These Terms and Conditions may be amended or superseded from time to time by notice given by the Company by any means.

If the Customer does not agree to dddddddddddhe Company’s proposed variations, the contract between the Company and the Customer will terminate.

Where the Customer places a further Order after provision of the amended Terms and Conditions, the Customer is deemed to have accepted the proposed variations.

Nothing in these Terms constitutes a relationship of employer and employee, partnership, principal and agent, or joint venture between the parties.

The whole or any part of any clause of these Terms that is illegal or unenforceable will be severed from these Terms and will not affect the continued operation of the remaining provisions of these Terms.

The failure of a party at any time to insist on performance of any obligation under these Terms is not a waiver of its right to insist on performance of that obligation or to claim damages unless that party acknowledges in writing that the failure is a waiver.

The Company accepts no responsibility for changes in any law which may affect supply.

The Customer agrees to notify the Company in writing at least fourteen (14) days prior to any change whatsoever in ownership structure and, further, indemnifies the Company against any loss or damage that may result from the Customer’s failure to notify the Company of any such change.

The Customer acknowledges that all purchases are made relying solely upon the Customer’s own skill and judgment.

These Terms shall be read and construed in accordance with the laws of the State of South Australia and, where applicable, the Commonwealth of Australia and the Customer submits to the non-exclusive jurisdiction of the courts of South Australia in respect of any dispute or any other matter arising out of these Terms.

Should a dispute arise between the Customer and the Company, either party may refer the dispute to mediation by the Australian Commercial Disputes Centre (ACDC) for resolution in accordance with the Guidelines for Commercial Mediation of the ACDC. Each party must bear its own costs of resolving a dispute under this clause and the parties must bear equally the costs of any appointed person and independent premises used for resolving or attempting to resolve a dispute.

If a dispute is not resolved under subclause 20.1.2 within 30 days, a party that has complied with this clause may terminate the dispute resolution process by giving notice in writing to the other party.

Title in all the Goods supplied shall remain vested in the Company and shall not pass to the Customer until all monies owing to the Company by the Customer together with all collection, repossession and/or legal costs incurred have been paid in full. If any of the Goods are damaged or destroyed prior to the title passing to the Customer, the Company is entitled, without affecting any other rights and remedies under this agreement, to any insurance proceeds payable for the Goods in accordance with the PPSA Aus.

The Goods, whether as separate chattels or as components, and the proceeds from the use or sale of the Goods, shall be stored in such a manner as to be clearly identifiable and traceable as the property of the Company until title has passed to the Customer.

Where the Customer is liable for and has failed to pay for the Goods, the Company may demand at any time until title has passed to the Customer that the Customer returns the Goods or any part of them.

In the event that the Customer defaults in the payment of any monies owing to the Company, the Company and its employees or agents shall have the right to enter without notice upon the Customer’s premises or any other premises where the Goods are known to be stored (and the Customer must ensure that the Company has the right to enter such premises at all times) to repossess the Goods and for this purpose the Customer shall grant reasonable access rights and the Company, its employees or agents shall be entitled to do all things required to secure repossession or render inoperative such Goods or associated equipment by the removal of some component, part or device there from.

The Company may, without notice to the Customer, resell any Goods it repossesses under this clause. In the event that The Company repossess and sells any Goods under this clause, The Company will repay to the Customer such amounts (if any), up to the amount paid by the Customer for the relevant Goods, remaining after deduction of all costs and expenses incurred by The Company in exercising its rights under this clause (including repossession, selling and storage costs, and revaluing the Good to ascertain its resale value). The amount payable by The Company under this clause will be reduced in accordance with any reduction in the value of the Good due to damage while in the possession or control of the Customer.

Unless specifically described as ‘GST inclusive’, any consideration to be paid or provided for a supply by the Company to the Customer does not include any amount on account of goods and services tax, or any similar tax applicable in Australia (‘GST’). Where any supply is subject to GST (other than a supply the consideration for which is specifically described as ‘GST inclusive’), the Customer must, at the same time and in the same manner as the GST exclusive consideration is payable or to be provided for that supply, pay to the Company an amount equal to the GST payable by the Company in respect of that supply.

Other government charges are in addition to prices quoted and are payable by the Customer and if paid by the Company are refundable by the Customer to the Company.

The Customer warrants that the Goods are supplied by the Company to a Customer for the purposes of a business, and that the provisions of the National Credit Code contained in the National Consumer Credit Protection Act 2009 (Cth) do not apply.

If the Customer purchases any Goods from the Company for resupply as, or to incorporate any of the Company’s Goods into goods ordinarily acquired for personal household or domestic use (“Consumer Goods”) the Customer warrants that:

if a Customer supplies the Consumer Goods for resupply, the Customer will ensure that its terms and conditions of supply require the Customer’s customer (and each person in the distribution chain) to include in their supply agreements or conditions of sale obligations requiring their customers to also exclude liability for any claims under all relevant legislation ; and

if the Customer supplies the Consumer Goods directly to an end user/consumer the Customer will do so using terms and conditions of supply which exclude liability for claims to the maximum extent permitted at law under all legislation and in accordance with these terms. but only where the end user/customer acquires the Consumer Goods for business purposes. 20.4.3 Without limiting the preceding clauses, where the Customer purchases the Goods for resupply, the Customer indemnifies the Company to the maximum extent of the law for all claims arising from the resale and use by the Customer’s purchaser.

For the purpose of these Terms and Conditions, as appropriate, any words contained in the subsequent clauses have the respective meanings as defined in the Personal Property Securities Act 2009 (Cth) (“PPSA Aus”) and the parties acknowledge that:

the Customer is the grantor,

the Company is the secured party;

the Goods, which are commercial property, are the collateral; and

attachment occurs on acceptance of the Customer’s Order.

The Customer agrees that where the Goods are supplied on credit by the Company then:

the Customer charges, and agrees to charge, all of the Goods with payment of all amounts owned in accordance with these Terms;

the Customer confirms that the Goods are held on trust for the Company; And that the Customer holds the Goods subject to the powers and rights of the Company contained or implied in these Terms and the PPSA Aus.

The customer acknowledges these terms give rise to a Security Interest in favour of the Company, which the Company may, in its discretion, affect a registration on the PPSA Aus register (in any manner the Company deems appropriate) in relation to any security interest arising under or in connection with or contemplated by these Terms.

The Customer waives its right to receive notice of a verification statement in relation to any registration by the Company on the register.

The Customer agrees to:

promptly execute any documents;

provide all relevant information; and

fully cooperate with the Company and do any other act or thing that the Company requires to ensure that the Company has a perfected security interest in, and has priority over any other security interests in, the Goods or otherwise.

In the event that the Customer does not provide the necessary details to complete a valid financing statement for the purposes of the PPSA Aus, then the Company can complete all such details.

The Customer agrees that, until all monies owing to the Company are paid in full, it shall not sell or grant any other security interest in the Goods including but not limited to:

not allowing the registration of financing change statement in respect of the Security Interest; or

not permitting, granting or agreeing to grant or create another Security Interest in the Goods; without the Company’s prior written consent.

If Chapter 4 of the PPSA Aus would otherwise apply to the enforcement of a security interest arising in connection with these terms, the Customer agrees that the following provisions of the PPSA Aus will not apply to the enforcement of these terms: section 95 (notice of removal of accession), to the extent that it requires the Company to give a notice to the Customer; section 96 (when a person with an interest in the whole may retain an accession); subsection 121(4) (enforcement of liquid assets – notice to grantor); section 125 (obligation to dispose of or retain collateral); section 130 (notice of disposal), to the extent that it requires the Company to give a notice to the Customer; paragraph 132(3)(d) (contents of statement of account after disposal); subsection 132(4) (statement of account if no disposal); subsection 134(1) (retention of collateral); section 135 (notice of retention); section 142 (redemption of collateral); and, section 143 (reinstatement of security agreement).

Notices or documents required or permitted to be given to the Company for the purpose of the PPSA Aus must be given in accordance with the PPSA Aus.

The Company agrees with the Customer not to disclose information of the kind mentioned in subsection 275(1) of the PPSA Aus except in circumstances required by paragraphs 275(7)(b)-(e).

If the Company receives any notice in relation to the Customer under section 64 of the PPSA Aus, all outstanding monies may, at the Company’s discretion, become immediately due and payable.

The Customer agrees to reimburse the Company, upon demand, for all costs and/or expenses incurred or payable by the Company in relation to registering or maintaining any financing statement, releasing in whole or in part the Company’s security interest or any other document in respect of any security interest.

These Terms shall be read and construed in accordance with laws of New Zealand and the Customer submits to the non-exclusive jurisdiction of the courts of New Zealand in respect of any dispute or any other matter arising out of these Terms

Should a dispute arise between the Customer and the Company, either party may refer the dispute to mediation by the New Zealand Commercial Disputes Centre (NZCDC) for resolution in accordance with the Guidelines for Commercial Mediation of the NZCDC. Each party must bear its own costs of resolving a dispute under this clause and the parties must bear equally the costs of any appointed person and independent premises used for resolving or attempting to resolve a dispute.

If a dispute is not resolved under this clause 21.1.2 within 30 days, a party that has complied with this clause may terminate the dispute resolution process by giving notice in writing to the other party.

Title in all the Goods supplied shall remain vested in the Company and shall not pass to the Customer until all monies owing to the Company by the Customer together with all collection, repossession and/or legal costs incurred have been paid in full. If any of the Goods are damaged or destroyed prior to the title passing to the Customer, the Company is entitled, without affecting any other rights and remedies under this agreement, to any insurance proceeds payable for the Goods in accordance with the Personal Property Securities Act 1999 (NZ) (“PPSA NZ”).

The Goods, whether as separate chattels or as components, and the proceeds from the use or sale of the Goods, shall be stored in such a manner as to be clearly identifiable and traceable as the property of the Company until title has passed to the Customer.

The Company may demand at any time until title has passed to the Customer that the Customer returns the Goods or any part of them.

In the event that the Customer defaults in the payment of any monies owing to the Company, the Company and its employees or agents shall have the right to enter without notice upon the Customer’s premises or any other premises where the Goods are known to be stored (and the Customer must ensure that the Company has the right to enter such premises at all times) to repossess the Goods and for this purpose the Customer shall grant reasonable access rights and the Company, its employees or agents shall be entitled to do all things required to secure repossession or render inoperative such Goods or associated equipment by the removal of some component, part or device there from.

The Company may, without notice to the Customer, resell any Goods it repossesses under this clause. In the event that The Company repossess and sells any Goods under this clause, The Company will repay to the Customer such amounts (if any), up to the amount paid by the Customer for the relevant Goods, remaining after deduction of all costs and expenses incurred by The Company in exercising its rights under this clause (including repossession, selling and storage costs, and revaluing the Good to ascertain its resale value). The amount payable by The Company under this clause will be reduced in accordance with any reduction in the value of the Good due to damage while in the possession or control of the Customer.

Unless specifically described as ‘GST inclusive’, any consideration to be paid or provided for a supply by the Company to the Customer does not include any amount on account of goods and services tax, or any similar tax applicable in New Zealand (‘GST’). Where any supply is subject to GST (other than a supply the consideration for which is specifically described as ‘GST inclusive’), the Customer must, at the same time and in the same manner as the GST exclusive consideration is payable or to be provided for that supply, pay to the Company an amount equal to the GST payable by the Company in respect of that supply.

Other government charges are in addition to prices quoted and are payable by the Customer and if paid by the Company are refundable by the Customer to the Company.

Where any Goods are supplied by the Company to a Customer for the purposes of a business, the provisions of the New Zealand Consumer Guarantees Act 1993 (“Consumer Guarantees Act”) will not apply.

If the Customer purchases any Goods from the Company for resupply as, or to incorporate any of the Company’s Goods into goods ordinarily acquired for personal household or domestic use (“Consumer Goods”) the Customer warrants that:

if a Customer supplies the Consumer Goods for resupply, the Customer will ensure that its terms and conditions of supply require the Customer’s customer (and each person in the distribution chain) to include in their supply agreements or conditions of sale obligations requiring their customers to also exclude liability for any claims under the Consumer Guarantees Act; and

if the Customer supplies the Consumer Goods directly to an end user/consumer the Customer will do so using terms and conditions of supply which exclude liability for claims under the Consumer Guarantees Act, but only where the end user/customer acquires the Consumer Goods for business purposes.

The Customer warrants that it will indemnify the Company against any failure by the Customer, its customers or any person in the distribution chain to properly contract out of liability to business end users/consumers under the Consumers Guarantees Act.

The Customer acknowledges and agrees that these Terms constitute a security interest for the purposes of the PPSA NZ and that the Company may register a financing statement(s) to protect the Company’s security interest under these Terms in accordance with the PPSA NZ and as far as applicable in accordance with clause 20.5 without limiting that: the Customer is the grantor,

the Company is the secured party;

the Goods, which are commercial property, are the collateral; and

attachment occurs on acceptance of the Customer’s Order. AND where the Goods are supplied on credit by the Company then:

the Customer charges, and agrees to charge, all of the Goods with payment of all amounts owed in accordance with these Terms;

the Customer confirms that the Goods are held on trust for the Company; and that the Customer holds the Goods subject to the powers and rights of the Company contained or implied in these Terms and the PPSA NZ.

The Customer waives its right to receive notice of a verification statement in relation to any registration by the Company on the register.

The Customer agrees to:

promptly execute any documents;

provide all relevant information; and

fully cooperate with the Company and do any other act or thing that the Company requires to ensure that the Company has a perfected security interest in, and has priority over any other security interests in, the Goods or otherwise.

In the event that the Customer does not provide the necessary details to complete a valid financing statement for the purposes of the PPS NZ, then the Company can complete all such details.

The Customer agrees that, until all monies owing to the Company are paid in full, it shall not sell or grant any other security interest in the Goods including but not limited to:

not allowing the registration of financing change statement in respect of the Security Interest; or

not permitting, granting or agreeing to grant or create another Security Interest in the Goods; without the Company’s prior written consent.

The Customer agrees:

to do anything necessary to assist The Company to obtain and maintain a perfected security interest in the Goods in accordance with the PPSA NZ;

that nothing in sections 114(1)(a), 116, 117(1)(c),119, 120(2), 121, 125, 129 and 131-134 of the PPSA NZ will apply to these Terms;

to waive its right to receive a copy of any verification statement(s) under the PPSA NZ

to pay to the Company all costs and expenses in relation to compliance with any demand given by the Company, or in relation to any application for, or the obtaining of, a court order to maintain any registration in respect of any of the security interests created by the Company under these Terms and serving any such court order on the Customer or the Registrar of Personal Securities; and

Any terms and expressions that are defined in the PPSA NZ shall have the same meaning in these Terms as in the PPSA NZ.

Company means Hoshizaki Lancer Pty Ltd and Hoshizaki Lancer Limited as appropriate.

Credit Account means the provision of credit by the Company on terms reasonably required by the Company.

Customer means the party to this transaction who is deemed to have accepted these terms on provision of a Customer Order.

Customer Order means the order form supplied by the Company which the Customer identifies the Goods (and Services where applicable) being purchased from the Company in accordance with these terms.

Good means the goods supplied by the Company for the purpose.

PPSA Aus means Personal Property Securities Act 2009 (Cth) as varied and amended.

PPSA NZ means Personal Property Securities Act 1999 (NZ) as varied and amended.

Services means the services supplied by the Company.