1. General

1.1 These Terms of Trade (Terms) govern the supply by Clean Energy Partners Limited (“our”, “us” or “we”) to you (referred to as the “Customer”, “you” or “your”) of Products and Services from time to time. By placing an order for Products with us, or engaging us to provide Services, you are deemed to have agreed that all Products and Services are supplied subject to these Terms.

2. Ownership and Risk

2.1 Ownership of Products supplied by us or materials supplied as part of Services provided by us (together referred to as Goods) will not pass to you until we receive payment in full and you have performed all your other obligations under these Terms.

2.2 Delivery occurs at the time possession of the Goods passes to you (or a person nominated by you, e.g. a third-party carrier) from us.

2.3 The risk in Goods supplied passes to you on delivery.

3. Quotation and Acceptance

3.1 We will provide a quote for all Products and Services requested (which may be a verbal quote). The quote will be valid for a period of 30 days from the date of the quote unless withdrawn by us prior to acceptance.

3.2 By instructing us to proceed with supplying the Products and/or Services (including verbal instruction) you are deemed to have accepted the quote and that the supply of the Products and Services shall be subject to these Terms.

4. Price

4.1 The price for the Products and/or Services will be the price stated in the quote provided, or otherwise advised by us, subject to any variation agreed in writing.

4.2 The price for Products or Services is expressed in New Zealand dollars and excludes GST. GST is payable in addition to the price quoted.

5. Payment

5.1 We will agree payment terms with you at the time of order. Where we have not agreed on terms of payment, you must pay for Goods and Services on their delivery, unless we decide otherwise.

5.2 We are under no obligation to supply Goods or Services to you on credit. If we grant you credit, payment for Products and Services supplied is due on the relevant date it is due. You will make the payments without set-off or deduction of any kind.

6. Default

6.1 If payment is not made on the relevant date it is due, then we may charge default interest at the rate of 12% per annum. The interest will be calculated on a daily basis from the date payment was due until the date payment is received by us. Any failure or delay by us to charge interest on any unpaid account or to exercise any of its rights will not operate as a waiver of those rights. You will also be liable to pay all expenses and legal costs incurred by us as a result of your default in payment. We may apportion payments to outstanding accounts as we see fit.

6.2 Notwithstanding clause 6.1, if payment is outstanding for 7 days from the relevant date it is due, we may suspend providing the Products and Services on credit until the date of payment in full (subject always to clause 6.3). You must pay in cash for Products and Services supplied by us until payment is made in full (together with any accrued interest).

6.3 We may notify you at any time that we have ceased to provide the Products and/or Services on credit. This cessation does not relieve you for amounts owing up to the date on which the contract is terminated.

7. Personal Property Securities Act (“PPSA”)

7.1 These Terms create a security interest in the Goods supplied to you as security for payment of amounts invoiced to and owing by you to us.

7.2 You must not grant any other security interest or any lien over the property and goods that we have a security interest in.

7.3 You agree to execute any documents, provide all relevant information and cooperate fully with us to ensure that we have a first-ranking perfected security interest in the property and goods referred to above.

7.4 We may at any reasonable time enter your premises and properties to uplift Goods that we have a security interest in.

7.5 If Goods that we have a security interest in are processed, included or dealt with in any way causing them to be accessions, processed or commingled goods, our security interest will continue in the whole of which they are included.

7.6 You must not grant any other security interest or any lien in either the Goods or in the whole.

7.7 You waive any rights you may have under sections 114(1)(a), 116, 120(2), 121, 125, 126, 127, 129, 131, 133, and 134 of the PPSA. You waive your right to receive a copy of any verification statement (as that term is defined in the PPSA) but we may provide a copy on request.

7.8 You will give us prior written notice of a proposed change of your name or address.

8. Warranty and Liability

8.1 Except as set out in these Terms or as provided in any separate written agreement signed by us, any and all conditions, guarantees, warranties or representations which might otherwise be implied by law, trade, custom or otherwise are expressly excluded to the maximum extent permitted by law. In particular, the Consumer Guarantees Act 1993, the Fair Trading Act 1986, and other statutes may impose warranties, conditions or obligations upon us which cannot by law (or which can only to a limited extent by law) be excluded. We exclude all such imposed warranties, conditions or obligations to the extent permitted by law and exclude any warranty, condition or obligation imposed or implied under common law, equity or otherwise.

8.2 We will use reasonable endeavours to ensure that any applicable manufacturer’s warranties relating to the Goods are extended to you and, where any of the Products or Services are supplied by a third-party contractor engaged by us, and that third-party contractor causes loss or damage to you in the course of supplying such Products or Services, we will use reasonable endeavours to recover such loss or damage under any contract between us and the third-party contractor. However, you acknowledge and agree that we will not be liable for any loss or damage caused howsoever by that third party contractor in relation to the Products or Services supplied where we are unable to recover such loss or damage from that third party contractor for any reason.

8.3 In addition to, but not a substitute for, any applicable manufacturer’s warranties relating to the Goods, we may, at our discretion, repair or replace any defective Products or re-perform any defective Services, or refund the amount of those Products or Services, provided that any defects in Products or Services supplied have been notified to us in writing within 10 working days of the date the relevant Product is first used and further provided that:

1. you must supply the date and number of any invoice relating to the Products or Services;
2. and
3. we must have a reasonable opportunity to inspect the Products or Services complained of: and
4. we must have no obligation to remedy any damage or defect caused by:
   1. any wilful act or negligence of yours or any other person other than us or our agents, employees or subcontractors;
   2. faulty materials or workmanship other than the work or materials provided by us;
   3. design faults, errors or discrepancies where we were not responsible for design;
   4. unintended use of the Products or failure to maintain the Products in accordance with the stated or recommended instructions or requirements provided by us.

9. Intellectual Property

9.1 All intellectual property (including without limitation copyright, patent and design rights, drawings, documents, data, ideas, procedures and calculations) which arises out of or in the course of the production of the Products or the provision of the Services are our exclusive property, or the exclusive property of any third party contractor engaged by us to undertake the provision of Products and/or Services, unless otherwise agreed in writing.

9.2 We will retain exclusive worldwide ownership at all times of our artistic styles, methods of working, techniques, ideas, skills and know-how.

9.3 You must not attribute the Products or Services to anyone other than us or remove any of our trade marks, signatures, logos or similar from the Products.

10. Confidentiality

10.1 You undertake and agree to treat as secret and confidential, and not at any time for any reason, other than for the purpose of the Terms or as required by law, to disclose or permit to be disclosed to any person, or otherwise make use of, or permit to be made use of, any information relating to the Products or our technical processes, trademarks, business affairs or finances or of any suppliers, agents, distributors, licensees or customers of ours where such knowledge or details were received during the term of these Terms.

11. Default and Termination

11.1 If we have reasonable grounds to believe:

1. you are in material breach of these Terms;
2. you have committed an act of bankruptcy or is placed into liquidation;
3. a receiver or manager has been appointed in respect or any part or the whole of your assets;
4. you sell, part with possession or dispose of any Products or does anything inconsistent with our ownership of the Products prior to making payment in full to us; or
5. the Products are at risk, as that term is defined in the PPSA, we may:
6. withhold delivery of the Products or Services;
7. treat any order for the Products or Services to have been cancelled and enforce its security interest; or
8. immediately terminate these Terms of Trade by notice in writing to you.

11.2 Termination or cancellation of any order will not affect the rights, powers, remedies, obligations, duties and liabilities of either Party which have accrued before termination.

12. Notices

12.1 Any notice may be given in person, posted or sent by fax or email (or where you are a company, to any of its directors, agents or employees at the Customer’s address).

13. Privacy of Information and Authorisations

13.1 You authorise us to:

1. collect, retain and use information about you from any person for the purpose of assisting its creditworthiness;
2. disclose information about you:
   1. (i) to any person who guarantees, or who provides insurance, or who provides any credit support, in relation to your obligations to us;
   2. (ii) to such persons as may be necessary or desirable to enable us to exercise any power or enforce or attempt to enforce any of its rights, remedies and powers under these Terms.

13.2 You agree to provide us with such consents and authorisations as may be necessary to enable us to access any third party data, services or platforms to the extent we require such access to enable the proper provision of Services or supply of Goods under these Terms. Specifically, you authorise us to request, collect, and use your electricity consumption information as your authorised agent via any electricity information exchange administered by the New Zealand Electricity Authority.

14. Dispute Resolution

14.1 Where any dispute arises in connection with these Terms the complaining party must promptly give full written particulars of the dispute to the defaulting party. The Parties must then endeavour to meet and resolve the dispute in good faith.

14.2 Where any dispute remains unresolved within 20 working days of written particulars being given, either party is free to seek resolution of the dispute by whatever means available at law.

14.3 This clause 14 does not apply to:

1. any dispute arising in connection with any attempted renegotiation of these Terms of Trade; or
2. an application by either party for urgent interlocutory relief.

14.4 Pending resolution of any dispute the parties will perform these Terms of Trade in all respects including performance of the matter which is the subject of dispute but a payment due may be withheld if it is in dispute.

15. General

15.1 We will be entitled at any time by notice in writing to vary any provision of these Terms and you will

be bound by such variation.

15.2 You must pay us costs (including legal costs, as between solicitor and client) of and incidental to the enforcement or attempted enforcement of our rights, remedies and powers under these Terms.

15.3 If any of these Terms is held to be invalid, void, unenforceable or illegal for any reason, such provision must be deemed to be severed from these Terms and the remaining provisions must continue in force.

15.4 A failure or delay in enforcing a right pursuant to these Terms is not a waiver of that right. Any waiver must be in writing and signed by the party granting the waiver.

15.5 You must not assign or subcontract any of your rights, powers or obligations under these Terms without our prior written consent.

15.6 If we have given a time frame for delivery of Products or completion of Services, such time frame is approximate only and is not deemed to be of the essence.

15.7 We are not liable to you for any defect, loss, damage or delay caused by a Force Majeure Event.

15.8 These Terms will be governed by the laws of New Zealand and are subject to the non-exclusive jurisdiction of New Zealand.

15.9 These Terms apply in preference to any terms supplied by you. Except as may be set out in a separate written and signed agreement between you and us, these Terms represent the entire agreement of the Parties in relation to the supply of Products and Services.

16. Interpretation

Definitions

16.1 In these Terms of Trade, unless the context indicates otherwise:
Force Majeure Event means an act, event or cause reasonably beyond our control including:

1. an action or inaction of Government, including expropriation, restraint, prohibition, intervention, requisition, requirement, direction or embargo by legislation, regulation, decree or other legally enforceable order; or
2. an act of God, fire, earthquake, storm, flood, landslide, explosion, power failure, sabotage, cyber-attack, national emergency, epidemic, quarantine, radiation or radioactive contamination, or act or war but does not include financial management difficulties or any risk or event, including those listed above, the effects of which could have been prevented by the taking or reasonable care by us, to the extent that the act, event or cause directly or indirectly results in us being prevented from or delayed in performing one or more of its material obligations under these Terms of Trade.

GST means goods and services tax chargeable or for which a person may be liable under the Goods and Services Tax Act 1985.

Parties means us and the Customer and "party" means either one of us or the Customer.

Products means all products we agree to supply, or arrange for a third-party sub-contractor to supply, to you from time to time, including upgrades.

Services means all services we agree to provide, or arrange for a third-party sub-contractor to provide, to you from time to time, including repairs and general servicing.

Working day means any day other than a Saturday or Sunday or Public Holiday observed in New Zealand.

Interpretation

16.2 In these Terms of Trade, unless the context indicates otherwise:

1. terms given a defined meaning have that meaning where the context permits.
2. words referring to the singular include the plural and vice versa.
3. any reference to any of the Parties includes that party's executors, administrators or permitted assigns.
4. everything expressed or implied in these Terms of Trade which involves more than one person binds and benefits those people jointly and severally.
5. clause headings are for reference purposes only.
6. a reference to a person includes any other entity or association recognized by law.
7. all references to dollars and $ are references to New Zealand dollars unless otherwise stated.
8. all periods of time or notice exclude the days on which they are given and include the days on which they expire.
9. except as expressly provided in these Terms, time is of the essence.