Terms & Conditions
DEFINITIONS
- "The Fridge Warehouse Ltd " shall mean The Fridge Warehouse
Limited, or any agents or employees thereof. Any rental agreement
will also form part of these terms and conditions of trade. If
there is any conflict between these terms and conditions of trade
and any rental agreement then these terms and conditions of trade
shall prevail.
- "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 The Fridge Warehouse Ltd.
- "Goods " shall mean:
- all Goods of the general description specified on the front of
this agreement and supplied by The Fridge Warehouse Ltd to the
Customer; and
- all Goods supplied by The Fridge Warehouse Ltd to the Customer;
and
- all inventory of the Customer that is supplied by The Fridge
Warehouse Ltd; and
- all Goods supplied by The Fridge Warehouse Ltd and further
identified in any invoice issued by The Fridge Warehouse Ltd to the
Customer, which invoices are deemed to be incorporated into and
form part of this agreement; and
- all Goods that are marked as having been supplied by The Fridge
Warehouse Ltd or that are stored by the Customer in a manner that
enables them to be identified as having been supplied by The Fridge
Warehouse Ltd; and
- all of the Customer's present and after-acquired Goods that The
Fridge Warehouse Ltd has performed work on or to or in which goods
or materials supplied or financed by The Fridge Warehouse Ltd have
been attached or incorporated.
- The above descriptions may overlap but each is independent of
and does not limit the others.
- "Goods " shall also mean all goods, products, services and
advice provided by The Fridge Warehouse Ltd to the Customer and
shall include without limitation the sale and servicing of new and
used commercial refrigeration equipment and all associated Goods
and Services and all charges for labour, hire charges, insurance
charges, or any fee or charge associated with the supply of Goods
by The Fridge Warehouse Ltd to the Customer.
- "Price" shall mean the cost of the Goods as agreed between The
Fridge Warehouse Ltd and the Customer and includes all
disbursements eg charges The Fridge Warehouse Ltd pay to others on
the Customer's behalf subject to clause 4 of this contract.
ACCEPTANCE
- Any instructions received by The Fridge Warehouse Ltd from the
Customer for the supply of Goods shall constitute a binding
contract and acceptance of the terms and conditions contained
herein.
COLLECTION AND USE OF INFORMATION
- The Customer authorises The Fridge Warehouse Ltd 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 provided by The Fridge
Warehouse Ltd to any other party.
- The Customer authorises The Fridge Warehouse Ltd 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.
PRICE
- Where no price is stated in writing or agreed to orally the
Goods shall be deemed to be sold at the current amount as such
Goods are sold by The Fridge Warehouse Ltd at the time of the
contract.
- The price may be increased by the amount of any reasonable
increase in the cost of supply of the Goods that is beyond the
control of The Fridge Warehouse Ltd between the date of the
contract and delivery of the Goods.
PAYMENT
- Payment for Goods shall be made in full on or before the 20th
day of the month following the date of the invoice ("the due
date").
- Interest may be charged on any amount owing after the due date at
the rate of 2.5% per month or part month.
- Any expenses, disbursements and legal costs incurred by The
Fridge Warehouse Ltd 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.
- Receipt of a cheque, bill of exchange, or other negotiable
instrument shall not constitute payment until such negotiable
instrument is paid in full.
- A deposit may be required.
QUOTATION
- Where a quotation is given by The Fridge Warehouse Ltd for
Goods:
- Unless otherwise agreed the quotation shall be valid for thirty
(30) days from the date of issue; and
- The quotation shall be exclusive of goods and services tax
unless specifically stated to the contrary;
- Where Goods are required in addition to the quotation the
Customer agrees to pay for the additional cost of such Goods.
RISK
- The Goods remain at The Fridge Warehouse Ltd's risk until
delivery to the Customer.
- Delivery of Goods shall be deemed complete when The Fridge
Warehouse Ltd gives possession of the Goods directly to the
Customer or possession of the Goods is given to a carrier, courier,
or other bailee for purposes of transmission to the Customer.
- The time agreed for delivery shall not be an essential term of
this contract unless the Customer gives written notice to The
Fridge Warehouse Ltd making time of the essence.
- Where The Fridge Warehouse Ltd delivers Goods to the Customer by
instalments and The Fridge Warehouse Ltd fails to deliver or supply
one or more instalments the Customer shall not have the right to
cancel the contract but shall have the right to claim compensation
as a severable breach.
TITLE AND SECURITY (PERSONAL PROPERTY SECURITIES ACT 1999)
- Title in any Goods supplied by The Fridge Warehouse Ltd passes
to the Customer only when the Customer has made payment in full for
all Goods provided by The Fridge Warehouse Ltd and of all other
sums due to The Fridge Warehouse Ltd by the Customer on any account
whatsoever. Until all sums due to The Fridge Warehouse Ltd by the
Customer have been paid in full, The Fridge Warehouse Ltd has a
security interest in all Goods.
- If the Goods 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
shall remain with The Fridge Warehouse Ltd until the Customer has
made payment for all Goods, and where those Goods are mixed with
other property so as to be part of or a constituent of any new
Goods, title to these new Goods shall deemed to be assigned to The
Fridge Warehouse Ltd as security for the full satisfaction by the
Customer of the full amount owing between The Fridge Warehouse Ltd
and Customer.
- The Customer gives irrevocable authority to The Fridge Warehouse
Ltd to enter any premises occupied by the Customer or on which
Goods are situated at any reasonable time after default by the
Customer or before default if The Fridge Warehouse Ltd believes a
default is likely and to remove and repossess any Goods and any
other property to which Goods are attached or in which Goods are
incorporated. The Fridge Warehouse Ltd 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. The Fridge Warehouse Ltd may either
resell any repossessed Goods 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 credit the Customer's account with the invoice value
thereof less such sum as The Fridge Warehouse Ltd reasonably
determines on account of wear and tear, depreciation, obsolescence,
loss or profit and costs.
- Where Goods are retained by The Fridge Warehouse Ltd 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 PPSA.
- The following shall constitute defaults by the Customer:
- Non payment of any sum by the due date.
- The Customer intimates that it will not pay any sum by the due
date.
- Any Goods are seized by any other creditor of the Customer or
any other creditor intimates that it intends to seize Goods.
- Any Goods in the possession of the Customer are materially
damaged while any sum due from the Customer to The Fridge Warehouse
Ltd remains unpaid.
- The Customer is bankrupted or put into liquidation or a
receiver is appointed to any of the Customer's assets or a landlord
distains against any of the Customer's assets.
- A Court judgment is entered against the Customer and remains
unsatisfied for seven (7) days.
- Any material adverse change in the financial position of the
Customer.
- If the Credit Repossession Act applies to any transaction
between the Customer and The Fridge Warehouse Ltd, the Customer has
the rights provided in that Act despite anything contained in these
terms and conditions of trade.
SECURITY INTEREST FOR SERVICE PROVIDERS
- The Customer gives The Fridge Warehouse Ltd a security
interest in all of the Customer's present and after-acquired
property that The Fridge Warehouse Ltd has performed services on or
to or in which goods or materials supplied or financed by The
Fridge Warehouse Ltd have been attached or incorporated.
PAYMENT ALLOCATION
- The Fridge Warehouse Ltd may in its discretion allocate any
payment received from the Customer towards any invoice that The
Fridge Warehouse Ltd 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 The Fridge Warehouse Ltd,
payment shall be deemed to be allocated in such manner as preserves
the maximum value of The Fridge Warehouse Ltd's purchase money
security interest in the Goods.
LIABILITY
- The Consumer Guarantees Act 1993, the Fair Trading Act 1986
and other statutes may imply warranties or conditions or impose
obligations upon The Fridge Warehouse Ltd 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 The Fridge Warehouse Ltd, The Fridge Warehouse Ltd'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.
- Except as otherwise provided by clause 11.1 The Fridge Warehouse
Ltd shall not be liable for:
- 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 irrespective of whether such loss or
damage arises directly or indirectly from Goods provided by The
Fridge Warehouse Ltd to the Customer; and
- The Customer shall indemnify The Fridge Warehouse Ltd 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 The Fridge Warehouse Ltd or otherwise, brought by any person in
connection with any matter, act, omission, or error by The Fridge
Warehouse Ltd its agents or employees in connection with the
Goods.
WARRANTY
- Manufacturer's warranty applies where applicable.
- Any written warranty that The Fridge Warehouse Ltd provide to the
Customer will also form part of these terms and conditions of
trade.
- No representation, condition, warranty or premise expressed or
implied by law or otherwise applies to the Goods except where goods
are supplied or services provided pursuant to the Consumer
Guarantees Act 1993 or except where expressly stated in this
contract.
- The Fridge Warehouse Ltd does not provide any warranty that the
Goods are fit and suitable for the purpose for which they are
required by the Customer and shall not be liable if they are
not.
CONSUMER GUARANTEES ACT
- The guarantees contained in the Consumer Guarantees Act 1993
are excluded where the Customer acquires Goods from The Fridge
Warehouse Ltd for the purposes of a business in terms of section 2
and 43 of that Act.
HIRE OF EQUIPMENT
- Where equipment is hired from The Fridge Warehouse Ltd:
- The Customer shall not part with the possession of the
equipment and shall not sublet, or sell, or attempt to alienate the
equipment in any way, or deal with the equipment in any way that
may be prejudicial to The Fridge Warehouse Ltd.
- The Customer shall be liable for any damage to or loss of the
equipment hired however caused and in the event of any equipment
being damaged, lost or stolen the Customer shall pay to The Fridge
Warehouse Ltd the cost of making good the repair to the equipment
or the cost of replacing the equipment whichever is the
lesser.
- The Customer shall on request by The Fridge Warehouse Ltd
advise of the whereabouts of any hired equipment and gives The
Fridge Warehouse Ltd irrevocable licence to enter any premises
within its control for the purposes of inspecting, repairing,
testing or removing the hired equipment and further if the Customer
fails to pay any monies owing after the due date The Fridge
Warehouse Ltd may enter any premises and take possession and remove
the hired equipment.
- The Customer shall take proper care of and use the equipment in
a manner or to such an extent that a reasonable Customer would and
according to any manufacturer's specifications and instructions if
any given by the supplier AND shall maintain the equipment in a
good and clean condition PROVIDED THAT any repair work necessary
shall be notified to The Fridge Warehouse Ltd and executed by The
Fridge Warehouse Ltd and for such purpose The Fridge Warehouse Ltd
shall be entitled to possession of the equipment. The Customer will
be liable for any repair or replacement costs if any hired
equipment is misused; and
- The Customer shall be liable for the costs of cleaning
equipment returned in a dirty condition AND unless otherwise agreed
in writing shall be responsible for the delivery and return of the
equipment; and
- Without prejudice to any other remedies available to The Fridge
Warehouse Ltd and notwithstanding any period of hire specified, The
Fridge Warehouse Ltd may terminate this hire contact at any
time.
PERSONAL GUARANTEE OF COMPANY DIRECTORS OR TRUSTEES
- If the Customer is a company or trust, the director(s) or
trustee(s) signing this contract, in consideration for The Fridge
Warehouse Ltd agreeing to supply Goods 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 The Fridge Warehouse Ltd the payment of any
and all monies now or hereafter owed by the Customer to The Fridge
Warehouse Ltd and indemnify The Fridge Warehouse Ltd 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.
MISCELLANEOUS
- The Fridge Warehouse Ltd shall not be liable for delay or
failure to perform its obligations if the cause of the delay or
failure is beyond its control.
- Failure by The Fridge Warehouse Ltd 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 The Fridge Warehouse
Ltd 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,
prejudiced or impaired.
- The client shall not assign all or any of its rights or
obligations under this contract without the written consent of The
Fridge Warehouse Ltd.