ALLOYFOLD TERMS AND CONDITIONS OF SALE AGREEMENT
Pathway Engineering Limited, trading as Alloyfold NZ (Alloyfold NZ, we or us) agrees to supply goods (the Goods) and services (the Services) to you, the Customer, in return for payment of the price for those Goods and Services and according to these Terms. Acceptance of delivery or receipt of any Goods or Services will (notwithstanding any statement to the contrary by you or your employees or agents) constitute acceptance of these Terms. If there is more than one of you, the liability is joint and several.
1 Price and Payment
1.1 All prices exclude GST, any other applicable taxes and duties and insurance/freight/delivery/handling charges not expressly included in the price. You agree to pay these items (as applicable) in addition to the price, whether they are imposed before or after your order.
1.2 Unless otherwise stated, payment of a 50% deposit is required as confirmation of your order, with the balance payable in full prior to delivery of your order. If we allow you credit, payment is due on the 14th day after the date of our invoice. We can impose a credit limit on you (or refuse to allow you any credit) at any time, and alter it at our sole discretion.
1.3 Payment may be made by cheque or direct credit. Payment by credit card will attract a 3.5% surcharge. Alternatively, an irrevocable letter of credit (IRC) can be drawn up to facilitate payments if preferred. Our bank account for direct payments is ANZ Bank, Riccarton Branch 06-0821-0249276-00.
1.4 You must not withhold payment or make any deductions of any nature whether by way of set off (legal, equitable or otherwise), counterclaim or otherwise from any amount you owe us. Any default in payment shall make all money payable by you to us immediately due and we may withhold delivery of Goods and/or provision of Services until you provide payment of all money payable by you to us.
2 Delivery and Risk
2.1 Unless otherwise stated, orders will be shipped from Alloyfold NZ’s Christchurch warehouse. We can arrange a quotation for shipping through our preferred agent if you so request. Where we arrange shipping, full payment of the shipping costs is due upon or prior to shipping.
2.2 Delivery times vary with season and manufacturing commitments. We will make every reasonable effort to meet any delivery deadline you notify us of. However, delay in delivery shall not entitle you to cancel your order.
2.3 Risk in Goods passes to you on Delivery being the time the Goods are dispatched from our premises to you, whether the Goods are delivered to your address by us or uplifted from us by you or by an agent or carrier arranged by you or us.
2.4 If any Goods are damaged or destroyed before property in them passes to you, we are entitled, without prejudice to our other rights or remedies under these Terms (including without limitation the right to receive payment of any balance of the price for the Goods), to receive all insurance proceeds payable in respect of the Goods whether or not the price has become payable under these Terms. Our showing these Terms is sufficient evidence of our right to receive insurance proceeds without any person dealing with us needing to make further enquiries.
3 Security Interest
3.1 Ownership of Goods supplied to you will not pass on Delivery, but will remain with us until we receive full payment in clear funds of all amounts you owe us (whether or not relating to those Goods). We hold a Security Interest in all Goods supplied to you and any proceeds of resale of Goods for payment of all such amounts.
3.2 Until you pay all amounts due to us, you agree to act as a fiduciary of us and to:
(a) Not sell, charge or part with possession of the Goods, other than for their full value in the ordinary course of business;
(b) Not alter, obliterate, or deface the Goods and not alter, obliterate, deface, cover up, or remove any identity mark indicating that the Goods are ours.
(c) Store the Goods in such manner that they are clearly identifiable as our property and keep separate records of the Goods;
(d) Hold the proceeds of the resale of the Goods in trust for us, in a separate and identifiable manner.
3.3 At our request, you must promptly deliver, execute or do (or cause to be executed, delivered or done) any documents, agreements, deeds or other action that we may require from time to time to give effect to these Terms, including without limitation doing anything require to ensure the Security Interest created under these Terms constitutes a perfected Security Interest over the Goods. This includes, but is not limited to, providing any information we request to complete a financing statement or a financing change statement for the Personal Property Securities Register.
3.4 Where you are in default, you agree to us entering your premises or any other place where the Goods are located, or where we reasonably believe that the Goods are located, and taking possession of and selling the Goods even if we do not have priority over other persons having a Security Interest in the Goods. Sections 108 and 120(1) of the Personal Property Securities Act 1999 (PPSA) do not apply to the extent that they are inconsistent with this clause.
3.5 You waive any right to receive a verification statement under the PPSA, and agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these Terms. Your rights as a debtor in sections 116, 120(2), 121, 125-127, 129 and 131 of the PPSA shall not apply to these Terms.
3.6 We may at any stage request such security or additional security from you as we in our sole discretion think fit and shall be entitled to withhold supply of Goods or Services or credit arrangements until such security or additional security is obtained.
3.7 We may issue proceedings to recover payment for Goods notwithstanding that ownership of the Goods may not have passed to you.
4.1 Alloyfold products come with a 1-year replacement warranty against defective parts or workmanship as judged by us, unless otherwise specified on order confirmation. This warranty does not cover abuse or excessive force by you or any third party users and is limited to the replacement of goods to you only and does not extend to consequential loss or damage however suffered. The warranty is void if in our opinion, the Goods have been modified in any way after supply by Alloyfold NZ.
5 Exclusion of Other Warranties and Limitation of Liability
5.1 You acknowledge that you are in trade and are acquiring the Goods or Services for business purposes, and that the guarantees under the Consumer Guarantees Act 1993 and sections 9, 12A, 13 and 14(1) of the Fair Trading Act 1986 do not apply.
5.2 Unless you have rights under the Consumer Guarantees Act 1993 or other legislation, which cannot be excluded or limited, there are no warranties express or implied, except as expressly outlined in these terms. This disclaimer includes implied warranties as to merchantability and fitness for a particular purpose.
5.3 We, our employees and agents shall not be liable to you for any loss or damage arising from delay or failure to perform our obligations due to any matter beyond our reasonable control, nor for any claim for breach of Contract (except, in our case, as provided in clause 5.5 below) or Statute or breach of duty in Tort (including negligence) or for any claim in Equity or otherwise at law.
5.4 Your sole remedy against us shall be limited to breach of contract and the extent of any such liability shall be limited, at our option, to repair or replacement of the Goods, or payment of the cost of repairing or replacing the Goods or acquiring equivalent Goods. If the breach relates to Services the extent of any such liability shall be limited, at our option, to supplying the Services again; or payment of the cost of having the services supplied again. We will not, in any case, be liable for any other losses or damages whether general, exemplary, punitive, direct, indirect or consequential, including loss of business profits.
5.5 No action may be brought against us unless notice of the claim is given to us within 14 days of delivery of the relevant Goods or provision of the relevant Services. We shall be released from all liability unless proceedings are brought in a Court of competent jurisdiction within one year of Delivery or of provision of the Services.
6.1 If you do not pay any monies owed to us (the unpaid monies) by the due date, we may charge penalty interest at a rate of 3% per calendar month calculated daily on the unpaid monies from the due date until payment in full is made (including after as well as before any Court judgment). We may on-charge to you any currency losses we incur as a result of late payment.
6.2 You indemnify us for and pay, on demand, all costs incurred by us (including legal costs on a solicitor-client basis and debt collection costs) in the recovery or attempted recovery of unpaid moneys and/or the enforcement of these Terms or the Security Interest contained in these Terms.
7 Use of information
7.1 We may collect information for the purpose of assessing any application for credit you make, including checking your present and continued credit-worthiness, collecting outstanding debt from you and direct marketing activities (the purposes set out above). You consent to us disclosing information, as well as any default in payment by you, to any credit/debt collection or reporting agency, and to any person we appoint to collect any outstanding debt from you for the purposes set out above.
7.2 If information is provided to any credit/debt collection or reporting agency, they may hold that information and use it to provide credit reporting service, including updating their credit reporting database and providing that information to their other customers. You consent to that use and disclosure. We may request, and any person or organization (including any credit/debt collection or reporting agencies) may provide, information about you to us, both now and in the future, for the purposes set out above. You consent to us seeking that information in the course of our business and disclosure of that information to us.
7.3 If you are an individual, you have the right under the Privacy Act 1993 to see and correct any personal information held by us or any agency about you.
8 General Provisions
8.1 These Terms apply to all transactions where we supply Goods or Services to you. If there is any inconsistency between these Terms and any order terms or any other arrangement with us, these Terms prevail unless otherwise agreed by us in writing.
8.2 If any clause in these Terms is held by any court to be illegal, void or unenforceable, that determination shall not impair the enforceability of the remaining provisions.
8.3 Our contract with you is governed by and shall be construed in accordance with the laws of New Zealand. Both parties submit to the jurisdiction of the NZ Courts. We may review and change these Terms. Each such change will take effect when we notify you of the change.