Terms & Conditions of Trade
1) Defined Terms “Goods” means all goods supplied from time to time by us to you and (unless the context otherwise requires) includes all proceeds of such goods, provided that:
(a) where the Goods supplied are your Inventory, then all references to Goods in these Terms shall, in respect of those Goods, be read as references to Inventory; and
(b) where the Goods supplied are not Inventory then all references to Goods in these Terms shall, in respect of those Goods, mean the Goods described in any one or more of the relevant order form, packing slip or invoice (or its equivalent, whatever called) relating to those Goods, on the basis that each such order form, packing slip or invoice (or its equivalent) shall be deemed to be incorporated in, and form part of, these Terms. TJ & AM Cornes Partnership T/A Dyno NZ (“The Vendor”, “our”, “us” etc) “Inventory” has the meaning given to that term in the PPSA.“PPSA” means the Personal Property Securities Act 1999 (as amended or substituted from time to time). Unless the context otherwise requires, words and phrases shall have the meanings given to them in, or by virtue of, the PPSA.
2) Terms of contract Any Goods or Services supplied to you shall be subject to these Terms unless we agree in writing to change them. If you accept goods or Services from us, or deliver Goods to us for servicing, those actions by you will be deemed to be acceptance of these Terms, notwithstanding anything that may be stated to the contrary in your enquiries or your order.
3) Acceptance Each order shall constitute acceptance by the Customer of these Terms and Conditions of Trade.
4) Price
1.1 The price for goods and Services will be either as quoted to you in writing or, if no written quote is provided, at our standard charges applying at the time. Unless otherwise agreed in writing any quoted price may be altered prior to delivery of Goods or provision of Services to you, if our costs fluctuate materially. We may withdraw any quotation before it is accepted, and in any event any quotation will lapse without notice 30 days after it is given.
1.2 Unless otherwise agreed in writing all freight, insurance and delivery charges will be additional to any price quoted.
5) Payment
1.1 Payment for goods and Services must be made by the 20th day of the month following the date of the invoice relating to those Goods or Services. Payments will not be credited until cleared. For non account customers, payment 7 Days on invoice.
1.2 If full payment for the Goods or Services is not made on the due date, then without prejudice to any other remedies available to us:
(a) we may cancel or withhold supply of further Goods or Services;
(b) interest on monies overdue shall be charged on a monthly basis and be calculated on a daily basis at a rate of 2.5% per month during such default, and interest shall continue to accrue both before and after judgment; and
(c) you shall be responsible for all legal and collection costs incurred by us in recovering such monies.
(d) An administration fee may be charged on any overdue amounts
1.3 We may from time to time vary your credit limit with us at our discretion, in relation to further purchases of Goods or Services. If any purchase would be in excess of your credit limit, we reserve the right to require, prior to delivery of the Goods or Services, payment in cash of the amount by which the cost exceeds your credit limit. Before supplying you with Goods or Services, we may at our discretion require all or any of the following:
(a) payment in advance;
(b) a guarantee of payment;
(c) a deposit of up to 50%;
(d) progress payment;
(e) Projects may be subject to 40% deposit with the order, 50% prior to dispatch and 10% upon successful commissioning or 30days after shipping.
1.4 We may set off against any monies owed by us to you any monies which you owe to us or any of our subsidiaries, related companies or shareholders so that our obligation to you shall be to pay the net balance only.
1.5 If any of our subsidiaries, related companies or shareholders owe monies to you then they may set off against those monies any monies owed by you to us in respect of any Goods or Services. They will only be liable to pay the net balance owing. You agree that this provision is made for the benefit of our subsidiaries, related companies and shareholders and may be enforced directly by them in their own respective names.
1.6 Your obligation under these Terms shall be to pay the full amount owing under these Terms free of all deductions or rights of set off.
6) Quotation Where a quotation is given by the Vendor for the supply of Goods and Services:
A: unless otherwise agreed the quotation shall be valid for thirty (30) days from the date of issue;
B: the quotation shall be exclusive of Goods and Services Tax unless specifically stated to the contrary;
C: the Vendor reserves the right to alter the quotation because of circumstances beyond its control.
7) Ownership
1.1 Ownership in the Goods shall not pass upon delivery, but shall remain with us until full payment for all monies owing by you to us has been made. Until all monies have been paid:
(a) You will hold the Goods for us in a manner which enables them to be identified as our Goods. As your agent, we (and our employees and agents) may, without prior notice, enter any land or premises where the Goods are kept in order to take possession of and/or remove them and you indemnify us against any liability incurred in connection with such entry, taking of possession and removal.
(b) If you sell or use any Goods, the proceeds of sale or use (in whatever form) shall be our property and you must pay all such proceeds to us or otherwise deal with such proceeds as we direct irrespective of any terms of credit between you and us.
(c) If we take possession of any Goods in accordance with this clause we may sell or dispose of the Goods in such manner and generally on such terms and conditions as we think fit. You and we agree that section 109(1) of the PPSA is contracted out of in respect of particular Goods if and only for so long as we are not the secured party with priority over all other secured parties in respect of those Goods.
8) Risk and Delivery from the time of dispatch to the Customer by the Vendor, risk in all Goods supplied will pass to the Customer and any loss, damage or deterioration to the Goods will be borne by the Customer. The Customer will notwithstanding any loss, damage or deterioration to the Goods remain liable to pay for the goods.
9) Time of Performances
Time will in no case be of the essence in respect of the delivery of Goods or the provision of Services. The Vendor will not be responsible for any delay in the delivery of Goods or the provision of Services and the Customer will not be entitled to cancel orders because of any such delay. Dates for delivery of Goods and provision of Services are given in good faith and are not to be treated as a condition of sale or purchase
10) Liability
1.1 The Vendor’s liability to the Customer shall be limited to the value of the Order supplied.
1.2 The Sale of Goods Act 1908, the Fair Trading Act 1986 and other statutes may imply warranties or conditions or impose obligations upon the Vendor which cannot by law (or which can only to a limited extent by law) be excluded or modified. In respect of any such implied warranties, conditions or terms imposed on the Vendor the Vendor’s liability shall, where it is allowed, be excluded or if not able to be excluded only apply to the minimum extent required by the relevant statute.
1.3 Except as otherwise provided above the Vendor shall not be liable for any loss or damage of any kind whatsoever, arising from the supply of Goods and Services by the Vendor to the Customer including consequential loss whether suffered or incurred by the Customer or another person and whether in contract or tort (including negligence) or otherwise and irrespective of whether such loss or damage arises directly or indirectly from Goods and Services provided by the Vendor to the Customer.
1.4 The Customer shall indemnify the Vendor against all claims and loss of any kind whatsoever however caused or arising and without limiting the generality of the foregoing of this clause whether caused or arising as a result of the negligence of the Vendor or otherwise, brought by any person in connection with any matter, act, omission, or error by the Vendor its agents or employees in connection with the Goods and Services.
11) Limitation of Damages
(a) No liquidated damages are payable unless specifically agreed by us in writing.
(b) The Customer agrees to indemnify and hold us our servants and agents and each of them harmless against all claims, losses or damages arising directly or indirectly out of the Customer’s use possession or ownership of the goods or any part thereof.
(c) We (including our employees, agents and subcontractors) shall not be liable in contract, tort under statute or otherwise for any loss or economic loss howsoever arising which is caused, contributed to, or was attributable to any defects or any negligent act or omission on our behalf or our employees, agents and/or subcontractors except to an amount strictly limited in respect of all goods and services supplied by us whether under this contract or otherwise to a total sum of the value invoiced for the goods and services or to a total sum of $5,000.00 (whichever is the lesser).
12) Warranties
1.1
(a) Except to the extent of written warranties given by us to you, all warranties and representations including those expressed or implied by law, in respect of Goods sold or Services supplied are to a maximum of 12 months on goods manufactured by Dyno NZ.
(b) Where applicable, manufacturer’s warranties will apply.
1.2 We shall not be liable:
(a) where you have altered or modified the Goods, misapplied the Goods, or have subjected them to any unusual or non-recommended use, servicing or handling;
(b) for loss caused by any factors beyond our control;
(c) for any indirect or consequential loss of any kind;
(d) for any second hand Goods;
(c) where the terms of any written warranty have not been complied with, or any manufacturers’ handbook provided to you has not been complied with;
(d) for normal wear and tear.
13) Construction Contracts Act All orders that fit within the meaning of a Construction Contract pursuant to section 5 of the Construction Contracts Act 2002 ("CCA") are subject to the CCA and this clause.
(a) In providing the Services, should the Vendor encounter unforeseen or hidden problems or unsuitable conditions, the Vendor shall contact the Customer forthwith and provide the Customer with an estimate of further costs to complete the work. The Customer shall then have the option of accepting the further costs, or terminating the contract and paying to the Vendor all costs incurred to the date of termination.
(b) The Customer acknowledges that the Vendor is entitled to progress payments in accordance with sections 16 and 17 of the CCA and will make payment on the due date for payment as defined in section 18 of the CCA.
(c) The Vendor retains the right to claim under the CCA by submitting a Payment Claim as defined in the CCA, in writing, identifying the contract, identifying the item, the period to which it relates, the amount claimed, when it is due to be paid and detailing how the claim is calculated.
(d) In the event of a dispute regarding the Payment Claim the parties shall resolve the matter using the binding fast track process in Part 3 of the CCA.
14) Access for Installation and Provision of Services
A. The Customer shall provide for the purposes of installation and provision of Services at no cost to the Vendor, all necessary facilities including power, lighting, unloading, hoisting and lifting facilities, labour, site preparation and employee amenities which comply with the statutory requirements.
B. Upon the Vendor delivering Goods or providing Services to the Customer, the Customer shall ensure adequate safe storage facilities are provided for protection against theft and damage of the Goods or any equipment or other items belonging to the Vendor at no cost to the Vendor.
C. The Customer acknowledges that it solely shall be responsible for arranging and providing convenient access for the Goods and provision of Services to the proposed place of installation including but not limited to access thereto by way of stairs, scaffolding, lift or crane as the case may require.
D. If the Customer fails to supply convenient access as aforesaid for any reason then the Vendor may make a further charge to the Customer to cover the additional costs it incurs arising from such failure as the Vendor considers reasonable.
E. If the Customer is not in a position to accept or take delivery of the Goods or accept provision of the Services as scheduled the Customer shall be responsible for all additional charges caused thereby.
F. Where installation or supply of the Goods or provision of the Services is required of the Vendor by the Customer and installation or supply is required to be co-ordinated with other trades the Customer shall provide the Vendor with a schedule detailing all relevant information relating to installation or supply with sufficient time allowed for the Vendor to meet delivery or supply dates.
G. The delivery or supply period shall be extended to cover delays caused by strikes, lockouts, prohibitions, nonavailability of materials or any circumstances beyond the Vendor's control.
H. Where you grant access to us over your property for the purposes of our providing Goods or Services to you, you shall ensure compliance with all legislation and regulations in relation to the property, including ensuring the property is in a safe state for us to undertake any necessary work.
I. If we have any concerns regarding the safety of our employees or contractors, in relation to the access and use of your property, we shall be entitled to halt all work on your property, until such time as our safety concerns have been resolved. In that case you shall be responsible for payment of work undertaken by us to that point.
15) Return of Goods Claims must be made within 7 days of receipt of the Goods. Any Goods returned to us must be returned freight paid. All claims must be accompanied by the packing slip or delivery docket, and a copy of the invoice.
1.1 Goods “ex stock” may be returned freight paid for a handling fee of 10%, provided the Goods (together with a copy of the relevant invoice) are returned within 14 days of delivery of the Goods. You may only return Goods under this clause if the Goods are in the same condition as when purchased. Goods bought on “special” are not returnable.
1.2 Goods specifically purchased, fabricated or machined at the customer’s request are not returnable.
16) Mediation If at any time any question, dispute or difference whatsoever shall arise between the Customer and us, in relation, or in connection with any contract arising from this quotation either party may give to the other notice in writing within seven days of the existence of such question, dispute or difference and in the first instance the parties shall confer at least once to resolve the dispute or to agree on methods of doing so. At such time a representative with the authority to agree the matter shall be present. Failing agreement, the same shall thereupon be referred to the arbitration in New Zealand of a person to be mutually agreed upon. The submission shall be deemed to be a submission to arbitration within the meaning of the terms of Arbitration Laws in force in New Zealand
17) Cancellation
1.1 Cancellation by you: You may not cancel any order for Goods or Services or part of it without our written consent. If you do so, in addition to any other rights we may have, we may retain any deposit paid and charge you for any costs incurred to date.
1.2 Cancellation by us: We shall be entitled without liability to you to cancel an order or delivery of an order or refuse and order if:
(a) you become insolvent, enter into a scheme of arrangement with creditors (other than with our consent) or you cease or threaten to cease to carry on all or a material part of your business, or have a receiver appointed in respect of any or all of your assets or other steps are taken for your dissolution;
(b) you or we are refused any licences, consents or permits in respect of the Goods or Services;
(c) An extraordinary event occurring or a material change affecting the affairs or the financial condition of the customer, which gives the vendor reasonable grounds to conclude that the customer may not, or may be unable to, perform or observe its obligations under the contract; or
(d) you breach any term of these Terms.
18) Waiver or variation: Waiver or variation of these Terms by us will only be effective if given in writing by an authorized member of our staff. If we waive any of these Terms the waiver will not affect our rights under these Terms at any future time.
19) Severability: 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.
20) Governing law: The Contract and these Terms will be interpreted in accordance with and governed by the laws of New Zealand and the New Zealand courts will have non-exclusive jurisdiction in respect of all matters between us.
21) PPSA 1999 and as amended
1.1 Security: You acknowledge and agree that:
(a) by assenting to these Terms, you grant a security interest (by virtue of the retention of title clause in clause 5 of these Terms) to us in all Goods previously supplied by us to you (if any) and all after acquired Goods supplied by us to you (or for your account); and
(b) these Terms shall apply notwithstanding anything, express or implied, to the contrary contained in your purchase order.
1.2 Financing Statement: You undertake to:
(a) sign any further documents and/or provide any further information (which information you warrant to be complete, accurate and up-to-date in all respects) which we may reasonably require to enable registration of a financing statement or financing change statement on the Personal Property Securities Register;
(b) not register a financing change statement or a change demand in respect of the Goods (as those terms are defined in the PPSA) without our prior written consent; and
(c) give us not less than 14 days prior written notice of any proposed change in your name and/or any other change in your details (including, but not limited to, changes in your address, facsimile number, trading name or business practice).
1.3 Waiver You waive your right to receive a verification statement in respect of any financing statement or financing change statement relating to the security interest.
1.4 Contracting out (a) You agree that nothing in sections 114(1)
(a), 133 and 134 of the PPSA shall apply to these Terms and, with our agreement, contract out of such sections.
(b) To the maximum extent permitted by law you waive your rights and contract out of your rights under the sections referred to in section 107(2)
(c) to
(e) and
(g) to
(i) of the PPSA.
22) Notices: Any notice to be given to the customer shall be deemed to be given 48 hours after it being posted by ordinary post or immediately if sent by email, fax or telegram to the physical address, email address or appropriate facsimile number of the customer set out in the contract or to the customer’s registered office or to the customer’s last known address.
23) Indemnity The customer shall comply with all instructions of the vendor in relation to the handling, fitting and installation and use of the equipment and notwithstanding such compliance the customer shall keep the vendor indemnified against all costs, claims, demand expenses and liabilities of whatsoever nature, including without prejudice to the generality of the foregoing, claims for death, personal injury, damage to property and consequential loss (including loss of profits) which may be made against the vendor or which the vendor may sustain, pay, incur as a result of or in connection with the manufacture, sale, export, import or use of the equipment unless such cost, claim, demand, expense or liability shall be directly and solely attributable to the negligence of the vendor or the negligence of a duly nauthorised employee or agent of the vendor.
24) Merger with Other Goods: If the Goods are attached, fixed or incorporated into any property of the Customer, by way of any manufacturing or assembly process by the Customer or any third party, title in the products and Services shall remain with the Vendor until the Customer has made payment for all= Goods and where those Goods are mixed with other property so as to be part of or constituent of any new goods title to those new goods shall be deemed to be assigned to the Vendor as security for the full satisfaction by the Customer of the full amount owing by the Customer to the Vendor.
25) Health and Safety: The customer shall be responsible to ensure that applicable health and safety regulations are observed and other appropriate steps taken in relation to the storage, handling and use of the equipment and the health and safety of the Vendor’s staff working on the customer’s premises.
26) Force majeure: Neither the Vendor nor the Customer will be liable to the other for any breach of this Agreement by any extraordinary occurrences which are beyond the reasonable control of the party in question.
27) Privacy: The Customer irrevocably agrees that: the personal information provided, obtained and retained by the Vendor about the Customer will be held and used for the provision of Services to the Customer; the Vendor may provide any personal information to any third party and to obtain any information concerning the Customer from any other source; they must notify the Vendor of any changes in circumstances that may affect the accuracy of the information provided by the Customer to the Vendor. If the Customer is a natural person the Customer has the right of access to and correction of any personal information held by the Vendor.
28) Electronic Communications: If the Customer has provided the Vendor with an email address for communication purposes the Vendor will fully comply with all requirements under the Unsolicited Electronic Messages Act 2007.
29) We reserve the right to change these terms and conditions of sale at any time and any amendments will be forwarded to the customer.
30) Compliance with laws: The Vendor will comply with all legislation, codes and standards specified in the Contract and the Vendor is under no liability as a failure to meet any other legislation, codes or standard. If, after the Contract date, there are any changes in any legislation, regulations or standards with which the vendor must comply, then the Customer agrees to reimburse or pay to the vendor an amount equal to additional cost incurred by the Vendor relating to such compliance.
31) Assignment : The customer may not assign or transfer or purport to assign or transfer any of its rights or obligations under or in connection with the contract to any other person whatsoever.