Terms and Conditions
TERMS AND CONDITIONS OF TRADE – GOODS AND SERVICES
In these Terms and Conditions of Trade:
“Account” means the Customer’s account with the Vendor
“Customer” means the Person or Entity making the application or any person acting with ostensible authority on behalf of the Customer.
“Goods” means goods supplied by the Vendor to the Customer at any time.
“Services” means services supplied by the Vendor to the Customer at any time.
“Guarantor” means any party executing a guarantee of the Account with the Vendor.
“Order” or “Orders” means the order or orders of the Customer to the Vendor to supply Goods and or Services.
“PPSA” means the Personal Property Securities Act 1999.
“Vendor” means “NZ Survivor Limited”
(a) Orders will be on such forms as the Vendor may require from time to time.
(b) Minimum orders shall be determined and notified by the Vendor, orders less than the minimum stated by the Vendor may incur a handling charge.
Each Order shall constitute acceptance by the Customer of these Terms and Conditions of Trade.
Prices are subject to change without notice. All Orders will be charged at the prices prevailing at the date of delivery of the Goods and or Services.
Where the Order makes provision for delivery then delivery shall take place at the place stated in the Order. If no place is indicated then delivery shall be made at the physical address of the Customer set out in this application.
- ACCESS FOR DELIVERY
(a) If the Customer is not in a position to accept or take delivery of the Goods and or Services as scheduled the Customer shall be responsible for any storage charges and any additional charges caused thereby.
(b) Where supply of the Goods and or Services is required of the Vendor by the Customer and supply is required to be co-ordinated with other trades the Customer shall provide the Vendor with a schedule detailing all relevant information relating to the supply with sufficient time allowed for the Vendor to meet the delivery or supply dates.
(c) The delivery or supply period shall be extended to cover delays caused by strikes, lockouts, prohibitions, non-availability of materials or any circumstances beyond the control of the Vendor.
- HEALTH AND SAFETY IN EMPLOYMENT ACT 1992
The Vendor shall be responsible for the actions of its employees in terms of section 15 of the Health and Safety in Employment Act 1992 (“HSEA”). The Customer shall be responsible for compliance with the HSEA in respect of the Customer’s site and shall advise the Vendor prior to commencement of any work or any hazards on the Customers site.
- TIME OF PERFORMANCES
Time shall in no case be of the essence. The Vendor shall not be responsible for any delay in the delivery of the Goods and or Services and the Customer shall not be entitled to cancel orders because of any such delay. Dates for delivery and supply are given in good faith and are not to be treated as a condition of sale or purchase. Delivery of Goods to a carrier is deemed to be delivery to the Customer.
- TERMS OF PAYMENT
(a) Unless otherwise specified, payments for all Goods and or Services shall be made;
(1) Immediately upon delivery of any Goods and or Services.
(2) At the point of sale in respect of all cash sales of Goods and or Services..
(3) No later than the 20th of the month following the Delivery and or Supply.
(b) The Vendor may, at its sole discretion, require payment of a deposit by the Customer prior to processing or delivery and or supply.
(c) An administration fee may be charged on all overdue amounts in addition to any other charges pursuant to this clause.
(d) Interest will accrue on all amounts overdue at the rate of 2.5% per month and will be calculated on a day by day basis until payment is made in full.
(e) All reasonable costs of or incurred by the Vendor as result of a default by the Customer including but not limited to administration charges, debt collection costs and legal costs as between solicitor, agents and client shall be payable by the Customer.
(f) If the Customer defaults in any payment or commits any act of bankruptcy or any act which would render it liable to be wound up or if a resolution is passed or proceedings are filed for the winding up of the Customer or if a receiver is appointed for all or any assets of the Customer, the Vendor may cancel any Order without prejudice to any other rights it may have and payment for all completed Orders shall immediately become due.
Where a quotation is given by the Vendor for the supply of Goods and or Services:
(a) Unless otherwise agreed the quotation shall be valid for thirty (30) days from the date of issue.
(b) The quotation shall be exclusive of Goods and Services Tax unless specifically stated to the contrary.
(c) The Vendor reserves the right to alter the quotation because of circumstances beyond its control.
- TAXES AND DUTIES
Unless expressly included in any quotation given by the Vendor, Goods and Services Tax and other taxes and duties assessed or levies in connection with the supply of the Goods and or Services to the Customer are not included in the price and shall be the responsibility of the Customer or, where the payment of such taxes and duties is the responsibility of the Vendor at law, the price shall be increased by the amount of such taxes or duties.
- PAYMENT ALLOCATION
The Vendor may in its discretion allocate any payment received from the Customer towards any invoice that the Vendor determines and may do so at the time of receipt or at any time afterwards. On any default by the Customer the Vendor may re-allocate any payments previously received and allocated. In the absence of any payment allocation by the Vendor, Payment shall be deemed to be allocated in such manner as preserves the maximum value of the Vendor’s purchase money security interest in the Goods and or Services.
- ERRORS OR OMISSIONS
Clerical errors or omissions, whether in computation or otherwise in the quotation, acknowledgement or invoice shall be subject to correction.
From the time of dispatch to the Customer by the Vendor, risk in all Goods supplied shall pass to the Customer and any loss, damage or deterioration to the Goods shall be borne by the Customer. The Customer shall notwithstanding any loss, damage or deterioration to the Goods remain liable to pay for the Goods.
- OWNERSHIP / GENERAL LIEN
(a) The Vendor shall retain ownership of all Goods supplied until it receives payment in full of all amounts owing by the Customer for all Orders.
(b)If any of the Goods are incorporated in or used as materials for other goods before payment is made ownership of the whole of the other goods shall be and remain with the Vendor until full payment is made. The Vendor’s Security Interest in the Goods shall continue in the terms of section 82 of the PPSA.
(c) The Vendor shall have a right to stop and retrieve the Goods in transit whether or not ownership has passed.
Until payment is made in full by the Customer, the Customer agrees to:
(a) Ensure the Goods are readily identifiable at all times as the property of the Vender
(b) Hold all Goods as trustee for the Vendor and will deal with the Goods for and on behalf of the Vendor, but will not hold the Customer out as an agent to any third parties.
(c) If the Goods are resold, the proceeds of resale will belong to the Vendor and the Customer shall keep the proceeds of the sale in a separate account for which separate records are kept.
- MERGER WITH OTHER GOODS
If the Goods are attached, fixed or incorporated into any property of the Customer, by way of any manufacturing or assembly process by the Customer or any third parties or otherwise, title in the Goods and Services shall remain with the Vendor until the Customer has made full payment for all Goods and Services and where those Goods are mixed with other property so as to be part of or constituent of any new goods title to those new goods shall be deemed to be assigned by the Customer to the Vendor.
- EXPORT PROHIBITION
(a) The Goods provided pursuant to these Terms and Conditions of Trade are sold for use in New Zealand only and are not to be exported elsewhere, directly or indirectly without prior agreement of the Vendor.
(b) In the event that Vendor consents to the export of the Goods the Customer is responsible for all costs and compliance with any export regulation in force within the country for which the Goods are destined.
- RECOVERY OF GOODS
(a) In the event of non-payment or if the Customer’s Account is overdue the Vendor shall be entitled without prejudice to any right it has at law or in equity to enter the place where the Goods are stored whether the Customer’s premises or property or the premises or property of a third party for the purpose of recovering and taking possession of the Goods Supplied.
(b) The Customer warrants to the Vendor that where the Goods are stored on the premises or the property of a third party the Customer is acting as agent for the third party and has the full authority of the third party to authorise entry onto the premises or property of the third party for the purpose of recovering the Goods without releasing the Customer from liability.
(c) The Vendor will not be responsible for any damage reasonably caused in the course of the removal of the Goods supplied either in the possession of the Customer or a third party and the Customer indemnifies the Vendor in respect of damage caused in the removal of the Goods from the property of a third party.
(d) The Vendor may resell the Goods and apply the proceeds towards payment of the Customer’s outstanding Account with the Vendor. Any shortfall will remain the liability of the Customer. The Customer indemnifies the Vendor for all costs and expenses including legal costs, debt collection and field service costs as between solicitor, agent and client which the vendor may incur in recovering the Goods and any monies owed to it.
(a) Unless otherwise specified, The Vendor gives no warranty express or implied as to the quality, description or fitness for any particular purpose of the Goods and or Services.
(b) Where applicable, manufacturer’s warranties will attach to the Goods.
(c) Where the Consumer Guarantees Act 1993 applies the Customer shall have all the rights and remedies provided under this Act but no others. The Customer warrants to the Vendor that any Goods and Services supplied by the Vendor under any Order with the Vendor are being acquired by the Customer for the purpose of its business and the Consumer Guarantees Act 1993 does not apply to the supply of those Goods and Services.
(d) Where the Goods and or Services supplied are defective in terms of any condition warranty or guarantee or otherwise do not conform to the Order, the Vendor will at its discretion replace or repair any faulty Goods or pay the cost of replacing them, but only if the claim is made by the Customer within seven days of delivery of the Goods and or Services time being of the essence.
The Customer shall not be entitled to cancel an Order other than as allowed pursuant to these Terms and Conditions of Trade.
(a) The Customer shall not be entitled to return the Goods or cancel an Order other than as allowed pursuant to these Terms and Conditions of Trade.
(b) No return of Goods will be accepted by the Vendor or claims recognised unless the packing and or purchase order and or delivery slip number is quoted. Return of Goods will not be accepted unless the return is agreed by the Vendor beforehand, nor if the return is made more than seven days after the receipt of Goods.
- PERSONAL PROPERTY SECURITIES ACT 1999
(a) The Customer hereby acknowledges that these Terms and Conditions of Trade constitute a security agreement which creates a security interest in favour of the Vendor in all Goods and Services previously supplied by the Vendor to the Customer (if any) and all after-acquired Goods and Services supplied by the Vendor to the Customer (or for the Customer’s Account) to secure the payment from time to time and at a time, including future advances. The Customer agrees to grant a “Purchase Money Security Interest” to the Vendor, as that term is defined in the PPSA
(b) The Customer acknowledges and agrees that by assenting to these terms the Customer grants a security interest (by virtue of the retention of title clause in these Terms And Conditions of Trade) to the Vendor and all Goods and Services previously supplied by the Vendor to the Customer (if any) and all after acquired Goods and Services supplied by the Vendor to the Customer (or for the Customer’s Account) and these terms shall apply notwithstanding anything express or implied to the contrary contained in the Customers purchase order.
(c) The Customer undertakes to:
(1) Sign any further documents and or provide any further information (which information the Customer warrants to be complete, accurate and up to date in all respects) which the Vendor may reasonably require to enable registration of a financing statement or financing change statement on the Personal Property Securities Register (“PPSR”);
(2) Not register a financing change statement as defined in section 135 of the PPSA or make a demand to alter the financing statement pursuant to section 162 of the PPSA in respect of the Goods without the prior written consent of the Vendor;
(3) Give the Vendor not less than 14 days prior written notice of any proposed change in the Customer’s name and or any other changes in the Customer’s details (including but not limited to changes in the Customer’s address, phone numbers, facsimile number, email address, trading name or business practice);
(4) Pay all costs incurred by the Vendor in registering and maintaining a financing statement (including registering a financing change statement) on the PPSR and or enforcing or attempting to enforce the security interest created by these Terms and Conditions of Trade including executing subordination agreements; and
(5) Be responsible for the full costs incurred by the Vendor (including actual legal fees and disbursements on a solicitor, agent and client basis) in obtaining an order pursuant to section 167 of the PPSA.
(6)The Customer waives any rights it may have under sections 116, 119, 120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA upon enforcement
(d) Pursuant to section 148 of the PPSA, unless otherwise agreed to in writing by the Vendor, the Customer waives right to receive the verification statement in respect of any financing statement or financing change statement relating to the security interest.
(e) To the maximum extent permitted by law, the Customer waives its rights and, with the Vendor’s agreement, contracts out its rights under sections referred to in sections 107(2), 8€ and (g) to (l) of the PPSA.
(f) The Customer agrees that nothing in section 113, 114 (1)(a), 117(1)(c), 133 and 134 of the PPSA shall apply to these Terms and Conditions of Trade, and, with the Vendor’s agreement, contracts out of such sections.
(g) The Customer and the Vendor Agree that section 109(1) of the PPSA is contracted out of in respect of particular Goods if and only for as long as the Vendor is not the secured party with priority over all other secured parties in respect of those Goods.
(h) The Customer agrees that immediately on request by the Vendor the Customer will procure from any persons considered by the Vendor to be relevant to its security position such agreement and waivers as the Vendor may at any time require.
- EVENTS OF DEFAULT
All Payments shall become immediately due to the Vendor and the Vendor may at its option suspend or terminate these Terms and Conditions of Trade and or exercise any of the remedies available to it under these Terms and Conditions of Trade in the event that:
(1) A receiver is appointed over any of the assets or undertaking of the Customer;
(2) an application for the appointment of a liquidator is filed against the Customer which remains unsatisfied for a period of ten (10) days, or any of the conditions necessary to render the Customer Liable to have a liquidator exist, or a liquidator is appointed;
(3) The Customer goes into voluntary liquidation, amalgamates with another company or acquires its own shares in accordance with the Companies Act 1993;
(4) The Customer suspends payments to its creditors or makes or attempts to make an arrangement or composition or scheme with its creditors; or
(5) The Customer becomes insolvent within the meaning of the Insolvency Act 2006 or is, becomes, or is presumed to be unable to pay its debts as they fall due as defined in section 287 of the Companies Act 1993, or commits any act of bankruptcy.
- AUTHORITY TO SELL GOODS SUPPLIED
Notwithstanding that title in all Goods is retained by the Vendor, the Customer is authorised to sell and or use the Goods in the ordinary course of business provided that the authority may be removed by written notice if the Vendor considers the credit of the Customer to be unsatisfactory or if the Customer is in default in the performance of its obligations to the Vendor and shall be deemed automatically revoked if the Customer commits any act of bankruptcy or any act which would render it liable to be wound up or if a resolution is passed or proceedings are filed for the winding up of the Customer or a receiver is appointed for all or any assets of the Customer.
- SALES OF GOODS SUPPLIED
(a) Where Goods in respect of which property has not passed to the Customer are sold by the Customer in the ordinary course of business, the book debt created on the sale and the proceeds of sale when received shall be held by the Customer for the Vendor in terms of section 45 of the PPSA.
(b) Where any proceeds of sale are placed in the Customer’s bank account THE FUNDS IN THE Customers bank account shall be deemed to be held in trust for the Vendor to the extent of proceeds of sale.
(c) Where any payments are made from the customer’s bank account otherwise than to the Vendor payment shall be deemed to have been made from all other funds in the Customer’s bank account and not from the funds held on trust for the Vendor.
(d) The trust obligation imposed by this clause and the Vendor’s entitlements under the PPSA shall continue for so long as the Vendor is unpaid for all Goods and Services supplied to the Customer.
- SECURITY INTEREST
The Customer gives the Vendor a Security Interest in all of the Customer’s present and after acquired property in which Goods and Services and materials supplied or financed by the Vendor have been attached or incorporated.
Without prejudice to such other rights as the Vendor may have pursuant to these Terms and Conditions of Trade, the Vendor reserves the right to request from the Customer such security as the Vendor may from time to time think desirable to secure the Vendor all sums due to the Vender and may refuse to supply further Goods and Services to the Customer until such security is given.
(a) The Vendor’s liability to the Customer shall be limited to the value of the order supplied.
(b) The Sale of Goods Act 1908, the Fair Trading Act 1996 and other statues may imply warranties and conditions or impose obligations upon the Vender which cannot by law (or which can only to a limited extent by law) be excluded or modified. In respect of any such implied warranties, conditions or terms imposed on the Vendor the Vendor’s liability shall, where it is allowed , be excluded or if not able to be excluded only apply to the minimum extent required by the relevant statute.
(c)Except as otherwise provided above the Vendor shall not be liable for any loss or damage of any kind whatsoever, arising from the supply of Goods and Services by the Vendor to the Customer including consequential loss whether suffered or incurred by the Customer or another person and whether in contract or tort (including negligence) or otherwise and irrespective of whether such loss or damage arises directly or indirectly from the Goods and Services provided by the Vendor to the Customer.
(d) The Customer shall indemnify the Vendor against all claims and loss of any kind whatsoever however caused or arising and without limiting the generality of the foregoing of this clause whether caused or arising as a result of the negligence of the Vender or otherwise, brought by any person in connection with any matter, act, omission, or error by the Vendor its agents or employees in connection with the Goods and Services.
- SUITABILITY OF GOODS
The Customer must satisfy itself that the Goods and Services as ordered are fit and suitable for the purpose for which they are required. The Vendor makes no warranties or representation and expressly negates any implied or expressed condition that the Goods and Services will be suitable for a particular purpose or use for which the Customer may use them. The Customer accepts all risk and responsibility for consequences arising from the use of the Goods and Services whether singularly or in combination with other Goods and Services.
- PERSONAL GUARANTEE OF COMPNAY DIRECTORS OR TRUSTEES
If the Customer is a Company or a Trust, The Director(s) or Trustee(s) signing this contract, in consideration for the Vendor agreeing to supply Goods and Services and grant credit to the Customer at their request, also sign this contract in their personal capacity and jointly and severally personally guarantee as principle debtors to the Vendor the payment of any and all moneys now or hereafter owed by the Customer to the Vendor and indemnify the Vendor against non-payment by the Customer. Any personal liability of a signatory hereto shall not exclude the Customer in any way whatsoever from the liabilities and obligations contained in these Terms and Conditions of Trade. The signatories and the Customer shall be jointly and severally liable under these Terms and Conditions of Trade and for the payment of all sums due hereunder.
(a) The Customer shall not assign all or any of its rights or obligations under this contract without the written consent of the Vendor.
(b) The Vendor is entitled at any time to assign to any other party all or any part of the debt which is owing to the Vendor.
(c) The Vendor may also assign or sub-contract any part of the work which is to be performed under any contract.
(d) In respect of any assignment by the Vendor pursuant to this clause, the Assignee shall be entitled to the full rights of the Vendor.
(a) In the event of any dispute arising between the Vendor and the Customer, such dispute shall in the first instance be referred to mediation for resolution.
(b) In the event that resolution by mediation is not achieved to the satisfaction of both parties within 30 days of referral to mediation, either party may then take legal action to resolve the dispute.
(c) Nothing in this clause prevents the Vendor from taking legal action to enforce payment of any debt due, nor where required seek interlocutory or injunctive relief.
All notices required or committed under these Terms and Conditions of Trade are to be served as provided in sections 353, 359, 360, and 361 of the of the Property Law Act 2007 and section 387 of the Companies Act 1993, or by facsimile, in which case notice is deemed to be given the day after sending.
If any provision of this contract shall be invalid, void or illegal or unenforceable the validity existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
- CHANGES OF GENERAL TERMS AND CONDITIONS
(a) The Vendor may at any time refuse an order by the Customer or decline to approve any application by the Customer for any reason whatsoever.
(b) The existence of an account by the Customer with the Vendor does not automatically entitle the Customer to credit in the future.
(c) Failure by the Vendor to enforce any of the Terms and Conditions contained in these Terms and Conditions of Trade shall not be deemed to be a waiver of any of the rights or obligations the Vendor has under these Terms and Conditions of Trade.
(d) The Vendor may from time to time by way of written notice to the Customer amend, add to or repeal the trading conditions covered by this Agreement or may substitute any fresh trading conditions and such amendment, addition or substitute trading conditions shall be binding on the Customer fourteen (14) days after the date of delivery of the notice.
- FORCE MAJEURE
Neither the Vendor nor the Customer will be liable to the other for any breach of this Agreement by any extraordinary occurrences which are beyond the reasonable control of the party in question.
- ENTIRE AGREEMENT
These Terms and Conditions of Trade constitute the entire agreement and supersede and extinguish all prior agreement and understandings between the Vendor and the Customer.
- OTHER AGREEMENTS
If there is inconsistency between these Terms and Conditions of Trade and any other submitted by the Customer or any other arrangement between the Vendor and the Customer, these Terms and Conditions of Trade prevail unless otherwise agreed in writing by the parties.
- GOVERNING LAW
These Terms and Conditions of Trade will be interpreted in accordance with and governed by the laws of New Zealand and the New Zealand Courts will have exclusive jurisdiction over any dispute in relation to the Goods and Services.