Orange Mini Electrical Limited – Terms of Trade
1. General
1.1 This agreement consists of these terms and any Statement of Work which the parties may agree from time to time (Agreement). Each Statement of Work takes effect on the date it is accepted by the Customer and shall terminate in accordance with this Agreement or otherwise in accordance with any special condition in the Statement of Work. These terms apply to each Statement of Work.
2. Definitions and Interpretation
2.1 In this Agreement, unless the context requires otherwise:
Additional Expense Charges means the additional expense charge (if any) set out in a Statement of Work or as otherwise reasonably specified by the Company;
Company means Orange Mini Electrical Limited (company number: 8154473);
Customer means the entity or person being provided Works by the Company and if there is more than one Customer is a reference to each Customer jointly and severally;
Force Majeure Event means the occurrence of an event which is beyond the Company’s reasonable control (including, without limitation an act of God or public enemy, flood, earthquake, storm, cyclone, tornado, hurricane, lightning, fire, explosion, epidemic, war, embargo, riot or civil disturbance, strike or other labour dispute, sabotage, expropriation, confiscation or requisitioning of facilities, or by orders or temporary or permanent injunctions of any duly constituted court of competent jurisdiction);
Goods means any goods, accessories, components, and materials supplied by the Company to the Customer as part of the Works;
GST means the applicable goods and services tax in accordance with the Goods and Services Tax Act 1985;
Location means the place at which the Works are carried out for the Customer;
Manufacturer Instructions means the installation and/or operating instruction or guidelines for the Goods supplied from time to time by the manufacturer of the Goods and included in the Works;
Manufacturer’s Warranty means the warranty supplied from time to time by the manufacturer of the Goods;
Personal Information has the same meaning set out in the Company’s privacy policy found at https://ome.kiwi/legal/privacy-policy/;
PPSA means the Personal Property Securities Act 1999;
PPSR means the Personal Property Securities Register;
Price means the amount specified in each Statement of Work (subject to any Variation) or as specified otherwise by the Company to the Customer representing the cost for the Works;
Services means the services provided by the Company to the Customer as part of the Works, which may include (without limitation) the installation of the Goods;
Services Delay Charge means the services delay charge (if any) set out in a Statement of Work or as otherwise reasonably specified by the Company;
Services Interruption Event means any interruption to the Works caused by:
• a Force Majeure Event;
• the Customer’s failure to carry out or perform any obligation required of it under this Agreement which in the opinion of the Company may cause a delay in the Works; or
• any other matter which in the reasonable opinion of the Company will cause an interruption or delay in the performance of the
Statement of Work means the details outlining the provision of the Works, which statement can be delivered verbally or in writing (including email) and may include (where applicable) an estimate or quote;
Underground Services means any underground main or service which shall include electrical services, gas services, sewer services, plumbing services, sewer connections, sewer sludge mains, water mains, irrigation pipes, telephone cables, fibre optic cables, oil pumping mains, and other services that may be at the Location;
Variation means a change in the Works including the specifications, scope, time of supply, price or scale of the Works and such variation shall form part of this Agreement;
Working Day means a day that is not a Saturday, Sunday or any other day that is not a public holiday or a regional holiday in Auckland;
Workmanship means the Services performed are done so properly, competently, and in accordance with any Statement of Work; and
Works means the supply of Goods and the provision of Services to the Customer from time to time as may be set out in a Statement of Work.
2.2 Unless the context requires otherwise, references to:
(a) legislation are references to New Zealand legislation and include all subordinate legislation, any re-enactment of, or amendment to, that legislation and all legislation passed in substitution for that legislation;
(b) singular word includes the plural and vice versa;
(c) the word “including” and similar words do not imply any limitation; and
(d) any party to this Agreement shall include that party’s executors, administrators, successors and/or permitted assigns (as the case may be).
2.3 Headings are inserted for convenience only and are to be ignored in interpreting this Agreement.
2.4 Unless otherwise specified any Pricing is exclusive of GST. GST is payable at the same time and in the same manner as is any other amount payable under this Agreement where that amount is subject to GST.
2.5 Where this Agreement requires anything to be done or any time period expires on a day which is not a Working Day, then the thing must be done on the next Working Day.
3. Acceptance and Provision of Works
3.1 Once the Customer accepts a quote, any Statement of Work or instructs the Company to commence Works, the Customer shall be deemed to have accepted this Agreement and shall immediately be bound by this Agreement. The Company will commence the Works as soon as is reasonably practicable or as advised to the Customer.
4. Statement of Work
4.1 The Company may supply to the Customer a Statement of Work for any Works to be carried out by the Company for the Customer. If the Statement of Work includes a quotation, then that quote shall be valid for 30 days from the date of the quotation.
4.2 The Company reserves the right by written notice, to alter or amend any Statement of Work before it has been accepted by the Customer.
4.3 The Company further reserves the right to alter or amend any Statement of Work where:
(a) The Customer’s original requirements are varied by the Customer in accordance with this Agreement;
(b) Any plans, specifications or information provided by the Customer and relied upon by the Company for the purpose of providing the Works prove to be inaccurate or unreliable;
(c) There is an increase in the cost of the Goods or Services, where such increase is beyond the control of the Company; and
(d) Conditions outside the Company’s control cause delays to either the commencement or completion of the Works.
5. Variations
5.1 Unless otherwise agreed by the parties, the Customer may only require a Variation to the Works as follows:
(a) The Customer must submit a written request to the Company outlining the requested variation;
(b) The Company must within 2 Working Days of receiving the request, notify the Customer in writing advising of any problems arising from the proposed change (including timing), an estimate of any additional costs arising from carrying out the change to the Works and any change to the Price (Company’s Variation Notice);
(c) The Customer will have 2 Working Days from receiving the Company’s Variation Notice to issue a written notice accepting or rejecting those matters (Customer Variation Notice);
(d) If the Customer does not provide the Company with a Customer Variation Notice within the time frame stated above, then the Customer shall be deemed to have accepted the Company’s Variation Notice; and
(e) If the Customer rejects the matters contained in the Company’s Variation Notice, then the Company will continue to carry out the Works according to the original Statement of Work.
5.2 The supply of Goods is subject to availability and if for any reason the Goods cease to be available the Company reserves the right to substitute the Goods with suitable alternatives and any actual increased costs shall be payable by the Customer.
6. Services Interruption
6.1 Without prejudice to any other right or remedy of the Company, the parties acknowledge that from time to time a Services Interruption Event may occur and, in that case, such occurrence will delay the Works and will entitle the Company to immediately cease the performance of any part of the Works until the Services Interruption Event ends or is remedied (as the case may be).
6.2 The Customer acknowledges that there may be an Additional Expenses Charge relating to recommencement of the Works after the occurrence of a Services Interruption Event. The Customer agrees to pay the Additional Expenses Charge upon the rendering of an invoice by the Company.
7. Payment
7.1 The amount charged by the Company for carrying out any Works shall be as specified in the Statement of Work or as otherwise specified from the Company to the Customer, subject to any Variation, Additional Expenses Charges, and/or Services Delay Charge.
7.2 The Customer shall be charged the Company’s call-out fee or travel costs either through a fixed charge, mileage fee, or in any other way the Company reasonably determines.
7.3 Unless specifically stated in the Statement of Work or any agreed payment schedule for the Works (which shall form part of this Agreement) payment is due as follows:
(a) A 50% deposit (based on the Price of the Works) is required before the commencement of the Works and receipt of the Company’s invoice; and
(b) The balance of the Price for the Works is payable on completion of the Works and receipt of the Company’s invoice.
7.4 If the Customer has a credit account, then the Company may send invoices to the Customer at frequencies that the Company deems appropriate and the invoice is payable within 7 days of the date of invoice or as specified otherwise in writing by the Company.
7.5 The Company may impose a credit limit on the Customer’s account and alter the credit limit without notice. Where the credit limit is exceeded, the Company may refuse to perform further Services for the Customer.
7.6 The Customer may not withhold payment or make any deductions from or set off any amount against any amount owing without the Company’s prior written consent.
7.7 If the Customer fails to make any payment on its due date, the Customer shall be required to pay interest on the amount outstanding at the rate of 15% per annum calculated daily from the due date for payment until payment is made. The Customer shall also pay all costs, expenses and charges (including legal costs on a solicitor/client basis) that are incurred by the Company in recovering any money owing to the Company by the Customer.
7.8 The Company has the absolute right to withhold delivery or to suspend the Works where the Customer has not adhered to this clause 7.
8. Delivery, Risk and Insurance
8.1 If the Company has specified an anticipated delivery date, the Company will use its reasonable endeavours to arrange delivery of the Goods and performance of the Services by that date. The Company is not liable for any failure to deliver by that date, or for any delay.
8.2 Delivery of Goods to the Customer shall be deemed completed either upon the Company delivering the Goods to the Location or making the Goods available for collection at the Company’s premises.
8.3 Irrespective of whether ownership and title in the Goods remains vested in the Company, risk in the Goods shall pass to the Customer upon delivery. The Customer is responsible for all insurance of all Goods from the time of delivery.
8.4 The Company at its absolute discretion may allow the Customer to return new Goods that remain in re-saleable condition and the Company reserves the right to charge a return fee of up to 10% of the price of such Goods.
9. Obligations of the Customer
9.1 The Customer agrees to:
(a) Pay the Company the Price for carrying out the Works in accordance with this Agreement;
(b) Provide the Company with all necessary and accurate plans, specifications, measurements, services and amenities, so as to allow the Company to carry out the Works, provide access to the Location and ensure (to the Company’s reasonable satisfaction) that the Location remains in a state and condition that is safe for the Company and its employees and agents;
(c) Ensure the Location complies with all necessary bylaws and restrictions, is structurally sound and safe to complete the Works (in accordance with all legislation governing health and safety in the workplace);
(d) Not to cause any disruption or obstruction to the carrying out of any Works and to follow any reasonable instructions provided by the Company about the Works;
(e) Where the Works require co ordination with other tradespersons then the Customer will supply the Company with a schedule detailing all relevant information so as to allow the Company sufficient time to co-ordinate with the Customer’s other tradespersons;
(f) Arrange for any scaffolding at the Customer’s expense which the Company (in the Company’s sole discretion) considers necessary to complete the Works in a safe manner;
(g) Permit the Company to attach such reasonable signage as the Company may wish to any Works so as to identify that the Company is carrying out the Works;
(h) Clean up and remove any rubbish from the Location at the Customer’s cost;
(i) Advise the Company of the precise location of all Underground Services on the site and make sure it is clearly marked; and
(j) Exclusively permit the Company or its authorised representative to remedy or make good any defects in its Workmanship and not permit any other third party to do so.
9.2 Without prejudice to any other right or remedy of the Company, if the Customer fails to carry out or perform any of its obligations pursuant to this clause 9 then, in addition to any Additional Expenses Charge that may apply, the Company may charge the Customer a Services Delay Charge for each day (or part thereon) that the Company is (in its reasonable opinion) unable to carry out or perform the Works as a result of such breach by the Customer.
9.3 The Customer acknowledges that unless otherwise agreed in writing between the Customer and the Company, the Customer shall be responsible for obtaining, paying for and maintaining in force all permits, approvals, authorisations, authorities, licences and consents of all regulatory authorities whatsoever which are or may be necessary or advisable in connection with the Works.
10. Title and Security
10.1 Ownership and title in the Goods, or any proceeds from the on sale of the Goods, shall not pass to the Customer until the Customer has paid the Company in full for the Works and all other sums due to the Company by the Customer on any account whatsoever in accordance with this Agreement.
10.2 If the Company supplies Goods without first obtaining payment in full for the same, then the Customer acknowledges and agrees that the Company shall be entitled at the cost in all respects of the Customer, to register on the PPSR, any security interest that the Company possesses in respect of all Goods supplied and the proceeds of on sale of such Goods and the Customer acknowledges that the Company’s security interest survives until the Customer pays in full all sums due to the Company under this Agreement.
10.3 The Customer acknowledges and agrees that until payment in full has been made to the Company for all of the Works supplied:
(a) The Company possesses a “Purchase Money Security Interest” (as that term is defined in the PPSA) in the Goods and any proceeds from the on-sale of those Goods; and
(b) If the Customer on-sells the Goods prior to payment to the Company, the Customer will pay the proceeds derived from that on-sale into aseparate account for the benefit and as trustee for the Company so that those proceeds remain identifiable in connection with that on-sale and the Goods.
10.4 If at any time the Company has sufficient cause to exercise its rights under section 109 of the PPSA, the Customer irrevocably grants the Company the right and licence to enter the Location or the Customer’s premises to remove and repossess the Goods, without notice and without liability whatsoever to the Customer, or to any person or company claiming through the Customer.
10.5 The Customer covenants to assist and co operate with the Company by completing any document and/or providing any information as may be required by the Company in order for the Company to achieve and perfect its desired security position under the PPSA and the Customer waives any right to receive a verification statement in respect of any, financing statement or financing change statement relating to the security interest under the PPSA.
10.6 Nothing in sections 114(1)(a), 117(1), 133 and 134 of the PPSA shall apply to this Agreement nor shall the Customer’s rights as a debtor in sections 116, 119, 120(2), 121, 125-127, 129 and 132 of the PPSA apply to this Agreement.
10.7 The Company acknowledges and agrees that:
(a) the Company shall be entitled to a mortgage over the Customer’s rights, title and interest in any real property owned by the Customer (whether joint or several) to secure performance by the Customer of its obligations under this Agreement (including but not limited to the payment of any moneys); and
(b) The agreement to mortgage in clause (a) above shall constitute a caveatable interest in favour of the Company.
10.8 The Customer indemnifies the Company from and against all of the Company’s legal costs incurred in exercising the Company’s rights under clause 10.7.
11. Warranties
11.1 The only warranties relating to the Goods are the Manufacturer’s Warranty. Subject to clause 12.3, and to the maximum extent permitted by law, the Company expressly excludes all other conditions, warranties, guarantees, descriptions, representations, conditions as to fitness or suitability or fitness for any purpose, tolerance to any conditions, merchantability, appearance, safety, durability or otherwise (whether of a like nature or not) and whether express or implied by law, trade custom or otherwise.
11.2 Subject to clause 12.3, the Company warrants that it will repair or make good any defects in related to Workmanship arising within one year following completion of the Services for which the defect is claimed (Workmanship Warranty), provided it receives written notice from the Customer of the claim within 7 Working Days following discovery (or when the Customer would have reasonably discovered) the defect.
11.3 The Workmanship Warranty is subject to the following:
(a) The liability limitations in clause 12;
(b) The Workmanship Warranty does not cover any occurrence which would normally be covered by public liability insurance or any other form of insurance;
(c) The Workmanship Warranty does not apply where alterations or repairs are made by the Customer or any third party to the Works without the knowledge and prior written consent of the Company (and without the Company first having the opportunity to remedy the same to its satisfaction);
(d) The benefit of the Workmanship Warranty is not assignable;
(e) The Workmanship Warranty does not apply for so long as the Works have not been completed in full or the Customer is in default in relation to any payment owing to the Company; and
(f) The Workmanship Warranty does not apply to any appliance service repair work.
11.4 The Company is a member of the Electrical Contractors Association of New Zealand (ECANZ) and ECANZ provides a workmanship guarantee for certain residential work carried out by its members. The Customer agrees that it shall not lodge a claim with ECANZ without first going through the Workmanship Warranty process with the Company in accordance with clauses 11.2 and 11.3.
12. Limitation of Liability
12.1 Notwithstanding any other provision of these terms, but subject to clause 12.3, under no circumstances, shall the Company be liable to the Customer or any other person (whether in contract, tort, including negligence, statute or otherwise) for any:
(a) Loss of profits;
(b) Consequential loss or damage;
(c) Indirect loss or damage; or
(d) Special loss or damage of any kind.
12.2 Notwithstanding any other provision of this Agreement, but subject to clause 12.3, if for any reason the Company becomes liable for loss or damage then its total liability to the Customer arising out of any claim for damages for any cause will be limited at the Company’s election to either the:
(a) Value of that part of the Works giving rise to the claim; or
(b) Actual damage or loss suffered by the Customer,
whichever is lesser.
12.3 The parties agree that if the Services or Goods provided are supplied and acquired in trade then, in that case, the parties agree to contract out of:
(a) Sections 9, 12A, or 13 of the Fair Trading Act 1986 in accordance with section 5D of the Fair Trading Act 1986;
(b) The Consumer Guarantees Act 1993 in accordance with section 43 of the Consumer Guarantees Act 1993; and
(c) Any terms and conditions implied by law in accordance with section 197 of the Contract and Commercial Law Act 2017,
such agreement being acknowledged as fair and reasonable for the parties to be bound by this clause. Nothing in these terms is intended to contract out of the provisions of the Consumer Guarantees Act 1993 or the Fair Trading Act 1986, except to the extent permitted by those Acts.
12.4 While the Company shall take reasonable care to avoid damaging any Underground Services, the Customer agrees to indemnify the Company in respect of all liability, claims, loss, damage, costs or fines are a result of any damage to the Underground Services due to the Customer not correctly and precisely locating and advised the Company of such Underground Services in accordance with clause 9.1(i).
13. Hazards
13.1 If the Company identifies any hazardous, toxic, or otherwise dangerous materials (Dangerous Materials) around the Location it will be the Customer’s responsibility to test such Dangerous Materials and if necessary remove the Dangerous Materials from the Location.
13.2 The Customer must confirm to the Company’s satisfaction (in the Company’s sole discretion) that the Dangerous Materials are safe or have been removed by a suitably qualified person.
13.3 The parties agree if the Customer fails to abide by clause 13.2, then the Customer may suspend the Works and treat it as a Services interruption Event until such time as clause 13.2 has been adhered to.
14. Rights of Termination
14.1 The Company may in its sole discretion terminate this Agreement by written notice to the Customer if:
(a) The Customer defaults in performing its obligations under this Agreement and the default, if capable of being remedied, is not remedied within 7 Working Days from receiving a notice specifying the default and requiring remedy;
(b) The Customer defaults in the performance of its obligations under this Agreement and the default is in the Company’s reasonable opinion incapable of being remedied;
(c) The Customer commits an act of insolvency including a compromise with creditors or appoints a voluntary administrator, receiver, or liquidator;
(d) If an arrangement with the Customer’s creditors is made or likely to be made;
(e) If the Customer ceases or threatens to cease carrying on business; or
(f) If the ownership or effective control of the Customer has changed.
14.2 Upon termination of this Agreement in accordance with this clause, the Customer will (subject to any payment obligation) be liable to pay the Company for:
(a) The value of that part of the completed Works delivered, performed, and payable according to the terms of this Agreement and not previously paid for as at the date of termination; and
(b) Any reasonable costs that the Company has incurred as a result of the early termination.
14.3 Termination of this Agreement will not prejudice or affect the rights or remedies available to the Company.
14.4 The expiry or termination of this Agreement will not affect any provisions of these Agreement, which are expressly or by implication, intended to continue after expiry or termination.
15. Cancellation
15.1 The Company reserves the right to cancel the Works for any reason by notifying the Customer and providing a refund of any amounts paid in advance for Works that are not completed.
16. Intellectual Property
16.1 All of the trademarks, patents, copyright, designs (including rights of drawings, calculations, models, samples, descriptions, figures, dimension specifications and the like) or other intellectual property rights (whether or not registered) in respect of the Goods and the Works (collectively Intellectual Property) remains the Company’s or the manufacturer’s property notwithstanding the sale of the Goods and the provision of the Works to the Customer.
17. Authorised Representatives
17.1 The Customer agrees that the Company shall communicate with one authorised representative (Authorised Representative). Once introduced to the Company the Authorised Representative shall full authority to order any Works and request any Variations. The Customer shall be solely liable for any additional costs incurred by the Company (including the Company’s profit margin) in providing any Works or Variations advised by the Authorised Representative.
18. Privacy Policy
18.1 The Client agrees that the Company may use, collect and disclose Personal Information received, created or obtained in connection with this Agreement in accordance with the Company’s privacy policy found at https://ome.kiwi/legal/privacy-policy/.
19. Construction Contracts Act 2002
19.1 The Company shall be entitled to exercise any powers available to the Company under the Construction Contracts Act 2002, including suspending the Works, seeking adjudication or obtaining charging orders.
20. Disputes
20.1 Any party who claims that a dispute has arisen in relation to this Agreement may give written notice to the other party specifying the nature of the dispute.
20.2 On receipt of the notice by the other party, the parties to this Agreement must use their respective reasonable endeavours to resolve the dispute.
21. Miscellaneous
21.1 The Company may assign or subcontract its rights or obligations under Agreement.
21.2 The Customer may not assign all or any of its rights or obligations under this Agreement without the written consent of the Company.
21.3 All notices to be served upon either party shall be deemed to be duly served if sent by email to an email address supplied by the party or left at or sent by ordinary prepaid post to the last known address of the party. Each party shall be deemed to have received any notice:
(a) If sent by email when the notice enters the information system of the receiving party, if this occurs within business hours in the place where the party’s principal place of business is located in New Zealand, but if not, then at 9.00 a.m. on the following working day in such place; and
(b) If posted, 4 Working Days after posting.
21.4 The Company reserves the right to review and amend any of these terms at any time. Any change will take effect on Works orders after the date on which the Company publishes the revised terms on its website, except where the amended term is found by any court or administrative body of competent jurisdiction, or otherwise considered by the Company, to be invalid, unenforceable or illegal (whether as between the parties to these terms or in relation to any third party) in which case the last previously valid, enforceable and legal term shall continue to apply.
21.5 This Agreement contains all terms of the arrangement between the parties and supersedes and extinguishes any prior agreements, discussion, representations and arrangements between the parties about the matters covered in this Agreement.
21.6 Any waiver or failure to execute any rights by the Company shall not be deemed a waiver of any further or other right of the Company in respect of the Customer.
21.7 This Agreement shall be subject to the laws of New Zealand and the courts of New Zealand shall have exclusive jurisdiction.