NZ Retail General Terms and Conditions of Sale - 2014
In these general terms and conditions of sale the following terms have the following meanings:
“Buyer” means the party accepting a Quotation or Purchasing Services or Equipment from S4SOLAR;
“Contract” means the legally binding contract between S4SOLAR and the Buyer pursuant to which S4SOLAR will supply the System on the terms set out in the Quotation and these general terms and conditions and for which the Buyer will pay for in accordance with the Quotation and these general terms and conditions;
“Deposit” means the non-refundable deposit specified in the Quotation payable by the Buyer to S4SOLAR immediately upon acceptance of the Quotation;
“Installed and commissioned” in respect of a System means when a certificate of compliance is received by S4SOLAR from a registered electrician or other qualified party in respect of the System;
“S4SOLAR” means S4SOLAR, or ETS Limited;
“Quotation” means a quote or tender provided by S4SOLAR to a Buyer in respect of a System, specifying the design, components and cost of supplying and installing the System at the location specified in the Quotation;
“System” means the S4SOLAR solar power system and any/all component parts as specified in the Quotation.
General Terms and Conditions
a) These general terms and conditions will apply to the sale of any System by S4SOLAR to a Buyer unless expressly varied in writing by both S4SOLAR and the Buyer;
b) Clerical errors in any Quotation are subject to correction.
c) Headings in these terms and conditions are descriptive only and are not to be taken as affecting the meaning of any clause herein.
d) S4SOLAR’s standard price lists which may be provided with a Quotation are subject to change without notice.
e) All goods, components and materials supplied and/or installed as part of a System remain the property of S4SOLAR until payment from the Buyer is received in full.
a) The acceptance of a Quotation by a Buyer will form a Contract between S4SOLAR and the Buyer.
b) Acceptance of a Quotation forming a Contract will include the acceptance by the Buyer of these general terms and conditions except insofar, or to the extent that, they are expressly varied in the Quotation.
c) A Quotation may be withdrawn or altered by S4SOLAR at its discretion at any time prior to acceptance by a Buyer.
3. Payment Terms
a) The Buyer will pay to S4SOLAR the Deposit in the amount specified in the Quotation immediately upon acceptance of the Quotation. If no Deposit amount is specified then the default deposit amount shall be 80% of the total Quotation.
b) Subject to clause 8 (Cancellation or Deferment of Orders), the Buyer will be entitled to cancel the Contract and be entitled to a refund of the Deposit, less any fees incurred by S4SOLAR which are directly in relation to the Contract, if:
i. The relevant local council with jurisdiction over the installation of the System rejects the application for installation of the System; or
ii. The relevant local lines company to whose network the System will be connected rejects the application for installation the System.
c) Payment of the price of the System as specified in the Contract (less the amount of any non-refundable Deposit paid) will be paid by the Buyer to S4SOLAR within 5 working days of the date the System is successfully installed and commissioned.
d) In the event of payment in full not being received by the due date, S4SOLAR reserves the right to charge interest on any amount outstanding calculated at 5% per month or part thereof until such time as payment is received in full.
e) If payment in full (including any interest charged), is not received within 10 business days of the date contemplated in clause 3(c), Ownership of the system will revert to S4SOLAR until such time that full payment is made. S4SOLAR reserves the right to remove the System and all components.
f) Any reasonable expenses, costs or disbursements incurred by S4SOLAR in recovering any outstanding monies including debt collection agency fees or legal fees, will be recoverable from the Buyer on a full indemnity basis.
4. Delivery & Time for Delivery
a) Risk in the System (or part thereof) will pass to the Buyer on physical delivery of the System (or part thereof) to the Buyer’s address, but for the avoidance of doubt being prior to installation and commissioning.
b) Any times quoted for delivery, installation and/or commissioning are to be treated as estimate only and will not create any contractual obligation on the part of S4SOLAR to deliver, install and/or commission by those dates (if any) specified.
5. Force Majeure
a) S4SOLAR will not be liable either directly or indirectly, for any act, omission or failure to perform the Contract if such act, omission or failure raised from any cause reasonably beyond its control including but not limited to war, hostilities, invasion, insurrection, riot, the order of any competent, civil or military government, or by fire, strikes, lock outs, labour disputes, lack of suitable transportation and/or port or loading and unloading facilities, shortage of raw materials, late arrival of supplies or by any other cause whether or not of a similar nature. If the situation persists for a period of thirty (30) days, either party may by notice in writing to the other terminate the Contract.
b) If S4SOLAR incurs any additional costs after Quotation by reason of the occurrence of any of the above mentioned causes or events but the Contract is not avoided thereby, then such additional costs will be for S4SOLAR’s account. In turn, if the Buyer incurs any additional costs after acceptance of the Quotation by reason of the occurrence of any of the above mentioned causes or events but the Contract is not avoided thereby, then such additional costs will be for the Buyer’s account
6. Privacy Act
a) S4SOLAR will be entitled to request information from a third party relating to the creditworthiness of the Buyer. S4SOLAR may not furnish this information to any third person without prior authority from the Buyer. Incorporation of these terms and conditions in the Contract is deemed to constitute written consent from the Buyer for S4SOLAR to request such information.
7. Warranty and Liability Limitation
a) Subject to clause 7(b), S4SOLAR’s liability in respect of any defect in or failure of the System supplied is limited to making good any defects which under proper use of the System appear within a 5 year period from the date of the System is installed and commissioned.
b) S4SOLAR will not be liable for any defect in any goods and/or components in the System which are supplied and/or manufactured by a third party. Instead, the Buyer will only be entitled to such rights as S4SOLAR receives under any warranty given by the supplier and/or manufacturer in respect of such goods and/or components (or any part thereof).
c) Any System performance figures, characteristics or specifications included in a Quotation are based on experience and the specifications published by the manufacturer of the solar PV panels and inverters supplied as part of the System and as such are expected to be obtained on test. No liability is accepted by S4SOLAR if these figures are not obtained, unless they are not obtained because of specific component failure which is covered in clauses 7(a) or (b) above.
d) No other conditions, representations, guarantees or warranties are given or implied unless specifically stated in the Quotation. If there is any conflict between the description of System in a Quotation and any samples shown to the Buyer, the description in the Quotation applies and S4SOLAR will be deemed to have fulfilled its obligations if the System matches the description in the Quotation.
e) S4SOLAR’s liability arising out of any service or product provided will be limited to the lesser of $10,000 New Zealand Dollars, or to the total cost to the Buyer, of the service or product provided. Liabilities limited by the preceding sentence include, without limitations, liability for negligence.
f) S4SOLAR will not be deemed responsible for any consequential or other indirect damages whatsoever including personal injury or property damages except to the extent, if any, that cannot by law be contracted out of. In particular (but without limitation) S4SOLAR hereby contracts out of any liability imposed under the Consumer Guarantees Act 1993 to the maximum extent permitted by section 43 of that Act.
g) In cases where S4SOLAR is the installer of the System, it will only be liable for direct loss or damage caused by incorrect installation, erection or fixing. Notwithstanding the foregoing, provided S4SOLAR takes reasonable care in installing the System, S4SOLAR will not be liable for any direct loss or damage caused to any part of the building on which the System is being installed, which includes without limitation cracked roof tiles, dented roofs, and cracked internal plaster resulting from the system installation.
h) If, notwithstanding sub-clause (f) hereof, S4SOLAR is found to be liable for any loss or damage incurred by or caused to the Buyer, S4SOLAR’s liability in respect of such claims arising will be limited to a maximum of $10,000 New Zealand Dollars for all claims in relation to a System.
8. Cancellation or Deferment of Orders
a) The Buyer can withdraw their acceptance of a Quotation which gives rise to a Contract by giving written notice to S4SOLAR, which must be received by S4SOLAR before the System is scheduled to be installed. If the Buyer withdraws from a Contract S4SOLAR retains the right to deduct from the Deposit any expenses reasonably incurred in the preparation of the System related to the Contract.
b) Once installation of a System has been scheduled by S4SOLAR and the installation date accepted by the Buyer, a Contract relating to that System can only be cancelled or deferred with S4SOLAR’s written consent.
9. Installation & Suspension of Work
a) If the installation of a System is suspended in accordance with clause 8(a), , the contract price may be increased by S4SOLAR to cover any extra expense reasonably incurred by S4SOLAR to accommodate the delay in installation. S4SOLAR will use every reasonable effort to provide prior notice to the Buyer of any extra expense that may be incurred as result of above the suspension or delay of installation. S4SOLAR will use its reasonable endeavours to minimize any additional expenses.
b) Where installation by S4SOLAR is included in the Quotation, such installation will be limited to:
i) mounting of solar panels;
ii) mounting of the inverter;
iii) mounting of the AC and DC disconnect switches;
iv) all wiring and connections necessary to connected the System to the export electricity meter.
c) The Buyer will be responsible for, at the Buyer’s cost, site preparation necessary for installation or testing of the System. The Buyer will notify S4SOLAR in writing when the site is ready for installation. The Buyer will allow proper access to the site for installation or testing during normal working hours. “Proper access” includes 1) access to and parking at the site for delivery of goods,
materials and equipment; 2) access to all buildings and structures in which goods are to be installed, in a state and condition ready for installation; and 3) access to a source of electrical power. Any expenses caused through the Buyer’s failure to comply with this clause shall be for the Buyer’s account.
d) Any additional electricity costs incurred by the Buyer from the date the Buyer switches electricity providers to one who will support the grid connection of the System to the date the System is installed and commissioned will be the sole responsibility of the Buyer.
10. Goods and Services Tax
a) Goods and Services Tax is included in the contract price set out in the Quotation, unless otherwise stated.
11. Property and Security Interests
a) Full property (being both legal title and equitable ownership) in the System supplied by S4SOLAR remains with S4SOLAR until it has received full payment of the price for the System. For as long as any amount due and payable by the Buyer to S4SOLAR remains unpaid on the System, the Buyer irrevocably authorises S4SOLAR and its servants and agents to enter into any premises controlled by the Buyer, to search for the property (or parts thereof) and to remove that property (if necessary, after separating them from any item into which they have been incorporated).
b) The buyer is responsible for the protection and insurance of the product, upon acceptance of the terms and conditions. Therefore, any damage caused to the product following the acceptance of the terms and conditions is the sole responsibility of the Buyer.
c) The Buyer acknowledges that these Terms and Conditions of Trade create a security interest in all present and after acquired goods supplied or to be supplied by S4SOLAR and any proceeds of the sale of the goods as security for all of the Buyer’s obligations to S4SOLAR pursuant to the Personal Property Securities Act 1999 (‘the PPSA’) and that S4SOLAR may register a financing statement to perfect its security interest in the System delivered or to be delivered to the Buyer in accordance with the provisions of the PPSA.
d) The Buyer will provide all information, execute or arrange for execution of all documents and do all other things that S4SOLAR may reasonably require to ensure that S4SOLAR has a perfected first ranking security interest in the goods under the PPSA.
e) The Buyer waives its rights to receive a verification statement in respect of any financing statement or financing change statement registered by or on behalf of S4SOLAR under the PPSA and agrees that as between S4SOLAR and the Buyer, the Buyer 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 S4SOLAR has rights in addition to those in part 9 of the PPSA those rights shall continue to apply.
f) As soon as reasonably practicable following a request from S4SOLAR, the Buyer will use its reasonable endeavours to provide to S4SOLAR any agreements or waivers which are reasonably necessary to enable S4SOLAR to register its security position pursuant to clause 13(b) above.
g) The Buyer shall immediately notify S4SOLAR of any change in the Buyer’s name, address details and any other information provided to S4SOLAR to enable S4SOLAR to register a financing change statement if required.
12. Governing Law
a) The contract between S4SOLAR and the Buyer is governed by New Zealand law. The provisions of the United Nations Convention on Contracts for the International Sale of Goods do not apply.
b) Any and All Legal disputed shall be heard in a New Zealand court of Law or within the country of New Zealand.