1.1 “Jacks” shall mean Jacks Machinery (1992) Limited its successors and assigns or any person acting on behalf of and with the authority of Jacks Machinery (1992) Limited.
1.2 “Customer” shall mean the Customer (or any person acting on behalf of and with the authority of the Customer) as described on any quotation, work authorisation or other form as provided by Jacks to the Customer.
1.3 “Guarantor” shall mean that person (or persons) who agrees to be liable for the debts of the Customer on a principal debtor basis.
1.4 “Goods” shall mean all Goods supplied by Jacks to the Customer (and where the context so permits shall include any supply of Services as hereinafter defined) and includes Goods described on any invoices, quotation, work authorisation or any other forms as provided by Jacks to the Customer.
1.5 “Parts” shall mean Parts supplied by Jacks to the Customer either separately, or as part of the Services (and where the context so permits shall include the supply of Services as defined above).
1.6 “Services” shall mean all services supplied by Jacks to the Customer and includes any advice or recommendations (and where the context so permits shall include any supply of Goods and/or Parts as defined above).
1.7 “Price” shall mean the price payable for the Goods as agreed between Jacks and the Customer in accordance with clause 3 of this contract.
2.1 Any instructions received by Jacks from the Customer for the supply of Goods and/or the Customer’s acceptance of Goods supplied by Jacks shall constitute acceptance of the terms and conditions contained herein.
2.2 Where more than one Customer has entered into this agreement, the Customers shall be jointly and severally liable for all payments of the Price.
2.3 Upon acceptance of these terms and conditions by the Customer the terms and conditions are binding and can only be amended with the written consent of Jacks.
2.4 The Customer shall give Jacks not less than fourteen (14) days prior written notice of any proposed change of ownership of the Customer or any change in the Customer’s name and/or any other change in the Customer’s details (including but not limited to, changes in the Customer’s address, facsimile number, or business practice). The Customer shall be liable for any loss incurred by Jacks as a result of the Customer’s failure to comply with this clause.
2.5 Goods are supplied by Jacks only on the terms and conditions of trade herein to the exclusion of anything to the contrary in the terms of the Customer’s order notwithstanding that any such order is placed on terms that purport to override these terms and conditions of trade.
3. Price And Payment
3.1 At Jacks’ sole discretion the Price shall be either:
(a) as indicated on invoices provided by Jacks to the Customer in respect of Goods supplied; or
(b) Jacks’ current price at the date of delivery of the Goods according to Jacks’ current Price list; or
(c) Jacks’ quoted Price (subject to clause 3.2) which shall be binding upon Jacks provided that the Customer shall accept Jacks’ quotation in writing within thirty (30) days.
3.2 Jacks reserves the right to change the Price in the event of a variation to Jacks’ quotation. Any variation from the plan of scheduled works or specifications (including, but not limited to, any variation due to unforeseen circumstances in the case of repairs, that were only discovered upon inspection, or as a result of increases to Jacks in the cost of materials and labour) will be charged for on the basis of Jacks’ quotation and will be shown as variations on the invoice. Payment for all variations must be made in full at their time of completion.
3.3 Where Jacks is requested to store the Customer’s Parts or vehicle, or where Parts or vehicles are not collected within twenty-four hours of advice to the Customer that they are ready for collection, then Jacks (at its sole discretion) may charge a reasonable fee for storage.
3.4 At Jacks’ sole discretion a non-refundable deposit may be required.
3.5 At Jacks’ sole discretion:
(a) payment shall be due on delivery of the Goods; or
(b) payment for approved Customers by arrangement in writing shall be made by instalments in accordance with Jacks’ payment schedule; or
(c) payment for approved Customers shall be 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.
3.6 Payment will be made by cash, or by cheque, or by bank cheque, or by credit card, or by direct credit, or by any other method as agreed to between the Customer and Jacks.
3.7 GST and other taxes and duties that may be applicable shall be added to the Price except when they are expressly included in the Price.
4. Delivery Of Goods
4.1 At Jacks’ sole discretion delivery of the Goods shall take place when:
(a) the Customer takes possession of the Goods at Jacks’ address; or
(b) the Customer takes possession of the Goods at the Customer’s nominated address (in the event that the Goods are delivered by Jacks or Jacks’ nominated carrier); or
(c) the Customer’s nominated carrier takes possession of the Goods in which event the carrier shall be deemed to be the Customer’s agent.
4.2 At Jacks’ sole discretion the costs of delivery are:
(a) in addition to the Price; or
(b) for the Customer’s account.
4.3 The Customer shall make all arrangements necessary to take delivery 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 Jacks shall be entitled to charge a reasonable fee for redelivery.
4.4 Jacks may deliver the Goods by separate instalments. Each separate instalment shall be invoiced and paid for in accordance with the provisions in these terms and conditions.
4.5 The failure of Jacks to deliver shall not entitle either party to treat this contract as repudiated.
4.6 Jacks shall not be liable for any loss or damage whatsoever due to failure by Jacks to deliver the Goods (or any of them) promptly or at all, where due to circumstances beyond the control of Jacks.
5.1 If Jacks retains ownership of the Goods nonetheless, all risk for the Goods passes to the Customer on delivery.
5.2 If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Customer, Jacks is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by Jacks is sufficient evidence of Jacks’ rights to receive the insurance proceeds without the need for any person dealing with Jacks to make further enquiries.
6.1 Jacks and Customer agree that ownership of the Goods shall not pass until:
(a) the Customer has paid Jacks all amounts owing for the particular Goods; and
(b) the Customer has met all other obligations due by the Customer to Jacks in respect of all contracts between Jacks and the Customer.
6.2 Receipt by Jacks 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 and until then Jacks’ ownership or rights in respect of the Goods shall continue.
6.3 It is further agreed that:
(a) where practicable the Goods shall be kept separate and identifiable until Jacks shall have received payment and all other obligations of the Customer are met; and
(b) until such time as ownership of the Goods shall pass from Jacks to the Customer Jacks may give notice in writing to the Customer to return the Goods or any of them to Jacks. Upon such notice being given the rights of the Customer to obtain ownership or any other interest in the Goods shall cease; and
(c) the Customer is only a bailee of the Goods and until such time as Jacks has received payment in full for the Goods then the Customer shall hold any proceeds from the sale or disposal of the Goods, up to and including the amount the Customer owes to Jacks for the Goods, on trust for Jacks; and
(d) until such time that ownership in the Goods passes to the Customer, if the Goods are converted into other products, the parties agree that Jacks will be the owner of the end products; and
(e) if the Customer fails to return the Goods to Jacks then Jacks or Jacks’ agent may (as the invitee of the Customer) enter upon and into land and premises owned, occupied or used by the Customer, or any premises where the Goods are situated and take possession of the Goods, and Jacks will not be liable for any reasonable loss or damage suffered as a result of any action by Jacks under this clause.
7. Personal Property Securities Act 1999 (“PPSA”)
7.1 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 Jacks to the Customer (if any) and all Goods that will be supplied in the future by Jacks to the Customer.
7.2 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 Jacks may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register;
(b) indemnify, and upon demand reimburse, Jacks 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 Jacks; and
(d) immediately advise Jacks 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.
7.3 Jacks and the Customer agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms and conditions.
7.4 The Customer waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA.
7.5 Unless otherwise agreed to in writing by Jacks, the Customer waives its right to receive a verification statement in accordance with section 148 of the PPSA.
7.6 The Customer shall unconditionally ratify any actions taken by Jacks under clauses 7.1 to 7.5.
8. Security And Charge
8.1 Despite anything to the contrary contained herein or any other rights which Jacks may have howsoever:
(a) where the Customer and/or the Guarantor (if any) is the owner of land, realty or any other asset capable of being charged, both the Customer and/or the Guarantor agree to mortgage and/or charge all of their joint and/or several interest in the said land, realty or any other asset to Jacks or Jacks’ nominee to secure all amounts and other monetary obligations payable under these terms and conditions. The Customer and/or the Guarantor acknowledge and agree that Jacks (or Jacks’ nominee) shall be entitled to lodge where appropriate a caveat, which caveat shall be withdrawn once all payments and other monetary obligations payable hereunder have been met.
(b) should Jacks elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Customer and/or Guarantor shall indemnify Jacks from and against all Jacks’ costs and disbursements including legal costs on a solicitor and own client basis.
(c) the Customer and/or the Guarantor (if any) agree to irrevocably nominate constitute and appoint Jacks or Jacks’ nominee as the Customer’s and/or Guarantor’s true and lawful attorney to perform all necessary acts to give effect to the provisions of this clause 8.1.
9. Customer’s Disclaimer
9.1 The Customer hereby disclaims any right to rescind, or cancel any contract with Jacks or to sue for damages or to claim restitution arising out of any inadvertent misrepresentation made to the Customer by Jacks and the Customer acknowledges that the Goods are bought relying solely upon the Customer’s skill and judgment.
10.1 The Customer shall inspect the Goods on delivery and shall within seven (7) days of delivery (time being of the essence) notify Jacks of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Customer shall afford Jacks 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 Jacks has agreed in writing that the Customer is entitled to reject, Jacks’ liability is limited to either (at Jacks’ discretion) replacing the Goods or repairing the Goods.
11.1 Returns will only be accepted provided that:
(a) the Customer has complied with the provisions of clause 10.1; and
(b) Jacks has agreed in writing to accept the return of the Goods; and
(c) the Goods are returned at the Customer’s cost within seven (7) days of the delivery date; and
(d) Jacks will not be liable for Goods which have not been stored or used in a proper manner; and
(e) the Goods are returned in the condition in which they were delivered and with all packaging material, brochures and instruction material in as new condition as is reasonably possible in the circumstances.
11.2 Jacks may (in its discretion) accept the return of Goods for credit but this may incur a handling fee of twenty-five percent (25%) of the value of the returned Goods plus any freight.
11.3 Non-stocklist items or Goods made to the Customer’s specifications are under no circumstances acceptable for credit or return.
12.1 For Goods not manufactured by Jacks, the warranty shall be the current warranty provided by the manufacturer of the Goods. Jacks 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.
12.2 In the case of second hand Goods, the Customer acknowledges that he has had full opportunity to inspect the same and that he accepts the same with all faults and that no warranty is given by Jacks as to the quality or suitability for any purpose and any implied warranty, statutory or otherwise, is expressly excluded. Jacks shall not be responsible for any loss or damage to the Goods, or caused by the Goods, or any part thereof however arising.
13. Consumer Guarantees Act 1993
13.1 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 Jacks to the Customer.
14. Default & Consequences Of Default
14.1 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 Jacks’ sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
14.2 In the event that the Customer’s payment is dishonoured for any reason the Customer shall be liable for any dishonour fees incurred by Jacks.
14.3 If the Customer defaults in payment of any invoice when due, the Customer shall indemnify Jacks from and against all costs and disbursements incurred by Jacks in pursuing the debt including legal costs on a solicitor and own client basis and Jacks’ collection agency costs.
14.4 Without prejudice to any other remedies Jacks may have, if at any time the Customer is in breach of any obligation (including those relating to payment) Jacks may suspend or terminate the supply of Goods to the Customer and any of its other obligations under the terms and conditions. Jacks will not be liable to the Customer for any loss or damage the Customer suffers because Jacks has exercised its rights under this clause.
14.5 If any account remains overdue after thirty (30) days then an amount of the greater of twenty dollars ($20.00) or ten percent (10%) of the amount overdue (up to a maximum of two hundred dollars ($200.00)) shall be levied for administration fees which sum shall become immediately due and payable.
14.6 Without prejudice to Jacks’ other remedies at law Jacks shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to Jacks shall, whether or not due for payment, become immediately payable in the event that:
(a) any money payable to Jacks becomes overdue, or in Jacks’ opinion the Customer will be unable to meet its payments as they fall due; or
(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.
15.1 Jacks 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 Jacks shall repay to the Customer any sums paid in respect of the Price. Jacks shall not be liable for any loss or damage whatsoever arising from such cancellation.
15.2 In the event that the Customer cancels delivery of the Goods the Customer shall be liable for any loss incurred by Jacks (including, but not limited to, any loss of profits) up to the time of cancellation.
15.3 Cancellation of orders for Goods made to the Customer’s specifications or non-stocklist items will definitely not be accepted, once production has commenced.
16. Privacy Act 1993
16.1 The Customer and the Guarantor/s (if separate to the Customer) authorises Jacks to:
(a) collect, retain and use any information about the Customer and/or Guarantors, for the purpose of assessing the Customer’s and/or Guarantors creditworthiness or marketing products and services to the Customer and/or Guarantors; and
(b) disclose information about the Customer and/or Guarantors, whether collected by Jacks from the Customer and/or Guarantors directly or obtained by Jacks 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 and/or Guarantors.
16.2 Where the Customer and/or Guarantors are an individual the authorities under clause 16.1 are authorities or consents for the purposes of the Privacy Act 1993.
16.3 The Customer and/or Guarantors shall have the right to request Jacks for a copy of the information about the Customer and/or Guarantors retained by Jacks and the right to request Jacks to correct any incorrect information about the Customer and/or Guarantors held by Jacks.
17. Unpaid Jacks’ Rights
17.1 Where the Customer has left any item with Jacks for repair, modification, exchange or for Jacks to perform any other Service in relation to the item and Jacks has not received or been tendered the whole of the Price, or the payment has been dishonoured, Jacks shall have:
(a) a lien on the item;
(b) the right to retain the item for the Price while Jacks is in possession of the item;
(c) a right to sell the item.
17.2 The lien of Jacks shall continue despite the commencement of proceedings, or judgement for the Price having been obtained.
18.1 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.
18.2 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 courts of New Zealand.
18.3 Jacks 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 Jacks of these terms and conditions.
18.4 In the event of any breach of this contract by Jacks the remedies of the Customer shall be limited to damages which under no circumstances shall exceed the Price of the Goods.
18.5 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 Jacks nor to withhold payment of any invoice because part of that invoice is in dispute.
18.6 Jacks may license or sub-contract all or any part of its rights and obligations without the Customer’s consent.
18.7 Jacks reserves the right to review these terms and conditions at any time. If, following any such review, there is to be any change to these terms and conditions, then that change will take effect from the date on which Jacks notifies the Customer of such change.
18.8 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, drought, storm or other event beyond the reasonable control of either party.
18.9 The failure by Jacks to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect Jacks’ right to subsequently enforce that provision.