Chilltech Terms and Conditions

*Interim terms and conditions, as of 13 March 2024

1. ESTIMATES/QUOTES AND INTRODUCTION

1.1 These terms and conditions (“Terms”) apply to any estimate or quote supplied by Chilltech and, along with any drawings or specifications, constitute the entire agreement between Chilltech and the Customer relating to the construction work to be carried out by Chilltech (“Works”). These Terms shall further apply in relation to any subsequent order for further Works by the Customer from Chilltech if such order is accepted by Chilltech. These terms shall not be varied except by express written agreement signed by both parties.
1.2 If there is any inconsistency between these Terms and any acceptance of Chilltech’s estimate or quote (whether in writing, verbally, or by electronic means) or any other arrangement or agreement between the parties, other than special conditions in the estimate or quote, these Terms shall prevail.
1.3 Estimates and quotes are valid for the period specified in the estimate or quote, and if no period is specified, for 14 days from the date of the estimate. In the event of any increase, between date of estimate or quote and the date the Works are completed, in the cost of materials, area quoted, freight, accommodation, labour, duties and levies or in the event of currency fluctuations, such increase shall be to the cost of the Customer.
1.4 Chilltech is not liable for checking (and the Customer is solely responsible for) the accuracy of any information that the Customer provides to Chilltech (including, without limitation, measurements, quantities, plans) for the purpose of Chilltech providing an estimate or quote to the Customer for Works.
1.5 Unless stated otherwise, prices are stated as GST exclusive.

2. PRICE

2.1 Except to the extent provided in any fixed-price quote provided by Chilltech, the price charged by Chilltech for Works will be calculated based on Chilltech’s standard rates for supplies of those Works as of the date the Works are carried out. Chilltech may change those rates from time to time and are available upon request.
2.2 Any estimate or quote applies strictly to the specific Works referred to in the estimate or quote and does not extend to any variation or other Works requested or instructed by the Customer. The Customer acknowledges that an estimate is not a fixed price or quote and that the actual price for the Works may differ as a result of a number of factors.
2.3 The Customer shall pay the price for the Works, plus any GST or other sales tax chargeable on the Works, in accordance with clause 4.
2.4 The Contract Price will be:
a. the actual volume of labour, materials and machinery charged at Chilltech’s relevant rates, plus a Margin; or
b. the quoted price in any quote;
c. plus any variations or works carried out on agreed rates.

3. PROVISIONAL SUMS AND PRIME COST

3.1 Any provisional sum or prime cost (“PC Sum”) in Chilltech’s estimate or quote is an estimated cost of work.
3.2 In calculating the Contract Price, every PC Sum will be deducted and in its place, the actual price (plus a Margin) paid by Chilltech for the work or materials to which each PC Sum relates will be added.

4. PAYMENT

4.1 The terms in this section apply unless modified by specific payment terms set out in the estimate or quote.
4.2 If an estimate is given, the Customer shall pay a non-refundable deposit immediately upon acceptance of the. The amount of the deposit will be the percentage of the estimated Contract Price specified in the estimate or quote (“Non-Refundable Deposit”).
4.3 The Non-Refundable Deposit shall be applied to the amount owing under the first payment claim issued for the Works. Where the Non-Refundable Deposit is greater than the first payment claim, the remainder shall be applied to each subsequent payment claim until it has been fully applied to amounts owing to Chilltech by the Customer.
4.4 Where applicable, Chilltech’s invoice may include a payment claim under the Construction Contracts Act 2002. Unless otherwise specified in an estimate, Chilltech shall have the right to claim one progress payment each calendar month and, where applicable, make a final payment claim immediately upon completion of the Works (whether or not completion takes place in the same calendar month as a prior progress payment claim).
4.5 Payment of any invoiced or claimed amount is due from the Customer to Chilltech on or before the specified period in Chilltech’s estimate or quote. If no period is specified, payment of any invoiced or claimed amount is due from the Customer to Chilltech:
a. For residential work within 7 days of the date of the invoice or payment claim; or
b. For commercial work by the 20th calendar day of the month following the date the invoice or payment claim is provided to the Customer.
4.6 The Customer agrees that no amount will be deducted from an amount due to Chilltech for a claimed set-off or counterclaim.
4.7 If the Customer wishes to provide a payment schedule responding to a payment claim, they must provide the payment schedule to Chilltech within 7 days of receipt of the payment claim (the “due date”). The Customer must pay any scheduled amount by electronic transfer in cleared funds to the bank account notified in writing by Chilltech for this purpose.

5. TITLE & RISK

5.1 Ownership and title to any goods, materials or documents supplied (the “Goods”) is retained by Chilltech and will pass to the Customer only when:
a. the Customer has paid all amounts due to Chilltech under these Terms; and
b. the Customer has performed all its other obligations under these Terms.
5.2 Until the title of the Goods passes to the Customer, the Customer holds the Goods as a fiduciary and bailee for Chilltech and the following provisions apply:
a. The Goods must be stored at the site at which the Works are to be performed by Chilltech (the “Site”) in a manner allowing the Goods to be readily identified as the property of Chilltech and, if applicable, once the Goods have been installed by Chilltech, maintain records so that Chilltech can readily identify its property.
b. The Customer must not part with possession, sell, damage, alter or deface the Goods but shall keep them in good order and repair. If in contravention of the foregoing provisions of this clause, the Customer sells or parts with possession of the Goods, the Customer must keep any proceeds of sale of the Goods in a separate account in the name of Chilltech and provide full particulars of who the Goods were supplied to.
5.3 The Customer must immediately Chilltech of any attempt by any third party to exercise any remedies against the Goods or of any circumstances that may affect Chilltech’s rights to the Goods.
5.4 The risk in the Goods passes to the Customer on the date and time that the Goods arrive on the Site.
5.5 The Customer shall insure the Goods for their full price, and will not sell, dispose or part with possession of them or do anything else inconsistent with Chilltech’s ownership of the Goods, from the date that risk passes to the Customer in the Goods in accordance with clause 5.4 until title in the Goods passes to the Customer.

6. CUSTOMER DEFAULT, INTEREST AND COLLECTION COSTS

6.1 If any of the following events takes place (“Customer Default”), Chilltech may exercise one or more of its rights in clause 6.2 without prejudice to any other rights or remedies available to Chilltech:
a. The Customer breaches, fails to observe or perform any of these Terms or the terms and conditions of any other arrangement made between the Customer and Chilltech including (but not limited to) any failure to pay an amount which is due.
b. The Customer, being an incorporated company, ceases or threatens, to cease to carry on business or a petition is presented or an order is made or an effective resolution is passed for the winding up of the Customer or if a receiver is appointed or if, in the opinion of Chilltech, the Customer is unable to pay its debts or is likely to go into administration, liquidation or receivership or if the Customer seeks, a re-organisation, restructure, arrangement, adjustment or composition of its debts.
c. The Customer, being an individual, is adjudged bankrupt or, in the opinion of Chilltech, is unable to pay their debts or is likely to be adjudged bankrupt or if the Customer seeks a restructure, arrangement, adjustment or composition of the Customer’s debts.
6.2 Where clause 6.1 applies, without prejudice to any other legal right(s) available to Chilltech, it may take one or more of the following actions (at Chilltech’s sole discretion):
a. Suspend the Works until the Customer Default and any subsequent losses are remedied in full;
b. Issue a payment claim for any Works carried out to the date of the Customer Default;
c. After giving notice requiring the Customer to remedy the Customer Default within 5 days, terminate these Terms;
d. Charge the Customer default interest on any amount overdue to Chilltech from the date due until the date it is paid in full at a rate of 15% p.a. compounding daily;
e. Recover Chilltech’s actual costs of and incidental to the enforcement or attempted enforcement of Chilltech’s rights, remedies and powers under these Terms including, without limitation, full legal costs (as between solicitor and client) and debt collection agency fees and charges;
f. Enter onto the premises where the Goods are and repossess the Goods to the extent that Chilltech has not been paid in full. For these purposes, the Customer irrevocably gives authority to Chilltech to enter any premises at which the Goods are situated at any time where clause 6.1 applies and if the Goods are wholly or partially attached to or incorporated in any other object(s), Chilltech may disconnect or sever in any way whatever as may be necessary to remove the Goods. Chilltech will not be responsible or liable in any way for any damage reasonably caused during the removal of Goods supplied either in the possession of the Customer or a third party.

7. PERFORMANCE OF WORK, RISK AND DELIVERY

7.1 From commencement to completion of the relevant Works, Chilltech shall have exclusive possession of the area, including any surrounding areas, of the Site where the Works are to be performed by Chilltech, as determined by Chilltech acting in its sole discretion (“Relevant Area of the Site”).
7.2 It is the Customer’s responsibility to:
a. ensure safe and adequate site access for the performance of the Works and delivery and unloading of any materials. If such adequate site access has not been provided to Chilltech and Chilltech is required to return to the Customer’s premises at another time(s) or incur other costs, then such additional costs shall be deemed to be a variation to the Contract Price payable by the Customer;
b. unless agreed otherwise, promptly obtain all design work necessary for Chilltech to carry out and complete the Works, including all necessary design calculations, drawings, specifications of materials and workmanship;
c. promptly obtain any necessary consents, approvals, permits, licences or authorisations to enable Chilltech to carry out the Works (“Consents”);
d. promptly obtain any inspections, certifications, code compliance certificates or like approvals by any local or central authority for the Works;
e. promptly provide to Chilltech all plans, specifications, location of services, location of boundaries and other information relating to the Works including (but not limited to) the information referred to in clauses 7.2b, 7.2c and 7.2d (“Plans”), plant, materials, services, details of any covenants or legal restrictions which may affect the Works, and other resources necessary to enable Chilltech to carry out the Works;
f. where any part of the system or structure in respect of which, or on which, the Works are to be performed (“System”) is underground, safely stop any underground services and provide all trenching and similar services so that Chilltech has full and safe access to the required underground locations and underground components of the System.
7.3 Chilltech has no responsibility to check or confirm that the Plans or any other information provided by the Customer is compliant with any applicable legal or other requirement. If the Plans or other information are incorrect, non-compliant or otherwise affect the Works, the Customer indemnifies Chilltech against any costs, expenses or liabilities (including legal costs on a solicitor and own client basis) that Chilltech incurs as a result.

8. CONSENTS

8.1 If any Consents are issued subject to conditions, the Customer must, as soon as practicable, advise Chilltech in writing of these conditions.
8.2 If any Consents are issued subject to any conditions that will require a variation to the Works, the Customer must advise Chilltech, by notice, no later than 10 working days after the date the relevant Consents are issued, of:
a. the extra work that will be required to achieve the variation; and
b. the increase, if any, on the quoted or estimated price for the relevant Works; and
c. the effect, if any, on the due date or the estimated due date for completion of the relevant Works.

9. PLANS

9.1 The Customer accepts that the Plans have been prepared on the assumption that the Site and any existing building are of normal stability and bearing capacity and do not require any work not expressly detailed in Chilltech’s estimate or quote.
9.2 The Customer is responsible for verifying that the Works are suitable for the Site.
9.3 Chilltech is not responsible, and the Customer indemnifies Chilltech, for any claim or dispute arising out of the inadequacy of any inspection of the Site, ground conditions, or any foundation forming parts of the Works.

10. QUALITY

10.1 Chilltech will:
a. carry out the Works in a workmanlike manner and to a standard expected of a reasonably skilled contractor specialising in the relevant type of work; and
b. liaise with the Customer during the course of performing the Works in accordance with any reasonable requests.
c. where Chilltech is carrying out “building work” under a “residential building contract” (as those terms are defined in section 362B of the Building Act 2004):
i. provide the Customer with the checklist and disclosure required (where the relevant circumstances apply);
ii. provide the warranties implied by section 362I of the Building Act 2002; and
iii. will comply with the requirement to remedy defects in accordance with section 362Q of the Building Act 2002.

11. HEALTH AND SAFETY

11.1 Each party will comply with the Health and Safety at Work Act 2015, including all applicable regulations under the Act, as well as all applicable standards and codes of practices relating to Health and Safety. In addition, each party will comply with the other party’s pre-notified and reasonable health and safety policies when on the other party’s premises or site where you are carrying out your business.
11.2 The customer will notify Chilltech of any known hazards or risks including (but not limited to) those arising from the Site, equipment, machinery or otherwise to which a worker or any person may be exposed.
11.3 If Chilltech considers that the Site is not safe, or the Customer has not provided sufficient information about hazards, risks and controls in advance of the Works, then Chilltech may suspend the Works until the Customer has remedied those issues at its costs. Such suspension shall constitute a variation.
11.4 The Customer indemnifies Chilltech for any cost or loss (including legal costs) resulting from a failure to perform the Customer’s obligations under this clause. For the avoidance of doubt, that includes any time or travel at Chilltech’s standard rates which is required by a delay to, or suspension of, the Works.

12. PERSONAL PROPERTY SECURITIES ACT 1999 (“PPSA”)

12.1 As security for all the obligations of the Customer under these Terms, these Terms create a security interest in:
a. all Goods that Chilltech supplies to the Customer and proceeds of such Goods;
b. in any accession or in the whole of any processed or commingled Goods; and
c. where Chilltech is a subcontractor to the Customer and the Customer has contracted with a principal to complete certain work which includes the Works, in the accounts receivable due to the Customer from the principal and money received from the principal.
12.2 The Customer must not grant any other security interest or any lien over the items referred to in clause 12.1.
12.3 At Chilltech’s request, the Customer must promptly sign any documents and do anything else required by Chilltech to ensure that Chilltech’s security interest constitutes a first-ranking perfected security interest in the items referred to in clause 12.1.
12.4 The Customer waives any rights it may have under sections 114(1)(a), 116, 120, 121, 125, 126, 127, 129, 131, 133, and 134 of the PPSA.
12.5 The Customer waives its right to receive a copy of any verification statement (as that term is defined in the PPSA).
12.6 The Customer must promptly give Chilltech prior written notice of any proposed change of the Customer’s name or address.

13. VARIATIONS

13.1 The Customer may ask Chilltech to carry out variations to the Works. Chilltech may, at its discretion, accept or reject variation requests.
13.2 In making a request for a variation under clause 13.1, the Customer must:
a. obtain, and advise Chilltech of, any additional approvals or consents that will be needed; and
b. advise Chilltech of the effect, if any, on any existing approvals or consents for the Works.
13.3 Chilltech shall be entitled to a variation for the actual cost plus any specified Margin of additional work required by:
a. Restricted work access or sharing the Site with separate contractors;
b. Any breach of terms by the Customer or its agents, employees or invitees;
c. Any unforeseen physical conditions or issues not specified in Chilltech’s estimate or quote;
d. Any other matter or event in these Terms which expressly provides that Chilltech is entitled to a variation or is deemed a variation.

14. ESTIMATE OF COMMENCEMENT AND COMPLETION

14.1 Chilltech will use reasonable endeavours to ensure that the Works are performed in accordance with any estimated commencement and completion dates, however, the parties agree that time for completion is at large and shall not be of the essence.
14.2 Chilltech is not obliged to commence the Works until all conditions required by Chilltech specified in Chilltech’s estimate or quote have been satisfied to the full satisfaction of Chilltech.
14.3 Where a Non-Refundable Deposit is required, Chilltech shall not be obliged to commence the Works until the Non-Refundable Deposit has been paid in cleared funds in full.
14.4 Chilltech shall be entitled to an extension of any estimated date for commencement or completion in the event of:
a. Delay caused by:
i. the Customer or any third party outside of Chilltech’s control;
ii. any circumstance not reasonably foreseeable by an experienced contractor;
iii. materials shortages, delivery delays, unavailability of further subcontractors and other supply-related delays;
iv. any local or central government requirement including, but not limited to, in relation to any public health matter;
v. weather sufficiently inclement to interfere with the progress of the Works;
vi. flood, volcanic, seismic events or other natural disasters which affect the ability to complete the Works;
vii. the impact of any pandemic, outbreak, disease, illness or other biological threat which affects the ability to complete the Works. For the avoidance of doubt, this includes COVID-19;
b. Any variation to the Works;
c. Any suspension of the Works under these Terms and/or the Construction Contracts Act 2002.
14.5 Where Chilltech is entitled to an extension of time under these Terms, Chilltech shall be entitled to compensation for any time-related costs incurred in relation to that extension including (but not limited to) expenses or losses and overhead costs together with an allowance for profit.

15. DEFECTS

15.1 Chilltech shall, at its cost, remedy any defect in the Works, any materials supplied by Chilltech or workmanship carried out by Chilltech that do not comply with the requirements of these Terms, that is notified to Chilltech within 12 months from Chilltech completing the Works
15.2 Chilltech shall comply with its obligations under this clause within a reasonable time of receiving notice from the Customer of the defect.
15.3 Chilltech is not liable to remedy a defect if the defect is caused by any of the following:
a. a cause independent of human control;
b. any act or omission, including accidental damage, by Chilltech or a subcontractor to Chilltech;
c. failure to carry out normal maintenance;
d. fair wear and tear; or
e. failure to carry out, or cause to be carried out, repairs as soon as practicable after the defect becomes apparent.

16. WARRANTIES

16.1 Some Goods supplied by Chilltech come with a manufacturer’s warranty. Chilltech passes those manufacturer warranties to the Customer under these Terms but Chilltech does not provide, to the maximum extent permitted by law, any other warranty for any Goods.
16.2 The Consumer Guarantees Act 1993, the Fair Trading Act 1986, the Building Act 2004 and other statutes may impose warranties, conditions or obligations upon Chilltech which cannot by law (or which can only to a limited extent by law) be excluded. Other than as expressly provided for in these Terms, Chilltech excludes all such imposed warranties, conditions or obligations to the maximum extent permitted by law and excludes any warranty, condition or obligation imposed or implied under common law, equity or otherwise.
16.3 Where the Customer acquires the Goods and/or Works for business purposes, the Customer acknowledges and agrees that the guarantees contained in the Consumer Guarantees Act 1993 are excluded (as the Customer is acquiring the Goods and/or Works for the purposes of a business in terms of sections 2 and 43 of that Act), and the Goods and/or Works are supplied and acquired in trade for the purposes of the Fair Trading Act 1986 and that Chilltech (including Chilltech’s representatives) and the Customer contract out of sections 9, 12A, and 13 of that Act.

17. LIMITATION OF LIABILITY

17.1 Except as expressly set out in these Terms, to the maximum extent permitted by law Chilltech will not be liable whether in contract (including any warranty), tort (including negligence), equity or otherwise at law where you have altered or modified the Works or misused them, for loss beyond Chilltech’s control, loss of profits, loss of use, loss of production, loss of business or opportunity, arising indirectly or directly or any consequential loss.
17.2 Chilltech’s liability to the Customer is limited to the estimated or quoted cost of the Works.
17.3 The Customer may not make or pursue any claim against Chilltech in relation to the Works unless the Customer gives written notice and full particulars of the claim to Chilltech within 1 year of the Works being completed.

18. INSURANCE

18.1 The Customer must ensure that, prior to commencement of the Works, any existing structures, vehicles or equipment on the Site are insured against damage which may be caused by the Works for their full replacement cost plus 10% for the cost of demolition.
18.2 Chilltech may require the Customer to provide evidence of such insurances referred upon request as a condition to commencement of the Works.

19. PARTIAL INVALIDITY

19.1 If any provision of these Terms is or becomes invalid or unenforceable, that provision will be deemed deleted from these Terms and such invalidity or unenforceability will not affect the other provisions of these Terms, all of which will remain in full force and effect to the extent permitted by law, subject to any modifications made necessary by the deletion of the invalid or unenforceable provisions.

20. NOTICES

20.1 Any notice or certificate required to be given by these Terms may be given in writing by person, posted, or sent by email to the relevant address used by the Customer in correspondence with Chilltech. Any notice given by Chilltech to the Customer by email is deemed served at the time the email is sent without receiving any default or other automated message indicating unsuccessful transmission.

21. DISPUTES

21.1 Without limitation to the parties’ rights to require adjudication under the Construction Contracts Act 2002, any claim or dispute arising under these Terms of Trade (“Dispute”) shall be subject to the following provisions:
a. If there is a Dispute, either party may give the other party notice of the nature and details of the dispute (“Dispute Notice”). Within 10 Working Days of receipt of the Dispute Notice, the parties will meet to endeavour to resolve the Dispute.
b. If the Dispute is not resolved within 10 Working Days of receipt of a Dispute Notice, either party may by notice to the other party refer the Dispute to mediation (“Mediation Notice”) within 20 working days of receipt of the Dispute Notice. The mediation will be conducted in Whangarei under the LEADR New Zealand Incorporated (“LEADR”) standard mediation agreement. If the parties do not agree on a mediator or the mediator’s fees within 5 Working Days of receipt of the Mediation Notice, the mediator will be appointed, or the fees set by the chair of LEADR (or his/her nominee) at the request of either party. The parties will bear the mediator’s fees equally.
21.2 Nothing in this clause prevents either party from taking immediate steps to seek any urgent equitable relief before the New Zealand Courts.
21.3 Despite the Dispute, each party must continue to perform its obligations under these Terms as far as practicable given the nature of the Dispute. Nothing in this clause affects Chilltech’s rights to suspend work in the event of non-payment of amounts due by the Customer.