Conditions of Use
"Seller" shall mean Te Pari Products Ltd its successors and assigns or any person acting on behalf of and with the authority of Te Pari Products Ltd.
"Buyer" shall mean the Buyer (or any person acting on behalf of and with the authority of the Buyer) as described on any quotation, work authorisation or other form as provided by the Seller to the Buyer. "Guarantor" means that person (or persons), or entity, who agrees to be liable for the debts of the Buyer on a principal debtor basis.
"Goods" shall mean Goods supplied by the Seller to the Buyer (and where the context so permits shall include any supply of services) and includes Goods described on any invoices, quotations or any other forms as provided by the Seller to the Buyer.
"Price" shall mean the price payable for the Goods as agreed between the Seller and the Buyer in accordance with clause 3 of this contract.
Full Terms and Conditions
The Seller's full terms and conditions shall apply to any sale above $800.00 and shall be provided to the Buyer on delivery of the Goods. The Buyer shall be deemed to have accepted the Full Terms and Conditions if they accept the Goods and do not return them to the Seller within seven (7) days of receipt of the Goods.
Price And Payment
At the Seller's sole discretion the Price shall be either;
as indicated on invoices provided by the Seller to the Buyer in respect of Goods supplied; or
the Seller's current price at the date of delivery of the Goods according to the Seller's current catalogue; or
the Seller's quoted Price (subject to clause 3.2) which shall be binding upon the Seller provided that the Buyer shall accept the Seller's quotation in writing within thirty (30) days.
At the Seller's sole discretion a deposit may be required.
At the Seller's sole discretion;
payment shall be due on delivery of the Goods, or
payment for approved Buyers shall be made by instalments in accordance with the Seller's payment schedule; or
payment for approved Buyer's shall be due twenty (20) days following the end of the month in which a statement is posted to the Buyer's address or address for notices.
Time for payment for the Goods shall be of the essence and will be stated on the invoice or any other forms. If no time is stated then payment shall be due seven (7) days following the date of the invoice.
Payment will be made by cash, or by cheque, or by bank cheque, or by credit card (for purchases up to $10,000 only), or by direct credit, or by any other method as agreed to between the Buyer and the Seller.
GST and other taxes and duties that may be applicable shall be added to the Price except when they are expressly included in the Price.
- Delivery Of Goods
- At the Seller's sole discretion delivery of the Goods shall take place when;
- the Buyer takes possession of the Goods at the Seller's address; or
- the Buyer takes possession of the Goods at the Buyer's address (in the event that the Goods are delivered by the Seller or the Seller's nominated carrier).
- The failure of the Seller to deliver shall not entitle either party to treat this contract as repudiated.
- The Seller shall not be liable for any loss or damage whatever due to failure by the Seller to deliver the Goods (or any of them) promptly or at all.
- If the Seller retains ownership of the Goods nonetheless, all risk for the Goods passes to the Buyer on delivery.
- The Seller and Buyer agree that ownership of the Goods shall not pass until:
- the Buyer has paid the Seller all amounts owing for the particular Goods, and
- the Buyer has met all other obligations due by the Buyer to the Seller in respect of all contracts between the Seller and the Buyer.
- Receipt by the Seller 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 and until then the Seller's ownership or rights in respect of the Goods shall continue.
- Personal Property Securities Act 1999 ("PPSA")
- Upon assenting to these terms and conditions in writing the Buyer acknowledges and agrees that:
- these terms and conditions constitute a security agreement for the purposes of the PPSA; and
- a security interest is taken in all Goods previously supplied by the Seller to the Buyer (if any) and all Goods that will be supplied in the future by the Seller to the Buyer.
- The Buyer undertakes to:
- 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 Seller may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register;
- indemnify, and upon demand reimburse, the Seller 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;
- not register a financing change statement or a change demand without the prior written consent of the Seller; and
- immediately advise the Seller 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.
- The Seller and the Buyer agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms and conditions.
- The Buyer waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA.
- Unless otherwise agreed to in writing by the Seller, the Buyer waives its right to receive a verification statement in accordance with section 148 of the PPSA.
- The Buyer shall unconditionally ratify any actions taken by the Seller under clauses 7.1 to 7.5.
- Buyer's Disclaimer
- The Buyer hereby disclaims any right to rescind, or cancel any contract with the Seller or to sue for damages or to claim restitution arising out of any misrepresentation made to the Buyer by the Seller and the Buyer acknowledges that the Goods are bought relying solely upon the Buyer's skill and judgement.
- The Buyer shall inspect the Goods on delivery and shall within fourteen (14) days of delivery (time being of the essence) notify the Seller of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. If the Buyer shall fail to comply with these provisions the Goods shall be presumed to be free from any defect or damage. For defective Goods, which the Seller has agreed in writing that the Buyer is entitled to reject, the Seller's liability is limited to either (at the Seller's discretion) replacing the Goods or repairing the Goods.
- Returns will only be accepted provided that:
- the Buyer has complied with the provisions of clause 9.1; and
- the Seller has agreed in writing to accept the return of the Goods; and
- the Goods are returned at the Buyer's cost within twenty-eight (28) days of the delivery date; and
- the Seller will not be liable for Goods which have not been stored or used in a proper manner; and
- 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.
- The Seller may (in its discretion) accept the return of Goods for credit but this may incur a handling fee of 10% of the value of the returned Goods plus any freight.
- Subject to the conditions of warranty set out in Clause 11.2 the Seller warrants that if any defect in any workmanship of the Seller becomes apparent and is reported to the Seller within twelve (12) months of the date of delivery (time being of the essence) then the Seller will either (at the Seller's sole discretion) replace or remedy the workmanship.
- The conditions applicable to the warranty given by Clause 11.1 are:
- The warranty shall not cover any defect or damage which may be caused or partly caused by or arise through:
- Failure on the part of the Buyer to properly maintain any Goods; or
- Failure on the part of the Buyer to follow any instructions or guidelines provided by the Seller; or
- Any use of any Goods otherwise than for any application specified on a quote or order form; or
- The continued use of any Goods after any defect becomes apparent or would have become apparent to a reasonably prudent operator or user; or
- Fair wear and tear, any accident or act of God.
- The warranty shall cease and the Seller shall thereafter in no circumstances be liable under the terms of the warranty if the workmanship is repaired, altered or overhauled without the Seller's consent.
- In respect of all claims the Seller shall not be liable to compensate the Buyer for any delay in either replacing or remedying the workmanship or in properly assessing the Buyer's claim.
- For Goods not manufactured by the Seller, the warranty shall be the current warranty provided by the manufacturer of the Goods. The Seller shall not be bound by nor be responsible for any term, condition, representation or warranty other than that which is given by the manufacturer of the Goods.
- Consumer Guarantees Act 1993
- If the Buyer is acquiring Goods for the purposes of a trade or business, the Buyer acknowledges that the provisions of the Consumer Guarantees Act 1993 do not apply to the supply of Goods by the Seller to the Buyer.
- Default & Consequences Of Default
- Interest on overdue invoices shall accrue from the date when payment becomes due daily until the date of payment at a rate of 2.5% per calendar month and such interest shall compound monthly at such a rate after as well as before any judgement.
- If the Buyer defaults in payment of any invoice when due, the Buyer shall indemnify the Seller from and against all costs and disbursements incurred by the Seller in pursuing the debt including legal costs on a solicitor and own client basis and the Seller's collection agency costs.
- Without prejudice to any other remedies the Seller may have, if at any time the Buyer is in breach of any obligation (including those relating to payment), the Seller may suspend or terminate the supply of Goods to the Buyer and any of its other obligations under the terms and conditions. The Seller will not be liable to the Buyer for any loss or damage the Buyer suffers because the Seller has exercised its rights under this clause.
- If any account remains overdue after thirty (30) days then an amount of the greater of $20.00 or 10.00% of the amount overdue (up to a maximum of $200) shall be levied for administration fees which sum shall become immediately due and payable.
- Privacy Act 1993
- The Buyer and the Guarantor/s (if separate to the Buyer) authorises the Seller to:
- collect, retain and use any information about the Buyer, for the purpose of assessing the Buyer's creditworthiness or marketing products and services to the Buyer; and
- disclose information about the Buyer, whether collected by the Seller from the Buyer directly or obtained by the Seller 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 Buyer.
- Where the Buyer and/or Guarantors are an individual the authorities under clause 17.1 are authorities or consents for the purposes of the Privacy Act 1993.
- The Buyer and/or Guarantors shall have the right to request the Seller for a copy of the information about the Buyer and/or Guarantors retained by the Seller and the right to request the Seller to correct any incorrect information about the Buyer and/or Guarantors held by the Seller.
- The Buyer warrants that any goods offered by him as a trade-in and allowance against the Price are free of all liens, charges and encumbrances of any kind and that they are owned by the Buyer outright. The Buyer undertakes to deliver the goods comprised in any trade-in in as good condition and with the same accessories /equipment as when appraised by the Seller.
- If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
- These terms and conditions 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.
- The Seller shall be under no liability whatever to the Buyer for any indirect loss and/or expense (including loss of profit) suffered by the Buyer arising out of a breach by the Seller of these terms and conditions.
- In the event of any breach of this contract by the Seller the remedies of the Buyer shall be limited to damages which under no circumstances shall exceed the Price of the Goods.
- The Buyer shall not be entitled to set off against or deduct from the Price any sums owed or claimed to be owed to the Buyer by the Seller.
- The Seller may license or sub-contract all or any part of its rights and obligations without the Buyer's consent.
- The Seller reserves the right to review these terms and conditions at any time. If, following any such review, there is to be any change to these terms and conditions, then that change will take effect from the date on which the Seller notifies the Buyer of such change.
- The provisions of the Contractual Remedies Act 1979 shall apply to this contract as if section 15(d) were omitted from the Contractual Remedies Act 1979.
- Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock out, industrial action, fire, flood, drought, storm or other event beyond the reasonable control of either party.
- The failure by the Seller to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect the Seller's right to subsequently enforce that provision.