1.1 All goods and products (“Goods”) supplied by Hi-Q Electronics Limited and its employees, contractors and agents (“Hi-Q”) to the customer (“Customer”) are sold subject to these terms and conditions of trade (“Terms”), which may be changed by Hi-Q in any manner and at any time. The Customer acknowledges that by purchasing any Goods from Hi-Q, the Customer has read, understood and accepted the Terms and agrees to be bound by the Terms.
2.1 The Customer may order Goods from Hi-Q by any manner that Hi-Q accepts.
2.2 Orders for Goods are subject to Hi-Q’s approval and acceptance. All orders are subject to availability of the Goods.
2.3 The Customer cannot cancel any order for Goods (whether fully or in part) unless Hi-Q has agreed to the cancellation in writing. The Customer cannot cancel any special indent order for Goods (being an order for Goods that Hi-Q does not keep readily available in stock and where Hi-Q has specifically ordered the Goods from the supplier on the Customer’s instruction).
2.4 Hi-Q is entitled to:
(a) Discontinue the manufacture or supply of any of the Goods;
(b) Add to or substitute Goods; and
(c) Make such alterations as Hi-Q thinks fit to the specifications, manufacture, design or packaging of the Goods.
Hi-Q will give Customers notice of any such change by updating Hi-Q’s website or catalogue.
3.1 The price payable for the Goods ordered shall be either
(a) Where Hi-Q has provided the Customer with access to Hi-Q’s catalogue, the price specified in Hi-Q’s current catalogue at the time the order is placed; or
(b) Where the Customer orders from Hi-Q’s website, the price specified on Hi Q’s website; or
(c) In all other cases, the price specified in Hi-Q’s quotation.
3.2 All prices for the Goods shall be in $NZD and shall be exclusive of GST (unless otherwise stated). Hi-Q may correct any clerical errors or omissions in its catalogue or website and in any quotation, correspondence or invoice.
3.3 Hi-Q reserves the right to change the prices of Goods listed in its catalogue by emailing notice of the change to the Customer.
3.4 Where a quotation is given by Hi-Q to the Customer:
(a) Subject to clause 3.5 of the Terms, the quotation will be valid for 30 days from the date of issue and thereafter will be deemed to be withdrawn
(b) No change to the quotation is permitted unless Hi-Q has agreed in writing to the change.
3.6 Hi-Q reserves the right to withdraw or vary any quotation at any time before the Customer accepts the quotation.
4. TERMS OF PAYMENT
4.1 Unless Hi-Q otherwise agrees in writing, the Customer must pay the full price for the Goods and any delivery costs prior to delivery of the Goods.
4.2 Subject to clause 4.3 (which applies to special indent orders), where the Customer holds a trade account with Hi-Q and Hi-Q has agreed in writing to supply Goods to the Customer prior to payment, the Customer must pay the full price for the Goods and any delivery costs by the 20th of the calendar month following the supply of the Goods. Hi-Q reserves the right at any time to require payment in full for the Goods prior to delivery or the right to withdraw credit.
4.3 Where the Customer holds a trade account with Hi-Q and Hi-Q has agreed in writing to supply Goods to the Customer prior to payment and the Customer makes a special indent order for Goods (being an order that for Goods that Hi-Q does not keep readily available in stock and where Hi-Q has specifically ordered the Goods from the supplier on the Customer’s instruction), the Customer must pay 20% of the full price for the Goods and any delivery costs prior to delivery of the Goods and must pay the balance by the 20th of the calendar month following the supply of the Goods. Hi-Q reserves the right at any time to require payment in full for the Goods prior to delivery or the right to withdraw credit.
4.4 Time for payment for the Goods is of the essence. The Customer must make all payments to Hi-Q with delay, counter-claim, abatement, deduction or set off.
4.5 Without prejudice to Hi-Q’s other rights and remedies, if any amounts due to Hi-Q are not paid by the due date for payment or the Customer breaches any other of these Terms, Hi-Q may:
(a) Where payment or part-payment is required prior to delivery, retain the Goods until full payment for the Goods has been received
(b) Suspend or terminate any trade account the Customer holds with Hi-Q and/or withdraw credit, at which time all amounts the Customer owes to Hi-Q will become due and payable
(c) Charge the Customer interest, payable on demand, on any overdue amounts at the rate of 12% per annum, calculated daily from the due date for payment until payment is received in full;
(d) Recover from the Customer all costs incurred by Hi-Q arising from any breach of these Terms including, without limitation, legal fees, service costs and costs of recovering unpaid amounts.
5. RISK AND DELIVERY
5.1 Risk passes to the Customer on delivery of goods.
5.2 Delivery shall be deemed complete when Hi-Q gives possession of the goods directly to the Customer, or possession of the goods is given to a carrier, courier, or other bailee for the purposes of transmission to the Customer.
5.3 The Customer is responsible for insuring all Goods from the time of delivery.
5.4 Where Hi-Q has accepted an order, Hi-Q will use its reasonable endeavours to arrange supply to the Customer of the Goods by the delivery date agreed in writing between Hi-Q and the Customer.
5.5 Hi-Q is not liable to the Customer for any failure to deliver, or for any delay in the delivery of, the Goods howsoever caused. Without limiting the foregoing, Hi-Q is not liable for failure to deliver, or for any delay in the delivery of, the Goods in the following circumstances;
(a) Where payment for Goods by the Customer has not been received by Hi-Q on the due date for payment (where payment prior to delivery is required); or
(b) Those circumstances described in clause 10 of these terms.
6. OWNERSHIP RESERVED
6.1 Hi-Q retains ownership of and the legal and equitable title in all Goods supplied or agreed to be supplied by Hi-Q until the Customer has paid the full price for the Goods and any delivery costs and all other amounts owing by the Customer to Hi-Q.
7. PERSONAL PROPERTY SECURITIES ACT 1999 (‘PPSA’)
7.1 The Customer grants to Hi-Q a purchase money security interest in the Goods and their proceeds as security for any amounts due and owing by the Customer to Hi-Q. The Goods subject to the security interest will be the Goods described in any
(a) Quotation or tender given by Hi-Q to the Customer
(b) Contract between Hi-Q and the Customer;
(c) Purchase order or any other order for Goods from the Customer; and/or
(d) Dispatch order, invoice, statement or remittance advice given by Hi-Q to the Customer.
7.2 At Hi-Q’s request, the Customer will promptly execute any documents and do anything else required by Hi-Q to ensure that any security interest created constitutes a perfected security interest over all Goods supplied by Hi-Q until all and any amounts owing by the Customer have been paid in full. This obligation extends to providing the information required by Hi-Q to enable Hi-Q to complete and register a financing statement or financing change statement. The Customer undertakes to give Hi-Q not less than 14 days’ prior written notice of any proposed change to the Customer’s name or details.
7.3 The Customer will not, without Hi-Q’s prior written consent, allow any person (including the Customer) to file a financing statement over any Goods supplied by Hi-Q to the Customer.
7.4 If the Customer sells the Goods prior to payment to Hi-Q, the Customer undertakes to pay the proceeds derived from the sale into a separate bank account for the benefit and as trustee for Hi-Q so that those proceeds remain identifiable in connection with that sale of the Goods.
7.5 The Customer waives its right to receive a copy of a verification statement in respect of any financing statement or financing change statement registered by Hi-Q. Sections 114(1)(a), 133 and 134 of the PPSA will not apply and the Customer waives its rights under sections 116, 120(2), 121, 125, 126, 127, 129 and 131 of the PPSA.
7.6 Any breach by the Customer of these Terms will constitute a default for the purposes of the PPSA. Without prejudice to Hi-Q’s other rights and remedies, the Customer irrevocably grants to Hi-Q the right and licence to enter the Customer’s premises, without notice and without any liability whatsoever to the Customer or any person or company claiming through the Customer, in order to repossess the Goods.
7.7 In this clause 7, the terms “security interest’”, “purchase money security interest”, “perfect”, “proceeds”, “financing statement” and “financing change statement” have the meanings given to them in the PPSA.
8. INSPECTION AND RETURNS POLICY
8.1 The Customer will inspect the Goods on delivery and will, within three days of the date of delivery, notify Hi-Q and the carrier of any alleged defect, shortage in quantity, damage or failure to comply with quotation or description.
8.2 The Customer shall afford Hi-Q an opportunity to inspect the Goods within a reasonable time of the Customer notifying Hi-Q and the carrier.
8.3 If the Customer does not notify Hi-Q and the carrier in writing within three days of the date of delivery, then the Customer is deemed to have accepted the Goods
8.4 Where Hi-Q has agreed in writing that the Customer is entitled to reject the Goods, Hi-Q will, at Hi- Q’s election, repair the Goods, replace the Goods with Goods of identical type, or refund the price the Customer has paid for the Goods (excluding delivery costs)
either at Hi-Q’s election, in the form of store credit or in cash. Hi-Q’s liability is limited to either, at Hi-Q’s election, the repair of the Goods, the replacement of the Goods or the price the Customer has paid for the Goods (excluding delivery costs) either, at Hi-Q’s election, in the form of store credit or in cash.
8.5 Returns of Goods will only be accepted by Hi-Q if
(a) The Customer has complied with the provisions of clause 8.1 and/or Hi-Q has agreed in writing to the return of the Goods;
(b) The Goods are returned at the Customer’s cost within 14 days of the date of delivery;
(c) The Goods are returned with the original invoice/packing slip or the number and date of the invoice or packing slip are enclosed; and
(d) The Goods are returned in the condition in which they were delivered and in original packaging, complete with detachable accessories and instruction manuals.
8.6 Hi-Q will not accept returns of Goods where Hi-Q has arranged for the Goods to be manufactured and supplied to a Customer’s specifications.
8.7 Where Hi-Q, at its sole discretion, accepts returns of Goods that are surplus to the Customer’s requirement or that the Customer has ordered in error, the Customer agrees that Hi-Q has the right to deduct from any refund or store credit given to the Customer 25% of the original purchase price to cover Hi-Q’s costs of restocking.
9. EXCLUSIONS OF LIABILITY
9.1 Where the Goods have the benefit of a warranty from a third party manufacturer, Hi-Q will, to the extent permitted by the third part manufacturer, pass the benefit of the warranty to the Customer but Hi-Q will not itself be liable under such warranty.
9.2 Where the Customer is in trade and acquires the Goods in trade, then Hi-Q and the Customer agree to contract out of the provisions of the Consumer Guarantees Act 1993 and accordingly the provisions of the Consumer Guarantees Act 1993 do not apply. Except to the extent permitted by law, nothing in the Terms is intended to have the effect of contracting out of provisions of the Consumer Guarantees Act 1993 in respect of a Customer that is a consumer (as that term is defined in the Consumer Guarantees Act 1993) where that Customer is not in trade and these Terms are amended to the extent necessary to give effect to that intention. In this clause 9.2, “in trade” has the meaning given to it in the Consumer Guarantees Act 1993.
9.3 Except as provided in the Consumer Guarantees Act 1993 (if applicable) and by any third party manufacturer’s written warranty (if any), Hi-Q makes no representation, condition, warranty or promise, express or implied, in respect of Goods supplied to the Customer.
9.5 Except as provided in the Consumer Guarantees Act 1993 (if applicable) and in clause 8 of these Terms, Hi-Q shall not be liable for any loss of any kind whatsoever suffered by the Customer by reason of any breach of any of Hi-Q’s obligations regarding the supply of Goods or in tort (including negligence) or otherwise including, without limitation, loss of use of any production line or any part thereof or for loss of production, loss of profit, loss of any contract, failure to realise expected profits or savings or for any indirect, special or consequential loss or damage that may be suffered by the Customer, nor shall Hi-Q be liable for any loss, damage or injury caused to the Customer’s employees, agents, contractors, customers or other persons and the Customer will indemnify Hi-Q against any claim by such persons.
9.5 Where the Customer purchases goods for a particular purpose, it is the Customer’s sole responsibility to ensure that the goods will be suitable for the Customer’s purpose, and Hi-Q shall have no liability whatsoever in the event that the goods are not fit for the Hi-Q’s purpose, notwithstanding any statements made to the Customer by Hi-Q or its officers or employees. The Customer and Hi-Q agree that clause 16 of the Sale of Goods Act 1908 does not apply.
10. CUSTOMER’S LIABILITY AND INDEMNITY
10.1 The Customer warrants that it has the full authority to order the Goods and the Customer shall be bound by all such orders. Where the Customer has ordered Goods, the Customer indemnifies Hi-Q against any claim by any third party following delivery of the Goods.
10.2 The Customer indemnifies Hi-Q from and against any and all damages, claims, losses, demands, liabilities (including vicarious liability), injuries, suits, actions, judgments, costs and expenses of any kind whatsoever (including, without limitation, legal fees, service costs and costs of recovering unpaid amounts) arising out of or in any way connected with the Customer’s breach of the Terms.
11. FORCE MAJEURE
11.1 Hi-Q shall not be liable for any breach of these Terms in the event of force majeure, being any failure, delay or breach caused by strike, industrial dispute, natural disaster, shortage or unavailability of stocks of Goods or raw materials, failure of any of Hi-Q’s suppliers to supply Goods, delay by any of Hi-Q’s suppliers in supplying Goods, delay in transit, import restrictions, legislative, governmental or other prohibition or restriction, fire, flood, hostilities, commotions or any other causes whatsoever (whether similar to the foregoing or not) beyond Hi-Q’s reasonable control.
12. PRIVACY ACT
13. INTELLECTUAL PROPERTY
13.1 Any sale of the Goods will not operate so as to transfer or vest in the Customer any trade mark, patent, copyright or other intellectual property. All intellectual property rights in respect of the Goods remain Hi-Q’s or the applicable manufacturer’s property and the Customer may not use, reverse engineer, interfere with or alter the intellectual property in any way
13.2 All intellectual property on Hi-Q’s website is owned by Hi-Q and/or its content suppliers. No part of Hi-Q’s website may be distributed or copied for any commercial purpose, nor incorporated in any other work or publication whether in hard copy, electronic or any other form. For the purposes of this clause 13.2 “intellectual property” includes the design of, and all content appearing on this website, trade marks (including logos), domain names, copyright, rights in computer software, databases and lists, confidential information, know-how and trade secrets and manuals, whether registered or unregistered.
15.1 Either party may terminate these Terms with immediate effect if the other party
(a) Is in breach of these Terms; and/or
(b) Becomes insolvent, fails to pay its debts as they fall due, ceases to carry on business, a resolution is passed or proceedings have commenced to have the party wound up, or a receiver, statutory manager, liquidator or any other administrator is appointed in respect of that party or any of its assets.
15.2 Without prejudice to Hi-Q’s other rights and remedies, in the event of termination of these Terms pursuant to clause 15.1, the Customer shall immediately pay Hi-Q all amounts due and owing by the Customer to Hi-Q.
16.1 These Terms shall be governed by and construed in accordance with the laws of New Zealand and the parties irrevocably submit to the exclusive jurisdiction of courts of New Zealand.
16.2 The Customer agrees to, at all times, comply fully with all relevant laws, ordinances, rules, regulations and orders of all relevant regulatory bodies in the country it resides in.
16.3 Hi-Q reserves the right to amend these Terms in any manner and at any time. Hi-Q will notify the Customer of any amendments to the Terms either in writing or by uploading the amended Terms to Hi-Q’s website. By continuing to use Hi-Q’s website or order Goods from Hi-Q after any such amendment, the Customer is deemed to have agreed to the amended Terms.
16.4 These Terms set out the entire agreement and understanding between the parties and merges all prior discussions between them. No party will be bound by any conditions, warranties or representations except as expressly provided in these Terms.
16.5 Any waiver, delay or failure to execute any rights by Hi-Q shall not be deemed a waiver of that right or any further or other right of Hi-Q. No waiver is effective unless it is in writing.
16.6 If any provision of these Terms is declared or adjudged to be invalid, void or unenforceable, such provision shall be severable and deemed deleted from these Terms and shall not affect the validity, existence, legality or enforceability of the remaining provisions.
16.7 Notices in writing must be addressed to the other party and delivered by hand or by receipted delivery system.
16.8 No party may assign its rights and obligations under Terms without the other party’s consent
14. PERSONAL GUARANTEE OF COMPANY DIRECTORS OR TRUSTEES
14.1 If the Customer is a company or trust, the director(s) or trustee(s) signing this contract, in consideration of Hi-Q agreeing to supply Goods and (if applicable) grant credit to the Customer, also sign this contract in their personal capacity and jointly and severally personally undertake as principal debtors to Hi-
Q the payment of any and all monies now or hereafter owed by the Customer to Hi-Q and indemnify Hi-Q against non‑payment by the Customer. Any personal liability of a signatory hereto shall not exclude the Customer in any way whatsoever from the liabilities and obligations contained in this contract.