| 1 |
Definitions |
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Unless the context otherwise
requires, the following definitions
shall apply to these terms and
conditions:-
"Company"
- Cannings Gear & Transmission
Limited
"Buyer"-
the purchaser of the goods from
the Company shown on the front
of this form.
"Default
Rate" means the base lending
rate charged by the Company's
bank plus a margin of 5 per centum
per annum.
"goods"
means any goods supplied to the
Buyer by the Company in the nature
of components or other engineering
products, whether made expressly
to the customers
order or the Company’s standardised
products, including (without limitation)
gears, sprockets, transmission
products, tools, punches, trolleys,
cranes and winches.
"PPSA"
means the Personal Property Securities
Act 1999 and associated amendments
and regulations. |
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| 2 |
Supply |
| 2.1 |
The goods will be supplied to
the Buyer on these terms and conditions
unless the Company agrees in writing
to change them. |
| 2.2 |
The Company will not be bound
by any conditions included in
the Buyer's order unless it expressly
accepts them in writing. |
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| 3 |
Price |
| 3.1 |
The price for the goods shall
be the price agreed between the
Company and the Buyer at the date
of the order or if no such agreement
is
made then the current wholesale
price, cost of manufacture, or
retail price (at the Company’s
election) at the date of delivery.
The price does not include charges
for freight, taxes, insurance
or duties unless otherwise agreed
between the Company and the Buyer. |
| 3.2 |
Any price agreed between the
Company and the Buyer at the date
of the order may be varied if
wages, salaries, costs or materials,
freight rates, taxes, government
charges, insurance rates, duty
and or exchange rates are increased
between the date of the order
and the date of delivery. |
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| 4 |
Payment |
| 4.1 |
The Buyer shall pay for the
goods no later than the 20th of
the month following delivery and
if the Buyer fails to pay on or
before due date the Buyer shall
pay
interest at the Default Rate from
the due date until payment. This
provision shall not apply to cash
sales, payment for which is due
on delivery. |
| 4.2 |
Payment by cheque, bill of exchange
or other negotiable instrument
will not be considered as payment
until actually paid or honoured. |
| 4.3 |
The Buyer shall pay the price
in full and shall have no right
to set off against the price any
claims which the Buyer might have
against the Company. |
| 4.4 |
The price shall become immediately
payable regardless of the terms
of payment and the Company may
take immediate action to recover
the price if the Buyer is
in default under this Agreement
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 other
way. |
| 4.5 |
In the event of sequential contracts
or deliveries of goods, money
paid by the Buyer to the Company
will be applied by the Company
to the earliest-in-time delivery
or contract that is unpaid or
has a portion unpaid. |
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| 5 |
Delivery |
| 5.1 |
Delivery is deemed to be made
to the Buyer when the goods are
first dispatched from the Company’s
premises, unless otherwise agreed
between the parties. All
carriers are deemed to be agents
of the Buyer. |
| 5.2 |
The Company will do all in its
power to see that deliveries are
maintained according to schedule
but any period or dates quoted
for delivery are to be regarded
as approximate only. |
| 5.3 |
Goods may be delivered in installments
and each delivery shall be regarded
as a separate contract. |
| 5.4 |
The Company may stop future
deliveries until the Buyer has
paid for all previous deliveries. |
| 5.5 |
If the Company is unable to
deliver the goods because of any
cause beyond its control it may
suspend delivery or cancel the
Buyer's order without incurring
any liability for loss or damage
suffered by the Buyer. The Buyer
shall not cancel or refuse delivery
of any suspended order. |
| 5.6 |
The Company will not be liable
in any way for any damage caused
to, or loss of, the goods by any
carrier. |
| 5.7 |
The Buyer shall insure the goods
from delivery, unless otherwise
agreed between the parties. |
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| 6 |
Return of Goods |
| 6.1 |
At its option, the Company may
accept the return of goods that
are not defective for credit provided
that: |
| (a) |
The Company has consented in
writing to the return; |
| (b) |
Goods are returned to the Company
at the place of their dispatch
at the Buyer’s cost within
14 days of delivery; |
| (c) |
A copy of the relevant packing
slip or invoice accompanies the
goods; and |
| (d) |
The goods are unused, undamaged,
and in a saleable condition |
| 6.2 |
The Company may at its option
charge a handling fee of up to
25% of the invoiced price plus
goods and services tax on goods
which are not defective and which
are returned for credit. |
| 6.3 |
The Buyer will return any defective
goods to the Company at its own
cost. |
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| 7 |
Ownership |
| 7.1 |
Ownership in the goods shall
not pass to the Buyer until the
Buyer has paid for the goods. |
| 7.2 |
If the Buyer sells the goods
prior to payment for the same
to the Company, 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. |
| 7.3 |
The Buyer irrevocably gives
the Company 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,
if the Company has sufficient
cause to exercise its rights under
section 109 of the PPSA.
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| 7.4 |
The parties contract out of
Part 9 of the PPSA such that the
rights and obligations in sections
114, 125, 126, and 129 do not
apply between them. Further, the
Buyer
waives any right granted to it
by section 129 of the PPSA.
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| 7.5 |
The Buyer will assist the Company
by completing any formalities
or providing any information required
by the Company such that the Company
may establish and
maintain the best security position
that it is entitled to under the
PPSA.
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| 7.6 |
The Buyer, in accordance with
section 148 of the PPSA, waives
its right to receive a verification
statement. |
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8
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Risk |
| 8.1 |
The sole risk in the goods shall
pass to the Buyer upon delivery
(whether possession of the goods
is taken by the Buyer or a carrier.) |
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| 9 |
Intellectual Property
Indemnity |
| 9.1 |
When the Company has followed
specifications provided by the
buyer, the Buyer shall indemnify
the Company against all damages,
penalties, costs and expenses
in respect of which the Company
may become liable through the
utilisation of those specifications
including those arising from infringement
of any patent,
trademark, copyright, registered
design or any other third party
right. |
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| 10 |
No Liability for Misapplication |
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The Company will not be liable
to the Buyer or to any other person
for the damage or harm howsoever
caused either to the goods, by
the goods, or as a result of
the use of the goods if the goods
are: |
| (a) |
Fitted by unqualified tradepersons,
or fitted or used in any manner
not in accordance with either
of the Company’s instructions
or with current industry
standards of skill; |
| (b) |
Altered or adapted to a use
that they are not specifically
intended for; or |
| (c) |
Added to or repaired using components
not recommended or approved by
the Company. |
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| 11 |
Warranties and Conditions |
| 11.1 |
This clause 11 shall apply where
the Buyer is not a consumer (as
defined in the Consumer Guarantees
Act 1993). |
| 11.2 |
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. |
| 11.3 |
The Company's liability arising
from any of these terms and conditions
or a breach of them or for any
misrepresentation shall be limited
to the price of the goods or
the actual loss or damage suffered
whichever shall be the lesser. |
| 11.4 |
Under no circumstances will
the Company be liable for indirect
or consequential loss of any kind
whatsoever. |
| 11.5 |
The Buyer agrees to indemnify
and keep indemnified the Company
from and against all costs, damages
and expenses incurred by or
recovered against the Company
in respect of any claim for infringement
of any letters patent or registered
design where the Company has used
them on the
Buyer's instructions. |
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| 12 |
Guarantees and Conditions |
| 12.1 |
This clause 12 shall apply where
the Buyer is a consumer under
the Consumer Guarantees Act 1993. |
| 12.2 |
The provisions of the Consumer
Guarantees Act 1993 shall apply
and this agreement shall be read
so that it does not limit or exclude
any guarantees
of that Act. |
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| 13 |
Cancellation |
| 13.1 |
The Buyer shall not be entitled
to cancel any order or any part
of an order without the written
consent of the Company. |
| 13.2 |
The Company shall be entitled
to cancel any order if the Buyer
being a company or body corporate
shall go into liquidation or receivership
or being a person
shall become bankrupt. |
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| 14 |
Enforceability |
| 14.1 |
Each provision of these terms
and conditions is severable in
whole or in part and if any provision
is held to be illegal or unenforceable
for any reason, only the
illegal or unenforceable portion
shall be affected and the remainder
shall remain in full force and
effect. |
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| 15 |
Governing Law |
| 15.1 |
This contract shall be construed
in accordance with and be governed
by the laws of New Zealand and
the New Zealand Courts shall have
jurisdiction over any dispute. |
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| 16 |
Privacy Act |
| 16.1 |
The Buyer agrees that the Company
may obtain information about the
Buyer from the Buyer or any other
person (including any credit or
debt collection agencies)
in the course of the Company's
business, including credit assessment,
debt collecting and direct marketing
activities, and the Buyer consents
to any person
providing the Company with such
information. |
| 16.2 |
The Buyer agrees that the Company
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 Company about
the Buyer may be used by the Company
in the course of its business. |
| 16.3 |
The Buyer shall notify the Company
of any change in circumstances
which may affect the accuracy
of the information provided by
the Buyer to the Company. |
| 16.4 |
The Buyer has rights under the
Privacy Act 1993 to access and
request the correction of any
personal information which the
Company holds about the Buyer. |
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