1. Definitions

1.1 "AAL" means Able Appliances Ltd, its successors and assigns or any person acting on behalf of and with the authority of Able Appliances Ltd.

1.2 "Customer" means the person/s buying the Goods as specified in any invoice, document or order, and if there is more than one Customer is a reference to each Customer jointly and severally.

1.3 "Goods" means all Goods or Services supplied by AAL to the Customer at the Customer's request from time to time (where the context so permits the terms 'Goods' or 'Services' shall be interchangeable for the other).

1.4 "Price" means the Price payable for the Goods as agreed between AAL and the Customer in accordance with clause 5 below.

2. Acceptance

2.1 The Customer is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Customer places an order for or accepts Delivery of the Goods.

2.2 These terms and conditions may only be amended with AAL's consent in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the Customer and AAL.

2.3 These general terms and conditions are meant to be read in conjunction with the applicable terms and conditions for hire services. If there are any inconsistencies between the relevant documentation, then the terms and conditions contained therein shall prevail.

2.4 The Customer acknowledges and accepts that the supply of Goods for accepted orders may be subject to availability and if, for any reason, Goods are not or cease to be available, AAL reserves the right to vary the Price with alternative Goods as per clause 5.2.

2.5 All literature, samples, specifications, submitted with the quotation is expressly illustrative and is by way of a general description of Goods only in accordance with industry standards. Any descriptions contained in catalogues and other advertising material while being as accurate as possible but may not necessarily be identical with products and Services AAL is to supply. AAL will not accept liability to the Customer for quality of Goods which comply with accepted industry standards.

3. Electronic Transactions Act 2002

3.1 Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 22 of the Electronic Transactions Act 2002 or any other applicable provisions of that Act or any Regulations referred to in that Act.

4. Change in Control

4.1 The Customer shall give AAL not less than fourteen (14) days prior written notice of any proposed change of ownership of the Customer and/or any other change in the Customer's details (including but not limited to, changes in the Customer's name, address, contact phone or fax number/s, or business practice). The Customer shall be liable for any loss incurred by AAL as a result of the Customer's failure to comply with this clause.

5. Price and Payment

5.1 At AAL's sole discretion the Price shall be either:
(a) as indicated on any invoice provided by AAL to the Customer; or
(b) the Price as at the date of Delivery of the Goods according to AAL's current price list; or
(c) AAL's quoted price (subject to clause 5.2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.

5.2 AAL reserves the right to change the Price if a variation to AAL's quotation is requested. Any variation from the plan of scheduled Services or specifications (including, but not limited to, any variation as a result of availability of stock, limitations to accessing the Delivery site, overseas transactions that may increase as a consequence of variations in foreign currency rates of exchange and/or international freight and insurance charges or increases to AAL in the cost of materials and labour) will be charged for on the basis of AAL's quotation and will be shown as variations on the invoice. Payment for all variations must be made in full at their time of completion.

5.3 At AAL's sole discretion a non-refundable deposit may be required.

5.4 Time for payment for the Goods being of the essence, the Price will be payable by the Customer on the date/s determined by AAL, which may be:
(a) on Delivery of the Goods;
(b) before Delivery of the Goods;
(c) for certain approved Customers, by way of instalments/progress payments in accordance with AAL's payment schedule;
(d) for certain approved Customers, due twenty (20) days following the end of the month in which a statement is posted to the Customer's address or address for notices;
(e) the date specified on any invoice or other form as being the date for payment; or
(f) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Customer by AAL.

5.5 Payment may be made by cash, cheque, bank cheque, electronic/on-line banking, credit card (plus a surcharge of up to three percent (3%) of the Price), or by any other method as agreed to between the Customer and AAL.

5.6 Unless otherwise stated the Price does not include GST. In addition to the Price the Customer must pay to AAL an amount equal to any GST AAL must pay for any supply by AAL under this or any other agreement for the sale of the Goods. The Customer must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Customer pays the Price. In addition the Customer must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.

6. Delivery of Goods

6.1 Delivery ("Delivery") of the Goods is taken to occur at the time that:
(a) the Customer or the Customer's nominated carrier takes possession of the Goods at AAL's address; or
(b) AAL (or AAL's nominated carrier) delivers the Goods to the Customer's nominated address even if the Customer is not present at the address.

6.2 At AAL's sole discretion the cost of Delivery is in addition to the Price

6.3 The Customer must take Delivery by receipt or collection of the Goods whenever they are tendered for Delivery. In the event that the Customer is unable to take Delivery of the Goods as arranged then AAL shall be entitled to charge a reasonable fee for redelivery.

6.4 AAL may deliver the Goods in separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.

6.5 Any time or date given by AAL to the Customer is an estimate only. The Customer must still accept Delivery of the Goods even if late and AAL will not be liable for any loss or damage incurred by the Customer as a result of the Delivery being late.

7. Risk

7.1 Risk of damage to or loss of the Goods passes to the Customer on Delivery and the Customer must insure the Goods on or before Delivery.

7.2If any of the Goods are damaged or destroyed following Delivery but prior to ownership passing to the Customer, AAL is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by AAL is sufficient evidence of AAL's rights to receive the insurance proceeds without the need for any person dealing with AAL to make further enquiries.

7.3 If the Customer requests AAL to leave Goods outside AAL's premises for collection or to deliver the Goods to an unattended location then such Goods shall be left at the Customer's sole risk.

7.4Where AAL is required to install the Goods the Customer warrants that the structure of the premises or equipment in or upon which these Goods are to be installed or erected is sound and will sustain the installation and work incidental thereto and AAL shall not be liable for any claims, demands, losses, damages, costs and expenses howsoever caused or arising should the premises or equipment be unable to accommodate the installation (including but not limited to insufficient or defective foundations, walls or other structures not erected by AAL).

7.5 In the event the Customer gives information relating to measurements and quantities of the Goods required to complete the services, it is the Customer’s responsibility to verify the accuracy of the measurements and quantities, before the Customer or AAL places an order based on these measurements and quantities. AAL accepts no responsibility for any loss, damages, or costs however resulting from the Customer’s failure to comply with this clause.

7.6 Any advice, recommendation, information, assistance or service provided by AAL in relation to Goods or Services supplied is given in good faith and shall be accepted without liability on the part of AAL and it shall be the responsibility of the Customer to confirm the accuracy and reliability of the same in light of the use to which the Customer makes or intends to make of the Goods or Services.

8. Access

8.1 The Customer shall ensure that AAL has clear and free access to the work site at all times to enable them to undertake the Services. AAL shall not be liable for any loss or damage to the site (including, without limitation, damage to pathways, driveways and concreted or paved or grassed areas) unless due to the negligence of AAL.

9. Title

9.1 AAL and the Customer agree that ownership of the Goods shall not pass until:
(a) the Customer has paid AAL all amounts owing to AAL; and
(b) the Customer has met all of its other obligations to AAL.

9.2 Receipt by AAL of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised.

9.3 It is further agreed that:
(a) until ownership of the Goods passes to the Customer in accordance with clause 8.1 that the Customer is only a bailee of the Goods and must return the Goods to AAL on request.
(b) the Customer holds the benefit of the Customer's insurance of the Goods on trust for AAL and must pay to AAL the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed.
(c) the Customer must not sell, dispose, or otherwise part with possession of the Goods other than in the ordinary course of business and for market value. If the Customer sells, disposes or parts with possession of the Goods then the Customer must hold the proceeds of any such act on trust for AAL and must pay or deliver the proceeds to AAL on demand.
(d) the Customer should not convert or process the Goods or intermix them with other goods but if the Customer does so then the Customer holds the resulting product on trust for the benefit of AAL and must sell, dispose of or return the resulting product to AAL as it so directs.
(e) the Customer irrevocably authorises AAL to enter any premises where AAL believes the Goods are kept and recover possession of the Goods.
(f) AAL may recover possession of any Goods in transit whether or not Delivery has occurred.
(g) the Customer shall not charge or grant an encumbrance over the Goods nor grant nor otherwise give away any interest in the Goods while they remain the property of AAL.
(h) AAL may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Customer.

10. Personal Property Securities Act 1999 ("PPSA")

10.1 Upon assenting to these terms and conditions in writing the Customer acknowledges and agrees that:
(a) these terms and conditions constitute a security agreement for the purposes of the PPSA; and
(b) a security interest is taken in all Goods and/or collateral (account) – being a monetary obligation of the Customer to AAL for Services – that have previously been supplied and that will be supplied in the future by AAL to the Customer.

10.2 The Customer undertakes to:
(a) sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which AAL may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register;
(b) indemnify, and upon demand reimburse, AAL for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register or releasing any Goods charged thereby;
(c) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods and/or collateral (account) in favour of a third party without the prior written consent of AAL; and
(d) immediately advise AAL of any material change in its business practices of selling the Goods which would result in a change in the nature of proceeds derived from such sales.

10.3 AAL and the Customer agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms and conditions.

10.4 The Customer waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA.

10.5 Unless otherwise agreed to in writing by AAL, the Customer waives its right to receive a verification statement in accordance with section 148 of the PPSA.

10.6 The Customer shall unconditionally ratify any actions taken by AAL under clauses 9.1 to 9.5.

11. Security and Charge

11.1 In consideration of AAL agreeing to supply the Goods, the Customer charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Customer either now or in the future, to secure the performance by the Customer of its obligations under these terms and conditions (including, but not limited to, the payment of any money).

11.2The Customer indemnifies AAL from and against all AAL's costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising AAL's rights under this clause.

11.3 The Customer irrevocably appoints AAL and each director of AAL as the Customer's true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 10 including, but not limited to, signing any document on the Customer's behalf.

12. Customer's Disclaimer

12.1 The Customer hereby disclaims any right to rescind, or cancel any contract with AAL or to sue for damages or to claim restitution arising out of any inadvertent misrepresentation made to the Customer by AAL and the Customer acknowledges that the Goods are bought relying solely upon the Customer's skill and judgment.

13. Defects

13.1 The Customer shall inspect the Goods on Delivery and shall within seven (7) days of Delivery (time being of the essence) notify AAL of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Customer shall afford AAL an opportunity to inspect the Goods within a reasonable time following Delivery if the Customer believes the Goods are defective in any way. If the Customer shall fail to comply with these provisions the Goods shall be presumed to be free from any defect or damage. For defective Goods, which AAL has agreed in writing that the Customer is entitled to reject, AAL's liability is limited to either (at AAL's discretion) replacing the Goods or repairing the Goods.

14. Returns

14.1Returns will only be accepted provided that:
(a) the Customer has complied with the provisions of clause 12.1; and
(b) AAL has agreed in writing to accept the return of the Goods; and
(c) the Goods are returned at the Customer's cost within seven (7) days of the Delivery date; and
(d) AAL will not be liable for Goods which have not been stored or used in a proper manner; and
(e) the Goods are returned in the condition in which they were delivered and with all packaging material, brochures and instruction material in as new condition as is reasonably possible in the circumstances.

14.2 AAL may (in its discretion) accept the return of Goods for credit but this may incur a handling fee of ten percent (10%) of the value of the returned Goods plus any freight.

14.3 Non-stocklist items or Goods made to the Customer's specifications are under no circumstances acceptable for credit or return.

15. Warranty

15.1 Subject to the conditions of warranty set out in clause 14.2 AAL warrants that if any defect in any workmanship of AAL becomes apparent and is reported to AAL within ninety (90) days of the date of Delivery (time being of the essence) then AAL will either (at AAL's sole discretion) replace or remedy the workmanship.

15.2 The conditions applicable to the warranty given by clause 14.1 are:
(a) the warranty shall not cover any defect or damage which may be caused or partly caused by or arise through:
(i) failure on the part of the Customer to properly maintain any Goods; or
(ii) failure on the part of the Customer to follow any instructions or guidelines provided by AAL; or
(iii) any use of any Goods otherwise than for any application specified on a quote or order form; or
(iv) the continued use of any Goods after any defect becomes apparent or would have become apparent to a reasonably prudent operator or user; or
(v) fair wear and tear, any accident or act of God.
(b) the warranty shall cease and AAL shall thereafter in no circumstances be liable under the terms of the warranty if the workmanship is repaired, altered or overhauled without AAL's consent.
(c) in respect of all claims AAL shall not be liable to compensate the Customer for any delay in either replacing or remedying the workmanship or in properly assessing the Customer's claim.

15.3 For Goods not manufactured by AAL, the warranty shall be the current warranty provided by the manufacturer of the Goods. AAL shall not be bound by nor be responsible for any term, condition, representation or warranty other than that which is given by the manufacturer of the Goods.

15.4 The conditions applicable to the warranty given on Goods supplied by AAL are contained on the "Warranty Card" that will be supplied with the Goods.

15.5 In the case of second hand Goods, the Customer acknowledges that he has had full opportunity to inspect the same and that he accepts the same with all faults and that no warranty is given by AAL as to the quality or suitability for any purpose and any implied warranty, statutory or otherwise, is expressly excluded. AAL shall not be responsible for any loss or damage to the Goods, or caused by the Goods, or any part thereof however arising.

16. Consumer Guarantees Act 1993

16.1 If the Customer is acquiring Goods for the purposes of a trade or business, the Customer acknowledges that the provisions of the Consumer Guarantees Act 1993 do not apply to the supply of Goods by AAL to the Customer.

17. Intellectual Property

17.1 Where AAL has designed, drawn or developed Goods for the Customer, then the copyright in any designs and drawings and documents shall remain the property of AAL.

17.2 The Customer warrants that all designs, specifications or instructions given to AAL will not cause AAL to infringe any patent, registered design or trademark in the execution of the Customer's order and the Customer agrees to indemnify AAL against any action taken by a third party against AAL in respect of any such infringement.

17.3 The Customer agrees that AAL may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings or Goods which AAL has created for the Customer.

18. Default and Consequences of Default

18.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at AAL's sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.

18.2 If the Customer owes AAL any money the Customer shall indemnify AAL from and against all costs and disbursements incurred by AAL in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, AAL's collection agency costs, and bank dishonour fees).

18.3 Further to any other rights or remedies AAL may have under this contract, if a Customer has made payment to AAL by credit card, and the transaction is subsequently reversed, the Customer shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by AAL under this clause 17 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Customer's obligations under this agreement.

18.4 Without prejudice to any other remedies AAL may have, if at any time the Customer is in breach of any obligation (including those relating to payment) under these terms and conditions AAL may suspend or terminate the supply of Goods to the Customer. AAL will not be liable to the Customer for any loss or damage the Customer suffers because AAL has exercised its rights under this clause.

18.5 Without prejudice to AAL's other remedies at law AAL shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to AAL shall, whether or not due for payment, become immediately payable if:
(a) any money payable to AAL becomes overdue, or in AAL's opinion the Customer will be unable to make a payment when it falls due;
(b) the Customer becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer.

19. Cancellation

19.1 AAL may cancel any contract to which these terms and conditions apply or cancel Delivery of Goods at any time before the Goods are delivered by giving written notice to the Customer. On giving such notice AAL shall repay to the Customer any money paid by the Customer for the Goods. AAL shall not be liable for any loss or damage whatsoever arising from such cancellation.

19.2 In the event that the Customer cancels Delivery of Goods the Customer shall be liable for any and all loss incurred (whether direct or indirect) by AAL as a direct result of the cancellation (including, but not limited to, any loss of profits).

19.3 Cancellation of orders for Goods made to the Customer's specifications, or for non-stocklist items, will definitely not be accepted once production has commenced, or an order has been placed.

20. Privacy Act 1993

20.1 The Customer authorises AAL or AAL’s agent to:
(a) access, collect, retain and use any information about the Customer;
(i) (including any overdue fines balance information held by the Ministry of Justice) for the purpose of assessing the Customer's creditworthiness; or
(ii) for the purpose of marketing products and services to the Customer.
(b) disclose information about the Customer, whether collected by AAL from the Customer directly or obtained by AAL from any other source, to any other credit provider or any credit reporting agency for the purposes of providing or obtaining a credit reference, debt collection or notifying a default by the Customer.

20.2 Where the Customer is an individual the authorities under clause 19.1 are authorities or consents for the purposes of the Privacy Act 1993.

20.3 The Customer shall have the right to request AAL for a copy of the information about the Customer retained by AAL and the right to request AAL to correct any incorrect information about the Customer held by AAL.

21. Unpaid Seller's Rights

21.1 Where the Customer has left any item with AAL for repair, modification, exchange or for AAL to perform any other service in relation to the item and AAL has not received or been tendered the whole of any moneys owing to it by the Customer, AAL shall have, until all moneys owing to AAL are paid:
(a) a lien on the item; and
(b) the right to retain or sell the item, such sale to be undertaken in accordance with any legislation applicable to the sale or disposal of uncollected goods.

21.2 The lien of AAL shall continue despite the commencement of proceedings, or judgment for any moneys owing to AAL having been obtained against the Customer.

22. General

22.1 The failure by AAL to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect AAL's right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.

22.2 These terms and conditions and any contract to which they apply shall be governed by the laws of New Zealand and are subject to the jurisdiction of the courts of New Zealand.

22.3 AAL shall be under no liability whatsoever to the Customer for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by AAL of these terms and conditions (alternatively AAL's liability shall be limited to damages which under no circumstances shall exceed the Price of the Goods).

22.4 The Customer shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Customer by AAL nor to withhold payment of any invoice because part of that invoice is in dispute.

22.5 AAL may license or sub-contract all or any part of its rights and obligations without the Customer's consent.

22.6 The Customer agrees that AAL may amend these terms and conditions at any time. If AAL makes a change to these terms and conditions, then that change will take effect from the date on which AAL notifies the Customer of such change. The Customer will be taken to have accepted such changes if the Customer makes a further request for AAL to provide Goods to the Customer.

22.7 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.

22.8 The Customer warrants that it has the power to enter into this agreement and has obtained all necessary authorisations to allow it to do so, it is not insolvent and that this agreement creates binding and valid legal obligations on it

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