1. In these terms and conditions the expression “the Company” means TRICAL LIMITED and its assigns and successors and the expression “the customer” means the person, firm or corporation purchasing goods pursuant to any contract with the company and their permitted successors and assigns.
2. If there is any conflict of inconsistency between these items and conditions and the terms of any tender documents or order submitted by the customer or any price list, invoice, bill of lading or delivery docket issued by or on behalf of the company, these terms and conditions shall prevail unless otherwise agreed in writing by the company.
3. These terms and conditions shall apply to and govern the supply of all goods by the company to the customer and any services provided in connection with the supply of those goods, 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 with effect from the date of notification to the customer.
PRICE LISTS AND QUOTATIONS
5. The distribution or submission of price lists, quotations and other material supplied to the customer shall only constitute an invitation to do business and the company shall not be bound by any purported acceptance or order for goods based upon or which refers to any such material.
6. A quotation may be withdrawn at any time before acceptance by the company of an order place by the customer and in any event will lapse if an order is not placed by the customer within 30 days of its date, unless otherwise agreed in writing by the company.
7. If there is any amendment to an order placed by the customer and accepted by the company or any additional goods or services are requested by the customer, the company reserves the right to increase the quotation price or to charge the customer for the additional goods or services at its standard prices or rates.
ACCEPTANCE OF ORDERS
8. All orders are subject to and are not binding until their acceptance by the company. After acceptance by the company no order may be cancelled or amended without the prior approval of the company and then only on the terms specified by the company.
PRICE AND DELIVERY
9. Except where a quotation is provided, the price of the goods or services is the standard price in force at the date of delivery.
10. The price excludes GST and delivery and/or insurance costs, except to the extent any of those items are expressly included.
11. The company reserves the right to increase a quotation 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 the cost of labour or materials, currency exchange rates, governmental duties, taxes or charges, or delivery and/or insurance costs) affecting the cost of production, supply and/or delivery of the goods and which is beyond the control of the company.
12. Any discounts or rebates on the price offered by the company are conditional on payment being made on or before due date. If thecustomer fails to comply with that condition, payment of the full amount of the price shall become immediately due and payable.
13. Notwithstanding any other term or condition of this agreement or any other contract for the supply of the company’s goods or services to which these terms and conditions apply, the minimum price for goods or services charged to the customers credit account in respect of any single transaction shall be the sum of $50.00
14. Where the company agrees to deliver the goods to the customer or to an address specified by the customer, the company will arrange for delivery as agreed. In the case of delivery to an overseas customer, delivery shall take place upon loading by the company of the goods for shipment or transportation to the customer. In any other case, delivery shall take place when the company notifies the customer that the goods are available for dispatch at the company’s factory premises. If the customer fails to uplift the goods within 2 working days of that notification the company may arrange transportation of the goods as the agent of the customer and the customer shall be liable for a packing and handling fee in addition to the delivery costs referred to in Clause 15.
15. The customer shall be liable for all freight insurance and delivery costs unless otherwise agreed in writing by the company.
16. Unless otherwise agreed in writing by the company any time for delivery is an estimate only.
17. All claims for errors or short deliveries in respect of the goods or, where the company delivers the goods to the customer, for goods lost or damaged in transit, must be made in writing within 7 days of the date of delivery.
18. The goods may be delivered in instalments 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
19. Upon delivery of the goods the customer accepts all risk of all loss or damage to the goods, whether caused by the customer or not, but title or ownership of the goods shall not pass until such time as the customer has paid all sums owing to the company, whether under these agreement or any other agreement.
20. These provisions relating to risk and title shall apply notwithstanding any other term or condition of this or any other agreement or arrangement, or the time, method, place or medium of payment, or the time, place or method of delivery, or the payment of transportation or insurance charges or the terms of or any inference drawn from any bill of lading or other transportation documents.
21. Payment of the price is due on or before the date of dispatch, unless the customer is granted a credit account with the company. Where credit is extended to the customer payment is overdue if not paid by the 30th of the month following delivery of the goods.
22. In the case of an overseas customer the company reserves the right to require an irrevocable letter of credit with each order for goods place by the customer. Each such letter of credit shall become due and payable on such date as shall be specified by the company on acceptance of the order and shall otherwise be on terms acceptable to the company.
23. In the case of the customer tendering payment by a cheque, payment shall not have been made until the cheque is honoured on presentment and the monies payable under it are received in the company’s bank account in cleared funds and until such time receipt of the cheque shall not prejudice or affect the company’s rights and remedies against the customer or the goods.
24. If payment is overdue that shall constitute a breach of these 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 base lending rate of the company’s bankers for commercial overdrafts over $100,000 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 an option to pay interest instead of the amount of the overdue payment and it is in addition to the company’s other remedies.
25. If payment is overdue the company mat 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, or withhold supply of any goods ordered by the customer under any contract, until the customer has discharged all outstanding indebtedness to the company.
26. The company reserves the right to impose a credit limit which may be altered or revoked at the company’s discretion with effect from the date of notification to the customer.
27. Without prejudice to its other remedies, the company shall have a right to call for the return of the goods and may retake possession of the goods, whether or not payment may have been received for some of them, and for that purpose it shall have the right by its agents servants and employees during normal business hours to enter the premises of the customer or any other premises where the goods are situated (including premises and land and buildings that the customer may enter upon) without being liable in any way to the customer, and the customer shall indemnify the company upon demand for all claims by any third party for losses resulting from the company effecting repossession.
28. The company may re-sell any of the goods repossessed under clause 27 and apply the proceeds of sale in reduction of the indebtedness of the customer.
29. The customer will upon demand pay all the company’s expenses and legal costs (on a solicitor/agent/client basis) in the collection of overdue money’s or in the repossession of the goods.
30. Demand shall be made by the company posting a letter or invoice to the customer at the postal address given in the customer’s account application or their last known address which shall be deemed to be received by the customer two days after the date of posting of the letter or invoice.
Dealing With Goods & Proceeds
31.1 Until such time as payment is made of all moneys owing on any account to the company the customer shall hold the goods in a fiduciary capacity as bailee of the company and if requested shall store the goods separately from any other goods and in a manner that clearly shows the company’s ownership.
31.2 The customer shall be empowered to deal with the goods and sell them at their full market value in the ordinary course of the customers business. If the company calls for the return of the goods pursuant to clause 27 the customer shall immediately cease to deal with the goods and deliver them up to the company and any transactions entered into after that time shall be void.
31.3 In the event that the goods or other goods into which they have become incorporated are resold by the customer before the customer has paid all monies owing to the company, the proceeds of such resale shall be held on trust for the company and the customer and if requested by the company shall be deposited into a separate bank account and not intermingled with any other monies of the customer. The interest of the company as beneficiary under that trust shall be that portion of the proceeds as does not exceed the aggregate of all sums owing to the company and the balance of the proceeds (if any) shall be the beneficial interest of the customer under that trust.
32. 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, if any amounts payable by the customer to the company are overdue or if the customer fails to meet any obligation under this or any other contract with the company, or if the customer becomes insolvent, or if a receiver is appointed inn respect of the assets of the customer or if any arrangement with the customer’s creditors is made or likely to be made.
33. Upon cancellation of this contract all of the customer’s indebtedness to the company shall become immediately due and payable.
34. Where the Consumer Guarantees Act 1993 (‘the Act”) applies the customer shall have all the remedies provided under the Act, but no others. Where the customer acquires, or holds themselves out as acquiring, the goods or services for business purposes, the Act shall not apply.
35. If the Act does not apply the liability of the company shall be limited to the lesser of the price of the goods and services supplied or the actual loss or damage suffered by the customer or the amount recoverable by the company under its corresponding claim against its supplier, and the except to the extent of any guarantees or warranties expressly confirmed in writing by the company, all warranties, descriptions and representations and conditions as to fitness, suitability for any purpose, tolerance to any conditions, merchantability or otherwise are expressly excluded 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.
36. Where the Act does not apply, the company will at its discretion repair or replace or credit or refund to the customer the price of, defective materials or workmanship that do not comply with any express guarantee or warranty given by the company or that otherwise do not comply with the contract provided the following conditions are met:
36.1 The defect or fault occurs within 12 months of delivery or installation of the goods and
36.2 All claims must be made within 7 days of the defect or fault occurring or being discovered by the customer and
36.3 The company shall have a reasonable opportunity to investigate the claim and to repair or replace the defective goods or workmanship.
37. Where the company elects to replace goods, the replacement goods shall be supplied on and subject to these terms and conditions and shall be delivered to the customer at the customer’s own risk and expense.
38. Subject to the Act, if claims are not made in accordance with the requirements of clauses 17 or 36, the customer shall be conclusively deemed to have accepted the goods as conforming with the contract in all respects and to have waived absolutely any claims for incorrectly delivered or defective goods or workmanship and the company shall not have any liability in respect of those claims or otherwise in respect of the goods or services.
39. The company shall not be liable for any delay or failure in complying with any obligation imposed under this 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 subcontractor of the company).
RETURNS (CATALOGUE PRODUCTS ONLY)
40. Returns will only be accepted provided that:
a) The Company has agreed in writing to accept the return of the Goods; and
b) The Goods are returned with the invoice at the Customer’s cost within seven (7) days of the delivery date; and
c) The Company will not liable for Goods which have not been stored or used in a proper manner; and
d) 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 as is reasonably possible in the circumstances.
41. The Company may (in its discretion) accept the return of Goods for credit but this may incur a handling fee of twenty percent (20%) of the value of the returned Goods plus any freight.
42. The validity, performance and other incidents of this agreement and any other contract for the supply of the company’s goods or services to which these terms and conditions apply shall be governed by the construed in accordance with the laws of New Zealand. The parties expressly agree to submit to the jurisdiction of the Courts of New Zealand.