means the terms and conditions contained herein, together with any quotation,
order, invoice or other document or amendments expressed to be supplemental to
means small files which are stored on a user’s computer. They are
designed to hold a modest amount of data (including Personal Information) specific
to a particular client and website, and can be accessed either by the web
server or the client’s computer. If the Customer does not wish to allow Cookies
to operate in the background when using SWIA’s website, then the Customer shall
have the right to enable / disable the Cookies first by selecting the option to
enable / disable provided on the website, prior to making enquiries via the
means the person/s, entities or any person acting on behalf of and with the
authority of the Customer requesting SWIA to provide the Services as specified
in any proposal, quotation, order, invoice or other documentation, and:
(a) if there is more than one Customer, is a reference to each Customer jointly and
(b) if the Customer is a partnership, it shall bind each partner jointly and severally;
(c) if the Customer is a part of a Trust, shall be bound in their capacity as a trustee;
(d) includes the Customer’s executors, administrators, successors and permitted assigns.
means all Goods (including, but not limited to, any parts and/or consumables
used during the course of the Services) or Services (including, but not limited
to,the manufacture, inspection, installation and servicing of weighing machines
etc) supplied by SWIA to the Customer at the Customer’s request from time to time (where the context
so permits the terms ‘Goods’ or ‘Services’ shall be interchangeable for the other).
means the Price payable (plus any Goods and Services Tax (“GST”) where
applicable) for the Goods as agreed between SWIA and the Customer in accordance
with clause 7 below.
1.6 “SWIA” means Sensortronic
Scale Industries (NZ) Limited, Sensortronic Scale Enterprises Limited,
Sensortronic Scales (SI) Limited & Sensortronic Calibrations Limited T/A
Sensortronic Weighing & Inspection Australasia, its successors and assigns.
2.1 The parties
acknowledge and agree that:
(a) they have read and understood the terms and conditions contained in this Contract; and
(b) the partiesare taken to have exclusively accepted and are immediately bound, jointly and
severally, by these terms and conditions if the Customer places an order for or
accepts Delivery of the Goods/Services.
2.2 In the event of any inconsistency between the terms and conditions of this Contract
and any other prior document or schedule that the parties have entered into,
the terms of this Contract shall prevail.
2.3 Any amendment to the terms and conditions contained in this Contract may only be
amended in writing by the consent of both parties.
2.4 The Customer acknowledges and accepts that the supply of Goods:
(a) on credit shall not take effect until the Customer has completed a credit
application with SWIA and it has been approved with a credit limit established
for the account. In the event that the supply of Goods
requested exceeds the Customer’s credit limit and/or the account exceeds the
payment terms, SWIA reserves the right to refuse Delivery; and
(b) for accepted orders may be subject to availability and if, for any reason, Goods
are not or cease to be available, SWIA reserves the right to substitute
comparable Goods (or components of the Goods) and vary the Price as per clause 8.
In all such cases SWIA will notify the Customer in advance of any such
substitution, and also reserves the right to place the Customer’s order and/or
Services on hold until such time as SWIA and the Customer agree to such
2.5 Any advice, recommendation, information, assistance or service provided by SWIA in
relation to the Goods or Services supplied is given in good faith to the Customer, or the Customer’s agent and is
based on SWIA’s own knowledge and experience and shall be accepted without
liability on the part of SWIA. Where such advice or recommendations are
not acted upon then SWIA shall require the Customer or their agent to authorise
commencement of the Services in writing. SWIA shall not be liable in any way
whatsoever for any damages or losses that occur after any subsequent
commencement of the Services.
2.6 In the event that the Customer requests SWIA to provide the Services urgently, that may require SWIA’s
staff to work outside normal business hours (including but not limited to
working, through lunch breaks, weekends and/or Public Holidays) then SWIA
reserves the right to charge the Customer additional labour costs (penalty
rates will apply at time and a half normal rates), unless otherwise agreed
between SWIA and the Customer.
2.7 Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section
226 of the Contract and Commercial Law Act 2017 or any other applicable
provisions of that Act or any Regulations referred to in that Act.
3. Authorised Representatives
3.1 The Customer acknowledges
that SWIA shall (for the duration of the Services) liaise directly with one (1)
authorised representative, and that once introduced as such to SWIA, that
person shall have the full authority of the Customer to order any Goods,
Services and/or to request any variation thereto on the Customer’s behalf. The Customer accepts
that they will be solely liable to SWIA for all additional costs incurred by SWIA
(including SWIA’s profit margin) in providing any Goods, Services or
variation/s requested thereto by the Customer’s duly authorised representative.
4. Errors and Omissions
Customer acknowledges and accepts that SWIA shall, without prejudice, accept no
liability in respect of any alleged or actual error(s) and/or omission(s):
(a) resulting from an inadvertent mistake made by SWIA
in the formation and/or administration of this Contract; and/or
(b) contained in/omitted from any literature
(hard copy and/or electronic) supplied by SWIA in respect of the Services.
4.2 If such an error and/or omission occurs in accordance with clause 4.1,
and is not attributable to the negligence and/or wilful misconduct of SWIA; the Customer:
(a) shall not be entitled to treat this Contract as repudiated nor render it invalid; but
(b) shall not be responsible for any additional costs incurred by SWIA arising from the
error or omission.
5. Change in Control
5.1 The Customer shall give SWIA not less than fourteen (14) days
prior written notice of any proposed change of ownership of the Customer and/or
any other change in the Customer’s details (including but not limited to,
changes in the Customer’s name, address and contact phone or fax number/s, change
of trustees or business practice). The Customer shall be liable for any loss
incurred by SWIA as a result of the Customer’s failure to comply with this
6. Credit Card Information
6.1 SWIA will:
(a) keep the Customer’s personal details, including credit
card details for only as long as is deemed necessary by SWIA;
(b) not disclose the Customer’s credit card details to any
third party; and
(c) not unnecessarily disclose any of the Customer’s
personal information, except is accordance with the Privacy Act (clause 24) or where required by law.
6.2 The Customer expressly agrees that, if pursuant to
this Contract, there are any unpaid charges or other amounts due and
outstanding by the Customer, SWIA is entitled to immediately charge the
Customer’s nominated credit card for these amounts, and is irrevocably
authorised to complete any documentation and take any action to recover from
the credit card issuer any and all amounts which may be due by the Customer
pursuant to the terms of this Contract.
7. Price and Payment
7.1 At SWIA’s sole discretion the Price shall be
(a) as indicated on any invoice provided by SWIA to the Customer; or
(b) SWIA’s quoted Price (subject to clause 8)
which will be valid for the period stated in the quotation or otherwise for a
period of thirty (30) days.
7.2 At SWIA’s sole discretion a reasonable deposit may
7.3 Time for payment for the Goods being of the
essence, the Price will be payable by the Customer on the date/s determined by SWIA,
which may be:
(a) on or before Delivery of the Goods;
(b) on completion of the Services;
(c) by way of instalments/progress payments in accordance with SWIA’s payment schedule;
(d) for certain approved Customers, due twenty (20) days following the end of the month
in which a statement is posted to the Customer’s address or address for
(e) the date specified on any invoice or other form as being the date for payment; or
(f) failing any notice to the contrary, the date which is seven (7) days following the date
of any invoice given to the Customer by SWIA.
7.4 Payment may be made by electronic/on-line banking, credit
card (a surcharge per transaction may apply), or by any other method as agreed
to between the Customer and SWIA.
7.5 SWIA may in its discretion allocate any payment received from the Customer towards
any invoice that SWIA determines and may do so at the time of receipt or at any
time afterwards. On any default by the Customer SWIA may re-allocate any
payments previously received and allocated. In the absence of any payment
allocation by SWIA, payment will be deemed to be allocated in such manner as
preserves the maximum value of SWIA’s Purchase Money Security Interest (as
defined in the PPSA) in the Goods.
7.6 The Customer shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed
to be owed to the Customer by SWIA nor to withhold payment of any invoice
because part of that invoice is in dispute.
7.7 Unless otherwise stated the Price does not include
GST. In addition to the Price, the Customer must pay to SWIA an amount equal to
any GST SWIA must pay for any supply by SWIA under this or any other contract
for the sale of the Goods. The Customer must pay GST, without deduction or set
off of any other amounts, at the same time and on the same basis as the Customer
pays the Price. In addition, the Customer must pay any other taxes and duties
that may be applicable in addition to the Price except where they are expressly
included in the Price.
8. Additional Charges
8.1 SWIA reserves the right to change the Price:
(a) if a variation to the Services which are to be provided is requested; or
(b) where additional Services are required due to the discovery of hidden or
unidentifiable difficulties (including, but not limited to, further faults
which are found upon disassembly and/or further inspection or testing) which
are only discovered upon commencement of the Services; or
(c) in the event of increases to SWIA in the cost of labour or Goods, or fluctuations in
currency exchange rates, which are beyond SWIA’s control.
8.2 Variations will be charged for on the basis of SWIA’s
quotation, and will be detailed in writing, and shown as variations on SWIA’s
invoice. The Customer shall be required to respond to any variation submitted
by SWIA within ten (10) working days. Failure to do so will entitle SWIA to add
the cost of the variation to the Price. Payment for all variations must be made
in full at the time of their completion.
8.3 Where SWIA is requested to store the Customer’s equipment,
or where the equipment are not collected within twenty-four (24) hours of
advice to the Customer that they are ready for collection, then SWIA (at its
sole discretion) may charge a reasonable fee for storage.
8.4 If SWIA has been requested by the Customer to
diagnose a fault that requires disassembly and/or testing, all costs involved
will be charged to the Customer irrespective of whether or not the repair goes
8.5 The Customer acknowledges and accepts that any fixed term maintenance contracts will remain fixed for an initial period of
twelve (12) months from the date of this Contract and will then be subject to
revision on the basis of the movement in the Consumer Price Index (CPI).
9. Provision of the Services
9.1 Where SWIA is installing the Goods and subject to
clause 9.2 it is SWIA responsibility to ensure that the Services start as soon as it is
9.2 The Services commencement date will be put back and
the completion date extended by whatever time is reasonable in the event that SWIA
claims an extension of time (by giving the Customer written notice) where
completion is delayed by an event beyond SWIA’s control, including, but not
limited to, any event as per clause 27.9 or any failure by the Customer to:
(a) have the site ready for the Services;
(b) ensure that the foundation/structure where the Goods are to be installed is secure; or
(c) notify SWIA that the site is ready.
9.3 Further to clause 9.2 the
Customer acknowledges and accepts that if there is a delay in installation SWIA
reserves the right to charge for any additional costs involved should the
installation be delayed beyond three (3) months from the date of Delivery.
9.4 Delivery (“Delivery”)
of the Goods is taken to occur at the time that SWIA (or SWIA’s nominated
carrier) delivers the Goods to the Customer’s nominated address even if the Customer
is not present at the address.
9.5 The cost of Delivery is either included in the
Price or is in addition to the Price as agreed between the parties.
9.6 Any time specified by SWIA for Delivery of the
Goods is an estimate only. The Customer must take Delivery by receipt or
collection of the Goods whenever they are tendered for Delivery. SWIA will not
be liable for any loss or damage incurred by the Customer as a result of Delivery
being late. In the event that the Customer is unable to take Delivery of the
Goods as arranged then SWIA shall be entitled to charge a reasonable fee for
redelivery and/or storage.
10.1 Risk of damage to or loss of the Goods passes to the Customer on Delivery and the Customer
must insure the Goods on or before Delivery.
10.2 If any of the Goods are damaged or destroyed following Delivery but prior to ownership
passing to the Customer, SWIA is entitled to receive all insurance proceeds
payable for the Goods. The production of these terms and conditions by SWIA is
sufficient evidence of SWIA’s rights to receive the insurance proceeds without
the need for any person dealing with SWIA to make further enquiries.
10.3 If the Customer requests SWIA to leave Goods outside SWIA’s premises for collection or
to deliver the Goods to an unattended location then such Goods shall be left at
the Customer’s sole risk.
10.4 SWIA shall be entitled to rely on the accuracy of any plans, specifications and other information
provided by the Customer. The Customer acknowledges and agrees that in the
event that any of this information provided by the Customer is inaccurate, SWIA
accepts no responsibility for any loss, damages, or costs however resulting
from these inaccurate plans, specifications or other information.
10.5 The Customer acknowledges and accepts that:
(a) all literature, samples, specifications, dimensions and weights submitted with this
quotation are approximate only and the data and descriptions contained in
catalogues and other advertising material while being as accurate as possible
may not necessarily be identical with the Goods and Services SWIA supplies and
that SWIA reserves the right to supply products that have minor modifications
in specifications as SWIA sees fit;
(b) the descriptions, illustrations and performances contained in catalogues, other
advertising material and price lists do not form part of the Contract of sale
of the Goods unless otherwise agreed;
(c) where SWIA has performed temporary repairs on the Customer’s equipment that SWIA:
(i) offers no guarantee against the reoccurrence of the initial fault, or any further
damage caused; and
(ii) will immediately advise the Customer of the fault and shall provide the Customer
with an estimate for the full repair required.
(d) SWIA is only responsible for Goods that are replaced by SWIA and does not at any
stage accept any liability in respect of previous services and/or goods
supplied by any other third party that subsequently fail and found to be the
source of the failure, the Customer agrees to indemnify SWIA against any loss
or damage to the Goods, or caused by the Goods, or any part thereof howsoever
(e) Goods supplied may:
(i) fade or change colour
(ii) mark or stain if exposed
to certain substances; and
(iii) be damaged or disfigured by impact or scratching.
10.6 SWIA accepts no responsibility for any damage or performance related problems with any Goods
where they have not been used and/or maintained in accordance with SWIA’s
and/or the manufacturers’ recommendations.
10.7 The Customer acknowledges and agrees that:
(a) auxiliary and on-site
wiring is not included in the Price; and
(b) where necessary it shall
be the Customer’s responsibility for:
protecting and correcting all inter-connecting cables; and
all cabling and wiring where not otherwise indicated in accordance with
instructions, drawings and wiring diagrams supplied by SWIA.
10.8 SWIA’s Goods are built
with “state of the art” protection from mains borne interference. However, as
the Goods have a very high precision specification, certain design parameters have
to be considered. Therefore it is the Customer’s responsibility to ensure that:
(a) the electrical environment surrounding the Goods are
is not subject to excessive interference in the form of electromagnetic
radiation or magnetic fields; and
(b) adequate screening is placed and/or secured around
any “noisy” electrical equipment or to moving equipment likely to cause
interference with precious equipment electronics and interfaces.
10.9 SWIA accept no liability
whatsoever for any problems or damage caused by or arising from excessive
electromagnetic, magnetic or static interference where the Customer fails to
adhere to clauses 10.8(a) and 10.8(b).
10.10 The Customer further acknowledges and accepts that:
(a) to facilitate the required steady power state situation, the Customer’s main power supply must be
within 230 VAC +/- 10% and the frequency within 50HZ +/- 2%;
(b) the mains power supply and the Customer’s electrical connections into the Goods must be free of
short-term transients and needs to be electrically isolated and “clean” from
both voltage and frequency variations; and
(c) the value of the 230 volt standard power mains supply may be altered to other voltages if agreed by SWIA.
10.11 SWIA accepts no liability whatsoever for any problems or damage caused by or arising from unclean power
supply which does not fall within the supply requirements stated above.
Modem data transfer
10.12 SWIA are unable to
guarantee the reliability of data transfer file modem due to factors beyond SWIA’s
control and in particular the incompatibility of most PABX systems with modem
connections and the design of the telephone network. Therefore, to reduce possible
communication problems SWIA recommends that the Customer ensures that:
(a) the installation of a
direct ISDN line and dial dedicated line to the modem
are free of any PABX systems and/or party lines; and
(b) the Customer checks with
their line supplier that the line is suitable for modem transfer of data.
10.13 The Customer acknowledges
and accepts that:
(a) many modern weighing machines include one or more strain gauge load cells as part of their mechanism;
(b) SWIA cannot be responsible for the failure of load cells due to shock or impact loading or due
to the application of a load exceeding the normal strength of the machine; and
(c) SWIA will not be responsible or liable for any damages to the Goods as a result of:
(i) the load cells failing
due to electric welding;
(ii) the Customer’s use of any
part of the weighbridge or mechanical structure, framing for clamping;
(iii) the routing of single or three (3) phase connectors; or
(iv) the close proximity of high capacity transformers or
generators or any electrical equipment capable of producing magnetic flux.
10.14 In the event that the Customer requests SWIA to rectify any faults as stated in clause 10.13(c), the Customer agrees
that any additional costs incurred by SWIA will be invoiced as an extra.
11. Testing Machine Calibration
11.1 Testing machines are calibrated at SWIA’s premises to the required standard class and a test
certificate covering this calibration will be supplied with the machine.
11.2 The machines can be recalibrated by SWIA’s technicians after installation and an endorsed test
certificate issued. In the event that the Customer requests that SWIA
recalibrates the machine/s, the Customer acknowledges and accepts that there is
an extra charge for this additional calibration which shall be invoiced as an
12. Customer Responsibility
12.1 The Customer shall ensure that SWIA has clear and free access to the site at all times to enable them to
undertake the Services. SWIA shall not be liable for any loss or damage to the
site (including, without limitation, damage to pathways, driveways and
concreted or paved or grassed areas), unless due to the negligence of SWIA.
12.2 Where SWIA is installing the Goods:
(a) that does not require any foundations and/or supporting structures, the Customer acknowledges
and accepts that the quoted Price is for the Services to be completed during
normal business hours and any additional overtime worked shall be oncharged to
the Customer as per SWIA’s overtime rate unless otherwise agreed; and
(b) the Customer warrants that any foundations/structures to which the Goods are to be affixed are able
to withstand the installation of the Goods and are of suitable capacity to
handle the Goods once installed. If, for any reason SWIA reasonably forms the
opinion that the Foundations/structures is not safe for the installation of
Goods to proceed then SWIA shall be entitled to delay installation of the Goods
until SWIA is satisfied that it is safe for the installation to proceed.
Any additional bearing area found necessary by SWIA
in the foundation/structure at the site shall be for the Customer’s cost.
12.3 It is the Customer’s sole responsibility:
(a) for the preparation of the foundation or supporting structure onto which the Goods will be installed;
(b) to provide the necessary equipment, staging, lifting tackle, amenities and unskilled labour required to
offload the Goods at the installation site;
(c) to arrange for the carriage, handling and the hire of test weights; and
(d) to ensure that any Goods not certified and stamped on SWIA’s premises must after installation and before
being used for trade or other purposes, be verified and stamped ready for use
by the local trade and measurement inspector or accredited person. SWIA may,
upon the Customer’s request, arrange for the Goods to be verified. The Customer
acknowledges and accepts that any statutory charges and the cost for the hire
and carriage of any necessary test weights will be at the Customer’s cost.
12.4 Where SWIA requires that Goods, equipment, tools etc. required for the Services be stored at the site, the Customer
shall supply SWIA a safe area for storage and shall take all reasonable efforts
to protect all items from destruction, theft or damage. In the event that any
of the stored items are destroyed, stolen or damaged, then the cost of repair
or replacement shall be the Customer’s responsibility.
13.1 SWIA and the Customer agree that ownership of the Goods shall not pass until:
(a) the Customer has paid SWIA all amounts owing to SWIA; and
(b) the Customer has met all of its other obligations to SWIA.
13.2 Receipt by SWIA 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.
13.3 It is further agreed that until ownership of the Goods passes to the Customer in
accordance with clause 13.1:
(a) the Customer is only a bailee of the Goods and must return the Goods to SWIA on request;
(b) the Customer holds the benefit of the Customer’s insurance of the Goods on trust for SWIA
and must pay to SWIA the proceeds of any insurance in the event of the Goods
being lost, damaged or destroyed;
(c) the Customer must not sell, dispose, or otherwise part with possession of the Goods other
than in the ordinary course of business and for market value. If the Customer
sells, disposes or parts with possession of the Goods then the Customer must
hold the proceeds of any such act on trust for SWIA and must pay or deliver the
proceeds to SWIA on demand;
(d) the Customer should not convert or process the Goods or intermix them with other goods but
if the Customer does so then the Customer holds the resulting product on trust
for the benefit of SWIA and must sell, dispose of or return the resulting
product to SWIA as it so directs;
(e) the Customer irrevocably authorises SWIA to enter any premises where SWIA believes the Goods
are kept and recover possession of the Goods;
(f) SWIA may recover possession of any Goods in transit whether or not Delivery has
(g) the Customer shall not charge or grant an encumbrance over the Goods nor grant nor otherwise
give away any interest in the Goods while they remain the property of SWIA; and
(h) SWIA may commence proceedings to recover the Price of the Goods sold notwithstanding
that ownership of the Goods has not passed to the Customer.
14. Personal Property Securities Act 1999 (“PPSA”)
14.1 Upon assenting to these terms and conditions in writing the Customer acknowledges
and agrees that:
(a) these terms and conditions constitute a security
agreement for the purposes of the PPSA; and
(b) a security interest is taken in all Goods that have
previously been supplied and that will be supplied in the future by SWIA to the
Customer, and the proceeds from such Goods as listed by SWIA to the Customer in
invoices rendered from time to time.
14.2 The Customer undertakes to:
(a) sign any further documents and/or provide any
further information (such information to be complete, accurate and up-to-date
in all respects) which SWIA may reasonably require to register a financing
statement or financing change statement on the Personal Property Securities
(b) indemnify, and upon demand reimburse, SWIA for all
expenses incurred in registering a financing statement or financing change
statement on the Personal Property Securities Register or releasing any Goods
(c) not register, or permit to be registered, a
financing statement or a financing change statement in relation to the Goods or
the proceeds of such Goods in favour of a third party without the prior written
consent of SWIA; and
(d) immediately advise SWIA 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.
14.3 Unless otherwise agreed to in writing by SWIA, the Customer waives its right to
receive a verification statement in accordance with section 148 of the PPSA.
14.4 The Customer shall unconditionally ratify any actions taken by SWIA under clauses 14.1 to 14.3.
14.5 Subject to any express provisions to the contrary (including those contained in this
clause 14), nothing in these terms and conditions is
intended to have the effect of contracting out of any of the provisions of the
15. Security and Charge
15.1 In consideration of SWIA agreeing to supply the Goods, the Customer charges all of its rights, title and interest (whether
joint or several) in any land, realty or other assets capable of being charged,
owned by the Customer either now or in the future, and the Customer grants a
security interest in all of its present and after-acquired property, to secure
the performance by the Customer of its obligations under these terms and
conditions (including, but not limited to, the payment of any money). The terms
of the charge and security interest are the terms of Memorandum
2018/4344 registered pursuant to s.209 of the Land Transfer Act 2017.
15.2 The Customer indemnifies SWIA from and against all SWIA’s costs and disbursements including legal costs on a solicitor and own client
basis incurred in exercising SWIA’s rights under this clause.
15.3 The Customer irrevocably appoints SWIA and each director of SWIA as the Customer’s true and
lawful attorney/s to perform all necessary acts to give effect to the
provisions of this clause 15 including, but not limited to, signing any
document on the Customer’s behalf.
16. Defects and Returns
16.1 The Customer shall inspect the Goods on Delivery or Services on completion and shall within
seven (7) days of Delivery (time being of the essence) notify SWIA of any
alleged defect, shortage in quantity, damage or failure to comply with the description
or quote. The Customer shall afford SWIA an opportunity to inspect the Goods/Services
within a reasonable time following Delivery if the Customer believes the Goods/Services
are defective in any way. If the Customer fails to comply with these provisions
the Goods/Services shall be presumed to be free from any defect or damage. For
defective Goods/Services, which SWIA has agreed in writing that the Customer is
entitled to reject, SWIA’s liability is limited to either (at SWIA’s
discretion) replacing the Goods/Services or repairing the Goods/Services.
16.2 Goods will not be accepted for return other than in accordance with 16.1 above.
16.3 Subject to clause 16.1, non-stocklist items or Goods made to the Customer’s specifications are not
acceptable for credit or return.
17.1 For Goods outsourced and Goods not manufactured by SWIA, the warranty shall be the
current warranty provided by the manufacturer of the Goods. SWIA shall not be bound by nor be responsible for
any term, condition, representation or warranty other than that which is given
by the manufacturer of the Goods.
18. General Lien
18.1 The Customer acknowledges and agrees that:
(a) SWIA may claim a general lien over any of the Customer’s Goods or property in SWIA’s
possession for any money outstanding under this Contract and any other Contract
to which the Customer and SWIA are parties. A lien is the right to take another’s property if an
obligation is not discharged.
(b) if the lien is not satisfied within seven (7) days of the due date, SWIA may, after
giving notice of the lien either:
(i) remove the Goods and property in SWIA’s possession and store it as SWIA thinks
appropriate at the Customer’s risk and expense; and
(ii) sell the Goods and property or any part of it as SWIA thinks appropriate and use the
sale proceeds towards the discharge of the lien and costs of the sale, without
being liable to any person for any damage caused.
19. Consumer Guarantees Act 1993 and the Fair Trading Act 1986
19.1 If the Customer is acquiring Goods for the purposes of a trade or business, the Customer
acknowledges that the provisions of the Consumer Guarantees Act 1993 (“CGA”)
do not apply to the supply of Goods by SWIA to the Customer.
19.2 SWIA agrees to abide by the provisions of the Fair Trading Act 1986 (“FTA”).
20. Compliance with Laws
20.1 SWIA shall comply with the
provisions of all statutes, regulations and bylaws of government, local and
other public authorities that may be applicable to the Goods and/or Services,
including any WorkSafe health and safety laws relating or any other relevant
safety standards or legislation pertaining to the Services.
21. Confidentiality/Intellectual Property
21.1 Both the Customer and SWIA agree to treat all information and/or reports communicated
to it by the other confidential and agree not to divulge them to any third
party, without the other party’s written consent. The parties will not copy any
such information supplied, and will either return it or destroy it (together
with any copies thereof) on request of the other party.
21.2 Exceptions to clause 21.1 will be disclosures to legal advisers, disclosures required by law, and disclosures
necessary for the proper performance of the Services.
21.3 Where SWIA has designed, drawn or developed Goods for the Customer, then the copyright in any
designs and drawings and documents shall remain the property of SWIA. Under no
circumstances may such designs, drawings and documents be used without the
express written approval of SWIA.
21.4 The Customer warrants that all designs, specifications or instructions given to SWIA will
not cause SWIA to infringe any patent, registered design or trademark in the
execution of the Customer’s order and the Customer agrees to indemnify SWIA
against any action taken by a third party against SWIA in respect of any such
21.5 The Customer agrees that SWIA may (at no cost) use for the purposes of marketing or entry
into any competition, any documents, designs, drawings or Goods which SWIA has
created for the Customer.
22. Default and Consequences of Default
22.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due,
until the date of payment, at a rate of two and a half percent (2.5%) per
calendar month (and at SWIA’s sole discretion such interest shall compound
monthly at such a rate) after as well as before any judgment.
22.2 If the Customer owes SWIA any money the Customer shall indemnify SWIA from and against
all costs and disbursements incurred by SWIA in recovering the debt (including
but not limited to internal administration fees, legal costs on a solicitor and
own client basis, SWIA’s collection agency costs, and bank dishonour fees).
22.3 Further to any other rights or remedies SWIA may have under this Contract, if a Customer
has made payment to SWIA, and the transaction is subsequently reversed, the Customer
shall be liable for the amount of the reversed transaction, in addition to any
further costs incurred by SWIA under this clause 22 where
it can be proven that such reversal is found to be illegal, fraudulent or in
contravention to the Customer’s obligations under this Contract.
22.4 Without prejudice to SWIA’s other remedies at law SWIA shall be entitled to cancel all
or any part of any order of the Customer which remains unfulfilled and all
amounts owing to SWIA shall, whether or not due for payment, become immediately
(a) any money payable to SWIA becomes overdue, or in SWIA’s opinion the Customer will
be unable to make a payment when it falls due;
(b) the Customer has exceeded any applicable credit limit provided by SWIA;
(c) the Customer 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
(d) a receiver, manager, liquidator (provisional or otherwise) or similar person is
appointed in respect of the Customer or any asset of the Customer.
23.1 Without prejudice to any other remedies the parties may have, if at any time either
party is in breach of any obligation (including those relating to payment)
under these terms and conditions the other party may suspend or terminate the
supply of Services or purchase of Goods to the other party. Neither party will
be liable for any loss or damage the other party suffers because one of the
parties has exercised its rights under this clause.
23.2 If SWIA, due to reasons beyond SWIA’s reasonable control, is unable to the deliver any
Goods and/or Services to the Customer, SWIA may cancel any Contract to which
these terms and conditions apply or cancel Delivery of Goods and/or Services at
any time before the Goods and/or Services are delivered by giving written
notice to the Customer. On giving such notice SWIA shall repay to the Customer
any money paid by the Customer for the Goods and/or Services. SWIA shall not be
liable for any loss or damage whatsoever arising from such cancellation.
23.3 The Customer may cancel Delivery of the Goods and/or Services by written notice served
within twenty-four (24) hours of placement of the order. Failure by the Customer
to otherwise accept Delivery of the Goods and/or Services shall place the Customer
in breach of this Contract.
23.4 Cancellationof orders for Goods made to the Customer’s specifications, or for non-stocklist
items, will definitely not be accepted once production has commenced, or an
order has been placed.
24.1 All emails, documents, images or other recorded information held or used by SWIA is “Personal
Information” as defined and referred to in clause 24.3 and therefore considered confidential. SWIA
acknowledges its obligation in relation to the
handling, use, disclosure and processing of Personal Information pursuant to the Privacy Act 2020 (“the Act”) including Part II of the OECD Guidelines as set out in the Act. SWIA acknowledges that in the event it becomes aware of any data
breaches and/or disclosure of the Customer’s Personal Information, held by SWIA
that may result in serious harm to the Customer, SWIA will notify the Customer
in accordance with the Act. Any release of such Personal Information must
be in accordance with the Act and must be approved by the Customer by written
consent, unless subject to an operation of law.
24.2 Notwithstanding clause 24.1, privacy limitations will extend to SWIA in respect of
Cookies where the Customer utilises SWIA’s website to make enquiries. SWIA
agrees to display reference to such Cookies and/or similar tracking
technologies, such as pixels and web beacons (if applicable), such technology
allows the collection of Personal Information such as the Customer’s:
(a) IP address, browser, email client type and other similar details;
(b) tracking website usage and traffic; and
(c) reports are available to SWIA when SWIA sends an email to the Customer, so SWIA may
collect and review that information (“collectively Personal Information”)
to withdraw that consent, the Customer may manage and control SWIA’s privacy
controls via the Customer’s web browser, including removing Cookies by deleting
them from the browser history when exiting the site.
24.3 The Customer
authorises SWIA or SWIA’s agent to:
(a) access, collect, retain and use any information about the Customer;
(i) including, name, address, D.O.B, occupation, driver’s license details, electronic contact
(email, Facebook or Twitter details), medical insurance details or next of kin
and other contact information (where applicable), previous credit applications,
credit history or any overdue fines balance information held by the Ministry of
Justice for the purpose of assessing the Customer’s creditworthiness; or
(ii) for the purpose of marketing products and services to the Customer.
(b) disclose information about the Customer, whether collected by SWIA from the Customer
directly or obtained by SWIA from any other source, to any other credit
provider or any credit reporting agency for the purposes of providing or
obtaining a credit reference, debt collection or notifying a default by the Customer.
24.4 Where the Customer is an individual the authorities under clause 24.3 are
authorities or consents for the purposes of the Privacy Act 2020.
24.5 The Customer shall have the right to request (by e-mail) from SWIA, a copy of the Personal
Information about the Customer retained by SWIA and the right to request that SWIA
correct any incorrect Personal Information.
24.6 SWIA will destroy Personal Information upon the Customer’s request (by e-mail) or if it
is no longer required unless it is required in order to fulfil the obligations
of this Contract or is required to be maintained and/or stored in accordance
with the law.
24.7 The Customer can make a privacy complaint by contacting SWIA
via e-mail. SWIA will respond to that complaint within seven (7)
days of receipt and will take all reasonable steps to make a decision as to the
complaint within twenty (20) days of receipt of the complaint. In the event
that the Customer is not satisfied with the resolution provided, the Customer
can make a complaint to the Privacy Commissioner at http://www.privacy.org.nz.
25. Service of Notices
25.1 Any written notice given under this Contract shall be deemed to have been given and
(a) by handing the notice to the other party, in person;
(b) by leaving it at the address of the other party as stated in this Contract;
(c) by sending it by registered post to the address of the other party as stated in
(d) if sent by facsimile transmission to the fax number of the other party as stated
in this Contract (if any), on receipt of confirmation of the transmission;
(e) if sent by email to the other party’s last known email address.
25.2 Any notice that is posted shall be deemed to have been served, unless the contrary
is shown, at the time when by the ordinary course of post, the notice would
have been delivered.
26.1 If the Customer at any time upon or subsequent to entering in to the Contract is
acting in the capacity of trustee of any trust or as an agent for a trust
(“Trust”) then whether or not SWIA may have notice of the Trust, the Customer
covenants with SWIA as follows:
(a) the Contract extends to all rights of indemnity which the Customer now or subsequently may
have against the Trust, the trustees and the trust fund;
(b) the Customer has full and complete power and authority under the Trust or
from the Trustees of the Trust as the case maybe to enter into the Contract and
the provisions of the Trust do not purport to exclude or take away the right of
indemnity of the Customer against the Trust, the trustees and the trust fund. The
Customer will not release the right of indemnity or commit any breach of trust
or be a party to any other action which might prejudice that right of
(c) the Customer will not during the term of the Contract without consent in writing of SWIA (SWIA
will not unreasonably withhold consent), cause, permit, or suffer to happen any
of the following events:
(i) the removal, replacement or retirement of the Customer as trustee of the Trust;
(ii) any alteration to or variation of the terms of the Trust;
(iii) any advancement or distribution of capital of the Trust; or
(iv) any resettlement of the
trust fund or trust property.
27.1 Any dispute or difference arising as to the interpretation of these terms and conditions or as to any matter
arising herein, shall be submitted to, and settled by, mediation before
resorting to any external dispute resolution mechanisms (including arbitration
or court proceedings) by notifying the other party in writing setting out the
reason for the dispute. The parties shall share equally the mediator’s fees.
Should mediation fail to resolve the dispute, the parties shall be free to
pursue other dispute resolution avenues.
27.2 The failure by either party to enforce any provision of these terms and conditions
shall not be treated as a waiver of that provision, nor shall it affect that
party’s right to subsequently enforce that provision. If any provision of these
terms and conditions shall be invalid, void, illegal or unenforceable the
validity, existence, legality and enforceability of the remaining provisions
shall not be affected, prejudiced or impaired.
27.3 These terms and conditions and any Contract to which they apply shall be governed by the laws of New Zealand and are subject to the jurisdiction of the courts of New Zealand.
27.4 Subject to the CGA, the liability of SWIA and the Customer under this Contract shall be limited to the Price.
27.5 SWIA may licence and/or assign all or any part of its rights and/or obligations
under this Contract without the Customer’s consent provided the
assignment does not cause detriment to the Customer.
27.6 The Customer cannot licence or assign without the written approval of SWIA.
27.7 SWIA may elect to subcontract out any part of the Services but shall not be relieved
from any liability or obligation under this Contract by so doing. Furthermore,
the Customer agrees and understands that they have no authority to give any
instruction to any of SWIA’s sub-contractors without the authority of SWIA.
27.8 The Customer agrees that SWIA may amend their general terms and conditions for
subsequent future Contracts with the Customer by disclosing such to the Customer
in writing. These changes shall be deemed to take effect from the date on which
the Customer accepts such changes, or otherwise at such time as the Customer
makes a further request for SWIA to provide Goods and/or Services to the Customer.
party shall be liable for any default due to any act of God, war, terrorism,
strike, lock-out, industrial action, fire, flood, storm, national or global
pandemics and/or the implementation of regulation, directions, rules or measures
being enforced by Governments or embargo, including but not limited to, any
Government imposed border lockdowns (including, worldwide destination ports),
etc, (“Force Majeure”) or other event beyond the reasonable control of either
party. This clause does not apply to a
failure by the Customer to make any payment due to SWIA, following cessation of
a Force Majeure.
27.10 Both parties warrant that they have the power to
enter into this Contract and have obtained all necessary authorisations to
allow them to do so, they are not insolvent and that this Contract creates
binding and valid legal obligations on them.