1.0 Terms of contract

 1.1 - These Terms and Conditions of Sale apply whenever Track Industries Limited (referred to as “Track” “we” “our” or “us”) supplies any materials, plant, machinery, equipment ("Goods") or services (when in conjunction with the supply of goods or otherwise) ("Services") to any person (referred to as “the Customer”), unless expressly agreed otherwise in writing. By requesting the supply of Goods or Services from us, the Customer acknowledges and agrees to these Term and Conditions of Sale.

 1.2 - These Terms and Conditions of Sale, our written quotation (if applicable) or other sales confirmation issued by Track and our invoice (together, the "Agreement") constitute the entire agreement between the parties for the supply of the Goods and Services referred to in the Agreement and exclude (to the extent permitted by law) all other representations, promises, undertakings, terms, conditions and warranties (whether express or implied).

 1.3 - Any terms or conditions put forward by the Customer, whether in a purchase order, specification or otherwise, will not be binding on us unless specifically agreed to in writing by us.


2.0 Prices

 2.1 - The price for Goods and Services will be either as quoted to the Customer in writing or, if no written quotation is provided, as set out in our standard price list (including standard hourly rates) applying at the time of delivery.

 2.2 - Unless otherwise agreed in writing all packaging, freight, insurance, delivery, travel charges, the cost of materials and the cost of any services provided by third parties to Track (in both cases where Track is providing Services to the Customer) and other costs and disbursements incurred by us in providing the Goods or Services together with GST and other government duties, levies or taxes imposed in respect of the Goods and Services, will be additional to any price quoted. These will be charged at the rates applying at the time of delivery.

 2.3 - Unless otherwise agreed in writing any quoted price may be altered prior to delivery of Goods or the provision of Services to the Customer, if Track’s determines, at its discretion, that its costs have increased materially.

 2.4 - Track is entitled to withdraw any quotation before it is accepted, and in any event any quotation will lapse without notice 30 days after it is given.


3.0 Terms of Payment and Customer default

 3.1 - The Customer must pay all amounts set out in each Track invoice in full, without set-off or deduction, by the due date and in the manner specified on the invoice.

 3.2 - Where we have agreed to extend credit to the Customer, payment in full, without deduction or set off, is due by the 20th of the month following the date of invoice . Payment is made only when funds have fully cleared through the bank system into our bank account.

 3.3 -  If full payment for the Goods and Services is not made by the due date, the Customer will, on demand, pay an administration fee and interest on all overdue amounts of 2% per month (calculated daily) from the due date until payment is received in full.

3 .4 - Track may accept and apply payments from you in respect of any indebtedness, and we will not be bound by any conditions or qualifications attaching to the payments.

 3.5 - Where Track have agreed to extend credit to the Customer, we may, from time to time at our discretion, vary the Customer's credit limit with us. If a purchase of Goods or Services would exceed the Customer's current credit limited, we may require payment in cash of the excess before delivery of them.

 3.6 - If: (a) the Customer breaches any provision of the Agreement (or any other agreement with Track);

              (b) any event occurs or information becomes known to Track which, in Track's opinion, might materially affect the Customer's creditworthiness or the Customer's ability or willingness to comply with its obligations under the Agreement;

              (c) the Customer suffers any bankruptcy or insolvency event (including an inability to pay its debts as they fall due, the appointment of any liquidator, receiver, administrator, or similar officer in respect of the Customer or any of its assets; the passing of any resolution, the filing of any proceedings or the making of any order for the liquidation, receivership, administration, bankruptcy, winding-up or dissolution of the Customer; the entry by the client into any compromise or arrangement with its creditors; or the occurrence of any analogous event under the laws of any applicable jurisdiction); 

  then without limiting any other right or remedy Track may have, Track may:
             (a) cancel or withhold supply of further Goods and the Services;

             (b) demand immediate payment by the Customer of all amounts outstanding under any order placed by the Customer, whether or not then due for payment;

             (c) where we have agreed in writing to extend credit to the Customer, decline to extend further credit to the Customer and require payment in cash before delivery of any further Goods or provision of any further Services; and

             (d) withdraw any discount offered to the Customer and the Customer will be liable for the full invoice.

 3.7 - The Customer will pay on demand all costs (including, without limitation, administration charges, debt collections costs and legal costs as between solicitor and client) incurred by Track in connection with any default by the Customer or enforcement action taken by Track under these terms.


4.0 Delivery and Risk of Goods

 4.1 - Goods will be supplied and delivered (or made available for collection) on the delivery basis specified on the relevant sales confirmation (or as otherwise agreed in writing). When the Customer requests the Goods to be delivered to another person, that person takes possession of the Goods as agent for the Customer.

 4.2 - Track will make every effort to complete delivery on the date agreed but will not be liable for any delay in delivery nor will the Customer be entitled to cancel or reject any order.

 4.3 - Despite clause 8 below, risk in respect of the Goods shall pass to the Customer on delivery in accordance with clause 4.1 above. The Customer is responsible for insurance of the Goods from that time.

4.4 - Without limiting the previous provisions of this clause 4, all claims for shortages or delivery damage must be made to the carrier and us within seven days after delivery.


5.0 Supply of services

 5.1 - Track shall provide the Services described in the quotation or sales confirmation.

 5.2 - Track shall undertake the Services using reasonable skill, care, efficiency and diligence in accordance with standard commercial practices.

 5.3 - Any dates specified by Track for completion of the Services are approximate only and shall not form part of the Agreement. Track shall use its reasonable endeavours to complete the Services on the specified dates, however it shall not, under any circumstances be liable for any delay.

 5.4 - Where the Services provided are site labour at premises specified by the Customer, the labour provided will be under the direct supervision of the Customer's supervisory staff (unless Track has also agreed in writing to supply supervising staff for the relevant Services).


6.0 Customer obligations

 6.1 - The Customer must:

              (a) co-operate with Track in all matters relating to the Services;

              (b) provide Track, and Track's agents, subcontracts and employees, in a timely manner, with all-weather access to the Customers' site, premises and other facilities as reasonably required by Track to supply the Services and prepare such premises and facilities to eliminate or minimise risks to Track's workers as far as reasonably practicable during the supply of the Services; and

              (c) provide Track with such information and materials as Track may reasonably require to supply the Services and ensure that such information is accurate in all material respects.

              (d) during the provision of the Services by Track at the Customer's premises or other premises controlled or specified by the Customer, comply with all of the Customer's obligations under the Health and Safety at Work Act 2015.

 6.2 - The Customer agrees to indemnify Track, on demand, against any costs, claims, demands, actions and liabilities incurred by us arising out of any failure to comply with the Customer's obligations under clause 6.1.


7.0 Returns and cancellation

 7.1 - Goods may be accepted for return and credit only with the prior written authority of Track and if they are received by us at our premises where they were dispatched from within 14 days after delivery.

 7.2 - All Goods accepted by Track for credit must be delivered at the Customer’s expense, with a copy of the original packing slip or invoice and must be in original condition and packaging and are subject to Track’s inspection upon receipt. Credit will not be given for damaged or used Goods or for freight or restocking charges.

 7.3 - No specially manufactured or specially ordered products, or products modified to a Customer's requirements, or products which would be unsaleable by Track to another party, will be accepted for credit.

 7.4 - The customer may not cancel an order for Goods or Services, wholly or partly, without our written consent. As a condition of giving consent, we may require reimbursement of any costs (including materials, handling fees and labour) incurred by us in connection with the order up to the date of our consent.

 7.5 - In addition to our rights under clause 3.3(a) above, we may cancel or suspend an order for Goods or Services, wholly or partly and without liability to the Customer, in any of the circumstances set out in clause 3.6 above or if fulfilling the order becomes impractical or uneconomic due to any cause beyond our control.


8.0 Title

 8.1 - Ownership in the Goods shall not pass to the Customer at the time of delivery, but will remain with us until all money the Customer owes to Track has been paid in full. To avoid doubt no intellectual property rights incorporated within the Goods or the results of any Services are transferred to the Customer unless otherwise agreed.

 8.2 - Until such monies have been paid:

              (a) the Customer will keep the Goods separate from any other goods in the Customer's possession, and properly stored, protected and insured, and identified as Track's property;

              (b) all sums received from any insurance claim made in respect of loss or damage to the Goods shall be treated as if they were proceeds of sale and held by you on the same terms as those set out in clause 8.2(d) below, and the Customer will also hold on trust for us and, if required by us, assign to us the benefit of any insurance claim made in respect of the Goods;

              (c) if any part of the Goods shall become incorporated into any other property so as to lose its separate identity then those other goods shall be separately stored and marked so as to be identifiable as being made from or with the Goods;

              (d) where the Goods are sold to the Customer as inventory for resale, the Customer may resell them in the normal course of business at full market value provided that until Track receives payment in full: (i) the resale shall be as principal in relation to the Customer's sub-buyer but, as between the Customer and Track, the Customer shall deal with the Goods for and on behalf of Track and in every respect as a fiduciary and agent and (ii) the proceeds of sale shall be held by the Customer on trust for and on behalf of Track in a separate account;

              (e) we may, at any time, require the Customer to deliver the Goods (which have not been resold) to us and, if the Customer fails to do so, our employees and agents may enter any premises where the Goods might be stored and recover them, and the Customer agrees to indemnify us, on demand, against any liability incurred by us in our exercise of this right.


9.0 Personal Property Security Act 1999 (“PPSA”)

 9.1 - The Customer acknowledges and agrees that by accepting these Terms and Conditions of Sale, the Customer grants to Track a Security Interest in all Goods (“Collateral”) supplied and their proceeds (by virtue of the retention of title in clause 8 above).

 9.2 - The Customer undertakes to: (a) promptly execute any documents and do anything else and provide all information required by Track to register a financing statement or financing change statement on the Personal Property Securities Register ; and (b) advise us immediately in writing of any proposed change in the Customer's name or other details on the Personal Property Securities Register. 

9.3 - The Customer: (a) waives its right to receive a verification statement in respect of any financing statement or financing change statement relating to the security interest; (b) waives its rights and, with Track's agreement, contracts out of its rights under sections 116, 120(2), 121, 125, 126, 127, 129 and 131 of the Personal Property Securities Act 1999 ("PPSA"); and (c) agrees that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these Terms and Conditions of Sale and, with Track's agreement, contract out of such sections.

9.4 - Unless the context otherwise requires, the terms and expressions used in this clause 9 have the meanings given to them in, or by virtue of, the PPSA.


10.0 Warranties and liability

 10.1 - Track warrants that we will replace, or, at our option, repair defective Goods of its own manufacture provided that the Customer notifies us in writing of the defect (in sufficient detail for the Goods and the defect to be clearly identified) and the Goods are returned to us at our premises where they were dispatched from (or to an authorised repairer nominated by us for the purpose) at the Customer's expense within one year of delivery.

 10.2 - Where Track is notified by the Customer that the Services provided by Track are defective, Track may elect to re-perform the Services or refund to the Customer the price paid by the Customer to Track for the relevant Services provided that such notification is received within one year of completion of the Services.

 10.3 - Goods not manufactured by Track are sold with the same warranties given by the manufacturer provided those warranties are capable of being assigned to the Customer.

 10.4 - All warranties are strictly conditional upon the Customer not being in default in making any payment due to Track.

 10.5 - Track shall not be liable under a warranty for any defect arising from fair wear and tear, wilful damage, negligence, abnormal working conditions, failure to follow our instructions, misuse, any alteration or repair of the Goods not authorised by us or for any defect arising from a drawing, design or specification supplied by the Customer.

 10.6 - To the fullest extent permitted by law Track shall never be liable whether in contract, tort (including negligence) or otherwise for any:

  (a) indirect, special or consequential loss or damage or for any loss of income, profits, savings or goodwill in each case whether direct or indirect and however caused; and

  (b) amount exceeding the price paid by the Customer to Track for the relevant Goods or Services.

 10.7 - Except as set out in these Terms and Conditions of Sale, all other warranties, conditions, representations and other terms whether express or implied are, to the fullest extent permitted by law, excluded from the Agreement.


11.0 Consumer Guarantees Act 1993

 11.1 - If the Consumer Guarantees Act 1993 ("CGA") applies, these Terms and Conditions of Sale shall be read subject to the Customer's rights under the CGA. 

 11.2 - Where the Customer is acquiring the goods in trade (as provided in sections 2 and 43 of the CGA), the CGA shall not apply.

 11.3 - Where clause 11.2 above applies and the Customer is acquiring the Goods for the purposes of resale, the terms of trade applying to the resale (and, if those customers acquire the Goods for the purposes of resale, their terms of trade and the terms of trade of each other person in the Customer's distribution chain) must include a provision having the same effect as that clause. The Customer agrees to indemnify us, on demand, against any liability under the CGA as a result of any failure by the Customer, its customers or any other person in the distribution chain to include such a provision.


12.0 Intellectual Property

 12.1 - The Customer warrants that any designs, drawings or specifications provided to Track will not infringe on any intellectual property rights of any third party. If Goods or Services supplied by Track based on the Customer's design, instructions or specifications infringe or are alleged to infringe any third party's intellectual property rights including, but not limited to patent or registered design rights or copyright, the Customer will, on demand, indemnify Track against all damages and costs incurred by Track as a result of the infringement or allegation. The Customer will provide to Track every assistance in meeting an infringement claim brought against Track.

 12.2 - Track shall retain all intellectual property in any original design, work and/or process incorporated in the Goods or Services unless specified otherwise.


13.0 Force Majeure

 13.1 - Track shall not be liable to the Customer for damages directly or indirectly arising from any failure or delay in delivery of the Goods or Services or failure to perform any of the Terms and Conditions of Sale where such failure is caused directly or indirectly by an act of God, frost, electrical failure, fire, armed conflict, labour dispute, civil commotion, Government intervention, or inability to obtain labour or materials, accidents, transportation delays, or any other cause beyond Track’s reasonable control.


14.0 Information and Privacy Act

 14.1 - For the purposes of assessing the Customer’s credit worthiness, enforcing any rights under the Terms and Conditions of Sale or marketing Track’s Goods and Services, the Customer authorises Track to hold, collect and use personal information about the Customer and supply that information to any person for those purposes. The Customer may request access to and correction of any personal information about the Customer held by Track at any time.


15.0 Non-solicitation of employees

 15.1 - The Customer undertakes that it will not, prior to that date which is six months following the last supply of Goods or Services by Track, whether directly or indirectly, solicit, canvass, or endeavor to entice away from Track any employees of Track whether or not such employee would commit a breach of contract by reason of leaving Track's service.


16.0 General terms

 16.1 - Amendments: We may amend these Terms from time to time by notice to you in writing

 16.2 - Waiver: No delay or failure by us to exercise our rights under these Terms operates as a waiver of those rights. A partial exercise of those rights does not prevent their further exercise in the future.

 16.3 - Severability: If a court decides that part of these Terms is unenforceable, the part concerned shall be deleted from the rest of these Terms, which will then continue in force.

 16.4 - Law: These Terms will be interpreted in accordance with and governed by the laws of New Zealand, and the New Zealand Courts will have non-exclusive jurisdiction in respect of all matters between us. The parties hereby agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply to this contract.