Terms & Conditions of Trade

POWER EQUIPMENT LIMITED TERMS AND CONDITIONS OF TRADE

1. Definitions

1.1  In these terms and conditions:

PE’ means POWER EQUIMENT LIMITED a division of the Power Equipment (NZ) Trading Trust and (if applicable) its related companies, successors, assigns and authorised agents;

Customer’ means the person, firm, company or entity purchasing goods or services from PE;

invoice’ includes any written quotation and other contractual document issued by PE;

goods’ means all goods sold or to be sold by PE to the Customer; and

services’ means all services provided by PE to the Customer or at the Customer’s request including project management, labour, technical information, advice and designs.

2. Terms and Conditions Paramount

2.1  Except as expressly agreed in writing PE’s terms and conditions of trade as modified from time to time and found on PE’s website at www.powerequipment.co.nz shall apply to and govern all contracts and other dealings between PE and the Customer notwithstanding any statement to the contrary in any order or other document of the Customer.

3. Orders

3.1  No Customer order shall bind PE unless accepted by PE. Notwithstanding any arrangement granting credit to the Customer, PE reserves the right to accept or decline any Customer order.

3.2  Where goods are sold by description or by reference to a sample, PE will use its best endeavours to supply goods complying with such description or sample, but PE shall not be liable for any variation in the goods.

3.3  The Customer shall be responsible for ensuring the accuracy of any order and of any applicable specifications. The quantity, quality and description of, and any specification for, goods shall be those set out in any PE quotation (if accepted by the Customer) or the Customer’s order (if accepted by PE), provided that PE may make changes to specifications which do not materially affect the quality or performance of goods. Where there shall be a PE quotation and a Customer order, the terms of PE’s quotation shall govern.

4. Delivery, Risk and Insurance

4.1  Goods shall be delivered or deemed delivered to the Customer at the time the goods leave PE’s premises notwithstanding that the goods may be in transit or in the possession of a carrier or other delivery agent. The risk of any loss or damage to or deterioration of goods due to any cause whatsoever including damage or loss in transit shall be borne by the Customer as from the time the goods leave PE’s premises provided that if goods remain on PE’s premises or with any carrier or other delivery agent due to the failure of the Customer to accept the goods or at the Customer’s request then all such risk shall be borne by the Customer as from the time of the Customer’s failure or request as the case may be.

4.2  The Customer shall insure and maintain the goods from the time risk passes to the Customer and, pending payment in full to PE, such insurance shall be held in the names of PE and the Customer as co-insured parties for their respective interests. The Customer may request that goods be insured in transit by PE and in such case the premium shall be payable by the Customer.

4.3  PE will endeavour to deliver goods within any timeframes requested by the Customer, but time for delivery shall not be of the essence and PE shall not be liable for any loss to the Customer caused by any delay or non-delivery. PE reserves the right to deliver goods by installments and failure by PE to deliver any one or more installment shall not entitle the Customer to cancel the contract as a whole.

4.4  Any claims for errors or short delivery shall be made in writing within 7 days of delivery and shall be accompanied by all supporting evidence in the Customer’s possession or under the Customer’s control.

5. Price

5.1  The Customer shall pay the price stated on PE’s invoice, save for errors which PE reserves the right to correct. All prices are quoted and shown net excluding GST, and do not include any other taxes or levies, delivery/freight charges, insurance charges or currency exchange fluctuations which, if applicable, will be extra charges payable by the Customer.

5.2  All published prices are indications only. In some cases estimates have been made and actual prices may vary. Prices are therefore subject to alteration without prior notice and offers to purchase are only accepted at the prices ruling at the time of delivery.

5.3  Services provided by PE shall be charged on the basis of either fixed quotes or time charged at PE’s rates in force from time-to-time. The Customer shall pay for all materials used and all other out-of-pocket expenses incurred by PE in connection with the provision of services, including (but not only) haul-out and hardstand fees, and travelling and accommodation expenses where applicable.

5.4  If in PE’s invoice there is reference to a deposit or any component of the purchase price for the goods or services being non-refundable, then the Customer shall not be entitled to a refund of any amount so paid in the event of cancellation or termination of contract for any reason whatsoever.

6. Payment

6.1  All accounts are:

  1. Cash on delivery of goods or completion of provision of services (COD); or
  2. Credit approved accounts (Credit Account); or
  3. On terms as agreed in writing between PE and the Customer.

6.2  All goods will be delivered COD unless credit is approved by PE in writing. If there is any uncertainty over the type of account or trading terms then COD terms shall apply. Notwithstanding that the Customer may have a Credit Account or other agreed trading terms, PE reserves the right to require COD or other payment terms in respect of any particular supply of goods or services.

6.3  In the case of Credit Accounts and other agreed trading terms, the Customer shall pay in full all accounts and amounts owed to PE by the payment date(s) specified in PE’s invoice(s). If no payment date is specified, then payment in full is due by the 20th day of the month following the month of PE’s invoice. No credit shall be extended on overdue accounts.

6.4  Time for payment shall be of the essence. In the event that payment is not received by the due date default interest may be charged by PE at a rate equivalent to 11 per cent per annum above the unsecured overdraft interest rate charged by PE’s bank and calculated on a daily basis on all moneys outstanding for the period during

which the payment has been overdue until all moneys including default interest have been paid in full. All payments shall be applied first in payment of default interest (if any).

6.5  Any discount offered by PE is contingent upon receipt of all monies owed by the Customer on or before the payment due date(s). If the Customer fails to make full payment by the due date any discount will immediately be withdrawn and debited to the Customer’s account.

6.6  PE may at its discretion apply any payments it receives from the Customer in and towards the satisfaction of any indebtedness of the Customer to PE and PE shall not be bound by any conditions or qualifications that the Customer may make in relation to any payment.

6.7  The Customer authorises PE to obtain at any time from any person or entity any information that PE may require for the purpose of assessing the Customer’s creditworthiness and the Customer irrevocably authorises and requests all such persons and entities to release to PE any personal information held concerning the Customer. The Customer agrees that in the event of its default PE may provide details of that default and personal information relating to the Customer to any credit agency so that such credit agency can maintain effective records.

7. Security Trade Control

7.1  If the Customer directly or indirectly sells, leases, exports, or otherwise disposes of the goods or services (collectively referred to as “Transactions”), the Customer must comply with any applicable laws and regulations of relevant countries (“Applicable Laws”).  The Customer must provide the Supplier with such information and documentation that the Supplier requests so as to comply with the Applicable Laws.

7.2  A Transaction will be prohibited if, to the best of the Customer’s knowledge:

a It is highly likely that a customer of the Customer (referred to as a “Purchaser”) may make use of the goods or services for the design, development, production, use or stockpiling of any weapons of mass destruction such as nuclear weapons, biological weapons, chemical weapons and missiles, and/or

b. it is highly likely that a Purchaser in any country and/or area determined as a country and/or area to which no weapons are to be exported under the resolutions approved by the Security Council of the United Nations (“UN”), the Council of the European Union and/or the Organization for Security and Co-operation in Europe, may make use of the goods for military purposes.

7.3  If the Customer receives any inquiry as to the Transactions involving the goods or services from the following Purchasers, the Customer must immediately inform and verify with the Supplier prior to acceptance of such Transactions:

  1. Any Purchaser listed on the latest version of the Foreign End User List issued by the Ministry of Economy, Trade and Industry of Japan, which is shown at the following website address: http://www.meti.go.jp/policy/anpo/englishpage.html;
  2. Any Purchaser listed on the latest version of the Denied Persons List and/or the Entity List issued by the Bureau of Industry and Security of the US Department of Commerce, which is shown at the following website address: http://www.bis.doc.gov/index.php/policy-guidance/lists-of-parties-of-concern;
  3. Any Purchaser located in any countries and/or areas, against which any economic sanctions have been imposed under resolution(s) approved by the Security Council of the UN and/or the Council of the European Union, the Organization for Security and Co-operation in Europe as far as the goods or services remain a “prohibited subject”, whose export to such countries and/or area is prohibited thereunder; and/or
  4. Any ultimate armament end user such as military force, military-related parties and/or organisation including Coast Guard.

7.4  The Customer hereby agrees to indemnify and hold the Supplier harmless from and against any and all fines, damages, losses, costs and expenses including reasonable legal fees (“Costs”) incurred by the Supplier as a result of any breach of this clause 7 by the Customer or any of the Customer’s distributors, dealers or retailers (collectively referred to as the “Customer’s Distributors”).

7.5  The Customer must include wording at least as stringent as this clause 7 in its agreements with the Customer’s Distributors whereby the indemnification obligation by such of the Customer’s Distributors for any fines, damages, losses, costs and expenses including reasonable legal fees must not be limited in any way, except to the extent required by law. Such indemnification will not affect the Supplier’s rights against the Customer nor its ability to terminate all agreements between the Supplier and the Customer.

8. Default

8.1  If the Customer fails to pay any amount owed to PE by the due date, or fails to comply with any other obligation owed to PE, then without prejudice to any of its other rights, remedies and powers PE may (notwithstanding that PE may have waived any previous default by the Customer):

  1. Cancel any contract and/or suspend further deliveries of goods or provision of services to the Customer.
  2. Enter the Customer’s premises or any other premises that the Customer is authorised to enter and retake possession of goods and sell them without being liable in any way to the Customer. Furthermore, the Customer shall indemnify PE for all costs (including legal costs on a solicitor and own client basis), claims by third parties or whatsoever in retaking possession and selling goods.
  3. Appoint a receiver pursuant to the Receiverships Act 1993 in respect of the goods (including their proceeds) and any such receiver may take possession of the goods and sell them and otherwise exercise all rights and powers conferred on a receiver by law.

8.2  Notwithstanding any other provision of these terms and conditions, PE may at any time by notice in writing suspend or terminate the Customer’s Credit Account or any other agreed trading terms and require immediate payment by the Customer of all amounts owed to PE and PE shall be entitled to exercise the powers set out in the preceding paragraphs 1, 2 and 3.

8.3  The Customer will upon demand pay to PE all costs, charges and expenses (including, but not only, collection commissions and legal costs on a solicitor and own client basis) incurred by PE in collecting or taking action to collect any amount owed by the Customer and in connection with the exercise, enforcement or preservation of any of PE’s rights, powers or interests.

9. Retention of title

9.1  Notwithstanding delivery and the passing of risk in goods, or any other provision of these terms and conditions, all goods (including, where applicable, any resulting product into which the goods are incorporated, manufactured or commingled, whether or not the original identity of the goods is lost) shall remain and be the property of PE as legal and equitable owner until PE has received cleared payment in full of all moneys owed by the Customer to PE. Until PE has received cleared payment in full of all moneys owed by the Customer to PE the Customer shall hold the goods as PE’s fiduciary agent and bailee and shall store the goods in such a way that it is clear that they are the property of PE. Unless PE directs otherwise, the Customer may use or resell the goods by way of bona fide sale at market value in the ordinary course of its business.

9.2  Until such time as the property in goods passes to the Customer, provided the goods are still in existence and have not been resold, PE shall be entitled at any time to require the Customer to return the goods to PE and PE and its agents may at any time without further notice enter the Customer’s premises or any other premises where the goods are stored and retake possession of the goods (if required, disconnecting the goods from any vessel, structure or equipment to which they may be attached or installed) or perfect PE’s security interest in the goods. In so doing PE shall have no liability for any losses, costs or charges suffered or incurred by the Customer and the Customer indemnifies and keeps indemnified PE against all liability PE may have to any third party in so acting.

10. Personal Property Securities Act 1999 (PPSA)

10.1  The goods shall be the collateral as that term is defined in the PPSA. The Customer grants in favour of PE a charge over all goods supplied by PE where such goods have been delivered but the Customer has not paid all moneys owed to PE and over all the Customer’s present and after-acquired property supplied by PE, and such charge shall be a “security interest” for the purposes of the PPSA and shall secure payment of all moneys owed by the Customer to PE including interest and other amounts payable under these terms and conditions and the costs of registering such security interest.

10.2  Where a charge granted over any goods is a registrable security interest under the PPSA the following shall apply:

  1. The Customer irrevocably appoints PE as the Customer’s attorney to do anything required to register the security interest on the Personal Property Securities Register including the authority to make such inquiries and obtain such information from third parties as is necessary or desirable to register the security interest.
  2. The Customer consents to the collection from any third party of any information necessary or desirable to register the security interest.
  3. The Customer will provide such information and do such acts and execute such further documents as in the opinion of PE may be necessary or desirable to enable PE to register and perfect under the PPSA the security interest as a first priority interest or with such other priority as PE may agree in writing.
  4. The Customer shall not challenge in any way PE’s right to register the security interest.
  5. The Customer shall not seek to obtain or register a discharge of the security interest without the prior written consent of PE.

10.3  The Customer agrees that sections 114(1)(a), 116, 117(1)(c), 119,120(2), 121, 125 to 127, 129 and 131 to 133 of the PPSA shall not apply to these terms and conditions or the security created hereunder.

10.4  The Customer waives the right to receive a copy of the verification statement confirming registration of a financing statement or a financing change statement relating to the security interest created by these terms and conditions.

10.5  The Customer must not change its name without first notifying PE of the new name not less than 7 days before the change takes effect.

10.6  The Customer must not allow or permit the creation of a lien over any goods prior to payment in full to PE of all moneys owed by the Customer to PE.

10.7  The Customer will upon demand pay all PE’s expenses and legal costs (on a solicitor and own client basis) in connection with the registration of a financing statement or financing change statement relating to the security interest created by these terms and conditions or of obtaining an order under section 167 of the PPSA.

10.8  If all moneys owed by the Customer have been paid to PE in full, including all moneys payable under these terms and conditions, PE shall at the request of the Customer and at the Customer’s cost, register a discharge of the security interest.

11. Returns

11.1  No goods are sold on a sale or return or approval basis. PE will not accept goods for return unless agreed in writing. PE will not accept return of indented goods ordered specifically for the Customer nor electrical goods. In the event of PE agreeing to accept returns, the following conditions shall apply:

  1. All goods must be unopened in their original packaging and in the same condition as when they left PE’s premises.
  2. All goods must be returned together with all original documentation within 7 days of PE notifying the Customer of its willingness to accept goods for return.
  3. All goods returned must be delivered pre-paid to PE’s premises.

11.2  PE reserves the right at its option to refuse the return of any goods, and in any case to charge (in addition to any non-refundable deposit) a restocking fee of 20% of the GST-exclusive purchase price.

12. Warranties; Defects

12.1  It is the responsibility of the Customer to satisfy itself as to the condition, quality, suitability and fitness of goods for any particular purpose and no representation, warranty or undertaking in relation to the goods has been or is made or given by or on behalf of PE in relation thereto.

12.2  All claims for defective goods must be in writing and delivered to PE together with the goods in question for inspection by a designated representative of PE within 7 days of receipt of the goods. All claims must quote the relevant PE invoice number. Any claims not made within 7 days of receipt will be deemed waived by the Customer.

12.3  PE will not be responsible for any shortages or damage suffered to goods while in transit. Claims for breakages, damages and shortages during transit must be made to the carrier or delivery agent.

12.4  PE shall have no liability in respect of any defect arising from misuse, willful damage, negligence, failure to follow instructions, unauthorised alteration or modification, abnormal working conditions or fair wear and tear.

12.5  PE shall have sole right to decide whether goods are capable of repair and PE’s liability (if any) in respect of goods shall be limited as follows:

  1. Where goods are capable of repair, to the repair of the goods or the payment of the cost of having the goods repaired; or
  2. Where goods are incapable of repair, to the replacement of the goods or supply of equivalent goods or the payment of the cost of replacing the goods or acquiring equivalent goods.

12.6  No guarantee or warranty is given, and no obligation incurred, by PE in respect of goods or components not manufactured by PE, in respect of which the Customer shall only be entitled to the benefit of any guarantee or warranty given to PE by the manufacturer or supplier provided that PE shall not be required to pay or incur any cost in relation thereto.

12.7  All services provided by PE are provided in good faith on the basis of the information provided by the Customer. Where PE is requested by the Customer to provide casual advice in conjunction with the sale of goods but not constituting the formal provision by PE of services then PE shall have no liability whatsoever in relation to any such advice given and the Customer shall rely solely on its own judgment in connection with all such matters. If the Customer alleges defects in PE’s workmanship then the Customer shall forthwith after becoming aware of same notify PE in writing. Failure to so notify PE in writing shall constitute a waiver by the Customer of its rights against PE in respect of any such alleged defect. PE shall only be liable to rectify defects in its workmanship arising during the period of three months after completion of provision of services or 100 running hours whichever is the lesser. PE shall have no liability where any services performed or goods supplied have been re-installed, modified, not maintained or improperly maintained or improperly used. Any rectification work required to be carried out by PE shall be carried out at a place and at a time stipulated by PE and the Customer shall be responsible for delivering the goods or vessel, as the case may be, to that place by that time.

12.8  No guarantee, warranty, representation or statement shall be binding on PE unless made in writing by a director or senior officer of PE. Except as expressly set forth in these terms and conditions all warranties and conditions, whether implied by law or otherwise, are excluded and PE shall have no liability whatsoever to the Customer. PE shall not be liable to the Customer for any indirect, special or consequential loss or damage (whether for loss of profit or otherwise) even if such loss were reasonably foreseeable or PE had been advised of the possibility of the Customer incurring same. If it shall be held that PE has any liability to the Customer then, except as expressly set forth in these terms and conditions, the liability of PE to the Customer shall not exceed the lesser of:

  1. the value of the goods or services the subject of any claim; or
  2. the contract price.

12.9  PE shall have no liability arising from, and may correct at any time, any typographical, clerical or other error or omission in any sales literature, price list, quotation, invoice, communication or other document or information issued by it.

12.10 Nothing in these terms and conditions shall affect the rights of the Customer under the Consumer Guarantees Act 1993 provided that if the Customer is, or holds itself out to be, acquiring the goods for the purposes of a business then the guarantees under the Consumer Guarantees Act 1993 are excluded.

13. Waiver

13.1  These terms and conditions remain in force notwithstanding any neglect, forbearance or delay in enforcement. PE shall not be deemed to have waived any term or condition unless such waiver shall be in writing and signed by a director or senior officer of PE and any such waiver shall apply only to the particular transaction to which it refers.

14. Severability

14.1  If any clause or provision of these terms and conditions shall be held illegal or unenforceable by any judgment of any Court or Tribunal having competent jurisdiction, such judgment shall not affect the remaining provisions hereof which shall remain in full force and effect as if such clause or provision held to be illegal or unenforceable had not been included herein.

15. Trustee Limitation of Liability

15.1  PE enter into and execute this contract as trustee for the Power Equipment (NZ) Trading Trust and not in its personal capacity, with the intent to bind only the Trustee for the time being under the said Trust.  Performance hereunder shall not be a personal liability or obligation but limited to the assets of the trust from time to time.

16. Governing Law

16.1  The contract shall be governed by the laws of New Zealand and the parties submit to the exclusive jurisdiction of the Courts of New Zealand.