Terms-and-Conditions-for-ProQuip.pdf
Proquip Solutions Limited Terms and Conditions
To the extent permitted by law, all second hand plant is offered in an as is condition unless otherwise stated
Second hand or previously used equipment is offered for purchase based on the availability of such items at
time of Proquip’s purchase order confirmation.
The terms specified below l apply to all contracts for the supply of goods and/or services between you
and us.
1. THIS AGREEMENT
1.1. In these terms, unless less contrary to context:
(a) Agreement mean the agreement constituted by these terms, the Letter, Purchase Order
accepted by PSL and which relates to the Letter, and any other document the parties agree
in writing forms part of the agreement.
(b) Client means the party specified in a Letter or in any of PSL’s other form of proposal, quote
or purchase order, as the buyer of PSL’s products and services.
(c) Deposit means the amount specified under the Letter, Purchase Order or other agreement
with the Client as the deposit payable by the Client.
(d) Guarantor(s) means the party specified in a Letter or in any of PSL’s other form of proposal,
quote or purchase order, as the guarantor of the Client’s obligations under the Agreement.
(e) Letter means PSL’s letter of proposal for the sale of PSL products and services as described
in that proposal document.
(f) Price means the price for the Products and Services (as the case may be).
(g) Products means the PSL products described in the Letter, to which a Purchase Order has
been issued and accepted by PSL.
(h) PSL means Proquip Solutions Ltd (CN 922066).
(i) Purchase Order means PSL form of purchase order for the purchase of products and
services under a Letter and signed by the Client.
(j) Services means the PSL services described in the Letter to which a Purchase Order has
been issued and accepted by PSL.
1.2. Any reference to:
(a) “we”, “our” or “us” or similar term, is a reference to PSL; and
(b) “you” or “your” or similar term is a reference to the Client.1.3. This Agreement sets out the terms on which we will provide Services to you. PSL will treat you as
having accepted this Agreement, and you are deemed to have accepted it, if you:
(a) continue to instruct us after you receive it; or
(b) in relation to a Letter, provide to us a Purchase Order which we accept; or
(c) pay PSL the Deposit for goods and services the subject of the relevant Letter, Purchase Order
accepted by PSL or other written agreement accepted by PSL.
2. OUR SERVICES
2.1. We will provide to you the Products and the Services for the Price on the terms and condition set out
in the Agreement.
2.2. We will use all reasonable efforts to complete the Services and provide the Products within any
agreed time frame but you acknowledge and agree that:
(a) time frames and delivery or performance schedules are approximate only and are not legally
binding; and
(b) PSL is not liable for any claim, loss, expense, cost or damage attributable to any delay to
deliver Products or perform the Services..
3. WHAT YOU AGREE TO DO
3.1. You are responsible for:
(a) determining that the Services and/or Products are adequate and fit for your particular
purposes and needs;
(b) providing us with all reasonable and necessary assistance so that we can provide the
Services or Products to you, such as timely and reasonable and unobstructed access to your
premises, facilities, networks, information and representatives;
(c) designating one or more competent of your representatives who possess suitable skill,
knowledge, and/or experience to oversee the provision of the Services and the delivery of the
Products;
(d) making timely decisions in connection with the Services and Products;
(e) providing us with such of your material, plant or equipment that we require and accurate, up
to date and complete information that we consider is necessary for us to provide the Services
and supply the Products and otherwise perform our obligations under the Agreement; and
(f) ensuring that you update us with changes to any of the information that have you provided to
us.
4. YOU ACKNOWLEDGE THAT
4.1. Our ability to provide the Services and supply the Products depends on you meeting your
responsibilities and performing your obligations under this Agreement.
4.2. We will rely on your information, the decisions you make and any approvals you give and you
acknowledge and agree that we are under no obligation to make enquiries as to the accuracy and
completeness of the information you provide or the reasons or rationale for any decisions you make
or approvals you give.
5. OUR RESPONSIBILITY TO YOU
5.1. To the extent permitted by law, PSL is not liable for any consequential or indirect loss or liability
including loss of profit, loss of revenue, loss of savings, economic loss, loss of opportunity, damage
to property, personal injury or death, whether in contract, or tort (including in negligence), or
otherwise and whether such loss or damage arises directly or indirectly from the Client’s purchase,
use or reliance of the Products or Services.
5.2. To the extent that PSL is liable to the Client for any reason for any loss suffered or liability incurred
by the Client arising from any breach of the Agreement or for any other reason, PSL limits its liability
to the amount paid by the Client in relation to the Products or Services the subject of the claim.
6. PERSONAL INFORMATION AND ELECTRONIC COMMUNICATION
6.1. We will collect, store, and disclose any Personal Information provided to us in connection with the
Services and the Products in accordance with the Privacy Act 2020.
6.2. If you provide us with any personal information of a third party, you confirm that you have collected
that personal information in accordance with the Privacy Act 2020 and the individual concerned has
authorised the disclosure to and use of their personal information by us for the purpose for which
you disclose it to us.
6.3. You indemnify us for loss, cost, expense or damage incurred by, or any claim or action brought
against, us in connection with your disclosure to us of the personal information of any individual.
7. INTELLECTUAL PROPERTY
Unless we agree otherwise in writing, we will retain ownership of the intellectual property rights in our work
undertaken in connection with the provision of the Service and supply of the Products, including work
deliverables such as drawings, designs, operating manuals, technical documents, proposals, quotes,
pricing and any material or documents. Except for reports on the relevant Products and Services, we
have no obligation to provide any of our work to you or any other person.
8. HEALTH AND SAFETY
8.1. You agree to comply with the Health and Safety at Work Act 2015 and all regulations, rules,
standards, approved codes of practice and any other applicable law relating to health and safety.
8.2. You agree to identify and advise us and our representatives of all hazards which arise in your
workplace, or any other site where you direct us to perform the Services and/or deliver Products and
which may present a risk to representatives when attending on your workplace or other site. You
agree to manage those risks in accordance with all applicable law and, so far as is reasonably
practicable, either eliminate or mitigate those risks.
8.3. You agree to notify WorkSafe New Zealand (or equivalent body) and us of any notifiable event (as
defined in the Act) arising out of the conduct of your business which concerns any of our
representative or other personnel.
8.4. We agree to consult, co-operate and co-ordinate activities where we share health and safety duties
in relation to the same matters.
9. PRICE
9.1. The Client acknowledges and agrees that in relation to a quotation provided by PSL to the Client:
(a) the quotation is based on:
i the rates and conditions as at the date of the quotation; and
ii information received from the Client up to the date of the quotation;
(b) the quotation may change where circumstances occur outside of PSL’s control or where
information that the Client provides is incorrect or not complete;
(c) PSL reserves the right to change the quotation up to the date of delivery of the relevant
Products or performance of the relevant Services:
i where PSL’ cost of goods and services changes after the issue of the quotation due
to the imposition of any new government surcharges
ii where there is a change in PSL’s labour, materials, equipment and contractors costs,
or a change in its supplier’s costs;
iii where there is a variation to the Products’ composition, or a change is required to be
made to the manufacturing process or procedure of the relevant Products;
iv if there is a change to the rates of duty, charge, levy or tax set out in the quotation or
applicable to the relevant Products and Services, arising as a result of a change in law
or regulation or of any government direction or order;
v where a change is required to be made to any of the Products or spare parts, or in the
performance of any Service, due to a change of or the introduction of any law,
regulation, code or standard; or
vi if there is a variation in the rates of exchange on imported goods affecting the prices
set out in the quotation.
(d) unless otherwise provided for in writing, quotations remain open for acceptance by the Client
for a period of 30 days from the date of the Quotation; and
9.2. Despite clause 9.1(d), PSL may withdraw a quotation at any time prior to the Client’s acceptance.
9.3. Subject to the terms of the relevant quotation, the Client may accept a quotation by:
(a) providing to PSL a signed Purchase Order before the expiry date for acceptance, or otherwise
confirming its acceptance in writing; and
(b) making payment of the Deposit to PSL by its due date (if required),
provided that a quotation is not considered accepted, and a Purchase Order is not binding on PSL,
until PSL accepts and approves the Purchase Order in writing.
9.4. In the absence of a quotation, PSL’s goods and services will be priced at PSL’s then current rates
and as otherwise set out in its price list.
10. CHANGE OF SPECIFICATION AND DRAWINGS
10.1. After receipt of a Purchase Order the PSL reserves the right, without notice or liability, to:
(a) undertake such changes, as PSL may deem expedient or necessary for the improvement of
machinery, equipment; and
(b) substitute any equipment item for another equipment item if in PSL’s opinion it does not
reduce or detract from the quality, functionality and performance of the original equipment
item.
10.2. The Client acknowledges and agrees that:
10.3. weights, dimensions, capacities, prices, technical and other data listed in catalogues and other
printed matter constitutes an approximate guide and are not binding on PSL; and
10.4. drawings are supplied as guidelines only and are not binding on PSL nor are they to be used or
relied on for any purpose, other than for information only purposes, including for building
construction.
10.5. PSL retains all rights of ownership and title in all drawings, manuals, technical documents, proposals
and any other documents, including all intellectual property rights in such documents, provided to
the Client in connection with PSL’s supply of the Products or performance of the Services under the
Agreement.
10.6. Except as otherwise provided for in the Agreement, the Client is granted a non-exclusive, nontransferable royalty free license to use the documents referred to in clause 10.5 solely in connection
with the Products provided or Services supplied under the Agreement.
11. LOCAL DUTIES AND TAXES
11.1. Unless otherwise agreed in writing, all prices quoted or submitted by PSL are exclusive of any
customs charges, tariff duties, port charges, AQIS permits (Australia), location taxation or import
levies VAT or GST and any other like duties, levies or taxes.
12. QUOTATION
12.1. In relation to quotations provided by PSL, the Client acknowledges and agrees that:
(a) PSL provides work scope estimations relating to the Services;
(b) PSL makes various assumptions which relate to the nature and type of Products and Services
to be provided, including assumptions as to the condition, layout and state of the Client’s site,
equipment, plant and materials and the capability of the Client’s personnel;
(c) the quotation may provide an outline of the estimated prices or rates for each discrete item of
work, goods or services,
(d) with reference to the specific Products and Services to which they relate, and all other goods
and services are expressly excluded,
as such the quotation should not be viewed, and PSL does not represent the quotation, as a
complete and accurate description of the Products, Services, processes or solution or of the final
price.
12.2. PSL is not obliged to consider nor agree to a Client’s request to cancel or suspend the Agreement,
a Purchase Order or the performance of Services or the provision of Products, The Client will
indemnify PSL for all costs, damages, expenses or loss, including loss of profit, incurred by, or any
demand or claim brought against PSL in connection with the cancellation or the Client’s suspense
of the Agreement, any Purchase Order or the performance of the Services or supply of the Products.
12.3. All second hand equipment is sold on an as is where is basis, and to the extent permitted by law
PSL makes no representations regarding the operation, performance or use of the equipment.
13. DELIVERY, INSTALLATION AND COMMISSIONING
13.1. Dates for delivery, installation, commissioning, the performance of services or other performance
schedules are approximate only and are subject to:
(a) PSL having all necessary information, including Client information, to provide the Products,
perform the Services or commence the works the subject of a Letter or Purchase Order;
(b) PSL obtaining all appropriate consents, approvals or permissions in connection with
commencing the relevant Letter or Purchase Order;
(c) the availability of materials, equipment or other resources from PSL’s suppliers or contractors;
and (d) the Client:
i performing its obligations to date and not being in breach of the Agreement, including
making payment of the Deposit or any instalment or progress payment amount; and
ii providing to PSL by the due date or within the period stipulated by PSL any materials,
documents, equipment or other items required PSL.
13.2. PSL is not liable for any delay to deliver the Products or perform the Services, including installation
and commissioning, by the proposed date due to:
(a) PSL exercising its rights under clause 22.1 to suspend or defer delivery or performance;
(b) the requirements of clause 13.1 not being met or occurring (as the case may be); or
(c) any cause beyond PSL’s reasonable control including any delay in PSL receiving materials,
equipment or other goods from its suppliers or contractors.
13.3. Any delay in the delivery of the Products or the performance of the Services does not entitle the
Client to:
(a) withhold payment of any invoice or make any deduction or set-off against it;
(b) terminate the Agreement, or the relevant Purchase Order; nor
(c) return any Products already delivered,
and PSL is not liable to any person for, and the Client releases PSL from, any damage, cost, loss or
expense suffered by, or any claim against, the Client in connection with any such delay in delivery
or performance.
13.4. All Products to be supplied to the Client will be deemed to have been delivered on the date of delivery
to the Client’s premises or agreed delivery point.
13.5. The Client must make available reasonable and unobstructed access to the delivery point for prompt
unloading. If for any reason the Client postpones or delays taking delivery or postpones scheduled
Service performance dates, PSL:
(a) may retain the relevant Products entirely at the risk and expense of the Client; and
(b) PSL is entitled to levy the Client additional charges incurred due to the Client’s postponement
or delay.
13.6. Unless otherwise set out in a Letter, Purchase Order or in writing, PSL will arrange insurance to
PSL’s premises or port only for international freight. The Client assumes the risk in the goods and is
responsible to insure the Products for transit from PSL’s site or port to the Client’s site or delivery
point. The Client must promptly notify PSL and the freight forwarder if the Products are damaged or
there are missing parts.
13.7. Unless otherwise stated, the Client is solely responsible for the unpacking and locating the relevant
Products, goods or equipment to the areas where they will be in operation in the Client’s premises.
13.8. The Client must provide to PSL at least four weeks’ written notice for a commissioning date where
the Client is installing PSL’s plant and where PSL is undertaking commissioning.
13.9. Where the Quotation specifically states that commissioning on the Products is included, the Client
will, at its cost, make available such raw ingredients as PSL determines necessary.
13.10.The Client is liable for, and must pay to PSL on demand, the specified daily charge for labour,
transport and other costs, should the Client’s site not be in a state of readiness, as determined by
PSL, for any reason for the purpose of PSL undertaking installation and/or commissioning or other
professional services.
14. WARRANTY
14.1. Warranty’s do not apply to the sales of any second hand equipment.
14.2. PSL warrants and guarantees to the Client that the goods and services supplied by it to the Client
under this Agreement will perform in accordance with the supplied specifications for a period of 12
months from the date of delivery ex works. The benefits conferred by the warranty are in addition to
and not in derogation of all other rights and remedies in respect of the goods or services which the
Client may have under law.
14.3. In relation goods, parts and equipment that are not manufactured by PSL that form part of our
supplies to the Client, to the extent that it is able to, PSL’s warranty is limited to that granted to PSL
by its supplier.
14.4. When second hand or reconditioned goods are supplied, any statement of capacities or performance
figures are estimates only and are supplied in good faith on information provided and PSL accepts
no liability for these.
14.5. PSL’s warranty under clause 14.1 is voided and does not cover, and the Client assumes all
responsibility for, all defects, losses and damages arising from or relating to:
(a) the consequences of natural wear and tear;
(b) misuse, accident, negligent, inappropriate or improper operation, maintenance, installation,
modification or adjustment by the Client or any other person;
(c) overloading of the goods by any person;
(d) use of inappropriate lubrication material contrary to PSL’s instructions;
(e) inadequate tending or maintenance of the goods on the part of the Client;
(f) inadequate construction works;
(g) where the Client or user has performed the commissioning of the relevant good, plant or
equipment;
(h) the effect of any chemical, electrical or other indirect influences on the goods.
(i) the use of any Client plant or equipment; or
(j) any work, including modification or repair work, undertaken on the relevant goods by third
parties not approved by PSL.
14.6. PSL disclaims all liability, the Client releases PSL from any responsibility for any errors, defect or
fault occurring as a result of any design or information provided by the Client.
14.7. To the fullest extent permitted by law, the client acknowledges and agrees, and it is expressly
declared by PSL that:
(a) all representations or terms (including any condition or warranty and whether expressed or
implied by law or otherwise) not expressly included in these conditions are excluded;
(b) despite anything else in these terms, should PSL breach any statutorily implied warranty or
guarantee, then to the extent permitted by law, PSL’s liability for such breach is limited to, at
its option:
i in the case of goods, either repairing or replacing the goods or the supply of equivalent
goods or the payment of the cost of replacing or repairing the goods or of acquiring
equivalent goods; and
ii in the case of services, the supply of the service again or the payment of the cost of
having the services supplied again.
14.8. PSL will be under no liability whatsoever to the Purchaser for or in respect of any representations or
terms not expressly set out in the Agreement
15. RISK AND OWNERSHIP
15.1. Risk in all goods supplied to the Client, including the Products, will pass to the Client immediately on
delivery to Client’s premises or the designated port and the Client is responsible for insuring the
goods from this time.
15.2. In relation to second-hand goods:
(a) PSL will obtain and maintain such insurances as it deems appropriate to cover for loss or
damage;
(b) in the event of partial loss or damage PSL may, at its option, reimburse repair costs, including
the second-hand cost of parts required.
(c) PSL’s liability limit under this clause is the amount of the declared value of the relevant goods
item
15.3. Until title in the goods passes to the Client, the Client acknowledges that it holds the goods or any
products, which incorporate the goods solely as bailee of PSL and in a fiduciary capacity and PSL
may enter the Client’s premises on which such goods are kept and retake possession of the relevant
goods at any time without notice.
15.4. While title and property in the goods remains vested in PSL, the Client agrees:
13.5.4 to insure the goods against all usual risks and for full replacement value and the Client
will hold on trust for PSL any insurance monies received by the Client for the goods owned
by PSL;
13.5.5 to not dispose of the goods;
13.5.6 that it has no right or claim to any interest in the goods to secure any debt or obligation
that PSL owes to the Client;
13.5.7 that it cannot claim any lien over the goods and will not pledge or allow any security
interest or other interest to arise over the goods;
13.5.8 to not create any absolute or defeasible interest in the goods in relation to any third party;
and
13.5.9 to provide PSL with access to the premises where the goods are kept to enable PSL to
inspect and/or seize it.
15.5. Where the Client disposes of the goods before making payment to PSL of all amounts due to PSL,
the Client does so as the PSL’s fiduciary agent and the sale proceeds from such sale (or the portion
of the proceeds of sale of any mixed goods), transfer or disposal are the property of PSL and the
Client holds the proceeds on trust for PSL and will account to PSL on demand of such proceeds.
Pending this accounting such proceeds must not be mingled with any other monies and will be held
by the Client in a separate bank account on behalf of PSL.
16. INDEMNITY
16.1. The Client must indemnify and keep indemnified PSL against all cost, expense, loss or damage,
incurred by, and all claims, actions or demands brought against, PSL directly or indirectly arising
from or in connection with:
16.2. the use, operation or possession of the Products supplied under the Agreement, by the Client or by
its officers, employees, agents or contractors;
16.3. any breach of this Agreement by the Client, including the costs of recovering or enforcing payment
of all amounts due to PSL;
16.4. the Client’s materials, equipment or information provided to PSL under the Agreement; or
16.5. any wrongful, wilful or negligent act or omission of the Client or any of its officers, employees, agents
or contractors.
17. PAYMENT
17.1. Except as otherwise provided for under the Letter or Purchase Order, PSL will issue to the Client
invoices based on monthly progress claims which will be payable the 20th following the invoice date.
17.2. All agreed variations to the goods or services under the Letter or Purchase Order are to be paid on
completion of the relevant works or services being carried out, or goods provided.
17.3. If, in PSL’s opinion, the variation work is substantial then PSL will require the Client to make payment
of a deposit amount in advance for the variation work before it is carried out. If the Client does not
pay PSL the amount requested, PSL is under no obligation to undertake the variation work or any
part of it.
17.4. Unless otherwise agreed and without prejudice to PSL’s rights and remedies, default, interest may
be charged at a rate of 15% per annum by PSL on any account unpaid on a daily basis from the due
date until actual payment. The Client acknowledges that the interest amount payable by the Client
under this clause is a genuine pre-estimate of the loss suffered by the Client as result of the Client’s
failure to make payment of the overdue amount by the due date.
17.5. The Client must pay to PSL all GST payable in respect of any taxable supplies made to the Client
by PSL under the Agreement.
18. ARBITRATION
18.1. In the event of any dispute of difference arising between the parties o concerning the the Agreement
PSL may refer such dispute to arbitration in accordance with the Arbitration Act 1996.
18.2. The arbitration will be commenced by either party giving to the other written notice stating the subject
matter of the dispute and that party’s desire to have the matter referred to arbitration
18.3. The arbitration will be by a single arbitrator to be agreed upon by the parties or, failing agreement
within 10 working days of delivery of the notice to be appointed by the Executive Director of the
Arbitrators and Mediators Institute of New Zealand Incorporated.
18.4. The party who receives any notice under clause 18.1 may, within five working days of receiving such
notice, give a written notice to the other requesting the dispute to be resolved by way of mediation.
If such a request is made, then the parties will use their reasonable endeavours to agree upon
mediation.
18.5. If the parties fail to agree upon a mediator within 10 working days of the delivery of the request for
mediation, then at the request of either party, the mediator will be appointed by the President of the
District Law Society or his or her nominee. All discussions in mediation will be without prejudice. All
costs of mediation are to be shared equally.
18.6. If no agreement has been reached in mediation within 10 working days of the appointment of a
mediator, then the matter in dispute will be referred to arbitration in accordance with clause 18.3
18.7. Where a dispute goes to arbitration, which has previously been referred to mediation the mediator,
will not be called by either party as a witness and no reference shall be made to discussions held in
mediation
18.8. The award in the arbitration shall be final and binding on the parties
18.9. All provisions contained in the Second Schedule to the Arbitration Act 1996 will apply to the
arbitration.
19. TITLE AND SECURITY (PERSONAL PROPERTY SECURITIES ACT 1999)
19.1. For the purposes of this clause:
(a) PPSA means the Personal Property Securities Act 1999;
(b) all capitalised terms have the meaning given in the PPSA and section references will be to
sections of the PPSA; and
(c) the Client acknowledges that the Agreement, the Letter and each Purchase Order accepted
by PSL and/or other agreements with the Client, constitutes a Security Agreement for the
purposes of the PPSA.
19.2. This clause 19 creates a security interest in goods PSL supplies to the Client under the Agreement
including the Products.
19.3. The Client must not grant any other security interest or any lien over goods that PSL has a security
interest in.
19.4. At PSL’s request, the Client must promptly sign any documents and do anything else required by
PSL to ensure that PSL’s security interest constitutes a first ranking perfected security interest in the
goods.
19.5. PSL may at any time enter the premises and properties of the Client to uplift goods that PSL has a
security interest in, and the following will apply:
(a) PSL will not be liable for any costs, damages, expenses or losses incurred by the Client or
any third party as a result of PSL’s entry onto the Client’s property or premises;
(b) the Client indemnifies PSL in respect of any cost, expenses and claims resulting from PSL
entering onto the premises;
(c) PSL may either:
i resell any repossessed goods and credit the Client’s account with the net proceeds of
sale (after deduction of all repossession, storage, selling and other costs); or
ii retain any repossessed goods and credit the Client’s account with the invoice value
less such sum as PSL reasonably determines on account of wear and tear,
depreciation, obsolescence, loss or profit and costs
19.6. If goods that PSL has a security interest in are processed, included or dealt with in any way causing
them to become accessions, processed or commingled goods, PSL’s security interest will continue
in the whole in which they are included.
19.7. The Client must not grant any other security interest or any lien in either the goods or in the whole.
19.8. PSL may exercise its rights and enforce it’s the security interest created by the Agreement if any of
the following events occur:
(a) the Client fails to remedy any breach of the Agreement within the period required by PSL
including any failure to pay an invoiced amount by its due date;
(b) the Client deals with or disposes of any of the goods before making payment in full of all
amounts owed by the Client to PSL;
(c) PSL is of the view that:
17.1.1.1 the Client is, or may be, the subject of, an event of insolvency including the
appointment of any receiver or liquidator over it or any of its assets;
17.1.1.2 the goods in the possession of the Client are damaged or are at risk of being
damaged, disposed of or dealt with while any amount is owing to PSL;
17.1.1.3 a material adverse change has occurred in relation to the Client’s financial or
trading position or its capacity to perform its obligations under the Agreement,
(d) in PSL’s opinion, PSL’s security interest in the goods is at risk; or
(e) any of the goods are repossessed by any other creditor of the Client or any other creditor
intimates that it intends to repossess goods.
19.9. The Client waives:
(a) any rights they may have under sections 114(1)(a), 116, 120(2), 121, 125, 126, 127, 129,
131, 133, and 134 of the PPSA;
(b) the right to receive a copy of any verification statement (as that term is defined in the PPSA);
and
(c) will give PSL prior written notice of a proposed change of name or address.
20. GUARANTOR (IF APPLICABLE)
20.1. In consideration of PSL, at the request of the Client and the Guarantor, entering into this Agreement
and to induce PSL to enter into this Agreement, the Guarantor guarantees to PSL the due and
punctual performance and observance by the Client of its obligations under this Agreement.
20.2. As a separate and primary liability, the Guarantor irrevocably and unconditionally indemnifies PSL
against any loss or damage suffered or incurred by PSL arising out of the Client’s failure to comply
with this Agreement.
20.3. The Guarantor acknowledges giving the guarantee and indemnity described in clauses 20.1 and
20.2 and incurring obligations and granting rights under this Agreement for valuable consideration
received from PSL.
20.4. The guarantee and indemnity described in clauses 20.1 and 20.2 is a continuing security despite
termination by PSL, settlement of account, intervening payment, express or implied revocation or
other matter whatsoever, until PSL provides to the Guarantor a final discharge of the guarantee and
indemnity.
20.5. The Guarantor confirms that:
(a) it has not entered into this Agreement in reliance on, or as a result of a statement or conduct
of or on behalf of PSL; and
(b) PSL is not obliged to do anything (including disclosing anything or giving advice), except as
expressly set out in this Agreement.
21. CREDIT APPLICATION
21.1. The Client:
(a) warrants that all details provided to PSL in or accompanying any credit account application
are complete, true and accurate and not misleading or deceptive; (b) acknowledges that PSL may in its absolute discretion accept or reject the credit account
application and is not obliged to furnish reasons for its decision;
(c) acknowledges and agrees that PSL may terminate its provision of credit to the Client at any
time without notice for any reason;
(d) warrants that any Equipment hired from PSL will only be used for commercial purposes and
not for any domestic or household purposes; and
(e) warrants that the credit account application is not an application for consumer credit.
22. TERMINATION
22.1. PSL may:
(a) terminate the Agreement;
(b) cancel a Purchase Order;
(c) suspend the provision of the Products and Services;
(d) restrict the Client’s use of the Products; or
(e) require the immediate payment under a Letter or Purchase Order despite the agreed payment
terms,
if the Client:
(f) fails to remedy a breach of the Agreement within 30 days of being notified in writing of the
breach; or
(g) commits or has taken against it an act of insolvency, bankruptcy, winding up, official
management, administration, receivership or liquidation or calls a meeting of its creditors,
there occurs a transfer of ownership or control of the Client.
22.2. If PSL suspends the provision of Products or the performance of a Service, PSL may resume
provision or performance upon it being satisfied that the Client has remedied the breach which gave
rise to the suspension.
22.3. Termination or suspension is without prejudice to any other rights or remedies available to PSL at
law.
22.4. On termination of the Agreement:
(a) where the relevant Letter, Purchase Order or other written agreement between the parties
expressly stipulates that the Deposit is non-refundable, then without limiting its rights under
clause 22.3, PSL will retain absolutely the Deposit;
(b) subject to clause 22.4(a) and without limiting its rights under clause 22.3, PSL will refund to
the Client the Deposit net of the costs referred to in clause 22.4(c) and
(c) the Client must pay to PSL all payments then due, and all other actual, reasonable,
documented costs and expenses incurred by PSL in performing the Agreement and/or
resulting from termination, including the cost of labour, any ordered goods or services PSL is
required to pay, and the loss of anticipated profits.
23. FORCE MAJEURE
23.1. For the purposes of this clause, Force Majeure Event means the occurrence of any event outside
the reasonable control of a party and includes the following events or circumstances:
(a) hurricane, typhoon, earthquake, flood, landslide or other natural disaster, or fire;
(b) civil riot, insurrection, revolution, terrorism, war or other like hostilities;
(c) any disease, pandemic or epidemic;
(d) strike, lockout or industrial disturbances;
(e) act of any governmental or public authority including any law, order or direction promulgated
by a government authority in response to the outbreak or containment of Coronavirus
pandemic; or
(f) delay in the delivery or transportation of materials or the unavailability or shortage of suitable
materials.
23.2. If a party is affected by a Force Majeure Event which prevents it from carrying out its obligations
under the Agreement (other than to make a payment when due), that affected party must promptly
notify the other party of the nature and extent of the circumstance, the likely duration and the impact
on the affected party’s obligations under the Agreement.
23.3. Notwithstanding any other provision of the Agreement neither party will be deemed to be in breach
or otherwise be liable to the other for any delay in the performance or the non-performance of any
of its obligations under the Agreement, to the extent that the delay or non-performance is due to any
Force Majeure Event of which it has notified the other party, and the time for performance of that
obligation will be extended accordingly.
23.4. Where the affected party is PSL, PSL is not liable or obliged to provide any financial relief to the
Client as a result of the Force Majeure Event.
23.5. If a Force Majeure Event subsists so that the affected party is unable to perform all or a material part
of its obligations under the Agreement for three consecutive months or six months in the aggregate
as a consequence of a Force Majeure Event, either party may terminate this Agreement with
immediate effect by notice to the other party. Upon issue of such notice, clause 22.4 will apply.
24. GENERAL
24.1. No waiver of any breach of this Agreement will be effective unless the waiver is in writing and signed
by the party against whom the waiver is claimed.
24.2. The Agreement including these terms and conditions is governed by the laws of New Zealand and
each party submits to the non-exclusive jurisdiction of its courts.
24.3. The Client must not assign its rights or interests or delegate its duties under this Agreement without
PSL’s prior written consent.
24.4. The Agreement contains the entire agreement between the parties about its subject matter. Any
previous understanding, agreement, representation or warranty relating to that subject matter is
replaced by the Agreement and has no further effect.
24.5. Any provision of the Agreement which is illegal, void or unenforceable will be severed without
prejudice to the balance of the provisions of the Agreement.
24.6. The Client must at all times treat as confidential all information and material provided by PSL and
designed by it as being of a confidential or commercial sensitive nature, and the Client must not
disclose, publish or use such information without PSL’s prior written consent.
24.7. The Agreement cannot be varied except by the written agreement between the parties.
24.8. Any notice to be given to one party by another under the Agreement must be in legible writing and
in English addressed to the relevant party at the address stated in the Agreement, Letter, Purchase
Order or other form of contract between the parties (as the case may be).