TERMS AND CONDITIONS OF SALE

GENERAL
1. Unless specifically agreed by us in writing, these Terms and Conditions of Sale (“Terms”) apply to all stock, inventory, plant, equipment, goods, accessories, components, materials, and other goods (“ goods”) and services (“ services”) provided by us to you and form part of all quotations, agreements, work authorities, credit applications, account opening forms, orders or sales and any other associated documentation (“ sales documents”). You acknowledge that that in the event of any inconsistency with these Terms and any other sales documents relating to these Terms, these Terms will prevail. No variation, modification or substitution for these Terms will be binding on us unless specifically accepted by us in writing. We reserve the right to vary, modify or replace these Terms at any time without notice and such changes shall take effect in respect of any subsequent provision of goods and services.
2. References to “ we” and “ us” and “ our” in these Terms are references to the party referred to in the sales documents relevant to you and which party shall be deemed to be contracting with you and trading as an independent licensed operator of Hydraulink Fluid Connectors Limited.
3. References to “ you” and “ your” in these Terms shall mean the person, firm, body corporate, organisation or customer, any person or entity acting for you or on your behalf or with your permission or authority as detailed in any sales documents.
4. As mentioned, we are an independent licensed operator of Hydraulink Fluid Connectors Limited (which is the “ Licensor” for the Hydraulink network) and we are solely responsible and liable to you for all aspects of the goods and services and other obligations owed to you under these Terms. You further acknowledge and agree that the Licensor has no liability to you whatsoever for any loss, cost, claim, expense or damage and howsoever arising suffered by you in respect of any aspect of the goods and/or services supplied by us to you (including, without limitation, any associated work or services, the arrangements between you and us, the termination of these Terms, and/or any failure or breach by us of the obligations owed to you under these Terms).
5. You are deemed to have accepted these Terms in any of the following circumstances:
  1. Upon signing the sales documents (whether these Terms are attached to the sales documents or not); or
  2. By providing us with confirmation in writing of acceptance (including via email, text or other means); or
  3. By paying us a deposit for the goods and/or services; or
  4. Upon our provision of the goods or commencement of the services to you.
CREDIT
1. We will only give quotations, accept your orders, agree to provide goods and services to you or accept part payment where we have first approved your credit, or where you have given us satisfactory security for payment.
PRICE AND ORDERS
1. Subject to and without limiting the application of clauses 3.2 to 3.3 below, the price payable for the goods and services shall be the final price (exclusive of GST) as may be:
  1. Quoted and/or as referred to in any sales documents; or
  2. As may be calculated based on any estimate; or
  3. Calculated by us on a cost of time, attendance, labour, travel and any transportations costs (if applicable), goods and materials basis (in relation to any urgent/emergency work (where due to the urgent/emergency nature of the goods to supplied and/or services to be completed the scope and nature of the goods to be supplied/services to be performed are not yet known and as such we are not able to give any indication of the price);
    
    and will include any other amounts, costs and expenses owing to us by you as may be referred to in any sales document. You will unless otherwise agreed, pay in addition to the price of the goods and/or services all government duties, levies or taxes, insurance charges, installation, and maintenance costs in respect of the goods and/or services.
2. Unless otherwise specifically stated by us in writing, the price for the goods or services:
  1. Where estimated or quoted is only applicable as at the time it is estimated and/or quoted in any sales document or at the time we are required to undertake any urgent/emergency work (refer clause 3.1.c.) and is subject to change in accordance with the foregoing provisions (including clause 3.3);
  2. Is in New Zealand currency;
  3. Is exclusive of GST;
  4. Does not include transportation costs (see clause 5 below);
  5. In the case of the goods, is ex-works at our store (whether applicable to the Licensor or us), New Zealand;
  6. Is based on our current rates for labour, materials, goods, and subcontractor charges; and
  7. In the case of imported goods, is calculated on current rates of exchange as follows:
    1. If we (whether directly or indirectly through our supplier) pay the overseas supplier for the imported goods prior to invoicing you or if your remittance is received after the due date for payment provided for in clause 9, the rate of exchange will be that paid by us whether directly or indirectly through our supplier) to the overseas supplier.
    2. Otherwise, the rate of exchange payable by you will be the rate quoted by our (or that of our supplier in New Zealand’s) trading bank on the morning your remittance is received. If your remittance is received after midday, it will be deemed to be received on the next day on which our trading bank (or that of our supplier in New Zealand) is open for business. If there is a rate of exchange set out on our invoice this will be the rate available at the date of invoice, and it may be subject to alteration at the time of your remittance.
    3. Adjustments for exchange rate fluctuations will be made by the issue of a credit note or further invoice to you, once the final exchange rate is established.
      
      Price may be Increased
3. Subject to any applicable statutory provisions, the price for the goods and services may be increased by us in accordance with any actual increase in the cost to us of labour, materials, goods, and transport costs (if applicable), market fluctuations and exchange rates. The increased price as notified by us to you will be the price payable by you even if the increase occurs after you accept our estimate, quotation, or sales document.
  
  Orders
4. Each approved and accepted order will constitute a separate contract for the supply of the particular goods and/or services on these Terms. We reserve the right to deliver the goods and/or services in instalments, in which case, each instalment will comprise a separate contract and you will pay for each instalment as if it were a separate order.
5. Orders of goods ex-stock are subject to the goods being available at the time notice of acceptance is received.
6. Orders are subject to the availability of import licences, if applicable.
7. Our price lists are not an offer to sell the goods and we reserve the right, either on account of lack of stock or for any other reason, to refuse to accept any order or any part of an order.
8. If, through circumstances beyond our control, we are unable to supply the goods and/or services, then we may cancel your order (even if it has already been accepted) by notice in writing to you. We will be under no liability to you or any third party for any damages or losses, direct or indirect, resulting from such cancellation.
ESTIMATES & QUOTATIONS

Acceptance of Estimates & Quotations
1. Subject to these Terms, where one is given our estimate and/or quotation is open for acceptance by you for the time stated in the sales documents. If no such time is stated, then our estimate and/or quotation will be open for acceptance by you for a period of 30 days from the date referred to in the sales document.
2. We reserve the right to withdraw any estimate and/or quotation prior to any acceptance by you either on account of lack of stock of goods or for any other reason. Withdrawal of the estimate and/or quotation will be made or confirmed in writing.
DELIVERY, RISK AND PERFORMANCE
1. Unless otherwise specifically agreed by us in writing, delivery is deemed to have occurred either when the goods are delivered by us to the third-party distribution centre used as the transport company (the “ transport medium”) for delivery to you, or if no delivery medium is involved, then at the time you collect the goods from us at our nominated warehouse. Risk in the goods passes to you on delivery. Upon delivery you become responsible for all transportation costs and charges (including shipping freight, insurance and all taxes and charges) in respect of the transportation of the goods (“ transportation costs“).
2. Unless otherwise instructed by you, or by agreement between us, after deemed delivery (see clause 5.1 above), we will arrange on your behalf for a transport medium to transport the goods to your specified transportation address. Where we make such arrangements on your behalf, we will (without being deemed to have taken responsibility for your transportation costs) make payment to the transport company and charge you freight under our schedule of freight charges. Payment for the freight charges is due by the 20 th of the month following delivery of the goods unless we notify you of other payment terms.
3. If you refuse to accept delivery of the goods through no fault of ours, then delivery will still be deemed to have been made and risk passed to you, and you will be responsible for payment for the goods in accordance with these Terms.
4. We do not accept liability or responsibility to you for any failure to perform the services (either wholly or in part) where the failure is caused by you. In such a case, you will still be responsible for payment for the cost of the services based on and in accordance with the originally scheduled dates for completion of the services.
5. We do not accept liability or responsibility for any breach of these Terms and/or delays in the delivery of the goods or completion of the performance of the services where payment from you has not been received by us on the due date for payment or where caused (directly or indirectly) by war, strikes, industrial dispute, lockouts, natural disaster, fire, flood, earthquake, tempest, epidemic or pandemic, quarantine, national emergency, lockdown, any actions, directions, orders or requirements imposed by the government of New Zealand, shortage or unavailability of stocks of goods or raw materials, shortage of labour, lack of skilled labour, failure of supplier, delay in transit, import restriction placed on the supplier, legislative governmental or other prohibition or restriction placed on the supplier, accident, hostilities civil commotion, perils of the sea, failure on the part of the supplier to deliver any part of the required goods or services, or any other cause whatsoever (whether similar to the foregoing or not) beyond our reasonable control.
6. You are responsible for insurance of all goods on delivery and further agree to insure any goods supplied by us to their full replacement value, until they have been paid for.
7. You must adhere to our claim procedure as may be advised by us for any claims you wish to make regards the goods and you allow us the sole responsibility to manage all warranty claims with our suppliers. All claims for damage during transportation or non-receipt of goods and/or services must be made using our notified claims procedure either to us or to the carrier within 3 days of receipt of the goods or service delivery. We reserve the right to charge a re-stocking fee at our discretion, if you return goods for credit.
8. Subject to clause 5.5, we will use reasonable endeavours to deliver the goods and/or services by any anticipated delivery date notified to you by us. We will not be liable to you for any loss or damage arising in any way from any delay in delivery of goods or services by the anticipated delivery date. Delay in delivery does not entitle you to cancel any order.
TESTING
1. Any estimated and/or quoted price(s) for the goods or the services does not include the costs of testing, unless specifically agreed to by us in writing. If you direct that any goods or services are to be tested, we will undertake testing in accordance with our reasonable testing protocols, but all reasonable costs involved with testing will be charged to you and you accept responsibility for those charges.
REPAIRS AND SPARE PARTS
1. To the maximum extent permitted by law, we do not warrant or guarantee that repair facilities or spare parts will be available for imported goods, unless specifically agreed by us in writing.
DRAWINGS, WEIGHTS, AND TOLERANCES
1. All illustrations, drawings and specifications accompanying any estimate, quotation, sales document, contained in our current price lists, catalogues or advertisements or specified on our website are approximate and illustrative only, to be used as a guide and are not binding unless specifically agreed by us in writing.
2. Certified dimension drawings (“ CDDs”) will be supplied upon request subject to us being in possession of the requested CDDs availability.
3. We will use all reasonable efforts to ensure all weights, measurements, process capacities and other particulars of the goods or services are materially correct. Small deviations from weight, measurement or process capacity which are considered by us (acting reasonably) as immaterial, cannot invalidate the agreement formed by these Terms nor be the subject of any claim by you.
4. Errors and omissions are subject to correction at the expense of the party at fault.
PAYMENT
1. Unless we have agreed to extend credit to you, you must pay the price specified by us for the goods and/or services in cash without any delay, counterclaim, abatement, deduction or set off before supply. Until payment is received, we are entitled to retain the goods and/or withhold the services.
2. Where we may have agreed in writing to extend credit to you, payment in full is due by the 20 th of the month following delivery of the goods or completion of the performance of the services. In this clause 9.2, except as may otherwise be agreed in writing, the term “delivery” has the meaning specified in clause 5.1 of these Terms.
3. We have an arrangement with the Licensor, whereby from time to time the Licensor will provide us with invoicing and collections assistance/support and will issue an invoice to you on our behalf for the price of the goods and services supplied by us to you. In those circumstances you will be required to pay the price to the bank account as directed on the invoice (which may include the Licensor’s bank account). Where the invoice is issued by the Licensor (on our behalf) and/or is paid to the Licensor’s bank account you acknowledge and agree that:
  1. The Licensor is acting in a limited capacity as our invoicing and payment agent (“our agent”) and any payment to our agent (where directed on the invoice) of the price and all other amounts owed by you to us will operate in the same manner as if you had paid us direct; and
  2. Where the Licensor is acting as our agent in the circumstances specified in this clause 9.3, such agency creates no liability for the Licensor to you whatsoever for any loss, cost, claim, expense or damage and howsoever arising suffered by you in respect of any aspect of the goods and/or services supplied by us to you (including, without limitation, any associated work or services, the arrangements between you and us, the termination of these Terms, and/or any failure or breach by us of the obligations owed to you under these Terms). All such liability under these Terms and for the goods and/or services supplied rests solely with us and not the Licensor.
4. We are entitled to charge compounding interest on overdue amounts at the rate of 2% per month compounding from the due date up to the date of actual payment in full. This is in addition to any other rights and remedies given to us under these Terms. Our right to charge interest on any outstanding sum continues after any judgement or other award we may receive. The charging of interest will in no way imply the granting of or extension of credit from us to you nor that you are excused in any way from your obligation to comply with these Terms.
5. You represent to us that you have the authority to bind not only yourself but also all your holding companies, subsidiary companies and associated legal entities, which do business with us. We may, at any time irrespective of liquidation, receivership, or management, set off any amount which we may owe to you or such legal entities against any amount which you or any of them may owe to us. You may not deduct or withhold any amount (whether by way of set-off, counterclaim or otherwise) from any money owing to us.
6. If you fail to make payment by the due date or exceed any credit limit set by us, we may cancel (without incurring any liability to you) any unfulfilled orders you have placed with us and/or may withhold delivery of further orders and close your credit account, at our discretion.
7. You agree to pay our costs and expenses (including actual reasonable legal costs and disbursements on a solicitor and own client basis, and debt collection costs and late payment fees) in relation to the enforcement of our rights under these Terms and/or the recovery of any amount that you owe to us.
8. Receipt by us of any cheque or other bill of exchange or any promissory note will not be deemed to be payment until it has been honoured or cleared through the banking system into our bank account. Until such time, our rights will not be prejudiced or affected, nor shall our rights be affected if any payment or transaction between you and us is overturned, challenged, or avoided by a liquidator or receiver.
9. We will not be taken to have waived any of our rights or remedies under these Terms (including our right to waive our rights to interest on overdue accounts) unless the waiver is in writing and signed by our authorised representative. Full or partial waiver of any right or remedy by us does not affect our ability to enforce that right or remedy at a later time, whether in full or in part.
10. Notwithstanding clause 9.2 above, all payments shall immediately become due to us if:
  1. You refuse to accept delivery of any goods and/or services; or
  2. We reasonably believe that the information which you have given us in your application for credit is incorrect or no longer correct and you have failed to give us correct information satisfactory to us within 5 days of our request; or
  3. You sell or otherwise dispose of any of our goods which have not been paid for without our consent or otherwise than in accordance with clause 10.3; or
  4. You become insolvent or commit any act of bankruptcy; or
  5. A receiver, liquidator or statutory manger is appointed over any of your assets or undertaking; or
  6. You make or attempt to make an arrangement or composition with creditors; or
  7. If you fail to comply with any of the provisions of clauses 10 or 11.
TITLE & SECURITY
1. In these Terms, the " PPSA" means the Personal Property Securities Act 1999 and the “ PPSR” means the Personal Property Securities Register. In this clause 7 where used, the terms “ Security Interest”, “ Proceeds”, “ Purchase Money Security Interest” and “ Perfect” have the meanings as ascribed to them under the PPSA.
2. For the purposes of the PPSA and clause 10 of these Terms, “ Goods” means (whether singularly or collectively):
  1. all stock, inventory, plant, equipment, goods, accessories, components, materials (including, without limitation, all hydraulic and non-hydraulic hoses, pipes and fittings, parts and accessories, consumables for hydraulic systems, oils and lubricants, all branded clothing and promotional materials, and all plant and equipment used in the manufacture, installation, and servicing of hydraulic systems; and
  2. any goods, accessories, components, materials for which any of the goods/items referred to in paragraph (a) of this clause 10.2 have been exchanged or traded or that have been acquired in lieu of those goods;
    
    from time to time sold or supplied (whether on consignment or otherwise) by us.
3. Ownership and title in the Goods and/or the rights to take any Proceeds from any on-sale of the Goods to a third-party, will not transfer to you until you have paid us in full for the Goods (and for any ancillary services provided (that are also due for payment at the same time as delivery of the Goods)) and have paid all other sums due to us by you in accordance with these Terms.
4. You acknowledge and agree that we are entitled at your cost to register any Security Interest/PMSI that we possess in respect of all Goods supplied and their Proceeds on the PPSR and that our PMSI/Security Interest survives until the you have paid in full for all of the Goods supplied from time to time and you further acknowledge and agree that such PMSI/Security Interest is created in order to secure payment of the price payable for the Goods (and any interest or other charges payable in relation to the Goods) and to secure the payment to us of all monies payable by you to us at any time on any account as well as the performance of all related obligations. You further agree that our PMSI/Security Interest in the Goods extends to the Proceeds (as defined in clause 16 of the PPSA) of the Goods. You acknowledge that the PMSI/Security Interest will continue until we have been in full for all Goods supplied from time to time and we give you a final release.
5. You further acknowledge and agree that until payment has been made to us in full for all of the Goods supplied:
  1. We possess a Purchase Money Security Interest (“ PMSI”) in all of the Goods supplied and their Proceeds; and
  2. If you on-sell the Goods before you have made full payment to us, you will pay the proceeds you derive from that on-sale into a separate account for the benefit of, and as trustee for, us so that those proceeds remain identifiable in connection with that on-sale and the Goods.
6. Until payment is made, you will store the Goods separately from other goods not supplied by us. You will not move the Goods outside New Zealand and will not do or omit to do or allow to be done or omit to be done, anything which could adversely affect the Goods, our rights in the Goods under these Terms or any PMSI/Security Interest created by these Terms.
7. To the fullest extent permitted by law, if you default under these Terms or fail to make any payment by the due date or if we have sufficient cause to exercise our rights under section 10 of the PPSA, then (without prejudice to our other rights and remedies):
  1. Each PMSI/Security Interest (if more than one) created in our favour will become immediately enforceable;
  2. We may at any time by notice to you declare all or any part of the monies owing to us to be due and payable immediately, either upon demand or at a later date as we may in our sole discretion specify; and
  3. We may:
    1. Enter your premises at any time and without prior notice or to enter any other land, building or premises which you are entitled to enter, as your agent, to search for, remove and take possession of the Goods and either sell or retain the Goods as per clause 10.9 (below); and/or
    2. Pay any expenses incurred in the exercise of any such powers out of revenue from, or proceeds of realisation of, the Goods; and/or
    3. Appoint a receiver in respect of any Goods (without your consent) and any receiver is authorised to do anything referred to in these Terms and otherwise to exercise all rights and powers conferred on a receiver by law.
  4. You agree that you will pay or reimburse us for any costs, losses or other liabilities we incur or sustain, (including actual reasonable legal costs and disbursements on a solicitor and own client basis), in connection with the exercise, enforcement or preservation, or attempted exercise, enforcement or preservation of any right arising pursuant to the security interest granted under these Terms. You further agree that we:
    1. have the rights of a natural person in relation to the Goods;
    2. have all other rights conferred by law (including under Part 9 of the PPSA) in relation to the Goods; and
    3. may, in your name or otherwise, at any time, do anything that you could do in relation to the Goods.
8. Nothing expressed in the provisions of this section 10 shall limit, prejudice or otherwise adversely affect the rights conferred upon us, by the PPSA.
9. Where we take possession of the Goods, we may sell the Goods by any means at any time and from any sale proceeds, deduct all reasonable costs and expenses incurred in connection with the sale and all monies owed (even if not due and payable) to us by you on any account (to the extent to which we have priority over any other interested parties). We may recover from you any shortfall on any sale or attempted sale and otherwise exercise all rights afforded to us under the PPSA.
10. You agree that you waive your rights:
  1. Under Section 114(1)(a) of the PPSA, to receive a Notice of Intention to Sell;
  2. Under Section 116 of the PPSA, to receive a Statement of Account;
  3. Under Section 120(2) of the PPSA, to receive notice of any of our proposals to retain collateral;
  4. Under Section 121 of the PPSA, to object to any of our proposals to retain collateral;
  5. Under Section 125 of the PPSA, to not have Goods damaged if we remove an accession;
  6. Under Section 129 of the PPSA, to receive notice of the removal of an accession;
  7. Under Section 131 of the PPSA, to apply to the Court for an order concerning the removal of an accession;
  8. Under Section 132 of the PPSA, to redeem collateral, if we have sold the collateral, or if we are deemed to have taken any collateral in satisfaction or part-satisfaction of your obligations;
  9. Under Sections 133 and 134 of the PPSA, to reinstate the Security Agreement; and
  10. You waive your rights to receive a copy of the Verification Statement or a Financing Change Statement relating to our security interest.
11. Notwithstanding the provisions of sections 188 and 189 of the PPSA, any notice or other document to be served by you on us may not be served or given by facsimile or electronic mail.
12. You agree:
  1. To give us not less than seven (7) working days prior notice of a proposed change of your personal or business name;
  2. That you will pay or reimburse us for any reasonable costs and expenses we incur, (including actual reasonable legal costs on a solicitor and own client basis) to register a change to or discharge of a financing statement on the PPSR whether or not the change was initiated by you; and
  3. That we have the right to allocate as we wish any payments received from you to any outstanding invoices/debts due in relation to goods and/or services supplied by us.
13. You undertake to
  1. Sign any documents and/or provide further information (such information to be complete accurate and up to date in all respects) which we may reasonably require in order to perfect our security interest and to register and maintain a financing statement or financing change statement on the Personal Property Securities Register; and
  2. Indemnify and immediately reimburse us for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register; and
  3. Not register, permit to be registered, a financing statement or financing change statement in relation to the collateral (account) in favour of a third party without our prior written consent.
14. Within 2 working days of a written request from us, you will supply us with copies of all security interests registered over your personal property. You authorise us and/or our agent to request information from any secured party relating to any security interest which is held in any personal property that is or has been in your possession or control.
15. You acknowledge that you have read, understood, and accept the provisions of this clause and the Terms.
Where the PPSA does not apply
1. This clause 11 only applies to supplies of goods made to which the PPSA does not apply.
2. Notwithstanding any period of credit and that the goods have been delivered to you, ownership, title and property in all goods supplied by us to you remains with us and does not pass to you until you have fully paid for all goods supplied, and discharged any other outstanding debts and related obligations you may owe to us, or until such time as you have sold the goods to any third parties by way of bona fide sale at full market value whether or not you have mixed the goods with others or altered their form or whether those goods relate to the services.
3. Until you have fully paid for all the goods and discharged any other debts and related obligations owing to us, you may resell the goods but strictly on the following basis:
  1. The goods supplied to you are held by you as our agent or bailee but as between yourselves and the purchaser, you sell as principal.
  2. You shall be a fiduciary in respect of the goods which will include but not be limited to keeping the goods separate and readily identifiable and in good condition while in your possession or control.
  3. If you sell the goods, then:
    1. All monies and proceeds received by you from the sale will be held by you in trust on our behalf and for our benefit and must be kept in a separate bank account and should not be mixed with any other monies including any of your funds. Those funds must be immediately paid to us once receipted (at which time you shall notify us of such receipt) into the separate bank account; and
    2. We will have the right to trace the proceeds of the sale into any account into which the proceeds have been deposited or transferred. A like right shall apply in any situation where you use the goods in any way so as to be entitled to payment from a third party.
4. If you allow goods in which we retain title to be transferred to a third party (including where you sell the goods, or transfer them to a new company owned by you or a family member or associate), you agree to notify us immediately of the transfer and provide us with the third party’s details, including their name, address, type of entity, company registration number (for a registered company) or date of birth (for an individual).
5. You shall not allow the creation of liens, encumbrances, or other security interests against the goods by any third party.
6. In all cases, if you fail to make any payment by the due date, (without prejudice to any of our other rights and remedies) we are entitled to recover, dispose or sell the goods or any of them and credit any sale proceeds toward the monies owed to us by you. You irrevocably authorise us, our agents and employees to enter your premises at any time and without prior notice or to enter any other land, building or premises which you are entitled to enter, as your agent, to search for, remove and take possession of the goods.
7. If we exercise our right of entry and/or remove the goods from your or any other premises under clause 11.6 above, you agree we have no liability for any compensation either to you or to any other person or entity claiming through you for any matters relating to the entry (including, without limitation, any damage to property or possessions arising from the exercise of our rights under clause 11.6), the removal and taking possession of goods and you agree to indemnify us in respect of any liability that thus arises.

WARRANTY AND LIABILITY LIMITATION

Warranty
1. Subject to any exception(s) as may be provided under these Terms (including the exclusions and Disclaimers below), provided you comply promptly with these Terms in all respects, we warrant that the goods manufactured and/or supplied by us are free from original (i.e. occurring at the time of original manufacture) and/or material defects and the services provided by us are free from materially faulty workmanship, under proper and normal conditions of use including any directions/guide as to use that may be provided by us or any manufacturer from time to time (subject to and in accordance with any Disclaimers and exclusions contained with these Terms), for a period of one month from the date of delivery.
2. If it appears to you that the goods are defective or the workmanship is faulty under proper and normal conditions of use within one month from the date of delivery, you must:
  1. Make a written complaint to us using the claims procedure notified by us from time to time.
  2. We must be satisfied the goods are materially defective or the workmanship is materially faulty.
  3. We must be given the opportunity (as set out in clauses 12.3 and 12.4 below) to investigate and rectify the defect or fault.
3. In the case of materially defective goods, your sole remedy, and the absolute limit of our liability to you is to either rectify such defects (if you return the defective item to us with freight paid both ways) or (at our election, if we consider that the defect is irreparable) the replacement of the defective goods (or component of the goods). If you cannot return the defective item our warranty extends only to the supply of replacement parts. You are liable to pay any freight charges for these replacement parts.
4. In the case of services involving materially faulty workmanship, your sole remedy, and the absolute limit of our liability to you is we agree to resupply the services to rectify the faulty workmanship, only where you have not attempted or authorised any repair work without our written permission.
5. In the case of materials, parts or components not manufactured by us, your sole remedy and the absolute limit of our liability to you is limited to making the benefit of any manufacturer warranties available to you (so far as those warranties can be transferred).
  
  Exclusions/Limitations on Liability
6. To the maximum extent permitted by law, except as set out above in clause 12.1, all conditions, representations or warranties of any nature whatever in respect of goods and/or services provided by us as to quality, merchantability, fitness for purpose, condition, description, manufacture, design or performance (or otherwise) of the goods or services supplied by us to you, or otherwise, whether implied by statute, common law, law, merchant, trade usage, custom, or otherwise, are expressly excluded from all contracts between us, including the contract created by these Terms. None of our representatives, employees, contractors or agents are authorised to make any representations, statements, warranties, conditions or agreements not expressly specified in these Terms and we are not in any way bound by any such representations, statements, warranties, conditions or agreements.
7. Except as expressly provided for under these Terms, our liability (and that of our employees, contractors and agents) to you whether in contract, tort or otherwise for any loss, damage or injury arising directly or indirectly from any defect in or non-compliance of the goods and services or from any other breach of our obligations under these Terms shall not (to the maximum extent permissible by law) in any event exceed an amount equivalent to the price invoiced by us for the faulty goods or services or the goods or services giving rise to the claim. We (and our employees, contractors and agents) shall not be liable to you (or any third-party attempting to claim through you) for any:
  1. Direct or indirect loss, cost, expense, or damage, including without limitation; economic loss, loss of profits or savings (or for any direct or consequential loss or damage) howsoever caused; or
  2. Loss of profits, revenue or goodwill; or
  3. Damage, injury or loss caused by your employees, agents, customers, or any other persons whatsoever (whether similar to the foregoing or not); or
  4. Damage, injury or loss to the goods due to external causes, including accident, abuse, misuse, failure to perform preventative maintenance, usage of the goods not in accordance with any instructions, any manual and/or our directions.
8. Without prejudice to clause 12.7 above, if it is determined that we become liable to you for any loss or damage that would have otherwise been excluded, then to the maximum extent permissible by law, our liability (and that of our directors, contractors, employees and agents) is limited in aggregate an amount equivalent to the price invoiced by us for the faulty goods or services or the goods or services giving rise to the claim (but under no circumstances will our liability exceed more than $30,000.00 in aggregate).
9. Exclusions to Warranties (" Disclaimers"): Without limiting the application of clauses 12.6 to 12.8 (inclusive) no warranty or liability express or implied relating to the goods or services shall extend under any circumstances whatsoever to include (which is not intended to be an exhaustive list) claims, faults, damage, injuries, losses, costs, and expenses caused:
  1. By installing, maintaining, repairing and/or using the goods outside design or other specifications (including any specifications) or outside the provisions of any user guide or manual and/or resulting from general wear and tear; and/or
  2. By any act, error, omission or negligence by you or a customer using the goods outside of the scope of the Disclaimers; and/or
  3. By vandalism, abnormal use, cosmetic deterioration, normal wear and tear; and/or
  4. By you, or your customer, failing to perform preventative maintenance and repairs in respect of the goods; and/or
  5. By poor handling by you or your customer; and/or
  6. By failure of any accessory not approved by us; and/or
  7. Or occurring after risk of loss in the goods passes to you; and/or
  8. By product maintenance and repair services by any third party not authorised by us; and/or
  9. By the acts, errors, faults, neglect, misuse, or omissions of any user of the goods; and/or
  10. By the use of the goods other than in accordance with recommended use procedures or otherwise than in accordance with our directions or recommendations; and/or
  11. By incorrect information provided by you or failure to comply with any instructions provided by us; and/or
  12. Occurring outside the relevant timeframe of any warranty provided by us.

WARNINGS AND INSTRUCTIONS
1. You agree to read and comply with any warnings, exclusions, disclaimers, and instructions affixed to or accompanying the goods and services that we supply to you so that the goods are not used for any purpose for which they are not suitable.
2. If you are reselling or transferring the goods to a third party, you agree to provide to, or make the third party aware of, such warnings, exclusions, disclaimers, and instructions.
3. We will not be liable for any failure to heed the warnings, exclusions, disclaimers and and/or instructions by you or any third party. You and any third party you sell the goods to shall make your/their own determination as to its fitness or suitability for your/their respective purposes prior to use.
CONSUMER GUARANTEES ACT 1993
1. Where the goods and service are acquired by you for the purposes of a business, then by accepting such goods and services you agree that the provisions of the Consumer Guarantees Act 1993 do not apply to the supply of our goods and services to you.
2. Where you purchase any goods from us for re-supply as, or for incorporation into, goods or services ordinarily acquired for personal household or domestic use or consumption (“ Consumer Products”) you warrant that:
  1. If you supply the Consumer Products directly to an end user/consumer you will do so using Terms which exclude liability for any claims under the Consumer Guarantees Act; and
  2. If your customer acquires the goods for re-supply, you will ensure that your customer and each person in the distribution chain will exclude liability in this contract for supply for any claims under the Consumer Guarantees Act;
    
    but in each case only where the end user/consumer acquires the Consumer Products for business purposes, and you agree to indemnify us and our suppliers against any failure by you, your customers, or any person in the distribution chain to properly contract out of liability to the business end users/consumers under the Consumers Guarantees Act.
INTELLECTUAL PROPERTY/COPYRIGHT
1. Hydraulink Fluid Connectors Limited (and not its franchisees, operators, authorised agents and representatives) owns all the intellectual property in its goods and in its brand (including the Hydraulink brand), trade marks and written material. Any sale and/or supply of the goods shall not operate so as to transfer or vest in you any patent, copyright or other intellectual property right in the goods whatsoever. You agree that you have no rights in any of those items and that you will keep any information provided to you relating to the design and manufacture of the goods confidential. All intellectual property rights in respect of the goods remain the property of Hydraulink Fluid Connectors Limited and you may not use, reverse engineer, interfere with or alter them in any way.
INFORMATION AND PRIVACY ACT
1. For the purposes of facilitating the efficient running of our business (and that the business of Hydraulink Fluid Connectors Limited), enforcing our rights under these Terms, invoicing you and collecting payments, providing marketing materials and services to you from time to time, and establishing and maintaining our relationship with you (the “
  1. To collect, enquire, retain and use all information we receive from you for the purpose;
  2. To collect, enquire, retain and use all information we will require from any third parties for the purpose and authorise those third parties to release that information to us;
  3. To hold all information given by you or any third parties to us for the purpose; and
  4. To use that information for the purpose including giving information to any other person to facilitate collection of debts from you.
2. The information will be collected, held, and used on the condition that:
  1. It will be held at our office, authorised agent or representative and/or Hydraulink Fluid Connectors Limited;
  2. It will be accessible to Hydraulink Fluid Connectors Limited and any of our/ Hydraulink Fluid Connectors Limited’s employees, contractors and agents who need access to it for the purpose; and
  3. You may request access to and correction of the information held at any time.
3. We will comply with our obligations under the Privacy Act 2020 at all times, and you will have the right to request a copy of the information about you held by us and to request the correction of any incorrect information we hold.
RESELLING
1. Where you resell the goods to any customer, you shall do so on terms and conditions consistent with the Terms (and you agree to provide to, or make the third party aware of, such warnings, exclusions, disclaimers, and instructions as are contained herein). You shall provide your customer with a copy of any user guide, manual, as well as any warranty and liability limitation documentation.
2. You will ensure that all goods sold and services performed for your customers, are (as the context requires) presented, carried-out, fitted and/or delivered to the customers strictly according to any user guide, manual, any warranty documentation, the Disclaimers and the conditions of these Terms and further agrees to ensure that any non-compliance of the goods and/or services with any of the foregoing is immediately remedied.
GENERAL
1. If we fail to enforce any Terms or to exercise our rights under these Terms, at any time, we have not waived those rights.
2. If any provision of these Terms is held to be invalid or unenforceable for any reason, the remaining provisions shall remain in full force and effect and the parties shall adjust their respective rights and obligations in accordance with the spirit and intent of the parties as shown by these Terms.
3. The parties agree to use all reasonable endeavours to discuss and resolve in good faith any disputes or differences which may arise between them, and that if such disputes or differences cannot be resolved by the parties themselves within a reasonable period, the parties will then seek to resolve any differences through mediation. Any party who claims that a dispute has arisen must give written notice to the other party specifying the nature of the dispute. On receipt of such notice, the parties must: co-operate and use reasonable endeavours to resolve the dispute quickly; and if the dispute is not resolved within 14 days of receiving the notice (or any further period as the parties may agree in writing), refer the dispute to the Disputes Tribunal or mediation. mediation shall be conducted in terms of the Mediation Protocol of the Arbitrators’ and Mediators’ Institute of New Zealand Inc. The mediation shall be conducted by a mediator and at a fee agreed by the parties, failing agreement between the parties, the mediator shall be selected, and the mediator’s fee shall be decided, by the President for the time being of the Arbitrators’ and Mediators’ Institute of New Zealand Inc
4. With the exception of clause 11 (where the local law entitling enforcement of that provision will apply and where the parties agree to the non-exclusive jurisdiction of the courts of the relevant territory), the laws of New Zealand will apply to these Terms. In relation to any legal action or proceedings arising out of or in connection with these Terms (“ Proceedings”), then subject to clause 18.3 (above) each party irrevocably submits to the exclusive jurisdiction of the Courts of New Zealand and waives any objections to the Proceedings in any such Court on the grounds of venue or on the grounds that the Proceedings have been brought in an inconvenient forum.
5. You may not assign or transfer your rights under these Terms unless agreed by us in writing. We may assign, license or subcontract all or any part of our rights and obligations under these Terms.
6. You agree to take all reasonable steps to provide a safe working place for us and our staff/contractors when attending your place of business. We do not assume any obligation of yours under any applicable health and safety legislation or regulations (including without limitation the Health and Safety as Work Act 2015), and for the purposes of any such legislation and regulations, you will at all times remain the party who controls the place of work.
7. Both parties warrant they have the power to enter into these Terms and have obtained all necessary authorisations to allow them to so and that these Terms creates binding and legal obligations on them.

TERMS AND CONDITIONS OF SALE

GENERAL

CREDIT

PRICE AND ORDERS

Price may be Increased

Orders

ESTIMATES & QUOTATIONS

Acceptance of Estimates & Quotations

DELIVERY, RISK AND PERFORMANCE

TESTING

REPAIRS AND SPARE PARTS

DRAWINGS, WEIGHTS, AND TOLERANCES

PAYMENT

TITLE & SECURITY

Where the PPSA does not apply

WARRANTY AND LIABILITY LIMITATION

Warranty

Exclusions/Limitations on Liability

WARNINGS AND INSTRUCTIONS

CONSUMER GUARANTEES ACT 1993

INTELLECTUAL PROPERTY/COPYRIGHT

INFORMATION AND PRIVACY ACT

RESELLING

GENERAL