Terms of service
In these Terms of Trade (Terms) we have used “we”, “us” and “our” to refer to ICETEC Limited and “you” or “your” to refer to our customer. By agreeing to acquire Goods from us you agree to these Terms to the exclusion of your terms (if any). All Goods supplied by us to you are subject to these Terms. For the purposes of these Terms, Goods means all goods to be provided by us to you and includes any associated services that we may provide to you.
1. ORDERING AND QUOTATIONS
1.1 We shall provide a proposal or other quotation for Goods to you (Quotation). To order the Goods set out in the Quotation, you must sign and return the Quotation to us. Each signed Quotation we receive from you is an offer subject to acceptance by us. Quotations may be accepted by us in whole or part. Acceptance of Quotations is at our sole discretion.
1.2 Unless otherwise specified in the Quotation, a Quotation will be open for acceptance by you within thirty (30) days from the date of the relevant Quotation and thereafter is automatically deemed to be withdrawn by us.
1.3 On receipt of a signed Quotation, we may accept and confirm the relevant Quotation in writing. Once a Quotation has been accepted by us, it is final and binding on you and may not be changed or cancelled by you without our prior written consent. You acknowledge and agree that, where a final and binding Quotation is changed or cancelled by you, we may charge you for any costs and expenses incurred and loss of profits suffered by us in respect of the relevant Quotation up to the date of cancellation.
1.4 We may withdraw, cancel or amend any Quotation which in our opinion is impractical or uneconomic to supply at any time prior to acceptance of the relevant Quotation by us.
2. DELIVERY
2.1 Goods will be deemed to be delivered when delivered by us to your premises or such other location as nominated by you in writing or when collected by you or one of your employees, contractors or agents from our premises or such other location as nominated by us in writing. If you fail or refuse or indicate to us that you will fail or refuse, to take or accept delivery, then the Goods shall be deemed to have been delivered when we were willing and able to deliver them. We may deliver Goods by instalments.
2.2 Any quotations of delivery times by us are estimates only and not binding on us. We will not be liable to you for any non-delivery or delay in delivery. Any non-delivery or delay in delivery will not entitle you to cancel any Quotation or refuse to accept delivery or to make payment.
2.3 We will not consider any claim that all of the Goods ordered have not been delivered unless you make a written claim to us in accordance with clause 3.1.
2.4 We may, without prejudice to our other remedies, charge you reasonable storage and transport expenses if you fail or refuse to take or accept delivery of any Goods ordered by you and delivered by us.
3. CLAIMS
3.1 You will inspect all Goods at the time of delivery to you and notify us in writing giving full particulars of any shortage, damaged, defective or non-conforming Goods within seven (7) days from, and inclusive of, the date of delivery of the relevant Goods provided that such notice must be given prior to the Goods being dealt with or subject to any treatment by you whatsoever.
3.2 You will, if required by us, make the relevant Goods available at your premises for inspection and testing.
3.3 Any claim is subject to acceptance by us in writing and to the exclusions set out in the Product Warranty (as defined in clause 7) provided that, any claim that is, in our reasonable opinion, resultant from any misuse, tampering with, willful damage, abuse or similar treatment of the Goods by you is expressly rejected.
3.4 For any accepted claim, we shall (at our election), repair or replace the relevant Goods (or reperform any services), or credit you with an amount equal to their price (exclusive of any delivery, installation, validation, storage, insurance, duties and taxes) provided that we will not be required to remediate any damaged or defective Goods until such time that we have obtained a remedy in respect of such damage or defect from the manufacturer of the Goods.
3.5 Where we are not at fault in respect of a claim, any costs in relation to returning and restocking the relevant Goods to us or the manufacturer of the Goods (including any such costs charged to us by the manufacturer of the Goods) and any other related costs will be borne by you and immediately payable by you on written demand by us.
3.6 If notice is not given to us within the time specified in clause 3.1, the Goods will be deemed to be accepted by you and you shall be solely responsible for any claims arising from any shortage, defects, damage or alleged damage to the Goods no matter how caused.
4. TITLE AND RISK
4.1 We shall retain title to the Goods we supply (and you will be bailee only in respect of the Goods) until they have been paid for in full and you have performed all your other obligations under these Terms. Until title to the Goods has passed to you, you will safely and securely store and maintain any delivered Goods in substantially the same condition they were received in, and you will ensure the Goods are identified in such a way that they are clearly our property.
4.2 Until you have paid us in full for the Goods, you may not sell (unless such sale is in the ordinary course of your business), dispose of or charge the Goods and you must hold or deal with the Goods for and on behalf of us. If the Goods are sold, in the ordinary course of your business, prior to title passing to you, the proceeds of that sale will be our property and held by you in a separate bank account on trust for and on behalf of us to the extent of all amounts owing by you to us.
4.3 Risk in all Goods passes to you when the Goods are delivered to you. You shall insure the Goods for their full price, and shall not sell, dispose or part with possession of them or do anything else inconsistent with our ownership of the Goods (other than a sale of the Goods in the ordinary course of your business), from delivery until title in them passes to you.
5. PRICE
5.1 The price of the Goods is set out in the Quotation, subject to any variation pursuant to clause 5.3. Unless otherwise stated, all prices are plus GST and other taxes and duties, which shall be paid by you and are in New Zealand dollars.
5.2 All delivery, installation, validation, packaging, storage, and other relevant costs shall be charged to your account as set out in the Quotation, invoice or other document issued by us to you.
5.3 Each Quotation is based on information available to us at that time and we reserve the right to increase the price quoted if our costs (including, without limitation, the cost of supply, labour, materials, transport, tax, duties, exchange rates or any other costs affecting the cost of the Goods to us) or the specifications change between the date of the Quotation and the date of delivery of the relevant Goods to you. Unless otherwise agreed in writing, prices are quoted exclusive of GST.
5.4 For the avoidance of doubt, the price set out in a Quotation is valid only for the stated validity period of the relevant Quotation. Where a Quotation is accepted by you outside such validity period, the price set out in the Quotation may be increased by us by notice in writing to you.
6. PAYMENT
6.1 Unless otherwise agreed in writing by us, you must pay for Goods in full prior to their delivery.
6.2 We may require you to pay a deposit where specified in a Quotation, being an advanced payment for the Goods supplied before those Goods are delivered.
6.3 We are under no obligation to supply Goods to you on credit. If we grant you credit, you agree to pay our invoices by the 20th of the month following the date of the invoice or such other date as may be agreed by us in writing. Any discount as set out in the Quotation, invoice or other document issued by us to you is conditional on these payment terms.
6.4 You agree to give any further securities as we may from time to time require, in the form required by us, and to comply with all of your obligations under those securities.
6.5 We may notify you at any time that we are going to stop supplying Goods to you on credit. This shall be without prejudice to your obligation to pay amounts owing.
6.6 All payments shall be made in full without set-off or deduction. Receipt of a cheque, bill of exchange, or other negotiable instrument will not constitute payment and you remain liable for payment until payment is received by us. We may apportion payments to outstanding accounts as we see fit.
7. PRODUCT WARRANTY
7.1 Where applicable, we will provide you with the benefit of the Product Warranty on all Goods, subject always to the limits and exclusions in the Product Warranty.
7.2 Where you are “in trade” (as that term is defined in the Consumer Guarantees Act (“CGA”)), you may provide your customers with the benefit of the relevant Product Warranty in respect of the Goods (if any). To the extent permitted by law, you will seek to limit your liability, and the liability of us and any other party, in accordance with the terms of the Product Warranty (including, without limitation, including in all terms and conditions entered into between you and your customers a provision contracting out of the CGA where your customer is “in trade” (as that term is defined in the CGA)).
7.3 Subject to clause 3.1 and 8, you will receive, process and administer any claim made by a customer under the Product Warranty.
7.4 You will indemnify us against any claim or liability which is made against or incurred by us, whether under the Product Warranty or in any other way, arising directly or indirectly from any warranties or representations that are made by you or any of your employees, contractors or agents that are contrary or in addition to the provisions of the Product Warranty or from any failure by you to limit liability in accordance with clause 7.2.
7.5 At our sole discretion, we may perform any work for which a supplier/manufacturer is liable under Product Warranty, provided that any costs arising as a result of a Product Warranty claim that we are not liable for and/or which are the result of misuse, tampering with, willful damage, abuse or any other cause outside of our control will be charged to you for immediate payment.
7.6 For the purposes of these Terms, Product Warranty means the warranty in respect of the Goods given by any supplier and/or manufacturer of the Goods (if any) which is able to be provided by us to you in respect of the Goods.
8. AFTER SALES REPAIRS
8.1 All repairs that are required to be carried out by us under the terms of the Product Warranty or as otherwise required by law must be carried out in strict accordance with our directions and requirements and by such persons (whether us, you or a service organisation that has been authorised and approved by us) as notified to you in writing. No repairs may be carried out by you (or any other person) unless the repairs and service organisation have been authorised and approved in writing by us. If an unauthorised repair is carried out, we shall not be liable for the cost of such repair.
8.2 You will indemnify us against any claim or liability which is made against, or incurred by, us, whether under the Product Warranty or in any other way, arising directly or indirectly from a breach by you of clause 8 and, without limitation, from any faulty or defective workmanship in the repair of Goods carried out by you in accordance with clause 8.1.
9. DEFAULT
9.1 You will be in default if:
a. you fail to pay an amount due under these Terms by the due date for payment; or
b. you commit a breach of any of your other obligations under these Terms or the terms of any other contract you have entered into, or enter into in the future, with us or one of our related entities; or
c. you become insolvent, are wound up, have a receiver, statutory manager or administrator appointed, enter into any composition or arrangement with your creditors, do any act which would render you liable to be placed in liquidation or have a receiver, statutory manager or administrator appointed over your property, commit an act of bankruptcy, cease to be of full legal capacity, or die;
d. Goods that we have retained title to are at risk; or
e. an event or a series of events (whether related or not) occurs which, in our opinion, may cause a material adverse change in your ability to meet your obligations to us.
9.2 If you are in default then we may, at our option, do any one or more of the following:
a. charge you default interest at 12% per annum on any late payments calculated on a daily basis from the due date for payment until the date payment is received;
b. require you to remedy the default in the manner and within a period that we tell you;
c. require you to pay to us all amounts you owe us immediately;
d. suspend or terminate your account with us;
e. enforce security interests created by these Terms;
f. exercise any rights that we have under these Terms or that are available to us at law.
9.3 We may suspend or terminate your account with us at any time in our sole discretion. If your account is terminated, you must immediately pay us any amount you owe us. Termination will not affect any of our rights that have arisen before termination.
9.4 Any costs, expenses, disbursements, and legal costs incurred by us in the enforcement or attempted enforcement of any rights contained in these Terms shall be paid by you, including any solicitor’s fees (on a solicitor and own client basis) or debt collection fees.
10. PERSONAL PROPERTY SECURITIES ACT 1999 (“PPSA”)
10.1 Clause 4.1 creates a security interest in Goods we supply to you.
10.2 You hereby grant a security interest to us in all Goods as security for payment of the price for those Goods and for any other amounts or obligations owing by you to us from time to time. You shall not grant any other security interest or any lien over Goods that we have a security interest in.
10.3 At our request you shall promptly sign any documents and do anything else required by us to ensure our security interest constitutes a first ranking perfected security interest and a purchase money security interest in the Goods.
10.4 We may at any time enter your premises and properties to uplift Goods that we have a security interest in and you indemnify us against any costs, losses, damages or expenses arising as a result of us taking any action pursuant to this clause.
10.5 If Goods that we have a security interest in are processed, included or dealt with in any way causing them to become accessions, processed or commingled Goods, our security interest will continue in the whole in which they are included. You shall not grant any other security interest or any lien in either the Goods or in the whole.
10.6 You waive any rights you may have under Part 9 of the PPSA, including, without limitation, any rights you may have under sections 114(1)(a), 116, 120(2), 121, 125, 126, 127, 129, 131, 133, and 134 of the PPSA. You further agree that where we have rights in addition to those under Part 9 of the PPSA, those rights will continue to apply.
10.7 You waive your right to receive a copy of any verification statement (as that term is defined in the PPSA).
10.8 You shall give us prior written notice of any proposed change of your name or address.
10.9 Any terms used in this clause which are defined in the PPSA have the meanings given to them under or in the context of the PPSA.
11. WARRANTIES
11.1 The CGA, the Fair Trading Act 1986 (“FTA”) and other statutes may impose warranties, conditions or obligations upon us which cannot by law (or which can only to a limited extent by law) be excluded. Except as expressly provided for in clause 7.1, we exclude all such imposed warranties, conditions or obligations to the extent permitted by law and exclude any warranty, condition or obligation imposed or implied under common law, equity, custom or the trade or otherwise.
11.2 Where you acquire Goods from us “in trade” (as that term is defined in the CGA and the FTA) both parties acknowledge and agree that: the Goods are both supplied and acquired in trade; the parties agree to contract out of sections 9 (misleading and deceptive conduct generally), 12A (unsubstantiated representations), 13 (false or misleading representations) and 14(1) (false representations and other misleading conduct in relation to land) of the FTA; and all warranties, conditions and other terms implied by the CGA or the sections of the FTA referenced above are excluded from these Terms to the fullest extent permitted by law. The parties agree that the exclusions contained in this clause are fair and reasonable.
12. LIABILITY AND INDEMNITY
12.1 Except as expressly otherwise provided for in these Terms or in the case of our negligence or wilful breach of these Terms, we shall not be liable for any loss or damage or liability of any kind whatsoever (including consequential, indirect or special loss or lost profit or business) whether suffered or incurred by you or another person and whether in contract, or tort, or otherwise and whether such loss or damage arises directly or indirectly from Goods or services provided by us to you.
12.2 To the extent that we are liable for any reason for any loss suffered or liability incurred by you arising from any breach of these Terms or for any other reason, such liability is limited to the amount of the price of the Goods concerned.
12.3 You indemnify us from any claim against us by your employees, agents, contractors, customers or any other persons in respect of any loss, damage or injury arising from any cause relating to or concerning the Goods and any liability or cost incurred by us as a result of any breach by you of any provision of these Terms.
13. INTELLECTUAL PROPERTY
13.1 Nothing in these Terms shall be construed as granting you any intellectual property rights. The sale of any Goods shall not, unless expressly agreed otherwise, give you the right to use, sell, disseminate or duplicate any of our trademarks, copyrights, designs or any other intellectual property rights. For the purposes of this clause and clause 14, "Intellectual Property" means all intellectual property rights including, without limitation, copyright, patent and design rights, drawings, documents, data, ideas, procedures, calculations and all other statutory and common law rights and interests.
14. CONFIDENTIALITY
14.1 You shall at all times treat as confidential all non-public information and material received from us and shall not publish, release, or disclose the same without our prior written consent. For clarity, confidential information includes any new Intellectual Property and prices.
15. PRIVACY OF INFORMATION
15.1 You authorise us to collect, retain and use information about you from any person for the purpose of assessing your credit worthiness and to disclose information about you to any person who guarantees, or who provides insurance, or who provides any other credit support, in relation to your obligations to us and to such persons as may be necessary or desirable to enable us to exercise any power or enforce or attempt to enforce any of our rights, remedies and powers under these Terms.
15.2 You consent to us, or any financier or credit-rating agency, making enquiries of and obtaining any information about your financial standing and credit worthiness.
15.3 If you are a natural person, the Privacy Act 1993 entitles you to have access to personal information held by us about you and to request correction of that personal information.
16. DISPUTES
16.1 If any party has any claim, dispute or difference with the other party in connection with these Terms (other than a dispute in relation to payment to which this clause shall not apply) that party will promptly give notice of the dispute with full written particulars to the other party and the parties will promptly meet together and in good faith try and resolve the dispute. If the dispute is not resolved within fourteen (14) days (or any longer period agreed by the parties in writing) after the date of notice of the dispute, either party may refer the dispute to arbitration by a single arbitrator in accordance with and subject to the AMINZ Arbitration Protocol. The arbitration will be commenced by a party giving notice in writing to the other party requiring the dispute to be referred to arbitration. The arbitrator will be appointed by the parties or failing agreement within fourteen (14) days after the date of notice of arbitration, will be appointed at the request of a party by the President of the Arbitrators’ and Mediators’ Institute of New Zealand Inc or the President’s nominee.
16.2 Neither party is prevented from applying to a Court at any stage for such interim, injunctive or other relief that cannot be obtained through the arbitral process.
16.3 The parties must continue to comply with their obligations under these Terms during the dispute resolution process.
16.4 Nothing in this clause prevents us from taking any legal action to enforce payment of any debt due. And nothing in this clause 16 will affect the parties’ rights, if any, under the Construction Contracts Act 2002.
17. FORCE MAJEURE
17.1 We shall not be liable for delay or failure to perform our obligations under these Terms if the cause of delay or failure is beyond our reasonable control.
18. NOTICES
18.1 Any notice, document, request, demand or other communication ("Notice") to be given for the purposes of these Terms must be in writing and may be served personally or sent by pre-paid post or email to the address or email address of the relevant party as specified in the Customer Credit Application Form (or such other address or email address as a party may notify the other party in writing from time to time).
19. GENERAL
19.1 These Terms are governed by the laws of New Zealand.
19.2 These Terms replace any earlier representations, warranties, understandings, and agreements (whether oral or written), and together with the Customer Credit Application Form, constitute the entire agreement between us and you relating to their subject matter.
19.3 You must pay our costs (including legal costs, as between solicitor and client) of and incidental to the enforcement or attempted enforcement of our rights, remedies and powers under these Terms.
19.4 You shall not transfer or assign your rights, powers or obligations under these Terms without our prior written consent.
19.5 Each party shall make all applications, execute all documents, and do or procure all other acts and things reasonably required to implement and to carry out its obligations under, and the intention of, these Terms.
19.6 No delay, failure or forbearance by a party to exercise (in whole or in part) any right, power or remedy under, or in connection with, these Terms will operate as a waiver of such right, power or remedy.
19.7 If any provision of these Terms is or becomes unenforceable, illegal or invalid for any reason it will be deemed to be severed from these Terms without affecting the validity of the remainder of the Terms and will not affect the enforceability, legality, validity or application of any other provision of these Terms.
19.8 These Terms and the Customer Credit Application Form may be executed in two or more counterpart copies which, read together, will constitute one and the same instrument. A party may enter into the documents by executing a counterpart and exchanging scanned pdf copies or delivering it to the other parties.
19.9 If you have entered into these Terms as the trustee of a trust (and you have no right or interest in any assets of the trust except in your capacity as trustee of the trust), your liability under these Terms shall be limited to, and shall be satisfied out of, the assets from time to time under your control as a trustee of the trust. This clause does not limit any liability you have to us as a personal guarantor.
19.10 We may change these Terms at any time. Any change applies from when we notify you of that change.
19.11 At no time do you have any right to contact any supplier or provider of Goods to us without our express permission in writing.