Terms of Business
Kerrick Industries Limited ("Kerrick") will supply the Customer ("the Customer") all goods and services in accordance with these terms of business. By placing or confirming an order, the Customer accepts these terms of business.
- These terms of business and any terms written on the invoice issued by Kerrick constitute the entire agreement between the parties except to the extent Kerrick and the Customer agree in writing. Any additional terms written on an invoice will prevail to the extent of any inconsistency with these terms of business.
- If the terms of the Customer's order for goods are different from these terms of business, then delivery of the goods to the Customer constitutes an offer by Kerrick to sell the goods to the Customer on these terms of business, and acceptance of the goods by the Customer will be acceptance by the Customer of these terms of business.
- The price for the goods is set out in the invoice issued by Kerrick. The price for services is the price in the written quotation provided to the Customer by Kerrick, or if no written quotation is provided, Kerrick's then current prices for services ("the Price").
- The Customer will pay all taxes (including, without limitation, goods and services tax payable under the Goods & Services Tax Act 1985), customs duties, and any other charges levied by any central or local authority, either directly or indirectly, upon the goods and services or upon freight charges (if any) in respect of the goods and services.
- Kerrick may increase the Price if any of the taxes, duties or charges listed in clause 4 are levied or varied before delivery of the goods.
- Where the Customer orders goods, subject to clause 10, Kerrick will invoice the Customer on the date it delivers the goods to the carrier or when Kerrick notifies the Customer the goods are ready for collection. Unless otherwise stated, the Customer will pay all costs of delivery of the goods to the Customer.
- Where the Customer orders services, Kerrick will invoice the Customer upon completion of the services.
- The Customer must pay Kerrick for all parts and materials specifically procured by Kerrick for the Customer as part of any services supplied by Kerrick.
- All payments must be made in cash unless otherwise agreed. Cash payments are due, in the case of delivery of goods, on dispatch, or in the case of delivery of services, on the date of the invoice for those services.
- Any additional payment terms must be agreed in writing prior to dispatch of the goods or commencement of services. Where credit is given, such credit strictly requires payment by the 20 th of the month following the month in which the goods or services were invoiced. Kerrick may terminate a credit arrangement with the Customer, if at any time, it considers the Customer's credit to be unsatisfactory.
- Kerrick may, in its sole discretion, require payment prior to delivery of the goods or services, or require that the Customer provide satisfactory security for payment prior to delivery of the goods or services.
- If Kerrick believes that the Customer may not make any payment when due, then Kerrick may suspend or cancel any services it is undertaking for the Customer or any delivery due to the Customer. Kerrick may suspend services or delivery of goods, or cancel an order for goods or services if the Customer becomes insolvent or bankrupt, calls a meeting of creditors, or goes into liquidation, voluntary or otherwise .
- If any money owed by the Customer to Kerrick is not paid on the due date, the Customer will pay interest on that amount at the rate of 15% per annum to Kerrick until the amount outstanding is actually paid. The Customer agrees to pay, on demand, all costs (including legal costs and expenses) incurred by Kerrick, or Kerrick's agents, relating to the recovery of any outstanding amounts payable by the Customer under an invoice.
Variation of Order
- The Customer may not cancel or vary an order for goods or services once it has been placed with Kerrick, unless agreed in writing by Kerrick.
- If Kerrick accepts a request by the Customer to vary the quantity of the goods ordered, Kerrick may, in its sole discretion, vary the Price of the individual goods ordered .
- If Kerrick undertakes services for an hourly rate, up to a maximum Price agreed with the Customer, and Kerrick is unable to complete the services within the agreed maximum Price, or the Customer requests additional services, Kerrick will cease providing the services once it has reached the agreed maximum Price unless or until the parties agree to an amended Price for the additional services.
Delivery of Goods
- Delivery of the goods will occur :
- when Kerrick (or Kerrick's agent) gives possession of the goods to the carrier; or
- (if Kerrick effects delivery to the Customer) when the Customer (or the Customer's agent) is given possession of the goods (loading is at the Customer's risk) .
- All goods will be at the Customer's risk upon delivery by Kerrick, and the Customer must have sufficient risk insurance to cover its interest as bailee of the goods and Kerrick's interests as owner of the goods under clause 21 .
- The Customer must inspect the goods immediately upon delivery and :
- if the quantity or description of the goods is not consistent with the quantity or description of the goods ordered by the Customer, the Customer must inform Kerrick immediately. The Customer will give Kerrick a reasonable opportunity to investigate the claim and if the claim is verified by Kerrick, Kerrick will rectify the error and the Customer will have no further claim against Kerrick in relation to that order;
- if any goods are damaged, the Customer must inform Kerrick immediately to enable Kerrick to make a claim against the carrier on the Customer's behalf. For the avoidance of doubt, Kerrick will have no liability to the Customer for any damage caused by the carrier .
- If for any reason whatsoever Kerrick accepts goods returned by the Customer, the Customer will pay to Kerrick 20% of the Price as a handling charge.
Retention of Title of Goods
- Kerrick retains title and ownership (both legal and equitable) in all goods delivered to the Customer by Kerrick and title will not pass from Kerrick to the Customer (and the Customer is bailee only in respect of those goods) until the Customer pays all invoices for the goods supplied by Kerrick, in full.
- The Customer may not dispose of the goods until they are paid for in full unless Kerrick consents in writing. If Kerrick consents to the disposal of the goods, the moneys resulting from a sale are to be specifically earmarked and placed into a separate account in trust for Kerrick, and held until the goods are paid for in full.
- Kerrick may, if the Customer is in default in payment for the goods, retake possession of the goods without notice, without being liable for any losses incurred or damage sustained by the Customer as a direct or indirect consequence of Kerrick retaking possession of the goods. The Customer agrees that Kerrick has access to its premises for the purpose of retaking possession of the goods. The Customer acknowledges that Kerrick has the right to resell any of the goods of which it has retaken possession.
- Kerrick will have all of the rights outlined in clauses 21 to 23 notwithstanding that the Customer defaults, commits an act of bankruptcy, has a receiver appointed for its business, or goes into liquidation.
- Any delivery date for goods, or completion date for services agreed by Kerrick is approximate only, and no delay in the delivery of goods or services will entitle the Customer to cancel its order.
- Kerrick will not be liable for failure to deliver or delayed delivery of the goods or services, where such failure or delay is caused by an event beyond the reasonable control of Kerrick, including but not limited to:
- fires, floods or other calamities;
- wars, riots, civil uprising, embargoes, government regulation, or Kerrick's inability to obtain necessary materials from its usual source of supply;
- delays in transportation to the Customer, howsoever caused;
- existing or future strikes or other labour troubles affecting production or delivery whether involving employees of Kerrick or employees of others regardless of responsibility or fault on the part of the employer;
- other contingencies of manufacture or delivery whether or not of a class mentioned above.
- Without prejudice to Kerrick's other rights or remedies, where Kerrick services the Customer's equipment, and the invoice for such services has not been paid in accordance with clause 9 or 10 (whichever is applicable) and the Customer has not collected the equipment within 10 days after written notice from Kerrick that the invoice is overdue and equipment is due for collection:
- the Customer's equipment will become the property of Kerrick; and
- any part payment of the invoice will be appropriated firstly for the cost of labour and then to the cost of materials and parts.
Personal Property Securities Act 1999
- The Customer acknowledges that these terms of business creates a security interest ("security interest") (as that term is defined in the Personal Properties Securities Act 1999 ("PPSA")) in the goods and, for avoidance of doubt, the proceeds of sale of the goods. The Customer will, if requested by Kerrick, sign any documents (including any new agreements), provide all necessary information and do anything else required by Kerrick to ensure that the security interest is a perfected security interest (as that term is defined in the PPSA).
- The Customer will not enter into any agreement which permits any other person to register any security interest under the PPSA in respect of the goods, and the proceeds of sale of the goods, without Kerrick's prior written consent.
- If the goods are for the Customer's business use, the Customer agrees (to the extent permitted under the PPSA and unless Kerrick agrees by notifying the Customer in writing), that the Customer will have no rights under Part 9 (Enforcement) of the PPSA. For example, but without limitation, the Customer will have no rights under sections 114(1)(a) and 116 (to receive notice of sale and statement of account), sections 121(2) and 122 (to receive any proposal or object to any proposal to retain the goods), sections 125 and 129 (relating to removal of accessions), and sections 132 and 133 (to redeem the goods or reinstate the contract).
- The Customer waives its right under the PPSA to receive a copy of any verification statement or financing change statement (as those terms are defined in the PPSA).
No Guarantee or Warranty
- Except as provided in clause 35:
- under no circumstances is Kerrick liable for any claim, action, demand, suit, loss, legal fee or other cost or expense of any kind arising, directly or indirectly, from the use or inability to use any goods, or any equipment serviced by Kerrick;
- no warranties are given by Kerrick in respect of goods or services supplied whether in respect of quality, fitness for intended purpose, or otherwise and all warranties implied by law are expressly excluded.
- Kerrick will not be responsible for any consequential or indirect loss or damage suffered by the Customer arising directly or indirectly as a result of any breakdown, stoppage or failure of the goods from any cause whatsoever, or arising directly or indirectly from the provision of the services by Kerrick.
- If the Customer is acquiring goods or services for the purpose of a business, then all of the guarantees and remedies in the Consumer Guarantees Act 1993 are excluded.
- Any warranty provided by Kerrick to the Customer in relation to goods will be supplied with the goods.
- Notwithstanding any other terms in any warranty provided with the goods, if the Customer uses the goods for a purpose or in a manner other than that for which they were expressly designed (including using domestic products for a commercial use), no warranties in relation to those goods, whether express or implied, will apply.
- If Kerrick is ever liable to the Customer, whether in contract, tort or otherwise, for any loss, damage or injury arising directly or indirectly from any defective or non-complying goods, or the delivery of the services, such liability is, subject to the Consumer Guarantees Act 1993 (if applicable), limited to the replacement of such goods or re-performance of the relevant services and will in no case exceed the value of the defective or non-complying goods or the Price of the relevant services.
- If the Customer fails to pay or fails to comply with any of these terms of business, Kerrick may without prejudice to any other rights it may have cancel any delivery of the goods or services and partially completed work. Kerrick's rights include but are not limited to the recovery from the Customer of Kerrick's costs in providing a quotation, labour and any parts already used by Kerrick in relation to the Customer's order.
- If any provision or part of a provision of these terms of business is held by a court of competent jurisdiction to be illegal, unenforceable or contrary to public policy then these terms of business will be read as if such provision (or any provision) had never been in these terms of business and were severed from these terms leaving the remainder of the terms of business legal, valid and enforceable to the fullest extent permitted by the law.
- Notwithstanding the terms of any warranties, no waiver of any breach or failure to enforce any provision of these terms of business at any time by either party will in any way limit or waive the right of that party to subsequently seek relief for the breach or enforce and compel strict compliance of the provision.
- Kerrick is not bound by any error or omission on any invoice, order form or other document or statement issued by Kerrick.
- These terms of business are governed by the laws of New Zealand and the parties submit to the exclusive jurisdiction of the New Zealand Courts for the resolution of any disputes under these terms .