Terms and Conditions of supply

CROWN EQUIPMENT LIMITED

1. Background
1.1 The Vendor shall supply to the Purchaser all goods, which for the purposes of the Personal Property Securities Act 1999 (the “PPSA”) are described on the first page of this Agreement (the “Goods”), to the Purchaser despite anything that may be stated to the contrary in the Purchaser’s enquiries or on the Purchaser’s orders, subject to the following conditions.
1.2 In these terms and conditions unless the contrary intention appears:
  1. "Purchaser" means the Purchaser listed in the Quotation or Purchase Agreement and in the case of an individual, his, her or their executors or administrators, and in the case of a company includes its successors and assigns;
  2. "Vendor" means Crown Equipment Limited and shall include its successors and assigns;
  3. The word "person" includes any individual, company, corporation, partnership, joint venture, association, trust, organisation or other entity and includes a person's executors, administrators, successors and assigns;
  4. the terms ‘after acquired property’, ‘at risk’, ‘financing statement’, ‘financing change statement’, ‘proceeds’, ‘security agreement’, ‘security interest’ and ‘verification statement’ each have the meaning given to them in the PPSA.
2. Acceptance and Quotations
2.1 To the extent that these terms and conditions of sale are inconsistent with any quotation issued and accepted by the Vendor in accordance with the following sub-clause or any other document which evidences the sale and purchase of the Goods, these terms and conditions will prevail to the extent of the inconsistency.
2.2 All quotations issued by the Vendor will be valid for 30 days only from the date of issue. Any quotation may be withdrawn by the Vendor at any time before acceptance by the Purchaser. Quotations signed by the Purchaser are an offer by the Purchaser to purchase Goods from the Vendor and the Vendor may decline to accept that offer.
2.3 Where the Vendor has accepted the Purchaser’s order, the Purchaser may not vary or cancel the order unless the Vendor agrees in writing.
3. Price
3.1 All orders will be filled at prices current at the date of delivery of the Goods. Prices are subject to change without notice and the Vendor may charge the Purchaser different prices from those stated on any quotation accepted by the Vendor. The Purchaser agrees to pay any price varied pursuant to this clause.
3.2 All prices are exclusive of: GST or other taxes payable on Goods supplied or on any amount payable under clause 4, freight costs; insurance charges and maintenance costs, all of which the Purchaser must pay unless the Vendor agrees otherwise with the Purchaser in writing.
4. Terms of Payment
4.1 Payment is due in cash at the time the Purchaser or the Purchaser’s carrier or agent takes delivery of the Goods unless the Vendor has agreed otherwise with the Purchaser in writing.
4.2 All payments to the Vendor shall:
  1. Be made in the manner specified in the quotation or otherwise as the Vendor may from time to time specify (including by automatic bank authority);
  2. Be paid by the Purchaser duly and punctually (time being of the essence) and without any demand;
  3. Be paid without set off, counterclaim and free of any deductions of any kind;
  4. Be at the absolute risk of the Purchaser until received by the Vendor; and
  5. If by cheque, not be deemed payment until cleared.
 
4.3 The Vendor will apportion payments by the Purchaser to outstanding accounts in such amounts and in such order as the Vendor may determine in its sole discretion.
5. Delivery
5.1 The Purchaser must take delivery of the Goods at the Vendor’s designated warehouse within 7 days of notification by the Vendor that the Goods are ready for delivery.
5.2 Where payment is due by the Purchaser on delivery of the Goods, the Vendor may withhold delivery of the Goods until payment has been made.
5.3 The Vendor will not be liable for any direct or indirect loss, liability, cost, expense, charge or damage to the Goods during transportation even if it may be caused by the Vendor’s negligence or other default.
5.4 Dates given for delivery are stated in good faith but are not to be treated as a condition of sale. If delivery of the Goods is delayed for any reason at all, the Vendor will not be responsible or liable in any way to the Purchaser or any other party for direct or indirect loss, liability, cost, expense, charge or damage suffered due to that delay.
5.5 The Vendor may make delivery by instalments and may cancel delivery of the Goods or any instalments of the Goods without prejudice to the Vendor’s rights to recover all moneys the Purchaser owes the Vendor for deliveries already made.
5.6 Where the Purchaser does not take delivery of the Goods by the delivery date specified or any later date the Vendor agrees on, the Purchaser must pay reasonable storage costs until the Purchaser takes delivery of the Goods. The Vendor will determine the costs of storage and may invoice the Purchaser.
5.7 The Vendor will not accept any claim for discrepancy in orders unless the Purchaser makes written claim to the Vendor within 48 hours of delivery.
5.8 Delivery by the Vendor to a carrier will be deemed to be delivery to the Purchaser.
6. Licences
6.1 The Purchaser must obtain all licences, permits or other authorisations, which may be necessary to enable the Purchaser to perform its obligations under these terms and conditions.
6.2 The Vendor will apply for any licence, permit or other authorisation the Vendor is required to hold or obtain. If the Vendor is unable to obtain any licence, permit or other authorisation the Vendor may cancel the contract for supply with the Purchaser by refunding any money paid by the Purchaser for the purchase price of the Goods without the Purchaser or the Vendor incurring any further liability to each other in respect of these Goods.
7. Specifications
7.1 All descriptive specifications, illustrations, drawings, data, dimensions and weights provided by the Vendor (whether contained in advertisements, price lists, catalogues or otherwise) are approximate only and are intended to be a general description of the Goods. They do not form part of the description of the Goods for the purposes of this contract.
8. Warranties and Conditions
8.1 Where the Purchaser is acquiring or is holding itself out as acquiring the Goods for the purposes of a business, the Purchaser agrees that the Consumer Guarantees Act 1993 does not apply to the supply of the Goods to the Purchaser and that this clause is fair and reasonable in the context of this Agreement.
8.2 With the exception of any express warranty given in this Agreement, the Vendor gives no warranty, representation, undertaking, inducement, statement or condition, whether express or implied, by any statute, at common law or otherwise in relation to the Goods, the condition of the Goods or their capacity or performance or as to the suitability or fitness of the Goods for any purpose or otherwise.
8.3 Goods under warranty must be returned at the Purchaser’s expense, unless the Vendor has agreed otherwise in writing.
8.4 No repair facilities or spare parts will be available in respect of the Goods. The Vendor expressly contracts out of the warranty contained in section 12 of the CGA. The Purchaser warrants that the Purchaser will inform its customer(s) of this exclusion of warranty at or before the time the Purchaser enters into a contract for supply with the Purchaser’s customers.
8.5 The parties each agree, for the purposes of section 5D of the Fair Trading Act 1986 (FTA) that they are contracting out of sections 9, 12A and 13 of the FTA in respect of all matters covered by this Agreement, provided that this clause shall only apply if the Purchaser is acquiring the goods in trade. The parties each had the opportunity to receive advice from a lawyer prior to entering into this Agreement and agree that this clause is fair and reasonable in the context of this Agreement.
9. Ownership and Risk
9.1 Risk in the Goods will pass to the Purchaser on delivery into the Purchaser’s custody or the custody of anyone acting on the Purchaser’s behalf even though ownership in the Goods may not have passed to the Purchaser. The Purchaser must insure the Goods from the time of delivery and, pending payment in full, insure the Goods in the Vendor’s name and the Purchaser’s name for their respective interests.
9.2 The Vendor will retain legal and beneficial ownership of any and all Goods, until the Vendor receives payment in full for them and all other amounts owing to the Vendor, and until the Purchaser has satisfied all obligations the Purchaser owes the Vendor, even though the Vendor may have granted the Purchaser a period of credit.
9.3 The Purchaser holds the Goods as fiduciary bailee and agent for the Vendor and must store the Goods in such a way that they are clearly identifiable as the Vendor’s property. The Purchaser must keep separate records in respect of the Goods, until payment in full has been made.
9.4 The Purchaser will not sell, dispose of or otherwise part with possession of the Goods except that the Purchaser may sell them in the ordinary course of the Purchaser’s business. Where the Purchaser does sell or otherwise dispose of the Goods prior to payment in full, the Purchaser will be deemed to have done so as the Vendor’s agent. The Purchaser must hold the proceeds of sale in a fund separate from the Purchaser’s own money.
10. Default
10.1 Where the Vendor considers the Purchaser may be unable to meet the Purchaser’s payment obligations to the Vendor, the Vendor may, without prejudice to the Vendor’s other rights and remedies, do all or any of the following:
  1. Require the Purchaser to stop selling or otherwise disposing of the Goods;
  2. Demand payment of all or part of any sums due;
  3. Require security for the Purchaser’s obligations before the Vendor makes any further supplies to the Purchaser;
  4. Without notice, withhold deliveries of Goods ordered by the Purchaser.
10.2 Where:
  1. The Purchaser is in breach of any of this Agreement (including failure to make payment on due date); or
  2. The Purchaser becomes insolvent or is adjudicated bankrupt; or
  3. An application is made for the Purchaser’s liquidation or if a liquidator, receiver, or administrator is appointed in respect of the Purchaser’s assets;
  4. The Purchaser enters into, or is likely to enter into, an agreement or arrangement for amalgamation with another company or its creditors; or
  5. The Purchaser no longer carries on business or threatens to stop carrying on business; or
  6. In the Vendor’s sole opinion the Goods are at risk; or
  7. The Purchaser’s ownership or effective control is directly or indirectly transferred or the nature of the Purchaser’s business is materially altered,
then, without prejudice to the Vendor’s other rights and remedies, the Vendor may do all or any of the following;
  1. Where the Purchaser has failed to make payment on the due date shall constitute a breach of these terms and conditions for which the Purchaser will be liable, to compensate the Vendor by immediately making payment of liquidated damages (in addition to the amount due) of interest on the amount due from the due date until the date of payment at a rate equal to five (5) percent above the current overdraft rate which the Vendor has with its principal trading bank, such interest to accrue from the date payment was due until payment is made (including before or after judgment), or
  2. Cancel this and any other contract of supply with the Purchaser; or
  3. In addition to the rights contained in section 109 of the PPSA, the Vendor may recover and/or resell any of the Goods and the Purchaser irrevocably consents to the Vendor, its agents and/or servants to enter any premises where the Vendor believes the Goods are stored at any time without notice. The Vendor may only recover and resell for its own account sufficient Goods to satisfy all unpaid liabilities and the costs of resale. If the Vendor recovers any excess, the Vendor will not be liable in damages to the Purchaser but must account to the Purchaser for the excess; or
  4. The Vendor may appoint a Receiver in respect of the Goods (including the proceeds of the same) supplied to the Purchaser, in these terms and conditions. Any Receiver so appointed may take possession of the Goods and resell them and has (in addition to the powers conferred by the Receiverships Act 1993, at law or otherwise and except to the extent expressly excluded by his or her terms of appointment) all the powers in relation to the Goods to do anything the Purchaser (or a person with absolute ownership of the Goods and carrying on the business for its own benefit) could do and to exercise such powers on such terms and conditions as the Receiver thinks fit.
10.3 The Purchaser will pay all costs and expenses (including costs on a solicitor/client basis and debtor collector’s costs) the Vendor incurs in enforcing or attempting to enforce its rights under this clause. The Vendor may deduct any costs and expenses incurred from the proceeds of sale of any Goods recovered from the Purchaser.
10.4 The Purchaser’s payments will be applied first in reduction of interest, liquidated damages and costs due under the clause, with the balance being applied in reduction of any amounts due under clause 4.
11. Claims for Damaged or Defective Goods
11.1 If the Purchaser returns damaged or defective Goods to the Vendor, the Vendor may at its discretion repair the Goods or make a reasonable allowance on the purchase of replacement Goods from the Vendor provided:
  1. The Purchaser returns the Goods within seven days of delivery at the Purchaser’s cost, together with a copy of the invoice and a claim specifically identifying the defect; and
  2. The Vendor has a reasonable opportunity to investigate the claim.
11.2 If the Purchaser does not comply with the above requirements, the Purchaser will be deemed to have accepted the Goods and the Vendor will not incur any liability whatsoever to the Purchaser in relation to the Goods.
12. Limitation of Liability
12.1 Subject to the limitations of liability contained elsewhere in these terms and conditions, the Vendor’s liability in relation to the supply of the Goods and the Goods themselves is limited to the purchase price of the Goods in respect of which such liability arises. The Vendor has no further liability or responsibility for any direct, indirect or consequential injury, loss or damage whatsoever and howsoever arising.
12.2 The Vendor is not responsible for any damage whatsoever caused either to the Goods supplied or as a result of the malfunction of the Goods if:
  1. The Goods are fitted by unqualified tradespersons or are fitted in an unprofessional manner; or
  2. The Goods are adapted to a use for which they am not specifically intended; or
  3. The Goods are added to or repaired using components not recommended or approved by the manufacturer of such Goods; or
  4. The Purchaser improperly stores or transports the Goods; or
  5. The Goods are damaged whether by fire, improper loading, collision, misuse or by any other means at the Vendor’s premises.
13. Force Majeure
13.1 The Vendor will not be in breach of these terms and conditions because of any failure on the Vendor’s part directly or indirectly due to wars, hostilities, strikes, lockouts, delays or defaults of manufacturers or suppliers, acts of God, delays in transit, lack of skilled labour, legislative, governmental or other prohibitions or restrictions, fire, flood, earthquake or natural disaster or any other cause (whether similar or dissimilar) beyond the Vendor’s reasonable control.
14. Indemnity
14.1 The Purchaser indemnifies the Vendor against any liability for any direct, indirect or consequential injury, loss, liability, cost, charge, expense or damage arising out of:
  1. any act, default or omission of, or any representation made by the Purchaser or the Purchaser’s servants or agents;
  2. any breach of this Agreement by the Purchaser; or
  3. any negligent or wilful act or omission on the part of, or otherwise caused by the Purchaser, its employees, agents, contractors or subcontractors during the term of this Agreement; and
  4. against all claims, costs and proceedings in respect of any direct or indirect damage, liability, loss of life or property or injury that are otherwise caused by the Purchaser or the Purchaser's employees, agents, contractors or subcontractors during the term of this Agreement.
15. Severability
15.1 If any of these terms and conditions is held by a Court to be ineffective because of non-registration, illegality or any other reason, then that term or condition or part of it will be severed from all other terms and conditions without affecting the validity or enforceability of all other terms and conditions or part of them.
16. No Waiver
16.1 No waiver by the Vendor of any term or condition will constitute a waiver of any other of these terms or conditions.
17. Variation
17.1 The Vendor may vary these terms and conditions at any time by notice in writing to the Purchaser.
17.2 The Purchaser may not vary these terms and conditions or assign their rights and obligations under these terms and conditions unless the Vendor agrees in writing.
18. Personal Property Securities Act 1999
18.1 The Purchaser grants to the Vendor a security interest in all present and after acquired Goods supplied by the Vendor to the Purchaser and all proceeds of the Goods for the purposes of the PPSA and as security for the payment for the Goods and any amount owing by the Purchaser to the Vendor from time to time.
18.2 On the Vendor’s request the Purchaser shall promptly execute any documents and do anything else required by the Vendor to ensure that the security interest created under these terms and conditions constitutes and remains a first ranking perfected security interest over the Goods. The Purchaser will also provide the Vendor with any information the Vendor reasonably requires to complete a financing statement or a financing change statement.
18.3 The Purchaser will pay all costs, expenses and other charges incurred, expended or payable by the Vendor in relation to the filing of a financing statement or a financing change statement in connection with these terms and conditions. The Purchaser waives any right to receive a copy of a verification statement under the Act.
18.4 The Purchaser shall notify the Vendor in writing of a change of name at least 14 days prior to the date on which the change of name becomes effective.
18.5 The Purchaser agrees that nothing in sections 114(1) (a), 133 and 134 of the PPSA shall apply to these terms and conditions.
18.6 The Purchaser agrees that its rights as debtor in sections 116, 120(2), 121, 125, 126, 127, 129, and 131 of the PPSA shall not apply to these terms and conditions.
18.7 Where the Vendor has rights in addition to those under Part 9 of the PPSA those rights shall continue to apply.
18.8 The Purchaser will not allow a security interest to be created or registered over the Goods in priority to the security interest held by the Vendor.
19. Set-Off
19.1 At all times, the Vendor shall have and be entitled to a right of set-oft for money owed to the Purchaser by the Vendor against any money owing to the Vendor by the Purchaser on any account howsoever arising. The Purchaser shall have no such right.
20. Acknowledgement
20.1 The Purchaser acknowledges that it has received a copy of these terms and conditions and in particular that these terms and conditions constitute a “security agreement” for the purposes of the PPSA and that the Vendor may register a financing statement in respect of these terms and conditions.
20.2 These terms and conditions govern the supply of Goods by the Vendor to the Purchaser and (unless otherwise agreed in writing) each supply or sale of the Goods will be subject to the terms and conditions contained herein and in the event of any conflict between these terms and conditions and any other document that evidences the sale or supply of the Goods or any other document these terms and conditions will prevail.
21. Use of Information
21.1 The Purchaser authorises the Vendor to collect, retain and use any information about the Purchaser, or for the purpose of assessing the Purchaser’s credit worthiness, enforcing any rights under these terms and conditions, or marketing any Goods provided by the Vendor to any other party.
21.2 The Purchaser authorises the Vendor to disclose any information obtained to any person for the purposes set out in clause 21.1.
21.3 Where the Purchaser is a natural person the authorities under clause 21.1 and 21.2 are authorities or consents for the purposes of the Privacy Act 1993.
22. Warranty
22.1 The Purchaser acknowledges that the Vendor has entered into this Agreement on the basis of information supplied to the Vendor by the Purchaser and warrants that the information is accurate.
23. Assignment
23.1 The Purchaser shall not assign any of its rights or interests or any part thereof under this Agreement to any person at any time. For the purposes of this clause, any direct or indirect change in the shareholding of the Purchaser (if a company) or in the members of the Purchaser (if a partnership or other body) shall be deemed to be an assignment. The Vendor may at any time assign its rights or interest or any part thereof under this Agreement (whether absolutely, or by way of mortgage) or transfer its obligations or any part thereof, to any person.
24. Governing Law
24.1 All contracts made under these terms and conditions will be subject to New Zealand law and the parties submit to the exclusive jurisdiction of the New Zealand Courts.