Terms & Conditions of trade

1.1 “Contract” means the terms and conditions contained herein, together with any quotation, order, invoice or other document or amendments expressed to be supplemental to this Contract.

1.2 “ECHD” means East Coast Heavy Diesel & Machinery Limited, its successors and assigns or any person acting on behalf of and with the authority of East Coast Heavy Diesel & Machinery Limited.

1.3 “Customer” means the person/s, entities or any person acting on behalf of and with the authority of the Customer requesting ECHD 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 severally; and

(b) if the Customer is a partnership, it shall bind each partner jointly and severally; and

(c) if the Customer is a part of a Trust, shall be bound in their capacity as a trustee; and

(d) includes the Customer’s executors, administrators, successors and permitted assigns.

1.4 “Parts” means all Parts or Services supplied by ECHD to the Customer at the Customer’s request from time to time (where the context so permits the terms ‘Parts’ or ‘Services’ shall be interchangeable for the other).

1.5 "Confidential Information” means information of a confidential nature whether oral, written or in electronic form including, but not limited to, this Contract, either party’s intellectual property, operational information, know-how, trade secrets, financial and commercial affairs, contracts, client information (including but not limited to, “Personal Information” such as: 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) and pricing details.

1.6 “Cookies” 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 ECHD’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 website.

1.7 “Price” means the Price payable (plus any Goods and Services Tax (“GST”) where applicable) for the Parts as agreed between ECHD and the Customer in accordance with clause 5 below.

2.1 The Customer is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Customer places an order for or accepts Delivery of the Parts.

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:

(a) the supply of Parts on credit shall not take effect until the Customer has completed a credit application with ECHD and it has been approved with a credit limit established for the account; and

(b) in the event that the supply of Parts request exceeds the Customer’s credit limit and/or the account exceeds the payment terms, ECHD reserves the right to refuse delivery; and

(c) the supply of Parts for accepted orders may be subject to availability and if, for any reason, Parts are not or cease to be available, ECHD reserves the right to vary the Price with alternative Parts as per clause 5.2, subject to prior confirmation and agreement of both parties. ECHD also reserves the right to halt all Services until such time as ECHD and the Customer agree to such changes. ECHD shall not be liable to the Customer for any loss or damage the Customer suffers due to ECHD exercising its rights under this clause;

(d) any advice, recommendation, information, assistance or service provided by ECHD in relation to Parts or Services supplied is given in good faith to the Customer, or the Customer’s agent and is based on ECHD’s own knowledge and experience and shall be accepted without liability on the part of ECHD. Where such advice or recommendations are not acted upon then ECHD shall require the Customer or their agent to authorise commencement of the Services in writing. ECHD shall not be liable in any way whatsoever for any damages or losses that occur after any subsequent commencement of the Services.

2.5 In the event that:

(a) the Parts and/or Services provided by ECHD are the subject of an insurance claim that the Customer has made, then the Customer shall be responsible for the payment of any monies payable to the insurance company and agrees to honour their obligation for payment for such transactions invoiced by ECHD and shall ensure payment is made by the due date irrespective of whether the insurance claim is successful;

(b) the Customer’s vehicle is deemed uneconomical to repair, then the Customer shall be responsible for all Services undertaken and Parts consumed up until such a time that ECHD is advised in writing that the vehicle is a total loss.

(c) ECHD is required to provide the Services urgently which may require ECHD’s staff to work outside normal business hours (including but not limited to working, through lunch breaks, weekends and/or Public Holidays) then ECHD reserves the right to charge the Customer additional travel and labour costs (penalty rates will apply) and Parts, unless otherwise agreed between ECHD and the Customer;

(d) ECHD is requested to store the Customer’s vehicle/machinery, or where the vehicle or machinery is not collected within twenty-four (24) hours of advice to the Customer that it is ready for collection, then ECHD (at its sole discretion) may charge a reasonable fee per day for storage;

(e) ECHD 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 ahead.

2.6 For roadside rescue or on-site assistance, a minimum call-out fee shall be applicable, which shall be increased for any after-hours call-outs. Additionally, all Services provided shall be charged for at an hourly-basis unless agreed upon by the Customer and ECHD.

2.7 Services completed under warranty or insurance claims will not cover consumables (including, but not limited to, lubricants, fuel, brake fluids, coolants, tyres, brake pads, air filters, etc.). Any consumables used during the Services shall be charged for as a variation in accordance with clause 5.2.

2.8 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.

3.1 The Customer acknowledges and accepts that ECHD 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 ECHD 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 ECHD in respect of the Services.

3.2 In the event such an error and/or omission occurs in accordance with clause 3.1, and is not attributable to the negligence and/or wilful misconduct of ECHD; the Customer shall not be entitled to treat this Contract as repudiated nor render it invalid.

4.1 The Customer shall give ECHD 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 ECHD as a result of the Customer’s failure to comply with this clause.

5.1 At ECHD’s sole discretion the Price shall be either:

(a) as indicated on any invoice provided by ECHD to the Customer; or

(b) ECHD’s quoted price (subject to clause 5.2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.

5.2 ECHD reserves the right to change the Price:

(a) if a variation to the Parts which are to be supplied is requested; or

(b) if a variation to the Services originally scheduled (including any applicable plans or specifications) is requested; or

(c) if during the course of the Services, the Parts are not or cease to be available from ECHD’s third party suppliers, then ECHD reserves the right to provide alternative Parts; or

(d) where additional Services are required due to the discovery of hidden or unidentifiable difficulties (including, but not limited to, obscured or other defects found on closer inspection or misdiagnosis in the first instance, delays in obtaining Parts, etc.) which are only discovered on commencement of the Services; or

(e) in the event of increases to ECHD in the cost of taxes, currency exchange rates, labour rates or materials which are beyond ECHD’s control.

5.3 Variations will be charged for on the basis of ECHD’s quotation, and will be detailed in writing, and shown as variations on ECHD’s invoice. The Customer shall be required to respond to any variation submitted by ECHD within ten (10) working days. Failure to do so will entitle ECHD 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.

5.4 At ECHD’s sole discretion a non-refundable deposit may be required.

5.5 Time for payment for the Parts being of the essence, the Price will be payable by the Customer on the date/s determined by ECHD, which may be:

(a) on Delivery of the Parts;

(b) by way of instalments/progress payments in accordance with ECHD’s payment schedule;

(c) 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 notices;

(d) the date specified on any invoice or other form as being the date for payment; or

(e) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Customer by ECHD.

5.6 Payment may be made by cash, electronic/on-line banking, credit card (a surcharge per transaction may apply), or by any other method as agreed to between the Customer and ECHD.

5.7 ECHD may in its discretion allocate any payment received from the Customer towards any invoice that ECHD determines and may do so at the time of receipt or at any time afterwards. On any default by the Customer ECHD may re-allocate any payments previously received and allocated. In the absence of any payment allocation by ECHD, payment will be deemed to be allocated in such manner as preserves the maximum value of ECHD’s Purchase Money Security Interest (as defined in the PPSA) in the Parts.

5.8 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 ECHD nor to withhold payment of any invoice because part of that invoice is in dispute.

5.9 Unless otherwise stated the Price does not include GST. In addition to the Price, the Customer must pay to ECHD an amount equal to any GST ECHD must pay for any supply by ECHD under this or any other contract for the sale of the Parts. 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.

6.1 Delivery (“Delivery”) of the Parts is taken to occur at the time that:

(a) the Customer or the Customer’s nominated carrier takes possession of the Parts at ECHD’s address; or

(b) ECHD (or ECHD’s nominated carrier) delivers the Parts to the Customer’s nominated address even if the Customer is not present at the address.

6.2 Where ECHD is to provide any Services at the Customer’s nominated address then the Customer shall be liable for all costs incurred by ECHD from the time they depart from, and until they return to, their normal place of work (including, but not limited to, mileage and time calculated at ECHD’s standard rates and any Parts purchased for the Services).

6.3 At ECHD’s sole discretion the cost of Delivery is either included in the Price or is in addition to the Price.

6.4 ECHD may deliver the Parts in separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.

6.5 Delivery of the Parts to a third party nominated by the Customer is deemed to be delivery to the Customer for the purposes of this Contract.

6.6 Any time specified by ECHD for Delivery of the Parts is an estimate only and ECHD will not be liable for any loss or damage incurred by the Customer as a result of Delivery being late. However both parties agree that they shall make every endeavour to enable the Parts to be delivered at the time and place as was arranged between both parties. In the event that ECHD is unable to supply the Parts as agreed solely due to any action or inaction of the Customer, then ECHD shall be entitled to charge a reasonable fee for redelivery and/or storage.

7.1 Risk of damage to or loss of the Parts passes to the Customer on Delivery and the Customer must insure the Parts on or before Delivery.

7.2 If any of the Parts are damaged or destroyed following Delivery but prior to ownership passing to the Customer, ECHD is entitled to receive all insurance proceeds payable for the Parts. The production of these terms and conditions by ECHD is sufficient evidence of ECHD’s rights to receive the insurance proceeds without the need for any person dealing with ECHD to make further enquiries.

7.3 If the Customer requests ECHD to leave Parts outside ECHD’s premises for collection or to deliver the Parts to an unattended location then such Parts shall be left at the Customer’s sole risk.

7.4 The Customer acknowledges that all descriptive specifications, illustrations, dimensions and weights stated in ECHD’s or the manufacturer’s fact sheets, price lists or advertising material, are approximate only and are given by way of identification only. The Customer shall not be entitled to rely on such information, and any use of such does not constitute a sale by description, and does not form part of the contract, unless expressly stated as such in writing by ECHD.

7.5 The Customer shall be responsible for ensuring that the Parts ordered are suitable for their intended use.

7.6 ECHD is only responsible for Parts that are replaced by ECHD and does not at any stage accept any liability in respect of previous services and/or parts supplied by any other third party that subsequently fail and found to be the source of the failure, the Customer agrees to indemnify ECHD against any loss or damage to the Parts, or caused by the Parts, or any part thereof howsoever arising.

7.7 It is the Customer’s responsibility to:

(a) ensure that the vehicle or machinery is insured against all possible damage (including, but not limited to, the perils of accident, fire, theft and burglary and all other usual risks) whilst stored on ECHD’s premises. The vehicle or machinery is at all times stored and repaired at the Customer’s sole risk; and

(b) remove any personal/valuable/perishable items from the vehicle or machine prior to ECHD carrying out the Services. ECHD shall not liable in the event of any apparent loss or damage to personal/valuable/perishable items left or stored in the vehicle.

7.8 ECHD shall not be responsible for:

(a) the loss of or damage to the vehicle, its accessories or contents while garaged, being serviced or being driven in connection with the work authorised unless caused by the negligence of ECHD or ECHD’s employees; and

(b) any defect, deterioration and/or damage to the Parts if the Customer does not follow ECHD’s recommendations.

7.9 The Customer acknowledges and accepts that:

(a) Parts supplied may exhibit variations in shade, colour, texture, surface and finish, and may fade or change colour over time. ECHD will make every effort to match batches of product supplied in order to minimise such variations but shall not be liable in any way whatsoever where such variations occur; and

(b) where ECHD has performed temporary repairs on the vehicle that:

(i) ECHD offers no guarantee against the reoccurrence of the initial fault, or any further damage caused; and

(ii) ECHD will immediately advise the Customer of the fault and shall provide the Customer with an estimate for the full repair required;

(c) in the event that the vehicle is stored for any period on ECHD’s premises that it is done so at the Customer’s own risk and it shall be the Customer’s responsibility to ensure their vehicle and its contents are insured adequately or at all;

(d) ECHD can only provide its Services on a vehicle in its current state as supplied to ECHD therefore ECHD shall not accept any responsibility for the workmanship of any third party that has worked on a Customer’s vehicle prior to Services being undertaken by ECHD (including, but not limited to, poor paintwork or repairs).

7.10 The Customer also acknowledges and accepts that ECHD shall be entitled to:

(a) retain any components replaced during the provision of the Services; and

(b) the right to retain all proceeds obtained from the sale of such components to any auto recycler or salvage yard.

7.11 ECHD will not be responsible for any damages whatsoever to the Parts resulting from the malfunction of such Parts where they are:

(a) fitted by an unqualified trades person(s); and

(b) fitted in an non-compliant manner to current regulations; and

(c) in any way adapted to a use to which they are not specifically intended; and

(d) added to or repaired by components not recommended or approved by the manufacturer of the Parts.

7.12 Where ECHD replaces tyres, ECHD will charge a fee for the disposal of the unit. It is agreed by the Customer that should ECHD be able to dispose of the tyre in exchange for payment from a third party the disposal fee may be waived but ECHD will retain any excess funds.

7.13 Where the Customer has purchased Parts for racing purposes, such Parts are supplied on the understanding that they will be used strictly as per the manufacturer’s instructions. The Customer acknowledges that they accept responsibility for the suitability of purpose and ECHD shall not be responsible for any loss, damage or injury due to misuse or inappropriate use of the Parts supplied. The Customer agrees for any warranty claims it is the Customer’s responsibility to deal with the manufacturer directly in the event of any claim on such products.

8.1 ECHD or its employees may test drive or carry out tests on the vehicle or Parts at ECHD’s discretion. ECHD will not be liable for (and the Customer indemnifies ECHD against) any damages caused to, or by, the vehicle or Parts during such tests, collecting or delivery unless it arises from the recklessness or wilful misconduct of ECHD or its employees.

9.1 ECHD 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, ECHD accepts no responsibility for any loss, damages, or costs however resulting from these inaccurate plans, specifications or other information.

10.1 The Customer shall ensure that ECHD has clear and free access to at all times to enable them to undertake the Services where ECHD is instructed to carry out the Services on-site. ECHD 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 ECHD.

11.1 The Customer and ECHD shall comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities that may be applicable to the Services including any WorkSafe health and safety laws relating or any other relevant safety standards or legislation pertaining to the Services.

11.2 The Customer shall obtain (at the expense of the Customer) all licenses and approvals that may be required for the Services.

11.3 Notwithstanding clause 11.1 and pursuant to the Health & Safety at Work Act 2015 (the “HSW Act”) ECHD agrees at all times to comply with sections 28 and 34 of the “HSW Act” with meeting their obligations for health and safety.

12.1 ECHD and the Customer agree that ownership of the Parts shall not pass until:

(a) the Customer has paid ECHD all amounts owing to ECHD; and

(b) the Customer has met all of its other obligations to ECHD.

12.2 Receipt by ECHD 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.

12.3 It is further agreed that until ownership of the Parts passes to the Customer in accordance with clause 12.1:

(a) the Customer is only a bailee of the Parts and must return the Parts to ECHD on request;

(b) the Customer holds the benefit of the Customer’s insurance of the Parts on trust for ECHD and must pay to ECHD the proceeds of any insurance in the event of the Parts being lost, damaged or destroyed;

(c) the Customer must not sell, dispose, or otherwise part with possession of the Parts other than in the ordinary course of business and for market value. If the Customer sells, disposes or parts with possession of the Parts then the Customer must hold the proceeds of any such act on trust for ECHD and must pay or deliver the proceeds to ECHD on demand;

(d) the Customer should not convert or process the Parts 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 ECHD and must sell, dispose of or return the resulting product to ECHD as it so directs;

(e) the Customer irrevocably authorises ECHD to enter any premises where ECHD believes the Parts are kept and recover possession of the Parts;

(f) ECHD may recover possession of any Parts in transit whether or not Delivery has occurred;

(g) the Customer shall not charge or grant an encumbrance over the Parts nor grant nor otherwise give away any interest in the Parts while they remain the property of ECHD; and

(h) ECHD may commence proceedings to recover the Price of the Parts sold notwithstanding that ownership of the Parts has not passed to the Customer.

13.1 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 Parts and/or collateral (account) – being a monetary obligation of the Customer to ECHD for Services – that have previously been supplied and that will be supplied in the future by ECHD to the Customer.

13.2 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 ECHD may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register;

(b) indemnify, and upon demand reimburse, ECHD for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register or releasing any Parts charged thereby;

(c) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Parts and/or collateral (account) in favour of a third party without the prior written consent of ECHD; and

(d) immediately advise ECHD of any material change in its business practices of selling the Parts which would result in a change in the nature of proceeds derived from such sales.

13.3 ECHD and the Customer agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms and conditions.

13.4 The Customer waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, and 131 of the PPSA.

13.5 Unless otherwise agreed to in writing by ECHD, the Customer waives its right to receive a verification statement in accordance with section 148 of the PPSA.

13.6 The Customer shall unconditionally ratify any actions taken by ECHD under clauses 13.1 to 13.5.

13.7 Subject to any express provisions to the contrary (including those contained in this clause 13), nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.

14.1 In consideration of ECHD agreeing to supply the Parts, 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, 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).

14.2 The Customer indemnifies ECHD from and against all ECHD’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising ECHD’s rights under this clause.

14.3 The Customer irrevocably appoints ECHD and each director of ECHD as the Customer’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 14 including, but not limited to, signing any document on the Customer’s behalf.

15.1 The Customer shall inspect the Parts on Delivery and shall within seven (7) days of Delivery (time being of the essence) notify ECHD of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Customer shall afford ECHD an opportunity to inspect the Parts within a reasonable time following Delivery if the Customer believes the Parts are defective in any way. If the Customer shall fail to comply with these provisions the Parts shall be presumed to be free from any defect or damage. For defective Parts, which ECHD has agreed in writing that the Customer is entitled to reject, ECHD’s liability is limited to either (at ECHD’s discretion) replacing the Parts or repairing the Parts.

15.2 Parts will not be accepted for return other than in accordance with 15.1 above, and provided that:

(a) ECHD has agreed in writing to accept the return of the Parts; and

(b) the Parts are returned at the Customer’s cost within seven (7) days of the Delivery date; and

(c) ECHD will not be liable for Parts which have not been stored or used in a proper manner; and

(d) the Parts are returned in the condition in which they were delivered and with all packaging material, brochures and instruction material in as new condition as is reasonably possible in the circumstances.

15.3 ECHD may (in its discretion) accept the return of Parts for credit but this may incur a handling fee of twenty five percent (25%) of the value of the returned Parts plus any freight.

15.4 Subject to clause 15.1, non-stocklist items or Parts made to the Customer’s specifications are not acceptable for credit or return.

16.1 For Parts not manufactured by ECHD, the warranty shall be the current warranty provided by the manufacturer of the Parts. ECHD 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 Parts.

16.2 In the case of second hand Parts, the Customer acknowledges that full opportunity to inspect the same has been provided and accepts the same with all faults and that no warranty is given by ECHD as to the quality or suitability for any purpose and any implied warranty, statutory or otherwise, is expressly excluded. ECHD shall not be responsible for any loss or damage to the Parts, or caused by the Parts, or any part thereof however arising.

17.1 If the Customer is acquiring Parts 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 Parts by ECHD to the Customer.

18.1 Where ECHD has designed, drawn or developed Parts for the Customer, then the copyright in any designs and drawings and documents shall remain the property of ECHD. Under no circumstances may such designs, drawings and documents be used without the express written approval of ECHD.

18.2 The Customer warrants that all designs, specifications or instructions given to ECHD will not cause ECHD to infringe any patent, registered design or trademark in the execution of the Customer’s order and the Customer agrees to indemnify ECHD against any action taken by a third party against ECHD in respect of any such infringement.

18.3 The Customer agrees that ECHD may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings or Parts which ECHD has created for the Customer.

19.1 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 ECHD’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.

19.2 If the Customer owes ECHD any money the Customer shall indemnify ECHD from and against all costs and disbursements incurred by ECHD in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, ECHD’s collection agency costs, and bank dishonour fees).

19.3 Further to any other rights or remedies ECHD may have under this Contract, if a Customer has made payment to ECHD, 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 ECHD under this clause 19 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.

19.4 Without prejudice to ECHD’s other remedies at law ECHD shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to ECHD shall, whether or not due for payment, become immediately payable if:

(a) any money payable to ECHD becomes overdue, or in ECHD’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 ECHD;

(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.

20.1 Without prejudice to any other remedies ECHD may have, if at any time the Customer is in breach of any obligation (including those relating to payment) under these terms and conditions ECHD may suspend or terminate the supply of Parts to the Customer. ECHD will not be liable to the Customer for any loss or damage the Customer suffers because ECHD has exercised its rights under this clause.

20.2 ECHD may cancel any contract to which these terms and conditions apply or cancel Delivery of Parts at any time before the Parts are delivered by giving written notice to the Customer. On giving such notice ECHD shall repay to the Customer any money paid by the Customer for the Parts. ECHD shall not be liable for any loss or damage whatsoever arising from such cancellation.

20.3 In the event that the Customer cancels Delivery of Parts the Customer shall be liable for any and all loss incurred (whether direct or indirect) by ECHD as a direct result of the cancellation (including, but not limited to, any loss of profits).

20.4 Cancellation of orders for Parts 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.

21.1 All emails, documents, images or other recorded information held or used by ECHD is Personal Information as defined and referred to in clause 21.3 and therefore considered confidential. ECHD acknowledges its obligation in relation to the handling, use, disclosure and processing of Personal Information pursuant to the Privacy Act 1993 (“the Act”) including Part II of the OECD Guidelines and as set out in Schedule 5A of the Act and any statutory requirements where relevant in a European Economic Area “EEA” under the EU Data Privacy Laws (including the General Data Protection Regulation “GDPR”) (collectively, “EU Data Privacy Laws”). ECHD acknowledges that in the event it becomes aware of any data breaches and/or disclosure of the Customer’s Personal Information, held by ECHD that may result in serious harm to the Customer, ECHD will notify the Customer in accordance with the Act and/or the GDPR. Any release of such personal information must be in accordance with the Act and the GDPR (where relevant) and must be approved by the Customer by written consent, unless subject to an operation of law.

21.2 Notwithstanding clause 21.1, privacy limitations will extend to ECHD in respect of Cookies where the Customer utilises ECHD’s website to make enquiries. ECHD 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 ECHD when ECHD sends an email to the Customer, so ECHD may collect and review that information (“collectively Personal Information”)

If the Customer consents to ECHD’s use of Cookies on ECHD’s website and later wishes to withdraw that consent, the Customer may manage and control ECHD’s privacy controls via the Customer’s web browser, including removing Cookies by deleting them from the browser history when exiting the site.

21.3 The Customer authorises ECHD or ECHD’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 ECHD from the Customer directly or obtained by ECHD 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.

21.4 Where the Customer is an individual the authorities under clause 21.3 are authorities or consents for the purposes of the Privacy Act 1993.

21.5 The Customer shall have the right to request (by e-mail) from ECHD, a copy of the Personal Information about the Customer retained by ECHD and the right to request that ECHD correct any incorrect Personal Information.

21.6 ECHD 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.

21.7 The Customer can make a privacy complaint by contacting ECHD via e-mail. ECHD 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 Information Commissioner at http://www.privacy.org.nz/comply/comptop.html.

22.1 Any written notice given under this Contract shall be deemed to have been given and received:

(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 this Contract;

(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.

22.2 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.

23.1 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 (“Trust”) then whether or not ECHD may have notice of the Trust, the Customer covenants with ECHD as follows:

(a) the Contract extends to all rights of indemnity which the Customer now or subsequently may have against the Trust and the trust fund;

(b) the Customer has full and complete power and authority under the Trust 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 or 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 indemnity;

(c) the Customer will not without consent in writing of ECHD (ECHD 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 property.

24.1 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.

24.2 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 Tauranga Courts, New Zealand.

24.3 Except to the extent permitted by law “CGA”, ECHD shall be under no liability whatsoever to the Customer for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by ECHD of these terms and conditions (alternatively ECHD’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Parts).

24.4 ECHD may licence and/or assign all or any part of its rights and/or obligations under this Contract without the Customer’s consent.

24.5 The Customer cannot licence or assign without the written approval of ECHD.

24.6 ECHD 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 ECHD’s sub-contractors without the authority of ECHD.

24.7 The Customer agrees that ECHD 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 ECHD to provide Parts to the Customer.

24.8 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.

24.9 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.