EZISWAP – TERMS AND CONDITIONS OF TRADE

Background

These Terms and Conditions and any other Document produced and accepted by EZiSwap describing the Goods or Services will form the agreement between EZiSwap and the Customer in relation to the supply of Goods or the provision of Services.

EZiSwap recommends the Customer seek legal advice about these Terms and Conditions before accepting them and purchasing any Goods or Services.

Purchase or use of any Goods or Services constitutes acceptance of these Terms and Conditions.

Any trade arrangement, agreement or course of dealing between the parties at variance with these Terms and Conditions will have no effect unless provided in writing and approved by EZiSwap.

1. Definitions

Customer means the person or entity to or for whom the Goods are to be supplied by
EZiSwap, or for whom the Services are to be provided to by EZiSwap.

Cylinders means all gas cylinders (including new and second-hand of all sizes) from time to time sold or supplied to the Customer by EZiSwap or any other person on behalf of EZiSwap.

Documents mean and include any invoice, quotation, order, document, statement issued or account application form produced and accepted by EZiSwap.

Force Majeure Event means any event or circumstance (whether arising from natural causes, human agency or otherwise) that is beyond the reasonable control of EZiSwap, including strikes, lockouts or other labour disputes, riot, civil commotion, fire, flood, drought, loss or delay at sea, breakdown or war (whether declared or not).

Goods means the goods sold or supplied to the Customer by EZiSwap, including any Cylinders.

Intellectual Property means EZiSwap’s business names, trade names, trade marks, product names, copyright, patents, designs, industrial processes, trade secrets, know how, ideas, concepts, technical information, writings, diagrams, drawings, and all other intellectual property rights whatsoever owned, developed, created or used by EZiSwap in relation to the Goods, Services and/or its business and any development or modifications in or to such intellectual property.

Services means any services agreed in writing and to be provided to the Customer by EZiSwap from time to time.

EZiSwap means EZiSwap Gas Limited at Auckland. Purchase Price has the meaning described in clause 3.1.

Terms and Conditions means these trading terms and conditions as amended from time to time by EZiSwap and notified to the Customer.

2. Order Acceptance

1. 2.1  All orders for Goods or Services are subject to acceptance by EZiSwap in writing or byEZiSwap supplying Goods or providing Services in accordance with the order.
2. 2.2  Where a quotation is given by EZiSwap, such quotation is open for acceptance for a period of 30 days from the date of the quotation unless withdrawn by EZiSwap prior to this date.
3. 2.3  Any special conditions specified by EZiSwap in any Document will prevail over these Terms and Conditions to the extent of any inconsistency.
4. 2.4  Once an order has been placed, it may not be cancelled for any cause whatsoever without EZiSwap’s written consent. Upon placing the order, the Customer will be deemed to have invited EZiSwap to supply or arrange for the supply of the Goods, or provide or arrange for the provision of Services, and to have agreed that the Customer’s order will be irrevocable, pending acceptance or rejection by EZiSwap within a reasonable time.

3. Price

1. 3.1  The Purchase Price is the listed price for the Goods or Services charged by EZiSwap at the date of delivery or such other price as may be agreed by EZiSwap and the Customer prior to delivery of the Goods or provision of the Services.
2. 3.2  All prices quoted are inclusive of all taxes (including any value added tax, goods and services tax, and/or other sales tax that applies) but exclusive of any freight and delivery costs and any levies, imports and other governmental, statutory or regulatory costs and charges which will be payable by the Customer in addition to the quoted Purchase Price.

4. Payment

1. 4.1  Payment for Goods or Services is due and payable (in full) on the date of order of the applicable Goods or Services by credit card payment or direct credit to EZiSwap’s designated account.
2. 4.2  Finance may be available on application through EZiSwap’s preferred creditor provider. Credit terms (including with respect to deposit payment, interest rates and charges) will apply.
3. 4.3  EZiSwap may, in the event any amount owing to EZiSwap is not received in full by the due date, charge the Customer interest at EZiSwap’s current bank overdraft rate plus a margin of 2% per annum on any amount outstanding, calculated on a daily basis from the due date for payment until the date full payment is received by EZiSwap.
4. 4.4  The Customer will pay all EZiSwap’s costs and expenses (including legal costs and expenses incurred on a solicitor/own client basis) incurred by EZiSwap in the collection of the Purchase Price and the enforcement of its rights and remedies under these Terms and Conditions, any Document and at law, upon demand being made by EZiSwap.

5. Delivery

1. 5.1  Any delivery period referred to in the Documents is subject to confirmation by EZiSwap on receipt of the Customer’s order, and will commence from the date on which EZiSwap has both the Customer’s completed order, payment for the Goods and all particulars required to enable EZiSwap to proceed with supply of the Goods. Times quoted for delivery are estimates only and the delivery date will be subject to revision should there be delays caused by circumstances beyond EZiSwap’s control. EZiSwap is not liable for delay in delivery of the Goods to the maximum extent permitted by law.
2. 5.2  The Customer may pick up Goods from EZiSwap’s premises or an EZiSwap centre on agreement with EZiSwap..
3. 5.3  Unless otherwise agreed, delivery will be deemed to have taken place:
   1. (a)  if the Goods are to be collected from EZiSwap’s premises or an EZiSwap centre, then the earlier of:
      1. (i)  just prior to the Goods being loaded onto the carrier organised by the Customer; or
      2. (ii)  at the time and date when the Goods are scheduled to be collected by the Customer; or
   2. (b)  if the Goods are to be delivered (at the Customer’s expense) to the Customer’s nominated address then just prior to the Goods being unloaded from the carrier at the nominated address in accordance with the order.
4. 5.4  EZiSwap reserves the right to deliver in instalments. Failure of the Customer to pay for any one or more of the instalments of the Goods on the due date will entitle EZiSwap (at the sole option of EZiSwap), without notice, to suspend further deliveries of the Goods pending payment by the Customer and/or treat this agreement as repudiated by the Customer.
5. 5.5  Risk in the Goods passes on delivery to the Customer as set out in clause 5.35.2.
6. 5.6  Insurance will not be affected by EZiSwap on Goods dispatched from EZiSwap’spremises, unless EZiSwap receives and accepts written instructions to insure.
7. 5.7  To the extent permitted by law, no claim for damage in transit, or shortage in delivery, will be entertained by EZiSwap unless a separate notice in writing is given to the carrier concerned and to EZiSwap by the Customer immediately upon the Customer becoming aware of the circumstances giving rise to the claim, followed by a detailed and complete claim in writing, within seven days of delivery.

6. Storage

6.1 Should EZiSwap not receive forwarding instructions sufficient to enable EZiSwap to dispatch the Goods on the Customer’s behalf, within a period of 7 days after the date of notification that they are ready for dispatch; the Customer will take delivery or arrange for storage. If the Customer does not take delivery or arrange for storage, EZiSwap will be entitled to arrange storage either at EZiSwap’s premises, an EZiSwap centre or elsewhere on the Customer’s behalf, and all charges for storage, insurance, demurrage, handling and any other loss, costs, claims, damages, expenses (including all legal costs and expenses incurred on a solicitor/own client basis) incurred by EZiSwap, or any of its employees, agents or subcontractors, will be payable by the Customer on demand.

7. Sale by Description and/or Sample – Publicity Materials 7.1 To the extent permitted by law:

1. (a)  If it is a condition of the agreement between EZiSwap and the Customer that Goods will correspond with a description, then such description must be specified in a Document and agreed by EZiSwap.
2. (b)  All leaflets, sketches, illustrations or catalogue materials supplied by EZiSwap are to be used as a guide only. EZiSwap reserves the right to change any design or construction details or other specifications at any time.

8. Warranties and Liability

1. 8.1  The Customer acknowledges and agrees that it:
   1. (a)  has relied upon its own skill, knowledge and judgement in relation to the particular use or suitability of the Goods for the Customer’s purpose; and
   2. (b)  is entirely responsible for its own, and all its customers, installation and use of the Goods.
2. 8.2  EZiSwap and the Customer agree:
   1. (a)  where the Goods or Services are provided by EZiSwap, and acquired by the Customer, in trade the provisions of the Consumer Guarantees Act 1993 are expressly excluded; and
   2. (b)  any conditions or warranties implied in these Terms and Conditions by any law are expressly excluded to the maximum extent permitted by law and that it is fair and reasonable to do so.
3. 8.3  EZiSwap will assign and pass through to the Customer, or if it is unable to do so, will hold for the Customer’s benefit, all warranties provided by third parties in respect of any Goods that are supplied by EZiSwap but subject to any exclusions, conditions and/or limitations that may apply in respect of such warranties.
4. 8.4  The Customer must not misrepresent to anyone the specifications, performance or purpose of the Goods or Services and must not make or give any warranties, guarantees or representations in relation to the Goods or Services whatsoever without EZiSwap’s prior written consent.
5. 8.5  If the Customer is in trade, the Customer warrants, represents and undertakes to EZiSwap that it will contract out of the statutory guarantees and implied terms, covenants and conditions contained in the Consumer Guarantees Act 1993 and the provisions of sections 9, 12A and 13 of the Fair Trading Act 1986 with all trade customers that purchase Goods or Services from the Customer, to the maximum extent permitted by law.
6. 8.6  It will be the Customer’s responsibility to check the quality of delivered Goods before use. If the quality is not in accordance with the quality contracted for or if the Customer has reason to believe the quality of the Goods is such as to give rise to difficulties in use, then the Customer will not use the Goods until the Customer has received permission from an approved representative of EZiSwap in writing or by telecommunications.

8.7 If Goods are defective, the Customer must:

1. (a)  provide written notice to EZiSwap of any defect with full particulars thereof within 7 days of the defect becoming apparent and obtaining any relevant details required by EZiSwap for making the claim;
2. (b)  send to EZiSwap original proof of purchase and reasonable evidence of the original date of supply of the Goods;
3. (c)  send the Goods to EZiSwap in its original packaging or packed in a manner approved by EZiSwap to the address below, and subject to the applicable consumer laws, pay for all packaging, freight and insurance costs for transit of the Goods to EZiSwap:EZiSwap Gas Limited Unit C 42-44 Porana Rd Wairau Valley
   Auckland 0627

8. 8.8  To the maximum extent permitted by law, the liability of EZiSwap under this these Terms and Conditions is limited, at the option of EZiSwap, to:
   1. (a)  with respect to any claim relating to the Goods,
      1. (i)  replacing the Goods or the supply of equivalent Goods;
      2. (ii)  the repair of the Goods;
      3. (iii)  the payment of the cost of replacing the Goods or of acquiring equivalent Goods; or
      4. (iv)  the payment of the cost of having the Goods repaired;
   2. (b)  with respect to any claim relating to the Services:
      1. (i)  supplying the Services again; or
      2. (ii)  paying the cost of having the Services supplied again;
   3. (c)  with respect to any other claim whether under contract, tort (for negligence or otherwise) or on any other basis, to an amount equivalent to the Purchase Price paid by the Customer for the Goods or Services provided to the Customer.
9. 8.9  Notwithstanding any other provision of these Terms and Conditions and to the maximum extent permitted by law, EZiSwap will have no responsibility, or liability to the Customer, for:
   1. (a)  components that may need replacement or repair due to normal fair wear and tear or lack of maintenance upkeep;
   2. (b)  damage caused by accident, misuse, negligence, abuse or fire;
   3. (c)  overloading or transport damage;
   4. (d)  Goods that have not been returned to EZiSwap in its original packaging or in a manner approved by EZiSwap within four weeks of the date of delivery of the Goods;

(e) unauthorised alteration, modification or substitution of any parts of the Goods;

6. (f)  malfunction due to faulty installation or operation;
7. (g)  Goods that have their serial number or model number removed or defaced;
8. (h)  Goods that have been used for a purpose other than for what was reasonably intended for the Goods;
9. (i)  fault in parts that have been manufactured by someone other than EZiSwap.

8.10 Notwithstanding any other provision of these Terms and Conditions and to the maximum extent permitted by law, EZiSwap is not liable for any consequential loss or damage, of any kind arising out of any defect in the Goods, or the supply, installation or use of the Goods or the Services, or arising out of EZiSwap’s negligence, or in any way whatsoever.

9. Indemnity

1. 9.1  The Customer will indemnify and keep indemnified EZiSwap and its employees, agentsand contractors, and hold all of them harmless from and against:
   1. (a)  all loss, costs, claims, damages, expenses (including all legal costs and expenses incurred on a solicitor/own client basis) incurred by EZiSwap, or any of its employees, agents or subcontractors; and
   2. (b)  all actions, suits, claims, demands and any other proceedings whatsoever made or brought against EZiSwap or any of its employees, agents or contractors,

   caused by any breach of these Terms and Conditions, or by any representation made, or any, act or omission, or negligence committed, by the Customer or by any of the Customer’s employees, agents, contractors or customers.

2. 9.2  If the Customer is in trade, the Customer will indemnify and keep indemnified EZiSwap and its employees, agents and contractors, and hold all of them harmless from and against any liability, loss, costs, claims, damages, expenses (including all legal costs and expenses incurred on a solicitor/own client basis) suffered or incurred by EZiSwap as a result of any claim against EZiSwap (whether in its capacity as a “deemed” manufacturer or otherwise) relating to the Goods by a consumer under the Consumer Guarantees Act 1993, the Fair Trading Act 1986 or any other applicable consumer protection legislation in effect in New Zealand.

10. Intellectual Property

1. 10.1  The Customer acknowledges that all Intellectual Property is, and at all times remains, the exclusive property of EZiSwap. The Customer will not, and will not permit anyone else to, use or copy the Intellectual Property, unless EZiSwap expressly agrees in writing.
2. 10.2  The Customer will not alter, remove, or in any way tamper with any of the trade or other marks or numbers of EZiSwap attached to or placed upon any Goods.

11. Information and Privacy

11.1 The Customer warrants, represents and undertakes to EZiSwap that it has provided, and will continue to provide, to EZiSwap accurate, up-to-date and complete information (including credit information).

2. 11.2  The Customer authorises EZiSwap to collect and disclose information about the Customer (including credit information) to or from any person (including accountants, credit reporters, debt collection agencies, solicitors or other suppliers) for the purposes of:
   1. (a)  considering whether to provide Goods and Services to the Customer;
   2. (b)  making credit decisions about the Customer including considering the Customer’s credit application, monitoring the Customer’s credit account, and from time to time reviewing whether to continue providing credit; and
   3. (c)  recovering any amount owing by the Customer, or taking enforcement action against the Customer.
3. 11.3  The Customer acknowledges that information given to credit reporting agencies may be disclosed by them to other persons to help those other persons decide whether to provide credit or other goods or services to the Customer.

12. Retention of Title

1. 12.1  Subject to any applicable and relevant law, property in and title to the Goods remains with EZiSwap until payment in full for the Goods and all sums due and owing by the Customer to EZiSwap on any account has been made.
2. 12.2  The Customer, upon receipt of the Goods, holds the Goods as bailee for EZiSwap until the Customer has paid all amounts owing by the Customer to EZiSwap. Until such time, the Customer will store and identify the Goods in such a way that the Goods are clearly identified as EZiSwap’s property.
3. 12.3  Prior to title in the Goods passing to the Customer:
   1. (a)  the Customer will not be entitled to intermingle the Goods with any other objects, or otherwise deal with the Goods so that they may become a constituent part of any other object, without EZiSwap’s prior written consent. Such consent, if granted, will only be deemed to be granted upon the basis that, should the Customer intermingle or deal with the Goods in a way that they become a constituent part of any other object, the Customer will be deemed to do so as EZiSwap’s agent and title in all such other objects will vest in EZiSwap as principal; and
   2. (b)  the Customer will be fully accountable to EZiSwap for all proceeds derived on the sale of such new objects and will deposit the proceeds from such sales, so as to clearly identify them as EZiSwap’s property, and will hold such proceeds in trust for EZiSwap.
4. 12.4  Until such time as title of the Goods passes from EZiSwap to the Customer, EZiSwap may give notice in writing to the Customer to return the Goods or any of them to EZiSwap. Upon such notice the rights of the Customer to obtain ownership or any other interest in the Goods will cease. If the Customer fails to return the Goods to EZiSwap then EZiSwap or EZiSwap’s agent may, without liability, enter upon and into buildings and premises or otherwise where the Goods are stored and take possession of the Goods without liability for trespass or any resulting loss or damage. The Customer indemnifies EZiSwap against any loss, costs, claims, damage, expenses (including all legal costs and expenses incurred on a solicitor/own client basis) suffered by EZiSwap as a result of EZiSwap repossessing the Goods in accordance with this clause.

13. Security interest

1. 13.1  The Customer grants EZiSwap a security interest in all Goods from time to time supplied by EZiSwap to the Customer, and all the Customer’s present and future rights in relation to those Goods and all proceeds, as security for the payment of all amounts the Customer may from time to time owe EZiSwap and the performance of the Customer’s obligations to EZiSwap. EZiSwap may register a financing statement to protect its interest.
2. 13.2  The Customer will:
   1. (a)  sign all documents and provide all information EZiSwap requires to register a financing statement or financing change statement on the Personal Property Securities Register (PPSR);
   2. (b)  indemnify, and upon demand reimburse, EZiSwap for all expenses incurred in registering a financing statement or financing change statement on the PPSR, or releasing any goods charged; and
   3. (c)  give EZiSwap at least 20 days prior written notice if it wishes to change its name.
3. 13.3  The Customer will protect EZiSwap’s interests in the Goods. In particular, the Customer will:
   1. (a)  put in place appropriate security precautions to protect the Goods from loss, damage and destruction including arranging suitable insurance;
   2. (b)  not permit any other security interest to attach to the Goods; and
   3. (c)  not change the physical appearance of the Goods.
4. 13.4  The Customer agrees:
   1. (a)  that nothing in sections 114(1)(a), 133 and 134 of the Personal Property Securities Act 1999 (PPSA) will apply to these terms;
   2. (b)  to waive all the Customer’s rights under sections 116, 120(2), 121, 125, 126, 127, 129 and 131 of the PPSA;
   3. (c)  to waive the Customer’s rights to receive a copy of the verification statement confirming registration.

14. Force Majeure

1. 14.1  Notwithstanding any other provision of these Terms and Conditions, non-performance by EZiSwap of any of its obligations under these Terms and Conditions will be excused, without liability for non-performance, during the time and to the extent that such performance is prevented, wholly or substantially, by a Force Majeure Event. Subject to clause 14.2, performance of any obligation affected by a Force Majeure event will be resumed as soon as reasonably possible after the termination or abatement of the Force Majeure Event.
2. 14.2  If, by reason of a Force Majeure Event, EZiSwap is unable to perform any material obligation under these Terms and Conditions for a period of 60 days after the occurrence of the Force Majeure Event, EZiSwap may terminate the supply of Goods or Services by giving written notice to the Customer.

15. Termination

1. 15.1  Without prejudice to any of EZiSwap’s rights or remedies, EZiSwap may terminate theseTerms and Conditions and any order for Goods or Services immediately if the Customer:
   1. (a)  fails to pay any amount owing to EZiSwap under these Terms and Conditions;
   2. (b)  breaches these Terms and Conditions, and such breach is not capable of remedy, or if capable of remedy, is not remedied to EZiSwap’s satisfaction within 10 days after EZiSwap notifies the Customer of such breach; or
   3. (c)  an event occurs which in EZiSwap’s sole opinion effects or may affect the Customer’s ability to meet its obligations under these Terms and Conditions, including the bankruptcy, voluntary administration, receivership or liquidation of the Customer.
2. 15.2  Upon termination of these Terms and Conditions, the Customer must immediately pay all amounts owing to EZiSwap, and EZiSwap may repossess any unpaid Goods without notice. EZiSwap may retain all or part of any deposit paid by the Customer to cover its reasonable costs and/or as compensation for the early termination of these Terms and Conditions.

16. General

1. 16.1  These Terms and Conditions are governed by New Zealand law, and the parties submitto the jurisdiction of the New Zealand Courts.
2. 16.2  To the maximum extent permitted by law, these Terms and Conditions contain all of the terms and conditions of the contract between EZiSwap and the Customer and EZiSwap and the Customer agree that sections 9, 12A and 13 of the Fair Training Act 1986 are expressly excluded.
3. 16.3  To the maximum extent permitted by law, any unlawful or voidable provision in these Terms and Conditions will be read down so as to be valid and enforceable or, if it cannot be read down, will be severed from these Terms and Conditions without affecting the validity, legality or enforceability of the remaining provisions, provided that the reading down or severing does not materially affect the purpose of or frustrate the Terms and Conditions.
4. 16.4  No waiver of any of these Terms and Conditions or failure to exercise a right or remedy by EZiSwap will be considered to imply or constitute a further waiver by EZiSwap of the same or any other term, condition, right or remedy.
5. 16.5  The Customer warrants it has had the opportunity to obtain independent legal advice about its obligations under these Terms and Conditions, and confirms the Terms and Conditions are fair and reasonable.

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