APPLICABLE TERMS AND ACCEPTANCE OF ORDER
These terms of contract between DEVICE TECHNOLOGIES
NEW ZEALAND LIMITED (the “Company”) and the Customer (the “Customer”) shall apply to all orders for medical, surgical, optometry and critical care products, medical instruments, equipment and implants sold on credit, loan or consignment terms (“Goods”) and repair services (“Services”) accepted by the Company and that in the case of conflict or dispute these terms and conditions shall prevail and take precedence over any document or oral message from the Customer. Where the Company fails to enforce any terms or conditions 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 acknowledges that these terms and conditions of trade constitute a Security Agreement as defined by the Personal Property Securities Act 1999 (ìPPSAî). For the purposes of the PPSA, Collateral shall include all and any Goods sold by the Company to the Customer and the proceeds thereof. The Customer agrees to give the Company a security interest in all of the Customers present and after-acquired property that the Company has supplied and 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.
The Company may register a Purchase Money Security Interest over the Goods and the Customer agrees to waive the right to a verification statement for purposes of s.148 of the Personal Properties Securities Act. 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 supplied to the Customer by the Company at any time.
1. Quotations and Price
The Company shall publish a price list in $NZ excluding GST of its Goods ruling at the time of the order or shall confirm the price of Goods or Services as a quotation and the Customer shall confirm acceptance by providing an order to the Company or signing the quotation or by sending and electronic confirmation to firstname.lastname@example.org OR fax 09 913-2009 OR phone 09 913-2000.
Quotations of Goods shall be valid for thirty (30) days from the date of publication but no quotation will constitute an offer unless signed by the Company and the Company may withdraw any quotation before the Customer’s signed acceptance.
The quotation or price may be increased if the Company suffers any cost increases which are beyond its control in the supply, production and delivery of Goods (due to currency changes or supplier price increases or taxation duties) between the date of contract (or where the contract arises from a quotation, the date of quotation) and the date of delivery, or if the Customer varies or alters the specifications of the quotation or the requirements for the Goods. All prices are exclusive of insurance, freight and other handling charges.
Orders for Services must be advised and forwarded to: Technical Service Department, Device Technologies New Zealand Limited, 47 Arrenway Drive, Albany. AUCKLAND. (Include: Sender Name and Address – Order Number – Description of the Goods to be repaired – Description about the problem of the Goods – Purchase date to verify warranty claim.
2. Conditions for Non-Catalogue Orders
Where the Customer orders Goods to be specially made and where the Goods are non-catalogue goods the Customer agrees:
That upon approval of a Company quotation by the Customer or Customer order to the Company, the Customer agrees that Goods that are designed or procured specifically for the Customer (meaning non standard or make to order) cannot be cancelled without the Customer paying the full cost of the manufacture or procurement of the Goods to the time of cancellation.
That where the Customer supplies the order according to the procedure described in Company quotation or tender and agreed by the Customer the Customer will not make any claim against the Company that the supply does not meet the Customers requirements with regard to completion of the order.
That where the Customer provides designs or specifications for the Company to supply the Goods the Customer will not hold the Company liable for any economic or consequential loss that may be incurred by the Customer as a result of supply from incorrect or mistaken designs, specifications or instructions given by the Customer.
3. Loaned and Consigned Goods
The Customer agrees that Goods supplied on loan or consignment by the Company under the care and responsibility of the Customer shall always remain the property of the Company and will be used only for purposes agreed by the Company and will not be loaned or sold to any third party. Loaned or consigned Goods must be used in their whole only and not re-assembled, parts changed or added or mixed with property of the Customer. The Customer further agrees to pay the Company for any loss damage to consigned Goods while under the care of the Customer.
4. Intellectual Property
The Customer agrees that where the Company provides intellectual property to assist the Customer in the form of patents, trademarks and copyrights or written instructions, drawings, plans, manuals and other information the ownership of such intellectual property shall always remain with the Company and the Customer further agrees that it shall not use the intellectual property in any manner whatsoever whether in complete form or in any way adapting or altering without the written permission of the Company.
Where the Company has followed plans, 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, specifications and instructions and including those arising from the infringement of patents, copyrights or trademarks by the Customer.
Payment shall be made upon delivery of the Goods except where the Company has agreed to provide credit to the Customer which terms shall be declared to the Customer at the time of the order or quotation otherwise payment will be the 20th of the month following date of invoice. The Customer shall make payment of all amounts due to the Company without any delay or deduction whether by way of set-off, counterclaim or otherwise.
The Customer agrees that the Company has sole discretion to apply payments from the Customer to any transaction or Company invoice notwithstanding that the Customer may have applied the payment to a particular transaction or invoice.
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 Customer’s cost, security for payment and/or the Company may suspend performance of its obligations under this contract until security is provided to its 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.
6. Interest for Late Payment
The Company may charge interest on any monies outstanding under this contract on a daily basis at a rate equal to 5% above the bank indicator lending rate of the Company. Interest is payable from the date payment was due until the date the Company receives payment. The right of the Company to charge interest is without prejudice to its other rights or remedies for the Customers default in failing to pay on the due date, and the Company may suspend performance of any of its obligations and secure any Goods it has supplied and in the Customers possession until payment is made in full.
Delivery will be performed upon supplying the Goods or Services to the site designated by the Customer or Customers agent or where the Customer uplifts the Goods from the Company. Completion of servicing repair of the Customer’s property shall constitute delivery of Services.
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 or consequential loss to the Customers property arising from delays in delivery. Goods may be delivered separately and in such case each delivery will be regarded as a separate contract and subject to the same payment terms. Failure or delay by the Company in making delivery at a specified time shall not cancel or repudiate the contract.
The Customer agrees that any employee or agent of the Customer who signs for delivery shall be authorised to accept delivery and the Company will not be held liable for missing Goods where a signature has proven delivery.
8. Risk, Ownership and Title
The Customer agrees that the Company has legal and equitable right to title in the Goods (ownership) until the contract price is paid. Regardless of ownership by the Company of the Goods, the Customer agrees to accept risk in the Goods for any loss, theft, damage or deterioration of or to the Goods upon delivery and while in the possession of the Customer. This means that the Customer agrees to properly store, protect and insure the Goods under its risk policy.
Failure by the Customer to properly protect and insure the Goods shall not absolve the Customer of the legal responsibility to the Company to pay for the Goods in the event of fire or loss damage or theft while under the care and responsibility of the Customer.
Notwithstanding that property in the Goods is retained by the Company, the Customer shall store the Goods separately in its premises and in such a way that they are identifiable as the property of the Company and shall not alter the Goods in any way or mix the Goods with other goods owned by the Customer unless the Customer has paid the Company in full. If the Goods, the subject of this contract, have become the constituent of mixed with or attached to any other goods or property of the Customer, then a proportion of the value of those goods or property shall belong to the Company.
The Company authorises the Customer to use the Goods in the ordinary course of business only as the fiduciary agent and bailee of the Company and to hold the proceeds of sale in a separate fund of trust for the Company until the Customer pays the Company in full without deduction or setoff.
The Company may revoke the authority given to the Customer to use the Goods that have not been paid in full by giving 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 this contract or any other contract between the Company and the Customer, and shall be deemed automatically revoked if the Customer shall commit any act of bankruptcy, enter into any composition or arrangement with creditors, or (in the case of a Company) do any act which would render it liable to be liquidated or if a resolution is passed or proceedings commenced for the liquidation of the Customer or a Receiver is appointed in respect of all or any assets of the Customer.
In any event where Goods remain unpaid by the Customer the Company has unreserved right to enter the premises 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.
The Customer shall inform its creditors of the terms upon which it buys Goods from the Company and must declare the Company reservation of title to any Trustee in Bankruptcy or Liquidator of the Customer or any Receiver of the Customers business or assets of the rights of the Company and title to the Goods.
9. Company Guarantee & Warranty
The warranty of catalogue Goods (excluding pneumatic equipment and all cutting instruments and drill bits, screws, taps chisels and osteotomes, reamers, periosteal elevators and gouges) shall be the warranty for the period declared by the original manufacturer of the Goods as to merchandisable quality and fitness for purposes declared in the Company catalogue, packaging or published or written specifications for the use of the Goods, otherwise the Company will not be responsible for failure of the Customer to satisfy itself as to the fitness of any Goods for any other purposes intended by the Customer.
Where the Company accepts liability for damage or defect covered by its guarantee it will repair the Goods or replace the Goods at no charge to the Customer. Where the Goods cannot be repaired or replaced the Company will refund the price of the Goods.
The Company shall not be liable for any economic or consequential loss to the Customer arising out of any breach of the obligations of the Company and the liability of the Company whether in contract or pursuant to any cancellation of the contract or in act or otherwise in respect to all claims for loss, damage or injury the Customer may regard, shall be linked at the option of the Company to the repair or replacement of the Goods or to the price of the Goods.
Where the Customer acquires the Goods for the business purposes of a business the parties agree to contract out of the provisions of the Consumer Guarantees Act 1993 to the extent permitted by that Act.
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, civil commotion, hostilities, strike or lock-out, act of God, fire, Governmental regulations or directions, or any other cause force majeure beyond its reasonable control. The occurrence of such an event shall not give the Customer a right of cancellation of the contract.
10. Claims for Damaged or Defective or Deteriorated Goods
The Company, at its discretion, will repair or replace any damaged or deteriorated Goods meaning Goods that are not of merchandisable quality or fit for the purposes described in its packaging, catalogues or published material provided that:
1. The Customer makes a claim specifically identifying the damage or defect(s) within seven (7) days of the damage of defect occurring; and
2. The Company has reasonable opportunity to investigate the claim.
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.
The Customer agrees that claims shall not be considered in respect of Goods which:
1. are not intact and in original condition and packaging.
2. have been improperly stored causing damage or deterioration.
3. have been altered in any way different to the conditions in which they have been supplied.
4. have been mixed with or attached to other goods of the Customer causing damage or deterioration to the Goods.
5. are outside of the warranty period.
11. Claims for Goods incorrectly ordered
The Company at its discretion may give credit for returned Goods which are incorrectly ordered by the Customer and which are not damaged or defective and have not been delivered in error. The Company will deduct fifteen per cent (15%) of the value of the Goods as an administration and handling cost provided the Goods are delivered to the Company within seven (7) days after original delivery and at the Customer’s cost and in the same condition and packaging in which they were dispatched, with a copy of the invoice and packing slip.
12. Grounds for Termination by the Company
This contract may be terminated by the Company immediately by written notice to the Customer if an Event of Default of payments due to the Company by the Customer occurs for any reason.
Upon the termination of this agreement for any reason, all rights of the Customer granted by this agreement shall terminate. Terminations of this contract shall not relieve the Customer of its obligations to pay all monies 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 contract shall not relieve the Customer from liability arising from any antecedent breach of the terms of this Contract.
13. Applicable Law for Dispute and Arbitration
In the event of any dispute between the Company and the Customer arising out of this contract, the substantive laws of New Zealand shall apply and such dispute shall be referred to a Mediator to be agreed between the parties on a shared cost basis 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.
Where the Customer is a company or trust or partnership, the person(s) referred to as guarantor(s) in this contract shall personally guarantee the obligations of the Customer