Download our Terms & Conditions of Trade PDF

 

All goods & services provided by Summit Hydraulics’ will be governed by our Terms of trade detailed below.

  1. Definitions
    1. “Summit” means Summit Hydraulic Solutions Ltd, its successors and assigns or any person
      acting on behalf of and with the authority of Summit Hydraulic Solutions Ltd.
    2. “Client” means the person/s buying the Parts (and/or hiring Equipment) as specified in any
      invoice, document or order, and if there is more than one Client is a reference to each Client
      jointly and severally.
    3. “Parts” means all Parts or Services supplied by Summit to the Client at the Client’s request
      from time to time (where the context so permits the terms ‘Parts’ or ‘Services’ shall be
      interchangeable for the other).
    4. “Equipment” means all Equipment including any accessories supplied on hire by Summit to
      the Client (and where the context so permits shall include any supply of Services). The
      Equipment shall be as described on the invoices, quotation, authority to hire, or any other
      work authorisation form provided by Summit to the Client.
    5. “Price” means the Price payable for the Parts/Equipment hire as agreed between Summit
      and the Client in accordance with clause 4 below.
  2. Acceptance
    1. The Client is taken to have exclusively accepted and is immediately bound, jointly and
      severally, by these terms and conditions if the Client places an order for or accepts delivery
      of the Parts/Equipment.
    2. These terms and conditions may only be amended with Summit’s consent in writing and
      shall prevail to the extent of any inconsistency with any other document or agreement
      between the Client and Summit.
    3. If during the provisions of the Services it is discovered that the Services required shall
      exceed the original estimated and/or quoted cost to which the Client instructs Summit to
      cease all Services, then the Client acknowledges and agrees to indemnify Summit all costs
      incurred in reassembling the equipment (including, but not limited to, any new parts required
      (as some components when removed during the dismantling process often prove not
      reusable) for the reassembly.
    4. The Client acknowledges and accepts that 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, Summit
      reserves the right to vary the Price with alternative Parts as per clause 4.2. Summit also
      reserves the right to halt all Services until such time as Summit and the Client agree to such
      changes.
    5. In the event that Summit is to carry out on-site Services in remote areas only to discover
      upon arrival that the Client has not provided the correct information pertaining to the
      equipment for repair which then causes delay in the Services and the need for Summit to
      revisit the site with the appropriate Parts to complete the Services, then Summit reserves
      the right to charge an additional fee for travel in accordance with clause 4.2.
  3. Change in Control
    1. The Client shall give Summit not less than fourteen (14) days prior written notice of any
      proposed change of ownership of the Client and/or any other change in the Client’s details
      (including but not limited to, changes in the Client’s name, address, contact phone or fax
      number/s, or business practice). The Client shall be liable for any loss incurred by Summit
      as a result of the Client’s failure to comply with this clause.
  4. Price and Payment
    1. At Summit’s sole discretion the Price shall be either:
      (a) as indicated on any invoice provided by Summit to the Client; or
      (b) the Price as at the date of delivery of the Parts/Equipment according to Summit’s
      current price list; or
      (c) Summit’s estimated Price (subject to clause 4.2) which shall not be deemed binding
      upon Summit as the actual Price can only be determined upon completion of the
      Services. Summit undertakes to keep the Client informed should the actual Price look
      likely to exceed the original estimate;
      (d) Summit’s quoted price (subject to clause 4.2) which will be valid for the period stated in
      the quotation or otherwise for a period of thirty (30) days.
    2. Summit reserves the right to change the Price if a variation to Summit’s quotation is
      requested. Any variation from the plan of scheduled Services or specifications (including,
      but not limited to, for additional Services required due to difficulties beyond the control of
      Summit, such as added issues that arise, once the Services have commenced than was
      originally indicated and/or inaccurate information provided by the Client or as a direct result
      in increases to Summit in the cost of materials and labour) will be charged for on the basis
      of Summit’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.
    3. At Summit’s sole discretion a non-refundable deposit shall be required with the value being
      a specified amount or percentage of the Price being agreed to prior to an assessment of a
      repair taking place or may be required prior to Parts being procured.
    4. Where Summit is requested to store the Client’s Parts or vehicle, or where Parts or vehicles
      are not collected within twenty-four hours of advice to the Client that they are ready for
      collection, then Summit (at its sole discretion) may charge a reasonable fee for storage.
    5. Time for payment for the Parts/Equipment being of the essence, the Price will be payable by
      the Client on the date/s determined by Summit, which may be:
      (a) on delivery of the Parts/Equipment;
      (b) prior to the release or dispatch of Parts;
      (c) by way of instalments/progress payments in accordance with Summit’s payment
      schedule;
      (d) for certain approved Client’s, due twenty (20) days following the end of the month in
      which a statement is posted to the Client’s address or address for notices;
      (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 Client by Summit.
    6. Payment may be made by cash, cheque, bank cheque, electronic/on-line banking, by any
      other method as agreed to between the Client and Summit.
    7. Unless otherwise stated the Price does not include GST. In addition to the Price the Client
      must pay to Summit an amount equal to any GST Summit must pay for any supply by
      Summit under this or any other agreement for the sale of the Parts/hire of the Equipment.
      The Client must pay GST, without deduction or set off of any other amounts, at the same
      time and on the same basis as the Client pays the Price. In addition the Client 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.
  5. Delivery of Parts/Equipment
    1. Delivery (“Delivery”) of the Parts/Equipment is taken to occur at the time that:
      (a) the Client or the Client’s nominated carrier takes possession of the Parts/Equipment at
      Summit’s address; or
      (b) Summit (or Summit’s nominated carrier) delivers the Parts/Equipment to the Client’s
      nominated address even if the Client is not present at the address.
    2. At Summit’s sole discretion the cost of delivery is either included in the Price or is in addition
      to the Price.
    3. The Client must take delivery by receipt or collection of the Parts/Equipment whenever
      either is tendered for delivery. In the event that the Client is unable to take delivery of the
      Parts/Equipment as arranged then Summit shall be entitled to charge a reasonable fee for
      redelivery of the Parts/Equipment and/or the storage of the Parts.
    4. Summit may deliver the Parts/Equipment in separate instalments. Each separate instalment
      shall be invoiced and paid in accordance with the provisions in these terms and conditions.
    5. Any time or date given by Summit to the Client is an estimate only. The Client must still
      accept delivery of the Parts/Equipment even if late and Summit will not be liable for any loss
      or damage incurred by the Client as a result of the delivery being late.
  6. Risk
    1. Risk of damage to or loss of the Parts passes to the Client on Delivery and the Client must
      insure the Parts on or before Delivery.
    2. If any of the Parts are damaged or destroyed following delivery but prior to ownership
      passing to the Client, Summit is entitled to receive all insurance proceeds payable for the
      Parts. The production of these terms and conditions by Summit is sufficient evidence of
      Summit’s rights to receive the insurance proceeds without the need for any person dealing
      with Summit to make further enquiries.
    3. If the Client requests Summit to leave Parts outside Summit’s premises for collection or to
      deliver the Parts to an unattended location then such Parts shall be left at the Client’s sole
      risk.
  7. Access
    1. The Client shall ensure that Summit has clear and free access to at all times to enable them
      to undertake the Services where Summit is instructed to carry out the Services on-site.
      Summit 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 Summit.
    2. It is the responsibility of the Client to ensure that access is suitable to accept the weight of
      laden trucks that may be deemed necessary by Summit. The Client agrees to indemnify
      Summit against all costs incurred by Summit in recovering such vehicles in the event they
      become bogged or otherwise immovable.
  8. Title To Parts
    1. Summit and the Client agree that ownership of the Parts shall not pass until:
      (a) the Client has paid Summit all amounts owing to Summit; and
      (b) the Client has met all of its other obligations to Summit.
    2. Receipt by Summit 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.
    3. It is further agreed that:
      (a) until ownership of the Parts passes to the Client in accordance with clause 8.1 that the
      Client is only a bailee of the Parts and must return the Parts to Summit on request.
      (b) the Client holds the benefit of the Client’s insurance of the Parts on trust for Summit
      and must pay to Summit the proceeds of any insurance in the event of the Parts being
      lost, damaged or destroyed.
      (c) the Client 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 Client sells,
      disposes or parts with possession of the Parts then the Client must hold the proceeds
      of any such act on trust for Summit and must pay or deliver the proceeds to Summit on
      demand.
      (d) the Client should not convert or process the Parts or intermix them with other Parts but
      if the Client does so then the Client holds the resulting product on trust for the benefit of
      Summit and must sell, dispose of or return the resulting product to Summit as it so
      directs.
      (e) the Client irrevocably authorises Summit to enter any premises where Summit believes
      the Parts are kept and recover possession of the Parts.
      (f) Summit may recover possession of any Parts in transit whether or not delivery has
      occurred.
      (g) the Client 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 Summit.
      (h) Summit may commence proceedings to recover the Price of the Parts sold
      notwithstanding that ownership of the Parts has not passed to the Client.
  9. Personal Property Securities Act 1999 (“PPSA”)
    1. Upon assenting to these terms and conditions in writing the Client 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/Equipment previously supplied by Summit to the
      Client (if any) and all Parts/Equipment that will be supplied in the future by Summit to
      the Client.
    2. The Client 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 Summit may reasonably
      require to register a financing statement or financing change statement on the Personal
      Property Securities Register;
      (b) indemnify, and upon demand reimburse, Summit for all expenses incurred in
      registering a financing statement or financing change statement on the Personal
      Property Securities Register or releasing any Parts/Equipment charged thereby;
      (c) not register a financing change statement or a change demand without the prior written
      consent of Summit; and
      (d) immediately advise Summit of any material change in its business practices of selling
      Parts which would result in a change in the nature of proceeds derived from such sales.
    3. Summit and the Client agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA
      shall apply to these terms and conditions.
    4. The Client waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129,
      131 and 132 of the PPSA.
    5. Unless otherwise agreed to in writing by Summit, the Client waives its right to receive a
      verification statement in accordance with section 148 of the PPSA.
    6. The Client shall unconditionally ratify any actions taken by Summit under clauses 9.1 to 9.5.
  10. Security and Charge
    1. In consideration of Summit agreeing to supply the Parts/Equipment, the Client 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 Client either now or in the future, to secure the
      performance by the Client of its obligations under these terms and conditions (including, but
      not limited to, the payment of any money).
    2. The Client indemnifies Summit from and against all Summit’s costs and disbursements
      including legal costs on a solicitor and own client basis incurred in exercising Summit’s
      rights under this clause.
    3. The Client irrevocably appoints Summit and each director of Summit as the Client’s true and
      lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause
      10 including, but not limited to, signing any document on the Client’s behalf.
  11. Client’s Disclaimer
    1. The Client hereby disclaims any right to rescind, or cancel any contract with Summit or to
      sue for damages or to claim restitution arising out of any inadvertent misrepresentation
      made to the Client by Summit and the Client acknowledges that the Parts are bought relying
      solely upon the Client’s skill and judgment.
  12. Defects
    1. The Client shall inspect the Parts/Equipment on delivery and shall within seven (7) days of
      delivery (time being of the essence) notify Summit of any alleged defect, shortage in
      quantity, damage or failure to comply with the description or quote. The Client shall afford
      Summit an opportunity to inspect the Parts/Equipment within a reasonable time following
      delivery if the Client believes the Parts are defective in any way. If the Client shall fail to
      comply with these provisions the Parts/Equipment shall be presumed to be free from any
      defect or damage. For defective Parts/Equipment, which Summit has agreed in writing that
      the Client is entitled to reject, Summit’s liability is limited to either (at Summit’s discretion)
      replacing the Parts/Equipment or repairing the Parts/Equipment.
    2. Equipment will not be accepted for return for any reason other than those specified in
      clause 12.1 above or normal termination of Equipment hire in accordance with the full terms
      and conditions herein.
  13. Returns Of Parts
    1. Returns of Parts will only be accepted provided that:
      (a) the Client has complied with the provisions of clause 12.1; and
      (b) Summit has agreed in writing to accept the return of the Parts; and
      (c) the Parts are returned at the Client’s cost within seven (7) days of the delivery date;
      and
      (d) Summit will not be liable for Parts which have not been stored or used in a proper
      manner; and
      (e) 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.
    2. Summit 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.
    3. Non-stocklist items or Parts made to the Client’s specifications are under no circumstances
      acceptable for credit or return.
  14. Warranty
    1. Subject to the conditions of warranty set out in Clause 14.2 Summit warrants that if any
      defect in any workmanship of Summit becomes apparent and is reported to Summit within
      twelve (12) months of the date of delivery (time being of the essence) then Summit will
      either (at Summit’s sole discretion) replace or remedy the workmanship.
    2. The conditions applicable to the warranty given by Clause 14.1 are:
      (a) the warranty shall not cover any defect or damage which may be caused or partly
      caused by or arise through:
      (i) failure on the part of the Client to properly maintain any Parts; or
      (ii) failure on the part of the Client to follow any instructions or guidelines provided by
      Summit; or
      (iii) any use of any Parts otherwise than for any application specified on a quote or
      order form; or
      (iv) the continued use of any Parts after any defect becomes apparent or would have
      become apparent to a reasonably prudent operator or user; or
      (v) fair wear and tear, any accident or act of God.
      (b) the warranty shall cease and Summit shall thereafter in no circumstances be liable
      under the terms of the warranty if the workmanship is repaired, altered or overhauled
      without Summit’s consent.
      (c) in respect of all claims Summit shall not be liable to compensate the Client for any
      delay in either replacing or remedying the workmanship or in properly assessing the
      Client’s claim.
    3. The Client acknowledges that in order to replace and/or repair defective Parts, it may be
      necessary to dismantle and/or reassemble equipment. In the event that this is necessary,
      the Client accepts that all costs incurred (including, but not limited to, fluids, oils, seals,
      travel and/or labour, unless expressly covered in Summit’s warranty documentation) in so
      doing shall be the Client’s responsibility and that Summit’s liability shall be limited to the
      repair or replacement of the defective Parts of the equipment.
    4. For Parts not manufactured by Summit, the warranty shall be the current warranty provided
      by the manufacturer of the Parts. Summit 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.
  15. Consumer Guarantees Act 1993
    1. If the Client is acquiring Parts for the purposes of a trade or business, the Client
      acknowledges that the provisions of the Consumer Guarantees Act 1993 do not apply to the
      supply of Parts by Summit to the Client.
  16. Default and Consequences of Default
    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 Summit’s sole discretion such interest shall compound monthly at such a rate) after
      as well as before any judgment.
    2. If the Client owes Summit any money the Client shall indemnify Summit from and against all
      costs and disbursements incurred by Summit in recovering the debt (including but not
      limited to internal administration fees, legal costs on a solicitor and own client basis,
      Summit’s collection agency costs, and bank dishonour fees).
    3. Without prejudice to any other remedies Summit may have, if at any time the Client is in
      breach of any obligation (including those relating to payment) under these terms and
      conditions Summit may suspend or terminate the supply of Parts/Equipment to the Client.
      Summit will not be liable to the Client for any loss or damage the Client suffers because
      Summit has exercised its rights under this clause.
    4. Without prejudice to Summit’s other remedies at law Summit shall be entitled to cancel all or
      any part of any order of the Client which remains unfulfilled and all amounts owing to
      Summit shall, whether or not due for payment, become immediately payable if:
      (a) any money payable to Summit becomes overdue, or in Summit’s opinion the Client will
      be unable to make a payment when it falls due;
      (b) the Client 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
      (c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed
      in respect of the Client or any asset of the Client.
  17. Compliance with Laws
    1. The Client and Summit 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.
  18. Cancellation
    1. Summit may cancel any contract to which these terms and conditions apply or cancel
      delivery of Parts/Equipment at any time before the Parts/Equipment are due to be delivered
      by giving written notice to the Client. On giving such notice Summit shall repay to the Client
      any money paid by the Client for the Parts/Equipment. Summit shall not be liable for any
      loss or damage whatsoever arising from such cancellation.
    2. In the event that the Client cancels delivery of the Parts/Equipment the Client shall be liable
      for any and all loss incurred (whether direct or indirect) by Summit as a direct result of the
      cancellation (including, but not limited to, any loss of profits).
    3. Cancellation of orders for Parts made to the Client’s specifications, or for non-stocklist
      items, will definitely not be accepted once production has commenced, or an order has
      been placed.
  19. Privacy Act 1993
    1. The Client authorises Summit or Summit’s agent to:
      (a) access, collect, retain and use any information about the Client;
      (i) (including any overdue fines balance information held by the Ministry of Justice) for
      the purpose of assessing the Client’s creditworthiness; or
      (ii) for the purpose of marketing products and services to the Client.
      (b) disclose information about the Client, whether collected by Summit from the Client
      directly or obtained by Summit 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 Client.
    2. Where the Client is an individual the authorities under clause 19.1 are authorities or
      consents for the purposes of the Privacy Act 1993.
    3. The Client shall have the right to request Summit for a copy of the information about the
      Client retained by Summit and the right to request Summit to correct any incorrect
      information about the Client held by Summit.
  20. Unpaid Seller’s Rights
    1. Where the Client has left any item with Summit for repair, modification, exchange or for
      Summit to perform any other service in relation to the item and Summit has not received or
      been tendered the whole of any moneys owing to it by the Client, Summit shall have, until
      all moneys owing to Summit are paid:
      (a) a lien on the item; and
      (b) the right to retain or sell the item after a period of one (1) calendar month, such sale to
      be undertaken in accordance with any legislation applicable to the sale or disposal of
      uncollected Parts.
    2. The lien of Summit shall continue despite the commencement of proceedings, or judgment
      for any moneys owing to Summit having been obtained against the Client.
    3. Equipment Hire
    4. Equipment shall at all times remain the property of Summit and is returnable on demand by
      Summit. In the event that Equipment is not returned to Summit in the condition in which it
      was delivered Summit retains the right to charge the Client the full cost of repairing the
      Equipment. In the event that Equipment is not returned at all Summit shall have right to
      charge the Client the full cost of replacing the Equipment.
    5. The Client shall:
      (a) keep the Equipment in their own possession and control and shall not assign the
      benefit of the Equipment nor be entitled to a lien over the Equipment.
      (b) not alter or make any additions to the Equipment including but without limitation
      altering, make any additions to, defacing or erasing any identifying mark, plate or
      number on or in the Equipment or in any other manner interfere with the Equipment.
      (c) keep the Equipment, complete with all parts and accessories, clean and in good order
      as delivered, and shall comply with any maintenance schedule as advised by Summit
      to the Client.
    6. The Client accepts full responsibility for the safekeeping of the Equipment and the Client
      agrees to insure, or self insure, Summit’s interest in the Equipment and agrees to indemnify
      Summit against physical loss or damage including, but not limited to, the perils of accident,
      fire, theft and burglary and all other usual risks and will effect adequate Public Liability
      Insurance covering any loss, damage or injury to property or persons arising out of the use
      of the Equipment. Further the Client will not use the Equipment nor permit it to be used in
      such a manner as would permit an insurer to decline any claim.
  21. General
    1. The failure by Summit to enforce any provision of these terms and conditions shall not be
      treated as a waiver of that provision, nor shall it affect Summit’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.
    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 Courts of Rotorua.
    3. Summit shall be under no liability whatsoever to the Client for any indirect and/or
      consequential loss and/or expense (including loss of profit) suffered by the Client arising out
      of a breach by Summit of these terms and conditions (alternatively Summit’s liability shall be
      limited to damages which under no circumstances shall exceed the Price of the
      Parts/Equipment hire).
    4. The Client shall not be entitled to set off against, or deduct from the Price, any sums owed
      or claimed to be owed to the Client by Summit nor to withhold payment of any invoice
      because part of that invoice is in dispute.
    5. Summit may license or sub-contract all or any part of its rights and obligations without the
      Client’s consent.
    6. The Client agrees that Summit may amend these terms and conditions at any time. If
      Summit makes a change to these terms and conditions, then that change will take effect
      from the date on which Summit notifies the Client of such change. The Client will be taken
      to have accepted such changes if the Client makes a further request for Summit to provide
      Parts/Equipment to the Client.
    7. 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.
    8. The Client warrants that it has the power to enter into this agreement and has obtained all
      necessary authorisations to allow it to do so, it is not insolvent and that this agreement
      creates binding and valid legal obligations on it.