STANDARD TERMS AND CONDITIONS
PACE ENGINEERING LTD/ PACE POWER & AIR (a Division of Pace Engineering Ltd)
1. Terms of Supply
1.1 These Standard Terms and Conditions set out below (Standard Terms) apply to every supply of goods made by PEL/PPA to the Customer (Goods). By placing an order for Goods with PEL/PPA, accepting a quote, or otherwise entering into an agreement to purchase Goods (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/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 PEL/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 PEL/PPA in a quote or Order. A Customer’s acceptance of a quote constitutes an agreement to purchase Goods 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/PPA regarding the Goods 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 Goods 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/PPA accepts no liability in respect of such guarantees.
1.5 The Customer agrees that the Goods 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/PPA in respect of all claims for loss, damage or injury arising from a breach of any of PEL/PPA’s obligations under these Standard Terms, or from any act or omission of PEL/PPA 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 Goods.
1.7 Except as provided for in clause 1.6, PEL/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 Goods by PEL/PPA.
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. PEL/PPA reserves the right to withdraw a quote at any time. The Customer agrees that PEL/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.
Deposit on accepted Quotes may be applicable at time of Acceptance.
3.1. All prices are exclusive of Goods and Services Tax, other taxes and levies, and transport or insurance changes unless specifically stated otherwise.
4.1. Unless otherwise specified, Goods must be paid for in full, by the 20th of the month following the receipt of a valid invoice. PEL/PPA reserves the right to claim progress payments in connection with any supply of Goods, 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 PEL/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. PEL/PPA may withhold supply of Goods (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 PEL/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.
5. 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 PEL/PPA.
5.2 PEL/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. PEL/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 PEL/PPA, it warrants that it will comply with all PEL/PPA health and safety requirements, and other site access requirements.
6. Discrepancies & Return
6.1 The Customer will be deemed to have accepted the Goods unless it gives PEL/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, PEL/PPA shall not be obliged to accept return of Goods for credit. If PEL/PPA does accept Goods returned for credit, the Customer shall pay a restocking fee of 15% of the price of the Goods.
7. Title to Goods
7.1. Title in the Goods shall remain with PEL/PPA until there are no longer any amounts owing to PEL/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 PEL/PPA to maintain, register and enforce PEL/PPA’s security interest in respect of the Goods.
7.2 The Customer grants to PEL/PPA a security interest in the Goods and the proceeds from them as security for all amounts owing to PEL/PPA and the performance of the Customer’s obligations under these Standard Terms.
7.3 If PEL/PPA registers the security interest created by these Standard Terms under the Personal Property Securities Act 1999 (PPSA), 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. PEL/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, 125, 129, 132, 133 and 134 of that part of the PPSA do not apply as between PEL/PPA and the Customer.
7.4 The Customer agrees that:
a) PEL/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 PEL/PPA, PEL/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.
b) The Customer will hold the proceeds of the sale or other disposition of Goods in trust for PEL/PPA and shall remain accountable to PEL/PPA for proceeds until PEL/PPA has received payment in full.
c) The Customer shall account to PEL/PPA for the full price of the Goods upon sale or disposition not withstanding any period of credit agreed.
d) The Customer will insure Goods for their full replacement value and, on demand, will produce evidence of insurance to PEL/PPA. If the Customer fails to provide satisfactory evidence of such insurance, PEL/PPA may insure the Goods at the Customer’s cost.
f) On damage or destruction to Goods PEL/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 PEL/PPA right to receive payment without the need for further enquiry. The insurance proceeds shall be applied by PEL/PPA firstly in purchase price and secondly in payment of any debt owed by the Customer to PEL/PPA. The balance shall be paid to the Customer.
8.1. PEL/PPA may in addition to its other rights, terminate this contract if the Customer:
a) ceases or threatens to cease carrying on business;
b) becomes unable to pay its debts as they fall due or otherwise becomes insolvent or bankrupt;
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
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 PEL/PPA, and PEL/PPA may cancel any Order outstanding at the date of termination.
9. Privacy Act
9.1 The Customer authorises PEL/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 Customers’ Orders. This authorisation continues for the duration of the relationship between the parties.
9.2 If the Customer is an individual, they may access personal information about them held by PEL/PPA and ask for that information to be corrected.
10.1. PEL/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.
10.2 All intellectual property rights in the Goods are and shall remain the property of PEL/PPA. The Customer warrants that any design or drawing provided by it does not infringe any intellectual property rights of any other person.
10.3 Except as provided for in clause 1.3 and 1.4, these Standard Terms and the Order form the entire agreement between the parties.
10.4 Any failure or delay by PEL/PPA to enforce its rights will not operate as a waiver by PEL/PPA of its right to enforce its rights under this agreement.
10.5 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.
10.6 This contract is governed by the laws of New Zealand and the parties submit to the exclusive jurisdiction of the New Zealand Courts.
10.7 PEL/PPA may, at any time, amend these Standard Terms. Any such variation will have immediate effect.