Terms and Conditions of Sale
1. Terms of payment – Payment for the goods (other than cash sales) shall be made on the 20th day of the month next following that in which the goods are invoiced (unless otherwise agreed in writing). Failing payment by due date, and without prejudice to any other remedies available to the seller, penalty interest may be charged from that date on a daily basis on any unpaid amounts at a rate of 5% per annum greater than the floating interest rate charged by the seller’s bank to its best commercial customers on overdrawn accounts.
2. Risk – The goods shall be at the risk of the buyer from the time of delivery as to any loss, damage and deterioration.
3. Delivery – (a) Where the seller has agreed to deliver the goods in its own vehicle the date of delivery shall be the date the goods arrive at their destination. Otherwise deliveries shall be made ex seller’s factory. In the latter case the date of delivery shall be the date upon which the seller dispatches the goods or otherwise deals with the goods in accordance with any instructions given by the buyer. If the buyer refuses to accept delivery when the goods are available, delivery shall nevertheless be deemed to have been made; and in those circumstances the seller reserves the right to charge the buyer storage charges until delivery is taken.
(b) The seller shall make every effort to effect delivery in accordance with pre-arranged dates but, subject to clause 4(b)(ii) hereof, no guarantee is given as to delivery dates, nor will the seller be liable for any loss or damage arising from delays in delivery howsoever caused and whether in respect of the whole or part of the goods ordered and a delay in delivery shall not entitle the buyer to cancel the contract, provided however that this clause shall not apply where the delivery is a service subject to the Consumer Guarantees Act 1993. (The "Act").
(c) Delivery of the goods may be made by instalments. If this occurs the buyer shall pay for each instalment as if it were a separate order.
3A. Returns – Requests to return goods for credit must be made within 30 days of date of delivery. All returns must be
approved by the seller and will be subject to a restocking fee. All returns must have first obtained a "Returns Authorisation Number". If the goods were obtained especially for the buyer or have been cut to length or otherwise modified for the buyer, then it is unlikely the seller will be able to agree to them being returned.
3B. Cancellation of orders - will need to be approved by the seller in writing.
(a) Where goods or services are supplied to a consumer the seller accepts responsibility for any breach of guarantee by it under the Act.
(b) Otherwise (i.e. where the Act does not apply) the following provisions shall apply:
(i) the seller will not be liable whatsoever for any defects in the goods which are not notified to the seller within 21 days of the date of delivery.
(ii) the seller will not be liable for goods lost or damaged in transit unless the purchaser notifies the seller of such loss or damage within 21 days of the date of delivery or expected date of delivery.
(iii) in the event the seller is liable in any way whatsoever to the buyer in connection with this Agreement the liability of the seller, whether in contract, tort (including negligence) or otherwise, is limited to either the replacement of the goods with the same or equivalent goods or to giving a credit note to the buyer for the value of the goods, out of the supply of which the liability arose, at the sole election and discretion of the seller.
(iv) no warranty is given by the seller as to the fitness or suitability of the goods for any particular purpose. All conditions and warranties whether express or implied by law, trade, custom or otherwise are hereby expressly excluded except for any warranty issued to retail buyers at point of sale with the authority of the seller except to the extent such exclusion is not permitted by law.
(v) the buyer acknowledges the seller shall not be liable for any losses of profits (whether a direct or indirect loss) or any consequential, indirect or special losses, damage or injury of any kind whatsoever suffered by the buyer arising directly or indirectly from any breach of the sellers obligations under or in connection with the contract or from any cancellation of the contract or from any negligence on the part of the seller, its servants, agents, contractors or carriers nor shall the seller be liable for any loss, damage or injury caused to the purchasers servants, agents, contractors or other persons whomsoever arising as foresaid and the sellers total liability is limited in accordance with clause 4(b)(i)-(iv) above.
5 Ownership of Goods – Ownership of the goods is retained by the seller until payment is made in full for the goods and for all other goods supplied by the seller to the buyer. If the buyer causes the goods to become constituents of other goods prior to payment for the goods the ownership of those other goods shall be vested in the seller until all the moneys due to the seller are paid. The proceeds of sale of the goods and/or those other goods or so much thereof, as equate to the moneys due to the seller shall belong to the seller and the buyer shall account for them to the seller. As security for all obligations that the buyer may owe to the seller from time to time the buyer hereby grants the seller a security interest under the Personal Property Securities Act 1993 ("PPSA") in all products supplied by the seller to the buyer from time to time and in the proceeds of all such products as well as in any negotiable instrument representing any such proceeds. The buyer waives its rights under section 148 of the PPSA.
6 Default in Payment – If the buyer refuses to accept delivery of any goods ordered by the buyer, or defaults in the due payment in full of the price of any goods supplied, all moneys owing by the buyer to the seller on any account shall become immediately due and payable. Without prejudice to any other right it may have pursuant to this contract or at law or in equity the seller may in any such case cancel this contract. If the buyer defaults in making any payment to the seller, or if any creditor of the buyer takes any steps to recover any moneys due to the buyer, or has grounds for taking any such steps, the seller or its agent may enter upon any premises where the goods are held to remove the goods and the seller may exercise this right without prejudice to any other rights it may have at law or in equity. The buyer shall remain liable for any costs, legal or otherwise, incurred as a direct result of recovering payment or property.
7 Waiver – No neglect, forbearance, or delay, by the seller in enforcing its rights, powers, or remedies, pursuant to this contract shall be deemed to be a waiver thereof.
8 Goods and Services Tax – Any goods and services tax, or other taxes of a value added nature, for which the seller may be liable on the supply of goods pursuant to this contract, shall be added to the price of the goods and shall be paid by the buyer to the seller at the same time and in the same manner as payment for such goods.
9 Freight – If the seller arranges for the carriage of the goods on behalf of the buyer, the buyer shall be responsible for payment of all freight charges direct to the carrier (or by reimbursement to the seller if incurred by it) and for arranging any transit insurance. The buyer shall be liable to pay the full amount charged by the carrier if that exceeds any initial estimate.
10 Intervening Causes – If any causes beyond the control of the seller (e.g. war, fire, flood, strike, accident) interfere with the production, sale, transportation, or delivery of the goods, or with the supply to the seller of any products or materials necessary to manufacture the goods, the seller shall be entitled to suspend, reduce, or cancel, orders or deliveries without any liability on its part.
11 Governing Law – These sale conditions shall be construed according to the law of New Zealand.