| | | |
| | |
| | Quotation and Price | Top of Page |
| | | |
| | The Company shall confirm the price of goods and services as a quotation
and the Buyer shall confirm acceptance by signing the order.
No quotation shall constitute an offer unless signed by the Company and
the Company may withdraw any quotation before the Buyer's signed
acceptance. The quotation price may be increased if the Company suffers any
cost increases which are beyond its control in the supply, production and
delivery of Goods (including increases in imported materials and duties)
between the date of Contract (or where the Contract arises from a
quotation, the date of quotation) and the date of delivery, or if the Buyer
varies or alters the requirements for the Goods. All prices are exclusive
of GST, insurance, freight and other handling charges which shall be
invoiced by the Company and payable by the Buyer. |
| | |
| | Conditions for Special Orders (non catalogue) | Top of Page |
| | | |
| | Where the buyer orders Goods that are to be specially made for the Buyer
and where the Goods are non-catalogue Goods, the Buyer shall accept:
(a) That any commissioning or acceptance procedure agreed in the quotation
that has been successfully completed by the Company, the Buyer shall not
make any claim against the Company that the supply of the order does not
meet the Buyer’s requirements with regard to the completion of the order.
(b) That the Company shall warrant that it shall supply the Goods
according to the designs and specifications provided by the Company and
issued to the Buyer (or the customer of the Buyer on behalf of the Buyer).
OR
(c) That the Company shall warrant that it shall supply the Goods
according to the designs and specifications provided by the Buyer (or the
customer of the Buyer on behalf of the Buyer) in which case the Buyer
agrees that liability for the Goods will remain with the Buyer and the
Buyer will pay the Company in full for the Goods and will not hold the
Company responsible for any economic or consequential loss that may be
incurred by the Buyer as a result of the Goods produced from incorrect or
mistaken designs, specifications or instructions. |
| | |
| | Tools and Dies (Price, Risk and Buyer Inspection) | Top of Page |
| | | |
| | The price of tools and dies shall be quoted separately to the Goods.
Alternatively the Buyer may provide tools and dies for the Company to use
in manufacture. In either situation where tools and dies are damaged or
deteriorate the Buyer shall accept charges for such repair or replacement.
Where the Buyer provides tools or dies for use in manufacture the Company
warrants that it will supply the Goods according to the condition of the
tools or dies supplied by the Buyer and that liability for Goods supplied
under these circumstances shall remain with the Buyer and the Buyer will
not hold the Company responsible for any economic or consequential loss
that may be suffered by the Buyer as a result of incorrect or mistaken
instructions, specifications or tools or dies provided by the Buyer or worn
tools or dies owned by the Buyer.
The Buyer agrees that where Goods supplied have been made from tools or
dies owned by the Buyer, the Company may retain tools and dies by way of
lien against any indebtness and may take possession of such tools and dies
until the Buyer pays the Company in full for the Goods. |
| | |
| | Payment | Top of Page |
| | | |
| | Payment shall be made upon delivery of the Goods except where the Company
has agreed to provide credit to the Buyer in which case payment shall be
made by the 20th of the month following date of invoice. The Buyer shall
make payment of all amounts due to the Company without any delay or
deduction whether by way of set-off, counterclaim or otherwise. If at any
time the Company reasonably deems the credit of the Buyer to be
unsatisfactory, it may require the Buyer to provide at the Buyer's cost,
security for payment and/or the Company may suspend performance of its
obligations under this Contract until security is provided to the Company's
satisfaction and the Company may require the Buyer to pay all costs
incurred as a result of suspension and re-commencement of supply. |
| | |
| | Interest for Late Payment | Top of Page |
| | | |
| | The Company may charge the Buyer interest on any money's outstanding under
the Contract on a daily basis at a rate equal to 5% above the Company's
bank indicator lending rate. Interest is payable from the date payment was
due until the date the Company receives payment. The Company's right to
charge interest is without prejudice to the Company's other rights or
remedies for the Buyer's default in failing to pay on the due date, and the
Company may suspend performance of any of its obligations and secure any
Goods in its possession until payment is made in full. |
| | |
| | Delivery | Top of Page |
| | | |
| | Delivery by the Company to a carrier accepted by the Buyer or delivery from
the Company's premises when the Company advises it is ready to deliver
constitutes delivery. If the Buyer fails to take delivery the Company has
the right to charge the Buyer for costs of storage or transport or both.
Delivery of +- ten per cent of the quantity of the Goods ordered by the
Buyer constitutes performance of the Contract. The Buyer will accept a
pro-rata cost for the quantity of Goods supplied.
Goods may be delivered in instalments and charged upon delivery and in
such case each delivery will be regarded as a separate contract and Goods
delivered shall be paid by the Buyer in accordance with the Terms of
Payment.
The Company will make every effort to ensure delivery of Goods but will
not be liable for any loss or damage or consequential loss to the Buyer
arising from delays in delivery. |
| | |
| | Risk, Ownership and Title | Top of Page |
| | | |
| | The Buyer agrees that the Company has legal and equitable right to title in
the Goods (ownership) until the contract price is paid.
Regardless of the Company ownership of the Goods, the Buyer agrees to
accept risk in the Goods for any loss, theft, damage or deterioration of or
to the Goods while in the possession of the Buyer. This means that the
Buyer shall agree to properly store, protect and insure the Goods under the
risk policy of the Buyer.
Failure by the Buyer to properly protect and insure the Goods shall not
absolve the Buyer of the legal responsibility to the Company to pay for the
Goods in the event of fire or loss damage or theft while under the care and
responsibility of the Buyer.
Notwithstanding that property in the Goods is retained by the Company, the
Buyer shall store the Goods separately in the premises of the Buyer and in
such a way that they are identifiable as the property of the Company and
shall not alter the Goods in any way or mix the Goods with other goods
owned by the Buyer unless the Buyer has paid the Company in full.
The Company authorises the Buyer to sell the Goods in the ordinary course
of business and to deal with such proceeds of sale as fiduciary agent and
bailee of the Company until the Buyer pays the Company in full without
deduction or setoff. The Buyer shall agree as fiduciary agent and bailee of
the Company that the proceeds of sale are the property of the Company until
the outstanding debt to the Company has been paid.
The Company may revoke the authority given to the Buyer to sell the Goods
that have not been paid in full by giving written notice at any time if the
Company deems the credit of the Buyer to be unsatisfactory or if the Buyer
is in default of its obligations under the contract or any other contract
between the Company and the Buyer, and shall be deemed automatically
revoked if the Buyer shall commit any act of bankruptcy, enter into any
composition or arrangement with creditors, or (in the case of a Company) do
any act which would render it liable to be liquidated or if a resolution is
passed or proceedings commenced for the liquidation of the Buyer or a
Receiver is appointed in respect of all or any assets of the Buyer.
Where Goods in respect of which property has not passed to the Buyer are
sold by the Buyer pursuant to the authority granted any book debt created
upon sale of such Goods and the proceeds of sale of such Goods when
received by the Buyer, shall be held upon trust by the Buyer for the
Company and any proceeds of sale so received by the Buyer shall be placed
in a separate bank account and shall first be applied towards the
satisfaction of all indebtedness of the Buyer to the Company.
If the Goods, the subject of this contract, have become the constituent of
mixed with or attached to any other goods, meaning Goods that are sold by
the Company, and those goods are sold by the Buyer prior to the Company
receiving payment, then a portion of the proceeds of that sale,
attributable to the value of the Company's Goods, shall be the property of
the Company, and the Buyer shall ensure that such proceeds are at all times
held in a separate fund in trust for the Company.
The Buyer shall inform its creditors of the terms upon which it buys Goods
from the Company and shall provide the Company when requested for the
business name, address and contact details of its creditors purchasing
Goods in which the Company has retained title and also including that the
Company may create and register a Purchase Money Security Interest over the
Goods under the Personal Property Secruities Act. The Buyer also agrees to
waive the right to receive a verification statement for purposes of s.148
of the Act and shall also inform any Trustee in Bankruptcy or Liquidator
of the Buyer or any Receiver of the Buyer’s business or assets of the
rights of the Company and title to the proceeds of sale.
In any event where Goods remain unpaid by the Buyer, the Company has
unreserved right to enter the property of the Buyer or its agents during
normal business hours and remove Goods relating to the unpaid amount in
accordance with the Credit (repossession) Act and the Buyer will not hold
the Company responsible for any economic or consequential loss that the
Buyer may suffer as a result, whether the Goods are attached to other goods
or property owned by the Buyer, or not.
The Buyer agrees that where Goods supplied have been made from
specifications and Intellectual Property provided by the Buyer such
specifications and Intellectual Property shall constitute part of the value
of the Goods supplied and that the Company has an unreserved lien over and
may take possession of such specifications and Intellectual Property until
the buyer pays in full for the Goods. |
| | |
| | Claims for Returned, Damaged or Defective Goods | Top of Page |
| | | |
| | The Company may, at its discretion, repair or replace any damaged or
defective Goods or make a reasonable allowance on the purchase of goods to
replace the Goods provided:
(a) The Buyer returns the Goods within thirty (30) days of delivery at the
Buyers cost, together with a copy of the invoice and a claim specifically
identifying the damage or defect(s); and
(b) The Company has reasonable opportunity to investigate the claim.
If the Buyer does not comply with the above requirements, the Buyer will
be deemed to have accepted the Goods and the Company will not incur any
liability whatsoever in relation to the Goods.
The Buyer agrees that claims shall not be considered in respect of Goods
which:
(i) are not intact and in original condition
(ii) have been abused or improperly stored or suffered damage
(iii) have been sold to the Buyer on a non-refundable basis
(iv) have been sold to the Buyer on tender or in non-standard lots or
special labelling.
(v) are more than (12) twelve months after the date of delivery.
(vi) in the case of discrepancies in order quantity or type of Goods where
the claim is not in writing within (7) seven working days of receipt of the
order. |
| | |
| | Company Guarantee & Liability | Top of Page |
| | | |
| | The Company's liability in respect of any claim shall relate only to
specific defects in the Goods arising from faulty materials or workmanship
of the Company from period of twelve months following the date of
delivery.
The Company shall not be liable for any breach or failure to perform any
of its obligations under this contract where such breach or failure is
caused by war, civil commotion, hostilities, strike or lock out, act of
God, fire, governmental regulations or directions, or any other cause force
majeure beyond the Company's reasonable control. The occurrence of such an
event shall not give the Buyer a right of cancellation of the contract. |
| | |
| | Consumer Guarantees Act 1993 | Top of Page |
| | | |
| | Nothing in these terms is intended to have the affect of contracting out of
the provisions of the Consumer Guarantees Act 1993 except to the extent
permitted by that Act where the Buyer acquires the Goods in a business to
business situation and all provisions of these terms shall be read as
modified to the extent necessary to give effect to that intention.
The Buyer shall not, in relation to the supply by the Purchaser of the
Goods, give or make any undertaking, assertion or representation in
relation to the Goods without the prior approval in writing of the Company,
and the Buyer shall indemnify the Company against any liability or cost
incurred by the Company as a result of any breach by the Buyer of this
provision. |
| | |
| | Grounds for Termination by the Company | Top of Page |
| | | |
| | This Agreement may be terminated by the Company immediately on written
notice to the Buyer, if an Event of Default of payments due to the Company
by the Buyer occurs.
Default will also mean, if the Buyer:
(a) Fails to commence operation of the contract meaning orders given to
the Company on or before commencement date meaning the date of the Buyers
order.
(b) Fails to comply with any quality or standards for the care of the
Goods issued by the Company.
(c) Shall commit any act of bankruptcy, or enter into any composition or
arrangement with creditors.
(d) Where the Buyer is a Company or incorporation do any act which would
render it liable to be liquidated or if a resolution is passed or
proceedings commenced for the liquidation of the Company or incorporation
or if a Receiver is appointed in respect of all or any assets of the
Company or incorporation. |
| | |
| | Immediate Steps Upon Termination. | Top of Page |
| | | |
| | Upon the termination of this agreement for any reason, all rights of the
Buyer granted by this agreement shall terminate and any Intellectual
Property provided by the Buyer to the Company shall become the property of
the Company and the Buyer will not be entitled to receive any rebate or
refund of the whole or any part of the money paid pursuant to this
agreement. |
| | |
| | No release from obligations. | Top of Page |
| | | |
| | Terminations of this agreement shall not relieve the Buyer of its
obligations to pay all money owed by it to the Company on any account
whatsoever, which money shall be payable immediately notwithstanding that
the date for payment of the money may not have arrived. Termination of
this agreement shall not relieve the Buyer from liability arising from any
antecedent breach of the terms of this agreement. |
| | |
| | Applicable Law for Dispute and Arbitration | Top of Page |
| | | |
| | In the event of any dispute between the Company and the Buyer arising out
of this Agreement, the substantive laws of New Zealand shall apply and such
dispute shall be referred to a Mediator to be agreed between the parties
and upon failure to accept the resolution of the Mediator shall be referred
to an Arbitrator to be agreed between the parties and upon failure to reach
agreement arbitration be conducted in accordance with the New Zealand
Arbitration Act 1996 and any amendments thereof and such arbitration and
legal hearings shall be conducted in New Zealand. |
| | |
| | Guarantor | Top of Page |
| | | |
| | Where the Buyer is a Company, the person(s) referred to as guarantor'(s) in
this Agreement shall personally guarantee the obligations of the Buyer. |
