Terms and Conditions

1. DEFINITIONS

1.1 “FONKO” means FONKO or Power & Audino Holdings Limited, or any agents thereof.
1.2 “Customer” means and includes, any person or entity acting on behalf of and with the authority of the Customer, or any person or entity purchasing products and services from FONKO; and where an order has been placed with FONKO by an agency or third party, includes that agent or third party. Any entity purchasing Goods on behalf of the Customer expressly warrants that they are authorized by the Customer to do so and indemnifies FONKO on a continuing and unlimited basis for any losses or damages incurred by FONKO as a result of this warranty being incorrect.
1.3 “Goods” and “Services” means (where applicable) all goods, products, services and advice provided by FONKO to the Customer and shall include without limitation the design and manufacture of air conditioning / refrigeration goods including air conditioning ducting and associated goods and all charges for labour, hire charges, insurance charges, or any fee or charge associated with the supply of Goods and Services.
1.4 “Price” shall mean the cost of the Goods and Services as agreed between FONKO and the Customer and includes all charges FONKO is to pay to others on the Customer’s behalf subject to clause 8 of these terms.

2. ACCEPTANCE

2.1 Any instructions received by FONKO from the Customer for the supply of Goods and Services shall constitute a binding contract and acceptance of these terms.

3. COLLECTION AND USE OF INFORMATION

3.1 The Customer noting the requirements under the Privacy Act 1993 acknowledges, authorises and directs that FONKO can seek and obtain from and supply any information concerning the credit or business standing of the Customer to any other trader, merchant, firm organisation, company or other agency or source whatever including any credit agency or association and directs any such person entity to supply and receive and record such information to and from FONKO. The Customer consents to receiving commercial electronic messages from FONKO until such time as this consent is expressly withdrawn.

4. PRICE / TRADING ISSUES

4.1 Any advice supplied to the Customer does not constitute an offer for sale and FONKO reserves the right to decline any order for Goods. All prices are in NZ dollars include Goods and Services Tax and are subject to change in the event of a material increase in the cost of the supply of the Goods beyond the reasonable control of FONKO between the dates of order and delivery; however any quotation given by FONKO is subject to clause 6 of these terms. FONKO has the right to immediate terminate and without any notice or liability, any agreement to supply Goods or Services. FONKO also has the right to require the payment of a deposit before commencing work on the Customer’s order.

5. PAYMENT

5.1 If non account holder, payment shall be received in full and without deduction on completion of services as outlined on quotation. 
5.2 Account holders shall pay in full and without deduction, setoff or counterclaim for the Goods on the 20th day following the month of the invoice and irrespective of whether title has passed to the Customer. FONKO has the right to charge interest on overdue accounts at the rate of 2.5% per month or part month on the balance outstanding from the date payment was due until payment is received. The right of charge interest is without prejudice to FONKO’S other rights in respect of non or late payment.
5.3 FONKO has the right to recover from the Customer all costs and/or expenses incurred in repossession of the Goods or instructing a solicitor or debt collection agency to recover any amount overdue for payment and such costs and expenses shall also bear interest as provided for above. 

6. QUOTATION

6.1 Where a quotation is given by FONKO for Goods and services:
6.1.1 Unless otherwise agreed the quotation shall be valid for thirty (30) days from the date of issue;
6.1.2 Where the Customer provides drawings or specifications to FONKO for the purposes of obtaining a quotation the said information must be clear and in accordance with industry practice and standards. If the said information fails to be of the above standard and this results in additional costs to FONKO or a delay in the provision of services then such costs or damages can be claimed by FONKO from the Customer. The Customer confirms that the said information is all the information required to allow FONKO to provide a competitive quotation for the Goods and Services in question.

7. RISK

7.1 The Goods remain at FONKO’S risk until delivery to the Customer.
7.2 Delivery of Goods shall be deemed complete when delivered to the delivery point agreed with the Customer; or to any agent of the Customer, or are in the control of the Customer or when the Customer has title to the Goods; whichever is the earliest event.
7.3 The time agreed for delivery shall not be an essential term of these terms unless the Customer first gives written notice to FONKO making time of the essence.
7.4 Where FONKO delivers Goods to the Customer by instalments and FONKO fails to deliver or supply on or more instalments the Customer shall not have the right to cancel the order and associated contract but shall only have the right to claim compensation as a severable breach.

8. AGENCY

8.1 The Customer authorises FONKO to contract either as principal or agent for the provision of Goods and Services.
8.2 Where FONKO enters into a contract to the type referred to in clause 8.1 of these terms it shall be read with and form part of these terms and the Customer agrees to pay any amounts due under that contract.

9. TITLE AND SECURITY (PERSONAL PROPERTY SECURITIES ACT 1999) (“PPSA”)

9.1 Should the Customer not pay for the Goods upon making an order the Customer grants to FONKO a first ranking security interest over the Goods (plus any proceeds) and over all its present and after acquired personal property except only for any such property (and its proceeds) in or to which the Customer has rights and which has not been supplied by FONKO to the Customer. On request, the Customer must properly execute any documents and do anything else required by FONKO to ensure that this security interest constitutes a perfected security interest (as defined by the PPSA) including executing any amendments to these terms as reasonably required by FONKO executing any new, replacement or additional security document and providing any information to FONKO to enable it to complete a financing statement or a financing change statement (as defined by the PPSA). The Customer must not agree to any other person or entity filing a financing statement over the Goods without the prior written consent of FONKO and to notify FONKO immediately it becomes aware of any other entity taking steps to file a financing statement over the Goods.
9.2 FONKO shall retain full legal and equitable title in all supplied Goods and title to all supplied Goods shall not pass to the Customer and there shall be no right to deal with, on sell or encumber or mortgage Goods until all payments (including delayed or deferred payments on a credit basis and any enforcement costs or penalty interest) have been paid in full and without deduction, setoff or counterclaim to FONKO.
9.3 The Customer gives irrevocable authority to FONKO to enter any premises occupied by the Customer or on which Goods are situated at any reasonable time after default by the Customer or before default if FONKO believes (in its reasonable opinion) a default is likely and to remove and repossess any Goods and any other property to which Goods are attached or in which Goods are incorporated. FONKO 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 anyway whatsoever unless by statute such liability cannot be excluded. FONKO may either resell any repossessed Goods and credit the Customer’s account with the net proceeds of sale (after deduction of all repossession, storage, selling and other costs as set out in these terms) or may retain any repossessed Goods and credit the Customer’s account with the invoice value thereof less such sum as FONKO reasonably determines on account of wear and tear, depreciation, obsolescence, loss or profit and costs.
9.4 Where Goods are retained by FONKO pursuant to clause 9.3 of these terms, the Customer waives the right to receive notice under s.120 of the PPSA & to object under s.121 of the PPSA.
9.5 The following events shall constitute defaults by the Customer:
9.5.1 Non-payment of any sum by the due date.
9.5.2 The Customer intimates that it will not pay any sum by the due date.
9.5.3 Any Goods are seized by any other creditor of the Customer or any other creditor intimates that it intends to seize Goods.
9.5.4 Any Goods in the possession of the Customer are materially damaged while any sum due from the Customer to FONKO remains unpaid.
9.5.5 The Customer is bankrupted or put into liquidation or administration or if a receiver or manager is appointed to the Customer or to any of the Customer’s assets.
9.5.6 A Court judgment is entered against the Customer and remains unsatisfied for seven (7) days.
9.5.7 Any material adverse change in the financial position of the Customer.
9.6 If the Credit Repossession Act 1997 applies to any transaction between the Customer & FONKO, the Customer has the rights provided in that Act despite anything contained in these terms.

10. PAYMENT ALLOCATION

10.1 FONKO may in its discretion allocate any payment received from the Customer towards any invoice and or costs as provided for in these terms that FONKO 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 FONKO, payment shall be deemed to be allocated in such manner as preserves the maximum value of FONKO’S security interest in the Goods.

11. RETURNS OF GOODS

11.1 No claim relating to the Goods will be considered unless made within seventy two (72) hours of delivery of the Goods to the Customer.
11.2 No Goods will be accepted for return by FONKO without prior approval of FONKO. All Goods must be returned to FONKO in new, original and re saleable condition. Only standard stock items will be accepted for return and goods accepted for return are subject to a restocking fee of $20.00 or 20% of the original invoice value whichever is the greater. Return freight and insurance costs shall be paid by the Customer.

12. LIABILITY

12.1 The Consumer Guarantees Act 1993 (“CGA”), the Fair Trading Act 1986 and other statutes may imply warranties or conditions or impose obligations upon FONKO 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 FONKO, FONKO’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.
12.2 Except as otherwise provided by clause 12.1 of these terms FONKO shall not be liable for:
12.2.1 Any loss or damage of any kind whatsoever including consequential loss whether suffered or incurred by the Customer or another person and whether in contract or tort (including negligence) or otherwise and irrespective of whether such loss or damage arises directly or indirectly from Goods and Services provided by FONKO to the Customer; and
12.2.2 The Customer shall indemnify FONKO against all claims & loss of any kind whatsoever however caused or arising & without limiting the generality of the foregoing of this clause whether caused or arising as a result of the negligence of FONKO or otherwise, brought by any person in connection with any matter, act, omission, or error by FONKO its agents or employees in connection with the Goods and Services.

13. CONSUMER GUARANTEES ACT

13.1 The guarantees contained in the CGA are excluded where the Customer acquires Goods & Services from FONKO for the purposes of a business in terms of section 2 and 43 of the CGA

14. CANCELLATION

14.1 Any cancellation or suspension of any order shall not affect FONKO’S claim for money due at the time of cancellation or suspension or for damages for any breach of the agreement to supply the Goods and/or Services or the Customer’s obligations to FONKO under these terms.

15. PERSONAL GUARANTEE OF COMPANY DIRECTORS OR TRUSTEES

15.1 If the Customer is a company or trust, the director(s) or trustee(s) signing this contract, in consideration for Fonko agreeing to supply Goods and Services and grant credit to the Customer at their request, also sign this contract in their personal capacity and jointly and severally personally undertake as principal debtors to Fonko the payment of any and all monies now or hereafter owed by the Customer to Fonko and indemnify Fonko against non-payment by the Customer. Any personal liability of a signatory hereto shall not exclude the Customer in any way whatsoever from the liabilities and obligations contained in this Contract. The signatories and 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 FONKO 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 FONKO to enforce any of these terms shall not be deemed to be a waiver of any of the rights of obligations FONKO has under these terms.
16.3 If any of these terms shall be invalid, void or illegal or unenforceable the validity existence, legality and enforceability of the remaining terms shall not be affected, prejudiced or impaired.
16.4 The Customer shall not assign all or any of its rights or obligations under these terms without the prior written consent of FONKO.
16.5 In the case of any conflict between these terms or any other document provided by FONKO, these terms shall prevail. These terms shall not be modified or varied unless expressed in writing and agreed to by FONKO and the Customer.
16.6 The Customer by making an order or offer for the Goods by any medium it does so on the basis that the Customer has read, understood and agrees to be bound by these terms having relied solely upon its own judgment. Should the Customer have any queries regarding these terms it should seek independent legal advice before making an order/offer. FONKO is not responsible for any incorrect interpretation of these terms by the Customer.
16.7 FONKO retains all rights in or to any intellectual property associated with the Goods or Services irrespective of their sale or delivery to the Customer.
16.8 Unless FONKO elects otherwise, any dispute between the parties is to be dealt with in accordance with the Arbitration Act 1996.