(a) “Company” means Fuelchief Limited and includes all lawful assigns and successors.
(b) “Goods” means the goods being built and supplied by the Company to the Customer pursuant to this agreement.
(c) “Customer” means the purchaser of the Goods and as named on the preceding page.
(d) “Drawings” means the drawings of the Goods to be built attached this agreement and initialled by the Customer.
(e) “Specifications” means the written document describing the Goods attached to this agreement and initialled by the Customer.
(f) “Price” means the price of the Goods set out in the quote.
(g) “Works” means the works required by the Company to complete the Goods.
Unless other payment terms are agreed by the Company in writing, the Customer shall pay the Company a deposit of 30% of the inclusive Price upon its representative accepting quote, initialling drawings and specifications, and the balance within 5 working days of receiving notification from the Company that the Goods are available for collection. Unless otherwise agreed, full payment is to be made prior to collection or delivery of Goods.
Unless otherwise agreed any quote given by the Company for Goods shall be valid for 30 days from the date of issue.
Without prejudice to any other of its rights, the Company shall be entitled to charge interest at the rate of 1.5% per month on all overdue moneys. Interest shall compound monthly on the 20th day of each month.
5.1 Risk in the Goods passes to the Customer on delivery.
5.2 Ownership of and title to the Goods is retained by the Company and shall not pass to the Customer until the Company receives payment in full for the Goods.
5.3 Until title in the Goods passes to the Customer:
(a) the Customer must: (i) hold the Goods as bailee of the Company; and (ii) store the Goods in a manner which will protect them from damage or deterioration, separately from the Customer’s or any other person’s Goods in a manner such that they are separately identifiable.
(b) the Company authorises the Customer, in the ordinary course of the Customer’s business, to use the Goods or sell them for full consideration, provided that the proceeds of such sale or use (in whatever form) shall be the property of the Company and the Customer must hold such proceeds on trust for the Company and deal with them as the Company directs. This authority to use and sell the Goods is revoked immediately if a Customer default occurs (as described below) or if the Company revokes that authority in writing.
5.4 The retention of title clause above creates a security interest in the Goods and their proceeds under the Personal Property Securities Act 1999 (NZ) (“PPSA”). In the case of Goods which are attached, fixed or incorporated into any property of the Customer, by way of manufacturing or assembly process by the Customer or any third party, that security interest extends to those new goods (which shall form part of the definition of goods for the purposes of the application of the PPSA). The Customer agrees to sign such documents and do such other things as the Company may require in order to enable the Company to register and perfect that interest and obtain and maintain a first ranking priority position over the Goods and their proceeds. To the maximum extent permitted by applicable law, the parties agree that:
(a) the Customer waives any right to receive a verification statement under the PPSA in respect of the security interest created by these terms;
(b) if the Goods subsequently become part of some other product or mass, then nothing in these terms can be construed as limiting the application of sections 82 to 86 of the PPSA;
(c) the Customer waives and, with the Company’s agreement contracts out of, the Customer’s rights under the sections referred to in section 107(2) of the PPSA; and
(d) nothing in sections 114(1)(a), 133 and 134 of the PPSA applies to these terms.
6.1 The Customer and the directors and shareholders of the Customer (if a company) authorise any person, company or organisation to provide the Company with such information as the Company may require in response to the Company’s credit enquiries. Any information obtained by the Company under this clause will be confined to that reasonably required by the Company.
6.2 The Customer and the directors and shareholders of the Customer (if a company) authorise the Company to furnish any third party with details of this agreement and any subsequent dealings that the Company may have had with the Customer or its directors and shareholders (if a company). The third party may supply such information to any other person, company or organisation for their use. Any disclosure made by the Company under this clause will be confined to that reasonably required by the third party.
6.3 Under the Privacy Act 1993 the Customer has the right of access to and correction of their personal information held by the Company.
6.4 Despite any agreement to the contrary, all payments shall become immediately due and payable if the Company reasonably believes that the information which the Customer has provided to the Company in its credit application is not correct or no longer correct, or if the Customer defaults under any agreement with the Company, becomes insolvent or commits any act of bankruptcy, a receiver, liquidator or statutory manager is appointed over any of the Customer’s assets or the Customer attempts to make an arrangement or composition with its creditors.
Should the Company or its representatives enter into discussions with the Customer regarding compliance with New Zealand legislative requirements, regulations, codes of practice, or any other statutory provisions relating to the installation of fuel tanks and/or their accessories, these discussions will be opinion only and not be held as recommendations. The Company accepts no liability for any decision made by the Customer as a result of those discussions and the Company advises the Customer to seek qualified independent advice on all statutory and regulatory matters.
The Customer shall be solely responsible for obtaining any necessary permits under and for compliance with all legislation, regulations, bylaws or rules having the force of law in connection with the installation and operation of the Goods.
9.1 The Goods are to be collected by the Customer from the Company’s Christchurch manufacturing plant at 5 Tanya Street, Christchurch. The Company may at its discretion, arrange for the delivery of the Goods to the Customer’s nominated address on the basis that freight and cartage costs, together with the Company’s handling fee, will be paid in addition to the Price prior to delivery being made.
9.2 If the Customer does not collect the Goods within 5 working days of receiving notification from the Company that the Goods are available for collection or arrange delivery with the Company, then the Customer shall pay in addition to any other amounts required under this agreement, a storage charge of $50.00 dollars per day. This does not apply if the company and customer have agreed in writing to other arrangements. This charge, and any other sums owing will need to be paid prior to any collection or delivery being made.
9.3 Unless otherwise the agreed, the Goods may not be collected and / or delivered till such time as all amounts owing under this Agreement are paid.
9.4 In addition to clause 9.2, if the Customer does not collect the Goods within 10 days of the Company giving notice that those Goods are available for collection, the Company may dispose of the Goods (including by resale) at the cost of the Customer. The Customer must pay for the Goods in accordance with clause 2, whether or not the Customer collects the Goods and whether or not the Company disposes of the Goods under this clause. The Company will account to the Customer for the proceeds of any resale of the Goods, net of the costs of the resale and any outstanding amounts owed to the Company by the Customer.
If any time for delivery is stated at time of order, such time shall be approximate only and shall not be deemed to be the essence of the agreement.
The Price at the date of this agreement shall be subject to later adjustments for substitutions and variations.
The Customer warrants to be able to pay the Price and has arranged its financial affairs to enable it to meet the payments required under this agreement. Where the Company has agreed to extend credit to the Customer, the Company may, from time to time at its discretion, vary the Customer’s credit limit. If a purchase of Goods would exceed the Customer’s current credit limit, the Company may require payment in cash of the excess before their delivery or collection.
The Company shall commence the Works as soon as practical after the deposit has been paid and proceed to carry out the Works with all reasonable diligence and expedition. Where a time period for completion has been quoted, this period does not commence until the deposit has been paid.
From commencement of the Works to completion the Company shall keep in full sufficient insurance to keep the Works insured. If the Goods are not collected by the Customer within 5 working days of receiving notification from the Company that the Goods are available for collection or arrangements made for delivery of the Goods, then the Goods will be stored at the shall be stored at the Company’s manufacturing plant at the risk of the Customer, unless alternative arrangements are made with the Company.
The Customer acknowledges the Company’s ownership of all intellectual property rights in the Goods and the manufacturing processes used by the Company in manufacturing the Goods. The Company does not transfer to the Customer any right, title or interest in any intellectual property rights or in relating to the Goods or its manufacturing processes.
If any discrepancy or conflict between the Drawings and the Specifications appears the Specifications shall prevail and figure dimensions shall prevail over scale dimensions.
If any material or arrangement or process required by the Drawings and Specifications is or becomes incomparable or prohibited by law, the Company may substitute another reasonable equivalent material, arrangement or process with appropriate adjustment of the Price. All such substitutions shall be subject to the prior approval of the Customer which shall not be unreasonably withheld.
The Company may make any reasonable variation to the Works which may be ordered by the Customer in writing. However, the Company shall not be obliged to make any variation to increase the Price unless the Company is satisfied that the Customer is able to pay such increased Price.
The Company warrants that the Goods will comply with the terms of the warranty applicable to the particular Goods. Such terms will be provided at the time of supply and may be published on the Company’s website. The Company reserves the right to vary the terms of any warranty from time to time by publishing revised terms on its website.
If the Customer ceases to have full legal control of its affairs and the person acquiring control of those affairs cannot continue to satisfy the Company that the person will complete the agreement then the Company may exercise any rights to which it would be entitled to if the Customer refused to complete the agreement.
21.1 Except as set out in these terms of otherwise expressly agreed in writing, all conditions, representations, warranties, terms and undertakings, whether express or implied, are excluded to the maximum extent permitted by law. Without limiting the preceding sentence, Part 3 (Sale of Goods) of the Contract and Commercial Law Act 2017 is expressly excluded and the Company gives no representation or warranty concerning any description, condition, quality, fitness of suitability for purpose of any Goods or regarding the performance or outcome of using the Goods. The Customer acknowledges that it must rely on its own skill and judgment regarding the fitness and suitability of the Goods.
21.2 Any advice provided to the Customer by the Company, including but not limited to advice relating to the Goods supplied, is ancillary to the supply of the Goods. All such advice is provided on an “all care, no responsibility basis.” The Company is not liable in any manner whatsoever for any such advice. Any reliance on this advice by the Customer is entirely at the Customer’s risk.
21.3 Where Goods are acquired in trade, the Customer acknowledges that the Consumer Guarantees Act 1993 (“CGA”) does not apply.
21.4 Notwithstanding any other provision of these terms, the Company’s maximum aggregate liability arising out of or in connection with these terms, whether in contract, tort (including negligence) or otherwise, will not exceed the price paid by the Customer for the Goods the subject of the relevant claim.
21.5 Any claim (other than a warranty claim, which must be made in accordance with the relevant warranty) that the Goods delivered are not as ordered must be made by the Customer to the Company in writing within 14 days of collection or delivery of the Goods. Any claims not made within this timeframe will be invalid and the Company will have no liability whatsoever in respect of such claims.
21.6 Notwithstanding any other provision of the terms, in no event will be Company be liable, whether in contract, tort or otherwise:
(a) where the Customer has altered or modified any Goods, misapplied any Goods or subjected any Goods to any unusual or non-recommended use, service or handling;
(b) for any indirect or consequential loss, or for any loss of profit, savings or goodwill (whether direct or indirect), special loss, exemplary damages, loss of opportunity or other economic loss.
21.7 The Customer shall indemnify the Company against all claims and loss of any kind whatsoever caused or arising as result of the negligence of the Customer or otherwise, brought by any person in connection with any matter, act, omission or error by the Customer its agents or employees in connection with the Goods.
The Customer shall be immediately liable for all costs of collection (including legal costs as between solicitor and client) of and incidental to the enforcement or attempted enforcement of the Company’s rights, remedies and powers under this agreement.
If at any time the Company does not enforce any of these terms or grant the Customer time, or other indulgence, the Company will not be construed as having waived that term or its rights to later enforce that or any other term.
If any portion(s) of this agreement is/are deemed to be invalid, illegal or unenforceable the remaining provisions shall remain in full force and effect.
All amounts under this agreement are in New Zealand dollars unless otherwise stated in the quote.
This agreement will be governed by New Zealand law and the Customer agrees to submit to the exclusive jurisdiction of the New Zealand Courts. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded.