GENERAL TERMS AND CONDITIONS OF SALE
Application of General Terms and Conditions
1. Whenever you enter into an agreement to have us manufacture and/or supply goods to you now or in the future, these general terms and conditions of sale, or such amended terms and conditions of sale as we may notify to you from time to time, will apply.
2. These general terms and conditions of sale will be subject to any specific terms and conditions of sale which may be agreed by us and set out in any contract of manufacture and/or sale.
3. Where these general terms and conditions of sale are attached to an agreement to supply on credit terms, we may change these conditions and terms from time to time and notify you of such change.
4. a. When quote a price to you, it will remain firm for 30 days unless we have advised you in writing;
b. We are entitled to withdraw our quotation at any time until we have signed a contract for sale.
5. No contract for sale and purchase for any goods will exist between us until both of us have signed a contract for sale.
6. If we sign a contract with you and we do not have the goods to be supplied in the country which is applicable to the entity by which we contract with you and you are situated, we will do what we reasonably can to import them.
7. If on or before the estimated delivery date, we do not have the goods in that country, and it is apparent that we will not be able to import them within a timeframe we consider reasonable to fulfill the contract, we may elect to cancel the contract without penalty or other liability for non-delivery of the goods. This includes exclusion of direct or consequential loss or damage.
8. If we cancel the contract we will refund any moneys paid by you on account of the purchase price.
Alterations in Design and Specification
9. When we enter into contract with you, and we have agreed with you specifications for the goods in writing, those specifications will form part of the contract. However, where we are not the manufacturer, in the event of any alteration by the manufacturer in the design or specification of any goods, we will be entitled to deliver, and you must accept, goods conforming to the altered design or specification in fulfillment of the contract, except where a change in design or specification affects the capability and performance of the goods in a material way.
Price Escalation and Taxes
10. When we agree the price of goods with you and record it in a contract of sale, the price will be fixed except in one respect. We may add to the agreed price any increase in, or imposition of, import duties, goods and services or other value added or consumption tax, or new tax or levy on importation and supply of goods, or otherwise which may be imposed by legislation between the date of contract and the date on which we deliver the goods to you.
Delivery and Passing of Risk
11. Delivery of the goods will occur when we give the goods into your possession or to any third party to which you have directed us to give possession of the goods.
12. Even though title to the goods may not pass upon delivery and the giving and taking of possession, the goods will be, and remain, at your risk in all respects from delivery.
Reservation of Title to Goods
Even though we may have delivered the goods to you and risk has passed to you, until all moneys owed by you to us for the goods are satisfied or paid in full:
a. The ownership of the goods remains ours.
i. hold the goods as our fiduciary agent and bailee;
iii. must insure the goods, and keep them insured;
iv. must permit us to have reasonable access to your premises at any time to inspect the goods; and
v. may not sell, modify, export or otherwise dispose of the goods except with our express written permission.
c. If a Default Event occurs, we may:
i. retake possession of the goods and sell them; or
ii. if we notify you that moneys in respect of goods are recoverable as a debt, sue for those moneys.
Personal Property Securities Act 1999 (PPSA)
14. You acknowledge that clause 13.a creates a security interest (as that term is defined in the PPSA) in the goods and we may perfect that interest in the Personal Property Securities Register created by the PPSA. If we request you to do so, you agree to execute promptly any documents, provide all necessary information, and do anything else required by us to ensure that the security interest constitutes a perfected security interest (as that term is also defined in the PPSA).
15. You waive your rights under the PPSA to receive a copy of any verification statement otherwise required by the PPSA.
16. So far as permitted by section 107 of the PPSA, you will have no rights under sections 114, 120 and 133 of the PPSA, including the right to receive any notices.
17. You agree that we may exercise our rights under sections 108, 109 and 120 of the PPSA concurrently, and that repossession and retention of goods under sections 120 to 123 by us will immediately extinguish any rights and/or interests you may have in the goods, and we may allocate any moneys we receive from disposal of the goods to any debt you owe us and any charges and expenses in any priority we determine.
18. You agree that we may allocate amounts we receive from you in any manner we determine, including any manner required to preserve any purchase money security interest as that term is defined in the PPSA, we have in any goods we supply you.
19. In the event that goods we have supplied to you have been purported to be sold by you to any other party, any moneys goods or other consideration received by you shall be deemed to be held in trust for us, without prejudice to our continued ownership of title in the goods referred to in the contract for sale.
20. In the event that the goods have been incorporated into other property or goods, we are entitled upon demand to obtain possession of the property or goods which incorporate those referred to in the contract of sale.
21. You hereby irrevocably give to us authority, by our employees and agents, to enter any premises occupied by you on or in which the goods are situated, at any reasonable time after default by you, or where we believe default is likely, and to remove and repossess any goods (including attachments and accessories) and any other property to which the goods we supplied you are attached or incorporated.
Personal Property Securities Act 2009 (PPSA) — Commonwealth of Australia
22. You acknowledge that clause 13.a creates a security interest (as that term is defined in the PPSA) in the goods and we may perfect
that interest by registration in the Personal Property Securities Register created by the PPSA under section 150 PPSA. If we request you to do so, you agree to execute promptly any documents, provide all necessary information, and do anything else required by us to ensure that the security interest constitutes a perfected security interest (as that term is also defined in the PPSA).
23. You waive your rights under the PPSA to receive a copy of any verification statement otherwise required by the PPSA.
34. You agree in accordance with section 115 of the PPSA to contract out of your right to receive the following notices and statements:
a. Section 95 — notice of removal of accession;
b. Section 130 — notice of disposal of collateral;
c. Paragraph 132(3)(d) contents of statement of account after disposal;
d. Subsection 132(4) — statement of account if no disposal;
e. Section 135— notice of retention.
25. You agree that we may exercise our rights under sections 123 and 125 of the PPSA concurrently, and that repossession and retention of goods under those sections by us will immediately extinguish any rights and/or interests you may have in the goods, and we may allocate any moneys we receive from disposal of the goods to any debt you owe us and any charges and expenses in any priority we determine.
26. You agree that we may allocate amounts we receive from you in any manner we determine, including any manner required to preserve any purchase money security interest as that term is defined in the PPSA, we have in any goods we supply you.
27. In the event that goods we have supplied to you have been purported to be sold by you to any other party, any moneys goods or other consideration received by you shall be deemed to be held in trust for us, without prejudice to our continued ownership of title in the goods referred to in the contract for sale.
28. In the event that the goods have been incorporated into other property or goods, we are entitled upon demand to obtain possession of the property or goods which incorporate those referred to in the contract of sale.
29. You hereby irrevocably give to us authority, by our employees and agents, to enter any premises occupied by you on or in which the goods are situated, at any reasonable time after default by you, or where we believe default is likely, and to remove and repossess any goods (including attachments and accessories) and any other property to which the goods we supplied you are attached or incorporated.
30. A Default Event occurs if:
a. You commit an act of bankruptcy or are declared bankrupt; or
b. A petition to liquidate you is filed or you go into liquidation; or
c. You are placed in receivership or voluntary administration; or
d. You enter into any arrangement, composition or compromise (formal or informal) with your creditors; or
e. Any cheque or other purported payment you give or make to us is dishonoured; or
f. Moneys are unpaid by you to us after the due date for payment; or
g. You are otherwise in breach of these general terms and conditions of sale or the contract you have entered into with us; or
h. You cease to trade or carry on business in a usual manner.
31. If a Default Event occurs:
a. We may terminate the supply of goods on credit;
b. All moneys in respect of goods delivered to you become immediately due and payable; and
c. We may exercise our rights under these general terms and conditions or otherwise at law.
Payment for Goods
32. Where details of payment terms are not specified in a contract of sale we enter into with you, and where we have agreed to provide goods to you on credit terms resulting from an application by you for supply of goods on credit terms, payment for goods supplied is to be made by you not later than the 20th day of the month following the month of supply.
Freight and Insurance Risk
33. Risk of damage in the goods passes to you ex our works or the manufacturers works where supplied directly from there unless otherwise agreed in writing.
34. All freight and insurance costs are for your account unless they have been included in our quotation and subsequent contract with you, and we may charge a reasonable handling fee for arranging either or both.
Costs and Expenses
35. All reasonable costs, expenses and disbursements incurred by us (including debt collection, agency fees and legal costs) arising from, or incidental to, us exercising a right under these general terms and conditions or from a Default Event, or in enforcing a contract with you, are payable by you to us upon demand.
36. If you do not pay a sum of money payable by you to us when it is due under a contract of sale, or where a credit arrangement has been made with us, on or before the date when such credit is due to be repaid in terms of that credit arrangement, or in all other cases upon delivery, then you will pay to us interest on the amount owing to us from the date it was due, at a percentage rate per annum 6% above the overdraft interest rate which our principal trading bank is charging from time to time.
37. This right to penalty interest does not prevent us from exercising any other right under these general terms and conditions of sale or at law.
38. We may exercise a general lien over your goods given into our possession, including technical records, in respect of any payments outstanding under any contract between us. This lien will survive notwithstanding the removal of such goods from our possession from time to time.
39. We are entitled to assume that all goods placed into our possession by you are your absolute property. If it is proven otherwise, we are entitled to assume that you have authority to put the goods into our possession subject to these general terms and conditions.
40. We are entitled to recover all costs in exercising our right to lien, including, without limitation, storage costs and all expenses incurred by us.
Inspection of Third Party Work
41. Where in respect of the goods we agree to sell you, you require delivery to occur by delivery into the possession of a third party contractor; who you have contracted to carry out work on or to the goods, you agree as follows:
a. we do not certify or warrant to you that the work carried out by your third party contractor is safe, or that we approve its method, or that it complies with any legislative obligations imposed on you, compliance being your sole responsibility; and
b. we have no liability whatever to you arising from the work attended to by your third party contractor, or on account of the fact that we have carried out a subsequent pre-delivery inspection of the vehicle;
c. you indemnify us completely against all demands, claims, actions, costs, expenses, damages or liabilities whatsoever, arising from the work you arranged, and our inspection.
Warranties Conditions and Exclusions
42. In respect of the manufactured goods of third parties, unless additional warranty terms are included in special conditions, the only warranty which we give you in respect of the goods is the written warranty (if any) of the manufacturer of those goods handed over on delivery of the goods.
43. Where we manufacture the goods for you, unless additional warranty terms are included in special conditions:
a. We warrant that they will be free from defect in materials and workmanship for a period of 6 months from deliver of the goods;
b. Our sole and limited obligation and liability to you is the correction of the defect at our own expense including transportation charges incurred in connection with that correction;
c. Our warranty is conditional on the following:
i. you must notify us of the defect within 7 days of it becoming apparent;
ii. you must allow us reasonable opportunity for inspection and any adjustment, repair or replacement as we shall so decide;
ii. you must have operated the goods and maintained them in accordance with any written instructions issued by us and have not misused them, nor had them repaired or altered by anyone else.
44. If the goods we supply you are used goods and we have disclosed this to you, unless otherwise expressly stated in the contract, we do not warrant in any way which is expressed or might be implied, the condition and/or state of repair of those goods. You must verify the state and/or condition of those goods yourself and we sell you these goods on an "as is, where is" basis.
45. All other warranties conditions or liabilities whatsoever whether express or implied and whether arising in contract, tort or by statute or otherwise are excluded to the maximum extent permitted by law.
46. Without limiting the generality of our exclusion of warranties and conditions, we will not be liable for any personal injury, property damage, consequential or contingent loss or damage caused through our breach of contract or our negligence or that of any of our employees, contractors or agents.
47. In New Zealand you acknowledge that where you acquire goods from us for the purposes of business, the Consumer Guarantees Act 1999 will not apply, but otherwise we acknowledge that it does apply and the warranty limitations set out above will be read subject to that Act.
48. In Australia You acknowledge that where you acquire goods from us for the purposes of business and laws which provide consumer protection to persons who acquire the goods for ordinary household use are excluded to the fullest extent possible at law.
Limitation of Liability
49. You agree that in any event if any of the exclusions of warranty or liability set out before is not effective, our liability will be limited, at our discretion, to:
a. The replacement of the goods; or
b. The cost of replacing the goods; or
c. The repair of the goods; or
d. The cost of having the goods repaired; or
e. Where we have supplied engineering design or support services and not goods, the total value of the services supplied.
50. Any parts which will require a repair cost of 70% of the current new list price will be regarded as scrap and will be disposed of by us.
51. The specific terms of contract we enter into with you, and these general terms and conditions of sale, between them constitute the entire agreement between us. No earlier representation warranty or agreement in relation to any matter covered by them has any force and effect from the time the contract is signed.
52. Where there is any conflict between the specific terms of a contract and these general terms and conditions of sale, the specific terms will take priority.
53. No neglect nor delay, nor forbearance or indulgence by us relating to any strict rights we have under a contract including these general terms and conditions of sale will, act as or be deemed to be, a waiver of those rights, whether implied or otherwise.
54. Unless otherwise specified, the currency quoted is New Zealand dollars.
55. All contract prices set out in a contract of sale and all prices for goods supplied under an agreement to supply goods on credit terms will be expressed exclusive of GST.
47. Where goods are supplied to you in New Zealand you will in addition to the price, pay GST payable pursuant to the Goods and Services Tax Act 1986 at the applicable rate from time to time.
57. Where goods are supplied to you in Australia, you will in addition to the price, pay GST payable pursuant to the A New Tax System (Goods and Services Tax) Act 1999 at the applicable rate from time to time.
58. If you are a trustee and sign an application for supply of goods on credit terms or a contract of sale with us the application, contract of sale and these terms will also bind you personally unless you are an independent trustee.
59. You are an independent trustee unless you have or can receive any right to, or can receive an interest in any of the assets of the trust, except in your capacity as a trustee of the trust, and provided that you always retain a right of indemnity from the trust until the contract of sale is completed or all credit supplied has been paid and you have been released by us in writing.
60. Where a person signs an application for credit for the supply of goods, or a contract for sale of specific goods, as a guarantor, the guarantor acknowledges that the following will apply:
a. The credit provided by us will be in consideration of the guarantee;
b. The guarantor unconditionally guarantees your obligations as purchaser under a contract for sale of our supply of goods to you on credit and the general terms and conditions of sale;
c. The guarantee is a continuing guarantee for all of your obligations and is irrevocable and will remain in force and in effect until discharged;
d. The guarantee will not be considered as wholly or partially discharged by the performance at any time of your obligations, or by any settlement of account or in any other way;
e. The guarantee is a principal obligation and will not be treated as ancillary or collateral to any other right or obligation whatever;
f. The guarantee may be enforced against the guarantor without us being first required to exhaust any remedy we may have against you;
g. If your obligations are guaranteed by more than one person, the guarantees are joint and several obligations of the guarantors;
h. No guarantor will be released from liability under this guarantee by reason of this guarantee ceasing to be binding as a general security on any other guarantor, and no release of one guarantor will affect the liability of any other guarantor;
i. The guarantor agrees unconditionally and irrevocably to guarantee to us, and indemnify us from, all costs, losses, liabilities (including legal expenses on a full indemnity basis), incurred as a direct or indirect consequence of our attempted enforcement of collection of what is owed to us, or repossession of our goods;
j. We may seek from any reporting agency or other credit provider, now or at any time, any information about the guarantor or your credit arrangements with us, including credit worthiness, credit history, or credit capacity, that credit providers and credit reporting and/or recovery agencies are allowed to give or receive pursuant to the Privacy Act 1993 and the Privacy Act 1988 in Australia;
k. The terms of this clause 50 shall together with the witnessed signature of a guarantor on a credit application or specific contract for sale of goods with us, constitute a deed of guarantee.
61. In a contract including these general terms and conditions, words importing the singular include the plural and vice versa, the masculine gender includes the feminine and words denoting individuals include corporations and vice versa.
62. The headings in these general terms and conditions of sale act as a guide only and do not form part of the contract.
63. The following words in these general terms and conditions have the following meaning:
"We", "us" and "our" means and refers to J & D McLennan Ltd
"You" and "your" means and refers to the party purchasing goods from us signing the specific terms of contract. "Goods" means all kinds of personal property including, but not limited to, vehicles, plant, equipment and spare parts. "GST" means the tax imposed by the GST Act.
"GST Act" means the Goods and Services Tax Act 1985 where the goods are supplied to you in New Zealand orthe Goods and Services Tax Act 1999 where the goods are supplied to you in Australia.