1 |
General |
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1.1 |
All goods are
sold and services provided in accordance with the following terms
and conditions which shall be construed in accordance with New Zealand
law. |
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1.2 |
The Seller gives all technical
assistance entirely at the Buyer’s risk. |
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1.3 |
Subject to clause 6.2, all
representations or terms (including any condition or warranty expressed
or implied by law, statute or otherwise) not expressly included
in these terms and conditions are hereby expressly excluded, unless
expressly accepted by the Seller in writing. |
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2 |
Prices
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Unless otherwise agreed in
writing between the Seller and the Buyer, all goods are sold at
the Seller's current prices at the time of delivery exclusive of
goods and services tax, other taxes and duties, freight and insurance,
and quotations are accordingly subject to variation. |
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3 |
Delivery
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3.1 |
Delivery is deemed to be made
to the Buyer: |
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| 3.1.1 |
if delivered by the Seller,
when the goods reach the delivery address; or |
| 3.1.2 |
if not delivered by the Seller, when
the goods are first despatched from the Seller's premises. |
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3.2 |
All carriers who are not
the Seller are deemed to be agents of the Buyer. |
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3.3 |
The Seller will use reasonable
endeavours to maintain deliveries according to schedule but any
period or dates quoted for delivery are to be regarded as approximate
only. |
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3.4 |
The Seller is not responsible
for non-delivery caused by any factors beyond its reasonable control.
The Buyer is bound to accept and pay for goods delivered within
a reasonable time after any cause of delay has ceased. |
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3.5 |
The Seller may stop future
deliveries until the Buyer has paid for all previous deliveries
(whether payment is due or not). |
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3.6 |
The Buyer authorises the Seller
to arrange for carriage of goods on such terms and conditions as
the Seller thinks fit. |
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4 |
Returns and Cancelled Orders |
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4.1 |
Subject to clause 6.2, goods
will only be accepted for return within 7 days of the date of delivery
and in the same condition as they were in as at delivery. The goods
remain at the risk of the Buyer until the goods are physically received
back and accepted by the Seller. Freight for such returns
will be at the Buyer's risk and expense. |
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4.2 |
The Buyer may not cancel any
order without the prior written consent of the Seller, and the Buyer
shall pay all costs incurred by the Seller in respect of the cancelled
order. |
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5 |
Services
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5.1 |
Unless otherwise arranged
in writing with the Seller, the Seller does not provide any services
to the Buyer and the installation, repair and maintenance of the
goods is the responsibility of the Buyer. |
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5.2 |
If the Seller installs, repairs
or maintains the goods it will use reasonable care but gives no
warranty as to the efficacy of the installation, repair or maintenance,
except as expressly agreed in writing. |
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5.3 |
If the Seller provides services
to the Buyer these will be provided at the Buyer’s risk and the
Buyer acknowledges that the Seller has no knowledge or control over
health and safety or other procedures on premises other than the
Seller’s premises. |
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6 |
Consumer Guarantees Act 1993 |
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6.1 |
The Buyer acknowledges that
if the Buyer is not a consumer (as defined in the Consumer Guarantees
Act 1993 (“Act”)) or if the goods are being purchased for business
purposes (as provided in section 43 of the Act), the terms and guarantees
under the Act do not apply. |
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6.2 |
Nothing in these terms and
conditions is intended to have the effect of contracting out of
the provisions of the Consumer Guarantees Act 1993 except to the
extent permitted by that Act, and all provisions of these terms
and conditions shall be read as modified to the extent necessary
to give effect to that intention. If the Buyer does not fall
within clause 6.1 the provisions of the Consumer Guarantees Act
1993 apply. |
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6.3 |
The Buyer undertakes to insert
a similar provision to clause 6.1 in its terms and conditions of
trade with any business or non-consumer purchaser it resupplies
with the goods and further undertakes to indemnify the Seller from
any loss or liability incurred under the Consumer Guarantees Act
1993 as a direct result of its failure to include such a provision. |
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6.4 |
The Buyer will indemnify the
Seller for any liability that the Seller may incur which arises
as a consequence of representations made by the Buyer about any
of the goods which are made otherwise than in accordance with the
Seller’s express specifications and warranties which accompany the
goods. |
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7 |
Risk
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7.1 |
Goods are at the sole risk
of the Buyer from time delivery is deemed to be made under clause
3.1 whether received by the Buyer or not, whether or not there is
a delay in delivery and even though ownership of the goods may not
have passed to the Buyer. |
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7.2 |
The Seller has no obligation
to do anything to limit any loss it might suffer if the Buyer does
not pay the Seller on time. |
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7.3 |
The Buyer shall at all times
insure the goods and keep them insured for their full insurable
value against all insurable causes including loss or damage by fire
and theft. If the goods are lost, damaged or destroyed then
the Buyer agrees to make a claim against the insurance policy with
respect to the lost, damaged or destroyed goods and to immediately
pay the proceeds received to the Seller, and the Buyer will remain
liable to the Seller for any shortfall in the insurance proceeds. |
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8 |
Payments
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8.1 |
The Buyer must, subject to
the other provisions of these terms and conditions, pay for the
goods on delivery unless prior written arrangements have been made
with the Seller ("the due date"), time being of the essence.
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8.2 |
If the Buyer owes money to
the Seller under more than one invoice, the Seller may allocate
any payment received from the Buyer to payment or part payment of
any outstanding invoice, notwithstanding any instructions of the
Buyer to the contrary. |
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8.3 |
If the Buyer does not pay
in full by the due date, and without prejudice to the Seller's other
rights and remedies: |
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| 8.3.1 |
the Seller may charge
the Buyer interest at the Default Rate on the amount outstanding
from the due date until actual payment; and |
| 8.3.2 |
the Seller will be entitled to treat
the contract as having been cancelled by the Buyer. |
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8.4 |
All discounts cease to apply
if all monies due are not received by the Seller on the due date. |
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8.5 |
The Seller may demand full
payment of any monies due at any time and without notice. |
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8.6 |
Payment shall become immediately
payable regardless of the terms of payment and the Seller may take
immediate action to recover payment if the Buyer is in default under
any agreement with the Seller or commits an act of bankruptcy or
goes into liquidation or receivership or enters into a creditors
composition or has its credit standing impaired in any way. |
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8.7 |
Payment by cheque or other
bill of exchange or any promissory note will not be deemed to be
payment until actually honoured or cleared to the credit of the
Seller, and until such time, shall not prejudice or affect the Seller's
rights or powers or remedies against the Buyer and/or the goods. |
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9 |
Retention Of Title |
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9.1 |
Ownership in the goods shall
not pass to the Buyer and any proceeds of sale of the goods shall
belong to the Seller until the Buyer has paid for the goods in full.
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9.2 |
The Buyer acknowledges and
agrees that the Seller may register any security interest that the
Seller has in respect of the goods and their proceeds on the Personal
Property Securities Register and that such security interest survives
until the goods are fully paid for. |
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9.3 |
Until payment to the Seller
has been made in full for the goods, the Buyer acknowledges and
agrees that: |
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| 9.3.1 |
the Seller supplies the
goods to the Buyer on the condition that the Seller has
a PMSI in the goods; |
| 9.3.2 |
in relation to goods that are inventory,
the Buyer will not allow any non-purchase money security
interest to arise in respect of the goods unless the Seller
has perfected its PMSI prior to the Buyer’s possession of
the goods; |
| 9.3.3 |
the Buyer will not permit the goods
to become accessions or commingled with other goods or mass
if the Seller has not perfected any security interest that
the Seller has in relation to the goods; and |
| 9.3.4 |
if the Buyer (notwithstanding clause
9.1 of these terms and conditions) sells the goods prior
to payment for the same to the Seller, the Buyer will pay
the proceeds arising from that dealing into a separate account
with separate records so that those proceeds remain identifiable
and traceable to that dealing and the goods. The Buyer
agrees that there will be no other funds in the account.
If the Buyer further deals with such proceeds, the Buyer
will manage that dealing or dealings in a manner having
the result that the proceeds remain identifiable or traceable
to the original goods. If the Buyer sells the goods
prior to payment for the same to the Seller, all claims
which the Buyer holds against third parties shall be handed
over to the Seller. |
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9.4 |
If the Seller perfects any
security interest that the Seller has in relation to the goods,
the Buyer will not do anything that results in the Seller having
less than the security or priority position in respect of the PPSA
that the Seller assumed at the time of that perfection. |
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9.5 |
The Buyer irrevocably gives
the Seller and its agents the right to enter upon the Buyer's premises,
without giving notice and without being in any way liable to the
Buyer, or to any person or company claiming through the Buyer, to
take possession of the goods while the Buyer owes money to the Seller,
or if the Seller has sufficient cause to exercise any rights that
the Seller has under section 109 of the PPSA. |
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9.6 |
If the Seller is a secured
party under the PPSA: |
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| 9.6.1 |
the parties contract out
of Part 9 of the PPSA in the following manner: the rights
and obligations contained in sections 114, 125, 129, 132,
133 and 134 of that Part do not apply between the Seller
and the Buyer; |
| 9.6.2 |
the Buyer waives its rights granted
in sections 121 and 131 of the PPSA. Further, in accordance
with section 148 of the PPSA, the Buyer waives its right
to receive any financing statement or financing change statement
from the Seller; and |
| 9.6.3 |
The parties contract out of the Buyer’s
right to receive a statement of account under section 116
of the PPSA and the debtor’s right to receive notice of
a secured party’s proposal to retain collateral uder section
120(2) of the PPSA. |
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9.7 |
The Buyer will assist the
Seller by completing any formalities or providing any information
required by the Seller such that the Seller may establish and maintain
the best security position that it is entitled to under the PPSA. |
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10 |
Warranties |
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10.1 |
If goods supplied to
the Buyer by the Seller are stated as being covered by a warranty,
the provisions of this clause 10 constitute the warranty, except
as modified in writing by the Seller. |
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10.2 |
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10.3 |
Replacements or work carried
out on the goods do not extend the warranty period beyond that calculated
under clause 10.2. The warranty period for replacement parts
expires with the warranty for the goods as a whole. |
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10.4 |
The Seller will (at its option)
repair (or reimburse the Buyer for the cost of repairs) or replace
the goods during the warranty period where the goods are defective
or malfunction in the ordinary course of usage provided that: |
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| 10.4.1 |
the goods have been used
in a manner suitable to the design of the goods and the
failure is not due directly or indirectly to the improper
use of the goods; |
| 10.4.2 |
the Seller is not required to refund
the purchase price; |
| 10.4.3 |
any defect or malfunction is not the
result of incorrect installation by a person other than
the Seller, inadequate or improper power, gas and/or water
supply or connection, power surge or fluctuation of any
kind, inadequate ventilation or drainage, fire, or flooding. |
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10.5 |
The warranty does not cover: |
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| 10.5.1 |
glass or light bulbs; |
| 10.5.2 |
any goods that have had their serial
plate removed or tampered with; |
| 10.5.3 |
ordinary wear and tear; |
| 10.5.4 |
any goods that have been serviced,
dismantled, repaired or altered by personnel not authorised
by the Seller; |
| 10.5.5 |
any field labour and mileage not authorised
by the Seller; |
| 10.5.6 |
any defect or malfunction caused by
accident or other event outside the reasonable control of
the Buyer. |
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10.6 |
The warranty only applies
if: |
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| 10.6.1 |
upon discovery of the defect
or malfunction the Buyer immediately ceases and does not
continue to use or operate the goods without the Seller’s
consent; |
| 10.6.2 |
the Buyer makes a claim to the Seller
in writing within 7 days of discovering the defect or malfunction; |
| 10.6.3 |
the claim is made within the warranty
period described in clause 10.2 |
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10.7 |
The Seller will respond to
a warranty claim within a reasonable time having regard to the time
required to reasonably investigate the claim and assess the action
required. |
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10.8 |
The limits on liability levels
in clause 11.2 apply to liability under any warranty and accordingly
the Seller is not obliged to expend more on carrying out its obligations
under any warranty than is set out in clause11.2. |
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10.9 |
The warranty is personal to
the original Buyer and is not transferable or assignable in any
way without the Seller’s written consent. |
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10.10 |
Clause 10 is subject to clause
6.2. |
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11 |
Remedies |
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11.1 |
The Buyer must promptly examine
the goods and their installation. Subject to any written warranty
given by the Seller, any claim by the Buyer will be deemed to be
irrevocably waived if not made within 30 days of the date of deemed
delivery of the goods to the Buyer under clause 3.1. |
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11.2 |
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12 |
Disputes
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12.1 |
The Buyer must give the Seller
notice in writing forthwith if the Buyer disputes any invoice. The
parties shall discuss the disputed amount in good faith and attempt
to resolve the dispute within 20 days of the date of the Buyer's
notice. Pending resolution of the dispute the Buyer shall
forthwith pay that part of the invoice not in dispute. |
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12.2 |
Either party may refer any
dispute between the parties to arbitration under the Arbitration
Act 1996 or any Act passed in amendment thereof or in substitution
therefor provided that any amount awarded is limited as set out
in clause 11.2. |
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13 |
Waiver
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No waiver or omission to act
by the Seller at any time shall affect or impair in any way or the
rights of the Seller to avail itself of the remedies it may have. |
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14 |
Privacy Act 1993 |
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14.1 |
The information contained
in any application or order by the Buyer is being collected by the
Seller primarily for the purpose of determining the creditworthiness
of the Buyer and for the registering of a financing statement on
the Personal Property Securities Register. The information
collected will be used by the Seller or any third party nominated
by the Seller for this purpose. The Seller shall hold the
information collected and the Buyer acknowledges the voluntary supply
of the information. The Buyer acknowledges that should the
information requested by the Seller be withheld the Seller is entitled
to reject any application or order by the Buyer at the Seller's
discretion. |
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14.2 |
The Seller acknowledges the
Buyer's right of access to and correction of the information collected
concerning the Buyer. |
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14.3 |
The Buyer agrees that the
Seller may obtain information about the Buyer from any person (including
any credit or debt collection agency) in the course of the Seller's
business including credit assessment, debt collecting and direct
marketing activities, and the Buyer consents to any person providing
the Seller with such information. |
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14.4 |
The Buyer agrees that the
Seller may use any information it has about the Buyer relating to
the Buyer's creditworthiness and give that information to any other
person, including any credit or debt collection agency, for credit
assessment and debt collection purposes. The Buyer agrees
that any other information collected by the Seller about the Buyer
may be used by the Seller in the course of its business. |
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14.5 |
The Buyer shall notify the
Seller of any change in circumstances which may affect the accuracy
of the information provided by the Buyer to the Seller. |
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15 |
Intellectual Property |
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15.1 |
All of the Seller’s trademarks
or other intellectual property rights in respect of the goods remain
the Seller’s property and the Buyer may not use, remove, interfere
with or alter them in any way. |
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15.2 |
The Buyer must notify the
Seller immediately if it receives a claim from a person alleging
that it is the owner of any intellectual property rights relating
to the goods and if the Seller considers itself to be affected,
the Seller shall be entitled to completely control the defence or
settlement of the claim. |
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16 |
Partial Invalidity |
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If any part or all of a provision
is held to be illegal or unenforceable for any reason, such illegality
or unenforceability shall be applicable only to that part or all
of the said provision or provisions, and the remainder of the said
provision or provisions and these terms and conditions shall remain
in full force and effect. |
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17 |
Entire Agreement |
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Unless expressly provided
otherwise in any written agreement between the Seller and the Buyer,
these terms and conditions constitute the entire agreement, understanding
and arrangements (expressed and implied) relating to the sale of
goods from the Seller to the Buyer and supersede and cancel any
previous agreement, understanding and arrangement relating thereto
whether written or oral. |
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18 |
Amendment |
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These terms and conditions
may be amended by the Seller giving the Buyer notice in writing
of the amendment. |
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19 |
Definitions and Construction |
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The following terms have the
meaning set out below: |
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19.1 |
“Accessions”, “Commingled
Goods”, “Inventory”, “Perfect”, “Non-Purchase Money Security Interest”,
“Personal Property Securities Register”; “Proceeds”, “Purchase Money
Security Interest”, “Secured Party”, “Security Interest” and “Verification
Statement” have the meaning given to such terms in the PPSA or that
may be taken from their use in the PPSA. |
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19.2 |
"Buyer" means any
party placing an order for goods from the Seller. |
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19.3 |
“goods” means the goods ordered
from the Seller by the Buyer. |
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19.4 |
“Default Rate” means 3% per
annum above the Seller’s bank overdraft rate at the time the default
is made. |
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19.5 |
“PMSI” means a Purchase Money
Security Interest as this term is defined in the PPSA. |
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19.6 |
"PPSA" means the
Personal Property Securities Act 1999 and associated regulations. |
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19.7 |
"Seller" means
Commercial Refrigeration and Wholesale Limited. |
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19.8 |
“Services” means services
provided by the Seller to the Buyer. |
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