Terms of trade

1.   Definitions & Interpretation

1.1  “PHL” shall mean Progressive Hydraulics Limited, or any agents or employees thereof.

1.2 “Customer” shall mean the customer, any person acting on behalf of and with the authority of the Customer, or any person purchasing products and services from PHL.

1.3 “Products” shall mean:

a. all products, goods or materials supplied by PHL to the customer and further identified in any invoice, issued by PHL to the customer, such invoices being deemed to be incorporated into and forming part of these Terms and Conditions of Trade.

b. all of the Customer’s present after acquired products, goods or materials that PHL has performed work on, or to which products, goods or materials supplied by PHL, have been attached or incorporated.

1.4 “Services” shall mean all services and advice provided by PHL to the Customer and shall include, without limitation, the design and supply of manufactured products and metal processing services and all advice and services charged for labour, hire charges, insurance charges, or any fee or charge associated with the supply of services.

1.5 “Credit Report” means credit information about an individual, that is disclosed by a credit reporter.

1.6 “Credit Reporter” means an agency that carries on a business of reporting to other agencies, for payment information relevant  to the assessment of the creditworthiness of individuals.

1.7 All products and services supplied by PHL are subject to the laws of New Zealand.

1.8 No waiver of any breach or failure, to enforce any provision of those terms, at any time by PHL, shall in any way limit or waive the right of PHL, to subsequently enforce and compel strict compliance with these terms.

2. Orders

2.1 All orders for products and services are subject to acceptance by PHL. Any order accepted by PHL, will be on these Terms and Conditions of Trade only. These Terms and Conditions of Trade are paramount and take precedence over any terms, which may be offered by the Customer.

2.2 A purchase order to PHL for Goods and Services is not required, unless the Customer specifically supplies one.

2.3 PHL will not accept cancellation of a Customer’s order, once such goods are in production, unless the Customer pays full costs up to that time.

3. Prices

3.1 The Price of the Products and Services excludes Goods and Services Tax and disbursements (e.g. charges PHL pay to others, on the Customer’s behalf).

4. Payment

4.1 The price of the Products and Services must be paid, in cleared funds, no later than the 20th of the month following the date of the invoice, for the products and Services.

4.2 The Customer may not deduct or withhold any amount (whether by way of set-off, counterclaim or otherwise) from any money owing to PHL.

4.3 If full payment is not made to PHL, by the due date for payment, PHL may (without affecting any other rights PHL may have) require the Customer to pay default interest, at the rate of 2.5% per month. Default interest will accrue on a daily basis, from the due date, until the date when payment is actually made, and shall be due on demand. The Customer will be liable to pay all expenses and costs (including legal costs, as between solicitor and client) in connection with PHL recovering or attempting to recover any overdue amount.

5. Delivery

5.1 If the Customer does not pick up the Products, PHL will arrange the delivery of the products to the Customer.

5.2 The Customer shall pay the cost of delivery of the products to the Customer, by the usual methods of delivery, used by PHL. PHL may, at the Customer’s request, agree to arrange delivery by other methods.

5.3 PHL will in no event, be liable for any late delivery.

5.4 Delivery will be made or will deemed to have been made, when the Product is picked up by the Customer or when the Product arrives at the delivery point, agreed with the Customer.

5.5 All claims for Products damaged in transit, must be made within 7 days of delivery.

6. Risk and Ownership

6.1 The Products will be at the Customers risk, immediately on pick-up or delivery.

6.2 Legal and beneficial ownership of the Products will remain with PHL until payment in full is made:

a. For the Products and Services; and

b. For all other amounts owing by the Customer to PHL.

6.3 Until legal and beneficial ownership of the Products has passed to the Customer, the Customer will store the Products separately from other goods.

6.4 Without prejudice to any of PHL’s other remedies, if any amount payable by the Customer to PHL is overdue, or the Customer becomes insolvent, commits an act of bankruptcy, has a receiver appointed, over all or any part of the assets of the Customer, makes or is likely to make an arrangement with its creditors, has a liquidator (provisional or otherwise) appointed, or be placed under statutory or official management, then:

a. PHL may cancel any outstanding order with the Customer;

b. Any moneys payable by the Customer to PHL, whether due for payment or not, shall become immediately due and payable; and

c. PHL reserves the right, and the Customer hereby irrevocably provides consent to PHL, to enter (whether forcibly or otherwise) by its employees or duly authorized agents, onto the Customers premises, or onto any premises where Products owned by PHL are reasonably thought to be stored and repossess and subsequently resell such Products.

6.5 Notwithstanding any period of credit, if the Customer wishes to sell the Products, before ownership of them has passed, the Customer may do so as principal, in relation to the sub-purchaser. The Customer has no right to commit PHL to any contractual relationship with a third party. The Customer will account to PHL for the proceeds of such sales and the Customer will ensure that, until it has accounted for them, such proceeds are at all times identifiable, held in a separate fund on trust for PHL and at the request of PHL, be paid to PHL.

7. Specifications

7.1 These Terms and Conditions of Trade are entered into by PHL, solely on the basis of information, specifications and instructions, given by the Customer to PHL, and PHL are not deemed to have any other information, specifications or instructions, concerning the requirements of the Customer.

7.2 In particular, the Products are designed and manufactured by PHL, in accordance with the statutory, regulatory, governmental and/or industry and/or environmental requirements, controls, standards or practices notified by the Customer to PHL, in writing.

7.3 If such information or instructions are insufficient or inaccurate, or if such requirements, controls, standards or practices should alter, after the date of signing of this Customer’s Credit Account Application, PHL shall have the right to increase the price of the Products and Services.

8. Liability

8.1 It is agreed that PHL will not be liable to the Customer, whether in contract, tort (including negligence), strict liability or by virtue of the breach of any statutory duty or otherwise.

8.2 Without limiting in any way, the extent of the general exclusion, set out in clause 8.1, it is agreed that PHL will not be liable to the Customer for:

a. any damage or loss sustained by the Customer;

b. consequential indirect or special damage or loss of any kind (including loss of profits) sustained by the Customer, whether as a result of a breach of any contract in existence between the parties, faulty materials or workmanship of PHL, failure to achieve technical performance or specifications in respect of the Products, accidents, or failure to complete or deliver the Products, within the time stipulated, or any other cause whatsoever; and

c. repairs made or attempted to be made to the Products by the Customer or its employees or agents, without the written permission of PHL and any consequences arising, as a result of such repairs.

d. corrosion of any metal component of the Product during PHL’s manufacturing process or in the course of or as a consequence of the Customer’s operation of the Products;

e. fair wear and tear of the Products;

f. the cost of normal maintenance, lubrication and adjustments to the Products; and

g. loss or damage to the Products, arising directly or indirectly, fom war or civil disturbances.

8.3 In the event, notwithstanding the provisions of this clause 8, it is determined by any Court of competent jurisdiction, that PHL is liable to the Customer, whether in contract, tort (including negligence), strict liability or by virtue of the breach of any statutory duty or otherwise, then it is agreed that the total liability of PHL, in respect of all claims, that the Customer or any third party may make against PHL, will be limited to the price of the Product and Services, determined in accordance with clause 3.

9. Indemnity

9.1 The Customer shall indemnify PHL against any loss, damage or expense (including costs as between solicitor and client) suffered or incurred, as a result of any breach by the Customer of these conditions, or in recovering any moneys due by the Customer, or in exercising PHL’s rights, under these Terms and Conditions of Trade and such loss, damage or expense, shall be moneys due for the purposes of these conditions.

10. Termination

10.1 PHL may terminate these Terms and Conditions of Trade, or cancel delivery of the Products and Services, at any time before the Products are delivered, by giving written notice to the Customer. On giving such notice,  PHL shall promptly pay to the Customer, any sums paid, in respect of the Products or Services. PHL shall not be liable for any loss or damage whatever, arising from such termination.

11. Severance

11.1 If any provision or part of, in these terms is held invalid, unenforceable or illegal, for any reason, these terms shall remain otherwise in full force, apart from such provision, or part, which shall be deemed deleted.

12. Personal Property Securities Act 1999

12.1 The Customer acknowledges that clause 6. creates a “Security Interest” (as that term is defined, in the Personal Property Securities Act 1999 – “PPSA”) in the Products, Services and the proceeds thereof. The Customer will, at the request of PHL, promptly execute any documents, provide all necessary information and do anything else required by PHL, to ensure that the Security Interest constitutes a Perfected Security Interest (as that term is defined in the PPSA) and which will have priority over all other Security Interests in the Products, Services and the proceeds thereof.

12.2 The Customer agrees, to the extent permitted by law, that the Customer shall have no rights under the following provisions of Part 9 of the PPSA to:

a. receive a notice under section 114 (1);

b. receive a statement of account under section 116;

c. surplus distributed under section 117;

d. recover any surplus under section 119;

e. receive notice of any proposal of the Company to retain collateral under section 120 (2);

f. object to any proposal of PHL, to retain collateral under section 121;

g. not have goods damaged, in the event that PHL were to remove an  accession under section 126;

h. receive notice of the removal of an accession under section 129;

i. apply to the Court for an order, concerning the removal of an accession under section 131; and

j. redeem collateral under section 132;

k. reinstate the contract under section 133.

12.3 The Customer further agrees that where PHL has rights, in addition to those under Part 9 of the PPSA, those rights shall continue to apply.

12.4 The Customer waives its right under the PPSA to receive a copy of any Verification Statement (as that term is defined in the PPSA).

13. Credit Reporting Privacy Code 2004 and Privacy Act 1993

13.1 The Customer authorizes PHL to obtain credit information from the Customer and to on-supply that credit information to a Credit Reporter, for the purposes of enabling PHL to make a credit decision, affecting the Customer and for directly relating purposes, including debt collection.

13.2 The Customer warrants that all credit information supplied by the Customer, to PHL is accurate, complete, up-to-date and in all respects true and correct.

13.3 PHL acknowledges that it shall only use and supply the credit information obtained from the Customer, for the purposes contained in subclause 13.1.

13.4 The Customer authorises PHL to use all other information (excluding the credit information, which is subject to subclauses 13.1 to 13.4) obtained in respect of the Customer, for the purpose of marketing to any other party, any Products and Services provided by PHL.

13.5 The Credit Reporting Privacy Code 2004 is issued under the Privacy Act 1993. It promotes fairness, accuracy and privacy, in the practice of credit reporting. You can find the complete text of the Code, together with a summary of your rights, at www.privacy.org.nz