APPLICABLE TERMS AND ACCEPTANCE OF ORDER
These terms of contract between C R KENNEDY (NZ) LIMITED (the "Company") shall apply to all orders for parts, materials and service facilities ("Goods and Services") accepted by the Company from the Customer ("Customer") and that these Terms and Conditions shall prevail and take precedence over any document or oral message from the Customer. Where the Company fails to enforce any terms or conditions under this contract the Company will not be deemed to have waived these rights with respect to any term or condition or right.
Quotation and Price
The Company shall confirm the price of Goods and Services as a quotation and the Customer shall confirm acceptance by signing the order.
No quotation shall constitute an offer unless signed by the Company and the Company may withdraw any quotation before the Customer's signed acceptance. The quotation price may be increased if the Company suffers any cost increases which are beyond its control in the supply, production and delivery of Goods (including increases in imported materials and duties) between the date of Contract (or where the Contract arises from a quotation, the date of quotation) and the date of delivery, or if the Customer varies or alters the requirements for the Goods and Services. All prices are exclusive of GST, insurance, freight and other handling charges which shall be invoiced by the Company and payable by the Customer.
Payment shall be made upon delivery of the Goods except where the Company has agreed to provide credit to the Customer in which case payment shall be made by the 20th of the month following date of invoice. The Customer shall make payment of all amounts due to the Company without any delay or deduction whether by way of set-off, counterclaim or otherwise. If at any time the Company reasonably deems the credit of the Customer to be unsatisfactory, it may require the Customer to provide at the Customer's cost, security for payment and/or the Company may suspend performance of its obligations under this Contract until security is provided to the Company's satisfaction and the Company may require the Customer to pay all costs incurred as a result of suspension and re-commencement of supply.
Interest for Late Payment and Suspension of Supply
The Company may charge the Customer interest on any money's outstanding under the Contract on a daily basis at a rate equal to 5% above the Company's bank indicator lending rate. Interest is payable from the date payment was due until the date the Company receives payment. The Company's right to charge interest is without prejudice to the Company's other rights or remedies for the Customer's default in failing to pay on the due date, and the Company may suspend performance of any of its obligations under this contract or any other contract between the Company and Customer and secure any Goods in its possession until payment is made in full. The Company may charge the Customer any charges and fees charged to the Company in relation to claiming any outstanding monies.
If you do not make any payment when due, in addition to any other remedies, we may recover from you any costs, expenses or disbursements incurred by us in recovering money from you, including without limitation, debt collection agency fees and legal fees.
Delivery by the Company to a carrier accepted by the Customer or delivery from the Company's premises when the company advises it is ready to deliver constitutes delivery. If the Customer fails to take delivery the Company has the right to charge the Customer for costs of storage or transport or both.
In the event of parts and materials and imported goods or any part thereof being unavailable and outside the reasonable control of the Company, the Company may notify the Customer that the Company is unable to fulfil the order and may cancel the contract without any liability whatsoever.
Goods that are finished items but only part of an order may be delivered in instalments at the Company's discretion and in such case each delivery will be regarded as a separate contract and Goods delivered shall be paid by the Customer in accordance with the Terms of Payment.
The Company will make every effort to ensure delivery of Goods but will not be liable for any loss or damage or consequential loss to the Customer arising from delays in delivery.
Risk, Ownership and Title
Risk of any loss, damage or deterioration of or to the Goods shall be borne by the Customer from the time of delivery of the Goods into the Customer's care and control.
The Customer agrees that the Company has legal and equitable right to title in the Goods and ownership shall only pass to the Customer when the contract price is paid. For as long as ownership in the Goods is retained by the Company, the Customer will store the goods separately and in such a way that they are identifiable as the property of the Company and shall properly store, protect and insure the Goods from fire and loss damage.
Where the Company supplies labour services to the Customer for the repair or maintenance of Customer owned Goods, the Customer agrees that the Company has legal and equitable title to the finished Goods at a value equal to the contribution of the labour services to the end value of the Goods until the Customer pays in full without deduction or setoff.
Notwithstanding that property in the Goods is retained by the Company, the Customer is hereby authorised to sell the Goods in the ordinary course of business and to deal with such proceeds as fiduciary agent of the Company until the Customer pays the Company in full without deduction or setoff: provided that such authority may be revoked by written notice at any time if the Company deems the credit of the Customer to be unsatisfactory or if the Customer is in default of its obligations under the contract or any other contract between the Company and the Customer, and shall be deemed automatically revoked if the Customer shall commit any act of bankruptcy, enter into any composition or arrangement with creditors, or (in the case of a Company) do any act which would render it liable to be liquidated or if a resolution is passed or proceedings commenced for the liquidation of the Customer or a Receiver is appointed in respect of all or any assets of the Customer.
Where Goods in respect of which property has not passed to the Customer are sold by the Customer pursuant to the authority granted any book debt created upon sale of such Goods and the proceeds of sale of such Goods when received by the Customer, shall be held upon trust by the Customer for the Company and any proceeds of sale so received by the Customer shall be placed in a separate bank account and shall first be applied towards the satisfaction of all indebtedness of the Customer to the Company.
If the Goods, the subject of this contract, have become the constituent of mixed with or attached to any other goods, meaning Goods that are sold by the Company, and those goods are sold by the Customer prior to the Company receiving payment, then a portion of the proceeds of that sale, attributable to the Company's Goods, shall be the property of the Company, and the Customer shall ensure that such proceeds are at all times held in a separate fund in trust for the Company.
The Customer shall inform its creditors of the terms upon which it buys Goods from the Company and shall provide the Company when requested for the business name, address and contact details of its creditors purchasing Goods in which the Company has retained title and also including that the Company may create and register a Purchase Money Security Interest over the Goods under the Personal Property Securities Act. The Customer also agrees to waive the right to receive a verification statement for purposes of s.148 of the Act and shall also inform any Trustee in Bankruptcy or Liquidator of the Customer or any Receiver of the Customer’s business or assets of the rights of the Company and title to the proceeds of sale.
In any event where Goods remain unpaid by the Customer, the Company has unreserved right to enter the property of the Customer or its agents during normal business hours and remove Goods relating to the unpaid amount in accordance with the Credit (repossession) Act and the Customer will not hold the Company responsible for any economic or consequential loss that the Customer may suffer as a result, whether the Goods are attached to other goods or property owned by the Customer, or not.
Claims for Returned, Damaged or Defective Goods
The Company may, at its discretion, repair any damaged or defective Goods or make a reasonable allowance on the purchase of goods to replace the Goods or refund the price of the Goods, provided:
(a) The Customer returns the Goods within seven (7) days of delivery at the Customers cost, together with a copy of the invoice and a claim specifically identifying the damage or defect(s); and
(b) The Company has reasonable opportunity to investigate the claim.
If the Customer does not comply with the above requirements, the Customer will be deemed to have accepted the Goods and the Company will not incur any liability whatsoever in relation to the Goods.
The Customer agrees that claims shall not be considered in respect of Goods which:
(i) are not intact and in original condition
(ii) have been abused or improperly stored or suffered damage
(iii) have been sold to the Customer on a non-refundable basis
(iv) have been sold to the Customer on tender or in non-standard lots or special labelling.
(v) are more than (2) two months after the date of delivery.
(vi) have been purchased by the Customer from persons other than the Company or by parallel importing into New Zealand.
Company Guarantee & Liability
The Company's liability in respect of any claim shall relate only to specific defects in the Goods arising from faulty materials or workmanship of the Company and where the Goods have been sold by the Company and not sold by any third party to the Customer.
Where the Company accepts liability for damage or defect and elects to repair or replace Goods it shall repair or replace the Goods to their original condition but where parts or materials used in manufacture are not available or where the Company has imported Goods for re-sale to the Customer which are not manufactured by the Company it shall repair or replace by other articles of similar description and value (but can be of a standard type) and such substituted articles shall become subject to the provisions of this Agreement.
The Company shall not be liable for any breach or failure to perform any of its obligations under this contract where such breach or failure is caused by war, civil commotion, hostilities, strike or lock out, act of God, fire, governmental regulations or directions, or any other cause force majeure beyond the Company's reasonable control. The occurrence of such an event shall not give the Customer a right of cancellation of the contract.
Consumer Guarantees Act 1993
Nothing in these terms is intended to have the affect of contracting out of the provisions of the Consumer Guarantees Act 1993 except to the extent permitted by that Act where the Customer acquires the Goods in a business to business situation for the business purposes of a business in terms of Sections 2 and 43 of the Act and all provisions of these terms shall be read as modified to the extent necessary to give effect to that intention.
The Customer shall not, in relation to the supply or resale to the purchaser of the Goods, give or make any undertaking, assertion or representation in relation to the Goods other than the guarantee and liability expressed without the prior approval in writing of the Company, and the Customer shall indemnify the Company against any liability or cost incurred by the Company as a result of any breach by the Customer of this provision.
Grounds for Termination by the Company
This Agreement may be terminated by the Company immediately on written notice to the Customer, if an Event of Default of payments due to the Company by the Customer occurs, and the Company may enter the premises of the Customer where the Goods are stored and remove them.
Default will also mean, if the Customer:
(a) Fails to commence operations of the contract meaning orders given to the Company on or before commencement date.
(b) Fails to comply with any quality or standards for the care of the Goods issued by the Company.
(c) Shall commit any act of bankruptcy, or enter into any composition or arrangement with creditors.
(d) Where the Customer is a Company do any act which would render it liable to be liquidated or if a resolution is passed or proceedings commenced for the liquidation of the Company or if a Receiver is appointed in respect of all or any assets of the Company.
No release from obligations. Termination of this agreement shall not relieve the Customer of its obligations to pay all money owed by it to the Company on any account whatsoever, which money shall be payable immediately notwithstanding that the date for payment of the money may not have arrived. Termination of this agreement shall not relieve the Customer from liability arising from any antecedent breach of the terms of this agreement.
Immediate Steps Upon Termination. Upon the termination of this agreement for any reason, all rights of the Customer granted by this agreement shall terminate and the Customer will not be entitled to receive any rebate or refund of the whole or any part of the money paid pursuant to this agreement.
Applicable Law for Dispute and Arbitration
In the execution and interpretation of this contract the laws of New Zealand shall apply and in the case of dispute between the Company and the Customer arising out of this Agreement, such dispute shall be heard in New Zealand and be referred to a Mediator and if the parties do not agree to the outcomes from mediation the dispute shall be referred to an Arbitrator under the laws of New Zealand to be agreed between the parties and upon failure to reach agreement arbitration be conducted in accordance with the Arbitration Act 1996 and any amendments thereof.
All the original rights, powers, exemptions and remedies of the Company shall remain in full force notwithstanding any neglect, forbearance or delay in the enforcement thereof. The Company shall not be deemed to have waived any condition unless such waive shall be in writing under signature of the Company or an authorised officer thereof and any such waiver, unless the contrary shall be expressly stated, shall apply to an operate only in a particular transaction, dealing or matter.