall mean the entity or person named on any form provided by the Owner to the Seller (or any person acting on behalf of and with the authority of such entity or person) who buys or agrees to buy Works (which includes Materials to complete the Works). If the Owner includes two or more persons, those persons’ liability is joint and several.
1.3 “Works” shall mean all Works (including the supply of Materials) undertaken by the Seller and described in the quotation and includes any advice or recommendations.
1.4 “Materials” shall mean goods (as defined by the Sale of Goods Act 1908) required to undertake the Works.
1.5 “Price” shall mean the cost of the Works as determined by the Seller and any other amounts owing to the Seller by the Buyer.
2. General
2.1 This contract shall be subject to the laws and statutes of New Zealand and subject to the jurisdiction of the court geographically closest to the physical address of the Seller.
2.2 The Seller may sub-contract any part of this contract. No-subcontractor has any authority to agree to any variation of this contract on behalf of the Seller.
2.3 Any instructions received by the Seller from the Owner for the supply of Works shall constitute acceptance of this contract.
2.4 The Seller may submit a detailed payment claim at intervals not less than one (1) week for work performed up to the end of each week.
2.5 To end the contract, the Owner must give the Seller a signed notice giving the details of why the contract is being ended. The Seller is entitled to a reasonable Price for any Works completed, and Materials ordered but not installed, as at the date the contract is ended.
3. Quotation and Payment
3.1 Where a quotation is given for the Price then;
a) the quotation shall only be binding upon the Seller for thirty (30) days from the date of issue; and
b) where Works are required in addition to the quotation then the Buyer agrees to pay the additional Price of such Works; and
c) the Seller reserves the right to amend the quotation in the event of circumstances beyond the Seller’s control (including, but not limited to, any variation as a result of additional Works required due to hidden or unidentifiable difficulties beyond the reasonable control of the Seller).
3.2 In the event that smoke alarms are required to be installed to meet consent requirements these are deemed to be in addition to any quotation.
3.3 Payment shall be due the 20th day of the month following the invoice date for commercial owners, and seven (7) days following the invoice date for residential owners.
4. Compliance with Laws
4.1 The Buyer and the Seller shall comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities that may be applicable to the Works.
4.2 Unless otherwise agreed the Buyer shall obtain (at the expense of the Buyer) all licenses and approvals that may be required for the Works.
4.3 The Buyer agrees that the site will comply with any occupational health and safety laws relating to building or construction sites and any other relevant safety standards or legislation.
4.4 Where Works are supplied for the purposes of a business, the Buyer agrees that the Consumer Guarantees Act shall not apply.
4.5 Nothing in this contract is intended to have the effect of contracting out of the Consumer Guarantees Act and the Fair Trading Act except to the extent permitted by statute.
5. Default
5.1 Without prejudice to any other rights or remedies that the Seller may have against the Owner, the Owner agrees that in the event of default in payment by the Owner then the Owner agrees to pay on demand;
a) all costs (including, but not limited to, collection agency fees, commission, legal fees and any other costs on a solicitor and own client basis) incurred by the Seller in recovering any amounts payable by the Owner to the Seller; and
b) interest on the amount outstanding at the end of each month in which the Owners account is in arrears at the rate of two percent (2%) per month (compounding) with such a rate after as well as before any judgement; and
c) a monthly administration fee of twenty five dollars ($25) by way of damages payable on the last day of each month in which the Owners account is in default.
6. Privacy Act
6.1 The Owner acknowledges that personal information collected or held by the Seller is provided and may be held, used and disclosed for the purpose enabling the Seller to notify any credit agency of default on any obligation of the Owner to the Seller and enabling the Seller to provide such personal information to any credit agency so such credit agency can maintain correct accounting records.
7. Completion
7.1 The Works shall be deemed to be completed when (subject to clause 7.3) either (in the Seller’s sole opinion) the Works have been completed in accordance with the plans and specifications, or the Owner is given notice of practical completion, or a certificate of completion has been produced.
7.2 The time agreed for delivery (if any) shall not be an essential term of this agreement unless the parties agree otherwise in writing to make time of the essence.
7.3 Any claim by the Owner as to incorrect performance or breach of this contract must be made to the Seller in writing within seven (7) days of completion (time being of the essence) of the Works otherwise the Seller shall be entitled to presume that the Works have been delivered in good order and without defect or shortage in quantity.
8. Warranty and Limitation of Liabilities
8.1 Frost: Although open loop solar systems incorporate a frost protection system, this will not operate if there is no power to your controller or circulation pump. Damage as a result of frost due to power loss is not covered by the standard Freenergy warranty.
8.2 No warranty is expressed nor implied on water cylinders that are being retrofitted or second-hand.
8.3 The Seller shall not be liable for gradual damage to roofs where solar panels are fixed by adhesives.
8.4 If the Seller is ever liable to the Owner, or any other person, and the Seller cannot rely on the exclusions or representations, warranties, or liabilities set out in these terms and conditions then the Seller’s liability is in all cases limited to the Price.
9. Construction Contracts Act 2002
9.1 In the event that the Owner is a residential occupier as defined by the Construction Contracts Act 2002 the Owner hereby expressly acknowledges that:
a) The Seller 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 Owner, and the payment is not paid in full by the due date for payment and no payment schedule has been given by the Owner, or a scheduled amount stated in a payment schedule issued by the Owner in relation to the payment claim is not paid in full by the due date for its payment, or the Owner has not complied with an adjudicator’s notice that the Owner must pay an amount to the Seller by a particular date, and the Seller has given written notice to the Owner of its intention to suspend the carrying out of construction work under the construction contract.
b) If the Seller suspends work, it is not in breach of contract; and is not liable for any loss or damage whatsoever suffered, or alleged to be suffered, by the Owner or by any person claiming through the Owner; and is entitled to an extension of time to complete the contract; and 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 the Seller exercises the right to suspend work, the exercise of that right does not affect any rights that would otherwise have been available to the Seller under the Contractual Remedies Act 1979; or enable the Owner to exercise any rights that may otherwise have been available to the Owner under that Act as a direct consequence of the Seller suspending work under this provision.
10. Title
10.1 Property and ownership in the Materials will not pass to the Buyer, but will remain with the Seller, until payment in full of the Price.
10.2 Until property in the Materials passes to the Buyer:
a) the Buyer acknowledges that if it mixes the Materials with other products or items such that the Materials are no longer separately identifiable then the Buyer and Seller shall be owners in common of the new product or item; and
b) if the Buyer is in default of payment then the Buyer shall deliver the Materials to the Seller upon demand and in the event the Buyer does not comply with such a demand then the Seller shall be entitled to enter upon the Buyer’s premises at any time and do all things necessary in order to take possession of the Materials. The Buyer shall be liable for all costs of whatsoever nature associated with the exercise of the Seller’s rights under this clause.
11. Caveat and Mortgage
11.1 The Owner agrees that the Seller shall have the right to complete and register a mortgage over any property owned by the Owner to secure any amount outstanding and that the Seller shall have the right at its discretion to place a caveat on any such property for the purpose of this clause and the Owner hereby irrevocably appoints the Seller as the attorney of the Owner for the purpose of the Seller exercising its rights under this clause whilst any amount remains in default.
11.2 Should the Seller elect to proceed in any manner in accordance with clause 10.1, the Owner and/or guarantor shall indemnify the Seller from and against all the Seller’s costs and disbursements including legal costs on a solicitor and own client basis.
12. Dispute
12.1 For disputes arising between the parties under this contract where the Price is twenty thousand dollars ($20,000) or less the Buyer expressly acknowledges and agrees that this contract may be taken as agreement that both parties consent for the dispute to be referred to the Disputes Tribunal for resolution.
