Spirit | Rocks | Water

1. Definitions

1.1 "Contract" means the terms and conditions contained herein, together with any quotation, order, invoice or other document or amendments expressed to be supplemental to this Contract.

1.2 "Aitken & Co" means Aitken & Co Limited, its successors and assigns or any person acting on behalf of and with the authority of Aitken & Co Limited.

1.3 "Customer" means the person/s, entities or any person acting on behalf of and with the authority of the Customer requesting Aitken & Co to provide the Services, and: (a) if there is more than one Customer, is a reference to each Customer jointly and severally; (b) if the Customer is a partnership, it shall bind each partner jointly and severally; (c) if the Customer is part of a trust, shall be bound in their capacity as a trustee; and (d) includes the Customer's executors, administrators, successors and permitted assigns.

1.4 "Goods" means all Goods or Services supplied by Aitken & Co to the Customer at the Customer's request from time to time.

1.5 "Price" means the Price payable (plus any GST where applicable) for the Goods as agreed between Aitken & Co and the Customer in accordance with clause 4 of this Contract.

2. Acceptance

2.1 The Customer is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Customer places an order for Goods, or accepts Delivery.

2.4 The Customer acknowledges that the supply of Goods on credit shall not take effect until the Customer has completed a credit application with Aitken & Co and it has been approved with a credit limit established for the account.

2.5 In the event that the supply of Goods requested exceeds the Customer's credit limit and/or the account exceeds the payment terms, Aitken & Co reserves the right to refuse Delivery.

2.6 Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 226 of the Contract and Commercial Law Act 2017.

3. Change in Control

3.1 The Customer shall give Aitken & Co not less than fourteen (14) days prior written notice of any proposed change of ownership of the Customer and/or any other change in the Customer's details. The Customer shall be liable for any loss incurred by Aitken & Co as a result of the Customer's failure to comply with this clause.

4. Price and Payment

4.3 Time for payment for the Goods being of the essence, the Price will be payable by the Customer on the date/s determined by Aitken & Co, which may be: (a) on order placement; or (b) for credit account holders, twenty (20) days following the end of the month of the date of any invoice/s and/or statement; or (c) the date specified on any invoice; or (d) failing any notice to the contrary, the date which is seven (7) days following date of any invoice furnished to the Customer.

4.5 The Customer shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Customer by Aitken & Co, nor to withhold payment of any invoice because part of that invoice is in dispute.

4.6 Unless otherwise stated the Price does not include GST. The Customer must pay GST at the same time and on the same basis as the Customer pays the Price.

6. Delivery

6.5 Aitken & Co's estimated time for Delivery is between three (3) to seven (7) days from confirmed receipt of the Customer's order and/or payment, which may be increased by one (1) or two (2) days for rural areas. Any time or date given by Aitken & Co is an estimate only. The Customer must still accept Delivery even if late.

7. Risk

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

7.4 Aitken & Co is not responsible for any loss or damage to the Goods in transit. The Customer must lodge a claim with the carrier within twenty-four (24) hours of the date of receipt of the Goods.

8. Title

8.1 Ownership of the Goods shall not pass until: (a) the Customer has paid Aitken & Co all amounts owing; and (b) the Customer has met all of its other obligations to Aitken & Co.

8.3 Until ownership passes, the Customer is only a bailee of the Goods and must return the Goods to Aitken & Co on request. The Customer must not sell, dispose, or otherwise part with possession of the Goods other than in the ordinary course of business and for market value.

9. Personal Property Securities Act 1999 (PPSA)

9.1 Upon assenting to these terms and conditions the Customer acknowledges that these terms and conditions constitute a security agreement for the purposes of the PPSA, and a security interest is taken in all Goods supplied.

9.2 The Customer undertakes to: (a) sign any further documents and/or provide any further information which Aitken & Co may reasonably require to register a financing statement on the Personal Property Securities Register; (b) indemnify Aitken & Co for all expenses incurred in registering a financing statement; and (c) not register a financing statement in favour of a third party without the prior written consent of Aitken & Co.

10. Security and Charge

10.1 In consideration of Aitken & Co agreeing to supply the Goods, the Customer charges all of its rights, title and interest in any land, realty or other assets capable of being charged, owned by the Customer either now or in the future, to secure the performance by the Customer of its obligations under these terms and conditions.

11. Defects, Returns and Warranties

11.1 The Customer shall inspect the Goods on Delivery and shall within seven (7) days notify Aitken & Co of any alleged defect, shortage in quantity, damage or failure to comply with the description, order or quotation.

11.2 Returns will only be accepted provided that: (a) the Customer has complied with clause 11.1; (b) Aitken & Co has agreed in writing to accept the return; (c) the Goods are returned at the Customer's cost within ten (10) days of Delivery; and (d) the Goods are returned in the condition in which they were delivered with all packaging material.

11.3 Aitken & Co may, in its absolute discretion, accept non-defective Goods for return, in which case handling fees of up to fifteen percent (15%) of the value of the returned Goods plus any freight costs may be charged.

13. Default and Consequences of Default

13.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due at a rate of two and a half percent (2.5%) per calendar month (compounding monthly at Aitken & Co's sole discretion) after as well as before any judgment.

13.2 If the Customer owes Aitken & Co any money the Customer shall indemnify Aitken & Co from and against all costs and disbursements incurred in recovering the debt including legal costs on a solicitor and own client basis, collection agency costs, and bank dishonour fees.

14. Cancellation

14.3 In the event that the Customer cancels this Contract or Delivery, the Customer shall be liable for any and all loss incurred (whether direct or indirect) by Aitken & Co as a direct result of the cancellation (including, but not limited to, any loss of profits).

15. Privacy Policy

15.3 The Customer authorises Aitken & Co or Aitken & Co's agent to: (a) access, collect, retain and use any information about the Customer (including name, address, D.O.B, occupation, driver's licence details, electronic contact details, previous credit applications, and credit history) for the purpose of assessing the Customer's creditworthiness or for the purpose of marketing products and services; and (b) disclose information about the Customer to any other credit provider or credit reporting agency for the purposes of providing or obtaining a credit reference, debt collection or notifying a default by the Customer.

15.5 The Customer shall have the right to request from Aitken & Co (by e-mail) a copy of the Personal Information retained by Aitken & Co and the right to request that Aitken & Co correct any incorrect Personal Information.

16. General

16.2 These terms and conditions shall be governed by the laws of New Zealand and are subject to the jurisdiction of the Christchurch Courts of New Zealand.

16.7 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.

16.8 Both parties warrant that they have the power to enter into this Contract and have obtained all necessary authorisations to allow them to do so, they are not insolvent and that this Contract creates binding and valid legal obligations on them.

I agree that if I am a director/shareholder (owning at least 15% of the shares) of the Customer I shall be personally liable for the performance of the Customer's obligations under this contract.