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ECLIPSE ENGINEERING LIMITED - TERMS AND CONDITIONS OF QUOTATION AND/OR SALE
1.1. In these Conditions:
Buyer means any legal person or entity, firm, trust, individual or agent thereof to whom the Seller's quotation or acknowledgement of order is addressed.
Conditions means the Terms and Conditions of Quotation and/or Sale set out in this document together with any special terms agreed in writing pursuant to it.
Contract means any contract between the Seller and the Buyer for the sale and purchase of Goods or Services.
Goods means the products (including any parts or accessories) and/or materials to be supplied by the Seller.
Seller means Eclipse Engineering Limited (Company No. 2108123).
Services means any work whatsoever contracted by the Buyer and undertaken by the Seller.
2. APPLICABILITY OF CONDITIONS
2.1. The Buyer accepts that these Conditions shall govern relations between the Buyer and the Seller to the exclusion of any other terms and conditions.
2.2. No variation of these Conditions or of any quotation or Contract arising herefrom shall be valid unless agreed to in writing by a director of the Buyer.
2.3. Any variation made by the Seller shall take effect 7 working days following notification unless the Buyer has opted to cancel in this period.
3.1. No Contract between the Seller and the Buyer shall arise from the Seller's quotations unless the Seller has accepted in writing the Buyer's order pursuant to the quotation.
3.2. Quotations are valid for 30 calendar days from the date issued unless cancelled or the time frame is amended by the Seller in writing.
3.3. The Seller reserves the right to vary any quotation where unforeseen circumstances have arisen following issuance of the original quotation.
3.4. Any variation to a quotation shall remain valid for 30 working days from the date of variation.
4.1. Prices in a quotation, price list, catalogue or similar matter shall be for guidance only.
4.2. All Prices are quoted exclusive of GST.
4.3. The Contract price shall be the price current at the date of delivery of the Goods and/or Services.
4.4. Where a quotation is subject to information supplied by the Buyer or the Buyer's nominee, any additional cost resulting from any variation, inaccuracy or omission on the Buyer's part shall be borne by the Buyer alone.
4.5. The cost of any special packaging or handling caused by the Buyer's requirements or requests shall be payable in addition to the Contract price.
4.6. Any tax or duty imposed on the production, storage, sale, transportation, or use of the Goods shall be payable in addition to the Contract price.
5.1. Except as provided for by the Seller in writing, payment of Goods or Services in full shall fall due on the 20th of the month following the date stated on the invoice, or the date of delivery of Goods or Services, whichever the sooner. Where an exception is stated in writing, time for payment shall be of the essence.
5.2. Late payment shall attract interest at 2.5% per month on the unpaid balance which shall accrue before and after judgment until paid but without prejudice to any other rights or remedies at law or equity.
5.3. The Buyer shall have no right of equitable set-off in respect of any payment due to the Seller except as provided for in writing by a director of the Buyer.
5.4. The Buyer shall be liable for all costs or disbursements associated with debt collection, including debt-collection or legal fees, on a solicitor-and-own-client basis.
6. PERSONAL PROPERTY SECURITIES ACT 1999 (PPSA)
6.1. The Buyer hereby grants the Seller a security interest (including, where necessary, a Purchase Money Security Interest) in all Goods supplied to the Buyer pursuant to any Contract, or any after-acquired property in replacement of the Goods in question, until payment of the Contract is made in full to the Seller.
6.2. The Buyer hereby covenants to take all such action (including execution of documents) as may be necessary to register, administer to and enforce this security interest.
6.3. The Buyer and Seller agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these Conditions.
6.4. The Buyers waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, 131, 132 and 148 of the PPSA.
7.1. Unless otherwise specified, delivery of Goods shall be the responsibility of the Buyer.
7.2. Where the Goods are sold ex-works or ex-store, delivery shall be on collection of the Goods from the Seller's place of manufacture or store.
7.3. The costs of carriage and any insurance which the Buyer directs the Seller to incur shall be borne by the Buyer, and this debt shall fall due on the date of payment.
7.4. Delivery of Goods to a carrier, whether engaged by the Buyer or the Seller, shall be deemed to be a delivery of the Goods to the Buyer, and the carrier shall be deemed the Buyer's agent.
7.5. The failure of the Buyer's agent, carrier, courier, or other bailee to deliver the Goods shall not entitle the Buyer to treat this contract as cancelled.
7.6. In all cases, the risk of loss or damage to the Goods shall pass to the Buyer at the time of delivery.
7.7. The Buyer acknowledges that delivery of any property to the Seller by a third party at the Buyer's instruction is undertaken at the Buyer's risk, and hereby indemnifies the Seller against all costs associated with any damage or loss.
8. INTELLECTUAL PROPERTY
8.1. The Seller retains all intellectual property (including copyright) in all documents, drawings, designs or deliverables prepared by the Seller. The Buyer is entitled to use them or copy them only for the purpose for which they are intended and only if they have paid all amounts owing to the Seller.
8.2. The Buyer warrants that the Seller's use of any information, property or equipment of whatsoever nature provided directly or indirectly by the Buyer will not infringe any intellectual property rights of a third party.
8.3. The Buyer hereby indemnifies the Seller against all damages, penalties, fines or expenses of whatsoever nature arising as a result of the Seller infringing on any patent, registered design, copyright, trademark or other intellectual property of any third party.
9.1. No cancellation of any order shall be accepted by the Seller unless the cancellation is received by the Seller in writing, and the Buyer pays:
a. the cost to the Seller of work completed in connection with the order up to the time of receipt of the notice of cancellation;
b. the cost of any items or materials specifically bought by the Seller that cannot reasonably be used elsewhere by the Seller; and
c. any other costs and liabilities which the Seller incurs prior to the Buyer's cancellation.
9.2. Notwithstanding clause 9.1, the Seller will not accept any cancellation where the order falls within one of the following categories:
a. orders where the Buyer and Seller agree on a delivery period of four weeks or less from the date of the order;
b. any other order where the purported cancellation is within six weeks of the expiry of that delivery period.
10.1. Any notice under the Contract shall be in writing and be deemed served:
a. in the case of any email (or letter sent by email) or facsimile, at the time of transmission of the email from the sender's email address;
b. in the case of any facsimile, at the time of receipt of the facsimile;
c. in the case of any letter sent by ordinary post, 2 working days after the date of posting to the receiving party's last known address.
11. NO WARRANTY
11.1. The Seller makes no representation, condition, warranty or promise, express or implied, in respect of Goods or Services supplied to the Buyer. The provisions in the Consumer Guarantees Act 1993 do not apply to the extent the Buyer is acquiring Goods and Services from the Seller for the purposes of a business in terms of section 2 and 43 of that Act.
11.2. Without limiting clause 11.1, should the Seller be found by any Court or Tribunal to be liable for a breach of any of its obligations, this liability shall be limited to damages not exceeding the value of the Goods or Services supplied.
11.3. Except as provided by the Consumer Guarantees Act 1993, where the Buyer purchases Goods or Services for a particular purpose, it is the Buyer's sole responsibility to ensure that the Goods or Services will be suitable for that purpose, and the Seller shall have no liability whatsoever in the event that the Goods or Services are not fit for that purpose, notwithstanding any statements made to the Buyer by the Seller or its officers or employees or agents.
11.4. At its sole discretion, the Seller may repair, replace or remedy Goods or Services that in its assessment do not conform to acceptable trade standards.
12. LIMITATION OF LIABILITY
12.1. Except as provided by the Consumer Guarantees Act 1993, the Seller shall not be liable in tort (including negligence), contract or any other head for any loss or liability of any kind whatsoever suffered by the Buyer or its directors, employees, agents, contractors, customers or other persons as a result of any breach of the Seller's obligations regarding the supply of Goods or Services or any negligence on the part of Seller, its directors, employees, agents or contractors.
12.2. Should the Seller be found by any Court or Tribunal to be liable for a breach of any of its obligations under these Conditions or any Contract and for any reason the Seller is unable to rely on the limitation of liability in clause 12.1, then the liability of the Seller whether in relation to contract, tort (including negligence) or otherwise to the Buyer is limited to the value of the Goods or Services supplied under the relevant Contract.
12.3. The Seller is not liable to the Buyer for any special, indirect or consequential damage or loss of any kind under any cause of action arising under or in connection with the provision of the Goods or Services to the Buyer.
12.4. The Buyer indemnifies the Seller and its directors, employees, agents and contractors against any loss or liability suffered or incurred at any time by the Seller that is directly or indirectly caused by a breach of the Buyer's obligations under any Contract or these Conditions.
12.5. Where property of any type is provided by the Buyer to the Seller, the Buyer hereby indemnifies the Seller against any loss to any person arising directly or indirectly through damage, loss or destruction of the property while in the possession of the Seller, and warrants that it has insured that property.
12.6. The Buyer hereby indemnifiers the Seller against any claim made by the Buyer's employees, agents, contractors, customers or other persons.
13. FORCE MAJUERE
13.1. Neither party will be liable to the other for any failure to perform its obligations under these Conditions or any Contract by reason of any cause or circumstance beyond the party's reasonable control including, acts of God, communication line failures, power failures, riots, strikes, lock-outs, labour disputes, fires, war, flood, earthquake or other disaster, pandemic (including COVID-19), epidemic or governmental action after the date of this Agreement but excluding lack of funds for any reason (Force Majeure Event). The party affected must:
a. notify the other party as soon as practicable after the Force Majeure Event occurs and provide full information concerning the Force Majeure Event including an estimate of the time likely to be required to overcome it.
b. use its best endeavours to overcome the Force Majeure Event; and
c. continue to perform its obligations as far as practicable.
13.2. If a Force Majeure Event continues for longer than 6 months then the Seller may terminate any Contract by giving the Buyer no less than 30 days prior written notice.The Seller will not be liable for any loss or damage whatsoever arising from such cancellation.
14. ABANDONED PROPERTY
14.1. Any Goods or other property left by the Buyer in the custody of the Seller which remain unclaimed by the Buyer for a period of 30 days following the date on which written notice indicating that such goods are available for collection is sent by the Seller to the last known address of the Buyer shall thereafter be deemed abandoned and may be disposed of as the Seller sees fit and the Buyer shall have no further right of claim thereto.
15. ASSIGNMENT AND SUBCONTRACTING
15.1. The Seller may assign novate or transfer its rights and obligations under any Contract or these Conditions at any time without the consent of the Buyer.
15.2. The Seller reserves the right to subcontract all or any part of the work to be performed under any Contract.
16. PERSONAL GUARANTEE
16.1. The Buyer by signing any Contract to which these Conditions apply acknowledges that each contract for Goods or Services with the Seller contains a personal guarantee granted by the authorising signatory.
16.2. The guarantor indemnifies the Seller against all costs, losses, expenses and liabilities (including legal expenses on a full indemnity basis) incurred or sustained by the Seller as a consequence of the Buyer defaulting on its obligations to the Seller.
16.3. The guarantor is deemed to be principal debtor and liable as though the guarantor were the Buyer (notwithstanding that, as between guarantor and Buyer, the guarantor is guarantor and surety).
16.4. In acting as guarantor and surety for the Buyer, the guarantor acknowledges that this is a continuing guarantee which applies in respect of all Goods or Services to be supplied to the Buyer.
16.5. The guarantor acknowledges that the Seller has absolute discretion to release or discharge the guarantor from liability under this guarantee, whether partially or in full, without prejudicing or affecting the Seller' legal rights against the Buyer.
17. PRIVACY ACT 2020
a. to verify the Buyer's and any guarantor's identity for the purpose of providing the Goods and/or Services to the Buyer;
b. to market the Seller's services and products to the Buyer, including contacting the Buyer electronically (e.g. by text or email for this purpose);
c. to improve the services and products that the Seller provides to the Buyer;
d. to any credit reference agency to undertake credit checks on the Buyer and any guarantor (if necessary) and to provide credit reporting services or to exercise any power of enforcement under these Conditions;
e. to any business that supports the Seller's services and products (including any person that hosts or maintains any underlying IT system or data centre that the Seller uses to provide its website or other services and products); and
f. to other third parties (for anonymised statistical information).
17.2. The authorities under clause 16.1 are authorities or consents for the purposes of the Privacy Act 2020.
18.1. To waive a right under these Conditions or any Contract that waiver must be in writing and signed by the waiving party.
18.2. If there is any conflict between these Conditions or any Contract and any other agreement between the parties then the provisions of these Conditions or any Contract will prevail unless the Seller agrees otherwise in writing.
18.3. Any benefits expressly conferred on any third parties named or referred to in these Conditions or any Contract are intended to be enforceable by those third parties for the purposes of section 12 of the Contract and Commercial Law Act 2017.
18.4. Any illegality, unenforceability or invalidity of a provision of these Conditions does not affect the legality, enforceability or validity of the remaining provisions of these Conditions.
18.5. These Conditions and any Contract to which they apply are governed by the laws of New Zealand and are subject to the jurisdiction of the courts of New Zealand.