“Contract” means the terms and conditions contained herein, together with any quotation, order, invoice or other document or amendments
expressed to be supplemental to this Contract.
“Cookies” means small files which are stored on a user’s computer. They are designed to hold a modest amount of data (including Personal Information) specific to a particular client and website, and can be accessed either by the web server or the client’s computer. If the Customer does not wish to allow Cookies to operate in the background when using the Seller’s website, then the Customer shall have the right to enable / disable the Cookies first by selecting the option to enable / disable provided on the website, prior to making enquiries via the website.
“Customer” means the person/s, entities or any person acting on behalf of and with the authority of the Customer requesting the Seller to provide the Services as specified in any proposal, quotation, order, invoice or other documentation, and:
if there is more than one Customer, is a reference to each Customer jointly and severally; and
if the Customer is a partnership, it shall bind each partner jointly and severally; and
if the Customer is a part of a Trust, shall be bound in their capacity as a trustee; and
includes the Customer’s executors, administrators, successors and permitted assigns.
“Goods” means all Goods or Services (including consultation and/or installation services) supplied by the Seller to the Customer at the Customer’s request from time to time (where the context so permits the terms ‘Goods’ or ‘Services’ shall be interchangeable for the other).
“Price” means the Price payable (plus any Goods and Services Tax (“GST”) where applicable) for the Goods as agreed between the Seller and the Customer in accordance with clause 6
“Seller” means Farm Supplies (Central) Limited, its successors and assigns.
The Customer is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Customer places an order for or accepts delivery of the Goods.
In the event of any inconsistency between the terms and conditions of this Contract and any other prior document or schedule that the parties have entered into, the terms of this Contract shall prevail.
Any amendment to the terms and conditions contained in this Contract may only be amended in writing by the consent of both parties.
The Customer acknowledges that the supply of Goods on credit shall not take effect until the Customer has completed a credit application with the Seller and it has been approved with a credit limit established for the account.
In the event that:
the supply of Goods requested exceeds the Customer’s credit limit and/or the account exceeds the payment terms, the Seller reserves the right to refuse delivery;
the Seller is required to provide the Services urgently, that may require the Seller’s staff to work outside normal business hours (including, but not limited to ,working through lunch breaks, weekends and/or Public Holidays) then the Seller reserves the right to charge the Customer additional labour costs.
The supply of Goods for accepted orders may be subject to availability and if, for any reason, Goods are not or cease to be available, the Seller reserves the right to substitute comparable Goods (or components of the Goods) and vary the Price as per clause 2. In all such cases the Seller will notify the Customer in advance of any such substitution, and also reserves the right to place the Customer’s order on hold until such time as the Seller and the Customer agree to such changes.
If the Seller has been requested by the Customer to diagnose a fault that requires investigation, disassembly and/or testing, all costs involved will be charged to the Customer irrespective of whether or not the repair goes ahead.
None of the Seller’s agents or representatives are authorised to make any representations, statements, conditions or agreements not expressed by the manager of the Seller in writing nor is the Seller bound by any such unauthorised statements.
Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 226 of the Contract and Commercial Law Act 2017 or any other applicable provisions of that Act or any Regulations referred to in that Act.
Unless otherwise limited as per clause 2 the Customer agrees that should the Customer introduce any third party to the Seller as the Customer’s duly authorised representative, that once introduced that person shall have the full authority of the Customer to order any Goods or Services on the Customer’s behalf and/or to request any variation thereto (such authority to continue until all requested Goods have been delivered or the Customer otherwise notifies the Seller in writing that said person is no longer the Customer’s duly authorised representative).
In the event that the Customer’s duly authorised representative as per clause 1 is to have only limited authority to act on the Customer’s behalf then the Customer must specifically and clearly advise the Seller in writing of the parameters of the limited authority granted to their representative.
The Customer specifically acknowledges and accepts that they will be solely liable to the Seller for all additional costs incurred by the Seller (including the Seller’s profit margin) in providing any Goods, Services or variation/s requested by the Customer’s duly authorised representative (subject always to the limitations imposed under clause 2 (if any)).
Errors and Omissions
The Customer acknowledges and accepts that the Seller shall, without prejudice, accept no liability in respect of any alleged or actual error(s) and/or omission(s):
resulting from an inadvertent mistake made by the Seller in the formation and/or administration of this Contract; and/or
contained in/omitted from any literature (hard copy and/or electronic) supplied by the Seller in respect of the Services.
In the event such an error and/or omission occurs in accordance with clause 1, and is not attributable to the negligence and/or wilful misconduct of the Seller; the Customer shall not be entitled to treat this Contract as repudiated nor render it invalid.
Change in Control
The Customer shall give the Seller not less than fourteen (14) days prior written notice of any proposed change of ownership of the Customer and/or any other change in the Customer’s details (including but not limited to, changes in the Customer’s name, address and contact phone or fax number/s, change of trustees or business practice). The Customer shall be liable for any loss incurred by the Seller as a result of the Customer’s failure to comply with this clause.
Price and Payment
At the Seller’s sole discretion the Price shall be either:
as indicated on any invoice provided by the Seller to the Customer; or
the Seller’s estimated Price (subject to clause 2). No allowances shall be made for site preparation unless specified in the estimate. The final Price can only be ascertained upon completion of the Services. Variances in the estimated Price of more than ten (10%) percent will be subject to Customer approval before proceeding with the Services; or
the Seller’s quoted Price (subject to clause 2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.
The Seller reserves the right to change the Price:
if a variation to the Goods which are to be supplied is requested; or
if a variation to the Services originally scheduled (including any applicable plans or specifications) is requested; or
where additional Services are required due to the discovery of hidden or unidentifiable difficulties (including, but not limited to, delays of the Goods being received from the manufacturer, poor weather conditions, limitations to accessing the site, availability of machinery, safety considerations, manufacturing time required or delays to, prerequisite work by a third party not being completed, change of design, hard rock or other barriers below the surface or iron reinforcing rods in concrete, other latent soil conditions, difference in pipe sizes, or hidden underground pipes and wiring, etc.) which are only discovered on commencement of the Services; or
if during the course of the Services, the Goods cease to be available from the Seller’s third party suppliers, then the Seller reserves the right to provide alternative Goods, subject to prior confirmation and agreement of both parties;
in the event of increases to the Seller in the cost of labour or Goods (including, but not limited to, overseas transactions that may increase as a consequence of variations in foreign currency rates of exchange and/or international freight and insurance charges) which are beyond the Seller’s control.
Variations will be charged for on the basis of the Seller’s quotation, and will be detailed in writing, and shown as variations on the Seller’s invoice. The Customer shall be required to respond to any variation submitted by the Seller within ten (10) working days. Failure to do so will entitle the Seller to add the cost of the variation to the Price. Payment for all variations must be made in full at the time of their completion.
At the Seller’s sole discretion a deposit may be required. The deposit amount or percentage of the Price will be stipulated at the time of the order of the Goods and shall become immediately due and payable and the following conditions may apply:
thirty percent (30%) of the Contract Price is payable up front on signing of the Contract;
a progress payment of thirty percent (30%) of the Contract Price is payable when the Goods are delivered to the Customer’s site;
ten percent (10%) of the Contract Price is payable thirty (30) days after delivery of the Goods; and
the balance payable on completion of the project.
Time for payment for the Goods being of the essence, the Price will be payable by the Customer on the date/s determined by the Seller, which may be:
on delivery of the Goods; or
by way of instalments/progress payments in accordance with the Seller’s payment schedule;
for certain approved Customers, due twenty (20) days following the end of the month in which a statement is posted to the Customer’s address or address for notices;
the date specified on any invoice or other form as being the date for payment; or
failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Customer by the Seller.
Payment may be made by cash, electronic/on-line banking, credit card (a surcharge per transaction may apply), or by any other method as agreed to between the Customer and the Seller.
The Seller may in its discretion allocate any payment received from the Customer towards any invoice that the Seller determines and may do so at the time of receipt or at any time afterwards. On any default by the Customer the Seller may re-allocate any payments previously received and allocated. In the absence of any payment allocation by the Seller, payment will be deemed to be allocated in such manner as preserves the maximum value of the Seller’s Purchase Money Security Interest (as defined in the PPSA) in the Goods.
The Customer shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Customer by the Seller nor to withhold payment of any invoice because part of that invoice is in dispute.
Unless otherwise stated the Price does not include GST. In addition to the Price, the Customer must pay to the Seller an amount equal to any GST the Seller must pay for any supply by the Seller under this or any other contract for the sale of the Goods. The Customer must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Customer pays the Price. In addition, the Customer must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.
Provision of the Services
Subject to clause 2 it is the Seller’s responsibility to ensure that the Services start as soon as it is reasonably possible.
The Services’ commencement date will be put back and the completion date extended by whatever time is reasonable in the event that the Seller claims an extension of time (by giving the Customer written notice) where completion is delayed by an event beyond the Seller’s control, including but not limited to any failure by the Customer to:
make a selection; or
have the site ready for the Services; or
notify the Seller that the site is ready.
Delivery (“Delivery”) of the Goods is taken to occur at the time that:
the Customer or the Customer’s nominated carrier takes possession of the Goods at the Seller’s address; or
the Seller (or the Seller’s nominated carrier) delivers the Goods to the Customer’s nominated address even if the Customer is not present at the address.
The costs of carriage and any insurance which the Customer reasonably directs the Seller to incur, shall be reimbursed by the Customer (without any set-off or other withholding whatever) and shall be due on the date for payment of the Price.
Where there is no agreement that the Seller shall send the Goods to the Customer, Delivery to a carrier at limited carrier’s risk at the expense of the Customer is deemed to be Delivery to the Customer.
Delivery of the Goods to a third party nominated by the Customer is deemed to be Delivery to the Customer for the purposes of this Contract.
The Customer shall take Delivery of the Goods tendered notwithstanding that the quantity so delivered shall be either greater or less than the quantity purchased provided that;
such discrepancy in quantity shall not exceed 5%, and
the Price shall be adjusted pro rata to the discrepancy.
At the Seller’s sole discretion the cost of Delivery is either included in the Price or is in addition to the Price.
The Seller may deliver the Goods in separate instalments in accordance with the agreed Delivery schedule. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.
Any time specified by the Seller for Delivery of the Goods is an estimate only. The Customer must take Delivery by receipt or collection of the Goods whenever they are tendered for Delivery. The Seller will not be liable for any loss or damage incurred by the Customer as a result of Delivery being late. In the event that the Customer is unable to take Delivery of the Goods as arranged then the Seller shall be entitled to charge a reasonable fee for redelivery and/or storage.
Risk of damage to or loss of the Goods passes to the Customer on Delivery and the Customer must insure the Goods on or before Delivery.
If any of the Goods are damaged or destroyed following Delivery but prior to ownership passing to the Customer, the Seller is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by the Seller is sufficient evidence of the Seller’s rights to receive the insurance proceeds without the need for any person dealing with the Seller to make further enquiries.
If the Customer requests the Seller to leave Goods outside the Seller’s premises for collection or to deliver the Goods to an unattended location then such Goods shall be left at the Customer’s sole risk.
The Seller accepts no responsibility for any damage or performance related problems with any Goods where they have not been used and/or maintained in accordance with the Seller’s and/or the manufacturers’ recommendations.
The Seller shall be entitled to rely on the accuracy of any plans, specifications and other information provided by the Customer.The Customer acknowledges and agrees that in the event that any of this information provided by the Customer is inaccurate, the Seller accepts no responsibility for any loss, damages, or costs however resulting from these inaccurate plans, specifications or other information.
In the event that the electrical wiring is required to be re-positioned at the request of any third party contracted by the Customer then the Customer agrees to notify the Seller immediately upon any proposed changes. The Customer agrees to indemnify the Seller against any additional costs incurred with such a relocation of electrical wiring. All such variances shall be invoiced in accordance with clause 2.
The Customer warrants that any structures to which the Goods are to be affixed are able to withstand the installation of the Goods and that any electrical connections (including, but not limited to, meter boxes, main switches, circuit breakers, and electrical cable) are of suitable capacity to handle the Goods once installed.If,for any reason (including, but not limited to, the structure not being watertight, the discovery of asbestos, defective or unsafe wiring, or dangerous access etc.) the Seller reasonably forms the opinion that the Customer’s property is not safe for the installation of Goods to proceed then the Seller shall be entitled to delay installation of the Goods (in accordance with clause 2) until the Seller is satisfied that it is safe for the installation to proceed.The Seller may in agreement with the Customer bring the property up to a standard suitable for installation to proceed but all such Services undertaken and any additional Goods supplied shall be treated as a variation and be charged for in addition to the Price.
The Seller is only responsible for Goods that are replaced/supplied by the Seller, and in the event that other parts/goods subsequently fail (including, but not limited to, any connected components, lack of water, failure of any mechanical component protection functions either manual or automatic or unscheduled power cuts (that are beyond the control of the Seller)).
It shall be the Customer’s responsibility to ensure all recommended or required cleaning and/or periodic servicing and maintenance of the Goods are performed in a timely manner. Failure by the Customer to comply with this clause may impact any warranty claims made.
The Customer acknowledges that Goods supplied may:
fade or change colour over time;
expand, contract or distort as a result of exposure to heat, cold, weather;
mark or stain if exposed to certain substances; and
be damaged or disfigured by impact or scratching.
In the event that during the course of the Serrvices, the Seller discovers any fossils, artefacts or any other remains of geological or archaeological interest are discovered the Seller reserves the right to halt all Services, remove any of their equipment from the site and immediately notify the Customer. The Customer accepts and agrees that all additional costs that may be incurred by the Seller as a result of any such delays (including, but not limited to, in the event the Seller is unable to remove their equipment from the site, etc.) shall be borne by the Customer and shall be treated as a variation in accordance with clause 2.
Suitability of Purpose
The Customer acknowledges that, where applicable, the Customer has made or caused to be made their own investigations as to the availability of water and the suitability of crops and land, and the Customer expressly acknowledges that they have not relied on any representation of the Seller as to the presence quality or sufficiency of water, the quantity of water to be delivered by any irrigation system, the type of crops are suitable for cultivation using any irrigation system, crop yield, potential profit and the suitability of any proposed site or land for the use of any irrigation system.
The Customer acknowledges that:
all descriptive specifications, illustrations, drawings, data, dimensions, ratings and weights stated in the Seller’s or manufacturer’s fact sheets, Price lists or advertising material, are approximate only and are given by way of identification only. The Customer shall not be entitled to rely on such information, and any use of such does not constitute a sale by description, and does not form part of the Contract, unless expressly stated as such in writing by the Seller;
while the Seller may have provided information or figures to the Customer regarding the performance of the Goods, the Customer acknowledges that the Seller has given these in good faith, and are industry based estimates under optimal operating conditions.
The Customer shall ensure that the Seller has clear and free access to the site at all times to enable them to undertake the Services or deliver the Goods. The Seller shall not be liable for any loss or damage to the site (including, without limitation, damage to pathways, driveways and concreted or paved or grassed areas) unless due to the negligence of the Seller.
The Customer shall advise the Seller of the precise location of all known risks present at the site, and where applicable, induct the Seller’s workers (including any sub-contractors as required), on:
any WorkSafe management system;
site safety expectations;
risks and their control measures; and
incident reporting expectations.
Prior to the Seller commencing any Services the Customer must advise the Seller of the precise location of all underground services on the site and clearly mark the same. The underground mains & services the Customer must identify include, but are not limited to, electrical services, gas services, sewer services, pumping services, sewer connections, sewer sludge mains, water mains, irrigation pipes, telephone cables, fibre optic cables, oil pumping mains, and any other services that may be on the site.
Whilst the Seller will take all care to avoid damage to any underground services the Customer agrees to indemnify the Seller in respect of all and any liability claims, loss, damage, costs and fines as a result of damage to services not precisely located and notified as per clause 1.
Compliance with Laws
The Customer and the Seller shall comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities that may be applicable to the Services (including, but not limited to, meeting all safety regulations and standards as defined by the Hazard Analysis and Critical Control Points (HACCP), etc.).
It is the Customer’s responsibility to ensure that all applicable health and safety regulations are observed and other appropriate steps taken in relation to the storage, handling and use of the Goods and where information is supplied to the Customer on potential hazards relating to the Goods to bring such information to the attention of its employees, agents, sub-contractor, visitors and customers. Without prejudice to the foregoing it is also the Customer’s responsibility to comply with all work health and safety laws relating to the Goods and its operation.The Customer hereby indemnifies and shall keep indemnified the Seller against all action claims, demands, summons, suits proceedings judgments, orders or decrees arising out of or in connection with any act or omission of the Customer in respect of its obligations pursuant to this clause.
The Customer shall obtain (at the expense of the Customer) all licenses and approvals that may be required for the Services.
The Customer agrees that the site will comply with any WorkSafe guidelines and the Health and Safety at Work Act 2015 (the “HSW Act”) and any other relevant safety standards or legislation. Furthermore, the Seller has not and will not at any time assume any obligation as the Customer’s agent or otherwise which may be imposed upon the Customer from time to time pursuant to the HSW Act arising out of the engagement. The parties agree that for the purposes of the HSW Act, the Seller shall not be the person who controls the place of work in terms of the HSW Act.
If during the course of installation when the Services are being conducted within and around switchboards that if the same is found defective or deemed to be unsafe by the Seller, then the Seller shall notify the Customer immediately. The power, if isolated, will not be re-energised until such time as the existing condition has been rectified and made safe in accordance to the Electrical Safety Regulations. The Customer accepts and agrees that any costs associated with the rectification Services including any Goods and labour shall be to the Customer’s account.
All work will be tested to ensure that it is electrically safe and is in accordance with the wiring rules and other standards applying to the electrical installation under the Electrical Safety Regulations. All of the cabling work will comply with the Australian and New Zealand Wiring standards.
Any live works or Services undertaken near live conductors where it is safe to do so shall be dealt with in accordance with Australian and New Zealand Wiring standards being “Safe working on Low Voltage Electrical Installations, relevant Commonwealth and Statutory Acts and Work Place Regulations”. The Seller’s live works procedures are designed to eliminate risk of injury to the Seller’s employees, damage to the Customer’s installations and unexpected power disconnections. There may in some cases require disconnection and isolation of the installation to undertake such Services for which additional charges may apply and shall be invoiced in accordance with clause 2.
The Seller and the Customer agree that ownership of the Goods shall not pass until:
the Customer has paid the Seller all amounts owing to the Seller; and
the Customer has met all of its other obligations to the Seller.
Receipt by the Seller of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised.
It is further agreed that until ownership of the Goods passes to the Customer in accordance with clause 1:
the Customer is only a bailee of the Goods and must return the Goods to the Seller on request;
the Customer holds the benefit of the Customer’s insurance of the Goods on trust for the Seller and must pay to the Seller the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed;
the Customer must not sell, dispose, or otherwise part with possession of the Goods other than in the ordinary course of business and for market value. If the Customer sells, disposes or parts with possession of the Goods then the Customer must hold the proceeds of any such act on trust for the Seller and must pay or deliver the proceeds to the Seller on demand;
the Customer should not convert or process the Goods or intermix them with other goods but if the Customer does so then the Customer holds the resulting product on trust for the benefit of the Seller and must sell, dispose of or return the resulting product to the Seller as it so directs;
the Customer irrevocably authorises the Seller to enter any premises where the Seller believes the Goods are kept and recover possession of the Goods;
the Seller may recover possession of any Goods in transit whether or not Delivery has occurred;
the Customer shall not charge or grant an encumbrance over the Goods nor grant nor otherwise give away any interest in the Goods while they remain the property of the Seller; and
the Seller may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Customer.
Personal Property Securities Act 1999 (“PPSA”)
Upon assenting to these terms and conditions in writing the Customer acknowledges and agrees that:
these terms and conditions constitute a security agreement for the purposes of the PPSA; and
a security interest is taken in all Goods that have previously been supplied and that will be supplied in the future by the Seller to the Customer, and the proceeds from such Goods as listed by the Seller to the Customer in invoices rendered from time to time.
The Customer undertakes to:
sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which the Seller may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register;
indemnify, and upon demand reimburse, the Seller for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register or releasing any Goods charged thereby;
not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods or the proceeds of such Goods in favour of a third party without the prior written consent of the Seller; and
immediately advise the Seller of any material change in its business practices of selling the Goods which would result in a change in the nature of proceeds derived from such sales.
The Seller and the Customer agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms and conditions.
The Customer waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, and 131 of the PPSA.
Unless otherwise agreed to in writing by the Seller, the Customer waives its right to receive a verification statement in accordance with section 148 of the PPSA.
The Customer shall unconditionally ratify any actions taken by the Seller under clauses 1 to 15.5.
Subject to any express provisions to the contrary (including those contained in this clause 15), nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.
Security and Charge
In consideration of the Seller agreeing to supply the Goods, the Customer charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Customer either now or in the future, and the Customer grants a security interest in all of its present and after-acquired property, to secure the performance by the Customer of its obligations under these terms and conditions (including, but not limited to, the payment of any money). The terms of the charge and security interest are the terms of Memorandum 2018/4344 registered pursuant to s.209 of the Land Transfer Act 2017.
The Customer indemnifies the Seller from and against all the Seller’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising the Seller’s rights under this clause.
The Customer irrevocably appoints the Seller and each director of the Seller as the Customer’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 16 including, but not limited to, signing any document on the Customer’s behalf.
The Customer shall inspect the Goods on Delivery and shall within seven (7) days of Delivery (time being of the essence) notify the Seller of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Customer shall afford the Seller an opportunity to inspect the Goods within a reasonable time following Delivery if the Customer believes the Goods are defective in any way. If the Customer fails to comply with these provisions the Goods shall be presumed to be free from any defect or damage. For defective Goods, which the Seller has agreed in writing that the Customer is entitled to reject, the Seller’s liability is limited to either (at the Seller’s discretion) replacing the Goods or repairing the Goods.
Goods will not be accepted for return other than in accordance with 1 above, and provided that:
the Seller has agreed in writing to accept the return of the Goods; and
the Goods are returned at the Customer’s cost within seven (7) days of the Delivery date; and
the Seller will not be liable for Goods which have not been stored or used in a proper manner; and
the Goods are returned in the condition in which they were delivered and with all packaging material, brochures and instruction material in as new condition as is reasonably possible in the circumstances.
The Seller may (in its discretion) accept the return of Goods for credit but this may incur a handling fee of twenty percent (20%) of the value of the returned Goods plus any freight.
Subject to clause 1, non-stocklist items or Goods made to the Customer’s specifications are not acceptable for credit or return.
Subject to the conditions of warranty set out in clause 2 the Seller warrants that if any defect in any workmanship provided by the Seller becomes apparent and is reported to the Seller within twelve (12) months of the date of Delivery (time being of the essence) then the Seller will either (at the Seller’s sole discretion) replace or remedy the defect.
The conditions applicable to the warranty given by clause 1 are:
the warranty shall not cover any defect or damage which may be caused or partly caused by or arise through:
failure on the part of the Customer to properly maintain any Goods or serviced item; or
failure on the part of the Customer to follow any instructions or guidelines provided by the Seller; or
any use of any Goods or serviced item otherwise than for any application specified on a quote or order form; or
the continued use of any Goods or serviced item after any defect becomes apparent or would have become apparent to a reasonably prudent operator or user; or
fair wear and tear, any accident or act of God.
the warranty shall cease and the Seller shall thereafter in no circumstances be liable under the terms of the warranty if the defect is repaired, altered or overhauled without the Seller’s consent.
in respect of all claims the Seller shall not be liable to compensate the Customer for any delay in either replacing or remedying the defective Goods or Services or in properly assessing the Customer’s claim.
For Goods not manufactured by the Seller, the warranty shall be the current warranty provided by the manufacturer of the Goods. The Seller shall not be bound by nor be responsible for any term, condition, representation or warranty other than that which is given by the manufacturer of the Goods.
In the case of second hand Goods, the Customer acknowledges that full opportunity to inspect the same has been provided and accepts the same with all faults and that no warranty is given by the Seller as to the quality or suitability for any purpose and any implied warranty, statutory or otherwise, is expressly excluded. The Seller shall not be responsible for any loss or damage to the Goods, or caused by the Goods, or any part thereof however arising.
Consumer Guarantees Act 1993
If the Customer is acquiring Goods for the purposes of a trade or business, the Customer acknowledges that the provisions of the Consumer Guarantees Act 1993 (“CGA”) do not apply to the supply of Goods by the Seller to the Customer.
Where the Seller has designed, drawn or developed Goods for the Customer, then the copyright in any designs and drawings and documents shall remain the property of the Seller. Under no circumstances may such designs, drawings and documents be used without the express written approval of the Seller.
The Customer warrants that all designs, specifications or instructions given to the Seller will not cause the Seller to infringe any patent, registered design or trademark in the execution of the Customer’s order and the Customer agrees to indemnify the Seller against any action taken by a third party against the Seller in respect of any such infringement.
The Customer agrees that the Seller may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings or Goods which the Seller has created for the Customer.
Default and Consequences of Default
Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at the Seller’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
If the Customer owes the Seller any money the Customer shall indemnify the Seller from and against all costs and disbursements incurred by the Seller in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, the Seller’s collection agency costs, and bank dishonour fees).
Further to any other rights or remedies the Seller may have under this Contract, if a Customer has made payment to the Seller, and the transaction is subsequently reversed, the Customer shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by the Seller under this clause 21 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Customer’s obligations under this Contract.
Without prejudice to the Seller’s other remedies at law the Seller shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to the Seller shall, whether or not due for payment, become immediately payable if:
any money payable to the Seller becomes overdue, or in the Seller’s opinion the Customer will be unable to make a payment when it falls due;
the Customer has exceeded any applicable credit limit provided by the Seller;
the Customer becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer.
Without prejudice to any other remedies the Seller may have, if at any time the Customer is in breach of any obligation (including those relating to payment) under these terms and conditions the Seller may suspend or terminate the supply of Goods to the Customer. The Seller will not be liable to the Customer for any loss or damage the Customer suffers because the Seller has exercised its rights under this clause.
The Seller may cancel any Contract to which these terms and conditions apply or cancel Delivery of Goods at any time before the Goods are delivered by giving written notice to the Customer. On giving such notice the Seller shall repay to the Customer any money paid by the Customer for the Goods. The Seller shall not be liable for any loss or damage whatsoever arising from such cancellation.
In the event that the Customer cancels Delivery of Goods the Customer shall be liable for any and all loss incurred (whether direct or indirect) by the Seller as a direct result of the cancellation (including, but not limited to, any loss of profits).
Cancellation of orders for Goods made to the Customer’s specifications, or for non-stocklist items, will definitely not be accepted once production has commenced, or an order has been placed.
All emails, documents, images or other recorded information held or used by the Seller is “Personal Information” as defined and referred to in clause 3 and therefore considered confidential. The Seller acknowledges its obligation in relation to the handling, use, disclosure and processing of Personal Information pursuant to the Privacy Act 2020 (“the Act”) including Part II of the OECD Guidelines as set out in the Act. The Seller acknowledges that in the event it becomes aware of any data breaches and/or disclosure of the Customer’s Personal Information, held by the Seller that may result in serious harm to the Customer, the Seller will notify the Customer in accordance with the Act. Any release of such Personal Information must be in accordance with the Act and must be approved by the Customer by written consent, unless subject to an operation of law.
Notwithstanding clause 1, privacy limitations will extend to the Seller in respect of Cookies where the Customer utilises the Seller’s website to make enquiries. The Seller agrees to display reference to such Cookies and/or similar tracking technologies, such as pixels and web beacons (if applicable), such technology allows the collection of Personal Information such as the Customer’s:
IP address, browser, email client type and other similar details;
tracking website usage and traffic; and
reports are available to the Seller when the Seller sends an email to the Customer, so the Seller may collect and review that information (“collectively Personal Information”)
The Customer authorises the Seller or the Seller’s agent to:
access, collect, retain and use any information about the Customer;
including, name, address, D.O.B, occupation, driver’s license details, electronic contact (email, Facebook or Twitter details), medical insurance details or next of kin and other contact information (where applicable), previous credit applications, credit history or any overdue fines balance information held by the Ministry of Justice for the purpose of assessing the Customer’s creditworthiness; or
for the purpose of marketing products and services to the Customer.
disclose information about the Customer, whether collected by the Seller from the Customer directly or obtained by the Seller from any other source, to any other credit provider or any credit reporting agency for the purposes of providing or obtaining a credit reference, debt collection or notifying a default by the Customer.
Where the Customer is an individual the authorities under clause 3 are authorities or consents for the purposes of the Privacy Act 2020.
The Customer shall have the right to request (by e-mail) from the Seller, a copy of the Personal Information about the Customer retained by the Seller and the right to request that the Seller correct any incorrect Personal Information.
The Seller will destroy Personal Information upon the Customer’s request (by e-mail) or if it is no longer required unless it is required in order to fulfil the obligations of this Contract or is required to be maintained and/or stored in accordance with the law.
The Customer can make a privacy complaint by contacting the Seller via e-mail. The Seller will respond to that complaint within seven (7) days of receipt and will take all reasonable steps to make a decision as to the complaint within twenty (20) days of receipt of the complaint. In the event that the Customer is not satisfied with the resolution provided, the Customer can make a complaint to the Privacy Commissioner at http://www.privacy.org.nz.
Service of Notices
Any written notice given under this Contract shall be deemed to have been given and received:
by handing the notice to the other party, in person;
by leaving it at the address of the other party as stated in this Contract;
by sending it by registered post to the address of the other party as stated in this Contract;
if sent by facsimile transmission to the fax number of the other party as stated in this Contract (if any), on receipt of confirmation of the transmission;
if sent by email to the other party’s last known email address.
Any notice that is posted shall be deemed to have been served, unless the contrary is shown, at the time when by the ordinary course of post, the notice would have been delivered.
If the Customer at any time upon or subsequent to entering in to the Contract is acting in the capacity of trustee of any trust (“Trust”) then whether or not the Seller may have notice of the Trust, the Customer covenants with the Seller as follows:
the Contract extends to all rights of indemnity which the Customer now or subsequently may have against the Trust and the trust fund;
the Customer has full and complete power and authority under the Trust to enter into the Contract and the provisions of the Trust do not purport to exclude or take away the right of indemnity of the Customer against the Trust or the trust fund. The Customer will not release the right of indemnity or commit any breach of trust or be a party to any other action which might prejudice that right of indemnity;
the Customer will not without consent in writing of the Seller (the Seller will not unreasonably withhold consent), cause, permit, or suffer to happen any of the following events:
the removal, replacement or retirement of the Customer as trustee of the Trust;
any alteration to or variation of the terms of the Trust;
any advancement or distribution of capital of the Trust; or
any resettlement of the trust property.
Any dispute or difference arising as to the interpretation of these terms and conditions or as to any matter arising herein, shall be submitted to, and settled by, mediation before resorting to any external dispute resolution mechanisms (including arbitration or court proceedings) by notifying the other party in writing setting out the reason for the dispute. The parties shall share equally the mediator’s fees. Should mediation fail to resolve the dispute, the parties shall be free to pursue other dispute resolution avenues.
The failure by either party to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect that party’s right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
These terms and conditions and any Contract to which they apply shall be governed by the laws of New Zealand and are subject to the jurisdiction of the courts of Pakmerston North, New Zealand.
Subject to the CGA, the Seller shall be under no liability whatsoever to the Customer for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by the Seller of these terms and conditions (alternatively the Seller’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Goods).
The Seller may licence and/or assign all or any part of its rights and/or obligations under this Contract without the Customer’s consent.
The Customer cannot licence or assign without the written approval of the Seller.
The Seller may elect to subcontract out any part of the Services but shall not be relieved from any liability or obligation under this Contract by so doing. Furthermore, the Customer agrees and understands that they have no authority to give any instruction to any of the Seller’s sub-contractors without the authority of the Seller.
The Customer agrees that the Seller may amend their general terms and conditions for subsequent future Contracts with the Customer by disclosing such to the Customer in writing. These changes shall be deemed to take effect from the date on which the Customer accepts such changes, or otherwise at such time as the Customer makes a further request for the Seller to provide Goods to the Customer.
Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm, national or global pandemics and/or the implementation of regulation, directions, rules or measures being enforced by Governments or embargo, including but not limited to, any Government imposed border lockdowns (including, worldwide destination ports), etc, (“Force Majeure”) or other event beyond the reasonable control of either party. This clause does not apply to a failure by the Customer to make a payment to the Seller.
Both parties warrant that they have the power to enter into this Contract and have obtained all necessary authorisations to allow them to do so, they are not insolvent and that this Contract creates binding and valid legal obligations on them.