1. Conditions Paramount
1.1 All goods
are supplied on the basis of these conditions and, in the event of any conflict
between these conditions and the provisions of any document used by the buyer or
any other arrangement between the parties, these conditions shall prevail unless
otherwise agreed in writing signed by both parties.
2. Orders
2.1 All orders are accepted by
Holdfast NZ subject to its ability to supply.
2.2 Prices
advertised are indicative only, and orders will be invoiced at prices current at
the date of delivery.
2.3 Please note prices are exclusive of GST
and are subject to change without notice. On time discount may apply to
accounts.
2.4 Freight and handling charges apply to all orders
under $150 excl gst.
3. Payment
3.1 Invoices are issued on
delivery and are due for payment on or before the 20th of the month following
delivery.
3.2 Any dispute regarding prices must be raised within
seven days of receipt of goods. Failure to do so will invalidate any such
claim.
3.3 If the account consistently falls outside our Terms of
Trade then an on-time payment discount may be applied.
3.4 Should
the account remain unpaid then all attempts will be made by Holdfast to recover
the same. All costs incurred including interest, debt collection fees,
solicitors fees and court costs will be added to the outstanding debt.
4. Delivery
4.1 Any dispute regarding
delivery of goods ordered must be raised within seven days of receipt. Failure
to do so will invalidate any such claim.
5. Risk and Ownership
5.1 Title (both
legal and equitable) in the goods will not pass to the buyer until the goods
have been paid for in full.
5.2 The goods will be at the buyer’s
risk immediately on delivery to the buyer or into the buyer’s custody (whichever
is sooner) and the buyer is responsible for insuring the goods from this time
even though title in the goods may not have passed to the
buyer.
5.3 Until title of the goods passes to the buyer, the
buyer acknowledges that it holds the goods or any products which incorporate the
goods solely as bailee and in a fiduciary capacity.
5.4 In the
event that goods or any products which incorporate the goods sold by the buyer
include goods in respect of which title has not passed to the buyer, the
proceeds of the sale of such goods (or the proportion of the proceeds of the
sale of any such mixed products as most closely equates to the proportion of the
content of the goods in the mixed products) will belong to Holdfast NZ, and the
buyer, in its capacity as trustee of such proceeds, shall account for such
proceeds to Holdfast NZ on demand and in no circumstances later than the
relevant due date. Pending this accounting such proceeds must not be mingled
with any other monies or paid into any overdrawn bank account and shall be held
by the buyer in a separate bank account on behalf of Holdfast
NZ.
5.5 If the buyer makes default in payment or becomes
insolvent, bankrupt, calls a meeting of creditors or goes into liquidation
(voluntary or otherwise) Holdfast NZ reserves the right to enter, and the buyer
irrevocably consents to Holdfast NZ entering, by its servants or duly authorised
agents, on to the buyer’s premises or on to any premises where the goods
are reasonably thought to be stored, without responsibility for any damage
caused, and to repossess and subsequently resell the goods. Any value obtained
will be credited against any amount owing but will not release the buyers
obligations for any remaining balance outstanding.
6. Default by Buyer
6.1 If the buyer
makes default in payment or becomes insolvent, bankrupt, calls a meeting of
creditors or goes into liquidation (voluntary or otherwise), Holdfast NZ
may, notwithstanding any waiver of such default of failure and without prejudice
to its other rights, suspend delivery, cancel any order or require payment
in cash or on delivery of goods, notwithstanding the terms of payment herein
specified.
7. Consumer Guarantees Act 1993
7.1 If
the buyer is acquiring the goods for the purposes of a business, the buyer
agrees that the provisions of the Consumer Guarantees Act 1993 do not apply
to the contract.
7.2 If the provisions of the Consumer Guarantees
Act 1993 do apply to the contract, clause 9 of these conditions shall have no
effect and the responsibility of Holdfast NZ and the rights and remedies of
the buyer in respect of the supply of goods by Holdfast NZ to the buyer shall be
governed by the Consumer Guarantees Act 1933.
7.3 Nothing in
these conditions is intended to have the effect of contracting out the
provisions of the Consumer Guarantees Act 1933 except to the
extent permitted by the Act.
8. Buyer’s Obligations
8.1 Where the
buyer supplies the goods in trade to a person acquiring them for business
purposes, it must be a term of the buyer’s contract with that person that
the Consumer Guarantees Act 1993 does not apply in respect of the
goods.
8.2 Where the buyer supplies the goods to any other person
in the course of trading, the buyer must not give or make any undertaking,
assertion or representation in relation to the goods without Holdfast NZ
prior approval in writing and the buyer must not represent that it is acting as
an agent of Holdfast NZ.
8.3 The buyer agrees to indemnify
Holdfast NZ Ltd against any liability or cost incurred by Holdfast NZ as result
of any breach by the buyer of the obligations contained in this clause
8.
9. Liability of Holdfast NZ
9.1 This
clause applies only where the provisions of the Consumer Guarantees Act 1993 do
not apply to the contract.
9.2 The liability of Holdfast NZ in
respect of any claim or action by the buyer for any remedy or compenstion for
any loss, injury, costs, expenses or damage, (including, without
limitation, consequential loss or indirect damages) arising directly or
indirectly out of the supply of goods by Holdfast NZ to the buyer, or the
failure by Holdfast NZ to supply goods in accordance with the contract, or
otherwise in connection with the goods or any advice, recommendation,
information or services provided by Holdfast NZ, including, without limitation,
any claim or action based on any conditions, warranties, descriptions or
representations whether express or implied by law, trade customor otherwise is
limited to either (at the option of
Holdfast NZ):
9.2.1 The
replacement of the goods supplied or the supply of equivalent goods;
or
9.2.2 The payment of the cost
of replacing the goods or of acquiring equivalent
goods.
9.3 Holdfast NZ gives no warranty of freedom from patent
infringement in relation to the use of any formula, information or advice given
by it.