T & C’s

THE GREEN MACHINE LIMITED TERMS OF TRADE

1. DEFINITIONS AND INTERPRETATION

  1. 1.1.  In these terms and conditions and in any Contract to which these terms and conditions apply, unless the context otherwise requires:
    1. 1.1.1.  Company means The Green Machine NZ Limited, withcompany number 8223358, at Christchurch and includes its successors or assigns and all of its subsidiaries, whether partly or wholly owned;
    2. 1.1.2.  Contract means a contract for the supply of Goods by the Company to the Customer, comprised of these Terms and a Purchase Order accepted by the Company;
    3. 1.1.3.  Customer means the customer buying the Goods;
    4. 1.1.4.  Goods means the macerator and dewatering units soldby the Company to the Customer under a Contract;
    5. 1.1.5.  Purchase Order means an order for Goods placed by the Customer whether by phone, email or othermanner as agreed with the Company;
    6. 1.1.6.  Terms means these terms and conditions, to be readand construed with each Purchase Order accepted bythe Company; and
    7. 1.1.7.  Working Day means a day which is not a Saturday,Sunday or a Public Holiday in Christchurch and on which registered banks are open for general banking business in Christchurch, New Zealand.
  2. 1.2.  Unless the Company and the Customer otherwise expressly agree in writing, these Terms and the terms as set out in any applicable Purchase Order will apply to all sales of Goods and no other terms or conditions will apply.
  3. 1.3.  These Terms supersede any previous terms agreed to by the parties, and the Customer’s terms of trade.

2. SUPPLY OF GOODS

The Company will supply the Goods to the Customer and the Customer will purchase the Goods from the Company as described in the Purchase Order in accordance with these Terms.
3. PURCHASE ORDERS

  1. 3.1.  Each Purchase Order shall be deemed to be a separate offer by the Customer to purchase the Goods, which the Company will be free to accept or decline at its absolute discretion. A Purchase Order will only be binding on the Company once it gives notice to the Customer that it accepts the Purchase Order.
  2. 3.2.  Each Purchase Order shall specify:

3.2.1. the nature of the Goods required;
3.2.2. the price of the Goods required (in accordance with

any price list provided by the Company). 3.2.3. the target delivery date and delivery location.

4. PRICE AND PAYMENT

  1. 4.1.  Subject to any applicable finance lease terms, the Company will invoice the Customer for each Purchase Order as follows:
    1. 4.1.1.  50% on confirmation of the Purchase Order;
    2. 4.1.2.  40% on issue of bill of lading; and
    4.1.3. 10% on commissioning of the Goods or 30 days of delivery, whichever is earlier,or at such other times as the parties may agree in writing. The Customer will pay the Company within 7 days of the date in which the Company’s invoice was sent to the Customer, or as otherwise set out in the invoice. The Customer will pay the full amount owing to the Company on the due date (including freight and any GST), without set-off and free of any deductions.
  2. 4.2.  Unless otherwise specified, all prices in the invoice are in New Zealand Dollars, excluding GST and freight (if any).
  3. 4.3.  If full payment for the Goods is not made on the due date, then without prejudice to any other remedies available:
    1. 4.3.1.  the Company may cancel or withhold supply of theGoods;
    2. 4.3.2.  the Company may charge interest on monies overdue,accruing on a daily basis and to be calculated at the rate of 11% per annum during such default; and

4.3.3. the Customer will be responsible for all costs incurred by the Company in recovering such monies.

4.4. Before supplying the Customer with Goods, the Company may, in its sole discretion require all or any of the following: full payment in advance, a guarantee of payment or a letter of credit.

5. WARRANTIES

5.1. Subject to clause 5.2, the Company warrants to the Customer that the Goods will be free from manufacturing defects for a period of 12 months from the date of delivery.

5.2. To the fullest extent permitted by law and except to the extent of written warranties given by the Company to the Customer, all warranties and representations including those expressed or implied by law, in respect of Goods are excluded.

5.3. Notwithstanding any other provision of these Terms, the Company shall not be liable:

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5.3.1. 5.3.2.

5.3.3. 5.3.4.

5.3.5. 5.3.6.

where the Customer has altered or modified the Goods or have subjected them to any unusual or non- recommended use; or
where the Customer has failed to reasonably comply with the installation and maintenance guidance specified in any documentation provided by the Company relating to the particular Goods; or

for loss caused by any factors beyond the reasonable control of the Company, including environmental damage; or
where the Goods have been sold under special terms that exclude particular liability (for example on a discounted but non-refundable basis); or

for any indirect or consequential loss of any kind; or where the terms of any written warranty have not been complied with, or any Company instructions (including as to use) not complied with.

5.4. In the
Contract (including for rejected Goods), the Company’s total liability is limited to either (at the Company’s election):
5.4.1. repairing the defective or damaged Goods; or
5.4.2. replacing the defective or damaged Goods; or
5.4.3. refunding the price of the defective or damaged Goods.

5.5. Any Goods returned to the Company must be returned with freight paid. Where the Company elects to repair or replace defective Goods, the Company will use reasonable endeavours to repair or replace the Goods, as soon as practical, but will not be liable for any delay in taking such action.

5.6. Any repaired or replacement goods will be liable to the remedies contained in clause 5.4 for the unexpired portion of the 12 month period from the original date of delivery.

5.7. The Customer warrants to the Company that it is solvent and able to pay its debts as they become due and is properly authorised to enter into this document and each Contract.

6. CANCELLATION

6.1. The Customer may not cancel any Purchase Order for Goods or part of it without the Company’s prior written consent, to be given at the Company’s absolute discretion.

6.2. The Company may, without incurring liability, cancel a Contract if:

  1. 6.2.1.  the Customer becomes insolvent, enters into a scheme of arrangement with creditors (other than with the Company’s prior consent) or ceases or threatens to cease to carry on all or a material part of its business, or has a receiver or administrator appointed in respect of any or all of its assets or other steps are taken for its dissolution;
  2. 6.2.2.  an extraordinary event occurs or a material change affecting the affairs or the financial condition of the Customer occurs, which gives the Company reasonable grounds to conclude that the Customer may not, or may be unable to, perform or observe its obligations under a Contract; or

event that the Company is found to be liable under any

6.2.3. the Customer breaches any of these Terms and fails to remedy such breach within five Working Days of receiving written notice of such breach.

7. RETURNS

  1. 7.1.  The Company will not accept the return of any Goods unless they are defective Goods or with the express written consent of the Company. The Company reserves its absolute discretion in providing such express written consent.
  2. 7.2.  Any non-defective Goods returned to the Company must be returned with freight paid, in the same condition and original packaging.

8. INDEMNITY

  1. 8.1.  To the fullest extent permitted by law, the Customer indemnifies the Company against all costs, claims, demands, expenses and liabilities of whatsoever nature, including without prejudice to the generality of the foregoing, damage to property and consequential loss (including loss of profits or intellectual property), which may be made against the Company or which the Company may sustain, pay or incur as a result of or in connection with the supply or use of Goods, unless such cost, claim, demand, expense or liability shall be directly and solely attributable to the negligence of the Company or the negligence of a duly authorised employee or agent of the Company.
  2. 8.2.  In the event the Company is held to be liable to the Customer, clause 5.4 will apply.

9. CONFIDENTIALITY

  1. 9.1.  All confidential information received by the Company from the Customer shall be used solely for the supply of Goods under a Contract.
  2. 9.2.  The Customer warrants not to use any of the Company’s intellectual property or confidential information other than with the written consent of the Company.

10. RISK AND TITLE

  1. 10.1.  Unless otherwise advised to the Customer, risk in the Goods will pass from the Company to the Customer when the Goods are delivered to the Customer or a third party on the Customer’s behalf.
  2. 10.2.  Title in the Goods will pass to the Customer when full payment of all monies owing to the Company from the Customer has been made. Until all monies have been paid:
    1. 10.2.1.  the Customer will hold the Goods for the Company in amanner which enables them to be identified as Goods owned by the Company, and as agent for the Customer, the Company (and its employees and agents) may, without prior notice, enter any land or premises where the Goods are kept in order to take possession of and/or remove them and the Customer indemnifies the Company against any liability incurred in connection with such entry, taking of possession and removal;
    2. 10.2.2.  if the Customer sells or uses any Goods, the proceeds of sale or use (in whatever form) will be deemed to be the Company’s property and the Customer will pay all such proceeds to the Company or otherwise deal with such proceeds as directed by the Company, irrespective of any terms of credit between the parties; and
    3. 10.2.3.  if the Company takes possession of any Goods in accordance with this clause, the Company may sell or dispose of the Goods in such manner and generally on such terms and conditions as it sees fit.

11. DELIVERY

  1. 11.1.  The Company will use reasonable endeavours to ensure that delivery of the Goods is made at or before the target delivery date to the specified delivery address, but will not be liable for any loss or costs incurred arising from any failure to deliver at or prior to the target delivery date. A failure or delay by the Company in making delivery at a specified time does not cancel or repudiate the Contract.
  2. 11.2.  The Company will have no liability for any failure or delay in delivering the Goods to the extent that the failure or delay is caused by reasons other than the Company’s failure to comply with its obligations under the Contract.

11.3. The Customer agrees that any employee or agent of the Customer who signs for delivery of the Goods is authorised to accept delivery of the Goods on behalf of the Customer. The Company will not liable for missing Goods where a signature has proven delivery.

11.4. If the Customer fails to pick up or to accept delivery of the Goods ordered, or requests a delay in delivery, the Customer will pay the Company reasonable stand-by and storage charges until such time as delivery is made, plus any additional freight or handlings costs incurred.

12. ACCEPT ANCE AND DEFECTIVE PRODUCTS

12.1. The Customer is responsible for inspecting the Goods and satisfying itself that the Goods are in accordance with the applicable Contract. The Customer may reject any Goods picked up by it or delivered to it that do not comply with the description provided by the Company, provided that:

12.1.1. notice of rejection is given to the Company within two Working Days of pick up or delivery; and

12.1.2. the Company has been provided reasonable opportunity to inspect the Goods and confirm the defect.

12.2. If the Customer fails to give notice of rejection in accordance with clause 12.1, it shall be deemed to have accepted the Goods.

13. INSTALLACTION AND MAINTENANCE

13.1. The Goods must be installed by a qualified person as approved by the Company. Supplied services (i.e. electricity and water) should meet any specification documentation supplied with the Goods.

13.2. The Customer is required to regularly clean equipment and ensure servicing is carried out when required.

14. FORCE MAJEURE

14.1. If the Company is prevented from supplying the Goods or performing any other obligation under a Contract as a result of fire, flood, storm, explosion, act of war, earthquakes, theft, tempest, riots, wars, pandemic, epidemic, government restrictions, vandalism, terrorist actions, transport delays, breakdown of plant or machinery, act of god, shortage of labour, strikes, lockout, or any other cause beyond the reasonable control of the Company (Force Majeure), then the failure or delay in performance will be deemed not to be a breach of the Company’s obligations under the Contract and the Company will not be liable for any damage or loss caused.

14.2. Promptly following the occurrence of a Force Majeure, the Company and the Customer will hold discussions in good faith to agree upon actions to be taken to avoid further failure or delay in the performance of the Contract.

14.3. If no agreement is reached after the Force Majeure, or if the Company is excused from performance of its obligations under the Contract for a continuous period of two months from the date of the occurrence of the Force Majeure, then either party may terminate the Contract by written notice to the other.

15. DISPUTES
15.1. If a dispute arises (Dispute) between the parties in relation to

the supply of Goods, then the parties will endeavour to settle the Dispute by way of good faith negotiation. If the parties are unable to resolve the Dispute within five Working Days, the Dispute may be resolved in accordance with clause 15.2.

15.2. In the event that the Dispute is not resolved by negotiation, the matter may be referred to mediation by any party by written notice. In the event that the matter is referred to mediation, the parties will, within five Working Days of the matter being referred to mediation, agree on a mediator. If a mediator cannot be agreed on between the parties, a mediator will be appointed by the then President of the Arbitrators’ and Mediators’ Institute of New Zealand (AMINZ). In the event the Dispute is not resolved by a completed mediation within a further 20 Working Days, any party may refer the matter to arbitration by written notice.

15.3. If a Dispute is not settled under clauses 15.1 and 15.2, then either party may submit the Dispute to be settled by arbitration by a sole arbitrator in accordance with the provisions of the Arbitration Act 1996. The arbitrator will be appointed by the then President of AMINZ. The arbitration will be conducted within the provisions of the Arbitration Act 1996. Arbitration will

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take place in Christchurch, New Zealand, unless agreed otherwise between the parties. The parties agree that the decision reached at arbitration will be final and binding on the parties.

15.4. The parties agree that all Disputes will be resolved in accordance with the procedures set out in this clause 15, however this clause 15 does not prevent any party from seeking urgent interlocutory or declaratory relief from a competent jurisdiction where, in that party’s reasonable opinion, that action is necessary to protect that party’s rights.

16. PERSONAL PROPERTY SECURITIES ACT 1999 (PPSA)

16.1.The Contract constitutes a security interest in all the Customer’s present and after acquired personal property including the Goods supplied by the Company to the Customer for the purposes of the PPSA as amended or replaced from time to time.

16.2. The Company can register or perfect the security interest

its directors, shareholders, staff or clients, for the purpose of enforcing its rights and carrying out its obligations under these Terms.

18.2.The Company may also collect, hold, use and disclose personal information for the purpose of keeping the Customer up to date with its services (i.e. marketing), any purpose advised to the Customer at the time of collection, or as otherwise permitted under the Privacy Act 2020. Where the Customer provides information relating to any individual, the Customer will ensure it has all relevant consents required for such purposes.

18.3.Where personal information is held by the Company, the individual shall have the right to request access to, and correction of, such personal information. Personal information collected by the Company is held by the Company.

19. MISCELLANEOUS

19.1. If any part of these Terms are held to be unenforceable, the part concerned will be deleted or modified to the minimum possible extent necessary and the remainder of the Terms enforceable will remain in force.

19.2. No delay or failure by the Company to exercise its rights under a Contract operates as a waiver of those rights.

19.3. The Customer may not assign or transfer any of its rights or obligations under or in connection with any Contract to any third party without the prior written consent of the Company.

19.4. The Company reserves the right to assign, transfer or sub- contract the performance of any Contract or any part of the Contract to any other person.

19.5. The Company may amend these Terms by notice to the Customer. Amendments to these Terms will be effective and binding as between the parties in respect of any Purchase Order placed after the time the updated Terms are notified to the Customer.

19.6. The Customer agrees that the Company may obtain information about the Customer from any source including credit assessment and debt collecting and the Customer consents to any person providing the Company with such information. If reasonably required by the Company, the Customer will procure any director, shareholder, partner or guarantor of the Customer to consent to a credit check being performed on that person and the Customer will procure such person to sign any necessary consent form reasonably required by the Company for such purpose.

19.7. The Customer will pay all costs and expenses (including legal fees) incurred by the Company in exercising any of its rights under any Contract.

19.8. Any notice given by one party to the other will be deemed to have been delivered 48 hours after posting to the recipient’s registered office or last known address and immediately, if transmitted by email.

19.9. All Contracts made between the Company and the Customer will be governed by and construed in accordance with the laws of New Zealand and the Customer agrees to submit to the non-exclusive jurisdiction of the New Zealand Courts.

recognised under clause 16.1 in any means possible in jurisdiction of the Customer (and any other jurisdiction Company deems necessary or desirable) to ensure that Company has an enforceable security interest against Customer in the Goods and all amounts due under Contract, including any future amounts.

the the the the the

  1. 16.3.  The Customer agrees to promptly execute and deliver to Company all assignments, transfers and other agreements and documents and do anything else which the Company may deem appropriate to ensure that the Company’s security interest is enforceable, perfected and otherwise effective, or give any notification in connection with the security interest to obtain the priority required by the Company and enable the Company to exercise its related rights, or register (and renew registration for) a financing statement for a security interest in favour of the Company.
  2. 16.4.  Everything the Customer is required to do or the Company is permitted to do under clause 16.3 above is at the Customer’s expense. The Customer agrees to pay or reimburse the Company for any or all of those costs.
  3. 16.5.  To the extent that Part 9 of the PPSA applies:
    1. 16.5.1.  the Customer agrees that the provisions of sections114(1)(a), 120, 122, 133 and 134 of the PPSA which are for the Customers benefit, or any provisions which place any obligations on the Company in the Customer’s favour, shall not apply; and where the Company has rights in addition to those in Part 9 of the PPSA, those rights shall continue to apply; and
    2. 16.5.2.  without limiting anything in the previous paragraph, the Customer hereby waives its rights under sections 116, 120(2), 121, 125, 126, 127, 129 and 131 of the PPSA, and its rights to receive a copy of a verification statement under section 148 of the PPSA in respect of any financing statement or financing change statement registered by the Company.
  1. CONSUMER GUARANTEES ACT 1993The parties agree that the Goods are acquired or performed for the purposes of a business and that the Consumer Guarantees Act 1993 does not apply.
  2. PRIVACY

18.1. The Customer agrees that the Company may collect, hold, use and disclose personal information in respect of the Customer,

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