TERMS CONDITIONS OF TRADE OF PENTLAND NEW ZEALAND LIMITED
INTERPRETATION
1. In these terms and conditions the expression "the company" means Pentland New Zealand Limited (NZBN: 9429031989084) and its successors and assigns and the expression "the customer" means the person, firm or corporation described in the attached application to open a credit account and their successors and permitted assigns.
2. If there is any conflict or inconsistency between these terms and conditions and the terms of any order submitted by the customer or invoice submitted by the company or any other arrangement with the company, these terms and conditions shall prevail, unless otherwise agreed in writing by the company.
AGREEMENT
3. These terms and conditions shall apply to and govern the supply of all goods by the company to the customer, unless otherwise agreed in writing by the company.
4. These terms and conditions may only be varied in writing. The company reserves the right at any time and from time to time to amend, vary or add to these terms and conditions and to amend, vary, suspend or cancel the availability of terms of any entitlement to credit provided to the customer.
5. The purchase of any goods from the company after the receipt of this document in its original form or as subsequently varied shall constitute acceptance by the customer of these terms and conditions in their original form or as varied as the case may be.
ACCEPTANCE OF ORDERS
6. All orders are subject to and are not binding until their acceptance by a duly authorised officer of the company. All indent orders must be placed prior to the end of the indent order period. Any other orders may be placed at any time. After acceptance by the company no orders may be cancelled.
PRICE
7. Subject to clause 8, the price of the goods is the standard price in force at the date of delivery plus any Goods and Service Tax (GST) thereon (except to the extent GST is expressly included).
8. Subject to clause 9, in the case of indent orders the price of the goods shall be that standard price less a percentage discount at the rate from time to time specified by the company.
9. Where the customer amends or cancels indent orders exceeding 20% of the total value of all indent orders placed by the customer for any indent order period, the company reserves the right to charge the standard price pursuant to clause 7.
10. The company reserves the right to increase the price where, between the date of the contract and the date of delivery, there is an increase in the cost of any items (including any change in currency exchange rates, insurance or import charges) affecting the cost of supply, production and/or delivery of the goods and which is beyond the control of the company
11. The price includes the cost of delivery in New Zealand of the goods to the customer except where the invoice value of the goods ordered is less than $500.
DELIVERY
12. Where the company agrees to deliver the goods to the customer or to an address specified by the customer, the company will deliver or arrange for delivery as specified.
13. Any time for delivery is an estimate only, unless otherwise agreed in writing by the company.
14. All claims for errors or short deliveries in respect of the goods must be made in writing within 7 days of the date of delivery.
15. The goods may be delivered in installments in any quantities and each delivery shall be regarded as a separate contract independent from the other deliveries and the goods delivered shall be paid for accordingly. The failure to make delivery of any instalment shall not vitiate the contract as to delivery of other instalments.
RISK AND TITLE
16. Risk in the goods shall pass to the customer upon delivery to the customer or to the address specified by the customer. All claims for goods lost or damaged in transit shall be made in writing to the company within 7 days of the date of delivery. The company may refuse to accept or recognise any claim made outside that period or where the customer has signed a clean receipt for the goods or by any other act or omission defeating or prejudicing any corresponding claim that the company has or may have had against the carrier or under any policy of insurance in respect of the carriage of the goods.
17. Notwithstanding delivery of the goods to the customer, the company retains ownership of all goods supplied until the customer has discharged all outstanding indebtedness (whether in respect of the goods supplied or otherwise) to the company.
18. The customer grants to the company a Security Interest in goods that have been or are supplied to the customer by the company. Where goods are supplied on credit or consignment the customer grants to the company a Purchase Money Security Interest in the goods so supplied. The customer waives all rights to receive from the company verification of any financing statement, or any other notice of any event prescribed by the Personal Properties Securities Act 1999
PAYMENT
19. Payment is due on the date of dispatch or the date of invoice, whichever is the sooner. Payment is overdue if not paid by the 20th of the following month.
20. Time is of the essence in respect of the payment obligations of the customer. If payment is overdue that shall constitute a breach or default under these terms and conditions and the customer will upon demand pay to the company interest on any overdue payment at the rate of 5% per annum above the indicator lending rare or the ANZ Bank of New Zealand from the date that payment was due until payment in full is received by the company. The charging of interest shall not constitute the granting of an extension of credit or on option to pay interest instead of the amount of the overdue payment.
21. If payment is overdue the company may at its discretion and in addition to its other remedies cancel or suspend the customer's entitlement to credit and require payment in cash on or before delivery of the goods, at refrain from making further supplies until the customer has discharged all outstanding indebtedness to the company.
22. The company reserves the right to impose a credit limit at any time which may be altered at the company's discretion with effect from the date of notification to the customer. If the company at any time considers the creditworthiness of the customer to be unsatisfactory the company may cancel or suspend the customer's entitlement to credit or require security for payment.
23. The company may at its discretion apply any payments it receives from the customer in and towards the satisfaction of any indebtedness of the customer and it shall not be bound by any conditions or qualifications that the customer may make in relation to payments made under this at any other contract with the company.
REPOSSESSION
24. Upon the revocation or withdrawal of the customer's right to deal with the goods under clause 30 or upon the occurrence of any other event or circumstance specified in clause 31 the company may take possession of any of the goods, whether or not payment may have been received for some of them. For that purpose the customer grants the company or its agents and servants the right to enter (forcibly, if necessary) as the agent of the customer upon the premises where the goods are situated, or upon any premises where the company believes the goods are situated (including premises and land or buildings that the customer may enter upon) and to search for, remove, and take possession of the goods without being liable in any way to the customer.
25. The customer shall indemnify the company upon demand for all costs and expenses in effecting any repossession of any of the goods, and for all claims by any third party for any losses resulting from the company effecting entry or repossession.
26. The company may re-sell any of the goods repossessed under clause 24 and apply the proceeds of sale in reduction of the indebtedness of the customer.
COSTS
27. The customer will upon demand pay all the company's expenses and legal costs (on a solicitor/agent/client basis) in the collection of all overdue monies, or in the repossession by the company of the goods.
DEMAND
28. Demand may be made by the company delivering a letter or invoice to the customer at the address given in the customer's credit account application or that business address last known to the company.
Delivery may be effected by:
[a] personal delivery;
[b] mailing by prepaid post, and shall be deemed to be received two working days after (but exclusive of) the date of mailing; or
[c] facsimile transmission, and shall be deemed to be received at the time specified on the facsimile transmission report of the facsimile from which the transmission was made which evidences full transmission, free of errors, to the facsimile number of the customer unless the customer proves that, contrary to the transmission report, it was not transmitted, or that it was not transmitted in complete and legible state, to that customers facsimile.
CUSTOMER AS BAILEE
29. Upon receipt of the goods the customer shall hold the goods in a fiduciary capacity as bailee of the company and shall be liable for any loss or damage howsoever caused.
DEALING WITH GOODS
30.1 The customer shall permit the company to inspect any records, inventories and accounts of sale of the goods at any time and from time to time.
30.2 The customer shall be empowered to deal with the goods and sell them at their full market value in the ordinary course of the customer's business. If payment is overdue or the customer is otherwise in default of any obligation under these terms and conditions, or is in default as the term is defined in the Personal Property Securities Act 1999 the company may immediately revoke or withdraw the customer's authority granted under this clause. In that event the customer shall immediately cease to deal with the goods and deliver them up to the company and any transactions entered into after that withdrawal or revocation of the customer's authority to deal with or on-sell the goods shall be void.
30.3 Upon any sale of the goods the equitable interest of the company as owner thereof shall be transferred to and shall attach to the proceeds of sale.
30.4 Upon any such sale the customer shall receive and hold those proceeds of sale upon trust for the company and the customer. The company's interest as beneficiary under that trust shall be that portion of the proceeds which does not exceed the amount of all of the outstanding indebtedness of the customer to the company and the balance of the proceeds (if any) shall be the beneficial interest of the customer under that trust.
CANCELLATION
31. The company shall be entitled to suspend or cancel all or any part of any contract or contracts with the customer, in addition to its other remedies, in the following circumstances:
[a] if any amounts payable by the customer to the company are overdue or
[b] if the customer fails to meet any obligation under this or any other contract or obligation to the company; or
[c] if the customer becomes insolvent; or
[d] if a receiver is appointed in respect of the assets of the customer; or
[e] if the customer no longer carries on business or threatens to cease carrying on business; or
[f] if an arrangement with the customer's creditors is made or likely to be made; or
[g] if the ownership or effective control of the customer is transferred, or the nature of the customers business is materially altered.
32. Upon cancellation of this contract all indebtedness of the customer or other monies then or in the future payable to the company shall become immediately due for payment, notwithstanding that the time for payment has not arrived.
ASSIGNMENT
33. The company shall be entitled to assign to any other person or company all or any part of the customer's indebtedness to the company, and the assignee shall be entitled to claim all or part of the indebtedness and shall have the same rights of recovery as the company.
34. The customer shall not be entitled or purport to assign to any other person or company the right to receive any of the proceeds of sale to which the company is beneficially entitled under clause 30 held or owing by a third party in respect of the goods and any such assignment shall be void.
CLAIMS
35.1 Subject to the Consumer Guarantees Act 1994 ("the Act") and the provisions of clause 39, the company provides to the customer only those warranties in respect of the goods as follows:
[a] the goods are of merchantable quality; and/or
[b] as otherwise expressly confirmed in writing by the company
35.2 Goods which do not comply with any warranty referred to in clause 35.1 or otherwise do not comply with the contract shall at the discretion of the company be repaired or replaced or the price credited to the account of the customer or refunded.
35.3 Any right which the customer may have to reject defective goods under clause 35.2 shall only be effective if the customer notifies the company in writing specifying the details of the fault or defect within 21 days following delivery.
35.4 Where the Act applies, the customer shall have all the remedies provided under the Act but no others. If the Act does not apply, the liability of the company in respect or any contract shall be limited to the greater of the amount that the company may receive from its supplier in respect of any claim or the price of the goods supplied and, except to the extent of any warranties referred to in clause 35.1 -
[i] all warranties descriptions and representations, and
[ii] conditions as to fitness or suitability for any purpose, tolerance to any conditions, merchantability or otherwise-
are hereby excluded, unless and to the extent only that they are expressly confirmed in writing by the company, and the company shall not be liable in any way whatsoever to the customer or any third party, whether in tort or contract, for any indirect special or consequential loss or damage (including but not limited to loss of profits or loss of business).
35.5 The company shall not be liable for any delay or failure in complying with any obligation imposed under this or any other contract or for loss or damage (including indirect special or consequential loss or damage) if the failure or delay arises from a cause that is unforeseeable or beyond the control of the company (including but not limited to unavailability of materials or failure of any supplier or subcontractor).
RETURNS
36. In addition to the rights of the customer in respect of defective or non-conforming goods under clause 35 of these terms and conditions, the customer may return the goods where:
[a] the company has agreed in advance to confer this right and a returns authorisation number is obtained from the company; and
[b] the goods are, in the company's opinion, in good saleable condition; and
[c] the goods remain in the company's original undamaged packaging; and
[d] the goods and their packaging are free of any stickers or other labelling by the customer; and
[e] the goods are a standard product and not custom made to the particular requirements of the customer or imported from overseas at the customer's specific request; and
[f] the goods were supplied on the company's normal trade terms and at the standard price charged by the company and not at a reduced price or on other special terms; and
[g] the goods are returned by a carrier authorised by the company; and
[h] the goods, together with a written authorisation form from the company, are returned within 30 days following delivery.
37. The company may charge a handling and restocking fee of up to 15% of the purchase price of the returned goods by way of deduction from the credit passed to the account of the customer or the refund paid to the customer.
IMPORTED GOODS
38. To the extent permitted by law and expressly the provisions of the Act and subject to any express warranties confirmed in writing by the company, the warranties provided to the customer in respect of the goods shall be no greater than the warranties obtained by the company from its overseas supplier and shall commence on the same date and run for the same period as the warranties made available to the company by its overseas supplier.
INDEMNITY
39. Where the customer acquires the goods for the purpose of reselling them to a third party who is acquiring them for business purposes, the customer agrees to contract out of the application of the Act. The customer agrees to indemnify the company on a full indemnity basis from and against any liability, loss, damage or expense that the company may suffer or incur as a result of any claim brought by any such third party where the customer breaches or fails to observe its obligations under this clause.
40. The customer agrees to indemnify the company on a full indemnity basis from and against any liability, loss, damage, or expenses that the company may suffer or incur as a result of any statements, representations or promises made by the customer about or concerning the goods otherwise than in conformity or accordance with the express warranties provided by the company.
EXPORT PROHIBITION
41. The goods are supplied for use or sale in New Zealand only and must not be exported elsewhere, directly or indirectly, without the prior agreement of the company.
INTELLECTUAL PROPERTY
42. All patents, copyright, designs, trade marks, trade names and other intellectual property rights relating to the goods are vested in or licensed to the company and the customer shall not use, remove, interfere with, alter or otherwise infringe any of those rights.
43. The company makes no representation or warranty that the goods will not infringe the intellectual property rights of others. The customer will immediately notify the company of any infringement by others of the intellectual property rights of the company or any claim by others that they are the owner of any intellectual property rights relating to the goods. The company shall have the complete control and conduct of the prosecution or defence or settlement of any proceedings relating to any such infringement or claim.
