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REFERENCE INFORMATION
© FANTECH
2016
O-20
O
CONDITIONS OF TRADING - NEW ZEALAND
15.8 This clause 15 applies notwithstanding any arrangement under which the Company
provides credit to the Buyer. To the extent that there is any inconsistency this clause
15 shall prevail.
15.9 The supply of Goods to the Buyer does not transfer any rights, title or interest in any
of the copyrights, trademarks, patents, designs or any other intellectual property
rights in connection with the Goods to the Customer, except as expressly provided
otherwise by any licence supplied with any software.
16. GST AND OTHER TAXES:
16.1 If the Company makes a taxable supply pursuant to the Goods and Services Act
1985, except where indicated otherwise, the amount payable for the taxable supply
will be expressed as a GST exclusive amount.
16.2 The Buyer is liable to pay for the taxable supply and must upon receiving a tax
invoice, also pay for any amount of GST that accrues in respect of the taxable supply
at the same time as payment for the taxable supply due.
16.3 In addition to the price of Goods and any other charges it is entitled to make the
Buyer, the Company shall be entitled to charge the Buyer the amount of any sales
tax, goods and services tax, excise, value added or other tax, impost or duty payable
by the Company in respect of the Goods.
17. RECOVERY COSTS:
17.1 The Buyer shall pay all accounting fees, legal (on a solicitor-client basis) and
administrative costs and expenses incurred by the Company, its advisers and agents
in respect of overdue accounts or other defaults in respect of these Conditions or any
Contract.
18. JURISDICTION:
18.1 These Conditions and each Contract shall be governed and interpreted according to
the laws of New Zealand and the parties agree to submit to the non-exclusive
jurisdiction of the courts of New Zealand.
19. CONFIDENTIAL INFORMATION
19.1 "Confidential Information" means all price lists, terms and conditions of sale,
promotional strategies and information about the products supplied by the Company
which may be disclosed by the Company to the Buyer at any time but does not
include information which:
(i) Is or has become publically available otherwise than due to disclosure in breach
of these Conditions or any other obligation of confidentiality of the Buyer;
(ii) The Buyer can prove was received from a third party and was not acquired
directly or indirectly in breach of any obligation of confidence.
19.2 The Buyer must:
(i) Only use the Confidential Information for the benefit of the Company and for the
purpose of ordering Goods from the Company;
(ii) Keep the Confidential Information confidential except for disclosure required by
law or to employees for the purpose of any Contract who have been directed to
keep the Confidential Information confidential;
(iii) Ensure that any employee to whom the Buyer discloses the Confidential
Information, keeps the Confidential Information confidential and only uses it for
the benefit of the Company and for the purpose of ordering Goods; and
(iv) Return any Confidential Information on request of the Company.
20. VALIDITY:
20.1 If any covenant or obligations of this Contract shall be or become invalid or
unenforceable, the remaining covenants and obligations shall not be affected
thereby and each covenant and obligation of this Contract shall be valid and
enforceable to the fullest extent by the law.
21. PRIVACY POLICY:
21.1 The Company complies with the Privacy Act 1993 and is bound by the New Zealand
Privacy Principles dealing with the collection, use and storage of personal
information about individuals and the Company will only use personal information for
the purpose for which it is provided, including for the purposes of supplying Goods,
carrying out credit checks and debt collection and providing the Buyer information
about goods the Company thinks might be of interest to the Buyer. The Buyer has
the right to access personal information that the Company holds about the Buyer and
to request correction of any incorrect information.
21.2 The Buyer agrees the Company can share credit information with credit providers,
credit reporting agencies and collection agents, and can seek credit information from
such agencies to establish the credit worthiness of the Buyer. The Buyer also agrees
that the Company may conduct a search of the Personal Property Securities Register
for the purpose of establishing the credit worthiness of the Buyer.
22. WAIVER:
22.1 The Company's failure to enforce any of the terms of these Conditions or any Contact
shall not be construed as a waiver of any of the Company's rights.
23. ASSIGNMENT:
23.1 The Company may assign and/or novate its rights and/or obligations under these
Conditions and any Contract to any third party without the Buyer's consent.
23.2 The Buyer may not assign its rights and/or obligations under these Conditions and
any Contract to any third party without the Company's consent. A change in control
or in the beneficial ownership of the Buyer will be deemed to be an assignment.
24 TRUSTS
24.1 In the case of a Trust, the Buyer acknowledges and represents that:
(i) The trustees of the Trust will be liable for complying with these Conditions and
each Contract; and
(ii) The assets of the Trust will be available to meet payment for the Goods.
(v) There is any breach of any contract between the Company and the Buyer;
(vi) The Goods are seized by any other creditor of the Buyer or any other creditor
intimates that it intends to seize the Goods;
(vii) The Buyer parts with possession of the Goods or any of them otherwise than by
way of sale to its customers in the ordinary course of business;
(viii) A Court judgment is entered against the Buyer and remains unsatisfied for 7
days;
(ix) There is a material adverse change in the financial position of the Buyer.
11.2 In the event of a default by the Buyer of these Conditions or any Contract the
Company may terminate any or all Contracts and/or suspend any further deliveries
and shall be entitled, without prejudice to any other rights it may have, to recover as
damages from the Buyer the following:
(i) The value including any work completed or goods manufactured at the date of
termination;
(ii) The value of any work begun or goods begun to be manufactured at the date of
termination;
(iii) The value of any work begun or goods begun to be manufactured but not
completed at the date of termination, including the cost of materials, labour,
overheads and profit in connection therewith;
(iv) A sum representing any further profit which the Company would have made on
the Contract but for its determination, such profit to be determined by the
Company's Auditor whose decision shall be conclusive and binding on the Buyer
except in the case of manifest error.
12. STORAGE:
12.1 If for any reason the Buyer fails to take possession of the Goods within seven (7) days
from the date on which the Buyer is notified that the Goods or part thereof are ready
for delivery, then notwithstanding clause 6.1 and 15.2, risk in the Goods shall
forthwith pass to the Buyer and the Company shall be entitled to payment for the
Goods in accordance with these provisions. In the event that the Buyer fails to take
possession of the Goods within the said period of seven (7) days, the Company may
arrange storage of the Goods at its warehouse or some other suitable place and all
costs of, and of an incidental nature to, such storage shall be for the account of the
Buyer.
13. SETOFF:
13.1 The Buyer shall not be entitled to withhold or set off payment of any amount due to
the Company under the terms of any Contract whether in respect of any claim of the
Buyer in respect of faulty or defective Goods or for any other reason which is
contested or liability for which is not admitted by the Company.
14. FORCE MAJEURE:
14.1 In the event of war, invasion, act of foreign enemy hostilities (whether war has been
declared or not), civil war rebellion, revolution, insurrection or military or usurped
power or earthquake, the Company shall be relieved of liabilities incurred under this
Contract wherever and to the extent to which the fulfilment of such obligations is
prevented, frustrated or impeded as a consequence of any such event or by any
statute rules, regulations, order or requisitions issued by any government
department, council or other duly constituted authority or from strikes lockouts
breakdown of plant or any other causes (whether or not of a like nature) beyond the
Company's control. If an event of force majeure occurs, the Company may suspend
or terminate any Contract by written notice to the Buyer.
15. PERSONAL PROPERTY SECURITIES ACT 1999 / RIGHTS IN RELATION TO GOODS:
15.1 Terms used in this clause 15 that are defined in the PPSA have the same meaning in
this clause 15 as in the PPSA and these Conditions will be treated as a security
agreement.
15.2 The property and title in the Goods shall not pass to the Buyer until:
(i) Payment for those particular Goods has been received; and
(ii) Payment in full on any account owing by the Buyer for all Goods provided by the
Company has been received.
15.3 The Buyer shall stand in a fiduciary relationship to the Company as bailee and agent
for the Company in respect of the Goods supplied but not paid for and the Company
shall have the right to trace those Goods and the proceeds of the sale of those
Goods. The Buyer shall at all times hold the Goods in such a way as to identity them
at being Goods in which the title has not passed to the Buyer until payment is made
in full.
15.4 Until all the Goods are paid for, and monies owing to the Company have been paid
in full by way of cleared funds, the Company shall have a Purchase Money Security
Interest in all the Goods and all other Goods or materials to which they have been
attached or incorporated and the Company may register that security interest on the
Personal Property Securities Register.
15.5 The Buyer waives any rights to receive a copy of the verification statement under
section 148 of the PPSA and agrees, to the extent permitted by law, and in respect
of any arrangement between the Buyer and the Company:
(i) The Buyer has no rights under (or by reference to) section 114(1), 116, 120(2),
121, 125, 127, 129, 133 and 134 of the PPSA;
(ii) The provisions of Part 9 of the PPSA which are for the benefit of the Buyer or
place obligations on the Company applies only to the extent that they are
mandatory or the Company agrees to their application; and
(iii) There the Company has rights in addition to those in Part 9 of the PPSA, those
rights continue to apply.
15.6 In the event of a default by the Buyer of these Conditions or any Contract the
Company shall have the right, without prejudice to any other rights it may have, to:
(i) Without notice take possession at the Goods which are the subject to a security
interest in favour of the Company and trace the proceeds of sale and recover the
full amount owing to the Company together with any interest end costs;
(ii) Exercise any of its rights to resume possession of any Goods which remain its
property and over which has a security interest and without notice by its servants
and agents enter upon the Buyer's premises, or any place where the Goods may
be, without liability for trespassing or for any resulting damage to recover the
Goods, notwithstanding that the Goods may have been attached to other goods
which are not the Buyer's property, and the Buyer indemnifies the Company from
and against all costs, claims, demands and actions by any party arising from
such action.
15.7 The Company may recover the price of the Goods by auction and may apply to
bankrupt the Buyer or put it into liquidation, if the Goods are not paid for in
accordance with these Conditions notwithstanding that the property and the title of
the Goods has not passed to the Buyer and if the Company shall do so it may deal
with them in the terms of its security interest and shall not be required to give notice
to the Buyer in terms of Section 114 of the Personal Properties Securities Act 1999.