Terms and Conditions - New Zealand
ENERAQUE NZ PURCHASE ORDER TERMS AND CONDITIONS
1.FORMATION OF CONTRACT
1.1 The delivery of a PO by Eneraque NZ Ltd (Eneraque) to the Supplier constitutes an offer by Eneraque to acquire the Deliverables described in that PO from the Supplier on the terms contained in that PO and this Agreement.
1.2 That offer is accepted and the Agreement is formed between Eneraque and the Supplier upon the earlier of when the Supplier confirms acceptance of the PO, informs Eneraque in writing that the Deliverables will be supplied, commences the design, manufacture or supply of the Deliverables, accepts payment from Eneraque in respect of the Deliverables, delivers the Deliverables or otherwise acts in a way which demonstrates that an Agreement has been formed between the parties.
2. SUPPLIER OBLIGATIONS
2.1 The Supplier will:
(a) deliver the Deliverables to the Delivery Location by the Delivery Date in accordance with this Agreement; and
(b) do all things and perform all other obligations required by this Agreement and at law.
3. ENERAQUE’S OBLIGATIONS
3.1 Subject to the satisfactory performance by the Supplier in accordance with the provisions of this Agreement, Eneraque will pay to the Supplier the Purchase Price on the basis as set out in this Agreement.
4.1 In the event of any anticipated or actual delay in delivery, the Supplier will immediately notify Eneraque in writing of the reasons for the delay and the actions being taken to overcome or minimize the delay.
4.2 If the Supplier fails to Deliver the Deliverables to the Delivery Location by the Delivery Date, the Supplier will be liable to pay to Eneraque Liquidated Damages for every day or part thereof after the Delivery Date up to and including the date Delivery occurs or the date the Agreement is terminated, whichever occurs first.
4.3 The Deliverables must be Delivered with:
(a) detailed identification documentation on each single package, including a certificate of conformance / release certificate detailing Agreement number, PO number, part number and description, serial number and quantity delivered;
(b)all Documentation; and
(c) copies of any manufacturer’s certificate of conformance along with Supplier’s release certificate.
4.4 From the date of the PO until the date Delivery occurs, the Supplier must provide weekly reports to Eneraque in the form as notified by Eneraque to the Supplier from time to time.
5. PRICE, PAYMENT & TAXES
5.1 The PO price is firm and includes customs duty, packaging, marking, handling, insurance, freight and delivery, all taxes including GST, levies, and any other applicable duties costs and charges. No alterations will be accepted unless by prior written agreement with Eneraque’s Representative.
5.2 All Deliverables under this PO must be invoiced on or after Delivery or in accordance with the payment milestones identified in the PO. Payment of the invoice is subject to the satisfactory performance by the Supplier in accordance with the provisions of this PO.
5.3 Eneraque will pay the Supplier within forty-five (45) days after the end of the month in which a correctly rendered invoice is received. A correctly rendered invoice is an invoice which claims payment of amounts only in accordance with the Supplier’s entitlement to same under this Agreement, complies with the GST Act, contains the PO number and the Agreement number, certificate of conformance/release certificate number, description and quantities of Deliverables delivered and any other information required by Eneraque.
5.4 Eneraque will have no liability for any other expenses or costs incurred by the Supplier.
5.5 All payments made by Eneraque to the Supplier are payments on account only. The Supplier will promptly repay to Eneraque any amounts paid in excess of amounts due to the Supplier.
5.6 The Supplier releases and indemnifies Eneraque in respect of any claim made by the Supplier for payment of an amount not invoiced by the Supplier within 30 days of Delivery.
6.1 Eneraque may set-off any amount owing by Eneraque to the Supplier (whether liquidated or unliquidated) by any amount claimed by Eneraque to be owing to it by the Supplier.
6.2 All rights, including implied rights, of the Supplier to set-off against any amounts owing by Eneraque are excluded.
7.1 The Deliverables must meet or exceed the latest revision of all applicable standards or codes issued by Standards Australia/New Zealand, or equivalent.
8. INSPECTION AND TEST
8.1 Eneraque will have the right to inspect and test the Deliverables including the right to reject and return the Deliverables at the Supplier’s expense if, in the opinion of Eneraque, the Deliverables do not comply in any respect whatsoever with the PO or this Agreement.
8.2 Any inspection or test carried out pursuant to this clause does not relieve the Supplier from any of its own responsibilities and obligations under this PO unless otherwise stated by Eneraque.
8.3 During the term of this Agreement, the Supplier will permit any representative of Eneraque to access its premises, and any of its records or accounts in connection with the provision of the Deliverables or its compliance with this Agreement.
9. RISK AND TITLE
9.1 Risk in the Deliverables will pass from the Supplier to Eneraque on the later of Delivery or Acceptance.
9.2 Full ownership of, and unencumbered title in, the Deliverables or any part of it will pass to Eneraque upon Eneraque making any payment with respect to the Deliverables.
9.3 Where Eneraque has supplied materials or equipment in connection with the Deliverables, the risk for loss of or damage to such supplied materials will transfer to the Supplier when delivered into the Suppliers care, custody and control and remain there until returned to Eneraque. The title in Eneraque supplied material or equipment remains with Eneraque at all times and the Supplier must not under any circumstances encumber or otherwise make such material or equipment the subject of any lien or charge. The Supplier must clearly label any supplied materials or equipment as property of Eneraque. The Supplier will return such material or equipment to Eneraque in the event of any termination of this PO.
9.4 The Supplier:
(a) assigns to Eneraque immediately upon its creation, the rights in all Foreground IP created by the Supplier in connection with the provision of the Deliverables;
(b)grants to Eneraque a perpetual, royalty free, irrevocable, world-wide, non-exclusive license in respect of all Background IP, including the right to sub-licence, to use, modify, support, develop and maintain the Deliverables for Eneraque’s purposes; and
(c) will grant to Eneraque a licence to exercise all Third Party IP with respect to the Deliverables.
10.1 The parties will keep confidential and secure, and not misuse, any Confidential Information.
10.2 The parties will obtain the prior written consent of the disclosing party where Confidential Information is to be disclosed for any reason other than where such disclosure is required for the purposes of providing the Deliverables or by law.
10.3 The Supplier will return or certify as to the destruction of Confidential Information at the earlier of a request by Eneraque of the expiration or termination of this Agreement.
11.1 The Supplier warrants and represents that:
(a) it is appropriately qualified and experienced to provide the Deliverables;
(b) It has, (together with any subcontractors) sufficient numbers of properly qualified and experienced personnel at its disposal to perform in accordance with this Agreement; and
(c) it is properly licensed, equipped, organised and financed to comply with all of its obligations under this Agreement.
11.2 The Supplier further warrants that no works (including computer programs, diagrams, flow charts or other work) employed or created by the Supplier in connection with the provision of the Deliverables (the Supplier IP) infringes any IP or other right or property belonging to or benefiting any third party.
11.3 The Supplier acknowledges that Eneraque enters into this Agreement in reliance on the Supplier’s warranties in this clause, and the Supplier’s skill and judgment to perform in accordance with the provisions of this Agreement and provide the Deliverables.
11.4 The Supplier warrants the Deliverables will:
(a) conform to the description, drawings, specifications and these terms and conditions; and
(b) be fit for their intended use and purpose; and
(c) for the warranty period stated in the PO, or if there is not one stated, then for 12 months from Acceptance, be free from any defect in design, materials and workmanship.
11.5 During the warranty period stated in the PO, or if there is not one stated, then for 12 months from Acceptance, the Supplier will at its own expense (including the cost of repackaging and return transport) repair or replace the Deliverables that are in breach of this Clause.
12.1 The Supplier will indemnify and hold harmless Eneraque, its officers, employees and agents against any liability, loss, damages, claim, suit, action, demand, expense or proceeding of any nature in respect of:
loss of, or damage to, property (including Eneraque’s property);
(a) personal injury illness or death;
(b) claims by any third party, including in respect of IP and Confidential Information; and
(c) costs and expenses including the costs of defending or settling any claim,
(d) arising out of or as a consequence of any work under this Agreement by the Supplier, its employees, officers, agents, contractors and suppliers and/or subcontractors.
13.1 In addition to any insurance which the Supplier is by law obliged to effect, the Supplier will procure and maintain at its own expense, with a reputable insurance company the following policies of insurance:
(a) a. Workers compensation as required by law including a principal’s indemnity extension;
(b) property insurance covering the full replacement value of Eneraque’s materials and equipment;
(c) public liability for an amount of not less than $20,000,000.00; and
(d) product liability insurance for an amount not less than $20,000,00.
13.2 On written request by Eneraque, the Supplier must provide certificates of currency for insurance retained in accordance with this Agreement. If certificates of currency are not produced within seven (7) days of receipt of a written request Eneraque may:
(a) withhold payment to the Supplier; or
(b) procure the appropriate insurance policies on behalf of the Supplier, the cost of which will be a debt due from the Supplier to Eneraque.
14 TERMINATION FOR DEFAULT
14.1 If the Supplier fails to comply with the provisions of this Agreement or commits a material breach of this Agreement and fails to remedy that breach within fourteen (14) days of receiving written notice from Eneraque requiring same, Eneraque may terminate this Agreement by providing seven (7) days written notice.
14.2 Eneraque may terminate this Agreement immediately by providing written notice to the Supplier where the Supplier becomes insolvent or bankrupt, or goes into liquidation.
14.3 If Eneraque terminates in accordance with this clause, Eneraque will not be obliged to make any payment in respect of such termination, and will be entitled to recover from the Supplier Eneraque’s costs and damages incurred as a result of the breach and / or termination.
15 TERMINATION FOR CONVENIENCE
15.1 In addition to any other rights it may have under this Agreement, Eneraque is entitled at any time and for any reason to terminate this Agreement, by notifying the Supplier in writing that this Agreement or a specified part thereof, will be terminated on the date specified in such notice, and in that event, the Supplier will comply with such directions that Eneraque may give to the Supplier in relation to subsequent performance of this part of the Agreement. Upon receipt of notice under this Clause, the Supplier will:
(a) do everything possible to mitigate all losses, costs (including the costs of compliance with any such direction), and expenses arising in consequence of the termination of this Agreement or part thereof; and
(b) terminate all affected subcontracts or supply agreements.
If requested in writing by the Supplier within thirty (30) days after the service of a notice, Eneraque will pay to the Supplier all moneys due and not previously paid to the Supplier for the Deliverables completed in accordance with this Agreement and for work thereafter completed as specified in the notice. The total sum to be paid to the Supplier will not include any consideration for loss of anticipated profits for terminated Deliverables or work, and the Supplier hereby agrees to waive all claims in relation to same. In no case will the amount payable by Eneraque for the terminated work exceed the price that would have been payable if the work had been completed.
16. WORKPLACE HEALTH AND SAFETY
16.1 The Supplier must:
(a) ensure all personnel complete an Eneraque safety induction prior to commencement of activities on Eneraque owned or controlled premises;
(b) comply with the statutory obligations placed upon it under any applicable workplace health and safety legislation in each State or Territory and any applicable regulations made under that legislation;
(c) comply with any applicable advisory standard, industry codes of practice or New Zealand Standards; and
(d) comply with any directions given by Eneraque with respect to workplace health and safety, security or Environmental regulatory or policy requirements, which apply to the provision of the Deliverables under this Agreement.
16.2 The Supplier must provide to Eneraque a report whenever required by Eneraque which:
(a) confirms the Supplier is compliant with workplace health and safety legislation as it applies in each State or Territory;
(b) lists any hazards and risks associated with the activities to be conducted;
(c) lists specific control measures that will be used to mitigate any risks associated with the activities;
(d) details the proposed method for conducting the activity, including how safety controls will be implemented;
(e) details qualifications of persons conducting the activities; and
(f) details the procedure for first aid and injury management while conducting the activities.
16.3 Any incident which has the potential to cause, or causes, an accident, injury or illness to the Supplier or Supplier’s personnel pursuant to work being performed under this PO must be reported to Eneraque immediately.
16.4 A written report detailing the events surrounding the accident and/or incident will be submitted by the Supplier to Eneraque’s Representative within twenty-four (24) hours. The Supplier will provide any additional information which Eneraque may reasonably require.
16.5 The reporting obligations set out in this Clause are in addition to any obligations to report provided for in applicable workplace health and safety legislation in any State or Territory.
17.1 Notwithstanding that the Supplier may have provided Eneraque with the Supplier’s terms and conditions or sought to modify these terms, this Agreement constitutes the entire agreement between the parties and supersedes all communications, negotiations, arrangements and agreements, whether oral or in writing, between the parties with respect to the subject matter of this Agreement. To the extent of any inconsistency between the Agreement documents, the following order of precedence will apply:
(a) Special Terms and Conditions;
(b) these Purchase Order Terms and Conditions; and
(c) the PO; and
(d) any document incorporated by express reference as part of this Agreement.
17.2 No modification to these terms will be binding unless expressly accepted in writing by Eneraque’s Representative.
17.3 The clauses of the Agreement intended to survive termination, including, but not limited to, confidentiality, IP, warranties, indemnities, and any rights arising on termination or expiration, will all survive the termination or expiration of this Agreement.
17.4 If any part of the Agreement is or becomes illegal, invalid or unenforceable, that part of the PO may be severed and the legality, validity or enforceability of the remainder of the PO will not be affected.
17.5 This PO is governed by the laws of the State of Queensland, Australia and each party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts of Queensland. The United Nations Convention on Contracts for the International Sale of 17.6 Goods (or its successor) will not apply.All notices to be provided under this Agreement are to be provided in writing to the email address of the party as identified in the PO.
17.7 Any failure or delay by Eneraque in enforcing any clause of this Agreement will not be construed as a waiver of Eneraque’s rights under this Agreement.
17.8 The Delivery, receipt or Acceptance of any Deliverables will not be deemed a waiver of any rights of Eneraque for any prior failure by the Supplier to comply with any of the provisions of this PO.
17.9 The Supplier must not, without the prior consent in writing of Eneraque, assign, novate or subcontract in part or in whole, its rights or obligations under the PO.
18. CERTIFICATION AND STANDARDS
18.1 The supplier will provide evidence of ISO 9001 quality certification or equivalent, evidence of ISO 14001 environmental certification or equivalent, and any relevant New Zeland Safety standards upon request of Eneraque.
In this Agreement, unless the contrary intention appears:
Acceptance means that Eneraque is satisfied that the Deliverables comply in all respects with this Agreement.
Background IP means Intellectual Property that exists at the date of the PO or is subsequently brought into existence other than as a result of the performance of this Agreement and which is necessarily related to the Deliverables.
Confidential Information means any Information provided by either party to the other that:
a) is by its nature confidential; or
b) the receiving party knows or ought to know is confidential, but does not include information which:
i. is or becomes public knowledge other than by breach of this Agreement;
ii. is in the possession of a party without restriction in relation to disclosure before the date of the receipt;
iii. is strictly and necessarily required to be disclosed for the performance of this Agreement; in connection with legal proceedings related to this Agreement; or given with the written consent of Eneraque; or
iv. has been independently developed or acquired without an obligation of confidentiality by the receiving party.
Deliverables means all the goods, supplies or services to be provided under this Agreement, including delivery of designs, documents, equipment, reports, Intellectual Property, Technical Data, plans, charts, drawings, calculations, tables, schedules, models, software goods, information and data stored by any means by themselves or in relation to any goods, supplies or services as detailed in the PO.
Deliver or Delivery means the delivery of the Deliverables to the Delivery Location by the Delivery Date in accordance with this Agreement.
Delivery Date means the date specified on the PO under the “Delivery Date”.
Delivery Location means the location specified on the PO under the field “Deliver To”.
Documentation means all drawings, designs, technical information and manuals, requested by Eneraque or required by Eneraque for Eneraque’s use of the Deliverables.
Eneraque means Eneraque Pty Ltd ACN: 605 908 549.
Eneraque’s Representative means the person names as the representative on the PO or where no name is specified, Jeremy Pringle.
Foreground IP means all Intellectual Property that is created or otherwise brought into existence for this Agreement.
GST Act means A New Tax System (Goods and Services Tax) Act 1999.
GST means as defined in the GST Act.
Information means any and all technical and non-technical information provided by either party to the other, including but not limited to, proprietary information including ideas, techniques, sketches, drawings, works of authorship, models, processes, apparatuses equipment, algorithms, software programs, software source documents and formulae related to the current, future and proposed products and services of each of the parties, and including, without limitation, their respective information concerning research, experimental work, development, design details and specifications, engineering, financial information, procurement requirements, purchasing, manufacturing, customer lists, investors, employees, business and contractual relationships, business forecasts, sales and merchandising, marketing plans and information the disclosing party provides regarding third parties.
IP means Intellectual Property, being all copyright (including moral rights), neighbouring rights and all rights in relation to inventions (including patent rights), plant varieties, registered and unregistered trademarks (including service marks), registered and unregistered designs, Confidential Information (including trade secrets and know-how) and circuit layouts, and any other rights resulting from intellectual activity in the industrial, scientific, literary and artistic fields recognised in domestic law anywhere in the world.
Liquidated Damages means the amount specified on the PO as the amount of Liquidated Damages, or where no positive amount is specified, the amount of $1,000 per day, which the Supplier agrees and acknowledges is a genuine pre-estimate of the losses which will be incurred by Eneraque as a result of the delay.
PO means purchase order, being the written order, placed with the Supplier by Eneraque for the provision of the Deliverables in accordance with this Agreement.
Special Terms and Conditions means any terms and conditions in addition to these PO Terms and Conditions which are included on the face of the PO.
Supplier means the company to which the PO is issued that will be responsible for providing the Deliverables.
Third Party IP means Intellectual Property that is owned by a party other than Eneraque or the Supplier and Eneraque or the Supplier and which is necessarily related to the Deliverables.
Eneraque NZ Terms and Conditions of Sale
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.