Definitions
1.1 “Business Day” means the hours of 0800 - 1700 Monday through to Friday, excluding Saturday, Sunday and public holidays in Auckland.
1.2 “Client” means the person, firm, company or entity purchasing Goods as specified in any invoice, document or order, and if there is more than one Client is a reference to each Client jointly and severally.
1.3 “Leased Product” means the products which are offered for lease by Phoenix set out in the Lease Details.
1.4 “GST” means Goods and Goods Tax imposed under the Goods and Goods Tax Act 1985.
1.5 “Invoice” includes any written quotation and other contractual document issued by Phoenix.
1.6 “Order” means an order placed by the Client for Goods.
1.7 “Phoenix” means Phoenix Environmental Limited, its successors and assigns or any person acting on behalf of and with the authority of Phoenix.
1.8 “Rent” means the monthly price payable for the Leased Goods as agreed from time to time between Phoenix and the Client as set out in the Lease Details.
1.9 “Terms” means these Terms of Trade.
Acceptance of Terms
2.1 These terms and conditions apply to any order for Leased Product placed by the Client.
2.2 The Client is taken to have exclusively accepted and be immediately bound by these Terms upon both the Client and Phoenix signing the Terms.
2.3 These terms and conditions may only be amended with Phoenix’s prior consent in writing and prevail to the extent of any inconsistency with any other document or agreement between the Client and Phoenix.
2.4 The Client acknowledges and accepts that Phoenix at its discretion, reserves the right not to supply Goods if, for any reason(including but not limited to, where the Leased Product is not or ceases to be available). Phoenix will not be liable to the Client for any loss or damage the Client suffers due to Phoenix exercising its rights under this clause.
2.5 In the event the Client has not rejected the Terms within2 Business Days’by written notice, the Client shall be deemed to have automatically accepted these Terms.
Rent
3.1 Phoenix will charge the Client the Rent from the commencement of the lease, also known as the ‘install date’, followed by the monthly rent which will be invoiced on the last of each calendar month.
3.2 Phoenix may, by notice in writing to the Client, vary the Rent after in the event of:
- Any increase in costs charged to Phoenix by its suppliers; Any increase in taxes, duties or other charges imposed by any government body in relation to the Lease Product;
- Any increase as a consequence of variations in foreign currency rates of exchange;
- Any increase in the cost of freight and insurance charges;
- As a result of increases to Phoenix in the cost of materials and/or labour.
3.3 In the event the Rent is subject to variation under clause 3.1, then Phoenix will notify the Client in writing of the variation in Rent and the date on which the variation takes effect.
3.4 The Rent will be paid by the Client on/by the 20th of the month following invoicing day of each month during the term without any deduction or set-off.
3.5 Payment may be made by electric/on-line banking, or by any other method as agreed to in writing prior to payment from Client to Phoenix.
3.6 Unless otherwise stated the Rent does not include GST. In addition to the Rent, 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 provision of the Leased Product. 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 Rent. In addition, the Client must pay any other taxes and duties that may be applicable in addition to the Rent except where they are expressly included in the Rent.
Risk
4.1 The risk of loss or damage to Leased Product during the term of Leased Product will remain with the Client under all circumstances.
4.2 The risk of any loss or damage to or deterioration of goods due to any cause whatsoever during the provision of Leased Product shall be borne by the Client as from the time the Leased Product is installed at Client’s nominated premises.
Title to Leased Product and Uncollected Leased Product
5.1 Phoenix shall retain full title to the Leased Product.
5.2 It is further agreed that:
- The Client holds the benefit of the Client’s insurance of the Leased Product on trust for Phoenix and shall pay to Phoenix the proceeds of any insurance in the event of the Leased Product being lost, damaged or destroyed. Phoenix will be recorded on the insurance policy as an interested party and upon request the Client will provide a copy of the certificate of insurance and/or the policy to Phoenix.
- The Client covenants with Phoenix that such insurance will be sufficient to cover the Leased Product.
- The Client shall not sell, dispose, or otherwise part with possession of the Leased Product. If the Client sells, disposes or parts with possession of the Leased Product then the Client must hold the proceeds of any such act on trust for Phoenix and must pay or deliver the proceeds to Phoenix within 2 business days.
- The Client should not convert or process the Leased Product 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 must sell, dispose of or return the resulting product to Phoenix as Phoenix directs.
- Unless ownership of the Leased Product passes to the Client, Phoenix may recover possession of any Leased Product in transit whether or not delivery has occurred.
- The Client must not charge or grant an encumbrance over the Leased Product nor grant nor otherwise give away any interest in the Leased Product while they remain the property of Phoenix.
- Phoenix may commence proceedings to recover the Rent of the Leased Product sold notwithstanding that ownership of the Leased Product has not passed to the Client.
Liability of Phoenix
6.1 Except as may be otherwise provided by these Terms, Phoenix shall not be liable for any loss or damage howsoever arising from:
- The act or omission of the Client or any person acting on its behalf;
- Its compliance with the Order given to it by the Client;
- Insufficiency of the preparation, packing, storage, labelling, marking of the Leased Product except where such service has been provided by Phoenix;
- Inherent vice of the Leased Product; and
- Any cause or event which Phoenix could not avoid and the consequences where it could not prevent by the exercise of reasonable diligence.
6.2 In all other cases, Phoenix shall not be liable for loss of or damage to the Client’s Leased Product unless the loss or damage occurred on the Premises and was caused by the wilful act, neglect or default of Phoenix, its servants or agents.
6.3 In the event that Phoenix, has not successfully excluded its liability and notwithstanding any other provision of these Terms, the maximum aggregate liability of Phoenix for any loss of or damage to Leased Product or for any act or omission, including any default under these Terms and any act or omission of its servants, agents or contractors, shall be limited to $5,000 at all times.
Personal Property Securities Act 1999 (PPSA)
7.1 Without limiting anything else in these Terms, the Client acknowledges that:
- These Terms create, in the favour of Phoenix, a general security interest over the Client for all present and future acquired liability to secure payment by the Client to Phoenix of all moneys due to Phoenix by the Client, and whether or not such moneys are overdue for payment; and
- These Terms will apply notwithstanding anything, express or implied, to the contrary contained in any request for Goods or agreement for Goods (or its equivalent, whatever called);and
- The security interest shall continue until Phoenix gives the Client a final release.
7.2 The Client undertakes to promptly do all things, execute all documents and/or provide any information which Phoenix may reasonably require to enable Phoenix or to perfect and maintain the perfection of its security interests (including by registration of a financing statement).
7.3 Each security interest created under these Terms is a continuing security, notwithstanding any intermediate payments or settlements of accounts or anything else and is in addition to and is not to be merged with any other security or guarantee (present or future) expressed or intended to be security for any Secured Indebtedness or any other obligations owing by the Client to Phoenix.
7.4 The Client waives its rights under the PPSA to receive a copy of any verification statement, financing statement or financing change statement (as those terms are defined in the PPSA) and agrees that:
- As between Phoenix and the Client, the Client will have no rights under (or by reference to) sections114(1)(a), 116, 117(1)(c), 119, 120(2), 121, 125, 126, 127,129, 131, 132, 133, 134 and 148 of the PPSA;
- To the extent permitted by law these Terms exclude any other provisions of the PPSA which may be excluded in Phoenix’s discretion and which would otherwise confer rights on the Client; and
- Where Phoenix’s has rights in addition to Part 9 of the PPSA, those rights will continue to apply.
7.5 The Client acknowledges that it has received value as at the date of first delivery of the Goods and that Phoenix has not agreed to postpone the time for attachment of the security interest granted to Phoenix under these Terms.
7.6 The Client must not:
- Change its name, address or contact details without providing Phoenix 30 days prior written notice (which may be by email the address of an authorised Phoenix representative);
- Give to Phoenix a written demand, or allow any other person to give Phoenix a written demand requiring a financing change statement to be registered; or
- Lodge a change demand or allow any other person to lodge a change demand, in each case in relation to a financing statement registered by Phoenix under the PPSA.
7.7 The Client will, upon demand, pay all Phoenix’s expenses and legal costs (on a solicitor-client basis) in relation to or in connection with the registration, maintenance and enforcement of Phoenix’s security interest.
7.8 Phoenix does not (and will not be deemed to) undertake any of the Client’s obligations in respect of the Secured Property by virtue of these Terms.
Default
8.1 Where the Client has not paid the Price in accordance with these Terms or is otherwise in breach of these Terms interest on overdue payments will accrue on a daily basis from the date when payment becomes due, until the date of payment, at a rate of 14% per annum.
8.2 If an event of default occurs, and in addition to accruing interest on any overdue payments, Phoenix may:
- Enforce the security interests contemplated in clause 7; or
- Appoint a receiver and any receiver is authorised to do anything referred to in these Terms and otherwise to exercise all rights and powers conferred on a receiver by law.
8.3 Further to any other rights or remedies Phoenix may have under these Terms, the Client shall be responsible for all costs incurred by the Phoenix under this clause including but not limited to legal fees, debt collection expenses, and other associated costs on a solicitor to client basis.
Claims
9.1 Any claim by the Client must be made in writing and may be delivered, hand delivered or emailed as soon as practicable after discovery of the problem by the Client and in any event no later than 5 Business Days after the discovery of the problem with the Leased Product.
9.2 Phoenix has the right at any time within 20 Business Days after receipt of the claim to inspect the relevant Leased Product.
Termination
10.1 Phoenix may terminate these Terms at any time, on giving 30 Business Days written notice of it's intention to do so, however no notice shall be given if:
- A receiver, a receiver and manager, official manager or provisional liquidator is appointed in respect of the Client or any of its assets; or
- The other party makes an assignment in favour of, or a composition or arrangement, or enters into a scheme of arrangement (otherwise than for the purposes solely of a solvent corporate reconstruction), with its creditors or any class of its creditors; or
- The other party becomes unable or is deemed by law to be unable to meet its debts as and when they fall due.
10.2 The Client may terminate these Terms, on giving 30 Business Days written notice, provided that all amounts owing to Phoenix are fully paid.
Consumer Guarantees Act 1993 and Fair Trading Act 1986
11.1 To the maximum extent permitted by law, where the Client is in trade and acquires the Leased Product in trade, the Client agrees:
- That the provisions of the Consumer Guarantees Act 1993 will not apply to these Terms; and
- To contract out of sections 9, 12A, 13 and 14(1) of the Fair Trading Act 1986.
Privacy
12.1 To the extent that any party handles personal information (as defined in the Privacy Act 2020) in the course of these Terms, the parties will at all times comply with their obligations under the Privacy Act 2020.
General
13.1 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.
13.2 These terms and conditions and any contract to which they apply shall be governed by the laws of New Zealand, in which Phoenix has its principal place of business and are subject to the jurisdiction of the courts in New Zealand.
13.3 The Client must not be entitled to set off against, or deduct from the Rent, any sums owed or claimed to be owned to the Client by Phoenix nor to withhold payment of an invoice because part of that invoice is in dispute.
13.4 Phoenix may licence and/or assign all or any part of its rights and/or obligations under this contract without the Client’s consent.
13.5 The Client cannot licence or assign without the prior written approval of Phoenix which shall be at the sole and unfettered discretion of Phoenix.
13.6 The Client agrees that Phoenix may amend these terms and conditions by notifying the Client in writing. These changes shall be deemed to take effect from the date on which the Client receives such changes, or otherwise at such time as the Client makes a further request for Phoenix to provide Leased Product to the Client.
13.7 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock- out, industrial action, fire, flood, storm, pandemics or other event beyond the reasonable control of either party.
13.8 If any part, term or provision of these Terms shall be held invalid, void, illegal or unenforceable the validity, existence, legality or enforceability of the remainder of these Terms shall not be affected, prejudiced or impaired.
13.9 The parties assure each other that they have the power to make and carry out the terms of these Terms and that each has taken and will take all necessary action (corporate and otherwise) to authorise the execution, delivery and performance of their respective obligations under these Terms.
13.10 Nothing in these Terms shall constitute a partnership between the parties or constitute the parties as joint venturers or any party as agent for another party.
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