Terms and Conditions - New Zealand
ENERAQUE NZ PURCHASE ORDER TERMS AND CONDITIONS
1. ACCEPTANCE OF ORDERS – These Terms of Trade (Terms) shall be incorporated into all contracts involving goods (and any services) supplied by Eneraque NZ LTD irrespective of how the goods are ordered by the Customer.
1.1. These Terms shall prevail over any Customer’s terms to the intent that any sale by Eneraque NZ LTD shall be concluded on these Terms only.
1.2. Eneraque NZ LTD may by written notice to the Customer alter or replace these Terms. In that case, notice may be given by email (to the last email address notified to Eneraque NZ LTD by the Customer) or by posting the new Terms on Eneraque NZ LTD’s website as well as by any of the means set out in clause 14. All orders placed subsequently by the Customer shall be upon the altered or replaced Terms.
1.3. An assent to these current Terms of Trade is an assent to any altered or replaced terms of trade but should Eneraque NZ LTD request Customer to assent specifically to the altered or replaced terms of trade, Eneraque NZ LTD shall not be obligated to accept any job or to deliver any goods until the Customer has complied with that request.
1.4. An order is an offer to purchase that is not binding on Eneraque NZ LTD until accepted in whole or in part. Acceptance will normally be advised by telephone, FAX or email.
1.5. Orders are accepted at the prices ruling when received or as otherwise negotiated.
2. PAYMENT – Payment shall be made in full on the 20th day of the month following the date of the invoice covering delivery (and any installation) of the goods or any other services provided by Eneraque NZ LTD unless otherwise stated in writing or credit has been withdrawn,
3. PRICES – All prices are quoted and charged subject to the addition of freight, installation costs, (unless stipulated in quotation) and GST at the then current ruling rate.
3.1. All prices are subject to alteration without notice prior to acceptance of any order.
3.2. Eneraque NZ LTD shall not be bound by clerical errors or omissions whether in computation or otherwise in any acknowledgement or invoice and the same shall be subject to correction.
3.3. Where a quote has been given, the quote will be open for acceptance by the Customer within the time stated in the quote but where no such time is stated, then within 30 days from the date of the quote. To accept a quote, the Customer must state the quotation number.
4. RISK – All risk of any loss, damage to or deterioration of the goods due to any cause whatsoever shall pass to the Customer when the goods leave Eneraque NZ LTD’s warehouse.
4.1. Insurance beyond carrier’s limited liability is for the Customer’s care.
4.2. Any agreed delivery date is an approximate date only and no delay in delivery will entitle the Customer to cancel its order for goods.
4.3. If the Customer fails to take delivery of the goods (and any services) when they are made available or fails to provide any instructions, documents, licences, consents or authorisations required to enable the goods (and any services) to be delivered, then without prejudice to any other rights or remedies that Eneraque NZ LTD may have, Eneraque NZ LTD may store the goods or arrange for the goods to be stored at the cost and risk of the Customer until such time as the Customer takes physical delivery of the goods or may cancel the order or contract pursuant to any express or implied rights of cancellation available to it.
4.4. Eneraque NZ LTD reserves the right to without notice withhold supply to the Customer, without being liable in any way for any loss, damage, cost or expense of any kind that may directly, indirectly, consequentially or otherwise be suffered or incurred by the Customer where Eneraque NZ LTD has insufficient goods to fill an order or the ordered goods have been discontinued or Eneraque NZ LTD has determined in its absolute discretion that credit should no longer be extended to the Customer.
4.6. No liability is accepted for loss or damage of any kind whether direct, indirect, or consequential or otherwise or for any delay caused by any event or circumstance beyond Eneraque NZ LTD’s control.
5. RETURNS – Returns (where there is no claim pursuant to clause’s 6 or 8) will only be accepted where Eneraque NZ LTD has agreed beforehand.
5.1. All returns must be sent freight paid within 7 days of delivery.
5.2. Eneraque NZ LTD reserves the right to charge a 15% handling fee on the returned goods.
6. CLAIMS – Eneraque NZ LTD accepts no liability for any loss or damage of any kind occasioned by the supply of incorrect goods (type or number of goods) or services.
6.1. Claims requesting the supply of the correct goods where there the wrong number of or incorrect goods have been supplied must be received by Eneraque NZ LTD no later than 7 days after the date of delivery; time being essential.
7. DESIGN CHANGES, COPYRIGHT AND TRADE MARKS – Eneraque NZ LTD’s products and designs are subject to modification or improvement without prior notice.
7.1. All copyright in relation to Eneraque NZ LTD’s products, designs, brochures, catalogues and any other relates marketing or explanatory material is vested in Eneraque NZ LTD.
8. WARRANTIES AND LIABILITY FOR CLAIMS – This clause is subject only to the provisions of the Consumer Guarantees Act 1993 if applicable (which Eneraque NZ LTD contracts out of if the Customer acquires or holds itself out as acquiring the goods for business purposes).
8.1. Eneraque NZ LTD shall not be bound by any condition, warranty, guarantee, representation, statement or term that is not expressly set out in these Terms or agreed to in writing by an authorised person on Eneraque NZ LTD’s behalf.
8.2. Any liability of Eneraque NZ LTD whether in contract, tort or otherwise for any loss, damage or injury arising directly or indirectly from any defect in or non-compliance of the goods supplied or any defect in the installation thereof is limited to replacement or repair of such defective or non-complying goods or the cost of remedying such defective installation as the case may be.
8.3. Eneraque NZ LTD shall not be liable for any consequential indirect or special damage or loss of any kind including without limitation loss or profits or any other form of economic loss, nor shall Eneraque NZ LTD be liable for any damage or loss caused to the Customer’s servants, agents, contractors, visitors, tenants, trespassers or any other person (whether similar to the foregoing or not) in respect of any loss, damage or injury arising from any defect in or non-compliance of the goods or from any defect in the installation thereof.
8.4. No claim by the Customer shall be effective or enforceable unless in writing and received by Eneraque NZ LTD within 7 days after delivery of the products to the Customer or the completion of the installation thereof where the contract includes installation. Where Eneraque NZ LTD publishes information about a product that has been supplied to it by manufacturers or suppliers, then to the extent permitted by law, Eneraque NZ LTD accepts no responsibility for the accuracy or correctness of the information and prospective customers should make their own inquiries about the products. Should Eneraque NZ LTD’s website at any time contain links to any other sites, Eneraque NZ LTD accepts no responsibility or liability for any information contained or not contained on or through those sites. Any Customer that is a reseller shall ensure that its terms of sale exclude the application of the Consumer Guarantees Act where their buyer acquires or holds itself out as acquiring the goods for business purposes.
9. WAIVER AND VARIATION – All the original rights, powers and exemptions and remedies of Eneraque NZ LTD shall remain in force not withstanding any neglect, forbearance or delay in the enforcement thereof. Eneraque NZ LTD shall not be deemed to have waived any terms or conditions unless such waiver shall be in writing and any such waiver, unless the contrary is expressly stated, shall apply to and operate only in relation to the particular transact ion dealing or matter. No variation of any accepted order shall be binding unless agreed in writing (this includes email).
10. PROPERTY – TITLE AND SECURITY INTEREST – As between Eneraque NZ LTD and the Customer, ownership of all goods supplied by Eneraque NZ LTD shall be retained by Eneraque NZ LTD until payment in full of all monies for any goods (including interest) owed by the Customer to Eneraque NZ LTD are paid in full and in cleared funds.
10.1. Until payment is made, the Customer shall, where the goods have been purchased for resale, store the goods separately from goods not supplied by Eneraque NZ LTD and the Customer shall hold the goods as bailee for Eneraque NZ LTD.
10.2. Where the goods have been purchased for resale, the Customer is authorised to resell the goods in the ordinary course of business but that authority may be revoked by Eneraque NZ LTD at any time and shall be deemed automatically revoked if any of the events specified in clause 12 occur.
10.3. At any time after payment is due, Eneraque NZ LTD may enter the premises occupied by the Customer or where the goods are otherwise stored to take possession of the goods.
10.4. Eneraque NZ LTD will not be liable for the costs, losses, damages, expenses or any other monies or losses suffered by the Customer as a result of Eneraque NZ LTD retaking possession of the goods. If there is any doubt as to whether any goods in the possession of the Customer belong to Eneraque NZ LTD or to the Customer, Eneraque NZ LTD’s decision will be final and conclusive except in the case of manifest error (the onus of proving such being on the Customer).
10.5. If the Customer resells the goods or any of them before payment is made to Eneraque NZ LTD for the goods the Customer shall hold the sale proceeds and any resultant book debts in trust for Eneraque NZ LTD and account to Eneraque NZ LTD for all monies owed by the Customer to Eneraque NZ LTD.
10.6. For the purposes of the Personal Property and Securities Act 1999 (PPSA), the Customer acknowledges that Eneraque NZ LTD has a purchase money security interest in goods supplied by Eneraque NZ LTD (and any goods for which any of those goods have been exchanged or traded or that have been acquired in lieu of t hose goods, any new goods into which the goods have been manufactured, processed, assembled or commingled such that their original identity is lost, and all proceeds including without limitation accounts receivable in relation to any of those goods) to secure the price payable for the goods (and any interest or other charges payable in relation to the goods).
10.7. The Customer acknowledges that Eneraque NZ LTD also has a general security interest Customer to Eneraque NZ LTD at any time. The Customer will, if Eneraque NZ LTD requests, sign any documents (including any new contracts), provide all the necessary information and do anything else required by Eneraque NZ LTD to ensure that Eneraque NZ LTD’s purchase money security interest is a perfected security interest. The Customer will not enter into any security agreement that permits any other person to register any other security interest in respect of the goods or the proceeds. Eneraque NZ LTD may at its discretion and in such manner as it determines allocate payments made by the Customer for any goods supplied by Eneraque NZ LTD. Where Eneraque NZ LTD takes possession of the goods, Eneraque NZ LTD may sell the goods by any means at any time and from any sale proceeds, deduct all costs incurred in connection with the sale and all monies owed (even if not due and payable) by the Customer to Eneraque NZ LTD on any account (to the extent to which Eneraque NZ LTD has priority over any other interested parties). Eneraque NZ LTD may recover from the Customer any shortfall on any sale or attempted sale.
10.8. The Customer waives its rights under sections 114 (1)(a) (notice of sale), 116 (statement of account), 117(1) (distribution of surplus sale proceeds), 119 (recover surplus), 120(2) and 121 (receive notice of any proposal to retain goods and object to any proposal), 125 (removal of accession and damage caused when removing accession), 129 (notice of removal of accession), 131 (right to see k Court order as to removal of accession), and 133-134 inclusive (reinstatement of Agreement) of the PPSA.
10.9. The Customer waives its right to receive a copy of the verification statement confirming registration of a financing statement or a financing change statement relating to Eneraque NZ LTD’s security interest.
11. DEFAULT – Eneraque NZ LTD may, without prejudice to any other provisions of these Terms or any other remedies available to Eneraque NZ LTD, withdraw credit (if credit has been agreed) and/or withdraw any discounts that it has agreed to provide and/or withhold deliveries and/or require immediate payment (without the need to make formal demand) for goods (and any services) that are made available if Eneraque NZ LTD considers the Customer to be a credit risk. Where any payment is not made on the due date, then without prejudice to any other rights or remedies available to Eneraque NZ LTD under these Terms or at law or in equity or otherwise, Eneraque NZ LTD may:
11.1. Charge interest, on all overdue accounts at the rate of 4% per month above the base lending rate of Eneraque NZ LTD’s primary banker as at the date of default, calculated on a daily basis from the date on which payment was due until payment is made;
11.2. Withhold deliveries until all outstanding payments (whether or not presently due and payable) for any goods are paid or cancel undelivered orders or portions thereof;
11.3. Cancel an order or portion thereof and retain as liquidated damages any moneys paid by the Customer (up to a maximum of 10% of the purchase price) and sue the Customer for damages;
11.4. Suspend or cancel credit and require cash on delivery or payment in advance of delivery;
11.5. Suspend or cancel any discounts that have been agreed; and unless Eneraque NZ LTD agrees otherwise, all payments for any goods whether or not then due shall immediately become due and payable. The Customer shall pay Eneraque NZ LTD upon demand all costs and expenses incurred by Eneraque NZ LTD (including without limitation all legal costs on a solicitor and own client basis) incurred or suffered by Eneraque NZ LTD in endeavouring to obtain payment by the Customer or any guarantor of all sums payable the Customer to Eneraque NZ LTD.
12. CANCELLATION – Without prejudice to any other rights or remedies that Eneraque NZ LTD may have, Eneraque NZ LTD may cancel an order in whole or in part or the contract upon the occurrence of any of the following events (“Events”):
12.1. Eneraque NZ LTD considers that any information provided by the Customer or any Guarantor is materially inaccurate, incomplete or incorrect;
12.2. Any resolution is passed or application made for the liquidation of the Customer or the Customer does anything that would render it liable to be liquidated or a receiver or receiver and manager or administrator (or any similar person) is appointed in relation to any or all of the Customer’s assets;
12.3. The Customer commits any act of bankruptcy or has any monetary judgement entered against it or any exaction is levied against any assets of the Customer.
12.4. The Customer is, or in Eneraque NZ LTD’s opinion, may be insolvent or for any reason, Eneraque NZ LTD deems the Customer’s credit to be unsatisfactory;
12.5. The Customer enters into or endeavours or proposes to enter into any composition with creditors; and Eneraque NZ LTD may recover from the Customer any losses, damages, costs, interest, fees, charges and expenses (including without limitation all legal costs) incurred by Eneraque NZ LTD as a result of any of these Events and the subsequent cancellation by Eneraque NZ LTD.
12.6 Without prejudice to any other rights it may possess, if Eneraque NZ LTD cancel an order or the Customer cancel an order, the following charges will be payable by the Customer on termination:
12.6.1 if cancellation occurs less than 7 days after the receipt of the Customer’s purchase order (Effective Date), the higher of 15% of the Price or outlaid expenses of sub-suppliers orders.
12.6.2 if cancellation occurs between 7 and 28 days after the Effective Date: then 75% of the Price.
12.6.3 if cancellation occurs after 28 days after the Effective Date: 100% of the Price; and
12.6.4 notwithstanding clauses 12.6.1 to 12.6.3, if cancellation occurs after the date of notice of ready to ship, whenever given: 100% of the Price.
13. CUSTOMER’S CHANGE OF NAME – The Customer will give Eneraque NZ LTD not less than 14 days written notice of any proposed change to the Customer’s name and co-operate with Eneraque NZ LTD to enable a Financing Change Statement to be registered accordingly.
14. NOTICES – Any notice or other document required to be in writing by virtue of these Terms may be given in person or by registered letter or facsimile addressed to the registered office or place of business or residential address of the party to be served last known to the other party. Service by registered letter shall be deemed effective at the time the registered letter would normally have been delivered in the ordinary course of post. Service by facsimile shall be deemed effective at the time of sending provided that the sending machine produces a printout of the time date and uninterrupted transmission of the message.
15. ASSIGNMENT – The Customer may not assign all or any of its rights or its rights or obligations under the contract between the parties without Eneraque NZ LTD’s prior written consent (which may be given or withheld in Eneraque NZ LTD’s absolute discretion).
16. GENERAL – These terms and conditions of sale and Eneraque NZ LTD’s quotation constitute the entire agreement between Eneraque NZ LTD and the Customer and there shall be no additional terms or documents and no waiver of terms unless both parties agree otherwise in writing.
16.1 If any term or condition is declared or becomes unenforceable, invalid or illegal for any reason, the remaining terms and conditions shall remain in full force and effect.
17. GOVERNING LAW – This Agreement is governed by and is construed in accordance with the laws of the State of Queensland Australia.
17.1 Each party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts of Queensland and courts entitled to hear appeals from these courts.
17.2 The United Nations Convention on Contracts for the International Sale of Goods (or its successor) will not apply to these Agreement Terms and Conditions.
18. SET-OFF – Eneraque NZ LTD may set-off any amount owing by Eneraque NZ LTD to the Supplier (whether liquidated or unliquidated. All rights, including implied rights, of the Supplier to set-off against any amounts owing by Eneraque are excluded.