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TERMS AND CONDITIONS OF TRADE – GOODS AND SERVICES


Definitions

In these terms of trade:

“Account” means the Customer’s account with the Vendor.

“Customer” means the person or entity making the application or any person acting with
ostensible authority on behalf of the Customer.

“Goods” means goods supplied by the Vendor to the Customer at any time.

“Guarantor” means any party executing a Guarantee of the Customer's Account with the
Vendor.

“Order” or “Orders” means the order or orders of the Customer to the Vendor to supply
Goods and Services.

"PPSA" means the Personal Property Securities Act 1999.

“Services” means services supplied by the Vendor to the Customer at any time.
“Vendor” means Enhance Technology Limited.

Orders


(a)  Orders will be on such forms as the Vendor may require from time to time.

(b)  Any Orders for Goods and/or Services will be supplied only on these Terms and

Conditions of Trade and any additional terms specified in any quotation provided by
the Vendor and accepted by the Customer. No other terms and conditions
(including any contained in your Order or other documentation provided by you)
will apply unless the Vendor expressly agrees in writing to those terms and
conditions.

(c)  The Vendor may at any time refuse an Order by the Customer or decline to approve
any application by the Customer for any reason whatsoever.

Acceptance

(a) Each Order shall constitute acceptance by the Customer of these Terms and
Conditions of Trade.

Prices


(a)  Prices are subject to change without notice.

(b)  All Orders will be charged at:


(i)  the price agreed between the Vendor and Customer (by your acceptance of our
quotation or otherwise) when the Order was made; or

(ii)  if no price was agreed when the Order was made, prices prevailing at the date
of delivery of the Goods and Services.

(c)  Despite Clause 4(b)(i), the Vendor may increase any agreed price for Goods and
Services by the amount of any increase in the Vendor’s cost which is beyond the Vendor’s
control, between the date the price was agreed and the date of delivery of the Goods
and Services.

(d)  Unless expressly included in any quotation given by the Vendor, Goods and Services
Tax and other taxes and duties assessed or levies in connection with the supply of the
Goods and Services to the Customer are not included in the price and shall be the
responsibility of the Customer or, where the payment of such taxes or duties is the
responsibility of the Vendor at law, and the price shall be increased by the amount of
such taxes or duties.

Delivery


(a)  Where the Order makes provision for delivery then delivery shall take place at the
place stated in the Order.

(b)  If no place is indicated, then delivery shall be made at the physical address of the
Customer set out in the application.

(c)  Delivery of Goods by the Vendor to a carrier is deemed to be delivery to the
Customer.

(d)  If the Customer fails or refuses to accept delivery, then the Goods and Services are
treated as having been delivered on the date the Vendor was willing to deliver them.

(e)  If the Customer is not in a position to accept or take delivery of the Goods or
accept provision of the Services as scheduled, the Customer shall be responsible
for all additional charges caused thereby.

Access for Installation and Provision of Services


(a)  The Customer shall provide for the purposes of installation and provision of
Services at no cost to the Vendor, all necessary facilities including power,
lighting, unloading, hoisting and lifting facilities, labour, site preparation and
employee amenities which comply with the statutory requirements.

(b)  Upon the Vendor delivering Goods or providing Services to the Customer , the
Customer shall ensure adequate safe storage facilities are provided for
protection against theft and damage of the Goods or any equipment or other
items belonging to the Vendor at no cost to the Vendor.

(c)  The Customer acknowledges that it solely shall be responsible for arranging and
providing convenient access for the Goods and provision of Services to the
proposed place of installation including but not limited to access thereto by way
of stairs, lift or crane as the case may require.

(d)  If the Customer fails to supply convenient access as aforesaid for any reason,
then the Vendor may make a further charge to the Customer to cover the
additional costs it incurs arising from such failure as the Vendor considers
reasonable.

(e)  Where installation or supply of the Goods or provision of the Services is required
of the Vendor by the Customer and installation or supply is required to be co-
ordinated with other trades the Customer shall provide the Vendor with a
schedule detailing all relevant information relating to installation or supply with
sufficient time allowed for the Vendor to meet delivery or supply dates.

(f)  The delivery or supply period shall be extended to cover delays caused by
strikes, lockouts, prohibitions, non-availability of materials or any circumstances
beyond the Vendor's control.

Health and Safety in Employment Act 1992


(a)  The Vendor shall be responsible for the actions of its employees in terms of section
15 of the Health and Safety in Employment Act 1992 ("HSEA").

(b)  The Customer shall be responsible for compliance with the HSEA in respect of the
Customer's site and shall advise the Vendor prior to commencement of any work of
any hazards on the Customer's site.

Time of Performances


(a)  Time shall in no case be of the essence in respect of the delivery of Goods or the
provision of Services.

(b)  The Vendor shall not be responsible for any delay in the delivery of Goods or the
provision of Services and the Customer shall not be entitled to cancel orders because
of any such delay.

(c)  Dates for delivery of Goods and provision of Services are given in good faith and are
not to be treated as a condition of sale or purchase.

Terms of Payment


(a)  Unless otherwise specified, payment for all Goods and Services shall be made within
10 working days from the date of invoice. .

(b)  The existence of an account by the Customer with the Vendor does not
automatically entitle the Customer to credit in thefuture.

(c)  An administration fee may be charged on all overdue amounts in addition to any
other charges pursuant to this clause.

(d) Interest will accrue on all amounts overdue at the rate of 2.5% per month and will
be calculated on a day by day basis until payment is made in full.

(e) All costs of or incurred by the Vendor as a result of a default by the Customer
including but not limited to administration charges, debt collections costs and legal
costs as between solicitor and client shall be payable by the Customer.

(f) If the Customer defaults in any payment or commits any act of bankruptcy or any
act which would render it liable to be wound up or if a resolution is passed or
proceedings are filed for the winding up of the Customer or if a receiver is appointed
for all or any assets of the Customer, the Vendor may cancel any Order without
prejudice to any other rights it may have and payment for all completed Orders shall
immediately become due.

10. Quotation

(a) Where a quotation is given by the Vendor for the supply of Goods and Services:


(i)  unless otherwise agreed the quotation shall be valid for thirty (30) days from

the date of issue;

(ii)  the quotation shall be exclusive of Goods and Services Tax unless specifically

stated to the contrary;

(iii)  the Vendor reserves the right to alter the quotation because of circumstances

beyond its control.

11. Payment Allocation


(a)  The Vendor may in its discretion allocate any payment received from the Customer
towards any invoice that the Vendor determines and may do so at the time of receipt
or at any time afterwards.

(b)  On any default by the Customer the Vendor may re-allocate any payments previously
received and allocated.

(c)  In the absence of any payment allocation by the Vendor, payment shall be deemed
to be allocated in such manner as preserves the maximum value of the Vendor's
purchase money security interest in the products.

12. Errors or Omissions

(a) Clerical errors or omissions, whether in computation or otherwise in the quotation,
acknowledgement or invoice shall be subject to correction.

13. Risk


(a)  From the time of dispatch to the Customer by the Vendor, risk in all Goods supplied
shall pass to the Customer and any loss, damage or deterioration to the Goods shall
be borne by the Customer.

(b)  The Customer shall notwithstanding any loss, damage or deterioration to the Goods
remain liable to pay for the Goods.

14. Ownership of Goods/General Lien

(a) The Vendor shall retain ownership of all Goods supplied until it receives payment in
full of all amounts owing by the Customer for all Orders.

(b) Subject to clause 25, until payment is made by the Customer, the Customer agrees:
(i) to enable the Goods to be readily identifiable as the property of the Vendor;

(ii) to keep the goods in good order and condition and properly stored, protected and

insured; and

(iii) to hold the Goods as trustee for the Vendor and will deal with the Goods as

agent for or on behalf of the Vendor (and will not hold the Vendor out as an

agent to any third parties); and

(iv) that any money received by the Customer from an insurance claim made in respect

of loss of or damage to the Goods will be held on trust for the Vendor.

(c) If any of the Goods are attached, fixed or incorporated into any other goods,
including any property of the Customer, ownership in the whole of the other goods
shall be and remain with the Vendor until payment is made, as security for the full
satisfaction by the Customer of the full amount owing by the Customer to the
Vendor. The Vendor’s Security Interest in the Goods shall continue in the terms of

section 82 of thePPSA.

(d) The Vendor shall have a right to stop and retrieve the Goods in transit whether or

not ownership has passed.

15. Authority to Sell Goods and Services Supplied

(a) Notwithstanding that title in all Goods and Services is retained by the Vendor, the
Customer is authorised to sell the Goods and Services in the ordinary course of
business provided that the authority:


(i)  may be removed by written notice if the Vendor considers the credit of the

Customer to be unsatisfactory or if the Customer is in default in the performance

of its obligations to the Vendor; and

(ii)  shall be deemed automatically revoked if the Customer commits any act of

bankruptcy or any act which would render it liable to be wound up or if a
resolution is passed or proceedings are filed for the winding up of the Customer
or a receiver is appointed for all or any assets of the Customer.

(b) Where Goods and Services in respect of which property has not passed to the
Customer are sold by the Customer in the ordinary course of business:

(i) the book debt created on the sale and the proceeds of sale when received shall

be held by the Customer for the Vendor in terms of section 45 of the PPSA;

and/or

(ii) the Customer will hold the proceeds of sale on trust for the Vendor.

(c) Where any payments are made from the Customer’s bank account otherwise than to
the Vendor payment shall be deemed to have been made from all other funds in the
Customer’s bank account and not from funds held on trust for the Vendor.

(d) The trust obligation imposed by this clause and the Vendor’s entitlements under the
PPSA shall continue for so long as the Vendor is unpaid for all Goods and Services
supplied to the Customer.

16. Export Prohibition

(a) The Goods provided pursuant to these Terms and Conditions of Trade are sold for
use in New Zealand only and are not to be exported elsewhere, directly or indirectly,
without prior agreement of the Vendor.

(b) In the event that the Vendor consents to the export of the Goods the Customer is
responsible for all costs and compliance with any export regulations in force within
the country for which the Goods are destined.

17. Recovery of Goods


(a)  In the event of non-payment or if payment of the Customer’s Account is overdue
the Vendor or its agents shall be entitled without prejudice to any right it has at law
or in equity to enter the place where the Goods are stored, whether the Customer’s
premises or property or the premises or property of a third party, for the purpose
of recovering and taking possession of the Goods supplied.

(b)  The Customer warrants to the Vendor that where the Goods are stored on the
premises or property of a third party, the Customer is acting as agent for the third
party and has the full authority of the third party to authorise, and does hereby
irrevocably authorise, entry on to the premises or property of the third party for the
purpose of recovering the Goods supplied, without releasing the Customer from
liability .

(c)  The Vendor will not be responsible for any damage reasonably caused in the course
of removal of Goods supplied either in the possession of the Customer or a third
party and the Customer indemnifies the Vendor to the full extent in respect of
damage caused in the course of removal from the property of a third party.

(d)  The Vendor may resell the Goods and apply the proceeds towards payment of the
Customer’s outstanding Account with the Vendor. Any shortfall will remain the


© Enhance Technology 2019



liability of the Customer. The Customer indemnifies the Vendor for all costs and
expenses, including but not limited to debt collection agency costs, instruction of
barristers, enforcement costs and legal costs as between solicitor and client which
the Vendor may incur in recovering the Goods and any monies owed toit.

18. Suitability of Goods and Services


(a)  The Customer will satisfy itself that the Goods and Services as ordered are fit and
suitable for the purpose for which they are required.

(b)  The Customer accepts all risk and responsibility for consequences arising from the
use of the Goods and Services whether singularly or in combination with other Goods
and Services.

19. Warranties


(a)  Unless otherwise specified, the Vendor gives no warranty, condition or
representation express or implied as to the quality, description or fitness for any
particular purpose of the Goods and Services.

(b)  Where applicable, manufacturer’s warranties will attach to theGoods.

(c)  Where applicable, the Vendor guarantees workmanship for a period of one (1) year

following supply.

(d)  Where the Consumer Guarantees Act 1993 applies the Customer shall have all the

rights and remedies provided under this Act but no others. The Customer warrants
to the Vendor that any Goods and Services supplied by the Vendor under any order
with the Vendor are being acquired by the Customer for the purpose of its business
and the Consumer Guarantees Act 1993 does not apply to the supply of those
Goods and Services.

(e)  Where Goods supplied are defective in terms of any condition warranty or
guarantee or otherwise do not conform to the Order, the Vendor will at its
discretion replace or repair any faulty Goods or pay the cost of replacing them, but
only if a claim is made by the Customer within seven days of delivery of the Goods
time being of the essence.

20. Compliance

(a) The Customer shall be solely responsible for obtaining any necessary permits under
and for compliance with all legislation, regulations, by-laws or rules having the force
of law in connection with the installation operation and provision of the Goods and
Services.

21. Cancellation

(a) The Customer shall not be entitled to cancel an Order other than as allowed
pursuant to these Terms and Conditions of Trade.

22. Returns

(a) The Customer shall not be entitled to return Goods or cancel an Order other than
as allowed pursuant to these Terms and Conditions of Trade.


Personal Property Securities Act 1999


(a)  The Customer hereby acknowledges that these Terms and Conditions of Trade
constitute a security agreement which creates a security interest in favour of the
Vendor in all Goods and Services previously supplied by the Vendor to the
Customer (if any) and all after acquired Goods and Services supplied by the Vendor
to the Customer (or for the Customer's account) to secure the payment from time
to time and at a time, including future advances. The Customer agrees to grant a
"purchase money security interest" to the Vendor, as that term is defined in the
PPSA.

(b)  The Customer acknowledges and agrees that by assenting to these terms the
Customer grants a security interest (by virtue of the retention of title clause in
these Terms and Conditions of Trade) to the Vendor and all Goods and Services
previously supplied by the Vendor to the Customer (if any) and all after-acquired
Goods and Services supplied by the Vendor to the Customer (or for the Customer's
account) and these terms shall apply notwithstanding anything express or implied
to the contrary contained in the Customer's purchaseorder.

(c)  The Customer undertakes to:


(i)  sign any further documents and/or provide any further information (which

information the Customer warrants to be complete, accurate and up-to-date in
all respects) which the Vendor may reasonably require to enable registration
of a financing statement or financing change statement on the Personal
Property Securities Register (“PPSR”).

(ii)  not register a financing change statement as defined in section 135 of the PPSA
or make a demand to alter the financing statement pursuant to section 162 of
the PPSA in respect of the Goods without the prior written consent of the
Vendor;

(iii)  give the Vendor not less than 14 days' prior written notice of any proposed
change in the Customer's name and/or any other changes in the Customer's
details (including but not limited to changes in the Customer's address,
facsimile number, email address; trading name or business practice);

(iv)  pay all costs incurred by the Vendor in registering and maintaining a financing
statement (including registering a financing change statement) on the PPSR
and/or enforcing or attempting to enforce the security interest created by these
Terms and Conditions of Trade including executing subordination agreements;

(v)  be responsible for the full costs incurred by the Vendor (including actual legal
fees and disbursements on a solicitor/client basis) in obtaining an order
pursuant to section 167 of the PPSA; and

(vi)  the Customer waives any rights it may have under sections 116, 119, 120(2),
121, 125, 126, 127, 129, 131 and 132 of the PPSA upon enforcement.

(d)  Pursuant to section 148 of the PPSA, unless otherwise agreed to in writing by the
Vendor, the Customer waives the right to receive the verification statement in
respect of any financing statement or financing change statement relating to the
security interest.

(e)  To the maximum extent permitted by law, the Customer waives its rights and, with
the Vendor's agreement, contracts out of its rights under sections referred to in
sections 107(2), 8(e) and (g) to (l) of the PPSA.

(f)  The Customer agrees that nothing in section 113, 114(1)(a), 117(1)(c), 133 and
134 of the PPSA shall apply to these terms, and, with the Vendor's agreement,
contracts out of such sections.

(g)  The Customer and the Vendor agree that section 109(1) of the PPSA is contracted
out of in respect of particular Goods and Services if and only for as long as the
Vendor is not the secured party with priority over all other secured parties in respect
of those Goods and Services.

(h)  The Customer agrees that immediately on request by the Vendor the Customer will
procure from any persons considered by the Vendor to be relevant to its security
position such agreement and waivers as the Vendor may at any time require.

Other Security


(a)  The Customer gives the Vendor a Security Interest in all of the Customer’s present
and after-acquired property that the Vendor has performed services on or to or in
which goods or materials supplied or financed by the Vendor have been attached or
incorporated.

(b)  Without prejudice to such other rights as the Vendor may have pursuant to these
Terms and Conditions of Trade, the Vendor reserves the right to request from the
Customer such security as the Vendor may from time to time think desirable to
secure to the Vendor all sums due to the Vendor and may refuse to supply further
Goods and Services to the Customer until such security is given.

Events of Default

(a) All payments shall become immediately due to the Vendor and the Vendor may at its
option suspend or terminate these Terms and Conditions of Trade and/or exercise any
of the remedies available to it under these Terms and Conditions of Trade in the event
that:


(i)  a receiver is appointed over any of the assets or undertaking of the Customer;

(ii)  an application for the appointment of a liquidator is filed against the Customer
which remains unsatisfied for a period of 10 days, or any of the conditions
necessary to render the Customer liable to have a liquidator exist, or a liquidator

is appointed;

(iii)  the Customer goes into voluntary liquidation, amalgamates with another

company or acquires its own shares in accordance with the Companies Act 1993;

(iv)  the Customer suspends payments to its creditors or makes or attempts to make

an arrangement or composition or scheme with its creditors;or

(v)  the Customer becomes insolvent within the meaning of the Insolvency Act 1967
or is, becomes, or is presumed to be unable to pay its debts as they fall due as

defined in section 287 of the Companies Act 1993 or section 261 of the
Companies Act 1955; or commits any act of bankruptcy.

26. Liability


(a)  The Vendor’s liability to the Customer shall be limited to the value of the Order
supplied and paid for.

(b)  The Contract and Commercial Law Act 2017, the Fair Trading Act 1986 and other
statutes may imply warranties or conditions or impose obligations upon the Vendor
which cannot by law (or which can only to a limited extent by law) be excluded or
modified. In respect of any such implied warranties, conditions or terms imposed on
theVendor the Vendor’s liability shall, where it is allowed, be excluded or if not able
to be excluded only apply to the minimum extent required by the relevant statute.

(c)  Except as otherwise provided above the Vendor shall not be liable for any loss or
damage of any kind whatsoever, arising from the supply of Goods and Services by
the Vendor to the Customer including consequential loss whether suffered or incurred
by the Customer or another person and whether in contract or tort (including
negligence) or otherwise and irrespective of whether such loss or damage arises
directly or indirectly from Goods and Services provided by the Vendor to the
Customer.

(d)  The Customer shall indemnify the Vendor against all claims and loss of any kind
whatsoever however caused or arising and without limiting the generality of the
foregoing of this clause whether caused or arising as a result of the negligence of
the Vendor or otherwise, brought by any person in connection with any matter, act,
omission, or error by the Vendor its agents or employees in connection with the
Goods and Services.



Copyright and Intellectual Property


(a)  Unless it is specifically agreed in writing to the contrary, the Vendor retains all
intellectual property rights, including copyright, patents, registered designs, and all
protection of confidential information in respect of any Goods and Services provided
by the Vendor for/to the Customer.

(b)  The Customer will at all times keep the Vendor advised of any infringement or
potential infringement by a third party of the Vendor's intellectual property rights.

(c)  The Customer will immediately advise the Vendor of any alleged infringement by
the Vendor of a third party's intellectual property rights. The Customer will indemnify
and hold harmless the Vendor against any losses, costs, actions or liabilities suffered
or incurred as a consequence of such infringement or alleged infringement.

(d)  The Vendor owns and has copyright in all designs, specifications, documents, and
software produced by the Vendor in connection with the Goods provided pursuant
to these Terms and Conditions of Trade and the client may use the Goods only if
paid for in full and for the purpose for which they were intended and supplied by the
Vendor.

Dimensions and Specifications


(a)  Dimensions and specifications contained or referred to in any Order, catalogues,
brochure or other publications maintained or issued by the Vendor are estimates
only.

(b)  Unless otherwise expressly agreed in writing, it is not a condition of these Terms
and Conditions of Trade or any Order that the Goods and Services will correspond
precisely with such dimensions and specifications and customary tolerances or in
the absence of customary tolerances, reasonable tolerances shall be allowed.

Personal Guarantee of Company Directors or Trustees


(a)  If the Customer is a Company or Trust, the Director(s) or Trustee(s) signing this
contract, in consideration for the Vendor agreeing to supply Goods and Services and
grant credit to the Customer at their request, also sign this contract in their personal
capacity and jointly and severally personally guarantee as principal debtors to the
Vendor the payment of any and all moneys now or hereafter owed by the Customer
to the Vendor and indemnify the Vendor against non-payment by the Customer.

(b)  Any personal liability of a signatory hereto shall not exclude the Customer in any
way whatsoever from the liabilities and obligations contained in these Terms and
Conditions of Trade. The signatories and the Customer shall be jointly and severally
liable under these Terms and Conditions of Trade and for payment of all sums due
hereunder.

30. Assignment


(a)  The Customer shall not assign all or any of its rights, obligations, or benefits of the
warranties under this contract without the written consent of the Vendor.

(b)  The Vendor is entitled at any time to assign to any other party all or any part of a
debt which is owing to the Vendor.

(c)  The Vendor may also assign or sub-contract any part of the work which is to be
performed under any contract.

(d)  In respect of any assignment by the Vendor pursuant to this clause, the Assignee
shall be entitled to the full rights of the Vendor.

31. Disputes

(a) In the event of any dispute arising between the Vendor and the Customer, such
dispute shall in the first instance be referred to mediation for resolution.

(b) In the event that resolution by mediation is not achieved to the satisfaction of both
parties within 30 days of referral to mediation, either party may then take legal
action to resolve the dispute.

(c) Nothing in this clause prevents the Vendor from taking legal action to enforce
payment of any debt due, nor where required to seek interlocutory or injunctive
relief.

32. Force Majeure

(a) The Vendor is not liable to the Customer for any breach of this Agreement by any
extraordinary occurrences which are beyond its reasonable control.

33. General Terms and Conditions


(a)  These Terms and Conditions of Trade constitute the entire agreement and supersede
and extinguish all prior agreements and understandings between the Vendor and
the Customer.

(b)  If any provision of this contract shall be invalid, void or illegal or unenforceable the
validity existence, legality and enforceability of the remaining provisions shall not
be affected, prejudiced or impaired.

(c)  The Vendor may from time to time by written notice to the Customer amend, add
to or repeal the trading conditions covered by this Agreement or may substitute any
fresh trading conditions and such amendment, addition or substitute trading


© Enhance Technology 2019



conditions shall be binding on the Customer fourteen days after the date of delivery

of the notice.


(d)  Failure by the Vendor to enforce any of the terms and conditions contained in these

Terms and Conditions of Trade shall not be deemed to be a waiver of any of the

rights or obligations the Vendor has under these Terms and Conditions of Trade.

(e)  If there is inconsistency between these Terms and Conditions of Trade and any
order submitted by the Customer or any other arrangement between the Vendor
and Customer, these Terms and Conditions of Trade prevail unless otherwise

agreed in writing by the parties.

(f)  All notices required or committed under these Terms of Trade are to be served as

provided in section 152 of the Property Law Act 1952, or by facsimile, in which

case notice is deemed to be given the day after sending.

(g)  These Terms and Conditions of Trade will be interpreted in accordance with and

governed by the laws of New Zealand and the New Zealand Courts will have

exclusive jurisdiction over any dispute in relation to the Goods and Services.

34. Electronic Signatures & Document Transmissions

(a) Electronic Signatures: The Customer (and their witness) may sign an agreement with
the Vendor using an electronic signature as allowed under sections 22 and 23 of the
Electronic Transactions Act 2002.

(b) Execution in Counterpart: These Terms and any agreement between the Customer
and the Vendor may be executed in counterparts (including by facsimile or PDF
transmission) each of which is deemed to be an original.

(c) Electronic document transmissions: EDT (Electronic document transmissions) shall be
deemed valid and enforceable regarding any provisions of this Agreement. A Party to
these Terms and any agreement between the Customer and the Vendor may request
hard copy of any document previously transmitted by electronic means provided
however, that any such request shall in no manner delay the parties from performing
their respective obligations and duties under EDT instruments.


© Enhance Technology 2019 

 

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