STANDARD TERMS AND CONDITIONS
PACE ENGINEERING LTD / PACE POWER & AIR (a Division of Pace Engineering Ltd)
STANDARD TERMS
- Terms of Supply
1.1. The Standard Terms set out below (Standard Terms) apply to every supply of goods (Goods) and/or services (with Goods and services together being, Supplies) made by PEL to the Customer. By placing an order for Supplies with PEL, 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 PEL has agreed in writing to such variation or other terms.
1.2. Where the Customer has entered into a separate written supply agreement with PEL, 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 PEL 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 PEL 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 PEL 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 will not apply to this transaction.
1.6. The liability of PEL in respect of all claims for loss, damage or injury arising from a breach of any of PEL’s obligations under these Standard Terms, or from any act or omission of PEL is limited, in each case, to the lesser of:
(a) replacement or repair of the affected Goods;
(b) payment of the actual cost of replacing or repairing the affected Goods; or
(c) the price of the affected Supplies.
1.7. Except as provided for in clause 1.6, PEL 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 PEL.
1.8. PEL will not be liable in respect of Goods that have been tampered with or modified without PEL’s approval or which have been stored in an improper manner.
- Orders
2.1. All Orders must be in writing or if made by telephone, confirmed in writing.
2.2. All quotes, estimates and pricing, unless expressly stated otherwise, are deemed to be estimates only and are based on rates and charges in effect at the date of issue. Any increase in the costs of any items (including change in currency exchange rates) affecting the cost of supply, production and/or delivery of the Supplies will be added to the price of the Supplies payable by the Customer. PEL reserves the right to withdraw a quote at any time.
2.3. The Customer is solely responsible for the accuracy of plans, specifications and information supplied by (or on behalf of) the Customer upon which a quotation/estimate/order is based.
- Prices
3.1. All prices are exclusive of Goods and Services Tax, other taxes and levies, and transport or insurance charges unless specifically stated otherwise.
- 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 tax invoice. PEL 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 tax invoice. If the Customer disputes any part of an invoice, it must notify PEL 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. Payment of all monies owing to PEL must be made free of any counterclaim, set-off, deduction or other claim whatsoever. PEL may deduct or withhold any amount (whether by way of set off, counterclaim or other equitable or lawful claim or otherwise) from any money owing by PEL to the Customer on any account whatsoever.
4.3. If any amount owing by the Customer to PEL is overdue, or if the Customer is otherwise in default under these terms, all amounts owing to PEL will immediately become due and payable and PEL may (without prejudice to its other remedies):
(a) withhold supply of Supplies (not withstanding any contract to supply);
(b) delay delivery of any Supplies.
4.4. The Customer shall, at PEL’s discretion, pay interest on any overdue amounts owing to PEL from the date payment was due until the date that actual payment is received at the rate of 20% per annum, calculated on a daily basis and compounding monthly. The payment of default interest is without prejudice to any other rights or remedies PEL may have.
4.4. The Customer indemnifies PEL against costs of recovery of monies, goods or services which are outstanding pursuant to these Terms. Such costs include, but are not limited to, legal fees (on a solicitor-own client basis), debt collection fees and out of pocket expenses in recovery.
4.5 PEL may withdraw, suspend or alter the Customer’s credit facilities at any time without notice, at its sole discretion. Any such change to the Customer’s credit facilities will not release either the Customer or the Guarantor(s) from any liability whatsoever.
- Risk and Delivery
5.1 Risk in Goods shall pass to the Customer on delivery. Delivery shall be completed when possession of the Goods is transferred to the Customer (or its representative or carrier) at the place specified on the Order, or as otherwise agreed by PEL.
5.2 PEL 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. PEL may deliver Goods by instalment. Each instalment shall be treated as a separate contract subject to these Standard Terms.
5.5 If the Customer collects the Goods from PEL, it warrants that it will comply with all PEL health and safety requirements, and other site access requirements.
- Discrepancies & Return
6.1 The Customer will be deemed to have accepted the Supplies unless it gives PEL written notice of any defect or error within seven days of delivery of Goods, or, in the case of services, within seven days of the supply.
6.2. If the Goods conform to the contract or are rejected without proper cause, PEL shall not be obliged to accept return of Goods for credit. If PEL does accept Goods returned for credit, the Customer shall pay a restocking fee of 15% of the price of the Goods.
- Ownership of Goods
7.1. Ownership of the Goods shall not pass to the Customer until the Customer has paid all amounts outstanding to PEL (whether in connection with the Goods or otherwise) and all other obligations of the Customer to PEL have been met.
7.2. Until ownership of the Goods passes to the Customer, the Customer must:
(a) hold the Goods on trust for PEL as bailee;
(b) store the Goods safely and in such a way that clearly identifies the Goods as the sole property of PEL;
(c) not relinquish possession or remove the Goods from the Customer’s premises;
(d) only use or sell the Goods in the ordinary course of business;
(e) insure the Goods against all usual risks for full replacement value. Any insurance claims in respect of damage to, or destruction of, the Goods are hereby assigned by the Customer to PEL. On damage or destruction to Goods, PEL, in addition to its other rights, shall be entitled to receive the proceeds of insurance. The insurer shall accept production of these Terms as sufficient evidence of PEL’s right to receive payment without the need for further enquiry. The insurance proceeds shall be applied by PEL firstly in payment of the purchase price and secondly in payment of any debt owed by the Customer to PEL. The balance shall be paid to the Customer;
(f) not do or allow to be done anything that might contribute to a deterioration in the value of the Goods or otherwise adversely affect PEL’s security in the Goods.
7.3 The Customer will hold the proceeds of the sale or other disposition of Goods in trust for PEL and shall remain accountable to PEL for proceeds until PEL has received payment in full. The Customer further agrees that it shall account to PEL for the full price of the Goods upon sale or disposition not withstanding any period of credit agreed.
7.4. The Customer agrees that the retention of title in clause 7.1 creates a security interest in the Goods in favour of PEL, and the proceeds of them, as security for all amounts owing to PEL and the performance of the Customer’s obligations under these Standard Terms. The Customer acknowledges that the security interest is a Purchase Money Security Interest (PMSI) (as defined in the Personal Property Securities Act 1999 (PPSA)) in the Goods and proceeds of them. The Customer further agrees that the PMSI has attached to all Goods supplied by PEL to the Customer, whether now or in future, and that the attachment of the PMSI has in no way been deferred or postponed from the date of this Agreement.
7.5. The Customer acknowledges receipt of these Standard Terms and agrees that it will execute all documents required by PEL to maintain, register and enforce PEL’s security interest in respect of the Goods. The Customer further agrees that it will meet all PEL’s costs in connection with the registration, maintenance and enforcement of PEL’s security interest.
7.6. Each security interest created under these Standard Terms is a continuing security, notwithstanding any intermediate payments or settlements of accounts or anything else and is in addition to, and is not to be merged with, any other security or guarantee expressed or intended to be security for any monies owing by the Customer to PEL or any other obligations owing by the Customer to PEL.
7.7 If the Goods are attached, fixed, or incorporated into any property of the Customer by way of any manufacturing or assembly process, whether by the Customer or any third party, ownership in the Goods shall remain with PEL until the Customer has made payment for all Goods. Where those Goods are mixed with other property so as to be part of any new goods, ownership to these new goods shall be deemed to be assigned to PEL as security for the full satisfaction by the Customer of the full amount owing to PEL by the Customer.
7.8. If PEL registers the security interest created by these Standard Terms under the PPSA, the Customer:
(a) waives its rights to receive a copy of any verification statements, financing statement or financing change statement (as those terms are defined in the PPSA);
(b) waives its rights under (or by reference to) sections 114(1)(a), 116, 120(2), 121, 125, 129, 131, 133 and 134 of the PPSA;
(c) agrees that, to the extent permitted by law, these Standard Terms exclude any other provisions of the PPSA which may be excluded in PEL’s discretion and which would otherwise confer rights on the Customer; and
(d) agrees that where PEL has rights in addition to those in Part 9 of the PPSA, those rights will continue to apply.
7.9. The Customer agrees that PEL shall have the right to demand the return of Goods at any time prior to payment if the Customer is in default of its obligations or if PEL deems that the Goods are at risk. If the Customer fails to deliver the Goods to PEL, PEL 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.
- Termination
8.1. PEL may, in addition to its other rights, terminate this contract if:
(a) the Customer ceases or threatens to cease carrying on business;
(b) the Customer becomes unable to pay its debts as they fall due or otherwise becomes insolvent or bankrupt;
(c) the Customer has a receiver or manager appointed in relation to all or part of its assets, commences liquidation or is placed in statutory management;
(d) the Customer has any Goods seized or repossessed, or receives an intimation that Goods will be seized or repossessed by any creditor;
(e) there is a material adverse change in the financial circumstances of the Customer; or
(f) the Customer fails to pay any amount owing to PEL by the due date; or
- g) the Customer otherwise breaches any of these Standard 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 PEL, and PEL may cancel any Order outstanding at the date of termination. Further, PEL may enforce all the rights available to it under these Standard Terms at the cost, risk and responsibility of the Customer.
- Indemnity
9.1. The Customer hereby indemnifies PEL (including its employees, officers and agents) against all losses, liabilities, damages, claims, actions costs or expenses (including legal costs and expenses on a solicitor-own client basis) that PEL may incur, of which have been made against PEL as a result of or in relation to:
(a) any act, omission, default by the Customer or any subsequent purchaser of the Goods;
(b) any breach of the Customer’s obligations under these Standard Terms;
(c) anything done or omitted to be done, or purported to be done or omitted by PEL in the exercise or purported exercise of its rights under these Standard Terms or conferred by law (and whether or not arising by reason of mistake, oversight, negligence or error of judgment);
(d) any liability, loss or expense arising out of PEL’s security interest in any of the Goods, or any act or omission of the Customer in respect of any circumstance that breaches or might breach any environmental law.
- Privacy Act
10.1. The Customer authorises PEL to collect, retain and use personal information about the Customer for the purposes of assessing, at any time, the Customer’s on-going creditworthiness and administering the Customers’ Orders. This authorisation continues for the duration of the relationship between the parties.
10.2. If the Customer is an individual, he or she may access personal information about himself or herself held by PEL and ask for that information to be corrected.
- General
11.1. PEL 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. The Customer acknowledges that PEL does not, by any supply of Supplies, transfer any intellectual property rights in any Supplies. 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 PEL to enforce its rights will not operate as a waiver by PEL of its right to enforce its rights under this contract.
11.5. Any provision in this contract that 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. PEL may, at any time, amend these Standard Terms. Any such variation will have immediate effect on being published on PEL’s website or otherwise communicated to the Customer.
11.8 Any Guarantor of a Customer’s obligations under these Standard Terms is liable to PEL as a principal debtor and as if the Guarantor were the Customer. If there is more than one Guarantor, the liability of the Guarantors is joint and several.
