TERMS OF TRADE:
1. Definitions
“Customer” means the person who orders or purchases Goods or Services from Utility Technology Limited, and where the Customer comprises two or more persons, means those persons jointly and severally.
“Goods” means any goods supplied by Utility Technology Limited.
“PPSA” means the Personal Property Securities Act 1999.
“Order” means an agreement between Utility Technology Limited and the Customer for Utility Technology Limited to supply Goods and/or Services to the Customer.
“Quote” means a written offer from Utility Technology Limited to the Customer to supply Goods and/or Services for a specified price subject to the terms and conditions of such offer.
“Services” means any services performed by Utility Technology Limited.
2. Orders, Pricing, Quotes and Estimates
2.1 Utility Technology Limited may decline, in whole or in part, any Order in its sole discretion.
2.2 The price of Goods and Services is as specified in Utility Technology Limited’s price list (as amended from time to time), or in an Order or accepted Quote, as applicable.
2.3 Unless otherwise stated, all prices are “plus GST” and are ex Utility Technology Limited’s store.
2.4 These Terms of Trade apply to all Goods or Services supplied by Utility Technology Limited including those supplied pursuant to a Quote. A Customer’s acceptance of a Quote constitutes an agreement to purchase Goods or Services on these Terms.
2.5 A Quote may be withdrawn or varied by Utility Technology Limited before it has been accepted in writing by the Customer.
2.6 All Quotes are based on rates and charges in effect at the date of the relevant Quote. Any increase in rates or charges, (including without limitation sub-contracted labour, materials and fuel) shall result in an equivalent increase in the quoted price.
2.7 An estimate as to price or quantity is not binding on Utility Technology Limited.
2.8 Where a Quote includes an estimate of quantities and the actual quantity supplied is materially different from that estimated, Utility Technology Limited reserves the right to revise the quoted price.
2.9 Quotes are prepared in accordance with information provided to Utility Technology Limited by the Customer and Utility Technology Limited will not be liable nor will it be bound by the Quote where: (a) such information is inaccurate or any information omitted; and/or (b) the Customer makes any variations which result in the work being different from that quoted for.
3. Payments
3.1 Except where Goods or Services are charged to a Trade Credit Account, payment is due on the placing of the Order.
3.2 Where Goods or Services are charged to a Trade Credit Account, payment shall be made strictly on the 20th of the month following the date of the invoice.
3.3 If any money due is not paid on or before the date for payment, the Customer shall pay by way of liquidated damages to Utility Technology Limited penalty interest on such payment and arrears at the rate of 2.5% per calendar month or part thereof computed from the payment date until the date when such payment together with all interest outstanding is paid in full.
3.4 If the Customer defaults in any payment, the customer shall in addition to the price and any penalty interest due, pay all costs (including solicitor and own client costs) and/or any collection commission incurred by Utility Technology Limited in collecting such payments and remedying the Customer’s default.
4. Risk
4.1 Risk in the Goods shall pass to the Customer on delivery of the Goods pursuant to clause 8.
4.2 Notwithstanding the passing of risk, property and ownership in the Goods shall only pass from Utility Technology Limited to the Customer upon full payment of the purchase price and any other money owing by the Customer to Utility Technology Limited and any penalty interest due.
4.3 Receipt by Utility Technology Limited of any cheque shall not be deemed to be payment until met or honoured upon presentation for payment.
4.4 Until Utility Technology Limited has been paid the purchase price and any other money owing by the Customer to Utility Technology Limited, the Customer is deemed to act as bailee for Utility Technology Limited in respect of the Goods and: (a) The Customer is deemed to hold the Goods, and the products of any manufacturer in which the Goods are used, as trustee on behalf of Utility Technology Limited; and (b) The provisions of clause 5.1 shall otherwise apply.
5. Security for Payment
5.1 The Customer grants to Utility Technology Limited a security interest in the Goods to secure the obligations of the Customer to pay the purchase price for the Goods, and any other obligations by the Customer to Utility Technology Limited under these Terms or the Terms of Trade Credit (together the "Obligations") as and when the same become due. The Customer acknowledges that these terms of trade constitute a “security agreement “ for the purposes of the Personal Properties Securities Act 1999 (“the PPSA”) and that Utility Technology Limited may register a financing statement in respect of the same
5.2 The Customer agrees that if the Customer is in breach of any of its Obligations:
(a) the Customer will, upon receiving a written request from Utility Technology Limited and at its own cost and expense, promptly deliver all or any of the Goods to Utility Technology Limited at such place as Utility Technology Limited directs;
(b) Utility Technology Limited may (and the Customer grants Utility Technology Limited a license to), at any time without giving notice either itself or through an authorized agent, enter into any place where the Goods are located and remove the Goods if the Customer fails to deliver the Goods as required under this clause;
(c) Utility Technology Limited may sell all or any of the Goods without giving prior notice of the sale to the Customer (and to that end, nothing in s114(1)(a) of the PPSA shall apply to these Terms); and
(d) If Utility Technology Limited proposes, pursuant to s120 of the PPSA to take all or any of the Goods in satisfaction of the Obligations, the Customer waives its right to require Utility Technology Limited to sell the Goods and agrees that notwithstanding s 120(1) of the PPSA, the Customer shall remain liable to Utility Technology Limited for the difference between the market value of the Goods at the time it is first able to be sold by Utility Technology Limited free from all rights and interests of the Customer and other persons pursuant to s123(1) of the PPSA and the amount of the Obligations which are in default.
5.3 The Customer:
(a) Agrees that nothing in s114(1)(a), 117(1)(c), 133 and 134 of the PPSA shall apply to these Terms and conditions. The customer also agrees that its rights as Debtor in s116, 119, 120(2), 121, 125, 126, 127, 129, 131, and 132 of the PPSA shall not apply to these terms and conditions and
(b) Waives (to the extent applicable) the Customer's right under the PPSA to receive a verification statement pursuant to s 148 and a statement of account under s 116 5.4 The Customer shall immediately notify Utility Technology Limited of any change in the Customer’s name, address or contact person details, to enable Utility Technology Limited to register a financing change statement if required. In the absence of such notification, the address held by Utility Technology Limited is deemed to be the Customer’s current address for such purpose.
6. Warranties and Limitations
6.1 Where Goods or Services are being supplied for the purposes of a business, the Customer agrees that the Consumer Guarantees Act 1993 will not apply and the items contained in any quote or order including these terms shall be the only terms and conditions of the contract and any other conditions and warranties, whether expressed or implied by law, trade, customer or otherwise are expressly excluded.
6.2 Where the Customer purchases Goods for re-supply, the Customer’s terms of trade must contain an equivalent provision to clause 6.1.
6.3 The Customer shall within seven days of delivery notify Utility Technology Limited of any alleged defect in any of the Goods. The Customer shall afford Utility Technology Limited an opportunity to inspect the Goods within a reasonable time following notice and before any use is made of them. If the Customer fails to comply with these provisions the Goods shall be conclusively presumed to be free from any defect or damage which would be apparent on a reasonable examination of the Goods and the Customer shall be deemed to have accepted the Goods.
6.4 The liability of Utility Technology Limited in respect of all claims for loss, damage or injury arising from breach of any of Utility Technology Limited’s obligations under this agreement or from any act or omission of Utility Technology Limited is limited, in each case, to the lesser of:
(a) replacement or repair of the affected Goods, or re-supply of the Services;
(b) payment of the actual cost of replacing or repairing the affected Goods, or re-supplying the Services; and
(c) the price of the affected Goods or Services.
6.5 Utility Technology Limited shall not be liable for any consequential, indirect or special damages (including without limitation loss of profits or savings or for any indirect or consequential loss or damage), however caused, arising out of or in connection with the supply of Goods or Services by Utility Technology Limited, except as set out above.
6.6 No action arising out of the supply of Goods or Services by Utility Technology Limited, regardless of form, may be brought more than seven days after the Customer becomes aware, or reasonably ought to have become aware, of the circumstances giving rise to the action.
7. Intellectual Property
7.1 All intellectual property rights in the Goods or arising out of the performance of the Services are and shall remain the property of Utility Technology Limited.
7.2 The Customer warrants that any design or drawing provided by it does not infringe any intellectual property rights of any other person.
8. Delivery
8.1 Delivery of Goods shall be deemed to occur at the point specified in an Order or Quote, or if nothing is so specified, then otherwise, when the Goods arrive at the address specified by the Customer (whether or not the Customer is present to acknowledge receipt), or when the Customer takes possession of the Goods, whichever occurs first.
8.2 Utility Technology Limited may deliver Goods by installments. If the Customer fails to pay for an installment on the due date Utility Technology Limited may suspend deliveries of the other installments.
8.3 The Customer shall pay all freight and cartage charges including any additional costs or expenses incurred by Utility Technology Limited in delivering the Goods to the address requested by the Customer (including charges for waiting time, unloading equipment, labour or delivery outside of normal business hours).
8.4 The Customer must make any claims for short delivery within 48 hours of delivery of Goods by Utility Technology Limited, and must state the date of delivery of the Goods and the delivery docket number.
9. Force Majeure
Utility Technology Limited shall not be liable to the Customer for any loss by the Customer caused by Utility Technology Limited’s failure to observe these conditions, or of any delay or failure to perform its obligations, if such failure or delay is occasioned by any cause beyond Utility Technology Limited’s reasonable control and, without limiting the generality of the foregoing, such causes include war, fires, floods, strikes, lock outs, power outages, delays in transport, breakdowns in machinery, severe weather conditions, unavailability of materials restrictions or prohibitions by any government or semi-government authorities or embargoes.
10. Miscellaneous
10.1 Utility Technology Limited’s failure or delay to exercise or enforce any right it has under these Terms shall not operate as a waiver of Utility Technology Limited’s right to exercise or enforce such right or any other right in the future.
10.2 Any provision of these Terms that is held to be invalid or unenforceable for any reason shall be severed from, and shall not affect the remaining provisions of, these Terms.
10.3 Utility Technology Limited may, in its sole discretion, amend these terms from time to time.
10.4 Where the Customer comprises more than one person carrying on business in partnership, each and every individual partner is and shall be jointly and severally liable to Utility Technology Limited in respect of all or any indebtedness or liability of the Customer which may arise.
10.5 Where the Customer is a limited liability company or other corporation, each of the officers thereof jointly and severally guarantees the due and punctual payment of all monies and performance of all obligations due by the Customer arising out of the contract.
