ENDEVOUR ENGINEERING & TOOLING LTD
TERMS & CONDITIONS OF TRADE
1.1 Endevour Engineering Ltd, its successors and assign or any person acting on behalf of and with the authority of Endevour Engineering Ltd.
1.2 "Client" means the person's buying the Goods as specified in any invoice, document or order, and if there is more than one Client is a reference to each Client jointly and
1.3 "Goods" means all Goods, parts, components, or Services supplied by Endevour Engineering Ltd to the Client at the Client's request from time to time (where the context so permits the terms 'Goods' or 'Services' shall be interchangeable for the other).
1.4 "Price" means the Price payable for the Goods as agreed between Endevour Engineering Ltd and the Client in accordance with clause 5 below.
2.1 The Client is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Client places an order for or accepts delivery of the Goods.
2.2 These terms and conditions may only be amended with Endevour Engineering Ltd's consent in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the client and Endevour Engineering Ltd.
3.0 Authorised Representatives
3.1 Unless otherwise limited as per clause 3.2 the Client agrees that should the Client introduce a third party to Endevour Engineering Ltd as the Client's duty Authorised representative, that once introduced that person, shall have the full authority of the Client to order any Goods orServices on the Client's behalf and/or to request any variation to the Services on the Clients behalf (such authority to continue until all requested Services have been completed or the Client otherwise notifies Endevour Engineering Ltd in writing that said person is no longer the Client'sduly authorised representative).
3.2 In the event that the Client duly authorised representative as per clause 3.1 is to have only limited authority to act on the Client's behalf then the Client must specifically and clearly advise Endevour Engineering Ltd in writing of the parameters of the limited authority granted totheir representative.
3.3 The Client specifically acknowledges and accepts that they will be the solely liable to Endevour Engineering Ltd for all additional costs incurred by Endevour Engineering Ltd (including Endevour Engineering Ltd profit margin) in providing any Goods, Services or variation/s requested bythe Client's duly authorised representative (subject always to the limitations imposed under clause 3.2 (if any).
4.0 Change in Control
4.1 The Client shall give Endevour Engineering Ltd not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client and/or any other change in the Client's details (including but not limited to, changes in the Client's name, address, contact phone or faxnumber/s or business practice). The Client shall be liable for loss incurred by Endevour Engineering Ltd as a result of the Client's failure to comply with this clause.
5.0 Price and Payment
5.1 At Endevour Engineering Ltd's sole discretion the Price shall be either:
(a)As indicated on any invoice provided by Endevour Engineering Ltd to the Client, or
(b)The Price as at the date of delivery of the Goods according to Endevour Engineering Ltd current price list: or
(c)Endevour Engineering Ltd's quoted price (subject to clause 5.2 which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.
5.2 Endevour Engineering Ltd reserves the right to change the Price:
(a)If a variation to the Goods which are to be Supplied is requested: or
(b)If a variation to the Services originally scheduled (including any applicable plans or specifications) is requested: or
(c)Where additional Services are required due to the discovery of hidden or unidentifiable difficulties which are only discovered on commencement of the Services: or
(d)In the event of increases to Endevour Engineering Ltd in the cost of labour or materials (including but not limited to overseas transactions that may increase as a consequence of variations in foreign currency rates of exchange and/or international freight and insurance charges) which arebeyond Endevour Engineering Ltd control.
5.3 At Endevour Engineering Ltd's sole discretion a non-refundable deposit may be required.
5.4 Time for payment for the Goods being the essence, the Price will be payable by the Client on the date/s determined by Endevour Engineering Ltd, which may be:
(a)On delivery of the Goods;
(b)By the way instalments/progress in accordance with Endevour Engineering Ltd's payment schedule;
(c)The date specified on any invoice or other form as being the date for payment, or
(d)Failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Client by Endevour Engineering Ltd.
5.5 Payment may be made by cash, cheque, bank cheque, electronic/on-line banking, credit card (plus a Surcharge of up to two and half percent(2.5%) of the Price), or by any other method as agreed to between the Client and Endevour Engineering Ltd.
5.6 Unless otherwise stated the Price does not include GST. In addition to the Price the Client must pay to Endevour Engineering Ltd an amount equal to the GST Endevour Engineering Ltd must pay for any supply by Endevour Engineering Ltd under this or any other agreement for the sale of theGoods. The Client must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Client pays the Price. In addition the Client must pay any other taxes and duties that may be applicable in addition to the Price except where they are expresslyincluded in the Price.
6.0 Delivery of Goods
6.1 Delivery ("Delivery") of the Goods is taken to occur at the time that:
(a)The Client or the Client's nominated carrier takes possession of the Goods at Endevour Engineering Ltd's address; or
(b)Endevour Engineering Ltd (or Endevour Engineering Ltd's nominated carrier) delivers the Goods to the Clients nominated address even if the Client is not present at the address.
6.2 At Endevour Engineering Ltd's sole discretion the costs of delivery is in additional to the Price.
6.3 The Client must take delivery by receipt or collection of the Goods whenever they are tendered for delivery. In the event that the Client is unable to take delivery of the Goods as arranged then Endevour Engineering Ltd shall be entitled to charge a reasonable fee for redelivery and/orstorage.
6.4 Endevour Engineering Ltd may deliver the Goods in separate instalments. Each separate instalment shall be invoiced and paid in accordance with provisions in these terms and conditions.
6.5 Any time or date given by Endevour Engineering Ltd to the Client is an estimate only. The Client must still accept delivery of the Goods even if late and Endevour Engineering Ltd will not be liable for any loss or damage incurred by the Client as a result of the delivery being late.
7.1 Risk of damage to or loss of the Goods passes to the Client on Delivery and the Client must insure the Goods on or before Delivery.
7.2 If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Client, Endevour Engineering Ltd is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by Endevour Engineering Ltd issufficient evidence of Endevour Engineering Ltd's rights to receive the insurance proceeds without the need for any person dealing with Endevour Engineering Ltd to make further enquires.
7.3 If the Client requests Endevour Engineering Ltd to leave Goods outside Endevour Engineering Ltd's premises for collection or to deliver the Goods to an unattended location then such Goods shall be left at the Clients sole risk.
7.4 The Client accepts and acknowledges that for components manufactured or modified for the use in race situations, it is imperative, due to the intense nature of the activity and extreme wear and tear to which parts are subjected, that all components are routinely checked for fatigue andfailure by a suitably qualified technician.
7.5 All parts/Goods manufactured or supplied by Endevour Engineering Ltd must be installed by a suitably qualified technician. Endevour Engineering Ltd accepts no responsibility or liability for any loss or damage attributable to incorrect installation, or misuse.
7.6 The Client acknowledges that Endevour Engineering Ltd is only responsible for parts that are replaced by Endevour Engineering Ltd and that in the event that other parts/Goods subsequently fail, the Client agrees to indemnify Endevour Engineering Ltd against any loss or damage to theGoods, or caused by the Goods, or any part thereof howsoever arising.
7.7 If Endevour Engineering Ltd is requested to modify parts in such a way that may weaken the part, or reduce the longevity, the Client agrees to accept all responsibility for such action, and Endevour Engineering Ltd shall not be liable in any way whatsoever for any damages or losses thatmay occur as a result of such modification.
7.8 The Client acknowledges that it is their responsibility to ensure that all Goods, parts or components which Endevour Engineering Ltd is required to install (or to connect any of its Goods to) are of the correct type, size, rating, standard, quality, colour and finish, conform with allrelevant New Zealand standards, and are as specified in the specifications and drawings and plans upon which Endevour Engineering Ltd based the quotation, and therefore, the Client agrees to indemnify Endevour Engineering Ltd against any costs incurred by Endevour Engineering Ltd inrectifying such errors if required.
7.9 Furthermore, the Client accepts and acknowledges that all race components are supplied on the understanding that if they are to be used in road registered vehicles, it is the Clients responsibility to ensure that the parts comply with New Zealand road safety legislation for road goingvehicles.
8.0 Accuracy of Client's Plans and Measurements
8.1 Endevour Engineering Ltd shall be entitled to rely on the accuracy of any plans, specifications and other information provided by the Client. The Client acknowledges and agrees that in the event that any of this information provided by the Client is inaccurate Endevour Engineering Ltdaccepts no responsibility for any loss, damages, or costs, however resulting from these inaccurate plans, specifications or other information.
8.2 In the event the Client gives information relating to measurements and quantities of the Goods required to complete the Services, it is the Clients responsibility to verify the accuracy of the measurements and quantities, before the Client or Endevour Engineering Ltd places an order basedon these measurements and quantities. Endevour Engineering Ltd accepts no responsibility for any loss, damages, or costs however resulting from the Client's failure to comply with this clause.
9.1 Endevour Engineering Ltd and the Client agree that ownership of the Goods shall not pass until: (a)The Client has paid Endevour Engineering Ltd all amounts owing to Endevour Engineering Ltd; and (b)The Client has met all of its other obligations to Endevour Engineering Ltd.
9.2 Receipt by Endevour Engineering Ltd of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honored, cleared, or recognized. 9.3 It is further agreed that:
(a)Until ownership of the Goods passes to the Client in accordance with clause 9.1 that the Client is only a bailee of the Goods and must return the Goods to Endevour Engineering Ltd on request.
(b)The Client holds the benefit of the Client's insurance of the Goods on trust for Endevour Engineering Ltd and must pay to Endevour Engineering Ltd the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed.
(c)The Client must sell, dispose, or otherwise part with possession of the Goods other than in the ordinary course of business and for market value. If the Client sells, disposes or parts with possession of the Goods then the Client must hold the proceeds of any such act on trust for EndevourEngineering Ltd and must pay or deliver proceeds to Endevour Engineering Ltd on demand.
(d)The Client should not convert or process the Goods or intermix them with other Goods but if the Client does so then the Client holds the resulting product on trust for the benefit of Endevour Engineering Ltd and must sell, dispose of or return the resulting product to Endevour EngineeringLtd as it so directs.
(e)The Client irrevocably authorises Endevour Engineering Ltd to enter any premises where Endevour Engineering Ltd believes the Goods are kept and recover possessions of the Goods.
(f)Endevour Engineering Ltd may recover possessions of any Goods in transit whether or not delivery has occurred.
(g)The Client shall not charge or grant an encumbrance over the Goods nor grant nor otherwise give away any interest in the Goods while they remain the property of Endevour Engineering Ltd.
(h)Endevour Engineering Ltd may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Client.
10.0 Personal Property Securities Act 1999 ("PPSA")
10.1 Upon assenting to these terms and conditions in writing the Client acknowledges and Agrees that:
(a)These terms and conditions constitute a security agreement for the purposes of PPSA; and
(b)A security interest is taken in all Goods previously supplied by Endevour Engineering Ltd to the Client (if any) and all Goods that will be supplied in the future by Endevour Engineering Ltd to the Client.
10.2 The Client 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 Endevour Engineering Ltd may reasonably require to register in a financing statement for financing change statement on the Personal PropertySecurities Register.
(b)Indemnity, and upon demand reimburse Endevour Engineering Ltd for all expenses incurred in registering 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 statement or a change demand without the prior written consent of Endevour Engineering Ltd; and
(d)Immediately advise Endevour Engineering Ltd 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.
10.3 Endevour Engineering Ltd and the Client agree that nothing in sections 114 (1) (a), 133 and 134 of the PPSA shall apply to these terms and conditions.
10.4 The Client waives its rights as a debtor under sections 116, 120(2), 121,125, 126, 127,129, 131, and 132 of the PPSA.
10.5 Unless otherwise agreed to in writing by Endevour Engineering Ltd, the Client waives its right to receive a verification statement in accordance with section 148 of the PSSA.
10.6 The Client shall unconditionally ratify any actions taken by Endevour Engineering Ltd under clauses 10.1 to 10.5.
11.0 Security and Change
11.1 In consideration of Endevour Engineering Ltd agreeing to supply the Goods , the Clients charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being changed, owned by the Client either now or in the future, to secure theperformance by the Client of its obligations under these terms and conditions (including but not limited to, the payment of money).
11.2 The Client indemnifies Endevour Engineering Ltd from and against all Endevour Engineering Ltd costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising Endevour Engineering Ltd rights under this clause.
11.3 The Client irrevocably appoints Endevour Engineering Ltd and each director of Endevour Engineering Ltd as the Client's true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 11 including, but not limited to, signing any documents on theClient's behalf.
12.0 Client's Disclaimer
12.1 The Client hereby disclaims any right to rescind, or cancel any contract with Endevour Engineering Ltd or to sue for damages or to claim restitution arising out of any inadvertent misrepresentations made to the Client by Endevour Engineering Ltd and the Client acknowledges that the Goodsare brought relying solely upon the Clients skill and judgment.
13.1 The Client shall inspect the Goods on delivery and shall within three (3) days of delivery (time being of the essence) notify Endevour Engineering Ltd of any alleged defect, shortage in quantity, damage, or failure to comply with the description or quote. The Client shall afford EndevourEngineering Ltd an opportunity to inspect the Goods within a reasonable time following delivery if the Client believes the Goods are defective in anyway. If the Client shall fail to comply with these provisions the Goods shall be presumed to be free from any defect or damage. For defectiveGoods which Endevour Engineering Ltd has agreed in writing that the Client is entitled to reject Endevour Engineering Ltd's liability is limited to either (at Endevour Engineering Ltd's discretion) replacing the Goods or repairing the Goods.
14.1 Returns will only be accepted provided that:
(a)the Client has complied with the provisions of clause 13.1; and
(b)Endevour Engineering Ltd has agreed in writing to accept the return of the Goods and
(c)the Goods are returned at the Client's costs within seven (7) days of the delivery date; and
(d)Endevour Engineering Ltd 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.
14.2 Endevour Engineering Ltd 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.
14.3 Non-stock items or Goods made to the Clients specifications are under no circumstances acceptable for credit or return.
15.1 For Goods not manufactured by Endevour Engineering Ltd, the warranty shall be the current warranty provided by the manufacturer of the Goods. Endevour Engineering Ltd shall not be bound by nor be responsible for any term, condition representation or warranty other than that which isgiven by the manufacturer of the Goods.
15.2 To the extent permitted by statute, no warranty is given by Endevour Engineering Ltd as to the quality or suitability of the Goods for any purpose and any implied warranty, is expressly excluded. Endevour Engineering Ltd shall not be responsible for any loss or damage to the Goods, orcaused by the Goods, or any part thereof however arising.
15.3 In the case of second hand Goods, the Client 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 Endevour Engineering Ltd as to the quality or suitability for any purpose and any implied warranty,statutory or otherwise, is expressly excluded. Endevour Engineering Ltd shall not be responsible for any loss or damage to the Goods, or caused by the Goods, or any part thereof however arising.
16.0 Consumer Guarantees Act 1993
16.1 If the Client is acquiring Goods for the purpose of a trade or business, the Client acknowledges that the provisions of the Consumer Guarantees Act 1993 do not apply to the supply of Goods by Endevour Engineering Ltd to the Client.
17.0 Intellectual Property
17.1 Where Endevour Engineering Ltd has designed, drawn or developed Goods for the Client, then the copyright in any designs and drawings and documents shall remain the property of Endevour Engineering Ltd.
17.2 The Client warrants that all designs, specifications or instructions given to Endevour Engineering Ltd will not cause Endevour Engineering Ltd to infringe any patent, registered design or trademark in the execution of the Client's order and the Client agrees to indemnify EndevourEngineering Ltd against any action taken by a third party against Endevour Engineering Ltd in respect of any such infringement.
17.3 The Client agrees that Endevour Engineering Ltd may (at no cost) use for the purpose of marketing of entry into any competition, any documents, designs, drawings or Goods which Endevour Engineering Ltd has created for the Client.
18.0 Default and Consequences of Default
18.1 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 Endevour Engineering Ltd's sole discretion such interest shall compound monthly at such a rate) afteras well as before any judgment.
18.2 If the Client owes Endevour Engineering Ltd any money the Client shall indemnify Endevour Engineering Ltd from and against all costs and disbursements incurred by Endevour Engineering Ltd in recovering the debt (including but not limited to internal administration fees, legal costs on asolicitor and own client basis, Endevour Engineering Ltd's collection agency costs, and bank dishonor fees).
18.3 Without prejudice to any other remedies Endevour Engineering Ltd may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions Endevour Engineering Ltd may suspend or terminate the supply of Goods to the Client.Endevour Engineering Ltd will not be liable to the Client for any loss or damage the Client suffers because Endevour Engineering Ltd has exercised its rights under this clause.
18.4 Without prejudice to Endevour Engineering Ltd's other remedies at law Endevour Engineering Ltd shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to Endevour Engineering Ltd shall, whether or not due for payment, becomeimmediately payable if:
(a) Any money payable to Endevour Engineering Ltd becomes overdue, or in Endevour Engineering Ltd's opinion the Client will be unable to make a payment when it falls due;
(b) The Client 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 or the Client or any asset of the Client.
19.1 Endevour Engineering Ltd 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 Client. On giving such notice Endevour Engineering Ltd shall repay to the Client any moneypaid by the Client for the Goods. Endevour Engineering Ltd shall not be liable for any loss or damage whatsoever arising from such cancellation.
19.2 In the event that the Client cancels delivery of Goods the Client shall be liable for any and all loss incurred (whether direct or indirect) by Endevour Engineering Ltd as a direct result of the cancellation (including, but not limited to, any loss of profits).
19.3 Cancellation of orders for Goods made or modified to the Client's specifications, or for non-stocklist items, will definitely not be accepted once production has commenced, or an order has been placed.
20.0 Dispute Resolution
20.1 All disputes and differences between the Client and Endevour Engineering Ltd touching and concerning this agreement shall be referred to arbitration under a single arbitrator agreed upon by both parties, or failing agreement, by two arbitrators (one to be appointed by each party) andtheir umpire (appointed by them prior to arbitration), such arbitration to be carried in accordance with provisions of the Arbitration Act 1996.
21.0 Privacy Act 1993
21.1 The Client Authorises Endevour Engineering Ltd or Endevour Engineering Ltd's agent to:
(a) Access, collect, retain and use any information about the Client;
(i) Including any overdue fines balance information held by the Ministry of Justice for the purpose of assessing the Client's creditworthiness; or
(ii) For the purpose of marketing products and services to the Client.
(b) Disclose information about the Client, whether collected by Endevour Engineering Ltd from the Client directly or obtained by Endevour Engineering Ltd from any other source, to any other credit provider or any credit reporting agency for the purposes of providing or obtaining a creditreference, debt collection or notifying a default by the Client.
21.2 Where the Client is an individual the authorities under Clause 21.1 are authorities or consents for the purposes of the Privacy Act 1993.
21.3 The Client shall have the right to request Endevour Engineering Ltd for a copy of the information about the Client retained by Endevour Engineering Ltd and the right to request Endevour Engineering Ltd to correct any incorrect information about the Client held by Endevour EngineeringLtd.
22.0 Unpaid Seller's Rights
22.1 Where the Client has left any item with Endevour Engineering Ltd for repair, modification, exchange or for Endevour Engineering Ltd to perform any other service in relation to the item and Endevour Engineering Ltd has not received or been tendered the whole of any moneys owing to it bythe Client, Endevour Engineering Ltd shall have, until all moneys owing to Endevour Engineering Ltd are paid:
(a) A lien on the item; and
(b) The right to retain or sell the item, such sale to be undertaken in accordance with any legislation applicable to the sale or disposal of uncollected goods.
22.2 The lien of Endevour Engineering Ltd shall continue despite the commencement of proceedings, or judgment for any moneys owing to Endevour Engineering Ltd having been obtained against the Client.
23.1 The failure of Endevour Engineering Ltd to enforce any provisions of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect Endevour Engineering Ltd's right to subsequently enforce that provision. If any provision of these terms and conditionsshall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
23.2 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 Tauranga Courts of New Zealand.
23.3 Endevour Engineering Ltd shall be under no liability whatsoever to the Client for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Client arising out of breach by Endevour Engineering Ltd of these terms and conditions (alternativelyEndevour Engineering Ltd's liability shall be limited to damages which under no circumstances shall exceed the Price of the Goods.)
23.4 The Client shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Client by Endevour Engineering Ltd nor to withhold payment of any invoice because part of that invoice is in dispute.
23.5 Endevour Engineering Ltd may license or sub-contract all or any part of its rights and obligations without the Client's consent.
23.6 The Client agrees that Endevour Engineering Ltd may amend these terms and conditions at any time. If Endevour Engineering Ltd makes a change to these terms and conditions, then that change will take effect from the date on which Endevour Engineering Ltd notifies the Client of suchchange. The Client will be taken to have accepted such changes if the Client makes a further request for Endevour Engineering Ltd to provide Goods to the Client.
23.7 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.
23.8 The Client warrants that it has power to enter into this agreement and has obtained all necessary authorisations to allow it to do so, it is not insolvent and that this agreement creates binding and valid legal obligations on it.