7.1. Ownership of the Goods which are the subject of this Contract shall not pass to the Client until they are fully paid for, but the risk in the Goods shall be borne by the Client from the date of dispatch from the Contractor’s premises or designated warehouse (if applicable).

7.2. The Contractor is entitled to receive all the insurance proceeds payable for the Goods (uninstalled) should any Goods be damaged or destroyed after delivery has happened if title to the Goods has not been passed to the Client. Although the preparation of these terms and conditions is done so by the Contractor, the Contractor shall still be entitled, without prejudice to any other of its rights or remedies under these terms and conditions to use this Contract (including invoices, consignment notes or delivery dockets) with the Client, as prima facie evidence, if an insurance claim is made and thereby no further investigations ought not to be necessary.

7.3. If the Contractor is instructed to leave Goods outside the Contractor’s premises for the Client’s collection or to deliver the Goods to an unmanned Site, then such Goods shall be left at the Client’s sole risk.

7.4. The Client Accepts and Agrees that:

• (a) All dimensions, plans, and specifications pertaining to the Services shall be in line with New Zealand Standards (“NZS”) customary industry tolerances;
• (b) The Contractor shall be entitled to reply on the accuracy of any plans, specifications or other information provided by the Client;
• (c) If any plans, designs or specifications or any other information supplied by the Client pertaining to the Services that the Contractor should reasonably be expected to rely on, as being compliant with NZS but are subsequently found to be inaccurate or invalid because it is proven that the Client was in breach of clause 7.4(a) unbeknown to the Contractor, then the Contractor shall not be liable for any losses, damages, or costs (howsoever arising) that the Client may suffer;
• (d) Other than a Force Majeure event, if the Services are delayed for more than a 3-month period by the Client, once a job has commenced, the Client agrees to settle all monies owed by the Contractor for complete stages and/or Goods purchased up to the date in which the delay started. The Contractor shall have the right to requote the balance of Services to be performed, if the cost to the Contractor in performing such Services increases due to any increase, or the introduction by a statutory or other authority of a tax, duty, charge, levy, or legislation then the amount of the increase is to be treated as a variation and clause 4 shall apply;
• (e) Goods may present variations in shade, colour, markings, and indentations, surface texture, and finish, all of which may fade or discolour over a period time. Batches of products from suppliers are known to vary, which is beyond the Contractor’s control, however, matching batch supplies and/or where the Contractor uses new Goods with existing items, the Contractor makes every effort to reduce any variations wherever possible. The Contractor shall not accept liability, in any way whatsoever where such variations occur;
• (f) Goods can mark or stain if exposed to certain substances or be damaged or disfigured by impact or scratching;
• (g) All Goods supplied by the Contractor with product maintenance instructions are important to follow, as failure to comply with such maintenance instructions may result in any applicable warranty becoming void.

7.5. The Contractor will not accept responsibility for any defect that may occur due to:

• 7.5(a) Failure by the Client to follow the Contractor’s recommendations:
• (i) If the Client has chosen to store the Goods off Site for a period that results in any form of deterioration due to the Client’s action or inaction to effect installation; or
• (ii) If other tradesmen contracted to the Site cause any damage (such as, touch-up painting of walls, windows, door frames or any all-other adjacent surfaces) to the Contractor’s Services during or after completion or any third-party using any items that overloads the structure or system to which the Contractor’s Goods are installed or connected to shall not form any part thereof any applicable warranty offered by the Contractor for the Services. If the Client requests the Contractor to remedy any such damage, additional charges will apply;
• 7.5(b) Any defect in other appliances or power points, as a coincidence of the Contractor installing the Goods;
• 7.5(c) Any loss or damage caused in accessing the work area affects the provision of the Services, unless any such loss or damage is attributed to the negligence of the Contractor.
• 7.5(d) If the Contractor performs any temporary repairs:
• (i) The Contractor offers no guarantee against the reoccurrence of the initial fault, or any further damage caused;
• (ii) The Client will be advised immediately of the fault, with an estimate for the full repair required;
• (iii) The Contractor only accepts responsibility for the components that it replaces, no liability is accepted in respect of any previous components or services supplied by any other third party that subsequently fail after the Contractor has conducted its temporary repair as requested and it is later discovered that the previous components or services were the actual source of the failure.
• 7.5(e) Any equipment partly or completely installed on the Site is the Client’s responsibility to insure, against theft or damage; and
• 7.5(f) Under no circumstances, will the Contractor handle removal of asbestos product. If asbestos (or other hazardous material) is discovered on the Site:
• (f)(i) The Contractor shall suspend the Services or seek an extension of time as per clause 6.2;
• (f)(ii) The Client shall be fully responsible for the resolution of any resulting problems;
• (f)(iii) Any additional cost incurred by the Contractor shall be added to the Price under clause 4.

8. DEFECTIVE GOODS OR SERVICES & RETURNS

8.1. The Client agrees to examine the Goods (Services on completion) on delivery and shall satisfy itself that they conform with the quotation, description, purchase order or any other document applicable to this Contract, that the Goods are of merchantable quality, fit for purpose and in a useable condition.

8.2. If the Client discovers a defect in the quality, or a shortage in the quantity of the Goods, or a failure to comply with the Contractor’s quote and these terms and conditions, they must immediately notify the Contractor of that defect. If no notice is received by the Contractor within 5 Business Days from the time of delivery, then the Goods and Services shall be assumed to be accepted and clear from any defect or fault.

8.3. Except for which is permitted by law (which cannot be contracted out of, excluded, or modified including but not limited to, the Consumer Guarantees Act 1993, the Fair Trading Act 1986, the Contract and Commercial Law Act 2017 or any other applicable statute), the Contractor’s liability in any case of any defect or fault, or otherwise under this Contract, shall be limited to:

• (a) The value of the total amount invoiced to the Client; or
• (b) The Contractor repairing or replacing the Goods in relation to the defective or faulty Goods and/or Services for which such liability arises.

8.4. Returns for non-defective Goods for credit are only accepted at the Contractor’s discretion, which is subject to a restocking and handling fee of 10% of the returned Goods, plus any freight, unless otherwise agreed.

8.5. Conditions apply to all Goods for return (if any), such as:

• (a) The Client carried out the Contractor’s requests detailed in clauses 8.1 and 8.2;
• (b) The Contractor has confirmed in writing, that the returned Goods are accepted;
• (c) The cost of returned Goods shall be borne by the Client and must be returned within 5 Business Days of the delivery date as stated in clause 8.2, or any other date as agreed with the Contractor;
• (d) Returned Goods are still in good condition (as reasonable possible) together with all the original wrapping, catalogues, and maintenance instructions together with a copy of the original invoice.

9. WARRANTIES

9.1. Subject to the conditions of the warranty set out in clause 9.2, the Contractor warrants that if any defect in any Goods supplied or Services provided by the Contractor becomes apparent and is reported to the Contractor within twelve (12) months of the date of delivery of the Goods or the completion of the Services (this timeline being important), then the Contractor will either (at the Contractor’s sole discretion, once the Client’s claim has been assessed by the Contractor) replace the Goods or remedy the workmanship, within a timely manner agreed to between the two parties. However, the Contractor will not accept any liability to compensate the Client where delays may occur.

9.2. The conditions applicable to the warranty given by clause 9.1 are:

• 9.2(a) The warranty shall not cover any defect or damage which resulted in:
  • (i) Failure by the Client to properly maintain any Goods; or
  • (ii) Failure by the Client to follow any maintenance instructions (including adequate cleaning with the likes of heat pump installations or maintenance with keeping the cooling system clear and free from excessive dust) provided by the Contractor; or
  • (iii) Any use of any Goods otherwise intended for any application specified on a quote or order form; or
  • (iv) The Client’s continued use of any Goods after any defect becomes evident or would have become evident to a trained operator or user of such Goods; or
  • (v) Fair wear and tear, any accident or act of God;
• 9.2(b) The warranty shall cease, and the Contractor shall thereafter in no circumstances be liable under the terms of the warranty in respect of all claims, if the workmanship is repaired, altered, or overhauled by another third party without the Contractor’s consent.

9.3. Only a manufacturer’s warranty will apply (if any) when the Contractor has not actually manufactured the Goods. The Contractor will not be liable in any way or be required to meet any obligation given under a manufacturer’s warranty. In the event of a claim, the Client must deal directly with the manufacturer, unless it is agreed between both parties that the Contractor shall act on behalf of the Client in respect of any manufacturer’s warranty claim.

9.4. Notwithstanding clause 9.3, the Client accepts that if a manufacturer’s defective item is identified (regardless of whether it is the Client or the Contractor that has supplied the Goods) that needs to be replaced or repaired, it shall be the Client’s responsibility to meet any costs associated with the dismantling or reassembly of the Goods incurred by the Contractor (time, travel plus labour) in rectifying the issue on the Client’s behalf. The Contractor’s liability shall be limited in all instances (whether it’s a manufacturer’s warranty claim or a general warranty claim) to the repair or replacement only of the defective part/component pertaining to the Goods or Services.

9.5. Any expressed warranty offered by the Contractor regarding any Goods or the Services will be clearly detailed in the Warranty Document, which will be provided upon the completion of the Services.

10. INSURANCE

10.1. The Contractor will have in place Public Liability Insurance with appropriate cover for loss or damage to any other property, or injury or death or illness which arises from carrying out the Contractor’s Services of not less than $5 million. It is the Client’s responsibility to ensure that they are similarly insured.

11. TITLE

11.1. Title in any Goods (including documentation, if applicable) supplied by the Contractor in the provision of the Services does not pass to the Client until payment for the Goods and Services (together with any additional interest or charges as set out in these terms and conditions) have been made in full by way of cleared funds and the Client’s obligations have been fulfilled, and until then the Contractor’s ownership or rights in respect of the Goods and Services shall continue.

11.2. Until such time as title passes to the Client:

• (a) The Client holds the Goods on trust for the Contractor as “bailee” and must return any uninstalled Goods to the Contractor on request and irrevocably authorises the Contractor to enter any property where the Contractor believes the uninstalled Goods are kept and recover possession, without the Contractor being liable for any loss or damage caused to the Client;
• (b) If possession of the Goods passes to another third party by way of sale or the Client does anything to the Goods (including where Goods are converted into other products) which changes its form, then the Client as per clause 11.1 must hold such funds from this transaction on trust for the Contractor, and make payment immediately upon demand;
• (c) At no time shall the Client be entitled to use the Goods as a form of security (including but not limited to, executing a charge or lien over the Goods when ownership of the Goods has not taken place).

12. INTELLECTUAL PROPERTY

12.1. All rights, titles, and interests in and to all Intellectual Property always will remain the exclusive property of the Contractor.

12.2. The Client agrees to indemnify the Contractor against any claims by third parties for any breach of Intellectual Property caused by the Client. Furthermore, where the Client has supplied any Intellectual Property to the Contractor, the Client warrants that the supply of such Intellectual Property does not breach any patent, trademark, design, or copyright.

12.3. The parties agree, unless the Client is to make purchase to the rights of any Intellectual Property created for them by the Contractor, that the Contractor retains all rights, to the use of said Intellectual Property for the Contractor’s own benefit, such as, in the use of promoting their business or advertising thereof, or for entry use, on any worldwide industry platform.

13. DEFAULT

13.1. In any event, the Contractor reserves the right to charge the Client interest in respect of the late payment of any sums due under this Contract, at the rate being two and a half percent (2.5%) per calendar month (interest shall accrue daily and will compound monthly), from the due date until receipt of payment, and prior, to any judgement being awarded by a court of law.

13.2. For the sake of clarity, the Contractor has the right to suspend or bring the whole Contract to an end, or parts thereof, or any other contract or contracts with the Client, in addition to its other remedies, upon the happening of any of the following events of default:

• (a) Where monies owed by the Client to the Contractor remain outstanding;
• (b) If the Client breaches, or fails to comply or repudiates, any obligation under this Contract or any other subsequent contract with the Contractor;
• (c) The Client is intimating that they will not pay any sum by the due date;
• (d) Any Goods seized by any other creditor of the Client or any other creditor intimate that it intends to seize the Goods;
• (e) Any Goods in the possession of the Client are materially damaged while any sum due from the Client to Contractor remains unpaid;
• (f) The Client dies, becomes insolvent or subject to bankruptcy laws, calls a meeting of creditors, or if a company – enters into an arrangement with creditors or makes an assignment/compromise for the benefit of its creditors, or receivers, managers, liquidators (provisional or otherwise), administrators or any similar party is appointed in respect of the Client (or any asset of the Client), has any winding up petition presented against, or ceases to carry on business;
• (g) If the Client ceases or threatens to cease carrying on business;
• (h) If the ownership or effective control of the Client is transferred, or the nature of the Client’s business is materially altered.

13.3. Whether this Contract is ended by mutual agreement or due to any breach by the Client, all monies owed by the Client (including any interest or costs due) to the Contractor shall become immediately due and payable. Without limiting the effect of this clause 13.3 it shall survive the end of this Contract, and any other terms and conditions which by their nature are intended to survive.

13.4. Where any event of default occurs, the Contractor may appoint a receiver in respect of all Goods (including their proceeds) supplied to the Client and any such receiver may take possession of the Goods and sell them and otherwise exercise all rights and powers conferred on a receiver by law.

13.5. Notwithstanding clause 13.1, it is further agreed that if the Client owes the Contractor any money, the Client agrees to reimburse the Contractor all costs and expenses suffered by the Contractor in their attempt to recover all overdue monies owed to the Contractor, (which may include charges incurred by the Contractor from their banking institute for dishonours or chargebacks, legal costs on a solicitor and own client basis, inhouse admin fees or any fees charged during the debt recovery process, if a debt is passed to a recognised Debt Collection Recovery Agency).

14. CANCELLATION

14.1. By the Contractor:

• (a) At any time before the Services are carried out, upon providing the Client forty-eight (48) hours written notice;
• (b) Upon the required notice being given under section 24A (relating to suspension or terminations) of the Construction Contracts Act 2002 (if applicable);
• (c) The Contractor agrees to refund the Client any funds paid by the Client in respect of the Goods or Services, less any amounts owing to the Contractor for any Goods purchased on the Client’s behalf where credits or refunds cannot be obtained from the Contractor’s third-party suppliers;
• (d) The Contractor will not be liable to the Client for any loss or damage the Client suffers because the Contractor has relied on its rights covered in this clause.

14.2. By the Client:

• (a) Prior to commencement of the Services or delivery of the Goods, by giving no less than forty-eight (48) hours’ written notice, the Client remains liable for any costs incurred by the Contractor (including, but not limited to, loss of profit) up to the time of cancellation;
• (b) Where the Client cancels the Services that have already commenced:
  • (i) The initial notification may be by telephone or email but must be confirmed in writing within 7 Business Days;
  • (ii) The Client shall be invoiced for all work completed up until the date of cancellation. Any deposit paid prior to the commencement of the Services will be forfeited in lieu of monies due, however, the Client remains liable for any monies due over and above any deposit paid;
  • (iii) At the Contractor’s discretion, where failure of clause 14.2(b)(i) occurs, the Client may be required to pay the full quoted Price.
• (c) Cancellation is not accepted by the Contractor if the new Goods have been used, if the Client later changes their mind, unless the cancellation is subject to the Consumer Guarantees Act 1993.

15. PRIVACY POLICY

15.1. In accordance with the Privacy Act 2020 and full disclosure, the Contractor has advised the Client that Personal Information will be collected, handled, used, and stored about the Client during the business relationship and thereby, the Client grants consent to the Contractor to proceed with any inquiries with any third party necessary for the following purposes:

• (a) Assessing the Client’s credit risk (if any);
• (b) Administering the Client orders;
• (c) Receiving information from one or more credit reference agencies, relating the credit record and repayment history of the Client;
• (d) Disclosing credit-related information to and using the credit services of one or more credit reference agencies, on a continuing basis at any time and entirely at its discretion concerning the Client’s creditworthiness.

15.2. For the avoidance of doubt, all authorities given above are continuing authorities, to apply throughout the duration of the term of the Contractor and Client’s trading relationship.

15.3. The Client, if an individual, has the right to access Personal Information about the Client held by the Contractor and may request correction of the information.

15.4. The Contractor agrees to destroy Personal Information upon the Client’s request in writing (or email) or if the Personal Information is no longer required unless it is required to fulfill the obligations of this Contract or is required to be maintained and/or stored in accordance with the law.

15.5. If any Client believes their privacy has been breached in any way, then a privacy complaint can be made to the Contractor’s Privacy Officer via email at: service@sfe.co.nz or by post to: The Privacy Officer, Silver Fern Electrical Limited T/A Silver Fern Electrical, 27 Kaiwharawhara Road, Kaiwharawhara, WELLINGTON 6035. The Contractor will respond to that complaint within 7 days of its receipt. Should more time be needed to investigate the complaint, then the Contractor will undertake to decide on a resolution within 20 days of the original date of receipt. If the Client is not satisfied with the resolution provided by the Contractor, the Client can make a complaint to the Privacy Commissioner at www.privacy.org.nz.

15.6. For the purposes of this clause 15, Personal Information has the meaning given to it in the Privacy Act 2020.

16. ASSIGNMENT

16.1. Neither party shall assign, sub-license or otherwise transfer this Contract or any part of it to any other person, without first obtaining written consent (hardcopy or email) of the other party. Such consent shall not be unreasonably withheld or delayed.

16.2. Unless specifically stated otherwise, in any consent to an assignment (as covered in clause 16.1), no assignment shall release or discharge the assignor from any liability or obligation under this Contract.

16.3. Furthermore, it is agreed between the parties that the Client cannot give any instructions or redirect the performance of the Services of any of the Contractor’s subcontractors or third-party suppliers that are engaged to carry out any part of the Services, without first obtaining written consent from the Contractor.

17. FORCE MAJEURE

17.1. Neither party shall be liable if a Force Majeure event occurs:

• (a) The obligations of a party under this Contract will be suspended to the extent that it is wholly or partially precluded from complying with its obligations under this Contract by Force Majeure; and
• (b) A party affected by Force Majeure must notify the other party as soon as practicable of the Force Majeure and the extent to which that party is unable to comply with its obligations; and
• (c) If a failure or delay in performance exceeds 60 Business Days, either party may immediately terminate this Contract by written notice to the other party.

17.2. Nothing in clause 17.1 shall excuse payment of any amount owing due or which becomes due under the terms of this Contract.

18. MISCELLANEOUS

18.1. Dispute: Any dispute or difference in connection with, or arising out of, this Contract shall be dealt with by the concerning party giving the other party written notice, clearly identifying, and providing full details of the dispute. Failure to resolve the dispute within 10 Business Days (or any other agreed timeframe) by way of formal discussions and/or mediation will result in the dispute being referred to a sole arbitrator in accordance with the Arbitration Act, or where applicable, adjudication under the Construction Contracts Act 2002.

18.2. Jurisdiction:

• (a) If any term or obligation of this Contract is at any time held by any jurisdiction to be negated, invalid or unenforceable, it shall be treated as changed or reduced only to the extent necessary to bring it within the laws of that jurisdiction and to prevent it from being void. Subject to that, each provision shall be interpreted as severable and shall not affect the other provisions;
• (b) The legality, construction and performance of this Contract shall be governed by the laws of New Zealand. The Client agrees that any dispute that cannot reasonably be resolved by mediation shall then be litigated only in the jurisdiction of the Wellington Courts of New Zealand.

18.3. Legislation:

• (a) If the Client is acquiring Services for the purposes of a trade or business, the Client acknowledges that the CGA and relevant sections of the FTA do not apply, unless the conduct was intentional;
• (b) If the Client is a “consumer” under the CGA and is not in trade, nothing in the Contract excludes or limits their rights under that Act;
• (c) Both parties agree to comply with all applicable New Zealand laws, including but not limited to the Building Act, CCA, HSW Act, Electricity Act, and all related regulations;
• (d) The Contractor acknowledges that:
  • (i) Any unsafe or defective switchboard work will be notified immediately, and power may be isolated, especially where health-critical equipment is used;
  • (ii) Re-energisation will only occur after the site is deemed safe and compliant with safety regulations. Additional charges for isolation will be invoiced as per clause 4.
• (e) All work by the Contractor shall be tested to ensure electrical safety and compliance with New Zealand wiring standards before final sign-off.

18.4. If the Client breaches clause 18.3, the Client agrees to indemnify the Contractor for all resulting claims, costs, or liabilities.

18.5. Limitation of Liability: THE CONTRACTOR WILL NOT BE LIABLE FOR ANY LOSS CAUSED BY THE CLIENT’S FAILURE TO FULFILL THEIR OBLIGATIONS. THE CONTRACTOR’S TOTAL LIABILITY WILL NOT EXCEED THE PRICE OF THE SERVICES.

18.6. Notices: Notices under this Contract must be in writing and delivered by email, registered post, or in person. Delivery is deemed effective at the time a notice would typically be received.

18.7. Terms & Conditions Changes: The Contractor may amend these terms and conditions. Any amendments will be provided in writing or notified by email and made available via the Contractor’s website. They take effect upon the Client’s acceptance or request for new Goods or Services.

19. DEFINITIONS AND INTERPRETATION

19.1. In this Contract, unless the context otherwise requires, capitalised terms have the meaning set out below:

• (a) “Business Days” – means a day on which banks are open for business in New Zealand other than a Saturday, Sunday, or public holiday.
• (b) “Confidential Information” – means any information:
  • (i) Relating to this Contract;
  • (ii) Relating to a quotation, order or proposal or its contents;
  • (iii) Relating to a Client of the Contractor;
  • (iv) Disclosed by either party to the other party on the express basis that such information is confidential; or
  • (v) Which might reasonably be expected by either party to be confidential in nature.

  Provided that, where information relates exclusively to one party, nothing in this Contract will require that party to maintain confidentiality in respect of that information.

• (c) “Client” – means the person/s, entities (including but not limited to, partnerships and/or a trust and where applicable shall include the Client’s executors, administrators, successors and permitted assigns) or any person acting on behalf of and with the authority of the Client requesting the Contractor to provide the Services as specified in any proposal, quotation, order, invoice, or other documentation.
• (d) “Contract” – means this Contract, inclusive of its terms and conditions contained herein, its schedules and annexures or any quotation, proposal, invoice, or document that forms part thereof and/or is deemed to be supplementary to this Contract.
• (e) “Contractor” – means SILVER FERN ELECTRICAL LIMITED trading as SILVER FERN ELECTRICAL, its successors, and assigns.
• (f) “Force Majeure” – means an event outside the reasonable control of either party, including an act of God, earthquake, adverse weather conditions, flood, storm, fire, explosion, war, rebellion, terrorism, strike, lock-out, industrial action, national or global epidemics or pandemics and/or the implementation of regulation, directions, rules or measures being enforced by Governments or embargo, including but not limited to, any Government quarantine restrictions for Goods or individuals.
• (g) “Goods” – means Goods, equipment, or parts of any kind that the Contractor provides to the Client as specified in any Contract, quotation, proposal, order, or any other documentation.
• (h) “GST” – means Goods and Services Tax, as defined within the Goods and Services Tax Act 1985.
• (i) “Intellectual Property” – means and includes (whether invisible, electronic or any other form) all brands, and symbols, names and images used in commerce, goodwill, logos, formulae, techniques, know-how, specifications, designs, drawings, copyright, manufacturing processes, patents, and trademarks (if any) whether registered or not, software (and source and object code), business strategies and contracts, confidential business information including market and marketing strategies.
• (j) “Personal Information” – means information about an identifiable individual by way of their name, address, D.O.B., occupation, driver’s license details, electronic contact type details, such as email, IP Address, Facebook, or Twitter, or next of kin and any other contact information (if applicable) and where deemed relevant shall include any previous credit applications or credit history details. By the nature of such information, it shall always be considered Confidential Information.
• (k) “Price” – means the Price due under this Contract (in NZD) for the supply of Goods and/or Services as agreed between the Contractor and the Client and (if applicable) shall include any GST payable.
• (l) “Services” – means all Services (including any documentation, advice, consultancy, or recommendations regarding electrical Services associated with electrical maintenance and servicing, heat pump and LED light installations, ducting, electrical switchboard upgrades and home rewiring, smartvent systems and smart homes and/or related Goods plus sales of new motors and pumps) supplied by the Contractor to the Client, and are as described on the invoices, quotation, authorisation form, equipment hire authority, or any other forms as provided by the Contractor to the Client.
• (m) “Site” – means the land (or that part of the land) that the Contractor reasonably needs to occupy to carry out and practically complete the Services required under this Contract.

19.2. Neutral Interpretation – nothing in this Contract is to be interpreted against a party solely on the ground that that party put forward this Contract or a relevant part of it.