New Zealand Terms and Conditions of Sale:
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GENERAL
1.
In these conditions:
(a)
buyer means the buyer of
any goods or services from the seller and includes any executor,
administrator or permitted assign;
(b)
CGA means the Consumer
Guarantees Act 1993;
(c)
conditions means these
terms and conditions and, as the context requires, each contract entered
into between the buyer and the seller for the supply of goods or services
and each invoice issued by the seller to the buyer for goods or services
into which these conditions are incorporated;
(d)
GST means goods and
services tax chargeable or for which a person is liable under the Goods and
Services Tax Act 1985.
(e)
goods means all goods
supplied by the seller to the buyer under these conditions now and at any
time in the future including (but not limited to) activated carbon,
anthracite and chemical products;
(f)
seller means Activated
Carbon Technologies Limited.
(g)
services means all services
performed by the seller for the buyer.
2.
Unless otherwise required
or agreed in writing by the seller, all goods or services supplied by the
seller will be supplied on these conditions only and these conditions shall
take precedence over any other terms of supply.
3.
References to legislation
include as amended, re-enacted or substituted and any statutory instruments,
regulations and orders issued under such legislation.
PRICE
4.
Subject to any other
arrangement between the seller and the buyer, the price payable by the buyer
for any goods or services shall be the price determined by the seller on the
date of despatch of the relevant goods and set out on the order
confirmation, invoice or similar document issued by the seller at or
following that time. The price does not include any GST, which is to be paid
by the buyer in addition to the price.
PAYMENT
5.
Payment of the price and
GST is due to the seller on terms agreed between the seller and the buyer.
In the absence of any such agreement, payment of any amount due to the
seller will be made on the 20th day of the month following the date of the
invoice.
6.
The buyer may not deduct or
withhold any amount (whether by way of set-off, counterclaim, retention or
otherwise) from any money owing to the seller.
7.
If the seller does not
receive payment of any statement of charges on the due date for payment
specified in clauses 5 and 6 above, the seller may, at its sole discretion
and without prejudice to any other rights or remedies available to it, do
any or all of the following:
(a)
charge interest on the
overdue balance at the rate of three percent (3%) per annum above the
current commercial overdraft rate charged by Westpac New Zealand. Interest
will be charged on a daily basis from the due date until all monies,
including interest, have been paid in full.
(b)
In addition, all costs
incurred by the seller, including legal costs, administrative time and
collection agency fees in recovering or attempting to recover the balances
due (including any Late Payment Fees and interest) will be payable by the
buyer. The seller reserves the right to pass details of any account to an
outside agency for the purposes of collection of the debt.
SUPPLY
8.
The seller will endeavour
to meet agreed delivery dates, but will not be held liable, nor may the
buyer cancel any order or any part of any order, for late delivery. The
seller reserves the right to cancel or suspend unconditionally and without
liability any contract and/or to reject any order.
9.
Unless otherwise agreed in
writing by the seller, the buyer will be responsible for arranging the
carriage of goods, and delivery of any particular goods will be deemed to
have been made when those goods are available for collection from the
collection point as agreed with the buyer, or in the absence of agreement,
as specified by the seller.
10.
Where the seller agrees to
arrange the carriage of goods:
(a)
unless otherwise expressly
stated in writing by the seller, prices estimated or quoted will not include
the cost of delivery or insurance and the buyer will be invoiced for any
charges incurred by the seller in carriage of goods;
(b)
delivery will be deemed to
have been made when the goods arrive at the delivery point agreed with the
buyer;
(c)
if the buyer or its
authorised agent is not present at the delivery point when the goods are
delivered, delivery will be deemed to have been effected in any event;
(d)
the buyer is responsible
for ensuring, at its own cost, that all agreed delivery sites have unloading
facilities together with labour and/or mechanical means to unload the goods
promptly and suitable access and area for unloading and shall indemnify the
seller against any loss, liability, costs or expenses incurred by the seller
or its agents in unloading the goods;
(e)
any claim for goods damaged
during unloading or damaged or lost in transit must be made to the seller
within 24 hours of delivery;
(f)
where any quotation or
estimate given to the buyer includes the cost of delivery, the price quoted
or estimated will cover only the usual methods of transportation used by the
seller;
(g)
delivery may be by
instalments and each instalment will be treated as a separate contract under
these conditions; and
(h)
if the buyer fails to take
delivery of any goods at an agreed delivery time, the seller may (without
limiting any other right the seller may have) charge the buyer for any
waiting time for delays by the buyer in unloading goods, handling charges
for any unloading work carried out by the seller, expenses for the storage,
transportation or disposal of the goods and any other additional expenses
incurred in relation to the goods.
RISK AND INSURANCE
11.
Goods supplied by the
seller to the buyer will be at the buyer’s risk immediately on delivery in
accordance with clauses 9, 10(b) or (c).
12.
The buyer must insure and
keep insured with a reputable insurance company all goods in its possession
or control for their full replacement value from the time of delivery until
ownership passes to the buyer, in accordance with clause 13, against risk of
loss or damage by hazards normally insured against.
PROPERTY
13.
Ownership of the goods
supplied by the seller to the buyer will not pass to the buyer until the
seller has received in cash or cleared funds all amounts owing in respect of
the goods.
EXCLUSION OF LIABILITY
14.
Any technical advice
provided by the seller is given in good faith but without any liability or
responsibility on the part of the seller and the seller is not liable for
any loss, costs, expenses or other damages suffered by the buyer, whether
direct or indirect, as a result of the buyer’s reliance on any technical
advice or any aspect of it provided by the seller. It is the buyer’s
obligation to test goods supplied by the seller as to their suitability for
the intended purpose and use. The application and use of the goods is beyond
the seller’s control and therefore entirely the buyer’s responsibility.
Except for any express warranties or guarantees agreed in writing (but not
by email) by the seller, including (but not limited to) pursuant to this
clause 14, and any guarantees that cannot be excluded by virtue of law, all
warranties, descriptions, representations or conditions whether implied by
law, trade, custom or otherwise, are expressly excluded to the fullest
extent permitted by law. The buyer declares that it is acquiring goods or
services for the purpose of a business, and accordingly it is agreed that
the guarantees implied by the CGA are expressly excluded.
15.
In any event, the total
liability of the seller whether in tort (including negligence), contract or
otherwise for any loss, damage or injury arising directly or indirectly from
any defect in goods or services supplied by the seller, any other breach of
the seller’s obligations or otherwise under these conditions shall be
limited, at the seller’s option, except where statute expressly requires
otherwise, to the lesser of the sale price of the goods or services
complained of, the cost of replacing the defective goods or services or the
actual loss or damage suffered by the buyer and in no circumstances will the
seller be liable for any consequential, indirect or special damage,
(including loss of profits), loss, costs or injury of any kind suffered by
the buyer or any other person.
CLAIMS
16.
Except where statute
expressly requires otherwise:
(a)
any claim to reject the goods or to claim damages on the grounds that the
goods do not conform to the description by which they were sold, must be
notified in writing to the seller within seven days of delivery of the goods
to the buyer, failing which any such claim shall be deemed conclusively to
have been waived by the buyer; and
(b)
goods may only be returned
to the seller with the seller’s prior written consent. Should the seller
discover that the goods comply with the description under which they were
sold, the seller may in its absolute discretion charge the buyer the full
price of the goods, a handling fee and a disposal fee. All costs whatsoever
for the return or delivery shall be payable by the buyer.
USE OF INFORMATION
17.
The buyer agrees that any
other information collected by the seller about the buyer may be accessed or
collected for the use of the seller and any company in its group in the
course of its business, including direct marketing activities. Under the
Privacy Act 1993, the buyer has rights of access to, and correction of, its
personal information.
MISCELLANEOUS
18.
If at any time the seller
does not enforce any of these conditions or grants the buyer time or other
indulgence, the seller shall not be construed as having waived that
condition or its rights to later enforce that or any other condition.
19.
The buyer must not transfer
or assign its rights under these conditions to anyone else without the
seller’s prior consent in writing. The seller may assign or transfer any of
its rights or obligations under these conditions without the buyer’s
consent.
20.
The seller may vary these
conditions from time to time by giving notice in writing to the buyer or by
posting such amendments on the seller’s website, such amendments to be of
immediate effect unless stated otherwise. The buyer agrees to be bound by
such amendments.
21.
These conditions will be
governed by the laws of New Zealand and the parties submit to the
non-exclusive jurisdiction of the Courts of New Zealand.