1.1 “Agent” means Shuk Engineering Distributors Limited, its successors and assigns or any person acting on behalf of and with the authority of Shuk Engineering Distributors Limited.
1.2 “Customer” means the person/s buying the Goods as specified in any invoice, document or order, and if there is more than one Customer is a reference to each Customer jointly and severally.
1.3 “Goods” means all Goods or Services supplied by the Agent to the Customer at the Customer’s request from time to time (where the context so permits the terms ‘Goods’ or ‘Services’ shall be interchangeable for the other).
1.4 “Price” means the Price payable for the Goods as agreed between the Agent and the Customer in accordance with clause 6 below.
2.1 The Customer is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Customer places an order for or accepts delivery of the Goods.
2.2 These terms and conditions may only be amended with the Agent’s consent in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the Customer and the Agent.
2.3 These terms and conditions are meant to be read in conjunction with the Terms and Conditions posted on the Agent’s website. If there are any inconsistencies between these documents then the terms and conditions contained in this document shall prevail.
2.4 None of the Agent’s agents or representatives are authorised to make any representations, statements, conditions or agreements not expressed by the manager of the Agent in writing nor is the Agent bound by any such unauthorised statements.
2.5 The Customer acknowledges that all descriptive specifications, illustrations, drawings, data, and dimensions stated in the Agent’s fact sheets, price lists or advertising material, are approximate only and are given by way of identification only. The Customer shall not be entitled to rely on such information, and any use of such does not constitute a sale by description, and does not form part of the contract, unless expressly stated as such in writing by the Agent;
3. Authorised Representatives
3.1 Unless otherwise limited as per clause 3.2 the Customer agrees that should the Customer introduce any third party to the Agent as the Customer’s duly authorised representative, that once introduced that person shall have the full authority of the Customer to order any materials or Works on the Customer’s behalf and/or to request any variation to the works on the Customer’s behalf (such authority to continue until all requested works have been completed or the Customer otherwise notifies the Agent in writing that said person is no longer the Customer’s duly authorised representative).
3.2 In the event that the Customer’s duly authorised representative as per clause 3.1 is to have only limited authority to act on the Customer’s behalf then the Customer must specifically and clearly advise the Agent in writing of the parameters of the limited authority granted to their representative.
3.3 The Customer specifically acknowledges and accepts that they will be solely liable to the Agent for all additional costs incurred by the Agent (including the Agent’s profit margin) in providing any works, materials, Works or variation/s requested by the Customer’s duly authorised representative (subject always to the limitations imposed under clause 3.2 (if any)).
4. Electronic Transactions Act 2002
4.1 Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 22 of the Electronic Transactions Act 2002 or any other applicable provisions of that Act or any Regulations referred to in that Act.
5. Change in Control
5.1 The Customer shall give the Agent not less than fourteen (14) days prior written notice of any proposed change of ownership of the Customer and/or any other change in the Customer’s details (including but not limited to, changes in the Customer’s name, address, contact phone or fax number/s, or business practice). The Customer shall be liable for any loss incurred by the Agent as a result of the Customer’s failure to comply with this clause.
6. Price and Payment
6.1 At the Agent’s sole discretion the Price shall be either:
(a) as indicated on any invoice provided by the Agent to the Customer; or
(b) the Price as at the date of delivery of the Goods according to the Agent’s
current price list; or
(c) the Agent’s quoted price (subject to clause 6.2) which will be valid for the
period stated in the quotation or otherwise for a period of thirty (30) days.
6.2 The Agent reserves the right to change the Price in the event of a variation to the Agent’s quotation. Any variation from the plan of scheduled Services or specifications (including, but not limited to, in the event that overseas transactions increase as a consequence of variations in foreign currency rates of exchange and/or international freight and insurance charges or as a result of increases to the Agent in the cost of the Goods) will be detailed in writing and charged for on the basis of the Agent’s quotation and will be shown as variations on the invoice. Payment for all variations must be made in full at their time of completion.
6.3 At the Agent’s sole discretion a deposit may be required.
6.4 Time for payment for the Goods being of the essence, the Price will be payable by the Customer on the date/s determined by the Agent, which may be:
(a) on delivery of the Goods;
(b) by way of instalments/progress payments in accordance with the Agent’s
(c) for certain approved Customers, due twenty (20) days following the end of the month in which a statement is posted to the Customer’s address or address for notices;
(d) the date specified on any invoice or other form as being the date for payment; or
(e) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Customer by the Agent.
6.5 Payment may be made by cash, cheque, bank cheque, electronic/on-line banking, or by any other method as agreed to between the Customer and the Agent.
6.6 Unless otherwise stated the Price does not include GST. In addition to the Price the Customer must pay to the Agent an amount equal to any GST the Agent must pay for any supply by the Agent under this or any other agreement for the sale of the Goods. The Customer must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Customer pays the Price. In addition the Customer must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.
7. Delivery of Goods
7.1 Delivery (“Delivery”) of the Goods is taken to occur at the time that:
(a) the Customer or the Customer’s nominated carrier takes possession of the Goods at the Agent’s address; or (b) the Agent (or the Agent’s nominated carrier) delivers the Goods to the Customer’s nominated address even if the Customer is not present at the address.
7.2 At the Agent’s sole discretion the cost of delivery is either included in the Price or is in addition to the Price.
7.3 The Customer must take delivery by receipt or collection of the Goods whenever they are tendered for delivery. In the event that the Customer is unable to take delivery of the Goods as arranged then the Agent shall be entitled to charge a reasonable fee for redelivery and/or storage.
7.4 The Agent may deliver the Goods in separate instalments. Each separate
instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.
7.5 Any time or date given by the Agent to the Customer is an estimate only. The Customer must still accept delivery of the Goods even if late and the Agent will not be liable for any loss or damage incurred by the Customer as a result of the delivery being late.
8.1 Risk of damage to or loss of the Goods passes to the Customer on Delivery and the Customer must insure the Goods on or before Delivery.
8.2 If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Customer, the Agent is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by the Agent is sufficient evidence of the Agent’s rights to receive the insurance proceeds without the need for any person dealing with the Agent to make further enquiries.
8.3 If the Customer requests the Agent to leave Goods outside the Agent’s premises for collection or to deliver the Goods to an unattended location then such Goods shall be left at the Customer’s sole risk.
8.4 Where the Customer is to supply the Agent with any design specifications (including, but not limited to CAD drawings) the Customer shall be responsible for providing accurate data. The Agent shall not be liable whatsoever for any errors in the Goods that are caused by incorrect or inaccurate data being supplied by the Customer
9.1 The Agent and the Customer agree that ownership of the Goods shall not pass until:
(a) the Customer has paid the Agent all amounts owing to the Agent; and
(b) the Customer has met all of its other obligations to the Agent.
9.2 Receipt by the Agent of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised.
9.3 It is further agreed that:
(a) until ownership of the Goods passes to the Customer in accordance with
clause 9.1 that the Customer is only a bailee of the Goods and must return the Goods to the Agent on request.
(b) the Customer holds the benefit of the Customer’s insurance of the Goods on trust for the Agent and must pay to the Agent the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed.
(c) the Customer must not sell, dispose, or otherwise part with possession of the Goods other than in the ordinary course of business and for market value. If the Customer sells, disposes or parts with possession of the Goods then the Customer must hold the proceeds of any such act on trust for the Agent and must pay or deliver the proceeds to the Agent on demand.
(d) the Customer should not convert or process the Goods or intermix them with other goods but if the Customer does so then the Customer holds the resulting product on trust for the benefit of the Agent and must sell, dispose of or return the resulting product to the Agent as it so directs.
(e) the Customer irrevocably authorises the Agent to enter any premises where the Agent believes the Goods are kept and recover possession of the Goods.
(f) the Agent may recover possession of any Goods in transit whether or not
delivery has occurred.
(g) the Customer shall not charge or grant an encumbrance over the Goods nor grant nor otherwise give away any interest in the Goods while they remain the property of the Agent.
(h) the Agent may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Customer.
10. Personal Property Securities Act 1999 (“PPSA”)
10.1 Upon assenting to these terms and conditions in writing the Customer
acknowledges and agrees that:
(a) these terms and conditions constitute a security agreement for the purposes of the PPSA; and
(b) a security interest is taken in all Goods previously supplied by the Agent to the Customer (if any) and all Goods that will be supplied in the future by the Agent to the Customer.
10.2 The Customer undertakes to:
(a) sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which the Agent may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register;
(b) indemnify, and upon demand reimburse, the Agent for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register or releasing any Goods charged thereby;
(c) not register a financing change statement or a change demand without the prior written consent of the Agent; and
(d) immediately advise the Agent of any material change in its business practices of selling the Goods which would result in a change in the nature of proceeds derived from such sales.
10.3 The Agent and the Customer agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms and conditions.
10.4 The Customer waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA.
10.5 Unless otherwise agreed to in writing by the Agent, the Customer waives its right to receive a verification statement in accordance with section 148 of the PPSA.
10.6 The Customer shall unconditionally ratify any actions taken by the Agent under clauses 10.1 to 10.5.
11. Security and Charge
11.1 In consideration of the Agent agreeing to supply the Goods, the Customer charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Customer either now or in the future, to secure the performance by the Customer of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
11.2 The Customer indemnifies the Agent from and against all the Agent’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising the Agent’s rights under this clause.
11.3 The Customer irrevocably appoints the Agent and each director of the Agent as the Customer’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 11 including, but not limited to, signing any document on the Customer’s behalf.
12. Customer’s Disclaimer
12.1 The Customer hereby disclaims any right to rescind, or cancel any contract with the Agent or to sue for damages or to claim restitution arising out of any inadvertent misrepresentation made to the Customer by the Agent and the Customer acknowledges that the Goods are bought relying solely upon the Customer’s skill and judgment.
13.1 The Customer shall inspect the Goods on delivery and shall within seven (7) days of delivery (time being of the essence) notify the Agent of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Customer shall afford the Agent an opportunity to inspect the Goods within a reasonable time following delivery if the Customer believes the Goods are defective in any way. If the Customer shall fail to comply with these provisions the Goods shall be presumed to be free from any defect or damage. For defective Goods, which the Agent has agreed in writing that the Customer is entitled to reject, the Agent’s liability is limited to either (at the Agent’s discretion) replacing the Goods or repairing the Goods.
13.2 Goods will not be accepted for return other than in accordance with 13.1 above.
13.3 Upon receipt of your Order Confirmation, any discrepancies in pricing must be addressed within 7 days as no negotiation on pricing will be entered into after this time.
14.1 For Goods not manufactured by the Agent, the warranty shall be the current warranty provided by the manufacturer of the Goods. The Agent shall not be bound by nor be responsible for any term, condition, representation or warranty other than that which is given by the manufacturer of the Goods.
14.2 To the extent permitted by statute, no warranty is given by the Agent as to the quality or suitability of the Goods for any purpose and any implied warranty, is expressly excluded. The Agent shall not be responsible for any loss or damage to the Goods, or caused by the Goods, or any part thereof however arising.
15. Consumer Guarantees Act 1993
15.1 If the Customer is acquiring Goods for the purposes of a trade or business, the Customer acknowledges that the provisions of the Consumer Guarantees Act 1993 do not apply to the supply of Goods by the Agent to the Customer.
16. Intellectual Property
16.1 Where the Agent has designed, drawn or developed Goods for the Customer, then the copyright in any designs and drawings and documents shall remain the property of the Agent.
16.2 The Customer warrants that all designs, specifications or instructions given to the Agent will not cause the Agent to infringe any patent, registered design or trademark in the execution of the Customer’s order and the Customer agrees to indemnify the Agent against any action taken by a third party against the Agent in respect of any such infringement.
16.3 The Customer agrees that the Agent may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings or Goods which the Agent has created for the Customer.
17. Default and Consequences of Default
17.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at the Agent’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
17.2 If the Customer owes the Agent any money the Customer shall indemnify the Agent from and against all costs and disbursements incurred by the Agent in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, the Agent’s collection agency costs, and bank dishonour fees).
17.3 Without prejudice to any other remedies the Agent may have, if at any time the Customer is in breach of any obligation (including those relating to payment) under these terms and conditions the Agent may suspend or terminate the supply of Goods to the Customer. The Agent will not be liable to the Customer for any loss or damage the Customer suffers because the Agent has exercised its rights under this clause.
17.4 Without prejudice to the Agent’s other remedies at law the Agent shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to the Agent shall, whether or not due for payment, become immediately payable if:
(a) any money payable to the Agent becomes overdue, or in the Agent’s opinion the Customer will be unable to make a payment when it falls due;
(b) the Customer becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer.
18.1 The Agent may cancel any contract to which these terms and conditions apply or cancel delivery of Goods at any time before the Goods are delivered by giving written notice to the Customer. On giving such notice the Agent shall repay to the Customer any money paid by the Customer for the Goods. The Agent shall not be liable for any loss or damage whatsoever arising from such cancellation.
18.2 In the event that the Customer cancels delivery of Goods the Customer shall be liable for any and all loss incurred (whether direct or indirect) by the Agent as a direct result of the cancellation (including, but not limited to, any loss of profits).
18.3 Cancellation of orders for Goods made to the Customer’s specifications, or for nonstocklist items, will definitely not be accepted once production has commenced, or an order has been placed.
19. Privacy Act 1993
19.1 The Customer authorises the Agent or the Agent’s agent to:
(a) access, collect, retain and use any information about the Customer;
(i) (including any overdue fines balance information held by the Ministry of
Justice) for the purpose of assessing the Customer’s creditworthiness; or
(ii) for the purpose of marketing products and services to the Customer.
(b) disclose information about the Customer, whether collected by the Agent from the Customer directly or obtained by the Agent from any other source, to any other credit provider or any credit reporting agency for the purposes of providing or obtaining a credit reference, debt collection or notifying a default by the Customer.
19.2 Where the Customer is an individual the authorities under clause 19.1 are authorities or consents for the purposes of the Privacy Act 1993.
19.3 The Customer shall have the right to request the Agent for a copy of the information about the Customer retained by the Agent and the right to request the Agent to correct any incorrect information about the Customer held by the Agent.
20. Unpaid Seller’s Rights
20.1 Where the Customer has left any item with the Agent for repair, modification, exchange or for the Agent to perform any other service in relation to the item and the Agent has not received or been tendered the whole of any moneys owing to it by the Customer, the Agent shall have, until all moneys owing to the Agent are paid:
(a) a lien on the item; and
(b) the right to retain or sell the item, such sale to be undertaken in accordance with any legislation applicable to the sale or disposal of uncollected goods.
20.2 The lien of the Agent shall continue despite the commencement of proceedings, or judgment for any moneys owing to the Agent having been obtained against the Customer.
21.1 The failure by the Agent to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect the Agent’s right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
21.2 These terms and conditions and any contract to which they apply shall be governed by the laws of New Zealand and are subject to the jurisdiction of the New Plymouth Courts of New Zealand.
21.3 The Agent shall be under no liability whatsoever to the Customer for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by the Agent of these terms and conditions (alternatively the Agent’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Goods).
21.4 The Customer shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Customer by the Agent nor to withhold payment of any invoice because part of that invoice is in dispute.
21.5 The Agent may license or sub-contract all or any part of its rights and obligations without the Customer’s consent.
21.6 The Customer agrees that the Agent may amend these terms and conditions at any time. If the Agent makes a change to these terms and conditions, then that change will take effect from the date on which the Agent notifies the Customer of such change. The Customer will be taken to have accepted such changes if the Customer makes a further request for the Agent to provide Goods to the Customer.
21.7 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.
21.8 The Customer warrants that it has the power to enter into this agreement and has obtained all necessary authorisations to allow it to do so, it is not insolvent and that this agreement creates binding and valid legal obligations on it.