Terms & Conditions

Definitions

1. Switched On Electrical” shall mean Switched On Electrical Services & Maintenance Ltd T/A Switched On Electrical its successors and assigns or any person acting on behalf of and with the authority of Switched On Electrical Services & Maintenance Ltd T/A Switched On Electrical.
2. “Buyer” shall mean the Buyer (or any person acting on behalf of and with the authority of the Buyer) as described on any quotation, work authorisation or other form as provided by Switched On Electrical to the Buyer.
3. “Guarantor” means that person (or persons), or entity, who agrees to be liable for the debts of the Buyer on a principal debtor basis.
4. “Goods” shall mean Goods supplied by Switched On Electrical to the Buyer (and where the context so permits shall include any supply of Services as hereinafter defined) and includes Goods described on any invoices, quotation, work authorisation or any other forms as provided by Switched On Electrical to the Buyer.
5. “Services” shall mean all services supplied by Switched On Electrical to the Buyer and includes any advice or recommendations (and where the context so permits shall include any supply of Goods as defined above).
6. “Price” shall mean the price payable for the Goods as agreed between Switched On Electrical and the Buyer in accordance with clause 3 of this contract.

Acceptance

1. Any instructions received by Switched On Electrical from the Buyer for the supply of Goods and/or the Buyer’s acceptance of Goods supplied by Switched On Electrical shall constitute acceptance of the terms and conditions contained herein.
2. Where more than one Buyer has entered into this agreement, the Buyers shall be jointly and severally liable for all payments of the Price.
3. Upon acceptance of these terms and conditions by the Buyer the terms and conditions are binding and can only be amended with the written consent of Switched On Electrical.
4. The Buyer shall give Switched On Electrical not less than fourteen (14) days prior written notice of any proposed change of ownership of the Buyer or any change in the Buyer’s name and/or any other change in the Buyer’s details (including but not limited to, changes in the Buyer’s address, facsimile number, or business practice). The Buyer shall be liable for any loss incurred by Switched On Electrical as a result of the Buyer’s failure to comply with this clause.

Price and Payment

1. At Switched On Electrical’s sole discretion the Price shall be either:
   • as indicated on invoices provided by Switched On Electrical to the Buyer in respect of Goods supplied; or
   • Switched On Electrical’s quoted Price (subject to clause ) which shall be binding upon Switched On Electrical provided that the Buyer shall accept Switched On Electrical’s quotation in writing within thirty (30) days.
2. Switched On Electrical reserves the right to change the Price in the event of a variation to Switched On Electrical’s quotation.
3. At Switched On Electrical’s sole discretion a deposit may be required.
4. Switched On Electrical at their sole discretion reserves the right to charge travel time at Switched On Electrical’s standard hourly rate.
5. Switched On Electrical may submit a detailed payment claim at intervals not less than one month for work performed up to the end of each month. The value of work so performed shall include the reasonable value of authorised variations, whether or not the value of such variations has been finally agreed between the parties, and the value of materials delivered to the site but not installed. Progress payment shall be made within twenty (20) working days of each monthly payment claim.
6. At Switched On Electrical’s sole discretion payment for approved Buyers shall be made by instalments in accordance with Switched On Electrical’s payment schedule.
7. Time for payment for the Goods shall be of the essence and will be stated on the invoice or any other forms. If no time is stated then payment shall be due twenty (20) days following the end of the month in which a statement is posted to the Buyer’s address or address for notices.
8. Payment will be made by cash, or by cheque, or by bank cheque, or by any other method as agreed to between the Buyer and Switched On Electrical.
9. GST and other taxes and duties that may be applicable shall be added to the Price except when they are expressly included in the Price.

Delivery of Goods

1. At Switched On Electrical’s sole discretion delivery of the Goods shall take place when the Buyer takes possession of the Goods at the Buyer’s nominated address (in the event that the Goods are delivered by Switched On Electrical or Switched On Electrical’s nominated carrier).
2. At Switched On Electrical’s sole discretion the costs of delivery are:
   • in addition to the Price; or
   • for the Buyer’s account.
3. The Buyer shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery. In the event that the Buyer is unable to take delivery of the Goods as arranged then Switched On Electrical shall be entitled to charge a reasonable fee for redelivery.
4. Delivery of the Goods to a third party nominated by the Buyer is deemed to be delivery to the Buyer for the purposes of this agreement.
5. Switched On Electrical may deliver the Goods by separate instalments. Each separate instalment shall be invoiced and paid for in accordance with the provisions in these terms and conditions.
6. The failure of Switched On Electrical to deliver shall not entitle either party to treat this contract as repudiated.
7. Switched On Electrical shall not be liable for any loss or damage whatever due to failure by Switched On Electrical to deliver the Goods (or any of them) promptly or at all.

Risk

1. If Switched On Electrical retains ownership of the Goods nonetheless, all risk for the Goods passes to the Buyer on delivery.
2. If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Buyer, Switched On Electrical is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by Switched On Electrical is sufficient evidence of Switched On Electrical’s rights to receive the insurance proceeds without the need for any person dealing with Switched On Electrical to make further enquiries.

Title

1. Switched On Electrical and Buyer agree that ownership of the Goods shall not pass until:
   • the Buyer has paid Switched On Electrical all amounts owing for the particular Goods; and
   • the Buyer has met all other obligations due by the Buyer to Switched On Electrical in respect of all contracts between Switched On Electrical and the Buyer.
2. Receipt by Switched On Electrical 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 and until then Switched On Electrical’s ownership or rights in respect of the Goods shall continue.
3. It is further agreed that:
   • where practicable the Goods shall be kept separate and identifiable until Switched On Electrical shall have received payment and all other obligations of the Buyer are met; and
   • until such time as ownership of the Goods shall pass from Switched On Electrical to the Buyer Switched On Electrical may give notice in writing to the Buyer to return the Goods or any of them to Switched On Electrical. Upon such notice being given the rights of the Buyer to obtain ownership or any other interest in the Goods shall cease; and
   • the Buyer is only a bailee of the Goods and until such time as Switched On Electrical has received payment in full for the Goods then the Buyer shall hold any proceeds from the sale or disposal of the Goods on trust for Switched On Electrical; and
   • until such time that ownership in the Goods passes to the Buyer, if the Goods are converted into other products, the parties agree that Switched On Electrical will be the owner of the end products; and
   • if the Buyer fails to return the Goods to Switched On Electrical then Switched On Electrical or Switched On Electrical’s agent may enter upon and into land and premises owned, occupied or used by the Buyer, or any premises where the Goods are situated as the invitee of the Buyer and take possession of the Goods, and Switched On Electrical will not be liable for any reasonable loss or damage suffered as a result of any action by Switched On Electrical under this clause.

Personal Property Securities Act 1999 (“PPSA”)

1. Upon assenting to these terms and conditions in writing the Buyer acknowledges and agrees that:
   • These terms and conditions constitute a security agreement for the purposes of the PPSA; and
   • A security interest is taken in all Goods previously supplied by Switched On Electrical to the Buyer (if any) and all Goods that will be supplied in the future by Switched On Electrical to the Buyer.
2. The Buyer undertakes to:
   • Sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which Switched On Electrical may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register;
   • Indemnify, and upon demand reimburse, Switched On Electrical 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;
   • Not register a financing change statement or a change demand without the prior written consent of Switched On Electrical; and
   • Immediately advise Switched On Electrical 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.
3. Switched On Electrical and the Buyer agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms and conditions.
4. The Buyer waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA.
5. Unless otherwise agreed to in writing by Switched On Electrical, the Buyer waives its right to receive a verification statement in accordance with section 148 of the PPSA.
6. The Buyer shall unconditionally ratify any actions taken by Switched On Electrical under clauses to .

Defects

1. The Buyer shall inspect the Goods on delivery and shall within seven (7) days of delivery (time being of the essence) notify Switched On Electrical of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Buyer shall afford Switched On Electrical an opportunity to inspect the Goods within a reasonable time following delivery if the Buyer believes the Goods are defective in any way. If the Buyer shall fail to comply with these provisions the Goods shall be presumed to be free from any defect or damage. For defective Goods, which Switched On Electrical has agreed in writing that the Buyer is entitled to reject, Switched On Electrical’s liability is limited to either (at Switched On Electrical’s discretion) replacing the Goods or repairing the Goods.

Returns

1. Returns will only be accepted provided that:
   • The Buyer has complied with the provisions of clause ; and
   • Switched On Electrical has agreed in writing to accept the return of the Goods; and
   • The Goods are returned at the Buyer’s cost within seven (7) days of the delivery date; and
   • Switched On Electrical will not be liable for Goods which have not been stored or used in a proper manner; and
   • The Goods are returned in the condition in which they were delivered and with all packaging material, brochures and instruction material in as new condition as is reasonably possible in the circumstances.
2. Switched On Electrical may, (in its discretion), accept the return of Goods for credit but this may incur a handling fee of twenty-five percent (25%) of the value of the returned Goods plus any freight.

Warranty

1. For Goods not manufactured by Switched On Electrical, the warranty shall be the current warranty provided by the manufacturer of the Goods. Switched On Electrical shall not be bound by nor be responsible for any term, condition, representation or warranty other than that which is given by the manufacturer of the Goods.

Consumer Guarantees Act 1993

1. If the Buyer is acquiring Goods for the purposes of a trade or business, the Buyer acknowledges the provisions of the Consumer Guarantees Act 1993 do not apply to the supply of Goods by Switched on Electrical to the Buyer.

Intellectual Property

1. Where Switched On Electrical has designed, drawn or written Goods for the Buyer, then the copyright in those designs and drawings and documents shall remain vested in Switched On Electrical, and shall only be used by the Buyer at Switched On Electrical’s discretion.
2. The Buyer warrants that all designs or instructions to Switched On Electrical will not cause Switched On Electrical to infringe any patent, registered design or trademark in the execution of the Buyer’s order and the Buyer agrees to indemnify Switched On Electrical against any action taken by a third party against Switched On Electrical in respect of any such infringement.

Default & Consequences of Default

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% per calendar month and such interest shall compound monthly at such a rate after as well as before any judgment.
2. If the Buyer defaults in payment of any invoice when due, the Buyer shall indemnify Switched On Electrical from and against all costs and disbursements incurred by Switched On Electrical in pursuing the debt including legal costs on a solicitor and own client basis and Switched On Electrical’s collection agency costs.
3. Without prejudice to any other remedies Switched On Electrical may have, if at any time the Buyer is in breach of any obligation (including those relating to payment), Switched On Electrical may suspend or terminate the supply of Goods to the Buyer and any of its other obligations under the terms and conditions. Switched On Electrical will not be liable to the Buyer for any loss or damage the Buyer suffers because Switched On Electrical has exercised its rights under this clause.
4. If any account remains overdue after thirty (30) days then an amount of the greater of $20.00 or 10.00% of the amount overdue (up to a maximum of $200) shall be levied for administration fees which sum shall become immediately due and payable.
5. Without prejudice to Switched On Electrical’s other remedies at law Switched On Electrical shall be entitled to cancel all or any part of any order of the Buyer which remains unfulfilled and all amounts owing to Switched On Electrical shall, whether or not due for payment, become immediately payable in the event that:
   • Any money payable to Switched On Electrical becomes overdue, or in Switched On Electrical’s opinion the Buyer will be unable to meet its payments as they fall due; or
   • The Buyer 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
   • A receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Buyer or any asset of the Buyer.

Security and Charge

1. Despite anything to the contrary contained herein or any other rights which Switched On Electrical may have howsoever:
   • where the Buyer and/or the Guarantor (if any) is the owner of land, realty or any other asset capable of being charged, both the Buyer 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 Switched On Electrical or Switched On Electrical’s nominee to secure all amounts and other monetary obligations payable under these terms and conditions. The Buyer and/or the Guarantor acknowledge and agree that Switched On Electrical (or Switched On Electrical’s nominee) shall be entitled to lodge where appropriate a caveat, which caveat shall be withdrawn once all payments and other monetary obligations payable hereunder have been met.
   • should Switched On Electrical elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Buyer and/or Guarantor shall indemnify Switched On Electrical from and against all Switched On Electrical’s costs and disbursements including legal costs on a solicitor and own client basis.
   • the Buyer and/or the Guarantor (if any) agree to irrevocably nominate constitute and appoint Switched On Electrical or Switched On Electrical’s nominee as the Buyer’s and/or Guarantor’s true and lawful attorney to perform all necessary acts to give effect to the provisions of this clause 13.

Cancellation

1. Switched On Electrical 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 Buyer. On giving such notice Switched On Electrical shall repay to the Buyer any sums paid in respect of the Price. Switched On Electrical shall not be liable for any loss or damage whatever arising from such cancellation.
2. In the event that the Buyer cancels delivery of the Goods the Buyer shall be liable for any loss incurred by Switched On Electrical (including, but not limited to, any loss of profits) up to the time of cancellation.

Privacy Act 1993

1. The Buyer and the Guarantor/s (if separate to the Buyer) authorises Switched On Electrical to:
   • collect, retain and use any information about the Buyer, for the purpose of assessing the Buyer’s creditworthiness or marketing products and services to the Buyer; and
   • disclose information about the Buyer, whether collected by Switched On Electrical from the Buyer directly or obtained by Switched On Electrical 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 Buyer.
2. Where the Buyer and/or Guarantors are an individual the authorities under clause 13 are authorities or consents for the purposes of the Privacy Act 1993.
3. The Buyer and/or Guarantors shall have the right to request Switched On Electrical for a copy of the information about the Buyer and/or Guarantors retained by Switched On Electrical and the right to request Switched On Electrical to correct any incorrect information about the Buyer and/or Guarantors held by Switched On Electrical.

Unpaid Switched On Electrical's Rights

1. Where the Buyer has left any item with Switched On Electrical for repair, modification, exchange or for Switched On Electrical to perform any other Service in relation to the item and Switched On Electrical has not received or been tendered the whole of the Price, or the payment has been dishonoured, Switched On Electrical shall have:
   • A lien on the item;
   • The right to retain the item for the Price while Switched On Electrical is in possession of the item;
   • A right to sell the item.
2. The lien of Switched On Electrical shall continue despite the commencement of proceedings, or judgement for the Price having been obtained.

Construction Contracts Act 2002

1. The Buyer hereby expressly acknowledges that:
   • Switched On Electrical 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 Buyer, and:
     1. The payment is not paid in full by the due date for payment and no payment schedule has been given by the Buyer; or
     2. A scheduled amount stated in a payment schedule issued by the Buyer in relation to the payment claim is not paid in full by the due date for its payment; or
     3. The Buyer has not complied with an adjudicator’s notice that the Buyer must pay an amount to Switched On Electrical by a particular date; and
     4. Switched On Electrical has given written notice to the Buyer of its intention to suspend the carrying out of construction work under the construction contract.
   • If Switched On Electrical suspends work, it:
     1. Iis not in breach of contract; and
     2. Is not liable for any loss or damage whatsoever suffered, or alleged to be suffered, by the Buyer or by any person claiming through the Buyer; and
     3. Is entitled to an extension of time to complete the contract; and
     4. 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.
   • If Switched On Electrical exercises the right to suspend work, the exercise of that right does not:
     1. Affect any rights that would otherwise have been available to Switched On Electrical under the Contractual Remedies Act 1979; or
     2. Enable the Buyer to exercise any rights that may otherwise have been available to the Buyer under that Act as a direct consequence of Switched On Electrical suspending work under this provision.

General

1. 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.
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 Hamilton.
3. Switched On Electrical shall be under no liability whatever to the Buyer for any indirect loss and/or expense (including loss of profit) suffered by the Buyer arising out of a breach by Switched On Electrical of these terms and conditions.
4. In the event of any breach of this contract by Switched On Electrical the remedies of the Buyer shall be limited to damages which under no circumstances shall exceed the Price of the Goods.
5. The Buyer shall not be entitled to set off against or deduct from the Price any sums owed or claimed to be owed to the Buyer by Switched On Electrical.
6. Switched On Electrical may license or sub-contract all or any part of its rights and obligations without the Buyer’s consent.
7. Switched On Electrical reserves the right to review these terms and conditions at any time. If, following any such review, there is to be any change to these terms and conditions, then that change will take effect from the date on which Switched On Electrical notifies the Buyer of such change.
8. The provisions of the Contractual Remedies Act 1979 shall apply to this contract as if section 15(d) were omitted from the Contractual Remedies Act 1979.
9. Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, drought, storm or other event beyond the reasonable control of either party.
10. The failure by Switched On Electrical to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect Switched On Electrical’s right to subsequently enforce that provision.