AGREEMENT FOR TERMS AND CONDITIONS OF SALE BETWEEN TOYOTA MATERIAL HANDLING NEW ZEALAND LIMITED (“the Vendor”) and the Purchaser

BACKGROUND

The Vendor supplies all goods (the “Goods”) and services (the “Services”) to the Purchaser, despite anything that may be stated to the contrary in the Purchaser’s enquiries or on the Purchaser’s orders, on the following conditions .

1. APPLICATION
1.1 The terms in this Agreement apply to all offers, quotations and agreements entered into between the Vendor and the Purchaser for the supply of Goods and Services from the date of this Agreement. This Agreement together with any credit application, offers, quotations and agreements shall form a contract (‘Contract’).
1.2 The placement of an order shall be deemed to be acceptance of these terms by the Purchaser.
1.3 A Contract is deemed to be formed when the Vendor notifies the Purchaser of its acceptance of an order. The Purchaser cannot cancel an order once this has been accepted by the Vendor.
1.4 In the case of any conflict arising between these terms and any other terms of the Purchaser, these terms shall prevail.

2. NON-CONTRACTUAL TERMS
2.1 All performance figures are based on estimates only and the description of the Goods in the Contract and in all drawings, specifications, brochures, catalogues and other information supplied is given as an aid to identification or description of Goods or Services and is not a condition that the Goods or Services shall correspond precisely with any such description.
2.2 The Purchaser agrees that it has not relied on any representations, statements, warranties, conditions or agreements by the Vendor, its employees or agents that conflict with this Agreement.
2.3 All advice and information provided by the Vendor to the Purchaser is given gratuitously and without liability. The Purchaser must satisfy itself that the Goods or Services are suitable for the Purchaser’s intended use and fit for the Purchaser’s intended purpose.

3. PRICE
3.1 All prices are quoted on prevailing rates. Any increase in costs to the Vendor for Goods whenever and howsoever arising shall be payable by the Purchaser.
3.2 Where applicable Goods & Services Tax shall be charged and payable in addition to the quoted price.
3.3 Quotations remain open for acceptance for a period of 30 days. Any quotation may be withdrawn by the Vendor at any time before acceptance by the Purchaser.
3.4 Any deposit required by the Vendor will be paid immediately by the Purchaser upon the making of an order and, unless otherwise specified on the deposit terms, is nonrefundable.

4. PAYMENT
4.1 Payment of the price and any price increase shall be made in full without deduction, set off or counterclaim as follows:
(i) Immediately upon delivery of any machine.
(ii) On the 20th of the month following invoicing for parts and Services.
(iii) At the point of sale in respect of all cash sales of Goods and Services.
(iv) Without limiting clause 4.1 above, the Purchaser must not set off any amount owed to the Vendor under this Agreement against any amount that the Vendor owes the Purchaser under this Agreement or under any other agreement or arrangement between the Parties.
4.2 The Vendor may charge interest at the rate of 18% per annum (calculated daily) in respect of any overdue account up to and including the date of payment (both prior to and following any judgment obtained) together with all associated costs incurred in recovering payment.
4.3 The Vendor will apportion payments by the Purchaser to outstanding accounts in such amounts and in such order as the Vendor may determine in its sole discretion.
4.4 The Vendor grants credit to the Purchaser in its absolute discretion and may, without prior notification to the Purchaser, review, limit, vary or withdraw credit without incurring any liability to the Purchaser

5. DELIVERY AND RISK
5.1 Delivery shall occur when the Vendor hands possession and control of the Goods to the Purchaser or to a third party for transportation. Thereafter the goods shall be at the sole risk of the Purchaser and all costs of insurance, freight and delivery shall be paid by the Purchaser PROVIDED HOWEVER that the Vendor shall be under no obligation to arrange any such insurance, freight or delivery on behalf of the Purchaser. Delivery of Goods may be made by instalments. Each instalment shall be treated as a separate contract subject to this Agreement.

6. DELAYS AND NON-DELIVERY
6.1 Delivery dates given by the Vendor for delivery of the Goods are given in good faith but are an estimate only and are not to be treated as a condition of a Contract. The Vendor shall not be liable for any loss or damage suffered by the Purchaser due to the non-performance, non-delivery or delay in delivery of the Goods howsoever arising. If the Purchaser fails or refuses to accept delivery of the Goods, any liability or costs incurred by the Vendor as a result of the delay in delivery shall be paid by the Purchaser on demand.

7. PROPERTY
7.1 Notwithstanding the passing of risk, all of the Goods shall remain the sole property of the Vendor until the Purchaser has paid for the same in full together with all sums due from the Purchaser to the Vendor. Receipt by the Vendor of any cheque or other bill of exchange or any promissory note shall not be deemed to be payment or conditional payment until the same has been honoured or cleared and until such time shall not prejudice or affect the Vendor’s rights, power or remedies against the Purchaser and/or Goods. This claim and these conditions will apply to all after acquired Goods,
7.2 Until payment in full has been made for the Goods and all other sums due to the Vendor, the Purchaser acknowledges and agrees as follows:
(i) The Goods are held by the Purchaser as bailee and may only be resold as the agent for and on behalf of the Vendor.
(ii) The Purchaser shall store the Goods separately from the Purchaser’s own Goods and any other Goods supplied by the Purchaser.
(iii) The Purchaser hereby irrevocably gives the Vendor, its agents and employees leave and license without the necessity of giving any notice to enter on and into any premises occupied by the Purchaser to search for and remove any of the Goods supplied in which the Vendor has ownership without any way being liable to the Purchaser or any person or company claiming through the Purchaser. If the goods or any of them are wholly or partially attached to other goods, the Vendor may, where practical, disconnect or sever in any way whatsoever as may be necessary to remove the Goods.
(iv) The Purchaser in reselling the Goods as the Vendor's agent shall not represent to any other person that it is acting for the Vendor and the Vendor will not be bound by any contract with any other person to which the Purchaser is a party. The Purchaser shall pay into a separate account the proceeds from the resale of the Goods and shall pay the full price of the Goods together with all or any outstanding indebtedness to the Vendor from this account.
(v) This clause is inserted to protect the Vendor and is intended to enable the Vendor to retake possession of the Goods, and at the Vendor’s option to resell the Goods which it has resumed possession of, following default by the Purchaser and in the event of the receivership or insolvency of the Purchaser.
(vi) If one or more of the provisions of this clause 7 shall be invalid or unenforceable, the remaining provisions shall not be affected thereby and shall continue in full force and effect.

8. DRIVER TRAINING
8.1 the Purchaser shall ensure that any person booked for training with the Vendor has the required driver’s license and meets all other entry requirements for the course (as specified by the Vendor from time to time) and is competent to undertake the training booked. The Vendor reserves the right to suspend driver training at any time if it is not satisfied that the driver can undertake the training safely or believes the driver is likely to be a danger to themselves or others. In the event driver training is cancelled the Purchaser will be reimbursed for the portion of any training fees paid which are unused.

9. PERSONAL PROPERTY SECURITIES ACT 1999 (“PPSA”)
9.1 The Purchaser grants to the Vendor a security interest in all present and after acquired Goods supplied by the Vendor to the Purchaser and all proceeds of the Goods for the purposes of the PPSA and as security for the payment for the Goods and any amount owing by the Purchaser to the Vendor from time to time and the performance of any obligations owed by the Purchaser.
9.2 On the request of the Vendor, the Purchaser shall promptly execute any documents and do anything else required by the Vendor to give effect to this Agreement and to ensure that the security interest created under this Agreement constitutes and remains a first ranking perfected security interest over the Goods.
9.3 The Purchaser:
(i) Shall notify the Vendor in writing of a change of name at least 14 days prior to the date on which the change of name becomes effective;
(ii) Shall provide any information the Vendor reasonably requires completing a financing statement or a financing change statement; and
(iii) Waives any right to receive a copy of a Verification Statement under the PPSA.
9.4 The Purchaser will pay to the Vendor all costs, expenses and other charges incurred, expended or paid by the Vendor in relation to the filing of a financing statement or a financing change statement.
9.5 The Purchaser agrees that nothing in sections 114(1)(a), 117(1)(c), 133 and 134 of the PPSA shall apply to this Agreement.
9.6 The Purchaser agrees that its rights as debtor in sections 116, 120(2), 121, 125, 126, 127, 129 and 131 of the PPSA shall not apply to this Agreement.



CLAIMS
10.1 Subject to the limitations contained in these terms and conditions the Vendor warrants all the new equipment manufactured by it against faulty workmanship or materials for 30 days after delivery pursuant to clause 5.1 and agrees to replace or repair the same at its cost (excluding travelling costs and expenses). The Vendor will repair or replace the equipment as soon as reasonably practicable but will not be liable for any costs/losses due to any delay in replacing or repairing such equipment.
10.2 The Vendor will not accept any claim, and is not required to do so, unless the Purchaser advises the Vendor in writing within 30 days after delivery of the Goods or completion of the Services. If the Purchaser does not comply with the requirements in this clause, it will be deemed to have accepted the Goods and Services and the Vendor will not incur any liability whatsoever to the Purchaser in relation to the Goods and Services.
10.3 Proprietary articles supplied as part of the Goods are subject only to the warranty given by the makers of the articles.
10.4 The Vendor is not responsible for any damage whatsoever caused either to the Goods supplied or as a result of the malfunction of the Goods if:
(i) The Goods are fitted by unqualified trades persons or are fitted in an unprofessional manner; or
(ii) The instructions for operating the Goods have not been complied with; or
(iii) The Goods are adapted to a use for which they are not specifically intended; or
(iv) The Goods are added to or repaired using components not recommended or approved by the manufacturer; or
(v) The Goods are improperly stored or transported; or
(vi) The damage is the result of fair wear and tear, lack of lubrication, negligence, dirt, misuse, neglect or accident.
10.5 To the fullest extent permissible by law and without restricting the limitations of liability contained elsewhere in these terms and conditions, the Vendor’s liability whether in tort (including negligence), contract or otherwise in relation to the supply of the Goods and Services and the Goods themselves is limited to the purchase price of the Goods or services in respect of which such liability arises.
10.6 The warranties contained in this clause will be effective only where the Purchaser has complied with its payment obligations and to the fullest extent permitted by law, this warranty shall be the Purchaser’s sole remedy against the Vendor.

11. GENERAL WARRANTY EXCLUSIONS
11.1 To the fullest extent permitted by law, all warranties, conditions or other terms implied by law are excluded and the Vendor shall not otherwise be liable, whether under statue, regulation, by-law or at common law or otherwise for any damage, loss or injury caused by any defect, failure or non-compliance of the Goods or Services of the Vendor. The Vendor shall not be liable for any consequential, indirect or special damage or loss of any kind whatsoever, nor shall the Vendor be liable for any damage or loss caused to the Purchaser’s servants, agents, customers or other persons whatsoever.
11.2 Where this Agreement would otherwise be subject to the Consumer Guarantees Act 1993, the Vendor agrees that it is acquiring the Goods and Services for business purposes and that the Consumers Guarantees Act 1993 does not apply to the supply of the Goods or Services to the Purchaser.
11.3 Where the Goods and Services are being supplied by the Vendor and acquired by the Purchaser in trade, the parties agree that sections 9, 12A and 13 of the Fair Trading Act 1986 will not apply between the parties, and that it is fair and reasonable to exclude their application.
11.4 Any Goods which are used, or second hand are sold on an as is where is basis.
11.5 Nothing in this Agreement affects or attempts to exclude in any way the Purchaser’s rights under the Consumer Guarantees Act 1993 where the Purchaser is a “consumer” for the purposes of that Act.

12. LIABILITY
12.1 The exclusions in this clause 12 are in addition to the exclusions contained in clause 11 above.
12.2 The Consumer Guarantees Act 1993, the Fair Trading Act 1986 and other statutes may imply warranties or conditions or impose obligations upon the Vendor which cannot by law (or which can only to a limited extent by law) be excluded or modified. In respect of any such implied warranties, conditions or terms imposed on the Vendor, the Vendor’s liability shall, where it is allowed, be excluded or if not able to be excluded only apply to the minimum extent required by the relevant statute.
12.3 Except as otherwise provided by clause 12.2:
(i) The Vendor shall not be liable for any loss or damage of any kind whatsoever including consequential loss whether suffered or incurred by the Purchaser or another person and whether in contract or tort (including negligence) or otherwise and irrespective of whether such loss or damage arises directly or indirectly from Goods and Services provided by the Vendor to the Purchaser; and
(ii) The Purchaser indemnifies, and holds the Vendor, its employees, agents and contractors harmless, from and against all claims and loss of any kind whatsoever however caused or arising and without limiting the generality of the foregoing of this clause whether caused or arising as a result of the negligence of the Vendor or otherwise, brought by any person in connection with any matter, act, omission, or error by the Vendor, its agents or employees in connection with the Goods and Services.

13. CREDITS
13.1 Any credit note, discount, rebate or allowances to the Purchaser shall be deemed to be without prejudice and shall not be effective unless all moneys owing have been paid and all obligations have been fulfilled by the Purchaser in accordance with these terms. Discounts shall not apply to sales tax, freight or other extras or auxiliaries. Credits for returned parts are at the Vendor’s discretion provided the parts:
(i) are returned within 14 days of receipt;
(i) are returned freight free;
(ii) are in good saleable condition in manufacturers/supplier’s original containers;
(iii) are accompanied by number and date of supplying invoice; and
(iv) are not a procured item.

14. DEFAULT
14.1 The Vendor shall be entitled to cancel the Agreement and/or all or any part of any Contract or Contracts with the Purchaser, in addition to the other remedies contained in these terms and conditions, in the following circumstances:
(i) If any amounts payable by the Purchaser are overdue; or
(ii) If the Purchaser fails to meet any obligation under this or any other contract; or obligation to the Vendor; or
(iii) If the Purchaser becomes or is likely to become insolvent; or
(iv) If a Receiver is appointed in respect of the assets of the Purchaser; or
(v) If the Purchaser no longer carries on business or threatens to cease carrying on business; or
(vi) If an arrangement with the Purchaser’s creditors is likely to be made; or
(vii) The Vendor in its sole opinion believes the Goods are at risk.
14.2 If the Purchaser makes default in payment or in taking delivery in time, the Vendor shall be entitled to terminate the Contract so far as it is unfulfilled, without prejudice to its right to recover all sums owing to it in respect of deliveries already made. Upon termination of the Contract, the Vendor shall be entitled to dispose of the balance of the Goods contracted for and the Purchaser shall indemnify the Vendor for any loss in price incurred by its realisation against the price against which such Goods were contracted to be bought by the Purchaser.

14.3 In addition to the rights contained in section 109 of the PPSA, the Vendor may recover and / or resell any of the Goods and enter any premises where the Vendor believes the Goods are stored at any time without notice. If the Goods or any of them are wholly or partially attached to the other goods, the Vendor may, where practical, disconnect or sever in any way whatsoever as may be necessary to remove the Goods. The Vendor may recover and resell for its own account sufficient Goods to satisfy all unpaid liabilities and the costs of resale. If the Vendor recovers any excess, the Vendor will not be liable in damages to the Purchaser but must account to the Purchaser for the excess. The Vendor may appoint a Receiver in respect of the Goods (including the proceeds of the same) supplied to the Purchaser, under this Agreement. Any Receiver so appointed may take possession of the Goods and resell them. A Receiver has (in addition to the powers conferred by the Receiverships Act 1993, at law or otherwise and except to the extent expressly excluded by his or her terms of appointment) all the powers in relation to the Goods to do anything the Purchaser (or a person with absolute ownership of the Goods and carrying on the business for its own benefit) could do and to exercise such powers on such terms and conditions as the Receiver thinks fit.

14.4 The Purchaser will pay all costs and expenses (including costs on a solicitor / client basis and debt collectors’ costs) the Vendor incurs in enforcing or attempting to enforce the Vendor’s rights under this clause. The Vendor may deduct any costs and expenses incurred from the proceeds of sale of any Goods recovered from the Purchaser.

15. INDEMNITY
15.1 The Purchaser indemnifies, and keeps indemnified, the Vendor and its employees, representatives and agents (each an “Indemnified Party”) against all loss suffered or incurred by an Indemnified Party arising out of or related to:
(a) a breach by the Purchaser or its personnel of any provision of this Agreement; or
(b) any negligent act or omission of the Purchaser in connection with this Agreement.

16. CHANGES IN DESIGN
16.1 The Vendor reserves the right at any time to change the design, construction or materials of the Goods but shall not be required to incorporate such changes in Goods already delivered.

17. WAIVER
17.1 All the original rights, powers, exemptions and remedies of the Vendor shall remain in full force notwithstanding any neglect, forbearance or delay in the enforcement thereof. The Vendor shall not be deemed to have waived any conditions unless such waiver be in writing from the Vendor and any such waiver shall apply to and operate only in the particular transaction, dealing or matter.

CONFIDENTIALITY
18.1 The parties agree to keep confidential the Confidential Information of one another. The parties must not (and must ensure that their representatives do not) use, reproduce or disclose the Confidential Information of the other for any purpose except to the extent necessary to perform their respective obligations under this Agreement.

19. INTELLECTUAL PROPERTY
19.1 The Vendor retains ownership of all its Intellectual Property Rights used in the supply of Goods and/or Services to the Purchaser and grants the Purchaser a royalty-free, non-assignable, revocable, licence to use its Intellectual Property Rights as part of the supply of the Goods.

20. INTERPRETATION
20.1 These terms shall be given a fair, large and liberal interpretation to the fullest extent permitted by law and shall not be construed against the Vendor.
20.2 In this Agreement:
(i) unless the contrary intention appears, the terms ‘default’, ‘financing statement’, ‘financing change statement’, ‘goods’, ‘proceeds’, ‘at risk’, ‘security interest’ and ‘Verification Statement’ each have the meaning given to that term in the PPSA.
(ii) Confidential Information means all information (whether of a technical, industrial, engineering, scientific, business or financial nature or otherwise) whether written, oral or in electronic form of a person (“Owner”) which is of a confidential nature of which another person (“Recipient”) first becomes aware, whether before or after the date of this Agreement, either through disclosure by the Owner to the Recipient or through the Recipient’s involvement with the Owner in the course of the supply of the Services and/or Goods and all documents provided in relation to the supply of same.
(iii) Intellectual Property Rights means any intellectual or industrial property rights (including any registered or unregistered trademarks, patents, designs or copyrights).
(iv) Agreement includes these terms and conditions and any related credit application.
(v) Purchaser means the purchaser, the applicant under any credit application and any person acting on behalf of and with the authority of the Purchaser, or any person purchasing Goods and Services from the Vendor.
(vi) Guarantor includes any persons executing a guarantee on the Vendor’s terms.

21. PROPER LAW
21.1 The Agreement and all Contracts shall be governed by the law of New Zealand and the Purchaser hereby submits to the exclusive jurisdiction of the New Zealand Courts.

22. ENTIRE AGREEMENT
22.1 This Agreement and any associated order constitute the sole understanding of the parties in relation to its subject matter and supersede all prior understandings, written or oral, which will be of no further force or effect.

23. VARIATION
23.1 The Vendor may vary this Agreement by putting the varied terms on the Vendor’s website (www.tmhnz.co.nz). Goods and Services ordered after the date we notify you of the publication of the varied terms will be subject to the variation and the placing of the order shall be deemed to be an acceptance of such varied Agreement.

24. FORCE MAJEURE
24.1 The Vendor will not be in breach of any of its obligations to the Purchaser under this Agreement because of any failure on the Vendor’s part directly or indirectly due to a cause beyond its reasonable control.

25. ACKNOWLEDGEMENT
25.1 The Purchaser acknowledges that it has received a copy of this Agreement and in particular that the terms contained herein constitute a “security agreement” for the purposes of the PPSA