Terms Of Engagement

  1. Definitions
    1. “Contract” means the terms and conditions contained herein, together with any Quotation, order, invoice or other document or amendments expressed to be supplemental to this Contract.
    2. “Phoenix” means Phoenix Elevators 2010 Limited T/A Phoenix Elevators, its successors and assigns or any person acting on behalf of and with the authority of Phoenix Elevators 2010 Limited T/A Phoenix Elevators
    3. “Client” means the person/s, entities or any person acting on behalf of and with the authority of the Client requesting Phoenix to provide the Works as specified in any proposal, quotation, order, invoice or other documentation, and:
      1. if there is more than one Client, is a reference to each Client jointly and severally; a
      2. if the Client is a partnership, it shall bind each partner jointly and severally; an
      3. if the Client is a part of a Trust, shall be bound in their capacity as a trustee; and
    4. includes the Client’s executors, administrators, successors and permitted assigns.
    5. “Works” means all Works  (including consultation, manufacturing and/or installation services) or Products supplied by Phoenix to the Client at the Client’s request from time to time (where the context so permits the terms ‘Works’ or ‘Products’ shall be interchangeable for the other).
    6. "Confidential Information” means information of a confidential nature whether oral, written or in electronic form including, but not limited to, this Contract, either party’s intellectual property, operational information, know-how, trade secrets, financial and commercial affairs, contracts, client information (including but not limited to, “Personal Information” such as: name, address, D.O.B, occupation, driver’s license details, electronic contact (email, Facebook or Twitter details), medical insurance details or next of kin and other contact information (where applicable), previous credit applications, credit history) and pricing details
    7. “Cookies” means small files which are stored on a user’s computer.  They are designed to hold a modest amount of data (including Personal Information) specific to a particular client and website, and can be accessed either by the web server or the client’s computer. If the Client does not wish to allow Cookies to operate in the background when ordering from the website, then the Client shall have the right to enable/disable the Cookies first by selecting the option to enable / disable provided on the website, prior to ordering Works via the website. 
    8. “Price” means the Price payable (plus any Goods and Services Tax (“GST”) where applicable) for the Works as agreed between Phoenix and the Client in accordance with clause 5 below.
  2. Acceptance
    1. The Client is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Client places an order for or accepts delivery of any Works.
    2. In the event of any inconsistency between the terms and conditions of this Contract and any other prior document or schedule that the parties have entered into, the terms of this Contract shall prevail.
    3. Any amendment to the terms and conditions contained in this Contract may only be amended in writing by the consent of both parties.
    4. The Client acknowledges and accepts that:
    5. the supply of Works on credit shall not take effect until the Client has completed a credit application with Phoenix and it has been approved with a credit limit established for the account; an
    6. in the event that the supply of Works request exceeds the Client’s credit limit and/or the account exceeds the payment terms, Phoenix reserves the right to refuse delivery; and
    7. the supply of Products for accepted orders may be subject to availability and if, for any reason, Products are not or cease to be available, Phoenix reserves the right to substitute comparable Products (or components of the Products) and vary the Price as per clause
    8. In all such cases Phoenix will notify the Client in advance of any such substitution, and also reserves the right to place the Client’s order and/or Works on hold, as per clause 6.2 until such time as Phoenix and the Client agree to such changes.
    9. Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 226 of the Contract and Commercial Law Act 2017 or any other applicable provisions of that Act or any Regulations referred to in that Act.
  3. Errors and Omission
    1. The Client acknowledges and accepts that Phoenix shall, without prejudice, accept no liability in respect of any alleged or actual error(s) and/or omission(s):
    2. resulting from an inadvertent mistake made by Phoenix in the formation and/or administration of this Contract; and/or
    3. contained in/omitted from any literature (hard copy and/or electronic) supplied by Phoenix in respect of the Works
    4. In the event such an error and/or omission occurs in accordance with clause 3.1, and is not attributable to the negligence and/or wilful misconduct of Phoenix; the Client shall not be entitled to treat this Contract as repudiated nor render it invalid.
  4. Change in Control
    1. The Client shall give Phoenix not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client and/or any other change in the Client’s details (including but not limited to, changes in the Client’s name, address, contact phone or fax number/s, change of trustees, or business practice). The Client shall be liable for any loss incurred by Phoenix as a result of the Client’s failure to comply with this clause.
  5. Price and Payment
    1. At Phoenix’s sole discretion the Price shall be either:
    2. As indicated on invoices provided by Phoenix to the Client in respect of Works performed or Products supplied; or
    3. Phoenix’s quoted Price (subject to clause 5.2) which will be valid for the period stated in the quotation or otherwise for a period of sixty (60) days.
    4. Phoenix reserves the right to change the Price:
      1. if a variation to the Products which are to be supplied is requested; or
      2. if a variation to the Works originally scheduled (including any applicable plans or specifications) is requested; or
      3. where additional Works are required due to the discovery of hidden or unidentifiable difficulties (including but not limited to, poor weather conditions, limitations to accessing the site, availability of machinery, safety considerations, delays caused by third party suppliers, prerequisite work by any third party not being completed, hidden wring in walls, or change of design, etc.) which are only discovered on commencement of the Works; or
      4. in the event of increases to Phoenix in the cost of labour or materials (including, but not limited to, any variation as a result of fluctuations in currency exchange rates or increases to Phoenix in the cost of taxes, levies, freight and insurance charges, or delays in shipment etc.) which are beyond Phoenix’s control.
    5. Variations will be charged for on the basis of Phoenix’s quotation, and will be detailed in writing, and shown as variations on Phoenix’s invoice. The Client shall be required to respond to any variation submitted by Phoenix within ten (10) working days. Failure to do so will entitle Phoenix to add the cost of the variation to the Price. Payment for all variations must be made in full at the time of their completion.
    6. Variations will be charged for on the basis of Phoenix’s quotation, and will be detailed in writing, and shown as variations on Phoenix’s invoice. The Client shall be required to respond to any variation submitted by Phoenix within ten (10) working days. Failure to do so will entitle Phoenix to add the cost of the variation to the Price. Payment for all variations must be made in full at the time of their completion.
    7. Variations will be charged for on the basis of Phoenix’s quotation, and will be detailed in writing, and shown as variations on Phoenix’s invoice. The Client shall be required to respond to any variation submitted by Phoenix within ten (10) working days. Failure to do so will entitle Phoenix to add the cost of the variation to the Price. Payment for all variations must be made in full at the time of their completion.
    8. At Phoenix’s sole discretion a non-refundable deposit may be required.
    9. Time for payment for the Works being of the essence, the Price will be payable by the Client on the date/s determined by Phoenix, which may be:
      1. on completion of the Works; or 
      2. by way of progress payments in accordance with Phoenix’s specified progress payment schedule. Such progress payment claims may include the reasonable value of authorised variations and the value of any Products delivered to the worksite but not yet installed;
      3. for certain approved Client’s, due twenty (20) days following the end of the month in which a statement is posted to the Client’s address or address for notices
      4. the date specified on any invoice or other form as being the date for payment; or
    10. failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Client by Phoenix.
    11. failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Client by Phoenix.
    12. At the agreement of both parties, payment of the Price may be subject to retention by the Client of an amount (hereafter called the "Retention Money"), being a set amount or equal to a percentage of the Price. The Client shall hold the Retention Money for the agreed period following completion of the Works during which time all Works are to be completed and/or all defects are to be remedied. Any Retention Money applicable to this Contract is to be dealt with in accordance with section 18(a) to 18(i) of the Construction Contracts Act 2002.
    13. Payment may be made by electronic/on-line banking, or by any other method as agreed to between the Client and Phoenix.
    14. Phoenix may in its discretion allocate any payment received from the Client towards any invoice that Phoenix determines and may do so at the time of receipt or at any time afterwards. On any default by the Client Phoenix may re-allocate any payments previously received and allocated. In the absence of any payment allocation by Phoenix, payment will be deemed to be allocated in such manner as preserves the maximum value of Phoenix’s Purchase Money Security Interest (as defined in the PPSA) in the Products
    15. The Client shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Client by Phoenix nor to withhold payment of any invoice because part of that invoice is in dispute, unless the request for payment by Phoenix is a claim made under the Construction Contracts Act 2002.
    16. Unless otherwise stated the Price does not include GST. In addition to the Price, the Client must pay to Phoenix an amount equal to any GST Phoenix must pay for any supply by Phoenix under this or any other agreement for the sale of the Products. The Client must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Client pays the Price. In addition, the Client must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.
  6. Provision of the Works
    1. Subject to clause 6.2 it is Phoenix’s responsibility to ensure that the Works start as soon as it is reasonably possible.
    2. The Works’ commencement date will be put back and the completion date extended by whatever time is reasonable in the event that Phoenix claims an extension of time (by giving the Client written notice) where completion is delayed by an event beyond Phoenix’s control, including but not limited to any failure by the Client to
      1. make a selection; or
      2. have the site ready for the Works; or
      3. notify Phoenix that the site is ready.
    3. At Phoenix’s sole discretion, the cost of Delivery is either included in the Price or is in addition to the Price.
    4. Any time specified by Phoenix for provision of the Works is an estimate only, and are subject to extension of time for failure to complete resulting from any event under clause 29.9 and/or all or any other cause beyond Phoenix’s control, and also suspension of the Works under clause 25.1. Phoenix will not be liable for any loss or damage incurred by the Client as a result of any delay. However, both parties agree that they shall make every endeavour to enable the Works to be provided at the time and place as was arranged between both parties. In the event that Phoenix is unable to provide the Works, as agreed, solely due to any action or inaction of the Client (including, but not limited to, delays or failure by the Client to carry out any associated work), then Phoenix shall be entitled to an extension of time for completion of the Works and the reimbursement by the Client for any costs, loss and expense incurred by Phoenix resulting therefrom, including the storage of Products intended for incorporation within the Works.
    5. No provision has been allowed for the effects of inclement weather, and should Phoenix’s employees leave the site because of facilities being withdrawn, then the costs shall be substantiated and billed to the Client as a variation under clause 5.2 and a suitable extension of time shall be granted by the Client
    6. The Client acknowledges and accepts that:
    7. delivery of the Products may take up to seventeen (17) weeks on approval of the general arrangement drawings and receipt of the deposit;
    8. installation of the Products may take up to six (6) week
    9. Phoenix 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
  7. Risk
    1. If Phoenix retains ownership of the Products under clause 15 then:
      1. where Phoenix is supplying Products only, all risk for the Products shall immediately pass to the Client on delivery and the Client must insure the Products on or before delivery. Delivery of the Products shall be deemed to have taken place immediately at the time that the Products are delivered by Phoenix or Phoenix’s nominated carrier to the Client’s nominated delivery address (even if the Client is not present at the address).
      2. where Phoenix is to both supply and install Products then Phoenix shall maintain a contract works insurance policy until the Works are completed. Upon completion of the Works all risk for the Works shall immediately pass to the Client.
    2. Notwithstanding the provisions of clause 7.1 if the Client specifically requests Phoenix to leave Products outside Phoenix’s premises for collection or to deliver the Products to an unattended location then such materials shall always be left at sole risk of the Client and it shall be the Client’s responsibility to ensure the Products are insured adequately or at all. In the event that such Products are lost, damaged or destroyed then replacement of the Products shall be at the Client’s expense.
    3. Notwithstanding the provisions of clause 7.1 if the Client specifically requests Phoenix to leave Products outside Phoenix’s premises for collection or to deliver the Products to an unattended location then such materials shall always be left at sole risk of the Client and it shall be the Client’s responsibility to ensure the Products are insured adequately or at all. In the event that such Products are lost, damaged or destroyed then replacement of the Products shall be at the Client’s expense.
    4. Where the Client has supplied materials for Phoenix to complete the Works, the Client acknowledges and accepts responsibility for the suitability of purpose, quality and any faults inherent in the materials. Phoenix 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 Client.
    5. acknowledges that
      1. warrants that:
      2. The Client:
      3. any structures to which the Products are to be affixed are able to withstand the installation of the Products and 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 (including the discovery of asbestos, defective or unsafe wiring or dangerous access) that Phoenix, its employees or Phoenix’s reasonably form the opinion that the Client’s premises is not safe for the installation of Products to proceed then Phoenix shall be entitled to delay installation of the Products (in accordance with clause 6.2) until Phoenix is satisfied that it is safe for the installation to proceed;
      4. no other tradesmen interfere with any Works and/or Products supplied under this contract. Phoenix shall not be liable for any costs, damages or loss however arising from the Client’s failure to comply with this clause.
      5. no other tradesmen interfere with any Works and/or Products supplied under this contract. Phoenix shall not be liable for any costs, damages or loss however arising from the Client’s failure to comply with this clause.
    6. acknowledges that:
      1. Phoenix is only responsible for Products that are replaced by Phoenix, and in the event that other parts/goods, subsequently fail, the Client agrees to indemnify Phoenix against any loss or damage to the Works, or caused by the goods, or any part thereof howsoever arising; and
      2. Phoenix is only responsible for Products that are replaced by Phoenix, and in the event that other parts/goods, subsequently fail, the Client agrees to indemnify Phoenix against any loss or damage to the Works, or caused by the goods, or any part thereof howsoever arising; and
      3. they shall:
        1. not be entitled to withhold any payment due under this Contract because of any delay in the connection of, or the supply of electricity to the Products by an electrical distributor or any other third party
        2. supply electricity, temporary lighting, toilet, eating and first aid facilities if so required; an
        3. be responsible for ensuring that the Products ordered are suitable for their intended use.
    7. shall be responsible for:
      1. providing all necessary structural and architectural drawings and the construction program to enable preparation of working drawings and for the ordering to proceed; and
      2. providing all structural steelwork (including, but not limited to, supports for hitch points, machine mounting points, guide rails and lifting beams, etc.); and
    8. providing all recesses, penetrations, chases, architraves, electrical conduits, push button stations, position indicators and backfill and fire rating after installation of the Products; and
    9. providing all recesses, penetrations, chases, architraves, electrical conduits, push button stations, position indicators and backfill and fire rating after installation of the Products; and
    10. providing and having erected scaffolding to enable the Works to be undertaken (where in Phoenix’s opinion it is deemed necessary). It is also agreed that all scaffolding erected will comply with industry safety standards and that any person erecting the scaffolding shall be suitably qualified to ensure its safe and proper erection and where necessary shall hold a current certificate of competency and/or be fully licensed; an
    11. provide temporary guarding and waterproofing of the lift shaft at all times.
  8. Phoenix
    1. shall:
      1. upon installation ensure that all Products are to be installed in a manner that is fully compliant with industry standards. If, for any reason, the Client specifically requires the Products to be installed in any way which goes against Phoenix’s recommendations and/or falls below industry standards; a request detailing that requirement must be made in writing to Phoenix. Accordingly, Phoenix offers no warranty in regards to the aforementioned;
      2. be entitled to rely on the accuracy of any plans, specifications and other information provided by the Client. The Client acknowledges and agrees that in the event that any of this information provided by the Client is inaccurate, Phoenix accepts no responsibility for any loss, damages, or costs however resulting from these inaccurate plans, specifications or other information; 
    2. accepts no responsibility for
      1. accepts no responsibility for
      2. any damage or performance related problems with any Products where they have not been used and/or maintained in accordance with Phoenix’s and/or the manufacturers’ recommendations;
      3. any damage or defects in any Products caused by movement and/or interference of the said Products;
    3. the removal of rubbish from or clean-up of the building/constructions site/s.  This is the responsibility of the Client or the Client’s agent. Under no circumstances will Phoenix handle removal of asbestos product.
      1. the removal of rubbish from or clean-up of the building/constructions site/s.  This is the responsibility of the Client or the Client’s agent. Under no circumstances will Phoenix handle removal of asbestos product.
    4. Is not liable for any defect, deterioration and/or damage to the Products
      1. if the Client does not follow Phoenix’s recommendations;
      2. where Products are stored off site for extended periods of time as a result of any action/inaction by the Client;
      3. resulting from incorrect use and/or installation of the Goods by the Client or any other third party.
  9. Access
    1. The Client shall ensure that Phoenix has clear and free access to the site upon the stipulated date/s to enable them to undertake the Works, and:
      1. Phoenix 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 due to the negligence of Phoenix.
      2. if, for any reason whatsoever, Phoenix is not given access to the site upon the date/s stipulated, or the project, or the building is not advanced to a stage whereby Phoenix can reasonably undertake the Works, or the practical completion date cannot be achieved, then the Client shall reimburse, or make good, any cost, loss or damage (financial or otherwise) sustained by Phoenix in respect of any additional handling charges for storage, insurance, demurrage or any other proper expenditure incurred by Phoenix.
  10. Hidden Services
    1. Prior to Phoenix commencing any work the Client must advise Phoenix of the precise location of all hidden services on the site and clearly mark the same (including but not limited to any mains/services in wall cavities). The mains & services the Client must identify include, but are not limited to, electrical services, gas services, sewer services, pumping services, sewer connections, sewer sludge mains, water mains, irrigation pipes, telephone cables, fibre optic cables, oil pumping mains, and any other services that may be on site.
    2. Whilst Phoenix will take all care to avoid damage to any services the Client agrees to indemnify Phoenix in respect of all and any liability claims, loss, damage, costs and fines as a result of damage to services not precisely located and notified as per clause 9.1.
  11. Compliance with Laws
    1. The Client and Phoenix shall comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities that may be applicable to the Works, including any WorkSafe guidelines regarding health and safety laws relating to building/construction sites and any other relevant safety standards or legislation.
    2. Notwithstanding clause 10.1 and pursuant to the Health & Safety at Work Act 2015 (the “HSW Act”) Phoenix agrees at all times comply with sections 29 and 34 of the “HSW Act” with meeting their obligations for health and safety laws in the workplace regardless of whether they may be the party in control of the worksite or if in the event that they may be acting as a subcontractor for the Client’s where the Client has engaged a thirty party head contractor
    3. The Client shall obtain (at the expense of the Client) all licenses, approvals, applications and permits that may be required for the Works.
  12. Insurance
    1. Phoenix shall have public liability insurance of at least five million dollars ($5m). It is the Client’s responsibility to ensure that they are similarly insured.
  13. Practical Completion
    1. The date of practical completion hereof shall be the date Phoenix has installed all Products in good working order and condition to the satisfaction of any responsible officer in the employ of the appropriate statutory authority or authorities in New Zealand, provided always that, in the event that Phoenix has installed all Products in good working order and condition, and such Products cannot be operated due to any act, default and/or omission by the Client, or any party other than Phoenix, then the date of practical completion hereof shall be deemed to be the date of written notice provided by Phoenix to the Client stating the above.
  14. Maintenance
    1. Maintenance service will be provided by Phoenix without further charge for a period of twelve (12) months from the date of practical completion of the Works. Such service will be carried out during Phoenix’s normal working days/hours, and will include regular inspections and adjustment of the Products, the provision of oil, grease and cleaning material and attending service calls during normal working days/hours. If maintenance cannot be carried out during Phoenix’s normal working days/hours, Phoenix shall be at liberty to charge the Client an amount equal to overtime payments and/or other expenses incurred by Phoenix which would not be incurred if such maintenance had been carried out during Phoenix’s normal working days/hours or if required urgently.
  15. Builder’s Lift
    1. Should the Client require the use of any lift prior to practical completion of the whole of the Works:
    2. Phoenix may, by agreement, provide such lift/s to the Client, for the Client’s use, provided that Phoenix is granted practical completion for any such lift/s, and such lift/s are maintained by Phoenix, up to the date of practical completion of the whole of the Works; and
    3. a fee is payable by the Client to Phoenix weekly for such maintenance of the lift/s. Phoenix shall be entitled to any costs associated with the use of any lift/s as a builders lift, or separable handover of any lift in any multiple lift contract; and
    4. the Client agrees to pay the lift registration fee to the relevant authority; and
    5. any lift/s utilised as a builders lift must be inspected at the time of handover, and a mutual agreement signed which states the condition of the lift/s before being passed into service. A further inspection by the approving authority may be required before practical completion; and
    6. the adjustment of, or repair of any damage to, any part of the lift, or lift equipment, is to be paid by the Client. Phoenix will not be liable for any damage sustained to the lift, or lift doors, car superstructure or interiors, whatsoever whilst the lift is in use by the Client during this period; and
    7. additional costs of authority inspections, re-inspections, attendance by Phoenix, labour or materials shall be borne by the Client and paid to Phoenix
  16. Title
    1. Phoenix and the Client agree that ownership of the Products shall not pass until:
      1. the Client has paid Phoenix all amounts owing to Phoenix; and
      2. the Client has met all of its other obligations to Phoenix.
    2. Receipt by Phoenix of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised.
    3. Receipt by Phoenix of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised.
      1. It is further agreed that:
      2. until ownership of the Products passes to the Client in accordance with clause 15.1 that the Client is only a bailee of the Products and unless the Products have become fixtures must return the Products to Phoenix on request;
      3. the Client holds the benefit of the Client’s insurance of the Products on trust for Phoenix and must pay to Phoenix the proceeds of any insurance in the event of the Products being lost, damaged or destroyed;
      4. the production of these terms and conditions by Phoenix shall be sufficient evidence of Phoenix’s rights to receive the insurance proceeds direct from the insurer without the need for any person dealing with Phoenix to make further enquiries;
      5. the Client must not sell, dispose, or otherwise part with possession of the Products other than in the ordinary course of business and for market value. If the Client sells, disposes or parts with possession of the Products then the Client must hold the proceeds of any such act on trust for Phoenix and must pay or deliver the proceeds to Phoenix on demand;
      6. the Client should not convert or process the Products or intermix them with other goods but if the Client does so then the Client holds the resulting product on trust for the benefit of Phoenix and must sell, dispose of or return the resulting product to Phoenix as it so directs;
      7. unless the Products have become fixtures the Client irrevocably authorises Phoenix to enter any premises where Phoenix believes the Products are kept and recover possession of the Products
      8. Phoenix may recover possession of any Products in transit whether or not delivery has occurred;
      9. the Client shall not charge or grant an encumbrance over the Products nor grant nor otherwise give away any interest in the Products while they remain the property of Phoenix;
      10. Phoenix may commence proceedings to recover the Price of the Products sold notwithstanding that ownership of the Products has not passed to the Client.
  17. Personal Property Securities Act 1999 (“PPSA”)
    1. Upon assenting to these terms and conditions in writing the Client acknowledges and agrees that:
      1. these terms and conditions constitute a security agreement for the purposes of the PPSA; and
      2. a security interest is taken in all Products and/or collateral (account) – being a monetary obligation of the Client to Phoenix for Works – that have previously been supplied and that will be supplied in the future by Phoenix to the Client.
    2. The Client undertakes to:
      1. The Client undertakes to:
      2. sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which Phoenix may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register;
      3. indemnify, and upon demand reimburse, Phoenix for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register or releasing any Products charged thereby;
      4. not register, or permit to be registered, a financing statement or a financing change statement in relation to the Products and/or collateral (account) in favour of a third party without the prior written consent of Phoenix; and
    3. immediately advise Phoenix of any material change in its business practices of selling Products which would result in a change in the nature of proceeds derived from such sales.
    4. immediately advise Phoenix of any material change in its business practices of selling Products which would result in a change in the nature of proceeds derived from such sales.
    5. Phoenix and the Client agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms and conditions.
    6. The Client waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA.
    7. Unless otherwise agreed to in writing by Phoenix, the Client waives its right to receive a verification statement in accordance with section 148 of the PPSA
    8. The Client shall unconditionally ratify any actions taken by Phoenix under clauses 16.1 to 16.5.
    9. Subject to any express provisions to the contrary (including those contained in this clause 16), nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA. 
  18. Security and Charge
    1. In consideration of Phoenix agreeing to supply the Works, the Client charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Client either now or in the future, to secure the performance by the Client of its obligations under these terms and conditions (including, but not limited to, the payment of any money). 
    2. The Client indemnifies Phoenix from and against all Phoenix’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising Phoenix’s rights under this clause.
    3. The Client irrevocably appoints Phoenix and each director of Phoenix as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 17 including, but not limited to, signing any document on the Client’s behalf.
  19. Defects In Products
    1. The Client shall inspect the Products immediately on delivery and shall within seven (7) days of delivery (time being of the essence) notify Phoenix of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Client shall afford Phoenix an opportunity to inspect the Products within a reasonable time following delivery if the Client believes the Products are defective in any way. If the Client shall fail to comply with these provisions the Products shall be presumed to be free from any defect or damage. For defective Products, which Phoenix has agreed in writing that the Client is entitled to reject, Phoenix’s liability is limited to either (at Phoenix’s discretion) replacing the Products or repairing the Products.
    2. Products will not be accepted for return other than in accordance with 18.1 above.
  20. Returns
    1. Returns will only be accepted provided that:
      1. the Client has complied with the provisions of clause 18.1; and
      2. Phoenix has agreed in writing to accept the return of the Products; and
      3. the Products are returned at the Client’s cost within seven (7) days of the delivery date; and
      4. Phoenix will not be liable for Products which have not been stored or used in a proper manner; and
      5. the Products are returned in the condition in which they were delivered and with all packaging material, brochures and instruction material in as new condition as is reasonably possible in the circumstances.
    2. Phoenix will not accept the return of non-defective Products for credit.
    3. Non-stocklist items or Products made to the Client’s specifications are under no circumstances acceptable for credit or return.
  21. Warranties
    1. Subject to the conditions of warranty set out in clause 20.2 Phoenix warrants that if any defect in any workmanship of Phoenix becomes apparent and is reported to Phoenix within, at Phoenix’s discretion, up to four (4) years of the date of delivery (time being of the essence) then Phoenix will either (at Phoenix’s sole discretion) replace or remedy the workmanship.
    2. The conditions applicable to the warranty given by clause 20.1 are:
      1. the warranty shall not cover any defect or damage which may be caused or partly caused by or arise through:
      2. failure on the part of the Client to properly maintain any Products; or
      3. failure on the part of the Client to follow any instructions or guidelines provided by Phoenix; or
      4. any use of any Products otherwise than for any application specified on a quote or order form; or
      5. the continued use of any Products after any defect becomes apparent or would have become apparent to a reasonably prudent operator or user; or
      6. fair wear and tear, any accident or act of God.
    3. the warranty shall cease and Phoenix shall thereafter in no circumstances be liable under the terms of the warranty if the workmanship is repaired, altered or overhauled without Phoenix’s consent.
    4. the warranty shall cease and Phoenix shall thereafter in no circumstances be liable under the terms of the warranty if the workmanship is repaired, altered or overhauled without Phoenix’s consent.
    5. in respect of all claims Phoenix shall not be liable to compensate the Client for any delay in either replacing or remedying the workmanship or in properly assessing the Client’s claim.
    6. For Products not manufactured by Phoenix, the warranty shall be the current warranty provided by the manufacturer of the Products. Phoenix 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 Products.
  22. Consumer Guarantees Act 1993
    1. If the Client is acquiring Products for the purposes of a trade or business, the Client acknowledges that the provisions of the Consumer Guarantees Act 1993 do not apply to the supply of Products by Phoenix to the Client.
  23. Intellectual Property
    1. Where Phoenix has designed, drawn, written plans or a schedule of Works, or created any products for the Client, then the copyright in all such designs, drawings, documents, plans, schedules and products shall remain vested in Phoenix, and shall only be used by the Client at Phoenix’s discretion. Under no circumstances may such designs, drawings and documents be used without the express written approval of Phoenix.
    2. The Client warrants that all designs, specifications or instructions given to Phoenix will not cause Phoenix to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify Phoenix against any action taken by a third party against Phoenix in respect of any such infringement.
  24. Default and Consequences of Default
    1. Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at Phoenix’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
    2. If the Client owes Phoenix any money the Client shall indemnify Phoenix from and against all costs and disbursements incurred by Phoenix in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, Phoenix’s collection agency costs, and bank dishonour fees).
    3. Further to any other rights or remedies Phoenix may have under this Contract, if a Client has made payment to Phoenix, and the transaction is subsequently reversed, the Client shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by Phoenix under this clause 23, where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Client’s obligations under this Contract.
    4. Without prejudice to Phoenix’s other remedies at law Phoenix shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to Phoenix shall, whether or not due for payment, become immediately payable if:
      1. any money payable to Phoenix becomes overdue, or in Phoenix’s opinion the Client will be unable to make a payment when it falls due; 
      2. the Client has exceeded any applicable credit limit provided by Phoenix;
      3. the Client 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
      4. a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.
  25. Cancellation
    1. Without prejudice to any other rights or remedies Phoenix may have, if at any time the Client is in breach of any obligation (including those relating to payment and/or failure to remedy any breach in respect of this Contract within ten (10) working days of receipt by the Client of such notice/s) then Phoenix may suspend the Works immediately. Phoenix will not be liable to the Client for any loss or damage the Client suffers because Phoenix has exercised its rights under this clause.
    2. Phoenix may cancel any contract to which these terms and conditions apply or cancel delivery of Works at any time before the Works are commenced by giving written notice to the Client. On giving such notice Phoenix shall repay to the Client any sums paid in respect of the Price, less any amounts owing by the Client to Phoenix for Works already performed. Phoenix shall not be liable for any loss or damage whatsoever arising from such cancellation.
    3. In the event that the Client cancels the delivery of Works the Client shall be liable for any and all loss incurred (whether direct or indirect) by Phoenix as a direct result of the cancellation (including, but not limited to, any loss of profits).
    4. Cancellation of orders for products made to the Client’s specifications, or for non-stocklist items, will definitely not be accepted once production has commenced, or an order has been placed.
  26. Privacy Policy
    1. All emails, documents, images or other recorded information held or used by Phoenix is Personal Information as defined and referred to in clause 25.3 and therefore considered confidential. Phoenix acknowledges its obligation in relation to the handling, use, disclosure and processing of Personal Information pursuant to the Privacy Act 1993 (“the Act”) including Part II of the OECD Guidelines and as set out in Schedule 5A of the Act and any statutory requirements where relevant in a European Economic Area “EEA” then the EU Data Privacy Laws (including the General Data Protection Regulation “GDPR”) (collectively, “EU Data Privacy Laws”). Phoenix acknowledges that in the event it becomes aware of any data breaches and/or disclosure of the Clients Personal Information, held by Phoenix that may result in serious harm to the Client, Phoenix will notify the Client in accordance with the Act and/or the GDPR. Any release of such Personal Information must be in accordance with the Act and the GDPR (where relevant) and must be approved by the Client by written consent, unless subject to an operation of law.
    2. Notwithstanding clause 25.1, privacy limitations will extend to Phoenix in respect of Cookies where transactions for purchases/orders transpire directly from Phoenix’s website. Phoenix agrees to display reference to such Cookies and/or similar tracking technologies, such as pixels and web beacons (if applicable), such technology allows the collection of Personal Information such as the Client’s
      1. IP address, browser, email client type and other similar details;
      2. tracking website usage and traffic; and
      3. reports are available to Phoenix when Phoenix sends an email to the Client, so Phoenix may collect and review that information (“collectively Personal Information”)
    3. In order to enable / disable the collection of Personal Information by way of Cookies, the Client shall have the right to enable / disable the Cookies first by selecting the option to enable / disable, provided on the website prior to proceeding with a purchase/order via Phoenix’s website.
      1. In order to enable / disable the collection of Personal Information by way of Cookies, the Client shall have the right to enable / disable the Cookies first by selecting the option to enable / disable, provided on the website prior to proceeding with a purchase/order via Phoenix’s website.
      2. The Client authorises Phoenix or Phoenix’s agent to:
      3. access, collect, retain and use any information about the Client;
      4. (including, name, address, D.O.B, occupation, driver’s license details, electronic contact (email, Facebook or Twitter details), medical insurance details or next of kin and other contact information (where applicable), previous credit applications, credit history or any overdue fines balance information held by the Ministry of Justice) for the purpose of assessing the Client’s creditworthiness; or 
      5. for the purpose of marketing products and services to the Client.
      6. disclose information about the Client, whether collected by Phoenix from the Client directly or obtained by Phoenix from any other source, to any other credit provider or any credit reporting agency for the purposes of providing or obtaining a credit reference, debt collection or notifying a default by the Client.
    4. Where the Client is an individual the authorities under clause 25.3 are authorities or consents for the purposes of the Privacy Act 1993
    5. Where the Client is an individual the authorities under clause 25.3 are authorities or consents for the purposes of the Privacy Act 1993.
    6. The Client shall have the right to request Phoenix for a copy of the Personal Information about the Client retained by Phoenix and the right to request Phoenix to correct any incorrect Personal Information about the Client held by Phoenix.
  27. Suspension of Works
    1. Where the Contract is subject to the Construction Contracts Act 2002, the Client hereby expressly acknowledges that:
    2. Phoenix has the right to suspend work within five (5) working days of written notice of its intent to do so if a payment claim is served on the Client, and:
      1. the payment is not paid in full by the due date for payment in accordance with clause 5.5 and/or any subsequent amendments or new legislation and no payment schedule has been given by the Client; or
      2. a scheduled amount stated in a payment schedule issued by the Client in relation to the payment claim is not paid in full by the due date for its payment; or
      3. the Client has not complied with an adjudicator’s notice that the Client must pay an amount to Phoenix by a particular date; and
      4. Phoenix has given written notice to the Client of its intention to suspend the carrying out of construction work under the construction Contract.
    3. if Phoenix suspends work, it:
      1. is not in breach of Contract; and
      2. is not liable for any loss or damage whatsoever suffered, or alleged to be suffered, by the Client or by any person claiming through the Client; and
      3. is entitled to an extension of time to complete the Contract; and
      4. keeps its rights under the Contract including the right to terminate the Contract; and may at any time lift the suspension, even if the amount has not been paid or an adjudicator’s determination has not been complied with.
    4. if Phoenix exercises the right to suspend work, the exercise of that right does not:
      1. if Phoenix exercises the right to suspend work, the exercise of that right does not:
      2. affect any rights that would otherwise have been available to Phoenix under the Contract and Commercial Law Act 2017; or
      3. enable the Client to exercise any rights that may otherwise have been available to the Client under that Act as a direct consequence of Phoenix suspending work under this provision;
    5. due to any act or omission by the Client, the Client effectively precludes Phoenix from continuing the Works or performing or complying with Phoenix’s obligations under this Contract, then without prejudice to Phoenix’s other rights and remedies, Phoenix may suspend the Works immediately after serving on the Client a written notice specifying the payment default or the act, omission or default upon which the suspension of the Works is based. All costs and expenses incurred by Phoenix as a result of such suspension and recommencement shall be payable by the Client as if they were a variation.
    6. due to any act or omission by the Client, the Client effectively precludes Phoenix from continuing the Works or performing or complying with Phoenix’s obligations under this Contract, then without prejudice to Phoenix’s other rights and remedies, Phoenix may suspend the Works immediately after serving on the Client a written notice specifying the payment default or the act, omission or default upon which the suspension of the Works is based. All costs and expenses incurred by Phoenix as a result of such suspension and recommencement shall be payable by the Client as if they were a variation.
    7. If pursuant to any right conferred by this Contract, Phoenix suspends the Works and the default that led to that suspension continues un-remedied subject to clause 24.1 for at least ten (10) working days, Phoenix shall be entitled to terminate the Contract, in accordance with clause 24.
  28. Service of Notices
    1. Any written notice given under this Contract shall be deemed to have been given and received:
      1. by handing the notice to the other party, in person;
      2. by leaving it at the address of the other party as stated in this Contract;
      3. by sending it by registered post to the address of the other party as stated in this Contract;
      4. if sent by facsimile transmission to the fax number of the other party as stated in this Contract (if any), on receipt of confirmation of the transmission;
      5. if sent by email to the other party’s last known email address.
    2. Any notice that is posted shall be deemed to have been served, unless the contrary is shown, at the time when by the ordinary course of post, the notice would have been delivered.
  29. Trusts
    1. If the Client at any time upon or subsequent to entering in to the Contract is acting in the capacity of trustee of any trust (“Trust”) then whether or not Phoenix may have notice of the Trust, the Client covenants with Phoenix as follows:
      1. the Contract extends to all rights of indemnity which the Client now or subsequently may have against the Trust and the trust fund;
      2. the Client has full and complete power and authority under the Trust to enter into the Contract and the provisions of the Trust do not purport to exclude or take away the right of indemnity of the Client against the Trust or the trust fund. The Client will not release the right of indemnity or commit any breach of trust or be a party to any other action which might prejudice that right of indemnity;
      3. the Client will not without consent in writing of Phoenix (Phoenix will not unreasonably withhold consent), cause, permit, or suffer to happen any of the following events:
        1. the removal, replacement or retirement of the Client as trustee of the Trust;
        2. any alteration to or variation of the terms of the Trust;
        3. any advancement or distribution of capital of the Trust; or
        4. any resettlement of the trust property.
  30. General
    1. Any dispute or difference arising as to the interpretation of these terms and conditions or as to any matter arising hereunder, shall be submitted to, and settled by, either adjudication in accordance with the Construction Contracts Act 2002 and/or by arbitration in accordance with the Arbitration Act 1996 or its replacement(s).
    2. The failure by either party to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect that party’s right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
    3. These terms and conditions and any contract to which they apply shall be governed by the laws of New Zealand and are subject to the jurisdiction of the Auckland Courts of New Zealand.
    4. Phoenix shall be under no liability whatsoever to the Client for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by Phoenix of these terms and conditions (alternatively Phoenix’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Works).
    5. Phoenix may licence and/or assign all or any part of its rights and/or obligations under this Contract without the Client’s consent.
    6. The Client cannot licence or assign without the written approval of Phoenix.
    7. Phoenix may elect to subcontract out any part of the Works but shall not be relieved from any liability or obligation under this Contract by so doing. Furthermore, the Client agrees and understands that they have no authority to give any instruction to any of Phoenix’s sub-contractors without the authority of Phoenix.
    8. The Client agrees that Phoenix may amend their general terms and conditions for subsequent future contracts with the Client by disclosing such to the Client in writing. These changes shall be deemed to take effect from the date on which the Client accepts such changes, or otherwise at such time as the Client makes a further request for Phoenix to provide Works to the Client. 
    9. Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.
    10. Both parties warrant that they have the power to enter into this Contract and have obtained all necessary authorisations to allow them to do so, they are not insolvent and that this Contract creates binding and valid legal obligations on them.