Terms & Conditions
Conditions of Use
If you intend to transact through this website (i.e. purchase Goods and/or Services) then you warrant that you are at least 18 years of age, that you have the power to enter into this agreement and you acknowledge that this agreement creates binding and valid legal obligations upon you.
If you do not agree with or do not wish to accept the Terms and Conditions relating to this website, then please do not use this website. You are also advised that failure to accept our Terms and Conditions may result in your inability to access certain sections of this website.
Conditions of Sale NZ
1.1 “Seller” means Machineryhouse Pty Ltd T/A Machineryhouse, its successors and assigns or any person acting on behalf of and with the authority of Machineryhouse Pty Ltd T/A Machineryhouse.
1.2 “Buyer” means the person/s buying the Goods as specified in any invoice, document or order, and if there is more than one Buyer is a reference to each Buyer jointly and severally.
1.3 “Goods” means all Goods or Services supplied by the Seller to the Buyer at the Buyer’s request from time to time (where the context so permits the terms ‘Goods’ or ‘Services’ shall be interchangeable for the other).
1.4 “Installation” shall mean the levelling and positioning of the Goods, removal of travel clamps, aligning of any auxiliary equipment, and checking and adjusting where necessary all lubricant levels but DOES NOT include the provision of a level site of sufficient strength capability for the Goods, or the connection of all necessary air and power supplies to the machine, the provision of which is the sole responsibility of the Buyer.
1.5 “Price” means the Price payable for the Goods as agreed between the Seller and the Buyer in accordance with clause 5 below.
2.1 The Buyer is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Buyer places an order for or accepts delivery of the Goods.
2.2 These terms and conditions may only be amended with the Seller’s consent in writing and shall prevail to the extent of any inconsistency with any other document, purchase order or agreement between the Buyer and the Seller.
2.3 None of the Seller’s agents or representatives are authorised to make any representations, statements, conditions or agreements not expressed by the manager of the Seller in writing nor is the Seller bound by any such unauthorised statements.
2.4 The Buyer:
(a) agrees that it does not rely on the skill or judgment of the Seller in relation to the suitability of the Goods for any particular purpose unless it has indicated that purpose in writing to the Seller and the Seller has acknowledged in writing that the Goods will be fit for that purpose
(b) acknowledges that it has chosen the Goods relying on its own skill, expertise and experience.
(c) acknowledges that delivery lead times advised by the Seller are indicative only and shall not be binding on the Seller.
3. Change in Control
3.1 The Buyer shall give the Seller not less than fourteen (14) days prior written notice of any proposed change of ownership of the Buyer and/or any other change in the Buyer’s details (including but not limited to, changes in the Buyer’s name, address, contact phone or fax number/s, or business practice). The Buyer shall be liable for any loss incurred by the Seller as a result of the Buyer’s failure to comply with this clause.
4.1 Unless otherwise agreed in writing, any Goods supplied by the Seller to the Buyer shall be deemed to operate satisfactorily if the Goods operate in accordance with the relevant specifications of the manufacturer of the Goods.
4.2 The Buyer acknowledges that the ability of the Goods to operate satisfactorily in accordance with their specifications is dependent upon the proper layout and maintenance of the Goods and all parts thereof, proper material control and other factors:
(a) for which the Buyer is responsible
(b) which are beyond the control of the Seller.
4.3 Unless otherwise agreed in writing, the Goods shall be supplied to the manufacturer’s standard finish and dimensions. Neither the Seller nor the manufacturer accepts any responsibility or liability whatsoever should the colour, designs or dimensions of the Goods vary from the colour, designs or dimensions contained in any product catalogue, brochure or other promotional or information document in respect of the Goods.
5. Price and Payment
5.1 At the Seller’s sole discretion the Price shall be either:
(a) as indicated on any invoice provided by the Seller to the Buyer
(b) the Price as at the date of delivery of the Goods according to the Seller’s current price list
(c) the Seller’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 The Seller reserves the right to change the Price if a variation to the Seller’s quotation is requested. Any variation from the plan of scheduled works or specifications will be charged for on the basis of the Seller’s quotation and will be shown as variations on the invoice. Payment for all variations must be made in full at their time of completion. The Seller reserves the right to charge the Buyer for any fluctuation in foreign exchange currency rates resulting in an increase in the cost to the Seller of obtaining the Goods or delivering the Goods to the Buyer. The Buyer acknowledges that any sum charged by the Seller in respect of such fluctuation shall be based upon the entire Purchase Price, irrespective of whether a deposit has been paid by the Buyer.
5.3 At the Seller’s sole discretion a deposit may be required, the amount, or percentage of the Price, will be stipulated and shall become immediately due and payable.
5.4 Time for payment for the Goods being of the essence, the Price will be payable by the Buyer on the date/s determined by the Seller, which may be:
(a) on delivery of the Goods
(b) before delivery of the Goods
(c) by way of instalments/progress payments in accordance with the Seller’s payment schedule
(d) thirty (30) days following the end of the month in which a statement is posted to the Buyer’s address or address for notices
(e) the date specified on any invoice or other form as being the date for payment
(f) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Buyer by the Seller.
5.5 Payment may be made by cash, cheque, bank cheque, electronic/on-line banking, credit card (plus a surcharge of up to one percent (1%) of the Price), or by any other method as agreed to between the Buyer and the Seller.
5.6 Unless otherwise stated the Price does not include GST. In addition to the Price the Buyer must pay to the Seller an amount equal to any GST the Seller must pay for any supply by the Seller under this or any other agreement for the sale of the Goods. The Buyer must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Buyer pays the Price. In addition the Buyer 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. Delivery of Goods
6.1 At the Seller’s sole discretion delivery of the Goods shall take place when the Buyer takes possession of the Goods at the Buyer’s nominated address (in the event that the Goods are delivered by the Seller or the Seller’s nominated carrier). The Buyer shall make all arrangements necessary to take
delivery of the Goods whenever they are tendered for delivery. In the event that the Buyer is unable to take delivery of the Goods as arranged then the Seller shall be entitled to charge a reasonable fee for redelivery.
6.2 Unless otherwise agreed in writing:
(a) the Seller shall arrange for transport of the Goods to the Buyer’s specified delivery point
(b) the Seller is entitled to charge a delivery fee for such transport. The delivery fee shall be due and payable by the Buyer on the date for payment of the Price
(c) the Buyer is responsible for unloading the Goods from the transport vehicle
(d) if no delivery point has been specified by the Buyer, the Buyer shall collect the Goods from the Seller’s premises within seven (7) days of the Seller notifying the Buyer that the Goods are ready for collection.
6.3 If the Seller notifies the Buyer that the Goods are ready for transport or collection and the Buyer requests the Seller to hold the Goods, or where clause 6.2(d) applies and the Buyer does not collect the Goods within seven (7) days of notification by the Seller that the Goods are ready for collection then:
(a) the Seller shall hold the Goods
(b) delivery shall be deemed to have occurred and the Goods shall be at the Buyer’s risk from the time of the Buyer’s request or failure to collect as per 6.2(d)
(c) the Seller shall be entitled to charge storage fees in respect of the Goods so stored. Storage fees shall be due and payable by the Buyer on the date for payment of the Price.
6.4 If the Seller has agreed in writing to install the Goods, then:
(a) the Seller shall arrange for the installation of the Goods
(b) the Seller is entitled to charge a fee for the installation. The installation fee shall be due and payable by the Buyer on the date for payment of the Price.
6.5 Delivery of the Goods to a third party nominated by the Buyer is deemed to be delivery to the Buyer for the purposes of this agreement.
6.6 The Seller may deliver the Goods by separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.
6.7 The Seller may extend the anticipated delivery date without consultation with the Buyer. Where such an extension occurs, the Seller shall notify the Buyer of the extension as soon thereafter as is reasonably practicable.
6.8 In the event of any delay or failure to deliver, arising from any circumstances including but not limited to a force majeure occurrence
(a) the Seller shall not be liable to any claims by the Buyer or for any loss, damage or expense suffered or incurred by the Buyer including consequential loss or damage whatsoever or howsoever arising out of that delay or failure
(b) the delay or failure shall not
(i) relieve the Buyer of its obligation to pay the Purchase Price
(ii) permit the Buyer to rescind the Contract and/or reject the Goods.
6.9 Any time or date given by the Seller to the Buyer is an estimate only. The Buyer must still accept delivery of the Goods even if late and the Seller will not be liable for any loss or damage incurred by the Buyer as a result of the delivery being late.
7.1 If the Seller retains ownership of the Goods nonetheless, all risk for the Goods passes to the Buyer on delivery.
7.2 Delivery of the Goods shall be deemed to occur and the Goods shall be at the Buyer’s risk, (subject to clause 6.3 above), and:
(a) in the case of transport to the Buyer’s specified delivery point, upon the commencement of the unloading of the Goods from the transport vehicle
(b) in the case of collection by the Buyer from the Seller’s premises, upon the commencement of the loading of the Goods onto the Buyer’s vehicle
(c) in the case of installation the risk in the goods passes to the Buyer upon installation.
7.3 If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Buyer, the Seller is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by the Seller is sufficient evidence of the Seller’s rights to receive the insurance proceeds without the need for any person dealing with the Seller to make further enquiries.
8.1 The Seller and the Buyer agree that ownership of the Goods shall not pass until:
(a) the Buyer has paid the Seller all amounts owing to the Seller
(b) the Buyer has met all of its other obligations to the Seller.
8.2 Receipt by the Seller 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.
8.3 It is further agreed that:
(a) until ownership of the Goods passes to the Buyer in accordance with clause 8.1 that the Buyer is only a bailee of the Goods and must return the Goods to the Seller on request.
(b) the Buyer holds the benefit of the Buyer’s insurance of the Goods on trust for the Seller and must pay to the Seller the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed.
(c) the Buyer 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 Buyer sells, disposes or parts with possession of the Goods then the Buyer must hold the proceeds of any such act on trust for the Seller and must pay or deliver the proceeds to the Seller on demand.
(d) the Buyer should not convert or process the Goods or intermix them with other goods but if the Buyer does so then the Buyer holds the resulting product on trust for the benefit of the Seller and must sell, dispose of or return the resulting product to the Seller as it so directs.
(e) the Buyer irrevocably authorises the Seller to enter any premises where the Seller believes the Goods are kept and recover possession of the Goods.
(f) the Seller may recover possession of any Goods in transit whether or not delivery has occurred.
(g) the Buyer 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 the Seller.
(h) the Seller may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Buyer.
9. Personal Property Securities Act 2009 (“PPSA”)
9.1 In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.
9.2 Upon assenting to these terms and conditions in writing the Buyer acknowledges and agrees that these terms and conditions constitute a security agreement for the purposes of the PPSA and creates a security interest in all Goods that have previously been supplied and that will be supplied in the future by the Seller to the Buyer.
9.3 The Buyer undertakes to:
(a) promptly sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which the Seller may reasonably require to
(i) register a financing statement or financing change statement in relation
to a security interest on the Personal Property Securities Register
(ii) register any other document required to be registered by the PPSA
(iii) correct a defect in a statement referred to in clause 9.3(a)(i) or 9.3(a)(ii)
(b) indemnify, and upon demand reimburse, the Seller for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register established by the PPSA or releasing any Goods charged thereby
(c) not register a financing change statement in respect of a security interest without the prior written consent of the Seller
(d) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods in favour of a third party without the prior written consent of the Seller
(e) immediately advise the Seller 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.
9.4 The Seller and the Buyer agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.
9.5 The Buyer waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
9.6 The Buyer waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
9.7 Unless otherwise agreed to in writing by the Seller, the Buyer waives their right to receive a verification statement in accordance with section 157 of the PPSA.
9.8 The Buyer must unconditionally ratify any actions taken by the Seller under clauses 9.3 to 9.5.
9.9 Subject to any express provisions to the contrary nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions the PPSA.
10. Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA)
10.1 The Buyer must inspect the Goods on delivery and must within seven (7) days of delivery notify the Seller in writing of any evident defect/damage, shortage in quantity, or failure to comply with the description or quote. The Buyer must notify any other alleged defect in the Goods as soon as reasonably possible after any such defect becomes evident. Upon such notification the Buyer must allow the Seller to inspect the Goods.
10.2 Under applicable State, Territory and Commonwealth Law (including, without limitation the CCA), certain statutory implied guarantees and warranties (including, without limitation the statutory guarantees under the CCA) may be implied into these terms and conditions (Non-Excluded Guarantees).
10.3 The Seller acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.
10.4 Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, the Seller makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Goods. The Seller’s liability in respect of these warranties is limited to the fullest extent permitted by law.
10.5 If the Buyer is a consumer within the meaning of the CCA, the Seller’s liability is limited to the extent permitted by section 64A of Schedule 2.
10.6 If the Seller is required to replace the Goods under this clause or the CCA, but is unable to do so, the Seller may refund any money the Buyer has paid for the Goods.
10.7 If the Buyer is not a consumer within the meaning of the CCA, the Seller’s liability for any defect or damage in the Goods is:
(a) limited to the value of any express warranty or warranty card provided to the Buyer by the Seller at the Seller’s sole discretion
(b) limited to any warranty to which the Seller is entitled, if the Seller did not manufacture the Goods
(c) otherwise negated absolutely.
10.8 Subject to this clause 10, returns will only be accepted provided that:
(a) the Buyer has complied with the provisions of clause 10.1
(b) the Seller has agreed that the Goods are defective
(c) the Goods are returned within a reasonable time at the Buyer’s cost (if that cost is not significant)
(d) the Goods are returned in as close a condition to that in which they were delivered as is possible.
10.9 Notwithstanding clauses 10.1 to 10.8 but subject to the CCA, the Seller shall not be liable for any defect or damage which may be caused or partly caused by or arise as a result of:
(a) the Buyer failing to properly maintain or store any Goods
(b) the Buyer using the Goods for any purpose other than that for which they were designed
(c) the Buyer continuing the use of any Goods after any defect became apparent or should have become apparent to a reasonably prudent operator or user
(d) the Buyer failing to follow any instructions or guidelines provided by the Seller
(e) fair wear and tear, any accident, or act of God.
10.10 In the case of second hand Goods, unless the Buyer is a consumer under the CCA, the Buyer acknowledges that it has had full opportunity to inspect the second hand Goods prior to delivery and accepts them with all faults and that to the extent permitted by law no warranty is given by the Seller as to the quality or suitability for any purpose and any implied warranty, statutory or otherwise, is expressly excluded. The Buyer acknowledges and agrees that the Seller has agreed to provide the Buyer with the second hand Goods and calculated the Price of the second hand Goods in reliance of this clause 10.10.
10.11 The Seller may in its absolute discretion accept non-defective Goods for return in which case the Seller may require the Buyer to pay handling fees of up to fifteen percent (15%) of the value of the returned Goods plus any freight costs.
10.12 Notwithstanding anything contained in this clause if the Seller is required by a law to accept a return then the Seller will only accept a return on the conditions imposed by that law.
11. Intellectual Property
11.1 Where the Seller has designed, drawn or developed Goods for the Buyer, then the copyright in any designs and drawings and documents shall remain the property of the Seller.
12. Default and Consequences of Default
12.1 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 the Seller’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
12.2 If the Buyer owes the Seller any money the Buyer shall indemnify the Seller from and against all costs and disbursements incurred by the Seller in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, the Seller’s collection agency costs, and bank dishonour fees).
12.3 Without prejudice to any other remedies the Seller may have, if at any time