Carac Group
Terms of trade for goods and services
Goods and Labour Services (“Goods and Services”) supplied by CARAC GROUP (“the Company”) are supplied to the PERSON, PARTNERSHIP OR COMPANY (“the Customer”) for sale on the following terms and conditions:
Terms of Contract between Company and Customer
These terms of contract between the Company and Customer shall apply to all orders accepted by the Company or quotations or tenders approved by the Customer and that these terms and conditions shall prevail and take precedence over any written document or oral message from the Customer and in the case of conflict or dispute between the parties these terms and conditions shall prevail. Where the Company fails to enforce any of the terms and conditions of this contract or fails in any way to exercise its rights under this contract the Company will not be deemed to have waived these rights with respect to any term or condition or right.
The Customer and the Company also acknowledge that these terms of contract constitute a Security Agreement as defined by the Personal Property Securities Act 1999 (“PPSA”). For the purposes of the PPSA, Collateral shall include all Goods and Services and the proceeds thereof. The Customer shall agree not to allow any person to file a finance statement over any of the Collateral secured by this Security Agreement without the prior written consent of the Company.
Definition of Goods and Services
Goods: Goods shall mean machinery, manufactured components, assemblies and patterns, tools or dies made to order.
Services: Services shall mean labour service for technical drawing, testing and inspection, installation, equipment and tool or die servicing or other contracting supplied at an hourly rate or at a quoted fixed cost following written instructions or reasonable oral instructions from the Customer and the Customer shall confirm acceptance of the fixed cost or hourly rate by confirming the Company’s quotation or providing an order.
The quotation or tender for labour and equipment and parts for installation or site preparation and travelling time may also include subcontractors or agents used by the Company to undertake the work on behalf of the Company. The Customer agrees that employees and agents of the Company used in the supply of labour services shall be treated as the property of the Company for the term of this contract and the Customer further agrees to pay the full amount of the contract price if the Customer interferes with the Company use of its employees or agents or cancels the contract and rehires the Company’s employees or agents to complete the contract.
The description given of any Goods to be made for the Customer relating to drawings, weights, loadings and pressure dimensions and any other descriptive matter has been given by way of identification only and the use of such description shall be the responsibility of the Customer as to fitness for purpose and does not constitute this contract as a sale by description and binding upon the Company unless the quotation or tender describes the terms as being a sale by description.
Quotations and Price
The Company shall quote a cost for Goods and Services in its quotation or tender following instructions from the Customer and the Customer shall confirm the cost by signing an order to the Company or signing the Company’s quotation or tender. Quotations shall be valid for (30) thirty days but the Company may withdraw any quotation or tender before the Customer signs acceptance.
No order arising out of the acceptance by the Company of a quotation or tender shall be cancelled without the consent of the Company, and in such cases the Customer will be liable to pay the Company all costs and expenses incurred by the Company in fulfilling the order to the date of cancellation; and if parts and materials cannot be cancelled from the original manufacturer the Customer will be held liable for the cost of the parts and materials in total.
The quotation or tender price shall be net of GST and may be increased if the Company suffers any cost increases which are beyond its control in the supply, production and delivery of Goods and Services (including materials and parts costs due to currency changes) between the date of contract and the date of delivery, where the Company can supply written evidence of such cost increases or if the Customer varies or alters its requirements for the Goods and Services.
Variations and alterations may result from changes to instructions from the Customer requiring a changed basis for the cost of Goods and Services OR additional parts, materials or drawings.
The Company agrees to pass on cost reductions to the Purchaser that may result upon completion of supply.
For the sale of Goods or Services to Companies or Incorporations not registered in New Zealand the price shall be the quotation or tender accepted by the Customer; and subject to any variation of this clause which will be notified to the Customer in writing, the price shall be paid by the Customer to the Company as follows:
- in cleared funds (such as credit card payment) prior to shipment of the Goods or establishment of the job or provision of Services by the Company, OR
- by irrevocable letter of credit at sight and established by the Customer, OR
- by any other means as notified to the Customer in writing when the order is placed.
Delivery of Goods and Services
Delivery of the Goods to the care and control of the Customer shall constitute delivery including any delivery agent of the Customer and in the absence of providing a delivery agent the Customer shall accept the delivery method of the Company. Delivery of Services shall be completion of labour services required by the order. The Company will make every effort to ensure that Goods and Services are supplied on time, but will not be responsible for any loss or damage to the Customer’s property arising in any way from delays in delivery. Where the Goods are delivered in instalments each delivery will be regarded as a separate contract and subject to the same payment terms.
Payment
Payment to be made by deposit and by other payment terms declared in the quotation or tender before work will begin or upon delivery of the Goods and Services except where the Company has agreed to provide credit to the Customer in which case payment shall be the 20th of the following month following the date of invoice and final payment is to be made in full without deduction or setoff according to the terms set out in the quotation or tender or order.
If payment is not made in full by the due date, the Company is entitled to charge the Customer interest on the unpaid overdue balance at the rate of 5% per annum above the current rate charged by the Company’s bank calculated from the due date of payment down to the actual date of payment, and the Company may at its option suspend the sale and secure the Goods in its possession regardless of the term of this contract until the overdue amounts are paid in full.
If at any time the Company reasonably deems the credit of the Customer to be unsatisfactory, it may require the Customer to provide at the Customers cost, security for payment and/or the Company may suspend performance of any of its obligations under this contract until security is provided to the Company’s satisfaction and the Company may require the Customer to pay all costs incurred as a result of suspension and re-commencement of supply including legal and debt collection costs.
Transfer of Risk and Retention of Title
Risk of any loss, damage or deterioration of or to the Goods shall be borne by the Customer from the time of delivery of the Goods into the Customer’s care and control and the Customer shall insure the Goods for fire and loss damage.
Regardless of the specifications for making the Goods the Customer agrees that the Company has legal and equitable right to title in the Goods and ownership shall only pass to the Customer when the contract price is paid. For as long as ownership in the Goods is retained by the Company, the Customer will store the Goods separately and in such a way that they are identifiable as the property of the Company and shall properly store, protect and insure the Goods from fire and loss damage.
Notwithstanding that property in the Goods is retained by the Company, the Customer is hereby authorised to use the Goods or to sell the Goods in the ordinary course of business and to deal with such proceeds as fiduciary agent and bailee of the Company until the Customer pays the Company in full without deduction or setoff: provided that such authority may be revoked by written notice at any time if the Company deems the credit of the Customer to be unsatisfactory or if the Customer is in default of its obligations under the contract or any other contract between the Company and the Customer.
Where Goods or Goods including the value of Services in respect of which property has not passed to the Customer are sold by the Customer pursuant to the authority granted in clause 5.3 any book debt created upon sale of such Goods and the proceeds of sale of such Goods, when received by the Customer, shall be held upon trust by the Customer for the Company and any proceeds of sale so received by the Customer shall be placed in trust for the Company and in a separate bank account and shall first be applied towards the satisfaction of all indebtedness of the Customer to the Company.
If the Goods including the value of Services the subject of this contract, have become the constituent of or mixed with or attached to any other goods, meaning Goods that are sold by the Company and those goods are sold by the Customer prior to the Company receiving payment, then a portion of the proceeds of that sale, attributable to the Company’s Goods, shall be the property of the Company, and the Customer shall ensure that such proceeds are at all times held in a separate fund in trust for the Company.
This reservation of title and ownership is effective whether or not the Goods have been altered from that supplied or mixed where it is impractical to remove the Goods without incurring loss to an innocent third party, the Company is co-owner of the with other materials or fixed to property owned by the Customer. Where such Goods are mixed and are severable but not identifiable or Customer’s property in proportion to the contribution made by the Goods to the value of the Customer’s property.
The Customer shall inform its creditors of the terms upon which it buys Goods and Services from the Company including that the Company may create and register a Purchase Money Security Interest over the Goods and Services under the Personal Property Securities Act. The Customer agrees to waive the right to receive a verification statement for purposes of s.148 of the Act. The Customer shall also inform any Trustee in Bankruptcy or Liquidator of the Customer or any Receiver of the Customer’s business or assets of the rights of the Company and title to the proceeds of sale.
The Security Agreement is a continuing security and will operate irrespective of any intervening payment or settlement of account until the Company has signed a release. The security interest granted in the Collateral has the same priority in relation to all and any Goods and Services supplied to the Customer by the Company at any time.
In any event where Goods remain unpaid by the Customer the Company has unreserved right to enter the property of the Customer or its agents during normal business hours and remove Goods relating to the unpaid amount in accordance with the Credit (repossession) Act and the Customer will not hold the Company responsible for any economic or consequential loss that the Customer may suffer as a result, whether the Goods are attached to other goods or property owned by the Customer, or not.
Use of Intellectual Property and Indemnity
The Customer agrees that the use of intellectual property in which the Company is proprietor in the form of published material, patents, trademarks, copyrights, manuals, drawings and other technical information, shall be for the sole purposes of the Customer in using the Goods and may not be copied, altered, adapted or given to any third party without the written permission of the Company. The Customer further agrees not to give or make any undertaking, assertion or representation in relation to the Goods to any other person or Company without the prior approval in writing of the Company, and the Customer shall indemnify the Company against liability or cost incurred by the Company as a result of any breach by the Customer of this provision.
Where the Company has followed plans, drawings, designs, specifications and instructions being oral or written provided by the Customer, the Customer shall indemnify the Company against damages, costs and expenses in respect of which the Company may become liable by following such plans, drawings, designs, specifications and instructions and including those arising from the infringement of patents, copyrights or trademarks by the Customer.
Warranty and Guarantees
In accordance with the description of Goods in its quotation or tender the warranty on Goods supplied by the Company but not manufactured by the Company shall be the warranty of the original manufacturer.
The Company shall warrant the Goods for a period of twelve (12) months and Services for a period of three (3) months and that the Goods supplied shall conform to product properties specified which shall be its merchandisable quality but no representations of any kind (whether by negligence or otherwise) are made for any technical advice or assistance as to the ability of the Goods to be used for the purposes of the Customer and that the provision of technical information concerning the use or application of the Goods by the Customer or the result obtained therefore does not constitute any liability as to fitness for purpose whatsoever by the Company.
Where the Customer has arranged for the supply of plans, patterns, drawings, parts or permits by declaration in the quotation or tender it shall be the sole responsibility of the Customer that supply is satisfactory for the purposes they are intended and if the Company uses such supply and incurs costs where supply is not fit for purpose or in accordance with engineering or building codes, the Customer shall pay the Company for all costs incurred in the Company’s supply.
In the case of accidental damage the liability of the Company shall be limited to the terms of its policy with its insurers with regard to any loss of profits or any consequential, indirect or special loss, damage or injury of any kind whatsoever suffered by the Customer or any other person arising directly or indirectly from any breach of any of the Company’s obligations arising under or in connection with this contract including delays in the delivery of Goods or Services or from any cancellation of the contract or from any negligence, misrepresentation or other act or omission on the part of the Company, its servants, agents or contractors. Claims for loss or damage or injury shall be limited to the terms the Company has with its insurers and linked at the Company’s option to repair of the Goods or replacement of the Goods or Services or the price of the Goods or Services.
The Company shall not be liable for any breach or failure to perform any of its obligations under this contract where such breach or failure is caused by war, bad weather, adverse environmental conditions, civil commotion, hostilities, strike or lock out, act of God, fire, governmental regulations or directions, or reasons force majeure caused beyond the Company’s reasonable control. The occurrence of such an event shall not give the Purchaser a right of cancellation of any contract.
Claims for Damaged or Defective Goods.
The Company will not accept any claim by the Customer and this guarantee will not apply, and claims will not be considered, where:
- the defect or failure is due to or resulting from damage or misuse, negligent maintenance or care while in the possession of the Customer or failure to follow care instructions of the Goods have not been used for the purpose for which they were designed or the Goods used by persons not technically competent with the design of the Goods or where the Goods have not been installed or maintained by a Registered Electrician or Registered Engineer where this is required.
- the defect, or failure is due to defective drawings, instructions or plans supplied by the Customer.
- the defect or failure is caused by Customer misinterpretation of oral or written instructions for care given by the Company.
- the defect is remedied by the Customer or by a third party instead of the Company.
- or where the Customer infers a right or license to use or exploit any intellectual property in which the Company is proprietor or where the Customer alters the Goods in any way from the condition in which they were supplied by the Company or attaches the Goods to other goods that cause a defect in the Goods supplied.
If the Customer does not comply with the above requirements, the Customer will be deemed to have accepted the Goods and the Company will not incur any liability whatsoever in relation to the Goods.
Variations
Any variations regarding price or supply to that agreed in the quotation or tender or order that may be agreed between the parties during the period of supply shall be in writing and take precedence over that part of the quotation or tender or order so affected.
Grounds for Termination by the Company
This contract may be terminated by the Company immediately on written notice to the Customer, if an Event of Default of payments due to the Company by the Customer occurs, and the Company may enter the premises of the Customer where the Goods are stored and remove them.
Default will also mean, if the Customer:
- Fails to commence operations of the contract meaning orders given to the Company on or before commencement date.
- Fails to comply with any quality or standards for the care of the Goods issued by the Company.
- Shall commit any act of bankruptcy, or enter into any composition or arrangement with creditors.
- Where the Customer is a company do any act that would render it liable to be liquidated or if a resolution is passed or proceedings commenced for the liquidation of the company or if a Receiver is appointed in respect of all or any assets of the company.
No release from obligations. Terminations of this contract shall not relieve the Customer of its obligations to pay all money owed by it to the Company on any account whatsoever, which money shall be payable immediately notwithstanding that the date for payment of the money may not have arrived. Termination of this agreement shall not relieve the Customer from liability arising from any antecedent breach of the terms of this agreement.
Immediate Steps Upon Termination. Upon the termination of this agreement for any reason, all rights of the Customer granted by this agreement shall terminate and the Customer will not be entitled to receive any rebate or refund of the whole or any part of the money paid pursuant to this contract.
Applicable Law for Dispute and Arbitration
In the event of any dispute between the Company and the Customer arising out of this contract such dispute shall be referred to a Mediator to be agreed between the parties and upon failure to accept the resolution of the Mediator shall be referred to an Arbitrator to be agreed between the parties and upon failure to reach agreement arbitration be conducted in accordance with the New Zealand Arbitration Act 1996 and any amendments thereof and such arbitration and legal hearings shall be conducted in New Zealand.
New Zealand Consumer Guarantees Act 1993
The parties agree to contract out of the provisions of the Consumer Guarantees Act 1993 to the extent permitted by the Act where the Customer acquires the Goods or Services for the business purposes of a business and all provisions of these terms shall be read as modified to the extent necessary to give effect to that intention.
Guarantor
The Application for Credit forms part of the contract. Upon signing acceptance of the conditions for Application of Credit the Customer accepts the terms and conditions of the Company Terms of Trade for Goods and Services. Where the Customer is a company, the person(s) referred to, as guarantor(s) in this contract shall personally guarantee the obligations of the Customer.
