GENERAL CONDITIONS OF SALE
All prices are subject to alteration, without notice, and orders are accepted only on the condition that all deliveries will be invoiced at the prices and on the terms ruling at the date of the despatch of the goods. The following Conditions apply to all Goods supplied by the Seller. By making an Order the Buyer acknowledges that it is aware of the contents, and agrees to be bound by, these Conditions.
Unless expressly accepted in writing any qualification of these Conditions in an Order or anything contrary to or inconsistent with any of these Conditions must be deemed to be and will be treated as inapplicable and of no effect. All Orders and any variation of, addition to or cancellation of any Order must be accepted in writing by the Seller to be binding on the Seller.
In these standard conditions of sale:
“Application” means the Application for Credit attached to these general conditions of sale.
“Buyer” means the buyer named in the Application and where the Buyer comprises two or more persons, means those persons jointly and severally.
“Conditions” means these general conditions of sale, as varied by the Seller from time to time.
“Goods” means goods provided and/or manufactured by the Seller.
“Order” means an agreement between the Seller and the Buyer for the Seller to supply Goods to the Buyer.
“PPSA” means the Personal Property Securities Act 1999 and associated regulations, as amended from time to time.
“PPSR” means the Personal Property Securities Register under the PPSA.
“Seller” means Price Holyoake (NZ) Limited.
2. TERMS OF PAYMENT
- (a) All prices are subject to alteration, without notice, and Orders are accepted only on the condition that all deliveries will be invoiced at the prices and on the terms ruling at the date of the despatch of the goods.
- (b) Payment is to be on net monthly account unless otherwise stated on the Order acknowledgement and is to be effected by the 20th day of the month following date of Invoice, in New Zealand currency.
- (c) The Seller reserves the right at any time to demand full or partial payment before proceeding or proceeding further with an Order.
- (d) All prices are exclusive of GST and/or Sales Tax which, if payable, is the Buyer’s responsibility.
- (a) Unless otherwise stated in writing by the Seller all items are ex factory Wellington, Christchurch or Auckland
- (b) The method of transport if not requested by the Buyer shall be as chosen by the Seller. The entire cost of such transport shall be paid by the Buyer.
- (c) The goods shall be deemed to have been delivered to the Buyer and all risk in respect of the goods shall pass to the Buyer upon the goods having left the factory.
- (d) Despatch date as forecast is quoted in good faith by the Seller but is given and intended only as an estimate and the Seller shall not be liable to make good any damage or loss whether arising directly or indirectly out of any delay or default in delivery. The Seller reserves the right to despatch Orders in whole or by instalments and to despatch prior to the advised delivery date.
- (e) Where the Order acknowledgement provides for delivery by instalments each instalment delivered shall be deemed to be sold under a separate contract. Any failure by the Seller to deliver an instalment within the time stated or at all shall not entitle the Buyer to repudiate the contract with regard to any instalments remaining to be delivered.
4. FORCE MAJEURE
The Seller reserves the right to cancel, suspend, or delay despatch in the event of and during acts of God, wars, strikes, labour disputes, civil commotion, epidemics, embargos, floods, fires, shortages of fuel, raw material, transportation or labour, the Imposition of government controls or requirements, accidents to or breakdowns in or to the Seller’s works, plant or machinery, or any other circumstances of any kind whatsoever beyond the Seller’s control affecting or interfering with production or delivery of the goods and the Seller shall not be liable to make good any damage or loss whether arising directly or indirectly out of any such delay suspension or cancellation. In the event of suspension of or delay in despatch as aforesaid the forecast despatch date shall be extended by a period equal to the period of suspension or delay and every date of despatch shall stand postponed accordingly.
5. ALTERATIONS AND ADDITIONS TO ORDERS
Alterations and additions to existing Orders will only be accepted at the sole discretion of the Seller and then only subject to the following conditions:
- (a) ALTERATIONS — An existing Order may not be amended if the goods are already in production.
- (b) ADDITIONS — Any addition to an existing Order will only be accepted by the Seller if the Seller considers that despatch can be effected within the original acknowledged despatch date.
- (c) PRICE — Where the quantity of an item is increased it will be priced at the rate applicable to the original Order at the discretion of the Seller. Any reduction of the original Order will result in the balance of the Order being re-priced in accordance with the scale applicable to the revised quantity.
- (a) The Seller warrants that the goods delivered shall, subject to the other terms of these Conditions of Sale, conform to the description shown on the Acknowledgement of Order and in the Sellers Price List in effect at the date of Acknowledgement of Order and that the goods shall be free from defects in material and workmanship except for such defects as are normally regarded as being commercially acceptable.
- (b) The Seller’s liability under the preceding paragraph shall be strictly limited to the cost of repairing or replacing the goods or (at the option of the Seller) allowing a full credit in respect of the goods and shall only apply to goods returned to the Seller within three months of date of despatch which are found by the Seller to be defective and the Seller shall not be liable for any claim in respect of work done on the goods, transport costs, loss of profit on or any claim suffered through re-sale or any other claim loss, damage, or expense incurred or suffered by the Buyer relating whether directly or indirectly to any such defects.
- (c) No condition or warranty, expressed or implied, is given that the goods are suitable for use under any specific conditions or for any specific purpose although such conditions or purpose may be known to the Seller. Nor is any condition or warranty given or implied as to the life or wear of any goods.
- (d) No statement or recommendation made or advice or assistance given by the Seller or its servants, agents or representatives in connection with the goods shall constitute a warranty by the Seller or a term or condition of sale or a waiver of any of the provisions hereof and the Seller accepts no responsibility therefore and shall not be liable for any loss which may be suffered by a Buyer who relies on the accuracy of such statements, recommendations, advice or assistance and the warranties given above replace every other condition statement or warranty whether expressed or implied and whether statutory or otherwise not expressly set out in these Conditions of sale and the liability of the Seller hereunder shall be limited to the specific undertakings set out above. The Seller shall not be liable, whether in contract or tort, for any other direct or consequential loss, damage or injury whatsoever arising out of the manufacture, sale, existence or use of the goods.
7. SIZES, QUANTITIES, CLASSIFICATIONS AND TOLERANCES
- (a) The Seller’s invoice shall be conclusive evidence of the sizes, quantities and classifications of the goods shipped or transported.
- (b) All products are sold subject to:-
- (i) The Seller’s normal variations in measurements, standard sizes, mechanical properties, surface conditions and quality.
- (ii) The Seller’s current packaging practice.
- (a) No Order may be cancelled without the consent in writing of the Seller. If the Seller in its discretion accepts cancellation of an Order it will be on the following terms:
- (i) Where the goods are finished or in the course of manufacture the Buyer shall pay such amount up to the full sale value of the goods in terms of the Offer and Acceptance, less the scrap value of the metal, as the Seller shall stipulate.
- (ii) Where the goods are not yet in the course of manufacture the Buyer shall pay such amount up to 5% of the sale value of the goods in terms of the Offer and Acceptance as the Seller shall stipulate.
- (b) If the Buyer shall default in or commit any breach of any of its obligations to the Seller or if any distress or execution shall be levied on any of the Buyer’s property or if the Buyer shall make or offer to make any arrangement or composition with creditors or commit any act of bankruptcy or become bankrupt or (if the Buyer is a limited company) if any resolution or petition to wind up its business is presented or passed or a receiver is appointed of such company’s undertaking, property or assets or any part thereof then the Seller shall be entitled to suspend execution of any Order received from the Buyer (whether or not the default or defaults are in respect of such Order) until the default or defaults are made good and shall be entitled (notwithstanding that the right to suspend execution may have been exercised) forthwith to terminate any Order received from the Buyer and then subsisting and on written notice of such termination being posted by the Seller to the Buyer’s last known address any and every subsisting Order shall be deemed to have been terminated.
The rights of the Seller under this paragraph shall be exercisable without prejudice to all other rights and remedies of the Seller in consequence of the default or defaults.
- (C) The Seller shall be entitled, without prejudice to its other rights and remedies in respect of any default to charge interest on any overdue payment at the rate of Two (2) per cent per month calculated from the due date until the date payment in full is actually received and all costs and expenses incurred by the Seller at any time in seeking recovery of any overdue payment shall be paid by the Buyer on demand.
- (a) No claim for shortage of or damage to goods will be entertained by the Seller unless written notice thereof is received within fourteen days after delivery. The goods in respect of which any such claim is made shall be preserved intact as delivered for a period of fourteen days after such notice is given within which time the Seller shall have the right to attend and inspect the goods and where applicable, check the complete delivery.
- (b) Return of goods for any cause whatsoever cannot be accepted after three months from delivery.
10. ERRORS AND OMISSIONS
- (a) Acceptance by the Seller of any notice or claim under clauses 5 or 8 hereof after expiry of the time limits set out therein shall be without prejudice to its right to reject the claim on the ground of non-compliance with such time limits.
- (b) Failure by the Seller to enforce any of these Conditions of Sale or to take action in respect of any breach thereof shall not be a waiver of any of these Conditions of Sale notwithstanding that such breach is continuing and habitual or repeated from time to time and no estoppel may be pleaded against the Seller either at law or in equity in any circumstances whatsoever.
- (a) If by law any licence shall be required to enable the Buyer to acquire, or the Seller to sell to the Buyer the goods, such licence shall be obtained by the Buyer. In the event of the Seller receiving directions from a Government Department as to the disposal of the Seller’s output of goods of the type, kind or category of goods included in the Order and if in the Seller’s opinion such directions shall prevent or hinder the fulfilment by the Seller of the Order the Seller may by notice to the Buyer cancel the Order in whole or in part.
12. INTELLECTUAL PROPERTY
- (a) The Buyer acknowledges that all intellectual property rights in the Goods are and shall remain the property of the Seller.
- (b) The Buyer warrants that any design or drawing provided by it does not infringe any intellectual property rights of any other person.
- (c) The Buyer shall indemnify the Seller against all damages, penalties, costs and expenses to which the Seller may become liable through any work required to be done in accordance with the Buyer’s specifications involving the infringement of a patent or registered design.
13. IN PLANT INSPECTION
Testing and inspection, other than that normally undertaken by the Seller, when specified by the Buyer or its agents shall take place at the Seller’s works and be final there. The Buyer shall pay a standard charge therefor.
Any dispute under any Order accepted by the Seller shall be referred to an arbitrator or arbitrators to be appointed by the President of the Law Society of the District of Auckland for the time being and his or their decision shall be binding on both parties and this shall be a submission to arbitration within the Arbitration Act, 1996 or any statutory modification thereof for the time being in force.
These Conditions and the Application to which these Conditions relate shall be construed in accordance with and be governed by the laws of New Zealand and the parties submit to the non-exclusive jurisdiction of the Courts of New Zealand.
- (a) Property in the Goods shall remain with the Seller until the Seller receives payment in full for the Goods and for all other Goods supplied by the Seller to the Buyer.
- (b) The Buyer has authority to dispose of the Goods or to affix or annex the Goods to any other property until:
- (i) The Buyer becomes insolvent, bankrupt, has a receiver of its assets appointed or enters into any assignment or arrangement with creditors, or
- (ii) the Seller does not receive payment in full for the Goods within 5 working days of the due date thereof.
- (c) Immediately upon the occurrence of an event within either 16(b)(i) or 16(b)(ii) above and without the necessity for any notice, the Buyer’s authority to dispose of the Goods or to affix or annex the Goods to any other property shall immediately terminate and the Goods shall be returned in their original condition to the Seller. The Buyer hereby irrevocably authorises the Seller to enter onto any premises where the Goods (whether separate or affixed or annexed to any other property) may be and to remove the same and the Buyer hereby indemnifies and agrees to hold harmless the Seller against any damage howsoever caused in relation to such entry and removal including consequential loss or damage to any third party or to the Buyer.
- (d) The Buyer shall hold the proceeds of any disposition of the Goods in a separate account on behalf of and in trust for the Seller.
- (e) The Buyer shall hold the proceeds of any disposition of any property to which the Goods have been annexed or affixed in a separate account on behalf of and in trust for the Seller.
- (f) The Buyer agrees to inform any third party to whom the Goods are in any way disposed of (including through affixture or annexation) of the terms of this clause 15, unless the Seller has already received payment in full of amounts due to the Seller hereunder.
17. PERSONAL PROPERTY SECURITIES ACT 1999
- Upon consenting to these Conditions or by accepting supply from the Seller the Buyer acknowledges and agrees that:
- (a) These Conditions constitute an enforceable security agreement in terms of section 36 of the PPSA;
- (b) A security interest is granted to the Seller by the Buyer in all of the Seller’s present and after-acquired personal property supplied by the Seller to the Buyer during the continuance of the relationship contemplated by these Conditions.
- The Buyer acknowledges, agrees and undertakes (as the case may be) that:
- (a) The Buyer shall sign any further documents and/or provide any further information that is required to register a financing statement or financing change statement on the PPSR;
- (b) The Buyer shall upon demand meet all costs of the Seller:
- (i) in relation to registering a financing statement or financing change statement, or releasing any financing statement on the PPSR;
- (ii) enforcing the Seller’s security interest including the Seller’s legal costs on a solicitor/ client basis;
- (c) The Buyer will give the Seller not less than 14 days prior written notice of any proposed change in the Buyer’s name, and/or any other change in the Buyer’s details or otherwise (including but not limited to a change in the Buyer’s place of incorporation, address, location, nature of business, OWNERSHIP, facsimile or phone number, or business practice);
- (d) The Buyer shall not allow any goods to become an accession to any property that is not subject to the security interest granted pursuant to these Conditions;
- (e) The Buyer will not do, or omit to do, or allow to be done or omitted to be done, anything which might adversely affect any security interest in the goods granted in favour of the Seller;
- (f) The Buyer will not move any of the goods outside New Zealand;
- (g) The Buyer will not register a change demand without the prior written consent of the Seller which may be given or withheld at the Seller’s absolute discretion.
- The Buyer agrees for the purposes of section 107 of the PPSA that:
- (a) Nothing in the sections 114(1)(a), 116, 117(1)(c), 120(2), 121, 122, 132(2), 133, 134, and 148 (Buyers right to receive a verification statement) shall apply to the Buyer;
- (b) The Buyer waives the Buyer’s right to:
- (i) not have any goods damaged when the Seller removes an accession under section 125 of the PPSA;
- (ii) receive notice of the removal of an accession under section 129 of the PPSA;
- (iii) apply to the Court for an order concerning the removal of an accession under section 131 of the PPSA.
The Seller may at any time assign, transfer or sub-contract any of its rights and obligations under these Conditions (including the right to receive payment) to any other person.
19. VARIATION OF CONDITIONS
- The Seller may, in its sole discretion, vary these Conditions from time to time, and the Buyer shall be bound by these Conditions (as so varied) in respect of the supply of any particular Goods by the Seller to the Buyer.
- The latest version of these Conditions can be found at www.holyoake.com.