1. QUOTATION AND CONTRACT
1.1 No quotation issued by the Company shall constitute an offer or tender.
1.2 No Contract shall exist between the Company and a Purchaser until the Purchaser’s order has been accepted by the Company in writing by an approved employee of the Company in addition to the salesman, if any. By submitting an order, the Purchaser accepts these terms and conditions and, upon acceptance of the Purchaser’s order by the Company, these terms and conditions shall form part of a binding contract between the Company and the Purchaser.
1.3 At any time prior to acceptance of a Purchaser’s order the Company may without incurring any liability, revise or withdraw a quotation.
1.4 Unless previously withdrawn a quotation shall lapse after 30 days from the date thereof.
1.5 These terms and conditions do not require the Purchaser’s signature to be deemed to be binding.
1.6 The Purchaser warrants it has the power to enter into this Contract with the Company and has obtained all necessary authorisations to do so. The Purchaser further warrants it is not insolvent and accepts this Contract creates binding and valid legal obligations on it.
1.7 Where more than one Purchaser has entered into this Contract, the Purchasers shall be jointly and severally liable under this Contract.
1.8 The Company may require one or more of the representatives of the Purchaser to jointly and severally personally guarantee the Purchaser’s obligations under this Contract with the Company.
2. SPECIFICATIONS
2.1 The Company reserves the right to alter, vary or modify the specifications of Goods without notice.
2.2 The specifications supplied by the Company pursuant to the Contract shall be deemed to be the specification of the Goods current at the date of their delivery.
2.3 All drawings, brochures, catalogues, illustrations and other like material are issued by the Company by way of general description only and remain the property of the Company at all times.
2.4 No performance details, power rating, capacity, output, dimensions nor other particulars of the Goods nor of their operation (whether contained in such descriptive material or not) shall form part of this Contract or otherwise bind the Company unless included in the forming part of an official quotation issued by the Company.
3. PRICES
3.1 Unless stated otherwise, the Company’s published prices are net prices, in New Zealand dollars, for delivery of the Goods at Tauriko, Tauranga or such other place as may be agreed upon.
3.2 All prices are subject to alteration without notice.
3.3 Any cost, charges or expenses (including cost of packing) incurred by the Company incidental to the supply of Goods pursuant to this Contract shall be extra charges to be paid by the Purchaser at the time of payment of the Goods.
3.4 The Purchaser must pay goods and services tax and any other government duties, levies or taxes in respect of the Goods and/or Services.
4. LICENSES AND PERMITS
4.1 If the performance of this Contract requires a licence or other permit of any Government authority the Purchaser is responsible for obtaining such licence or permit and this Contract shall be conditional upon such licence or permit being available at the time specified by the Company and if not then available this Contract may be cancelled at the option of the Company.
4.2 The Purchaser shall be liable for any costs incurred by the Company in execution of this Contract up to its date of cancellation.
4.3 In the event of this Contract being cancelled in pursuant to the terms of this paragraph 4, then except for the Purchaser’s liability to the Company for any costs incurred by the Company in the execution of this Contract up to the date of cancellation, neither the Company nor the Purchaser shall have any claim whatsoever against the other arising out of such cancellation.
4.4 The Purchaser will undertake its best endeavours to have any necessary licence or permit issued within a reasonable time of the date of this Contract.
5. DELIVERY
5.1 Delivery of the Goods shall mean the Company delivering the Goods to the Purchaser at the Company’s Tauriko, Tauranga premises or such other place as may be agreed upon. 5.2 The Purchaser accepts responsibility for insurance and the risk in the Goods from the time of delivery of the Goods to the Purchaser pursuant to clause 5.1.
5.3 The Purchaser agrees to pay all delivery costs, if any, including if the Company delivers any order in instalments.
5.4 The Company will use all reasonable means to make delivery on the date requested by the Purchaser as indicated on the face of this order but it is understood, and the Purchaser agrees, that the Company shall have no liability whatsoever for loss or damage arising out of delivery later than the date requested.
5.5 The Purchaser shall take delivery within seven (7) days of receipt by the Purchaser of notification from the Company that the Goods specified by the Company are ready for delivery. In the event of failure of the Purchaser to take delivery of any of the specified Goods at the stipulated time and place the Purchaser shall be liable to the Company for:
(a) All charges incidental to the storage of the Goods; and
(b) Interest on the purchase price of the Goods at the rate of 15% per annum calculated from the date of delivery notification. 5.6 If, after a period of not less than 14 days from the date of delivery notification, the Purchaser has failed to take delivery of the Goods the Company shall have the right to dispose of the Goods to a third party and to recover from the Purchaser (in addition to any costs of storage and of interest as per clause 5.5):
(a) the amount, if any, by which the disposal proceeds are less than the selling price under this Contract; and
(b) any expenses, costs, or losses incurred by the Company due to the Purchaser’s non-collection.
6. TERMS OF PAYMENT AND DEFAULT Terms of payment
6.1 Unless otherwise specified, a deposit of 10% of the Contract price is required prior to work commencing.
6.2 Should manufacturing take longer than one month or fall over the end of a calendar month the Company reserves the right to require payment on a monthly basis of 75% of the value of the work completed in that month. Such claims will be payable on the 20th of the following month.
6.3 Unless prior arrangements have been made with the Company, full payment for the Goods and/or Services is due on the earlier of:
(a) Delivery of the Goods;
(b) Within seven (7) days of the Purchaser receiving notification that the Goods are ready for delivery. 6.4 The Company’s liability under this Contract shall only commence when payment has been made for the Goods and/or Services in accordance with the terms of this Contract and shall in any event be subject to the Purchaser’s other obligations to the Company under this Contract being properly observed.
6.5 Part payment of an account shall not amount to satisfaction of the whole account unless, prior to the act of making the part payment, the Company agrees in writing that part payment will be accepted in full satisfaction of the account.
6.6 The Purchaser shall not be entitled to set-off any payment it owes the Company and must make payment of all amounts owing in full.
6.7 The parties agree that this is not a Credit Contract within the meaning of the Credit Contacts and Consumer Finance Act 2003.
Default
6.8 In the event that a payment is not made by the due date or dates required under this Contract, the Purchaser is in default and the Company may, in its sole discretion:
(a) Charge default interest at the rate of 15% per annum from the date payment was due until the date payment is received.
(b) Suspend the completion of this Contract for the Purchaser but failure to do so shall not negate any other rights and/or remedies of the Company. The Company will not be liable to the Purchaser for any loss or damage the Purchaser suffers if the Company suspends its work under this clause. 6.9 Should the Purchaser default in payment or be placed in receivership, liquidation, declared bankrupt, or otherwise become insolvent in the opinion of the Company, in its sole discretion, then in addition to any other rights and/or remedies of the Company, it may demand immediate payment of all amounts then unpaid and cancel the completion of this Contract with the Purchaser.
6.10 Any cancellation or suspension under clause 6 of these terms shall not negate the Company’s claim for money due at the time of cancellation or suspension or any other rights and/or remedies the Company has against the Purchaser.
6.11 Any costs and expenses incurred by the Company in enforcing its rights under this Contract with the Purchaser, or in remedying a breach or default by the Purchaser, including debt collection agency fees, and legal fees as between solicitor and client, shall be recoverable from the Purchaser.
6.12 The Purchaser indemnifies the Company from and against all costs and expenses incurred by the Company in enforcing its rights under this Contract, including in recovering any money owing to it.
6.13 The Company may, in its sole discretion, allocate any payment received from the Purchaser towards any invoice that the Company determines and may do so at the time of receipt or at any time afterwards and on default by the Purchaser may reallocate any payments previously received and allocated.
7. TITLE AND PERSONAL PROPERTY SECURITIES ACT 1999 Title
7.1 Title in any Goods supplied by the Company passes to the Purchaser only when the Purchaser has made payment in full for all Goods and/or Services provided by the Company and all other sums due to the Company by the Purchaser on any account whatsoever regardless of whether those Goods are attached, fixed, inseparable or indistinguishable from other property at the Purchaser’s premises.
7.2 If the Goods are sold or otherwise disposed of by the Purchaser prior to payment in full having been made, the Purchaser is liable in conversion, and the proceeds of such sale or disposition shall be the property of the Company.
PERSONAL PROPERTY SECURITIES ACT 1999
7.3 The Purchaser acknowledges and agrees that this Contract creates a security agreement between the Company and the Purchaser for the purposes of the Personal Property Securities Act 1999 (“PPSA”).
7.4 The Purchaser agrees to protect the Company’s security interest as provided in this clause 7 and in performance of this obligation the Purchaser acknowledges and agrees:
(a) The Company has a specific security interest in any Goods which it has previously supplied to the Purchaser and that will be supplied in future;
(b) The Company may protect its security interest in the Goods by registering and maintaining a financing statement(s) on the Personal Property Securities Register; and
(c) To sign any documents and/or provide 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;
(d) To waive its rights under the PPSA to receive a statement of account under section 116, to receive notice of the secured party’s proposal to retain collateral under section 120, to object to the secured party’s proposal to retain collateral under section 121, to refuse permission to remove an accession under section 127, to receive notice of the removal of an accession under section 129, to apply to the Court for an order concerning the removal of an accession under section 131, and to receive a copy of any verification statement under section 148. 7.5 Subject to the provisions of the PPSA, until the Purchaser has made full payment for the Goods and/or Services, the Company shall be entitled to remove from the Customer’s premises any Goods it has supplied and any other property to which Goods are attached, fixed or in which Goods are incorporated. The Purchaser authorises the Company to enter upon the Purchaser’s premises at any time to inspect and/or recover the Goods pursuant to this clause 7.
8. CANCELLATION
8.1 If the Purchaser, for any reason, makes a request to cancel an order after its acceptance by the Company, then any such cancellation is subject to the Company’s written agreement, which may be granted or withheld in its sole discretion, and which shall include payment of the amounts referred to in clause 8.2.
8.2 If the Company accepts the Purchaser’s request for cancellation of an order then it shall be on the basis that the Purchaser pays for all costs, expenses and losses incurred by the Company up to the date of cancellation. Until payment is received by the Company in accordance with this clause, cancellation of the order shall be deemed not to have taken place.
8.3 In the event the Company’s performance of this Contract is, in whole or in part, prevented or abnormally hindered or the cost thereof abnormally increased by any cause whatsoever which is reasonably beyond the Company’s control, the Company shall have the right to cancel, without liability on its part, the entire or any portion of this Contract so affected.
9. EXPORT
9.1 This Contract shall be in respect of Goods intended for use within New Zealand (“NZ”) and the Purchaser shall not, except with the prior written consent of the Company which shall be given or withheld in its sole discretion, export or send the Goods abroad to any place or country outside NZ (whether the Purchaser retains ownership or not).
9.2 The Purchaser shall take all reasonable precautions not to sell, offer for sale, distribute or otherwise dispose of such Goods to any person, company or other entity with whom the Purchaser has reason to believe may intend to export such Goods or send them to a place or country outside NZ.
9.3 In the event of the Purchaser:
(a) exporting or sending abroad the Goods; or
(b) selling or disposing of the Goods to a third party who intends to export or send them abroad within six (6) months from the date of delivery of the Goods by the Company, then the Purchaser shall pay to the Company a sum equal to the prevailing official selling price of the Goods in that place or country outside NZ less the price paid by the Purchaser to the Company for the Goods as well as the equivalent value of any export or taxation incentive receivable as a result of the Goods being exported.
10. WARRANTY AND LIMITATION OF LIABILITY Warranty
10.1 The Company warrants that its Goods will be free of defects in materials and workmanship under the normal use and service for which they were intended when properly set up. The Company’s liability under this warranty is limited to making good at the Company’s factory any part or parts thereof which shall be returned to them with transportation prepaid, and which their examination shall disclose to their satisfaction to have been defective, provided that such parts shall be so returned to them no later than 24 months after delivery to the original Purchaser.
10.2 The warranty in clause 10.1 does not apply to: (a) any repairs or alterations made by the Purchaser, or any other party, without the Company’s written consent; and (b) Damages caused by overloading, misuse, neglect or accident; 10.3 The warranty in clause 10.1 is provided in lieu of all other warranties expressed or implied and of all other obligation or liabilities of the Company and the Company neither assumes nor authorises any other person to assume for it any other liability in connection with the sale of its Goods and/or Services.
10.4 No warranty is made in respect of Goods, or parts and/or components within Goods, manufactured by others when such items are warranted by their respective manufacturers or when they are supplied by the manufacturer on special order. The Company shall not be liable for, or bound by, any term, condition, representation or warranty given by the manufacturer of any Goods, or parts and/or components within Goods, used in the provision of its obligations under this Contract.
Limitation of liability
10.5 The Company shall not be liable for: (a) Any loss, damages, costs and/or expenses caused by Purchaser fault, error, misuse or other act or omission which causes the Goods and/or Services provided by the Company to fail, become damaged or not work as intended; (b) any loss, damages, costs and/or expenses of any kind or any delay in supplying Goods and/or Services, or any failure to perform its obligations, which are caused in whole or in part by circumstances beyond its reasonable control;
(c) any loss of profit or indirect and/or consequential loss and/or expense (whether arising under statute, contract, negligence or otherwise) suffered by the Purchaser arising out of this Contract;
(d) for any damages or losses incurred by the Purchaser if this Contract is suspended or cancelled by the Company under clause 6;
(e) any loss, damages, costs and/or expenses incurred as a result of the provision of inaccurate information by the Purchaser under clause 13. 10.6 In the event that the Company is found liable for any loss, damages, costs and/or expenses under this Contract, the Company’s liability shall be limited to the value of the Goods and/or Services provided under this Contract.
10.7 The Goods and/or Services provided under this Contract are not being acquired for personal household or domestic use or consumption, but rather they are acquired for the purposes of a business and therefore the parties agree the provisions of the Consumer Guarantees Act 1993 and the conditions, warranties and guarantees set out in the Contract and Commercial Law Act 2017 and/or implied by common law do not apply and are excluded from this Contract.
11. DISPUTES AND JURISDICTION
11.1 The Company and the Purchaser will endeavour to resolve any difference or dispute arising under this Contract between themselves by negotiation. In the event that the dispute cannot be resolved by negotiation then either party may refer such dispute to mediation. The mediator shall be agreed between the parties and his or her costs shared equally. If the parties cannot agree upon a mediator then one shall be appointed by the President of the Waikato/Bay of Plenty Law Society. In the event that the dispute cannot be resolved at mediation then either party may commence Court proceedings.
11.2 This Contract is governed by and construed in accordance with the laws of New Zealand and the parties agree to submit to the non-exclusive jurisdiction of the courts of New Zealand.
12. COST AND VENUE
12.1 If proceedings are filed in any Court by either party against the other in relation to matters arising out of this Contract, the proceedings shall be filed in the nearest appropriate Court to Tauranga.
13. ACCURACY OF INFORMATION FROM CUSTOMER
13.1 The Company shall be entitled to rely on any information provided by the Purchaser in relation to carrying out this Contract including, without limitation, timeframes, measurements, quantities, plans and specifications.
13.2 The Company shall not be liable for any loss, damages, costs and/or expenses incurred as a result of the provision of inaccurate information by the Purchaser.
14. INTELLECTUAL PROPERTY
14.1 The Company owns and/or has a right to use the copyright in all designs, drawings, specifications, documents, software, work and know-how produced by the Company in connection with the Goods and/or Services provided pursuant to this Contract (“the Company’s Intellectual Property”).
14.2 The Purchaser may only use the Company’s Intellectual Property with the Company’s consent.
14.3 Other than the use permitted under clause 14.2, the Purchaser does not acquire any right, title or interest in the Company’s Intellectual Property under this Contract.
14.3 The Purchaser acknowledges that the Company’s Intellectual Property is its confidential information and the Purchaser shall not:
(a) use the confidential information for any other purpose other than the performance of its obligations under this Contract with the Company; and
(b) copy, reproduce, make records or take extracts from confidential information; and
(c) disclose any confidential information to any third party without the express written authority of the Company.
15. PRIVACY ACT 2020
15.1 The Purchaser authorises the Company to collect, retain and use any information about the Purchaser for the purpose of assessing the Purchaser’s credit worthiness and enforcing any rights under this Contract.
15.2 The Purchaser authorises the Company to disclose any information obtained to any person for the purposes set out in clause 15.1.
15.3 Where the Purchaser is a natural person the authorities under clauses 15.1 and 15.2 are authorities or consents for the purposes of the Privacy Act 2020.
15.4 The Purchaser shall have the right to request a copy of the information held by the Company about the Purchaser and the right to request the Company to correct any incorrect information about the Purchaser.
16. FORCE MAJEURE
16.1 The Company shall not be liable for any delay, failure to perform its obligations, and/or default, under this Contract due to any act of God, terrorism, war, strike, lock out, industrial action, flood, storm, pandemic or other event beyond its reasonable control.
17. MISCELLANEOUS
17.1 No waiver by the Company in respect of any breach of this Contract shall operate as a waiver in respect of any subsequent breach.
17.2 If any clause(s) of these terms and conditions shall be declared invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining clauses shall not be affected, prejudiced or impaired.
17.3 The Company reserves the right to amend these terms and conditions at any time. The Purchaser will be deemed to have accepted such amendment if the Purchaser makes a further request to the Company to provide Goods and/or Services.
17.4 The Company may licence or sub contract all or any part of its obligations under this Contract without requiring or seeking the Customer’s consent.
17.5 Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with section 226 of the Contract and Commercial Law Act 2017 and any other relevant provisions of that Act (or its successor legislation).
18. DEFINITIONS AND INTERPRETATION
18.1 “Contract” shall mean the written agreement between the Company and the Purchaser for the supply of Goods and/or Services from the Company to the Purchaser, and shall include, without limitation, these terms and conditions.
18.2 “Delivery of the Goods” shall mean the Company delivering the Goods to the Purchaser at the Company’s Tauriko, Tauranga premises or such other place as may be agreed upon pursuant to clause 5.1.
18.3 “Purchaser” shall mean any person or entity that the Company enters into a Contract with and if there is more than one Purchaser then each person or entity is jointly and severally the Purchaser. It shall also include any person acting on behalf of and/or with the authority of the Purchaser.
18.4 “Person” includes a Company, partnership, family trust, individual or any other entity.
18.5 “Goods” may include, but without limitation, products, parts, components, machinery, equipment and/or materials to be provided by the Company in completing the Contract for the Purchaser.
18.6 “Services” shall mean the services supplied by the Company to the Purchaser in satisfying a Contract and may include, without limitation, the design and delivery of Goods, repairs, servicing and maintenance of Goods and related services.
18.7 “Company” shall mean Domett Truck & Trailer Limited, its successors and assigns or any person acting on behalf of and with the authority of Domett Truck & Trailer Limited.
18.8 Unless the context requires otherwise: 18.8.1 References to any statute, regulations or other statutory instrument or by-law shall be deemed to be references to a statute, regulations, instrument or by law of New Zealand as from time to time amended and includes substitute provisions (whether in an amendment of existing legislation or in new legislation) that substantially correspond to those referred to; 18.8.2 Where the context requires or admits, words importing the singular shall import the plural and vice versa; and 18.8.3 References to any party includes the successors and any permitted assigns of that party and party means them collectively. 18.8.4 Should there be a conflict between the terms of a sales agreement or a purchase order and these general terms and conditions clauses 1-18, the specific provisions in the sales agreement or a purchase order shall prevail over these general terms and conditions to such an extent necessary to resolve the conflict in question.
