CONDITIONS OF SALE
1.1 “Company” means Electrical Importing Co Limited, its successors and assigns or any person acting on behalf of and with the authority of Electrical Importing Co Limited.
1.2 “Customer” means the person/s buying the Goods as specified in any invoice, document or order, and if there is more than one Customer is a reference to each Customer jointly and severally.
1.3 “Goods” means all goods or Services supplied by the Company to the Customer at the Customer’s request from time to time (where the context so permits the terms ‘Goods’ and ‘Services’ shall be interchangeable with each other).
1.4 “Price” means the price payable (plus any Goods and Services Tax (GST) where applicable) for the Goods as agreed between the Company and the Customer in accordance with clause 4 below.
2.1 The Customer is taken to have exclusively accepted and is immediately bound, jointly and severally, by these Terms of Trade if the Customer places an order for or accepts delivery of the Goods.
2.2 These terms and conditions may only be amended in relation to one specific transaction with the consent of both parties in writing.
2.3 These terms and conditions shall prevail to the extent of any inconsistency with any other document or agreement between the Customer and the Company.
2.4 The Customer acknowledges that the supply of Goods on credit shall not take effect until the Customer has completed a credit application with the Company and it has been approved with a credit limit established for the account.
2.5 In the event that the supply of Goods request exceeds the Customer’s credit limit and/or the account exceeds the payment terms, the Company reserves the right to refuse delivery and/or place the Customer on “stop credit”. If the Customer is placed on “stop credit”, the Company will only supply the Goods on a “cash” basis, so that the Customer must pay for the Goods prior to the Goods being delivered.
3. Change in Control
3.1 The Customer shall immediately give the Company written notice of any proposed change of ownership of the Customer and/or any other change in the Customer’s details (including but not limited to, changes in the Customer’s name, address, contact phone or fax number/s, or business practice). The Customer shall be liable for any loss incurred by the Company as a result of the Customer’s failure to comply with this clause.
4.Price and Payment
4.1 At the Company’s sole discretion the Price (which prior to an order being made may be changed without notice at the Company’s sole discretion) shall be either:
(a) as indicated on any invoice provided by the Company to the Customer; or
(b) the Price as at the date of despatch of the Goods; or
(c) the Company’s quoted price (subject to clause 5.1) which will be valid for the period stated in the quotation or otherwise for a period of ninety (90) days.
4.2 At the Company’s sole discretion a non-refundable deposit may be required.
4.3 Time for payment for the Goods being of the essence, the Price will be payable by the Customer on the date/s determined by the Company, which may be:
(a) within 20 days from the end of the month from the date of invoice; or
(b) the date specified on any invoice or other form as being the date for payment.
4.4 Payment may be made by cash, cheque, bank cheque, electronic/on-line banking, or by any other method as agreed to between the Customer and the Company.
4.5 The Customer shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Customer by the Company nor to withhold payment of any invoice because part of that invoice is in dispute.
4.6 Unless otherwise stated the Price does not include goods and services tax (“GST”) on the Company supplies. In addition to the Price, the Customer must pay to the Company any GST. The Customer must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Customer pays the Price. In addition, the Customer must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.
4.7 Notwithstanding clause 4.6 for Goods priced in a foreign currency (where GST is applicable), the Company will follow the guidelines of Inland Revenue Department and convert the GST amount into New Zealand dollars using the rate of exchange as stated in the invoice supplied to the Customer.
5.1 The Company reserves the right to change the Price without notice:
(a) if a variation to the Goods which are to be supplied is requested; or
(b) in the event of unforeseen circumstances occurring which are beyond The Company’s control, including but not limited to variations in:
(i) the cost of Goods and/or labour;
(ii) the cost of freight and/or shipping expenses;
(iii) additional testing of Goods, other than the scheduled compliance testing;
(iv) taxes, duties and/or any other levies;
(v) foreign exchange rates.
5.2 Variations will be charged for on the basis of the Company’s quotation, and will be detailed in writing, and shown as variations on the Company’s invoice. The Customer shall be required to respond to any variation submitted by the Company within ten (10) working days of submission. Failure to do so will entitle the Company to add the cost of the variation to the Price. Payment for all variations must be made in full at the time of their completion.
5.3 In the event of any variation, the Company may extend the date of delivery by a period of time considered necessary and reasonable in the circumstances.
5.4 Any expense incurred by the Company as a consequence of such a variation shall be added to the Price.
6. Delivery of Goods
6.1 Delivery (“Delivery”) of the Goods is taken to occur at the time that:
(a) the Customer or the Customer’s nominated carrier takes possession of the Goods at the Company’s address; or
(b) the Company’s nominated carrier / method delivers the Goods to the Customer’s nominated address even if the Customer is not present at the address.
6.2 At the Company’s sole discretion the cost of Delivery is either included in the Price or is in addition to the Price.
6.3 Any time specified by the Company for Delivery of the Goods is an estimate only and the Company will not be liable for any loss or damage incurred by the Customer as a result of delivery being late. However, both parties agree that they shall make every endeavour to enable the Goods to be delivered at the time and place as was arranged between both parties. In the event that the Company is unable to supply the Goods as agreed solely due to any action or inaction of the Customer, then the Company shall be entitled to charge a reasonable fee for redelivery, storage, demurrage and/or any other charges resulting from the forgoing action or inaction.
7.1 Risk of damage to or loss of the Goods passes to the Customer on Delivery.
7.2 If any of the Goods are damaged or destroyed following Delivery but prior to ownership passing to the Customer, the Company is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by the Company is sufficient evidence of the Company’s rights to receive the insurance proceeds without the need for any person dealing with the Company to make further enquiries.
7.3 If the Customer requests the Company to leave Goods outside the Company’s premises for collection or to deliver the Goods to an unattended location then such Goods shall be left at the Customer’s sole risk.
7.4 The Company accepts no responsibility for any damage or performance related problems with any Goods where they have not been handled, used, stored, installed, fitted and/or maintained in accordance with the Company’s and/or the manufacturers’ recommendations.
7.5 The Company shall be entitled to rely on the accuracy of any plans, specifications, quantities and/or any other information provided by the Customer. The Customer acknowledges and agrees that in the event that any of this information provided by the Customer is inaccurate, the Company accepts no responsibility for any loss, damages, or costs however resulting from these inaccurate plans, specifications or other information.
7.6 The Customer acknowledges that all descriptive specifications, illustrations, drawings, data dimensions, and weights stated in the Company’s fact sheets, price lists, catalogues, brochures or advertising material are indicative only and that the Customer has not relied on such information.
7.7 Any advice, recommendation, information, assistance or service provided by the Company in relation to Goods supplied is given in good faith, is based on the Company’s own knowledge and experience and shall be accepted without liability on the part of the Company. The Customer shall be solely responsible for ensuring that the Goods ordered are suitable for their intended use.
7.8 Where the Customer has supplied items for the Company to complete the Services, the Customer acknowledges that the Customer accepts responsibility for the suitability of purpose, quality and any faults inherent in the items. The Company shall not be responsible for any defects in the items, any loss or damage (or any part thereof), howsoever arising from the use of items supplied by the Customer.
8. Compliance with Laws
8.1 The Customer and the Company shall comply with the provisions of all statutes, customs (prohibited export) regulations of Australia / New Zealand, regulations and bylaws of government, local and other public authorities that may be applicable to the Goods and/or Services.
Subject to clause 9.1, each party agrees to treat as confidential the other party’s Confidential Information, and agree not to divulge it to any third party, without the other party's written consent.
9.1 Both parties agree to:
(a) use the Confidential Information of the other party only to the extent required for the purpose it was provided;
(b) not copy or reproduce any of the Confidential Information of the other party in any way;
(c) only disclose the other party’s Confidential Information to:
(i) employees and third-party providers who need access to the information and who have agreed to keep it confidential;
(ii) its legal advisers and insurance providers if those persons undertake to keep such information confidential; and
(iii) not disclose the other party’s Confidential Information to any person not referred to in this clause except with the other party’s prior written consent or if required by law, any stock exchange or any regulatory body.
9.2 Either party must promptly return or destroy all Confidential Information of the other party in its possession or control at the other party’s request unless required by law to retain it.
9.3 Confidential Information of a party includes all information supplied by that party excluding information:
(a) generally available in the public domain (without unauthorised disclosure under this agreement);
(b) received from a third party entitled to disclose it;
(c) that is independently developed.
9.4 The obligations of this clause 9 shall survive termination or cancellation of these Terms of Trade.
10. Customer’s Disclaimer
10.1 The Customer hereby disclaims any right to rescind, or cancel any contract with The Company or to sue for damages or to claim restitution arising out of any inadvertent misrepresentation made to the Customer by the Company and the Customer acknowledges that the Goods are bought relying solely upon the Customer’s skill and judgment.
11.1 The Company and the Customer agree that ownership of the Goods shall not pass until:
(a) the Customer has paid the Company all amounts owing to the Company; and
(b) the Customer has met all of the Customer’s other obligations to the Company.
11.2 Receipt by the Company of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised.
11.3 It is further agreed that until ownership of the Goods passes to the Customer in accordance with clause 11.1:
(a) the Customer is only a bailee of the Goods and must return the Goods to the Company on request.
(b) the Customer holds the benefit of the Customer’s insurance of the Goods on trust for the Company and must pay to the Company the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed.
(c) the Customer must not sell, dispose, or otherwise part with possession of the Goods other than in the ordinary course of business and for market value. If the Customer sells, disposes or parts with possession of the Goods then the Customer must hold the proceeds of any such act on trust for the Company and must pay or deliver the proceeds to the Company on demand.
(d) the Customer should not convert or process the Goods or intermix them with other goods but if the Customer does so then the Customer holds the resulting product on trust for the benefit of the Company and must sell, dispose of or return the resulting product to the Company as it so directs.
(e) the Customer irrevocably authorises the Company to enter any premises where the Company believes the Goods are kept and recover possession of the Goods.
(f) the Company may recover possession of any Goods in transit if delivery has occurred.
(g) the Customer shall not charge or grant an encumbrance over the Goods nor grant nor otherwise give away any interest in the Goods while they remain the property of the Company.
(h) the Company may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Customer.
12. Personal Property Securities Act 1999 (“PPSA”)
12.1 Upon assenting to these terms and conditions in writing the Customer acknowledges and agrees that:
(a) these terms and conditions constitute a security agreement for the purposes of the PPSA; and
(b) a security interest is taken in all Goods and proceeds of Goods for all Goods and Services – that have previously been supplied and that will be supplied in the future by the Company to the Customer.
12.2 The Customer undertakes to:
(a) sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which the Company may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register;
(b) indemnify, and upon demand reimburse, the Company for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register or releasing any Goods charged thereby;
(c) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods and/or collateral (account) in favour of a third party without the prior written consent of the Company; and
(d) immediately advise the Company of any material change in its business practices of selling the Goods which would result in a change in the nature of proceeds derived from such sales.
12.3 The Company and the Customer agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms and conditions.
12.4 The Customer waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA.
12.5 Unless otherwise agreed to in writing by the Company, the Customer waives its right to receive a verification statement in accordance with section 148 of the PPSA.
12.6 The Customer shall unconditionally ratify any actions taken by the Company under clauses 12.1 to 12.5.
13. Security and Charge
13.1 In consideration of the Company agreeing to supply the Goods, the Customer charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Customer either now or in the future, to secure the performance by the Customer of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
13.2 The Customer indemnifies the Company from and against all the Company’s costs and disbursements including legal costs on a solicitor/Customer basis incurred in exercising the Company’s rights under this clause.
13.3 The Customer irrevocably appoints the Company and each director of the Company as the Customer’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 13 including, but not limited to, signing any document on the Customer’s behalf.
14.1 All Goods manufactured by the Company are guaranteed against faulty workmanship, materials or design for the period of 12 months from the date of despatch by the Company.
14.2 The conditions applicable to the warranty given by clauses 14.1 are:
(a) the warranty shall be void in relation to any defect or damage which may be caused or partly caused by or arise through:
(i) any tampering with the Goods on the part of the Customer; or
(ii) failure on the part of the Customer to properly store/install/maintain/use any Goods; or
(iii) failure on the part of the Customer to follow any instructions or guidelines provided by the Company; or
(iv) any use of any Goods otherwise than for any application specified on a quote or order form; or
(v) the continued use of any Goods after any defect becomes apparent or would have become apparent to a reasonably prudent operator or user; or
(vi) fair wear and tear, any accident or act of God.
(b) the defective Goods or parts of Goods are returned to the Company at the Customer’s cost, whereupon it will be replaced or repaired at the Company’s discretion.
(c) the warranty shall cease and the Company shall thereafter in no circumstances be liable under the terms of the warranty if the Goods are repaired, altered or overhauled without the Company’s consent.
(d) in respect of all claims the Company shall not be liable to compensate the Customer for any delay in either replacing the Goods and/or remedying the workmanship or in properly assessing the Customer’s claim.
(e) The Company shall not be liable for consequential or special damages under any circumstances.
14.3 Any Goods or components not manufactured by the Company are subject to the supplier’s warranty only and are subject to the terms of the supplier’s warranty. The Company will ensure that the Customer receives the benefit of the supplier’s warranty.
14.4 The Company is not liable under clause 14.1 unless the Goods have been paid for in full.
15. Cancellation of Orders and Returns
15.1 The Company is not obliged to accept any cancellation of order or return of Goods.
15.2 Goods will only be accepted for return in accordance with 15.1 above provided that:
(a) the Company has agreed in writing to accept the return of the Goods; and
(b) the Goods are returned at the Customer’s cost to the Company’s premises within seven (7) days of the date of despatch; and
(c) the Goods are returned in the condition in which they were delivered and with all packaging material, brochures and instruction material in as new condition.
15.3 Subject to clause 15.2 the Company may (in its sole discretion) accept the return of Goods but shall be entitled to charge a handling fee of ten percent (10%) of the value of the returned Goods plus any freight.
15.4 Subject to clause 15.1, non-stocklist items or Goods made to the Customer’s specifications are not acceptable for credit or return.
16. Consumer Guarantees Act 1993
16.1 If the Customer is acquiring Goods for the purposes of a trade or business, the Customer acknowledges that the provisions of the Consumer Guarantees Act 1993 do not apply to the supply of Goods by the Company to the Customer.
17. Default and Consequences of Default
17.1 Interest on overdue invoices shall accrue on any sum which remains unpaid after the 20th of the month following dispatch, until the date of payment, at a rate of one point five percent (1.5%) per month (and at the Company’s sole discretion such interest shall compound monthly at such a rate after as well as before any judgment).
17.2 If the Customer owes the Company any money the Customer shall indemnify the Company from and against all costs and disbursements incurred by the Company in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor/Customer basis, the Company’s collection agency costs, and bank dishonour fees).
17.3 Further to any other rights or remedies the Company may have under these Terms of Trade, if a Customer has made payment to the Company, and the transaction is subsequently reversed, the Customer shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by the Company under this clause 17.
17.4 Without prejudice to the Company’s other remedies at law the Company shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to the Company shall, whether or not due for payment, become immediately payable if:
(a) any money payable to the Company becomes overdue, or in the Company’s opinion the Customer will be unable to make a payment when it falls due;
(b) the Customer has exceeded any applicable credit limit provided by the Company.
(c) the Customer becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of the Customer’s creditors; or
(d) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer.
18.1 Without prejudice to any other remedies the Company may have, if at any time the Customer is in breach of any obligation (including those relating to payment) under these terms and conditions the Company may suspend or terminate the supply of Goods to the Customer. The Company will not be liable to the Customer for any loss or damage the Customer suffers because the Company has exercised its rights under this clause.
18.2 The Company may cancel any contract to which these terms and conditions apply or cancel delivery of Goods at any time before the Goods are delivered by giving written notice to the Customer. On giving such notice the Company shall repay to the Customer any money paid by the Customer for the Goods. The Company shall not be liable for any loss or damage whatsoever arising from such cancellation.
18.3 In the event that the Customer cancels delivery of Goods the Customer shall be liable for any and all loss incurred (whether direct or indirect) by the Company as a direct result of the cancellation (including, but not limited to, any loss of profits).
18.4 Cancellation of orders for Goods made to the Customer’s specifications, or for non-stocklist items, will not be accepted once production has commenced, or an order has been placed.
19. Privacy Act 1993
19.1 The Customer authorises the Company or the Company’s agent to:
(a) access, collect, retain and use any information about the Customer;
(i) (including any overdue fines balance information held by the Ministry of Justice) for the purpose of assessing the Customer’s creditworthiness; or
(ii) for the purpose of marketing products and services to the Customer.
(b) disclose information about the Customer, whether collected by the Company from the Customer directly or obtained by the Company from any other source, to any other credit provider or any credit reporting agency for the purposes of providing or obtaining a credit reference, debt collection or notifying a default by the Customer.
19.2 Where the Customer is an individual the authorities under clause 19.1 are authorities or consents for the purposes of the Privacy Act 1993.
19.3 The Customer shall have the right to request The Company for a copy of the information about the Customer retained by The Company and the right to request the Company to correct any incorrect information about the Customer held by the Company.
20. Service of Notices
20.1 Any written notice given by a party under these Terms of Trade shall be deemed to have been given and received:
(a) by handing the notice to the other party, in person;
(b) by leaving it at the address of the other party as stated in these Terms of Trade;
(c) by sending it by registered post to the address of the other party as stated in these Terms of Trade;
(d) if sent by facsimile transmission to the fax number of the other party as stated in these Terms of Trade (if any), on receipt of confirmation of the transmission;
(e) if sent by email to the other party’s last known email address.
20.2 Any notice that is posted shall be deemed to have been served, unless the contrary is shown, at the time when by the ordinary course of post, the notice would have been delivered.
21.1 The failure by either party to enforce any provision of these Terms of Trade shall not be treated as a waiver of that provision, nor shall it affect that party’s right to subsequently enforce that provision. If any provision of these Terms of Trade shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
21.2 These Terms of Trade and any contract to which they apply shall be governed by the laws of New Zealand and are subject to the jurisdiction of the Courts of New Zealand.
21.3 The Company shall be under no liability whatsoever to the Customer for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by the Company of these terms and conditions (alternatively the Company’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Goods).
21.4 The Company may licence and/or assign all or any part of its rights and/or obligations under these Terms of Trade without the Customer’s consent.
21.5 The Customer cannot licence or assign without the written approval of the Company.
21.6 The Company may sub-contract all or any part of its rights and/or obligations under these Terms of Trade with the written consent of the Customer, which shall not be unreasonably withheld. Where the Company elects to sub-contract out any part of its obligations, it shall not be relieved from any liability or obligation under these Terms of Trade by so doing. Furthermore, the Customer agrees and accepts that the Customer has no authority to give any instruction to any of the Company’s sub-contractors without the authority of the Company.
21.7 The Customer agrees that the Company may amend these terms and conditions by notifying the Customer in writing. These changes shall be deemed to take effect from the date on which the Customer accepts such changes, or otherwise at such time as the Customer makes a further request for the Company to provide Goods to the Customer.
21.8 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.
21.9 Both parties warrant that they have the power to enter into these Terms of Trade and have obtained all necessary authorisations to allow them to do so, that they are not insolvent and that these Terms of Trade create binding and valid legal obligations on them.