1.1. “Acqua Pools & Spas” shall mean Acqua Pools & Spas Limited 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 Acqua Pools & Spas.
1.3. “Products and services” shall mean:
1.3.1. all Products and services of the general description specified on the front of this agreement and supplied by Acqua Pools & Spas to the Customer; and
1.3.2. all Products and services supplied by Acqua Pools & Spas to the Customer; and
1.3.3. all inventory of the Customer that is supplied by Acqua Pools & Spas; and
1.3.4. all Products and services supplied by Acqua Pools & Spas and further identified in any invoice issued by Acqua Pools & Spas to the Customer, which invoices are deemed to be incorporated into and form part of this agreement; and
1.3.5. all Products and services that are marked as having been supplied by Acqua Pools & Spas or that are stored by the Customer in a manner that enables them to be identified as having been supplied by Acqua Pools & Spas.
The above descriptions may overlap but each is independent of and does not limit the others.
1.4. “Products and services” shall also mean all products ,goods and services provided by Acqua Pools & Spas to the customer, and shall include without limitation to the design, manufacture, build, supply, sale, service, maintenance installation of spa pools, pools, water features and filtration and all associated products and services and all charges for labour and work, hire charges, insurance charges, freight costs or any fee or charge associated with the supply of products and services by Acqua Pools & Spas to the customer.
1.5. “Price” shall mean the cost of the products and services as agreed between Acqua Pools & Spas and the customer subject to clause 4 of this contract.
2.1. Any instructions received by Acqua Pools & Spas from the customer for the supply of products and services shall constitute acceptance of the terms and conditions contained herein.
3. COLLECTION AND USE OF INFORMATION
3.1. The customer authorises Acqua Pools & Spas to collect, retain and use any information about the customer, or for the purpose of assessing the customer’s credit worthiness, enforcing any rights under this contract, or marketing any products and services provided by Acqua Pools & Spas to any other party.
3.2. The customer authorises Acqua Pools & Spas to disclose any information obtained to any person for the purposes set out in clause 3.1.
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 products and services shall be deemed to be sold at the current amount as such products and services are sold by Acqua Pools & Spas 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 products and services that is beyond the control of Acqua Pools & Spas between the date of the contract and delivery of the products and services.
5.1. Payment for products and services shall be made:
5.1.1. In full within 7 days of the date of the invoice (“the due date”); or
5.1.2. In the case of a Body Corporate, payment is due in full on or before the 20th day of the month following the date of the invoice (“the due date”).
5.2. Interest may be charged on any amount owing after the due date at the rate of 2.5% per month or part month.
5.3. Any expenses, disbursements and legal costs incurred by Acqua Pools & Spas 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 maybe required.
5.6. Progress payments may apply. No retentions will apply to residential contracts.
6.1. Where a quotation is given by Acqua Pools & Spas for products and services:
6.1.1. The quotation shall be valid for thirty (30) days from the date of issue and/or as agreed by Acqua Pools & Spas; and
6.1.2. The quotation shall be exclusive of goods and services tax unless specifically stated to the contrary.
6.2. Where products and services are required in addition to the quotation the customer agrees to pay for the additional cost of such products and services.
7.1. The Products and services remain at Acqua Pools & Spas’ risk until installation or delivery to the Customer.
7.2. Delivery of Products and services shall be deemed complete when Acqua Pools & Spas gives possession of the Products directly to the Customer or possession of the Products is given to a carrier, courier, or other bailee for purposes of transmission to the Customer.
7.3. The time agreed for delivery shall not be an essential term of this contract unless the Customer gives written notice to Acqua Pools & Spas making time of the essence.
8.1. The Customer authorises Acqua Pools & Spas to contract either as principal or agent for the provision of Products and services that are the matter of this contract.
8.2. Where Acqua Pools & Spas enters into a contract of the type referred to in clause 8.1 it shall be read with and form part of this agreement and the Customer agrees to pay any amounts due under that contract.
9. TITLE AND SECURITY (PERSONAL PROPERTY SECURITIES ACT 1999)
9.1. Title in any Products and services supplied by Acqua Pools & Spas passes to the Customer only when the Customer has made payment in full for all Products and services provided by Acqua Pools & Spas and of all other sums due to Acqua Pools & Spas by the Customer on any account whatsoever. Until all sums due to Acqua Pools & Spas by the Customer have been paid in full, Acqua Pools & Spas has a security interest in all products.
9.2. If the Products 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 Products and services shall remain with Acqua Pools & Spas until the Customer has made payment for all Products and services, and where those Products and services are mixed with other property so as to be part of or a constituent of any new Products and services, title to these new Products and services shall deemed to be assigned to Acqua Pools & Spas as security for the full satisfaction by the Customer of the full amount owing between Acqua Pools & Spas and Customer.
9.3. The Customer gives irrevocable authority to Acqua Pools & Spas to enter any premises occupied by the Customer or on which Products and services are situated at any reasonable time after default by the Customer or before default if Acqua Pools & Spas believes a default is likely and to remove and repossess any Products and services and any other property to which Products and services are attached or in which Products and services are incorporated. Acqua Pools & Spas 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. Acqua Pools & Spas may either resell any repossessed Products 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 Products and services and credit the Customer’s account with the invoice value thereof less such sum as Acqua Pools & Spas reasonably determines on account of wear and tear, depreciation, obsolescence, loss or profit and costs.
9.4. Where Products and services are retained by Acqua Pools & Spas pursuant to clause 9.4 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.
9.5. The following shall constitute defaults by the Customer:
9.5.1. Non payment of any sum by the due date.
9.5.2. The Customer intimates that it will not pay any sum by the due date.
9.5.3. Any Products and services are seized by any other creditor of the Customer or any other creditor intimates that it intends to seize Products and services.
9.5.4. Any Products and services in the possession of the Customer are materially damaged while any sum due from the Customer to Acqua Pools & Spas remains unpaid.
9.5.5. 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.
9.5.6. A Court judgment is entered against the Customer and remains unsatisfied for seven (7) days.
9.5.7. Any material adverse change in the financial position of the Customer.
9.6. If the Credit Repossession Act applies to any transaction between the Customer and Acqua Pools & Spas, the Customer has the rights provided in that Act despite anything contained in these terms and conditions of trade.
10. PAYMENT ALLOCATION
10.1. Acqua Pools & Spas may in its discretion allocate any payment received from the Customer towards any invoice that Acqua Pools & Spas 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 absense of any payment allocation by Acqua Pools & Spas, payment shall be deemed to be allocated in such manner as preserves the maximum value of Acqua Pools & Spas’ purchase money security interest in Products and services.
11.1. No claim relating to products and services will be considered unless made within seven (7) days of delivery.
11.2. No products will be accepted for return without Acqua Pools & Spas’ consent in writing.
12.1. The Consumer Guarantees Act 1993, the Fair Trading Act 1986 and other statutes may imply warranties or conditions or impose obligations upon Acqua Pools & Spas 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 Acqua Pools & Spas, Acqua Pools & Spas’ 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.
12.2. Except as otherwise provided by clause 12.1 Acqua Pools & Spas shall not be liable for:
12.2.1. Any loss or damage of any kind whatsoever including consequential loss whether suffered or incurred by the Customer or another person and whether in contract, or tort (including negligence), or otherwise and whether such loss or damage arises directly or indirectly from products and services provided by Acqua Pools & Spas to the Customer; and
12.2.2. The Customer shall indemnify Acqua Pools & Spas 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 Acqua Pools & Spas or otherwise, brought by any person in connection with any matter, act, omission, or error by Acqua Pools & Spas its agents or employees in connection with the products and services.
13.1. Acqua Pools & Spas warrants that Products and services are fit and suitable for the purpose for which they are required by the Customer. Acqua Pools & Spas will provide written warranties in respect of filters, pumps pools and spas.
14. CONSUMER GUARANTEES ACT
14.1. The guarantees contained in the Consumer Guarantees Act 1993 are excluded where the Customer acquires products and services from Acqua Pools & Spas for the purposes of a business in terms of section 2 and 43 of that Act.
15. PERSONAL GUARANTEE OF COMPANY DIRECTORS OR TRUSTEES
15.1. If the Customer is a company or trust, the director(s) or trustee(s) signing this contract, in consideration for Acqua Pools & Spas agreeing to supply Products 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 Acqua Pools & Spas the payment of any and all monies now or hereafter owed by the Customer to Acqua Pools & Spas and indemnify Acqua Pools & Spas 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.
16.1. Acqua Pools & Spas shall, without any liability, and without any prejudice to any other right it has in law or equity, have the right by notice to suspend or cancel in whole or in part any contract for the supply of Products and services or services to the Customer if the Customer fails to pay any money owing after the due date or the Customer commits an act of bankruptcy as defined in section 19 of the Insolvency Act 1967.
16.2. Any cancellation or suspension under clause 16.1 of this agreement shall not affect Acqua Pools & Spas’ claim for money due at the time of cancellation or suspension or for damages for any breach of any terms of this contract or the Customer’s obligations to Acqua Pools & Spas under this contract.
17. NEW ZEALAND JURISDICTION
17.1. The Customer agrees that the law of New Zealand will apply to this contract.
17.2. The Customer further agrees that Auckland, New Zealand will be the Court of jurisdiction in respect of any dispute between Acqua Pools & Spas and the Customer, which requires Court determination.
18.1. In the case of rent to buy agreements, these terms and conditions of trade are to be read together with any rent to buy agreement signed by the Customer.
18.2. Acqua Pools & Spas shall not be liable for delay or failure to perform its obligations if the cause of the delay or failure is beyond its control. This includes the failures by suppliers to supply product or services, adverse weather conditions, and in the disruption of systems through virus or terrorism.
18.3. Failure by Acqua Pools & Spas 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 Acqua Pools & Spas has under this contract.
18.4. 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, prejudiced or impaired.
18.5. Where these terms and conditions of trade are at variance with the order or instructions from the Customer these terms and conditions of trade shall prevail.
18.6. Any dispute between the parties is to be dealt with in accordance with the Arbitration Act 1996 or any alternative dispute resolution method at the sole discretion of Acqua Pools & Spas.
18.7. The Customer shall not assign all or any of its rights or obligations under this contract without the written consent of Acqua Pools & Spas.