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1. PRICE
1.1 The Price contained in the Contract is based upon rates and costs as at the Date of the Contract or where the Contract arises from a quotation given by the Company, as at the date of quotation, of materials, transport, labor, customs duty, insurance and other rates and costs. The price shall be increased by the amount of any increase in the cost of any such items or any other factors (including any change in exchange rates) affecting the cost of supply, production and/or delivery of the Goods due to circumstances beyond the control of the Company between the above mentioned date and the date of delivery. 1.2 The Company shall only be responsible to comply with the regulations, bylaws, codes and standards specified in the Contract and the Company shall be under no liability what so ever for any failure to meet any other regulations, bylaws, codes and standards. In the event of there being any changes in any regulations, bylaws, codes or standards with which the Company is obliged to comply after the Date of the Contractor where the Contract arises from a quotation given by the Company after the date of quotations, then any additional costs in meeting any such changes shall be to the account of the Buyer. 2. TAXES AND DUTIES 2.1Unless expressly included in any quotation given by the Company, Goods and Services Tax and other taxes and duties assessed or levied in connection with the supply of the Goods to the Buyer are not included in the Price and shall be the responsibility of the Buyer or, where the payment of such taxes or duties is the responsibility of the Company at law, the Price shall be increased by the amount of such taxes or duties. Where Goods and Services Tax or other taxes or duties are expressly included in any quotation given by the Company, any increase in the amount of such Goods and Services Tax or other taxes and duties between the date of quotation and the date of delivery of the Goods shall be the responsibility of the Buyer and the Price shall be increased accordingly. 3. PAYMENT 3.1Unless otherwise expressly agreed, the Buyer shall pay a 50% deposit to the company on demand. 3.2Subject to any provision to the contrary in the Contract, payment shall be made prior to delivery of the Goods in accordance with section 53.3 Any additional payments due by the Buyer pursuant to any of the provisions of the Contract shall be paid at the time provided in the Contract, if no time is provided, within 7 days of payment being demanded in writing by the Company. 3.4If the Company shall at any time deem the credit of the Buyer to be unsatisfactory, it may require security for payment and may suspend performance of its obligations under the Contract until the provision of sufficient security. All costs and expenses of /or incurred by the Company as a result of such suspension and any recommencement shall be payable by the Buyer upon demand. 3.5The buyer shall not be entitled to withhold payment or to make any deductions or set-off what so ever from the Price without the prior written consent of the Company. 3.6Receipt of a cheque, bill of exchange or other negotiable instrument by the Company shall not constitute payment and the Buyer shall remain liable for the full Price until such cheque, bill of exchange, or negotiable instrument is paid in full. 4. INTEREST FOR LATE PAYMENT 4.1 Interest at a rate equal to 8% above the Company’s bank’s indicator lending rate from time to time calculated on a daily basis shall be payable on any moneys outstanding under the Contract from the date payment was due until the date payment is received by the Company but without prejudice to the Company’s other rights or remedies in respect of the Buyer’s default in failing to make payment on the due date. 5. DELIVERY 5.1Notwithstanding any obligation on the part of the Company to carry out any installation work hereunder, delivery shall be made at the place indicated in the Contract or, if no place shall be indicated in the Contract (and in the case of sales ex-works); delivery shall be made at the Company’s premises. If the Buyer fails or refuses or indicates to the Company’s premises. If the Buyer fails or refuses or indicates to the Company that the Buyer will fail or refuse to take or accept delivery, then the Goods shall be deemed to have been delivered when the Company was willing to deliver them. 5.2The Company reserves the right to deliver the Goods by installments and each installment shall be deemed to be a separate contract under the same provisions as the main Contract. Should the Company fail to deliver or make defective delivery of one or more installments this shall not entitle the Buyer to repudiate the main Contract. 5.3 Whether or not the Contract includes installation work and without prejudice to any other rights and remedies which it may have, the Company may charge storage and transportation expenses if the Buyer fails or refuses to take or accept delivery or indicates to the Company that the Buyer will fail or refuse to take or accept delivery and/or permit installation at the time specified in the Contract or at any other times that the Company is able to deliver and/or install the Goods. 6. RISK 6.1Risk of any loss, damage or deterioration of or to the Goods shall be borne by the Buyer from the date of delivery of the Goods. 6.2 Risk of any damage to the Goods arising out of any installation work carried out at the Buyer’s premises shall be borne by the Buyer excepting only where such damage is caused by the negligence of the Company, its servants, agents or contractors in carrying out any such installation work in which event such damage shall be the responsibility of the Company. 6.3 Until Property in the Goods passes to the Buyer, the Buyer shall keep the Goods insured in the names of the Company and the Buyer for their respective rights and interests and will produce to the Company upon demand such evidence as the Company may require to confirm the existence of such insurance. If the Buyer defaults in the performance of its obligations under this clause, the Company shall be entitled to insure the Goods and the cost of effecting such insurance shall be payable by the Buyer to the Company upon demand. 6.4 If any of the Goods are damaged or destroyed prior to the property there in passing to the Buyer, the Company shall be entitled, without prejudice to any of its other rights or remedies under the Contract, to receive all insurance proceeds which are payable in respect thereof (whether or not the purchase price of such goods has become payable under the Contract) and the production of this Contract by the Company shall be sufficient evidence of the Company’s right to receive payment of such insurance proceeds shall be applied by the Company as follows: (a) First, in payment of the purchase price of the goods which are damaged or destroyed, if un paid. (b) Secondly, in payment of the outstanding purchase price of any other goods supplied to the Buyer by the Company, whether under the Contract or otherwise. (c) Thirdly, in payment of any other sums payable to the company by the Buyer whether under the Contract or otherwise. (d) Thereafter any balance shall be paid to the Buyer. 7. PROPERTY 7.1 Property in the Goods shall be retained by the Company until the Goods are resold by the Buyer pursuant to the authority granted by clause 7.2 provided however that if the Goods are being purchased by the Buyer otherwise than for the purpose of resale, property in the Goods shall pass from the Company to the Buyer when the Price and all other moneys payable to the Company by the Buyer (whether under the Contract or otherwise) have been paid in full. 7.2 Not withstanding that property in the Goods is retained by the Company, the Buyer is here by authorized to sell the Goods in the ordinary course of business provided that such authority may be revoked by written notice from the company at anytime if the Company deems the credit of the Buyer to be unsatisfactory or if the Buyer is in default in the performance 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 in to any composition or arrangement with its creditors or (in the case of a company) do any act which would render it liable to be wound up or if a resolution is passed or a petition is filed for the winding up of the Buyer or a receiver is appointed in respect of all or any assets of the Buyer. 7.3 For so long as property in any of the Goods is retained by the Company, the Buyer will, if so required by the Company, store separately those goods in respect of which property is retained by the Company and clearly identify such goods as the property of the Company. 7.4 Where Goods in respect of which property has not passed to the Buyer are sold by the Buyer pursuant to the authority granted by clause 7.2 any book debt created upon the sale of such Goods and the proceeds of sale of such Goods, when received by the Buyer shall be held upon the 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 sales received by the Buyer shall be placed in a separate bank account and shall first be applied towards the satisfaction of all indebtness of the Buyer to the Company and there after shall be retained by the Buyer. Notwithstanding anything herein before contained, the Company hereby authorizes the Buyer to deal with any such proceeds of sale received by the Buyer as if such proceeds of sale were the absolute property of the Buyer provided that such authority may be revoked by written notice from the Company at any time if the Company deems the credit of the Buyer to be unsatisfactory or if the Buyer is in default in the performance of its obligations under the Contract or any other contract between the Company and the Buyer and shall be deemed needs to be made or given prior to the Company being able to proceed with installation of the Goods. Automatically revoked if the Buyer shall commit any act of bankruptcy enter in to any composition or arrangement with its creditors or (in the case of a company) do any act which would render it liable to be wound up or if a resolution is passed or a petition is filed for the winding - up of the Buyer or a receiver is appointed in respect of all or any assets of the Buyer. 8. INSTALLATION 8.1 Where this Contract provides for installation of the Goods to be carried out by the Company this Contract is upon the basis that it is the Buyer’s responsibility to: (a) Provide suitable access to the premises for the vehicles and equipment that the Company will need to use in carrying out such installation. (b) Provide all necessary services and amenities to enable the Company to carry out such installation. (c) Ensure that the premises and foundations are structurally sound and in a proper condition for the installation to proceed. (d) Provide all plant, materials and services required to be provided by the Buyer at such times and in such manner as to cause the Company no delay in carrying out such installation. (e) Provide safe and secure on site storage for materials and accessories supplied and used by the Company, its employees and contractors. (f)Maintain adequate insurance against all loss, damage, costs and expenses (including loss of profits and where installation or other work is to be performed by the Company, its servants, agents, contractors, damage to or destruction of the Buyer’s premises) which may be suffered or incurred by the Buyer and to ensure that the Company, its servants, agents and contractors are named as additional insured parties under all such insurance policies. 8.2 The Buyer shall advise the Company promptly of any decision or instruction which needs to be made or given prior to the company being able to proceed with installation of goods. 9. DELAY 9.1 If any item for delivery or installation of the Goods or completion of the Contract or any part there of shall be stated in the Contract, such time shall be approximate only and shall be deemed to be of the essence of the Contract. 9.2 The Company shall not be liable for failure to deliver or to carry out any installation or any commissioning or testing of the Goods or for any delay in delivery or in carrying installation or any commissioning or testing of the Goods or for any delay in delivery or in carrying of any installation or any commissioning or testing of the Goods where such failure or delay is occasioned by strike, combination of workmen, lockout, difficulty in procuring components or materials, shortage of labour, lack of skilled labour, delays in transit, failure or delay by the Buyer in performing any of his obligations here under, failure or delays by suppliers or subcontractors, failure delay or inability to obtain any necessary import or export licence foreign exchange control authorization or similar authorisation, legislative governmental or other prohibitions or restrictions, fire, flood, hostilities, commotions or other causes whatsoever (whether similar in nature or not to the foregoing) beyond the Company’s reasonable control. 9.3 If the manufacturer, supply or delivery of the Goods or where the Contract provides for the installation of the Goods, the installation or any commissioning or testing of the Goods or where the Contract provides for the installation of the Goods, the installation or any commissioning or testing of the Goods is delayed by reason of or as a result of an act, omission, default or request by or on behalf of the Buyer, the Company may without prejudice to its other rights and remedies, require payment by the Buyer of such portion of the price as represents the extent to which the Company has performed the Contract or carried out work required by the Contract up to the date such payment is required together with any expenses or additional costs incurred by the Company as a result of such delay. In the event of such delay continuing beyond a reasonable time, the Company may, without prejudice to its other remedies, terminate the Contract. 10 WARRANTY 10.1 The Company warrants that it will repair or make good any defects in materials or workmanship arising within the period specified in the Contract, where no time is specified, within 12 months from the date of delivery of the Goods, or where any installation work is carried out by the Company, arising within the time specified in the Contract, where no time is specified, within 12months of the completion of such installation work. No claim shall be accepted under such warranty unless written notice of the claim is received by the Company as soon as reasonably possible after the defect is discovered nor shall any claim be accepted if: (a) any attempt to repair the defective goods or any installation work is made by any person or persons not authorized by the Company to effect such repairs; or (b) the defective goods have been modified without the approval of the Company; or (c) the defective goods have not been stored, maintained, installed or operated in a proper manner. The company shall not be obliged to carry out any work nor be under any liability under or in relation to the foregoing warranty for so long as the Buyer is in default in relation to any payment or in the performance of any obligation under the Contract. 10.2 Should the Company elect to repair any defective goods, such repair shall be affected as such place as the Company may specify and the Buyer shall be responsible for shipment of the defective goods to and from the place or places so specified. 10.3 If the Goods or any component or components thereof are not manufactured by the Company, then the warranty contained in clause 10.1 shall not apply to such goods, component or components as are not manufactured by the Company and now warranties are given by the Company in respect of such goods, component or components. In the case where the manufacturer or supplier of any such goods, component or components provides any warranty, then the company (to the extent that it is able to do so) shall make such warranty available to the Buyer. 10.4 If the Company fails to perform its warranty obligations under clause10.1 the Company’s liability for such failure shall be limited to damages which shall be subject to the limitation contained in clause 11.3. 11. LIABILITY 11.1 Where the Contract provides for any testing or commissioning procedure or any other acceptance procedure in respect of the Goods, no claim shall be made by the Buyer if the Goods fail to comply with the requirements of the Contract at anytime after the successful completion of such testing, commissioning or acceptance procedures, subject at anytime after the successful completion of such testing, commissioning or acceptance procedures, subject however to the warranty in respect of defective materials or workmanship contained in clause10.1 11.2 The Company shall not be liable for any loss of profits or any consequential, in director special loss, damage or injury of any kind whatsoever suffered by the Buyer arising directly or indirectly from any breach of any of the Company’s obligations arising under or in connection with the Contract or from any cancellation of the Contract or from any negligence, misrepresentation or other act or omission on the part of the Company, its servants, agents or contractors nor shall Buyer’s servants, agents, contractors, customers, visitors, tenants, trespassers or other persons whom so ever (whether similar to the foregoing or not) Arising as aforesaid, The Buyer shall indemnify the Company against any claim by any of the foregoing persons in respect of any loss, damage or injury arising as aforesaid. 11.3 Not withstanding anything hereinbefore contained in this section11 or contained elsewhere in this Contract, the liability of the Company, whether in contractor pursant to any cancellation of the Contractor in tort or otherwise howsoever, in respect of all claim for loss, damage or injury arising from breach of any of the Company’s obligations arising under or in connection with the Contract, from any cancellation of the Contract or from any negligence misrepresentation or other act or omission on the part o the company, its servants, agents or contractors (including, without in any way limiting the foregoing, any loss, damage or injury arising as aforesaid from the carrying out of any installation work) shall not in aggregate exceed the Price. 12. DEFAULT AND INDEMNITY 12.1 If the Buyer defaults in the due payment of any moneys payable to the Company, whether under the Contractor otherwise, or if the Buyer is in default in the performance of its obligation under the Contractor any other contract between the Company and the Buyer, or if the Buyer shall commit any act of bankruptcy, enter into any composition or arrangement with its creditors or (in the case of a company) did any act which would render it liable to be wound up or if a resolution is passed or a petition is filed for the winding up of the Buyer or if a receiver shall be appointed overall or any of its assets, the Company, without prejudice to any other right it has at law or inequity, may, at its option, suspend or terminate the Contract, and payment for the Goods delivered and work performed up to the date of such suspension or termination and any other moneys payable here under shall immediately become due and payable. In an any of the foregoing events, the Company also reserves the right, as the agent of the Buyer, to enter upon the premises where the Goods are situated and take possession of and remove the same without being responsible for any damage thereby caused, and the Company may resell any or all of the Goods and apply the proceeds in or towards payment of the price and all other moneys owing to the Company by the Buyer. All costs and expenses of or incurred by the Company as a result of any such action together with transportation and storage charges shall be payable by the Buyer upon demand. Any suspension of the Contract by the Company shall not prevent it terminating the Contract during the period of suspension. 13. PATENTS AND COPYRIGHT 13.1 Copyright in all drawings, specifications and other technical information provided by the Company in connection with the Contract is vested in the Company. 13.2 If any Goods are to be supplied to the Buyer’s design, the Buyer hereby warrants that the manufacture and supply of such goods by the company will not infringe any patent, copyright, registered design or other rights of any other person and the Buyer agrees to indemnify the Company against any liability incurred by the Company including any costs and expenses in the event of any claim being made that the manufacture or supply of such goods by the Company infringes any patent, copyright, registered design or other rights of any other person. 14. DIMENSIONS AND SPECIFICATIONS 14.1 Dimensions and specifications contained or referred to in the Contractor in any catalogues or other publications maintained or issued by the Company are estimates only. Unless otherwise expressly agreed in writing, it is not a condition of the Contract that the Goods will correspond precisely with such dimensions and specifications, and customary tolerances, or in the absence of customary tolerances, reasonable tolerances shall be allowed. 15.COLOUR 15.1 Should the Company be obliged to match any shade or colour, a light and dark tolerance shall be allowed to such extent as shall be agreed upon the Company and the Buyer, and in the absence of an agreement, a reasonable tolerance shall be allowed. 16.CONTRACT 16.1 The items mentioned in the quotation (where the Contract arises from a quotation by the Company) or the items contained in the Company’s confirmation of order (where the Contract arises from an order by the Buyer) together with these terms and conditions shall be the conditions of the Contract. All other conditions, warranties, descriptions, representations, conditions as to fitness or suitability for any purpose, tolerance to any conditions, merchant ability or otherwise (whether of a like nature or not) and whether express or implied by law, trade custom or otherwise are expressly excluded. In the case of any conflict between an order submitted by the Buyer and the Company’s confirmation of order and these terms and conditions, the Company’s confirmation of order and these terms and conditions shall prevail. No agent or representative of the Company is authorized to make any representations, warranties conditions or agreement not expressly confirmed by the Company in writing and the Company is not in anyway bound by any such unauthorized statements nor can any such statements be taken to form a contractor part of a contract with the Company collateral to the Contract. 17. WAIVER 17.1 All the original rights, powers, exemptions and remedies of the Company shall remain in full force notwithstanding any neglect, forbearance or delay in the enforcement thereof. The Company shall not be deemed to have waived any condition unless such waiver shall be in writing under signature of the Company or an authorized officer thereof and any such waiver, unless the contrary shall be expressly stated, shall apply to and operate only in a particular transaction, dealing or matter. 18. NO ASSIGNMENT 18.1 The Buyer may not assign all or any of his rights or obligations under the Contract without the prior written consent of the Company. 19 LAW AND JURISDICTION 19.1 The Contract shall in all respects be deemed to be a contract made in New Zealand and the construction, validity and performance of the Contract shall be governed by New Zealand law. The exclusive jurisdiction of the New Zealand courts to entertain all claims and actions arising out of the Contract is accepted and acknowledged by the Buyer provided however that the Company shall been titled to commence any action arising out of or in respect of the Contract in any other court. 20. INTERPRETATION 20.1 These conditions of sale are entered into on behalf of and are intended to bind and ensure to the benefit of the Company and the Company’s successors and assigns. 20.2 In these conditions: “Contract” means the contract between the Company and the Buyer for the purchase of the Goods“ Date of Contract” means: (a) where the Contract arises from an order placed by the Buyer, the date of acceptance of the order by the Company or (b) where the Contract arises from a quotation given by the Company, the date upon which written notification of acceptance of the quotation is received by the Company or where no written notification of acceptance of the quotationis received by the Company, the date of such other form of acceptance as the Company in its discretion determines to treat as a valid acceptance. “Specification” means the Buyers specifications, relating to the goods, attached to this agreement. A reference to a “person” includes a corporation, association, firm, company, partnership or individual. 20.3 Headings are used as a matter of convenience only and shall not affect the interpretation of these conditions. |