TERMS & CONDITIONS OF SALE

• 1. DEFINITIONS

1.1 “KESOL” shall mean Envy Holdings Ltd t/a Kiwi Energy Solutions, or any agents or employees thereof.

1.2 “Customer” shall mean the Customer, any person acting on behalf of and with the authority of the Customer, or any person purchasing goods or services from KESOL.

1.3 “Goods” shall mean all goods, chattels supplied or to be supplied by KESOL to the Customer and shall include any fee or charge associated with the supply of goods by KESOL to the Customer.

1.4 “Guarantor” means that person (or persons), or entity, who agrees to be liable for the debts of the Customer on a principal debtor basis.

1.5 “Services” shall mean all services provided by KESOL to the Customer and shall include without limitation the provision of all services and supplies, any charges for labour and work, hire charges, insurance charges, or any fee or charge associated with the supply of services by KESOL to the Customer.

1.6 “Price” shall mean the cost of the goods or services as agreed between KESOL and the Customer subject to clause 4 of this contract.

• 2. ACCEPTANCE

2.1 Any instructions received by KESOL from the Customer for the supply of Goods or Services shall constitute acceptance of the terms and conditions contained herein.

• 3. COLLECTION AND USE OF INFORMATION

3.1 The Customer authorizes KESOL to collect, retain and use any information about the Customer for the purpose of assessing the Customer’s credit worthiness and for debt collection purposes. The Customer authorizes KESOL to provide any information about the Customers credit position to any persons who may seek that information.

3.2 The Customer agrees that any information collected by KESOL about the Customer may be used by KESOL in the course of its business, for example to market any goods and services provided by KESOL to any other party.

3.3 The Customer must notify KESOL of any change in circumstances that may affect the accuracy of the information provided by the Customer to KESOL.

3.4 Where the Customer is a natural person: the authorities under clauses 3.1 and 3.2 are authorities or consents for the purposes of the Privacy Act 1993; and the Customer may access and request the correction of any personal information which KESOL holds about the Customer.

• 4. PRICE

4.1 Where no price is stated in writing or agreed to orally the Goods or Services shall be deemed to be sold at the current amount as such goods are sold or provided by KESOL at the time of the contract.

4.2 The price may be increased by the amount of any reasonable increase in the cost of supply of the goods or services that is beyond the control of KESOL between the date of the contract and delivery of the goods or providing of the services.

4.3 All pricing excludes GST unless otherwise stated.

4.4 All electrical and/or insulation services are subject to a minimum charge of $250.00 plus GST

• 5. PAYMENT & DEPOSIT

5.1 Payment for all goods or services shall be made in full within 7 days of receipt of delivery of Goods or the provision of Services, as the case may be (“the due date”).

5.2 Interest may be charged on any amount owing after the due date at the rate of 15% per month or part month.

5.3 Any expenses, disbursements and legal costs incurred by KESOL in the enforcement of any rights contained in this contract shall be paid by the Customer, including any reasonable solicitor’s fees or debt collection agency fees.

5.4 Receipt of a bill of exchange, or other negotiable instrument shall not constitute payment until such negotiable instrument is paid in full.

5.5 Upon acceptance of the quote, a 20% deposit is required

5.6 Internet Payment can be made directly to our bank account Westpac, Papanui 03-08540042335-000 using the quote or invoice number as the reference

5.7 The use of a credit card for any payment to KESOL will incur a credit card charge of 3% of the total processed by the card.

5.8 KESOL’s mailing address is PO Box 5233, Papanui 8542, Christchurch

5.9 At the option of the Seller goods and/or services may be delivered in instalments. Each delivery shall be regarded as a separate contract and goods and/or services shall be paid for accordingly. Failure to make any delivery shall not invalidate the contract as to other deliveries.

5.10 Except during an Uninvited Sales' Cooling Off Period, deposit's are non refundable unless permission given by the Manager.

• 6. QUOTATION

6.1 Where a quotation is given by KESOL for goods or services:

6.11 The quotation shall be valid for one month from the date of issue; and

6.12 The quotation shall be exclusive of Goods and Services Tax unless specifically stated to the contrary.

6.13 Where goods or services are required in addition to the quotation the Customer agrees to pay for the additional cost of goods or services.

6.2 The quotation is not an order to sell, and no order given in respect hereof shall bind the seller until accepted by the seller and such acceptance shall be signified by retention of the buyer cash and the issue of the seller’s official receipt, but such accepted order in respect of any goods quoted herein shall be deemed to be given and accepted at the prices and upon these terms.

6.3 The price quoted for this job is valid for further 30 days after the date of acceptance. Should installation not be carried out by the seller during the 60 day period from the date of quotation then the seller has the right to reprice this job at current rates.

6.4 This quotation provides for the site having in the opinion of the seller satisfactory access for the seller’s tools and machinery. If the site has poor access which causes added expense such as removal of rubbish the extra costs shall be for the buyer’s account.

6.5 The seller shall dispose of any surplus material.

6.6 The buyer is to provide at their cost any scaffolding staging or decking to comply with Health & Safety in Employment legislation which the seller determines is necessary for the delivery and installation of the goods.

6.7 The seller is committed to its health and safety policy; the buyer is to advise the seller of any known hazard to ensure the seller’s employees or contractors are working in a safe workplace.

• 7. USE OF DISCOUNT AND PROMOTIONAL PRICING

7.1 KESOL may, entirely at its discretion, offer discount or promotional pricing to the Customer for use on a case-by-case basis.

7.2 The offer of discount pricing does not entitle the Customer to any other special offer.

7.3 Discount pricing structures can be withdrawn, changed or deleted entirely at KESOL’s discretion.

• 8. RISK

8.1 Risk in any Goods agreed to be supplied to the Customer passes from KESOL to the Customer upon the Goods leaving the premises of KESOL for delivery to the Customer, even if title has not yet passed to the Customer.

8.2 If the Customer chooses to use their own carrier for collection of Goods, the Goods will be deemed to have been delivered to the Customer at the time of leaving the premises of KESOL. The Customer accepts that at the time of collection of the Goods from KESOL premises, the Customer will be liable for any loss or damage to the Goods during the process of delivery. KESOL will not accept responsibility or liability for any loss or damage that may result from the Customer arranging their own carrier.

8.3 The time agreed for delivery shall not be an essential term of this contract unless the Customer gives written notice to KESOL making time of the essence.

8.4 Where KESOL delivers Goods or provides Services to the Customer by instalments and KESOL fails to deliver or supply one or more instalments the Customer shall not have the right to repudiate the contract.

8.5 If the Customer is in default of their obligations to KESOL, KESOL may decline to deliver Goods to the Customer.

8.6 KESOL does not accept responsibility or liability for damage caused or attributable to the nature and condition of the construction of the property

• 9. AGENCY

9.1 The Customer authorizes KESOL to contract either as principal or agent for the provision of goods or services that are the matter of this contract.

9.2 Where KESOL enters into a contract of the type referred to in clause 9.1 it shall be read with and form part of this agreement and the Customer agrees to pay any amounts due under that contract.

9.3 No person in the employment of the seller has the authority except under signature of the General Manager to accept any order or supply and goods on and other condition nor to vary these terms and any way whatsoever.

• 10. TITLE

10.1 Title in all Goods that KESOL supplies to the Customer remains with KESOL until full payment for the Goods has been received.

10.2 Until title in the Goods passes to the Customer, the Customer will hold the Goods as Bailee and will not transfer possession of them or create any interest in them for the benefit of any third party.

10.3 If the Goods are attached, fixed, or incorporated into any property of the Customer, by way of any manufacturing or assembly process by the Customer or any third party, title in the Goods shall remain with KESOL until the Customer has made payment for all Goods, and where those Goods are mixed with other property so as to be part of or a constituent of any new goods, title to these new goods shall deemed to be assigned to KESOL as security for the full satisfaction by the Customer of the full amount owing between KESOL and Customer.

10.4 Customer grants to KESOL or its agents and employees a license to enter onto the Customer’s premises (or the premises of any associated company or agent) to take possession of any of the Goods to which KESOL has title. The Customer releases and indemnifies KESOL and its agents and employees in respect of any liability arising from the exercise of any rights under the license. If in breach of these terms, the Customer purports to sell any Goods belonging to KESOL then the Customer must keep the proceeds of the purported sale in a separate identifiable account and hold them on trust for KESOL until it has been paid in full. The Customer must pay all amounts owed to KESOL from such proceeds, on demand.

10.5 The Customer indemnifies KESOL in respect of all costs it reasonably incurs and liability it incurs in the exercise of rights to recover goods belonging to it.

• 11. PPSA SECURITY INTEREST

11.1 The Customer grants to KESOL a Security Interest in all present and after acquired goods supplied or to be supplied by KESOL and any proceeds of sale of the goods as security for all of the Customers obligations to KESOL. Where the goods and/or Proceeds are not readily identifiable and/or traceable or their recoverable value is insufficient to pay the indebtedness, the security interest shall also extend to all the Customers present and after acquired building products, of which the goods form part, to the extent required to secure the Indebtedness.

11.2 KESOL may register a Financing Statement to perfect its security in the Goods in accordance with the Personal Property Securities Act 1999 (‘PPSA’). The Customer shall, at its own expense, provide all information and execute or arrange for execution of all documents and do all things that KESOL may require to ensure that it has a perfected first ranking security interest in the Goods under the PPSA.

11.3 The Customer shall not change its name without first notifying KESOL of the new name not less than 7 days before the change takes effect to enable KESOL to register a financing change statement if required.

11.4 The Customer warrants that the Goods are purchased for use primarily for personal, domestic or household purposes.

11.5 Notwithstanding any reference to a particular invoice/order, where any sum remains outstanding by the Customer on more than one invoice/order, any payments received from the Customer shall be deemed to be made by the Customer and applied by KESOL in respect of each unpaid invoice/order on a pro rata basis PROVIDED THAT where KESOL applies payments in this manner it shall not charge interest on overdue balances that would have been cleared if the payments were not allocated pro rata. Until the Customer has paid all money owing to KESOL the Customer shall always ensure that: the Goods supplied by KESOL, while in the Customer’s possession, can be readily identified and distinguished; and/or all Proceeds (in whatever form) that the Customer receives from the sale of any of the Goods are readily Identifiable and Traceable.

11.6 Where the Goods are purchased by the Customer as stock in trade for sale or lease in the ordinary course of the Customer’s business, nothing in this clause shall prevent the Customer from selling or leasing and delivering the Goods in the ordinary course of the Customer’s business. Otherwise, until the Customer has paid all money owing to KESOL, the Customer shall not sell or grant a Security Interest in the goods without KESOL’s written consent.

11.7 The Customer agrees that as between KESOL and the Customer, the Customer will have no rights under (or by reference to) sections 114(1)(a), 116, 117(1)(c), 119, 120(2), 121, 125, 129, 131, 132, 133 and 134 of the PPSA and where KESOL has rights in addition to those in part 9 of the PPSA those rights shall continue to apply.

11.8 For the purpose of this clause words and phrases starting with a capital letter shall have the respective meanings given to them under, or in the context of the PPSA.

• 12. SECURITY AND CHANGE

12.1 Despite anything to the contrary contained herein or any other rights which KESOL may have howsoever: where the Customer and/or the Guarantor (if any) is the owner of land, realty or any other asset capable of being charged, the Customer 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 KESOL or KESOL’s nominee to secure all amounts and other monetary obligations payable under these terms and conditions. The Customer and/or the Guarantor acknowledge and agree that KESOL (or KESOL’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 KESOL elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Customer and/or Guarantor shall indemnify KESOL from and against all KESOL’s costs and disbursements including legal costs on a solicitor and own client basis and the Customer and/or the Guarantor (if any) agree to irrevocably nominate constitute and appoint KESOL or KESOL’s nominee as the Customer’s and/or Guarantor’s true and lawful attorney to perform all necessary acts to give effect to the provisions of this clause 12.

• 13. RETURN OF GOODS

13.1 The Customer shall be deemed to have accepted the Goods unless the Customer notifies KESOL otherwise within 2 working days of delivery of the goods to the Customer.

13.2 No Goods will be accepted for return by KESOL without prior approval by a senior manager of KESOL.

13.3 Any goods being returned to KESOL for a reason other than the goods being faulty or damaged will see the customer incur a re-stocking fee of 25% of the value of the goods being returned based on the invoice price. The customer will also be invoiced for the value of the original freight costs associated with the original dispatch of those goods.

13.4 KESOL will recover any restocking fee and/or charges from the customer’s deposit prior to any refunds.

13.5 If the Customer asked KESOL to provide and/or arrange a finance facility to enable a “No Deposit” or “Payment Plan” payment option, KESOL will draw down from the Customer’s arranged finance facility any fees or charges. The Customer will be liable for these costs.

13.6 Any goods specially imported or special ordered for the customer cannot be returned to KESOL.

• 14. LIABILITY

14.1 Except as otherwise provided by statute KESOL shall not be liable for:

14.2 Any loss or damage of any kind whatsoever whether suffered or incurred by the Customer or another person whether such loss or damage arises directly or indirectly from goods or services or advice provided by KESOL to the Customer and without limiting the generality of the foregoing of this clause KESOL shall not be liable for any consequential loss or damage of any kind including without limitation any financial loss; and Except as provided in this contract KESOL shall not be liable in contract, or in tort, or otherwise for any loss, damage, or injury beyond the value of the goods or services provided by KESOL to the Customer; and

14.3 The Customer shall indemnify KESOL against all claims of any kind whatsoever however caused or arising and without limiting the generality of the foregoing of this clause whether caused or arising as a result of the negligence of KESOL or otherwise, brought by any person in connection with any matter, act, omission, or error by KESOL its agents or employees in connection with the goods or services.

14.4 The Customer is liable for the full cost of the goods and any associated costs incurred by KESOL if the Customer cancels or changes the goods and /or services agreed too after KESOL has incurred any costs and/or changed the format of the goods for this Customer.

14.5 At the option of the Seller goods and/or services may be delivered in instalments. Each delivery shall be regarded as a separate contract and goods and/or services shall be paid for accordingly. Failure to make any delivery shall not invalidate the contract as to other deliveries.

• 15. CONSUMER GUARANTEES ACT

15.1 The guarantees contained in the Consumer Guarantees Act 1993 are excluded where the Customer acquires goods or services from KESOL for the purposes of a business in terms of section 2 and 43 of that Act.

15.2 Sale by Description. The goods and services are sold on description as set out on the KESOL’s invoice forms.

15.3 The goods are supplied and/or installed on the basis that the Customer has made the final decision regarding correct product selection for the purpose that they are intended for and that KESOL is not liable for incorrect product choice.

15.4 All product and/or services supplied by the Seller are supplied in good faith under the terms of the Consumer Guarantees Act, Fair Trading Act and product warranty

• 16. WARRANTY

16.1 No representation, condition, warranty or premise expressed or implied by law or otherwise applies to Goods or Services except where goods are supplied, or services provided pursuant to the Consumer Guarantees Act 1993 or except where expressly stated in this contract.

16.2 The relevant warranty provided by KESOL for products supplied and the conditions that apply to that warranty, are set out in the current technical literature for each product, or on KESOL (or KESOL’s suppliers) website/s. The Warranties and their conditions are deemed to form part of these Terms and Conditions.

• 17. CANCELLATION

17.1 KESOL shall, without any liability, and without any prejudice to any other right it has in law or equity, have the right by notice to suspend or cancel in whole or in part any contract for the supply of goods or services to the Customer if the Customer fails to pay any money owing after the due date or the Customer commits an act of bankruptcy as defined in section 19 of the Insolvency Act 1967.

17.2 Any cancellation or suspension under clause 17.1 of this agreement shall not affect KESOL’s claim for money due at the time of cancellation or suspension or for damages for any breach of any terms of this contract or the Customer’s obligations to KESOL under this contract.

17.3 Once a sales order has been approved and processed by KESOL and passed it’s 5 day cooling off period; cancellation by the customer for a reason other than the goods being faulty or damaged will see the customer incur a re-stocking fee of 25% of the value of the goods and services based on the invoice or quote price. The customer will also be invoiced for the value of the original freight costs associated with the original dispatch of those goods.

17.4 KESOL will recover any restocking fee and/or charges from the customer’s deposit prior to any refunds. If the Customer asked KESOL to provide and/or arrange a finance facility to enable a “No Deposit” or “Payment Plan” payment option, KESOL will draw down from the Customer’s arranged finance facility any fees or charges. The Customer will be liable for these costs.

17.5 Any goods specially imported or special ordered for the customer cannot be returned to KESOL.

• 18. MISCELLANEOUS

18.1 The Customer shall not assign all or any of its rights or obligations under this contract without the written consent of KESOL.

18.2 KESOL shall not be liable for delay or failure to perform its obligations if the cause of the delay or failure is beyond its control.

18.3 Failure by KESOL to enforce any of the terms and conditions contained in this contract shall not be deemed to be a waiver of any of the rights or obligations KESOL has under this contract.

18.4 The law of New Zealand shall apply to this contract except to the extent expressly negotiated, agreed, or varied by this contract.

18.5 Where the terms of this contract are at variance with the order or instruction from the Customer, this contract shall prevail.

18.6 If any provision of this contract shall be invalid, void, illegal or unenforceable the validity existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.

18.7 Any dispute between the parties is to be dealt with in accordance with the Arbitration Act 1996.

18.8 All proceedings concerning this contract shall be filed in the District Court or High Court situated at Christchurch

18.91 In the event the customer has asked KESOL to arrange a finance facility which is then unsuccessful, the customer authorizes KESOL to automatically try a 2nd alternative.

18.92 Failure to meet credit worthiness will constitute reason for cancellation of the contract by KESOL without incurring any costs.

 

Updated 171/10/22

Kiwi Energy Solutions

45 Nancy Ave