Terms of Trade

  1. What is the purpose of this agreement?
    1. This agreement sets out the terms that apply to the relationship between you (and “your”) and ThermaCool NZ Limited T/A Advanced Air Solutionz (“we”, “us” and “our”).
  2. What information about you can we collect?
    1. You agree to provide us with and allow us to use information necessary to give effect to this agreement and provide you with the products and services (“your information”). We will not hold your information longer than required for the purposes of its collection.
    2. Unless your consent is withdrawn in writing, you agree to us disclosing any of your information: to give effect to or enforce our obligations under this agreement or additional agreement; when authorised by you or required by law; to assess your credit worthiness; and to market any of our products and services to another person or entity.
    3. We will not use your information unless we have reasonably ensured it is accurate, complete, relevant and not misleading. If we give your information to another entity we will do everything reasonably within our power to prevent unauthorised use or disclosure of your information.
    4. You may access any of your information and ask us to correct any mistakes in it.
  3. What are our products and services?
    1. “Products and services” and “product(s)” means and includes, without limitation, all goods, inventory, systems and units (whether separate, attached to something or performed work on) and services such as supply, installation, servicing, maintenance, labour and delivery and out of pocket expenses, provided to you by us and identified: in any account, finance agreement, application, order form, packing slip, wholesale list, email, supply request, quote, invoice, statement or other document issued by either party, which are deemed to be incorporated into and form part of this agreement; or as ours by marking or a manner of storage enabling them to be identified as ours.
  4. What is the price?
    1. The price is the cost of the products and services as agreed between you and us from time to time subject to GST and out of pocket expenses such as freight. If no price is stated, the price will be the cost that we provide the products and services at the time of your order.
    2. The price as determined by 4.1 is subject to reasonable changes at any time.
  5. What happens when we give you a quote?
    1. If we give you a quote for products and services: it will be valid for thirty (30) days from the date of issue, unless withdrawn or otherwise stated; the quote will be exclusive of all taxes, unless stated otherwise; you are solely responsible for the accuracy of information on which the quotation is based; you will be responsible for increased costs or receive the benefit of decreased costs resulting from any subsequent changes to the quote due to any inadequate or inaccurate information and request for additional products and services or alterations; and we have the right to alter the quote because of circumstances beyond our control or clerical or computer error.
  6. When and how do you pay us?
    1. You agree to pay us in full: on or before the stated payment due date as printed on our invoice (“the due date”); interest on any amount you owe after the due date at a rate of 2.5% per month or part month; any expenses, including debt collection and legal costs, that we incur as a result of enforcing any of our rights contained in this agreement; without set-off, deduction or counterclaim; and a deposit if required.
    2. You agree to us allocating or reallocating any payment received from you towards any invoice. If no allocation is made then it is deemed to be in such a way that preserves the maximum value of our purchase money security interest in the products.
    3. We may invoice by progress payments and payment claims under the Construction Contracts Act 2002.
  7. What warranties apply?
    1. Manufacturers’ warranties and guarantees and any written warranty given by us.
    2. If you are in trade and/or are a business, you agree that you and we contract out of the Fair Trading Act 1986 and Consumer Guarantees Act 1993 to the extent permissible by law.
    3. Samples shown to you may differ from products provided to you.
    4. We are not liable for delay or failure to perform our obligations if the cause is beyond our control.
    5. Subject to 7.1-7.4, if we are deemed liable to you for any loss or damage of any kind, arising from the provision of products and services to you, including consequential loss, whether suffered or incurred by you or another person or entity and whether in contract tort or otherwise, then you agree that our total liability is limited to the value of the products and services provided to you.
  8. What if you want to place/vary/cancel an order?
    1. All orders from you constitute a binding agreement subject to these terms. If you wish to cancel or vary an order and we have reasonably relied on your original instructions, you will still be responsible for full payment of the price of the order.
  9. What if an issue arises in relation to our products or services?
    1. If an issue relating to our services arises within 365 days of installation we will rectify the issue at no added cost, subject to: you notifying us within seven (7) days of discovery during the three hundred and sixty five (365) day period; you having used the product in accordance with the manufacturer’s/our instructions and the product having not been subject to abuse, neglect, misuse, accident or services of any unauthorised third party; and the issue not relating to general fair wear and tear.
    2. If an issue relating to a product arises and it is covered under warranty, we will arrange rectification, however you may be responsible for the price of our services for rectification.
    3. If an issue relating to unwarranted products arises, you will be responsible for the price of the products and services as determined under clause 4.
    4. Any product the subject of 9.1-9.3 must not be destroyed or removed from your premises until we have inspected the product or required the product be returned to us.
  10. What ownership and security rights do we have?
    1. We retain ownership of and hold a security interest in all products until you have paid us in full for all products and services provided to you. While we retain ownership, you will store products in such a way that they can be identified as provided by us.
    2. You agree that we hold security interest in all of your present and after acquired property and: authorise us to register a financing statement and charge on the Personal Property Securities Register, and provide all information and signatures necessary to effect the same; will not register a financing charge or statement or charge demand in respect of products without our prior written consent; waive your entitlement under s 148 of the Personal Property Securities Act 1999 (PPSA) to receive a copy of a verification statement where we have registered our interest; that both parties contract out of ss 114(1)(a), 133 and 134 of the PPSA; waive your rights as listed under s 107(2) of the PPSA; and to give us fourteen (14) days prior written notice of any proposed change in your name or details such as contact information.
    3. You agree that if you default under 12.1, we may exercise a general lien against any products in our possession.
    4. You agree that your failure to pay for goods and services by the due date gives rise to a legal or equitable estate or interest (“the interest”) in your land on which the goods and services were carried out and affixed and that the interest entitles us to register a caveat against your land. A caveat is a notice registered against the title of your land, which informs anyone who searches that title that we have a right to or interest in that land.
    5. We own all existing and new intellectual property rights connected to the products and services and brands associated with the same. You may use the products only if paid in full and for the purpose for which they were intended and supplied by us.
  11. When are we responsible for the products?
    1. We are responsible for the products until they are delivered to you or uplifted by you (where installation is not part of our services) or until we have installed the products.
    2. Delivery is complete when we give the products to you or another person/entity who will give the products to you or when we leave the products on your premises.
    3. The time and date stated for delivery is an estimate only and is not an essential term of our agreement. We may make partial deliveries of products listed in one order or invoice without added cost to you.
    4. Risk for the products lies with us in accordance with 11.1 or when ownership passes in accordance with 10.1, whichever comes first.
  12. When may we cancel this agreement?
    1. We have the right by notice to suspend or cancel any part of any agreement for the provision of products and services to you if you default by: failing to pay or indicating you will not pay any sum owing by the due date; any of your creditors seizing or indicating they will seize any products provided to you; products in your possession becoming materially damaged while any amount remains unpaid; being bankrupted, insolvent, under statutory management or put into liquidation; a receiver being appointed over or a landlord possessing any of your assets; a court judgement entered against you remaining unsatisfied for seven (7) days; breaching the terms of this agreement; and an adverse material change in your financial position.
    2. You agree that if you default and the default is not remedied within seven (7) days of occurrence, we may enter any premises occupied by you to inspect or retrieve any products. We may store and/or sell any products and credit the net sale proceeds to your account for the invoice value less adjustment for the condition of the products, depreciation and loss or profit.
    3. Cancellation or suspension will not affect our claims for any amount due at the time of cancellation or suspension, damages for any breach of your obligations under this agreement and any other legal rights we may have. Upon cancellation of this agreement any amount owed by you for work done up to and including the date of cancellation will become due and current orders terminate.
  13. Does a personal guarantee apply?
    1. If you are a director of a company or the trustee of a trust: in exchange for us agreeing to supply products and services and grant credit to the company or the trust, you also sign this agreement in your personal capacity, and jointly and severally personally undertake as principal debtors, to pay everything that the company or trust owes us, and to indemnify us against non-payment and/or default; and any personal liability of you as director or trustee will not exclude the company or trust from the liabilities and obligations contained in this agreement.
  14. What else is agreed?
    1. We may outsource (contract out) part of the work required to produce the products and services. You agree to pay for all amounts due in connection with the outsourcing.
    2. If we fail to enforce any of the terms of this agreement it will not be deemed to be a waiver of any of the rights or obligations we have under this agreement.
    3. If any of these terms are determined to be invalid, void, illegal or unenforceable, the validity, existence, legality and enforceability of the remaining terms will not be affected.
    4. This is the entire agreement superseding all prior agreements, representations and warranties. Any instructions we receive from you will be subject to this agreement.
    5. If any dispute arises between the parties either party must notify the other within seven (7) days or if the dispute relates to delivery within three (3) days of delivery. Any product the subject of a claim must not be destroyed or removed from the delivery address until we have inspected the product or required the product be returned to us.
    6. Documentation related to this agreement may be served on you by email.
    7. Any reasonable general change we make to these terms will be notified to you or published on our website, all other variations must be made by mutual agreement in writing.
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