GENERAL Unless otherwise agreed in writing, the following terms and conditions will apply to all quotations and orders of Power Protection Ltd (PPL). Where the Purchaser’s terms and conditions are in conflict with PPL’s the following shall prevail. In these Conditions the following expressions shall have the following meanings unless the context otherwise requires –
AGREEMENT means the agreement for the provision of the Goods or Services, including these Terms and Conditions, or a customer’s official purchase order, accepted by PPL, for the provision of the Goods or Services.
AGREED RESPONSE TIME means the time specified in the scope of work forming part of the agreement for the performance of unscheduled repair Services by PPL.
EXPECTED SERVICE LIFE means in relation to any battery forming part of the System, 80% of the maximum service life claimed by the battery manufacturer.
GOODS means the Goods to be provided by PPL specified in PPL’s quotation or set out in PPL’s acceptance of the Purchaser’s order, including Goods supplied as part of the Services.
NORMAL WORKING HOURS means the hours of 9am to 5pm inclusive on each day of the week excluding Saturday, Sunday and Public Holidays.
SERVICE CHARGE means the annual fee or quoted price for the provision of the Services. SERVICES means the Services to be provided by PPL set out in the scope of work forming part of the Agreement, including any of the Services of inspection, commissioning, maintenance, repair or remote diagnostic monitoring of the System.
SITE means the Customer’s premises at which the System is installed as specified in the Agreement. SYSTEM means the uninterruptible power supply equipment, batteries and other connected parts identified in the Agreement.
2. THE CONTRACT PPL’s quotation is valid for a period not exceeding thirty (30) days from the date of quotation. No contractual obligation shall arise until the Purchaser has sent to PPL either a written purchase order for the Goods or Services specified in PPL’s quotation or a signed acceptance of a Services Agreement, and PPL has dispatched to the Purchaser a written notification of acceptance to the order. Until such notification is received by the Purchaser, PPL reserves the right to revise and withdraw the quotation without incurring any liability. The giving of any instructions by the Purchaser for Goods or Services or any part thereof or the acceptance of provision of the Goods or Services or any parts thereof by the Purchaser or any conduct by the Purchaser in confirmation of the contract after receipt of PPL’s acceptance, shall constitute unqualified acceptance by the Purchaser of PPL’s terms and conditions.
3. TECHNICAL INFORMATION Drawings and/or illustrations submitted in connection with PPL’s quotation or contained in lists, unless specially stated by PPL are not binding as to dimensions or details. Drawings, illustrations, specifications and any other information submitted with PPL’s quotation remain the property of PPL and must not be transferred to a third party by the Purchaser without PPL’s previous written consent. Unless otherwise specifically agreed in writing the Purchaser acknowledges that PPL has not warranted the capacity and performance of the Goods as being sufficient and suitable for their purpose.
4. SERVICES (a) PPL will provide the Services in accordance with the terms and conditions of the Agreement. Commissioning and scheduled maintenance will be carried out during Normal Working Hours unless otherwise agreed in writing at an agreed additional cost. (b) PPL will send a suitably qualified service technician to Site within the Agreed Response Time to undertake unscheduled repairs if PPL considers the visit necessary. (c) PPL may subcontract the provision of Services to a suitably qualified subcontractor, however PPL shall remain responsible for performance of the Services in accordance with the terms and conditions of the Agreement. (d) PPL shall comply with all agreed and statutory security, confidentiality, environmental and occupational health & safety requirements applicable to the provision of the Services. (e) Any comprehensive maintenance agreement included in the Services includes the cost of labour but excludes the cost of materials and disposal costs of the replacement of the batteries forming part of the System. (f) The Services (except for Repair works undertaken subject to PPL’s quotation or an agreed pricing schedule) do not cover maintenance of the System which is required as a result of any cause other than fair wear and tear, including accidental damage neglect or misuse of the System or modification, adjustment, repair or maintenance of the System by any third party.
5. LIABILITIES AND GUARANTEES
5.1 In respect of Goods – (a) PPL warrants that the Goods shall remain free from defect in material and workmanship for 12 months from the date of commissioning or twelve months from the date of invoice, whichever comes first. In the event of any such defect occurring, PPL, at it’s option, will repair or replace free of charge and FOB it’s store the part of the Goods found to be defective PROVIDED THAT the Purchaser shall have previously returned to PPL’s store the part alleged to be defective for examination at his own cost and PPL agrees that such part of the Goods has been supplied by PPL and is in fact detective. The Purchaser may at his option order a replacement part prior to the return of the alleged faulty part if desired for reason of expediency but such replacement part must be paid for in full. On return of the alleged faulty part to PPL, a refund will be made if the returned part is found to be faulty by PPL in accordance with the above conditions. In respect of parts, components or UPS systems not manufactured by PPL, PPL only warrants such parts, components or UPS systems to the extent that warranties have been given to PPL with respect to such parts or components or UPS systems by the supplier thereof, but not so as to impose upon PPL any greater liability than that imposed upon PPL by this clause. (b) In circumstances where the return to PPL store of the defective Goods supplied by PPL is impractical. PPL may at its option decide to correct the fault on the Customer’s premises PROVIDED THAT the Customer pays for all PPL meals, travel and accommodation expenses, including hourly travel rates. In such circumstances PPL will provide all materials free of charge under the conditions of warranty in this clause. Labour will also be provided free of charge during normal working hours (9am-5pm. Mon-Fri). Where the Purchaser agrees to repair works outside of normal working hours standard overtime rates will be applicable. (c) This warranty shall not apply to defects in the Goods caused by or resulting from fair wear and tear, willful damage, negligent or unskilled use in operation or storage or use in unsuitable conditions by the Purchaser or any third party after delivery by PPL thereof. Failure by the Purchaser to store or treat any Goods supplied by PPL in accordance with PPL’s and/or Manufacturer’s instructions (if any) shall exclude such Goods from the benefit of this warranty. (d) The warranty applying to batteries shall be that offered by the battery manufacturer. Providing the batteries are permanently connected to a power source within 3 months of delivery in accordance withy the requirements of the System and have been subject to the maintenance regime and environmental conditions specified by the battery manufacturer, PPL will replace defective batteries during the battery warranty period. Within the pro-rata warranty period, a replacement charge will apply in accordance with the formula (Mf/Me) x CRP where Me is the number of months comprising the battery warranty period; Mf is the number of months elapsed between commissioning of the System and the date where PPL identifies the presence of failed battery cells; and CRP is the replacement material price of the individual cells or the battery system current at the date when PPL identifies the need for replacement. Labour for battery replacements undertaken within the warranty period will be charged at the then current rates. (e) Where the Purchaser’s own materials not sold to the Purchaser by PPL are incorporated in any work, any defect in or caused by the Purchaser’s materials shall not be covered by the above warranty. (f) This warranty shall be in substitution for all conditions and warranties as to description, condition, fitness or quality either expressed or arising by implication or operation of law, statute or customer trade and such conditions and warranties are hereby expressly excluded. (g) PPL shall not be liable for indirect or consequential losses, damages or expense (including loss of revenue, loss of production, loss of profits and loss of goodwill) incurred by or resulting from any detects whatsoever in the Goods supplied by PPL.
5.2 In respect of Services – (a) PPL shall use all reasonable care and skill in providing the Services, but PPL warrants only that the System was at the time of inspection in the condition stated in the report of PPL’s representative. (b) PPL shall repair any defect in the System arising out of the negligence of PPL in performing the Services as soon as reasonably practicable, but (except as provided below) PPL shall have no further liability to the Purchaser for any loss or damage, including consequential loss or damage, loss of profits or contract or otherwise arising out of the Services. (c) PPL shall not be liable for damage to the System due to fire, water ingress, negligent or unskilled use, or conditions outside the tolerance specifications of the System. (d) Where the Services includes the transport or relocation of the Purchaser’s own goods, PPL shall not be liable for any loss or damage to the Purchaser’s goods arising out of the Services, except that due to the negligence of PPL in performing the Services. (e) Where the System is covered by a comprehensive maintenance agreement, PPL shall not be liable for rectification or replacement of the uninterruptible power supply equipment where in PPL’s opinion the equipment due to age or condition is at the end of its working life or beyond repair. (f) PPL will indemnify the Purchaser against direct damage or injury (but not indirect or consequential loss, including loss of revenue, loss of production, loss of profits and loss of goodwill) to the Purchaser’s property or person or that of others occurring whilst PPL is working on Site wholly caused by the negligence of PPL, its subcontractors or agents, but not otherwise by making good such damage to property or compensating personal injury provided that: I. PPL’s total liability for damage to the Purchaser’s property or person or that of others, of which must be proven, shall not exceed $500,000 and the price quoted for the works. II. PPL shall not be liable for any loss or profit or contract, or save as aforesaid, for loss, damage or injury of any kind whatsoever and however arising. III. Save as provided in the warranty clause above, PPL shall not be liable for any damage or injury occurring after PPL’s completion of work on site.
6. DELIVERY OF GOODS PPL’s standard delivery terms are on an FOB basis unless otherwise quoted. Unless otherwise agreed in writing, the time for delivery shall run from the date of PPL’s acceptance, and the Purchaser shall take delivery or nominate the point of delivery within seven (7) days from notification from PPL that the Goods is ready for delivery. If the Purchaser fails to take delivery under this condition, PPL shall issue an invoice for the full value of the Goods less installation and commissioning costs. PPL shall store the Goods at no charge for a period of four (4) weeks from notification from PPL that the Goods is ready for delivery, after which time storage charges will apply, and the Purchaser shall be liable to pay invoices submitted by PPL as defined in Terms Of Payment below, in addition to storage, handling and other associated costs arising from the delay. If PPL is prevented from making delivery of the Goods or any part thereof due to delay in PPL’s works or the works of Manufacturer’s, acts of God, war, strikes, lockouts, mobilisation, trade disputes, fire, shipwrecks, breakdowns, interruption of transport, Government action or any cause whatsoever outside its reasonable control, PPL shall be under no liability whatsoever to the Purchaser, and shall be entitled to extend he date of delivery without incurring any penalty and without prejudice to rights to recover all sums owing in respect of work performed. Where delays occur due to the action of the Purchaser, PPL reserves the right to extend the time of delivery by a similar period. PPL shall be entitled to make part delivery and part appropriation of the Goods. Under no circumstances does PPL accept liability for loss, damage or delay arising from the acts or omissions of the Purchaser.
7. INSPECTION AND RETURN OF GOODS The Purchaser shall inspect any Goods upon the time of delivery from PPL and shall within 5 business days after receipt from PPL give written notice to PPL of any alleged claim for short or wrongful delivery, damage, or for any other overt breach of Contract. If the Purchaser fails to give notice within the time stated then PPL shall be deemed to have in all such respects fulfilled the Contract Acceptance of Goods and return will not necessarily constitute a credit for same. Credit will only be given after examination of the Purchaser’s claim and an advice note clearly outlining the particulars warranting the return must accompany the Goods. A handling charge or a minimum of $50 will apply for return of Goods not resulting in a valid warranty credit. Where the Purchaser has arranged his own transport, the Purchaser shall be wholly responsible for any damage to the Goods during transportation.
8. TERMS OF PAYMENT (a) PPL’s terms are net and due for payment by the Purchaser within 7 Working days of the date of PPL’s invoice. Where payment is overdue, interest equal to the ruling overdraft bank rate, may be charged for the period when payment becomes due until payment is received and the Purchaser shall be liable for payment of such charges. (b) The charge for maintenance agreements shall be payable annually in advance. (c) PPL may at any time vary by notice to the Purchaser the Service Charge if the scope of the Services is varied at the request of the Purchaser. (d) PPL may at any time vary by notice to the Purchaser the Service Charge to recover the costs of any additional taxes, duties, levies or workplace requirements imposed by Local Government or Regulatory Authority. (e) The costs of any site induction, training or certification required by the Purchaser shall be charged to the Purchaser additional to the Service Charge. (f) The Service Charge for maintenance agreements shall be fixed for the first 12 months of the Agreement, and shall be increased by an amount equal to CPI for any subsequent 12 month period.
9. ACCESS In respect of provision of Goods – The purchaser shall provide PPL with unencumbered and unrestricted access for delivery, positioning and installation. In respect of provision of Services – POWER PROTECTION Power Protection Ltd – Terms & Conditions of Sale (a) The Purchaser shall provide PPL with unrestricted access to the System and adequate working space, heat, light, ventilation, electric power and outlets free of charge. (b) PPL reserves the right to raise an abortive visit charge if any visit is cancelled on less than 48 hours notice or if PPL is otherwise unable to gain access to the system. (c) PPL will make 3 attempts to schedule a planned maintenance visit. These will consist of 2 verbal attempts and 1 written attempt. Should PPL, through no fault of its own, fail to successfully arrange a visit, its liability to conduct this work will cease, no premium refund shall be provided and no liabilities shall arise to PPL out of any equipment malfunction.
10. PURCHASER’S RESPONSIBILITY In all cases in respect of Goods the Purchaser is responsible to provide any access, service, facilities, permits, approvals or licenses as may be necessary or required for performance of the work. In all cases in respect of Services the Purchaser – (a) is responsible for any reinstatement and/or redecoration to the Site made necessary by the carrying out of the Services; (b) is responsible for all costs, damages and expenses of whatever nature arising out of improper activation of the System; (c) is responsible for ensuring that the System complies with any enactment or other requirement of any competent authority; (d) shall comply with all agreed and statutory security, confidentiality, environmental and occupational health & safety requirements applicable to the provision of the Services. (e) shall at all times keep the system in proper environmental conditions as recommended by PPL; (f) shall use the System only in accordance with PPL instructions and follow PPL recommendations relating to the care and operation of the System; (g) shall notify PPL immediately of any change of use, structural changes or changes in condition of the Site which might affect the operation of the System; (h) shall notify PPL immediately on discovery of any defect in the System; (i) shall take all reasonable precautions to ensure the health and safety of PPL’s personnel whilst on Site, including ensuring the presence of the Purchaser’s personnel in the area where the System is located during the provision of the Services.
11. PERIOD AND TERMINATION (a) Unless the Agreement specifies a termination date, a maintenance agreement shall continue until terminated by either party giving to the other not less than 3 months written notice. (b) Either PPL or the Purchaser may, without prejudice to its other rights, terminate the Agreement at any time – I. If the other party is in breach of the Agreement (including any failure to pay money on the due date) whether or not any previous breach has been waived, or II. If the other party commits any act of bankruptcy or enters into liquidation or administration. (c) On termination of the Agreement by PPL under clause 8(b) above, or by the Purchaser, PPL shall be under no obligation to refund any prepaid Service Charge. If PPL terminates the Agreement for any other reason at any time other than the end of a 12 month agreement period, PPL will refund a proportion of the prepaid Service Charge pro rata to the number of months unexpired of the relevant 12 month period. (d) Orders for supply of Goods received and accepted by PPL shall not be subject to cancellation either wholly or partially without the PPL’s consent in writing. If such consent is given PPL shall be entitled to make as a condition of such consent a cancellation charge when it is in the opinion of PPL fair and reasonable or necessary to do so.
12. PASSING OF PROPERTY AND RISK Notwithstanding delivery of the Goods or part thereof, the property in the Goods including any Goods supplied as part of the Services shall remain in PPL’s possession until the Purchaser has paid the purchase price in full as well as any other payments due to PPL as herein before prescribed. The Goods are at the Purchaser’s risk from the occurrence of the passing of property to the Purchaser, the physical delivery of Goods to the Purchaser or the physical delivery of Goods to a carrier or other nominated by the Purchaser.
13. ASSIGNMENT The Agreement may not be assigned by either party without prior written consent of the other, except that either party may assign the Agreement to another company which is a subsidiary, associate company, or authorized service agent of that party.
14. PATENTS Where PPL has followed a design or instruction furnished or given by the Purchaser, the Purchaser shall indemnify PPL against all damages, penalties, costs and expenses to which PPL may become liable through any work required to be done in accordance with those instructions involving an infringement of a Patent Trademark Registered Design Copyright or Common Law Right.
15. CANCELLATION OF ORDERS Orders received and accepted by PPL shall not be subject to cancellation either wholly or partially without PPL’s consent in writing. If such consent is given PPL shall be entitled to make as a condition of such consent a cancellation charge when it is in the opinion of PPL fair and reasonable or necessary to do so.
16. DEFAULT BY PURCHASER If the Purchaser shall make default in or commit a breach of any of his obligations to PPL or if the Purchaser shall be a limited company, and any resolution or petition to wind up such company’s business shall be passed or presented, or if a receiver, receiver and manager or official manager of such company’s undertaking, property or assets or any part thereof shall be appointed then without prejudice to any other remedy to which PPL shall be entitled, if PPL shall not be under any liability in respect of any breach of contract which it shall have committed as at the date of the Purchaser’s said breach; (a) PPL shall be released from all liability whatsoever under the contract and all Goods and materials in its possession relating to this contract whether paid for by the Purchaser or PPL or otherwise shall be forfeited to PPL absolutely. (b) PPL may elect to carry out no further work pursuant to this contract in which event it shall be entitled to be paid forthwith for the full amount of the value of the work done and all materials supplied by it to the date of termination, or it may elect to complete the Goods or Services in which event it shall be entitled to be paid immediately upon completion for the full amount of the value of the work done and materials supplied. (c) In addition to forfeiture pursuant to the last preceding sub-paragraph of any lien to which it shall by law be entitled it shall have a general lien on all the Purchaser’s Goods and materials in its possession other than those relating to this contract whether paid for or not and including those left for repair or other treatment for the amount payable to if hereunder or on any other account and a right in the event of such amount not being paid to it on demand to sell such forfeited Goods and/or material and or such other Goods and/or material in Its possession by private contract or public auction in such way and manner as it shall think fit and to deduct from the net proceeds of such sale all monies due to it under this contract inclusive or all costs and expenses arising out of the Purchaser’s default and incidental to such sale including storage charges from the date of the Purchaser’s default and to pay to the Purchaser any balance remaining over and above the amount due to PPL PROVIDED ALWAYS that PPL shall not be liable for any loss or shortfall arising out of such sale and it shall remain entitled to recovery of all monies due to it under this contract notwithstanding the exercise of its rights aforesaid.
17. ARBITRATION If any dispute or disagreement shall arise between the Purchaser and PPL the same shall be submitted to a single arbitrator in case they may agree upon one or failing agreement to two arbitrators, one to be appointed by each party to the difference in accordance with and subject to the conditions of the Arbitration Act of the Country of New Zealand in which the quotation is issued or any statutory modification of reenactment thereof for the time being in force.
18. LAW The contract shall in all respects be construed to operate in conformity with the law of New Zealand in which the quotation is issued and the Purchaser agrees that the High Court or any Court having jurisdiction to hear an appeal therefore shall have jurisdiction to hear and determine all proceedings and disputes between PPL and the Purchaser relating to any matters arising under.