Terms & Conditions
1. FORMATION OF CONTRACT
1.1 Any order sent to the Seller by the Purchaser shall be accepted entirely at the Discretion of the Seller, and if so accepted, will only be accepted upon these conditions (hereinafter referred to as the “Conditions”).
1.2 Each order which is so accepted shall constitute an individual legal binding contract between the Seller and the Purchaser and such contract is hereafter referred to in these conditions as an “Order”.
1.3 These Conditions shall override any contrary, different or additional terms or conditions (if any) contained on or referred to in an order form or other documents or correspondence from the Purchaser, and no addition or alteration or substitution of these terms will bind the Seller or form part of any Order unless they are expressly accepted in writing by a person authorized to sign on the Sellers behalf.
All goods supplied by the Seller shall be in accordance with:
2.1 The current edition of the relevant product description leaflet as published from time to time (copies of which are available from the Seller upon request) and
2.2 Those further specification and descriptions (if any) expressly listed or set out on the face of the Order or the Order acknowledgement given by the Seller. No other specification or descriptive material, written or oral representation, correspondence or statement, promotional or sales literature shall form part or be incorporated by reference into the Order.
The Purchaser shall be deemed to have accepted all Goods upon their delivery by the Seller to the address specified in the Order. In the event that having accepted the Goods the Purchaser asks the Seller to replace the Goods other than for reason or defect the Seller reserves the right to make a restocking charge.
4. DELIVERY AND RISK
4.1 Unless otherwise stated in the Order, the price quoted excludes delivery to the address specified in the Order and this price is ex works, continuation “Freight and transit insurances are to the account of the Purchaser unless specified to the contrary”.
4.2 Any time or date for delivery given by the Seller is given by the Seller in good faith, but is estimate only and not to be treated as a condition of sale.
4.3 Risk in the goods shall pass to the Purchaser upon delivery.
4.4 The Seller will be entitled to refuse to deliver the Goods if there are any outstanding monies owing to the Seller by the Purchaser.
5. TITLE AND PAYMENT
5.1 The Seller warrants that (except in relation to intellectual property rights of third parties as referred to in condition 5.3) the Seller has good title to the Goods and it will transfer such title as it may have in the Goods to the Purchaser pursuant to condition 5.5.
5.2 The Seller warrants that it is not aware of any actual or alleged infringements of any intellectual property rights of third parties which related to the Goods other than those (if any) which the Seller has disclosed to the Purchaser prior to acceptance of the Order.
5.3 The Seller shall have no liability to the Purchaser (other than as provided in Condition 10) in the event that the Goods to be supplied under the Order infringe any intellectual property rights of a third party (including without limitation by reason of their possession, sale or use, whether alone or in association or combination with any other Goods), the Seller gives no warranty that the Goods to be supplied under the Order will not infringe as aforesaid, and all conditions, warranties, stipulations or other statements whatsoever relating to such infringement or alleged infringement (if any), whether express or implied by statute, at common law or otherwise howsoever, are hereby excluded.
5.4 Title to the Goods comprised in each consignment shall not pass to the Purchaser until the Purchaser has paid the price to the Seller, but, even though title has not been passed, the Seller shall be entitled to sue for the price once its payment has become due.
5.5 a) Unless the Seller has agreed in writing to extend credit to the Purchaser, the terms of payment are:
i) Remittance of cleared funds prior to delivery to a bank account nominated by the Seller, or
ii) Establishment of a confirmed irrevocable letter of credit at sight of bill of lading, drawn on a recognized international banking establishment.
b) Invoiced amounts are strictly net unless a specific written agreement to the contrary exists.
c) The Seller reserves the right to treat each separate delivery of Goods or Services as a separate contract to be paid for as if it were a separate Order.
d) Payment by cheque or any type of bank transfer will not be considered payment until the payment has been fully cleared through the banking system into the Seller’s bank account.
e) If the Purchaser fails to make any payment due to the Seller by the due date the Purchaser shall be liable to pay the Seller default interest on the unpaid overdue amount at a rate of 4% greater than the ten current Bank of New Zealand Limited overdraft rate for the period (but not less than 15% per annum) during which the amount remains unpaid which interest shall accrue on a daily basis until payment is received by the Seller, the Purchaser shall be liable to pay all costs (including legal costs on a solicitor and own client basis and collection costs incurred by the Seller or its agents, expenses, losses and damages) incurred by the Seller in relation to obtaining a remedy for the Purchaser’s failure to pay.
f) The Purchaser will make all payments due to the Seller in full without deduction or set-off and will pay Goods and services tax and any other government duties, levies or taxes in respect of the Goods and Services.
g) Where the Seller has agreed in writing to extend credit to the Purchaser, payment is to be made by the 20th of the month, following date of invoice, otherwise payment is to be made strictly in terms of the Sales Contract.
h) Where the Seller has agreed to extend credit to the Purchaser, the credit limit will be as advised by the Seller. The Seller may vary the credit imit from time to time. If the Seller extends further credit beyond the credit limit the Purchaser may be required to execute further documentation.
i) The Seller may at any time or from time to time without assigning any reason, refuse to extend any further credit or require further guarantees.
j) Notwithstanding clauses 5.5 (g) and 5.5 (h) above, all payments shall immediately become due to the Seller and the Seller may immediately terminate the Purchaser’s account and the contract if the Purchaser refuses to accept delivery of any Goods or Services, becomes insolvent, commits an act of bankruptcy, or if a receiver, liquidator or statutory manager is appointed in relation to the Purchaser or if the Purchaser makes or attempts to make an arrangement or composition with creditors or if the Seller believes on reasonable grounds that the Purchaser cannot pay for the Goods or Services.
If the Seller be unable, through circumstances beyond its control (including without limitation lack of shipping instructions from the Purchaser), to deliver the goods within 14 days after notification to the Purchaser or its agents that the goods are ready for delivery, the Seller shall be entitled to arranged storage on behalf of the Purchaser, whereupon delivery shall be deemed to have taken place, all risk in the Goods shall pass to the Purchaser, and delivery to the Purchaser of the relevant warehouse receipt shall be deemed to be delivery of the goods for the purpose of condition 4. All charges incurred by the Seller for storage insurance shall be paid by the Purchaser in accordance with the payment provisions herein.
7. DAMAGE IN TRANSIT
The Seller will replace free of charge any Goods proved to the Sellers satisfaction to have been damaged in transit provided that within 24 hours after delivery both Seller and the carriers have received from the Purchaser’s notification in writing of the occurrence of the damage and also, if and so far as practicable, of its nature and extent.
8. FORCE MAJEURE
8.1 The Seller shall not be under any liability for any failure to perform any of its obligations under the Order due to Forces Majeure. Following notification by the Seller to the Purchaser of such cause, the Seller shall be allowed a reasonable extension of time for the performance of its obligations.
8.2 For the purpose of this condition, “Force majeure” means fire, explosion, flood, lightning, Act of God, act of terrorism, war, rebellion, riot, sabotage, or official strike or similar official labour dispute, or events or circumstances outside the reasonable control of the party affected thereby
9.1 The Seller grants the following guarantee:
9.1.1 The Seller shall free of charge either repair, or at its option, replace defective Goods where the defects appear under proper use within (12 months) from the date of delivery, PROVIDED THAT:
188.8.131.52 Notice in writing of the defects complained of shall be given to the Seller upon their appearance, and
184.108.40.206 Such defects shall be found to the Sellers reasonable satisfaction to have arisen solely from faulty workmanship or materials, and
9.1.1. The defective Goods shall be returned to the Sellers premises at the Purchaser’s expense if so requested by the seller.
9.1.2 Any repaired or replaced Goods shall be redelivered by the Seller free of charge to the original point of delivery but otherwise in accordance with and subject to these Conditions of Sale save that the period of twelve months referred to in condition 9.1.1 shall be replaced by the unexpired portion of that period only.
9.1.3 Alternatively to condition 9.1.1 the Seller shall be entitled at its absolute discretion to refund the price of the defective goods in the event that such price shall already have been paid by the Purchaser to the Seller or, if such price has not been so paid, to relieve the Purchaser of all obligations to pay the same by an issue of a credit note in favour of the Purchaser in the amount of such price.
9.2 In respect of all Goods manufactured and supplied to the Seller by third parties the Seller will pass on to Purchaser (in so far as possible) the benefit of any warranty given to the Seller by such third parties and will (on request) supply to the Purchaser details of the Terms and Conditions of such warranty and copies of any relevant produce information sheets, technical data sheets or product leaflets issued by such third parties and the Purchaser shall be solely responsible to the entire exclusion of the Seller for complying with all of these.
9.3 The Sellers liability under this Condition shall be to the exclusion of all other liability to the Purchaser whether contractual, tortious or otherwise for defects in the Goods or for any loss or damage to or caused by the Goods, and all other conditions, warranties, stipulations or other statements whatsoever concerning The Goods, whether express, or implied, by statue, at common law or otherwise howsoever, are hereby excluded; in particular (but without limitation of the foregoing) the Seller grants no warranties regarding the fitness for purpose, performance, use, nature or merchantable quality of the Goods, whether expressed or implied, by statute, at common law or otherwise howsoever.
10. INTELLECTUAL PROPERTY RIGHTS
10.1 In the event that any claim is made against the Purchaser for infringement or intellectual Property Rights arising directly from the use by the Purchaser of the Goods, the Seller at its own expense, shall conduct any ensuing litigation and all negotiations for a settlement of the claim. The Seller will bear the costs of any payment (either by way of a lump sum or a continuing loyalty payment) made in settlement, or as a result of an award in a judgement against the Seller in the event of a litigation.
10.2 The benefit of Condition 10.1 is granted to the Purchaser by the Seller only in the event that the Purchaser shall give the Seller the earliest possible notice in writing of any such claim being made or action threatened or brought against it, shall make no admission of liability or take any other action in connection therewith, shall permit the Seller to have the conduct of the claim pursuant to Condition 10.1 and shall (at the Sellers expense) give all reasonable information, co-operation and assistance to the Seller (including without limitation lending its name to proceedings) in relation to the conduct of any claim, in addition, if it is made a condition of settlement by the Seller, or judgement awarded against the Purchaser, pursuant to Condition 10.1, the Purchaser shall return or destroy, as applicable, all infringing Goods still under its control subject to a refund by the Seller of any payments for such Goods already made (less a reasonable allowance for depreciation of the Goods by reason of their use (if any) by the Purchaser prior to their return or destruction as aforesaid).
10.3 The provision of Condition 10.1 shall not apply to any infringement caused by the Seller having followed a design or instruction furnished or given by the Purchaser not to use any of the Goods in a manner or for a purpose which shall have been specifically prohibited in writing by the Seller, nor to any infringement which is due to the use of such Goods in association or combination with any other procedure.
10.4 Any design or instruction furnished or given by the Purchaser shall not be such as will cause the Seller to infringe any intellectual property rights.
10.5 For the purpose of this condition, the capitalized term “Intellectual Property Rights” means Patents, Registered Designs, Registered Trademarks and Copyright only, having effect in New Zealand.
10.6 The foregoing states the Seller’s entire liability to the Purchaser and the Purchaser’s sole and exclusive remedies against the Supplier on connection with claims based or resulting from the infringement of intellectual property rights, of any kind whatsoever, of third parties.
Both the Seller and the Purchaser shall each keep confidential and shall not without prior consent in writing of the other disclose to any third party any technical or commercial information which it has acquired from the other as a result of discussions, negotiations and other communications between them relating to the Goods and the Order.
12. ECONOMIC LOSS
Notwithstanding anything contained in these Conditions or the Order, in no circumstances shall the Seller be liable, in contract, tort (including negligence or breech of statutory duty) or otherwise howsoever and whatever the cause thereof i) for any loss of profits, business contracts, revenues or anticipated savings, or ii) for any special indirect or consequential damage of any nature whatsoever.
13. LIMITATION OPF LIABILITY
Notwithstanding anything contained in these Conditions or the Order. The Sellers Liability to the Purchaser in respect of this Order, in contract, tort (including negligence or breech of statutory duty) or howsoever otherwise arising, shall be limited to the price of the goods specified in the Order.
14. TITLE RETENTION
14.1 The goods shall be at the Purchasers risk from delivery.
14.2 In spite of delivery having been made property in the Goods shall not pass the Seller until;
14.2.1 The Purchaser shall have paid the price plus GST in full; and
14.2.2 No other sums whatever shall be due from the Purchaser to the Seller
14.3 Until property in the Goods passes to the Purchaser in accordance with clause 14.2 the Purchaser shall hold the Goods and each of them on a fiduciary basis as bailee for the Seller. The Purchaser shall store the Goods (at no extra cost to the Seller) separately from all other goods in its possession and marked in such a way that they are clearly identified as the Sellers property.
14.4 Notwithstanding that the Goods (or any of them) remain the property of the Seller the Purchaser may sell or use the Goods in the ordinary course of the Purchaser’s business at full market value for the account of the Seller. Any such sale or dealing shall be a sale or use the Seller’s property by the Purchaser on the Purchaser’s own behalf and the Purchaser shall deal as principle when making such sales or dealings. Until property in the Goods passes from the Seller the entire proceeds of sale or otherwise of the goods shall be held in trust for the Seller and shall not be mixed with our money or paid into any overdrawn bank account and shall be at all material times identified as the Seller’s money.
14.5 The Seller shall be entitled to recover the Price (plus GST) notwithstanding that property in any of the Goods has not passed from the Seller. Deliver up such Goods as have not ceased to be in existence or resold to the Seller. If the Purchaser fails
14.6 Until such time as property in the Goods passes from the Seller the Purchaser shall, upon request to do so the Seller may enter upon any premises owned, occupied or controlled by the Purchaser where the Goods are situated and repossess the Goods. On the making of such request the rights of the Purchaser under clause 14.4 shall cease.
14.7 The Purchaser shall not pledge or in any way charge by way of security for any indebtedness any of the Goods which are property of the Seller. Without prejudice to the other rights of the Seller, if the Purchaser does so, all sums whatever owing by the Purchaser to the Seller shall forthwith become due and payable.
14.8 The Purchaser shall insure and keep insured the goods to the full Price against “all risks” to the reasonable satisfaction of the Seller until the date that property in the goods passes from the Seller and shall whenever requested by the Seller produce a copy of the policy of insurance, without prejudice to the other rights of the Seller, if the Purchaser fails to do so all sums whatever owing by the Purchaser to the Seller shall forthwith become due and payable.
15. PERSONAL PROPERTY SECURITIES ACT
15.1 Until full payment has been received in respect of the Good supplied, the Purchaser acknowledges and agrees that:
a) These terms and conditions constitute a security agreement for the purposes of section 36 of the Property Securities Act 1999 and,
b) A security interest is taken in all goods previously supplied by the Seller to the Purchaser (if any) all Goods that will be supplied in the future by the Seller to the Purchaser during the continuance of the parties relationship
15.2 The Purchaser undertakes to:
a) 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 reasonable require to register a financing statement of financing charge statement on the Personal Property Securities Register
b) Indemnity, and upon demand reimburse, the Seller for all expenses incurred in registering a financing statement or financing charge statement on the PPSR or releasing any Goods charged thereby;
c) Not register a financing charge statement in accordance with Regulation 9) or a charge demand (in accordance with Regulation 10) without prior written consent of the Seller
d) Give the Seller not less than 14 days prior written notice of any proposed change in the Purchaser’s name and/or any other change in the Purchaser’s details (including but not limited to, changes in the Purchaser’s address facsimile number, or business practice) and:
e) 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.
15.3 unless otherwise agreed to in writing by the Seller, the Purchaser waive sits right to receive a verification statement in accordance with Section 148 of the PPSA.
16. APPLICABLE LAW
The Order shall be considered a contract made in New Zealand and shall be governed in all respects by the law of New Zealand and the parties agree to submit to the non-exclusive jurisdiction of the New Zealand Courts.
“Purchaser” means the person who buys or agrees to buy the Goods from the Seller.
“Conditions” means the term and conditions of sales set out in this document and any special terms and conditions agreed in writing by the Seller.
“Delivery date” means the date specified by the Seller when the Goods are to be delivered.
“Goods” means the articles which the Purchaser agrees to buy from the Seller.
“Price” means the price for the Goods excluding carriage, packing, insurance and GST.
“Seller” means Mega Pacific NZ Pty Ltd