The terms specified below will apply to all transactions between the Company and the Client. Any variations to these Terms and Conditions are only accepted where agreed in writing and signed by the Company.
1.1 Price is quoted based on rates and conditions at the date of quotation but is subject to any variation, extras,deletions, price increases and decreases and any applicable taxes incurred or arising between the date of quotation and the date of delivery. Where no quotation applies,prices shall be those ruling at the date of delivery. Until a technically clear order for confirmation has come into existence and deposit paid, our quotations and the prices stated in our price list or quotation shall not be binding. After receipt of an order we reserve the right to undertake such changes, as we may deem expedient for the improvement of machinery, equipment, etc. We also reserve the right to substitute any whole pieces of equipment for another whole piece of equipment if quality and function is the same as the part originally specified. Weights, dimensions, capacities, prices,technical and other data listed in catalogues and other printed matter constitutes an approximate guide. Drawings or technical documents and proposals remain the property of the Company. Drawings are supplied as guidelines only and are not to be used for building construction.
1.2 The Company may withdraw this quotation at any time prior to acceptance. If not withdrawn, this quotation shall remain open for acceptance for a maximum period of 30 days from the date of the quotation when it will be deemed to be withdrawn. Acceptance arises upon the signing and delivery of an acceptance form to the Company. Any variations must be in writing signed by both parties. Quotations,contracts, variations and other communications and agreements between the Company and the Client may be delivered by ordinary post,facsimile or email to the address provided by the parties to each other.
1.3 Hardware purchase in a foreign currency will be calculated at the current day’s exchange rate at the date of purchase. Any adverse exchange rate fluctuations between quotation and delivery will be payable by the Client.
2 LOCAL DUTIES AND TAXES
2.1 Unless otherwise indicated, all prices quoted or submitted do not include any customs charges, port charges, Dairy Authority validations, Aqis validations / permit (Australia), VAT or GST taxes.
3 QUOTATION, P & ID AND FUNCTIONAL DESCRIPTION
3.1 Our quotation is a brief written description of the products within the integrated process and provides an outline of budget prices, and as such the quotation should not be viewed as a complete description of the process. Any items not specified in this quotation shall be deemed not to be included. The P & ID as well as the Functional Description are the basis of the design. Please contact our representative for clarification or to request a variation.Cancellation of a contract shall be effected only with our consent in writing and the Client will indemnify us for our costs in connection with the making and cancellation of the contract and agreements and preparations made for the execution of the contract as well as loss of profit. If after the time of the order, new laws or regulations are introduced that require the parts ordered for the supply to be changed in any way, such changes will not come under the scope of the supply.
3.2 Any quotations are based upon information, product and process information received by us from the Client.If this information is incorrect, this could result in extra cost due to variation. The Company is not responsible for the incorrect operation or functionality or the installation or commissioning of plant supplied by the Client.
3.3 Variations to product composition, or manufacture procedure may result in changes to the quotation and may result in extra charges.
4 DELIVERY, INSTALLATION AND COMMISSIONING
4.1 The Company shall not be responsible for any failure to deliver or delay in delivery, installation or commissioning caused by any act of God, riot, insurrection, fire, flood, strike, lockout, industrial disturbance, accidents, delays in materials, act of any Governmental authority, priorities granted at the request or for the benefit, directly or indirectly of any Government or public authority, shortage of suitable materials, unavailability of or delay in transportation or any cause beyond the control of the Company.
Failure to comply with times of delivery, installation or commissioning shall not entitle the Client to terminate the contract. The Client shall furthermore not be entitled to damages. Times of delivery, installation and commissioning as estimates only and run from the time when all information (including but not limited to permissions, drawings,any advance payments) necessary for starting the work are available, and are stated in effective working days, weeks or months as per the Company quotation, not including statutory holidays, and the Client acknowledges that these times are also dependent on other project work the Company has at the time.
4.2 The Company will use all reasonable endeavours to make delivery, installation and commissioning at the time specified (if any) but if for any reason whatsoever the delivery, installation or commissioning shall be delayed, the Company shall not be responsible for any loss whatsoever sustained by the Client or any other person, firm or corporation by reason of such delay.
4.3 All goods under this quotation will be deemed to have been delivered on the date of delivery to the Client’s premises.
4.4 Even if the Client postpones the agreed date of delivery, payment shall fall due on the day originally agreed unless otherwise agreed in writing. Late payment may result in extra charges and delays in shipping, installation or commissioning.
4.5 Insurance is to the Company’s premise or Port only for international freight, the Client is responsible to insure the goods from the Company’s site or port to their site. Any damaged or missing parts are to be brought to the attention of the freight forwarder and The Company immediately.
4.6 Unless otherwise stated, unpacking and locating the equipment to the areas where they will be in operation is the Client’s care. Unless otherwise stated, commissioning is complete when the plant is carried out on water, this commissioning deems that the plant is complete and meets the quotation specifications.
4.7 At least four weeks’ notice must be given by Client for a commissioning date where the Client is installing the Company plant and where the Company is undertaking commissioning.
4.8 Where the Company quotation specifically states that commissioning on product is included, the Client will make available such raw ingredient as necessary at the Client’s expense.
4.9 Once installation and commissioning has started, but is delayed due to the site not being ready for any reason (eg the Client’s subcontractors have not met installation dates etc) then a daily charge for labour, costs and transport will be paid by the Client.
5.1 The Company warrants the products manufactured by the Company and supplied to the Client shall be free of defects in workmanship and materials for 12 months from date of completion of commissioning when installation is performed by us, or fourteen months from date of shipment, whichever is the earliest. On goods not of the Company’s manufacture that form part of our supplies the Company will grant the same warranties to the Client as that granted to us by our sub-contractor. Exempt from this warranty are refrigeration compressors, until these have been inspected by an independent third party.
Second-hand or reconditioned goods supplied are not covered under any warranty, and any statement of capacities or performance figures for second-hand plant are estimates only and are supplied in good faith on information provided with no guarantee or warranty. Our warranty does not cover and the Client assumes all responsibility for all defects, losses and damages arising from or relating to the consequences of natural wear and tear, overloading,use of inappropriate lubrication material, inadequate tending on the part of the Client, inadequate construction works, nor chemical, electrical or other indirect influences. We also disclaim all responsibility for the errors of any design provided by the Client. If the Client without our consent has work done by third parties, our guarantee on the parts in question will no longer apply, and we will not reimburse expenses or costs incurred in connection with such work.
5.2 The Company warrants that all goods supplied pursuant to this quotation will be in good condition at the date of delivery.
5.3 The Client is responsible for all labour, equipment and charges used or incurred in the removal, transport,installation and commissioning of repaired or replaced goods. The warranty does not cover and the Client assumes all responsibility for all defects, losses and damages arising from or relating to circumstances where the Client or user has performed the commissioning of the plant or performed modification without the prior written consent of the Company.
5.4 Notwithstanding any other provision of these terms and conditions, the Company accepts no responsibility nor provides any warranty for goods supplied and used in a workplace as defined in the Health and Safety at Work Act 2015, and for the avoidance of doubt, the Client acknowledges that it is the Client’s duty to ensure that all goods supplied by the Company are used in accordance with manufacturer’s or the Company’s instructions and maintained in good order and repair for safe use by employees.
5.5 So far as may be permitted by law it is expressly agreed and declared by the Company and the Client that:
5.5.1 All representations or terms (including any condition or warranty and whether expressed or implied by law or otherwise) not expressly included in these conditions are hereby excluded. The goods and services are being supplied by the Company, and acquired by the Client, in trade and that the Consumer Guarantees Act 1993 and sections 9, 12A and 13 of the Fair Trading Act 1986 will not apply between the parties, and that it is fair and reasonable to exclude their application.
5.5.2 All goods are supplied on the basis of these conditions and in the event of any conflict between these conditions and the provisions of any document used by the Client or any other arrangement between the parties, these conditions shall prevail unless otherwise agreed in writing and signed by both parties.
5.5.3 The Company shall be under no liability whatsoever to the Client for or in respect of any representations or terms not expressly set out in these conditions and not effectively excluded under sub-clause 5.5.1 hereof to the intent that these terms and conditions shall be the entire contract between the parties.
5.5.4 Notwithstanding the preceding provisions of this clause, in so far as the Client may, have any claim for damages against the Company at law (it being the intention hereof that no such damages may be recovered) the same shall not include damages for indirect or consequential loss of any kind and shall be limited to the purchase price of the goods or the actual loss or damage suffered (determined in accordance with the principles at common law) whichever shall be the lesser.
5.5.5 The Company’s liability for a breach of warranty is limited to the resupply of parts only.
6 RISK AND OWNERSHIP
6.1 Title (both legal and equitable) in the goods will not pass to the Client until the goods have been paid for in full.
6.2 The goods will be at the Client’s risk immediately on delivery to the Company premises or the port and the Client is responsible for insuring the goods from this time even though title in the goods may not have passed to the Client.
6.3 At the discretion of the Company’s insurers in the event of second-hand plant being totally destroyed during transit the Company may then pay up to double the original sales value of the insured item, plus freight plus 100% as per their insurance policy. The extra cover will only be paid, if the destroyed item is replaced. If the item was not replaced, then the indemnity would revert to the existing basis of settlement, in other words, original sales value,plus freight, plus 10%. In the event of partial loss or damage the policy will reimburse repair costs, including the second-hand cost of parts required. The liability limit would be the declared value.
6.4 Until title in the goods passes to the Client, the Client acknowledges that it holds the goods or any products, which incorporate the goods solely as bailee and in a fiduciary capacity.
6.5 In the event that goods or any products which incorporate the goods sold to the Client include goods in respect of which title has not passed to the Client, the proceeds of the sale of such goods (or the portion of the proceeds of sale of any such mixed products as most closely equated to the proportion of the content of the goods in the mixed products) will belong to the Company and the Client in its capacity as trustee of such proceeds will account for such proceeds to the Company on demand and in no circumstances later than the relevant due date. Pending this accounting such proceeds must not be mingled with any other monies or paid into any overdrawn bank account and will be held by the Client in a separate bank account on behalf of the Company. The Client will be entitled to retain any mark up on the goods as remuneration for acting as agent.
6.6 If the Client makes default in payment or becomes insolvent, bankrupt, calls a meeting of creditors or goes into liquidation (voluntarily or otherwise), the Company may, notwithstanding any waiver of such events by the Company and without prejudice to its other rights, suspend delivery, cancel any order or require payment in cash on any of the deliveries of goods, notwithstanding the terms of payment agreed.
7.1 The Client agrees to pay all costs and expenses incurred by the Company (on a solicitor/Client basis) in obtaining, enforcing or attempting to obtain or enforce payment of any amount owing under these conditions which remain outstanding after the due date for the payment has passed.
8.1 Unless otherwise agreed default interest may be charged at a rate of 24% per annum by the Company on any account unpaid on a daily basis from the due date until actual payment. Payment of interest is without prejudice to the Company’s rights and remedies.
8.2 Invoices will be by monthly progress claims which will be payable the 20th following the invoice date, or as specified in the quotation, deposits paid by the Client are not refundable. All variations are to be paid on completion of the work carried out, if the variation work is substantial then the Company will require a deposit for the variation work before it is carried out and progress payments. If the deposit is not received the variation work will not progress.
9 MEDIATION AND ARBITRATION
9.1 In the event of any dispute of difference arising between the parties hereto concerning the interpretation of this agreement then such dispute shall be referred to either a mediator or arbitration in accordance with the New Zealand Arbitration Act 1996 at the discretion of the Company.
9.2 The arbitration shall be commenced by either party giving to the other notice in writing stating the subject matter of the dispute and that party’s desire to have the matter referred to arbitration.
9.3 The arbitration shall be by a single arbitrator to be agreed upon by the parties or, failing agreement within 10 working days of delivery of the notice to be appointed by the Executive Director of the Arbitrators Institute of New Zealand Incorporated.
9.4 Either party within five working days of receiving any notice under sub clause 9.1 of this clause may give a notice to the other requesting the dispute to be resolved by way of mediation. If such a request is made then the parties shall try to agree upon mediation. If the parties fail to agree upon a mediator within 10 working days of the delivery of the request for mediation the mediator shall be appointed by the President of the District Law Society or his or her nominee. All discussions in mediation shall be without prejudice, and shall not be referred to in any later proceedings. All costs of mediation are to be shared.
9.5 If no agreement has been reached in mediation within 10 working days of the appointment of a mediator then the matter in dispute shall be referred to arbitration in accordance with sub clause 9.3 of this clause.
9.6 Where a dispute goes to arbitration, which has previously been referred to mediation the mediator, shall not be called by either party as a witness and no reference shall be made to discussions held in mediation.
9.7 The award in the arbitration shall be final and binding on the parties.
9.8 All provisions contained in the Second Schedule to the NZ Arbitration Act 1996 shall apply to the arbitration.
10 TITLE AND SECURITY (PERSONAL PROPERTY SECURITIES ACT 1999 - PPSA)
10.1 Title in any goods supplied by the Company passes to the Client only when the Client has made payment in full for all goods and services provided by the Company and of all other sums due to the Company by the Client on any account whatsoever. Until all sums due to the Company by the Client have been paid in full, the Client hereby grants the Company a security interest in all goods supplied by the Company to secure all of the obligations of the Client to the Company under these terms.
10.2 The Client agrees to promptly execute and deliver to the Company all assignments, transfers and other agreements and documents and do anything else which the Company may deem appropriate to perfect the Company’s security interest over the goods and services supplied to the Client, or obtain the priority required by the Company or register a financing statement for a security interest in favour of the Company.
10.3 If the goods and services are attached, fixed or incorporated into any property of the Client, by way of any manufacturing or assembly process by the Client or any third party, title in the goods shall remain with the Company until the Client has made payment for all goods and services, and where those goods are mixed with other property so as to be part of a constituent of any new goods, title to these new goods shall deemed to be assigned to the Company as security for the full satisfaction by the Client of the full amount owing between the Company and Client.
10.4 The Client gives irrevocable authority to the Company and its authorised agents to enter any premises occupied by the Client or on which goods supplied by the Company are situated at any reasonable time after default by the Client or before default if the Company believes a default is likely and to remove and repossess any goods and any other property to which those goods are attached or in which goods are incorporated. The Company will not be liable for any costs, damages, expenses or losses incurred by the Client or any third party as a result of this action, nor liable in contract or in tort or otherwise in any way whatsoever unless by statute such liability cannot be excluded. The Client indemnifies the Company in respect of any cost, expenses and claims resulting from the Company entering onto the premises for this purpose. The Company may either resell any repossessed goods and credit the Client’s account with the net proceeds of sale (after deduction of all repossession, storage, selling and other costs) or may retain any repossessed goods and credit the Client’s account with the invoice value thereof less such sum as the Company reasonably determines on account of wear and tear, depreciation, obsolescence, loss or profit and costs.
10.5 Where goods are retained by the Company pursuant to clause 10.4 and to the extent that Part 9 of the PPSA applies, the Client waives its rights under sections 116, 119, 120, 121, 125, 126, 127, 129, 131 and 132 of the PPSA. The Client waives its rights under Section 148 of the PPSA to receive any financing statement or financing change statement registered by the Company.
10.6 The following shall constitute defaults by the Client:
10.6.1 Non Payment of any sum by the due date;
10.6.2 The Client intimates that it will not pay any sum by the due date;
10.6.3 Any goods are repossessed by any other creditor of the Client or any other Creditor intimates that it intends to repossess goods;
10.6.4 Any goods in the possession of the Client are materially damaged while any sum is due from the Client to the Company;
10.6.5 The Client is bankrupted or put into liquidation or a receiver is appointed to any of the Client’s assets or a landlord detrains against any of the Client’s assets;
10.6.6 A Court judgment is entered against the Client and remains unsatisfied for 7 days; or
10.6.7 Any material adverse change in the financial position of the Client.
11.1 The Company may terminate its contract with the Client for any material breach by the Client provided the Company gives the Client 30 days’ notice within which to remedy the breach and the Client fails to remedy the breach within 30 days of the receipt of the notice. On termination the Client must pay to the Company all payments then due, and all other its actual, reasonable, documented costs and expenses incurred in performing the contract and/or resulting from termination, including the cost of any ordered goods or services the Company is required to pay and the loss of anticipated profits.
11.2 Termination shall be without prejudice to any pre-existing claim either party may have against the other party.