INTAKS NZ Limited (NZBN 9429042391555) – Terms of Trade
1.1. These terms shall apply to and govern the supply by INTAKS NZ to the customer of all goods whether for purchase, rental or otherwise and any services provided by INTAKS NZ. If there is any conflict or inconsistency between these terms and the terms of any order submitted by the customer or any price list, invoice, schedule or delivery docket issued by INTAKS NZ, these terms shall prevail unless otherwise agreed in writing by INTAKS NZ.
1.2. INTAKS NZ may at any time amend these terms by notice in writing to the customer, which may be by email. Such amendments will take effect (including for all hires and services that are yet to be fully completed but not for sales that are yet to be fully completed) from the first to occur of:
(a) the date of the first order for sale and/or hire and/or lease of goods or provision of services by the customer following the date the notice was sent to the customer;
(b) if the customer has current hires of hired goods with a minimum term that are still in their minimum term, the date falling one month after the end of the minimum term; and
(c) if the customer has current hires of hired goods with a minimum term that has ended, the last day of the calendar month after the month in which the notice was sent to the customer.
The current terms and conditions are available for viewing at www.intaks.co.nz. The customer agrees to check the current terms and conditions before placing any order.
2. Quotes and Acceptance of Orders
2.1. All quotes for sale or hire or services are valid for 30 days. INTAKS NZ reserves the right to correct any errors or omissions in any quotation, invoice or schedule it provides to the customer.
2.2. The customer agrees to present orders for goods or services or hire in accordance with INTAKS NZ’s procedures and any minimum order requirements as advised by INTAKS NZ from time to time. All orders are subject to acceptance by INTAKS NZ and, in the case of goods not held in stock by INTAKS NZ, INTAKS NZ confirming pricing. INTAKS NZ reserves the right to change any quoted price before confirmation is given to the customer. Notwithstanding any arrangement granting credit to the customer. INTAKS NZ reserves the right to accept or decline any order in its absolute discretion.
2.3. Any acceptance of an order shall only be conditional acceptance and be subject to INTAKS NZ considering the customer's credit status with INTAKS NZ. If INTAKS NZ considers that the creditworthiness of the customer is unsatisfactory, it shall be entitled to cancel any order without in any way being liable to the customer.
2.4. After acceptance by INTAKS NZ no order may be cancelled or amended without the prior approval of INTAKS NZ and then only on the terms specified by INTAKS NZ.
3. Rental of Hired Goods
3.1. INTAKS NZ may (at its discretion) agree to hire out hired goods and the customer shall hire the hired goods and be entitled to use the hired goods on the terms set out herein (the "rental agreement”). Notwithstanding anything to the contrary under these terms, all hires of hired goods from time to time shall be deemed to occur under one rental agreement (and not separate agreements).
3.2. The hire period (the "hire period") starts on the day the hired goods are dispatched by INTAKS NZ and ends on the day the hired goods are received in full back at INTAKS NZ's premises (or such other location as directed by INTAKS NZ).
3.3. At the beginning of the hire period:
(a) INTAKS NZ will send the hired goods requested to the customer's nominated delivery location in one or more shipment. The customer shall be responsible for the cost of packing and transporting the hired goods from INTAKS NZ's dispatch location(s) (including INTAKS NZ’s administration fee).
(b) Prior to dispatch of hired goods, INTAKS NZ will send the customer a schedule itemising the hired goods. The customer must promptly sign and return the schedule to acknowledge the hire. The failure of INTAKS NZ to issue a schedule or the customer to sign and return a schedule does not affect the validity of the hire of the hired goods.
(c) Hired goods will be hired and delivered in minimum lot sizes as specified by INTAKS NZ.
3.4. At the end of the hire of any hired goods:
(a) The customer will deliver all of the hired goods back to INTAKS NZ's nominated delivery location, at the customer's cost, together with an itemised list of the hired goods that are being returned. The customer shall return the hired goods in a clean condition and in good working order and repair (fair wear and tear excepted).
(b) When INTAKS NZ receives the returned hired goods, it will check the goods against the signed schedule(s) for those hired goods. Any hired goods returned to INTAKS NZ which are:
(i) not in a clean condition, then INTAKS NZ will arrange cleaning and the cost of such cleaning shall be payable by the customer;
(ii) not in good working order and repair (fair wear and tear excepted), then INTAKS NZ may elect (in its sole discretion) to repair, recondition or renew such goods and the repair, reconditioning or renewal costs shall be payable by the customer; and
(iii) in INTAKS NZ's opinion (in its sole discretion), in an unrepairable condition or not returned when checked against the schedule(s), then the customer shall pay INTAKS NZ for such goods at INTAKS NZ’s then current wholesale price as advised by INTAKS NZ.
Payments for the above shall be due immediately upon written notice from INTAKS NZ to the customer and clause 6 (Payment) of these terms shall apply.
(c) INTAKS NZ reserves the right to charge the customer a handling fee on hired goods when hired goods are returned to INTAKS NZ.
3.5. The customer acknowledges and agrees that unless it provides written notice in accordance with clause 14 then at the end of the period referred to in clause 14 it is deemed to acknowledge that it has received the hired goods in good working order and clean condition and that the hired goods are fit for the purpose for which the customer requires the hired goods. The customer shall maintain the hired goods in good order and cleanliness during the hire period. The customer must not brand or mark in anyway the hired goods by paint or other means. If components need to be repaired, the customer must return them to INTAKS NZ for repair.
3.6. The customer shall be responsible in all respects for ensuring that the hired goods are at all limes installed and used safely by competent personnel (whether by the customer or any third party) in accordance with all relevant laws and guidelines including any guidelines or instructions provided by INTAKS NZ and legislative and industry requirements, standards and good practice guidelines. The customer will ensure that the hired goods are only used with other products supplied by INTAKS NZ. The customer undertakes that it will advise INTAKS NZ immediately of any loss or damage to hired goods and it will immediately cease use of any damaged hired goods.
3.7. The hired goods shall be at the sole risk of the customer throughout the hire period and until such time as the hired goods are returned to INTAKS NZ's premises (or such other location as directed by INTAKS NZ). The customer shall keep the hired goods insured and keep INTAKS NZ indemnified for any loss or damage to the hired goods (including in transit). The customer shall hold full replacement insurance for the hired goods with the interest of INTAKS NZ as secured party noted, and Public Liability Insurance for not less than $2,000,000 at all times during the hire period(s), each with a reputable insurance company. The customer shall provide a certificate of currency for such insurance if requested by INTAKS NZ.
3.8. INTAKS NZ shall be entitled, and the customer authorises INTAKS NZ, to enter the customer's premises and any other property where the hired goods are situated (including any premises, land and buildings that the customer may enter upon), without being liable in any way to the customer or another other person, at any time in an emergency or otherwise without prior notice to enforce any rights it has under these terms and/or to inspect the hired goods. INTAKS NZ reserves the right to add additional marking on the hired goods to distinguish the hired goods from the customer's other equipment.
3.9. INTAKS NZ may terminate the hire of any hired goods (including during any minimum hire period) by giving 20 working days' notice to the customer, and in the event of such termination the provisions of clause 1O (Default and Termination) shall apply.
4. Price of Goods and Services and Hire Charges
4.1. Subject to clause 4.2, the price of the sale goods (the "price") shall be the price notified to the customer by INTAKS NZ at the date of acceptance of the customer's order plus GST and government duties, levies or taxes. The customer shall pay all packing and transport costs (including INTAKS NZ’s administration fee).
4.2. Any increases in the cost of supply of the sale goods (including without limitation increases in the price of sale goods not held in stock by INTAKS NZ or due to variations in exchange rates, the cost of labour, freight, handling or insurance or any duties or taxes) between the date of acceptance of the order and the date of delivery of the sale goods shall be borne by the customer.
4.3. Any discounts or rebates on the price offered by INTAKS NZ are conditional on payment being made in cleared funds on or before due date. If the customer fails to comply with that condition, payment of the full amount of the price shall become immediately due and payable.
4.4. Hire charges on hired goods for the hire period will be at a daily (based on a week of 7 days), weekly, monthly or other periodic rate as specified in the INTAKS NZ invoice for hired goods that are supplied (the "hire charges") plus GST and government duties, levies or taxes. Hire charges apply for the full hire period. There will be no reduction to the hire charges for weekends, holidays, inclement weather, natural disasters or for any other reason including, without limitation, any one or more of the following: epidemics and measures implemented to prevent or limit an epidemic, strikes, lockouts, cessation of labour, transport delays and Government or other public authority restrictions, interference or control. INTAKS NZ may notify the customer of a minimum hire period for any hired goods, including by email, before the hire is agreed between INTAKS NZ and the customer.
4.5. INTAKS NZ reserves the right to amend hire charges for hired goods at any time by providing notice of revised hire charges. In the event INTAKS NZ increases the hire charges the customer shall be entitled to terminate the hire of those hired goods with immediate effect by notice in writing to INTAKS NZ. If the customer does choose to terminate the hire in accordance with this clause the provisions of clause 3.4 will apply.
4.6. Charges for services shall be the price notified to the customer by INTAKS NZ at the date of acceptance of the customer's request for services plus GST and government duties, levies or taxes.
5. Title and Risk
5.1. Title in all sale goods shall pass to the customer when all amounts owing in respect of all sale goods have been paid in full in cleared funds. All risk of any loss or damage or deterioration in respect of the sale goods shall pass to the customer upon dispatch to the customer. The customer shall be responsible for obtaining insurance for full replacement of the sale goods from the time they are dispatched until such time as the sale goods are paid for in full and shall, if demanded by INTAKS NZ, produce evidence of such insurance cover. Until such time as the sale goods are paid for in full the customer agrees that it will not create or allow any charge, lien, security interest or any other encumbrance whatsoever over or in any of the sale goods or sell or otherwise dispose of the sale goods without the prior written consent of INTAKS NZ.
5.2. Notwithstanding the above, the customer acknowledges that it has no right, title or interest in any hired goods and that the hired goods will at all times remain the property of INTAKS NZ. The customer agrees that it will not create or allow any charge, lien, security interest or any other encumbrance whatsoever over or in any of the hired goods or sell or otherwise dispose of, or part with possession of (other than for installation and use on a customer’s client site), the hired goods without the prior written consent of INTAKS NZ. Hired goods must not be shipped or used outside of New Zealand. All risk of the hired goods shall be in accordance with clause 3.7 of these terms.
5.3. The customer must at its own cost as bailee store the hired goods, and the sale goods (until such time as all amounts owing in respect of all sale goods have been paid in full), separately from other equipment in the possession of the customer and must clearly distinguish and identify the hired goods and the sale goods as INTAKS NZ's equipment.
5.4. In consideration for the sale of sale goods to the customer, the customer agrees that it will not ship sale goods outside of New Zealand, sell sale goods to any person outside of New Zealand or knowingly sell sale goods to any third party for on sale outside of New Zealand.
6.1. Payment for sale goods and for services from the customer to INTAKS NZ are due in cleared funds on the date of invoice unless credit terms are extended to the customer. Where credit is extended to the customer, payment is overdue if not paid by the 20th day of the month following date of invoice, unless otherwise agreed in writing by INTAKS NZ. The customer may be required to pay INTAKS NZ a deposit before delivery of sale goods or the provision of services or the hire of hired goods.
6.2. Payment of the hire charges for hired goods shall be overdue if not paid in cleared funds by the 20th day of the month following date of invoice, unless otherwise agreed in writing by INTAKS NZ. INTAKS NZ reserves the right to require the customer to pay hire charges in advance and prior to dispatch.
6.3. Time is of the essence in respect of the payment obligations of the customer. If payment is overdue that shall constitute a breach of these terms and the customer will upon demand in writing pay to INTAKS NZ interest at the rate of 2.0% per month (or part month) on any amounts due and unpaid from the date that payment was due until payment in full in cleared funds is received by INTAKS NZ.
6.4. INTAKS NZ may at its discretion apply any payments it receives from the customer in and towards the satisfaction of any indebtedness of the customer and it shall not be bound by any terms or qualifications that the customer may make in relation to payments made under this or any other contract with INTAKS NZ.
7. Credit Terms
7.1. INTAKS NZ reserves the right at its discretion to grant or decline to grant credit to the customer and to suspend or cancel any terms of credit with effect from the date of notice to the customer.
7.2. INTAKS NZ reserves the right to impose a credit limit which may be altered at INTAKS NZ's discretion with effect from the date of notification to the customer. If the credit limit is at any time exceeded that shall constitute a breach of these terms. INTAKS NZ may, in addition to its other remedies, refuse to accept any further orders from the customer and/or withhold delivery of any goods ordered by the customer or the provision of services to the customer under any contract until the breach is remedied to the satisfaction of INTAKS NZ.
7.3. The customer shall, if required by INTAKS NZ, arrange for the customer's liability to be guaranteed by third persons, or secured by securities, on terms satisfactory to INTAKS NZ. This requirement may be imposed by INTAKS NZ at any time and INTAKS NZ may suspend the provision of credit to the customer and/or withhold delivery of any goods ordered by the customer under any contract pending its fulfilment to the satisfaction of INTAKS NZ.
8. Engineering and Design Services
8.1. INTAKS NZ does not provide engineering or design services and does not take any responsibility for drawings, designs or specifications, or any advice about the erection or suitability of goods for any particular purpose (and the responsibility for, and costs of, obtaining these services are for the customer). If INTAKS NZ arranges for engineering or design services on behalf of the customer or otherwise provides any drawings, designs, specifications or advice to the customer, the customer agrees that INTAKS NZ does not accept responsibility for those things. INTAKS NZ specifically excludes all liability and all representations, warranties or guarantees as to the practicability, effectiveness or safety of the drawings, designs, specifications, services or advice. The customer agrees that it accepts all responsibility for, and will take all prudent steps in respect of, all drawings, designs, specifications and engineering or design services (including engaging expert advice specific to the relevant site and job requirements) and ensuring that all scaffolding and edge protection are safe and fit for purpose.
9.1. The customer will upon demand in writing pay all INTAKS NZ's expenses and legal costs (on a solicitor/agent/client basis) in or in connection with the registration of a financing statement or financing change statement relating to the security interest created by these terms or obtaining an order under section 167 of the PPSA or the collection of overdue moneys or the exercise, enforcement or preservation of any right or Interest under these terms or any other contract with the customer.
10. Default and Termination
10.1. For the purposes of this clause 10, each of the following is an “event of default”:
(a) if any amounts payable by the customer to INTAKS NZ are overdue under these terms or any other contract with INTAKS NZ; or
(b) if the customer fails to meet any obligation under these terms or any other contract with INTAKS NZ or any of its related or associated entities; or
(c) if the customer becomes insolvent or is subject to any actual or threatened dissolution, winding up, bankruptcy, liquidation, statutory management or receivership or any event which generally precedes such an event; or
(d) if an arrangement with the customer's creditors is made or likely to be made; or
(e) if the customer ceases or threatens to cease carrying on business; or
(f) if the ownership or effective control of the customer is transferred or there are any material changes in ownership or control, or the nature of the customer's business is materially altered; or
(g) if INTAKS NZ (in its sole discretion) believes the customer is using the hired goods inappropriately, illegally, unsafely or in any way other than for their intended purpose; or
(h) an event occurs or information becomes known to INTAKS NZ, which in its opinion might materially affect the customer’s creditworthiness, the value of the goods sold or hired or the customer’s ability or willingness to comply with its obligations under these terms or any other contract with INTAKS NZ.
10.2. Where any event of default occurs INTAKS NZ may, but without prejudice to its other rights and remedies, take one or more of the following actions:
(a) cancel or suspend the customer's entitlement to credit and require payment in cash on or before delivery of any goods ordered by the customer under any contract and/or withhold supply of any goods or the provision of services or the hire of any hired goods until the customer has paid or discharged all sums owing to INTAKS NZ;
(b) INTAKS NZ shall be entitled to suspend INTAKS NZ’s performance and/or terminate all or any part of the contract, rental agreement or lease to own agreement recorded in these terms and/or any other contract or contracts with the customer by notice in writing to the customer;
(c) INTAKS NZ may appoint a receiver in respect of all goods (including their proceeds) supplied to the customer and any such receiver may take possession of the goods and sell them and otherwise exercise all rights and powers conferred on a receiver by law;
(d) INTAKS NZ may take possession of and sell or re-hire goods and for that purpose the customer grants INTAKS NZ the irrevocable right or licence by its agents, servants and employees to enter the premises of the customer or any other property where the goods are situated (including any premises, land and buildings that the customer may enter upon) without being liable in any way to the customer or another other person, and the customer shall indemnify INTAKS NZ upon demand in writing for all claims by any third party for any losses resulting from INTAKS NZ effecting repossession. INTAKS NZ may also take this action if goods are at risk (as defined by section 109 of the PPSA);
(e) require the customer to pay on demand, and the customer must pay, any costs, expenses and losses incurred by INTAKS NZ in connection with the event of default or enforcement actions taken by INTAKS NZ under this clause 10.2.
10.3. Without limiting INTAKS NZ’s rights under this clause 10, upon termination of the contract recorded in these terms, rental agreement or any other contract that incorporates these terms whether under this clause 10 or otherwise:
(a) all sums owing by the customer under the contract to INTAKS NZ shall become immediately due and payable (irrespective of the contracted date for payment); and
(b) where the customer has hired goods:
(i) the customer shall immediately cease using the hired goods; and
(ii) the customer will immediately arrange for the hired goods to be returned to the customer's premises and will take all steps that may be reasonably required by INTAKS NZ to immediately return the hired goods to INTAKS NZ's premises (or such other location as directed by INTAKS NZ).
11. Personal Property Securities Act
11.1. If INTAKS NZ already holds a perfected security interest in the goods supplied to the customer together with their proceeds, that security interest is continued under these terms. Otherwise, the customer grants a security interest over all present and after-acquired goods supplied by INTAKS NZ and their proceeds as security for payment of the price of the sale goods and/or the hire charges for the hired goods and/or the charges for services and/or any other moneys owing from the customer to INTAKS NZ under these terms or otherwise from time to time.
11.2. The customer will provide such information and do such acts and execute such further documents as in the opinion of INTAKS NZ may be necessary or desirable to enable INTAKS NZ to perfect under the PPSA the security interest created by these terms as a first priority interest or with such other priority as INTAKS NZ may agree in writing.
11.3. INTAKS NZ may do all things which it thinks desirable to remedy any default by the customer or otherwise protect the goods or the security interest created by these terms.
11.4. The customer irrevocably appoints INTAKS NZ to be the customer's attorney to do anything which the customer agrees to do under these terms and anything which the attorney thinks desirable to protect INTAKS NZ's interests under these terms and the customer ratifies anything done by an attorney under this clause 11. The customer agrees sections 114(1)(a), 133 and 134 of the PPSA shall not apply to these terms or the security under these terms.
11.5. The customer waives the customer's right to receive a copy of the verification statement confirming registration of a financing statement or a financing change statement relating to the security interest created by these terms.
11.6. The customer agrees that none of the customer's rights as debtor under sections 116, 119, 120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA shall apply to these terms.
11.7. The customer also agrees, where INTAKS NZ has rights in addition to those in Part 9 of the PPSA, those rights will continue to apply.
11.8. The customer must advise INTAKS NZ immediately of any changes to the information provided to INTAKS NZ in respect of the customer, and at least 5 working days before changing the customer's name or trading name.
11.9. The customer shall ensure that all third parties who may from time to time hire or lease any of the goods (when hired goods or sale goods sold on credit and not paid for in full) from the customer are advised of INTAKS NZ's security interest in such goods.
11.10. Enforcement of Security Interest: The security interests created by this Agreement become enforceable if any of the following events of default occur:
(a) The Franchisee breaches the terms of this agreement or any other agreement between the parties;
(b) INTAKS believes the Franchisee is insolvent or has otherwise committed an act of insolvency, a receiver is or is about to be appointed in respect of any of its assets, or a liquidator is or is about to be appointed in respect of the Franchisee;
(c) The Franchisee’s property is at risk as that term is defined in the PPSA.
11.11. Appointment of Receiver: If an event of default under clause 11.10 occurs, INTAKS may at any time, in addition to any rights, remedies or other powers otherwise conferred upon INTAKS by law, appoint a receiver in respect of all or part of the Franchisee’s present and after acquired personal property on the terms set out in the then current Memorandum of General Terms and Conditions of the Auckland District Law Society Inc’s General Security Agreement, such terms are incorporated in full into this agreement (with any necessary changes) as if those terms were set out in full in this agreement.
12. Health and Safety
12.1. The customer acknowledges that it has duties under the Health and Safety at Work Act 2015 (“HSWA”)), in respect of use of the hired goods.
12.2. The customer will:
(a) at all times strictly and fully comply with all duties imposed on it and its sub-contractors and employees under the HSWA, including but not limited to its duties as a Person Conducting a Business or Undertaking (“PCBU”) (as that term is defined in the HSWA);
(b) pay particular regard to its duties under s43 HSWA as a PCBU who installs, constructs or commissions plant or structures:
(c) if any hazard to people arises in connection with its use of the hired goods, immediately take all reasonably practical steps to eliminate that hazard and, to the extent that the hazard cannot be eliminated, to minimise the risk as far as reasonably practicable; and
(d) comply with all reporting requirements and manage every Incident that has or may have resulted in harm to any person, property, or the environment.
12.3. The customer warrants:
(a) it will ensure that any hired goods are only used with other products supplied by INTAKS and are always installed and used safely (whether by the customer or any third party who sub hires from the customer) by suitably qualified, competent and experienced installers in accordance with and good industry practice, regulatory requirements, and all relevant product and industry guidelines; and
(b) the customer will inspect the hired goods before use and ensure that hired goods are only used if they are fit for the purpose for which they are to be used.
13. Intellectual Property
13.1. The customer acknowledges that INTAKS NZ owns or is licensed to manufacture and supply the goods which contain patents and copyrighted designs ("IP"). The IP shall remain vested in [INTAKS NZ] and the purchase or hire of the goods does not transfer any right in the IP or right to manufacture goods or otherwise use the IP other than for the use of the goods as supplied. The customer does not acquire any right, title or interest in any copyright, trademarks or other intellectual property rights relating to any of the goods. The customer must not cause, assist or permit anything to occur which may interfere with, damage or endanger the IP.
13.2. The customer must not, without the prior written consent of INTAKS Holdings Limited, use the brand “INTAKS" and related intellectual property which belongs to INTAKS Holdings Limited. Approval must be sought from INTAKS Holdings Limited for using the “INTAKS” brand on the customer's advertising and marketing materials, business cards, websites, vehicles, signage and similar. If consent is given by INTAKS Holdings Limited, the usage is valid only so long as INTAKS NZ supplies the customer provided that the consent may be withdrawn at any time. Should INTAKS NZ cease to supply the customer or the consent be withdrawn, this right ceases automatically, and the customer must immediately cease any usage of the “INTAKS " brand and related intellectual property in all of its advertising and marketing materials, business cards, websites, vehicles, signage, stationery, quotes, invoices and similar.
13.3. The customer must advise INTAKS NZ immediately if it becomes aware of any unauthorised use or attempted use by any person of INTAKS NZ's brand or IP or other intellectual property rights.
13.4. The customer must ensure that all confidential information it receives from INTAKS NZ is protected and kept strictly confidential. Any disclosure to the customer's employees and advisors shall only be on a need to know basis and on the basis that those parties at all times maintain strict confidentiality.
14. Customer Inspection and Defects of Goods
14.1. The customer must inspect all goods on delivery and must, within 2 working days of delivery, notify INTAKS NZ in writing of any goods that are faulty or not delivered to the customer or not in good and fit for purpose condition. Goods will be deemed to conform to these terms despite minor discrepancies or variations which are usual for goods of the nature supplied or anything occurring in transit with a third party even if INTAKS NZ arranged for that transportation. The customer shall afford INTAKS NZ an opportunity to inspect the goods within a reasonable time following delivery (and will, on request and at the cost of INTAKS NZ, send the goods in question to INTAKS NZ for inspection) if the customer believes the goods are faulty or not in a good and fit for purpose condition in any way. If the customer shall fail to comply with these provisions (time being of the essence), the goods shall be deemed to be delivered in full, without fault, and in good and fit for purpose condition.
15. Warranty and Limitation of Liability
15.1. Subject to the conditions of warranty set out in clause 15.2, INTAKS NZ warrants that if any defect in any workmanship of sale goods supplied becomes apparent and is reported to INTAKS NZ in writing within two (2) years of the date of dispatch (time being of the essence) then INTAKS NZ will either (at INTAKS NZ's sole discretion) repair the defect or replace the sale good. These terms will apply to any repaired or replacement goods supplied by INTAKS NZ except that any warranty period will be deemed to have run from the date of dispatch of the sale goods originally supplied.
15.2. The conditions applicable to the warranty given by clause 15.1 are:
(a) The warranty shall not cover any defect or damage which may be caused or partly caused by or arise through:
(i) Failure on the part of the customer to properly maintain any sale goods; or
(ii) Failure on the part of the customer or any third person to follow any instructions or guidelines provided by INTAKS NZ; or
(iii) Any use of any sale goods otherwise than for any application specified in guidelines provided by INTAKS NZ; or
(iv) Any use of any sale goods other than with other INTAKS NZ products; or
(v) The continued use of any sale goods after any defect becomes apparent or would have become apparent to a reasonably prudent operator or user; or
(vi) Wear and tear, accident, act of God, alteration, negligence, wilful damage or abnormal storage or use (including, without limitation, through damage by a crane or other machine); or
(vii) Anything occurring in transit with a third party even if INTAKS NZ arranged for that transportation.
(b) The warranty shall cease and INTAKS NZ shall thereafter in no circumstances be liable under the terms of the warranty if the sale goods are repaired, altered or overhauled without INTAKS NZ's consent.
(c) In respect of all claims INTAKS NZ shall not be liable to compensate the customer for any delay in either replacing or repairing the sale goods or in properly assessing the customer's claim. With respect to hired goods, to the extent permitted by law, INTAKS NZ excludes all warranties, conditions, rights and remedies to which the customer may otherwise be entitled in relation to the hired goods.
15.3. Any date given by INTAKS NZ for the delivery of goods is an estimate only and INTAKS NZ does not guarantee delivery on that date, and there are no damages or other remedy for delivery after such date, and the customer does not have a right to cancel the order.
15.4. The customer will release, hold harmless and indemnify INTAKS NZ from and against all liabilities, claims, damages, losses, costs and expenses, howsoever occurring which may accrue against or be suffered by INTAKS NZ arising in any way from the use of the goods or services.
15.5. INTAKS NZ may from time to time provide advice and statements about goods. INTAKS NZ does not warrant or guarantee the accuracy or completeness of the advice or statements or the results obtained through the use of the goods. INTAKS NZ expressly disclaims liability for any damage to the customer from reliance on such advice or statements. The customer must make its own enquiries having regard to the specific circumstances. The customer acknowledges that any training provided by INTAKS NZ is only intended as general information about goods supplied by INTAKS and the use of those goods, and the training is not intended to be definitive guidance. Accordingly, INTAKS NZ’s liability in respect of any training or guidance provided is limited to the total amount of fees received by INTAKS NZ in respect of the training or advice in question.
15.6. The customer agrees not to give or make any undertaking, assertion, representation or warranty in relation to goods without INTAKS NZ’s prior approval in writing.
15.7. If the customer is a consumer under the Consumer Guarantees Act 1993 (“CGA”), nothing in these terms limits the customer’s rights under the CGA. If the customer acquires goods or services for business purposes, the provisions of the CGA will not apply and are expressly excluded.
15.8. Subject to clause 15.7 and any express warranty set out in this clause 15:
(a) All warranties of merchantability or fitness for a particular purpose and all other representations, statements, warranties or conditions whether statutory or made by any representative or agent of INTAKS NZ or otherwise, whether express or implied, are excluded to the extent permitted by law.
(b) INTAKS NZ’s liability under or arising from these terms, whether in contract, tort, equity or otherwise, is limited to the lower of: (i) the price actually paid by the customer for the specific goods or services for which the claim relates (and not the full order or shipment) or, in respect of hired goods, the equivalent of one month's rental for the specific hired goods for which the claim relates (defective hired goods will also be replaced with equivalent hire goods); (ii) the cost of repairing the goods or replacing the services; and (iii) the actual loss or damage suffered by the customer.
(c) INTAKS NZ accepts no liability for any damages or losses arising from any act, default or negligence on the part of the customer or its employees, subcontractors, agents or its customers.
(d) INTAKS NZ will not be liable for indirect, special, consequential or similar costs, losses or damages, including but not limited to loss of profit or revenues, or other financial or economic losses of any kind, and whether or not INTAKS NZ has been advised of the potential for such damages.
16. Personal or Credit Information and Credit Reporting
16.2. INTAKS NZ may disclose any information about the customer, including the customer’s personal information for any of the purposes listed in clause 16.1, to third parties who provide services to INTAKS NZ, to INTAKS Group companies, Government departments, law enforcement agencies, including the police, debt collection services or credit reporting agencies, liquidators, administrators or other persons appointed to administer the customer’s financial affairs, and agents for any of these persons. Some of the parties listed above may be located overseas. INTAKS NZ will only transfer the customer’s personal information to an overseas recipient who is obliged to protect the customer’s personal information with comparable safeguards to those contained in the Privacy Act 2020, or otherwise INTAKS NZ will obtain the customer’s express consent to transfer the personal information overseas.
16.4. The customer irrevocably authorises all persons, companies, credit reporting agencies and other entities to provide INTAKS NZ with such information as INTAKS NZ may at any time request about the customer (including where applicable, its principals and directors) in relation to any of the purposes listed in clause 16.1 and/or any directly related purposes, and the customer confirms that the customer is authorised to provide this approval to INTAKS NZ on behalf of the customer’s principals and directors.
17.1. In these terms:
(a) the following terms shall have the following meanings:
“customer” means the person or entity who purchases sale goods and/or hires hired goods from INTAKS NZ and, where applicable, includes the employees, contractors, agents and subcontractors engaged by the customer to purchase sale goods and/or hire hired goods from INTAKS NZ.
“goods" means the hired goods and/or the sale goods (as the context requires).
“GST” means goods and services tax under the Goods and Services Tax Act 1985.
“hired goods" means INTAKS NZ scaffolding and edge protection equipment hired by the customer from INTAKS NZ pursuant to these terms or other agreement between the customer and INTAKS NZ.
“INTAKS Group” means INTAKS NZ Limited, related and affiliated INTAKS companies, and licensees of any of the listed companies.
“INTAKS NZ” means INTAKS NZ Limited, NZBN 9429042391555 and its successors or permitted assigns.
“PPSA” means the Personal Property Securities Act 1999.
“sale goods” means INTAKS NZ scaffolding and edge protection equipment purchased by the customer from INTAKS NZ pursuant to these terms or other agreement between the customer and INTAKS NZ.
"working day" means a day on which banks are open for business in Tauranga, New Zealand, not being a Saturday, Sunday or public holiday.
“written notice” and “in writing” shall mean notice in writing, which may be by email, and shall be deemed to have been received when:
(i) delivered by hand, at the time of delivery; and
(ii) delivered by email, on the day on which the email is sent,
provided that any communication received or deemed received after 5pm or on a day which is not a working day will be deemed not to have been received until the next working day.
(b) clause headings are for reference only and do not affect interpretation.
(c) if the customer comprises more than one person, each person's liability will be joint and several.
(d) references to the singular shall Include the plural and vice versa.
(e) References to legislation include such legislation from time to time amended, re-enacted or substituted and any statutory instruments, regulations and orders issued under such legislation.
17.2. New Zealand law governs these terms and New Zealand Courts have non-exclusive Jurisdiction.
17.3. If any provision of these terms shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
17.4. The customer shall not be entitled to set off against or deduct from the price of the goods or the hire charges or the charges for services any sums owed or claimed to be owed to the customer by INTAKS NZ
17.5. The failure by INTAKS NZ to enforce any provision of these terms shall not be treated as a waiver of that provision, nor shall it affect INTAKS NZ's right to subsequently enforce that provision. No waiver shall be effective unless it is in writing.
17.6. The customer warrants that it is “in trade” within the meaning of the Consumer Guarantees Act 1993 and undertakes to use the goods and services solely for business and commercial purposes. Where the customer acquires, or holds themselves out as acquiring, the goods and/or services for business purposes, the Consumer Guarantees Act 1993 shall not apply.
17.7. The customer may not assign or subcontract any of its rights or obligations under these terms. INTAKS NZ may, without prior notice to the customer, assign its rights or novate its rights and obligations under these terms and any related contract to any third party, and the customer agrees to consent to any such assignment or novation.
17.8. The customer agrees to co-operate with INTAKS NZ in relation to any recalls or withdrawals from sale of goods for any reason with the objective being to optimise the customer’s and INTAKS NZ’s reputation and goodwill whilst ensuring public health and safety is maintained at all times. INTAKS NZ agrees to meet the customer’s reasonable direct costs associated with a recall if INTAKS NZ delivers a defective good.
17.9. These terms (including any attached schedules) together with any credit application and terms of sale, hire and trade agreement the payment, goods and services details and other terms contained in any invoice(s), sale or hire contract or order form or schedule constitute the entire agreement between the parties relating to the goods and services.