Personal Information Protection Policy
1.2. We take our obligations to protect personal information seriously. Kobelco will continuously update and revise rules and management systems for handling and protection of personal information and ensure compliance by its employees with such rules and systems.
1.5.1. What information Kobelco collects and holds.
1.5.2. How Kobelco uses that information.
1.5.3. How Kobelco manages and secures personal information collected.
1.5.4. How Kobelco uses direct marketing to communicate with customers and how to opt out.
1.5.5. Disclosure of information Kobelco collects.
1.5.6. How customers can request to access and update information.
1.5.7. How personal information is destroyed or de-identified when it is no longer required.
1.5.8. How to request for further information or make a privacy complaint.
Collection of personal information and other information
2.1. Kobelco may use personal information collected from customers that submit an online enquiry form from our site to make enquiries about Kobelco products or services. Information collected includes: first name, last name, company, phone, email, state and postcode and is then forwarded to the correct Kobelco employee and/or authorised Kobelco dealers to be able to contact you to assist with your enquiry and provide the best service to you.
2.2. When customers subscribe to Kobelco’s mailing list or submit an online form, the email address is used to thank customers for subscribing to our email newsletters or for submitting an online enquiry form and we will store your communication and our reply for any future correspondence on our database on servers which are housed in a secure environment. Access is restricted to authorised employees that need the information to perform a specific job. Beyond Kobelco’s initial reply and forwarding a customer’s personal information to the correct Kobelco employee or authorised Kobelco dealers, Kobelco will never use your email address to send you any unsolicited messages or information, or sell it to anyone else for such use.
2.3. Kobelco will use personal information collected from customers that have signed the delivery and warranty registration forms handed in by authorised Kobelco dealers to invite customers that have purchased a product or service to participate in surveys to assist in planning and delivering better products and services. The provision of this information will be voluntary and our intended use will be clearly identified at the time of collection. Customer answers provided in surveys will be recorded on our database on servers which are housed in a secure environment. Access is restricted to authorised employees that need the information to perform a specific job. All personal information is password protected.
2.4. Kobelco may use customer personal information for marketing and promotional purposes and may send information about company news, tips and offers on services and products that may be of interest, only if the customer has provided consent to Kobelco sending them marketing communication material. Our communications will be sent via the preferred method of communication nominated by the customer. We will retain your information for as long as your account is active or as needed to provide you services. If you do not wish to receive information about our products and services you may notify Kobelco at firstname.lastname@example.org.
2.5. Our servers automatically collect site use information each time you visit our site. This site information includes, but is not limited to the following: operating system in use, browser type, which website referred you to us, and other similar information. This information may be aggregated to measure the number of visits, average time spent on our site, pages viewed, time and date of visits, and other similar information. We may use and disclose site use information, for example, to measure the use of our website, improve the content, explain the usefulness of our website and services we provide, and to extend their functionality. We do not link this automatically-collected data to personal information.
Use of personal information and other information collected
3.1. Kobelco may share personal information, including first name, last name, company, phone, email, state and postcode with authorised Kobelco dealers to be able to assist with customer enquiries that come through via Kobelco’s website. For any enquiries, complaints please notify email@example.com.
3.2. Kobelco may post customer testimonial stories on Kobelco’s site which may contain personal information such as names, company, position title and photos of the customer. Kobelco may also share these testimonial stories with authorised Kobelco dealers. Kobelco’s public relations agency will also share the customer testimonial story and photos with industry publications to place in their magazines and websites. Kobelco’s public relations agency does obtain the customer’s consent prior to sharing the testimonial story with personal information mentioned as above via verbal and written communication before sharing this with Kobelco and industry publications. If you wish to update or delete your testimonial from our website, you can contact us at firstname.lastname@example.org.
4.1. Kobelco’s direct marketing consists of a range of communications such as emails, phone and postal mail.
4.2. Kobelco will only communicate with a customer through sending company news, tips and offers on services and products that may be of interest if the customer has elected to receive such information. Our communications will be sent via the preferred method of communication nominated by the customer. We will retain your information for as long as your account is active or as needed to provide you services.
4.3. If you no longer wish to receive such communications, you may advise Kobelco that you wish to opt out by emailing Kobelco at email@example.com.
Storage and security of personal information
5.1. Kobelco takes all reasonable care to prevent any unauthorised access to a customer’s personal data and to keep it secure.
5.2. Kobelco stores personal information on servers which are housed in a secure environment. Access is restricted to authorised employees that need the information to perform a specific job. All personal information is password protected. We have computer and network security on our remote peripherals.
5.4. Kobelco will take reasonable steps to delete or permanently re-identify personal information we hold on you if you cease to be our customer and we no longer need the information to finalise any outstanding matters.
5.5. Kobelco will never use your email address or other information to provide you with any unsolicited messages or information (unless that is part of the service you are requesting).
5.6. Kobelco cannot guarantee the security of your data while it is being transmitted over the Internet and through servers that are out of our control. We strive to protect your personal information but Kobelco cannot ensure or warrant the security of any information you transmit to our website or Services. Any data transmissions you make over the Internet are done so at your own risk. Once we receive the data transmission, we make our best efforts to ensure its security and privacy on our systems.
5.7. Cookies may be used to ensure safety and provide appropriate information to you. Cookie is a piece of information transmitted from Kobelco’s web server to the web browser and may be stored on your computer hard disk or other memory device. Cookie itself does not contain any information to help Kobelco identify an individual person. You can decide whether to accept or block Cookie by setting your web browser. However, if you choose not to accept Cookie, you may not be able to use the services provided on the website managed by Kobelco. We do not exchange cookies with any third party websites or external data suppliers.
5.8. Our servers automatically collect site use information each time you visit our site for reasons stated in point 2.5 above. We do not link this automatically-collected data to personal information.
Remarketing and online advertising
Kobelco use Google Analytics remarketing codes to log when users view specific pages or take specific actions on our website. This allows us to deliver targeted online advertising on sites that are part of the Google Display Network. To do this, Google stores a number in a user’s browser using a “cookie” to remember their visits. This number uniquely identifies a web browser on a specific computer, not a person. These cookies are not essential for the function of our website, but they may enhance a user’s experience by providing content that is relevant to a user and their interests. If you no longer wish to receive this type of advertising from us, you can control how cookies are used on your computer at any time by changing your browser settings. Users can also choose to permanently opt out of the advertising cookies by referring to the ads settings and clicking the “opt out” link.
Disclosure of personal information
7.1. In the normal course of business we will not disclose a customer’s personal information to any other party (other than with authorised Kobelco dealers). However, circumstances may arise where we will disclose your personal information without your consent. The circumstances include but are not limited to situations where disclosure is:
7.1.1. Required or authorised by or under an Australian law or court/tribunal order, or we reasonably believe that the use or disclosure of the information is reasonably necessary for one or more enforcement related activities conducted by, or on behalf of, an enforcement body;
7.1.2. Reasonably necessary for the establishment, exercise or defence of a legal or equitable claim
7.1.3. Enforce crucial terms of our agreements with you;
7.1.4. Sell our business or part of it; and
7.1.5. Necessary (in our reasonable belief) to lessen or prevent a serious threat to the life, health or safety of any individual, or to public health or safety, and it is unreasonable or impracticable to obtain the individuals consent to the disclosure.
Accessing and correcting your personal information
8.1. Under the Australian Privacy Principles 12 and 13, customers have the right to ask Kobelco to provide you with personal information Kobelco holds on you and to ask Kobelco to correct that personal information.
8.2. If such requests are made, Kobelco will require you to provide identification to ensure you are who you say you are. We undertake to provide the information in a reasonable time and to correct any errors where the information is not accurate, up-to-date or complete.
8.3. We wish our services to meet your expectations on all occasions. To do so we need the information we hold about you to be accurate and up to date. Please help us by informing us promptly of any changes to your personal details.
8.4. To request access to, or to correct, your personal information, please contact our (privacy officer) at firstname.lastname@example.org.
8.5. If we decide not to correct or provide you with access to your personal information, we will give you our reasons for our decision.
How to make a request for further information or make a privacy complaint
9.2. We will use our best endeavours to respond and resolve any complaint to your reasonable satisfaction. If Kobelco cannot resolve the complaint to the customer’s satisfaction within a reasonable time, you or Kobelco may refer the complaint to the Privacy Commissioner.
10.2.Last updated 04 January 2016.
Reference for contact information:
Kobelco Construction Machinery Australia Pty Ltd.
Address: PO Box 6579 Blacktown NSW 2148
[Authorised Kobelco Dealers]
Gato Sales Pty Ltd
Capital Construction Equipment
Sydney Trucks & Machinery Centre Pty Ltd
South Coast Trucks & Machinery Pty Ltd
Brisvegas Machinery Pty Ltd
Northeast Auto Group
DLM Machinery Pty Ltd
LiftRite Hire & Sales
Kobelco New Zealand
Terms & Conditions – Machine Sales
- Claim means any claim made (whether in the form of an allegation, demand, suit, action or other proceeding of any kind) under or in connection with the Contract or its subject matter, whether arising under contract (including under any warranty or indemnity or any other breach, actual or anticipatory), in equity, in restitution, negligence or any other tort, strict liability, under statute or otherwise at all.
- Consequential Loss means all loss of actual or anticipated profit, loss of use, loss of productivity, loss of revenue, business interruption of any nature, loss of contracts, loss of opportunity, increased costs and expenses, wasted expenditure, loss arising from delay, loss by reason of shutdown or non-operation or increased cost of borrowing capital or financing, loss of business reputation or goodwill and all special, indirect and consequential losses whether caused by or contributed to by a breach of contract or statute, breach of warranty (express or implied), tort, strict liability or any other cause whatsoever.
- Contract means the combination of these terms and conditions and an agreed quotation, purchase order, sale invoice or agreement (in the event of conflict between these terms and conditions and an agreed quotation, purchase order, sale invoice or agreement, then these terms and conditions will prevail).
- Delivery means when the Goods are picked up by the Purchaser’s carrier or delivered to the Purchaser’s nominated delivery point by Kobelco’s carrier (as specified in the Contract) or as otherwise agreed in writing.
- Equipment means those Goods which comprise mobile equipment, parts and/or attachments as described in the quotation, sale invoice or agreement.
- Goods or Services (or both) collectively and severally means the goods, Equipment (new or used) or Services relating to the Contract or expressed in the quotation and excludes all things not expressly specified in writing by Kobelco.
- GST has the meaning specified in the Goods and Services Tax Act 1985, at the rate prevailing from time to time and has the same meaning when used herein.
- Intellectual property or IP means all industrial and intellectual property rights whether protectable by statute, common law or equity including without limitation, all copyright in the goods and all materials provided in connection with the goods, rights in relation to inventions (including all patents and patent applications), trade secrets and know-how, design rights (registrable or not), trade mark rights (registered or not), circuit layout design rights and excluding non-assignable moral rights.
- Kobelco means Kobelco New Zealand, a branch of Kobelco Construction Machinery Australia Pty Ltd (ACN 097 852 296), a company incorporated in Australia.
- OEM means original equipment manufacturer.
- Party means either the Purchaser or Kobelco. Parties means both the Purchaser and Kobelco.
- Price means the total monetary amount for the sale of the Goods or Services (excl GST).
- PPSA means the Personal Property Securities Act 1999.
- Purchaser means the entity purchasing the Goods and/or Services or as otherwise described in the quotation, purchase order, final sale invoice or agreement.
- Purchaser Nominated Items means any third party attachments, fire suppression, GPS positioning systems, access and/or egress systems, automatic grease systems or any other items nominated by the Purchaser that are not supplied as OEM standard or part of the OEM specification.
- Related Company has the same meaning as in the Companies Act 1993.
- Services mean any service pursuant to a quotation, purchase order, sale invoice or agreement including Commissioning.
2. APPLICATION OF CONDITIONS
Conditions of sale
- The Goods and/or Services are supplied by Kobelco, or traded-in by the Purchaser, solely on the basis of these terms and conditions.
- By issuing a purchase order, invoice or similar document to Kobelco or signing or accepting a quotation issued by Kobelco, the Purchaser unconditionally accepts to be bound by these terms and conditions in entirety and without alteration. The Purchaser unconditionally agrees that any terms and conditions attached to such purchase order, invoice or otherwise are null and void and Kobelco is entitled to ignore such terms.
- Submission by the Purchaser of a purchase order for the Goods and/or Services is deemed to be an offer to purchase the Goods and/or Services (offer) subject to these terms and conditions. Kobelco may accept or reject such offer in its sole discretion.
- An offer to purchase Goods and/or Services is only deemed accepted by Kobelco when it is acknowledged by Kobelco in writing.
- Unless otherwise stated by Kobelco, the Price quoted excludes GST, Delivery costs and any other matter or thing not expressly specified in writing by Kobelco.
- Unless otherwise stated or sooner withdrawn by Kobelco, the Price quoted is valid for 30 calendar days from the date of quotation after which time it will lapse.
- Kobelco may at any time require the Purchaser to provide security against default by way of a cash deposit or unconditional bank guarantee, such security to be released within 7 days of payment of all monies due.
4. DELIVERY and PICKUP
- If the parties agree that Kobelco will provide Delivery of Goods and/or provision of Services, then:
- new and used Equipment Delivery, Service and pick-up dates are indicative only and not guaranteed;
- Kobelco will use reasonable efforts to make Delivery of the Goods or perform the Services as agreed with the Purchaser. If Kobelco is prevented from or delayed in making Delivery of Goods or performing Services for any reason or event beyond Kobelco’s reasonable control, Kobelco may either extend the date for a reasonable period (and has the right to make an equitable adjustment to the Price) or terminate the Contract, without liability to the Purchaser; and
- Kobelco is not liable, and the Purchaser releases Kobelco, for any damage or loss, including Consequential Loss, to the Purchaser resulting from any delay in Delivery or Service.
- The Purchaser may not take possession, custody or control of Goods before Delivery unless agreed by Kobelco, which agreement may be conditional and at the sole discretion of Kobelco.
- In the event that the Purchaser takes possession, custody or control of Goods before they are ready for Delivery, it is deemed that the Purchaser accepts the Goods on that date.
- Unless otherwise agreed in writing, the Purchaser must pay the Price (together with GST and Delivery costs) without deduction or set-off when notified by Kobelco in writing that the Price is due and payable but in any event, on or prior to Delivery. Time is of the essence for payment of the Price. If Delivery is delayed by the Purchaser, then the Purchaser must pay the Price required by this clause when Delivery would have occurred if not for the delay by the Purchaser.
- The Parties irrevocably acknowledge and agree that once Delivery has been made in accordance with the Contract, the Price becomes immediately payable by the Purchaser to Kobelco as a liquidated debt and Kobelco will (without prejudice to Kobelco’s other rights under the Contract or at law) be entitled to commence and maintain an action against the Purchaser for the Price as a liquidated debt.
- Notwithstanding clauses 5.1 and 5.2, if payment terms have been separately agreed between the Purchaser and Kobelco, the Price becomes due and payable by the date agreed by the parties.
- The Purchaser indemnifies Kobelco for any losses, costs or fees (including legal fees on a solicitor-client basis) incurred or arising in connection with recovery of any overdue payment due to Kobelco.
- Goods remain property of Kobelco until payment
The Goods remain Kobelco’s property until all monies owed by the Purchaser to Kobelco are received in clear funds by Kobelco, and whilst these Goods remain Kobelco’s property the Purchaser must:
- keep the Goods in its possession and control, hold the Goods as agent for Kobelco, and not part with the possession of the Goods or, if the possession has been parted with, recover possession of the Goods;
- keep the Goods in good repair and condition, excluding fair wear and tear;
- keep the Goods stored separately and marked so that the Goods are clearly and easily identifiable as Kobelco’s property and if requested, promptly inform Kobelco of the location of the Goods; and
- not sell, assign or lease the Goods or any interest in them, or permit any charge, pledge, lien or other encumbrance to be created in relation to them.
- Personal Properties Securities Act 1999 (“PPSA”)
The Purchaser agrees and acknowledges that the retention of title in clause 5.5 gives rise to a security interest under the PPSA in favour of Kobelco in respect of the Goods and their proceeds.
- The Purchaser undertakes to:
- promptly do all things, execute all documents and/or provide any information which Kobelco may reasonably require, to enable Kobelco to register, protect and maintain the perfection of its security interest (including by registration of a financing statement);
- give Kobelco not less than 14 days’ prior written notice of any proposed change in its name and/or any other change to its details; and
- immediately on request by Kobelco (and at the Purchaser’s expense) obtain from any third party such agreements, waivers and releases (as the case may be) of any security interest that a third party may have in the Goods, to ensure that at all times Kobelco has a first priority security interest in the Goods.
- The Purchaser waives its rights to receive a copy of any verification statements under the PPSA (section 148) and agrees that as between Kobelco and the Purchaser:
- the Purchaser will have no rights under (or by reference to) sections 114(1)(a), 116, 120(2), 121, 125, 129, 132, 133 and 134 of the PPSA; and
- where Kobelco has rights in addition to those in Part 9 of the PPSA, those rights will continue to apply.
- Purchaser’s disposal of goods
If the Purchaser disposes of any of the Goods while they remain Kobelco’s property, or if any of those Goods become part of another product sold by the Purchaser, the Purchaser holds those proceeds on trust for Kobelco up to the amount it owes Kobelco in respect of the Goods, and must immediately pay that amount to Kobelco.
- Purchaser indemnity for breach
- The Purchaser indemnifies Kobelco for any loss, damage, costs or fees (including legal fees on a solicitor-client basis) resulting from a breach of clause 5.
- Kobelco’s right to repossess and suspend Delivery
If the Purchaser fails to pay to Kobelco all monies due under the Contract by the due date, Kobelco has the right and irrevocable licence from the Purchaser, to at any time and without notice, via its representatives, enter the Purchaser’s premises (or such other location where the Goods are located) and repossess the Goods. Kobelco is entitled, at its absolute discretion, to keep the repossessed Goods, sell the repossessed Goods or hold the repossessed Goods in safe custody pending payment of all monies due under the Contract. Kobelco is also entitled to suspend any other Delivery to the Purchaser without liability until any breach of the Contract is rectified by the Purchaser. In the event that Kobelco repossesses the Goods, the Purchaser remains bound by its obligations to Kobelco in accordance with the Contract, including its obligation to pay the Price.
- Kobelco is not liable for any loss, damage or liability suffered as a result of exercising its rights under clause 5.10.
The Purchaser may finance the purchase of the Goods through a separate agreement entered into between it and a finance company selected by the Purchaser. In the event that the Purchaser elects to finance the purchase of the Goods in this manner, the Purchaser may agree with Kobelco to transfer title to the Goods directly to the finance company, and in that event title will transfer directly to the finance company upon full payment of the Price. These terms and conditions will apply as between Kobelco and the Purchaser that finances the purchase of the Goods even if the invoice records the finance company as the purchaser of the Goods.
6. RISK, INSURANCE AND DAMAGE
- Risk in the Goods passes to the Purchaser upon Delivery.
- The Purchaser must insure and keep the Goods insured and must note the interest of Kobelco in the Goods on usual commercial terms with a reputable insurer, against all risks usually insured against for Goods of that kind for full replacement value from the time the risk in the Goods passes to the Purchaser until the time the title in the Goods passes to the Purchaser.
- The Purchaser holds the proceeds of any insurance claim relating to the Goods on trust for Kobelco up to the amount it owes Kobelco in respect of those Goods, and must immediately pay that amount to Kobelco.
- Kobelco is not liable for defects or damage discovered after Delivery unless:
- the Purchaser gives written notice to Kobelco and, if applicable, Kobelco’s carrier within 4 days after the date of Delivery;
- the Purchaser gives Kobelco reasonable opportunity to inspect the Goods in the same condition and place in which they were Delivered; and
- the defects or damage are reasonably shown to have been pre-existing as at the date of Delivery.
7. WARRANTIES AND EXCLUSIONS
- If Goods are under any manufacturer’s warranty applicable to the Goods, the Purchaser must comply with all applicable warranty terms. Failure to do so may void the warranty in full or in part. All applicable warranties for new Goods are available from Kobelco upon request. Any used Goods warranty will only apply if given in writing prior to sale (if any) otherwise the used Goods are sold ‘as is’ and without any warranty from Kobelco or the OEM.
- All legal, statutory or equitable liability, conditions or warranties of any type in relation to the Goods or Services are excluded. Where the Purchaser is acquiring, or holds itself out as acquiring, any Goods or Services for the purposes of a business, in terms of section 43(2) of the Consumer Guarantees Act 1993 (Act) the Purchaser will not assert or attempt to assert any rights or claims against the Seller under the provisions of the Act. However, nothing herein will limit those provisions of the Act, nor statutes, rules or regulations from time to time in force in New Zealand which imply or guarantee certain conditions or warranties or impose obligations on Kobelco which conditions, warranties and obligations cannot, or cannot except to a limited extent be excluded, restricted or modified. If any such statutory provisions apply, then to the extent to which Kobelco is entitled to do so, its liability under those statutory provisions is limited at its option to:
- in the case of Goods:
- the replacement of Goods or the supply of equivalent Goods; or
- the payment of the cost of replacing the Goods or of acquiring equivalent Goods; or
- the payment of the cost of having the Goods repaired; or
- the repair of the Goods; or
- a refund of any money paid or other consideration provided for the Goods; and
- in the case of Services:
- the supply of the Services again; or
- the payment of the cost of having the Services supplied again; or
- a refund of any money paid or other consideration provided for the Services.
- The Purchaser, in connection with the Goods and Services, indemnifies and keeps indemnified Kobelco, its officers, agents, employees, subcontractors, vendors and related companies (Indemnitees) against all Claims, demands, losses, costs, liabilities and expenses arising directly or indirectly out of:
- injury to or death of any person (including Indemnitees) to the extent not caused by Kobelco;
- damage to or destruction of any property (including that of Indemnitees) to the extent not caused by Kobelco; or
- any use of the Goods or any modification to them which is not in accordance with the manufacturer’s, operator’s or maintenance manual, authorised by manufacturer’s recommendations, in accordance with any applicable law, or in accordance with good safety and operating practices relating to the Goods.
- Notwithstanding anything to the contrary in these terms and conditions, Kobelco (including its related companies) is not liable to the Purchaser, at law (including negligence), equity, statute or otherwise for any Consequential Loss howsoever caused.
- Notwithstanding anything to the contrary in these terms and conditions or elsewhere and to the full extent permitted by law, Kobelco’s total cumulative liability to the Purchaser for all liabilities, damages, losses, costs and expenses suffered or incurred under or in connection with the Contract by the Purchaser for all Claims in the aggregate, is limited to the amount paid by the Purchaser to Kobelco for the Goods and Services the subject of the Claim.
- Notwithstanding anything to the contrary in these terms and conditions or elsewhere, Kobelco is not liable to the Purchaser for any liquidated damages, delay penalties, delay damages, performance guarantees or any other similar obligation.
- For Purchaser Nominated Items, Kobelco will:
- assess the installation procedure provided by a third-party supplier;
- if the installation procedure satisfies health, safety and environmental requirements, Kobelco will install the Purchaser Nominated Items in accordance with the third-party installation procedure; and
- take reasonable steps to pass on the benefit of any third-party supplier’s warranty to the Purchaser.
- Except as provided in clause 7.7, Kobelco disclaims all liability in relation to Purchaser Nominated Items. The Purchaser will indemnify Kobelco against, and release Kobelco from, all liability, loss, damage or expense suffered by the Purchaser or any third party arising out of or in any way related to Purchaser Nominated Items.
- assess the installation procedure provided by a third-party supplier;
- in the case of Goods:
- The Purchaser must pay Kobelco interest on any amount not paid from when payment falls due until payment in full is received, at a rate as determined by the ANZ Business Bank Indicator Rate effective from time to time plus 2% per annum calculated on daily balances of amounts unpaid and capitalised daily.
- Kobelco may demand payment of interest by the Purchaser at any time. Failure to demand interest does not constitute a waiver of the entitlement to interest.
- Kobelco may by written notice to the Purchaser end the Contract immediately in any of the following circumstances:
- the Purchaser fails to perform any of its obligations under the Contract or otherwise;
- the Purchaser dies or becomes incapacitated, or ceases, or indicates that it is about to cease to trade;
- anything happens that reasonably indicates that there is a significant risk that the Purchaser is, or will become, unable to pay its debts as they fall due. This includes publication of any unfavourable credit report against the Purchaser, non-payment by the Purchaser of any debt due to any third party, execution or distress being levied against any income or assets of the Purchaser; a meeting of the Purchaser’s creditors being called or held; a step being taken to make the Purchaser bankrupt; and the Purchaser entering into any type of agreement, composition or arrangement with, or assignment for the benefit of, all or any class of its creditors, or being subject to a deed of company arrangement; or
- a step is taken to have a receiver, receiver and manager, provisional liquidator, liquidator or administrator appointed to the Purchaser or any of its assets.
- Kobelco’s rights if it ends Contract
If the Contract is ended by Kobelco under clause 8 and the Purchaser owes Kobelco money, the money becomes payable immediately to Kobelco and bears interest in accordance with clause 8
- The rights and remedies provided in these terms and conditions will not affect any other rights or remedies available to Kobelco.
9. TRADE-IN OF USED MACHINE
- If any amount is allowed by Kobelco by way of trade-in, the credit or price given to the trade-in is conditional upon the following:
- Kobelco accepting an order for the Goods by any stated quotation validity date; and
- delivery of the trade-in to Kobelco at the Purchaser’s expense and in the same state and condition as it was on the date of Kobelco’s appraisal or inspection (if any), all attachments and accessories being included, and there being no undisclosed defect or damage.
- If the Purchaser does not deliver (or if agreed, make available for collection) the trade-in to Kobelco within the time nominated by Kobelco or fails to deliver (or make available) the correct trade-in (including all attachments and accessories) in the state and condition required under clause 9.1.2 or fails to disclose any material condition, deficiency or defect in the trade-in, then the credit or price for the trade-in is a debt owing by the Purchaser to Kobelco. If a used attachment or other part of the Equipment is not available, then a new replacement will be purchased by Kobelco and this cost will be a debt owed by the Purchaser to Kobelco.
- If upon inspection of the trade-in by Kobelco, the trade-in is in such a state that it cannot be reconditioned for resale or is otherwise not of merchantable quality then any value attributed to the sale of the Goods will be reduced accordingly and the difference will be a debt owing by the Purchaser to Kobelco.
- Risk in the trade-in remains with the Purchaser until inspection and acceptance of delivery of the trade-in at Kobelco’s nominated point of delivery, such delivery to be at the Purchaser’s risk and expense.
- The Purchaser warrants that it has or will have unencumbered title to any trade-in at the time of completion of the sale and the trade-in will be free of any and all security interests, charges, pledges, liens or other encumbrance at completion.
- The Purchaser authorises Kobelco to pay any monies given to it for the purposes of removing any encumbrance on the trade-in.
- Kobelco may, without obligation to the Purchaser, refuse to purchase any trade-in at any time until acceptance and inspection of the trade-in or if clause 9.1.2 is breached, and may recover the credit or value given in the trade-in and any loss arising thereof as a debt due from the Purchaser to Kobelco.
- If any amount is allowed by Kobelco by way of trade-in, the credit or price given to the trade-in is conditional upon the following:
10. FORCE MAJEURE
- If Kobelco’s ability to perform its obligations is adversely affected by any cause beyond Kobelco’s reasonable control, then Kobelco may, if it chooses, end the Contract or suspend it for up to 3 months by giving the Purchaser written notice. Kobelco will not be liable for any loss, damage or liability which the Purchaser incurs as a result, whether directly or indirectly.
11. DISPUTE RESOLUTION
- If a dispute arises, either party may notify the other in writing identifying the details of the dispute.
- Within 14 days of notification of a dispute, an executive officer of each party empowered to resolve the dispute must confer at least once to attempt to resolve the dispute. The parties must act in good faith to resolve the dispute.
- If the dispute is not resolved within 7 days of the meeting of the executive officers, either party may commence mediation by referring the dispute to LEADR New Zealand Incorporated. The standard mediation agreement of that body will apply and both parties must comply with those rules.
The Purchaser must not assign, sub-contract or otherwise deal with the Contract or any right or obligation under it except with the prior written consent of Kobelco (which Kobelco is entitled to withhold in its absolute discretion). Failure to obtain the consent of Kobelco constitutes a material breach of these terms and conditions, entitling Kobelco to end the Contract.
- Kobelco is entitled, without obtaining the consent of the Purchaser, to assign, transfer or otherwise dispose of any or all of its rights or obligations under the Contract to a related company of Kobelco or to any other entity which is financially sound and capable of performing all of the obligations of Kobelco under the Contract by giving notice of such assignment, transfer or disposal to the Purchaser.
An order may not be cancelled. Kobelco is entitled to insist on completion of the Contract or at its sole discretion elect to charge the Purchaser Kobelco’s direct and indirect costs and expenses in connection with the cancellation (including without limitation, works required on the Goods and the transport and holding of Goods or standby of personnel until such time as the Goods are re-sold, any demobilisation costs, third party costs for attachments) plus indirect costs, loss of profit and any administration or other costs, expenses or fees incurred by Kobelco whatsoever, as reasonably determined by Kobelco (“Cancellation Costs”) and as a condition of consent to any order cancellation. Kobelco may, at its sole discretion, apply any Cancellation Costs against any credit account for parts and services sales provided by Kobelco to the Purchaser or its related company.
- Description of Goods or Services
The description of the Goods and/or Services is given for identification only and does not create a contract of sale by description.
- All photographs, brochures, weights, illustrations, dimensions or other particulars as to the Goods and/or Services are indicative only. Kobelco has no liability to the Purchaser for any deviations or inaccuracy in such documentation.
- Any representation, promise, statement, description or other information of whatever nature not included in the Contract documentation or made in writing by an authorised company representative of Kobelco is expressly excluded. The Purchaser relies solely upon its own inspection, skill and judgment. No Equipment will be recommended by Kobelco for use in any specific application without supply by Kobelco of a formal applications study.
- Electronic Data Retrieval
The Purchaser grants to Kobelco and its personnel, a non-exclusive and irrevocable licence to enter premises and to access the Equipment (including remotely by electronic means), at no cost to Kobelco, to enable Kobelco to perform data retrieval functions for the purpose of monitoring component life, service intervals or machine availability of the Equipment.
- Physical access to the Equipment will be scheduled wherever possible to minimise disruption to the Purchaser’s operations.
If a clause or part of a clause can be read in a way that makes it illegal, unenforceable or invalid, but can also be read in a way that makes it legal, enforceable and valid, it must be read in the latter way. If any clause or part of a clause is illegal, unenforceable or invalid, that clause or part is to be treated as removed from this document, but the rest of this document is not affected.
The fact that either party fails to do, or delays in doing, something it is entitled to do under the Contract, does not amount to a waiver of its right to do it. Any waiver must be in writing. A written waiver by Kobelco is only effective in relation to the particular obligation or breach in respect of which it is given. It is not to be taken as an implied waiver of any other obligation or breach; or as an implied waiver of that obligation or breach in relation to any other occasion.
If GST is imposed on any supply made in accordance with these conditions, the recipient must pay an additional amount equal to the GST payable in connection with that supply promptly following receipt of a tax invoice. Expressions used in this condition which are defined in the Goods and Services Tax Act 1985 have the same meaning when used herein.
- Governing law
The Contract is governed by the laws of New Zealand, excluding sections 202 – 206 of the Contract and Commercial Law Act 2017 (United Nations Convention on Contracts for the International Sale of Goods). The parties submit to the non-exclusive jurisdiction of the New Zealand courts in respect of all matters relating to the Contract.