Splash Direct Limited
Standard Terms and Conditions of Sale
1. In these terms and conditions:
a. “Buyer” means any person buying Goods from the Company.
b. “Company” means Splash Direct Limited and any agents or employees of Splash Direct Limited.
c. “Goods” means all goods or services provided by the Company to the Buyer.
d. A reference to “person” includes any individual, firm, company, corporation, government or local body or other legal entity.
Overview and Acceptance
2. The Company will contract on these terms only. Receipt of an order from the Buyer will be deemed to be acceptance by the Buyer of these terms as amended from time to time, notwithstanding anything that may be stated to the contrary in the Buyer’s inquiries or on the Buyer’s orders.
Price and Orders
3. Any price indications or price lists are subject to change without notice and Goods will be invoiced at the price in effect at the date of delivery.
4. Unless otherwise stated the purchase price for the Goods is exclusive of Goods & Services Tax and delivery costs which if payable shall be charged to the Buyer’s account and shall be governed by the provisions of this contract.
5. Goods are offered subject to availability and the Company reserves the right to refuse any order.
6. Payment for the Goods shall be made in full without set-off or deduction of any kind on or before the 20th day of the month following the date of the invoice, or if requested by the Company on receipt of delivery of the Goods.
7. Interest may be charged at a rate of 5% per annum above the overdraft lending rate of the Company’s bankers for the time prevailing from the date when payment for the Goods becomes due to the date of actual payment.
8. Any expenses disbursements and legal costs incurred by the Company in the enforcement of any rights contained in this contract, including any reasonable solicitor’s fees or debt collection agency fees shall be paid by the Buyer.
9. Receipt of a cheque, bill of exchange, or other negotiable instrument shall not constitute payment until such negotiable instrument is paid in full.
10. The Company reserves the right to reverse any discounts given to the Buyer if payment is not received pursuant to clause 6 and to suspend delivery of further Goods if the terms of payment are not strictly adhered to by the Buyer.
11. Any deposits received by the Company for holding Goods are non-refundable to the Buyer.
12. The Company shall deliver the Goods to the address stated on the order or as agreed by the Company in writing.
13. The Company shall deliver the Goods by such carrier and in such form of transport the Company considers to be appropriate.
14. The Company will not be responsible for any part delivery or delay in delivery of the Goods as a result of events occurring beyond the Company’s control. The Company shall not be in anyway responsible for any consequences (direct or indirect) arising from such delay or non-delivery.
15. If the Goods are ascertained and in a deliverable state, title in the Goods passes to the Buyer when the Buyer has made payment in full for all Goods supplied by the Company.
16. Where the Buyer has not paid for any Goods in its possession property in such Goods shall remain with the Company.
17. The Buyer gives irrevocable authority to the Company to enter any premises occupied by the Buyer, at any reasonable time, to remove any Goods not paid for in full by the Buyer. The Company shall not be liable for costs, damages or expenses or any other losses incurred by the Buyer or any third party as a result of this action.
18. The risk in the Goods and purchases shall, unless otherwise agreed in writing, pass to the Buyer on delivery.
19. Delivery of the Goods shall be deemed to be complete when the Goods are dispatched from the Company’s premises for delivery to the Buyer.
Collection & Use of Information
20. The Buyer authorises the Company to collect, retain and use any information about the Buyer for the purpose of assessing the Buyer’s credit worthiness or enforcing any rights under this contract.
21. The Buyer authorises the Company to disclose any information obtained to any person for the purposes set out in clause 20.
22. Where the Buyer is a natural person the authorities under clauses 20 and 21 are authorities or consents for the purposes of the Privacy Act 1993.
23. The Buyer shall be deemed to have accepted the Goods unless the Buyer notifies the Company otherwise within 14 days of delivery of the Goods to the Buyer.
PPSA Security Interest
24. Where clause 16 applies the Buyer grants to the Company a Security Interest in the Goods and their Proceeds to secure the obligation of the Buyer to pay the purchase price of the Goods and any other obligations of the Buyer to the Company under this contract. Where the Goods and/or Proceeds are not readily identifiable and/or traceable or their recoverable value is insufficient to pay the indebtness, the Security Interest shall also extend to all the Buyers present and after acquired property and any other property of which the Goods form part, to the extent required to secure the obligations of the Buyer. The security interest created by this clause becomes enforceable if any of the following events occur:-
a. the Buyer fails to pay any money owing on the due date;
b. The Buyer sells, parts with possession, leases or disposes of any goods or does anything inconsistent with the Vendor’s ownership of the goods prior to making payment in full to the Vendor;
c. The Vendor believes the Buyer has committed or will commit an act of bankruptcy, has had or is about to have a receiver appointed, or is declared insolvent.
d. The goods are at risk, as that term is defined in the PPSA 1999;
e. The Buyer neglects or fails to carry on its business to the reasonable
satisfaction of the Vendor, or if there is a significant deterioration in the trading
or asset position of the Buyer.
25. As and when required by the Company the Buyer shall, at its own expense, provide all reasonable assistance and relevant information to enable the Company to register a Financing Statement or Financing Change Statement and generally to obtain, maintain, register and enforce the Company’s Security Interest in respect of the Goods supplied, in accordance with the Personal Property Securities Act 1999 (“PPSA”).
26. Until the Buyer has paid all money owing to the Company the Buyer shall at all times ensure that:
a. The Goods supplied by the Company, while in the Buyer’s possession, can be readily identified and distinguished; and/or
b. All Proceeds (in whatever form) that the Buyer receives from the sale of any of the Goods are readily identifiable and traceable.
27. The parties agree to contract-out of:
a. Sections 114(1)(a) of the PPSA; and
b. The Buyer’s rights in sections 116, 119, 120(2), 121, 125, 129, 131 and 132 of the PPSA.
28. The Buyer waives its right to receive a Verification Statement in respect of any Financing Statement or Financing Change Statement registered by or on behalf of the Company in respect of the Security Interest created by these terms and conditions of trade.
29. For the purpose of clauses 24 to 28 words and phrases starting with a capital letter (other than those defined in clause 1 which shall prevail) shall have the respective meanings given to them under, or in the context of, the PPSA.
Limitation of Liability
30. Except as otherwise provided by statute the Company shall not be liable for:
a. Any loss or damage of any kind whatsoever whether suffered or incurred by the Buyer or another person whether such loss or damage arises directly or indirectly from the Goods or advice provided by the Company to the Buyer and without limiting the generality of the foregoing of this clause the Company shall not be liable for any consequential loss or damage of any kind including without limitation any financial loss; and
b. Except as provided in this contract the Company shall not be liable in contract, or in tort, or otherwise for any loss, damage, or injury beyond the value of the Goods provided by the Company to the Buyer.
Liability for Defective Goods
31. The Company’s liability for defective Goods and loss caused by defective Goods is
limited to, at the Company’s option to either:
a. Replacing, at the premises of the Company, any Goods which the Buyer is entitled to reject; or
b. Refunding the sale price of those Goods rejected; or
c. In respect of defective Goods not manufactured by the Company to the amount (if any) that the Company has received from its supplier in respect of those Goods.
Claims for Defective Goods
32. No claim based on defective Goods will be allowed unless:
a. The claim is notified to the Company within 90 days of the receipt of the Goods by the Buyer;
b. The Company is given a reasonable opportunity to investigate the claim; and
Testing and Inspection of Goods
33. All testing and inspection of the Goods by the Buyer must be final and take place at the premises of the Company.
Consumer Guarantees Act 1993
34. The guarantees contained in the Consumer Guarantees Act 1993 are excluded where the Buyer acquires the Goods or services from the Company for the purposes of a business in terms of sections 2 and 43 (or any substituted sections) of that Act.
35. All Goods are guaranteed to be of merchantable quality. Where Goods are supplied to the specifications of the Buyer, these Goods are guaranteed by the Company to be in accordance with those specifications.
36. The Company does not provide any warranty that the Goods are fit and suitable for the purpose for which they are required by the Buyer and shall not be liable if they are not.
37. The Company shall, without any liability, and without any prejudice to any other right it has in law or equity, have the right by notice to suspend or cancel in whole or in part any contract for the supply of Goods to the Buyer if the Buyer fails to pay any money owing after the due date or the Buyer commits an act of bankruptcy as defined in section 19 of the Insolvency Act 1967.
38. Any cancellation or suspension under clause 37 of this contract shall not affect the Company’s claim for money due at the time of cancellation or suspension or for damages for any breach of any terms of this contract or the Buyer’s obligations to the Company under this contract.
39. The Buyer authorises the Company to contract for the provision of Goods that are the subject matter of this contract.
40. The Buyer shall not assign all or any of its rights or obligations under this contract without the written consent of the Company.
41. The Company shall not be liable for delay or failure to perform its obligations if the cause of the delay or failure is beyond its control.
42. Failure by the Company to enforce any of the terms and conditions contained in this contract shall not be deemed to be a waiver of any of the rights or obligations the Company has under this contract.
43. The law of New Zealand shall apply to this contract except to the extent expressly negatived or varied by this contract.
44. Where the terms of this contract are at variance with the order or instruction from the Buyer, this contract shall prevail.
45. If any provision of this contract shall be invalid, void or illegal or unenforceable the validity existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
46. Any dispute between the parties is to be dealt with in accordance with the Arbitration Act 1996.