Terms & Conditions of supply of goods

Payment

Payment Date

Payment Date shall mean the 20th of the month following delivery of the goods or the date of the invoice
Payment for all goods supplied will be made without deduction on the Payment Date.
If full payment is not made by the customer to the supplier by the Payment Date then:
the customer will be in default under this agreement and the supplier may exercise all of the rights and remedies set out in it and otherwise available at law, and the customer will pay interest on the default monies at the rate of 2.5% per month payable on a daily basis from the due date to the date of remedy of the default including payment of the interest accrued under this provision; and the customer will be liable for all actual expenses (including Solicitor – own client legal costs) incurred by the supplier as a result of the default; and the supplier may withhold the further supply of goods and cancel any particular agreement to supply goods pursuant to clause 12 below.

Price

All goods are supplied at the prices ruling at delivery date and the supplier reserves the right to pass on to the customer any change in price after the date of any quotation. Prices are subject to change without notice.
All prices are exclusive of goods and services tax or any other taxes which are payable by the customer in addition to the price quoted by the supplier.
All prices exclude freight charges. Freight will be charged accordingly.

Return of Goods and Limit of Liability on Claim

All claims against the supplier by the customer must be made in writing within 7 days of receipt of the goods or the supplier’s invoice whichever is the earlier. Goods may only be returned with the written consent of the supplier and then only on the following conditions:
goods must be returned within 7 days of receipt of the supplier’s consent;
return is at the customer’s cost;
goods must be in as new condition and in the supplier’s own original packaging;
the customer must supply complete documentation identifying the customer and the goods, including a copy of the supplier’s original packing slip and invoice; and
the supplier may in its absolute discretion refuse to accept the goods for return on their arrival at the supplier’s premises, and reserves the right in that case to charge the customer a handling fee of 7.5% of the invoiced cost of the goods.
The supplier reserves the right in its discretion to repair or replace goods or to credit a portion of the price in respect of any claims accepted, and then only on the following conditions:
all claims are subject to any express warranty given by the supplier;
all claims are subject to the requirements set out in clause 4.1 above in relation to return of goods;
if the supplier’s requirements in relation to return of goods are not adhered to the customer will be deemed to have accepted the goods and the supplier will have no liability whatsoever in relation to them.
The supplier will use its best endeavours to enforce any guarantees or warranties given by the manufacturer of any goods.
The supplier’s total liability for any loss arising from any defect or non-compliance of the goods or any other breach by the supplier of its obligations under this agreement will not in any circumstances exceed the invoiced price of the goods.
The supplier will not be liable for any consequential indirect or special loss of any kind or any loss caused by the customer’s servants, agents or any other persons whatsoever.
The customer will indemnity the supplier against any claim by the customer’s servants, agents or any other persons in respect of any loss arising from any defect in or non-compliance of the goods or in respect of any other matter whatsoever.
Except as expressly warranted by the supplier in writing, no warranty or condition or guarantee either express or implied is given by the supplier as to the quality, state or condition of any goods or as to their appearance, content or fitness for any particular purpose. The customer acknowledges that it has relied on its own judgment in purchasing the goods.
The supplier will not be liable for any damage whatsoever caused either to the goods or as a result of malfunction of the goods if:
the goods are fitted incorrectly by the customer or its employee or agent; or
the goods are stored, handled, fitted or transported otherwise than in accordance with the supplier’s instructions (if any); or
the goods are in any way adapted to a use for which they are not specifically intended or are repaired using components not recommended or approved by the supplier.

Ownership

Property in the goods remains with the supplier until all money the customer owes to the supplier (whether under this agreement or otherwise) has been paid in full to the supplier or until property in the goods has passed to a third party in accordance with this clause.
When dealing with the goods the customer acts as a principal as between the customer and any third party but acts as an agent as between the customer and the supplier.
The customer is a fiduciary for the supplier and has a fiduciary duty to account to the supplier for the goods. If the goods are sold the customer receives the proceeds of sale as a trustee for the supplier.
The customer will store the goods separately so that they are identifiable as the supplier’s property and keep separate records for the goods. If the goods are sold the customer will place the proceeds of the sale in a separate bank account for the benefit of the supplier.
If the customer is in default under this agreement or any of the circumstances referred to in clause 12 below arises, or the supplier reasonably believes such a circumstance is likely to arise, the customer will at the supplier’s request:
re-deliver the goods to the supplier or do anything reasonably necessary to allow the supplier to retake possession of them and will give access to any land where any goods supplied by the supplier are located to facilitate repossession of goods; and
instruct any third parties who owe money in respect of the goods to pay that money directly to the supplier; and
make any records available which may assist the supplier to trace the proceeds of sale of the goods.
The customer agrees that if the customer fails or is unable to give access to any land for the purpose of Clause 5.5.1, the supplier or its agent may enter (by force if necessary) any premises where the goods are reasonably thought to be stored. The customer irrevocably grants the supplier the right to repossess and resell the goods and to enter premises pursuant to this clause.
The customer agrees not to mix the goods with any other goods before payment is made in full. If the supplier’s goods become mixed with any other goods, property or materials in such a way that they cease to exist as separate goods, the original ownership of the new goods created by that mixing will vest immediately on creation in the supplier as co-owner of the new goods with the owner of any other materials which become part of the new goods. The co-ownership will be calculated proportionally to the value of the various component materials. The supplier’s ownership of the new goods is otherwise on the same terms as the ownership of the goods originally supplied.
The customer has no right to assert against the supplier that the customer owns the goods or the proceeds of sale or any part of them. If the supplier repossesses the goods or the proceeds of sale of goods and after deduction of all money the customer owes to the supplier (including any interest due and including any expense incurred by the supplier in enforcing its rights including legal expenses as between Solicitor and client) there is a surplus, the supplier will pay that surplus to the customer.
The customer will if required by the supplier, execute a registerable charge securing payment of any unpaid monies to the supplier.
The customer consents for the purpose of Section 36(b) Personal Property Securities Act (“PPSA”), to the terms and conditions of the above clauses retaining or reserving title to the goods and that a purchase money security interest under the PPSA is created, and waives the right to receive a verification statement pursuant Section 148 of the PPSA.
The customer and the supplier agree that nothing in Sections 114(1)(a), and 134 of the PPSA will apply to these Terms and Conditions of Supply of Goods.
The customer agrees that the rights of the customer as debtor in Sections 116, 120(2), 121, 125, 129, 131 and 131 of the PPSA shall not apply to these Terms and Conditions of Supply of Goods.

Risk

Risk in any goods supplied to the customer will pass to the customer when the supplier parts with possession of the goods in accordance with this agreement, whether or not ownership has passed to the customer.
The customer undertakes to insure the goods for their full insurable value when the customer assumes the risk under the terms of this agreement, and to hold the insurance policy in trust for the supplier until all money owing to the supplier by the customer has been paid to the supplier.

Warranties and Consumer Guarantees Act

The supplier is supplying goods to the customer for business purposes within the meaning of the Consumer Guarantees Act 1993 and accordingly Section 43 of that Act applies to this agreement.
Where the customer supplies the goods to a person acquiring them for business purposes it will be a term of the customer’s contract with its customer that the Consumer Guarantees Act 1993 will not apply in respect of the goods.
No warranty or condition will be implied against the supplier by any statue, at common law or otherwise and no representation, condition, warranty or variation of these terms and conditions will be binding on the supplier unless it is in writing and signed on behalf of the supplier.
No warranty is given that the goods will be compatible with any particular product or manufacturing system. It is the responsibility of the customer to test and evaluate the appropriateness and compatibility of the goods with the intended product or manufacturing system prior to ordering the goods.
Any goods returned under warranty must be returned in compliance with the requirements of clause 4 above.
No repair facilities or spare parts will be available in respect of the goods, and the supplier expressly contracts out of the statutory warranty contained in Section 12 of Consumer Guarantees Act 1993. The supplier intends this exclusion to apply to goods first supplied to consumers in New Zealand.
The customer gives the following warranties to the supplier:
the customer will inform its customers of the supplier’s exclusion of the statutory warranties implied by the Consumer Guarantees Act 1993 in relation to supplies for business purposes and to repairs and spare parts;
the customer will not store, handle or fit the goods otherwise than in accordance with the supplier’s written use and handling procedures and fitting specifications (if any);
when or before the customer enters into a contract for supply with any of its own customers it will draw its customer’s attention to the supplier’s written use and handling procedures and fitting specifications (if any);
where the customer offers its own express warranty to its own customers the customer will inform its own customers at or before the time of entry into a contract for supply with it’s customers that any warranties the customer gives do not in any way bind the supplier;
if the customer fails to comply with any of the warranties contained in this clause then it will indemnify the supplier against any loss whatsoever arising from that failure.

Information and Privacy Act

For the purpose of facilitating the efficient running of the supplier’s business, the customer authorises the supplier:
to collect all information it may require from any third parties and authorises those third parties to release that information to the supplier; and
to hold all information given by the customer or any third parties to the supplier; and
to use that information, including giving information to any other person to facilitate collection of debts from the customer.
The information will be collected, held and used on the condition that:
it will be held securely at the supplier’s place of business at 1/16 Alpito Place, Pukekohe; and
it will be accessible to any of the supplier’s employees and agents who need access to it for the efficient running of the supplier’s business, and
the customer may request access to and correction of it at any time.

Delivery

The supplier will make every effort to keep to delivery schedules, but will not be liable for any delivery delays whatsoever.
All goods are supplied “ex works”. Point of delivery will be at the supplier’s premises unless otherwise agreed in writing.
Where delivery is agreed as being by rail, sea or road, delivery will be complete when the supplier offers the goods for carriage irrespective of whether the customer refuses to accept or defaults in acceptance of the goods. The supplier will use its preferred carrier for the delivery of the goods.
Any special delivery arrangements requested by the customer will be subject to acceptance or otherwise by the supplier at the supplier’s discretion at the customer’s cost and the goods will be delivered freight forward.
If the customer fails to take delivery of goods on the agreed date it will pay the reasonable costs of storage incurred by the supplier.

Waiver and Forbearance

All the supplier’s rights will remain in full force despite any delay in enforcement. Any waiver of the supplier’s rights must be in writing and signed by a duly authorised officer of the supplier. Any waiver will apply only to the particular matter in respect of which it is given.

Assignment

The supplier is entitled at any time to assign to any other person all or part of any debt the customer owes to the supplier. The assignee will be entitled to claim full rights of set off or counter claim against the customer, its charge holders or successors in respect of the debt or part of the debt which is assigned.
The customer may not assign any of its rights under this agreement whatsoever.

Entire Contract & Precedence

These terms and conditions express the complete agreement between the supplier and the customer. There has been no representation made by either party to the other except as expressly set out in this document. If there is any inconsistency with the terms of any order that may be lodged by the customer these terms and conditions will take precedence. This agreement is subject to change by written notice from the supplier to the customer.

Termination

Once an order has been accepted by the supplier, the agreement to supply those goods (including any unperformed obligations of the supplier) may be terminated by the supplier’s written notice to the customer that no further goods and services will be supplied due to:
the customer’s default under Clause 1 in relation to previous goods supplied by the supplier; or
the customer:
(a) becoming insolvent; or
(b) being subject to the appointment of a receiver, receiver and manager, liquidator or statutory manager; or committing an act of bankruptcy; or
(c) making a scheme or arrangement with its creditors; or
(d) being unlikely to be able to meet its obligations to the supplier, in the opinion of the supplier; or
(e) materially altering the nature of its business or transferring effective control or ownership of its business to any other entity; or
the supplier being unable to supply the goods through any reason beyond its control.
In the event of termination by the supplier in accordance with clause 12.1 no compensation shall be payable to the customer of any nature whatsoever and the supplier shall bear no responsibility or liability for any losses of any nature whatsoever incurred by the customer.

Non-Merger

The agreement and obligations of the parties and the agreement evidencing them will not merge with termination under Clause 12.

Terms of Quotation

Limits of Quotation

Any quotation includes only the goods which are specified in the particular quotation.
Any changes or extras required by the customer in addition to the quotation will be requested in writing and will be at the customer’s cost.
All quotations are subject to these terms and conditions.

Acceptance

Any quotation is open for acceptance for 30 days from the day on which it is dated (“the acceptance period”) unless withdrawn by the supplier before the expiry of the acceptance period.
After the expiry of the acceptance period the quotation is subject to the supplier’s confirmation and the supplier reserves the right to change the quotation.
The customer will pay any deposit required by the supplier on acceptance.

Cancellation

Following the customer’s acceptance of the supplier’s quotation by placing an order the customer will be liable for all design costs, materials ordered, work carried out or services rendered and all the supplier’s other costs in relation to the order.
No purported cancellation of any order by the customer will be effective unless and until accepted by the supplier in writing..

Availability of Materials, Plant, Licences, Permits and Authorities

Any quotation is based on the assumption that:
(a) the supplier is able to secure the manufacture of the product by its manufacturer on the then current terms and conditions; and
(b) the supplier will be able to secure all licences, permits and authorities required from any governmental or other agency either inside New Zealand or overseas which are essential to the supplier’s performance of its obligations.
The supplier reserves the right to cancel any order before commencing work in the event of any change to its disadvantage.
All “ex stock” quotations are subject to availability of the item quoted.

Contract Time

The supplier will not be liable to the customer for any loss or damage caused by delay due directly or indirectly from causes beyond its control.
Time for completion of the order will run from the supplier’s receipt of all instructions and technical information from the customer necessary to complete the order.
The customer will indemnify the supplier against any loss incurred by the supplier as a result of delays caused by the customer.

Specifications

All specifications of any kind submitted with the quotation are sufficiently accurate only for the purpose of quotation.
The supplier reserves the right to rectify any inaccuracy in any quotation specification which becomes apparent when detailed specifications are prepared following acceptance.

Inspection

The customer will not be entitled to inspect incomplete work in detail without the supplier’s specific prior agreement.

Customer’s Property

Any property the customer supplies to the supplier to facilitate any work will be at the customer’s sole risk.

Errors and Omissions

The supplier reserves the right to correct any clerical errors or omissions in any quotation at any time, including but not limited to any errors in computation in any quotation, whether or not the correction results in an increase or decrease in the price or any other change to the quotation or any order placed on the basis of the quotation.

Proceedings

If the supplier initiates legal action against the customer for the recovery of an amount due to the supplier or for any other matter in connection with the supply of goods to the customer, the customer and the supplier agree that the supplier may initiate those proceedings in any court and in any location of its choosing and the customer agrees to submit to the jurisdiction of that court.