1.1 All Goods and services which are sold by Howick Ltd (also referred to Howick Engineering as "we", "our" or "us") to you are subject to these Terms of Trade ("Terms"). We may amend these Terms from time to time and if you continue to order or receive Goods and Services from us after these terms have been amended, you will be deemed to have agreed to the amended Terms. "Goods" means all products, parts and related accessories, goods or services of any kind which are supplied by us to you under these Terms.
2. Price and Orders
2. 1 Each order made must be accompanied by a purchase order number. Delivery of Goods pursuant to an order containing conditions of purchase inconsistent with these Terms will be deemed to be a counter offer and acceptance of such Goods by you will constitute acceptance of these Terms in place of any conditions of contract contained in your order.
2.2 Orders for Goods or services may not be cancelled without our prior approval in writing.
2.3 All prices quoted are exclusive of freight/delivery charges, unless otherwise stated.
2.4 The price of the Goods and any services we provide may be altered by us without notice but we may from time to time notify you of any alteration to the price of the Goods or services in writing. Unless otherwise agreed by us, the price payable for Goods and services is the price stated on the invoice for the Goods and/or services.
2.5 Where we deliver Goods or services in installments, each delivery installment will be invoiced separately without reference to any other installments.
2.6 Notwithstanding any other provision contained in these Terms, if you order Goods or services using the order process. All details (including without limit price and availability) relating to the Goods and services ordered are subject to confirmation by us, once we have received your order confirmation. We will notify you as soon as possible by telephone or email if we accept your order or if any of the details on the order need to be amended.
3.1 Any order confirmation which you provide to us will be effective once we have confirmed our acceptance of your order confirmation or, if we notify you of any amendments, once you have indicated your acceptance of the amended terms as notified to you by us under this clause 2.6.- We will not be liable for any damage, loss or expenses of any kind (whether direct or indirect) suffered or incurred by you in connection with your reliance on any order which has not been confirmed by us in accordance with this clause 2.6.
4.1 You must pay for the Goods and any services on or before delivery.
4.2 You must pay for the Goods and any services in full without deduction or set-off.
4.3 If you fail to pay for any Goods and/or services by the Due Date or otherwise fail to comply with any of these Terms, we may:
- revoke any credit accommodation - require that all amounts owing to us are immediately due and payable without deduction;
- rescind all discounted quotations or rates and recalculate outstanding charges;
- require you to pay interest on the overdue amount at a rate per annum equivalent to our then current bank overdraft rate plus five percent, calculated on a daily basis from the Due Date until the date payment is made in full; and
- suspend further deliveries of Goods and services to you until you have paid the overdue amount in full together with any interest payable thereon.
4.4 We may at any time set-off amounts owed by us to you against amounts owed by you to us.
4.5 We may at any time, refuse to extend further credit to you and our approval of your application for credit does not oblige us to extend to you any particular amount of credit.
5. Delivery and Risk
5.1 We will use reasonable endeavors to deliver Goods ordered within a reasonable time. We will not be liable for any loss or damage for failure or delay in delivery (including consequential loss or liability for any amount payable by you to a third party).
5.2 Unless otherwise agreed in writing, you will be responsible for all costs of delivery. Where we deliver the Goods to premises nominated by you and you fail to provide access to those premises at the time of delivery, we may charge you for all costs and expenses of storage and redelivery of the Goods. Where the contract includes the commissioning of the machine then the customer will ensure that power, steel supplies, space, and an operator is available at the agreed time of commissioning. Further the machine will be unpacked and placed in position by the customer. The customer will complete, execute and forward to Howick Ltd commissioning sheet confirming all matters relating to commissioning are ready. Should Howick Ltd arrive on site to commission the machine and find that there is an outstanding issue preventing the commissioning of the machine then the customer will be liable for costs to Howick Ltd in the sum of $1000 US Dollars per day compensation?
5.3 From the time that the Goods are loaded for delivery to you, or collected by you or your agent, you will bear the risk of loss of or damage to the Goods and will insure the Goods against such risk.
5.4 All claims for shortage or discrepancy between Goods ordered and Goods delivered must be notified to us within 72 hours of the date of delivery. Where Goods appear to be damaged on delivery you must contact us immediately.
6. Title and Security Interest
6.1.The Purchaser charges in favor of, and grants a security interest to, the Company in all the Purchaser’s right, title and interest in all Products supplied by the Company to the Purchaser and in the proceeds of the sale thereof, as security for the payment by the Purchaser to the Company of:
6.2. Notwithstanding the security interest in the Products created by the Purchaser in favor of the Company, the Purchaser is authorized by the Company to sell the Products for full consideration in the ordinary course of business.
6.3. Any payments made to the Company by or on behalf of the Purchaser on an unspecified basis shall be deemed to be applied in the following order:
6.4. To the fullest extent permitted by the law, the Purchaser waives any rights that the Purchaser may have now or in the future to receive a copy of any verification statement or other confirmation related to the security interest created or provided for or perfected in the manner contemplated, by the Agreement.
6.5. The Purchaser will pay to the Company each cost, loss and expense (including legal expenses on the solicitor and client basis) incurred or sustained by the Company as a result of any default by the Purchaser under the Agreement or as a result of the Company having to exercise, protect or otherwise enforce its rights under the Agreement, in each case on demand on a full indemnity basis.
7. Recovery of Goods
7 .1 If you fail to make payment in full by the Due Date, fail to comply with any of these Terms, commit an act of bankruptcy, or compound or enter into an arrangement with all or any number of your creditors, or being a company have a receiver appointed, or go into liquidation whether voluntarily or otherwise, or die, or if goods are "at risk" within the meaning of the PPSA, we will be entitled to sell Goods ordered by you and, where reasonably necessary for such purpose, may enter any premises where such Goods may reasonably be expected to be held.
8 .1 You will pay on demand all costs and expenses incurred by us in connection with the enforcement or attempted enforcement of these Terms, including, without limitation, losses, costs and expenses sustained as a result of a default by you in the performance of any of your obligations under these Terms.
9 .1 Subject to clause 9.2, and to the extent permitted by law, Goods supplied are subject to warranties and guarantees by the manufacturer only. We will pass on the benefit of these to you, without being directly liable to you for any defects in the Goods.
9 .2 We warrant that any services we provide to you will be performed in a good trade man like manner. You will have no claim with regard to Goods which have been altered or in any way utilized by you. We will not in any circumstances be liable for any loss or damage caused by willful or accidental damage, negligent or improper use, maintenance or storage, or other circumstances beyond our control.
9.3 Warranty is applicable providing machine not worked on by anyone than Howick Ltd or anyone authorized by Howick Ltd after machine leaves Howick Ltd
10 .1 No returns of Goods
11. Intellectual Property and Confidentiality
11.1 You will not disclose any Confidential Information received by you from us to any third party. "Confidential Information" means all non-public information about the Goods, including without limitation, any information pertaining to any hardware, software, specifications, technical information, documentation, drawings, manuals, research and development, planned modifications and enhancements and trade secrets.
11.2 All trademarks, trade names, copyrights, patents and other intellectual property rights used in connection with or embodied in the Goods (including without limitation their design and specifications, their hardware and software and all documentation and manuals relating to the Goods) ("Intellectual Property Rights") will be and remain the sole property of us or the supplier of the Goods to us or such other party as we may identify. You will give us prompt notice of:
11.3 If your account is terminated, you must immediately discontinue use of any of our Intellectual Property Rights in any sign, or advertising and thereafter you will not use those Intellectual Property Rights directly or in connection with your business.
11.4 All machines manufactured by us will carry our Howick branding which must not be removed, covered or obscured or modified in any way.
11.5 Clause 12.2 will survive the termination of your account with us.
12.1 We may require you, or if you are a company, your directors, to give a guarantee and indemnity
12.2 Where you comprise of more than one party, then each reference in these Terms to you will be a reference to each such party jointly and severally and your obligations under these Terms will bind each such party jointly and severally.
12.3 You will immediately notify us of any change in your name, ownership or address. Notwithstanding any such change you will remain liable for all amounts owing to us under these Terms until you have received written confirmation from us that your account has been closed, full payment of money owing has been received and a new account has been opened in the name of the new entity.
12.4 You will indemnify us for all liabilities, claims, losses, expenses, damages or costs resulting from any claim or action by a third party in relation to the Goods or any services we provide.
12.5 If requested by us, you will take out and maintain public liability insurance with an insurer, and on terms, approved by us.
12.6 Failure by us to insist upon compliance with any provisions of these Terms does not constitute a waiver of that provision and we will be entitled to insist upon compliance with all provisions of these Terms at any time.
12.7 If any provision or part of a provision of these Terms is found to be invalid or unenforceable then that provision or part thereof will be severed and the remaining provisions will continue to be binding and have full force and effect on you and us.
12.8 The laws applicable to these Terms are the laws of New Zealand
12.9 Non exclusive: Howick Ltd reserves the right to sell to any party at any time including selling direct to end users of product manufactured by Howick Ltd
12.10 Payment: as per our existing terms attached.
12.11 Spare Parts: We will provide spare parts at reasonable cost for out of warranty repairs
12.12 Machine Location: For warranty purposes Howick Ltd will be advised the physical location of all machines
12.13 Machine Control Software: All machines leaving Howick Ltd with Howick Machine Control Software will carry the normal warranty provided by Howick Ltd. If the Howick Machine Control Software is removed or modified in any way without the consent of Howick Ltd then the warranty covering the machine and all components provided by Howick is non operative.
12.14 It is the responsibility of the customer to install any Anti Virus software they deem necessary onto the machine control PC
12.15 Aftermarket attachments to machines are to be approved and or fitted by Howick Ltd