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1.  Definitions

1.      “The Agreement” shall mean the agreement governing Smith’s Tech-Air NZ & Flight Services provision of services and/or supply of the Goods to the Customer, being these terms and conditions unless the parties have agreed in writing to vary these.

2.      “Authorised Person” shall mean any holder of a position within Smith’s Tech-Air NZ or Flight Services approved by the proprietors to act as an authorised person and identified as such to the customer.

3.      “Asset” shall mean any aircraft, part or component thereof, furnished by or on behalf of the Customer and which upon or in relation to Services are to be performed by Smith’s Tech-Air NZ or Flight Services.

4.      “STANZ”  shall mean any person acting on behalf of and with the authority of Smith’s Tech-Air NZ and Flight Services\

5.      “Customer” shall mean the customer (or any person acting on behalf of the customer) that has authorised work to be carried out by “STANZ”.

6.      “Equipment” shall mean any equipment supplied on hire by STANZ to the Customer and as described on the invoices, estimates or any other form as provided by STANZ to the Customer (and where context permits shall include any supply of Services as herein defined).

7.      “Guarantor” means any person or entity who agrees to be liable for the debts of the Customer

8.      “Goods” shall mean goods, parts, and/or components supplied by STANZ (and where context permits shall include any supply of Services as herein defined) and includes goods described on any invoices, estimates or any other forms as provided by STANZ to the Customer.

9.      “Services” shall mean all services supplied by and work performed by STANZ to/for the Customer and includes any supply of Goods as defined above and work authorised and any such other unforeseen and additional work as STANZ may in its discretion consider necessary, acting reasonably, and all transport, freight, storage, hangarage, inspections, modifications and testing ancillary thereto.

10.    “Price” shall mean the price payable for the Goods as agreed between STANZ and the Customer in accordance with Clause 3 of this contract.

2.  Acceptance

1.      Any instructions received by STANZ from the Customer for the supply of Goods and/or Services and/or the hiring of the Equipment shall constitute acceptance of the terms and conditions contained herein.

2.      Where more than one Customer has entered into this agreement, the Customers will be jointly and severally liable for all payments of the Price.

3.      Upon acceptance of these terms and conditions by the Customer these terms and conditions are binding and may only be varied with the written consent of STANZ.

4.      The Customer shall give STANZ seven (7) days’ notice prior to any change in the Customer’s details (including but not limited to, change in address, contact numbers).

3. Price and Payment

1.      At STANZ sole discretion the Price shall be as indicated on invoices provided by STANZ to the Customer.

2.      GST  and any other taxes that may be applicable will be added where required

3.      STANZ is hereby authorised and instructed to perform the Services and/or supply the Goods and/or hire the Equipment to the Customer and the Customer agrees to pay, without deduction, STANZ charges at that time and in that manner as STANZ may require. The Customer must notify STANZ in writing, of any error on an invoice. Where credit arrangements have been agreed by STANZ, in writing, payment shall be made within 30 days of the date of STANZ invoice unless otherwise agreed.

4.      The Customer warrants to STANZ that, if the Customer is not the owner of the Asset on which Services are to be provided or any Goods fitted on/or provided for, he/she has the approval and consent of the owner as its agent to authorise both the Services to be performed and the supply of the Goods in compliance with the Agreement, and agrees liability for payment of the Services and/or Goods provided pursuant to this Agreement.

4. Delivery of Goods, Assets and Services

1.      At STANZ sole discretion delivery of the Goods, Assets and Services shall take place when the Customer takes possession of such at STANZ nominated address or the Customer takes possession at the Customer’s nominated address.

2.      Any costs for delivery are in addition to the Price, and for the Customer’s account

3.      The Customer shall make all arrangements necessary to take delivery of the Goods and/or Asset whenever they are tendered for delivery. In the event that the Customer is unable to take delivery following notification by STANZ to the Customer to do so or that the Services have been completed, then STANZ shall be entitled to charge a reasonable fee for delivery and/or may charge a reasonable hangarage or storage charges in respect thereof from the date of such notification until collection. STANZ reserves the right to terminate any storage or hangarage arrangement upon giving seven (7) calendar days’ notice to the Customer.

4.      Delivery to a third party nominated by the Customer is deemed to be delivery to the Customer for the purposes of this agreement.

5.      The failure of STANZ to deliver shall not entitle either party to treat this contract as repudiated.

6.      STANZ shall not be liable for any loss or damage whatever due to failure by STANZ to deliver the Goods (or any of them) promptly or at all.

5. Risk

1.      If  STANZ retains ownership of the Goods nonetheless, all risk for the Goods passes to the Customer on delivery.

2.      If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Customer, STANZ is entitled to receive all insurance proceeds payable for the Goods.  The production of these terms and conditions by STANZ is sufficient evidence of STANZ rights to receive insurance proceeds.

3.      Any Goods or Asset whilst in the care and custody of STANZ premises, all care will be taken against any loss or damage that may occur, however all Goods and Assets remain at the Customer’s risk.

6. Title

1.      STANZ and Customer agree that ownership of the Goods shall not pass until:

The Customer has paid STANZ all amounts owing for the particular Goods, and the Customer has met all other obligations due by the Customer to STANZ in respect of all contracts and agreements between STANZ and the Customer

2.      Payment by any form other than cash shall not deemed to be payment until that form of payment has been honoured, cleared or recognised and until then STANZ ownership or rights shall continue

3.      Until such time that ownership passes to the Customer, even if the Goods are converted into, or form part of, other products the parties agree that STANZ will be the owner of the end products.

4.      If the Customer fails to return the Goods then STANZ or STANZ agent may enter upon and into land and premises owned, occupied or used by the Customer, or any premises where the Goods are situated and take possession of the Goods. STANZ will not liable for any reasonable loss or damage suffered as a result of any action by STANZ under this clause.

5.      STANZ may, at its sole discretion, require a deposit and/or progress payments for the provision of Goods or Services to be provided.

7. General

1.      The Customer hereby disclaims any right to rescind, or cancel any contract or agreement with STANZ, or to sue for damages or to claim restitution out of any misinterpretation made to the Customer by STANZ and the Customer acknowledges that the Goods and services are provided relying solely upon the Customers skill and judgement

2.      Notwithstanding any provision in any subject agreement/s providing for the contrary, the Customer agrees to indemnify, and to keep indemnified, STANZ against any action, claim, proceeding, demand, damages, cost, expense liability or loss (including but not limited to costs on a solicitor/client basis and any indirect/consequential and such loss arising in any manner), which STSANZ may suffer or incur arising out of or connected with the Agreement between the parties, the provision of Services and/or supply of Goods and/or the hiring of the Equipment.

8. Defects

1.      The Customer shall inspect any Parts supplied or installed on the aircraft and/or engine and/or propeller and shall within fourteen (14) days of delivery (time being of the essence) notify STANZ of any alleged defect, damage or failure to comply with the description. The Customer shall afford STANZ an opportunity to inspect the Parts within a reasonable time following delivery if the Customer believes the parts are defective in any way. If the Customer fails to comply with these provisions the parts shall be presumed to be free from any defect or damage. For defective parts which STANZ has agreed in writing that the Customer is entitled to reject, STANZ liability is limited to either (at STANZ discretion) replacing the parts or repairing the part.

9. Returns

1.      Returns will only be accepted if the Customer has complied with clause 8 and STANZ has agreed in writing to accept the return of the parts; and if the parts are returned at the Customer’s cost within fourteen (14) days of the delivery date and STANZ will not be liable for parts which have not been stored or used in a proper manner and the parts are returned with any or all brochures, instruction materials in as new condition as is reasonably possible in the circumstances.

2.      STANZ may (in its discretion) accept the return of parts for credit but this may incur a handling fee of ten percent (10%) of the value of the returned parts plus any freight.

10. Warranty

1.      Subject to that set out in sub-clauses11.2, 11.3, 11.4, 11.5, 11.7,  no claim shall be recognised unless received by STANZ in writing, within seven (7) days of the date of delivery of the Goods or Asset worked on by STANZ or performance of the Services. Such claim notification shall be accompanied by the evidence that proves STANZ faulty workmanship. The Customer shall at all times follow STANZ instructions and procedures in respect of the disposition and return of Goods or Asset the subject of any claim hereunder. STANZ liability is limited to either (at STANZ sole discretion) replace or remedy the workmanship. The conditions applicable to the warranty given by Clause 11 (1) are:

2.      The warranty shall not cover any defect or damage which may be caused or partly caused by or arise through failure on the part of the Customer to properly maintain the Goods and/or Asset or failure on the part of the Customer to follow any instruction or guideline provided by STANZ

3.      Any use of the Goods and/or Asset otherwise than for any application specified on the corresponding quote or order form or the continued use of the Goods and/or Asset after any defect became apparent or would have been apparent to a reasonably prudent operator or fair wear and tear or act of God.

4.      The warranty shall cease and STANZ thereafter in no circumstances be liable under the terms of the warranty if the subject of the claim is repaired, altered or overhauled without STANZ prior written consent.

5.       In respect of all claims STANZ shall not be liable to compensate the Customer for any delay in either replacing or remedying the workmanship or in properly assessing the Customer’s claim.

6.      For goods not manufactured by STANZ, the warranty shall be the current warranty provided by the manufacturer of the Goods. STANZ shall not be bound by or responsible for any term, condition, representation or warranty other than which is given by the manufacturer of the Goods.

7.      In the instance of refurbished Goods the Customer acknowledges that he/she accepts the same with all faults and that no warranty is given by STANZ as to the quality or suitability for any purpose and any implied, statutory or otherwise, is expressly excluded. STANZ shall not be responsible for any loss or damage to the Goods, or caused by the Goods, or any part thereof however arising. If the Customer is acquiring Goods for the purposes of a trade or business, the Customer acknowledges that the provisions of the Consumer Guarantees Act 1993 do not apply to the supply of Goods by STANZ to the Customer

11. Consumer Guarantees Act 1993

If the Customer is acquiring Goods for the purposes of a trade or business, the Customer acknowledges that the provisions of the Consumer Guarantees Act 1993 do not apply to the supply of Goods by STANZ to the Customer.

12. Default & Consequences of Default

1.      The Customer agrees that notwithstanding any provision in any subject agreement(s) providing to the contrary, in the event that  he/she  shall fail to make payment as aforesaid or where any payment is overdue, STANZ shall be entitled to:

2.      Charge a late payment fee on any overdue amount, from the date it becomes due until the date payment is received at a rate of 1.50% per month

3.      Stop supply immediately under the Agreement and/or any other agreement with the Customer

1.      Without being in breach of any such agreement(s), and where applicable, the Customer releases STANZ from any obligation to pay liquidated damages and/or any other penalties that might otherwise apply

2.      Without prejudice to any accrued rights and remedies of STANZ under any of the agreement(s) and

3.      Payment will become immediately due to STANZ for all goods and services supplied under any agreement with the Customer with Clause 13.2 to apply if payment is not immediately received.

4.      Sell or agree to selling any or all interest in the Asset by auction, private treaty or tender, for cash or on credit in one lots or in several, with or without special conditions as to title or the time or mode of payment of purchase money, or on such terms as STANZ in its absolute discretion thinks fit. All monies received by STANZ as a result of the exercise of its rights under this provision may be applied in the following order: payment of all costs, charges, expenses and disbursements incurred in or incidental to the exercise or attempted exercise of STANZ rights under this provision; payment of monies owing to STANZ and the surplus shall belong to the Customer but does not carry interest.

5.      For clarity, if any part of the monies due to STANZ remains outstanding after applying the proceeds of any sale of Asset in accordance with this sub clause, STANZ may take further action to procure payment of such parts of monies owing to STANZ.

6.      The parties agree that where a written and signed variation of any such agreement referred here is necessary for that set out in clause 13.1 to take effect, then either this clause 13.1 constitutes such variation or the parties agree to waive such requirement.

7.      If the Customer defaults in payment of any invoice when due, the Customer shall indemnify STANZ from and against all costs and disbursements by STANZ in pursuing the debt including legal costs on a solicitor and client basis and STANZ collection agency costs.

8.      STANZ will not be liable to the Customer for any loss or damage the Customer suffers because STANZ has exercised its rights under this clause.

9.      Without prejudice to STANZ other remedies STANZ shall be entitled to cancel all or any parts of any order of the Customer which remains unfulfilled and all amounts owing to STANZ shall, whether or not due for payment, become immediately payable in the event that any money payable to STANZ becomes overdue, or in STANZ opinion the Customer will be unable to meet its payments as they fall due OR the Customer becomes insolvent, calls a meeting with its creditors or enters into an arrangement with creditors, or makes assignment for the benefit of creditors OR a receiver, manager, liquidator or similar person is appointed in respect if the Customer or any Asset of the Customer.

13. Security and Charge

1.      Despite anything to the contrary contained herein STANZ may however:

·       Where the Customer and/or Guarantor is the owner of any asset (including but not limited to, aircraft or parts thereof) capable of being charged, both the Customer and/or Guarantor agree to mortgage and/or charge all their joint and/or several interest in the said asset to STANZ or STANZ nominee to secure all amounts and other monetary obligations payable under these terms and conditions. The Customer and/or Guarantor acknowledge and agree that STANZ shall be entitled to lodge where appropriate a caveat or interest, which shall be withdrawn when all payments and other monetary obligations payable has been met.

·       Should STANZ elect to proceed in any manner in accordance with this clause and/or sub-clauses the Customer and/or Guarantor shall indemnify STANZ from and against all STANZ costs and disbursements including legal costs on a solicitor and own client basis

·       The Customer and/or Guarantor agree to irrevocably nominate constitute and appoint STANZ or STANZ nominee as the Customer’s and/or Guarantor true and lawful attorney to perform all necessary acts to give effect to the provisions of this clause 14

14. Cancellation

1.      In the event the Customer cancels delivery of Goods, Equipment nor Services, the Customer shall be liable for any loss incurred by STANZ (including but not limited to any loss of profits) up to the time of cancellation.

15. Unpaid Seller/Service Provider Rights

1.      Where the Customer has left any item, including but not limited to an Asset, including parts and documents with STANZ for repair, modification or for STANZ to perform any other Service in relation to the item and/or Asset and STANZ has not received or been tendered the whole of the Price, or the payment has been dishonoured, STANZ shall have:

a)      A lien on such item and/or Asset

b)      The right to retain the item and/or Asset until all monies owing are paid in full

c)       A right to sell the item

d)      The right to retain all or part of the proceeds of the sale of the item and/or Asset and any interest due to STANZ and any costs associated with such sale.

e)      The lien of STANZ shall continue despite the commencement of proceedings or judgment for the Price having been obtained.

16. Equipment Hire

1.      The Equipment shall at all times remain the property of STANZ and is returnable upon demand by STANZ. In the event the Equipment is not returned to STANZ in the condition it was delivered STANZ retains the right, at its discretion, charge the price of repair or replacement of the Equipment.

2.      The Customer shall keep the Equipment in their own possession and control and shall not assign the benefit of the Equipment nor be entitled to lien over the Equipment.

3.      The Customer shall not make any additions or alterations to the Equipment, deface or remove any identifying marks, plate or number in or on the Equipment or interfere with the Equipment in any other way.

4.      The Customer shall keep the Equipment clean and in god order as delivered and comply with any maintenance schedule as advised by STANZ to the Customer.

5.      The Customer accepts full responsibility for the safe keeping of the Equipment and agrees to insure, or self-insure, the Equipment and indemnifies STANZ against any loss or damage including but not limited to accident, fire, theft, and all other usual risks.

6.      The Customer will effect Public Liability insurance cover for any loss, damage or injury to property or persons arising from use of the Equipment and will not use, or permit to be used in any manner that would permit any insurer to decline a claim.

17. General

1.      These terms and conditions issued by STANZ shall have full force and effect.

2.      These terms and conditions and any contract to which they apply shall be governed by the laws of New Zealand

3.      The Customer shall not be entitled to set off against or deduct from the Price any sums claimed owed or claimed to be owed to the Customer by STANZ.

4.      STANZ may license or sub-contract all or any part of it rights and obligations without the Customer’s consent.

5.      The failure by STANZ in any circumstances to enforce any provision in the absence of an express and specific statement in writing by a person authorised by STANZ has waived the said performance and will affect STANZ rights to subsequently enforce the provision.