EXLAIR (NZ) LIMITED – TRADING AS ASH AIR
TERMS & CONDITIONS OF TRADE
DATE OF ISSUE: August 2014
VERSION.VERSION DATE: V1.1092014
3. Collection and Use of Information
8. Title and Security
9. Security Interest for Service Providers
|10. Payment Allocation
11. General Lien
16. Copyright and Intellectual Property
17. Consumer Guarantees Act
1.1 “Ash Air” shall mean Exlair (NZ) Limited – trading as Ash Air, 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 products and services from Ash Air.
1.3 “Products” shall mean:
1.3.1 all Products of the general description specified on the front of this agreement and supplied by Ash Air to the Customer; and
1.3.2 all Products supplied by Ash Air to the Customer; and
1.3.3 all inventory of the Customer that is supplied by; and
1.3.4 all Products supplied by Ash Air and further identified in any invoice issued by Ash Air to the Customer, which invoices are deemed to be incorporated into and form part of this agreement; and
1.3.5 all Products that are marked as having been supplied by Ash Air or that are stored by the Customer in a manner that enables them to be identified as having been supplied by Ash Air; and
1.3.6 all of the Customer’s present and after-acquired Products that Ash Air has performed work on or to or in which Products or materials supplied or financed by Ash Air have been attached or incorporated.
1.3.7 The above descriptions may overlap but each is independent of and does not limit the others.
1.4 “Products and Services” shall mean all products, goods, services and advice provided by Ash Air to the Customer and shall include without limitation the design, supply, repair, maintenance and servicing of air equipment and associated Products and all technical advice and all charges for labour, hire charges, insurance charges, or any fee or charge associated with the supply of Products and Services by Ash Air to the Customer.
1.5 “Price” shall mean the cost of the Products and Services as agreed between Ash Air and the Customer and includes all disbursements eg charges Ash Air pay to others on the Customer's behalf subject to clause 4 of this contract.
2.1 Any instructions received by Ash Air from the Customer for the supply of Products and Services shall constitute a binding contract and acceptance of the terms and conditions contained herein.
3.1 The Customer authorises Ash Air to collect, retain and use any information about the Customer, for the purpose of assessing the Customer’s credit worthiness, enforcing any rights under this contract, or marketing any Products and Services provided by Ash Air to any other party.
3.2 The Customer authorises Ash Air to disclose any information obtained to any person for the purposes set out in clause 3.1.
3.3 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.
4.1 Where no price is stated in writing or agreed to orally the Products and Services shall be deemed to be sold at the current amount as such Products and Services are sold by Ash Air 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 Products and Services that is beyond the control of Ash Air between the date of the contract and delivery of the Products and Services.
5.1 Payment for Products and Services shall be made in full on or before the 20th day of the month following the date of the invoice (“the due date”).
5.2 Interest may be charged on any amount owing after the due date at the rate of 2.5% per month or part month.
5.3 Any expenses, disbursements and legal costs incurred by Ash Air 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 cheque, bill of exchange, or other negotiable instrument shall not constitute payment until such negotiable instrument is paid in full.
5.5 A deposit may be required.
6.1 Where a quotation is given by Ash Air for Products and Services:
6.1.1 Unless otherwise agreed the quotation shall be valid for thirty (30) days from the date of issue; an d
6.1.2 The quotation shall be exclusive of Products and services tax unless specifically stated to the contrary;
6.1.3 Ash Air reserve the right to alter the quotation because of circumstances beyond its control.
6.2 Where Products and Services are required in addition to the quotation the Customer agrees to pay for the additional cost of such Products and Services.
7.1 The Products and Services remain at Ash Air’s risk until delivery to the Customer.
7.2 Delivery of Products and Services shall be deemed complete when Ash Air gives possession of the Products and Services directly to the Customer or possession of the Products and Services is given to a carrier, courier, or other bailee for purposes of transmission to the Customer.
7.3 The time agreed for delivery shall not be an essential term of this contract.
8.1 Title in any Products and Services supplied by Ash Air passes to the Customer only when the Customer has made payment in full for all Products and Services provided by Ash Air and of all other sums due to Ash Air by the Customer on any account whatsoever. Until all sums due to Ash Air by the Customer have been paid in full, Ash Air has a security interest in all Products and Services.
8.2 If the Products and Services 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 Products and Services shall remain with Ash Air until the Customer has made payment for all Products and Services, and where those Products and Services are mixed with other property so as to be part of or a constituent of any new Products and Services, title to these new Products and Services shall deemed to be assigned to Ash Air as security for the full satisfaction by the Customer of the full amount owing between Ash Air and Customer.
8.3 The Customer gives irrevocable authority to Ash Air to enter any premises occupied by the Customer or on which Products and Services are situated at any reasonable time after default by the Customer or before default if Ash Air believes a default is likely and to remove and repossess any Products and Services and any other property to which Products and Services are attached or in which Products and Services are incorporated. Ash Air shall not be liable for any costs, damages, expenses or losses incurred by the Customer or any third party as a result of this action, nor liable in contract or in tort or otherwise in any way whatsoever unless by statute such liability cannot be excluded. Ash Air may either resell any repossessed Products and Services and credit the Customer’s account with the net proceeds of sale (after deduction of all repossession, storage, selling and other costs) or may retain any repossessed Products and Services and credit the Customer’s account with the invoice value thereof less such sum as Ash Air reasonably determines on account of wear and tear, depreciation, obsolescence, loss or profit and costs.
8.4 Where Products and Services are retained by Ash Air pursuant to clause 8.3 the Customer waives the right to receive notice under s.120 of the Personal Property Securities Act 1999 (“PPSA”) and to object under s.121 of the PPSA.
8.5 The following shall constitute defaults by the Customer:
8.5.1 Non payment of any sum by the due date.
8.5.2 The Customer intimates that it will not pay any sum by the due date.
8.5.3 Any Products and Services are seized by any other creditor of the Customer or any other creditor intimates that it intends to seize Products and Services.
8.5.4 Any Products and Services in the possession of the Customer are materially damaged while any sum due from the Customer to Ash Air remains unpaid.
8.5.5 The Customer is bankrupted or put into liquidation or a receiver is appointed to any of the Customer’s assets or a landlord distains against any of the Customer’s assets.
8.5.6 A Court judgment is entered against the Customer and remains unsatisfied for seven (7) days.
8.5.7 Any material adverse change in the financial position of the Customer.
8.6 If the Credit Repossession Act applies to any transaction between the Customer and Ash Air, the Customer has the rights provided in that Act despite anything contained in these terms and conditions of trade.
9.1 The Customer gives Ash Air a security interest in all of the Customer’s present and after-acquired Property that Ash Air has performed services on or to or in which Products or materials supplied or financed by Ash Air have been attached or incorporated.
10.1 Ash Air may in its discretion allocate any payment received from the Customer towards any invoice that Ash Air determines and may do so at the time of receipt or at any time afterwards and on default by the Customer may reallocate any payments previously received and allocated. In the absence of any payment allocation by Ash Air, payment shall be deemed to be allocated in such manner as preserves the maximum value of Ash Air’s purchase money security interest in the Products and Services.
11.1 The Customer agrees that Ash Air may exercise a general lien against any Products and Services or property belonging to the Customer that is in the possession of Ash Air for all sums outstanding under this contract and any other contract to which the Customer and Ash Air are parties.
11.2 If the lien is not satisfied within seven (7) days of the due date Ash Air may, having given notice of the lien at its option either:
11.2.1 Remove such Products and Services and store them in such a place and in such a manner as Ash Air shall think fit and proper and at the risk and expense of the Customer; or
11.2.2 Sell such Products and Services or part thereof upon such terms as it shall think fit and apply the proceeds in or towards discharge of the lien and costs of sale without being liable to any person for damage caused.
12.1 No claim relating to Products and Services will be considered unless made within seven (7) days of delivery.
13.1 The Consumer Guarantees Act 1993, the Fair Trading Act 1986 and other statutes may imply warranties or conditions or impose obligations upon Ash Air which cannot by law (or which can only to a limited extent by law) be excluded or modified. In respect of any such implied warranties, conditions or terms imposed on Ash Air, Ash Air’s liability shall, where it is allowed, be limited at the option of the company.
13.2 Except as otherwise provided by clause 13.1 Ash Airs Limitation of Liability is limited at the option of the company –
a. In the case of goods, to any one or more of the following:
1. the replacement of goods or the supply of equivalent goods.
2. The repair of the goods.
3. The payment of the cost of replacing the goods or of acquiring equivalent goods.
4. The payment of the cost of having the goods repaired, or
b. In the case of services
1. to suppling of the services again: or
2. to payment of the cost of having the services supplied again.
13.2.1 Except as provided in clause 13.2 the company shall not be liable to compensate the customer, its servants, agents or any third parties for Indirect or consequential loss whether suffered or incurred by the Customer or another person and whether in contract or tort (including negligence) or otherwise and irrespective of whether such loss or damage arises directly or indirectly from Products and Services provided by Ash Air to the Customer; and
13.2.2 The Customer shall indemnify Ash Air against all claims and loss 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 Ash Air or otherwise, brought by any person in connection with any matter, act, omission, or error by Ash Air its agents or employees in connection with the Products and Services.
13.2.3 Any minor variations in product specifications including but not limited to colour or design, which may occur from time to time.
13.3 If, contrary to the disclaimer of liability contained in these terms and conditions of trade Ash Air is deemed to be liable to the Customer, following and arising from the supply of Products and Services by it to the Customer, then it is agreed between Ash Air and the Customer that such liability is limited to the public liability insurance cover held by Ash Air.
14.1 Any plant supplied by Ash Air to the Customer, whether in consideration of rental or free of charge, shall remain the property of Ash Air and the Customer shall keep such plant fully insured in the name of Ash Air against all risks of every usual description and other such risks as Ash Air may require and shall not attempt to sell, assign, mortgage or borrow on such plant. The Customer shall also permit Ash Air (or its agents) at any time without notice to enter all premises at which Ash Air on reasonable grounds believe th e plant may be stored, to inspect, remove or repossess the plant supplied by Ash Air. Ash Air shall not be liable for costs, damages or expenses or any losses suffered by the Customer as a result of this action and the Customer shall also indemnify Ash Air against any liability against any third party suffered by Ash Air as a result of such actions.
15.1 Unless otherwise stated in Ash Air’s quotation to the Customer, second hand/used goods supplied by Ash Air are subject to a warranty period of 30 days from date of invoice and new goods supplied by Ash Air are subject to a warranty period of 90 days from date of invoice. Such warranty is limited to that specified by the manufacturer of the goods.
15.2 All warranties shall be deemed null and void if, in Ash Air’s opinion, the damage to the Goods has been caused by the Customer’s misuse or neglect or the Customer repairs, attempts to repair or cause to be repaired, the goods by any person other than those authorised or specified by Ash Air.
15.3 Service repair warranty is limited to the repair or replacement of faulty parts or workmanship supplied by Ash Air, for a period of 90 days from the date of completion of the particular work.
15.4 All warranty repairs and claims will be carried out during Ash Airs normal work hours. The supply of standby equipment, kilometres, travel time and consumable items are not covered by warranty.
16.1 Ash Air, owns and has copyright in all designs, specifications and work produced by Ash Air in connection with the Products and Services provided pursuant to this contract.
17.1 The guarantees contained in the Consumer Guarantees Act 1993 are excluded where the Customer acquires Products and Services from Ash Air for the purposes of a business in terms of section 2 and 43 of that Act.
18.1 Ash Air shall not be liable for delay or failure to perform its obligations if the cause of the delay or failure is beyond its control.
18.2 Failure by Ash Air 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 Ash Air has under this contract.
18.3 If any provision of this contract shall be invalid, void or illegal or unenforceable the validity existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.