ENDRAULIC LIMITED TERMS OF TRADE

1.0 PRICE AND ORDERS

1.1 The Price shall be increased by the amount of any GST and other taxes and duties which may be applicable, except to the extent that such taxes are expressly included in any quotation given by the Seller.
1.2 Alterations to any Price shall be effective from the date specified by the Seller at the time of giving notice to the Buyer
1.3 There is no obligation on the Seller to inquire as to the authority of any person placing an Order on behalf of the Buyer.

2.0 PAYMENT
2.1 Payment of the Price is due by the 20th of the month following the date of invoice for approved account holders.
2.2 The Buyer may not withhold payment or make any deductions from any Amount Owing without the Seller’s prior written consent.

3.0 DELIVERY
3.1 Where the Goods are supplied “Free into the Buyers Store”, the Seller shall deliver, or arrange delivery of, the Goods to the destination specified in the Order or Order Acknowledgement and pay any transportation costs incurred as a result,
3.2 Where the Goods are supplied “Ex-works the Seller”, delivery shall take place at the time when the Goods are made available for despatch at the Seller’s premises. If the Seller subsequently arranges transportation of the Goods:

• the Seller does this as the Buyers agent;

• the Buyer must pay the Seller the costs of this service; and

• the Buyer shall indemnify the Seller for any liability incurred by the Seller in providing this service.

3.3 Any time stated for delivery is an estimate only. The Seller has the right to nominate a suitable time for loading the Goods onto a delivery vehicle, taking into account weather conditions and safety matters, and the Seller is not liable for any delay in delivery.
3.4 In all circumstances whatever the agreed method of delivery is, it shall be the responsibility of the Buyer at its cost to unload the Goods, or to arrange for a suitable means of unloading the Goods, from the relevant delivery vehicle.
3.6 The Seller may deliver the Goods by instalments
3.7 lf the Buyer refuses to accept delivery of any of the Goods, the Seller may charge the Buyer for any additional costs incurred as a result, including storage, insurance, and transportation costs.

4.0 RISK AND SECURITY
4.1 Risk of any loss, damage or deterioration of or to the Goods passes to the Buyer on delivery.
4.2 Ownership of the Goods remains with the Seller and does not pass to the Buyer until the Buyer pays the Price and all other moneys owing to the Seller from time to time, whether In relation to this contract or any other contract with the Seller (“Buyer’s Indebtedness”).
4.3 While Ownership of the Goods remains with the Seller:

• the Seller authorises the Buyer (as the Seller’s agent, but with no authority to represent to any other person that it is the Seller’s agent and without the Seller being bound by or liable under the contracts with third Parties to which the Buyer is a party) in the ordinary course of its business to use the Goods and to sell any Goods for full consideration. This authority is revoked from the time that an Event of Default occurs, or the Seller, notifies the Buyer that this authority is revoked;

• the Seller, as the Buyers agent for the purpose of this clause, may use reasonable force to enter the premises where the Goods are stored and remove them. The Seller shall exercise reasonable care in entering and removing such Goods, but shall not be liable for any damage caused by the use of reasonable force. The Seller may resell any Goods and apply the proceeds of sale in reduction of the Buyers indebtedness as the Seller thinks fit.

4.4 The Seller may apply any payments received from or on behalf of the Buyer (where the Buyer has not specified the purpose of the payment) in reduction of the Buyer’s Indebtedness as the Seller think fit.
4.5 If any Goods are resold before ownership of those Goods has passed to the Buyer, the proceeds of such sale shall be received and held by the Buyer in trust for the Seller to the extent of the Buyer’s Indebtedness and claimable by the Seller in the event of the Buyer’s default.
4.6 The Seller may bring an action for the Price of the Goods even where Ownership of the Goods has not passed to the Buyer.
4.7 The Buyer must insure and keep insured with a reputable insurance company all Goods in its possession or control from time to time against risk of loss or damage by hazards normally insured against.
4.8 For the purposes of this clause 4 and in any case in which Goods are processed before repayment of the Buyer’s Indebtedness, the term “Goods” includes products, parts or components which can be identified as being substantially derived from the Goods supplied by the Seller.
4.9 In respect of any Goods supplied to a Buyer in New Zealand:

• the Buyer grants to the Seller a security Interest under the PPSA in all the Goods the Seller agrees to sell to the Buyer under any contract as security for payment of the Buyer’s Indebtedness and for the performance from time to time of the Buyer’s other obligations to the Seller under the relevant contract. The Buy shall not create or allow to be created a lien over any of the Goods whilst under its ownershipor control.

• the Seller may allocate all amounts received from the Buyer in any manner it determines Including any manner required to preserve any purchase money security interest in the Goods; and the Buyer agrees that to the extent permissible under the PPSA, the Seller excludes its obligations to the Buyer under the PPSA in respect of any contract for the sale of goods, or the security under such contracts, and the Buyer waives all its rights against the Seller to the extent permissible under the PPSA.
   

5.0 WARRANTIES
5.1 All new parts supplied by Endraulic Ltd are warranted for 6 months from date of invoice.
5.2 Parts returned will be tested/investigated by Endraulic Ltd, and parts that are that are found to be defective in manufacture will be replaced, repaired or credited at Endraulic Ltd’s discretion, these are the sole remedies available to the Buyer for default by the Seller. Any parts found to have been damaged or misused will not be replaced or credited. Warranty does not cover any costs incurred by the customer including return freight.
5.3 To the extent permitted by law, the Seller expressly excludes liability for any Claim by the Buyer or any other person relating to or arising from the supply of the Goods which is not expressly accepted by the Seller in writing and the Buyer agrees to indemnify the Seller against any such claim.
5.4 In any event, the Seller’s liability arising out of any Claim or otherwise under this contract shall not exceed the Price of the Goods. No claim may be made against the Seller for consequential damages or loss of profits.
5.5 The only guarantees agreed to by the Seller are those confirmed by the Seller in writing.
5.6 In respect of any Goods supplied to a Buyer registered In New Zealand:

• Goods are acquired by the Buyer for business purposes and the Consumer Guarantees Act 1993 does not apply;

• the Buyer agrees to indemnify the Seller against any liability or cost incurred by the Seller under the Act as a result of any breach by the Buyer of its obligations under the Act to any person; and

• nothing in these terms is Intended to have the effect of contracting out of the provisions of the Act except to the extent permitted under that Act.

5.7 New machinery and attachments warranties are as per the specific manufacturer’s warranty policy. Please refer to the specific policy for the manufacturer, you can request a copy by emailing info@endraulic.co.nz, you must include your make, model and serial number. 5.8 Used parts, machinery or attachments are sold as is where is, no warranty is given or implied.

6.0 DEFAULT
6.1 If an Event of Default occurs:

• the Seller may suspend or terminate this contract;

• any Amount Owing shall immediately become due and payable notwithstanding that the due date has not arisen; and

• the Seller is entitled to recover from the Buyer all costs that the Seller may incur in attempting to collect the Amount Owing and any other monies owing by the Buyer to the Seller from time to time, whether in relation to any contract or on any other account whatsoever.

6.2 If the Buyer does not pay the Price by the due date, the Seller may charge a default penalty calculated at a rate per annum equal to 7% above the 30 day NZD bank bill rate at 10:45am on the due date, and calculated on a daily basis on the unpaid portion of the Price from due date until payment in full, plus GST, and all costs incurred in collecting the debt.

7.0 PAYMENT VALIDITY
7.1 The Buyer acknowledges that the Seller continues to supply the Buyer on condition that all payments received by the Seller from the Buyer are valid and made in the ordinary course of the Buyer’s business.
7.2 The Buyer acknowledges that the Seller receives all payments in the ordinary course of the Buyer s business, in good faith and in the reasonably held belief as to the validity of those payments unless and until the Buyer gives notice in writing to the Seller:

• of the Buyer’s then inability to pay its due debts; and

• that the Buyer’s intention or purpose in making any such payment is to enable the Seller to receive more toward satisfaction of its debt than it would otherwise have received or have been likely to have received in any liquidation of the Buyer. Until receipt of such notice, the Seller shall be entitled to assume that all payments received from the Buyer are made in t he ordinary course of the Buyer’s business.

7.3 The Buyer acknowledges that the Seller has, by accepting each payment from the Buyer on due date, altered its position in reliance on the validity of that payment by:

• the continued supply by the Seller to the Buyer after the receipt of such payment, whether or not those Goods are paid for by the Buyer:

• using the payment for the Sellers own purposes; and

• by foregoing its right to take action against the Buyer pursuant to the security interest in the relevant Goods under the PPSA (if any), and against any guarantor in relation to the late payment.
   

8.0 MEDIATION
8.1 Either party may require any dispute arising which has not been resolved within 14 days to be referred to mediation. The mediator shall be appointed by both parties or, where the parties cannot agree within 14 days, in the case of a dispute in New Zealand appointed by the chairperson or any other office holder of the New Zealand chapter of LEADR. The mediator shall conduct the mediation in accordance with the guidelines agreed between the parties or, if the parties cannot agree within 14 days following appointment of the mediator, in accordance with the guidelines set by the mediator. The costs and expenses of the mediator shall be shared by the parties equally.

9.0 OTHER AGREEMENTS
9.1 If there is any inconsistency between these terms and any Order submitted by the Buyer (whether in writing, verbally or otherwise) or any other arrangement between the parties, these terms prevail unless otherwise agreed in writing by the parties.

10.0 WAIVER
10.1 lf the Seller exercises or fails to exercise any right or remedy available to it, this shall not prejudice the Seller’s rights in exercising that or any other right or remedy unless expressly specified In writing and signed by an authorised representative of the Seller.

11.0 NO ASSIGNMENT
11.1 The Buyer must not transfer or assign its rights under this contract to anyone else without the Seller’s prior consent In writing.

12.0 GOVERNING LAW
12.1 All contracts for Goods supplied to a Buyer registered in New Zealand shall be governed by the laws of New Zealand and the parties submit to the non-exclusive jurisdiction of the Courts of New Zealand.

13.0 WORDS USED IN THIS CONTRACT
13.1 “Amount Owing” means the Price charged by the Seller for the Goods, and any other sums which the Seller is entitled to charge under this contract.
13.2 “Buyer” means the person purchasing the Goods from the Seller pursuant to this contract, including that persons successors and assigns
13.3 “Claim: includes any claim:

• for loss of profits; or

• for any consequential, indirect or special loss, damage or injury of any kind suffered by any person arising directly or Indirectly from:

• any breach of the Seller’s obligations under this contract; or

• any cancellation of this contract; or

• any negligence, misrepresentation or other act or omission by the Seller or its employees, agents contractors; or

• for compensation, demand, remedy, liability or action

13.4 an “Event of Default means an event where:

• the Buyer fails to comply with the terms of this contract or any other contract with the Seller; or

• the Buyer a commits an act of bankruptcy; or

• the Buyer enters into any composition or arrangement with its creditors;or

• if the Buyer Is a company: the Buyer does anything which would make it liable to be put into liquidation; or

• a resolution is passed or an application is made for the liquidation of the Buyer; or

• a receiver or statutory or official manager Is appointed over all or any of the Buyer’s assets.

13.5 “Force Majeure Event” means the compliance by either party with an order or request of any governmental provincial, local, public or military authority or person purporting to act therefore which is beyond their control or by reason of acts of God, fire, explosions, earthquakes, volcanic eruptions, storms, wars, hostilities, public disorders quarantine restrictions, embargoes, strikes or other disturbances, or by reason of any other cause beyond its control whether or not similar to any of the foregoing.
13.6 “Goods” means all goods ordered by the Buyer and supplied by the Seller under these terms (as detailed on each invoice issued to the Buyer) and includes any services forming part of the supply of the goods.
13.7 “Ownership” means the properly in and legal and beneficial ownership.
13.8 “Order Acknowledgement” means the acceptance of an Order given by the Seller to the Buyer whether by written notification or otherwise.
13.9 “Order” means an order placed by the Buyer with the Seller for the purchase of Goods.
13.10 “Person includes a corporation, association, firm, company, partnership or individual,
13.11 “Price” means the purchase price of the Goods confirmed by the Seller In writing or otherwise and any costs payable by the Buyer under this contract relating to transportation, storage and insurance.
13.12 “PPSA” means the Personal Property Securities Act 1999.
13.13 Seller means Endraulic its successors or assigns that may supply the Goods from time to time
13.14 References to any legislation includes as amended, re-enacted or substituted and any statutory Instruments, regulations and orders issued under such legislation.

14.0 PARTS RETURNS POLICY
14.1 All parts returns must be within 30 days of invoice. Non-stocked items may not be returned. The customer is responsible for freight to return items. All returns will be subject to a 15% restocking charge with a minimum $25+GST charge per item, unless the return is for a warrantable defect. Returned parts and their packaging must be unopened and in a saleable condition, if not Endraulic Ltd will assess the parts on a case by case basis and advise amount to be credited, if any.