Terms & Conditions
WEBSITE TERMS AND CONDITIONS OF TRADE OF ACTIVE SAFETY NZ LIMITED (THE “COMPANY”)
These Terms and Conditions constitute a legally binding contract between the customer (“you”) and Active Safety (NZ) Limited (“Active Safety”) and apply to the ordering, purchase, fulfilment and delivery of goods (“Goods”) from www.activesafety.co.nz. By placing an order for Goods from Active Safety you agree to these Terms and Conditions.For the purposes of section 28B of the Fair Trading Act 1986, Active Safety is a “person in trade”. Please read the following Terms and Conditions carefully before placing your order. The Terms and Conditions contain important information about the ordering, processing, fulfilment and delivery of Goods
In these Terms and Conditions:
- “Account” means a personal account created by you on the Website;
- “Additional Delivery Charge” has the meaning given in Section 3.4;
- “Delivery Charge” has the meaning given in Section 3.3;
- “Order” means an order for Goods, placed on the Website;
- “Password” means the password needed to access your Account;
- “Website” means www.activesafety.co.nz.
- “Working Day” means any day other than Saturday, Sunday or public holiday in New Zealand.
2.YOUR LEGAL RIGHTS
Your purchase of Goods will be subject to certain laws including, without limitation, the Consumer Guarantees Act 1993 and the Fair Trading Act 1986. Nothing in these Terms and Conditions shall be read or applied so as to exclude, restrict or modify or have the effect of excluding, restricting or modifying any condition, warranty, guarantee, right or remedy implied by law (including the Consumer Guarantees Act) which cannot by law be excluded, restricted or modified.
3. PRICING & TAXES
- 3.1 Prices for Goods are as shown on the Website.
- 3.2 Active Safety reserves the right to change the prices of Goods at any time without notice to you. The price displayed at the time that you place your Order will continue to apply to you even if the price changes before your Order is accepted by Active Safety.
- 3.3 In addition to the price for the Goods, you will also need to pay the advertised Delivery Charge (if any). Any Delivery Charge will appear in your shopping cart.
- 3.4 In addition to the price for the Goods and the Delivery Charge (if any) you may also need to pay any additional delivery charges which are not shown in your shopping cart but which we incur because you live in an area where light aircraft or barge transport is required, or to which our national courier company does not provide a door-to-door service (“Additional Delivery Charge”). Such charges may apply even where the item is shown on the Website as having “free delivery”, “free freight” or something similar. If you believe that you might live in such an area, you can email Customer Service via www.activesafety.co.nz/contact-us for more information
- 3.5 By placing an Order you agree to pay the price for the Goods, any Delivery Charge and any Additional Delivery Charge.
- 3.6 All prices and Delivery Charges and Additional Delivery Charges quoted are in New Zealand dollars and are inclusive of GST.
4. YOUR ACCOUNT
- 4.1 You may not set up an Account for someone else.
- 4.2 Please ensure that you enter all information carefully when creating an Account. You warrant to Active Safety that all information provided by you in relation to your Account is complete, true and accurate
- 4.3 You must notify Active Safety immediately if you become aware of any actual or potential unauthorised use of your Password or Account.
- 4.4 Except to the extent otherwise required by law (including, without limitation, the Consumer Guarantees Act and the Fair Trading Act), Active Safety will not be liable to you, or any other person, for any loss, damage, cost or expense suffered as a direct or indirect result of: (i) your Account information being incomplete or inaccurate; or (ii) any unauthorised use of your Password or Account which takes place before you notify Active Safety, whether in contract, negligence or any other tort, equity, restitution, strict liability, under statute or otherwise at all.
- 4.5 If Active Safety suffers any loss, damage, cost or expense as a result of any unauthorised use of your Password or Account which takes place before you notify Active Safety then you must pay Active Safety the amount of that loss, damage, cost or expense if Active Safety asks you to.
- 5.1 You can place an Order by following the instructions on the Website.
- 5.2 An Order submitted by you is an offer by you to purchase the Goods for the price plus the Delivery Charge as shown at the time of submission of your Order and any applicable Additional Delivery Charge. Active Safety may accept or reject your offer in its absolute discretion.
- 5.3 Each Order that you place will, if accepted by Active Safety, be a separate and binding agreement between you and Active Safety with respect to the supply of the relevant Goods, in accordance with these Terms and Conditions.
- 5.4 Please ensure that you enter all information carefully when placing an Order. You warrant to Active Safety that all information provided by you in relation to each Order is complete, true and accurate.
- 5.5 Please check your Order carefully (including the quantities ordered) before submitting it as Orders may not be able to be changed or cancelled once the Order has been accepted by Active Safety. Active Safety will use reasonable endeavours to cancel or change the Order if it has not already been shipped but makes no representation that it will be able to do this.
- 5.6 Except to the extent otherwise required by law (including, without limitation, the Consumer Guarantees Act and the Fair Trading Act), Active Safety will not be liable to you, or any other person, for any loss, damage, cost or expense suffered as a direct or indirect result of your Order information being incomplete or inaccurate or as a result of being unable to change or cancel your Order once it has been accepted by Active Safety, whether in contract, negligence or any other tort, equity, restitution, strict liability, under statute or otherwise at all.
- 5.7 Where you place separate Orders the Goods will be delivered separately and a separate Delivery Charge (and Additional Delivery Charge if applicable) will apply to each Order. Active Safety cannot consolidate separate Orders into one delivery
- 5.8 Where you order more than one item in one Order, all Goods for which your Order is accepted at the same time will be dispatched together where practicable. However, in some cases Goods may be dispatched separately, for example: in order to ensure that you receive each of the Goods as promptly as possible; where the goods are being dispatched from different locations; or where the Goods are of different types.
- 5.9 You acknowledge that if you have purchased any Goods for business purposes (in terms of section 2 and/or section 43 of the Consumer Guarantees Act 1993), that the provisions of the Consumer Guarantees Act 1993 shall not apply to the supply of those Goods by Active Safety to you.
- 5.10 The internet can be an unstable, and sometimes insecure, marketplace. At times the facility to place Orders may not be available, your Order might not be received, your Order may be lost or misdirected, or your Order might be delayed.
- 5.11 You must take your own precautions to ensure that the process which you employ for accessing the Website does not expose you to risk of viruses, malicious computer code or other forms of interference which may damage your computer system and contains appropriate protection to prevent damage to your computer system caused by viruses, malicious computer code or other forms of interference.
- 5.12 Except to the extent otherwise required by law (including, without limitation, the Consumer Guarantees Act and the Fair Trading Act), Active Safety will not be liable to you, or any other person, for any loss, damage, cost or expense arising out of or in connection with of any of the events set out in Section 5.11 or arising out of or in connection with you accessing the Website, whether in contract, negligence or any other tort, equity, restitution, strict liability, under statute or otherwise at all.
6.AFTER YOU HAVE SUBMITTED AN ORDER / PAYMENT
- 6.1 When you submit an Order Active Safety will take a pre-authorisation from your payment method. However, actual payment is not taken at this time and is made in accordance with clause 6.4 below.
- 6.2 If Active Safety is unable to fulfil your Order we will contact you cancelling your Order as soon as practicable.
- 6.3 In the event that your Order is cancelled following the taking of the pre-authorisation, the pre-authorisation will be cancelled. The time that it takes for the pre-authorisation to be cancelled is likely to be between 1 and 10 days and will depend upon how quickly your financial institution/payment provider processes the cancellation.
- 6.4 Active Safety will process payment for your Order when your payment has passed pre-authorisation. At this time Active Safety will send you an email confirming that payment has been made and providing you with an order number. This email represents confirmation that your Order has been accepted.
- 6.5 When Active Safety accepts an Order it represents an agreement by Active Safety to supply the Goods to you in accordance with your Order subject to receiving payment from you and subject to these Terms and Conditions.
- 6.6 You must pay for Goods by credit card (Visa or Mastercard), or debit card, or (if this facility is available) by PayPal Account. The name on the credit card/debitcard must match the name on the Order. By providing your credit card/payment card you authorise Active Safety to deduct the price and the applicable delivery charge(s) from such card.
- 6.7 Active Safety reserves the right to change the payment methods that can be used for Orders at any time in its absolute discretion.
- 6.8 Active Safety may not be able to, or may decline to, accept payment from you by your nominated payment method at any time for any reason including, without limitation: (a) where our fraud detection systems detect possible irregularities; (b) because your financial institution has declined payment; or (c) because your payment card has expired. Where this is the case, your Order will be placed on hold and Active Safety will contact you to ask you to provide additional information (for example, proof of identity documents) or arrange payment by another method. If you are unable to comply with Active Safety’s requests within the timescale specified, Active Safety may cancel your Order.
- 6.9 Goods that you have ordered will not be dispatched to you until your payment for the Goods has cleared. If your payment cannot be processed, your Order will be rejected and we will notify you by email.
7. CANCELLATION OF ORDERS
- 7.1 Active Safety reserves the right to cancel, at any time before delivery and for whatever reason, an Order that it has previously accepted. Active Safety may do this for example, but without limitation, where:
(a) Active Safety’s suppliers are unable to supply Goods that they have previously promised to supply;
(b) an event beyond Active Safety’s control, such as storm, fire, flood, earthquake, terrorism, power failure,
war, strike or failure of computer systems, means that Active Safety is unable to supply the Goods within a reasonable time; (c) Goods ordered were subject to an error on the Website, for example, in relation to a description, price or image, which was not discovered prior to the Order being accepted;
(d) you ask Active Safety to cancel your Order in accordance with section 5.5; or
(e) in the circumstances set out in Section 6.8.
- 7.2 You may cancel your Order where Active Safety:
(a) has breached a material term of this Agreement;
(b) is not able to deliver your Order within a reasonable time of the estimated delivery time advertised on the Website or as set out in these Terms and Conditions, other than a result of any delay: (i) for which you are wholly or partly responsible such as a failure to provide the correct delivery address or to pay for the Goods; (ii) which was outside Active Safety’s control including the situations set out in Sections 7.1(a) and (b) above;
- 7.3 In the unlikely event of Active Safety or you cancelling your Order after payment has been processed, Active Safety will refund any money paid in respect of that Order. Section 11 of these Terms and Conditions sets out further information about refunds.
- 7.4 Except to the extent otherwise required by law (including, without limitation, the Consumer Guarantees Act and the Fair Trading Act) or as expressly set out in these terms and conditions, Active Safety will not be liable to you, or any other person, for any loss, damage, cost or expense suffered as a direct or indirect result of cancellation of your Order, whether in contract, negligence or any other tort, equity, restitution, strict liability, under statute or otherwise at all.
8. AVAILABILITY OF GOODS
- 8.1 As Active Safety is dependent upon its Suppliers to provide stock, Active Safety cannot guarantee availability at all times. You acknowledge and agree that, from time to time, certain Goods may be out of stock or unavailable. Active Safety reserves the right to withdraw or suspend from sale any Goods displayed on the Website, either temporarily or permanently, at any time without notice to you. Except to the extent otherwise required by law (including, without limitation, the Consumer Guarantees Act and the Fair Trading Act), Active Safety will not be liable to you, or any other person, for any loss, damage, cost or expense suffered as a direct or indirect result of the unavailability of any Goods at any time, whether in contract, negligence or any other tort, equity, restitution, strict liability, under statute or otherwise at all.
- 9.1 Once Active Safety has confirmed acceptance of your Order, Active Safety will endeavour to dispatch your Order within three (3) Working Days unless a different time frame is specified in relation to any particular Goods. If Active Safety is unable to dispatch your order within the timeframe specified, Active Safety will endeavour to contact you and advise you of the expected date for dispatch.
- 9.2 You may specify delivery instructions for any order (for example, you may authorise the delivery agent to leave the Goods in a specified location if you will not be at the delivery address). Active Safety will not be responsible for any Order that is delivered in accordance with your delivery instructions.
- 9.3 Risk and title in Goods passes to you on the date and time of delivery of the Goods to the delivery address provided in your Order.
- 9.4 Goods will only be delivered to addresses within New Zealand and Australia.
- 9.5 Active Safety may, in its absolute discretion, agree to accept Orders for delivery outside New Zealand but is under no obligation to do so.
- 9.6 Following dispatch of your Goods, Active Safety will email you with confirmation of dispatch and an invoice for your Order.
- 9.7 On delivery you may be required to sign a proof of delivery document. If you are not available to take delivery your Goods (and if you have not authorised Active Safety to leave the Goods at the delivery address), the Goods will be taken to a local depot or post office and a calling card containing the relevant contact details will be left at the delivery address.
- 9.8 If you require Goods that you have ordered to be re-directed to an address which is not the original Order address Active Safety may charge you a reasonable fee for doing this.
10. REFUNDS OF YOUR MONEY
- 10.1 Where Active Safety is obliged to refund your payment pursuant to these Terms and Conditions, Active Safety aims to initiate your refund within 3-5 Working Days. The additional time that it takes for you to actually receive your refund will depend upon how quickly your financial institution processes the refund.
- 10.2 Except to the extent otherwise required by law (including, without limitation, the Consumer Guarantees Act and the Fair Trading Act), Active Safety will not be liable to you, or any other person, for any loss, damage, cost or expense suffered as a direct or indirect result of any delay in you receiving any refund due to you, whether in contract, negligence or any other tort, equity, restitution, strict liability, under statute or otherwise at all.
11. RETURNS / FAULTY OR DAMAGED GOODS
- 11.1 You should check your Goods as soon as they are delivered to you in order to ensure that: (i) they are what you ordered; and (ii) they are not damaged or faulty. If this is not the case you should contact Active Safety on www.activesafety.co.nz/contact-us as soon as possible.
- 11.2 If you have a problem with any Goods or otherwise wish to return them please contact us on www.activesafety.co.nz/contact-us
- 11.3 Active Safety may, in its sole discretion, agree to you returning Goods that otherwise comply with your Order. A request to return Goods in this manner, must be made within seven (7) days of the date of shipping the Goods to you.
- 11.4 When returning Goods:
(a) please provide Active Safety with your invoice number that relates to the Goods that you are returning;
(b) please deliver the Goods to Active Safety’s store or warehouse in original condition and packaging. The Goods will remain your responsibility until they have been delivered to Active Safety, and such Goods will be delivered at you expense. Active Safety shall not be responsible for misdirected shipments or products that have been lost or damaged in transit.
(c) Active Safety may, in its sole discretion, levy a restocking fee (of up to 15% of the invoiced price) in Active Safety’s sole discretion. Active Safety shall not be obliged to accept the return of any Goods, until such restocking fee has been paid by you.
- 11.5 You are not entitled to any refund or exchange just because any packaging is damaged in transit. The packaging exists to protect the Goods themselves.
- 11.6 Any returned Goods will be paid solely at Active Safety’s discretion, and will be made in the form of the original payment method used to pay for the Goods by you. Active Safety may, in its sole discretion, deduct a restocking fee from the amount of any refund owing to you.
12. MORE INFORMATION ABOUT ACTIVE SAFETY’S LIABILITY TO YOU
- 12.1 To the full extent permitted at law, Active Safety is not liable for any loss of profit, loss of revenue, loss of business, loss of bargain, loss of savings, loss of data, loss or goodwill, loss of reputation, the cost of obtaining replacement or alternative goods or the cost of other remedial measures, or for any indirect or consequential loss arising in connection with any Order or Account.
- 14.1 Active Safety reserves the right to amend these Terms and Conditions at any time. Any amendment will take effect from the time that it appears on the Website. The Terms and Conditions which apply at the time that you place your Order are the Terms and Conditions which will apply to your Order.
- 14.2 Any provision in this agreement which is invalid or unenforceable in any jurisdiction is to be read down for the purpose of that jurisdiction, if possible, so as to be valid and enforceable, and otherwise shall be severed to the extent of the invalidity or unenforceability, without affecting the remaining provisions of this agreement or affecting the validity or enforceability of that provision in any other jurisdiction.
- 14.3 These Terms and Conditions are governed by the laws of New Zealand.
TRADE CUSTOMER: TERMS AND CONDITIONS OF TRADE OF ACTIVE SAFETY NZ LIMITED (THE “COMPANY”)
- 1. The persons signing this Credit Application and Terms and Conditions of Trade on behalf of the Customer, and the Guarantor(s) declare that to the best of their knowledge and belief, the information contained in this application and any additional material is true and correct in all respects.
- 2. The Customer confirms and accepts that any supplies made by the Company to the Customer shall be made upon the Terms and Conditions of Trade contained herein, as may be amended by notice in writing from time to time by the Company, and that those Terms and Conditions of Trade have been read and understood by or for and on behalf of the Customer.
- 3. The Customer agrees that pending payment in full for all and any Goods supplied to the Customer pursuant to these Terms and Conditions of Trade (“the Goods”), the Customer holds the Goods as fiduciary bailee and agent for the Company, and the Company shall retain ownership of the Goods or any proceeds of on-sale of the Goods.
- 4.1 The Customer will grant a security interest in the Goods supplied, in respect of which the Company may register a financing statement pursuant to the Personal Property Securities Act 1999 (“the PPSA”). In the event that payment for the Goods is not made on time, the Company may repossess and sell such Goods and/or any other Goods which have been made by using the Goods supplied, in order to satisfy any outstanding liability.
- 4.2 The Customer will, upon request by the Company, execute all documents and do all things necessary to enable the Company to create the security interest pursuant hereto.
- 4.3 The Customer/the Guarantor(s) shall:
(a) Immediately notify the Company in writing of any change in name;
(b) Provide any information the Company reasonably requires to complete a financing change statement;
(c) Waive any right to receive a copy of a verification statement under the PPSA.
- 4.4 The Customer and the Guarantor(s) agree that these Terms and Conditions of Trade constitute a Security Agreement for the purposes of the PPSA, and that they have received a copy of this Agreement.
- 4.5 The Customer agrees:
(a) that if, at any relevant time, the Company did not have priority over all other secured parties in relation to the Goods or any other personal property relating to this Agreement, then the Company shall, for the purposes of Section 109(1) of the PPSA be deemed to have contracted out of that Section;
(b) that nothing in Sections 114(1)(a) (to receive notice of sale of goods), 116 (to receive a statement of account), 119 (to recover any surplus), 120(2) (to receive notice of proposal to take goods), 133 (to reinstate Security Agreement) and 134 (limit on reinstatement) of the PPSA will apply to this Agreement or the Company’s security interest;
(c) to waive all its rights under Sections 121 (to object to proposal), 125 (damage to goods on removing accession), 129 (notice of removal of accession), 131 (court order preventing removal of accession) and 132 (redemption of collateral) of the PPSA; and
(d) to waive its right to receive a copy of the Verification Statement confirming registration of a Financing Statement or Financing Change Statement relating to the Company’s security interest.
4.6 The Customer shall not permit any security interest (other than the Company’s security interest) to attach to the goods.
- 5.1 The provisions of the Consumer Guarantees Act 1993 shall not apply to any supply of Goods by the Company to the Customer for business purposes in terms of Section 2 and/or Section 43 of the Consumer Guarantees Act 1993.
- 5.2 The Company does not provide any guarantees or warranties EXCEPT as expressly confirmed by the Company in writing.
- 6.1 Personal information of whatsoever nature and in respect of whomsoever collected by or held by the Company (whether by virtue of this application or otherwise) is provided and may be held, used and disclosed to enable the Company to process this or any other application, to ascertain at any time the credit worthiness of the Customer, and to obtain (at any time) credit reports, character references or credit statements to administer the Customer’s trade account with the Company, to enable the Company to notify and credit or reference agent of applications for credit, or in the event of any default on the part of the Customer, to enable the Company, to provide to the Customer information concerning products and services, to enable the Company to sell or assign for any purposes any obligation/debt the Customer has to the Company, and to enable the Company to communicate with the Customer/the Guarantor(s).
- 6.2 The Customer, and the Guarantor(s), authorise the Company to obtain, at any time from any person or entity, whatsoever any information the Company may require to process and/or accept and/or maintain any credit application or trade account which the Customer may make or have with the Company or to perform or complete any of the other purposes for which information has been provided to the Company by the Customer/the Guarantor(s). The Customer and/or the Guarantor(s) hereby authorise any such person to release to the Company any information which that person holds concerning the Customer/the Guarantor(s).
- 7. For the purposes of this application and these Terms and Conditions of Trade, the “Goods” shall include any goods, services, information, designs, printed or electronic material provided to the Customer by the Company of whatsoever nature.
- 8. All prices quoted are exclusive of, but subject to, Goods and Services Tax (“GST”). Goods supplied will be charged at the prices applicable at the time of dispatch of Goods. Prices quoted in the Company’s price list are the latest available prices at the time of printing of the price list, but are subject to amendment without prior notice by the Company, and at the Company’s sole discretion. Unless otherwise agreed, prices are exclusive of freight, taxes, insurance or duties, which, if chargeable, are payable by the Customer.
- 9.1(a) The Company shall not be obliged to accept any order from the Customer. The Company may, in it’s sole discretion, require the Customer to pay a deposit prior to the Customer taking possession of the Goods, if the Company so requires. Likewise, the Company shall not be obliged to accept any variation to the quantity of the Goods ordered by the Customer. The Customer agrees that if such variation is consented to by the Company, the Company has the right to vary the per-unit charge for the Goods, and may request a further deposit at the aforementioned rate.
(b) The Customer shall make payment of the purchase price, plus GST, and any charges for freight, taxes, insurance or duties indicated on any invoice, order form, or other similar documentation issued by the Company, on or before the 20th day of the month immediately following the date of such invoice. The Customer shall have no right to set-off against the price any claims which the Customer might have against the Company.
(c) Orders may be varied only if written consent to the variation has been given by the Company.
(d) Orders may be cancelled only if written consent to the variation has been given by the Company (in its sole discretion). If the Company agrees to any order being cancelled, the Company shall be entitled to charge a handling fee of up to 10% of the price that the Customer would have otherwise paid for the Goods.
- 9.2 Where the Customer wishes to return any Goods for any reason, the Customer must apply in writing to the Company within 14 days from the date of delivery, for the Company’s written consent to the return of the Goods, failing which, the Customer shall be conclusively deemed to have accepted the Goods and the Company shall not incur any subsequent liability whatsoever.
- 9.3 If the Company gives its written consent for the return of Goods, the Goods shall be returned TOGETHER WITH a credit claim, which quotes: the Company’s invoice number, the date of delivery of those Goods, the name of the Company representative who approved the return and the reason for the return. The Company reserves the right to charge a fee of 15% of the purchase price for restocking the Goods.
- 9.4 The Company may, at its own discretion entirely:
(a) Give credit for Goods which have been correctly returned, in the same condition and packaging in which they were dispatched (subject to a charge for reasonable costs where Goods were ordered incorrectly).
(b) Subject to any express warranty given by the Company, repair any damaged or defective Goods or make a reasonable allowance on the purchase of replacement Goods.
- 9.5 In the event that the above provisions are not strictly complied with, the Company will return such Goods to the Customer at the Customer’s expense.
- 10.1 In the event that payment is not made, in full, in accordance with the provisions of clause 9.1, interest shall accrue and be payable by the Customer to the Company at a rate equivalent to the Company’s bank’s unsecured commercial overdraft facility base lending rate PLUS a margin of 5% per annum (or a rate equivalent to the rate payable on Judgments obtained in the District Courts of New Zealand as may from time to time be provided for by statute), such interest accruing at a daily rate from and including the date immediately following the due date for payment, until and including the date upon which all outstanding amounts are paid (including interest). The charging of interest by the Company does not extend the time for payment of the purchase price (plus interest) nor imply any forbearance to recover overdue moneys. For as long as any payment is overdue to the Company by the Customer, the Company is entitled to suspend or terminate the supply of Goods to the Customer, and the Company shall not be responsible for any loss or damage suffered by the Customer as a result of the exercise of such rights.
- 10.2 Payments by the Customer shall be apportioned by the Company to outstanding accounts in such amounts and in such order as the Company may determine in its sole discretion.
- 10.3 In the event that the above provisions are not strictly complied with, the Company will return such Goods to the Customer at the Customer’s expense.
- 11.1 Notwithstanding any other provision of these Terms and Conditions of Trade, or the law, risk in the Goods shall pass from the Company to the Customer when the Goods leave the Company’s premises.
- 11.2 Property and title in the Goods (including where the Goods have been incorporated into other goods but remain distinct and separately identifiable) shall remain with the Company and shall only pass from the Company to the Customer when the Customer / the Guarantor(s) have discharged all outstanding indebtedness to the Company.
- 11.3 If the Customer fails or refuses to take delivery of the Goods (except for refusal of damaged shipments from any carrier), then the Goods shall be deemed to have been delivered to the Customer.
- 11.4 Any estimate of time of delivery given by the Company to the Customer is an estimate only, and the Company shall not be bound by such estimates.
- 11.5 The Company shall be entitled to select their own mode of delivery for the Goods. If the Customer requests a specific mode of delivery and the Company consents to delivery in this manner, the Customer shall pay for the cost of such delivery.
- 11.6 The Customer must check all goods on receipt for compliance with quoted quantity, damage or failure to comply with any quotation or description agreed in writing by the Company. The Customer must refuse visibly damaged packaging and any shortages must be endorsed on the Carrier’s note. The Customer must report in writing to the Company and the relevant Carrier, the shortage or defect of the goods within 7 days from the date of delivery (or expected date of arrival if goods are not received) and provide reasonable opportunity to take all necessary steps to investigate the claim. If the Customer fails to notify the Company of any issue within 7 days, the Company may reject any subsequent claims in respect of such goods. If the Customer receives Goods which do not conform to any description or quotation, the Customer must contact the Company within 7 days of receipt of the Goods and complete the required return request. The Company’s liability for any claim is limited to providing enough Goods to make up for the shortfall/replacement or issuing a refund or credit for the shortfall.
- 11.7 If the Customer sells Goods before discharging its indebtedness to the Company, the Customer will be deemed to have done so as agent for the Company and the proceeds of such sale shall be the property of the Company. The Customer shall hold the proceeds on Trust for the Company in a separate account and repay such amount immediately if required by the Company.
- 11.8 The Customer will not change the physical appearance of the Goods, nor shall the customer incorporate the Goods into or with other Goods, without the prior written consent of the Company.
- 12.1 In the event of any default by the Customer of these Terms and Conditions of Trade, in addition to any other right or remedy available to the Company pursuant to these Terms and Conditions of Trade, or at general law, the Company shall be entitled to enter on and into any premises or property occupied by the Customer or any property on which the Goods are stored or held, to inspect, search for, and remove the Goods supplied, and the Company shall not be liable to the Customer or any third party for any damage of any kind whatsoever which may result from the exercise of its rights under this clause. The Company shall be entitled (but not obliged) to resell the Goods on commercially reasonable terms and apply the proceeds derived in or towards the payment of any amount due and payable by the Customer to the Company, and all costs and expenses of or incurred by the Company as a result of and incidental to such action.
- 12.2 Where the Customer is in default, the Company may, in addition to any other rights contained in these Terms and Conditions of Trade or at general law, appoint a receiver in respect of the Goods.
- 12.3 The Customer shall pay to the Company all and any costs incurred by the Company in the actual or attempted enforcement of these Terms and Conditions of Trade (including but not limited to debt collection costs and legal costs and disbursements on a solicitor/client basis).
- 12.4 In the event that the Customer becomes insolvent, commits an act of bankruptcy, goes into liquidation, or enters into a compromise with its creditors, or has its credit standing impaired in any other way, the Company shall be entitled to cancel all or any part of any order of the Customer that remains unperformed and all amounts owing to the Company shall, whether or not due for payment, become immediately payable.
- 13. The liability of the Company to the Customer in respect of the Goods shall be limited, at all times, to the purchase price of the Goods in respect of which such liability arises and no warranty or condition shall be implied against the Company by any statute, at common law, or otherwise.
- 14. The Company shall not be liable for any delay in production or delivery of Goods directly or indirectly caused by acts of God, fire, riot, war, acts of terrorism, embargo, strike, labour dispute, theft, delays in delivery by sub-supplier, action or interference by any government or other authority or any other occurrence beyond the reasonable control of the Company.
- 15. These terms and conditions of trade shall be governed by and construed in all respects in accordance with New Zealand Law.
- 16. If any provision hereof is held to be invalid or unenforceable, the invalidity or unenforceability shall be deemed eliminated or modified to the minimum possible extent to make the remainder of these Terms and Conditions of Trade enforceable.
- 17. Failure by the Company to insist upon strict performance by the Customer of any of these Terms and Conditions of Trade shall not be a waiver of any rights of the Company on any subsequent occasion.
- 18. The Guarantor(s) hereby acknowledge that:
(a) To the greatest extent possible, they hereby guarantee to the Company the due performance of the Customer pursuant to these Terms and Conditions of Trade, and indemnify the Company against any loss the Company may suffer as a result of the default of the Customer.
(b) No release, delay or other indulgence given by the Company to the Customer or to the Customer’s successors or assigns or any other thing whereby the Guarantor(s) would have been released had the Guarantor(s) been merely a surety, shall release prejudice or affect the liability of the Guarantor(s) as a Guarantor or as indemnifier.
(c) As between the Guarantor(s) and the Company, the Guarantor(s) may for all purposes be treated as the Customer and the Company shall be under no obligation to take proceedings against the Customer before taking proceedings against the Guarantor(s).
(d) The Guarantee herein is for the benefit of and may be enforced by any person entitled for the time being to receive or act on the part of the Company.
(e) Should there be more than one Guarantor, their liability under this Guarantee shall be joint and several.