Terms & Conditions
- 1. DEFINITIONS
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
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
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
- 2. ACCEPTANCE
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
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.
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. PRICE
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
- 5. PAYMENT
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
5.5 A deposit may be
- 6. QUOTATION
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
6.1.3 Realcold reserve the
right to alter the quotation because of circumstances beyond its
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. RISK
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
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)
8.6.7 Any material adverse
change in the financial position of the Customer.
- 9. SECURITY INTEREST FOR SERVICE
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
- 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
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. LIABILITY
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
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. WARRANTY
14.1 Manufacturer's warranty applies
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
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
- 18. MISCELLANEOUS
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,