General Terms & Conditions of Sale




 

These terms and conditions of sale (the “Terms”) shall apply to the provision of all goods and services by Betacom (1988) Limited "the vendor" to the customer.

1. PRICES:
All prices are quoted net and unless otherwise stated, freight is additional. Ex stock prices are quoted firm for 30 days, subject to prior sale. All prices quoted are exclusive of G.S.T. (which if applicable, shall be for the customer's account).

In the case of indented equipment or "stock to arrive", prices are based on last known factory costs (or Principal's quotation), current freight, landing, exchange and duty rates, and any other rates and costs prevailing at the relevant time which affect the operations of the vendor. Any variation in these rates shall be to the customer's account.

The prices shown apply to the quantities specified. Lesser quantities may be subject to extra charges.

2. PAYMENT:
Payment for goods and services must be made in full on delivery unless the customer has applied for and, at the vendor’s discretion, been accepted for credit in which case payment shall be made by the 20th day of the month following the date of the invoice relating to those goods or services. Without limiting the foregoing the vendor may, as a condition of agreeing to provide credit to the customer, require the customer to:

(a) provide a cash payment in advance of delivery of the goods and services;
(b) provide personal guarantees as to payment;
(c) provide bank guarantees as to payment; and/or
(d) enter into an assignment of progress payments due to the customer.

Payments will not be credited until cleared.

Without prejudice to such other rights and remedies as may be available to it, the vendor shall be entitled to interest at a rate 5% above the rate its banker charges on its overdraft facility on all sums which remain unpaid after the due date.

The vendor may set off against any monies owed by the vendor to the customer any monies which the customer owes to the vendor or any of the vendor’s subsidiaries, related companies or shareholders so that the vendor’s obligation is to pay the customer the net balance only.

The customer shall pay the full amount owing to the vendor free of all deductions or rights of set off.

3. DEFAULT AND TERMINATION:
Without prejudice of any other rights the vendor may have under these Terms or at law, the vendor may terminate its agreement with the customer by giving not less than seven (7) days written notice if the customer is in breach of any of these Terms.

If the customer fails to make payment on any invoice when due, or becomes insolvent or subject to any form of insolvency administration, or any application is made to subject it to any form of insolvency administration, or the customer commits an act of bankruptcy, or a person is in a position to attempt to levy execution against the goods, or the customer makes an arrangement for the benefit of or enters into an arrangement, assignment or composition with creditors, or the customer has a receiver appointed to any part of its business or assets, or if for any reason, in the vendor’s opinion, the customer is unlikely to be able to make payment for the goods or services on the due date, the vendor may, in its sole discretion, and without prejudice to its other legal rights and remedies:

(a) treat all sums due or to become due from the customer whatsoever as immediately due and payable;
(b) terminate any purchase order by the customer;
(c) suspend further deliveries of goods to the customer and/or execution of work for the customer;
(d) withhold the further supply of goods and services on credit;
(e) repossess any goods held by the customer to which vendor has title and enter on to any premises on which the goods are stored, without notice, for this purpose;
(f) Use the goods and any property belonging to the customer which is in the vendor’s control or possession for any purpose whatsoever. Without limiting the foregoing, the vendor may use the goods and the customer’s property for the purpose of manufacturing any other goods (which shall belong to the vendor) or for the purpose of providing any services and the customer hereby authorises the vendor to sell those goods or provide those services in the vendor’s name. The vendor shall have no liability for the infringement of any intellectual property rights arising out of the exercise of the vendor’s rights under this clause and the customer shall indemnify the vendor against any claim relating to or arising from the infringement of the intellectual property rights of any other person.

The customer shall be liable for all expenses (including solicitor/client legal costs) incurred by the vendor as a result of any default by the customer under this agreement.

4. DELIVERY:
Delivery shall be effected at the place specified for this purpose by the vendor, unless otherwise agreed.

In any case the customer shall accept delivery of the goods in accordance with this agreement.

If the customer is unable to accept delivery, or if the vendor withholds delivery pending receipt of the price and any other sums agreed to be paid under this agreement, the customer shall be liable to pay to the vendor all reasonable storage charges incurred by the vendor as a result.

If a date for delivery is specified, the customer shall accept delivery of the goods on or before that date, but if the vendor is unable to make delivery on the specified date, the customer shall accept delivery on such later date as the vendor is able to make delivery.

The vendor shall use its best endeavours to ensure that delivery is effected on the specified date, but if for any cause whatsoever there is a delay in delivery of the goods, the customer shall not be entitled to rescind this agreement, nor to bring an action against the vendor for damages or otherwise.

In any case in which delivery is made outside ordinary working hours at the request of the customer and with the agreement of the vendor, the vendor may make additional charges, payable by the customer to the vendor in addition to the price and other sums agreed to be paid under this agreement.

The right to deliver the goods by instalments is reserved by the vendor and each instalment shall be deemed to be a separate contract subject to these Terms.

Should the vendor make defective delivery or, in a case of delivery by instalments, fail to deliver one or more instalments, this shall not entitle the customer to rescind this agreement. In any case in which delivery is to be effected otherwise than at the vendor's premises, and in any case where the vendor hereafter agrees to effect transportation of the goods on the customer's behalf, the customer shall be obliged to provide the following:

(a) Reasonable access, and an appropriate area for unloading the goods. The customer shall ensure that the goods are unloaded as soon as is reasonably practicable. Any delays in unloading due to the fault of the customer shall make the customer liable to the vendor for any additional handling and waiting charges incurred as a result of the delays, such charges being payable to the vendor in addition to the price and other sums agreed to be paid under this agreement.
(b) Such labour and/or mechanical means as are required to unload the goods, all costs and charges involved in doing so being payable by the customer, unless the vendor agrees to perform the unloading operation in which case such costs and charges shall be paid by the customer to the vendor in addition to the price and other sums agreed to be paid under this agreement.
(c) Reasonable notice of the time delivery is required to be made. If the vendor incurs additional costs because of deliveries being made outside ordinary working hours at the customer's request, such additional costs shall be paid by the customer to the vendor in addition to the price and other sums agreed to be paid under this agreement.
(d) Sound premises, ready and suitable in all respects to receive the goods without delay.

5. DESPATCH:
The quoted despatch details relate to the date of receipt of order and are based on the last known delivery times.

6. RETURN OF GOODS:
Indented goods cannot be returned or credited except by mutual agreement. In other cases a credit will only be issued for goods returned provided:

(a) A return materials authorisation 'RMA' request form is completed and sent to the vendor within 7 days of the customers receipt of the goods. On receipt of the request the vendor will advise the customer if this request has been accepted or not. If accepted an RMA number will be assigned to the return. The customer will also be advised at that time if a restocking charge is applicable to the return.
(b) Goods must not be dispatched until an RMA number has been issued. This number must be shown on all documentation associated with the return. Any goods received by the vendor without an appropriate RMA number will be returned to the customer at their cost.
(c) If the RMA request is accepted, the goods must be returned to the vendor within 7 days of advice of the RMA number. Freight is to be paid in advance by the customer.
(d) All goods must be returned undamaged and complete with the original packaging, all accessories, manuals and software (if applicable).
(e) Freight will not be credited.

7. RISK AND INSURANCE:
The risk of any loss or damage to the goods, howsoever caused, shall pass to the customer when the goods are delivered to the customer or into custody on the customer's behalf.

In any case of loss or damage prior to the delivery, the vendor must be advised, within twenty-four (24) hours of the damage or non-receipt, of all relevant details. If the customer fails to give notice as aforesaid, the goods shall be deemed to have been delivered and accepted, and to be in accordance with this agreement in all respects.

In any case of alleged damage, the goods shall not be moved until the vendor has been informed thereof and has had a reasonable opportunity to inspect the goods.

8. PROPERTY IN GOODS:
All title to and property in the goods is reserved to the vendor until such time as the customer has paid in full the price for those goods and all other money which the customer owes to the vendor (whether under this agreement or otherwise).

If any part of the goods shall become incorporated into or dealt with in a manner (including sub-sale) so as to lose its separate identity then the title of that proportion of goods so integrated equal in value to the contract price owed to the vendor shall be reserved and vested in the vendor until all money the customer owes to the vendor (whether under this agreement or otherwise) has been paid in full.

Until the vendor receives payment in full the customer shall hold or deal with the goods and/or the vendor’s proportion of such integrated goods for and on behalf of the vendor and in every respect as a fiduciary and agent.

Until the vendor receives payment in full the customer shall store the goods and any such integrated goods so that they are readily identifiable from the customer’s other stock by way of marking and or physical separation and shall maintain them in good condition.

The vendor shall be permitted to enter upon the customer’s premises to inspect the goods at any time.

If the goods or any part thereof are sold by the customer prior to payment having been made to the vendor then the proceeds of sale shall be held by the customer on trust for and on behalf of the vendor in a separate account.

In the event of default under this agreement the customer shall at the vendor’s request:

(a) re-deliver the goods to the vendor or do anything reasonably necessary to allow the vendor to retake possession of them (including allowing the vendor to enter onto the customer’s premises to repossess the goods); and
(b) instruct any third parties who owe money in respect of the goods to pay that money direct to the vendor; and
(c) make any records available which may assist the vendor to take the proceeds of the goods.

9. PERSONAL PROPERTY SECURITIES ACT 1999 (“PPSA”):
In this clause capitalised expressions have the meaning prescribed to them in the PPSA.

Security
The customer acknowledges and agrees that:

(a) by assenting to these Terms, the customer grants a Security Interest (by virtue of the retention of title clause in clause 8 of these Terms) to the vendor in all goods supplied by the vendor to the customer, including goods previously supplied (if any); and
(b) the terms of this clause shall apply notwithstanding anything, express or implied, to the contrary contained in the customer’s purchase order.

Financing Statement
The vendor reserves the right at its discretion to register a Financing Statement in respect of each category of goods supplied to the customer which comprises collateral. The vendor’s costs of registering a Financing Statement or a Financing Change Statement shall be paid by the customer and where applicable debited by the vendor against the customer’s account with the vendor.

The customer undertakes the following:

(a) to sign any further documents and/or provide any further information (which information the customer warrants to be complete, accurate and up-to-date in all respects) which the vendor may reasonably require to enable registration of a Financing Statement or Financing Change Statement on the Personal Property Securities Register;
(b) not to cause (directly or indirectly) the registration of a Financing Change Statement or a Change Demand in respect of the goods without the vendor’s prior written consent; and
(c) to give the vendor not less than 14 days prior written notice of any proposed change in the customer’s name and/or any other change in the customer’s details (including, but not limited to, changes in address, facsimile number, trading name or business practice).

Contracting Out and Waiver
The customer and the guarantor (if any) agree(s) that nothing in Sections 114(1)(a), 133 and 134 of the PPSA shall apply to these Terms.

To the maximum extent permitted by law the customer and the guarantor (if any) waive(s) the customers rights:

(a) under the Sections referred to in Section 107(2) (c) to (e) and (g) to (j) of the PPSA; and
(b) to receive a copy of the Verification Statement confirming registration of a Financing Statement or Financing Change Statement relating to the Security Interest created by these Terms.

10. LIENS:
The vendor shall have a contractual lien over all property of the customer in the vendor’s possession with respect to any amounts owing to the vendor by the customer irrespective of whether those amounts relate to the property in the vendor’s possession or otherwise.

Where the vendor retains a lien over any of customer’s property and the customer is more than three months overdue with any amount owing to the vendor, the vendor may without further notice, sell the property subject to the lien in such manner and on such terms as the vendor thinks fit, and may from the sale proceeds repay any amounts owing to the vendor and any expenses of sale.

11. OVERAGE:
Unless otherwise specified, the vendor has the right to deliver and charge for an over or under supply not to exceed 5% of the quantity ordered.

12. DIES, PROGRAM TAPES AND WORKING DRAWINGS:
Any dies, tools, program tapes, working drawings or other equipment made by the vendor in order to produce the goods sold shall at all times remain the property of the vendor, and any amount paid by the customer in relation to them shall be deemed to be a charge in respect of their development and use.

Unless otherwise specifically agreed with the customer, the vendor may use or dispose of this equipment as they see fit without accounting to the customer.

13. INTELLECTUAL PROPERTY:
Any technical information or designs, knowledge or processing methods at any time transmitted orally, electronically or in writing by the vendor to the customer shall remain the vendor’s property and shall be considered absolutely confidential by the customer and the customer shall not use them for any purpose nor sell, transfer or divulge them to anyone without the vendor’s written consent.

The customer warrants that the use by the vendor of any designs or instructions supplied by the customer will not infringe the patents, trade marks, designs or copyright (“intellectual property”) of any other person and the customer agrees to indemnify the vendor against any claim relating to or arising from the infringement of any intellectual property of any other person.

If at any time a claim is made against the vendor, or the vendor becomes aware that a claim is likely to be made against the vendor for infringing any intellectual property or contributing to any such infringement by the vendor or any other person as a result of supplying goods, the vendor may immediately terminate or suspend this agreement and the customer shall have no claim against the vendor in respect of such termination or suspension.

14. WARRANTY:
In any case of goods NOT manufactured by the vendor, the original customer shall be entitled to such benefits as the vendor may receive under the guarantee given to it.

In any case of goods manufactured by the vendor, the vendor, subject to the following provisions, warrants to the original customer those goods to be free from fault due to defects in design, workmanship or material for a period of one year inclusive from the date of delivery of those goods to the original customer.

No warranty applies when the goods are subjected to misuse, negligence or accident, nor does any warranty apply when the goods are subjected to alteration or repair by any person other than the vendor or a person acting under the authority of the vendor.

15. EXCLUSION OF ALL OTHER WARRANTIES:
It is expressly agreed that the above warranty is the only warranty given by the vendor, and no other warranty, representation or condition of any nature whatsoever has been given by the vendor. Any other warranties, representations or conditions which would be implied in fact or by law, trade or custom are expressly excluded.

In particular, but without limiting the generality of the foregoing, it shall be the sole responsibility of the customer to ensure that the goods are suitable for the purposes for which they are intended, and the vendor shall not be deemed to warrant that the goods are suitable for the requirements of any plans, blueprints or specifications submitted to it by the customer, or that the goods are suitable for any other requirements of the customer whatsoever.

16. CLAIMS:
Should any breach of the above warranty occur within the warranty period, the vendor's obligations shall be limited in any case of faulty goods to either the replacement or the repair without charge of such goods or the payment of damages at the option of the vendor, and in any event the sum of damages shall not be greater than the invoice value of the faulty goods.

In any case of repair or replacement, the work is to be carried out by the vendor or a person authorised by the vendor to perform the work. In such a case, if required by the vendor, the goods must be transported by the customer to and from the vendor or to and from such place as may be nominated by the vendor, the costs of such transportation to be paid by the customer in addition to the price and all other sums agreed to be paid under this agreement, and the risk of such transportation to be borne by the customer.

17. EXCLUDED LIABILITY:
Except as is expressly provided for in this document, no liability for damages whether in contract, tort or otherwise shall be borne by the vendor for any loss, damage or injury, whether that damage arises directly, indirectly, consequentially or otherwise from any breach of warranty or any breach of the vendor's obligations under this agreement.

18. INDEMNITY:
The customer shall indemnify the vendor against any claims by the customer's servants, agents or customers, or by any other persons whomsoever, in respect of any loss, damage or injury arising from the defect or non-compliance of the goods supplied by the vendor to the customer, or in respect of any other matter whatsoever.

19. CONSUMER GUARANTEES ACT 1993:
Where the vendor is supplying goods to the customer for business purposes within the meaning of the Consumer Guarantees Act 1993, the warranties conditions and guarantees in that Act shall not apply hereto, provided however that where the vendor is supplying goods to the customer for purposes other than business purposes, the provisions of the Consumer Guarantees Act 1993 shall over-ride any inconsistent provisions contained herein.

20. USE OF INFORMATION:
The customer and any guarantor (if any) authorise(s) the vendor to collect and hold personal information from any source the vendor considers appropriate to be used for the purposes of determining credit worthiness, for communicating product information by the vendor, for debt collection purposes, or for any other related purpose.

The customer and the guarantor (if any) further authorise(s) the vendor to disclose personal information held by the vendor for the purposes set out above to any other parties including the vendor’s subsidiaries, related companies, shareholders and professional advisors.

If the customer or guarantor are individuals, ie natural persons, then they have rights under the Privacy Act 1993 to access and request the correction of any personal information which the vendor holds about them.

21. WAIVER:
All the rights, powers and remedies available to the vendor are to remain in full force notwithstanding any delay or forbearance in the enforcement of those rights. The vendor shall not be deemed to have waived any condition or stipulation unless such waiver is expressly made in writing by the vendor to the customer.

22. INTERPRETATION:
This agreement between the vendor and the customer is entered into on behalf of and is intended to bind and enure to the benefit of the vendor and the vendor's successors and assigns.

In the event of a conflict of terms, the order of priority is as follows: (1) typed or handwritten provisions on the face hereof; (2) these preprinted Terms; and (3) any attachments or exhibits.

The provisions of this agreement shall be given a large and liberal interpretation in favour of the vendor, and in no case shall the contra proferentem rule apply against or to the disadvantage of the vendor.

In this agreement the term "the goods" means the goods, services, materials and substances to be supplied by the vendor to the customer under this agreement.

23. GOVERNING LAW
These Terms and Conditions shall be governed by and construed in accordance with the laws of New Zealand and shall be subject to the non-exclusive jurisdiction of the courts of New Zealand.

 


 

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