STANDARD TERMS AND CONDITIONS OF SALE
1.1 The conditions of sale set out below shall apply to all agreements for the supply of goods, plant/equipment and services (“goods/product”) between the Company and the person purchasing the goods (“the Customer”), and shall supersede all oral or written previous proposals, negotiations, representations, commitments, agreements and all other communications between the Company and the Customer.
1.2 No officer, servant, employee or agent of the Company has or is deemed to have any authority to make any representation, warranty or agreement contrary to these terms of sale.
1.3 These terms and conditions of sale shall not be deemed or construed to be modified in whole or in part, except by written amendment of the parties.
1.4 Nothing in these terms and conditions shall in any way limit the rights of the customer under the Consumer Guarantees Act, 1993, or any other Act, except to the extent permitted by that Act.
The Customer’s order for the goods constitutes an offer which together with acceptance by the Company (or despatch of the Goods in the absence of formal acceptance) and these Standard Terms and Conditions of Sale constitutes the contract of sale between Customer and the Company, notwithstanding anything that may be stated to the contrary in the Customer’s inquiries or on the Customer’s orders.
All sales are subject to any trade discount that has been agreed to in writing with the Company and applicable at the time of purchase.
4.1 Payment of all accounts shall be made no later than the 20th of the month (“payment date”) following the date of the Company’s invoice for the goods. In the event that payment is not received on or before the payment date, default interest may be charged by the Company at the rate of 25% per annum for the period for which the payment is overdue. Where any payment is overdue the Company shall be entitled to discontinue any further credit to the Customer, until the account is paid, and to cancel all further credit.
4.2 The price payable by Customer for the Goods will be the Company’s ruling price at the date of acceptance of Customer’s order (or the ruling price at the date of dispatch in the absence of formal acceptance). Should the date of the dispatch extend more than two months beyond the date of acceptance of the order, the price payable by Customer will be the Company’s ruling price at the date of dispatch.
5.1 Any date given for delivery is stated in good faith, but shall not be treated as a condition of sale. No claim of any kind shall be made by the Customer on account of late delivery, howsoever caused. Late delivery shall not constitute a breach of this agreement by the Company, and the Customer shall not be entitled to cancel the agreement because of late delivery. Unless the parties agree in writing to the contrary, delivery of the goods shall be deemed to have been made on the Company’s dispatch of the goods from it’s premises, but subject to clause 16 below.
5.2 Where applicable, a variance of +/- ten percent (10%) in the actual quantity of goods ordered /quoted and supplied shall constitute proper and full delivery by the Company to the Customer.
Risk in the goods shall pass to the Customer immediately the goods are dispatched in accordance with 5.3 above. Where the goods are to be delivered to the Customer, risk in the goods shall pass to the Customer immediately the goods are loaded onto the dispatching vehicle, or when they leave the Company’s premises, whichever shall first occur, and any transporter of the goods shall be deemed to be the agent of the Customer.
7.1 Without prejudice to the Customer’s liability to pay for goods supplied such goods shall remain the property of the Company as legal and equitable owner pending cleared payment in full of all moneys due under this agreement or in respect of any other debt owed by the Customer to the Company. Title shall only be transferred to the Customer when the Customer has paid the full price together with any additional charges set out in this agreement or the invoice accompanying the goods.
7.2 Further, the Customer acknowledges that until such time as title passes to it, the Customer holds the goods as bailee and shall if so requested forthwith return them to the Company in the same condition as when delivered, fair wear and tear excepted, and the Customer hereby grant the Company or its duly authorised agent an irrevocable right to enter any premises and take possession of any goods in respect of which payments are due and owing to the Company.
7.3 Until payment is made in full for the goods the Customer may onsell the goods, but subject to the following conditions:
7.3.1 in any agreement to onsell the goods, the Customer is acting as agent and bailee for the Company, whether the Customer is selling on it’s own account or not; and
7.3.2 the entire proceeds of sale are held in trust for the Company and are not mingled with other moneys or paid into any overdrawn bank account, and shall at all times be readily identifiable as the Company’s money.
8.1 Notwithstanding anything contained in this agreement, the total purchase price shall become immediately due and payable and the Company shall have the right to forthwith cancel this agreement, without prejudice to any of its other rights, upon the occurrence of any of the following events:
8.1.1 the Customer ceases or threatens to cease to carry on business;
8.1.2 the Customer enters into any arrangement or composition with its creditors;
8.1.3 the Customer is unable to pay debts as they fall due;
8.1.4 the Customer commits an act of bankruptcy or becomes bankrupt or proceedings are taken for liquidation of the Customer’s affairs;
8.1.5 the Customer, being a Company goes into liquidation or receivership;
8.1.6 any distress or execution is levied on the Customer;
8.1.7 the Customer breaches any of the terms contained in this agreement.
8.2 Upon the happening of any one or more of the above events the Company will be entitled to repossess and resell goods which remain the property of the Company within the terms of Clause 7.
Should the Customer default in carrying out any obligations under this agreement, and the Company incurs costs and expenses enforcing its rights under this agreement, the Customer shall pay all costs and expenses, including all legal costs incurred as between attorney and client, to the Company upon demand.
10. RETURNED GOODS
10.1 Except as may be required by law, no returned goods shall be accepted by the Company unless such goods are returned within 7 days from the date of delivery and in the same condition and repair as when delivered to the Customer, and unless accompanied by the Company invoice or packing slip provided to the Customer.
10.2 Goods specifically procured or made for the Customer at the Customer’s request shall not be returnable.
10.3 Any freight or transportation charges shall not be refunded to the Customer.
10.4 A 10% re-stocking fee is chargeable and shall not be refunded to the customer.
11.1 The Company gives no warranty that any product supplied (or service performed), will be suitable for the purpose purchased or intended, beyond that offered by the manufacturer or supplier and any conditions and warranties expressed or implied by any statute are hereby excluded to the full extent permitted by such statutes. All other warranties or representations in regard to quality or fitness for any purpose are expressly excluded.
11.2 Goods supplied shall accord with any agreed specification supplied by the Customer, or if there are no such specifications shall be within normal limits of reasonable industrial quality.
11.3 All approved warranty work is to be completed in ‘normal working hours’ of 8.30am – 5.00pm Monday to Friday.
11.4 Equipment parts considered Consumables are excluded from the warranty.
12. REMEDIES AND LIABILITY FOR INDIRECT LOSS
12.1 To the extent that they may be applicable, sections 6 – 10 (inclusive) of the Contractual Remedies Act 1979 are hereby expressly excluded and in the event of any liability of whatsoever nature being established against the Company in any way whatsoever, the Customer’s remedies shall be limited to either:
a) the replacement or repair of the goods by the Company; or
b) damages equivalent to the purchase price of the goods as the Company may in its sole discretion determine; and
c) should the Company be prevented or delayed from carrying out its obligations as a result of any cause whatsoever beyond its reasonable control, it shall be relieved of all obligation and liabilities incurred under this agreement insofar and so long as the performance of the Company’s obligations is impeded, prevented or delayed.
12.2 The Company shall be under no liability whatever to the Customer for any indirect/consequential loss and/or expense (including loss of profit) suffered by the Customer, or any party through the customer arising out of a breach by the Customer of this agreement.
13. CONSUMER GUARANTEES ACT 1993
Where this agreement would otherwise be subject to the provisions of the Consumer Guarantees Act, 1993, as amended, and where any supply pursuant to this agreement is a supply for business or trade purposes, the Customer agrees that the goods are supplied to the Customer for business and/or trade purposes in terms of sections 2 and 43 of the Consumer Guarantees Act, 1993 and the provisions of the Consumer Guarantees Act, 1993 will not apply as between the Company and the Customer.
14. PROPER LAW
This agreement and these terms and conditions shall be governed by the law of New Zealand, and the New Zealand courts shall have sole jurisdiction to adjudicate in respect of any dispute arising from this agreement.
15. PRIVACY ACT 1993
The Customer authorises the Company and its marketing representatives to collect from other persons the Customer’s names and addresses, vehicle details and other personal information which is connected with the marketing of the Company’s products and services, and to use those details for marketing and sales promotion of the Company’s products and to disclose those details to any other person.
16. PLANT SITE PREPARATION, INSTALLATION, COMMISSIONING AND PLANT ACCEPTANCE.
16.1 The Customer shall prepare the premises/site for installation of the equipment and provide all necessary electrical, other componentary and fittings and a suitable electrical and water supply including:
16.2 The Customer will at its expense ensure that site preparation is completed before delivery and the agreed Installation date (unless otherwise agreed with the Company). The Company will, at the Customer’s expense, deliver the equipment to the premises and commence installation on the Installation date; Provided that the Customer gives the Company free and undisturbed access to the installation site. The charges the Customer will pay for this work are covered by the Delivery and Installation Charges specified and agreed. The Company will deliver, assemble and install the equipment.
16.3 If the Customer, without the Company’s prior consent, delays the Installation Date the Customer shall pay the Company all reasonable costs, charges and losses attributable to such delay. In addition, if such delay continues for more than 7 (seven) days after the date the Company notifies the Buyer in writing that the Company is ready to install, the Installation Date will be the date of such notice and full payment for the equipment shall become immediately due and payable.
16.4 Where applicable the Company will subsequent, or in conjunction with installation, commission the equipment/plant. Commissioning is subject to the Customer’s compliance with 16.1, 16.2 and 16.3 above and shall be deemed complete (and the equipment ready for operation) on the completion by the Company of the commissioning specifications agreed between the Company and the Customer. If no such specifications are agreed, then commissioning shall be deemed to be complete on the commercial operation of the equipment, which operation shall be reasonable determined by the Company.
16.5 The Company shall on completion of commissioning provide the Customer with an equipment acceptance document stating that the equipment has been installed, tested and commissioned.