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Terms & Conditions of Sale 
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INTERPRETATION

In these conditions:

  • “Buyer” means the person who accepts a quotation from the Seller for the sale of the Goods or whose order for the Goods is accepted by the Seller.

  • “Goods” means the goods (including any parts for them) which the Seller is to supply, in accordance with these conditions.

  • “Seller” means the company whose name appears on the header of the invoices.

  • “Conditions” means the standard terms and conditions of sale set out in this document and (unless the context otherwise requires) includes any special terms and conditions agreed in writing between the Buyer and the Seller.

  • “Contract” means the contract for the purchase and sale of the Goods.

  • “Writing” includes telex, cable, facsimile transmission, email, and comparable means of communication.

Any reference in these Conditions to any provision of a statute shall be construed as a reference to that provision as amended, re-enacted, or extended at the relevant time.

The headings in these Conditions are for convenience only and shall not affect their interpretation.

 

BASIS OF THE SALE

The Seller shall sell and the Buyer shall purchase the Goods in accordance with any written quotation of the Seller which is accepted by the Buyer, or any written order of the Buyer which is accepted by the Seller, subject in either case to these Conditions, which shall govern the Contract to the exclusion of any other terms and conditions subject to which any such quotation is accepted or purported to be accepted, or any such order is made or purported to be made by the Buyer.

No variation to these Conditions shall be binding unless agreed in writing between the authorized representatives of the Buyer and Seller.

The Seller’s employees or agents are not authorized to make any representations concerning the Goods unless confirmed by the Seller in Writing. In entering into the contract, the Buyer acknowledges that it does not rely on, and waives any claim for breach of any such representations which are not so confirmed.

Any typographical, clerical, or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice, or other document or information issued by the Seller shall be subject to correction without any liability on the part of the Seller.

 
ORDERS AND SPECIFICATIONS

No order submitted by the Buyer shall be deemed to be accepted by the Seller unless and until confirmed in Writing by the Seller’s authorized representative.

The Buyer shall be responsible to the Seller for ensuring the accuracy of the terms of any order (including any applicable specification) submitted by the Buyer, and for giving the Seller any necessary information relating to the Goods within a sufficient time to enable the Seller to perform the Contract in accordance with its terms.

The quantity, quality, and description of and any specification for the Goods shall be those set out in the Seller’s quotation (if accepted by the Buyer).

The Seller reserves the right to make any changes in the specification for the Goods which are required to conform with any applicable safety or other statutory requirements.

No order which has been accepted by the Seller may be canceled by the Buyer except with the agreement in Writing of the Seller and on terms that the Buyer shall indemnify the Seller in full against all loss (including loss of profit), costs (including the cost of all labor and materials used), damages, charges, and expenses incurred by the Seller as a result of cancellation.

 
PRICE OF THE GOODS

The price of the Goods shall be the Seller’s quoted price or, where no price has been quoted (or a quoted price is no longer valid), the price listed in the Seller’s published price list. All prices quoted are valid for 30 days only or until earlier acceptance by the Buyer, after which time they may be altered by the Seller without giving notice to the Buyer.

The Seller reserves the right, by giving notice to the Buyer at any time before delivery, to increase the price of the Goods to reflect any increase in the cost to the Seller which is due to any factor beyond the control of the Seller (such as, without limitation, any foreign exchange fluctuation, currency regulation, alteration of duties, significant increase in the costs of labor, materials, or other costs of manufacture), any change in delivery dates, quantities or specifications for the Goods which is requested by the Buyer, or any delay caused by any instructions of the Buyer or failure of the Buyer to give the Seller adequate information or instructions.

Except as otherwise stated under the terms of any quotation or in any price list of the Seller, and unless otherwise agreed in writing between the Buyer and the Seller, all prices are given by the Seller on an ex works basis, and where the Seller agrees to deliver the Goods otherwise than at the Seller’s premises, the Buyer shall be liable to pay the Seller’s charges for transport, packaging, and insurance.

 
TERMS OF PAYMENT
  1. Subject to any special terms agreed in Writing between the Buyer and the Seller, the Seller shall be entitled to invoice the Buyer for the price of the Goods on, before, or at any time after delivery of the goods unless the Goods are to be collected by the Buyer or the Buyer wrongfully fails to take delivery of the Goods, in which event the Seller shall be entitled to invoice the Buyer for the price at any time after the Seller has notified the Buyer that the Goods are ready for collection or (as the case may be) the Seller has tendered delivery of the Goods.

  2. The Buyer shall pay the price of the Goods (less any discount to which the Buyer is entitled, but without any other deduction) upon demand or in accordance with any agreement for payment reached between the Buyer and Seller and which has been confirmed in writing. Receipts for payment will be issued only upon request.

  3. If the Buyer fails to make any payment in accordance with 5.2 above without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to:

  4. a. cancel the contract or suspend any further deliveries to the Buyer;

  5. b. appropriate any payment made by the Buyer in respect of the Goods (or the Goods supplied under any other contract between the Buyer and the Seller) as the Seller may think fit (notwithstanding any purported appropriation by the Buyer); and

  6. c. charge the Buyer the interest on the amount unpaid, at the rate of 2.5 per cent per month above the interest rate charged by the Bank of New Zealand on its Prime (Benchmark) rate from time to time, until payment in full is made (a part of a month being treated as a full month for the purpose of calculating interest).

  7. In the event of default by the Buyer of any of the terms contained herein the Buyer shall be liable to pay all the Seller’s costs in ensuring compliance with the Buyer’s obligations hereunder including legal costs calculated on a solicitor/client basis, and/or those fees charged by a debt collection agency.

 
DELIVERY
  1. Delivery of the Goods shall be made by the Buyer collecting the Goods at the Seller’s premises at any time after the Seller has notified the Buyer that the Goods are ready for collection or, if some other place for delivery is agreed by the Seller, by the Seller delivering the Goods to that place.

  2. Any dates quoted for delivery of the Goods are approximate only and the Seller shall not be liable for any delay in delivery of the Goods howsoever caused. Time for delivery shall not be the essence unless previously agreed by the Seller in Writing. The Goods may be delivered by the Seller in advance of the quoted delivery date upon giving reasonable notice to the Buyer. The Seller reserves the right to deliver in batches or by separate consignment or by installment as the case may be.

  3. If the Seller fails to deliver the Goods for any reason other than cause beyond the Seller’s reasonable control or the Buyer’s fault, and the Seller is accordingly liable to the Buyer, the Seller’s liability shall be limited to the excess (if any) of the cost to the Buyer (in the cheapest available market) of similar goods to replace those not delivered over the price of the Goods.

  4. If the Buyer fails to take delivery of the Goods or fails to give the Seller adequate delivery instructions at the time stated for delivery (otherwise than by reason of any cause beyond the Buyer’s reasonable control or by reason of the Seller’s fault) then, without prejudice to any other right or remedy available to the Seller, the Seller may:

  5. a. store the Goods until actual delivery and charge the Buyer for the reasonable costs (including insurance) of storage, or

  6. b. sell the Goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) charge the Buyer for any shortfall below the price under the Contract.

 

RISK AND PROPERTY

Risk of damage to or loss of the Goods shall pass to the Buyer:

  1. in the case of Goods which are to be delivered at the Seller’s premises, at the time when the Seller notifies the Buyer that the goods are available for collection, or

  2. in the case of Goods which are to be delivered otherwise than at the Seller’s premises, at the time of delivery, or if the Buyer wrongfully fails to take delivery of the Goods, the time when the Seller has tendered delivery of the Goods.

Notwithstanding delivery and the passing of risk in the Goods, or any other provision of these Conditions, the property in the Goods shall not pass to the Buyer until the Seller has received in cash or cleared funds payment in full of the price of the Goods and all other goods agreed to be sold by the Seller to the Buyer for which payment is then due.

Until such time as the property in the Goods passes to the Buyer, the Buyer shall hold the Goods as the Seller’s fiduciary agent and bailee and shall keep the Goods separate from those of the Buyer and third parties and properly stored, protected, and insured and identified as the Seller’s property. Until that time the Buyer shall not be entitled to resell the Goods but shall be entitled to use of the Goods.

Until such time as the property in the Goods passes to the Buyer (and provided the Goods are still in existence and have not been resold), the Seller shall be entitled at any time to require the Buyer to deliver up the Goods to the Seller and, if the Buyer fails to do so forthwith, to enter upon the premises of the Buyer or any third party where the Goods are stored and repossess the Goods.

The Buyer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Goods which remain the property of the Seller, but if the Buyer does so all monies owing by the Buyer to the Seller shall (without prejudice to any other right or remedy of the Seller) forthwith become due and payable.

 

WARRANTIES AND LIABILITY
  1. The Seller offers no warranty in respect of any Goods sold other than is implied at Law by the Sale of Goods Act 1908.

  2. Any warranty is given by the Seller subject to the following conditions:

  3. a. the Seller shall be under no liability in respect of any defect in the Goods arising from any drawing, design, or specification of the Manufacturer’s

  4. b. the Seller shall be under no liability in respect of any defect arising from fair wear and tear, willful damage, negligence, abnormal working conditions, failure to follow the Seller’s instructions (whether oral or in writing), misuse or alteration or repair of the Goods without the Seller’s approval

  5. c. the Seller shall be under no liability under the above warranty (or any other warranty, condition or guarantee) if the total price for the Goods has not been paid by the due date for payment

  6. d. without prejudice to clause 8.1 the above warranty does not extend to parts, materials, or equipment not manufactured by the Seller, in respect of which the Buyer shall only be entitled to the benefit of any such warranty or guarantee as is given by the manufacturer to the Seller

  7. Subject as expressly provided in these Conditions, all warranties, conditions, or other terms implied by statute or common law are excluded to the fullest extent permitted by law.

  8. Any claim by the Buyer which is based on any defect in the quality or condition of the Goods or their failure to correspond with specification shall (whether or not delivery is refused by the Buyer) be notified to the Seller within 3 days from the date of delivery or (where the defect or failure was not apparent on reasonable inspection) within a reasonable time after discovery of the defect or failure. If delivery is not refused and the Buyer does not notify the Seller accordingly, the Buyer shall not be entitled to reject the Goods and the Seller shall have no liability for such defect or failure, and the Buyer shall be bound to pay the price as if the Goods had been delivered in accordance with the Contract.

  9. Where any valid claim in respect of the Goods which is based on any defect in the quality or condition of the Goods or their failure to meet specification is notified to the Seller in accordance with these Conditions, the Seller shall at the Seller’s sole discretion be entitled to replace the Goods (or the part in question) free of charge, but the Seller shall have no further liability to the Buyer.

  10. Except in respect of death or personal injury caused by the Seller’s negligence, the Seller shall not be liable to the Buyer by reason of any representations or any implied warranty, condition or other term, or any duty at common law, or under the express terms of the Contract, for any consequential loss or damage (whether for loss of profit or otherwise), costs, expenses or other claims for consequential compensation whatsoever (and whether caused by the negligence of the Seller, its employees or agents or otherwise) which arise out of or in connection with the supply of the Goods or their use or resale by the Buyer, except as expressly provided in these conditions.

  11. The Seller shall not be liable to the Buyer or be deemed to be in breach of the Contract by reason of any delay in performing or any failure to perform any of the Seller’s obligations in relation to the Goods, if the delay or failure was due to any cause beyond the Seller’s reasonable control. Without prejudice to the generality of the foregoing, the following shall be regarded as causes beyond the Seller’s reasonable control:

  12. a. Act of God, explosion, flood, tempest, fire, or accident

  13. b. war or threat of war, sabotage, insurrection, civil disturbance, or requisition

  14. c. acts, restrictions, regulations, by-laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority

  15. d. import or export regulations or embargoes

  16. e. strikes, lockouts, or other industrial actions or trade disputes (whether involving employees of the Seller or a third party)

  17. f. difficulties in obtaining raw materials, labor, fuel, parts, or machinery

  18. g. power failure or breakdown in machinery.

 

INDEMNITY
  1. If any claim is made against the Buyer that the Goods infringe or that their use or resale infringes the patent, copyright, design, trademark, or other industrial or intellectual property rights of any other person, the Seller shall indemnify the Buyer against all loss, damages, costs, and expenses awarded against or incurred by the Buyer in connection with the claim, or paid or agreed to be paid by the Buyer in settlement of the claim, provided that:

  2. a. the Seller is given full control of any proceedings or negotiations in connection with any such claim

  3. b. the Buyer shall give the Seller all reasonable assistance for the purposes of any such proceedings or negotiations

  4. c. except pursuant to a final award, the Buyer shall not pay or accept any such claim or compromise any such proceedings without the consent of the Seller (which shall not be unreasonably withheld)

  5. d. the Buyer shall do nothing which would or might vitiate any policy of insurance or insurance cover which the Buyer may have in relation to such infringement, and this indemnity shall not apply to the extent that the Buyer recovers any sums under any such policy or cover (which the Buyer shall use its best endeavors to do)

  6. e. the Seller shall be entitled to the benefit of, and the Buyer shall accordingly account to the Seller for all damages and costs (if any) awarded in favor of the Buyer which are payable by or agreed with the consent of the Buyer (which consent shall not be unreasonably withheld) to be paid by any other party in respect of any such claim, and

  7. f. without prejudice to any duty of the Buyer at common law, the Seller shall be entitled to require the Buyer to take such steps as the Seller may reasonably require to mitigate or reduce any such loss, damages, costs, or expenses for which the Seller is liable to indemnify the Buyer under this clause

 

INSOLVENCY OF BUYER
  1. This clause applies if:

  2. a. the Buyer makes any voluntary arrangement with its creditors or becomes subject to an administration order or (being an individual or firm) becomes bankrupt or (being a company) goes into liquidation (otherwise than for the purpose of amalgamation or reconstruction), or

  3. b. an encumbrancer takes possession, or a receiver is appointed, of any of the property or assets of the Buyer, or

  4. c. the Buyer ceases, or threatens to cease, to carry on business, or

  5. d. the Seller reasonably apprehends that any of the events mentioned above is about to occur in relation to the Buyer and notifies the Buyer accordingly.

  6. If this clause applies then, without prejudice to any right or remedy available to the Seller, the Seller shall be entitled to cancel the Contract or suspend any further deliveries under the Contract without any liability to the Buyer, and if the goods have been delivered but not paid for, the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.

 

EXPORT TERMS
  1. In these conditions “incoterms” means the international rules for the interpretation of trade terms of the International Chamber of Commerce as in force at the date when the Contract is made. Unless the context otherwise requires, any term or expression which is defined in or given a particular meaning by the provisions of Incoterms shall have the same meaning in these Conditions, but if there is any conflict between Incoterms and these Conditions, the latter shall prevail.

  2. Where the Goods are supplied for export from New Zealand, the provisions of this clause 11 shall (subject to any special terms agreed in writing between the Buyer and the Seller) apply notwithstanding any other provision of these Conditions.

  3. The Buyer shall be responsible for complying with any legislation or regulations governing the importation of the Goods into the country of destination and for the payment of duties thereon.

  4. The Buyer shall be responsible for arranging for testing and inspection of the Goods at the Seller’s premises before shipment. The Seller shall have no liability for any claim in respect of any defect in the Goods which would be apparent on inspection and which is made after shipment, or in respect of any damage during transit.

  5. Payment of all amounts due to the Seller shall be made by irrevocable letter of credit opened by the Buyer in favor of the Seller and confirmed by a bank in New Zealand acceptable to the Seller, or if the Seller has agreed in writing on or before acceptance of the Buyer’s order to waive this requirement, by acceptance by the Buyer and delivery to the Seller of a bill of exchange drawn on the Buyer payable 30 days after sight to the order of the Seller at such branch of BNZ in New Zealand as may be specified in the Bill of Exchange.

 

GENERAL
  1. Any notice required or permitted to be given by either party to the other under these Conditions shall be in writing and shall be delivered personally, or sent by post or by email, to the other party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice.

  2. No waiver by the Seller of any breach of the Contract by the Buyer shall be considered as a waiver of any subsequent breach of the same or any other provision.

  3. If any provision of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part, the validity of the other provisions of these Conditions and the remainder of the provision in question shall not be affected thereby.

  4. The Contract shall be governed by the laws of New Zealand.

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