SGSL TERMS & CONDITIONS OF SUPPLY

1) GENERAL:

These terms and conditions supersede all previous negotiations and conditions whether oral or written.

Headings are for convenience only and do not affect interpretation.

If the Customer has received these general terms and conditions of supply, any subsequent placing of orders by the Customer will be deemed to amount to acceptance of these terms and conditions even if the customer has not signed these.

2) DEFINITIONS:

“SGSL” means Southern Gas Services Limited, its successors’ and assigns.

“CUSTOMER” means any limited liability company, individual, sole trader, trust or governmental department what so ever, who is granted a trading account with SGSL pursuant to these terms and conditions.

“GOODS” means any goods including: Gas, Bulk Gas, Liquid, Bulk Liquid, supplied to the Customer by SGSL in SGSL owned or leased Cylinders, Dewars, Pallets, or any other ancillary gas storage equipment supplied in respect of each order received from the Customer, and then accepted by SGSL, those goods described in the invoice issued by SGSL to the Customer in respect of the relevant order.

“LEASE EQUIPMENT” means SGSL owned or leased assets including: cylinders, dewars or any gas or liquid containing vessels, cages, pallets, gas generation equipment, valves, cylinder valve caps and any ancillary associated gas equipment not purchased outright by the Customer but supplied by SGSL to the Customer.

“GAS/LIQUID CHARGES” means the cost, type and quantity of gas or liquid ordered by the Customer supplied by SGSL in various size cylinders, dewars, or pallets as identified in SGSL’s invoices. SGSL reserves the right to vary gas / liquid charges upon written notice to the Customer.

“GAS VOLUMES” means the volume of gas based on the Customers estimated annual volumes given to SGSL’s representative upon original quotation. If the Customer fails to purchase these estimated volumes given in the Customers official quotation document, SGSL may vary the charges to reflect SGSL current standard prices according to your actual gas volumes.

“RENTAL CHARGES” means a daily rental will be incurred on all lease equipment supplied by SGSL to the Customer as shown on SGSL’s records. Rental statements outlining any rental charges will be sent out to all Customers accordingly. SGSL reserves the right to vary rental charges upon written notice to the Customer at any time.

“DELIVERY CHARGES” means the Customer shall pay all costs in delivery unless otherwise agreed in writing. SGSL reserve the right to vary delivery charges at any time to reflect changes in fuel and RUC costs outside of SGSL's control.

“NOTICE” means any written notice given by SGSL to the Customer that may be given in any of the following ways:

  1. Posted Letter, Facsimile, or Electronic communication from Southern Gas Services to the Customer as identified on credit application forms (The Customer must keep SGSL fully advised at all times of any changes of postal,delivery, email addresses and/or contact details)

SGSL reserve the right to assume that notice has been received within 3 days of notice being sent.

‘‘OWNERSHIP CYLINDERS” means a cylinder that has been bought outright by the Customer and does not incur a daily rental or is associated with a cylinder exchange system. Proof of purchase MUST be sighted by SGSL to ensure the cylinder in question is in fact a true “Ownership cylinder”. SGSL is not obliged to refill cylinders not owned by it, and is entitled to impose any terms and conditions in relation to the refilling of such cylinders as they see fit. Refilling of ownership cylinders will be done so entirely at the risk of the Customer. SGSL reserved the right to decline refilling of any such cylinders according to SGSL’s Health and Safety Policies. Ownership waiver forms must be completed by the customer to confirm the ownership.

"PPSA" means the Personal Properties Securities Act 1999.

"PPSR" means the Personal Properties Securities Register.

SGSL reserves the right to register a securities interest under either the PPSA or the PPSR or both in relation to any lease equipment on loan to the customer from SGSL.

3) PRICE, INVOICING AND PAYMENT:

The price indicated on the invoice shall be increased by the amount of G.S.T and any other taxes and duties which may be applicable payable by the Customer.

The price quoted to the Customer by an authorised agent or representative of SGSL will be indicated on all invoices. Where no such quotation has been given, the current list price in effect at the day of delivery will be recorded.

The Customer must pay all charges by the nominated date of the relevant invoice issued by SGSL by either cheque or direct debit into SGSL nominated account.

The Customer may not withhold payment or make any deductions for any moneys owed to SGSL without SGSL’s prior written consent.

The Customer must notify SGSL immediately upon receipt of the goods of any errors on an invoice for rectification.

SGSL will have the right to enter the Customer’s premises to audit, inspect and maintain SGSL’s goods and lease equipment upon reasonable notice.

4) DEFAULT IN PAYMENT:

If any event of default in payment due to SGSL occurs, SGSL may at its discretion terminate any agreement governed by these terms.

Where the Customer fails to pay for any goods or leased equipment supplied by SGSL on the due date, SGSL will be entitled to charge, (at SGSL's disgression) and the Customer is required to pay a late payment charge at the rate of $10.00 per month that the amount is outstanding. This is to be added to any unpaid invoice due until full payment has occurred.

In the event of a default occurring, all monies owned by the Customer to SGSL shall immediately become due and payable notwithstanding that the due date has not arisen.

The Customer shall indemnify SGSL for any costs and expenses incurred by seeking recovery by any means for any outstanding payments (Including all legal or other enforcement costs)

If at any time the Customer is in default, SGSL may enter the Customer’s premises and remove any goods and leased equipment supplied by SGSL being held by the Customer. SGSL reserves the right to charge the Customer all costs incurred by SGSL in effecting removal of the goods and leased equipment.

If the customer is in default, or has suspended their account and has assets belonging to SGSL according to SGSL's records, SGSL reserves the right to request return of those said assets with 7 days of notificaton. If after this period has expired, SGSL reserves the right to charge the customer full replacement cost of those said assets,payable immediately via direct debit.

All Company Directors are to be held personally liable regardless of signing priviledges or active status, in relation to SGSL or any third party seeking compensation in relation to any defaulted payments, withheld, lost or stolen lease equipment.

5) CREDIT LIMITS:

If a Customer’s credit limit set by SGSL has been exceeded, SGSL may refuse to accept any further orders from the Customer until such time as all outstanding payments exceeding the credit limit have been satisfied.

6) DELIVERY/COLLECTION OF GOODS:

Any time stated for delivery of goods is an estimate only. SGSL is not liable for any delay in delivery.

If SGSL is unable to deliver or makes a defective delivery of part of the goods ordered, this does not entitle the Customer to terminate any supply agreement or make any claim against SGSL.

Delivery is deemed to have taken place at the time that the goods were unloaded at the Customer’s premises.

The Customer shall pay all costs of delivery unless otherwise agreed.

The Customer must ensure safe and proper access to the Customer’s premises for the purpose of delivery of the goods. If for any reason delivery can not be made due to the Customers act or omission, SGSL may charge additional fees for abortive or part deliveries.

SGSL may suspend deliveries of gas or liquid if the gas/liquid storage, handling or customer’s process equipment is considered by SGSL delivery staff to be unsafe for delivery.

SGSL reserves the right to subcontract the delivery of the goods to the Customer’s site.

The Customer acknowledges that collection of the goods from any SGSL site or authorised agent/reseller will be at their own risk and that it is the Customer’s responsibility for safe handling, transportation and compliance of dangerous goods in accordance with all relevant legislation.

7) FORCE MAJEURE:

In the event of any delay in the delivery or non delivery of goods, or non performance arising from wars, strikes, lockouts, labour disturbances, accidents, governmental restrictions, acts of god, manufacturer delays or defaults, or any cause beyond SGSL reasonable control, then SGSL shall:

  1. Be entitled to cancel or suspend delivery, AND
  2. Not be liable to the Customer for any delay or non-delivery.

8) CUSTOMER RESPONSIBILITY:

The Customer MUST provide free of charge, adequate and safe access to the Customer’s premises, information and facilities (including labour for loading and unloading if required) for SGSL to carry out it’s duties and rights under any agreement with the Customer.

The Customer MUST ensure that all works and materials for which the Customer is responsible comply with industry standards and all legal and statutory requirements and with any advice given by SGSL.

The Customer MUST obtain all necessary consents and comply with all legal obligations in connection with installation, storage, handling, transportation and use of any goods supplied by SGSL to the Customer.

The Customer MUST insure the goods and lease equipment supplied by SGSL for full replacement cost against loss, theft, damage and destruction. Certificates of insurance must be provided to SGSL upon request to verify that insurance has been complied with.

The Customer MUST pay SGSL the current replacement value of any missing leased equipment according to SGSL’s records if the leased equipment is not returned to SGSL within 7 days following a demand for return of equipment due to a default, breach or termination of any agreement with SGSL.

The Customer MUST not obliterate, remove, deface, paint identification marks or labels on SGSL goods and any supplied lease equipment.

The Customer MUST return ALL SGSL goods and supplied lease equipment in a clean and servable manner. If any item supplied by SGSL is returned in a condition that SGSL finds unsatisfactory the Customer MUST pay the costs of restoring SGSL’s equipment to a clean and serviceable condition, and pay new replacement costs if any SGSL owned or leased equipment is lost, stolen or damaged beyond repair.

The Customer MUST not mortgage, pledge, sell lend or part with possession or create a security interest under the PPSA relating to any of SGSL’s goods or leased equipment.

The Customer MUST notify SGSL in writing if the Customer intends to sell it’s business with such notice being provided not less than twenty one (21) days before any such sale takes place. In the event of this occurring, the Customer MUST identify all SGSL supplied goods and Leased Equipment as belonging solely to SGSL. In the event of this occurring, SGSL reserves the right to request the assets returned by a specified date so closure of the account (including upto date rental invoices) can be processed.

The Customer MUST not transfer or assign its rights under this agreement without SGSL’s prior approval and subsequent closure of current account and payment of any outstanding debts to SGSL.

The Customer MUST notify SGSL in writing as soon as reasonably practicable after the Customer becomes aware of any leaks or defect in the supplied goods or leased equipment. The Customer agrees that prompt notification to SGSL of any leak or defect will enable SGSL to identify defective goods and help to rectify the situation in a timely manner.

The Customer MUST not use SGSL owned or leased equipment for the storage or dispensing of any gas or liquid other than the gas or liquid supplied to the Customer by SGSL.

The Customer MUST operate and maintain the SGSL supplied goods and lease equipment at all times in a safe manner in accordance with relevant compliances and legislation.

9) MAINTENANCE:

SGSL shall maintain all the lease equipment in good working order and condition.

SGSL may maintain its leased equipment in accordance with relevant legislation and SGSL’s Operating Manuals. Regular maintenance will be conducted within normal business hours. If this requires interruption of supply SGSL will endeavour to advise the Customers of any delays as soon as possible.

SGSL shall not be liable to the Customer for any loss suffered by the Customer as a result or failure of any part of the lease equipment or any defect in maintenance or repair of the leased equipment by SGSL.

10) RISK AND TITLE:

SGSL retains ownership of all gas supplied to the Customer until such time as the Customer has paid for the gas and all other outstanding amounts payable to SGSL on the due date in full.

SGSL’s leased equipment remains at all times the absolute property of SGSL and is supplied to the Customer for the Customer’s sole use until such time as SGSL requires it’s return.

The Customer will have no rights over any other property of SGSL or its contractor’s bought onto the customer’s site.

The risk in goods sold or supplied to the Customer by SGSL passes to the Customer upon dispatch or collection of those goods.

For the purpose of this provision, the “PPSA” means the Personal Property Securities Act 1999. Until full ownership of the goods has passed,under the PPSA the Customer MUST not:

  1. Give to SGSL a written demand, or allow any other person to give SGSL a written demand requiring SGSL to register a financial charge statement, OR
  2. Lodge a change demand or allow any other person to lodge a change demand, OR
  3. Enter into or accept, or allow any other person to enter into or accept, a financing change statement in relation to a financing statement registered by reference to it under the PPSA, OR
  4. Consent to or enter into any agreement which permits any supplier or other person to register a security interest in respect of the goods (Whether an accession or otherwise) which ranks in priority to SGSL rights as first ranking security holder, OR
  5. Sell, lease, dispose of, create a security interest in, mortgage or part with possession of the goods or leased equipment or any interest in them (or purport or attempt to purport to do such a thing) or permit any lien over the goods or leased equipment or assign SGSL’s rights under these terms and conditions.

11) BREACH AND TERMINATION:

If the Customer (being an individual), commits any act of bankruptcy OR (being a partnership), any of the partners commits any act of bankruptcy, OR (being a company), has a receiver, administrator (or similar) appointed, OR goes into liquidation, Or if the Customer commits any breach of any provision of any agreement with SGSL, then SGSL may by written notice to the Customer either:

  1. Terminate the agreement breached or any part, OR
  2. Suspend performance of all or any of its obligations, at any time during such suspension the agreement breached or any part

Termination will be without prejudice to any accrued rights of either party.

On suspension or termination, SGSL may recover possession of any goods belonging to it (and where relevant, possession and title to any of the Customer’s gas or liquid in SGSL’s leased equipment supplied by SGSL to the Customer at no charge to SGSL), and the Customer irrevocably authorises SGSL to enter it’s premises for this purpose. The rights of this clause are in relation to “consumer goods” as that term is defined in the Credit (Repossession Act) 1997, subject to that act.

On termination under any circumstances the Customer must pay SGSL’s charges for the costs of removal of SGSL supplied goods and leased equipment.

12) LIABILITY AND EXCLUSIONS:

SGSL’s liability for all kinds of loss or damage suffered by the Customer in the context of a supply of goods and leased equipment (or an agreement to make sure a supply) from SGSL to the Customer, irrespective of whether such liability arises in or is claimed on the basis of SGSL’s breach of contract, breach of a term, warranty, or condition implied by statute, negligence or other tort, or breach of any other statutory or equitable duty, and whether the act or omission of SGSL is wilful or otherwise, is excluded and or limited (as the case may be) as set out below:

  1. SGSL’s liability for loss incurred as a direct result of a defect in or failure of the goods and or leased equipment supplied (or agreed to be supplied) by SGSL to the Customer shall be excluded and to the extent permitted by law, the Sale of Goods Act 1908 and all other guarantees, warranties, terms, conditional and representations either express or implied, including without limitation implied warranties of merchantability, and fitness for purpose are expressly excluded. Any claim that the Customer makes under this section (b) must be made within 30 days of receipt of the goods.
  2. SGSL’s liability for indirect loss, economic loss, consequential loss, loss of profit and loss of business opportunity is excluded.

13) GUARANTEES:

Where the Consumer Guarantees Act 1993 applies to this agreement, if the goods and leased equipment are acquired by the Customer for business purposes, the Customer agrees that the Consumer Guarantees Act 1993 does not apply.

Where the Customer supplies the goods and leased equipment in trade to another person acquiring them for business purposes, it must be a term of the Customer’s contract with that person that the Consumer Guarantees Act 1993 does not apply in respect to the goods and lease equipment supplied.

The Customer agrees to indemnify SGSL against all liability or cost incurred by SGSL under the Consumer Guarantees Act 1993 as a result of any breach by the Customer of the obligations in these terms.

The Customer MUST strictly observe any operating and maintenance instructions and procedures specified or advised by SGSL. SGSL shall not be liable for any damage to goods caused by incorrect use, lack of adequate maintenance, incorrect power supply, overload, shock, fall or by the Customer’s fault or negligence.

Repairs and Maintenance on leased equipment supplied to the Customer by SGSL must only be carried out by authorised SGSL personnel.

SGSL accepts no liability for any claim by the Customer or any other person, including without limitation any claim relating to or arising from:

  1. any conditions, warranties, descriptions, representations, conditions as to fitness or suitability for any purpose, tolerance to any conditions, merchantability or otherwise whether expressly or implied by law, trade custom or otherwise, OR
  2. any representation, warranties, conditional or agreement made by any agent or representative, which are not expressly confirmed by SGSL in writing, and the Customer agrees to indemnify SGSL against any such claim.

In any event, SGSL’s liability under any claim shall not exceed the price of the goods purchased by the Customer.

14) PRIVACY ACT:

Upon establishing an account with SGSL, the Customer, proprietors, partners or directors of the Customer authorised SGSL to collect retain and use information about the Customer, such sources (including credit reference agencies and other credit service providers) as SGSL may require for the purposes of administering the Customer’s account, assessing the creditworthiness, enforcing any rights or marketing and goods leased equipment provided by SGSL and to use the information in any dealings with the Customer and authorised any person to provide to SGSL such information about the Customer may require in response to its queries and for any of the purposes set our above , AND

  1. disclose any information about the Customer to credit reference agencies or credit and service providers, or enforcement agencies.

The Customer may on request, see and correct any information held by SGSL relating to that Customer.

The Customer confirms that the above Privacy Act clause has been read and understood.

15) PROPRIETARY INFORMATION:

All information contained within the SGSL website (www.southerngas.co.nz) is the property of Southern Gas Services Limited and or its affiliates. Except for a single copy made for personal use only, you may not reprint, republish, resell or redistribute this information in any form without the prior written permission of the owner(s) of the information which may be protected from copying by national and international copyright laws and treaties.

Southern Shield™, Carbonit™, and Nitrocarb™ are registered trademarks belonging to SGSL. Nothing in the Customer’s agreement with SGSL grants the Customer any right to use any of these trademarks of SGSL or its affiliates.