Terms and Conditions

TERMS AND CONDITIONS OF SUPPLY

 

1. APPLICABILITY OF CONDITIONS

(a) These Terms and Conditions of Supply of Spray Nozzle Engineering Limited NZBN 9429038068034; Spray Nozzle Engineering Pty Ltd ACN 056 441 724; Reel-Tech Pty Ltd ACN 056 441 555; DetectaClean Pty Ltd ACN 604 328 154; Spray Nozzle Engineering Ltd RGN 684 946 48; Reel-Tech Ltd RGN 687 951 17; DetectaClean-SNE AG Spray Ltd RGN 116229226(severally hereinafter called ‘the Company’) apply as

(b)Unless otherwise agreed in writing by the Company the following conditions shall govern this transaction and shall be incorporated into all future transactions between the Company and the customer (hereinafter called ‘the Customer’) for all the sales, supplies and deliveries of materials and other products (hereinafter called ’Goods’), whether or not these conditions are made expressly applicable to any particular future

(C)Any engineering, installation and commissioning services (Excluded Services) will only be provided by the Company upon the execution of a separate agreement by the parties outlining the terms of the provision of the Excluded Services by the Company to the

2. THE STATUTORY RIGHTS

The Customer’s statutory rights apply to the extent they cannot be lawfully excluded. These conditions shall not limit, restrict, modify or exclude the rights and remedies upon the Customer, or the liabilities imposed   upon the Company by any condition or warranty implied by New Zealand legislation prohibiting or rendering void any such limitation, restriction, modification or exclusion.

3. WARRANTIES

Subject to Condition 2.

(a)Warranty on Goods that are not manufactured by the Company – All Goods that are purchased and not manufactured by the Company and re-sold to the Customer are subject to the terms and conditions of any warranty as issued by the manufacturer of those Goods and the Company, to the extent permitted by law, assigns the benefit of that manufacturer’s warranty to the Customer.

(b)Manufactured Equipment Warranty – The Company will replace, repair or refund the purchase price of the Goods as manufactured by the Company (excluding such items as covered by separate warranties above in 3 (a) at their option, free of charges, except transportation to and from the Customer, if defective in their manufacture or Definition of defective products shall be governed by the Company’s judgment regarding acceptable application duty as employed by the Customer. Such acceptable duty shall not be the responsibility of the Company at any time but shall remain the responsibility of the Customer. Product duty must be subject to Company scrutiny at time of Claim. The acceptance of a Warranty return by the Company shall in no way acknowledge existence of a defect. Claims must be lodged in writing to the Company within 90 days of installation or one year from dispatch date, whichever occurs first. Goods must not under any circumstances be returned prior to this Claim being acknowledged in writing by the Company and approval for such returns being granted by the Company. Such approval for return shall satisfy inspection purposes only and does not confirm acceptance of Claim. The Claim will be further subject to analysis prior to acceptance or rejection. The Goods should be returned to the place of purchase. This warranty is an exclusive remedy and the Company shall not be liable for consequential damages, injury or commercial loss. The Company makes no warranty of fitness for a particular purpose and makes no other warranty, express or implied arising from the course of dealing or usage in trade. The right conferred on the Customer by this Condition shall be the sole liability on the Company in respect to any defects affecting any Goods of the Company.

4. ADVICE/TECHNICAL INFORMATION

The Customer agrees that any advice, recommendation, information, document, deliverable or service provided by the Company or its employees or agents in relation to Goods, their use and application or any other matter whatsoever (Information) is based upon research testing and enquiries believed by the Company to be appropriate and reliable. Subject to condition 2, any Information provided is offered as helpful suggestions only and without any liability or responsibility on the part of the Company or is employees or agents and is accepted by the Customer acting upon it on this basis. The Company gives no warranty in relation to the Information or its use, or that the Information will not infringe any third-party rights including Intellectual Property Rights.  The Customer acknowledges and agrees that the chemical and temperature compatibility along with dimensional, pressure and performance suitability of the Goods not excluding all other aspects of their specification are the exclusive responsibility of the Customer. Chemical compatibility charts and product performance data including dimensional information is available on request by the Customer. Specifications and any other technical information is subject to change without notice.

5. ORDERS/SALES/RETURNS/CREDITS

(a) The giving of an order by the Customer to the Company for any Goods shall constitute an unqualified acknowledgement by the Customer that, if the Company accepts the Order, the Sale, supply or delivery of such Goods by the Company will be governed solely by these Terms and Conditions of All orders from the Customer accepted by the Company for the sale, supply or delivery of any Goods are so accepted solely subject to these Terms and Conditions of Supply. No addition to or variation of these Terms and Conditions of Supply and no oral stipulation or representation shall be binding on the Company unless expressly agreed to in writing and signed by a Director or the Secretary of the Company on its behalf.

(b) No order may be cancelled by the Customer once the Company has accepted If the Customer wrongfully cancels any order, the Company shall (without prejudice to any other rights of the Company) be entitled to be fully indemnified by the Customer against all and any loss arising through or in connection with such cancellation, and to withhold delivery of any other Goods ordered by the Customer until the Customer shall have paid the amount of such loss.

(c) No Returns will be considered for credit unless claims for return are lodged in writing to the Company within 90 days of sale or shipment either of which occurs first. Goods must not under any circumstances be returned prior to this notice being acknowledged in writing by the Company and approval for such returns being granted by the Company. Such approval for return shall only apply to regularly stocked inventory lines only. The Goods should be returned to the place of purchase. The Customer acknowledges that Goods that are specifically manufactures to customer specifications and Goods that are not regularly stocked by the Company, are not able to be returned by the Customer to the Company unless the Company is required by law to accept any such return or agree otherwise. All Products accepted for credit will be subject to a minimum 25% or greater restocking No Goods will be accepted for credit after one year from date of purchase.

6. PRICES

(a) Unless otherwise expressly stated in writing, all prices quoted by the Company are:

i. Exclusive of G.S.T. and any other sale or purchase taxes at any time in force.

ii. F.O.B. the Company’s premises.

(b) The prices for Goods quoted by the Company are indicative only, and the Company reserves the right to increase or decrease such prices without notice, except where the Company has expressly stated in writing that a price is definitive and during what period the price will remain definitive.

7. TITLE AND RISK OF GOODS

(a) Title to, and property of the Goods supplied will remain with the Company and will only pass to the Customer once all moneys owing by the Customer to the Company have been paid in full.

(b) Risk in the Goods passes to the Customer upon the Goods being removed from the Company’s premises (or that of the Company’s supplier or agent) for delivery to the Customer.

(c) The Customer is responsible for arranging and taking out in its own name and its own cost, any insurance in respect of the Goods from the time risk passes to the Customer under this clause.

(d) The Customer is responsible for all loss and damage to the Goods, however caused, occurring after the risk in the Goods passes to the Customer under clause 7(b).

(e) In the event that the Customer is required to return any Goods to the Company, risk in the Goods passes to the Company on confirmation of the receipt of the Goods by the Company.

(f) Until full title, property and ownership of the Goods passes to the Customer in accordance with clause 7(a), while the Goods remain in the Customer’s full control and possession:

i. The Customer must hold the Goods as the Company’s fiduciary agent and Bailee and must not sell, lease, dispose or otherwise deal with the Goods in any way without the prior written consent of the Company;

ii. The Customer must keep and maintain the Goods in good and substantial repair;

iii. The Customer must insure the Goods for their full replacement value (which must not be less than the purchase price) and must store the relevant Goods separately from any other property in a way that enables the Goods to be clearly identified and distinguished from other property in possession of the Customer that is not held by the Customer as Bailee of the Company;

iv. The Company may at any time after payment is overdue require the Customer to deliver the Goods to the Company and, if the Customer fails to deliver the Goods immediately, the Company may enter the premises of the Customer or any third party where the Goods are stored and repossess them;

iv. The Customer must not pledge or grant a security interest in or in any way charge by way of security for any indebtedness, any of the Goods and if the Customer does pledge or in any way charge by way of security, for any indebtedness, any of the Goods for which property and ownership has not passed to the Customer, the Customer must remove the pledge, charge or security interest immediately and all moneys owing by the Customer to the Company will (without prejudice to any other right or remedy of the Company) immediately become due and payable to the Company.

(g) For the purposes of the Company exercising its rights under clause 7(f)iv, the Customer:

i. Expressly authorises and grants the Company and its agents an express, irrevocable license to enter the premises of the Customer or relevant third party to remove or arrange for the removal of the Goods; and

ii. Indemnifies the Company against any loss that may be incurred or sustained by the Company, its employees or agents, as a result of the entry of those premises where the Goods are stored, except where such loss is directly caused by the wrongful acts or omissions of the Company.

(h) Notwithstanding that title to the Goods has not passed to the Customer under clause 7(a), the Customer may subject to obtaining the Company’s prior written approval, resell the Goods or any part of them in the name of the Customer but only as agent for the Company and may deliver any Goods so sold to the buyer of those Goods but only in the ordinary course of its business and on terms which will not prejudice the Company’s ability to obtain any amount paid or due to be paid by the buyer of Goods (Sale Proceeds) and

i. Any Sale Proceeds must be held by the Customer on trust for the Company and any amounts received by the Customer must be banked in a separate bank account relating only to the sale proceeds of any Goods and must be forwarded as soon as possible to the Company in satisfaction of any amount owed by the Customer in respect of the Goods; and

ii. The Customer must keep and maintain separate records in relation to the Sale Proceeds received and held by the Customer and must provide those records to the Company immediately upon request by the Company.

(i)If an Insolvency Event occurs in respect of the Customer then, without the need for notice or demand by the Company, the Customer acknowledges that any sale or purported sale of the Goods will not be in the ordinary course of the Customer’s business and the proceeds of any Goods sold in those circumstances will, to the extent of any money owing by the Customer to the Company, be held on trust for the Company by the administrator, controller or similar officer as the case may be, or if there is no such officer, by the Customer.

(j)For the purpose of paragraph (i), “Insolvency Event” means in relation to a body corporate, a liquidation or winding up or the appointment of a voluntary administrator, receiver, manager or similar insolvency administrator to that body corporate or any substantial part of its assets; in relation to an individual or partnership, the act of bankruptcy, or entering into a scheme or arrangement with creditors; in relation to a trust, the making of an application or order in any court for accounts to be taken in respect of the trust or for any property of the trust to be brought into court or administered by the court under its control; or the occurrence of any event that has substantially the same effect to any of the preceding events.

(k)The provisions of each paragraph of this condition and rights thereby conferred upon the Company are distinct and severable from the provisions of each other paragraph and any invalidity of any thereof (whether as between the Company and the Customer or the Company and any other person) shall not affect the operation according to its term of each other

8. SECURITY INTEREST

(a) These terms apply to the extent that the agreement the Company has with the Customer provides for or contains a ‘security interest’ for the purposes of the Personal Property Securities Act 1999 (“PPSA”), or part of it. The security interest granted to Company is a ‘purchase money security interest’ (“PMSI”) to the extent that it can be under section 16 of the PPSA.

(b) The Company may register its security interest on the Personal Property Securities Register (PPSR). The Customer must do anything (such as obtaining consents and signing documents) which the Company require for the purposes of:

i. ensuring that its security interest is enforceable, perfected and otherwise effective under the PPSA;

ii. enabling the Company to gain first priority (or any other priority agreed to us in writing) for its security interest; and

iii. enabling the Company to exercise rights in connection with the security interest.

(c) The Company’s rights under its agreement with the Customer are in addition to and not in substitution for its rights under other law (including the PPSA) and the Company may choose whether to exercise rights under its agreement and/ or under such other law, as its sees fit.

(d) The Customer must not create, purport to create or permit to be created any ‘security interest’ (as defined in PPSA) in the Goods other than with Company’s express written consent.

(e) The Customer must not lease, hire, bail or give possession of (‘sub-hire’) the equipment to anyone else unless the Company (in its absolute discretion) first consent in writing. Any such sub-hire must be in writing in a form acceptable to the Company and must be expressed to be subject to the Company’s rights under the agreement with the Customer.

(f) The Customer waives any right to receive a copy of the verification statement under the PPSA and the parties expressly contract out of the Customer’s rights under sections 116, 119, 120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA. The Customer indemnifies the Company as far as permitted by law out of any loss suffered by the Customer or third party in relation to this clause.

(g) The Customer must take all steps including registration under PPSA as may be required to:

i. ensure that any security interest arising under or in respect of the sub-hire is enforceable, perfected and otherwise effective under the PPSA;

ii. enabling Company to gain (subject always to its rights) first priority (or any other priority Company agrees to in writing) for the security interest; and

iii. enabling each of the parties to exercise their respective rights in connection with the security interest.

(h) The Company may recover from the Customer the cost of doing anything under this clause, including registration fees and the costs of notification.

9. PERSONAL GAURANTEE OF COMPANY DIRECTORS OR TRUSTEES

(a)If the Customer is a company or a trust, the Director(s) or Trustees(s) accepting these Terms and Conditions of Supply, in consideration for the Company agreeing to supply the Goods and grant credit to the Customer at their request, also sign these Terms and Conditions of Supply in their personal capacity and jointly and severally personally guarantee as principal debtors to the Company the payment of any and all moneys now or hereafter owed by the Customer to the Company and indemnify the Company against non-payment by the Customer. Any personal liability of a signatory hereto will not exclude the Customer in any way whatsoever from the liabilities and obligations contained in these Terms and Conditions of Supply.  The signatories and the Customer will be jointly and severally liable under these Terms and Conditions of Supply for payment of all sums due hereunder.

10. DELIVERIES

(a) Deliveries may be wholly or partially suspended by the Company during any period in which:

i. The Customer has failed duly to pay any monies owing to the Company within the timeframe as stipulated by the agreed Terms and Conditions of Supply. The Company shall (without prejudice to any other rights of the Company) be fully indemnified by the Customer against all or any loss rising through or in connection with such suspension of delivery and to withhold delivery of any other goods ordered by the Customer until the Customer has paid the amount in dispute in full;

ii. The Company may be prevented or hindered from effecting delivery by its normal means of supply or delivery by normal route by reason of any circumstances outside its reasonable control (including but not limited to strikes, lockouts, shortages of materials, accidents or breakdowns of plants or machinery). The Company may deliver a portion of the Goods and may invoice or otherwise charge the Customer for that portion.  The Customer must not refuse to accept delivery of the Goods or to pay for the Goods because only a portion of the quantity ordered was delivered and the Customer agrees that the Company will not be liable for any loss that the Customer suffers as a result of any delay or cancellation.

(b) The Company shall be under no liability in respect of the damage of goods or incomplete delivery unless the Customer’s written claim is received by the Company within 7 days of receipt of such

(c) The Company will use its reasonable endeavors to deliver the Goods on any date specified or estimated by the Company, however the Customer acknowledges that: (a) these dates are estimates only and the Company is not liable for any loss for not delivering the Goods on the date specified or estimated by the Company; (b) if the Company does not currently stock the Goods, then there may be a delay in the supply of those Goods until the Company has restocks those Goods; and (c) if the Goods need to be delivered urgently or overnight to the Customer, the Company may agree to expedite delivery if the Customer agrees to pay an additional fee for that expedited delivery.

11. PRODUCT LIABILITY

The Company shall not be liable in any way whatsoever whether in contract, tort or otherwise for or in connection with any defects affecting any Goods of the Company or in any delay or any loss damage or injury (whether physical, financial or otherwise) however such defects delay, loss or damage may be caused, whether by the neglect or default of the Company, its officers, employees or agents or otherwise, and whether caused directly, indirectly or otherwise.

12. REPLACEMENT

These Terms and Conditions of Supply shall apply (mutatis mutandis) to any goods supplied by the Company by way of replacement.

13. TERMS

Unless prior arrangements have been made, and confirmed in writing, all sales shall be cash on delivery. Where an agreement for credit payment has been made, the payment terms will be 7 days nett (unless other terms have been specified and agreed to in writing).

14. INTELLECTUAL PROPERTY

(a) The parties acknowledge and agree that, unless otherwise agreed in writing, as between the Company and the Customer, all intellectual property rights in the goods and any material, in respect of goods manufactured by third party manufacturers, has taken reasonable steps to satisfy itself that the possession, use or resale of such goods will not infringe any intellectual property but give no warranty in this respect.

(b) If the Company manufactures specific goods on instructions from the Customer and particularly using drawings supplied by the Customer, the Customer hereby indemnifies the Company against any claim for breach of intellectual property caused by the manufacture or sale of the goods.

15. LIMITATION OF LIABILITY

(a) Any reference to (a) ‘us’, ‘our’, ‘we’ means the Company; (b) ‘you’, ‘your’ means the Customer; (c) ‘Claim’ means any claim, demand, action, proceeding or legal process (including by way of set off, cross-claim or counterclaim); and (d) means loss or damage suffered by a party and arising in connection with or out of your Contract or any supply made under it (whether pleaded in contract, tort, breach of statutory duty or on any other basis, and whether arising from acts or omissions, and whether or not loss or damage the risk of which another party was or should have been aware), including but not limited to (i) economic loss; (ii) business interruption; (iii) loss of revenue, profits, actual or potential business opportunities or contracts; (iv) anticipated savings; (v) loss of profits; (vi) loss of data; (vii) indirect or consequential loss; (viii) an obligation to indemnify another person; and (ix) an obligation to contribute to the compensation of loss or damage suffered by another person.

(b) If the Customer is acquiring or holding itself out as acquiring the Goods and Services for a business purpose, the Consumer Guarantees Act 1993 and the Contract and Commercial Law Act 2017 will not apply to the fullest extent permitted by law.

(c) If goods are supplied subject to the Consumer Guarantees Act 1993 and the Contract and Commercial Law Act 2017, our liability for failure to comply with those acts are limited to:

i. replacing the Goods or supplying equivalent Goods;

ii. repairing the Goods;

iii. paying the cost of replacing the Goods or of acquiring equivalent Goods; or

iv. paying the cost of having the Goods repaired; and

(d) In relation to these services, our liability for failure to comply with a Consumer Guarantees Act 1993 is limited to:

i. supplying the services again; or

ii. paying the cost of having the services supplied again.

iii. If we supply you with Goods or services that are not of a kind ordinarily acquired for personal, domestic or household use or consumption that cost no more than $40,000, and you are told they come with a ‘manufacturer’s warranty’ or ‘one-year product assurance’ or similar, those rights are in addition to, and not instead of, your rights under the Consumer Guarantees Act 1993.

(e) Subject to clauses) any representation, warranty, condition or undertaking (whether in favour of you or of us) that would be implied in your Contract by legislation, common law, equity, trade custom or usage or otherwise is excluded from your Contract to the fullest extent permitted by law.

(f) Subject to the provisions within this clause, the Customer indemnifies the Company, and the Company is not liable to the Customer for any claim, or any loss whether suffered by the Customer or a third party to the fullest extent permitted by law.

MISCELLANEOUS

(a) These Terms and Conditions of Supply are governed by the laws of New Zealand and the parties submit to the non-exclusive jurisdiction of the New Zealand courts.

(b) It is intended by these Terms and Conditions of Supply that the Customer is a legal entity. If that legal entity does not exist, any person signing this document shall be personally liable (and if more than one jointly and severally) to the Company for all amounts payable from time to time to the Company. If that legal entity does exist, then the signatory warrants that it has the power and authority to bind that entity.

(c) The Company reserves the right to withdraw at any time any credit that has been given. If the Company withdraws any credit that has been given the Company may suspend performance of its obligations until it has received payment in advance for any quoted work or subsequent orders.

(d) If any part of these Terms and Conditions of Supply are deemed to be void, illegal, or unenforceable, that part will be severed, and will not affect the validity of the rest of the Terms and Conditions of Supply.

Should this be a quotation or price guide the following information should be noted:

A. All prices are nett ex works and do not include tax or delivery, which are extra at

B. Any quotation is valid from 14 days from the date

C. The Companies condition of sale will apply to any order accepted for delivery by customer unless any alternative terms agreed to in writing by the