Terms & Conditions of Trade
1.1 “THE WET SPARKY Or TWS” means THE WET SPARKY LTD., its successors and assigns or any person acting on behalf of and with the authority of THE WET SPARKY LTD.
1.2 “Customer” means the person/s or any person acting on behalf of and with the authority of the Customer requesting THE WET SPARKY LTD. to provide the Services as specified in any proposal, quotation, order, invoice or other documentation, and:
(a) if there is more than one Customer, is a reference to each Customer jointly and severally: and
(b) if the Customer is a part of a Trust, shall be bound in their capacity as a trustee; and
(c) includes the Customer’s executors, administrators, successors and permitted assigns.
1.3 “Goods” means all Goods or Services supplied by THE WET SPARKY LTD. to the Customer at the Customer’s request from time to time (where the context so permits the terms ‘Goods’ or ‘Services’ shall be interchangeable for the other).
1.4 “Price” means the Price payable (plus any Goods and Services Tax (“GST”) where applicable) for the Goods as agreed between THE WET SPARKY LTD. and the Customer in accordance with clause 5 below.
2.1 The Customer is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Customer places an order for or accepts delivery of the Goods.
2.2 These terms and conditions may only be amended with the consent of both parties in writing and shall prevail to the extent of any inconsistency with any other document or contract between the Customer and THE WET SPARKY LTD.
2.3 Any advice, recommendation, information, assistance or service provided by THE WET SPARKY LTD. in relation to Goods or Services supplied is given in good faith, is based on THE WET SPARKY LTD.’s own knowledge and experience and shall be accepted without liability on the part of THE WET SPARKY LTD. and it shall be the responsibility of the Customer to confirm the accuracy and reliability of the same in light of the use to which the Customer makes or intends to make of the Goods or Services.
2.4 The Customer acknowledges and accepts that:
(a) The supply of Goods on credit shall not take effect until the Customer has completed a credit application with THE WET SPARKY LTD. and it has been approved with a credit limit established for the account; and
(b) in the event that the supply of Goods request exceeds the Customer’s credit limit and/or the account exceeds the payment terms, THE WET SPARKY LTD. reserves the right to refuse delivery and/or request an alternative payment method; and
(c) that the supply of Goods for accepted orders may be subject to availability and if, for any reason, Goods are not or cease to be available, THE WET SPARKY LTD. reserves the right to vary the Price with alternative Goods as per clause 5.2.
2.5 All offers are made subject to the relevant import licenses being available or obtainable.
2.6 The Customer shall be responsible for ensuring that the Goods ordered are suitable for their intended use.
2.7 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 Omissions
3.1 The Customer acknowledges and accepts that THE WET SPARKY LTD. shall, without prejudice, accept no liability in respect of any alleged or actual error(s) and/or omission(s):
(a) resulting from an inadvertent mistake made by THE WET SPARKY LTD. in the formation and/or administration of this contract; and/or
(b) contained in/omitted from any literature (hard copy and/or electronic) supplied by THE WET SPARKY LTD. in respect of the Services.
3.2 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 THE WET SPARKY LTD.; the Customer shall not be entitled to treat this contract as repudiated nor render it invalid.
4. Change in Control!
The Customer shall give THE WET SPARKY LTD. not less than fourteen (14) days prior written notice of any proposed change of ownership of the Customer and/or any other change in the Customer’s details (including but not limited to, changes in the Customer’s name, address, contact phone or fax number/s, change of trustees, or business practice). The Customer shall be liable for any loss incurred by THE WET SPARKY LTD. as a result of the Customer’s failure to comply with this clause.
5. Price and Payment
5.1 At THE WET SPARKY LTD.’s sole discretion the Price shall be either:
(a) as indicated on any invoice provided by THE WET SPARKY LTD. to the Customer; or
(b) the Price as at the date of delivery of the Goods according to THE WET SPARKY LTD.’s current price list; or (c)THE WET SPARKY LTD.’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 thirty (30) days.
5.2 THE WET SPARKY LTD. reserves the right to change the Price:
(a) if a variation to the Goods which are to be supplied is requested; or
(b) if a variation to the Services originally scheduled (including any applicable plans or specifications) is requested; or
(c) in the event of increases to THE WET SPARKY LTD. in the cost of labour or materials (including, but not limited to, any variation as a result of obscured Site/building defects which require remedial work, any variation as a result of fluctuations in currency exchange rates and/or international freight and insurance charges, availability of stock or increases to THE WET SPARKY LTD. in the cost of taxes and levies, etc.) which are beyond THE WET SPARKY LTD.’s control.
5.3 Variations will be charged for on the basis of THE WET SPARKY LTD.’s quotation, and will be detailed in writing, and shown as variations on THE WET SPARKY LTD.’s invoice. The Customer shall be required to respond to any variation submitted by THE WET SPARKY LTD. within ten (10) working days. Failure to do so will entitle THE WET SPARKY LTD. 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.
5.4 At THE WET SPARKY LTD.’s sole discretion a non- refundable deposit may be required.
5.5 Time for payment for the Goods being of the essence, the Price will be payable by the Customer on the date/s determined by THE WET SPARKY LTD., which may be:
(a) on delivery of the Goods.
(b) before delivery of the Goods.
(c) by way of installments/progress payments in accordance with THE WET SPARKY LTD.’s payment schedule.
(d) for certain approved Customers, due twenty (20) days following the end of the month in which a statement is posted to the Customer’s address or address for notices.
(e) the date specified on any invoice or other form as being the date for payment; or
(f) failing any notice to the contrary, the date which is seven.
(g) days following the date of any invoice given to the Customer by THE WET SPARKY LTD.
5.6 Payment may be made by cash, cheque, bank cheque, electronic/on-line banking, credit card (a surcharge per transaction may apply), or by any other method as agreed to between the Customer and THE WET SPARKY LTD.
5.7 The Customer shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Customer by THE WET SPARKY LTD. nor to withhold payment of any invoice because part of that invoice is in dispute.
5.8 Unless otherwise stated the Price does not include GST. In addition to the Price, the Customer must pay to THE WET SPARKY LTD. an amount equal to any GST THE WET SPARKY LTD. must pay for any supply by THE WET SPARKY LTD. under this or any other contract for the sale of the Goods. The Customer must pay GST, without deduction or set off any other amounts, at the same time and on the same basis as the Customer pays the Price. In addition, the Customer 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. Delivery of Goods
6.1 Delivery (“Delivery”) of the Goods is taken to occur at the time that:
(a) the Customer or the Customer’s nominated carrier takes possession of the Goods at THE WET SPARKY LTD.’s address; or
(b) THE WET SPARKY LTD. (or THE WET SPARKY LTD.’s nominated carrier) delivers the Goods to the Customer’s nominated address even if the Customer is not present at the address.
6.2 Delivery of the Goods to a third party nominated by the Customer is deemed to be delivery to the Customer for the purposes of this agreement.
6.3 The Customer shall take delivery of the Goods tendered notwithstanding that the quantity so delivered shall be either greater or lesser than the quantity purchased provided that:
(a) such discrepancy in quantity shall not exceed 5%; and
(b) the Price shall be adjusted pro rata to the discrepancy.
6.4 At THE WET SPARKY LTD.’s sole discretion the cost of delivery is either included in the Price or is in addition to the Price.
6.5 Any time specified by THE WET SPARKY LTD. for delivery of the Goods is an estimate only and THE WET SPARKY LTD. will not be liable for any loss or damage incurred by the Customer as a result of delivery being late. However, both parties agree that they shall make every endeavour to enable the Goods to be delivered at the time and place as was arranged between both parties. In the event that THE WET SPARKY LTD. is unable to supply the Goods as agreed solely due to any action or inaction of the Customer, then THE WET SPARKY LTD. shall be entitled to charge a reasonable fee for redelivery and/or storage.
7.1 Risk of damage to or loss of the Goods passes to the Customer on Delivery and the Customer must insure the Goods on or before Delivery.
7.2 If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Customer, THE WET SPARKY LTD. is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by THE WET SPARKY LTD. is sufficient evidence of THE WET SPARKY LTD.’s rights to receive the insurance proceeds without the need for any person dealing with THE WET SPARKY LTD. to make further enquiries.
7.3 If the Customer requests THE WET SPARKY LTD. to leave Goods outside THE WET SPARKY LTD.’s premises for collection or to deliver the Goods to an unattended location then such Goods shall be left at the Customer’s sole risk.
7.4 Where THE WET SPARKY LTD. is required to install the Goods the Customer warrants that the structure of the premises or equipment in or upon which these Goods are to be installed or erected is sound and will sustain the installation and work incidental thereto and THE WET SPARKY LTD. shall not be liable for any claims, demands, losses, damages, costs and expenses howsoever caused or arising should the premises or equipment be unable to accommodate the installation.
7.5 The installation of some Goods can cause water hammer or damage to existing pipe work. The Customer agrees to indemnify THE WET SPARKY LTD. against any such loss, damage or claim that may arise if the existing pipe work is unable to accommodate the installation of the Goods.
7.6 The Customer acknowledges that THE WET SPARKY LTD. is only responsible for parts that are replaced/supplied by THE WET SPARKY LTD. and does not at any stage accept any liability in respect of components supplied by any other third party that subsequently fail and are found to be the source of the failure, the Customer agrees to indemnify THE WET SPARKY LTD. against any loss or damage to the Goods, or caused thereby, or any part thereof howsoever arising.
7.7 THE WET SPARKY LTD. shall not be liable for any defect, deterioration and/or damage to the Goods:
(a) if the Customer does not follow THE WET SPARKY LTD.’s recommendations; and
(b) where Goods are stored off site for extended periods of time as a result of any action/inaction by the Customer; and resulting from incorrect use and/or installation of the Goods by the Customer or any other third party.
8.1 The Customer acknowledges that all descriptive specifications, illustrations, dimensions and weights stated in THE WET SPARKY LTD.’s or the manufacturer’s fact sheets, price lists or advertising material, are approximate only and are given by way of identification only. The Customer shall not be entitled to rely on such information, and any use of such does not constitute a sale by description, and does not form part of the contract, unless expressly stated as such in writing by THE WET SPARKY LTD.
9. Accuracy of Customers Plans and Measurements
9.1 THE WET SPARKY LTD. shall be entitled to rely on the accuracy of any plans, specifications (including, but not limited to CAD drawings) and other information provided by the Customer. The Customer acknowledges and agrees that in the event that any of this information provided by the Customer is inaccurate, THE WET SPARKY LTD. accepts no responsibility for any loss, damages, or costs however resulting from these inaccurate plans, specifications or other information.
9.2 In the event the Customer gives information relating to measurements and quantities of the Goods required to complete the Services, it is the Customer’s responsibility to verify the accuracy of the measurements and quantities, before the Customer or THE WET SPARKY LTD. places an order based on these measurements and quantities. THE WET SPARKY LTD. accepts no responsibility for any loss, damages, or costs however resulting from the Customer’s failure to comply with this clause.
10.1 The Customer shall ensure that THE WET SPARKY LTD. has clear and free access to the work site at all times to enable them to undertake the Services. THE WET SPARKY LTD. 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 THE WET SPARKY LTD.
11.1 THE WET SPARKY LTD. and the Customer agree that ownership of the Goods shall not pass until:
(a) the Customer has paid THE WET SPARKY LTD. all amounts owing to THE WET SPARKY LTD.; and
(b) the Customer has met all of its other obligations to THE WET SPARKY LTD.
11.2 Receipt by THE WET SPARKY LTD. 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 recognized.
11.3 It is further agreed that until ownership of the Goods passes to the Customer in accordance with clause 11.1:
(a) the Customer is only a bailee of the Goods and must return the Goods to THE WET SPARKY LTD. on request.
(b) the Customer holds the benefit of the Customer’s insurance of the Goods on trust for THE WET SPARKY LTD. and must pay to THE WET SPARKY LTD. the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed.
(c) the Customer must not sell, dispose, or otherwise part with possession of the Goods other than in the ordinary course of business and for market value. If the Customer sells, disposes or parts with possession of the Goods then the Customer must hold the proceeds of any such act on trust for THE WET SPARKY LTD. and must pay or deliver the proceeds to THE WET SPARKY LTD. on demand.
(d) the Customer should not convert or process the Goods or intermix them with other goods but if the Customer does so then the Customer holds the resulting product on trust for the benefit of THE WET SPARKY LTD. and must sell, dispose of or return the resulting product to THE WET SPARKY LTD. as it so directs.
(e) the Customer irrevocably authorizes THE WET SPARKY LTD. to enter any premises where THE WET SPARKY LTD. believes the Goods are kept and recover possession of the Goods.
(f) THE WET SPARKY LTD. may recover possession of any Goods in transit whether or not delivery has occurred.
(g) the Customer shall not charge or grant an encumbrance over the Goods nor grant nor otherwise give away any interest in the Goods while they remain the property of THE WET SPARKY LTD.
(h) THE WET SPARKY LTD. may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Customer.
12. Personal Property Securities Act 1999 (“PPSA”)
12.1 Upon assenting to these terms and conditions in writing the Customer acknowledges and agrees that:
(a) these terms and conditions constitute a security agreement for the purposes of the PPSA; and
(b) a security interest is taken in all Goods and/or collateral (account) – being a monetary obligation of the Customer to THE WET SPARKY LTD. for Services – that have previously been supplied and that will be supplied in the future by THE WET SPARKY LTD. to the Customer.
12.2 The Customer undertakes to:
(a) sign any further documents and/or provide any further information (such information to be complete, accurate and up to date in all respects) which THE WET SPARKY LTD. may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register.
(b) indemnify, and upon demand reimburse, THE WET SPARKY LTD. for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register or releasing any Goods charged thereby.
(c) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods and/or collateral (account) in favour of a third party without the prior written consent of THE WET SPARKY LTD.; and
(d) immediately advise THE WET SPARKY LTD. of any material change in its business practices of selling the Goods which would result in a change in the nature of proceeds derived from such sales.
12.3 THE WET SPARKY LTD. and the Customer agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms and conditions.
12.4 The Customer waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA.
12.5 Unless otherwise agreed to in writing by THE WET SPARKY LTD., the Customer waives its right to receive a verification statement in accordance with section 148 of the PPSA. The Customer shall unconditionally ratify any actions taken by THE WET SPARKY LTD. under clauses 12.1 to 12.5.
13. Security and Charge
13.1 In consideration of THE WET SPARKY LTD. agreeing to supply the Goods, the Customer 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 Customer either now or in the future, to secure the performance by the Customer of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
13.2 The Customer indemnifies THE WET SPARKY LTD. from and against all THE WET SPARKY LTD.’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising THE WET SPARKY LTD.’s rights under this clause.
13.3 The Customer irrevocably appoints THE WET SPARKY LTD. and each director of THE WET SPARKY LTD. as the Customer’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 13 including, but not limited to, signing any document on the Customer’s behalf.
14.1 The Customer shall inspect the Goods on delivery and shall within seven (7) days of delivery (time being of the essence) notify THE WET SPARKY LTD. of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Customer shall afford THE WET SPARKY LTD. an opportunity to inspect the Goods within a reasonable time following delivery if the Customer believes the Goods are defective in any way. If the Customer shall fail to comply with these provisions the Goods shall be presumed to be free from any defect or damage. For defective Goods, which THE WET SPARKY LTD. has agreed in writing that the Customer is entitled to reject, THE WET SPARKY LTD.’s liability is limited to either (at THE WET SPARKY LTD.’s discretion) replacing the Goods or repairing the Goods.
14.2 Goods will not be accepted for return other than in accordance with 14.1 above, and provided that:
(a) THE WET SPARKY LTD. has agreed in writing to accept the return of the Goods; and
(b) the Goods are returned at the Customer’s cost within seven (7) days of the delivery date; and
(c) THE WET SPARKY LTD. will not be liable for Goods which have not been stored or used in a proper manner; and
(d) the Goods 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.
14.3 THE WET SPARKY LTD. will not accept the return of Goods for credit.
14.4 Subject to clause 14.1, non-stock list items or Goods made to the Customer’s specifications are not acceptable for credit or return.
15.1 For Goods not manufactured by THE WET SPARKY LTD., the warranty shall be the current warranty provided by the manufacturer of the Goods. THE WET SPARKY LTD. 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 Goods.
16. Consumer Guarantees Act 1993
16.1 If the Customer is acquiring Goods for the purposes of a trade or business, the Customer acknowledges that the provisions of the Consumer Guarantees Act 1993 do not apply to the supply of Goods by THE WET SPARKY LTD. to the Customer.
17. Intellectual Property
17.1 Where THE WET SPARKY LTD. has designed, drawn or developed Goods for the Customer, then the copyright in any designs and drawings and documents shall remain the property of THE WET SPARKY LTD. Under no circumstances may such designs, drawings and documents be used without the express written approval of THE WET SPARKY LTD.
17.2 The Customer warrants that all designs, specifications or instructions given to THE WET SPARKY LTD. will not cause THE WET SPARKY LTD. to infringe any patent, registered, design or trademark in the execution of the Customer’s order and the Customer agrees to indemnify THE WET SPARKY LTD. against any action taken by a third party against THE WET SPARKY LTD. in respect of any such infringement.
17.3 The Customer agrees that THE WET SPARKY LTD. may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings, or Goods which THE WET SPARKY LTD. has created for the Customer.
18. Default and Consequences of Default
18.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of five percent (5%) per calendar month (and at THE WET SPARKY LTD.’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
18.2 If the Customer owes THE WET SPARKY LTD. any money the Customer shall indemnify THE WET SPARKY LTD. from and against all costs and disbursements incurred by THE WET SPARKY LTD. in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, THE WET SPARKY LTD.’s collection agency costs, and bank dishonour fees).
18.3 Further to any other rights or remedies THE WET SPARKY LTD. may have under this contract, if a Customer has made payment to THE WET SPARKY LTD., and the transaction is subsequently reversed, the Customer shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by THE WET SPARKY LTD. under this clause 18 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Customer’s obligations under this contract.
18.4 Without prejudice to THE WET SPARKY LTD.’s other remedies at law THE WET SPARKY LTD. shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to THE WET SPARKY LTD. shall, whether or not due for payment, become immediately payable if:
(a) any money payable to THE WET SPARKY LTD. becomes overdue, or in THE WET SPARKY LTD.’s opinion the Customer will be unable to make a payment when it falls due.
(b) the Customer has exceeded any applicable credit limit provided by THE WET SPARKY LTD.
(c) the Customer becomes insolvent, 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
(d) a receiver, manager, liquidator (provisional or otherwise) or
(e) similar person is appointed in respect of the Customer or any asset of the Customer.
19.1 Without prejudice to any other remedies THE WET SPARKY LTD. may have, if at any time the Customer is in breach of any obligation (including those relating to payment) under these terms and conditions THE WET SPARKY LTD. may suspend or terminate the supply of Goods to the Customer. THE WET SPARKY LTD. will not be liable to the Customer for any loss or damage the Customer suffers because THE WET SPARKY LTD. has exercised its rights under this clause.
19.2 THE WET SPARKY LTD. may cancel any contract to which these terms and conditions apply or cancel delivery of Goods at any time before the Goods are delivered by giving written notice to the Customer. On giving such notice THE WET SPARKY LTD. shall repay to the Customer any money paid by the Customer for the Goods. THE WET SPARKY LTD. shall not be liable for any loss or damage whatsoever arising from such cancellation.
19.3 In the event that the Customer cancels delivery of Goods the Customer shall be liable for any and all loss incurred (whether direct or indirect) by THE WET SPARKY LTD. as a direct result of the cancellation (including, but not limited to, any loss of profits).
19.4 Cancellation of orders for Goods made to the Customer’s specifications, or for non-stock list items, will definitely not be accepted once production has commenced, or an order has been placed.
20. Privacy Act 1993
20.1 The Customer authorizes THE WET SPARKY LTD. or THE WET SPARKY LTD.’s agent to:
(a) access, collect, retain and use any information about the Customer.
(i) (including any overdue fines balance information held by the Ministry of Justice) for the purpose of assessing the Customer’s creditworthiness; or
(ii) for the purpose of marketing products and services to the Customer.
(b) disclose information about the Customer, whether collected by THE WET SPARKY LTD. from the Customer directly or obtained by THE WET SPARKY LTD. 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 Customer.
20.2 Where the Customer is an individual the authorities under clause 20.1 are authorities or consents for the purposes of the Privacy Act 1993.
20.3 The Customer shall have the right to request THE WET SPARKY LTD. for a copy of the information about the Customer retained by THE WET SPARKY LTD. and the right to request THE WET SPARKY LTD. to correct any incorrect information about the Customer held by THE WET SPARKY LTD..
21. Compliance with Laws
21.1 The Customer and THE WET SPARKY LTD. shall comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities that may be applicable to the Services.
21.2 The Customer shall obtain (at the expense of the Customer) all licenses and approvals that may be required for the Services.
22. Dispute Resolution
22.1 All disputes and differences between the Customer and THE WET SPARKY LTD. touching and concerning this agreement shall be referred to arbitration under a single arbitrator agreed upon by both parties, or failing agreement, by two arbitrators (one to be appointed by each party) and their umpire (appointed by them prior to arbitration), such arbitration to be carried out in accordance with provisions of the Arbitration Act 1996.
23. Service of Notices
23.1 Any written notice given under this contract shall be deemed to have been given and received:
(a) by handing the notice to the other party, in person.
(b) by leaving it at the address of the other party as stated in this contract.
(c) by sending it by registered post to the address of the other party as stated in this contract.
(d) 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.
(e) if sent by email to the other party’s last known email address.
23.2 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.
24.1 If the Customer at any time upon or subsequent to entering into the contract is acting in the capacity of trustee of any trust (“Trust”) then whether or not THE WET SPARKY LTD. may have notice of the Trust, the Customer covenants with THE WET SPARKY LTD. as follows:
(a) the contract extends to all rights of indemnity which the Customer now or subsequently may have against the Trust and the trust fund.
(b) the Customer 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 Customer against the Trust or the trust fund. The Customer 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.
(c) the Customer will not without consent in writing of THE WET SPARKY LTD. (THE WET SPARKY LTD. will not unreasonably withhold consent), cause, permit, or suffer to happen any of the following events.
(i) the removal, replacement or retirement of the Customer as trustee of the Trust.
(ii) any alteration to or variation of the terms of the Trust.
(iii) any advancement or distribution of capital of the Trust; or
(iv) any resettlement of the trust property.
25.1 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. 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.
25.2 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 Courts of New Zealand.
25.3 THE WET SPARKY LTD. shall be under no liability whatsoever to the Customer for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by THE WET SPARKY LTD. of these terms and conditions (alternatively THE WET SPARKY LTD.’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Goods).
25.4 THE WET SPARKY LTD. may license and/or assign all or any part of its rights and/or obligations under this contract without the Customer’s consent.
25.5 The Customer cannot license or assign without the written approval of THE WET SPARKY LTD.
25.6 THE WET SPARKY LTD. may elect to subcontract out any part of the Services but shall not be relieved from any liability or obligation under this contract by so doing. Furthermore, the Customer agrees and understands that they have no authority to give any instruction to any of THE WET SPARKY LTD.’s sub- contractors without the authority of THE WET SPARKY LTD. The Customer agrees that THE WET SPARKY LTD. may amend these terms and conditions by notifying the customer in writing.
25.7 Travel time to and from the site is charged and a vehicle charge to cover vehicle running costs. Our quotes only include the installation for the equipment quoted. Variations will be quoted separately. A builder might be required during or after installation for minor repairs or alterations and will be quoted once assessed. Our prices exclude all paintwork, gib work or any other builders work required before during or after installation. Labour charge is for one technician, should a second technician be needed their times will be charged separately. Items quoted are subject to availability on the day the quote is accepted. Warranty on appliances is carried by the manufacturer. Costs will apply to test, remove, and reinstate any appliance in such case. IMPORTANT: The manufacturer’s warranty is valid as long as the pump or equipment has been installed to the manufacturer’s recommendations. From the date of installation, new installations will have a 1 Year Wet Sparky craftsmanship warranty, T&C’s apply. Non-compliant/Non-usable electrical wiring and conduit will need replacing, an additional cost may apply.