Terms & Conditions of Sale of Mace Asset Services Limited (as Principal)
1 AGREEMENT: GOODS, PRICE, TIME OF DELIVERY, PLACE OF DELIVERY, PAYMENT
1.1 The Seller agrees to sell and the Buyer agrees to buy the goods referred to in the Order Form at the price stated in the Order Form to be delivered to the place stated in the Order Form at the time and manner stated in the Order Form for which payment is to be made at the time and manner stated in the Order Form and as set forth in this agreement.
1.2 The Buyer agrees that the Seller shall withhold delivery of the goods until the Buyer has paid for them in cleared non-reversible funds. Payment shall be made before the delivery date, and time for payment shall be of the essence.
1.3 All prices are plus GST and other taxes: GST & taxes are additional to the price and must be paid by the Buyer.
1.4 All sums due from the Buyer to the Seller that are not paid on the due date (without prejudice to the rights of the Principal under this Agreement) will bear interest from day to day at the annual rate of 18 % charged at 1.5% per month or part thereof.
1.5 The Buyer indemnifies the Seller for full solicitor/ client and other recovery costs relating to any default of the Buyer under this agreement.
2 SALE ON AN “AS IS WHERE IS” BASIS
2.1 The Buyer acknowledges that it has inspected the goods referred to in the Order Form and that the Buyer is buying the goods on an “as is where is” basis. The Buyer acknowledges that in agreeing to buy the goods and entering into this agreement it has relied solely on its own judgment as to both the terms of the Order Form, this agreement, quality and/or fitness for purpose of the goods and/or any of the goods, and not on any representations made by the Seller, other than that the Seller has good title to the goods and is able to sell them to the Buyer.
2.2 The Buyer acknowledges that the Order Form shall, read in conjunction with this agreement, be a final and complete record of the relationship between the Seller and the Buyer in respect of the goods, and will supersede all prior agreements or understandings, and that no representations are or have been made by the Seller in relation to the quality and/or fitness for purpose of the goods and/or any of the goods.
3 NO UNDERTAKING AS TO QUALITY OR FITNESS AND EXCLUSION OF LIABILITY
3.1 All terms, conditions and warranties:
a) all terms, conditions and warranties (whether implied or made expressly) whether by the Seller or its Sellers or employees or otherwise relating to the quality and/or fitness for purpose of the goods and/or any of the goods are excluded.
b) the Seller shall be under no liability whatsoever (whether direct, indirect or loss of profit) to the Buyer for any loss, damage, liability or injury suffered by the Buyer arising out of a breach by the Seller of this agreement.
3.2 If, notwithstanding clauses 2 and 3.1 or any other clause in this Agreement, the Seller is held liable to the Buyer in any manner whatsoever, the remedies of the Buyer shall be limited to damages. Under no circumstances shall the liability of the Seller exceed the price of the goods.
4 INDEMNITY
4.1 The Buyer shall indemnify the Seller against any loss, damage, liability or injury suffered by the Seller as a result of any third party claims, costs, expenses and action which arise out of the Buyer’s use of the goods, and shall also indemnify the Seller against any refusal of any insurer of the goods to meet any claim.
5 PASSING OF RISK AND TRANSFER OF TITLE
5.1 Title in the goods shall pass to the Buyer upon the Buyer’s payment of the price stated in the Order Form in cleared, non-reversible funds.
5.2 All risk of loss or damage to the goods shall pass to the Buyer upon delivery to the place stated in the Order Form at the time and manner stated in the Order Form.
5.3 When delivery has been delayed through the fault of the Buyer the goods are at the risk of the Buyer as regards any loss that might not have occurred but for such fault.
6 PLACE AND MANNER OF DELIVERY OF GOODS
6.1 It is for the Buyer to forthwith take possession of the goods and not for the Seller to send them to the Buyer.
6.2 The expenses of and incidental to putting the goods into a deliverable state for transit shall be borne by the Buyer.
6.3 Each parties’ rights and obligations in relation to delivery shall be in accordance with the Inco Terms specified in the Order Form unless otherwise provided in the Order Form. Notwithstanding the forgoing, the Buyer is responsible for arranging all necessary authorisations to permit shipping the goods from New Zealand and the Seller makes no representation or warranty and accepts no liability whatsoever to the Buyer or any third party in respect of the availability or issue of valid import and export or other permits.
6.4 The Seller shall not be liable for any loss or damage whatsoever due to failure by the Seller to deliver the goods (or any of them) promptly or at all. Notwithstanding that the Seller may have delayed or failed to deliver the goods (or any of them) promptly, the Buyer shall be bound to accept delivery.
7 GENERAL
7.1 Subject to the Seller’s order form which incorporates by reference the Terms and Conditions contained herein, where the terms of this agreement are at variance with the other documents relating to the order of the goods specified herein, this agreement shall prevail. Any usage of trade, special agreement, or course of dealing between the parties at variance with the terms of this agreement are excluded.
7.2 If any term of this agreement is illegal, invalid or unenforceable for any reason whatsoever including, but without limitation, legislation or other provisions having the force of law or any decision of any court or other body or authority having jurisdiction, such term shall be deemed to be deleted from this agreement on condition that if either party considers that any such deletion substantially affects or alters the commercial basis of this agreement it may give notice in writing to the other to terminate this agreement immediately.
7.3 Any notice, document, request, demand or other communication ("notices") to be given for the purposes of this agreement must be in writing. Time is of the essence.
7.4 The Seller may also delay delivery due to force majeure conditions including an act of God, fire, act of government or state, war, civil commotion, insurrection, embargo, prevention from or hindrance in obtaining any raw materials, energy or other supplies, labour disputes of whatever nature and any other reason beyond the control of the Seller.
7.5 The law of New Zealand including the Sale of Goods Act 1908 and its amendments shall apply to this agreement except to the extent expressly negatived or varied by this agreement.
7.6 Interpretation:
“Buyer” means the buyer specified on the Order Form.
a) “Order Form” means the order form and/or tax invoice used by the Seller. If there is a conflict between the order form and tax invoice, the tax invoice prevails.
b) “Seller” means Mace Asset Services Limited as Principal.
c) Headings are inserted for convenience and reference only and shall not affect the meaning or interpretation of this agreement.
8 CONSUMER GUARANTEES ACT 1993
8.1 If the Buyer is acquiring goods from the Seller for the purposes of a business, as defined in the Consumer Guarantees Act 1993, then the Seller excludes the guarantees contained in the Consumer Guarantees Act.
9 RESOLUTION OF DISPUTES
9.1 Consumer arbitration agreement:
a) This agreement contains an arbitration agreement.
b) You, if purchasing as a consumer as defined in the Arbitration Act 1996, certify that: having read and understood the arbitration agreement, and the variation of the default rules in the 2nd Schedule to the Arbitration Act 1996, you agree to be bound by the arbitration agreement.
9.2 If the parties are unable to resolve any question, dispute of difference arising under this agreement, by discussion and negotiation, the dispute must be submitted to the arbitration of a single arbitrator agreed on between the parties, or in default of agreement, to be nominated by the president of the New Zealand Law Society PROVIDED HOWEVER that the Seller has the right to refer any dispute to the Disputes Tribunal for determination in which case the total amount in respect of which an order of the Tribunal is sought will not exceed $7,500.00.
