POLAR REFRIGERATION 2011 LIMITED - TERMS & CONDITIONS OF TRADE

1. DEFINITIONS
1.1 “Polar Refrigeration” shall mean Polar Refrigeration 2011 Limited, or any agents or employees thereof.
1.2 “Customer” shall mean the Customer, any person acting on behalf of and with the authority of the Customer, or any person purchasing goods and services from Polar Refrigeration .
1.3 “Goods” shall mean:
1.3.1 all Goods supplied by Polar Refrigeration to the Customer; and
1.3.2 all inventory of the Customer that is supplied by Polar Refrigeration; and
1.3.3 all Goods supplied by Polar Refrigeration and further identified in any invoice issued by Polar Refrigeration to the Customer, which invoices are deemed to be incorporated into and form part of this agreement; and
1.3.4 all Goods that are marked as having been supplied by Polar Refrigeration or that are stored by the Customer in a manner that enables them to be identified as having been supplied by Polar Refrigeration; and
1.3.5 all of the Customer’s present and after-acquired Goods that Polar Refrigeration has performed work on, or to or in which Goods or materials supplied or financed by Polar Refrigeration have been attached or incorporated.
1.3.6 The above descriptions may overlap but each is independent of and does not limit the others.
1.4 “Goods” shall also mean all goods, products, services and advice provided by Polar Refrigeration to the Customer and shall include without limitation the design, manufacture, development, sale, installation, repair and maintenance of refrigeration equipment and the supply of componentry and parts and all charges for labour, hire charges, insurance charges, freight costs, or any fee or charge associated with the supply of Goods and Services by Polar Refrigeration to the Customer.
1.5 “Price” shall mean the cost of the Goods as agreed between Polar Refrigeration and the Customer and includes all disbursements e.g. charges Polar Refrigeration pay to others on the Customer's behalf subject to clause 4 of this contract.
2. ACCEPTANCE
2.1 Any instructions received by Polar Refrigeration from the Customer for the supply of Goods and Services shall constitute a binding contract and acceptance of the terms and conditions contained herein.
3. COLLECTION AND USE OF INFORMATION
3.1 The Customer authorises Polar Refrigeration to collect, retain and use any information about the Customer, for the purpose of assessing the Customer’s credit worthiness or enforcing any rights under this contract.
3.2 The Customer authorises Polar Refrigeration to disclose any information obtained to any person for the purposes set out in clause 3.1.
3.3 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.
4. PRICE
4.1 Where no price is stated in writing or agreed to orally the Goods and Services shall be deemed to be sold at the current amount as such Goods and Services are sold by Polar Refrigeration at the time of the contract.
4.2 The price may be increased by the amount of any reasonable increase in the cost of supply of the Goods and Services that is beyond the control of Polar Refrigeration between the date of the contract and delivery of the Goods and Services.
5. PAYMENT
5.1 Payment for Goods and Services shall be made in full on or before the 20th day of the month following the date of the invoice (“the due date”). Progress payments apply to large contracts.
5.2 Interest may be charged on any amount owing after the due date at a rate equal to 2.5% above the bank indicator lending rate of Polar Refrigeration. Interest is payable from the date the payment was due until the date Polar Refrigeration receives payment.
5.3 Any expenses, disbursements and legal costs incurred by Polar Refrigeration in the enforcement of any rights contained in this contract shall be paid by the Customer, including any actual solicitor’s fees or debt collection agency fees.
5.4 Receipt of a cheque, bill of exchange, or other negotiable instrument shall not constitute payment until such negotiable instrument is paid in full.
5.5 A deposit may be required.
5.6 Polar Refrigeration shall be entitled to set and amend at any time, a limit on any credit arrangement offered to the Customer, and without notice to terminate or suspend any credit arrangement with Customer in the event of:
5.6.1 The Customer defaulting in any term or condition contained herein; or
5.6.2 The Customer’s actions, statements or conduct repudiates the contract by making it clear it does not intend to perform its obligations under it, and in either event all monies owing by the Customer to Polar Refrigeration shall be immediately due and payable notwithstanding that the time(s) for payment is yet to arrive.
6. QUOTATION
6.1 Where a quotation is given by Polar Refrigeration for Goods and Services:
6.1.1 Unless otherwise agreed the quotation shall be valid for thirty (30) days from the date of issue; and
6.1.2 The quotation shall be exclusive of goods and services tax unless specifically stated to the contrary;
6.1.3 Polar Refrigeration reserves the right to alter the quotation because of circumstances beyond its control.
6.2 Where Goods and Services are required in addition to the quotation the Customer agrees to pay for the additional cost of such Goods and Services.
7. RISK
7.1 The Goods and Services remain at Polar Refrigeration’s risk until delivery to the Customer.
7.2 Delivery of Goods and Services shall be deemed complete when Polar Refrigeration gives possession of the Goods and Services 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.
8. TITLE AND SECURITY (PERSONAL PROPERTY SECURITIES ACT 1999)
8.1 Title in any Goods and Services supplied by Polar Refrigeration passes to the Customer only when the Customer has made payment in full for all Goods and Services provided by Polar Refrigeration and of all other sums due to Polar Refrigeration by the Customer on any account whatsoever. Until all sums due to Polar Refrigeration by the Customer have been paid in full, Polar Refrigeration has a security interest in all Goods and Services.
8.2 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 and Services shall remain with Polar Refrigeration until the Customer has made payment for all Goods and Services, and where those Goods and Services are mixed with other property so as to be part of or a constituent of any new Goods and Services, title to these new Goods and Services shall deemed to be assigned to Polar Refrigeration as security for the full satisfaction by the Customer of the full amount owing between Polar Refrigeration and Customer.
8.3 The Customer gives irrevocable authority to Polar Refrigeration to enter any premises occupied by the Customer or on which Goods and Services are situated at any reasonable time after default by the Customer or before default if Polar Refrigeration believes a default is likely and to remove and repossess any Goods and Services and any other property to which Goods and Services are attached or in which Goods and Services are incorporated.
Polar Refrigeration 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. Polar Refrigeration may either resell any repossessed Goods and Services 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 Services and credit the Customer’s account with the invoice value thereof less such sum as Polar Refrigeration reasonably determines on account of wear and tear, depreciation, obsolescence and costs.
8.4 Where Goods and Services are retained by Polar Refrigeration 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.
8.5 Polar Refrigeration may register a Financing Statement over the Goods and the customer shall agree to waive the right to a verification statement for the purposes of s.148 of the PPSA.
8.6 The following shall constitute defaults by the Customer:
8.6.1 Non payment of any sum by the due date.
8.6.2 The Customer intimates that it will not pay any sum by the due date.
8.6.3 Any Goods and Services are seized by any other creditor of the Customer or any other creditor intimates that it intends to seize Goods and Services.
8.6.4 Any Goods in the possession of the Customer are materially damaged while any sum due from the Customer to Polar Refrigeration remains unpaid.
8.6.5 The Customer is bankrupted or put into liquidation or a receiver is appointed to any of the Customer’s assets or a landlord distrains against any of the Customer’s assets.
8.6.6 A Court judgment is entered against the Customer and remains unsatisfied for seven (7) days.
8.6.7 Any material adverse change in the financial position of the Customer.
9. SECURITY INTEREST FOR SERVICE PROVIDERS
9.1 The customer gives Polar Refrigeration a security interest in all of the Customer’s present and after-acquired property that Polar Refrigeration has performed services on or to or in which goods or materials supplied or
financed by Polar Refrigeration have been attached or incorporated.
10. PAYMENT ALLOCATION
10.1 Polar Refrigeration may in its discretion allocate any payment received from the Customer towards any invoice that Polar Refrigeration 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 Polar Refrigeration, payment shall be deemed to be allocated in such manner as preserves the maximum value of Polar Refrigeration’ purchase money security interest in the Goods and Services.
11. DISPUTES/RETURN OF GOODS
11.1 No claim relating to Goods and Services will be considered unless made in writing within seven (7) days of delivery.
11.2 All Goods must be carefully checked upon receipt. No claims will be accepted if the Goods have been converted or damaged in any way.
11.3 Returns will only be accepted if the Goods supplied are not in accordance with the Customer’s order.
12. WARRANTY
12.1 Manufacturer’s warranties may apply.
13. LIABILITY
13.1 The Consumer Guarantees Act 1993, the Fair Trading Act 1986 and other statutes may imply warranties or conditions or impose obligations upon Polar Refrigeration 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 Polar Refrigeration, Polar Refrigeration’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.
13.2 Except as otherwise provided by clause 12.1, Polar Refrigeration shall not be liable for any loss or damage of any kind whatsoever, arising from the supply of Goods and Services by Polar Refrigeration to the Customer, including consequential or indirect loss nor any loss of profits, revenue, business opportunity, goodwill and/or anticipated savings whether suffered or incurred by the Customer or another person and whether in contract or tort (including negligence) or otherwise;
13.3 The Customer shall indemnify Polar Refrigeration 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 Polar Refrigeration or otherwise, brought by any person in connection with any matter, act, omission, or error by Polar Refrigeration its agents or employees in connection with the Goods and Services.
14. CONSUMER GUARANTEES ACT
14.1 The guarantees contained in the Consumer Guarantees Act 1993 are excluded where the Customer acquires Goods and Services from Polar Refrigeration for the purposes of a business in terms of section 2 and 43 of that Act.
15. PERSONAL GUARANTEE OF COMPANY DIRECTORS OR TRUSTEES
15.1 If the Customer is a company, trust or other entity and if so requested by Polar Refrigeration, the Customer shall procure that its director(s) or trustee(s), provide a personal guarantee of the Customer’s obligations under this contract in the form required by Polar Refrigeration. Any such guarantee shall not exclude the Customer in any way whatsoever from the liabilities and obligations contained in this contract. The guarantors and the Customer shall be jointly and severally liable under the terms and conditions of this contract and for payment of all sums due hereunder.
16. MISCELLANEOUS
16.1 Polar Refrigeration shall not be liable for delay or failure to perform its obligations if the cause of the delay or failure is beyond its control.
16.2 Failure by Polar Refrigeration 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 Polar Refrigeration has under this contract.