1. APPLICATION
a. Gecko International Limited trading as Solutionair and the purchaser (You) agree that these terms and conditions of trade (Terms) will apply to any goods (Goods) supplied by Solutionair to You.
b. If there is a conflict between these Terms and any other terms and conditions of Yours (or included as part of any purchasing documentation) these Terms will prevail unless Solutionair has specifically agreed in writing that these Terms no longer apply.
c. Solutionair may amend these Terms at any time. The amended Terms will apply in respect of all Orders placed with Solutionair following the date the amended Terms are provided to You.
2. ORDERS
a. You will provide written orders for Goods to Solutionair (Order).
b. Each Order will be considered an offer to purchase the Goods and is accepted once Solutionair supplies the Goods or sends a written Order Confirmation to You.
c. Solutionair may accept or decline to accept an Order in its sole discretion.
d. If Solutionair is unable to supply the Goods, following acceptance of an Order, Solutionair may cancel an Order at any time in its sole discretion.
e. Solutionair may require a deposit on Order. If Solutionair cancels an Order, any deposit paid will be refunded in full.
f. An Order accepted by Solutionair may not be changed or cancelled by You unless agreed in writing by Solutionair.
3. PRICE AND PAYMENT
a. The price for any Goods supplied to You (Price) will be:
i. the price agreed in the Order confirmation;
ii. plus GST.
b. You will pay the Invoiced Amount in full and without deduction or set off by the Due Date,
c. Without prejudice to any other right or remedy, Solutionair may:
i. charge You (who will pay Solutionair on demand) default interest at 3% per month on the overdue amount, calculated daily from the Due Date until the date on which payment of the overdue amount is made in full;
ii. charge You (who will pay Solutionair on demand) all costs (including all legal costs on a solicitor-client basis and all collection costs) incurred by Solutionair in the collection of such overdue amounts; and
iii. refuse to deliver any Order, cancel or suspend any Order to You and any related entity of Yours.
4. DELIVERY
a. If You have arranged Solutionair to deliver Goods to You:
i. the transportation of such Goods is at Your expense;
ii. Solutionair will be responsible for risk until delivered to the agreed address;
iii. the Goods will be properly and suitably packed by Solutionair and in such manner as to reach the intended destination in good condition under normal conditions of transport;
iv. Risk will pass to You once the Goods arrive at the agreed destination.
b. Solutionair will not be liable for, or responsible for, any damage that occurs after Delivery, provided that it has complied with clause 4(aiii); and
c. Solutionair will not be liable to You for any loss of revenue, loss of profits or any other indirect or consequential losses or liabilities incurred by You if any Goods are not delivered on any specified date.
5. RISK AND TITLE
a. Unless agreed in writing by Solutionair, all risk of loss, damage, deterioration or
destruction to the Goods will pass to You on Delivery. Title to any Goods will not pass to
You until Solutionair has received payment in full for all Goods supplied to You.
b. Until title to the Goods passes, You will:
i. hold the Goods as a bailee only;
ii. clearly designate the Goods as Solutionair’s property and store the Goods in
such a way that they are identified as Solutionair’s property; and
iii. maintain the Goods in good order and condition and preserve the Goods in
their present form.
c. Without limiting Solutionair’s other rights and remedies, Solutionair will be entitled to
retake possession of any Goods at any time prior to payment in full being received for
those Goods. You grant Solutionair an irrevocable right and authority to enter onto any
place where such Goods are, or thought to be, at any time, and to take and resell the
Goods and to retain the proceeds from such sale. Any shortfall arising from such sale will
be a debt due and owing to Solutionair by You.
6. PERSONAL PROPERTY SECURITIES ACT 1999
a. You acknowledge that the retention of title in clause 5 gives rise to a security interest in
all present and after acquired Goods supplied by Solutionair to You to secure Your
performance of its obligations to Solutionair.
b. You undertake to:
i. promptly do all things, execute all documents and/or provide any information
which Solutionair may reasonably require to enable Solutionair to perfect and
maintain the perfection of its security interest (including by registration of a
financing statement);
ii. give Solutionair not less than 14 days’ prior written notice of any proposed
change in its name and/or any other change to its details; and
iii. immediately on request by Solutionair (and at the Purchaser’s expense) obtain
from any third party such agreements and waivers of any security interest that
third party has in the Goods, to ensure that at all times Solutionair has a first
priority security interest in the Goods.
c. You waive your rights to receive a copy of any verification statements under the PPSA
and agree that as between Solutionair and You:
i. You will have no rights under (or by reference to) sections 114(1)(a), 116, 120(2),
121, 125, 129, 131, 133 and 134 of the PPSA; and
ii. where Solutionair has rights in addition to those in Part 9 of the PPSA, those rights
will continue to apply.
7. RETURN OF GOODS
a. Any claims by You that any Goods supplied do not correspond to the relevant Order, or
that any Goods received are defective, must be made in writing to Solutionair within 10
working days after Delivery.
b. If no claim is received by Solutionair within the 10 working day period You will be
considered to have irrevocably accepted the Goods.
c. If a claim is made by You under clause 7(a):
i. You will advise Solutionair of the defect in the Goods and seek Solutionair’s
permission to return those Goods to Solutionair for testing or verification (at Your
cost); and
ii. subject to verification, and on receipt of the Goods returned:
1. if Solutionair supplied incorrect or defective Goods, Solutionair will in its
sole discretion either issue a credit note for the Goods or, if possible,
transport the applicable replacement Goods to You at no additional
cost to You; or
2. if Solutionair has not supplied incorrect or defective Goods, or the claim
is made outside the applicable period, then Solutionair will return the
Goods to You at the cost of You and You will have no further claim
against Solutionair in relation to those Goods.
8. TESTING AND ACCESS
a. If Solutionair wishes to commission or test Goods Solutionair holds the title of, but have
already been delivered, Solutionair will give You reasonable notice of its intention to do
so. You will allow or arrange reasonable access for Solutionair to any site in order to carry
out these tasks.
9. LIMITATION OF LIABILITY
Without prejudice to clause 7, You acknowledge and agree that:
a. Solutionair is not liable to You in any manner in connection with any breach of these
Terms, other than to compensate You for the cost of replacement of any Goods
pursuant to clause 7; and
b. nothing expressed or implied in these Terms will confer any liability on Solutionair for any
consequential, indirect or special loss, damage, cost or expense suffered or incurred by
You as a direct or indirect result of:
i. a breach by Solutionair of any of its obligations under these Terms; or
ii. any use of the Goods otherwise than in accordance with any relevant
specifications notified by Solutionair to You.
10. WARRANTIES
a. Unless warranted in writing by Solutionair (in relation to of any specific Goods), Solutionair
makes no representation, warranty or undertaking (whether express or implied) in
relation to any Goods (including as to the merchantability, quality, or condition of the
Goods, compliance with the description of the Goods, the suitability or fitness of the
Goods for the Purchaser’s purposes, or the use of the Goods) and to the maximum
extent permitted by law, all such representations, warranties and undertakings are
negatived and excluded.
b. Where the Purchaser is acquiring (or represents itself as acquiring) any Goods for the
purposes of a business, in terms of section 43(2) of the Consumer Guarantees Act 1993
(Act), the Purchaser will not assert or attempt to assert any rights or claims against
Solutionair under the provisions of the Act.
c. The Purchaser acknowledges that it is not relying on Solutionair’s skill or judgment as to
the suitability or otherwise of the Goods for any purpose.
d. Where the Purchaser on sells any Goods to consumers who purchase those Goods for
business purposes, the Purchaser will contract out of the Act in the same manner as
provided in clause 10(b). If the Purchaser fails to do so, the Purchaser will indemnify
Solutionair against any claim, expense or loss suffered or incurred by Solutionair as a
direct or indirect consequence of such failure.
11. PRODUCT WARRANTY
If a specific product is warranted in writing by Solutionair, following terms shall apply:
a. Warranty Conditions
Warranty in respect of the purchased product, Solutionair warrants to You that for the
time of the stated product warranty period, starting at the date of purchase, the
product will be free from defects due to faulty manufacturing by the manufacture.
b. Warranty claim procedure
Any warranty claim must be promptly notified in writing to Solutionair (and in any event
within 30 days of the date You first become aware that the product is properly the
subject of a claim under this term).
The warranty claim notice must provide sufficient details to enable the particular
product to be identified and describing the nature and extent of the defect.
Solutionair will, within 30 work days, after receipt of a notice issued pursuant to clause a)
above, evaluate the warranty claim. If Solutionair determines that the warranty claim is
valid, then Solutionair will, at its sole discretion and within a reasonable time, do one or
more of the following things:
i. supply (or cause to be supplied) at Solutionair’s expense a replacement item to
exchange the defect item; or
ii. supply (or cause to be supplied) at Solutionair’s expense, labour and material to
correct the defect; or
iii. pay You a reasonable amount (comparable to HVAC industry standards) to
enable You to have the defect corrected; or
iv. arrange for a third-party maintenance organisation to correct the defect at
Solutionair’s reasonable cost.
c. Exclusions
Liability of Solutionair under any of the Product Warranty terms will only arise in respect of
the relevant purchased product if:
i. You or its customer has exercised all due care to ensure the product has, and all
parts of the system have, been used in an appropriate manner to ensure
protection from damage;
ii. the product has been installed, operated and maintained by You or its user in
accordance with its documents and HVAC industry standards;
iii. You or its user has not attempted to correct the relevant defect and has not
instructed or allowed any third-party to do so without prior approval of
Solutionair; and
iv. the product was used only in normal operating conditions, has not been
misused and has not subsequently been repaired, maintained or serviced
(except filter changes) by any person or entity other than Solutionair or one of
Solutionair’s authorised service technicians.
Except as expressly provided in clause a) above, all terms, conditions, warranties,
undertakings, inducements and representations whether express or implied, statutory or
otherwise relating in any way to any goods or services supplied by or on behalf of
Solutionair are hereby excluded.
d. Return of products or components
Where possible and requested by Solutionair, You must promptly return any defective
product or component of a product (in following Parts), that requires repair or
replacement under this warranty, to Solutionair and such items will, upon receipt by
Solutionair, become the property of Solutionair.
Where Solutionair requests You to return Parts to any particular facility for the purpose of
processing a warranty claim by Solutionair, all transport expenses (and transport
insurance expenses) will be paid by You.
Solutionair will reimburse this amount (to a reasonable level and subject to clause e)
below) if, but not otherwise, Solutionair determines that the part was properly the subject
of a claim by You under clause a) above.
On completion of a warranty repair, all reasonable transport expenses incurred in
returning the Part to You will be paid by Solutionair.
e. Liability for breach of warranty
i. Limitation of liability
Solutionair’s total liability arising in connection with purchased product whether
in tort (including for negligence or breach of statutory duty), contract or
otherwise shall not exceed the amounts actually paid by You to Solutionair in
respect of the purchased product.
ii. Indirect and consequential loss and damage
Solutionair will not under any circumstances be liable whether in tort (including
for negligence or breach of statutory duty), contract or otherwise for any:
1. indirect or consequential loss or damage however caused;
2. any amount in respect of any loss of use of the purchased product (or
of any part of it).
12. PRIVACY
Any information about the Purchaser provided at any time to Solutionair may be used by
Solutionair for any purpose connected with Solutionair’s business including (but not limited to)
direct marketing, debt collection and credit reporting or assessment. Solutionair is authorised to
provide such information to any external agency or party for credit information and assessment
purposes and that agency or party is authorised by You to use and continue to use such
information as part of its business services. Solutionair and any external agency or party may
retain and/or use such information for as long as they see fit.
13. GENERAL
a. You will not assign or otherwise transfer its rights or obligations under these Terms to any
person without the prior written consent of Solutionair.
b. Solutionair will not be liable for any act, omission or failure by it under these Terms if that
act, omission or failure results directly or indirectly from an event or circumstances
beyond the reasonable control of Solutionair, to the extent permitted by law.
c. Any waiver by a party of any of its rights or remedies under these Terms will be effective
only if it is recorded in writing and signed by a duly authorised senior representative of
that party. If the waiver relates to a breach of any provision of these Terms, this will not
(unless stated otherwise) operate as a waiver of any other breach of that provision. No
waiver of any breach, or failure to enforce any provision, of these Terms at any time by
either party will in any way affect, limit or waive that party’s right to subsequently require
strict compliance with these Terms.
d. If any provision of these Terms is or becomes invalid or unenforceable, that provision will
be deemed deleted from these Terms. The invalidity or unenforceability of that provision
will not affect the other provisions of these Terms, all of which will remain in full force and
effect to the extent permitted by law, subject to any modifications made necessary by
the deletion of the invalid or unenforceable provision.
e. These Terms are governed by the laws of New Zealand. The parties submit to the nonexclusive
jurisdiction of the New Zealand courts in respect of all matters relating to these
Terms.
Solutionair Customer Service Contact
Email: enquiries@solutionair.co.nz
Phone: 0800 484 3269
