1. Binding terms and conditions

These terms and conditions shall apply to, and bind the Applicant (you or your, in these terms and conditions) in respect of, all sales and supplies by the Supplier to you, and all purchases by you from the Supplier, of goods and services, and all other transactions between the Supplier and you.

2. Orders and resulting contracts

(a) Orders for goods or services you place with the Supplier will only be accepted by the Supplier upon and subject to these terms and conditions, and no variation shall apply to these terms and conditions except with the written agreement of the Supplier or its authorised person. Each order you place with the Supplier must identify the goods or services ordered, the quantity required and refer to a current written quotation (if any) issued by the Supplier to you pursuant to which the order is made. The Supplier may, in its absolute discretion, accept or reject an order of yours. It may also accept only part of an order.
(b) A contract shall be deemed to have been entered between you and the Supplier upon acceptance in writing by the Supplier of an order (or part thereof), whether such order is written or oral, from you, being a contract for the supply by the Supplier to you, and the purchase by you from the Supplier, of the goods or services which are the subject of the order (to the extent accepted by the Supplier), on and subject to these terms and conditions (contract).
(c) The Supplier may refuse at its discretion to sell or supply goods or services to you at any time, including whether or not part of a contract has been performed, where goods or services are unavailable for any reason, a non-complying order is received or you have defaulted under these terms and conditions.

3. Prices

All prices of goods and services supplied by the Supplier which are quoted in the Supplier’s price lists and catalogues are exclusive of GST or any similar impost or tax, unless otherwise specified, and the prices are subject to change without notice. The Supplier reserves its right to invoice the goods or services sold at the revised prices if it so chooses. Unless the price for particular goods notified by the Supplier to you is specifically Cityd to include GST or any similar impost or tax which may apply in any jurisdiction in respect of the goods, an amount equal to the GST or such other impost or tax is payable by you to the Supplier in addition to the price for those goods notified by the Supplier, when the Supplier invoices you for the additional amount.

4. Supplier’s inability to supply

If, for any reason beyond the Supplier’s control, the Supplier cannot supply all of the goods or services under a contract, then the Supplier has the right to cancel all or part of that specific contract and you shall not have any claims against the Supplier for any type of compensation arising out of or in connection with the cancelled contract or the cancelled part of that contract (as applicable), and this is without prejudice to the rights of the Supplier to recover all monies owing to it by you in respect of the un-cancelled part of that contract and other contracts that have been fulfilled. You must not cancel an order for goods or services after it has been placed with the Supplier, or cancel a contract, unless agreed to in writing by the Supplier. The decision of the Supplier to agree or not is at its total and unfettered discretion.

5. Return of goods

Without limiting clause 4 of these terms and conditions, you must not return any goods supplied by the Supplier to you or at your direction without:
(a) the consent of the Supplier first being obtained in writing, which must be given by an authorised officer of the Supplier; and
(b) a return authorisation number (RAN) being allocated by the Supplier for that authorised return (which it may do in its absolute discretion).
If the Supplier agrees to accept a return of goods and allocates a RAN to them, these goods must be returned to the Supplier at your sole expense in good and saleable condition (save for any defects for which the Supplier has accepted responsibility under clause 16), in which case the Supplier shall credit you the invoiced value of the returned goods.

6. Title

(a) Title to goods sold by the Supplier to you will not pass from the Supplier to you until the later of:
(i) unconditional payment in full to the Supplier for those goods; and
(ii) unconditional payment in full of all other amounts owing or unpaid by you to the Supplier on any account, including in respect of goods previously or subsequently supplied to you.
(b) Payment in full will not be regarded as having been received by the Supplier unless and until payment is made in cleared funds.
(c) Until such time as title to goods sold by the Supplier to you passes to you under clause 6(a):
(i) you will hold the goods as a fiduciary and as bailee for the Supplier and will be responsible for any loss, damage or conversion of the goods;
(ii) you must store the goods in such a manner as to show clearly that they remain the Supplier’s property;
(iii) the Supplier may enter any premises owned or occupied by you or your agents to inspect the goods or inspect your books or records regarding the goods at any time; and
(iv) subject to clause 8(a)(x), you may only use the goods in the ordinary course of your business, or sell the goods in the ordinary course of your business, provided that where you sell goods, you will do so as principal and you will have no power to commit the Supplier to any contract or otherwise or to any liability, but as between you and the Supplier, you will sell as fiduciary agent.
(d) You must ensure that the goods are not and will not be subject to any security interest (including a lien) granted or created in favour of any third party (whether under contract, statute or common law) without the Supplier’s prior written consent. Without limiting the Supplier’s rights, if you become aware of a third party’s interest in or relating to a security interest, including a lien, in respect of the goods, you must notify the Supplier immediately in writing and provide the Supplier with all relevant details relating to the security interest, including the third party’s full name and contact details, the nature of the security interest and the goods subject to the security interest.
(e) Despite this clause 6, the Supplier is entitled to maintain an action against you for payment of the purchase price of the goods.

7. Personal Property Securities Act 1999 (PPSA)

(a) You grant a security interest to the Supplier in each and every part of the Goods as security for payment of that part and of each other part or parts of the Goods and for any other amounts owing by you to the Supplier from time to time, and for the performance by you of all your other obligations to the Supplier from time to time, your indebtedness and obligations”). For the purposes of section 36(1)(b) of the PPSA, and to ensure maximum benefit and protection for the Supplier by virtue of section 36(1)(b)(iii) of the PPSA, you confirm and agree that you intend to and do grant to the Supplier, as security for your indebtedness and obligations, a security interest in all of your present and after-acquired property except only for any such property which is or comprises items or kinds of personal property (“Excepted Property”):
(i) in or to which you have right; and
(ii) which has not been supplied by the Supplier to you,
(b) Other than any Excepted Property which is or comprises proceeds of any of that present and after-acquired property which has been supplied by the Supplier to you.
(c) The Supplier may allocate amounts received from you in any manner it determines, including in any manner required to preserve any purchase money security interest it has in any Goods.
(d) You waive the right to receive a copy of the verification statement confirming registration of a financing statement or financing change statement relating to the security interest under the Terms and Conditions of Trade.
(e) You agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to this Contract, or the security under this Contract, and waives your rights under sections 121, 125, 129, 131 and 132 of the PPSA.

8. Default

(a) If:
(i) you breach any clause of these terms and conditions or any clause of any other agreement to which you and the Supplier are parties;
(ii) any cheque tendered by you or on your behalf to the Supplier is dishonoured for payment;
(iii) you fail to comply with any lawful demand for payment issued by the Supplier;
(iv) any amount payable by you to the Supplier becomes overdue for payment or, in the Supplier’s opinion, you will be unable to meet your payment obligations to the Supplier as they fall due;
(v) any of the following occurs to you, if you are a company:
(A) a receiver, manager, administrator or controller becomes entitled to take possession of any of your assets, any proceedings are instituted for your winding up, or you enter into a deed of company arrangement; or
(B) you become an externally-administered body corporate or become insolvent;
(vi) you (if you are an individual) commit an act of bankruptcy or are or become an insolvent under administration; or
(vii) a change occurs in your ownership or in the ownership of your business, or in your directors;
then, without prejudice to the Supplier’s other remedies under these terms and conditions or at law:
(viii) all amounts owing to the Supplier by you will, whether or not due for payment, become immediately payable by you;
(ix) the Supplier will be entitled to cancel all or any part of any of your orders which remain unfulfilled;
(x) your right to possess, use up, sell or otherwise deal with goods in respect of which title has not passed to you under clause 6(a) will cease; and
(xi) the Supplier will be entitled to enter any premises where the goods in respect of which title has not passed to you under clause 6(a) are kept, and remove, repossess and re-sell all or any such goods. The Supplier is not liable to you if it takes any such action.
(b) You indemnify the Supplier in respect of any claims or actions against, and costs, expenses and other liabilities incurred by, the Supplier in relation to:
(i) the removal, repossession and sale of goods pursuant to these terms and conditions, including without limitation, any claims brought by third parties; and
(ii) any of the matters set out in clauses 8(a)(i) to (vii) (both inclusive).
(c) You must pay interest to the Supplier on any of its invoices to you which are overdue for payment. Such interest will accrue daily at a daily rate of 0.09%, from the date when payment becomes due until the date of payment. Interest will be calculated daily, and will accrue at such a rate after, as well as before, any judgment.
(d) Without prejudice to any other remedies the Supplier may have, if at any time you are in breach of any obligation (including relating to payment), the Supplier may suspend or terminate the supply of goods and services to you and any of the Supplier’s other obligations under these terms and conditions. The Supplier will not be liable to you for any loss or damage you suffer because the Supplier exercises its rights under this clause.
(e) If the arrangements provided under this clause 8 constitute a credit contract as defined in the National Credit Code, the time for payment of any overdue account is limited to a total period of not more than 62 days from the date of the Supplier’s invoice. Nothing in this clause 8(e) imposes an obligation on the Supplier to extend its payment terms to you for any period at all.

9. Payments

(a) You shall pay to or at the direction of the Supplier the total amount owed for goods and services supplied to you by the Supplier, as set out on the Supplier’s invoice relating to the relevant goods or services, within the time or by the due date stipulated in that invoice. The Supplier extends no further credit to you beyond that time or that due date.
(b) You will not be entitled to make any claim on the Supplier if any amounts are outstanding from you to the Supplier. You are not entitled to set off any amounts against your outstanding debts to the Supplier. The Supplier may at any time set off amounts owed by the Supplier or any of its related bodies corporate to you against any amounts owed by you to the Supplier or any of its related bodies corporate. You may not deduct any sum from the amount due on any of the Supplier’s invoices or Cityments for any reason whatsoever, including any equitable right and any statutory right which may be excluded by agreement.

10. Supplier’s expenses

You will pay to the Supplier any and all of the Supplier’s expenses including any legal costs (on an indemnity basis), and other expenses payable under these terms and conditions together with any collection costs incurred in connection with the enforcement of, or preservation of any rights under, these terms and conditions. Such costs, duties and other expenses may be recovered by the Supplier from you as a liquidated debt. Any payments received by the Supplier from you must be applied first to any legal costs, duties and other expenses, then to interest and the remainder to the balance of monies owed by you.

11. Consumer Guarantees Act 1993 (The “CGA”)

(a) Where (were it not for this paragraph) the CGA would apply to the contract of sale into which these terms are incorporated, and you acquire (or hold yourself out to be acquiring) the goods for the purposes of a business as defined in the CGA, you agree that the CGA does not apply to the contract of sale.
(b) Nothing in these terms (particularly the clauses headed (“Return of Goods” and “Claims”) is intended to have the effect of contracting out of the provisions of the CGA where the CGA applies. Where the CGA applies, these terms are modified accordingly.
(c) The Supplier is not liable for any indirect or consequential loss however described (including without limitation, loss of profits), except for any such liability which may not be excluded by force of law.

12. Force majeure

The Supplier will not be liable for any default due to any act of God, war, terrorism, strike, lock out, industrial action, fire, flood, drought, storm or other event beyond the Supplier’s reasonable control.

13. Delivery

(a) Delivery of goods supplied by the Supplier to you takes place at the time:
(i) the goods pass into your, your carrier’s or your agent’s exclusive physical control;
(ii) when you collect goods or arrange for their collection from the Supplier; or
(iii) when ownership of the goods has passed to you,
whichever is earliest time.
(b) Unless the Supplier agrees otherwise, you are responsible for all delivery costs.
(c) Any date for delivery of goods indicated by the Supplier is an estimated date for delivery only. The Supplier is not liable for any loss, including consequential loss or damage, however it arises, if goods are not delivered or supplied by that date. In no case will the Supplier be liable for any amount payable by you to a third party as a result of a failure or delay in delivery by the Supplier due to any cause whatsoever.
(d) If agreed by the Supplier, it will deliver goods you purchase from the Supplier to an address nominated by you. If the Supplier delivers goods, then:
(i) you must pay all freight, insurance and other charges associated with the delivery, and the Supplier may choose the mode of transport, carrier and insurer (if applicable); and
(ii) you or your representative must be present at the agreed place and time for delivery. If you or your representatives are not present, the Supplier may unload the goods at that place, in which case the goods will be deemed to have been delivered and the Supplier will not be responsible for any claims, costs or losses suffered by you.

14. Containers

(a) If it is necessary for the Supplier to order container(s) for the delivery of goods ordered by you, you will be responsible for complying with the relevant time limitations specified by each relevant shipping company for the hiring of the container(s). You acknowledge that normally, you will have (without being charged by the shipping company) 3 days from delivery of the goods to the relevant wharf to accept the goods, and then 7 days from the time of delivery to unload the goods from the container and de-hire the container for return to the shipping company. These time periods are indicative only and subject to change by shipping companies without notice to you.
(b) Any costs incurred for lateness in acceptance, unloading and de hiring of the container are your sole responsibility and you acknowledge and unconditionally agree that you will indemnify the Supplier against, and be solely responsible for, those extra charges, if incurred by the Supplier and that you shall pay or reimburse those charges to the Supplier upon demand and without deduction or set off. As an indicator only, shipping companies may charge $NZD 120.00 per day for the first day and then NZD $240.00 per day thereafter by way of such extra charges. These rates are subject to change by shipping companies without notice to you.
(c) The Supplier is not responsible for advising you of actual shipping companies’ fees and deadlines for the acceptance and unloading of goods and for the de-hiring and return of containers, and failure by the Supplier to so advise you will not entitle you to avoid or withhold payment of fees charged by shipping companies to the Supplier in respect of goods ordered by you.

15. Risk

(a) At all times from the time of delivery (as determined under clause 13(a)), goods supplied by the Supplier to you are at your risk of loss or damage and you are responsible for their safe custody. It is up to you to arrange your own insurance.
(b) If any such goods are damaged or destroyed prior to property in them passing to you, the Supplier is entitled, without prejudice to any of its other rights or remedies under these terms and conditions (including the right to receive payment of all the balance of the price for the goods) to receive all insurance proceeds payable for the goods. This applies whether or not the price has become payable under a contract. The production of these terms and conditions by the Supplier is sufficient evidence of its right to receive the insurance proceeds without the need for any person dealing with the Supplier to make further enquiries.

16. Claims

(a) When you take delivery of goods supplied by the Supplier, you must inspect them immediately and carry out any test that a prudent purchaser would carry out.
(b) Goods supplied by the Supplier will be considered to have been supplied and delivered in good condition unless you give the Supplier written notice of any damage or defect within 7 days after delivery. If you give the Supplier this notice, you must:
(i) preserve the goods in the City in which they were received by you for 14 days after notice is received by the Supplier;
(ii) during that period allow the Supplier and its agents access to any premises where the goods are kept for the purposes of inspecting the goods; and
(iii) not return the goods unless you comply with clause 5 of these terms and conditions, and with any directions the Supplier gives you concerning the goods.
(c) The Supplier is under no obligation to accept goods returned by you or that you claim are defective, and will do so at its discretion and then subject to you having complied with clauses 5 and 16(b).
(d) You agree that you will make no claim against the Supplier for any delay in delivery of goods or services.

17. Intellectual Property Rights

(a) Neither these terms and conditions nor any contract gives you any Intellectual Property Rights in or in relation to any goods or services supplied by the Supplier to you.
(b) In this clause 17, Intellectual Property Rights includes, but is not limited to, the full benefit of any rights in any copyright, trade mark, registered design, patent, trade and business names, inventions, knowhow, improvements, discoveries, confidential processes and information and includes artistic works, images, designs, motifs and photographs and any adaptation or concept relating to it.

18. Trusts

(a) This clause 18 applies if you are the trustee of a trust, whether or not the Supplier has notice of the trust.
(b) Where you comprise 2 or more persons and any of those persons is a trustee, this clause 18 applies to such trustee.
(c) You agree that even though you enter into these terms and conditions or a contract as trustee of a trust, you will also be liable personally for the performance and observance of every obligation to be observed and performed by you, whether express or implied, in these terms and conditions or any contract.
(d) You warrant your complete, valid and unfettered power to enter into these terms and conditions and each contract pursuant to the terms of the trust, and warrant that your entry into these terms and conditions and each contract is in the due administration of the trust.
(e) You warrant that you have a right of indemnity against the property of the trust and that right has not been, and in the future will not be, excluded, modified, released, lost or diminished (whether by agreement, breach of trust or otherwise).
(f) You must not, without the Supplier’s prior written consent:
(i) resign or be removed as trustee of the trust or appoint or allow the appointment of a new or additional trustee of the trust;
(ii) amend or revoke any of the terms of the trust;
(iii) vest or distribute the property of the trust or advance or distribute any capital of the trust to a beneficiary or resettle any of the property of the trust;
(iv) permit a beneficiary to have the use, occupation, employment or possession of the property of the trust;
(v) do or permit or omit to do an act or thing in breach of the terms of the trust, or which would permit the trustee to be removed as trustee of the trust;
(vi) exercise or permit or allow to be exercised a power to change the vesting date of the trust or provide for an early determination of the trust;
(vii) lend any money, give any guarantee or incur any debt other than in the ordinary course of business of the trust; or
(viii) pay any of the income of the trust to any beneficiary of the trust if such payment will prejudice or affect your ability to pay all amounts due to the Supplier.

19. Whole agreement

These terms and conditions and each contract form the entire agreement on which the Supplier supplies goods and services to you or otherwise trades with you, and all or any previous agreements or understandings the Supplier may have had with you are superseded by these terms and conditions and each contract.

20. Amendments

The Supplier may amend (including, without limitation, by replacing) these terms and conditions at any time on not less than one month’s written notice to you. All transactions (including contracts) arising after the effective date of the amendments specified in such notice will be subject to the amended terms and conditions. If you continue to trade with the Supplier after the date such amendments become effective, you will be deemed to have agreed to the amended terms and conditions.

21. Assignment

(a) You may not assign any rights or benefits under these terms and conditions or any contract unless you have obtained the Supplier’s prior written consent. Any change in any ownership interest in you will be treated as an assignment. Any assignment by you without the Supplier’s consent will release the Supplier (at its discretion) from its obligations under these terms and conditions and each contract, and clause 8 will apply.
(b) The Supplier may assign, sub-contract or license any of its rights, benefits or obligations under these terms and conditions or any contract without your consent.

22. Governing law and jurisdiction

These terms and conditions and each contract are governed by the laws of New Zealand. You and the Supplier submit to the exclusive jurisdiction of the courts of New Zealand.

23. Notices

(a) Any notice required to be given by you to the Supplier must be delivered personally or sent by post to its head office addressed to its accounts department and will only be taken as delivered when received by the Supplier.
(b) Any notice to be given to you by the Supplier may be delivered personally or sent by post to your last known address and will be taken as delivered to you 2 business days following posting. The Supplier’s invoices and Cityments are deemed to be received by you 2 business days after posting by ordinary prepaid post.
(c) Service by the Supplier of any document will be treated as having been effected when sent:
(i) by facsimile transmission, to the fax number; or
(ii) by email, to the email address, shown in your application to the Supplier for credit, and for the purpose of section 13(1) of the Electronic Transactions (Victoria) Act 2000 and any similar legislation in any other jurisdiction, you agree that in the case of facsimile or email transmission, production by the Supplier of a copy of a facsimile transmission or email message bearing the time and date of dispatch will be conclusive evidence that the facsimile transmission or email message was sent on that date and time shown.

24. Supplier’s related entities

You agree that if any related entity of the Supplier nominated by the Supplier from time to time agrees to supply goods or services to you, these terms and conditions shall apply to, and bind you in respect of, all sales and supplies by that related entity to you, and all purchases by you from that related entity, of goods and services, and all other transactions between that related entity and you, as if that related entity were named as the Supplier in these terms and conditions.

25. Exclusion of your terms and conditions

These terms and conditions and each contract override your terms and conditions (including, without limitation, any terms and conditions printed on an order, or that you send to the Supplier at any time). These terms and conditions and each contract apply in place of, and to the exclusion of, your terms and conditions.