Terms of Trade

The following Terms of Trade shall apply In respect of all contracts entered into between the Seller and the Buyer (both as defined in Clause 1) whereby the Seller agrees to provide goods and/or services including manufacture and/or repair (as defined in Clause 1) for the Buyer.

1. Definitions

Unless the context otherwise requires, the following definitions shall apply to these Terms of Trade: Buyer means the entity or person named on any form provided by the Buyer to the Seller (or any person acting on behalf of and with the authority of such entity or person). Credit Account means the account for purchasing goods on credit held by the Buyer with the Seller. Goods or Services means the supply of goods and/or services including manufacture and/or repair undertaken by the Seller and described in the quotation, schedule of works or similar documents. PPSA means the Personal Properties Securities Act 1999 and associated regulations. PPSR means the Personal Properties Securities Register, under the PPSA. Seller means ''6TRIPLE9 INDUSTRIES'' together with its successors and assigns or any person acting on behalf of '6TRIPLE9 INDUSTRIES with the authority of Simon Patrick Mahony.

2. Quotations

2.1 In every situation where the Seller provides to the Buyer a quotation then: a) The acceptance of that quotation by the Buyer includes the acceptance of these Terms of Trade except to the extent that they are in conflict with the express terms of the quotation. b) The Seller reserves the right to request a deposit from the Buyer before supplying any goods or services. The amount of the deposit shall be requested in writing by the Seller. c) The quotation will only include such goods or services as are specified therein. d) Unless previously withdrawn the quotation will be valid for the period stated therein, or where no period is stated for thirty (30) days from the date thereof. e) The quotation will not include the installation or commissioning of equipment unless specifically provided therein.

3. Prices

3.1 Any prices quoted will be net and based on the latest information available to the Seller and will be for delivery ex the Sellers premises. 3.2 Unless otherwise specified prices are based on the rates of exchange or conversion from foreign or overseas currency to New Zealand currency ruling at the date of such quotation and on the rates of the award wages, freight, insurance, duty, cost of materials and transport and other incidental expenses ruling or in force at the date of such quotation. 3.3 Should there be any variation in these rates, costs or expenses between the date of such quotation and the date of payment by the Buyer for the goods or services, such variation shall be advised in writing to the Buyer and for the Buyers account.

4. Payment

4.1 Payment for goods and services charged to a Credit Account, unless otherwise stated, must be paid in full, in New Zealand currency, on or before the 20th of the month following the date of issue of the Seller’s invoice. 4.2 If the Buyer does not have a Credit Account, payment must be made within seven (7) days of the date of invoice or as otherwise stated on the invoice. 4.3 If the Buyer fails to pay the full amount due on or before the due date, the Seller (without prejudice to its other rights and remedies) shall be entitled to charge the Buyer interest on the amount outstanding from the due date until payment. 4.4 Interest will be charged at the rate of 5% per annum and shall be calculated on a daily basis. The Buyer will be liable for any costs, which are incurred by the Seller in the collection of payment. 4.5 The Seller may, at the Seller's sole discretion, stop further performance of the contract, require payment in cash before further performance of the contract, or terminate the contract without notice to the Buyer upon the happening of any of the following events: a) The Buyer defaults in any payment due under the contract or in payment of any monies due by the Buyer to the Seller on any account whatsoever; or b) The Buyer is insolvent or takes any procedure to reschedule any indebtedness; or c) In the Sellers opinion the Buyer is unable to pay indebtedness as it falls due; or d) A receiver or manager is appointed to any property of the Buyer.

5. GST

5.1 All quoted prices are exclusive of GST except where otherwise expressly stated by the Seller at the time of quotation or sale. GST is payable by the Buyer.

6. Descriptive Manner

6.1 All descriptions, illustrations, brochures and advertising material submitted by the Seller to the Buyer do not form part of the contract due to their generality of description. Where a quotation is given by the Seller to the Buyer, then after acceptance of that quotation and where applicable a set of certified drawings will be supplied free of charge. Every reasonable precaution shall be taken to ensure accuracy of weights and dimensions.

7. Consumer Legislation

7.1 Where the provisions of the Consumer Guarantees Act 1993 apply, these terms will be read subject to the application of that Act, and in the case of any conflict, the provisions of the Act apply. 7.2 Where the Buyer is a business (as "business" is defined in the Consumer Guarantees Act 1993), it agrees that it is acquiring all goods and services from the Seller for the purposes of the business, and that the Consumer Guarantees Act 1993 does not apply.

8. Cancellation

8.1 No orders may be cancelled by the Buyer except with the express written consent of the Seller.

9. Returns

9.1 Goods returned for credit will be accepted at the sole and unfettered discretion of the Seller. The Seller must be advised within seven (7) days of the Buyer receiving the goods of the Buyer’s intention to return the goods. 9.2 Any costs associated with the return of the Goods will be at the Buyer’s expense unless otherwise agreed in writing by the Seller.

10. Delays and Variations

10.1 In the event of delays caused by the Buyer in giving instructions, accepting delivery or enabling installation; or in the event of changes required by the Buyer; the contract price may be increased to cover the costs thereby incurred.

11. Regulations and Import Controls

11.1 Any contract formed between the Seller and the Buyer shall be subject to availability of all necessary government approvals, import licences or exchange allocations. If the same are not forthcoming after the Seller has made reasonable efforts to obtain the same or fulfillment of the contract is prevented or impeded by any statute, regulation or requisition, the Seller may at its sole discretion determine the contract and neither party shall have any claim against the other in respect thereof.

12. Dispatch

12.1 Where a period of delivery is quoted that period will commence when the Buyer accepts the quotation or upon granting government approvals or import licences where necessary or upon receipt by the Seller of all necessary information and drawings required by the Seller required to enable performance by the Seller, whichever is the later. 12.2 Under no circumstances shall the Seller be liable for late delivery by reason of fire, strike, stoppages of work, war, government action, transport delays, acts of God, shortages of supply or manufacturer's delays nor for any other cause whatsoever beyond the Seller's reasonable control.

13. Delivery

13.1 Delivery of goods shall be deemed to be made to the Buyer when the goods are dispatched from the Seller's premises. 13.2 If by arrangement the goods are collected by the Buyer or the Buyer’s Agent from the Seller’s premises, then delivery of goods shall be deemed to be made at the time when the Buyer is advised of availability of the goods for dispatch, whether or not the goods are to be installed by the Seller. 13.3 Where it is agreed that the goods are to be delivered by instalments, each delivery shall be regarded as a separate contract and the contract price accordingly shall be paid in instalments proportionate to the value of the goods delivered. 13.4 Advice of non-delivery must be made to the Seller within seven (7) days of receipt of invoice.

14. Risk and Ownership

14.1 Goods are at the sole risk of the Buyer upon delivery in accordance with clause 13 whether received by the Buyer or not and whether or not there is a delay in delivery. 14.2 Notwithstanding delivery of any goods to the Buyer, ownership of such goods shall not pass until the final payment in full for them has been made. 14.3 At any time, the Seller shall have the right, without notice to the Buyer, to set off and discharge in reduction of any monies owing by the Buyer, whether due for payment or not, any monies or accounts held for or owing to the Buyer.

15. Repossession

15.1 If payment for the goods shall not have been made in accordance with Clause 4 hereof, the Buyer gives the Seller or its agents the right to enter upon the property of the Buyer or upon any property to which the goods or any part thereof are located, to seize and take possession of the goods, but the Buyer shall not be released from liability for any payment due. This is without prejudice to the Seller’s other rights and remedies.

16. Buyer Indemnity

16.1 The Buyer shall indemnify the Seller from and against all costs and expenses incurred by the Seller in recovery or collection of the monies due and payable by the Buyer to the Seller hereunder.

17. Freight and Insurance

17.1 All insurance and transportation charges after delivery are the responsibility of the Buyer. Where requested, the Seller will arrange transportation and insurance for the goods on behalf of the Buyer and the cost thereof shall be paid for by the Buyer.

18. Damage or Loss

18.1 Inspection of the goods shall be made by the Buyer immediately upon delivery and in the event of damage; incorrect execution or shortage the Buyer shall immediately notify the carrier in the case of damage or shortage. The Seller shall not be liable for damage or shortage suffered in transit but any insurance arranged under Clause 17 hereof shall apply.

19. Seller’s Guarantee

19.1 Unless otherwise stated in writing the Seller shall make good by replacement or repair (as the Seller chooses) any failure of goods manufactured by the Seller which appears within one (1) month of the date of delivery which is caused solely by faulty workmanship or materials. 19.2 Such making good shall be at the expense of the Seller provided that the Buyer shall be liable for the return of the goods to the Seller or if repairs are carried out on site, the travel and accommodation expenses of the Seller. 19.3 Any repairs requested by the Buyer but found not to be caused solely by the Seller's faulty workmanship or materials shall be at the expense of the Buyer. 19.4 The Seller's obligations under this guarantee is limited to the rectification of defects in goods or services supplied and does not apply to defects caused by misuse, neglect or improper installation by someone else, fair wear and tear of the equipment, the unsuitable site operation and unsatisfactory conditions of use and insufficient protection or other influences beyond the Seller's control. 19.5 Goods included in this quotation which are not manufactured by the Seller shall be excluded from this guarantee but the benefits of any guarantee given by the supplier of those goods shall be extended to the Buyer so far as they are extended to the Seller.

20. Personal Properties Securities Act 1999

20.1 The Buyer acknowledges that this contract creates a security interest in the Goods and, for avoidance of doubt, the proceeds of the sale of the Goods. 20.2 The Buyer will if requested by the Seller, sign any documents, provide all necessary information and do anything else required by the Seller to ensure that the security interest is a perfected purchase money security interest. 20.3 Until payment of the price has been made in full the Buyer acknowledges and agrees that in relation to Goods that are inventory, the Buyer will not allow any non-purchase money security interest to arise in respect of the Goods unless the Seller has perfected the Seller's purchase money security interest prior to the Buyer taking possession of the works. 20.4 The Seller and the Buyer agree that nothing in sections 114(1)(a), 117(1) (c), 120, 121,122, 133 and 134 of the PPSA shall apply to these Terms of Trade. 20.5 The Buyer waives its rights as debtor under sections 116, 119, 120(2), 121,125,126,127,129,131,132 of the PPSA. 20.6 Unless otherwise agreed to in writing by the Seller, the Buyer waives its right to receive a verification statement in accordance with section 148 of the PPSA.

21. Limitation of Liability

21.1 The Seller shall not be liable in contract (save as provided in Clause 20 hereof) or otherwise for any direct or indirect damage, economic loss, special or consequential loss whatsoever arising from or in connection with any goods supplied by the Seller or which the Seller shall fail to supply. The provisions of this clause shall continue to have effect notwithstanding the coming to an end of the contract in any circumstances whatsoever. 21.2 Any warranties which but for the provisions of this clause would be implied herein by statute or otherwise are hereby expressly excluded and in particular in the quotation and the discussions prior and subsequent thereto no representation or warranty is given that the goods or services are fit or suitable for the Buyer's requirements in capacity, performance, and safety or otherwise. Any advice or expressions of opinion are given without liability. 21.3 The Buyer shall assume responsibility for overall performance of any plant or process in which the equipment supplied by the Seller is integrated and unless otherwise agreed the Seller's responsibility is limited to supply of goods or services in accordance with the quotation. 21.4 Hammerdown® Bars has no control over and accepts no liability in respect to incorrect bar installations.

22. Patents

22.1 Orders to the Buyer's design are accepted subject to the Buyer's warranty that no patent, registered design, copyright or other right (whether at common law or by statute) will be infringed in the manufacture or sale thereof, and any condition that the Seller is indemnified by the Buyer against such expenses, damages or losses incurred by the Seller in the consequence of any such infringement.

23. Privacy Act 1993

23.1 The Buyer authorises the Seller to collect, retain and use personal information about the Buyer for the following purposes: a) assessing the Buyer’s creditworthiness; b) administering the Buyer’s orders; c) receiving information from one or more credit reference agencies, concerning the credit history of the Buyer d) disclosing credit-related information to, and using the credit services of, one or more credit reference agencies, on a continuing basis at any time and entirely at its discretion concerning the Buyer’s credit worthiness. 23.2 For the avoidance of doubt, all authorities given above are continuing authorities, to apply throughout the duration of the trading relationship. 23.3 The Buyer if an individual has a right of access to personal information about the Buyer held by the Seller and may request correction of the information.

24. Force Majeure

24.1 Notwithstanding anything in the contract, if the Seller fails to perform any obligation hereby imposed upon it, and such failure shall be caused by fire, strike, stoppages of work, war, government action, transport delays, acts of God, or any act of omission occasioned by any cause beyond the control of the parties invoking the clause, the Seller shall be exempt from all liability to the extent due to or arising from such failure.

25. Disputes

25.1 The Seller and the Buyer agree to use their best endeavours to promptly resolve any disputes between them. If a dispute arises the party claiming that a dispute has arisen shall serve notice on the other party stating the details of the dispute. After receipt of the notice, the parties shall meeting within ten (10) working days and shall attempt in good faith to resolve the dispute. 25.2 If they fail to resolve the dispute within twenty (20) working days of notice of the dispute, either party may take such legal action including the commencement of legal proceedings as deemed appropriate or necessary to resolve or determine the dispute. 25.3 The Buyer agrees that any court proceedings taken against the Seller shall be undertaken in the Court nearest to the Seller, unless a mutually agreed upon alternative is chosen.

26. Buyer’s Guarantee and Indemnity

26.1 The guarantor/s of the Buyer jointly and severally unconditionally guarantee to the Seller the due and punctual payment by the Buyer of all outstanding monies and agree to keep the Seller fully indemnified against all damages, losses, costs and expenses arising from any failure of the Buyer to pay the monies hereby guaranteed.  26.2 As between the Guarantor/s and the Seller the liability of the Guarantor/s shall be deemed to be that of principal debtor. This guarantee is in addition to and no in substitution for any other security or right which the Seller may have in respect to the Buyer’s indebtedness and may be enforced against the Guarantor/s without firs having recourse to any such securities or rights and without taking steps or proceedings against the Buyer. 26.3 The liability of the Guarantor/s shall not be affected by the granting of time, credit or any indulgence or other concession t the Buyer or to any person giving any similar guarantee. 26.4 The guarantee and indemnity in this clause is an irrevocable and continuing guarantee and indemnity and shall remain in full force until all obligations under the Buyer’s credit account have been fully paid, satisfied or performed.

27. General

27.1 Waiver: The Sellers failure or delay to exercise or enforce any right it has under these Terms of Trade shall not operate as a waiver of the Seller’s right to exercise or enforce such right or any other right in the future. 27.2 Confidentiality: Except as required by law the Buyer and the Seller shall preserve as confidential any information of a confidential nature that they acquire in relation to the other. 27.3 Variation: The Seller may at any time and in its sole discretion vary these Terms of Trade with immediate effect, provided that the Seller shall not make any variation to the nature or extent of the security interest granted by the Buyer under clause 20 without written agreement of the Buyer. The Seller may notify the Buyer by delivering the Buyer an invoice with a notice of amendment and receipt of that invoice will be deemed acceptance by the Buyer of these Terms of Trade as amended. 27.4 No Partnership: Notwithstanding any provision of these Terms of Trade, the Seller and Buyer agree that the relationship between them is not and shall not be construed to be a partnership. 27.5 Further Acts: The Buyer shall execute all documents and do all acts and things as may reasonably be required by the Seller to carry into effect the matters contemplated by these Terms of Trade. 27.6 Entire Agreement: Unless expressly provided otherwise in any written agreement between the Seller and the Buyer, these Terms of Trade and the application for Credit Account to which these Terms of Trade relate constitute the entire agreement between the Seller and the Buyer relating to the supply of goods and services by the Seller to the Buyer and upon signing these Terms of Trade, the Buyer shall be bound by these Terms of Trade on each and every order made by that Buyer under that Credit Account. 27.7 Notice: Any letter or notice given under these Terms of Trade will be validly and sufficiently given if sent by pre-paid post, facsimile or electronic mail to the address details notified by one part to the other from time to time. A notice sent by post shall be deemed to have been received on the third working day following the day of posting. A notice sent by facsimile or electronic mail shall be deemed to have been received on the date specified on the facsimile transmission receipt or email delivery receipt.  27.8 No terms or conditions stipulated by the Buyer shall annul or vary these Terms of Trade except insofar as expressly agreed to by the Seller in writing. 27.9 Joint and Several: Where there is more than one Buyer the covenants on their part shall be deemed to be joint and several covenants. 27.10 Words importing the singular shall be deemed to include the plural and vice versa and words importing the neuter gender shall include the masculine and feminine genders. 27.11 Each provision of these Terms of Trade is severable in whole or in part and if any provision is held to be illegal or unenforceable for any reason, only the illegal or unenforceable provision shall be affected and the remainder of these Terms of Trade shall remain in full force and effect. 27.12 Governing Law: These Terms of Trade and the application for credit account to which these Terms of Trade relate shall be construed in accordance with and be governed by the laws of New Zealand and the Seller and the Buyer submit to the non-exclusive jurisdiction of the New Zealand Courts. 27.13 The Buyer agrees that they will not on sell any of the goods to any person or entity in USA and Canada.