1) Terms of Trade
By purchasing Product and Services from Automated Technologies Limited, the purchaser acknowledges and agrees (or is deemed to acknowledge and agree) to Automated Technologies Limited standard form terms of trade (these Terms) forming part or each agreement notwithstanding anything that may be stated to the contrary the Purchaser’s enquires or order.
1.1 In this Agreement:
Owner means Automated Technologies Limited its successors and assignors or any person acting on behalf of and with the authority of Automated Technologies Limited. Owner’s Premises means [ ]. Purchaser means the person entering into these Terms and where that person enters into these Terms on behalf of another entity the expression includes such entity. This expression also extends to those claiming under or authorised by him/her/it. Product and Services means all equipment including tools, accessories and parts supplied to the Purchaser. PPSA means the Personal Property Securities Act 1999. Security Interest means the security interest provided for by these Terms. Trade Customers means only those Purchasers who the Owner has agreed are currently entitled to trade credit terms.
2.1 The Product and Services is sold at the rates either as quoted to the Purchaser in writing or, if no written quote is provided, at the Owner’s standard charges applying at the time. The Owner reserves the right to revise the rates and related charges without notice. Unless otherwise agreed in writing all freight, delivery and travel charges will be additional to any price quoted.
2.2 Except where the Owner dispenses with this requirement a deposit shall be paid at the time of signing an order. Such deposit and/or bond may be retained at the Owner’s sole discretion.
2.3 Payment of Product and Services and other charges for Trade Customers shall be made calendar monthly by the 20th day of each month following the date of the invoice.
2.4 All other purchases shall be on a cash sale basis and payment shall be made, unless a contrary agreement has been made between the Purchaser and the Owner immediately when the Product and Services is either picked up by the Purchaser’s carrier or prior to drop off of the Product and Services if the Owner has arranged transportation.
2.5 In the event of default by the Purchaser in the payment of any amount due he/she/it shall be liable for interest on the gross amount outstanding at the rate of 5% per month from the date on which payment is due until the date on which payment in full is received.
2.6 No claims for credits will be recognised after 14 days from the date of the invoice. All rates shall be GST exclusive, such GST to be paid by the Purchaser in addition to the rates specified and at the time for payment of the hire charges as provided by this clause 3.
2.7 The Owner may from time to time vary Trade Customers credit limits at the Owners discretion, If any charge would be in excess of the Purchaser’s credit limit, the Owner reserves the right to require, prior to delivery of the Plant, payment in cash of the amount by which the cost exceeds the Purchaser’s credit limit.
3 TITLE AND RISK
3.1 Ownership in the Product and Services shall not pass upon delivery, but shall remain with the Owner until full payment for all monies owing to the Owner by the Purchaser have been made. Until all monies have been paid the following shall apply:
(a) The Purchaser holds the Product and Services supplied as fiduciary for the Owner and will deal with them as agent for and on behalf of the Owner (but the Purchaser will not hold itself out as the Owner’s agent to any third parties).
(b) If any of the Product and Services are installed in or affixed to and become an accession to other Plant, the Security Interest continues in the accession in accordance with the PPSA. If the Product and Services becomes affixed to the land then, provided that the Product and Services can be separated from the land to which they are affixed, they remain the Owner’s property and the Owner may uplift and retake possession of the Plant.
© If the Product and Services subsequently becomes part of some other Product and Services of mass, then nothing in these Terms shall be construed as limiting the application of Section 82 to 86 (inclusive) of the PPSA.
(d) The Purchaser irrevocably gives the Owner the right to enter its property, without notice, to uplift and remove any of the Product and Services supplied and resell them. The Purchaser agrees to indemnify the Owner against any liability incurred in connection with such entry and removal.
(e) Unless otherwise agreed, the Purchaser is responsible for the cost of and arranging transportation of the Plant. If the Owner is delivering the Product and Services to the Purchaser, the Owner will use reasonable endeavours to see that deliveries are made according to schedule, but the Owner shall not be responsible for delivery delays due to causes beyond its control.
Risk in respect of the Product and Services sold shall pass to the Purchaser when the Plants are delivered to the Purchaser or the Purchaser’s carrier, or the time the Purchaser pays for the Plant, whichever is the earlier. Risk in the Owner’s possession for servicing, remains with the Purchaser. It is the Purchasers responsibility to insure the Plant, even if the Owner has arranged transportation of the Plant.
4.1 All Product and Services delivered to or in the Owners possession, for repair or servicing are subject to a lien for any sums owing by the Purchaser to the Owner, for repairs or servicing carried out on the Plant. Where the Owner retains a lien over any of the Purchaser’s Product and Services and the Purchaser is more than three months overdue with any monies owing, the Owner may, without further notice, sell the Product and Services in such a manner and such terms as the Owner thinks fit, and may from sale proceeds repay the amounts owing to the Owner for work done, and any expenses of sale.
5 CONSUMER GUARANTEES ACT 1993 (CGA)
5.1 If the CGA applies, these Terms shall be read subject to the Purchaser’s rights under the CGA, provided that where the Purchaser is hiring Product and Services for business purposes the CGA shall not apply.
6.1 The Purchaser may not cancel any order for Product and Services without the Owner’s written consent. If the Purchaser does so, in addition to any other rights the Owner may have, the Owner may retain any deposit paid.
6.2 Without prejudice to any other remedies available to the Owner the Owner may cancel these Terms at any time, without notice if:
(a) the Purchaser commits any breach of these Terms or if the Purchaser commits any act of bankruptcy or being a company an application is made or resolution is passed for it winding up or being a company a receiver of its assets or any of them is appointed or if any execution or distress shall be levied upon the Product and Services or if any judgment against the Purchaser shall remain unsatisfied for seven (7) days or more or if the Purchaser makes an assignment or compromise for the benefit of its creditors or being a company is placed under statutory management or if it ceases to carry on business.
(b) an event occurs or information becomes known to the Owner, which in the Owner’s opinion, might materially affect the Purchaser’s creditworthiness, the value of the Product and Services that subject of the Security Interest, or the Purchaser’s ability or willingness to comply with its obligations under these Terms or any other agreement.
7.1 Except to the extent of written warranties given by the Owner to the Purchaser, all warranties and representations including those expressed or implied by law, in respect of the Product and Services sold are excluded to the extent permitted by law.
7.2 The Owner shall not be liable:
(a) where the Purchaser has altered or modified the Plant, mis-applied the Plant, or subjected it to any unusual or non-recommended use, servicing or handling;
(b) for loss caused by any factor beyond the Owner’s control;
© for any indirect or consequential loss of any kind;
(d) for any second hand goods;
(e) where the terms of any written warranty for have not been complied with, or any manufacturers’ handbook provided to you has not been complied with.
7.3 The Owner’s total liability under any warranty for defective or damaged Product and Services supplied by the Owner is limited at its option to either:
(a) replacing or repairing the defective or damaged Plant; or
(b) refunding the price of the defective or damaged Plant.
7.4 Where the Owner elects to repair defective Plant, the Owner will use reasonable endeavours to repair the Plant, as soon as practical, but will not be liable for any delay in completing the repairs.
8 PERSONAL PROPERTY SECURITIES ACT 1999 (PPSA)
Without limiting anything else in these Terms, the Purchaser acknowledges that:
(a) these Terms create in favour of the Owner, a Security Interest in all present and after acquired Product and Services (being, for the avoidance of doubt, all the Purchaser’s present personal property and after acquired property except for any item of personal property which has not (or which is exclusively the proceeds of any item of personal property which has not) been supplied by the Owner to the Purchaser (or for the Purchaser’s account) to secure the payment by the Purchaser to the Owner of the amount owing; and
(b) these Terms will apply notwithstanding anything, express or implied, to the contrary contained in any purchase order or in any enquiry by the Purchaser; and
© the Security Interest shall continue until the Owner gives the Purchaser a final release.
8.2 Financing Statement
The Purchaser undertakes to:
(a) promptly do all things, sign any further documents and/or provide any information which the Owner may reasonably require to enable the Owner to perfect and maintain the perfection of the Security Interest (including by registration of a financing statement);
(b) give the Owner not less than 14 days prior written notice of any proposed change in the Purchaser’s name and/or any other change in details (including, but not limited to, changes in address, facsimile number, trading name or business practice).
8.3 Waiver and contracting out
(a) The Purchaser waives its right to receive a verification statement in respect of any financing statement or financing change statement relating to the Security Interest.
(b) To the extent permitted by law, the Purchaser and the Owner contract out of:
(i) Section 114(1)(a) of the PPSA; and
(ii) The Purchaser’s rights referred to in Sections 107(2)(c) to (i) of the PPSA.
8.4 The Purchaser agrees that the Security Interest has the same priority in relation to all amounts forming part of the amount owing, including future advances.
9 GENERAL TERMS
9.1 If a dispute arises and the Owner considers the dispute is one suitable for mediation the parties will try to settle the dispute by mediation before resorting to litigation or arbitration. Mediators should be agreed upon by the parties, but if the parties cannot agree on one within seven days after the mediation has been initiated, then the mediator shall be appointed by the chairperson of the New Zealand chapter of leading edge alternative dispute.
9.2 The Purchaser and any guarantor (if relevant) consent to receiving electronic messages (including commercial electronic messages and promotional electronic messages from the Owner from time to time.
9.3 Where the person signing these Terms signs for and on behalf of another person or entity as Purchaser the person signing covenants with the Owner that he or she has the authority of the Purchaser to make these Terms on the Purchaser’s behalf and is empowered by the Purchaser to bind the Purchaser to these Terms and is not released from the obligations hereof by signing on behalf of or in the name of another person or entity as Purchaser and without limiting the foregoing hereby indemnifies the Owner against all losses and costs incurred by the Owner arising out of the person so signing these Terms failing to have such power and/or authority.
9.4 Waiver or variation of these Terms will only be effective if given in writing by an authorised person. If the Owner waives any of these Terms the waiver shall apply to and operate only in the particular transaction, dealing or matter in respect of which it was given, and will not affect the Owner’s rights under these Terms at any future time.
9.5 The Purchaser and any guarantor (if relevant) authorise the Owner to collect and hold personal information from any source the Owner consider appropriate to be used for the purposes of determining credit worthiness, for debt collection purposes, or for any other related purpose. The Purchaser further authorise the Owner to disclose personal information held by the Owner for the purposes set out above to any other parties including the Owner’s subsidiaries, related companies and shareholders.
9.6 The Purchaser may not assign or subcontract any of the rights or obligation under these Terms.
9.7 Each clause in these Terms is severable and if any clause is held to be illegal or unenforceable then the remaining clauses will remain in full force and effect.
9.8 These Terms shall be governed by the laws of New Zealand and are subject to the non-exclusive jurisdiction of the courts of New Zealand.