P&S TRADING COMPANY LIMITED
1.1 In these terms and conditions and in any Contract to which these terms and conditions apply, unless the context otherwise requires:
1.1.1 Company means P&S Trading Company Limited, with company number 5873231, at Christchurch and includes its successors or assigns;
1.1.2 Contract means a contract for the supply of Goods by the Company to the Customer, comprised of these Terms and a Purchase Order accepted by the Company;
1.1.3 Customer means the purchaser of the Goods from the Company;
1.1.4 Goods means the goods sold or to be sold by the Company to the Customer under a Contract;
1.1.5 Purchase Order means an order for the Goods placed by the Customer whether by phone, email or other manner as agreed with the Company;
1.1.6 Terms means these terms and conditions, to be read and construed with each Purchaser Order accepted by the Company; and
1.1.7 Working Day means a day which is not a Saturday, Sunday or a Public Holiday in Christchurch and on which registered banks are open for general banking business in Christchurch, New Zealand.
1.2 Unless the Company and the Customer otherwise expressly agree in writing these Terms and the terms as set out in any applicable Purchase Order will apply to all sales of Goods and no other terms or conditions will apply.
1.3 These Terms supersede any previous terms agreed to by the parties, and the Customer’s terms of trade.
2. Supply of Goods
The Company will supply the Goods to the Customer and the Customer will purchase the Goods from the Company as described in the Purchase Order in accordance with these Terms.
3. Purchase Orders
3.1 Each Purchase Order shall be deemed to be a separate offer by the Customer to purchase the Goods, which the company will be free to accept or decline at its absolute discretion. A Purchase Order will only be binding on the Company once it gives notice to the Customer that it accepts the Purchase Order.
3.2 The Company reserves the right to correct any typographical or clerical errors contained in the prices or specifications in the Purchase Order.
3.3 Any price contained in the Purchase Order does not include any subsequent variations or changes requested by the Customer.
4. Delivery and Risk
4.1 The Customer will be responsible for the cost of and arranging freight of the Goods from the Company’s premises, unless otherwise agreed by the parties.
4.2 Unless otherwise agreed in writing by the parties, risk in the Goods will pass from the Company to the Customer when the Goods leave the Company’s address.
4.3 Delivery will be deemed to have occurred upon the Goods leaving the Company’s address unless otherwise agreed by the parties. The Customer will insure the Goods for their full insurable value from the time of delivery.
4.4 If the Customer fails to pick up or accept delivery, the Goods will be deemed to have been delivered when the Company was willing to deliver them. The Company may charge storage, transportation costs and all related expenses if the Customer refuses to accept delivery.
4.5 If the Goods are held by the Company on behalf of the Customer, risk is deemed to have passed to the Customer when the Goods would otherwise have been able to be delivered.
5.1 Until the Company has been paid in full for the Goods, the Company and the Customer agree that:
5.1.1 title in the Goods remains with the Company;
5.1.2 the Company and its agents or servants may, upon giving reasonable notice, enter premises occupied by the Customer to search for and remove any of the Goods supplied by it, without in any way being liable to the Customer or any person claiming through the Customer;
5.1.3 if the Company exercises its right to reclaim the Goods it shall be entitled to dispose of them as it sees fit. The Customer will indemnify the Company for any costs incurred by the Company in reclaiming the Goods, including any shortfall incurred by the Company in realising the Goods; and
5.1.4 if the Goods or any part of them are sold or disposed of by the Customer, the Customer will be deemed to have done so as agent for the Company and the proceeds of such sale will be held on trust for the Company.
5.2 The Customer agrees, if required by the Company, to store the Goods separately to enable them to be identified.
5.3 If the Company takes possession of Goods in accordance with this clause, the Company may sell or dispose of goods in such manner and generally on such terms and conditions as it sees fit.
6.1 The Company will be entitled to invoice the Customer for each Purchase Order in advance of delivery, or at such other times as the parties may agree.
6.2 Payment will be made to the Company by the Customer in advance of delivery, as set out in the invoice.
6.3 The Customer will pay the full amount owing to the Company on the due date (including Goods, freight and any GST), without set-off and free of any deductions.
6.4 Unless otherwise specified, all prices in the invoice are in New Zealand Dollars, excluding GST and freight (if any).
6.5 If full payment for the Goods is not made on the due date, then without prejudice to any other remedies available:
6.5.1 the Company may cancel or withhold supply the Goods;
6.5.2 the Company may charge interest on monies overdue, accruing on a daily basis and to be calculated at the rate of 15% per annum during such default; and
6.5.3 the Customer will be responsible for all costs incurred by the Company in recovering such monies.
6.6 The Company may require that the Customer pay to the Company a deposit of [no more than 30%] of the total purchase price of the Goods to be provided under the Purchase Order. Any deposit required by the Company is non-refundable.
6.7 Before supplying the Customer with Goods, the Company may, in its sole discretion require all or any of the following: payment in advance, a guarantee of payment, progress payment or a letter of credit.
7. Suitability and Compliance of Goods
7.1 It is the sole responsibility of the Customer to:
7.1.1 satisfy itself as to the condition and quality of the Goods for its purposes including performance of the Goods in their ultimate application and working environment and the Customer accepts the Goods on this basis; and
7.1.2 ensure that the Goods comply with any power, safety, fire, health or other regulations applicable to the use of the Customer’s equipment and/or services in its actual working environment and jurisdiction.
7.2 Notwithstanding clause 8, and to the fullest extent permitted by law, the Company shall not be liable for any electrical or mechanical faults in respect of the Goods.
8.1 Subject to clause 9, the Company warrants to the Customer that the Goods will be free from manufacturing defects for a period of 12 months from the date of delivery.
8.2 The Customer warrants to the Company that it is solvent and able to pay its debts as they become due and is properly authorised to enter into this document and each Contract.
9. Exclusion of Warranties and Liability
9.1 To the fullest extent permitted by law and except to the extent expressly provided in clause 8, all warranties and representations including those expressed or implied by law, in respect of Goods are excluded.
9.2 The Company gives no representation or warranty whatsoever as to the condition or quality of the Goods or as to their suitability or fitness for their ordinary or special use or purpose.
9.3 Notwithstanding any other provision of these Terms, the Company shall not be liable:
9.3.1 where the Customer has altered or modified the Goods or have subjected them to any unusual or non-recommended use, storage or handling; or
9.3.2 for loss caused by any factors beyond the reasonable control of the Company, including environmental damage; or
9.3.3 external causes, including accident, abuse or misuse;
9.3.4 normal wear and tear, an act of God, fire, flood, earthquake, war, act or violence or any similar occurrence;
9.3.5 for any indirect or consequential loss of any kind; or
9.3.6 where the terms of any written warranty have not been complied with, or any Company instructions (including as to storage or handling) not complied with.
9.4 In the event that the Company is found to be liable under any Contract (including for rejected Goods), the Company’s total liability is limited to either (at the Company’s election):
9.4.1 replacing the defective or damaged Goods; or
9.4.2 refunding the price of the defective or damaged Goods.
9.5 In the event that a Customer wishes to make a claim under the Warranties, the Customer must contact the Company within the warranty period as set out in clause 8.1, detailing the reason for the claim.
9.6 If the Company agreed that the Warranties apply, any Goods returned to the Company must be returned with freight paid. Where the Company elects to replace defective Goods, the Company will use reasonable endeavours to replace the Goods, as soon as practical, but will not be liable for any delay in replacing the Goods.
9.7 The Company will not accept the return of any Goods unless they are defective Goods or with the express written consent of the Company.
10.1 The Customer may not cancel any Purchase Order for Goods or part of it without the Company’s prior written consent.
10.2 The Company may, without incurring liability, cancel a Contract if:
10.2.1 the Customer becomes insolvent, enters into a scheme of arrangement with creditors (other than with the Company’s prior consent) or ceases or threatens to cease to carry on all or a material part of its business, or has a receiver or administrator appointed in respect of any or all of its assets or other steps are taken for its dissolution;
10.2.2 either party is refused any licences, consents or permits in respect of the Goods;
10.2.3 an extraordinary event occurs or a material change affecting the affairs or the financial condition of the Customer occurs, which gives the Company reasonable grounds to conclude that the Customer may not, or may be unable to, perform or observe its obligations under a Contract; or
10.2.4 the Customer breaches any of these Terms and fails to remedy such breach within five Working Days of receiving written notice of such breach.
11.1 To the fullest extent permitted by law, the Customer indemnifies the Company against all costs, claims, demands, expenses and liabilities of whatsoever nature, including without prejudice to the generality of the foregoing damage to property and consequential loss (including loss of profits or intellectual property), which may be made against the Company or which the Company may sustain, pay or incur as a result of or in connection with the supply of Goods, unless such cost, claim, demand, expense or liability shall be directly and solely attributable to the negligence of the Company or the negligence of a duly authorised employee or agent of the Company.
11.2 In the event the Company is held to be liable to the Customer, clause 9.4 will apply.
12. Intellectual Property and Confidentiality
12.1 Any confidential information received by the Company from the Customer shall be used solely for the supply of Goods under a Contract.
12.2 The Customer warrants not to use any of the Company’s intellectual property or confidential information other than with the written consent of the Company.
13. Consumer Guarantees Act 1993
The parties agree that the Goods are acquired or performed for the purposes of a business and that the Consumer Guarantees Act 1993 does not apply.
14. Personal Property Securities Act 1999 (PPSA)
14.1 The Contract constitutes a security interest in all the Customer’s present and after acquired personal property including the Goods supplied by the Company to the Customer for the purposes of the Personal Properties Securities Act 1999 as amended or replaced from time to time.
14.2 The Company can register or perfect the security interest recognised under clause 14.1 in any means possible in the jurisdiction of the Customer (and any other jurisdiction the Company deems necessary or desires) to ensure that the Company has an enforceable security interest against the Customer in the Goods and all amounts due under the Contract, including any future amounts.
14.3 The Customer agrees to promptly execute and deliver to the Company all assignments, transfers and other agreements and documents and do anything else which the Company may deem appropriate to ensure that the Company’s security interest over the Customer is enforceable, perfected and otherwise effective, or give any notification in connection with the security interest to obtain the priority required by the Company and enable the Company to exercise its related rights, or register (and renew registration) a financing statement for a security interest in favour of the Company.
14.4 Everything the Company is required to do under clause 14.3 above is at the Customer’s expense. The Customer agrees to pay or reimburse the Company for any or all of those costs.
14.5 To the extent that Part 9 of the PPSA applies:
14.5.1 the Customer agrees that the provisions of sections 114(1)(a), 120, 122, 133 and 134 of the PPSA which are for the Customers benefit, or place any obligations on the Company in the Customers favour, shall not apply; and where the Company has rights in addition to those in Part 9 of the NZPPSA, those rights shall continue to apply; and
14.5.2 without limiting anything in the previous paragraph, the Customer hereby waives its rights under sections 116, 120(2), 121, 125, 126, 127, 129 and 131 of the PPSA, and its rights to receive a copy of a verification statement under section 148 of the PPSA in respect of any financing statement or financing change statement registered by the Company.
15.1 The Customer agrees that the Company may collect, hold, use and disclose personal information in respect of the Customer, its directors, shareholders, staff or clients, for the purpose of enforcing its rights and carrying out its obligations under these Terms.
15.2 The Company may also collect, hold, use and disclose personal information for the purpose of keeping the Customer up to date with its services (i.e. marketing), any purpose advised to the Customer at the time of collection, or as otherwise permitted under the Privacy Act 1993. Where the Customer provides information relating to any individual, the Customer will ensure it has all relevant consents required for such purposes.
15.3 Where personal information is held by the Company, the individual shall have the right to request access to, and correction of, such personal information.
16.1 Negotiation: If a dispute arises (Dispute) between the parties in relation to the supply of Goods then the parties will endeavour to settle the Dispute by way of good faith negotiation. If the parties are unable to resolve the dispute within five Working Days, the Dispute shall be resolved in accordance with clause 16.2.
16.2 Mediation: In the event that the Dispute is not resolved by negotiation, the matter may be referred to mediation by any party by written notice. In the event that the matter is referred to mediation, the parties shall agree within five Working Days of the matter being referred to mediation on a mediator. In the event the Dispute is not resolved by a completed mediation within a further 20 Working Days, any party may refer the matter to arbitration.
17.1 If any part of these Terms is held to be unenforceable, the part concerned will be deleted or modified to the minimum possible extent necessary the remainder of the Terms enforceable will remain in force.
17.2 No delay or failure by the Company to exercise its rights under a contract operates as a waiver of those rights.
17.3 The Customer may not assign or transfer any of its rights or obligations under or in connection with any Contract to any third party without the prior written consent of the Company
17.4 The Company reserves the right to assign, transfer or sub-contract the performance of the Contract or any part of the Contract to any other party or person.
17.5 Variations to any Contracts must be agreed in writing between the parties. The Company may amend these Terms from time to time by giving the Customer notice in writing of such amendments. Amendments to these Terms will be effective and binding as between the parties in respect of any Purchase Order places after the time the updated Terms are notified to the Customer.
17.6 The Customer agrees that the Company may obtain information about the Customer from any source including credit assessment and debt collecting and the Customer consents to any person providing the Company with such information. If reasonably required by the Company, the Customer will procure any director, shareholder, partner or guarantor of the Customer to consent to a credit check being performed on that person and the Customer will procure such person to sign any necessary consent form reasonably required by the Company for such purpose.
17.7 The Customer will pay all costs and expenses (including legal fees) incurred by the Company in exercising any of its rights under any Contract.
17.8 Any notice given by one party to the other will be deemed to have been delivered 48 hours after posting to the recipient’s registered office or last known address and immediately, if forwarded by facsimile or email.
17.9 All Contracts made between the Company and the Customer will be governed by and construed in accordance with the laws of New Zealand and the Customer agrees to submit to the non-exclusive jurisdiction of the New Zealand Courts.
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