Terms of Trade
Our terms of trade set out what we will deliver to you and what we expect from you.
We believe in providing great service and we take pride in our standards. The terms of trade below serve as the criteria for all of the work we carry out.
When you ask Franks Electrical Ltd to carry out work on your behalf, you agree to uphold your obligations under these terms of trade.
If you have any questions please contact us on 02102517890 or email stuart@frankselectrical.co.nz.
If you are unhappy with the work we provide, or have any problems or comments, please let us know immediately. We will do our best to fix any problems right away. If you do not give us feedback or if you delay payment, it makes it difficult for us to put things right.
We take pride in what we do and would love for you to use us again and tell your friends. You can be sure that we want you to get the outcome you are after, as much – if not more- than you do.
Parking Permits/Tolls/Paid Parking
If in the course of undertaking work for you, we are required to pay for parking or any other vehicle travel costs, these will be passed on to you.
Travel to the Job Site
We allow up to 30 minutes travel time to your site. This cost is covered in the service/vehicle fee.
Cancellations/Rescheduling Appointments
Payment
Deposits
Progress Invoices
Disputed Invoices
Unpaid Accounts
If payment remains outstanding for over 20 days from the invoice due date a charge of 5% compounding interest on a monthly basis will be charged.
Debt Collection costs may be added to invoices that remain outstanding for over 20 days from the due date.
Defined Terms
1.1“the Electrician” means Franks Electrical Ltd, its successors and assigns or any person acting on behalf of and with the authority of Franks Electrical Ltd.
1.2Customer” means the person/s or entity being provided Works as specified in any invoice, document or order, and if there is more than one Customer is a reference to each Customer jointly and severally. The Customer includes any person or entity that the Customer introduces to the Electrician as their duly authorised representative. The Electrician may take instructions from the duly authorised representative as if they came directly from the Customer. The Customer may revoke this authorisation at any time by providing notice to the Electrician in writing of this revocation.
1.3“Works” means all works, services or Materials supplied by the Electrician to the Customer from time to time (where the context so permits the terms ‘Works’ or ‘Materials’ shall be interchangeable for the other).
1.4“Price” means the Price payable for the Works as agreed between The Electrician and the Customer in accordance with clause 3 below.
2.1 Upon the Customer accepting a quote, placing an order for or accepting delivery of any Works the Customer is taken deemed to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions
2.2 The Customer accepts and acknowledges its obligation to provide all contract Works insurance (for work where this is applicable- structural renovations, and/or extensions for example) unless otherwise agreed to in writing prior to commencement of the Works.
2.3 The supply of Materials by the Electrician to the Customer for accepted orders is subject to availability and if, for any reason, Materials are not or cease to be available, The Electrician reserves the right to vary the Price with alternative Materials as per clause 3.3. The Electrician also reserves the right to halt all Works until such time as The Electrician and the Customer agree to such changes.
3.1 At the Electrician’s sole discretion, the Charges shall be, either:
(a) in accordance with any quote provided by the Electrician;
(b) as indicated on any invoice provided by the Electrician to the Customer; or
3.2 Subject to clause 3.3, the Charges as at the date of provision of the Services, according to the Electrician’s written quote to the Customer, which will be valid for the period/s stated therein.
3.3 The Electrician reserves the right to change the Price:
(a) if a variation to the Materials which are to be supplied is requested; or
(b) if a variation to the Works originally scheduled (including any applicable plans or specifications) is requested; or
(c) where additional Works are required due to the discovery of hidden or unidentifiable difficulties (including, but not limited to, hard rock barriers below the surface, iron reinforcing rods in concrete, hidden pipes and wiring in walls or poorly prepared surfaces etc) which are only discovered on commencement of the Works; or
(d) in the event of increases to the Electrician in the cost of labour or materials which are beyond The Electrician’s control.
3.4 Time for payment for the Works being of the essence, the Price will be payable by the Customer on the date/s determined by the Electrician, which may be:
(a) on completion of the Works; or
(b) by way of progress payments in accordance with the Electrician’s specified progress payment schedule. Such progress payment claims may include the reasonable value of authorised variations and the value of any Materials delivered to the worksite but not yet installed;
(c) the date specified on any invoice or other form as being the date for payment; or
(d) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Customer by the Electrician.
3.5 Payment will be made by electronic/online banking, or by any other method as agreed to between the Customer and the Electrician.
4.1 Subject to clause 4.2 the Electrician will ensure that the Works start as soon as it is reasonably possible or as otherwise as advised to the Customer.
4.2 The Works commencement date will be put back and the completion date extended by whatever time is reasonable in the event that the Electrician claims an extension of time (by giving the Customer written notice) where completion is delayed by an event beyond The Electrician ’s control, including but not limited to any failure by the Customer to:
4.2.1 make a selection; or
4.2.2 have the site ready for the Works; or
4.2.3 notify The Electrician that the site is ready; or
4.3 where the Works are delayed by either the Customer or any other third party.
4.4 The Electrician may deliver the Works by separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.
4.5 Any time or date given by the Electrician to the Customer is an estimate only. The Electrician shall not be liable for any loss or damage whatsoever due to failure by The Electrician to deliver the Works (or any part of them) promptly or at all, where due to circumstances beyond the reasonable control of the Electrician.
4.6 Any recommendations, advice, assistance, or information provided by the Electrician is provided in good faith and the Electrician shall not be liable in any way for any damage, loss or other costs in relation to the Customer or their agent or other contractors reliance on the recommendations, advice, assistance or information. The Customer, their agent or contractors take these recommendations, advice, assistance, or information at their own risk and using their own judgement.
5.1 All customary building industry tolerances shall apply to the dimensions and measurements of the Materials unless the Electrician and the Customer agree otherwise in writing.
5.2 The Electrician shall be entitled to rely on the accuracy of any plans, specifications and other information provided by the Customer or the Customers representatives or contractors.
5.3 If any reference to the position of any electrical installations is removed or covered up by the Customer or the Customers contractors, then the Electrician shall not be responsible for any damage caused in relation to the locating of the installations. In this instance the installations will be at the sole discretion of the Electrician.
5.4 Any additional costs caused by the Customer not providing an acceptable plan or scope of work, will be the responsibility of the Customer.
5.5 If the Customer requests the Electrician to decide on the positing of any electrical installations the Customer shall be deemed to have accepted the positioning of such.
5.6 The Electrician will require at least (14) days’ notice of any required completion date. The Electrician will use their best endeavors to meet such deadlines but will not be in any way liable in relation to such deadlines not being met.
6.1 The customer must provide the area of the Works clear from all furniture and obstructions. If the Electrician has to move anything from the area of the works, if the Electrician chooses to do so, this will be done at the sole risk of the Customer and any damage to the Customers property will not be the responsibility of the Electrician.
6.2 The Customer shall ensure that the Electrician has clear and free access to the work site at all times to enable them to undertake the works. The Electrician shall not be liable for any loss or damage to the site (including, without limitation, damage to pathways, driveways and concreted or paved or grassed areas) unless it is due to the negligence of the Electrician
6.3 The Customer is responsible for any materials or products that they supply. Any additional costs incurred because the materials provided are not fit for purpose for any reason including but not limited to bring the wrong:
(a) Size; (b) Colour; (c) Rating; (d)standard, (e)quality; (f) colour and finish; will be the Customers responsibility.
7.1 The Electrician and the Customer agree that ownership of the Materials shall not pass to the Customer until:
7.1.1 the Customer has paid the Electrician all amounts owing to the Electrician; and
7.1.2 the Customer has met all of its other obligations to the Electrician.
7.2 Receipt by The Electrician of any form of payment other than cash shall be deemed to be received by the Electrician once they have cleared funds in their Bank account that cannot be reversed.
7.3 Risk for the materials shall move to the Customer as soon as they accept delivery.
7.4 It is further agreed that:
7.4.1 until ownership of the Materials passes to the Customer in accordance with clause 7.1 the Customer is only a bailee of the Materials and unless the Materials have become fixtures must return the Materials to the Electrician on request.
7.4.2 the Customer holds the benefit of the Customer’s insurance of the Materials on trust for the Electrician and must pay to the Electrician the proceeds of any insurance in the event of the Materials being lost, damaged or destroyed.
7.4.3 the production of these terms and conditions by The Electrician shall be sufficient evidence of the Electrician’s rights to receive the insurance proceeds direct from the insurer without the need for any person dealing with the Electrician to make further enquiries.
7.4.4 the Customer must not sell, dispose, or otherwise part with possession of the Materials other than in the ordinary course of business and for market value. If the Customer sells, disposes or parts with possession of the Materials then the Customer must hold the proceeds of any such act on trust for the Electrician and must pay or deliver the proceeds to the Electrician on demand.
7.4.5 the Customer should not convert or process the Materials or intermix them with other goods but if the Customer does so then the Customer holds the resulting product on trust for the benefit of the Electrician and must sell, dispose of or return the resulting product to the Electrician as it so directs.
7.4.6 unless the Materials have become fixtures the Customer irrevocably authorises the Electrician to enter any premises where the Electrician believes the Materials are kept and recover possession of the Materials.
7.4.7 The Electrician may recover possession of any Materials in transit whether or not delivery has occurred.
7.4.8 the Customer shall not charge or grant an encumbrance over the Materials nor grant nor otherwise give away any interest in the Materials while they remain the property of The Electrician.
7.4.9 The Electrician may commence proceedings to recover the Price of the Materials sold notwithstanding that ownership of the Materials has not passed to the Customer.
7.4.10 Goods will only be accepted for return with the prior approval of the Electrician. Freight and all other costs associated with the return of goods will be at the Customer’s expense unless otherwise agreed in writing by the Electrician.
8.1 The Customer agrees that the interest created in these terms in the materials is a security interest within the meaning of the Personal Property Securities Act 1999 (“PPSA”). The Electrician shall have the right to register such interest with the Personal Property Securities Register.
8.2 Provide any information or sign any additional document to allow the Electrician to register its interest on the Personal Property Security Register.
8.3 The Customer will reimburse the Electrician for any costs associated in the registration of the financing statement.
8.4 Nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms and conditions.
8.5 The Customer waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA.
8.6 The Customer waives its right to receive a verification statement in accordance with section 148 of the PPSA.
8.7 The Customer shall unconditionally ratify any actions taken by the Electrician under clauses 8.1 to 8.6.
9 Hazardous Substances
9.1 If the Electrician or anyone else identifies materials around the area that the works are being completed that they suspect may be hazardous, toxic or otherwise a danger to the Electrician, including but not limited to asbestos, then it will be the Customers responsibility to have the substance tested and if necessary removed. Until the Customer has provided evidence to the Electricians that the substance is not dangerous or has been removed by a suitably qualified person, the Electrician may take any steps that they see necessary including refusing to complete any further works.
1201 As permitted by law the Electrician provides no warranty as to the quality or suitability of the Materials for any purpose. Any implied warranty is expressly excluded. The Electrician shall not be liable or responsible for any loss suffered or caused by the materials in any way whatsoever.
10.2 Subject to the conditions of warranty set out in clause 10.3 the Electrician warrants that if any defect in any workmanship of the Electrician becomes apparent and is reported to the Electrician within twelve (12) months of the date of delivery (time being of the essence) then will either (at the Electricians’ sole discretion) replace or remedy the workmanship.
10.3. The conditions applicable to the warranty given by clause 10.2 are:
(a) the warranty shall not cover any defect or damage which may be caused or partly caused by or arise through:
(i) failure on the part of the Customer to properly maintain any Materials; or
(ii) failure on the part of the Customer to follow any instructions or guidelines provided by the Electrician; or
(iii) any use of any Materials otherwise than for any application specified on a quote or order form; or
(iv) the continued use of any Materials after any defect becomes apparent or would have become apparent to a reasonably prudent operator or user; or
(v) fair wear and tear, any accident or act of God.
(b) the warranty shall cease and the Electrician shall thereafter in no circumstances be liable under the terms of the warranty if the workmanship is repaired, altered or overhauled without the Electrician’s consent.
(c) in respect of all claims the Electrician shall not be liable to compensate the Customer for any delay in either replacing or remedying the workmanship or in properly assessing the Customer’s claim.
10.4 For Materials not manufactured by the Electrician, the warranty shall be the current warranty provided by the manufacturer of the Materials. The Electrician shall not be bound by nor be responsible for any term, condition, representation or warranty other than that which is given by the manufacturer of the Materials.
10.5 Where the Customer has supplied materials for the Electrician to complete the Works, the Customer acknowledges and accepts responsibility for the suitability of purpose, quality and any faults inherent in the materials. The Electrician shall not be responsible for any defects in the materials, any loss or damage to the materials (or any part thereof), howsoever arising from the use of materials supplied by the Customer.
10.6 The Electrician accepts no responsibility for any damage or performance related problems with any Materials where they have not been used and/or maintained in accordance with the Electrician’s and/or the manufacturers’ recommendations.
11 Consumer Guarantees Act 1993
11.1 If the Customer is acquiring Materials for the purposes of a trade or business, the Customer acknowledges that the provisions of the Consumer Guarantees Act 1993 do not apply to the supply of Materials by the Electrician to the Customer.
12 Dispute Resolution
12.1 All disputes and differences between the Customer and the Electrician touching and concerning this agreement will be attempted to be resolved with good faith negotiations. If the dispute or difference can still not be resolved through good faith negotiations, it shall be referred to arbitration under a single arbitrator agreed upon by both parties. Failing agreement, by an arbitrator appointed by the president of the New Zealand Law Society for the time being. The arbitration is to be carried out in accordance with provisions of the Arbitration Act 1996.
13 Default and Consequences of Default
13.1 The Electrician may charge interest on overdue invoices daily from the date when payment becomes due, until the date of payment, at a rate of five percent (5%) per calendar month compounding monthly.
13.2 The Electrician may charge the Customer for, and the Customer must indemnify the Electrician from, all costs and expenses incurred by the Electrician in the collection of unpaid sums under this Agreement or otherwise taking action to enforce the terms of this agreement. This includes but is not limited to legal costs on a full solicitor client basis.
13.3 Without prejudice to any other remedies the Electrician may have, if at any time the Customer is in breach of any obligation (including those relating to payment) under these terms and conditions, the Electrician may suspend or terminate the supply of Works to the Customer. The Electrician will not be liable to the Customer for any loss or damage the Customer suffers because the Electrician has exercised its rights under this clause.
13.4 Without prejudice to the Electrician’s other remedies at law the Electrician shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to the Electrician shall, whether or not due for payment, become immediately payable if:
13.4.1 any money payable to the Electrician becomes overdue, or in The Electrician’s opinion the Customer will be unable to make a payment when it falls due;
13.4.2 the Customer becomes insolvent or bankrupt, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
13.4.3 a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer.
14 Compliance with Laws
14.1 The Customer and the Electrician shall comply with the provisions of all statutes, regulations and bylaws that may be applicable to the works.
14.2 Unless otherwise agreed the Customer shall obtain any consents that may be required for the works.
14.3 The Customer will be responsible to ensure that the site where the works are to take place will comply with any occupational health and safety laws relating to building/construction sites to the satisfaction of the Electrician. Until the Electrician is satisfied that the site meets all health and safety requirements, they will not commence work.
15 Insurance
15.1 The Electrician will hold public liability insurance of at least $5 million. It is the Customers responsibility to ensure that they are
reporting agency for the purposes of providing or obtaining a credit reference, debt collection or notifying a default by the Customer.
16.1. Where the Electrician has designed, drawn, written plans or a schedule of Works, or created any products for the Customer, then the copyright in all such designs, drawings, documents, plans, schedules and products shall remain vested in the Electrician, and shall only be used by the Customer at the Electrician’s discretion. Under no circumstances may such designs, drawings and documents be used without the express written approval of the Electrician.
16.2. The Customer warrants that all designs, specifications or instructions given to the Electrician will not cause the Electrician to infringe any patent, registered design or trademark in the execution of the Customer’s order and the Customer agrees to indemnify the Electrician against any action taken by a third party against the Electrician in respect of any such infringement.
16.3 The Customer agrees that the Electrician may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings, plans or products which the Electrician has created for the Customer.
17.1 If the Electrician fails to enforce any term or provision contained in these terms and conditions or any other Agreement or contract between the Electrician and the Customer, it shall not be treated as a waiver of that term or provision. Such waiver will not affect the Electrician’s right to enforce such term or provision.
17.2 The Agreement is governed by, and must be interpreted in accordance with, the laws of New Zealand and is subject to the jurisdiction of the Courts of New Zealand
17.3 The Electrician shall be under no liability whatsoever to the Customer for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by the Electrician of these terms and conditions (alternatively The Electrician ’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Works).
17.4 The Customer shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Customer by the Electrician nor to withhold payment of any invoice because part of that invoice is in dispute.
17.5 The Electrician may engage or sub-contract all or any part of its rights and obligations under these terms and conditions without the Customer’s consent.
17.6 The Customer shall give the Electrician not less than fourteen (14) days prior written notice of any proposed change of ownership of the Customer and/or any other change in the Customer’s details (including but not limited to, changes in the Customer’s name, address, contact phone or fax number/s, or business practice). The Customer shall be liable for any loss incurred by the Electrician as a result of the Customer’s failure to comply with this clause.
17.7 These terms and conditions may be amended by the Electrician at any time. If any changes are made to these terms and conditions the Electrician will notify the Customer of such changes in writing. The changes will not take effect until the Customer has been notified of the change. By instructing the Electrician to undertake further works the Customer will be deemed to have accepted the changes.
17.8 Neither party shall be liable for any default under these terms and conditions due to any act of God, pandemic, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.
17.9 The Customer warrants that it has the power to enter into this agreement and has obtained all necessary authorisations to allow it to do so, it is not insolvent and that this agreement creates binding and valid legal obligations on it.
17.10 Any illegality, unenforceability or invalidity of a provision of the Agreement does not affect the legality, enforceability or validity of the remaining provisions of the Agreement.
Franks Electrical in Auckland offers installations, repairs, and maintenance for all electrical needs.
© 2024 Franks Electrical. Serving Auckland including Pukekohe, Pokeno, Manurewa.
