Terms and Conditions
1 INTRODUCTION
1.1 These terms and conditions ("Conditions") shall govern all contracts to which this document relates. The soliciting of any quotation by the Customer, the placing of any order by the Customer, or the acceptance by the Customer of delivery of any goods supplied by the Company shall be deemed acceptance by the Customer of these Conditions to the exclusion of any other terms and conditions including any term or condition contained in any document of the Customer.
1.2 In these Conditions:
a. "Company" means TBOK Enterprises Limited T/A Cut-Ease and its successors and assigns;
b. "Customer" means the party obtaining a quotation from the Company and placing an order to purchase goods from the Company or with whom the Company enters into a contract and its successors;
c. "goods" means goods supplied or to be supplied by the Company to the Customer and includes services whenever appropriate;
d. references to parties are references to the Company and the Customer; and
e. any obligation not to do anything shall be deemed to include an obligation not to suffer, permit or cause that thing to be done.
1.3 The Company may require provision of a guarantee or other security before accepting any order.
1.4 No variation of or substitution of these Conditions (even if included in or referred to in the Customer's order) will be binding on the Company unless accepted by the Company in writing.
1.5 The Company may from time to time vary these Conditions by notice to the Customer. Notice may be given by posting the revised Terms and Conditions of Trade on the Company's website.
1.6 If the Company fails to enforce any terms or to exercise the Company's rights under these terms and conditions, the Company is not deemed to have waived those rights.
1.7 If any provision of these Terms and Conditions is held to be invalid or unenforceable for any reason, the remaining provisions shall remain in full force and effect and the parties shall adjust their respective rights and obligations in accordance with the spirit and intent of the parties as shown by these terms and condition.
1.8 Unless any provision in this agreement expressly provides otherwise, these terms and conditions are not intended to confer a benefit on any person or class of person who is not a part to it.
2 ORDERS
2.1 No order arising out of the acceptance of a quotation or otherwise shall be cancelled without the consent of the Company, and in such cases the Customer shall be liable to refund the Company all costs and expenses incurred by the Company in fulfilling the order up to such date of cancellation.
2.2 All orders are subject to the availability of those products or services. We will endeavour to notify the Customer of non-availability within 1 working day of receipt of the order.
3 DELIVERY
3.1 Goods quoted ex stock are quoted subject to prior sale.
3.2 Any stated delivery times are estimates only and the Company shall not be liable for late delivery by reason of any cause beyond the Company's reasonable control or otherwise. In such circumstances the time for delivery shall be extended by such time as is necessary to enable the Company to make delivery and in such circumstances the Customer shall not be entitled to cancel any orders of goods.
3.3 The Company shall have the right to make partial deliveries of goods and each partial delivery shall be deemed to be a separate contract subject to these terms and conditions.
3.4 Delivery by the Company of any goods to a carrier or any other place notified by the Customer shall be deemed to constitute delivery to the Customer. The Customer shall be deemed to have accepted delivery upon arrival of the goods at that carrier or place.
3.5 In the event that the Customer is unable or unwilling to accept delivery of any goods, or should the Company withhold delivery pending payment or adequate arrangements as to payment, then the Company may store and insure such goods as it thinks fit at the Customer's expense. In such circumstances such goods shall be deemed to have been delivered to the Customer whereupon the Customer shall be liable to make payment in accordance with these Conditions.
4 RISK
4.1 Notwithstanding clause 8 hereof the risk of any loss or damage to or deterioration of any goods supplied by the Company howsoever arising shall be borne by the Customer as from the time of dispatch of the goods from the Company's warehouse and the Company shall be under no obligation to insure any goods from the time of such dispatch.
5 PRICES
5.1 Goods are sold at the prices ruling at the date of delivery irrespective of those applicable at the date of order, unless a quotation has been accepted which would be subject to clause 5.2.
5.2 The prices and terms contained in any quotation are based on the best information available to the Company as to suppliers' prices, rates of exchange, freight costs, insurance premiums, customs duties, sales tax or other government imposts at the date of quotation and any increase thereto prior to the date of delivery shall be for the Customer's account.
5.3 Prices quoted are in New Zealand Dollars and do not include GST, freight charges or insurance premiums unless specifically stated and such amounts shall be payable by the Customer in addition to the price at the rates prevailing as at the date of supply of the goods.
5.4 All prices are correct when published. We reserve the right to alter prices at any time.
6 PAYMENT
6.1 Where credit terms have not been granted prior to delivery, payment for all supplies of goods including GST shall be cash on delivery.
6.2 Where credit terms have been granted, full payment for goods including GST shall be made by the twentieth (20th) day of the month following the month of invoice unless otherwise stipulated.
6.3 The price for the goods shall be tendered by the Customer without deduction or set off of any kind.
6.4 The Company reserves the right to charge interest at 16% per annum on outstanding moneys should payment not be received in full by the Company by the due date, which interest shall accrue on a daily basis and shall accrue after as well as before judgement.
6.5 The Company also reserves the right to recover from the Customer all expenses and legal costs (including solicitor/client costs and debt collector's costs) of the Company in relation to obtaining or seeking to obtain remedy of default in payment by the Customer.
6.6 The Company shall have the option of suspending delivery to the Customer until the Customer has made payment in full of all moneys then due and may also terminate all or any contracts with the Customer by giving the Customer notice in writing.
6.7 The Company accepts payment by direct credit into the Company's nominated bank account. The Company also accepts Visa and MasterCard payments via PayPal's secure payments system which ensures high levels of payment security and are subject to PayPal's terms and conditions. Click the link to be redirected to PayPal's terms and conditions: https://cms.paypal.com/nz/cgi-bin/marketingweb?cmd=_render-content&content_ID=ua/Legal_Hub_full&locale.x=en_US
6.8 The Company reserves the right to charge credit card processing fees.
7 VALIDITY
7.1 The Company may withdraw any quotation given by the Company to the Customer at any time. If a period for acceptance of a quotation is not specified in the quotation itself (but without derogating from the Company's right to withdraw a quotation at any time), a quotation remains open for acceptance for 30 days from the date of quotation and subsequently shall be deemed to be withdrawn.
8 PROPERTY IN GOODS
8.1 Property in any goods supplied by the Company to the Customer shall not pass until the Customer has paid all that is owing to the Company whether in respect of the purchase price of the goods or contingently or otherwise howsoever.
8.2 Until property in the goods passes to the Customer pursuant to clause 8.1, the Customer agrees:
a. to insure and hold the goods as bailee for and in a fiduciary relationship with the Company;
b. to store the goods so that they can be readily identified as belonging to the Company;
c. to maintain the goods in good order and condition and return them to the Company, if required to do so by written notice from the Company;
d. that if the goods are incorporated into any other thing then the Company shall own together with the Customer and any others that may have a like right such proportion of such other thing as the value of such goods supplied by the Company bears to the total value of such other thing; and
e. that the Company shall at any time and from time to time have the right by its servants, agents or independent contractors to enter upon any premises of the Customer where any goods supplied by the Company are located and shall have the right to retake possession of and remove any such goods or any other thing into which any such goods have been incorporated without liability for any damage whatsoever. The Customer may not revoke the permission granted in this sub-clause 8.2(e).
8.3 Prior to property in the goods passing to the Customer pursuant to clause 8.1, the Customer shall be entitled as agent for the Company to sell the goods to a third person for value in the ordinary course of business, provided that the Customer shall:
a. be accountable to the Company for all proceeds derived from any such sale and shall deposit the proceeds from any such sale into a separate and identifiable account so as to clearly identify them as the property of the Company; and
b. hold all rights against the purchasers of any such goods in respect of any non- payment by those purchasers for the goods, in trust for the Company.
8.4 The authority to sell the goods under clause 8.3 shall immediately be revoked if an event of the type referred to in clause 16.1 occurs.
8.5 Prior to property in the goods passing to the Customer pursuant to clause 8.1:
a. the Customer shall not be entitled to intermingle or affix such goods with or to any other objects or otherwise deal with the goods so that they become a constituent part of any other object, without the prior written consent of the Company;
b. in the event that the Company gives its consent to the intermingling, affixing or dealing of the goods pursuant to clause 8.5(a), the Company appoints the Customer as agent for the sale of any such new objects and the Customer shall:
i. be fully accountable to the Company for that part of the proceeds derived on the sale of any such new objects as relates to the amounts owing to the Company in respect of the goods which form part of the new objects;
ii. deposit such part of the proceeds from those sales into a separate and identifiable account so as to clearly identify them as the property of the Company; and
iii. hold such part of the proceeds on trust for the Company.
9 RETURNS
9.1 Goods will be accepted for credit only by prior arrangement with the Company or to the extent that they have been incorrectly supplied.
9.2 Subject to clause 9.1 no returns shall be accepted unless freight has been prepaid, the goods returned are clearly identified, marked with the original invoice number and in the condition in which they were originally delivered. Except where goods have been incorrectly supplied, a restocking fee of 10% may be charged.
9.3 Goods made to special order or purchases specifically for the Customer cannot be returned or credited unless not to specification.
9.4 We do not have to provide a refund if you have changed your mind about a particular purchase. If the goods are faulty, we will meet our obligations under the Consumer Guarantees Act 1993.
10 SHORTAGES
10.1 The Company will only accept claims for shortages in delivery of goods if they are notified to the Company in writing quoting invoice numbers within seven days of delivery. The Company's liability for shortages is limited to making up shortages.
11 WARRANTY
11.1 The Company will repair or replace free of charge any of the goods manufactured by the Company that can be shown to be defective by reason of faulty material or workmanship provided:
a. such defect becomes apparent within 12 months from the date of delivery of the goods; and
b. the goods have been used in a normal manner and not subjected to excessive wear and tear; and
c. the goods have been maintained in accordance with the Company's guidelines; and
d. genuine parts have been used; and
e. the goods have been used for the purpose for which they were designed.
11.2 The Company's liability for any damage caused by goods that fail due to defective materials or workmanship and the Customer's exclusive remedy shall be limited (at the Company's option) to the replacement or repair of the defective equipment, part or parts as originally furnished by the Company or to the refund of the price paid in respect of those goods.
11.3 No claim will lie against the Company under clause 11.1 unless written notice of an alleged defect is given to the Company within 14 days of such defect becoming apparent.
11.4 The warranty on other manufacturers' items will be that of the original manufacturer.
11.5 The Company will bear no liability for any costs of removal, installation, transportation and other like charges that may arise in connection with a warranty claim.
12 EXCLUSION OF GUARANTEES AND WARRANTIES
12.1 It is acknowledged that the acquisition of goods by the Customer from the Company shall be deemed to be for the purposes of a business and accordingly the Consumer Guarantees Act 1993 shall not apply. The Customer agrees, whenever possible, to limit and (if possible) exclude liability under the Consumer Guarantees Act 1993 when it supplies to a third party any goods supplied to it by the Company. In particular, but without limiting the foregoing, the Customer shall ensure that any third party to whom it supplies goods is notified, at or before the time goods are supplied, that the Company does not undertake that repair facilities and parts will be available for the goods beyond the duration of any standard product warranty which is supplied with the goods. Where the provisions of the Consumer Guarantees Act 1993 apply, then these Conditions will be read subject to the application of that Act, and if there is any conflict between these Conditions and that Act, the provisions of that Act will apply.
12.2 Subject to clause 12.1, all warranties, descriptions, representations and conditions as to merchantability, fitness, suitability for any purpose or otherwise, whether of a like nature or not, and whether expressed or implied by law, trade custom or otherwise, are expressly excluded.
12.3 No agent or representative of the Company is authorised to make any representations, statements, warranties, conditions or agreements not expressly set out in these Conditions.
12.4 The Company is not in any way bound by any such unauthorised statements nor can any such statement be taken to form a contract or part of a contract with the Company collateral to this contact.
13 LIMITATION OF LIABILITY
13.1 The liability of the Company (whether in contract, tort or otherwise) for any loss, damage or injury arising directly or indirectly from any defect in or non-compliance of the goods or from any other breach of the Company's obligations hereunder shall not in any event exceed an amount equivalent to the purchase price of the goods (and then only to the extent paid by the Customer).
13.2 The Company shall not be liable for any consequential, indirect or special loss or damage of any kind (including, without limitation, loss of time, inconvenience, loss of product being pumped, and loss of production). It is expressly acknowledged that the Company is not liable for damage or injury caused to other equipment, machinery, buildings, property or persons by reason of the installation or use of its goods. Nor shall the Company be liable for any loss or damage caused by the Customer's servants, agents, customers or other persons.
13.3 The Customer shall indemnify the Company against any claim by the Customer's servants, agents, customers or other persons in respect of any loss damage or injury arising from any defect or non-compliance of the goods supplied.
14 INTELLECTUAL PROPERTY INFRINGEMENT
14.1 The Customer warrants that any design or instructions furnished or given by it shall not be such as will cause the Company in the execution of the contract to infringe any patent, design, trademark or common law right.
14.2 Where the Company has followed any design or instructions furnished or given to the Company, the Customer shall save harmless from and indemnify the Company against all damages, penalties, costs and expenses which the Company may incur or for which it may become liable through any work required to be done in accordance with those instructions or designs which involve an infringement or alleged infringement of any patent, trademark, design or common law right.
15 TERMINATION
15.1 The Company, without liability on its part, shall have the right to cancel any contract with the Customer (so far as it remains unperformed) wholly or in part, or any other contract which has not been completed, and all sums outstanding (whether legally demanded or not and whether then due or not) shall become immediately due and payable to the Company if:
a. the Customer breaches these Conditions, including default in any payment on the due date; or
b. the Customer goes into liquidation, bankruptcy, statutory management or receivership or becomes insolvent or unable to pay its debts or enters into an arrangement or composition with its creditors.
If the Company is forced to take any action to recover from the Customer any amount owing under the contract, or to enforce any provisions of these Conditions, the Company may recover from the Customer all associated costs in incurred by it (including legal costs on a solicitor/client basis and debt collector's costs).
15.2 The Company may at any time at its discretion discontinue its trading relationship with the Customer.
16 DELAY
16.1 The Company shall not be liable for failure or delay in manufacture, supply or delivery occasioned by strike, lockout, Act of God, shortage of stocks, shortage of labour, lack of skilled labour, breakages of machinery, delays in transit, legislative, governmental or other prohibitions or restrictions, fire, flood or hostilities, or any other cause whatsoever (whether similar or not to the foregoing) beyond the Company's reasonable control.
17 WAIVER AND FOREBEARANCE
17.1 All the original rights, powers, exemptions and remedies of the Company shall remain in full force notwithstanding any neglect, forbearance or delay in the enforcement of them.
17.2 The Company shall not be deemed to have waived any Condition unless such waiver shall be in writing under the signature of an authorised officer of the Company and any such waiver, unless the contrary shall be expressly stated, shall apply to and operate only in the particular dealing in respect of which it was given.
18 PERSONAL PROPERTY SECURITIES REGISTER
18.1 The Customer agrees and accepts that these Conditions constitute and create a Security Agreement (as that term is defined in the Personal Property Security Act 1999 ("PPSA")) and that the Company may register a financing statement in respect of these Conditions.
18.2 The Customer hereby grants to the Company a Security Interest (as defined in the PPSA) in favour of the Company in all goods sold or supplied (whether on consignment or otherwise) by the Company to the Customer, to secure payment by the Customer to the Company of all amounts the Customer may owe the Company from time to time. The Customer further agrees that the Company's security interest in the Goods extends to the Proceeds (as defined in the PPSA) of the goods.
18.3 On the Company's request, the Customer shall promptly execute any documents and do anything else required by the Company to ensure that the security interest created under these Conditions constitutes a first ranking perfected security interest over the goods and proceeds. The Customer will also provide the Company with any information the Company may reasonably require to complete a financing statement.
18.4 The Customer:
a. shall immediately notify the Company in writing of any change in the Customer's name; and
b. shall immediately notify the Company of any other information the Company may need in order to complete a financing change statement.
18.5 The Customer will waive any right to receive a copy of a verification statement under the PPSA.
18.6 The Company will pay all costs, expenses and other charges incurred, expended or payable by the Company in relation to the filing of a financing statement or financing change statement.
18.7 The Customer agrees that nothing in sections 114(1)(a), 117(1)(c), 133 and 134 of the PPSA shall apply to these Conditions.
18.8 The Customer agrees that its rights as debtor in sections 116, 119, 120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA shall not apply to these Conditions.
18.9 The Customer will not allow a security interest to be created or registered over the goods in priority to the security interest held by the Company.
19 CREDIT INFORMATION
19.1 The Customer authorises the Company to obtain opinions as to the creditworthiness of the Customer from trade credit agencies, bankers and others and also authorises the Company to disclose any credit information it may hold on file to any such persons.
20 ASSIGNMENT
20.1 The rights and obligations contained in these Conditions are entirely personal to the Customer and accordingly the Customer may not, without the prior written approval of the Company, assign or transfer such rights or obligations to any third person.
21 ARBITRATION
21.1 Any dispute or difference arising out of the construction or interpretation of any clause herein or any accompanying document or the respective rights or obligations of either party to the contract of sale and any claim arising out of the contract evidenced by the acceptance of a quotation or order shall be referred to and settled by arbitration before a single arbitrator in accordance with the provisions of the Arbitration Act 1996 and any statutory re-enactment or modification thereof.
22 JURISDICTION
22.1 The contract arising out of the acceptance of a quotation or order shall be construed according to, and governed by, the laws of New Zealand (but expressly excluding the United Nations Convention on Contracts for the International Sale of Goods - Vienna, 1980) and the parties submit to the non-exclusive jurisdiction of the New Zealand courts.
23 PRIVACY
23.1 When the Customer purchases from the Company, as part of the buying and selling process, the Company collects the personal information you given such as name, address and email address.
23.2 When the Customer browses the Company's store, the Company also automatically receives the Customers' computer's internet protocol (IP) address in order to provide information that helps the Copmany learn about the Customers' browser and operating system.
23.3 The Company may, from time to time, email the Customer with information about products, or other updates. The Customer may unsubscribe from this at any time via the links provided in the communications.
23.4 The Customer can request details of information that the Company holds and ask for corrections at any time.
24 CONSENT
24.1 When the Customer provides the Company with personal information to complete a transaction, verify payments or place an order, the Company implies that the Customer consents to the collection of the information and the use of it for that specific reason only.
24.2 If the Company asks for personal information for a secondary reason, such as marketing, the Company will either ask directly for expressed consent, or provide an opportunity to say no. If after the Customer opts-in, the Customer changes their mind, the Customer may withdraw consent by contacting the Company in writing or by following the unsubscribe instructions contained within the communication.
24.3 Opting out of receiving the above-mentioned messages will not prevent the sending of messages that specifically relate to the Customer's order(s).
25 DISCLOSURE
25.1 The Company may disclose personal information if they are required by law to do so or if their Terms and Conditions are violated. The Company cannot guarantee that their website is secure, and cannot be held responsible for a breach of website security that is beyond the Company's control.
26 THIRD-PARTY PROVIDERS
26.1 In general, the third-party providers used by the Company will only collect, use and disclose Customers' information to the extent necessary to allow them to perform the services they provide to the Company.
26.2 Certain third-party service providers, such as payment gateways and other payment transaction processors, have their own privacy policies in respect to the information the Company is required to provide to them for the Customer's purchase-related transactions. The Company accepts no responsibility or control over the privacy policies of these providers and deems the Customer to have read and accepted these policies entirely and without reservation.
26.3 Where providers are located in or have facilities that are located in a different jurisdiction than either the Company or the Customer, and the Customer elects to proceed with a transaction that involves the services of a third-party service provider, then the Customer accepts that information pertaining to the transaction may become subject to the laws of the jurisdiction(s) in which that service provider or its facilities are located.
26.4 Where the Customer leaves the Company's website, or is redirected to a third-party website or application, the Customer accepts that they are no longer governed by the Company's Privacy Policy or Terms and Conditions of Sale.
27 CHANGES TO POLICY
27.1 The Company reserves the right to modify the privacy policy at any time. Changes and clarifications will take effect immediately upon their posting on the Company's website. If material changes are made to this policy, the Customer will be notifed that it has been updated.
27.2 If the business is acquired or merged with another company, the Customer's information may be transferred to the new owners.
1.1 These terms and conditions ("Conditions") shall govern all contracts to which this document relates. The soliciting of any quotation by the Customer, the placing of any order by the Customer, or the acceptance by the Customer of delivery of any goods supplied by the Company shall be deemed acceptance by the Customer of these Conditions to the exclusion of any other terms and conditions including any term or condition contained in any document of the Customer.
1.2 In these Conditions:
a. "Company" means TBOK Enterprises Limited T/A Cut-Ease and its successors and assigns;
b. "Customer" means the party obtaining a quotation from the Company and placing an order to purchase goods from the Company or with whom the Company enters into a contract and its successors;
c. "goods" means goods supplied or to be supplied by the Company to the Customer and includes services whenever appropriate;
d. references to parties are references to the Company and the Customer; and
e. any obligation not to do anything shall be deemed to include an obligation not to suffer, permit or cause that thing to be done.
1.3 The Company may require provision of a guarantee or other security before accepting any order.
1.4 No variation of or substitution of these Conditions (even if included in or referred to in the Customer's order) will be binding on the Company unless accepted by the Company in writing.
1.5 The Company may from time to time vary these Conditions by notice to the Customer. Notice may be given by posting the revised Terms and Conditions of Trade on the Company's website.
1.6 If the Company fails to enforce any terms or to exercise the Company's rights under these terms and conditions, the Company is not deemed to have waived those rights.
1.7 If any provision of these Terms and Conditions is held to be invalid or unenforceable for any reason, the remaining provisions shall remain in full force and effect and the parties shall adjust their respective rights and obligations in accordance with the spirit and intent of the parties as shown by these terms and condition.
1.8 Unless any provision in this agreement expressly provides otherwise, these terms and conditions are not intended to confer a benefit on any person or class of person who is not a part to it.
2 ORDERS
2.1 No order arising out of the acceptance of a quotation or otherwise shall be cancelled without the consent of the Company, and in such cases the Customer shall be liable to refund the Company all costs and expenses incurred by the Company in fulfilling the order up to such date of cancellation.
2.2 All orders are subject to the availability of those products or services. We will endeavour to notify the Customer of non-availability within 1 working day of receipt of the order.
3 DELIVERY
3.1 Goods quoted ex stock are quoted subject to prior sale.
3.2 Any stated delivery times are estimates only and the Company shall not be liable for late delivery by reason of any cause beyond the Company's reasonable control or otherwise. In such circumstances the time for delivery shall be extended by such time as is necessary to enable the Company to make delivery and in such circumstances the Customer shall not be entitled to cancel any orders of goods.
3.3 The Company shall have the right to make partial deliveries of goods and each partial delivery shall be deemed to be a separate contract subject to these terms and conditions.
3.4 Delivery by the Company of any goods to a carrier or any other place notified by the Customer shall be deemed to constitute delivery to the Customer. The Customer shall be deemed to have accepted delivery upon arrival of the goods at that carrier or place.
3.5 In the event that the Customer is unable or unwilling to accept delivery of any goods, or should the Company withhold delivery pending payment or adequate arrangements as to payment, then the Company may store and insure such goods as it thinks fit at the Customer's expense. In such circumstances such goods shall be deemed to have been delivered to the Customer whereupon the Customer shall be liable to make payment in accordance with these Conditions.
4 RISK
4.1 Notwithstanding clause 8 hereof the risk of any loss or damage to or deterioration of any goods supplied by the Company howsoever arising shall be borne by the Customer as from the time of dispatch of the goods from the Company's warehouse and the Company shall be under no obligation to insure any goods from the time of such dispatch.
5 PRICES
5.1 Goods are sold at the prices ruling at the date of delivery irrespective of those applicable at the date of order, unless a quotation has been accepted which would be subject to clause 5.2.
5.2 The prices and terms contained in any quotation are based on the best information available to the Company as to suppliers' prices, rates of exchange, freight costs, insurance premiums, customs duties, sales tax or other government imposts at the date of quotation and any increase thereto prior to the date of delivery shall be for the Customer's account.
5.3 Prices quoted are in New Zealand Dollars and do not include GST, freight charges or insurance premiums unless specifically stated and such amounts shall be payable by the Customer in addition to the price at the rates prevailing as at the date of supply of the goods.
5.4 All prices are correct when published. We reserve the right to alter prices at any time.
6 PAYMENT
6.1 Where credit terms have not been granted prior to delivery, payment for all supplies of goods including GST shall be cash on delivery.
6.2 Where credit terms have been granted, full payment for goods including GST shall be made by the twentieth (20th) day of the month following the month of invoice unless otherwise stipulated.
6.3 The price for the goods shall be tendered by the Customer without deduction or set off of any kind.
6.4 The Company reserves the right to charge interest at 16% per annum on outstanding moneys should payment not be received in full by the Company by the due date, which interest shall accrue on a daily basis and shall accrue after as well as before judgement.
6.5 The Company also reserves the right to recover from the Customer all expenses and legal costs (including solicitor/client costs and debt collector's costs) of the Company in relation to obtaining or seeking to obtain remedy of default in payment by the Customer.
6.6 The Company shall have the option of suspending delivery to the Customer until the Customer has made payment in full of all moneys then due and may also terminate all or any contracts with the Customer by giving the Customer notice in writing.
6.7 The Company accepts payment by direct credit into the Company's nominated bank account. The Company also accepts Visa and MasterCard payments via PayPal's secure payments system which ensures high levels of payment security and are subject to PayPal's terms and conditions. Click the link to be redirected to PayPal's terms and conditions: https://cms.paypal.com/nz/cgi-bin/marketingweb?cmd=_render-content&content_ID=ua/Legal_Hub_full&locale.x=en_US
6.8 The Company reserves the right to charge credit card processing fees.
7 VALIDITY
7.1 The Company may withdraw any quotation given by the Company to the Customer at any time. If a period for acceptance of a quotation is not specified in the quotation itself (but without derogating from the Company's right to withdraw a quotation at any time), a quotation remains open for acceptance for 30 days from the date of quotation and subsequently shall be deemed to be withdrawn.
8 PROPERTY IN GOODS
8.1 Property in any goods supplied by the Company to the Customer shall not pass until the Customer has paid all that is owing to the Company whether in respect of the purchase price of the goods or contingently or otherwise howsoever.
8.2 Until property in the goods passes to the Customer pursuant to clause 8.1, the Customer agrees:
a. to insure and hold the goods as bailee for and in a fiduciary relationship with the Company;
b. to store the goods so that they can be readily identified as belonging to the Company;
c. to maintain the goods in good order and condition and return them to the Company, if required to do so by written notice from the Company;
d. that if the goods are incorporated into any other thing then the Company shall own together with the Customer and any others that may have a like right such proportion of such other thing as the value of such goods supplied by the Company bears to the total value of such other thing; and
e. that the Company shall at any time and from time to time have the right by its servants, agents or independent contractors to enter upon any premises of the Customer where any goods supplied by the Company are located and shall have the right to retake possession of and remove any such goods or any other thing into which any such goods have been incorporated without liability for any damage whatsoever. The Customer may not revoke the permission granted in this sub-clause 8.2(e).
8.3 Prior to property in the goods passing to the Customer pursuant to clause 8.1, the Customer shall be entitled as agent for the Company to sell the goods to a third person for value in the ordinary course of business, provided that the Customer shall:
a. be accountable to the Company for all proceeds derived from any such sale and shall deposit the proceeds from any such sale into a separate and identifiable account so as to clearly identify them as the property of the Company; and
b. hold all rights against the purchasers of any such goods in respect of any non- payment by those purchasers for the goods, in trust for the Company.
8.4 The authority to sell the goods under clause 8.3 shall immediately be revoked if an event of the type referred to in clause 16.1 occurs.
8.5 Prior to property in the goods passing to the Customer pursuant to clause 8.1:
a. the Customer shall not be entitled to intermingle or affix such goods with or to any other objects or otherwise deal with the goods so that they become a constituent part of any other object, without the prior written consent of the Company;
b. in the event that the Company gives its consent to the intermingling, affixing or dealing of the goods pursuant to clause 8.5(a), the Company appoints the Customer as agent for the sale of any such new objects and the Customer shall:
i. be fully accountable to the Company for that part of the proceeds derived on the sale of any such new objects as relates to the amounts owing to the Company in respect of the goods which form part of the new objects;
ii. deposit such part of the proceeds from those sales into a separate and identifiable account so as to clearly identify them as the property of the Company; and
iii. hold such part of the proceeds on trust for the Company.
9 RETURNS
9.1 Goods will be accepted for credit only by prior arrangement with the Company or to the extent that they have been incorrectly supplied.
9.2 Subject to clause 9.1 no returns shall be accepted unless freight has been prepaid, the goods returned are clearly identified, marked with the original invoice number and in the condition in which they were originally delivered. Except where goods have been incorrectly supplied, a restocking fee of 10% may be charged.
9.3 Goods made to special order or purchases specifically for the Customer cannot be returned or credited unless not to specification.
9.4 We do not have to provide a refund if you have changed your mind about a particular purchase. If the goods are faulty, we will meet our obligations under the Consumer Guarantees Act 1993.
10 SHORTAGES
10.1 The Company will only accept claims for shortages in delivery of goods if they are notified to the Company in writing quoting invoice numbers within seven days of delivery. The Company's liability for shortages is limited to making up shortages.
11 WARRANTY
11.1 The Company will repair or replace free of charge any of the goods manufactured by the Company that can be shown to be defective by reason of faulty material or workmanship provided:
a. such defect becomes apparent within 12 months from the date of delivery of the goods; and
b. the goods have been used in a normal manner and not subjected to excessive wear and tear; and
c. the goods have been maintained in accordance with the Company's guidelines; and
d. genuine parts have been used; and
e. the goods have been used for the purpose for which they were designed.
11.2 The Company's liability for any damage caused by goods that fail due to defective materials or workmanship and the Customer's exclusive remedy shall be limited (at the Company's option) to the replacement or repair of the defective equipment, part or parts as originally furnished by the Company or to the refund of the price paid in respect of those goods.
11.3 No claim will lie against the Company under clause 11.1 unless written notice of an alleged defect is given to the Company within 14 days of such defect becoming apparent.
11.4 The warranty on other manufacturers' items will be that of the original manufacturer.
11.5 The Company will bear no liability for any costs of removal, installation, transportation and other like charges that may arise in connection with a warranty claim.
12 EXCLUSION OF GUARANTEES AND WARRANTIES
12.1 It is acknowledged that the acquisition of goods by the Customer from the Company shall be deemed to be for the purposes of a business and accordingly the Consumer Guarantees Act 1993 shall not apply. The Customer agrees, whenever possible, to limit and (if possible) exclude liability under the Consumer Guarantees Act 1993 when it supplies to a third party any goods supplied to it by the Company. In particular, but without limiting the foregoing, the Customer shall ensure that any third party to whom it supplies goods is notified, at or before the time goods are supplied, that the Company does not undertake that repair facilities and parts will be available for the goods beyond the duration of any standard product warranty which is supplied with the goods. Where the provisions of the Consumer Guarantees Act 1993 apply, then these Conditions will be read subject to the application of that Act, and if there is any conflict between these Conditions and that Act, the provisions of that Act will apply.
12.2 Subject to clause 12.1, all warranties, descriptions, representations and conditions as to merchantability, fitness, suitability for any purpose or otherwise, whether of a like nature or not, and whether expressed or implied by law, trade custom or otherwise, are expressly excluded.
12.3 No agent or representative of the Company is authorised to make any representations, statements, warranties, conditions or agreements not expressly set out in these Conditions.
12.4 The Company is not in any way bound by any such unauthorised statements nor can any such statement be taken to form a contract or part of a contract with the Company collateral to this contact.
13 LIMITATION OF LIABILITY
13.1 The liability of the Company (whether in contract, tort or otherwise) for any loss, damage or injury arising directly or indirectly from any defect in or non-compliance of the goods or from any other breach of the Company's obligations hereunder shall not in any event exceed an amount equivalent to the purchase price of the goods (and then only to the extent paid by the Customer).
13.2 The Company shall not be liable for any consequential, indirect or special loss or damage of any kind (including, without limitation, loss of time, inconvenience, loss of product being pumped, and loss of production). It is expressly acknowledged that the Company is not liable for damage or injury caused to other equipment, machinery, buildings, property or persons by reason of the installation or use of its goods. Nor shall the Company be liable for any loss or damage caused by the Customer's servants, agents, customers or other persons.
13.3 The Customer shall indemnify the Company against any claim by the Customer's servants, agents, customers or other persons in respect of any loss damage or injury arising from any defect or non-compliance of the goods supplied.
14 INTELLECTUAL PROPERTY INFRINGEMENT
14.1 The Customer warrants that any design or instructions furnished or given by it shall not be such as will cause the Company in the execution of the contract to infringe any patent, design, trademark or common law right.
14.2 Where the Company has followed any design or instructions furnished or given to the Company, the Customer shall save harmless from and indemnify the Company against all damages, penalties, costs and expenses which the Company may incur or for which it may become liable through any work required to be done in accordance with those instructions or designs which involve an infringement or alleged infringement of any patent, trademark, design or common law right.
15 TERMINATION
15.1 The Company, without liability on its part, shall have the right to cancel any contract with the Customer (so far as it remains unperformed) wholly or in part, or any other contract which has not been completed, and all sums outstanding (whether legally demanded or not and whether then due or not) shall become immediately due and payable to the Company if:
a. the Customer breaches these Conditions, including default in any payment on the due date; or
b. the Customer goes into liquidation, bankruptcy, statutory management or receivership or becomes insolvent or unable to pay its debts or enters into an arrangement or composition with its creditors.
If the Company is forced to take any action to recover from the Customer any amount owing under the contract, or to enforce any provisions of these Conditions, the Company may recover from the Customer all associated costs in incurred by it (including legal costs on a solicitor/client basis and debt collector's costs).
15.2 The Company may at any time at its discretion discontinue its trading relationship with the Customer.
16 DELAY
16.1 The Company shall not be liable for failure or delay in manufacture, supply or delivery occasioned by strike, lockout, Act of God, shortage of stocks, shortage of labour, lack of skilled labour, breakages of machinery, delays in transit, legislative, governmental or other prohibitions or restrictions, fire, flood or hostilities, or any other cause whatsoever (whether similar or not to the foregoing) beyond the Company's reasonable control.
17 WAIVER AND FOREBEARANCE
17.1 All the original rights, powers, exemptions and remedies of the Company shall remain in full force notwithstanding any neglect, forbearance or delay in the enforcement of them.
17.2 The Company shall not be deemed to have waived any Condition unless such waiver shall be in writing under the signature of an authorised officer of the Company and any such waiver, unless the contrary shall be expressly stated, shall apply to and operate only in the particular dealing in respect of which it was given.
18 PERSONAL PROPERTY SECURITIES REGISTER
18.1 The Customer agrees and accepts that these Conditions constitute and create a Security Agreement (as that term is defined in the Personal Property Security Act 1999 ("PPSA")) and that the Company may register a financing statement in respect of these Conditions.
18.2 The Customer hereby grants to the Company a Security Interest (as defined in the PPSA) in favour of the Company in all goods sold or supplied (whether on consignment or otherwise) by the Company to the Customer, to secure payment by the Customer to the Company of all amounts the Customer may owe the Company from time to time. The Customer further agrees that the Company's security interest in the Goods extends to the Proceeds (as defined in the PPSA) of the goods.
18.3 On the Company's request, the Customer shall promptly execute any documents and do anything else required by the Company to ensure that the security interest created under these Conditions constitutes a first ranking perfected security interest over the goods and proceeds. The Customer will also provide the Company with any information the Company may reasonably require to complete a financing statement.
18.4 The Customer:
a. shall immediately notify the Company in writing of any change in the Customer's name; and
b. shall immediately notify the Company of any other information the Company may need in order to complete a financing change statement.
18.5 The Customer will waive any right to receive a copy of a verification statement under the PPSA.
18.6 The Company will pay all costs, expenses and other charges incurred, expended or payable by the Company in relation to the filing of a financing statement or financing change statement.
18.7 The Customer agrees that nothing in sections 114(1)(a), 117(1)(c), 133 and 134 of the PPSA shall apply to these Conditions.
18.8 The Customer agrees that its rights as debtor in sections 116, 119, 120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA shall not apply to these Conditions.
18.9 The Customer will not allow a security interest to be created or registered over the goods in priority to the security interest held by the Company.
19 CREDIT INFORMATION
19.1 The Customer authorises the Company to obtain opinions as to the creditworthiness of the Customer from trade credit agencies, bankers and others and also authorises the Company to disclose any credit information it may hold on file to any such persons.
20 ASSIGNMENT
20.1 The rights and obligations contained in these Conditions are entirely personal to the Customer and accordingly the Customer may not, without the prior written approval of the Company, assign or transfer such rights or obligations to any third person.
21 ARBITRATION
21.1 Any dispute or difference arising out of the construction or interpretation of any clause herein or any accompanying document or the respective rights or obligations of either party to the contract of sale and any claim arising out of the contract evidenced by the acceptance of a quotation or order shall be referred to and settled by arbitration before a single arbitrator in accordance with the provisions of the Arbitration Act 1996 and any statutory re-enactment or modification thereof.
22 JURISDICTION
22.1 The contract arising out of the acceptance of a quotation or order shall be construed according to, and governed by, the laws of New Zealand (but expressly excluding the United Nations Convention on Contracts for the International Sale of Goods - Vienna, 1980) and the parties submit to the non-exclusive jurisdiction of the New Zealand courts.
23 PRIVACY
23.1 When the Customer purchases from the Company, as part of the buying and selling process, the Company collects the personal information you given such as name, address and email address.
23.2 When the Customer browses the Company's store, the Company also automatically receives the Customers' computer's internet protocol (IP) address in order to provide information that helps the Copmany learn about the Customers' browser and operating system.
23.3 The Company may, from time to time, email the Customer with information about products, or other updates. The Customer may unsubscribe from this at any time via the links provided in the communications.
23.4 The Customer can request details of information that the Company holds and ask for corrections at any time.
24 CONSENT
24.1 When the Customer provides the Company with personal information to complete a transaction, verify payments or place an order, the Company implies that the Customer consents to the collection of the information and the use of it for that specific reason only.
24.2 If the Company asks for personal information for a secondary reason, such as marketing, the Company will either ask directly for expressed consent, or provide an opportunity to say no. If after the Customer opts-in, the Customer changes their mind, the Customer may withdraw consent by contacting the Company in writing or by following the unsubscribe instructions contained within the communication.
24.3 Opting out of receiving the above-mentioned messages will not prevent the sending of messages that specifically relate to the Customer's order(s).
25 DISCLOSURE
25.1 The Company may disclose personal information if they are required by law to do so or if their Terms and Conditions are violated. The Company cannot guarantee that their website is secure, and cannot be held responsible for a breach of website security that is beyond the Company's control.
26 THIRD-PARTY PROVIDERS
26.1 In general, the third-party providers used by the Company will only collect, use and disclose Customers' information to the extent necessary to allow them to perform the services they provide to the Company.
26.2 Certain third-party service providers, such as payment gateways and other payment transaction processors, have their own privacy policies in respect to the information the Company is required to provide to them for the Customer's purchase-related transactions. The Company accepts no responsibility or control over the privacy policies of these providers and deems the Customer to have read and accepted these policies entirely and without reservation.
26.3 Where providers are located in or have facilities that are located in a different jurisdiction than either the Company or the Customer, and the Customer elects to proceed with a transaction that involves the services of a third-party service provider, then the Customer accepts that information pertaining to the transaction may become subject to the laws of the jurisdiction(s) in which that service provider or its facilities are located.
26.4 Where the Customer leaves the Company's website, or is redirected to a third-party website or application, the Customer accepts that they are no longer governed by the Company's Privacy Policy or Terms and Conditions of Sale.
27 CHANGES TO POLICY
27.1 The Company reserves the right to modify the privacy policy at any time. Changes and clarifications will take effect immediately upon their posting on the Company's website. If material changes are made to this policy, the Customer will be notifed that it has been updated.
27.2 If the business is acquired or merged with another company, the Customer's information may be transferred to the new owners.