1.1 The following terms and conditions (Terms) govern the sale of all goods (Goods) and hireage of equipment (Equipment) by SIKA (NZ) LIMITED (us) to the Customer (you). These Terms prevail over any of your terms and conditions so that any sale of Goods or hireage of Equipment by us to you shall be concluded on these Terms only. Your acceptance of any Goods or Equipment from us indicates your continuing acceptance of these Terms.
1.2 Notwithstanding clause 1.1, we may by written notice to you, alter or replace these Terms. All Goods or Equipment subsequently supplied to you shall be upon the altered or replaced terms and conditions.
2. QUOTATIONS AND PRICES
2.1 Prices are subject to alteration without notice and the price payable by you shall be the price ruling at the time the Goods or Equipment are delivered to you in accordance with clause 9.
2.2 Where we provide a quotation to you, it will be open for acceptance for 30 days unless we state otherwise in writing. No order or quotation shall be binding on us until we accept it in writing. We may revise or withdraw quotations at any time prior to accepting them.
2.3 All prices and quotations are in New Zealand dollars and exclude GST, any other applicable taxes or duties, all of which shall be added to the price and payable by you.
2.4 We may require you to pay costs relating to insurance, freight, handling and delivery that we incur in delivering Goods or Equipment to you.
2.5 We may, in our discretion, set credit limits for you or require you to pay a deposit or bond in respect of any Goods or Equipment.
3.1 You shall pay the price:
(a) No later than the 20th of the month following the date of the invoice or, if we require, immediately after the Goods or Equipment have been delivered in accordance with clause 9 (Payment Date);
(b) In full without deduction or set-off of any kind;
(c) To the bank account nominated by us in writing from time to time.
a) If any payment is not made on or before the Payment Date; or,
b) In our opinion you will be unable to meet debts as they fall due; or,
c) You cease or threaten to cease to carry on business; You become insolvent, convene a meeting with your creditors or propose or enter into an arrangement with creditors, or make an assignment for the benefit of your creditors, or; A receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of you or any of your assets, then all amounts owing to us, whether or not due for payment, shall immediately become due and payable and without prejudice to any other rights or remedies available to us under these Terms or at law or in equity or otherwise; Then we may:
d) Charge interest, by way of liquidated damages, on all overdue accounts at the rate of 2% per month calculated on a daily basis from the date on which payment was due until payment is made;
e) Withhold deliveries or cancel undelivered orders or parts of them;
f) Cancel all or part of an order, retain as liquidated damages any moneys paid by you (up to a maximum of 10% of the purchase price) and sue you for damages;
g) Cancel any other order or contract or arrangement between us or suspend performance of such order, contract or arrangement pending payment without being liable to you for any losses (of any kind and whether direct or indirect or consequential) you might suffer.
4.1 You indemnify us for all costs (including legal costs on a solicitor/client basis), expenses or other sums we reasonably incur in exercising any right or remedy available to us consequent upon your default which sum shall also carry interest at the rate specified in clause (4) (d), if unpaid within one calendar month of demand having being made. You shall pay us within 5 days of demand being made.
4.2 If we cancel all or part of any order or contract or arrangement between us or suspend performance of such order, contract or arrangement pending payment or as a result of any other breach of these Terms by you, we will not be liable to you for any losses (of any kind and whether direct or indirect or consequential) you might suffer.
4.3 In addition to any other lien to which we may by law be entitled, we shall be entitled to a general lien on all goods of yours in our possession (whether or not payment has been made partly or wholly for those goods) for all amounts due from you and may sell (privately, by tender or by auction) all or any of those goods if after receiving 28 days prior written notice of intention to sell you fail to pay such amounts to us. We shall apply the sale proceeds towards all amounts owed to us by you and shall pay any surplus to you.
5. EQUIPMENT HIRE
5.1 If we hire Equipment to you it shall be for the period we specify in writing (Hire Period) and for the price we specify in writing.
5.2 Where you hire Equipment from us, you acknowledge that we have no liability to you for any direct, indirect or consequential loss or damage whatsoever and howsoever arising (in contract, tort or otherwise) in connection with the Equipment.
5.3 You warrant that you shall:
(a) take proper and reasonable care of the Equipment and return it to us at the end of the Hire Period in the same order and condition as it was at the commencement of the hire (fair wear and tear excepted) and in a reasonably clean state;
(b) carry out all necessary servicing of the Equipment as may be reasonably required as part of the daily operation of the Equipment at your cost;
(c) satisfy yourself that the Equipment is suitable for its intended use;
(d) use the Equipment in a lawful manner;
(e) follow all reasonable directions we give you in relation to the Equipment or which are specified by the manufacturer;
(f) immediately cease using the Equipment and notify us if the Equipment is faulty, breaks down or if any licences or certificates required by law expire during the Hire Period;
(g) notify us if the Equipment is lost, stolen or damaged and then follow our reasonable instructions in relation to the Equipment;
(h) ensure that all persons who use the Equipment shall be competent and qualified to use the Equipment and that they shall only use the Equipment in the manner it was designed to be used;
(i) ensure that the persons using the Equipment shall do so in accordance with the Health and Safety at Work Act 2015 and all other relevant legislation and applicable regulations.
5.4 You indemnify us for and against:
(a) any and all loss, theft or damage to the Equipment that occurs while the Equipment is in your possession; and
(b) any liability, losses, damages or expenses (on a full indemnity basis) that we incur or suffer as a result of any claim made by any person against us in respect of any loss or liability arising from your use of the Equipment or any breach by you of any of the warranties specified in clause 5.3.
5.5 We make no warranty or representations as to the state, quality or fitness of the Equipment for any purpose and no such warranty shall be implied including in any documents provided to you which relate to the Equipment.
6. FORCE MAJEURE
6.1 We do not accept any liability for loss or damage (in either case, of any kind and whether direct, indirect or consequential) or delay caused by Government order, civil commotion, accidents, fires, strikes, lock-outs or delay in obtaining raw materials whether as a result of shortage or otherwise or any other cause beyond our reasonable control.
7. RETURN OF GOODS OR EQUIPMENT
7.1 You shall inspect the Goods and / or Equipment on delivery in accordance with clause 9 and shall within 7 days of delivery notify us of any alleged shortage in quantity, damage or the like or failure to comply with any description or quotation. If you notify us that the Goods and / or Equipment are short in quantity, damaged or the like or fail to comply with any description or quotation, then you will provide us with an opportunity to inspect the Goods and / or Equipment within a reasonable time following delivery. If you fail to comply with the provisions of this clause, the Goods and / or Equipment shall be deemed delivered in accordance with these Terms.
7.2 If we have agreed in writing that you may reject Goods and / or Equipment, our liability shall be limited to replacing or repairing the Goods or Equipment at our discretion, provided that:
(a) You have complied with the provisions of clause 7.1;
(b) The Goods and / or Equipment are returned at your cost within ten (10) days of the delivery date;
(c) The Goods or Equipment are returned in the condition in which they were delivered and with all packaging material, brochures and instruction material in as new condition as is reasonably possible in the circumstances; and
(d) We will not be liable for Goods or Equipment which have not been stored or used in a proper manner.
7.3 We may, in our absolute discretion and with or without conditions, permit certain Goods or Equipment to be returned to us for credit.
7.4 If you return Goods or Equipment pursuant to clause7.3, you shall pre-pay delivery of the Goods or Equipment to us and we shall credit your account with the price you paid for those Goods or Equipment, less:
(a) an administration and handling fee of 15% of the price paid by you for the returned Goods or Equipment; or
(b) $120.00 plus GST, whichever is the lesser.
8.1 Basic packaging of goods is included in the price and is non-refundable. We may provide special packaging at an additional cost. We may at our discretion require you to pay a refundable deposit for packing materials.
9.1 Unless otherwise agreed by us in writing, delivery of the Goods or Equipment will occur at the time that we notify you that the Goods or Equipment are available for your collection. You shall make all arrangements necessary to take delivery of the Goods or Equipment whenever and wherever they are tendered for delivery. We shall be entitled to assume that any person accepting delivery of the Goods or Equipment is authorised to do so on your behalf.
9.2 If we have agreed to deliver the Goods or Equipment to your premises, delivery shall occur at the time that the carriers leave our premises. You shall ensure that the carriers will have uninterrupted access to your premises to enable the Goods or Equipment to be delivered.
9.3 If the Goods or Equipment:
9.4 Are not collected by you within 7 days of us notifying you that the Goods or Equipment are available for collection; or
(a) Are to be delivered to your premises and access is not provided in accordance with clause 9.2;
(b) then you shall pay us upon demand the amount calculated by us as will compensate us and the carriers for wasted time and expenditure and any charges relating to storage of the Goods or Equipment.
9.5 Where you have specified a delivery date, we shall use reasonable endeavours to deliver the Goods or Equipment by that date but will not be responsible for any loss or damage (in either case, of any kind and whether direct or indirect or consequential) arising from any delay in the delivery of the Goods or Equipment from any cause whatsoever nor shall any such delay entitle you to cancel any order or to refuse to accept delivery at any time.
10. RISK AND PROPERTY
10.1 Risk in the Goods and / or Equipment shall pass to you on delivery from which point it shall be your obligation to insure the Goods and / or Equipment in our joint names for our respective interests until title passes to you. You must provide us with evidence of insurance on request.
10.2 Title to the Equipment shall remain with us at all times. Title to Goods you purchase from us remains with us until we receive payment in full of all money owing by you to us. Until we have received all money owing by you:
(a) You shall hold the Goods as bailee for us;
(b) You shall keep the Goods in good condition and in a secure manner;
(c) You shall, prior to use or resale of the Goods, store the Goods separately from goods not supplied by us and shall not remove or obscure any brand-name, marking or other means of identification appearing on the Goods or any packaging;
10.3 We may enter the premises you occupy to take possession of the Goods or Equipment at any time after payment is due and unpaid or at the end of the Hire Period. If all or any of the Goods or Equipment are wholly or partially attached to intermingled with or incorporated in any other goods, we may in our sole discretion disconnect, retrieve or sever the Goods or Equipment in order to remove them without being liable for any loss or damage caused or any liability incurred thereby and you indemnify us for any claims for loss or damage that may be made against us as a result of the exercise by us of our rights pursuant to this clause;
10.4 If any of the Equipment is damaged or destroyed during the Hire Period or if the Goods are damaged or destroyed prior to title passing to you, we may, without prejudice to any of our other rights or remedies under these Terms, receive all insurance proceeds payable in respect of the Goods and / or Equipment. This applies whether or not the price has become payable under these Terms. The production of these Terms by the Company is sufficient evidence of our rights to receive the insurance proceeds without the need for any person dealing with us to make further enquiries.
10.5 If you re-sell the Goods or any of them before you make full payment for those Goods, you shall hold the sale proceeds in trust for us in a separate bank account so that the proceeds are identifiable and traceable and account to us for all moneys you owe us.
10.6 If you re-sell the Goods or any of them so as to create a debt owed to you, you assign all legal and equitable title to that debt to us and you irrevocably appoint us as your attorney with all powers permitted by law for the purpose of effecting any such assignment and recovery of any such debt in your name for our benefit.
11. PERSONAL PROPERTY SECURITIES ACT 1999
11.1 You acknowledges that:
(a) These Terms constitute a security agreement for the purposes of the Personal Property Securities Act 1999 (PPSA);
(b) We take a security interest in the Equipment, all Goods we have previously supplied to you (if any) and all Goods that we will supply in the future to you and any proceeds of the sale of those Goods; and
(c) We may register a financing statement to perfect our security interest in the Goods in accordance with the provisions of the PPSA.
11.2 You shall:
(a) Provide all information, execute or arrange for execution of all documents and do all other things that we may require to ensure that we have a perfected first ranking security interest in the Goods under the PPSA.
(b) Indemnify, and upon demand reimburse, us for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register or releasing any Goods or Equipment charged thereby;
(c) Not register a financing change statement or a change demand without our prior written consent;
(d) Give us not less than fourteen (14) days’ prior written notice of any proposed change in your name and/or any other change in your details (including but not limited to, changes in your address, facsimile number, or business practice);
(e) Immediately advise us of any material change in your business practices of selling the Goods which would result in a change in the nature of proceeds derived from such sales; and
(f) Immediately upon our request, procure from any person considered by us to be relevant to our security position such agreements and waivers as we may at any time require.
11.3 You waive your rights to receive a verification statement in respect of any financing statement or financing change statement registered by us or on our behalf under the PPSA and agree that as between us, you will have no rights under (or by reference to) sections 114(1)(a), 116, 117(1)(c), 119, 120(2), 121, 125, 129, 131, 132, 133 and 134 of the PPSA and where we have rights in addition to those in part 9 of the PPSA, those rights shall continue to apply.
12.1 If you wish to cancel an order after it has been placed, you may incur a cancellation fee which we will notify to you at the time of the cancellation.
12.2 We may cancel these Terms or cancel delivery of Goods or Equipment at any time before the Goods or Equipment are delivered by giving written notice to you. On giving such notice we shall promptly repay to you any sums paid in respect of the price for those Goods or Equipment. We shall not be liable for any loss or damage whatsoever arising from such cancellation.
13. COLLECTION, USE AND DISCLOSURE OF INFORMATION
13.1 You and the Guarantor(s) each authorise us to collect from or send to third parties any information we reasonably require to:
(a) Assess your creditworthiness or that of the Guarantor;
(b) Administer and enforce these Terms;
(c) Maintain credit records held by us, any Related Company and external agencies;
(d) Conduct market research, data processing and statistical analysis;
(e) Market goods and services we provide, to any Related Company or any other supplier.
13.2 You and the Guarantor(s) each authorise us to:
(a) Obtain information about you and the Guarantor(s) from other sources as we reasonably require;
(b) Retain and use information about you and the Guarantor(s); and
(c) Provide information to any Related Company and external agencies for the purposes listed in clause 13.1.
13.3 You acknowledge that this clause gives us the right to provide information we obtain about you and the Guarantor(s) to external agencies (including when carrying out credit checks or recording any default under these Terms on your part) and that all such information will be available to other users of those external agencies.
13.4 All such information shall be held by us at our business address or by other parties for the purposes described above in clause 13.1. You and any Guarantor may access and correct this information under the Privacy Act 1993. A fee for retrieval and correction may be charged. For further information please view www.privacy.org.nz.
14. WARRANTIES AND LIABILITIES
14.1 Save for any warranties and conditions we provide in writing in relation to particular Goods or Equipment, we make no representation and give no assurance, condition or warranty of any kind to you (including any assurance, condition or warranty implied by law to the extent that the assurance, condition or warranty can be excluded) in relation to the Goods or Equipment and accept no liability for any assurance, condition, warranty, representation, statement or term not expressly set out in these Terms or otherwise given by us to you in writing.
14.2 You specifically acknowledge that you are acquiring the Goods and / or Equipment for business purposes and that the provisions of the Consumer Guarantees Act 1993 are excluded.
14.3 The benefit of any warranties and conditions we confer on you are personal to you and are non-assignable.
14.4 In no case shall we be liable to you or any other person for indirect or consequential loss or damage of any kind arising out of, or attributable to any breach by us, of our warranties or conditions or obligations under these Terms or under negligence or otherwise. For the purposes of these Terms consequential loss includes (without limitation) loss or use of goods or services, loss of income or profit and loss or damage to persons and property.
14.5 Regardless of the legal basis of any claim of any kind made against us, our maximum liability to you under any circumstances shall not exceed the purchase price paid or payable for the Goods or Equipment supplied by us which gave rise to that claim.
14.6 No employee, agent of, or independent contractor that we engage shall in any circumstances be under any liability of any kind to you for any loss or damage whether arising or resulting directly, indirectly or consequentially from any act, neglect or default on the part of such person while acting in the course of or in connection with his or her employment, agency or engagement and, without prejudice to the generality of the foregoing provision, every exemption limitation, condition and right expressed or implied in these Terms on our part or in our favour shall extend to protect every such employee, agent or independent contractor acting as aforesaid.
15.1 If you sell any of the Goods, you must do so under the trade marks registered by us and you must ensure that such Goods are sold upon terms and conditions that include terms identical to these Terms.
16.1 We shall not be deemed to have waived or varied any provision of these Terms or any right or remedy which it may have under these Terms or at law or in equity or otherwise unless the waiver or variation is in writing signed by us. No waiver of a breach shall be deemed to be a waiver of any other breach or any further breach.
17.1 Any notice required by this Terms shall be in writing and be given or sent by letter or email to the address as may be notified by the addressee to the other party from time to time.
17.2 Any notice given or sent by:
(a) Letter shall be deemed to have been given or sent three days after being deposited in the post;
(b) Email shall be deemed served when the notice enters the information system of the addressee, if this occurs within business hours at the place where the addressee’s principal place of business is located in New Zealand but, if not, at 8.30am on the following business day in such place.
17.3 In any event, a notice shall be sufficiently given or served if actually received by a party or a party’s solicitor or if sent to a party’s registered office.
17.4 Any notice or other document required to be in writing by virtue of these Terms shall only be effective on our part if signed by our General Manager.
18. APPLICABLE LAW
18.1 These Terms and the relationship between the parties shall be governed by the laws of New Zealand.
Version No.: 0719