Application of Terms
1. All Goods sold by the Company to (or for the account of) the Purchaser (whether
in the past or in the future) are sold pursuant to these Terms and Conditions
of Sale (“Terms”). By placing an order for Goods, the Purchaser
shall be deemed to have accepted these Terms, whether or not the Company
then supplies the Goods ordered.
Price
2. The Purchaser shall pay the price of the Goods indicated on the invoice,
order form or other similar document issued by the Company.
3. All prices are subject to change without notice.
4. All prices are deemed to be Excise and Duty paid, but exclude GST, which
is shown separately on the Company’s invoices.
5. Where GST or other tax may become payable in respect of the supply of the
Goods, the Purchaser shall pay such tax.
6. The Purchaser shall make all payments due to the Company in full without
deductions, whether by way of set off, counter claim or any other equitable
or legal claim.
7. The Purchaser is bound to pay the price from the time that the Company accepts
the Purchaser’s order . Each accepted order shall constitute a separate
contract for the supply of the particular Goods on these Terms. A quotation
does not give rise to a binding contract in respect of particular Goods until
the Purchaser places an order which is subsequently accepted by the Company.
The Purchaser shall pay any difference between the prices in effect at the
date of quotation and the prices in effect upon delivery of the Goods.
8. The Purchaser agrees to indemnify the Company, upon demand, for all costs
and expenses (including legal fees) incurred by the Company: (a) as a result
(whether directly or indirectly) of the occurrence of an Event of Default (including
upon actual or attempted enforcement of the Security Interest and appointment
of a receiver); and (b) in registering and maintaining any financing statement.
Terms of Payment
9. The Purchaser shall pay the Amount Owing by the due date. Terms of payment
shall be advised by the Company at the time of approving the Purchaser’s
account and may be amended by the Company at its sole discretion.
10. If the Purchaser does not pay the Amount Owing by its due date, the Purchaser
shall pay the Company monthly interest at the default rate of 2% per annum
above the current overdraft rate which the Company has with its Bank in respect
of the unpaid portion of the Amount Owing from its due date until payment in
full is received by the Company. Such interest shall accrue on a daily basis
from the date when payment is due until the date when payment is actually made.
11. The Company shall be entitled to assign to any other person or company
all or any part of the Amount Owing and the assignee shall be entitled to claim
all or part of such indebtedness and shall have the same rights of recovery
as the Company.
Risk and Title
12. Notwithstanding Clause 13, the risk in the Goods shall pass from the Company
to the Purchaser when the Goods are delivered, or when the Company first
makes an attempt to deliver if the Purchaser fails to accept the Goods, or
on the date of a request by the Purchaser to delay delivery.
13. Title in the Goods shall pass from the Company to the Purchaser when the
Purchaser:
(a) pays the Amount Owing in full and the Company has released the Security
Interest; or
(b) resells the Goods pursuant to the authority granted by these Terms.
14. Until title passes from the Company to the Purchaser in accordance with
Clause 13, the following terms shall apply:
(a) The Purchaser shall be deemed to be in a fiduciary capacity as bailee of
the Company is respect of any Goods supplied by the Company;
(b) The Purchaser shall store the Goods in such condition and place that it
is clear that they are owned by the Company;
(c) The Purchaser shall not under any circumstances mix the Goods supplied
by the Company with other goods in any manner whatsoever;
(d) The Company authorises the Purchaser, in the ordinary course of the Purchaser’s
business, to sell the Goods for full consideration. This authority is revoked
immediately if:
(i) an Event of Default occurs; or
(ii) the Company notifies the Purchaser in writing that this authority is revoked;
and
(e) the Purchaser must advise the Company immediately of any Event of Default
or any action by third parties (including any of its creditors) affecting the
Company’s interest in the Goods.
15. The Company may apply any payments received from or on behalf of the Purchaser
in reduction of the Amount Owing in such order and manner as the Company thinks
fit (despite any direction to the contrary and whether before or after the
occurrence of an Event of Default).
16. If the Purchaser resells or uses any Goods before ownership of the Goods
has passed to the Purchaser, the proceeds of such sale or use shall be received
and held by the Purchaser (in whatever form) in trust for both the Purchaser
and the Company. The Company’s interest as beneficiary under that trust
shall be that portion of the proceeds which does not exceed the Amount Owing.
The balance of the proceeds (if any) shall be the Purchaser’s beneficial
interest under that trust.
17. The Company may bring an action for the price of the Goods sold even where
ownership of the Goods may not have passed to the Purchaser.
Personal Property Securities Act 1999
18. Without limiting anything else in these Terms, the Purchaser acknowledges
that:
(a) these Terms create, in favour of the Company, a security interest in
all present and after acquired Goods (being, for the avoidance of doubt,
all the
Purchaser’s present and after-acquired personal property except for any
item of personal property which has not (or which is exclusively the proceeds
of any item of personal property which has not) been supplied by the Company
to (or for the account of) the Purchaser) to secure the payment by the Purchaser
to the Company of the Amount Owing; and
(b) these Terms will apply notwithstanding anything, express or implied, to
the contrary contained in any purchase order (or its equivalent, whatever called)
of the Purchaser; and
(c) the Security Interest shall continue until the Company gives the Purchaser
a final release.
19. The Purchaser undertakes to:
(a) promptly do all things, sign any further documents and/or provide any information
which the Company may reasonably require to enable the Company to perfect and
maintain the perfection of its Security Interest (including by registration
of a financing statement);
(b) give the Company (addressed to the financial controller or equivalent)
not less than 14 days’ prior written notice of any proposed change in
the Purchaser’s name and/or any other change in the Purchaser’s
details (including, but not limited to, changes in the Purchaser’s address,
facsimile number, trading name or business practice).
20. The Purchaser waives its right to receive a verification statement in respect
of any financing statement relating to the Security Interest.
21. To the extent permitted by law, the Purchaser and the Company contract
out of:
(a) section 114(1)(a) of the PPSA; and
(b) the Purchaser’s rights referred to in sections 107(2)(c), (d), (h)
and (i) of the PPSA.
22. The Purchaser agrees that the Security Interest has the same priority in
relation to all amounts forming part of the Amount Owing, including future
advances.
Default
23. If an Event of Default occurs:
(a) the Company may suspend or terminate any contract;
(b) the Amount Owing shall immediately become due and payable notwithstanding
that the due date has not arisen;
(c) the Company may enforce the Security Interest; and/or
(d) the Company may (without the consent of the Purchaser) appoint a receiver
in respect of any Goods and any receiver is authorised to do anything referred
to in these Terms and otherwise to exercise all rights and powers conferred
on a receiver by law.
24. The Purchaser agrees that, at any time after an Event of Default has occurred
and is continuing or at any time if any Goods are at risk, the Company may:
(a) take possession of any Goods; and/or
(b) sell or otherwise dispose of any Goods,
in each case in such manner and generally on such terms and conditions as it
thinks fit and, in each case, otherwise do anything the Purchaser could do
in relation to those Goods. The Company and the Purchaser agree that section
109(1) of the PPSA is contracted out of in respect of particular Goods if,
and only for so long as, the Company is not the secured party with priority
over all other secured parties in respect of those Goods. As the Purchaser’s
agent, the Company (and its employees and agents) may, without prior notice,
enter any land or premises where the Goods are kept in order to take possession
of and/or remove them, without being responsible for any damage caused in doing
so. The Purchaser agrees to procure all other rights (including consents) necessary
to enable, and to indemnify the Company (and its employees and agents) against
any liability incurred in connection with, such entry, taking of possession
and removal. The Company may resell any of the Goods and apply the proceeds
of sale in reduction of the Amount Owing.
Cancellations
25. Where the Purchaser’s order has been accepted a contract for supply
will be deemed to exist and no cancellation, addition, deletion, amendment
or variation of any kind may be made except with the consent of the Company
in writing.
Delivery
26. The Company shall deliver the Goods to the Purchaser’s premises.
Except as provided in clause 30 below, the Purchaser shall indemnify the Company
for any liability or cost incurred by the Company in providing this service,
and shall pay the Company the amount of such liability or cost immediately
upon receiving notice from the Company of such amount (except where the parties
agree in writing that the Company is responsible for such costs).
27. The Company may deliver the Goods by instalments, and each instalment shall be treated as a separate contract under these Terms.
28. If the Company fails to deliver or makes defective delivery of part of the Goods, this does not entitle the Purchaser to cancel the separate contract for that particular instalment (if applicable), or the contract for all the Goods or any other contract or other agreement with the Company.
29. Any time stated for delivery is an estimate only. The Company is not liable for any delay in delivery.
30. Auckland and Christchurch Metropolitan area deliveries are freight free. All orders outside the Auckland and Christchurch Metropolitan areas are freight free on orders of five cases or more. All Goods are forwarded at “Limited Carriers Risk” within the terms of the Carriage of Goods Act 1979.
Claims and Limitation of Liability
31. Subject only to mandatory liability or guarantee imposed by statute, and
without prejudice to any rights granted thereby to the Purchaser:
(a) all warranties, descriptions, representations, or conditions, whether implied
by law, trade, custom, or otherwise and whether relating to fitness, merchantability,
suitability for purpose, or otherwise, and all specific conditions, even though
such conditions may be known to the Company, are expressly excluded.
(b) the Company shall not be liable in any way whatsoever to the Purchaser
or any third party, whether in tort (including negligence), contract, or otherwise,
for any loss or damage whatsoever, whether direct, indirect, special, or consequential,
and all such liability is expressly excluded; and
(c) the liability of the Company in respect of any order of Goods shall in
any event be limited to the lesser of the purchase price of the Goods, the
cost of replacing the defective Goods, and the actual loss or damage suffered
by the Purchaser.
32. In addition to any statutory rights and remedies that the Purchaser may
have, the Company may, at its complete discretion, replace or give credit for
all Goods supplied and established to be defective; provided that the following
conditions are met:
(a) all claims must be received by the Company within seven (7) days of delivery
of the Goods and, where applicable, the dispatch number and/or invoice number
must be quoted by the Purchaser;
(b) all claims must specifically identify the defect and, where possible be
accompanied by the defective Goods or a sample thereof; and
(c) the Company shall have a reasonable opportunity to investigate the claim.
33. If the Company replaces Goods, it shall deliver such Goods to the Purchaser’s
premises at the Company’s risk and expense.
34. If at any time the Purchaser expressly or by implication holds itself out
as acquiring from the Company Goods for resale or Goods for the purposes of
a business, all supplies of Goods to the Purchaser by the Company shall be
deemed to be for the purposes of the Purchaser’s business (as the latter
term is defined in the Consumer Guarantees Act 1993). In such event, as between
the Company and the Purchaser, the guarantee provisions of the Consumer Guarantees
Act 1993 are expressly excluded and shall not apply to any supplies of Goods
by the Company to the Purchaser.
Credit Balances
35. The Purchaser may not assign any credit balance which it may have with
the Company and undertakes not to attempt any such assignment.
Non-Waiver
36. If at any time the Company does not exercise any right or remedy available
to it under these Terms or grants the Purchaser time or any other indulgence,
the Company shall not be construed as having waived that right or remedy
or its right to later exercise that or any other right or remedy.
Severability
37. Where any provision of these Terms is rendered void, unenforceable, or
otherwise ineffective by operation of law, that shall not affect the enforceability
or effectiveness of any other provision in these Terms.
Variation of Conditions
38. These Terms may only be varied by the Company, in its absolute discretion,
and the only circumstances in which any variation to these Terms will apply
are where a duly authorised representative of the Company has expressly agreed
in writing to that variation. In the event that any of these Terms are in
conflict with the terms of any other written agreement pursuant to which
the Company provides Goods to the Purchaser, the terms of such other written
agreement shall prevail.
Circumstances Beyond the
Company’s Control
39. The Company shall not be liable for any failure to supply Goods
or meet any other obligation owed to the Purchaser where such a failure
results from
fire, flood, industrial dispute, act of government (such as a change in legislation,
regulation, or order made under legislative authority), or other circumstances
beyond the Company’s control.
Rights, Powers and Remedies
40. The rights, powers and remedies provided for in these Terms are in addition
to, and do not limit or exclude (or otherwise adversely affect), any right,
power or remedy provided to the Company by law.
Governing Law
41. These Terms are governed by and construed in accordance with New Zealand
law, and the parties hereby submit to the non-exclusive jurisdiction of the
courts of New Zealand.
Definitions
42. In these Terms:
“Amount Owing” means,
at any time, the unpaid price charged by the Company for the Goods,
and any other sums
which the Company is entitled to charge under these Terms or which are
otherwise owing by the Purchaser to the Company (in whatever capacity).
An “Event of Default” means an event where:
(a) the Purchaser fails to comply with these Terms or any other agreement with
the Company; or
(b) the Purchaser is subject to any event which is in the nature of dissolution,
winding up, bankruptcy, liquidation, insolvency or receivership, or which generally
precedes such an event; or
(c) an event occurs or information becomes known to the Company, which in the
Company’s opinion, might materially affect the Purchaser’s creditworthiness,
the value of the Goods the subject of the Security Interest, or the Purchaser’s
ability or willingness to comply with its obligations under these Terms or
any other agreement with the Company; or
(d) any guarantor of the Purchaser’s obligations under these Terms is
in default under any agreement with the Company (in any capacity).
“Goods” means all goods supplied from time to time by the Company
to the Purchaser, provided that:
(a) (but solely for the purpose of the application of the PPSA) where the goods
supplied are inventory of the Purchaser, then all references to Goods in these
Terms shall, in respect of those goods, be read as references to inventory
for so long as they are held as inventory; and
(b) where the goods supplied are not, or are no longer held as, inventory of
the Purchaser, then all references to Goods in these Terms shall, in respect
of those goods, mean the goods described in any one or more of the relevant
order form, packing slip or invoice (or its equivalent, whatever called) prepared
by the Company and relating to those goods, on the basis that each such order
form, packing slip or invoice (or its equivalent) is deemed to be assented
to by the Purchaser, incorporated in, and form part of, these Terms,
and (unless the context requires otherwise) includes all proceeds of such Goods
and any product or mass which the Goods subsequently become part of.
“person” includes a corporation, association, firm, company, partnership
or individual.
“PPSA” means the Personal Property Securities Act 1999.
“Security Interest” means the security interest provided for by these
Terms.
43. References to the PPSA, the Consumer Guarantees Act 1993 and the Privacy Act 1993 include that legislation as it is from time to time amended, re-enacted or substituted and any statutory instruments, regulations and orders issued under such legislation.
44. A reference to any party under these Terms includes that party’s successors and permitted substitutes and assigns.
45. Unless the context otherwise requires, words and phrases have the meanings given to them in, or by virtue of, the PPSA.
