Hydroflux Utilities NZ – Terms and Conditions of Sale
Agreement means any purchase order, contract, arrangement or understanding that arises between Hydroflux and the Client in respect of the supply of Goods or Services.
Client means a person to whom a Quotation is made, any person offering to contract with Hydroflux and any person who purchases Goods and/or Services from Hydroflux.
Containers means tanks, bulkiboxes, drums, pails and transporters supplied or provided by Hydroflux under this Agreement to or for use by the Client for the purposes of replenishing Goods.
Force Majeure Event means an event outside a party’s reasonable control including, but not limited to, fire, storm, flood, earthquake, explosion, war, invasion, act of terrorism, rebellion, sabotage, epidemic and industrial dispute.
Goods mean all goods (including chemicals, other consumables and equipment) sold, loaned or hired to the Client by Hydroflux.
GST means Goods and Services Tax within the meaning given by New Zealand Inland Revenue.
Hydroflux means Hydroflux Utilities NZ Ltd with a New Zealand Business Number of 9429046950727 and includes all agents, servants, contractors and employees of Hydroflux.
Person means and includes an individual, corporation or other legal entity.
Quotation means a written proposal for the supply of Goods and/or Services by Hydroflux that includes any price estimate.
Returnable Containers means Containers which Hydroflux designates as ‘returnable’ and are not owned by the Client.
Services means services supplied by Hydroflux to the Client under the Agreement (fixed term or otherwise).
2. Application and Acceptance
(a) These terms and conditions govern the rights and obligations of Hydroflux and the Client and apply to all contracts and other agreements for the supply of Goods and/or Services entered into by Hydroflux unless otherwise agreed in writing by Hydroflux.
(b) The acceptance of a Hydroflux quotation and/or supply of Hydroflux Goods or Services includes the acceptance of the following terms and conditions. In the event of a Client’s official order form, contract and/or attachments containing special conditions, it is understood that such conditions are only binding in so far as they are not at variance with the Hydroflux terms and conditions.
(c) These terms and conditions may only be varied with the written consent of Hydroflux and these terms and conditions shall form part of the contract unless agreed in writing by Hydroflux.
(d) Any purchase order made by a Client whether pursuant to a quotation or tender or otherwise shall not be binding on Hydroflux until accepted by Hydroflux in writing and a quotation or tender may at any time, prior to acceptance by Hydroflux of a purchase order, be varied or cancelled by Hydroflux.
3. Cancellation and Termination
(a) Orders cannot be terminated except with written consent from Hydroflux, which may be withheld without reason or granted subject to such condition as Hydroflux at its sole discretion may stipulate. Deposit payments are non-refundable.
(b) Termination will be on terms which will reimburse Hydroflux for any costs or loss incurred including but not limited to loss of profit and legal costs (on a full indemnity basis).
(c) Hydroflux may at its sole discretion terminate the Agreement without notice if the client is in breach of a term of the Agreement and fails to remedy the breach within 14 days of notice in writing by Hydroflux specifying the breach and requesting the Client to remedy it and/or the Client is declared bankrupt, resolves to go into liquidation or has a petition for its bankruptcy or winding up presented or enters into a scheme of arrangement with its creditors or if any liquidator, receiver or official manager is appointed.
(a) All quotations are valid for 14 days from the date of issue unless specifically agreed in writing by Hydroflux.
(b) Hydroflux reserves the right to review and alter any pricing provided in a written or fixed price contract on the basis that the cost to supply such Goods has altered based on unforeseen events (a Force Majeure Event) or due to an addition of, or an increase in, surcharges, levies and taxes associated with the supply of raw materials and the manufacture of such Goods including the cost of conforming with any relevant legislation, orders, regulations of by-laws between the date of quotation or tender and the date of delivery/installation of the Goods and/or supply of the Services, changes in the costs of fuel and energy, a change in the New Zealand dollar exchange rate, or changing costs due to national and international shortages of raw materials associated with the manufacture and delivery of such Goods. Hydroflux will provide written notice to the Client of any changes in pricing to a written or fixed price contract that occurs before the Agreement termination date.
The prices quoted by Hydroflux for the Goods and/or Services do not include GST and if applicable shall be additional to the quoted price.
6. Payment and Default
(a) Subject to any payment terms specified in the Quotation, and unless otherwise agreed expressly in writing, the price will be due and payable by the Client on the date specified in writing by Hydroflux but, in any case, no later than 14 days. Credit is subject to the completion by the Client of the Hydroflux credit application form and its subsequent approval in writing by Hydroflux.
(b) If the Client makes default in any payment; an application is made to a court for an order, or an order is made that the Client be wound up, or to appoint a liquidator or provisional liquidator; a controller or administrator is appointed over all or any part of the assets of the Client; the Client resolves to wind itself up, or otherwise dissolve itself, or gives notice of intention to do so or is otherwise wound up or dissolved; the Client is, or states that it is, unable to pay its debts when they fall due; or anything analogous or having a substantially similar effect to any of the events specified above happens under the law of the applicable jurisdiction, then Hydroflux may, at its option, withhold further deliveries or terminate the Agreement without notice to the Client, without prejudice to any other action or remedy which Hydroflux has or might otherwise have had, and all moneys owing and outstanding to Hydroflux
will become immediately due and payable.
(c) If any payment is not received by Hydroflux in accordance with clause 6(a), then, without prejudice to any other right or remedy, all outstanding money carries interest on daily balances until paid at a rate of interest of the current commercial overdraft rate determined by the ANZ Bank plus 3% per month, and Hydroflux may recover the amount owing together with all interest forthwith from the Client as a liquidated debt in a court or tribunal of competent jurisdiction irrespective of any claim that the Client may have against Hydroflux for anything or matter related to this Agreement. Any legal expenses and fees incurred by Hydroflux in the recovery of any money by the Client will be paid by the Client at the same time as any money owing.
7. Warranties and Liability
(a) The Goods in the Hydroflux offer or supply are normally warranting by the manufacturer. Under these circumstances our warranting liability does not extend beyond that of the manufacturer. Goods manufactured by Hydroflux, excluding chemicals, are guaranteed for a period of 12 calendar months from the date of supply or being ready for supply where supply is delayed by the Client. Goods returned against any warranting claim are to be forwarded carriage paid to our premises. Alternatively, the Company may at its discretion repair or replace these Goods at the installed location and charge the Client for travel time and costs but shall not be liable for any charges, costs or expenses incurred by the Client. Where repair or replacement is made at site, then access to, cleaning of and removal will be at the cost and responsibility of the Client. At the discretion of Hydroflux, Hydroflux will replace or repair any item found to be defective in a reasonable time period and this shall be the full extent of the Hydroflux liability. Incorrect installation, abuse, misuse, neglect, non-genuine parts and any unauthorised repairs and/or where the Client is in default in the observance or performance of any other provisions of the contract shall cancel this warranty.
(b) In no circumstances will Hydroflux be liable for any direct or indirect consequential injury, loss, damage or delay including without limitation any loss of revenue or profits.
(c) Hydroflux shall not be liable for any injury, loss, damage, or delay (consequential or otherwise, direct or otherwise) of any kind whatsoever caused directly or indirectly by the inability of Hydroflux to perform its obligations under the Agreement, whether in respect of delivery or otherwise where such failure is a result of any act or omission of Hydroflux, its employees, contractors or agents, or of any cause beyond the reasonable control of Hydroflux including, inability to obtain materials or transport, writ, epidemic, fire, flood, hostilities, strikes, war, accident, act of God, any statute rule regulation order act or omission of any government or department thereof or any local or municipal authority, any judgment or order threatened, likely or actual in favour of any person claiming any rights in respect of the Goods and Services or in any other case.
(d) Without limiting any other provision of the Agreement, if the Goods are covered under insurance taken out by Hydroflux, Hydroflux will only be liable to the extent of any indemnity provided to Hydroflux under any such contract of insurance.
8. Delivery of Goods and Provision of Services
The Goods shall be at the risk of the Client, regardless of the ownership upon transfer of control of the Goods into the possession of the Client or the carrier to the Client at Hydroflux or manufacturers premises (whichever shall be the earlier occurrence) and whether the carrier has been engaged by Hydroflux or the Client. If after notification that the Goods are ready for delivery, delivery is delayed by the Client, Hydroflux shall be entitled to arrange suitable storage at its premises or elsewhere and risk in the Goods shall pass immediately to the Client. The Client will be liable for all costs of storage, handling and other charges associated with such storage.
The Client will inspect and check all Goods received as soon as practicable upon unloading. No claim by the Client for shortages of Goods may be made unless such claim is notified to Hydroflux in writing within forty-eight (48) hours of delivery.
Title to the Goods will not pass to the Client until payment in full by the Client is received by Hydroflux in relation to such Goods and in relation to all other amounts owing to Hydroflux by the Client on any account whatsoever.
i) the Client must not deal with any Goods in which Hydroflux retains property and title in any way inconsistently with the rights and interests of Hydroflux;
ii) the Client must hold the Goods as bailee and agent for Hydroflux, and the Client must store the Goods in a separate place and in a manner such that the Goods are capable of being clearly identified as the property of Hydroflux.
11. Title in Equipment Owned by Hydroflux
Equipment that is owned by, or on loan or hire from Hydroflux to fulfil its obligations under the Agreement, if not purchased by the Client, remains the property of Hydroflux and the Client acts as bailee of the equipment, and must take proper care of the equipment, and must not sell, transfer, assign, encumber, offer for sale or otherwise deal with the rights of Hydroflux in such equipment.
(a) Unless otherwise agreed in writing, the risk in the Goods purchased by, or delivered to the Client passes to the Client upon delivery to the Client or its agent or to a carrier commissioned by the Client, whichever is earlier.
(b) Upon the delivery of Goods to the Client, its agent or a carrier commissioned by the Client, the Client covenants and warrants to Hydroflux that, in the storage and handling of the Goods, the Client:
i) will comply with all relevant laws and regulations;
ii) does, or on the acquisition of the Goods, will possess and comply with all relevant permits or licences;
iii) is familiar with and will adhere to all reasonable precautions and safety measures.
Where Hydroflux provides Container(s), the Client agrees to:
i) supply the means of appropriately handling the Container(s) at the delivery point;
ii) allow Hydroflux or its nominee access to the Container(s) at all reasonable times to enable Hydroflux to comply with its rights or obligations under this Agreement;
iii) use the Container(s) for Hydroflux Goods only;
iv) be responsible for all liability arising out of the use, handling, storage, operation and where Container(s) are not Returnable Container(s) disposal of the Container(s) and indemnify Hydroflux for any such liability, except to the extent of negligence by Hydroflux. The indemnity in this clause survives termination of this Agreement.
14. Returnable Containers
(a) Returnable Containers in which Goods purchased from Hydroflux are delivered remains the property of Hydroflux (or may be in possession by Hydroflux under agreements with third parties) and must not be used for any other product, chemical, liquid or commodity than that contained at the time of delivery and supplied by Hydroflux.
(b) The Client shall return all empty Returnable Containers delivered by Hydroflux as soon as practicable after the Goods have been removed. The Client shall compensate Hydroflux for the replacement cost of any Returnable Containers that are not returned or for the repair cost of Returnable Containers that are returned in poor order of condition.
Hydroflux does not guarantee any performance limits stated in the quotation or tender unless such limits are expressly guaranteed by Hydroflux separately in writing and regardless any estimates of power, labour, maintenance, chemical usage, sludge quantities, water discharge quality, discharge costs and disposal costs are not guaranteed.
The Client will indemnify, keep indemnified and save harmless Hydroflux and its employees, agents and contractors from and against all losses, claims, proceedings, damages, costs (including legal costs on a full indemnity basis), expenses and liabilities in respect of or arising directly or indirectly from:
i) any breach by the Client of any of its obligations under this Agreement;
ii) any act or omission not expressly sanctioned by this Agreement (whether negligent or otherwise) by the Client or its officers, employees, agents or contractors or by other third parties on or affecting the Client’s premises;
iii) the Client’s (or any third party’s) non-compliance with any laws or regulations;
iv) supply of any goods or services by any third party for or on behalf of the Client;
v) any unsafe, unsecure or unhealthy place that is necessary or convenient for Hydroflux to access to carry out its obligations under this Agreement.
Where the Agreement is operative for an agreed term as specified in writing by Hydroflux, the Agreement will commence on the date specified and remain in effect for the term specified (“initial term”). Upon expiry of the initial term, the Agreement will be deemed to be renewed automatically for successive one month terms in accordance with these terms and conditions, subject to any price variation made by Hydroflux. Upon expiry of the initial term, either party may terminate this Agreement by giving the other party no less than 7 days’ prior written notice.
If there is any conflict between these terms and conditions and a term or condition in the Quotation, these terms and conditions will take precedence to the extent of the inconsistency, unless the provision in the Quotation expressly overrides the inconsistent provisions in these terms and conditions.
19. Governing Law
This Agreement is governed by the laws of New Zealand. The parties unconditionally submit to the jurisdiction of the courts of New Zealand and in any courts having appellate jurisdiction from them.
If any provision of these terms and conditions or its application to any person or circumstance is or becomes invalid, illegal or unenforceable the provision will so far as possible be read down to the extent necessary to ensure that it is not invalid, illegal or unenforceable. If any provision or part of it cannot be so read down the provision or part of it will be deemed to be void and severable and the remaining provisions of these terms and conditions will not be affected or impaired.
21. Drawings, Documentation, Software and Programs
(a) The Client agrees that all designs, drawing specifications, illustrations, plans, instructions, documentation, software, programs and the like which are provided to the Client by Hydroflux, are the sole property of Hydroflux and shall not be produced or copied or used or disclosed to third parties as the basis for manufacture or sale or duplication of items without the written consent of Hydroflux.
(b) Software used for programming or otherwise of control systems are the property of Hydroflux and are not included in the Agreement or supply.
22. Intellectual Property Rights
The Client acknowledges that Hydroflux owns all the material created by or on behalf of Hydroflux in the performance of the Agreement by Hydroflux and in any modifications by Hydroflux to the Client’s Intellectual property rights.
(a) Any information supplied to the Client by Hydroflux relating to this Agreement (whether in writing or otherwise) is deemed as confidential and will be the Client’s confidential information unless it is:
i) public knowledge at the time of its supply to the Client;
ii) in the Client’s lawful possession prior to its supply by Hydroflux to the Client;
iii) required to be disclosed by law or court proceedings.
(b) The Client must keep any Hydroflux confidential information confidential, safe and secure, not disclose to any person (except personnel of the Client who have need to know) and return it when the Agreement terminates or expires. Neither party may make any public statement (oral or written) about this Agreement unless it has first obtained written consent from the other party. Despite the provisions of this clause, Hydroflux may reference the Agreement and Client on its website and promotional materials.