DEFINITIONS
1.1 “The Company” means Electrical Supply Corp Ltd trading as Globelink.
1.2 “The Customer” means the party to which any quotation, confirmation of order, packing slip or invoice incorporating these conditions is directed.
1.3 “Products” means products, goods or services, supplied by the Company.
2. APPLICABILITY OF CONDITIONS
2.1 All quotations are made and all orders are accepted subject to these conditions and any terms or conditions inconsistent with or in any way qualifying these conditions shall not apply unless expressly accepted by the Company in writing. All other terms, conditions, warranties or representations whatsoever are excluded from the contract or any variation thereof unless expressly accepted by the Company in writing.
2.2 In the event of a conflict between these conditions and the specific terms and conditions of quotation then the latter shall prevail.
2.3 The contract is between the Company and the Customer as principals and is not assignable by the Customer without the written consent of the Company.
3. QUOTATIONS
3.1 Unless otherwise stated therein quotations shall be available for acceptance for a maximum period of 30 days from the date of issue and may be withdrawn by the Company within such period at any time by written or oral notice.
3.2 Orders are accepted subject to the Company receiving any necessary licence to purchase or to use the required raw materials and to the Company being able to obtain such raw materials.
4. DELIVERY
4.1 Time for delivery is given as accurately as possible and the Company will use its best endeavours to meet estimated delivery times. The Customer shall have no right to damages or to cancel the order for failure for any cause to meet any delivery time stated.
4.2 The date of delivery shall in every case be dependent upon prompt receipt of all necessary information, instructions or approvals from the Customer. Alterations to instructions by the Customer may result in a delay in delivery.
4.3 Failure by the Customer to take delivery of or to make payment in respect of any one or more instalments of Products delivered hereunder shall entitle the Company to treat the whole contract as repudiated by the Customer.
4.4 (a) Where a period is named for delivery and such period is not extended by consent in writing from the Company, the Customer shall take delivery within that period.
(b) If the Company does consent in writing to the Customer’s request for the postponement of delivery or where delivery is, Customer shall take delivery within that period postponed otherwise than due to default by the Company the Customer shall pay all costs and expenses including a reasonable charge for storage and transportation occasioned thereby and payment for the products shall become due and payable in accordance with these conditions.
4.5 Any packaging supplied by the Company unless otherwise expressly agreed is intended to provide adequate protection throughout normal conditions of transit of usual duration.
4.6 Freight will be charged on all orders under $200 (excluding gst) except in special circumstances.
5. RISK AND TITLE
5.1 Risk in the Products shall pass to the Customer so that the customer is responsible for all loss, damage or deterioration to the Products:
(a) If the Company delivers the Products by it’s own transport at the time when the Products are delivered to the point of delivery:
(b) In all other circumstances at the time when the Products or a relevant part thereof leave the Company’s premises whether or not the Company arranges transport, and where the Products are delivered by carrier any claims for loss or damage in transit must be made by the Customer against the carrier in accordance with the carrier’s conditions (i.e. within 24 hours).
5.2 Title to the Products or any relevant part thereof shall only pass to the Customer upon the happening of the earlier of the following events:
(a) the Customer has paid to the Company all sums due and payable by it to the Company under this contract: or
(b) when the Company serves on the Customer notice in writing specifying that title in the Products or such part thereof has passed.
5.3 The Company may recover Products in respect of which title has not passed to the Customer at any time and the Customer hereby licences the Company, it’s officers, employees and agents to enter upon any premises of the Customer for the purpose of either of satisfying itself that condition 5.4 below is being complied with by the Customer or of recovering any Products in respect of which property has not passed to the Customer. The Company, it’s officers, employees and agents shall not be liable for any loss of damage suffered by the Customer or any other person resulting from such entry, and the Customer shall indemnify the Company in respect of any claims which the Company may suffer from any third party in respect thereof.
5.4 Until title to the Products has passed to the Customer pursuant to the terms of these conditions, the Customer shall possess the Products as a bailee of the Company on the terms of this contract. If the Company so requires, the Customer shall store the Products separately from any other goods and shall ensure that they are clearly identifiable as belonging to the Company.
5.5 Without prejudice to the foregoing sub-conditions and in the event that the Customer shall in the course of its business dispose of the Products to a customer being a bona fide purchaser without notice of the Company’s rights then the Customer shall have a fiduciary duty to the Company to account to the Company for the proceeds (which shall be kept separate and identifiable from the Customer’s own monies) but may retain therefrom any excess of such proceeds over the amount outstanding under this or any other prior contract between them.
6. CANCELLATION AND RETURNS
6.1 Cancellation will only be accepted by the Company on condition that all costs and expenses incurred by the Company up to the time of cancellation and all loss of profits and other loss or damage suffered by the Company as a result of such cancellation will be paid forthwith by the Customer to the Company.
6.2 No products shall be returned to the Company except where the following conditions are complied with:
(a) Products can only be returned within 14 days of the date of receipt by the Customer, and only with the prior consent of the Company, which shall be at the Company’s sole discretion.
(b) Returned Products must show the original invoice number and date.
(c) All costs of return transportation of the Products must be met by the Customer.
(d) No Products shall be credited until all charges in respect thereof have been paid by the Customer.
(e) The Products must be returned in “as new condition” and in original packaging where applicable.
(f) Non-stock items which are bought in, cannot be returned without prior approval and may attract a re-stocking fee.
7. PRICES
7.1 Unless otherwise stated, all prices are quoted as ex the Company’s premises, exclusive of goods and services tax and all other taxes, levies or duties and are subject to fluctuation in the event of any increase in the cost of materials or overheads and the Company may alter any price quoted on account of such increases during the contract period. The Customer will pay all goods and services tax in addition to the quoted prices.
7.2 In the event of any alteration in design or specification being requested by the Customer and agreed to by the Company, then the Company shall be entitled to make an adjustment of the contract price corresponding to such alteration.
8. TERMS OF PAYMENT
8.1 Unless otherwise agreed by the Company in writing, the terms of payment shall be settlement in full by the 20th day of the month following the month in which the Products were dispatched or would have been dispatched, save for postponement otherwise than due to default on the part of the Company. The Company shall be entitled to submit it’s invoice on the same date as it’s delivery advice note or at any time thereafter save that where delivery has been postponed at the request of or by the default of the Customer then the Company may submit it’s invoice at any time after the Products are ready for delivery or would have been ready in the ordinary course but for the request or default as aforesaid.
8.2 Any expenses, disbursements and legal costs incurred by the Company in the enforcement of any rights contained in this contract shall be paid by the Customer, including any reasonable solicitors fees or debt collection agency fees.
8.3 No disputes arising under the contract nor delays beyond the reasonable control of the Company shall interfere with prompt payment in full by the Customer.
8.4 In the event of default in payment by the Customer the Company shall be entitled without prejudice to any other right or remedy to suspend all further deliveries on any contract or contracts between the Company and the Customer without notice and to charge interest on any amount outstanding at the rate of 2% per annum above the current overdraft rate charged by the Company’s bankers in force at the time when payment was due.
8.5 If the Customer shall become bankrupt or is unable to pay it’s debts as they fall due or compounds with creditors or in the event of a resolution being passed or proceedings commenced for the winding up or liquidation of the Customer (other than for a voluntary winding up for the purpose of reconstruction or amalgamation approved in advance by the Company) or if a receiver or manager is appointed of all or any part of it’s assets or undertaking of the Customer, the Company shall be entitled to cancel the contract in whole or in part by notice in writing without prejudice to any right or remedy accrued or accruing to the Company.
9. DIMENSIONS AND SPECIFICATIONS
9.1 The Company reserves the right to alter or change dimensions and specifications of the Products supplied within reasonable limits having regard to the nature of the Products. Dimensions and specifications specified by the Company are to be treated as approximate only unless the Customer specifically states in writing that exact measurements and specifications are required.
10. LOSS/SHORTAGES AND DEFECTS APPARENT ON INSPECTION
10.1 Subject to clause 13 the Customer shall have no claim for loss, shortages or defects apparent on visual inspection unless:
(a) the Customer inspects the Products on the first working day following their arrival at it’s premises or other agreed destination; and
(b) a written complaint specifying the loss/shortage/defect is made to the Company within the time limits or such shorter period as the carrier’s conditions require:
(i) Partial loss or damage or non-delivery of any separate part of a consignment or part consignment.
(ii) Non-delivery of whole consignment – within 14 days of the date of dispatch;
(c) the Company is given an opportunity to inspect the Products and investigate any complaint before any use of or alteration to or interference with the Products.
10.2 If a complaint is not made to the Company as provided in clause 11.1 the Products shall be deemed to be in all respects in accordance with the contract and the Customer shall be bound to pay for the same accordingly.
10.3 Defects in quality or dimension in any instalment delivery shall not be grounds for cancellation of the remainder of the contract.
11. DEFECTS NOT APPARENT ON INSPECTION
11.1 Subject to clause 13 the Customer shall have no claim in respect of defects not apparent on the visual inspection at the time of delivery envisaged by condition 11 as above, unless:
(a) a written complaint is sent to the Company as soon as reasonably practicable after the defect is discovered and no use is made of the Products thereafter and no alteration made thereto or interference made therewith before the Company is given an opportunity to inspect the Products in accordance with this condition; and
(b) the complaint is sent within 12 months of the date of delivery of the Products or in the case of an item not manufactured by the Company within the guarantee period specified by the manufacturer of such item.
11.2 The Customer shall not be entitled to any claim of any repairs or alterations undertaken by the Customer without the prior specific written consent of the Company nor in respect of any defect arising by reason of fair wear and tear or damage due to misuse.
11.3 The Company shall not be liable for loss or damage suffered by reason of use of the Products after the Customer becomes aware of a defect or other circumstances which should reasonably have indicated to the Customer the existence of a defect.
11.4 The Company may within 15 days of receiving such a written complaint inspect the products and the Customer. if so required by the Company, shall take all steps to enable the Company to do so.
12.WARRANTY
12.1 (a) Where the Customer makes a complaint to the Company in accordance with either clauses 11 or 12, then if it is established that the Products in respect of which the claim is made are faulty or defective, the Company will, at its own cost, either repair or replace the faulty or defective Products provided that the Products have been used in accordance with the Company or other manufacturers instructions and maintenance and other operating procedures laid down in such instructions have been observed.
(b) The Company’s obligations shall in all cases be limited to repair or replacement of defective or faulty Products as described in paragraph (a) above and the Company shall not be liable for any losses, damages, costs or expenses which may be suffered by the Customer or any other person.
(c) Under no circumstances whatsoever shall the Company be liable for any claims arising by reason of death or personal injury or for consequential loss (including removal or rectification work required in connection with installation of repairs or substitute Products) loss of profits, damage to property, wasted expenditure or cost of mitigation.
12.2 In the case of Products not manufactured by the Company, the Company gives no assurance or guarantee whatsoever than the sale of use of the Products will not infringe patent copyright or other industrial property rights of any other person, firm or company.
13. ADVISORY SERVICE
13.1 Any advice or recommendations which the Company may provide in respect of the Products or their use is part of the Company’s sales service and while every effort is made to ensure such advice or recommendations are accurate the Company shall not be liable for any loss, damage or claims arising therefrom.
14. DATA AND TECHNICAL INFORMATION
14.1 The information contained in the advertising sales and technical literature issued by the Company may be relied upon to be accurate only in the exact circumstances in which it is expressed otherwise any illustrations, performance details, examples of installations and all other technical data in such literature are based on experience and upon trials under test conditions and are provided for general guidance only. No such information or data shall form part of the contract unless specifically incorporated therein by the Company.
15. FORCE MAJEURE
15.1 Neither party shall be under any liability for any delay, loss or damage caused wholly or in part by an act of God, government restriction, condition or control or by reason or any act done or not done pursuant to a trade dispute involves its employees or not or by reason of any other act, matter of thing beyond its reasonable control including failure by the other party to carry out the provisions of these conditions.
16. LEGAL
16.1 The contract shall be governed and interpreted exclusively according to the law of New Zealand and shall be subject only to the jurisdiction of the New Zealand Courts to which the parties hereto do agree to submit.
17. PERSONAL PROPERTY SECURITIES ACT 1999 (called the PPSA)
17.1 I/WE, as the Customer, or on behalf of the Customer acknowledge that:
(a) the items contained in this application (including any schedule) and the terms of sale constitute a security agreement for the purposes of the PPSA.
(b) Pursuant to this security agreement the Customer will grant a security interest in all its present and after acquired Products supplied by the Company and their proceeds and agrees that the Company may register a financing statement in respect of any such security interest on the Personal Property Securities Register (PPSR).
(c) No products will be supplied by the Company until this agreement has been signed by the Customer in accordance with the requirements of section 36 of the PPSA and in a manner satisfactory to the Company and the Company is satisfied as to the creditworthiness of the Customer.
(d) The Customer is acquiring Products from the Company for business purposes and, to the extent permitted by law, the provisions of the Consumer Guarantees Act 1993 shall not apply.