Terms of Trade

1.    Terms of contract

1.1  Any goods supplied by us to you shall be subject to these Terms unless we agree in writing to change them. If you accept Goods from us, that action by you will be deemed to be acceptance of these Terms, not withstanding anything that may be stated to the contrary in your enquiries or your order.

2.    Price

2.1  Unless otherwise agreed in writing all freight, delivery and travel charges will be additional to any price quoted. Unless otherwise agreed in writing any quoted price may be altered prior to delivery of Goods to you, if our costs fluctuate materially. We may withdraw any quotation before it is accepted, and in any event any quotation will lapse 30 days after it is given, without notice. GST will be payable by you as an additional amount on all prices and charges.

2.2  The price for Goods will either as quoted to you in writing or, if no written quote is provided, pursuant to our standard charges applying at the time.

3.    Payment

      Unless otherwise agreed in writing you must pay for Goods by the 20th day of the month following the date of invoice relating to those Goods. If full payment for the Goods is not made on the due date, then without prejudice to any other remedies available to us:

(a)   We may cancel or withhold supply of further Goods;

(b)   Payment discount may be deducted

(c)   Interest or monies overdue shall be charged on a daily basis from the due date for payment until payment in full and be calculated by adding 3% per annum to the overdraft rate payable by us to our bankers at the time of and during such default, and interest shall continue to accrue both before and after judgement; and,

(d)   You shall be responsible for all costs incurred by us in recovering such monies including legal costs on a solicitor client basis.

3.3  We may from time to time vary your credit limit with us at our discretion, in relation to further purchases of Goods. If any acquisition would be in excess of your credit limit, we reserve the right to require payment in cash prior to delivery of the Goods, of the amount by which the costs exceed your credit limit.

3.4  We shall have full right of set-off with respect to amounts owed by you to us under these Terms, in relation to any monies owing by us, or any of our related companies to you howsoever arising. Your obligation under these Terms shall be to pay the full amount owing under these Terms free of all deductions or rights of set off.

4.    Ownership

4.1  Ownership in the Goods shall not pass upon delivery, but shall remain with us until full payment for all monies owing by you to us have been made. Until all monies have been paid:

(a)   You hold the Goods supplied as fiduciary for us and will deal with them as our agent for and on behalf of us (but will not hold yourself out as agent to any third parties);

(b)   You shall store our Goods separately consistent with Goods being our property, and ensure such Goods are able to be separately identified;

(c)   If you resell the Goods supplied the proceeds of any resale will belong to us, and you will pay the same into a separate account for which separate records are kept, and all claims which you hold against third parties will be handed over to us;

(d)   You irrevocably give us and our agents the right to enter your premises, to remove any of the Goods supplied and resell them; and

(e)   You agree to indemnify us (and our agents) against any liability incurred in connection with such entry and removal.

5.    Risk and Delivery

5.1  Wm Ross Engineering Limited shall deliver the Goods to the address stated on the account application, unless otherwise agreed to in writing. The cost of delivery is in addition to the cost of Goods.

5.2  If we are delivering the Goods to you, we will use our best endeavours to see the deliveries are made according to schedule, but shall not be responsible for delivery delays due to causes beyond our control.

5.3  Risk in respect of Goods sold shall pass to you when the Goods are delivered to you or as you direct and signed for, or the time you pay for the Goods, whichever is earlier.

6.    Warranties

6.1  Except to the extent of written warranties given by us to you, all warranties and representations in respect of Goods supplied are excluded, including (to the extent permitted by law) those expressed or implied by law. Where any written warranty conflicts with clauses 6.2 or 6.3 the provisions of the clauses 6.2 and 6.3 as applicable shall apply.

6.2  Wm Ross Engineering Limited shall have no liability to you in the following circumstances:

(a)   Where you have altered or modified the Goods, mis-applied the Goods, or have subjected them to any unusual or non recommended use, servicing or handling;

(b)   For loss caused by any factors beyond our control;

(c)   For any indirect or consequential loss of any kind; and,

(d)   Where the terms of any written warranty have not been complied with, or any manufacturers’ handbook provided to you has not been complied with.

6.3  Our total liability under any warranty for defective or damaged Goods supplied by us is limited at our option to either;

(a)   Replacing or repairing the defective or damaged Goods; or

(b)   Refunding the price of the defective or damaged Goods.

6.4  Goods identified to us as damaged or defective, may be inspected by us at our discretion.

6.5  Any return of Goods and/or request for credit on Goods returned shall be subject to the following conditions;

(a)   A prior Returned Goods Authorisation number is obtained from us in writing within 72 hours of receiving the products;

(b)   The RGA number must be attached to the outside of the Goods;

(c)   Reason for return must be enclosed with the Goods;

(d)   The risk of any loss, damage or deterioration of Goods returned to us will remain with you until the Goods have been received and inspected at our premises

(e)   If required to do so by us, you must be able to show proof of delivery of returned Goods. Failure to show proof of delivery will result in repudiation of any claims made by you against us for the returned Goods in question;

(f)   If we allow Goods to be returned by you, the level of credit given to you is at our discretion;

(g)   All claims against us for shortages and breakages must be made in writing within seven days of receipt of Goods by you.

7.    Restocking Fee

(a)   Where we accept Goods back for return, as a result of customer error, we reserve the right to charge a restocking fee.

(b)   Goods returned may also be subject to a freight forward fee incurred by us in returning Goods to our premises.

8.    General Terms

8.1  Mediation: If a dispute arises, the parties may agree to settle the dispute by mediation before resorting to litigation or arbitration.

8.2  Waiver or variation: Waiver or variation of these Terms by us will only be effective if given in writing by an authorised person. If we waive any of these Terms the waiver will not affect our rights under these Terms at any future time.

8.3  Governing Law: These Terms will be interpreted in accordance with and governed by the Laws of New Zealand and the New Zealand courts will have non-exclusive jurisdiction in respect of all matters between us.

8.4  The Privacy Act: You and any guarantor (if relevant) authorise us to collect and hold personal information from any source we consider appropriate to be used for the purposes of determining credit worthiness, for communicating promotional activities and product information by us, for debt collection purposes, or for any other related purpose. You further authorise us to disclose personal information held by us for the purposes set out above to any other parties. You understand that you have a right of access and may request correction of personal information held by us about you.

8.5  Consumer Guarantees Act (CGA): If the CGA applies, these Terms shall be read subject to your rights under the CGA, provided that where you are acquiring Goods or services for business purposes the CGA shall not apply.

9.    PPSA

9.1  Security: You acknowledge and agree that by assenting to these Terms, you grant a security interest (by virtue of the retention of title provisions in clause 4 of these Terms) to us in all Goods previously supplied by us to you (if any) and all after acquired Goods supplied by us to you (or for your account) and authorise us to register a financing statement against the customer on the personal properties register.

9.2  Financing statement: You undertake to:

(a)   Sign any further documents and/or provide any further information (which information you warrant to be complete, accurate and up to date in all respects) which we may reasonably require to enable registration of a financing statement or financing change statement on the personal properties register;

(b)   Not register a financing change statement or change demand in respect of goods (as those terms are defined in the PPSA) without our prior written consent; and

(c)   Give us not less that 14 days prior written notice of any proposed change in your name and/or any other change details (including, but not limited to changes in your address, facsimile number, trading name or business practice).

9.3  Waiver and Contracting Out

(a)   Unless otherwise agreed to in writing by us you waive your right to receive a verification statement in respect of any financing statement or financing change statement relating to the security interest.

(b)   To the maximum extent permitted by law, you waive your rights and, with our agreement, contract out, your rights under the sections referred to in sections 107(2)(c) to (i) of the PPSA.

(c)   You agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these Terms and, with our agreement, contract out of such sections.

(d)   You and we agree that section 109(1) of the PPSA is contracted out of in respect of particular Goods if and on for as long as we are not the secured party with priority over all other secured parties in respect of those Goods.

10.  Defined Terms

Goods means all Goods supplied from time to time by us to you, provided that:

(a)   Where the Goods supplied are your inventory, then all references to Goods in these Terms shall, in respect of those Goods, be as references to inventory; and

(b)   Where the Goods supplied are not Inventory then all references to Goods in these Terms shall, in respect of those Goods, mean the Goods described in any one or more of the relevant order form, packing slip or invoice (or its equivalent, whatever called) relating to those Goods, on the basis that each such order form, packing slip or invoice (or its equivalent) shall be deemed to be incorporated in, and form part of, these Terms.

Inventory has the meaning given to that term in the PPSA.

PPSA means the Personal Property Security Act 1999 as amended or substituted from time to time.

Terms means these terms of trade.

Unless the context otherwise requires, words and phrases shall have the meanings given to them in, or by virtue of, the PPSA.