1.1 Application; The
terms and conditions of sale set out below shall apply
to all agreements for the supply of Goods made by the
Company to the Customer and from the date of this Agreement
shall supersede all previous oral or written proposals,
negotiations, representations, commitments, agreements
and all other communications between the Company and
the Customer relating to the supply of Goods.
1.2 No
servant or 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 and.
conditions 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 signed
by the Customer and a director of the Company.
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 those Acts.
2.1 Acceptance; Acceptance
of delivery of any Goods will be deemed to be acceptance
by the Customer of these terms and conditions,
notwithstanding anything that may be stated to the contrary
in the Customer's inquiries or on the Customer's orders.
3.1 Prices; Prices
are subject to change without notice. All orders
will be filled at prices prevailing at the date
of delivery of the Goods, and the Customer agrees to
pay the prices charged. If GST or other taxes are payable
by the Company in respect of the Goods supplied
or on any amount payable, the Customer shall pay the
Company the amount of that tax. All prices are exclusive
of freight costs, insurance charges and installation
and maintenance costs.
4.1 Payment; Payment
of all accounts shall be made within 14 days
after ("payment date")
the date of the 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 5% per annum above the highest
overdraft rate charged by the Company's trading bank,
for the period for which payment has been overdue.
4.2 Payment must be made in cleared funds
without setoff or deduction of any kind. Payments made
by the Customer shall be applied first in reduction
of interest, liquidated damages and costs due
under clauses 4.1 and 9.1 and then in reduction of
any amounts due pursuant to clause 3.1, and against
such outstanding accounts as the Company determines
(at its sole discretion) and specifies to the
Customer. Until the Company specifies its application
of any moneys, all moneys received shall be held unallocated
and in suspense and no amount due in respect
of any Goods or any invoice shall be reduced, or deemed
reduced, until moneys have been expressly applied
by the Company.
4.3 Without prejudice to any
of the Company's other rights, where any payment
is overdue the Company shall have the right to
discontinue any further credit to the Customer, until
the account is paid, and to cancel all further credit.
5.1 Delivery; Any
date given for delivery is stated in good
faith, but shall not be treated as a condition of
sale, and no claim of any nature shall be made by
the Customer on account of late delivery, howsoever
caused.
5.2 Late delivery shall not constitute
a breach of this agreement by the Company
and the Customer shall not be entitled to cancel
this Agreement because of late delivery.
6.1 Risk; Risk
in the Goods shall pass to the Customer immediately
the Customer takes possession of the Goods
from the Company. Where the Goods are to be delivered
to the Customer, the risk in the Goods shall
pass to the Customer immediately the Goods
leave the Manufacturers premises.
7.1 Title; Without
prejudice to the liability of the Customer
to pay for Goods supplied, all 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 sums owed by the Customer to
the Company. The Company holds a Security Interest
in all Goods and all accessions to the Goods
for payment of those moneys.
7.2 Further,
the Customer acknowledges that until such time
as title passes to the Customer the Customer holds
the Goods as bailee and shall if so requested
forthwith return them to the Company and
the Customer hereby grants an irrevocable right
to the Company or its duly authorized agent to
enter any premises and inspect, repair or maintain
the Goods.
7.3 Until all moneys due to
the Company are paid the Customer: a; shall not sell,
charge or part with possession of the Goods
otherwise than for their full value in the ordinary
course of business; b; shall not alter, obliterate
or deface the Goods (other than for the purpose
of becoming an accession) and shall
not alter, obliterate, deface, cover up or remove any
identity mark indicating that the Goods are
the property of the Company; c; must store the Goods
in such a manner that they are clearly identifiable
as the property of the Supplier and will keep
separate records in respect of the Goods; d;
will hold the proceeds of the Goods on behalf of the
Company in a separate and identifiable account.
7.4 At
the request of the Company the Customer
will promptly do all things that the Company
may require from time to time to give effect
to this Agreement and to ensure that the
Security interest created under this Agreement constitutes
a perfected security interest over the Goods,
including signing all documents and providing
any information the Company requests to enable
it to complete a financing statement or financing
change statement.
7.5 The Customer waives
any right to receive a verification statement under
the PPSA.
7.6 Nothing in sections 114(1)(a)
(receipt of a notice of sale), 117(1)
(distribution of surplus), 133 and 134. (Reinstating
this agreement) of the PPSA shall apply to this
Agreement.
7.7 The rights of the Customer
as debtor in sections 116 (to receive a statement
of account), 119 (to recover surplus),
120(2) and 121 (to receive notice of any proposal
to retain the Goods and object to such
a proposal), 125-127 and 129 (relating to removal
of accessions) of the PPSA shall not
apply to this Agreement. |
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8.1 Termination; Notwithstanding
anything contained in this Agreement, all moneys owed
by the Customer (whether or not then due) 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;
8.1.8 the Customer gives notice under
section 162 of the PPSA;
8.1.9 the Goods are at 'risk' as
defined in the Credit (Repossession) Act
1997 or the PPSA (as applicable).
8.2 Upon the happening
of any one or more of the above events the Company
(without prejudice to any of its other rights) will
be entitled at any time thereafter to:
8.2.1 withhold
without notice deliveries of Goods ordered by the
Customer; 8.2.2 seek damages from the Customer; and/or
8.2.3 enter upon the Customer's premises and/or any
other place where the Goods are stored or thought to
be stored at any reasonable time and in any reasonable
manner (whether or not the Customer is present),
take possession of and sell the Goods, even if the
Company does not have priority over other persons having
a Security Interest in the Goods. The Company and the
Customer agree to contract out of sections 108, 109
and 120 of the PPSA to the extent that they are inconsistent
with this clause.
9.1 Costs; The
Customer shall indemnify the Company and pay
on demand all costs incurred by the Company (including
costs on a solicitor-client basis and debt collectors'
costs) incurred in registration of a financing
statement or a financing change statement, protection
or maintenance of its Security Interest, or the
recovery or attempted recovery of outstanding
moneys and the enforcement of the Terms and Conditions
or the Security interest contained within this
Agreement.
10.1 Warranties; The
Company warrants that the Goods shall be of
merchantable quality and shall conform with the
manufacturer's specifications. No other warranty
or condition shall be implied herein against
the Company by any statute, common law or otherwise
howsoever and no representation or express condition
or warranty shall be binding on the Company unless
it be in writing and signed for and on behalf
of the Company.
10.2 The Company shall not be
liable for any claims for breach of the warranty
contained in clause
10.1 notified to the Company
after the date 1 year from the date of purchase.
11.1 Remedies and Liability for
Indirect Loss; To the extent 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 the replacement of
the Goods by the Company.
11.2 Except as
provided in clause 11.1 the Company shall
be under no liability to the Customer for
any direct, indirect or consequential injury,
loss or damage (including loss of profit)
whatsoever and howsoever arising.
11.3
Should the Company be prevented or delayed
from carrying out its obligations as a
result of any cause whatsoever beyond its
control, it shall be relieved of all obligations
and liabilities incurred under this Agreement
insofar and so long as the performance
of the Company's obligations is impeded,
prevented or delayed.
12.1 Consumer Guarantees Act
1993; Where
this Agreement would otherwise be subject
to the provisions of the Consumer Guarantees
Act 1993 and where any supply pursuant
to this Agreement is a supply for business
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 Guarantee.
Act 1993 and the provisions of the Consumer
Guarantees Act 1993 will not apply as between
the Company and the Customer.
12.2 Where
any of the Goods are subject to any express
warranty given by the Company to remedy
any defect by repairing or replacing
the Goods with Goods of identical type then
the ultimate consumer shall not be able
to exercise its remedies set out in the
Consumer Guarantees Act 1993 without
first giving the Company a reasonable opportunity
to remedy the defect by repair or replacement
in accordance with its express warranty.
13.1 This Agreement and these terms
and conditions shall be governed by the
laws of New Zealand and the New Zealand
courts shall have sole jurisdiction to
adjudicate. in respect of any dispute arising
from this Agreement
14.1 Definitions;
'Goods'
means Pali posts and accessories supplied by the
Company to the Customer.
'Security
Interest' bears
the same meaning as defined in the PPSA
and. Includes the security interest contained
in this Agreement.
'PPSA' means
the Personal Property Securities Act
1999 as amended from time to time and terms
defined in the PPSA shall bear those
defined meanings in this Agreement. |
