Terms and Conditions of Trade

Merquip Terms & Conditions of Trade

1. Interpretation

1.1. In these Merquip terms & conditions of trade (Conditions of Trade):

(a) Buyer means the person, firm or company purchasing the Goods and includes any person acting on behalf of and with the authority of the Buyer.
(b) Consumer has the same meaning as prescribed under the Consumer Guarantees Act 1993.
(c) Goods means the products and/or services subject to a sale or maintenance contract between the Buyer and Merquip, including without limitation:

• • Billi products, filters and spare parts
  • Merquip products and spare parts
  • Schwan products and spare parts
  • Miscea products and spare parts
  • Cosmetal products and spare parts,
  • and includes products and services further identified in any invoice issued by Merquip to the Buyer, which invoices are deemed to be incorporated into and form part of these Conditions of Trade.

(d) Merquip means Billi New Zealand Limited, trading as Merquip (Company Number 8200430) or its agents, employees or representatives.

2. Acceptance

2.1. Every order, sale, quotation, instruction and contract placed with Merquip from the Buyer for the sale or supply of Goods shall be subject to these Conditions of Trade and shall constitute
acceptance of the terms of these Conditions of Trade.

2.2. The Buyer acknowledges and agrees that these Conditions of Trade apply to the sale of Goods by Merquip and shall prevail over any terms or conditions, stipulated, incorporated or
referred to in the Buyer’s order or in correspondence. No condition or stipulation, proposed by the Buyer, which is or might be inconsistent with a term of these Conditions of Trade or
which purports to add to or modify them, shall have any effect unless expressly accepted by Merquip in writing.

3. Price and payment

3.1. All prices for Goods and price lists exclude Goods and Services Tax (GST). The Buyer must pay GST on the supply of the Goods at the rate applicable at the time of supply.
3.2. Merquip will provide the Buyer with a tax invoice (as the term is defined in Goods and Services Tax Act 1985 (GST Act)) which will include the details required by the GST Act. The
Buyer shall pay to Merquip the price of the supply stated on that invoice, which will be the price of the Goods at the date of delivery inclusive of GST and all other charges.
3.3. All prices will also be exclusive of packaging costs, freight charges, delivery costs, installation and de-installation costs and such other charges notified by Merquip to the Buyer all of which will be payable by the Buyer.
3.4. If the cost to Merquip of supplying the Goods not yet delivered is materially increased by any dispute or cause, and the parties concerned cannot agree on how such increase shall be borne
between them, either party may cancel the contract without liability in respect of such
undelivered Goods.
3.5. Where delivery of the Goods is to be made by instalments, each delivery shall be treated as a separate contract and failure, suspension or delay in any delivery or defect in the Goods
delivered shall not vitiate the contract as to the other Goods.
3.6. In its sole discretion, Merquip may offer the Buyer alternative payment terms from time to time in writing, either on the basis of individual invoice, or by separate letter. In this case, the
alternative payment terms shall override the payment terms in this clause 3, but only in respect of the Goods specified on each invoice or letter.
3.7. Prices, delivery charges, fees and other terms are subject to alteration without notice and unless otherwise specified.
3.8. All stock is ordered subject to availability and prior sale.

4. Risk and Delivery

4.1. The risk in any Goods provided by Merquip shall pass to the Buyer when the Goods have been delivered to the Buyer’s premises by Merquip itself or any carrier, courier or other bailee
instructed for that purpose.
4.2. Any delivery or installation dates quoted by Merquip are estimates only and shall not form part of the contract between Buyer and Merquip. Merquip will not, under any circumstances,
be liable for any costs, expenses, damages or loss of profits incurred by the Buyer nor will the Buyer be entitled to refuse delivery as a result of delay.

5. Terms of Payment

5.1. The Buyer shall pay all amounts owing to Merquip as specified by way of invoice on or before the 20th of the month following the date of that invoice. Unless otherwise stated on the
invoice, this date shall be deemed by the parties to be the due date (Due Date).
5.2. If the Buyer does not pay amounts owing in full on or before the Due Date, Merquip may at its election:

5.2.1. charge interest compounding monthly on the unpaid overdue balance at a daily rate of 1.5%; and
5.2.2. suspend sale or delivery of further goods until the Buyer’s account is paid and settled in full.

5.3. All expenses incurred by Merquip in collecting overdue amounts from the Buyer, including debt collection costs, legal costs and costs incurred in a dispute resolution process initated for
that purpose, will be payable by the Buyer to Merquip in full as a debt due forthwith upon demand by Merquip.
5.4. The Buyer shall send all amounts due under these Conditions of Trade to the address of Merquip printed on the front of each invoice.
5.5. If the Buyer:

5.5.1. becomes insolvent, including by reason of its inability to pay its debts as they fall due or an insolvency or similar proceeding is initiated by or against it;
5.5.2. enters into a compromise of any kind with its creditors or, where the Buyer is an individual, commits an act of bankruptcy or is or becomes an insolvent under administration;
5.5.3. suspends payments or is placed into or takes steps to enter a winding up, dissolution, administration or reorganisation process (by way of voluntary arrangement, scheme of arrangement or otherwise); or
5.5.4. has a receiver, receiver and manager, liquidator, administrator, statutory manager, controller or other custodian appointed over any of its assets or undertakings, proceedings are instituted for its winding up or a voluntary administrator is appointed, together, an Insolvency Event, then:
5.5.5. all amounts outstanding and owing to Merquip shall become immediately due and payable; and
5.5.6. Merquip shall have the option to withhold or cancel further deliveries, provided that the failure on the part of Merquip to exercise such option in respect to one or more deliveries shall not affect their right to exercise it in respect of other deliveries; and
5.5.7. where the Buyer has been granted credit, then the credit can be withdrawn at any time and any orders cancelled by Merquip in its sole discretion.

6. Title

6.1. Property in and title to each unit of the Goods supplied shall not pass to the Buyer until payment has been received by Merquip in full (each unit being considered as a whole).
6.2. The Buyer acknowledges that it is in possession of the Goods solely as bailee for Merquip until all amounts owing for those Goods have been received by Merquip. Until title passes to the
Buyer, Merquip may give notice in writing to the Buyer that it intends to remove the Goods from the Buyer’s possession and may then do so.

7. Default by Buyer

7.1. The following constitutes an event of default under the Conditions of Trade (Event of Default):

7.1.1. the Buyer breaches any of these Conditions of Trade;
7.1.2. any cheque tendered by or on behalf of the Buyer is dishonoured for payment;
7.1.3. the Buyer fails to comply with any demand for payment issued by Merquip;
7.1.4. any amount payable by the Buyer to Merquip becomes overdue for payment or, in Merquip’s reasonable opinion, the Buyer will be unable to meet its payment obligations to Merquip as they fall due; or
7.1.5. an Insolvency Event occurs.

7.2. If an Event of Default occurs, without prejudice to Merquip’s other remedies under these Conditions of Trade or at law:

7.2.1. Merquip may cancel all or any part of any of the Buyer’s orders which remain unfulfilled;
7.2.2. all amounts owing to Merquip by the Buyer will, whether or not due for payment, become immediately payable by the Buyer;
7.2.3. in respect of Goods in which title has not yet passed to the Buyer:

(a) the Buyer’s right to possess, use up, sell or otherwise deal with such Goods immediately ceases; and
(b) Merquip is entitled to enter any premises where such Goods are kept, and remove, repossess and re-sell all or any such Goods, subject only to any rights the Buyer may have under the Credit (Repossession) Act 1997; and

7.2.4. Merquip may enforce any security interest granted to it by the Buyer.

7.3. The Buyer indemnifies Merquip in respect of any claims or actions against, and costs, expenses and other liabilities incurred by, Merquip in relation to the removal, repossession and sale of Goods pursuant to these Conditions of Trade, including without limitation, any claims brought by third parties.

8. Exclusions and limitation of liability

8.1. The Buyer warrants that its purchases from Merquip are for the purposes of a business and are made “in trade” as defined in the Fair Trading Act 1986.
8.2. The Buyer acknowledges that, to the fullest extent permitted by law:

8.2.1. All guarantees, warranties and conditions implied by the Consumer Guarantees Act 1993, the Contract and Commercial Law Act 2017 or otherwise implied by law are expressly excluded.
8.2.2. Subject to any mandatory requirements, Merquip does not warrant that any goods it sells will meet any particular specifications or be fit for any particular purpose. The Buyer must satisfy themselves that the Goods are fit and suitable for the purposes for which they are acquired.

8.3. The parties agree to contract out of sections 9, 12A, 13 and 14(1) of the Fair Trading Act 1986.
8.4. Any liability of Merquip arising directly from any defect in Goods provided shall be limited to the replacement or repair of such defect and shall not in any case exceed the invoice value of the particular Goods provided.
8.5. The Buyer shall inspect the Goods upon delivery or completion of installation as applicable. Any claims of non-compliance must be made in writing and communicated to Merquip within 7 days after the Goods have been provided or installation completed. The Buyer must allow Merquip to inspect the Goods within a reasonable time of receiving the notice where Merquip may reasonably elect to repair or remedy any defect. Where the Buyer fails to comply with the notice provisions of this clause, the Goods ae deemed to have been supplied in accordance
with these Conditions of Trade and free from any defect or damage.
8.6. Without limiting the generality of any other provision of these Conditions of Trade, the Buyer:

8.6.1. acknowledges and accepts that whilst the Goods are (a) manufactured within a certified quality control environment, (b) manufactured in accordance with relevant New Zealand standards, and (c) delivered free of any waterborne bacteria (including legionella), given that Merquip has no control over the conditions within which the Goods are operated or used, Merquip shall not be liable or responsible for any liability associated with the operation and use of the Goods upon delivery;
8.6.2. shall ensure that it, and in the case where the Buyer on-sells or supplies the Goods to a third party, ensure the third party, is fully aware of all instructions and limitations published or communicated by Merquip relating to the (a) care, maintenance and cleaning of the Goods, and (b) the use, nature or quality of the Goods, including but not limited to instructions and limitations:

a. as may appear on labels affixed to, or in or on the packaging of, Goods as supplied by Merquip; and
b. as may be notified by Merquip to the Buyer, or circulated by Merquip, from time to time including any brochures, specifications and other promotional material in relation to Goods provided by Merquip, or published on Merquip’s website from time to time;

8.6.3. acknowledges and agrees that it is responsible, and in the case where the Buyer onsells or supplies the Goods to a third party, ensure that the third party is aware of their responsibility, to ensure that:

a. all water supplied to the Goods is microbiologically safe and free of any waterborne bacteria;
b. a suitable level of filtration is installed with the Goods;
c. filters comprising part of the Goods are changed at Merquip recommended intervals, and in any case at intervals not longer than 12 months;

8.6.4. acknowledges and agrees that it shall not, in the case where the Buyer on-sells or supplies the Goods to a third party, make any representations or claims about the quality, longevity, performance or other aspect of the Goods which has not been expressly authorised by Merquip in writing.

9. Returns

9.1. The Buyer may only return goods to Merquip for credit if:
9.1.1. the prior written approval of Merquip for the return has been obtained; and
9.1.2. the freight costs on the return have been paid by the Buyer.
9.2. Any credit given by Merquip for Goods returned by the Buyer and accepted by Merquip is subject to a re-stocking fee equal to 35% of the purchase price of the Goods plus return freight expenses.

10. Cancellation

10.1. No order for Goods placed by the Buyer and accepted by Merquip may be cancelled or deferred without the prior consent in writing of Merquip where the Buyer will be liable for all costs incurred by Merquip up to the time of cancellation.
10.2. In the case of custom-made Goods ordered by the Buyer, no order for such Goods may be cancelled after:
10.2.1. Merquip has scheduled the manufacture of such Goods; or
10.2.2. Merquip has purchased materials required for the manufacture of such Goods.

11. Personal Property Securities Act

11.1. The Buyer agrees that these Conditions of Trade and in particular the provisions of this clause create a security interest in the Goods for the purposes of the Personal Property Securities
Act 1999 (PPSA) as security for payment by the Buyer for all amounts due to Merquip from time to time (including any future amounts).
11.2. In consideration for Merquip providing Goods to the Buyer, including all future advances of Goods, the Buyer grants a Purchase Money Security Interest (as defined in the PPSA) to Merquip which will continue until all amounts owing to Merquip in respect of those Goods are paid in full. If any Goods supplied to the Buyer are disposed of prior to payment and/or become mixed with other goods (whether supplied by Merquip or not), the security interest will continue in the proceeds of sale of the goods or the products produced by using the Goods (as applicable).
11.3. The Buyer undertakes to:
11.3.1. sign any further documents and/or provide any further information reasonably required by Merquip to register a financing statement on the Personal Property Securities Register (PPSR);
11.3.2. indemnify, and upon demand reimburse, Merquip for all expenses incurred in registering a financing statement or financing change statement on the PPSR;
11.3.3. not register a financing change statement or a change demand without the prior written consent of Merquip;
11.3.4. give Merquip not less than fourteen (14) days’ prior written notice of any proposed change in the Buyer’s name or other details; and
11.3.5. immediately advise Merquip of any material change in its business practice of selling the Goods
11.4. Merquip and the Buyer agree that nothing in sections 114(1)(a), 122, 133 and 134 of the PPSA shall apply to these Conditions of Trade.
11.5. The Buyer waives its rights as a debtor under sections 116, 120, 121, 125, 126, 127, 128, 129, 131 and 132 of the PPSA.
11.6. The Buyer waives its rights to receive a verification statement in accordance with section 148 of the PPSA.
11.7. Where Merquip has rights in addition to those under Part 9 of the PPSA, those rights continue to apply.
11.8. The Buyer agrees that repossession and retention of Goods pursuant to the PPSA will only satisfy so much of the amounts owing by the Buyer to Merquip as is equivalent to the market value of the Goods as at the date of repossession, and the repossession and retention will immediately extinguish any rights or interest the Buyer has in the Goods.
11.9. The Buyer must not assign or factor its right and interest in any debt owed by a customer of the Buyer to the Buyer on account of the proceeds of sale of any Goods by the Buyer on credit or deferred payment terms without Merquip’s prior written consent.

12. Buyer’s Statutory Rights

12.1. Without limiting clause 8 (Exclusions and limitation of liability), these Conditions of Trade shall not exclude, limit or modify the rights, entitlements and remedies conferred upon the Buyer, or the liabilities imposed upon Merquip under relevant New Zealand legislation, but are subject to all excludable conditions and warnings which are hereby excluded where the Buyer is not a Consumer.

13. Buyer as Trustee

13.1. Where the Buyer enters into a contract with Merquip in its capacity as trustee of a trust, whether or not disclosed to Merquip and whether or not so expressed in the contract, the Buyer warrants that:

13.1.1. it is the sole trustee of the trust, or it has the written consent of all of the trustees of the trust, and has the power and authority to enter into the contract;
13.1.2. it does so with the consent of, and for the benefit of, all beneficiaries of the trust;
13.1.3. it does so both in its personal capacity and in its capacity of trustee;
13.1.4. it has a right of full indemnity from the trust’s assets for all obligations incurred by it; and
13.1.5. it will not remove or resign as trustee without Merquip’s express written consent.

14. Your privacy

14.1. The Buyer acknowledges and consents to the use by Merquip of the Buyer’s personal information and that of its employees, officers and agents for the purpose of supply of Goods
to the Buyer hereunder, for general marketing purposes and otherwise in accordance with Merquip’s privacy policy, which is displayed at www.merquip.co.nz or available upon request. Other than in the circumstances allowed under the Privacy Act 2020 or Merquip’s privacy policy, Merquip does not disclose such personal information to other parties. The Buyer may contact Merquip’s privacy officer at any time to access or change any personal information provided to Merquip.

15. Variation of these Conditions of Trade

15.1. These Conditions of Trade may be varied, replaced or deleted from time to time by Merquip and those items so altered shall form part of the contract between the parties in relation to orders and requests for Goods made or placed by the Buyer with Merquip.

15.2. Failure by Merquip to insist upon strict performance of any term of any contract between the parties or of any of these Conditions of Trade shall not constitute a waiver of a similar or subsequent breach, and the rights of Merquip to enforce these Conditions of Trade and those in any contract shall remain valid and subsisting.

16. Assignment

16.1. The Buyer must not assign any rights or benefits under these Conditions of Trade unless the Buyer has obtained Merquip’s prior written consent. Any change in any ownership interest in the Buyer will be treated as an assignment for the purposes of this clause 16.1.
16.2. Any assignment by the Buyer without Merquip’s written consent will:
16.2.1. constitute an Event of Default for the purposes of clause 7.1;
16.2.2. release Merquip (at its discretion) from its obligations under these Conditions of Trade; and
16.2.3. allow Merquip to exercise its rights under clause 7.2.
16.3. Merquip may at any time assign, sub-contract or license any of its rights, benefits or obligations under these Conditions of Trade without the Buyer’s consent.

17. Severability

17.1. If any provision of these Conditions of Trade, or any provision of a contract between Merquip and the Buyer regarding Goods, is or at any time becomes invalid, void or unenforceable, the remaining provisions will continue in full force and effect.

18. Time of Essence and No Waiver

18.1. Time is the essence of these Conditions of Trade and any contract between Merquip and the Buyer regarding Goods. Neither failure nor delay by Merquip to exercise any power, right or remedy under these Conditions of Trade will operate as a waiver by Merquip of that power, right or remedy.

19. General

19.1. These Conditions of Trade shall be governed by the laws of New Zealand.
19.2. These Conditions of Trade may be updated by Merquip from time to time and all amendments, updates and variations made from time to time shall apply as and from the date updated and published at www.merquip.co.nz.
19.3. These Conditions of Trade bind:
19.3.1. if these Conditions of Trade are included as part of any trading agreement entered into with Merquip, each person or entity to that trading agreement; or
19.3.2. if these Conditions of Trade are included as part of, or accompany, a credit account application, each person or entity to that credit account application; or
19.3.3. if these Conditions of Trade are included as part of, or accompany, any confirmation of order, invoice or other document issued by Merquip, each person or entity to whom the confirmation of order, invoice or other document is addressed, who is identified in the confirmation of order, invoice or other document as a customer or to whom Goods are expressed to have been sold in the confirmation of order, invoice or other document; in respect of each sale or supply of Goods by Merquip to the relevant Buyer, and in respect of each contract between Merquip and the relevant Buyer for each such sale or supply.
19.4. Except as otherwise expressly stated in these Conditions of Trade, these Conditions of Trade do not oblige Merquip to sell or supply any Goods to the Buyer.
19.5. Neither party shall be liable for any default due to any act of God, terrorism, war, strike, lock out, industrial action, flood, storm, pandemic, endemic or other event beyond the reasonable control of either party.19.6. Merquip shall be under no liability whatsoever to a Buyer for any indirect or consequential loss and/or expense (including loss of profit) suffered by that Buyer arising out of a breach by Merquip of these Conditions of Trade, including a defect in the Goods provided.

20. Signing

The Buyer agrees to these Conditions of Trade.

Revision date: January 2023