Credit Application & Terms of Trade

Terms of Trade

1. Definitions, Interpretation, and Application

Unless inconsistent with the context the following definitions apply:

• "Customer" includes the customer’s successors and personal representatives;
• "Delivery" or "delivery date" means the date determined under clause 4.1;
• "CPE" means Concrete Pumping Equipment NZ Limited and its successors and assigns;
• "PPSA" means the Personal Property Securities Act 1999;
• "Terms" means these Terms of Trade as amended or substituted by CPE from time to time;
• "Product" or "Products" includes everything made, done or supplied by CPE;
• "Working Day" has the meaning in Section 4 of the Property Law Act 2007.

References to legislation refer to that legislation as amended or substituted. Words importing the singular number include the plural and vice versa. Headings are inserted for convenience only and do not affect interpretation. These Terms apply to all Products supplied at the request of the Customer whether or not charged for. By requesting Products from CPE the Customer agrees that these Terms govern any other contract, variations, stipulations, instructions, or provisions. The person by whose instrumentality any order is placed or any delivery is received warrants (where not the Customer) that he or she is authorised to act on behalf of the Customer, and agrees to be jointly and severally with the Customer bound by these Terms and be liable for the performance of the Customer’s obligations.

2. Price, Payment, Charges, and Interest

• The Customer shall pay each of CPE’s invoices in full on receipt of invoice free from any deduction, counterclaim or set-off, legal, equitable or otherwise, unless agreed in writing by CPE.
• CPE may at any time before Delivery vary the price quoted for the purchase of any Products. Progress payments may be required at any time; the progress payment shall not be less than 25% of the contract sum and is payable within 7 days of an invoice for that amount being delivered, and is non-refundable.
• Expenses incurred for damage, freight, insurance, delivery, storage, and similar charges shall be added to the contract price.
• The Customer shall have no right to object to any invoice unless a written objection has been lodged with CPE within 5 Working Days from the date the invoice was issued.
• If the Customer owes CPE money, becomes insolvent, commits an act of bankruptcy, has an application for liquidation made, or has a receiver, liquidator, assignee, statutory manager, or similar person appointed, or may become unable to meet any obligations under these Terms, CPE may (without being liable for loss or damage) cancel or suspend work or delivery, retain possession of the Products, and/or sell, scrap, or otherwise dispose of the Products and apply the proceeds against amounts owing.
• Notwithstanding any direction by the Customer, CPE may appropriate any payment towards any or all Products or any other amount due to CPE.
• If any invoice remains unpaid at the end of the second month after the month of issue, interest at 24% per annum compounding monthly (both before and after judgment) will be charged on the unpaid amount from the due date until payment in full.
• An administration fee of the greater of $26 or 18% of the overdue amount, per month or part thereof compounding monthly (both before and after judgment), will be charged on each overdue invoice.
• All expenses, disbursements, debt collection, and legal costs (on a solicitor and client basis) incurred by CPE in the enforcement or attempted enforcement of any rights or collection of money due are payable by the Customer.

3. Quotations and Estimates

Every statement or indication of price given by CPE is an estimate only, in respect of which CPE has no liability, except where specifically described in writing as a quotation, signed by CPE and accepted by the Customer. All quotes contain an estimate as to freight and handling costs, which cannot be finalised until the order reaches CPE’s workshop; CPE will issue a final quote with any adjustment once the order is fully received. Unless otherwise specified, all prices exclude GST and are valid for 14 days only. CPE may at any time before Delivery withdraw or change any quotation. Any accepted quotation may be subject to adjustment and will not be finalised until the final calculation of all costs by CPE.

4. Delivery, Damage, and Returns

Delivery to the Customer occurs at the earliest of the dates when the Products are available to be uplifted or received by the Customer, given to a carrier, or taken to a location identified by the Customer, whether or not complete or commissioned. CPE has no responsibility or liability for any loss or damage arising from any delay, failure, or cancellation of Delivery. Any time agreed for Delivery is an estimate only and is not of the essence. CPE will not accept return of or credit for Products which are not in faultless and saleable condition unless CPE has given prior written consent. The Customer must give CPE notice within 7 Working Days of Delivery of any alleged defect, fault, or non-compliance; failing such notice, the Products are deemed accepted. CPE may, at its discretion, accept Products for credit but may charge a restocking fee plus inspection costs.

5. Warranty and Liability Exclusions

Subject to clauses 5.5–5.7 and 12.3, the Customer’s rights are limited to those conferred by law, and all other conditions, warranties, and remedies are excluded to the maximum extent permitted by law. CPE has no liability for consequential or indirect loss or damage. For Products manufactured or fabricated by CPE to written specifications provided by the Customer, CPE warrants for 10 Working Days from Delivery that the Products will substantially comply with the specifications and be free from faulty workmanship, subject to conditions including that the claim is made within the notice period, the price has been paid in full, and the Products have not been altered, misused, or repaired without CPE’s approval. The warranty covers only repair of faulty workmanship; all other costs (materials, freight, dismantling, removal, and refitting) are for the Customer’s account. CPE’s total liability to the Customer in respect of any claim is limited to the amount actually paid to CPE in the calendar year in which the claim arises.

6. Risk, Ownership, Title and Possession

Where the Customer orders Machinery, risk passes on payment of CPE’s invoice in full; delivery and/or collection is at the Customer’s risk. For Credit Account Customers, risk passes to the Customer upon delivery, while CPE retains title to the Products until paid in full. Until title passes, the Customer holds the Products as CPE’s fiduciary and bailee, must keep them insured for full replacement value noting CPE’s interest, must not alter or modify them, and must store them so they are readily identifiable as CPE’s Products. CPE’s representatives may enter the Customer’s premises at any time without notice to inspect, take possession of, and remove the Products.

7. Personal Property Securities Act 1999

The Customer agrees to do all things necessary to enable CPE to register a financing statement, financing change statement, or other notice in respect of a security interest under the PPSA, and shall reimburse CPE’s costs in obtaining, registering, maintaining, and enforcing that security interest. To the extent permitted by law, the Customer waives the right to receive a copy of any verification statement under section 148 of the PPSA, and waives any rights under sections 114(1)(a), 133, and 107(2) of the PPSA.

8. Intellectual Property

Unless expressly agreed in writing, all intellectual property in respect of any Product provided by CPE remains at all times the absolute property of CPE. Where the manufacturer of a Product is not CPE, all intellectual property remains the property of that manufacturer.

9. Privacy

The Customer acknowledges that the Privacy Act applies to individuals and not companies. The Customer authorises CPE to collect, retain, disclose, and otherwise use information collected in respect of providing goods or services, obtaining credit and other references, undertaking credit management, and marketing, in accordance with the Privacy Act 2020.

10. Assignment

CPE may from time to time licence, outsource, assign, novate, or subcontract all or any part of its rights and obligations under these Terms without the consent of the Customer. The Customer shall not assign any of its rights or obligations under these Terms without the prior written consent of CPE.

11. Waiver

Any variation or waiver of any clause in these Terms shall not be binding unless agreed and recorded in writing. A failure or delay in enforcing compliance with any clause of these Terms shall not constitute a waiver.

12. General

Where the Customer acquires Products for the purposes of a business, the provisions of the Consumer Guarantees Act 1993 are excluded to the extent permitted by law. The Customer is responsible for compliance with all relevant legislation regarding consents, easements, parking, safety, fencing, and inspections, and will indemnify CPE against any liability arising in respect of that work. Nothing in these Terms takes away any statutory right that cannot legally be excluded. These Terms constitute the entire agreement between the parties relating to their subject matter and supersede all prior representations, communications, negotiations, and understandings. The law of New Zealand governs these Terms and the Courts of New Zealand have jurisdiction. CPE may from time to time amend or substitute these Terms, and the amended Terms apply from the date notice is given.

13. Dispute Resolution

If a dispute arises between the parties, the parties will first endeavour in good faith to resolve the matter by friendly discussion. If the dispute is not resolved, either party may give the other written notice specifying the nature of the dispute. The parties will then use their best endeavours to resolve the dispute by mediation, agreeing on a mediator, failing agreement within 14 days, appointed by the President of the New Zealand Law Society on application of either party. If mediation is unsuccessful, the dispute shall be referred to arbitration in accordance with the Arbitration Act 1996.

Updated June 2023