1.1 “Company” shall mean Prime Environmental Limited and its successors and assigns.
1.2 “Generator” shall mean the Generator or any person acting on behalf of and with the authority of the Generator.
1.3 “Guarantor” means that person (or persons), or entity that agrees herein to be liable for the debts of the Generator on a principal debtor basis.
1.4 “Goods” shall have the same meaning as in section 2 of the Sale of Goods Act 1908 and are goods supplied by the Generator to the Company (and where the context so permits shall include any supply of Services as hereinafter defined).
1.5 “Services” shall mean all services supplied by the Company to the Generator and includes any advice or recommendations (and where the context so permits shall include any supply of Goods as defined above).
1.6 “Price” shall mean the cost of the Goods as agreed between the Company and the Generator subject to clause 4 of this contract.
2.1 Any instructions received by the Company from the Generator for the supply of Goods and/or the Generator’s acceptance of Goods supplied by the Company shall constitute acceptance of the terms and conditions contained herein.
2.2 Where more than one Generator has entered into this agreement, the Generators shall be jointly and severally liable for all payments of the Price.
2.3 Upon acceptance of these terms and conditions by the Generator the terms and conditions are irrevocable and can only be rescinded in accordance with these terms and conditions or with the written consent of the manager of the Company.
2.4 None of the Company’s agents or representatives are authorised to make any representations, statements, conditions or agreements not expressed by the manager of the Company in writing nor is the Company bound by any such unauthorised statements.
3. Goods / Services
3.1 The Goods and/or Services are as described on the invoices, quotation, work authorisation or any other work commencement forms as provided by the Company to the Generator.
4. Price and Payment
4.1 The Price shall be as indicated on invoices provided by the Company to the Generator in respect of Goods received, or Services rendered.
4.2 Time for payment for the Goods or Services shall be of the essence and will be stated on the invoice, quotation or any other order forms. If no time is stated then payment shall be on delivery of the Goods.
4.3 At the Company’s sole discretion, payment for approved Generator’s shall be due on twenty (20) days following the end of the month in which a statement is posted to the Generator’s address or address for notices.
4.4 Payment will be made by cash on delivery, or by cheque, or or by bank cheque, or by direct credit, or by any other method as agreed to between the Generator and the Company.
4.5 The Price shall be increased by the amount of any GST and other taxes and duties which may be applicable.
5.1 The Generator retains title to the Goods until full payment as indicated on invoices provided by the Company to the Generator for the Goods has been receipted by the Company.
5.2 The Company assumes title of the Goods on receipt of full payment, but this is not extended to any undisclosed materials contained in the Goods. Should the Goods contain undisclosed materials of a harmful nature to persons or the environment, the ownership of the goods is first with the Generator and the Generator will cover all remedial costs in the return of the Goods to the Generator.
6. Default & Consequences of Default
6.1 Interest on overdue invoices shall accrue from the date when payment becomes due daily until the date of payment at a rate of 2.5% compounding per calendar month and shall accrue at such a rate after as well as before any judgement.
6.2 If the Generator defaults in payment of any invoice when due, the Generator shall indemnify the Company from and against all of the Company’s costs and disbursements including on a solicitor and own Generator basis and in addition all of the Company’s nominees costs of collection.
6.3 Without prejudice to any other remedies the Company may have, if at any time the Generator is in breach of any obligation (including those relating to payment), the Company may suspend or terminate the supply of Goods or Services to the Generator and any of its other obligations under the terms and conditions. The Company will not be liable to the Generator for any loss or damage the Generator suffers because the Company exercised its rights under this clause.
6.4 If any account remains unpaid at the end of the second month after supply of the Goods or Services the following shall apply: An immediate amount of the greater of $20.00 or 10.00% of the amount overdue shall be levied for administration fees which sum shall become immediately due and payable in addition to the interest payable under clause 9.1 hereof.
6.5 In the event that:
(a) any money payable to the Company becomes overdue, or in the Company’s opinion the Generator will be unable to meet its payments as they fall due, or;
(b) the Generator 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 Generator or any asset of the Generator, then without prejudice to the Company’s other remedies at law:
(i) the Company shall be entitled to cancel all or any part of any order of the Generator which remains unperformed in addition to and without prejudice to any other remedies; and
(ii) all amounts owing to the Company shall, whether or not due for payment, immediately become due and payable.
7. Security & Charge
7.1 Despite anything to the contrary contained herein or any other rights which the Company may have howsoever:
(a) Where the Generator and/or the Guarantor (if any) is the owner of land, realty or any other asset capable of being charged, both the Generator and/or the Guarantor agree to mortgage and/or charge all of their joint and/or several interest in the said land, realty or any other asset to the Company or the Company’s nominee to secure all amounts and other monetary obligations payable under the terms and conditions. The Generator and/or the Guarantor acknowledge and agree that the Company (or the Company’s nominee) shall be entitled to lodge where appropriate a caveat, which caveat shall be released once all payments and other monetary obligations payable hereunder have been met.
(b) Should the Company elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Generator and/or Guarantor shall indemnify the Company from and against all the Company’s costs and disbursements including legal costs on a solicitor and own Generator basis.
(c) To give effect to the provisions of clause [11, 12.1(a) to (b)] inclusive hereof the Generator and/or the Guarantor (if any) do hereby irrevocably nominate constitute and appoint the Company or the Company’s nominee as the Generator’s and/or Guarantor’s true and lawful attorney to execute mortgages and charges (whether registerable or not) including such other terms and conditions as the Company and/or the Company’s nominee shall think fit in his/her/its/their absolute discretion against the joint and/or several interest of the Generator and/or the Guarantor in any land, realty or asset in favour of the Company and in the Generator’s and/or Guarantor’s name as may be necessary to secure the said Generator’s and/or Guarantor’s obligations and indebtedness to the Company and further to do and perform all necessary and other acts including instituting any necessary legal proceedings, and further to execute all or any documents in the Company’s absolute discretion which may be necessary or advantageous to give effect to the provisions of this clause.
8.1 The Company may cancel these terms and conditions or cancel delivery of Goods and Services at any time before the Goods are delivered by giving written notice. On giving such notice the Company shall promptly repay to the Generator any sums paid in respect of the Price for those Goods. The Company shall not be liable for any loss or damage whatsoever arising from such cancellation.
8.2 At the Company’s sole discretion the Generator may cancel delivery of Goods and/or Services. In the event that the Generator cancels delivery of Goods and/or Services the Generator shall be liable for any costs incurred by the Company up to the time of cancellation.
9. Privacy Act 1993
9.1 The Generator and the Guarantor/s (if separate to the Generator) authorises the Company to:
(a) collect, retain and use any information about the Generator, for the purpose of assessing the Generator’s creditworthiness or marketing products and services; and
(b) to disclose information about the Generator, whether collected by the Company from the Generator directly or obtained by the Company 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 Generator.
9.2 Where the Generator is a natural person the authorities under (clause 15.1) are authorities or consents for the purposes of the Privacy Act 1993.
9.3 The Generator shall have the right to request the Company for a copy of the information about the Generator retained by the Company and the right to request the Company to correct any incorrect information about the Generator held by the Company.
10. Generator’s Disclaimer
10.1 The Generator hereby disclaims any right to rescind, or cancel the contract or to sue for damages or to claim restitution arising out of any misrepresentation made to him by any servant or agent of the Company and the Generator acknowledges that he buys the Goods relying solely upon his own skill and judgement.
11. Contractual Remedies Act
11.1 The provisions of the Contractual Remedies Act 1979 shall apply to this contract as if section 15(d) of the Contractual Remedies Act which states that nothing in the Contractual Remedies Act shall affect the Sale of Goods Act 1908, were omitted from the Contractual Remedies Act 1979.
12. Unpaid Company’s Rights
12.1 Where the Generator has left any item with Company for repair, modification, exchange or for the Company to perform any other Service in relation to the item and Company has not received or been tendered the whole of the Price, or the payment has been dishonoured, the Company shall have:
(a) a lien on the item;
(b) the right to retain the item for the Price while the Company is in possession of them;
(c) a right of resale,
(d) the foregoing right of disposal, provided that the lien of the Company shall continue despite the commencement of proceedings or judgement for the Price having been obtained.
13.1 If any provision of these terms and conditions shall be invalid, void or illegal or unenforceable the validity existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
13.2 All Goods and Services supplied by the Company are supplied subject to the laws of New Zealand and the Company takes no responsibility for changes in the law that affect the Goods or Services supplied.
13.3 The Company shall be under no liability whatsoever to the Generator for any indirect loss and/or expense (including loss of profit) suffered by the Generator arising out of a breach by the Company of these terms and conditions.
13.4 In the event of any breach of this contract by the Company the remedies of the Generator shall be limited to damages. Under no circumstances shall the liability of the Company exceed the Price of the Goods.
13.5 Neither party shall be liable for any default due to any act of God, terrorism, war, strike, lock out, industrial action, flood, storm or other event beyond the reasonable control of either party.
13.6 The Generator shall not set off against the Price amounts due from the Company.
13.7 The Company may license or sub-contract all or any part of its rights and obligations without the Generator’s consent.
13.8 The Company reserves the right to review these terms and conditions at any time and from time to time. If, following any such review, there is to be any change in such terms and conditions, that change will take effect from the date on which the Company notifies the Generator of such change.