Terms Of Trade Of Warkworth Whiteware

PART A: OVERVIEW OF THESE TERMS

These Terms of Trade apply to all Products and Services that we supply to you. At Warkworth Whiteware Limited ensuring our Terms are transparent and easy to understand is important to us. If you have any questions or are unsure about anything, please contact us.

To make these Terms easy to use, we:

(a) have set out a ‘Dictionary’ in Part H, which explains the specific meaning, for the purposes of these Terms, of the capitalised words used in these Terms; and

(b) have included summaries / outlines for each Part in blue boxes – these are

1. Introduction

1.1 These Terms set out all of the terms and conditions that apply to Products and Services that we supply to you.

1.2 Any other terms and conditions will not apply unless expressly approved in writing by us for a particular Order.

1.3 We may update these Terms on notice to you in writing. Our updated Terms will apply to all Services you order after we have notified you that we have updated our Terms.

PART B: PRODUCTS AND SERVICES

Part B sets out details about placing Orders. It also sets out the process that applies if there are any issues with an Order or if an Order is cancelled.

2. Order process

2.1 You may order Products and Services from us in accordance with our order processes that we advise to you at any time.

2.2 All Orders are subject to acceptance by us. We may accept an Order (in whole or in part) by issuing an invoice for the applicable Products and Services, delivering the Products and Services or otherwise confirming the Order in writing.

2.3 We are under no obligation to enquire as to the authority of any person placing an Order on your behalf.

2.4 You may request variations to Orders. However, acceptance is at our discretion and is subject to our approval in writing, in accordance with our process for variations that we advise to you.

2.5 We may require variations to the Order as a result of unforeseen circumstances discovered before or during the provision of the Services which are beyond our control. These variations will be submitted to you for approval, and you shall be required to respond to any variation submitted by us within 10 Business Days. Failure to do so will entitle us to add the cost of the variation to the Order. Payment for all variations must be made in full at the time of their completion.

3. Delivery of Products and Supply of Services

3.1 We will use reasonable efforts to deliver Products and provide Services on the Delivery Date specified in the relevant Order. However, unless expressly agreed otherwise, the Delivery Date is indicative only.

3.2 You may collect the Products at our premises or we will deliver the Products and provide the Services at the delivery location set out in the relevant Order or any other location agreed with you in writing.

3.3 If you request that we leave the Products outside our premises for collection or to deliver the Products to an unattended location, then the Products shall be left at your sole risk. In the event that the Products are lost, damaged or destroyed then replacement of the Products shall be at your expense.

3.4 Subject to clause 15, if the delivery location is at your premises, you must provide our Representatives with suitable access to your premises during normal business hours, together with any assistance reasonably required by our Representatives to deliver the Products and perform the Services.

4. Supply of Products

4.1 Clauses 4 and 5 applies if your Order relates to Products.

4.2 We may deliver Orders in instalments (unless agreed otherwise).

4.3 If you delay, fail or refuse to accept delivery of Products, the Products will be treated as delivered when we were willing and able to deliver the Products. Without affecting any other rights we may have, we may charge you for any reasonable expenses or additional costs incurred by us as a result of the delay, failure or refusal to accept delivery (including storage).

4.4 Risk in the Products passes to you on delivery.

4.5 You are responsible for ensuring that any instructions, recommended uses, applications and installation methods are followed for Products and any cautions and/or warnings are observed.

5. Defects

5.1 You must inspect the Products on the date of delivery and notify us of any alleged defect or damage or incorrect products or quantity (Defects). Upon request, you must allow us to inspect, or return to us, any defective or damaged Products. You should notify us of any alleged Defects as soon as possible if any to enable us to confirm that any Defects occurred before delivery to you.

5.2 If there are any Defects in an order, the remedies set out in clause 22.1 will apply.

6. Cancellation

6.1 Either party may cancel an Order by written notice if the other party:

(a) commits a material breach of these Terms which is not remedied within 20 Business

Days of written notice of the breach from the other party; or

(b) suffers an Insolvency Event.

6.2 If we are unable to the deliver any Products or Services to you, due to reasons beyond our

reasonable control, we may cancel the Order (in whole or in respect of any instalment) by

giving written notice to you. We will repay you any amount you have paid to us in advance

for the relevant Products and/or Services. We will not be liable for any loss or damage arising

from such cancellation.

6.3 We will not accept cancellation of any Order for Products made to your specifications, or for

non-stocklist items after the Order has been accepted by us.

PART C: PRICE

Part C sets out terms relating to the Price for the Products and Services.

7. Price

7.1 The Price for Products and Services will be:

(a) calculated in accordance with our current price list as at the date you submit the relevant Order; or

(b) calculated based on our standard hourly rate as at the date of the Services are provided; or

7.2 We may update our price list and standard hourly rates at any time on notice to you in advance. Any such updates will only apply to Orders placed after the effective date of the

update.

7.3 Unless otherwise stated, the Price does not include GST.

7.4 We may charge you for freight, insurance, installation, disbursements and any applicable taxes, duties and levies, in addition to the Price.

7.5 Where we provide a quotation, proposal or estimate:

(a) unless otherwise specified, the quotation, proposal or estimate is valid for 7 days from the date of issue and may be subject to such further conditions as are expressly set out in the quote, estimate or pricing;

(b) we may withdraw the quotation, proposal or estimate at any time before you accept it or we accept an Order by notice in writing to you; and

(c) the quotation, proposal or estimate will be exclusive of any applicable additional amounts referred to in clause 7.4.

PART D: PAYMENT TERMS

Under these Terms, we may supply Products and Services to you on credit. It is very important to us that you pay us in full by the due date for payment. The following clauses provide additional protections for us to reflect that arrangement, including terms that will apply if there are any delays or disputes relating to payments.

8. Payment

8.1 You must pay us all Amounts Owing to our bank account (notified to you and updated at any time) or any other payment method that we agree with you.

8.2 Payment shall be:

(a) for payments in cash, on completion of the Services; or

(b) 20 days the month following; or

(d) no later than 7 days from the date of the invoice (unless otherwise stated on the invoice), and

(e) in full without deduction, withholding, set-off or counterclaim.

8.3 If you have any dispute relating to an invoice issued by us, you:

(a) must notify us of that dispute in writing within 3 days from the date of invoice (after that period, unless there is a manifest error, you will be deemed to have accepted the invoice); and

(b) will only withhold payment of the amount in dispute and will, upon resolution of any dispute, immediately pay the balance (if any) due to us.

8.4 We and you each agree to promptly deal with any disputed invoices and, where possible, to resolve disputes before the due date for payment.

9. Credit terms and repayment obligations

9.1 The supply of Products and Services to you on credit is subject to our prior approval. We may use the services of credit reporters and debt collection agencies (in accordance with clause 16.2).

9.2 You must notify us immediately:

(a) if you suffer an Insolvency Event. Any Amount Owing will, whether or not due for payment, immediately become due and payable if an Insolvency Event occurs; or

(b) if you are a company and there is a material change in your effective management or ownership.

10. Deposit and guarantee

10.1 We may require that you pay us in advance, or pay a deposit, or provide a guarantee, before we supply Products or Services, as security for any Amount Owing.

11. Rights to recover Products

11.1 We retain ownership of all Products that we supply you until we have received payment in full of the Amount Owing.

11.2 You may resell or use any Products in the ordinary course of your business before ownership of the Products has passed to you. However, you will be deemed to hold the proceeds of sale or use (in whatever form) on trust for us to the extent of the Amount Owing.

11.3 If any Amount Owing is overdue or if an Insolvency Event occurs, you must return Products to us on request, or permit us to enter any premises where Products may be stored to repossess those Products.

12. Late payments

12.1 If payment in full of any Amount Owing (which is not subject to a genuine dispute) is not made to us on the due date, we may:

(a) suspend, or cancel (in accordance with clause 6.1(a)), the provision of any or all Products and Services to you;

(b) cancel any rebates or discounts (whether or not previously credited);

(c) charge you interest at a rate of 2.5% per month on the balance of the outstanding amount from the due date of payment until the date the outstanding amount is paid, accruing daily and charged weekly; and

(d) if the Amount Owing is not paid on the due date and is overdue, but after a calendar month, the Amount Owing shall be eligible for debt collection.

13. Costs of recovering Amounts Owing

13.1 You must reimburse us for any costs and expenses we incur to recover any Amount Owing, or exercise our rights to recover Products, including any debt collection fees or commission

and full legal expenses.

14. Security interests

14.1 You acknowledge that these Terms create, in our favour, a security interest (as defined in the PPSA) in all Products and the proceeds of any Products (in accordance with clause 11) (Security Interest), to secure the payment by you to us of the Amount Owing.

14.2 You undertake to promptly sign any further documents which you may reasonably require to enable us to perfect and maintain the perfection of the Security Interest (including by registration of a financing statement).

14.3 The parties agree to contract out of the provisions of the PPSA as set out in section 107 of the PPSA to the extent permitted by law and you waive your rights to receive a verification statement relating to any Security Interest. Where you have rights in addition to Part 9 of the PPSA, those rights will continue to apply.

14.4 We reserve the right to require a guarantee, or any other additional security (at your cost), as security for payment, before we provide Products or Services to you.

PART E: COMPLIANCE AND INFORMATION

Part E sets out the provisions relating to health and safety, privacy and, confidentiality

15. Health and safety

15.1 Each party will comply with the Health and Safety at Work Act 2015 (HSW Act), including all applicable regulations under the HSW Act, as well as all applicable standards and codes of practice relating to health and safety. In addition, each party will comply with the other party’s pre-notified and reasonable health and safety policies when on the party’s premises.

15.2 You must notify us of any known hazards arising from your premises to which a work or any person may be exposed while on the premises and ensure that your workplace is without risks to the health and safety of any person.

15.3 Each party must consult, co-operate with and co-ordinate activities with all other persons who have a health and safety duty in relation to the same matter in providing the Products and/or Services (including in connection with the delivery of the Products and/or Services).

16. Privacy

16.1 We may collect, use and share Personal Information:

(a) for the purposes of the performance of our obligations or exercise of our rights under these Terms; and

(b) in accordance with the Privacy Act 2020 and our Privacy Policy. This may include sharing Personal Information with our Related Companies.

16.2 We may use the services of credit reporters and debt collection agencies. We may provide your Personal Information to those agencies in order to use their services. Information disclosed to credit reporters (including default information) will be held by them and used to provide credit reporting services.

16.3 If you provide us with any information about a third party (including a Representative), or authorise us to collect that information, you confirm that you are authorised by the individual concerned to provide their Personal Information to us or authorise the collection of information about them in accordance with this clause 16. You also confirm that you have informed the individual of their rights to access and request correction of Personal Information.

16.4 You (if you are an individual) and your Representatives have the right to access, and request correction of, any of your Personal Information held by us.

16.5 Further details are set out in our Privacy Policy, available on our website.

17. Confidentiality

17.1 Each party must keep confidential all Confidential Information.

17.2 Nothing in clause 17.1 prevents a party from disclosing Confidential Information if disclosure is:

(a) required by law, or Regulator (but only to the extent required);

(b) is reasonably required to enable a party to perform its obligations or exercise its rights under these Terms; or

(c) to a Related Company or Representatives on a ‘need to know’ basis, provided that person is under a duty to keep the Confidential Information confidential in accordance with these Terms.

17.3 We may also use any information that we collect in connection with the Products and Services, in accordance with applicable law, to improve our Products and Services, for statistical and research purposes, and for general information purposes including to provide industry and market insights. You grant us a non-exclusive, perpetual, irrevocable, royalty free licence to use and sub-licence information for this purpose. Any information that we disclose or publish will be in a fully aggregated and de-identified form (to ensure that it does not identify any individuals and your information remains confidential).

PART F: DISPUTE RESOLUTION AND LIABILITY

If a dispute arises under these Terms, we must follow the process in this part F to resolve the matter. If a claim arises under these Terms, any amount payable by you or us will be imited by the maximum liability and exclusions set out in this Part F.

18. Dispute Resolution

18.1 If a dispute arises out of or in connection with these Terms, either party may give a notice to the other setting out the details of the dispute (Dispute Notice).

18.2 Following receipt of a Dispute Notice:

(a) a Representative of each of us (with authority to settle the dispute) will meet, within 10 Business Days, to try to resolve the dispute;

(b) if the dispute is not resolved within 10 Business Days of our Representatives meeting (or if the meeting does not take place, for any reason, within 10 Business Days of the date of a Dispute Notice), the dispute will be referred to the senior manager of each party (if applicable), who will try to resolve the dispute within a further 10 Business Days; and

(c) if the dispute is not resolved by our respective Representatives in accordance with clause 18.2(b), then either party may commence court proceedings.

18.3 This clause 18 does not restrict either party from applying to a court for interim measures or any other form of urgent relief at any time. However, neither party may commence any other form of court proceeding without first following the procedure set out in this clause 18.

18.4 Each party must continue to perform its obligations in these Terms, despite the existence of a dispute, subject to the termination rights set out in these Terms.

19. Consumer Guarantees Act and Fair Trading Act

19.1 If the Products and Services include any Consumer goods or services, nothing in these Terms will affect any rights you may have as a consumer under the Consumers Guarantees Act 1993 (CGA) and the Fair Trading Act 1986 (FTA).

19.2 If you are acquiring, or hold yourself out as acquiring, the Products and Services in trade, to the extent permitted by law:

(a) for the purposes of section 5D of the FTA, the parties are contracting out of sections 9, 12A, 13 and 14(1) of the FTA;

(b) you are contracting out of the CGA (to the extent that the CGA would otherwise apply to any matters covered by these Terms); and

19.3 [If you are acquiring any Products for the purpose of resupply in trade, you undertake that

you will:

(a) contract out of the CGA to the maximum extent permitted by law in your contracts with your own customers; and

(b) procure that your customers, and each other person in the distribution chain thereafter, contract out of the CGA to the maximum extent permitted by law in their contracts with customers.

You will indemnify us against any liability or cost incurred by us as a result of your breach of this clause 19.3.

20. Warranties

20.1 We warrant that all Products and Services are free from material defects in materials and workmanship. However, this warranty will not cover any defect or damage to the extent that

it is caused by:

(a) any fault or defect in our Products or Services resulting from any of your (or your Representatives) act or omissions (outside of the ordinary use of the Products or

Services); or

(b) minor deviations in specification, measurements, colour, weight, size or strength of the Products.

20.2 To the fullest extent permitted by law (including as set out in clause 19.1), except as expressly set out in these Terms, we expressly exclude all warranties, representations,

descriptions, statements, terms or conditions (whether express or implied) whether under statue, law, trade, custom or otherwise that would (but for this clause) apply to the Products

and Services including all warranties relating to the suitability for resale, quality, or fitness for any particular purpose, of our Products or Services.

21. Third party suppliers

21.1 If you request and authorise us to arrange the provision of Products or Services directly to you by a third party supplier (whether or not such arrangement involves us contracting as

your agent), to the extent applicable, these Terms will apply to our Services in arranging such supply, provided that we exclude all liability in connection with the supply of Products

and Services to you directly by a third party supplier. You agree to pay any commission or other payments due to us in accordance with these Terms.

22. Limitation of liability

22.1 To the extent permitted by law, our total liability under or in connection with these Terms and the Products and Services is limited to, at our option:

(a) in the case of Products, any one or more of the following:

(i) the replacement of the Products or the supply of equivalent products;

(ii) the repair of the Products;

(iii) the payment of the cost of replacing the Products or of acquiring equivalent products; or

(iv) the payment of the cost of having the Products repaired.

(b) in the case of Services:

(i) supplying the Services again; or

(ii) the payment of the cost of having the Services supplied again.

22.2 If we have any liability under or in connection with these Terms, to the maximum extent permitted by law:

(a) our total aggregate liability to you for any loss, damage or liability arising out of or in connection with these Terms will be limited to the Price paid by you to us for the applicable Products and/or Services; and

(b) we will not be liable for any:

(i) indirect, special or consequential loss or damage whatsoever; or

(ii) loss of profits, revenue, data, goodwill, customers or opportunity or loss of or damage to reputation.

22.3 The limitations and exclusions on liability in this clause 22 will apply irrespective of the legal basis for the applicable claim, including contract, equity, tort (including negligence) or statute.

22.4 In no circumstances will we have any liability whatsoever under or in connection with these

Terms:

(a) for the acts or omissions of your Representatives or any third party;

(b) for any act or omissions of performance in accordance with your instructions (or instructions from your Representatives); or

PART G: GENERAL

Part G describes miscellaneous provisions necessary for the proper operation of these

23. General

23.1 Governing Law: These Terms are governed by and to be construed in accordance with the laws of New Zealand and each party submits to the exclusive jurisdiction of the courts of North Shore, Auckland, New Zealand.

23.2 Previous Agreements: These Terms constitute the entire agreement of the parties about its subject matter and supersedes any previous written agreements and written representations.

23.3 Sub-contracting: We may subcontract the performance of our obligations (including to a Related Company), on the basis we remain solely liable to you for the performance of our obligations.

23.4 Assignment: You must not assign, novate or transfer your rights or obligations under these Terms without our prior written consent (which may be withheld in our sole discretion). We may assign these Terms to any other person on notice to you (provided that we will request your prior approval (not to be unreasonably withheld or delayed) if the assignment could have any material adverse effect on you). Without limiting the foregoing, we may assign to any other person all or part of the Amount Owing by you to us.

23.5 Amendments: Any amendment to these Terms must be in writing signed by each party, except where stated otherwise in these Terms or where we are required to make changes to ensure compliance with applicable laws (in which case we notify you of the changes in writing).

23.6 Force majeure: We will not be liable to you for any failure or delay in performing our obligations under these Terms where such failure or delay is caused by events or circumstances beyond our reasonable control, including any strike, lockout, labour dispute, delay in transit, embargo, epidemic, pandemic, accident, emergency, order of government or other authority or act of God.

23.7 Waiver: A single or partial exercise or waiver of a right relating to these Terms does not prevent any other exercise of that right or the exercise of any other right.

23.8 Survival: Any provision of these Terms, which is by its nature a continuing obligation, will survive termination.

23.9 Rights of Third Parties: These Terms are not intended to confer a benefit on any person other than the parties to these Terms.

23.10 Relationship: We will provide Products and Services to you as an independent service provider. Nothing in these Terms creates any partnership, joint venture or employment relationship between the parties.

23.11 Non-exclusive: These Terms are not exclusive and do no impose any restriction on us providing Products and Services to, or you purchasing any product or services from, any other person.

23.12 Counterparts: These Terms may be executed in any number of counterparts (including by electronic signature or by email exchange of .pdf copies) which together will constitute the one instrument.

PART H: DICTIONARY

Part H sets out a Dictionary, to define the capitalised terms used in these Terms.

24. Definitions

Amount Owing means any amount owed by you to us, from time to time, including the Price, any applicable amounts referred to in clause 7.4, any interest payable by you, your liability under these Terms and any enforcement costs incurred by us in seeking payment of any Amounts Owing by you. Business Day means Monday to Friday, excluding public holidays in New Zealand. Confidential Information means all information that could be reasonably regarded in the circumstances as confidential, including information which relates to the business, interests or affairs of a party, the terms of use, the Products and Services (as applicable), but

excludes information which is:

(a) in the public domain, other than as a result of a breach of these Terms;

(b) in the possession of a party prior to the commencement of these Terms without any obligation of confidentiality; and

(c) is independently developed or acquired by a party prior to the commencement of these Terms without relying on information which would itself be Confidential Information. Consumer has the meaning given to that term in the Consumers Guarantees Act 1993. Delivery Date means the date for delivery of the Products and/or Services, as specified in the Order. Equipment means all Equipment including any accessories supplied on hire by us to you (and where the context so permits shall include any supply of Services). The Equipment shall be as described on the Order. Insolvency Event means, in relation to a party, any step is taken toward any of the following steps, or any of the following steps has occurred:

(a) the primary, or all, of its business activities being suspended or ceasing;

(b) the presentation of an application for its liquidation;

(d) the appointment of a liquidator, receiver, statutory manager, or similar official;

(e) the suspension or threatened suspension of the payment of its debts;

(f) the enforcement of any security against the whole or a substantial part of its assets;

(g) if you are an individual, anything having a similar effect to any of the events specified above happens in relation to you; or

(h) any other insolvency event or proceedings analogous to any of the foregoing occurs in any relevant jurisdiction, in each case, unless it takes place as part of a solvent reconstruction, amalgamation, merger or consolidation. Order means an Order for Products or Services that you submit to us, and we approve, in accordance with clause 2. Personal Information has the meaning given to that term in the Privacy Act 2020.

PPSA means the Personal Property Securities Act 1999. Price means the Price payable, in accordance with clause

7.1. Products means any Products (and associated Services) supplied by us to you at any time, including the Products specified in an Order. Regulator means any authority, commission, government department, court, tribunal, or similar having regulatory or supervisory authority over the parties or any of the Products and/or Services. Related Company has the meaning given to it in the Companies Act 1993, read as if a

reference to company was a reference to any body corporate of any jurisdiction. Representatives means directors, officers, employees, agents and contractors of the relevant party. Services means any Services supplied by us to you at any time, including the Services specified in an Order. Specific Terms means the terms (if any) that are included in Part I to these Terms. Terms means these Terms of Trade (including any Specific Terms outlined in Part I), as may be amended from time to time, each Order and any additional terms expressly agreed in accordance with clause 1.2 (if applicable). We or us means the supplier of Products and Services, Warkworth Whiteware Limited. You or your means the customer purchasing Products and Services from us.

25. Interpretation

In these Terms, unless the context otherwise requires:

(a) headings are for convenience only and do not affect interpretation;

(b) a reference to legislation includes all regulations, orders, instruments, codes, guidelines or determinations issued under that legislation or and any modification, onsolidation, amendment, re-enactment, replacement or codification of it;

(d) the words “include” or “including”, or similar expressions, are to be construed without limitation;

(e) a reference to a party to includes that party’s successors and permitted assigns and substitutes; and

(f) a word importing the singular includes the plural and vice versa.

PART I: SPECIFIC TERMS

Part I details additional specific terms that apply to your order of the Products and Services.

26. Payment by third parties

26.1 Where you are a tenant (and therefore not the owner of the land and premises where the Products are to be repaired and/or installed, then you warrant that full consent has been obtained from the owner and/or property manager for us to repair or install the Products on the owner’s land and premises. You acknowledge and agree that they shall be personally liable for full payment of the Price for all Services provided under these Terms and to indemnify us against any claim made by the owner of the premises (howsoever arising) in relation to the repair and/or installation of the Products and the provision of any related Services by us except where such claim has arisen because of the negligence of us when servicing and/or installing the Products.

26.2 You agree that you shall upon request from us provide evidence that:

(a) you are the owner of the land and premises upon which the Services are be undertaken; or

(b) where you are a tenant, that you have the consent of the owner for the Products to be assessed, repaired and/or installed on the land and premises upon which the Services are be undertaken; and

(c) you shall be required to provide contact details of the owner of the appliance for the appliance to be assessed, repaired and/or installed on the premises upon where the Services are to be undertaken.

26.3 In the event that the Products and/or Services provided by us are the subject of an insurance claim that you have made, then you shall be responsible for the payment of any monies payable to the insurance company and agree to honour your obligation for payment for such transactions invoiced by us and shall ensure payment is made by the due date irrespective of whether the insurance claim is successful.

27. Additional charges

27.1 You acknowledge and agree that:

(a) in the event that you request us to provide the Services urgently, that may require our staff to work outside normal business hours (including, but not limited to, working, through lunch breaks, weekends and/or Public Holidays, or put aside other work that would have been previously arranged) then we reserve the right to charge additional urgent service costs established before attending the work, and any Products used, unless otherwise agreed between both parties;

(b) once the Services have commenced, you shall be liable for all costs irrespective of whether the appliance is sold or not, unless such costs are accepted by the new owner. The said new owners shall be required to sign our documentation to acknowledge acceptance of all costs incurred in relation to the Services;

(c) where you authorise us and/or our employee/s to undertake Services up to the value of $500.00 plus GST for labour and Products on a ‘do and charge’ basis, payment will be due on completion of the job. Over and above this threshold the Services will only be done upon prior approval of you;

(d) where we are requested to attend to repairs and the fault is deemed to be user generated and not a faulty appliance, we reserve the right to charge a minimum assessment fee for inspections plus any additional Products and/or Services that may be required to complete the repair;

(e) further to clause 27.1(c), where the appliance is assessed at our workshop but not repaired, we reserve the right to charge additional costs for the reassembly of the appliance for collection and/or delivery to another address nominated by you; or

(f) where it is necessary for the appliance to be returned to the workshop for further inspection and/or repair, it is agreed, that prior to removal, confirmation from you will first be obtained;

(g) we will not charge you for a trade apprentice who is only observing on site. Where the trade apprentice is required to assist in the Services, (including, but not limited to, us observing WorkSafe guidelines, etc.) then this shall be charged for as an extra in accordance with clause 2.5.; and

(h) we reserve the right to vary the Price where additional Services are required as result of unforeseen circumstances (including, but not limited to, limitations to accessing the site or appliance, further faults which are found upon disassembly and/or further inspection, soiled appliances that require cleaning, vermin or insect damage , etc.). Any variations to the Price will be dealt with in accordance with the provisions of clause 2.5.

28. Information we provide

28.1 Any advice, recommendation, information or assistance provided by us in relation to the Products, Equipment and Services supplied is given in good faith to you, or your agent and is based on our own knowledge and experience and shall be accepted without liability on our part. Where such advice or recommendations are not acted upon then we shall require you or your agent to authorise commencement of the Services in writing. We shall not be liable in any way whatsoever for any damages or losses that occur after any subsequent commencement of the Services. In accordance with clause 22, we offer no warranty in regard to the aforementioned.

29. Information we require

29.1 You acknowledge and agree that in the event that any plans, specifications or information provided by you is inaccurate:

(a) we accept no responsibility or liability for any loss, damages, or costs however resulting from these inaccurate plans, specifications or other information;

(b) we are entitled to suspend or terminate the supply of Products or Services to you if there is a material change to the scope of Services as a result of inaccurate plans, specifications or other information;

(c) you shall be liable for costs of de-mobilisation or re-mobilisation of any plant, equipment or staff to or from the site, upon the re-commencement of the Services at the site, if applicable; and

(d) we will not be liable to you for any loss or damage you suffer because we have exercised our rights under this clause.

29.2 You warrant that any structures to which the Products are to be affixed are able to withstand the installation of the Products and, where applicable, that any electrical connections (including, but not limited to, meter boxes, main switches, circuit breakers, and electrical cable) are of suitable capacity to handle the Products once installed. If, for any reason we reasonably form the opinion that your property is not safe for the installation of Products to proceed, then we shall be entitled to delay installation of the Products until we are satisfied that it is safe for the installation to proceed.

29.3 We shall not be liable for any loss or damage caused in accessing the work area or appliance beyond reasonable control of us (including, but not limited to, kitchen kick boards, modifications made to the appliances, tiling, paintwork, walls, etc.) which we may have to break into or disturb in the performance of the Services, unless due to the negligence of us. It shall be your responsibility to reinstate the work area or appliance to the original state.

30. Your acknowledgements

30.1 You acknowledge and agree that:

(a) where you are in a commercial food handling industry, it is your responsibility to ensure that regular temperature checks are conducted. We shall not be held liable for any damages to property, food spoilage, or injury to persons as a result of consequential defects in or the non-operation of equipment and/or its accessories or performance related problems with any Products where they have not been used and/or maintained in accordance with our and/or the manufacturers’ recommendations;

(b) vermin and insect damage to appliances are not covered by the manufacturer’s or repair warranty;

(c) appliances that are deemed to be excessively soiled may incur an additional cleaning fee. Furthermore, we reserve the right to decline the Services where it has been deemed that the appliance contains any toxic substances (including, but not limited to, hazardous or biohazardous contamination, etc.), and/or has been contaminated by vermin or insect infestation. At our discretion, all agreed charges shall be due and payable;

(d) if we have been requested you to diagnose a fault and/or identify parts that requires technician attention, all costs involved will be charged to you irrespective of whether or not the repair goes ahead;

(e) we shall be entitled to:

(i) retain any components replaced during the provision of the Services; and

(ii) where it has been deemed that the item is not to be repaired, the right to retain all proceeds obtained from the sale of such components to any parts recycler or salvage yard. All costs for scrappage and third party testing costs will be borne by you and will be shown as variations.

(f) where we have performed temporary repairs that we:

(i) offer no guarantee against the reoccurrence of the initial fault, or any further damage caused;

(ii) will immediately advise you of the fault and shall provide you with an estimate for the full repair required.

(g) we are only responsible for components that are replaced by us and does not at any stage accept any liability in respect of previous goods and/or services supplied by any other third party that subsequently fail and found to be the source of the failure.

31. Site requirements

31.1 You shall permit us to enter other rooms on the property for the purposes of finding and/or using items on the property (including, but not limited to, the bathroom for the purposes of washing up, towels for mopping up any leaks, access to adjacent rooms, locating any power sources for the purpose of turning off power to the appliance, etc.) during the course of the Services.

31.2 In the event that we are is called to an onsite repair job and the site is inaccessible, then we reserve the right to charge a fee for the site visit including any stand down time that we are present onsite, which shall be charged in addition to the Price in accordance with clause 2.5.

32. Equipment hire

32.1 The Equipment shall at all times remain the property of ours and is returnable on demand by us. In the event that Equipment is not returned to us in the condition in which it was delivered we retain the right to charge you the full cost of repairing the Equipment. In the event that Equipment is not returned at all we shall have right to charge you the full cost of replacing the Equipment.

32.2 You shall:

(a) keep the Equipment in your own possession and control and shall not assign the benefit of the Equipment nor be entitled to a lien over the Equipment;

(b) not alter or make any additions to the Equipment including, but without limitation, altering, make any additions to, defacing or erasing any identifying mark, plate or number on or in the Equipment or in any other manner interfere with the Equipment;

(c) keep the Equipment, complete with all parts and accessories, clean and in good order as delivered, and shall comply with any maintenance schedule as advised by us to you.

32.3 You accept full responsibility for the safekeeping of the Equipment and you agree to insure, or self-insure our interest in the Equipment and agree to indemnify us against physical loss or damage including, but not limited to, the perils of accident, fire, theft and burglary and all other usual risks and will effect adequate Public Liability Insurance covering any loss, damage or injury to property or persons arising out of the use of the Equipment. Further you will not use the Equipment nor permit it to be used in such a manner as would permit an insurer to decline any claim.

32.4 Notwithstanding the above clause, immediately on request by us, you will pay:

(a) any lost hire charges we would have otherwise been entitled to for the Equipment, under this, or any other hire agreement;

(b) any insurance excess payable in relation to a claim made by either you or us in relation to any damage caused by, or to, the hire Equipment whilst the same is hired by you and irrespective of whether charged by your insurers or ours.

32.5 Return of the Equipment (“Return”) will be completed when the:

(a) Equipment is returned by you to our place of business; or

(b) we take back possession of the Equipment once collection by us is affected.