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TERMS AND CONDITIONS


1. General

The whole of the Agreement between Performance Welding Solutions Limited (Company Number 9100838) (“PWS”) and the Applicant referred to in the Credit Application (“Customer”) are those set out in these Terms and Conditions as amended from time to time and those, if any, which are implied and which cannot be excluded by law (“Terms”). Any other contractual terms of the Customer (whether upon the Customer’s order or elsewhere) which are contrary to or inconsistent with these Terms shall not apply nor shall they constitute a counter-offer. By receiving delivery and/or supply of all or a portion of the goods, materials and/or parts (“Goods”) and/or labour and/or services (“Services”) supplied by PWS under these Terms, the Customer shall be deemed to have accepted these Terms and to have agreed that they shall apply to the exclusion of all others.

2. Credit Terms (If applicable)

2.1 Payment is due on or prior to thirty (30) days from the end of month in which the invoice is rendered in respect of the supply of the Goods and/or Services unless otherwise stated in writing by PWS. If payment is not received by the due date, PWS may charge penalty interest on overdue monies on a daily basis at a rate equivalent to two percent (2%) per month.

2.2 PWS’s express or implied approval for extending credit to the Customer may be revoked or withdrawn by PWS at any time.

2.3 PWS is entitled to set-off against any money owing to the Customer amounts owed to PWS by the Customer on any account whatsoever.

2.4 Any payments received from the Customer on overdue accounts will be applied first to satisfy interest which may have accrued, second to reasonable expenses and legal costs referred to in Clause 2.5, and then to principal.

2.5 The Customer indemnifies and agrees to pay, on demand, all costs PWS incurs (including legal costs on a solicitor-client basis and debt collection costs) in the recovery or attempted recovery of unpaid moneys and/or the enforcement of these Terms or the security interest contained in these Terms.

3. Quotations and Pricing

3.1 Prices charged for Goods and Services will be according to a current quotation for those Goods and Services. Otherwise, they will be determined by PWS by reference to its standard prices in effect at the date of delivery (whether notified to the Customer or not and regardless of any prices contained in the order). PWS will use its best endeavors to notify the Customer of price changes but bears no liability in respect of this.

3.2 Any quotation, acceptance of quotation, purchase order or other document which requires signature may be signed in electronic form, and such signature shall be binding upon the person affixing that signature.

3.3 Unless otherwise specified by PWS, the prices exclude:

  • 3.3.1 GST, any other applicable taxes and duties; and
  • 3.3.2 Costs and charges in relation to insurance, packing (other than the standard packing of PWS), crating, delivery (whether by road, rail, ship or air) and export of the Goods. 

3.4 Any variations in the invoice or contract price as a consequence of currency fluctuations shall be payable by the Customer. 

3.5 The contract between PWS and the Customer shall not be affected by any impositions or alterations of customs duties or by decisions of the Customs Service with regard to either classification or value of duty or landing charges occasioned thereby. Any such impositions shall be to the account of the Customer.

4. Delivery and Supply

4.1 Any times quoted for delivery and/or supply are estimates only and PWS shall not be liable for failure to deliver/supply, or for delay in delivery/supply. The Customer shall not be relieved of any obligation to accept or pay for Goods, by reason of any delay in delivery/supply or dispatch. PWS reserves the right to stop supply at any time if the Customer fails to comply with the Terms.

4.2 PWS may refuse to supply any order by the Customer for Goods and Services in its absolute discretion and may make acceptance of an order conditional upon it receiving a satisfactory credit assessment of the Customer.

4.3 The Customer is deemed to accept delivery of the Goods where it is either delivered to the Customer’s premises or when PWS notifies the Customer that the Goods are available for collection.

4.4 If the Customer is unable or fails to accept delivery of the Goods, PWS may deliver it to a place of storage nominated by the Customer and, failing such nomination, to a place determined by PWS. Such action shall be deemed to be delivery to the Customer. The Customer shall indemnify and hold PWS harmless for all cost, charge and expense incurred by PWS on account of storage, detention, double cartage/delivery or similar causes.

5. Property

5.1 All sums outstanding become immediately due and payable by the Customer to PWS if the Customer makes default in paying any other sums due to PWS, becomes insolvent or bankrupt, or commits any act of insolvency or bankruptcy, compounds or takes any step to enter into any arrangement with its creditors, has judgment entered against it in any court or, being a company, has a provisional liquidator, liquidator, receiver, receiver manager or administrator appointed, notwithstanding the provisions of any other clause in these Terms.

5.2 Until full payment has been made for all Goods and Services, and any other sums in any way outstanding from the Customer to PWS from time to time:

  • 5.2.1 The property in the Goods shall not pass to the Customer and the Customer shall hold the Goods as bailee for PWS (returning the same to PWS on request). The Goods shall nevertheless be at the risk of the Customer from the time of delivery/supply and the Customer must insure the Goods from the time of delivery/supply;
  • 5.2.2 The Customer is only authorised to sell the Goods (or any portion of them) to third parties as the fiduciary agent of PWS provided that there shall be no right to bind PWS to any liability to such third party by contract or otherwise. All payments (direct or indirect) received from such third parties by the Customer for the Goods (or any portion of them) shall be held on trust for PWS pursuant to the fiduciary relationship;
  • 5.2.3 In the event that the Customer incorporates or transforms the Goods (or any portion of them) into any other goods or products produced by the Customer (or a third party), then the Customer must hold a proportion of any payment (“relevant proportion”) received by the Customer for such goods or products on trust for PWS. The Customer expressly acknowledges that the relevant proportion shall be equal to the dollar value of the Goods incorporated or transformed and the Customer further acknowledges that any part payment (not exceeding the relevant proportion) received by the Customer for such goods or products is received as payment first of the relevant proportion;
  • 5.2.4 The provisions of this clause are subject to the Personal Property Securities Act 1999, and the provision of this clause shall be amended to interpreted as necessary to provide for PWS to be a secured creditor over the goods. 5.3 In addition to any lien to which PWS may, by statute or otherwise, be entitled, PWS shall in the event of the Customer’s insolvency, bankruptcy or winding up, be entitled to a general lien over all property or goods belonging to the Customer in PWS’s possession (although all or some of such property or goods may have been paid) for the unpaid price of any Goods sold or delivered to the Customer under this or any other contract.

6. Availability of Stock

Any order that cannot be fulfilled on its receipt will automatically be back ordered and processed when stock becomes available unless it is the Customer’s stated standard policy not to accept back orders or the Customer specifically marks its order, “Do Not Back Order”. Deliveries at any time are subject to availability of stock and PWS will not be liable for any charges due to product unavailability.

7. Returns, Cancellations and Claims

7.1 The Customer shall not return any Goods to PWS without obtaining prior authorisation from PWS. No returns will be accepted unless a copy of the relevant invoice is enclosed with the returned Goods. A list of the Goods returned including product descriptions, quantity, date of return and the Customer’s name and address must also be enclosed. Freight charges must be paid by the Customer. All Goods must be returned in the original packaging and the Customer shall be responsible for all damage incurred during return shipment. A credit note will be issued by PWS only after Goods returned are either collected by PWS’s authorised representative or agent or returned to it by the Customer as set out above. The Customer shall not deduct the amount of any anticipated credit from any payment due to PWS but must await receipt of a credit note.

7.2 All Goods returned must be of merchantable and reasonable quality such that the Goods are complete in their original packaging, not shop-soiled, are not price ticketed and are still listed in the current price list.

7.3 If PWS accepts the return of any Goods that have been ordered, PWS may charge the Customer ten percent (10%) if the Goods are less than one year old and thirty percent (30%) if the Goods are older than one year, of the invoice price as a handling fee with freight costs and risk remaining the responsibility of the Customer.

7.4 No cancellations or partial cancellation of an order by the Customer shall be accepted by PWS unless PWS has first consented in writing to such cancellation or partial cancellation and unless a cancellation charge has been paid which, as determined by PWS, will indemnify PWS against all loss, without limitation. Cancellation will not be accepted on Goods that are not regular stock which are in the process of manufacture or ready for shipment.

7..5 All complaints, claims, or notification of lost Goods, incomplete Goods, Goods damaged in transit or Goods that do not comply with the Customer’s purchase order must be submitted by the Customer to PWS in writing within 24 hours of the date of the invoice rendered for the supply of the Goods. Otherwise, the Customer shall be deemed to have accepted the Goods and shall not refuse to pay for the Goods on the basis that they were lost, incomplete, damaged in transit, or do not comply with the Customer’s purchase order.

8. Personal Property Security Interest

8.1 PWS does not have priority over other persons having a security interest in the Goods. Sections 108 and 120(1) of the Personal Property Securities Act 1999 (“PPSA”) do not apply to the extent that they are inconsistent with this clause. The Customer grants PWS a Security Interest in the Goods (supplied as Commercial Property, more particularly described as Other Goods) and their Proceeds to secure the obligation of the Customer to pay the purchase price of the Goods and any other obligations of the Customer to PWS under this contract (together the “Indebtedness”) and, where the Goods and/or Proceeds are not readily identifiable and/or traceable or their recoverable value is insufficient to pay the Indebtedness, the security interest shall also extend to all the Goods present and after acquired by the Customer, of which the Goods form part, to the extent required to secured the Indebtedness.

8.2 As and when required by PWS the Customer shall, at its own expense, provide all reasonable assistance and relevant information to enable PWS to register a Financing Statement or a Financing Change Statement and generally to obtain, maintain, register and enforce PWS’s Security Interest in respect of the Goods and their Proceeds in accordance with the Personal Property Securities Act 1999 (“PPSA”). This includes, but is not limited to, providing any information PWS requests to complete a financing statement or a financing change statement for the Personal Property Securities Register.

8.3 PWS may at any time register a financing statement or financing change statement in respect of a Security Interest (including any Purchase Money Security Interest). The Customer waives any right to receive a verification statement under the PPSA.

8.4 The Customer shall not change its name or details without first notifying PWS of the new name or details at least 7 days before the change takes effect.

8.5 The Customer warrants that the Goods are not purchased for personal, domestic or household purposes.

8.6 Notwithstanding any reference to a particular invoice/order, where any sum remains outstanding by the Customer on more than one invoice/order, any payments received from the Customer shall be deemed to be made by the Customer and applied by PWS in the following order (unless PWS otherwise determines):

  • 8.6.1 To any obligation owed by the Customer to PWS which is unsecured, in the order in which the obligations were incurred;
  • 8.6.2 To any obligations that are secured, but not by a Purchase Money Security Interest, in the order in which those obligations were incurred;
  • 8.6.3 To obligations that are secured by a Purchase Money Security Interest, in the order in which those obligations were incurred. 

8.7 Until the Customer has paid all money owing to PWS the Customer shall at all times ensure that:

  • 8.7.1 All Goods, while in the Customer’s possession, can be readily identified and distinguished, and/or
  • 8.7.2 All Proceeds (in whatever form) that the Customer received from the sale of any of the goods are readily identifiable and traceable. 

8.8 Where the Goods are purchased by the Customer and held as Inventory, nothing in this clause shall prevent the Customer from selling or leasing and delivering the Goods in the ordinary course of the Customer’s business. Otherwise until the Customer has paid all money owing to PWS the Customer shall not sell or grant a Security Interest in the Goods without PWS’s written consent. 

8.9 Nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these Terms and Conditions. The Customer’s rights as a debtor in sections 116, 120(2), 121, 125-127, 129 and 131 of the PPSA shall not apply to these Terms. 

8.10 Where the Customer is in default, the Customer agrees to PWS entering the Customer’s premises or any other place where the Goods are located, or where PWS reasonably believes that the Goods are located, and taking possession of and selling the Goods even if updating its credit reporting database and providing that information to other customers they have and the Customer consents to that use and disclosure. PWS may request, and any person or organisation (including any credit or debt collection agencies) may provide, information about the Customer to PWS, both now and in the future, for the purposes set out above and the Customer consents to PWS seeking that information in the course of PWS’s business with the Customer and disclosure of that information to PWS. 

8.11 PWS may issue proceedings to recover payment for the Goods notwithstanding that ownership of the Goods may not have passed to the Customer. 

8.12 For the purpose of this clause words and phrases starting with a capital letter shall have the respective meanings given to them under, or in the context of the PPSA, unless it is clear that a contrary meaning is intended to be given.

9. Use of Information

9.1 The Customer agrees that PWS may collect the information for the purpose of assessing the Customer’s application for credit (if any such application), including checking the Customer’s present and continued credit worthiness, if necessary, collecting any outstanding debt from the Customer, arranging for future purchases of other products, setting up PWS’s client database and direct marketing activities (the purposes set out above). The Customer consents to PWS disclosing the information, as well as any default in payment by the Customer, to any credit or debt collection.

10. Notification

The Customer must notify PWS in writing within seven (7) days of:

10.1 Any alteration of the name or ownership of the Customer.

10.2 The issue of any legal proceedings against the Customer.

10.3 The appointment of any provisional liquidator, liquidator, receiver, receiver manager or administrator to the Customer.

10.4 Any change in the ownership of the business name of the Customer. The Customer agrees that it shall be liable to PWS for all Goods and Services supplied to the new owner by PWS until notice of any such change is received.

11. Warranties

11.1 Other than as expressly set out in this clause or otherwise in writing by PWS, no warranties except those implied and that by law cannot be excluded are given by PWS in respect of Goods or Services supplied. Where it is lawful to do so, the liability of PWS for a breach of a condition or warranty is limited to the repair or replacement of the Goods, the supply of equivalent Goods, the payment of the cost of repairing or replacing the Goods or acquiring equivalent Goods, as determined by PWS. If the breach relates to Services the extent of any such liability shall be limited, at PWS’s option, to supplying the Services again, payment of the cost of having the Services supplied again, or refund of the price the Customer paid for the particular defective Services. PWS will not, in any case, be liable for any other losses or damages whether general, exemplary, punitive, direct, indirect or consequential, including loss of business profits.

11.2 All warranty claims must be accompanied with the relevant documentation correctly filled out with the required information before any claim can be processed. Failure to do so may result in the claim being refused.

11.3 Warranty on all equipment covers manufacturing defects only and does not cover wear and tear. Warranty on all machines is from the date of invoice – first year Parts and Labour (in accordance with the Fronius charge rates), second year Parts Only, Torches 3 months and no warranty on wear and tear or consumable parts.

11.4 All part warranty claims require the goods to be return to PWS at the Customer’s expense for assessment, once assessed the repaired or replace goods will be returned Free Into Store.

11.5 All parts being sent for warranty repairs will be invoiced to the Customer and credit only given on return of the faulty part and correct paperwork.

11.6 If the Customer is in trade and is acquiring the Goods or Services for business purposes, the guarantees under the Consumer Guarantees Act 1993 and sections 9, 12A, 13 and 14(1) of the Fair Trading Act 1986 do not apply.

12. Consignments and Demonstration Stock

Fronius Consignment and/or Demonstration equipment can be made available to a distributor if required and will be sent to them F.I.S. Upon return of any such stock:

12.1 The equipment is to be returned to PWS freight prepaid by the distributor.

12.2 The equipment is to be returned in the original box with all manual and parts as it was received. Failure to do this will result in the distributor being charged for any missing items.

12.3 The distributor will be responsible for the equipment whilst it is in their or their Customer’s possession and if damaged when returned the distributor will be invoiced for any labour and parts needed to repair it or replacement cost for all missing items.

If consignment or demonstration stock is sold by the Distributor, the Distributor must immediately notify PWS, who will then raise an invoice for the stock.

13. Force Majeure

PWS shall be released from its obligations in the event of national emergency, war, prohibitive governmental regulation or if any other cause beyond the control of the parties renders provision of the Goods or Services impossible, where all money due to PWS shall be paid immediately and, unless prohibited by law, PWS may elect to terminate the Agreement.

14. Mortgage and Caveat

14.1 The Customer, as beneficial owner and/or registered proprietor, charges and agrees to grant PWS a registerable mortgage over all of the Customer’s estate and interest in any real property (including but not limited to any applicable land owned by the Customer named or described as the Customer’s Street Address in the Credit Application if applicable) (“Land”) to secure the Customer’s obligations to PWS under this Agreement including any amount owing under this Agreement (whether presently due or not). Such mortgage is to be in a form of an all obligations mortgage produced by the Law Association of New Zealand and approved by the Registrar General of Land as selected by PWS with a priority sum equal to 120% of the total contract price plus interest. PWS may require the Customer to sign a registerable Memorandum of Mortgage at any point. PWS’s solicitor will prepare the necessary documents at the Customer’s cost.

14.2 For the purposes of giving and executing such a mortgage pursuant to this clause, the Customer hereby irrevocably appoints PWS to be the Customer’s attorney. The Customer acknowledges and agrees that appointing PWS to be the Customer’s attorney is made for valuable consideration and is irrevocable.

14.3 PWS may register a caveat against the title of the Land pursuant to the agreement to mortgage contained in this clause. The Customer will meet the costs of registration and withdrawal of such caveat. For the avoidance of doubt, PWS’s right to register a mortgage or lodge a caveat to secure all monies due under this Agreement will survive termination of this Agreement.

15. Failure to Act

PWS’s failure to enforce or insist upon the timely performance of any term, condition, covenant or provision in these Terms, or PWS’s failure to exercise any right or remedy available under these Terms or at law, or PWS’s failure to insist upon timely payment of monies when due or to demand payment of any charges or fees which accrue or any extension of creditor forbearance under these Terms shall not constitute a waiver of any subsequent default or a waiver of PWS’s right to demand timely payment of future obligations or strict compliance with the Terms.

16. Legal Construction

16.1 These Terms shall be governed by and interpreted according to the laws of New Zealand and PWS and the Customer consent and submit to the jurisdiction of the Courts of New Zealand.

16.2 Notwithstanding that any provision of the Terms may prove to be illegal or unenforceable pursuant to any statute or rule of law or for any other reason that provision is deemed omitted without affecting the legality of the remaining provisions and the remaining provisions of the Terms shall continue in full force and effect.