Terms and Conditions
2.1 The Buyer by signing this Agreement agrees that until this Agreement is terminated any Goods supplied by the Seller to the Buyer whether at the time of execution of this Agreement or in the future shall be subject to the terms and conditions of this Agreement and shall form part of the Collateral under this Agreement.
2.2 Notwithstanding clause 2.1 the Seller need not accept any further order from the Buyer.
2.3 Once accepted this Agreement is irrevocable and can only be rescinded in accordance with this Agreement or with the written consent of a Director of the Seller.
3.1 The Goods shall be as described on the invoices, quotation, work authorisation, sales order or any other work commencement forms as provided by the Seller to the Buyer.
4. Price And Payment
4.1 At the Sellers sole discretion the Price shall be as indicated on invoices provided by the Seller to the Buyer in respect of Goods supplied.
4.2 Time for payment for the Goods shall be of the essence and will be stated on the invoice, quotation, work authorisation, sales order or any other work commencement form. If no time is stated then payment shall be due on the 20th of the month following the invoice date.
4.3 Payment will be made without set off or deduction and in a method agreed between the Buyer and the Seller.
4.4 Unless expressly stated in writing the Price excludes GST.
5 Delivery Of Goods
5.1 Delivery of the Goods shall be made to the address specified in the invoice, quotation, work
authorization, sales order or other work commencement form. The Buyer shall make all
arrangements necessary to take delivery of the Goods whenever they are tendered for
6.1 All risk for the Goods passes to the Buyer on delivery notwithstanding the Seller may retain
ownership in accordance with clause 10. If any of the Goods are damaged or destroyed prior
to ownership passing to the Buyer, the Seller is entitled, without prejudice to any of its other
rights or remedies to receive all insurance proceeds payable in respect of the Goods. This
applies whether or not the Price has become payable under this Agreement. The production
of these terms and conditions by the Seller is sufficient evidence of the Seller’s rights to
receive the insurance proceeds without the need for any person dealing with the Seller to
make further enquiries.
7.1 The Seller warrants that all Collateral is reasonably fit for the purposes disclosed and no
responsibility will be accepted by the Seller for any defective item unless written notice of
the defect is forwarded to the Seller and the Seller has been given the opportunity of first
rectifying the defect in accordance with clause 7.2.
7.2 The Buyer shall inspect the Goods on delivery and shall within twenty one (21) days of
delivery notify the Seller in writing of any alleged defect, shortage in quantity, damage or
failure to comply with the description or quote. The Buyer shall afford the Seller an
opportunity to inspect the Goods within a reasonable time following written notification of
any alleged defect. If the Buyer shall fail to comply with these provisions the Goods shall be
conclusively presumed to be in accordance with the terms and conditions and free from any
defect or damage.
8 Consumer Guarantees Act 1993
8.1 If the Buyer acquires the Goods for business purposes it is agreed that the Act does not
8.2 If the Buyer on-supplies the Goods the Buyer must:
a. Do so on the basis that the Act does not apply where the Goods are on-supplied for
business purposes, and
b. Notify consumers that neither the Seller nor any manufacturer undertake that repair
facilities will be available.
9 Default And Consequences Of Death
9.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due
until the date of actual payment at a rate of 2.5% per calendar month.
9.2 The Buyer shall indemnify the Seller from and against all the Seller’s costs of collection and
disbursements including on a solicitor client basis.
9.3 Without prejudice to any other remedies the Seller may have, the Seller may suspend or
terminate the supply of goods to the Buyer and any of its other obligations if the Buyer is in
breach under this Agreement. The Seller will not be liable to the Buyer for any loss or
damage the Buyer suffers because the Seller exercised its rights under this clause.
10.1 Property in the Goods shall not pass until:
a. The Buyer has paid all amounts owing for all Goods provided by the Seller to the Buyer; and
b. The Buyer has met all other obligations due by the Buyer to the Seller in respect of all Agreements between the Seller and Buyer.
10.2 It is further agreed that:
a. The Goods and proceeds of the sale of the Goods shall be kept separate until the Seller has received payment for the Goods and all other obligations of the Buyer are met.
b. The Buyer shall not deal with the proceeds arising from the sale of the Goods of the Seller in any way which may be adverse to the Seller.
c. Until such time as ownership of the Goods shall pass from the Seller to the Buyer the Seller may give notice in writing to the Buyer to return the Goods or any of them to the Seller. Upon such notice the rights of the Buyer to obtain ownership or any other interest in the Goods shall cease.
d. If the Buyer fails to return the Goods to the Seller then the Seller or the Seller’s agent may enter upon and into land premises owned, occupied or used by the Buyer, or any premises as the invitee of the Buyer, where the Goods are situated and take possession of the Goods without being responsible for any damage thereby
e. The Buyer shall not charge the Goods in any way nor grant nor otherwise give any interest in the Goods while they remain the property of the Seller.
f. The Seller may require payment of the Price or the balance of the Price due together with any other amounts due from the Buyer to the Seller arising out of this Agreement, and the Seller may take any lawful steps to require payment of the amounts due and the Price.
g. The Seller can issue proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods may not have passed to the Buyer.
11 Personal Property Securities Act 1999
11.1 Upon assenting to these terms and conditions the Buyer acknowledges and agrees that:
a. This Agreement constitute a security agreement for the purposes of section 36 of the Personal Property Securities Act 1999 (“PPSA”); and
b. The Seller has a security interest in all Collateral supplied by the Seller to the Buyer and accounts receivable arising as proceeds from the sale of that Collateral.
11.2 The Buyer undertakes to:
a. Provide verification of any information relating to the Buyer if required by the Seller; and
b. Sign any further documents and/or provide any further information, such information to be complete, accurate and up-to-date in all respects, which the Seller may reasonably require to register a financing statement or financing change statement on the Personal Securities Register; and
c. Indemnify, and upon demand reimburse, the Seller for all expenses incurred in registering a financing statement of financing change statement on the Personal Property Security Register or releasing any Collateral charged thereby; and
d. Not register a financing change statement (in accordance with Regulation 9) or a change demand (in accordance with Regulation 10) without the prior written consent of the Seller; and
e. Give the Seller not less than 14 days prior written notice of any proposed change in the Buyer’s name and/or any other change in the Buyer’s details (including but not limited to, changes in the Buyer’s address, facsimile number, or business practice); and
f. Immediately advise the Seller of any material change in its business practices of selling the Goods which would result in a change in the nature of proceeds derived from such sales.
11.3 Unless otherwise agreed to in writing by the Seller, the Buyer waives its right to receive a verification statement in accordance with section 148 of the PPSA and agrees, to the extent permitted by law, and in respect of any arrangement between the Buyer and the Seller
a. The Buyer shall have no rights under (or by reference to) section 114(1) or 133 of the PPSA; and
b. The provisions of part 9 of the PPSA which are for the benefit of the Buyer or place obligations on the Seller shall apply only to the extent that either they are mandatory or the Seller agrees to the application; and
c. Where the Seller has rights in addition to those in part 9 of the PPSA those rights shall continue to apply.
12. Security And Charge
12.1 Notwithstanding anything to the contrary contained herein or any other rights which the Seller may have howsoever:
a. Where the Buyer and/or the Guarantor (if any) is the owner of land, realty or any other asset capable of being charged, both the Buyer and/or the Guarantor agree to mortgage and/or charge all of their joint and/or several interest in the said land, realty or any other asset to the Seller or the Seller’s nominee to secure all amounts and other monetary obligations payable under this Agreement. The Buyer and/or
the Guarantor acknowledge and agree that the Seller (or the Seller’s nominee) shall be entitled to lodge where appropriate a caveat or register a security interest, which caveat or other security interest shall be released once all payments and other monetary obligations payable hereunder have been met.
b. Should the Seller elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Buyer and/or Guarantor shall indemnify the Seller from and against all the Seller’s costs and disbursements including legal costs on a solicitor and own client basis.
c. To give effect to the provisions of clause 12.1(a) the Guarantor (if any) do hereby irrevocably nominate constitute and appoint the Seller or the Seller’s nominee as the Buyer’s and/or Guarantor’s true and lawful attorney to execute mortgages and charges (whether registerable or not) including such other terms and conditions as
the Seller shall think fit in the Seller’s absolute discretion against the joint and/or several interest of the Buyer and/or the Guarantor in any land, realty or asset in favour of the Seller and in the Buyer’s and/or Guarantor’s name as may be necessary to secure the said Buyers and/or Guarantor’s obligations and indebtedness to the Seller and further to do and perform all necessary and other acts including
instituting any necessary legal proceedings, and further to execute all or any documents in the Seller’s absolute discretion which may be necessary or advantageous to give effect to the provisions of this clause.
13.1 The Seller may cancel this Agreement or cancel delivery of Goods at any time before the Goods are delivered by giving written notice. The Seller shall not be liable for any loss or damage whatever arising from such a cancellation.
14 Privacy Act 1993
14.1 The Buyer and Guarantor/s authorise the Seller to collect, retain and use any information about the Buyer, for the purposes of assessing the Buyer’s creditworthiness or marketing any Goods provided by the Seller to any other party.
15 Intellectual Property
15.1 Where intellectual property rights (particularly trademarks, patents or copyrights) subsist in the Goods then the Seller may impose restrictions on the use of the Goods other than straight forward retail sale in the Seller’s packaging.
15.2 All Goods sold in retail packaging may be resold by the Buyer only in the packaging supplied by the Seller and in no case may any trademark other than those implied by the Seller be marked on or applied in relation to the Goods.
15.3 No right or license is granted under this Agreement to the Buyer under any patent, trademark, copyright, registered design or other intellectual property right except the right to use or resell the Goods as provided above.
16.1 The Seller’s total liability to the Buyer under this Agreement in respect of any loss or damage whatsoever and whether arising out of contract, tort, equity or statute is hereby expressly limited to, at the Seller’s sole iscretion, the direct cost of replacing or repairing free of charge all such Collateral as has proven defective in accordance with the provisions of clause 7 provided however that Seller shall not be liable for any loss or damage which is beyond the reasonable control of the Seller.
16.2 Except as expressly stated in clause 16.1 the Seller excludes all other liability to the Buyer under this Agreement in respect of any loss or damage whatsoever and whether arising out of contract, tort, equity or statute. This exclusion shall also apply for the benefit of the Seller’s employees, agents, subcontractors and suppliers.
16.3 Notwithstanding that the Seller has set out in clause 16.1 the full extent of the Buyer’s right to claim from Seller under this Agreement and has excluded all other liability of the Seller (and any other person listed in clause 16.2) to the Buyer, in the event that Seller (or any of
the persons listed in clause 16.2) is found to be liable to the Buyer for any reason whatsoever the Buyer and Seller agree that the combined maximum amount the Seller (or the other persons listed in clause 16.2) shall have to pay to the Buyer is $1,000.00 per event or series of events or a total of $5,000.00 in any 12 month period.
17.1 If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected.
17.2 The Seller reserves the right to review this Agreement at any time and from time to time. If, following any such review, there is to be any change in such terms and conditions, that change will take effect from the date on which the Seller notifies the Buyer of such change.
17.3 Except for the content of any invoice, quotation, work authorization, sales order, work commencement form or any other documents which are deemed to form part of this Agreement, the terms and conditions of This Agreement contain the entire agreement between the parties.
17.4 These terms and conditions shall be governed and interpreted according to the Laws of New Zealand.