STANDARD TERMS AND CONDITIONS

PACE ENGINEERING LTD

STANDARD TERMS

  1. Terms of Supply

1.1 These Standard Terms and Conditions set out below (Standard Terms) apply to every supply of goods and/or services made by PPA to the Customer (Supplies). By placing an order for Supplies with PPA, accepting a quote, or otherwise  entering into an agreement to purchase Supplies (Order), the Customer agrees that it is bound by these Standard Terms and  that the Customer’s own terms and conditions do not apply. No variation to these terms, or any other terms, will apply  unless a director of PPA has agreed in writing to such variation or other terms.

1.2 Where the Customer has entered into a separate written supply agreement with PPA, these Standard Terms shall also apply except to the extent that there is any inconsistency between these Standard Terms and the separate supply  agreement.

1.3 These Standard Terms may be modified or added to by specific terms specified by PPA in a quote or Order. A Customer’s acceptance of a quote constitutes an agreement to purchase Supplies on the terms of that quote and these  Standard Terms.

1.4 To the extent permitted by law, all statutory, express or implied warranties or undertakings by PPA regarding the Supplies sold including, without limitation, implied warranties of merchantability, or warranties as to the condition of the  goods, or warranties as to the fitness for any particular purpose of the Supplies are expressly excluded. If specific guarantees or warranties are supplied by the manufacturer, the Customer shall be entitled to the benefit of such guarantees but PPA accepts no liability in respect of such guarantees.

1.5 The Customer agrees that the Supplies are acquired in trade and for the purposes of a business and that the provisions of the Consumer Guarantees Act 1993 will not apply to this transaction.

1.6            To the maximum extent permitted by law, the liability of PPA in respect of all claims for loss, damage or injury arising from a breach of any of PPA’s obligations under these Standard Terms, or from any act or omission of PPA is limited, in each case, to the lesser of:

  1. a) replacement or repair of the affected Goods in respect of which the loss, damage, or injury arose;
  2. b) payment of the actual cost of replacing or repairing the affected Goods in respect of which the loss, damage, or injury arose; or
  3. c) the price of the affected Supplies in respect of which the loss, damage, or injury arose.

1.7 Except as provided for in clause 1.6, to the maximum extent permitted by law, PPA shall not be liable for any direct or indirect loss or damage (including without limitation loss of profits or savings or for any indirect or consequential loss or damage), however caused, arising out of or in connection with the supply of Supplies by PPA.

1.8 The Customer acknowledges that where Supplies are manufactured or supplied in accordance with the Customer’s designs, drawings, specifications, instructions, or requirements, PPA relies entirely on the accuracy and suitability of that information. PPA shall have no responsibility or liability for any loss, cost, damage, or injury suffered by any person arising from or in connection with any defect, insufficiency, error, or non‑compliance in the Customer’s designs, drawings, specifications, or instructions, or from PPA’s compliance with them, whether or not PPA has reviewed, queried, or commented on those designs or specifications. The Customer indemnifies PPA against all claims, losses, damages, liabilities, and expenses (including legal costs on a solicitor‑client basis) arising from or connected with any such defect or non‑compliance. Further, and without limitation, PPA shall have no responsibility to ensure that any Customer‑provided design or specification complies with any statutory, regulatory, building, safety, or industry standard requirements, unless PPA has expressly agreed in writing to assume such responsibility.

1.9 All credit is subject to a credit limit notified by PPA from time to time. PPA may vary, suspend, or withdraw credit at any time without notice and PPA has no obligation to extend credit to the Customer.

 

  1.             Orders

2.1 All Orders must be in writing or if made by telephone, confirmed in writing.

2.2 All quotes are based on the rates in effect at the date of the quotes and are valid for 30 days. PPA reserves the right to withdraw a quote at any time. The Customer agrees that PPA may pass on any increase in input costs and that such  amount will be payable by the Customer in addition to the quoted price.

2.3 Deposit on accepted Quotes may be applicable at time of Acceptance.

2.4 If the Customer wishes to vary the Supplies after the Quote has been accepted, any additional costs incurred by PPA as a result of that variation shall be charged at PPA’s standard rates, unless agreed otherwise.

 

  1.             Prices

3.1 All prices are exclusive of Goods and Services Tax, other taxes and levies, and transport or insurance changes unless specifically stated otherwise.

 

  1.             Payment

4.1 Unless otherwise specified, Supplies must be paid for in full, by the 20th of the month following the receipt of a valid invoice. 

PPA reserves the right to claim progress payments in connection with any supply of Supplies, such payments being due on the 20th of the month following the receipt of a valid invoice. If the Customer disputes any part of an invoice, it must notify PPA before the end of the month in which the invoice was issued, and it must pay the undisputed amount by the due date.

4.2 PPA may withhold supply of Supplies (not withstanding any contract to supply) if payment by Customer is overdue.

4.3 The Customer shall pay interest on any overdue payment from the date of default until actual payment is received at the rate of 20% per annum, calculated on a daily basis.

4.4 The Customer indemnifies PPA against costs of recovery of monies, goods or services which are outstanding pursuant to these conditions. Such costs include, but are not limited to legal fees, debt collection fees and out of pocket expenses in recovery.

4.5 The Customer may not set off, deduct, or withhold any monies owing to PPA for any reason.

 

  1.             Risk and Delivery

5.1            Risk in Goods shall pass to the Customer on delivery. Delivery shall be completed when made at the place specified on the Order or otherwise agreed by PPA.

5.2 PPA will endeavour to meet any indicated delivery date but will not be liable for any consequences resulting from non-delivery or late delivery however caused, or for failure to deliver by any specific method.

5.3 The Customer shall pay all storage, transport and other expenses arising from its failure or refusal to accept delivery at the place and on the date indicated.

5.4 PPA may deliver Goods by instalment. Payment for each instalment shall fall due as if the instalment was the complete Order.

5.5 If the Customer collects the Goods from PPA, it warrants that it will comply with all PPA health and safety requirements, and other site access requirements.

 

  1.             Discrepancies & Return

6.1 The Customer will be deemed to have accepted the Supplies unless it gives PPA written notice of any defect or error within seven days of delivery.

6.2 If the Goods conform to the contract or are rejected without proper cause, PPA shall not be obliged to accept return of Goods for credit. If PPA does accept Goods returned for credit, the Customer shall pay a restocking fee of 15% of the  price of the Goods.

 

  1.             Title to Goods

7.1 Title in the Goods shall remain with PPA until there are no longer any amounts owing to PPA in respect of those Goods or otherwise. The Customer acknowledges receipt of these Standard Terms of Trade and agrees that it will execute all documents required by PPA to maintain, register and enforce PPA’s security interest in respect of the Goods.

7.2 The Customer grants to PPA a security interest in the Goods, any after-acquired Goods and any proceeds from any such Goods as security for all amounts owing to PPA and the performance of the Customer’s obligations under these Standard Terms. This is a continuing security. 

7.3 The Customer acknowledges that PPA may register a financing statement in respect of the security interest created by these Standard Terms under the Personal Property Securities Act 1999 (PPSA). If PPA does so the Customer waives its rights to receive a copy of the verification statements in terms of section 148 of the PPSA and also waives its rights under sections 121 and 131 of the PPSA. PPA and the Customer also contract out of Part 9 of the PPSA to the extent that the rights and obligations contained in sections 114(1)(a), 125, 126, 129, 132, 133 and 134 of that part of the PPSA do not apply as between PPA and the Customer.

7.4            The Customer agrees that:

  1. a) PPA shall have the right to demand the return of Goods at any time prior to payment. If the Customer fails to deliver the Goods to PPA, PPA may, without notice, enter any premise occupied by the Customer and repossess Goods and may resell all or any of them without being liable in any way to the Customer or any person claiming through the Customer.
  1. b) The Customer will hold the proceeds of the sale or other disposition of Goods in trust for PPA and shall remain accountable to PPA for proceeds until PPA has received payment in full. The proceeds of sale shall be held on trust for PPA immediately on receipt by the Customer.
  1. c) The Customer shall account to PPA for the full price of the Goods upon sale or disposition not withstanding any period of credit agreed.
  1. d) The Customer will insure Goods for their full replacement value and, on demand, will produce evidence of insurance to PPA. If the Customer fails to provide satisfactory evidence of such insurance, PPA may insure the Goods at the Customer’s cost.
  1. e) On damage or destruction to Goods PPA in addition to its other rights shall be entitled to receive the proceeds of insurance. Insurer shall accept production of these conditions as sufficient evidence of PPA right to receive payment without the need for further enquiry. The insurance proceeds shall be applied by PPA firstly in purchase price and secondly in payment of any debt owed by the Customer to PPA. The balance shall be paid to the Customer.

 

  1.             Termination

8.1 PPA may in addition to its other rights, terminate this contract if the Customer:

  1. a) ceases or threatens to cease carrying on business;
  2. b) becomes unable to pay its debts as they fall due or otherwise becomes insolvent or bankrupt;
  3. c) has a receiver or a receiver and manager appointed in relation to all or part of its assets, commences liquidation

or is placed in statutory management; or

  1. d) breaches any of these Terms and fails to remedy the breach within ten days of written notice requiring the breach to be remedied.

On termination, all monies will immediately become due and payable to PPA, and PPA may cancel any Order outstanding at the date of termination.

8.2 In addition to any rights, PPA may suspend the supply of Supplies to the Customer if PPA, acting reasonably considers that it is likely that the Customer may not be able to fulfil its obligations under this contract.

 

  1. Health and Safety

9.1 Where, as part of supplying the Supplies, PPA is at a worksite controlled by the Customer, PPA may suspend work if it reasonably considers that there is any risk to the health or safety of any of its officers, employees, contractors or agents. In the event that PPA suspends work pursuant to this clause:

  1. a) any timeframe for completion of the work shall be extended to take account of the suspension;
  2. b) PPA shall have no liability arising from such suspension; and
  3. c) the Customer shall pay to PPA any costs incurred by PPA as a result of such suspension, in addition to the Price.

 

  1.           Privacy Act

10.1 The Customer authorises PPA to collect, retain and use personal information about the Customer for the purposes of 

assessing, at any time, the Customer’s on-going credit-worthiness and administering the Customer’s Orders.  This authorisation continues for the duration of the relationship between the parties.

10.2 If the Customer is an individual, they may access personal information about them held by PPA and ask for that information to be corrected.

 

  1.           General

11.1 PPA shall not be liable for any failure to comply with the terms of this contract if such failure is due to circumstances beyond its reasonable control.

11.2 All intellectual property rights in the Goods are and shall remain the property of PPA. The Customer warrants that any design or drawing provided by it does not infringe any intellectual property rights of any other person.

11.3          Except as provided for in clause 1.2 and 1.3, these Standard Terms and the Order form the entire agreement between the parties. 

11.4 Any failure or delay by PPA to enforce its rights will not operate as a waiver by PPA of its right to enforce its rights under this agreement.

11.5          Any provision in this contract, which is held to be illegal, invalid or unenforceable may be severed for the contract and the remaining provision hereof shall be enforceable.

11.6          This contract is governed by the laws of New Zealand and the parties submit to the exclusive jurisdiction of the New Zealand Courts.

11.7          PPA may, at any time, amend these Standard Terms. Any such variation will apply to any Orders made, or Supplies made, after the date that PPA gives written notice of the amendment to the Customer.

11.8 This Credit Application, the Standard Terms and Conditions accepted by the Customer, and all guarantees, indemnities, acknowledgements, and authorities granted to PPA under or in connection with this application shall survive the suspension, termination, or closure of the credit account for any reason, and shall remain in full force until all monies owing to PPA, whether incurred before or after such suspension or closure, have been paid in full and all obligations have been fully performed.