Terms & Conditions of Trade – Aquatec Fluid Systems NZ Ltd
1. Definitions
1.1 “Seller” means Aquatec Fluid Systems NZ Limited, its successors and assigns or any person acting on behalf of and with the authority of Aquatec Fluid Systems NZ Limited.
1.2 “Client” means the person/s buying the Goods as specified in any invoice, document or order, and if there is more than one Client is a reference to each Client jointly and severally.
1.3 “Goods” means all Goods or Services supplied by the Seller to the Client at the Client’s request from time to time (where the context so permits the terms ‘Goods’ or ‘Services’ shall be interchangeable for the other).
1.4 “Price” means the Price payable for the Goods as agreed between the Seller and the Client in accordance with clause 4 below.
2. Acceptance
2.1 The Client is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Client places an order for or accepts delivery of the Goods.
2.2 The Client acknowledges that the matters set out in the Proposal are a true description of the purposes for which the Goods purchased are to be applied and that the Client may forfeit any rights it may have against the Seller for the supply of the subject goods if they are applied to any other use. The Client forfeits any right or claim against the Seller if any alteration to the Goods sold or quoted is carried out without the Seller’s written consent.
2.3 These terms and conditions may only be amended with the Seller’s consent in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the Client and the Seller.
3. Change in Control
3.1 The Client shall give the Seller not less than fourteen (14) days prior written notice of any proposed Change of Control of the Client and/or any other change in the Client’s details (including but not limited to, changes in the Client’s name, address, contact phone or number/s, or business practice). The Client shall be liable for any Loss incurred by the Seller as a result of the Client’s failure to comply with this clause.
4. Price and Payment
4.1 At the Seller’s sole discretion the Price shall be either:
(a) as indicated on the Seller’s published current price list; or
(b) as indicated on invoices provided by the Seller to the Client in respect of Goods supplied; or
(c) the Seller’s quoted Price (subject to clause 4.2) which shall be binding upon the Seller provided that the Client shall accept the Seller’s quotation in writing within thirty (30) days. Quotations are subject to withdrawal, correction, or alteration at any time before acceptance of the Client’s order by the Seller unless stated otherwise.
4.2 The Seller reserves the right to change the Price in the event of a variation to the Seller’s quotation (including, but not limited to, variations as a result of changes in details, sizes, quantities, delivery instructions or any other matter or item on which the quotation was based).
4.3 At the Seller’s sole discretion a deposit of up to one third (1/3) of the Price may be required.
4.4 At the Seller’s sole discretion:
(a) payment shall be due on delivery of the Goods; or
(b) payment for approved Clients shall be made by instalments in accordance with the Seller’s payment schedule.
4.5 The Seller may withhold delivery of the Goods until the Client has paid for them, in which event payment shall be made before the delivery date.
4.6 Time for payment for the Goods shall be of the essence and will be stated on the invoice or any other forms. If no time is stated then payment shall be due seven (7) days following the date of the invoice, or for approved Clients thirty (30) days following the date of the invoice. Payment shall be due in accordance with this clause whether or not Goods have already been delivered.
4.7 The Seller reserves the right to offer certain approved Clients a discount for settlement of accounts by a specified date.
4.8 The Seller reserves the right to withdraw credit terms and at any time without notice apply or vary a credit limit.
4.9 When the Seller extends credit terms it is expressly understood that the Client agrees that any purchases from the Client by the Seller are on the basis that contra purchases are able to be off set against any amounts owed by the Client to the Seller.
4.10 Payment will be made by cash, or by cheque, or by bank cheque, or by credit card (plus a surcharge of up to one and a half percent (1.5%) of the Price), or by direct credit, or by any other method as agreed to between the Client and the Seller.
4.11 Goods and services tax and any other government taxes, levies and duties that may be applicable shall be added to the Price except when they are expressly included in the Price.
5. Delivery of Goods
5.1 Delivery (“Delivery”) of the Goods is taken to occur at the time that:
(a) the Client (or the Client’s nominated carrier) takes possession of the Goods at the Seller’s address; or
(b) the Seller (or the Seller’s nominated carrier) delivers the Goods to the Client’s nominated address even if the Client is not present at the address.
5.2 At the Seller’s sole discretion the cost of delivery is either included in the Price or is in addition to the Price.
5.3 The Client must take delivery by receipt or collection of the Goods whenever they are tendered for delivery. In the event that the Client 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.
5.4 The Seller may deliver the Goods in separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.
5.5 Any time or date given by the Seller to the Client is an estimate only. The Client must still accept delivery of the Goods even if late and the Seller will not be liable for any loss or damage incurred by the Client as a result of the delivery being late.
6. Access
6.1 The Client shall ensure that the Seller has clear and free access to the work site at all times to enable them to 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.
7. Underground Locations
7.1 Prior to the Seller commencing any work the Client must advise the Seller of the precise location of all underground services on the site and clearly mark the same. The underground mains and services the Client 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 site.
7.2 Whilst the Seller will take all reasonable care to avoid damage to any underground services the Client 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 7.1.
8. Risk
8.1 Risk of damage to or loss of the Goods passes to the Client on Delivery and the Client must insure the Goods on or before Delivery.
8.2 If any of the Goods are damaged or destroyed following Delivery but prior to ownership passing to the Client, 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.
8.3 If the Client 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 Client’s sole risk.
8.4 The Client further accepts sole responsibility for any damage or injury to property or persons caused by using the Goods to pump or transfer hazardous or toxic fluids or substances.
9. Title
9.1 The Seller and the Client agree that ownership of the Goods shall not pass until:
(a) the Client has paid the Seller all amounts owing to the Seller; and
(b) the Client has met all of its other obligations to the Seller.
9.2 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.
9.3 It is further agreed that:
(a) until ownership of the Goods passes to the Client in accordance with clause 9.1, the Client is only a bailee of the Goods and must return the Goods to the Seller on request;
(b) the Client holds the benefit of the Client’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;
(c) the Client 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 Client sells, disposes or parts with possession of the Goods then the Client 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;
(d) the Client should not convert or process the Goods or intermix them with other goods but if the Client does so then the Client 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;
(e) the Client irrevocably authorises the Seller to enter any premises where the Seller believes the Goods are kept and recover possession of the Goods;
(f) the Seller may recover possession of any Goods in transit whether or not Delivery has occurred;
(g) the Client 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
(h) the Seller may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Client.
10. Personal Property Securities Act 2009 (“PPSA”)
10.1 In this clause, each of the terms “financing statement”, “financing change statement”, “security agreement”, and “security interest” has the meaning given to it by the PPSA.
10.2 Upon assenting to these terms and conditions in writing the Client acknowledges and agrees that these terms and conditions constitute a security agreement for the purposes of the PPSA and creates a security interest in all Goods that have previously been supplied and that will be supplied in the future by the Seller to the Client. The Seller’s security interest covers the Goods together with proceeds of all kinds to the value of all Goods the Seller has supplied to the Client whether or not those Goods have become accessions to other goods or commingled with other goods.
10.3 The Client undertakes to:
(a) promptly 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:
(i) register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;
(ii) register any other document required to be registered by the PPSA; or
(iii) correct a defect in a statement referred to in clause 10.3(a)(i) or 10.3(a)(ii);
(b) 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 established by the PPSA or releasing any Goods charged thereby;
(c) not register a financing change statement in respect of a security interest without the prior written consent of the Seller;
(d) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods in favour of a third party without the prior written consent of the Seller;
(e) 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; and
(f) immediately advise the Seller of any changes to information the Client has provided to the Seller and at least fourteen (14) days before any change to the Client’s company name or trading name.
10.4 The Client waives its rights to receive notices under sections 114(1)(a), 116, 120(2), 121, 125, 126, 127, 129 and 131 of the PPSA and the Client waives their rights as a grantor and/or a debtor under sections 132 and 133 of the PPSA.
10.5 Unless otherwise agreed to in writing by the Seller, the Client waives their right to receive a copy of the verification statement in accordance with section 148 of the PPSA.
10.6 The Client must unconditionally ratify any actions taken by the Seller under clauses 10.3 to 10.5.
10.7 Subject to any express provisions to the contrary nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions the PPSA.
11. Security and Charge
11.1 In consideration of the Seller agreeing to supply the Goods, the Client 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 Client either now or in the future, to secure the performance by the Client of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
11.2 The Client 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.
11.3 The Client irrevocably appoints the Seller and each director of the Seller as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 11 including, but not limited to, signing any document on the Client’s behalf.
12. Defects, Warranties and Returns, Consumer Guarantees Act 1993 (“CGA”)
12.1 The Client must inspect the Goods on delivery and must within seven (7) days of delivery notify the Seller in writing of any evident defect/damage, shortage in quantity, or failure to comply with the description or quote. The Client must notify any other alleged defect in the Goods as soon as reasonably possible after any such defect becomes evident. Upon such notification the Client must allow the Seller to inspect the Goods.
12.2 Under applicable New Zealand Law (including, without limitation the CGA), certain statutory implied guarantees and warranties (including, without limitation the statutory guarantees under the CGA) may be implied into these terms and conditions (“Non-Excluded Guarantees”).
12.3 The Seller acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.
12.4 Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, the Seller makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Goods. The Seller’s liability in respect of these warranties is limited to the fullest extent permitted by law.
12.5 If the Seller is required to remedy a failure of the Goods to comply with a guarantee under the CGA, the Seller may either repair the Goods, or replace the Goods with goods of identical type, or where the Seller cannot reasonably be expected to repair the Goods, provide a refund of any money paid or other consideration provided by the Client in respect of the Goods.
12.6 Where the Goods that the Client acquires from the Seller are not of a kind ordinarily acquired for personal household or domestic use or consumption, or where the Client acquires, or holds itself out as acquiring, the Goods for the purposes of a business, the provisions of the CGA and the conditions, warranties and guarantees set out in the Contract and Commercial Law Act 2017, or implied by common law will not apply and are excluded from these terms and conditions.
12.7 If the Client acquires any Goods from the Seller for re-supply as, use or incorporation in, any goods or services ordinarily acquired for personal household or domestic use or consumption (“Consumer Products”) the Client warrants that:
(a) if the Client supplies the Consumer Products directly to an end user/consumer it will do so using terms and conditions which exclude liability for any claims under the CGA; and
(b) if the Client’s customer acquires any goods or services for re-supply, the Client’s customer and each person in the distribution chain will exclude liability in its contract for supply for any claims under the CGA;
but in each case only where the end user/consumer acquires the Consumer Products for business purposes.
12.8 Where Goods are subject to manufacturer’s warranties, the Seller will pass on the benefit of those warranties to the Client, without being directly liable to the Client under any warranty. The Client is responsible for the cost of returning Goods to the manufacturer or to the Seller under any warranty and the Client may be responsible for additional costs including (but not limited to) freight. Where the Client requires the Seller to do anything related to a warranty claim, the Client must pay the Seller’s service and call-out charges. The Seller may refuse to assist with warranties if any sum that the Client owes to the Seller for any reason is overdue.
12.9 Subject to this clause 12, returns will only be accepted by the Seller provided that:
(a) the Client has complied with the provisions of clause 12.1; and
(b) the Seller has agreed that the Goods are defective; and
(c) the Goods are returned within a reasonable time at the Client’s cost (if that cost is not significant); and
(d) the Goods are returned in as close a condition to that in which they were delivered as is possible.
12.10 Notwithstanding clauses 12.1 to 12.9 but subject to the CGA, the Seller shall not be liable for any defect or damage which may be caused or partly caused by or arise as a result of:
(a) the Client failing to properly clean, maintain or store any Goods;
(b) unreasonable use or damage of the Goods by the Client or the Client using the Goods for any purpose other than that for which they were designed;
(c) the Client continuing the use of any Goods after any defect became apparent or should have become apparent to a reasonably prudent operator or user;
(d) the Client failing to follow any instructions or guidelines provided by the Seller or manufacturer;
(e) fair wear and tear, any accident, or act of God; or
(f) the Client undertaking or arranging for unauthorised repairs or modifications to the Goods, or the use by the Client of parts, hardware, software or consumables which are not recommended by the Seller or manufacturer.
12.11 The Seller may in its absolute discretion accept non-defective Goods for return in which case the Seller may require the Client to pay handling fees of up to twenty percent (20%) of the value of the returned Goods plus any freight costs.
12.12 Notwithstanding anything contained in these terms and conditions, if the Seller is required by a law to accept a return then the Seller will only accept a return on the conditions imposed by that law.
13. Intellectual Property
13.1 The Client does not acquire any right, title or interest in any copyright, trade marks, or other intellectual property rights relating to any of the Goods supplied by the Seller. Where the Seller has designed, drawn or developed Goods for the Client, then the copyright in any designs and drawings and documents shall remain the property of the Seller.
13.2 The Client 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 Client’s order and the Client agrees to indemnify the Seller against any action taken by a third party against the Seller in respect of any such infringement.
13.3 The Client 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 Client.
13.4 The Client must not use any intellectual property, including trade marks, which belong to the Seller or its suppliers or manufacturers, or cause, assist or permit anything to occur which may interfere with, damage or endanger those intellectual property rights.
14. Default and Consequences of Default
14.1 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.
14.2 If the Client owes the Seller any money the Client 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 fees).
14.3 Without prejudice to any other remedies the Seller may have, if at any time the Client 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 Client. The Seller will not be liable to the Client for any loss or damage the Client suffers because the Seller has exercised its rights under this clause.
14.4 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 Client which remains unfulfilled and all amounts owing to the Seller shall, whether or not due for payment, become immediately payable if:
(a) any money payable to the Seller becomes overdue, or in the Seller’s opinion the Client will be unable to make a payment when it falls due;
(b) the Client 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
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.
15. Cancellation
15.1 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 Client. On giving such notice the Seller shall repay to the Client any money paid by the Client for the Goods. The Seller shall not be liable for any loss or damage whatsoever arising from such cancellation.
15.2 In the event that the Client cancels delivery of Goods the Client 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).
15.3 Cancellation of orders for Goods made to the Client’s specifications, or for non-stocklist items, will definitely not be accepted once production has commenced, or an order has been placed.
16. New Zealand Privacy Act
16.1 The Seller will collect personal information about the Client (including the information collected in the credit application form) for the following purposes (and for other purposes as shall be agreed between the Client and Seller or required by law from time to time):
(a) to assess an application by the Client and/or the creditworthiness of the Client;
(b) disclosing to a third party details of an application by the Client and any subsequent dealings by the Client with the Seller for the purpose of recovering amounts payable by the Client and providing credit references; and/or
(c) the provision or marketing of goods and services provided by the Seller, its agents or distributors; and/or
(d) enabling the daily operation of Client’s account and/or the collection of amounts outstanding in the Client’s account in relation to the Goods; and/or
(e) enabling the Seller to exercise any power, enforcement or attempted enforcement of the Seller’s rights, remedies and powers under these terms and conditions.
16.2 The Client (and each person who signs the Client’s application for credit for and on behalf of the Client) authorises the Seller to collect, retain and use information about the Client from any person or company for any of the purposes referred to in clause 16.1. The failure by the Client to provide complete and accurate information may result in the application by the Client being declined and/or the Seller declining to provide Goods to the Client.
16.3 The Client further authorises any person or company to provide the Seller with any information the Seller may require in response to the Client’s application for credit and/or other enquiries and the Client authorises the Seller to search the Personal Property Securities Register for any information about the Client (or in the case of a company) the Client’s parent or associated companies.
16.4 The Client, if an individual, has a right of access to personal information about the Client held by the Seller pursuant to the provisions of the New Zealand Privacy Act. The Client may request correction of any such personal information and may require that the request be stored with that information. The Seller may charge reasonable costs for providing access to and/or correction of that information.
16.5 The Client authorises the Seller to disclose information about the Client to any third party in connection with any of the purposes referred to in clause 16.1.
17. Unpaid Seller’s Rights
17.1 Where the Client has left any item with the Seller for repair, modification, exchange or for the Seller to perform any other service in relation to the item and the Seller has not received or been tendered the whole of any moneys owing to it by the Client, the Seller shall have, until all moneys owing to the Seller are paid:
(a) a lien on the item; and
(b) the right to retain or sell the item, such sale to be undertaken in accordance with any legislation applicable to the sale or disposal of uncollected goods.
17.2 The lien of the Seller shall continue despite the commencement of proceedings, or judgment for any moneys owing to the Seller having been obtained against the Client.
18. General
18.1 The failure by the Seller to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect the Seller’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.
18.2 These terms and conditions and any contract to which they apply shall be governed by and construed in accordance with the laws of New Zealand, and any dispute is subject to the non-exclusive jurisdiction of the courts of New Zealand.
18.3 Subject to clause 12, the Seller shall be under no liability whatsoever to the Client for any indirect and/or consequential loss, damage, cost and/or expense of any kind (including loss of profit or any other form of economic loss) suffered by the Client arising in connection with these terms and conditions (whether in contract or in tort) including that resulting from the negligence of the Seller or arising by operation of law. Insofar as the Seller may be liable to the Client notwithstanding this clause, to the extent permitted by law the Seller’s total liability to the Client for any loss, damage or injury arising directly or indirectly out of the supply of the Goods or any other breach shall be limited to damages which under no circumstances shall exceed the Price of the Goods).
18.4 The Client shall not be entitled to set off or counterclaim against, or deduct from the Price, any sums owed or claimed to be owed to the Client by the Seller nor to withhold payment of any invoice because part of that invoice is in dispute. The Client is expressly prohibited from deducting monies from or withholding any payment owing to Seller if it is served with a statutory demand pursuant to the Companies Act 1993.
18.5 The Seller may licence, assign or sub-contract all or any part of its rights and obligations under these terms and conditions without the Client’s consent.
18.6 The Client agrees that the Seller may amend these terms and conditions at any time. If the Seller makes a change to these terms and conditions, then that change will take effect from the date on which the Seller notifies the Client of such change. The Client will be taken to have accepted such changes if the Client makes a further request for the Seller to provide Goods to the Client.
18.7 Neither party shall be liable for any loss, damage, defect or default under these terms and conditions arising directly or indirectly from any act of God, war, armed conflict, terrorism, strike, lock-out, industrial action, civil commotion, government intervention, interruption to transportation, pandemic, earthquake, fire, flood, drought, storm or other event beyond the reasonable control of either party.
18.8 The Client warrants that it has the power to accept these terms and conditions and has obtained all necessary authorisations to allow it to do so, it is not insolvent and that the acceptance of these terms and conditions by the Client creates binding and valid legal obligations on it.