Terms of Trade
In these conditions unless the context otherwise requires:
- Company means Access NZ 2005 Limited.
- Buyer means the person, or company buying the Products and/or Services from the Company.
- Products and/or services mean the products and/or services being purchased by the Buyer from the Company.
- Contract means the contract between the Company and the Buyer for the purchase of the Products and/or Services.
- Date of the contract means where the contract arises from a quotation given by the Company, i) the date of acceptance of the order by the Company; or ii) Where the contract arises from a quotation given by the Company, the date upon written notification of acceptance of the quotation is received by the Company.
- Contract price means the price of Products and/or Services as agreed between the Buyer and the Company.
- Person includes a corporation, association, firm, company, partnership or individual. Quotation shall mean price on offer for a fixed term. Manager is the companies appointed decision maker.
- PPSA means the Personal Property Securities Act 1999.
If any instruction is received by the Company from the Buyer for the supply of products and/or services, it shall constitute acceptance of the terms and conditions contained herein. Upon acceptance of these terms and conditions by the Buyer, the terms and conditions are definitive and binding.
3. Terms and Conditions
These terms and conditions and any subsequent terms and conditions issued by the Company shall apply to all orders for the Products and/or Services and the services made by the Buyer after the date and time at which these conditions are first delivered or sent by email or facsimile to, or otherwise brought to the notice of, any employee, staff member or representative of the Buyer. It shall be the Buyer's responsibility to ensure that these conditions are promptly brought to the attention of the appropriate staff of the Buyer, and accordingly any order made by the Buyer after the date and time described above in this clause shall be deemed to be an acceptance of these conditions.
- 4.1. The Price shall be as indicated on invoices provided by the Company to the Buyer in respect of products and/ or services supplied; or
- 4.2. The Price shall be the Price of the Company's current Price at the date of delivery of any Products and/or Services.
- 4.3. Time for payment for the products and/or services shall be of the essence and will be stated on the invoice, quotation, tender documents, work authorisation form or any other work commencement forms. If no time is stated then payment shall be due on delivery of any Products and/or Services.
- 4.4. The Buyer agrees that the cost Price shall be determined by the Company, and shall take into consideration "one-off" costs such as design and production.
- 4.5. The Company reserves the right to implement a surcharge for alterations to specifications of products after the order has been placed.
5. Payment, Late Payment, Default of Payment and Consequences of Default of Payment
- 5.1. The method of payment will be made by direct credit, or by any other method as agreed to between the Buyer and the Company.
- 5.2. The Company reserves the right to charge the Buyer a deposit prior to supply of any Products and/or Services.
- 5.3. Unless the Buyer has a valid credit account with the Company, payment for the Products and/or Services (less any deposit paid), shall be made within 7 days from the date of the Company's invoice.
- 5.4. Late payment may incur interest at the rate of 18% per annum calculated daily. This shall be payable on any monies outstanding under the Contract from the date payment was due until the date payment is received by the Company, but without prejudice to the Company's other rights or remedies in respect of the Buyer's default in failing to make payment on the due date.
- 5.5. Without prejudice to any other remedies the Company may have, if at any time the Buyer is in breach of any obligation (including those relating to payment), the Company may suspend or terminate the supply of Products and/or Services to the Buyer and any of its other obligations under the terms and conditions. The Company will not be liable to the Buyer for any loss or damage the Buyer suffers because the Company exercised its rights under this clause.
- 5.6. In the event that the Buyer's account is referred to a collection agency and/or the Company's legal representatives for collection, all costs associated with such action will be added to any debt outstanding and be payable by the Buyer.
- 5.7. In the event that:
- a. any money payable to the Company becomes overdue, or in the Company's opinion the Buyer will be unable to meet its payments as they fall due; or
- b. the Buyer 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 its creditors; or
- c. a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Buyer or any asset of the Buyer; then without prejudice to the Company's other remedies at law
- d. the Company shall be entitled to cancel all or any part of any order of the Buyer that remains unperformed in addition to, and without prejudice to any other remedies; and all amounts owing to the Company shall, whether or not due for payment, immediately become payable.
- 6.1. The Contract constitutes a security interest in the Products and/or Services supplied by the Company to the Buyer for the purposes of the PPSA as security for payment by the Buyer of all amounts due under the Contract, including any future amounts.
- 6.2. The Buyer acknowledges that the Company reserves the right to register a financing statement in respect of any products and/or services supplied to the buyer.
- 6.3. The Buyer agrees to promptly execute and deliver to the Company all assignments, transfers and other agreements and documents and do anything else which the Company may deem appropriate to perfect the Company's security interest over the Buyer, or obtain the priority required by the Company or register (and renew registration) a financing statement for a security interest in favour of the Company.
- 6.4. To the extent that Part 9 of the PPSA applies, the Buyer agrees that the provisions of sections 114(1)(a), 120, 122, 133 and 134 of the PPSA which are for the Buyer's benefit, or place any obligations on the Company in the Buyer's favour, will not apply; and where the Company has rights in addition to those in Part 9 of the PPSA, those rights will continue to apply.
- 6.5. To the extent that Part 9 of the PPSA applies, without limiting anything in the previous paragraph, the Buyer hereby waives its rights under sections 116, 120(2), 121, 125, 126, 127, 129 and 131 of the PPSA, and its rights to receive a copy of a verification statement under section 148 of the PPSA in respect of any financing statement or financing change statement registered by the Company.
- 6.6. The Buyer agrees to treat the security interest in the Products and/or Services as a continuing and subsisting security with priority over a registered general security interest and any unsecured creditors, regardless of whether the Products and/or Services have become fixtures at any time before payment has been made for them.
7. Governing laws
These Terms of Trade will be interpreted in accordance with applicable government legislation, which will have exclusive legal jurisdiction over any dispute in relation to the products and/or services or these Terms of Trade.
8. Dispute resolution
The Company will endeavour to resolve any dispute between the Buyer and itself without the need for Court proceedings. Any such attempt is without legal prejudice.
9. Reservation of title
Ownership and title of any Products and/or Services supplied remains with The Company until the purchase price and all other monies owing by the Buyer, under the contract or any other contract to The Company, have been paid in full.
The Company warrants that it will repair or make good any defects in the Products and/or Services, if written notice of the claim is received by the Company within seven (7) days from the date the Products and/or Services were delivered. No claim shall be accepted under such warranty if any attempt to repair the defective Products and/or Services is made by any person not authorised by the Company, or if the defective Products and/or Services have been modified or incorrectly stored, maintained or used. If the Company elects to repair or replace any defective Products and/or Services, such work shall be undertaken at such place as the Company may reasonably specify and the Buyer shall be responsible at its cost and risk for shipment of the defective Products and/or Services to the place specified.
The Company shall not be liable for any loss of any kind whatsoever suffered by the Buyer as a result of any breach of any of the Company's obligations under the contract, including any cancellation of the contract or any negligence on the part of the Company, its servants, agents or contractors, nor shall the Company be liable for any loss, damage or injury caused to the Buyer's servants, agents, contractors, buyers, visitors, tenants, trespassers or other persons. The Buyer shall indemnify the Company against any claim by any such person.
12. Consumer Guarantees Act 1993 (CGA)
The Buyer acknowledges that where the products and/or services supplied under these terms and conditions are supplied for business purposes in terms of sections 2 and 43 of the CGA, the provisions of the CGA do not apply whether the supply of products and/or services are made pursuant to these terms and conditions or not, nothing in these terms and conditions is intended to be inconsistent with the CGA where the CGA applies.