1. What are these terms and conditions?
1.1. These terms and conditions apply when you (“you” and “your”) instruct Mainsail Electronics Ltd (“we”, “us” and “our”) to provide you with services.
1.2. When we accept any instructions received from you for the supply of services, or when you accept our quote (including online), a binding contract is created between us for the supply of the services the subject of those instructions or that quote. These terms and conditions form part of that contract.
1.3. They will apply at all times during our ongoing relationship, including to any instructions from you for additional services or a variation to the scope of services.
2. What are our services?
In these terms and conditions “services” means and includes, without limitation:
2.1. all advice, design, and installation services;
2.2. call products and materials supplied by us; and
2.3. the scope of all services set out in any quotation or estimate.
3. What is the price?
3.1. The price of the services is as set out in our quote or estimate (or if we haven’t provided a quote or estimate, as set out in our invoice).
3.2. We may require you to pay a deposit before we commence the services. This will usually be 50% of the price set out in our quote or estimate, but where we do not hold an item in stock or we cannot return an item to our supplier, we may request payment in full before commencing the services.
3.3. When services are required in addition to those outlined in our quotation or estimate (be it by request or variation, including variation due to unforeseen circumstances), you agree to pay for the additional cost of such services, charged at our normal rate.
4. When must you pay us?
You agree that:
4.1. payment of our invoice is due on the 2nd business day after the date of the invoice (“the due date”);
4.2. our invoices may be forwarded to you by email;
4.3. if you fail to pay us by the due date, we may charge interest on any amount you owe us after the due date at the rate of 2.5% per month or part month; and
4.4. you are liable to pay any costs, including debt collection and legal costs, that we may incur enforcing any of our rights contained in these terms and conditions.
5. What happens when we give you a quotation or an estimate for services?
When we give a quotation or an estimate for services:
5.1. unless otherwise agreed, the quotation or estimate shall be valid for thirty (30) days from the date of issue;
5.2. if we provide an estimate and the final price is likely to exceed the estimate by more than 15%, we will endeavour to let you know this as soon as reasonably possible;
5.3. when services are required in addition to the services outlined in our quote or estimate (see also condition 3.3 above), you agree to pay for the additional cost of such services.
6. What security rights do we have?
6.1. Until you have paid us in full for our services, we retain ownership of all products and materials supplied by us and are entitled to lawfully repossess all products and materials supplied by us.
6.2. Further, pursuant to the Personal Property Securities Act 1999 (PPSA), you grant us a security interest in all products and materials supplied by us to secure your obligation to pay the price for the services and any other amount payable under these terms. We may register or otherwise perfect our security interest and you waive the right to receive a copy of any verification statement under s148 of the PPSA.
7. What warranties apply?
7.1. We warrant to you that the services will be free from material defects for the period, as set out in our quote or estimate, after we have provided the services. If no period is set out in our quote or estimate, that period will be 12 months.
7.2. If we breach the above warranty, your remedies shall be limited to:
(a) in respect of defective products or materials supplied by us, repair or replacement (at the discretion of the manufacturer) of the defective products or materials; and
(b) in respect of any other aspect of the services, the correction or re-performance of the defective services.
7.3. If clause 7.2(a) only applies, we may charge you our costs of repairing or replacing the defective products or materials (e.g. installation costs at our usual rates) if the manufacturer’s warranty (in our reasonable opinion) excludes reimbursement to us of those costs.
7.4. Where the manufacturer of products or materials has provided a warranty to us, we will use all reasonable endeavours to pass on the benefit of such warranty in full.
7.5. Except as expressly set out in these terms, and to the maximum extent permitted by law, all representations, conditions and warranties (whether express or implied, statutory or otherwise, and including warranties as to the merchantable quality or fitness for any particular purpose of the services or any part of them) are expressly excluded.
7.6. You and we acknowledge that, where the services or any part of them are being acquired for the purposes of a business, the provisions of the Consumer Guarantees Act 1993 (CGA) do not apply to the supply of the services or these terms and:
(a) you and we are, and the services are supplied and acquired, in trade
(b) you and we agree to contract out of the provisions of the CGA; and
(c) it is fair and reasonable that you and we are bound by this clause 7.6.
8. What is the limitation on our liability?
8.1. We will not be liable (whether liability arises in contract, tort (including negligence), equity or otherwise) to you or any other person for any consequential loss or damage, or loss of profits or revenue or data suffered by you or any other person. Any liability we have to you will not exceed, in aggregate, the total amount paid by you for the services.
8.2. We shall have no liability for any defect in respect of the provision (or non-provision) of the services which, in whole or in part, is caused by or arises because of any of the following:
(a) fair wear and tear;
(b) deterioration, misuse or vandalism;
(c) lack of proper maintenance or repair by you;
(d) any error or inaccuracy in, or omission of, information provided by you (including where requested by us);
(e) defects in any products and/or services provided by you, your agents or employees;
(f) any act or omission (whether negligent or not) of you or any other party not under our control;
(g) any delay or failure if such delay or failure is due to any circumstances beyond our control.
9. Who owns intellectual property rights?
We (or our licensors) retain ownership of all intellectual property rights, entitlements and interests created by us or incorporated in or associated with, our services.
10. What rights do we have to cancel this contract?
10.1. In addition to any other entitlement to cancellation that we may have, we may, by notice to you, suspend or cancel the contract for the supply of services if you fail to pay any money owing to us by the due date or otherwise breach these terms.
10.2. Any cancellation or suspension will not affect our claim for money due at the time of cancellation or suspension.
11. Does a personal guarantee apply?
If you are a company, the director(s) signing this contract, in consideration for us agreeing to supply services, also sign this contract in their personal capacity, and jointly and severally personally undertake as principal debtors, to pay everything that the company owes us, and to personally indemnify us against non-payment. Any personal liability of a company director will not exclude the company from the liabilities and obligations contained in this contract.
12. What also are you agreeing to?
12.1. We are not liable for any loss or damages incurred by you, if the delay or failure to perform services was caused by circumstances beyond our control.
12.2. The time agreed for completion of our services is not an essential term of our contract with you.
12.3. If we fail to enforce any of these terms and conditions, that shall not constitute a waiver of any of the rights or obligations we have pursuant to our contract with you.
12.4. If any of these terms and conditions shall be invalid, void, or illegal or unenforceable, the validity, existence, legality and enforceability of the remaining terms and conditions shall not be affected, prejudiced, or impaired.
12.5. If any dispute arises between us, then we both agree to make every effort to resolve the dispute amicably and informally and to give due consideration to informal resolution methods, such as mediation if necessary.
12.6. The contract between us is subject to New Zealand law and the New Zealand courts have exclusive jurisdiction in relation to any matters arising from it.