Trading Terms and Conditions For Sale of Goods
These Trading Terms & Conditions (“Terms”) apply (unless otherwise previously agreed in writing) to the supply of Goods by the Company to a Customer from time to time. Any supply of Goods by the Company to the Customer made after the date of acceptance of these Terms is a supply pursuant to the supply agreement constituted by these Terms and the relevant order accepted by the Company and any such supply does not give rise to a new or separate agreement.
In these terms unless the contrary intention appears: “Additional Charges” includes all delivery, handling and storage charges, goods and services tax, stamp duty, interest, legal and other costs of recovery of unpaid money and all other government imposts and all money, other than the Purchase Price, payable by the Customer to Zenitec arising out of the sale of the Goods.
“Customer” means the person to or for whom the Goods are to be supplied by Zenitec.
“Goods” means the goods sold to the Customer by Zenitec and includes any services provided by Zenitec to Customer.
“Zenitec” means Zenitec Holdings Limited NZ Co No: 1760661 of 137 Ettrick Street, Appleby, Invercargill, 9812 New Zealand.
“PPSA” means the Personal Property Securities Act 2009 (Cth).
“Purchase Price” means the list price for the goods as charged by Zenitec at the date of delivery or such other price as may be agreed by Zenitec and the Customer prior to delivery of the Goods.
2. Order for Goods
2.1. An order given to Zenitec is binding on Zenitec and the Customer, if:
2.1.1 a written acceptance is signed for or on behalf of Zenitec; or
2.1.2 the Goods are supplied by Zenitec in accordance with the
2.2. An acceptance of the order by Zenitec is then to be an acceptance of these Terms by Zenitec and the Customer and these Terms will override any conditions contained in the Customer’s order. Zenitec reserves the right to accept a part only of any order by notifying the Customer in writing or by delivering the Goods to the Customer. No
order is binding on Zenitec until accepted by it.
2.3. An order which has been accepted in whole or in part by Zenitec cannot be cancelled by the Customer without obtaining the prior written approval of Zenitec, which it may refuse in its absolute discretion.
3.1. Zenitec liability is limited, to the extent permissible by law and at Zenitec Holdings Limited’s option, to;
3.1.1 in relation to the Goods:
i the replacement of the products or the supply of equivalent products
ii the repair of the products
iii the payment of the cost of replacing the products or of acquiring equivalent products; or
iv The payment of the cost of having the products repaired
3.1.2 Where the Goods are services:
i the supply of service again; or
ii the payment of the cost of having the services supplied again.
3.2. Any claims to be made against Zenitec for short delivery of Goods must be lodged with Zenitec in writing within 7 days of the delivery date.
3.3. To the extent permitted at law, all other warranties whether implied or otherwise, not set out in these Terms are excluded and Zenitec is not liable in contract, tort (including, without limitation, negligence or breach of statutory duty) or otherwise to compensate Customer for:
3.3.1 any increased costs or expenses;
3.3.2 any loss of profit, revenue, business, contracts or anticipated savings;
3.3.3 any loss or expense resulting from a claim by a third party;
3.3.4 any special, indirect or consequential loss or damage of any nature whatsoever caused by Zenitec’s failure to complete or delay in completing the order to deliver the Goods.
4.1. The times quoted for delivery are estimates only and Zenitec accepts no liability for failure or delay in delivery of Goods. The Customer is not relieved of any obligation to accept or pay for Goods by reason of any delay in delivery. Goods may be delivered by instalments at the discretion of Zenitec.
4.2. Risk in accepting the Goods passes on delivery to the Customer.
4.3. Goods are supplied ‘DDP’ (Delivered, duty paid) on orders over USD$500.
4.4. All Additional Charges are payable by the Customer in addition to the Purchase Price of the Goods.
4.5. Where the Order makes provision for delivery then delivery shall take place at the place stated in the Order. If no place is indicated then delivery shall be made at the physical address of the Customer set out in the application.
5.1. Return of Goods will not be accepted by Zenitec except by prior agreement in writing with Zenitec. Any Goods returned will be subject to a restocking charge of 10% of the Purchase Price of those Goods.
5.2. The Customer shall meet all freight costs for any returns.
6. Price and Payment
6.1. Prices are subject to change without notice. All Orders will be charged at prices prevailing at the date of delivery of the Goods.
6.2. The Customer must pay the Purchase Price and the Additional Charges to Zenitec.
6.3. If the Customer is in default, Zenitec may at its option withhold further deliveries or cancel a contract without prejudice to any of its existing rights.
6.4. All payments are due on the 30 days EOM of supply. Interest is charged at the rate of 2.5% per month or part of a month from the expiry of that period until the date payment is received by Zenitec.
6.5. All amounts payable by the Customer under these Terms must be paid without set-off or counter claim of any kind.
7. Errors or Omissions
7.1. Clerical errors or omissions, whether in computation or otherwise in the quotation, acknowledgement or invoice shall be subject to correction.
8. Retention of Title
8.1. Ownership, title and property in the Goods and in the proceeds of sale of those Goods remains with Zenitec until payment in full for the Goods and all sums due and owing by the Customer to Zenitec on any account has been made. Until the date of payment:
8.1.1 the Customer has the right to sell the Goods in the ordinary course of business;
8.1.2 until the Goods have been sold by the Customer in the ordinary course of the Customer’s business, the Customer holds the Goods as bailee for Zenitec;
8.1.3 the Goods are always at the risk of the Customer.
8.2. The Customer is deemed to be in default immediately upon the happening of any of the following events:
8.2.1 if any payment to Zenitec is not made promptly before the due date for payment;
8.2.2 if the Customer ceases to carry on business or stops or suspends payment or states its intention of so doing or is unable to pay its debts as they fall due or if any cheque or bill of exchange drawn by the Customer payable to Zenitec is dishonoured;
8.3. In the event of a default by the Customer, then without prejudice to any other rights which Zenitec may have at law or under this agreement:
8.3.1 Zenitec or its agents may without notice to the Customer enter the Customer’s premises or any premises under the control of the Customer for the purposes of recovering the Goods.
8.3.2 Zenitec may recover and resell the Goods;
8.3.3 if the Goods cannot be distinguished from similar Goods which the Customer has or claims to have paid for in full, Zenitec may in its absolute discretion seize all goods matching the description of the Goods and hold same for a reasonable period so that the respective claims of Zenitec and the Customer may be ascertained. Zenitec must promptly return to the Customer any goods the property of the Customer and Zenitec is in no way liable or responsible for any loss or damage to the Goods or for any loss, damage or destruction to the Customer’s business howsoever arising from the seizure of the Goods.
8.3.4 In the event that the Customer uses the Goods in some manufacturing or construction process of its own or some third party, then the Customer must hold such part of the proceeds of sale of such manufacturing or construction process as relates to the Goods in trust for Zenitec. Such part will be an amount equal in dollar terms to the amount owing by the Customer to the Zenitec at the time of the receipt of such proceeds. The Customer will pay Zenitec such funds held in trust upon the demand of Zenitec.
8.4. Separately, Customer hereby charges all its right, title and interest to and in the proceeds of sale of the Collateral as original collateral, or any of it, in favour of the Zenitec.
9.1. Defined terms in this clause have the same meaning as given to them in the PPSA.
9.2. Company and the Customer acknowledge that these Terms constitute
a Security Agreement and entitle Zenitec to claim:
9.2.1 a Purchase Money Security Interest (“PMSI”) in favour of Zenitec over the Collateral supplied or to be supplied to the Customer as Grantor pursuant to these Terms; and
9.2.2 a security interest over the proceeds of sale of the Collateral referred to in 9.2.1 as original collateral.
9.3. The goods supplied or to be supplied under these Terms fall within the PPSA classification of ”Other Goods” acquired by the Customer pursuant to these Terms.
9.4. The Proceeds of sale of the Collateral referred to in clause 8.2(a) falls within the PPSA classification of “Account”.
9.5. Zenitec and the Customer acknowledge that Zenitec, as Secured Party, is entitled to register its Security Interest in the Collateral supplied or to be supplied to Customer pursuant to these Terms and in the relevant Proceeds.
9.6. To the extent permissible at law, the Customer:
9.6.1 waives its right to receive notification of or a copy of any Verification Statement confirming registration of a Financing Statement or a Financing Change Statement relating to a Security Interest granted by the Customer to Company.
9.6.2 agrees to indemnify Zenitec on demand for all costs and expenses, including legal costs and expenses on a solicitor / client basis, associated with the;
184.108.40.206 registration or amendment or discharge of any Financing Statement registered by or on behalf of Company; and
220.127.116.11 enforcement or attempted enforcement of any Security Interest granted to Zenitec by the Customer;
9.6.3 agrees that nothing in sections 130 and 143 of the PPSA will apply to these Terms or the Security under these Terms;
9.6.4 agrees to waive its right to do any of the following under the PPSA:
18.104.22.168 receive notice of removal of an Accession under section 95;
22.214.171.124 receive notice of an intention to seize Collateral under section 123;
126.96.36.199 object to the purchase of the Collateral by the Secured Party under section 129;
188.8.131.52 receive notice of disposal of Collateral under section 130;
184.108.40.206 receive a Statement of Account if there is no disposal under section 132(4);
220.127.116.11 receive a Statement of Account under section 132(3)(d) following a disposal showing the amounts paid to other Secured Parties and whether Security Interests held by other Secured Parties have been discharged.
18.104.22.168 receive notice of retention of Collateral under section 135;
22.214.171.124 redeem the Collateral under section 142; and
126.96.36.199 reinstate the Security Agreement under section 143.
9.6.5 All payments received from the Customer must be applied in accordance with section 14(6)(c) of the PPSA.
The Customer agrees that upon the on-sale of any Goods to third parties, it will:
10.1.1 inform any third party involved of these Terms;
10.1.2 inform any third party of the Company’s product warranties if any; and
10.1.3 not make any misrepresentations to third parties about the Goods.
To the full extent permitted by law, Customer will indemnify Zenitec and keep Zenitec indemnified from and against any liability and any loss or damage Zenitec may sustain, as a result of any breach, act or omission, arising directly or indirectly from or in connection with any breach of any of these Terms by Customer or its representatives.
12.1. These Terms are to be construed in accordance with the laws from time to time in New Zealand. The parties submit to the nonexclusive jurisdiction of the Courts of New Zealand in connection with these Terms.
12.2. These Terms contain all of the terms and conditions of the contract between the parties and may only be varied by agreement in writing
between the parties.
12.3. Any conditions found to be void, unenforceable or illegal may, to that extent be severed from the Agreement.
12.4. No waiver of any of these Terms or failure to exercise a right or remedy by Zenitec will be considered to imply or constitute a further waiver by Zenitec of the same or any other term, condition, right or remedy.
13. Copyright And Intellectual Property
13.1. Unless it is specifically agreed in writing to the contrary, the Vendor retains all intellectual property rights, including copyright, patents, registered designs, and all protection of confidential information in respect of any Goods provided by the Vendor for/to the Customer.
13.2. The Customer will at all times keep the Vendor advised of any infringement or potential infringement by a third party of the Vendor's intellectual property rights.
13.3. The Customer will immediately advise the Vendor of any alleged infringement by the Vendor of a third party's intellectual property rights. The Customer will indemnify and hold harmless the Vendor against any losses, costs, actions or liabilities suffered or incurred as a consequence of such infringement or alleged infringement.
13.4. The Vendor owns and has copyright in all designs, specifications, documents, and software produced by the Vendor in connection with the Goods provided pursuant to these terms and conditions of trade and the client may use the Goods only if paid for in full and for the purpose for which they were intended and supplied by the Vendor.
14. Suitability of Goods
14.1. The Customer must satisfy itself that the Goods as ordered are fit and suitable for the purpose for which they are required. The Vendor makes no warranties or representation and expressly negates any implied or expressed condition that the Goods will be suitable for a
particular purpose or use for which the Customer may use them. The Customer accepts all risk and responsibility for consequences arising from the use of the Goods whether singularly or in combination with other Goods.
15. Dimensions and Specifications
15.1. Dimensions and specifications contained or referred to in any Order, catalogues, brochure or other publications maintained or issued by the Vendor are estimates only.
15.2. Unless otherwise expressly agreed in writing, it is not a condition of these Terms and Conditions of Trade or any Order that the Goods and Services will correspond precisely with such dimensions and specifications and customary tolerances or in the absence of customary tolerances, reasonable tolerances shall be allowed.
16.1. In the event of any dispute arising between the Vendor and the Customer, such dispute shall in the first instance be referred to mediation for resolution.
16.2. In the event that resolution by mediation is not achieved to the satisfaction of both parties within 30 days of referral to mediation, either party may then take legal action to resolve the dispute.
16.3. Nothing in this clause prevents the Vendor from taking legal action to enforce payment of any debt due, nor where required to seek interlocutory or injunctive relief.