CABLECOM LTD STANDARD TERMS AND CONDITIONS OF TRADE
All services and products (“Goods”) supplied by Cablecom Ltd (“the Company”) to the Applicant Business (“the Buyer”) are supplied subject to the following Terms and Conditions of trade which shall prevail despite any indication to the contrary by any person, agent or representative acting or purporting to act on behalf of the Company.
Acceptance of the goods shall be completed upon the Buyer signing the order or otherwise accepting the order (whether in writing or verbally) or accepting delivery of goods.
Risk of any loss, deterioration or damage of or to the goods shall be borne by the Buyer from the time of delivery. The Buyer shall ensure that the Buyer’s insurance covers the Goods from the time of delivery to their premises.
3.1 The Company in providing goods and services to the Buyer shall not be responsible for negligence or any act or omission caused by any other party.
The price of goods supplied are as per the Company’s price list as at the date of delivery. Prices may be altered at any time by the Company without notice.
All quotations exclude Gst and are valid for not more than 30 days from the date thereof. After 30 days quotations may be required to be resubmitted.
Full payment for the goods supplied shall be due from the Buyer on the earlier of the following (“the due date”):
- a) On or before the 20th of the month following invoice unless otherwise agreed in writing by the Company;
- b) Immediately when the Buyer sells or otherwise disposes of the goods; or
- c) Immediately upon the commencement of any action or proceeding which involves the Buyer’s solvency (and in such a situation the Buyer shall keep the proceeds of any sales separate from the Buyer’s funds).
7 DEFAULTS IN PAYMENT:
The Buyer agrees to pay interest on all sums and overdue amounts outstanding at 2.5% per month from the due date or date of default as the case may be until payment is made. Interest will be compounded monthly and added to the overdue amount. .If a solicitor or debt collector is instructed by the Company to enforce or attempt to enforce any rights pursuant to these terms and conditions of sale then the Buyer agrees to reimburse (with all other monies due) any liabilities, fees and disbursements as charged to the Company as a result.
7.1 Without prejudice to any other remedies which the company might have, failure by the Buyer to pay any debt will entitle the Company to cancel any contracts which the Company has with the Buyer. Upon such cancellation and without prejudice to any other remedies which the Company might have, all credit under any contract (including other contracts) in favour of the Buyer will cease and all payments outstanding will become immediately due and payable to the Company, including all amounts owing by the Buyer.
7.2 The Buyer may not withhold payment of any invoice issued by the Company if in the Buyer’s opinion the Company has in providing any goods or services failed to comply with the requirements of the Buyer if such failure is not directly attributable to any negligence, act or omission by the Company.
8 PERSONAL PROPERTY SECURITIES ACT 1999:
- a) The Buyer grants to the Company a security interest in the Goods and their proceeds and accessions to firstly secure payment of the purchase price of the Goods and secondly to secure payment of all outstanding debts and obligations of the Buyer to the Company from time to time.
- b) The Buyer agrees to execute any documents, provide all relevant information and cooperate fully with the Company to ensure that the Company has a perfected security interest in the personal property charged in (a) above and, if applicable, a purchase money security interest.
- c) The Buyer shall pay the Company’s costs of any discharge or amendment of any Financing Statement.
- d) The Buyer will supply the Company within 2 business days of written request copies of all documents granting security interests registered over the Buyer’s personal property. The Buyer authorizes the Company as an agent to request any information from any secured party relating to any security interest which is held in any personal property which is or has been in the Buyer’s possession or control.
- e) The Buyer will immediately notify the Company in writing of any change in the Buyer’s name or other material identifying characteristics of either the Buyer or the goods purchased.
- f) Nothing in sections 114(1)(a), 133, and 134 of the PPSA shall apply to this contract. The Buyer waives its rights pursuant to sections 121, 125, 129, 131 and 132 of the PPSA and its rights to receive any verification statement relating to the security interests in the Goods.
9 OWNERSHIP AND RISK:
Ownership in the Goods will remain vested in the Company until the Buyer has made full payment for all Goods supplied by the Company to the Buyer together with all interest and other moneys due. Until ownership has passed from the Company to the Buyer then the following terms shall apply:
- a) The Buyer shall be deemed to be a bailee of the Company and acting in a fiduciary capacity in respect of any goods supplied by the Company and shall insure the Goods with the interest of the Company noted;
- b) The Buyer shall store the goods in such a way and in such condition and place as to make it clear that they are owned by the Company.
- c) The Buyer shall not under any circumstances mix the Goods with other personal property in any manner.
- d) The Buyer shall take all reasonable steps to ensure the security and protection of the Goods from damage by other parties at all times.
- e) The Company shall not be liable for any damage to Goods and/or property supplied and/or installed at the Buyer’s premises caused by the Buyer or any employee of the Buyer or any other party or Contractor on the Buyer’s premises.
If the Buyer defaults in payment for the Goods then, subject to any contrary provision of the PPSA, the Company shall have leave and license to enter upon any property occupied by the Buyer or by purchaser from the Buyer without notice in order to inspect, search for and remove the Goods and following removal to resell the Goods and apply the proceeds to overdue amounts. The Company shall not be liable to the Buyer or third party for the exercise of its rights under this clause and the Buyer indemnifies the Company against all costs and claims in respect of the Company’s rights exercised under this clause
10 DISPUTES AND CREDITS:
Disputes and credits will only be considered valid if brought to the Company’s attention within 10 days of the date of supply. To be accepted by the Company, all goods to be returned must be in as new condition in the manufacturer’s (or supplier’s) original, unsoiled and undamaged containers. Credits will not be given for procured goods.
10.1 Should any disputes arise under this contract relating to Goods and Services supplied either party shall give notice to the other specifying the matter in dispute and The Company and the Buyer shall use their reasonable endeavours to resolve such dispute. If agreement cannot be reached then either party may refer the matter to. Arbitration pursuant to the Arbitration Act 1996 or commence Court proceedings relating to that dispute.
11 GUARANTEES AND CONDITIONS:
Goods returned under warranty must be prepaid free into the Company’s store. The Company does not warrant the goods it distributes, but in most cases, the manufacturer or supplier does. In many cases, the Company acts as an agent for the manufacturer in administering their warranties.
12 EXCLUSIONS OF LIABILITY:
To the maximum extent permitted by law, the Company shall not be liable for lost profits, loss of goodwill or any incidental, special or consequential damages even if advised of the possibility of same. No warranty or condition shall be implied herein against the Company by Statute, Common Law, regulation or otherwise other than the warranty by the Company that it has the right to deal in goods. Should the Company be found liable to the Buyer for any reason notwithstanding the foregoing, the Buyers agrees that in no case shall the liability of the Company exceed the purchase price of the goods giving rise to the liability.
13 CONSUMER GUARANTEES ACT
The Buyer warrants that it is purchasing the Goods for business purposes. Where the Buyer has purchased the Goods for the purposes of resale to persons acquiring them for business purposes, it must be a term of the Buyer’s contract with that purchaser that the Consumer Guarantees Act 1993 does not apply in respect of the goods.
If the Buyer requests at any time by notice in writing to the Company variation of any Goods or Services yet to be supplied and/or performed from those specified in the original quotation the Company shall comply with each such request:
(a) If it expressly agrees to do so
(b) Has available to it the necessary resources required for it to comply with such request
Once the Company has agreed to any such request the contract shall be varied accordingly (with each such variation being referred to as a “Variation”).
14.1 If any Variation results in any additional costs being incurred for Goods and Services to be supplied by the Company, the Company reserves the right to charge for such additional costs in accordance with the Company’s prices as at the date of delivery or at such amount as may be agreed between the Buyer and the Company at the time of such Variation.
15 LOSS OF TIME
The Company reserves the right to charge labour (over and above the original quoted Contract price) for any reasonable loss of time caused by any delay or hold up beyond the Company’s control as a direct result of either the Buyer or its representatives or any other Contractor (other than those employed by the Company) failing to perform or meet commitments and/ or schedules which may result in the Company being delayed and unable to continue with its supply of services and/or goods at any time during the course of the contract. Such labour to be charged at the Company’s current hourly rate and be deemed to be a variation under Clause 14 of this agreement.
These terms and conditions shall be governed by and construed in accordance with the law of New Zealand and the parties unconditionally and irrevocably submit to the exclusive jurisdiction of the New Zealand courts.