These terms of trade ("Terms") shall apply to all orders for parts, materials ("Goods") and service facilities ("Services") accepted by Skar & Athos Limited ("Company") from the Customer ("Customer") and shall prevail over any terms asserted by the Customer.
Quotation and Price
The Customer shall confirm acceptance of any quotation issued by the Company by signing a written order. A quotation that is not signed by the Company shall not constitute a valid offer. The Company may withdraw any quotation before the Customer's signed acceptance. The price may be increased by the amount of any increases in the cost of the supply, production or delivery of Goods which are beyond the Company's control and which occur between the date of the quotation (or the date of the order, where no quotation) and the date of delivery, and in any case where the Customer alters the requirements for the Goods or 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.
If the Company, despite having accepted an order, finds that Goods are unable to be supplied, the Company may cancel the order without incurring any liability whatsoever to the Customer.
Payment shall be made forthwith 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 the date of invoice. The Customer shall pay all amounts when due to the Company without any deduction, set-off or counterclaim. The Company may at any time at its sole discretion cancel any credit arrangement previously agreed with the Customer and may require immediate payment of any sums outstanding. It may require the Customer to provide security for payment. The Company may suspend performance of its own obligation to supply Goods or Services until all sums previously invoiced have been paid in full or until security is provided to the Company's satisfaction and may require the Customer to pay all costs incurred as a result of suspension and re-commencement of supply.
The Company may alternatively elect to cancel any outstanding orders and not to deal further with the Customer. Such election shall not relieve the Customer of its obligation to make payment of all sums owed to the Company or from liability for any prior breach of these Terms.
Interest for Late Payment and Suspension of Supply
The Company may charge the Customer interest on any amounts overdue to the Company at 5% above the Company's bank indicator lending rate, calculated daily. Interest shall be payable from the date payment was due until the date the Company receives payment. The Company's right to charge interest is additional to any other rights and remedies available to the Company in respect of the Customer's default or delay in payment. The Company may suspend performance of its own obligation to supply Good or Services and maintain a lien over any Goods or documents relating to the Goods which are or come into its possession until payment is made in full, whether or not the amount due relates to such Goods or documents. The Customer shall indemnity the Company in respect of any storage or other charges incurred in relation to the same.
The Customer shall indemnify the Company in respect of all actual costs, expenses or disbursements incurred by the Company in recovering money from the Customer, including without limitation, debt collection agency fees and legal fees.
Delivery is made when Goods are handed to a carrier for transmission to the Customer or, if collected by the Customer, on being handed to the Customer at the Company's premises. If the Customer fails to accept Goods from the carrier the Customer shall indemnify the Company against any additional costs of storage or transport or both that it incurs as a result.
The Company shall have no liability in respect of delays in delivery.
Goods may be delivered in instalments at the Company's discretion and in such case each delivery shall be invoiced and paid for by the Customer in accordance with the payment terms set out in these Terms.
Risk, Ownership, Title, Lien
Risk of loss, damage or deterioration of or to the Goods shall pass to the Customer at the time of delivery. Title to the Goods shall remain with the Company until paid for in full. Until the Goods have been paid for in full the Customer must store the Goods separately in such manner as makes them identifiable as the property of the Company and shall properly store, protect and insure the Goods.
The Customer shall nevertheless be entitled to sell the Goods in the ordinary course of business and to deal with such proceeds as fiduciary agent and trustee of the Company until the Goods have been paid for in full, provided that the Company may revoke this authority at any time by written notice if the Company cancels any credit arrangement entered into with the Customer or if the Customer is in default of its obligations to the Company in respect of the Goods or any other goods or Services. The Customer's entitlement to sell the Goods shall terminate automatically if the Customer commits any act of bankruptcy or insolvency, enters into any composition or arrangement with creditors, or 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.
The Company shall have a particular and general lien over the Goods which is additional to and not in substitution for any other rights available to the Company at law or by statute. The exercise of any right available to the Company shall not operate as an election or as a waiver of other rights. The Company may enter any property where the Goods may be found and remove the same, to the value of the unpaid amount and whether or not the particular Goods are those to which the debt relates. The Company shall have no liability 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.
Personal Property Securities Act 1999
In respect of Goods supplied to the Customer, or Services supplied in respect of Customer-owned goods, these Terms constitutes a security agreement for the purposes of the Personal Property Securities Act and the Customer grants to the Company a security interest (including a purchase money security interest) in all Goods supplied to the Customer and in the Customer's present and after acquired property.
The security interest relates to any Goods previously supplied by the Company to the Customer and to all Goods to be supplied in the future by the Company to the Customer.The Customer shall:
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 in the PPSR or releasing any Goods charged thereby
c. not register a financing change statement or a change demand 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.
Nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these Terms.
The Customer 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 in writing by the Company, the Customer waives its right to receive a verification statement in accordance with s 148 of the PPSA.
The Customer shall unconditionally ratify any actions taken by the Company under these Terms.
The Customer must not enter into any security agreement that allows any other person to have or to register a security interest in relation to the Goods or any proceeds of sale of the Goods.
Claims for Returned, Damaged or Defective Goods
The Company may, at its discretion, repair or replace any Goods which it accepts were sold in damaged or defective condition or make a reasonable allowance on the purchase of goods to replace the Goods or refund the price of the Goods. Where the Company elects to repair Goods, it shall return them to as near as reasonably possible to an as-new condition. Where the Company elects to replace Goods, the replacement goods may be of similar description and value. In all cases repaired and replaced Goods shall become subject to these Terms. For the purpose of this provision, "defective" means that theGoods have been manufactured from faulty materials or the Company's faulty workmanship.
No claim will be considered unless the Customer returns the Goods at its own cost within seven (7) days of delivery (time being of the essence), together with a copy of the invoice for the Goods, and must provide a written claim that specifically identifies the alleged damage or defect(s). The Company is entitled to a reasonable time to consider the claim before responding to the same.
No claim will be accepted in respect of Goods which:
i. are not intact or are not in original condition
ii. have been abused or improperly stored or suffered damage after delivery to the Customer
iii. were sold to the Customer on a non-refundable basis
iv. were sold to the Customer on tender or in non-standard lots or with special labelling
v. were not purchased from the Company.
A 20% restocking fee may apply.
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.
Consumer Guarantees Act 1993
Except where the Customer is a consumer as defined in the Consumer Guarantees Act 1993, the Act shall not apply to these Terms or to the supply of Goods or Services. The Customer and the Company agree that where the Customer is not a consumer the Goods and Services supplied by the Company are supplied and acquired in trade and they agree to contract out of the provision of the Act. They further agree that it is fair and reasonable for them to be bound by the provisions of this clause.
These Terms and all dealings between the Customer and the Company shall be subject to New Zealand law. The Customer and the Company will meet and discuss in good faith any dispute between them arising out of this agreement. If such discussions fail to resolve the dispute, either party may, by written notice to the other party, require that the dispute be submitted for mediation by a single mediator nominated by the President for the time being of the Auckland District Law Society. The cost of the mediation will be shared equally between the parties. Neither party may issue any legal proceedings (except for urgent interlocutory relief) in respect of any such dispute unless that party has first taken all reasonable steps to comply with this clause.
The Company's rights, powers, exemptions and remedies 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 term unless such waiver is in writing and signed by an authorised officer of the Company thereof and any such waiver, unless the contrary is expressly stated, shall apply only to a particular transaction, dealing or matter.
I/We hereby irrevocably authorise any person or company to provide you with such information as you may require in response to your credit enquiries. I/We further authorise you to furnish to any third party, details of this application and any subsequent dealings that I/We have with you as a result of this application being actioned by you.
I/We hereby make application for a credit account to be opened in the above name and irrevocably authorise any company or person to provide Skar & Athos Ltd with such information as they may require to satisfy their credit enquiries.
I/We authorise Skar & Athos Ltd to pass personal information to a Credit reporting bureau for the purpose of credit checking. This information may be used to update and maintain credit information files and will be accessed by the customers of the credit reporting database.
I/We warrant that the foregoing information is correct to the best of my/our knowledge, and that I/We have read, understood and agree to be bound by the Skar & Athos Ltd Terms of Trade and that in signing this credit application I/We also understand and accept that the terms and conditions of the Terms of Trade will govern every order or confirmation of quotation that I/We enter into with Skar & Athos Ltd for the purchase of Goods or Services.
I/We hereby assent for the purposes of s.36(b) of the Personal Properties Securities Act to the terms of this Application for Credit and Terms of Trade and to the retention of title clauses creating a Purchase Money Security Interest in all Goods and Services previously supplied by Skar & Athos Ltd and in the Goods and Services that will be supplied in the future that remain unpaid by me/us up to the credit limit agreed in this Application for Credit. I/We further hereby waive the right to receive a verification statement for purposes of s.148 of the Act.
I/We warrant to Skar & Athos Ltd that I/We are authorised Directors, Employees or Agents of the Applicant to enter into this contract on behalf of the Applicant.