Terms & Conditions
1.1 "Realcold" shall mean Realcold Ltd 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 Realcold.
1.3 "Goods" shall mean:
1.3.1 all Goods of the general description specified on the front of this agreement and supplied by Realcold to the Customer; and
1.3.2 all Goods supplied by Realcold to the Customer; and
1.3.3 all inventory of the Customer that is supplied by Realcold; and
1.3.4 all Goods supplied by Realcold and further identified in any invoice issued by Realcold to the Customer, which invoices are deemed to be incorporated into and form part of this agreement; and
1.3.5 all Goods that are marked as having been supplied by Realcold or that are stored by the Customer in a manner that enables them to be identified as having been supplied by Realcold; and
1.3.6 all of the Customer's present and after-acquired Goods that Realcold has performed work on or to or in which goods or materials supplied or financed by Realcold 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 "Goods and Services" shall also mean all goods, products, services and advice provided by Realcold to the Customer and shall include without limitation the design, manufacture, development, sale, installation, repair and maintenance of industrial refrigeration equipment and the supply of componentry and parts and all charges for labour, hire charges, insurance charges, or any fee or charge associated with the supply of Goods and Services by Realcold to the Customer.
1.5 "Price" shall mean the cost of the Goods and Services as agreed between Realcold and the Customer and includes all disbursements eg charges Realcold pay to others on the Customer's behalf subject to clause 4 of this contract.
2.1 Any instructions received by Realcold from the Customer for the supply of Goods and Services shall constitute a binding contract and acceptance of the terms and conditions contained herein.
3. COLLECTION AND USE OF INFORMATION
3.1 The Customer authorises Realcold 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 Goods and Services provided by Realcold to any other party.
3.2 The Customer authorises Realcold to disclose any information obtained to any person for the purposes set out in clause 3.1.
3.3 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 Goods and Services shall be deemed to be sold at the current amount as such Goods and Services are sold by Realcold 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 Goods and Services that is beyond the control of Realcold between the date of the contract and delivery of the Goods and Services.
5.1 Payment for Goods 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"). Progress payments apply to large contracts.
5.2 The Company may charge interest on any money's outstanding under this contract at a rate equal to 5% above the bank indicator lending rate of the Company. Interest is payable from the date the payment was due until the date the Company receives payment.
5.3 Any expenses, disbursements and legal costs incurred by Realcold 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 Realcold for Goods and Services:
6.1.1 Unless otherwise agreed the quotation shall be valid for thirty (30) days from the date of issue; and
6.1.2 The quotation shall be exclusive of goods and services tax unless specifically stated to the contrary;
6.1.3 Realcold reserve the right to alter the quotation because of circumstances beyond its control.
6.2 Where Goods and Services are required in addition to the quotation the Customer agrees to pay for the additional cost of such Goods and Services.
7.1 The Goods and Services remain at Realcold's risk until delivery to the Customer.
7.2 Delivery of Goods and Services shall be deemed complete when Realcold gives possession of the Goods and Services directly to the Customer or possession of the Goods and Services is given to a carrier, courier, or other bailee for purposes of transmission to the Customer.
8. TITLE AND SECURITY (PERSONAL PROPERTY SECURITIES ACT 1999)
8.1 Title in any Goods and Services supplied by Realcold passes to the Customer only when the Customer has made payment in full for all Goods and Services provided by Realcold and of all other sums due to Realcold by the Customer on any account whatsoever. Until all sums due to Realcold by the Customer have been paid in full, Realcold has a security interest in all Goods and Services.
8.2 If the Goods 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 Goods and Services shall remain with Realcold until the Customer has made payment for all Goods and Services, and where those Goods and Services are mixed with other property so as to be part of or a constituent of any new Goods and Services, title to these new Goods and Services shall deemed to be assigned to Realcold as security for the full satisfaction by the Customer of the full amount owing between Realcold and Customer.
8.3 The Customer gives irrevocable authority to Realcold to enter any premises occupied by the Customer or on which Goods and Services are situated at any reasonable time after default by the Customer or before default if Realcold believes a default is likely and to remove and repossess any Goods and Services and any other property to which Goods and Services are attached or in which Goods and Services are incorporated. Realcold 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. Realcold may either resell any repossessed Goods 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 Goods and Services and credit the Customer's account with the invoice value thereof less such sum as Realcold reasonably determines on account of wear and tear, depreciation, obsolescence, loss or profit and costs.
8.4 Where Goods and Services are retained by Realcold 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 Company may register a Financing Statement over the Goods and the customer shall agree to waive the right to a verification statement for purposes of s.148 of the PPSA.
8.6 The following shall constitute defaults by the Customer:
8.6.1 Non payment of any sum by the due date.
8.6.2 The Customer intimates that it will not pay any sum by the due date.
8.6.3 Any Goods and Services are seized by any other creditor of the Customer or any other creditor intimates that it intends to seize Goods and Services.
8.6.4 Any Goods and Services in the possession of the Customer are materially damaged while any sum due from the Customer to Realcold remains unpaid.
8.6.5 The Customer is bankrupted or put into liquidation or a receiver is appointed to any of the Customer's assets or a landlord distrains against any of the Customer's assets.
8.6.6 A Court judgment is entered against the Customer and remains unsatisfied for seven (7) days.
8.6.7 Any material adverse change in the financial position of the Customer.
9. SECURITY INTEREST FOR SERVICE PROVIDERS
9.1 The Customer gives Realcold a security interest in all of the Customer's present and after-acquired property that Realcold has performed services on or to or in which goods or materials supplied or financed by Realcold have been attached or incorporated.
10. PAYMENT ALLOCATION
10.1 Realcold may in its discretion allocate any payment received from the Customer towards any invoice that Realcold 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 Realcold, payment shall be deemed to be allocated in such manner as preserves the maximum value of Realcold's purchase money security interest in the Goods and Services.
11. GENERAL LIEN
11.1 The Customer agrees that Realcold may exercise a general lien against any Goods and Services or property belonging to the Customer that is in the possession of Realcold for all sums outstanding under this contract and any other contract to which the Customer and Realcold are parties.
11.2 If the lien is not satisfied within seven (7) days of the due date Realcold may, having given notice of the lien at its option either:
11.2.1 Remove such Goods and Services and store them in such a place and in such a manner as Realcold shall think fit and proper and at the risk and expense of the Customer; or
11.2.2 Sell such Goods 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. RETURN OF GOODS
12.1 Realcold will give credit for stock items returned within 14 days of purchase provided the following criteria is met:
12.1.1 Prior approval is given by an authorised Realcold representative.
12.1.2 Proof of purchase is provided via an invoice, receipt or bank/card statement.
12.1.3 It is a standard Realcold stocked item, not custom made or acquired for the Customer.
12.1.4 Item is unused and returned in original condition with undamaged packaging.
12.1.5 For gas cylinders, no product has been removed or added, no contamination has occurred, and shrink wrapping on valve is intact and not tampered with.
12.2 Any costs incurred returning goods is at the Customer's expense, and a restocking fee of 15% of the gross value of returned items will be charged.
12.3 This does not apply to returned goods that are faulty, defective, unsafe, do not match sample or description, do not do what Realcold said it would or what the customer asked for, or incorrectly supplied.
13.1 The Consumer Guarantees Act 1993, the Sale of Goods Act 1908, the Fair Trading Act 1986 and other statutes may imply warranties or conditions or impose obligations upon Realcold 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 Realcold, Realcold's liability shall, where it is allowed, be excluded or if not able to be excluded only apply to the minimum extent required by the relevant statute.
13.2 Except as otherwise provided by clause 13.1 Realcold shall not be liable for:
13.2.1 Any loss or damage of any kind whatsoever, arising from the supply of Goods and Services by Realcold to the Customer, including 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 Goods and Services provided by Realcold to the Customer; and
13.2.2 The Customer shall indemnify Realcold 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 Realcold or otherwise, brought by any person in connection with any matter, act, omission, or error by Realcold its agents or employees in connection with the Goods and Services.
14.1 Manufacturer's warranty applies where applicable.
14.2 Any written warranty provided by Realcold to the Customer shall also form part of these terms and conditions of trade.
15. COPYRIGHT AND INTELLECTUAL PROPERTY
15.1 Realcold, owns and has copyright in all designs, specifications, documents, work and software produced by Realcold in connection with the Goods and Services provided pursuant to this contract and the client may use the Goods and Services only if paid for in full and for the purpose for which they were intended and supplied by Realcold.
16. CONSUMER GUARANTEES ACT
16.1 The guarantees contained in the Consumer Guarantees Act 1993 are excluded where the Customer acquires Goods and Services from Realcold for the purposes of a business in terms of section 2 and 43 of that Act.
17. PERSONAL GUARANTEE OF COMPANY DIRECTORS OR TRUSTEES
17.1 If the Customer is a company or trust, the director(s) or trustee(s) signing this contract, in consideration for Realcold agreeing to supply Goods and Services and grant credit to the Customer at their request, also sign this contract in their personal capacity and jointly and severally personally undertake as principal debtors to Realcold the payment of any and all monies now or hereafter owed by the Customer to Realcold and indemnify Realcold against non-payment by the Customer. Any personal liability of a signatory hereto shall not exclude the Customer in any way whatsoever from the liabilities and obligations contained in this contract. The signatories and Customer shall be jointly and severally liable under the terms and conditions of this contract and for payment of all sums due hereunder.
18.1 Realcold 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 Realcold 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 Realcold has under this contract.
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, prejudice