The invoices/quotations and any contract of sale arising from them is made upon and subject to the following General Conditions of Sale except where these conditions have been excluded or modified by the written quotation/invoice:
The price shown/quoted is the net price and shall be paid in full free of any deduction withholding or discount (whether by set-off, counterclaim or other deduction). GST is payable in addition to the price shown/quoted.
2. TIME FOR ACCEPTANCE
In the case of an invoice, these terms are deemed to have been accepted at the time of invoice. In the case of a quotation, the quotation must be accepted within the time specified. If no time is specified the quotation must be accepted within 30 days. The quotation may be withdrawn at any time by notice of writing notwithstanding that the time specified for acceptance may not have expired.
3. PRICE LIST
Where the quotation refers to goods or items on the Sellers current price list or where the price is quoted as being subject to ruling prices or to escalations or otherwise subject to variation, then the price quoted is based upon the cost of the goods to the Seller at the date of quotation and any subsequent increase on the cost to the Seller of supplying the goods or items whether caused by increase of prices, wages, currency, exchange rates, transport costs, custom duties or other duties or taxes or any other factor beyond the control of the Seller shall be paid by the Buyer in addition to the price on the Sellers current price list or quoted and the increased price shall become the price for all purposes relating to the sale. The Seller shall at the Buyers request obtain a written certificate from the Sellers auditors as to the amount of such increases and such certificate shall be accepted as correct by both parties.
Where prices are quoted in a foreign currency payment shall be made either in that foreign currency or in New Zealand currency for such amount as will on the date of payment purchase through the Sellers trading bank the quoted amount of foreign currency free of any deductions or charges or fees.
5. TERMS OF PAYMENT
The terms of payment stipulated in the quotation shall be strictly adhered to and time shall be of the essence. Where no terms of payment are stipulated or in the case of an invoice payment shall be made in full within 10 days from the date of supply.
6. POSSESSION AND TITLE
Delivery of possession of the goods to the Buyer is made on the express condition that the property in the same shall not pass to the Buyer until all monies owed by the Buyer under the contract have been received by the Seller in cash and the Buyer shall have completely performed all his obligations under the contract. Until title passes from the Seller to the Buyer in accordance with this paragraph the following terms shall apply:
(a) The risk in goods supplied by the Seller to the Buyer shall pass to the Buyer upon delivery. Property and title in the goods, notwithstanding that delivery, may have taken place, shall only pass to the Buyer when all money owing by the Buyer to the Seller have been paid in full.
(b) To secure the Buyer's obligation to pay the amounts due under this Agreement and any other obligations to the Seller under this Agreement ("the indebtedness") the Buyer grants the Seller a Security Interest in the goods and their proceeds and its rights and interests in the goods and their proceeds.
(c) The Buyer will do everything at the Buyer's expense, that the Seller requires to ensure that the Seller has a perfected Purchase Money Security Interest in the goods, and generally to obtain, maintain, register and enforce their Seller's Security Interests in accordance with the Personal Property Securities Act 1999 ("PPSA")
(d) Until the Buyer has paid all money owing to the Seller, the Seller with have right at the Seller's option to recover the goods and upon exercise of that right, the Buyer shall deliver up the goods to the Seller and grant the Seller by the Seller's employees or duty authorised agents the irrevocable right to enter any premises occupied by the Buyer or over which the Buyer has control for the purpose of collection and removal of the goods.
(e) Until the Buyer has paid all money owing to the Seller, the Buyer shall at all times hold the goods upon trust for the Seller and shall store the goods and clearly identify such goods as having been supplied by the Seller.
(f) Until the Buyer has paid all money owing to the Seller, the Buyer shall not sell or grant a Security Interest in the goods without the Seller's written consent. Any amounts received by the Buyer for those goods shall be held by the Buyer upon trust for the Seller until full payment is made to the Seller and those proceeds (in whatever form) must be readily identifiable and traceable.
(g) Where goods in respect of which property has not passed to the Buyer are sold by the Buyer contrary to this Agreement, the book debt created upon sale of such goods when received by the Buyer shall be held on trust by the Buyer for the Seller and any proceeds of the sale so received by the Buyer shall be placed in a separate bank account and shall first be applied towards the satisfaction of all the Buyer's indebtedness to the Seller and thereafter shall be retained by the Buyer,
(h) The Seller may allocate amounts received from the Buyer in any manner the Seller determines, including and matter required tp preserve any purchase money Security Interest the Seller has in any goods.
(i) In exercising the Seller's rights pursuant to these clauses, the Seller shall be entitled to deduct from any sale of goods recovered from the Buyer all the liabilities and expenses (including legal expenses) incurred by the Seller in enforcing or attempting to enforce pursuant to these clauses.
(j) The Buyer must not change the Buyer's name without first notifying the Seller of the new name.
(k) The Buyer is not entitled to return any of the goods without demand from the Seller.
(l) The Buyer waives the right to receive a copy of the verification statement confirming registration of a financing statement or financing change statement relating to the Security Interest under this Agreement.
(m) Sections 114(1)(a), 133 and 134 of the PSSA do not apply to this Agreement or the security under this Agreement. The Buyer waives the Buyers rights under ss 121, 125, 129, 131 and 132 of the PPSA.
Where the goods are to be supplied from outside New Zealand and delivery dates or arrangements stated in the written quotation shall be treated as an estimate only and the Seller shall not be liable to the Buyer for any delay in delivery arising from manufacturing delays, shipping or transport. Upon acceptance of the quotation, the Seller will seek information as to the shipping or other transportation arrangements available and shall advise the Buyer thereof. If the Buyer objects to the arrangements in writing within seven days of such advise the contract may be canceled. Otherwise, the shipping or other transport arrangements as advised shall become part of the contract. Notwithstanding the foregoing, the Seller shall not be liable where the shipping or other transport arrangements made in accordance with such advice in good faith are for any reason beyond the control of the Seller not complied with and the Buyer shall not be entitled to cancel or claim against damages for delayed or late delivery.
8 INSURANCE AND FREIGHT
Unless the written quotation provides otherwise where the goods are supplies from outside New Zealand the quotation is made FOB and where the goods are supplied from inside New Zealand the quotation is made Ex Works. The Seller may upon request from the Buyer as a service pay freight insurance duty landing and delivery charges, any other charges connected with the shipment and delivery of goods beyond the point at which the Sellers obligations terminate whereupon the Buyer shall reimburse the Seller the actual costs so incurred on demand.
9. MANUFACTURERS CHANGES
Where goods are ordered from information supplied by a manufacturer or supplier (other than the Seller) the Seller shall not be liable to the Buyer for any alterations made by the manufacturer or supplier without notice to the Seller.
Where goods supplied or components thereof are defective in workmanship or materials and the defect is drawn to the attention of the Seller in writing by the Buyer within 30 days of receipt the Seller will remedy such defect or replace such defective parts or components and this shall be the sole and total remedy available to the Buyer for defects in goods supplied. This warranty does not apply to used equipment/second-hand goods. No action may be brought by either party more than one year after the cause of action has occurred except an action for non-payment by the Seller. The provisions of this clause shall likewise apply to any replacement goods, parts or components supplied hereunder. In the event that the written quotation excludes or modifies any one or more the foregoing provisions of this clause, the remaining provisions shall nevertheless continue to apply. This warranty will become void and will not apply if the Buyer:-
Fails to comply with the manufacturer's specifications when operating and maintaining the machinery; or
Allows the machine to be used by unauthorised personnel (staff who have not received training, or who use the machine for private purposes); or
Modifies the machinery in any way without our approval; or
Fails to supply a Clean Dry Supply of Air to the machine (when required) and maintain Air Control equipment in accordance with the manufacturer's recommendations; or
Carries out repairs and maintenance using labour or parts supplied by unauthorised third parties (i.e. third party suppliers or service people where prior authorisation has not been obtained from the Seller).
11. OUTSIDE INTERFERENCE
The Seller shall not be liable to the Buyer whatsoever for any defect loss or damage or delay caused by strike, lockout, damage to or breakdown of plant, government interference, war or act of war, storm, tempest, fire, flood, riot, explosion, earthquake, force majeure or any other cause beyond the control of the Seller.
12 LIMITATION OF LIABILITY
Unless the written quotation provides otherwise the Seller does not warrant that the goods are fit for any particular purpose or that they are of merchantable quality or that they correspond with the description. Any term or stipulation of the contract shall be treated as a warranty and not as a condition and subject to paragraph 10, all other conditions or warranties, expressed or implied, statutory or otherwise are specifically excluded and these items are the entire agreement between the Seller and Buyer. The Seller shall not be liable for consequential loss or damage of any kind including loss of profit, loss of production, damage to other property, liability to third parties, the cost of installation or re-installation of goods supplied and the Seller's liability shall be strictly limited to the value of the defective goods or components. The Buyer acknowledges that the goods and services provided pursuant to this sale are for the purpose of business.
13. NEW GOVERNMENT CHARGES
The Buyer shall be responsible for payment of any sales tax, duty or other tax or import of any kind levied or imposed by any Government or other authority having jurisdiction in respect of the goods which was not at the date of the quotation chargeable or applicable.
The quotation/invoice is subject to and conditional upon any necessary import or export or other licenses being obtained.
15. NO CONDITIONAL ACCEPTANCE
The Seller shall not be bound by any conditions attaching to the Buyers acceptance of a quotation unless such conditions are accepted by the Seller in writing. If the Buyer accepts a quotation by delivery of an order from or document which stipulates or purports to impose conditions, such conditions shall not be applicable to the contract resulting from this quotation without such written acceptance.
The Seller shall be entitled (without prejudice to claim for damages or any other remedy available) to cancel and refuse to complete the Contract if the Buyer fails to pay any instalment of the purchase price on the due date (time being of the essence) or otherwise makes default under the contract or if the Buyer becomes insolvent or in the case of a company has a receiver appointed or goes into administration or liquidation. The Seller shall have no liability whatsoever to the Buyer arising out of the Contract if it is canceled pursuant to this provision.
17. LAW OF CONTRACT
The contract resulting from the quotation shall be interpreted according to the law of New Zealand which shall be the proper law of the contract. If any of the provisions of the contract are unlawful or invalid under any applicable statute or rule of law they are to that extent to be deemed omitted.
In this quotation, unless the context otherwise requires:
"Seller" means Indepth Developments Limited, trading as PPT
"Buyer" means the person or company to whom a quotation is made by the Seller and shall include the plural and in the case of an individual his executors, administrators and assignees and in the case of a company its successors and assignees.
"Contract" unless the contract otherwise requires means the contract resulting from the acceptance of a quotation.
"Written Quotation" means that part of a quotation not included in these general conditions.
"FOB, Ex Works & CIF have respective meanings ascribed to them by INCOTERMS 2000 published by the International Chamber of Commerce and the duties of Buyer and Seller set out in INCOTERMS 2000 in respect of each of term shall form part of all quotations and shall apply to the contract arising from acceptance.
19. INTERPRETATION SPECIAL CONDITIONS
Conditions in a written quotation/invoice shall take precedence over these general conditions so far as necessary to resolve any conflict or inconsistency.
20. INTEREST FOR LATE PAYMENT
The Buyer shall pay the Seller interest at the interest rate of 16% per annum in respect of all of the Buyers indebtedness which is overdue for payment. Such interest shall accrue on a daily basis from the date when payment is due until the date when payment is actually made. The Buyer shall be liable to pay all expenses and legal costs of the Seller as between solicitor and client for the cost incurred in enforcing such indebtedness.