Terms and Conditions of Trade –
Full Power Electrical Services Limited
1.1 “Full Power” means Full Power Electrical Services Limited its successors and assigns or any person acting on behalf of and with the authority of Full Power Electrical Services Limited.
1.2 “Customer” means the Customer (or any person acting on behalf of and with the authority of the Customer) as described on any quote, estimate, work authorisation, tax invoice or other form as provided by Full Power to the Customer.
1.3 “Goods” means all Goods or Services supplied by Full Power to the Customer at the Customer’s request from time to time (and where the context so permits the terms ‘Goods’ or ‘Services’ shall be interchangeable for the other), and includes Goods or Services described on any quote, estimate, work authorisation, tax invoice or any other forms as provided by Full Power to the Customer.
1.5 “Price” means the price payable for the Goods and/or Services as agreed between Full Power and the Customer in accordance with clause 3 of these terms and conditions.
2.1 Any instructions received by Full Power from the Customer for the supply of Goods and/or the Customer’s acceptance of Goods supplied by Full Power shall constitute acceptance of the terms and conditions contained herein.
2.2 Upon acceptance of these terms and conditions by the Customer the terms and conditions are binding and can only be amended with the written consent of Full Power.
2.3 These terms and conditions shall prevail to the extent of any inconsistency with any other document or agreement between the Customer and Full Power.
3. Price and Payment
3.1 The Customer may choose between three pricing options:
(a) A fixed price quote in writing. Full Power’s quoted price shall be binding upon Full Power provided that the Customer shall accept Full Power’s quotation in writing within thirty (30) days.
(b) An estimate of costs, verbally or in writing.
(c) Charge up on the job, as indicated by a verbal or written authorisation to commence work and/or invoices provided by Full Power to the Customer.
3.2 If the Customer agrees to a fixed price quote in writing, Full Power reserves the right to change the price in the event of a variation to Full Power’s quote. Any variation from the plan of scheduled works (including, but not limited to, any variation as a result of additional works required due to hidden or unidentifiable difficulties or as a result of increases to Full Power in the cost of materials and labour) will be charged for on the basis of Full Power’s quote and will be shown as variations on the invoice. Payment for all variations must be made in full at their time of completion.
3.3 If the Customer agrees to an estimate of costs, verbally or in writing, the Customer acknowledges that it is an estimate only of the time and materials required to deliver the Goods based on the information provided by the Customer, and that Full Pwer’s final invoice may be less than, or exceed, the estimate provided.
3.4 If the Customer agrees to charge up on the job, then Full Power will charge for labour and materials used to deliver the Goods or complete the Services at current hourly and material rates.
3.5 Unless otherwise agreed:
(a) all pricing will include a vehicle/service charge to cover costs including but not limited to fuel, road user charges, vehicle warranty and maintenance costs; and
(b) labour costs will include travel time, time taken to procure any Goods required, and administration time; and
(c) a minimum of one hour labour will be charged for any Service provided. Thereafter we will charge at our hourly rate on a pro rata basis in fifteen minute increments.
3.6 At Full Power’s sole discretion a non-refundable deposit may be required.
3.7 Full Power may submit detailed progress payment claims in accordance with Full Power’s specified payment schedule. Such payment claims may include the reasonable value of authorised variations and the value of any materials delivered to the site but not yet installed.
3.8 At Full Power’s sole discretion:
(a) payment shall be due on delivery of the Goods; or
(b) payment for approved Customers shall be due twenty (20) days following the end of the month in which a statement is posted to the Customer’s address or address for notices.
3.9 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 seven (7) days following the date of the invoice.
3.10 Payment will be made by cash, or by cheque, or by bank cheque, or by direct credit, or by any other method as agreed to between the Customer and Full Power.
3.11 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.
4. Delivery and Risk
4.1 Delivery of the Goods (“Delivery”) is taken to occur at the time that:
(a) the Customer takes possession of the Goods at Full Power’s address; or
(b) Full Power delivers the Goods to the Customer’s nominated address (“Site”), even if the Customer is not present at the address.
4.2 At Full Power’s sole discretion, any costs of Delivery are either included in, or in addition to, the Price.
4.3 The Customer must take Delivery, either by receipt or collection of the Goods, whenever they are tendered for Delivery. In the event that the Customer is unable to take Delivery as arranged then Full Power shall be entitled to charge a reasonable fee for redelivery and/or storage.
4.4 Subject to clause 4.5 it is Full Power’s responsibility to ensure that the Services start as soon as it is reasonably possible.
4.5 The Services commencement date will be put back and the completion date extended by whatever time is reasonable in the event that Full Power claims an extension of time (by giving the Customer written notice) where completion is delayed by an event beyond Full Power’s control, including but not limited to any failure by the Customer to:
(a) make a selection; or
(b) have the Site ready for the Services; or
(c) notify Full Power that the Site is ready.
4.6 Any time or date given by Full Power to the Customer is an estimate only. The Customer must still accept Delivery even if late and Full Power will not be liable for any loss or damage incurred by the Customer as a result of Delivery being late.
4.7 Risk of damage to or loss of the Goods passes to the Customer on Delivery and the Customer must insure the Goods on or before Delivery.
4.8 If any of the Goods are damaged or destroyed following Delivery but prior to ownership passing to the Customer, Full Power is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by Full Power is sufficient evidence of Full Power’s rights to receive the insurance proceeds without the need for any person dealing with Full Power to make further enquiries.
4.9 If the Customer requests Full Power to leave Goods outside Full Power’s premises for collection or to deliver the Goods to an unattended location then such Goods shall be left at the Customer’s sole risk.
4.10 Full Power shall not be liable for any loss or damage whatsoever due to the failure by Full Power to deliver the Goods promptly or at all, where such failure is due to circumstances beyond the control of Full Power.
4.11 The Customer warrants that any structures to which the Goods are to be affixed are able to withstand the installation thereof 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) Full Power, its employees or contractors reasonably form the opinion that the Site is not safe for the installation of the Goods to proceed then Full Power shall be entitled to delay installation (in accordance with the provisions of clause 4.5 above) until Full Power is satisfied that it is safe to proceed. Full Power may at its sole discretion agree to bring the Site up to a standard suitable for installation to proceed but all such services undertaken and any additional materials supplied shall be treated as a variation and be charged for in addition to the Price.
5.1 Full Power and the Customer agree that ownership of the Goods shall not pass until:
(a) the Customer has paid Full Power all amounts owing to Full Power; and
(b) the Customer has met all other obligations due by the Customer to Full Power.
5.2 Receipt by Full Power 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 Full Power’s ownership or rights in respect of the Goods shall continue.
5.3 It is further agreed that:
(a) where practicable the Goods shall be kept separate and identifiable until Full Power shall have received payment and all other obligations of the Customer are met; and
(b) until such time as ownership of the Goods shall pass from Full Power to the Customer Full Power may give notice in writing to the Customer to return the Goods or any of them to Full Power. Upon such notice being given the rights of the Customer to obtain ownership or any other interest in the Goods shall cease; and
(c) the Customer is only a bailee of the Goods and until such time as Full Power has received payment in full for the Goods then the Customer shall hold any proceeds from the sale or disposal of the Goods, up to and including the amount the Customer owes to Full Power for the Goods, on trust for Full Power; and
(d) until such time that ownership in the Goods passes to the Customer, if the Goods are converted into other products, the parties agree that Full Power will be the owner of the end products; and
(e) if the Customer fails to return the Goods to Full Power then Full Power or Full Power’s agent may (as the invitee of the Customer) enter upon and into land and premises owned, occupied or used by the Customer, or any premises where the Goods are situated and take possession of the Goods, and Full Power will not be liable for any reasonable loss or damage suffered as a result of any action by Full Power under this clause.
6. Personal Property Securities Act 1999 (“PPSA”)
6.1 Upon assenting to these terms and conditions the Customer 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 (if any), and that will be supplied in the future, by Full Power to the Customer.
6.2 The Customer 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 Full Power may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register;
(b) indemnify, and upon demand reimburse, Full Power for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register or releasing any registration made thereby;
(c) not register a financing change statement or a change demand without the prior written consent of Full Power; and
(d) immediately advise Full Power 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.
6.3 Full Power and the Customer agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms and conditions.
6.4 The Customer waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA.
6.5 Unless otherwise agreed to in writing by Full Power, the Customer waives its right to receive a verification statement in accordance with section 148 of the PPSA.
6.6 The Customer will unconditionally ratify any actions taken by Full Power under clauses 6.1 to 6.5.
7. Default and Consequences of Default
7.1 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 Full Power’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
7.2 In the event that the Customer’s payment is dishonoured for any reason the Customer shall be liable for any dishonour fees incurred by Full Power.
7.3 If the Customer defaults in payment of any invoice when due, the Customer shall indemnify Full Power from and against all costs and disbursements incurred by Full Power in pursuing the debt including legal costs on a solicitor and own client basis and Full Power’s collection agency costs.
7.4 Without prejudice to any other remedies Full Power may have, if at any time the Customer is in breach of any obligation (including those relating to payment) Full Power may suspend or terminate the supply of Goods to the Customer and any of its other obligations under the terms and conditions. Full Power will not be liable to the Customer for any loss or damage the Customer suffers because Full Power has exercised its rights under this clause.
7.5 Without prejudice to Full Power’s other remedies at law Full Power shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to Full Power shall, whether or not due for payment, become immediately payable in the event that:
(a) any money payable to Full Power becomes overdue, or in Full Power’s opinion the Customer will be unable to meet its payments as they fall due; or
(b) the Customer 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 Customer or any asset of the Customer.
8.1 The Customer shall ensure that Full Power has clear and free access to the Site at all times to enable them to deliver the Goods. Full Power shall not be liable for any loss or damage to the site unless due to the negligence of Full Power.
9. Hidden Mains and Services
9.1 Prior to Full Power commencing any work the Customer must advise Full Power of the precise location of all hidden services on the site and clearly mark the same. The hidden mains and services the Customer 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 Full Power will take all care to avoid damage to any hidden services the Customer agrees to indemnify Full Power 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. Customer’s Disclaimer
10.1 The Customer hereby disclaims any right to rescind, or cancel any contract with Full Power or to sue for damages or to claim restitution arising out of any inadvertent misrepresentation made to the Customer by Full Power and the Customer acknowledges that the Goods are bought relying solely upon the Customer’s skill and judgment.
11. Defects, Returns and Warranty
11.1 The Customer shall inspect the Goods on Delivery and will within thirty (30) days of such (time being of the essence) notify Full Power of any alleged defect, shortage in quantity, error or omission, damage or failure to comply with the description or quote. The Customer shall afford Full Power an opportunity to inspect the Goods within a reasonable time following such notification if the Customer believes the Goods are defective in any way. If the Customer shall fail to comply with these provisions the Goods shall be presumed to be free from any defect or damage. For defective Goods, which Full Power has agreed in writing that the Customer is entitled to reject, Full Power’s liability is limited to either (at Full Power’s discretion) replacing the Goods or repairing the Goods.
11.2 Goods will not be accepted for return other than in accordance with 11.1 above.
11.3 Subject to the conditions of warranty set out in clause 11.4, Full Power warrants that if any defect in any workmanship of Full Power becomes apparent and is reported to Full Power within twelve (12) months of the date of Delivery (time being of the essence) then Full Power will either (at Full Power’s sole discretion) replace or remedy the workmanship.
11.4 The conditions applicable to the warranty given by clause 11.3 are:
(a) the warranty shall not cover any defect or damage which may be caused or partly caused by or arise through:
(i) failure on the part of the Customer to properly maintain any Goods; or
(ii) failure on the part of the Customer to follow any instructions or guidelines provided by Full Power; or
(iii) the use of any Goods otherwise than for any application specified on a quote, estimate or order form; or
(iv) the continued use of any Goods after any defect becomes apparent or would have become apparent to a reasonably prudent operator or user; or
(v) fair wear and tear, accident or act of God.
(b) the warranty will cease and Full Power will thereafter in no circumstances be liable under the terms of the warranty if the workmanship is repaired, altered or overhauled without Full Power’s consent.
(c) in respect of all claims Full Power will not be liable to compensate the Customer for any delay in either replacing or remedying the workmanship or in properly assessing the Customer’s claim.
11.5 For Goods not manufactured by Full Power, the warranty shall be the current warranty provided by the manufacturer of the Goods. Full Power 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.
11.6 In the case of second-hand Goods, the Customer acknowledges that they have had full opportunity to inspect the same and that they accept the same with all faults and that no warranty is given by Full Power as to the quality or suitability for any purpose and any implied warranty, statutory or otherwise, is expressly excluded. Full Power shall not be responsible for any loss or damage to the Goods, or caused by the Goods, or any part thereof however arising.
12. Intellectual Property
12.1 Where Full Power has designed, drawn or written Goods for the Customer, then the copyright in those designs and drawings and documents shall remain vested in Full Power, and shall only be used by the Customer at Full Power’s discretion.
12.2 The Customer warrants that all designs or instructions to Full Power will not cause Full Power to infringe any patent, registered design or trademark in the execution of the Customer’s order and the Customer agrees to indemnify Full Power against any action taken by a third party against Full Power in respect of any such infringement.
12.3 The Customer agrees that Full Power may use any documents, designs, drawings or Goods created by Full Power for the purposes of advertising, marketing, or entry into any competition.
13.1 Full Power 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 Customer. On giving such notice Full Power shall repay to the Customer any sums paid in respect of the Price. Full Power shall not be liable for any loss or damage whatsoever arising from such cancellation.
13.2 In the event that the Customer cancels delivery of the Goods the Customer shall be liable for any loss incurred by Full Power (including, but not limited to, any loss of profits) up to the time of cancellation.
13.3 Cancellation of orders for Goods made to the Customer’s specifications or non-stocklist items will definitely not be accepted, once production has commenced or an order has been placed.
14. Privacy Act 1993
14.1 The Customer authorises Full Power to:
(a) access, collect, retain and use any information about the Customer for the purpose of assessing the Customer’s creditworthiness or marketing products and services to the Customer; and
(b) disclose information about the Customer, whether collected by Full Power from the Customer directly or obtained by Full Power 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 Customer.
14.2 Where the Customer is an individual the authorities under clause 14.1 are authorities or consents for the purposes of the Privacy Act 1993.
14.3 The Customer shall have the right to request from Full Power a copy of the information about the Customer retained by Full Power and the right to request Full Power to correct any incorrect information about the Customer held by Full Power.
15. Unpaid Seller’s Rights
15.1 Where the Customer has left any item with Full Power for repair, modification, exchange or for Full Power to perform any other Service in relation to the item and Full Power has not received or been tendered the whole of the Price, or the payment has been dishonoured, Full Power shall have:
(a) a lien on the item;
(b) the right to retain the item for the Price while Full Power is in possession of the item;
(c) a right to sell the item.
15.2 The lien of Full Power shall continue despite the commencement of proceedings, or judgement for the Price having been obtained.
16. Exclusion and Limitation of Liability
16.1 Except as expressly provided in these terms and conditions, all warranties, undertakings, inducements or representations whether express, implied, statutory or otherwise relating in any way to the Goods or to these Terms are, to the maximum extent permitted by law, expressly excluded.
16.2 Where these Terms would otherwise be subject to the Consumer Guarantees Act 1993 and the Customer is acquiring the Goods supplied by Full Power for business purposes, the Customer acknowledges that the Consumer Guarantees Act 1993 will not apply.
16.3 Except where applicable law expressly requires otherwise, Full Power is not liable in any event for any special, indirect or consequential damage, loss or injury of any kind, or for any loss of business, profit, data or anticipated savings, suffered by the Customer or any other person, however caused, even if Full Power had been advised of the possibility of such damage, loss or injury.
16.4 Insofar as Full Power may be liable, the maximum liability of Full Power, whether in contract, tort (including negligence), equity, under statute or otherwise for any loss, damage or injury arising directly or indirectly from any breach of Full Power’s obligations is, except where applicable law expressly requires otherwise, limited, at the option of the Vendor, to any one or more of the following:
16.4.1 If the breach relates to Goods:
(a) The replacement of the Goods or the supply of equivalent Goods;
(b) The repair of such Goods;
(c) The payment of the cost of replacing the Goods or of acquiring equivalent Goods; or
(d) The payment of the cost of having the Goods repaired; and
16.4.2 If the breach relates to Services:
(a) The supplying of the Services again; or
(b) The payment of the cost of having the Services supplied again.
16.5 Full Power is not liable for any failure or delay in performing an obligation in these Terms if it is due to a cause reasonably beyond its control.
16.6 Full Power is not liable for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by Full Power of these terms and conditions.
17. Construction Contract Act 2002
17.1 The Customer hereby expressly acknowledges that:
(a) Full Power 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 Customer, and:
(i) the payment is not paid in full by the due date for payment and no payment schedule has been given by the Customer; or
(ii) a scheduled amount stated in a payment schedule issued by the Customer in relation to the payment claim is not paid in full by the due date for its payment; or
(iii) the Customer has not complied with an adjudicator’s notice that the Customer must pay an amount to Full Power by a particular date; and
(iv) Full Power has given written notice to the Customer of its intention to suspend the carrying out of construction work under the construction contract.
(b) if Full Power 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 Customer or by any person claiming through the Customer; 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 Full Power exercises the right to suspend work, the exercise of that right does not:
(i) affect any rights that would otherwise have been available to Full Power under the Contractual Remedies Act 1979; or
(ii) enable the Customer to exercise any rights that may otherwise have been available to the Customer under that Act as a direct consequence of Full Power suspending work under this provision.
18.1 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.
18.2 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.
18.3 The Customer shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Customer by Full Power nor to withhold payment of any invoice because part of that invoice is in dispute.
18.4 Full Power may license or sub-contract all or any part of its rights and obligations without the Customer’s consent.
18.5 Full Power 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 Full Power notifies the Customer of such change.
18.6 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.
18.7 The failure by Full Power to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect Full Power’s right to subsequently enforce that provision.
If you have any questions, please call and we will be happy to help you.