TERMS AND CONDITIONS OF TRADE WITH HYDRAULIC SOLUTIONS SOUTHLAND

Any instructions received by Hydraulic Solutions Southland (HSS) from the customer for the supply of goods or services shall constitute acceptance of the terms and conditions contained herein. 

1. COLLECTION AND USE OF INFORMATION

1.1 The customer authorises HSS to collect, retain and use any information about the customer, or for the purpose of assessing the customer’s credit worthiness, or for enforcing any rights under this contract.

1.2 The customer authorises HSS to disclose any information obtained to any person for the purposes set out in clause 1.1.

1.3 Where the customer is a natural person, the authorities under clauses 1.1 and 1.2 are authorities or consents for the purposes of the Privacy Act 1993.

2. PRICE

2.1 Where no price is stated in writing or agreed to orally, the goods or services shall be deemed to be sold at the current amount as such goods or services are sold or provided by HSS at the time of the contract. 

2.2 Any offer to supply goods or services will remain open for a period not exceeding 30 days from the date of offer. 

2.3 The price may be increased by the amount of any reasonable increase in the cost of supply of the goods or services that is beyond the control of HSS between the date of the contract and delivery of the goods or providing of the services. 

2.4 The customer must pay the prices charged. 

2.5 All carriage and delivery charges for goods and services will be payable by the customer. 

2.6 Any quoted price for goods or services does not include costs of testing, unless specifically agreed to by HSS in writing. Where HSS is directed by the customer to test goods or services, all costs for testing will be charged to the customer. 

2.7 HSS does not guarantee that repair facilities or spare parts will be available for imported goods, unless specifically agreed by HSS in writing. 

3. PAYMENT

3.1 Unless HSS has agreed to extend credit to the customer, the customer must pay in full to HSS prior to supply of the goods or services. 

3.2 If HSS elects to extend credit under Clause 3.1 payment for goods or services is due by the 20th of the month following the date of the invoice unless otherwise arranged between the parties prior to delivery of the goods or the providing of the services (“the due date”). 

3.3 HSS may impose a credit limit on the customer and alter the credit limit without notice. Where the credit limit is exceeded, HSS may refuse to supply goods or services to the customer

3.4. HSS may notify the customer at any time that it has ceased to supply goods or services on credit to the customer. This cessation does not relieve the customer for amounts owing up to the date on which the contract was cancelled. 

3.5 Interest may be charged by HSS on any amount owing from time to time from the due date until the date of payment at 20% per annum compounding monthly. 

3.6 Any expenses, disbursements and legal costs incurred by HSS in the enforcement of any rights contained in this contract shall be paid by the customer, including any reasonable solicitor’s fees or debt collection agency fees. 

3.7 Receipt of a cheque, bill of exchange, or other negotiable instrument shall not constitute payment until such negotiable instrument is paid in full. 

3.8 HSS will apportion payments to outstanding accounts as it thinks fit.

4. RISK

4.1 The goods remain at HSS’ risk until the earlier of delivery to the customer or when title passes to the customer pursuant to clause 6.1 of this contract, at which time the goods are at the customer’s risk whether delivery has been made or not. 

4.2 Delivery of goods shall be deemed complete when HSS gives possession of the goods for delivery to the customer, or possession of the goods is given to a common carrier or other bailee for the purposes of transmission to the customer.

4.3 The time agreed for delivery shall not be an essential term of this contract unless the customer gives written notice to HSS making time of the essence. 

4.4 Where HSS delivers goods or provides services to the customer by instalments and HSS fails to deliver or supply one or more instalments the customer shall not have the right to repudiate the contract but shall have the right to claim compensation as a severable breach.

5. AGENCY

5.1 The customer authorises HSS to contract either as principal or agent for the provision of goods or services that are the matter of this contract. 

5.2 Where HSS enters into a contract of the type referred to in clause 5.1 it shall be read with and form part of this agreement and the customer agrees to pay any amounts due under that contract.

6. TITLE

6.1 If the goods are ascertained and in a deliverable state, title in the goods passes to the customer when the customer has made payment for all goods supplied by HSS. 

6.2 Where the customer has not paid for any goods in its possession property in such goods shall remain with HSS and: 

(a) The goods shall be held by the customer as bailee; and 

(b) If the goods are attached, fixed, or incorporated into any property of the customer, , or any third party, title in the goods shall remain with HSS until the customer has made payment for all goods, and where those goods are mixed with other property so as to be part of or a constituent of any new goods, title to these new goods shall deemed to be assigned to HSS as security for the full satisfaction by the customer of the full amount owing between HSS and customer.

6.3 The customer gives irrevocable authority to HSS to enter any premises occupied by the customer, at any reasonable time, to remove any goods not paid for in full by the customer. HSS shall not be liable for costs, damages or expenses or any other losses incurred by the customer or any third party as a result of this action, nor liable in contract or in tort or otherwise in any way whatsoever.

7. RETURN OF GOODS/ REPAIRS

7.1 In the case of goods not manufactured by HSS, HSS’ liability is limited to making the benefit of any manufacturer warranty available to you (so far as those warranties can be transferred). 

7.2 HSS’ liability for any defect in the goods or services is limited to the purchase price of those goods or services. If goods are returned by the customer or in the case of any faulty workmanship, HSS may, in its discretion repair or replace the goods or carry out repairs to rectify the faulty workmanship or refund the purchase price to the Customer, provided that: 

(a) HSS is notified within seven (7) days, 

(b) The goods must be returned to HSS within seven days of the date of delivery (any freight to or from the Customer to be paid by the Customer); and 

(c) The Customer must supply the date and number of any invoices relating to the goods or services; and 

(d) HSS must have a reasonable opportunity to inspect the goods and be satisfied the goods are defective or the workmanship is faulty.

7.3 No goods will be accepted for return by HSS without prior approval. 

7.4 HSS has no liability if the Customer has attempted or authorised any repair work without the written consent of HSS. 

8. PPSA SECURITY INTEREST

8.1 Pursuant to clause 6, the customer grants to HSS a Security Interest in the goods and their proceeds, which shall secure the obligation of the customer to pay the purchase price of the goods and any other obligations of the customer to HSS under this contract (together “the Indebtedness”) and, where the goods and/or proceeds are not readily identifiable and/or traceable or their recoverable value is insufficient to pay the Indebtedness, the security interest shall also extend to all the customers present and after acquired property, to the extent required to secure the Indebtedness. 

8.2 As and when required by HSS the customer shall, at its own expense, provide all reasonable assistance and relevant information to enable HSS to register a Financing Statement or Financing Change Statement and generally to obtain, maintain, register and enforce HSS’ Security Interest in respect of the goods supplied, in accordance with the Personal Property Securities Act 1999 (“PPSA”). 

8.3 The Customer shall not change its name without first notifying HSS of the new name not less than 7 days before the change takes effect. 

8.4 Nothing in sections 114(1)(a), 133 and 134 of the PPSA will apply to this contract. 

The Customer waives their right to: 

(a) receive notice under section 120(2) and 129; 

(b) receive a statement of account under section 116; 

(c) receive surplus distributed under section 117; 

(d) recover any surplus under section 119; 

(e) object to any proposal of the Company to retain collateral under section 121; 

(f) not have goods damaged in the event that HSS were to remove an accession under section 125; 

(g) apply to the Court for an order concerning the removal of an accession under section 131; 

(h) redeem collateral under section 132;

8.5 The customer and the Guarantor agrees that HSS shall have the right to complete and register a mortgage over any property owned by the customer and/or any Guarantor of the customer to secure the amount owing and HSS shall have the right at its discretion to place a caveat on any such property for the purpose of this clause and the customer and/or Guarantor hereby irrevocably appoints HSS as the attorney of the customer and/or Guarantor for the purpose of HSS exercising its rights under this clause whilst any amount owing remains outstanding. 

8.6 In the event of Voluntary Administration of the Customer, the administrator may not sell any goods subject to the security interest granted by clauses 6 and 8 without prior written consent of HSS.

9. DEFAULT

9.1 Except as otherwise provided by statute HSS shall not be liable for: 

(a) the customer fails to pay any amount owing on the due date; 

(b) the customer sells, parts with possession, leases or disposes of any goods or does anything inconsistent with HSS’ ownership of the goods prior to making payments in full to HSS; 

(c) HSS believes the customer has committed or will commit an act of bankruptcy, has had or is about to have a receiver, or voluntary administrator appointed, or is declared insolvent; 

(d) The goods are at risk, as that term is defined in the PPSA; 

(e) The customer neglects or fails to carry on its business to the reasonable satisfaction of HSS, or if there is a significant deterioration in the trading or asset position of the customer.

10. LIABILITY

10.1 Except as otherwise provided by statute HSS shall not be liable for: 

(a) Any loss or damage of any kind whatsoever whether suffered or incurred by the customer or another person whether such loss or damage arises directly or indirectly from goods or services or advice provided by HSS to the customer and without limiting the generality of the foregoing of this clause HSS shall not be liable for any consequential loss or damage of any kind including without limitation any financial loss; and 

(b) Except as provided in this contract HSS shall not be liable in contract, or in tort, or otherwise for any loss, damage, or injury beyond the value of the goods or services provided by HSS to the customer; and 

(c) The customer shall indemnify HSS against all claims 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 HSS or otherwise, brought by any person in connection with any matter, act, omission, or error by HSS its agents or employees in connection with the goods or services; and 

(d) The customer will indemnify HSS against all loss, and any claims or demands made against HSS for any injury or any damage to property caused by hazards or risks found within the customers premises, or caused by equipment owned by the customer or any delay or failure to supply goods or services.

11. WARRANTY

11.1 The guarantees contained in the Consumer Guarantees Act 1993 are excluded where the customer acquires goods or services from HSS for the purposes of a business in terms of section 2 and 43 of that Act. 

11.2 Nothing in this contract is intended to contract out of the provisions of the Consumer Guarantees Act 1993, except to the extent permitted by the Act. 

11.3 The only guarantees applying to the goods and services supplied by HSS are those confirmed by HSS in writing.

12. CANCELLATION

12.1 HSS shall, without any liability, and without any prejudice to any other right it has in law or equity, have the right by notice to suspend or cancel in whole or in part any contract for the supply of goods or services to the customer if the customer fails to pay any amount owing after the due date or the customer commits an act of bankruptcy as defined in section 19 of the Insolvency Act 1967. 

12.2 Any cancellation or suspension under clause 12.1 of this agreement shall not affect HSS’ claim for amount due at the time of cancellation or suspension or for damages for any breach of any terms of this contract or the customer’s obligations to HSS under this contract.

13. VARIATION

13.1 HSS shall be entitled at any time by notice in writing to the customer to vary any provision of this contract and the customer shall be bound thereby except as provided in clause 14.2 

13.2 The customer shall be entitled within seven (7) days of the customer’s receipt of the notice referred to in clause 14.1 to give one (1) months written notice to HSS terminating this contract. 

13.3 In the event of the customer giving written notice pursuant to clause 14.2 to HSS the purported variation of this contract shall have no effect as between HSS and the customer.

14. MISCELLANEOUS 

14.1 The customer shall not assign all or any of its rights or obligations under this contract without the written consent of HSS. 

14.2 HSS shall not be liable for delay or failure to perform its obligations if the cause of the delay or failure is beyond its control. 

14. 3 Failure by HSS to enforce any of the terms and conditions contained in this contract shall not be deemed to be a waiver of any of the rights or obligations HSS has under this contract. 

14. 4 The law of New Zealand shall apply to this contract except to the extent expressly negatived or varied by this contract. 

14. 5 Where the terms of this contract are at variance with the order or instruction from the customer, this contract shall prevail. 

14. 6 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. 

14. 7 Any dispute between the parties is to be dealt with in accordance with the Arbitration Act 1996 

14. 8 Any notice may be given by phone, in person, posted, or sent by facsimile to the customer or where the customer is a company, to any director of the company.

15. DISPUTE PERIOD

15.1 The customer has 14 days before the due date on the invoice issued to notify HSS of any dispute.  HSS will not consider any dispute after this time.  The invoice/s issued will have deemed to have been accepted and to be paid on the due date stated.

16. DEFINITIONS

16.1 “amount owing” means the price charged by HSS for the goods or services, and any other sums which HSS is entitled to charge under this contract which reman unpaid. 

16.2 “HSS” shall mean Hydraulic Solutions Southland, or any agents or employees thereof. 

16.3 “Customer” shall mean the customer, any person acting on behalf of and with the authority of the customer, or any person purchasing goods or services from HSS. 

16.4 “goods” shall mean all goods, chattels supplied by HSS to the customer and shall include any fee or charge associated with the supply of goods by HSS to the customer. 

16.5 “services” shall mean all services provided by HSS to the customer and shall include without limitation the provision of all communication services and supplies, all charges for labour and work, hire charges, insurance charges, or any fee or charge associated with the supply of services by HSS to the customer. 

16.6 “price” shall mean the cost of the goods or services as agreed between HSS and the customer subject to clause 2 of this contract.

17.0 TERMS AND CONDITIONS OF TRADE

17.1 HSS’ Terms and Conditions of Trade can be found on our website https://www.hydsolutions.co.nz/terms-and-conditions 

17.2 By continuing to receive any goods and/or services the customer shall be deemed to have accepted HSS’ Terms and Conditions of Trade.