1.1 The price of the Scheduled Maintenance shall be the price specified in the Proposal.
1.1 If the Completion Report recommends Arena provide the Client with additional Goods or Services that are not subject to an agreed price, then those Goods shall be charged at the cost price to Arena plus Arena’s margin and those Services shall be charged at the normal services rate for the provision of those services (as amended by Arena from time to time) together with any additional costs or expenses incurred by Arena in the provision of those Services.
1.2 Unless otherwise stated, prices do not include GST, other tax or levies or transport charges.
2.1 Invoices will be sent electronically. All invoices must be paid by the 20th of the month following invoice.
2.2 Arena reserves the right to restrict or withhold the supply of Goods or Services to the Client if Arena’s payment terms are not strictly adhered to. If the Client defaults in making payment then Arena may:
(a) Charge interest on all overdue invoices at Arena’s cost of borrowing plus 2.5% per month calculated from the date to the date of the payment;
(b) Charge the Client all costs including legal fees (as between solicitor and client), debt collection charges and court costs incurred by Arena in recovering the outstanding monies; and
(c) Cancel any agreement between Arena and the Client requiring Arena to supply Goods or Services to the Client.
3. Retention of Title
3.1 All Goods supplied by Arena shall remain the property of Arena
until payment in full by the Client of all amounts owing is received by Arena. Until property in the Goods passes to the Client, the Client shall hold the Goods as a bailee and shall be liable to Arena accordingly. Without prejudice to Arena’s other rights and remedies, if the Client breaches any of these terms Arena shall have the right (without giving notice) to retake possession of the Goods and the Client authorises Arena or its representatives, servants, agents of employees to enter any premises upon which the Goods are stored for the purpose of retaking possession of the Goods. Arena will have no liability to the Client or any third party in relation to the entry, removal or repossession of the Goods pursuant to this clause and the Client will indemnify Arena against any claims, actions or costs that may arise as a result.
4.1 The Client acknowledges that the retention of title in these terms
creates a security interest (as defined under the PPSA) in favour of Arena in all present and after-acquired Goods and all proceeds of such Goods (whether such Goods were provided to the Client by way of supply or otherwise) as security for the due and punctual payment of the Goods and the Client’s performance of its obligations under these terms or otherwise.
4.2 The Client undertakes to:
(a) promptly do all things, execute all documents and/or
provide any information which Arena may reasonably require to enable Arena to perfect and maintain the perfection of its security interest (including by registering a financing statement);
(b) give Arena not less than 14 days prior written notice of any proposed change in its name and/or any other change of its details; and
(c) immediately on request by Arena (and at the Client’s expense) obtain from any third party such agreements and waivers of any security interest that third party has in respect of the Goods to ensure that at all times Arena has a first ranking security interest in the Goods.
4.3 In addition to the security interest created in the Goods above, in order to better secure the Client’s obligations to Arena, the Client grants to Arena a security interest in all of the Client’s present and after acquired personal property. The Client waives its rights to receive a copy of any verification statements under the PPSA and agrees that as between Arena and the Client:
(a) the Client will have no rights under (or by reference to) sections 114(1)(a), 116, 120(2), 121, 125, 126, 127, 129, 131, 133 and 134 of the PPSA; and
(b) where Arena has rights in addition to those in Part 9 of the PPSA, those rights will continue to apply.
5. Force Majeure
5.1 Arena will not be liable to the Client if delivery of the Goods or performance of and Service is prevented or delayed, by reason of any circumstances beyond Arena’s reasonable control.
6.1 To the extent permitted by law, all statutory, express or implied warranties by Arena including, without limitation, implied warranties of merchantability and fitness for any particular purpose are expressly excluded.
6.2 Arena does not warrant that the Goods or Services are fit for the purpose the Client intends to use the Goods or Services for including any purpose specified in these terms or any other agreement.
7. Consumer Guarantees Act
7.1 Where Goods or Services are being supplied for the purposes of a business, the Client agrees that the Consumer Guarantees Act 1993 will not apply.
8. Limitation of liability
8.1 The liability of Arena in respect of all claims for loss, damage or
injury arising from a breach of any of Arena’s obligations under these terms or from any act or omission of Arena is limited, in each case, to the lesser of:
(a) replacement or repair of the affected Goods;
(b) payment of the actual cost of replacing or repairing the affected Goods; or
(c) the price of the affected Goods or Services for the most recent calendar month prior to the claim being notified.
8.2 Arena not be liable for any direct, indirect or consequential loss, cost or damage arising from any breach by Arena or any other party as a result of any failure by Arena to perform its obligations under this agreement, whether arising in tort, contract, from any other negligent or other act or omission of Arena or any of Arena’s employees, business partners or contractors, or otherwise, including, without limitation, any loss of profit, contracts, business, goodwill, data, income, revenue or anticipated savings.
8.3 No action arising out of the supply of Goods or Services by Arena, regardless of form, may be brought more than one month after the Client becomes aware, or reasonably ought to have become aware, of the circumstances giving rise to the action.
9. Intellectual Property
9.1 All intellectual property rights in the Goods or arising out of the performance of the Services are and shall remain the property of Arena. The Client warrants that any design or drawing provided by it does not infringe any intellectual property rights of any other person.
10.1 Risk in the goods shall pass to the client when the goods arrive at the Clients address.
11. Health & Safety
11.1 The Client must comply with all health and safety legislative requirements, including the Health and Safety at Work Act 2015 and all related legislative instruments, guidance and codes of practice (Health and Safety Legislation). The Client will, and will ensure that its employees, agents, contractors and sub-contractors (if any), comply at all times with all reasonable directions of Arena and will notify Arena of any identifiable hazards which come to their attention in relation to the supply of Goods and Services. The Client will provide all reasonable assistance to Arena in relation to any investigation (whether conducted by the Arena, or a regulatory agency) into a notifiable event at no cost to Arena. The Client will notify Arena of any improvement or prohibition notice, enforcement proceedings or prosecution under Health and Safety Legislation against the Client in relation to work done under these terms. The Client will, to the extent permitted by law, indemnify Arena n respect of any claims brought against Arena resulting from any breach by the Client of its obligations under any Health and Safety Legislation, and/or any failure by the Client to comply with its obligations under this clause.
12.1 All outstanding monies shall become immediately due and payable from the Client, and Arena reserves the right to immediately cancel the Proposal, if the Client:
(a) ceases or threatens to cease carrying on business;
(b) becomes unable to pay its debts as they fall due or otherwise becomes insolvent or bankrupt;
(c) has a receiver or a receiver and manager appointed in relation to all or part of its assets, commences liquidation or is placed in statutory management; or
(d) breaches any of these terms and fails to remedy the breach within ten days of written notice requiring the breach to be remedied.
13.1 The Client authorises Arena to collect, retain and use personal information about the Client for the following purposes:
(a) assessing the Client’s creditworthiness;
(b) administering the Proposal;
(c) receiving information from one or more credit reference agencies, concerning the credit history of the Client;
(d) disclosing credit-related information to, and using the credit services of, one or more credit reference agencies, on a continuing basis at any time and entirely at its discretion concerning the Client’s credit worthiness.
13.2 For the avoidance of doubt, all authorities given above are continuing authorities, to apply throughout the duration of the trading relationship.
13.3 The Client, if an individual, has a right of access to personal information about the Client held by Arena and may request correction of the information.
14.1 Waiver. Arena’s failure or delay to exercise or enforce any right it has under these terms shall not operate as a waiver of Arena’s right to exercise or enforce such right or any other right in the future.
14.2 Severance. Should any part of these terms be unenforceable such part shall be severed and the remainder of these terms shall remain binding.
14.3 Confidentiality. Except as required by law both parties shall preserve as confidential any information of a confidential nature that they acquire in relation to the other.
14.4 Variation. Arena may at any time and in its sole discretion vary these terms with immediate effect, by posting the revised terms on Arena’s website at www.arenasystems.co.nz provided that Arena shall not make any variation to the nature or extent of the security interest granted by the Client under clause 4 without the written agreement of the Client. Arena may notify the Client by delivering the Client an invoice with a notice of amendment and receipt of that invoice will be deemed acceptance by the Client of these terms as amended.
14.5 No Partnership. Notwithstanding any provision of these terms, the parties agree that the relationship between them is not and shall not be construed to be a partnership.
14.6 Further Acts. The Client shall execute all documents and do all acts and things as may reasonably be required by Arena to carry into effect the matters contemplated by these terms.
14.7 Entire Agreement. Except as otherwise agreed in writing, these terms and those contained in any this Proposal constitute the entire agreement between the parties.
14.8 Notice. Any letter or notice given under these terms will be validly and sufficiently given if sent by electronic mail to the address details notified by one party to the other from time to time. A notice sent by electronic mail shall be deemed to have been received upon sending.
14.9 Jurisdiction. These terms are governed by the laws of New Zealand and the parties submit to the exclusive jurisdiction of the New Zealand Courts.
15.1 Arena means Arena Systems Limited.
15.2 Client means the person who purchases Goods or Services from Arena, and includes the Clients’ employees, contractors, subcontractors and agents. Where the Client comprises two or more persons, means those persons jointly and severally.
15.3 Goods means any goods supplied by Arena to the Client.
15.4 PPSA means the Personal Property Securities Act 1999.
15.5 Premises means the Clients premises specified in the Proposal.
15.6 Proposal means the Service and Maintenance Proposal.
15.7 Scheduled Maintenance means the biannual maintenance to be undertaken by Arena as specified in the Proposal.
15.8 Scheduled Maintenance Completion Report means the report prepared by Arena upon completion of the Scheduled Maintenance.
15.9 Services means any services performed by Arena for the Client.