TERMS AND CONDITIONS OF TRADE

1. Definitions

1.1 In these Terms, unless the context indicates otherwise:

(a) “Buyer”, “you” and “your” each means the person or entity that engages the Seller for the provision of the Goods and/or Services.

(b) “Force Majeure Event” means any event or circumstance beyond our reasonable control and includes, but is not limited to any event or circumstance occasioned by, or in consequence of, any act of God, strikes, lockouts, other industrial disturbances, wars, terrorism, blockades, insurrections, riots, epidemics, pandemics or other infectious diseases, shortage of labour or civil disturbances, the order, direction, or requirement of any court, government, or local authority.

(c) “Goods” have the same meaning as in section 119(2) of the Contract and Commercial Law Act 2017 and are goods supplied by the Seller to the Buyer (and where the context so permits shall include any supply of Services).

(d) “GST” means goods and services tax as defined in the Goods and Services Tax Act 1985.

(e) “Guarantor” means that person (or persons), or entity that agrees to be liable for the debts of the Buyer on a principal debtor basis.

(f) “Intellectual Property Rights” includes, but is not limited to, copyright, and all rights conferred under statute, common law or equity in relation to inventions (including patents), trade marks, designs, domain names, rights in databases, confidential information, trade secrets, tooling design, know-how, specifications, manufacturing processes and all other proprietary rights.

(g) “Personal Information” has the meaning given to it in the New Zealand Privacy Act 2020.

(h) “PPSA” means the Personal Property Securities Act 1999.

(i) “Price” shall mean the cost of the Goods and Services as agreed between the Seller and the Buyer subject to clause 4 of the Terms.

(j) “Seller”, “us” and “our” each means Wurth New Zealand Limited (NZCN 380634) and its successors and assigns.

(k) “Services” shall mean all services supplied by the Seller to the Buyer and includes any advice or recommendations (and where the context so permits shall include any supply of Goods).

(l) “Terms” means these terms and conditions of trade.

2. Acceptance

2.1 Any instructions received by the Seller from the Buyer for the supply of Goods and Services and/or the Buyer’s acceptance of Goods and Services supplied by the Seller shall constitute acceptance of the Terms.

2.2 Where more than one Buyer has entered into this agreement, the Buyers shall be jointly and severally liable for all payments of the Price.

2.3 Upon acceptance of the Terms by the Buyer the Terms are irrevocable and can only be rescinded or amended in accordance with these Terms.

2.4 None of the Seller’s agents or representatives are authorised to make any representations, statements, conditions or agreements not expressed by the manager of the Seller in writing nor is the Seller bound by any such unauthorised statements.

3. Goods / Services

3.1 The Goods and/or Services are as described on the invoices, quotation, work authorisation or any other work commencement forms as provided by the Seller to the Buyer.

4. Price

4.1 At the Seller’s sole discretion, the Price shall be either:

(a) as indicated on invoices provided by the Seller to the Buyer in respect of Goods and Services supplied; or

(b) the Seller’s current Price, (subject to clause 4.2) at the date of delivery of the Goods and Services, according to the Seller’s current Price list.

4.2 The Price is exclusive of GST unless specifically stated otherwise. The Buyer will pay all applicable GST in addition to the Price plus any carriage and freight costs for delivery. The Seller may by giving notice to the Buyer at any time up to ten (10) days before delivery increase the Price of the Goods to reflect any increase in the cost to the Seller beyond the reasonable control of the Seller (including, without limitation, foreign exchange fluctuations, taxes and duties, provisions of any primary or secondary legislation enacted after the date of contract between the Buyer and Seller and the cost of labour, materials and other manufacturing costs). Upon receipt of such notice from the Seller, the Buyer may cancel the purchase of the Goods and/or Services that relates to the increase in Price. If the Buyer does not respond within two (2) working days of receipt of such notice, the Buyer is deemed to have accepted the increase Price notified by the Seller under this clause.

4.3 If we provide you with a quote, the quotation shall be valid for twenty-eight (28) days from the date the quote was provided to you (unless otherwise stated in the quote).

5. Payment

5.1 The Buyer must pay all amounts owing to the Seller free of any restriction or condition and without set off or deduction. The Seller may, in its sole discretion, allocate any payment received from you towards any amounts outstanding by you and may do so at the time of receipt or at any time afterwards.

5.2 Where the Buyer disputes the invoice, the Buyer must pay the undisputed amount of the Price pursuant to clause 5.1, and may withhold payment of the disputed portion until the dispute in relation to the Price payment amount is resolved.

5.3 Time for payment for the Goods or Services shall be of the essence and will be stated on the invoice, quotation, or any other order forms. If no time is stated, then payment shall be on the 20th day of the following month from the date of the invoice.

5.4 Payment may be by credit card, direct credit, by cash on delivery, or by any other method as agreed between the Buyer and the Seller.

6. Delivery Of Goods

6.1 Delivery of the Goods and/or Services shall be made to the Buyer’s address, unless otherwise agreed in writing. The Buyer shall make all arrangements necessary to take delivery of the Goods and/or Services whenever they are tendered for delivery.

6.2 The failure of the Seller to deliver shall not entitle either party to treat this contract as repudiated.

6.3 We will use our reasonable endeavours to supply the Goods and Services by the delivery date specified (if any), however, we will not be liable for any costs, losses, damages or claims relating to any failure or delay in supply, and you will not be able to terminate this agreement or any order due to any failure or delay in supply, unless we have acted negligently and if so, our liability will be limited according to clause 11. If we are unable to supply the Goods and/or Services as agreed solely due to any action or inaction of yours then we will be entitled to charge a delivery fee for re-supplying the Goods and/or Services at a later time and date, and or a 20% restocking fee based on the invoice value.

7. Retention of Title

7.1 The Seller will retain ownership of, and title to, all Goods, until:

(a) the Buyer has paid all amounts owing for the Goods and/or Services; and

(b) the Buyer has met all other obligations due to the Seller in respect of all contracts between the Seller and the Buyer, and that the Goods, or proceeds of the sale of the Goods, shall be kept separate until the Seller has received payment and all other obligations of the Buyer are met.

7.2 Receipt by the Seller of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised and until then the Seller’s ownership of rights and title in respect of the Goods shall continue.

7.3 The Buyer acknowledges that until clauses 7.1(a) and (b) have been satisfied, the Buyer shall retain possession of the Goods solely as our bailee.

7.4 The Buyer agrees that we, our agents, and our employees may (on written notice) enter onto any premises you own or control or any premises (as the invitee of the Buyer) where the Goods are situated for the purpose of inspecting and/or repossessing any Goods not paid for in full.

8. Risk

8.1 Notwithstanding the Seller retaining title to the Goods pursuant to clause 7, all risk for the Goods passes to the Buyer on delivery pursuant to clause 6.

8.2 If any of the Goods are damaged or destroyed prior to title to them passing to the Buyer, the Seller is entitled, without prejudice to any of its other rights or remedies under these Terms (including the right to receive payment of the balance of the Price for the Goods), to receive all insurance proceeds payable in respect of the Goods. This applies whether or not the Price has become payable under these Terms. The production of these Terms by the Seller is sufficient evidence of the Seller’s rights to receive the insurance proceeds without the need for any person dealing with the Seller to make further enquiries.

9. Cancellation

9.1 The Seller may cancel these Terms or cancel delivery of the Goods and/or Services by written notice at least 24 hours prior to the delivery date of the Goods and/or Services being delivered or if there is no delivery date then the Seller may cancel at any time by giving written notice.

9.2 Upon giving the notice under clause 9.1, the Seller shall promptly repay to the Buyer any sums paid in respect of the Price for those Goods and/or Services. The Seller shall not be liable for any loss or damage whatsoever arising from such cancellation.

10. Defects/Returns

10.1 The Buyer shall inspect the Goods on delivery and shall within one (1) month of delivery notify the Seller of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. If the Buyer fails to comply with this clause, the Goods shall be conclusively presumed to be in accordance with the Terms and free from any defect or damage.

10.2 For defective Goods, which the Seller has agreed in writing that the Buyer is entitled to reject, the Seller’s liability is limited to either (at the Seller’s sole discretion) replacing the Goods or repairing the Goods provided that:

(a) the Buyer has complied with clause 10.1;

(b) the Goods are returned at the Buyer’s cost within one (1) month of the notice under clause 10.1;

(c) the Seller has inspected and verified that the Goods are indeed defective in any way;

(d) the Seller 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.

10.3 The Seller may (at its sole discretion) accept the Goods for credit but this may incur a handling fee of 10% of the value of the returned Goods plus any freight.

11. WARRANTY AND LIABILITY

11.1 Nothing in these Terms will restrict, negate, modify or limit any of your rights under the Consumer Guarantees Act 1993 or the Fair Trading Act 1986 where you are not acquiring the Goods and Services for the purpose of a business or in trade.

11.2 To the extent that our liability is not otherwise limited or excluded, and to the maximum extent permitted by law, our aggregate liability to you whether in tort, contract, at law (including for a misrepresentation) or otherwise for any loss damage or injury in relation to the Goods and Services is limited to the Price actually paid by you as at the date of the liability. In such case we may, at our option, elect to:

(a) provide a refund or credit your account; or

(b) repair the Goods; or

(c) replace the Goods or re-provide the Services,

subject to clause 10, as applicable.

11.3 To the maximum extent permitted by law:

(a) to the extent that you have approved any Goods prior to delivery, then you will be deemed to have accepted such Goods if delivered to a corresponding quality;

(b) we will not be responsible or liable for any acts or omissions of any third parties;

(c) the parties agree and acknowledge that if the Goods and Services supplied by us and acquired by you are supplied or acquired in trade within the meaning of the Fair Trading Act 1986, that sections 9, 12A, and 13 of the Fair Trading Act 1986 will not apply to the agreement between us, and that it is fair and reasonable to exclude their application;

(d) the parties agree and acknowledge that if they are both in trade, and that the Goods and Services supplied by us and acquired by you are supplied or acquired in trade, that the provisions of the Consumer Guarantees Act 1993 will not apply to the agreement between us, and that it is fair and reasonable to exclude their application;

(e) the parties agree and acknowledge that the provisions of Part 3 of the Contract and Commercial Law Act 2017 will not apply;

(f) all warranties, conditions or other terms implied by law are excluded unless these Terms expressly provide or the parties agree otherwise in writing; and

(g) for the purposes of this clause you acknowledge that you had a reasonable opportunity to review these Terms, discuss them with us, and receive advice from your legal advisor, if you wished to do so.

11.4 Subject to clause 11.2 and to the maximum extent permitted by law, we will not be liable for any loss or damage of any kind whatsoever arising from the supply of Goods and Services by us to you, including direct or consequential loss and loss of profits, whether suffered or incurred by you or another person or entity and whether in contract or tort (including negligence) or otherwise and irrespective of whether such loss or damage arises directly or indirectly from Goods and Services provided by us to you.

11.5 For Goods not manufactured by the Seller, the warranty shall be the current warranty provided by the manufacturer of the Goods. The Seller shall not be bound by nor responsible for any term, condition, representation or warranty given by the manufacturer of the Goods.

12. Default & Consequences of Default

12.1 Interest on overdue amounts shall accrue daily from the date when payment becomes due, until the date of payment at a rate of 2.5% compounding per calendar month and shall accrue at such a rate after as well as before any judgement.

12.2 If the Buyer defaults in payment of any amounts when due, the Buyer shall indemnify the Seller from and against all of the Seller’s costs and disbursements including our reasonable solicitors’ fees (on a solicitor client basis) or debt collection agency fees.

12.3 Without prejudice to any other remedies the Seller may have, if at any time the Buyer is in breach of any obligation (including those relating to payment), the Seller may suspend or terminate the supply of Goods and Services to the Buyer and any of its other obligations under these Terms. The Seller will not be liable to the Buyer for any loss or damage the Buyer suffers because the Seller exercised its rights under this clause.

12.4 If any account remains unpaid at the end of the second month following the due date, in addition to clause 12.1, the following shall apply: An immediate amount of the greater of $20.00 or 10.00% of the amount overdue shall be levied for administration fees which sum shall become immediately due and payable in addition to the interest payable under clause 12.1.

12.5 In the event that:

(a) any money payable to the Seller becomes overdue; or

(b) the Buyer 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 of the Buyer or any asset of the Buyer,

then without prejudice to the Seller’s other remedies at law:

• (i) the Seller shall be entitled to cancel all or any part of any order of the Buyer which remains unperformed in addition to and without prejudice to any other remedies; and

• (ii) all amounts owing to the Seller shall, whether or not due for payment, immediately become due and payable.

12.6 In the event that:

(a) the Seller retains possession or control of the Goods; and

(b) payment of the Price is due to the Seller; and

(c) the Seller has made demand in writing of the Buyer for payment of the Price; and

(d) the Seller has not received full payment of the Price,

then, whether the title in the Goods has passed to the Buyer or has remained with the Seller, the Seller may dispose of the Goods and may claim from the Buyer the loss to the Seller on such disposal.

13. Personal Property Securities Act 1999

13.1 The Buyer acknowledges and agrees that:

(a) these Terms constitute a security agreement for the purposes of the PPSA and creates, in favour of the Seller, a security interest; and

(b) the security interest concerns all Goods which, at any time, come into possession of the Buyer, to secure payment by the Buyer to the Seller (“Security Interest”);

(c) the Terms will apply despite anything, express or implied, to the contrary contained in any purchase order, email (or its equivalent) of the Buyer; and

(d) the Security Interest shall continue until the Seller gives the Buyer a final release.

13.2 The Buyer undertakes to (as soon as reasonably possible):

(a) promptly do all things, sign any further documents and/or provide any information which the Seller may reasonably require to enable the Seller to perfect and maintain the perfection of its security interest (including by registration of a financing statement);

(b) indemnify, and upon demand reimburse, the Seller for all expenses incurred in registering a 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 demand without the prior written consent of the Seller;

(d) give the Seller not less than fourteen (14) days prior written notice of any proposed change in the Buyer’s name and/or any other change in the Buyer’s details (including but not limited to, changes in the Buyer’s address, trading number, or business practice); and

(e) immediately advise the Seller 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.

13.3 The Seller and the Buyer agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these Terms.

13.4 The Buyer waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA.

13.5 The Buyer waives its right to receive a verification statement in accordance with section 148 of the PPSA.

13.6 The Buyer unconditionally ratifies any actions taken by the Seller under this clause 13under and by virtue of the power of attorney given by the Buyer to the Seller.

14. Security & Charge

14.1 Despite anything to the contrary contained in these Terms or any other rights which the Seller may have howsoever:

(a) where the Buyer and/or the Guarantor (if any) is the owner of land, realty or any other asset capable of being charged, both the Buyer and/or the Guarantor agree to mortgage and/or charge all of their joint and/or several interest in the said land, realty or any other asset to the Seller or the Seller’s nominee to secure all amounts and other monetary obligations payable under the terms and conditions. The Buyer and/or the Guarantor acknowledge and agree that the Seller (or the Seller’s nominee) shall be entitled to lodge where appropriate a caveat, which caveat shall be released once all payments and other monetary obligations payable hereunder have been met.

(b) should the Seller elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Buyer and/or Guarantor shall indemnify the Seller from and against all the Seller’s costs and disbursements including legal costs on a solicitor and own client basis.

(c) to give effect to the provisions of this clause 14,the Buyer and/or the Guarantor (if any) hereby irrevocably nominate and appoint the Seller or the Seller’s nominee as their power of attorney for the purposes of this clause 14 and the Buyer and/or the Guarantor will unconditionally ratify any actions taken by the Seller or the Seller’s nominee under this clause.

15. Intellectual property

15.1 Where the Seller has designed or otherwise developed any Goods for the Buyer, then the Intellectual Property Rights in those Goods shall remain vested in the Seller. To the extent necessary for the Buyer to use such Goods, the Seller grants to the Buyer a royalty-free non-exclusive, non-transferrable licence to use the Goods, provided that the Buyer is not in breach of these Terms.

15.2 If any Services or provision of Goods are undertaken based on the Buyer’s designs or instructions, the Buyer warrants that the undertaking of the Services or provision of Goods by the Seller will not infringe any third party’s Intellectual Property Rights. The Buyer indemnifies the Seller for any loss, liability costs (including legal fees on a solicitor and client basis) and expenses in the event of any claim being made that the Goods or Services infringes any Intellectual Property Rights or other rights of any other person.

16. Privacy Act 2020

16.1 The Seller complies with the Privacy Act 2020 and the Information Privacy Principles set out in the Privacy Act 2020.

16.2 The Buyer and each Guarantor (if applicable) acknowledge and agree that the Seller may collect, retain, and use information that is Personal Information about the Buyer and any Guarantor for the purposes of supplying the Goods, assessing the Buyer’s credit worthiness, enforcing any rights under these Terms, including any disclosure to debt collection agencies, or marketing any goods or services the Seller thinks might be of interest to the Buyer.

16.3 The Buyer, and any Guarantor, have the right to request access to any Personal Information that the Seller holds about that person, and to request correction of it if they consider that the Personal Information is incorrect.

17. Buyer’s Disclaimer

17.1 The Buyer disclaims any right to rescind, or cancel any contract made under these Terms or to sue for damages or to claim restitution arising out of any misrepresentation made to it by any servant or agent of the Seller and the Buyer acknowledges that it buys the Goods relying solely upon its own skill and judgement.

18. General

18.1 The Seller’s failure or delay to exercise or enforce any right it has under these Terms will not operate as a waiver of the Seller’s right to exercise or enforce such right or any other right in the future.

18.2 The Terms, and all Goods and Services supplied by the Seller are supplied subject to the laws of New Zealand and the Seller takes no responsibility for changes in the law that affect the Goods or Services supplied.

18.3 The Seller will not be liable for any delay or failure in the performance of any of the obligations imposed by these Terms, to the extent that the failure is due to a Force Majeure Event.

18.4 The Seller may license or sub-contract all or any part of its rights and obligations under these Terms without the Buyer’s consent.

18.5 The Seller reserves the right (and at its sole discretion) to review and amend these Terms from time to time. The amended terms will take effect from the date on which the Seller uploads it to their website. To the extent the Buyer continues to trade with the Seller, the Buyer is deemed to have accepted the amended Terms.

18.6 These Terms constitute the sole understanding of the parties. They supersede all prior understandings, written or oral, which will be of no further force of effect.

18.7 No waiver of these Terms is binding unless agreed by the relevant parties in writing.

18.8 If any dispute arises between the parties, arising out of or in connection with these Terms, or the provision of the Goods or Services, including any question about its existence, validity or termination, the party claiming a dispute must give written notice, as soon as reasonably possible, to the other party describing the nature of the dispute and the remedy sought. The parties must first seek to resolve such dispute by meeting and using good faith, reasonable endeavours to resolve the dispute.

18.9 If any provision in these Terms shall be invalid, void or illegal or unenforceable the validity existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.