1.1 “Seller” shall mean SOUTHERN TRAILERS and its successors and assigns.
1.2 “Buyer” shall mean the buyer or any person or Seller acting on behalf of and with the authority of the Buyer.
1.3 “Guarantor” means that person (or persons), or entity who agrees herein to be liable for the debts of the Buyer (if a limited liability company) on a principal debtor basis.
1.4 “Goods” shall have the same meaning as in section 2 of the Sale of Goods Act 1908 and are goods supplied by the Seller to the Buyer (and where the context so permits shall include any supply of Services as hereinafter defined).
1.5 “Services” shall mean all services supplied by the Seller to the Buyer and includes any advice or recommendations (and where the context so permits shall include any supply of Goods as defined in clause 1.4).
1.6 “Price” shall mean the cost of the Goods and/or Services as agreed between the Seller and the Buyer and invoiced to the Buyer subject to clause 4 of these Terms of Trade.
2.1 Any instructions received by the Seller from the Buyer for the supply of Goods/Services 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 Upon acceptance of these terms and conditions by the Buyer the terms and conditions are irrevocable and can only be rescinded in accordance with these terms and conditions or with the written consent of the managing director of the Seller.
2.2 None of the Seller’s agents or representatives are authorised to make any representations, statements, conditions or agreements not expressed by the managing director of the Seller in writing nor is the Seller bound by any such unauthorised statements.
3.1 The goods shall be as described on the invoices, quotations, work authorisations or any other work commencement forms as provided by the Seller to the Buyer.
4. Price and Payment
4.1 At the Seller’s sole discretion:
(a) The price shall be as indicated on invoices provided by the Seller to the Buyer in respect of Goods/Services supplied; or
(b) The price of the Goods/Services shall be the Seller’s quoted price which shall be binding upon the Seller provided that the Buyer shall accept the Seller’s quote within TWENTY EIGHT (28) days. PROVIDED however if there are significant price increases in the cost of the materials the Seller reserves the right to pass on to the Buyer the increase in the cost of the Goods/Services that may occur between the date of the quote and the date the Goods/Services are ordered.
4.2 Time for payment for the Goods/Services shall be of the essence and in all cases the time for payment in full will be within THIRTY (30) days of receipt of the Goods/Services by the Buyer unless alternative arrangements are made in writing between the Seller and the Buyer.
4.3 At the Seller’s sole discretion a deposit may be required. If a deposit is required by the Seller then such deposit shall be payable upon the Buyer ordering the Goods/Services from the Seller. Such deposit shall be deducted from the price of the Goods upon delivery of the Goods by the Seller to the Buyer. Where the Buyer cancels the order for the Goods prior to the delivery of those Goods, then the Seller reserves the right to retain the deposit paid by the Buyer, or deduct from the deposit an administration fee of an amount to be determined by the Seller in the circumstances before returning the balance of the deposit to the Buyer.
4.4 Payment will be made by cash, or by bank cheque, or by direct credit or any other method as agreed to between the Buyer and the Seller.
4.5 The price shall be increased by the amount of any GST and other taxes and duties which may be applicable, except to the extent that such taxes are expressly included in any quotation given by the Seller.
4.6 Notwithstanding any other provision of these Terms of Trade there shall be no obligation on the part of the Seller to extend credit to the Buyer and where the Seller does agree to extend such credit, the limit of that credit shall be agreed between the Seller and the Buyer from time to time. The Seller shall not be obliged to provide Goods and Services to the Buyer where payments due from the Buyer to the Seller together with the price of the new Goods/Services to be provided exceeds the credit limit agreed between the Seller and the Buyer.
4.7 All costs involved in the recovery of full payment or the re-possessing of the Goods will be to the Buyer’s account and will be recovered from the Buyer in addition to the price of the Goods.
5. Delivery of Goods
5.1 Subject to the express terms herein, if the Seller agrees to send the Goods/Services to the Buyer at the expense of the Buyer then delivery of the Goods/Services to a carrier, either named by the Buyer or failing such naming to a carrier at the discretion of the Seller for the purpose of delivery to the Buyer, is deemed to be a delivery of the Goods/Services to the Buyer.
5.2 The costs of carriage and any insurance which the Buyer reasonably directs the Seller to incur shall be reimbursed by the Buyer (without any set-off or other withholding whatever) and shall be due on the date for payment of the Price. The carrier shall be deemed to be the Buyer’s agent.
6.1 All risks for the Goods shall pass to the Buyer on receipt by the Seller of payment of the Goods.
6.2 If any of the Goods are damaged or destroyed prior to property in them passing to the Buyer, the Seller is entitled, without prejudice to any of its other rights or remedies under these terms and conditions (including the right to receive payment of the balance of the Price for the Goods), to receive all insurance proceeds payable in respect of the Goods. This applies whether or not the Price has become payable under these terms and conditions. The production of these terms and conditions by the Seller is sufficient evidence of the Seller’s rights to receive the insurance proceeds without the need for any person dealing with the Seller to make further enquiries. The Seller will apply the insurance proceeds as follows:
(i) first, in payment of the Price of the Goods that are damaged or destroyed, if unpaid;
(ii) second, in payment of the outstanding Price of any other Goods/Services supplied to the Buyer by the Seller whether under the terms and conditions or otherwise;
(iii) third, in payment of any other sums payable to the Seller by the Buyer on any account,
(iv) fourth, any balance is to be paid to the Buyer.
6.3 All vehicles belonging to the Buyer, which are parked or stored at the Seller’s premises or yard, or driven by the Seller or its employees as a necessary part of the supply of Goods/Services to the Buyer, shall be parked, stored or driven at the Buyer’s risk and no liability shall attach to the Seller for any damage or destruction caused to such vehicle while they are parked or stored at the Seller’s premises or yard or driven by the Seller or its employees.
7.1 The Buyer shall inspect the Goods/Services on delivery and/or installation and shall within FOURTEEN (14) days of delivery notify the Seller of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Buyer shall afford the Seller an opportunity to inspect the Goods/Services within a reasonable time following delivery. If the Buyer shall fail to comply with these provisions the Goods/Services shall be conclusively presumed to be in accordance with the terms and conditions of supply and free from any defect or damage.
8.1 Subject to the conditions of warranty set out in clause 8.2 the Seller warrants that if any defect in any workmanship of the Seller becomes apparent and is reported to the Seller within 5 years of the date of delivery (time being of the essence) then the Seller will either (at the Seller’s sole discretion) repair the defect or remedy the workmanship.
8.2 The conditions applicable to the warranty given by clause 8.1 are:
(a) The warranty shall not cover any defect or damage which may be caused or partly caused by or arise through;
(i) Failure on the part of the Buyer to properly maintain any Goods; or
(ii) Failure on the part of the Buyer to follow any instructions or guidelines provided by the Seller; or
(iii) Any use of any Goods otherwise than for any application specified on a quote or order form; or
(iv) The continued use of any Goods after any defect becomes apparent or would have become apparent to a reasonably prudent operator or user; or
(v) Tyres, wheel bearings and light bulbs are subject to normal wear and tear and as such, are not covered by any warranty;
(vi) Fair wear and tear, any accident or act of God;
(b) 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;
(c) In respect of all claims the Seller shall not be liable to compensate the Buyer for any delay in either replacing or repairing the workmanship/Goods or in properly assessing the Buyer’s claim.
8.3 For Goods not manufactured by the Seller, the warranty shall be the current warranty provide by the manufacturer of those Goods. The Seller shall not be bound by or responsible for any term, condition, representation or warranty given by the manufacturer of those Goods.
8.4 In the case of second hand Goods, the Buyer acknowledges that he has had full opportunity to inspect the same and that he accepts the same with all faults and that no warranty is given by the Seller as to the quality or suitability for any purpose and any implied warranty, statutory or otherwise, is expressly excluded. The Seller shall not be responsible for any loss or damage to the Goods, or caused by the Goods, or any part thereof however arising.
9.1 The aggregate liability of the Seller whether in contract, tort or otherwise for any loss, damage or injury arising directly or indirectly from any defect in or non-compliance of the Goods or from any other breach of the Seller’s obligations under these Terms of Trade will not in any event exceed an amount equivalent to the price invoiced by the Seller for the faulty Goods or the Goods giving rise to the claim. The Seller is not liable for any consequential injury or specific damage or loss of any kind whatsoever, or for any damages or loss caused by the Buyer’s employees, agents, customers or any other persons whatsoever. The Buyer must indemnify the Seller upon demand against any claims by the Buyer’s employees, agents, customers or other persons in respect of any loss, damage or injury arising from any defect in or non-compliance of the Goods in respect of any other matter whatsoever.
10. Replacement of Goods
10.1 If there appears to be a defect with the Goods and/or Services and they are not up to a suitable standard then the Seller at the Seller’s discretion may repair or replace the Goods and/or Services. The Buyer has TWO (2) months to notify the Seller in accordance with clause 7 above of any defect with the Goods and/or Services. The Buyer must also comply with the provisions of clause 8 above.
11. Consumer Guarantees Act 1993
11.1 These Terms of Trade are subject, in all cases, to the provisions of the Consumer Guarantees Act 1993.
12. Default and Consequences of Default
12.1 Interest on overdue invoices shall accrue from the date when payment becomes due daily until the date of payment at a rate of 2% per calendar month and shall accrue at such a rate after as well as before any judgement that may be obtained by the Seller.
12.2 If the Buyer defaults in payment of any invoice when due, the Buyer shall indemnify the Seller from and against all the Seller’s costs and disbursements including on a solicitor and client basis.
12.3 If any account remains unpaid at the end of the third month after supply of the Goods or Services the following shall apply: An immediate amount equivalent to 10% of the amount overdue levied for the Seller’s costs and administration fees which sum shall become immediately due and payable by the Buyer.
12.4 In the event that:
(a) any money payable to the Seller becomes overdue, or in the Seller’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 proposes or enters into an arrangement with creditors, or makes an assignment for the benefit or 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 the Seller shall be entitled to cancel all or any part of any order of the Buyer which remains unperformed in addition to and without prejudice to any other remedies; and all amount owing to the Seller shall, whether or not due for payment, immediately become payable.
13.1 It is the intention of the Seller and agreed by the Buyer that property in the Goods shall not pass until:
(a) The Buyer has paid all amounts owing for the particular Goods, and
(b) 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.
Where property in the Goods has not passed to the Buyer pursuant to (a) and (b) above the Goods, or proceeds of the sale of the Goods, shall be kept separate until the Seller shall have received payment and all other obligations of the Buyer are met.
13.2 It is further agreed that:
(a) The Buyer shall not deal with monies owed to the Seller in any way which may be adverse to the Seller.
(b) Until such time as property in the Goods shall pass from the Seller to the Buyer the Seller may give notice in writing to the Buyer to return the Goods or any of them to the Seller. Upon such notice the rights of the Buyer to obtain ownership or any other interest in the Goods shall cease.
(c) If the Buyer fails to return the Goods to the Seller then the Seller or it’s agent may enter upon and into land and/or premises owned, occupied or used by the Buyer, or (as the invitee of the Buyer) any premises where the Goods are situated and take possession of the Goods, without being responsible for any damage caused.
(d) The Buyer shall not charge the Goods in any way nor grant nor otherwise give any interest in the Goods while they remain the property of the Seller.
(e) The Seller may require payment of the Price or the balance of the Price due together with any other amounts due from the Buyer to the Seller arising out of these terms and conditions and the Seller may take any lawful steps to require payment of the amount due and the Price.
(f) The Seller may issue proceedings to recover the Price of the Goods sold notwithstanding that property in the goods may not have passed to the Buyer.
14. Personal Property Securities Act 1999
14.1 Upon agreeing to these terms and conditions the Buyer acknowledges and agrees that:
(a) These terms and conditions constitute a security agreement for the purposes of section 36 of the Personal Property Securities Act 1999 (“PPSA”); and
(b) 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 during the continuance of the parties’ relationship;
14.2 The Buyer undertakes to:
(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 Seller may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register (PPSR);
(b) indemnify, and upon demand reimburse, the Seller for all expenses incurred in registering a financing statement or financing charge statement on the PPSR or releasing any Goods charged thereby;
(c) not register a financing change statement or a change demand (in accordance with the PPSA) without the prior written consent of the Seller;
(d) give the Seller not less than FOURTEEN (14) days prior written notice of any proposed change in the Buyer’s name and/or any other change in the Buyer’s details (including but not limited to, changes in the Buyer’s address, facsimile number, or business practice); and
(e) immediately advise the Seller of any material change in its business practices in respect of the selling the Goods which would result in a change in the nature of proceeds derived from such sales.
14.3 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.
15. Intellectual Property
15.1 Where the Seller has designed or drawn Goods for the Buyer, then the copyright in those designs and drawings shall remain vested in the Seller, and shall only be used by the Buyer at the Seller’s discretion.
15.2 The Buyer warrants that all designs or instructions to the Seller will not cause the Seller to infringe any patent, registered design or trademark in the execution of the Buyer’s order.
16. Privacy Act
16.1 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 Buyers creditworthiness or marketing any Goods and Services provided by the Seller to any other party.
16.2 The Buyer authorises the Seller to disclose any information obtained to any person for the purposes set out in clause 15.1.
16.3 Where the Buyer is a natural person the authorities under (clause 15.1 & 15.2) are authorities or consents for the purposes of the Privacy Act 1993.
17. Buyer’s Disclaimer
17.1 The Buyer hereby disclaims any right to rescind, or cancel the contract or to sue for damages or to claim restitution arising out of any misrepresentation made to him by any servant or agent of the Seller and the Buyer acknowledges that he buys the Goods relying solely upon his own skill and judgement.
18. Unpaid Sellers Rights to Dispose of Goods
18.1 In the event that:
(a) the Seller retains possession or control of the Goods; and
(b) payment of the Price is due to the Seller; and
(c) the Seller has made demand in writing of the Buyer for payment of the Price in terms of these Terms of Trade; and
(d) the Seller has not received the Price of the Goods/Services, then, whether the property in the Goods has passed to the Buyer or has remained with the Seller, the Seller may dispose of the Goods and may claim from the Buyer any loss to the Seller on such disposal.
19. Force Majeure
19.1 The Seller is not liable for “force majeure”, which means failure or delay in supply or delivery of Goods occasioned by strike, industrial dispute, natural disaster, shortage or unavailability of stocks of products or raw materials, shortage of labour, lack of skilled labour, failure of the Seller’s suppliers, delay in transit, import restriction, legislative governmental or other prohibition or restriction, fire, flood, hostilities, commotions or other causes whatsoever beyond the Seller’s reasonable control.
20. Waiver and Forbearance
20.1 All original rights, powers, exemptions and remedies of the Seller remain in full force notwithstanding any neglect, forbearance or delay in enforcement. The Seller is not deemed to have waived any term or condition of these Terms of Trade unless the waiver is in writing signed by the managing director of the Seller.
21. Seller’s Forms
21.1 The Buyer must use the Seller’s printed forms of invoice and sales agreement (if any) and may not change the terms unless approved by the Seller.
22.1 If any provision of these terms and conditions shall be invalid, void or illegal or unenforceable the validity of existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
22.2 All Goods and Services supplied by the Seller are subject to the laws of New Zealand and the Seller takes no responsibility for changes in the law which affect the Goods or Services supplied.
22.3 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.
22.4 The Buyer shall not set off against the Price amounts due from the Seller to the Buyer.
22.5 The Seller may license or sub-contract all or any part of its rights and obligations without the Buyer’s consent.
22.6 The Seller reserves the right to review these terms and conditions at any time and from time to time. If, following any such review, there is to be any change in such terms and conditions, that change will take effect from the date on which the Seller notifies the Buyer of such change.
22.7 Should the seller not immediately enforce any of these terms & conditions then this action or omission does not in any way constitute a waiver of those terms and your obligations remain unchanged.