Terms & Conditions of Trade
1. Terms of Sale
1.1 The company is AP HYDRAULICS LIMITED. The company will contract to sell and supply goods on these standard terms and conditions only. By placing or confirming an order with the company, the customer is accepting these standard terms and conditions, and anything to the contrary in the customer's enquiries; orders or confirmations will not apply.
2.1 These standard terms and conditions and the provisions in the Application for Credit Account (together the "Contract") are the full agreement between the company and the customer.
2.2 The company may, and the customer may not, vary or replace the Contract and it will be a condition of the company continuing to supply goods to the customer that the customer agrees to sign any variation or replacement of this Contract where required under the terms of this Contract.
2.3 To be effective, any waiver of any or all of these terms and conditions by the company must be in writing.
2.4 The customer may not assign all or any of its rights or obligations under the Contract without the prior written consent of the company.
2.5 The company is not bound by any error or omission on any invoice, order form or other document or statement issued by the company.
2.6 The Contract between the company and the customer is governed by the laws of New Zealand.
3. Orders Irrevocable
3.1 The customer may not cancel or vary an order once it has been placed or confirmed.
4.1 The customer must pay the price indicated on the invoice, order form or other document or statement issued by the company. All freight, packaging and other relevant costs are charged to the customer's account as shown on the invoice.
4.2 Payment is due on or before the 20th day of the month following the date on the invoice, order form or other document or statement issued by the company (the "due date") for approved credit customers, and as otherwise stated on invoice for non credit customers.
4.3 If the company at any time deems the credit of the customer to be unsatisfactory, it may immediately terminate this Contract (as defined in clause 2.1) or any credit arrangement and require the customer to pay the price on delivery of the goods.
4.4 All costs and expenses of or incurred by the company as a result of termination and recommencement of any credit arrangement are payable by the customer upon demand.
4.5 The company may charge interest on any overdue payment commencing on the due date until the date of actual payment. The interest rate will be the overdraft interest rate charged by the National Bank of New Zealand plus 2.5% per annum.
4.6 The customer agrees to pay on demand all costs (including commission and legal fees as between solicitor and own client and any other costs) incurred by the company or the company's agents relating to the recovery of any amounts payable by the customer to the company.
4.7 All payments by the customer must be made in full and without any deduction or right of set off or counterclaim. The customer agrees, however, that all moneys which the company may owe the customer on any account whatsoever may, at the company's option, be set off against payments due by the customer to the company.
4.8 Unless otherwise stated all prices exclude GST, which, if payable, is payable by the customer.
4.9 Progress payments may be invoiced where sales or services extend past 1 billing period.
5.1 Delivery of the goods is deemed to be made when the customer or the customer's agent is given possession of the goods at the company's warehouse or elsewhere (loading is then at the customer's risk); or when the goods arrive at the customer's premises (unloading is then at the customer's risk); whichever is the earlier.
5.2 On delivery, the goods are at the customer's sole risk, and with effect from the time of delivery, the customer will have in place all risks insurance to cover both its interest as bailee of the goods and the company's interest as owner of the goods under clause 6.1.
5.3 The company may choose the carrier and the method of transport, unless otherwise agreed by the company in writing. The company may choose to deliver by installments and may treat each delivery as a separate contract. Should the company fail to deliver or make defective delivery of one or more installments, this will not entitle the customer to repudiate the main Contract.
5.4 If the company believes that the customer may not make any payment when due, then the company may suspend or cancel any delivery.
5.5 Any delivery date agreed by the company is approximate only, and no delay in delivery will entitle the customer to cancel its order for the goods.
5.6 Loss or damage of goods whilst in transit from the company to the customer is the customer’s liability. Customer is expected to cover loss or damage under their own insurance arrangements.
6. Retention of Title
6.1 Property (both legal and equitable) in all goods delivered by the company to the customer does not pass (and the customer is a bailee only in respect of those goods) until payment in full is made for all goods supplied by the company to the customer. Until property has passed, the customer will store all goods in such a way that they are clearly identifiable as the property of the company.
6.2 Until the customer has paid the company in full for all goods supplied, the customer may not sell, dispose of or charge the goods and must hold or deal with the goods for and on behalf of the company. However, if the goods are sold prior to property passing to the customer, the proceeds of that sale must be held by the customer on trust for and on behalf of the company in a separate account.
6.3 Prior to the customer acquiring full property in the goods, the company or the company's agents may at any time enter upon any land, premises or property where it believes such goods may be, to view and inspect them, and, if the customer has not paid for them in full, retake possession of the goods regardless of whether they have been mixed, integrated or on sold. The customer will
indemnify the company on demand in respect of any costs or liabilities incurred by the company in exercising its rights under this clause.
6.4 The company will have and retain all property rights (including copyright) in all circuit designs, drawings and other items developed from the customers specifications until payment in full is made by the customer to the company for such circuit designs, drawings and other items.
7. Personal Property Securities Act 1999
7.1 The customer acknowledges that the Contract creates a security interest ("security interest") (as that term is defined in the Personal Properties Securities Act 1999 ("PPSA")) in the goods and, for avoidance of doubt, the proceeds of sale of the goods. The customer will, if requested by the company, sign any documents (including any new agreements), provide all necessary information
and do anything else required by the company to ensure that the security interest is a perfected purchase money security interest (as that term is defined in the PPSA).
7.2 Until payment to the company has been made in full for the goods, the customer acknowledges and agrees that in relation to goods that are inventory, the customer will not allow any non-purchase money security interest to arise in respect of the goods unless the company has perfected its purchase money security interest prior to the customer's possession of the goods.
7.3 If the goods are for the customer's business use the customer agrees, (to the extent permitted under the PPSA and unless the company agrees by notifying the customer in writing), that the customer will have no rights under Part 9 (Enforcement) of the PPSA. For example, but without limitation, the customer will have no rights under sections 114(1)(a) and 116 (to receive notice of
sale and statement of account), sections 121(2) and 122 (to receive any proposal or object to any proposal to retain the goods), sections 125 and 129 (relating to removal of accessions), and sections 132 and 133 (to redeem the goods or reinstate the Contract).
7.4 The customer waives its right under the PPSA to receive a copy of any verification statement or financing change statement (as those terms are defined in the PPSA).
8. Consumer Guarantees Act 1993 and Express Warranty for Business Use
8.1 If the customer is acquiring the goods for the purposes of a business, then all of the guarantees and remedies in the Consumer Guarantees Act 1993 are excluded however, the provisions of clauses 8.2 to 8.10 below will apply if payment for the goods has been made by the customer to the Company by the due date.
8.2 The company warrants that all goods are fit for their purpose and of merchantable quality and this warranty remains in force for the period of 12 months immediately following delivery (“express warranty"). The company may, however, choose to give a specific written warranty in relation to particular goods, in addition to or substitution for the express warranty in this clause, in which case, the specific written warranty will apply to those goods in place of the express warranty in this clause.
8.3 Subject to clause 8.6, no claim may be made by the customer under this warranty unless the claim is received by the company within 12 months after delivery or 7 days of the defect complained of becoming apparent, whichever is the earlier; or the claim is confirmed in writing; and the company is given a reasonable opportunity to inspect and verify the claim.
8.4 The liability of the company under this warranty is, in all cases, limited to the amount of the price of the goods in respect of which the warranty is given. The company may perform the express warranty by doing anyone of the following;
a. replace the goods, or supply equivalent goods; or b. repair the goods or workmanship; or c. pay for the reasonable costs of a. or b; or d. give a credit for or refund the purchase price for the goods.
8.5 Where the company decides to give a credit to a customer for goods returned in circumstances other than under clause 8.2., the customer must return the goods in 'as new' condition to the company within 14 days of having accepted delivery of the goods. The restocking fee for goods returned in 'as new' condition will be 15% of the purchase price of those goods. Where goods are returned by the customer to the company in 'not as new' condition or after 14 days of having accepted delivery of the goods, the company reserves the right, at its sole discretion, to either decline the credit request, or to charge a restocking fee. In addition to the restocking fee for goods returned in 'not as new' condition, there will be a fee for refurbishment of the goods at normal workshop rates. Goods manufactured or indented specifically for the sale will not be returnable for Credit.
8.6 The warranty in this clause does not cover goods where the identification or serial number has been altered, defaced or removed, unless done so by the company; b. any defect caused or contributed to by the customer; c. any attempt to repair or adjust the defective goods made by any person or persons not authorised by the company to make repairs or adjustments; or d. costs for
shipment of the defective goods to the place of repair.
8.7 The company excludes all other representations, warranties (whether express or implied) and liabilities whether in contract, tort or any other legal principle, or otherwise.
8.8 The company will not be liable to the customer, or any other person, for any loss or damage: a. caused by any delay in delivery no matter how that delay is caused; b. arising directly or indirectly from the goods or their use, any services provided by the company, or any breach by the company of any of its obligations under these terms and conditions.
8.9 The company will not be liable for any consequential, indirect or special damages or loss of any kind of the customer or of any other person.
8.10 If the company is ever liable to the customer, or any other person, and the company cannot rely on the exclusions of representations, warranties or liabilities set out above, then the liability of the company is in all cases limited to the amount of the price of the goods.
Receipt of any order shall be deemed to be acceptance by the customer of theses “Terms and Conditions of Trade” not withstanding anything that may be stated to the contrary on the customer’s order; be it written or verbal.
10. Personal Guarantee
10.1 If the customer is a company or trust, the director(s) or trustee(s) signing this Contract, in consideration for AP Hydraulics Limited agreeing to supply goods or services, and grant credit to the customer at their request, also sign this Contract in their personal capacity and jointly and severally personally undertake as principal debtors to AP Hydraulics Limited the payment of any and all monies now or hereafter owed by the customer to AP Hydraulics Limited and indemnify AP Hydraulics Limited against non-payment by the customer. Any personal liability of a signatory hereto shall not exclude the customer in any way whatsoever from the liabilities and obligations contained in this Contract. The signatories and customer shall not be jointly and severally liable under the terms and conditions and payment of all sums due hereunder.
All Kawasaki and Staffa pumps and motors carry a full 12 month manufacturer’s guarantee. AP Hydraulics also keeps a full range of spares and seals for these items.