1. 1.         Definitions

1.1       “PS” means Propeller Services NZ (2011) Limited T/A Propeller Services, its successors and assigns or any person acting on behalf of and with the authority of Propeller Services NZ (2011) Limited T/A Propeller Services.

1.2       “Client” means the person/s buying the Goods (and/or trialling 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.

1.3       “Goods” means all Goods or Services supplied by PS to the Client at the Client’s request from time to time (where the context so permits the terms ‘Goods’ or ‘Services’ shall be interchangeable for the other).

1.4       “Equipment” means all Equipment including any accessories supplied on trial by PS 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, trial form or any other work authorisation form provided by PS to the Client.

1.5       “Price” means the Price payable for the Goods/Equipment as agreed between PS and the Client in accordance with clause 9 below.

 

  1. 2.         Acceptance

2.1       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 Goods/Equipment.

2.2       These terms and conditions may only be amended with PS’ consent in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the Client and PS.

2.3       These terms and conditions are meant to be read in conjunction with the Terms and Conditions posted on PS’ website. If there are any inconsistencies between the two documents then the terms and conditions contained in this document shall prevail.

2.4       Before accepting Goods/Equipment for trial, the Client agrees to accurately complete and sign the Credit Card Authorisation Form, the contents of which shall form part of this agreement, thereby, consenting to PS, that in the event that the Client becomes in default of payment for any reason, the failure to return Goods on trial or return of damaged Goods on trial, then PS reserves the right to automatically debit the Client’s credit card.

2.5       Where PS has provided Goods (including, but not limited to propellers or other components) for trial, and subsequently the items are not returned within the thirty (30) day trial period or the Goods are returned damaged, PS shall reserve the right to charge the Client’s credit card as per clause 2.4.

 

  1. 3.         Credit Card Information

3.1      PS will:

(a)  keep the Client’s personal details, including credit card details for only as long as is deemed necessary by PS;

(b) not disclose the Client’s credit card details to any third party;

(c)  not unnecessarily disclose any of the Client’s personal information, except is accordance with the Privacy Act (clause 24) or where required by law.

3.2      The Client expressly agrees that, if pursuant to this agreement, there are:

(a)  any unpaid charges;

(b) other amounts due and outstanding by the Client;

(c)  any Goods (or any part of them) supplied on trial that are lost or damaged;

(d) any other additional charges are due from the Client which were not known at the time of the return of the Goods,

  1. 4.         PS is entitled to immediately charge the Client’s nominated credit card for these amounts, and is irrevocably authorised to complete any documentation and take any action to recover from the credit card issuer any and all amounts which may be due by the Client pursuant to the terms of this agreement.

 

  1. 5.         Authorised Representatives

5.1       Unless otherwise limited as per clause 5.2 the Client agrees that should the Client introduce any third party to PS as the Client’s duly authorised representative, that once introduced that person shall have the full authority of the Client to order any Goods or Services on the Client’s behalf and/or to request any variation to the Services on the Client’s behalf (such authority to continue until all requested Services have been completed or the Client otherwise notifies PS in writing that said person is no longer the Client’s duly authorised representative).

5.2       In the event that the Client’s duly authorised representative as per clause 5.1 is to have only limited authority to act on the Client’s behalf then the Client must specifically and clearly advise PS in writing of the parameters of the limited authority granted to their representative.

5.3       The Client specifically acknowledges and accepts that they will be solely liable to PS for all additional costs incurred by PS (including PS’ profit margin) in providing any Goods, Services or variation/s requested by the Client’s duly authorised representative (subject always to the limitations imposed under clause 5.2 (if any)).

 

  1. 6.         Change in Control

6.1       The Client shall give PS 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 PS as a result of the Client’s failure to comply with this clause.

 

 

 

  1. 7.         Electronic Transactions Act 2002

7.1       Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 22 of the Electronic Transactions Act 2002 or any other applicable provisions of that Act or any Regulations referred to in that Act.

 

  1. 8.         Online Ordering

8.1       The Client acknowledges and agrees that:

(a)  PS does not guarantee the websites performance or availability of any of its Goods; and

(b) on-line ordering may be unavailable from time to time for regularly scheduled maintenance and/or upgrades; and

(c)  there are inherent hazards in electronic distribution and as such PS cannot warrant against delays or errors in transmitting data between the customer and PS including orders, and you agree that to the maximum extent permitted by law, PS will not be liable for any losses which the Client suffers as a result of online-ordering not being available or for delays or errors in transmitting orders.

8.2       PS reserve the right to terminate your order if it learns that you have provided false or misleading information, interfered with other users or the administration of PS’ Services, or violated these terms and conditions.

 

  1. 9.         Price and Payment

9.1       At PS’ sole discretion the Price shall be either:

(a)  as indicated on any invoice provided by PS to the Client; or

(b) the Price as at the date of delivery of the Goods/Equipment according to PS’ current price list; or

(c)  PS’ quoted price (subject to clause 9.2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.

9.2       The Seller reserves the right to change the Price:

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

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

(c)  in the event of increases to the Seller in the cost of labour or materials (including but not limited to overseas transactions that may increase as a consequence of variations in foreign currency rates of exchange and/or international freight and insurance charges) which are beyond the Seller’s control.

9.3       At PS’ sole discretion a non-refundable deposit may be required and shall become due and payable on request.

9.4       Time for payment for the Goods/Equipment being of the essence, the Price will be payable by the Client on the date/s determined by PS, which may be:

(a)  on delivery of the Goods/Equipment;

(b) before delivery of the Goods/Equipment;

(c)  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;

(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 Client by PS.

9.5       Payment may be made by cash, cheque, bank cheque, electronic/on-line banking, credit card or by any other method as agreed to between the Client and PS.

9.6       Unless otherwise stated the Price does not include GST. In addition to the Price the Client must pay to PS an amount equal to any GST PS must pay for any supply by PS under this or any other agreement for the sale of the Goods. 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.

 

  1. 10.       Delivery of Goods/Equipment

10.1     Delivery (“Delivery”) of the Goods/Equipment is taken to occur at the time that:

(a)  the Client or the Client’s nominated carrier takes possession of the Goods/Equipment at PS’ address; or

(b) PS (or PS’ nominated carrier) delivers the Goods/Equipment to the Client’s nominated address even if the Client is not present at the address.

10.2     At PS’ sole discretion the cost of delivery is in addition to the Price.

10.3     The Client must take delivery by receipt or collection of the Goods/Equipment whenever either is tendered for delivery. In the event that the Client is unable to take delivery of the Goods/Equipment as arranged then PS shall be entitled to charge a reasonable fee for redelivery of the Goods/Equipment and/or the storage of the Goods.

10.4     PS may deliver the Goods/Equipment in separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.

10.5     Any time or date given by PS to the Client is an estimate only. The Client must still accept delivery of the Goods/Equipment even if late and PS will not be liable for any loss or damage incurred by the Client as a result of the delivery being late.

 

  1. 11.       Risk

11.1     Risk of damage to or loss of the Goods passes to the Client on Delivery and the Client must insure the Goods on or before Delivery.

11.2     If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Client, PS is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by PS is sufficient evidence of PS’ rights to receive the insurance proceeds without the need for any person dealing with PS to make further enquiries.

11.3     If the Client requests PS to leave Goods outside PS’ premises for collection or to deliver the Goods to an unattended location then such Goods shall be left at the Client’s sole risk.

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

11.5     Where the Client or the Client’s agent installs the Goods, PS accepts no responsibility for any injury or loss due to incorrect installation or improper use.

11.6     The Client accepts that Goods are supplied with the express understanding that they shall be installed, applied and/or maintained by suitably qualified and experienced technician. Failure to adhere to this clause may result in a warranty claim not being accepted.

 

  1. 12.       Accuracy of Client’s Plans and Measurements

12.1     PS shall be entitled to rely on the accuracy of any plans, specifications and other information provided by the Client. The Client acknowledges and agrees that in the event that any of this information provided by the Client is inaccurate, the Seller accepts no responsibility for any loss, damages, or costs however resulting from these inaccurate plans, specifications or other information.

 

  1. 13.       Specifications

13.1     The Client acknowledges that:

(a)  all descriptive specifications, illustrations, drawings, data, dimensions and ratings stated in PS’ fact sheets, price lists or advertising material, are approximate only and are given by way of identification only. The Client 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 PS;

(b) while PS may have provided information or figures to the Client regarding the performance of the Goods, the Client acknowledges that PS has given these in good faith, and are estimates based on industry estimates.

13.2     The Client shall be responsible for ensuring that the Goods ordered are suitable for their intended use.

13.3     PS reserves the right to substitute comparable Goods (or components of the Goods), and in all such cases PS will notify the Client in advance of any such substitution.

 

  1. 14.       Title To Goods

14.1     PS and the Client agree that ownership of the Goods shall not pass until:

(a)  the Client has paid PS all amounts owing to PS; and

(b) the Client has met all of its other obligations to PS.

14.2     Receipt by PS 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.

14.3     It is further agreed that:

(a)  until ownership of the Goods passes to the Client in accordance with clause 14.1 that the Client is only a bailee of the Goods and must return the Goods to PS on request.

(b) the Client holds the benefit of the Client’s insurance of the Goods on trust for PS and must pay to PS the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed. 

(c)  the Client 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 Client sells, disposes or parts with possession of the Goods then the Client must hold the proceeds of any such act on trust for PS and must pay or deliver the proceeds to PS on demand.

(d) the Client should not convert or process the Goods or intermix them with other goods but if the Client does so then the Client holds the resulting product on trust for the benefit of PS and must sell, dispose of or return the resulting product to PS as it so directs.

(e)  the Client irrevocably authorises PS to enter any premises where PS believes the Goods are kept and recover possession of the Goods.

(f)  PS may recover possession of any Goods in transit whether or not delivery has occurred.

(g) the Client 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 PS.

(h)  PS may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Client.

 

  1. 15.       Personal Property Securities Act 1999 (“PPSA”)

15.1     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 Goods/Equipment previously supplied by PS to the Client (if any) and all Goods/Equipment that will be supplied in the future by PS to the Client.

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

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

(c)  not register a financing change statement or a change demand without the prior written consent of PS; and

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

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

15.4     The Client waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA.

15.5     Unless otherwise agreed to in writing by PS, the Client waives its right to receive a verification statement in accordance with section 148 of the PPSA.

15.6     The Client shall unconditionally ratify any actions taken by PS under clauses 15.1 to 15.5.

 

  1. 16.       Security and Charge

16.1     In consideration of PS agreeing to supply the Goods/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).

16.2     The Client indemnifies PS from and against all PS’ costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising PS’ rights under this clause.

16.3     The Client irrevocably appoints PS and each director of PS as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 16 including, but not limited to, signing any document on the Client’s behalf.

 

  1. 17.       Client’s Disclaimer

17.1     The Client hereby disclaims any right to rescind, or cancel any contract with PS or to sue for damages or to claim restitution arising out of any inadvertent misrepresentation made to the Client by PS and the Client acknowledges that the Goods are bought relying solely upon the Client’s skill and judgment.

 

  1. 18.       Defects

18.1     The Client shall inspect the Goods/Equipment on delivery and shall within three (3) days of delivery (time being of the essence) notify PS of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Client shall afford PS an opportunity to inspect the Goods/Equipment within a reasonable time following delivery if the Client believes the Goods are defective in any way. If the Client shall fail to comply with these provisions the Goods/Equipment shall be presumed to be free from any defect or damage. For defective Goods/Equipment, which PS has agreed in writing that the Client is entitled to reject, PS’ liability is limited to either (at PS’ discretion) replacing the Goods/Equipment or repairing the Goods/Equipment.

 

  1. 19.       Returns Of Goods

19.1     Returns of Goods will only be accepted provided that:

(a)  the Client has complied with the provisions of clause 18.1; and

(b) PS has agreed in writing to accept the return of the Goods; and

(c)  the Goods are returned at the Client’s cost within seven (7) days of the delivery date; and

(d) PS will not be liable for Goods which have not been stored or used in a proper manner; and

(e)  the Goods 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.

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

19.3     Non-stocklist items or Goods made or ordered to the Client’s specifications are under no circumstances acceptable for credit or return.

 

  1. 20.       Warranty

20.1     For Goods not manufactured by PS, the warranty shall be the current warranty provided by the manufacturer of the Goods. PS shall not be bound by nor be responsible for any term, condition, representation or warranty other than that which is given by the manufacturer of the Goods.

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

 

 

 

  1. 21.       Consumer Guarantees Act 1993

21.1     If the Client is acquiring Goods 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 Goods by PS to the Client.

 

  1. 22.       Default and Consequences of Default

22.1     Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at PS’ sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.

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

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

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

(a)  any money payable to PS becomes overdue, or in PS’ 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.

 

  1. 23.       Cancellation

23.1     PS may cancel any contract to which these terms and conditions apply or cancel delivery of Goods/Equipment at any time before the Goods/Equipment are due to be delivered by giving written notice to the Client. On giving such notice PS shall repay to the Client any money paid by the Client for the Goods/Equipment. PS shall not be liable for any loss or damage whatsoever arising from such cancellation.

23.2     In the event that the Client cancels delivery of the Goods/Equipment the Client shall be liable for any and all loss incurred (whether direct or indirect) by PS as a direct result of the cancellation (including, but not limited to, any loss of profits).

23.3     Cancellation of orders for Goods 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.

 

  1. 24.       Privacy Act 1993

24.1     The Client authorises PS or PS’ 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 PS from the Client directly or obtained by PS 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.

24.2     Where the Client is an individual the authorities under clause 24.1 are authorities or consents for the purposes of the Privacy Act 1993.

24.3     The Client shall have the right to request PS for a copy of the information about the Client retained by PS and the right to request PS to correct any incorrect information about the Client held by PS.

 

  1. 25.       Unpaid Seller’s Rights

25.1     Where the Client has left any item with PS for repair, modification, exchange or for PS to perform any other service in relation to the item and PS has not received or been tendered the whole of any monies owing to it by the Client, PS shall have, until all monies owing to PS are paid:

(a)  a lien on the item; and

(b) the right to retain or sell the item, such sale to be undertaken in accordance with any legislation applicable to the sale or disposal of uncollected goods.

25.2     The lien of PS shall continue despite the commencement of proceedings, or judgment for any monies owing to PS having been obtained against the Client.

 

  1. 26.       Trial Equipment

26.1     Unless the Client approves payment for the equipment on trial, the Equipment shall at all times remain the property of PS and is returnable on demand by PS. In the event that Equipment is not returned to PS in the condition in which it was delivered PS retains the right to charge the Client the full cost of repairing the Equipment. In the event that Equipment is not returned at all PS shall have right to charge the Client the full cost of replacing the Equipment.

26.2     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 PS to the Client.

26.3     The Client accepts full responsibility for the safekeeping of the Equipment and the Client agrees to insure, or self insure, PS’ interest in the Equipment and agrees to indemnify PS 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.

 

  1. 27.       General

27.1     The failure by PS to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect PS’ right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.

27.2     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 Tauranga in New Zealand.

27.3     PS 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 PS of these terms and conditions (alternatively PS’ liability shall be limited to damages which under no circumstances shall exceed the Price of the Goods/Equipment on trial).

27.4     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 PS nor to withhold payment of any invoice because part of that invoice is in dispute.

27.5     PS may license or sub-contract all or any part of its rights and obligations without the Client’s consent.

27.6     The Client agrees that PS may amend these terms and conditions at any time. If PS makes a change to these terms and conditions, then that change will take effect from the date on which PS notifies the Client of such change. The Client will be taken to have accepted such changes if the Client makes a further request for PS to provide Goods/Equipment to the Client.

27.7     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.

27.8     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.