Terms and Conditions Acceptance
(Terms and conditions are below this form)
TERMS AND CONDITIONS OF TRADE – GOODS AND SERVICES
© Enhance Technology 2019
In these terms of trade: “Account” means the Customer’s account with the Vendor. “Customer” means the person or entity making the application or any person acting with ostensible authority on behalf of the Customer. “Goods” means goods supplied by the Vendor to the Customer at any time. “Guarantor” means any party executing a Guarantee of the Customer's Account with the Vendor. “Order” or “Orders” means the order or orders of the Customer to the Vendor to supply Goods and Services. "PPSA" means the Personal Property Securities Act 1999. “Services” means services supplied by the Vendor to the Customer at any time. “Vendor” means Enhance Technology Limited.
(a) Orders will be on such forms as the Vendor may require from time to time. (b) Any Orders for Goods and/or Services will be supplied only on these Terms and Conditions of Trade and any additional terms specified in any quotation provided by the Vendor and accepted by the Customer. No other terms and conditions (including any contained in your Order or other documentation provided by you) will apply unless the Vendor expressly agrees in writing to those terms and conditions. (c) The Vendor may at any time refuse an Order by the Customer or decline to approve any application by the Customer for any reason whatsoever.
(a) Each Order shall constitute acceptance by the Customer of these Terms and Conditions of Trade.
(a) Prices are subject to change without notice. (b) All Orders will be charged at: (i) the price agreed between the Vendor and Customer (by your acceptance of our quotation or otherwise) when the Order was made; or (ii) if no price was agreed when the Order was made, prices prevailing at the date of delivery of the Goods and Services. (c) Despite Clause 4(b)(i), the Vendor may increase any agreed price for Goods and Services by the amount of any increase in the Vendor’s cost which is beyond the Vendor’s control, between the date the price was agreed and the date of delivery of the Goods and Services. (d) Unless expressly included in any quotation given by the Vendor, Goods and Services Tax and other taxes and duties assessed or levies in connection with the supply of the Goods and Services to the Customer are not included in the price and shall be the responsibility of the Customer or, where the payment of such taxes or duties is the responsibility of the Vendor at law, and the price shall be increased by the amount of such taxes or duties.
(a) Where the Order makes provision for delivery then delivery shall take place at the place stated in the Order. (b) If no place is indicated, then delivery shall be made at the physical address of the Customer set out in the application. (c) Delivery of Goods by the Vendor to a carrier is deemed to be delivery to the Customer. (d) If the Customer fails or refuses to accept delivery, then the Goods and Services are treated as having been delivered on the date the Vendor was willing to deliver them. (e) If the Customer is not in a position to accept or take delivery of the Goods or accept provision of the Services as scheduled, the Customer shall be responsible for all additional charges caused thereby.
6. Access for Installation and Provision of Services
(a) The Customer shall provide for the purposes of installation and provision of Services at no cost to the Vendor, all necessary facilities including power, lighting, unloading, hoisting and lifting facilities, labour, site preparation and employee amenities which comply with the statutory requirements. (b) Upon the Vendor delivering Goods or providing Services to the Customer, the Customer shall ensure adequate safe storage facilities are provided for protection against theft and damage of the Goods or any equipment or other items belonging to the Vendor at no cost to the Vendor. (c) The Customer acknowledges that it solely shall be responsible for arranging and providing convenient access for the Goods and provision of Services to the proposed place of installation including but not limited to access thereto by way of stairs, lift or crane as the case may require. (d) If the Customer fails to supply convenient access as aforesaid for any reason, then the Vendor may make a further charge to the Customer to cover the additional costs it incurs arising from such failure as the Vendor considers reasonable. (e) Where installation or supply of the Goods or provision of the Services is required of the Vendor by the Customer and installation or supply is required to be coordinated with other trades the Customer shall provide the Vendor with a schedule detailing all relevant information relating to installation or supply with sufficient time allowed for the Vendor to meet delivery or supply dates. (f) The delivery or supply period shall be extended to cover delays caused by strikes, lockouts, prohibitions, non-availability of materials or any circumstances beyond the Vendor's control.
7. Health and Safety in Employment Act 1992
(a) The Vendor shall be responsible for the actions of its employees in terms of section 15 of the Health and Safety in Employment Act 1992 ("HSEA"). (b) The Customer shall be responsible for compliance with the HSEA in respect of the Customer's site and shall advise the Vendor prior to commencement of any work of any hazards on the Customer's site.
8. Time of Performances
(a) Time shall in no case be of the essence in respect of the delivery of Goods or the provision of Services. (b) The Vendor shall not be responsible for any delay in the delivery of Goods or the provision of Services and the Customer shall not be entitled to cancel orders because of any such delay. (c) Dates for delivery of Goods and provision of Services are given in good faith and are not to be treated as a condition of sale or purchase.
9. Terms of Payment
(a) Unless otherwise specified, payment for all Goods and Services shall be made within 10 working days from the date of invoice. (b) The existence of an account by the Customer with the Vendor does not automatically entitle the Customer to credit in the future. (c) An administration fee may be charged on all overdue amounts in addition to any other charges pursuant to this clause. (d) Interest will accrue on all amounts overdue at the rate of 2.5% per month and will be calculated on a day by day basis until payment is made in full. (e) All costs of or incurred by the Vendor as a result of a default by the Customer including but not limited to administration charges, debt collections costs and legal costs as between solicitor and client shall be payable by the Customer. (f) If the Customer defaults in any payment or commits any act of bankruptcy or any act which would render it liable to be wound up or if a resolution is passed or proceedings are filed for the winding up of the Customer or if a receiver is appointed for all or any assets of the Customer, the Vendor may cancel any Order without prejudice to any other rights it may have and payment for all completed Orders shall immediately become due.
(a) Where a quotation is given by the Vendor for the supply of Goods and Services: (i) unless otherwise agreed the quotation shall be valid for thirty (30) days from the date of issue; (ii) the quotation shall be exclusive of Goods and Services Tax unless specifically stated to the contrary; (iii) the Vendor reserves the right to alter the quotation because of circumstances beyond its control.
11. Payment Allocation
(a) The Vendor may in its discretion allocate any payment received from the Customer towards any invoice that the Vendor determines and may do so at the time of receipt or at any time afterwards. (b) On any default by the Customer the Vendor may re-allocate any payments previously received and allocated. (c) In the absence of any payment allocation by the Vendor, payment shall be deemed to be allocated in such manner as preserves the maximum value of the Vendor's purchase money security interest in the products.
12. Errors or Omissions
(a) Clerical errors or omissions, whether in computation or otherwise in the quotation, acknowledgement or invoice shall be subject to correction.
(a) From the time of dispatch to the Customer by the Vendor, risk in all Goods supplied shall pass to the Customer and any loss, damage or deterioration to the Goods shall be borne by the Customer. (b) The Customer shall notwithstanding any loss, damage or deterioration to the Goods remain liable to pay for theGoods.
14. Ownership of Goods/General Lien
(a) The Vendor shall retain ownership of all Goods supplied until it receives payment in full of all amounts owing by the Customer for all Orders. (b) Subject to clause 25, until payment is made by the Customer, the Customer agrees: (i) to enable the Goods to be readily identifiable as the property of the Vendor; (ii) to keep the goods in good order and condition and properly stored, protected and insured; and (iii) to hold the Goods as trustee for the Vendor and will deal with the Goods as agent for or on behalf of the Vendor (and will not hold the Vendor out as an agent to any third parties); and (iv) that any money received by the Customer from an insurance claim made in respect of loss of or damage to the Goods will be held on trust for the Vendor. (c) If any of the Goods are attached, fixed or incorporated into any other goods, including any property of the Customer, ownership in the whole of the other goods shall be and remain with the Vendor until payment is made, as security for the full satisfaction by the Customer of the full amount owing by the Customer to the Vendor. The Vendor’s Security Interest in the Goods shall continue in the terms of section 82 of the PPSA. (d) The Vendor shall have a right to stop and retrieve the Goods in transit whether or not ownership has passed.
15. Authority to Sell Goods and Services Supplied
(a) Notwithstanding that title in all Goods and Services is retained by the Vendor, the Customer is authorised to sell the Goods and Services in the ordinary course of business provided that the authority: (i) may be removed by written notice if the Vendor considers the credit of the Customer to be unsatisfactory or if the Customer is in default in the performance of its obligations to the Vendor; and (ii) shall be deemed automatically revoked if the Customer commits any act of bankruptcy or any act which would render it liable to be wound up or if a resolution is passed or proceedings are filed for the winding up of the Customer or a receiver is appointed for all or any assets of the Customer. (b) Where Goods and Services in respect of which property has not passed to the Customer are sold by the Customer in the ordinary course of business: (i) the book debt created on the sale and the proceeds of sale when received shall be held by the Customer for the Vendor in terms of section 45 of the PPSA; and/or (ii) the Customer will hold the proceeds of sale on trust for the Vendor. (c) Where any payments are made from the Customer’s bank account otherwise than to the Vendor payment shall be deemed to have been made from all other funds in the Customer’s bank account and not from funds held on trust for the Vendor. (d) The trust obligation imposed by this clause and the Vendor’s entitlements under the PPSA shall continue for so long as the Vendor is unpaid for all Goods and Services supplied to the Customer.
16. Export Prohibition
(a) The Goods provided pursuant to these Terms and Conditions of Trade are sold for use in New Zealand only and are not to be exported elsewhere, directly or indirectly, without prior agreement of the Vendor. (b) In the event that the Vendor consents to the export of the Goods the Customer is responsible for all costs and compliance with any export regulations in force within the country for which the Goods are destined.
17. Recovery of Goods
(a) In the event of non-payment or if payment of the Customer’s Account is overdue the Vendor or its agents shall be entitled without prejudice to any right it has at law or in equity to enter the place where the Goods are stored, whether the Customer’s premises or property or the premises or property of a third party, for the purpose of recovering and taking possession of the Goods supplied. (b) The Customer warrants to the Vendor that where the Goods are stored on the premises or property of a third party, the Customer is acting as agent for the third party and has the full authority of the third party to authorise, and does hereby irrevocably authorise, entry on to the premises or property of the third party for the purpose of recovering the Goods supplied, without releasing the Customer from liability. (c) The Vendor will not be responsible for any damage reasonably caused in the course of removal of Goods supplied either in the possession of the Customer or a third party and the Customer indemnifies the Vendor to the full extent in respect of damage caused in the course of removal from the property of a third party. (d) The Vendor may resell the Goods and apply the proceeds towards payment of the Customer’s outstanding Account with the Vendor. Any shortfall will remain the liability of the Customer. The Customer indemnifies the Vendor for all costs and expenses, including but not limited to debt collection agency costs, instruction of barristers, enforcement costs and legal costs as between solicitor and client which the Vendor may incur in recovering the Goods and any monies owed toit.
18. Suitability of Goods and Services
(a) The Customer will satisfy itself that the Goods and Services as ordered are fit and suitable for the purpose for which they are required. (b) The Customer accepts all risk and responsibility for consequences arising from the use of the Goods and Services whether singularly or in combination with other Goods and Services.
(a) Unless otherwise specified, the Vendor gives no warranty, condition or representation express or implied as to the quality, description or fitness for any particular purpose of the Goods and Services. (b) Where applicable, manufacturer’s warranties will attach to the Goods. (c) Where applicable, the Vendor guarantees workmanship for a period of one (1) year following supply. (d) Where the Consumer Guarantees Act 1993 applies the Customer shall have all the rights and remedies provided under this Act but no others. The Customer warrants to the Vendor that any Goods and Services supplied by the Vendor under any order with the Vendor are being acquired by the Customer for the purpose of its business and the Consumer Guarantees Act 1993 does not apply to the supply of those Goods and Services. (e) Where Goods supplied are defective in terms of any condition warranty or guarantee or otherwise do not conform to the Order, the Vendor will at its discretion replace or repair any faulty Goods or pay the cost of replacing them, but only if a claim is made by the Customer within seven days of delivery of the Goods time being of the essence.
(a) The Customer shall be solely responsible for obtaining any necessary permits under and for compliance with all legislation, regulations, by-laws or rules having the force of law in connection with the installation operation and provision of the Goods and Services.
(a) The Customer shall not be entitled to cancel an Order other than as allowed pursuant to these Terms and Conditions of Trade.
(a) The Customer shall not be entitled to return Goods or cancel an Order other than as allowed pursuant to these Terms and Conditions of Trade.
23. Personal Property Securities Act 1999
(a) The Customer hereby acknowledges that these Terms and Conditions of Trade constitute a security agreement which creates a security interest in favour of the Vendor in all Goods and Services previously supplied by the Vendor to the Customer (if any) and all after acquired Goods and Services supplied by the Vendor to the Customer (or for the Customer's account) to secure the payment from time to time and at a time, including future advances. The Customer agrees to grant a "purchase money security interest" to the Vendor, as that term is defined in the PPSA. (b) The Customer acknowledges and agrees that by assenting to these terms the Customer grants a security interest (by virtue of the retention of title clause in these Terms and Conditions of Trade) to the Vendor and all Goods and Services previously supplied by the Vendor to the Customer (if any) and all after-acquired Goods and Services supplied by the Vendor to the Customer (or for the Customer's account) and these terms shall apply notwithstanding anything express or implied to the contrary contained in the Customer's purchase order. (c) The Customer undertakes to: (i) sign any further documents and/or provide any further information (which information the Customer warrants to be complete, accurate and up-to-date in all respects) which the Vendor may reasonably require to enable registration of a financing statement or financing change statement on the Personal Property Securities Register (“PPSR”). (ii) not register a financing change statement as defined in section 135 of the PPSA or make a demand to alter the financing statement pursuant to section 162 of the PPSA in respect of the Goods without the prior written consent of the Vendor; (iii) give the Vendor not less than 14 days' prior written notice of any proposed change in the Customer's name and/or any other changes in the Customer's details (including but not limited to changes in the Customer's address, facsimile number, email address; trading name or business practice); (iv) pay all costs incurred by the Vendor in registering and maintaining a financing statement (including registering a financing change statement) on the PPSR and/or enforcing or attempting to enforce the security interest created by these Terms and Conditions of Trade including executing subordination agreements; (v) be responsible for the full costs incurred by the Vendor (including actual legal fees and disbursements on a solicitor/client basis) in obtaining an order pursuant to section 167 of the PPSA; and (vi) the Customer waives any rights it may have under sections 116, 119, 120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA upon enforcement. (d) Pursuant to section 148 of the PPSA, unless otherwise agreed to in writing by the Vendor, the Customer waives the right to receive the verification statement in respect of any financing statement or financing change statement relating to the security interest. (e) To the maximum extent permitted by law, the Customer waives its rights and, with the Vendor's agreement, contracts out of its rights under sections referred to in sections 107(2), 8(e) and (g) to (l) of the PPSA. (f) The Customer agrees that nothing in section 113, 114(1)(a), 117(1)(c), 133 and 134 of the PPSA shall apply to these terms, and, with the Vendor's agreement, contracts out of such sections. (g) The Customer and the Vendor agree that section 109(1) of the PPSA is contracted out of in respect of particular Goods and Services if and only for as long as the Vendor is not the secured party with priority over all other secured parties in respect of those Goods and Services. (h) The Customer agrees that immediately on request by the Vendor the Customer will procure from any persons considered by the Vendor to be relevant to its security position such agreement and waivers as the Vendor may at any time require.
24. Other Security
(a) The Customer gives the Vendor a Security Interest in all of the Customer’s present and after-acquired property that the Vendor has performed services on or to or in which goods or materials supplied or financed by the Vendor have been attached or incorporated. (b) Without prejudice to such other rights as the Vendor may have pursuant to these Terms and Conditions of Trade, the Vendor reserves the right to request from the Customer such security as the Vendor may from time to time think desirable to secure to the Vendor all sums due to the Vendor and may refuse to supply further Goods and Services to the Customer until such security is given.
25. Events of Default
(a) All payments shall become immediately due to the Vendor and the Vendor may at its option suspend or terminate these Terms and Conditions of Trade and/or exercise any of the remedies available to it under these Terms and Conditions of Trade in the event that: (i) a receiver is appointed over any of the assets or undertaking of the Customer; (ii) an application for the appointment of a liquidator is filed against the Customer which remains unsatisfied for a period of 10 days, or any of the conditions necessary to render the Customer liable to have a liquidator exist, or a liquidator is appointed; (iii) the Customer goes into voluntary liquidation, amalgamates with another company or acquires its own shares in accordance with the Companies Act 1993; (iv) the Customer suspends payments to its creditors or makes or attempts to make an arrangement or composition or scheme with its creditors;or (v) the Customer becomes insolvent within the meaning of the Insolvency Act 1967 or is, becomes, or is presumed to be unable to pay its debts as they fall due as defined in section 287 of the Companies Act 1993 or section 261 of the Companies Act 1955; or commits any act of bankruptcy.
(a) The Vendor’s liability to the Customer shall be limited to the value of the Order supplied and paid for. (b) The Contract and Commercial Law Act 2017, the Fair Trading Act 1986 and other statutes may imply warranties or conditions or impose obligations upon the Vendor which cannot by law (or which can only to a limited extent by law) be excluded or modified. In respect of any such implied warranties, conditions or terms imposed on the Vendor the Vendor’s liability shall, where it is allowed, be excluded or if not able to be excluded only apply to the minimum extent required by the relevant statute. &nbs